AMENDMENT TO GENERAL SERVICES AGREEMENT
This Amendment is entered into on July 15 1999, by and between Newgen
Results Corporation, a Delaware corporation ("Customer") and Information +
Graphics Systems, Inc. ("Company").
RECITALS
A. On or about December 25, 1997, Newgen Results Corporation, a
California corporation ("Newgen-Cal") and Bolder Heuristics, Inc. ("BHI")
entered into a General Services Agreement ("Agreement") for certain services
relating to the development and implementation of software referred to as the
NewZen Customer Retention System ("Software").
B. Customer is the successor in interest to Newgen-Cal. Company
is the successor in interest to BHI.
C. Delays and disputes between the parties previously arose
regarding the Company's development and delivery of the Software to
Customer. As a result of various meetings and discussions between the
parties, Customer and Company have agreed to modify certain provisions of the
Agreement pursuant to this Amendment in order to complete and deliver the
Software to Customer.
NOW, THEREFORE, in consideration of the mutual provisions contained
herein, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. GENERAL SERVICES. The following sentences are hereby added to
Section 1.2 of the Agreement:
All Services occurring after March 1, 1999 shall be performed pursuant
to the new Statement of Work attached hereto as Exhibit A and fully
incorporated herein ("SOW"). This SOW supersedes all prior SOW's, including
the original Statement of Work attached to the Agreement.
2. MODIFICATIONS. Section 2.1 of the Agreement is replaced as
follows:
2.1 If Customer wishes to modify the Services specified in the
attached SOW, any Assignment or PO, or wishes to obtain additional Services
not covered by this Agreement, the Customer shall so advise the Company, in
writing, and the Company will respond in writing with its understanding of
the additional services or modifications requested and its acceptance or
rejection thereof. Company shall continue to perform the Services under the
SOW, Assignment or PO and not delay such activities pending determination of
whether the parties can mutually agree on such modifications.
3. RESOURCES. Section 3.6 of the Agreement is hereby replaced as
follows:
3.6 Neither party, on behalf of itself or on behalf of any other
person or entity, shall solicit nor offer employment to or retain in any
capacity the services of any of the other party's employees or any person
engaged by such party on a full-time basis and paid pursuant to IRS Form
1099, during the term of this Agreement and for a period of twelve (12)
months following termination or expiration of this Agreement, unless mutually
agreed to in advance by the Company and Customer in writing.
4. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY. Sections
5.1 and 5.2 are replaced, Section 5.3 is deleted and Sections 5.7 and 5.8 are
added, as follows:
5.1: Company agrees it shall use reasonable care to protect the
confidentiality of, data or information (including copies or modifications to
such) that relate to Customer's business and which are clearly designated in
writing as confidential by Customer, or which would be reasonably considered
confidential to Customer.
5.2. Upon Customer's payment of all amounts due and payable to
Company as of the date of this Amendment, Customer shall be deemed to own all
materials that Company has delivered to Customer prior to the execution of
this
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Amendment. All materials that Company delivers to Customer thereafter shall
become the property of Customer upon Customer's payment of all amounts due
with respect to the delivery of such materials. Upon request, Company will
cooperate with Customer at Customer's expense in securing any copyright
protection for such materials.
5.7 Company agrees that to the extent practicable Company will
provide Customer with a written list of "generic tools" as described in
Section 5.4 of this Agreement. To the extent incorporated into Company's
deliverables to Customer, Company grants to Customer a non-exclusive,
non-transferable, worldwide, license to use and copy such generic tools
solely for Company's internal use of the NewZen system. Upon Customer's full
payment to Company of all amounts due under this Agreement such license shall
be deemed perpetual. Notwithstanding anything to the contrary, Company will
have residual rights, without any obligation of accounting, to reuse, and
redistribute generic routines, objects, techniques, methods, processes,
know-how, and algorithms developed or discovered in the course of projects
under this Agreement, which do not contain confidential business data of
Customer.
