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`EXHIBIT A
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`O
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`O Attachment 4 (b)
`
`Folio} Software Inc.
`CONTRACTOR AGREEMENT
`DATE FILED: September 24, 2019 10:20 AM
`agrdikLfiNGeIm BSBMIDantflodate work schedule
`'eQGfiSE NUMBER: 2019CV32289
`
`THIS CONTRACTOR AGREEMENT (“Agreement”) is made and
`entered into this March l4, 2014. ("Effective Date") by and
`between Sopris Systems, LLC (“Client“) having its principal place
`of business at 7887 E. Belleview Avenue. suite l l00. Englewood.
`CO 801 ll and Foli03 Software lnc., having its principal address
`333 Twin Dolphin Drive. Redwood City. CA 94065
`(“Contractor").
`
`WHEREAS, Contractor is in the business of providing sottware
`consulting services for customers;
`
`WHEREAS. Contractor is willing to provide consulting services
`under this Contractor Agreement to Client ("Work");
`
`NOW THEREFORE, the parties wish to be bound as follows:
`
`1. RELATIONSHIP OF THE PARTIES
`
`systems
`1.1. Contractor has agreed to provide programming,
`analysis.
`engineering. marketing.
`technical writing or other
`specialized services
`as
`an
`independent contractor
`to client
`("Client")
`
`2. SERVICES AND WORK
`
`Work. All work and performance under this Agreement
`2.1.
`shall be pursuant to one or more Work Orders, substantially in the
`form of Exhibit A attached to this Agreement (“Work Orders”).
`each of which shall be in writing and signed by both parties. In
`general.
`the purpose of the Work Order is to identify the work,
`functions. equipment. facilities and other resources to be provided
`by Contractor for the tasks specified in the Work Order to be
`performed by Contractor.
`
`Conduct of Work. All Work shall be performed in a
`2.2.
`workmanlike and professional manner.
`
`Method of Performing Work. Contractor shall have the
`2.3.
`right to determine the method, details, and means of performing the
`Work. Client is entitled to exercise general powers of supervision
`and control over the results of work performed by Contractor to
`assure satisfactory performance. including the right to inspect. the
`right
`to stop work.
`the
`right
`to make
`suggestions
`or
`recontmendations as to the details of the Work, and the right to
`propose modifications to the Work.
`
`Resources Provided. Client may provide third party
`2.4.
`tools or operating systems ("Resources”) to Contractor which are
`licensed to Client, for Contractor's temporary use in performing the
`Work.
`In compliance with such third party vendor
`license
`restrictions. Contractor may only use such Resources for the
`limited purpose of performing the Work. Contractor is not granted
`any license or sublicense to the Resources outside of this limited
`use. Upon termination of this Agreement. Contractor agrees to
`retum the Resources to Client and/or to certify in writing to Client
`that Contractor has destroyed all copies of such Resources in its
`possession.
`
`Reporting. Contractor agrees to provide Client with
`2.6.
`written time and progress reports on a monthly basis. Unless
`otherwise requested by Client. Contractor's standard reports shall
`each indicate number of hours or days worked. broken down into
`major task categories:
`
`3. TERM
`
`shall
`initial Term of this Agreement
`Term. The
`3.I.
`commence on the Effective Date of this Agreement and shall
`continue for one (I) year. At the end of the initial Term.
`the
`Agreement will be automatically renew for 1 year. unless otherwise
`requested in writing by either party at least 30 days prior to end of
`the initial term.
`
`Work Order. Term and termination of each Work Order
`3.2.
`executed under this agreement will be specified on the Work Order
`individually (see Exhibits).
`
`Sections 6.
`above,
`Survival. Notwithstanding the
`3.4
`(Confidentiality), 1. (Ownership Rights), 8. (Unfair Competition).
`9. (Non Solicitation of Employees). ll. (Indemnification) and l2.
`(Miscellaneous) shall continue in full force and effect after the end
`of the Agreement's Term.
`
`4. FEES. EXPENSES, AND PAYMENT
`Fees. in consideration of the Work to be performed by
`4.].
