EXHIBIT 10.2.10
Agreement Number ______________
STAROFFICE SUPPORT SERVICES AGREEMENT
THIS STAROFFICE AGREEMENT ("Agreement") is entered into between Sun
Microsystems, Inc., with its principal place of business at 000 Xxx Xxxxxxx
Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 ("Sun"), and LinuxCare, Inc., with its
principal place of business at 000 Xxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000 ("Provider"). Sun and Provider are collectively referred to as the
"Parties".
1. SCOPE. This Agreement establishes the terms and conditions under which
Provider will provide support services for StarOffice TM software products,
on a non-exclusive basis, to Sun Customers in Canada, the United States of
America, and Latin America.
2. DEFINITIONS.
2.1 "BUSINESS INFORMATION" means: (i) the Sun business data that may be
provided to Provider on product performance and Sun customer accounts
in connection with the provision of Support Services, and (ii)
information and analysis about a Sun Customer which Provider
collects/compiles in connection with the provision of Support
Services.
2.2 "CUSTOMER INFORMATION" means all information belonging to a Sun
Customer.
2.3 "NOTICE" means written notification, delivered in person or by means
evidenced by a delivery receipt to the other Party, which is deemed
effective upon receipt.
2.4 "SUPPORT SERVICES" means all support, assessment, and other services
for StarOffice software products, as described in detail in the SOW,
to be performed by Provider under this Agreement.
2.5 "SERVICE MATERIALS" means those service-related materials (including
tools, documentation, and manuals) necessary for the delivery of the
Support Services and that will be furnished to Provider by Sun in
accordance with the terms set forth in the SOW.
2.6 "STATEMENT OF WORK" OR "SOW" means the statement of work (as it may be
amended from time to time by Sun) attached to this Agreement as
Exhibit A.
2.7 "SUPPORT CUSTOMER" means a StarOffice products customer for which
Support Services will be provided under this Agreement.
3. PROVIDER OBLIGATIONS.
3.1 SUPPORT SERVICES. This Agreement contains the terms and conditions
which apply to Sun's purchases of Support Services from Provider.
Notwithstanding any terms or conditions contained in any
acknowledgement or other business forms transmitted by Provider,
Provider will perform the work set forth in the SOW in accordance with
the terms and conditions of this Agreement. Support Services will
conform to the scope of work described in the SOW. Provider will
perform Support Services as an independent contractor and in a
professional and workmanlike manner consistent with industry standards
and conforming to applicable product specifications. All Provider
acknowledgements and transmittals must reference and are subject to
this Agreement.
3.2 PERSONNEL. Provider will secure all personnel required to perform
Support Services pursuant to this Agreement. Provider will use
technically qualified service personnel, as defined by Sun from time
to time, and employ adequate safety precautions in performing its
obligations hereunder. At Sun's request, Provider will consent to, and
have its service personnel consent to a background check. In the event
that Support Customers require that Sun or its subcontractors comply
with other conditions prior to the provision of Support Services (e.g.
drug testing), both Sun and Provider will attempt to accommodate the
Support Customer's requirements. The Parties agree that Provider is an
independent contractor and in no event will any personnel hired by
Provider to provide Support Services hereunder be considered an
employee or agent of Sun. Nothing herein will be construed to grant to
Provider any right or authority to create any obligation, express or
implied, on behalf of Sun, or to bind Sun or its Support Customers in
any manner whatsoever.
3.3 DIRECT CONTRACTING. Provider acknowledges that Sun has made a major
investment in establishing customer relationships with the Support
Customers for whom Provider will provide Support
[*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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Services under this Agreement. Provider agrees not to solicit support
services business on StarOffice software and products from such
Support Customers for a period of twelve (12) months from the date of
the last provision of Support Services under this Agreement to such
Support Customer.
3.4 SUN INFORMATION AND MATERIALS. Provider acknowledges and understands
that Business Information and Service Materials (collectively "Sun
Information and Materials") are proprietary and Sun owns all right,
title and interest, including copyrights or other intellectual
property rights, in and to any and all ideas, concepts, expertise,
programs, systems, methodologies, compilations, analyses, data or
other materials embodied in, underlying or reduced to practice in said
Sun Information and Materials. Provider agrees that it shall use Sun
Information and Materials solely for the purposes of performing
Support Services.
3.5 INDEMNITY.
3.7.1 Provider agrees to defend, indemnify and hold harmless Sun, its
affiliates, directors, officers, employees and agents from and
against any and all claims, demands, judgments and awards and
expenses related thereto (including court costs and reasonable
fees of attorneys and other professionals) brought or
threatened by any third parties, including Support Customers,
and arising out of Provider's failure to comply with this
Agreement or arising out of or resulting from Provider's
negligent performance of Support Services or other conduct of
Provider's subcontractors, agents or employees in relation
thereto. Sun will have no authority to settle any claim without
the prior written consent of Provider if Provider will have any
obligation thereunder. Sun expressly reserves the right to
retain separate counsel at Sun's own expense to participate in
the defense or settlement of such claims.
