AGREEMENT
Prepared by XXXXXXX CORPORATION xxx.xxxxxxxxxxxxxx.xxx QuickLinks -- Click here to rapidly navigate through this documentExhibit 10.58
***Text Omitted and Filed Separately Confidential Treatment Requested Under 17 C.F.R. §§200.80(b)(4), 200.83 and 240.24b-2.
AGREEMENT between ADOBE SYSTEMS INCORPORATED, a Delaware corporation having a place of business at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000 ("Adobe Systems"), ADOBE SYSTEMS BENELUX, B.V., a company incorporated in The Netherlands and having a place of business at Xxxxxxxxx, Xxxxxxxxxxxxx 00x, 0000 XX Xxxxxxxxx XX, Xxx Xxxxxxxxxxx ("Adobe Benelux") (Adobe Systems and Adobe Benelux collectively referred to as "Adobe"), and SYKES NORTH AMERICA, a Florida corporation having a place of business at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxx, XX 00000 ("Sykes US"), SYKES EUROPE LIMITED, a company incorporated in Scotland under the Companies Act with registered number 86519 and having its registered office at Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, XX0 0XX ("Xxxxx Europe"), SYKES ASIA PACIFIC, located on the 0xx Xxxxx, XXXXX Xxxxxxxx, Xx. Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxx City 1550, Metro Manila, The Philippines ("Xxxxx Asia") (Sykes US, Sykes Asia and Sykes Europe collectively referred to as "Sykes"). WHEREAS: (A)Adobe is a world leader in the development, licensing and distribution of desktop publishing software; (B)Adobe Systems wishes to be provided with a variety of logistical services to support and facilitate its development, licensing and distribution in Canada, the United States and Mexico; (C)Adobe Benelux wishes to be provided with a variety of logistical services to support and facilitate its development, licensing and distribution in Europe, the Middle East, Africa, Australia and Asia; (D)Sykes US is willing to provide such logistical services to Adobe Systems in Canada, the United States and Mexico on the following terms and conditions; (E)Sykes Asia is willing to provide such logistical services to Adobe Benelux throughout Asia and Australia on the following terms and conditions; and
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(F)Sykes Europe is willing to provide such logistical services to Adobe Benelux throughout Europe, the Middle East and Africa on the following terms and conditions; NOW THEREFORE IT IS AGREED AS FOLLOWS: 1. OVERVIEW The parties agree that all rights or obligations associated with performance of the services described herein for and on behalf of Adobe Systems shall be performed only by Sykes US, as defined herein, and all rights or obligations associated with performance of the Services described herein for and on behalf of Adobe Benelux shall be performed either by Sykes Europe or Sykes Asia as described in this Agreement. Accordingly, Sykes US will provide Services to Adobe Systems only in the geographic regions of Canada, the United States and Mexico. Further, Sykes Asia will provide Services to Adobe Benelux only in the geographic regions of Asia and Australia. Finally, Sykes Europe will provide Services to Adobe Benelux in all other geographic regions not covered by Sykes US or Sykes Asia in this Agreement. The parties further agree that all obligations performed for Sykes US shall be performed only by Adobe Systems, and all obligations performed for either Sykes Europe or Sykes Asia shall be performed Adobe Benelux by as described in this Agreement. 2. DEFINITIONS AND INTERPRETATION
2.1In this Agreement unless the context otherwise requires, the following expressions shall bear the following meanings:
"Adobe" shall mean Adobe Systems or Adobe Benelux, as appropriate; "Adobe Databases" shall mean the separate Adobe Systems and Adobe Benelux databases from time to time made available by Adobe US to Sykes US and/ or by Adobe Benelux to Sykes Europe/Sykes Asia or created by Sykes Asia, Sykes Europe or Sykes US pursuant to the provision of Services hereunder; for the purposes of this Agreement, including but not limited to the databases specified in the Schedule; "Adobe Financial Month(s)" shall mean the period(s) of four or five weeks Adobe Benelux or Adobe Systems uses for internal financial accounting purposes, a list of all such months to be provided by Adobe Benelux to Sykes Europe and/or Sykes Asia, or provided by Adobe Systems to Sykes US at the beginning of the relevant financial year while this Agreement is in force; 2
