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EXHIBIT 10.4
ADDENDUM NO. XXX000000 TO THE SOFTWARE LICENSE AND SERVICES AGREEMENT BETWEEN
THE VANTIVE CORPORATION AND SAGE NETWORKS, INC.
VANTIVE AGREEMENT NUMBER: XXX000000
This Addendum (the "Addendum"), effective as of September 29, 1998 (the
"Addendum Effective Date") supplements and amends the terms of the Software
License and Services Agreement No. XXX000000 dated September 29, 1998
("Agreement") between The Vantive Corporation ("Vantive") and Sage Networks,
Inc. ("Client"). Capitalized terms not otherwise defined shall have the meaning
set forth in the Agreement.
The Parties agree to the following terms and conditions:
1. Section 2.1 A.i. of the Agreement, last line, after the words "rental
or" and before the words "service bureau", is hereby amended to add the
following: "third party".
2. Section 2.2 B. of the Agreement, is hereby amended to add the following
language to the end of this section: "Notwithstanding anything to the
contrary set forth in this Agreement, Client may assign this Agreement
or any Product licensed hereunder to Client's parent corporation or to
an affiliate(s) or to an entity which Client has sold all or
substantially all of its assets provided: (i) Client provides Vantive
with prior written notice; (ii) Client and any assignee are current in
all license and Customer Support fee payments to Vantive; (iii) the
assignee does not compete directly or indirectly with Vantive; (iv) the
assignee is not in the primary business of providing service bureau,
outsourcing or facility management services; (v) any such assignee
agrees in writing to be bound by the terms and conditions of the
Agreement; (vi) Vantive has had an opportunity to check the financial
ability of the assignee to pay for all license and Customer Support fee
payments and; (vii) the discounts shall not apply to the assignee for
orders placed after the date of assignment without the prior written
consent of Vantive. Additionally, upon written notice to Client,
Vantive may assign this Agreement to a parent, subsidiary or affiliate,
pursuant to a sale of substantially all of its assets or capital stock
or pursuant to its merger or consolidation with another party."
3. Section 2.3 of the Agreement, last line, after the word "annually", is
hereby amended to add the following: "so long as Vantive provides
reasonable advance notice to Client prior to conducting such audits."
4. Section 3.2 of the Agreement, the second paragraph is hereby deleted in
its entirety and replaced with the following: "Client agrees if Client
solicits or hires any Vantive employee, consultant or subcontractor on
the Vantive Implementation Project team within twelve (12) months from
the last date such person provided services hereunder, Client agrees to
pay Vantive 50% of the first year's total compensation package offered
by Client to that Vantive employee, consultant or subcontractor. For
purposes of this section, the Vantive Implementation Project team shall
include those employees,
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consultants or subcontractors involved in the design, customization and
implementation of the Products."
5. Section 3.3 of the Agreement, at the end of the first sentence after
the word "incurred", is hereby amended by adding the following:
"pursuant to Vantive's travel policy which is attached hereto as
Exhibit A."
6. Section 5.1 of the Agreement, first paragraph, is hereby amended to
delete the first three lines starting with the words "Vantive will
defend" and ending with the words "scope of this Agreement" and replace
them with the following: "Vantive will defend and indemnify Client
against any claim, damages, costs, or expenses (collectively referred
to as "claim"), including without limitation reasonable attorney's fees
and expenses related to Vantive's defense of the claim which shall mean
failure to defend a claim as described in this Section, that Products
furnished and used within the scope of this Agreement"
7. Section 5.1 of the Agreement, at the end of the section, is hereby
amended to add the following language: "Both parties agree that in the
event of breach of this Section 5.1 the other party shall be entitled
to attorney's fees, provided such party is the prevailing party."
8. Section 5.1 of the Agreement, first paragraph, fourth line down, after
the words "within 30 days" and before the words "of the claim", is
hereby amended to add the following: "of Client's receipt of notice"
9. Section 5.1 of the Agreement, second paragraph, fifth line down, is
hereby amended by deleting the word "provides" and replacing it with
"provided"
10. Section 5.1 of the Agreement, second paragraph, fifth line down, after
the words "to Client," is hereby amended to add the following:
"reasonably prior to the incident which gave rise to the claim"
11. Section 5.1 of the Agreement, third paragraph, at the end of the first
sentence, after the words "Commencement Date.", is hereby amended to
add the following sentence: "Notwithstanding the foregoing, Vantive
shall not be relieved of its obligations set forth in the first
paragraph of this Section 5.1."
12. Section 7.3 of the Agreement is hereby deleted in its entirety.
13. Section 7.4 of the Agreement is hereby modified by amending the
following language after the end of the first paragraph: "With a copy
to: Sage Networks, Inc."
00 Xxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attn.: General Counsel
Except as amended above, the Agreement shall remain unchanged and in full force
and effect.
