EXHIBIT 4.18
OUTSOURCING AGREEMENT
This Outsourcing Agreement (this "Agreement"), entered into as of the 7th day of
November, 2004 by and between One Software Technologies (O.S.T.) Ltd., a company
organized and existing under the laws of the State of Israel (the "Contractor");
and Attunity Software Services (1991) Ltd. (a/k/a "Meyad") and Attunity Israel
(1992) Ltd., each a company organized and existing under the laws of the State
of Israel (collectively, the "Company").
WITNESSETH:
WHEREAS, the Company provides, among other things, certain software services to
certain customers, which it now desires to outsource to another
entity; and
WHEREAS, the Contractor is prepared to provide the outsourcing services to the
Company upon the terms and conditions set forth herein; and
WHEREAS, the Contractor possesses the appropriate degree of knowledge,
expertise, staff and equipment to perform the outsourcing services
according to the terms and conditions set forth herein;
NOW THEREFORE, in consideration of their mutual covenants and agreements
hereinafter set forth, the parties hereto hereby agree as follows:
1. Definitions
In this Agreement, the following capitalized terms shall have the meaning
ascribed to them below, unless otherwise provided herein:
1.1. "Affiliate" with respect to any entity means any other entity
controlling, controlled by or under common control with such entity.
As used in this definition, the term "control" means direct or
indirect ownership or voting control of fifty percent (50%) or more of
the equity or voting securities of the entity in question or having
the power to elect a majority of the board of directors (or similar
governing body) of the entity in question.
1.2. "Confidential Information" means any information, including but not
limited to any information relating to either Party's product plans,
designs, costs, prices, finances, marketing plans, business
opportunities, personnel, research, development or know-how, that is
provided in connection with this Agreement including but not limited
to, the Customer's data and for Company, including but not limited to,
the Intellectual Property Rights; provided however, that "Confidential
Information" will not include information that: (i) is or becomes
publicly known or available through no fault of the receiving Party;
(ii) the receiving Party can show it is independently developed by the
receiving Party; (iii) is lawfully obtained from a third party who has
the right to make such disclosure; or (iv) the receiving Party can
show it was known to the receiving Party prior to its disclosure
through no fault or breach of the receiving Party or a third party of
any confidentiality undertakings towards the disclosing Party.
1.3. "Consultants" means the individuals engaged by the Company as
consultants (the so-called "freelance" employees) immediately prior to
the Effective Date in
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connection with providing the Services, a list of which is included in
Exhibit A1 hereto, which also includes details pertaining the key
terms of such engagement with the Company.
1.4. "Consulting Fees", "Maintenance Fees" and "Fees" each have the meaning
set forth in Section 8.1 (Fees).
1.5. "Consulting Services" means consulting services provided by the
Company to certain of its Customers (including as related to the
MF-ERP system, otherwise known as "Mancal 2000"), which Contractor
shall provide as a sub-contractor for Company pursuant to this
Agreement. A detailed list of such Customers, along with a brief
description of the Consulting Services provided to each Customer, is
attached as Exhibit B hereto as well as consulting services performed
pursuant to the New Agreements.
1.6. "Customer" means a customer of the Company that, immediately prior to
the Effective Date, received Consulting Services and/or Maintenance
Services from the Company, in accordance with Exhibits B and C
respectively.
1.7. "Effective Date" has the meaning set forth in Section 2.1 (Term).
1.8. "Employees" means the employees employed by the Company immediately
prior to the Effective Date in connection with providing the Services,
a list of which is included in Exhibit A2 hereto, which also includes
details pertaining the key terms of such employees employment with the
Company.
1.9. "Employee Declaration" has the meaning set forth in Section 6.1.1
(Employees).
1.10."Hired Employee" has the meaning set forth in Section 6.1
(Employees).
1.11."Intellectual Property Rights" means patents, patent applications,
patent rights, trademarks, copyrights (including those in computer
programs, drawings, documentation and specifications), proprietary
rights in information (including in data, trade secrets, inventions,
discoveries, know-how, formulae, processes, technical information and
business information), license rights under the intellectual property
rights of third parties, and all other intellectual property rights
whether or not subject to statutory registration or protection.
1.12."Maintenance Services" means maintenance services and ancillary
services, including, but not limited to, management services, provided
by the Company to certain past and existing customers, for "Mancal
2000". A detailed list of such Customers, along with a brief
description of the Maintenance Services provided to each Customer is
attached as Exhibit C hereto as well as maintenance services performed
pursuant to the New Agreements.