5.8 For purposes of this Agreement, "intellectual property" shall
mean rights under copyright, patent, trade secret, trademark, moral rights
and similar laws relating to the software and other materials described in
this Section 5.
5. WARRANTY. Section 6.2(c) is replaced, and Sections 6.4, 6.5,
6.6, 6.7, and 6.8 are hereby added, as follows:
6.2(c) that all deliverables provided by BHI to Customer will conform
in all materials respects to the Functional Specification and Specification
Resolution Document that are incorporated by reference into the Amended
Statement of Work executed on the same date as this Amendment.
6.4 Each party warrants to the other: (i) that it has all right
and authority to execute and perform its obligations hereunder; (ii) that the
performance of its obligations hereunder will not conflict with or constitute
a breach or default of any oral or written contract or other understanding to
which it is a party or by which it is bound; and (iii) it is not aware of any
agreements or other facts which could prevent its proper performance
hereunder.
6.5 Each party warrants to the other that, to its knowledge: (i)
there is no claim, lien, suit, arbitration or other proceeding pending or
threatened which in any way relates to the Software, Materials, the Company's
development of the same and/or Customer's use thereof, and (ii) there does
not exist any reasonable basis for any such claim, suit, arbitration or other
proceeding.
6.6 The Company warrants to Customer that the Software, when
operated in accordance with the documentation supplied by Company, is Year
2000 Compliant (as defined below). Customer acknowledges that the capability
of the Software to manage and manipulate date-related information
appropriately depends in part on the quality of information imported or input
into the Software, including the presence of adequate indicators of century
in such information. Company disclaims any warranty relating to the quality of
any such imported or input information. "Year 2000 Compliant" means that the
Software shall (i) manage and manipulate data (including storage, retrieval
and calculation) involving dates, including single century formulas and
multi-century formulas and, subject to the quality of input information as
described above, shall not cause an abnormally ending scenario within the
Software caused by the advent of the Year 2000; and (ii) provide that all
date related functions and data fields include the capability to input the
indication of century.
6.7 All of Company's deliverables to Customer shall be subject to
an acceptance period of seven (7) days following delivery by Company
("Acceptance Period"). The Company's warranties under this Agreement shall
apply only to final production deliverables and shall remain in effect solely
during the Acceptance Period and for thirty (30) days thereafter ("Warranty
Period"). Such warranty will terminate upon modification of any source code
of the Software by Customer or any third party. Unless acceptance has already
occurred, Customer shall be deemed to have accepted the final production
Software upon its use in commercial production for a period of thirty (30)
days.
6.8 Customer acknowledges that, as with any complex custom
software development, Customer's
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acceptance testing (no matter how thoroughly nor expertly performed by
Customer) is not likely to detect every latent bug in the Software.
Accordingly, the Software will require ongoing maintenance following delivery
and acceptance, and Customer assumes the obligation to perform such
maintenance either itself, through use of a third party, or pursuant to an
SOW with Company containing specific commitments by Company to provide
maintenance.
6. INDEMNITY. Article 6.3 is hereby replaced as follows:
6.3 In the event of any claims, suits, actions or proceedings
brought against Customer and/or Company by any third party alleging that the
Software, any information, data, processes, methods, specifications, code, or
other matter supplied by Customer, or Customer's or Company's use thereof,
infringes any patent, copyright, trademark, statutory database right or other
intellectual property right of a third party, then either Company or Customer
(as the case may be) shall defend and indemnify the other from and against
such claims, suits, actions or proceedings to the extent based upon
allegations that material supplied by the indemnifying party gives rise to
the alleged infringement. In the event Company and Customer are both required
to indemnify the other under this Section 6.3 with the respect to the same or
substantially related claims, suits, actions or proceedings, then Company and
Customer shall enter into a joint defense agreement (whether either or both
are named in the suit or proceeding) and: (a) cooperate in the defense of
such claim, suit, action or proceeding, (b) provide each other with
information and assistance from its personnel with relevant knowledge or
documents to the extent reasonably necessary for the defense of such claim or
suit, and (c) shall use good faith efforts to agree upon a sharing of the
joint defense costs and attorneys' fees taking into account whether the
claims are based upon development work by Company or any information, data,
processes, methods, specifications, code, or other matter supplied by
Customer. In the event Company and Customer are unable to reach agreement as
to any matter relating to indemnification or joint defense under this Section
6.3, they shall refrain from raising any disputes between them in any
litigation or other proceeding involving a third party and shall submit their
disputes under this Section 6.3 to private settlement via binding arbitration
pursuant to the Commercial Rules of the American Arbitration Association.
