Exhibit 10.15
Contract Agreement No. SDW001 between the Company
and Science Applications International Corp.
CONTRACT AGREEMENT
No. SDW001
Between
SIDEWARE SYSTEMS, INC.
Suite 102, 000 Xxxx 0xx Xxxxxx
Xxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
and
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
and
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION
c/o Technology Applications Group
0000 Xxxxxxxxx Xxxxx, X/X: 0-0-0
XxXxxx, XX 00000
This Agreement consists of:
- Terms and Conditions
- Appendix A - Statement of Work
- Appendix B - Price Schedule
ACCEPTANCE:
SIDEWARE SYSTEMS, INC. SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION
"signed"
------------------------
Signature Signature
Xxxxx Xxxxxxxxxx Xxxxxx X. Xxxxxxx, Xx.
--------------------------
Name Name
Chairman Contracts Manager
----------------
Title Title
Date Date
INTRODUCTION
This Contract Agreement, effective 25 October 1999, is made between SIDEWARE
SYSTEMS, INC. (hereinafter known as "Sideware") and Science Applications
International Corporation (hereinafter known as "SAIC") with principal
offices located at 0000 Xxxxxxxxx Xxxxx, XxXxxx, Xxxxxxxx. The work will be
performed on a Time and Material (T&M) Basis in accordance with Schedules A,
the (Specific Terms and Conditions), Appendix A (Statement of Work), and
Appendix B (Price Information).
SCHEDULE A
SPECIFIC TERMS AND CONDITIONS
1. Type of Contract
This is a Time-and-Material type contract whereby SAIC will invoice Sideware
at specified rates (Appendix B) for the individuals performing work pursuant
to this contract. Expenses such as clerical/administrative labor, computer
services, communications, postage and express mail, and normal reproduction
are included in the labor rates. All other direct costs (ODC's), materials,
and travel not stated above as included in the labor rate, will be invoiced
on an actual incurred basis with a twelve percent (12%) handling charge.
2. Period of Performance
The terms and billing rates identified herein are based upon a performance
period estimated at this time to be approximately twelve (12) months with an
anticipated start date of . In order to begin the work
identified in Appendix A, SAIC will require the execution of this contract
document.
3. Services
Services will be performed on a "time and materials" basis as described in
Paragraph 1. SAIC may, at its option, continue efforts until written
notification terminating this Agreement is provided by either party to the
other pursuant to Section 11 "Termination". SAIC shall be reimbursed for all
Services performed and costs incurred prior to the effective date of
termination in accordance with Section 11.
4. Invoice and Payment Terms
The amount to be paid to SAIC for labor shall be computed by multiplying the
applicable hourly billing rate set forth in Exhibit B by the number of direct
hours performed. Fractional parts of an hour shall be payable on a prorated
basis. The labor hour billing rates set forth in Exhibit B shall be
effective through December 31, 2000, at which time such rates shall be
subject to renegotiations.
Upon prior approval from the Sideware, SAIC may purchase materials for
exclusive use in performing the Services. Sideware shall reimburse SAIC for
all such materials purchased. These expenses shall be subject to the
administrative charges provided in Appendix B.
SAIC shall provide an invoice to Sideware every four weeks or as set forth in
Exhibit B for Services performed and expenses incurred by SAIC pursuant to
this Agreement.
The invoices shall be sent to:
Sideware Systems, Inc.