1.13."Managers" has the meaning set forth in Section 4.5 (Programs
Manager).
1.14."Minimum Level" has the meaning set forth in Section 8.4 (Minimum
Level).
1.15."Parties" means the parties to this Agreement and "Party" refers to
either of Parties.
1.16."Services" shall mean the Maintenance Services and the Consulting
Services.
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1.17."Service Agreements" means agreements between the Company and the
Customers for the provision of the Consulting Services and Maintenance
Services, including New Agreements.
1.18. "Term" has the meaning set forth in Section 2.1 (Term).
1.19."Working Day" means Sunday through Thursday, except for days that are
designated as statutory public holidays in Israel.
2. Term of Agreement
2.1. Term. This Agreement will be effective as of November 1, 2004 (the
"Effective Date") and remain in effect for a period of two (2) years
thereafter, and thereafter as may be renewed pursuant to Section 2.2
below (the "Term"), unless terminated earlier pursuant to Section 11
(Termination).
2.2. Renewal. This Agreement shall be automatically renewed for two (2)
successive two (2) year periods, unless one Party provides the other
Party with written notice of its desire not to renew this Agreement at
least ninety (90) days prior to the commencement of each such two-year
period.
3. Representations, Warranties and Covenants
3.1. Contractor. Contractor hereby represents, warrants and covenants that:
(a) all corporate actions required to be taken by or on behalf of
Contractor, authorizing the execution, delivery and performance of
this Agreement (and all related documents) have been duly taken, that
Contractor has full authority to enter into this Agreement (and to
execute all related documents), and the person/persons signing this
Agreement (and all related documents) on Contractor's behalf are duly
authorized to bind it; and (b) subject to the retention of the Hired
Employees by the Contractor, as provided under Section 6.1 hereunder,
it has the necessary experience, expertise, capability and manpower to
carry out its obligations and undertakings hereunder and under all
other related documents and agreements ancillary hereto.
3.2. Company. Company hereby represents, warrants and covenants that all
corporate actions required to be taken by or on behalf of Company,
authorizing the execution, delivery and performance of this Agreement
(and all related documents) have been duly taken, it has full
authority to enter into this Agreement (and all related documents),
and the person/or persons signing this Agreement (and all related
documents) on Company's behalf are duly authorized to bind it.
3.3. Cooperation by Parties. The Parties will use good faith efforts to
reasonably cooperate with each other in all matters relating to the
provision of the Services,
4. Services
4.1. Services. Contractor shall (i) perform and render the Services,
including, but not limited to, supplying manpower services to perform
and render the Services; and (ii) provide management services for the
performance of the Services, subject to the terms and conditions set
forth in this Agreement. The Contractor
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acknowledges that certain Services require the allocation of employees
for onsite (Customer's facility) maintenance and support on an ongoing
basis.
4.2. Additional Obligations.
4.2.1. The Contractor shall punctually and diligently provide, execute
and perform the Services, providing the Company and the Customers
with the benefits of Contractor's best, informed and professional
judgment and expertise and, with respect to Maintenance Services,
in accordance with the general terms of services provided in
Exhibit D hereto. Without derogating from the foregoing, the
Contractor shall perform the Services in a manner that will not
cause the Company to be in breach of any of the New Agreements
(as defined in Section 4.4).
4.2.2. Without derogating from Section 4.2.1 above, the Contractor
shall perform the Maintenance Services at least in the same level
as Exhibit D hereto.
4.2.3. During the Term, the Contractor shall obtain and maintain, at
its own expense, industry standard insurance coverage from
reputable insurance companies. The Contractor, upon the Company's
request, shall provide the Company with evidence of this
insurance coverage signed by an authorized representative of the
insurance company. The coverage documentation must contain
customary provisions for thirty (30) day advance written notice
to the Company of any change, non-renewal or cancellation.
4.2.4. Contractor undertakes to promote the activity of the Services.
4.3. Customer's Decisions. Without derogating from the generality of
Section 4.2 above, it is further hereby agreed that in respect of the
Service Agreements and in relation to the provision, carrying out,
completion and warranty of the Services hereunder: (a) the Contractor
shall conduct the Services in a manner which shall be no less then as
specified in Exhibit I attached hereto; and (b) the Contractor shall
not be entitled as against the Company to dispute, or otherwise
challenge or allege invalidity or inapplicability of any Customer's
decision that is or becomes at any time finally binding on the Company
under the Service Agreements.
