Exhibit 10.11
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Form of Master Services Agreement
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This Agreement, dated as of __________ (the "Effective Date"), by and
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between TIBCO Finance Technology Inc., a Delaware corporation ("TFT"), and TIBCO
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Software Inc., a Delaware corporation ("TSI").
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WHEREAS, TFT and TSI have entered into an Amended and Restated License,
Maintenance and Distribution Agreement, dated May 28, 1999, as the same may be
further amended, the "Agreement"); and
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WHEREAS, TSI is currently contemplating an initial public offering, TFT has
moved to a new corporate headquarters, TFT and its affiliates and agents and
assigns (the "Providers") currently provide certain support services to the TSI,
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and TFT and TSI have agreed that the Providers from time to time will continue
to provide certain of such services to TSI or its designees (the "Recipients")
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after the Effective Date, all as more fully set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. Capitalized terms shall have the meanings ascribed to
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them in this Agreement.
2. Services to be Provided.
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(a) Services. At TSI's option, TFT hereby agrees to provide, or cause
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another Provider to provide, to the Recipient any one or more of the services as
listed and upon terms and conditions set forth in Schedules 1 through __ (the
"Services") for a period of time not to exceed the maximum term of one (1) year
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(unless otherwise expressly set forth for a longer period in any such Schedule
with respect to any such particular Service); provided, if TSI has requested
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Services pursuant to this Agreement for a term expiring prior to the maximum
term, such Recipient may extend such term at any time, provided that any such
extension shall not extend beyond the maximum term.
(b) Assistance. (i) Services and Dispute Resolution Coordination. In
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addition to the persons named in the Schedules, listed on Annex A attached
hereto are the persons who TSI and TFT have designated as knowledgeable persons
who will provide continuous oversight and coordination of, and communicate
concerning disputes with respect to, the Services, who will be available to the
Recipients and the Providers during normal business hours and who will be
responsible for providing for or delegating the provision of assistance
regarding the Services. (ii) Documentation. TFT will provide, or cause the
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Provider to provide, to the Recipient at its
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expense all service operating manuals and other materials relating to the
Services and, as reasonably requested by the Recipient, any supplements or
updates to the service operating manuals or other materials; subject to Section
10, the Recipient may duplicate the materials provided pursuant to this clause.
(c) Updating. The parties have exercised due diligence in preparing this
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Agreement and the Schedules, which Schedules are intended to describe all of the
Services currently provided by the Providers to TSI to the extent necessary to
conduct the business of TSI in all material respects as currently conducted but
the parties anticipate that the complexity of the transactions contemplated by
this Agreement may result in incomplete Schedules. Each party will promptly
notify the other if it becomes aware of additional items that were inadvertently
omitted from a Schedule, or additional information which, if known at the time a
Schedule was originally prepared, would have caused the parties to have prepared
the Schedule in a different manner. The parties will cooperate in good faith to
promptly update the Schedules as necessary and appropriate to reflect any
additional items or information that is discovered after the execution of this
Agreement; provided, however, that TFT shall not be obligated to materially
increase any of its obligations hereunder unless expressly agreed in writing by
TFT.
3. Term and Termination.
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(a) This is a master agreement and shall be construed as a separate and
independent agreement for each and every Service provided under this Agreement.
Each of the Schedules is hereby incorporated in its entirety by reference
herein. Any specific Service may be subject to termination by the parties. Any
termination of this Agreement with respect to any Service shall not terminate
the Agreement with respect to any other Service then being provided subject to
this Agreement.
(b) This Agreement will expire with respect to any Service at the end of
the stated term provided in Section 2(a).
(c) Subject to paragraph (a) of this Section, TSI may terminate this
Agreement (i) for breach with respect to any Service upon written notice, unless
within a period of thirty (30) days after such notice the Provider that is in
breach remedies such breach and (ii) for any reason with respect to any Service
upon ninety (90) days' notice. Upon the effective date of such termination,
each party will, and will cause the relevant Provider or Recipient to, return
immediately to the all of the Provider's or Recipient's Confidential Information
and Equipment (each as defined below) associated with the provision of the
Service in the possession or control of the Recipient or Provider, as the case
may be.
(d) After any termination or expiration of this Agreement pursuant to the
terms hereof, Sections 3(c), 4, 5(c), 6, 10, 13-20 and 22-25 shall survive.
4. Compensation; and Taxes. Prices and invoicing for each of the Services
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provided hereunder will be determined in accordance with terms set forth in the
respective
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Schedule relating to such Service. Each party will pay all taxes for which it is
the primary obligor as a result of the provision of Services under this
Agreement.
