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EXHIBIT 10.42
SYSTEMS WORK AGREEMENT
(Fixed Bid Pricing)
THIS SYSTEMS WORK AGREEMENT (this "Agreement") is made and entered into
this 27th day of July, 2000, by and between High Speed Net Solutions, Inc.
(hereinafter "Client"), a Florida corporation with offices located at 000
Xxxxxxxxxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, XX 00000 and Nexgenix, Inc.
(hereinafter "Nexgenix"), a Delaware corporation, with offices located at 000
Xxxxxxxx, Xxxxxx, Xxxxxxxxxx 00000.
WITNESSETH:
WHEREAS, Client desires to engage Nexgenix from time to time pursuant
to one or more Statement(s) of Work to develop, create, test, and deliver
certain programming materials and Nexgenix is interested in accepting such
engagements, subject to the parties' further agreement on the scope and terms of
each such Statement of Work; and
WHEREAS, Client and Nexgenix mutually desire to set forth in this
Agreement certain terms and conditions applicable to all such engagements;
NOW, THEREFORE, Client and Nexgenix, intending to be legally bound,
hereby agree as follows:
1. Definitions.
When used in this Agreement and in each Statement of Work issued
hereunder, the capitalized terms listed in this Section 1 shall have the
following meanings:
1.1 "Code" shall mean computer programming code. If not otherwise
specified, Code shall include both Object Code and Source Code. Code shall
include any Maintenance Modifications or Basic Enhancements thereto created by
Nexgenix from time to time, and shall include Major Enhancements thereto when
added to the Code in connection with a Statement of Work issued hereunder.
(a) "Object Code" shall mean the machine-readable form of the Code.
(b) "Source Code" shall mean the human-readable form of the Code
and related system documentation including all comments and any
procedural code such as job control language.
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1.2 "Deliverables" shall mean all Code, Documentation, and other
materials developed for or delivered to Client by Nexgenix under this Agreement
and under any Statement of Work issued hereunder.
1.3 "Derivative Work" shall mean a work that is based upon one or more
preexisting works, such as a revision, modification, translation, abridgement,
condensation, expansion, or any other form in which such preexisting works may
be recast, transformed, or adapted, and that, if prepared without authorization
of the owner of the copyright in such preexisting work, would constitute a
copyright infringement. For purposes hereof, a Derivative Work shall also
include any compilation that incorporates such a preexisting work.
1.4 "Documentation" shall mean user manuals and other written materials
that relate to particular Code, including materials useful for design (e.g.,
logic manuals, flow charts, and principles of operation). Documentation shall
include any Maintenance Modifications or Basic Enhancements thereto created by
Nexgenix from time to time, and shall include Major Enhancements thereto when
added to the Documentation in connection with a Statement of Work issued
hereunder.
1.5 "Enhancements" shall mean changes or additions, other than
Maintenance Modifications, to Code and related Documentation, including all new
releases, that improve functions, add new functions, or significantly improve
performance by changes in system design or coding.
(a) "Basic Enhancements" shall mean any Enhancements that are not
Major Enhancements.
(b) "Major Enhancements" shall mean changes or additions to Code
and related Documentation that (1) have a value and utility
separate from the use of the Code and Documentation; (2) as a
practical matter, may be priced and offered separately from the
Code and Documentation; and (3) are not made available to
any of Nexgenix's clients without separate charge.
1.6 "Error" shall mean any error, problem, or defect resulting from (a)
an incorrect functioning of Code, or (b) an incorrect or incomplete statement of
diagram in Documentation, if such an error, problem, or defect renders the Code
inoperable, causes the Code to fail to meet the specifications thereof, causes
the Documentation to be inaccurate or incomplete in any material respect, causes
incorrect results, or causes incorrect functions to occur when any such
materials are used.
1.7 "Maintenance Modifications" shall mean any modifications or
revisions, other than Enhancements, to Code or Documentation that correct
Errors, support new releases of the
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operating systems with which the Code is designed to operate, support new
input/output (I/O) devices, or provide other incidental updates and corrections.