`Contractor. Contractor shall be entitled to compensation at the rate
`defined in the applicable Work Order. Contractor shall
`invoice
`Client on a monthly basis, together with the reports required in
`Section 2.6. (Reporting). above. Client shall pay Contractor within
`thirty (30) days of receipt of an invoice or earlier. per the payment
`terms indicated in the invoice. A late penalty of 3% of the invoiced
`amount will be applied on any invoices not paid within 60 days of
`invoice receipt date. A further penalty of 3% per month will be
`applied on amounts that are not paid within 60 days of the receipt
`dale.
`
`the
`addition to
`In
`Reimbursement of Expenses.
`4.2.
`foregoing. Client
`shall pay Contractor's actual out-of-pocket
`expenses.
`if any. as reasonably incurred in furtherance of its
`performance under this Agreement. provided that such expenses are
`preoapproved in writing by Client. Contractor agrees to provide
`Client with access to such receipts. ledgers. and other records as
`may be reasonably appropriate for Client or its accountants to
`verify the amount and nature of any such expenses. Expenses shall
`be reimbursed within thirty (30) days of receipt of Contractor's
`invoice.
`
`5. CONTRACTOR'S RESPONSIBILITY
`FOR TAXES AND OTHER MATTERS
`
`Tlmelines. The Work, as defined in each Work Order.
`2.5.
`must be delivered on a timely basis in accordance with the
`milestone deliverables defined in each Work Order. Contractor
`
`Taxes. As an independent contractor. Contractor shall
`5.1.
`pay and report all federal and state income tax withholding. social
`
`
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`EXHIBIT A
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`O
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`to
`applicable
`insurance
`and unemployment
`taxes.
`security
`Contractor. Contractor shall not be entitled to participate in health
`or disability insurance. retirement benefits, or other welfare or
`pension benefits (if any) to which employees of Client may be
`entitled.
`
`6. CONFIDENTIALITY
`
`Restrictions. Contractor acknowledges that. in order to
`6.].
`perform the Work called for in this Agreement, it shall be necessary
`for Client
`to
`disclose
`to Contractor
`certain Confidential
`lnfonnation (defined below) which may include trade secrets of
`Client. Contractor agrees that it shall not disclose. transfer, use.
`copy, or allow access to any such Confidential Information or trade
`secrets to any third parties. except as authorized by Client.
`
`Definition. Contractor agrees that information disclosed
`6.2.
`by Client. including. but not limited to. information learned from
`Client's intellectual property, that relates to existing and future
`products
`or
`services.
`designs.
`business
`plans.
`business
`opportunities.
`finances.
`research.
`development.
`know-how.
`personnel. or third party confidential
`information. and the terms
`and conditions of this Agreement, will be considered and referred
`to collectively in this Agreement as “Confidential Information."
`Confidential lnforrnation. however. does not include information
`that I) is now or subsequently becomes generally available to the
`public through no fault or breach on Contractor's part; 2)
`Contractor can demonstrate to have rightfully had in its possession
`prior to disclosure by Client; 3) is independently developed by
`Contractor without the use of any Confidential lnforrnation; or 4)
`Contractor rightfully obtain from a third party who has the right to
`transfer or disclose it.
`
`7. OWNERSHIP RIGHTS
`
`satisfactorily
`and
`fully
`If Client
`Ownership.
`7.1.
`performs all of all its obligations under this Agreement. including
`but not limited to those arising under Paragraphs 4. all right. title.
`and interest. including copyright interests and any other intellectual
`property in and to the Work or any deliverables created by the
`Work. including but not limited to any programs, systems. data. or
`materials produced or provided by Contractor alone or
`in
`combination with Client and/or its employees under this Agreement
`shall be the property of Client. Contractor agrees to assign. and
`upon their creation. automatically assign. to Client the ownership
`of such Work.
`including copyright
`interests
`and any other
`intellectual property therein.
`
`Contractor's Ownership. The Work to be produced
`7.2.
`under this agreement will
`include modules that have or will be
`separately created by the Contractor. and will be clearly identified
`as such. Contractor will retain ownership of these modules. Client
`and Contractor are considering a partnership which can entail
`sharing of the intellectual Property and any Revenues arising from
`the joint development effort. Terms of that partnership will be
`specified in a future agreement.
