Exhibit 10.5
COGNIZANT
[LOGO] TECHNOLOGY
SOLUTIONS
A Cognizant Company
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0000 Xxxxxxxx Xxx Xxxx XX 00000
[FORM OF]
SERVICE AGREEMENT
This Agreement dated as of __________is between _______________
("CUSTOMER") as customer, and Cognizant Technology Solutions Corporation
("CTS"), as service provider, and it defines the agreement between CUSTOMER
and CTS for the services ("Services") that will be rendered by CTS for
CUSTOMER pursuant hereto. The details of Services to be provided by CTS to
CUSTOMER are outlined in the enclosed Work Schedule or Schedules which are
attached hereto and made a part hereof.
1. CERTAIN DEFINITIONS
a) "Project" shall mean the Services and Deliverables to be provided by
CTS under a specific Work Schedule.
b) "Work Schedule" shall mean an attachment to this Agreement which
references this Agreement and defines, with respect to a specific
Project, the scope, Services, Deliverables, CTS responsibilities,
CUSTOMER responsibilities, acceptance criteria, fees and payment
schedule, and any modifications to this Agreement. Work Schedules
shall be signed by both parties and shall be incorporated in and made
part of this Agreement. In the event of a conflict between a Work
Schedule and this Agreement, the Work Schedule shall prevail.
c) "Deliverables" are the outputs of Services to be supplied under any
Work Schedule, and shall include but are not limited to, all software
and written material, including programs, tapes, listings, and other
programming documentation.
2. OWNERSHIP OF SERVICES AND DELIVERABLES
a) CTS agrees and acknowledges that all ownership, title, intellectual
property and other proprietary rights (including, without limitation,
all patents, copyrights, trademarks and trade secrets) (collectively,
"Proprietary Rights") in any Services or Deliverables provided to or
developed for CUSTOMER by CTS or any Representative (as defined below)
of CTS, whether such Proprietary Rights arise under the laws of India,
USA or any other country in the world, shall automatically vest in
CUSTOMER and CTS hereby assigns all such Proprietary Rights in such
Services and Deliverables to CUSTOMER, except for those Services and
Deliverables listed on any Work Schedule, which shall remain the
property of CTS.
b) CTS agrees that it shall not, either directly or through its
Representatives, claim any Proprietary Rights with respect to any
Services or Deliverables provided to CUSTOMER and that any work
performed by CTS or its Representatives for CUSTOMER shall be
considered a "Work for Hire" and CUSTOMER shall own all rights
comprised in any copyright obtained or obtainable by CTS with respect
to such Services or Deliverables.
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c) Notwithstanding the foregoing, Proprietary Rights, Deliverables and
Services shall not include any of CTS's methodologies for managing
Year 2000 projects or CTS's or third parties' software tools,
including but not limited to (a) Impact Analyzer and Viewer, (b) Code
Changers and (c) Data Migration Program Generator, nor any new or
improved methodologies or tools developed by CTS during the course of
any Project hereunder which are not explicitly included within the
Deliverables defined in any Work Schedule hereunder (all such
methodologies and tools, collectively, the "Tools"). The Tools are
proprietary to CTS or used under license from third parties and shall
not be considered "Works for Hire." CUSTOMER further acknowledges that
CTS shall be free to use the Residuals relating to Services or
Deliverables for any purpose, including use in the development and
enhancement of tools to support delivery of its services, and that
such Residuals shall not constitute Proprietary Rights or "Works for
Hire" and will not be the property of CUSTOMER. The term "Residuals"
as used herein means ideas and concepts related to Services or
Deliverables in non-tangible form which are mentally retained by
employees of CTS.
d) In the event of termination of this Agreement or any Work Schedule by
reason of a breach or default of CTS, CTS hereby grants to CUSTOMER,
effective in such event, a royalty-free, irrevocable, non-exclusive
paid-up license to use and modify the Tools for the purpose of
completing any Project and undertaking any additional Year 2000
remediation projects for CUSTOMER and shall deliver to CUSTOMER copies
of all program code, specifications, documentation and other
information as may be necessary to effectuate such license, subject,
however, to any restrictions imposed on CTS by third-party vendors
with respect to embedded software, licensed software and any other
restrictions or limitations to which CTS is subject; provided,
however, that CUSTOMER may utilize such license only for its internal
use as aforesaid and may not sublicense or remarket the licensed Tools
to any third party.
