1
Exhibit 10.2
SERVICES AGREEMENT
This Services Agreement ("Agreement") is made and entered into as of the
1st day of January, 2000, by and between INTELLIGROUP, INC., a New Jersey
corporation ("ITIG") and SERANOVA, INC., a New Jersey corporation ("SERANOVA").
The parties agree to be legally bound as follows:
1. SERVICES. ITIG will provide SERANOVA with various types of services
("Services") listed in Exhibit A, which is attached hereto and incorporated by
reference. Such Exhibit A may be amended from time to time by written agreement
between the parties. The Retained Employees (as defined in Section 5(a)(ii))
shall exclusively provide Services to SERANOVA and/or SERANOVA's clients as
directed by SERANOVA and pursuant to Exhibit A.
2. TERMS OF AGREEMENT. This Agreement shall become effective on January 1,
2000, (the "Effective Date"), and shall remain in full force and effect for
a period of one (1) year thereafter, unless earlier terminated pursuant to the
provisions of this Agreement. This Agreement shall automatically renew for
additional consecutive renewal terms of one (1) year unless either ITIG or
SERANOVA gives written notice of its intent not to renew the terms of this
Agreement sixty (60) days prior to the expiration of the then expiring term. The
initial one year term and any renewal period(s) thereafter shall collectively be
referred to as the "Term."
3. TERMINATION OF AGREEMENT.
(a) This Agreement or any portion thereof may be terminated by either
party, for any reason, with thirty (30) days prior written notice to
the other party.
(b) This Agreement or any portion thereof may be terminated by either
party (the "non-defaulting party") if any of the following events
occur by or with respect to the other party (the "defaulting
party"): (i) the defaulting party commits a material breach of
any of its obligations hereunder and fails to cure such breach
within thirty (30) days of receipt of written notice from
non-defaulting party; or (ii) any insolvency of the defaulting
party, any filing of a petition in bankruptcy by or against the
defaulting party, any appointment of a receiver for the
defaulting party, or any assignment for the benefit of the
defaulting party's creditors; provided, however, that in the case
of any involuntary bankruptcy proceeding such right to terminate
shall only become effective if the proceeding is not dismissed
within sixty (60) days after the filing thereof.
Termination under this Section 3 or otherwise shall have no effect on the
respective obligations to make any payment required to be made pursuant to the
terms of this Agreement or any other obligation hereunder that survives the
termination of this Agreement. Neither party shall have any liability to the
other party for terminating the Agreement pursuant to this Section 3.
4. TRANSITION ASSISTANCE. Other than for termination by SERANOVA pursuant to
Section 3(a) or by ITIG under Section 3(b)(ii), ITIG agrees to provide SERANOVA
with transition
2
assistance for up to 180 days (or such shorter period as SERANOVA may elect)
after the expiration of the Term, or upon the termination of this Agreement by
either ITIG or SERANOVA. Transition assistance shall include the following: (i)
ITIG shall reasonably cooperate with SERANOVA or any relevant third party for
transferring of the Services to SERANOVA or any such third party that SERANOVA
selects; (ii) ITIG shall perform any new types of services, at a fee agreed upon
in writing by the parties, that are reasonably required to assist in
transferring of the Services to SERANOVA or any such third party that SERANOVA
selects; (iii) ITIG shall provide to SERANOVA, upon SERANOVA's reasonable
request, any records or other information relating to said Services; and (iv)
comply with SERANOVA's reasonable requests for assistance in engaging or
training another person or persons to provide the Services rendered by ITIG. So
long as ITIG is providing SERANOVA with transition assistance, SERANOVA shall be
obligated to provide compensation to ITIG pursuant to Exhibit A.
5. INVOICING AND PAYMENTS.
(a) (i) SERANOVA shall remit payment of the monthly fee set forth
on Exhibit A to ITIG on or before the first day of each month for
the preceding month's Services. The first such payment shall
commence on the first day of the first month following the
Effective Date. Payment for any Services provided for a partial
month period preceding or following the initial payment shall be
prorated accordingly based on the number of days in a given
month. Notwithstanding any other provision of this Section 5,
ITIG shall make all payments to third parties as necessary to
ensure continued Services of the types contemplated in this
Agreement.
(ii) ITIG shall pay wages, provide benefits and make employer
contributions on behalf of the ITIG employees listed on Exhibit B,
which is attached hereto and incorporated by reference ("Retained
Employees") until each Retained Employee resigns his/her employment
with ITIG or is transferred and becomes an employee of SERANOVA (the
"Transfer Date") and SERANOVA shall reimburse ITIG for all such
wages, benefits and employer contributions paid by ITIG from the
Effective Date until the Transfer Date. ITIG's obligations to
continue to pay wages, provide benefits and make employer's
contributions shall terminate on each individual Retained Employee's
Transfer Date or upon termination or resignation of employment of
such Retained Employee. In light of SERANOVA's total control over
the terms and conditions of such Retained Employees, SERANOVA
retains the right to request the termination of any Retained
Employee when necessary and appropriate. All amounts payable to any
Retained Employee terminates under this Section 5(a)(ii) by virtue
of such termination, including but not limited to severance pay,
accrued wages, accrued vacation or leave pay, shall be reimbursed to
ITIG by SERANOVA. Such Exhibit B may be amended from time to time.
