EXHIBIT 10.24
[ENCOMPASS GLOBALIZATION LOGO APPEARS HERE]
SERVICE AGREEMENT
This Service Agreement (the "Agreement") is made and entered into as of the
later of the two dates on the signature page by and between Primus
Communications Corporation ("Primus"), a Washington corporation, and EnCompass
Globalization, Inc. ("EGS"), a Washington corporation.
In consideration of the covenants and conditions hereinafter set forth, EGS and
Primus agree as follows:
1. Services
During the term of this Agreement, EGS shall provide the following services
(the "WORK"):
The WORK shall conform to the specifications and delivery schedule listed in
the Schedule(s) agreed between the parties and attached hereto. In the event
that Primus desires to make changes to the WORK specifications and/or
delivery schedule during the term of this Agreement, Primus shall so notify
EGS, and both parties shall agree in writing on necessary adjustments, if
any, to the other terms of this Agreement required to accommodate such
changes.
2. Charges
As full and complete compensation for the WORK properly rendered by EGS
hereunder, Primus shall pay EGS the sum set forth on applicable Schedule in
United States dollars in accordance with the payment schedule attached
therein.
3. Responsibilities of Primus
(a) Primus shall use all commercially reasonable efforts to comply with all
applicable local, state and federal laws with respect to the maintenance of
appropriate and safe working areas for all staff from EGS who may work at a
Primus office or facility.
(b) Primus will ensure that one or more of Primus' designated representatives
are reasonably available to EGS and/or its employees to address questions
or issues related to the WORK.
(c) Primus shall provide EGS with such information as is reasonably necessary
for EGS to fully and properly perform the WORK, including code, designs,
notes, techniques, and tools used. EGS shall treat all such information as
"Confidential Information" (as defined in Section 7(a)) of Primus.
4. License Grant to Primus Product
(a) Primus hereby grants to EGS for the shorter of (a) the term of this
Agreement, or (b) the time during which EGS is performing the WORK, a non-
exclusive, personal, non-transferable, non-assignable license, without
right to sub-license, to use, modify, translate and adapt the Primus
product for the sole purpose of the WORK. The license granted pursuant to
this Section 3 is for EGS' internal use only and EGS shall, at all times,
strictly comply with the provisions of Section 7 with respect to the
subject matter of the license and all derivatives thereof.
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(b) Except as otherwise expressly authorized or provided in this Agreement, EGS
shall not translate, manufacture, duplicate, copy, modify, license, or
distribute any Primus product or part thereof without the prior written
authorization of Primus.
5. Delivery of and Preparation of Work
(a) The parties shall each deliver to the other the items indicated in
applicable Schedule in accordance with the schedule set forth therein,
including delivery of the WORK drafts if provided in the Schedule.
(b) Primus shall evaluate the WORK completed by EGS and may reject in writing
all or any portion of the WORK within thirty (30) days of the date of
receipt by Primus. If no written rejection is given to EGS by Primus within
the specified time, the WORK shall be deemed to be accepted by Primus. If
Primus rejects the WORK, its notice to EGS shall set forth the specific
reasons for its rejection. EGS submit a corrected WORK within fifteen (15)
days of receipt of such a notice of rejection, and Primus shall have an
additional thirty (30) days following receipt to accept or reject the
corrected WORK. If Primus rejects the corrected WORK then, without
prejudice to their other legal and equitable remedies, the parties shall
negotiate in good faith to determine a mutually satisfactory equitable
adjustment to the fees and expenses paid or payable by Primus. If Primus
and EGS have not reached agreement on the equitable adjustment within
ninety (90) days of Primus' final rejection notice, then either of the
parties may initiate the dispute resolution procedures specified in
Section 14.
(c) Conformity to the specifications and to EGS' warranties herein shall solely
determine Primus's right to accept or reject the WORK performed by EGS.
Acceptance by Primus shall not be arbitrarily or unreasonably withheld.