`
`7.3 Cooperation. Without charge to the Client. and at the Client's
`expense, Contractor will. both during its assignment with the Client
`and at any time thereafier. sign all papers including. assignments of
`rights. give evidence and testimony. and perform all acts that. in the
`sole view of the Client. are necessary, proper and expedient to
`
`establish and protect the Client's rights in its Intellectual Property.
`
`7.4 Appointment of Agent. Contractor irrevocably appoints the
`Chief Executive of the Client or the Chief Executive's designee to
`act as agent and attorney in fact to perform all acts necessary to
`obtain patents or copyrights to the Client‘s Intellectual Property if
`(i) Contractor refuses to perform these acts so requested or (ii) is
`unavailable. within the meaning of the United States Patent and
`Copyright laws or (iii) if Contractor is unable to do so.
`
`8. UNI-‘AIR COMPETITION
`
`Both parties acknowledge and agree that the sale or unauthorized use
`or disclosure of either party’s Confidential lnforrnation obtained by
`the other party during the course of its engagement.
`including
`infomiation concerning customer
`lists. marketing
`plans,
`and
`prospective customer
`lists. constitutes unfair competition. Both
`patties promise and agree not to engage in any unfair competition
`with each other either during the term of its engagement or at any
`time thereafter.
`
`9. NON SOLICITATION OF EMPLOYEES
`
`Non Solicitation. Each party agrees that it shall not solicit
`9.].
`or hire any of the other party's current or former personnel during the
`term of this Agreement or for twelve ( I2) months after the conclusion
`of Contractor’s services under this Agreement. without the written
`consent of the other party.
`
`IO. WARRANTIES
`
`10.1.
`
`Contractor represents and warrants that:
`There are no outstanding agreements or obligations that
`I.
`are in conflict with the terms of this Agreement. or that would
`preclude Contractor from complying with the provisions of this
`Agreement;
`2.
`The Work and deliverables are year 2000 compliant.
`
`I I. INDEMNIFICATION
`
`Further Indemnification. Contractor further agrees to
`II.I.
`indemnify. hold harmless and. upon Client's request. defend Client
`and its directors. officers. employees and agents from and against
`all
`less.
`liability. damages. claims and expenses.
`including
`reasonable attorneys’ fees. arising out of claims or suits for damage
`or injury to persons or property in connection with. In whole or in
`part. 1) any negligent act. omission. or willful misconduct of
`Contractor
`in the performance of
`this Agreement; and 2)
`Contractor's failure to comply with federal. state or local law.
`
`12. MISCELLANEOUS
`
`Entire Agreement. This Agreement constitutes the entire
`12.l.
`agreement of the parties hereto and supersedes
`all prior
`representations. proposals. discussions.
`and communications.
`whether oral or in writing. This Agreement may be modified only
`in writing and shall be enforceable in accordance with its terms
`when signed by the party sought to be bound.
`
`that one or more of the
`In the event
`Severablllty.
`12.2.
`provisions made in this Agreement shall. for any reason. be held to
`be invalid. illegal or unenforceable in any respect. such invalidity.
`illegality or unenforceabiiity shall not affect any other provision of
`
`
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`injunctive relief, rescission.
`monetary damages. punitive damages,
`restitution, costs and attorney's fees. The arbitration award shall be
`final and binding regardless of whether one of the panics fails or
`refuses to participate in the arbitration. The arbitrator shall not have
`the power to amend this Agreement in any respect. Notwithstanding
`the foregoing. the parties agree that this Section does not apply to the
`breach of provisions pertaining to confidentiality and proprietary
`rights. and that either party may petition a court of law for injunctive
`relief and such other rights and remedies as it may have at law or
`equity against such breaches.
`
`12.10. Attomeys' Fees. In the event ofany dispute with respect to
`this Agreement, the prevailing party shall be entitled to reasonable
`attomeys' fees and other costs and expenses incurred in resolving
`such dispute.
`
`lN WITNESS WHEREOF. the panics have caused this
`Agreement to be executed by their duly authorized representatives,
`on the date and year first above written.
