TwinEngines Terms and Conditions

TwinEngines Services – Standard Terms and Conditions

These Standard Terms & Conditions in conjunction with TwinEngines’ Standard Development Agreement constitute the entire agreement between TwinEngines and the customer signing the Standard Development Agreement.

SECTION A – SOFTWARE DEVELOPMENT

(i)         Certain Conditions.  On or prior to the Start Date of each project TWINENGINES shall have executed and delivered a Statement of Work with respect to the Project in question; and Customer shall have delivered to TWINENGINES the initial payment of the Project Fee for such Project, in accordance with the terms and conditions of the applicable Statement of Work, which shall be in full force and effect on the Start Date; and Customer shall have satisfied any other conditions  that may be required in advance of the Start Date in respect of any Project.

(ii)        Subcontractors. TWINENGINES may retain third parties to furnish services in connection with any Project.  No such retention shall relieve TWINENGINES from any of its obligations under any TWINENGINES Agreement.  If the Customer requests a  Confidentiality and/or Non-Disclosure Agreements be signed, TWINENGINES shall require such third parties to execute an appropriate  and binding agreement.

SECTION B – POLICIES & PROCEDURES

(i)         Requests for Work. When TWINENGINES receives a request for work, TWINENGINES will generate an initial estimate.  An initial estimate is a good faith estimate of the costs involved in a given project.  The initial estimate is in no way binding and is not included in this or any Agreement.

(ii)        Requirements.  TWINENGINES will then conduct a period of Discovery & Requirements.  Discovery & Requirements involves exact determination of the components and functionality to be delivered upon completion of the project.  TwinEngines will deliver a Statement of Work upon completion of Discovery & Requirements that will outline all elements of the project.  All time for Discovery & Requirements will be billed to the customer at TWINENGINES current hourly rate unless otherwise negotiated with the individual customer.  Upon acceptance of the generated requirements, a customer authorization will be required in order to begin development.  All project development will be based off of these requirements.  Any deviation from this requirements documentation will only be upon agreement between TwinEngines and the customer.  Any additional time and costs due to deviations will be considered outside the project scope and billed accordingly to the customer.

(iii)       Maintenance. TWINENGINES partners with customers to provide an on-going relationship.  As projects grow beyond the original project scope TwinEngines can continue on an hourly basis at TWINENGINES’ then current hourly rate or a new estimate and fee can be defined.

(iv)       Subsequent Projects. New projects do not require new Development Agreements.  A new project requires a new Statement of Work which is subject to the terms set forth in this document and any existing Development Agreement.

SECTION C – WORK DOCUMENTS AND PROJECT SCHEDULE

(i)         Work Documents and Project Schedule. The Statement of Work for a particular Project will set forth the projected agenda for creation, installation, and implementation of the Work Results. All statements and warranties concerning time are merely good faith estimates based upon factors existing at the time they were made, and are subject to equitable adjustment.

(ii)        Excusable Delays. Either party shall be excused from delays in performing, or from its failure to perform, hereunder to the extent that such delays or failures result from causes beyond the reasonable control of such party. Customer acknowledges that delays by Customer in completing tasks required of Customer or performing Customer’s obligations under this Agreement may impede or delay completion of the Development Services.

SECTION D – OWNERSHIP AND RIGHTS

(i)         Ownership of Work. Customer acknowledges that, in the course of developing the Custom-Developed Software, TWINENGINES may have gained ideas, concepts, models, know-how, methodologies and techniques applicable to other software development projects, and nothing in the Development  Agreement shall be deemed to limit TWINENGINES’ use of such ideas, concepts, models, know-how, methodologies and techniques of TWINENGINES generally contained in or otherwise related to the Custom-Developed Software for any purpose without restriction or obligation.

(ii)        Licenses to Use. Subject to the terms, conditions and limitations contained in the Development  Agreement, TWINENGINES hereby grants to Customer a nonexclusive, paid-up and perpetual license to use, modify (including to prepare derivative works) and copy (collectively, “Use”) for its own internal Use so much of the TWINENGINES Proprietary Information as may be comprised within any Work Result. Customer hereby disclaims any ownership interest in or to the object code or any portion thereof. Customer acknowledges that the Custom-Developed Software does not include any ownership interest in any third-party software; Customer acknowledges that Work Result is expected to comprise licensed rights for Customer’s use of certain third-party software.

