EXHIBIT 10.51
SOFTWARE CONSULTING AGREEMENT
THIS AGREEMENT between Xxxxx, Xxxxxxxx Consulting LLC, a California
limited liability company having its principal place of business in San Jose, CA
("FRC"), and EIS Inc., a California corporation having its principal place of
business in Mountain View, CA, ("Client"), is entered into and made effective as
of June 1, 1998.
WHEREAS, Client desires to purchase a certain software package
manufactured by Great Plains Software and to engage a software installer to
assist Client to install said package; and
FRC is a value-added reseller for Great Plains Software and also
provides installation and consulting services;
NOW, THEREFORE, Client desires to purchase the software and consulting
services described below from FRC and FRC desires to sell the software and
provide the consulting services to Client in accordance with the terms and
provisions set forth herein;
ARTICLE I - ENGAGEMENT
Client hereby agrees to purchase the software and hereby engages FRC
to render the services (the "Services") described below in accordance with the
terms and specifications provided herein.
A. PROJECT SCOPE.
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1. PURCHASE AND SALE OF SOFTWARE.
FRC shall sell and Client shall purchase the following software
components (referred to as "Dynamics SQL modules") manufactured by Great Plains
Software for the SQL database at the following prices:
SOFTWARE COSTS
The following lists the software necessary to meet your needs, prices
reflect 50 concurrent users for Dynamics SQL:
1) GP & Service Advantage System Manager & Report Writer (50
concurrent users) $108,000.00
2) General Ledger w/Frx Advanced $ 17,000.00
3) Intercompany (included in General Ledger) --
4) Multidimensional Analysis (included in General Ledger) --
5) Receivables Management $ 7,500.00
6) Payables Management $ 10,000.00
7) Bank Reconciliation (included in Payables Mgmt.) --
8) Inventory Control $ 10,000.00
9) Purchase Order Processing $ 10,000.00
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10) Sales Order Processing with Invoicing $ 10,000.00
11) Project Cost with time and Billing $ 15,000.00
12) Service Call Management $ 15,000.00
13) Preventive Maintenance $ 5,000.00
14) Depot Repair Management $ 15,000.00
15) Returns Management $ 10,000.00
16) Contracts Administration $ 10,000.00
17) GP Dynamics Order $ 10,000.00
18) Dynamics Service Center $ 10,000.00
19) Internet $ 30,000.00
75 Web Connections- No Charge- See Below
20) GP Enhancement Fee SQL $ 43,875.00
Software Subtotal $336,375.00
Trade Discount $ 59,280.31
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Subtotal $277,094.69
Tax (8.25%) $ 22,860.31
Shipping $ 45.00
Grand Total $300,000.00
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ENHANCEMENT PLAN:
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The Enhancement Fee is fifteen percent (15%) of the software list
price per year and is required by Great Plains. This Enhancement Program
provides you:
A. Periodic software releases that incorporate minor refinements as
well as significant new product features
B. Access to the Dynamics C/S+ SQL Expert Bulletin Board Service
C. Access to an automated fax-on-demand service
D. Quarterly newsletters and technical bulletins
E. An assigned Customer Satisfaction Manager ("CSM") available at
the customer's discretion to discuss issues, concerns, questions
and upcoming challenges.
F. An orientation meeting with a CSM to familiarize the customer
with our support practices, our development practices, and our
organization.
G. Access to a secure section on Great Plains' Home Page available
to Dynamics C/S+ SQL for Microsoft SQL Server customers and
Partners.
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2. IMPLEMENTATION PLANNING.
FRC shall assist Client to design and implement a written
implementation plan which identifies the order of the Dynamics SQL modules to be
installed at the Client's principal place of business, the necessary testing for
each module, the parallel processes/tasks that need to be run, and the training
plan for the client's staff.
3. NETWORK SYSTEM REVIEW.
FRC shall assist Client to perform a systematic review of the
hardware, software and operating system components and shall document the
findings. FRC shall assist Client to correct all deficiencies identified in the
review before implementing client/server applications. The parties agree that
this approach should minimize problems both before and after implementation.
A typical systematic review of the hardware, software and operating
system components includes a review of the following: critical server
initialization files, volume analysis, access and security issues, network
operating system library and driver files, client operating systems and network
shell files, workstation performance, memory, and volume issues, software
management program, virus protection, backup strategies and procedures
4. INSTALLATION AND SETUP.
FRC shall assist Client to install the Great Plains Dynamics SQL
modules onto Client's server. FRC shall initialize the database so that Client
will have a starting point for setting up the Client data designed around the
Client's needs. FRC shall then assist Client to configure all of the Client's
workstations that Client requires be accessible to the Great Plains Dynamics SQL
modules.
