EXHIBIT 10.2.1
AGREEMENT NUMBER: AM001-MSA
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MASTER SERVICES AGREEMENT
This Agreement is made as of December 1, 1999 ("Effective Date"),
between Linuxcare, Inc., a Delaware corporation with an office at 000 Xxxxxxxx
Xxxxxx, Xxx Xxxxxxxxx, XX 00000, XXX (Phone: 000-000-0000; Fax: 000-000-0000; E-
mail: xxxxxxx@xxxxxxxxx.xxx, ("Linuxcare") and the "Customer" listed below.
Customer: Xxxxxx Corporation Contact: Xxxxxxx Xxxxxxxx
Address: 0000 Xxxx Xxxxxx Xxxxxx Phone: (000) 000-0000
Xxxxxxxxx, Xxxxxxxxxx 00000 Fax: (000) 000-0000
E-Mail: xxxxxxx_xxxxxxxx@xxxxxx.xxx
SERVICES INFORMATION
Service Level: OEM
Service Fee Period 18 Months from
Signature
SERVICES PROVIDED
Subject to payment of all applicable fees, Linuxcare will use reasonable
commercial efforts to perform the support services specified in Linuxcare's
current, published "Linuxcare Technical Support Programs" documentation
appropriate to the Service Level selected by Customer ("Services"), in
accordance with the Terms and Conditions exhibit attached to this Agreement, and
otherwise set forth in the "Linuxcare Technical Support Programs" documentation.
Linuxcare may change the "Linuxcare Technical Support Programs" documentation,
and the services that will be performed for a particular Service Level, at any
time; such changes will take effect at the beginning of the next Service Fee
Period. Customer understands that Linuxcare's performance is dependent in part
on Customer's actions. Accordingly, any dates or time periods relevant to
performance of Services by Linuxcare shall appropriately and equitably extended
to account for any delays resulting from changes to Customer products or
otherwise due to Customer. Customer may request additional hours or levels of
Services ("Extended Services"), which Linuxcare may provide at Linuxcare's sole
discretion, provided that Customer pays Linuxcare's then current fees for such
Extended Services.
This Agreement includes the attached Terms and Conditions Exhibit, and contains,
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among other things, warranty disclaimers and liability limitations. Any
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different or additional terms of any related purchase order, confirmation, or
similar form even if signed by the parties after the date hereof shall have no
force or effect. References in this Agreement or the Terms and Conditions
Exhibit to a capitalized term appearing on this cover page shall have the
meaning or value of such term on this cover page.
Customer: Linuxcare:
By: /s/ Xxxxxxx Jestron By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxxx Jestron Name: Xxxxxx X. Xxxxxxxx
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Title: DIRECTOR of PURCHASING Title: V.P. Sales
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TERMS AND CONDITIONS EXHIBIT
1. Training. Subject to payment of all fees, Linuxcare will provide the
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training specified in Linuxcare's current, published "Linuxcare Training
Programs" documentation. Unless otherwise arranged between Customer and
Linuxcare, all training shall occur at Linuxcare's facilities in San Francisco,
California. The fees for training will be Linuxcare's current, published
training fees, less the Training Discount ("Training Fees").
2. Fees and Payment. Customer shall pay Linuxcare the fees for the selected
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Service Level shown in Linuxcare's current price list, less the Service Discount
("Service Fees"). Customer will pay the Service Fees for the initial Service Fee
Period within 15 days of the Effective Date. Customer will pay the Service Fees
and Extended Service fees within 45 days after receipt of Linuxcare's invoice.
Customer will also pay Linuxcare all Training Fees and Extended Services fees
within 45 days after receipt of Linuxcare's invoice therefor. All payments are
non-refundable. Any payments over 30 days overdue will bear a late payment fee
of the lower of 1.5% per month or the maximum rate allowed by law provided that
payment is not reasonably in dispute by Customer.
3. Proprietary Rights. As between the parties, Linuxcare will retain all
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right, title and interest in and to any software, tools, techniques, and other
materials used in connection with providing the Services ("Linuxcare
Materials"). As between the parties, Customer will retain all right, title and
interest in and to any software, products, documentation and other materials it
supplies. Linuxcare hereby assigns to Customer all right, title and interest, in
any work product created as part of the Services ("Work Product"), but this
assignment does not include any portion of the Linuxcare Materials, and will not
prevent Linuxcare from using the expertise, ideas and know-how learned while
performing Services for other purposes (including, without limitation, for
itself or on behalf of third parties).
4. Confidential Information. Neither party will disclose its Confidential
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Information to the other, except under a specific nondisclosure agreement.