`
`
`
`Name and Title: Laura A. Pfohl CEO
`
`Name and Title:
`
`this Agreement. but this Agreement shall be construed as if such
`invalid.
`illegal or unenforceable provision had never been
`contained herein. provided however that, if any one or more of the
`provisions contained in this Agreement shall for any reason be held
`to be excessively bread as to time. duration, activity or subject,
`such provision shall be construed, by limiting or reducing it. so as
`to be enforceable to the extent compatible with the applicable law
`as it shall then appear.
`
`Governing Law. This is a California contract and shall
`12.3.
`be construed under and be governed in all respects by the laws of
`the State of California. without regard to the principles of conflict
`of law of any jurisdiction. Subject in the first
`instance to the
`Alternative Dispute Resolution Provision set
`forth below.
`the
`parties hereto irrevocably submit to the exclusive jurisdiction of
`any United States federal or California state court. in any action or
`proceeding arising out of or relating to this Agreement and the
`parties hereto irrevocably agree that all claims in respect of such
`action or proceeding shall be heard and determined in any such
`court.
`
`Independent Contractors. The parties are and shall be
`12.4.
`independent contractors to one another, and nothing herein shall be
`deemed to cause this Agreement to create an agency. partnership.
`or joint venture between the parties. Nothing in this Agreement
`shall be interpreted or construed as creating or establishing the
`relationship of employer and employee between Client and either
`Contractor or any employee or agent of Contractor.
`
`Force Maleure. Contractor shall not be liable to Client
`12.5.
`for any failure or delay caused by events beyond Contractor's
`control
`including, without
`limitation. Client's failure to firmish
`necessary information. sabotage, failure or delays in transportation
`or communication. failures or substitutions of equipment,
`labor
`disputes. accidents, shortages of labor,
`fuel.
`raw materials or
`equipment. or technical failures.
`
`Presumptlon. This Agreement shall be interpreted in
`12.6.
`accordance with the plain meaning of its terms and not strictly for
`or against either of the parties.
`
`\Notices. All notices required or permitted under this
`12.7.
`Agreement shall be in writing addressed to the respective parties as
`set forth herein. unless another address shall have been designated,
`and shall be delivered by hand or by registered or certified mail.
`postage prepaid.
`
`Mediation. The parties agree that they shall endeavor to
`12.8.
`settle any dispute that arises under this Agreement by mediation. The
`parties agree to conduct the mediation in San Jose, CA with the third
`party referred by the American Arbitration Association under its rules
`for Mediation. The cost of mediation shall be borne equally by the
`parties.
`
`Arbitration. Any controversy or claim arising out of or
`12.9.
`relating to this Agreement, or breach of this Agreement. that has
`failed to settle by mediation, above. shall be settled by arbitration in
`San Jose, CA. administered by the American Arbitration Association
`in accordance with its then current Commercial Arbitration Rules.
`and judgment on the award rendered by the arbitrator may be entered
`in any court having jurisdiction thereof. The arbitrator may award
`
`
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`EXHIBITA
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`0
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`Work Order No.: W-SOP-03-17-2014
`
`Exhibit A
`Work Order I
`
`This Work Order is entered into as of the 17'" of March. 2014 by and between Client and Contractor.
`
`1. Relationship to Agreement:
`This Work Order is subject to all the terms and conditions of the Contractor Agreement ("Agreement") executed by Client and
`Contractor on March I4, 2014.
`
`2. Etfective Date and Term:
`The Term of this work order is I year. The work order will be automatically renewed for subsequent
`otherwise requested in writing by either pany at least 90 days prior to the end of each term.
`
`1 year terms unless
`
`3. Fees:
`
`One time:
`USS 5,l72 - initiation fee.
`
`Ongoing:
`US$20/hour based on actual effort, for all work related to a product in which Client is sharing revenue with the Contractor.
`
`4. Revenue Share:
`Client will share 25% of all Revenue collected for this Work Product with Contractor in perpetuity. Revenue Share will be
`calculated and paid out on a quarterly basis. Client will provide Contractor with a quarterly report of Revenue Bookings and
`Collections.