5. DATA CONVERSION.
FRC shall assist Client to convert the Client's existing accounting data into
Great Plains Dynamics SQL modules. Some of this may be accomplished
electronically and some may be accomplished manually.
6. MODULE IMPLEMENTATION AND TRAINING.
FRC shall assist Client to install and set up the Dynamics SQL
modules. FRC shall work with the Client to identify and create a coding scheme
for master records (chart of accounts, vendors, customers, etc.) that is
acceptable to Client and shall assist the Client in setting up the master
records. FRC shall train the Client's staff to use the Dynamics SQL modules.
This training shall include how to enter data, perform key processes, print
needed reports and close the modules.
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7. SOFTWARE MODIFICATION AND INTEGRATION DETAIL DESIGN.
No software modification or integration with other systems is included
in the Project Scope of this Agreement or the consulting fee estimate.
8. SYSTEM IMPLEMENTATION AND TEST.
FRC shall assist Client to plan, design and document procedures for
testing, training, system test, data conversion and post cutover follow up. FRC
shall train Client's staff computer professionals in the testing procedures. In
order for the system implementation and testing procedures to be effective, FRC
requires Client to communicate its objectives to make Client's staff available
for frequent status and design meetings with the Client to confirm findings and
project approach and to facilitate the decision process on the numerous issues
that will surface.
ARTICLE II. - CLIENT COOPERATION
Client shall assist FRC by promptly providing such equipment necessary
for FRC's Employees to render the Services in a manner which conforms to FRC's
standard practices. If Client is unable to provide such equipment, FRC may
acquire such equipment and add the acquisition cost to its xxxx to Client.
Client shall also promptly provide information and access to the facilities of
Client to FRC as FRC may reasonably request.
ARTICLE III. - PRICE AND PAYMENT
A. PROFESSIONAL FEES: The fees for FRC's services will be billed as
time is incurred at FRC's standard rates for the personnel assigned to the
project, plus direct expenses. These rates vary from $100 per hour for a staff
consultant to $250 per hour for a principal. Travel time will be charged at $50
per hour. FRC estimates the fees for the tasks described in the Project Scope to
range between $125,000 and 175,000. These fees are impacted by the complexity
and uniqueness of procedures and processes found in the existing systems that
need to be documented, evaluated and incorporated in the new system. We will
gain your approval prior to incurring fees above the estimate.
B. SOFTWARE COSTS: Client shall pay FRC for the Dynamics SQL
Accounting modules as shown above.
C. COSTS: Client shall also reimburse FRC for FRC's costs incurred
in providing the consulting services described herein as enumerated below
("Reimbursable Costs").
1. Reasonable and ordinary direct expenses such as travel, supplies,
communications, etc.
2. Equipment acquisition as described above.
3. Any other expenses as agreed by FRC and Client.
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D. PAYMENT: Client shall pay for all software in full in advance
upon the signing of this contract. FRC shall xxxx Client for fees for Services
and Reimbursable Costs on a weekly basis. Client shall pay said bills net 15
days from the end of the week in which fees were incurred. Unpaid bills are
subject to a 1 percent (1%) per month (12 percent per year) late charge if not
paid within 30 days. In addition to the late charge, FRC reserves the right to
terminate all work if payment is in arrears for more than thirty (30) days.
Client shall also pay FRC a retainer in the amount of ten thousand dollars
($10,000) which shall be held by FRC for Client's account until the project is
complete at which time it shall be applied to payment of Client's final xxxx.
ARTICLE IV. - OWNERSHIP
Nothing contained herein shall be construed as limiting FRC's rights
to use or market any of its intellectual property, including but not limited to
methodologies, workplans, functional and technical architecture, as well as pre-
existing materials and related documentation, without obligation of any kind to
Client.
FRC shall grant Client an irrevocable, nonexclusive license to use all
original materials created by FRC for Client pursuant to this Agreement.
ARTICLE V. - DOCUMENTATION
The software manufacturer provides documentation which describes the
functions of the software. Client shall create and provide its staff written
procedures describing how Client will use the software on a day to day basis.
These procedures should include coding schemes, which system transactions are
used for specific business events, handling of exceptions and use of specific
data fields including user-defined fields. If requested, FRC will review and
comment on these procedures.
ARTICLE VI. - REPRESENTATIONS AND WARRANTIES
Client should be aware that with respect to the software purchased
herein NO WARRANTIES OF ANY KIND, WHETHER STATUTORY, WRITTEN, ORAL OR IMPLIED
(INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY),
SHALL APPLY OTHER THAN ANY WARRANTIES WHICH ARE PROVIDED DIRECTLY BY THIRD PARTY
SOFTWARE MANUFACTURER(S).