Customer acknowledges that the System may include elements of software provided by a third party, and Customer shall be responsible for any licensing fees payable in respect of such third-party software; TWINENGINES will cooperate with Customer to cause any such third party to license Customer to Use such third-party software upon Customer’s payment therefor.

(iii)       TWINENGINES’ Ownership of TWINENGINES Proprietary Information. To the full extent of TWINENGINES’ ownership thereof immediately prior to the date of this agreement, TWINENGINES has and will at all times retain sole and exclusive title to and ownership of the TWINENGINES Proprietary Information including object code, in whole and in part, and all copies thereof, and all worldwide proprietary rights therein, including all patents, copyrights, trade secrets and other intellectual property rights therein. Nothing in the Standard Development Agreement or otherwise shall be construed as granting or shall grant to Customer any right, title or interest in the TWINENGINES Proprietary Information or any of such proprietary rights, other than the license granted pursuant to the Development Agreement. No license, right or in any trademark of TWINENGINES, trade name or service mark of TWINENGINES is granted hereunder.

(iv)       Certain Confidentiality Obligations. Customer acknowledges that the TWINENGINES Proprietary Information constitutes valuable confidential and proprietary information of TWINENGINES. Customer and its affiliates shall:  hold all TWINENGINES Proprietary Information in confidence and neither disclose nor release TWINENGINES’ Proprietary Information to any other person or entity; not use TWINENGINES Proprietary Information for any purpose whatsoever, except as expressly permitted under the Development Agreement; disclose TWINENGINES’ Proprietary Information to only those of its employees having a need to know such information; and take all reasonable precautions to ensure that its employees comply with the provisions of this Section (iv).

SECTION E – CHANGES

(i)      Termination by Customer if Necessary Change Declined. If Customer proposes a change upon which the parties cannot reach agreement, and Customer in good faith believes its change is feasible and necessary for the System to meet its operational objectives, Customer may (in its discretion) terminate any particular Project, provided that it compensates TWINENGINES in an equitable manner for all services rendered and items ordered, procured or delivered, through the date of such termination. Customer shall compensate TWINENGINES on a time-and-materials basis, at TWINENGINES’ regular rates, in respect of such cooperation and delivery.

SECTION F – SYSTEM COMPLETION AND ACCEPTANCE

(i)      Acceptance Criteria. Customer is responsible for the development of any Acceptance Criteria. TWINENGINES will consult with, support and review Customer’s Acceptance Criteria provided that the Acceptance Criteria are submitted to TWINENGINES for review at least thirty (30) days (unless the parties mutually agree in writing otherwise) prior to the anticipated delivery date of any software. The test or tests for such assessment and acceptance in respect of any Project are referred to in the Development Agreement as the “Acceptance Test.”

(ii)     In the event that Customer shall have developed Acceptance Criteria or any Acceptance Test in respect of any Project that does not conform to that Project’s Statement of Work, Customer’s project director and TWINENGINES’ project director shall negotiate in good faith to complete the Acceptance Criteria or the Acceptance Test to so conform. If they shall prove unable to agree, then they shall select a mediator familiar with the industry to assist them in preparing Acceptance Criteria and Acceptance Tests that conform to the Statement of Work for such Project. Customer and TWINENGINES shall bear the costs of such mediation equally.

(iii)    During any Acceptance Test period, Customer shall notify TWINENGINES in writing, or by other mutually agreeable means, of items not conforming to the Acceptance Test plan. Upon completion of the 10-day period, testing shall cease and TWINENGINES will make outstanding corrections to such Work Result such that it conforms with the Acceptance Criteria for the Project. Once the corrections are complete and the software or System passes the Acceptance Test, the creation, installation and implementation of the Work Result shall be considered complete and accepted by Customer.

(iv) Completion and Acceptance. At such time as the Acceptance Test demonstrates that the software or System functions substantially in accordance with each aspect of the Project’s Statement of Work, Customer shall be considered to have accepted the fully implemented and complete Work Result. If TWINENGINES is unable to remedy all items on the final corrections list, then Customer’s exclusive remedy and TWINENGINES’ entire liability in contract, tort, or otherwise shall be as set out in Sections 7 and 8 of the Standard Development Agreement.