Notwithstanding the foregoing, Company shall not indemnify Customer for any
claims based on (i) any Customer or third party intellectual property or
software incorporated in or combined with the Software where in the absence
of such incorporated item, the Software would not have been infringing, (ii)
Software that have been altered or modified by Customer or any third party
where in the absence of such alteration or modification the Software would
not be infringing; (iii) any use of an outmoded version of the Software (or
portions thereof) for which Company has made available an updated, revised or
repaired version which is not infringing; and (iv) relating to the
development, implementation, configuration, or use of the Software. Upon
notice of any claim of infringement or upon reasonable belief of the
likelihood of such a claim, Company shall have the right, at its option, (i)
to obtain the rights to continued use of the Software, (ii) substitute other
suitable, functionally-equivalent, non-infringing software, (iii) replace or
modify the Software or its design so that it is no longer infringing, or, in
the event that Company, using commercially reasonable efforts, is unable to
cure the infringement, refund to Customer the allocable portion of
development fees already paid for the Software, depreciated on a five-year
straight-line basis (or such other actual basis reported by Customer to the
IRS).
6. EFFECT. Except as amended or added hereby, all of the other
provisions of the Agreement including any attachments thereto shall remain
unchanged and continue to be in full force and effect. Each party represents
to each other that it has the authority from its respective governing body to
enter into this Amendment and to bind its respective company to all of the
provisions of this Amendment.
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IN WITNESS WHEREOF, the parties have executed this Amendment effective
as of the date first written above.
NEWGEN RESULTS CORPORATION,
a Delaware corporation
By: /s/ Xxx Xxxxxx
-------------------------------
Xxx Xxxxxx, Vice President and
Chief Financial Officer
INFORMATION + GRAPHICS SYSTEMS, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx,
Chief Financial Officer
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LIST OF "GENERIC" OR THIRD PARTY TOOLS
Following is the list of third party tools used for development on the NewZen
project:
Oracle (client tools and server)
PVCS Tracker
Microsoft Data Access Components (MDAC)
Microsoft Access 97
Microsoft Word 97
Microsoft Excel
Microsoft Visual Source Safe
Microsoft Visual Basic 5
UNIX shell scripts
Perl
C
Protoview Active X Components
Crystal Reports
FarPoint Technologies Suite (Spread)
pcAnywhere
FaxRight (used only by Newgen staff)
XXXxx
VideoSoft VS Spell
DynaZip Data Compression Toolkit
Computer Simple DBDate
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STATEMENT OF WORK
FOR NEWGEN RESULTS CORPORATION
This Statement of Work, ("SOW"), for the completion of the development of the
NewZen Customer Retention System ("the System"), is an attachment to the
General Services Agreement (the "Agreement"), dated December 25, 1997, as
amended, between Bolder Heuristics, Inc. ("BHI") and Newgen Results
Corporation ("Newgen", and collectively with BHI, the "Parties"). The terms
and conditions of this SOW, combined with the terms of the Agreement, as
amended, supercede any prior SOW.
The Parties recognize that the development and implementation of the System
requires effort and responsiveness by each Party. This SOW sets forth a
process for completion of BHI's development and delivery of the System under
the Agreement.