Xxxxx 000, 000 Xxxx 0xx Xxxxxx
Xxxxx Xxxxxxxxx, XX
Xxxxxx X0X 0X0
Attn: Xxxx Xxxxx
Invoiced amounts are immediately due and payable by either electronic funds
transfer (EFT) or by mail to the following location(s):
If Sideware has EFT capabilities, use the following address:
Bank of America, San Francisco
Account Number: 00000-00000
Bank Routing Number: 000000000
Telegraphic Abbreviation: BNKAMER
Reference: Project and Invoice Numbers
All costs associated with the wire transfer of funds shall be borne by
Sideware
If Sideware does not have EFT capabilities, use the following address:
Science Applications International Corporation
Drawer CS 198347
Xxxxxxx, XX 00000-0000
Reference: Project Number(s) and Invoice Numbers(s)
If Sideware fails to pay the total of such invoiced fees and costs within
thirty (30) days of such invoice, interest compounded at the rate of one
percent (1%) per month shall be charged on all amounts unpaid and
outstanding. If Sideware fails to make any payment to SAIC as and when
required hereunder, SAIC shall have the right, in addition to its other
rights and remedies, to cease further performance of the Services hereunder.
5. Administrative Points of Contact
The name and address of SAIC authorized representatives for purposes of
negotiation and contract administration are as follows:
Negotiation for SAIC:
Primary: Xxxxxx X. Xxxxxxx, Xx.
Contracts Manager
0000 Xxxxxxxxx Xxxxx, X/X 0-0-0
XxXxxx, XX 00000 XXX
(000) 000-0000 - Telephone
(000) 000-0000 - Facsimile
Alternate: Xxxxxxxxx X. Xxxxx
Group Contracts Manager
0000 Xxxxxxxxx Xxxxx, X/X 0-0-0
XxXxxx, XX 00000 XXX
(000) 000-0000 - Telephone
(000) 000-0000 - Facsimile
Negotiation for Sideware Systems, Inc.
Sideware Systems, Inc.
Xxxxx 000, 000 Xxxx 0xx Xxxxxx
Xxxxx Xxxxxxxxx, XX
Xxxxxx X0X 0X0
Attn: Xxxx Xxxxx
(000) 000-0000 - Telephone
(000) 000-0000 - Facsimile
6. Resources to be Provided by Sideware
Sideware shall provide, maintain and make available to SAIC, at Sideware's
expense and in a timely manner, the following resources, and such other
additional resources, as SAIC may from time to time reasonably request in
connection with SAIC's performance of the Services:
Qualified Sideware personnel or representatives who will be designated by
Sideware to consult with SAIC on a regular basis in connection with the
Services, as well as documentation or other information necessary to perform
the Services.
Access to Sideware's premises and appropriate workspace for SAIC personnel at
Sideware's premises as necessary for performance of those portions of the
Services to be performed at Sideware's premises.
7. Confidentiality
Information which is exchanged under or in connection with this contract may
include proprietary information of the disclosing party. "Proprietary
Information," for purposes of this contract, shall be any information,
regardless of the media on which it appears or resides and whether in written
or electronic form, that is clearly marked with the legend "Proprietary
Information of Sideware Systems, Inc. " The legend can appear on the
document, diskette, or screen display as the case may be. The receiving
party shall not disclose any information so marked to others nor use it for
any purpose other than the performance of this contract. The parties agree
that the transfer of Proprietary Information from the disclosing party does
not provide any ownership or license rights in such information to the
receiving party. Immediately upon request, the receiving party must return
to the disclosing party and Proprietary Information transferred. It is
expressly understood by the parties that all information, data, data
libraries, in-house code, and any other information resident on the computers
(and their associated peripherals, network, and media) is the Proprietary
Information of Sideware.
In the event proprietary information is orally disclosed, the substance of
the oral disclosure should be reduced to writing or electronic form and
clearly marked with the above legend within ten (10) days following
disclosure. The receiving party shall handle and protect the disclosing
party's Proprietary Information using the same care that is used for handling
and protection of its own Proprietary Information.
Proprietary information shall not include, and this paragraph shall not apply
to, information which:
a. was in the receiving party's possession or was known to the receiving
party prior to the execution of this contract;
b. is or becomes public knowledge without fault of the receiving party;
c. is acquired by the receiving party from a third party with good legal
title thereto and without binder or secrecy;
d. is independently developed by the receiving party;
e. is used or disclosed with the prior written approval of the disclosing
party;
f. is disclosed pursuant to the requirement or request of the United States
Government or other governmental agencies.
