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Exhibit 10.2
SERVICES AGREEMENT
This Services Agreement ("Agreement") is made and entered into as of
the 1st day of January, 2000, by and between INTELLIGROUP, INC., a New Jersey
corporation ("ITIG") and SERANOVA, INC., a New Jersey corporation ("SERANOVA").
The parties agree to be legally bound as follows:
1. SERVICES. ITIG will provide SERANOVA with various types of services
("Services") listed in Exhibit A, which is attached hereto and incorporated by
reference. Such Exhibit A may be amended from time to time by written agreement
between the parties. The Retained Employees (as defined in Section 5(a)(ii))
shall exclusively provide Services to SERANOVA and/or SERANOVA's clients as
directed by SERANOVA and pursuant to Exhibit A.
2. TERMS OF AGREEMENT. This Agreement shall become effective on January 1, 2000
(the "Effective Date"), and shall remain in full force and effect for a period
of one (1) year thereafter, unless earlier terminated pursuant to the provisions
of this Agreement. This Agreement shall automatically renew for additional
consecutive renewal terms of one (1) year unless either ITIG or SERANOVA gives
written notice of its intent not to renew the terms of this Agreement sixty (60)
days prior to the expiration of the then expiring term. The initial one year
term and any renewal period(s) thereafter shall collectively be referred to as
the "Term."
3. TERMINATION OF AGREEMENT.
(a) This Agreement or any portion thereof may be terminated by
either party, for any reason, with thirty (30) days prior
written notice to the other party.
(b) This Agreement or any portion thereof may be terminated by
either party (the "non-defaulting party") if any of the
following events occur by or with respect to the other party
(the "defaulting party"): (i) the defaulting party commits a
material breach of any of its obligations hereunder and fails
to cure such breach within thirty (30) days of receipt of
written notice from non-defaulting party; or (ii) any
insolvency of the defaulting party, any filing of a petition
in bankruptcy by or against the defaulting party, any
appointment of a receiver for the defaulting party, or any
assignment for the benefit of the defaulting party's
creditors; provided, however, that in the case of any
involuntary bankruptcy proceeding such right to terminate
shall only become effective if the proceeding is not dismissed
within sixty (60) days after the filing thereof.
Termination under this Section 3 or otherwise shall have no effect on the
respective obligations to make any payment required to be made pursuant to the
terms of this Agreement or any other obligation hereunder that survives the
termination of this Agreement. Neither party shall have any liability to the
other party for terminating the Agreement pursuant to this Section 3.
4. TRANSITION ASSISTANCE. Other than for termination by SERANOVA pursuant to
Section 3(a) or by ITIG under Section 3(b)(ii), ITIG agrees to provide SERANOVA
with transition
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assistance for up to 180 days (or such shorter period as SERANOVA may elect)
after the expiration of the Term, or upon the termination of this Agreement by
either ITIG or SERANOVA. Transition assistance shall include the following: (i)
ITIG shall reasonably cooperate with SERANOVA or any relevant third party for
transferring of the Services to SERANOVA or any such third party that SERANOVA
selects; (ii) ITIG shall perform any new types of services, at a fee agreed upon
in writing by the parties, that are reasonably required to assist in
transferring of the Services to SERANOVA or any such third party that SERANOVA
selects; (iii) ITIG shall provide to SERANOVA, upon SERANOVA's reasonable
request, any records or other information relating to said Services; and (iv)
comply with SERANOVA's reasonable requests for assistance in engaging or
training another person or persons to provide the Services rendered by ITIG. So
long as ITIG is providing SERANOVA with transition assistance, SERANOVA shall be
obligated to provide compensation to ITIG pursuant to Exhibit A.
5. INVOICING AND PAYMENTS.
(a) (i) SERANOVA shall remit payment of the monthly fee set forth
on Exhibit A to ITIG on or before the first day of each month
for the preceding month's Services. The first such payment
shall commence on the first day of the first month following
the Effective Date. Payment for any Services provided for a
partial month period preceding or following the initial
payment shall be prorated accordingly based on the number of
days in a given month. Notwithstanding any other provision of
this Section 5, ITIG shall make all payments to third parties
as necessary to ensure continued Services of the types
contemplated in this Agreement.
(ii) ITIG shall pay wages, provide benefits and make employer
contributions on behalf of the ITIG employees listed on
Exhibit B, which is attached hereto and incorporated by
reference ("Retained Employees") until each Retained Employee
resigns his/her employment with ITIG or is transferred and
becomes an employee of SERANOVA (the "Transfer Date") and
SERANOVA shall reimburse ITIG for all such wages, benefits and
employer contributions paid by ITIG from the Effective Date
until the Transfer Date. ITIG's obligations to continue to pay
wages, provide benefits and make employer's contributions
shall terminate on each individual Retained Employee's
Transfer Date or upon termination or resignation of employment
of such Retained Employee. In light of SERANOVA's total
control over the terms and conditions of such Retained
Employees, SERANOVA retains the right to request the
termination of any Retained Employee when necessary and
appropriate. All amounts payable to any Retained Employee
terminates under this Section 5(a)(ii) by virtue of such
termination, including but not limited to severance pay,
accrued wages, accrued vacation or leave pay, shall be
reimbursed to ITIG by SERANOVA. Such Exhibit B may be amended
from time to time.
