MASTER SERVICES AGREEMENT
This agreement ("Agreement") is made as of June 1, 1999 ("Effective Date"),
between Linuxcare, Inc., a Delaware corporation with an office at 650 Townsend
Street, San Francisco, CA 94103, USA (Phone: 415-354-4878; Fax: 415.701.7457)
("Linuxcare") and the "Customer" listed below.
Customer: NEC Software Ltd. Contact: Atsuo Suzuki
Address: 1-18-6 Shinkiba Koutou-Ku Phone: +81-3-5569-3251
Tokyo 136-8608, Japan Fax: +81-3-5569-3308
E-Mail: suzuki@d2.bsd.nes.nec.co.jp
SERVICES INFORMATION
Service Level: Gold SLA as defined in Exhibit B
Service Fee Period: October 1, 1999 - September 30, 2000
Service Incident Cap: 40
Service Fee: *
SERVICES PROVIDED
Subject to payment of all applicable fees, Linuxcare will use reasonable
commercial efforts to perform the support services specified in the Statement of
Work ("SOW") attached hereto as Exhibit B ("Services") and incorporated herein,
in accordance with the Terms and Conditions attached hereto as Exhibit A, and
incorporated herein (collectively the "Exhibits"). Linuxcare may change the SOW,
the Service Fee, and the services that will be performed for a particular
Service Level, at any time; such changes will take effect at the beginning of
the next Service Fee Period. Customer understands that Linuxcare's performance
is dependent in part on Customer's actions. Accordingly, any dates or time
periods relevant to performance of Services by Linuxcare shall appropriately and
equitably extended to account for any delays resulting from changes to Customer
products or otherwise due to Customer. Customer may request additional hours or
levels of Services ("Extended Services"), which Linuxcare may provide at
Linuxcare's sole discretion, provided that Customer pays Linuxcare's then
current fees for such Extended Services.
The Exhibits contain, among other things, warranty disclaimers and
------------------------------------------------------------------
liability limitations. Any different or additional terms of any related purchase
---------------------
order, confirmation, or similar form even if signed by the parties after the
date hereof shall have no force or effect. References in this Agreement or the
Exhibits to a capitalized term appearing on this cover page shall have the
meaning or value of such term on this cover page.
NEC Software: Linuxcare:
By: /s/ YOSHINARI FURUMICHI By: /s/ Justin T. Powell
Name: YOSHINARI FURUMICHI Name: Justin T. Powell
------------------- ----------------
Title: GENERAL MANAGER Title: Director of Asia Pacific Operations
--------------- -----------------------------------
[*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
EXHIBIT A
TERMS AND CONDITIONS
1. Training. Subject to payment of all fees, Linuxcare will provide the
--------
training specified in Linuxcare's current, published "Linuxcare Training
Programs" documentation. Unless otherwise arranged between Customer and
Linuxcare, all training shall occur at Linuxcare's facilities in San
Francisco, California. The fees for training will be Linuxcare's current,
published training fees, less the Training Discount ("Training Fees").
2. Fees and Payment. Customer shall pay Linuxcare the fees for the selected
----------------
Service Level shown in the Services Information section of this Master
Services Agreement for each Service Fee Period. ("Service Fees"). Customer
will pay the Service Fees for the initial Service Fee Period within 30 days
of the Effective Date. Customer will pay the Service Fees for subsequent
Service Fee Periods within 30 days after receipt of Linuxcare's invoice.
Customer will also pay Linuxcare all Training Fees and Extended Services
fees within 30 days after receipt of Linuxcare's invoice therefor. All
payments are non-refundable. Any payments over 15 days overdue will bear a
late payment fee of the lower of 1.5% per month of the outstanding balance
or the maximum rate allowed by law. Linuxcare shall refund to Customer any
amounts actually paid to Linuxcare by Customer which exceed amounts due
hereunder, minus any costs, fees, taxes, duties or other implications, if
any, arising in connection with such overpayment.
3. Proprietary Rights. As between the parties, Linuxcare will retain all
------------------
right, title and interest in and to any software, tools, techniques, and
other materials used in connection with providing the Services ("Linuxcare
Materials"). As between the parties, Customer will retain all right, title
and interest in and to any software, products, documentation and other
materials it supplies. Linuxcare hereby assigns to Customer all right,
title and interest, in any work product created as part of the Services
("Work Product"), but this assignment does not include any portion of the
Linuxcare Materials, and will not prevent Linuxcare from using the
expertise, ideas and know-how learned while performing Services for other
purposes (including, without limitation, for itself or on behalf of third
parties).
4. Confidential Information. Each party ("receiving party") agrees that all
------------------------
code, inventions, algorithms, know-how and ideas and all other business,
technical and financial information it obtains from the other party
("disclosing party"), but not including work product that is assigned to
Customer by Linuxcare pursuant to Section 3, are the confidential property
of the disclosing party ("Confidential Information" of the disclosing
party). Except with the consent of the disclosing party, the receiving
party shall hold in confidence and not use or disclose any Confidential
Information of the disclosing party for at least five (5) years after this
Agreement expires or otherwise terminates. The receiving party's
nondisclosure obligation shall not apply to information it can document:
(i) is generally available to the public other than through breach of this
Agreement; (ii) is rightfully disclosed to the receiving party by a third
party; (iii) is independently developed by the receiving party without use
of any Confidential Information of the disclosing party, or (iv) is
disclosed to pursuant to law or an order requirement, guidance, or request
of a court or government authority. Because of the unique and proprietary
nature of the Confidential Information, it is understood and agreed that
the disclosing party's remedies at law for a breach by the receiving party
of its obligations under this Section will be inadequate and that the
disclosing party shall be entitled to equitable relief (including without
limitation provisional and permanent injunctive relief and specific
performance). Nothing stated herein shall limit any other remedies provided
under this Agreement or available to the disclosing party at law. Upon
expiration or termination of this Agreement for any reason, each party will
return all copies of all Confidential Information of the other party in its
possession or control.
5. Termination. This Agreement will have an initial term of the earlier of one
-----------
year from the Effective Date or the date that Customer uses up its
Incidences under its Service Level (initial "Service Fee Period") and shall
automatically renew on each anniversary of the initial Service Fee Period
for subsequent Service Fee Periods (subject to payment of Linuxcare's then
current rates for additional Incidences)
unless terminated by either party. For the purposes of this Agreement,
"Incident" shall mean a single identified customer issue or problem. Each
Page 1 of 3
Incident is only valid during the Service Fee Period it was purchased in.
One call or e-mail may include multiple Incidents, and a single Incident
may require more than one call or e-mail to resolve. Either party may
terminate this Agreement upon thirty (30) days written notice to the other
party, except if Linuxcare is terminating the Agreement such termination
will not be effective until the end of any fully paid-up Service Fee
Period. Linuxcare may terminate this Agreement at any time in the case of
non-payment by Customer of any fees, unless Customer pays such fees in full
within ten (10) days after such notice. Sections 4, 5, 7, 8, and 9 of this
Agreement, and all accrued rights to payment, shall survive termination.
Termination is not an exclusive remedy and all other remedies will be
available whether or not termination occurs.
6. Warranty and Disclaimer. Linuxcare hereby warrants to Customer, and only
-----------------------
Customer, that all Services shall be performed in a professional and
workmanlike manner. THE PARTIES ACKNOWLEDGE THAT THIS IS AN AGREEMENT FOR
SERVICES AND NOT FOR THE SUPPLY OF GOODS. EXCEPT FOR THE FOREGOING,
LINUXCARE MAKES NO OTHER WARRANTIES OR REPRESENTATIONS AS TO THE SERVICES
RENDERED, AND HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES,
INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. LINUXCARE FURTHER
DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL SUCCEED IN RESOLVING ANY
PROBLEM, OR THAT ANY WORK PRODUCT OF THE SERVICES WILL BE FREE FROM PROGRAM
ERRORS.
7. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR
-----------------------
OTHERWISE, AND EXCEPT FOR BODILY INJURY, LINUXCARE SHALL NOT BE LIABLE OR
OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY:
(I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO IT
HEREUNDER WITH RESPECT TO THE APPLICABLE SERVICES; (II) FOR ANY COST OF
PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; OR (III)
FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA.
8. NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE OR OBLIGATED WITH RESPECT
TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE,
STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (I) FOR ANY MATTER
BEYOND ITS REASONABLE CONTROL, OR (II) FOR ANY INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES OR LOST PROFITS.
9. Legal Compliance. Customer shall comply with the U.S. Foreign Corrupt
----------------
Practices Act and all applicable export laws, restrictions, and regulations
of the U.S. and foreign agency or authority. Each party agrees that it
shall comply with applicable law in performance of its obligations under
this Agreement.
10. Miscellaneous. This Agreement is not assignable or transferable by Customer
-------------
without the prior written consent of Linuxcare; any attempt to do so
shall be void. Linuxcare may assign this Agreement in whole or in part, or
subcontract the performance of Services to third parties. Services may be
used solely by Customer for Customer's internal use for Customer's own
benefit. The parties agree that they are independent contractors and that
this Agreement and relations between Linuxcare and Customer hereby
established do not constitute a, joint venture, agency or contract of
employment between them, or any other similar relationship. Neither party
has the right or authority to assume or create any obligation or
responsibility on behalf of the other. Any notice, report, approval or
consent required or permitted hereunder shall be in writing. No failure or
delay in exercising any right hereunder will operate as a waiver thereof,
nor will any partial exercise of any right or power hereunder preclude
further exercise. If any provision of this Agreement shall be adjudged by
any court of competent jurisdiction to be unenforceable or invalid, that
provision shall be limited or eliminated to the minimum extent necessary so
that this Agreement shall otherwise remain in full force and effect and
enforceable. Any waivers or amendments shall be effective only if made in
writing. This Agreement is the complete and exclusive statement of the
mutual understanding of the parties and supersedes and cancels all previous
written and oral agreements and communications relating to the subject
matter of this Agreement. The prevailing party in any action to enforce
this Agreement will be entitled to recover its attorney's fees and costs in
connection with such action.
Page 2 of 3
11. Governing Law and Jurisdiction. This Agreement which is in English, shall
------------------------------
be interpreted in accordance with the commonly understood meaning of
the words and phrases hereof in the United States of America. Any dispute,
controversy or claim arising out of or relating to this Agreement or to a
breach thereof, including its interpretation, performance or termination,
shall be finally resolved by arbitration. The arbitration shall be
conducted in English and in accordance with the commercial rules of the
International Chamber of Commerce which shall administer the arbitration
and act as appointing authority. The arbitration, including the rendering
of the award, shall take place in San Francisco, California which shall be
the exclusive forum for resolving such dispute, controversy or claim. For
the purposes of this arbitration, the provisions of this Agreement and all
rights and obligations thereunder shall be governed and construed in
accordance with the laws of the State of California. United States of
----------
America, without regard to the conflicts of laws provisions thereof. The
decision of the arbitrators shall be binding upon the parties hereto, and
the expense of the arbitration (including without limitation the award of
attorneys' fees to the prevailing party) shall be paid as the arbitrators
determine. The decision of the arbitrators shall be executory, and judgment
thereon may be entered by any court of competent jurisdiction.
Notwithstanding anything contained in this Paragraph, each party shall have
the right to institute judicial proceedings against the other party or
anyone acting by, through or under such other party in any federal or state
court located within the County of San Francisco, CA, USA in order to
enforce the instituting party's rights hereunder through reformation or to
obtain injunctive relief ("Court Actions"). Accordingly, each party agrees
to the exclusive and personal jurisdiction of the state and federal courts
located within the County of San Francisco, CA, USA for such Court Actions.
