EXHIBIT 10.39
PROFESSIONAL SERVICES AGREEMENT
This Agreement is made this 8TH day of October, 1999 between Natural
MicroSystems Corporation a Delaware corporation of 000 Xxxxxxxx Xxxxxxxxx,
Xxxxxxxxxx, XX XXX 00000 ("NMS") and IP Xxxxx.xxx. Inc., a Nevada Corporation,
of 0000 X. x0xx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, (the "Customer").
(h) SCOPE
NMS agrees to perform the services (the "Services") set forth in the in the
attached Statement of Work (the "Statement of Work"'). subject to the terms and
conditions in this Agreement. Beginning on the Services Starr Date as defined in
the Statement of Work, NMS shall provide the Services during NMS' normal
business hours unless otherwise expressly stated in the Statement of Work. Each
party shall appoint a Project Manager who shall be the point of contact for day
to day work.
(i) TERM OF AGREEMENT
This Agreement shall become effective upon signature by both parties, and shall
continue in force until expiration on the Services End Date as defined in the
Statement of Work or termination in accordance with Section 8, whichever comes
sooner.
3. PRICES & PAYMENT
NMS shall perform the Services at the rates/prices and any payment schedule(s)
set forth in Statement of Work. Customer shall pay each invoice in full within
thirty (30) days from the date of such invoice. Customer will nor set-off any
amounts due under any invoice, Customer also agrees to reimburse NMS for all
travel, airfare, meals, living, incidental and out of pocket expenses incurred
in the performance of this Agreement unless otherwise expressly stated in the
Statement of Work.
['he rates are exclusive of any taxes or duties. Consequently, Customer shall
pay. or reimburse NMS for, the gross amount of any taxes however levied
(excluding taxes imposed exclusively on NMS' earnings generally), including, but
not limited to, taxes on the Services or present or future sales, use,
licensing, delivery, excise. value added or other taxes or duties on any
services or deliverables provided hereunder.
Any estimated costs, dates and numbers of hours in the Statement of Work are
non-binding estimates. Actual expenses may exceed any estimates. NMS makes no
representations that the actual amount of Services performed or the actual
number of hours charged will be equal to, or will approximate, any estimate.
A late fee will be assessed on past due amounts at one and one-half percent
(1.5%) or the maximum amount then permissible by law, whichever is greater.
Customer will also pay any reasonable collection and attorney's fees NMS incurs
in the collection of any unpaid balance, including any late fees.
4. OWNERSHIP
(a) Customer shall retain title to all of Customer's pre-existing patents,
copyrights, trade secrets and other intellectual property rights ("Customer's
Pre-existing Technology") whether or not such Customer Pre-existing Technology
is used to produce, or embodied in the Services or any work or data hereunder.
NMS shall retain title to all of NMS' pre-existing patents, copyrights, trade
secrets and other intellectual property rights ("NMS Pre-existing Technology")
whether or not such NMS Pre-existing Technology is used to produce. or embodied
in the Services or any work or data hereunder.
(b) Provided that Customer has made all payments to NMS due under this
Agreement, the work product to be made and delivered under this Agreement by NMS
("Work Product") shall be the exclusive property of Customer, excluding NMS
Pre-existing technology.
(c) In no event shall this Agreement be construed as an assignment or transfer
of any NMS Pre- existing Technology or other rights Prom NMS to Customer.
5. NONSOLICITATION
Customer agrees that it shall riot during, and for one year after any expiration
or termination of this Agreement, directly or indirectly, solicit, hire or
other-wise retain as an employee, independent contractor or consultant (except
through NMS) any employee of NMS who was directly involved in the performance or
this Agreement.
6. WARRANTY & LIMITATION OF LIABILITY
NMS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY NONINFRINGEMENT AND FITNESS FOR A
PARTICULAR PURPOSE. IN. NO EVENT SHALL NMS BE LIABLE FOR ANY INCIDENTAL,
CONSEQUENTIAL, SPECIAL, PUNITIVE AND/OR INDIRECT DAMAGES, INCLUDING, BUT NOT
LIMITED TO, THOSE RESULTING FROM LOSS OF USE, DATA PROFIT, BUSINESS, PROSPECTIVE
PROFITS OR ANTICIPATED SALES, OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, LEASES
OR COMMITMENTS IN CONNECTION WITH THE 8US1NESS OR GOODWILL, WHETHER ARISING IN
AN ACTION OF CONTRACT, TORT OR OTHER LEGAL THEORY, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH. NMS' TOTAL LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE
REMEDY FOR ANY CLAIM CONCERNING NMS PERFORMANCE, NMS' NONPERFORMANCE ANY WORK
PRODUCT AND/OR ANY SERVICES, OR FOR DAMAGES FOR ANY CAUSES WHATSOEVER AND
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT' OR ANY OTHER LEGAL
THEORY, SHALL NOT EXCEED THE AMOUNT RECEIVED BY NMS IN RESPONSE TO THE RELATED
INVOICE.