3.7.2 Provider shall defend Sun and/or the Support Customer against
any claim that Support Services furnished hereunder infringe
any U.S. Patent, trade secret or copyright, and will indemnify
Sun and/or the Support Customer against any loss, damage or
liability arising from final award against Sun and/or the
Support Customer, provided that Sun notifies the Provider
promptly in writing of the claim and provides Provider with
reasonable assistance and sole authority to defend or settle
such claims, at Provider's sole expense. Provider shall not be
liable for any claim of infringement arising from Provider's
conformance with specifications provided by Sun and/or the
Support Customer.
3.6 INSURANCE.
3.6.1 Minimum Insurance Required. During the term of this Agreement,
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Provider will obtain and maintain at its own expense, with
financially reputable insurers licensed to do business in all
jurisdictions where Support Services are performed, liability
insurance sufficient to protect Sun from any claims described
in Section 3.5 above, and in any event, no less than the
policies and limits set forth below. Provider will pay the
premiums therefor, and deliver to Sun, upon request, proof of
such insurance. Said insurance coverage may be modified or
terminated only upon thirty (30) days Notice to Sun.
(i) Workers' Compensation as required under any Workers'
Compensation or similar law in the jurisdiction where work is
performed, with an Employer's Liability limit of not less than
One Million Dollars ($1,000,000.00) per occurrence/annual
aggregate;
(ii) Commercial General Liability, including coverage for
contractual liability and products/completed operations
liability, with a limit of not less than Five Million Dollars
($5,000,000.00) combined single limit per occurrence for bodily
injury, personal injury and property damage liability;
(iii) Business Auto insurance covering the ownership,
maintenance or use of any owned, non-owned hired automobile
with a limit of not less than One Million Dollars
($1,000,000.00) per occurrence/annual aggregate for bodily
injury, including death and property damage liability; and
(iv) Professional Liability insurance covering errors and
omissions, with a limit of not less than One Million Dollars
($1,000,000.00) per
occurrence.
3.6.2 CERTIFICATES OF INSURANCE. Provider will provide Sun with a
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Certificate of Insurance showing that the foregoing insurance
policies are in full force and effect upon Sun's request. Any
approval by Sun of any insurance policies will not relieve
Provider of any
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responsibility hereunder, including but not limited to, claims
in excess of limits and coverages described above. Each
liability insurance policy obtained by Provider will name Sun
as an "additional insured" except on Section 3.6.1(i). Each
policy will expressly provide that it will not be subject to
cancellation or material change without at least thirty (30)
days' prior Notice to Sun.
3.6.3 Limitations. Nothing contained in this Section 3.6 limits the
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Parties' liability to the other to the limits of insurance
certified or carried.
3.7 PERFORMANCE. Sun will measure levels of service, quality and Support
Customer satisfaction with the use of surveys and/or audits performed
either by Sun personnel or an independent company engaged by Sun for
such purpose. Provider agrees to provide, in a format acceptable to
Sun, any and all reports and other information requested by Sun.
Provider agrees to cooperate with any surveys and/or audits which Sun
may request.
3.8 QUALITY ASSURANCE. In the event that Support Services are not
delivered in a manner consistent with the provisions of this
Agreement, the SOW, or Sun's quality standards, Sun may request that
the situation be cured. Upon Provider's receipt of such notice,
Provider and Sun will jointly develop and implement within fifteen
(15) days an action plan to remedy the situation. If the situation is
not corrected within a total of thirty (30) days after notification of
the problem, or within a reasonable length of time as dictated by the
agreed upon action plan, Sun may, without incurring any penalty, sever
Provider's provision of further Support Services to specific Customer
accounts.
3.9 FAIR REPRESENTATION. Provider will represent Sun fairly and will make
no representations or guarantees, concerning Sun or the Support
Services, which are false or misleading. Provider will comply with all
applicable laws and regulations in performing under this Agreement.
3.10 ACCESS TO RESOURCE TOOLS AND INFORMATION. Provider understands that
Sun may furnish Provider with resource tools and information,
including but not limited to the non-exclusive right to use Sun's
StarOffice Knowledge Database, Sun's StarOffice Autotext Database, and
other web-based resources associated with StarOffice products for the
duration of this Agreement (collectively referred to as "Tools"), for
the sole purpose of providing Support Services to Support Customers
under this Agreement. Provider will not use the furnished Tools for
any other purpose. Provider understands that all Tools are supplied
"AS IS" and Sun disclaims all warranties (as set forth below in
Section 11). Provider understands that the Tools are proprietary and
Sun owns all right, title and interest, including copyrights or other
intellectual property rights, in and to any and all ideas, concepts,
expertise, programs, systems, methodologies, data or other materials
embodied in, underlying or reduced to practice in said Tools.