(v) Maintenance. TwinEngines can be contacted to perform maintenance based on a separate statement of work. Non-contracted maintenance will be billed at TwinEngines’ Maintenance Rate.

SECTION G – FREEDOM OF ACTION; CONFIDENTIALITY

(i)      Dealing With Others. TWINENGINES is engaged in the business of providing systems analysis, integration services, contract programming and other computer-related services to a variety of customers, and nothing in this Agreement shall prevent TWINENGINES from using its and its personnel’s general skills in pursuing such business with any other customer on any other terms, whether or not similar or identical to those provided under this Agreement or any Statement of Work. TWINENGINES shall be free to use and disclose in such business pursuits any data-processing or information-processing techniques, concepts, ideas, or object embodied in any Work Result or otherwise developed or learned by TWINENGINES in the course of rendering Development Services.

(ii)     Confidentiality of Customer’s Business Information. At the request of Customer, TWINENGINES shall  execute a separate bilateral Non-Disclosure/Confidentiality Agreement as an addendum to this Agreement.

SECTION H – CERTAIN OBLIGATIONS OF CUSTOMER AND TWINENGINES

(i)      Certain Warranties and Representations. To induce each party to enter into this  Agreement and perform the Development Services provided for in this  Agreement, the parties each warrant and represent to each other, as of the date hereof and as of each Start Date, as follows:

(ii)     Validity.  Customer is an entity organized, validly existing and in good standing under the laws of the State of its organization has the power and authority to own, operate and lease its properties and to carry on its business as now conducted and is qualified to do business in each Jurisdiction in which the nature of its business requires qualification.  TWINENGINES is a corporation organized, validly existing and in good standing under the laws of the State of Georgia, has the power and authority to own, operate and lease its properties and to carry on its business as now conducted and is qualified to do business in each jurisdiction in which the nature of its business requires qualification.

(iii)    Authority.  Customer has the right, power and authority to enter into and perform its obligations under this  Agreement and all Statements of Work. Customer’s execution, delivery and performance of this  Agreement has been, and of all Statements of Work will be, duly and validly authorized by all necessary action on Customer’s part.  TWINENGINES has the right, power and authority to enter into and perform its obligations under this Agreement. TWINENGINES’ execution, delivery and performance of this Agreement has been duly and validly authorized by all necessary action on TWINENGINES’ part.

(iv)    Binding Agreement.  This Agreement and all Statements of Work, as executed and delivered from time to time, have been duly executed and delivered by Customer, and each is a valid and binding obligation of Customer, enforceable against Customer in accordance with its terms.  This Agreement has been duly executed and delivered by TWINENGINES and is the valid and binding obligation of TWINENGINES, enforceable against TWINENGINES in accordance with its terms.

(v)     As of the date hereof, TWINENGINES believes it has the ability to perform the Development Services in accordance with the Statement of Work.

SECTION I – DEFINITIONS

For purposes of TwinEngines’ Standard Development Agreement,

(i)         “Acceptance Criteria” means the acceptance criteria to be developed by Customer and TWINENGINES for the Acceptance Test.

(ii)        “Custom-Developed Software” means, collectively, Work Results that comprise the computer instructions and programming code that TWINENGINES shall develop pursuant to any Statement of Work following the date of the Standard Development Agreement specifically for use by Customer. Without limiting the generality of the foregoing, Custom-Developed Software includes any original work of authorship constituting new computer software code or a modified part of a programming statement that, in either case, is developed pursuant to the Statement of Work after the date of the Standard Development Agreement.

(iii)       “Effective Date” means the date on which Customer and TWINENGINES shall have executed and delivered the Standard Development Agreement.

(iv)       “Excusable Delay” means any delay described as excusable in Section C (ii) of these Terms & Conditions.

(v)        “Payment Schedule” means the schedule of payment terms attached to the Statement of Work.

(vi)       “Project” means any specific project that Customer shall engage TWINENGINES to perform or deliver, as described in a Statement of Work from time to time.

(vii)      “Project Fee” means the sum payable to TWINENGINES by Customer in respect of any Project, as such sum is described in Statement of Work, from time to time.  TwinEngines charges hourly for Requirements and/or Maintenance and changes a flat fee for development.

