Exhibit A: Project Labor Costs
Exhibit
10.58
Terms
And Conditions
for
Time
and Materials Project,
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Scope
Of This Agreement:
· This
is a Time and Materials Agreement
· This
Agreement applies to Projects performed for US-based
companies
· This
Agreement assumes that the following documents will be created
as part of the Project:
o Project
Requirements Document
o Design
Verification Test Plan
To
Complete This Agreement:
· Complete
the information on this first page
· Confirm
pricing in Exhibit A
· Client
signature
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| Effective Date: | 1/6/2010 | |
| Spectrum: | ||
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Spectrum
Design Solutions, Inc.
▇▇▇
▇ ▇▇▇
▇▇. ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
General Manager, Spectrum Services
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
A
wholly owned subsidiary of Digi International Inc.
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| Client: | ||
| Location Based Technologies, Inc. | ||
| Client Name | ||
| Address of Principal Office | ||
| ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ | ||
| Irvine, CA 92618 - 3127 | ||
| City, State, Zip | ||
| Client is a (choose one) | ||
| o Corporation | ||
| o LLC | ||
| o Partnership | ||
| o Other: _____________________________ | ||
| formed under the laws of ___________________ | ||
| Contact: | ||
|
Name
▇▇▇▇▇▇
▇▇▇▇▇▇▇
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Mailing Address, if different from Principal Office | ||
| Phone | |||
| 888-600-1044 | |||
| ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ |
1
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1.
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Definitions.
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a.
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“Project”
shall mean the services performed for and Deliverables to be received by
Client.
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b.
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“Project
Documents” shall mean the set of documents defining the Project and the
respective rights and obligations of the Parties. The Project
Documents may contain some or all of the
following:
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i.
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“Agreement”
– this Terms and Conditions document, along with any Exhibits and
Attachments
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ii.
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“Project
Plan” – a written Plan describing the separate phases of the
Project
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iii.
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“PRD”
– the Product Requirements Document that is delivered as part of Phase 1
of the Project
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iv.
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“DVT”
-- the Design Verification Test plan that is delivered as part of Phase 1
of the Project
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v.
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“VOR”
– a Variation Order Request, which is a written request for modifications
to the Project, as required by changes in assumptions or
requirements.
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vi.
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“MOR”
– Materials Order Request
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c.
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“Deliverables”
shall mean the items, reports and information to be delivered to the
Client, as defined in the Project
Documents.
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d.
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“Project
Costs” shall consist of labor costs, non-labor expenses and materials
costs.
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e.
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“Party”
or “Parties” shall refer to Spectrum and Client, either individually or
collectively, as the context
requires.
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2.
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Project Initiation,
Documentation, Variation
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a.
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By
its signature below, Client authorizes Spectrum to begin the
Project.
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b.
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During
Phase 1 of the Project, Spectrum will produce a PRD and a
DVT. Once Client has accepted the PRD and DVT, those documents
will define the Deliverables and the acceptance process for the
Deliverables.
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c.
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Client
may cancel a project or any phase of a project or put it on hold with a
written notice to Spectrum. After receipt of notice, Spectrum
will discontinue work on the project and will only engage in such work as
is necessary to close the project or
phase.
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3.
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Pricing and Payment
Terms.
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a.
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The
Project labor costs are specified in Exhibit A or, otherwise, in a written
document.
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b.
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This
is a Time and Materials contract. This means that Spectrum will
perform work on an hourly rate basis for engineering
services. Any needed materials will be handled as set forth in
Section 3.e.
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c.
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Estimates
provided by Spectrum are just that, estimates. Of necessity,
estimates require that certain assumptions be made. For
instance, one assumption normally made is that the Client will provide
needed data in a timely manner and that data will be
accurate. If any assumptions turn out to be wrong the resulting
estimate may very well be wrong as well. Even if assumptions
are correct, the work may turn out to be more or less complex than
originally thought. Spectrum will use its best judgment
in providing estimates but the parties acknowledge that Spectrum will be
reimbursed for the total number of hours for which it provides services,
whether that is more or less than or exactly as
estimated.
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d.
