Exhibit 10.62
[GUPTA LOGO]
SERVICE AGREEMENT
SERVICE AGREEMENT made MARCH 27, 2002 (the "Effective Date") between GUPTA
TECHNOLOGIES, LLC ("GUPTA"), a Delaware limited liability having offices at 000
Xxxxxx Xxxxx, Xxxxxxx Xxxxxx, XX, 00000, XXX and OFFSHORE DIGITAL SERVICES INC.,
DBA SONATA ("Service Provider"), a California corporation having offices at
00000 Xxxxx Xxxx, Xxx Xxxxxxx XX 00000, XXX.
WHEREAS, the parties desire to set forth the terms and conditions upon
which GUPTA may from time to time obtain Service Provider's services.
NOW, THEREFORE, the parties agree as follows:
1. Term. The term of this Service Agreement shall begin on the Effective
Date and shall continue in force for one (1) year ("Term") unless terminated
earlier as herein provided. GUPTA shall have the right to terminate this Service
Agreement, or any Work Order under this Service Agreement, at any time upon
seven (7) days notice. Service Provider may terminate this Service Agreement by
giving GUPTA written notice, such termination to be effective upon completion of
any and all outstanding Work Orders.
2. Scope of Work. Each individual Work Order issued by GUPTA shall have
one or more statement(s) of work ("SOW") attached thereto and made a part
thereof in which specific assignments shall be authorized. Individual Work
Orders shall be on a firm and fixed price ("Fixed Price") basis unless the Work
Order specifically provides for work to be on a time and materials ("Time and
Materials") basis. In the event a Work Order for Time and Materials work
contains a dollar limitation, GUPTA shall not be liable (under any legal theory)
for work in excess of such limitation. Each Work Order and related SOWs,
including and any and all future SOWs, when executed by an authorized
representative of each party, shall be made part of this Service Agreement by
reference herein.
3. Compensation. Service Provider's compensation for the services
authorized by the Work Order to this Service Agreement is set forth in Exhibit A
("Work Order Number ___"), or is as set forth in any subsequent Work Orders to
this Service Agreement.
4. Taxes, Benefits and Licenses. Service Provider agrees that Service
Provider is solely responsible for the following with respect to its business
and its employees or agents: (a) the payment of all federal, state, and local
taxes and all appropriate deductions or withholdings, unless otherwise provided
for in Exhibit A to this Service Agreement; (b) the payment or provision of any
unemployment insurance benefits, state disability benefits, vacation, overtime
or holiday pay, health, medical, dental or group insurance or any pension or
profit sharing; (c) obtaining any applicable business or other commercial
licenses; and (d) the hiring, firing, supervising and payment of compensation or
other benefits to any agent, independent contractor, employee or assistant
engaged by Service Provider (with the approval of GUPTA's Project Manager) to
perform any aspect of the Work Order.
5. Charges. Unless otherwise agreed to, Service Provider shall be
responsible for providing all necessary administrative or support services
required for performance under the Work Order, including, but not limited to,
secretarial, duplicating and office services/support. If performing on a Time
and Materials basis, Service Provider shall xxxx XXXXX monthly for charges
actually incurred under the Work Order. If performing on a Fixed Price basis,
Service Provider shall xxxx XXXXX upon successful completion of all work set
forth in the Work Order. It is understood by Service Provider that GUPTA is
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not obligated to pay Service Provider for any work performed or expenses
incurred unless expressly authorized under a Work Order signed by GUPTA.
6. Status of Parties, Insurance. Service Provider shall be, and at all
times during this Service Agreement shall remain, an independent contractor
vis-a-vis GUPTA. Neither Service Provider nor its employees, if any, performing
work under this Service Agreement shall have any rights to GUPTA's usual
employee fringe benefits, including, but not limited to, workers' compensation
benefits, and in no event is any contract of agency or employment intended.
Service Provider shall maintain statutory worker's compensation insurance and,
whenever Service Provider or its employees, if any, are on GUPTA's or its
customer's premises, Service Provider shall maintain public liability insurance
in an amount of not less than One Million Dollars ($1,000,000.00) per
occurrence. Service Provider shall comply with all applicable laws concerning
its employees, if any, including but not limited to the Immigration Control Act
of 1986, Fair Labor Standards Act and applicable wage and hour laws. Service
Provider shall assume all responsibility and liability for the actions or
omissions of its employees, if any, performing work pursuant to this Service
Agreement.
7. Indemnity.
7.1 Except for a breach of Paragraphs 7.2, 9 or 11.1, Service
Provider shall not be liable for any indirect or consequential damages incurred
by GUPTA (including but not limited to business loss, tax penalties or other
liabilities to any government authority, loss of profits, business interruption
or loss or corruption of data) and arising from use of Millennium Compliance -
Year 2000 compliance- thereof OR consulting services even if Service Provider
was previously informed of the possibility of such damages.
7.2 Service Provider shall indemnify and hold GUPTA harmless from
any award of costs and damages against GUPTA and shall pay any settlement costs
for any action of infringement of any third party copyright, patent right, trade
secret or any other intellectual property right as a result of providing
services under this Service Agreement and not in combination with other items,
including modifications or enhancements not provided by Service Provider if the
infringement would not have occurred if such the other items were not
introduced; provided Service Provider is directly responsible for such
infringement and GUPTA permits Service Provider to defend, compromise or settle
same and gives Service Provider all available information, reasonable assistance
and authority to enable Service Provider to do so.
7.3 GUPTA shall indemnify and hold Service Provider harmless from
any award of costs and damages against Service Provider for any action of
infringements of any third party copyright, patent right, trade secret or any
other intellectual property right as a direct result of Gupta providing source
code and other software, manuals, modules etc. under this Service Agreement to
Service Provider; provided Service Provider (a) provides immediate notice of any
such action or claim; (b) permits GUPTA to defend, compromise or settle same and
(c) gives GUPTA all available information, reasonable assistance and authority
to enable GUPTA to do so.
8. Duties. Service Provider's duties shall include, as applicable, the use
of its skill and knowledge in completing the authorized Work Order and the
completion of reasonable documentation as shall be required by GUPTA to describe
the content, purpose, methods and operation of any programs and procedures
created by Service Provider.
