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EXHIBIT 10.32
ARISTASOFT CORPORATION PROFESSIONAL SERVICES AGREEMENT
ARISTASOFT CORPORATION
PROFESSIONAL SERVICES AGREEMENT
This PROFESSIONAL SERVICES AGREEMENT (this "AGREEMENT") is made and
entered into as of this 7th day of July, 1999 (the "EFFECTIVE DATE") by and
between; ARISTASOFT CORPORATION, a California corporation having its principal
place of business at 000 Xxxx Xx Xxxxxx Xxxx, Xxxxx 000, Xx. Xxxx, Xxxxxxxxxx
00000 ("ARISTASOFT"), and Avanex Corporation, a California Corporation having an
address at 00000 Xxxxxx Xxxxxx Xxxxxxx, XX 00000 ("CUSTOMER") with each of
ARISTASOFT and CUSTOMER being a "PARTY" and collectively, the "PARTIES").
WHEREAS, CUSTOMER desires that ARISTASOFT perform certain services and
ARISTASOFT is willing to perform such services.
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, ARISTASOFT and CUSTOMER hereby
agree as follows:
1. Services. Acting as an independent contractor, ARISTASOFT shall
perform for CUSTOMER the professional services (the "SERVICES") set forth in the
WORK PLAN (the "WORK PLAN") attached hereto as Exhibit A and incorporated herein
by reference.
2. Fees. Fees and fee payment schedules are set forth in the WORK PLAN,
and fees shall be paid by CUSTOMER to ARISTASOFT when due in accordance
therewith. Overdue fees shall be subject to a one and one half percent (1.5%)
per month finance charge plus any related collection and legal costs actually
incurred by ARISTASOFT. Fees shall be paid in U.S. dollars, and may be subject
to local, state, and federal taxes which shall be the responsibility of
CUSTOMER, except as to taxes based upon the income of ARISTASOFT.
3. Changes in Work Plan. If CUSTOMER should request any changes to the
WORK PLAN before or after ARISTASOFT begins work under such WORK PLAN, CUSTOMER
agrees that ARISTASOFT shall accordingly have the right to revise, at
ARISTASOFT'S reasonable discretion, the fee payment schedule and amount or other
items on such WORK PLAN.
4. Representations & Warranties; Limitation. Each of ARISTASOFT and
CUSTOMER represents and warrants to the other that: (i) it has all requisite
power and authority to execute and deliver this AGREEMENT and to perform its
obligations hereunder; and (ii) the execution, delivery, and performance of this
AGREEMENT shall not conflict with its charter or bylaws, or any agreement,
order, or judgment to which it is bound. ARISTASOFT warrants to CUSTOMER that
the SERVICES will be performed in a workmanlike manner. The immediately
foregoing warranty is a limited warranty and is the only warranty made by
ARISTASOFT hereunder. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
ARISTASOFT HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SERVICES,
INCLUDING WITHOUT LIMITATION ALL IMPLIED
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ARISTASOFT CORPORATION PROFESSIONAL SERVICES AGREEMENT
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NONINFRINGEMENT.
5. Confidentiality. "CONFIDENTIAL INFORMATION" means this Agreement and
all its Exhibits, any addenda hereto signed by both parties, all information,
data, drawings, benchmark tests, specifications, trade secrets and any other
proprietary information supplied to CUSTOMER by ARISTASOFT, or by CUSTOMER to
ARISTASOFT and clearly marked as "confidential information", including all items
defined as "confidential information" in any other agreement between CUSTOMER
and ARISTASOFT whether executed prior to or after the date of this Agreement.
Each Party acknowledges that the CONFIDENTIAL INFORMATION constitutes valuable
trade secrets and each Party agrees that it shall use the CONFIDENTIAL
INFORMATION of the other Party solely in accordance with the provisions of this
Agreement and will not disclose, or permit to be disclosed, the same, directly
or indirectly, to any third party without the other Party's prior written
consent. Each Party agrees to exercise due care in protecting the CONFIDENTIAL
INFORMATION from unauthorized use and disclosure. However, the foregoing
limitations do not apply to information that (i) is publicly available, (ii)
obtained by the other Party from third parties without restrictions on
disclosure, (iii) independently developed by the other Party without reference
to CONFIDENTIAL INFORMATION, or (iv) required to be disclosed by order of a
court or other governmental entity.
6. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE
HEREUNDER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL
DAMAGES OR FOR COST OF COVER ARISING HEREFROM OR RELATED HERETO IN ANY CAUSES OF
ACTION OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ARISTASOFT'S TOTAL LIABILITY TO CUSTOMER FOR ANY AND ALL CLAIMS OR DAMAGES
HEREUNDER SHALL BE LIMITED TO THE AGGREGATE AMOUNT OF FEES ACTUALLY PAID BY,
CUSTOMER TO ARISTASOFT HEREUNDER.
7. Term & Termination. The TERM hereof shall commence upon the EFFECTIVE
DATE and shall continue in full force and effect until the later of (i)
ARISTASOFT'S completion of performance of SERVICES for CUSTOMER; and (ii) all
fees that at any time become due and payable hereunder have been paid in full by
CUSTOMER. This AGREEMENT may be terminated at any time during the term hereof
at the mutual, written agreement of ARISTASOFT and CUSTOMER. In the event that
CUSTOMER or ARISTASOFT breaches any of its material obligations hereunder and
fails to cure such breach within thirty (30) days of written notice of such
breach, the other PARTY shall have the right to terminate this Agreement
unilaterally at the end of such thirty (30) day period. Upon the termination
hereof for any reason: (a) ARISTASOFT shall be relieved of its obligation to
perform any further SERVICES FOR Customer; (b) ARISTASOFT shall have the right
to retain all fees then having been paid by CUSTOMER pursuant hereto; and (c)
unless ARISTASOFT is in breach, CUSTOMER shall promptly pay to ARISTASOFT on a
pro rata basis, a reasonable fee for all work-in-progress and other SERVICES
performed by ARISTASOFT hereunder for which ARISTASOFT has not then been
compensated. The respective rights and obligations of ARISTASOFT and CUSTOMER
under the provisions of Sections 2, 4, 5, 6 and 8 and this sentence of Section 7
shall survive termination hereof.
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ARISTASOFT CORPORATION PROFESSIONAL SERVICES AGREEMENT
9. General Provisions. The sole relationship between ARISTASOFT and
CUSTOMER shall be that of independent contractors with no rights of partnership,
agency, or representation. Nothing express or implied herein shall confer upon
any third party any rights, remedies, obligations, or liabilities. This
AGREEMENT (including the SPECIFICATION, which is incorporated herein by
reference) constitutes the entire agreement between ARISTASOFT and CUSTOMER with
respect to the subject matter hereof and supersedes all prior understandings,
communications, and agreements between them, written or oral, regarding such
subject matter. References herein to "Section" are to the applicable Section
hereof Subject to the provisions of Section 3, this AGREEMENT shall not be
modified, nor shall any provision hereof be waived or amended, except by a
written amendment duly executed by ARISTASOFT and Customer. A waiver of an
provision hereof with respect to one event shall not be construed as continuing,
OR as a bar to or waiver of any right or remedy as to subsequent events. If any
provision hereof as applied to any particular facts or circumstances shall be
held to be invalid or unenforceable, then: (i) without further action by
ARISTASOFT or CUSTOMER, such provision shall be reformed to the extent,
necessary TO make such provision valid and enforceable when so applied, and (ii)
the validity and enforceability of such provision as applied to any other facts
or circumstances, and the validity and enforceability of the other provisions
hereof, shall in no way be affected or impaired thereby. This AGREEMENT shall be
construed in accordance with the laws of the State of California applicable to
contracts entered into and wholly to be performed therein, without regard to
that body of law relating to conflict of laws. Any written notices to be given
hereunder shall be delivered via U.S. Mail, express courier, confirmed
facsimile, or confirmed email, to such locations, telephone numbers, and
addresses as each of ARISTASOFT and CUSTOMER shall notify the other from time to
time. A facsimile copy hereof shall be deemed to be an original.
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ARISTASOFT CORPORATION PROFESSIONAL SERVICES AGREEMENT
IN WITNESS WHEREOF, ARISTASOFT and CUSTOMER have caused this
PROFESSIONAL SERVICES AGREEMENT to be executed as of the EFFECTIVE DATE.
ARISTASOFT CORPORATION CUSTOMER
/s/ XXXXXXX XXXXXX /s/ XXXXX XXXX
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Authorized Signature Authorized Signature
XXXXXXX XXXXXX, VICE PRESIDENT XXXXX XXXX
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Printed Name Printed Name
