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EXHIBIT 10.11
BASIC ORDERING AGREEMENT
THIS AGREEMENT ("Agreement") is hereby entered into between Alta Software,
Inc., 00000 Xxxxxx Xxxxx Xxxx, Xxxxx 000X, Xxxxxx, XX 00000 ("Alta") and Sylvan
Prometric, 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxx, XX 00000 (the
"Customer") on the following terms and conditions:
1. General Undertaking. The parties are entering into this
Agreement to establish a relationship whereby Customer may, from time to time,
commission Alta to perform certain technical consulting, feasibility analysis,
software design, prototyping, development, training, support or other
professional or technical services agreed to by the parties. Alta's
development approach contemplates that libraries of generic code may be drawn
from Alta's object-oriented software framework whenever feasible and that
generic portions of Custom Work Product developed for particular projects will
be added to Alta's accumulated framework and reused by Alta on future,
unrelated projects.
2. Task Orders. Work performed under this Agreement shall be
described in a Task Order ("TO"), which in each instance shall be incorporated
herein as an Addendum to this Agreement at the time it is signed by Xxxxxx
Xxxxxxxxx and an authorized representative of the Customer. Execution of a TO
shall be considered a commitment by Customer to commission and pay for the
services described therein according to the hourly rates, terms and subject to
the conditions of the TO and this Agreement. Alta's workers shall maintain
contemporaneous daily time records of hours and tasks performed. Any total
dollar amounts or time schedules referenced in a TO shall be considered
reasonably accurate estimates, subject to revision.
3. Term. The term of this Agreement ("Term") shall be effective
on the date last below written and, unless terminated earlier in accordance
with Section 12 ("Default"), shall continue in full force and effect for a
period of one (1) year and shall automatically be renewed for successive one
(1) year periods unless either party notifies the other within thirty (30) days
prior to expiration of the then current Term that the Agreement shall not be
renewed. Either party may suspend or terminate work under a particular TO at
any time by giving written notice to the other party. Termination shall have
no effect on Customers obligation to pay the applicable labor rate for services
performed prior to the effective date of termination. Termination shall have
no effect on the provisions of Section 5 ("Proprietary Rights..."), Section 6
("Confidential Information"), Section 7 ("Nonsolicitation"), Section 9
("Warranties...") or Section 10 ("Limitation...").
4. Invoices, Payment, Certain Costs & Taxes. All services are
rendered on a Time & Materials basis and shall be invoiced monthly as work
progresses. Invoices shall be submitted monthly and shall be paid within
thirty (30) days from
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date of invoice. Customer may not withhold or "setoff' any amounts due
hereunder and Alta reserves the right to cease work without prejudice if
amounts are not paid when due. Extension of trade credit is conditioned upon
prompt payment. Any late payment shall be subject to any costs of collection
(including reasonable legal fees) and shall bear interest at the rate of one
(1) percent per month or fraction thereof until paid. Unless otherwise stated
in a TO, prices quoted do not include and Customer shall reimburse Alta for its
pre-authorized cost of travel (air & cab fare, lodging, auto rental) and
out-of-pocket costs for overnight courier, long- distance telephone and the
like. Customer shall pay, indemnify and hold Alta harmless from all federal,
state or local sales, use, value-added, gross receipts, personal property or
similar tax, duty or other levy (other than taxes imposed on the net income or
profits of Alta), and any interest or penalties imposed thereon, with respect
to the services or deliverables contemplated herein; provided, however,
customer shall not be required to pay penalties and interest on such taxes that
are the legal responsibility of Alta to collect and report.
5. Proprietary Rights to Software.
(a) Custom Work Product Defined. "Custom Work Product"
means the resulting work product (including all functional and technical
designs, software prototypes, programs, modules, code, algorithms, flowcharts,
data diagrams, documentation and the like) created by Alta after the effective
date of this Agreement on behalf of Customer and in furtherance of a specific
TO. Custom Work Product does not include any of Alta's separately identified
preexisting software frameworks, libraries or code incorporated or "embedded"
into the Custom Work Product ("Embedded Software").
(b) Ownership of Custom Work Product. Upon final
payment, Customer shall own all right, title and interest to all Custom Work
Product. Alta expressly acknowledges and agrees that, conditioned on final
payment all such Custom Work Product constitutes "work made for hire" under the
Federal copyright laws (17 U.S.C. Sec. 101) owned exclusively by Customer and,
alternatively, shall irrevocably assign all ownership or other rights it might
have in Custom Work Product to Customer. Customer irrevocably grants Alta a
royalty-free, perpetual, nonexclusive license in source code form to add Custom
Work Product to Alta's "framework" and libraries of code and to modify,
sublicense and reuse on unrelated projects any Custom Work Product of a generic
or reusable nature. However, Alta shall be restricted from reusing or
reselling Custom Work Product developed for Sylvan to any organization engaged
in the creation or delivery of computerized examination programs.
