Exhibit 10.18.2
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement ("Agreement") is entered into this
9th day of October 1996, ("Effective Date") by and between SAP America, Inc.,
a Delaware corporation, with offices at 000 Xxx Xxxx, Xxxxx 000, Xxxxx,
Xxxxxxxxxxxx 00000, (hereinafter "SAP") and Pluma, Inc., a North Carolina
corporation, with offices at 000 Xxxxxxxxxx Xxxx, Xxxx, Xxxxx Xxxxxxxx
00000 (hereinafter "Company").
RECITAL
WHEREAS, Company acquired from SAP utilization rights for SAP R/3 Software
System pursuant to the R/3 Software End-User Individual License Agreement
effective October 9, 1996, between SAP and Company ("End-User Agreement").
All terms set forth in the End-User Agreement and referred to herein shall
have the same meaning as set forth in the End-User Agreement unless
otherwise modified in this Agreement.
WHEREAS, SAP provides, through its employees and third party contractors,
software consulting and professional services in support of installation
and implementation of the Software in the United States which Company desires
to obtain.
NOW, THEREFORE, in consideration of the mutual promises and obligations in
this Agreement, the sufficiency of which is hereby acknowledged, the parties,
intending to be legally bound, agree as follows:
1. Services To Be Performed. SAP will provide consultants proficient with
the applicable SAP products to perform services at Company's direction on
projects as mutually agreed to in writing by SAP and Company. All activities
of the SAP staff must be coordinated with the project supervisor of Company.
Company is responsible for making the necessary internal arrangements for
the carrying out of the services to be rendered by the SAP staff. Company
and SAP will jointly agree on the scope, duration, and estimated cost of
the project prior to the commencement of services in the form set forth in
Schedule A attached hereto.
2. Satisfaction with Performance. If at any time Company is dissatisfied
with the performance of a consultant working on a Company project, Company
shall immediately report its dissatisfaction to SAP in writing and may ask
SAP to replace the individual.
3. Compensation of SAP. All services will be provided by SAP on a time and
materials basis. Activities will be charged according to the effort required
at the rates as set forth in Schedule B hereto. The services to be rendered
by SAP within the framework of this Agreement will be charged on a monthly
basis in accordance with Schedule B. Record of performance will be shown
on forms provided by SAP for this purpose. All payments are due within
thirty (30) days after receipt of invoice. All duties, taxes and levies
(excluding taxes based on SAP's net income), if any, shall be borne by
Company. SAP shall be responsible for all payroll taxes, employee benefits,
and any other payments due or imposed on any personnel performing work
under this Agreement. SAP's consulting rates are subject to change upon
thirty (30) day prior written notice.
4. Term. This Agreement shall be effective as of the Effective Date, specified
above, and shall remain in force until terminated in writing by either party
with or without cause. Company shall be liable for payment to SAP for all
services rendered or products delivered prior to the Effective Date of any
such termination.
5. Proprietary Information. Both parties shall handle Proprietary information
(as defined in Section 1.18 of the End-User Agreement) acquired in connection
with their activities under this Agreement in accordance with the obligations
regarding Proprietary Information set forth in Section 6 of the End-User
Agreement.
6. Work Product.
6.1 All rights, title and interest in any Extension or Modification
(as defined in Sections 1.10 and 1.12 of the End-User Agreement) developed
under this Agreement shall be governed by the terms set forth in Section 6.4
of the End-User Agreement.
6.2 Company agrees that any and all ideas, concepts, or other intellectual
property rights related in any way to the techniques, knowledge or processes
of the SAP services or SAP products provided under this Agreement, whether
or not developed for Company, are the exclusive property of SAP. SAP shall
have the sole and exclusive right, title and ownership in and to the said
technology.
6.3 This Section 6 shall survive any termination of this Agreement.
7. Limitation of Liability.
7.1 The liability of SAP (including all persons employed by SAP in
performing any obligations of this Agreement) for any claims arising from
this Agreement shall be limited in the aggregate to the amount of the
service fees paid to SAP for the services to which the liability is
attributable.
7.2 This limitation does not apply to personal injury or death caused solely
by the gross negligence of SAP. With respect to tangible property damage, SAP
shall hold Company harmless, to the extent to which such damage is paid
by SAP's liability insurance. SAP shall maintain adequate insurance coverage
on all personnel performing work under this Agreement, including commercial
general liability coverage, automobile liability coverage, and workers'
compensation.
7.3 ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING, UNDER NO CIRCUMSTANCES
SHALL SAP BE LIABLE TO COMPANY OR ANY OTHER PERSON FOR SPECIAL OR CONSEQUENTIAL
DAMAGES OR FOR INDIRECT DAMAGES, OR FOR LOSS OF GOOD WILL OR BUSINESS PROFITS,
WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER
COMMERCIAL DAMAGES OR LOSS, AND EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF SAP
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.4 SAP MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, NOR ANY OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY IN CONNECTION
WITH THIS AGREEMENT AND THE SERVICES PROVIDED HEREUNDER.
8. General Provisions.
8.1 This Agreement is a personal services agreement and the performance
of any obligation hereunder may not be assigned, delegated or otherwise
transferred by either party, provided however, that SAP may assign all or
part of the work to be performed under this Agreement to a qualified third
party who shall be operating on a consulting basis for SAP.
8.2 If any provision of this Agreement is found by any court of competent
jurisdiction to be invalid or unenforceable, the invalidity of such provision
shall not affect the other provisions of this Agreement, and all provisions
not affected by such invalidity shall remain in full force and effect.