6. Work For Hire/Assignment of Proprietary Rights
All deliverables and all other works prepared by EGS in the course of
performing the WORK hereunder shall (to the maximum extent possible) be
deemed to be "work made for hire" done by EGS for Primus pursuant to 17
U.S.C. Section 201 (b) and, to the extent (if at all) not "work made for
hire" shall be, and hereby are, transferred, sold, conveyed and assigned to
Primus and Primus shall own all copyrights and other proprietary rights
including rights in any inventions, designs, concepts, techniques,
discoveries, improvements, trade secrets and patent rights as though Primus
were the original sole creator or inventor thereof. EGS shall execute and
deliver such instruments and take such other action as may be required to
carry out the transfer, sale and assignments of proprietary rights
contemplated by this paragraph. Any documents, magnetically or optically
encoded media, or other materials or collections of data created by EGS under
this Agreement shall be owned by Primus in their entirety. Techniques, tools,
know-how and proprietary expertise of EGS or any of its agents or
subcontractors used in preparing the deliverables shall not be included in
any "work for hire" transfer of rights to Primus.
7. Confidentiality
(a) "Confidential Information" means (i) any of a party's proprietary
technology or computer software in all versions and forms of expression,
whether or not the same has been patented or the copyright thereto
registered, is the subject of a pending patent or registration application
or forms the basis for a patentable invention; (ii) any manual, notes,
documentation, technical information, drawings, diagrams, specifications,
formulas, or know-how related to any of the foregoing, (iii) any
information regarding current or proposed products, customers, contracts,
business methods, financial data or marketing data, (iv) any other
information that is clearly marked or designated as
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confidential or proprietary by such party, and (v) the terms and conditions
of this Agreement. Confidential Information includes unwritten information
that is identified by such party as confidential at the time of, or within
fifteen (15) days of disclosure. Confidential Information does not include
information which: (vi) was in a party's lawful possession prior to the
disclosure and had not been obtained by such party either directly or
indirectly from the other party, (vii) is lawfully disclosed to such party
by a third party without restrictions on its disclosure, (viii) is
independently developed by such party without reference to the other
party's Confidential Information, or (ix) became known to such party from a
source other than the other party other than by the breach of an obligation
of confidentiality owed to the other party. It shall be the receiving
party's burden to show information is not Confidential Information of the
other party.
(b) Neither party shall directly or indirectly disclose, disseminate, publish
articles concerning, or otherwise make known or available to any person or
entity not confidentially bound to a party any Confidential Information of
the other party without prior written permission from the other party.
Neither party shall use Confidential Information of the other party for any
purpose other than the implementation of this Agreement, and then such use
shall only be by employees and authorized independent contractors of such
party in the course of performing this Agreement. Each party shall take all
necessary steps to insure that Confidential Information of the other party
is not disclosed or distributed by its employees, independent contractors
or agents in violation of the provisions of this Agreement. Upon the
request of a party, the other party shall provide to the requesting party
in writing the names of the persons to whom Confidential Information of
such party has been disclosed and/or the steps being taken by the other to
maintain the confidentiality of such party's Confidential Information. Upon
request by a party, the other party shall return any Confidential
Information provided by the requesting party, which shall be accompanied by
a certificate of an officer of the returning party certifying that all
copies of such Confidential Information of the foregoing have been returned
to the requesting party, or otherwise destroyed, except that the returning
party's legal department may retain one copy for their files.
(c) Notwithstanding anything to the contrary herein, the confidentiality
obligations for both parties set forth herein shall survive any termination
or expiration of this Agreement.
8. Representations and Warranties of EGS
EGS hereby represents and warrants that:
(a) The WORK, as delivered to Primus, will not and does not infringe any
copyright, patent, trade secret, or other proprietary right held by any
third party; provided that this representation and warranty shall not apply
to any portion of the items originally supplied by Primus;
(b) The WORK will meet the specifications listed in applicable Schedule(s)
attached to this Agreement;
(c) EGS will provide in all of its agreements with employees, persons or
entities whose services were, are, and will be rendered in connection with
the WORK, that such employees, persons and entities are not and will not be
impaired by contract or otherwise from the WORK, and that the WORK or any
"sale", licensing or use thereof does not and will not infringe upon or
interfere with the rights of any person or entity;
(d) The WORK will be created by full-time employees of EGS within the scope of
their employment and under obligation to assign inventions to EGS, or by
independent contractors under written obligations to assign all rights in
the WORK to EGS;
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(e) The WORK provided by EGS hereunder shall be performed in a professional
manner and shall be of a high grade, nature, and quality, and be consistent
with industry standards;
(f) The personnel of EGS will be available to consult with Primus and its
personnel with respect to the WORK at such times and for such periods as
Primus may reasonably request;
(g) EGS' employees and subcontractors shall, while on Primus property or
conducting any Primus related business, comply with all applicable, local,
state and federal laws, including specifically all laws prohibiting
harassment of any kind in the workplace. EGS assumes all responsibility for
providing to its employees and subcontractors any training that may be
required to insure compliance with such laws.