NEC Software: Linuxcare:
By: /s/ YOSHINARI FURUMICHI By: /s/ Justin T. Powell
Name: YOSHINARI FURUMICHI Name: Justin T. Powell
Title: GENERAL MANAGER Title: Director of Asia Pacific Operations
Page 3 of 3
EXHIBIT B
STATEMENT OF WORK
CONTROL
Document ID NES_SOW
Location /Documents/Linuxcare/NEC/NES/NES_SOW.doc
Originator Jay Powell
Issue Date 9/21/1999
Status Approved
Version 1.0
DISTRIBUTION
Linuxcare Jay Powell, Jim Fisher
NES Atsuo Suzuki
VERSION MODIFIED BY DATE DESCRIPTION
0.1 Jay Powell 08/23/99 Draft Proposal
0.2 Jay Powell 09/10/99 Revised incident cap to by
Suzuki-san of NES. as
advised by Lawyers. lower
price as proposed Minor
formatting changes
1.0 Jay Powell 9/21/99 Revised incident cap to
proposed by Suzuki-san of
lower price further as NEC.
Page 1 of 7
TABLE OF CONTENTS
-----------------
1 INTRODUCTION 3
2 RELATIONSHIP OBJECTIVES 4
2.1 SHORT-TERM OBJECTIVES 4
2.2 LONG TERM OBJECTIVES 4
3 SERVICE PROPOSAL-SHORT-TERM (REF 2.1) 5
3.1 SLA SERVICES 5
3.1.1 Hours of Operation: 5
3.1.2 Distribution: 5
3.1.3 Platforms: 5
3.1.4 Phone, Web, e-mail support: 5
3.1.5 Resolution or report: 5
3.1.6 First point of contact: 6
3.1.7 Authorized customer contacts: 6
3.1.8 Telnet access to customer's system: 6
3.1.9 View Active Incident Status online: 6
3.1.10 Software updates: 6
3.1.11 Access to Script library: 6
3.1.12 Access to online configuration DB: 6
3.2 PROBLEM REPORTING PROCEDURES 6
3.3 SERVICE RESTRICTIONS 7
3.4 SOW SERVICE PERIOD AND RENEWAL 7
Page 2 of 7
1 INTRODUCTION
This NEC Software Statement of Work No. 99-1 ("SOW") effective October 1, 1999
is agreed upon by sets forth the Agreement between Linuxcare Inc. ("Linuxcare")
and NEC Software, Ltd. ("NES") regarding the services to be provided by services
provided by Linuxcare pursuant to the Master Services Agreement between
Linuxcare and NES dated October 1, 1999.
This document is intended solely for NES and Linuxcare and is not be circulated
outside of these organizations without written consent from Linuxcare Inc.
Page 3 of 7
2 RELATIONSHIP OBJECTIVES
2.1 SHORT-TERM OBJECTIVES
NES and Linuxcare shall undertake a 12-month trial composed of standard Gold
Service Level Agreement ("SLA") back-line support for NES's Linux system
integration business. The Gold SLA as specified herein will ensure that the NES
engineers are provided the support services that they require to provide the
quality of their Linux based support solutions to their business partners.
During this trial period Linuxcare and NES will evaluate their ability to work
together in the Japanese market to encourage the growth of Linux based solutions
deployed in corporate Japan.
2.2 LONG TERM OBJECTIVES
Assuming successful conclusions of the above objectives (Ref. 2.1) Linuxcare and
NES will evaluate NES entering into a "Linuxcare Certified Partner" program that
includes NES providing Linux Services across multiple lines of business
currently offered by Linuxcare.
Clarification of these objectives shall occur following evaluation of the first
year support agreement and the short-term objectives defined above (Ref. 2.1).
Should NES and Linuxcare decide to enter into a future agreement this shall
represent a separate contract from this initial backline support agreement.
Page 4 of 7
3 SERVICE PROPOSAL - SHORT-TERM (REF 2.1)
Linuxcare will use reasonable commercial efforts to provide Gold SLA services,
which for purposes of this SOW has been deemed "Gold" Service Level Agreement
("SLA") as further defined in Section 3.1. These services are to be used by NES
to support NES's "Customer Base" from their Tokyo Linux support center.
"Customer Base" shall mean those third party customers, which NES has a
contractual obligation to provide Linux operating support services as of the
effective date of this SOW. Additional third party customers may be added to the
"Customer Base" with the prior written permission of Linuxcare.
3.1 SLA SERVICES
The Gold SLA is based on the following Linuxcare standard Gold SLA service
options set forth below:
3.1.1 HOURS OF OPERATION:
9am - 6pm (JST) weekdays excluding Japanese national holidays.
3.1.2 DISTRIBUTION:
Distribution support includes all major Distributions. Major Distributions are
defined as Caldera, Debian GNU/Linux, Laser5 Linux, Linux-Mandrake, LinuxPPC,
Red Hot, Slackware Linux, Stampede, SuSE, TurboLinux, UltraLinux, and Yellow
Dog.
3.1.3 PLATFORMS:
Platforms that will be supported are the Alpha, Intel, MIPS, and SPARC
platforms, and such other platforms as Linuxcare may make generally available to
its other Gold SLA service customers.
3.1.4 PHONE, WEB, E-MAIL SUPPORT:
Telephone, World Wide Web, and e-mail support services will be available during
the hours set forth above. Telephone support will be provided in the Japanese
language support subject to Linuxcare's ability (using commercially reasonable
efforts) to staff its Japanese office with trained personnel. NES and Linuxcare
will cooperate, with each providing assistance and each at their own respective
cost, to provide Japanese telephone support until such time as Linuxcare is able
to appropriately staff its Japanese office with trained personnel. Linuxcare's
shall have the right to use existing Japanese speaking staff based in its San
Francisco office to fulfill its obligations under this Section 3.1.4.
3.1.5 RESOLUTION OR REPORT:
Resolution or report will be issued one (i) business day (as defined by the
Hours of Operation) following report of an incident to Linuxcare.
Page 5 of 7
3.1.6 FIRST POINT OF CONTACT:
The first point of contact for NES will be a Linuxcare level 2 engineer (as
defined by Linuxcare).
3.1.7 AUTHORIZED CUSTOMER CONTACTS:
NES shall designate two (2) Authorized customer contacts and provide their names
and contact information to Linuxcare. Linuxcare shall have no obligation to
provide support to NES personnel other than the NES Authorized customer
contacts.
3.1.8 TELNET ACCESS TO CUSTOMER'S SYSTEM:
Telnet access into the NES's support center servers provided to Linuxcare
engineers at the discretion of NES, but at no additional cost to Linuxcare.
3.1.9 VIEW ACTIVE INCIDENT STATUS ONLINE:
Linuxcare shall make summary online incident reports available to NES for each
incident reported to Linuxcare by NES.
3.1.10 SOFTWARE UPDATES:
Selected Linux software updates will be made available to NES through the
Linuxcare web site (http://www.linuxcare.com). NES rights with respect to such
------------------------
Software updated will be
subject to the applicable of source licenses.
3.1.11 ACCESS TO SCRIPT LIBRARY:
Access to the Linuxcare Script Library will be made available to NES (and not
NES customers) through the Linuxcare web site (http://www.linuxcare.com). These
------------------------
scripts are not to be released to NES customers without prior written consent
from Linuxcare for each instance.
3.1.12 ACCESS TO ONLINE CONFIGURATION DB:
Access to the Linuxcare online configuration database will be made available to
NES through the Linuxcare web pages (http://www.linuxcare.com). This access is
------------------------
solely granted to NES and is not to be released to NES customers.
3.2 PROBLEM REPORTING PROCEDURES
When NES contacts Linuxcare with an incident report, NES shall provide the
following information:
1. Name of NES engineer placing the call. This individual must be one of
the Authorized customer contacts.
Page 6 of 7
2. Name of individual and individual's company that logged the initial
incident report with NES.
3. Description of the incident.
4. Description of the steps taken by NES to resolve the problem locally.
Linuxcare will track this information; NES shall not intentionally (or through
gross negligence) mislead Linuxcare regarding any of the above points.
3.3 SERVICE RESTRICTIONS
The services provided by Linuxcare are to be used at NES's support center and
are intended to allow for NES to support Customer Base. NES may not use
Linuxcare services provided hereunder for the purpose of providing corporate
Linux support. Accordingly, NES shall not:
* Sell Linuxcare support packages to Japanese corporate customers
without prior written consent from Linuxcare for each sale.
* Make any additional or conflicting representations or warranties on
behalf of Linuxcare.
* Use the trademark Linuxcare name, logo, or catch phrase "At the Center
of Linux" without prior written consent from Linuxcare in each case.
3.4 SOW SERVICE PERIOD AND RENEWAL
The initial term of this SOW shall continue for the period of 12 months of
service or 40 reported incidents, whichever comes first (the "Term"), unless
earlier terminated under this Master Service Agreement. This SOW shall renew for
additional Terms in accordance with the terms of the Master Service Agreement.
Two (2) months prior to expiration of an existing Term or at 30 reported
incidents (whichever comes first), NES and Linuxcare shall meet to: (1) evaluate
the quality of the service provided, and (2) evaluate whether it is appropriate
to adjust the duration of a future Term (including the number of incidents
reported therein), and (3) in the case of agreement with respect to an
adjustment of the duration of the Term, mutually agree in writing as to the
duration of such future Term.
NEC Software: Linuxcare:
By: Yoshinari Furumichi By: /s/ Justin T. Powell
Name: YOSHINARI FURUMICHI Name: Justin T. Powell
Title: GENERAL MANAGER Title: Director of Asia Pacific Operations
Page 7 of 7
EX-10.2.9
14
MASTER SERVICES AGREEMENT WITH SUN MICROSYSTEMS
EXHIBIT 10.2.9
Agreement Number: _________________
MASTER SERVICES AGREEMENT
This agreement ("Agreement") is made as of OCTOBER 20, 1999
("Effective Date"), between Linuxcare, Inc., a Delaware corporation with an
office at 650 Townsend Street, San Francisco, CA 94103, USA (Phone: 415-354-
4878; Fax: 415.701.7457; E-mail: _sdavidson@linuxcare.com) ("Linuxcare") and the
"Customer" listed below.
Customer: Sun Microsystems, Inc. Contact: STEVE GRUELLE
Address: 901 San Antonio Rd. Phone: 650-336-6321
Palo Alto, CA 94303 Fax: 650-336-1549
E-Mail: Steve.gruelle@eng.sun.com
SERVICES INFORMATION
Service Fee Period: Oct 10, 1999 to Apr 10, 2000
Service Fee: [*] hour
SERVICES PROVIDED
Subject to payment of all applicable fees, Linuxcare will use
reasonable commercial efforts to perform the support services specified in
Linuxcare's current, published "Linuxcare Technical Support Programs"
documentation appropriate to the Service Level selected by Customer and the
Statement of Work ("SOW") attached hereto as Exhibit A ("Services"), in
accordance with the Terms and Conditions exhibit attached to this Agreement, and
incorporated herein. In the event of any conflict between the "Linuxcare
Technical Support Programs" documentation and the SOW, the SOW shall govern.
