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EXHIBIT 10.26
PORTIONS OF THIS EXHIBIT MARKED WITH AN "*" HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT.
MICROSOFT IRELAND OPERATIONS LIMITED
MANUFACTURING AGREEMENT
THIS MICROSOFT IRELAND OPERATIONS LIMITED MANUFACTURING AGREEMENT (the
"Agreement") is made and entered into as of February 1, 1999 (the "Effective
Date"), by and between MICROSOFT IRELAND OPERATIONS LIMITED, a limited liability
company incorporated in Ireland with registered number 256796 and whose
principle place of business is at Xxxxxxxxxx Xxxx, Xxxxxxxxx Xxxxxxxxxx Xxxxxx,
Xxxxxx 00, Xxxxxxx ("MICROSOFT") and STARTEK EUROPE. ("StarTek").
RECITALS
WHEREAS, MICROSOFT and StarTek intend to create a formal relationship
by which StarTek shall provide certain manufacturing services with respect to
orders for Microsoft software products.
WHEREAS, the parties intend in this Agreement to set forth specific
terms and conditions governing the performance of certain manufacturing services
by StarTek for MICROSOFT; and
NOW, THEREFORE, in consideration of the covenants and conditions set
forth below, the adequacy of which is agreed to and hereby acknowledged, the
parties agree as follows:
AGREEMENT
1. DEFINITIONS.
The following terms, whenever initially capitalized, shall have the following
meanings for the purposes of this Agreement:
(a) "BOM" shall mean the xxxx of materials document provided by
MICROSOFT to StarTek, which xxxx of materials identifies all components
comprising a given Product or Product Component. BOMs may be modified in writing
prospectively from time to time by MICROSOFT at its sole discretion.
(b) "CUSTOMERS" shall mean customers designated by MICROSOFT, including
MICROSOFT internal customers and distribution vendors, to whom MICROSOFT
authorizes StarTek to deliver Product pursuant to the terms and conditions of
this Agreement and the Statement of Work.
(c) "DELIVERABLES" shall mean and include all code material, source
material, software masters or replicative material or other such documented
material, of any kind or description and in any form including compact disk,
other disks or diskettes, tape, text or any electronic or other medium supplied
by MICROSOFT or at its direction. It does not include such materials if held
under an independent contractual relationship with an OEM (original equipment
manufacturer) which contract contains the requisite license. Nor does it include
Products acquired for office purposes and used by StarTek in its offices.
(d) "FACILITY" shall mean the manufacturing facility operated, owned,
subcontracted or leased by StarTek at *.
(e) "FINISHED PRODUCT UNIT" shall mean fully packaged Microsoft
Product, which includes all requisite Product Components and Microsoft software,
ready for delivery to a Customer.
(f) "INSOLVENT" shall mean a financial condition such as to make the
sum of a party's debts greater than all of the party's assets, at fair
valuation; or, when a party has incurred debts beyond that party's ability to
pay
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such debts as they mature; or, when a party is engaged in a business or
transaction for which the party has unreasonably small capital.
(g) "INTELLECTUAL PROPERTY" shall mean any and all trademarks,
copyrights, patents and other proprietary rights comprising or encompassing a
given Product.
(h) "INVENTORY" includes Finished Product Units, work in process,
Product Components or raw materials pertaining to the Products that contain
Microsoft software, trademarks, copyrighted material, logos or other proprietary
materials.
(i) "MANUFACTURE" OR "MANUFACTURING" shall mean the manufacture and
supply of Product Components and assembly of Products as described in the
Statement of Work.
(j) "PRODUCTS LIST" shall mean a list provided to StarTek by Microsoft
from time to time that will list the Products to be manufactured by StarTek
pursuant to the terms of this Agreement.
(k) "MICROSOFT AUTHORISED REPLICATOR" shall mean an authorised
replicator of the Products, Products Components and associated Product material
components (including without limitation, Microsoft registration card, Microsoft
certificate of authenticity, a Microsoft end user license agreement, Microsoft
manuals, cartons, labels, software distribution media etc.), with whom MICROSOFT
has entered into a replication agreement (a "MICROSOFT Replication Agreement")
(which Agreement is still subsisting), as notified to StarTek by MICROSOFT from
time to time and who carries out replication services for and on behalf of
StarTek pursuant to a written agreement between StarTek and such authorised
replicator.
(l) "PRODUCT(S)" shall mean the copyrighted and/or patented Microsoft
software products, including Product Components, Microsoft software, and any
associated documentation, packaging and other written materials, including,
where applicable, the specified user documentation, which MICROSOFT may request
StarTek to Manufacture pursuant to this Agreement, by the issuance of a purchase
order.
(m) "PRODUCT COMPONENTS" shall mean each individual component listed on
a BOM as comprising a Product, such as, for example, disks, polyvinyl disk
baggies, documentation, boxes, retail package shrink wrap, or retail bar-code
labels.
(n) "SERVICES" shall mean the manufacturing services to be performed by
StarTek under this Agreement and any Statement of Work.
(o) "STATEMENT OF WORK" shall mean the attached Exhibit A, including
any modifications made thereto pursuant to Section 15(b).
(p) "TERRITORY" shall mean the European Community.
2. MANUFACTURING AND SERVICES.
(1) GENERAL. StarTek hereby agrees to Manufacture Products on
the Products List at the Facility pursuant to the terms and conditions set forth
in this Agreement, including without limitation, the Statement of Work. StarTek
shall not conduct Manufacturing at or from any location other than the Facility
without MICROSOFT's prior written approval. In the event of any conflict between
the terms contained in this Agreement and terms contained in the Statement of
Work, the terms contained in this Agreement shall control.
(2) OTHER MANUFACTURING/SERVICES. In addition to Manufacturing
services, the parties may identify other manufacturing and/or services to be
provided under this Agreement through an addendum signed by the parties hereto.
(3) INVENTORY. All of the Inventory shall at all times be held
exclusively for assembly and delivery to Customers within the Territory as
authorized by MICROSOFT (or as otherwise authorized by
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MICROSOFT in writing) and for no other purpose, use or disposition, except as
may be directed in writing by MICROSOFT. StarTek shall at all times cause the
Inventory to be free and clear of any and all liens, encumbrances and other
claims of its creditors. StarTek grants MICROSOFT the option, assignable to any
affiliated corporation, to acquire by purchase all of the Inventory (less
Finished Product Units which have already been purchased by MICROSOFT) upon *
notice, and payment as would apply for unused Inventory in the case of
termination as stated in Section 12, at the price set forth at in Exhibit B. At
any time, upon MICROSOFT's request, StarTek shall take all necessary steps and
shall execute such documents as may be necessary or advisable under the local
law where the Inventory is located, in order to effect the sale of such
Inventory to MICROSOFT and to document MICROSOFT's title to Inventory owned by
MICROSOFT. Use of Intellectual Property in any manner by StarTek after
expiration or termination of this Agreement for any reason, whether or not
incorporated in Inventory, shall be deemed to be in violation of MICROSOFT's
Intellectual Property rights and shall entitle MICROSOFT to have all remedies
provided by law or equity (including injunctive relief); provided, however, (i)
this does not preclude StarTek from continuing to use in its offices Microsoft
Products legally acquired for that purpose; and (ii) it does not preclude
StarTek's performance of independent contractual relationships with MICROSOFT or
an OEM (original equipment manufacturer) or other party, which contract contains
the requisite Microsoft product replication license.
(4) AGREEMENT NOT TO SELL. StarTek acknowledges that, under
the terms of this Agreement, that both during and after the term of this
Agreement it has no rights within the licenses pertaining to software or other
Microsoft proprietary materials or Products which would allow StarTek to be a
seller or distributor of any Products. Whenever requested by MICROSOFT and from
time to time, it will sign separate mutually acceptable agreements to this
effect.
(5) SAFE STORAGE *. StarTek agrees not to store any other
goods near or in such relation to the Products or Product Components as to cause
injury to those Products or Product Components through contamination by strong
odors, leakage, or otherwise. *
(6) NON-EXCLUSIVITY. StarTek's engagement under this Agreement
is not exclusive as to any type of service, Product, customer or prospective
customer or any geographic area. StarTek acknowledges and agrees that MICROSOFT
makes no representation or commitment that the scope of level of services or
other terms and conditions for any one turnkey manufacturer will be the same as
or similar to any of them for any other MICROSOFT turnkey manufacturer in any
respect and that StarTek is entering into this Agreement without any expectation
of any such similar or same treatment. StarTek further acknowledges that
MICROSOFT reserves to itself the right to manufacture Products and/or Product
Components. In the event that MICROSOFT manufactures Products and/or Product
Components which StarTek is authorised or required to manufacture pursuant to
this Agreement and any Statement of Work then StarTek, if so required by
MICROSOFT shall purchase from MICROSOFT such part of its requirements of such
Products and/or Product Components as is notified to StarTek by MICROSOFT. In
such case, the terms applicable to the supply by MICROSOFT of such Products
and/or Product Components, including any amendments to the terms of this
Agreement, shall be documented in a separate agreement between MICROSOFT and
StarTek.
(7) COMBINING SERVICES. In the event that MICROSOFT at any
time wishes to combine or centralise, through one or more MICROSOFT turnkey
manufacturers or MICROSOFT, any services previously carried out by all or any
other MICROSOFT turnkey manufacturers, including StarTek, StarTek shall provide
all reasonable assistance and cooperation to MICROSOFT for the orderly and
timely combination or centralisation of such services through such MICROSOFT
turnkey manufacturers or MICROSOFT.
(8) FINANCIAL INFORMATION. Within * after StarTek learns that
it has become or will become Insolvent, StarTek shall submit financial
statements to MICROSOFT in sufficient detail to allow MICROSOFT to determine
whether StarTek shall be capable of continuing to perform its obligations
hereunder. The financial statements shall include, but shall not be limited to,
balance sheets and related statements of income and retained earnings and
statements of changes in financial condition. To the extent those statements are
audited, the audit report of the certified public accountant performing the
audit shall also be made available to MICROSOFT.
(9) RETURN OF DELIVERABLES. StarTek will have possession of
Deliverables and replicable material for certain Products and other property for
purposes of the replication to be done under this Agreement. Upon termination of
this Agreement and at any early time whenever requested by MICROSOFT to do so,
StarTek
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shall immediately deliver, at MICROSOFT's cost, to MICROSOFT all of such
Deliverables (provided that in no event shall such a request by MICROSOFT for
StarTek's return of the Deliverables prejudice StarTek's right to full
performance by MICROSOFT under this Agreement), replicable materials and all and
any other Microsoft proprietary materials ever received by it and it shall not
retain any copy or original of the same in any way whatsoever.
(10) QUALITY REQUIREMENTS. StarTek shall ensure that in
performing its obligations under this Agreement, it shall operate in accordance
with the quality guidelines as posted on Microsoft's Website, which can be found
at * (the "Microsoft Website") and as set forth in the Statement of Work.
(11) PRODUCTION. StarTek covenants and agrees to meet
MICROSOFT's demands for Product related to the Territory, as such demands may be
adjusted from time to time. Additional measurement procedures may be implemented
as mutually agreed upon by MICROSOFT and StarTek.
(12) NON-CONFORMING PRODUCT. StarTek shall promptly replace
and deliver, within * from notification, at no charge to MICROSOFT or its
Customers, any non-conforming Product if any delivery of Product, or any portion
of it, to any Customer fails to meet the quality standards specified in the
Statement of Work. In the event MICROSOFT determines that a Product recall is
necessary due to a breach of StarTek's warranties hereunder, or due to a
manufacturing defect, StarTek shall cooperate with MICROSOFT in all respects to
conduct such recall at StarTek's expense; provided that if StarTek has given
prior notice of the possible defect and recommended against delivery and the
Product is nonetheless delivered at MICROSOFT's direction, or if the recall is
necessary because of a MICROSOFT error, the recall on account of that defect
shall be at MICROSOFT's expense, but StarTek shall still cooperate with it, and
in such a case, MICROSOFT shall reimburse StarTek for the costs of Manufacturing
the replacement Products.
3. PRICE AND PAYMENT.
(1) GENERAL. MICROSOFT and StarTek agree that StarTek shall be
compensated for the Manufacturing services pursuant to the Price and Payment
terms and conditions set forth in Exhibit B. MICROSOFT shall be liable for
payment to StarTek for raw materials and Finished Product Units that have been
purchased and/or built in support of the weekly purchase order(s) issued by
MICROSOFT. StarTek will use all reasonable efforts to provide competitive
pricing to MICROSOFT within the region. All payments due by MICROSOFT to StarTek
under this Agreement shall be * from MICROSOFT's receipt of an invoice from
StarTek.
(2) QUANTITY. The quantity of Product to be used in
calculating MICROSOFT's obligation to pay StarTek with regard to any particular
purchase order shall be the lesser of (1) the number of Finished Product Units
delivered to a Customer in response to such purchase order, or (2) the quantity
indicated on the original purchase order.
(3) COST CONTAINMENT. The parties agree that they will, in
good faith, strive to contain and reduce Manufacturing costs where reasonable
and without compromising Product quality standards.
(4) TAXES. In the event income taxes are required to be
withheld by MICROSOFT on payments to StarTek required hereunder, MICROSOFT
agrees to provide StarTek with reasonable notice in advance of the first such
withholding, and MICROSOFT may deduct such income taxes from the amounts owed
and timely pay such taxes, when required, to the appropriate taxing authority.
MICROSOFT shall in turn promptly secure and deliver to StarTek an official
receipt for any income taxes withheld. MICROSOFT agrees to pay all applicable
goods and services or other applicable consumption taxes (other than income
taxes) levied on it by a duly constituted and authorized taxing authority on the
Manufacturing services. To the extent required by any such taxing authority,
StarTek may collect such taxes, if any, from MICROSOFT, and, in such case, shall
remit to MICROSOFT official tax receipts indicating that such taxes have been
collected by StarTek and remitted to the appropriate tax authorities, to the
extent such receipts are available, and StarTek shall show such taxes as
separate line items on invoices to MICROSOFT. StarTek agrees to take such steps
as are reasonably requested by MICROSOFT to minimize such taxes in accordance
with all relevant laws and to cooperate with and assist MICROSOFT, in
challenging the validity of any taxes applicable to the Manufacturing services
and collected from MICROSOFT by StarTek or otherwise paid by MICROSOFT. Except
as required by law or where expressly agreed
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to, in writing, by MICROSOFT pursuant to Exhibit B, MICROSOFT shall not pay any
taxes other than those described above, including, without limitation (1) taxes
on or with respect to or measured by any net or gross income or receipts of
StarTek, (2) any franchise taxes, taxes on doing business, gross receipts taxes
or capital stock taxes (including any minimum taxes and taxes measured by any
item of tax preference), (3) any taxes imposed or assessed for work performed
without the written authorization by MICROSOFT after the date upon which this
Agreement is terminated, (4) taxes based upon or imposed with reference to
StarTek's real and personal property ownership, (5) taxes incurred by StarTek on
all goods and services purchased from other related or unrelated parties, and/or
(6) any taxes similar to or in the nature of those taxes described in (1), (2),
(3), (4) or (5) above. StarTek agrees to make available to MICROSOFT any and all
records necessary to comply with any and all tax obligations as provided herein,
including but not limited to reports necessary for goods and services tax
compliance and audit purposes. The contents and form of such reports shall be
mutually agreed to between the parties.
(5) CURRENCY FOR INVOICING AND PAYMENT. StarTek shall invoice
MICROSOFT for the Prices in *. All payments made by MICROSOFT to StarTek for
Products delivered hereunder shall be in *. In computing the monthly payment due
for Manufacturing services and in rendering invoices. * will be adjusted monthly
based on *.
