EXHIBIT 10.6
SERVICE AGREEMENT
This Service Agreement (the "Agreement"), effective this ___th day of
October, 2000 ("Effective Date"), between RETRIEVAL DYNAMICS CORPORATION. with
its principal place of business at 1819 Main Street, Suite 600, Sarasota,
Florida 34236 MO 64111 ("Client") and Phone Online, Inc., a Tennessee
corporation, with a place of business at 618 S. Gay Street, Suite 200,
Knoxville, TN 37902 ("Consultant"), sets forth the terms and conditions under
which Consultant will provide services to Client.
In consideration of the mutual promises contained herein, Client and
Consultant agree as follows:
1. Services.
1.1 Consultant agrees to provide services (the "Services") to Client
for projects that Client and Consultant mutually agree upon (the "Project" or
"Projects"). A "Work Statement" for each Project will be created substantially
in the form attached hereto as Exhibit 1. Each Work Statement, when executed by
an authorized representative of both parties, shall constitute a separate
agreement. Each Work Statement shall incorporate all provisions herein, except
for those provisions, which are specifically excluded or modified in the Work
Statement. The terms and conditions of any Work Statement will govern in the
event of any conflict between this Agreement and the Work Statement.
1.2 In the event the fees for any Project are fixed, the additional
terms and conditions set forth in Appendix A hereto will apply and if Services
are being provided on a time and materials basis, the additional terms and
provisions set forth in Appendix B will apply. In the event any Project includes
software development, implementation and/or integration services, the additional
terms and conditions included in Appendix C will apply. In the event any Project
includes application hosting by the Consultant, the additional terms and
conditions included in Appendix D will apply. In the event fees for any project
include revenue sharing between the Client and the Consultant, the additional
terms and conditions included in Appendix E will apply. The terms and conditions
of applicable Appendices will govern in the event of any conflict between this
Agreement and the applicable Appendices.
1.3 Each Work Statement shall, to the extent applicable, contain: (i) a
description of the Project and the Services to be performed; (ii) the tasks to
be completed by Client and any third parties; (iii) a description of the
deliverables to be produced; (iv) the schedule for completion of each
deliverable or stage of a Project; (v) the fees to be paid to Consultant for
such Services and a payment schedule for fixed-price Projects, and (vi) other
provisions mutually agreed upon by the Client and Consultant.
1.4 During any Project, Client may request in writing changes to the
Services. Consultant shall incorporate any such changes provided that the
parties execute a change order setting forth the amended scope of work, program
specifications, delivery dates and the impact on the compensation to be paid to
Consultant. If the parties are unable to agree on a change order, then the
parties agree to complete the Project according to the original Statement of
Work.
2. Term. The term of this Agreement is the later of forty-eight months from the
Effective Date or through the conclusion of Services under any then-current Work
Statement or Appendices (the "Initial Term"), unless earlier terminated by
either party as provided herein. After the Initial Term expires, this
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Agreement will renew automatically for additional one-year periods (each, a
"Renewal Period") unless earlier terminated by either party upon written notice
at least 90 days prior to the start of the next Renewal Period.
3. Payment.
3.1 Client will pay Consultant the fees set forth in the Work Statement
for Services performed. If invoicing and payment are tied to milestone payments,
a payment schedule shall be included in the Work Statement. If invoicing and
payment are not tied to milestone payments, Consultant will invoice Client
monthly at the rates set forth in the Work Statement. All invoices are payable
within 30 days of receipt. Unless otherwise provided in the Work Statement or
Appendices, fees do not include the cost of third party computer hardware,
software and other materials mutually agreed by the parties to be purchased
specifically for the Project covered by the applicable Work Statement, which
shall be paid by Client. All amounts paid by Client to Consultant prior to the
execution of this Agreement, which relate to any Project covered by this
Agreement shall be credited and deducted from the amounts set forth on the
related Work Statement. A monthly late fee of 0.5% will be assessed on past due
balances.
3.2 Unless specified otherwise in the Work Statement and with prior
written authorization (e- mail or fax authorization) of Client, Client shall
reimburse Consultant for reasonable out-of-pocket expenses, incurred by
Consultant and its personnel in connection with its performance of Services,
including the cost of sharing resources among Consultant's offices and travel to
Client's location for training and installation. Consultant will provide Client
with reasonably detailed invoices for such expenses on a monthly basis and
Client agrees to pay the total amount shown as due on each invoice within 30
days after receipt thereof.
4. Cooperation and Access. Client agrees to cooperate, as set forth in each Work
Statement, with Consultant to the extent necessary for Consultant to perform its
Services. In addition to the activities listed on each Work Statement, Client
cooperation shall include, but not be limited to, providing Consultant with all
necessary equipment, material, information, assistance and access to, and use
of, Client's premises, computers and equipment during normal business hours.
Client shall also provide Consultant with access to Client's personnel during
normal business hours, including, but not limited to, the persons listed on each
Work Statement. Consultant agrees to comply at all times with the Client's
applicable rules and regulations regarding safety, security, use and conduct
provided Consultant has notice.
5. Confidentiality.
5.1 As used in this Agreement, "Confidential Information" shall mean
all confidential, proprietary or secret information, including components,
parts, drawings, data sketches, plans, programs, specifications, techniques,
processes, algorithms, inventions and other information or material, owned,
possessed or used by either Consultant or Client which is designated by such
party in writing "Confidential" or "Proprietary", to the other party. In
addition, information which is orally or visually disclosed to the other party
or which is not designated in writing as confidential, proprietary or secret at
the time of disclosure but within thirty days after such disclosure the
disclosing party delivers to the receiving party a written document describing
such Confidential Information and referencing the place and date of such
disclosure and the names of the employees of the party to whom such disclosure
was made, shall constitute Confidential Information. Notwithstanding anything
herein to the contrary, the terms of this Agreement, Consultant's
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methodologies, work approaches, tutorials, procedures, techniques, algorithms,
and processes, shall constitute Consultant Confidential Information without the
requirement of designating it as such either in writing or by use of a stamp or
legend.
5.2 Confidential Information shall not include any information that (i)
is or becomes public through no act or omission on the part of the receiving
party, (ii) is disclosed to a third party by the disclosing party without
restriction on such third party, (iii) is in the receiving party's possession at
or prior to the time of disclosure under this Agreement, (iv) is disclosed to
the receiving party by a third party having no obligation of confidentiality
with respect thereto, (v) is independently developed by the receiving party
without reference to the disclosing party's Confidential Information or (vi) is
released from confidential treatment by written consent of the disclosing party.
5.3 Consultant and Client shall hold in confidence and not disclose
(except on a confidential basis to its employees, agents, consultants or
subcontractors who need to know in connection with the Project and who are bound
by a confidentiality agreement) all Confidential Information received from the
disclosing party in the same manner it holds in confidence its own Confidential
Information of a similar nature and value, and shall not use any such
Confidential Information except for purposes contemplated by this Agreement.