Linuxcare may change the "Linuxcare Technical Support Programs" documentation,
SOW, the Service Fee, and the services that will be performed for a particular
Service Level, at any time; such changes will take effect at the beginning of
the next Service Fee Period. Customer understands that Linuxcare's performance
is dependent in part on Customer's actions. Accordingly, any dates or time
periods relevant to performance of Services by Linuxcare shall appropriately and
equitably extended to account for any delays resulting from changes to Customer
products or otherwise due to Customer. Customer may request additional hours or
levels of Services ("Extended Services"), which Linuxcare may provide at
Linuxcare's sole discretion, provided that Customer pays Linuxcare's then
current fees for such Extended Services.
This Agreement includes the attached exhibits, statements of work, and
----------------------------------------------------------------------
contains, among other things, warranty disclaimers and liability limitations.
----------------------------------------------------------------------------
Any different or additional terms of any related purchase order, confirmation,
or similar form even if signed by the parties after the date hereof shall have
no force or effect. References in this Agreement or the exhibits to a
capitalized term appearing on this cover page shall have the meaning or value of
such term on this cover page.
Customer: Linuxcare:
By: /s/ Jon S. Williams By: /s/ Thomas W. Phillips
------------------- ----------------------
Name: Jon S. Williams Name: Thomas W. Phillips
--------------- ------------------
Title: Dir Marketing Title: V.P. World Wide Sales
------------- ---------------------
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
TERMS AND CONDITIONS EXHIBIT
1. Training. Subject to payment of all fees, Linuxcare will
--------
provide the training specified in Linuxcare's current, published "Linuxcare
Training Programs" documentation. Unless otherwise arranged between Customer and
Linuxcare, all training shall occur at Linuxcare's facilities in San Francisco,
California. The fees for training will be Linuxcare's current, published
training fees, less the Training Discount ("Training Fees").
2. Fees and Payment. Customer shall pay Linuxcare the fees for
----------------
the selected Service Level shown in the Services Information section of this
Master Services Agreement for each Service Fee Period. ("Service Fees").
Customer will pay the Service Fees for the initial Service Fee Period within 30
days of the Effective Date. Customer will pay the Service Fees for subsequent
Service Fee Periods within 30 days after receipt of Linuxcare's invoice.
Customer will also pay Linuxcare all Training Fees and Extended Services fees
within 30 days after receipt of Linuxcare's invoice therefor. All payments are
non-refundable. Any payments over 15 days overdue will bear a late payment fee
of the lower of 1.5% per month of the outstanding balance or the maximum rate
allowed by law. Linuxcare shall refund to Customer any amounts actually paid to
Linuxcare by Customer which exceed amounts due hereunder, minus any costs, fees,
taxes, duties or other implications, if any, arising in connection with such
overpayment.
3. Proprietary Rights. As between the parties, Linuxcare will
------------------
retain all right, title and interest in and to any software, tools, techniques,
and other materials used in connection with providing the Services ("Linuxcare
Materials"). As between the parties, Customer will retain all right, title and
interest in and to any software, products, documentation and other materials it
supplies. Linuxcare hereby assigns to Customer all right, title and interest, in
any work product created as part of the Services ("Work Product"), but this
assignment does not include any portion of the Linuxcare Materials, and will not
prevent Linuxcare from using the expertise, ideas and know-how learned while
performing Services for other purposes (including, without limitation, for
itself or on behalf of third parties).
4. Confidential Information. Each party ("receiving party")
------------------------
agrees that all code, inventions, algorithms, know-how and ideas and all other
business, technical and financial information it obtains from the other party
("disclosing party"), but not including work product that is assigned to
Customer by Linuxcare pursuant to Section 3, are the confidential property of
the disclosing party ("Confidential Information" of the disclosing party).
Except with the consent of the disclosing party, the receiving party shall hold
in confidence and not use or disclose any Confidential Information of the
disclosing party for at least seven (7) years after this Agreement expires or
otherwise terminates. The receiving party's nondisclosure obligation shall not
apply to information it can document: (i) is generally available to the public
other than through breach of this Agreement; (ii) is rightfully disclosed to the
receiving party by a third party; or (iii) is independently developed by the
receiving party without use of any Confidential Information of the disclosing
party. Because of the unique and proprietary nature of the Confidential
Information, it is understood and agreed that the disclosing party's remedies at
law for a breach by the receiving party of its obligations under this Section
will be inadequate and that the disclosing party shall be entitled to equitable
relief (including without limitation provisional and permanent injunctive relief
and specific performance). Nothing stated herein shall limit any other remedies
provided under this Agreement or available to the disclosing party at law. Upon
expiration or termination of this Agreement for any reason, each party will
return all copies of all Confidential Information of the other party in its
possession or control.
5. Termination. This Agreement will have an initial term of the
-----------
earlier of one year from the Effective Date or the date that Customer uses up
its Incidences under its Service Level (initial "Service Fee Period") and shall
automatically renew on each anniversary of the initial Service Fee Period for
subsequent Service Fee Periods (subject to payment of Linuxcare's then current
rates for additional Incidences) unless terminated by either party. For the
purposes of this Agreement, "Incident" shall mean a single identified customer
issue or problem. Each Incident is only valid during the Service Fee Period it
was purchased in. One call or e-mail may include multiple Incidents, and a
single Incident may require more than one call or e-mail to resolve. Either
party may terminate this Agreement upon thirty (30) days written notice to the
other party, except if Linuxcare is terminating the Agreement such termination
will not be effective until the end of any fully paid-up Service Fee Period.
Linuxcare may terminate this Agreement at any
time in the case of non-payment by Customer of any fees, unless Customer pays
such fees in full within ten (10) days after such notice. Sections 4, 5, 7, 8,
and 9 of this Agreement, and all accrued rights to payment, shall survive
termination. Termination is not an exclusive remedy and all other remedies will
be available whether or not termination occurs.
6. Warranty and Disclaimer. Linuxcare hereby warrants to
-----------------------
Customer. and only Customer, that all Services shall be performed in a
professional and workmanlike manner. THE PARTIES ACKNOWLEDGE THAT THIS IS AN
AGREEMENT FOR SERVICES AND NOT FOR THE SUPPLY OF GOODS. EXCEPT FOR THE
FOREGOING, LINUXCARE MAKES NO OTHER WARRANTIES OR REPRESENTATIONS AS TO THE
SERVICES RENDERED, AND HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES,
INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A
PARTICULAR PURPOSE, AND NONINFRINGEMENT. LINUXCARE FURTHER DISCLAIMS ANY
WARRANTY THAT THE SERVICES WILL SUCCEED IN RESOLVING ANY PROBLEM, OR THAT ANY
WORK PRODUCT OF THE SERVICES WILL BE FREE FROM PROGRAM ERRORS.
7. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN
-----------------------
THIS AGREEMENT OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, LINUXCARE SHALL NOT
BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR
UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE
THEORY: (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO IT
HEREUNDER WITH RESPECT TO THE APPLICABLE SERVICES; (II) FOR ANY COST OF
PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; OR (III) FOR
INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA.
NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE OR OBLIGATED WITH RESPECT
TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE,
STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (I) FOR ANY MATTER BEYOND
ITS REASONABLE CONTROL, OR (II) FOR ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES OR LOST PROFITS.
8. Export Control, Customer shall comply with the U.S. Foreign
--------------
Corrupt Practices Act and all applicable export laws, restrictions, and
regulations of the U.S. and foreign agency or authority.
9. Miscellaneous. This Agreement is not assignable or
-------------
transferable by Customer without the prior written consent of Linuxcare; any
attempt to do so shall be void. Linuxcare may assign this Agreement in whole or
in part, or subcontract the performance of Services to third parties. Services
may be used solely by Customer for Customer's internal use for Customer's own
benefit. The parties agree that they are independent contractors and that this
Agreement and relations between Linuxcare and Customer hereby established do not
constitute a, joint venture, agency or contract of employment between them, or
any other similar relationship. Neither party has the right or authority to
assume or create any obligation or responsibility on behalf of the other. Any
notice, report, approval or consent required or permitted hereunder shall be in
writing. No failure or delay in exercising any right hereunder will operate as a
waiver thereof, nor will any partial exercise of any right or power hereunder
preclude further exercise. If any provision of this Agreement shall be adjudged
by any court of competent jurisdiction to be unenforceable or invalid, that
provision shall be limited or eliminated to the minimum extent necessary so that
this Agreement shall otherwise remain in full force and effect and enforceable.
Any waivers or amendments shall be effective only if made in writing. This
Agreement is the complete and exclusive statement of the mutual understanding of
the parties and supersedes and cancels all previous written and oral agreements
and communications relating to the subject matter of this Agreement. The
prevailing party in any action to enforce this Agreement will be entitled to
recover its attorney's fees and costs in connection with such action.
10. Governing Law and Jurisdiction. This Agreement, which is in
------------------------------
English, shall be interpreted in accordance with the commonly understood meaning
of the words and phrases hereof in the United States of America. Any dispute,
controversy or claim arising out of or relating to this Agreement or to a breach
thereof, including its interpretation, performance or termination, shall be
finally resolved by arbitration. The arbitration shall be conducted in English
and in accordance with the commercial rules of the International Chamber of
Commerce, which shall administer the arbitration and act as appointing
authority. The arbitration, including the rendering of the award, shall take
place in San Francisco, California, which shall be the exclusive forum for
resolving such dispute, controversy or claim. For the purposes of this
arbitration, the provisions of this Agreement and all rights and obligations
thereunder shall be governed and construed in accordance with the laws of the
State of California. United States of America, without regard to the conflicts
----------
of laws provisions thereof. The decision of the arbitrators shall be binding
upon the parties hereto, and the expense of the arbitration (including without
limitation the award of attorneys' fees to the prevailing party) shall be paid
as the arbitrators determine. The decision of the arbitrators shall be
executory, and judgment thereon may be entered by any court of competent
jurisdiction. Notwithstanding anything contained in this Paragraph, each party
shall have the right to institute judicial proceedings against the other party
or anyone acting by, through or under such other party in order to enforce the
instituting party's rights hereunder through reformation of contract, specific
performance, injunction or similar equitable relief.
STATEMENT OF WORK FOR NETBEANS IDE SUPPORT SERVICES
This Statement of Work for NetBeans IDE Support Services is the NetBeans IDE
Support Services Agreement ("Agreement") between Sun Microsystems Inc ("Sun"),
and LinuxCare, Inc. ("PROVIDER").
1. SERVICES TO BE PROVIDED BY PROVIDER.
------------------------------------
1.1 DEFINITIONS.
1.1.1 "Business Hours" means 8:00 a.m. To 8:00 p.m. Eastern Standard
Time, Monday through Friday, excluding Sun holidays.
1.1.2 "Call Back" means calls which, at the Support Customer's
request are handled by means of an e-mail to the contact of
record (as shown on the service order), by a PROVIDER support
engineer.
1.1.3 "Support Customer" or "End User" means a customer who directly
or indirectly received distribution of NetBeans IDE products
from Sun or from NetBeans.
1.1.4 "Support Services" means remote, centralized, software support
services of NetBeans IDE software products to be provided by
PROVIDER. This definition excludes on-site support services of
any kind.
1.1.5 "Call" or "Calls" means Support Customer's request for service
transmitted via e-mail,
1.1.6 "IAPT" means the Internet Applications and Performance Tools
group within the Software Products & Platforms division of Sun.
1.1.7 "CTE" means the Escalation Support group within IAPT.
1.1.8 "Service Order" means the documentation of a Support Services
Call.
1.1.9 "FAQ" or "FAQ's" means the frequently asked questions list.
