Exhibit 10.4
CONTINUING SERVICES AGREEMENT
This Continuing Services Agreement ("Agreement") is entered into and made
effective as of this ___ day of __________, 1998 ("Effective Date"),
between_________________, a _____________ corporation, having its principal
place of business at _________________________________________________
("Company"), and Alydaar Software Corporation, a North Carolina corporation
having its principal place of business at 0000 Xxxxxxx Xx., Xxxxx 000 Xxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 ("Alydaar"). In consideration of the terms and
conditions contained in this Agreement, the delivery and sufficiency of which is
acknowledged by both parties, Company and Alydaar agree as follows:
1. DEFINITIONS.
1.1 "Software" means the computer software owned or licensed by a
party, including: (a) the human-readable or machine-readable uncompiled
set of instructions for the Software together with any logic diagrams,
programmers' comments, flow charts, binary object codes, and source codes
listings; and (b) all modifications, revisions, 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.
1.2 "Work Order" means the document or documents incorporating the
terms of this Agreement, and specifying the Services to be performed by
Alydaar and the time frame and price for performing them. A Work Order
shall be substantially in the form of one of the examples set forth in
Exhibit B to this Agreement, provided however, that a Work Order (1) must
be in writing and (2) is not effective unless and until executed by both
parties.
2. SERVICES.
2.1 Service Description. The purpose of this Agreement is to set forth
the terms and conditions under which Alydaar will provide the services
agreed to by the parties in the applicable Work Order and as further
described in the applicable Exhibits ("Services"). The Services may be
for remediation of the Company's Software as set forth in Exhibit A.1
and B.1 ("Remediation Services") or for audit or assessment of the
Company's Software as set forth in Exhibit A.2 and B.2 ("Audit
Services").
2.2 Compiler Requirements. Company shall forward the written or
electronic results of its compilation, including the compiler settings,
of the Company's Software to Alydaar at the time Company sends the
Company's Software to Alydaar for Services. If the Company fails to
forward the written results of the compilation and settings, Alydaar
will perform the compilation and forward Alydaar's compilation results
and settings in writing to the Company for confirmation ("Compilation
Notice"). If the Company fails to confirm their agreement with
Alydaar's compilation results and settings in writing to Alydaar within
ten (10) days of the Compilation Notice: (a) Alydaar will perform the
Services on the Company's Software and in relation to Remediation
Services, return the Company's Software to Company compiled as set
forth in the Compilation Notice; (b) Company hereby waives any claim
that Alydaar did not perform the Service correctly as a result of
Alydaar's compilation of the Company's Software; and (c) Company
acknowledges that Alydaar shall have no liability for failures related
to Alydaar's compilation of the Company's Software.
Ex. 10.4 - 1
3. TERM AND AGREEMENT TERMINATION.
3.1 Term. The term of this Agreement begins on the Effective Date and
shall continue through _____________("Initial Term"), unless terminated
earlier as permitted by this Agreement. The Agreement shall be renewed
automatically for additional one (1) year terms after the Initial Term
("Renewal Terms"), unless either party gives at least ninety (90) day's
prior written notice of termination to the other party. Notwithstanding
termination or expiration of this Agreement, the parties agree that
each party's rights and obligations under a mutually executed Work
Order shall (a) continue and survive the termination or expiration of
this Agreement and (b) continue to be subject to the terms and
conditions of the Work Order and Agreement through completion of such
Work Order.
3.2 Default. If either party shall commit a material breach of any term
or condition of this Agreement, and if said party shall fail to cure,
or make substantial progress to cure, any such breach within forty-five
(45) days after written notice of such breach is given by the
non-breaching party, then the non-breaching party shall be entitled,
after giving written notice hereunder, to terminate this Agreement.
Upon a breach of the license restrictions or confidentiality relating
to a party's Software, the breaching party shall immediately return to
the other party all tangible portions of the Software delivered or
disclosed, together with all copies thereof at any time, except such
programs and documentation or copies thereof as the breaching party
shall then warrant in writing as having been destroyed.