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The
scope, structure, and any estimated costs are based on Spectrum’s
understanding of the Project requirements as communicated by the
Client. If requirements or assumptions change, Spectrum will
provide the Client with written recommendations for Project changes in the
form of a VOR. Spectrum will only proceed with major changes
after Client has approved the appropriate VOR. A Major Change
is a variation in the Project requirements that is estimated by Spectrum
to require more than eight hours of additional work. If the
variation in Project requirements requires the services of more than one
person, the eight-hour threshold applies to the aggregated amount of
estimated additional work. A Minor Change shall be a variation
in the Project requirements that is not a Major Change. Minor
changes do not require a VOR.
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e.
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Spectrum
will notify Client in writing when it reaches or is about to reach the
most current estimate for the work being performed. It will
also provide a new estimate to complete the work. Spectrum may
then, at its option, suspend work until Client provides written
authorization to proceed in accordance with the new
estimate.
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2
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f.
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Project
non-labor expenses and materials costs (“Non-labor Costs”) not otherwise
set out in a Project Document must be pre-approved by Client and are an
added expense. Non-labor Costs will be billed at cost plus
15%. Items that may be included in Non-labor Costs are travel
expenses, third-party testing fees, fabrication expenses, certification
expenses, hardware and materials. Any required materials
purchase over five thousand ($5000.00) dollars will be invoiced
immediately.
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g.
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Project
Costs are exclusive of all federal, state, municipal or other government,
excise, sales, use, occupational, or like taxes or customs, except for
taxes on Spectrum’s net income. Client agrees to pay any tax
Spectrum may be required to collect or pay now or at any time in the
future which are imposed upon the sale or delivery of the services
provided.
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h.
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Client
may request credit terms. If credit is approved on Client’s
account, Spectrum will issue monthly progress ▇▇▇▇▇▇▇▇ with terms as
indicated in the credit approval letter. Client’s account may
not exceed the credit or payment terms. Overdue invoices are
subject to expenses of collection, if any, and a finance charge of the
lower of:
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i.
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1.5%
per month on any past-due balance, calculated per-diem, simple interest;
or
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ii.
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the
maximum permitted by law,
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i.
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Unless
otherwise agreed to by Spectrum and prior to Spectrum initiating the
Project, Client will tender payment equal to the estimated Project Costs
for the first month of the Project. This down payment will apply to the
final installments of progress
billing.
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j.
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Accounts
that are past due may be placed on hold and internal resources
reallocated.
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k.
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If
no credit is requested or credit approval has not occurred, Client will
make periodic estimated advance payments in amounts set by
Spectrum. The estimated advance payment and the payment of any
outstanding balance on Client’s account must be received in order for work
on the Project to proceed. Project Costs will be charged
against the Client’s account as they accrue. A statement of
Client’s account and Project Costs charged against it will be sent
periodically or will be available upon reasonable
request.
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l.
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Accounts
that exceed the credit terms or fail to maintain a positive balance will
immediately be placed on hold and internal resources will be reallocated
until the account is paid. If internal resources are
reallocated due to lack of funds or a past-due account balance, Spectrum
cannot guarantee the date when internal resources will be available for
allocation to the Project and any Project time estimates will be deemed
withdrawn.
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m.
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If
Client terminates or suspends the Project, Client agrees to pay Spectrum
for accrued Project Costs and for additional Project Costs incurred in
terminating or suspending the
Project.
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n.
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Spectrum
will send final ▇▇▇▇▇▇▇▇ or a final statement immediately upon conclusion
of the Project. Credit balances remaining in Client’s account
after final payment will be
refunded.
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4.
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Deliverables, Testing
And Acceptance.
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a.
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Project
Deliverables will be tested by Spectrum and Client according to the
DVT. If a Deliverable fails to pass a DVT requirement, the
Deliverable will be revised and then retested. The process of
revision and retesting will continue iteratively until the Deliverable
passes the applicable requirements. Once a Deliverable passes
the requirements of the DVT, it is deemed
accepted.
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b.
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When
the Project is concluded, terminated or suspended and full Payment has
been received by Spectrum, Spectrum will deliver to
Client:
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i.
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any
remaining Deliverables;
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ii.
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unused
project materials purchased by Spectrum for the Project;
and
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iii.
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source
code files.
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c.
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Executables
that are delivered during the course of the Project and prior to full
payment of Project Costs may be trial versions only and may function only
during the trial period.