1.2 SUPPORT SERVICES.
1.2.1. Services, PROVIDER will provide Support Services for Support
Customers during Business Hours only, Such Support Services
shall be limited to the NetBeans IDE software products and
their compatibility with any of the Linux platforms
(Hardware/operating system) with which they interoperate.
Support Services shall be provided in accordance with the
procedures outlined in Section 1.4 of this Exhibit A.
1.2.2. Assignment of Engineers. PROVIDER will assign engineers to
provide Support Services under this Exhibit who, at the time
of the assignment, are trained in providing support to
NetBeans IDE products.
1.3 NETWORK COSTS. PROVIDER will be responsible for all network costs
related to the provision of E-mail Support Services it provides from
the inbound arrival of E-mail at the PROVIDER's site to the
distribution of E-mail outbound from the PROVIDER's site.
1.4 TELECOM COSTS. PROVIDER will be responsible for all outbound
telecommunications costs related to the provision of Support Services
it provides.
1.5 PROCEDURES FOR SUPPORT SERVICES CALLS.
1.5.1. Receipt of Support Customer E-mails. CTE will forward to
PROVIDER Support Customer E-mail as fully described in Section
1.2.1. IAPT will establish a mechanism
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for the routing of Support customer E-mail to PROVIDER's
designated E-mail server(s). PROVIDER will identify E-mail
addresses required to allow proper Support Customer E-mail
routing and identification. PROVIDER employees shall always
identify themselves as "Sun Customer Care Center" employees
when replying or responding to Support Customer's E-mail. At no
time shall PROVIDER nor any of its employees or representatives
expose PROVIDER's identity to Support Customers.
1.5.2. Response. PROVIDER will respond to Calls by reviewing the
request and providing an initial response via e-mail to Support
Customers within 24 hours of receipt of Call. If the Customer
Support E-mail is sent to "netbeans-customer-
-------------------
support@linuxcare.com" E-mail alias, PROVIDER will provide for
---------------------
a 3 (three) day enclosure of the issue. Otherwise, PROVIDER
will provide for a 10 (ten) day closure of the issue. PROVIDER
will respond to Support Customer in English. Use of the phone
to provide support response is optional and is at PROVIDER's
discretion and expense. E-mail responses to Support Customers
shall indicate a Sun furnished e-mail address/alias, At no time
shall PROVIDER nor any of its employees or representatives
expose PROVIDER's identity to Support Customers.
1.5.3. Data Entry. PROVIDER shall record all relevant data (reference
SOW paragraph 1.5) concerning the Support Customer within
PROVIDER's call management system. PROVIDER shall furnish this
information to IAPT on a weekly basis. Additionally, PROVIDER
shall allow IAPT electronic access to Support customer Service
Orders within PROVIDER's call management system in order to
assist with troubleshooting and to monitor Support Service
activity.
1.5.4. Closure. PROVIDER acknowledges and agrees that Support Customer
determines when a Service Order is completed or "closed".
1.5.5. Escalation. If PROVIDER is unable to close a Service Order
within seventy-two (72) hours or if PROVIDER is requested to
escalate by Support Customer and/or IAPT, PROVIDER will
escalate Service Order immediately during Business Hours to
IAPT by sending all relevant data from Call (reference SOW
paragraph 1.5) via e-mail to the CTE designated escalation
alias.
1.6 DATA COLLECTION AND REPORTING. PROVIDER will collect and report the
following data on a weekly basis. Information shall be furnished
electronically in StarOffice Spreadsheet compatible format. For each
call taken, PROVIDER shall furnish:
a. Support Customer information (Support Customer Name, State,
Country)
b. Call complexity (Type of Problem, Resolution Time)
c. Support Customer platforms (Hardware and Operating System,
version of Java in use)
d. escalated back to CTE (Y/N)
e. summary reporting should include:
1) total number of Calls
2) # of Calls by Support Customer location (State, Country)
3) # of Calls by platform
4) # of Calls escalated back to Sun escalation alias
5) average resolution time
Additionally, PROVIDER will furnish updates to IAPT for the NetBeans
IDE Knowledge Database or NetBeans IDE FAQ's as new information is
discovered.
2. SUN OBLIGATIONS.
----------------
2.1 TRAINING. CTE will provide a trainer at a mutually agreeable time, who
will be available to
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PROVIDER for a minimum of five (5) business days, to train PROVIDER
personnel with respect to Support Services. Training will be held at
PROVIDER's San Francisco Office or at Sun's Mountain View Office.
2.2 TOOLS AND DATABASE ACCESS. Sun will allow PROVIDER access to Sun's
NetBeans IDE Knowledge Database and the NetBeans IDE FAQ's solely for
the purpose of providing Support Services. PROVIDER agrees and
acknowledges that the information contained in the Knowledge Database
and FAQ's are hereby identified, without the need for further
identification, as proprietary and subject to the provisions of
Section 2.3 of this Agreement.
2.3 ACCESS TO RESOURCE TOOLS AND INFORMATION. PROVIDER understands that
Sun may furnish PROVIDER with resource tools and information,
including but not limited to the non-exclusive right to use Sun's
NetBeans IDE Knowledge Database, Sun's NetBeans IDE FAQ's, and other
web-based resources associated with NetBeans IDE products for the
duration of this Agreement (collectively referred to as "Tools"), for
the sole purpose of providing Support Services to Support Customers
under this Agreement. PROVIDER will not use the furnished Tools for
any other purpose. Provider understands that all Tools are supplied
"AS IS" and Sun disclaims all warranties (as set forth below in
Section 4).
2.4 ESCALATION POINT OF CONTACT. CTE will make known to PROVIDER the e-
mail alias to be used when escalating a Call. CTE will provide Call
closure information on all escalated Calls so that PROVIDER reports
may be complete. It is the responsibility of the PROVIDER to request
Call closure information from CTE on Calls that are escalated back to
the escalation alias. If information is not available, PROVIDER shall
indicate so within its report.
3. METHOD AND CONDITIONS OF COMPENSATION
--------------------------------------
3.1 COMPENSATION. Sun will pay PROVIDER [*] per hour worked by PROVIDER
personnel in the Service Order acceptance and resolution of support E-
mail from Support Customers. A minimum of [*] and a maximum of [*]
will be paid for any one Call. After thirty (30) days, rates will be
reviewed to ensure adequacy of pricing. If required, a mutually
acceptable adjustment in pricing shall be made.
3.2 DETERMINATION OF FEES. PROVIDER shall provide a summary timesheet of
all employees' hours worked in support of Support Services. This
timesheet should identify each Service Order worked on, the actual
number of hours worked for each Call, and the billable hours for each
Service Order.
3.3 INVOICING OF FEES. PROVIDER's invoices will be paid in accordance with
the payment terms set forth in Paragraph 3.4 of this Agreement.
Invoices shall contain a summary of charges together with the Sun-
assigned accounting purchase order number clearly identified and a
summary timesheet as identified in SOW paragraph 3.2. Additionally,
PROVIDER's invoices should be submitted monthly by the second Tuesday
of the month following delivery of Support Services.
3.4 REMUNERATION FOR SERVICE. In consideration for Support Services
provided, Sun will provide remuneration to PROVIDER in accordance with
the applicable support fees rates set forth in paragraph 3.1 of this
Agreement. Remuneration will be provided within thirty (30) days after
receipt of PROVIDER's invoice and is considered made by Sun on the
date of mailing as evidenced by postmark. Any out-of-pocket expenses
(e.g., travel) incurred by PROVIDER in connection with providing
Support Services will be the sole responsibility of PROVIDER, unless
otherwise approved in writing by Sun prior to PROVIDER incurring
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
3 of 6
such expenses. Sun will only pay for actual expenses incurred by
PROVIDER's employees at fair and reasonable rates which were pre-
approved by Sun. PROVIDER will invoice Sun not more frequently than
monthly and as further detailed in Paragraph 3.3 of this Agreement.
4. PERFORMANCE STANDARDS.
----------------------
4.1 WARRANTY OF PROVIDER. PROVIDER warrants that the Support Services
shall be performed in a professional, good and workmanlike manner
consistent with the general industry standards.
4.2 MINIMUM STANDARDS. For thirty (30) days from the effective date of the
Agreement, PROVIDER will be furnishing Support Services on a probation
or trial basis. At any time during such period, Sun may terminate this
Agreement due to: (i) a failure of PROVIDER to meet mutually developed
performance metrics; or (ii) Sun's conclusion of a long term plan for
supporting Calls. At the end of each month following this trial
period, IAPT will evaluate PROVIDER's performance under this Exhibit,
including, but not limited to, the PROVIDER's service call information
and to conduct audits of service delivery to Support Customers.
4.3 NO WARRANTIES. PROVIDER makes no warranties regarding materials or
supplies provided by Sun.
5. TERM AND TERMINATION.
---------------------
5.1 TERM. This Agreement commences as of the date indicated in the
signature block below and will continue in full force and effect for
six (6) months, unless sooner terminated as provided herein. This
Agreement expires automatically upon the expiration of a six (6)
months term unless the Parties agree in writing to renew this
Agreement for an additional six (6) months term.
5.2 TERMINATION. Either Sun or PROVIDER may terminate this Agreement, with
or without cause, and for any reason, at any time upon thirty (30)
days prior written notice of termination to the other. Either Party
may terminate this Agreement: (i) immediately, by Notice upon material
breach by ther other Party, if such breach cannot be remedied; (ii) if
the other Party fails to cure any remedial material breach of this
Agreement within thirty (30) days of receipt of Notice of such breach;
and (iii) immediately, by Notice, if the other Party becomes
insolvent, makes a general assignment for the benefit of creditors,
files a voluntary petition of bankruptcy, suffers or permits the
appointment of a receiver for its business or assets, becomes subject
to any proceeding under any bankruptcy law, whether domestic or
foreign, or has wound up or liquidated its business voluntarily or
otherwise. Sun also may terminate this Agreement, without giving
notice to PROVIDER or an opportunity to cure, at any time within
thirty (30) days from the effective date of this Agreement in
accordance with Section 2.1 above, if PROVIDER fails to provide
Support Services to Sun's satisfaction within the first thirty (30)
days of this Agreement; and in such case, Sun shall compensate
PROVIDER by paying PROVIDER, at the support fees rate described in
this Agreement which had applied up to the date of termination, for
the remainder of such thirty (30 days period based on the average
daily call rate and hours spent per call as actually handled by
PROVIDER up to the date of termination.
5.3 EFFECT OF TERMINATION. Rights and obligations under this Agreement
which by their nature should survive, will remain in effect after
termination or expiration hereof. Provider agrees that it will have no
right to damages or indemnification of any nature due to any
expiration or termination of this Agreement, specifically including
commercial severance pay whether
4 of 6
by way of loss of future profits, payment for goodwill generated or
other commitments made in connection with the business contemplated by
this Agreement or other similar matters.
Within fifteen (15) days after the effective date of termination,
PROVIDER will return to Sun, at PROVIDER's expense, all Service
materials, Business Information, Customer Information, training
materials, Tools, any Sun Confidential Information, and all other
items belonging to Sun.
6. OPERATIONAL CONTACTS. Both parties agree to designate one (1) employee
--------------------
and one (1) backup employee who will be the principal contacts for all day-
to-day operational activities relating to the provision of Support Services
hereunder.
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As evidenced by the authorized signatures below, Sun and PROVIDER agree
that this Exhibit A shall be attached to and incorporated as a part of the
Agreement.