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(b) SERANOVA agrees to pay amounts equal to any Federal, state or
local sales, use, excise, privilege or other taxes or
assessments, however designated or levied, relating to any
amounts payable by SERANOVA to ITIG hereunder, this Agreement
or any Services provided by ITIG to SERANOVA pursuant hereto
and any taxes or amounts in lieu thereof paid or payable by
ITIG, exclusive of taxes based on ITIG's net income for the
Services or for any employees, agents or subcontractor of
ITIG. ITIG will invoice SERANOVA for any taxes payable by
SERANOVA that are required to be collected by ITIG pursuant to
any applicable law, rule, regulation or other requirement of
law.
6. OBLIGATIONS.
(a) Certain Information. SERANOVA shall provide to ITIG any
information needed by ITIG to perform the Services. If the
failure to provide such information renders the performance of
any requested Services impossible or unreasonably difficult,
ITIG may upon reasonable prior written notice to SERANOVA and
without incurring any liability refuse to provide such
Services until such time as SERANOVA has provided ITIG with
the requisite information.
(b) Further Assurances. During the term of this Agreement, ITIG
and SERANOVA shall use commercially reasonable efforts to: (i)
preserve their respective and mutual reputations and market
positions in strategic markets; (ii) promote their mutual
businesses and cause the retention and expansion of their
customers; (iii) refrain from taking any action which may
jeopardize any such customer relationship without the prior
written consent of the other party; and (iv) execute and
deliver any further legal instruments which may become
necessary to effect the purposes of this Agreement.
(c) Scope of Services. If ITIG and SERANOVA agree that it is
functionally impossible to continue to provide a Service under
this Agreement, or otherwise agree to eliminate or reduce one
or more Services provided hereunder, then ITIG shall
discontinue said Service at the time and in the manner agreed
to by the parties. In the event ITIG discontinues a Service
provided hereunder, SERANOVA's Service fee shall be prorated
based on a reasonable allocation of the costs as mutually
agreed by the parties. In the event that SERANOVA requires a
reasonable increase of the Services, ITIG shall increase the
amount of Services accordingly. The parties agree to negotiate
in good faith relating to ITIG's rendering of increased
services to SERANOVA and if the parties cannot agree on a
price, ITIG has no obligation to perform such increased
services.
7. OWNERSHIP. All deliverables generated pursuant to the Services as set forth
in Exhibit A ("Work Product") shall be deemed works made for hire under the
applicable copyright laws, and that all Work Product shall be the sole and
exclusive property of SERANOVA. To the extent that any Work Product is not
considered a work for hire under the applicable copyright laws, ITIG hereby
assigns all of its rights, title or interest in the Work Product and in all
related
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patents, copyrights, trademarks, trade secrets, rights of priority and other
proprietary rights to SERANOVA. ITIG shall make full disclosure to SERANOVA of
all such Work Product, and reasonably assist and cooperate with SERANOVA, at
SERANOVA's expense, in all respects and will execute documents, give testimony,
and take all further acts requested by SERANOVA to obtain, maintain, perfect and
enforce for SERANOVA patent, copyright, trademark, trade secret or other legal
protection for the Work Product, as well as all reissues, renewals and
extensions thereof.
8. SUBCONTRACTING SERVICES. ITIG may, with the consent or approval of SERANOVA,
subcontract certain Services, in whole or in part, provided to SERANOVA pursuant
to this Agreement. To the extent that ITIG subcontracts certain or all Services,
ITIG shall remain solely responsible to SERANOVA for the execution and quality
of said Services.
9. RECORD KEEPING.
(a) Processing. Upon ten (10) days prior written notice from
SERANOVA, ITIG shall provide SERANOVA and/or its
representatives or any regulatory agency having jurisdiction
reasonable access during normal business hours to ITIG's
facilities for the purpose of performing audits or inspections
of the business of ITIG relating to the Services. ITIG shall
provide any reasonable assistance as may be required by
SERANOVA and/or its representatives or any regulatory agency
having jurisdiction. ITIG shall not be required to provide
SERANOVA and/or its representatives or any regulatory agency
having jurisdiction access to ITIG's data of ITIG's customer's
data other than SERANOVA. If any audit by an auditor
designated by SERANOVA or any regulatory agency having
jurisdiction finds ITIG not in compliance with any audit
requirement relating to the Services, ITIG shall meet with
SERANOVA and the parties will agree on what actions ITIG must
take to be in compliance with the audit requirements. SERANOVA
shall be responsible for the cost of such audit.
