Exhibit 10.20
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SERVICES AGREEMENT
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THIS SERVICES AGREEMENT dated as of November 1, 1996 is made between
Banyan Systems Incorporated ("Banyan"), a Massachusetts corporation, and
Switchboard Incorporated ("Switchboard"), a Delaware corporation.
RECITALS
WHEREAS, Banyan has caused the formation of Switchboard and transferred certain
business assets to Switchboard; and,
WHEREAS, Banyan wishes to provide Switchboard with certain services and
Switchboard wishes to purchase certain services from Banyan; and,
WHEREAS, Banyan and Switchboard desire to make provisions for certain ongoing
relationships between them.
NOW, THEREFORE, in consideration of the foregoing premises, and the mutual
promises of the parties hereinafter set forth, Banyan and Switchboard agree as
follows:
SECTION 1. CERTAIN MANAGEMENT-RELATED SERVICES
Commencing on (the "Commencement Date" of this agreement) and until
termination of this agreement in accordance within section 4 hereof, Banyan
agrees to make available to Switchboard, subject to the terms hereof, the
following services:
1.1 Basic Services. In exchange for a fixed monthly charge (see
attached), Banyan shall provide the following routine, basic, regularly
recurring services ("Basic Services").
1.1.1 Banyan's finance/accounting staff for accounting and bookkeeping
advice and routine monthly or periodic services, including without limitation,
bookkeeping, disbursements and general ledger processing, preparation of monthly
management financial statements and quarterly and annual external financial
statements, and preparation for the annual audit by independent accounts;
1.1.2 Banyan's Human Resources staff for advice and routine services
regarding recruitment and retention of personnel, and administration of employee
benefit programs;
1.1.3 Banyan's payroll staff for advice and routine services concerning
payroll processing and distribution;
1.1.4 Banyan's treasury staff of advice and routine services concerning
treasury fund management, cash transfers, investing, insurance services, and tax
services.
1.1.5 Banyan's IS staff and facilities for routine monthly data processing
services including program and file maintenance and back-ups, user training, and
support and equipment maintenance, telephones, but not including program,
systems development or data communications related to operating
Switchboard(R)(C)(TM); and
1.1.6 Other members of Banyan's staff to provide routine services in such
areas as reception and security, facility services, purchasing of supplies and
materials and any other routine support services. Facilities charges include
depreciation of furniture and fixtures, rent, utilities and maintenance.
Any one or more Basic Service may be terminated by Switchboard on sixty
(60) days written notice to Banyan. Upon such termination an adjustment shall
be made in the fixed monthly charge payable to Banyan in an amount mutually
agreeable to the parties.
1.2 Charged Services. Banyan shall provide, upon request from
Switchboard, certain services (other than Basic services) for which Switchboard
shall pay Banyan a fixed rate based on the hours spent by the Banyan employee on
such task ("Charged Services"). The fixed rate shall be based on Banyan's
direct labor costs with regard to such employee, including all fringe benefits,
and shall be increased by such employee's pro-rata share of related overhead
costs, facility costs and data processing, and other support costs. Charged
services shall include, but shall not be limited to, (1) services provided
regarding the development of data processing systems and programs, (2) services
regarding legal matters and patent filings and prosecution, (3) support for
raising additional capital and for acquisitions, (4) general and executive
management services, and (5) support for Contract bidding and other proposals.
1.3 Requisitioned Purchases. In the course of Banyan's provision of the
Basic Services or Charged Services or otherwise. Switchboard may requisition
and Banyan may arrange for the purchase of services or products from third
parties, which are billed directly to Banyan ("Requisitioned Purchases").
Switchboard shall reimburse Banyan for the full billed cost to Banyan of any
such Requisitioned Purchases.
1.4 Pooled Purchases. Switchboard may utilize services or products which
are purchased by Banyan from third parties ("Pooled Purchases"). Switchboard
acknowledges its responsibility to reimburse Banyan for Switchboard's pro rata
share of such Pooled Purchases. Switchboard and Banyan will, with regard to
each type of Pooled Purchase, agree to a reasonable basis of allocation between
Banyan and Switchboard of the costs of such Pooled Purchase. Pooled Purchases
may include, but shall not be limited to, (1) telephone service, (2) copier
machines and supplies, and (3) postage usage.
