Exhibit 10.14
MASTER SERVICES AGREEMENT
This Master Services Agreement by and between Lante Corporation ("Lante"),
a corporation registered in Delaware and located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Dell Products L.P., a Texas limited
partnership, ("Dell"), located at ▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ is
effective as of December 7, 1999 ("Effective Date"). This Master Services
Agreement and its SOWs and Exhibits, as so identified, shall be hereinafter
collectively referred to as the "Agreement."
1. INTRODUCTION
1.1 This Agreement sets forth the only terms and conditions under which Dell
Products L.P. and Dell Computer Corporation's ("DCC") subsidiaries and
affiliates (hereinafter collectively referred to as "Dell") shall purchase from
Lante the services set forth in the applicable Statement of Work (the "SOW" or
"Services"). The terms and conditions of this Agreement shall apply to all
Services purchased by Dell from Lante. For the purpose of this Agreement,
Services includes without limitation all incidental services and tasks necessary
to perform acceptable Services and provide acceptable deliverables (including
without limitation any software or other goods provided in connection with the
provisioning of Services) and/or documentation that accompany the deliverables
(hereinafter collectively referred to as the "Deliverables"). The terms and
conditions of this Agreement shall apply to all Dell Service requests or
purchase orders (the "Orders") issued by Dell for the purchase of Services.
1.2 The parties anticipate that the Services to be defined in mutually
agreeable SOWs may consist of performing services to execute specific e-services
projects. A non-binding goal for revenue opportunities to Lante shall be at
least ten percent (10%) of Dell's annual e-services consulting budget. Subject
to Section 9, the following minimum revenue shall be guaranteed by Dell to Lante
for the following years:
Year 1 $ 3,000,000
Year 2 $ 5,000,000
Year 3 $ 7,000,000
Year 4 $11,000,000
Year 5 $14,000,000
After Year 3, the parties shall meet to discuss Lante's performance in terms of
quality, pricing and competitive offerings relative to Dell's expectations.
The above guaranteed revenue amounts shall include Services performed under this
Agreement and/or services performed by Lante pursuant to Dell customer
referrals, if any, received by Lante directly from Dell, including where Dell is
directly involved in the closing of the customer agreement with Lante.
1.3 Lante shall establish an office in Austin, Texas within a reasonable time,
not to exceed ninety (90) days from the Effective Date.
1.4 Lante agrees that ▇▇▇▇ ▇▇▇▇▇▇▇, President and CEO, shall serve as executive
sponsor of Lante's relationship with Dell and devote an appropriate amount of
attention to successfully execute this relationship.
2. TERM
2.1 Unless sooner terminated hereunder, this Agreement shall continue for an
initial term of five (5) years, beginning on the Effective Date, and then will
be automatically renewed for additional successive one (1) year terms unless
Dell provides notice of expiration prior to the end of any term.
2.2 Completion of Work under any SOW or Order will not terminate this
Agreement.
3. TIMES OF PERFORMANCE
3.1 Lante will provide to Dell the Services according to the time and manner
specified in this Agreement, or applicable SOW as executed by both parties. The
purchase of Services will only be made and commenced upon issuance of an Order
referencing this Agreement, or any applicable SOW.
3.2 Lante shall perform the Services within the timeframes specified in the
applicable SOW. Upon Dell's request, Lante shall provide performance reports
within a reasonable time or as otherwise specified in an applicable SOW or
Order.
4. PAYMENT
4.1 Subject to Section 4.3, for performance of the Services, upon Acceptance
(as set forth below), Dell will pay the Price (or Fees) set forth in the
applicable SOW.
4.2 All payments shall be in United States dollars and are exclusive of
applicable sales taxes, but are inclusive of all other charges including any
applicable royalties, duties, and all other taxes. Dell shall pay Lante within
forty-five (45) days after the end of the month in which Dell receives a proper
invoice or, if a self-invoicing system is used, as specified in the SOW.
Master Service Agreement
Page 1
Dell will have no liability for any taxes based on Lante's net assets or income
or for which Dell has an appropriate resale or other exemption.