3. CONFIDENTIALITY
a) CTS shall, and shall cause each of its employees, officers, directors,
agents and consultants (collectively, "Representatives") who are
involved in the CUSTOMER relationship to, keep all Confidential
Information of CUSTOMER confidential, not to disclose it to any third
party without the prior written consent of CUSTOMER, and not to use it
for any purpose other than that for which it was provided to CTS.
b) CTS shall only disclose Confidential Information to those of its
Representatives who have a need to know the same for legitimate
business purposes.
c) CTS shall make only such notes, sketches, drawings, photocopies or
other written or photographic records of or relating to the
Confidential Information (collectively, "Records") as are reasonably
necessary to provide the Services or Deliverables and all such Records
shall belong to CUSTOMER and such Records shall be deemed to be
Confidential Information for purposes of this Agreement. All
Confidential Information shall be handed over to CUSTOMER promptly
upon the written request of CUSTOMER.
d) In the event that CTS or its Representatives become legally compelled
to disclose any Confidential Information, CTS shall, if feasible, give
sufficient notice to CUSTOMER to permit CUSTOMER to seek a protective
order or other appropriate relief. If such order or other relief is
not obtained, CTS shall only make disclosure of such portion of the
Confidential Information that is legally required and no more.
e) CTS confirms and acknowledges that any disclosure of Confidential
Information by CUSTOMER to CTS shall not be construed as granting in
any manner any license or other right to use such Confidential
Information other than for the sole purpose for which it was provided
to CTS.
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f) CUSTOMER and its Representatives similarly agree to maintain
information regarding CTS's processes, tools, methodologies and any
other Confidential Information of CTS strictly confidential, and the
foregoing paragraphs (a) - (e) shall apply equally to CUSTOMER's
obligations to CTS.
g) "Confidential Information" hereunder includes all information which is
considered proprietary to CTS or CUSTOMER, as the case may be,
including but not limited to information or materials related to the
business affairs of the respective party, customer information, design
programs and documentation of data processing applications systems and
software, and the Services and Deliverables developed as part of this
Agreement. Confidential Information shall not include, however, any
information which (i) is generally available to the public, or becomes
available to the public other than as a result of an improper
disclosure hereunder, (ii) was previously known to the party obligated
hereunder, (iii) becomes available to the obligated party on a
non-confidential basis from a source other than the disclosing party,
provided the source is not known by the obligated party to be in
violation of a confidentiality obligation to the disclosing party, or
(iv) was independently developed by the obligated party without
reference to or reliance on Confidential Information of the other
party.
4. DOCUMENTATION
As an integral part of any Project as set forth in the Work Schedule, CTS
shall be required to provide detailed documentation describing the content,
purpose, methods and operation of any programs and procedures developed by
CTS in connection with such Project.
5. PERSONNEL; NON-SOLICITATION
a) All persons assigned to any Project will be employees of CTS or its
affiliated companies, provided that CTS may retain independent
contractors with the prior written approval of CUSTOMER. CTS shall
assign a dedicated group of qualified programmers or other personnel,
subject to CUSTOMER's approval, whose primary responsibility will be
to provide Deliverables for the Project as set forth in the relevant
Work Schedule. CTS will submit to CUSTOMER for approval each CTS
employee at or above the level of Assistant Project Manager to be
assigned to the Project ("Approvable Employees"), together with a
summary of the Approvable Employee's education, background and
experience. If CUSTOMER does not reject the proposed Approvable
Employee within 15 days after the request for approval, CUSTOMER will
be deemed to have approved the Approvable Employee for the Project. In
the event that CUSTOMER is unsatisfied with the qualifications of any
such person, CTS will select a different individual who reasonably
meets CUSTOMER's requirements. Notwithstanding CUSTOMER's prior
approval of a CTS Approvable Employee, if CUSTOMER notifies CTS that
the Approvable Employee does not adequately perform assigned
responsibilities, lacks the abilities or skills (including
interpersonal skills) needed to fulfill the tasks relating to the
Project, fails to comply with company policies and procedures for
maintaining security of CUSTOMER's computer systems, or is otherwise
unsatisfactory to CUSTOMER, CTS shall take such necessary actions to
substantially improve such person's conduct or performance, or at
CUSTOMER's request and at no cost to CUSTOMER, CTS shall replace such
person with an individual who reasonably meets CUSTOMER's
requirements.
