EXHIBIT 99.3
ALTIRIS / PREVIO CONFIDENTIAL
SERVICES AGREEMENT
This Services Agreement (the "AGREEMENT") is dated June 24, 2002 (the
"EFFECTIVE DATE") and is by and between the following Parties:
Previo: Previo, Inc.
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
U.S.A.
Tel: (000) 000-0000
Fax: (000) 000-0000
Altiris: Altiris, Inc.
000 Xxxx 000 Xxxxx
Xxxxxx, XX 00000
U.S.A.
Tel: (000) 000-0000
Fax: (000) 000-0000
The Parties hereby agree as follows:
1. DEFINITIONS
1.1 "CONFIDENTIAL INFORMATION" has the meaning set forth in Section
7.2.
1.2 "CONTRACT PROPERTY" means those deliverables developed for Altiris
under this Agreement (excluding the Licensed Software, which may be incorporated
or embodied in such deliverables). Contract Property may include, without
limitation, software, documentation, manuals, packaging, and other works of
authorship.
1.3 "DEVELOPMENT SCHEDULE" means the development schedule for the
Contract Property requested or agreed upon in writing by Altiris from time to
time.
1.4 "EFFECTIVE DATE" means the date first above written.
1.5 "PREVIO EMPLOYEES" has the meaning set forth in Section 3.8.
1.6 "SERVICES" means, collectively, all Development Services (as
defined in Section 2.1), Support Services (as defined in Section 4) and any
other services requested or agreed upon by Altiris from time to time.
1.7 "SERVICE FEES" has the meaning set forth in Section 5.1.
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ALTIRIS / PREVIO CONFIDENTIAL
1.8 "LICENSED SOFTWARE" means (a) the software programs owned by Previo
and licensed to Altiris under the terms of that certain Software License
Agreement entered into by and between Previo and Altiris and dated as of the
Effective Date (the "SOFTWARE LICENSE AGREEMENT"), and (b) any other software,
technology, methodologies and other materials developed by Previo or its
subsidiary for parties other than Altiris. The Licensed Software described in
(a) above is listed on EXHIBIT A attached hereto.
1.9 "SPECIFICATIONS" mean the features, compatibility, functionality,
performance, descriptions, requirements and other specifications for Contract
Property as requested or agreed upon in writing by Altiris from time to time.
2. DEVELOPMENT
2.1 DEVELOPMENT SERVICES. Previo agrees to develop and deliver Contract
Property to Altiris that conforms in all material respects to the applicable
Specifications and in accordance with the applicable Development Schedule
(collectively, the "DEVELOPMENT SERVICES"). The Parties shall reasonably
cooperate with each other towards the successful and timely completion of the
development and delivery of Contract Property meeting the requirements of
Altiris.
2.2 PROGRESS REPORTS. Previo shall provide written progress reports to
Altiris when reasonably requested by Altiris describing the status and progress
of the development of the Contract Property.
2.3 DELIVERY, TESTING AND CORRECTION. When Previo has completed a
deliverable, Previo will deliver the deliverable to Altiris for review and/or
testing. If Altiris reasonably determines that such deliverable does not conform
in all material respects with applicable Specifications or contains programming
errors or bugs, Altiris shall so notify Previo in writing (including via
e-mail). Such notice by Altiris shall specify in reasonable detail the
non-conformities and the requirements for acceptance. Previo agrees to correct
any such non-conformities as soon as reasonably possible, after which Previo
will re-deliver the corrected deliverable to Altiris. Review, testing and
correction will be repeated until all discovered non-conformities have been
corrected to Altiris' reasonable satisfaction. When review and testing by
Altiris show that all corrections have been made, that the deliverable conforms
in all material respects to the applicable Specifications, and that the
deliverable is reasonably satisfactory to Altiris, Altiris will accept the
software.
3. OWNERSHIP AND LICENSE RIGHTS
3.1 LICENSED SOFTWARE. Except as expressly set forth in the Software
License Agreement, Previo retains all rights, title and interest, including
without limitation all intellectual property rights, in and to the Licensed
Software.