(b) Charges. Upon ten (10) days prior written notice from
SERANOVA, ITIG shall provide SERANOVA and/or its
representatives reasonable access during normal business hours
to ITIG's facilities for the purpose of performing audits or
inspections to verify the accuracy of the amounts charged by
ITIG to SERANOVA for the Services. If, as a result of such
audit, it is determined that ITIG has overcharged SERANOVA,
SERANOVA shall notify ITIG of the amount of such overcharge
and ITIG shall promptly pay to SERANOVA the amount of the
overcharge, plus interest of one percent (1%) per month, but
in no event to exceed the highest lawful rate of interest,
calculated from the date of receipt by ITIG of the overcharged
amount until the date of payment to SERANOVA. In addition, in
the event any such audit reveals an overcharge to SERANOVA by
ITIG of five percent (5%) or more, ITIG shall reimburse
SERANOVA for cost of such audit.
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10. WARRANTY.
(a) ITIG represents and warrants that during the performance of
and for a period of sixty (60) days after performance, the
Services will be provided in a professional and workmanlike
manner in accordance with industry standards and the Services
will materially conform to Exhibit A. In the event the Service
fails to conform to the foregoing warranties in any material
respect, the sole and exclusive remedy of SERANOVA, and ITIG's
liability, as a result thereof will be for ITIG, at its
expense, to use its commercially reasonable efforts to cure or
correct such failure as soon as reasonably practical or refund
any monies paid by SERANOVA to ITIG for the nonconforming
portion of the Services.
(b) ITIG represents and warrants that to its knowledge, the
rendering of Services will not infringe on any US patents,
copyrights or trademarks.
(c) Each party represents and warrants that it shall comply with
all applicable federal, state and local laws and regulations
applicable to the Services and shall obtain all applicable
permits, registrations and licenses required of it in
connection with its obligations under this Agreement.
(d) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ITIG DOES NOT
MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER SUCH
WARRANTY BE EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY
WARRANTY FROM COURSE OF DEALING OR USAGE OF TRADE.
11. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY FOR ANY SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, WITHOUT
LIMITATION, LOST REVENUES, PROFITS, SAVINGS OR BUSINESS), WHETHER IN AN ACTION
BASED ON CONTRACT, WARRANTY, STRICT LIABILITY, TORT (INCLUDING, WITHOUT
LIMITATION, NEGLIGENCE) OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN INFORMED IN
ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN
REASONABLY FORESEEN BY SUCH PARTY. In no event shall either party's aggregate
liability to the other party exceed the total fees paid by SERANOVA to ITIG for
the twelve (12) month period immediately preceding the event that gave rise to
the liability, whether such liability is based on an action in contract,
warranty, strict liability or tort (including, without limitation, negligence)
or otherwise. Each party's entire liability under this Agreement shall be as set
out in this Section 11. The parties have agreed that the limitations specified
in this Section 11 will survive and apply even if any limited remedy specified
in this Agreement is found to have failed of its essential purpose.
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12. INDEMNIFICATION.
(a) Indemnity by SERANOVA. SERANOVA shall indemnify ITIG from and
defend ITIG against, any liability or expenses (including
reasonable attorneys' fees) arising out of or relating to any
claim, loss, damage, cost, liability, or expense ("Claim"):
1. Relating to the employment or termination thereof of
any Retained Employee;
2. Relating to (a) a violation of Federal, state, or other
laws (including common law) or regulations, including
but not limited to a violation of Federal, state, or
other laws (including common law) or regulations for the
protection of persons or members of a protected class or
category of persons by SERANOVA, its employees, or
agents, (b) sexual discrimination or harassment by
SERANOVA, its employees, or agents, and (c) work-related
injury except as maybe covered by SERANOVA's worker's
compensation or death caused by SERANOVA, its employees,
or agents;
3. Relating to amounts, including taxes, interest, and
penalties, assessed against ITIG which are the
obligations of SERANOVA pursuant to Section 5(b); and
4. the extent directly related to personal injury or
tangible personal property, damage resulting from any
Retained Employee's (prior to such Retained Employee's
Transfer Date but after SERANOVA becomes a publicly held
entity) and SERANOVA's negligent acts or omissions.
(b) Indemnity by ITIG. ITIG shall indemnify SERANOVA from and
defend SERANOVA against, any liability or expenses (including
reasonable attorneys' fees) arising out of or relating to any
Claim:
1. Relating to (a) a violation of Federal, state, or other
laws (including common law) or regulations, including
but not limited to a violation of Federal, state, or
other laws or regulations for the protection of persons
or members of a protected class or category of persons
by ITIG, its employees, or agents, (b) sexual
discrimination or harassment by ITIG, its employees, or
agents, and (c ) work-related injury except as may be
covered by ITIG's worker's compensation or death caused
by ITIG, its employees, or agents;
2. Relating to amounts, including taxes, interest, and
penalties, assessed against SERANOVA which are the
obligations of ITIG pursuant to Section 5(b);
3. Relating to ITIG's non-compliance with legal or
regulatory requirements applicable to ITIG; and
4. To the extent directly related to personal injury or
tangible personal property damage resulting from ITIG's
negligent acts or omissions excluding the acts or
omissions of any Retained Employees (prior to such
Retained Employee's Transfer Date but after SERANOVA
becomes a publicly held entity).