THE PARTIES HAVE READ AND AGREE TO BE BOUND HEREBY.
EFFECTIVE AS OF Oct / 20 / 1999
---------------
AGREED:
SUN MICROSYSTEMS, INC. PROVIDER:
LINUXCARE, INC.
By: /s/ Jon S. Williams By: /s/ Thomas W. Phillips
------------------- ----------------------
Print: Jon S. Williams Print: Thomas W. Phillips
--------------- -----------------
Title: Dir Marketing Title: VP World Wide Sales
------------- --------------------
6 of 6
EX-10.2.10
15
STAROFFICE SUPPORT SERVICES AGREEMENT WITH SUN
EXHIBIT 10.2.10
Agreement Number ______________
STAROFFICE SUPPORT SERVICES AGREEMENT
THIS STAROFFICE AGREEMENT ("Agreement") is entered into between Sun
Microsystems, Inc., with its principal place of business at 901 San Antonio
Road, Palo Alto, California 94303 ("Sun"), and LinuxCare, Inc., with its
principal place of business at 650 Townsend Street, San Francisco, California
94103 ("Provider"). Sun and Provider are collectively referred to as the
"Parties".
1. SCOPE. This Agreement establishes the terms and conditions under which
Provider will provide support services for StarOffice TM software products,
on a non-exclusive basis, to Sun Customers in Canada, the United States of
America, and Latin America.
2. DEFINITIONS.
2.1 "BUSINESS INFORMATION" means: (i) the Sun business data that may be
provided to Provider on product performance and Sun customer accounts
in connection with the provision of Support Services, and (ii)
information and analysis about a Sun Customer which Provider
collects/compiles in connection with the provision of Support
Services.
2.2 "CUSTOMER INFORMATION" means all information belonging to a Sun
Customer.
2.3 "NOTICE" means written notification, delivered in person or by means
evidenced by a delivery receipt to the other Party, which is deemed
effective upon receipt.
2.4 "SUPPORT SERVICES" means all support, assessment, and other services
for StarOffice software products, as described in detail in the SOW,
to be performed by Provider under this Agreement.
2.5 "SERVICE MATERIALS" means those service-related materials (including
tools, documentation, and manuals) necessary for the delivery of the
Support Services and that will be furnished to Provider by Sun in
accordance with the terms set forth in the SOW.
2.6 "STATEMENT OF WORK" OR "SOW" means the statement of work (as it may be
amended from time to time by Sun) attached to this Agreement as
Exhibit A.
2.7 "SUPPORT CUSTOMER" means a StarOffice products customer for which
Support Services will be provided under this Agreement.
3. PROVIDER OBLIGATIONS.
3.1 SUPPORT SERVICES. This Agreement contains the terms and conditions
which apply to Sun's purchases of Support Services from Provider.
Notwithstanding any terms or conditions contained in any
acknowledgement or other business forms transmitted by Provider,
Provider will perform the work set forth in the SOW in accordance with
the terms and conditions of this Agreement. Support Services will
conform to the scope of work described in the SOW. Provider will
perform Support Services as an independent contractor and in a
professional and workmanlike manner consistent with industry standards
and conforming to applicable product specifications. All Provider
acknowledgements and transmittals must reference and are subject to
this Agreement.
3.2 PERSONNEL. Provider will secure all personnel required to perform
Support Services pursuant to this Agreement. Provider will use
technically qualified service personnel, as defined by Sun from time
to time, and employ adequate safety precautions in performing its
obligations hereunder. At Sun's request, Provider will consent to, and
have its service personnel consent to a background check. In the event
that Support Customers require that Sun or its subcontractors comply
with other conditions prior to the provision of Support Services (e.g.
drug testing), both Sun and Provider will attempt to accommodate the
Support Customer's requirements. The Parties agree that Provider is an
independent contractor and in no event will any personnel hired by
Provider to provide Support Services hereunder be considered an
employee or agent of Sun. Nothing herein will be construed to grant to
Provider any right or authority to create any obligation, express or
implied, on behalf of Sun, or to bind Sun or its Support Customers in
any manner whatsoever.
3.3 DIRECT CONTRACTING. Provider acknowledges that Sun has made a major
investment in establishing customer relationships with the Support
Customers for whom Provider will provide Support
[*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
Page 1 of 9
Services under this Agreement. Provider agrees not to solicit support
services business on StarOffice software and products from such
Support Customers for a period of twelve (12) months from the date of
the last provision of Support Services under this Agreement to such
Support Customer.
3.4 SUN INFORMATION AND MATERIALS. Provider acknowledges and understands
that Business Information and Service Materials (collectively "Sun
Information and Materials") are proprietary and Sun owns all right,
title and interest, including copyrights or other intellectual
property rights, in and to any and all ideas, concepts, expertise,
programs, systems, methodologies, compilations, analyses, data or
other materials embodied in, underlying or reduced to practice in said
Sun Information and Materials. Provider agrees that it shall use Sun
Information and Materials solely for the purposes of performing
Support Services.
3.5 INDEMNITY.
3.7.1 Provider agrees to defend, indemnify and hold harmless Sun, its
affiliates, directors, officers, employees and agents from and
against any and all claims, demands, judgments and awards and
expenses related thereto (including court costs and reasonable
fees of attorneys and other professionals) brought or
threatened by any third parties, including Support Customers,
and arising out of Provider's failure to comply with this
Agreement or arising out of or resulting from Provider's
negligent performance of Support Services or other conduct of
Provider's subcontractors, agents or employees in relation
thereto. Sun will have no authority to settle any claim without
the prior written consent of Provider if Provider will have any
obligation thereunder. Sun expressly reserves the right to
retain separate counsel at Sun's own expense to participate in
the defense or settlement of such claims.
3.7.2 Provider shall defend Sun and/or the Support Customer against
any claim that Support Services furnished hereunder infringe
any U.S. Patent, trade secret or copyright, and will indemnify
Sun and/or the Support Customer against any loss, damage or
liability arising from final award against Sun and/or the
Support Customer, provided that Sun notifies the Provider
promptly in writing of the claim and provides Provider with
reasonable assistance and sole authority to defend or settle
such claims, at Provider's sole expense. Provider shall not be
liable for any claim of infringement arising from Provider's
conformance with specifications provided by Sun and/or the
Support Customer.
3.6 INSURANCE.
3.6.1 Minimum Insurance Required. During the term of this Agreement,
--------------------------
Provider will obtain and maintain at its own expense, with
financially reputable insurers licensed to do business in all
jurisdictions where Support Services are performed, liability
insurance sufficient to protect Sun from any claims described
in Section 3.5 above, and in any event, no less than the
policies and limits set forth below. Provider will pay the
premiums therefor, and deliver to Sun, upon request, proof of
such insurance. Said insurance coverage may be modified or
terminated only upon thirty (30) days Notice to Sun.
(i) Workers' Compensation as required under any Workers'
Compensation or similar law in the jurisdiction where work is
performed, with an Employer's Liability limit of not less than
One Million Dollars ($1,000,000.00) per occurrence/annual
aggregate;
(ii) Commercial General Liability, including coverage for
contractual liability and products/completed operations
liability, with a limit of not less than Five Million Dollars
($5,000,000.00) combined single limit per occurrence for bodily
injury, personal injury and property damage liability;
(iii) Business Auto insurance covering the ownership,
maintenance or use of any owned, non-owned hired automobile
with a limit of not less than One Million Dollars
($1,000,000.00) per occurrence/annual aggregate for bodily
injury, including death and property damage liability; and
(iv) Professional Liability insurance covering errors and
omissions, with a limit of not less than One Million Dollars
($1,000,000.00) per
occurrence.
3.6.2 CERTIFICATES OF INSURANCE. Provider will provide Sun with a
-------------------------
Certificate of Insurance showing that the foregoing insurance
policies are in full force and effect upon Sun's request. Any
approval by Sun of any insurance policies will not relieve
Provider of any
Page 2 of 9
responsibility hereunder, including but not limited to, claims
in excess of limits and coverages described above. Each
liability insurance policy obtained by Provider will name Sun
as an "additional insured" except on Section 3.6.1(i). Each
policy will expressly provide that it will not be subject to
cancellation or material change without at least thirty (30)
days' prior Notice to Sun.
3.6.3 Limitations. Nothing contained in this Section 3.6 limits the
-----------
Parties' liability to the other to the limits of insurance
certified or carried.
3.7 PERFORMANCE. Sun will measure levels of service, quality and Support
Customer satisfaction with the use of surveys and/or audits performed
either by Sun personnel or an independent company engaged by Sun for
such purpose. Provider agrees to provide, in a format acceptable to
Sun, any and all reports and other information requested by Sun.
Provider agrees to cooperate with any surveys and/or audits which Sun
may request.
3.8 QUALITY ASSURANCE. In the event that Support Services are not
delivered in a manner consistent with the provisions of this
Agreement, the SOW, or Sun's quality standards, Sun may request that
the situation be cured. Upon Provider's receipt of such notice,
Provider and Sun will jointly develop and implement within fifteen
(15) days an action plan to remedy the situation. If the situation is
not corrected within a total of thirty (30) days after notification of
the problem, or within a reasonable length of time as dictated by the
agreed upon action plan, Sun may, without incurring any penalty, sever
Provider's provision of further Support Services to specific Customer
accounts.
3.9 FAIR REPRESENTATION. Provider will represent Sun fairly and will make
no representations or guarantees, concerning Sun or the Support
Services, which are false or misleading. Provider will comply with all
applicable laws and regulations in performing under this Agreement.
3.10 ACCESS TO RESOURCE TOOLS AND INFORMATION. Provider understands that
Sun may furnish Provider with resource tools and information,
including but not limited to the non-exclusive right to use Sun's
StarOffice Knowledge Database, Sun's StarOffice Autotext Database, and
other web-based resources associated with StarOffice products for the
duration of this Agreement (collectively referred to as "Tools"), for
the sole purpose of providing Support Services to Support Customers
under this Agreement. Provider will not use the furnished Tools for
any other purpose. Provider understands that all Tools are supplied
"AS IS" and Sun disclaims all warranties (as set forth below in
Section 11). Provider understands that the Tools are proprietary and
Sun owns all right, title and interest, including copyrights or other
intellectual property rights, in and to any and all ideas, concepts,
expertise, programs, systems, methodologies, data or other materials
embodied in, underlying or reduced to practice in said Tools.
4. SUN'S OBLIGATIONS AND RESPONSIBILITIES.
4.1 SUPPORT SERVICES TRAINING. Sun will furnish Provider with at least ten
(10) business days of StarOffice software support training in
accordance with Paragraph 2.1 of the SOW. Sun personnel furnished to
Provider for training also will assist in auditing Provider's ability
to furnish satisfactory Support Services to Support Customers, as
further detailed in Paragraph 4.2 of the SOW.
4.2 SUPPORT FEES. Sun will compensate Provider for the rendering of
Support Services hereunder in accordance with the support fees rates
in Paragraph 3 of the SOW and also with Section 6.1 of this Agreement.
For a limited time and until Provider receives written notice from Sun
otherwise, Provider will not charge Support Customers any fees,
charges, or assessments in connection with Provider rendering Support
Services hereunder.