ARTICLE VII. - COMMUNICATION AND ONGOING PERFORMANCE REQUIREMENTS
FRC shall assist Client run regular status meetings for the duration
of the project. The basic agenda for status meetings may typically include the
following discussion areas: progress vs. the implementation plan and timeline,
personnel & staffing issues, FRC and Client obligations, scope creep, budgeted
cost variances, use of other consultants, facility and equipment discussion, new
project assumptions, review of deliverables, Client communication, change
management, and other project management issues.
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ARTICLE VIII. - INDEMNIFICATION
FRC and Client shall each indemnify, defend and hold the other,
including its officers, directors, employees and agents, harmless (except to the
extent the indemnified party is compensated by insurance) against all losses,
claims, damages, or liabilities (including but not limited to interest,
penalties and reasonable attorneys fees) that the other party may suffer or
incur by reason of the Indemnifying Party's acts or omissions related to the
services and software described in this Agreement
ARTICLE IX. - SALES AND USE TAX
Client shall pay for or reimburse FRC for any sales, use, excise,
occupation, privilege, value-added or similar taxes charged to Client or
incurred by FRC as a result of Client's purchase of software and consulting
services hereunder. Client reserves the right to review and dispute any such
taxes.
ARTICLE X. - CONFIDENTIAL INFORMATION
Certain information furnished or disclosed by FRC or Client to the
other in connection with the performance of their respective obligations under
this Agreement may contain or reflect confidential information with respect to
FRC or Client. "Confidential Information," for the purposes of this Agreement,
shall include but shall not be limited to the information identified in ARTICLE
I and such other information as shall, at the time it is furnished to Client or
FRC by the other, be conspicuously marked "CONFIDENTIAL." Neither FRC nor Client
shall designate any information or data as Confidential Information that is not
reasonably and in good faith considered to be confidential and proprietary to
the party making such designation.
Confidential Information provided by either party to the other shall
be used exclusively by the party receiving the confidential information in
connection with the Project. Both parties agree that it will not disclose any
Confidential Information to any third party other than as specifically provided
herein without the other party's prior written consent.
Client shall use its best efforts to furnish FRC, free of
restrictions, the information required to be furnished FRC under this Agreement.
Confidential Information required to be furnished by Client shall be used by FRC
exclusively in connection with the performance of FRC's obligations under this
Agreement. Such information shall not be disclosed to any person other than
FRC's employees, agents or subcontractors without Client's written consent.
The obligations of confidentiality and non-disclosure imposed under
this Article shall not apply to the following data and information:
i. Information that is published or otherwise becomes available to
the general public as part of the public domain without breach of
this Agreement;
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ii. Information which has been furnished or made known by a third
party which is not known to involve a breach of the third party's
obligations to FRC or Client;
iii. Information which was in the receiving party's possession
without proprietary restrictions prior to the date of disclosure
to that party;
iv. Information, which the receiving party establishes was developed
independently of Confidential Information, furnished to it;
v. General information of a nonproprietary nature; and
vi. Client's name used only in FRC marketing materials.
ARTICLE XI. - CLIENT CONTROL OVER FRC PERSONNEL
Client shall have the right of reasonable control over the FRC
personnel assigned to the project. "Reasonable control" shall include but shall
not be limited to the ability to request a replacement.
ARTICLE XII. - EMPLOYEE SOLICITATION
During the term of the Agreement and ending two years after all
services to be provided hereunder have been performed, neither party nor its
Affiliates will intentionally offer work to, solicit or induce for employment,
employ, or contract with, personnel of either party assigned to the engagements
covered by this Agreement, without first obtaining the written consent of the
other party. For purposes of this paragraph the term "Affiliate" shall be deemed
to include any person or entity which is directly or indirectly (i) owned or
controlled by the party in question, (ii) owns or controls such party or is
(iii) owned or controlled by any person or entity described in clause (ii) of
this sentence.
ARTICLE XIII. - TERMINATION
In addition to FRC's right to terminate work for non-payment, FRC and
Client shall have the right to terminate this Agreement at any time upon 30 days
prior written notice to the other party. FRC shall cooperate with Client to
provide for an orderly transition of FRC's services to Client at the time of any
such termination. Promptly after the date of any such termination. FRC shall
render a final billing to Client and Client shall pay the same in accordance
with Article III. The terms and conditions herein on Representations and
Warranties, Indemnification, Confidential Information, Employee Solicitation and
Dispute Resolution shall survive termination of this Agreement.