1.8 "Statement of Work" shall mean a purchase offer of Client, a
proposal of Nexgenix, or another written instrument that meets the following
requirements:
(a) Includes substantially the following statement: "THIS IS A
STATEMENT OF WORK UNDER SYSTEMS WORK AGREEMENT DATED: ______."
(b) Is signed on behalf of both parties by their authorized
representatives
(c) Contains the following five mandatory items:
(i) Description and/or specifications of the services to be
performed and the Deliverables to be delivered to Client;
(ii) The name and address of a Technical Coordinator for each
of Client and Nexgenix;
(iii) The amount, schedule, and method of payment;
(iv) The time schedule for performance and for delivery of the
Deliverables; and
(v) Completion and acceptance criteria for the Deliverables.
In addition, when applicable, the Statement of Work may include:
(d) Provisions for written and/or oral progress reports by
Nexgenix;
(e) Detailed functional and technical specifications and standards
for all services and Deliverables, including quality standards;
(f) Documentation standards;
(g) Lists of any special equipment to be procured by Nexgenix or
provided by Client for use in performance of the work;
(h) Test plans and scripts; and
(i) Such other terms and conditions as may be mutually agreeable
between parties.
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2. Contract Administration.
2.1 Contract Coordinator. Upon execution of this Agreement, each party
shall notify the other party of the name, business address, and telephone number
of its Contract Coordinator. The Contract Coordinators of each party shall be
responsible for arranging all meetings, visits, and consultations between the
parties that are of a nontechnical nature. The Contract Coordinators shall also
be responsible for receiving all notices under this Agreement and for all
administrative matters such as invoices, payments, and amendments.
2.2 Technical Coordinator. Each Statement of Work shall state the name,
business address, and telephone number of the Technical Coordinators of each
party. The Technical Coordinators of each party designated for a particular
Statement of Work shall be responsible for technical and performance matters,
and the transmission and receipt of both Deliverables and technical information
between the parties, insofar as they relate to such Statement of Work.
2.3 Issuance of Statement(s) of Work. The initial Statement(s) of Work
agreed to by the parties are set forth as attachments to this Agreement.
Additional Statement(s) of Work, regardless of whether they relate to the same
subject matter as the initial Statement(s) of Work, shall become effective upon
execution by authorized representatives of both parties.
3. Changes.
Changes in any Statement of Work or in any of the Specifications or
Deliverables under any Statement of Work shall become effective only when a
written change order request is executed by authorized representatives of both
parties. Change order requests that do not substantially affect the nature of
Deliverables, their performance or functionality, and that do not change
schedules by more than 1 week or dollar amounts by more than 1% may be requested
and/or accepted by the parties' Technical Coordinators. All other change order
requests with respect to this Agreement, any Statement of Work, or any
Specifications or Deliverables must be requested and/or accepted by both
parties' Contract Coordinators and signed by both companies' authorized
representatives.
4. Notice of Delay.
Nexgenix and Client both agree to notify the other party promptly of
any factor, occurrence, or event coming to its attention that may affect
Client's or Nexgenix's ability to meet the requirements of any Statement of Work
issued under this Agreement, or that is likely to occasion any material delay in
delivery of Deliverables. Such notice shall be given in the event of any loss or
reassignment of key employees, threat of strike, or major equipment failure in
which case reasonable additional time shall be afforded to complete the delivery
of the Deliverables.
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5. Invoicing.
Nexgenix shall submit invoices to Client for payment for work and/or
Deliverables at such time or times as payment becomes due under each Statement
of Work. In the event that invoicing is based on a Time and Materials basis,
Nexgenix shall submit invoices to Client bi-monthly. All invoices shall be due
and payable within thirty (30) days of presentment, without holdback, shall be
addressed to Client's Contract Coordinator, and shall be submitted no more
frequently than bi-monthly for charges due or accruing in each calendar month.