(c) The party seeking indemnification under any provision of this
Agreement shall promptly notify the party against whom the
indemnification is sought in writing of any claim for
indemnification, specifying in detail the basis of such claim,
the
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facts pertaining thereto and, if known, the amount, or an
estimate of the amount, of the liability arising therefrom;
provided however, that failure to give such notice shall not
affect the indemnification provided hereunder except to the
extent that the indemnifying party can demonstrate actual
monetary prejudice as a direct result of such failure. The
indemnified party shall provide to the indemnifying party as
promptly as practicable thereafter all information and
documentation necessary to support and verify the claim
asserted and the indemnifying party shall be given reasonable
access to all books and records in the possession or control
of the indemnified party or any of its affiliates which the
indemnifying party reasonably determines to be related to such
claim.
(d) The indemnifying party shall have sole control over the
defense and/or settlement of any claim and the indemnified
party will, at the indemnifying party's sole expense, provide
reasonable assistance to the indemnifying party. If the
indemnified party takes any overt action that unreasonably
compromises the indemnifying party's defense or settlement of
any claim, the indemnifying party shall be relieved of its
indemnification obligations for such particular claim.
13. PARTIES' RELATIONSHIP.
(a) Independent. The parties are independent entities with each
having sole authority and control of the manner of, and is
responsible for, its performance of this Agreement. This
Agreement does not create or evidence a partnership or joint
venture between the parties. Neither party has the right or
authority to enter into any contract, warranty, guaranty or
other undertaking in the name or for the account of the other
party, or to assume or create any obligation or liability of
any kind, express or implied, on behalf of the other party, or
to bind the other party in any manner whatsoever, or to hold
itself out as having any right, power or authority to create
any such obligation or liability on behalf of the other or to
bind the other party in any manner whatsoever (except as
otherwise provided by this Agreement or as to any other
actions taken by either party at the express written request
and direction of the other party).
(b) Employees. Except as otherwise described herein, for the
purposes of this Agreement each party is solely responsible
for its own employees or agents, including the actions or
omissions and the payment of compensation, taxes and benefits
of those employees and agents.
(c) Access. To the extent reasonably required for SERANOVA's
personnel to perform their job functions, ITIG shall provide
SERANOVA's personnel with reasonable access to its equipment,
office facilities and any other areas and equipment for which
SERANOVA has provided compensation to ITIG under the terms of
this Agreement. In addition, the employees of SERANOVA shall
have reasonable access to those employees of ITIG who perform
any of the Services.
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(d) Non Solicitation. During the Term hereof and for a period of
twelve (12) months thereafter, neither party shall, directly
or indirectly, solicit for employment or employ, or accept
services provided by, any employee, officer or independent
contractor of the other party who performed any work in
connection with or related to the Services without the prior
written consent of the other party and such consent shall not
be unreasonably withheld.
14. DISPUTE RESOLUTION PROCEDURE. Except as otherwise stated in this Agreement,
the parties shall resolve all disputes in accordance with the following
procedure:
(a) Each party shall promptly negotiate in good faith to resolve
all disputes, controversies or claims arising out of or
relating to this Agreement or the performance hereunder (a
"Dispute"). In the event that the parties cannot resolve the
Dispute in such manner, they shall immediately refer the
Dispute to each party's CFO or such other senior executives as
may be mutually agreed upon by the parties from time to time.
If such executives do not agree upon a decision within a
reasonable amount of time after referral of the Dispute to
them (but in no event more than thirty (30) days from the date
the party that determines there is a Dispute becomes aware of
such dispute) they shall submit the Dispute to the following
binding arbitration procedures:
1. Any Dispute shall be submitted to binding arbitration,
in accordance with the dispute resolution procedures specified
in this Section 14. If any of these procedures are determined
to be invalid or unenforceable, the remaining procedures shall
remain in effect and binding on the parties to the fullest
extent permitted by law.
2. The arbitration shall be conducted in accordance with
the procedures specified in this Section 14 and the
Arbitration Rules for Professional Accounting and Related
Services Disputes of the AAA ("AAA Rules"). In the event of a
conflict, the provisions of this Section 14 shall control. The
arbitration shall be conducted before a panel of three
arbitrators, regardless of the size of the Dispute, to be
selected as provided in the AAA Rules.
3. Any issue concerning the extent to which any Dispute is
subject to arbitration, or concerning the applicability,
interpretation, or enforceability of these procedures,
including any contention that all or part of these procedures
are invalid or unenforceable, shall be governed by the Federal
Arbitration Act and resolved by the arbitrators. No potential
arbitrator may serve on the panel unless first agreeing in
writing to abide and be bound by these procedures. The
arbitrators may not award non-monetary or equitable relief of
any sort. They shall have no power to award damages
inconsistent with the Agreement or punitive damages or any
other damages not measured by the prevailing party's actual
damages, and the parties expressly waive their right to obtain
such damages in arbitration or in any other forum. In no
event, even if any other portion of these procedures is
adjudged invalid or unenforceable, shall the arbitrators have
power
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to make an award or impose a remedy that could not be made or
imposed by a court deciding the matter in the same
jurisdiction.