4. INTELLECTUAL PROPERTY RIGHTS, ETC.
(A) IMAGE AND IPRS. StarTek shall perform its obligations
hereunder and conduct its business arising herefrom so as to protect and
safeguard the image of MICROSOFT and the intellectual property rights owned by
MICROSOFT and Microsoft Corporation and any of its or their affiliates and/or
any of its or their licensors.
(B) Where, in connection with the provision of Services,
StarTek has to develop a new IT system or, StarTek has to modify its existing IT
system(s) so as to facilitate and accommodate such Services, such development
and modification shall be done pursuant to a "Technical Design Document" which
shall be prepared by StarTek on the basis of a MICROSOFT "Requirements
Document". The "Technical Design Document" shall be subject to the approval of
MICROSOFT prior to use. Ownership of the MICROSOFT "Requirements Document",
shall vest in MICROSOFT and shall comprise "MICROSOFT Confidential Information"
within the meaning of Section 9 and shall be treated accordingly. Ownership of
the "Technical Design Document" and any software written by StarTek to implement
same shall vest in StarTek and each shall comprise "StarTek Confidential
Information" within the meaning of Section 9 and shall be treated accordingly.
(C) Where, as part of the Services, StarTek has to create
and use a database, MICROSOFT shall own all data which is entered on such
database by StarTek during the provision of the Services, but StarTek shall own
all intellectual property rights otherwise subsisting in such created database.
At its own expense, StarTek shall at the request at any time of MICROSOFT,
whether before or after the termination of this Agreement or any Statement Of
Work, furnish MICROSOFT forthwith with the data entered on such database in such
format as MICROSOFT may specify to enable MICROSOFT to take data entered on the
database and load it onto another database and StarTek shall cooperate fully
with MICROSOFT in having such data loaded on such other database.
(D) RESTRICTED USE OF TRADEMARKS, LOGOS AND TRADENAMES.
StarTek shall not use the name "Microsoft" or any other trademark or tradename
or logo of MICROSOFT or Microsoft Corporation or any of its or their affiliates
and/or any of its or their licensors otherwise than in connection with the
Services and in accordance with this Agreement. StarTek is not entitled either
by implication or otherwise to any title, right or interest in the trademarks,
tradenames, logos or symbols of MICROSOFT, Microsoft Corporation or any of its
or their affiliates or any of its or their licensors. StarTek agrees not to form
a company, commercial organisation, firm or legal entity with a name
incorporating as part of its name the word "Microsoft" or any similar word and
not to apply for any registration of the word "Microsoft" or any similar word as
a trademark.
(E) PERMITTED USE OF TRADEMARKS, LOGOS AND TRADENAMES.
StarTek is granted permission to use, during the term of this Agreement, the
trademarks, logos and tradenames and Microsoft * of MICROSOFT or Microsoft
Corporation for the sole purposes of the Services and in accordance with this
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Agreement. StarTek agrees to comply with all guidelines for the use of
"Microsoft" trademarks, logos, tradenames and Microsoft * prescribed by
MICROSOFT from time to time, and in particular but without limitation agrees to
use the Microsoft *, trademarks, tradenames, logos and symbols of MICROSOFT, or
Microsoft Corporation in all media and materials relating to the services
together with an acknowledgement of ownership of relevant trademarks by
MICROSOFT or Microsoft Corporation (as appropriate). The appropriate trademark
symbol (either "TM" or "R" in a superscript following the product name) shall be
used whenever the name of a Microsoft Product is first mentioned in any
advertisement, brochure or other material circulated or displayed by StarTek.
(F) PROTECTION OF TRADEMARKS, LOGOS AND TRADENAMES.
StarTek agrees to report to MICROSOFT as soon as possible after it comes to
StarTek's notice, any suspected infringement of Microsoft certificates of
authenticity, the "Microsoft" tradename or any tradenames, trademark, logo or
symbol owned by MICROSOFT or Microsoft Corporation and any of its or their
affiliates and/or any of its or their licensors.
(G) RESERVATION OF RIGHTS. Except as expressly granted by
and in accordance with this Agreement, StarTek is granted no rights in relation
to copyright or other rights of whatever nature subsisting in any Microsoft
Product. All rights not expressly granted are expressly reserved by MICROSOFT.
(H) LIMITED LICENCE, REVERSE ENGINEERING, ETC. Any
software, source code, Microsoft *, Microsoft * labels, replicating kits, CD
masters, CD stampers, CD serialisation files and labels, all software media on
disk, CD-R masters, CD-ROM masters, glass masters, electronic files, film
masters, electronic and physical artwork files, PID files and labels, disk
masters, label masters, label art, labels, user guide masters, packaging masters
or other masters made available by MICROSOFT or Microsoft Corporation or any of
its or their affiliates to StarTek and the intellectual property rights therein
or relating thereto are and remain the property of MICROSOFT. StarTek is given a
revocable non-exclusive limited licence to use the same solely for the purposes
of performing the Services. StarTek shall not reverse engineer, decompile or
disassemble any Microsoft Product except as expressly permitted herein or by
law.
(I) NO DISTRIBUTION OF COUNTERFEITS. StarTek agrees it
will not engage in the manufacture or use of counterfeit, pirated or illegal
software; it will not knowingly engage in the distribution or supply or transfer
of counterfeit, pirated or illegal software; and it will not knowingly supply
any Microsoft Product to any dealer who engages in the use, manufacture,
distribution or other supply or transfer of counterfeit, pirated or illegal
software.
(J) ANTI-PIRACY EFFORTS. StarTek agrees to reasonably
co-operate with MICROSOFT in the investigation of counterfeit, pirated or
illegal software.
(K) PROTECTION OF MICROSOFT COPYRIGHTS. StarTek agrees to
report to MICROSOFT as soon as possible after it comes to StarTek's notice, any
suspected counterfeiting, piracy or other infringement of copyright in computer
programs, manuals, marketing materials, Microsoft certificates of authenticity
or other copyrighted materials owned by MICROSOFT, Microsoft Corporation and any
of its or their affiliates and/or any of its or their licensors.
5. SUB-CONTRACTING.
(1) TO THIRD PARTIES. StarTek shall not subcontract any of its
rights or obligations under this Agreement, with respect to the Services, except
as follows:
(i) StarTek may only sub-contract the Services to
such third parties as MICROSOFT shall first approve in writing on the basis that
such sub-contractor must upon request by MICROSOFT, agree in writing to
undertake the same obligations and/or abide by the same restrictions to which
StarTek is subject under Sections 4 (IPR), 7 (Year 2000 Compliance), 9
(Confidentiality), 10 (Title), Exhibit C (Insurance and Risk of Loss) and 13
(Record Keeping; Record Review). If such sub-contracting relates to the purchase
of Product Components, then StarTek may only sub-contract with a MICROSOFT
Authorised Replicator;
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(ii) Neither MICROSOFT, Microsoft Corporation nor
any of its and/or their affiliates and its and/or their licensors shall have any
liability to StarTek or otherwise in the event of the alteration or termination
of any such relationship between the independent third parties concerned.
StarTek shall indemnify MICROSOFT, Microsoft Corporation and any of its and/or
their affiliates and its and/or their licensors against any claim, cost,
liability, damages, expenses or proceedings brought against or incurred by
MICROSOFT arising out of the alteration or termination of any such relationship
to which StarTek is a party;
(iii) In the event that StarTek has entered into a
sub-contract pursuant to Section 5(a) and Section 16(a), StarTek shall
immediately notify MICROSOFT of the termination or expiration for whatever
reason of such sub-contract, and shall at StarTek's expense recover and
repossess any stocks of Products, Product Components and other MICROSOFT
materials and goods including without limitation all replication lists and all
CD masters, CD stampers, CD serialisation files and labels, all software on
disk, CD-R masters, CD-ROM masters, glass masters, electronic files, film
masters, electronic and physical artwork files, PID files and labels, disk
masters, label masters, label art, labels, user guide masters, packaging masters
or other masters, Microsoft certificates of authenticity, Microsoft certificate
of authenticity labels, raw disks and source code in the possession or control
of such sub-contractor.
(iv) In the event that MICROSOFT notifies StarTek of
the termination or expiration for whatever reason of a MICROSOFT Replication
Agreement, StarTek shall immediately cease to sub-contract in respect of the
Services with the MICROSOFT Authorised Replicator in respect of which the
MICROSOFT Replication Agreement has been terminated or has expired; and StarTek
shall recover and repossess any stocks of Products, Product Components and other
MICROSOFT materials and goods including without limitation all replication lists
and all CD masters, CD stampers, CD serialisation files and labels, all software
on disk, CD-R masters, CD-ROM masters, glass masters, electronic files, film
masters, electronic and physical artwork files, PID files and labels, disk
masters, label masters, label art, labels, user guide masters, packaging masters
or other masters, Microsoft *, Microsoft * labels, raw disks and source code in
the possession or control of such MICROSOFT Authorised Replicator
(v) StarTek guarantees its subcontractor's
fulfillment of the applicable obligations imposed on StarTek by this Agreement;
(vi) StarTek shall indemnify, defend and hold
MICROSOFT harmless for all damages and/or costs of any kind, including without
limitation, those incurred by MICROSOFT and caused by a subcontractor and/or
subcontractor's failure to fulfill the applicable obligations imposed on StarTek
by this Agreement, including, but not limited to, StarTek's payment of any
monetary judgments awarded to MICROSOFT by a court of competent jurisdiction and
any costs and fees relating thereto, not paid by subcontractor, resulting from
subcontractor's unauthorized replication and/or distribution of Product(s); and
(vii) Upon execution of this Agreement and
thereafter prior to a subcontractor performing any Services under this
Agreement, StarTek shall provide MICROSOFT with a written certification, signed
by a StarTek officer, representing and warranting that StarTek is in compliance
with the provisions of Section 6 of this Agreement; and
(viii) MICROSOFT, in its reasonable discretion, will
provide an approved CD and * supplier list as seen in Exhibit F which may be
updated by MICROSOFT from time to time. If a supplier used by StarTek as a
subcontractor is removed from such list by MICROSOFT, MICROSOFT acknowledges
that StarTek may not be able to immediately discontinue use of subcontractor. In
such case, subject to other rights and obligations of enforcement as set forth
in the Agreement, MICROSOFT and StarTek will mutually agree to a transition
plan.
(2) RIGHTS PASS THROUGH. It is the intention of this section
that StarTek be able to subcontract, provided StarTek fully maintains quality
standards and protects MICROSOFT's property rights in MICROSOFT's Intellectual
Property and Deliverables such that, in addition to MICROSOFT's recourse to
StarTek under this Agreement, MICROSOFT shall also have rights enforceable
directly against the subcontractor. The
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responsibility and liability of StarTek under this Agreement is not diminished
on account of any subcontract and StarTek shall be fully responsible for the
subcontractor's performance and work.
(3) EXPORT RESTRICTIONS. StarTek hereby agrees that in
subcontracting portions of the Services to third parties pursuant to Section
5(a) or (b) above, StarTek shall not, directly or indirectly, export or transmit
(i) any Product Component, Product and/or technical data or (ii) any Product (or
any part thereof), process, or service that is the direct product of a Product,
to (a) any countries that are subject to U.S. export restrictions (including as
of the Effective Date, but not limited to, the Federal Republic of Yugoslavia
(Serbia and Montenegro), Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria);
(b) any end-user whom StarTek knows or has reason to know will utilize such
Product Component, Product and/or technical data in the design, development or
production of nuclear, chemical or biological weapons; or (c) any other country
to which such export or transmission is restricted by the export control laws
and regulations of the United States, and any amendments thereof, without prior
written consent, if required, of the Bureau of Export Administration of the U.S.
Department of Commerce, or such other governmental entity as may have
jurisdiction over such export or transactions, unless Microsoft specifically
directs StarTek in writing to do so.
(4) ENFORCEMENT. StarTek agrees that it will diligently and
timely enforce all rights against or obligations of any subcontractor(s) in
order to enforce compliance with the applicable terms of this Agreement and/or
to otherwise cure a subcontractor breach.
6. REPRESENTATIONS & WARRANTIES.
(A) BY STARTEK. StarTek represents and warrants to
MICROSOFT as follows:
a) StarTek is a corporation duly organised
and validly existing under the laws of * and has full
capacity and authority to enter into this Agreement
and to perform the Services required of it under this
Agreement;
b) this Agreement has been duly and validly
authorised, executed and delivered on behalf of
StarTek and is a valid and binding agreement of
StarTek enforceable in accordance with its terms and
that neither the execution of this Agreement nor the
performance of the Services required of it hereunder
will constitute a breach of any agreement or
arrangement to which StarTek is a party;
c) the Manufacturing, including any portion
done by any subcontractor as contemplated in Section
5, will strictly comply with all applicable laws, as
well as the terms and conditions of this Agreement,
including without limitation the Statement of Work;
d) the Products (including the raw
materials, reproduction quality, Product Components
and Finished Product Unit quality) will satisfy the
quality workmanship standards and service levels set
forth in the Microsoft Website (*) and Statement of
Work and StarTek shall further protect MICROSOFT's
property rights in MICROSOFT's Intellectual Property
and Deliverables from unauthorized use within the
scope of this Agreement;
e) StarTek shall at all times comply with
its commitments and obligations as stated in this
Agreement;
f) StarTek's performance of Manufacturing,
pursuant to the rights granted under this Agreement,
does not infringe any third party's patent,
copyright, trade secret and/or any other intellectual
property right with respect to StarTek's replication,
assembly, and/or distribution processes;
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g) StarTek will, at all times relevant to
this Agreement, keep any and all license agreement
with third parties relevant to Manufacturing the
Products in force and in good standing;
h) StarTek shall promptly replace, at no
charge to MICROSOFT or the Customers, any
non-conforming Products, and all transportation,
customs, and/or taxes relating thereto, if any
delivery of Products to MICROSOFT or Customers, or
any portion of it, breaches any of the warranties of
Section 6(a). In the event MICROSOFT determines that
a Product recall is necessary, StarTek shall
cooperate with MICROSOFT in all respects to conduct
such recall at StarTek's expense, provided that if
the recall is necessary because of a MICROSOFT error,
the recall on the account of that defect shall be at
MICROSOFT's expense, but StarTek shall still
cooperate with it, and in such a case, MICROSOFT
shall reimburse StarTek for the costs of producing
and distributing the replacement Products;
i) that all services on its part to be
performed under this Agreement will be performed with
all reasonable skill and care by competent staff and
in a timely manner. In addition to the foregoing, in
the event that service levels are set out in any
Statement of Work as to any particular services,
StarTek undertakes to meet such service levels;
j) to ensure that all information received
or generated through the Services (including without
limitation about any Products or about potential or
existing customers and their requirements) ("Data")
is captured, processed and transmitted accurately by
StarTek completely and in accordance with MICROSOFT's
instructions from time to time;
k) that all Data and information collected,
processed, created and managed by StarTek on behalf
of MICROSOFT will belong exclusively to MICROSOFT.
StarTek agrees not to disclose, divulge, offer,
supply, licence, rent, exchange, re-sell or re-use
any such Data and information at any time in the
future;
l) to maintain a telecommunications and
computer system to standards set by MICROSOFT from
time to time and having the functionality and
capacity necessary for StarTek to comply with its
obligations under this Agreement;
m) to work with MICROSOFT to provide and
install all necessary interface and bridging devices
required to successfully connect to either the Data
communications network or MICROSOFT or the Data
communications network of a nominated third party to
a standard set by MICROSOFT from time to time.