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Executed by Client
Authorized
Signature: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
-------------------------------------------------
Title: President
-------------------------------------------------
Executed by The Vantive Corporation
Authorized
Signature: /s/ Xxxx Xxx
---------------------------------------
Name: Xxxx Xxx
---------------------------------------------
Title: Vice President of Finance
---------------------------------------------
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EXHIBIT A
VANTIVE POLICY REGARDING INVOICING FOR CUSTOMARY TRAVEL
AND LIVING EXPENSES
Vantive invoices its customers for customary travel and living expenses incurred
in the process of providing consulting, training or customer support services
that have been request by Vantive's customers.
The purpose of this document is to describe the guidelines that Vantive has
established for its consultants and other personnel ("consultants" hereafter in
this document) regarding travel and living expenses and Vantive's policies
regarding invoicing Vantive customers for such travel and living expenses.
Vantive consultants are encouraged to be prudent at all times regarding
incurring travel and living expenses. Special guidelines for travel and living
expenses and other administrative is described below.
We hope that this document provides you with useful information. If you have any
questions, please contact Vantive's Director of Finance at Vantive's corporate
headquarters of the Vantive regional consulting manager who handles consulting
services for your account.
GUIDELINES FOR TRAVEL AND LIVING EXPENSES
Air Travel
Vantive consultants travel non-stop coach class whenever possible.
Vantive's travel agency has been instructed to book Vantive consultants
on the lowest fare for non-stop flights that result in the consultant
traveling between the hours of 6:00 a.m. and 11:00 p.m. In general,
Vantive consultants are not asked to incur extra stops or take
"red-eye" flights in order to reduce the cost of air travel.
Overnight Lodging
Vantive consultants are encouraged to ask Vantive's customers for
recommendations regarding lodging. Vantive consultants attempt to stay
in accommodations that are located close to the customer's site and in
accommodations where the customer has negotiated preferred rates for
lodging.
Meals
Vantive consultants are allowed to submit either tactual expenses for
meals, or a per diem meal rate. For example, the Internal Revenue
Service standard per diem (a flat rate which includes amounts spent on
food, beverages, taxes and related tips) for meal allowance is $38 a
day for Santa Xxxxx County, California. There are designated per diem
meal rates for other locations in the United States. Please check the
attached per diem chart for guidelines. Vantive consultants are
encouraged to keep their daily meal expenses to $35 or less per day.
The default method for handling meal expenses may vary depending upon
the specific consultant who is performing work on a particular project.
If you (the customer) have a preference for actual expenses or per
diem, please inform the Vantive consulting manager who is responsible
for your project prior to the commencement of the project.
Incidental
Incidental expenses include costs for laundry, cleaning and tips for
services. Incidental expenses are normally not charged on consulting
engagements where the consultant is on the customer's site for less
than two weeks consecutively.
VANTIVE CONFIDENTIAL
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EXHIBIT A
Automobile. Public Transportation
Vantive consultants use their judgement in determining the use of
rented automobiles, tax, subway, etc. when traveling between airports,
train stations, places of overnight lodging and customer sites.
Automobile rentals are usually made on special corporate rates from
either Xxxxx, Xxxx or Budget rental car services.
Mileage Rate, Parking Fees and Tolls
The standard mileage rate for the cost of operating a consultant's
automobile is 30 cents per mile for all business miles. In addition to
using the standard mileage rate, consultants may submit all
business-related parking fees and tolls.
Other expenses that are directly related to the services provided by
Vantive
Vantive consultants are encouraged to make prudent purchasing decisions
for materials that are directly related to the providing of consulting,
training and customer support services. Expenses for these types of
materials are invoiced to Vantive's customers.
Other expenses that are not directly related to the services provided
by Vantive
Vantive does not invoice its customers for expenses incurred by Vantive
consultants for movies, shows and other types of expenses that are not
directly related to the providing of services to Vantive's customers.
Travel Expense Reports, Receipts, Administrative Costs and Invoices
Vantive consultants are required to submit travel expense reports for all travel
associated with Vantive Company business. The amounts to be invoiced to
customers are clearly indicated on the expense reports. Vantive consultants are
required to submit receipts for all expenses over $15. Vantive uses relevant
consultant expense reports in computing the amounts that are invoiced to
Vantive's customers. Copies of relevant expense reports are included with
invoices for travel and living expenses. Receipts are not included along with
the invoices. Receipts are provided upon request. If receipts are requested, a
15% administrative cost is added to the expenses that are invoiced to the
customer. If receipts are not requested, the travel and living expenses are
invoiced to the customer at Vantive's out of pocket cost.
Currency Conversions
For international expenses that require currency conversion, Vantive makes
reasonable efforts to compute the currency conversion at the average rate that
was in effect for the relevant international currencies during the time that the
Vantive employee was incurring international expenses.
Timing of Invoices
Vantive invoices its customers for travel and living expenses as soon as
possible after the receipt of the relevant expense reports from Vantive
consultants. These invoices are usually sent to customers within the two weeks
of the conclusion of the trip to the customer site by the Vantive consultant.
Invoices that require computation of currency conversions may require additional
time for processing.
VANTIVE CONFIDENTIAL
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