-2-
3
(b) SERANOVA agrees to pay amounts equal to any Federal, state or
local sales, use, excise, privilege or other taxes or
assessments, however designated or levied, relating to any
amounts payable by SERANOVA to ITIG hereunder, this Agreement or
any Services provided by ITIG to SERANOVA pursuant hereto and any
taxes or amounts in lieu thereof paid or payable by ITIG,
exclusive of taxes based on ITIG's net income for the Services or
for any employees, agents or subcontractor of ITIG. ITIG will
invoice SERANOVA for any taxes payable by SERANOVA that are
required to be collected by ITIG pursuant to any applicable law,
rule, regulation or other requirement of law.
6. OBLIGATIONS.
(a) Certain Information. SERANOVA shall provide to ITIG any
information needed by ITIG to perform the Services. If the
failure to provide such information renders the performance of
any requested Services impossible or unreasonably difficult, ITIG
may upon reasonable prior written notice to SERANOVA and without
incurring any liability refuse to provide such Services until
such time as SERANOVA has provided ITIG with the requisite
information.
(b) Further Assurances. During the term of this Agreement, ITIG and
SERANOVA shall use commercially reasonable efforts to: (i)
preserve their respective and mutual reputations and market
positions in strategic markets; (ii) promote their mutual
businesses and cause the retention and expansion of their
customers; (iii) refrain from taking any action which may
jeopardize any such customer relationship without the prior
written consent of the other party; and (iv) execute and deliver
any further legal instruments which may become necessary to
effect the purposes of this Agreement.
(c) Scope of Services. If ITIG and SERANOVA agree that it is
functionally impossible to continue to provide a Service under
this Agreement, or otherwise agree to eliminate or reduce one or
more Services provided hereunder, then ITIG shall discontinue
said Service at the time and in the manner agreed to by the
parties. In the event ITIG discontinues a Service provided
hereunder, SERANOVA's Service fee shall be prorated based on a
reasonable allocation of the costs as mutually agreed by the
parties. In the event that SERANOVA requires a reasonable
increase of the Services, ITIG shall increase the amount of
Services accordingly. The parties agree to negotiate in good
faith relating to ITIG's rendering of increased services to
SERANOVA and if the parties cannot agree on a price, ITIG has no
obligation to perform such increased services.
7. OWNERSHIP. All deliverables generated pursuant to the Services as set forth
in Exhibit A ("Work Product") shall be deemed works made for hire under the
applicable copyright laws, and that all Work Product shall be the sole and
exclusive property of SERANOVA. To the extent that any Work Product is not
considered a work for hire under the applicable copyright laws, ITIG hereby
assigns all of its rights, title or interest in the Work Product and in all
related
-3-
4
patents, copyrights, trademarks, trade secrets, rights of priority and other
proprietary rights to SERANOVA. ITIG shall make full disclosure to SERANOVA of
all such Work Product, and reasonably assist and cooperate with SERANOVA, at
SERANOVA's expense, in all respects and will execute documents, give testimony,
and take all further acts requested by SERANOVA to obtain, maintain, perfect and
enforce for SERANOVA patent, copyright, trademark, trade secret or other legal
protection for the Work Product, as well as all reissues, renewals and
extensions thereof.
8. SUBCONTRACTING SERVICES. ITIG may, with the consent or approval of
SERANOVA, subcontract certain Services, in whole or in part, provided to
SERANOVA pursuant to this Agreement. To the extent that ITIG subcontracts
certain or all Services, ITIG shall remain solely responsible to SERANOVA for
the execution and quality of said Services.
9. RECORD KEEPING.
(a) Processing. Upon ten (10) days prior written notice from
SERANOVA, ITIG shall provide SERANOVA and/or its representatives
or any regulatory agency having jurisdiction reasonable access
during normal business hours to ITIG's facilities for the purpose
of performing audits or inspections of the business of ITIG
relating to the Services. ITIG shall provide any reasonable
assistance as may be required by SERANOVA and/or its
representatives or any regulatory agency having jurisdiction.
ITIG shall not be required to provide SERANOVA and/or its
representatives or any regulatory agency having jurisdiction
access to ITIG's data of ITIG's customer's data other than
SERANOVA. If any audit by an auditor designated by SERANOVA or
any regulatory agency having jurisdiction finds ITIG not in
compliance with any audit requirement relating to the Services,
ITIG shall meet with SERANOVA and the parties will agree on what
actions ITIG must take to be in compliance with the audit
requirements. SERANOVA shall be responsible for the cost of such
audit.