4.4. New Services/Customers. In the event of the provision of new or
extended services to a Customer(s) and/or new customers during the
Term, the Contractor may negotiate and execute such agreements on
behalf of the Company (which Services shall be performed by
Contractor); provided that (i) such agreement(s) are for provision of
services in the ordinary course of business and are consistent with
the Company's pricing policy and guidelines set forth in Exhibit E
hereto, as may be modified from time to time, (ii) the Company is
notified of such agreement(s) and the terms thereof, and (iii) any
agreement (or a series of related agreements) which is for amounts or
value that exceeds $20,000 (except that with respect to new customers,
amounts or value that exceeds $10,000) , , shall be subject to
Company's prior written consent, which shall not be unreasonably
withheld (the "New Agreements"). For the avoidance of doubt, the
invoices for services shall be issued by the Company , the agreements
will be signed by the company and where applicable the Company will
confirm the PO'S issued by customers.
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4.5. Managers. As part of the management of the Services, each of Company
and Contractor will designate a person to be a single point of contact
to handle matters related to the day-to-day administration of this
Agreement, including, but not limited to, maintaining and assisting in
renewal of Customer contacts and Services (the "Managers"). The
initial Manager on behalf of the Company shall be: Xxxxxxxx Xxxxx; and
the initial Manager for the Consulting Services on behalf of the
Contractor shall be: Xxxxx Xxxxx, and the initial Manager for all
other services under this Agreement on behalf of the Contractor shall
be Xxxxx Xxxxx.
5. Reports, Quality and Inspection
5.1. Reports. The Company shall be entitled to full transparency insofar
such data pertains to the Services (including the Competing Services
(as defined below)), including performance thereof by the Contractor.
Without derogating from the foregoing, (i) the Company shall have
access to the Contractor's management and control computer systems
and/or books insofar such data pertains to the Services, and (ii) the
Contractor shall provide to the Company, promptly upon the Company's
request and in any event at least on a monthly basis, reports on the
Services provided by it to the Customers, in form and substance
reasonably acceptable to the Company.
5.2. Inspections. In the event that the Company receives a complaint from a
Customer regarding the Services or the Contactor's performance
thereof, the Contractor shall allow the Company to perform quality
control audits and inspections of the Services, during usual business
hours and upon reasonable prior notice.
6. Employees, Equipment and Facilities
6.1. Employees.
6.1.1. Within ten (10) days from the Effective Date, the Contractor
will offer employment (and a representative of the Company will
assist Contractor in coordinating the same) to all or part of the
Employees and Consultants, effective as of January 1, 2005 ("Hire
Date"), it being understood that the proposed salary and other
terms of such Employee or Consultant employment with the
Contractor shall be the same as the current salary (or
remuneration as to Consultants) and other terms of employment of
such Employee (or engagement with Consultant). Each Employee or
Consultant who accepts the Contractor's offer of employment and
signs an Employee Declaration shall be referred to herein as a
"Hired Employee". Each of the Hired Employees will be requested
to execute and deliver (i) to the Contractor a declaration that,
among other things, he or she acknowledges his or her willingness
to be employed by or engage with (as relevant) the Contractor as
of the Hire Date on the conditions specified in the Contractor
offer (an "Employee Declaration"), (ii) to the Company a waiver
that, among other things, he or she acknowledges that the Company
has fulfilled all of its obligations towards the Hired Employee
and that he or she has no claims whatsoever against the Company
and/or the Contractor with respect to or stemming from the term
of his or hers employment or engagement, respectively, with the
Company. It is hereby agreed by the parties that (i) the Parties
shall coordinate the processing of salary payments to the Hired
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Employees during a transition period starting from the Effective
Date and ending on the Hire Date, and (ii) Contractor shall
reimburse the Company for the salaries and social benefits paid
to Hired Employees for the period between the Effective Date and
the Hire Date.
6.1.2. To the extent that, after consultation between the Parties, an
Employee is being transferred rather than being terminated as set
forth hereinabove, then, within sixty (60) days from the
Effective Date, the Company shall transfer to Contractor the full
amounts of all social benefits allocated by the Company for the
Hired Employees, including, but not limited to, severance pay,
recreation pay, vacation pay, sick pay, retirement funds,
managers' insurance policies, education funds ("Keren
Hishtalmut") and any other funds to which any of the Hired
Employees is entitled as of the Hire Date as specified in Exhibit
A1 or A2.