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3
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5.
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Intellectual Property
Rights.
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a.
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In
connection with its performance of the Project, Spectrum may use certain
tools, utilities, modules, techniques, processes, knowledge, data, code or
other materials that Spectrum developed (or had developed) independently
of any work on the Project (collectively, “Spectrum
Technology”). As between Spectrum and Client, Spectrum will
retain sole and exclusive ownership of all Spectrum Technology, including
all Intellectual Property Rights
therein.
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b.
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In
connection with its performance of the Project, Spectrum may produce
software, Source Code, Object Code, or a set of Schematics that (a)
implements hardware-level functionality or (b) consists of
intermediate–level or low-level technology building blocks that provide
basic functionality and consist of routines that may be used in different
contexts and that are not unique to the deliverable and which shall remain
the property Spectrum (“Intermediate
Code”).
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c.
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Unless
otherwise specified in the Project Documents, to the extent that Spectrum
incorporates any Spectrum Technology or Intermediate Code into the
Deliverables, Spectrum hereby grants to Client a non-exclusive,
irrevocable, perpetual, royalty-free, fully paid-up, worldwide license to
make, have made, use, offer to sell, sell, import, copy, modify, create
derivative works based upon, distribute, sublicense, display, perform and
transmit such Spectrum Technology and Intermediate Code in conjunction
with Client’s commercial utilization of the
Deliverables.
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d.
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Excluding
Spectrum Technology, Intermediate Code and any third party materials and
information, all developments, discoveries and trade secrets conceived,
discovered, developed or reduced to practice by Spectrum, solely or in
collaboration with Client, that are created in connection with the Project
shall be considered Project “Inventions”. An example of an Invention is
the PCB layout for the project. Once Spectrum receives full
payment of all Project Costs associated with the Project phase in which an
Invention was included as part of the Deliverable, that Invention will
become the sole property of the Client. Prior to receipt of
payment, as described in the preceding sentence, any Project Inventions
remain the sole property of
Spectrum.
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6.
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Confidentiality.
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a.
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Exhibit
B (“Protection Of Proprietary Information”) is incorporated herein. In the
event a separate agreement that protects the confidentiality of a Party’s
Proprietary Information exists and is in effect, the terms of that
separate agreement will control over Exhibit
B.
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b.
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Spectrum
does not consider the fact that it is doing work for the Client in and of
itself to be confidential unless otherwise instructed by the
Client. If the Client does consider its relationship with
Spectrum confidential, and so notifies Spectrum in writing, Spectrum will
only disclose such information with prior approval of the
Client.
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c.
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Spectrum’s
viability in the marketplace is dependent upon the presentation of past
work performed. To that end, Spectrum may make public a general
description regarding its work for Client as an example of Spectrum’s
value to the marketplace, once approved by
Client.
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7.
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Indemnification. Client
shall defend, indemnify and hold harmless Spectrum and its affiliated or
controlling companies, and each of their respective directors, officers,
employees, agents, or customers, from and against any and all claims,
losses, damages, costs, (including legal fees and other litigation
expenses), penalties, liabilities, judgments, amounts paid in settlement,
fines and expenses arising out of or in connection with any claim against
Spectrum that relate to work performed or actions taken in reliance on or
conformity with information, documents, intellectual property, designs,
specifications or instructions provided by
Client.
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8.
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Warranty and
Limitation of Liability. Spectrum warrants that it shall
perform the Project in a workmanlike manner, customary in the
industry. Spectrum warrants that any hardware produced in
conjunction with the Services rendered will perform to generally accepted
industry standards. THIS IS THE ONLY WARRANTY APPLICABLE TO THE
WORK HEREUNDER. ANY OTHER WARRANTIES OR REPRESENTATIONS
EXPRESS, IMPLIED OR STATUTORY; INCLUDING, WITHOUT LIMITATION, WARRANTIES
OF QUALITY, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT ALLOWED
BY LAW. SPECTRUM DOES NOT WARRANT THAT THE PROJECT DELIVERABLES
WILL MEET CUSTOMER NEEDS OR BE FREE FROM ERRORS. THE FOREGOING
EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND
FORM THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE
SERVICES. IN NO EVENT SHALL SPECTRUM BE LIABLE FOR ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING LOST REVENUE OR
PROFITS. SPECTRUM’S TOTAL LIABILITY HEREUNDER REGARDLESS OF THE
FORUM OR FORM OF ACTION WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CLIENT
UNDER THIS AGREEMENT.