5.4 Consultant and Client shall take appropriate action by instruction
or agreement with its employees, agents, consultants and subcontractors to
satisfy its obligations under this Section 5 and each shall be responsible for
any breach of this Section 5 by its employees, agents, consultants or
subcontractors.
5.5 Client agrees that the Deliverables (as defined in Section 6,
below) may be based on Consultant's Confidential Information and that the
delivery of Services and Deliverables shall not impair Consultant's right to
make, prepare, create, procure or market products or services now or in the
future.
6. Intellectual Property Rights.
6.1 The following terms shall have the meanings indicated below:
(a) "Client Materials" means materials that are created by Consultant
specifically and uniquely for Client and contained in the final work product
delivered to Client under a Work Statement, including: (i) software, software
designs, code, data and technical components (the "Client Technical Materials")
and (ii) creative designs, images, artwork and text (the "Client Artistic
Materials").
(b) "Consultant Materials" means software, routines, software designs,
user-interface conventions, interfaces to third party products, user-interface
design patterns, and other development and design tools (and all enhancements
and derivatives thereto) which Consultant (i) developed prior to the execution
of the applicable Work Statement or (ii) develops during the course of a Work
Statement but which are developed either at Consultant's cost or which are not
uniquely applicable to the particular specifications, characteristics or
functions of the Client Materials, such as generic log-in screens or elements of
code that enable the manipulation or animation of the Client Artistic Materials.
Due to the limited display capabilities of the wireless devices, the Consultant
retains ownership and right to use "core" user interface display
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techniques and navigation controls.
(c) "Deliverables" or "Application" means, collectively, the Client Materials
and the Consultant Materials.
6.2 When the Consultant has completed the final work product and the
Client has paid for the Services pursuant to the Work Statement, Consultant
agrees that, unless otherwise set forth herein or on a Work Statement, the
Client Materials shall constitute "works made for hire" for Client within the
meaning of the Copyright Act of 1976, as amended, and shall be the exclusive
property of Client. In consideration of and effective upon Consultant's receipt
of all payments required hereunder and under the applicable Work Statement, and
subject to the other terms and conditions of this Agreement, Consultant hereby
assigns to Client all intellectual property rights in the Client Materials to
Client. Upon Client's request and at the Client's expense, Consultant agrees to
execute any instruments and do all things reasonably necessary by Client in
order to further secure Client's ownership rights in the Client Materials.
6.3 Client acknowledges and agrees that Consultant retains all right,
title and interest in the Consultant Materials. In consideration of and
effective upon Consultant's receipt of all payments required hereunder and under
the applicable Work Statement and Appendices, and subject to the other terms and
conditions of this Agreement and Appendices, Consultant hereby grants to Client
a non-exclusive, non- transferable, royalty-free, perpetual license to use,
copy, operate, and process the Consultant Materials solely for use in connection
with the Client Materials. Client shall limit use of and access to the
Consultant Materials to such of Client's employees as are directly involved in
the utilization of the Deliverables throughout Client's business.
6.4 Notwithstanding anything in this Agreement to the contrary,
Consultant shall be free to use for any purpose any information in intangible
form, which may be retained by persons performing the Services such as ideas,
concepts, know-how, techniques.
7. Indemnification.
7.1 In the event any action is brought against Client based on a claim
that the Deliverables infringe any valid United States patent, copyright or
trade secret of a third party, Consultant shall indemnify, defend and hold
harmless Client and its officers, director and employees against such action at
Consultant's expense and pay all claims and expenses (including reasonable
attorneys' fees) and damages finally awarded in such action or settlement which
are attributable to such claim, provided that (i) Consultant is notified
promptly in writing of such action; (ii) Consultant shall have sole control of
the defense of any such action and all negotiations for its settlement or
compromise; and (iii) Client shall cooperate reasonably with Consultant, at
Client's expense, in the defense, settlement or compromise of any such action.
In the event that a final injunction is obtained against Client's use of the
Deliverables, or if Consultant reasonably believes that Client's use of the
Deliverables could be so enjoined, or if in Consultant's opinion any Deliverable
is likely to become the subject of a successful claim of such infringement,
Consultant shall, at its option and expense, (i) procure for Client the right to
continue using the Deliverables as provided in this Agreement, (ii) replace or
modify the Deliverables so that they become non-infringing (so long as the
functionality of the Deliverables is essentially unchanged) or, in the event
neither of the previous two options are commercially feasible for Consultant,
(iii) terminate the applicable Work Statement and the rights
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granted thereunder and refund to Client the amount paid to Consultant for the
Deliverables less an amount for depreciation determined on a straight-line
five-year depreciation basis.
7.2 Notwithstanding the foregoing, Consultant shall not have any
liability to Client under this Section 7 to the extent that any infringement or
claim thereof is based upon (i) the combination, operation or use of a
Deliverable in combination with equipment or software not supplied by Consultant
hereunder where the Deliverable would not itself be infringing, (ii) compliance
with designs, specifications or instructions provided by Client, (iii) use of a
Deliverable in an application or environment for which it was not designed or
not contemplated under this Agreement, or (iv) modifications of a Deliverable by
anyone other than Consultant where the unmodified version of the Deliverable
would not be infringing.
7.3 If notified promptly in writing, Client shall indemnify, defend and
hold harmless Consultant against any expense, judgment or loss (including
reasonable attorneys' fees) arising from (a) infringement or alleged
infringement of any valid United States patent, copyright, trademark, trade
secret or other proprietary rights as a result of Consultant's compliance with
Client's designs, specifications or instructions, (b) Client's failure to obtain
all necessary releases, licenses, permits and other authorizations to use
content included in the Deliverables, or (c) any breaches of security or delays
in data transmissions resulting from or relating to the Deliverable. Client
shall have sole control of the defense of any such action and all negotiations
for its settlement or compromise. Consultant shall cooperate reasonably with
Client, at Consultant's expense, in the defense, settlement or compromise of any
such action.
7.4 THE FOREGOING INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY
OF CONSULTANT AND THE EXCLUSIVE REMEDY OF CLIENT WITH RESPECT TO INFRINGEMENT OR
ALLEGED INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADEMARKS, TRADE SECRETS AND OTHER
INTELLECTUAL OR PROPRIETARY RIGHTS BY THE DELIVERABLES OR THEIR USE.
8. Warranties.
8.1 Consultant warrants that the Services performed under this
Agreement and all Work Statements will be performed in a professional and
workmanlike manner and has the required skills and experience to perform the
Services set forth in this Agreement.
8.2 Consultant agrees to fix any deficiencies in any Deliverable which
is a software program during the period following the Live Date for such
Deliverable (as defined on Appendix C hereto) that is set forth on the related
Work Statement (the "Warranty Period"), using the process and definitions
included on Appendix C. With respect to any Deliverable that is a software
program, Consultant shall have no obligation to make corrections, repairs or
replacements to such Deliverable which result, in whole or in part, from (i)
errors that relate solely to the third party software which forms a part of a
Deliverable, (ii) catastrophe, fault or negligence of Client, (iii) improper or
unauthorized use of the Deliverable, (iv) use of the Deliverable in a manner for
which it was not designed, including, without limitation, use of the Deliverable
in connection with computer hardware other than as specified in the related Work
Statement, (v) modifications of the Deliverable by anyone other than Consultant
or its employees or agents, or (vi) causes external to the Deliverable such as,
but not limited to, power failure or electric power surges.
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8.3 "Year 2000 Compliant" means that: (A) date data from at least 1900
through 2101 will process without error or interruption in any level of computer
software developed by Consultant, including but not limited to, microcode,
firmware, system and application programs, files, databases and computer
services; (B) there will be no loss of any functionality of the Deliverables
with respect to the introduction, processing or output of records containing
dates falling on or after January 1, 2000; (C) the design of the Deliverables
shall accommodate, at a minimum, all of the following: (1) date data century
recognition, (2) calculations which accommodate same- and multi-century formulas
and date values, (3) input/output values that reflect the century, and (4)
correct processing of leap year dates (of which the year 2000 is one); (D)
Deliverables delivered by Consultant will perform all date-related operations
accurately without human intervention, other than date data entry that is part
of the normal functions of the Deliverables; and (E) the Deliverables will
respond to two-digit date input in a way that resolves any ambiguity as to
century in a disclosed, defined and predetermined manner. In the event the
Deliverables include the delivery of software or code by Consultant, Consultant
further warrants that such Deliverables will be Year 2000 Compliant provided
that (i) all products (for example, hardware, software and firmware) used with
the Deliverables properly exchange accurate date data with the Deliverables and
are Year 2000 Compliant, (ii) all development tools used by Consultant are Year
2000 Compliant, (iii) the Deliverables are used in accordance with their
associated documentation, and (iv) Client has installed and is using the most
current version (including without limitation any fixes, patches, interim
releases and updates) of the Deliverables at the time noncompliance with the
warranty is reported. Consultant makes no warranties or representations with
respect to software or documentation furnished by any third party.
8.4 UNLESS OTHERWISE INCLUDED IN A WORK STATEMENT, THE FOREGOING
WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION, THOSE CONCERNING MERCHANTABILITY, TITLE OR FITNESS FOR A
PARTICULAR PURPOSE AND NO REPRESENTATION OR STATEMENT NOT EXPRESSLY CONTAINED IN
THIS AGREEMENT AND ANY WORK STATEMENT WILL BE BINDING ON CONSULTANT AS A
WARRANTY. IN THE CASE OF BREACH OF THE FOREGOING WARRANTIES BY CONSULTANT,
CLIENT WILL OUTLINE WITH PARTICULARITY THE DEFECTS IN THE DELIVERABLES OR
SERVICES AND CONSULTANT WILL COOPERATE WITH CLIENT AND CORRECT THE DEFECTS
WITHIN A TIME PERIOD REASONABLY ACCEPTABLE TO CLIENT.
9. Acceptance. "Acceptance" shall mean that a Deliverable substantially conforms
to the specifications and meets any other acceptance criteria set forth in the
applicable Work Statement. Any Deliverable needing acceptance from Client will
be deemed accepted if Client does not respond within ten (10) days after
delivery or any period specified in the related Work Statement, whichever is
longer, or if Client uses the deliverable for commercial purposes prior to
completing its formal acceptance procedure.
10. Limitation of Liability. IN NO CASE SHALL EITHER PARTY'S MAXIMUM LIABILITY
ARISING OUT OF THIS AGREEMENT, WHETHER BASED UPON WARRANTY, CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EXCEED IN THE AGGREGATE, FOR
CONSULTANT, THE ACTUAL PAYMENTS RECEIVED BY CONSULTANT UNDER THE WORK STATEMENT
TO WHICH THE CLAIM RELATES AND, FOR CLIENT, THE AMOUNTS REQUIRED TO BE PAID
UNDER SUCH WORK STATEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR: (i)
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT
LIMITED TO, LOSS OF PROFITS, LOSS OF OPPORTUNITIES, LOSS OF
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DATA, OR LOSS OF USE DAMAGES, ARISING OUT OF THIS AGREEMENT OR ANY WORK
STATEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, OR (ii) DAMAGES RELATING TO ANY CLAIM THAT AROSE MORE THAN ONE (1) YEAR
PRIOR TO THE INSTITUTION OF SUIT THEREON.
11. Publicity. Consultant may include Client's name and logo on its customer
lists and summarize generally the nature of any work being performed hereunder,
subject to Consultant's confidentiality obligations under Section 5. Client
shall develop marketing materials for the Deliverables and incorporate
Consultant's name and logo on such materials. Client shall market the
Deliverables on its web site and indicate that it is "powered by PhoneOnline's
BlueMoona engine."
12. Non-Solicitation. During the period of performance of Services by Consultant
hereunder and for 12 months thereafter, Client and Consultant each agree not to
solicit or induce any employee of the other to terminate his or her employment
with the other or to hire any employee of the other without the prior written
approval of the employing company.
13. Termination.
13.1 This Agreement and all rights granted thereunder may be terminated
by the non- defaulting party, effective upon delivery of written notice to the
other party (the "Defaulting Party"), in the event of a material breach by the
Defaulting Party of any of its material obligations under such Work Statement
and failure by the Defaulting Party to remedy such breach within thirty (30)
days (or ten (10) days in the event of non-payment by Client) after written
notice of such breach is provided to the Defaulting Party. In the event of such
termination, neither party shall be relieved of any of its obligations incurred
prior to such termination. Upon termination of any Work Statement pursuant to
this subsection, Client shall promptly return to Consultant (or, at Consultant's
option, destroy and certify in writing to Consultant that it has destroyed) the
original and all copies of any Deliverables including source code, archival
copies, compilations, translations, partial copies, updates and modifications,
if any, and shall delete all copies of such Deliverables.
13.2 This Agreement may be terminated, by the non-offending party,
effective immediately and without notice, in the event of (i) the dissolution,
termination of existence, liquidation or insolvency of the other party, (ii) the
appointment of a custodian or receiver for the other party, (iii) the
institution by or against the other party of any proceeding under the United
States Bankruptcy Code or any other foreign, federal or state bankruptcy,
receivership, insolvency or other similar law affecting the rights of creditors
generally, or (iv) the making by the other party of a composition of, or any
assignment or trust mortgage for the benefit of, creditors.
13.3 Sections 3, 5, 6, 7, 8, 10, 11, 12, 13 and 14 and any accrued
rights to payment and remedies for breach of this Agreement shall survive, in
accordance with their terms, the completion of Consultant's Services hereunder
and the expiration or termination of this Agreement or any Work Statement.
14. Remedies. A breach of any obligations set forth in Sections 5, 6 and 12 will
irreparably harm either party and substantially diminish the value of each
party's proprietary rights in the Deliverables or its Confidential Information.
Therefore, Client and Consultant agree that if either party breaches any of its
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obligations, the other party shall, without limiting its other rights or
remedies, be entitled to equitable relief (including, but not limited to,
injunctive relief) to enforce its rights, including without limitation
protection of its proprietary rights. The parties agree that a party need not
invoke the procedures set forth on Appendix F attached hereto in order to seek
injunctive or declaratory relief.
15. Force Majeure. In the event that either party is prevented from performing,
or is unable to perform, any of its obligations under this Agreement due to any
act of God, fire, casualty, flood, war, strike, lock out, failure of public
utilities, injunction or any act, exercise, assertion or requirement of any
governmental authority, epidemic, destruction of production facilities,
insurrection, inability to obtain labor, materials, equipment, transportation or
energy sufficient to meet needs, or any other cause beyond the reasonable
control of the party invoking this provision ("Force Majeure Event"), and if
such party has used reasonable efforts to avoid such occurrence and minimize its
duration and has given prompt written notice to the other party, then the
affected party's failure to perform shall be excused and the time for
performance shall be extended for the period of delay or inability to perform
due to such occurrence.
16. Taxes. The fees and other amounts payable pursuant to this Agreement are
exclusive of, and Client shall pay, all federal, state, local, municipal or
other sales, use, transfer, excise, property and other taxes and duties imposed
with respect to the delivery of the Services or any Deliverable and their
supplying to Client, except for taxes based on Consultant's net income. Client
shall obtain and provide to Consultant any certificate of exemption or similar
document required to exempt any transaction under this Agreement from sales tax,
use tax or other tax liability.
17. Notices. Any notice or communication required or permitted under this
Agreement or any Work Statement shall be in writing and shall be deemed received
(i) on the date personally delivered, (ii) the next day after sending if sent by
telegram, telex, telecopier, mailgram, Federal Express or any other next-day
carrier service, or (iii) the third day after mailing via first-class mail,
postage prepaid, to a party at the address specified below or such other address
as either party may from time to time designate to the other:
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To Consultant: To Client:
Phone Online, Inc. Retrieval Dynamics Corporation.
618 S. Gay Street, Suite 200 1819 Main Street, Suite 600
Knoxville, TN 37902 Sarasota, FL 34236
Attention: Bob Leo Attention: Sharon Ballgae
Dir. of Professional Servicies Chief Technology Officer
With a copy to:
Phone Online, Inc.
618 S. Gay Street, Suite 200
Knoxville, TN 37902
Attention: Patrick Conley Attention:
General Counsel
18. Disputes. Other than as provided in Section 14, any dispute or claim arising
out of or relating to this Agreement or any Work Statement shall be resolved in
accordance with the Dispute Resolution Process set forth on Appendix F.
19. Miscellaneous.
19.1 This Agreement and its Appendices and Work Statements constitute
the entire agreement between Consultant and Client with respect to the subject
matter hereof and supersede all prior agreements, promises, understandings and
negotiations, whether written or oral, regarding the subject matter hereof,
including any terms and conditions included on Client's purchase orders. This
Agreement and any Work Statement cannot be amended unless in writing and signed
by duly authorized representatives of each party.
19.2 In the event that any provision of this Agreement, Appendices or
Work Statement is held by a court of competent jurisdiction to be unenforceable,
the validity of the remaining provisions shall not be affected, and the rights
and obligations of the parties shall be construed and enforced as if the
Agreement, Appendices or such Work Statement did not contain the particular
provisions held to be unenforceable and the unenforceable provisions shall be
replaced by mutually acceptable provisions which, being valid, legal and
enforceable, come closest to the intention of the parties underlying the invalid
or unenforceable provision.
19.3 Neither this Agreement, Appendices, or any Work Statement or any
rights or licenses granted hereunder may be assigned, delegated or subcontracted
by any party without the written consent of the other party, except that (i) a
party may assign and transfer this Agreement and any Work Statement and its
rights and obligations hereunder and thereunder to any third party which
succeeds to substantially all of its business and assets or assign or transfer
any rights to receive payments hereunder, and (ii) Consultant may subcontract
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its obligations hereunder to any wholly-owned subsidiaries of Consultant or
third party service providers, provided that Consultant remains primarily liable
to Client hereunder.
19.4 This Agreement shall be interpreted and enforced in accordance
with the laws the state of Tennessee without regard to the conflict of laws
provisions thereof.
19.5 The parties are independent contractors. Nothing herein shall be
deemed to constitute either party as the representative, agent, partner or joint
venture of the other.
19.6 Each party has full power and authority to enter into and perform
this Agreement and the person signing this Agreement on behalf of each party
hereto has been properly authorized and empowered to enter into this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the day and year indicated above.
PHONE ONLINE, INC.
By: /s/ Patrick Conely
Print Name: Patrick Conely
Title: Vice Pres.
RETRIEVAL DYNAMICS CORPORATION
By: /s/ Sharon Ballgae
Print Name: Sharon Ballgae
Title: Chief Technology Officer
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APPENDICES & EXHIBITS
Appendix A - - Additional Terms and Conditions for Fixed Price Projects
Appendix B - - Additional Terms and Conditions for Time & Material Projects
Appendix C - - Additional Terms and Conditions for Software Development,
Integration or Implementation Services
Appendix D - - Additional Terms and Conditions for Hosting Services
Appendix E - - Additional Terms and Conditions for Revenue Sharing Models
Appendix F - - Dispute Resolution Process
Appendix G - - Phone Online License Agreement
Exhibit 1 - - Form of Work Statement
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APPENDIX A
Additional Terms and Conditions for Fixed Price Work Statements
1. Extensions.
1.1 Consultant agrees that the Project is to be completed in accordance
with the Work Schedule included on the applicable Work Statement. If, however, a
Project is extended due to any act by Consultant, Client will not be charged for
such extension and Consultant will absorb the cost of the resources required
during such extension and Consultant will attempt to rectify the situation that
is causing the extension as soon as possible.
