EXHIBIT 10.2.8
Agreement Number: NES 99-1
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 000 Xxxxxxxx
Xxxxxx, Xxx Xxxxxxxxx, XX 00000, XXX (Phone: 000-000-0000; Fax: 000.000.0000)
("Linuxcare") and the "Customer" listed below.
Customer: NEC Software Ltd. Contact: Atsuo Suzuki
Address: 1-18-6 Shinkiba Koutou-Ku Phone: x00-0-0000-0000
Xxxxx 000-0000, Xxxxx Fax: x00-0-0000-0000
E-Mail: xxxxxx@x0.xxx.xxx.xxx.xx.xx
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
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liability limitations. Any different or additional terms of any related purchase
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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/ Xxxxxx X. Xxxxxx
Name: YOSHINARI FURUMICHI Name: Xxxxxx X. Xxxxxx
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Title: GENERAL MANAGER Title: Director of Asia Pacific Operations
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[*]= 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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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11. Governing Law and Jurisdiction. This Agreement which is in English, shall
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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
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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/ Xxxxxx X. Xxxxxx
Name: YOSHINARI FURUMICHI Name: Xxxxxx X. Xxxxxx
Title: GENERAL MANAGER Title: Director of Asia Pacific Operations
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EXHIBIT B
STATEMENT OF WORK
CONTROL
Document ID NES_SOW
Location /Documents/Linuxcare/NEC/NES/NES_SOW.doc
Originator Xxx Xxxxxx
Issue Date 9/21/1999
Status Approved
Version 1.0
DISTRIBUTION
Linuxcare Xxx Xxxxxx, Xxx Xxxxxx
NES Atsuo Suzuki
VERSION MODIFIED BY DATE DESCRIPTION
0.1 Xxx Xxxxxx 08/23/99 Draft Proposal
0.2 Xxx Xxxxxx 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 Xxx Xxxxxx 9/21/99 Revised incident cap to
proposed by Suzuki-san of
lower price further as NEC.
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TABLE OF CONTENTS
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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
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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.
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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.
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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.
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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 (xxxx://xxx.xxxxxxxxx.xxx). NES rights with respect to such
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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 (xxxx://xxx.xxxxxxxxx.xxx). These
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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 (xxxx://xxx.xxxxxxxxx.xxx). This access is
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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.
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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/ Xxxxxx X. Xxxxxx
Name: YOSHINARI FURUMICHI Name: Xxxxxx X. Xxxxxx
Title: GENERAL MANAGER Title: Director of Asia Pacific Operations
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