(c) License to Embedded Software. Except as otherwise
specifically set forth in a TO addressing the subject: (i) this Agreement
conveys no ownership rights to Customer with respect to Embedded Software, and
(ii) Customer is granted a paid-up, perpetual, nonexclusive license to modify
and use the Embedded
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Software as an integral part of, and in conjunction with, Customer's use of the
Custom Work Product in support of Customers internal business operations and
for no other purpose. Customer may not transfer, assign or sublicense the
Embedded Software or disclose source code for Embedded Software to any other
person (other than Customer's own employees having a "need to know" under
Section 6 below) without Alta's prior written consent. Customer shall restrict
access to Embedded Software to its own employees. Alta reserves all rights not
expressly granted.
6. Confidential Information.
(a) Acknowledgment of Confidentiality. Each party hereby
acknowledges that it may be exposed to confidential and proprietary information
belonging to the other party or relating to its affairs including, without
limitation, Custom Work Product, Embedded Software and other technical
information (including functional and technical specifications, designs,
drawings, analysis, research, processes, computer programs, methods, ideas,
"know how" and the like), business information (sales and marketing research,
materials, plans, accounting and financial information, personnel records and
the like) and other information ("Confidential Information"). Confidential
Information does not include (i) information already known or independently
developed by the recipient for which written documentation exists demonstrating
that the recipient knew and developed the confidential information prior to its
disclosure by the disclosing party; (ii) information in the public domain
through no wrongful act of the recipient, or (iii) information received by the
recipient from a third party who was free to disclose it. For these purposes,
Custom Work Product shall be considered the Confidential Information of each
party.
(b) Covenant Not to Disclose. With respect to the other
party's Confidential Information, the recipient hereby agrees that during the
Term and at all times thereafter it shall not use, commercialize or disclose
such Confidential Information to any person or entity, except to its own
employees having a "need to know" (and who are themselves bound by similar
nondisclosure restrictions), and to such other recipients as the other party
may approve in writing; provided, that all such recipients shall have first
executed a confidentiality agreement in a form acceptable to the owner of such
information. Neither party nor any recipient may alter or remove from any
Confidential Information owned or provided by the other party any proprietary,
copyright trademark or trade secret legend. Each party shall use at least the
same degree of care in safeguarding the other party's Confidential Information
as it uses in safeguarding its own confidential information, but in no event
shall a party use less than the care a reasonable person would use to protect
his or her confidential information. The foregoing restrictions specifically
prohibit Customer from providing third party consultants or software developers
access to Alta's Embedded Software unless stated otherwise in the TO.
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7. Nonsolicitation. During the Term and for a period of two (2)
years thereafter, each party agrees not to hire, solicit, nor attempt to
solicit the services or business of any teaming partner or employee of the
other party without the prior written consent of such other party. Violation
of this provision shall entitle the aggrieved party to assert liquidated
damages against the offending party equal to one hundred fifty (150) percent of
the affected person's annual compensation together with enforcement costs
(including reasonable legal fees).
8. Injunctive Relief. The parties acknowledge that violation by
one party of the provisions of Section 5 ("Proprietary Rights to Software"),
Section 6 ("Confidential Information") or Section 7 ("Nonsolicitation") would
cause irreparable harm to the other party not adequately compensable by
monetary damages. In addition to other relief, it is agreed that temporary and
permanent injunctive relief shall be available, without necessity of posting
bond, to prevent any actual or threatened violation of such provisions.
9. Warranty, Disclaimer. Alta represents and wan-ants that it
will use its best efforts: (a) to perform services in a competent and
workmanlike manner, and (b) to ensure Custom Work Product performs
substantially according to applicable specifications included in the relevant
TO. Alta does not warrant that the services, Custom Work Product or any
Embedded Software or other deliverable provided hereunder will be entirely free
from error or defect. Nothing herein shall preclude Alta from being
compensated at its normal rates for revising or debugging deliverables, which
is a normal part of the design and development process. EXCEPT AS SPECIFICALLY
PROVIDED IN THIS SECTION ("WARRANTIES"), ALTA DISCLAIMS WITH RESPECT TO ALL
SERVICES, CUSTOM WORK PRODUCT, EMBEDDED SOFTWARE OR OTHER DELIVERABLES, ALL
EXPRESS AND IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY CHANGES BY CUSTOMER
TO SOURCE CODE FOR A DELIVERABLE SHALL RELEASE ALTA'S WARRANTIES FOR MATERIALLY
AFFECTED CODE.
