COMPUWARE CORPORATION
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SUBCONTRACTOR AGREEMENT
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Compuware Corporation, a Michigan corporation, located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("COMPUWARE") and Alydaar Software
Corporation, a North Carolina corporation, located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("ALYDAAR"), desire to enter into an agreement for
the performance by ALYDAAR of professional services, as set forth in this
Agreement. In consideration of the promises and of the mutual covenants in this
Agreement, COMPUWARE and ALYDAAR agree as follows:
1. TERM
This Agreement shall commence on October 1, 1997 ("Effective Date") and
shall continue in full force and effect through December 31, 1998. This
Agreement will automatically renew for one year, unless written notice
of termination is given by either party by November 30, 1998.
Notwithstanding termination of this Agreement, the parties agree that
the obligations under a mutually executed Service Order shall survive
the termination of this Agreement and each party shall perform its
obligations in accordance with the terms and conditions of such Service
Order.
2. SERVICES
a) COMPUWARE engages ALYDAAR and ALYDAAR agrees to perform, as a
subcontractor to COMPUWARE, certain Year 2000 remediation services for
COMPUWARE clients ("Services"), as further set forth in Section 3. herein
and in Exhibit A. The Services described in Exhibit A, which is attached
and incorporated into this Agreement by reference, shall be performed by
ALYDAAR as requested by COMPUWARE. COMPUWARE may assign a project
manager, to be located at ALYDAAR's facility, to supervise each Services
project. When COMPUWARE and a Compuware client have entered into a
Production 2000 Professional Services Agreement ("Y2K Agreement") for
which Alydaar Services are subcontracted, COMPUWARE and ALYDAAR shall
enter into a Service Order prior to ALYDAAR's provision of ALYDAAR
Services to such COMPUWARE client. Each Service Order shall be (i)
substantially in the form set forth in Exhibit C to this Agreement, (ii)
in writing and (iii) not effective unless and until executed by ALYDAAR
and COMPUWARE.
Each Service Order shall be deemed to incorporate all of the provisions
of this Agreement, unless otherwise agreed to by the parties.
b) This Paragraph has been intentionally deleted. The Company has
requested Confidential Treatment from the Securities and Exchange
Commission.
c) Each party also engages the other to assist it with the marketing of
each party's Year 2000 remediation services, as further set forth in
Exhibit A. Neither party shall have the right to appoint other
marketing representatives to act on behalf of the other party, without
the express written consent of such party.
3. PERFORMANCE STANDARDS
If ALYDAAR is unable or fails to perform the Services for which a Service
Order has been executed by COMPUWARE and ALYDAAR, the parties will meet to
discuss a resolution to the problem. If it is determined that ALYDAAR
cannot perform the Services in question such that ALYDAAR'S failure to
perform would be deemed a material breach of the applicable Y2K Agreement,
ALYDAAR shall assist Compuware in finding another subcontractor to perform
the work for COMPUWARE.
4. LICENSE GRANT TO COMPUWARE
The Services which ALYDAAR provides to COMPUWARE and COMPUWARE clients shall
include the software remediation services detailed in Exhibit A, as well as
certain Software which is proprietary to ALYDAAR. "Software" shall mean the
resulting executable instructions and appropriate comments of ALYDAAR's
software imbedded in the COMPUWARE client's software by the ALYDAAR
SMARTCODE(R) software and proprietary process used to remediate COMPUWARE
client's software, including: (a) source code; (b) any modifications,
revisions, or replacements for all of the foregoing items; and (c) all
copies, derivative works, inventions, discoveries, patentable or
copyrightable matter, concepts, expertise, techniques, patents, copyrights,
trade secrets and other related legal rights of the foregoing items.
"Software" specifically excludes the ALYDAAR SMARTCODE(R) software. ALYDAAR
grants to COMPUWARE a non-exclusive, non-transferable, royalty free license
for the term of this Agreement to the right to sublicense the Software to
COMPUWARE clients. COMPUWARE agrees to sublicense the Software to its clients
under the terms of the modified Y2K Agreement, a copy of which is attached as
Exhibit B. If COMPUWARE fails to enforce the required terms of any Y2K
Agreement relating to the Software, ALYDAAR shall have the right to enforce
such agreement as a third party beneficiary. The Software additional terms
and conditions is for use in the United States of America only. Additional
terms and conditions may be agreed to by COMPUWARE and ALYDAAR if COMPUWARE
finds opportunities for ALYDAAR Services in countries other than the United
States.
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5. PAYMENT
a) ALYDAAR shall invoice COMPUWARE upon completion of the Services and
delivery of the remediated code to the COMPUWARE client, as set forth
in the applicable Service Order. Terms shall be net 10 days from
COMPUWARE's receipt of payment from the COMPUWARE client, provided
Compuware shall (a) invoice the COMPUWARE client for ALYDAAR's Services
within 10 days of ALYDAAR's invoice date and (b) not withhold payment
to ALYDAAR for ALYDAAR's Services if the COMPUWARE client is
withholding payment to COMPUWARE for reasons other then issues related
to the ALYDAAR Services. All payments set forth in this Agreement are
to be made in U. S.
Dollars.
b) This Paragraph has been intentionally deleted. The Company has
requested Confidential Treatment from the Securities and Exchange
Commission.
c) This Paragraph has been intentionally deleted. The Company has
requested Confidential Treatment from the Securities and Exchange
Commission.
6. RELATIONSHIP OF PARTIES
It is agreed that ALYDAAR is an independent contractor and not an
employee of COMPUWARE or any COMPUWARE client. In the performance of
the work contemplated in this Agreement, ALYDAAR is an independent
contractor with the authority to control and direct the performance of
the details of the Services. This Agreement shall not be construed to
form a partnership between the parties nor to create any form of
employment relationship or any legal association which would impose
liability upon one party for the act or failure to act of the other
party.