"Adobe Financial Quarter(s)" shall mean the period(s) of thirteen (13) weeks Adobe Benelux or Adobe Systems uses for its internal financial accounting purposes, a list of all such quarters to be provided by Adobe Benelux to Sykes Europe and/or Sykes Asia, or provided by Adobe Systems to Sykes US, upon commencement of this Agreement and at the beginning of the relevant financial year while this Agreement is in force; "Adobe Financial Year" shall mean 4th December 1999 to 1st December 2000 for financial year 2000 and, for subsequent years, such period as Adobe Systems and/or Adobe Benelux designates as its financial year for its internal financial accounting purposes; "Adobe Products" shall mean Products but excluding Third Party Products; "Agreement" shall mean this Agreement, as between Adobe Benelux and Sykes Europe/Sykes Asia and as between Adobe Systems and Sykes US; "Asia Call Center Facility" shall mean Sykes Asia Call Center facility at 4th Floor, SMPPI Building, St. Xxxxxxx Avenue, Ortigas Center, Xxxxxxxxxxx Xxxx 0000, Xxxxx Xxxxxx, Xxxxxxxxxxx or such other premises as may be approved in advance by Adobe Benelux from time to time; "Asia Services" shall mean the Services provided by Sykes Asia on behalf of Adobe Benelux in at least the following (1) countries: Xxxxxxxxx, Xxxxx, Xxxxx and (2) languages: Cantonese, English, Fukienese, Korean (when available) and Mandarin; "ASN Members" shall mean certain members from time to time having access to Services; "CCS" shall mean the call center software owned by Sykes US, Sykes Asia or Sykes Europe and used in the co-ordination and management of the Services by Sykes US, Sykes Asia or Sykes Europe and used by Adobe Systems or Adobe Benelux, as appropriate, and as upgraded or modified with Adobe Systems or Adobe Benelux, as appropriate, prior written approval and development requirements from time to time; "Charges Schedule" shall mean Part 3 of the Schedule; "Client Group Manager" shall mean in relation to the relevant Management Team, the person identified as having those responsibilities in the relevant part of the Schedule; 3
"Commercial Practices" shall mean accepted industry practice regarding the nature of work to be done and the timescales in which it is to be carried out; "Confidential Information" shall have the meaning given to it in Clause 9; "Contract Term" shall mean the period beginning on the Effective Date (as hereinafter defined) and ending at 12:00 midnight GMT on 1st December 2000, unless terminated earlier in accordance with the provisions hereof; "CSN" shall mean the customer service number allocated to all Registered End Users and ASN Members; "CSR" shall mean a customer services representative allocated to the provision of Services and forming part of the Services Team; "Effective Date" shall mean 4th December 1999; "End User" shall mean a licensee of the Product(s) who acquires such products for its own use rather than distribution, and shall exclude distributors, dealers, value added distributors, original equipment manufacturers, third party vendors, system integrators and other parties who have licensed the Product(s) for distribution or for any purpose other than for their own use; "Europe Call Center Facility" shall mean Sykes' Call Center facility at Calder House, 000 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx, XX00 0XX or such other premises as may be approved in advance by Adobe; "Europe Services" shall mean the Services to be provided by Sykes Europe on behalf of Adobe Benelux in at least the following (1) countries: Belgium, Denmark, Finland, France, Germany, Iceland, Italy, Netherlands, Norway, Portugal, Spain, Sweden, United Kingdom and (2) languages: Danish, Dutch, English, Finnish, French, German, Italian, Norwegian, Portuguese, Spanish, Swedish; "Incoming Request" shall mean an incoming request from any person by fax, phone, post, e-mail or other media from time to time specified by Adobe Benelux or Adobe Systems for any of the Services, as appropriate; 4
"Intellectual Property" shall mean all intellectual property rights, similar and/or neighboring rights and sui generis rights, of whatever nature anywhere in the world and all rights pertaining thereto including but not limited to all present and future title to and/or interests therein whether recorded or registered in any manner or otherwise, including without prejudice to the foregoing generality, trade marks and service marks and applications therefor, patents and patent applications, copyright, database and unfair extraction rights, designs, design rights both registered and unregistered, design right applications, trade secrets, know-how, information, production methods, data, source codes and object codes, discoveries, specifications, diagrams, technology, research, methods of formulation, results of tests and field trials, specifications of materials, composites of materials, formulae and processes; "Lifeline" shall mean the Adobe Benelux or Adobe Systems intranet known as Lifeline which contains details of policies and with which Sykes Asia, Sykes Europe or Sykes US is expected to comply or such other intranet or other system as Adobe Benelux or Adobe Systems may from time to time use for such purpose; "Management Team" shall mean the management team(s) set up by Sykes Asia, Sykes Europe or Sykes US to manage their respective Services under this Agreement (as more specifically detailed in the relevant Parts of the Schedule); "North America Call Center Facility" shall mean Sykes US' warehouse and/or call center facility located 00000 Xxxxxx Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 and another facility located in Canada at a location to be determined. "North America Services" shall mean the Services to be provided by Sykes US on behalf of Adobe Systems in the following (1) countries: Canada, the United States and Mexico, and (2) languages: English, French, and Spanish; "Performance Metrics" shall mean the measurements in relation to each of the Services as set out in the relevant Services Schedule on which Sykes Asia, Sykes Europe or Sykes US shall provide reports in terms of Clause 3.6; 5