6.1.3. The Company shall indemnify Contractor against any losses,
damages or expenses incurred by Contractor as a result of any
claim or suit raised by any Hired Employee, whose cause of action
arises out of or relates to a period prior to termination of such
Hired Employee's employment by the Company. The Contractor shall
indemnify Company against any losses, damages or expenses
incurred by Company as a result of any claim or suit raised by
any Hired Employee, whose cause of action arises out of or
relates to a period following termination of such Hired
Employee's employment by the Company.
6.2. Equipment. Certain computer equipment currently in use by the Company
for providing and rendering the Services to the Customers, as fully
detailed in Exhibit F hereto, shall be purchased by the Contractor for
the consideration of $32,805 as specified in Exhibit F, in 24 monthly
installments against issuance of invoice by the Company, and shall be
delivered to Contractor's facilities, at the Contractor's expense (the
"Equipment"). The Company shall have the right, within 10 days of
execution of this Agreement, to single out certain equipment from
Exhibit F, which total net book value as stated thereof shall not
exceed $8,000, as Equipment which shall not be purchased by the
Contractor according to this Agreement. The Parties shall both have
the right to use the Equipment during the Term for Attunity Connect
activity, as to the Company, and the Services, as to the Contractor.
6.3. Facilities. Certain facilities currently leased by the Company in
connection with providing and rendering the Services to the Customers,
as fully detailed in Exhibit G1 hereto, shall be sub-let by the
Company to the Contractor, subject to the same terms (including
payment of rent) and conditions as the Company's lease of such
facilities, which lease agreement is attached as Exhibit G2 hereto,
for the duration of the Term. It is hereby clarified that Contractor
shall bear only 80% of all payment of rent and other expenses relating
to the Facilities and the remaining 20% shall be borne by the Company.
Upon termination or expiration of this Agreement for any reason
whatsoever, all of such sub-leases shall terminate. The Company shall
have the right to use the Facilities during the Term for its Attunity
Connect activity.
7. Customers
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7.1. Service Agreements. For the avoidance of doubt, renewal or
modification of Services Agreements and entering into new agreements
with new customers of the Company shall be made pursuant to the
provisions of Section 4.4 above.
8. Fees; Payment
8.1. Fees. In full consideration of the Services provided hereunder,
Contractor will be entitled to receive from the Company:
8.1.1. Consulting Fees: 95% of revenues of the Company derived from
Consulting Services as of the Effective Date ("Consulting Fees");
and
8.1.2. Maintenance Fees: 57% of revenues of the Company derived from
Maintenance Services as of the Effective Date, based on the
Company' quarterly consolidated financial reports, except that
with respect to revenues (within each year) that are in excess of
US$586,000, 70% of such excess annual revenues ("Maintenance
Fees" and together with the Consulting Fees, the "Fees").
The Fees cover all costs, expenses, reimbursements, etc. and
Contractor shall not be entitled to any additional compensation other
than that stated hereinabove.
8.2. Payment of Consulting Fees. Payment of the Consulting Fees by the
Company to the Contractor shall be made on a monthly basis, within 15
days following receipt of a monthly invoice (issued subject to receipt
of the relevant data from Company). The monthly invoices shall be
calculated so that 80% of the Consulting Fees shall be paid to the
Contractor upon invoicing the Customer for Consulting Services and the
remaining 20% of the Consulting Fees shall be paid to the Contractor
upon the Company's actual receipt of payment from the Customer for
such Consulting Services, in the monthly payment immediately following
such payment by the Customer.
8.3. Payment of Maintenance Fees. Payment of the Maintenance Fees by the
Company to the Contractor shall be made on a monthly basis, within 15
days following receipt of a monthly invoice (issued subject to receipt
of the relevant data from Company). The monthly invoices shall be
calculated so that 80% of the Maintenance Fees, calculated as one
twelfths of the annual maintenance fees recognized by the Company in
the preceding month shall be paid to the Contractor no later than the
15th day of the following month and the remaining 20% of the
Maintenance Fees shall be paid to the Contractor upon the Company's
actual receipt of payment from the Customer for such Maintenance
Services, in the monthly payment immediately following such payment by
the Customer. It is hereby clarified that as to the maintenance fees
paid by Customers to Company preceding the Effective Date and relating
to Services to be performed following the Effective Date, Contractor
shall be entitled to fees pro-rata to the time Maintenance Services
are provided by it according to this Agreement, calculated according
to the prepaid incomes and incomes receivable attached hereto as
Exhibit H.