7. TAXES AND BENEFITS
ALYDAAR agrees that it shall be exclusively responsible to file any and
all returns and reports, withhold and/or pay any and all applicable
federal, state and local wage or employment related taxes, including
but not limited to income taxes, gross receipts taxes, taxes measured
by gross income, social security taxes and unemployment taxes for
ALYDAAR's employees. ALYDAAR agrees to indemnify and to hold COMPUWARE
and its clients harmless to the extent of any obligation imposed by law
on COMPUWARE or its clients to pay any withholding taxes, social
security, unemployment or disability insurance or similar items for an
ALYDAAR employee in connection with any payments made to ALYDAAR by
COMPUWARE pursuant to this Agreement. Except as set forth above and for
taxes based on ALYDAAR's net income, COMPUWARE is responsible for and
shall pay all fees, assessments, duties and taxes (including, but not
limited to, sales or use taxes) which may now or later be paid or
payable because of the Agreement
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8. LIABILITY
a) EACH PARTY'S TOTAL CUMULATIVE LIABILITY TO THE OTHER FOR ANY LOSS OR
DAMAGE, DIRECT OR INDIRECT, FOR ANY CAUSE WHATSOEVER ARISING UNDER OR
IN ANY WAY CONNECTED WITH THIS AGREEMENT AND REGARDLESS OF THE FORM OF
ACTION SHALL NOT EXCEED THE LESSER OF (A) THE FEES PAID BY COMPUWARE TO
ALYDAAR UNDER A Y2K AGREEMENT IN THE EVENT THE LOSS OR DAMAGE AROSE
UNDER OR WAS IN ANY WAY CONNECTED TO A Y2K AGREEMENT OR (B) THE FEES
PAID BY COMPUWARE TO ALYDAAR IN THE TWELVE (12) MONTHS IMMEDIATELY
PRECEDING THE DATE OF THE LOSS OR DAMAGE. IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR LOST PROFITS, CONSEQUENTIAL, EXEMPLARY, SPECIAL,
INCIDENTAL, OR PUNITIVE DAMAGES, ARISING FROM OR RELATED IN ANY WAY TO
THIS AGREEMENT REGARDLESS OF TYPE OF CLAIM, WHETHER IN CONTRACT, TORT,
STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE TERMS OF
THIS PARAGRAPH SHALL NOT APPLY TO: (A) CLAIMS NOT RELATING TO
PERFORMANCE OF A PARTY'S SOFTWARE THAT INVOLVES PERSONAL INJURY,
INCLUDING DEATH, AND DAMAGE TO REAL AND TANGIBLE PERSONAL PROPERTY; (B)
THE INFRINGEMENT INDEMNIFICATION OBLIGATIONS SET FORTH BELOW; AND (C)
ANY BREACH BY A PARTY OF PARAGRAPHS4, 10(c) OR 11.
b) Each party agrees to indemnify, defend and hold
harmless the other from and against any claim
asserted or suit or proceeding brought against the
other party ("Indemnified Party") alleging that (a)
the Software or the COMPUWARE client's software
infringes a patent, trademark, copyright or trade
secret of a third-party, and (b) a breach of
Paragraphs 10(a) or 10(b) has occurred, provided the
indemnifying party ("Indemnifying Party") is given
prompt written notice of, and full and complete
authority, information and assistance in the defense
of, such claim, suit or proceeding. The Indemnifying
Party shall not be responsible for the cost of any
settlement of any such claim, suit or proceeding made
without the written consent of the Indemnifying
Party. The Indemnifying Party shall not be liable to
the Indemnified Party under the terms of this
Paragraph or otherwise if any infringement or claim
is based upon the use of any Software in violation of
the license granted under this Agreement, or in
combination with any software or customization
performed by the Indemnifying Party for the
Indemnified Party based upon the Indemnified Party's
ideas, designs, or specifications.
9. RIGHTS OF TITLE
Except for the Software as set forth in Section 4 herein, all rights
and title to changes in COMPUWARE client's software produced by ALYDAAR
under this Agreement,
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including reports, programs, manuals, discs, tapes, listings, belong
exclusively to COMPUWARE's client and shall be considered works made
for hire. ALYDAAR agrees that COMPUWARE or COMPUWARE's clients have the
right to hold all copyrights, trademarks, patents or whatever
protection may be deemed appropriate to such changes to COMPUWARE
client's software. ALYDAAR agrees to give COMPUWARE all reasonable
assistance required to protect the rights defined herein.
10. WARRANTY
a) ALYDAAR warrants that: (i) all ALYDAAR Services provided by ALYDAAR
under this Agreement shall be performed by qualified personnel in a
good and workmanlike manner; and (ii) it either owns or has the right
to license all property included in the ALYDAAR Software.
b) COMPUWARE represents and warrants that COMPUWARE or COMPUWARE's
clients either own or have the right to license all property included
in the COMPUWARE clients' software provided to ALYDAAR for remediation
pursuant to a Y2K Agreement.
c) ALYDAAR and COMPUWARE each represent and warrant that it will fully
comply with all applicable laws and regulations as applicable to this
Agreement. Each party shall indemnify and hold harmless the other party
,and its clients, from and against any and all liabilities, damages,
losses, claims or expenses (including attorney fees) arising out of any
breach of this section.
d) THE FOREGOING SPECIFIED WARRANTIES AND CONDITIONS ARE COMPUWARE'S
AND ALYDAAR'S SOLE WARRANTIES AND CONDITIONS UNDER THE TERMS OF THIS
AGREEMENT. THE PARTIES MAKES NO OTHER WARRANTY OR CONDITION OF ANY KIND
WHATSOEVER, EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES AND
CONDITIONS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY,
NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY
DISCLAIMED AND EXCLUDED BY ALYDAAR AND COMPUWARE.