5. Representations.
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(a) TFT. TFT hereby represents to Buyer that: (i) it is duly organized,
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validly existing and has the authority to execute, deliver and perform its
obligations under this Agreement; (ii) this Agreement has been duly authorized
by all necessary corporate action, has been duly executed and delivered and
(assuming the due execution and delivery of this Agreement by, and binding
effect of this Agreement on, Buyer) constitutes its legal, valid, binding and
enforceable obligation (subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to creditors rights and to general equity principles and, as to
enforcement, to regulatory supervision); (iii) the performance of its or any
Provider's obligations hereunder does not (and will not) violate any provision
of law or any material agreement applicable to it; and (iv) it and the Providers
have in effect (and will continue to maintain in effect) all material
registrations, approvals, authorizations and consents required by any government
authority in order to effect the provision of the Services hereunder.
(b) TSI. TSI hereby represents to TFT that: (i) it is duly organized,
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validly existing and has the authority to execute, deliver and perform its
obligations under this Agreement; (ii) this Agreement has been duly authorized
by all necessary corporate action, has been duly executed and delivered and
(assuming the due execution and delivery of this Agreement by, and binding
effect of this Agreement on, WF and WFB) constitutes its legal, valid, binding
and enforceable obligation (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to creditors rights and to general equity principles and,
as to enforcement, to regulatory supervision); (iii) the performance of its or
any Recipient's obligations hereunder does not (and will not) violate any
provision of law or any material agreement applicable to it; and (iv) it and the
Recipients have in effect (and will continue to maintain in effect) all material
registrations, approvals, authorizations and consents required by any government
authority in order to effect the provision of the Services hereunder.
(c) THE WARRANTIES STATED IN THIS SECTION ARE THE SOLE AND EXCLUSIVE
WARRANTIES MADE BY TFT AND TSI. THERE ARE NO OTHER WARRANTIES RESPECTING THE
SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE EVEN IF TSI HAS BEEN INFORMED OF SUCH PURPOSE. NO AGENT OF
TFT OR TSI IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF ANY
PARTY AS SET FORTH HEREIN.
6. Indemnity. (a) TFT agrees to indemnify each of the Recipients and each
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of its directors, officers, employees and agents (the "Indemnified Recipient
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Parties") for, and to hold
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each of the Indemnified Recipient Parties harmless against, any direct loss,
liability or expense, including without limitation any tax, penalties or
expenses, incurred as a result of any breach of this Agreement, any violation of
laws, rules or regulations or of the gross negligence or bad faith on the part
of TFT or its Providers (it being acknowledged that so long as any Provider is
in compliance with the service levels and procedures described in the relevant
Schedule, no gross negligence or bad faith shall be imputed to such Provider),
arising out of or in connection with the provision of Services as provided
hereunder, or the failure to perform any Services, including the costs and
expenses of defending any claim of liability and of enforcing this provision.
(b) TSI agrees to indemnify each of the Providers and each of its
directors, officers, employees and agents (the "Indemnified Provider Parties")
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for, and to hold each of the Indemnified Provider Parties harmless against, any
direct loss, liability or expense, including without limitation any tax,
penalties or expenses, incurred as a result of any violation of laws, rules or
regulations or of the gross negligence or bad faith on the part of TSI or its
Recipients, arising out of or in connection with the provision of Services as
provided hereunder, including the costs and expenses of defending any claim of
liability and of enforcing this provision.
(c) NEITHER PARTY SHALL NOT BE RESPONSIBLE TO THE OTHER OR ANY
PROVIDER OR RECIPIENT FOR ANY LOST DATA, DOWN-TIME, LOSS-OF-PROFIT, INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SERVICES OR THIS
AGREEMENT. Neither party shall be liable hereunder for cumulative damages
greater than one hundred percent (100%) of the service fees having then actually
been paid, or which are then payable, to TFT under the terms of this Agreement
for the relevant Services. TSI, on its behalf and on behalf of its Recipients,
releases TFT and its Providers from all obligations, liability, claims or
demands relating to the Services and this Agreement in excess of the limitation
provided for herein. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN
THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES LEVIED IN CONNECTION WITH THE
SERVICES RENDERED HEREUNDER AND THAT, WERE TFT TO ASSUME ANY FURTHER LIABILITY
OTHER THAN AS SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET
SUBSTANTIALLY HIGHER.
7. Policies and Procedures. TFT and TSI agree that Provider will perform
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the Services or cause the Services to be performed in accordance with the
reasonable policies and procedures as adopted by the Provider from time to time
and supplied by the Provider. TFT and TSI each agree that, if, in the course of
performing the Services, any Recipient believes that a policy or procedure of
the Provider should be modified or amended in any respect, the Recipient shall
so recommend to TFT and TFT shall cause such recommendation to be considered in
good faith but shall not be obligated to effect any policy or procedure changes.
8. Equipment. At Recipient's or Provider's expense, as mutually agreed,
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and after giving reasonable notice to the Recipient, the Provider may install or
maintain computer terminals, printers, servers, network equipment or other
computer input, processing or output
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devices (collectively "Equipment") that will be connected to the computer system
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of the Recipient or Provider (the "Computer System") to provide Services. TFT
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will ensure that the Equipment meets the equipment certification standards
established by the Recipient for similar equipment connected to its Computer
System. TSI and TFT each agree that it and its Providers or Recipients shall not
alter or modify the Computer System of a Provider or Recipient in any way that
detrimentally affects its functioning or performance without the prior written
consent of the Recipient or Provider, as the case may be. Equipment acquired at
Recipient's expense shall remain the property of the Recipient and acquired at
Provider's expense shall remain the property of Provider.
9. Insurance. TFT and TSI will cause each Provider's and Recipient's
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public liability and property damage insurance policies to be (i) appropriately
endorsed to insure the interests of the Recipient or Provider, as the case may
be, against all risks to which it may be exposed by reason of the provision of
Services under this Agreement and (ii) [???of such types and in such amounts as
are not less than the limits of the public liability and property damage
insurance maintained by any Provider or Recipient with insurers of recognized
responsibility].
10. Confidentiality.
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(a) Confidential Information. Secret or confidential information,
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including, without limitation, client and prospective client lists, source code,
object code, manufacturing, financial and marketing data, orders, forecasts,
plans, designs, drawings and specifications of the Provider or Recipient (the
"Disclosing Party"), that is or has been provided to the Recipient or Provider
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(the "Receiving Party") and which is marked as "Confidential" (or with a similar
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designation) or which the Receiving Party should reasonably know is confidential
information (hereafter "Confidential Information"), will be treated as
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confidential and not further disclosed to any person who is not an affiliate of
the Receiving Party, or a director, officer, employee or agent of such affiliate
or Receiving Party, without the prior written consent of the Disclosing Party,
except as provided under the terms of this Agreement, for the later of December
31, 2009 or for ten ears from the date such Confidential Information was first
received, unless such information (i) was already in the possession of the
Receiving Party, (ii) is placed in the public domain through no fault of the
Receiving Party, (iii) is independently developed by the Receiving Party, or
(iv) becomes rightfully available to the Receiving Party through other sources
without restriction on disclosure. Nothing contained in this paragraph will act
or is intended to affect or limit the obligations of any party to this Agreement
regarding confidentiality and nondisclosure of Confidential Information provided
for elsewhere in this Agreement. If any Receiving Party to this Agreement is
served with a subpoena or other legal process (or a request from applicable
regulators) requiring the production or disclosure of any Confidential
Information, then TSI (if the Receiving Party is a Recipient) or TFT (if the
Receiving Party is a Provider) will immediately notify the Disclosing Party, and
will in good faith attempt to permit the Disclosing Party at its expense to
intervene and contest such disclosure or production. TFT and TSI each agrees
that, if TFT or TSI, or any Provider or Recipient, is to be the subject of an
internal or external audit involving or referencing anything relating to the
Services or the provision thereof, the relevant Recipient or Provider, as the
case may be, shall have a right to receive advance
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notice thereof within a reasonable period of time before such audit, a right to
participate meaningfully in such audit process and a meaningful opportunity to
review and comment on such audit processes or materials before such audit
becomes final in each case to the extent such audit could reasonably be expected
to materially affect the rights, reputation or obligations of such Recipient or
Provider.
(b) Non-Disclosure. TSI (if the Receiving Party is a Recipient) or TFT (if
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the Receiving Party is a Provider) each agree that the Receiving Party will (i)
allow access to the Disclosing Party's Confidential Information only to
affiliates of the Receiving Party or the directors, officers, employees and
agents of such affiliates and the Receiving Party; and (ii) take reasonable
precautions to maintain the confidentiality of the Disclosing Party's
Confidential Information, which in no event will be less than those precautions
that such employs to protect its own proprietary information.
11. Relationships among the Parties, Recipients and Providers. Nothing in
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this Agreement shall cause the relationship between TSI on the one hand and TFT
on the other, or between any Provider on the one hand and any Recipient on the
other, to be deemed to constitute a partnership or joint venture. Neither TSI on
the one hand nor TFT on the other, nor any Provider on the one hand nor any
Recipient on the other, shall have any authority, express or implied, to bind,
commit or act as agent for the other in any way except as provided herein. Each
Recipient and Provider shall be responsible for the salaries, payroll taxes,
severance costs and benefits of its own employees [???], and the terms of this
Agreement are not intended to constitute the parties, or the Recipients or the
Providers, as a joint employer for any purpose. Each of the parties agrees that
the provisions of this Agreement as a whole are not intended to, and do not,
constitute control of the other party (or any affiliates thereof) or provide it
with the ability to control such other party (or any affiliates thereof), and
each party hereto expressly disclaims any right or power under this Agreement to
exercise any power whatsoever over the management or policies of the other (or
any affiliates thereof). Nothing in this Agreement shall oblige either party
hereto to act in breach of the requirements of any law, rule or regulation
applicable to it, including securities, export and privacy laws, written policy
statements of securities commissions and other regulatory authorities, and the
by-laws, rules, regulations and written policy statements of relevant securities
and self-regulatory organizations.
12. Books and Records. At TFT's or TSI's request, the other will make
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available, during normal business hours, the books and records relating to
Services provided hereunder for inspection and photocopying by the other's
agents, auditors, accountants or other representatives.
13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
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IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO ITS
CONFLICTS OF LAWS PRINCIPLES. Each
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of the parties irrevocably consents to the exclusive personal jurisdiction of
the federal and state courts located in San Xxxx County, California for any
matter arising out of or relating to this Agreement, except that in actions
seeking to enforce any order or any judgment of such courts such personal
jurisdiction shall be nonexclusive.
14. Dispute Resolution.
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(a) Mandatory Arbitration. The parties hereto shall promptly submit any
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dispute, claim, or controversy arising out of or relating to this Agreement
and/or the provision of Services hereunder, including, without limitation,
effect, validity, breach, interpretation, performance, or enforcement
(collectively, a "Dispute") to binding arbitration in San Francisco, California
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at the offices of the American Arbitration Association before a panel of three
arbitrators (the "Arbitrators") in accordance with the Expedited Commercial
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Arbitration Rules of the American Arbitration Association. The parties agree
that binding arbitration shall be the sole means of resolving any Dispute.
(b) Costs. The costs of the arbitration proceeding and any proceeding in
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court to confirm or to vacate any arbitration award (including, without
limitation, actual attorneys' fees and costs), shall be borne by the
unsuccessful party and shall be awarded as part of the Arbitrators' decision,
unless the Arbitrators shall otherwise allocate such costs in such decision.
15. Assignment. Neither this Agreement nor the rights or obligations
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hereunder shall be assignable by either party hereto, by operation of law or
otherwise, without the prior written consent of the other party hereto, and any
purported assignment shall be null and void; provided, however, that TFT may
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subcontract to third parties to provide certain Services hereunder. Subject to
the foregoing, this Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns.
16. Force Majeure/Delay. No party will be responsible for delays in or
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suspension of performance caused by acts of God or governmental authority.
17. Entire Agreement. This Agreement, the Schedules and the License
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Agreement constitute the entire agreement, and supersedes all prior agreements
and understandings (oral and written), by and among the parties hereto with
respect to the subject matter hereof.
18. Conflicts. To the extent the License Agreement, or any other document
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or other agreement executed in connection with the License Agreement, is in
conflict with any term or provision of this Agreement or any Schedule to this
Agreement with respect to any Service expressly described in a Schedule, this
Agreement will take precedence. To the extent this Agreement is in conflict
with any Schedule, this Agreement will take precedence.
19. Third-Party Rights. Nothing contained in this Agreement, express or
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implied, establishes or creates, or is intended or will be construed to
establish or create, any right in or remedy of, or any duty or obligation to,
any third party other than the Recipients and Providers.
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20. Notices. All notices or other communications hereunder shall be
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deemed to have been duly given and made if in writing and if served by personal
delivery upon the party for whom it is intended on the day so delivered, if
delivered by registered or certified mail, return receipt requested, on the
third business day following such mailing or by a national courier service on
the Business Day following such mailing, or if sent by telecopier on the day
telecopied, or if not a business day, the next succeeding business day, provided
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that the telecopy is promptly confirmed by telephone confirmation thereof, to
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the person at the address set forth below, or such other address as may be
designated in writing hereafter, in the same manner, by such person:
To TSI or any Recipient:
TIBCO Software Inc.
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Tel: (650) -
Fax: (650) -
Attn: General Counsel
with a copy to:
Chief Financial Officer as above
To TFT or any Provider:
TIBCO Finance Technology Inc.
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: General Counsel
with a copy to:
Chief Financial Officer as above
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21. Disaster Recovery. TSI and TFT each agrees that the other shall have
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a right meaningfully to participate in and comment on the business resumption
and/or disaster recover plans, exercises and drills conducted by the other or
any Provider from time to time, including without limitation in connection with
Millennium planning.
22. Counterparts. This Agreement may be executed by the parties hereto in
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one or more counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument.
23. Amendment; Waiver. Any provision of this Agreement may be amended or
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waived if, and only if, such amendment or waiver is in writing and signed, in
the case of an amendment, by the parties, or in the case of a waiver, by the
party against whom the waiver is to be effective. No failure or delay by any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. Except as otherwise provided herein, the rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
24. Severability. The provisions of this Agreement shall be deemed
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severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or entity
or any circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other persons, entities or circumstances shall not be affected by
such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or the
application thereof, in any other jurisdiction.
25. Headings. Headings contained in this Agreement are for reference
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purposes only. They shall not affect in any way the meaning or interpretation
of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date first above
written.
TIBCO FINANCE TECHNOLOGY INC.
By:___________________________
Name:
Title:
TIBCO SOFTWARE INC.
By:___________________________
Name:
Title:
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SCHEDULE 1
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TIBCO Software, Inc/TIBCO Finance Technologies
Travel Services Agreement
TIBCO Finance Technology, Inc ("TFT") will provide Travel Services to TIBCO
Software, Inc. ("TSI").
Staffing: TFT will provide the appropriate staffing as agreed upon with TSI for
the Travel Services department to continue the current service levels. TFT
will maintain primary responsibility for managing the Travel Services
department, and ensuring the staff are properly trained. Travel Services staff
will rotate between TFT and TSI buildings based on travel volume and activity
requirements.
Travel Agency: TFT will be the primary contact with the Travel Agency, and will
ensure that service-levels for TSI are maintained in accordance with the
agreement with the Travel Agency ("Travel Agency Agreement").
Hours: Travel office hours will be 8:00am to 6:00pm, Monday through Friday PST.
After-hours and emergency services will be available to TSI in accordance with
the Travel Agency agreement.
Equal priority: Travel services will be provided to TFT and TSI on equal
priority. Staff location will be based on service requirements. If there are
at least two staff on duty at any time, at least one will be at the TSI
location.
Facilities: TSI will provide, at it's own cost, facilities for Travel Services
located at the TSI building.
Fixed costs: TFT expects to incur approximately $10,000 in upfront costs to
convert to a new travel agency. TSI will pay 50% of the actual costs incurred,
which will be refundable on a pro-rata basis if this agreement is terminated for
breach within the first 24 months.
Ongoing costs: TFT will charge TSI for Travel Services by allocating the loaded
costs of the Travel Services department based on dollar volume for TFT and TSI
for the prior quarter. "Loaded Costs" for purposes of this agreement are
defined as salary plus employee benefits overhead, which shall exclude
facilities and depreciation charges. If TFT and TSI agree that additional
agents are required to support service-level requirements, and those agents are
provided by the Travel Agency, fees for additional travel agents provided by the
Travel Agency to will be netted out of commissions due to TSI based on the
dollar volume for TFT and TSI for the prior quarter.
Travel Accounting and Billing: TFT will ensure that travel accounting and
billing activity with the Travel Agency for TFT and TSI is separately
maintained. All expenses, commissions,
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refunds and rebates will be separately identified between the two companies, and
a separate billing from the Travel Agency prepared.
Payment: TFT will invoice TSI monthly for all Travel Services charges related
to the TFT Travel Services employees. TSI will pay amounts due to TFT within 7
days of receiving a correct invoice and supporting documentation. TSI will pay
the separate TSI billing from the Travel Agency in accordance with the payment
terms in the Travel Agency Agreement. This payment can be made through TFT or
directly to the Travel Agency as mutually agreed between TFT and TSI.
Travel Policies: TFT agrees that Travel Services will administer TSI travel in
accordance with the documented TSI travel policy.
Term and Termination: Travel Services shall be provided for a one-year term,
which shall automatically renew for additional one-year terms on an annual basis
unless terminated by either party for any reason upon 60 days written notice.
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SCHEDULE 2
TIBCO Software Inc./TIBCO Finance Technology Inc.
Cafe Services Agreement
TIBCO Software, Inc. (TSI) amd TIBCO Finance Technology, Inc. (TFT) will share
the services of Bon Appetite and the Bon Appetite cafe manager, Xxx Xxxxxx. TFT
will manage the contractual relationship with Bon Appetite.
TSI will receive a direct xxxx from Bon Appetite for costs directly incurred at
the Xxxxxx Drive site, including the cafeteria service and food, catering
service, coffee service, and subsidy.
Xxx Xxxxxx will continue to manage both the TSI facility at Xxxxxx Drive and the
TFT facility at Hillview Drive. Xxx will spend as much time as required at the
Xxxxxx site to ensure that the cafeteria and related services are satisfactory
to TSI. It is currently estimated that this will require 35% of Ken's time over
the next six months. TFT will communicate to Bon Appetite the allocation of
Ken's expenses to be included in the TSI invoice. This allocation will be set
at 35% for the first six months. TFT and TSI will review this charge and adjust
as appropriate every six months, or sooner if one or both parties feel the
allocation is materially misrepresenting the service being provided to either
party.
The foregoing agreement can be cancelled with 60 days written notice by either
party at any time for any reason.
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SCHEDULE 3
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Service Level Agreement
between
TIBCO Finance Technology Inc. (TFTI)
and
TIBCO Software Inc. (TSI)
For the delivery of Information Technology Services
Version 0.7
June 24, 1999
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Executive Overview
TFTI currently provides a range of Information Technology services to TSI,
including helpdesk support, desktop management, network management,
infrastructure management, asset management, Internet & Intranet support to TSI
end users. Subsequent to the relocation of TFTI to the Hillview Avenue building,
the nature of that support will necessarily change, and TSI will take over
responsibility for the day-to-day operations of TIBCO Software Inc., especially
the Xxxxxx Drive site. This Service Level Agreement defines the Information
Technology services that TFTI will provide to TSI through the calendar year
1999.
This service level agreement ("SLA") provides detailed documentation for each
service provided by TFTI including: a description of the services presently
being provided, and to be provided; the deliverables resulting from the service
provided; and the service levels to be expected by TSI.
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1. Services
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This Service Level Agreement ("SLA") is a working agreement between TSI and
TFTI. This document defines the level of service which will be provided to TSI
by TFTI, and is the foundation for all Information Technology Services provided
to TSI by TFTI.
1.1. Levels of Support
Support Level Description Explanation
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First level of user support
1 Front Line Support - E-mail, and interaction. Primary
phone, & drop-ins channel of communication with
user.
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Direct hands-on intervention
2 Hands-On Support - Desktops & of an IT staff member in
Servers resolving an issue.
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Utilization of specialized
knowledge. Aspects of design
3 Advisement/Consultation and planning as well as
Support - Infrastructure research & discovery also
covered.
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1.2. Service Coverage Level over Time for Specific Services
1.2.1. TFTI Information Technology Group will provide the following
service levels to TSI for TFTI infrastructure at Xxxxxx Drive. The
chart refers to components with the following descriptors:
Service Description Apr May/Jun July/Aug/Sep Oct/Nov/Dec
LAN Services 1,2,3 3 3 3
WAN Services 1,2,3 3 3 3
Remote Access 1,2,3 3 3 3
Helpdesk Support 1,2,3 3 3 3
Desktop System Support 1,2,3 3 3 3
Server System Support 1,2,3 3 3 3
Naming Services 1,2,3 3 3 3
On-call Support 1,2,3 3 3 3
Internet & Intranet Support 1,2,3 3 3 3
Remote Office Support 1,2,3 3 3 3
1.2.2. TFTI Information Technology Group will provide the following
service levels to TSI for TFTI infrastructure at Hillview Ave.
Service Description Apr May/Jun July/Aug/Sep Oct/Nov/Dec
OC3c between Porter and Hillview 1,2,3 2,3 2,3 2,3
Remote Services 1,2,3 2,3 2,3 2,3
Server System Support 1,2,3 2,3 2,3 2,3
On-call Support 1,2,3 2,3 3 3
Remote Office Support 1,2,3 2,3 2,3 2,3
18
1.3. Service Description
1.3.1. Palo Alto LAN Services: TFTI will provide LAN access to assets that are
moved from Xxxxxx Drive to Hillview Avenue through a SONET interface
that is solely managed and operated by TFTI. TFTI currently provides
day-to-day management of the LAN infrastructure in the Xxxxxx Drive
facility. TSI will migrate from the existing infrastructure in calendar
year 1999. During this transition period, TFTI will provide third-level
support for problems with the existing LAN infrastructure.
1.3.2. WAN Services: TFTI will provide WAN services for TSI employees,
workgroups and assets that are located in TFTI managed facilities
world-wide. WAN services include providing network connectivity for all
locations in North America, Europe, and Asia-Pacific. In addition, TFTI
will provide integration support to this network for TSI managed
networks, both local and wide-area.
1.3.3. Remote Access Networking: TFTI currently provides dial-in network
support for TSI, supporting asynchronous and ISDN connections. TFTI
will continue providing this support throughout calendar year 1999.
1.3.4. Helpdesk Support: TFTI currently provides Helpdesk support to TSI
users. After the move of TFTI to the Hillview Avenue facility, TSI will
be responsible for providing this support. However, issues requiring
special knowledge of the Xxxxxx Drive infrastructure, will be referred
to TFTI IT support staff for third-level support by TSI Helpdesk.
1.3.5. Desktop Systems Support: TSI will be responsible for providing Desktop
support for TSI users and employees. This support includes desktop
Windows and UNIX machines and laptop Windows machines. However, issues
requiring special knowledge of the Xxxxxx Drive infrastructure, will be
referred to TFTI IT support staff for third-level support by TSI
Helpdesk.
1.3.6. Server Systems Management: TFTI Server Systems Administration is
responsible for the installation, configuration, troubleshooting, and
day-to-day management of Hillview Avenue server environment. The server
environment includes such devices as Microsoft NT Servers and UNIX
Servers, and the servers included in this service category are defined
in Appendix A. TFTI will also provide third-level support for servers
that were deployed at Xxxxxx Drive for TSI use, but that are directly
supported by TSI.
1.3.7. Naming Services: TFTI currently provides DNS, NIS, and WINS services
for TSI end users. These services will continue uninterrupted after the
move to the Hillview Avenue location. The server environment includes
such devices as Microsoft NT Servers and UNIX Servers. TSI end users
can obtain TFTI Server Systems Administration services by placing a
call to the IT Help Desk and requesting assistance. TFTI Server Systems
Administration is responsible for the installation, configuration,
troubleshooting, and day-to-day management of the Hillview Avenue
19
server environment. TFTI will also provide third-level support for
servers that were deployed by them at Xxxxxx Drive for TSI use.
1.3.8. On-Call Support: TFTI currently provides 24x7 on-call support to TSI.
At some future date (but before the end of calendar year 1999), TSI
will become responsible for on-call support for TSI end users. Before
this shift in responsibility, TFTI will continue to provide third-level
support for equipment, services or issues that were deployed or
encountered prior to the shift.
1.3.9. Internet & Intranet Support Services: TFTI currently provides access to
the Internet and Intranet services that are used and shared by TSI end
users. It is TSI's intention to migrate its usage of these services to
TSI provided facilities and assets. However, that migration cannot be
successful without the full attention, willingness and coordinated
execution of both TFTI and TSI. Recognizing that other priorities may
take precedence, TFTI will continue to provide these services to TSI
until a mutually agreed-upon migration takes place.
1.3.10. Remote Site Support: TFTI currently provides a full range of services
to TSI employees, contractors, agents and/or other assets (such as
routers, hubs and servers) that reside in TFTI managed facilities. TSI
will continue to share space in these TFTI managed sites. TFTI will
provide services and support to the TSI users as if they were TFTI
users.
1.3.11. Electronic Mail: TFTI currently provides email services to TSI,
including server support, distribution of email to various mail servers
through a mail relay, and the maintenance and synchronization of mail
aliases. TFTI will continue to provide these services to TSI until a
mutually agreed-upon migration takes place. On or before June 1, 1999,
responsibility for the "xxxxx.xxx" domain will transfer to TSI. At that
time, TSI will provide mail relay services to TFTI, to support their
transition to a new domain.
1.3.12. Telecommunications Services: TFTI will provide the following services
to TSI:
.Access Management
.Long Distance
.Calling Cards
. Ordering calling cards for new employees
. Canceling cards for terminated employees
.Pagers
. Ordering new and replacement pagers and returning them for
terminated employees
. Keep updated list of employee pager numbers
.System administration of CBX and PhoneMail
. Create phone stations for new employees
. Install phones
20
. Wiring in switch room
. Create PhoneMail box
. Provide information and instruction when needed
. Moves, adds and changes
. Contact Siemens technician when needed
. Order digital and analog cards, phones, and accessories
. Call detail recording
. Provide reports as requested
21
2. TFTI Staff Levels of Service (Service Hours)
The following table defines the hours that TFTI staff provides to TSI. The
percentage is based on a 40-hour week.
0.0.XX
Name Apr May/Jun July/Aug/Sep Oct/Nov/Dec
Xxxxxxxx Xxxxxxxx 33% 20% 10%
HD Admin 33%
HD Admin 33%
Xxxx Xxxx 33% 25% 20% 20%
Xxxxx Xxxxx 33% 20% 10% 5%
UNIX Admin 33%
UNIX Admin 33%
Xxxxxx Xxx 33% 5% 10% 5%
PC/NT Admin 33%
PC/NT Admin 33%
Total 3.3 FTE .9 FTE .5 FTE .3 FTE
2.2. Telecomm
Name Apr May/Jun July/Aug/Sep Oct/Nov/Dec
Xxxxx XxXxxxx 50% 50% 50% 50%
Total 0.5 FTE 0.5 FTE 0.5 FTE 0.5 FTE
Note: FTE = Full Time (40-hour week) Equivalent
3. Fees
[Fees to be filled in by TFT]
4. Key Assumptions/Requirements
. TSI will establish Helpdesk Support on April 26th, 1999, 2 weeks prior to
the May 7th, 1999 move date. A transition period of 4 weeks will ensue,
during which TFTI and TSI Helpdesk Support will be jointly supporting the
TFTI and TSI infrastructures. At the close of the 4th week (May 21st,
22
1999) TFTI and TSI will be handling support separately for each
perspective company.
. TSI will provide On-Call Support information (e.g. pager, cellular phone,
and home phone numbers) to TFTI On-Call Support the week prior to the May
7th, 1999 move date. TFTI will continue to provide third-level support
for TFTI Infrastructure at Xxxxxx Drive, and TSI will provide contact
information for TSI individuals that will provide first and second level
support for said infrastructure.
. TFTI will not be providing any first or second level support for any
infrastructure at Xxxxxx Drive. TFTI will provide TSI with third level
support for Infrastructure at Xxxxxx Drive.
. TFTI will provide second and third level support for Hillview
Infrastructure that TSI relies on. First level support must be provided
by TSI then routed appropriately to TFTI.
23
Appendix A: Supported Servers
Computer Name Operating
Description System Function Location
---------------------------------------------------------------------------------------------------------------------
Compute Servers Sun UNIX Compute Server Hillview Avenue
---------------------------------------------------------------------------------------------------------------------
NIS Servers Sun UNIX NIS Server Xxxxxx Drive
---------------------------------------------------------------------------------------------------------------------
Badger22 Sun UNIX GP for UNIX Users Hillview Avenue
---------------------------------------------------------------------------------------------------------------------
Bonestorm Compaq NT Exchange Server Hillview Avenue
---------------------------------------------------------------------------------------------------------------------
Bonestorm2 Compaq NT Exchange Server Hillview Avenue
---------------------------------------------------------------------------------------------------------------------
Condor Sun UNIX GP for UNIX Users Hillview Avenue
---------------------------------------------------------------------------------------------------------------------
Diablo Compaq NT BDC Xxxxxx Drive
---------------------------------------------------------------------------------------------------------------------
Falcon Sun UNIX GP for UNIX Users Hillview Avenue
---------------------------------------------------------------------------------------------------------------------
Flash Sun XXXX Xxxx Xxxxxxx Xxxxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------
Galaxy Sun E450 UNIX File Server Hillview Avenue
---------------------------------------------------------------------------------------------------------------------
Heretic Compaq NT PDC Hillview Avenue
---------------------------------------------------------------------------------------------------------------------
Key Largo Auspex UNIX File Server Hillview Avenue
---------------------------------------------------------------------------------------------------------------------
Oxford Sun UNIX UNIX Print Server Xxxxxx Drive
---------------------------------------------------------------------------------------------------------------------
Post Compaq NT Print Server Xxxxxx Drive
---------------------------------------------------------------------------------------------------------------------
Relic Compaq NT File Server Hillview Avenue
---------------------------------------------------------------------------------------------------------------------
Relic Compaq NT PDC Hillview Avenue
---------------------------------------------------------------------------------------------------------------------
Script Compaq NT Print Server Xxxxxx Drive
---------------------------------------------------------------------------------------------------------------------
Skyhawk Sun UNIX GP for UNIX Users Hillview Avenue
---------------------------------------------------------------------------------------------------------------------
Surfme Sun UNIX Intranet Web Server Hillview Avenue
---------------------------------------------------------------------------------------------------------------------
Tekbspa Sun UNIX Mail Server & Relay Hillview Avenue
---------------------------------------------------------------------------------------------------------------------
WINS/ MB Server Compaq NT WINS/Browser Servers Xxxxxx Drive
---------------------------------------------------------------------------------------------------------------------
Tickle Sun UNIX Proxy Server Hillview Avenue
---------------------------------------------------------------------------------------------------------------------
Zebra Sun UNIX GP for UNIX Users Hillview Avenue
---------------------------------------------------------------------------------------------------------------------
Note: This appendix may not be complete and may not contain all of the servers
which TFTI will maintain for TSI's use. All the servers and racks located at
Xxxxxx Drive are properties of TFTI, and TSI will return these servers to TFTI
no later than January 5, 2000.
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