(h) The WORK shall conform in all respects to the applicable specifications set
forth in the Schedules.
These representations and warranties are continuous in nature and shall be
deemed to have been given by EGS at the execution of this Agreement and at
the time of Primus's acceptance of the WORK.
9. Non-Solicitation of EGS Employees
Primus agrees not to knowingly solicit for employment, nor for hire, EGS
employees or contractors during the period WORK is being performed pursuant
to this Agreement or for a period of six (6) months thereafter, without
permission, in writing, from an officer of EGS.
10. Indemnity
(a) EGS hereby agrees to defend, indemnify and hold harmless Primus and its
successors, officers, directors and employees from and against any and all
costs, expenses, liabilities, loses, damages, injunctions, suits, actions,
fines, penalties, claims and demands of every kind or nature, including
reasonable attorney's fees, expert witness fees, and litigation costs by
any person or third party, arising out of EGS' breach of any of the above
warranties or in connection with any claim that the WORK, names, and marks
furnished by EGS under this Agreement constitute an infringement of any
confidential information, trade secret, patent, copyright, trademark, trade
name, or other legal right of any third party.
(b) Primus hereby agrees to defend, indemnify and hold harmless EGS and its
successors, officers, directors and employees from and against any and all
costs, expenses, liabilities, loses, damages, injunctions, suits, actions,
fines, penalties, claims and demands of every kind or nature, including
reasonable attorney's fees, expert witness fees, and litigation costs by
any person or third party (collectively, a "Claim"), arising out of the
Primus product delivered by Primus to EGS for the WORK under this Agreement
or the distribution, sale and/or use of such product by Primus or its
distributors, agents, customers, or other third parties, except to the
extent that the Claim arises out of any services or products, or portions
thereof, provided by EGS.
(c) If any action or claim shall be brought against either party ("Indemnitee")
in respect to which indemnity may be sought from the other party
("Indemnitor") pursuant to the provisions of this Section, Indemnitee shall
promptly notify Indemnitor in writing, specifying the nature of the action
and the total monetary amount sought or other such relief as is sought
therein. Indemnitee shall cooperate with Indemnitor at Indemnitor's
reasonable expense in all reasonable respects in connection with the
defense of any such action. Indemnitor may, upon written notice thereof to
Indemnitee, undertake to conduct
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all proceeding or negotiations in connection therewith, assume the defense
thereof, and if it so undertakes, it shall also undertake all other
required steps or proceedings to settle or defend any such action,
including the employment of counsel which shall be satisfactory to
Indemnitee, and payment of all expenses. Indemnitee shall have the right to
employ separate counsel and participate in the defense thereof. Indemnitor
shall reimburse Indemnitee upon demand for any payment made or loss
suffered by it at any time after the date hereof, based upon the judgment
of any court of competent jurisdiction or pursuant to a bona fide
compromise or settlement of claims, demands or actions, in respect to any
damage to which the foregoing relates.
(d) If the WORK furnished hereunder (exclusive of that portion delivered to EGS
by Primus) is in any action held to constitute an infringement and its use
is enjoined, in addition to any other remedies herein provided, EGS shall
immediately and at its expense:
(i) procure for Primus the right to continue use, sale, and marketing of that
portion of the WORK which is held to constitute an infringement; or
(ii) replace or modify the WORK with a version of the WORK that is non-
infringing.
If (i) or (ii) is not available to EGS, EGS shall refund to Primus all
amounts paid to EGS by Primus hereunder and, in addition, shall fulfill
its indemnification obligations under this Agreement
(e) Notwithstanding anything to the contrary herein, this indemnity provision
shall survive any termination or expiration of this Agreement.