4. WORK ORDERS.
4.1 Issuance. The Company and any corporation, partnership,
proprietorship or other entity in which the Company now or hereafter owns
or controls, directly or indirectly, more than fifty percent (50%) of the
stock or other interests having the right to vote or appoint directors
("Subsidiary") may, from time to time, issue Work Orders to Alydaar under
this Agreement requesting Alydaar to provide Services. Should Alydaar
accept a written Work Order from the Company or its Subsidiaries, it shall
do so by executing and returning the Work Order to the Company or its
Subsidiary, as applicable. Each Work Order accepted by Alydaar shall be
completed in accordance with the provisions of the Work Order and the
Agreement. In the event Alydaar accepts a Work Order from a Subsidiary, all
references in the Agreement to "Company" shall also be deemed to include
"Subsidiary". Any material alteration, deletion or addition to Services in
any Work Order or a change in any provision(s) of any Work Order shall be
effective only mutually agreed to by the parties in writing.
Notwithstanding the foregoing, in the event Company's or Subsidiary's
project manager submits the Company's Software to Alydaar for performance
of the Services and Alydaar performs the Services for such Company Software
without a Work Order, the parties hereby agree that the terms and
conditions set forth in this Agreement shall govern such transaction.
4.2 Term of Work Order. The term of any Work Order shall begin on the
date the Work Order is accepted and shall continue through the date on
which all Services specified in the Work Order have been completed and
Alydaar has been paid in full. Each Work Order shall be deemed to
incorporate all of the provisions of this Agreement.
5. PAYMENT.
Ex. 10.4 - 2
5.1 Payment Terms. Subject to the provisions of this Agreement, Alydaar
shall charge and Company shall pay Alydaar the rates and fees specified
in Exhibit C or any Work Order in accordance with the payment schedule
set forth in Exhibit C.
5.2 Payment of Invoices. Unless otherwise stipulated herein, Company
shall pay all invoices within thirty (30) days of the postmark date of
the invoice, or on the specified due date(s), if any specific due
date(s) for payments are stipulated herein. Alydaar reserves the right
to charge and collect a service fee equal to the lesser of (a) one and
one half percent (1-1/2%) per month or, (b) the highest interest rate
legally permitted for all amounts not paid on the due date. The Company
will also reimburse Alydaar for all collection expenses, including
reasonable attorneys' fees and court costs, for delinquent amounts. If
Company legitimately disputes any invoice amount, then Company shall
(a) pay to Alydaar the undisputed amount of the invoice, (b) provide to
Alydaar a detailed written description of the disputed amount and the
basis for the Company's dispute with such amount; and (c) cooperate
with Alydaar in promptly resolving disputed invoices. If any of
Alydaar's undisputed invoices remain unpaid for more than thirty (30)
days after the postmark date, Alydaar shall, in addition to pursuing
any other remedies it may have, be entitled to cease performing all
Services under any Work Order then in effect. Invoices shall be sent to
the following Company individual at the following
address:_________________________________________________________
____________________________.
5.3 Taxes. Except for taxes based on Alydaar's net income, Company is
responsible for and shall pay, or reimburse Alydaar, for 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 or the performance of any Services under the Agreement.
5.4 Additional Services. Other than for Services set forth in the Work
Order, Alydaar shall invoice Company, as expenses are incurred, for any
technical support or assistance requested by Company and provided by
Alydaar at Alydaar's then current standard rates. Alydaar shall charge
Company for all reasonable travel and living expenses incurred under
this Agreement.
6. DELIVERY, TESTING AND WAIVER. This Section 6 shall only apply in relation to
Remediation Services provided by Alydaar. Alydaar will deliver the Company's
Software to Company in accordance with the schedule and other requirements set
forth in the applicable Work Order. Following receipt of the Company's
Software, the Company shall have thirty (30) days ("Test Period") (a) to verify
that the Company's Software performs materially in accordance with all
specifications set forth in the applicable Work 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 "Non-Compliance").
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 Company, provided
that Company did not cause such Non-Compliance. In the event Alydaar has
received a notice of NonCompliance 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 Company 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
Company 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 and the Company
shall be barred from asserting any claim or defense of any nature against
Alydaar, including but not limited to claims for reimbursement of payments made
by the Company and defenses to a claim by Alydaar for payments due from the
Company.