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4
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9.
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Employee
Solicitation.
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a.
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Client
recognizes that Spectrum has a substantial investment in its employees and
design service subcontractors. Client agrees that it will not, except as
set forth in this Agreement, solicit for employment Spectrum employees or
design service subcontractors for a period of two years after completion
of the Project.
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b.
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Spectrum
recognizes that Client has a substantial investment in its employees.
Spectrum agrees that it will not, except for activities related to this
Agreement, solicit for employment Client employees for a period of two
years after completion of the
Project.
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10.
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Governing Law and
Resolution of Disputes.
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a.
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b.
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In
any proceeding or action brought by one of the Parties to enforce or
interpret the provisions of this Agreement, the prevailing Party will be
entitled to be reimbursed by the other Party for its reasonable attorney
fees and other legal costs, in addition to other relief to which that
Party may be entitled.
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11.
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General
Provisions:
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a.
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Assignment. Except
as stated in Section 5, Party may not sell,
assign or delegate any rights or obligations under this Agreement to a
third party, unless the entity receiving the assignment owns a controlling
interest in the assigning Party.
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b.
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Entire
Agreement. This Agreement constitutes the entire agreement
between the Parties with respect to the subject matter herein and
supersedes all prior written and oral agreements between the Parties
regarding the subject matter herein. Any modifications or additions to
this Agreement must be in writing and signed by both
Parties.
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c.
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Headings. Headings
used in this Agreement are for reference only and shall not be considered
when interpreting this Agreement.
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d.
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Impossibility
of Performance. With the exception of a requirement to make a
payment, neither Party shall be liable for any damages or penalty for
delay or for any other failure to perform in accordance with the terms and
conditions of this Agreement if such delay or failure to perform is made
impossible, in whole or in part, due to factors beyond the Party’s
reasonable control, including, but not limited to, a) natural events, b)
acts of government or c) acts of third parties, including criminal acts,
civil unrest, labor disputes, transport and delivery disruption, supply
chain disruptions, cybercrimes or
terrorism.
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e.
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Notices. Any
notice or other communication required or permitted by this Agreement to
be given to a Party shall be in writing and shall be deemed
given:
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i.
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When
delivered, if delivered personally;
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ii.
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When
sent, if transmitted via facsimile (with receipt of confirmation of
complete transmission) to the Party at the Party's facsimile number listed
in this Agreement;
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iii.
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When
sent, if transmitted via email with a copy of the transmission to the
other Party’s email address;
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5
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iv.
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When
received, if sent by commercial service that provides tracking and
confirmation of receipt;
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v.
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Three
business days after posting with the US Postal Service, registered or
certified mail (return receipt requested), for delivery within the United
States;
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vi.
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Seven
business days after posting with the US Postal Service, registered or
certified mail (return receipt requested), for delivery outside the United
States;
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f.
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Severability. If
any provision of this Agreement is found to be illegal or unenforceable,
the other provisions shall remain effective and enforceable to the
greatest extent permitted by law.
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Thank you
for the opportunity to work with your company. Please sign below to
indicate your acceptance of the terms in this Agreement.
Spectrum
Design Solutions
_______________________________________________________
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
VP of
Technical Sales
Project
Authorization
Estimated
Cost of Development
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Phase
I Labor Fees
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$N/A
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Phase
II Labor Fees
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$184K
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Phase
III Labor Fees
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$103K
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Phase
IV Labor Fees
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$31K
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Phase
IV Labor Fees
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$6K
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No
materials have been included in this estimate. Any materials
purchases to be made by Spectrum will require a signed MOR and/or VOR by
Client.
On behalf
of Client,
The terms and conditions in this
Agreement are acknowledge and accepted, and Spectrum is authorized to perform
the Project.
