EXHIBIT 10.17
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SALES AND SERVICE AGREEMENT
This Sales and Service Agreement (this "Agreement") is made this 6th day of
July 2001, (the "Effective Date) by and between EssTec Inc. (the "Consultant")
and Physician Mobile Medical Group Inc (the "Customer").
A G R E E M E N T:
1. SERVICES TO BE RENDERED. The Consultant will perform web
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development work for the Customer as more particularly described in Exhibit A,
which is attached hereto and incorporated into this Agreement. All services
provided by the Consultant to the Customer are defined as the "Services," any
and all resulting work product is the "Product," and any task discretely listed
on Exhibit A, attached hereto, is the "Task") If Exhibit A lists an estimated
date or time for completion ("Estimated Completion Date") for any Task, the
Consultant shall use best efforts to complete the Task by such Estimated
Completion Date. However, the Consultant cannot guarantee that any Task will be
complete on the Estimated Completion Date. If Exhibit A does not list any
Estimated Completion Date for any Task, the Consultant will use best efforts to
complete such Task within a reasonable period of time.
2. PAYMENT OF FEES. In consideration of the Services, the Customer
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shall pay Consultant, the fees (the "Fees") more particularly described in
Exhibit B, which is attached hereto and incorporated into this Agreement.
3. OWNERSHIP OF WORK. The ownership of original source codes, design
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templates, workflow charts, artwork, including sketches and any other materials
created in the process of creating the product, shall remain with The
Consultant.
4. INDEMNIFICATION.
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(a) INDEMNIFICATION BY CUSTOMER. The Customer agrees to indemnify,
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defend and hold the Consultant, it's owners and its agents, officers, directors,
lawyers, accountants, and employees, harmless from and against any and all
losses, claims, demands, damages, liabilities, costs and expenses, including but
not limited to reasonable attorneys' fees and the costs of any legal action
arising from Customer's web site(s) or Customer's use of the Services. Such
indemnification shall include, but not be limited to, claims for libel, slander,
infringement of copyright, theft of misappropriation of intellectual property,
or unauthorized use of any trademark, trade name, or service xxxx.
(b) INDEMNIFICATION BY CONSULTANT. Except as otherwise herein
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provided, the Consultant agrees to indemnify, defend and hold the Customer and
its agents, officers, directors, lawyers, and accountants harmless from and
against any and all losses, claims, demands, damages, liabilities, costs and
expenses, including but not limited to, reasonable attorneys' fees and costs of
any legal action (but excluding consequential damages) arising from the
Consultant's gross negligence in the course of providing the Services under this
agreement. In no event will the Consultant be liable for lost or damaged data,
loss of business, or anticipatory profits, or any other consequential or
incidental damages resulting from the use or operation of the Services or the
maintenance thereof.
5. LIMITATION OF DAMAGES. The Consultant will endeavor to provide high
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quality Services and a high quality Product. However, the Consultant is not,
and will not be responsible for any consequential or incidental damages
resulting from any malfunctioning of Customer's web site resulting form
Consultant's Services, including, but not limited to, any interruptions of
service, or data loss (including lost transactions) regardless of whether such
damages arose from Consultant's negligence. Although the Consultant will
endeavor to safeguard any data provided by the Customer, the Customer agrees
that it is responsible for safeguarding its data, including maintaining backup
data sets.
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6. TERMINATION OF AGREEMENT.
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(a) MATERIAL BREACH. If either party is in material breach this
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Agreement, the non-breaching party may serve the breaching party with a written
notice specifying the material breach and requesting the breaching party to cure
it. If the breaching party fails to cure the material breach within ten (10)
days after its receipt of the notice, the non-breaching party may terminate this
Agreement by sending a written notice of termination to the breaching party.
The termination of this Agreement shall take effect immediately on the receipt
of such notice of termination by the breaching party.