4.3 Unless otherwise set forth in a SOW, Lante shall invoice Dell only upon
Acceptance (as defined below) of the applicable Services. Further, Lante will
invoice within thirty (30) days after it has the right to invoice under the
terms of this Agreement. The invoice must be itemized and shall include without
limitation: (i) a reference to the applicable Order number and this Agreement;
and (ii) the relevant Services and times of performance. Proper original
invoices shall be mailed to the address below unless otherwise set forth in a
SOW:
Dell Products, L.P.
Accounts Payable
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4.4 Lante acknowledges and agrees that Dell has the right to withhold any
applicable taxes from any royalties or other payments due under this Agreement
if required by any government authority. Without limiting the foregoing, if Dell
Products L.P. is purchasing products/services from Lante on behalf of a
subsidiary or affiliate of Dell Computer Corporation, Lante acknowledges and
agrees that Dell Products L.P. may withhold from any royalties or payments due
for such products/services any applicable taxes incurred by Dell Products L.P.
that result from Dell Products L.P. providing such products/services to the
applicable Dell Computer Corporation subsidiary or affiliate.
4.5 All payments will be made in U.S. currency unless the parties agree
otherwise in a SOW.
4.6 Dell reserves the right to initiate a self-billing process in any
particular region and accordingly, at Dell's discretion, Dell shall run a
regular report (as set forth in the SOW) and Lante will be responsible for
checking this report and advising Dell of any discrepancies within a reasonable
timeframe.
4.7 Lante represents and agrees that it shall provide pricing for the Services
that is competitive in the marketplace, commensurate with the nature and size of
the Services provided under this Agreement.
5. ACCEPTANCE
5.1 In performance of the Services, Lante agrees to provide Dell with the
Deliverables set forth in the applicable SOW. These Deliverables shall meet the
criterion (the "Acceptance Criterion") set forth in the applicable SOW.
5.2 Dell will, in accordance with the applicable SOW, advise Lante of Dell's
acceptance or rejection. For Deliverables that are dependent on other
Deliverables or require integration with third-party components, Dell reserves a
final right to conduct acceptance testing after delivery and integration of all
interdependent Deliverables.
6. WARRANTY
6.1 Lante represents and warrants on an ongoing basis that:
(a) Services will: comply with the description of Services set forth in the
applicable SOW; comply with all of the other terms and conditions of this
Agreement; and be performed in good and workmanlike manner by a skilled and
qualified staff in accordance with highest industry standards;
(b) For any Deliverables provided in performance of the Services, subject to
Section 10.1, Dell will acquire good and marketable title to the Deliverables,
and that all Deliverables will be free and clear of all liens, claims,
encumbrances and other restrictions;
(c) All Deliverables delivered hereunder will be new (unless otherwise set forth
in a SOW); free from material defects in design, materials and workmanship, and
will conform to any Lante specifications including any specifications set forth
in an applicable SOW for a period as specified in the applicable SOW, or for one
(1) year from Acceptance of the Deliverable by Dell if not specified in the
applicable SOW. All material defects in design, materials and workmanship
discovered during the warranty period will be corrected by Lante in a timely
manner;
(d) It has all the rights and licenses in the Deliverables necessary to allow
Dell to use the Deliverables as provided for in this Agreement or applicable
SOW, without additional charge, except as set for in the applicable SOW;
(e) This Agreement (including without limitation the delivery of Deliverables
and performance of the Services) does not violate any applicable law (including
without limitation all applicable import or export regulations and all licensing
or permitting requirements) or breach any other Agreement to which Lante is a
party or bound;
(f) The Deliverables shall be able to accurately process date data (including,
but not limited to, calculating, comparing, and sequencing) between the
twentieth and twenty-first centuries (including, but not limited, the change
from December 31, 1999 to
Master Services Agreement
Page 2
January 1, 2000 and recognition of the Year 2000 as a leap year); and
(g) Lante's own internal business applications and processes (including
manufacturing, testing and inspection processes) shall be able to accurately
process date data as described in paragraph 6.1(f) above, and shall recognize
the Year 2000 as a leap year. Lante agrees to complete Dell's Year 2000 Business
Partner Readiness Assessment as requested by Dell; and, Lante further warrants
that the information contained therein shall be true and accurate on an ongoing
basis. Upon seven (7) days written notice by Dell, Lante agrees to provide
access to its facilities to Dell for the purpose of a Year 2000 readiness review
by Dell personnel and/or third parties retained by Dell for such purposes. All
such third parties shall sign Non-Disclosure Agreements and will comply with
Lante's reasonable security requirements.