"Performance Standards" shall mean in relation to each Service, the binding performance standards identified in relation to that Service in the relevant Services Schedule; "Products" shall mean Adobe Benelux or Adobe Systems products and Third Party products, as appropriate, or as otherwise defined in a Schedule; "QBR" shall mean the quarterly business review in relation to each quarter to review performance of Services in the preceding quarter, problems encountered and to set goals and objectives for Sykes Asia, Sykes Europe or Sykes US for the following quarter to be held by the parties in terms of Clause 3.10; "Registered End Users" shall mean End Users who have been Verified and entered into the Sales and Registration Database or Type On Call Database, as the case may be; "Sales and Registration" shall mean the database held by Sykes Asia, Sykes Europe or Sykes US, as appropriate, and containing, among other information, details of appropriate Registered End Users in Asia, Europe and North America, respectively, and product registration for such Registered End Users. "Schedule" shall mean the schedule appended hereto which shall form part of this Agreement; "Services" shall mean the services provided by Sykes US, Sykes Asia and/or Sykes Europe or as otherwise defined in a statement of work or in Part 2 of the Schedule; "Services Team" shall mean the Sykes US, Sykes Asia and Sykes Europe employees allocated to the provision of North America Services, Asia Services, Europe Services, respectively; "SKU(s)" shall mean the stock keeping unit numbers allocated to stock held by Sykes US, Sykes Asia or Sykes Europe; "Sykes Associated Company" shall mean any group or party other than Sykes Asia, Sykes Europe, or Sykes US affiliated with and providing Services for or on behalf of Sykes Asia, Sykes Europe, or Sykes US; "Trade Marks" shall have the meaning given to it in Clause 13.3; "Training" shall mean the training for the provision of Services; 6
"Type On Call Countries" shall mean United Kingdom, Eire, France, Germany, Austria, Netherlands, Sweden, Belgium, Switzerland, Algeria, Australia, Botswana, Brazil, Bulgaria, Burkina Faso, Canada, Channel Islands, China, the Commonwealth of Independent States, Corsica, Crete, Croatia, Cyprus, Czech Republic, Czechoslovakia, Denmark, Egypt, Estonia, Faroe Islands, Finland, Gibraltar, Greece, Guadeloupe, Hong Kong, Hungary, Iceland, India, Israel, Italy, Xxxxx Xxxxx, Xxxxxx, Xxxxx, Xxxxxx, Xxxxxx, Liechtenstein, Lithuania, Luxembourg, Malta, Martinique, Mexico, Monaco, Mongolia, Namibia, Norway, Poland, Portugal, Romania, Russia, Saudi Arabia, Singapore, Slovakia, Slovenia, South Africa, Spain, Tanzania, Tunisia, Turkey, United Arab Emirates, United States, Yemen, Yugoslavia, Zambia and Zimbabwe and such other countries as the parties may agree in writing from time to time (such agreement not to be unreasonably withheld or delayed); "Type On Call Database" shall mean the database held by Adobe Benelux or Adobe Systems to which Sykes US, Sykes Europe or Sykes Asia has access in terms of this Agreement which holds, among other information, details of all Registered End Users who have registered Type On Call Products; "Type On Call Languages" shall mean Cantonese, Dutch, English, Finnish, French, Fukienese, German, Italian, Mandarin, Norwegian, Spanish, Dutch and Swedish and such other languages as the parties may agree in writing from time to time; "Type On Call Product" shall mean the Adobe Product (as amended from time to time by Adobe) containing various Adobe fonts which require to be unlocked for use by End Users following registration using the Type On Call Services; "Type On Call Services" shall mean the Services under which Sykes US, Sykes Europe or Sykes Asia will register their respective End Users for Type On Call Products and provide unlocking Services to their respective Registered End Users to allow them to unlock fonts within the Type On Call Product; "Updates" shall mean updates, patches, bug fixes and/or workarounds which Adobe Benelux or Adobe Systems may from time to time make available in relation to Adobe Products (whether on the Internet or otherwise); 7
"Verified" shall mean that the customer services number of the End User in question has been verified in accordance with mutually agreed upon procedures; "Working Day" shall mean each weekday (i.e. Monday through Friday inclusive) during the Contract Term other than Christmas Day and New Year's Day, and such weekend days (i.e. Saturday and Sunday) as the parties may agree in writing from time to time (such agreement not to be unreasonably withheld or delayed). (a)"Client Group Manager", "Client Group Administrator", "Operations Manager", "Programme Manager", "Senior Supervisor", "Client Lead", "Administrator", "Team Lead", "Senior Communicator", "Data Entry Supervisor" and "Data Entry Administrator" shall mean in relation to the relevant Services Team or Management Team the person from time to time identified as such, as agreed by the parties.
