CONSULTING ALLIANCE AGREEMENT
-----------------------------
THE UNDERSIGNED PARTIES:
------------------------
1. Intelligroup, Inc. with a place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇, ▇▇▇▇▇, ▇▇▇, hereinafter referred to as "Company,"
and
2. Baan International B.V., with a place of business at Baron van ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, hereinafter referred
to as "Baan."
HEREBY AGREE FOLLOWS:
---------------------
1. Execution and duration
----------------------
1.1 Company and Baan agree to enter into and to execute this Consulting
Alliance Agreement, hereinafter referred to as this "Agreement."
1.2 This Agreement is in effect as of the latter of the dates it is signed by
both parties and shall remain in force for a period of one ( 1) year,
unless terminated pursuant to Section 8 of the General Terms and
Conditions attached hereto as Schedule A and, after the expiration of the
initial term, will be automatically renewed for subsequent periods of one
year. Neither party shall be under any obligation to extend or renew the
duration of the Agreement upon expiration of the initial term, or the
renewal term, and each party may elect or refrain from any extension or
renewal for any reason whatsoever. In addition, either party may terminate
this Agreement without cause, provided it supplies the other party with
ninety (90) days' prior written notice of such termination.
1.3 Company shall operate as an International Consulting Alliance Program
Member ("Member") to Baan pursuant to this Agreement.
2. Baan Consulting Alliance Program Requirements
---------------------------------------------
By entering into this Agreement, Company is participating in the Baan
Consulting Alliance Program. In order to protect the standards of quality
for services provided under Baan's trademarks and in order for Baan to
monitor the quality of services provided under Baan's trademarks, Company
hereby agrees to fulfill the Baan Consulting Alliance Program (the
"Program") requirements set forth below.
2.1 Advanced Trained Consultants
----------------------------
Within twenty-four (24) months of signing this Agreement, Company shall
have at least that number of consultants dedicated to Baan as is
reasonably necessary to meet its obligations hereunder. All such
consultants shall have been Basic Trained and Advanced Trained in at least
one Baan Software package. If Company is unable to satisfy this
requirement within the specified time period, Company shall notify Baan in
writing of the inability to comply and the reasons thereof. Baan may, in
its sole discretion, allow Company to retain Membership in the Program
hereof despite this inability to comply. Consultants shall update their
training by passing a "differences course" within 6 months of the general
release of each major version of the Baan Software. If training is not
available in a certain region or area, Company must obtain a waiver from
Baan postponing this requirement until training does become available.
Company shall also provide Baan practice-level skills profile information
to Baan. Company shall update this information at least quarterly.
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2.3 Non-solicitation
----------------
During the term of this Agreement and for one (1) year after its
expiration or termination, neither party shall without the prior written
consent of the other party, solicit for employment as an employee,
independent contractor, or consultant, any employee, independent
contractor or consultant of the other party or (in the case of Baan) of
Baan Company N.V., or a Baan Company N.V. subsidiary who performs or
participates in the delivery of Consulting Services or other related
services. In addition, neither party shall procure any third party to do
any of the aforementioned acts.
2.4 Vertical Market Focus
---------------------
Company shall build industry expertise in the requisite number of Baan's
vertical industry markets as set forth in the definition of International
Member on Schedule A and shall be able to provide added value to customers
in those markets. Baan's vertical industry markets currently include,
without limitation, Automotive, Hi-Tech Electronics, Project Industries,
Aerospace & Defense and Process.
2.5 Orgware and Baan Methodology Compliance
---------------------------------------
In order to protect the value of Baan's trademarks, during an
implementation, Company shall use Baan's Orgware tools and Baan
Methodology or Company's proprietary methodology that has been previously
approved by Baan. In order for Company's proprietary methodology to be
approved by Baan, the following deliverables must be satisfied:
1) Methodology mapped to the Baan Methodology.
2) Consulting services presentation jointly developed.
3) Format of Project proposal - approved by Baan.
4) Format of Project budget - approved by Baan.
2.6 Quality
-------
Company shall deliver the Consulting Services in a professional and
workmanlike manner.
3. Baan Consulting Alliance Program Member Privileges
--------------------------------------------------
3.1 As a Member of the Consulting Alliance Program, Company is entitled to,
among other privileges, the following privileges for as long as Company
maintains its status as a Member:
3.2 Use of Baan Authorized Consulting Alliance Member Logo
-------------------------------------------------------------
Company is authorized to use the Baan Authorized Consulting Alliance
Member logo on business cards, letterhead, marketing materials,
advertisements, in sales presentations, and to link to Baan's web site
(▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇) on the World Wide Web; provided, however, that
Company shall not use such logo or any other ▇▇▇▇ as part of its company
or business name.
3.3 Internal Copies
---------------
Upon paying the appropriate annual support fee to Baan for Maintenance and
Support under Schedule B of this Agreement, Company will receive a
non-exclusive, non-transferable license to use the Internal Copies for the
sole purpose of enabling Company to become more familiar with the Software
and provide Consulting Services, it being understood that Company has no
rights to:
(i) sell, lease, license, or sublicense the Software;
(ii) decompile, disassemble, or reverse engineer the Software, in whole
or in part; or
(iii) write or develop any derivative software or any other software
program based upon the Software or any confidential information of
Baan.
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3.4 Maintenance and Support.
------------------------
Upon payment by Company of the appropriate annual fee, Baan will provide
Maintenance and Support to Company with respect to the Internal Copies
according to the terms of Schedule B hereof.
3.5 Access to Baan E-Mail and Databases
-----------------------------------
Company shall receive access to Baan's e-mail and supporting alliance
databases for the purpose of assisting Company professionals.
3.6 Discount on Baan Education Courses
----------------------------------
Company shall receive a standard discount of 20% off Baan's standard
charges on all courses offered at Baan's education centers.