b) CTS reserves the right to replace its employees assigned to CUSTOMER
when CTS deems necessary, provided that (I) prior to replacing any
Approvable Employee, CTS shall give CUSTOMER not less than 10 days
prior written notice and shall discuss with CUSTOMER the reasons for
the replacement, (ii). any CTS employee
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substituted for an Approvable Employee shall meet the qualifications
set forth in the preceding paragraph (a),. (iii) if CTS removes a
Project Manager from a Project for reassignment to another client, CTS
shall provide a replacement Project Manager who will start on the
Project prior to the end date of the replaced individual and CTS will
not charge CUSTOMER for the services provided by the replacement
Project Manager for a reasonable overlap period not exceeding one
week, and (iv) CTS agrees that it may not divert employees from any
Project under this Agreement solely in the interest of attracting or
better servicing other clients of CTS only if such diversion would not
materially delay or otherwise have a material adverse effect on the
completion of any Project hereunder.
c) CTS represents that all employees, agents and consultants engaged in
work on any Project under this Agreement will have executed agreements
with CTS sufficient to permit CTS to carry out its obligations under
Sections 2 and 3 hereof.
d) CUSTOMER and CTS agree that they will not employ as a staff or
contractor, any person working for the other, for one year from the
date such person ceases, while this agreement is in effect, to be an
employee of CUSTOMER or CTS, as the case may be; provided, however,
that CUSTOMER shall not be bound by this prohibition in the event of a
termination of the Agreement by reason of a breach or default by CTS.
6. PROJECT MANAGEMENT
a) Each party will designate in the Work Schedule at least one individual
to serve as its Project Manager. Both parties may from time to time
replace their Project Managers, provided such replacement does not
delay the completion of the Project and provided that each new Project
Manager shall be subject to the reasonable approval of the other
party. If CTS's Project Manager is unable to perform his or her duties
for any reason, CTS will use its best efforts to replace the Project
Manager within 5 business days. The Project Managers will manage the
Project and be the primary contacts for notices and communications
hereunder. CTS will deliver periodic status reports to CUSTOMER's
Project Manager as more specifically set out in the Work Schedule,
identifying, among other things, material issues that have been
resolved or are to be resolved, along with a projected date of
resolution. On a mutually agreed upon time and schedule, until final
acceptance as defined in the Work Schedule, the Project Managers, and
other appropriate personnel, will meet regularly to discuss the
progress of the Project and any outstanding issues to resolve, and
make reasonable efforts to resolve any problems in performing the
Project.
b) Either party, through its Project Manager, may propose changes to the
Work Schedule, which shall be subject to agreement of the other party.
With respect to any change requested by CUSTOMER, CTS will notify
CUSTOMER's Project Manager in writing no later than 10 days after the
change request is submitted, how the change would impact the Project,
including but not limited to changes in CTS or CUSTOMER staffing
requirements or other resources, effects on the quality or nature of
the Deliverables, effects on the Project schedule, adjustments to
CTS's professional charges, or any other effects on the Work Schedule.
If CUSTOMER, in its sole discretion, authorizes the change and if the
change is accepted by CTS, the change shall be implemented; provided
that CTS shall use its best efforts to accept any changes so
authorized by CUSTOMER that relate to acceleration or deceleration of
the time schedule of the Project.