1.2 In the event Consultant's performance under any Work Statement is
delayed because of any act or omission of Client or any third parties hired by
the Client to work on a Project (including, without limitation, Client's failure
to meet delivery dates of required Client assistance listed in a Work Statement,
to deliver any material to be provided by the Client when and as required, or to
perform any of its covenants or obligations thereunder, whether or not caused by
a Force Majeure Event), then for each day of extension caused by such delay,
Consultant shall be entitled to a one-day extension of the delivery dates set
forth in the Work Statement for Consultant's performance.
1.3 In addition, Client shall reimburse Consultant for any fees and
expenses incurred by Consultant as a result of such delay if the delay causes
Consultant to extend its Services past the final delivery date set forth in the
Work Statement or requires Consultant to add additional personnel to its team in
order to meet the dates set forth on the related Work Statement. If the delay,
hindrance or interference is caused by a Force Majeure Event affecting Client
then such fees will be reduced by 50%. During the then applicable Work Statement
Consultant will notify Client in writing at the time the Consultant becomes
aware that Services will be extended beyond the final delivery date or that
additional personnel will be added to the team in order to meet the date set
forth in the Work Statement due to Client which would result in increased fees
and expenses. The Consultant and Client will work together to mitigate increases
in fees and expenses.
1.4 Notwithstanding the foregoing, if Client's resources or personnel
on any Project change significantly from the design phase to the development
phase or during the development phase, and Consultant reasonably believes that
such changes will result in an increase cost to Consultant or cause Consultant
to miss a Project milestone, Consultant shall notify Client immediately and use
good faith efforts to accurately estimate its additional costs and project
timeline impact that would be caused by such change in the Client resources.
Client will notify Consultant within 10 days whether Client will proceed with
its proposed change in resources and accept the new cost and project timeline,
or will adjust its resources accordingly and continue with the original cost and
project timeline.
Service Agreement
Retrieval Dynamics Corp.
Copyright 2000, All rights reserved Phone Online, Inc.
12
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APPENDIX B
Additional Terms and Conditions for Time & Material Projects
1.Price. The fees and expenses included on this Work Statement are estimates
only. The final fees and expenses will be set forth on Consultant's final
invoice to Client. If Consultant reasonably anticipates the aggregate fees and
expenses to exceed the original estimate by more than 10%, then Consultant shall
seek the Client's approval and Consultant shall have the right to suspend work
without liability and with a day- for-day extension of any subsequent deadlines
until the Client shall have provided such approval or agreed upon a reduction in
scope of Services.
2.Records. Consultant will maintain complete and accurate records of the work
performed hereunder, the amounts invoiced and time worked. Such records will be
in accordance with standard accounting practices and will include time logs.
Client will have the right to inspect and audit Consultant's records at
Consultant's place of business during normal business hours at a mutually
acceptable time during each Project and for a period of one year thereafter.
Client agrees to give Consultant at least 30 days prior written notice of its
intent to inspect Consultant's records. Client may not exercise this inspection
right more than two times each calendar year.
Service Agreement
Retrieval Dynamics Corp.
Copyright 2000, All rights reserved Phone Online, Inc.
13
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APPENDIX C
Additional Terms and Conditions for Software Development, Implementation or
Integration Projects
Deficiency Resolution and Correction Process
During the development phase of a Project (i.e., prior to the start of the pilot
testing), problems with the Deliverable will be managed using Consultant's
Decision Design process whereby technical change requests (TCRs) identified by
either Consultant or Client will be stored in a database and monitored using a
tracker tool to manage their progress towards resolution. During the development
phase, Consultant's Project Manager and Client Project Manager will need to
review the status and priorities of each TCR and Consultant shall be responsible
for establishing priorities between TCR's consistent with the Work Schedule.
TCRs will be assigned a priority level as follows:
* Critical: The application cannot provide the core functionality unless the
TCR is resolved.
* High: A major function of the application produces the wrong result and
there is no acceptable work around.
* Medium: The application is operable and a work around exists to correct the
TCR.
* Low: The TCR does not effect the functionality of the system, only minor,
cosmetic changes are required.
"Live" or "Launch" date - The point in time when all Critical and High
TCRs have been corrected, and a plan and timetable have been agreed upon between
Consultant and Client to correct the remaining deficiencies, if any.
Service Agreement
Retrieval Dynamics Corp.
Copyright 2000, All rights reserved Phone Online, Inc.
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APPENDIX D
HOSTING
AGREEMENT
Additional Terms and Conditions for Hosting Services
Upon completion of the Project, Consultant will provide Hosting Services of the
Application for the Client. The Initial Term of the Hosting Services will be for
a period of two months from the date of Project Completion ("Initial Term"). The
Initial Term will automatically extended for additional one month terms
("Renewals") until one party provides the other party sixty days prior written
notice of termination of hosting by Consultant.
The fees for Hosting Services are as follows:
Up to 1 Mbps $ 4,750.00 per month
Bandwidth for a particular month is based on the average monthly usage for that
month. Average monthly usage will be determined by measuring bandwidth usage at
mutually agreeable predetermined times during each day of the month and
averaging that usage for the month. The Consultant will supply a bandwidth usage
report to Client with each invoice.
In the event Client exceeds 1Mbps bandwidth Consultant shall bill Client for
incremental bandwidth usage at its normal rates.
The Hosting Service fees will be prorated for any partial month of Hosting
Service. Fees shall be paid by Client net thirty days from receipt of invoice.
Included in the fees is: hosting of the QXPrint web site, middle tier software
application, wireless solution server, firewall, managed services, cabinet with
power and phone jack, BlueMoon license and support and maintenance of the
Application and BlueMoon software while Consultant is hosting. Client will be
responsible for server hardware and the following software: SQL Server 7.0, ASP
Mail 4.0, and any other software required to host the Application. Support and
maintenance of the Application provides software fixes for identified bugs
within the Application and is included in the Hosting Service fee. Support and
maintenance of BlueMoon provides software fixes for identified bugs and upgrades
to BlueMoon. With thirty-day prior written consent, the Client may visit the
Hosting Facility. Otherwise access to the Hosting Facility is restricted.
The Consultant will provide 99%+ uptime ("Uptime Guarantee") for Hosting
Services. Client will be refunded a pro-rata portion of fees for those periods
of time when uptime falls below the Uptime Guarantee. With thirty-day prior
written request, the Client may review uptime records. Such request may not be
made more than four times per year. Consultant shall maintain uptime records for
a period of twelve months after each month of Hosting Service.
Upon completion of the Initial Term and any Renewals, the Client may make
alternative arrangements for hosting of the Application. At the time Consultant
no longer provides hosting to the Client the Consultant shall license BlueMoon
to the Client pursuant to the terms of the Phone Online License Agreement
(Appendix G). The monthly price of the license shall be 60% of the last price
charged for a complete month of hosting under this Hosting Agreement.
[signature on following page]
Service Agreement
Retrieval Dynamics Corp.