Ex. 10.4 - 3
7. OWNERSHIP AND LICENSES
7.1 Ownership and License of Company's Software. Title and ownership to
the Company's Software provided by the Company or any Subsidiary to
Alydaar shall remain and belong to and be vested in the Company or such
Subsidiary, as applicable. Company and Subsidiary hereby grant Alydaar
a non-exclusive, non-transferable, royalty free license for the term of
this Agreement to use the Company and Subsidiary Software only for the
purposes of performing the Services.
7.2 Ownership of Alydaar's Software. Title and ownership to Alydaar's
Software and other proprietary information, including the SMARTCODE(R)
Software and process and any derivative works, shall remain and belong
to and be vested in Alydaar. Alydaar reserves all rights in Alydaar's
Software and its proprietary information not expressly granted to
Company in the Agreement.
7.3 License of Certain Alydaar Software. This Section 7.3 shall only
apply if Remediation Services are provided by Alydaar. As a result of
the Remediation Services, executable instructions and comments of
Alydaar's Software will be imbedded in the Company's Software
("Imbedded Software"). For the fees set forth in any Work Order,
Alydaar hereby conveys a perpetual, royalty free, non-exclusive,
non-transferable, restricted use license for the Imbedded Software to
Company. Company may maintain the Imbedded Software, provided all
changes, derivative works, modifications or improvements made or
developed with regard to the Imbedded Software shall remain the
property of Alydaar. The Imbedded Software may not be: (a) replicated,
used, distributed, copied or transferred other than where installed in
the Company's Software remediated by Alydaar, except for a reasonable
number of back-up copies, provided all proprietary, confidential and
copyright notices, markings or legends which appear on any item
included in Alydaar's Software are placed upon each such copy or
duplication; (b) rented, leased or provided for use in remote computer
services by Company for a third party; (c) changed by Company to remove
from any item included in Alydaar's Software any proprietary,
confidential or copyright notices, markings or legends placed thereon
by Alydaar; or (d) accessed except by only those employees and agents
of Company who need access thereto in order to use, implement, test,
audit, or modify the Imbedded Software. Prior to providing access to
the Imbedded Software to such sanctioned persons, Company shall take
appropriate action by instruction or agreement with the employees or
agents having access to the Imbedded Software to fulfill the Company's
obligations under this Agreement. Neither party shall knowingly
transfer, directly or indirectly, the other's Software, technical data
or the direct product of such data, to any destination subject to
export restrictions under United States law, unless prior written
authorization is obtained from the other party.
8. REPRESENTATIONS, WARRANTIES, INDEMNIFICATION AND DAMAGE
LIMITATION
8.1 Alydaar Representations and Warranties. Alydaar warrants that it
either owns or has the right to license all property included in its
Software.
8.2 Company Representations and Warranties. Company warrants that
it either owns or has the right to license all property included in
its Software.
8.3 Disclaimer of Other Warranties. THE FOREGOING SPECIFIED
WARRANTIES AND CONDITIONS ARE THE COMPANY'S AND ALYDAAR'S
SOLE WARRANTIES AND CONDITIONS UNDER THE TERMS OF THIS
AGREEMENT. THE PARTIES MAKES NO OTHER WARRANTY OR CONDITION
Ex. 10.4 - 4
OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AND ALL IMPLIED
WARRANTIES AND CONDITIONS, INCLUDING THOSE OF
MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A
PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED AND EXCLUDED BY
ALYDAAR AND COMPANY.
8.4 Limitation of Liability. ALYDAAR'S TOTAL AGGREGATE LIABILITY TO
COMPANY FOR ALL LOSSES OR DAMAGES, DIRECT OR INDIRECT, FOR ANY CAUSE
WHATSOEVER ARISING UNDER OR IN ANY WAY CONNECTED WITH THIS AGREEMENT,
INCLUDING IF ANY REMEDY IS FOUND TO FAIL OF ITS ESSENTIAL PURPOSE, AND
REGARDLESS OF THE FORM OF ACTION SHALL NOT EXCEED THE FEES PAID BY
COMPANY TO ALYDAAR IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE
DATE OF THE LOSS OR DAMAGE.