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9. Intellectual Property. Service Provider shall immediately call to the
attention of GUPTA, and shall on demand at any time during or after the term of
this Service Agreement, absolutely and without reservation assign, transfer, and
set over to GUPTA all right, title and interest of Service Provider in and to
any product, improvement, or process which may directly or indirectly be
utilized in connection herewith, which Service Provider may discover, make,
invent, conceive, develop, or design, solely or jointly with others, during
performance of a Work Order, or which was directly or indirectly discovered,
made, invented, conceived, developed or designed on the basis of an idea or
ideas of Service Provider, conceived, developed or designed on GUPTA's time or
at the expense of GUPTA. Service Provider covenants and agrees to sign any
papers and do all rightful acts or things necessary or appropriate to secure for
GUPTA or its successors or assigns, any and all rights, title and interest
relating to such product, improvement, or process, including patents and
copyrights in the United States and foreign countries. Service Provider agrees
that any work performed hereunder shall be considered a "Work for Hire" and,
that for purposes of 17 U.S. Code Section 201 (b), GUPTA owns all rights
comprised in any copyright obtained or obtainable by Service Provider. Service
Provider shall have no right to adapt, modify or create derivative works of
GUPTA's software or documentation except as specifically authorized by GUPTA,
and then solely to perform services for GUPTA pursuant to a Work Order. Service
Provider may not use any such derivative work for any other purposes, and may
not in any event distribute them to any third party including other GUPTA
licensees.
10. Infringement Warranty. Service Provider warrants that any writings,
proposals, products, systems, improvements, or processes which Service Provider
designs for GUPTA or for GUPTA's customers in any work performed under this
Service Agreement will in no manner whatsoever infringe upon the patents, patent
applications, trade secrets, copyrights or trademarks of Service Provider or any
third party and that GUPTA shall have full and unencumbered rights thereto.
11. Restrictive Covenants.
11.1. Service Provider shall hold Confidential Information of GUPTA,
its customers, and licensors in confidence, and without written permission from
GUPTA will not disclose to any person or use for its own benefit, any such
information. "Confidential Information" includes without limitation the terms of
this Service Agreement, computer software programs developed or licensed by
GUPTA, including all documentation and methods or concepts utilized therein, all
adaptations and modifications thereto and derivative works thereof, and related
materials and information. Confidential Information also includes any other
information identified by GUPTA, its licensors, or customers as proprietary or
confidential, or which would reasonably be understood under the circumstances to
be confidential. All Confidential Information shall remain the sole property of
GUPTA. Information will not be considered to be Confidential Information if (i)
available to the public other than by a breach of this Service Agreement; (ii)
rightfully received from a third party not in breach of any obligation of
confidentiality; (iii) independently developed by a party without access to
Confidential Information of GUPTA; (iv) known to the Service Provider at the
time of disclosure; (v) produced in compliance with applicable law or a court
order, provided GUPTA is given notice and opportunity to intervene; or (vi) it
does not constitute a trade secret and more than five (5) years have elapsed
from the date of disclosure. In addition to any other rights or remedies
available, GUPTA shall be entitled to enforcement of such obligations by court
injunction. GUPTA may require Service Provider's employees, if any, performing
work on behalf of Service Provider pursuant to a Work Order hereunder to execute
an Acknowledgment Agreement in the form of Exhibit A acknowledging that any
information learned in the course of work performed pursuant to a Work Order is
governed by the terms of this Service Agreement.
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11.2 During the Term of this Service Agreement, and for one (1) year
after termination of this Service Agreement, both parties agree not to directly
or indirectly solicit for employment any employees of the other.
11.3 Service Provider will not issue a press release or other public
statement regarding Service Provider's relationship with GUPTA or this Service
Agreement without the advance written consent of GUPTA.
12. Miscellaneous.
12.1. All prior or contemporaneous agreements, contracts, proposals,
promises, and representations, if any, between the parties or their
representatives with respect to the subject matter hereof are superseded by, and
merged into, this Service Agreement and this Service Agreement constitutes the
entire understanding between the parties with respect to the subject matter
hereof. No waiver or modification of the terms hereof shall be valid unless in a
writing signed by the party to be charged and then only to the extent therein
set forth. Neither the course of dealings between the parties nor trade usage
shall act to modify the terms of this Service Agreement. Any provisions set
forth on the back of the Work Order shall not be applicable if in conflict with
this Service Agreement.
12.2. If any portion of this Service Agreement is determined by any
court of competent jurisdiction or caused by Federal or State action to be
wholly or partially unenforceable, for any reason, such unenforceability shall
not affect the balance hereof.
12.3. All notices and communications between the parties shall be in
writing and sent by (i) certified mail, return receipt requested, (ii) overnight
courier, or (iii) facsimile (with original to follow) to the address of such
party as set forth at the beginning of this Service Agreement (addressed in the
case of GUPTA to the attention of the Legal Department), or to such other
address(es) of which notice is given in accordance with this section, and shall
be deemed given when received.
12.4. This Service Agreement shall be governed by and interpreted
under the law of the State of California.
12.5 This Service Agreement shall not be assignable by Service
Provider without the written consent of GUPTA.
IN WITNESS WHEREOF, the parties have caused this Service Agreement to be
executed by their duly authorized representatives as of the date first above
written.
OFFSHORE DIGITAL SERVICES INC., DBA SONATA GUPTA
Service Provider
By: ____________________________ By: ______________________
Printed Name: __________________ Printed Name: ____________
Title: _________________________ Title: ___________________
Taxpayer Identification Number: __________________________
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EXHIBIT A
WORK ORDER
NUMBER ONE
THIS WORK ORDER is attached to and made a part of the Service Agreement
dated MARCH 27, 2002 between GUPTA TECHNOLOGIES, LLC ("GUPTA") and OFFSHORE
DIGITAL SERVICES INC., DBA SONATA ("Service Provider"). Service Provider and
GUPTA hereby agree that Service Provider will perform the following services for
the benefit, and pursuant to the request, of GUPTA on the terms and conditions
set forth below and in the Service Agreement. In the event the terms set forth
below are inconsistent with, or otherwise conflict with, the terms and
conditions of the Service Agreement, the terms of this Work Order shall govern
for purposes of the work to be performed hereunder.