1. TASKS, MILESTONES AND SCHEDULE
1.1 The Parties desire to set forth the following phases ("Phases") which
shall constitute milestone objectives in this SOW:
Phase Name Estimated Start Date Finish Date Milestone
Hours Payment
----------------------------------------------------------------------------------------------------
Phase 1 790.5 2/1/99 3/24/99 $30,000.00
----------------------------------------------------------------------------------------------------
Phase 2 457.6 2/1/99 4/27/99 $30,000.00
----------------------------------------------------------------------------------------------------
Phase 3 670.0 2/1/99 4/2/99 $30,000.00
----------------------------------------------------------------------------------------------------
Phase 4: Prepare and Deliver Alpha 48.0 4/27/99 5/19/99 $30,000.00
----------------------------------------------------------------------------------------------------
Phase 5: Alpha release 270.6 5/19/99 6/28/99 $30,000.00
----------------------------------------------------------------------------------------------------
Phase 6: Beta release 412.0 6/28/99 7/27/99 $30,000.00
----------------------------------------------------------------------------------------------------
Phase 7: Final Production System TBD 7/27/99 8/3/99 $53,252.87
Release
----------------------------------------------------------------------------------------------------
Phase 8: Technology Transfer TBD 7/27/99 7/28/99 $45,396
(includes
payment for
agreed ECOs
----------------------------------------------------------------------------------------------------
Expiration of Warranty Period N/A 8/3/99 9/2/99 $108,800
----------------------------------------------------------------------------------------------------
Additional ECOs N/A N/A 9/2/99 or as TBD
agreed
----------------------------------------------------------------------------------------------------
1.2 The Parties acknowledge that the above-referenced "Finish Date" for each
Phase is dependent on the cooperation and input of each Party. Any delay in
the milestones caused, in
1.
whole or in part, by Newgen shall extend the remaining schedules for an
equitable period of time at least equal to the delay caused by Newgen. The
parties further acknowledge that any target completion dates, except for the
Phases listed above, reflect only the mutual goals of the Parties.
1.3 In the event that Newgen requests any additional tasks outside of the
scope of the Functional Specification, or requests any modifications thereto,
then if BHI agrees to perform such additional or changed tasks, the costs for
such tasks shall be governed by Section 2.0 below, and the Finish Date of any
affected Phase shall be equitably adjusted accordingly or by mutual agreement
of the Parties.
1.4 Newgen acknowledges that BHI has delivered and Newgen has accepted Phases
1 through 5 in accordance with the delivery plan ("Delivery Plan") mutually
agreed to by the Parties. The parties agree that there will not be a
contractual Delivery Plan for Phases 4 through 8, and therefore, the relevant
acceptance criteria for Phases 4 through 8 shall be that BHI's deliverables
conform in all material respects with the applicable terms contained within
the Functional Specification dated October 21, 1997, as amended by the
Specification Resolution Document attached hereto in Exhibit A. Acceptance of
any deliverable shall not be contingent upon any particular testing plan
unless such test plan has been agreed, in advance, by both parties.
1.5 The following terms shall control delivery and acceptance:
(a) Pre Alpha release: Phases 1 through 3 testing shall be solely for
the purposes of determining that BHI has reasonably addressed, in all
substantial respects, the issues identified in the Issue/Resolution List
attached hereto as Exhibit A. In no event shall the acceptance criteria
for any of Phases 1 through 3 exceed the requirements documented in the
Functional Specification as amended by Exhibit A hereto. Software bugs
not previously identified in Exhibit A shall not constitute grounds for
rejection.
(b) Alpha release: The software shall contain substantially all
functionality associated with the Functional Specification, provided
however that bugs may still exist. The alpha release shall be deemed
acceptable notwithstanding bugs if it reasonably permits BHI to proceed
with beta development.
(c) Beta release: The beta release shall demonstrate increased stability
compared to the alpha release and all pre-identified severity 1 and
severity 2 bugs shall have been corrected. The beta release shall be
deemed acceptable notwithstanding the identification of a reasonable
number of bugs provided that the beta release is stable enough to permit
BHI to proceed with development of the final release of the System.