`
`5. Summary of Purpose For Work Order (General description of work or services): Sofiware development, project management.
`technical writing. graphics desigt and sales and marketing support work.
`As specified in attached proposal in Exhibit B.
`
`6. Equipment and Programming To Be Provided By Client,“ any:
`TBD
`
`7. Schedule and Performance Milestones: This schedule sets for the target dates and performance milestones for the preparation
`and delivery ofthe Deliverables by Contractor.
`
`TBD
`
`lN WITNESS WHEREOF, and in acknowledgment that the parties hereto have read and understood each and every
`provision hereof, the parties have executed this Work Order on the date first set forth above.
`
`AGREED:
`
`Client:
`
`
`
`
`Signature
`
`‘Laura A. Pfohl, CEO
`Name and Title
`
`Contractor:
`
`
`
`Signature
`
`
`Name and Title
`
`
`
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`EXHIBIT A
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`0
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`Exhibit B
`
`
`
`Sopris Systems
`
`Mobile App for GeoSpec
`
`Version 1.2
`
`March 17, 2014
`
`
`
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`WW
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`EXHIBIT A
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`0
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`Document Overview
`
`..... . .......
`
`........................
`
`...........
`
`............. ........... . ..... 4
`
`Table of Contents
`
`Solution Overview.... .................................... ..........
`
`..........
`
`............................ 4
`
`UI Layer and FIow.............................
`
`......
`
`......... .......
`
`4
`
`Server Side - Middleware Component......
`
`........................................... .............. 5
`
`Team Composition .......................... .......
`
`.................
`
`..........
`
`Approach................. ...........................
`
`............
`
`............... . .........
`
`5
`
`6
`
`6.1 Phase 1: ...............................................................................
`
`6
`
`6.2 Phase 2: ..........
`
`.....
`
`........
`
`................
`
`........ . ....... 7
`
`6.3 Phase 3: ...................
`
`.........
`
`.....
`
`7
`
`Level of Effort
`
`.....................
`
`..........
`
`.....
`
`7
`
`Project Assumptions ...........
`
`.............................................. .. ................................. 8
`
`Project Dependencies........... . .................................................................................. 9
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`6.
`
`7.
`
`8.
`
`9.
`
`10.
`
`Risk Management & Reporting .....
`
`..................
`
`9
`
`11. References .................................................. ........
`
`...................... 9
`
`
`
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`1 . Document Overview
`
`The purpose of this document is to outline the high level scope of project and provide an
`estimation of effort for the Mobile Application for Sopris Systems.
`
`2. Solution Overview
`
`The Mobile apps will be developed as a cross platform solution (using @9333) for iOS,
`Android & Windows platforms. The purpose for using Sencha is to enable us in developing a
`cross platform app that combines the capabilities of HTMLS and C883. The effort will go
`into one single application that can be deployed on iOS, Android and Windows platforms.
`Folio3 will use its existing Mobile app — DynAx as a baseline and will customize the mobile
`app by adding new screens/forms as per the requirements provided by Sopris Systems. It will
`be a new app and existing screens of DynAX app will no longer be part of this new app. The
`app will be able to communicate with client’s AX server through server side middleware with
`valid AX user and can read/write data accordingly.
`
`3. UI Layer and Flow
`
`The Mobile app will have the forms/screens and flow that have been described in the
`requirement document provided by Sepris Systems.
`Screen/Forms:
`
`1. Splash & Login Screen
`2. Service Order Listing (50 - Open)
`3. Service Order Item (SO Detail - View/Edit)
`4. Service Task Llstlng (ST - Open/Delete)
`5. Service Task Item (ST Item Detail - View/Edit)
`6. Add Service Task
`
`7.
`
`ST Data Form (View/Edit)
`a. Soil Sample ST Data Form
`b. Soil Compaction ST Data Form
`c.
`Field Observation ST Data Form
`
`
`
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`4. Server Side - Middleware Component
`
`The server component of the application will be developed and deployed to any cloud
`provider to support the functionalities of the app. This will be a middleware and will be
`responsible of all types of communication and configuration b/w app and AX server. This
`component will also handle the authentication, authorization and crud operations b/w app
`& server.