StarTek agrees to work with MICROSOFT to establish
such Data connectivity such that any telephone or
postal transaction undertaken by StarTek on behalf of
MICROSOFT is immediately reflected in the main
MICROSOFT customer Data base;
n) to fully cooperate with MICROSOFT in
implementing the programmes, policies, directions,
requests and instructions or MICROSOFT relating to
the services;
o) to pay and discharge all royalties,
licence fees or other payments payable to or claimed
by a third party in respect of any patent or other
intellectual property right of that third party
arising from the use of the subject matter of such
patent or other intellectual property by StarTek or
by any
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approved sub-contractors, suppliers or MICROSOFT
Authorised Replicators in performing the Services or
arising from the subsequent sale or supply by
MICROSOFT (anywhere in the world) of any Product or
component manufactured by StarTek or by any approved
sub-contractors, suppliers or MICROSOFT Authorised
Replicators and/or supplied by StarTek to MICROSOFT
and whether or not such obligation arises at the time
the Services are provided by StarTek or subsequently;
and
(B) The representations and warranties in Section 6(a) of
this Agreement shall continue during the term of this Agreement and if at any
time during the term of this Agreement any event occurs which would make any of
such representations or warranties untrue or inaccurate in any material respect,
StarTek shall promptly notify MICROSOFT of such event in writing and of the
facts related thereto and of any remedial action taken by StarTek in respect
thereof.
(C) BY MICROSOFT. MICROSOFT hereby represents and
warrants to StarTek as follows:
a) MICROSOFT has the full and exclusive
right and power to enter into and perform according
to the terms of this Agreement;
b) MICROSOFT has and will have, at all
relevant times, sufficient rights in the Products to
grant StarTek the rights granted in this Agreement;
c) that at all times relevant to this
Agreement, MICROSOFT will keep any and all license
agreements with third parties relevant to the
reproduction and manufacture of the Products in force
and in good standing; and
(D) DISCLAIMER OF WARRANTY. THE WARRANTIES SET FORTH IN
SECTIONS 6(A) AND 6(B) ABOVE ARE THE ONLY WARRANTIES MADE BY THE PARTIES AND ARE
IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING BUT
NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A
PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS.
7. YEAR 2000
(A) YEAR 2000 COMPLIANCE In this Section 7 the expression
"Year 2000 Compliant" (and like expressions) shall mean that no operational,
financial, data transmission, communication or process is affected or
interrupted by dates prior to, during or after the Year 2000, and in particular,
but without prejudice to the generality of the foregoing that:-
1) *
2) *
3) *
4) *
(B) *
(C) *
(D) *
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8. INDEMNITIES.
(A) STARTEK INDEMNITY OBLIGATIONS. StarTek agrees to
indemnify and hold harmless MICROSOFT (and each of its directors and officers)
from and against all Claims (as hereinafter defined) directly or indirectly
arising out of or in connection with or relating to:
a) any actions or omissions of
StarTek in connection with the performance
of the Services or any other of its duties
and obligations hereunder;
b) any breach of StarTek
obligations, warranties or representations
under or pursuant to this Agreement;
c) all wages, holiday pay,
employment benefit costs, redundancy costs
and unfair dismissal costs and awards in
respect of its employees and former
employees and arising whether before or
during the term of the Agreement or SOW for
whatever reason or following or resulting
from the termination of the Agreement or any
SOW for whatever reason;
d) any and all royalties, licence
fees or other payments payable to or claimed
by a third party in respect of any patent or
other intellectual property right of that
third party arising from the use of the
subject matter of such patent or other
intellectual property by StarTek or by any
approved sub-contractors, suppliers or
MICROSOFT Authorised Replicators in
performing the Services or arising from the
subsequent sale or supply by MICROSOFT
(anywhere in the world) of any product or
component manufactured by StarTek or by any
approved sub-contractors, suppliers or
MICROSOFT Authorised Replicators and/or
supplied by StarTek to MICROSOFT, and
whether or not such obligation arises at the
time the Services are provided by StarTek or
subsequently; and
e) any Claim attributable to
StarTek's and/or its approved
sub-contractors', suppliers' or MICROSOFT
Authorised Replicators' performance of the
Services pursuant to the rights granted
under this Agreement including, but not
limited to, StarTek's and/or its approved
sub-contractors', suppliers' or MICROSOFT
Authorised Replicators' replication,
manufacturing and assembly processes or any
Claim by any third party that StarTek's
and/or its approved sub-contractors',
suppliers' or MICROSOFT Authorised
Replicators' performance of the Services,
pursuant to the rights granted under this
Agreement, infringes such third party's
patent, copyright, trade secret and/or any
other intellectual property right with
respect to StarTek's and/or its approved
sub-contractors', suppliers' or MICROSOFT
Authorised Replicators' replication,
manufacturing and assembly processes.
(B) Council Directive of 14 February 1977 on the
approximation of the laws of the Member States relating to the safeguarding of
employees' rights in the event of transfers of undertakings, businesses or parts
of businesses (77/187/EEC) as amended by Council Directive 98/50/EC of 29 June
1998
MICROSOFT and StarTek hereby agree and acknowledge that:
(1) to the extent the entering into of this Agreement and
any/or Statement of Work hereunder or pursuant hereto, or the
commencement by StarTek of providing or performing the
Services is deemed to amount to, or results in, the transfer
of a business or part of a business within the meaning of the
Council Directive of 14 February 1977 on the approximation of
the laws of the Member States relating to the safeguarding of
employees' rights in the event of transfers of
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undertakings, businesses or parts of businesses (77/187/EEC)
(as amended by Council Directive 98/50/EC of 29 June 1998)
(together and individually the "Directive") or any applicable
national laws or regulations implementing the same
("Regulations"); and
(2) to the extent the termination of this Agreement and/or any
Statement of Work hereunder or pursuant hereto, or the
cessation by StarTek of the provision or the performance of
the Services, or the combination or centralisation of the
Services through one or more MICROSOFT turnkey manufacturers,
is deemed to amount to, or results in, the transfer of a
business or part of a business within the meaning of the
Directive and/or the Regulations:
then StarTek shall in such circumstances be fully liable and
responsible for all obligations and liabilities whatsoever
arising as a result of such deemed or resulting application of
the Directive and/or the Regulations and whether in respect of
any contracts of employment, employment relationships or
collective agreements (whether or not relating to employees of
MICROSOFT or another party) or pursuant to any enactments or
statutory provisions (or orders or regulations made
thereunder) relating to employees in force at any time, and
that StarTek shall at all times fully and effectually
indemnify and hold harmless MICROSOFT against all claims,
judgments, decrees, orders, awards, costs, liabilities and
expenses howsoever arising under or by virtue thereof,
including without limitation all wages, holiday pay,
employment benefit costs, redundancy costs and unfair
dismissal costs, and awards in respect of such, together with
legal or other costs, and whether arising before or during the
term of the Agreement or Statement of Work. This indemnity
will extend to all costs and expenses incurred in defending
any such claims or actions or complying with any such award or
awards of any court or tribunal of competent jurisdiction.
(C) MICROSOFT INDEMNITY OBLIGATIONS. MICROSOFT agrees to
indemnify StarTek from all Claims made against StarTek arising out of breach of
MICROSOFT's obligations, warranties or representations contained at Section 6(c)
(2).
(D) DEFINITIONS. In relation to any obligation to
indemnify undertaken in this Agreement "Claim" includes any cost, claim,
liability, proceeding, action, demand, damages and expense (including reasonable
attorney's fees and costs).
(E) SURVIVAL. StarTek and MICROSOFT agree that the
indemnities set forth in this Section 8 shall survive and shall be enforceable
beyond the or completion of this Agreement.
(F) LIMITATION ON LIABILITY. STARTEK'S TOTAL LIABILITY AS
TO MATTERS ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO *, WITH THE
EXCEPTION THAT STARTEK'S LIABILITY SHALL BE UNLIMITED AS TO: (i) ANY
INDEMNIFICATION OBLIGATION FOR PERSONAL INJURY, DEATH OR PROPERTY DAMAGE TO THE
EXTENT SUCH CLAIM IS BASED UPON STRICT LIABILITY, NEGLIGENCE, GROSS NEGLIGENCE,
INTENTIONAL ACT OR OTHER FAULT OF STARTEK OR ITS SUBCONTRACTOR(S); (ii) ANY
MATTER ARISING UNDER SECTION 8 OF THIS AGREEMENT; (iii) FOR THE COST OF ANY
RECALL INCLUDING THE COST OF PRODUCING REPLACEMENT PRODUCT(S); (iv) ANY FAILURE
TO RETURN ANY DELIVERABLES AS IS OTHERWISE PROVIDED FOR IN THIS AGREEMENT; OR
(v) ANY COPYRIGHT, PATENT, TRADEMARK OR TRADE SECRET INFRINGEMENT(S) (ALL OF THE
FOREGOING BEING COLLECTIVELY REFERRED TO AS THE "STARTEK EXCLUDED MATTERS").
MICROSOFT'S TOTAL LIABILITY AS TO MATTERS ARISING UNDER THIS AGREEMENT SHALL
ALSO BE LIMITED TO *, EXCEPT FOR ANY MATTERS ARISING UNDER SECTION 8 OF THIS
AGREEMENT. EXCEPT WITH REGARD TO STARTEK EXCLUDED MATTERS (WHICH TERM FOR THE
PURPOSES OF THIS SENTENCE SHALL NOT INCLUDE ANY LIABILITY AS TO RECALL) AND
MATTERS ARISING UNDER SECTIONS 7 and 11, NO PARTY HERETO SHALL BE LIABLE TO
ANOTHER FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING
OUT OR RELATED TO THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE OTHER
PROVISIONS OF THIS AGREEMENT RELY UPON THE INCLUSION OF THIS SECTION 8(f).
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9. CONFIDENTIALITY.
(A) DEFINITIONS. In this Section:
1) "StarTek Confidential Information" means
information that StarTek designates as being
proprietary and/or confidential or which, under the
circumstances surrounding its disclosure or the
manner whereby it was acquired or obtained or
otherwise ought to be treated as proprietary or
confidential and includes without limitation,
information relating to StarTek's organisation,
affairs, plans, transactions, proposals, projections,
strategies, finances, prices, costs, accounts,
products, customers, suppliers (other than suppliers
used in the provision of the services), data systems,
software or activities and information received from
others that StarTek is obligated to treat as
confidential, but specifically excluding any
information within the definition of "MICROSOFT
Confidential Information" as defined below, or which
StarTek is obliged or required to furnish to
MICROSOFT pursuant to the terms of or in connection
with this Agreement.
2) "MICROSOFT Confidential Information"
means information that MICROSOFT or Microsoft
Corporation designates as being proprietary and/or
confidential or which, under the circumstances
surrounding its disclosure or the manner whereby it
was acquired or obtained or otherwise ought to be
treated as proprietary or confidential and includes,
without limitation, the terms of this Agreement, *
and information received from others that MICROSOFT
and/or Microsoft Corporation are obligated to treat
as confidential.
Neither "StarTek Confidential Information" nor "MICROSOFT
Confidential Information" shall include that information
defined as StarTek Confidential Information or MICROSOFT
Confidential Information (as the case may be) above that: (i)
entered or subsequently enters the public domain without
breach by either party of any obligation owed to the other or
to Microsoft Corporation; (ii) became known to either party
prior to the disclosure by the other party of such information
to that party or that party's acquisition or obtaining
thereof; (iii) became known to either party from a source
other than the other party, other than by the breach of an
obligation of confidentiality owed to that other party or
Microsoft Corporation; (iv) is disclosed by either party to a
third party without restrictions on its disclosure; or (v) is
independently developed by either party.
3) "Confidential Materials" shall mean all
materials and media containing or comprising
MICROSOFT Confidential Information or StarTek
Confidential Information (as the case may be), or on
which MICROSOFT Confidential Information or StarTek
Confidential Information (as the case may be) is
stored or resides, including without limitation
written or printed documents and computer disks, CDs,
CD-Rs, CD-ROMs, tapes or other media, masters and
whether machine or user readable.
4) "Public Domain Information" means
information or know-how that can be acquired from
MICROSOFT or Microsoft Corporation or StarTek (as the
case may be), or other sources upon request by a
member of the general public, free of charge or for
the cost of copying.
(B) MICROSOFT RESTRICTIONS AND OBLIGATIONS. MICROSOFT
shall not disclose or permit the disclosure of any StarTek Confidential
Information or Confidential Materials to third-parties (other than an Associated
Company) for * following the date of its disclosure by StarTek to MICROSOFT or
MICROSOFT's acquisition or obtaining thereof.
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(C) STARTEK RESTRICTIONS AND OBLIGATIONS. Subject to
sub-Section (d) below, StarTek shall not disclose or permit the disclosure of
any MICROSOFT Confidential Information or Confidential Materials to third
parties including, but not limited to, any Associated Company for * years
following the date of its disclosure by MICROSOFT or Microsoft Corporation to
StarTek or StarTek's acquisition or obtaining thereof.
(D) For the purposes of this Section 9(d) and of Section
16(a), "Associated Company" means:-
a) any company which is related to MICROSOFT
or StarTek (as the case may be), within the meaning
of Section 140 of the Companies Xxx 0000 or which
would be so related if it was incorporated in
Ireland; or
b) any person or body of persons or any
company, partnership, consortium or joint venture
related or affiliated to or controlled or managed by
MICROSOFT or StarTek (as the case may be) or by any
person or group of persons connected to any director
of MICROSOFT or StarTek (as the case may be) within
the meaning of Section 26 of the Companies Xxx 0000
or by any company which is related to MICROSOFT or
StarTek (as the case may be) within the meaning of
Section 140 of the Companies Xxx 0000 or which would
be so related if it was incorporated in Ireland.
(E) StarTek may disclose MICROSOFT Confidential Information and/or
Confidential Materials to any of its authorised employees or agents,
consultants or sub-contractors authorised by MICROSOFT pursuant to
Sections 5(a) and 16(a) who have a need to know the same for the
purpose of this Agreement. StarTek shall procure that each such
employee, agent, consultant or sub-contractor having access to or
otherwise receiving any MICROSOFT Confidential Information and/or
Confidential Materials, shall enter into confidentiality agreements in
the form or substantially in the form set out in Exhibit F hereto in
respect of any MICROSOFT Confidential Information and/or Confidential
Materials that may be disclosed or released to or otherwise received by
such employee, agent, consultant or sub-contractor. Immediately upon
StarTek becoming aware of or suspecting any breach or threatened breach
of any of the said confidentiality agreements StarTek shall:-
a) forthwith notify MICROSOFT in writing of
such breach or threatened breach and give to
MICROSOFT such information as MICROSOFT may in its
sole discretion require and is reasonably available
to StarTek in relation to such breach or threatened
breach and MICROSOFT may in the name of StarTek take
such action at the cost and expense of MICROSOFT as
MICROSOFT may at its sole discretion consider
necessary or desirable to avoid or resist the breach
or threatened breach and to enforce the said
confidentiality agreements or any of them subject
only to notifying StarTek to the extent considered
practicable by MICROSOFT prior to taking any such
action; and
b) do and permit to be done all things which
may be required to be done at the cost and expense of
MICROSOFT to minimise, avoid or diminish the actual
or potential loss to any or all of MICROSOFT and
Microsoft Corporation and any of its or their
affiliates as a result of such breach or threatened
breach and to enable MICROSOFT to enforce the said
confidentiality agreements or any of them in the name
of StarTek and StarTek shall not be entitled to
withdraw, compromise or settle any such enforcement
action without the prior written consent of MICROSOFT
save as required by the legally binding obligation
imposed on it by a court of final appeal and of
competent jurisdiction, or by a court of competent
jurisdiction where a stay of execution is refused
pending appeal.
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(F) StarTek may nto reverse engineer, decompile or
disassemble any software made available to COMPANY by or acquired from MICROSOFT
or Microsoft Corporation except as expressly permitted by applicable law. In
addition, StarTek may not unlawfully copy or distribute any such software.