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Signature
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Printed
Name
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Title
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Date
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6
Exhibit
A: Project Labor Costs
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Technicians
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Electrical
Tech
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$80.00/hr
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Senior
PCB Designer
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$85.00/hr
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Standard
Engineers
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Associate
Engineer/Designer
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$90.00/hr
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Engineer/Designer
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$105.00/hr
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Senior
Engineer/Designer
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$125.00/hr
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Wireless
Engineers
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Associate
Wireless Engineer
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$115.00/hr
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Wireless
Engineer
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$130.00/hr
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Senior
Wireless Engineer
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$150.00/hr
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ASIC
Engineers
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Associate
ASIC Design Engineer
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$115.00/hr
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ASIC
Design Engineer
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$130.00/hr
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Senior
ASIC Design Engineer
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$150.00/hr
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Project
Management
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Project
Coordinator
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$50.00/hr
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Project
Manager
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$125.00/hr
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Exhibit
B
Protection
Of Proprietary Information
In order
to protect Proprietary Information, the Parties agree that:
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1.
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For
purposes of this Exhibit, “Agreement” shall refer to the document to which
this Exhibit is attached. If any provision in this Exhibit conflicts with
the express provisions of the Agreement, the Agreement will
control.
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2.
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Notwithstanding
expiration of the Agreement, all Proprietary Information (as defined
below) disclosed by a Party prior to expiration shall be treated in
accordance with the terms of this Exhibit for so long as it is maintained
in Proprietary Information status.
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3.
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Proprietary
Information (as defined below) may be used by the receiving Party for the
purpose of performing and completing the Project. Proprietary Information
includes any and all current and future product information, business
information, identity of current or future business partners, technical or
financial information including but not limited to software source code,
reports, plans, documents, drawings, inventions, and proposals (a)
disclosed in tangible form clearly labeled or identified in writing as
“confidential”, “proprietary” or words of similar meaning at the time of
disclosure or (b) disclosed in non-tangible form , identified as
“confidential” or “proprietary” or words of similar meaning at
the time of disclosure, and summarized in a writing, designated as
“confidential”, “proprietary” or words of similar meaning, and delivered
to the other Party within thirty (30) days after
disclosure.
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4.
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Unless
otherwise stated in the Agreement, Proprietary Information disclosed
hereunder remains the property of the disclosing Party. Promptly after
receipt of a written request from the disclosing Party, the receiving
Party shall return all documents comprising Proprietary Information to the
disclosing Party. All Proprietary Information is provided “AS IS” without
warranty of any kind. Neither Party is obligated to disclose or
receive Proprietary Information.
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5.
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This
Agreement imposes no obligation upon a receiving Party with respect to
Proprietary Information which (a) was in the possession of, or was known
by, the receiving Party prior to its receipt from the disclosing Party,
without an obligation to maintain its confidentiality; or (b) is or
becomes publicly available through no fault of the receiving Party; or (c)
is rightfully received by the receiving Party from a third Party without a
duty of confidentiality; or (d) is disclosed by the disclosing Party to a
third Party without a duty of confidentiality by the third Party;
or (e) is independently developed by the receiving Party
without a breach of this Agreement; or becomes available to the receiving
Party without a breach of this Agreement; or (f) is disclosed by the
receiving Party with the disclosing Party’s prior written
approval. If a receiving Party is required by a government body
or court of law to disclose Proprietary Information, the receiving Party
agrees to give the disclosing Party prompt written notice sufficient to
permit the disclosing Party to contest the disclosure or seek a protective
order.
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6.
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A
receiving Party shall protect Proprietary Information by using the same
degree of care, but no less than a reasonable degree of care, as it uses
to protect its own similar Proprietary Information and to prevent (a) any
use not authorized herein, (b) dissemination to any employee without a
need to know, (c) communication to any third party or (d)
publication.
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7.
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Neither
Party will be precluded from independently developing technology or
pursuing business opportunities similar to those covered by this
Agreement, as long as it does no without using the Proprietary Information
of the other Party.
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8.
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Each
disclosing Party warrants that it has the right to disclose the
Proprietary Information it discloses
hereunder.
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9.
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A
receiving Party will adhere to all applicable laws and regulations of the
U.S. Export Administration and will not export or re-export any technical
data or products received from a disclosing Party to any proscribed person
or country listed in the U.S. Export Administration regulations unless
properly authorized by the U.S.
Government.
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