4. SUN'S OBLIGATIONS AND RESPONSIBILITIES.
4.1 SUPPORT SERVICES TRAINING. Sun will furnish Provider with at least ten
(10) business days of StarOffice software support training in
accordance with Paragraph 2.1 of the SOW. Sun personnel furnished to
Provider for training also will assist in auditing Provider's ability
to furnish satisfactory Support Services to Support Customers, as
further detailed in Paragraph 4.2 of the SOW.
4.2 SUPPORT FEES. Sun will compensate Provider for the rendering of
Support Services hereunder in accordance with the support fees rates
in Paragraph 3 of the SOW and also with Section 6.1 of this Agreement.
For a limited time and until Provider receives written notice from Sun
otherwise, Provider will not charge Support Customers any fees,
charges, or assessments in connection with Provider rendering Support
Services hereunder.
5. MUTUAL RIGHTS AND OBLIGATIONS.
5.1 EMPLOYEE BENEFITS. Each Party is solely responsible for payment of
wages, salaries, fringe benefits and other compensation of, or claimed
by, its own employees including, without limitations, contributions to
any employee benefit, medical or savings plan, and each Party also is
solely responsible for payment of all payroll taxes including, without
limitation, the withholding and payment of all federal, state, and
local income taxes, FICA, unemployment
taxes, and all other applicable payroll taxes. Each Party is also
solely responsible for compliance with applicable Workers'
Compensation coverages for its own employees. Each Party agrees to
indemnify and defend the other Party from all claims by any person,
government, or agency directly relating to failure to comply with this
section, including without limitation, any penalties and interest
which may be assessed against the other for breach of this provision.
Each Party will also indemnify
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and defend the other from all claims by any person or governmental
agency which arise directly from any failure by that Party to comply
with applicable Workers' Compensation laws with respect to maintenance
of Workers' Compensation coverage for its own employees.
5.2 COMPLIANCE WITH LAWS AND REGULATIONS. The Parties must comply with all
applicable laws, orders, codes and regulations in the performance of
this Agreement.
5.3 PERMITS AND LICENSES. Provider shall acquire and maintain in good
standing, and at its sole expense, all permits, licenses and other
entitlements required of it in the performance of Support Services
under this Agreement.
5.4 DISCRIMINATION. Neither Party will discriminate in any manner against
any individual because of race, color, religion, national origin, age,
sex or handicap. Provider, in performing Support Services under this
Agreement, will comply with all applicable laws, rules and regulations
concerning the prohibition of discrimination in employment.
6. COMMERCIAL TERMS.
6.1 REMUNERATION FOR SERVICE. In consideration for Support Services
provided, Sun will provide remuneration to Provider in accordance with
the applicable support fees rates set forth in Paragraph 3 of the SOW.
Remuneration will be provided within thirty (30) days after receipt of
Provider's invoice and is considered made by Sun on the date of
mailing as evidenced by postmark. Any out-of-pocket expenses (e.g.,
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travel) incurred by Provider in connection with providing Support
Services will be the sole responsibility of Provider, unless otherwise
approved in writing by Sun prior to Provider incurring such expenses.
Sun will only pay for actual expenses incurred by Provider's employees
at fair and reasonable rates which were pre-approved by Sun. Provider
will invoice Sun not more frequently than monthly and as further
detailed in Paragraph 3.3 of the SOW.
6.2 PAYMENT OF EMPLOYEES. Provider will promptly pay its employees for all
work performed. If Provider does not pay its employees on a current
basis for work performed in connection with this Agreement, such
nonpayment will be deemed a material breach of this Agreement and will
entitle Sun, in addition to all other remedies, to withhold all
further payments to Provider.
6.3 TAXES. Provider will be responsible for the payment of any and all
taxes and government assessments due as a result of the performance of
Support Services or the payment thereof. Provider acknowledges and
agrees that it is solely the responsibility of Provider to report as
income all compensation received hereunder and Provider will indemnify
and hold harmless Sun and its Support Customers from and against all
claims, damages, losses, and reasonable expenses of attorneys and
other professionals relating to any obligation to pay any sales,
service, value-added or withholding taxes, social security,
unemployment or disability insurance or similar charges or impounds,
including any interest or penalties thereof, in connection with any
payments made to Provider hereunder.
7. RELATIONSHIP.
7.1 Provider is not granted any exclusive rights of any nature whatsoever
by this Agreement.
7.2 This Agreement is not intended to create a relationship such as a
partnership, franchise, joint venture, agency, master/servant or
employment relationship. Neither Party may act in a manner which
expresses or implies a relationship other than that of an independent
contractor, nor bind the other Party. Provider will not be entitled to
receive any employee benefits provided to Sun employees.