The obligations stated under this article shall survive the expiration of
termination of this contract and extension thereof for a period of three (3)
years.
Each party agrees not to make more copies than necessary for internal use of
the proprietary information. All tangible forms and copies of the
proprietary information, such as written documentation, delivered by either
party to the other pursuant to this agreement shall be and remain the
property of the issuing party, and all such tangible information shall be
properly returned to said party or destroyed upon its written request. Any
work papers, memoranda, or other writings prepared by the receiving party
incorporating any or all of the information shall also be subject to the
provisions of this contract.
8. Work for Hire
This contract is a work-for-hire contract. All work product, draft and final
deliverables (as identified within the Statement of Work), all
work-in-process (including logs, draft reports, and records), and all
products of the contract shall become at their creation, and at all times
thereafter shall remain, the property of Sideware, and shall be designated
as the proprietary information of Sideware pursuant to Section 7 herein.
Sideware recognizes that the performance of SAIC hereunder will require the
skills of SAIC. Therefore, regardless of ownership of any work, SAIC shall
retain the non-exclusive, perpetual, royalty-free, paid-up license with the
right to sublicense to use the algorithms, know-how, ideas, techniques, and
concepts used or developed by it in the course of performance of this
contract.
9. Taxes
Sideware shall be solely responsible for the collection and payment of any
and all sales, use, value added, excise, import, privilege or other similar
taxes or payments in lieu thereof, including interest and penalties thereon,
imposed by any authority, government or governmental agency arising out of or
in connection with the performance of the Services by SAIC (other than those
levied on SAIC's income), and Sideware shall make such withholdings and
payments, and timely file any return or information required by treaty, law,
rule or regulation.
10. Personnel
Personnel will at all times be considered employees or agents of the party
providing such personnel and will not for any purpose be considered employees
or agents of the other party. Each party shall assume full responsibility
for the actions or inactions of the personnel it provides, and shall be
solely responsible for the supervision, direction, control, salaries,
workers' compensation coverage, disability and other insurance, benefits, and
all other obligations required by law relating to its personnel.
11. Termination
Either party may terminate this Agreement for any reason at any time upon
providing written notification to the other party. Termination under this
paragraph will not affect payment obligations incurred under this Agreement
for Services performed prior to the effective date of termination, and for
any costs incurred, including without limitation commitments to purchase
products or services from third parties which were entered into by SAIC in
the course of performance hereunder prior to the effective date of
termination. Such reimbursable costs may include, but are not limited to,
cancellation fees, minimum consulting fees, and non-refundable charges or
fees for third party products or services.
12. Effect of Termination
Upon termination of this Agreement, each party shall promptly return to the
other any and all personal property of the other held by such party;
provided, that if, and so long as, any fees required to be paid by Sideware
to SAIC have not been paid, then SAIC shall not be required to return to
Sideware any personal property of Sideware held by SAIC, and SAIC shall have
a lien on such property, to the extent of the amounts unpaid by Sideware.
13. Warranties
SAIC warrants that the Services provided under this Agreement shall be
performed with that degree of skill and judgment normally exercised by
recognized professional firms performing services of the same or
substantially similar nature. The exclusive remedy for any breach of the
foregoing warranty shall be that SAIC, at its own expense, and in response to
written notice of a warranty claim by Sideware within 60 days after
performance of the Services at issue, shall, at its own option, either (1)
re-perform the Services to conform to this standard; or (2) refund to
Sideware amounts paid for non-conforming Services.