4. No discovery shall be permitted in connection with the
arbitration unless expressly authorized by the arbitration
panel upon a showing of substantial need by the party seeking
discovery. All aspects of the arbitration shall be treated as
confidential. Neither the parties nor the arbitrators may
disclose the existence, content or results of the arbitration,
except as necessary to comply with legal or regulatory
requirements. Before making any such disclosure, a party shall
give written notice to all other parties and afford such
parties a reasonable opportunity to protect their interest.
The result of the arbitration shall be a final decision that
is binding on the parties, and judgment on the arbitrators'
award may be entered in any court having jurisdiction.
15. CONFIDENTIALITY.
(a) SERANOVA and ITIG shall each (i) hold the Confidential
Information (as defined below) of the other in trust and
confidence and avoid the disclosure or release thereof to any
other person or entity by using the same degree of care as it
uses to avoid unauthorized use, disclosure, or dissemination
of its own Confidential Information of a similar nature, but
not less than reasonable care, and (ii) not use the
Confidential Information of the other party for any purpose
whatsoever except as expressly contemplated under this
Agreement. Each party shall disclose the Confidential
Information of the other only to those of its employees having
a need to know such Confidential Information and shall take
all reasonable precautions to ensure that its employees comply
with the provisions of this Section 15.
(b) The term "Confidential Information" shall mean any and all
information or proprietary materials (in every form and media)
not generally known in the relevant trade or industry and
which has been or is hereafter disclosed or made available by
either party (the "disclosing party") to the other (the
"receiving party") in connection with the efforts contemplated
hereunder, including (i) all trade secrets, (ii) existing or
contemplated products, services, designs, technology,
processes, technical data, engineering, techniques,
methodologies and concepts and any information related
thereto, and (iii) information relating to business plans,
sales or marketing methods and customer lists or requirements.
(c) The obligations of either party under this Section 15 will not
apply to information that the receiving party can demonstrate
(i) was in its possession at the time of disclosure and
without restriction as to confidentiality, (ii) at the time of
disclosure is generally available to the public or after
disclosure becomes generally available to the public through
no breach of agreement or other wrongful act by the receiving
party, (iii) has been received from a third party without
restriction on disclosure and without breach of agreement or
other
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wrongful act by the receiving party, (iv) is independently
developed by the receiving party without regard to the
Confidential Information of the other party, or (v) is
required to be disclosed by law or order of a court of
competent jurisdiction or regulatory authority, provided that
the receiving party shall furnish prompt written notice of
such required disclosure and reasonably cooperate with the
disclosing party, at the disclosing party's cost and expense,
in any effort made by the disclosing party to seek a
protective order or other appropriate protection of its
Confidential Information.
16. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned by either party hereto
without the prior written consent of the other party except ITIG may, upon prior
written notice to SERANOVA (but without any obligation to obtain the consent of
SERANOVA), assign this Agreement or any of its rights hereunder to any affiliate
of ITIG, or to any entity who succeeds (by purchase, merger, operation of law or
otherwise) to all or substantially all of the capital stock, assets or business
of ITIG, if such entity agrees in writing to assume and be bound by all of the
obligations of ITIG under this Agreement.
17. NO THIRD-PARTY BENEFICIARIES. Nothing expressed or implied in this Agreement
shall be construed to give any person or entity other than the parties any legal
or equitable rights under this Agreement.
18. WAIVERS. No term or provision hereof shall be deemed waived and no breach
excused unless such waiver or consent shall be in writing and signed by an
authorized representative of the party claiming to have waived or consented. No
consent by either party to, or waiver of, a breach by the other, whether express
or implied, shall constitute a consent to, waiver of, or excuse for any
different or subsequent breach.
19. NOTICES. All notices given in connection with this Agreement shall be in
writing and transmitted by (i) hand delivery; (ii) courier delivery; (iii) U.S.
certified mail, return receipt requested, postage prepaid; or (iv) telecopier to
the addressed listed below. Delivery of said notices shall be deemed given upon
the date of (a) receipt of courier delivery; (b) certified mail return receipt
is signed or delivery is rejected; or (c) receipt of written confirmation of
telecopier transmittal.
If to ITIG: Intelligroup, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: President
Fax No.: (000) 000-0000
If to SERANOVA: SeraNova, Inc.
000 Xxxxxxxx Xxxxxx
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Edison, New Jersey 08837
Attn: President
Fax No.: (000) 000-0000
20. FORCE MAJEURE. No delay or failure of a party to perform any of its
obligations, other than payment obligations, under this Agreement due to causes
beyond its reasonable control shall constitute a breach of this Agreement or
render that party liable for that delay or failure. Causes beyond a party's
reasonable control include, but are not limited to: (i) events or circumstances
that the party, even though using all, reasonable efforts, is unable to prevent
or overcome; or (ii) labor disputes, strikes, or other similar disturbances,
acts of God, utilities or communications failures, acts of the public enemy,
riots, insurrections, sabotage or vandalism.