In the event that a start of work payment is requested as set forth in a
Statement of Work, it shall be due and payable prior to the commencement of any
work. Each Deliverable shall be separately invoiced and paid for and the
rejection of any Deliverable hereunder shall not serve as the basis for
nonpayment or delay in payment for any other Deliverable hereunder. Client shall
reimburse Nexgenix for all travel and other reasonable expenses under each
Statement of Work as set forth in Nexgenix's Travel and Expense Policies. Each
invoice shall separately set forth travel and other reasonable expenses, if any,
for reimbursement. Supporting documentation (e.g., receipts for air travel,
hotels, and rental cars) shall accompany any such invoice. Final payment shall
be invoiced payable within ten (10) days of final delivery. Any invoice not paid
within thirty (30) days of delivery of invoice to Client shall accrue late fees
in the amount equal to one and one-half percent (1-1/2%) per month of the
outstanding balance of such invoice. Client shall be responsible to pay any and
all applicable sales taxes, state and local privilege or excise taxes based on
revenue or sale or any other applicable taxes and government fees. Nexgenix
shall be responsible for any and all payroll or employment taxes of any kind
when applicable, including but not limited to FICA, FUTA, federal personal
income tax, state personal income tax, state disability insurance tax and state
unemployment insurance tax and Client acknowledges and agrees not to deduct or
withhold any payroll or employment taxes with respect to payment to Nexgenix.
6. Records.
Nexgenix shall maintain records in accordance with sound accounting
practices to substantiate Nexgenix's charges under each Statement of Work and on
each invoice.
7. Expenses.
Except as expressly agreed in a Statement of Work, each of Client and
Nexgenix shall bear all of its own expenses arising from its performance of its
obligations under this Agreement and each Statement of Work issued hereunder,
including (without limitation) expenses for facilities, work spaces, utilities,
management, clerical and reproduction services, supplies, and the like.
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8. Reports.
8.1 Monthly Reports. Nexgenix agrees to provide to Client at least
monthly with a written report of the progress of the work required under each
Statement of Work issued hereunder, any anticipated problems (resolved or
unresolved), and any indication of delay in fixed or tentative schedules.
8.2 Periodic Reports. Approximately once every month, the parties shall
meet for a formal progress presentation of approximately two (2) hours'
duration, during which Nexgenix's management shall describe the status of the
work required under each Statement of Work issued hereunder. Such presentation
shall provide projections of the time of completion, and the status of
Nexgenix's services and Deliverables, and shall address any problems that have
come to Nexgenix's attention and Nexgenix's views as to how such problems may be
resolved.
9. Delivery and Acceptance.
Nexgenix shall deliver all Deliverables, upon completion, to Client's
Technical Coordinator for testing and acceptance. Nexgenix shall memorialize
such delivery in a Delivery Confirmation that sets forth the nature and
condition of the Deliverables, the medium of delivery, and the date of their
delivery. Client's Technical Coordinator shall countersign such Delivery
Confirmation so as to indicate its receipt of the contents described therein,
and the Delivery Confirmation shall thereupon be transmitted to the parties'
Contract Coordinators. Unless a different procedure for testing and acceptance
is set forth in a Statement of Work, Client's Technical Coordinator shall
commence acceptance testing immediately following its receipt of the
Deliverables and complete such testing within ten (10) days after receipt of the
Deliverables. Upon completion of such testing, Client shall issue to Nexgenix's
Technical Coordinator notice of acceptance or rejection of the Deliverables. In
the event of rejection, Client shall give its reasons for rejection to
Nexgenix's Technical Coordinator in reasonable detail. Nexgenix shall use all
reasonable effort to correct any deficiencies or nonconformities and resubmit
the rejected items as promptly as possible.
10. Ownership and Rights.
10.1 Ownership of Work Product by Client. All original written
material, including programs, documentation, diskettes, tapes, listings and any
other material generated by Nexgenix personnel for Client ("Original Materials")
shall constitute works made for hire and shall belong exclusively to Client and
Nexgenix hereby assigns to Client all rights to Original Materials required
solely for any required filings, fees or other actions to establish such
ownership right. All Other Materials developed for Client shall be owned by
Client and shall be considered work made for hire by Nexgenix for Client. Client
shall own all United States and International copyrights in the Original
Materials.