5. Termination. This Agreement will continue until terminated by either party.
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Either party may terminate this Agreement upon thirty (30) days written notice
to the other party, except if Linuxcare is terminating the Agreement such
termination will not be effective until the end of any fully paid-up Service Fee
Period. Linuxcare may terminate this Agreement at any time in the case of non-
payment by Customer of any fees which have not been reasonably disputed by
Customer, unless Customer pays such fees in full within ten (10) days after such
notice. Sections 4, 5, 7, 8, and 9 of this Agreement, and all accrued rights to
payment, shall survive termination. Termination is not an exclusive remedy and
all other remedies will be available whether or not termination occurs.
6. Warranty and Disclaimer. Linuxcare hereby warrants to Customer, and only
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Customer, that all Services shall be performed in a professional and workmanlike
manner. THE PARTIES ACKNOWLEDGE THAT THIS IS AN AGREEMENT FOR SERVICES AND NOT
FOR THE SUPPLY OF GOODS. EXCEPT FOR THE FOREGOING, LINUXCARE MAKES NO OTHER
WARRANTIES OR REPRESENTATIONS AS TO THE SERVICES RENDERED, AND HEREBY DISCLAIMS
ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NONINFRINGEMENT. LINUXCARE FURTHER DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL
SUCCEED IN RESOLVING ANY PROBLEM, OR THAT ANY WORK PRODUCT OF THE SERVICES WILL
BE FREE FROM PROGRAM ERRORS.
7. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR
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OTHERWISE, AND EXCEPT FOR BODILY INJURY AND PROPERTY DAMAGE:
7.1 LINUXCARE SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT
MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER LEGAL OR EQUITABLE THEORY: (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE
OF THE FEES PAID TO IT HEREUNDER WITH RESPECT TO THE APPLICABLE SERVICES; (II)
FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS;
OR (III) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA.
7.2 NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE OR OBLIGATED WITH RESPECT
TO THE
SUBJECT MATTER OF THIS AGREEMENT. FOR ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES OR LOST PROFITS.
8. Export Control. Customer shall comply with the U.S. Foreign Corrupt
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Practices Act and all applicable export laws, restrictions, and regulations of
the U.S. and foreign agency or authority.
9. Miscellaneous. This Agreement is not assignable or transferable by Customer
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without the prior written consent of Linuxcare; any attempt to do so shall be
void. Subject to Customer's consent, which will not be unreasonably withheld,
Linuxcare may assign this Agreement in whole or in part, or subcontract the
performance of Services to third parties. The parties agree that they are
independent contractors and that this Agreement and relations between Linuxcare
and Customer hereby established do not constitute a, joint venture, agency or
contract of employment between them, or any other similar relationship. Neither
party has the right or authority to assume or create any obligation or
responsibility on behalf of the other. Any notice, report, approval or consent
required or permitted hereunder shall be in writing. No failure or delay in
exercising any right hereunder will operate as a waiver thereof, nor will any
partial exercise of any right or power hereunder preclude further exercise. If
any provision of this Agreement shall be adjudged by any court of competent
jurisdiction to be unenforceable or invalid, that provision shall be limited or
eliminated to the minimum extent necessary so that this Agreement shall
otherwise remain in full force and effect and enforceable. This Agreement shall
be deemed to have been made in, and shall be construed pursuant to the laws of
the State of California and the United States without regard to conflicts of
laws provisions thereof. Any waivers or amendments shall be effective only if
made in writing. This Agreement is the complete and exclusive statement of the
mutual understanding of the parties and supersedes and cancels all previous
written and oral agreements and communications relating to the subject matter of
this Agreement. The prevailing party in any action to enforce this Agreement
will be entitled to recover its attorney's fees and costs in connection with
such action.
XXXXXX STATEMENT OF WORK
LINUXCARE CONFIDENTIAL
EXHIBIT A
STATEMENT OF WORK, TECHNICAL SUPPORT
CONTROL
Document ID AM0001
Location X459
Originator Xxx Xxxxxx
T.S.Approval
Issue Date 11/23/1999
Status
Version 1.0
DISTRIBUTION
LINUXCARE
XXXXXX
CORPORATION
VERSION MODIFIED BY DATE DESCRIPTION
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0.1 Xxx Xxxxxx 11/23/1999 Initial SOW
0.2 Revisions as discussed with ISP.
LINUXCARE PAGE 1 OF 8
Rev: 11-05-1999 Tech. Svc.
