EDS INFORMATIONSTECHNOLOGIE & SERVICE GMBH EDS CONFIDENTIAL AND PRIVILEGED
THIS SERVICES AGREEMENT is made the 16th day of February 2001.
BETWEEN:
(1) Aucxis Corp, a company registered in Ontario, Canada and whose
registered office is at BCE Place, 000 Xxxx Xxxxxx Xxxx, Xxxxxxx, XX,
Xxxxxx X0X 0X0 ("Aucxis Corp") ; and
(2) EDS Informationstechnologie und Service GmbH a company registered in
Germany and whose registered office is at Xxxxxxxx. 00, 00000
Xxxxxxxxxxx, Xxxxxxx ("EDS").
EDS will provide to AUCXIS CORP the services specified in Schedule 1 to this
Agreement (the "Services") and AUCXIS CORP will make payment for the services in
accordance with the terms and conditions of this Agreement.
This Agreement commences on the date of the later of the signatures below and
will, unless terminated earlier, terminate on completion of the Services.
This Agreement consists of this executed cover page together with the Terms and
Conditions for Services, Schedule 1 (Services Charges and Payments) and any
schedules referenced therein.
Signed for and on behalf of EDS Signed for and on behalf of AUCXIS CORP
By/s/ Xxxxx Xxxxxxxx By /s/ Xxxxxx XxXxxxxx
................................. ...................................
Name: Name:
Title: Title: President
Date:2/20/01 Date: 2/19/01
(C) EDS LEGAL & CONTRACTS 1
EDS TERMS AND CONDITIONS
1. CHARGES
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1.1 In consideration of the performance of the Services in accordance with
the terms of this Agreement AUCXIS CORP will pay the Charges calculated
on the basis and at the rates set out in Schedule 1.
1.2 Payment, together with the applicable Value Added Tax, will be made
within thirty (30) days of receipt by the receiving party of a valid
invoice from the sending party. Late payment will bear interest at the
rate of 2% above the base rate in Germany.
2. WARRANTIES AND REPRESENTATIONS
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EDS will discharge its obligations hereunder with all due skill and
care and in accordance with its own established internal procedures.
3. LIMITATION OF LIABILITY
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EDS' liability for ordinary negligence is limited to typical and
foreseeable damages in a business of AUCXIS CORP'S type. Except as
provided in the preceeding sentence and for EDS' liability for willful
intent or gross negligence, AUCXIS CORP agrees that EDS shall not have
any other liability under this Agreement. This agreement shall not
exclude or limit EDS' liability for willful intent or gross negligence.
No claim, demand for mediation or arbitration or cause of action which
arose out of an event or events which occurred more than two years
prior to the filing of a demand for mediation or arbitration or suit
alleging a claim or cause of action may be asserted by either party
against the other.
4. INTELLECTUAL PROPERTY RIGHTS
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4.1 Each party will retain all rights in any software, ideas, concepts,
know-how, development tools, techniques or any other proprietary
material or information that it owned or developed prior to the
Effective Date of this agreement, or acquired or developed after the
Effective Date of this Agreement without reference to or use of the
intellectual property of the other party. No licenses will be deemed or
have been granted by either party to any of its patents, trade secrets,
trademarks or copyrights, except as otherwise expressly provided in
this Agreement.
4.2 Subject to any third party rights or restrictions and the other
provisions of this section AUCXIS CORP will own the copyright to all
distinct, tangible deliverables that (a) are specifically developed and
delivered by EDS to AUCXIS CORP under this agreement and (b) are fully
paid by AUCXIS CORP (the "Deliverables").
4.3 Notwithstanding anything to the contrary in this Agreement, EDS
(a) will own and retain all intellectual property rights in or
related to the Deliverables other than the copyright ownership
rights granted to AUCXIS CORP pursuant to this section,
(b) will retain all right, title and interest in and to all
know-how, intellectual property, methodologies, processes,
technologies, algorithms, software or development tools used
in performing the Services which are based on trade secrets or
proprietary information of EDS or are otherwise owned or
licensed by EDS (collectively, the "Tools"),
(c) will be free to use the ideas, concepts and know-how which are
developed or created in the course of performing the Services
(collectively, the "Residual Technology"), and
(d) will retain ownership of any Tools or Residual Technology that
become embedded in the Deliverables.
EDS hereby grants to AUCXIS CORP a perpetual (subject to compliance
with this sentence), royalty-free, non-transferable, nonexclusive
license to use any embedded Tools and Residual Knowledge solely in
connection with AUCXIS CORP'S use of the Deliverables and only so long
(C) EDS LEGAL & CONTRACTS 2
EDS TERMS AND CONDITIONS
as such Tools and Residual Technology remain embedded in the
Deliverables and are not separated therefrom.
4.4 Nothing in this Agreement
(a) will require EDS or AUCXIS CORP to violate the proprietary
rights of any third party in any software or otherwise or
(b) subject to the confidentiality restrictions in Section 7, will
impair EDS' right to acquire, license, market, distribute,
develop for itself or others or have others develop for EDS
similar technology performing the same or similar functions as
the technology, Deliverables or Services contemplated by this
Agreement.
5. FORCE MAJEURE
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5.1 Neither party will in any circumstances be liable to the other for any
loss of any kind whatsoever including but not limited to any damages or
abatement of Charges whether directly or indirectly caused to or
incurred by the other party by reason of any failure or delay in the
performance of its obligations hereunder which is due to circumstances
beyond the reasonable control of the affected party including (without
limitation) acts of God or fire flood strike or labour disputes civil
commercial sabotage statute order or any regulation of any government
public or local authority ("Force Majeure").
5.2 If either of the parties becomes aware of circumstances of Force
Majeure it will forthwith notify the other of the period which it is
estimated that the failure or delay will continue.
6. INTELLECTUAL PROPERTY RIGHTS
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Replaced by Section 4.
7. CONFIDENTIALITY
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7.1 All information made available to one party by the other party for the
purpose of this Agreement concerning its present activities or future
plans or actual or potential business dealings or trade, product or
customer information or information of a similar nature concerning any
parent, subsidiary or associated concern of the disclosing party or
obtained from the disclosing party's clients and this Agreement will be
regarded as confidential except where such information is in the public
domain, is already in the possession of the receiving party at the date
hereof or comes into the possession of the receiving party after the
date hereof as a result of independent research or legitimate
disclosure by a third party.
7.2 The receiving party undertakes on behalf of itself and its staff not to
disclose such information to any third party (other than when requested
to do so in the discharge of its obligations to supply information for
parliamentary, governmental or judicial purposes or under the rules or
regulations of any applicable stock exchange) nor to use it in any
publication at any time during the term of this Agreement or in the
five (5) years immediately following termination.
8. HEALTH AND SAFETY HAZARDS
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8.1 Each Party will notify the other of any health and safety hazards which
may arise in connection with the performance of this Agreement and the
party notified will draw these hazards to the attention of its
employees and sub-contractors or any persons engaged in the performance
of this Agreement.
8.2 When working at AUCXIS CORP'S premises EDS' personnel will comply with
such rules, regulations and requirements (including those relating to
access and security arrangements) as
(C) EDS LEGAL & CONTRACTS 3
EDS TERMS AND CONDITIONS
are in force from time to time for the conduct of personnel when at
those premises and which have been notified in writing to EDS.
9. TRANSFER AND SUB-CONTRACTING
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AUCXIS CORP will not assign, novate, sub-contract or otherwise dispose
of the Agreement in whole or in part without the prior written consent
of EDS.
10. CHANGE REQUEST
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This Agreement constitutes the entire agreement and understanding of
the parties and may only be varied or amended by agreement in writing
of a duly authorised representative of AUCXIS CORP and EDS. Where
AUCXIS CORP or EDS sees a need to change the Services AUCXIS CORP may
at any time request, and EDS may at any time recommend such change.
Neither party will unreasonably withhold its agreement to any change.
11. TERMINATION
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This Agreement may be terminated by either party forthwith on giving
notice in writing to the other if:
11.1 the other commits any material or persistent breach of any term of this
Agreement and (in the case of a breach capable of being remedied) fails
within 30 days after the receipt of a request in writing so to do, to
remedy the breach;
11.2 the other party has a receiver or administrative receiver appointed of
it or over any part of its undertaking or assets or passes a resolution
for winding up (other than for the purposes of a bona fide scheme of
solvent amalgamation or reconstruction ) or a court of competent
jurisdiction makes an order to that effect or if the other party enters
into any voluntary arrangement with its creditors or becomes subject to
an administration order.
11.3 Aucxis Corp may, if it is not satisfied with the EDS services,
terminate the Internet Data Centre hosting agreement upon 30 days
written notice.
12. GENERAL PROVISIONS
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12.1 NOTICES
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Any notice or other communication to be given under this Agreement must
be in writing and may be delivered or sent by pre-paid first class
letter post or facsimile transmission to the party to be served at that
party's last know address. In the case of EDS all notices and other
communication must be marked to the attention of the "Company
Secretary". Any notice or document will be deemed served: if delivered,
at the time of delivery; if posted, 48 hours after posting; and if sent
by facsimile transmission, at the time of transmission.
12.2. SEVERABILITY
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If any provision of this Agreement is held invalid, illegal or
unenforceable for any reason by any court of competent jurisdiction,
such provision will be severed and the remainder of the provisions
hereof will continue in full force and effect as if this Agreement had
been executed with the invalid, illegal or unenforceable provision
eliminated. In the event of a holding of invalidity so fundamental as
to prevent the accomplishment of the purpose of this Agreement, EDS and
AUCXIS CORP will immediately commence good faith negotiations to remedy
such invalidity.
12.3 RELATIONSHIP
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(C) EDS LEGAL & CONTRACTS 4
EDS TERMS AND CONDITIONS
EDS and AUCXIS CORP acknowledge and agree that this Agreement does not
constitute, create or give effect to a joint venture, pooling
arrangement principal/ agency relationship, partnership or formal
business organisation of any kind and neither EDS nor AUCXIS CORP will
have the right to bind the other without the other's express prior
written consent.
12.4 NO SOLICITATION OF EMPLOYEES
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For the term of this Agreement and for a period of six months
thereafter, without the prior written consent of the other party,
neither party will either directly or indirectly solicit or entice away
(or seek or attempt to entice away) from the employment of the other
party any person(s) employed (or any person(s) who have been so
employed in the preceding six months) by such other party. For the
avoidance of doubt, this Clause will not apply to unsolicited responses
to general recruitment advertising.
12.5 LAW AND JURISDICTION
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12.5.1 This Agreement is made and construed in accordance with German Law.
12.5.2 In the event of any dispute arising between the parties in connection
with this Agreement which cannot be resolved by the parties immediate
contract representatives, senior representatives of the parties will,
within twenty-one (21) days of a written request from either party to
the other, meet in good faith to attempt to resolve the dispute without
recourse to legal proceedings, failing which this agreement is subject
to the exclusive jurisdiction of the German Courts to which both
parties hereby submit.
(C) EDS LEGAL & CONTRACTS 5
EDS TERMS AND CONDITIONS
SCHEDULE 1 - INCUBATION SERVICES
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THE SERVICES, CHARGES AND PAYMENTS
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THE SERVICES
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DEFINITION OF THE SERVICES
The Services agreed to be provided by EDS are as listed in the attached document
[AUCXIS CORP & EDS INFORMATIONSTECHNOLOGIE & SERVICE GMBH, STATEMENT OF WORK AND
SERVICE LEVEL AGREEMENT].
COMMENCEMENT DATE
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The Commencement Date is: 1st of February 2001
ASSUMPTIONS/DEPENDENCIES
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The assumptions and dependencies have been described in detail in the attached
document [AUCXIS CORP & EDS INFORMATIONSTECHNOLOGIE & SERVICE GMBH, STATEMENT OF
WORK AND SERVICE LEVEL AGREEMENT].
FACILITIES
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The facilities supplied are described in detail in the attached document [AUCXIS
CORP & EDS INFORMATIONSTECHNOLOGIE & SERVICE GMBH, STATEMENT OF WORK AND SERVICE
LEVEL AGREEMENT].
CHARGES
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The charges are described in detail in the attached document [AUCXIS CORP & EDS
INFORMATIONSTECHNOLOGIE & SERVICE GMBH, STATEMENT OF WORK AND SERVICE LEVEL
AGREEMENT].
(C) EDS LEGAL & CONTRACTS 6
EDS TERMS AND CONDITIONS
AUCXIS CORP & EDS INFORMATIONSTECHNOLOGIE & SERVICE GMBH
DEFINITION OF THE SERVICES
The "Transaction":
1. CONSULTING SERVICES
Sales & Marketing, Whereby EDS will perform Sales and marketing
activities within their existing client base, using their channels to
market in accordance with the Go-To-Market strategy developed by EDS
for Aucxis Corp within the first phase of the consultancy engagement.
These channels are listed below:
EDS x-LOB Management:
|X| Divisional
|X| Regional
EDS Global Industry Groups:
|X| Communications
|X| Energy
|X| Financial
|X| Government
|X| Health Care
|X| Manufacturing and Retail
|X| Transportation
EDS x-LOB Sales community:
|X| Client Sales Executives
|X| Client Executives
|X| A.T. Xxxxxxx Vice President's
|X| Indirect Channels
|X| Partners and Strategic Alliances
2. INCUBATION SERVICES, pursuant to which EDS will host the Aucxis
Collateral Management Utility, build, customise and host other web
based applications, including the AUCXIS CORP'S Market Place; in
accordance with the Terms and Conditions of the web-hosting and
infrastructure proposal agreed by Aucxis. This contract will act as
guaranteed income to EDS from Aucxis for the Sales and Marketing
activities conducted by EDS on behalf of Aucxis. Payment, together with
the applicable Value Added Tax, will be made within thirty (30) days of
receipt by Aucxis Corp of a valid invoice from EDS. Late payment will
bear interest at the rate of 2% above the base rate in Germany.
3. RESELLER, pursuant to which EDS will resell the services of the Aucxis
eFinance Platform (on-line, service line and body shop);
4. RESELLER, pursuant to which AUCXIS CORP will resell certain EDS'
services to AUCXIS CORP'S customers (including and not confined to, EDS
and A.T. Xxxxxxx consulting services for client integration and
customisation, web-hosting and infrastructure services).
Through the integration of the Aucxis eFinance Platform into a suite of
Financial Services product offerings, EDS targets to generate $100 Million US in
transactional revenue over 5 years to Aucxis
(C) EDS LEGAL & CONTRACTS 7
EDS TERMS AND CONDITIONS
through the provisioning of the eFinance platform services. The parties
anticipate allocating such revenue 70% to Aucxis and 30% to EDS.
If Aucxis and EDS agree to perform additional services, Aucxis and EDS will
enter into specific contracts for such services, and such additional services
will be carried out under the standard EDS contractual terms and on a Time and
Material basis.