DUTIES: Specific assignments shall be authorized in the statement(s) of work
("SOW"), attached hereto and made a part hereof (including any subsequent SOWs
to this Work Order). Each SOW, including any and all future SOWs, when executed
by an authorized representative of each party, shall be made part of both this
Work Order and the Service Agreement by reference herein.
The services described in this Work Order shall be performed on behalf of
Service Provider by:
NAME OF SERVICE PROVIDER'S EMPLOYEE OR AGENT JOB TITLE
-------------------------------------------- ----------------
Xxxxxx Xxxxxx Project Lead
Xxxxxxxxxxx Kempasagara QA Lead
Xxxxxx Xxxxx Developer/Tester
Xxxxx Xxxxxxxx Developer/Tester
Service Provider understands and agrees that it must obtain GUPTA's prior
written consent as to each and every employee or agent (other than those listed
above) that it intends to have perform the services under in this Work Order.
A detailed description of the services to be performed by Service Provider is as
specified in the statement(s) of work ("SOW"), attached hereto and made a part
hereof (including any subsequent SOWs to this Work Order).
COMPENSATION:
Service Provider shall be compensated on a time and materials basis for
the duties to be performed pursuant to this Work Order. Service Provider and
GUPTA recognize and agree that Service Provider shall complete the duties
specified in each SOW on or before the completion date that is specified in each
SOW. Service Provider shall be compensated at a rate equal to $9,000 (Nine
thousand U.S. Dollars) per month.
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The monthly compensation is based on Service Provider providing a team of four
(4) employees or agents with each such employee or agent providing 170 (one
hundred and seventy) personhours of work per month. The number of personhours
has a contingency of +/- 5% (five percent); any effort outside this contingency
must be pre-approved in writing by GUPTA. The total fee paid to Service Provider
for services provided pursuant to this Work Order until its termination date on
March 26, 2003 is not to exceed $125,000 (One hundred twenty-five thousand U.S.
Dollars), unless this Service Agreement is terminated earlier as herein
provided.
All Service Provider invoices must be accompanied by a signed copy of each
corresponding Service Provider employee's or agent's timesheet, and should be
sent by Service Provider directly to: Gupta Technologies, LLC, Accounts Payable
Department, 000 Xxxxxx Xxxxx, Xxxxxxx Xxxxxx, XX 00000, Attn: Accounts Payable
Administrator. Provided that Accounts Payable department has received an invoice
approved by the designated Gupta Project Manager, all invoices are due and
payable by GUPTA Net 30 (thirty) days after receipt of the applicable invoice by
GUPTA's Accounts Payable Department.
Service Provider agrees that no compensation will be due from GUPTA beyond
what has been expressly outlined in this Exhibit A, unless approved in writing
in advance by GUPTA.
IN WITNESS WHEREOF, the parties have caused this Work Order to be executed
by their authorized representatives as of the date first above written.
OFFSHORE DIGITAL SERVICES INC., DBA SONATA GUPTA
Service Provider
By: ___________________________ By: ________________________
Printed Name: _________________ Printed Name: ______________
Title: ________________________ Title: ______________________
Taxpayer Identification Number: ______________________________
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EXHIBIT B
ACKNOWLEDGEMENT AGREEMENT
__________________("Service Provider's Employee") acknowledges that GUPTA
TECHNOLOGIES, LLC'S ("GUPTA") software systems, all adaptations and
modifications thereto, and all derivative works thereof are and shall be deemed
to be the sole property of GUPTA. Service Provider's Employee acknowledges that
certain obligations of confidentiality with respect to such software and with
respect to GUPTA's business and that of its customers are imposed upon OFFSHORE
DIGITAL SERVICES INC., DBA SONATA ("Service Provider"), on behalf of itself and
its employees, pursuant to the Service Agreement dated MARCH 27, 2002 between
GUPTA and Service Provider.
_________________________________________
Service Provider's Employee
Printed name: ___________________________
Address: ________________________________
________________________________
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ADDENDUM ONE TO THE
SERVICE AGREEMENT
BETWEEN
GUPTA TECHNOLOGIES, LLC ("GUPTA")
AND
OFFSHORE DIGITAL SERVICES INC., DBA SONATA ("SERVICE PROVIDER")
This Addendum One (the "Addendum"), effective March 28, 2003 ("Effective Date"),
to the Service Agreement dated March 27, 2002 (the "Agreement", is between GUPTA
TECHNOLOGIES, LLC ("GUPTA"), a Delaware limited liability company with corporate
offices at 000 Xxxxxx Xxxxx, Xxxxxxx Xxxxxx, XX, 00000, XXX, and OFFSHORE
DIGITAL SERVICES INC., DBA SONATA ("Service Provider"), a California corporation
having offices at 00000 Xxxxx Xxxx, Xxx Xxxxxxx XX 00000, XXX.
WHEREAS, GUPTA and Service Provider have agreed to modify the terms and
conditions of the Agreement via this Addendum; and
NOW, THEREFORE, GUPTA and Service Provider agree, as follows:
1. Conflicts, Use of Terms: Where applicable, the defined terms in the
Agreement and in this Addendum shall convey the same meanings. The terms
and conditions contained in this Addendum are hereby incorporated into the
Agreement by reference made herein. Notwithstanding the foregoing, in the
event of conflict between the terms and conditions of the Agreement and
this Addendum, the terms and conditions of this Addendum shall prevail.
2. Agreement Renewal: The Agreement is hereby renewed for the Term of this
Addendum: March 28, 2003 ("Effective Date") through March 27, 2004.
3. Addition of Exhibit C ("Work Order Number Two"): "Work Order Number Two"
(attached hereto as Exhibit 1 to this Addendum Number One) is hereby
attached to and incorporated into the Agreement as Exhibit C.
4. No Other Modifications: Other than as provided in this Addendum above, the
terms and conditions of the Agreement remain unchanged and in full force
and effect.
