* EXHIBIT 10.5
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Agreement dated November 9, 1995, between Borland International, Inc.
and Computer Generated Solutions, Inc.
* Confidential Treatment is being requested with respect to portions of
this exhibit
[LETTERHEAD OF COMPUTER GENERATED SOLUTIONS, INC.]
AGREEMENT
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This Agreement is between Borland International, Inc., 000 Xxxxxxx Xxx,
Xxxxxx Xxxxxx, XX 00000 ("Borland"), and Computer Generated Solutions, Inc.,
0000 Xxxxxxxx, Xxx Xxxx, XX 00000 ("CGS").
1. PURPOSE.
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This Agreement is intended to establish a relationship between Borland
and CGS in order for CGS, as an independent contractor, to provide to Borland
services relating to delivering technical support to Borland's customers.
2. CGS SERVICES.
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x. Xxxxxxx hereby appoints CGS as an independent contractor to service
Borland's present and future business needs as described in paragraph 1 of this
Agreement. Borland retains CGS to provide only those services which are agreed
to by the parties in a separate written Attachment to this Agreement which is
signed by both parties.
x. Xxxxxxx also hereby grants to CGS a limited nonexclusive license to
use Borland's trademarks and trade names solely to the extent reasonably
necessary for the performance of
such services, and in accordance with guidelines for the protection of such
marks and names as may be provided by Borland to CGS from time to time.
3. CGS OBLIGATIONS.
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a. CGS agrees to provide Borland with those services described in any
Attachment to this Agreement.
b. Following the execution of this Agreement, and from time to time
within thirty (30) days of Borland's written request, CGS agrees to provide
Borland with a business plan with respect to future services of CGS related to
this Agreement.
4. PAYMENT.
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x. Xxxxxxx will pay CGS the applicable fees as set forth on any
Attachment to this Agreement.
b. All payments described in any Attachment are due within thirty (30)
days after the receipt of CGS's invoice, and any documentation requested by
Borland sufficient to substantiate such invoice.
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5. BORLAND OBLIGATIONS.
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x. Xxxxxxx aqrees to perform such functions as described in any
Attachment to this Agreement.
x. Xxxxxxx will supply to CGS such documentation for as CGS reasonably
needs in order to perform the services agreed to.
c. As deemed necessary by Borland, Borland will provide training to CGS
employees engaged in performance of the services under this Agreement.
6. BORLAND'S SERVICE NEEDS.
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Provided Borland has paid all applicable fees as set forth in all
Attachments, Borland will be entitled to receive the support and other services
described in the Attachments.
7. PROPRIETARY RIGHTS.
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Borland or its licensors have and will keep title, copyright, trademarks
and all other proprietary rights in its products. CGS has no right to use,
examine, re-create, sublicense, or transfer the source code for Borland's
products, which is Borland's trade secret. CGS agrees not to attempt to reverse
engineer, decompile, disassemble, or otherwise attempt to derive
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the source code from Borland's products or to knowingly allow others to do so
during or after the term of the Agreement. Unless agreed to in writing by
Borland, CGS agrees not to remove or destroy any proprietary or confidential
legends or markings placed upon or contained in Borland's products, or otherwise
to modify or alter the products.
8. LIMITATION OF LIABILITY.
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In any event, neither Borland nor CGS will be liable to the other or
any third party for incidental, special or consequential damages for any reason
(including loss of data or other business or property damage), even if
foreseeable, and neither party's liability will exceed the applicable fees paid
or payable to CGS by Borland.
9. TERM.
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a. The term of this Agreement shall be one year and it shall be
effective on the date set forth below. The Agreement shall automatically renew
for not more than two consecutive one year terms unless thirty (30) days'
advance notice is provided by either party. Either party may terminate this
Agreement on thirty (30) days' notice if the other party breaches any material
term of this Agreement and fails to remedy such breach within such thirty (30)
day notice period. Either party may terminate this Agreement in the event the
other party becomes involved in any voluntary or
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involuntary bankruptcy or other insolvency proceedings, ceases to be actively
engaged in business, makes an assignment for the benefit of its creditors, or
becomes financially incapable of fulfilling its obligations under this
Agreement. After the initial one year term, either party may terminate this
Agreement on thirty (30) days' notice.
b. Upon termination, CGS shall destroy or return all originals and
copies of Borland's products, including documentation and related materials, and
all other reproductions and parts thereof.
10. CONFIDENTIALITY.
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"Confidential Information" means non-public business, product,
financial and technical information which is disclosed in writing and marked as
confidential or disclosed in any other manner and later identified in writing as
confidential, or disclosed in any other manner and later identified in writing
as confidential. Neither party will use or disclose the Confidential Information
of the other except as specifically authorized by the other in writing. Each
party will protect the Confidential Information of the other by using the same
degree of care, but not less than a reasonable degree of care, to prevent the
unauthorized use, dissemination or publication of the confidential information
as such party uses to protect its own confidential information of a like
nature.
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11. GENERAL.
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a. This is the full and final agreement between Borland and CGS on this
subject and supersedes any earlier promises, representations or agreements.
b. This Agreement may only be changed if Borland's and CGS's authorized
representatives do so in writing.
c. No inconsistent, additional, or preprinted terms on Borland's
purchase order or other business form will apply.
x. Xxxxxxx and CGS are independent contractors and neither is an agent,
partner, franchisee, joint venturer or employee of the other.
e. Waivers not given in writing may be revoked at any time without
liability.
f. Invalid provisions of this Agreement do not affect the
enforceability of others.
x. Xxxxxxx is entitled to seek injunctive relief for violations of
Borland's copyrights, trade secrets or other proprietary rights.