(b) Charges. Upon ten (10) days prior written notice from SERANOVA,
ITIG shall provide SERANOVA and/or its representatives reasonable
access during normal business hours to ITIG's facilities for the
purpose of performing audits or inspections to verify the
accuracy of the amounts charged by ITIG to SERANOVA for the
Services. If, as a result of such audit, it is determined that
ITIG has overcharged SERANOVA, SERANOVA shall notify ITIG of the
amount of such overcharge and ITIG shall promptly pay to SERANOVA
the amount of the overcharge, plus interest of one percent (1%)
per month, but in no event to exceed the highest lawful rate of
interest, calculated from the date of receipt by ITIG of the
overcharged amount until the date of payment to SERANOVA. In
addition, in the event any such audit reveals an overcharge to
SERANOVA by ITIG of five percent (5%) or more, ITIG shall
reimburse SERANOVA for cost of such audit.
-4-
5
10. WARRANTY.
(a) ITIG represents and warrants that during the performance of and
for a period of sixty (60) days after performance, the Services
will be provided in a professional and workmanlike manner in
accordance with industry standards and the Services will
materially conform to Exhibit A. In the event the Service fails
to conform to the foregoing warranties in any material respect,
the sole and exclusive remedy of SERANOVA, and ITIG's liability,
as a result thereof will be for ITIG, at its expense, to use its
commercially reasonable efforts to cure or correct such failure
as soon as reasonably practical or refund any monies paid by
SERANOVA to ITIG for the nonconforming portion of the Services.
(b) ITIG represents and warrants that to its knowledge, the rendering of
Services will not infringe on any US patents, copyrights or
trademarks.
(c) Each party represents and warrants that it shall comply with all
applicable federal, state and local laws and regulations applicable
to the Services and shall obtain all applicable permits,
registrations and licenses required of it in connection with its
obligations under this Agreement.
(d) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ITIG DOES NOT MAKE
ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER SUCH WARRANTY BE
EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY FROM COURSE OF
DEALING OR USAGE OF TRADE.
11. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY FOR ANY SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, WITHOUT
LIMITATION, LOST REVENUES, PROFITS, SAVINGS OR BUSINESS), WHETHER IN AN ACTION
BASED ON CONTRACT, WARRANTY, STRICT LIABILITY, TORT (INCLUDING, WITHOUT
LIMITATION, NEGLIGENCE) OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN INFORMED IN
ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN
REASONABLY FORESEEN BY SUCH PARTY. In no event shall either party's aggregate
liability to the other party exceed the total fees paid by SERANOVA to ITIG for
the twelve (12) month period immediately preceding the event that gave rise to
the liability, whether such liability is based on an action in contract,
warranty, strict liability or tort (including, without limitation, negligence)
or otherwise. Each party's entire liability under this Agreement shall be as set
out in this Section 11. The parties have agreed that the limitations specified
in this Section 11 will survive and apply even if any limited remedy specified
in this Agreement is found to have failed of its essential purpose.
-5-
6
12. INDEMNIFICATION.
(a) Indemnity by SERANOVA. SERANOVA shall indemnify ITIG from and defend
ITIG against, any liability or expenses (including reasonable
attorneys' fees) arising out of or relating to any claim, loss,
damage, cost, liability, or expense ("Claim"):
1. Relating to the employment or termination thereof of any Retained
Employee;
2. Relating to (a) a violation of Federal, state, or other laws
(including common law) or regulations, including but not
limited to a violation of Federal, state, or other laws
(including common law) or regulations for the protection of
persons or members of a protected class or category of persons
by SERANOVA, its employees, or agents, (b) sexual
discrimination or harassment by SERANOVA, its employees, or
agents, and (c) work-related injury except as maybe covered by
SERANOVA's worker's compensation or death caused by SERANOVA,
its employees, or agents;
3. Relating to amounts, including taxes, interest, and penalties,
assessed against ITIG which are the obligations of SERANOVA
pursuant to Section 5(b); and
4. To the extent directly related to personal injury or tangible
personal property, damage resulting from any Retained Employee's
(prior to such Retained Employee's Transfer Date but after
SERANOVA becomes a publicly held entity) and SERANOVA's negligent
acts or omissions.
(b) Indemnity by ITIG. ITIG shall indemnify SERANOVA from and defend
SERANOVA against, any liability or expenses (including reasonable
attorneys' fees) arising out of or relating to any Claim:
1. Relating to (a) a violation of Federal, state, or other laws
(including common law) or regulations, including but not limited
to a violation of Federal, state, or other laws or regulations
for the protection of persons or members of a protected class or
category of persons by ITIG, its employees, or agents, (b) sexual
discrimination or harassment by ITIG, its employees, or agents,
and (c ) work-related injury except as may be covered by ITIG's
worker's compensation or death caused by ITIG, its employees, or
agents;
2. Relating to amounts, including taxes, interest, and penalties,
assessed against SERANOVA which are the obligations of ITIG
pursuant to Section 5(b);
3. Relating to ITIG's non-compliance with legal or regulatory
requirements applicable to ITIG; and
4. To the extent directly related to personal injury or tangible
personal property damage resulting from ITIG's negligent acts or
omissions excluding the acts or omissions of any Retained
Employees (prior to such Retained Employee's Transfer Date but
after SERANOVA becomes a publicly held entity).