2.2Reference to any statute or statutory provisions shall include any statute or statutory provision which amends or replaces, or has amended or replaced, it and shall include any subordinate legislation made under the relevant statute. 2.3In circumstances where Sykes US, Sykes Asia or Sykes Europe is permitted hereunder to use the services of a sub-contractor in their performance of the Services, references herein to Sykes US, Sykes Asia or Sykes Europe shall, where appropriate, be construed as references to that sub-contractor provided always that Sykes shall remain primarily liable to Adobe Benelux or Adobe Systems, as appropriate, in respect of such sub-contractors. 2.4A reference to the singular shall include a reference to the plural and vice versa, and a reference to any gender includes a reference to all other genders. 2.5Headings are for convenience only and shall not affect interpretation. 3. APPOINTMENT 3.1 Non-Exclusive Appointment (a) By Adobe Benelux. Adobe Benelux hereby appoints Sykes Asia, and Sykes Asia hereby accepts appointment, as a non-exclusive provider of the Asia Services during the Contract Term, subject to the terms of this Agreement. As at the Effective Date, Adobe Benelux hereby instructs Sykes Asia to provide all the Asia Services detailed in this Agreement but, consistent with the non-exclusive nature of this appointment, Adobe Benelux shall be entitled at any time to discontinue and/or suspend the provision by Sykes Asia of any or all of the Services by giving a period of notice which shall not be less than forty-five (45) days. (b) By Adobe Benelux. Adobe Benelux hereby appoints Sykes Europe, and Sykes Europe hereby accepts appointment, as a non-exclusive provider of the Europe Services during the Contract Term, subject to the terms of this Agreement. As at the Effective Date, Adobe Benelux hereby instructs Sykes Europe to provide all the Europe Services detailed in this Agreement but, consistent with the non-exclusive nature of this appointment, Adobe Benelux shall be entitled at any time to discontinue and/or suspend the provision by Sykes Europe of any or all of the Services by giving a reasonable period of notice which shall not be less than forty-five (45) days. If Adobe Benelux, during the Contract Term, seeks (1) any extension to the existing Europe Services provided under this Agreement, or (2) the provision of new services similar to the
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Services provided by Sykes Europe which are not covered by this Agreement, Sykes Europe shall have the opportunity to tender for the provision of such new services. (c) By Adobe Systems. Adobe US hereby appoints Sykes US, and Sykes US hereby accepts appointment, as a non-exclusive provider of the North America Services during the Contract Term, subject to the terms of this Agreement. As at the Effective Date, . Adobe US hereby instructs Sykes US to provide all the North America Services detailed in this Agreement but, consistent with the non-exclusive nature of this appointment, Adobe US shall be entitled at any time to discontinue and/or suspend the provision by Sykes US of any or all of the Services by giving a reasonable period of notice which shall not be less than forty- five (45) days. If Adobe US, during the Contract Term, seeks (1) any extension to the existing North America Services provided under this Agreement, or (2) the provision of new services similar to the Services provided by Sykes US which are not covered by this Agreement, Sykes US shall have the opportunity to tender for the provision of such new services. 3.2 Performance(a)Sykes Asia, Sykes Europe and Sykes US warrant and undertake to Adobe Benelux and Adobe Systems, as appropriate, that their respective Services shall at all times be provided in accordance with this Agreement, their Services schedules (including but not limited to their Performance Standards and Performance Metrics) and any applicable shall mean any statement of work, schedule, or related documentation containing directions, guidelines, processes or procedures directed to Sykes Europe, Sykes Asia or Sykes US. (b)Adobe Benelux or Adobe Systems shall be entitled by thirty (30) days' prior written notice from Sykes Europe, Sykes Asia or Sykes US, as appropriate, to amend any statement of work, schedule or related documentation containing directions, guidelines, processes or procedures directed to Sykes Europe, Sykes Asia or Sykes US provided that such amendments will not have a material impact as determined by Adobe (whether requiring an increase or decrease) on the resources required by Sykes Europe, Sykes Asia or Sykes US, as appropriate, to provide their Services. Any such proposed amendments which will have a material impact (whether requiring an increase or decrease) on