7.3 Absent Sun's prior written consent, Provider will not, during the term
of this Agreement, accept, promote or solicit orders for the provision
of Support Services to any third party Sun service provider and/or to
any provider of any support programs for StarOffice products. The
obligations of Provider set out in this section are fair and
reasonable in the commercial circumstances of this Agreement, and this
Agreement fairly and adequately compensates Provider in
consideration for such obligations.
8. OWNERSHIP, TRADEMARKS, LOGOS AND INVENTIONS.
8.1 "Sun Trademarks" means all names, marks, logos, designs, trade dress
and other brand designations used by Sun and its related companies, in
connection with products and services. Provider may refer to Support
Services by the associated Sun Trademarks only upon Sun's prior
written consent and provided that such reference is not misleading and
complies with the then current Sun Trademark and Logo Policies.
Provider will not remove, alter, or add to any Sun
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Trademarks, nor will it co-logo products and services. Provider is
granted no right, title or license to, or interest in, any Sun
Trademarks. Provider acknowledges Sun's rights in Sun Trademarks and
agrees that any use of Sun Trademarks by Provider will inure to the
sole benefit of Sun. Provider agrees not to (i) challenge Sun'
ownership or use of, (ii) register, or (iii) infringe any Sun
Trademarks, nor will Provider incorporate any Sun Trademarks into
Provider's trademarks, service marks, company names, internet
addresses, domain names, or any other similar designations. If
Provider acquires any rights in any Sun Trademarks by operation of law
or otherwise, it will immediately at no expense to Sun, assign such
rights to Sun along with any associated goodwill, applications, and/or
registrations.
8.2 All right, title and interest in and to all code, modifications,
enhancements, derivative works of or improvements to any Service
Materials, confidential information, or any Sun product, hardware or
software, conceived or reduced to practice by Provider during and in
the course of performing Support Services (collectively, "Works")
shall be assigned to Sun at no cost and/or shall be considered "works
made for hire" under the United States Copyright Act or other
equivalent or similar law, to the fullest extent permitted under
applicable law. If any Work created hereunder shall not be deemed to
constitute a work made for hire, and/or in the event that Provider
should, by operation of law or otherwise, be deemed to retain any
rights in a Work, Provider will assign all right, title and interest
in any such Work to Sun. Provider agrees to cooperate with Sun and to
execute all documents reasonably necessary for Sun to secure
intellectual property protection for such Works, in Sun's name, in all
countries and jurisdictions. Provider agrees, and shall obligate
Provider's employees to agree, that all code or information developed
hereunder shall be kept in confidence by Provider and Provider's
employees and shall be used only in the performance of this Agreement,
and may not be used for other purposes except upon such terms as
agreed to under this Agreement. Sun shall have all right, title and
interest to such code and/or modifications. Sun shall acquire title,
upon its delivery, to all software media and other information,
communication, and copies of the code developed hereunder.
8.3 Provider represents and warrants that it has agreements in place with
its employees or will put the same in place before the effective date
of this Agreement sufficient to enable it to comply in all respects
with its obligations under Section 8.2. Provider will ensure that its
employees and contractors execute such documents as may be necessary
to waive any moral rights which they may have under applicable
Canadian law.
9. CONFIDENTIAL INFORMATION. If either party desires that information provided
to the other party under this Agreement be held in confidence, that party
will, prior to or at the time of disclosure, identify the information in
writing as confidential or proprietary. The recipient may not disclose such
confidential or proprietary information, may use it only for purposes
specifically contemplated in this Agreement, and must treat it with the
same degree of care as it does its own similar information, but with no
less than reasonable care. These obligations do not apply to information
which: a) is or becomes known by recipient without an obligation to
maintain its confidentiality; b) is or becomes generally known to the
public through no act or omission of recipient, or c) is independently
developed by recipient without use of confidential or proprietary
information. This Section will not affect any other confidential disclosure
agreement between the parties. All Customer Information, Support Customers'
identities, Business Information, Service Materials, support manuals,
documentation and software are deemed "Sun Confidential Information", and
Provider will hold Sun Confidential Information in confidence and use Sun
Confidential Information only for purposes specifically contemplated by
this Agreement. It is understood and agreed that in the event of a breach
of this Section 9, damages may not be an adequate remedy and Sun will be
entitled to injunctive relief to restrain any such breach, threatened or
actual.
10. AIRCRAFT SERVICE AND NUCLEAR APPLICATIONS. Provider acknowledges that
Service Materials, training materials, software, products, services and
technical data delivered by Sun are not designed or intended for use in on-
line control of aircraft, air traffic, aircraft navigation or aircraft
communications; or in the design, construction, operation or maintenance of
any nuclear facility. SUN DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF
FITNESS FOR SUCH USES.