10.2 Vesting of Rights. With the sole exception of any preexisting
works identified in Section 10.3 below, Client, its successors and assigns,
shall have the right to obtain and hold in its
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or their own name(s) all copyright registrations and other evidence of rights
that may be available for Deliverables.
10.3 Preexisting Works. Client acknowledges that, with the exception of
Original Materials, Nexgenix shall retain all right, title and proprietary
interest in any and all work product not developed under this Agreement, and
that Nexgenix may have developed, or may develop in the future, from time to
time, independently of its activities under this Agreement, including certain
work product with similar functionality as those developed hereby. Client agrees
to and consents to such development by Nexgenix provided that (a) no source code
used in the development of Client's work product shall have been used or copied
in any manner which, if so adjudicated, would constitute a copyright violation
of Client's existing copyrights, and (b) Client continues to own all right,
title, copyright and other proprietary interest in any Original Materials or
other Nexgenix-developed product developed directly for Client's benefit
hereunder. In addition, Client acknowledges that Nexgenix claims and reserves
all rights and benefits afforded under federal law in Nexgenix's existing
programs as copyrighted works (e.g. Nexgenix's application frameworks and
application templates, etc.). Further, in the event that any Deliverable
constitutes a Derivative Work of any preexisting work not owned by Nexgenix or
which is and will continue to be the property of Nexgenix, then Nexgenix shall
provide in the Statement of Work pertaining to such Deliverable (a) the nature
of such preexisting work; (b) its owner (a third party or Nexgenix); (c) any
restrictions or royalty terms applicable to Nexgenix's use of such preexisting
work or Client's exploitation of the Deliverable as a Derivative Work thereof;
and (d) the source of Nexgenix's authority to employ the preexisting work in the
preparation of the Deliverable. Nexgenix hereby grants Client a non-exclusive,
non-sublicenseable, non-transferable, perpetual, royalty-free, license in any
Nexgenix Preexisting Works that may be included in a Deliverable for use in
connection with the internal business activities of Client.
11. Confidential Information.
From time to time Client and Nexgenix may provide each other with its
own confidential business and technical information in connection with the work
to be performed by Nexgenix under Statement(s) of Work issued hereunder. Such
information shall be designated as confidential upon or prior to disclosure. All
confidential written materials shall be marked with the legend "Confidential."
Each party hereto shall use its best efforts to prohibit any use or disclosure
of Confidential Information, except as necessary to perform work under the
Statement(s) of Work issued hereunder. Notwithstanding anything to the contrary
herein, Nexgenix and its personnel shall be free to use and employ its and their
general skills, know-how, and expertise, and to use, disclose, and employ any
generalized ideas, concepts, know-how, methods, techniques, or skills gained or
learned during the course of any assignment, so long as it or they acquire and
apply such information without disclosure of any confidential or proprietary
information of Client. Client acknowledges and understands that Nexgenix is the
sole owner of its Distributed Development Methodology ("METHODOLOGY") and as
such acknowledges and agrees that Nexgenix shall have the sole and exclusive
ownership of any enhancements, all media and documentation relating to any such
enhancements (including their development or their operation, testing or use)
and all reports and copies thereof, and all intellectual property rights
associated therewith
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(including, without limitation, rights to patents, patent applications,
copyrights, trade secrets, or know-how) concerning the METHODOLOGY. Client
acknowledges that the METHODOLOGY, including associated report formats, screen
displays, and menu features, constitute Confidential Information and shall
constitute copyrighted works protected by federal and international copyright
laws. Client shall not permit any personnel to remove, copy or modify any
proprietary or other legends or restrictive notices contained or included in any
materials provided by Nexgenix. Client shall not use (except for the purpose of
this Agreement) or disclose to any third party any Confidential Information
relating to the METHODOLOGY as supplied by Nexgenix. Any disclosure of such
Confidential Information to agents or employees by Client shall be made only in
the normal course of business on a need-to-know basis within the scope and
purpose of this Agreement and under prior written agreements requiring such
agents or employees to treat all such information strictly as confidential and
use only for the purposes of this Agreement. Client shall not make copies of any
materials containing such Confidential Information except as authorized in
writing by Nexgenix.