TABLE OF CONTENTS
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1 INTRODUCTION 3
1.1 TERM 3
1.2 LIMITATION ON LIABILITY 3
1.3 NO TRANSFER RIGHTS 3
1.4 RENEWAL AND TERMINATION 3
2 RELATIONSHIP OBJECTIVES 4
2.1 RELATIONSHIP 4
2.2 DEFINITIONS 4
2.3 PAYMENT 4
2.3.1 Currency 4
3 SERVICES 5
3.1 SERVICE SCOPE 5
3.1.1 Service Entitlement: 5
3.1.2 Service Delivery: 5
3.1.3 Hours of Operation: 5
3.1.4 Response, Report and Resolution: 5
3.2 SERVICE RATE AND BILLING 5
3.2.1 Telecommunication Costs 5
3.2.2 Rate and Billing 6
3.3 SERVICE REQUEST PROCEDURE 6
3.4 SERVICE RESTRICTIONS 6
4 MANAGEMENT 7
4.1 LINUXCARE'S RESPONSIBILITY AND OBLIGATION 7
4.1.1 Personnel 7
4.1.2 Quality of Service 7
4.1.3 Fair Representation 7
4.1.4 Audit Information 7
4.2 CUSTOMER'S RESPONSIBILITY AND OBLIGATION 7
4.2.1 Forecast and Minimum Service 7
4.2.2 Certification 7
4.2.3 Service Request Routing Facility 7
4.2.4 Escalation Point of Contact 7
PAGE 2 OF 8
1 INTRODUCTION
This Statement of Work, No. AM0001 ("SOW"), effective 01/01/2000 is agreed upon
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by sets forth the agreement between Linuxcare Inc. ("LINUXCARE") and Xxxxxx
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Corporation ("CUSTOMER") regarding the services to be provided by services
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provided by LINUXCARE pursuant to the Master Services Agreement between
LINUXCARE and CUSTOMER dated 01/01/2000.
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This document is intended solely for CUSTOMER and LINUXCARE, constitutes
Confidential Information under the Master Services Agreement and is not be
provided to third parties without the prior written consent of LINUXCARE.
1.1 TERM
The service period of the SOW shall commence on the effective date and continue
for the period of 18 months 06/01/2001 (the "Term"), unless earlier terminated
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under the Master Service Agreement.
During the period LINUXCARE and CUSTOMER will evaluate CUSTOMER's needs and
LINUXCARE's service capacity as basis of negotiation for the next service
period.
1.2 FORCE MAJEURE Neither CUSTOMER nor LINUXCARE shall be in breach of this
agreement or be held liable for any damage due to any failure of
performance that arises out of causes beyond either party's control after
exercising its reasonable efforts to perform.
1.3 NO TRANSFER RIGHTS
This SOW, and all rights under and describe by it herein, can not be transferred
or assigned by CUSTOMER. Any attempt to transfer, assign or re-use the right
contained by CUSTOMER is a violation and shall immediately terminate this SOW
and all rights under it.
1.4 RENEWAL AND TERMINATION
Two (2) months prior to expiration of an existing Term, CUSTOMER and LINUXCARE
shall meet to: (1) evaluate the quality of the service provided, and (2)
evaluate whether it is appropriate to adjust the service scope and duration of a
future Term, and (3) in the case of agreement with respect to an adjustment of
the service scope or duration of the Term, mutually agree in writing as to such
future Term.
PAGE 3 OF 8
2 RELATIONSHIP OBJECTIVES
2.1 RELATIONSHIP
The structure of the LINUXCARE and CUSTOMER relationship is outlined in the
following diagram:
[CHART OMITTED]
2.2 DEFINITIONS
"END USER" means a customer of CUSTOMER.
"Linux" shall mean the Linux operating system.
"SEVERITY 1" A critical system component, network or application is non-
operational and the End User cannot continue to operate. The
End User is willing to commit the necessary resources to
arrive at a problem resolution
"SEVERITY 2" A system, network or critical application problem exists that
seriously degrades system or application operations and the
End User is willing to commit the necessary resources to
arrive at problem resolution. The problem could be
intermittent
"SEVERITY 3" The End User's system, network and applications continue to
run, and operation is not degraded, but a problem exists that
requires resolution
"SEVERITY 4" A low impact problem, or a call for information, or a
documentation call.
"RESOLUTION" means formulation and development of answers, advice, and
opinion for and of circumvention, fixes, work-around and how-
to assistance. Problems shall be considered resolved when
corrective actions resume the normal performance of a feature
or function or is mutually agreed to be a code restriction or
"working as designed" issue, and when CUSTOMER conveys
acceptance to LINUXCARE.
PAGE 4 OF 8
3 SERVICES
3.1 SERVICE SCOPE
The scope of the service includes the following:
3.1.1 SERVICE ENTITLEMENT:
The work under the SOW as specified herein will ensure that the CUSTOMER's End
User community is provided with support services for their LINUX based system.
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The services include providing answers, advice or opinions pertaining to Linux
and its run-time environment or the usage of Linux Operating System and its run-
time environment pursuant to the applicable severity level. Services exclude
consulting, project management, auditing, and any configuration assistance.