(b) TERMINATION ABSENT A BREACH. Neither party shall have the ability
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to unilaterally terminate the Agreement, except as specifically permitted by
provisions of this Agreement. A party specifically granted the ability to
terminate this Agreement for any reason not covered by subsection (a) of this
Paragraph, may exercise this right by sending the other party a written notice
stating that it is terminating the Agreement and citing the specific paragraph
and subparagraph providing the party with the ability to terminate the
Agreement. The termination of this agreement shall take effect thirty (30) days
following the other party's receipt of this notice. This sub-paragraph shall
not apply to any termination arising from a material breach.
(c) EFFECT OF TERMINATION. On any termination of this Agreement
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pursuant to this paragraph, the Consultant may immediately cease providing
Services to the Customer, and neither party shall have any further obligation to
the other under the Agreement, provided that neither party shall be relieved
from any obligations or liabilities arising under the Agreement prior to its
termination.
7. WARRANTIES; LIMITATIONS ON LIABILITY. THE CONSULTANT MAKES NO
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WARRANTY, REPRESENTATION, OR PROMISE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN THE SERVICES ARE PROVIDED "AS
IS." THE CONSULTANT DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE AND FITNESS OF THE SERVICES FOR A PARTICULAR PURPOSE. THE
CONSULTANT DOES NOT WARRANT THAT THE SERVICES OR RELATED MATERIALS WILL SATISFY
CUSTOMER'S REQUIREMENTS OR THAT THE SERVICES AND RELATED SERVICES WILL BE
WITHOUT DEFECT OR ERROR.
8. ENTIRE AGREEMENT. This Agreement supersedes all previous agreements
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between the parties, contains the entire understanding between the parties, and
may not be changed, except in writing, duly executed by each of the parties.
9. INDEPENDENT CONTRACTOR. The Consultant is an independent contractor
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relative to the Customer and nothing contained herein shall be deemed to create
a partnership or agency relationship.
10. ASSIGNMENT. This agreement may not be assigned without the express
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written consent of the non-assigning party.
11. NOTICES. All notices required by this Agreement shall be in
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writing and sent by Facsimile, Electronic Mail, Federal Express, or U.S. Mail,
Return Receipt Requested as provided below. Such notice shall be sufficient for
the purposes of this Agreement only if sent to the party's "Address for Service"
as listed below. Such Address for Service may be changed by any party by
serving notice (in compliance with the paragraph) on the other party. No notice
sent by facsimile shall be sufficient without a confirmation receipt. No notice
sent by electronic mail shall be sufficient unless sent to an address included
in the recipient's Address for Service and acknowledged by a human-generated
response.
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Consultant's Address for Service:
Address: 000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Fax: (310) 656 - 3055
E-mail: xx@xxxxxx.xxx
Customer's Address for Service:
Address: 0000 Xxxx Xxxxx Xxxx.
Xxxx Xxxxx, XX 00000
Fax: (000) 000 0000
E-mail: xxxxxxx00@xxxxx.xxx
12. DISPUTE RESOLUTION. If a dispute or claim shall arise with respect
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to any of the terms or provisions of this Agreement, then either party may, by
notice as herein provided, require that the dispute be submitted under the
Commercial Arbitration Rules of the American Arbitration Association to an
arbitrator in good standing with the American Arbitration Association within
fifteen (15) days after such notice is given. Any such arbitrator so selected
is to be mutually acceptable to both parties. If both parties are unable to
agree upon a single arbitrator, each party shall appoint one (1) arbitrator. If
either party does not appoint an arbitrator within five (5) days after the other
party has given notice of the name of its arbitrator, the single arbitrator
appointed by the party giving notice shall be the sole arbitrator and such
arbitrator's decision shall be binding upon both parties. If two (2)
arbitrators are appointed, these two (2) arbitrators shall appoint a third
arbitrator who shall proceed to resolve the question. The written decision of
the single arbitrator ultimately appointed by or for both parties shall be
binding and conclusive on the parties. Judgment may be entered on such written
decision by the single arbitrator in any court having jurisdiction and the
parties consent to the jurisdiction of Orange County, California for this
purpose. Any arbitration undertaken pursuant to the terms of this section shall
occur in Orange County, California.