12. Representations and Warranties.
Nexgenix makes the following representations and warranties for the
benefit of Client, as a present and ongoing affirmation of facts in existence at
all times when this Agreement or any Statement of Work issued hereunder is in
effect:
12.1 No Infringement.
(a) Nexgenix represents and warrants that all Deliverables, do not and
will not infringe any patents, copyrights, or other intellectual property rights
of any third party, nor has any claim (whether or not embodied in an action,
past or present) of such infringement been threatened or asserted, nor is such a
claim pending against Nexgenix.
(b) Nexgenix hereby agrees to indemnify, defend and hold harmless
Client, and its officers, directors and partners (each, an "Indemnified Party")
against any and all claims, demands, causes of action, damages, costs, expenses,
penalties, losses and liabilities (whether under a theory of negligence, strict
liability, contract or otherwise) incurred or to be incurred by an Indemnified
Party (including but not limited to costs of investigation and reasonable
attorney and other third party fees and, to the extent permitted by law, fines,
penalties and forfeitures in connection with any proceedings against the
Indemnified Party) arising out of or resulting from a breach of Section 12.1(a).
(c) Notwithstanding anything to the contrary herein, Client agrees to
indemnify, defend and hold Nexgenix and its employees, representatives, agents
and affiliates, harmless against any claim, suit, action, or other proceeding
brought against Nexgenix based on or arising from a claim that Third-Party
Software contained in any work product infringes in any manner any copyright,
patent, trademark, trade secret or any other intellectual property right of any
third party. Nexgenix will promptly notify Client of any such claim. The Client
will bear full responsibility for
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the defense (including any settlements); provided, however, that (i) Client will
keep Nexgenix informed of, and consult with Nexgenix in connection with the
progress of such litigation or settlement, and (ii) Client will not have any
right, without the written consent of Nexgenix, to settle any such claim if such
settlement does not completely absolve Nexgenix of any and all liability in
connection with such claim or imposes ongoing restrictions on Nexgenix's conduct
of its business, Client acknowledges and agrees that it must use reasonable
efforts to pursue any indemnification or other rights it may have against
providers of the Third Party Software pursuant to license agreements with such
providers for claims of infringement with respect to Third Party Software.
12.2 Conformity, Performance, Compliance, Warranty Limitation. Nexgenix
represents and warrants that all Deliverables, at the time of Acceptance of
Deliverables in accordance with Section 9 of this Agreement, will conform to the
specifications and functions as developed and set forth in the Statement(s) of
Work relating thereto; and that Nexgenix will perform all work called for by
each Statement of Work issued hereunder. Neither party hereto shall be obligated
or liable to the other or to any other person for any loss of profits, loss of
use, or incidental, special or consequential damages, whether based on contract,
tort (including negligence), strict liability, or any other theory or form of
action, even if such party has been advised of the possibility thereof, arising
out of or in connection with this Agreement. In no event shall Nexgenix be
liable for any damages in excess of any amounts paid to it hereunder. Without
limiting the generality of the preceding sentence, neither party shall be liable
for any personal injury or property damage. Nexgenix warrants that the code
and/or documentation will perform as per the specifications developed and set
forth in the attached Statement(s) of Work and provides no additional warranty
after Final Acceptance of Deliverables as set forth in the Statement(s) of Work.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION, NEXGENIX DISCLAIMS ANY AND ALL
WARRANTIES WITH RESPECT TO THE DELIVERABLES, CODE OR DOCUMENTATION, WHETHER
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR
ANY PARTICULAR PURPOSE OR MERCHANTABILITY.
12.3 Year 2000 Warranty: Nexgenix represents and warrants that all
software code under the attached Statement of Work, developed directly by
Nexgenix, in source code or executable code form that receives, stores,
processes or outputs year information is in 4 (four) digit form. However,
Nexgenix will not be responsible for any non conformation of the processing,
storing and displaying of year data in 4-digit format (non year 2000 compliant)
for software and/or codes not developed directly by Nexgenix under the attached
Statement of Work including all third party development tools, frameworks,
software and/or codes, operating system and hardware platforms and integration
to other applications, software and/or components thereof as an integration
solution delivery.