8.4. Minimum Level for Contractor. In the event that, commencing with the
second quarter (i.e., after the lapse of two consecutive quarters)
following the Effective Date, Contractor's actual costs solely for
providing the Services hereunder shall be
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equal to or exceed 95% of the Fees ("Minimum Level"), for any two
consecutive quarters, as reported in Contractors' quarterly
consolidated and reviewed financial reports, then Contractor shall be
entitled, within 30 days following the publication of said reports, to
request the Company to increase the Fees in a manner that will allow
Contractor to receive Fees, starting the next quarter and thereafter,
that will meet the Minimum Level. Should the Company object to such
request or not respond to it within 7 days thereafter, the Contractor
may, within 7 days thereafter, terminate this Agreement in accordance
with Section 11 (Termination) by providing the Company a 60 days prior
written notice.
8.5. Minimum Consulting Services Level. Notwithstanding Section 6.1 above
and without derogating from Section 10.3 below, Contractor undertakes
to employ at least nine (9) Employees and/or Consultants in the
provision of Consulting Services during the Term. Should, despite
Contractor's efforts to employ such service providers in the provision
of Consulting Services in accordance with this Agreement, the number
of such Employees and/or Consultants (or substitute service providers
engaged in Consulting Services under this Agreement) shall be less
then nine (9) (the "Service Providers"), calculated on a quarterly
average of the revenue derived from Consulting Services, then the
Parties shall negotiate in good faith a way to rectify the situation.
8.6. Supporting Material. All invoices issued hereunder shall be
accompanied by reasonable documentation and/or explanatory notes
supporting the invoiced charges. For the sake of clarification, such
supporting material will be acceptable under this Section 8.5
irrespective of whether it is contained in, and/or delivered in
electronic and/or computerized formats or whether it is contained in,
and/or delivered in, a non-electronic medium.
8.7. Tax. All Fees are exclusive of V.A.T., if applicable. Any payments
made by the Company to the Contractor under this Agreement are subject
to any withholding tax obligations pursuant to applicable law. Any
stamp tax which shall be due, if due, shall be borne equally by both
parties.
8.8. Nonpayment by Customers. To the extent that any Customer fails to pay
the Company and thereby Contractor is not paid (when due) by the
Company with respect to Services provided to such Customer, then
Contractor may cease providing the Services to such Customer upon 14
days prior written notice to the Company. Similarly, if any Customer
fails to pay the Company for any Services provided to such Customer by
Contractor, the Company may instruct Contractor to cease providing the
Services to such Customer upon 7 days prior written notice. In either
event, the parties shall consult prior to making any decision to cease
providing the Services and, at the Company's reasonable request,
Contractor shall cooperate with the Company in its efforts to collect
fees from Customers.
9. Indemnification
9.1. Indemnity. Subject to Company's fulfillment of its obligations under
Section 8 hereinabove, the Contractor shall, at all times indemnify,
hold harmless, and defend Company, its officers, directors, insurers,
Affiliates, agents and employees from and against any and all loss,
cost, liability or expense (including costs and
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reasonable fees of attorneys and other professionals) arising out of
or in connection with the provision of the Services hereunder,
including that a contractual obligation of the Company under the
Services Agreement was breached as a result of the Services or was not
performed.
9.2. Cooperation. Company will provide prompt written notice to Contractor
of any claim or the assertion of a claim by a third party giving rise
to the indemnity set forth in Section 9.1 above, provided, however,
that any failure to do so shall not limit any of the rights of the
Company (except and only to the extent such failure materially
prejudices the defense of such legal proceeding). Upon such notice,
Contractor shall have the right to defend against any such claims or
actions filed against Company, and to select counsel for such defense
reasonably acceptable to Company, and Contractor, at its expense,
shall pay all costs and expenses associated therewith. Company shall
cooperate reasonably with Contractor, in supporting the defense
against the claim or assertion.
10. Confidentiality; Proprietary Information.
10.1.Confidentiality. Each Party shall protect the other Party's
Confidential Information from unauthorized dissemination and use its
best efforts to prevent inadvertent disclosure of Confidential
Information to others, and shall treat the Confidential Information
with at least the same degree of care that each such Party uses to
protect its own like information, but at a minimum, with a reasonable
degree of care or, a higher standard of care if reasonable under the
circumstances. Each Party shall not use the other Party's Confidential
Information for purposes other than those necessary to perform this
Agreement and only employees of the receiving Party who have a need to
know such Confidential Information will have access thereto. Each
Party shall not disclose to third parties the other Party's
Confidential Information without the prior written consent of the
other Party. Immediately upon termination or expiration of this
Agreement, or upon the request of a Party prior to the termination or
expiration of this Agreement, each Party shall return the other
Party's Confidential Information, and all copies thereof and all
documents or things containing any portion of any Confidential
Information, or obtain written approval for the destruction of the
other Party's Confidential Information, and all copies thereof, and in
such case, shall provide a written certificate of destruction within
thirty (30) days after such destruction. It is hereby clarified that
both parties shall be entitled to disclose Confidential Information
pursuant to any statutory or regulatory authority or court order;
provided it gives notice to the other Party as soon as possible and
such disclosure is made only to the extent so required.