11. CONFIDENTIAL AND PROPRIETARY INFORMATION
COMPUWARE and ALYDAAR each shall not use or disclose to third parties
or parties without a need to know any confidential or proprietary
information of the other party or any COMPUWARE client. Confidential or
proprietary information, whether tangible or intangible, includes but
is not limited to the materials produced under this Agreement, this
Agreement, information concerning products and services of each party,
and such information which is designated as proprietary. Each party
shall safeguard such material by using the same degree of control and
care as a reasonable prudent person would exercise with respect to
his/her similar property under similar circumstances and shall
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return such material to the disclosing party immediately upon oral
and/or written request to do so.
COMPUWARE and ALYDAAR acknowledge that they are each in the business of
developing and marketing software products and services, and that they
each may now be developing internally or in the future may develop
internally or receive from third parties information that may be
similar or identical to each parties confidential information. This
Agreement shall not impair the right of either party to make, procure
or market products or services now or in the future, which may be
competitive with those to which the other party's confidential
information may relate.
12. NON-SOLICITATION
During the term of and for a one year period following termination of
this Agreement, neither party will employ, solicit the employment of,
or aid any third party in soliciting an employee of the other party.
13. APPLICABLE LAW AND COMPLIANCE
This Agreement shall be governed by the laws of the State of Michigan,
United States of America, specifically excluding its conflicts of laws
rules. The parties agree that the United Nations Convention on
Contracts for the International Sales of Goods shall not apply in any
respect to this Agreement or the parties hereto or COMPUWARE clients
sublicensing the ALYDAAR Software.
14. ATTORNEY FEES
In the event it becomes necessary to bring suit to enforce any
provision of this Agreement, the prevailing party shall be entitled to
recover, in addition to any other award, reasonable legal costs
including court costs and attorney fees.
15. COMPLETE AGREEMENT
This Agreement and the attached Exhibits are the complete understanding
between ALYDAAR and COMPUWARE, and supersede all prior agreements and
understandings, whether oral or written, concerning the subject matter.
16. NOTICES
Any notice required or permitted to be given under this Agreement shall
be properly made if in writing and personally delivered or mailed by
certified or registered mail, postage prepaid with return receipt
requested as follows:
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TO COMPUWARE: COMPUWARE CORPORATION
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: President
TO ALYDAAR: ALYDAAR SOFTWARE CORPORATION
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Notice given under this Agreement shall be deemed to be made when
delivered (if personally delivered) or on the third day following the date
the notice was mailed by the notifying party (if mailed by certified or
registered mail).
17. WAIVER OF BREACH
The waiver by either COMPUWARE or ALYDAAR of a breach of any provision of
this Agreement shall not act as a waiver of any prior or subsequent
breach.
18. SURVIVAL
The provisions of the sections titled "Payment," "Taxes and Benefits,"
"Liability," "Confidential and Proprietary Information," and
"Non-Solicitation" shall survive termination of this Agreement or any
relationship between ALYDAAR and COMPUWARE.
19. ASSIGNMENT
Neither party shall be entitled to assign this Agreement in whole or in
part without the prior written consent of the other party. Subject to all
of the terms and conditions hereof, this Agreement inures to the benefit of
and is binding upon the parties hereto and their successors and assigns.
ALYDAAR reserves the right to subcontract, in whole or in part, performance
of the ALYDAAR Services set forth herein, provided that ALYDAAR shall
remain responsible for the provision and performance of such ALYDAAR
Services by its subcontractor(s).
20. HEADINGS
The headings of the paragraphs are for convenience only and shall not
control or affect the meaning or construction or limit the scope or intent
of any of the provisions of this Agreement.
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21. NO REPRESENTATIONS.
Neither party shall either orally or in writing, accept, approve or execute
any letter, document, order or agreement on behalf of, or in the name of,
the other party. Other than as set forth in this Agreement or any Service
Order hereunder, neither party shall make any representation, either orally
or in writing, to a Client or any other person concerning the price,
performance or specifications of the services or software of the other
party or concerning any term or condition of such services or software,
unless contained in the written materials of the other party or expressly
authorized by the other party in writing.
22. TRADEMARKS
Each party acknowledges that the other is the owner of rights, title, and
interest in and to certain trademarks, service marks, patents, copyrights,
and other proprietary interests that such party may use in connection with
marketing its software and services (the "Marks"). The parties agree to the
use of the Marks in the marketing, advertising, and distributing of each
party's software and services under the terms of this Agreement. In written
communications and in advertising, each party's use of the Marks shall at
all times be in accordance with such styles and together with such ▇▇▇▇
notices as the owning party may require. Each party agrees that it will not
file for registration of any ▇▇▇▇ of the other party in any foreign country
and that the use of the Marks by a party shall inure to the benefit of the
owning party. Each party shall, upon request by the other party, execute
whatever documents may be necessary to effectuate the obtaining and
maintaining of registration by the owning party of the Marks. In the event
this Agreement expires or is terminated, each party will promptly cease
using the Marks of the other party.
23. ACCESS TO BOOKS AND RECORDS
The parties shall keep complete, accurate, and up-to-date books and
records in accordance with generally accepted accounting principles and
sound business practices covering all transactions relating to this
Agreement. Either party and/or its authorized representatives shall
upon reasonable notice have the right (not more than once annually) to
inspect, audit, and/or copy such records in order to determine whether
all provisions of this Agreement have been met. The parties agree that
all information and records obtained in such audit shall be considered
Confidential Information under this Agreement. This right to audit
shall be available to either party for up to two (2) years following
the termination of this Agreement.