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ALTIRIS / PREVIO CONFIDENTIAL
3.2 CONTRACT PROPERTY. Altiris shall own all Contract Property
(including all computer programs, documentation, code drops, designs, technology
and system snapshots) and all copyrights, trade secrets, patent rights and other
intellectual property in and to the Contract Property. The Contract Property
shall be a "work made for hire" to the extent possible under applicable
copyright law. Previo agrees to assign, and hereby assigns, to Altiris ownership
of the Contract Property and the copyrights, trade secrets, patent rights and
other intellectual property in and to the Contract Property. As the owner of the
Contract Property, Altiris may use, license, distribute, sell, copy, make, and
otherwise commercialize and exploit the Contract Property and create
modifications and enhancements thereto and derivative works based thereon, and
authorize or license others to do so, and exercise any and all other rights and
attributes associated with ownership, all without any obligation to account to
Previo. Nothing in this Agreement, or in the course of dealing between the
Parties, shall be construed to assign or transfer ownership of any of Altiris'
intellectual property to Previo or to any other party.
3.3 RESIDUALS. Previo and its subsidiary may freely use "residuals"
from the Contract Property, PROVIDED that Previo shall at all times maintain the
confidentiality of Altiris' Confidential Information as required under Section 7
below. As used in this Section 3.3, the term "residuals" means the Contract
Property in non-tangible form (i.e., not in written or other documentary form,
including tape or disk) which may be retained in the memory of Previo Employees
(as defined in Section 3.8) who have had access to the Contract Property
pursuant to this Agreement, including know-how, techniques and methods contained
therein, PROVIDED that such "residuals" shall not include Contract Property
committed to memory by Previo Employees for the purpose of copying the Contract
Property or otherwise avoiding Previo's obligations set forth in this Agreement.
3.4 SOURCE CODE AND DEVELOPMENT ENVIRONMENT. Previo shall deliver to
Altiris any and all source code, object code, executable code, pseudo code,
designs, programming documentation, flow charts, logic diagrams, specifications,
and other works of authorship that may be written or created as part of or in
connection with the Contract Property or its development and all of the
foregoing (excluding the Licensed Software) are deemed part of the Contract
Property for the purposes of this Agreement. Previo shall include comments in
the source code. The source code comments and organization and the programming
documentation given to Altiris shall be in conformance with professional
standards of computer programming and shall be sufficient to enable programmers
employed by Altiris to maintain and enhance the software. Previo shall also
deliver to Altiris the Development Environment for the Contract Property. The
"DEVELOPMENT ENVIRONMENT" means the software tools, utilities, development
automation software, and other code, materials and items used by Previo's
programmers (excluding any Licensed Software) to design, develop, compile,
build, test, maintain, and enhance the Contract Property. Anything needed to
compile or build the Contract Property (other than commercially available
operating systems, compilers, tool kits and products) shall be included in and
with the Development Environment. If a component of the Development Environment
is commercially available to the public, Previo need only identify the component
in a written document included with the Development Environment. The Development
Environment and all of Previo's intellectual property and proprietary rights in
and to the Development Environment are hereby licensed to Altiris on a
royalty-free, paid-up, non-exclusive, unlimited, perpetual, irrevocable,
non-terminable, assignable, and worldwide basis for use, copying, distribution,
and commercialization by Altiris. Altiris may grant sublicenses to others under
this license.
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ALTIRIS / PREVIO CONFIDENTIAL
3.6 REGISTRATION OF COPYRIGHTS. Altiris may register the copyright(s)
to the Contract Property with the U.S. Copyright Office and/or any other
applicable government agencies, entities or offices in any and all countries and
jurisdictions. Previo shall cooperate in all respects with the reasonable
requests of Altiris necessary to facilitate such registration.
3.7 RECORDATION. Altiris may record this Agreement or, at Altiris'
election, a notice and/or description of this Agreement or any assignment
herein, with the U.S. Copyright Office and/or any other government agencies,
entities or offices in any or all countries and jurisdictions. Previo shall
provide any cooperation reasonably requested by Altiris to facilitate such
recordation.