7. PERSONNEL
Customer acknowledges that the NMS personnel providing Services may perform
similar services from time to time for third parties. Nothing In this Agreement
shall restrict NMS' providing similar services to other customers or NMS'
discretion to transfer or assign its personnel to any other project.
8. TERMINATION:
This Agreement, and any purchase order issued hereunder. may he terminated for
causes follows:
i) by either party if the other party fails to perform any material provisions
of this Agreement and fails to cure within thirty (30) days after receipt of
written notice; or
(ii) by either party immediately upon written notice if the other party becomes
insolvent or makes an assignment for the benefit of creditors, or a receiver or
similar office: is appointed to take charge of all or part of such party's
assets; or
(iii) by NMS immediately upon written notice if Customer enters into an
Agreement with, or is acquired by or merged into, any other party which in NMS'
sole opinion is a competitor of NMS or is adverse to NMS' business interest.
9. NOTICE
Any notice given under this Agreement shall be written or telegraphic. Written
notice shall be sent by registered or certified mail, postage prepaid, return
receipt requested. Any telegraphic notice must be followed within three (3) days
by written notice. All notices shall be effective when first received at the
following addresses:
Natural MicroSystems Corporation XXXxxxx.xxx. Inc.
000 Xxxxxxxx Xxxxxxxxx 0000 Xxxxx 0 0xx Xxxxxx
Xxxxxxxxxx, XX 00000 Suite4l6
Attn: CFO Xxxxxxx, XX 00000
Attn: Xxx Xxxxxx
10. CONFIDENTIAL INFORMATION
Each party agrees to treat a!] information received from the other party which
is labeled or identified as proprietary or confidential, as confidential and
trade secret proprietary information of the disclosing party ("Confidential
information"). The receiving party shall not sell, copy. transfer, publish,
disclose, display, or otherwise make available any Confidential Information to
any person or third party (including any of the receiving party's subsidiaries),
except those with a need to know such Confidential information in order to
accomplish the purposes of this Agreement. The receiving party shall secure and
protect the Confidential information in a manner consistent with its treatment
of its own confidential information of like significance, but no less than
reasonable. The receiving party shall take appropriate action by instruction
and/or agreement with its employees and agents who are permitted access to such
Confidential Information, to satisfy its obligations hereunder. Confidential
information does riot include information that: (i) is or becomes part of the
public domain through no fault of the receiving party. (ii) is rightfully known
to the receiving party without obligations of confidentiality or restrictions on
use prior to its first receipt from the disclosing party, or (iii) is, as
evidenced by written records, independently developed by the receiving party, or
(iv) is rightfully received from a third party (without obligations of
confidentiality or restrictions on use) who is not subject to any non-disclosure
obligation.
Neither this Agreement nor receipt of Confidential Information hereunder shall
limit either party's independent development and marketing of products or
systems. nor will this Agreement or receipt of Confidential Information
hereunder prevent cither party from undertaking similar efforts or discussions
with third parties, including competitors of each party. Nothing in this
Agreement shall restrict either party's discretion to transfer or assign its
personnel or prevent employees who had access to Confidential information from
using that information mentally retained as part of their general skill,
knowledge, talent and expertise.
11. INDEPENDENT CONTRACTOR
In furnishing services pursuant to the Agreement. NMS will be acting as an
Independent Contractor. Neither party is an agent, representative, employee,
partner or joint venturer of the other party, and neither party is authorized to
act on behalf of the other party. As such, neither NMS nor its employees will be
an employee of Customer, and neither NMS nor its employees will by reason of the
Agreement or the Services hereunder be entitled to participate in, or to receive
any benefit or right under any of Customer's employee benefit or welfare plans.
12. GENERAL
A. This Agreement constitutes and fully expresses the final, complete, exclusive
and entire Agreement between the parties with respect to the subject matter
hereof. This Agreement supersedes all prior agreements and understandings
between the parties and may not be modified, waived or extended unless mutually
agreed upon in writing by both parties.
B. In the event any provision of this Agreement is found to be legally
unenforceable, such provision shall be stricken to the extent unenforceable and
the remainder of this Agreement. shall remain in full force and effect.
C. This Agreement shall be construed, interpreted and applied in accordance with
the Laws of the Commonwealth of Massachusetts, excluding its choice of laws
principles. Customer agrees to the exclusive jurisdiction of a competent court
in the Commonwealth of Massachusetts.
D. This Agreement may only be modified or amended by a writing signed by the
parties.
E. Neither party may assign this Agreement without the prior written consent of
the other party, and any attempt by either party to assign this Agreement
without such consent shalt be void.