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7. PRICING
Fees for Year 2000 remediation Projects charged on a time-and-materials
basis shall be as set forth on Exhibit 1 hereto. Fees for Year 2000
remediation Projects charged on a line-of-code basis and fees for non-Year
2000 Projects shall be set forth in the respective Work Schedule.
8. PAYMENT TERMS
a) CTS shall invoice CUSTOMER every month for the services rendered. The
invoice payment terms are net thirty days from the invoice date,
assuming the services or goods have been satisfactorily delivered to
CUSTOMER. Each invoice shall set forth the supporting details listed
in Exhibit 1 hereto.
b) CUSTOMER shall perform any tax withholding required by any state or
the U.S. government. This withholding shall be deducted from the
payments made to CTS by the CUSTOMER. CUSTOMER shall not be liable
for reimbursing CTS for such withholding. This provision shall not
apply to state sales or use tax, which CUSTOMER shall be responsible
for paying. CTS shall make clear on its invoices to the CUSTOMER the
amount billed for any services provided in any state and the amount
billed for any services provided outside the United States.
9. VISA/WORK PERMITS
In the event it is necessary for CTS to obtain visas or work permits for
CTS employees, the CUSTOMER will provide documentation indicating the
nature and location of the work to be performed, and its necessity, or
other documentation as may be reasonably required and related to this
Agreement, and will post such notices as are required by law. CTS shall not
be liable or deemed in default hereunder for any delay or failure in
performance under this Agreement resulting from (i) failure of CUSTOMER to
comply with the foregoing sentence or (ii) changes in government visa or
immigration regulations or requirements beyond CTS's control, either of
which renders CTS unable to supply personnel without unreasonable
additional expense or regulatory compliance efforts.
10. WARRANTIES
a) CTS warrants and represents that the Services and Deliverables
provided or developed by CTS hereunder shall not infringe upon the
patents, patent applications, trade secrets, copyrights, trademarks or
other Proprietary Rights of CTS or any third party and that CUSTOMER
shall have full and unencumbered rights thereto.
b) CTS warrants that any Services provided shall be done in a workmanlike
manner by competent personnel, knowledgeable in the Services and
Deliverables thereunder. CTS will follow quality assurance plans and
standards based on IEEE standards and process certified by KPMG's ISO
9001 certification for CTS Total Quality Management.
c) CTS will supply a sufficient number of suitably qualified, trained and
experienced personnel to meet the requirements of the Project,
including the project deadlines.
d) In the event of breach of any warranty hereunder, CTS shall remedy
such breach at its own expense within a reasonable time after CUSTOMER
has given CTS written notice thereof.
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e) Notwithstanding any other provisions of this Agreement, (i) CTS shall
not be liable to CUSTOMER for any incidental or consequential damages,
including, without limitation, the loss of sales or revenues, loss of
goodwill, loss of business information or loss of profits, even if
advised of the possibility of such damages or loss, and (ii) CTS's
aggregate liability, if any, for any or all losses or injuries to
CUSTOMER arising out of or under any Work Schedulethis Agreement
shall not exceed the amount paid by CUSTOMER under such Work Schedule
this Agreement.
CTS MAKES NO OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR USE OR WARRANTIES OF UNINTERRUPTED OR ERROR-FREE
PERFORMANCE OF COMPUTER SYSTEMS, APPLICATIONS, SOFTWARE, HARDWARE OR EQUIPMENT.
11. ENTIRE AGREEMENT
By executing a Work Schedule with respect to a Project, CTS and CUSTOMER
acknowledge that there are no agreements or understandings written or oral,
between them with respect to the Project other than as set forth herein or
in the Work Schedules and that this Agreement and such Work Schedule
contain the entire agreement between CTS and CUSTOMER with respect to such
Project. Neither this Agreement nor any Work Schedule may be altered,
modified, terminated or discharged except by a writing signed by the party
against whom such alteration, modification, termination or discharge is
sought. In the event that CTS provides Services or Deliverables to CUSTOMER
without a Work Schedule being executed with respect thereto, CTS agrees
that all of the terms and conditions of this Agreement shall apply with
respect to the provision of such Services or Deliverables to the extent
that they are not in conflict with any other written agreement governing
the provision of such Services and Deliverables.
