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EXHIBIT 10.37
EFFECTIVE DATE: November 27, 1996
AGREEMENT #: 353
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CONTRACT FOR SERVICES AGREEMENT
THIS AGREEMENT is made and entered into as of the TWENTY-SEVENTH day of
NOVEMBER, 1996, (hereinafter "Effective Date") by and between Summa Four, Inc.,
a Delaware Corporation with its principal place of business at 00 Xxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxxxxx, 00000-0000 (hereinafter "Summa Four"), and
the Contractor whose name and address is set forth below (hereinafter
"Contractor"):
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Company: D2 TECHNOLOGIES, INCORPORATED. MR. XXXXX XXXX, PRESIDENT
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Street: 000 XXXX XXXXXXX XXXXXX, XXXXX X.
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City: SANTA XXXXXXX
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State: CALIFORNIA Zip: 93101
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RECITALS
X. Xxxxx Four is engaged in the business of developing, marketing,
supporting and selling telephony Product(s), computer Product(s) and
related accessories; and
B. Contractor is a company qualified in performing a wide variety of
technical services; and
X. Xxxxx Four desires to hire Contractor at will, to provide certain
services or products (hereinafter referred to as the "Work Product") as
shall be more fully described in an Appendix A attached to this
Agreement; and
D. Contractor is desirous of performing the Services for Summa Four as an
independent contractor pursuant to the terms hereof.
NOW THEREFORE, in consideration of the mutual promises herein contained, the
Parties agree as follows:
1. TERM OF AGREEMENT. This Agreement shall have a maximum duration of 60
working days from the above stated Effective Date. Nevertheless, this
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Agreement and the Contractor's performance hereunder may be terminated
by Summa Four at any time on written notice to Contractor. This
Agreement may only be extended by mutual written Agreement of the
Parties.
2. NATURE OF WORK. Unless otherwise directed by Summa Four, Contractor
shall provide the Work Product set forth in Appendix A.
3. PAYMENT OF CONTRACTOR. During the duration of this Agreement, payment
of the compensation is subject to Contractors' continuing satisfactory
performance in accordance with Section 4 below. Summa Four shall
compensate Contractor in accordance with the provisions of Appendix A.
4. RIGHT OF INSPECTION AND ACCEPTANCE. Contractor shall, at all times,
perform services to Summa Four in a responsible and independent manner
so as to meet the deliverable time frames of Appendix A. Furthermore,
all Services shall be of the highest professional quality and all Work
Product to be delivered hereunder shall conform to the specifications
therefore or if no specifications have been agreed to by the Parties,
be subject to Summa Four's complete satisfaction.
5. INDEMNIFICATION. Contractor hereby certifies that it has obtained all
necessary authorizations, permits and approvals and that it is fully
licensed and capable of performing the services as specified herein. As
such, Contractor shall defend at its own expense, all actions or claims
made against Summa Four, its employees, or customers, including without
limitation, all personal injury, property damage, or Product
performance claims which may arise out of or in connection with this
Agreement or Contractor's performance of the services for Summa Four
and/or delivery of the Work Product. Furthermore, Contractor is solely
responsible for and shall indemnify Summa Four against all liability,
claim, expense and/or cost in connection with its performance under
this agreement including but not limited to the payment of all federal,
state and local taxes or contributions which may be imposed on
Contractor or Summa Four including unemployment insurance, social
security and income tax levies associated with Contractor's performance
under this Agreement.
6. INDEPENDENCE OF ACTION. Nothing herein shall be deemed to restrict
Summa Four's right to perform the Work Product for itself or develop
similar or like Work Product(s) or to retain other contractors or third
parties to provide Similar Services and/or Work Product upon such terms
and conditions as it deems appropriate.
7. TERMINATION OF AGREEMENT. This Agreement may be terminated at any time,
for any reason, by Summa Four, except that in the event of any
termination of
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this Agreement for the convenience of Summa Four and not for cause or
other matters attributable to Contractor, Summa Four shall give 30
days' prior written notice of termination. Upon any such termination,
Contractor shall promptly deliver to Summa Four any and all Work
Product (including but not limited to any other materials, products,
supplies and/or Confidential Information of or to be returned to Summa
Four hereunder) completed as of the date of such termination. To the
extent that any payment(s) are due therefor, such payment(s) shall be
made in accordance with Articles 3, 4 and Appendix A hereof.
8. CONTRACTOR'S SERVICES FOR OTHERS. It is agreed that since Contractor,
during the term of this Agreement, and any renewals hereof, will
acquire or have access to Summa Four Confidential Information as
hereinafter defined, Contractor agrees not to provide for a period of
one year after the termination of this Agreement similar Services to
competitors of Summa Four without Summa Four's prior written approval,
which shall not be unreasonably withheld.
9. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. The term "Confidential
Information," unless otherwise indicated, shall mean all information in
tangible and/or intangible form disclosed to Contractor or learned by
Contractor as a direct or indirect consequence of or through their
relationship with Summa Four.
Accordingly, Contractor agrees to be independently bound by Summa
Four's current Non-Disclosure Agreement which it has executed in
conjunction with this Agreement.
10. REMEDIES. Summa Four reserves all right and remedies it may have in law
or equity to enforce performance of this Agreement.