F. The obligations under the following Sections shall survive any expiration or
termination of this Agreement: 4, 5, 6, 10 and 12(c).
IN WITNESS WHEREOF, the authorized representatives behalf of the parties hereto
have executed this Agreement on behalf of the parties.
Natural MicroSystems Corporation XXXxxxx.xxx, Inc.
By:/s/ Xxx Xxxxx By: /s/ Xxxxxxx X. Will
-------------------------- ------------------------------
Name: Xxx Xxxxx Name: Xxxxxxx X. Will
Title: VP American Sales Title: President and COO
Date: Oct 22, 1999 Date: October 8, 1999
STATEMENT OF WORK
to
PROFESSIONAL SERVICES AGREEMENT
Dated: 8th day of October 1999
Customer: XXXXXXX.XXX. Inc.
Services Start Date: October 15, 1999
DESCRIPTION OF SERVICES
NMS shall perform the following Services:
XXXxxxx.xxx desires the ability to add multiple AGT1/RT2 and / or multiple
AGEl/RT2 VOIP platforms to us current single AGTI/RT2 and single AGE l/RT2 VOIP
platforms. XXXxxxx.xxx has requested that Natural microsystems (NMS) extend
their present gateway population from 1 up to 4 AGT1/RT2 or AGE l/RT2 per TX3000
Data Engine utilizing appropriate NMS Software Development Tools.
Features and Requirements:
- Communication will be established between two gateways configured as
XXXxxxx.xxx gateways.
- Each configuration will comprise one TX3000 Data Engine and up to four
AGT1/RT2 Fusion cards.
- G.723.1 will be the realtime vocoder.
- Fusion 2.2 is the current Revision being used by XXXxxxx.xxx.
- NMS will require adequate software representing XXXxxxx.xxx.'s
proprietary software,
- NMS will require the operating CI ACCESS/FUSION program ~a it. exists
today.
- Direct phone communication between the respective Project Managers
will be required.
Limitations
This development is planned to fully populate ISA hackplane systems per the
"Description Of Service" above using Standard NMS Software Tools and XXXxxxx.xxx
proprietary applications.
The XXXxxxx.xxx. gateways will be fully tested such that configurations
containing at least 1 TX3000 will be scalable and will be configured with from 1
to 4 AGT1/RT2. AGE/RT2 components. The Current XXXxxxx.xxx. application which
runs on the single component platform will run on the scalable platforms.
NMS will provide a 30 day software warranty for the work performed. This
warranty will begin upon completion and acceptance of the proposed work
contained herein.
2. PROJECT MANAGERS
NMS Project Manager: Xxxxxx Xxxxx
Customer Project Manager: Xxxxxxx Xxxxx
3. TERM
Services Start Date:
On or about October 11th, 1999
Services End Date: October 29, 1999
4. RATES/PRICES/PAYMENT SCHEDULE (to be included below by NMS):
$l6O/hour. The estimate is 117--120 hours for completion
Customer will reimburse NMS for all travel, airfare, meals, living,
incidental and out of pocket expenses unless otherwise expressly
stated above.
Any estimated costs, dates or numbers of hours are non-binding.
Actual expenses may exceed any estimates. NMS makes no
representations that the actual amount of Services performed or the
actual number of hours charged will be equal to, or will
approximate, any estimate presented to Customer.
IN WITNESS WHEREOF, the authorized representatives of the panics hereto have
executed this Statement of Work on behalf of the parties,
Natural Microsystems Corporation (Customer)
By: /s/ Xxx Xxxx By:/s/ Xxxxxxx X. Will
------------------------------- --------------------------------
Name: Xxx Xxxx Name: Xxxxxxx x. Will
Title:VP Sales America Title: President and COO
Date:Oct 22, 1999 Date: October 8, 1999
IPVoice..com, Inc. Purchase Order No. 99-01202
0000 X. 00xxXxx.x Xxx. 000/000
Xxxxxxx, XX 00000
000-0000000 fax 000-000-0000
----------------------------------------------------------PURCHASE ORDER--------
Vendor: Ship To:
Name Natural MicroSystems Name: IPVC
Address 000 Xxxxxxxx Xxxx. Address
City Framingham St MA ZIP 01702 City St ZIP
Phone Phone
Qty Units Description Unit Price Total
1 Professional Services Agreement $ 19,200 $ 19,200.00
Dated October 8, 1999
Sub Total $ 19,200.00
Shipping & Handling
Taxes/State
Total $ 19,200.00
Payment Details
_Check
_Cash
_Account No.:
_CreditCard
Name:
CC#
Exp Date:
Shipping Date:
Approval Date 12/2/99
Order No 10/8/99
Sales Rep
Ship Via
Notes/Remarks