`
`5. Team Composition
`
`Client
`
`Proigct Manager - Sopris Systems will assign a project owner for this project, who will provide
`signoff on their behalf, act as the single point of contact and provide feedback about artifacts
`
`produced during the project.
`
`
`
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`Follo3
`
`Proiect Manager (1) — Foli03 will also assign a project manager for this project, who will manage the
`project's schedule,
`risks, cost and resources. The Foli03 Project manager will also act as a
`
`relationship manager with Sopris Systems and will be single point of contact for Sopris Systems, for
`all project related queries. (Part time)
`
`Graphigs Designgr (1) - The Foli03 Graphic Designer will design the mockups, assets and UI of the
`
`mobile, create html/CSS for the pages of the mobile app. (Part Time)
`
`Software Enginegrfir. Software Engineer (2) - The Software Engineer will develop and setup the
`
`mobile app and Sewer component (Full time).
`
`Lead Software EngineerZArchitect (1) - Technical lead of the project for preparing technical design
`
`and architecture of the applications, ensuring code reviews and best practices are followed. (Part
`Time)
`
`QA Engineer (1) - The Folio3 0A Engineer will perform black box testing on the application and will
`also be responsible for test cases development. (Full Time)
`
`6. Approach
`
`Based on the specifications provided by Sopris Systems, functionality will be finalized and
`described in a document, estimates will be revisited and updated (if needed) accordingly.
`Once things are finalized, estimates updated (if needed) and signed off by Sopris Systems,
`Folio3 will start the development activities. If any changes come afterwards, they will be
`treated as change requests. Folio3 can provide updates on progress to Sopris Systems on
`project activities.
`Folio3 suggests a phase wise roadmap for the DynAX product. it will be a long roadmap, but
`with every phase we'll get closer to what we can call a complete Dynamics AX mobile app.
`Here is the vision of a few initial phases.
`
`6.! Phase I:
`Phase 1 will focus on getting a showcase product out for the upcoming conference on 10'"
`April 2014. We’re very short of time, so we need to carefully pick what and what not to do.
`We propose,
`1. To focus only on Nexus 7 as a device for upcoming conference.
`
`2. Creating a simplistic architecture to avoid complexities at this point.
`
`3. Having a controlled demo so we can skip effort on save/retrieval of 2 data forms out of 3.
`
`The effort estimates provided below are focused to Phase 1.
`
`
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`M E
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`XHIBIT A
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`6.2 Phase 2:
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`Phase 2 is where we’ll continue on completing our sc0pe for the Geo Spec app, expand the
`device coverage to other platforms like iOS and Win8. I. We may add a few more forms if
`needed. After this phase the app with current scope will work on all three phones and tablets.
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`63 Phase 3:
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`This phase will focus on enhancing the Architecture of the app to make it easier and quicker
`to add custom forms. We'll also work on our Sewer side laycr (Application Server) to
`introduce functionality of to create and manage access policies at the company, role and user
`level.
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`7. Level of Effort
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`This section explains the level of effort required for developing Phase I which includes the
`Nexus 7 application along with server side middleware component.
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`'I‘nsk Summary
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`
`Development Estimates-$19
`ANS
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`Development Estimates-
`Server
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`Effort Estimate . erson hours
`lit'forl
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`(hours)
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`Comments
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`75
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`1 24
`
`
` uali Assurance Estimates ”—
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`
`
`
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`Grahic Desi Estimates —_
` Project Management
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`Estimates
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`
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`
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`Total Estimates
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`
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`l 30
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`Please note that the above mentioned estimates are representing the summary of effort. These
`estimates are based on the details that we have at the moment. On further discussions and
`
`clarifications, the scope of the application might change and that will make an impact on the
`effort estimates as well.
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`8. Costs
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`For this project, Folio3 is pleased to offer a low rate of US$ 20/hour. Based on this rate and
`the hours estimated above, the estimated cost for the entire project is US$ 17,240.
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`9. Billing
`Folio3 will invoice 30% of the estimated cost US$ 5,172 as the Initiation Fee for Phase 1.
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