11. Force Majeure
Neither party shall be liable for failure or delay in the performance of any
of its obligations under this Agreement if such delay or failure is caused by
circumstances beyond the control of the party affected. Strikes or other
labor difficulties that are capable of being terminated on terms unacceptable
to the party affected shall not be considered circumstances within the
control of such party.
12. Waiver
None of the provisions of this Agreement shall be deemed to have been waived
by any act of or acquiescence on the part of either EGS or Primus, or their
agents or employees, but only by an instrument in writing signed by
authorized officers of Primus and of EGS. No waiver of any provision of this
Agreement shall constitute a waiver of any other provision or the same
provision on another occasion.
13. Attorney's Fees and Governing Law
In the event an action is commenced to enforce a party's rights under this
Agreement, the substantially prevailing party in such action shall be
entitled to recover its actual costs and reasonable attorney's fees. This
Agreement shall be governed by and interpreted in accordance with the laws of
the State of Washington, U.S.A., without regard to principles of conflicts of
laws.
14. Dispute Resolution
14.1 Mediation. In the event of any controversy or claim arising out of or
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relating to this Agreement or the breach or interpretation thereof, the
parties shall, upon fifteen (15) days notice from either one to the other,
submit themselves and the subject-matter of the dispute to mediation before
an independent mediator to be appointed by the Seattle office of the American
Arbitration Association or, if such office cannot do so, by the head office
of the
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American Arbitration Association. Costs of mediation shall be borne equally
between the parties.
14.2 Arbitration. If the parties remain in dispute following the mediation,
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then the controversy or claim shall be determined by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association by a single, disinterested arbitrator appointed in accordance
with such Rules. The determination of the arbitrator shall be final,
conclusive and binding. Judgment upon the award rendered may be entered in
any court of any state or country having jurisdiction.
14.3 Conduct. Each party shall ensure that any mediation and arbitration are
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conducted as speedily as is reasonably possible, and that all and any
information disclosed during or in connection with the arbitration is treated
by each party with the strictest confidence.
14.4 Interim and Permanent Relief. Upon the application of either party to
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this Agreement, and whether or not an arbitration or mediation provision has
yet been initiated, all courts having jurisdiction over one or more of the
parties are authorized to: (i) issue and enforce in any lawful manner such
temporary restraining orders, preliminary injunctions and other interim
measures of relief as may be necessary to prevent harm to a party's interests
or as otherwise may be appropriate pending the conclusion of arbitration
proceedings pursuant to this Agreement; and (ii) enter and enforce in any
lawful manner such judgments for permanent equitable relief as may be
necessary to prevent harm to a party's interests or as otherwise may be
appropriate following the issuance of arbitral awards pursuant to this
Agreement.
14.5 Venue. Any mediation or arbitration conducted under or in connection with
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this Agreement shall take place in Seattle, Washington at a time and location
to be determined by the mediator or arbitrator, as the case may be.
15. Notices and Requests
All notices and requests in connection with this Agreement shall be deemed
given as of the day they are deposited with Federal Express, DHL, Airborne or
similar overnight courier, charges prepaid, return receipt requested, and
addressed as follows:
EnCompass Group, Inc. Primus
0000 Xxxx Xxxxxxxxxx Xxxx. N.E. Address: 0000 Xxxxx Xxxxxx, #0000
Xxxxx 000, Xxxxxxxx, XX 00000 Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx Attention: Corporate Attorney
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Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
16. No Partnership or Agency
It is expressly declare that this Agreement and the relationships between
the parties established hereby does not constitute a partnership, joint
venture, agency, or contract of employment between them.
17. Assignments
This Agreement shall be binding upon and insure to the benefit of the
parties hereto and their respective successors and assigns, except that EGS
may not assign, nor attempt to assign, its rights or obligations under this
Agreement in any way without the prior written consent of Primus.
18. Entire Agreement; Modification
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof, merges all prior and contemporaneous
communications, and supercedes all prior representations, agreements and
understandings with respect to the subject matter hereof,
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and all Schedules are incorporated herein by this reference. This Agreement
shall not be effective until signed by both parties, and it shall not be
modified except by a written agreement dated subsequent to the date of this
Agreement and signed on behalf of both EGS and Primus by their respective
duly authorized representatives .
19. General
(a) If any provision of this Agreement shall be held by a court of competent
jurisdiction to be illegal, invalid or unenforceable, the remaining
provisions shall remain in full force and effect.