10.2.Proprietary Information. All Confidential Information of the Company
and any improvements to any designs, plans, inventions, concepts or
ideas of the Company, including, without limitation, during
Contractor's performance under this Agreement, are proprietary to the
Company and shall at their inception be and remain the sole and
exclusive property of the Company. Parties agree that any idea,
discovery or improvement, which is conceived or first reduced to
practice by any Party in connection with any work performed by
Contractor or Hired Employees using the Confidential Information of
the Company, shall be the sole property of the Company.
10.3. Supply of Services.
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10.3.1. During the Term, the Contractor may not, directly or indirectly
(including through its Subsidiaries, of which it holds more than 50%
of the share capital or voting rights) supply services which: (i)
substitute one service provider (Employee, Consultant or the like)
with another, to render Consultant Services actually rendered to
Customers; (ii) expand the number of service providers to Customer at
the services actually rendered to it; or (iii) are related to "Mancal
2000" (collectively, the "Competing Services"), except if such
services are provided on behalf of the Company in accordance with the
provisions of this Agreement. To the extent this Agreement is
terminated, then for a period of one year thereafter, Contractor shall
not, directly or indirectly, supply the Competing Services.
10.3.2. In the event that Customer shall desire, or should Contractor (or
any of its subsidiaries) shall desire to offer a Customer, to replace
"Mancal 2000" with an alternative ERP system, Contractor shall be
entitled to do so subject to the prior written approval of Company.
Notwithstanding the aforesaid, this provision shall not apply to any
sale by Contractor to, Delcol and Iscar, all such sales not subject to
this Agreement.
11. Termination
11.1.Termination. Either Party may terminate this Agreement (i)
immediately, if the other Party shall voluntary file a petition in
bankruptcy or if any involuntary petition under bankruptcy or
insolvency laws is instituted against the other Party and not stayed,
enjoined, or discharged within forty-five (45) days from their
commencement; and (ii) if the other Party's failure to perform any of
its obligations under this Agreement was not cured within thirty (30)
days after providing it with written notice requiring to correct such
failure and, with regard to the Company, if the Company failed to pay
the Contractor its fees and such failure was not cured within thirty
(30) days after providing it with written notice requiring it to
correct such failure; (iii) upon mutual written consent; or (iv) by
Contractor, as set forth in Section 8.4 above.
11.2.Termination by Contractor. Contractor shall have a right to terminate
this Agreement if (i) less than fifteen (15) of the Employees
(including Consultants) from the list attached as Exhibit A1 and
Exhibit A2, or (ii) less than 3 of those Employees (including
Consultants) from the list attached as Exhibit A1 and Exhibit A2 who
are indicated as key Employees (by an asterisk on those exhibits),
accept Contractor's offer of employment as set forth in Section 6.
Contractor's right to terminate this Agreement as aforesaid is
exercisable for a period of 10 days following the Effective Date and
this Section 11.2 shall be deemed null and void within 10 days
following the Effective Date.
11.3.Effect of Termination. Upon termination or expiration of this
Agreement for any reason whatsoever:
11.3.1. Contractor will, to the extent and at times specified by
Company, stop all outstanding Services, incur no further direct
costs, which are not essential to its performance of obligations
under this Agreement, and protect all property in which Company
has or may acquire an interest. Company will have the option to
request that Contractor complete work in process pursuant to any
Services provided on the date of termination and, in such
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case, Contractor shall complete such work-in-process; for
remaining work-in-process not to be completed as per Company stop
work order, provided Company payment of all fees due to
Contractor as of the termination and a reasonable pro rata
percentage of the finished Services price;
11.3.2. Company will compensate Contractor for all Services performed
by Contractor as of the termination date pursuant to Section
11.3.1 above;
11.3.3. Company may, at its sole discretion and subject to Employees
consent, re-hire any Hired Employee that transferred to the
employ of the Contractor pursuant to and subject to the terms of
Section 6.1 (Employees), mutatis mutandis, or any other employees
that are employed at that time by the Contractor to perform and
render the Services. It is hereby clarified that should Company
request Contractor to complete work in process as specified in
Section 11.3.1 above, Company shall be entitled to re-hire only a
part of such Employees that is not necessary for Contractor to
complete work in process (and once the work is completed, Company
be entitled to rehire those Employees as well).
11.3.4. Upon termination or expiration of this Agreement for any
reason whatsoever, the Equipment shall be promptly resold to the
Company in good and working condition except for reasonable wear
stemming from normal and reasonable use, at the prices stated in
Exhibit F, less depreciated cost according to generally accepted
accounting principles.
11.3.5. All of the sub-leases of facilities sub-let by the Company to
the Contractor, as detailed in Exhibit G1, shall terminate,
pursuant to the provisions of Section 6.3 (Facilities).
11.3.6. Each Party will return to the other, freight collected, all
materials that contain the other's Confidential Information and
all copies thereof and all documents or things containing any
portion of any Confidential Information, or if the other Party
gives written instructions to do so, destroy all such materials
and copies thereof and all documents or things containing any
portion of any Confidential Information, and provide the other a
written certificate of destruction within thirty (30) days after
such destruction.
11.3.7. Contractor will reasonable ensure a smooth and orderly
transition of the provision of the Services to Company.
12. General Terms
12.1.Relationship of the Parties. Each of the Parties will at all times
during the Term act as, and will represent itself to be, an
independent contractor. Without derogation from Section 4.4 above, no
Party will have any right or authority to assume or create any
obligations or to make any representations or warranties on behalf of
the other Party whether express, implied, the appearance of, or
otherwise to bind the other Party in any respect whatsoever.
12.2.Assignment. The rights and liabilities of the Parties hereto will
inure to the benefit of the Parties and their respective successors
and permitted assigns. This
11
Agreement is not assignable by the Parties without the prior written
consent of the other Party. Notwithstanding the foregoing, either
Party may assign its rights and obligations hereunder to (i) any of
its Affiliates and/or (ii) any assignee in connection with a merger,
consolidation or acquisition of all or substantially all of the assets
of the party by such assignee, provided, that such Affiliate or
assignee shall agree in writing to be bound by this Agreement and
deliver such instrument to the non-assigning party.
12.3.Publicity. Unless otherwise agreed by the Parties in writing or
required by law, regulation or under the requirement of any stock
exchange, all press releases, conferences, interviews or other public
announcements, in whatever form, in relation to this Agreement, shall
be coordinated by the Parties prior to publication. Even if required
by law, regulation or the requirement of any stock exchange, the
Parties will use their reasonable best efforts to discuss with each
other the content of any notice required prior to dispatch of the
same.
00.0.Xx Third-Party Beneficiaries. This Agreement is for the sole benefit
of the Parties and their permitted assigns and nothing herein
expressed or implied will give or be construed to give to any person,
other than the Parties and such permitted assigns, any legal or
equitable rights hereunder.
12.5.Severability of Provisions. If for any reason an arbitration
proceeding or a court of competent jurisdiction finds any provision of
this Agreement or portion thereof to be unenforceable, such provision
shall be construed, to the extent feasible, so as to render the
provision enforceable, and if no feasible interpretation would save
such provision, it shall be severed from the remainder of this
Agreement, which shall remain in full force and effect unless the
severed provision is essential and material to the rights or benefits
received by any Party hereto. In such event, the Parties shall use
their best efforts to negotiate, in good faith, a substitute, valid
and enforceable provision or agreement that most nearly effectuates
the Parties' intent in entering into this Agreement.
12.6.Waivers and Amendments. This Agreement may be amended, superceded,
cancelled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by the Parties or, in the case of
a waiver, by the Party waiving compliance. No delay on the part of any
Party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof. Failure by a Party to enforce any
provision of this Agreement will not be deemed a waiver of future
enforcement of that or any other provision. Both Parties expressly
reject any pre-printed terms and conditions of any Purchase Order
acknowledgment or any other form or document of either Party unless
expressly agreed in writing.
12.7.Notices. All notices required or permitted under this Agreement shall
be in writing, will reference this Agreement and will be deemed given
when: (i) delivered personally; (ii) sent by facsimile when confirmed
by counter-facsimile; (iii) five (5) Working Days (if within Israel)
or seven (7) Working Days (if internationally) after having been sent
by registered or certified mail, return receipt requested, postage
prepaid; or (iv) within three (3) Working Days when sent by commercial
overnight carrier. All communications will be sent to the addresses
set forth below or such other address or addresses as may be
designated by a Party by giving written notice to the other Party
pursuant to this Section.