IN WITNESS WHEREOF, the parties have caused this Addendum to be duly executed on
the dates indicated below, and effective as of the dates specified hereinabove:
SERVICE PROVIDER: GUPTA TECHNOLOGIES, LLC:
By: ________________________ By: ________________________
Name: ______________________ Name: ______________________
Title: _____________________ Title: _____________________
Date: ______________________ Date: ______________________
Service Provider__________ GUPTA_________
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EXHIBIT C
to Gupta Agreement No. 02-OSA-8412-SONA-00
WORK ORDER
NUMBER TWO
THIS WORK ORDER is attached to and made a part of the Service Agreement
dated MARCH 27, 2002 between GUPTA TECHNOLOGIES, LLC ("GUPTA") and OFFSHORE
DIGITAL SERVICES INC., DBA SONATA ("Service Provider"). Service Provider and
GUPTA hereby agree that Service Provider will perform the following services for
the benefit, and pursuant to the request, of GUPTA on the terms and conditions
set forth below and in the Service Agreement. In the event the terms set forth
below are inconsistent with, or otherwise conflict with, the terms and
conditions of the Service Agreement, the terms of this Work Order shall govern
for purposes of the work to be performed hereunder.
DUTIES: Specific assignments shall be authorized in the statement(s) of work
("SOW"), attached hereto and made a part hereof (including any subsequent SOWs
to this Work Order). Each SOW, including any and all future SOWs, when executed
by an authorized representative of each party, shall be made part of both this
Work Order and the Service Agreement by reference herein.
The services described in this Work Order shall be performed on behalf of
Service Provider by:
NAME OF SERVICE PROVIDER'S EMPLOYEE OR AGENT JOB TITLE
-------------------------------------------- ----------------
TD QA TEAM
Xxxxxx Xxxxxx Project Lead
Xxxxxxxxxxx Kempasagara QA Lead
Sailaja N.S. Developer/Tester
Xxxxx Xxxxxxxx Developer/Tester
SB QA TEAM
Xxxxxx Xxxxx Rajendran Developer/Tester
Xxxxxx Xxxxxxxxxxxx V. Developer/Tester
TD MAINTENANCE TEAM
Xxxxxxx Xxxxxxxxxxx Developer/Tester
Xxxx Xxxxxx Developer/Tester
Mahesh BS Developer/Tester
Service Provider understands and agrees that it must obtain GUPTA's prior
written consent as to each and every employee or agent (other than those listed
above) that it intends to have perform the services under in this Work Order.
A detailed description of the services to be performed by Service Provider is as
specified in the statement(s) of work ("SOW"), attached hereto and made a part
hereof (including any subsequent SOWs to this Work Order).
Service Provider__________ GUPTA_________
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COMPENSATION:
Service Provider shall be compensated on a Time and Materials basis for
the duties to be performed pursuant to this Work Order during the term of this
Work Order, from March 27, 2003 (the "Effective Date") to March 26, 2004 (the
"Term"). Service Provider shall complete the duties specified in each SOW on or
before the completion date specified in each SOW. Service Provider shall be
compensated at a rate equal to $2,250 (Two thousand two hundred fifty U.S.
Dollars) per month for each employee or agent of Service Provider, which monthly
compensation is based on each such employee or agent providing 170 (one hundred
and seventy) personhours of work per month. The number of personhours per month
has a contingency of +/- 5% (five percent); any effort outside this contingency
must be pre-approved in writing by GUPTA. As of the Effective Date of the Term,
Service Provider has nine (9) employees or agents on its team ("Team"); GUPTA
reserves the right, in its sole discretion, to reduce or increase the number of
employees or agents on the Team on an as-needed basis, with the requirement that
any such reduction or increase be pre-approved in writing by GUPTA. Should GUPTA
authorize a change in the number of employees or agents on the Team, the monthly
compensation due to Service Provider will be reduced or increased accordingly by
$2,250 (Two thousand two hundred fifty U.S. Dollars) per employee or agent. For
services provided during the Term pursuant to this Work Order Number Two, until
its termination date on March 26, 2004, compensation will only be paid for
actual services provided, and the maximum total fees paid to Service Provider
shall not exceed $260,000 (Two hundred sixty thousand U.S. Dollars) unless
pre-approved in writing by GUPTA. This maximum sum is calculated based on a Team
of nine (9) members; if GUPTA authorizes a change in the number of members on
the Team, the maximum fees will be reduced or increased accordingly.
All invoices should be sent by Contractor directly to: Gupta Technologies,
LLC, Accounts Payable Department, 000 Xxxxxx Xxxxx, Xxxxxxx Xxxxxx, XX 00000,
Attn: Accounts Payable Administrator. Provided the Accounts Payable Department
has received written acceptance of the Deliverable(s) from the designated GUPTA
Project Manager, all invoices are due and payable by GUPTA within 30 (thirty)
days after receipt of the applicable invoice by GUPTA's Accounts Payable
Department.
Contractor agrees that no compensation will be due from GUPTA beyond what
has been expressly outlined in this Exhibit C, unless approved in writing in
advance by GUPTA.
IN WITNESS WHEREOF, the parties have caused this Work Order to be executed
by their authorized representatives as of the date first above written.
OFFSHORE DIGITAL SERVICES INC., DBA SONATA GUPTA
Service Provider
By: _________________________________ By: ________________________
Printed Name: _______________________ Printed Name: ______________
Title: ______________________________ Title: _____________________
Date:__________________________ Date:_______________________
Taxpayer Identification Number: __________________________
Service Provider__________ GUPTA_________
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ADDENDUM TWO TO THE
SERVICE AGREEMENT
BETWEEN
GUPTA TECHNOLOGIES, LLC ("GUPTA")
AND
OFFSHORE DIGITAL SERVICES INC., DBA SONATA ("SERVICE PROVIDER")
This Addendum Two ("Addendum"), to the Service Agreement dated March 27, 2002
(the "Agreement"), as amended by Addendum One dated March 28, 2003 ("Addendum
One"), is between GUPTA TECHNOLOGIES, LLC ("GUPTA"), a Delaware limited
liability company with corporate offices at 000 Xxxxxx Xxxxx, Xxxxxxx Xxxxxx,
XX, 00000, XXX, and OFFSHORE DIGITAL SERVICES INC., DBA SONATA ("Service
Provider"), a California corporation having offices at 00000 Xxxxx Xxxx, Xxx
Xxxxxxx XX 00000, XXX.
WHEREAS, GUPTA and Service Provider have agreed to modify the terms and
conditions of the Agreement via this Addendum; and
NOW, THEREFORE, GUPTA and Service Provider agree, as follows:
1. Conflicts, Use of Terms: Where applicable, the defined terms in the
Agreement and in this Addendum shall convey the same meanings. The terms
and conditions contained in this Addendum are hereby incorporated into the
Agreement by reference made herein. Notwithstanding the foregoing, in the
event of conflict between the terms and conditions of the Agreement and
this Addendum, the terms and conditions of this Addendum shall prevail.
2. Term of the Addendum: July 21, 2003 ("Effective Date") through March 27,
2004.
3. Addition of Statements of Work to Work Order Number Two: Pursuant to
Section 2 of the Agreement and the "Duties" provision of Work Order Number
Two, the following Statements of Work ("SOW") (attached hereto as exhibits
to this Addendum) are hereby attached to and incorporated into the Work
Order Number Two to the Agreement:
(a) SOW for Migration of Client-Server Applications to the Web: Attached
hereto as Exhibit A is the SOW for Migration of Client-Server
Applications to the Web. Under this SOW, Service Provider will
provide GUPTA with consulting, development, documentation, and
testing regarding (i) sample client-server applications using Team
Developer and (ii) the migration of those sample applications to the
Web using Re-usable mode, as detailed in the SOW document attached
hereto.
(b) SOW for Development of Installer for Team Developer: Attached hereto
as Exhibit B is the SOW for Development of Installer for Team
Developer. Under this SOW, Service Provider will provide GUPTA with
consulting, development, documentation, and testing regarding the
Installer for Team Developer, as detailed in the SOW document
attached hereto.
4. Addition of New Service Provider Employees / Agents: The following
individuals are hereby added to and incorporated into the list of
Employees / Agents set forth in Work Order Number Two:
NAME OF SERVICE PROVIDER'S EMPLOYEE OR AGENT JOB TITLE
-------------------------------------------- ---------
Xxxxxxxx X. X. QA
Xxxxxx Xxxxx Developer
5. Modification of "Compensation" Section of Work Order Number Two: The
"Compensation" Section of Work Order Number Two is hereby deleted in its
entirety and replaced with the following:
Service Provider__________ GUPTA_________
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COMPENSATION:
Service Provider shall be compensated on a Time and Materials basis
for the duties to be performed pursuant to this Work Order during the term
of this Work Order, from March 27, 2003 (the "Effective Date") to March
26, 2004 (the "Term"). Service Provider shall complete the duties
specified in each SOW on or before the completion date specified in each
SOW. Service Provider shall be compensated at a rate equal to $2,250 (Two
thousand two hundred fifty U.S. Dollars) per month for each employee or
agent of Service Provider, which monthly compensation is based on each
such employee or agent providing 170 (one hundred and seventy) personhours
of work per month. The number of personhours per month has a contingency
of +/- 5% (five percent); any effort outside this contingency must be
pre-approved in writing by GUPTA. As of the Effective Date of the Term,
Service Provider has eleven (11) employees or agents on its team ("Team");
GUPTA reserves the right, in its sole discretion, to reduce or increase
the number of employees or agents on the Team on an as-needed basis, with
the requirement that any such reduction or increase be pre-approved in
writing by GUPTA. Should GUPTA authorize a change in the number of
employees or agents on the Team, the monthly compensation due to Service
Provider will be reduced or increased accordingly by $2,250 (Two thousand
two hundred fifty U.S. Dollars) per employee or agent. For services
provided during the Term pursuant to this Work Order Number Two, until its
termination date on March 26, 2004, compensation will only be paid for
actual services provided, and the maximum total fees paid to Service
Provider shall not exceed $300,000 (Three hundred thousand U.S. Dollars)
unless pre-approved in writing by GUPTA. This maximum sum is calculated
based on a Team of eleven (11) members; if GUPTA authorizes a change in
the number of members on the Team, the maximum fees will be reduced or
increased accordingly.
All invoices should be sent by Contractor directly to: Gupta
Technologies, LLC, Accounts Payable Department, 000 Xxxxxx Xxxxx, Xxxxxxx
Xxxxxx, XX 00000, Attn: Accounts Payable Administrator. Provided the
Accounts Payable Department has received written acceptance of the
Deliverable(s) from the designated GUPTA Project Manager, all invoices are
due and payable by GUPTA within 30 (thirty) days after receipt of the
applicable invoice by GUPTA's Accounts Payable Department.
Contractor agrees that no compensation will be due from GUPTA beyond
what has been expressly outlined in this Exhibit C, unless approved in
writing in advance by GUPTA.
6. No Other Modifications: Other than as provided in this Addendum above, the
terms and conditions of the Agreement remain unchanged and in full force
and effect.
IN WITNESS WHEREOF, the parties have caused this Addendum to be duly
executed on the dates indicated below, and effective as of the dates
specified hereinabove:
SERVICE PROVIDER: GUPTA TECHNOLOGIES, LLC:
By: ______________________________ By: __________________________
Name: ____________________________ Name: ________________________
Title: ___________________________ Title: _______________________
Date: ____________________________ Date: ________________________
Service Provider__________ GUPTA_________
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EXHIBIT A
STATEMENT OF WORK:
MIGRATION OF CLIENT-SERVER APPLICATIONS TO THE WEB
THIS STATEMENT OF WORK ("SOW") is attached to and made a part of the WORK ORDER
NUMBER TWO to the Service Agreement No. 02-OSA-8412-SONA-00 dated MARCH 27, 2002
between GUPTA TECHNOLOGIES, LLC ("GUPTA") and OFFSHORE DIGITAL SERVICES INC.,
DBA SONATA ("Service Provider").
SCOPE OF SERVICES:
GUPTA has requested Service Provider's assistance and support in developing
three (3) new sample client-server applications using the Product (the
"Applications") and documenting the process of migration of the Applications to
the Web using Re-usable mode. Service Provider has agreed to provide GUPTA with
the Services needed to migrate the Applications to the Web.
DELIVERABLES:
Migration of Three (3) Applications to the Web, which shall include the
following:
- Creating three (3) new sample (making use of existing samples and
tables available in Island database with necessary changes)
client-server Applications to cover most of the TD objects.