13. ATTORNEYS' FEES. In the event of any legal, equitable or
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administrative action or proceeding brought by any party against another party
under this Agreement, the prevailing party shall be entitled to recover the
reasonable fees of its attorneys and any costs incurred in such action or
proceeding including costs of appeal, if any, in such amount that the court or
administrative body having jurisdiction over such action may award.
14. GOVERNING LAW. This Agreement will be construed and enforced in
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accordance with, and governed by, the laws of the State of California in the
United States of America without giving effect to any conflict of laws
principles. The parties hereby consent to the personal jurisdiction of the
courts of the County of Orange, California, and waive any rights to change
venue.
15. CURRENCY DENOMINATIONS. All currency denominations are in United
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States dollars.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first written above.
The Consultant
/s/ Xxxxx Xxxx
_______________________________
By: Xxxxx Xxxx
Its: CEO
The Customer
/s/ Xx. Xxxx Xxxxxxx
______________________________
By: Xx. Xxxx Xxxxxxx
Its: President
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EXHIBIT A
SERVICES
Essential Tec, Inc. will develop and deploy an e-Business site, utilizing the
latest "open standard" technology.
SYSTEM FUNCTIONALITY: The proposed system will have following functionalities:
- establishing a foundation infrastructure for e-Business
- designing web interface, including secure login
- creating critical information to collect with regards to Patient's test
results.
- designing workflow process whereby, Referring physicians can obtain
results from Radiology and other imaging labs.
- Creating custom CODECS for streaming of large files over the internet for
faster access.
APPROACH: This section reviews the EssTec project execution approach. It is
divided into
- Project phases
- Requirements
- Design
- Development including Deployment & Rollout
- Resources and Project Management
TEAM MAKE-UP: EssTec proposes following team structure for the successful
development and implementation of this project:
- EssTec Project Manager.
- PMMG Project Manager.
- System Architect.
- Team Lead (For the offshore team).
- One JSP/ASP/Coldfusion Engineer.
- Two COM/DCOM/EJB/JAVA Software engineers.
- One Graphics Designer.
- One Quality Assurance engineer.
REQUIREMENTS PHASE ACTIVITIES: During the Requirements, The EssTec team will be
engaged in several parallel activities during the project. An initial
high-level plan is given below in Fig. 1.
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FINISH
FIG. 1: HGH LEVEL PLAN & DELIVERABLES FOR ALPHA RELEASE
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[GRAPHICS OMITTED]
REQUIREMENT:
Planning & Staffing
User Analysis
Scope
Initial Site Map
Technical Options
Design a project plan
Integration Capbilities
TRACKS:
IA Design
Iterate Site Map, Process Flow, and Scope.
GUI design
Technology Architecture & Design
Prototype
DEVELOPMENT:
Graphics, Screens
Programming
Integration: GUI and backend integration
Beta/Functional Prototype
IMPLEMENTATION:
Deployment of solution
TESTING:
User Acceptance
Testing & Bug Fixes
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User needs findings
And Output from the customer interview activities, along with
recommendations corresponding observations and recommendations
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Vision and objectives of the project as determined through the
Project vision workshops
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Prioritized business functionality based on initial functionality
Scope matrix desired by PMMG, adjusted based on user needs input
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Conceptual themes, positioning, and creative design brief for the
Creative Vision Independent Retailer site
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Assessment of existing content in terms of making it digital/web
Content audit -ready
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Information High level information Assessment of where and how information is
Context Diagram used and housed
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Technology High level software architecture and high level network
Architecture architecture
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Project plans Design project plans for the Independent Retailer site
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Fixed price/Fixed Revised estimates for Design and Development of the Independent
time estimates Retailer site based on updated scope
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Issues and Assumptions are captured and tracked using a tracking
Issues and tool. Issues are resolved by assigning them to owners along with
Assumptions dates for resolution
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ASSUMPTIONS:
- PMMG representatives will participate in all on-site interviews
- The EssTec team will have timely access to technology resources and
documentation
DESIGN PHASE: The purpose of the Design phase is to create a detailed roadmap
for Release 1 of the PMMG site. The Design activities drill down on both
business and technical details of the site based on the scope determined in the
Requirements phase.