(viii)      “Project Materials” means, collectively, Work Documents, Project Schedule, Acceptance Criteria and such other materials concerning the design, installation, testing, and performance of the System as become available during the course of the creation, installation and implementation of the System.

(ix)       “Project Schedule” means the Project Schedule comprised within the Statement of Work.

(x)        ” Proprietary Information” means, collectively, any and all ideas, inventions, concepts, models, know-how, methodologies, techniques and trade secrets contained therein or otherwise related thereto, and all other data, information or intelligence, all of which is the property of and is confidential to TWINENGINES and includes any Software or Documentation or any portion of the Software or the Documentation, whether or not expressly stated.

(xi)       “Start Date” means the date of commencement of Work in respect of any Project.

(xii)      “Statement of Work” means the description of work, as in effect from time to time, to be attached to the Standard Development Agreement to describe any particular Project to be effected by TWINENGINES on behalf of Customer.

(xiii)      “System” means, with respect to any Project, the system more particularly described in the Statement of Work and other Work Documents for such Project.

(xiv)     “System Warranty Period” means the period of 30 days following the date of the Acceptance Certificate for such System.

(xv)      “TWINENGINES” means TWINENGINES, INC., a Georgia corporation with its principal office located at 154 Krog Street, Suite 140, Atlanta, GA 30307.

(xvi)     “Work” means the Development Services to be provided from time to time under specific Projects.

(xvii)     “Work Documents” means, collectively, the Statement of Work and related documents attached to the Standard Development Agreement from time to time with respect to particular Projects.

(xviii)    “Work Result” means, collectively, the deliverables, software, any System or other end product of Work.

SECTION J – MISCELLANEOUS

(i)         No Agency. TWINENGINES, in rendering the Development Services, from time to time, is acting solely as an independent contractor. Customer does not undertake by any  Agreement to perform any obligation of TWINENGINES. TWINENGINES and Customer expressly do not intend hereby to form a partnership.

(ii)        Multiple Counterparts.  The Standard Development Agreement and any Work Documents may be executed in several counterparts, all of which taken together shall constitute one single Agreement between the parties.

(iii)       Section Headings; Exhibits. The section and subsection headings used herein or in any Statement of Work are for reference and convenience only and shall not enter into the interpretation hereof. The appendices, attachments or exhibits referred to herein and in the Standard Development Agreement hereto are incorporated to the same extent as if set forth in full as a single agreement.

(iv)       Required Approvals. Where agreement, approval, acceptance, or consent by either party is required by any provision of the Standard Development Agreement, such action shall not be unreasonably conditioned, delayed or withheld.

(v)        No Waiver. No delay or omission by either party hereto to exercise any right or power occurring upon any noncompliance or default by the other party with respect to any of the terms of the Standard Development Agreement or any Work Documents shall impair any such right or power or be construed to be a waiver thereof. A waiver by either of the parties hereto of any of the covenants, conditions, or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein or therein contained.

(vi)       Governing Law.  The Standard Development Agreement and all Work Documents shall be governed by and construed in accordance with the laws of the State of Georgia.

(vii)      Entire Agreement.  The Standard Development Agreement and the appendices, attachments and exhibits hereto constitute the entire agreement between the parties. No change, waiver, or discharge hereof shall be valid unless it is in writing and is executed by the party against whom such change, waiver, or discharge is sought to be enforced. In the event of any conflict among the Work Documents and the Standard Development Agreement, the Work Documents’ terms and provisions shall control, and in the event of any conflict among the Work Documents shall control.

(viii)      Personnel; Subcontracting. TWINENGINES shall have sole responsibility for the assignment of personnel to the Development Services. Such personnel shall not be restricted or prevented from performing services for others that are similar the Development Services.

(ix)       No Assignment. Neither party may, without the prior written consent of the other party, assign or transfer this Agreement or any obligation incurred hereunder, except by merger, reorganization, consolidation, or sale of all or substantially all of such party’s assets. Any attempt to do so in contravention of this Section shall be void and of no force and effect.

(x)        Taxes. Unless tax exempt, Customer agrees to pay amounts equal to any sales taxes resulting from this  Agreement or any Statement of Work, or any components or services provided by TWINENGINES to Customer pursuant to this  Agreement or any Statement of Work, exclusive of taxes based on TWINENGINES’ net income.