(G) MICROSOFT RIGHTS AND REMEDIES
a) StarTek shall notify MICROSOFT
immediately upon discovery of any
unauthorised use or disclosure of MICROSOFT
Confidential Information or Confidential
Materials, or any other breach of this
Agreement by StarTek, and will cooperate
with MICROSOFT in every reasonable way to
help MICROSOFT regain possession of the
MICROSOFT Confidential Information or
Confidential Materials and prevent its
further unauthorised use.
b) StarTek shall return all
originals, copies, reproductions and
summaries of MICROSOFT Confidential
Information or Confidential Materials (in
whatever form whether tangible, electronic
or other) at MICROSOFT's' request or, at
MICROSOFT's option, certify destruction of
the same.
c) StarTek acknowledges that
monetary damages may not be a sufficient
remedy for unauthorised disclosure of
MICROSOFT Confidential Information or
Confidential Materials and that MICROSOFT
shall be entitled, without waiving any other
rights or remedies, to such injunctive or
equitable relief as may be deemed proper by
a court of competent jurisdiction.
d) MICROSOFT may visit StarTek's
premises, with reasonable prior notice and
during normal business hours, to review
StarTek's compliance with the terms of this
Agreement.
(H) STARTEK RIGHTS AND REMEDIES
a) MICROSOFT shall notify StarTek
immediately upon discovery of any
unauthorised use or disclosure of StarTek
Confidential Information or Confidential
Materials, or any other breach of this
Agreement by MICROSOFT, and will cooperate
with StarTek in every reasonable way to help
StarTek regain possession of the StarTek
Confidential Information or Confidential
Materials and prevent its further
unauthorised use.
b) MICROSOFT shall return all
originals, copies, reproductions and
summaries of StarTek Confidential
Information or Confidential Materials (in
whatever form whether tangible, electronic
or other) at StarTek's request or, at
StarTek's option, certify destruction of the
same.
c) MICROSOFT acknowledges that
monetary damages may not be a sufficient
remedy for unauthorised disclosure of
StarTek Confidential Information or
Confidential Materials and that StarTek
shall be entitled, without waiving any other
rights or remedies, to such injunctive or
equitable relief as may be deemed proper by
a court of competent jurisdiction.
(I) MISCELLANEOUS
a) All MICROSOFT Confidential
Information and Confidential Materials are
and shall remain the property of MICROSOFT
and/or Microsoft Corporation. By disclosing
MICROSOFT Confidential Information and
Confidential Materials to StarTek, MICROSOFT
and/or Microsoft Corporation
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do not grant any express or implied right to
StarTek to or under any MICROSOFT and/or
Microsoft Corporation patents, copyrights,
trademarks or other intellectual property
rights or trade secret information.
b) All StarTek Confidential
Information and Confidential Materials are
and shall remain the property of StarTek. By
disclosing StarTek Confidential Information
and Confidential Materials to MICROSOFT,
StarTek does not grant any express or
implied right to MICROSOFT to or under any
StarTek patents, copyrights, trademarks or
other intellectual property rights or trade
secret information.
c) Notwithstanding the foregoing
either party may disclose the terms of this
Agreement to its outside legal and financial
advisers in the ordinary course of its
business. Either party may disclose
MICROSOFT Confidential Information and/or
StarTek Confidential Information and/or
Confidential Materials (as the case may be)
if required to do so by government or
judicial order provided that:-
i) it shall have given the
other party prompt written notice
prior to the disclosure;
ii) it shall comply with
any protective order or equivalent
imposed on such disclosure, and
iii) it shall provide the
other party with the option of
either seeking a protective order
or having such MICROSOFT
Confidential Information and/or
StarTek Confidential Information
and/or Confidential Materials (as
the case may be) made subject to
the same protective order as may
apply to the information of that
party subject to the government or
judicial order.
d) StarTek undertakes that any
information relating to customers of
MICROSOFT, Microsoft Corporation or any of
its or their affiliates, distributors,
agents or resellers, that either has been or
is provided to StarTek by any of the
aforementioned in order to perform the
services or its obligations under this
Agreement, or that is otherwise acquired by
StarTek whether before or after the date
hereof, shall be treated as MICROSOFT
Confidential Information and shall be held
by StarTek in the strictest of confidence
and shall not be utilised by StarTek for any
purpose (including but not limited to its
dissemination to or utilisation by any
Associated Company of StarTek whether
involved in the reselling of software and/or
computer hardware products or not) other
than the provision of the services.
10. TITLE
(A) StarTek acknowledges and agrees that
notwithstanding delivery or the passing of risk or any other provision of this
Agreement the property and title to all materials, goods and components used or
to be used in the Services:
a) delivered to StarTek's Facility
or to the facility of any of its approved
sub-contractors (whether originating from
MICROSOFT, an approved supplier or other
third party) shall vest in MICROSOFT with
effect from the time of delivery to
StarTek's Facility or to the facility of any
of its approved
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sub-contractors to the extent (if any) that
MICROSOFT does not hold title to them before
such time;
b) created or originating at
StarTek's Facility or to the facility of any
of its approved sub-contractors shall vest
in MICROSOFT with effect from the moment of
their creation;
And StarTek acknowledges and agrees that neither the
title nor the property in any materials, goods and
components as aforesaid vests in or will vest in
StarTek or in any of its approved sub-contractors,
notwithstanding that MICROSOFT shall have no
obligation to pay StarTek's approved sub-contractors,
and StarTek shall be solely liable and responsible to
its approved sub-contractors for payment, for such
materials, goods and components delivered to or
created or originating at StarTek's approved
sub-contractors' facilities.
(B) For the avoidance of doubt, the property and
title in each unit of finished Microsoft Products delivered to or manufactured
by StarTek and/or any of its approved sub-contractors shall be and remain vested
in MICROSOFT and shall not at any time pass to StarTek.
(C) StarTek shall not create, or permit, suffer or
allow to arise, over or in relation to any unit of Microsoft Products or any
materials, goods or components used or to be used in the Services any charge,
lien, encumbrance or other security interest of whatever nature.
(D) StarTek shall store all materials, goods and
components used or to be used in the Services as well as finished Microsoft
Products such that they remain at all times separately identifiable as the
property of MICROSOFT and StarTek shall return any and all such materials,
goods, components and finished Microsoft Products to MICROSOFT on request.
(E) StarTek hereby grants an irrevocable right and
licence to MICROSOFT, its servants and agents to enter with or without notice
upon all or any of its premises with or without vehicles during normal business
hours for the purposes of verifying that the provisions of this Section are
being complied with and/or taking possession of any and all such materials,
goods, components, and finished Microsoft Products and this provision shall
continue in force notwithstanding termination of this Agreement howsoever
caused.
11. RISK OF LOSS.
(A) StarTek shall assume the risk of loss or damage
to materials and goods which are the subject of this Agreement, or the product
of any Services, including but not limited to raw materials, components and
finished goods as follows: StarTek risk for incoming materials, goods and
components shall commence with effect from the earlier of the moment of their
delivery to or creation at StarTek's Facility or the authorised locations of all
StarTek's approved sub-contractors, suppliers and MICROSOFT Authorised
Replicators engaged by StarTek. Nothing herein shall prevent StarTek and the
approved sub-contractors, suppliers and/or the Authorised Replicators which
StarTek engages allocating such risk between them pursuant to the transfer of
risk terms contained in any agreement entered into between them, provided
however that StarTek shall assume sole responsibility for risk of loss at the
latest at the moment of the delivery of materials, goods or components to
StarTek's Facility. StarTek's responsibility for risk of loss shall continue
through manufacture, assembly, storage and shipment of finished goods. StarTek's
responsibility for risk of loss shall terminate upon the receipt by StarTek by
EDI from the MICROSOFT turnkey warehouser and/or distributor, or other recipient
pursuant to MICROSOFT directions, to which StarTek has shipped finished goods of
confirmation of receipt of the finished goods. StarTek shall remain responsible
for adequately packing the finished goods and shipping them to the MICROSOFT
turnkey warehouser and/or distributor or other recipients pursuant to
MICROSOFT's directions. In the event of loss or damage to any of the goods for
which StarTek assumes risk of loss, StarTek shall, or shall procure that its
insurers shall indemnify MICROSOFT for the value of goods as follows:
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(A) for raw materials and goods in
the course of manufacture owned by
MICROSOFT, MICROSOFT's * plus any or all *;
(B) for finished goods, MICROSOFT *
for such goods to the extent that MICROSOFT
receives orders for such finished goods that
would otherwise have been fulfilled through
the Services or, where such finished goods
are excess inventory owned by MICROSOFT, the
cost of goods sold;
(C) for all other property owned by
MICROSOFT, the current *.
(B) To the extent that any loss to MICROSOFT owned
property or inventories is covered by insurance maintained by StarTek, MICROSOFT
shall be permitted to participate in the adjustment of the loss and shall be
made loss payee on StarTek's insurance to the extent of its interest in the
lost, damaged or destroyed property. StarTek shall and shall procure that its
insurers shall waive all rights of subrogation against MICROSOFT in connection
with any payment made for loss or damage to MICROSOFT owned property.
(C) ON PREMISES RISK. StarTek shall be responsible
for all risk of loss or damage to all MICROSOFT property while located at
StarTek's or its subcontractor's facilities. StarTek shall be responsible for
the full amount of the loss or damage and shall reimburse MICROSOFT for such
loss or damage. Reimburseable amount for any loss or damage shall be as set
forth in Section 11(d) below.
(D) LIABILITY FOR THEFT, PILFERAGE, SHRINKAGE, ETC.
Notwithstanding the provisions of Section 10 (Title) and the foregoing
provisions of this Section 11, StarTek shall be fully liable to MICROSOFT for
the theft, pilferage, shrinkage or otherwise unexplained disappearance of any
and all Microsoft Products, Microsoft certificates of authenticity, CDs, discs
and other finished products whilst in its possession or under its control or
management during the period that StarTek is responsible for same. This period
runs from the time StarTek assumes risk of loss pursuant to this Section 11
until the documented delivery to and the documented receipt by or on behalf of
the MICROSOFT turnkey warehouser and/or distributor or other recipient as
designated by MICROSOFT. For the avoidance of doubt, this period covers the time
during which any of the aforementioned items are in the possession or under the
control or management of any of StarTek's approved sub-contractors, suppliers or
MICROSOFT Authorised Replicators engaged by StarTek. In the event that any of
the aforesaid items are stolen, lost or otherwise unaccounted for, StarTek
agrees to pay to MICROSOFT forthwith on demand the Microsoft distributor price
therefor (or, in the case of a Microsoft *.
(E) The foregoing is the best estimate of the parties
as to the likely loss and damage that MICROSOFT will suffer as a result of
theft, pilferage, shrinkage or otherwise unexplained disappearance of all
Microsoft Products, Microsoft certificates of authenticity, CDs, discs or other
finished products as aforesaid whilst in the possession, control or management
of StarTek.
(F) NOTICE OF LOSS - Upon discovery of the theft,
pilferage, shrinkage or otherwise unexplained disappearance of any and all
Microsoft Products (including components of Microsoft Products), Microsoft
certificates of authenticity, Microsoft certificate of authenticity labels, CDs,
CD masters, CD stampers, CD serialisation files, film, film masters, electronic
and physical artwork files, discs, disc masters, label masters, label art,
labels, user guides, user guide masters, packaging masters or other masters or
other products and finished products *, whilst in its possession or under its
control or management as aforesaid, StarTek shall as soon as reasonably
practical and in any event not more than * following discovery, notify MICROSOFT
of such loss along with sufficient details to enable MICROSOFT to make a
reasonable investigation of any loss involving the aforesaid items or other
MICROSOFT property.
(G) For the avoidance of doubt, the obligation of
StarTek under Section 11(d) to pay MICROSOFT * for damaged Microsoft Products
(including raw materials and components thereof) shall not apply
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where such items are damaged during the course of or as a result of the
provision of the Services PROVIDED ALWAYS that StarTek physically accounts for
all such damaged Microsoft Products (including raw materials and components
thereof) and for all Microsoft certificates of authenticity, CDs, discs, other
finished products which are damaged whilst in its possession or under its
control or management, to the satisfaction of MICROSOFT including where
necessary verified evidence of destruction.
12. TERM AND TERMINATION.
(A) DURATION. The term of this Agreement shall
commence on the Effective Date and terminate on * (the "Initial Term") unless
terminated earlier as provided below. In the event that either party wishes to
continue this Agreement for a further period of * beyond the Initial Term, such
party shall * give written notice to this effect to the other party. The other
party may (and will not be obliged to) agree to such an extension of this
Agreement on receipt of such notice. In the event that neither party gives such
notice, or either party does not agree to an extension as outlined, this
Agreement shall terminate on the expiry of the Initial Term, unless terminated
earlier as provided below.
(B) EARLY TERMINATION AND DEFAULT. MICROSOFT may
terminate this Agreement immediately upon notice if StarTek: (i) fails to
strictly comply with Sections 4 and/or 9 of this Agreement, (ii) makes or
attempts to make an assignment in violation of Section 16(a) of this Agreement,
or (iii) experiences an Insolvency Event of Default, as defined below. In
addition to the foregoing, MICROSOFT may terminate this Agreement without cause
with * notice in writing. The rights and remedies provided herein to the parties
shall not be exclusive and are in addition to any other rights and remedies
provided by law. In the event a non-defaulting party in its discretion elects
not to terminate this Agreement, such election shall not be a waiver of any
claims of that party for a default(s). Further, the non-defaulting party may
elect to leave this Agreement in full force and effect and to institute legal
action against the defaulting party for specific performance and/or damages
suffered by such party as a result of the default(s). For purposes of this
Agreement, an "Insolvency Event of Default" shall be deemed to have occurred in
the event the applicable party fails to formally dismiss the Insolvency Event of
Default within * after commencement of any of the following proceedings: (x) any
party admits in writing its inability to pay its debts generally or makes a
general assignment for the benefit of creditors; (y) any affirmative act of
insolvency by any party or the filing by or against any party of any petition or
action under any bankruptcy, reorganization, insolvency arrangement,
liquidation, dissolution or moratorium law, or any other law or laws for the
relief of, or relating to, debtors; or (z) the subjection of a material part of
any party's property to any levy, seizure, assignment or sale for or by any
creditor, third party or governmental agency.
Notwithstanding the foregoing, MICROSOFT may, at its sole discretion,
immediately terminate this Agreement if, due to StarTek's lack of diligence,
StarTek engages in or permits its subcontractor(s) to engage in the unauthorized
replication and/or distribution of Product(s). StarTek will diligently attempt
to prevent any unauthorized replication and/or distribution of Product(s) by
StarTek employees or any subcontractor and will cooperate fully with MICROSOFT
to that end. MICROSOFT may, at its sole discretion, immediately terminate
StarTek's right to subcontract the replication and/or assembly of Product(s), in
accordance with Section 5 of this Agreement, if MICROSOFT determines that
StarTek's subcontractor is or has been involved in the unauthorized replication
and/or distribution of Product(s) or any third party products.
In addition, MICROSOFT may terminate this Agreement by notice in writing to
StarTek if StarTek shall change its organisation or methods of doing business so
as in MICROSOFT's sole opinion to be able less effectively to carry out its
duties hereunder or if there is a change of control of StarTek. For the purposes
of this Agreement an entity is "controlled" by another if that other either
directly or through its control of another company or legal entity: (1) holds
the majority of voting rights in it; (2) is a member of it and has the right to
appoint or remove a majority of its board of directors; or (3) is a member of it
and controls alone, under an agreement with other shareholders or members, the
majority of the voting rights in it.