3.7 Baan Institute
--------------
Company shall be invited to enroll consultants in courses at the Baan
Institute, subject to space availability and payment of the requisite fee.
3.8 Trainer Accreditation
---------------------
Company shall be invited to participate in Baan's accreditation program
for trainers, subject to space availability and payment of the requisite
fee. The accreditation program provides instructors with knowledge and
skills to transfer Baan product knowledge and teaches trainers to provide
Standard and Configured Training, to protect the value of Baan's
trademarks.
3.9 Sales and Marketing Events
--------------------------
Company shall receive invitations to attend Baan's major global and
regional sales and marketing events, both as a participant and, where
applicable, as a speaker. Such sales and marketing events may include,
Baan world users conferences, sales kickoff meetings, vertical industry
executive summits, product announcements, and press and analysts tours.
Baan will also accept invitations to and, at Baan's reasonable discretion,
attend and support Company's own sales and marketing events.
3.10 Joint Marketing Programs
------------------------
Company shall be offered the opportunity to arrange joint marketing
programs, events, and press releases with Baan's marketing department.
3.11 Company Name Listed on Baan Web Site
------------------------------------
Company shall have the option to list their company name on Baan's web
site (▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇/) on the World Wide Web. Company shall also have
the option to link from the Baan web site to Company's web site, and vice
versa.
3.12 Company Name Listed in the Baan Consulting Alliance Program Members Guide
------------------------------------------ ------------------------------
Company shall have the option to be listed in the Baan Consulting Alliance
Program Members Guide, which is a listing of Baan's Consulting Alliance
Program Members. The Consulting Alliance Program Members Guide is
distributed in print format and on Baan's web site.
3.13 Fee
---
To the extent a fee is not already referenced herein, Baan hereby reserves
the right to, at Baan's sole discretion, charge a fee for any of the
privileges set forth in Sections 3.1 through 3.12 above by giving Company
ninety (90) days' prior written notice. Baan may only change its fee
policy twice during any twelve-month period and only as long as Baan
imposes such fee equally on all of its Consulting Alliance Program
Members. Company shall have the right to decline receiving any of the
privileges listed above and thereby eliminate the obligation to pay any
such fee applicable to such declined privileges.
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4. Company-Sole Control.
---------------------
Company shall have sole and exclusive control over all aspects of the
business not expressly covered under this Agreement, including, without
limitations, (i) sales policies, (ii) credit practices, (iii) hiring and
supervision of personnel, (iv) marketing, advertising, and promotion, (v)
contracting, (vi) billing and collection; and (vii) pricing.
5. No Limitation.
--------------
Nothing in this Agreement shall be construed to restrict Company from
conducting any other business, including, without limitation, consulting
services relating to any third party's computer software products.
6. Price
-----
Except as set forth in Section 5.2 of Schedule A, Company shall
unilaterally determine the price for Consulting Services offered by
Company hereunder. No employee or representative of Baan or anyone else
shall have any authority whatsoever to set Company's price of such
Consulting Services or to inhibit in any way Company's pricing discretion
with respect to such Consulting Services.
7. Notices
-------
Any notice required or permitted under the terms of this Agreement or
required by law shall (unless otherwise provided) be in writing and shall
be delivered in person, sent by registered mail, by express mail with
package tracking capability or air mail as appropriate, properly posted
and fully prepaid in an envelope properly addressed, or shall be sent by
fax to the respective parties as follows:
(i) Baan - Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇
Attn: Legal Counsel
- Phone number: ▇.▇▇▇.▇▇▇.▇▇▇▇
- Fax number: ▇.▇▇▇.▇▇▇.▇▇▇▇
(ii) Company - Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, ▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇,
VP Marketing & Business Development
with a copy to: Intelligroup, Inc., Legal Department
(same address, phone, and fax)
- Phone number: ▇.▇▇▇.▇▇▇.▇▇▇▇
- Fax number: ▇.▇▇▇.▇▇▇.▇▇▇▇
or to such other address or fax number as either party may be notified of
by the other party. Any such notice shall be in the English language,
unless otherwise specified in this Agreement, and shall be considered to
have been given at the time of actual delivery in person or, if sent by
fax, at the time mentioned on the transmission result report, or in any
other event within fourteen days after it was mailed in the manner
specified above.
8. Entire Agreement
----------------
This Agreement (including the Schedules and any addenda hereto signed by
both parties) contains the entire agreement of the parties with respect to
the subject matter of this Agreement and supersedes all previous
communications, representations, understandings and agreements, either
oral or written, between the parties with respect to said subject matter.
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DRAWN UP IN DUPLICATE AND SIGNED:
in [Reston, VA, USA] in [Iselin, NJ, USA]
on [26 SEPT], 1997 on [29 SEPT], 1997
Baan: Company:
BAAN INTERNATIONAL B.V. INTELLIGROUP, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------ --------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, BAAN Title: Vice President, Marketing & Business
Consulting Development
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SCHEDULE A
GENERAL TERMS AND CONDITIONS
1. Definitions
-----------
1.1 "Advanced Trained" means having successfully passed both the Baan basic
training exam and the Baan advanced training exam for one package of the
Software.
1.2 "Baan Consulting Alliance Program" means Baan's program for establishing
Alliance relationships with entities that provide Consulting Services and
for describing the nature of the relationships.
1.3 "Basic Trained" means having successfully passed the Baan basic training
exam.
1.4 "Configured Training" means a Baan education course that is taught by a
Baan accredited trainer using a subset of the standard Baan curriculum and
a subset of the standard Baan materials. All configured training courses
are scheduled through the Baan education center in the region where the
course is taught.
1.5 "Consultant" means an employee of Company who is providing Consulting
Services.
1.6 "Consulting Services" means the activities of Company by means of which it
supports Customers with the use of the Software.
1.7 "Customer" means an individual end-user of the Software, who has licensed
the Software either directly from Baan, from a Distributor of Baan, or
from both.
1.8 "DEM Consulting" means implementation consulting relating to Dynamic
Enterprise Modeling and the Line of Business Reference Models.
1.9 "Distributor" means a company authorized by Baan to market and license
Software to Customers.
1.10 "Documentation" means any on-line system help files or written instruction
manuals regarding the use of the Software.
1.11 "General Terms and Conditions" means the terms and conditions contained in
this Schedule A.
1.12 "Global Consulting Alliance Program Member" means a company who has (i) at
least five hundred (500) Advanced Trained Certified Consultants; (ii)
consultants available in all of Baan's Targeted Countries in the
geographic region(s) where the relationship is active; (iii) deep industry
expertise in at least two of Baan's industry vertical markets.
1.13 "International Consulting Alliance Program Member" means a company who has
(i) at least seventy-five (75) Advanced Trained Consultants; (ii)
consultants available in all of Baan's Targeted Countries in the
geographic region(s) where the relationship is active; (iii) deep industry
expertise in at least one of Baan's industry vertical markets.
1.14 "Local Consulting Alliance Program Member" means a Company who has at
least twenty-five (25) Advanced Trained consultants in one country or
geographic area.
1.15 "Product Consulting" means implementation consulting relating to the
Software.
1.16 "Release" means a set of the Software in which in addition to possible
corrections of detected shortcomings, (small) functional enhancements have
been included. New Releases are registered by means of a change of the
number to the right of the decimal point, e.g. BAAN IV.0 >> BAAN IV. I.
1.17 "Software" means the suite of Baan applications software (including Baan
Tools and Baan Orgware) in object code form.
1.18 "Standard Training" means a Baan education course that is taught by a Baan
accredited trainer using the standard Baan curriculum and the standard
Baan materials. All standard training courses are scheduled through the
Baan education center in the region where the course is taught.
1.19 "Targeted Countries" means the countries set forth on Schedule C attached
hereto.
1.20 "Update" means a set of the Software in which detected shortcomings are
being remedied. Updates are registered by means of a letter indication
after the version number of the Software, e.g. BAAN IV.0 >> BAAN IV.0A.
1.21 "Version" means a set of the Software in which substantial new
functionalities or other substantial changes are introduced. Versions are
registered by means of a change of the number to the left of the decimal
point, e.g. BAAN IV.0 >> BAAN V.0.
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2. Interpretation
--------------
Section, Clause and Schedule headings are for convenience of reference
only and shall not affect the meaning or construction of any provision of
this Agreement.
3. Enhancements, modifications, translations
-----------------------------------------
3.1 Company shall not have the right to decompile, modify or alter the
Software in any manner that would in any way jeopardize the property
rights of Baan, or would provide Company access to source code or other
code that is not generally available to other Baan Alliance Program
Members or Customers; nor shall Company have the right to cause others to
make any copy of any part of the Software unless otherwise agreed to in
this Agreement. In the normal course of providing Consulting Services to
is Customers, Company shall have the right to make modifications and
enhancements to the Software where those modifications and enhancements
are accomplished solely through the use of Baan Tools, where they are for
the express and limited use of the Customer, and where they are
accomplished using practices generally accepted by Baan. Notwithstanding
the foregoing, ownership of computer software developed by Company shall
be as follows:
(a) "Source Code Modifications" means any computer software that consists
of modifications to the Source Code. Baan shall own any Source Code
Modifications. Company hereby assigns to Baan, and Baan hereby
accepts, all right, title and interest, including all intellectual
property rights, in and to such Source Code Modifications. Company
agrees to execute such applications, assignments and other instruments
as Baan may deem necessary or desirable to effect and perfect such
assignment. Company shall retain a non-exclusive, non-transferable and
non-assignable license to use such Source code Modifications under the
terms of this Agreement.
(b) "Integration Software" means any computer software that integrates the
Software to other computer software used by Company's Customers and
does not contain any modifications to the Source Code. Company shall
own any Integration Software.
(c) "Application Software" means any computer software that is created
using the Baan Tools and does not contain any modification to the
Source Code. Company shall own any Application Software.
Once per year, Company shall deliver tapes to Baan containing the Source
Code Modifications which have been developed by Company after the previous
delivery of such tapes .
3.2 Company shall not modify, translate, reproduce, edit, or resell Baan's
promotional literature, training materials, Documentation, advertising
artwork, the names and/or package design of the Software, or any other
materials that are copyrighted by Baan without Baan's prior written
consent. All modifications, translations, reproductions, and/or edited
versions of those items described in Sections 3.1 (a) and 3.2 will become
the exclusive property of Baan.
3.3 Baan shall notify Company of any new Updates, Releases or Versions of the
Software.
4. Payment
-------
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4.1 Copies of brochures, other marketing collateral and literature are to be
obtained at Baan's then-current rates, which rates are not to exceed (a)
Baan's then current published rates, or (b) the current rates charged to
other participants in the Baan Consulting Alliance Program.
4.2 All payments to Baan are due within thirty days after the invoice date,
unless specified otherwise in this Agreement, or within a subsequent
subcontractor agreement where Baan subcontracts to Company, or unless such
amounts are in dispute as specified in Section 5.3 herein. Payments are to
be paid to the invoice address.
4.3 If Company disagrees with an invoice, it shall contact Baan in writing
within fourteen (14) days from the invoice date, in the absence of which
the invoice shall be deemed to have been fully accepted by Company.
4.4 In the event, of overdue payment (excepting those payments that are in
dispute) Baan reserves the right to charge interest at one percent (1%)
per month, until the date payment in full is received by Baan.