24. FORCE MAJEURE.
Neither party shall be responsible or considered in breach of this
Agreement for any delay or failure in the performance of any obligation
of this Agreement to the extent that such failure or delay is caused by
acts of God, fires, explosions, labor disputes, accidents, civil
disturbances, material shortages or other similar causes beyond its
reasonable control, even if such delay or failure is foreseeable.
Provided, however, that the non-performing party provides notice of
such cause preventing or delaying performance and resumes its
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performance as soon as practicable and provided further that the other
party may terminate this Agreement upon notice if such non-performance
continues for a period of ninety (90) days.
Accepted by: Accepted by:
COMPUWARE CORPORATION ALYDAAR SOFTWARE CORPORATION
/s/ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Authorized Signature Authorized Signature
▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Printed Name Printed Name
Sr. Vice President Chief Operating Officer
Title Title
December 17, 1997 December 15, 1997
Date Date
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EXHIBIT A
SERVICES
This Paragraph has been intentionally deleted. The Company has requested
Confidential Treatment from the Securities and Exchange Commission.
ALYDAAR will provide training to COMPUWARE sales and marketing staff to
understand the ALYDAAR methodology, technology and deliverables.
ALYDAAR will make available to COMPUWARE the same 10,000 line free demo to be
provided to potential COMPUWARE clients if they meet ALYDAAR's
qualification process.
DESCRIPTION OF ALYDAAR SERVICES
1.0 DEPENDENCIES
It is responsibility of ALYDAAR to provide the COMPUWARE Client with
written guidelines for the transfer of Application code to ALYDAAR.
ALYDAAR's services are dependent upon the COMPUWARE Client packaging
the Application code in accordance with ALYDAAR's specifications.
ALYDAAR's project manager assigned to COMPUWARE Client will provide any
phone assistance needed to help or clarify specific issues.
2.0 ALYDAAR SERVICES.
ALYDAAR will perform the following services:
Supply an initial questionnaire along with a list of packaging
requirements in order that the remediation can begin. Upon receipt
of a completed questionnaire and correctly packaged Application
along with a related letter of transmittal, the project activities
will begin.
Resources are assigned and a contact list is delivered to COMPUWARE
Client.
An initial compile is completed on the Application and the results
stored for later comparison. An inventory report and line count
report are generated and delivered to the COMPUWARE Client. The
initial line count will be for all programming modules received.
This line count is broken down into executable, commented, and
blank lines.
ALYDAAR will perform an initial application level evaluation on the
Application code to search for special remediation cases. These
issues may include hard-coded 19's, year-related 88 levels, report
writer variables, and COMPUWARE Client-inserted century
determination. From this assessment ALYDAAR will generate a report
identifying resolutions that require COMPUWARE Client feedback.
From the assessment report, COMPUWARE Client needs to provide all
resolutions in order that the remediation may proceed. The
resolution of issues identified in the initial assessment and
issues document becomes the special requirements for COMPUWARE
Client.
Next,the Application will be submitted to the SMARTCODE(R) process and
all date variables will be examined for possible Year 2000
problems. A date is nominated if it is not century compliant and
is used during a critical operation that will cause the
Application to fail in 2000 and beyond. ALYDAAR will remediate the
Application to return the correct logic hen these nominated
variables are used. All other solutions will be applied as a
result of the COMPUWARE Client's response to the initial
assessment.
a) When all modifications are completed ALYDAAR will perform a second
compile and compare the results with the first to check for syntax
or other errors that may be detected. Upon completion ALYDAAR will
generate a final report to accompany the remediated Application
source code and ALYDAAR library modules.
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3.0 PROJECT PLAN/SCHEDULE
Key projected milestones for this effort are as follows:
Receive the correctly packaged Application code. [date]
ALYDAAR resources are assigned and a contact list is delivered. [date]
Initial compile and verification of receipt of all required
source code [date]
Initial evaluation report with the source code line count. [date]
Receive resolutions to the findings of the assessment report. [date]
Return of remediated source modules and delivery of the final
report. [date]
4.0 DELIVERABLES
a) Return of Remediated Application. ALYDAAR will return the modified
files only on the tape. The tape will be of the same format and
structure as received. The tape will be labeled with the contents
meeting naming standards set forth by COMPUWARE Client.
b) Return of ALYDAAR Software. ALYDAAR will deliver on the tape
ALYDAAR's (source code) library modules that are used in the
Application for remediation. This includes all ALYDAAR modules called
from within ALYDAAR library modules.
c) Final Report. ALYDAAR will deliver a final report containing at
least the following information:
Restatement of special requirements.
Listing of modules remediated.
Line counts broken down into comments, executables, and blank lines. In
addition, ALYDAAR may include other information that is not a year
2000 problem but may cause other issues.
d) Documentation. ALYDAAR will deliver a complete listing of all
changes made to the Application code.
e) Delivery, Testing, Waiver: ALYDAAR will deliver the COMPUWARE
Client software to COMPUWARE Client in accordance with the schedule
and other requirements set forth in the applicable Service Order.
Following receipt of the COMPUWARE Client software, the COMPUWARE
Client shall have thirty (30) days ("Test Period") (a) to verify that
the COMPUWARE Client software performs materially in accordance with
all specifications set forth in the applicable Service Order, and (b)
to notify ALYDAAR in writing of any failure to perform materially in
accordance with such specifications (such failure being referred to
herein as a "NonCompliance"). Upon ALYDAAR's timely receipt of a
notice of Non-Compliance, ALYDAAR shall work diligently to correct
such Non-Compliance at no charge to the COMPUWARE Client, provided
that COMPUWARE Client did not caused such Non-Compliance. In the event
ALYDAAR has received a notice of Non-Compliance before the end of the
Test Period, the Test Period shall continue on a day-by-day basis
until each item of Non-Compliance has been corrected by ALYDAAR and
COMPUWARE Client has had the longer of the remainder of the Test
Period, fourteen (14) days or some other mutually agreeable time
period to test such corrected item of Non-Compliance so noted. Should
the COMPUWARE Client software not provide ALYDAAR with written notice
of NonCompliance during the Test Period or within the time frames set
forth above for corrected Non-Compliance, the Test Period shall be
deemed to be completed.