3.8 DEVELOPMENT BY EMPLOYEES. The development of the Contract Property
(including all design, coding, content and other contributions to the Contract
Property) shall be done only by employees of Previo or a subsidiary of Previo
(collectively, "PREVIO EMPLOYEES") (with the exception of contributions by
Altiris and its employees and contractors) within the scope of their employment.
Previo represents and warrants that it has contracts with all Previo Employees
involved in the development of the Contract Property pursuant to which such
employees have validly and properly made and will validly and properly make all
assignments of copyrights, trade secrets, patent rights and other intellectual
property needed for this Agreement. If Previo must engage the services of any
independent contractor, Previo shall first obtain Altiris' written approval and
a written contract satisfactory to Altiris with the independent contractor. The
contract must include an assignment to Altiris of all of the independent
contractor's right, interest and title in and to the Contract Property
(including copyrights, trade secrets, patent rights and other intellectual
property), reasonable non-disclosure and non-use provisions binding on the
independent contractor, and such other provisions as Altiris reasonably
requests.
3.9 ENFORCEMENT AND DEFENSE. Previo shall cooperate with all reasonable
requests by Altiris in connection with the enforcement or defense of any
copyrights or other intellectual property assigned to Altiris, or any
litigation, arbitration, mediation or settlement proceedings or meetings
relating to the Contract Property or such copyrights or other intellectual
property.
3.10 MORAL RIGHTS. For purposes of this Agreement, "MORAL RIGHTS" shall
mean any rights of paternity or integrity, any right to claim authorship of the
Contract Property, to object to any distortion, mutilation or other modification
of, or other derogatory action in relation to, the Contract Property, whether or
not such would be prejudicial to Previo's or the author's honor or reputation,
and any similar right, existing under judicial or statutory law of any country
in the world, or under any treaty, regardless whether or not such right is
denominated or generally referred to as a "moral" right. Previo hereby
irrevocably transfers and assigns to Altiris any and all Moral Rights that
Previo or any of the Previo Employees (or independent contractors, if
applicable) may have in or to the Contract Property. Previo, on behalf of itself
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ALTIRIS / PREVIO CONFIDENTIAL
and the Previo Employees, also hereby forever waives and agrees never to assert
any and all Moral Rights it or the Previo Employees (and independent
contractors, if applicable) may have in or to the Contract Property, at any
time. Notwithstanding anything herein to the contrary, this Section 3.10 (a)
applies only if and to the extent that it is valid and enforceable under, and
not in conflict with, applicable law and applicable international copyright
treaties, and (b) shall require no assignment or transfer that is in conflict
with applicable law or any applicable international copyright treaties.
3.11 FURTHER ASSURANCES. Previo shall execute and deliver to Altiris
such documents, assignments and further assurances as are reasonably requested
by Altiris to better evidence or document any assignment or rights of Altiris
under this Agreement or to further or support any of the purposes or provisions
of this Agreement.
4. SUPPORT SERVICES
Except as otherwise expressly provided in this Agreement (including
EXHIBIT B attached hereto), Previo (through its subsidiary) shall be responsible
for all customer support, consultation, training, maintenance and enhancement
services for the Licensed Software and Contract Property as set forth in EXHIBIT
B, as well as any other services that may be reasonably requested by Altiris
from time to time (collectively, the "SUPPORT SERVICES"). The Parties agree to
work together in good faith in a manner that preserves Previo's subsidiary's
ability to continue to perform its support obligations under its existing
customer agreements.
5. COMPENSATION
5.1 SERVICE FEES. Altiris shall reimburse Previo the fully-burdened
cost of providing the Services on and after the Effective Date up to a total
amount of $110,000 per month (or the applicable pro rated amount for any partial
month) ("SERVICE FEES"). Previo shall notify Altiris in advance if and when
Previo believes that the actual costs and expenses of providing the Services in
a given month will exceed the $110,000, in which event the Parties will promptly
negotiate in good faith an appropriate adjustment in the Service Fees for that
month to account for such increase in costs and expenses. Previo shall not
increase or decrease the number of employees providing Services as of the
Effective Date during the term of this Agreement without the prior written
consent of Altiris. In the event the number of employees is increased or
decreased, the Parties will promptly negotiate in good faith an appropriate
adjustment in the Service Fees to account for the increase or reduction of
available personnel.