12. TERM; CANCELLATION OF A PROJECT; TERMINATION
a) The term of this Agreement shall continue indefinitely until
terminated as provided herein.
b) CUSTOMER may cancel a Project before completion at any time and for
any reason without incurring liability except as set forth below by
providing thirty (30) days' written notice to CTS. In the event that a
Project is canceled before its completion, CUSTOMER shall pay CTS for
its Services and Deliverables provided (whether or not complete) until
the date of cancellation plus any reasonable wind-down expenses
actually incurred by CTS within 30 days thereafter (including, without
limitation, any reasonable expenses incurred in reallocating employees
of CTS to other projects).
c) CUSTOMER may terminate this Agreement or any Work Schedule without
incurring liability in the event of a Default by or relating to CTS. A
Default will be deemed to have occurred if: (i) CTS fails to comply
with a material term of a Work Schedule, including failing to timely
deliver any of the Deliverables, or to complete the Project in
accordance with the Project schedule set forth in the Work Schedule,
(ii) CTS gives CUSTOMER notice to terminate or terminates the
Agreement or a Work Schedule, or ceases work on an ongoing Project,
before CTS completes work on a Project under a Work Schedule to
CUSTOMER's satisfaction, (iii) CTS fails, neglects or refuses to duly
observe or perform any other material obligation under the Agreement
or a Work
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Schedule in a timely manner and fails to cure such default within 20
days of receipt of a written notice of non-compliance, or (iv) CTS
becomes insolvent, generally fails to pay its debts as they come due,
enters into receivership or any arrangement or composition with
creditors generally, is the subject of a voluntary or involuntary
petition or other action or proceeding for bankruptcy or
reorganization or dissolution or winding-up, or makes an assignment
for the benefit of creditors. In addition to CUSTOMER's right of
termination in any such event, CUSTOMER shall have all other rights
provided under this Agreement or by law, including, without
limitation, those set forth in Sections 2(d) and 5(d) hereof.
13. NO WAIVER
No omission or delay by CTS or CUSTOMER at any time to enforce any right or
remedy reserved to it, or to require performance of any other terms,
covenants or provisions hereof or of a Work Schedule shall be a waiver of
any such right or remedy.
14. SURVIVAL OF OBLIGATIONS
All agreements, representations and warranties contained in this Agreement
and any Work Schedule attached hereto or in any document delivered pursuant
hereto or thereto shall be for the benefit of CTS or CUSTOMER, as the case
may be, and their respective successors and permitted assigns and shall
survive the termination of this Agreement and any Work Schedule.
15. NOTICES
All notices, requests, demands, waivers and other communications required
or permitted to be given hereunder or under any Work Schedule shall be
given in writing and shall not only be deemed received upon actual receipt
by CTS or CUSTOMER, as the case may be, and shall be sent to the person and
to the address or fax number for such party set forth below or to such
changed person, address or fax number as may be subsequently submitted by
written notice of either party. Telecopy and courier service are
permissible non-exclusive means of delivery.
16. SEVERABILITY
In the event any one or more of the provisions of this Agreement and/or any
Work Schedule shall for any reason be held invalid, illegal or
unenforceable, the remaining provisions of this Agreement and/or any such
Work Schedule shall be unimpaired, and the invalid, illegal or
unenforceable provision shall be replaced by a mutually acceptable valid,
legal and enforceable provision which comes closest to the intention of the
parties underlying the invalid, illegal or unenforceable provision.
17. AMENDMENTS
Any changes to this Agreement or any Work Schedule must be reviewed and
agreed upon in writing by both parties.
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18. GOVERNING LAW
This Agreement shall be construed in accordance with and governed for all
purposes by the laws of New York for all tasks to be performed entirely in
New York .
19. INSURANCE; COMPLIANCE WITH LAWS
a) CTS shall maintain, during the term of this Agreement, insurance
covering general liability, bodily injury, and property damage. CTS
shall provide written documentation to the CUSTOMER that indicates the
amounts of said insurance coverages maintained by CTS. In addition,
CTS shall maintain workers' compensation insurance as required by all
applicable laws.
b) The Services or Deliverables shall not be provided in violation of any
U.S. or foreign law, treaty, rule or regulation, and CTS shall have
obtained all permits, visas and other materials necessary to comply
with such laws, treaties, rules and regulations.
