GENERAL SERVICES AGREEMENT
This Agreement dated as of __________ ___, 1997 (the "Agreement"), is
made by and between Marcam Corporation, a Massachusetts corporation (the
"Company"), and Marcam Solutions, Inc., a Delaware corporation ("Marcam
Solutions").
WHEREAS, the Company and Marcam Solutions are parties to a certain
Distribution Agreement dated as of ___________ ___, 1997 (the "Distribution
Agreement") relating to the transfer of certain assets and liabilities of the
Company to Marcam Solutions;
WHEREAS, each party hereto has requested that the other party provide
it with certain consulting, management, administrative and legal services.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants contained in this Agreement and the Distribution
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Marcam Solutions
(the "Parties" and each a "Party") hereby agree as follows:
1. Services to be Rendered. Each Party shall render to the other from
time to time, upon request and subject to the availability of necessary
resources, those routine and ordinary tax, accounting, legal, administrative and
securities laws reporting-related services consistent with past practice and
which such other Party can provide with its existing staff and facilities (the
"Services"). By agreeing to provide the Services as an accommodation to each
other, neither Party is making any representations or warranties as to the
quality, suitability or adequacy of the Services for any purpose or use. In
providing the Services, neither Party shall be obligated to (i) hire any
additional employees; (ii) maintain the employment of any specific current
employees; (iii) maintain any specific level of staffing; or (iv) purchase,
lease, or license any additional equipment, software or facility. Each Party
shall be responsible for scheduling times for the performance of all Services
and shall use its reasonable efforts to provide the other Party with advance
notice of its requirements for Services to facilitate its employee scheduling
and preparation for such Services in a manner that does not conflict with such
Party's employees' other responsibilities. This Agreement shall not apply to
Services provided pursuant to the Tax Sharing Agreement (as defined in the
Distribution Agreement).
2. Compensation. For the Services rendered by one Party to the other
Party pursuant to this Agreement, the Party requesting Services shall pay to the
Party providing Services a proration of the salary, taxes, benefit plan
compensation, medical and other insurance and other similar employment expenses
of the persons providing the relevant Services, plus (i) a proration of the
overhead costs, including, without limitation, corporate office use and
utilities related to such persons; and (ii) directly related out-of-pocket
expenses, including, without limitation, travel, meals, couriers and third-party
consultants and experts (the "Allocated Amounts"). The Allocated Amounts are
intended to allow the Party providing Services to recover only its costs and
expenses without realizing any profit. The Allocated Amounts will be invoiced at
the end of
each month during the term of this Agreement and the Party requesting Services
shall pay to the Party providing Services such invoiced amounts within thirty
days of receipt of the invoice.
3. Term; Termination.
(a) This Agreement shall be effective as of the date hereof
and shall continue in full force and effect until September 30, 1998 (the
"Term"), unless sooner terminated as provided herein. Notwithstanding the
foregoing, the Parties hereto may agree from time to time to discontinue
providing or receiving particular Services as provided hereunder.
(b) Either Party may terminate this Agreement by written
notice to the other Party, effective immediately upon its sending, if the other
Party shall file a petition in bankruptcy, shall be adjudicated as bankrupt,
shall take advantage of the insolvency laws of any jurisdiction to which it is
subject, shall make an assignment for the benefit or creditors, shall be
voluntarily or involuntarily dissolved, shall admit in writing its inability to
pay debts as they come due, or shall have a receiver, trustee or other court
officer appointed for its property.
(c) Either Party may terminate this Agreement if the other
Party shall fail to perform or shall be in breach of any of its material
obligations hereunder, and shall have failed or been unable to remedy said
failure or breach within thirty (30) days after receipt of written notice from
the nonbreaching Party with respect thereto. In addition to the foregoing, the
nonbreaching Party shall be entitled all remedies available under law or equity,
subject to the limitations on liability expressed herein.
(d) The Parties' rights and obligations under Sections 2 and 4
though 14 shall survive any expiration or termination of this Agreement.
4. Confidentiality; Records.
(a) For purposes of this Agreement, "Confidential Information"
shall mean all information disclosed by one Party to the other Party pursuant to
this Agreement and identified by the disclosing Party as confidential, or if
disclosed orally, summarized in written format within thirty (30) days of
disclosure. Notwithstanding the foregoing, any and all technical and business
information disclosed by one Party to the other pursuant to this Agreement in
any manner or form including, but not limited to, financial plans and records,
marketing plans, business strategies, trade secrets, present and proposed
products, computer software programs, source code, technical documentation
relating to any software and any enhancements thereto, relationships with third
parties, customer lists, information regarding customers, suppliers, founders,
employees and affiliates shall be deemed to be Confidential Information,
regardless of whether it is disclosed in writing or marked as proprietary or
confidential.