- Drafting a written document briefly describing the Applications.
- Migrating the Applications to the Web in reusable mode.
- Documenting the steps involved in migrating the Applications to the
Web in reusable mode.
- Listing the objects, functions and messages not supported in the Web
and developing workaround(s) to implement such functionality (e.g.,
menus).
- Listing any points to be noted for different platforms.
- Making sure that the migrated Applications work well with IIS and
Apache Web servers and is compatible with IE 5.x and IE6.x
- Providing GUPTA with weekly status reports regarding the
above-listed Deliverables.
The estimated timeline for completion of the Deliverables is approximately four
(4) weeks.
PROJECT TIMELINES:
Scheduled Start Date: Jul 21, 2003
Anticipated Completion Date: Aug 29, 2003
RESPONSIBILITIES OF THE PARTIES:
PROJECT/PROCESS MANAGEMENT: Service Provider and GUPTA will each have a project
manager(s) assigned to this project who will jointly manage the project
processes. The following list includes some of the processes the parties agree
to follow: Project Management, Quality Assurance, Project Review, Escalation,
and Change Control.
SERVICE PROVIDER - Develop three (3) Applications (as defined
RESPONSIBILITIES: above) and migrate them to the Web.
- Document the migration of the Applications to
the Web for re-usable mode.
- Project process management including review,
reporting and escalation.
Service Provider__________ GUPTA_________
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- Development environment: The following
development environment must be used:
- Hardware: Pentium III, 256 MB RAM and
20 GB hard disk.
- Software:
- Win 2K with Latest service pack.
- Linux RedHat 9.0
- IIS
- Apache Web server
- IE 5.x/6.x
- MS-Word 2000
GUPTA RESPONSIBILITIES: - Provide project sponsorship/support.
- Provide timely review, feedback and approvals
during the project cycle.
COMPENSATION:
PAYMENT TERMS: FIXED PRICE
Estimated Time for Completion Four (4) Weeks
Payment Terms Net 30 Invoiced by Service Provider upon Acceptance of the
Deliverables by GUPTA, as specified below.
FIXED PRICE US $2,250 (INCLUSIVE OF ALL EXPENSES)
ACCEPTANCE:
GUPTA has thirty (30) business days from the date of complete delivery of the
Deliverables to review said Deliverables for any defects. If GUPTA reports a
defect to Service Provider, GUPTA shall have fourteen (14) business days to
review the defect resolution provided by Service Provider. Service Provider
agrees that all Applications shall be provided to GUPTA free from any
Fatal/Major errors. Service Provider further agrees to review and incorporate
all feedback from GUPTA regarding the documentation and Applications.
CHANGES TO STATEMENT OF WORK:
After signing this SOW, any changes made will follow the Change Control process
agreed upon by both Service Provider and GUPTA. Each such change will be clearly
documented in an Amendment to this SOW.
IN WITNESS WHEREOF, the parties have caused this SOW to be executed by their
authorized representatives as of the date first above written.
OFFSHORE DIGITAL SERVICES INC., DBA SONATA GUPTA TECHNOLOGIES, LLC
Service Provider
By: _____________________________ By:_________________________
Printed Name: ___________________ Printed Name: ______________
Title: __________________________ Title: _____________________
Date: ___________________________ Date: ______________________
Taxpayer Identification Number: ________________________________
Service Provider__________ GUPTA_________
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EXHIBIT B
STATEMENT OF WORK:
DEVELOPMENT OF INSTALLER FOR TEAM DEVELOPER
THIS STATEMENT OF WORK ("SOW") is attached to and made a part of the WORK ORDER
NUMBER TWO to the Service Agreement No. 02-OSA-8412-SONA-00 dated MARCH 27, 2002
between GUPTA TECHNOLOGIES, LLC ("GUPTA") and OFFSHORE DIGITAL SERVICES INC.,
DBA SONATA ("Service Provider").
EXECUTIVE SUMMARY
Service Provider is pleased to submit this document to GUPTA for developing the
Installer for Team Developer. This document detail's Service Provider's
Understanding of the requirement, Scope and Process model. The team will
understand WISE code, document the Design and develop the installers. The
installer for the following will be developed:
I. Deploying Team Developer Run-time
II. Team Developer product
III. Evaluation copy of Team developer
IV. Report Builder
V. WAM
UNDERSTANDING OF GUPTA'S REQUIREMENTS
- GUPTA has been using WISE installer for preparing the Team Developer
Installer. They would like to re-engineer to InstallShield (version 8)
based Installer from now on for the new TD version 3.1.
- Development will be done based on the "Yosemite (3.1) Installer PRD v0.2"
shared by GUPTA and the understanding from the WISE code. Re-engineered
installer should be functionally same as the existing WISE installer. The
installer work should also address some of the existing defects in the
setup/installation areas of TD 3.0/3.1 and TD 2.1.
- This would also include the support for the Product
Registration/Activation to be implemented starting with TD 3.1. The
specification for this is expected from GUPTA.