11. WARRANTIES; DISCLAIMERS. Provider represents and warrants that (a) all
Support Services will be performed in a professional and workmanlike
manner, consistent with general industry standards; and (b) any hardware,
software, or equipment used by
Provider in the performance of Support Services which is not directly
provided by Sun will not infringe or violate any patent, copyright, trade
secret, contract, or other proprietary or intellectual property rights of
any third party, and that Provider has full and complete authority to make
disclosure of, use, and incorporate into products such hardware, software,
or equipment in performing the Support Services. ALL OTHER EXPRESS OR
IMPLIED
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CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT,
ARE DISCLAIMED BY BOTH PARTIES, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS
ARE HELD TO BE LEGALLY INVALID.
12. LIMITATION OF LIABILITY. SUN'S AGGREGATE LIABILITY TO PROVIDER FOR ANY
HARM, LOSS, DAMAGE, EXPENSE, LIABILITY OR INJURY ARISING OUT OF ANY CLAIM,
ACTION, SUIT, OR PROCEEDING IN CONNECTION WITH, RELATING TO OR ARISING FROM
THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, WILL IN NO
EVENT EXCEED THE LESSER OF (A) THE TOTAL VALUE OF ALL SUPPORT FEES PAID TO
PROVIDER WITHIN THE PRECEDING SIX (6) MONTHS; OR (B) US$150,000. SUN SHALL
NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES IN CONNECTION WITH, RELATING TO OR ARISING FROM THIS
AGREEMENT (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER
ECONOMIC ADVANTAGE), HOWEVER IT ARISES, WHETHER FOR BREACH OR IN TORT, EVEN
IF SUN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. LIABILITY FOR
DAMAGES WILL BE SO LIMITED AND EXCLUDED, EVEN IF ANY REMEDY PROVIDED FOR IN
THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
13. TERM AND TERMINATION.
13.1 TERM. This Agreement commences as of the date indicated in the
signature block below and will continue in full force and effect for
six (6) months, unless sooner terminated as provided herein. This
Agreement expires automatically upon the expiration of a six (6)
months term unless the Parties agree in writing to renew this
Agreement for an additional six (6) months term.
13.2 TERMINATION. Either Sun or Provider may terminate this Agreement,
with or without cause, and for any reason, at any time upon thirty
(30) days prior written notice of termination to the other. Either
Party may terminate this Agreement: (i) immediately, by Notice upon
material, breach by the other Party, if such breach cannot be
remedied; (ii) if the other Party fails to cure any remedial material
breach of this Agreement within thirty (30) days of receipt of Notice
of such breach; and (iii) immediately, by Notice, if the other Party
becomes insolvent, makes a general assignment for the benefit of
creditors, files a voluntary petition of bankruptcy, suffers or
permits the appointment of a receiver for its business or assets,
becomes subject to any proceeding under any bankruptcy law, whether
domestic or foreign, or has wound up or liquidated its business
voluntarily or otherwise. Sun also may terminate this Agreement,
without giving notice to Provider or an opportunity to cure, at any
time within thirty (30) days from the effective date of this Agreement
in accordance with Section 4.1 above and Paragraph 4.2 of the SOW, if
Provider fails to provide Support Services to Sun's satisfaction
within the first thirty (30) days of this Agreement; and in such case,
Sun shall compensate Provider by paying Provider, at the support fees
rate in the SOW which had applied up to the date of termination, for
the remainder of such thirty (30) days period based on the average
daily call rate and hours spent per call as actually handled by
Provider up to the date of termination.
13.3 EFFECT OF TERMINATION. Rights and obligations under this Agreement
which by their nature should survive, will remain in effect after
termination or expiration hereof. Provider agrees that it will have no
right to damages or indemnification of any nature due to any
expiration or termination of this Agreement, specifically including
commercial severance pay whether by way of loss of future profits,
payment for goodwill generated or other commitments made in connection
with the business contemplated by this Agreement or other similar
matters.
Within fifteen (15) days after the effective date of termination,
Provider will return to Sun, at Provider's expense, all Service
Materials, Business Information, Customer Information, training
materials, Tools, any Sun Confidential Information, and all other
items belonging to Sun.
14. IMPORT AND EXPORT LAWS. All software, services, technical data and other
materials delivered under this Agreement are subject to U.S. export control
laws and may be subject to export or import regulations in other countries.
Provider agrees to comply strictly with all such laws and regulations and
acknowledges that it has the responsibility to obtain any required licenses
to export, re-export, transfer, whether directly or indirectly, or import
as may be required after delivery to Provider.
15. MISCELLANEOUS.
15.1 ENTIRE AGREEMENT. This Agreement contains the terms and conditions
which apply to all purchases of Support Services made pursuant to this
Agreement, notwithstanding any terms or
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conditions contained in any acknowledgement or other business forms
transmitted by Provider. It supersedes all prior or contemporaneous
oral or written communications, proposals, conditions,
representations and warranties and prevails over any conflicting or
additional terms of any quote, order, acknowledgement, or other
communication between the Parties relating to its subject matter
during the term of this Agreement. All Provider acknowledgements and
transmittals must reference this Agreement. No modification to this
Agreement will be binding, unless in writing and signed by an
authorized representative of each Party.
