CONSULTING SERVICES AGREEMENT
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THIS AGREEMENT made this 21 day of November, 2000 by and between:
MICROFORUM INC.
a company amalgamated under the laws of the Province of Ontario,
having its principal business office at:
000 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx X0X 0X0
(hereinafter referred to as "MICROFORUM")
- AND -
NEWORK CORP.
a company incorporated under the laws of the Province of Alberta
having its principal business office at:
00 Xx. Xxxxx Xxx X, Xxxxx 000, Xxxxxxx, Xxxxxxx X0X 0X0
(hereinafter referred to as "CLIENT")
The parties hereto agree as follows:
1. BASIC RETAINER FOR SERVICES. This Consulting Services Agreement (the
"AGREEMENT") constitutes a basic agreement, the terms and conditions of which
shall apply to all work to be performed by Microforum until such time as a
formal Professional Services Agreement has been executed. Client agrees to
fulfil its covenants set out in Schedule "A" attached hereto. Microforum agrees
to perform the services and deliver the deliverables (collectively the "WORK")
set out in Schedule "B" attached hereto. Following the execution of this
Agreement, the parties agree to begin negotiating in good faith a formal
Professional Services Agreement and it is the parties intention that such
professional services agreement shall designate Microforum as Client's
technology vendor of choice. Client acknowledges that Microforum has begun
making arrangements to ensure that it will have a team of resources available to
commence the work under such professional services agreement.
2. LIMITATION OF LIABILITY. Except for liability for personal injury damages
caused by gross negligence or willful misconduct, and regardless of whether any
Work set forth in this Agreement fails in its essential purpose, in no event
shall Microforum's total cumulative liability to Client or its successors (from
all causes of any kind, including contract, tort, or otherwise) arising out of
or related to the transactions contemplated by this Agreement exceed the amount
actually paid by the Client to Microforum under this Agreement. Damages
recoverable by the Client or its successors are further limited to curing any
defects caused by Microforum's negligence or misconduct. Microforum shall have
no liability whatsoever for special, indirect, punitive or incidental or
consequential losses (including lost profits) of Client or any third party, even
if Microforum has been advised of the possibility of such damages.
3. CONFIDENTIALITY. During the course of delivering the Work, the parties may
have access to information that is confidential to one another ("CONFIDENTIAL
INFORMATION"), including without limitation: (i) source code, object code,
documentation, specifications, data bases, system design, file layouts, tool
combinations, development methods; (ii) information relating to the business or
financial affairs of each of the parties, which may incorporate business
methods, marketing
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strategies, pricing, competitor information, product development strategies and
methods, customer lists, financial results, personnel and research and
development; and (iii) information received from others, both written and oral,
that each party is obligated to treat as confidential.
Confidential Information shall not include any information that: (i) is already
known by the recipient party or its affiliates, free of any obligation to keep
it confidential, (ii) is or becomes publicly known through no wrongful act of
the receiving party or its affiliates, (iii) is received by the receiving party
from a third party without any restriction on confidentiality, (iv) is
independently developed by the receiving party or its affiliates, (v) is
disclosed to third parties by the disclosing party without any obligation of
confidentiality, or (vi) is approved for release by prior written authorization
of the disclosing party.
The parties agree to maintain the confidentiality of the Confidential
Information and to protect as a trade secret any portion of the other party's
Confidential Information by preventing any unauthorized copying, use,
distribution, installation or transfer of possession of such information. Each
party agrees to maintain at least the same procedures regarding Confidential
Information that it maintains with respect to its own Confidential Information.
Each party may use the Confidential Information received from the other party
only in connection with fulfilling its obligations under this Agreement or any
subsequent agreement. The parties further agree that expiration or termination
of this Agreement, for any reason, shall not relieve either party, nor minimize,
their obligations with respect to Confidential Information, as set forth herein.
Each of the parties shall return all copies of Confidential Information upon
request of the other party.
4. NON-SOLICITATION OF EMPLOYMENT. Whereas each party regards its own employees,
agents and contractors as valuable assets of the organization, it is expected
that neither party will in any way solicit for hire or for employment or
consulting services in whatever manner, either directly or indirectly, employees
of the other without written authorization from a duly authorized representative
for a period of at least one (1) year following completion of all Work under
this Agreement or any subsequent agreement. For the purposes of this section,
the term "employees" shall mean those individuals: (i) who were either employees
or independent contractors of either Microforum or Client at any time during the
period commencing on the date hereof and ending on the day all Work under this
Agreement or any subsequent agreement has been completed, and (ii) who were
directly involved in any Work provided or proposed to be provided by Microforum
to Client. The term "employees" shall not include those individuals who have
worked for a third party for more than three (3) months at any time following
their involvement in providing the Work.
5. EXPENDITURES. It is understood that Client will be responsible and shall
reimburse Microforum for all reasonable expenses incurred in providing the Work,
including but not limited to, meal allowances, travel expenses (it being
understood that all airline travel must be approved by the Client in advance)
and other incidental expenditures.
6. TAXES PAYABLE. Client acknowledges and agrees that it shall be responsible
for payment of all applicable taxes including, but not limited to, Goods and
Services Tax and applicable provincial taxes.
7. FORCE MAJEURE. Neither party shall be liable for delay or failure in
performance resulting from acts beyond the control of such party, including, but
not limited to, acts of God, acts of war, fire, flood, or other disaster, act of
government, strike, lockout, communication line or power failures, failure,
inoperability or destruction of hardware or software.