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EXHIBIT B
PRODUCTION 2000
PROFESSIONAL SERVICES AGREEMENT
BY AND BETWEEN
COMPUWARE CORPORATION
("COMPUWARE")
AND
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("CLIENT")
As more specifically set forth in the following terms and conditions,
COMPUWARE shall perform for CLIENT the services described in each Service Order
and/or Statement of Work ("Project") attached hereto and incorporated herein by
reference.
This Agreement is entered into this _____ day of ___________________
(month, year)
FOR COMPUWARE: FOR CLIENT:
By: __________________________ By: __________________________
Name: ________________________ Name: ________________________
Title: ______________________ Title: _________________________
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TERMS AND CONDITIONS
I. LOCATION
Project services will be performed at sites established by CLIENT and
COMPUWARE as agreed to in the Service Order or Statement of Work.
II. NON-SOLICITATION OF EMPLOYEES
CLIENT agrees that it will not solicit COMPUWARE's employees to seek an
employment or other contractual arrangement with its company. CLIENT
agrees that COMPUWARE employees are not "contract for hire".
CLIENT may be released from such restriction under the following terms:
The payment of $25,000.00 to COMPUWARE for each employee hired by
CLIENT, and
Each COMPUWARE employee hired by CLIENT has performed services for
CLIENT under this Agreement for twelve (12) consecutive months or more.
III. RIGHTS OF TITLE
Except related to rights in the Software (as defined herein), all
CLIENT reports, programs, manuals, discs, tapes, listings and any other
material prepared by or worked on by COMPUWARE's employees shall belong
exclusively to CLIENT and CLIENT shall have the right to obtain from
COMPUWARE and/or COMPUWARE's employees, and to hold in CLIENT's name
all copyrights, trademark registrations, patents or whatever protection
CLIENT may deem appropriate to the subject matter. COMPUWARE agrees to
give CLIENT reasonable assistance required to protect the rights
defined in this paragraph.
IV. CLIENT'S OBLIGATIONS
If COMPUWARE staff are provided to work on CLIENT's premises or other
premises under CLIENT's control, CLIENT shall ensure that staff are
provided with suitable office accommodation and services. COMPUWARE
will use reasonable endeavors to ensure that its staff comply with all
reasonable security regulations and requirements made known to it
concerning the conduct of personnel at the said premises. However,
COMPUWARE staff shall at all times be subject to the employment
conditions of COMPUWARE and not those of CLIENT.
V. CONVERSION AND TESTING
CONVERSION: COMPUWARE and CLIENT shall jointly identify and install the
required conversion tool set to implement the services set forth in any
Service Order or Statement of Work. All Software tools, tool sets and
programs to be used in the analysis and conversion process by COMPUWARE
shall remain the property of COMPUWARE or its third party providers.
TESTING: CLIENT shall provide adequate client/server and mainframe
resources and access to all components. CLIENT shall also provide any
necessary workstations and space for the Project team. COMPUWARE shall
be responsible for performing unit, system and stress or integration
tests, as set forth in any Service Order or Statement of Work. CLIENT
shall also be
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responsible for acceptance test criteria, and must approve all test
results in writing. COMPUWARE will then assist CLIENT with migration
back to production status.
VI. ACCEPTANCE
Prior to the initiation of the Project and with COMPUWARE's approval,
CLIENT shall define the acceptance criteria which will be used to
validate the conversion results. Following conversion of each
application system, CLIENT shall conduct an acceptance test in order to
confirm that the equipment, programs and components, as converted,
satisfy the conversion acceptance specifications in all material
respects.
CLIENT must verify the acceptance test results in writing within seven
(7) days. Project results will be deemed accepted if CLIENT does not
respond within seven (7) days. COMPUWARE shall correct any defect
revealed by the acceptance test. After such correction, COMPUWARE shall
thereafter confirm in writing to CLIENT that such defect has been
corrected. CLIENT shall then verify with COMPUWARE within seven (7)
days that CLIENT agrees the defect has been corrected.
VII. WORK EFFORTS
Project assignments and guidance of work efforts will be the
responsibility of COMPUWARE's Conversion Project Manager. CLIENT shall
appoint a Project Manager who shall be CLIENT's full-time liaison with
COMPUWARE's Project Manager. All Project-related inquiries and
requests, whether from CLIENT or COMPUWARE, shall be directed to the
Project Managers.
VIII. PROGRESS MEETINGS AND REPORTS
The Project Managers shall meet regularly, at least once a month, to
discuss the progress of the Project. Minutes of such meetings shall be
recorded by COMPUWARE's Project Manager, with a copy provided to
CLIENT's Project Manager within five (5) days of the meeting. Any
additions or deletions to the minutes shall be provided within (3)
three days of receipt of the minutes by the CLIENT's Project Manager.
The minutes shall include, but are not limited to, the progress of the
work, any anticipated problems (resolved or unresolved), and any
indication of delay in fixed or tentative schedules.
Approximately once a month, the parties shall meet for a formal
progress presentation, at which time COMPUWARE shall describe the
status of the Project work. Such presentation shall provide projections
of the time of completion and shall address any issues and their
possible resolution.
The CLIENT shall, where applicable, promptly provide COMPUWARE with
(and warrants that it is entitled to do so) accurate and complete
information concerning Project requirements, answers to queries,
decisions and approvals required by COMPUWARE in connection with the
Project. COMPUWARE staff shall have access to CLIENT personnel and
premises at all reasonable times as required by COMPUWARE for the
performance of the services.