(c) The party seeking indemnification under any provision of this
Agreement shall promptly notify the party against whom the
indemnification is sought in writing of any claim for
indemnification, specifying in detail the basis of such claim,
the
-6-
7
facts pertaining thereto and, if known, the amount, or an estimate
of the amount, of the liability arising therefrom; provided however,
that failure to give such notice shall not affect the
indemnification provided hereunder except to the extent that the
indemnifying party can demonstrate actual monetary prejudice as a
direct result of such failure. The indemnified party shall provide
to the indemnifying party as promptly as practicable thereafter all
information and documentation necessary to support and verify the
claim asserted and the indemnifying party shall be given reasonable
access to all books and records in the possession or control of the
indemnified party or any of its affiliates which the indemnifying
party reasonably determines to be related to such claim.
(d) The indemnifying party shall have sole control over the defense
and/or settlement of any claim and the indemnified party will, at
the indemnifying party's sole expense, provide reasonable
assistance to the indemnifying party. If the indemnified party
takes any overt action that unreasonably compromises the
indemnifying party's defense or settlement of any claim, the
indemnifying party shall be relieved of its indemnification
obligations for such particular claim.
13. PARTIES' RELATIONSHIP.
(a) Independent. The parties are independent entities with each
having sole authority and control of the manner of, and is
responsible for, its performance of this Agreement. This
Agreement does not create or evidence a partnership or joint
venture between the parties. Neither party has the right or
authority to enter into any contract, warranty, guaranty or other
undertaking in the name or for the account of the other party, or
to assume or create any obligation or liability of any kind,
express or implied, on behalf of the other party, or to bind the
other party in any manner whatsoever, or to hold itself out as
having any right, power or authority to create any such
obligation or liability on behalf of the other or to bind the
other party in any manner whatsoever (except as otherwise
provided by this Agreement or as to any other actions taken by
either party at the express written request and direction of the
other party).
b) Employees. Except as otherwise described herein, for the purposes of
this Agreement each party is solely responsible for its own
employees or agents, including the actions or omissions and the
payment of compensation, taxes and benefits of those employees and
agents.
(c) Access. To the extent reasonably required for SERANOVA's
personnel to perform their job functions, ITIG shall provide
SERANOVA's personnel with reasonable access to its equipment,
office facilities and any other areas and equipment for which
SERANOVA has provided compensation to ITIG under the terms of
this Agreement. In addition, the employees of SERANOVA shall
have reasonable access to those employees of ITIG who perform any
of the Services.
-7-
8
(d) Non Solicitation. During the Term hereof and for a period of twelve
(12) months thereafter, neither party shall, directly or indirectly,
solicit for employment or employ, or accept services provided by,
any employee, officer or independent contractor of the other party
who performed any work in connection with or related to the Services
without the prior written consent of the other party and such
consent shall not be unreasonably withheld.
14. DISPUTE RESOLUTION PROCEDURE. Except as otherwise stated in this
Agreement, the parties shall resolve all disputes in accordance with the
following procedure:
(a) Each party shall promptly negotiate in good faith to resolve all
disputes, controversies or claims arising out of or relating to
this Agreement or the performance hereunder (a "Dispute"). In
the event that the parties cannot resolve the Dispute in such
manner, they shall immediately refer the Dispute to each party's
CFO or such other senior executives as may be mutually agreed
upon by the parties from time to time. If such executives do not
agree upon a decision within a reasonable amount of time after
referral of the Dispute to them (but in no event more than thirty
(30) days from the date the party that determines there is a
Dispute becomes aware of such dispute) they shall submit the
Dispute to the following binding arbitration procedures:
1. Any Dispute shall be submitted to binding arbitration, in
accordance with the dispute resolution procedures specified in this
Section 14. If any of these procedures are determined to be invalid
or unenforceable, the remaining procedures shall remain in effect
and binding on the parties to the fullest extent permitted by law.
2. The arbitration shall be conducted in accordance with the
procedures specified in this Section 14 and the Arbitration Rules
for Professional Accounting and Related Services Disputes of the AAA
("AAA Rules"). In the event of a conflict, the provisions of this
Section 14 shall control. The arbitration shall be conducted before
a panel of three arbitrators, regardless of the size of the Dispute,
to be selected as provided in the AAA Rules.
3. Any issue concerning the extent to which any Dispute is subject
to arbitration, or concerning the applicability, interpretation, or
enforceability of these procedures, including any contention that
all or part of these procedures are invalid or unenforceable, shall
be governed by the Federal Arbitration Act and resolved by the
arbitrators. No potential arbitrator may serve on the panel unless
first agreeing in writing to abide and be bound by these procedures.