20. ARBITRATION
Any controversy or dispute arising out of or with respect to the Agreement
or the Services to be provided under it shall be decided solely by
arbitration held in New York, New York , in accordance with the commercial
arbitration rules of the American Arbitration Association and the laws of
the State of New York, provided the panel of arbitrators to be selected
shall all be persons engaged primarily in businesses associated with the
design, manufacture, sale and service of high-technology equipment and
systems. The arbitrators shall have all the powers of a New York Court;
their award may include, at their discretion, reasonable attorney's fees
and costs. Judgment upon award may be entered in any court having
jurisdiction.
21. ASSIGNMENT
This Agreement shall not be assignable by either party without prior
written consent of the other party, which shall not be unreasonably
withheld; provided, however, that CTS may assign its rights and obligations
under this Agreement to any entity controlling, controlled by, or under
common control with, CTS, provided that no such assignment shall relieve
CTS of its obligations hereunder, and CUSTOMER may assign its rights and
obligations under this Agreement to any entity controlling, controlled by,
or under common control with, CUSTOMER, provided that such entity agrees in
writing to assume CUSTOMER's obligations hereunder.
22. INDEPENDENT CONTRACTOR STATUS
CTS and the CUSTOMER agree and understand that CTS is performing under this
Agreement as an independent contractor for the CUSTOMER, and neither CTS
nor any of its employees, agents or subcontractors are employees or agents
or the CUSTOMER. Accordingly CTS, its employees, agents and subcontractors
have no authority to make any contract or presentation to create any
obligation or liability whatsoever on behalf of the CUSTOMER. Nothing
herein contained shall be construed as reserving to the CUSTOMER any right
to control CTS with respect to CTS's conduct in the performance of this
Agreement or the manner in which the Services herein are performed. CTS,
its employees,
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agents or subcontractors shall not be entitled to any benefits accorded to
CUSTOMER's employees, including, without limitation, workers' compensation,
disability insurance, vacation or sick pay.
23. INDEMNIFICATION
a) CTS shall indemnify and save harmless the CUSTOMER, its agents and
employees (individually a "CUSTOMER Indemnitee", and collectively
"CUSTOMER Indemnitees") from and against any and all loss, damage,
injury or liability to, or death of, any natural person, including any
employee, subcontractor, agent or invitee of CTS, as well as
attorneys' fees and expenses relating thereto, arising out of the
services performed by, or any other act of, CTS under this Agreement,
unless such loss, damage, injury, liability, death or claim is the
result of the negligence or willful misconduct of a CUSTOMER
Indemnitee. The CUSTOMER's right to indemnification shall be
independent of the CUSTOMER's rights with respect to insurance as
provided in this Agreement, except that any claim by CUSTOMER
hereunder shall be reduced by any recovery under such insurance.
b) CUSTOMER shall indemnify and save harmless CTS, its agents and
employees (individually a "CTS Indemnitee", and collectively "CTS
Indemnitees") from and against any and all loss, damage, injury or
liability to, or death of, any natural person, including any employee,
subcontractor, agent or invitee of CUSTOMER or CTS, as well as
attorneys' fees and expenses relating thereto, arising out of or
relating to the services performed under this Agreement or by reason
of CTS personnel's presence on CUSTOMER's premises, unless such loss,
damage, injury, liability, death or claim is the result of the
negligence or willful misconduct of a CTS Indemnitee.
24. PUBLICITY
CTS may refer to CUSTOMER as a customer reference in business dealings
(including written sales materials) with potential customers and financial
concerns, and CTS and its parent companies may refer to CUSTOMER as a
customer in public securities law or other government filings. At the
request of CTS, CUSTOMER and CTS will prepare a joint press release
announcing the execution and general subject matter of this Agreement,
provided that the financial terms of this Agreement shall not be disclosed.
Except as provided above, neither party will refer to or disclose the terms
of this Agreement to any third party or use the name of the other party in
any form of publicity or advertising, either directly or indirectly,
without the prior written consent of the other party.
SIGNATORIES
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THEIR DULY AUTHORIZED
REPRESENTATIVES TO SET THEIR HAND AS OF THE DATE FIRST ABOVE WRITTEN.
CUSTOMER CTS
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Signature : Signature :
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