(C) HIERARCHY. In the event that MICROSOFT is
entitled to terminate this Agreement pursuant to any of the provisions of
sub-Sections (a) or (b) above, MICROSOFT shall be entitled (but not required) to
terminate all or any Statements of Work and/or the Agreement as it chooses.
Termination of the
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Master Agreement shall automatically terminate all Statements of Work.
Termination of all or any Statements of Work shall not of itself terminate the
Agreement.
(D) RIGHTS UPON TERMINATION OR EXPIRATION. Upon the
termination or expiration of this Agreement:
(E) MICROSOFT shall have the right to recover and
repossess any stocks of Microsoft Products or other MICROSOFT materials, goods,
components including without limitation all replication lists and all
replicating kits, CD masters, CD stampers, CD serialisation files and labels,
all software on disk, CD-R masters, CD-ROM masters, glass masters, electronic
files, film masters, electronic and physical artwork files, PID files and
labels, disk masters, label masters, label art, labels, user guide masters,
packaging masters or other masters, Microsoft certificates of authenticity,
Microsoft certificate of authenticity labels, raw disks and source code in
StarTek's possession or under its control, including all Microsoft Products and
other Microsoft materials, goods and components as aforesaid in the possession
or under the control of StarTek's approved sub-contractor;
(F) STARTEK will return to MICROSOFT upon demand all
Data and any price lists, literature, manuals and any other material supplied or
owned by MICROSOFT which StarTek or its approved sub-contractors may have in its
or their possession or under its or their control and whether in paper,
electronic or other form;
(G) STARTEK will, and will procure that its approved
sub-contractors will, destroy and expunge from its or their computers any and
all MICROSOFT materials, goods, components, software (including without
limitation replicating kits, CD masters, CD stampers, CD serialisation files and
labels, all software on disk, CD-R masters, CD-ROM masters, glass masters,
electronic files, film masters, electronic and physical artwork files, PID files
and labels, disk masters, label masters, label art, labels, user guide masters,
packaging masters or other masters, raw disks, source code and the like) which
are held in electronic form and shall certify in writing under the hand of an
authorised officer of StarTek that same has been done.
(H) MICROSOFT shall not be liable to make or pay any
compensation to StarTek or its approved sub-contractors for loss of profits,
goodwill, or otherwise, arising as a result of the termination of this
Agreement;
(I) STARTEK shall remove and discontinue the use of
all signs, stationery, advertising and other material that would make it appear
to the public that StarTek is still providing services in relation to Microsoft
Products; and
(J) STARTEK shall cease, and shall procure that its
approved sub-contractors shall cease, to use the tradenames, trademarks, logos
or symbols owned by MICROSOFT or Microsoft Corporation or any of its or their
affiliates and/or any of its or their licensors.
(K) STARTEK shall co-operate with MICROSOFT to ensure
that there is an orderly and expeditious winding down of all Services then being
performed by StarTek and/or its approved sub-contractors, and where MICROSOFT
has arranged for such Services to be performed by another party, that there be
an orderly and expeditious transfer and transition to such third party.
(L) EFFECT OF DEFAULT. If there is a Default, the
parties shall have all rights and remedies provided in this Agreement or
otherwise available under law as limited by this Agreement.
(M) SURVIVAL. Sections 2, 3, 4, 5, 6, 7, 8, 9, 10,
11, 12 and 13 shall survive termination or expiration of this Agreement.
(N) ACCRUED RIGHTS. Any termination of this Agreement
by any party shall be without prejudice to any other rights or remedies that
party might be entitled to hereunder or at law and shall not effect any accrued
rights or liabilities of either party nor the coming into or continuance in
force of any provision
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hereof which is expressly or by implication intended to come into or continue in
force on or after such termination including without prejudice to the generality
of the foregoing, the provisions of Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12
and 13 which shall survive any termination of this Agreement.
13. RECORD KEEPING, RECORD REVIEW, ETC
(A) GENERAL. The provisions of this Section 13 are
subject to any detailed provisions relating to records, review, reporting,
inspection and audit in any executed and/or signed Statement of Work.
(B) RECORD KEEPING REQUIREMENTS.
a) RECORD KEEPING REQUIREMENTS
During the term of this Agreement, StarTek
agrees to keep all usual and proper books of
account and all usual and proper entries
relating to the Services and StarTek's
performance of this Agreement and to
maintain them for a minimum period of * from
the date they are created. Such records,
books of account, and entries shall be kept
in accordance with generally accepted
accounting principles.
b) FINANCIAL STATEMENTS StarTek
shall provide MICROSOFT with quarterly
Financial Statements within * after the end
of each calendar quarter. Furthermore,
within * of the financial year end of
StarTek, StarTek shall furnish MICROSOFT
with a complete copy of its Audited Accounts
for such financial year.
In this Section 13 "Financial Statement" shall mean a
Balance Sheet and Profit & Loss Account both made up
as of the last day of the calendar quarter, together
with a Cash Flow Statement for the calendar quarter
in question and the calendar year to date, duly
prepared in accordance with US Generally Accepted
Accounting Principles ("US GAAP"). Any deviation from
US GAAP in the quarterly Financial Statements must be
clearly noted.
In this Section 13 "Audited Accounts" shall mean the
Balance Sheet, Profit & Loss Account, both made up as
of the last day of the financial year, together with
a Cash Flow Statement for the financial year in
question duly prepared in accordance with US GAAP.
(C) AUDIT. MICROSOFT may cause an audit and/or
inspection and/or review to be made of the applicable StarTek records, books of
account and entries at any warehouse or storage location of StarTek or any other
location from which StarTek is performing the Services in order to verify
StarTek's compliance with the terms of this Agreement and to verify statements
issued by StarTek at any time during the term of this Agreement and for a period
of * thereafter. Any such audit shall be made by an independent qualified
accountant selected by MICROSOFT (other than on a contingent fee basis). Any
such inspection shall be made by MICROSOFT or a third party designated by
MICROSOFT. Any audit and/or inspection shall be conducted during regular
business hours at the relevant StarTek location with * prior notice (no such
notice shall be required where MICROSOFT suspects that there has been a breach
of security). StarTek agrees to provide MICROSOFT's designated audit or
inspection team access to relevant MICROSOFT related StarTek records, books of
account and entries and to all warehouse and storage locations of StarTek and
all other locations from which StarTek is performing the Services. Any such
audit shall be paid for by MICROSOFT unless material discrepancies are
disclosed. "Material" shall mean * of the transactions (costs borne by or income
due to MICROSOFT) within the audit period. IF MATERIAL DISCREPANCIES ARE
DISCLOSED:
(1) STARTEK AGREES TO REIMBURSE MICROSOFT FOR ALL OVER-CHARGED AMOUNTS THAT
ARE DISCLOSED PLUS INTEREST ON SUCH AMOUNTS ON A DAY TO DAY BASIS (AS
WELL AFTER AS BEFORE ANY JUDGMENT) FROM THE DATE THAT THE COST WAS
INCURRED AND CHARGED TO MICROSOFT OR THE INCOME PAID TO MICROSOFT, TO
THE
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DATE OF ACTUAL PAYMENT (BOTH DATES INCLUSIVE) AT THE RATE OF * (OR SUCH
OTHER DUBLIN CLEARING BANK AS MICROSOFT MAY NOMINATE) FROM TIME TO TIME
IN FORCE (OR IF THERE IS NO SUCH RATE, THE NEAREST EQUIVALENT RATE AS
DETERMINED BY MICROSOFT COMPOUNDED QUARTERLY) AND IN SUCH CIRCUMSTANCES
STARTEK ALSO AGREES TO PAY THE COSTS ASSOCIATED WITH THE AUDIT; AND
(2) MICROSOFT AGREES TO REIMBURSE STARTEK FOR ALL UNDER-CHARGED AMOUNTS
THAT ARE DISCLOSED PLUS INTEREST ON SUCH AMOUNTS ON A DAY TO DAY BASIS
(AS WELL AFTER AS BEFORE ANY JUDGMENT) FROM THE DATE THAT THE COST WAS
INCURRED AND CHARGED TO MICROSOFT OR THE INCOME PAID TO MICROSOFT, TO
THE DATE OF ACTUAL PAYMENT (BOTH DATES INCLUSIVE) AT THE RATE OF * (OR
SUCH OTHER DUBLIN CLEARING BANK AS MICROSOFT MAY NOMINATE) FROM TIME TO
TIME IN FORCE (OR IF THERE IS NO SUCH RATE, THE NEAREST EQUIVALENT RATE
AS DETERMINED BY MICROSOFT COMPOUNDED QUARTERLY) AND IN SUCH
CIRCUMSTANCES MICROSOFT ALSO AGREES TO PAY THE COSTS ASSOCIATED WITH
THE AUDIT.
The foregoing is the best estimate of the parties as to the likely loss and
damage that MICROSOFT will suffer as a result of such material discrepancies.
StarTek shall procure the right for MICROSOFT to carry out audits and/or
inspections of the facilities of StarTek's sub-contractors on terms equivalent
to those set out in this Section 13.
(D) RECORD REVIEW
a) RELEVANT RECORDS. Where
MICROSOFT causes a review of StarTek's
records , books of account and entries to be
made, then without prejudice to the
generality of the information and records
that MICROSOFT may require from StarTek
pursuant to this Section 13:
(i) where StarTek bills MICROSOFT on a PRICE PER UNIT
OR PRICE PER ACTIVITY, StarTek shall provide copies
of shipping, production or other relevant records to
support invoices and copies of third party invoices
to support price adjustments based on changes in the
cost of third party materials and services including,
without limitation, paper, media, packaging
materials, postage and freight; StarTek shall not be
obligated, however, to provide any internal
documentation on StarTek's costs or returns related
to such invoices;
ii) where StarTek bills MICROSOFT a SERVICE FEE, as
opposed to a price per unit or per activity, StarTek
shall make available to MICROSOFT any and all
supporting materials, records and documentation
relevant to such service fee.
b) REVIEW PROCESS. Any record
review conducted pursuant to this Section 13
shall be made by an independent qualified
accountant selected by MICROSOFT (other than
on a contingent fee basis) at StarTek's
office or such other reasonable location as
MICROSOFT may request. If accounting
discrepancies, inconsistencies or errors in
statements issued by StarTek are disclosed
as a result of a record review, StarTek
agrees (without prejudice to StarTek's
obligations pursuant to this Section 13) to
implement and/or require outside contractors
to implement promptly agreed-upon corrective
action. Nothing herein shall preclude
MICROSOFT from exercising any other rights
or remedies it has under law or other
provisions of this Agreement.
(E) FACILITY INSPECTIONS. MICROSOFT may cause an
inspection to be made with * prior notice (no such notice shall be required
where MICROSOFT suspects that there has been a breach of security) of any
Facility to verify that StarTek is providing the Services in compliance with the
terms of this Agreement. Any inspection conducted pursuant to this Section 13
shall be conducted during regular business hours at the Facility. StarTek agrees
to provide MICROSOFT's designated inspection team access to all relevant
records, books of account and entries and the Facility. If material
discrepancies or departures from the provisions of this Agreement are disclosed,
StarTek agrees to implement promptly agreed-upon corrective action. Nothing
herein shall preclude MICROSOFT from exercising any other rights or remedies it
has under law or other provisions of this Agreement.
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14. NOTICES AND PRINCIPAL CONTACTS.
All notices, authorizations, and requests in connection with this
Agreement shall be deemed given on the day they are sent by air express courier,
charges prepaid; and addressed as follows:
STARTEK: StarTek Inc.
Attn: Xxxx Xxxxxx
0000 X Xx.
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
With a copy to: StarTek General Counsel
Xxxxx Xxxxxxxx
Xxxxx, Johnson, Robinson, Xxxx and Xxxxxxxxx, PC
000 Xxxxxxxxxxx Xxxxxx,
Xxxxx 0000
Xxxxxx
Xxxxxxxx 00000
Telephone: 000 000 0000
Fax: 000 000 0000
MICROSOFT: Microsoft Xxxxxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxx
Xxxxxxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx 00 Ireland
Attn: *
Telephone: 000 0 000 0000
Fax: 353 1 706 4294
With a copy to: Law & Corporate Affairs
Microsoft Corporation
Microsoft Europe Services
Tour Pacific
00000 Xxxxx La Defense Cedex - France
Attn: Xxxxxx X. XxXxxx
Telephone: 00 00 00 00 00 00
Fax: 33 01 46 35 10 32
or such other person or address as each party, respectively, so designates by
written notice to the other parties.
15. ENTIRE AGREEMENT AND MODIFICATIONS.
(1) ENTIRE AGREEMENT. This Agreement is the entire agreement
between the parties relating to its subject matter and supersedes and cancels
any previous or existing agreement or other arrangement between MICROSOFT and
StarTek. Any statements or representations or agreement made by either party
shall not be binding on that party unless contained in writing and signed by an
authorised representative of that party.
(2) STATEMENT OF WORK. The Statement of Work may be modified
as follows: each modification must be approved by MICROSOFT and StarTek, and
such approval must be documented with a confirming e-mail or other written
communication between authorized representatives of the two parties. In
addition, if MICROSOFT deems it necessary and appropriate, it shall prepare on a
* basis an updated version of the
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Statement of Work incorporating all modifications made since the prior update
and clearly setting forth the "Date of Revision" on the front page. MICROSOFT
shall circulate each such update to StarTek. The most current revised version of
the Statement of Work that has been circulated in this manner to the parties,
together with subsequent modifications documented pursuant to this Section 15(b)
shall constitute the Statement of Work for the purposes of this Agreement.
StarTek shall maintain and make available to MICROSOFT upon request copies of
all of its documentation regarding modifications to the Statement of Work. For
purposes of this Agreement, references to Statement of Work includes any agreed
modification even if prior to the quarterly incorporation of such changes.
(3) AMENDMENT. This Agreement may be amended only in writing
signed by authorized representatives of both parties. Notwithstanding the
foregoing, MICROSOFT reserves the right to change, by * prior notice to StarTek,
any policies of MICROSOFT.
(4) OTHER. Except as provided in this Section 15, the
provisions of this Agreement may be modified only by written instrument signed
by duly authorized representatives of MICROSOFT and StarTek.
16. GENERAL.
(1) PROHIBITION AGAINST ASSIGNMENT. Except as expressly
provided in this Section 16(a), no party may assign its rights or obligations
under this Agreement (by actual assignment or by operation of law, including
without limitation through a merger, consolidation, exchange of shares, or sale
or other disposition of assets, including disposition on dissolution), without
the prior written consent of the other party, which consent shall not be
unreasonably withheld. MICROSOFT may, however, assign this Agreement to a
MICROSOFT subsidiary without the consent of StarTek. For the avoidance of doubt,
for the purposes of this Section 16(a) "subsidiary" means any company in which
Microsoft Corporation holds or controls directly or indirectly 51% of the issued
share capital or voting rights. Notwithstanding the foregoing, this is a
contract for personal services and MICROSOFT relies upon the qualifications,
reputation and expertise of StarTek to perform all obligations hereunder. In
particular, MICROSOFT relies upon StarTek's history of performance over more
than * of operation,
(2) GOVERNING LAW AND JURISDICTION. This Agreement shall be
governed by and construed in accordance with the laws of Ireland and StarTek
hereby agrees for the benefit of MICROSOFT and without prejudice to MICROSOFT's
right to take proceedings in relation hereto before any other court of competent
jurisdiction that the courts of Ireland shall have jurisdiction to hear and
determine and suit, action or proceedings that may arise out of or in connection
with this Agreement and for such purposes StarTek hereby irrevocably submits to
the jurisdiction of such courts. StarTek hereby irrevocably authorises and
appoints XXXX XXXXXXXX OF XXXXXXXX XXXXXXX SOLICITORS, XXXXXXX XXXXX, XXXXXXX
XXXX XXXX, XXXXXXXXXXX, XXXXXX 0 (or such other person resident in Ireland as it
may by notice to MICROSOFT substitute) (the "Process Agent") to accept service
of all legal process arising out of or in connection with this Agreement and
service on the Process Agent (or such substitute as aforesaid) shall be deemed
service on StarTek. StarTek agrees that failure by its Process Agent to notify
it of the process will not invalidate the proceedings concerned.