5. Subcontracting
--------------
5.1 Company shall not, without Baan's prior written consent, subcontract the
delivery of Consulting Services to non-Advanced Trained consultants or
non-Advanced Trained independent contractors for Product Consulting or DEM
Consulting.
5.2 In the event the delivery of Consulting Services by Company is
subcontracted by Baan, Company will provide consultants to Baan at a rate
not to exceed 80 percent of the published Baan rates for comparable
consultants. The current published Baan rates are attached hereto as
Schedule D.
5.3 In the event the delivery of Consulting Services by Company is
subcontracted by Baan, Baan will pay Company for Consulting Services
performed within 14 days after payment is received by Baan from the
Customer, or within sixty (60) days whichever is sooner. Baan agrees to
use is best efforts, including, but not limited to, bringing collections
actions, to obtain payment from such Customer.
6. Intellectual Property Rights
----------------------------
6.1 Baan hereby represents that it owns or has the right to license the
Software and that, to the best of Baan's knowledge as of the date of this
Agreement after the exercise of due diligence, there is no pending
litigation involving Baan's Software which would affect Company's use of
the Software.
6.2 Company acknowledges that any and all of the trade marks, copyrights,
patents and other intellectual property rights, owned exclusively by Baan,
used or embodied in or in connection with the Software shall be and remain
the exclusive property of Baan.
6.3 Company shall ensure that the appropriate designation for the Software,
either (C) (copyright) or (R) (registered) or "TM" (trade ▇▇▇▇) or "SM"
(service ▇▇▇▇), as applicable and as provided by Baan, for all copyrights
and trademarks, shall be depicted in all Company's advertisements,
publications, public presentations, packages and external correspondence.
6.4 In the event of a pending seizure of the Software by a creditor of
Company, Company shall immediately inform Baan of this fact and take all
reasonable measures to ensure that the valid, existing intellectual
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property rights of Baan are recognized. All reasonable expenses incurred
by Baan in recovering seized Software from Company's creditors shall be at
Company's expense and shall be paid by Company.
6.5 Baan shall, at its expense, defend or settle any claim, action or
allegation brought against Company that the Software infringes any patent,
copyright, trade secret or other proprietary right of any third party and
shall pay any final judgments awarded or settlements entered into;
provided that Company gives prompt written notice to Baan of any such
claim, action or allegation of infringement and gives Baan the authority
to proceed as contemplated herein. Baan will have the exclusive right to
defend any such claim, action or allegation and make settlements thereof
at is own discretion, and Company may not settle or compromise such claim,
action or allegation, except with prior written consent of Baan. Company
shall give such assistance and information as Baan may reasonably require
to settle or oppose such claims.
7. Liability
---------
7.1 If one of the parties does not properly observe one or more of his
obligation(s) under the Agreement, the other party will grant him by means
of a written declaration of material breach, thirty (30) days to cure this
breach. If the party in breach fails to cure this breach, then such party,
will be liable for the compensation of the damage suffered by the other
party, subject to the terms and conditions of this Agreement.
7.2 Except as set forth, Baan makes no warranties, whether express, implied,
or statutory, regarding or relating to the Software or the Documentation,
or any materials or services furnished or provided to Company under this
Agreement. Baan specifically disclaims all implied warranties of
merchantability and fitness for a particular purpose with respect to the
Software, Documentation and said other materials and services, and with
respect to the use of any of the foregoing.
7.3 Neither Party shall be liable for any loss of profits, loss of use,
business interruption, loss of data, cost of cover or indirect, special,
incidental and/or consequential damages of any kind in connection with or
arising out of the furnishing, performance or use of the Software or
services performed hereunder, whether alleged as a breach of contract or
tortious conduct, including negligence, even if that Party has been
advised of the possibility of such damages. In addition, neither Party
will be liable for any damages caused by delay in delivery, or furnishing
the Software or said services. Baan's liability under this Agreement for
direct, indirect, special, incidental and/or consequential damages of any
kind, including, without limitation, restitution, will not, in any event,
exceed the amount paid to Baan by Company under this Agreement.
7.4 Notwithstanding anything to the contrary, contained herein, Baan's
liability under Section 6.5 shall not be subject to any of the limitation
of liability contained in this Section 7.
8. Termination or expiry
---------------------
8.1 Notwithstanding any provisions contained herein, this Agreement may be
terminated with immediate effect by either party upon written notification
by the party not at fault to the other party if any of the following
events takes place: (i) if the other party, at any time is in material
breach of any term, condition or provision of this Agreement, and such
breach, if capable of being cured, is not cured within thirty (30) days,
upon receipt of a written notification from the party not at fault
specifying such breach; or (ii) if either party becomes insolvent, admits
in writing is inability to pay is debts as they mature, makes an
assignment for the benefit of its creditors, files or has filed against it
by a third party any petition under any Bankruptcy Act, or an application
for a receiver of either party is made by anyone and such petition or
application is not resolved in favor of such party within sixty (60) days
after such event taking place. If
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any of these ▇▇▇▇▇ occur, termination shall become effective forthwith or
on the date set forth in the written notice of termination.
8.2 Upon expiry, or termination (for whatever reason) of this Agreement,
Company shall return or destroy (as Baan shall instruct) within a
reasonable period of time thereafter any Documentation, technical
information and any other data in respect of the Software supplied by Baan
to Company during the term of this Agreement and all and any copies made
in whole or in part of the same, and if requested, Company shall furnish
Baan with a written statement certifying that the same has been done,
except for (a) such supporting software, information and data which
Company will require to support the Software beyond the date of expiry or
termination provided Baan permits Company to do so, or (b) copies of
information which Company may be required to keep under the rules or
regulations governing professional consultants and/or accountants. If
Company has paid for any items which are required to be returned to Baan,
then, upon the return of such items from Company to Baan, Baan shall
reimburse Company for such items.