- Installer is expected to work in various Windows platforms as listed
below: Windows NT, Windows 2000, Windows XP, Windows 98, Windows ME,
Windows Server 2003
- The installers that are required to be developed are:
I. Installer for Team Developer
II. Installer to setup Deployment environment
III. Installer to Install Evaluation copy of Team Developer
IV. Installer for Report Builder
V. Installer for WAM
- English based installer package, same as current support
DEVELOPMENT APPROACH
I. SCOPE OF WORK
Developing the Installers for Team Developer will involve:
- Understanding the WISE code
- Prepare the Design document from the WISE code
- Update Installer test cases
- Develop the Installer to setup the Deployment environment
- Develop the Installer to setup Team Developer
- Develop the Installer to setup Evaluation copy of Team
Developer
Service Provider__________ GUPTA_________
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- Develop the Installer to setup Report Builder
- Develop the Installer for WAM
- Provide defect fixes to existing installer defects
II. PROCESS MODEL
The following process model will be used for this project; overview of the model
is given below:
PROCESS RESPONSIBILITY LOCATION DELIVERABLE
--------------------------------------------------- ---------------- --------- ------------------------------------
Baseline the inputs received from GUPTA Service Provider Offshore Baseline document
Environment Set-up at Service Provider Service Provider Offshore -
Understanding of WISE scripts Service Provider Offshore Design document
Updating of Installer Test cases Service Provider Offshore Updated Installer Test cases
Review of Installer Test cases GUPTA Onsite Approved Installer Test cases
Develop the Installer to setup Deployment Service Provider Offshore Installer for Deployment environment
environment
Review of Installer to setup Deployment environment GUPTA Onsite Feedback/Approval
Develop the Installer for Team Developer Service Provider Offshore Installer for Team Developer
Review of Installer for Team Developer GUPTA Onsite Feedback/Approval
Develop the Installer for Evaluation copy of Team Service Provider Offshore Installer for Evaluation copy of
Developer Team Developer
Review of Installer for Evaluation copy of Team GUPTA Onsite Feedback/Approval
Developer
Develop the Installer for Report Builder & WAM Service Provider Offshore Installer for Report Builder and WAM
Review of Installer for Report Builder & WAM GUPTA Onsite Feedback/Approval
Acceptance GUPTA Onsite Signoff
III. SOFTWARE ENVIRONMENT
Operating System Windows 2000, Windows NT, Windows XP, Windows 98,
Windows ME, Windows Server 2003
Development Tools WISE 9.0, InstallShield Developer Version 8.0
Service Provider__________ GUPTA_________
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IV. INPUTS FROM GUPTA
INPUT DATE EXPECTED
----------------------------------------- ----------------------
WISE Scripts Already made available
Yosemite (3.1) Installer PRD v0.2 Already made available
Specifications to support for the Product Start of the project
Registration/Activation
ESTIMATION
I. EFFORT ESTIMATE
Estimation is based on Work break down structure. The following table
gives the summary of the estimate for the project.
EFFORT
(PERSON
DESCRIPTION DAYS) REMARKS
---------------------------------------------- ------- ---------------------------------------------------
Develop Gupta Runtime Installer 4 Study Gupta WISE Script - 0.5 pd
UI design (8 screens) - 1 pd
Setup and Component design - 0.5 pd
Install Scripting - 1 pd
Registry entry - 0.5 pd
Testing - 0.5 pd
Develop TD Installer 14 Study Gupta WISE Script (53 Scripts-23K LOC) - 5 pd
UI design (16 screens) - 2 pd
Setup and Component design - 1 pd
Install Scripting - 3 pd
Registry entry - 1 pd
Testing - 2 pd
Develop Installer for Evaluation version of TD 2 Install Scripting and Testing - 2 pd
Develop Installer for Report Builder 2 Script Changes - 1 pd Testing - 1 pd
Develop Installer for WAM 2 Script Changes - 1 pd Testing - 1 pd
TOTAL EFFORT 24
OVERALL ESTIMATE: Total Effort Required for Installer Development for Team
Developer is 1.2 person-months.
II. SCHEDULES
SCHEDULED START DATE: August 5, 2003
ANTICIPATED COMPLETION DATE: September 3, 2003
The overall indicative schedule for this project is given below. All dates
are in mmm/dd format. Duration is in weekdays. Milestones will be based on
the start date, currently assumed as Jul-14.
Service Provider__________ GUPTA_________
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START DATE END DATE
ANALYSIS PHASE DURATION (mmm-dd) (mmm-dd)
------------------------------------------------------------------ --------- ---------- ---------
Project Kickoff 0d Aug-5
Development of Installer to setup Deployment Environment 5d Aug-5 Aug-11
Delivery of Installer to setup Deployment Environment Aug-11
Review of Installer to setup Deployment by GUPTA Environment 1d Aug-11
Development of Installer to setup Team Developer 11d Aug-8 Aug-25
Delivery of Installer to setup Team Developer Aug-25
Review of Installer to setup Team Developer by Gupta 2d Aug-25 Aug-26
Rework on Installer to setup Team Developer 2d Aug-25 Aug-26
Development of Installer for Evaluation copy of Team Developer 2d Aug 27 Aug 28
Delivery of Installer for Evaluation copy of Team Developer Aug 29
Review of Installer for Evaluation copy of Team Developer by GUPTA 1d Aug 29
Develop and Deliver Installer for Report Builder 1d Aug 29
Develop and Deliver Installer for WAM 1d Sep 1
Review of Installers for WAM and Report Builder by GUPTA 1d Sep 2
Sign Off SEP 3
DELIVERABLES
Service Provider will provide the following Deliverables to GUPTA:
1. Design document
2. Updated Installer Test cases
3. Installer to setup
I. Deployment Environment
II. Team Developer
III. Evaluation copy of Team Developer
IV. Report Builder
V. WAM
ASSUMPTIONS
- Functionality of the Installer developed using InstallShield will be same
as that of the existing Installer using WISE except for registration
feature.
- Installation of all files during installation would be installed on the
same computer where installer is running and does not involve installation
of files on remote machines.
- Effort is based on the assumption of simple registration process as for as
installer is concerned. If the requirement is complex and requires
additional effort then the same would be discussed with GUPTA for revised
effort and schedule.
Service Provider__________ GUPTA_________
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RISKS AND MITIGATION
SL# RISK IMPACT MITIGATION PLAN
--- -------------------------------------------------- ------ ---------------------------------------------------
1. Any change in requirement may have an impact on High Issues will be discussed with GUPTA and will follow
effort and the schedule as the project is of short the change management procedure if necessary
duration
2. Any delays in receiving the inputs from GUPTA may High Issues will be escalated and resolved mutually
affect the schedule as the project is of short
duration
COMPENSATION:
PAYMENT TERMS: FIXED PRICE
Estimated Time for Completion 1.2 Person-Months
(equivalent to 204 personhours of work
@ 170 personhours of work per month)
Payment Terms Net 30 Invoiced by Service Provider upon Acceptance of the
Deliverables by GUPTA, as specified below.
FIXED PRICE US $2,700 (INCLUSIVE OF ALL EXPENSES)
ACCEPTANCE:
GUPTA has thirty (30) business days from the date of complete delivery of the
Deliverables to review said Deliverables for any defects. If GUPTA reports a
defect to Service Provider, GUPTA shall have fourteen (14) business days to
review the defect resolution provided by Service Provider. Service Provider
agrees that all Applications shall be provided to GUPTA free from any
Fatal/Major errors. Service Provider further agrees to review and incorporate
all feedback from GUPTA regarding the documentation and Applications.