such resources shall be approved in advance in writing by Sykes Europe, Sykes Asia or Sykes US, as appropriate, acting reasonably. Sykes Europe, Sykes Asia and Sykes US shall be entitled to request amendments to directions, guidelines, processes, statement of work or procedures if such amendments will not affect the nature or quality of the Services but all such amendments will require to be approved in advance in writing by Adobe Benelux or Adobe Systems, as appropriate. (c)For the avoidance of doubt, unless explicitly stated to be a responsibility of Adobe Benelux or Adobe Systems, all obligations, duties, responsibilities and other matters set out or referred to in the Schedule, and any guidelines shall be the responsibility of Sykes' only and shall be Sykes' obligations under the terms of this Agreement, and except insofar as explicitly stated to be a responsibility of Adobe Benelux or Adobe Systems, it shall be Sykes' responsibility to ensure that Sykes Asia, Sykes Europe or Sykes US, as appropriate, performs any and all Services as described in the relevant Services Schedule or guidelines. 3.3 Resources Without prejudice to specific obligations elsewhere in this Agreement, Sykes Asia, Sykes Europe or Sykes US shall at all times devote sufficient resources and teams of sufficiently qualified personnel to enable it to provide their Services efficiently and professionally. Without prejudice to the generality of
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the foregoing, or any Performance Standard or Performance Metric set in relation to their Services, Sykes Asia, Sykes Europe or Sykes US shall provide their Services with best efforts and Sykes Asia, Sykes Europe or Sykes US shall at all times perform their Services courteously and in such manner as not to injure Adobe Benelux' or Adobe Systems' name or damage Adobe Benelux' or Adobe Systems' goodwill. 3.4 No Breach Sykes Asia, Sykes Europe and Sykes US hereby represents to Adobe Benelux or Adobe Systems that Sykes Asia, Sykes Europe and/or Sykes US, as appropriate, will not be in breach of any existing obligation binding on Sykes Asia, Sykes Europe and Sykes US by reason of its entering into this Agreement. 3.5 Other Services Sykes Asia, Sykes Europe and Sykes US undertake and agree that it will, upon request, appropriately provide Adobe Benelux or Adobe Systems with such additional Services as Adobe Benelux or Adobe Systems may from time to time appropriately require during the Contract Term as long as the request conforms with Commercial Practices and at prices to be agreed by the parties. If such Services are requested and included in this Agreement, the parties shall agree to the terms of a Services Schedule in relation to such Services (or such amendments to existing Services Schedule(s) as may be appropriate) together with such additions and/or amendments to any schedule, statement of work, documentation, appendices or any written documentation containing directions, guidelines, processes or procedures directed to Sykes Europe, Sykes Asia or Sykes US, as may be appropriate. 3.6 Reporting and Performance Metrics Sykes Asia, Sykes Europe and Sykes US shall provide such reports, information and data as Adobe Systems and Adobe Benelux shall, from time to time, require in relation to the performance of this Agreement. This requirement shall include but is not limited to reports on the Performance Metrics which shall be produced by Sykes Asia, Sykes Europe or Sykes US, as appropriate, and in relation to their Service in the terms set out in the relevant Services Schedule and the production by Sykes Asia, Sykes Europe and Sykes US, as appropriate, of all other reports, information and data more particularly specified in the Schedule. Reports on the Performance Metrics shall include all reports on the Performance Standards. Sykes Asia, Sykes Europe and Sykes US shall, as appropriate, ensure that all reports on the Performance Metrics and Performance Standards contain charts which show sufficient historical data to identify trends, clearly understood titles and labels, the goal or objective, a clear indication of which trend and trend direction is good and which is bad and a scale which accurately demonstrates but does not distort trends. Sykes Asia, Sykes Europe and Sykes US shall, as appropriate, ensure that all Performance Standards are drawn to the attention of all relevant employees. Sykes Asia, Sykes Europe and Sykes US shall, as appropriate, ensure that all Performance Metrics and Performance Standards are broken down as detailed in the relevant Services Schedule. Without prejudice to the foregoing, Sykes Asia, Sykes Europe and Sykes US shall use all reasonable endeavours to inform Adobe Benelux and Adobe Systems, as appropriate and without delay, of any matter which comes to the attention of Sykes Asia, Sykes Europe and Sykes US which is likely to affect materially the provision of Services. 