(3) MICROSOFT CORPORATION, AFFILIATES - THIRD PARTY
BENEFICIARY. StarTek acknowledges and agrees that the benefit of certain of the
provisions of this Agreement are expressed to be for not only MICROSOFT but also
for Microsoft Corporation, affiliates of Microsoft Corporation, licensors of
Microsoft Corporation and/or MICROSOFT and any of its of their officers or
directors. StarTek further acknowledges that each and any of the foregoing shall
be entitled, in its or their own right, to require by StarTek the due
performance of each such provision as aforesaid and to this end that MICROSOFT
is entering into this Agreement not only in its own right, but also as trustee
and agent for each of Microsoft Corporation, its affiliates, licensors of
Microsoft Corporation and/or MICROSOFT and any of its or their officers or
directors.
(4) NO PARTNERSHIP/JOINT VENTURE/AGENCY/FRANCHISE. This
Agreement shall not be construed as creating a partnership, joint venture,
employer-employee or agency relationship or as granting a franchise.
(5) SEVERABILITY. If any provision of this Agreement shall be
held by a court of competent jurisdiction to be illegal, invalid or
unenforceable, the remaining provisions shall remain in full force and effect.
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(6) ATTORNEYS' FEES. If any party employs attorneys to enforce
any rights arising out of or relating to Agreement, the prevailing party shall
be entitled to recover its reasonable attorneys' fees, costs and other expenses.
(7) WAIVER. No waiver of any breach of any provision of this
Agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof, and no waiver shall be
effective unless made in writing and signed by an authorized representative of
the waiving party.
(8) SECTION HEADINGS. The Section headings used in this
Agreement are intended for convenience only and shall not be deemed to supersede
or modify any provisions.
(9) GOVERNMENTAL APPROVALS. Each party shall, at its own
expense, obtain and arrange for the maintenance in full force and effect of any
and all governmental approvals, consents, licenses, authorizations,
declarations, filings, and registrations as may be necessary or advisable for
the performance of all of the terms and conditions of this Agreement.
(10) FORCE MAJEURE.
a) Except as otherwise provided in this
Section 16(j), neither party shall be in default by
reason of any failure in performance of this
Agreement, if such failure arises out of causes
beyond the control and without the fault or
negligence of the involving party including, but not
restricted to, acts of God, acts of the Government,
fires, floods, epidemics, quarantine restrictions,
strikes, lock-outs, freight embargoes and unusually
severe weather. This Section shall also apply to
StarTek's contractors where a contractor's failure
arises out of the same causes, except insofar as
StarTek could have reasonably been expected to obtain
contractor supply from alternate sources.
b) StarTek shall give a written notice to
MICROSOFT within * after StarTek becomes aware of any
circumstances or event which may reasonably be
anticipated to cause or constitute, or which
constitute a force majeure as described in Section
16(j)(1), above. Such notice shall contain a detailed
description of the delay and of the affected portion
of the Agreement. Within a further * after such
notice, StarTek shall deliver a detailed written
description of the work-around plan, alternative
sources, and any other reasonable means that StarTek
shall, at its own cost, use to prevent such further
delay.
c) If the delivery of any Products shall be
delayed by reason of force majeure for more than *
beyond when delivery was scheduled, MICROSOFT may
upon written notice to StarTek with respect to the
undelivered Products, either terminate any or all
this Agreement hereunder. In the event of such
termination, the parties shall comply with their
obligations as specified in Section 12.
(11) EXHIBIT(S). The following exhibits, as amended from time
to time, are incorporated into this Agreement by this reference ("Exhibit(s)"):
EXHIBIT DESCRIPTION
A Statement of Work
B Price and Payment Terms
C Insurance
D Required Tax Information
E Approved Subcontractor List
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All references to the "Agreement" are references to this Agreement and all
Exhibits, all as amended from time to time. To the extent that any provision
contained in any Exhibit is inconsistent or conflicts with this Agreement
exclusive of the Exhibits, the provisions of this Agreement (exclusive of the
Exhibits) shall control.
(12) PRESS RELEASES/PUBLICITY. StarTek shall not issue any new
press releases or publicity that may relate or refer to this Agreement. Any
press statements shall only be released by joint agreement of the parties,
except as legally required by the SEC or NYSE. StarTek shall not use the name
"Microsoft" or "Microsoft Corporation" in any advertisements. StarTek may,
however, with the prior written consent of MICROSOFT, use the name "Microsoft
Corporation" in brochures, written response to requests for client lists as part
of requests for proposals, requests for information, etc. StarTek may also use
the name "Microsoft" or "Microsoft Corporation" in verbal client presentations.
(13) INSURANCE. Prior to the commencement of the Services to
be performed hereunder and throughout the entire period of performance by
StarTek, StarTek shall procure and maintain the insurance coverage set forth in
Exhibit C. Such insurance shall be in a form and with insurers acceptable to
MICROSOFT, and shall comply with the minimum requirements set forth in Exhibit
C.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above. All signed copies of this Agreement shall be deemed originals.
MICROSOFT IRELAND OPERATIONS LIMITED STARTEK INC.
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxx
-------------------------------------- ----------------------------------------
By By
Xxxxx Xxxxxx Xxxxxxx X. Xxxxxx
-------------------------------------- ----------------------------------------
Name (Print) Name (Print)
General Manager President and Chief Executive Officer
-------------------------------------- ----------------------------------------
Title Title
June 10, 1999 June 10, 1999
-------------------------------------- ----------------------------------------
Date Date
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EXHIBIT A
STARTEK EUROPE, INC. TURNKEY
STATEMENT OF WORK
FEBRUARY 3, 1999
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EXHIBIT A
STARTEK EUROPE MFG. TURNKEY STATEMENT OF WORK
For purposes of this Exhibit, "MS" shall mean Microsoft Ireland Operations
Limited and "Company" shall mean StarTek Europe, Inc.. All other capitalized
terms not otherwise defined in this Exhibit shall have the same meaning as set
forth in the Agreement to which this is an Exhibit.
1. GENERAL:
1.1 Purpose and Requirement Scope:
This document describes the requirements that Company must
meet as a manufacturer and service provider to MS. The general
requirements under this agreement are:
1.1.1 Source and procure raw material in accordance with MS
specifications.
1.1.2 Build finished package product in accordance with MS
specifications in the quantities ordered by MS
pursuant to a Purchase Order.
1.1.3 Make Finished Product Units available to a MS
designated distribution center.
1.1.4 Provide information regarding production and delivery
as required.
2. SCOPE OF BUSINESS:
2.1 MS MAY ELECT TO SPLIT THE BOOK OF BUSINESS BETWEEN TWO OR MORE
COMPANIES.
3. FORECASTS:
3.1 * Rolling Forecast:
MS will provide a * rolling forecast for * for all Products
anticipated to be built by Company. This forecast may be used
by Company at Company's discretion for planning and procuring
raw materials and Company relies on such forecast entirely at
its own risk. MS may change the forecast up to the issuance of
a purchase order with no penalty or responsibility for any raw
materials, Product Components, or Product acquired/built to
such forecast.
3.2 Manufacturing Systems:
Company shall perform procurement, scheduling and
manufacturing activities on their own manufacturing system(s).
MS will not be responsible for providing Company with any
manufacturing system.
4. PURCHASE ORDER PROCEDURES:
4.1 Purchase Orders (PO):
During the term of the Agreement, MS will issue a * Purchase
Order (PO) for Finished Product Units to Company on * for *.
Each PO so issued shall require Finished Product Units to be
prepared and delivered to the distribution center * from the
PO issue date. The purchase order will include but not be
limited to the SKU, quantity, price and required delivery
date. MS may prioritize Products on the PO so Company will be
able to build more urgent requirements first. The purchase
order will officially authorize Company to manufacture MS
Products. MS accepts ownership and liability for raw materials
and finished goods inventory that have been purchased and/or
built in support of the * PO.
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4.2 ONCE MS HAS ISSUED A PO, MS MAY CHANGE THE BUILD REQUIREMENTS
OR ISSUE ENGINEERING CHANGE NOTICES (ECN) CORRESPONDING TO
THAT PO, BUT RAW MATERIALS PROCURED BY COMPANY TO FULFILL SUCH
PO THAT ARE LEFT UNUSED WILL BE THE RESPONSIBILITY OF MS.
COMPANY MAY CHARGE MS FOR THE STORAGE OF ANY SUCH UNUSED RAW
MATERIALS REMAINING IN COMPANY'S WAREHOUSE * AFTER FULFILLMENT
OF THE PO. MS WILL REIMBURSE COMPANY FOR THE COST OF SUCH RAW
MATERIALS IF THEY REMAIN UNUSED. IN ORDER TO BE REIMBURSED BY
MS, COMPANY MUST PROVIDE A RAW MATERIAL INVENTORY AGE REPORT
FOR WHICH MS OWNS LIABILITY UPON EXPIRATION OF THE * HOLDING
PERIOD. IN CASE OF AN ECN THAT STOPS AND/OR STARTS A
COMPONENT, COMPANY MUST NOTIFY MS OF THE RELATED CHARGES
WITHIN * OF THE CHANGE ORDER. RELATED CHARGES WILL BE TRACKED
AND REVIEWED AT THE QUARTERLY BUSINESS REVIEW ("QBR"). THIS
NOTIFICATION MUST INCLUDE THE MS ECN#, THE COMPONENT PART
NUMBER AND THE QUANTITY THAT MS IS LIABLE FOR. MS WILL
DETERMINE AND COMMUNICATE IN WRITING WHETHER OR NOT TO SCRAP
ANY RAW MATERIAL OR FINISHED GOODS AND REIMBURSE COMPANY
ACCORDINGLY.
MS intends to remit payment to Company, * or via the autovoucher process, for
all Finished Product Units upon receipt of the advanced ship notice from the
applicable distribution turnkey vendor ("DTV"). All invoices shall be expressed
in Euros. All error-free invoices submitted by Company will be paid within the
payment terms of the Agreement. When invoice discrepancies are found, invoices
will be immediately returned to Company for correction and re-submittal.
Corrected invoices submitted to MS must reflect a revised invoice date (not the
original invoice date). It is in Company's best interest to submit error free
invoices to MS for prompt payment, as invoice errors will delay MS payment to
Company. Microsoft will make payments for services in Euros.
5. FINISHED GOODS TRANSACTION REPORT AND RECEIPTS:
5.1 WHEN PRODUCTION HAS BEEN COMPLETED PER THE MS PURCHASE ORDER,
COMPANY MUST NOTIFY DTV OF THE COMPLETED FINISHED GOODS.
5.1.1 Company will send a * build order report to the DTV .
When finished goods have been built, Company will
provide the DTV with an ASN in accordance with MS
specifications. The DTV plans to scan the product
into its system within * of arrival and send a
receipt confirmation to MS and Company by * . Company
will review the receipt confirmation and resolve any
discrepancies with the DTV within *
5.1.2 Company must notify MS * of any inventory movements
that may require inventory adjustments. Adjustments
include but are not limited to quality issues, cycle
count adjustments, first article sample, rework and
site to site stock transfers.
6. PROCUREMENT:
6.1 COMPANY WILL BE RESPONSIBLE FOR PROCURING ALL RAW MATERIALS
FOR ASSEMBLY. RAW MATERIALS PROCURED MUST MEET MS GLOBAL
QUALITY SPECIFICATIONS FOR FULL PACKAGED PRODUCT. MS MAY AT
TIMES DESIGNATE `APPROVED SUBCONTRACTORS' FOR CERTAIN RAW
MATERIAL COMPONENTS SUCH AS SECURITY COMPONENTS, THIRD PARTY
PIECES AND HARDWARE. WHERE MS HAS MADE SUCH A DESIGNATION IN
RESPECT OF A PARTICULAR RAW MATERIAL COMPONENT, COMPANY SHALL
OBTAIN THAT RAW MATERIAL COMPONENT FROM THE SOURCE THAT HAS
BEEN DESIGNATED BY MS ONLY AND SHALL NOT OBTAIN THAT RAW
MATERIAL COMPONENT FROM ANY OTHER SOURCE WITHOUT THE PRIOR
EXPRESS WRITTEN APPROVAL OF MS. MS MAY AT TIMES SUPPLY RAW
MATERIAL TO COMPANY. COMPANY WILL BE NOTIFIED OF THE APPROVED
SUBCONTRACTORS. ALL RAW MATERIALS THAT COMPANY PROCURES ARE
SUBJECT TO AUDIT WITHOUT NOTICE AT COMPANY'S FACILITY FOR
ADHERENCE TO MS GLOBAL QUALITY STANDARDS FOR FULL PACKAGED
PRODUCT *.
6.2 Pre-Press Work, Engineering, and Die Charges:
These are costs associated with the output of electronic files
to plate ready film, color separations, proofs prototype, die
charges and are not to be calculated in the unit or component
cost of the part.
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These are to be billed on a separate invoice to MS noting the
MS part number to which the costs are related to. Costs
associated with frequently performed services such as
outputting post-script files for manual text, preparing
provided film for plate imposition etc. shall be charged at
agreed to rates. Charges for other more non-standard goods and
services above and beyond agreed rates shall be billed *
provided Company can demonstrate that these charges are
competitive for similar goods and services within the region.
Where these services are provided to or on behalf of Company
by a sub-contractor, approval supplier and/or MS authorised
replicator, Company shall xxxx MS for these services at the
same rate that Company was charged without additional cost or
xxxx up.
7. SUBCONTRACTING:
7.1 ANY REFERENCES TO SUBCONTRACTORS IN THIS EXHIBIT SHALL BE
SUBJECT TO THE REQUIREMENTS FOR SUBCONTRACTORS SET FORTH IN
THE AGREEMENT.
8. PRINTING:
8.1 Print and/or Procure:
Company must be capable of printing and/or procuring printed
materials per MS provided specifications and in quantities to
meet MS's finished goods production requirements.
8.2 Print Specifications:
Printed materials must meet the quality standards and
specifications identified in MS Print pecifications and in the
MS Quality Standards. For ongoing business Company will access
all required quality specifications using the Internet on *.
From time to time printed samples may be requested. Company
must supply samples to MS upon request.
8.3 Disposal of Printed Materials:
Company shall, or shall procure that the MS authorised
replicator, replicating printed material on behalf of Company,
shall ensure that all obsolete printed material is shredded
prior to disposal.
8.4 Monitor and Order Artwork For Printing:
It is Company's responsibility to *.
8.4.1 IDENTIFY COMPONENTS:
Company will receive a Xxxx of Materials (BOM) via
Electronic Delivery Tool (future) or email/fax * in
an Excel spreadsheet. Company will review the MS BOM
and determine whether or not artwork is needed.
8.4.2 TRACK COMPONENTS:
Company must have an internal mechanism to track
outstanding artwork and receipt dates for film. The
purpose of the tracking mechanism is to proactively
monitor whether outstanding artwork will impact
Product builds. It will also provide MS visibility to
ensure that MS deliverables are on schedule for
Product release.
8.4.3 MONITOR MS ARTWORK RELEASE:
Company will receive a * report via email from MS
print release lab. It is Company's responsibility to
monitor the * print release report. This report
notifies Company that the printed components have
been released to manufacturing.
8.4.4 PULLING ELECTRONIC FILES:
It is Company's responsibility to pull the electronic
files using Microsoft's Electronic Delivery Tool
(EDT). Electronic files include: 1-2 color print
components, print specifications, film order forms
(see below) and software images.