The Design will consist of parallel in-depth design and analysis activities
including prototyping. This section provides an overview of the Design
objectives and deliverables. These may change if necessary based on the
Requirements phase. At the conclusion of the Design phase, EssTec will provide
PMMG with a viable, detailed design for the Independent Retailer solution.
DESIGN OBJECTIVES:
- Develop detailed process and business requirements based on future
business use cases
- Convert the business requirements into software development documentation
(e.g., screen narratives, use cases, object model, object
specifications)
- Visual Screen Prototype of the system to confirm usability
- Define the business information and functionality for system interfaces
- Complete the conversion of the business requirements into software
development documentation
- Design the software and hardware architectures required to support the
business
- Design layering, distribution and the implementation model of the
application to ensure it meets performance and maintenance
requirements
- Define the technical requirements of the system interfaces
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Sample Design Deliverables:
Business Design
Deliverable Description
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A diagram that documents the functional areas, actors and interfaces that relate to
Business Context Diagram the site. For each area, significant events are also identified so that detailed
analysis can be conducted as appropriate.
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A use case is a description of a sequence of steps that make up a business process.
Decision points are not as emphasized as in process flows. Use cases have clear
beginnings and ends, inputs and outputs and purposes. Use cases will be
Business Use Cases developed for the transactional components of the site only and be used as
acceptance criteria for the finished application.
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A written description of a pattern of steps that make up a business process that the
system will help automate, demonstrated with the aid of the prototype. They
include sample values and descriptions of anticipated results to illustrate how the
Scenarios use cases are envisioned to operate under practical conditions. They are also used
as acceptance criteria for the finished application.
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Volume and Throughput Expected system transaction volumes and performance requirements. Initial set of
Analysis performance assumptions and expectations, including response times for batch
and real-time processes, as well as screen/application response times.
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Business Operational
Requirements Documents the requirements that affect the technical solution. (e.g., 24x7
availability, number of concurrent users)
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Performance
Requirements Documented assumptions around the anticipated performance expectations of the
web site.
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Documentation of the prototype of the application will be built. This will be a
model of the system's functionality, to appropriately resemble the "look and feel"
of the end product. Prototyping is used to define the functional requirements.
Visual Screen Prototype The design prototype will be reused as possible for the Development phase of the
project.
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Screen Map Contains pictorial representations of the prototype screens; the screen map depicts
the relationships between screens.
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Business Glossary Common definition of terms
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Report Matrix and Lists the hard copy reports, as well as specifications for the sources of information
Samples presented. Also included are details on any calculations included in the reports.
Prototype of the reports (not final design).
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Project Plan Project plan for implementing the site, outlining initiatives the project is dependent
upon
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Issues and Assumptions Issues and Assumptions are captured and tracked using a tracking tool. Issues are
resolved by assigning owners and dates for resolution.
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Technical Design
Deliverable Description
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Conceptual and physical models of the database. The Data Dictionary documents
Data Model & Data the fields and data types present in the database to be implemented, including
Dictionary database-naming standards.
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Displays the high-level logical software applications and logical databases that will
automate and facilitate business processes. The Application Architecture is
independent of technology (e.g. whether it is two tier, three tier, Web Based,
Application Architecture Object, relational)
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Technical Infrastructure Documents the overall logical technical design of the application, including
Diagram platforms, operating systems, etc.
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This document organizes the system as a collection of objects containing both data
Overall Implementation structure and behavior at a high level. The content of the object model is driven
Model by its relevance to an application
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Documents the detailed design of the application component within the
Component Design Independent Retailer site. Provides an understanding of what a module does, what
Documentation problem it solves, how the component is designed, and how to code the module
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Details the specifications for each interface that will be integrated during Release
External Interface 1. (Referring to high level plan) These specifications include the data elements
Documentation being exchanged and any formats or protocols employed.