The arbitrators may not award non-monetary or equitable relief of
any sort. They shall have no power to award damages inconsistent
with the Agreement or punitive damages or any other damages not
measured by the prevailing party's actual damages, and the parties
expressly waive their right to obtain such damages in arbitration or
in any other forum. In no event, even if any other portion of these
procedures is adjudged invalid or unenforceable, shall the
arbitrators have power
-8-
9
to make an award or impose a remedy that could not be made or
imposed by a court deciding the matter in the same jurisdiction.
4. No discovery shall be permitted in connection with the
arbitration unless expressly authorized by the arbitration panel
upon a showing of substantial need by the party seeking discovery.
All aspects of the arbitration shall be treated as confidential.
Neither the parties nor the arbitrators may disclose the existence,
content or results of the arbitration, except as necessary to comply
with legal or regulatory requirements. Before making any such
disclosure, a party shall give written notice to all other parties
and afford such parties a reasonable opportunity to protect their
interest. The result of the arbitration shall be a final decision
that is binding on the parties, and judgment on the arbitrators'
award may be entered in any court having jurisdiction.
15. CONFIDENTIALITY.
(a) SERANOVA and ITIG shall each (i) hold the Confidential
Information (as defined below) of the other in trust and
confidence and avoid the disclosure or release thereof to any
other person or entity by using the same degree of care as it
uses to avoid unauthorized use, disclosure, or dissemination of
its own Confidential Information of a similar nature, but not
less than reasonable care, and (ii) not use the Confidential
Information of the other party for any purpose whatsoever except
as expressly contemplated under this Agreement. Each party shall
disclose the Confidential Information of the other only to those
of its employees having a need to know such Confidential
Information and shall take all reasonable precautions to ensure
that its employees comply with the provisions of this Section 15.
(b) The term "Confidential Information" shall mean any and all
information or proprietary materials (in every form and media)
not generally known in the relevant trade or industry and which
has been or is hereafter disclosed or made available by either
party (the "disclosing party") to the other (the "receiving
party") in connection with the efforts contemplated hereunder,
including (i) all trade secrets, (ii) existing or contemplated
products, services, designs, technology, processes, technical
data, engineering, techniques, methodologies and concepts and any
information related thereto, and (iii) information relating to
business plans, sales or marketing methods and customer lists or
requirements.
(c) The obligations of either party under this Section 15 will not
apply to information that the receiving party can demonstrate (i)
was in its possession at the time of disclosure and without
restriction as to confidentiality, (ii) at the time of disclosure
is generally available to the public or after disclosure becomes
generally available to the public through no breach of agreement
or other
-9-
10
wrongful act by the receiving party, (iii) has been received from a
third party without restriction on disclosure and without breach of
agreement or other wrongful act by the receiving party, (iv) is
independently developed by the receiving party without regard to the
Confidential Information of the other party, or (v) is required to
be disclosed by law or order of a court of competent jurisdiction or
regulatory authority, provided that the receiving party shall
furnish prompt written notice of such required disclosure and
reasonably cooperate with the disclosing party, at the disclosing
party's cost and expense, in any effort made by the disclosing party
to seek a protective order or other appropriate protection of its
Confidential Information.
16. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned by either party hereto
without the prior written consent of the other party except ITIG may, upon prior
written notice to SERANOVA (but without any obligation to obtain the consent of
SERANOVA), assign this Agreement or any of its rights hereunder to any affiliate
of ITIG, or to any entity who succeeds (by purchase, merger, operation of law or
otherwise) to all or substantially all of the capital stock, assets or business
of ITIG, if such entity agrees in writing to assume and be bound by all of the
obligations of ITIG under this Agreement.
17. NO THIRD-PARTY BENEFICIARIES. Nothing expressed or implied in this
Agreement shall be construed to give any person or entity other than the parties
any legal or equitable rights under this Agreement.
18. WAIVERS. No term or provision hereof shall be deemed waived and no breach
excused unless such waiver or consent shall be in writing and signed by an
authorized representative of the party claiming to have waived or consented. No
consent by either party to, or waiver of, a breach by the other, whether express
or implied, shall constitute a consent to, waiver of, or excuse for any
different or subsequent breach.
19. NOTICES. All notices given in connection with this Agreement shall be in
writing and transmitted by (i) hand delivery; (ii) courier delivery; (iii) U.S.
certified mail, return receipt requested, postage prepaid; or (iv) telecopier to
the addressed listed below. Delivery of said notices shall be deemed given upon
the date of (a) receipt of courier delivery; (b) certified mail return receipt
is signed or delivery is rejected; or (c) receipt of written confirmation of
telecopier transmittal.
If to ITIG: Intelligroup, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: President
Fax No.: (000) 000-0000
If to SERANOVA: SeraNova, Inc.
000 Xxxxxxxx Xxxxxx
-10-
11
Edison, New Jersey 08837
Attn: President
Fax No.: (000) 000-0000
20. FORCE MAJEURE. No delay or failure of a party to perform any of its
obligations, other than payment obligations, under this Agreement due to causes
beyond its reasonable control shall constitute a breach of this Agreement or
render that party liable for that delay or failure. Causes beyond a party's
reasonable control include, but are not limited to: (i) events or circumstances
that the party, even though using all, reasonable efforts, is unable to prevent
or overcome; or (ii) labor disputes, strikes, or other similar disturbances,
acts of God, utilities or communications failures, acts of the public enemy,
riots, insurrections, sabotage or vandalism.