15.2 EXHIBITS. The current version of each Exhibit is hereby incorporated
by reference as part of this Agreement. Exhibits may be modified only
upon written consent by both Parties.
15.3 USE OF SUN'S NAME. Provider will not use Sun's name in any form of
publicity or release without Sun's prior written approval.
15.4 ATTORNEYS' FEES. In the event that any dispute arises between the
Parties hereto with regard to any of the provisions of this Agreement
of the performance of any of the terms and conditions hereof, the
prevailing Party in any such dispute will be entitled to recover
costs and expenses associated with resolving such dispute, including
reasonable attorneys' fees.
15.5 WAIVER OR DELAY. Any express waiver or failure to exercise promptly
any right under this Agreement will not create a continuing waiver or
any expectation of non-enforcement.
15.6 GOVERNMENT CONTRACTS. With respect to any Support Services performed
in connection with a government contract or subcontract, Provider
agrees to be bound by all those provisions of such contract or
subcontract which Sun is required to pass on to its subcontractors,
and such provisions are hereby incorporated by reference.
15.7 CHANGE OF CONTROL. In the event of the direct or indirect taking over
or assumption of control of Provider or of substantially all of its
assets by any government, governmental agency or other third party,
Sun may terminate this Agreement immediately upon written notice to
Provider.
15.8 ASSIGNMENT. Neither Party may assign or otherwise transfer any of its
rights or obligations under this Agreement, either in whole or in
part, without the prior written consent of the other Party, except
that Sun may assign this or any Agreement to an affiliated company,
or any of these. Any assignment or delegation by Provider without
such consent will be null and void, and will give Sun the right
immediately to terminate this Agreement without liability for Support
Services performed after such termination. The rights and liabilities
of the Parties hereto will be binding upon and inure to the Parties'
permitted successors and assigns.
15.9 NOTICES. All Notices must be in writing and delivered either in
person or by a means evidenced by delivery receipt to the address
specified below. Such Notice will be effective upon receipt.
Sun: Provider:
Sun Microsystems, Inc. LinuxCare, Inc.
000 Xxx Xxxxxxx Xxxx 000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000 Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Enterprise Services Director of Attn: XXX XXXXXXXX
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Strategic Partners and Alliances VP WORLDWIDE SALES
cc: General Counsel, Enterprise Services Legal
000 Xxxxxxxx Xxxxxxxxx, XX BRM01-200
Xxxxxxxxxx, Xxxxxxxx 00000
15.10 SEVERABILITY. If any provision, or part thereof, in an Agreement, is
held to be invalid, void, or illegal, it shall be severed from the
Agreement, and shall not affect, impair, or invalidate any other
provision, or part thereof, and it shall be replaced by a provision
which comes closest to such severed provision, or part thereof, in
language and intent, without being invalid, void, or illegal.
15.11 MEANING OF CERTAIN WORDS. The term "includes" and "including" will
not be construed to imply any limitation. Unless otherwise stated,
any reference contained in this Agreement to a Section refers to the
provision of this Agreement. Wherever the context may require, any
pronouns used in this Agreement will include the corresponding
masculine, feminine, or neuter forms, and the singular form of nouns
or pronouns, including all defined terms, will include the plural and
visa versa.
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15.12 HEADINGS; ORDER OF PRECEDENCE. Section titles and captions contained
in this Agreement are for reference only and in no way define, limit,
extend or describe the scope of this Agreement or the intent of any
of its provisions. If any inconsistencies or conflicts arise between
the provisions of this Agreement and the SOW, the following order of
precedence shall apply in order of priority: (1) the Agreement, and
(2) the SOW.
15.13 GOVERNING LAW. This Agreement and any dispute or action related
hereto will be governed by, and construed in accordance with, the
laws of California and controlling U.S. federal law, excluding choice
of law rules of any jurisdiction and the United Nations Convention
for the International Sale of Goods.
15.14 COUNTERPARTS. This Agreement may be executed in counterparts.
THIS AGREEMENT IS EFFECTIVE AS OF 9/24/99. THE PARTIES HAVE READ THIS AGREEMENT
AND AGREE TO BE BOUND THEREBY.
SUN MICROSYSTEMS, INC. PROVIDER LINUXCARE, INC.
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------- -----------------------------
Print: Xxxxxxx Xxxx Print: Xxxxxx X. Xxxxxxxx
------------ ------------------
Title: Director of Strategic Alliance Title: V.P. World Wide Sale
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EXHIBIT A
STATEMENT OF WORK
(attached hereto)
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EXHIBIT A - STATEMENT OF WORK FOR STAR OFFICE SUPPORT SERVICES
This Statement of Work for StarOffice Support Services is Exhibit A to the
StarOffice Support Services Agreement ("Agreement") between Sun
Microsystems Inc, ("Sun") and LinuxCare, Inc, ("PROVIDER"). This Exhibit A
is incorporated by reference as part of the Agreement.
1. SERVICES TO BE PROVIDED BY PROVIDER.
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1.1 DEFINITIONS.
1.1.1 "Business Hours" means 8:00 a.m. to 8:00 p.m. Eastern
Standard Time, Monday through Friday, excluding Sun
holidays.
1.1.2 "Call Back" means calls which, at the Support Customer's
request are handled by means of a returned telephone call
to the contact of record (as shown on the service order),
by a PROVIDER support engineer.
1.1.3 "Support Customer" or "End User" means a customer who
directly or indirectly received distribution of StarOffice
products from Sun or from StarDivision prior to its
acquisition by Sun.
1.1.4 "Live Transfer" means calls which, at the Support
Customer's request, are directly connected to a PROVIDER
support engineer.
1.1.5 "Support Services" means remote, centralized, software
support services of StarOffice software products to be
provided by PROVIDER. This definition excludes on-site
support services of any kind.
1.1.6 "Call" or "Calls" means Support Customer's request for
service regardless of method of transmission.
1.1.7 "Enterprise Services" means the Enterprise Services
Division of Sun.
1.1.8 "Service Order" means the documentation of a Support
Services Call.
1.2 SUPPORT SERVICES.
1.2.1 Services. PROVIDER will provide Support Services for
Support Customers during Business Hours only. Such Support
Services shall be limited to the StarOffice software
products and their compatibility with any of the platforms
(hardware/operating system) and peripheral devices (e.g.
printers) with which they interoperate. Support Services
shall be provided in accordance with the procedures
outlined in Section 1.4 of this Exhibit A.
1.2.2 Assignment of Engineers. PROVIDER will assign engineers to
provide Support Services under this Exhibit who, at the
time of the assignment, are trained in providing support
to StarOffice products.
1.3 TELECOM COSTS. PROVIDER will be responsible for all outbound
telecommunications costs related to the provision of Support
Services it provides.
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1.4 PROCEDURES FOR SUPPORT SERVICE CALLS.
1.4.1 Receipt of Support Customer Calls. Support Customer Calls
will be received via phone, email, and fax. Enterprise
Services will establish automatic routing of Support
Customer phone calls, emails and faxes to PROVIDER
designated communication equipment. PROVIDER will identify
DNIS numbers, email addresses and phone numbers required
to allow proper Support Customer Call routing. PROVIDER
employees dealing with Support Customers shall identify
themselves as "Sun Customer Care Center" employees and
answer frontline calls accordingly. At no time shall
PROVIDER nor any of its employees or representatives
expose PROVIDER's identity to Support Customers.
1.4.2 Response. PROVIDER will respond to Calls by reviewing the
request and providing an initial response via email to
Support Customers within 24 hours of receipt of Call. It
is understood that Support Customers corresponding via
email through the Sun web site may submit requests in
foreign languages. PROVIDER will use best efforts to
respond in Support Customers' native language. It is also
understood that some Support Customers may require
assistance over the phone for more complex issues.
PROVIDER will use its judgment to determine if phone
assistance is required. It is the intent of Enterprise
Services to change the expectations of Support Customers
to use electronic means for submitting requests and
receiving responses. Email responses to Support Customers
shall indicate a Sun-furnished mail address/alias. At no
time shall PROVIDER nor any of its employees or
representatives expose PROVIDER's identity to Support
Customers.
1.4.3 Data Entry. PROVIDER shall record all relevant data
(reference SOW paragraph 1.5) concerning the Support
Customer within PROVIDER's call management system.
PROVIDER shall furnish this information to Enterprise
Services on a weekly basis. Additionally, PROVIDER shall
allow Enterprise Services electronic access to Support
Customer Service Orders within PROVIDER's call management
system in order to assist with troubleshooting and to
monitor Support Service activity.
1.4.4 Closure. PROVIDER acknowledges and agrees that Support
Customer determines when a Service Order is completed or
"closed".
1.4.5 Escalation. If PROVIDER is unable to close a Service Order
within twenty-four (24) hours, PROVIDER will escalate Call
immediately during Business Hours to Enterprise Services
by contacting the designated Enterprise Services point of
contact.
1.5 DATA COLLECTION AND REPORTING. PROVIDER will collect and report
the following data on a weekly basis. Information shall be
furnished electronically in StarOffice Spreadsheet compatible
format. For each call taken, PROVIDER shall furnish:
a. Support Customer information (Support Customer Name,
Address, City, State, Country)
b. type of End User (Enterprise, Educational, Personal)
c. Call complexity (Type of Problem, Resolution Time)
d. Support Customer platforms (Hardware and Operating System)
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e. escalated back to Enterprise Services (Y/N)
f. method of Support Customer contact (phone, email, fax)
g. method of response to Support Customer (phone, email, fax)
h. summary reporting should include:
1) total number of Calls
2) # of Calls by Support Customer location (State, Country)
3) # of Calls by type of End User
4) # of Calls by platform
5) # of Calls escalated back to Enterprise Services
6) # of Calls by type of problem (e.g. registration,
printer drivers, etc.)
7) average resolution time
Additionally, PROVIDER will furnish updates to Enterprise Services for
the StarOffice Knowledge Database or StarOffice Autotext Database as
new information is discovered.
2. ENTERPRISE SERVICES OBLIGATIONS.
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2.1 TRAINING. Enterprise Services will provide an on-site trainer,
who will be available to PROVIDER for a minimum of ten (10) business
days, to train PROVIDER personnel with respect to Support Services.
2.2 TOOLS AND DATABASE ACCESS. Enterprise Services will allow
PROVIDER access to Enterprise Services' StarOffice Knowledge Database
and the StarOffice Autotext Database solely for the purpose of
providing Support Services. PROVIDER agrees and acknowledges that the
information contained in the Knowledge and Autotext databases are
hereby identified, without the need for further identification, as
proprietary and subject to the provisions of Section 3.10 of the
Agreement, Access to Resource Tools and Information.
2.3 TELECOM COSTS. Enterprise Services will be responsible for
inbound telecommunications costs to PROVIDER which are incurred
through the provision of Support Services EXCEPT that Enterprise
Services will not reimburse collect calls that are placed to PROVIDER
by Support Customers.
2.4 ESCALATION POINT OF CONTACT. Enterprise Services will make known
to PROVIDER the contact information for the engineer(s) that will be
responsible for accepting Call escalations. Enterprise Services will
provide Call closure information on all escalated Calls so that
PROVIDER reports may be complete. It is the responsibility of the
PROVIDER to request Call closure information from Enterprise Services
on Calls that are escalated back to Enterprise Services. If
information is not available, PROVIDER shall indicate so within its
report.
3. METHOD AND CONDITIONS OF COMPENSATION.
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3.1 Compensation. Enterprise Services will pay PROVIDER [*] per hour
worked by PROVIDER personnel in the Call acceptance and resolution of
support requests by Support Customers. A minimum of [*] and a maximum of
[*] will be paid for any one Call. After thirty (30) days, rates will be
reviewed to ensure adequacy of pricing. If required, a mutually acceptable
adjustment in pricing shall be made.
3.2 DETERMINATION OF FEES. PROVIDER shall provide a summary timesheet of
all employees' hours worked in support of Support Services. This timesheet
should identify each Service Order worked on, the actual number of hours
worked for each Call, and the billable hours for each Call.
3.3 INVOICING OF FEES. PROVIDER's invoices will be paid in accordance with
the payment terms set forth in Section 6.1 of the Agreement. Invoices shall
contain a summary of charges together with the Sun-assigned accounting
purchase order number clearly identified and a summary timesheet as
identified in SOW paragraph 3.2. Additionally, PROVIDER's invoices should
be submitted monthly by the second Tuesday of the month following delivery
of Support Services.
4. PERFORMANCE STANDARDS.
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4.1 WARRANTY OF PROVIDER. PROVIDER warrants that the Support Services
shall be performed in a professional, good and workmanlike manner
consistent with the general industry standards.
4.2 MINIMUM STANDARDS. For thirty (30) days from the effective date of the
Agreement, PROVIDER will be furnishing Support Services on a probation or
trial basis. At any time during such period, Enterprise Services may
terminate this Agreement due to: (i) a failure of PROVIDER to meet mutually
developed performance metrics; or (ii) a significant reduction in the
volume of Support Services Calls; or (iii) Enterprise Services' conclusion
of a long term plan for supporting Calls. At the end of each month
following this trial period, Enterprise Services will evaluate PROVIDER's
performance under this Exhibit, including, but not limited to, the
PROVIDER's ability to resolve calls in an accurate and timely fashion.
Enterprise Services reserves the right to contact its Support Customers to
verify the accuracy of PROVIDER's service call information and to conduct
audits of service delivery to Support Customers.
4.3 NO WARRANTIES. PROVIDER makes no warranties regarding materials or
supplies provided by Enterprise Services.
5. OPERATIONAL CONTACTS. Both parties agree to designate one (1) employee and
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one (1) backup employee who will be the principal contacts for all day-to-day
operational activities relating the provision of Support Services hereunder.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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As evidenced by the authorized signatures below, Sun and PROVIDER agree that
this Exhibit A shall be attached to and incorporated as a part of the Agreement.
THE PARTIES HAVE READ AND AGREE TO BE BOUND HEREBY.
EFFECTIVE AS OF 9 / 24 / 99
- -- --
AGREED:
SUN MICROSYSTEMS, INC. PROVIDER:
LINUXCARE, INC.
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxx X. Xxxxxxxx
Print: Xxxxxxx Xxxx Print: Xxxxxx X. Xxxxxxxx
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Title: Director of Strategic Alliance Title: V.P. World Wide Sales
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