8.5 Disclaimer of Damages. IN NO EVENT SHALL ALYDAAR BE LIABLE TO
COMPANY OR ANY THIRD PARTY 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 ALYDAAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
8.6 Indemnification. 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) any Software infringes a patent, trademark, copyright
or trade secret of a third-party and (b) a breach of Sections 8.1 or
8.2 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
by the Indemnified Party without the written consent of the
Indemnifying Party. The Indemnifying Party shall not be liable to the
Indemnified Party under the terms of this Section 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. CONFIDENTIALITY. The parties acknowledge that in the course of the Service
being performed under this Agreement, both parties will become familiar with
proprietary information of the other concerning the other's Software, business
affairs, property, methods of operation, processing system or other information,
("Confidential Information"). Each party shall (a) not disclose the other
party's Confidential Information without such party's written consent and (b)
maintain the confidentiality of this Agreement and of any Confidential
Information using at least the degree of care and security as each uses to
maintain the confidentiality of its own Confidential Information. Information
shall not be considered confidential under this Section that: (i) is publicly
known prior to or after disclosure hereunder other than through acts or
omissions attributable to the recipient or its employees or representatives;
(ii) as demonstrated by prior written records, is already known to the recipient
at the time of disclosure hereunder; (iii) is disclosed in good faith to the
recipient by a third party having a lawful right to do so; or (iv) is the
subject of written consent of the party which supplied such information
authorizing disclosure. The parties acknowledge that their disclosure of any of
the other party's Confidential Information without the other's prior written
consent, may give rise to continuing irreparable injury to the non-disclosing
party, that, therefore, will be inadequately compensable in damages at
Ex. 10.4 - 5
law. Accordingly, the non-disclosing party shall be entitled to seek immediate
injunctive relief against the breach or threatened breach by the disclosing
party of any of the foregoing undertakings, in addition to any other legal
remedies which may be available.
10. APPLICABLE LAW. The validity, interpretation and construction of this
Agreement, and any issue relating to the enforcement of this Agreement, shall be
governed by the laws of the state of North Carolina, without reference to its
principles of conflicts of law.
11. NOTICES. All notices required or permitted to be given under this Agreement,
shall be in writing and deemed to be properly given upon the date first actually
received by the intended recipient through one of the following methods: (a)
delivery in person, (b) facsimile with confirmation, provided that any notice
sent by facsimile shall also be sent by one at the other methods set forth in
this Section 11, (c) the United States mail with first class postage prepaid, or
(d) private, prepaid courier. All notices to be given under this Agreement shall
be given as set forth below:
Company Alydaar
..................................... Alydaar Software Corporation
Attn: ............................ Attn: Chief Operating Officer or
President
Copy: ........................... Copy: General Counsel
............................ 0000 Xxxxxxx Xx., Xxxxx 000 Xxxx
............................ Xxxxxxxxx, XX 00000
Phone: ............................ Phone: (704) 365-2324 ext. 2005
Fax: .......................... Fax: (000) 000-0000
12. SURVIVORSHIP. The provisions of Sections 3.2, 5, 7, 8.3, 8.4, 8.5, 8.6,
9-16, and 19-21 of this Agreement shall survive any expiration or termination of
this Agreement or any Work Order.
13. ASSIGNMENT. Either 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
Services set forth herein, provided that Alydaar shall remain responsible for
the provision and performance of such Services by its subcontractor(s).
14. MODIFICATIONS. Any alteration, deletion or addition to any of the terms of
this Agreement shall only be effective if made in writing and duly executed by
the Company and Alydaar.
15. NO WAIVER. No delay or omission on the part of either party in exercising
any right hereunder or under any Work Order shall operate as a waiver of such
right or any other right under this Agreement or the applicable Work Order,
provided that nothing in this Section shall void or extend any time limit set
forth in this Agreement or any applicable Work Order with respect to the taking
of any action by Alydaar.