11. PROPRIETARY RIGHTS IN DATA AND DOCUMENTS. The Parties hereto mutually
agree that all title to and ownership of the Work Product as well as
any related proprietary rights, including but not limited to those
relating to patents, copyrights, trademarks, or trade secrets in any
Work Product provided by Contractor to Summa Four in accordance with
this Agreement shall belong exclusively to Summa Four, EXCEPT CODE
DERIVED FROM SOURCE CODE PROTECTED BY TEXAS INSTRUMENTS LICENSES. CODE
DERIVED FROM THIS LICENSED CODE SHALL BE PROVIDED UNDER A SOURCE-CODE
LICENSE FROM D2, AND PER TEXAS INSTRUMENTS LICENSE AGREEMENTS, SHALL
NOT BE PORTED TO NON-TEXAS INSTRUMENTS DSPS. Contractor agrees that its
performance of this Agreement and the resultant Work Product constitute
a work for hire relationship. Contractor shall protect, on behalf of
Summa Four, all materials and written documents provided to it by Summa
Four and/or which may have been independently generated by
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Contractor under this Agreement. Contractor agrees that upon
termination or expiration of this Agreement for any reason whatsoever,
Contractor shall promptly deliver to Summa Four all materials and
written documents, as well as all "Confidential Information," which
Contractor has used, developed, maintained or had access to throughout
this Agreement.
12. INDEMNIFICATION FOR PATENT AND PROPRIETARY RIGHT CLAIMS.
Contractor warrants to Summa Four that the Work Product provided by
Contractor will not infringe upon or violate any patent, copyright,
trade secret or any other proprietary or intellectual property right of
any third party. In the event of a claim by a third party against Summa
Four, or against any of its employees or customers, asserting or
involving a patent, copyright, trade secret or proprietary or
intellectual proprietary right violation which concerns the Work
Product, or any related work tangible or intangible Work Product
developed by Contractor for Summa Four, Contractor will defend at its
sole expense and will indemnify and hold harmless Summa Four, its
employees and its customers against any loss, costs, expense or
liability arising out of such claim, whether or not such claim is
successful.
13. ASSIGNMENT. Contractor may not assign its obligations or
responsibilities under this Agreement without the written consent of
Summa Four.
14. AGENCY. This Agreement does not appoint the Contractor as the agent or
legal representative of Summa Four for any purpose whatsoever. The
Contractor has no authority, expressed or implied, to assume or create
any obligation or responsibility on behalf of, or in the name of, Summa
Four, or to bind or represent Summa Four in any manner whatsoever.
Unless specifically provided for otherwise in this Agreement, the
Contractor shall be solely responsible for its actions and any and all
obligations for liabilities incurred or assumed in the performance of
this Agreement.
THE CONTRACTOR ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND
UNDERSTANDS AND AGREES TO BE BOUND BY THIS AGREEMENT'S TERMS AND
CONDITIONS. THE CONTRACTOR FURTHER AGREES THAT THIS AGREEMENT TOGETHER
WITH ITS ATTACHED APPENDIX IS THE COMPLETE AND EXCLUSIVE STATEMENT OF
THE UNDERSTANDING OF THE PARTIES REGARDING THIS MATTER AND THAT THIS
AGREEMENT SUPERSEDES AND CANCELS ALL PREVIOUS AND CONTEMPORANEOUS
WRITTEN AND ORAL AGREEMENTS AND COMMUNICATIONS RELATING TO THE SUBJECT
MATTER OF THIS AGREEMENT. THIS AGREEMENT MAY ONLY BE MODIFIED IN
WRITING, SIGNED BY AN AUTHORIZED REPRESENTATIVE OF BOTH PARTIES.
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The validity, construction and interpretation of this Agreement and the rights
and duties of the parties hereto shall be governed by and construed in
accordance with the laws of the State of New Hampshire.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
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CONTRACTOR SUMMA FOUR, INC.
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AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
/s/ XXXXX X. XXXX /s/ XXXXXXX XXXXX-XXXX
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NAME (PRINT OR TYPE) NAME (PRINT OR TYPE)
XXXXX X. XXXX XXXXXXX XXXXX-XXXX
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TITLE TITLE
PRESIDENT VICE PRESIDENT
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DATE DECEMBER 9, 1996 DATE
NOVEMBER 27, 1996
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AGREEMENT #: ___________________
APPENDIX A
TO
CONTRACT FOR SERVICES AGREEMENT
D2 shall develop HDLC drivers for the TI TMS320C548.
These drivers will be used to communicate with the SPC card (the Motorola
MPC860). Summa Four and D2 will jointly define the protocol to meet the present
and future needs of the SPC/SRM products, while maximizing the efficiency of the
interface.
The 860 will communicate with each of the 32 TI 548's through
time-division-multiplexing on the buffered serial port. The 548's do no need to
directly communicate with each other. D2 is responsible for the code on the
548's. Summa Four is responsible for the code on the 860.
Summa Four is responsible for creating an interface document that documents the
860 to 548 interface. D2 will provide technical assistance in developing this
interface document.
Integration of the two pieces will be done by Summa Four in NH. D2 will provide
technical support for this effort.
D2 will do the following:
1. Provide a Schedule, Management POC, and Technical POC.
2. Develop a driver for the HDLC protocol (548), in C or 548
Assembly Language, using mutually agreed-upon tools.
3. Test the driver to confirm that the HDLC is functioning
correctly.
4. Measure the performance of the driver (MIPS impact on 548) on
the DSP Research Tiger board, which will be loaned to D2 by
Summa Four.
5. Conform to the Summa Four software development process,
including:
- Develop a Functional and a Detailed Design
Specification.
- Hold code reviews, with Summa Four
participation.
- Provide well-documented code.
- Efficient use of architecture.
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6. Deliverables:
- Weekly status report (email)
- Source code
- Compilation instructions (makefiles, flags,
etc.)
- Functional and Detail Design Specifications
- Test descriptions/results and performance
measurements
The charge for this effort shall not exceed $16K, corresponding to 4 staff weeks
at $4k per staff week.
Terms:
1. Accrued on a per-hour basis, not to exceed $16K
2. Billed Monthly.
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