5. MUTUAL RIGHTS AND OBLIGATIONS.
5.1 EMPLOYEE BENEFITS. Each Party is solely responsible for payment of
wages, salaries, fringe benefits and other compensation of, or claimed
by, its own employees including, without limitations, contributions to
any employee benefit, medical or savings plan, and each Party also is
solely responsible for payment of all payroll taxes including, without
limitation, the withholding and payment of all federal, state, and
local income taxes, FICA, unemployment
taxes, and all other applicable payroll taxes. Each Party is also
solely responsible for compliance with applicable Workers'
Compensation coverages for its own employees. Each Party agrees to
indemnify and defend the other Party from all claims by any person,
government, or agency directly relating to failure to comply with this
section, including without limitation, any penalties and interest
which may be assessed against the other for breach of this provision.
Each Party will also indemnify
Page 3 of 9
and defend the other from all claims by any person or governmental
agency which arise directly from any failure by that Party to comply
with applicable Workers' Compensation laws with respect to maintenance
of Workers' Compensation coverage for its own employees.
5.2 COMPLIANCE WITH LAWS AND REGULATIONS. The Parties must comply with all
applicable laws, orders, codes and regulations in the performance of
this Agreement.
5.3 PERMITS AND LICENSES. Provider shall acquire and maintain in good
standing, and at its sole expense, all permits, licenses and other
entitlements required of it in the performance of Support Services
under this Agreement.
5.4 DISCRIMINATION. Neither Party will discriminate in any manner against
any individual because of race, color, religion, national origin, age,
sex or handicap. Provider, in performing Support Services under this
Agreement, will comply with all applicable laws, rules and regulations
concerning the prohibition of discrimination in employment.
6. COMMERCIAL TERMS.
6.1 REMUNERATION FOR SERVICE. In consideration for Support Services
provided, Sun will provide remuneration to Provider in accordance with
the applicable support fees rates set forth in Paragraph 3 of the SOW.
Remuneration will be provided within thirty (30) days after receipt of
Provider's invoice and is considered made by Sun on the date of
mailing as evidenced by postmark. Any out-of-pocket expenses (e.g.,
----
travel) incurred by Provider in connection with providing Support
Services will be the sole responsibility of Provider, unless otherwise
approved in writing by Sun prior to Provider incurring such expenses.
Sun will only pay for actual expenses incurred by Provider's employees
at fair and reasonable rates which were pre-approved by Sun. Provider
will invoice Sun not more frequently than monthly and as further
detailed in Paragraph 3.3 of the SOW.
6.2 PAYMENT OF EMPLOYEES. Provider will promptly pay its employees for all
work performed. If Provider does not pay its employees on a current
basis for work performed in connection with this Agreement, such
nonpayment will be deemed a material breach of this Agreement and will
entitle Sun, in addition to all other remedies, to withhold all
further payments to Provider.
6.3 TAXES. Provider will be responsible for the payment of any and all
taxes and government assessments due as a result of the performance of
Support Services or the payment thereof. Provider acknowledges and
agrees that it is solely the responsibility of Provider to report as
income all compensation received hereunder and Provider will indemnify
and hold harmless Sun and its Support Customers from and against all
claims, damages, losses, and reasonable expenses of attorneys and
other professionals relating to any obligation to pay any sales,
service, value-added or withholding taxes, social security,
unemployment or disability insurance or similar charges or impounds,
including any interest or penalties thereof, in connection with any
payments made to Provider hereunder.
7. RELATIONSHIP.
7.1 Provider is not granted any exclusive rights of any nature whatsoever
by this Agreement.
7.2 This Agreement is not intended to create a relationship such as a
partnership, franchise, joint venture, agency, master/servant or
employment relationship. Neither Party may act in a manner which
expresses or implies a relationship other than that of an independent
contractor, nor bind the other Party. Provider will not be entitled to
receive any employee benefits provided to Sun employees.
7.3 Absent Sun's prior written consent, Provider will not, during the term
of this Agreement, accept, promote or solicit orders for the provision
of Support Services to any third party Sun service provider and/or to
any provider of any support programs for StarOffice products. The
obligations of Provider set out in this section are fair and
reasonable in the commercial circumstances of this Agreement, and this
Agreement fairly and adequately compensates Provider in
consideration for such obligations.
8. OWNERSHIP, TRADEMARKS, LOGOS AND INVENTIONS.
8.1 "Sun Trademarks" means all names, marks, logos, designs, trade dress
and other brand designations used by Sun and its related companies, in
connection with products and services. Provider may refer to Support
Services by the associated Sun Trademarks only upon Sun's prior
written consent and provided that such reference is not misleading and
complies with the then current Sun Trademark and Logo Policies.
Provider will not remove, alter, or add to any Sun
Page 4 of 9
Trademarks, nor will it co-logo products and services. Provider is
granted no right, title or license to, or interest in, any Sun
Trademarks. Provider acknowledges Sun's rights in Sun Trademarks and
agrees that any use of Sun Trademarks by Provider will inure to the
sole benefit of Sun. Provider agrees not to (i) challenge Sun'
ownership or use of, (ii) register, or (iii) infringe any Sun
Trademarks, nor will Provider incorporate any Sun Trademarks into
Provider's trademarks, service marks, company names, internet
addresses, domain names, or any other similar designations. If
Provider acquires any rights in any Sun Trademarks by operation of law
or otherwise, it will immediately at no expense to Sun, assign such
rights to Sun along with any associated goodwill, applications, and/or
registrations.
8.2 All right, title and interest in and to all code, modifications,
enhancements, derivative works of or improvements to any Service
Materials, confidential information, or any Sun product, hardware or
software, conceived or reduced to practice by Provider during and in
the course of performing Support Services (collectively, "Works")
shall be assigned to Sun at no cost and/or shall be considered "works
made for hire" under the United States Copyright Act or other
equivalent or similar law, to the fullest extent permitted under
applicable law. If any Work created hereunder shall not be deemed to
constitute a work made for hire, and/or in the event that Provider
should, by operation of law or otherwise, be deemed to retain any
rights in a Work, Provider will assign all right, title and interest
in any such Work to Sun. Provider agrees to cooperate with Sun and to
execute all documents reasonably necessary for Sun to secure
intellectual property protection for such Works, in Sun's name, in all
countries and jurisdictions. Provider agrees, and shall obligate
Provider's employees to agree, that all code or information developed
hereunder shall be kept in confidence by Provider and Provider's
employees and shall be used only in the performance of this Agreement,
and may not be used for other purposes except upon such terms as
agreed to under this Agreement. Sun shall have all right, title and
interest to such code and/or modifications. Sun shall acquire title,
upon its delivery, to all software media and other information,
communication, and copies of the code developed hereunder.
8.3 Provider represents and warrants that it has agreements in place with
its employees or will put the same in place before the effective date
of this Agreement sufficient to enable it to comply in all respects
with its obligations under Section 8.2. Provider will ensure that its
employees and contractors execute such documents as may be necessary
to waive any moral rights which they may have under applicable
Canadian law.
9. CONFIDENTIAL INFORMATION. If either party desires that information provided
to the other party under this Agreement be held in confidence, that party
will, prior to or at the time of disclosure, identify the information in
writing as confidential or proprietary. The recipient may not disclose such
confidential or proprietary information, may use it only for purposes
specifically contemplated in this Agreement, and must treat it with the
same degree of care as it does its own similar information, but with no
less than reasonable care. These obligations do not apply to information
which: a) is or becomes known by recipient without an obligation to
maintain its confidentiality; b) is or becomes generally known to the
public through no act or omission of recipient, or c) is independently
developed by recipient without use of confidential or proprietary
information. This Section will not affect any other confidential disclosure
agreement between the parties. All Customer Information, Support Customers'
identities, Business Information, Service Materials, support manuals,
documentation and software are deemed "Sun Confidential Information", and
Provider will hold Sun Confidential Information in confidence and use Sun
Confidential Information only for purposes specifically contemplated by
this Agreement. It is understood and agreed that in the event of a breach
of this Section 9, damages may not be an adequate remedy and Sun will be
entitled to injunctive relief to restrain any such breach, threatened or
actual.
10. AIRCRAFT SERVICE AND NUCLEAR APPLICATIONS. Provider acknowledges that
Service Materials, training materials, software, products, services and
technical data delivered by Sun are not designed or intended for use in on-
line control of aircraft, air traffic, aircraft navigation or aircraft
communications; or in the design, construction, operation or maintenance of
any nuclear facility. SUN DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF
FITNESS FOR SUCH USES.
11. WARRANTIES; DISCLAIMERS. Provider represents and warrants that (a) all
Support Services will be performed in a professional and workmanlike
manner, consistent with general industry standards; and (b) any hardware,
software, or equipment used by
Provider in the performance of Support Services which is not directly
provided by Sun will not infringe or violate any patent, copyright, trade
secret, contract, or other proprietary or intellectual property rights of
any third party, and that Provider has full and complete authority to make
disclosure of, use, and incorporate into products such hardware, software,
or equipment in performing the Support Services. ALL OTHER EXPRESS OR
IMPLIED
Page 5 of 9
CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT,
ARE DISCLAIMED BY BOTH PARTIES, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS
ARE HELD TO BE LEGALLY INVALID.
12. LIMITATION OF LIABILITY. SUN'S AGGREGATE LIABILITY TO PROVIDER FOR ANY
HARM, LOSS, DAMAGE, EXPENSE, LIABILITY OR INJURY ARISING OUT OF ANY CLAIM,
ACTION, SUIT, OR PROCEEDING IN CONNECTION WITH, RELATING TO OR ARISING FROM
THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, WILL IN NO
EVENT EXCEED THE LESSER OF (A) THE TOTAL VALUE OF ALL SUPPORT FEES PAID TO
PROVIDER WITHIN THE PRECEDING SIX (6) MONTHS; OR (B) US$150,000. SUN SHALL
NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES IN CONNECTION WITH, RELATING TO OR ARISING FROM THIS
AGREEMENT (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER
ECONOMIC ADVANTAGE), HOWEVER IT ARISES, WHETHER FOR BREACH OR IN TORT, EVEN
IF SUN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. LIABILITY FOR
DAMAGES WILL BE SO LIMITED AND EXCLUDED, EVEN IF ANY REMEDY PROVIDED FOR IN
THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
13. TERM AND TERMINATION.
13.1 TERM. This Agreement commences as of the date indicated in the
signature block below and will continue in full force and effect for
six (6) months, unless sooner terminated as provided herein. This
Agreement expires automatically upon the expiration of a six (6)
months term unless the Parties agree in writing to renew this
Agreement for an additional six (6) months term.
13.2 TERMINATION. Either Sun or Provider may terminate this Agreement,
with or without cause, and for any reason, at any time upon thirty
(30) days prior written notice of termination to the other. Either
Party may terminate this Agreement: (i) immediately, by Notice upon
material, breach by the other Party, if such breach cannot be
remedied; (ii) if the other Party fails to cure any remedial material
breach of this Agreement within thirty (30) days of receipt of Notice
of such breach; and (iii) immediately, by Notice, if the other Party
becomes insolvent, makes a general assignment for the benefit of
creditors, files a voluntary petition of bankruptcy, suffers or
permits the appointment of a receiver for its business or assets,
becomes subject to any proceeding under any bankruptcy law, whether
domestic or foreign, or has wound up or liquidated its business
voluntarily or otherwise. Sun also may terminate this Agreement,
without giving notice to Provider or an opportunity to cure, at any
time within thirty (30) days from the effective date of this Agreement
in accordance with Section 4.1 above and Paragraph 4.2 of the SOW, if
Provider fails to provide Support Services to Sun's satisfaction
within the first thirty (30) days of this Agreement; and in such case,
Sun shall compensate Provider by paying Provider, at the support fees
rate in the SOW which had applied up to the date of termination, for
the remainder of such thirty (30) days period based on the average
daily call rate and hours spent per call as actually handled by
Provider up to the date of termination.