16. NON-RECRUITMENT OF EMPLOYEES. Alydaar and Company recognize and acknowledge
that employees who are engaged in electronic data processing activities possess
special, unique and extraordinary technical talents which are in great demand in
the present economy and further recognize and acknowledge that each party has
incurred substantial expense in recruiting and training such employees and would
incur even greater expense if required to replace any such employee. Therefore,
both parties agree not to recruit or employ, either directly or indirectly, a
present employee of the other party during the term of this Agreement and one
(1) year after without the other party's prior written consent.
Ex. 10.4 - 6
17. RELATIONSHIP BETWEEN THE PARTIES. Alydaar and Company are independent
principals in all relationships and actions under and contemplated by this
Agreement. This Agreement shall not be construed to create any employment,
partnership, joint venture, or agency relationship between the parties.
18. PUBLICATION PERMISSION. Each party's execution of this Agreement shall
signify its approval for the other party to release non-confidential information
including the party's name, location and business relationship in standard news
releases, provided the parties mutually agree to the wording of such release
prior to its publication.
19. FORCE MAJEURE. Neither party shall be held responsible for any act, failure,
event, or circumstance addressed herein if such act, failure, event, or
circumstance is caused by conditions beyond such party's reasonable control,
whether such event was foreseeable or not.
20. LIMITATIONS OF ACTIONS. No claim or action concerning, related to, or
arising out of this Agreement or any breach of or default under this Agreement,
may be commenced by either party more then one year after the occurrence of any
such breach or default.
21. ENTIRE AGREEMENT. This Agreement, together with all Exhibits, Attachments
and Schedules hereto, constitutes the entire agreement and understanding between
Alydaar and Company concerning the subject matter hereof, and cancels,
terminates and supersedes all prior written and oral understandings, agreements,
proposals, promises and representations of the parties respecting any and all
subject matter contained herein.
IN WITNESS HEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
Alydaar Software Corporation ....................................
----------------------------
By: ......................... By: ...........................
Name:............................. Name:...............................
Title: ......................... Title: ...........................
Ex. 10.4 - 7
EXHIBIT A
Exhibit A.1-Services Description for Remediation Services
Exhibit A.2-Services Description for Audit Services
Ex. 10.4 - 8
EXHIBIT A.1
SERVICES DESCRIPTION FOR REMEDIATION SERVICES
1.0 SCOPE: This document describes the remediation Services Alydaar will provide
for Company using the windowing technique in order to attempt to render the
Company's Software Year 2000 compliant. Except as set forth in any Work Order,
Remediation Services do not include remediation of production JCL, programming
of external date routines for data ordering, database analysis and conversion
activity or bridging for date variables associated with database calls. In
addition, this document contains the packaging responsibilities for the
Company's Software.
2.0 PACKAGING: It is the responsibility of Alydaar to provide the Company with
written packaging guidelines for the transfer of the Company's Software to
Alydaar. Alydaar's Services are dependent upon the Company packaging the
Company's Software code in accordance with the packaging guidelines. Alydaar's
Client Manager assigned to Company will provide any phone assistance needed to
help or clarify specific issues.
3.0 ALYDAAR SERVICES
Alydaar will perform the following services:
Supply a rules questionnaire along with a list of packaging
requirements in order that the remediation can begin. Upon receipt
of a completed rules questionnaire and correctly packaged Company
Software along with a related letter of transmittal, the project
activities will begin.
Resources are assigned and a contact list is delivered to Company.
An initial compile is completed on the Company's
Software. Inventory and Line Count Reports are generated and
delivered to the Company. 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
Company's Software code to search for special remediation cases.
These issues may include hard-coded 19's, year-related 88 levels,
report writer variables, and Company-inserted century
determination. From this assessment Alydaar will generate a
Evaluation and Issues Document identifying issues that require
Company feedback. In response to the Evaluation and Issues
Document, Company needs to provide all resolutions in order for
the remediation to proceed. The resolution of issues identified in
Evaluation and Issues Document becomes the requirements for
Company.
Next,the Company's Software will be submitted to the SMARTCODE(R)
process and 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 Company's
Software to fail in the Year 2000 and beyond. Alydaar will
remediate the Company's Software when these nominated variables
are used. All other solutions will be applied as a result of the
Company's response to the Evaluation and Issues Document.