Copyright 2000, All rights reserved Phone Online, Inc.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal
as of the day and year indicated above.
Phone Online, Inc.
By: /s/ Patrick Conely
Print Name: Patrick Conely
Title: Vice Pres.
Retrieval Dynamics Corp.
By: /s/ Sharon Ballgae
Print Name: Sharon Ballgae
Title: Chief Technology Officer
Service Agreement
Retrieval Dynamics Corp.
Copyright 2000, All rights reserved Phone Online, Inc.
16
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APPENDIX E
REVENUE SHARE AGREEMENT
Additional Terms
and Conditions for Revenue Sharing
Beginning on February 1, 2001 and for a period of three years thereafter (with
subsequent one-year additional renewal terms) RDC will pay Consultant, within
thirty days of the end of each month, eight percent (8%) of its gross revenues
generated. Gross revenue is defined as the total revenue billed or billable by
RDC, including transaction fees, sublicense and license fees, monthly access
fees, advertising revenue, and any other revenue earned by RDC from and through
the Application. Gross revenue does not include revenue from transactions that
access the Client Materials without use of the Application. RDC will provide
Consultant with an accounting for each month by the 5th business day of the
following month that will include the number of RDC customers, number of each
type of transaction, the amount charged for each transaction, total amount
billed per customer, amount and type of non-transactional revenue and total
gross revenue. Example: RDC has 1,000 customers with 100 transactions each at a
transaction fee of $0.50 each. Additionally, RDC has earned $50,000 in gross
advertising revenue and $20,000 in other revenue for the month from the
Application. The amount due to POL for that month would be $9,600.00
((1,000*100*$.50 = $50,000 + $50,000 + $20,000 = $120,000 * 0.08 = $9,600.00).
With thirty-day prior written request, the Consultant may review Client's
business records to determine that the proper Revenue Share Fee has been paid.
Such requests may not be made more than four times per year. Client shall
maintain such records for a period of twelve months after each Current Month.
The initial term of the Revenue Share Agreement shall be for a period of
thirty-six months commencing on January 1, 2001 and expiring December 31, 2003
("Initial Term"). By mutual written Agreement, the Revenue Share Agreement may
be extended for additional twelve-month periods ("Renewals").
During the Initial Term and any Renewals the Consultant will provide support to
the Client's Application in the form of fixes to identified bugs and Application
modifications that fall within the initial Work Statement. Consultant will also
develop one additional application at no additional charge for one non- browser
based device mutually agreed upon by Client and Consultant ("Additional
Application") in a time frame that is mutually agreed upon by both parties.
At the end of the Initial Term and any Renewal in consideration of and effective
upon Consultant's receipt of all payments required hereunder and under any Work
Statement, and subject to the other terms and conditions of this Agreement,
Consultant hereby grants to Client a non-exclusive, non-transferable, royalty-
free, perpetual license to use, copy, operate, and process the Consultant
Materials solely for use in connection with the Client Materials. Client shall
limit use of and access to the Consultant Materials to such of Client's
employees as are directly involved in the utilization of the Application
throughout Client's business. Continued ongoing support and maintenance of the
Application will be negotiated at that time. A separate license, support and
maintenance for BlueMoon [TM] will be negotiated at the end of the Initial Term
and any Renewal.
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Copyright 2000, All rights reserved Phone Online, Inc.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal
as of the day and year indicated above.
Phone Online, Inc.
By: /s/ Patrick Conely
Print Name: Patrick Conely
Title: Vice Pres.
Retrieval Dynamics Corp.
By: /s/ Sharon Ballgae
Print Name: Sharon Ballgae
Title: Chief Technology Officer
Service Agreement
Retrieval Dynamics Corp.
Copyright 2000, All rights reserved Phone Online, Inc.
18
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APPENDIX F
Dispute Resolution Process
The following procedures shall be used to resolve any disputes, claims
or controversies ("disputes") between us as provided herein. If any of these
provisions are determined to be invalid or unenforceable, the remaining
provisions shall remain in effect and binding on the parties to the fullest
extent permitted by law.
1. Discussion; Management. The parties shall first employ the full resources of
the Executive Committee to resolve all disputes expeditiously and informally.
The Executive Committee shall be composed of the following representatives of
the Client and Consultant:
Consultant: Bob Leo, Director of Professional Services
Client: Sharon Ballgae, CTO
In the event that such dispute cannot be resolved by the Executive Committee,
the parties shall each involve an independent executive officer of the
respective parties, each of whom shall review and discuss the dispute between
them and attempt to resolve it by agreement. If such dispute cannot be resolved
by the foregoing method within a reasonable period of time, the parties shall
resort to the mediation procedure set forth below.
2. Mediation
2.1 Either party may submit a dispute to mediation by providing written
notice to the other party. In the mediation process, the parties will try to
resolve their differences voluntarily with the aid of an impartial mediator, who
shall attempt to facilitate negotiations. The mediator shall be selected by
agreement of the parties. If the parties cannot otherwise agree on a mediator, a
mediator shall be designated by the American Arbitration Association or any
successor organization ("AAA") at the request of a party. Any mediator so
designated must be acceptable to all parties.
2.2 The mediation shall be conducted as specified by the mediator and
agreed upon by the parties. The parties agree to discuss their differences in
good faith and to attempt, with the assistance of the mediator, to reach an
amicable resolution of the dispute.
2.3 The mediation shall be treated as a settlement discussion and
therefore shall be confidential. The mediator may not testify for either party
in any later proceeding relating to the dispute. No recording or transcript
shall be made of the mediation proceedings.
2.4 Each party shall bear its own costs in the mediation. The fees
and expenses of the mediator shall be shared equally by the parties.
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3. Arbitration.
3.1 If a dispute has not been resolved within 30 days after the written
notice beginning the mediation process (or a longer period, if the parties agree
to extend the mediation), the mediation shall terminate and the dispute shall be
settled by arbitration. The arbitration shall be conducted in accordance with
the Commercial Rules of the AAA ("AAA Rules"). In the event of a conflict, the
provisions of this Appendix F shall control.
3.2 The arbitration shall be conducted before a single arbitrator,
regardless of the size of the dispute, to be selected as provided in the AAA
Rules. Any issue concerning the extent to which any dispute is subject to
arbitration, or concerning the applicability, interpretation, or enforceability
of these procedures, including any contention that all or part of these
procedures are invalid or unenforceable, shall be governed by the Federal
Arbitration Act and resolved by the arbitrator. No potential arbitrator may
serve unless he or she has agreed in writing to abide and be bound by these
procedures.