SAIC SPECIFICALLY DISCLAIMS ANY OTHER EXPRESS OR IMPLIED STANDARDS,
GUARRANTEES, OR WARRANTIES, IUNCLUDING ANY WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES THAT MAY ALLEGED TO ARISE
AS A RESULT OF CUSTOM OR USAGE. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS AGREEMENT SAIC DISCLAIMS ANY WARRANTY, RESPONSIBILITY, OR
LIABILITY FOR THE "YEAR 2000" COMPLIANCE OR FUNCTIONALITY OF THE SIDEWARE'S
HARDWARE, SOFTWARE, FIRMWARE, OR COMPUTER SYSTEMS.
Sideware represents and warrants to SAIC that it has the right to use,
disclose and disseminate the information, specifications and data that it has
provided or will provide to SAIC in order for SAIC to perform the Services
and to create the deliverables, if any, identified in Exhibit A. Sideware
further represents and warrants that possession and use of that information,
specifications and data by SAIC under the terms and conditions of this
Agreement will not constitute an infringement upon any patent, copyright,
trade secret, or other intellectual property right of any third party.
14. Limitation of Liability
Sideware agrees that SAIC's total liability to Sideware and all liabilities
arising out of or related to the work contemplated by this contract, from any
cause or causes, and regardless of the legal theory, including breach of
contract, warranty, negligence, strict liability, or statutory liability,
shall not, in the aggregate, exceed the amounts paid to SAIC hereunder.
In no event shall either SAIC or Sideware be liable to the other for any
special, indirect, incidental, consequential, or economic (including, but not
limited to lost profits and lost business opportunity) damages, regardless of
the legal theory under which such damages are sought, and even if the parties
have been advised of the possibility of such damages.
Any claim by Sideware against SAIC related to this contract must be made in
writing and presented to SAIC within six (6) months after the date on which
SAIC completes performance of all services specified in this contract,
including such services performed pursuant to Sections 15 and 16.
15. Year 2000 Warranty I
SAIC warrants that the services performed under this Contract shall be
performed with that degree of skill and judgement normally exercised by
recognized professional firms performing services of a similar nature.
Sideware's exclusive remedy for breach of this warranty is to have SAIC
re-perform any services whose non-compliance with this warranty is made known
by Sideware to SAIC in writing within sixty (60) days after Sideware's
acceptance of the non-compliant services.
Except as provided in (a) above, SAIC disclaims any warranty, responsibility,
or liability for the Year 2000 compliance or functionality of Sideware's
hardware, software, firmware, or computer systems, and disclaims any warranty
that any services provided will achieve Year 2000 compliance or functionality
with Sideware's systems. The provisions of this Year 0000 Xxxxxxxx shall
take precedence over any inconsistent provisions elsewhere in this Contract
including its exhibits and attachments.
16. Year 2000 Warranty II
SAIC warrants that each hardware, software, and firmware product
delivered under this contract and listed below shall be able to accurately
process dates and date-related data (including, but not limited to,
calculating, comparing, and sequencing) from, into, and between the twentieth
and twenty-first centuries, and the years 1999 and 2000 and leap year
calculations, to the extent that other information technology, used in
combination with the information technology being acquired, properly
exchanges date/time data with it. If the contract requires that specific
listed products must perform as a system in accordance with the foregoing
warranty, then that warranty shall apply to those listed products as a system.
Warranted Items:
NONE
seq level0 \x \x0 xxx xxxxx0 \x \x0 seq level2 \x \x0 xxx xxxxx0 \x \x0 seq
level4 \x \x0 xxx xxxxx0 \x \x0 seq xxxxx0 \x \x0 xxx xxxxx0 \x \x0 (x)
SAIC shall repair or replace, at its option, any Warranted Item whose
non-compliance is discovered and made known to SAIC in writing by Sideware
within sixty (60) days after acceptance. Nothing in this warranty shall be
construed to limit any rights or remedies Sideware may otherwise have under
this Contract with respect to defects other than Year 2000 performance.