Failure by CLIENT to provide the assistance referred to in this
paragraph may prohibit effective action by COMPUWARE and render
COMPUWARE unable to perform. In such circumstances, COMPUWARE shall be
under no liability to perform its obligations under this Agreement to
the extent that performance is prohibited by such failure of CLIENT.
14
IX. SOFTWARE LICENSE
▇. ▇▇▇▇▇ of Software License
COMPUWARE shall obtain for CLIENT a non-exclusive, non-transferable
license to allow COMPUWARE to use on CLIENT's behalf the proprietary
software product(s) and related user manuals provided under this
Agreement (collectively referred to as Software). Certain of the Software
may be utilized for CLIENT in machine readable object code for the use as
specified on any Service Order or Statement of Work. In addition,
COMPUWARE hereby conveys a perpetual, royalty free, non-exclusive,
non-transferable, restricted use license for the comments or executable
instructions in source code imbedded in CLIENT's software ("Imbedded
Software"). The Imbedded Software may not be replicated, duplicated,
distributed or used other than where installed in the Client's software,
except for a reasonable number of back-up copies rented, leased or
provided for use in remote computer services for third parties. CLIENT
shall maintain the Imbedded Software, provided all changes, modifications
or improvements made or developed with regard to the Imbedded Software
shall remain the property of COMPUWARE and/or its third party providers.
"Imbedded Software" is deemed "Software" for all other purposes set forth
in this Agreement.
B. Intellectual Property Rights in Software
This Agreement does not transfer title to CLIENT of the intellectual
property or rights thereto contained in the Software. CLIENT
acknowledges and agrees that the Software is the property of and
contains confidential information and trade secrets of COMPUWARE and/or
its third party providers, and agrees that CLIENT will keep in
confidence and protect the Software from disclosure and restrict its
use as provided in this Agreement. CLIENT shall not remove and place on
copies all proprietary, confidential and copyright notices, markings or
legends which appear on any item included in the Imbedded Software.
COMPUWARE and/or its third party providers reserve all rights granted
to them under the copyright, patent and other intellectual property
laws of the United States and all other statutory and common laws.
C. Software Warranty
COMPUWARE warrants and represents that (i) it has the
authority to grant the license described in the Agreement, (ii) the
Software will operate in substantial accordance with the specifications
set forth in the user manuals applicable to the Software at the time
the Software is in use, and (iii) any Software maintenance service
rendered by COMPUWARE will be performed by qualified personnel.
COMPUWARE will make reasonable efforts to correct significant
deviations from such specifications.
In the event of an intellectual property right claim against CLIENT
arising out of the use of the Software, COMPUWARE agrees to indemnify
and hold CLIENT harmless provided CLIENT (i) gives COMPUWARE prompt
written notice of such claim, (ii) permits COMPUWARE to defend or
settle the claim, and (iii) provides all reasonable assistance to
COMPUWARE in defending or settling the claim.
The warranties given in this section are in lieu of all other
warranties pertaining to the software whether written, oral, express or
implied including, without limiting the generality of the foregoing,
the implied warranties of merchantability and fitness for a particular
purpose.
15
D. Software Liability
Except as provided in Section C. above, the entire liability of
COMPUWARE and/or its third party providers, and CLIENT's sole and
exclusive remedy for damages from any cause related to or arising out
of the Software licensed under this Agreement, regardless of the form
of action, whether in contract or in tort, will not exceed the license
fee paid by CLIENT to COMPUWARE for the Software.
COMPUWARE shall have no liability if the alleged infringement is based
on modification of the Software by anyone other than COMPUWARE, or use
of the Software other than as specified in any Service Order or
Statement of Work. This section states the entire liability of
COMPUWARE and CLIENT's sole and exclusive remedy with respect to
misappropriation or infringement of intellectual property rights of the
Software.
X. TERMINATION
Unless otherwise set forth in any Service Order or Statement of Work,
either party may terminate this Agreement for any reason with thirty
(30) days prior written notice to the other party.
If this Agreement is terminated according to this paragraph and CLIENT
instructs COMPUWARE to remove any employee before the thirty (30) days
elapse, COMPUWARE shall be entitled to the equivalent of one month's
billing for the employee's services. The amount will be based on a
forty (40) hour week or a prorated share thereof.
Except as authorized under this paragraph, this Agreement may be
terminated:
1. immediately by COMPUWARE if CLIENT fails to pay
any sum duewithin 14 days of written notice that
payment is due;
2. immediately by either party if the other party
commits a material breach of any term of this
Agreement and which (in the case of a breach capable
of being remedied) shall not have been remedied
within 30 days of a written request to remedy the
same; or
3. immediately by either party if the other shall
convene a meeting of its creditors or if a petition
is filed in the bankruptcy court.
Any termination of this Agreement pursuant to this paragraph shall be
without prejudice to any other rights or remedies either party may be
entitled to hereunder or at law and shall not affect any accrued rights
or liabilities of either party.
XI. PAYMENT
COMPUWARE shall invoice CLIENT for services on a monthly basis. Terms
shall be net 30 days. All objections by CLIENT to an invoice must be
made in writing to COMPUWARE within seven (7) days after receipt of the
invoice. If no objections are received by COMPUWARE within such seven
(7) day period, the invoice shall be deemed accepted by CLIENT for such
services provided by COMPUWARE and paid within 30 days of its receipt.
CLIENT shall pay the invoice(s) received from COMPUWARE for all
chargeable Software tools, tool sets and programs within thirty (30)
days of acceptance of this Agreement.