10. Limitation of Remedies & Liabilities. The parties acknowledge
the following provisions have been negotiated and reflect a fair allocation of
risk:
(a) Remedies. Except for certain injunctive relief
authorized under Section 8 hereof ("Injunctive Relief"), Customer's sole and
exclusive remedies for Alta's default hereunder shall be (i) to obtain the
repair, replacement or correction of the defective services or deliverable to
the extent wan-anted under Section 9 ("Warranties") or, if Alta reasonably
determines that such remedy is not economically or technically feasible, (ii)
to obtain an equitable partial or full refund of amounts paid with respect to
the defective services or deliverable under the TO at issue.
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(b) Liabilities. ALTA SHALL NOT BE LIABLE FOR ANY AMOUNT
EXCEEDING THE TOTAL PORTION OF THE CONTRACT PRICE ACTUALLY PAID BY CUSTOMER
UNDER THE TO AT ISSUE. EXCEPT FOR EITHER PARTY'S INFRINGEMENT OF THE OTHER
PARTY'S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS, PROFITS OR
BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY) ARISING
OUT OF OR PERTAINING TO THE SUBJECT MATTER OF THIS AGREEMENT.
11. Notices. Notices sent to either party shall be effective when
delivered in person or transmitted by telecopier ("fax") machine, one (1) day
after being sent by overnight copier, or two (2) days after being sent by first
class mail postage prepaid to the other party's principal place of business. A
facsimile of this Agreement and notices generated in good form by a fax machine
(as well as a photocopy thereof) shall be treated as "original" documents
admissible into evidence unless a documents authenticity is genuinely placed in
question.
12. Default. Either party may be declared in default of this
Agreement if it breaches any material provision hereof and fails within ten
(10) days after receipt of notice of default to correct such default or to
commence corrective action reasonably acceptable to the other party and proceed
with due diligence to completion. Either party shall be in default hereof if
it becomes insolvent, makes an assignment for the benefit of its creditors, a
receiver is appointed or a petition in Bankruptcy is filed with respect to it
and is not dismissed within thirty (30) days.
13. Disputes, Choice of Law. Except for certain emergency
judicial relief authorized under Section 8 ("Injunctive Relief") which may be
brought at any time, the parties agree that all disputes between them shall
first be subject to the procedures in Section 12 ("Default") and then shall be
submitted for informal resolution to their respective chief information
officers. If the parties are still unable to reconcile their differences, the
dispute may then be taken to court by either party. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF VIRGINIA
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
14. Independent Contractor Status. Each party and its people are
independent contractors in relation to the other party with respect to all
matters arising under this Agreement. Nothing herein shall be deemed to
establish a partnership, joint venture, association or employment relationship
between the parties.
15. Compliance with Export Regulations. Customer has or shall
obtain in a timely manner all necessary or appropriate licenses, permits or
other
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governmental authorizations or approvals; shall indemnify and hold Alta
harmless from, and bear all expense of, complying with all foreign or domestic
laws, regulations or requirements pertaining to the importation, exportation,
or use of the technology to be developed or provided herein. Customer shall
take no action, nor omit to take any required action, which would cause either
party to violate the Foreign Corrupt Practices Act of 1977 or the U.S. Export
Administration Regulations. The provisions of this section and assurances made
herein shall survive termination of this Agreement.
16. Miscellaneous. This document and any TO from time to time
executed in accordance with Section I ("General Undertaking") constitute the
entire agreement between the parties with respect to the subject matter hereof
and supersede all other communications, whether written or oral. This
Agreement may be modified or amended only by a writing signed on behalf of Alta
by Xxxxxx Xxxxxxxxx and by an authorized representative of Customer. Except as
specifically permitted herein, neither this Agreement nor any rights or
obligations hereunder may be transferred or assigned without the other party's
prior written consent and any attempt to the contrary shall be void, except
Alta may subcontract portions of the work under a TO. Neither party shall be
liable for delays caused by events beyond its reasonable control. Any provision
hereof found by a tribunal of competent jurisdiction to be illegal or
unenforceable shall be automatically conformed to the minimum requirements of
law and all other provisions shall remain in full force and effect. Waiver of
any provision hereof in one instance shall not preclude enforcement thereof on
future occasions. Headings are for reference purposes only and have no
substantive effect.
IN WITNESS WHEREOF, for adequate consideration and intending to be legally
bound, the parties hereto have caused this Agreement to be executed by their
duly authorized representatives.
Alta Software, Inc.
By: /s/ XXXXXX XXXXXXXXX
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Xxxxxx Xxxxxxxxx, President
Sylvan Prometric:
By: /s/ XXXXX XXXXX
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Name/Title: Xxxxx Xxxxx, Vice President
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Date: 9/9/98
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