When all modifications are completed Alydaar will perform a second
compile. Upon completion Alydaar will generate the Final Report to
accompany the remediated Company's Software and Alydaar Software
library modules.
Ex. 10.4 - 9
EXHIBIT A.2
SERVICES DESCRIPTION FOR AUDIT SERVICES
1.0 SCOPE: This document describes the services Alydaar will provide for
Company. Alydaar will use the SmartCode software in order to audit but not
remediate the Company's Software for Year 2000 compliance. In addition, this
document contains the packaging responsibilities for the Company's Software.
2.0 PACKAGING: It is the responsibility of Alydaar to provide the Company with
written packaging guidelines for the transfer of the Company's Software to
Alydaar. Alydaar's Services are dependent upon the Company packaging the
Company's Software code in accordance with the packaging guidelines. Alydaar's
Client Manager assigned to Company will provide any phone assistance needed to
help or clarify specific issues.
3.0 ALYDAAR SERVICES
Alydaar will perform the following services:
Supply a rules questionnaire along with a list of packaging
requirements in order that the audit can begin. Upon receipt of a
completed rules questionnaire and correctly packaged Company
Software along with a related letter of transmittal, the project
activities will begin.
Resources are assigned and a contact list is delivered to Company.
An initial compile is completed on the Company's Software.
Alydaar will perform one of three (3) types of audits.
Each type of audit will be performed using the SmartCode
software. The SmartCode software will search for failure
points within the Company's Software which will cause the
Company's Software not to be Year 2000 compliant, such as
hard-coded 19's, year-related 88 levels, report writer
variables, and Company-inserted century determinations.
The three (3) types of audits are as follows
1) Option 1. In this audit Alydaar searches for Year 2000
failures on a file by file basis. Upon the first instance of
Alydaar finding a Year 2000 failure in a file, all audit
activity on that file will cease. Alydaar will then go to the
next file to search for Year 2000 failures. Alydaar does not
perform any database assessment. From this audit Alydaar will
generate a final report identifying which files passed or
failed the audit. 2) Option 2. In this audit Alydaar performs
a line by line audit of every Year 2000 failure point in an
Company's Software. Alydaar does not perform any database
assessment. From this audit Alydaar will generate a final
report identifying each location of a Year 2000 point of
failure within Company's Software. 3) Option 3. In this audit
Alydaar performs a line by line audit of every Year 2000
failure point in Company's Software and including a database
assessment for failure points. From this audit Alydaar will
generate a final report identifying each location of a Year
2000 point of failure within Company's Software and the
database.
A Final Audit Report is sent to the Company. The Final Audit Report
contains separate Inventory and Line Count Reports and the audit
results. The Line Count Report will be for all programming modules
audited. This line count is broken down into executable,
commented, and blank lines.
Ex. 10.4 - 10
EXHIBIT B
SAMPLE WORK ORDER
Exhibit B.1-Sample Work Order for Remediation Services
Exhibit B.2-Sample Work Order for Audit Services
Ex. 10.4 - 11
EXHIBIT B.1
SAMPLE WORK ORDER (REMEDIATION)
This Work Order Number _ _, dated ________________, is issued pursuant to the
Continuing Services Agreement ("Agreement") between Alydaar Software Corporation
("Alydaar") and __________________________________ ("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 Work Order, the provisions of this Work
Order shall control.
ALYDAAR DELIVERABLES
Rules questionnaire and packaging requirements;
Initial Inventory and Line Count Reports;
Evaluation and Issues Document;
Final Project Plan;
Request for Company approval of remediation specifications;
Final Report; and
Remediated Company Software files and required Alydaar Software library modules.
FEES AND PAYMENT
Remediation price per Language/per Line of Code:
Language:______________ Price per LOC:_$________________ Estimated number of
Lines of Code ("LOC") of each Language:
Language:______________ # of LOC:_________________
Estimated Total Remediation Fee:_____________________. Payable in accordance
with the payment schedule set forth in the Agreement or as set forth below.