1.6 In the event BHI fails to achieve the milestone delivery of a Phase by a
delay of greater than forty-five (45) days (subject to extension for delays
not caused by BHI), then Newgen may notify BHI of its intention to terminate
the Agreement.
2.0 PRICE
The Phases covered under this SOW shall be completed on a fixed price basis
to the extent that they are within the scope of the Functional Specification
dated October 21, 1997, as amended. Any tasks performed that are outside of
the fixed-price scope of this Agreement shall be pre-approved by both Parties
through a written engineering change order ("ECO"). The rate for work under
an ECO shall be $117.00 per hour.
2.
The Parties agree that the following activities are outside the scope of the
fixed price portion of the contract:
1. Any technology transfer activities beyond those specified in the
Implementation Plan, Version V1.10, dated 12/23/97; additional one day
Technology Transfer meetings shall be charged to Newgen on a fixed price
basis of $3,250.00 per meeting and shall be mutually pre-approved
through a written ECO. Attached to this SOW as Exhibit B are agreed upon
documentation prototypes for the type and level of Technology Transfer
materials that BHI will deliver within the scope of this SOW.
2. Software maintenance and modification not specifically agreed to in
the Functional Specification and/or Specification Resolution Document.
3. Preparation, training and readiness assessments of Newgen personnel,
hardware, business processes, and operations; data validation and
conversion (except as specifically agreed in writing); any other task
not specifically agreed in writing.
4. All tasks, services and functions not specifically agreed in writing
to be BHI's responsibility shall be retained by Newgen.
5. Newgen shall be responsible for all delays, extra costs, and
non-conformities caused by Newgen's failure to fulfill its performance
obligations under this SOW.
3.0 PAYMENT SCHEDULE
A lump sum payment of $65,554.50, plus payments for any unpaid amounts for
Phases 1 through 5, shall be paid by Newgen to BHI upon execution of this
SOW.
Progress payments under the fixed-price portion of this Agreement shall be
payable in installments as specified in Section 1.1 upon the completion of
each of the listed milestones.
4.0 LIMITATION OF LIABILITY
Under no circumstances, and notwithstanding any indications to the contrary,
shall BHI be held liable for any incidental or consequential damages
(including any and all loss contingencies disclosed in Newgen's S-1/A public
filing with the Securities and Exchange Commission dated March 19, 1999), nor
lost profits or loss of business as a result of any delay, breach, or failure
to perform under this Agreement.
5.0 LIMITED SUPPORT AGREEMENT
Following BHI's delivery to Newgen of Phase 7, BHI agrees to make available
support services for a period of six (6) months, and Newgen shall pay to BHI
a minimum, monthly fee of $17,500.00 ("Minimum Support Fee"). The Minimum
Support Fee shall cover the hourly-based services of BHI up to hours equal to
one full time equivalent ("FTE"), provided that BHI shall have discretion to
deploy staffing of one or more persons to perform services equal to one FTE
during any month, and the Minimum Support Fee shall be payable regardless of
any lesser amount of hours that may be required. The support services tasks
shall, in general, constitute efforts to correct any failures of BHI's
deliverables to conform to BHI's warranties and/or
3.
perform in accordance with the acceptance criteria for such deliverables, or
any other related tasks reasonably requested by Newgen. Newgen shall pay the
Minimum Support Fee monthly in advance, and shall pay all reasonable BHI
travel and incidental expenses related to the support services. Should the
parties mutually agree to extend support services for a level of effort in
excess of one FTE or for a term in excess of six months, they shall execute
an ECO documenting such agreement. BHI shall not be required to perform any
additional support services except pursuant to an executed ECO.
Signed this 15th day of July, 1999.
/s/ Xxxxxx Xxxxx /s/ Xxx Xxxxxx
---------------------------------- ------------------------------------
Boulder Heuristics, Inc. Newgen Results Corporation
XXXXXX XXXXX XXX XXXXXX
CHIEF EXECUTIVE OFFICER CHIEF FINANCIAL OFFICER
4.