13.3 EFFECT OF TERMINATION. Rights and obligations under this Agreement
which by their nature should survive, will remain in effect after
termination or expiration hereof. Provider agrees that it will have no
right to damages or indemnification of any nature due to any
expiration or termination of this Agreement, specifically including
commercial severance pay whether by way of loss of future profits,
payment for goodwill generated or other commitments made in connection
with the business contemplated by this Agreement or other similar
matters.
Within fifteen (15) days after the effective date of termination,
Provider will return to Sun, at Provider's expense, all Service
Materials, Business Information, Customer Information, training
materials, Tools, any Sun Confidential Information, and all other
items belonging to Sun.
14. IMPORT AND EXPORT LAWS. All software, services, technical data and other
materials delivered under this Agreement are subject to U.S. export control
laws and may be subject to export or import regulations in other countries.
Provider agrees to comply strictly with all such laws and regulations and
acknowledges that it has the responsibility to obtain any required licenses
to export, re-export, transfer, whether directly or indirectly, or import
as may be required after delivery to Provider.
15. MISCELLANEOUS.
15.1 ENTIRE AGREEMENT. This Agreement contains the terms and conditions
which apply to all purchases of Support Services made pursuant to this
Agreement, notwithstanding any terms or
Page 6 of 9
conditions contained in any acknowledgement or other business forms
transmitted by Provider. It supersedes all prior or contemporaneous
oral or written communications, proposals, conditions,
representations and warranties and prevails over any conflicting or
additional terms of any quote, order, acknowledgement, or other
communication between the Parties relating to its subject matter
during the term of this Agreement. All Provider acknowledgements and
transmittals must reference this Agreement. No modification to this
Agreement will be binding, unless in writing and signed by an
authorized representative of each Party.
15.2 EXHIBITS. The current version of each Exhibit is hereby incorporated
by reference as part of this Agreement. Exhibits may be modified only
upon written consent by both Parties.
15.3 USE OF SUN'S NAME. Provider will not use Sun's name in any form of
publicity or release without Sun's prior written approval.
15.4 ATTORNEYS' FEES. In the event that any dispute arises between the
Parties hereto with regard to any of the provisions of this Agreement
of the performance of any of the terms and conditions hereof, the
prevailing Party in any such dispute will be entitled to recover
costs and expenses associated with resolving such dispute, including
reasonable attorneys' fees.
15.5 WAIVER OR DELAY. Any express waiver or failure to exercise promptly
any right under this Agreement will not create a continuing waiver or
any expectation of non-enforcement.
15.6 GOVERNMENT CONTRACTS. With respect to any Support Services performed
in connection with a government contract or subcontract, Provider
agrees to be bound by all those provisions of such contract or
subcontract which Sun is required to pass on to its subcontractors,
and such provisions are hereby incorporated by reference.
15.7 CHANGE OF CONTROL. In the event of the direct or indirect taking over
or assumption of control of Provider or of substantially all of its
assets by any government, governmental agency or other third party,
Sun may terminate this Agreement immediately upon written notice to
Provider.
15.8 ASSIGNMENT. Neither Party may assign or otherwise transfer any of its
rights or obligations under this Agreement, either in whole or in
part, without the prior written consent of the other Party, except
that Sun may assign this or any Agreement to an affiliated company,
or any of these. Any assignment or delegation by Provider without
such consent will be null and void, and will give Sun the right
immediately to terminate this Agreement without liability for Support
Services performed after such termination. The rights and liabilities
of the Parties hereto will be binding upon and inure to the Parties'
permitted successors and assigns.
15.9 NOTICES. All Notices must be in writing and delivered either in
person or by a means evidenced by delivery receipt to the address
specified below. Such Notice will be effective upon receipt.
Sun: Provider:
Sun Microsystems, Inc. LinuxCare, Inc.
901 San Antonio Road 650 Townsend Street
Palo Alto, California 94303 San Francisco, California 94103
Attn: Enterprise Services Director of Attn: TOM PHILLIPS
------------
Strategic Partners and Alliances VP WORLDWIDE SALES
cc: General Counsel, Enterprise Services Legal
500 Eldorado Boulevard, MS BRM01-200
Broomfield, Colorado 80021
15.10 SEVERABILITY. If any provision, or part thereof, in an Agreement, is
held to be invalid, void, or illegal, it shall be severed from the
Agreement, and shall not affect, impair, or invalidate any other
provision, or part thereof, and it shall be replaced by a provision
which comes closest to such severed provision, or part thereof, in
language and intent, without being invalid, void, or illegal.
15.11 MEANING OF CERTAIN WORDS. The term "includes" and "including" will
not be construed to imply any limitation. Unless otherwise stated,
any reference contained in this Agreement to a Section refers to the
provision of this Agreement. Wherever the context may require, any
pronouns used in this Agreement will include the corresponding
masculine, feminine, or neuter forms, and the singular form of nouns
or pronouns, including all defined terms, will include the plural and
visa versa.
Page 7 of 9
15.12 HEADINGS; ORDER OF PRECEDENCE. Section titles and captions contained
in this Agreement are for reference only and in no way define, limit,
extend or describe the scope of this Agreement or the intent of any
of its provisions. If any inconsistencies or conflicts arise between
the provisions of this Agreement and the SOW, the following order of
precedence shall apply in order of priority: (1) the Agreement, and
(2) the SOW.
15.13 GOVERNING LAW. This Agreement and any dispute or action related
hereto will be governed by, and construed in accordance with, the
laws of California and controlling U.S. federal law, excluding choice
of law rules of any jurisdiction and the United Nations Convention
for the International Sale of Goods.
15.14 COUNTERPARTS. This Agreement may be executed in counterparts.
THIS AGREEMENT IS EFFECTIVE AS OF 9/24/99. THE PARTIES HAVE READ THIS AGREEMENT
AND AGREE TO BE BOUND THEREBY.
SUN MICROSYSTEMS, INC. PROVIDER LINUXCARE, INC.
By: /s/ Richard Ford By: /s/ Thomas W. Phillips
----------------------------- -----------------------------
Print: Richard Ford Print: Thomas W. Phillips
------------ ------------------
Title: Director of Strategic Alliance Title: V.P. World Wide Sale
------------------------------ --------------------
Page 8 of 9
EXHIBIT A
STATEMENT OF WORK
(attached hereto)
Page 9 of 9
EXHIBIT A - STATEMENT OF WORK FOR STAR OFFICE SUPPORT SERVICES
This Statement of Work for StarOffice Support Services is Exhibit A to the
StarOffice Support Services Agreement ("Agreement") between Sun
Microsystems Inc, ("Sun") and LinuxCare, Inc, ("PROVIDER"). This Exhibit A
is incorporated by reference as part of the Agreement.
1. SERVICES TO BE PROVIDED BY PROVIDER.
-----------------------------------
1.1 DEFINITIONS.
1.1.1 "Business Hours" means 8:00 a.m. to 8:00 p.m. Eastern
Standard Time, Monday through Friday, excluding Sun
holidays.
1.1.2 "Call Back" means calls which, at the Support Customer's
request are handled by means of a returned telephone call
to the contact of record (as shown on the service order),
by a PROVIDER support engineer.
1.1.3 "Support Customer" or "End User" means a customer who
directly or indirectly received distribution of StarOffice
products from Sun or from StarDivision prior to its
acquisition by Sun.
1.1.4 "Live Transfer" means calls which, at the Support
Customer's request, are directly connected to a PROVIDER
support engineer.
1.1.5 "Support Services" means remote, centralized, software
support services of StarOffice software products to be
provided by PROVIDER. This definition excludes on-site
support services of any kind.
1.1.6 "Call" or "Calls" means Support Customer's request for
service regardless of method of transmission.
1.1.7 "Enterprise Services" means the Enterprise Services
Division of Sun.
1.1.8 "Service Order" means the documentation of a Support
Services Call.
1.2 SUPPORT SERVICES.
1.2.1 Services. PROVIDER will provide Support Services for
Support Customers during Business Hours only. Such Support
Services shall be limited to the StarOffice software
products and their compatibility with any of the platforms
(hardware/operating system) and peripheral devices (e.g.
printers) with which they interoperate. Support Services
shall be provided in accordance with the procedures
outlined in Section 1.4 of this Exhibit A.
1.2.2 Assignment of Engineers. PROVIDER will assign engineers to
provide Support Services under this Exhibit who, at the
time of the assignment, are trained in providing support
to StarOffice products.
1.3 TELECOM COSTS. PROVIDER will be responsible for all outbound
telecommunications costs related to the provision of Support
Services it provides.
Page 1 of 5
1.4 PROCEDURES FOR SUPPORT SERVICE CALLS.
1.4.1 Receipt of Support Customer Calls. Support Customer Calls
will be received via phone, email, and fax. Enterprise
Services will establish automatic routing of Support
Customer phone calls, emails and faxes to PROVIDER
designated communication equipment. PROVIDER will identify
DNIS numbers, email addresses and phone numbers required
to allow proper Support Customer Call routing. PROVIDER
employees dealing with Support Customers shall identify
themselves as "Sun Customer Care Center" employees and
answer frontline calls accordingly. At no time shall
PROVIDER nor any of its employees or representatives
expose PROVIDER's identity to Support Customers.
1.4.2 Response. PROVIDER will respond to Calls by reviewing the
request and providing an initial response via email to
Support Customers within 24 hours of receipt of Call. It
is understood that Support Customers corresponding via
email through the Sun web site may submit requests in
foreign languages. PROVIDER will use best efforts to
respond in Support Customers' native language. It is also
understood that some Support Customers may require
assistance over the phone for more complex issues.
PROVIDER will use its judgment to determine if phone
assistance is required. It is the intent of Enterprise
Services to change the expectations of Support Customers
to use electronic means for submitting requests and
receiving responses. Email responses to Support Customers
shall indicate a Sun-furnished mail address/alias. At no
time shall PROVIDER nor any of its employees or
representatives expose PROVIDER's identity to Support
Customers.
1.4.3 Data Entry. PROVIDER shall record all relevant data
(reference SOW paragraph 1.5) concerning the Support
Customer within PROVIDER's call management system.
PROVIDER shall furnish this information to Enterprise
Services on a weekly basis. Additionally, PROVIDER shall
allow Enterprise Services electronic access to Support
Customer Service Orders within PROVIDER's call management
system in order to assist with troubleshooting and to
monitor Support Service activity.
1.4.4 Closure. PROVIDER acknowledges and agrees that Support
Customer determines when a Service Order is completed or
"closed".
1.4.5 Escalation. If PROVIDER is unable to close a Service Order
within twenty-four (24) hours, PROVIDER will escalate Call
immediately during Business Hours to Enterprise Services
by contacting the designated Enterprise Services point of
contact.
1.5 DATA COLLECTION AND REPORTING. PROVIDER will collect and report
the following data on a weekly basis. Information shall be
furnished electronically in StarOffice Spreadsheet compatible
format. For each call taken, PROVIDER shall furnish:
a. Support Customer information (Support Customer Name,
Address, City, State, Country)
b. type of End User (Enterprise, Educational, Personal)
c. Call complexity (Type of Problem, Resolution Time)
d. Support Customer platforms (Hardware and Operating System)
Page 2 of 5
e. escalated back to Enterprise Services (Y/N)
f. method of Support Customer contact (phone, email, fax)
g. method of response to Support Customer (phone, email, fax)
h. summary reporting should include:
1) total number of Calls
2) # of Calls by Support Customer location (State, Country)
3) # of Calls by type of End User
4) # of Calls by platform
5) # of Calls escalated back to Enterprise Services
6) # of Calls by type of problem (e.g. registration,
printer drivers, etc.)