5.2 INCIDENTAL EXPENSES. Altiris will pay Previo the total sum of
$3,000 per month to cover incidental, out-of-pocket expenses incurred by Previo
directly in the performance of the Services on and after the Effective Date.
Altiris shall have no other liability or obligation with respect to any expenses
incurred by Previo.
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ALTIRIS / PREVIO CONFIDENTIAL
5.3 INVOICING AND PAYMENT. All Service Fees (and expenses pursuant to
Section 5.2) will be invoiced monthly in arrears and will be payable thirty (30)
days from the date of receipt of invoice; PROVIDED, HOWEVER, that within three
(3) days after the Effective Date, Altiris shall deposit $200,000 in a bank
account to be designated by Previo which shall be an advance on such Services
Fees. Previo or its subsidiary shall have use of this money on an ongoing basis
only as necessary to fund expenses incurred by the subsidiary in performing
Services on and after the Effective Date, until the aforementioned invoices are
paid.
5.4 COMPLETE COMPENSATION. The payment of Service Fees (as may be
adjusted in accordance with Section 5.1) is full and complete compensation to
Previo under this Agreement. Altiris has no obligation to pay any royalties or
other payments or compensation to Previo, and no obligation to account to
Previo, for any use, copying, distribution, licensing, sale, or other
commercialization of the Contract Property.
5.5 TAXES. If any taxes must be withheld from or are applicable to any
payment under this Agreement, then such taxes shall be withheld or paid from
such payments. Such taxes are the responsibility of Previo. Altiris has no
obligation to pay such taxes in addition to the payments required by this
Agreement. Previo shall be responsible for any taxes, duties, or other
government assessments applicable to the design or development of the Contract
Property or its delivery to Altiris. Notwithstanding the foregoing, the Parties
acknowledge that each Service Fee payment includes any taxes, duties, or other
governmental assessments attributable to the performance of the Services or the
design or development of the Contract Property or its delivery to Altiris.
6. WARRANTIES AND INDEMNIFICATION
6.1 BY PREVIO
(a) AUTHORITY. Previo represents and warrants that it is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, that Previo has the corporate power
and authority to execute, deliver and perform this Agreement, that the
execution, delivery and performance of this Agreement has been duly authorized
and approved by all corporate action on the part of Previo, and that this
Agreement has been duly executed and delivered and is the legal, valid and
binding obligation of Previo enforceable against Previo in accordance with its
terms.
(b) CONTRACT PROPERTY AND SOFTWARE. Previo represents and
warrants that the Contract Property will be of merchantable quality suitable for
commercialization and will comply in all material respects with all applicable
Specifications, warranties and legal requirements, including any license or
permit requirements. Without limiting the generality of the foregoing warranty,
Previo represents and warrants that (i) any software included in the Contract
Property (1) will operate without error relating to date data, specifically
including any error relating to, or the product of, date data which represents
or references different centuries or more than one century, (2) will not
abnormally end or provide invalid or incorrect results as a result of date data,
specifically including date data which represents or references different
centuries or more than one century, and (3) will be designed to ensure date data
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ALTIRIS / PREVIO CONFIDENTIAL
century recognition, calculations which accommodate same century and
multi-century formulas and date values, and date data interface values that
reflect the century; (ii) all date-related interfaces and data fields in the
software will include an indication of century; (iii) all date processing by the
software included in the Contract Property will include a four-digit year format
and will recognize and correctly process dates for leap years; (iv) the software
included in the Contract Property will require that all date data (whether
received from users, systems, applications or other sources) include an
indication of century in each instance; and (v) all date output and results, in
any form, in the software included in the Contract Property will include an
indication of century in each instance. The term "DATE DATA" shall mean any
data, output or input which includes an indication of or reference to date.