21. SEVERABILITY. The invalidity, illegality or unenforceability of any
provision in this Agreement shall not in any way affect the validity, legality
or enforceability of any other provision of this Agreement. This Agreement shall
be reformed and construed in all respects as if such invalid or unenforceable
provision had never been in the Agreement and such provision shall be reformed
so that it will be valid, legal and enforceable to the extent possible.
22. GOVERNING LAW, VENUE AND JURISDICTION. This Agreement shall be construed in
accordance with and governed by the laws of the State of New Jersey, without
regard to its conflict of laws principles. Subject to Section 14, the parties
consent to jurisdiction and venue in the state courts of Middlesex County, New
Jersey, or if there is exclusive federal jurisdiction, the U.S. District Court
for the District of New Jersey, shall have exclusive jurisdiction and venue over
any dispute arising out of this Agreement.
23. HEADINGS. Headings in this Agreement are included for convenience of
reference only and do not constitute a part of this Agreement for any other
purpose.
24. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
between the parties with respect to the subject matter contained herein and
supersedes all prior communications, representations and agreements. It shall
not be varied except by a modification in writing which is duly executed by
authorized representatives of the parties subsequent to the date first appearing
herein
25. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be deemed an original and of equal force and effect.
26. INSURANCE. ITIG and SERANOVA (after SERANOVA becomes a publicly held
entity) agree to maintain insurance in accordance with the following:
- Workers Compensation & Employer's Liability: As required under the
law of the state in which the work is performed with each party's
liability limit not less than $500,000 per occurrence/annual
aggregate.
- Commercial General Liability: Covering all operations
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of each party including product and completed operations and
contractual liability against claims for personal bodily injury and
property damage with a liability limit not less than $1,000,000 per
occurrence/annual aggregate.
- Errors & Omission Insurance: Covering loss or damage arising out of
negligent acts or errors or omissions which arise from professional
Services provided by ITIG under this Agreement and any services
provided by SERANOVA (using the Retained Employees after SERANOVA
becomes a publicly held entity but prior to such employee's Transfer
Date) with limits no less than $1,000,000 per occurrence.
Such insurance coverage as is required under this Agreement shall be in
form and with insurance carriers licensed to do business in the state
where the services are provided, unless otherwise provided herein. As
evidence of said coverage, ITIG shall forward Certificates of
Insurance, or copies of insurance policies, to SERANOVA, which shall
contain a provision to endeavor to notify SERANOVA in writing of a
cancellation or nonrenewal of said coverages not less than thirty (30)
days before its effective date. The foregoing statements as to the
types and limits of insurance coverage to be maintained by ITIG, is not
intended to and shall not in any manner limit or qualify the
liabilities and obligations otherwise assumed by ITIG pursuant to this
Agreement, including but not limited to the provisions concerning
indemnification.
27. PUBLICITY. Neither party shall use the name of the other party in any
materials, statements or press releases without the prior written consent of the
other party.
IN WITNESS WHEREOF, this Agreement has been executed effective as of
the date first above written.
WITNESSES INTELLIGROUP, INC.
_____________________________
_____________________________ BY: /s/ Xxxxx Xxxxxx
_____________________________
Xxxxx Xxxxxx
Co-Chief Executive Officer
SERANOVA, INC.
_____________________________
_____________________________ By: Xxx Xxxxxx
_____________________________
Xxx Xxxxxx, CEO
-12-
13
EXHIBIT A
DESCRIPTION OF SUPPORT SERVICES AND APPLICABLE FEES
INFORMATION SYSTEMS & SUPPORT
Monthly Access and Support Fee for SAP system:
- Fixed charge of $4,000 per month;
- Includes application support and consultation;
- Does not include enhancement or modification of the underlying software or
configuration, except as needed to correct for system malfunction or
programming "bugs".
PC Applications and Hardware Support Services/Procurement:
- Fixed monthly charge of $10,000 for January; $8,000 per month thereafter;
- Support for desktop systems and network management applications for
Edison, N.J. location o Ordering, receiving and configuring of new PC's
and Laptops as needed (exclusive of actual cost of hardware and software
components).
- Continued access and support for Lotus Notes e-mail system currently
installed;
- Additional charges may be invoiced for the actual cost incurred to extend
or add user licenses should these be required (based upon increases in
registered users over baseline number, determined as of December 31,
1999).
The parties acknowledge that Intelligroup has entered into contractual
relationships with various software vendors for use of the software.
Intelligroup will permit SeraNova a right to use the software or provide
services to SeraNova to the extent Intelligroup is permitted under its
applicable agreements with the software vendors. SeraNova will take all
reasonable actions requested by Intelligroup, so that SeraNova may use the
software or receive services from Intelligroup. Upon SeraNova becoming a
publicly held entity, SeraNova, at its sole cost and expense, may have to enter
into separate agreements with such software vendors and may no longer have the
right to use the software or receive services from Intelligroup.
GENERAL ADMINISTRATIVE SUPPORT
Mail Delivery & Facilities Management
- Fixed charge of $3,000 per month, adjustable upon mutual agreement to
reflect changes in usage or underlying costs to Intelligroup;
- Monthly charge includes handling and distribution of mail and other
deliveries, incidental office supplies, copy machine usage, and general
facilities management;
- Additional charges will be invoiced for actual costs of "expressmails"
(including but not limited to Federal Express, U.S. Postal Service Exerts
Mail, Airborne Express);
- Additional charge of $1,000 per month for postage, adjustable upon mutual
agreement to reflect changes in usage or underlying costs to Intelligroup;
Receptionist
- Fixed charge of $1,700 per month.
14
Human Resources
- Fixed charge of $2,500 per month, adjustable upon mutual agreement to
reflect changes in underlying employee mix;
- Administrative support related to 401(k) Plans, applicable medical benefit
plans, employee manual; o Employee orientation and hiring support will be
invoiced at a rate of $100 per new "in-house" employee hired (covers such
incidentals as key cards, name plates, etc
Billing Support
- Fixed monthly charge of $1,000;
- Provides assistance with setting up and transferring A/R, and Billing
functions from Intelligroup; o Covers the cost of continued invoice
processing by Intelligroup required to clear historical amounts.
Payroll Support
- Fixed charge of $1,500 per month for the months of January through March,
2000; then at a rate of $500 per month thereafter;
- Provides administrative and processing assistance for the months of
January through March, 2000, including assistance with quarterly tax
reporting;
- Also provides for on-going advisory support in connection with payroll
processing; o External charges (such as Ceridian Payroll Service) are to
be directly billed to SeraNova.
Immigration
- Per case charge of $100 to cover administrative costs and access to
Immigration Staff;
- All external charges, including but not limited to legal (Fragomen) and
I.N.S. fees are to be directly billed to SeraNova.
Other Support and Administrative Costs
The above assumes that certain external costs will be directly invoiced to
SeraNova. In the event that any such costs, directly attributable to SeraNova,
are invoiced by a third party to Intelligroup, these will be recoverable by
Intelligroup upon presentment of such costs to SeraNova in the form of an
invoice or other written request for payment (which will detail the costs and
purposes for such costs).
Certain other costs may be incurred by Intelligroup on behalf of both parties,
which may include but are not be limited to (i) cost of general liability,
property and casualty, and other business insurance coverages (prior to SeraNova
becoming a publicly held entity); and (ii) costs of outside retained recruiting
firms. Intelligroup may recover a proportionate share of such costs from
SeraNova upon presentment to SeraNova in the form of an invoice or other written
request for payment (which will detail the costs and purposes for such costs).
Such proportion will be determined by mutual agreement of the parties.
15
INTELLIGROUP MONTHLY BILLING SCHEDULE FOR 2000
FOR CHARGES UNDER EXHIBIT A OF THE SERVICES AGREEMENT
Jan-00 Feb-00 Mar-00 Apr-00 May-00
------ ------ ------ ------ ------
Monthly Fixed Charges
Information Systems and Support
SAP systems access and support $5,500 $5,500 $5,500 $5,500 $5,500
PC applications and H/W support $11,000 $11,000 $11,000 $11,000 $11,000
General Administrative Support
Mail room and facilities $3,000 $3,000 $3,000 $3,000 $3,000
Postage $1,000 $1,000 $1,000 $1,000 $1,000
Receptionist $1,700 $1,700 $1,700 $1,700 $1,700
H/R support $3,500 $3,500 $3,500 $3,500 $3,500
Billing support $1,000 $1,000 $1,000 $1,000 $1,000
Payroll support $1,500 $1,500 $1,500 $500 $500