8.3 Termination of this Agreement shall not affect the provisions regarding
the Parties' treatment of Confidential Information, provisions relating to
the payment of amounts due, or provisions limiting or disclaiming Baan's
liability, which provisions will survive termination of this Agreement.
8.4 Sections 6.5, 14 and 17 herein shall survive termination of this
--------------------------
Agreement.
9. Force Majeure
-------------
Neither party will incur any liability to the other party on account of
any loss or damage resulting from any delay or failure to perform all or
any part of this Agreement if such delay or failure is caused, in whole or
in part, by events, occurrences, or causes beyond the control and without
negligence of the parties. Such ▇▇▇▇▇, occurrences, or causes will
include, without limitation, acts of God, strikes, lockouts, riots, acts
of war, earthquakes, fire and explosions, but the inability to meet
financial obligations is expressly excluded.
10. Waiver
------
Any waiver of the provisions of this Agreement or of a party's rights or
remedies under this Agreement must be in writing to be effective. Failure,
neglect, or delay by a party to enforce the provisions of this Agreement
or its rights or remedies at any time, will not be construed and will not
be deemed to be a waiver of such party's rights under this Agreement and
will not in any way affect the validity of the whole or any part of this
Agreement or prejudice such party's right to take subsequent action.
Except as expressly stated in this Agreement, no exercise or enforcement
by either party of any right or remedy under this Agreement will preclude
the enforcement by such party of any other right or remedy under this
Agreement or that such party is entitled by law to enforce.
11. Severability
------------
If any term, condition, or provision in this Agreement is found to be
invalid, unlawful or unenforceable to any extent, the parties shall
endeavor in good faith to agree to such amendments that will preserve, as
far as possible, the intentions expressed in this Agreement. If the
parties fail to agree on such an amendment, such invalid term, condition
or provision will be severed from the remaining terms, conditions and
provisions, which will continue to be valid and enforceable to the fullest
extent permitted by law.
12. Assignment
----------
Neither this Agreement nor any rights under this Agreement may be assigned
or otherwise transferred by Company, in whole or in part, whether
voluntary or by operation of law, including by way of sale of
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assets, merger or consolidation, without the prior written consent of
Baan, which consent will not be unreasonably withheld. Subject to the
foregoing, this Agreement will be binding upon and will inure to the
benefit of the parties and their respective successors and assigns.
13. Independent Parties
-------------------
The parties shall at all times be independent Parties and shall present
themselves to all other parties as such. Nothing in this Agreement will be
construed to make either Party, and each party agrees that it is not, an
agent, employee, franchisee, joint venturer or legal representative of the
other Party. Except as otherwise provided in this Agreement, neither Party
will either have nor represent itself to have any authority to bind the
other Party or act on is behalf.
14. Confidential information
------------------------
Company and Baan shall treat all proprietary, and/or confidential
information of each other as strictly confidential. The parties hereby
agree that all terms and conditions of this Agreement and Schedules
thereto shall be treated as confidential and shall not be disclosed
without the other party's prior written consent. This confidentiality
undertaking shall not apply to any part of the proprietary, and/or
confidential information of which the recipient party can prove that: (i)
it was known to it prior to being furnished to the recipient party
hereunder (as evidenced by written record predating such disclosure); (ii)
it is, or becomes public knowledge through no fault or breach of the terms
of this Agreement by the recipient party; (iii) is received by the
recipient party from a third party in good faith and not in breach of any
agreement; or (iv) is independently acquired by the recipient party as a
result of work carried out by an employee of the recipient party to whom
no disclosure of this proprietary, and/or confidential information has
been made. If a Baan-dedicated consultant is moved from the Baan practice
to a Company practice of a direct competitor of Baan, Company shall ensure
that all that consultant's access to Baan confidential information sources
(e.g., access to Baan alliance databases) and to Baan confidential
information is terminated immediately.
15. Amendments to this Agreement.
----------------------------
This Agreement may not be amended, except by a writing signed by both
parties.
16. Counterparts.
-------------
This Agreement may be executed in counterparts, each of which so executed
will be deemed to be an original and such counterparts together will
constitute one and the same agreement.
17. Applicable law and arbitration
------------------------------
This Agreement will be interpreted and construed in accordance with the
laws of the State of California and the United States of America, without
regard to conflict of law principles.
--------------------------------------------------------------------------------
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11
SCHEDULE B
CONSULTING ALLIANCE MAINTENANCE
AND SUPPORT AGREEMENT
--------------------------------------------------------------------------------
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12
SCHEDULE C
BAAN'S TARGETED COUNTRIES
1997 1998
---- ----
AMERICAS U.S.A. U.S.A.
Canada Canada
Brazil Brazil
Mexico
EUROPE/MIDDLE EAST/AFRICA The Netherlands The Netherlands
Germany Germany
Italy Italy
United Kingdom United Kingdom
France France
Nordic
ASIA PACIFIC Japan Japan
India India
Korea Korea
Australia
Chinas
--------------------------------------------------------------------------------
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13
SCHEDULE D
BAAN'S CURRENT PUBLISHED RATES
PROFESSIONAL SERVICES TO BE PROVIDED
BAAN FIELD CONSULTING RESOURCE HOURLY RATE *
------------------------------ ---------------
Sr. Implementation Specialist, Program Manager $ 375 ($3000)
Implementation Specialist/Project Manager $ 250 ($2000)
Implementation Support Mgr./Implementation Auditor $ 250 ($2000)
Product Specialist $ 225 ($1800)
Technical Specialist $ 200 ($1600)
Programmer Analyst $ 150 ($1200)
CENTER OF EXPERTISE RESOURCES HOURLY RATE *
----------------------------- ---------------
Sr. Implementation Consultant/Sr. Program Manager $ 425 ($3400)
Sr. Product Consultant $ 375 ($3000)
Product Consultant $ 250 ($2000)
NOTES:
------
It is Baan's practice to charge by the hour, for convenience we indicate in
parenthesis what the charge would be for an eight hour day. All quotes should be
done using the hourly rate.