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Test Plan Requirements for testing, including a process and acceptance criteria guidelines
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DEVELOPMENT PHASE: Site construction begins after design of system elements
such as content, navigation, graphic design, databases, external interfaces is
completed. This work will be done primarily at EssTec facilities. The
Development phase can be broken down into:
- Site construction
- System Testing
- Usability Testing
- Integration Testing
- User Acceptance Testing
- Deployment & Rollout
- Training
- Support
- Deliverables and Documentation
DEVELOPMENT PHASE DELIVERABLES:
Deliverable Description
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Infrastructure (VDMG deliverable) All required infrastructure needed for the development,
testing and deployment for the site to work as planned. For
example: software and hardware needed, network
connectivity
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The Independent Jeweler site The EssTec team will be engaged in several parallel activities during the
project, the development and deployment of requested solution will be
stepwise.
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Training EssTec will mentor trainers at PMMG
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EssTec provides with a 30-day warranty of the implemented system, as
well as knowledge transfer of PMMG personnel who will support the
Support implemented system.
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Electronic deliverables from the project (for example, electronic guide
Documentation documentation)
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INFRASTRUCTURE: EssTec recommends two infrastructure environments for
development and testing/production deployment. Infrastructure implementation is
an important milestone in the high level plan and must be planned by EssTec and
PMMG technical resources early in the project. PMMG is responsible for hardware
and software purchases - EssTec will help create the specs for these purchases.
An initial specification is provided in the Appendices.
TESTING: EssTec will perform system testing in our development environment.
We recommend planning for usability testing, where actual users are brought in
to test the application once it has been developed sufficiently. Typically,
usability labs need to be set up to record user reaction. The usability lab test
results often indicate specific changes in the application necessary for
enhancing the user experience. If PMMG is not equipped to set up a usability
lab, EssTec can provide that expertise. However, the costs of setting up a
usability lab are not included in this estimate.
The final leg of testing is User Acceptance testing or UAT. During Requirements
and Design, acceptance criteria are identified for the project. During UAT, PMMG
core team members use test plans (created by EssTec) to test system
functionality, performance and how well the project meets its specifications.
UAT is not a time for additional scope requests, but rather closure on the site
prior to release. Bugs are systematically identified, prioritized, tracked and
fixed. New releases are put into testing until the application is ready to
deploy into production.
QUALITY ASSURANCE: Through all EssTec projects, a critical theme is quality
assurance. We take a complete responsibility for our assigned projects, which
means that quality assurance relates to all project areas. Regardless of types
of project EssTec uses a collection of general quality assurance methods. Our
quality assurance program is broad and we give below a couple of examples on
concrete methods we use in development projects.
Quality assurance of the idea: To deliver the right product at the agreed-upon
time
It is very important to do the right thing, to truly add value to the
organization and its customers. Our quality assurance includes an insurance
process to see if the project idea is truly durable.
Quality assurance of the product: To deliver with the right quality
The site's quality is verified continuously during the entire project, held up
against system and program specifications. Prior to the site being implemented,
we do acceptance testing to verify that the right results have been
accomplished.
Quality assurance of the process: To do it the right way
SITE DEPLOYMENT & ROLLOUT: Once the site goes through UAT by PMMG core team
members, the site is ready for deployment. PMMG may choose a pilot rollout to
selected customers first, or to all eligible users. Our client site
administrators typically move application programs from the Test environment to
Production. In PMMG's case, the site hosting decision will determine the
sequence of events in rolling out the site.
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EXHIBIT B
FEES
In consideration of the Services, the Customer shall pay the Consultant,
the Fees in the amount of US Dollars Two Hundred and Fifty Thousand ($ 250,000)
payable as per the schedule below.
- US $ 150,000 paid in advance at the time of signing this agreement.
- US $ 50,000 paid on August 15, 2001.
- US $ 50,000 paid on September 15, 2001.
The Customer will reimburse the Consultant for any incidental costs and
expenses, including but not limited to software licenses needed for the Web
Site.
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