ARTICLE XIV. - DISPUTE RESOLUTION, MEDIATION AND ARBITRATION
A. DISPUTE RESOLUTION: In the event of any dispute between Client
and FRC hereunder, the parties shall first attempt to resolve the dispute at the
department level or their equivalent representing Client and the Project
Manager, or their replacement(s) representing
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FRC. If the dispute is not resolved at this level within two (2) business days
of the date the other party is first informed of the dispute in writing, the
parties shall attempt to resolve the dispute at the Vice President level their
equivalent representing the Client and Xxxxxx Xxxxx representing FRC. If the
dispute is not resolved at this level within another five (5) business days the
parties shall attempt to resolve the dispute at Senior Management level, with
the President and Chief Executive Officer of Client representing Client and
Xxxxxx Xxxxx representing FRC. The use of the foregoing procedure is a condition
precedent to the commencement of any mediation, arbitration or other legal
proceedings hereunder.
B. MEDIATION: Any and all disputes between Client and FRC hereunder
which have not been resolved within thirty (30) days by use of the foregoing
dispute resolution procedures set forth in Subsection A above shall be subject
to mediation in accordance with the Commercial Mediation Rules of the American
Arbitration Association. The use of the foregoing procedure is a condition
precedent to the commencement of any binding arbitration or other legal
proceeding hereunder.
C. ARBITRATION: Any and all disputes between Client and FRC
hereunder which have not been resolved by use of the foregoing dispute
resolution or mediation procedures set forth in Subsections A and B above shall
be resolved by binding arbitration in California under the Expedited Commercial
Rules of the American Arbitration Association, by three arbitrators, each of
whom shall be an attorney at law. Pre-trial discovery rules shall apply to such
arbitration. The arbitrators shall issue a written statement of Findings of Fact
and Conclusions of Law underlying their decision and shall include in their
award the reasonable attorneys' fees, expert fees and costs of the prevailing
party. At the option of either party, proceedings involving third parties and
related subject matters may be consolidated for hearing and award with any
arbitration brought under this provision, and the other party hereby irrevocably
consents to such consolidation. During the pendency of any such dispute,
mediation, or arbitration under Subsections A, B and C herein, FRC may continue
to perform its obligations under this Agreement, provided Client consents. The
use of the foregoing procedure is a condition precedent to the commencement of
any legal proceeding hereunder.
D. INJUNCTIVE RELIEF. Notwithstanding anything else to the contrary
included in this Article, in the event of a dispute between the parties
hereunder, either party hereto may bring a claim for injunctive relief against
the other party.
ARTICLE XV. - MISCELLANEOUS
A. GOVERNING LAW: This Agreement shall be governed by and construed
in accordance with the laws of the State of California as though all acts or
omissions related hereto occurred in such state. This Agreement shall not be
construed against the party preparing it, but shall be construed as if both
parties jointly prepared it. Venue for any dispute resolution including
mediation, arbitration or other method shall be Santa Xxxxx County, California.
B. INTEGRATION AND AMENDMENT: This Agreement contains the complete
agreement between the parties. All previous and collateral agreements (including
letters of intent or purchase orders issued by Client), representations,
warranties, promises and conditions
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relating to the subject matter of this Agreement are superseded by this
Agreement. Any understanding, promise, representation, warranty or condition not
incorporated in this Agreement shall not be binding on either party. This
Agreement may only be amended by a writing signed by both parties.
C. WAIVER: Waiver by a party of any default by the other shall not be
deemed a waiver of any other default irrespective of whether such default is
similar.
D. NOTICES: All notices, consents and approvals given under this
Agreement shall be in writing and shall be delivered in person, by first class
or express mail, telegram or other telegraphic means or facsimile addressed as
follows:
If to FRC:
Xxxxxxx X Xxxxxxxxx
Xxxxx, Xxxxxxxx Consulting, LLC
000 Xxxx Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
If to Client:
Xxx XxXxxx
EIS Inc.
000 Xxxx Xxxx Xx.
Xxxxxxxx Xxxx, XX 00000
Either party may change its address or addressee for the purposes of
this paragraph by notice. Notice given in accordance with this paragraph shall
be deemed given when received.
E. INDEPENDENT CONTRACTOR: Each party to this Agreement shall be
deemed an Independent Contractor with respect to the other. No provision of this
Agreement or any act of the parties pursuant to this Agreement shall be
construed to express or imply a joint venture, partnership, or relationship
other than vendor and purchaser of the Services described in this Agreement. No
employee, agent or other representative of either party shall at any time be
deemed to be under the control or authority of the other party, or under the
joint control of both parties. Each party shall be fully liable for all workers'
compensation premiums and liability, federal, state and local withholding taxes
or charges with respect to its respective employees, and each agrees to save the
other harmless from any claims brought against the other in respect thereto.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
XXXXX, XXXXXXXX CONSULTING LLC
By: /s/ XXXXXX XXXXX
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Title: Principal
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EIS Inc.
By: /s/ XXXXXX XXXXXXX
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Title: Vice President Operations
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