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If to Company:
Attunity Israel (1992) Ltd. and Attunity Software Services (1991) Ltd.
x/x Xxxxxxxx Xxx.
0 Xxx Xxxx Xxxxxxxxx
Xxxxxxxx Pituach, 46733
Facsimile: 09-9541042
Attention: CEO
If to Contractor:
One Software Technologies (O.S.T.) Ltd.
00 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxxxx, Xxx-Xxxx 00000
Facsimile: 00-0000000
Attention: CEO
12.8.Resolution of Conflicts. In the event of any controversy or claim
arising out of or in connection with this Agreement, there will be
three levels of escalation: (i) the first level of escalation shall be
limited to fifteen days of discussion between, a representative of
Contractor and a representative of Company, (ii) the second level of
escalation shall be limited to fifteen days of discussion between the
AVPs of Contractor and Company, and (iii) the third and final level of
escalation shall be limited to fifteen days of discussion between each
of the general managers of Contractor and Company. Any such
controversy or claim not so resolved shall be finally settled by
arbitration in accordance with the Israeli Arbitration Law, 1968,
before a single arbitrator experienced in information technology
contracts law, to be appointed jointly and in good faith by the
Parties. The arbitrator shall give his reasoned decision in writing
and his decision shall be binding and conclusive on the parties
hereto.
12.9.Governing Law; Jurisdiction. This Agreement shall be subject solely
to and interpreted in accordance with the laws of the State of Israel,
without giving effect to its conflict of laws, principles or rules.
Without derogating from Section 12.8 above, any dispute arising under
or in relation to this Agreement shall be resolved in, and the sole
and exclusive jurisdiction shall be of, the competent court for Tel
Aviv-Jaffa district, and each of the parties hereby submits
irrevocably to the jurisdiction of such courts.
12.10. Entire Agreement. This Agreement (including Exhibits), contains the
entire agreement between the Parties with respect to the subject
matter hereof and thereof, and terminates and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral
or written, between the Parties.
12.11. Counterparts. This Agreement may be executed by the Parties hereto
in two or more separate counterparts, including by facsimile
transmission, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and
the same instrument.
12.12. Headings. The headings in this Agreement are for reference only and
shall not affect the interpretation of this Agreement.
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12.13. Further Assurances. The Parties shall use their best efforts to
fulfill or obtain the fulfillment of the conditions to this Agreement,
including, without limitation, the execution and delivery of any
document or other papers, the execution and delivery of which are
conditions precedent to this Agreement.
12.14. Variations in Pronouns. All pronouns and any variations thereof
refer to the masculine, feminine or neuter, singular or plural, as the
context may require.
12.15. Limitation of Liability. Except for Section 6.1.3 above, in no event
will any Party be liable to the other for any indirect and/or
consequential damage or loss resulting from or arising out of the
carrying out of its obligations under this Agreement. In any event a
Party's total and accumulative liability to the other Party or to any
other third party in connection with this Agreement shall not exceed
an amount of US$1,000,000.
12.16. Survival. The duties, obligations and rights of the Parties under
Sections 3, 6.2, 6.3, 9, 10, 11, 12.8 and 12.9 shall survive the
termination or expiration of this Agreement and shall inure to the
benefit of the Parties, their successors and assigns.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the
day and year first above written.
Attunity Software Services (1991) Ltd. One Software Technologies (O.S.T.) Ltd.
BY: BY:
------------------------ -----------------------
NAME: NAME:
--------------------- ----------------------
TITLE: TITLE:
-------------------- ---------------------
Attunity Israel (1992) Ltd.
BY:
------------------------
NAME:
---------------------
TITLE:
--------------------
[Signature Page to Outsourcing Agreement]
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List of Exhibits
----------------
Exhibit A1: List of Consultants (freelance)
Exhibit A2: List of Employees
Exhibit B: List of Customers of Consulting Services and brief description
Exhibit C: List of Customers of Maintenance Services and brief description
Exhibit D: General Terms/Level of Services (as provided by One)
Exhibit E: Guidelines for New Agreements
Exhibit F: Equipment to be sold and price therefor
Exhibit G1: Facilities to be sublet
Exhibit G2: Lease agreements
Exhibit H: Prepaid incomes and incomes receivable
Exhibit I: General Terms/Level of Services (as provided by the Company)
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