(b) The section headings used in this Agreement and the attached Schedules are
intended for convenience only and shall not be deemed to supersede or
modify any provision(s).
(c) Subject to the limitations set forth in this Agreement, this Agreement will
inure to the benefit of and be binding upon the parties, their successors,
administrators, heirs and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date set forth below. All signed copies of this Agreement shall be deemed
originals.
EnCompass Group, Inc. Primus Communications Corporation
By [Sign]: /s/ Xxxxx X. Xxxx By [Sign]: /s/ Xxxxx Xxxxxx
_____________________ _______________________
Name [Print]: Xxxxx X. Xxxx Name [Print]: Xxxxx Xxxxxx
__________________ _______________________
Title: President & CEO Title: SR. V. PRES.
_________________________ ___________________________
Date: 2/16/98 Date: 2/13/98
__________________________ ____________________________
Federal Employer ID#: 91-168599
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Schedule A
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This Schedule is made pursuant to the Service Agreement (the "Agreement") dated
February 3rd, 1998 by and between Primus Communications Corporation ("Primus")
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and EnCompass Globalization Inc. ("EGS").
A. Term
ESG's provision of services under this Schedule A shall commence on January
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12th, 1998 and shall be completed by June 26th, 1998. Any extension of
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such services shall be by mutual written agreement of both parties.
B. Description of Work (the "WORK")
This project will involve the following:
1. Onsite UI translation/localization
2. Translation and adaptation of online help and documentation materials
supplied by Primus
3. Onsite testing as directed by Primus personnel
What this project does not include:
1. Actual DBCS encoding or engineering work
Requested Work for SolutionBuilder, SolutionExplorer, SolutionPublisher
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Description Unit Unit Type Rate % New Cost Confidence NOTES
Level
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Onsite Localization 280 Hour $55.00 $15,400.00 90%
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Estimated Subtotal 280 $15,400.00
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Onsite Testing (1 person) 400 Hour $65.00 $26,000.00 90%
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Onsite Testing (1 person) 160 Hour $65.00 $10,400.00 90%
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Estimated Subtotal 560 $36,400.00
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Translation/Update
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Translation, Editing, Proofing 50000 Word $ 0.38 80% $15,200.00 85%
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Verification of Old Content 13.3 Hour $50.00 $665.00 70%
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Page Proofing 274 Page $ 8.00 $2,192.00 85% Expect page count
will increase.
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Index/TOC Generation 22 Page $50.00 $1,100.00 75% Assuming 5% of page
count.
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SolutionExplorer User
Guide ver. 1.0
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Translation, Editing, Proofing 5700 Word $ 0.38 100% $2,166.00 85%
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Page Proofing 52 Page $ 8.00 $416.00 85% Expect page count
will increase.
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Translation, Editing, Proofing 2400 Word $ 0.38 100% $912.00 85%
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Translation, Editing, Proofing 3000 Word $ 0.38 100% $1,140.00 85% Original word count is
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actually less work
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Page Proofing 35 Page $ 8.00 $ 280.00 85% Expect page count
will increase.
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Translation, Editing, Proofing 14400 Word $ 0.38 25% $ 1,368.00 85%
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Verification of Old Content 14.4 Hour $50.00 $ 720.00 70%
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Page Proofing 90 Page $8.00 $ 720.00 85% Expect page count
will increase.
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Translation, Editing, Proofing 16100 Word $ 0.38 20% $ 1,223.60 85%
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Verification of Old Content 17.1 Hour $50.00 $ 855.00 70%
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Index/TOC Generation 12 Page $50.00 $ 600.00 75% Assuming 5% of page
count.
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Online Help translation/Update
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22500 Word $ 0.38 60% $ 5,130.00 85%
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Verification of Old Content 12 Hour $50.00 $ 600.00 70%
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SolutionExplorer Help ver. 1.0 250 Word $ 0.38 100% $ 95.00 60% Modified from
Explorer User Guide
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9200 Word $ 0.38 50% $ 1,748.00 85%
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Verification of Old Content 6.1 Hour $50.00 $ 305.00 70%
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File Conversions & Bug Fixes 40 Hour $55.00 $ 2,200.00 75%
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Estimated Subtotal $39,635.60
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Parking Fees
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- 2 spaces for 1 month 2 Month $150.00 $ 300.00 85%
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- 1 space for 2 months 2 Month $150.00 $ 300.00 85%
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- 1 space for 1 month 1 Month $150.00 $ 150.00 85%
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Estimated Subtotal 5 $ 750.00
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Overall Subtotal $92,185.60
Project Management 3% $ 2,765.57
===================================================================================================================
Estimation of entire project cost $94,951.17
Assumptions:
The above price schedule and description of work is based on the below
assumptions.