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13. Term and Termination.
13.1 Term of Agreement. This Agreement shall be effective upon the date
first written above. The term of this Agreement shall be for a period of two (2)
years and shall automatically renew each year after the end of the initial two
year period, unless terminated in accordance with the terms of this Agreement.
However, this Agreement shall continue to remain in effect with respect to any
Statement(s) of Work already issued hereunder at the time of such termination,
until such Statement(s) of Work are themselves terminated and/or performance
thereunder is completed.
13.2 Termination of Agreement. Either party may terminate this
Agreement upon not less than ninety (90) days' written notice to the other
party. However, this Agreement shall continue to remain in effect with respect
to any Statement of Work already issued hereunder until such other Statement of
Work is itself terminated and/or performance thereunder is completed. Nexgenix
shall be paid for all work performed through the date of termination. Nexgenix
may, at its sole discretion, terminate this Agreement and any Statement(s) of
Work under this Agreement for non-payment of fees hereunder.
13.3 Survival. In the event of any termination of this Agreement,
Sections 8 and 10 through 14 hereof shall survive and continue in effect and
shall inure to the benefit of and be binding upon the parties and their legal
representatives, heirs, successors, and assigns.
14. Miscellaneous.
14.1 Notices. All notices and all other communication provided herein
shall be given in writing, by personal delivery, by facsimile transmission or by
registered or certified mail, return receipt requested, or delivered by a
recognized national overnight courier service as follows:
If to Nexgenix:
Nexgenix, Inc.
00 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
If to Client:
High Speed Net Solutions, Inc.
000 Xxxxxxxxxxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
All notices will be deemed to be given when received in
accordance with the provisions of this Section 14.
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14.2 Force Majeure. Neither party shall be in default by reason of
failure in performance of this Agreement if such failure arises, directly or
indirectly, out of causes reasonably beyond the control or foreseeability of
either party, including but not limited to, default by suppliers, acts of God or
the public enemy, U.S. or foreign governmental acts in either a sovereign or
contractual capacity, transportation contingencies, fire, flood, epidemic,
restrictions and strikes.
14.3 No Agency. Nexgenix, in rendering performance under Statement(s)
of Work issued hereunder from time to time, is acting solely as an independent
contractor. Client understands and agrees that this Agreement does not create
any agency, employment, partnership, joint venture or similar relationship
between the parties, and neither party has any authority to bind the other with
respect to any matter. Under no circumstances shall either party have the right
or authority to act or make any commitment of any kind to any third party on
behalf of the other party or to represent the other party in any way as an
agent. Client acknowledges that Nexgenix will not be entitled to any benefits
available to Client's employees and Nexgenix shall be responsible for all taxes
upon Nexgenix's income.
14.4 No Assignment. Neither party may, without the prior written
consent of the other party, assign or transfer this Agreement or any obligation
incurred hereunder, except by merger, reorganization, consolidation, or sale of
all or substantially all of such party's assets. Any attempt to do so in
contravention of this Section shall be void and of no force and effect.
14.5 Authority of Nexgenix. Nexgenix has the sole right and obligation
to supervise, manage, contract, direct, procure, perform, or cause to be
performed all work to be carried out by Nexgenix hereunder unless otherwise
provided herein.
14.6 Publicity. Client agrees to provide Nexgenix with the right to
include Client's name in any of Nexgenix's client listings, including but not
limited to marketing materials, press releases, website location, with Client's
prior written approval.
14.7 No Waiver. No delay or omission by either party hereto to exercise
any right or power occurring upon any noncompliance or default by the other
party with respect to any of the terms of this Agreement shall impair any such
right or power or be construed to be a waiver thereof. A waiver by either of the
parties hereto of any of the covenants, conditions, or agreements to be
performed by the other shall not be construed to be a waiver of any succeeding
breach thereof or of any covenant, condition, or agreement herein contained.