21. SEVERABILITY. The invalidity, illegality or unenforceability of any
provision in this Agreement shall not in any way affect the validity, legality
or enforceability of any other provision of this Agreement. This Agreement shall
be reformed and construed in all respects as if such invalid or unenforceable
provision had never been in the Agreement and such provision shall be reformed
so that it will be valid, legal and enforceable to the extent possible.
22. GOVERNING LAW, VENUE AND JURISDICTION. This Agreement shall be construed
in accordance with and governed by the laws of the State of New Jersey, without
regard to its conflict of laws principles. Subject to Section 14, the parties
consent to jurisdiction and venue in the state courts of Middlesex County, New
Jersey, or if there is exclusive federal jurisdiction, the U.S. District Court
for the District of New Jersey, shall have exclusive jurisdiction and venue over
any dispute arising out of this Agreement.
23. HEADINGS. Headings in this Agreement are included for convenience of
reference only and do not constitute a part of this Agreement for any other
purpose.
24. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
between the parties with respect to the subject matter contained herein and
supersedes all prior communications, representations and agreements. It shall
not be varied except by a modification in writing which is duly executed by
authorized representatives of the parties subsequent to the date first appearing
herein
25. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and of equal force and effect.
26. INSURANCE. ITIG and SERANOVA (after SERANOVA becomes a publicly held
entity) agree to maintain insurance in accordance with the following:
- Workers Compensation & Employer's Liability:
As required under the law of the state in which the work is
performed with each party's liability limit not less than $500,000
per occurrence/annual aggregate.
- Commercial General Liability:
Covering all operations of each party including product and
completed operations
-11-
12
and contractual liability against claims for personal bodily injury
and property damage with a liability limit not less than $1,000,000
per occurrence/annual aggregate.
- Errors & Omission Insurance:
Covering loss or damage arising out of negligent acts or errors or
omissions which arise from professional Services provided by ITIG
under this Agreement and any services provided by SERANOVA (using
the Retained Employees after SERANOVA becomes a publicly held entity
but prior to such employee's Transfer Date) with limits no less than
$1,000,000 per occurrence.
Such insurance coverage as is required under this Agreement shall be in
form and with insurance carriers licensed to do business in the state
where the services are provided, unless otherwise provided herein. As
evidence of said coverage, ITIG shall forward Certificates of Insurance,
or copies of insurance policies, to SERANOVA, which shall contain a
provision to endeavor to notify SERANOVA in writing of a cancellation or
nonrenewal of said coverages not less than thirty (30) days before its
effective date. The foregoing statements as to the types and limits of
insurance coverage to be maintained by ITIG, is not intended to and shall
not in any manner limit or qualify the liabilities and obligations
otherwise assumed by ITIG pursuant to this Agreement, including but not
limited to the provisions concerning indemnification.
27. PUBLICITY. Neither party shall use the name of the other party in any
materials, statements or press releases without the prior written consent of the
other party.
IN WITNESS WHEREOF, this Agreement has been executed effective as of the
date first above written.
WITNESSES INTELLIGROUP, INC.
_____________________________
/s/ Xxxxx Xxxxxx
_____________________________ BY: ________________________________
Xxxxx Xxxxxx, Co-Chief
Executive Officer
SERANOVA, INC.
_____________________________
/s/ Xxx Xxxxxx
_____________________________ By: ________________________________
Xxx Xxxxxx, CEO
-12-
13
EXHIBIT A
DESCRIPTION OF SUPPORT SERVICES AND APPLICABLE FEES
INFORMATION SYSTEMS & SUPPORT
Monthly Access and Support Fee for SAP system:
- Fixed charge of $5,500 per month;
- Includes application support and consultation;
- Does not include enhancement or modification of the underlying software or
configuration, except as needed to correct for system malfunction or
programming "bugs".
PC Applications and Hardware Support Services/Procurement:
- Fixed monthly charge of $11,000 per month;
- Support for desktop systems and network management applications for
Edison, N.J. location
- Ordering, receiving and configuring of new PC's and Laptops as needed
(exclusive of actual cost of hardware and software components).
- Continued access and support for Lotus Notes e-mail system currently
installed;
- Additional charges may be invoiced for the actual cost incurred to extend
or add user licenses should these be required (based upon increases in
registered users over baseline number, determined as of December 31,
1999).
The parties acknowledge that Intelligroup has entered into contractual
relationships with various software vendors for use of the software.
Intelligroup will permit SeraNova a right to use the software or provide
services to SeraNova to the extent Intelligroup is permitted under its
applicable agreements with the software vendors. SeraNova will take all
reasonable actions requested by Intelligroup, so that SeraNova may use the
software or receive services from Intelligroup. Upon SeraNova becoming a
publicly held entity, SeraNova, at its sole cost and expense, may have to enter
into separate agreements with such software vendors and may no longer have the
right to use the software or receive services from Intelligroup.