(c) As to any item of hardware, software, or firmware (if any)
delivered by SAIC but not warranted above, SAIC shall, to the extent
permitted by the manufacturer or licensor, pass through or assign to Sideware
the manufacturer's or licensor's warranties, if any, given to SAIC, regarding
Year 2000 compliance. SAIC itself provides no warranty, express or implied,
regarding the Year 2000 performance of any third-party items unless
specifically listed as a Warranted Item.
17. Limitation of Dissemination of SAIC Commercial Work Product
SAIC and Sideware expressly exclude any and all third parties from the
benefits of this Agreement. In the event that Sideware furnishes any SAIC
work product to a person who is not a party to this Agreement, Sideware
agrees to defend, indemnify, and hold harmless SAIC from and against all
claims, damages, losses, costs and expenses (including reasonable attorney's
fees) of actions brought by third parties, and arising out of or relating to
such third party's use or distribution of, or reliance upon, SAIC's work
product.
18. Changed and Additional Work
Sideware may, at any time, during the term of the contract, order a change to
the work being performed under this contract that is within the general scope
of this contract. In the event SAIC determines that the change order will
affect the performance, delivery or price of the contract, SAIC will submit,
within ten (10) calendar days of receipt of the change order, a proposal
identifying the consequences of the change order, and the price thereof, on
the contract terms and conditions. Following the acceptance of SAIC's
proposal, the parties will modify the contract in writing prior to the SAIC
beginning work on the change order. The cost of the change order will be
included in the total estimated price identified in Appendix B.
In the event Sideware requests additional work under this contract, the above
procedures will be used prior to the commencement of performance on the
additional work. However, at its sole option, SAIC is not obligated to
submit a proposal for, or perform, any additional work. Any costs for
additional work are not included in the total estimated price in Appendix B
and the total estimated price will be increased by the amount of the
additional work.
This contract can only be modified by an instrument in writing signed by
authorized representatives of Sideware and SAIC.
19. Non-Waiver of Rights
The failure of either party to insist upon performance of any provision of
this Agreement, or to exercise any right, remedy or option provided herein,
shall neither be construed as a waiver of the right to assert any of the same
or to rely on any such terms or conditions at any time thereafter, nor in any
way affect the validity of this Agreement.
20. Severability
If any covenant, condition, term, or provision contained in this Agreement is
held or finally determined to be invalid, illegal, or unenforceable in any
respect, in whole or in part, such covenant, condition, term, or provision
shall be severed from this Agreement, and the remaining covenants,
conditions, terms and provisions contained herein shall continue in force and
effect, and shall in no way be affected, prejudiced or disturbed thereby.
21. Conflicting Provisions
This Agreement and all of the exhibits, schedules, and documents attached
hereto are intended to be read and construed in harmony with each other, but
in the event any provision in any attachment conflicts with any provision of
this Agreement, then this Agreement shall be deemed to control, and such
conflicting provision shall be deemed removed and replaced with the governing
provision herein.
22. Assignment
Neither party may sell, assign, transfer, or otherwise convey any of its
rights or delegate any of its duties under this Agreement without the prior
written consent of the other party, which consent may not be unreasonably
withheld. Notwithstanding the foregoing, SAIC may without violation of this
paragraph engage the services of independent contractors to assist in the
performance of its duties hereunder.
23. Governing Law
This Agreement shall be governed by and construed under the laws of the
Commonwealth of Virginia without regard to those laws relating to conflict of
laws.
24. Interpretation
The captions and headings used in this Agreement are solely for the
convenience of the parties, and the text of the Agreement shall govern in the
event of any conflict or ambiguity. Each party has read and agreed to the
specific language of this Agreement; therefore no conflict, ambiguity, or
doubtful interpretation shall be construed against the drafter.