End Users or CUSTOMER's RTC support staff shall be responsible for performing
the corrective operation under LINUXCARE's guidance.??? LINUXCARE will provide
support for major Linux distributions such as Red Hat, Caldera, Debian
GNU/Linux, Laser5 Linux, Linux-Mandrake, LinuxPPC, MkLinux, Slackware Linux,
Stampede, SuSE, TurboLinux, UltraLinux, and Yellow Dog and any other derivative
of Linux.
3.1.2 SERVICE DELIVERY:
3.1.3 SUPPORT SERVICE IS DELIVERED VIA TELEPHONE OR EMAILS, RESPONSE, REPORT
AND RESOLUTION:
LINUXCARE will attend to the incident reported by CUSTOMER according to the
following criteria.
Severity Initial Response Time Resolution or Report Escalation
Level Time
(Section 2.2)
1 30 Minutes 8 Hours Same Day
2 4 Hours Within 2 Business Day 2 Business Day
3 4 Hours Within 5 Business Day 5 Business Day
4 4 Hours Within 7 Business Day 7 Business Day
3.2 SERVICE RATE AND BILLING
3.2.1 TELECOMMUNICATION COSTS
LINUXCARE will be responsible for all outbound telecommunication costs related
to the provision of services provided. CUSTOMER will be responsible for all
inbound costs to LINUXCARE which are incurred through the provisioning of
services except collect calls placed by End Users.
PAGE 5 OF 8
3.2.2 RATE AND BILLING
DESCRIPTION LIST PRICE
24x7 Telephone Based Support Requests will be billed for a minimum charge of
1/2 hour and in 15-minutes increment thereafter,
up to an hour, at the rate of $180/hour.
3.3 SERVICE REQUEST PROCEDURE
I). Initiate: CUSTOMER shall initiate the service request via telephone,
email or web forms located on CUSTOMER's web site with the following
information:
* Name and contact information.
* Description use the incident, description of the symptom and
necessary configuration information.
II). Response: LINUXCARE will respond to the routed service requests by
providing an initially email response in accordance with the time defined in
Response, Report and Resolution, (Section 3.1.3). The email response to End
Users shall indicate the CUSTOMER's email address or alias.
III). Closure: Service requests are considered closed or "resolved" in
accordance with the definition in Section 2.2.
IV): Escalation: If LINUXCARE is unable to resolve response in accordance with
the time defined in Response, Report and Resolution, (Section 3..1.3), it will
escalate to CUSTOMER.
3.4 SERVICE RESTRICTIONS
The services provided by LINUXCARE are to be used by CUSTOMER's End User
community. Accordingly, CUSTOMER shall not:
* Re-Sell LINUXCARE support packages to other third party service
providers.
* Make any additional or conflicting representations or warranties
on behalf of LINUXCARE.
* Use the trademark LINUXCARE name, logo, or the phrase "At the
Center of Linux" without prior written consent from LINUXCARE in
each case.
PAGE 6 OF 8
4 MANAGEMENT
4.1 LINUXCARE'S RESPONSIBILITY AND OBLIGATION
4.1.1 PERSONNEL
LINUXCARE shall secure all qualified personnel required to perform the Services
as defined in Section 3.1.1.
4.1.2 FAIR REPRESENTATION
LINUXCARE will represent CUSTOMER fairly and will make no representations or
guarantees concerning CUSTOMER which are false or misleading. LINUXCARE will
comply with all applicable laws and regulations in performing under this
agreement.
4.1.3 AUDIT INFORMATION
LINUXCARE shall record and maintain relevant data in accordance with Section
3.1.4?? and 3.2 and 3.3.
LINUXCARE shall make summary incident reports online available to CUSTOMER for
each incident reported to LINUXCARE by CUSTOMER. These incident reports will be
issued in English only.
4.2 CUSTOMER'S RESPONSIBILITY AND OBLIGATION
4.2.1 FORECAST AND MINIMUM SERVICE
CUSTOMER will commit a minimum of eighty-four (84) hours of support service in
the duration defined by TERM. There shall be no refund or credits from LINUXCARE
to CUSTOMER for any unused service time upon the termination of this agreement
for any reason. CUSTOMER shall provide a forecast to LINUXCARE of the estimated
service requests per months prior to commencement of each calendar quarter.
4.2.2 SERVICE REQUEST ROUTING FACILITY
CUSTOMER will provide necessary facility, including web forms, email
address/alias and call routing system, for initiating and routing service
request.
4.2.3 ESCALATION POINT OF CONTACT
CUSTOMER will provide the contact information of the engineer(s) responsible for
escalated service request to LINUXCARE. CUSTOMER will facilitate resolution
information on escalated service requests upon request from LINUXCARE.
PAGE 7 OF 8
CUSTOMER: LINUXCARE:
By: /s/ Xxxxxxx Jestron By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxxx Jestron Name: Xxxxxx X. Xxxxxxxx
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Title: Director of Purchasing Title: V.P. Sales
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PAGE 8 OF 8