GENERAL ADMINISTRATIVE SUPPORT
Mail Delivery & Facilities Management
- Fixed charge of $5,000 per month, adjustable upon mutual agreement to
reflect changes in usage or underlying costs to Intelligroup;
- Monthly charge includes handling and distribution of mail and other
deliveries, incidental office supplies, copy machine usage, and general
facilities management;
- Additional charges will be invoiced for actual costs of "expressmails"
(including but not limited to Federal Express, U.S. Postal Service Exerts
Mail, Airborne Express);
- Additional charge of $1,000 per month for postage, adjustable upon mutual
agreement to reflect changes in usage or underlying costs to Intelligroup;
Receptionist
- Fixed charge of $1,700 per month.
14
Human Resources
- Fixed charge of $4,000 per month, adjustable upon mutual agreement to
reflect changes in underlying employee mix;
- Administrative support related to 401(k) Plans, applicable medical benefit
plans, employee manual;
- Employee orientation and hiring support will be invoiced at a rate of $100
per new "in-house" employee hired (covers such incidentals as key cards,
name plates, etc
Billing Support
- Fixed monthly charge of $2,000;
- Provides assistance with setting up and transferring A/R, and Billing
functions from Intelligroup;
- Covers the cost of continued invoice processing by Intelligroup required
to clear historical amounts.
Payroll Support
- Fixed charge of $2,000 per month for the months of January through March,
2000; then at a rate of $500 per month thereafter;
- Provides administrative and processing assistance for the months of
January through March, 2000, including assistance with quarterly tax
reporting;
- Also provides for on-going advisory support in connection with payroll
processing;
- External charges (such as Ceridian Payroll Service) are to be directly
billed to SeraNova.
Immigration
- Per case charge of $100 to cover administrative costs and access to
Immigration Staff;
- All external charges, including but not limited to legal (Fragomen) and
I.N.S. fees are to be directly billed to SeraNova.
Other Support and Administrative Costs
The above assumes that certain external costs will be directly invoiced to
SeraNova. In the event that any such costs, directly attributable to SeraNova,
are invoiced by a third party to Intelligroup, these will be recoverable by
Intelligroup upon presentment of such costs to SeraNova in the form of an
invoice or other written request for payment (which will detail the costs and
purposes for such costs).
Certain other costs may be incurred by Intelligroup on behalf of both parties,
which may include but are not be limited to (i) cost of general liability,
property and casualty, and other business insurance coverages (prior to SeraNova
becoming a publicly held entity); and (ii) costs of outside retained recruiting
firms. Intelligroup may recover a proportionate share of such costs from
SeraNova upon presentment to SeraNova in the form of an invoice or other written
request for payment (which will detail the costs and purposes for such costs).
Such proportion will be determined by mutual agreement of the parties.
15
INTELLIGROUP MONTHLY BILLING SCHEDULE FOR 2000
FOR CHARGES UNDER EXHIBIT A OF THE SERVICES
AGREEMENT
Jan-00 Feb-00 Mar-00 Apr-00 May-00 Jun-00 Jul-00 Aug-00 Sep-00
------- ------- ------- ------- ------- ------- ------- ------- -------
Monthly Fixed Charges
Information Systems and Support
SAP systems access and support $ 5,500 $ 5,500 $ 5,500 $ 5,500 $ 5,500 $ 5,500 $ 5,500 $ 5,500 $ 5,500