Minimum time: In general, we do not accept work of less than one day duration.
------------
If requested by the customer, and agreed upon by Baan, this work will be a
custom quote.
Custom Modification: Charges above do not apply for developing interface
--------------------
programs to software or hardware not directly provided by BAAN, this work will
be a custom quote.
Travel & Living Costs: In addition to above rates, there are charges for travel
---------------------
and living expenses as incurred (hotel, meals, travel costs, etc.) Travel time
is considered billable time, from consultant's home to customer site billed at
50% of hourly rate. Customer may request a per diem charge. Baan is willing to
negotiate a per diem for long term assignments. Baan's policy for per diem rates
is to follow IRS guidelines.
Remote Support: All support provided remotely from consultant home office or
---------------
Baan office will be surcharged by $60/hour to account for long distance/fax
charges. This charge is in addition to the hourly consulting fee and is a
blended rate to cover cell phone charges, long distance direct dial charges, fax
charges, and home office secretarial support.
Discounting of Services: It is Baan's policy to NOT discount Consulting
-------------------------
Services and Training fees, except for the following situations;
- Consulting Package is paid up front in increments of $250K, and charges
deducted from prepaid account When balance is used, rates go back to list
price or account must be replenished. 10% discount available for prepayment.
- Resource utilization of 5 billable days per week guaranteed for a period of
six months for one resource. If resource is used after that period with no
additional lock-in, rate reverts to list price. Discount only applies to each
consulting level guaranteed, at 10% off list.
Rate Increases: Baan reserves the right to modify consulting and training rates
--------------
with 90 days notice. We will not agree to cap rates for the duration of a
contract or to a minimum level per year. Any forced negotiation of this type
will have a direct impact on the quality of resource Baan is able to provide on
the implementation team. It is Baan's general policy to modify rates on an
annual basis.
--------------------------------------------------------------------------------
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14
ADDENDUM NUMBER ONE TO CONSULTING ALLIANCE AGREEMENT
----------------------------------------------------
This is Addendum Number One (the "Addendum") to that certain Consulting Alliance
Agreement dated , 1997 (the "Agreement"), by and between Intelligroup,
------
Inc. ("Company") and Baan International B.V. ("Baan").
In consideration of the mutual covenants set forth herein and in the Agreement,
Company and Baan agree as follows:
Priority. The parties agree that the Agreement is hereby amended as set forth in
--------
this Addendum. Any inconsistency between this Addendum and the Agreement shall
be resolved in favor of the intent of the parties as expressed by this Addendum.
Terms used herein with the initial letter capitalized which are not otherwise
defined herein, shall have the meaning given said terms in the Agreement. The
Agreement as amended by this Addendum Number One shall remain in full force and
effect.
2.5 Orgware and Baan Methodology Compliance. The following sentence is hereby
-----------------------------------------
added to the end of Section 2.5: "Baan shall treat all proprietary and/or
confidential information regarding Company's methodology, format of Project
proposal, and format of Project budget, as strictly confidential and shall not
disclose such information without Company's prior written consent."
3.4 Maintenance and Support. The words "Schedule B hereof" in Section 3.4 are
-------------------------
hereby deleted and replaced with the words "the Maintenance and Support
Agreement entered into by the parties dated 28 February 1997".
3.13 Fee. The following is hereby added to the end of Section 3. 13: "For
----
calendar year 1997, Baan shall charge no additional fees to Company for any of
the privileges set forth in Sections 3.1 through 3. 12. For calendar year 1998,
the fee that Baan shall charge Company for the privileges set forth in Section
3.1 through 3.12 shall be US$50,000, which shall include single-site Maintenance
and Support for USA and single-site Maintenance and Support for India."
4. (Schedule A) Payment. The following sentence is hereby added to the end of
--------
Section 4.1 of Schedule A: "A Baan Literature and Distribution Center Order
Form, which lists the prices for Baan literature, is attached hereto as Schedule
B."
12. (Schedule A) Assignment. The following text is inserted at the end of the
-----------
first sentence of Section 12 of Schedule A, before the period:
"or delayed, provided that Company may, without the prior written
consent of Baan, assign this Agreement in whole to a successor to all or
substantially all of its assets by sale, merger or acquisition which has assumed
in writing or by operation of law Company's obligations under this Agreement and
which does not make software which is in competition with the Software. Company
may, if it believes that software made available by a prospective assignee is
not in competition with the Software but wishes to obtain an acknowledgment from
Baan that Baan agrees with that belief, request such an acknowledgment from
Baan, and Baan will not unreasonably withhold or delay that acknowledgment. In
the event that Company assigns this Agreement to a successor which does make
software which is in competition with the Software, this Agreement shall
terminate effective immediately."
Addendum Number One To
Consulting Alliance Agreement
Intelligroup, Inc.
================================================================================
14. (Schedule A) Confidential information. The following is hereby added to the
-------------------------
end of the third sentence of Section 14 of Schedule A, before the period:
"; (v) is required to be disclosed by the receiving party by order of a court of
competent jurisdiction, administrative agency or governmental body, or by any
law, rule or regulation, or by subpoena, or any other administrative or legal
process, or by applicable regulatory or professional standards."
The last sentence of Section 14 of Schedule A is hereby deleted.
Schedule B The words "CONSULTING ALLIANCE MAINTENANCE AND SUPPORT AGREEMENT" in
----------
Schedule B are hereby deleted and replaced with the following:
"BAAN LITERATURE DISTRIBUTION CENTER ORDER FORM"
--------------------------------------------------------------------------------
Baan Literature
Distribution center
Order Form
--------------------------------------------------------------------------------
Part Number Description Number Unit Quantity Cost
of Cost ordered
pieces
per
unit
--------------------------------------------------------------------------------
Baan Audio/Video
--------------------------------------------------------------------------------
19004 US CD ROM Baan World '96 1 $4.00 $-
--------------------------------------------------------------------------------
19005 US Baan IV Opening Video 1 $5.30 $-
--------------------------------------------------------------------------------
19012 US Jan Baan Video 1 $5.30 $-
--------------------------------------------------------------------------------
19013 US ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1 $5.30 $-
--------------------------------------------------------------------------------
33206A Baan/Microsoft Video Announcement 1 $5.30 $-
--------------------------------------------------------------------------------
19102 Baan IV BackOffice Video - VHS Tape 1 $2.50 $-
--------------------------------------------------------------------------------
19103 Baan IV BackOffice Video - PAL Tape 1 $2.50 $-
--------------------------------------------------------------------------------
19104 ▇▇▇▇▇▇▇ Windows Video - VHS Tape 1 $2.50 $-
--------------------------------------------------------------------------------
19105 ▇▇▇▇▇▇▇ Windows Video - PAL Tape 1 $2.50 $-
--------------------------------------------------------------------------------
19106 Baan for the Microsoft Market - 1 $2.50 $-
VHS Tape
--------------------------------------------------------------------------------
19107 Baan for the Microsoft Market - 1 $2.50 $-
PAL Tape
--------------------------------------------------------------------------------
Baan Reprints
--------------------------------------------------------------------------------
19001 US CompWorld-The Don of ▇▇▇▇ ▇▇ $175.00 $-
--------------------------------------------------------------------------------
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Reprint--Out of Nowhere 50 $21.00 $-
--------------------------------------------------------------------------------
19003 US Baan Storm Reprint 50 $100.00 $-
--------------------------------------------------------------------------------
19007 US Computer World--High Flying ▇▇▇▇ ▇▇ $7.00 $-
--------------------------------------------------------------------------------
19008 US CIME Reprint: Revving Up Production 50 $9.50 $-
--------------------------------------------------------------------------------
19015 US Fortune Reprint: Hip, Hot, 'N' 50 $48.00 $-
Happening
--------------------------------------------------------------------------------
19018 US Computer World--Baan IV 50 $16.50 $-
Implementation
--------------------------------------------------------------------------------
19026 US Computing Canada--Faster 50 $10.50 $-
Implementation
--------------------------------------------------------------------------------
19028 ATP--Giving SAP a Run for its Money 50 $37.50 $-
--------------------------------------------------------------------------------
2
Int.AdC.doc
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Addendum Number One To
Consulting Alliance Agreement
Intelligroup, Inc.
================================================================================
--------------------------------------------------------------------------------
19029 Software--Jan Baan: This Avis is... 50 $17.50 $-
--------------------------------------------------------------------------------
19030 Microsoft/Baan Reprint in 50 $50.00 $-
Computerworld
--------------------------------------------------------------------------------
19031 Aberdeen Report Profile 50 $18.00 $-
--------------------------------------------------------------------------------
13029 Heavy Equipment Industry 25 $30.00 $-
--------------------------------------------------------------------------------
19032 Information Week - Baan Aims for 50 $ 15.00 $-
New Base
--------------------------------------------------------------------------------
19033 Investors Business Daily - 50 $15.00 $-
February 19, 1997
--------------------------------------------------------------------------------
19034 Communications Week 50 $15.00 $-
--------------------------------------------------------------------------------
19036 Industry Week 25 $15.00 $-
--------------------------------------------------------------------------------
19037 Gartner Group Report 10 $35.00 $-
--------------------------------------------------------------------------------
19040 AMR Alert on Manufacturing - Aurum 25 $25.00 $-
Acquisition
--------------------------------------------------------------------------------
Baan and Microsoft
--------------------------------------------------------------------------------
098-66141 UPDATED Microsoft Solution Product 25 $50.00 $-
Guide
--------------------------------------------------------------------------------
19017 US Baan/Microsoft White Polo Shirt 1 $22.00 $-
w/logo
--------------------------------------------------------------------------------
9622 US Baan/Microsoft brochure: Enable 25 $43.75 $-
Dynamic
--------------------------------------------------------------------------------
9622A US Box: Enterprise Computing 1 $8.00 $-
RFP Standards Material
--------------------------------------------------------------------------------
19019 US Cover/Spine Slip 5 $12.50 $-
--------------------------------------------------------------------------------
19021 US Tabs 5 $26.00 $-
--------------------------------------------------------------------------------
19022 US Binder--2 inch 5 $27.00 $-
--------------------------------------------------------------------------------
19023 US Title Page 5 $3.25 $-
--------------------------------------------------------------------------------
Baan Success Stories
--------------------------------------------------------------------------------
15001 -796 US Global Industrial Technologies 25 $18.75 $-
--------------------------------------------------------------------------------
15002-696 US ▇▇▇▇ Instruments 25 $13.50 $-
--------------------------------------------------------------------------------
15003-696 US Teledyne 25 $13.5 $-
--------------------------------------------------------------------------------
15004-696 US Teknion 25 $13.50 $-
--------------------------------------------------------------------------------
9626 US Bull Electronics 25 $30.00 $-
--------------------------------------------------------------------------------
9634 US Transfield Defense Systems 25 $30.00 $-
--------------------------------------------------------------------------------
9635 US Hitachi 25 $30.00 $-
--------------------------------------------------------------------------------
9636 US Kee Hin industries 25 $30.00 $-
--------------------------------------------------------------------------------
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 25 $30.00 $-
--------------------------------------------------------------------------------
9638 US Mercedes-Benz 25 $30.00 $-
--------------------------------------------------------------------------------
9639 US ▇▇▇▇▇▇ Griesheim 25 $30.00 $-
--------------------------------------------------------------------------------
9640 US Palmco Oil 25 $30.00 $-
--------------------------------------------------------------------------------
Baan IV Brochures
--------------------------------------------------------------------------------
9602 US Product Overview 25 $43.75 $-
--------------------------------------------------------------------------------
9603 US Corporate Overview 25 $43.75 $-
--------------------------------------------------------------------------------
9608 US Orgware 25 $43.75 $-
--------------------------------------------------------------------------------
9609 US Manufacturing 25 $43.75 $-
--------------------------------------------------------------------------------
9610 US Distribution & Transportation 25 $43.75 $-
--------------------------------------------------------------------------------
9611 US Finance 25 $43.75 $-
--------------------------------------------------------------------------------
9612 US Project 25 $43.75 $-
--------------------------------------------------------------------------------
3
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Addendum Number One To
Consulting Alliance Agreement
Intelligroup, Inc.
================================================================================
--------------------------------------------------------------------------------
9613 US Service 25 $43.75 $-
--------------------------------------------------------------------------------
9614 US Tools 25 $43.75 $-
--------------------------------------------------------------------------------
Baan Vertical Market information
--------------------------------------------------------------------------------
9604 US Automotive Brochure 25 $43.75 $-
--------------------------------------------------------------------------------
9605 US Electronics Brochure 25 $43.75 $-
--------------------------------------------------------------------------------
9606 US Project Industries Brochure 25 $43.75 $-
--------------------------------------------------------------------------------
9607 US Process Industries Brochure 25 $43.75 $-
--------------------------------------------------------------------------------
9641 US Aerospace & Defense Brochure 25 $43.75 $-
--------------------------------------------------------------------------------
19014 Transmission--Automotive Journal #1 1 $4.30 $-
--------------------------------------------------------------------------------
13021 Transmission--Automotive Journal #2 1 $4.50 $-
--------------------------------------------------------------------------------
10001 US Baan Electronics Overview 25 $33.50 $-
--------------------------------------------------------------------------------
Baan Training and Support
--------------------------------------------------------------------------------
9642 US Global Support Brochure 1 $4.30 $-
--------------------------------------------------------------------------------
9643 US Global Support Brochure and CD ROM 1 $24.20 $-
--------------------------------------------------------------------------------
Baan Products--Other
--------------------------------------------------------------------------------
11000 US 1995 Annual Report 5 $37.50 $-
--------------------------------------------------------------------------------
11096 1996 Annual Report 5 $37.50 $-
--------------------------------------------------------------------------------
19025 US Baan/HP T-shirt 1 $4.00 $-
--------------------------------------------------------------------------------
19006 US The Baan Book--Ongoing Innovation 1 $13.00 $-
--------------------------------------------------------------------------------
19101 DEM Book 1 $50.00 $-
--------------------------------------------------------------------------------
9616 US Baan Presentation Folder 1 $1.30 $-
--------------------------------------------------------------------------------
19500 Baan Merchandise 4-color catalog 1 $3.00 $-
--------------------------------------------------------------------------------
19501 CONTINUE Brochure 1 $1.50 $-
--------------------------------------------------------------------------------
2100US Baan Capital Brochure (leasing 10 $9.00 $-
program)
--------------------------------------------------------------------------------
250010-597 Baan Technology for the Enterprise 10 $32.00 $-
- White paper
--------------------------------------------------------------------------------
00BAG Trade Show Bag 1 $1.00 $-
--------------------------------------------------------------------------------
Baan Partners
--------------------------------------------------------------------------------
12001 Solution Partner Program 25 $25.00 $-
Brochure-VAR
--------------------------------------------------------------------------------
12012 Baan Consulting Brochure 25 $42.50 $-
--------------------------------------------------------------------------------
12002 Baan and Sterling Commerce Solution 1 Free! 0
--------------------------------------------------------------------------------
19502 Baan World Users Brochure 1 $2.50 $-
--------------------------------------------------------------------------------
19011-596US E&Y Baan Service Timely Solution 10 Free! 0
--------------------------------------------------------------------------------
12005 Baan/DB2 Brochure 25 $12.50 $-
--------------------------------------------------------------------------------
12009 Baan/Compaq Brochure 25 S25.00 $-
--------------------------------------------------------------------------------
12010 Managing Automation 25 $25.00 $-
--------------------------------------------------------------------------------
12011 Deloitte&Touche Fast Track Brochure 10 $ 10.00 $-
--------------------------------------------------------------------------------
12015 Deloitte&Touche Process Brochure 10 $ 10.00 $-
--------------------------------------------------------------------------------
12013 Deloitte&Touche Automotive Brochure 10 $ 10.00 $-
--------------------------------------------------------------------------------
12014 Deloitte&Touche A&D Brochure 10 $ 10.00 $-
--------------------------------------------------------------------------------
12020-597 Solution Partners Guide 1 $6.75 $-
--------------------------------------------------------------------------------
12000-796 Baan Service Partner Guide 1 $8.33 $-
--------------------------------------------------------------------------------
4
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Addendum Number One To
Consulting Alliance Agreement
Intelligroup, Inc.
================================================================================
$-
LDC
Order
Total:
======================================
IN WITNESS WHEREOF, the parties have executed this Addendum as of the date first
written above.
Baan: Company:
BAAN INTERNATIONAL B.V. INTELLIGROUP, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------ --------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, BAAN Title: Vice President, Marketing & Business
Consulting Development
Date: 26 September 1997 Date: 29 September 1997
5
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