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8.4.5 ORDERING FILM:
For film-based components (over 2 colors) it is
Company's responsibility to pull film order forms
from EDT. Once the form is pulled, Company completes
all required information (film requirements, ship-to
address, required delivery date and MS PO# etc.) and
sends the film order via email directly to the
designated film house.
Company (or their print subcontractor) must report
all printed material discrepancies immediately to MS
* using an MS discrepant art report form.
8.5 Registration / License Card Printing:
Company shall have the capability to imprint or have printed
product part numbers; product ID numbers or other MS
identified information on MS registration cards and MS license
agreements.
8.6 CD Component Printing:
Company shall have the capability to print or shall approve a
subcontractor of supply of printed components included in
CD-ROMs. These components shall consistently meet the quality
requirements of MS CD ROM Quality Specifications *. For
ongoing business with MS Company will access all required
quality specifications using the Internet on *.
9. DISK DUPLICATION:
9.1 DUPLICATED DISKS MAY BE PRODUCED OR PROCURED BY COMPANY, AS
SET FORTH IN THE * PO.
9.2 Disk Duplication Capabilities:
Company or Company's duplication subcontractor must be capable
of duplicating diskettes in accordance with the requirements
identified in MS Global Quality standards. Company or
Company's duplication subcontractor duplication equipment must
have the ability to control all aspects of the quality of the
duplication process including image integrity, bit placement,
window margin, and revolutions per minute (RPM) of the drive
spindle.
9.3 Disk Duplication Quality Control:
Company or Company's duplication subcontractor must have *.
*shall be used to ensure that the proper image is being
duplicated.
9.4 Disk Duplication Processes:
Company or Company's duplication subcontractor must have:
9.4.1 A preventive maintenance program or backup
subcontracting program in place capable of preventing
disk-duplicating delays for finished goods
production.
9.4.2 A formal training program must be in place for all
duplication operators and support personnel.
9.4.3 A staff technically capable of supporting all of MS's
duplication requirements within the * production
variability range.
9.4.4 A write and verify process for all duplicated
Product.
9.4.5 The capability to utilize MS DMF, PID and other tools
when necessary.
9.5 Virus Prevention:
To ensure that every possible avenue to prevent MS deliverable
Product from being infected with a computer virus, Company
shall implement the following:
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9.5.1 *
*
9.5.1.1 *
9.5.1.2 *
9.5.1.3 *
9.5.1.4 *
9.5.1.5 *
9.6 Diskette Quality:
Company or Company's duplication subcontractor must perform
quality checks on duplicated disks. Diskettes shall be
duplicated and verified in accordance with the MS Floppy
Diskette workmanship specification (S000257). Company must be
capable of tracking and reporting duplication performance
data.
9.7 Customer Master Disk Handling:
Company or Company's duplication subcontractor must have the
capability of receiving software master images *. Company or
Company's duplication subcontractor shall ensure proper
handling, storage, retrieval and control of the master disk(s)
provided or created to ensure the integrity of the software
images.
9.8 Disk Copy Protection and Serialization:
Company or Company's duplication subcontractor disk
duplication process must be capable of supporting disk copy
protection and *.
9.9 Disk Labeling and Collation:
9.9.1 LABEL IMAGES:
MS will provide all label images *.
9.9.2 LABEL PRINTERS:
Company or Company's duplication subcontractor shall
print *.
9.9.3 LABELERS:
Company or Company's duplication subcontractor's
labeling equipment and/or procedures shall be capable
of consistently meeting or exceeding MS's label
placement specification as described in the *. For
ongoing business with MS Company will access all
required quality specifications using the Internet on
*.
9.9.4 COLLATION:
Company or Company's duplication subcontractor shall
have sufficient and appropriate process equipment to
seal collated disk sets into polyvinyl bags. Company
is responsible for ensuring that collation process
for diskettes meets MS Floppy Diskette workmanship
specification (S000257).
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10. CD REPLICATION:
10.1 CDs MAY BE PRODUCED OR PROCURED BY COMPANY, AS SET FORTH IN
THE * PO. COMPANY OR COMPANY'S CD SUBCONTRACTOR SHALL HAVE
DOCUMENTED PROCESSES AND APPROPRIATE EQUIPMENT TO EFFECTIVELY
PRODUCE CD-ROM'S AND ASSOCIATED CD COMPONENTS WHICH
CONSISTENTLY MEET OR EXCEED THE REQUIREMENTS OF THE MS GLOBAL
QUALITY SPECIFICATIONS FOR CD ROM. COMPANY OR COMPANY'S CD
SUBCONTRACTOR AGREES TO PERFORM ALL REQUIRED MAINTENANCE ON
THE EQUIPMENT AT ITS OWN COST. COMPANY OR COMPANY'S CD
SUBCONTRACTOR SHALL HAVE A SECURE PROCESS AND LOCATION TO HOLD
CD-ROMS AND MATERIAL UNTIL THEY CAN BE RENDERED UNUSABLE OR
RECYCLED. WHEN COMPANY PRODUCES OR PROCURES CDs, THE FOLLOWING
APPLY:
10.2 CD-ROM Production Processes:
Company or Company's CD subcontractor shall have documented
processes for the following:
10.2.1 A preventative maintenance program or backup
subcontracting program in place capable of preventing
delays for finished goods production.
10.2.2 A formal training program in place for all CD
operations (Premastering, Mastering, and Replication)
and support personnel.
10.2.3 A staff technically capable of supporting all of MS's
CD requirements within the * production variability
range.
10.3 CD Handling of CD-ROM Masters:
Company or Company's CD subcontractor shall have documented
procedures in place, which ensure proper handling, storage,
and retrieval of MS supplied CD master files.
10.4 CD Anti-Piracy and * :
Company or Company's CD subcontractor shall be capable of
supporting Anti-Piracy initiatives and * applicable to CD-ROMs
upon MS request.
10.4.1 Company shall procure that the MS authorised
replicator replicating CD-ROMs on behalf of Company
shall maintain records of all PID numbers assigned at
SKU, CD-ROMs set and CD-ROMs assembly level. Company
shall maintain such records in electronic format for
a period of * from the relevant Purchase Order and
shall make such records available to MS within * of a
request from MS. Company shall procure that the MS
authorised replicator replicating CD-ROMs on behalf
of Company shall comply with the provisions of this
Section 10.3.2.
10.4.2 Company shall, and shall procure that the MS
authorised replicator replicating CD-ROMs on behalf
of Company, ensure that PID numbers are always
unique, never duplicated and never misallocated.
10.5 CD-ROM Quality Control:
Company or Company's CD subcontractor shall have a documented
verification process in place to ensure the integrity of the
replicated CD-ROM matches the original supplied by MS. In
addition, Company or Company's CD subcontractor of supply
shall have documented and implemented processes to verify *
parameters which ensure compliance to MS Global
Specifications. Company will access all required quality
specifications using the Internet on *. Company or Company's
CD subcontractor must be capable of tracking and reporting CD
quality data to Ms
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10.6 CD LABEL Screen Printing:
Company or Company's CD subcontractor, should have a process
to receive CD label images *. Process must be established to
ensure the correct label image is applied to the correct CD
title. Processes must prevent any CD's used in the setup of
the print processes *.
10.7 *
11. PRODUCTION:
11.1 Assembly Capability:
If MS demand exceeds Company's capacity and subcontracting is
necessary to meet this demand, MS must be notified prior to
proceeding with off-site builds. The MS Global Quality
Specifications for full packaged Products as stated in the *
directory must be met.
11.2 *
Company shall have the proper equipment to make * for retail
products and shippers in accordance with MS specifications *.
11.3 Shrink-Wrapping:
Company shall be capable of shrink-wrapping all sizes of
Products, in accordance with *.
11.4 Assembly Quality:
Company shall perform in-process and final verifications of
assembled Products to ensure compliance to the MS requirements
and specifications. The standards included in First Article
Inspection Standards for Assembled Product will be used for
initial build of each Product.
11.5 Bundling:
MS may notify Company that a bundling operation is required
and will provide Company with SKU number, quantity and
specific bundling instructions. Company shall provide the MS
Vendor Account Manager (VAM) with a firm fixed price quotation
for the bundling effort within *in sufficient detail to allow
MS to perform an analysis of the major cost elements. The VAM
will provide Company with written authorization to proceed at
the agreed upon price. Company shall be responsible for
bundling the Products in accordance with the MS provided
bundling instructions and submitting an invoice to the VAM at
the agreed upon price. Company may be required to purchase
finished goods and/or raw materials from other Companies to
fulfill the bundling requirement(s).
11.6 Rework:
MS may notify Company that rework is required and will provide
Company with SKU number, quantity and requested completion
date. Company shall provide the MS VAM with a firm fixed price
quotation for the rework effort within *, in sufficient detail
to allow MS perform an analysis of the major cost elements.
The VAM will provide Company with written authorization to
proceed at the agreed upon price. Company shall be responsible
for reworking the Products in accordance with the MS BOM and
submitting an invoice to the VAM at the agreed upon price. A
touch is defined as one activity per component for pricing
purposes.
11.7 Orders Requested Prior to Normal Lead-Time:
There will be situations where MS will request orders to be
built in less than the normal * lead-time. (Please reference
section 4.1 hereof). When MS requests such an order, Company
will reply with at least but not limited to two options. One
option will be the best date based on a non-cost impact to the
production schedule. The second option will be the best date
with additional costs incurred. This will give MS the
opportunity to decide which option best suits the situation.
These orders will be communicated to Company by the MS VAM in
situations where
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faster Product deliveries are required due to urgent customer
requests. The MS VAM and Company shall mutually agree that the
option taken is acceptable and the MS VAM will provide
authorization to proceed.
11.8 Scrap Process:
Sub-contractors must have written authorization from MS VAM
prior to scrapping and/or disposing of MS finished goods or
components.
12. DELIVERY REQUIREMENTS:
12.1 Preparation:
Company is responsible for making the Finished Product Units
and shipment to the Distribution Center. This preparation
includes ensuring that finished goods are correctly
palletized, shrink-wrapped and ready for transit to the
Distribution Center.
12.2 Pallet Loading:
Company shall adhere to the MS Global specifications for
pallet configuration specifications when stacking Product.
12.3 Finished Goods Handling:
Company shall have proper handling procedures for finished
goods to prevent loss of damage between assembly and pick-up
by the Distribution Center.
12.4 Advance Shipment Notification:
Company is responsible for providing an electronic
notification to the Distribution Center as soon as shipment is
in transit.
12.5 Ship Direct:
On occasion, the manufacturing supplier will be requested to
prepare Product for direct shipment to the distributor. MS
designated carrier will pick up Product for direct shipment.
Company will invoice upon shipment. Upon doing any direct
shipment, company will provide MS with electronic notification
containing all relevant shipment information.
13. REPORTING / COMMUNICATION REQUIREMENTS:
13.1 Manufacturing Delay
*.
13.2 Reporting:
In addition, Company shall provide MS with the reports
specified herein (each a "Report") with respect to all
Products which Company manufactures. All Reports shall be
timely, complete, accurate and comply with generally accepted
accounting principles (where applicable). Each Report, whether
in electronic or paper format, shall meet the standard report
requirements identified for the Report by MS and shall be
delivered *, as specified herein. Company shall use its best
efforts to correct any errors in a Report the next day
following MS's notice specifying the item in respect of which
an error may have occurred. Company shall deliver each Report,
and all supporting documentation therefor, by the time and on
the Business Day specified below. A "Business Day" means each
day on which Company or MS is open for business.
13.3 Company shall provide:
(a) *
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13.4 MS shall provide:
(a) *
14. QUALITY:
14.1 ISO Certification:
Company shall remain ISO certified during the period of the
Agreement.
14.2 Quality Records:
Company shall maintain records of inspection, repairs, reworks
and tests for the term of the Agreement. Records shall be made
available to MS upon request
14.3 *
14.4 *
*
14.5 Environmental Policy
Company shall implement and maintain, and shall procure that
its sub-contractors, approved suppliers and MICROSOFT
Authorised Replicators implement and maintain, an
environmental policy which complies with all applicable
environmental legislation. MS shall be furnished with written
copies of all environmental policies to which this Section
14.6 applies.
15. * MANAGEMENT:
15.1 *
Company will use MS supplied Xxxx of Materials (BOM's) and
CAD's as a reference to ensure proper assembly of Product as
specified in MS Global Quality Specifications web site *.
Company must inspect and approve all new releases and first
time builds per first article process and shall retain its
inspection records for a period of * and shall retain its
first-off samples for a period of *. Company shall make all
inspection records and first-off samples available to MS
within * of a request from MS.
15.2 Changes TO BOM's and CAD's:
All changes to the configuration of Products will be managed
through the MS Configuration group. Company must manage all
resulting changes to Bills of Material accordingly. Company
may make no changes to Product configuration or content
without written authorization from MS, however, Company is
encouraged to suggest changes that * or the Product. Any
discrepancies between MS's BOM, CAD or Kit and Company's BOM
shall be resolved prior to each build.
15.3 Configuration Record Retention:
Company shall maintain records of * used to assemble Product
for a period of *. All records will be made available to MS
upon request.
16. INFORMATION TECHNOLOGY:
16.1 Infrastructure Requirements:
Company's Facility shall have an infrastructure capable of
supporting a variety of data communications required to
Manufacture Product. This includes the ability to connect to
MS's
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external network. External network connections will be used to
transfer information about Product builds.
16.2 ELECTRONIC DATA INTERCHANGE (EDI):
The following EDI transactions may be required for ongoing
business with MS:
(a) 846 Inventory Advice
(b) 850 Build PO
(c) 856 Pre-Receipt Notification (ASN)
(d) 888 SKU Master Update
(e) 944 Receipt Advice
(f) Advanced Ship Notice (EDI 856)
(g) PO Receipt (EDI 861)
16.3 Technical Personnel:
The information technology requirements outlined above are
deemed mission critical. Company shall have in-house or
readily available technical support at Company's Facility.
These Company personnel will work with MS personnel to ensure
that the Facility is properly set up to communicate with MS.
MS will work with Company to establish competency with any
non-commercially available MS-specific software that may be
used in the operation. Company will be responsible for
on-going training of replacement or additional personnel used
to support the operation.
16.4 Data Exchanges:
Data exchanges will be required throughout the term of the
Agreement. Exchanges will occur primarily through * and may
include, but are not be limited to, * and routine information
required to Manufacture Product. EDI capability is desired but
is not required at startup of Company operation. MS may
support EDIFACT transactions in the future.
16.5 System Alternatives:
MS may wish to employ any or all of the following system
alternatives:
(a) *
(b) *
(c) *
(d) *
16.6 *
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17. MANAGEMENT:
17.1 Meetings and Reviews:
Company will meet with designated MS team * for business
reviews. These meetings will include a Company performance
review, pricing reviews, continuous improvement projects,
management status reviews, cost reduction initiatives and
other operational areas and issues. * business reviews (QBR)
may be held at Company's Facility, MS's facility or by video
teleconference (VTC).
17.2 Metrics:
Unit Fill Rate%: Goal = *
Number of actual units completed on or before the p.o. due
date, divided by total number of units ordered
Line Fill Rate%: Goal = *
Number of lines completed at *% on or before the p.o. due
date, divided by total number of lines on the p.o. .
(NOTE: Lines with orders exceeding * units count as completed
if filled at *% or greater. Lines with order quantities of
less than * units need to be filled at *%).
EXAMPLE: If you have a PO for * line items for * units each,
and * of the * lines shipped the * units, but the * line item
shipped * units only - the Unit Fill Rate = *% (*) Line Fill
rate = *% (*). No credit would be given for the * line. If *
lines out of the * lines shipped * units = Line Item Fill Rate
= *%.