Unless stated otherwise, all remedies provided for in this Agreement shall be
cumulative and in addition to and not in lieu of any other remedies available to
either party at law, in equity, or otherwise.
14.8 Required Approvals. Where agreement, approval, acceptance, or
consent by either party is required by any provision of this Agreement, such
action shall not be unreasonably delayed or withheld.
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14.9 Non-Solicitation. Client and Nexgenix will not directly or
indirectly, solicit or offer employment to any personnel or cause any such
personnel to leave the employ of the other party until one (1) year after the
termination of the Agreement.
14.10 Xxxxxxx Xxxxxxx. Both parties acknowledge that they are aware
and agree that they will advise their directors, employees, agents, advisors and
affiliates who are informed of Confidential Information that the United States
securities laws prohibit any person who has material, nonpublic information
concerning the matters which are the subject of this Agreement from purchasing
or selling the securities of either company or their affiliates, or from
communicating such information to any other person under circumstances in which
it is reasonably foreseeable that such person is likely to purchase or sell such
securities. Both parties agree to comply with such laws.
14.11 Material Breach. In the event of a material breach of this
Agreement by one party, the other party may (reserving cumulatively all other
remedies and rights under this Agreement and in law and in equity) terminate
this Agreement by giving thirty (30) days prior written notice; provided,
however, any such termination shall not be effective if the party in breach has
cured the breach of which it has been notified prior to the expiration of said
thirty (30) days. Each party further acknowledges that its breach of
confidentiality under this Agreement will cause irreparable damage and hereby
agrees that the other party shall be entitled to seek immediate injunctive
relief under this Agreement as well as such further relief as may be granted by
a court of competent jurisdiction.
14.12 Conflict. In the event of any conflict between this Agreement and
any Statement(s) of Work, the provisions of this Agreement shall prevail.
14.13 Arbitration. Any dispute or claim arising out of or in relation
to this Agreement, or the interpretation, making, performance, breach or
termination thereof that cannot be amicably resolved by the parties, shall be
finally settled by binding arbitration under the rules of the American
Arbitration Association as presently in force ("Rules") and each party will
appoint an arbitrator, and the two thus selected to designate a third in
accordance with said Rules. The arbitration will be held as promptly as possible
at New York, New York. Judgment on the award rendered may be entered in any
court having jurisdiction thereof. Any monetary award shall be in U.S. dollars
and the arbitration shall be conducted in the English language. The
arbitrator(s) will not award any exemplary or punitive damages. The losing party
shall be responsible for paying all costs of the arbitration, including but not
limited to reasonable legal expenses of the winning party. The parties may apply
to any court of competent jurisdiction for temporary or permanent injunctive
relief, without breach of this Section 14.13 and without any abridgment of the
powers of the arbitrator.
14.14 Export Compliance. The parties agree to comply with U.S. export
control laws, regulations and requirements, including without limitation the
U.S. Export Administration Regulations. Client shall provide prior written
notice to Nexgenix in the event that any of Client's
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software or technology is subject to U.S. export controls prior to commencement
of work under this Agreement. The notice shall identify the U.S. government
agency having jurisdiction with respect to the software or technology and the
classification of such software or technology under applicable regulations. In
the absence of notice from Client, Nexgenix shall presume that the software and
technology are not subject to U.S. export controls. The parties agree that they
shall not export, re-export, or provide access directly or indirectly to any
Deliverable other than in strict compliance with all applicable laws and this
Agreement shall indemnify, defend, and hold the other party hereunder harmless
from and against any and all claims, demands, actions, suits, proceedings,
losses, damages, penalties, obligations, liabilities, costs and expenses
(including, without limitation, reasonable attorneys' fees and costs) arising
directly or indirectly from a breach of this provision.
14.15 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California.
14.16 Section Headings; Exhibits. The section and subsection headings
used herein are for reference and convenience only, and shall not enter into the
interpretation hereof. The exhibits referred to herein and attached hereto, or
to be attached hereto, including all Statement(s) of Work issued hereunder from
time to time, are incorporated herein to the same extent as if set forth in full
herein.