16
COMPUWARE's employees' daily working hours shall be the same as worked
by CLIENT's employees, unless otherwise directed by CLIENT. COMPUWARE
shall be paid at the billable rates or other terms and conditions set
forth in any Service Order or Statement of Work. Hours worked in excess
of standard hours in the month will be considered overtime hours.
Standard hours are calculated by multiplying business days, less CLIENT
holidays, by eight (8).
A one and one-half percent (1-1/2%) per month carrying charge may be
applied to any balance unpaid for more than thirty (30) days.
If payment has not been received as set forth herein, COMPUWARE
reserves the right, in addition to any other rights it may have to
suspend the services until such payment is made in full.
XII. TAXES
CLIENT shall be responsible for payment of all taxes, if any, levied
upon the services provided under this Agreement.
XIII. TRAVEL AND PER DIEM EXPENSE REIMBURSEMENT
CLIENT agrees to reimburse COMPUWARE for any out-of-pocket expense,
such as travel actually incurred by any COMPUWARE employee and
requested by CLIENT under this Agreement. Upon request, COMPUWARE will
supply CLIENT with supporting documentation.
XIV. INSURANCE
COMPUWARE agrees to maintain the following insurance for its employees:
Worker's compensation insurance covering all COMPUWARE employees;
Employer's liability insurance
Comprehensive automobile liability insurance for combined bodily injury
and property damage;
Comprehensive general liability insurance for combined bodily injury
and property damage; and
COMPUWARE agrees to provide CLIENT with certificates of insurance upon
request.
If COMPUWARE fails to provide the insurance coverage specified in this
section, CLIENT may charge back against COMPUWARE's invoices actual
insurance expenses incurred by CLIENT to provide the protection.
CLIENT may also recover the actual value of any claims paid as a result of
COMPUWARE's failure to provide the specified coverage.
17
XV. INDEPENDENT CONTRACTOR RELATIONSHIP
It is expressly understood and agreed that the technical personnel
assigned by COMPUWARE to CLIENT under this Agreement are COMPUWARE
employees or agents. Under no circumstances are such personnel to be
considered CLIENT employees or agents. COMPUWARE shall be in an
independent contractor relationship with CLIENT.
XVI. LIABILITY
Both parties agree to indemnify and hold each other harmless for any
injuries to persons or property caused by the intentional and willful
acts of each party's employees while on assignment to CLIENT.
XVII. EXCLUSIVE REMEDY
CLIENT's exclusive remedy for breach of this Agreement shall be: (1) to request
error corrections or (2) if COMPUWARE materially fails to effect error
corrections after a reasonable opportunity to do so, to recover the
amount paid to COMPUWARE with respect to that portion of the code that
cannot be made to operate in substantial conformance to any written
specifications provided to COMPUWARE by CLIENT. COMPUWARE shall have no
liability to CLIENT's customers or end users with regard to the subject
matter of this Agreement.
XVIII. WARRANTIES AND REMEDIES
COMPUWARE represents and warrants that all employees assigned to CLIENT under
this Agreement shall be qualified personnel. COMPUWARE shall replace
any employee who is not qualified. COMPUWARE SHALL NOT BE LIABLE FOR
ANY DAMAGES WHETHER INDIRECT, SPECIAL OR GENERAL, CONSEQUENTIAL OR
INCIDENTAL OR LOST PROFITS, ARISING FROM THE FURNISHING OF SERVICES
UNDER THIS AGREEMENT, WHETHER IN AN ACTION BASED ON CONTRACT OR TORT,
INCLUDING NEGLIGENCE AND STRICT LIABILITY. CLIENT AGREES THAT
COMPUWARE'S LIABILITY FOR DAMAGES, IF ANY, SHALL NOT EXCEED THOSE
CHARGES PAID TO COMPUWARE BY CLIENT FOR THE SERVICES RENDERED BY THE
COMPUWARE EMPLOYEE(S) WHO CAUSED SUCH DAMAGE.
THE WARRANTIES GIVEN IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES
WHETHER WRITTEN, ORAL, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
CLIENT EXPRESSLY AGREES THAT IT IS CLIENT'S OBLIGATION, NOT COMPUWARE'S, TO
ENSURE THAT ANY SERVICES OR PRODUCTS PROVIDED BY COMPUWARE
HEREUNDER ARE SUITABLE FOR CLIENT.
XIX. CLIENT REPRESENTATIONS, WARRANTY AND INDEMNIFICATION
CLIENT represents and warrants to COMPUWARE that CLIENT has the right under
the terms of its software licenses to modify any licensed software
which COMPUWARE works on under the terms of this Agreement. CLIENT
agrees to indemnify and hold COMPUWARE harmless for any action or claim
arising out of the unauthorized modification of CLIENT'S code.
18
XX. LOSS OF DATA
In no event shall COMPUWARE be liable for loss of data or the records of
CLIENT, it being understood that CLIENT shall be responsible for
ensuring proper and adequate processing, back up and storage
procedures.
XXI. CONFIDENTIAL INFORMATION
Each party agrees that during and after the term of this Agreement it will
keep secret and will not without the prior written consent of the other
use or disclose to any third party any information relating to the
business or affairs of the other party, including without limitation,
third-party software tools and programs the terms of this Agreement, or
that party's customers learned by such party or disclosed to such party
by the other pursuant to or otherwise in connection with this
Agreement.
XXII. NON-COMPETITION
Except as specified in the paragraphs entitled "Non-Solicitation of Employees"
and "Confidential Information," this Agreement shall not restrict
either COMPUWARE or CLIENT from conducting business with firms or
competitors of the other party.
XXIII. ENTIRE AGREEMENT
This document and the Service Orders and/or Statements of Work referred to
herein, as well as any amendments, shall constitute the entire
Agreement between the parties and supersedes all previous
communications, representations, understandings, concurrent or
subsequent purchase orders, and agreements, whether oral or written,
between the parties or any officer or representative of the parties.