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8. DISCLOSURE. Client and Microforum acknowledge that they are both "reporting
issuers" or "registrants", as the case may be, pursuant to applicable Canadian
and U.S. securities laws and as such, may be required to disclose certain
information relating to this Agreement pursuant to press releases or otherwise.
Microforum and Client shall provide each other with a copy of any such press
release(s) in advance of its issuance, for review and approval subject to the
requirements of applicable law.
9. PROPER LAW AND AGREEMENT. This Agreement shall be governed by and construed
in accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein and shall be treated, in all respects, as an Ontario
contract.
10. INVALIDITY OF PROVISIONS. If any provision of this Agreement is declared by
a court of competent jurisdiction to be invalid, illegal or unenforceable, such
provision shall be severed from the Agreement and the other provisions shall
remain in full force and effect.
11. COUNTERPART AND FACSIMILE. This Agreement may be executed in several
counterparts and by facsimile signature, each of which so executed shall be
deemed to be an original and such counterparts when taken together shall
constitute one and the same original agreement which shall be binding on the
parties.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
MICROFORUM INC. NEWORK CORP.
Per: /S/ Per: /S/
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Name: Name:
Title: Title:
NOTE: Two (2) authorized signing officers from Microforum Inc. are required in
order for this agreement to binding.
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SCHEDULE "A"
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PAYMENT (TIME AND MATERIALS): Client agrees to pay for the Work on a time and
materials basis based on the billing rates set out below. Client agrees that
Microforum shall invoice Client for such time and materials at such times as
Microforum deems appropriate and Client agrees to pay each invoice within thirty
(30) days of receipt thereof. Client acknowledges that any documents or
statements provided by Microforum to Client setting out an estimate of the
number of hours or total cost to Client for any Work shall be an estimate only
and the Client agrees to pay for the actual time and materials expended by
Microforum based on the rates set out below. Client agrees that Microforum shall
not be required to deliver all or any part of the Work until it has received
payment in full for the Work to be provided. In the event Microforum delivers
Work prior to receiving payment in full, the parties agree that title to the
Work shall not pass to Client until the Work has been paid for in full.
The roles utilized in the scoping phase may include the following:
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ROLE BILLING RATE PER HOUR
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Project Manager - Senior Business Analyst $200
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Technical Architect $195
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Senior Developer $175
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Intermediate Developer $150
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Senior Deployment Systems Engineer $175
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Intermediate Deployment Systems Engineer $150
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Project Coordinator $125
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Copy Writer $125
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Art Director $200
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Graphic Designer $125
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o All fee's in Canadian funds
o Fees do not include applicable taxes
In the event Client pays, in the aggregate, greater than $250,000 for Microforum
products and/or services provided under this agreement or other agreements,
Microforum shall credit Client an amount equal to 5% of all such amounts paid by
Client.
In the event Client pays, in the aggregate, greater than $500,000 for Microforum
products and/or services provided under this agreement or other agreements,
Microforum shall credit Client an additional amount such that the Client has
received an aggregate credit (including the credit under the preceding
paragraph) equal to 10% of all such amounts paid by Client.
DEPOSIT: Microforum acknowledges receipt of a deposit in the amount of $15,500
CDN to be applied against Microforum's first invoice. Microforum has provided an
estimated cost of $31,000 relating to the work set out in Schedule B. Client
acknowledges that the foregoing is an estimate only and Client agrees to pay the
actual time and materials expended by Microforum based on the Schedule of rates
set out above. Once Microforum becomes aware that the actual cost will be
greater than the forgoing estimate, Microform shall communicate this information
to Client.
CLIENT RESPONSIBILITIES:
o Client acknowledges that delays in fulfilling its responsibilities
may cause project delays and affect costs.
o The Client's staff appointed to this project must be present at all
required meetings or be available by telephone and e-mail as
required.
o Documentation prepared by the client for the purpose of this project
must be available in a timely manner to avoid consequential delays
to the project.
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MAIN CLIENT CONTACT: Ovi Popescu - Director of Technology will serve as the main
client contact and will be available at the following coordinates:
Phone: (000) 000-0000 x.000
e-mail: xxx@xxxxxxxxxx.xxx
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SCHEDULE "B"
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FOLLOWING IS A DESCRIPTION OF THE WORK TO BE PERFORMED:
Under this project, Microforum will appoint a team to work with Nework Corp. to
gain a detailed understanding of the Xxxxxxx application that Microforum will be
developing for Nework Corp. This process includes a series of meetings with
Nework and Microforum. In addition, Microforum will deliver a series of
documentation related to the project.
SCOPING PHASE ACTIVITIES
o Client Meetings / Workshops - Consultative Sessions, Interviews
o Internal Meetings
o Preparation and Research (Technical and Functional)
o Documentation
DELIVERABLES
1. Vision scope
- business objectives
- assumptions
- considerations
- restraints
- list of unknowns
- risks
- critical success factors
2. Functional requirements
- feature descriptions
- interfaces
- dependencies
- integration
3. Solutions investigation - technical research - solution outline
- technical documentation/excerpts
4. Project schedule/budgeting
- approach
- stages/steps, dependencies
- resource requirements
- schedule/schedule assumptions
- detailed costs
- task list (Microforum, Nework)
5. Future Considerations
- opportunities for consideration
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ESTIMATED TIMELINE
At this stage, a timeline is difficult to define. Based upon the estimates
outlined in Microforum's proposal of 160 hours for scoping it is anticipated
that scoping will be completed within 3-5 weeks. Realistic timelines will be
identified during the scoping process.
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