7) average resolution time
Additionally, PROVIDER will furnish updates to Enterprise Services for
the StarOffice Knowledge Database or StarOffice Autotext Database as
new information is discovered.
2. ENTERPRISE SERVICES OBLIGATIONS.
-------------------------------
2.1 TRAINING. Enterprise Services will provide an on-site trainer,
who will be available to PROVIDER for a minimum of ten (10) business
days, to train PROVIDER personnel with respect to Support Services.
2.2 TOOLS AND DATABASE ACCESS. Enterprise Services will allow
PROVIDER access to Enterprise Services' StarOffice Knowledge Database
and the StarOffice Autotext Database solely for the purpose of
providing Support Services. PROVIDER agrees and acknowledges that the
information contained in the Knowledge and Autotext databases are
hereby identified, without the need for further identification, as
proprietary and subject to the provisions of Section 3.10 of the
Agreement, Access to Resource Tools and Information.
2.3 TELECOM COSTS. Enterprise Services will be responsible for
inbound telecommunications costs to PROVIDER which are incurred
through the provision of Support Services EXCEPT that Enterprise
Services will not reimburse collect calls that are placed to PROVIDER
by Support Customers.
2.4 ESCALATION POINT OF CONTACT. Enterprise Services will make known
to PROVIDER the contact information for the engineer(s) that will be
responsible for accepting Call escalations. Enterprise Services will
provide Call closure information on all escalated Calls so that
PROVIDER reports may be complete. It is the responsibility of the
PROVIDER to request Call closure information from Enterprise Services
on Calls that are escalated back to Enterprise Services. If
information is not available, PROVIDER shall indicate so within its
report.
3. METHOD AND CONDITIONS OF COMPENSATION.
-------------------------------------
Page 3 of 5
3.1 Compensation. Enterprise Services will pay PROVIDER [*] per hour
worked by PROVIDER personnel in the Call acceptance and resolution of
support requests by Support Customers. A minimum of [*] and a maximum of
[*] will be paid for any one Call. After thirty (30) days, rates will be
reviewed to ensure adequacy of pricing. If required, a mutually acceptable
adjustment in pricing shall be made.
3.2 DETERMINATION OF FEES. PROVIDER shall provide a summary timesheet of
all employees' hours worked in support of Support Services. This timesheet
should identify each Service Order worked on, the actual number of hours
worked for each Call, and the billable hours for each Call.
3.3 INVOICING OF FEES. PROVIDER's invoices will be paid in accordance with
the payment terms set forth in Section 6.1 of the Agreement. Invoices shall
contain a summary of charges together with the Sun-assigned accounting
purchase order number clearly identified and a summary timesheet as
identified in SOW paragraph 3.2. Additionally, PROVIDER's invoices should
be submitted monthly by the second Tuesday of the month following delivery
of Support Services.
4. PERFORMANCE STANDARDS.
----------------------
4.1 WARRANTY OF PROVIDER. PROVIDER warrants that the Support Services
shall be performed in a professional, good and workmanlike manner
consistent with the general industry standards.
4.2 MINIMUM STANDARDS. For thirty (30) days from the effective date of the
Agreement, PROVIDER will be furnishing Support Services on a probation or
trial basis. At any time during such period, Enterprise Services may
terminate this Agreement due to: (i) a failure of PROVIDER to meet mutually
developed performance metrics; or (ii) a significant reduction in the
volume of Support Services Calls; or (iii) Enterprise Services' conclusion
of a long term plan for supporting Calls. At the end of each month
following this trial period, Enterprise Services will evaluate PROVIDER's
performance under this Exhibit, including, but not limited to, the
PROVIDER's ability to resolve calls in an accurate and timely fashion.
Enterprise Services reserves the right to contact its Support Customers to
verify the accuracy of PROVIDER's service call information and to conduct
audits of service delivery to Support Customers.
4.3 NO WARRANTIES. PROVIDER makes no warranties regarding materials or
supplies provided by Enterprise Services.
5. OPERATIONAL CONTACTS. Both parties agree to designate one (1) employee and
---------------------
one (1) backup employee who will be the principal contacts for all day-to-day
operational activities relating the provision of Support Services hereunder.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
Page 4 of 5
As evidenced by the authorized signatures below, Sun and PROVIDER agree that
this Exhibit A shall be attached to and incorporated as a part of the Agreement.
THE PARTIES HAVE READ AND AGREE TO BE BOUND HEREBY.
EFFECTIVE AS OF 9 / 24 / 99
- -- --
AGREED:
SUN MICROSYSTEMS, INC. PROVIDER:
LINUXCARE, INC.
By: /s/ Richard Ford By: /s/ Thomas W. Phillips
Print: Richard Ford Print: Thomas W. Phillips
------------ ------------------
Title: Director of Strategic Alliance Title: V.P. World Wide Sales
------------------------------ ---------------------
Page 5 of 5
EX-10.3.1
16
AGREEMENT WITH EURO BUSINESS CENTER
EXHIBIT 10.3.1
Keizersgracht 62-64
1015 CS Amsterdam
The Netherlands
Phone: 31(0)20 520 75 00
Fax: 31(0)20 520 75 10
E-mail:info@amsterdam.eurobc.nl
Bank Account no 54,91.12.332
Chamber of Commerce:
Amsterdam 33148590
FAX
FOR : Mr A.F Tyde III
FAXNO. : + 1 415 701 7457
FROM : Euro Business Center
Our ref :
DATE : 17-9-99
PAGES : 7
Please contact us if incomplete or illegible: Tel.: +31 20 520 7500 / Fax: +31
20 520 7510
Dear Mr Tyde,
Herewith we fax you the contract for office A101 and a102.
Yours sincerely,
EURO BUSINESS CENTER
AMSTERDAM
/s/ John Milhado
John Milhado
Managing Director
www.eurobc.nl
THIS AGREEMENT is made this Friday 17 September 1999
BETWEEN:
(1) EURO BUSINESS CENTER at Keizersgracht 62-64, Amsterdam (hereinafter
referred to as "EBC");
(2) and Linuxcare, Inc. (hereinafter referred to as "the client").
Our ref.
WHEREAS:
(a) The business conducted by EBC consists of the provision of services for
companies, by way of temporary office accommodation and facilities,
including supervisory, administrative and secretarial services;
(b) for the purposes of conducting its business activities as described under
(a) above, EBC occupies premises situated at Keizersgracht 62-64, 97-99 and
106, in Amsterdam ("the premises");
(c) the client wishes to avail itself of said services in the manner, and under
the terms and conditions, provided for in this Agreement.
IT IS AGREED AS FOLLOWS:
1. (1) EBC shall supply office A101 and A102 at Keizersgracht 106;
(2) the client may use the offices as its registered office under the name
of Linuxcare, Inc.;
(3) the client shall not, without the prior written consent of EBC, employ
or directly engage the services of any member of EBC's staff; each and
any breach of this provision shall be subject to a penalty payment of
Guilders 25,000.00 (twenty-five thousand Guilders);
(4) the client agrees that it will conduct its business in such a way as
not to interfere with the business activities of any other client or
clients of EBC; the client further agrees to instruct its designated
employees to act accordingly; the client shall not accept any collect
calls and shall not make use of teleservices such as message services,
teleplus services and conference calls;
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(5) the client indemnifies EBC against any claims by the client or by
third parties in respect of damages suffered as a result of the
client's failure to fulfil its obligations under sub-clause (4).
2. THIS AGREEMENT is entered upon for a period of 12 months and commencing on
1 October 1999 and therefore ending on 30 September 2000. If no written
notice is received 3 months before the end of the contract, the contract
will automatically be renewed with 12 months.
3. (1) The client is entitled to use the address of EBC as its mailing
address on its stationery and other printed matter;
(2) EBC shall arrange for incoming post, telephone, fax messages and other
items which arrive at the premises for the client, to be delivered
promptly to the client;
(3) should the client so require, EBC shall arrange for the client's name
and the telephone number accorded to it to be entered in the local
(Amsterdam) and national telephone directories at cost; in this case,
the client shall give timely written notice of its wishes to EBC;
(4) the client is entitled to use the reception services operated by EBC
at the Premises;
(5) besides the services described under Clause 1 (1) and Clause 3 (1) to
(4), which are covered by the monthly service charge stated in Clause
4 (1) below, the client is also entitled to additional services to be
provided by EBC;
(6) the rights and services to which the client is entitled under the
terms of this agreement are personal to the client and its designated
employees, and such rights and services may not, without the prior
written consent of EBC, be transferred or assigned to any third party.
4. (1) The client agrees to pay to EBC for the duration of this Agreement a
general charge of Guilders 6,000.00 per month, including a private
telephone and fax number(no and ), plus 17.5% VAT. Rent is payable
three months in advance. Furthermore a deposit of Guilders 6,000.00 is
required ;
(2) the security deposit referred to in sub-clause of this Clause shall be
repaid to the client within thirty days after termination of this
Agreement, after receipt of all outstanding amounts due by the client
to EBC;
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(3) the monthly payment stated in sub-clause (1) of this Clause may be
increased twice-yearly by EBC, provided that a minimum of one calendar
month notice is given in writing;
(4) in addition, EBC shall render a Statement of any charge due for
additional services provided to the client during the preceding month,
and shall specify in such Statement any amounts due in respect of
postal, fax and telephone expenses etc. incurred on behalf of the
client during the same period. For prices we refer to our general
documentation;
(5) the client shall pay the amount reflected in the said Statement to EBC
no later than seven days after the date of such Statement; this amount
(including VAT) shall not exceed the sum paid as deposit. Should it
reach the deposit figure, immediate payment must be made by cash,
credit card or telephonic transfer, failing which EBC reserves the
right to suspend all services until such time as payment in full has
been received. The foregoing shall in no way invalidate the client's
contractual obligations, which will remain in force in to
notwithstanding.
(6) The use of a meeting room one day a month is included in the rental
price.
5. (1) The client agrees that EBC shall in no event be held liable for
loss of, or damage to, any documents or other items resulting from
services provided by the Dutch Post Office, courier service and/or
other companies;
(2) with reference to that stated in sub-clause (1) of this Clause, any
insurance cover required by the client shall be arranged by the client
at its own expense.
6. The client is entitled to a key card for the front door of Keizersgracht
106.
7. Clients of Euro Business Center are permitted to place their own nameplate
in the lobby at Keizersgracht 106.
8. This agreement shall be interpreted and effected in accordance with the
Laws of the Netherlands, and the parties hereto agree to adhere to the
exclusive jurisdiction of the Court of Amsterdam.
9. All our offers, agreements and services, apply to the General Conditions of
Euro Business Center as registered with the Chamber of Commerce in
Amsterdam dated 12 May 1992.
The signature below certifies that a copy of these has been received, the
contents duly noted,
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and that these Terms and Conditions are hereby accepted.
Signed at Friday 17 September 1999 (Please sign every page)
By: By:
Jacqueline Welleman Arthur Tyde
Manager
/s/ Arthur Tyde 9/27/99
For and on behalf of: For and on behalf of:
EURO BUSINESS CENTER Linuxcare, Inc.
AMSTERDAM
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