3.7 Services Provided in Adobe Benelux or Adobe Systems' Name and Grant of License Any Services provided by Sykes Asia and Sykes Europe shall be in the name of Adobe Benelux. Any Services provided by Sykes US shall be in the name of Adobe Systems. So far as required by Sykes Asia, Sykes Europe and Sykes US for the proper performance of its duties hereunder during the Contract Term and for no other purpose whatsoever, Adobe Benelux or Adobe Systems shall use its reasonable endeavours to procure for Sykes Asia, Sykes Europe or Sykes US, as appropriate, a non-exclusive royalty- free limited licence to use specified trade marks, service marks, trade names and10
logos belonging to or licensed by Adobe Systems pertaining to Products. Such license shall automatically terminate on the date of termination or expiry of this Agreement howsoever terminated or expiring and with effect from such date Sykes Asia, Sykes Europe or Sykes US, as appropriate, shall have no further right to use any such trade marks, service marks, trade names or logos of Adobe Systems pertaining to Products or their licensors. Either Adobe Benelux or Adobe Systems may, in their sole discretion, distribute support software to Sykes technicians from Sykes Asia/Sykes Europe or Sykes US, respectively. Any support software provided by Adobe Benelux or Adobe Systems shall be subject to any applicable license, such license modifiable from time to time by Adobe Benelux or Adobe Systems, respectively, in their sole discretion. 3.8 Intellectual Property (a) Adobe Benelux. It is hereby expressly agreed that Adobe Systems shall be the sole and exclusive owner of all Intellectual Property rights in all work carried out by Sykes Europe and Sykes Asia (or on behalf of Sykes Europe or Sykes Asia) in the provision of the Services including but not limited to copyright in reports, manuals, electronic files and technical notes authored by Sykes Europe or Sykes Asia, copyright and database rights in any and all databases created or updated and copyright and related rights in any and all software developed by Sykes Europe or Sykes Asia in the performance of the Services, to the extent that such software is bespoke software commissioned from Sykes Europe or Sykes Asia by Adobe Benelux and charged to Adobe Benelux or Adobe Systems. Where Adobe Benelux has funded such software development, Sykes Europe and Sykes Asia shall only be entitled to use such software for the exclusive benefit of Adobe Benelux during the Contract Term, and any transitional period provided in Clause 14.6(a). In the event Sykes Asia or Sykes Europe develops any other software under this Agreement for the benefit of Adobe Benelux and other Sykes Asia and Sykes Europe clients, the parties shall agree how, if at all, the development costs of such software shall be apportioned. In any event, Adobe Systems shall own all intellectual property in such software and not limited in any way to use, sub-license and reproduce such software. Sykes Asia and Sykes Europe hereby assign as legal and beneficial owner to Adobe Systems, by way of future assignation any and all such Intellectual Property rights which are capable of future assignation and on Adobe Systems' request shall assign as legal and beneficial owner all other such Intellectual Property rights. Sykes Asia and Sykes Europe shall procure the waiver by all persons involved in the creation or development of any such works of such moral or similar rights as such persons may from time to time have in or in relation to such works. Without prejudice to the foregoing, Sykes Asia and Sykes Europe undertake to do all such things and execute (or procure the execution of) all such documents as Adobe Benelux or Adobe Systems shall from time to time require in order to perfect Adobe Systems title to same and obtain any applicable protections in Adobe Systems name and to confirm such waivers including but not limited to procuring assignations and waivers in Adobe Systems' favor from contractors and consultants. Sykes Asia and Sykes Europe warrant and represent to Adobe Benelux that each is entitled to assign such Intellectual Property to Adobe Systems and that such Intellectual Property does not infringe the Intellectual Property rights or moral or similar rights of any third party. (b) Adobe Systems. It is hereby expressly agreed that Adobe Systems shall be the sole and exclusive owner of all Intellectual Property rights in all work carried out by Sykes US (or on behalf of Sykes US) in the provision of the Services including but not limited to copyright in reports, manuals, electronic files and technical notes authored by Sykes US, copyright and database rights in any and all databases created or updated and copyright and related rights in any and all software developed by Sykes US in the performance of Services, to the extent11