1. Primus will provide the necessary technical environment for onsite work.
2. Primus will supervise and lead all onsite testing work conducted by EGS.
3. Primus will provide any art files needed for the documentation or DTP work.
4. That the English documentation given to EGS for Japanese translation will not
change upon receipt of those materials by EGS. If the materials do change EGS
will xxxx Xxxxxx on a time and materials basis for any extra work caused by
such a change.
C. Delivery Schedule for Both Parties
EGS' ability to submit its deliverables to Primus on schedule is directly
dependent on Primus providing EGS with the needed deliverables by the dates
specified in the attached project schedule document. In order to prevent any
confusion the deliverables for both parties are stated in the project schedule
document.
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D. Third Party Components
Unless otherwise agreed to, EGS shall not be responsible for localizing any part
of Primus' products which is based on a third party tool or component. EGS shall
not be held responsible for any delays or inability to carry out this
localization project in the event a third party tool, which was not specified
from the beginning, was the cause for such a problem. Furthermore, Primus shall
compensate EGS for any costs associated with extra work which reasonably result
from an unspecified third party tool or component, and which Primus has approved
in writing in advance of their being incurred. All third party tools need to be
specified and provided by Primus.
E. Training Availability
At the beginning of the project cycle, EGS' tester(s) will need to have basic
product training to familiarize them with the features, technologies, and
caveats of the software. Standard and/or customized training and any classes
needed in order for EGS staff to conduct the localization work will be provided
by Primus free of charge to EGS.
G. Charges
Primus agrees to pay EGS on a time and materials (hourly and/or per word basis)
for the tasks specified in item B) in United States dollars in accordance with
the following payment schedule:
(i) For onsite work, Primus agrees to pay EGS time and half of hourly rates for
any overtime work conducted by EGS. Overtime is defined as more than 8
hours of work conducted during a 24 hour period. EGS will get written
permission from COMPANY before any overtime work is undertaken by EGS.
(ii) For invoicing purposes or in the event of termination of this Agreement by
Primus, EGS shall maintain and Primus shall approve time records on all
WORK performed by employee(s), agents(s), or independent contractor(s) of
EGI, and Primus shall pay EGS at the rates specified below:
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Resource Rate
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Testing $65 per hour
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Documentation/Translation $55 per hour
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Engineering $80 per hour
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(iii) Primus shall reimburse EGS for reasonable parking or other related
reasonable expenses for technical members of EGS who go to Primus to
perform localization related work. These expenses will be included in the
estimate/invoice provided to Primus.
(iv) EGS shall invoice Primus once a month on a progress billing basis for the
actual amount of work conducted by EGS. Primus shall make payments net
thirty (30) days upon receipt of invoice.
(v) Primus shall have the right to cancel this Schedule with or without cause.
If Primus cancels the Schedule, then Primus will provide EGS fifteen (15)
days prior written notice of such cancellation. Upon receipt of such
notice, EGS will discontinue all WORK thereunder, and upon request by
Primus, will turn over to Primus all WORK in progress applicable to this
Schedule. Primus will pay for all non-recoverable expenses incurred by EGS
prior to receipt of such notice and previously approved in writing by
Primus up to the effective date of cancellation in accordance with this
Schedule. Primus shall pay for all WORK at the agreed
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rates prior to EGS' receipt of the cancellation notice, unless the
termination is for cause, and Primus is entitled to any compensation from
EGS.
EnCompass Group, Inc. Primus
Date: 2/12/98 Date: 2/11/98
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By: Xxxxx X. Xxxx By: Xxxxx X. Xxxxxx
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Name[Print]: Xxxxx X. Xxxx Name[Print]: Xxxxx X. Xxxxxx
------------------ ------------------
Title: President & CEO Title: S.V. Pres.
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