7. INDEMNITY
7.1 LANTE AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS DELL PRODUCTS L.P.,
DCC, AND ANY OF DCC'S SUBSIDIARIES OR AFFILIATES, AND THEIR RESPECTIVE
DIRECTORS, OFFICERS,EMPLOYEES, REPRESENTATIVES, AND AGENTS (THE "INDEMNITEES")
FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS, ACTIONS, DEMANDS, LEGAL
PROCEEDINGS, LIABILITIES, DAMAGES, LOSSES, JUDGMENTS, AUTHORIZED SETTLEMENTS,
COSTS OR EXPENSES, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS' FEES, (THE
"DAMAGES") ARISING OUT OF OR IN CONNECTION WITH ANY ALLEGED OR ACTUAL:
(i) INFRINGEMENT BY LANTE AND/OR A DELIVERABLE(S) OF A COPYRIGHT, PATENT,
TRADEMARK, TRADE SECRET OR OTHER PROPRIETARY OR INTELLECTUAL PROPERTY RIGHT OF
ANY THIRD PARTY;
(ii) CLAIM THAT LANTE AND/OR GOODS AND DELIVERABLES PROVIDED UNDER THIS
AGREEMENT HAS CAUSED BODILY INJURY (INCLUDING DEATH) OR HAS DAMAGED REAL OR
TANGIBLE PERSONAL PROPERTY;
(ii) BREACH OF ANY OF LANTE'S WARRANTIES CONTAINED IN THIS AGREEMENT;
(iv) ANY VIOLATION BY LANTE OF ANY GOVERNMENTAL LAWS, RULES, ORDINANCES, OR
REGULATIONS; AND/OR,
(v) CLAIM BY OR ON BEHALF OF LANTE'S SUBCONTRACTORS, SUPPLIERS, EMPLOYEES OR
AGENTS.
7.2 LANTE WILL PROVIDE THE ABOVE INDEMNITY EVEN IF LOSSES ARE DUE, OR ALLEGED
TO BE DUE, IN PART TO ANY INDEMNITEE'S CONCURRENT NEGLIGENCE OR OTHER FAULT,
BREACH OF CONTRACT OR WARRANTY, VIOLATION OF THE TEXAS DECEPTIVE TRADE PRACTICES
ACT, OR STRICT LIABILITY WITHOUT REGARD TO FAULT; PROVIDED, HOWEVER, THAT
LANTE'S CONTRACTUAL OBLIGATION OF INDEMNIFICATION SHALL NOT EXTEND TO THE
PERCENTAGE OF THE THIRD PARTY CLAIMANT'S DAMAGES OR INJURIES OR THE SETTLEMENT
AMOUNT ATTRIBUTABLE TO THE INDEMNITEE'S NEGLIGENCE OR OTHER FAULT, BREACH OF
CONTRACT OR WARRANTY, OR BREACH OF THE TEXAS DECEPTIVE TRADE PRACTICES ACT, OR
TO STRICT LIABILITY IMPOSED UPON INDEMNITEE AS A MATTER OF LAW.
7.3 IN THE EVENT OF ANY SUCH CLAIMS, DELL SHALL: (1) PROMPTLY NOTIFY LANTE, (2)
AT LANTE'S EXPENSE, REASONABLY COOPERATE WITH LANTE IN THE DEFENSE THEREOF, AND
(3) NOT SETTLE ANY SUCH CLAIMS WITHOUT LANTE'S CONSENT WHICH LANTE AGREES NOT TO
UNREASONABLY WITHHOLD. LANTE SHALL KEEP DELL INFORMED AT ALL TIMES AS TO THE
STATUS OF LANTE'S EFFORTS AND CONSULT WITH DELL (OR DELL'S COUNSEL) CONCERNING
LANTE'S EFFORTS; AND, LANTE SHALL NOT SETTLE THE CLAIM WITHOUT DELL'S PRIOR
WRITTEN CONSENT, WHICH SHALL NOT BE UNREASONABLY WITHHELD.
7.4 IN ADDITION TO LANTE'S OBLIGATIONS AND LIABILITIES ABOVE, IF AN
INFRINGEMENT CLAIM IS MADE OR APPEARS LIKELY TO BE MADE ABOUT A DELIVERABLE,
LANTE SHALL, AT DELL'S OPTION, EITHER: PROCURE FOR DELL THE RIGHT TO CONTINUE TO
USE THE DELIVERABLE; MODIFY THE DELIVERABLE SO THAT IT IS NO LONGER INFRINGING;
OR REPLACE IT WITH A NON-INFRINGING DELIVERABLE. IF NONE OF THESE ALTERNATIVES
IS COMMERCIALLY REASONABLE, DELL SHALL RETURN OR DESTROY, AT LANTE'S OPTION, ANY
DELIVERABLES POSSESSED BY DELL FOR A REFUND OF THE PURCHASE PRICE FOR THE
SERVICES.
Master Services Agreement
Page 3
8. LIMITATION OF LIABILITY
8.1 LANTE WILL NOT BE LIABLE FOR DIRECT DAMAGES IN EXCESS OF AN AMOUNT EQUAL TO
THE GREATER OF $500,000 OR THE AGGREGATE OF ACTUAL FEES PAID UNDER THE AGREEMENT
DURING THE IMMEDIATELY PRECEDING SIX (6) MONTH PERIOD. DELL WILL NOT BE LIABLE
FOR DIRECT DAMAGES IN EXCESS OF AN AMOUNT EQUAL TO THE GREATER OF THE FEES THAT
ARE ACTUALLY DUE AND UNPAID BY DELL FOR SERVICES OR THE UNPAID MINIMUM
GUARANTEED REVENUE FOR YEARS 1 THROUGH 3 REFERRED TO IN SECTION 1.2. FURTHER,
NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, ORCONSEQUENTIAL
DAMAGES OF ANY TYPE, INCLUDING LOST PROFITS, OR LOST DATA, ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR THE SERVICES, EVEN IF A PARTY HAS BEEN ADVISED
BY THE OTHER PARTY OF THE POSSIBILITY OF THE DAMAGE AND EVEN IF A PARTY ASSERTS
OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN
THIS AGREEMENT.
8.2 Notwithstanding the foregoing, the limitation set forth in Paragraph 8.1
above shall not apply to:
(i) liability arising under Section 7 (Indemnification);
(ii) breach of terms set forth in Section 11.3 (Confidentiality); or
(iii) breach of terms set forth in Section 10 (Intellectual Property Rights).
9. TERMINATION
9.1 Unless expressly set forth in an applicable SOW, Dell may terminate for
convenience this Agreement, any SOW, Order, or portion of SOW or Order, or
Services performed under a SOW or Order at any time for any reason upon written
notice to Lante. Notwithstanding the foregoing, Dell may not terminate the
Agreement for convenience within the first three (3) years after the Effective
Date. If Dell terminates the Agreement pursuant to this Section, Dell shall be
responsible for the minimum revenue guarantees set forth in Section 1.2 for the
first three years and thereafter until the date of such termination, but shall
not be responsible for the remaining minimum revenue guarantees set forth in
Section 1.2 above.
9.2 Either party may terminate this Agreement, any SOW, Order, Services, or
portion of Services in the event the other party materially defaults in the
performance of any of its duties and obligations and the default is not cured
within forty-five (45) days after written notice is given to the defaulting
party. If Dell terminates the Agreement pursuant to this Section, Dell shall not
be responsible thereafter for the minimum revenue guarantees set forth in
Section 1.2 above.
9.3 Either party may immediately terminate this Agreement by giving written
notice to the other party if the other party is insolvent or has a petition
brought by or against it under the insolvency laws of anyjurisdiction; if the
other party makes an assignment for the benefit of creditors; if a receiver,
trustee or similar agent is appointed with respect to any property or business
of Dell. Further, Dell may terminate this Agreement if Lante becomes owned or
controlled by a competitor of Dell, as reasonably determined by Dell. If Dell
terminates the Agreement pursuant to this Section, Dell shall not be responsible
thereafter for the minimum revenue guarantees set forth in Section 1.2 above.