8.3 The waiver by either party of a breach or default in any of the
provisions of this Agreement by the other party shall not be construed as
a waiver of any succeeding breach of the same or other provisions; nor
shall any delay or omission on the part of either party to exercise or
avail itself of any right, power or privilege that is has or may have
hereunder operated as a waiver of any breach or default by the other party.
8.4 This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements
between the parties, whether written or oral, relating to the same subject
matter. No modifications, amendments, or supplements to this Agreement shall
be effective for any purpose unless in writing and signed by the parties.
8.5 The relationship of SAP and Company established by this Agreement
is that of independent contractors.
8.6 This Agreement and any disputes arising out of or in connection with
this Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania.
8.7 Any purchase order or other document issued by Company is for
administrative convenience only. In the event of any conflict between
the provisions of this Agreement, and any purchase order, as well as the
introduction of new terms on any such purchase order, the provisions
of this Agreement shall prevail.
IN WITNESS WHEREOF, the parties have so agreed as of the date written above.
Agreed to: Agreed to:
SAP America, Inc. Pluma, Inc.
SAP Company
By:_______________________________________ By: (Sig of Xxxxxx X. Xxxxxx)
Name:_____________________________________ Name: (Xxxxxx X. Xxxxxx)
Title:____________________________________ Title: Vice President of Operations
Date:_____________________________________ Date: October 14, 1996
2
SCHEDULE A
to
Professional Service Agreement
Work Order
PROJECT NAME AND COMPANY ADDRESS
LOCATION OF WORK TO BE PERFORMED
CONSULTANT CATEGORY LEVEL
START DATE
TARGET END DATE
RATE OF COMPENSATION
Basic hourly rate is based on attached Rate Schedule (Schedule B) and
individual K Rates.
EXPENSES
Pre-approved travel expenses, and incidental expenses relating to support
services shall be applicable in addition to the basic hourly rate. SAP shall
xxxx such fees and expenses monthly, attaching time sheets or other records
customarily used by SAP.
DESCRIPTION OF WORK
PLUMA, INC.
BY: _____________________________ DATE: _______________
TITLE:___________________________
SAP AMERICA, INC.
BY:______________________________ DATE:________________
TITLE:___________________________
SCHEDULE B
to
Professional Service Agreement
Rates
The following SAP categories have been defined for SAP consultants:
K1 = Junior Consultant
K2 = Consultant
K3 = Senior Consultant
K4 = Senior System Consultant/Management consultant
K5 = Client Manager
K6 = Developer or Consulting Manager
K7 = Senior Developer
The rates applicable to each category in US dollars are as follows:
K1 K2 K3 K4 K5 K6 K7
Daily rate $1,000 $1,200 $1,400 $1,600 $1,900 $2,500 $3,000
(up to 8 hours)
Half day rate $500 $600 $700 $800 $950 $1,250 $1,500
(up to 4 hours)
Hourly rate of $125 $150 $175 $200 $200 $350 $425
overtime
Expenses: as incurred per visit
Mileage: 0.31 per mile
If customer specific modifications are carried out in SAP's computer center,
a machine time surcharge of $500 per day will be added to the above rates. If
a separate test system is required to carry out Modifications and Extensions,
an additional fee will be charged, based on resources required.
- If Software is supplied by SAP, SAP will provide all support services
including program modification (in the SAP DP center)
- Accommodations and use of public transportation facilities will be
charged according to actual expenditure.
- For work at customer's premises, a minimum charge amounting to the
half day rate for the given consultant is billable. Travel costs
are calculated from the consultant's principal office.
REMOTE CONSULTING SERVICES ADDENDUM TO
PROFESSIONAL SERVICES AGREEMENT
effective October 9, 1996
issued October 9, 1996
The parties hereto agree that the terms of this Addendum dated October 9,
1996 are hereby incorporated into the Professional Services Agreement dated
October 9, 1996 between SAP America, Inc. ("SAP") and Pluma, Inc. ("Company").
A. Description of Services:
1. SAP will provide Remote Consulting Services for the R/3 System
in the following areas:
a. System technology (i.e., tuning, ABAP/4 Workbench client
copy, etc.);
b. Business process (making use of table adjustment and
customizing facilities); and
c. Software changes/enhancements or support therefor.
2. SAP shall provide such services either through telecommunication
or dial access into Company's system.
B. Company Obligations:
1. Company shall request services from SAP in writing and provide an
adequate description of the problem.
2. Company and SAP shall agree upon an appointment for provision of
the service.
3. Company must be receiving SAP Software Maintenance for the R/3
System for the duration of this Agreement.
4. The Company shall obtain the technology required for accessing the
system (an on-line connection). The Company shall pay all costs
incurred for the connection.
5. The Company shall permit SAP to access its system in order to
provide the requested services.
6. The Company is obliged to test all solution recommendations and
configurations and to check their suitability before using them
in a production system. SAP shall not be liable for any damages
or loss resulting from Company failure to do so.
C. Consulting Rate:
1. SAP's current rate for remote consulting services is $270 per
hour of consulting started. This rate may be changed at any
time upon ninety (90) days prior written notice.
2. The minimum duration for each consulting session shall be
one (1) hour.
3. Preparation time for the consulting session relating specifically
to Company's inquiry will also be charged at the hourly rate
set out above.
Agreed to: Agreed to:
SAP America, Inc. Pluma, Inc.
SAP Company
By:____________________________________ By: (Sig of Xxxxxx X. Xxxxxx)
Name:__________________________________ Name: (Xxxxxx X. Xxxxxx)
Title:_________________________________ Title: Vice President of Operations
Date:__________________________________ Date: October 14, 1996