PROJECT MILESTONES
1. Receive all components of the correctly packaged Company Software.
2. Alydaar resources are assigned.
3. Initial Inventory and Line Count Reports delivered.
4. All required Company Software received.
5. Initial compile complete and final project plan schedule created.
6. Receive resolutions to the findings of the Evaluation and Issues Document.
7. Return of remediated Company Software and delivery of the Final Report.
ASSUMPTIONS
The schedule for the Project Milestones shall be determined in a Final Project
Plan delivered as set forth in item 5 above.
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 and this Work Order.
The final number of Lines of Code and any additional languages not set forth
above will be set forth in the Inventory and Line Count Reports. This final
Line of Code number will be multiplied by the price per LOC to arrive at
the final Total Remediation Fee. Prices per LOC for languages not set forth
above will require mutual agreement as to price per LOC prior to remediated
code being returned to Company.
Alydaar Software Corporation ....................................
By: ............................ By:.................................
Name:................................ Name:...............................
Title: ............................ Title:..............................
Ex. 10.4 - 12
EXHIBIT B.2 SAMPLE WORK ORDER (AUDITS)
This Work Order Number _ _, dated , is issued pursuant to the Continuing
Services Agreement ("Agreement") between Alydaar Software Corporation
("Alydaar") and ("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 Work Order,
the provisions of this Work Order shall control.
ALYDAAR DELIVERABLES
Evaluation and Issues Document;
Final Project Plan;
Final Audit Report containing the following:
Audit results;
Listing of Company Software modules audited; and
Line of Code counts broken down into comments, executables, and blank
lines.
FEES AND PAYMENT
Audit Option (Check One)
Option 1: ____________
Option 2: ____________
Option 3: ____________
Audit price per Language/per Line of Code:
Language: # of LOC:
Estimated number of Lines of Code of each Language:
Language: # of LOC:
Estimated Total Audit Fee: $ . Payable in accordance with the payment schedule
set forth in the Agreement or as set forth below.
PROJECT MILESTONES
1. Receive all components of the correctly packaged Company Software.
2. Alydaar resources are assigned.
3. All required Company Software received.
4. Initial compile complete and final project plan schedule created. 5. Delivery
of Evaluation and Issues Document 6. Responses to Evaluation and Issues Document
7. Delivery of Final Audit Report
ASSUMPTIONS
The schedule for the Project Milestones shall be determined in the Final
Project Plan. The Audit Services will be performed by Alydaar at Alydaar's
location in accordance with the description of services set forth in the
Agreement and this Work Order. The final number of Lines of Code will be set
forth in the Final Audit Report. This final Line of Code number will be
multiplied by the price per LOC to arrive at the final Total Audit Fee. Prices
per LOC for languages not set forth above will require mutual agreement as to
price per LOC prior to audited code being returned to Company.
Alydaar Software Corporation ....................................
By: ............................ By:.................................
Name:................................ Name:...............................
Title: ............................ Title:..............................
Ex. 10.4 - 13
EXHIBIT C
FEES AND PAYMENTS
1. Remediation Services. The fees and payments set forth in this Section are for
the Remediation Services. A "Line of Code" is defined as a segment of
non-comment code delineated by carriage returns (blank lines and comments are
not counted for inventory or pricing purposes). The payment schedule for such
remediated Company Software shall be as follows:
Sixtypercent (60%) of the total billable amount for remediating a Logical
Working Unit ("LWU") of Company's Software is due upon Alydaar's receipt of
such LWU.
Thirty percent (30%) of the total billable amount for remediating a LWU is due
upon delivery of the remediated LWU to Company.
Ten percent (10%) of the total billable amount for remediating a LWU is due
upon the earlier of: (a) the end of the Test Period in accordance with
Section 6 of the Agreement for such LWU; or (b) thirty (30) days following
delivery of the remediated LWU to Company.
PRICING TO BE DETERMINED
2. Audit Services: The fees and payment set forth in this Section are for the
Audit Services. The fees for Audit Services are based on the Lines of Code
received by Alydaar and invoiced 80% upon delivery of the Company's Software to
Alydaar and 20% upon return of the Final Audit Report to Company.
PRICING TO BE DETERMINED
Ex. 10.4 - 14