9.4 Upon termination or expiration of this Agreement, a SOW, an Order, or
portion of a SOW or Order, Lante will, in addition to any other obligations of
Lante on termination or expiration:
a) Cease all performance of the Services and furnish to Dell all Deliverables
and work in progress;
b) Return to Dell all copies of any confidential or proprietary information
(as discussed in Section 11 (Confidentiality)) of Dell, and cease all use of
these materials; and,
c) Within thirty (30) days, provide a full accounting and invoice itemizing
all Services performed, in accordance with this Agreement, related to the
Services for which Lante has not yet received payment. Dell shall pay such
invoice as set forth in Section 4 above.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Dell Work Product: Except for pre-existing intellectual property of Lante
(including Lante's Intellectual Property as defined in Section 10.2 below)
incorporated in or used in the performance of the Services or development of the
Deliverables, Lante agrees that the Deliverables produced under this Agreement
shall constitute the work product of Dell (the "Dell Work Product").
Additionally, other than Lante's Intellectual Property, Work Product shall
further include without limitation: all tools, data (including without
limitation specifications) and/or methods used to design, create, generate or
otherwise develop the Deliverables and/or perform the Services; and all patent,
copyright, trade secret or other
Master Services Agreement
Page 4
proprietary or intellectual property rights developed with respect to the
creation of Deliverables or performance of the Services.
10.2 Lante's Intellectual Property: To the extent that the Dell Work Product
requires for use pre-existing works (including tools, data and/or methods) owned
by or licensed to Lante (the "Licensed Materials"), Dell hereby acknowledges
Lante's ownership of the Licensed Materials; and Dell acknowledges that it does
not have any ownership interest in such Licensed Materials. Notwithstanding the
foregoing, with respect to the Licensed Materials, unless otherwise set forth in
a SOW, Lante hereby grants to Dell an irrevocable, non-exclusive, worldwide,
royalty-free license to: (i) use, execute, produce, display, perform, copy,
distribute (internally or externally) copies of, and prepare derivative works
based upon the Licensed Materials and their derivative works, and (ii) authorize
others to do any, some, or all of the foregoing.
10.3 All Dell Work Product is solely and exclusively the property of Dell. To
the extent any Dell Work Product qualifies as a "work made for hire" under
applicable copyright law, it will be considered a work made for hire and the
copyright will be owned solely and exclusively by Dell.
10.4 To the extent that any Dell Work Product is not considered a "work made for
hire" under applicable copyright law, Lante hereby assigns and transfers all of
its right, title and interest in and to the Dell Work Product to Dell.
Furthermore, Lante shall ensure that its employees, subcontractors,
representatives, agents or other contractors engaged to perform Services
hereunder comply with the terms of this Agreement particularly this Section 10.
10.5 Lante will, as part of the Dell Work Product, disclose promptly in writing
to Dell all of the Dell Work Product and document all intellectual property
rights as Dell personnel may direct. Furthermore, Lante shall, upon request,
provide to Dell any or all of the Dell Work Product.
10.6 The parties agree to take any action and fully cooperate with each other,
as requested to effect the provisions of this Section.
11. GENERAL
11.1 Disputes: Before initiating a lawsuit against the other relating to a
dispute or claim herein, the parties agree to work in good faith to resolve
between them all disputes and claims arising out of or relating to this
Agreement. To this end, either party may request that each party designate an
officer or other management employee with authority to bind the party to meet to
resolve the dispute or claim. During their discussions, each party will honor
the other's reasonable requests for non-privileged and relevant information.
This paragraph will not apply if: (i) the expiration of the statute of
limitations for a cause of action is imminent; or (ii) injunctive or other
equitable relief is necessary to mitigate damages.
11.2 Survival of Terms: Regardless of the circumstances of termination or
expiration of this Agreement or any SOW or portion thereof, the provisions of
Sections 6 ("Warranty"), Sections 7 ("Indemnification"), Sections 8 ("Limitation
of Liability"), Sections 10 ("Work Product") and Sections 11 ("General") will
survive the termination or expiration and continue according to their terms.
11.3 Confidentiality: Any confidential information that will be disclosed by
either party related to this Agreement shall be disclosed pursuant to the terms
and conditions of the 10/26/98 Non-disclosure Agreement (#98102619) between the
parties. Notwithstanding anything contrary in the terms of the applicable Non-
disclosure Agreement, any trade secrets or other proprietary information of
Dell, whether oral, visual or written, shall constitute confidential information
of Dell even if not marked as such. Further, Lante's obligation to preserve the
confidentiality of such trade secrets or proprietary information shall continue
in perpetuity. The terms and conditions of this Agreement shall be deemed to be
confidential information. Lante will not use the name of Dell nor any Dell
trademarks, trade names, service marks, or quote the opinion of any Dell
employee in any advertising, presentations or otherwise without first obtaining
the prior written consent of an officer of Dell.