CHANGES TO STATEMENT OF WORK:
After signing this SOW, any changes made will follow the Change Control process
agreed upon by both Service Provider and GUPTA. Each such change will be clearly
documented in an Amendment to this SOW.
IN WITNESS WHEREOF, the parties have caused this Statement of Work to be
executed by their authorized representatives as of the date first above written.
OFFSHORE DIGITAL SERVICES INC., DBA SONATA GUPTA TECHNOLOGIES, LLC
Service Provider
By: ______________________________ By: __________________________
Printed Name: ____________________ Printed Name: ________________
Title: ___________________________ Title: _______________________
Date: ____________________________ Date: ________________________
Taxpayer Identification Number: _____________________________
Service Provider__________ GUPTA_________
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ADDENDUM THREE TO THE
SERVICE AGREEMENT
BETWEEN
GUPTA TECHNOLOGIES, LLC ("GUPTA")
AND
OFFSHORE DIGITAL SERVICES INC., DBA SONATA ("SERVICE PROVIDER")
This Addendum Three ("Addendum"), to the Service Agreement dated March 27, 2002,
as amended by Addendum One dated March 28, 2003 ("Addendum One") and Addendum
Two dated July 21, 2003 ("Addendum Two"), collectively referred to as the
"Agreement", is between GUPTA TECHNOLOGIES, LLC, a Delaware limited liability
company with corporate offices at 000 Xxxxxx Xxxxx, Xxxxxxx Xxxxxx, XX, 00000,
XXX ("GUPTA"), and OFFSHORE DIGITAL SERVICES INC., DBA SONATA, a California
corporation having offices at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000, XXX
("Service Provider").
WHEREAS, GUPTA and Service Provider have agreed to modify the terms and
conditions of the Agreement via this Addendum; and
NOW, THEREFORE, GUPTA and Service Provider agree, as follows:
1. Conflicts, Use of Terms: Where applicable, the defined terms in the
Agreement and in this Addendum shall convey the same meanings. The terms
and conditions contained in this Addendum are hereby incorporated into the
Agreement by reference made herein. Notwithstanding the foregoing, in the
event of conflict between the terms and conditions of the Agreement and
this Addendum, the terms and conditions of this Addendum shall prevail.
2. Renewal of Agreement for the Term of this Addendum: Service Provider and
GUPTA hereby acknowledge and agree that the Agreement is hereby renewed
for the period from March 28, 2004 ("Effective Date") through March 30,
2006 (the "Term"). Any Work Orders issued under the Agreement still
pending as of the Effective Date shall remain in effect under all services
are completed, unless otherwise terminated as provided in the Agreement.
3. Compensation for Work Orders: Effective as of June 1, 2004, the
"Compensation" section of all Work Orders during the Term of this
Addendum, including but not limited to those still pending as of the
Effective Date, is hereby deleted in its entirety and replaced with the
following:
COMPENSATION:
Effective as of June 1, 2004, Service Provider shall be
compensated on a Time and Materials basis for the duties to be
performed pursuant to (i) any Work Orders in effect on June 1, 2004
and (ii) any future Work Orders entered into between GUPTA and
Service Provider during the Term until its expiration on March 30,
2006. Service Provider shall complete the duties specified in each
Work Order or SOW on or before the completion date specified
therein. Service Provider shall be compensated at a rate equal to
$2,475 (Two thousand four hundred seventy-five U.S. Dollars) per
month for each employee or agent of Service Provider specifically
authorized under the Agreement, which monthly compensation is based
on each such employee or agent providing 170 (one hundred and
seventy) personhours of work per month. The number of personhours
per month has a contingency of +/- 5% (five percent); any effort
outside this contingency must be pre-approved in writing by GUPTA.
Service Provider and GUPTA acknowledge and agree that, as of June 1,
2004, Service Provider has 18 (eighteen) employees or agents on its
team ("Team"); GUPTA reserves the right, in its sole discretion, to
reduce or increase the number of employees or agents on the Team on
an as-needed basis, with the requirement that any such reduction or
increase be pre-approved in writing by GUPTA. Should GUPTA authorize
a change in the number of employees or agents on the Team, the
monthly compensation due to Service Provider will be reduced or
increased accordingly by $2,475 (Two thousand four hundred
seventy-five U.S. Dollars)
Service Provider__________ GUPTA_________
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per employee or agent. For services provided during the Term
pursuant to any Work Order or SOW, compensation will only be paid
for actual services provided, and the maximum total fees paid to
Service Provider shall not exceed the amount specifically set forth
in that Work Order or SOW unless pre-approved in writing by GUPTA.
This maximum sum shall be calculated based on a Team of eighteen
(18) members; if GUPTA authorizes a change in the number of members
on the Team, the maximum fees will be reduced or increased
accordingly.
All invoices should be sent by Service Provider directly to:
Gupta Technologies, LLC, Accounts Payable Department, 000 Xxxxxx
Xxxxx, Xxxxxxx Xxxxxx, XX 00000, Attn: Accounts Payable
Administrator. Provided the Accounts Payable Department has received
written acceptance of the Deliverable(s) from the designated GUPTA
Project Manager, all invoices are due and payable by GUPTA within 30
(thirty) days after receipt of the applicable invoice by GUPTA's
Accounts Payable Department.
Service Provider agrees that no compensation will be due from
GUPTA beyond what has been expressly outlined in this Addendum,
unless approved in writing in advance by GUPTA.
4. No Other Modifications: Other than as provided in this Addendum above, the
terms and conditions of the Agreement remain unchanged and in full force
and effect.
IN WITNESS WHEREOF, the parties have caused this Addendum to be duly
executed on the dates indicated below, and effective as of the dates
specified hereinabove:
SERVICE PROVIDER: GUPTA TECHNOLOGIES, LLC:
By: _______________________________ By: ____________________________
Name: _____________________________ Name: Xxxx Xxxxxx
Title: ____________________________ Title: President and CEO
Date: _____________________________ Date: __________________________
Service Provider__________ GUPTA_________
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