(c) SELF-HELP CODE. Previo represents and warrants that no
copy of the software included in the Contract Property under this Agreement will
contain or be accompanied by any Self-Help Code or Unauthorized Code (as defined
below). "SELF-HELP CODE" means any back door, time bomb, drop dead device, or
other routine, code, algorithm or hardware component designed or used: (i) to
disable, erase, alter or harm the software portion of the Contract Property or
any computer system, program, database, data, hardware or communications
software, automatically with the passage of time, or under the control of, or
through some affirmative action by, a person other than Altiris, or (ii) to
access any computer system, program, database, data, hardware or communications
system of Altiris. "SELF-HELP CODE" does not include any code in the software or
any accompanying hardware component designed and used to permit Previo to obtain
access to the software portion of the Contract Property on Altiris' computer
system (e.g., remote access via modem) solely for purposes of providing
maintenance or technical support to Altiris, provided that such code or hardware
component is first disclosed to Altiris and approved by Altiris in writing.
"UNAUTHORIZED CODE" means any virus, Trojan horse, worm, or other routine, code,
algorithm or hardware component designed or used to disable, erase, alter, or
otherwise harm any computer system, program, database, data, hardware or
communications system, or to consume, use, allocate or disrupt any computer
resources. "UNAUTHORIZED CODE" does not include Self-Help Code.
(d) INFRINGEMENT. Previo represents and warrants that the
Contract Property will be of original development and design and that its
reproduction, sale, distribution and use will not infringe, misappropriate or
violate any copyright, patent, trade secret or other intellectual property right
of a third party or any right of privacy or personality or other right of a
third party.
(e) SERVICES. Previo represents and warrants that all Services
shall be performed in a professional and timely manner by competent personnel
qualified for the Services they perform.
6.2 DISCLAIMERS. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE,
NEITHER PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE,
REGARDING THE SERVICES OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND EACH
PARTY HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES OF TITLE OR NON-INFRINGEMENT.
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ALTIRIS / PREVIO CONFIDENTIAL
6.3 INDEMNIFICATION. Previo shall indemnify and hold harmless Altiris,
its subsidiaries, and their respective successors and assigns, and their
respective stockholders, officers, directors, employees, agents and legal
representatives (each, an "ALTIRIS INDEMNIFIED PARTY") for the full amount of
any and all judgments, settlements, demands, claims, actions or causes of
action, assessments, liabilities, losses, damages, interest, fines, penalties,
costs and expenses (including, without limitation, reasonable legal, accounting
and other costs and expenses) incurred in connection with investigating,
defending, settling or satisfying any and all demands, claims, actions, causes
of action, suits, proceedings, assessments, judgments or appeals, and in seeking
indemnification therefor, suffered by an Altiris Indemnified Party as a result
of (a) the inaccuracy of any representation or warranty made by Previo in this
Agreement or any schedule, certificate or document delivered in connection
herewith (it also being understood that Previo's indemnification obligation
under the terms and conditions of this Section 6.3 will extend to Altiris'
distributors, resellers, VARs, OEMs, dealers, retailers and other product
distribution intermediaries in the event of a breach of warranty under Section
6.1 (b), (c) or (d)); or (b) the failure by Previo to perform or comply with any
obligation, covenant or agreement of Previo specified in this Agreement;
PROVIDED, HOWEVER, that (i) Previo shall have exclusive control of the defense
and settlement of any third party claims against an Altiris Indemnified Party;
and (ii) Previo shall have no indemnification obligation for any third party
infringement claim based on any modification, derivative work or other
enhancement to the Contract Property made by or on behalf of Altiris in
accordance with specifications supplied by Altiris.
6.4 SURVIVAL OF TERMS. All representations and warranties set forth in
this Agreement will remain in effect through (a) September 30, 2002, or (b) the
termination of this Agreement, whichever is later.