11.4 Insurance: Lante will obtain and at all times during the term of this
Agreement maintain at its own expense, with insurance companies acceptable to
Dell, the minimum insurance coverages stated in Exhibit A to this Agreement.
Furthermore, Lante shall, within ten (10) days of the Effective Date of this
Agreement, provide Dell with Certificates of Insurance evidencing compliance
with this paragraph.
11.5 Compliance: Since Dell transacts business with the United States
government, Lante must comply with applicable laws and Federal Acquisition
Regulations ("FARs"). Lante, therefore, represents and warrants that it will
comply with the FARs, federal acts, and other governmental programs as set forth
in Exhibit B to this Agreement.
11.6 Records: Lante will maintain accurate and legible records in English during
the term of this
Master Services Agreement
Page 5
Agreement and, at a minimum, for five (5) years or that period prescribed by
Applicable Law or Regulation, thereafter and will grant to Dell reasonable
access to and copies of, any information reasonably requested by Dell with
respect to Lante's performance under this Agreement.
11.7 Remedies: Except as may be otherwise provided in this Agreement, the
rights or remedies of the parties hereunder are not exclusive, and either party
shall be entitled alternatively or cumulatively, subject to the other provisions
of this Agreement, to damages for breach, to an order requiring specific
performance, or to any other remedy available at law or in equity.
11.8 Independent Contractors: The parties are independent contractors and
neither party is an employee, agent, servant, representative, partner, or joint
venturer of the other. Neither party has the right or ability to bind the other
to any agreement with a third party or to incur any obligation or liability on
behalf of the other party without the other party's written consent. Lante will
be solely responsible for all materials and work until Acceptance by Dell, and
Dell will have no direction or control of Lante, or any person employed by or
contracted for by Lante, except in the results to be obtained.
11.9 Amendments; Waivers: No waiver of any term or condition is valid unless in
writing and signed by authorized representatives of both parties, and will be
limited to the specific situation for which it is given. No amendment or
modification to this Agreement shall be valid unless set forth in writing and
signed by authorized representatives of both parties. No other action or failure
to act (including inspection, failure to inspect, acceptance of late deliveries
of Deliverables, or acceptance of or payment for any Deliverables) will
constitute waiver of any rights.
11.10 GOVERNING LAW: THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCLUSIVE OF ANY PROVISIONS OF
THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS AND WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. LANTE HEREBY IRREVOCABLY SUBMITS TO
THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS OF THE STATE OF
TEXAS, U.S.A. AND HEREBY AGREES THAT ANY SUCH COURT SHALL BE A PROPER FORUM FOR
THE DETERMINATION OF ANY DISPUTE ARISING HEREUNDER.
11.11 Notices: Any notice or other communication (other than telephone
maintenance or support or requests for maintenance or support) required or
permitted by this Agreement shall be in writing in English delivered by
certified or registered mail, return receipt requested, postage prepaid and
addressed as follows or to such other addresses as may be designated by notice
from one party to the other, or as set forth in a SOW, all such notices being
effective on the date received or, if mailed as set above, three (3) days after
the date of mailing:
If to Dell:
Dell Products, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention:
cc: General Counsel
If to Lante:
Lante Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
cc: General Counsel
11.12 Severance: Whenever possible, each provision of this Agreement will be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement is found to violate a law, it will be
severed from the rest of the Agreement and ignored and a new provision deemed
added to this Agreement to accomplish to the extent possible, the intent of the
parties as evidenced by the provision so severed. The headings used in this
Agreement have no legal effect.
11.13 Non-Exclusive: Except as expressly provided in Section 1.2, nothing in
this Agreement shall require Dell to purchase from Lante any or all of its
requirements for services that are the same or similar to the Services provided
hereunder, and Dell may purchase similar or identical services from others.
Furthermore, Lante agrees to cooperate and work with Dell and any other
providers that Dell may engage in connection with the provision of Services.