that such software is bespoke software commissioned from Sykes US by Adobe Systems and charged to Adobe Systems. Where Adobe Systems has funded such software development, Sykes US shall only be entitled to use such software for the exclusive benefit of Adobe Systems during the Contract Term, and any transitional period provided in Clause 14.6(a). In the event Sykes US develops any other software under this Agreement for the benefit of Adobe Systems and other Sykes US clients, the parties shall agree how, if at all, the development costs of such software shall be apportioned. In any event, Adobe Systems shall own all intellectual property in such software and not limited in any way to use, sub-license and reproduce such software. Sykes US hereby assigns as legal and beneficial owner to Adobe Systems, by way of future assignation any and all such Intellectual Property rights which are capable of future assignation and on Adobe Systems' request shall assign as legal and beneficial owner all other such Intellectual Property rights. Xxxxx US shall procure the waiver by all persons involved in the creation or development of any such works of such moral or similar rights as such persons may from time to time have in or in relation to such works. Without prejudice to the foregoing, Xxxxx US undertakes to do all such things and execute (or procure the execution of) all such documents as Adobe Systems shall from time to time require in order to perfect Adobe Systems' title to same and obtain any applicable protections in Adobe Systems' name and to confirm such waivers including but not limited to procuring assignations and waivers in Adobe Systems' favor from contractors and consultants. Xxxxx US warrants and represents to Adobe Systems that it is entitled to assign such Intellectual Property to Adobe Systems and that such Intellectual Property does not infringe the Intellectual Property rights or moral or similar rights of any third party. 3.9 Hardware, Software and Systems Xxxxx Asia, together with Sykes Europe, and Sykes US shall each ensure to Adobe Benelux and Adobe Systems, respectively, that it has available to it all hardware, software, including CCS, and other technical resources required from time to time for the provision of Services all of which shall be at the responsibility and risk of Xxxxx Asia, Sykes Europe and Sykes US, as appropriate, and Xxxxx Asia, Sykes Europe and Sykes US shall maintain and update the same to standards consistent with Xxxxx Asia's, Sykes Europe's and Sykes US' independent obligations to meet the Performance Standards and Performance Metrics stated in this Agreement. Without prejudice to the foregoing generality this shall include but not be limited to the personal computers, peripheral devices, equipment and software necessary to:(a)have and maintain for the Contract Term, access to any Adobe Database (or other database) Adobe Benelux or Adobe Systems deems necessary (acting reasonably) for Xxxxx Asia, Sykes Europe and Sykes US, as appropriate, to perform their obligations under this Agreement; (b)maintain facilities for the entry into and processing of data in connection with all relevant Adobe Databases and for all reporting required in terms of this Agreement; (c)invoice, process and validate payments of membership fees and renewal fees and Product charges in the provision of the Services; (d)maintain technical resources which make call monitoring of Services supplied to End Users possible; (e)maintain an electronic mail system compatible with that specified by Adobe Benelux or Adobe Systems, as appropriate (acting reasonably); and (f)maintain sufficient electronic ordering, processing and other facilities as are necessary for shipping Products to End Users and Members respectively;
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Without prejudice to the foregoing, Xxxxx Asia, Sykes Europe and Sykes US shall ensure that each shall have available to it the infrastructure identified in Part 4 of the Schedule and any and all specific hardware, software and technical resources in relation to each of the individual Services (which shall have no less than the functionality described in any applicable schedule or statement of work) and shall not make any material change to any specifications or configurations so described without Adobe Benelux' or Adobe Systems' prior written consent, as appropriate. 