14.17 Multiple Counterparts. This Agreement may be executed in several
counterparts, all of which taken together shall constitute one single Agreement
between the parties.
14.18 Entire Agreement. This Agreement and the exhibits annexed hereto,
together with the Statements of Work issued from time to time hereunder,
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof, and all prior or contemporaneous agreements or
understandings are merged herein. No change, waiver, or discharge hereof shall
be valid unless it is in writing and is executed by the party against whom such
change, waiver, or discharge is sought to be enforced. The invalidity or
unenforceability of any provision(s) of this Agreement shall not affect the
validity or enforceability of any other provision(s) of this Agreement which
shall remain in full force and effect.
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IN WITNESS THEREOF, the parties have executed this Agreement, effective
as of the date first set forth above.
High Speed Net Solutions, Inc. NEXGENIX, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxx
-------------------------- ---------------------------------
Printed Name: Xxxxxx X. Xxxxxx Printed Name: Xxxx X. Xxxxxxx
---------------- -----------------------
Title: CTO Title: Controller
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EXHIBIT A
OUTLINE OF STATEMENT OF WORK
(ACTUAL STATEMENT OF WORK TO REPLACE THIS EXHIBIT OUTLINE)
Cover Page
Copyright Page
Statement of Work Acceptance Memo
1.0 EXECUTIVE SUMMARY
1.1 Overview
1.2 Project Summary
1.3 Development Approach Summary
1.4 Investment Summary Overview
1.5 Acceptance Procedure
1.6 Glossary of Terms (Optional)
2.0 PROJECT SCOPE
2.1 Project Overview
2.2 Baseline Business/Functional Requirements
2.3 Baseline Component Matrix
2.4 Issues to be Resolved (Optional)
3.0 TECHNICAL APPROACH
3.1 Technical Requirements
3.2 Proposed Hardware and Network Architecture
3.3 Proposed Application Architecture
3.4 Infrastructure Required for the Project
3.5 Development Environment
4.0 PROJECT APPROACH AND DELIVERABLES
4.1 Project Approach
4.2 Approach Summary (Optional)
4.3 Project Management Roles and Responsibilities
4.4 Knowledge Transfer (Optional)
4.5 Deployment Support (Optional)
5.0 ASSUMPTIONS
5.1 Scope Assumptions
5.2 Technical Architecture Assumptions
5.3 Project Approach Assumptions
5.4 Infrastructure Assumptions
5.5 Investment and Pricing Assumptions
6.0 INVESTMENT SUMMARY
6.1 Delivery and Payment Schedule
6.2 Work Segment I Deliverable Schedule and Investment
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6.3 Warranty
6.4 Infrastructure for Nexgenix Consultants
6.5 Travel and Living Expenses
6.6 Changes to Fees and Schedules
6.7 Validity of Statement of Work
6.8 Delivery and Acceptance Procedure
7.0 APPENDIX A: PROJECT COMMUNICATIONS
7.1 Weekly Status Report
7.2 Project Weekly Status Meeting
7.3 Executive Review (Optional)
7.4 Project Meetings
7.5 Delivery Receipt Memo
7.6 Delivery Acceptance Memo
8.0 APPENDIX B: CHANGE AND ISSUE MANAGEMENT PROCESS
9.0 APPENDIX C: TABLE OF CONTENTS FOR WORK SEGMENT 1 DELIVERABLES
10.0 APPENDIX D: BUSINESS BACKGROUND
11.0 APPENDIX E: BASELINE REQUIREMENTS DETAIL (OO APPROACH)
11.1 Business Requirements Matrix
11.2 Preliminary Use Cases
11.3 Preliminary Business Classes
11.4 Preliminary Class Association Diagram
11.5 Preliminary List of Screens
11.6 Preliminary List of Reports
11.7 Preliminary List of Batch Server Programs (Optional)
11.8 Preliminary List of Data Entities
11.9 Preliminary List of External Interfaces (Optional)
11.10 Domain Areas
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