11.14 Assignment: This Agreement may not be assigned by Lante in whole or in
part, even by operation of law, in a merger or stock or asset sale, without the
express written permission of Dell. Such consent shall not be unreasonably
withheld. Provided that Dell expressly permits the assignment or continues to do
business with the succeeding entity without providing its express permission,
the terms and conditions of this Agreement shall apply with respect to the
succeeding entity. Any attempted assignment
Master Services Agreement
Page 6
contrary to the preceding will be null and void.
11.15 Entire Agreement: This Agreement, its attached SOWs and Exhibits, as so
designated, set forth the entire agreement and understanding of the parties
relating to the subject matter contained herein, and merges all prior
discussions and agreements, both oral and written, between the parties. Each
party agrees that use of pre-printed forms, including, but not limited to email,
purchase orders, acknowledgments or invoices, is for convenience only and all
terms and conditions stated thereon, except as specifically set forth in this
Agreement, are void and of no effect. Unless otherwise expressly set forth in a
SOW, as so designated, in the event of conflict between this Master Services
Agreement and any SOW, the terms of this Master Services Agreement shall
prevail.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
written herein.
DELL PRODUCTS, L.P. LANTE CORPORATION
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Printed Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: CFO Title: President & CEO
Date: 12/7/99 Date: 12/8/99
Master Services Agreement
Page 7
EXHIBIT A
INSURANCE
PROVIDER will obtain and at all times during the term of this Agreement maintain
at its own expense, with insurance companies acceptable to DELL, the minimum
insurance coverages stated below.
(a) Statutory workers' compensation insurance in the state(s) or
jurisdiction(s) in which PROVIDER'S employees perform services for DELL, and
employer's liability insurance with limits of not less than $500,000: (i) for
each accident or occupational disease; and (ii) for each employee. The policy
will include an endorsement or certificate of coverage naming DELL as an
alternate employer, for the sole purpose of preventing PROVIDER'S workers'
compensation carrier from denying coverage based on a claim of employment
status, and include a waiver of subrogation in favor of DELL. PROVIDER waives
all claims and causes of action against DELL, its officers, directors, and
employees for any and all injuries compensable under PROVIDER'S workers'
compensation insurance coverage.
(b) Commercial general liability insurance with limits for bodily injury and
property damage liability of not less than $1,000,000 personal injury for each
occurrence, $2,000,000 general aggregate and products/completed operations
coverage which will include premises/operations liability, independent
contractors liability, and broad form contractual liability coverage
specifically in support of, but not limited to, the indemnity provisions stated
in this Agreement. Any endorsement to, certificate or evidence of coverage under
the policy will include a waiver of subrogation in favor of DELL; will be
endorsed to include DELL as additional insured; will contain cross-liability and
severability of interest coverage and will state that the insurance is the
primary insurance as regards any other insurance carried by DELL.
(c) If required business automobile liability insurance with a limit of not
less than $1,000,000 per occurrence for bodily injury and property damage
liability written to cover all owned, hired and non-owned automobiles arising
out of the use thereof by or on behalf of PROVIDER and its employees. Any
endorsement to, certificate or evidence of coverage under, this policy will
include a waiver of subrogation in favor of DELL, be endorsed to included DELL
as an additional insured and will state that this insurance is the primary
insurance as respects any insurance carried by DELL.
(d) PROVIDER will furnish to DELL insurance certificates, endorsements, or
evidence of coverage signed by authorized representatives of the companies
providing the coverage, required under the terms of this Agreement. All policies
providing coverage will contain provisions that no cancellation, non-renewal or
material changes in the policy will become effective, except on thirty (30) days
written notice thereof to DELL.
(e) Upon request and without expense, PROVIDER will furnish DELL with certified
copies of these insurance policies.
(f) Failure to secure the insurance coverage or the failure to comply fully
with any of the insurance provisions of this Agreement as may be necessary to
carry out the terms and provisions of this Agreement will be deemed to be a
material breach of this Agreement. The provision of insurance coverage hereunder
or the lack thereof, does not in any way reduce or limit PROVIDER'S
responsibility/liability under this Agreement including, without limitation, its
indemnification obligations. Any and all deductibles in the above described
insurance policies will be assumed by, for the account of, and at the sole risk
of PROVIDER. DELL reserves the right to request reasonable adjustments to the
requirements or to request other types of policies to support the level of
Services being performed by PROVIDER. PROVIDER shall not unreasonably refuse to
make such adjustments.
Master Services Agreement
Page 8