1.5 Limitations on Banyan's Obligations
1.5.1 Banyan need not make available any Basic services, Charged Services,
Requisitioned Purchases, or Pooled Purchases (collectively "Services") to the
extent that doing so would, in Banyan's sole judgment, unreasonably, (1)
interfere with the performance by any Banyan employee of services for Banyan or
otherwise cause unreasonable burden to Banyan, or (2) interfere with the use of
or access to by Banyan of any equipment, office space or facility or otherwise
cause unreasonable burden to Banyan.
1.5.2 Banyan shall have no obligation to provide services other than those
related to or arising out of or in connection with matters which Banyan is in a
position to provide by reason of past participation, involvement or familiarity
with such matters and, in addition, which Switchboard has a reasonable
requirement to obtain.
1.5.3 Banyan shall not be required to hire any person that Banyan would
not otherwise hire to provide any of the services.
SECTION 2 BILLING
2.1 Basic Services. Switchboard shall be billed for the Basic Service on a
monthly basis and such amount billed shall be payable to Banyan within 60 days
after the date of the invoice for such services.
2.2 Other Services. All other services shall be billed on either a
monthly basis, or at such other times to reasonably reflect the time at which
Banyan incurs expense in providing such services.
2.3 Out of Pocket Expenses. Expect to the extent otherwise included in
the cost of Services, Banyan shall be entitled to receive from Switchboard upon
the presentation of invoices therefore, payment for its reasonable out-of-pocket
expenses incurred in providing such services, including fees and costs incurred
by outside parties or affiliates in the provision of services.
SECTION 3 SCOPE OF AGREEMENT
This Agreement is not intended to cover any agreements regarding research and
development for which separate arrangements or agreements will be or have been
entered into.
SECTION 4 TERM AND TERMINATION
This agreement shall continue in effect for a period of three years
following the Commencement Date (the "Initial Term") and, thereafter on a year-
to-year basis unless terminated upon the occurrence of any of the following:
4.1 Upon ninety (90) day's written notice from Switchboard to Banyan at
any time during the Initial Term; or
4.2 Upon ninety (90) day's written notice by either party to the other
party following the initial term.
SECTION 5 LIMITATION ON LIABILITY
The liability of Banyan to Switchboard for any loss or damage, whether
direct or indirect, arising in connection with providing the services to
Switchboard shall not exceed the total amount billed or billable to switchboard
for the particular Service or part thereof which gave rise to the loss or
damage, excluding from such limitation liability for any loss or damage caused
by the gross negligence or willful or wanton misconduct of Banyan. In no event
will Banyan be liable to Switchboard for indirect, consequential or incidental
damages, including without limitation loss of profits or damage to or loss or
use of any property.
SECTION 6 FORCE MAJEURE
Banyan shall be excused for failure to provide the Services hereunder to
the extent that such failure is directly or indirectly caused by an occurrence
commonly known as force majeure, including, without limitation, delays arising
out of acts of God, acts or orders of a government, agency or instrumentality
thereof (whether of fact or law), acts of public enemy, riots, embargoes,
strikes or other concerted acts of workers (whether of Banyan or other persons),
casualties or accidents, delivery of materials, transportation or shortage of
cars, trucks, fuel, power, labor, or materials, or any other causes,
circumstances or contingencies within or without the United States of America,
which are beyond the control of Banyan. Notwithstanding any events operating to
excuse the performance by Banyan, this Agreement shall continue in full force
for the remainder of its term and any renewals thereof.
SECTION 7 CONFIDENTIALITY
Except as otherwise required under applicable law, Banyan and Switchboard
agree to maintain as confidential and not to disclose to any third party any and
all information provided by one party to the other or otherwise obtained by one
party from the other party in the performance of this Agreement.
SECTION 8 NOTICE
Any notice, request, instruction, consent, approval or other communication
provided for herein shall be in writing and shall be delivered personally, sent
by certified or registered mail, postage prepaid, telegraphed, sent by facsimile
transmission or by telex, and shall be deemed given when so delivered
personally, telegraphed, telexed, sent by facsimile transmission or, if mailed,
four days after the date of deposit in the United States mails, as follows:
To Banyan
Address: 000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: V.P. Finance
To Switchboard
Address: 000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Finance Manager
SECTION 9 CHOICE OF LAW
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts.
SECTION 10 AMENDMENTS
This Agreement constitutes the entire agreement between the parties and
supersedes all prior negotiations, undertakings, representation and agreements,
if any, of the parties hereto. This Agreement may not be amended orally but may
be amended only by a written instrument signed by all the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Commencement Date above.
BANYAN SYSTEMS INCORPORATED SWITCHBOARD INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Title: VP Finance and Treasurer Title: President
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