3.3 Unless provided otherwise herein, the arbitrator may not award
non-monetary or equitable relief of any sort. They shall have no power to award
(a) damages inconsistent with this Agreement or (b) punitive damages or any
other damages not measured by the prevailing party's actual damages, and the
parties expressly waive their right to obtain such damages in arbitration or in
any other forum. In no event, even if any other portion of these provisions is
held to be invalid or unenforceable, shall the arbitrator have power to make an
award or impose a remedy that could not be made or imposed by a court deciding
the matter in the same jurisdiction.
3.4 No discovery shall be permitted in connection with the arbitration
unless it is expressly authorized by the arbitrator upon a showing of
substantial need by the party seeking discovery.
3.5 All aspects of the arbitration shall be treated as confidential.
Neither the parties nor the arbitrator may disclose the existence, content or
results of the arbitration, except as necessary to comply with legal or
regulatory requirements. Before making any such disclosure, a party shall give
written notice to all other parties and shall afford such parties a reasonable
opportunity to protect their interests.
3.6 The result of the arbitration shall bind the parties, and judgment
on the arbitrator's award may be entered in any court having jurisdiction. Each
party shall bear its own costs of the arbitration. The fees and expenses of the
arbitrator shall be shared equally by the parties.
Service Agreement
Retrieval Dynamics Corp.
Copyright 2000, All rights reserved Phone Online, Inc.
20
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APPENDIX G
Phone
Online License Agreement
1. Phone Online, Inc. ("Consultant") grants Retrieval Dynamics Corp. ("Client")
and Client accepts from Consultant a non-exclusive, non-transferable,
limited-use license to use and operate the Consultant software products listed
on Attachment 1 ("Licensed Programs") solely on the Computers of Company located
at the site set forth on Attachment 1 ("Client Site") solely to:
a. Operate the application developed by Consultant for Client
("Application"); and
b. Demonstrate to potential customers the use of the Licensed Programs
with the Client's Application.
2. Without the prior written consent of Consultant, Client shall not:
o Copy in whole or in part the Licensed Programs, except for normal
back-up and archive purposes;
o Modify, reverse compile, reverse engineer or reverse assemble all or
any portion of the Licensed Programs;
o Distribute, market rent, lease, transfer, assign, or sublicense the
Licensed Programs to third parties or use the Licensed Programs for
the benefit of third parties, except to the extent necessary to
operate the Application in the ordinary course of its business;
o Export the Licensed Programs in violation of United States laws and
regulations or other applicable laws or regulations;
o Perform, publish or release benchmarks or other comparisons without
Consultant's prior written consent;
o Use the Licensed Programs for any development activities or any
purpose other than as agreed to in this Agreement; or
o Use the Licensed Programs to develop nor shall Company market any
conversion utility or aid specific to the Licensed Programs enabling
users to convert from the Licensed Programs to an alternative product.
3. Consultant shall provide upgrades, enhancements, new releases, an new
versions to the Licensed Programs as they become generally available and
maintenance for the Licensed Programs and for Client's Application. Increases or
changes in functionality to the Client's Application are not included in this
Agreement.
4. Consultant shall retain all title, copyright, patent, trademark, trade secret
and other intellectual property rights in or relating to the Licensed Programs,
and any related copies, partial copies, compilations, modifications, derivative
works or translations thereto. Client and its employees shall keep the Licensed
Programs strictly confidential and shall not disclose, permit access or
otherwise distribute the Licensed Programs to anyone except its authorized
employees. All rights not expressly granted in this Agreement are reserved by
Consultant.
5. This Agreement shall remain in effect for one year from the date hereof and
shall be renewed automatically thereafter for one year terms until terminated by
either party upon written notice given not less than thirty days prior to the
end of the original term or any renewed term. Upon termination or expiration,
Client shall cease use of all copies of the Licensed Products, return the
original and all copies of the Licensed Products to Consultant and certify to
Consultant in writing that all copies have been destroyed and deleted
Service Agreement
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Copyright 2000, All rights reserved Phone Online, Inc.
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<PAGE>
from any computer libraries or storage devices and are no longer used by Client.
6. The Client shall pay the Consultant an annual license fee that is determined
as follows: 60% of the last full month hosting fee charged under Appendix D
multiplied by twelve. The annual license fee shall be paid at the beginning of
the initial term and at the beginning of any subsequent renewal terms.
7. The Licensed Programs are provided "AS IS" without warranty of any kind.
Consultant disclaims all warranties, express or implied, including but not
limited to, the warranties of merchantability and fitness for a particular
purpose. In no event will Consultant be liable to Client or other party for any
loss or indirect, or incidental, or consequential loss or damage which may arise
from the use, operation, or modification of the Licensed Products.
8. Client may not assign or transfer its rights or delegate its duties under
this Agreement. Any prohibited assignment shall be null and void.
PHONE ONLINE, INC. RETRIEVAL DYNAMICS CORP.
By: /s/ Patrick Conely By: /s/ Sharon Ballgae
Print Name: Patrick Conely Print Name: Sharon Ballgae
Title: Vice Pres. Title: Chief Technology Officer
Service Agreement
Retrieval Dynamics Corp.
Copyright 2000, All rights reserved Phone Online, Inc.
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ATTACHMENT 1
Client Name and Address:
Client Site:
Client Contact:
Telephone Number:
Licensed Product Release Media Operating Serial CPU Model
Program Code Number Type System Number
---------- -------- ------- ------ --------- ------- ---------
BlueMoon
---------- -------- ------- ------ --------- ------- ---------
Service Agreement
Retrieval Dynamics Corp.
Copyright 2000, All rights reserved Phone Online, Inc.
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Exhibit 1
Form of Work Statement
This Work Statement No. ___ is entered into as of this ___ day of _________,
2000 by and between _______________ ("Client") and Phone Online, Inc.
("Consultant") and is deemed to be incorporated into that certain Service
Agreement dated as of ____________, 2000 by and between Client and Consultant
(the "Agreement'). Any terms used herein but not defined shall have the meaning
ascribed to such term in the Agreement.
1. Name and Description of Project:
2. Description of Deliverables
3. List of Assumptions
This section defines the assumptions under which Consultant has based
its fees for the services being performed under this Work Statement. Any
deviation from these assumptions, similar to any deviation in scope of the
Project, that effects the delivery date for the Deliverables or requires
Consultant to incur additional expenses in order to deliver the Deliverables on
the delivery date may be predicated upon an extension of the Project and a
change in the fees and/or timeline by Consultant pursuant to Section 1.4 on
Appendix A of the Agreement.
4. Documentation to be Produced by Consultant
Consultant will provide all technical documentation of code to be
delivered to Client following the Live date for the _____________(name of
software/deliverable) by Client.
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Copyright 2000, All rights reserved Phone Online, Inc.
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5. Key Personnel Assigned for Each Party
Consultant:
Client:
6. Project Schedule
7. Tasks To Be Completed By Client
8. Warranty Period, if any.
9. Payment Schedule (include if fixed price)
The contract price for the Services to be performed by Consultant under this
Work Statement No. ___ is $_______________, which shall be paid on the following
schedule:
Milestone Amount Invoice
Date
------------------------- ---------------- -----------------
------------------------- ---------------- -----------------
------------------------- ---------------- -----------------
------------------------- ---------------- -----------------
------------------------- ---------------- -----------------
ALTERNATIVE 9. Time and Material Rates (include names and rates)
All payments shall be sent to Consultant's address at:
Phone Online, Inc.
618 S. Gay St., Suite 200
Knoxville, TN 37902
Service Agreement
Retrieval Dynamics Corp.
Copyright 2000, All rights reserved Phone Online, Inc.
25
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal
as of the day and year indicated above.
Phone Online, Inc.
By: /s/ Patrick Conely
Print Name: Patrick Conely
Title: Vice Pres.
Retrieval Dynamics Corp.
By: /s/ Sharon Ballgae
Print Name: Sharon Ballgae
Title: Chief Technology Officer
Service Agreement
Retrieval Dynamics Corp.
Copyright 2000, All rights reserved Phone Online, Inc.
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<PAGE>
Work Statement Number 1
This Work Statement No. 1 is entered into as of this ___th day of October 2000
by and between Retrieval Dynamics Corp. ("Client") and Phone Online, Inc.
("Consultant") and is deemed to be incorporated into that certain Service
Agreement dated as of October ___, 2000 by and between Client and Consultant
(the "Agreement'). Any terms used herein but not defined shall have the meaning
ascribed to such term in the Agreement.
1. Name and Description of Project:
QXPrint 1.0 Wireless Application
QXPrint 1.0 is a complete end-to-end system that will provide the Client's users
with the ability to deliver documents to potential clients and business contacts
via selected delivery mechanisms. The methods initially selected for QXPrint 1.0
include email, fax, and print on demand (POD). Documents may be static in nature
or merged with client specific data in order to provide a more personalized
delivery mechanism. The Consultant will be responsible for development of the
wireless interface component of the Application, the Middle Tier (MT)
development, which provides core functionality for the Application, and for
hosting the entire Application.
2. Description of Deliverables
The Consultant will develop the wireless component containing the following
Application functionality:
* User specific functionality
* Login
* Contact Management (Add Contact / Edit Contact)
* Review Personal Document List * Document Publishing/Delivery
* Selection of multiple documents for delivery
* Selection of multiple recipients for delivery
* Selection of delivery mechanism including:
o Email
o Fax
o POD Facility
* Cancellation of a pending transaction
The Consultant will develop the Middle Tier that provides the following core
Application functionality available for use by wireless and web components:
* Email notice to user for confirmation of transaction.
* Transaction processing for document delivery
o User initiated interaction components for transaction processing
include:
* Selection of one or more documents for delivery
* Selection of one or more recipients
* Selection of delivery type
* Transaction initiation
o Components that are not user initiated include:
* Merging each selected template with one or more contacts
* Sending a static document
* Error handling
* Delivery of confirmation email to user
Service Agreement
Retrieval Dynamics Corp.
Copyright 2000, All rights reserved Phone Online, Inc.
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The Consultant will prepare a document package focused on application
architecture, user interface, and user instructions as well as trouble shooting
methods for application operation problems.
The Consultant will provide two days of training at a location specified by
Client. Client shall pay for travel expenses of Consultant associated with
training.
The Client will purchase the following software. The Consultant will perform
installation and configuration.
* SQL Server 7.0
* ASPMail 4.0
The Client will purchase the following hardware. The Consultant will configure
server and install all necessary software.
* Appropriate hardware based on usage, growth, and vendor preference
* Win2K Advanced Server Pre-installed
The Consultant will handle all setup and configuration of hosting site.
3. List of Assumptions
This section defines the assumptions under which Consultant has based
its fees for the services being performed under this Work Statement. Any
deviation from these assumptions, similar to any deviation in scope of the
Project, that effects the delivery date for the Deliverables or requires
Consultant to incur additional expenses in order to deliver the Deliverables on
the delivery date may be predicated upon an extension of the Project and a
change in the fees and/or timeline by Consultant pursuant to Section 1.4 on
Appendix A of the Agreement.
* Client will provide necessary resources to support Consultant
* Client will make technical resources available and provide accepted
mechanism for requesting Print on Demand action.
* The total functionality requirements of the middle tier to be determined in
workshop to be conducted by Consultant. Client will make resources and
requirements available for the workshop.
* Client will provide hardware and software delivered to hosting location
identified by Consultant
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4. Key Personnel Assigned for Each Party
Consultant:
Bob Leo Business Director
Jeff Given Project Manager
Benji Harrell System Architect
Joe Hitt Consultant
Noella Wong Consultant
Client:
Sharron Ballgae CTO
David Rippetoe Director of Business Technology
Other:
James Willaimson MethodFactory Representative
Mike Brady MethodFactory Technical Representative
5. Project Schedule
The project schedule will be finalized during the Workshop. It will
include sufficient development and testing periods for the QXPrint product to be
available in a production environment by January 19, 2001.
6. Tasks To Be Completed By Client
Additional tasks to be determined by Client and Consultant
7. Warranty Period, if any.
8. Payment Schedule (include if fixed price)
The contract price for the Services to be performed by Consultant under this
Work Statement No. 1 is $98,000.00, which shall be paid on the following
schedule:
Milestone Amount Invoice
Date
Execution of Letter of Intent $49,000.00 10/13/00
Start of Testing of Application (on or $49,000.00
before, 2000) subject to Section 9.1
below.
-------------------------------------- ------------ ---------
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9. Following is a list of third party hardware and software that will be paid
for by Client:
The Client will purchase the following software. The Consultant will perform
installation and configuration.
* SQL Server 7.0
* ASPMail 4.0
* Other software as needed, subject to prior approval of Client. The
Client will purchase the following hardware. The Consultant will
configure server and install all necessary software.
* Appropriate hardware based on usage, growth, and vendor preference
* Win2K Advanced Server Pre-installed
ALTERNATIVE 9. Time and Material Rates (include names and rates)
All payments shall be sent to Consultant's address at:
Phone Online, Inc.
Attn. Controller
618 S. Gay St., Suite 200
Knoxville, TN 37902
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal
as of the day and year indicated above.
Phone Online, Inc.
By: /s/ Patrick Conely
Print Name: Patrick Conely
Title: Vice Pres.
Retrieval Dynamics Corp.
By: /s/ Sharon Ballgae
Print Name: Sharon Ballgae
Title: Chief Technology Officer
Service Agreement
Retrieval Dynamics Corp.
Copyright 2000, All rights reserved Phone Online, Inc.
30
