TRANSITION SERVICES
AGREEMENT
by and between
H E W L E T T - P A C K A R D G m b X
Xxxxxxxxxxxx Xxxxxx 000
00000 Xxxxxxxxxx
(hereinafter referred to as "HP")
and
Multilayer Technology GmbH & Co. KG
Herrenberger Strabe 110
71034 Boeblingen
(hereinafter referred to as "Multek Europe ")
dated October 31, 1998
This TRANSITION SERVICES AGREEMENT (the "Services Agreement") is entered
into on October 31, 1998, by and between Multilayer Technology GmbH & Co. KG, a
German company registered and incorporated under the laws of Germany ("Multek
Europe"), and Hewlett-Packard GmbH, a German company registered and incorporated
under the laws of Germany ("HP"), (Multek Europe and HP are collectively
referred to as the "Parties").
RECITALS
A. HP and Multek Europe have entered into that certain Master Asset
Purchase Agreement pursuant to which all assets of the PRCO have been purchased
by Multek Europe.
B. HP and Multek Europe, have entered into certain ancillary agreements,
among others that certain Division Purchase Agreement for the purchasing of
printed circuit boards.
NOW, THEREFORE, the Parties hereto hereby agree as follows:
Section 1. Definitions. Each term used in this Services Agreement which is
defined in the Master Asset Purchase Agreement referred to above and its
ancillary agreements shall, unless otherwise defined herein, have the meaning
ascribed to it therein.
Section 2. Services Provided. Subject to the terms and conditions of this
Services Agreement, HP agrees to provide the following services as provided and
described in the respective Schedules attached hereto (the "Services") to Multek
Europe at the Premises of Multek Europe as required by Multek Europe in writing
if not already ordered by virtue of this Agreement, starting on the day
following the Closing Date on the same or substantially the same terms and
conditions to those applicable to the provision of the Services by HP to the
PRCO prior to the Closing Date. Schedules attached hereto may be amended by
mutual written agreement upon request of either Party:
(a) IS/IT Transition Services shall be provided as set forth in Schedule
2(a) attached hereto; for the provision of such Transition Services
the response times according to HP's internal Service Level Agreements
shall apply; the current response times are attached as Schedule 2(c).
Any change of the response times by HP is subject to Multek Europe's
consent which shall not unreasonably be withheld.
(b) All other Services shall be provided as set forth in Schedule 2(b)
attached hereto.
Section 3. Transitional Licenses for Use. In order to provide for a smooth
transition of IS/IT from HP proprietary systems and applications to Multek
Europe systems and applications HP shall
(a) grant to Multek Europe a non-exclusive, royalty-free license to use
the applications defined and listed in Schedule 3(a) attached hereto
at the Operations Site for the respective periods and under the terms
set forth in said Schedule; this license does not include the right to
grant sub-licenses.
(b) deliver to Multek Europe all documents related to the applications,
that exist at HP's establishment at HP's Boeblingen Site as of the
Closing Date. Upon termination of the license granted in Section 3(a)
above, Multek Europe shall promptly return to HP all the materials
delivered to it under this Section 3(b).
(c) The applications laid down in Schedule 3(b) are not yet
Year-2000-compliant as set forth in Schedule 3(c). The support
necessary to make the applications Year-2000-compliant will be
provided by HP to the terms and conditions described in Schedule 2(a).
(d) HP shall have no obligation to provide any support or services or any
environment element for the applications listed in Schedule 3(a)
except as set forth in Schedule 2(a).
(e) All systems (hardware and software) have been set up in conformance
with HP's internal security policy. Multek Europe shall define it's
own security policies and procedures to be implemented by HP.
Section 4. Requested Migration Services and Project Management. Upon
request and subject to the availability of HP resources, HP shall provide to
Multek Europe migration services and project management for services and
applications listed in Section 7 of Schedule 2(a).
Section 5. Term. The Services as listed in Schedule 2(a) and 2(b) hereto
shall be provided for the period starting on the day following the Closing Date
and terminating on the date(s) or with the notice periods described in Schedule
2(a) and 2(b).
Section 6. Payments. All and any payments shall be calculated in accordance
with the terms set out under Schedule 2(a) and 2(b). The services under this
Agreement will be invoiced at the end of each month. The payments shall be due
30 days after receipt of the monthly invoice.
Section 7. Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be deemed given or delivered
when delivered personally or five (5) days after being sent, when sent by
registered or certified mail, or one (1) day after being sent, when sent by
overnight private courier, addressed as follows:
If to Multek Europe, to:
Multilayer Technology GmbH & Co. KG
Xxxxxxxxxxxx Xxx. 000
X-00000 Xxxxxxxxxx
Attention: General Manager
If to HP, to:
Hewlett-Packard GmbH
Xxxxxxxxxxxx Xxx. 000
X-00000 Xxxxxxxxxx
Attention: Xxxx Xxxxxx,
or to such other address as such party may indicate by a notice delivered to the
other parties hereto.
Section 8. Schedules. Schedules referred to herein and delivered pursuant
hereto shall be delivered with the understanding of the Parties to be
preliminary Schedules. Based upon mutual consent between Multek Europe and HP,
they shall be subject to changes, modifications or other alterations prior to
and until the Closing Date. Schedules referred to herein and delivered pursuant
hereto shall be delivered in their mutually agreed upon final and definite form
on the Closing Date.
Section 9. Warranty/Liability.
(a) HP shall use commercially reasonable endeavors to prevent and remedy any
failures occurring during the provision of the services at no cost to
Multek Europe unless the parties agree otherwise in writing. Regarding the
services as set forth in Schedule 2(a) a technical escalation process is
established at HP (described in the TIS Escalation Guide in the then
current version which is attached as Schedule 9(a)) which Multek Europe may
trigger. Any change of the technical escalation process by HP is subject to
Multek Europe's consent which shall not unreasonably be withheld. If this
technical escalation process does not result in the rectification of the
failure, a business escalation to Xxxxxxxx Xxxxx (Tel. xx00 0000 000000)
or, in his absence, to Xxxxxx Xxxxxxxx (Tel. xx00 0000 000000) is possible.
Besides that HP shall provide the Services on an "as is" basis without any
warranty whatsoever. HP shall not be liable for any damages caused by the
provision of the Services. This shall not apply in the case of deliberate
intent or gross negligence.
(b) HP shall not be requested to provide any particular service set forth
herein to the extent that Multek Europe fails to provide access to or
changes, modifies or otherwise disturbs the infrastructure equipment which
is necessary to enable HP to perform the service. HP shall grant reasonable
access to any third party Multek Europe chooses to engage for rectification
of any failure in the chilled water supply.
(c) The right of both HP and Multek Europe to refuse performance of its
respective obligations until the counter-performance is affected shall in
no way be limited.
Section 10. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of Germany. The Courts of Stuttgart shall
have exclusive jurisdiction in all matters pertaining to this Services
Agreement.
IN WITNESS WHEREOF, this Services Agreement is hereby executed by a duly
authorized representative of each party as of the date first written above.
Multek Europe
/s/ Xxxxx Xxxxxxx
--------------------------------
By: Xxxxx Xxxxxxx
Title: President, Multek
HP acknowledged HPCO
/s/ Xxxx Xxxxxx /s/ Xxxxxx Xxxxxx
--------------------------------- -------------------------------------
By: Xxxx Xxxxxx By: Xxxxxx Xxxxxx
Title: Geschaftsfuhrer Title: Business Development Manager,
Hewlett-Packard GmbH Corporate Development Department