7. PROTECTION OF ALTIRIS
7.1 SOFTWARE AND SOURCE CODE. Notwithstanding Section 7.2 below or any
other provision in this Agreement, Previo shall not disclose or transfer to any
third party (a) any Contract Property, including without limitation, any source
code or documentation included in the Contract Property, or (b) any Altiris
product or technology, including without limitation, any source code or
documentation therein.
7.2 CONFIDENTIALITY OBLIGATIONS. The parties may disclose or exchange
certain information, including Confidential Information, as necessary for
purposes of this Agreement. "CONFIDENTIAL INFORMATION" means any information (a)
disclosed in tangible form that is conspicuously marked as "confidential" or by
other restrictive legend, or (b) disclosed verbally and identified as
confidential at the time of disclosure. In either case, the receiving party
shall exercise reasonable care to maintain the confidentiality of the disclosing
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ALTIRIS / PREVIO CONFIDENTIAL
party's Confidential Information; PROVIDED, that the receiving party may
disclose Confidential Information to employees and consultants who have a need
to know and who have been informed of the confidential nature of the
information, and may otherwise disclose such information to the extent required
by applicable laws, rules and/or regulations (including, without limitation,
those relating to applicable securities laws). No obligation of confidentiality
applies to any Confidential Information that (i) is or becomes publicly
available through no breach of the receiving party, (ii) was rightfully in the
possession of the receiving party prior to disclosure hereunder without
obligation of confidentiality, (iii) was rightfully disclosed to the receiving
party without obligation of confidentiality, or (iv) was independently developed
by the receiving party without reference to or use of the disclosing party's
Confidential Information.
7.3 RESTRICTIONS. Except as necessary in the development of the
Contract Property, Previo shall not use any Altiris Confidential Information.
Previo shall not directly or indirectly disclose or transfer any Altiris
Confidential Information to any other person, company or entity.
7.4 RETURN OF DELIVERABLES. Any and all deliverables and other
documents, code, items and materials provided by Altiris in connection with this
Agreement and all copies thereof shall be returned or delivered by Previo to
Altiris upon Altiris' request, and Previo shall retain no copy thereof.
7.5 RIGHTS OF OTHER PERSONS. Previo shall not disclose to Altiris or
use in the design or development of any Contract Property any code, work of
authorship, technology or intellectual property which is proprietary to any
other person, company or entity.
7.6 INJUNCTIVE RELIEF. Previo agrees that a breach by Previo of this
Agreement will cause irreparable injury to Altiris not adequately compensable in
monetary damages alone or through other legal remedies. Therefore, in the event
of a breach, Altiris shall be entitled to preliminary and permanent injunctive
relief and other equitable relief in addition to damages and other legal
remedies.
7.7 EXCLUSIVITY. For the period beginning upon the Effective Date and
ending one year after Previo ceases all services for Altiris under this
Agreement, Previo (including its subsidiaries) shall not, directly or
indirectly, without the prior written consent of Altiris, offer or provide to
any affiliate or third party any design, development, consulting or other
services, or engage in any activities, that are competitive with Altiris, its
business or products. Previo acknowledges that its obligations under this
Section 7.7 are material to this Agreement.
8. TERM AND TERMINATION
8.1 TERM OF AGREEMENT. This Agreement shall become effective on the
Effective Date and shall continue in effect for a period of one (1) year (the
"INITIAL TERM"), unless earlier terminated as set forth in this Section 8. After
the Initial Term, this Agreement will continue in effect until terminated by
either Party as provided in this Section 8.
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8.2 TERMINATION WITHOUT CAUSE. Either Party may terminate this
Agreement for any or no reason by giving at least 90 days' prior written notice
to the other Party.
8.3 TERMINATION FOR CAUSE. Either Party may terminate this Agreement by
giving written notice of termination to the other Party if the other Party is in
material breach of any of its obligations under this Agreement and such breach
has not been cured within 90 days (30 days for breach of any payment
obligations) after receipt of written notice of breach.
8.4 TERMINATION UPON LIQUIDATION. Previo may terminate this Agreement
upon fourteen (14) days' prior written notice to Altiris received on or after
the date Previo obtains the approval of its stockholders authorizing Previo's
dissolution and liquidation of assets.