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h. All notices under this agreement shall be in writing and shall be
sent by telecopy, courier, or certified mail return receipt requested, to the
attention of the appropriate party, at the address as set forth on the first
page of this Agreement and shall be deemed effective upon receipt.
i. This Agreement will be construed and governed by the substantive
laws of the State of California.
This agreement shall be effective on November 9, 1995.
BORLAND INTERNATIONAL, INC.
Signed: /s/ Xxxx Xxxxx
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Name: XXXX XXXXX
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Title: Director, Technical Support
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COMPUTER GENERATED SOLUTIONS, INC.
Reviewed
By Signed: /s/ Xxxxxx Xxxxxxxx
Legal -----------------------------
Dept. Name: XXXXXX XXXXXXXX
/s/ -------------------------------
Title: Executive Vice-President
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Attachment A to Agreement between
Borland International, Inc. ("Borland")
and Computer Generated Solutions, Inc. ("CGS")
Effective November 9, 1995
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End-User ("Help Desk") Support Services
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1. HELP DESK SERVICES.
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a. CGS will provide Borland's customers ("Customers") with
technical support for Borland's software products. These services will be
provided by CGS employees from Borland's offices located in Scotts Valley,
California, during Monday through Friday, for a minimum of forty (40) hours per
week between the hours of 6:00 a.m. to 5:00 p.m., Pacific Time.
b. CGS will initially employ and provide to Borland up to six (6)
qualified help desk support analysts whose responsibilities include the day to
day technical support of Customers, including answering questions and providing
solutions to problems for Borland software products.
c. To ensure CGS's effective delivery of help desk services,
Borland will:
(1) Assign a designated contact person, prior to the start of the
services, to whom all CGS communications may be addressed and who has the
authority to act on Borland's behalf for
all aspects of the services CGS is performing. The designated contact will:
(a) Assist in establishing a transition project plan for the
implementation of the services;
(b) Arrange training for CGS employees, if needed; and
(c) Provide assistance as needed to the help desk personnel
for those instances that require management intervention
and action.
(2) Provide to CGS operational guidelines for the successful
implementation of the help desk services.
(3) Provide to CGS product information and data that may be
required for the successful implementation of the help desk services.
x. Xxxxxxx may during the term of the Agreement request CGS to
provide additional employees for the help desk services, which CGS will on a
best efforts basis attempt to provide.
2. Fees.
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x. Xxxxxxx will pay CGS at the rate of **** per hour for each
hour of service provided by a CGS employee.
**** Confidential treatment is being requested for these portions of this
agreement.
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b. During the first five (5) weeks following the start of CGS's
employees assignment at Borland, CGS will discount by **** its fees for those
employees which require technical training by Borland.
3. Non-Hiring of CGS Employees.
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x. Xxxxxxx agrees that it cannot hire a CGS employee, unless and
until that employee has completed at least twelve (12) consecutive months of
help desk services and Borland has given CGS thirty (30) days' advance notice of
its intention to solicit for employment that CGS employee. Thereafter, Borland
may hire such CGS employee provided that Borland pays to CGS a fee of 15% of the
employee's annual compensation to be paid by Borland if the employee is hired by
Borland after the completion of twelve (12) months but before the completion of
eighteen (18) months of help desk services, or 10% of the employee's annual
compensation to be paid by Borland if the employee is hired by Borland after the
completion of eighteen (18) months of help desk services. These fees are to be
paid by Borland within thirty (30) days after the employee is hired by Borland.
b. Notwithstanding paragraph 3.a. above, but provided that
Borland has timely remitted payment of the applicable percentage fee described
in paragraph 3.a., if Borland offers CGS the opportunity to replace the hired
employee with a new CGS
**** Confidential treatment is being requested for these portions of this
agreement.
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employee within sixty (60) days after Borland's hiring and CGS replaces the
hired employee, then Borland shall pay to CGS a flat fee of $2,500.00. If
Borland has already paid the percentage fee described in paragraph 3.a. above,
Borland shall receive a credit against that employee's future billable time,
less the $2,500.00 flat fee.
c. Notwithstanding paragraphs 3.a. and 3.b. above, Borland
cannot, at any time, hire more than 50% of the number of CGS employees who have
been assigned to Borland for help desk services.
d. Upon thirty (30) days' notice, Borland or CGS may terminate
the services of any CGS employee at any time during this Agreement.
e. Notwithstanding paragraph 3.d. above, CGS agrees that it will
not reassign its employees to other projects without Borland's written consent,
and Borland agrees that it will not unreasonably withhold such consent.
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This Attachment shall be effective on November 9, 1995.
BORLAND INTERNATIONAL, INC.
Reviewed Signed: /s/ Xxxx Xxxxx
By -----------------------------
Legal Name: XXXX XXXXX
Dept. -------------------------------
/s/ Title: Director, Technical Support
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COMPUTER GENERATED SOLUTIONS, INC>
Signed: /s/ Xxxxxx Xxxxxxxx
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Name: XXXXXX XXXXXXXX
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Title: Executive Vice-President
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