CLIENT has relied upon any representations other than those set forth
in this Agreement.
XXIV. AMENDMENTS
No amendment or other variation to this Agreement shall be effective
unless it is in writing and is signed by an authorized person on behalf
of each party.
XXV. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Michigan. Both
parties consent to the jurisdiction of the courts of the State of
Michigan. No action arising out of this Agreement, regardless of the
form, may be brought by either party more than one year after the cause
of action has occurred.
19
XXVI. SEVERABILITY
If any provision of this Agreement is determined to be unenforceable or
invalid, the remaining provisions of this Agreement shall not be
affected and shall remain in full force and effect.
XXVII. FORCE MAJEURE
COMPUWARE and CLIENT shall not be liable for any damages, resulting from the
elements, acts of God, any other cause beyond the reasonable control of
the parties or CLIENT's failure to furnish necessary and accurate
information.
XXVIII. NOTICES
Any notices required under this Agreement shall be in writing. Notices
shall be delivered in person or sent by overnight courier or facsimile
addressed to the addresses on the face of this Agreement. Notice shall
be effective when sent by overnight courier or facsimile, or upon
delivery if delivered in person.
20
EXHIBIT C
SERVICE ORDER
This Service Order, dated ________________, is issued pursuant to the
Subcontractor Agreement ("Agreement") between Alydaar Software Corporation
("ALYDAAR") and Compuware Corporation ("COMPUWARE") for COMPUWARE's client
_______________________________ ("Company") and when duly executed by authorized
representatives of each party is incorporated as an addendum thereunder. Should
a conflict exist among the provisions of the Agreement, Exhibits thereto and
this Service Order, the provisions of this Service Order shall control.
ALYDAAR DELIVERABLES
Rules questionnaire and packaging requirements;
Initial Inventory and Line Count Report;
Assessment and Issues Report;
Request for Company approval of remediation specifications; Final Report; and
Remediated Company software files and ALYDAAR Software library modules.
FEES AND PAYMENT
Estimated number of Lines of Code of each Language:
Language Estimated # of LOC
s
---------------- -----------------------------
Remediation price per Language/per Line of Code:
Language Price per
s LOC
$
---------------- ------------------
Estimated Total Remediation Fee:_____________________. Payable in accordance
with the payment schedule set forth in the Agreement or as set forth below.
Price Per Database Call: _____________. The price per database call will be
multiplied by the number of calls analyzed in the Company software to
arrive at the total database call fee and invoiced upon delivery of
remediated code to Company.
ESTIMATED PROJECT SCHEDULE
1. Receive the correctly packaged Company software [date]
2. ALYDAAR resources are assigned and a contact list is delivered. [date]
3. Initial compile and verification of receipt of all required Company
software. [date]
4. Initial evaluation report with the Lines of Code count. [date]
5. Receive resolutions to the findings of the Assessment and Issues
Report. [date]
6. Return of remediated Company software and delivery of the Final Report.[date]
21
ASSUMPTIONS
The Project Schedule will be finalized after resolution of the issues set forth
in the Assessment and Issues Report.
The remediation services will be performed by ALYDAAR at ALYDAAR's location
using the windowing remediation technique in accordance with the
description of services set forth in the Agreement or, if applicable, the
attached Statement of Work.
The final number of Lines of Code and total Remediation Fee will be set forth
in the Inventory and Line Count Report.
OTHER (Add any additional terms here such as payment schedule, if different then
Agreement, or any additional assumptions)
Alydaar Software Corporation Compuware Corporation
By: ........................ By:.............................
Name: ........................ Name:...........................
Title: ........................ Title:..........................
22
EXHIBIT D
PRICING INFORMATION
This Section has been intentionally deleted. The Company has requested
Confidential Treatment from the Securities and Exchange Commission.
23
ADDENDUM I TO
SUBCONTRACTOR AGREEMENT
BETWEEN
COMPUWARE CORPORATION AND ALYDAAR SOFTWARE CORPORATION
This Addendum I ("Addendum"), dated February 3, 1998 ("Addendum
Effective Date"), to Subcontractor Agreement dated October , 1997 ("Agreement")
is made by and between Compuware Corporation ("Compuware") and ALYDAAR SOFTWARE
CORPORATION ("Alydaar"). The provisions of this Addendum are hereby made a part
of the Agreement. Should a conflict exist among the provisions of the Agreement,
the Exhibits thereto and this Addendum, the provision of this Addendum shall
control. Any terms in capital letters not defined in this Addendum shall have
the meaning as set forth in the Agreement. All references to paragraph numbers
shall correspond to those paragraph numbers in the Agreement.
The parties agree that Compuware clients may, upon request, license the Alydaar
Software common library modules (that exist as of the date the remediated
code is returned to the Compuware client) for the languages for which
Alydaar has provided the Services. In addition, Compuware clients may, upon
request, replicate, duplicate, distribute or use the Software only for the
purposes of creating new Compuware client software that is Year 2000
compliant. "New Compuware client software" for purposes of the proceeding
sentence means Compuware client software that did not exist as of the date
the Y2K Agreement was signed.
The Agreement as modified by this Addendum ("Modified Amendment") constitutes
the entire agreement and supersedes all prior and contemporaneous
agreements between Alydaar and Compuware in connection with the subject
matter therein. No officer, employee, servant or other agent of Alydaar is
authorized to make any representation, warranty or other promise not
expressly contained herein with respect to the subject matter hereof.
COMPUWARE CORPORATION
BY: /s/ ▇. ▇▇▇
NAME: ▇. ▇▇▇
TITLE: V.P.
ALYDAAR SOFTWARE CORPORATION
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
TITLE: Chief Operating Officer