DPPM
Applies to functional errors only. Goal: *
18. MICROSOFT GLOBAL SPECIFICATIONS:
18.1 MICROSOFT GLOBAL SPECIFICATIONS FOR RETAIL FULL PACKAGED
PRODUCTS INCLUDE WORKMANSHIP AND ENGINEERING SPECIFICATIONS.
FOR ONGOING BUSINESS WITH MS, THE SELECTED COMPANY(S) WILL
ACCESS ALL REQUIRED QUALITY SPECIFICATIONS USING THE INTERNET
ON *. WORKMANSHIP AND ENGINEERING SPECIFICATIONS ARE AVAILABLE
ONLINE AT *. CHANGES TO * WILL BE COMMUNICATED MONTHLY TO
COMPANY AND AS MAJOR REVISIONS OCCUR.
19. COMMON MICROSOFT ACRONYMS:
(a) BOM Xxxx of Materials
(b) CAD Computer Aided Drawing
(c) COGS Cost of Goods Sold
(d) CSP Customer Service Pack's
(e) DC Distribution Center
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(f) DMF Distributed Media Format
(g) DTV Distribution Turnkey Vendor
(h) ECD Engineering Change Date
(i) ECN Engineering Change Notice
(j) ECR Engineering Change Request
(k) EDI Electronic Data Interchange
(l) EDT Electronic Delivery Tool
(m) FINOPS Financial Operations
(n) ISO International Organization of Standards
(o) ITG Microsoft Information Technology Group
(p) MLP Microsoft License Pack's
(q) MS Microsoft
(r) MTV Manufacturing Turnkey Vendor
(s) NDA Non-Disclosure Agreement
(t) PDM Product Data Manager
(u) PID Product Identifier
(v) PO Purchase Order
(w) RMA Returned Merchandise Authorization
(x) UPC Universal Product Code
(y) VAM Vendor Account Manager
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EXHIBIT B
PRICE AND PAYMENT TERMS
PRICE AND PAYMENT TERMS FOR PRODUCT COMPONENTS
(i) During the term of this Agreement, MS will issue
* Purchase Orders (P.O.'s) for Product Components to StarTek
on each *. Each P.O. so issued shall require delivery of the
Product Components within * of the P.O. date. If assembly
services are also ordered (see Exhibit C) as part of the P.O.,
each P.O. so issued shall require delivery of the Product
Components so ordered as part of the finished Products within
* of the P.O. date. All receipts to the P.O. entered by the
Shipping Location by close of business * will be paid via the
MS autovoucher process.
(ii) For each P.O. issued under this Agreement for
Product Components, MS agrees to pay StarTek a per Product
Component price (e.g., per each Jewel Case Component ordered)
to be calculated as follows:
*
Per Product Component Price =
*
(iii) *
Definitions:
* *
* *
* *
* *
* *
* *
* *
* *
(iv) StarTek may be required to produce Product
Components for new MS Product SKUs at any time during the term
of this Agreement. Pricing for any such Product Components
will be determined by using the formula set forth in Section 2
above. StarTek agrees to make all reasonable effort to provide
MS with Product Component pricing for new MS Product SKUs
within * of receiving the MS Product SKU specification and BOM
information from MS.
(v) From time to time BOM changes occur that may add
or delete components from the MS Product SKU. These additions
or deletions to the MS Product * shall be reflected
accordingly in the material and labor *.
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EXHIBIT C
INSURANCE
This Exhibit "C" is a continuation of that certain Manufacturing Agreement dated
_______________ between MICROSOFT IRELAND OPERATIONS LIMITED ("MICROSOFT") and
StarTek Inc. ("STARTEK"). Capitalized terms not otherwise defined in this
Exhibit shall have the same meaning as set forth in the Agreement to which this
document is an Exhibit.
1. INSURANCE
Prior to the commencement of the work to be performed hereunder and
throughout the entire period of performance by STARTEK, STARTEK shall
procure and maintain insurance coverage as will reasonably respond to
claims and liabilities that STARTEK may encounter in the course of its
business. Such insurance shall be in a form and with insurers
acceptable to MICROSOFT, and shall comply with the following minimum
requirements:
1.1 Insurance for loss or damage to property.
STARTEK shall obtain and maintain "All Risks" Property
Insurance and marine insurance coverages covering it's
liability for loss or damage to Products and any Microsoft
property as detailed in Section 11 of this Agreement in its
possession or control, including but not limited to loss or
damage that results from the fraudulent, dishonest, or
criminal acts of STARTEK, its subcontractors, or employees of
STARTEK and its subcontractors. Such policies shall be written
with insurers and on policy forms reasonably acceptable to
MICROSOFT and shall provide limits adequate to cover the full
value of Product(s) at risk, and proceeds of such policies
shall be payable in *. STARTEK shall cause its insurers to
endorse the policies as follows:
a) MICROSOFT shall be named as loss payee to the extent
of MICROSOFT's interest in Product(s),
b) coverage provided by the policy shall be primary to
and not contributory with coverage maintained by
MICROSOFT,
c) rights of subrogation against Microsoft are to be
waived, and
d) such policy may not be canceled or materially altered
to the detriment of MICROSOFT * advance notice to
MICROSOFT.
1.2 Comprehensive General Liability.
STARTEK shall obtain and maintain a policy of "general",
"public", or "commercial" liability insurance written on an
"occurrence form" with limits of not less than * each
occurrence for bodily injury and property damage. The policy
shall provide coverage for worldwide defense, premises and
operations, contractual liability (including specifically the
insurable contractual liability assumed in this Agreement) and
products and completed operations. THE POLICY SHOULD NOT
EXCLUDE COVERAGE FOR THE LATERAL SUPPORT, UNDERGROUND,
EXPLOSION OR COLLAPSE HAZARDS.
MICROSOFT AND ITS DIRECTORS, OFFICERS AND EMPLOYEES, ARE TO BE
INCLUDED UNDER SUCH POLICY AS ADDITIONAL INSUREDS TO THE
EXTENT OF CONTRACTUAL LIABILITY ASSUMED BY STARTEK IN THIS
SECTION 1.2, WITH COVERAGE TO BE PRIMARY AND NOT CONTRIBUTORY
WITH ANY COVERAGE MAINTAINED BY MICROSOFT OR ON BEHALF OF
MICROSOFT. THE POLICY SHALL CONTAIN A SEVERABILITY OF
INTERESTS PROVISION IN FAVOUR OF THE ADDITIONAL INSUREDS.
1.3 Workers' Compensation/Health and Safety Laws and Regulations.
STARTEK shall at all times comply to the full extent with all
applicable workers' compensation, occupational disease and
occupational health and safety laws, statutes and regulations
to the full
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extent applicable and shall indemnify and keep MICROSOFT
indemnified against all claims, judgements, decrees, orders,
awards, costs, liabilities and expenses howsoever arising
under or by virtue of such laws, statues and regulations.
1.4 Employers Liability.
STARTEK, in addition to complying with the provisions of
Section 1.3 above, shall maintain coverage for employers
liability with a policy limit of not less than *.
1.5 Automobile Liability
If vehicles will be used in connection with the performance of
the Services, STARTEK shall maintain automobile liability
insurance covering all owned, rented, and non-owned vehicles
operated by STARTEK with policy limits of not less than * per
accident for property damage and unlimited liability per
accident for bodily injury. MICROSOFT and its directors,
officers and employees are to be included as additional
insureds in such policy, with coverage to be primary and not
contributory with any coverage maintained by MICROSOFT or on
behalf of MICROSOFT. The policy shall contain a severability
of interests provision in favour of the additional insureds
1.6 Property Insurance
STARTEK shall obtain and maintain a policy of "All Risks"
property insurance in respect of its buildings, premises,
plant, machinery, equipment and stock with policy limits of
not less *.
1.7 General Requirements Applicable to All Above Coverages -
Any deductible or retention in excess of * per
occurrence or accident under any of the
above-required coverages shall be subject to the
approval of MICROSOFT prior to the commencement of
the Services.
(b) All deductibles and premiums associated with the
above coverages shall be the responsibility of
STARTEK.
(c) If in the opinion of MICROSOFT the amount of
liability coverage is not adequate by reason of
inflationary pressures or experience or the nature
and content of STARTEK activities, STARTEK shall
increase the insurance coverage as required by
MICROSOFT.
(d) At the request of Microsoft, STARTEK shall provide to
MICROSOFT, or make available for MICROSOFT review,
certified copies of the insurance policies required
herein.
(e) The use of umbrella or excess liability insurance to
achieve the above required liability limits shall be
permitted by MICROSOFT, provided that such umbrella
or excess insurance results in the same type and
amounts of coverage as required under the required
individual policies identified above.
(f) It is the intent of MICROSOFT that the above
insurance requirements will assure adequate resources
for victim compensation and will serve to minimise
its involvement and liability arising out of
performance of this Agreement by STARTEK.
1.8 Sub-Contractors
If STARTEK sub-contracts part of the Services to a third party
pursuant to the provisions of Section 5(a) and Section 16(a),
then STARTEK must ensure before such third party commences to
perform those Services that such third party has, and will
maintain in force for the period that they are so engaged as
sub-contractor by STARTEK, insurance cover and insurance
policies with equivalent limits and on the same terms as
specified in this Exhibit C. In the event that any such third
party does not have such insurance cover and/or insurance
policies in place, STARTEK shall
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indemnify and hold harmless MICROSOFT and its directors,
officers and employees from any and all loss arising.
1.9 Certificates of Insurance
Prior to the commencement of the Services, STARTEK shall
provide to MICROSOFT certificates of insurance evidencing full
compliance with the insurance requirements contained herein.
Where STARTEK sub-contracts part of the Services to a third
party pursuant to Section 5(a) and Section 16(a), STARTEK
shall provide to MICROSOFT certificates of insurance
evidencing full compliance by such third party with the
insurance requirements specified in this Exhibit C. All such
certificates shall be kept current throughout the entire
period of performance, and shall provide for at least *
advance notice to MICROSOFT if the coverage is to be cancelled
so as not to comply with the foregoing requirements.
Where such insurance is to:
(1) include MICROSOFT as an additional insured,
(2) waive rights of subrogation, be indicated to
be primary to and not contributory with
insurance maintained by MICROSOFT or on
behalf of MICROSOFT and/or,
(4) contain a severability of interests
provision in favour of MICROSOFT,
the certificate shall expressly reflect in writing that the
policy contains language or endorsements that assure the
insurer's acceptance of such requirements.
FAILURE BY STARTEK, TO FURNISH CERTIFICATES OF INSURANCE OR
FAILURE BY MICROSOFT TO REQUEST SAME SHALL NOT CONSTITUTE A
WAIVER BY MICROSOFT OF THE INSURANCE REQUIREMENTS SET FORTH
HEREIN. IN THE EVENT OF SUCH FAILURE ON THE PART OF STARTEK OR
ITS PERMITTED SUB-CONTRACTORS TO PROVIDE THE CERTIFICATES AS
REQUIRED HEREIN, MICROSOFT EXPRESSLY RESERVES THE RIGHT TO
ENFORCE THESE REQUIREMENTS, AND IN THE EVENT OF LIABILITY OR
EXPENSE INCURRED BY MICROSOFT AS A RESULT OF SUCH FAILURE BY
STARTEK OR ANY PERMITTED SUB-CONTRACTOR, STARTEK HEREBY AGREES
TO INDEMNIFY MICROSOFT FOR ALL LIABILITY AND EXPENSE
(INCLUDING REASONABLE ATTORNEY'S FEES AND EXPENSES ASSOCIATED
WITH ESTABLISHING THE RIGHT TO INDEMNITY), INCURRED BY
MICROSOFT AS A RESULT OF SUCH FAILURE BY STARTEK OR ITS
PERMITTED SUB-CONTRACTORS.
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EXHIBIT D
REQUIRED TAX INFORMATION
During the term of this Agreement, StarTek agrees to provide MICROSOFT with such
information, as mutually agreed upon between the parties, that MICROSOFT
determines necessary for tax compliance and statutory reporting purposes. Such
information shall include, but may not be limited to the following:
A listing of all transactions, showing for each invoice:
- Invoice Number
- Date of Invoice
- Purchase Order Number(s)
- Total Charges Before *
- *
- Total Amount Due
The data provided in electronic format should agree with the information shown
on actual invoices issued to MICROSOFT.
If there are any transactions that are exempt from *, such transactions should
be reported separately (but the information required will still be listed as set
forth above, except that *).
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EXHIBIT E
APPROVED SUBCONTRACTOR LIST
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EXHIBIT F
CONFIDENTIALITY AGREEMENT
StarTek
[to be addressed to StarTek]
Dear Sirs
As [an employee], [agent], [sub-contractor], [consultant] [insert as
appropriate] of [Insert here name of StarTek] ("COMPANY") I acknowledge that I
may have direct or indirect access to, or that there may be disclosed or
released to me, information ("the Confidential Information") in relation to:-
*
Now in performance of the duties owed by me to COMPANY and in consideration of
the sum of * now paid to me by COMPANY (receipt whereof I hereby acknowledge) I
hereby undertake to and covenant with COMPANY that throughout the period of my
[employment], [agency], [sub-contractorship], [consultancy] [insert as
appropriate] and thereafter until such time as a written release shall have been
received by me from COMPANY in respect of this undertaking:-
(i) I will not at any time publish or disclose or permit to be published or
disclosed or make available to any person or permit to be made
available to any person any Confidential Information;
(ii) I shall treat in the strictest confidence all notes, memoranda,
documents, records and writing made, received or obtained by me
incorporating or recording any Confidential Information and these shall
be and remain the property of Microsoft Ireland Operations Ltd or
Microsoft Corporation or any of its or their affiliates (as the case
may be) and shall be delivered by me to Microsoft Ireland Operations
Ltd or Microsoft Corporation or any of its or their affiliates (as the
case may be) forthwith upon request;
(iii) in the event that any or all of COMPANY, Microsoft Ireland Operations
Ltd or Microsoft Corporation or any of its or their affiliates shall
have obtained any confidential or secret information from any third
party under an arrangement, agreement or obligation that includes any
restriction or obligation of non-disclosure of which I am or ought to
be aware I shall not without the prior specific consent of COMPANY,
Microsoft Ireland Operations Ltd or Microsoft Corporation or any of its
or their affiliates (as the case may be) at any time infringe such
restriction or obligation or do or permit to be done any act or suffer
any omission which would or may result directly or indirectly in
COMPANY, Microsoft Ireland Operations Ltd or Microsoft Corporation or
any of its or their affiliates (as the case may be) being in breach of
such restriction or obligation.
I hereby acknowledge and agree that each of the covenants contained above
constitutes an entirely separate and independent restriction on me and is
separate and severable and enforceable accordingly and that the duration, extent
and application of each of the covenants is no greater than is reasonably
necessary for the protection of the legitimate interests of COMPANY, Microsoft
Ireland Operations Ltd or Microsoft Corporation or any of its or their
affiliates and accordingly if any of the restrictions shall be adjudged by any
court of competent jurisdiction to be void or unenforceable but would be valid
and enforceable if part of the wording thereof was deleted and/or the period
thereof reduced and/or the geographical area or application thereof reduced in
scope, such restriction shall apply within the jurisdiction of that court with
such modifications as may be necessary to make it valid, effective and
enforceable.
I further acknowledge and agree that the benefit of each of the provisions of
this Agreement be and is hereby made available to each of Microsoft Corporation
and Microsoft Ireland Operations Ltd to the intent that each of them shall be
entitled in its own name and in its own right to require of me the due
performance of each such provision as aforesaid.
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SIGNED SEALED AND DELIVERED
by [Insert name of employee, agent, sub-contractor or consultant (as
appropriate)]
on the day of 199
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