8.5 TERMINATION FEE. In the event (a) Altiris terminates this Agreement
for any reason, or (b) Previo terminates this Agreement under Section 8.4 or
under Section 8.3 based on Altiris' breach of its payment obligations, and such
termination directly results in the termination of Previo's subsidiary's
employees performing Services under this Agreement, Altiris agrees to pay, on or
before the effective date of termination, a termination fee equal to the
severance requirements (to the extent legally required) and the associated cost
of employer payroll taxes for each terminated employee consistent with the
applicable sections of the Estonian Employment Contracts Act, Chapter 5,
Division 4, which reads in relevant part:
ss. 87. Advance notice to employee of termination of employment
contract, and justification of termination thereof: . . .
(3) upon lay-off of employees: not less than two months in advance if
the employee has been continuously employed by the employer for less
than five years; not less than three months in advance if the employee
has been continuously employed for five to ten years; not less than
four months in advance if the employee has been continuously employed
by the employer for more than ten years; and
ss. 90. Payment of compensation to employee.
(1) Employers are required to pay the following compensation to
employees upon termination of their employment contracts:
1) due to the liquidation of the enterprise, agency or other
organisation (clause 86 1), declaration of bankruptcy of the employer
(clause 86 2), lay-off of employees (clause 86 3)) or age (clause 86
10):
a) compensation in the amount of two months' average wages to employees
who have been continuously employed by the employer for up to five
years;
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ALTIRIS / PREVIO CONFIDENTIAL
b) compensation in the amount of three months' average wages to
employees who have been continuously employed by the employer for five
to ten years; and
c) compensation in the amount of four months' average wages to
employees who have been continuously employed by the employer for more
than ten years.
8.6 OBLIGATIONS ON TERMINATION. Upon termination for any reason,
Altiris shall pay to Previo (in addition to any payment made under Section 8.5)
all Service Fees for Services performed in accordance with the terms and
conditions of this Agreement up to the effective date of termination, and Previo
shall promptly deliver to Altiris all completed Contract Property and work in
progress under this Agreement. Except as otherwise expressly set forth in this
Agreement, termination of this Agreement will not affect any pre-termination
obligations of either Party under the Agreement, and any termination is without
prejudice to the enforcement of any un-discharged obligations existing at the
time of termination. Except as expressly set forth in Section 8.5 and this
Section 8.6, neither Party will by reason of the termination of the Agreement be
liable for any compensation, reimbursement, or damages on account of the loss of
prospective profits or on account of expenditures, investments, leases, or
commitments in connection with the other Party's business or goodwill, or
otherwise.
9. GENERAL PROVISIONS
9.1 COSTS AND EXPENSES. Except as expressly set forth in Section 5.2,
each Party shall be responsible for the costs and expenses incurred by it and
its employees and representatives.
9.2 GOVERNING LAW AND FORUM. This Agreement shall be governed by the
laws of the State of Utah without giving effect to conflict of law principles.
The United Nations Convention on Contracts for the Sale of Goods shall not be
applicable and is rejected by the parties. Any litigation between the Parties
concerning this Agreement or its subject matter shall be conducted exclusively
in state or federal court in the state of Utah and the Parties consent to such
jurisdiction and venue.
9.3 COMPLIANCE WITH LAW. Previo shall perform the Services in
compliance, in all material respects, with all applicable laws, ordinances,
legal requirements, rules, regulations and orders.
9.4 ENTIRE AGREEMENT. This Agreement (including its Exhibits): (i)
represents the entire agreement between the Parties concerning the subject
matter of this Agreement, (ii) supersedes all prior agreements, understandings,
term sheets and representations relating to the subject matter of this
Agreement, and (iii) may only be amended by a writing signed by both Parties.