25. Disputes
Sideware and SAIC agree to first enter into negotiations to resolve any
controversy, claim or dispute ("dispute") arising under or relating to this
Agreement. The parties agree to negotiate in good faith to reach a mutually
agreeable resolution of such dispute within a reasonable period of time. If
good faith negotiations are unsuccessful, Sideware and SAIC agree to resolve
the dispute by binding and final arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association then in
effect. The arbitration shall take place in the County of Fairfax, State of
Virginia. The arbitrator(s) shall be bound to follow the provisions of this
Agreement in resolving the dispute, and may not award punitive damages. The
decision of the arbitrator(s) shall be final and binding on the parties, and
any award of the arbitrator(s) may be entered or enforced in any court of
competent jurisdiction.
26. Force Majeure
Neither party shall be liable for any failure of or delay in performance of
its obligations under this Agreement to the extent such failure or delay is
due to circumstances beyond its reasonable control, including, without
limitation, acts of God, acts of a public enemy, fires, floods, wars, civil
disturbances, sabotage, accidents, insurrections, blockades, embargoes,
storms, explosions, labor disputes (whether or not the employees' demands are
reasonable and within the party's power to satisfy), acts of any governmental
body, failure or delay of third parties or governmental bodies from whom a
party is obtaining or must obtain approvals, authorizations, licenses,
franchises or permits, or inability to obtain labor, materials, equipment, or
transportation (collectively referred to herein as "Force Majeure"). Each
party shall use its reasonable efforts to minimize the duration and
consequences of any failure of or delay in performance resulting from a Force
Majeure event.
27. Multiple Copies or Counterparts of Agreement
The original and one or more copies of this Agreement may be executed by one
or more of the parties hereto. In such event, all of such executed copies
shall have the same force and effect as the executed original.
28. Notices
All notices or other written communication required or permitted to be given
under any provision of this Agreement shall be deemed to have been given by
the notifying party if mailed by certified mail, return receipt requested, to
the receiving party addressed to its or his mailing address set forth in the
first paragraph of this Agreement, or such other address as the parties may
designate in writing to the other parties. Additionally, notices sent by any
other means (i.e., facsimile, overnight delivery, courier, etc.) may be
acceptable subject to written confirmation of both the transmission and
receipt of the notice.
29. Relationship of Parties
SAIC is an independent contractor in all respects with regard to this
Agreement.
Nothing contained in this Agreement shall: (1) authorize or empower either
party to act as partner or agent of the other party in any manner; (2)
authorize, or empower or deem one party to assume or create any obligation or
responsibility whatsoever, express or implied, on behalf of or in the name of
any other party; or (3) authorize, empower or deem a party to bind any other
party in any manner or make any representation, warranty, covenant,
agreement, or commitment on behalf of any other party.
30. Third Party Beneficiaries
This Agreement does not create, and shall not be construed as creating, any
rights or interests enforceable by any person not a party to this Agreement.
31. Waiver or Modification
This Agreement may be modified, or part or parts hereof waived, only by an
instrument in writing specifically referencing this Agreement and signed by
an authorized representative of the party against whom enforcement of the
purported modification or waiver is sought.
32. Entire Agreement
This Agreement, including Exhibits A and B, which are hereby incorporated by
reference, constitutes the entire agreement and understanding between the
parties and supersedes and replaces any and all prior or contemporaneous
proposals, agreements, understandings, commitments or representations of any
kind, whether written or oral, relating to the subject matter hereof or the
Services to be performed hereunder.
APPENDIX A
STATEMENT OF WORK
SAIC and Sideware will work together to create a computer telephony
integration solution for Sideware's software product, Xx. Xxxx. This will
improve and enhance Xx. Xxxx to respond to the requirements of the evolving
marketplace. SAIC will provide telephony engineering expertise and project
management support.
Sideware requires that the software product, Xx. Xxxx, have the capability to
route calls to a telephone sitting next to a specific Sideware Service
Representative (CSR). Xx. Xxxx will have the capability to handle telephony
and computer requests simultaneously. The accounting information for the
routed call must be integrated into the current Xx. Xxxx accounting system.
SAIC will handle all Project Management and telephony requirements. Sideware
will provide all JAVA expertise. SAIC and Sideware will work jointly on this
project.