PC applications and H/W support $11,000 $11,000 $11,000 $11,000 $11,000 $11,000 $11,000 $11,000 $11,000
General Administrative Support
Mail room and facilities $ 3,000 $ 3,000 $ 3,000 $ 3,000 $ 3,000 $ 3,000 $ 3,000 $ 3,000 $ 3,000
Postage $ 1,000 $ 1,000 $ 1,000 $ 1,000 $ 1,000 $ 1,000 $ 1,000 $ 1,000 $ 1,000
Receptionist $ 1,700 $ 1,700 $ 1,700 $ 1,700 $ 1,700 $ 1,700 $ 1,700 $ 1,700 $ 1,700
H/R support $ 3,500 $ 3,500 $ 3,500 $ 3,500 $ 3,500 $ 3,500 $ 3,500 $ 3,500 $ 3,500
Billing support $ 1,000 $ 1,000 $ 1,000 $ 1,000 $ 1,000 $ 1,000 $ 1,000 $ 1,000 $ 1,000
Payroll support $ 1,500 $ 1,500 $ 1,500 $ 500 $ 500 $ 500 $ 500 $ 500 $ 500
------- ------- ------- ------- ------- ------- ------- ------- -------
Total Fixed Charges for Services $28,200 $28,200 $28,200 $27,200 $27,200 $27,200 $27,200 $27,200 $27,200
======= ======= ======= ======= ======= ======= ======= ======= =======
Oct-00 Nov-00 Dec-00
------- ------- -------
Monthly Fixed Charges
Information Systems and Support
SAP systems access and support $ 5,500 $ 5,500 $ 5,500
PC applications and H/W support $11,000 $11,000 $11,000
General Administrative Support
Mail room and facilities $ 3,000 $ 3,000 $ 3,000
Postage $ 1,000 $ 1,000 $ 1,000
Receptionist $ 1,700 $ 1,700 $ 1,700
H/R support $ 3,500 $ 3,500 $ 3,500
Billing support $ 1,000 $ 1,000 $ 1,000
Payroll support $ 500 $ 500 $ 500
------- ------- -------
Total Fixed Charges for Services $27,200 $27,200 $27,200
======= ======= =======
Variable ("Per drink") charges
H/R support - $100 per new
in-house hire
Immigration support - $100 per
case
INTELLIGROUP MONTHLY BILLING SCHEDULE
FOR RENT AND UTILITIES CHARGES UNDER THE SPACE
SHARING AGREEMENT
Jan-00 Feb-00 Mar-00 Apr-00 May-00 Jun-00 Jul-00 Aug-00 Sep-00 Oct-00 Nov-00 Dec-00
16
EXHIBIT B
RETAINED EMPLOYEES
NAME ID#
---- ---
Xxxxxx, Xxxx # 2280
Xxxxxxxxxxxx, Xxxxxxx # 2036
Xxxxxx, Xxxxxxxxx # 000
Xxxxxxxx, Xxxxxxxxxxx # 0000
Xxxxxx, Xxxxxxxxxxxx # 0000
Xxxxx, Xxxxxxx # 0000
Xxxxxxxxxx, Mahesh # 606
Xxxxx, Xxxxxxxxxx # 000
Xxxx, Xxxxxx # 0000
Xxxxx, Xxxx # 000
Xxxxxx, Xxxxxxxxxxx # 0000
Xxxxxxxxxx, Xxxx Xxxxxx # 000
Xxxxxx, Xxxxxx # 000
Xxxxxx, Xxxxxx # 1847
Kelwalkar, Xxxx Xxxxxxxxxxx # 1931
Xxxxxxx, Xxxxxx # 1635
Xxxxxxxxxx, Xxxxxxxxx # 808
Xxxxxx, Xxxxx # 628
Xxxxxxxx, Xxxxxxxxx X. # 2155
Xxxxx, Xxxxxx # 2128
Xxxxx, Xxx # 000
Xxxxxxxxxxx, Xxxxxxxxxx # 0000
Xxxxx , Xxxxxxx # 000
Xxxxxxx, Xxxxxxxx # 000
Xxxxxxxxx, Xxxxxxxx # 684
Xxxxxx, Xxxxxxx # 1932
Xxxxxxxx, Xxxx # 348
Mopati, Krishna # 369
Xxxxxxx, Xxxxxxxxx # 1522
Xxxxxx, Xxxxxxxxx # 0000
Xxxxxxxx, Xxxxx # 0000
Xxxx, Xxxxx # 000
Xxxxxxxxxxx, Xxxxxx # 000
Xxxxx, Xxxxxxx # 0000
Xxxxxxxxx, Xxxxxxxxxxxx # 228
Nath, Mohan # 706
Padmala, Xxxxxxxx Xxx # 1816
Xxxxxx, Xxxxxxxx # 0000
Xxxxxx, Xxxxxx # 0000
Xxxxxxxx, Xxxxx # 1509
Prasani, Vineet Rayroth # 000
Xxxxxxxxx, Xxxxx # 000
Xxxxxxxxxxxx, Xxxxxxx # 0000
Xxxxxxxxx, Xxxxxxx # 0000
Xxx, Xxxxxxxxxx # 1859
Xxx, Xxxxxxxx # 1813
Xxxxx, Xxxxxxxxx # 97
Xxxxx, Xxxxxx # 2290
Xxx, Xxxxx # 1596
Sahoo, Xxxx Xxxxxxx # 1877
Sahu, Xxxxxxxx Xxxxx # 0000
Xxxxxx, Xxxxxx # 000
Xxxxx, Xxxxxx # 1592
Xxxxxxxxx, Xxxxxx # 1846
Xxxxx, Xxxxxxxx # 708
Xxxxxxxxxx, Xxxxxx # 0000
Xxxxxxxxxx, Xxxxxxx # 000
Xxxx, Xxxxxxxxxx # 2023
Xxxxxx, Xxxxxxxx # 638
Xxxxxxx, Xxxxxx # 1710
Xxxxxxxxxxx, Xxxxxxx # 1963
Xxxxxxxx, Xxxxxx # 725
Xxxx, Xxxxxxx # 181
Xxxxxxxx , Xxxxxxx # 1927
Xxxxxx, Xxxxxxxxx not assigned
Xxxxxxxxxx, Xxxxxx not assigned
Aruminathan, Xxxxxxx S not assigned
Sharan, Jaya not assigned