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ALTIRIS / PREVIO CONFIDENTIAL
9.5 NO ASSIGNMENT BY PREVIO. In the absence of Altiris' advance written
consent, Previo shall not have the right or power to assign or transfer this
Agreement or any rights under this Agreement or to delegate any duties or
responsibilities under this Agreement to any third party, except that Previo may
(a) assign or transfer this Agreement or any rights under this Agreement to a
liquidation trust established to liquidate the assets of Previo, and (b)
delegate certain of its responsibilities hereunder to its Estonian subsidiary,
so long as Previo remains fully responsible and liable for its obligations under
this Agreement. Subject to the foregoing sentence, this Agreement shall not be
deemed to have been assigned or transferred by operation of law (e.g., in a
merger or consolidation) or otherwise without Altiris' prior written consent.
Any such attempt to assign, transfer and/or delegate without Altiris' prior
written consent shall be void and of no effect. Any assignee or transferee to
whom this Agreement is assigned or transferred must agree, in a writing
delivered to the non-assigning or non-transferring Party, to be bound by this
Agreement in the same manner that the assigning or transferring Party is bound
by this Agreement.
9.6 NOTICES AND COMMUNICATIONS. All notices and consents permitted or
required under this Agreement must be in writing and shall be delivered to the
other Party at the address set forth at the beginning of this Agreement or such
substitute address as the other Party may specify for itself by written notice.
All communications between the Parties shall be in English.
9.7 RELATIONSHIP. The Parties understand and agree that Previo will
provide Services under this Agreement on a professional basis and as an
independent contractor and that during the performance of such Services,
Previo's employees will not be considered employees of Altiris within the
meaning or the application of any federal, state or local laws or regulations
including, without limitation, laws or regulations covering unemployment
insurance, retirement benefits, employee or worker compensation, accident,
health, medical or life insurance, labor or taxes of any kind. Previo's
personnel who are to perform the Services to be provided by Previo hereunder
shall be under the employment, and ultimate control, management and supervision
of Previo. Neither Party is the partner, joint venturer, agent or representative
of the other Party and neither Party has the authority to make any
representations or warranties or incur any obligations or liabilities on behalf
of the other Party. Neither Party shall make any representation to any third
party inconsistent with this Section.
9.8 CONSTRUCTION. This Agreement represents the language selected by
the Parties to define their agreement and no rule of strict construction shall
apply against any Party. Whenever the context reasonably permits, the singular
shall include the plural, the plural shall include the singular, and the whole
shall include any part thereof. This Agreement is written in the English
language and such English language version shall govern and control over any
translation of this Agreement into any other language.
9.9 WAIVER. Any waiver of, or promise not to enforce, any right under
this Agreement shall not be enforceable unless evidenced by a writing signed by
the Party making said waiver or promise.
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ALTIRIS / PREVIO CONFIDENTIAL
9.10 EXECUTION AND AUTHORITY. This Agreement may be executed in any
number of duplicate counterparts, each of which shall be deemed an original, but
all of which taken together shall constitute one and the same instrument. The
persons signing below represent that they are duly authorized to execute this
Agreement for and on behalf of the Party for whom they are signing.
9.11 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE
TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR
PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR
PREVIO'S LIABILITY UNDER SECTION 6.3 OR FOR BREACH OF SECTION 7.1, 7.2 OR 7.3,
EACH PARTY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT SHALL BE
LIMITED TO THE AMOUNT ACTUALLY PAID TO PREVIO UNDER THIS AGREEMENT OR THE SUM OF
$2,000,000, WHICHEVER IS GREATER.
[SIGNATURE PAGE FOLLOWS]
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ALTIRIS / PREVIO CONFIDENTIAL
THIS AGREEMENT IS HEREBY AGREED TO AND ACCEPTED BY:
_____________________________ ("PREVIO")
By (Signature): /s/ Xxx Diletush
---------------------------------
Name (Print): Xxx Diletush
---------------------------------
Title: CEO
---------------------------------
ALTIRIS, INC. ("ALTIRIS")
By (Signature): /s/ Xxx Xxxxxx
---------------------------------
Name (Print): Xxx Xxxxxx
---------------------------------
Title: VP Business Development
---------------------------------
[SIGNATURE PAGE TO SERVICES AGREEMENT]
SERVICES AGREEMENT - PAGE 14