===================================================================
Total Fixed Charges for Services $28,200 $28,200 $28,200 $27,200 $27,200
===================================================================
Variable ("Per drink") charges
H/R support - $100 per new in-house hire
Immigration support - $100 per case
Jun-00 Jul-00 Aug-00 Sep-00 Oct-00
------ ------ ------ ------ ------
Monthly Fixed Charges
Information Systems and Support
SAP systems access and support $5,500 $5,500 $5,500 $5,500 $5,500
PC applications and H/W support $11,000 $11,000 $11,000 $11,000 $11,000
General Administrative Support
Mail room and facilities $3,000 $3,000 $3,000 $3,000 $3,000
Postage $1,000 $1,000 $1,000 $1,000 $1,000
Receptionist $1,700 $1,700 $1,700 $1,700 $1,700
H/R support $3,500 $3,500 $3,500 $3,500 $3,500
Billing support $1,000 $1,000 $1,000 $1,000 $1,000
Payroll support $500 $500 $500 $500 $500
================================================================
Total Fixed Charges for Services $27,200 $27,200 $27,200 $27,200 $27,200
================================================================
Variable ("Per drink") charges
H/R support - $100 per new in-house hire
Immigration support - $100 per case
Nov-00 Dec-00
------ ------
Monthly Fixed Charges
Information Systems and Support
SAP systems access and support $5,500 $5,500
PC applications and H/W support $11,000 $11,000
General Administrative Support
Mail room and facilities $3,000 $3,000
Postage $1,000 $1,000
Receptionist $1,700 $1,700
H/R support $3,500 $3,500
Billing support $1,000 $1,000
Payroll support $500 $500
========================
Total Fixed Charges for Services $27,200 $27,200
========================
16
Variable ("Per drink") charges
H/R support - $100 per new in-house hire
Immigration support - $100 per case
INTELLIGROUP MONTHLY BILLING SCHEDULE
FOR RENT AND UTILITIES CHARGES UNDER THE SPACE SHARING AGREEMENT
Jan-00 Feb-00 Mar-00 Apr-00 May-00 Jun-00
------ ------ ------ ------ ------ ------
INTELLIGROUP MONTHLY BILLING SCHEDULE
FOR RENT AND UTILITIES CHARGES UNDER THE SPACE SHARING AGREEMENT
Jul-00 Aug-00 Sep-00 Oct-00 Nov-00 Dec-00
------ ------ ------ ------ ------ ------
17
EXHIBIT B
RETAINED EMPLOYEES
NAME ID# NAME ID#
Xxxxxx, Xxxx # 0000 Xxxxxxxxx, Xxxxxxxxxxxx # 228
Xxxxxxxxxxxx, Xxxxxxx # 2036 Nath, Mohan # 706
Xxxxxx, Xxxxxxxxx # 479 Padmala, Xxxxxxxx Xxx # 1816
Xxxxxxxx, Xxxxxxxxxxx # 0000 Xxxxxx, Xxxxxxxx # 0000
Xxxxxx, Xxxxxxxxxxxx # 2251 Xxxxxx, Xxxxxx # 1683
Xxxxx, Xxxxxxx # 0000 Xxxxxxxx, Xxxxx # 1509
Errangutla, Mahesh # 606 Prasani, Vineet Rayroth # 159
Xxxxx, Xxxxxxxxxx # 761 Xxxxxxxxx, Xxxxx # 326
Xxxx, Xxxxxx # 0000 Xxxxxxxxxxxx, Xxxxxxx # 0000
Xxxxx, Xxxx # 000 Xxxxxxxxx, Xxxxxxx # 0000
Xxxxxx, Xxxxxxxxxxx # 2298 Xxx, Xxxxxxxxxx # 1859
Xxxxxxxxxx, Xxxx Xxxxxx # 000 Xxx, Xxxxxxxx # 0000
Xxxxxx, Xxxxxx # 910 Xxxxx, Xxxxxxxxx # 97
Xxxxxx, Xxxxxx # 1847 Xxxxx, Xxxxxx # 2290
Kelwalkar, Xxxx Xxxxxxxxxxx # 1931 Xxx, Xxxxx # 1596
Xxxxxxx, Xxxxxx # 1635 Sahoo, Xxxx Xxxxxxx # 0000
Xxxxxxxxxx, Xxxxxxxxx # 808 Sahu, Xxxxxxxx Xxxxx # 2163
Xxxxxx, Xxxxx # 628 Sawant, Sudhir # 535
Xxxxxxxx, Xxxxxxxxx X. # 2155 Xxxxx, Xxxxxx # 1592
Xxxxx, Xxxxxx # 2128 Xxxxxxxxx, Xxxxxx # 1846
Xxxxx, Xxx # 629 Xxxxx, Xxxxxxxx # 708
Kuttalingam, Vannamuthu # 1524 Xxxxxxxxxx, Xxxxxx # 1958
Lanka , Kutumba # 413 Xxxxxxxxxx, Xxxxxxx # 000
Xxxxxxx, Xxxxxxxx # 000 Xxxx, Xxxxxxxxxx # 2023
Madhineni, Xxxxxxxx # 684 Xxxxxx, Xxxxxxxx # 000
Xxxxxx, Xxxxxxx # 0000 Xxxxxxx, Xxxxxx # 1710
Xxxxxxxx, Xxxx # 348 Xxxxxxxxxxx, Xxxxxxx # 1963
Mopati, Krishna # 369 Xxxxxxxx, Xxxxxx # 000
Xxxxxxx, Xxxxxxxxx # 0000 Xxxx, Xxxxxxx # 181
Mysore, Xxxxxxxxx # 1924 Xxxxxxxx , Xxxxxxx # 1927
Xxxxxxxx, Xxxxx # 1508 Xxxxxx, Xxxxxxxxx not assigned
Xxxx, Xxxxx # 000 Xxxxxxxxxx, Xxxxxx not assigned
Xxxxxxxxxxx, Xxxxxx # 000 Xxxxxxxxxxx, Xxxxxxx S not assigned
Xxxxx, Xxxxxxx # 0000 Xxxxxx, Xxxx not assigned