3.10 Management Teams and Reviews (a) Adobe Benelux. Xxxxx Asia and Sykes Europe shall set up and maintain effective Management Teams primarily dedicated to Adobe Benelux. Xxxxx Asia and Sykes Europe shall ensure that the relevant members of the Management Teams shall attend and hold such meetings as Adobe Benelux shall from time to time reasonably require including but not limited to a quarterly business review (which will be held in the month following expiry of each Adobe Financial Quarter during the Contract Term) to review performance of the Services in the preceding quarter, problems encountered and to set goals and objectives and the other regular meetings scheduled in relation to Services. (b) Adobe Systems. Xxxxx US shall set up and maintain effective Management Teams primarily dedicated to Adobe Systems. Xxxxx US shall ensure that the relevant members of the Management Teams shall attend and hold such meetings as Adobe Systems shall from time to time reasonably require including but not limited to the QBR (which will be held in the month following expiry of each Adobe Financial Quarter during the Contract Term) and any other regular meetings as may be scheduled in relation to each of the Services. 3.11 Quality Control. Xxxxx shall at all times comply with applicable quality control schedules and metrics in effect including, but not limited to, those performance parameters related to call waiting times, accuracy of issue logs or any order input, accuracy in responses to customer inquiries, including technical, and confirmation of orders. Sykes shall immediately report any quality and quality control issues to Adobe Benelux and/or Adobe Systems, as appropriate and shall provide quality status as reasonably requested by Adobe Benelux and/or Adobe Systems and at any scheduled meetings related to quality control. Any problems or issues related to quality control shall be addressed immediately and prompt status reports provided to Adobe Benelux and/or Adobe Systems upon request. Any breach in quality, as determined by Adobe in its sole discretion, shall be considered a material breach of this Agreement, and appropriate termination proceedings pursuant to Section 14 apply.
3.11.1 Adobe Benelux In addition to any specific quality control mechanisms included from time to time in any Services Schedules and/or any applicable statement of work and without prejudice to the Performance Standards, Adobe Benelux shall be entitled: (a)upon twenty-four (24) hours' advance notice to Xxxxx Asia and Sykes Europe, to monitor responses to Incoming Requests (whether calls taken or e-mails or other written responses supplied or otherwise) and to analyze the quality and quantity of call logging; and (b)at any time(s) and as it deems appropriate to carry out written, telephone or other surveys of End Users and ASN Members as to their experience with Services provided to them.
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3.11.2 Adobe Systems In addition to any specific quality control mechanisms included from time to time in any Services Schedules and without prejudice to the Performance Standards, Adobe Systems shall be entitled: (a)upon twenty-four (24) hours' advance notice to Xxxxx US, to monitor responses to Incoming Requests (whether calls taken or e-mails or other written responses supplied or otherwise) and to analyze the quality and quantity of call logging; and (b)at any time(s) and as it deems appropriate to carry out written, telephone or other surveys of End Users and ASN Members as to their experience with Services provided to them. 3.12 Right of Audit. Upon ten (10) days notice to Sykes Europe and/or Xxxxx Asia, Adobe Benelux shall have the right to inspect and audit all the relevant records of Sykes Europe and/or Xxxxx Asia, as appropriate, to ensure compliance with the terms of this Agreement. Similarly, upon ten (10) days' notice to Sykes US, Adobe Systems shall have the right to inspect and audit all the relevant records of Xxxxx US to ensure compliance with the terms of this Agreement. Any audit by Adobe Systems or Adobe Benelux shall be conducted only by a certified public accountant whose fee is paid by Adobe Systems or Adobe Benelux, as appropriate, and shall be conducted during regular business hours at Sykes Europe/Xxxxx Asia or Sykes US offices, as appropriate, and in such a manner as not to unreasonably interfere with normal business activities. 4. SERVICES 4.1 Services to be Supplied Subject to the terms of this Agreement, Sykes Europe and Xxxxx Asia agree to provide Adobe Benelux with the Asia Services and Europe Services during the Contract Term at the prices set out in the Charge Schedule in accordance with the terms set out in the Schedule. Subject to the terms of this Agreement, Xxxxx US agrees to provide Adobe Systems with the North America Services during the Contract Term at the prices set out in the Charge Schedule in accordance with the terms set out in the appropriate Schedule and/or any applicable statement of work. 4.2 Recruitment, Training and Teams