(b) The Parties, their successors, assignees, officers,
directors, employees and agents each agree that all information provided in
connection with this Agreement will be provided subject to the following terms
and conditions: (i) Confidential Information of the other Party will be
protected from disclosure to anyone other than the directors, officers,
employees
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and agents of the receiving Party who have a need to have access to such
Confidential Information to perform obligations under, or obtain the benefits
of, this Agreement and each Party will use the same degree of care to protect
Confidential Information of the other Party as it uses to protect its own
Confidential Information of like importance, but no less than a reasonable
degree of care; (ii) the disclosing Party's Confidential Information will be
used only as necessary for performance of the receiving Party's obligations due
or rights conveyed under this Agreement and neither Party will make more copies
of the Confidential Information than is necessary; (iii) the receiving Party
will not have any obligation with respect to any Confidential Information of the
disclosing Party which the receiving Party can establish is or becomes publicly
available through no wrongful act of the receiving Party, was lawfully obtained
by the receiving Party from a third party without any obligation to maintain the
Confidential Information as proprietary or confidential, was previously known to
the receiving Party without any obligation to keep it confidential or was
independently developed by the receiving Party; (iv) no license to either
parties' Confidential Information is either granted or implied by the disclosure
of Confidential Information; (v) on the earlier of fourteen (14) days of a
request by the disclosing Party or termination or expiration of this Agreement,
the receiving Party shall return all property, including but not limited to,
documents, records, tapes and any other media as well as all copies thereof in
its possession or under its control that contains Confidential Information of
the disclosing Party; (vi) the duties and obligations to protect Confidential
Information will survive termination of this Agreement; and (vii) the Parties
recognize and acknowledge that the Confidential Information may have competitive
value and that irreparable damage might result to the disclosing Party if
Confidential Information is improperly disclosed by the receiving Party to any
nonauthorized third party. The Parties agree that legal proceedings at law or in
equity, including injunctive relief, may be appropriate in the event of a breach
hereof.
(c) Each Party shall maintain for a reasonable period of time
accurate records of all matters which relate to its obligations hereunder. To
the extent that such records may be relevant in determining if a Party is
complying with its obligations hereunder, the other Party and its authorized
representatives shall, on reasonable prior notice, have access to such records
for inspection, copying and audit during normal business hours.
5. Prevention of Performance. No Party shall be determined to be in
violation of this Agreement if it is prevented or delayed from performing any of
its obligations hereunder for any reason beyond its reasonable control,
including, without limitation, acts of God, nature or of public enemy, strikes
or limitations of law, regulations or rules of the Federal or of any state or
local government or of any agency thereof.
6. Independent Contractor; Indemnification.
(a) It is expressly agreed by the Parties hereto that each is
at all times acting and performing hereunder as an independent contractor and
not as agent for the other, and that no act of commission or omission of either
Party hereto shall be construed to make or render the other Party its principal,
agent, joint venturer or associate, except to the extent specified herein.
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(b) Each Party shall indemnify, defend and hold the other
Party and its directors, officers, employees and agents harmless from and
against all damages, losses and reasonable out-of-pocket expenses (including
fees) incurred by such Party in the course of performing the duties prescribed
hereby, except for damages, losses and out-of-pocket expenses incurred as a
result of any willful misconduct or gross negligence of any director, officer,
employee or agent of the other Party.
(c) Neither Party assumes any responsibility under this
Agreement other than to render the Services called for under this Agreement in
good faith and shall have no liability to the other Party, except for gross
negligence or willful misconduct. Each Party's sole remedy on account of the
failure of the other to render the Services as and when required hereunder shall
be to procure services elsewhere.
7. Notices. All notices, requests and other communications to either
Party shall be in writing (including telecopy or similar electronic
transmissions), shall refer specifically to this Agreement and shall be
personally delivered or sent by telecopy or other electronic facsimile
transmission, by registered mail or certified mail, return receipt requested,
postage prepaid or by reliable overnight courier service, in each case, to the
respective addresses specified below (or to such address as may be specified in
writing by one Party to the other). All notices shall be effective when received
if delivered by hand or facsimile, three (3) business days after mailing, if
mailed, and one (1) business day after delivery to a reliable overnight courier
service.
If to the Company: MAPICS, Inc.
0000-X Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Chief Executive Officer
Telecopy: (000) 000-0000
If to Marcam Solutions: Marcam Solutions, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Chief Executive Officer
Telecopy: (000) 000-0000
8. Entire Agreement. This Agreement, together with the Distribution
Agreement, constitute the full and complete understanding of the parties with
respect to the subject matter hereof and these documents together supersede and
terminate all other prior or contemporaneous agreements between the parties,
whether oral or written, with respect to the subject matter therein. No
representation, promise, inducement or statement of intention has been made by
either Party which is not set forth in this Agreement and neither shall be bound
by or liable for any alleged representation, promise, inducement or statement of
intention not so set forth.
9. Waiver; Amendment; Remedies. No waiver of any default hereunder
shall operate as a waiver of any other default or of a similar default on a
future occasion. No amendment or waiver of this Agreement or any provision
hereof shall be binding upon either Party unless made
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in writing and, with respect to an amendment, signed by the parties or, with
respect to a waiver, signed by the Party from whom a waiver of enforcement is
sought. No remedy referred to in this Agreement is intended to be exclusive, but
each shall be cumulative and in addition to any other remedy referred to herein
or otherwise available at law or in equity.
10. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of both Parties and their respective successors and
assigns, but may not be assigned by either Party without the prior written
consent of the other.
11. Authority to Act. Neither Party shall have the authority to act in
the other party's name except as is expressly provided for in this Agreement.
12. Captions. Captions have been inserted solely for the convenience of
reference and in no way define, limit or describe the scope or substance of any
provisions of this Agreement.
13. Severability. The provisions of this Agreement are severable, and
the invalidity of any provisions shall not affect the validity of any other
provision.
14. Governing Law. This Agreement shall be governed by, and construed
and enforced with, the substantive law of the Commonwealth of Massachusetts,
without giving effect to the principles of conflicts of laws thereof.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
MARCAM CORPORATION
By: ________________________________
Name:
Title:
MARCAM SOLUTIONS, INC.
By: ________________________________
Name:
Title:
