CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR
WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY [*] OR [**].
CONFIDENTIAL INFORMATION OMITTED HAS BEEN FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION
Execution Version
SUPPORT SERVICES AGREEMENT
This SUPPORT SERVICES AGREEMENT (this "Agreement") is entered into as of October
24, 2001, by and between VSOURCE (CI) LTD, a corporation organized under the
laws of the Cayman Islands with registered offices at Xxxxxx Xxxxx, Xxxxx Xxxxxx
Xxxxxx, PO Box 309, Xxxxxx Town, Grand Cayman, Cayman Islands, British West
Indies ("Vsource"), VSOURCE, INC., a corporation organized under the laws of
Delaware with offices at 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx
00000, XXX ("Vsource Parent"), and Gateway Japan Inc., a corporation organized
under the laws of the State of Delaware, USA with offices at 000 Xxxxxxx Xxxxx,
Xxxxx Xxxxx Xxxx, Xxxxx Xxxxxx 00000-0000, XXX ("Gateway").
WHEREAS, Gateway and its Affiliates are leading providers of computer products;
WHEREAS, Gateway and its Affiliates are closing down their operations in the
Territory and wish to engage Vsource as their exclusive provider of the services
required to support the warranty and service obligations of Gateway and its
Affiliates with respect to the Gateway Products in the Territory, and Vsource
wishes to provide such services on an exclusive basis in accordance with and
subject to the terms and conditions of this Agreement; and
WHEREAS, in consideration of Gateway entering into this Agreement, Vsource
Parent wishes to guarantee the performance by Vsource of the obligations
specified herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
1. INTERPRETATION
1.1 In this Agreement:
"ADVANCE AMOUNT" shall mean the sum of US$3,000,000;
"Affiliates" shall mean companies that directly or indirectly through one
or more intermediaries, control, or are controlled by, or are under common
control with the referenced company and the term "control" (including the
terms "controlling", "controlled by" and "under common control with") means
the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a company, partnership, or
other body corporate, whether through the ownership of voting securities,
by contract or otherwise;
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"Agreement" shall mean this Agreement;
"Confidential Information" shall have the meaning set forth in Section 17
of this Agreement;
"Customer Database" shall mean the database set forth in Schedule 2 hereto;
"Effective Date" means November 1, 2001;
"Equipment" means equipment provided by Gateway to Vsource which is set
forth in Schedule 6 to this Agreement;
"Existing Gateway Sub-contractors" means those persons set forth in
Schedule 5 hereto;
"Existing Gateway Sub-contracts" means those agreements between the
Existing Gateway Sub-contractors and Gateway or an Affiliate thereof that
are set forth in Schedule 5 hereto;
"Fees" shall mean fees to be paid by Gateway to Vsource for the Services in
accordance with the prices set forth in Schedule 3 hereto;
"Force Majeure Event" shall mean an event beyond the reasonable control of
the affected party including, without limitation, strike, lock-out, labour
dispute (but excluding strike, lock-out and labour dispute involving the
employees of the affected party), act of God, war, riot, civil commotion,
malicious damage (but excluding malicious damage involving the employees of
the affected party), accident, fire, flood, earthquake, typhoon, hurricane,
storm, power outage, telecommunication outage or degradation, or compliance
with a law or governmental order, rule, regulation or direction;
"Gateway Marks" shall mean any and all of Gateway's trademarks, words and
design marks, trade names, service marks, trade logos and trade dress, and
foreign language equivalents thereof, described in Exhibit A attached
hereto, and as each may be unilaterally amended from time to time by
Gateway (whether registered or not);
"Gateway Products" shall mean all products sold by Gateway and its
Affiliates which are set forth in the Customer Database;
"Parts" shall mean the replacement parts for Gateway Products set forth in
Schedule 6 to this Agreement.
"Personal Information" means information or an opinion (including
information or an opinion forming part of a database), whether true or not,
and whether recorded in a material form or not, about an individual whose
identity is apparent, or can reasonably be ascertained, from the
information or opinion;
"Removed Part" shall mean a defective part that is removed from a Gateway
Product and replaced (rather than repaired) in the course of repairing such
Gateway Product;
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"Service Levels" shall mean the service levels set forth in Schedule 4;
"Services" shall mean the Services set out in Schedule 1 of this Agreement;
"Sub-contractor" shall mean a sub-contractor of Vsource (or of a
Sub-contractor), which may include Affiliates of Vsource, which Vsource (or
a Sub-contractor) has engaged to provide the Services;
"Taxes" shall mean taxes, charges, fees, levies or other assessments of any
nature, including, without limitation, any sales, value added, use, excise,
real or personal property, withholding, stamp or other taxes, customs,
duties or landing fees or other government charges however designated, now
or hereafter imposed, collected or assessed by, or payable to, any taxing
authority of any country and shall include interest, penalties and
additions imposed, collected or assessed or payable with respect to such
amount;
"Technical Information" shall mean technical information relating to the
Gateway Products, including, but not limited to, photographs, instruction
manuals, drawings, parts lists, technical support tools, and similar types
of data and information;
"Territory" shall mean Asia, including Japan, Hong Kong, Singapore,
Malaysia, Australia and New Zealand;
"Vsource Marks" shall mean any and all of Vsource's trademarks, words and
design marks, trade names, service marks, trade logos and trade dress, and
foreign language equivalents thereof, and as each may be unilaterally
amended from time to time by Vsource (whether registered or not);
"Warranty" shall mean the warranty and support terms and conditions for
each Gateway Product, as set forth in the Customer Database;
"Warranty Contact Details" shall mean the means of contact provided to each
end customer of a Gateway Product in order for such end customer to obtain
Warranty support for such end customer's Gateway Product, including without
limitation telephone numbers, telefacsimile numbers, e-mail addresses,
website addresses and mailing addresses.
1.2 In this Agreement, a reference to (i) a statutory provision includes a
reference to the statutory provision as modified or re-enacted or both from
time to time and any subordinate legislation made or other thing done under
the statutory provision; (ii) a person includes a reference to a
government, state, state agency, corporation, body corporate, association
or partnership; (iii) a person includes a reference to that person's legal
personal representatives, successors and permitted assigns; (iv) the
singular includes the plural and vice versa (unless the context otherwise
requires); (v) a section, clause, schedule or exhibit, unless the context
otherwise requires, is a reference to a section or clause of or schedule or
exhibit to this Agreement; and (vi) a "party" means Vsource or Gateway, as
indicated by the context, and the "parties" refers to Vsource and Gateway.
1.3 The headings in this Agreement do not affect their interpretation.
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2. APPOINTMENT
2.1 Gateway hereby appoints Vsource, and Vsource hereby accepts such
appointment, as Gateway's and its Affiliates' sole provider of the Services
within the Territory, subject to the provisions in Section 2.3.
2.2 Subject to prior notice to and consent from Gateway, such notice and
consent not to be unreasonably withheld or delayed, Vsource may use
Sub-contractors to perform some or all of its duties or obligations under
this Agreement. In performing its obligations under this Agreement, Vsource
and its Sub-contractors will be entitled to rely upon any instructions,
authorisations, approvals or other information provided to Vsource and/or
its Sub-contractors by Gateway. Unless Vsource knew or ought to have known
of any error, incorrectness or inaccuracy in such instructions,
authorisations, approvals or other information, Vsource will incur no
liability or responsibility of any kind in relying on or complying with any
such instructions or information. Vsource and Vsource Parent shall be
jointly and severally liable for the actions, omissions, and performance of
their Sub-contractors and their agents and employees.
2.3 Notwithstanding the provisions in Section 2.1, commencing from
[**Confidential information omitted and filed separately with the
Securities and Exchange Commission], Gateway shall be entitled, in its
absolute discretion, to appoint other persons to provide the Services in
the Territory in the event that Vsource materially fails to meet the
Service Levels for [**Confidential information omitted and filed separately
with the Securities and Exchange Commission].
3. TERM
3.1 This Agreement shall commence on the Effective Date and, unless terminated
in accordance with Section 3.2, shall have a term of three years (the
"Term"). Gateway shall have the right to renew this Agreement for up to two
additional one year terms by giving Vsource not less than 90 days written
notice before the expiry of the Term. Any such renewal period will be
governed by the same terms and conditions as this Agreement, except as the
parties may agree otherwise in writing.
3.2 This Agreement may be terminated for cause as follows:
(a) By Gateway upon sixty (60) days' written notice to Vsource if either
Vsource or Vsource Parent commits a material breach of this Agreement
and fails to cure the breach within such sixty (60) day period;
provided, that Vsource's failure to meet the Service Levels shall not
constitute a material breach for purposes of this Section 3.2.
(b) By Vsource or Vsource Parent upon sixty (60) days' written notice to
Gateway if Gateway commits a material breach of this Agreement and
fails to cure the breach within such sixty (60) day period.
(c) By Gateway immediately upon written notice to Vsource if Vsource or
Vsource Parent files for or has instituted against it any proceedings
as to its bankruptcy, insolvency, reorganization, judicial management,
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receivership, liquidation or dissolution or there is an assignment for
the benefit of creditors or it ceases to carry on business as
presently conducted, or if its ability to comply with all of its
obligations under this Agreement becomes materially impaired for any
reason, including but not limited to any such impairment arising from
a material adverse change in its financial condition or operations.
(d) By Vsource or Vsource Parent immediately upon written notice to
Gateway if Gateway or Gateway Inc. files for or has instituted against
it any proceedings as to its bankruptcy, insolvency, reorganization,
judicial management, receivership, liquidation or dissolution or there
is an assignment for the benefit of creditors or ceases to carry on
business as presently conducted, or if its ability to comply with all
of its obligations under this Agreement becomes materially impaired
for any reason, including but not limited to any such impairment
arising from a material adverse change in its financial condition or
operations.
(e) By Gateway upon thirty (30) days written notice if (i) commencing from
[**Confidential information omitted and filed separately with the
Securities and Exchange Commission], Vsource materially fails to meet
the Service Levels for [**Confidential information omitted and filed
separately with the Securities and Exchange Commission]; (ii)
commencing from [**Confidential information omitted and filed
separately with the Securities and Exchange Commission], Vsource
materially fails to meet the Service Levels for more than
[**Confidential information omitted and filed separately with the
Securities and Exchange Commission]; (iii) Vsource or Vsource Parent
assigns this Agreement to any other party without the prior written
consent of Gateway; or (iv) control of Vsource or Vsource Parent is
transferred to any person(s) other than such person(s) who are in
control of Vsource or Vsource Parent on the Effective Date.
(f) By Gateway pursuant to Schedule 3.
3.3 Upon termination of this Agreement by Gateway pursuant to Section 3.2,
Vsource shall (a) provide Gateway with access to its information systems,
files and records (including the Customer Database) as reasonably required
for Gateway or a person designated by Gateway to assume the Services, (b)
if instructed to do so by Gateway in writing, use its best efforts to
procure the novation or assignment of each contract with a Sub-contractor
used to provide the Services as soon as practicable after the termination
of this Agreement, (c) and comply with Gateway's reasonable instructions to
otherwise cause and assist the orderly transition and migration of the
Services from Vsource to Gateway or a third party service provider as
directed by Gateway.
3.4 Termination of this Agreement does not affect the accrued rights and
obligations of a party hereunder at the time of termination. Sections 3.3,
4 (as to accrued Fees and Taxes and interest thereon), 5.4(b), (g) and (h),
8.3, 11, 12, 13, 15, 17, 18, 20, 21 and 22.2 will survive the termination
of this Agreement and continue in full force and effect.
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3.5 Vsource acknowledges that Gateway's critical business operations are
reliant on the continuity of the provision of the Services under this
Agreement. Vsource will not, and warrants and represents that it will not,
withhold the Services due to any dispute arising out of or in relation to
this Agreement, unless the Agreement is terminated by Vsource in accordance
with this Agreement.
4. FEES
4.1 Vsource will invoice Gateway twice a month, on the 15th day of the month
and on the last day of the month, for Fees incurred during the invoiced
period. If the 15th day or last day of a month is not a day that banks in
Kuala Lumpur, Malaysia would be open for business, then Vsource shall
invoice Gateway on the next day that such banks would be open. All Fees
will be priced and invoiced in US dollars.
4.2 During the first six months of this Agreement, payment from Gateway on each
invoice is due within 15 days after the date of the invoice, and thereafter
payment from Gateway is due within 30 days after the date of an invoice.
Interest for late payment will accrue on overdue invoices at the rate of
[*Confidential information omitted and filed separately with the Securities
and Exchange Commission] per annum from the due date until the date of
payment (whether before or after judgment). Interest shall accrue
notwithstanding termination of this Agreement for whatever reason, except
if terminated by Gateway pursuant to Section 3.2(a) or 3.2(e)(i) or (ii).
4.3 Gateway acknowledges and agrees that the Fees do not include any Taxes. If
Gateway is or was required by law to make any deduction or withholding for
Taxes from any payment due under this Agreement, then notwithstanding
anything to the contrary in this Agreement, the gross amount payable by
Gateway to Vsource will be increased so that, after any such deduction or
withholding for Taxes, the net amount received by Vsource will not be less
than the amount Vsource would have received had such deduction or
withholding not been required. Gateway will not be responsible for
reimbursing or grossing up Vsource for any Taxes on any fees payable by
Vsource to its Sub-contractors.
4.4 Upon execution of this Agreement, Gateway will pay the Advance Amount to
Vsource as an advance payment of Fees expected to be payable under over the
term of this Agreement. Beginning [*Confidential information omitted and
filed separately with the Securities and Exchange Commission], Vsource will
[*Confidential information omitted and filed separately with the Securities
and Exchange Commission]. Vsource and Vsource Parent agree that the Advance
Amount will only be used for working capital purposes and not for any other
purpose, including payment to shareholders, related parties (other than
Affiliates that are Sub-contractors), or creditors (excluding
Sub-contractors). Vsource Parent unconditionally and irrevocably guarantees
the repayment obligations of Vsource under this Section 4.4. In the event
that some or all of the Advance Payment is due and owing to Gateway upon
the termination of this Agreement in accordance with Section 3, then such
amount shall be paid to Gateway by Vsource or Vsource Parent within 15 days
after the date of termination.
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5. OBLIGATIONS OF VSOURCE
5.1 Vsource shall provide each of the Services described in Schedule 1 on and
from the Effective Date in the Territory as required to support the
Warranty for each Gateway Product. Vsource shall perform the Services in
accordance with the Service Levels set out in Schedule 4.
5.2 Vsource represents and warrants that it and its Sub-contractors shall: (i)
perform the Services with reasonable skill and care in accordance with the
Service Levels; (ii) comply with all applicable laws and regulations in the
performance of its obligations hereunder; (iii) be responsible for
obtaining and maintaining all necessary licences, permits, registrations
and consents from the relevant authorities in the Territory to provide the
Services; and (iv) ensure that all personnel assigned to the performance of
its obligations hereunder will have all the skill, experience,
qualifications and knowledge reasonably necessary to carry out the tasks
assigned to them and will adopt reasonable and proper standards of
behaviour. Vsource agrees that Gateway will have no liability to it for any
former Gateway employees who are employed by Vsource and hereby releases
and discharges Gateway from any liability in this regard.
5.3 Vsource represents and warrants that it has taken all requisite corporate
and other action to approve the execution, delivery and performance of this
Agreement and agrees to produce to Gateway evidence of such action upon
reasonable request.
5.4 (a) Vsource shall, with effect from the Effective Date, (i) be solely
responsible for all fees and expenses incurred under the Existing
Gateway Sub-contracts and (ii) observe and perform all of Gateway's
obligations under the Existing Gateway Sub-contracts as though Vsource
was an original party thereto in place of Gateway. Gateway shall be
entitled to reimbursement of or credit for any such fees and expenses
it pays on behalf of Vsource. All fees and expenses accruing prior to
the Effective Date under the Existing Gateway Sub-contracts shall be
the sole obligation of Gateway.
(b) Gateway shall indemnify Vsource for all damages, costs (including
legal costs on an indemnity basis) and expenses suffered or incurred
by Vsource, directly or indirectly, as a result of any claims or
damages arising from a cause of action relating to any Existing
Gateway Sub-contractor or any Existing Gateway Sub-contract that
occurred prior to the Effective Date. Vsource and Vsource Parent shall
jointly and severally indemnify Gateway against all losses, damages,
liabilities, claims, and expenses (including but not limited to legal
costs on an indemnity basis) whatsoever incurred by Gateway arising
from a cause of action relating to any Existing Gateway
Sub-contractor, any Existing Gateway Subcontract, any contract between
Vsource and a Sub-contractor, or provision of the Services that
occurred after the Effective Date.
(c) Gateway shall use its reasonable endeavours to procure the novation or
assignment of each Existing Gateway Sub-contract to Vsource or a
designated Affiliate thereof as soon as practicable after the
Effective Date. Except as specified in Section 5.4(d), Vsource and
Gateway shall each bear its own legal costs incurred in the novation
or assignment of any Existing Gateway Sub-contract; provided, that
Gateway shall bear all stamp duties and other similar taxes relating
to such novation or assignment.
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(d) Vsource shall, and shall procure that any relevant Affiliate shall,
execute all documents and do all things necessary as reasonably
required by Gateway for the purpose of novating or assigning, as the
case may be, the Existing Gateway Sub-contracts to Vsource or a
designated Affiliate; provided, that if any additional costs or fees
are required to be paid to an Existing Gateway Sub-contractor that are
in the nature of inducements to cause such Existing Gateway
Sub-contractor to consent to the novation or assignment, including
without limitation deposits or advance payments or legal fees incurred
by an Existing Gateway Sub-contractor in connection with the novation
or assignment, such costs or fees shall be borne solely by Gateway,
and if Gateway is not willing to bear such costs or fees with respect
to an Existing Gateway Sub-contract, then Vsource shall not be
obligated to consent to the novation or assignment of such Existing
Gateway Sub-contract or assume any of Gateway's or its Affiliate's
obligations thereunder. In the event that Gateway bears any such costs
or fees and such costs or fees represent advance payments,
prepayments, deposits or the like, to the extent that such monies are
not directly repaid by the Existing Gateway Sub-contractor to Gateway,
Vsource shall be required to repay such amounts to Gateway within 15
days of the date that any such monies are repaid by the Existing
Gateway Sub-contractor to Vsource or such advance payments are drawn
down on by Vsource.
(e) In the event that Gateway, for any reason whatsoever, is unable to
procure the novation or assignment of an Existing Gateway Sub-contract
to Vsource or a designated Affiliate thereof, Vsource shall enter into
an arrangement, as Gateway deems reasonably appropriate, with Gateway
for all of the expenses and fees arising after the Effective Date
under such Existing Gateway Sub-contract to be borne directly by
Vsource and to require Vsource to observe and perform all of Gateway's
obligations under such Existing Gateway Sub-contract as though Vsource
was an original party thereto in place of Gateway.
(f) Prior to the execution of any agreement with a Sub-contractor, Vsource
shall provide Gateway with a copy of the proposed final agreement at
least three business days prior to the execution of such agreement.
Vsource shall thereafter provide Gateway with a copy of each agreement
it executes with a Sub-contractor and with any subsequent
modifications, revisions, or amendments thereto. Vsource shall include
in each agreement it executes with a Sub-contractor a provision
permitting Vsource to assign such agreement to Gateway without the
consent of the Sub-contractor, and upon or following the termination
of this Agreement in accordance with Section 3 Vsource shall so assign
the contract to Gateway if instructed to do so by Gateway in writing.
(g) No Gateway-owned Microsoft Certificates of Authenticity or physical
product may be held by or at Vsource or a Sub-contractor without
Gateway's prior written approval.
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(h) With respect to any "upselling" activities to customers in which
Vsource may propose to engage, Vsource shall provide Gateway with
prior written notice and shall ensure that such activities comply with
all relevant local laws and its obligations under this Agreement,
including with respect to privacy laws, and that it shall have the
sole warranty and support responsibility for such sales.
6. GATEWAY'S Obligations
6.1 Gateway represents and warrants that:
(a) The Customer Database is true and complete to the best of its
knowledge;
(b) It has provided Vsource with a true executed copy of each Existing
Gateway Sub-contract;
(c) It has taken all requisite corporate and other action to approve the
execution, delivery and performance of this Agreement and agrees to
produce to Vsource evidence of such action upon reasonable request.
6.2 Gateway represents that all Warranty Contact Details are valid and in
effect as of the Effective Date and, with respect to those Warranty Contact
Details that are not assigned or transferred to Vsource, Gateway shall
ensure that inquiries to such Warranty Contact Details will be
automatically routed to a Vsource technical support service center. If any
Warranty Contact Details become invalid during the term of this Agreement,
Gateway shall promptly notify Vsource and each affected end customer and
provide each affected end customer with new Warranty Contact Details that
comply with this Section 6.2.
6.3 Gateway acknowledges that the support and co-operation of Gateway and its
Affiliates is required by Vsource and its Sub-contractors in order for them
to provide the Services and perform their obligations under this Agreement
efficiently and effectively. Gateway therefore agrees to provide its, and
to procure that its Affiliates provide their, support and co-operation to
Vsource and its Sub-contractors as reasonably required to perform the
Services and perform their obligations under this Agreement, especially in
ensuring that Vsource and its Sub-contractors are able to gain access to
personnel and information of Gateway and its Affiliates as reasonably
required from time to time. In this regard, Gateway and Vsource agree to
negotiate in good faith as to the transfer of the lease of Gateway's call
center in Osaka, Japan, and the assets contained therein, terms to be
agreed in a separate contract.
6.4 Gateway agrees to use its best efforts to transfer its license of Primus, a
knowledge base application utilized in Japan, to Vsource. On or after the
Effective Date, Gateway will configure its technical support web sites for
countries in the Territory such that emails sent to such web sites will be
automatically routed to mailboxes designated by Vsource.
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7. REPORTING
7.1 Vsource will provide the reports listed in Schedule 7 to Gateway at the
times set forth therein. All reports prepared by Vsource under this section
and the results of such reports will be regarded as Confidential
Information for purposes of this Agreement.
7.2 Subject to restrictions under the federal securities laws and regulations
of the United States, and any other jurisdiction to which a party is
subject, each party will periodically update the other party on its and its
Affiliates' financial condition and business operations, including material
adverse developments. In particular, each party will inform the other party
if it reasonably expects that (1) it will file for or have instituted
against it any proceedings as to its bankruptcy, insolvency,
reorganization, judicial management, receivership, liquidation,
dissolution, or listing on a stock exchange; (2) there will be an
assignment for the benefit of creditors; or (3) it will cease doing
business.
8. SPARE PARTS; EQUIPMENT
8.1 On or prior to November 1, 2001, Gateway will sell the Parts and Equipment,
in the quantities set forth in Schedule 6 to this Agreement, to Vsource for
[*Confidential information omitted and filed separately with the Securities
and Exchange Commission]. Gateway will deliver, [*Confidential information
omitted and filed separately with the Securities and Exchange Commission],
all of the Parts and Equipment to locations designated by Vsource. Gateway
warrants that: (a) the types of Parts set forth in Schedule 6 are
sufficient for Vsource to meet its repair and replace obligations during
the term of this Agreement, and (b) the Parts will conform to Gateway's
Warranty and the relevant manufacturer's warranty for the term of this
Agreement. Gateway will, at its own cost, repair or replace, or reimburse
Vsource for the replacement cost of, any defective or non-conforming Parts.
8.2 Gateway shall provide Vsource with a schedule setting forth each Part and
Removed Part that is covered by a manufacturer's warranty. Gateway shall
cause each manufacturer to repair or replace Parts or Removed Parts
returned to such manufacturer by Vsource to the same extent and in the same
manner as if such Parts or Removed Parts had been returned by Gateway.
8.3 Once a Part has been sold and delivered to Vsource, title to such Part
shall vest in Vsource, and Vsource shall bear the entire risk of loss or
damage, including shrinkage, and any storage costs, for any Parts from the
moment Vsource takes possession of that Part (which shall be deemed to be
the time that a Part is delivered by Gateway to a location designated by
Vsource). In the event this Agreement is terminated before the end of the
Term, Vsource shall within 15 days of the date of termination sell any
remaining Parts and Equipment it purchased from Gateway back to Gateway at
[*Confidential information omitted and filed separately with the Securities
and Exchange Commission] and shall reasonably cooperate with Gateway in
transferring such Parts and Equipment to facilities designated by Gateway.
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8.4 Title in each Removed Part shall vest in Vsource once such Removed Part has
been removed from a Gateway Product and replaced. Vsource shall bear all
costs relating to the return and repair of such Removed Parts. Vsource may
use any vendor it chooses, including Gateway or any Affiliate thereof, to
repair or replace any Removed Parts.
9. TECHNICAL INFORMATION AND TRAINING
9.1 Gateway has furnished to Vsource, without charge, such reasonable
quantities of Technical Information as are necessary for Vsource and its
Sub-contractors to properly perform the Services. On or prior to the
Effective Date, Gateway will permit Vsource to transfer to its systems the
following data and materials relating to the Gateway Products: (i) contents
of Gateway's Asian, Australian/New Zealand, and Japan intranets; (ii) all
English- and Japanese-language knowledge bases (in a format mutually agreed
upon by Vsource and Gateway); and (iii) all English- and Japanese-language
training materials. Gateway authorizes the Existing Gateway Sub-contractors
to duplicate and provide Vsource with any Technical Information that
Gateway has heretofore provided to such Existing Gateway Sub-contractors.
Gateway will render to Vsource further updates to all Technical Information
provided hereunder from time to time promptly after such updates become
available. Upon termination of this Agreement, the Technical Information
shall, upon written request by Gateway, be destroyed or returned to Gateway
at Gateway's option. Technical Information shall be considered Confidential
Information for purposes of this Agreement.
9.2 Gateway hereby grants Vsource the right to modify, incorporate, duplicate,
reproduce and distribute Technical Information to its employees and its
Sub-contractors (i) for internal training purposes and (ii) as reasonably
required to provide the Services; provided, that any modifications shall
not render the Technical Information incomplete or inaccurate. Vsource
shall provide the said modified documentation to Gateway for approval ten
(10) days prior to distribution to its employees and Sub-contractors.
Vsource shall not distribute nor render the training material or copies of
the same to any third party whatsoever (other than Sub-contractors).
9.3 Gateway represents and warrants that the training that it has provided to
Vsource with respect to the Gateway Products is reasonably adequate for
Vsource to provide the Services.
9.4 In relation to the provision of Services in Australia, Gateway will train
Vsource and its Sub-contractors in accordance with its Trade Practices Act
compliance manual and obligations. Vsource will make available, at no cost
to Gateway, all its personnel that provide Services in Australia to receive
such training and will assure that such personnel attend such training.
Vsource will ensure that it and its employees and Sub-contractors act in
accordance with Gateway's Trade Practices Act compliance program and comply
with the provisions of Trade Practices Xxx 0000 (Cth) (or equivalent
legislation) and will ensure that neither itself nor its employees or
Sub-contractors cause Gateway to be in contravention of the provisions of
Trade Practices Act (or equivalent legislation).
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9.5 Vsource acknowledges that Gateway will require Vsource and its
Sub-contractors to refer certain customer inquiries to third parties for
resolution, including with respect to internet access service (Japan and
Australia), recycling (Japan), and trade-in programs. Vsource and Gateway
jointly acknowledge the need to develop a mutually agreeable customer
escalation process. Both parties agree to put in place such procedures and
to monitor them to ensure satisfactory operation.
10. AUDITS
10.1 Vsource shall establish and maintain at its own costs a bookkeeping,
accounting, record keeping, and records retention system consistent with
generally accepted accounting principles. Vsource shall keep full,
complete, accurate, and updated records pertaining to its operations and
the performance by Vsource and its Sub-contractors pursuant to this
Agreement. Vsource shall allow Gateway personnel, upon reasonable notice
and during normal business hours, to review and audit Vsource's facilities,
operations, books, and records to confirm compliance with the requirements
of this Agreement. Vsource and Vsource Parent shall, within six months
after the close of their respective financial years, provide Gateway with a
set of its annual audited financial statements prepared in accordance with
generally accepted accounting principles.
11. TRADEMARKS
11.1 Gateway grants Vsource a non-exclusive non-transferable license to use,
without cost, the Gateway Marks during the term of this Agreement, solely
for the purpose of performing its obligations under this Agreement. Vsource
shall not assign, sublicense, make available or otherwise transfer or
disclose any right to use, develop or otherwise enjoy any of the Gateway
Marks without the prior written consent of Gateway. Vsource agrees not to
alter the trademarks, trade names, copyright notices and designs of any
Gateway Product. Vsource acknowledges and agrees that Gateway retains all
of its right, title and interest in and to the Gateway Marks and all use of
the Gateway Marks by Vsource shall inure to the benefit of Gateway. Gateway
retains the right to specify and approve the quality and standards of all
materials or any website in which the Gateway Marks are displayed and to
inspect, from time to time, samples of such materials. Vsource shall not at
any time during or after this Agreement, assert any claim or interest in or
do anything which may adversely affect the validity or enforceability of
any of the Gateway Marks. Vsource shall not register, seek to register or
cause to be re-registered any of Gateway's trademarks, logos, copyrights,
including the Gateway Marks, without Gateway's prior written consent.
Vsource shall not adopt or use such trademarks, trade names, logos or
insignias or any confusingly similar work or symbol as part of Vsource'
company or partnership name. Vsource agrees to endeavor to report to
Gateway all infringement or improper or unauthorized use of Gateway's
trademarks, trade names, logos or insignia including the Gateway Marks
which comes to the attention of Vsource.
11.2 Vsource grants Gateway a non-exclusive license to use, without cost, the
Vsource Marks during the term of this Agreement, solely for the purpose of
performing its obligations under this Agreement. Gateway acknowledges and
agrees that Vsource retains all of its right, title and interest in and to
the Vsource Marks and all use of the Vsource Marks by Gateway shall inure
66
to the benefit of Vsource. Vsource retains the right to specify and approve
the quality and standards of all materials or any website in which the
Vsource Marks are displayed and to inspect, from time to time, samples of
such materials. Gateway shall not at any time during or after this
Agreement, assert any claim or interest in or do anything which may
adversely affect the validity or enforceability of any of the Vsource
Marks. Gateway shall not register, seek to register or cause to be
re-registered any of Vsource's trademarks, logos, copyrights, including the
Vsource Marks, without Vsource's prior written consent. Gateway shall not
adopt or use such trademarks, trade names, logos or insignias or any
confusingly similar work or symbol as part of Gateway's company or
partnership name. Gateway agrees to endeavor to report to Vsource all
infringement or improper or unauthorized use of Vsource's trademarks, trade
names, logos or insignia including the Vsource Marks which comes to the
attention of Gateway.
11.3 Notwithstanding Section 11.1, Vsource is not permitted to register a domain
name which incorporates any of the Gateway Marks unless Vsource obtains
prior written consent from Gateway and only subject to any conditions
Gateway may impose. Gateway hereby consents to the use of the domain name
"Xxxxxxx0X.xxx" by Vsource and its Sub-contractors when responding to email
inquiries from customers of Gateway Products.
12. INDEMNIFICATION
Vsource and Vsource Parent shall jointly and severally indemnify, defend
and hold harmless Gateway, its Affiliates and their respective officers,
directors, employees, and contractors (each such person, an "Indemnified
Person") from and against any and all damages, penalties, losses,
liabilities, judgments, settlements, awards, costs and expenses (including
reasonable attorneys' fees), arising out of or related to any claims,
assertions, demands, causes of action, suits, proceedings or other actions,
whether at law or in equity ("Claims"), alleging (i) that any Service, or
the use of any part thereof infringes, misappropriates or violates any
patent, copyright, trademark, trade name, trade secret or other
intellectual property right of a third party, (ii) that the Services, or
that Vsource or its employees, violates any applicable law, rule,
regulation or judicial or administrative order, (iii) any injury (including
death) or damage to a person or tangible personal property solely to the
extent it arises out of or is in connection with the performance of the
Services and is proximately caused by Vsource or any person, firm or
corporation directly or indirectly employed or engaged by Vsource to
perform the Services, (iv) that Vsource and/or its Sub-Contractors failed
to comply with the Service Levels, (v) that Vsource has materially breached
any of its representations, warranties, covenants or obligations under this
Agreement, or (vi) any actions, omissions, and/or performance of Vsource's
Sub-Contractors and/or their agents and employees (including Existing
Gateway Sub-Contractors) from and after the Effective Date. Gateway shall
provide timely written notice of any Claim described in this Section 12,
and provide reasonable information and assistance to Vsource, at Vsource's
expense, in the defense or settlement of such Claim. Gateway, at its option
and cost, may be represented by and participate through its own counsel in
such suit, action, proceeding, or settlement. Vsource shall not agree to
any settlement or other resolution of any claim that adversely impacts
Gateway without the prior written consent of Gateway.
67
13. LIMITATION OF LIABILITY
13.1 EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED BY IT HEREIN, EACH PARTY
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
13.2 IN NO EVENT WILL ANY OF VSOURCE, VSOURCE PARENT OR GATEWAY, OR ANY OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES AND
SUB-CONTRACTORS, BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR
INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS OR
SAVINGS, RESULTING FROM ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE OR OTHER
TORTS, PRODUCT DEFECTS OR MALFUNCTIONS OR THE BREACH OF THIS AGREEMENT, IN
EITHER CASE REGARDLESS OF THE FORM OF LEGAL ACTION AND EVEN IF SUCH PERSON
HAS BEEN NOTIFIED OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES.
13.3 UNLESS OTHERWISE PROVIDED ELSEWHERE IN THIS AGREEMENT, NONE OF VSOURCE,
VSOURCE PARENT OR GATEWAY SHALL BE LIABLE FOR ANY LOSS OR DAMAGES, WHETHER
ARISING IN CONTRACT, TORT OR OTHERWISE, IN EXCESS OF US$10,000,000;
PROVIDED, THAT THE FOREGOING LIMITATION SHALL NOT OPERATE TO EXCLUDE OR
RESTRICT ANY PERSON'S LIABILITY FOR LOSS OR DAMAGES ARISING FROM SUCH
PERSON'S INTENTIONAL MISCONDUCT OR FOR DEATH OR PERSONAL INJURY RESULTING
FROM SUCH PERSON'S GROSS NEGLIGENCE.
14. INSURANCE
The parties acknowledge that Vsource has provided Gateway with information
on (and shall follow up with copies of certificates of insurance evidencing
the same) its insurances which are currently in effect that provide Vsource
coverage for damages arising out of physical injury or damage caused either
directly or indirectly by the acts, errors or omissions (negligent or
otherwise) of Vsource, its Sub-contractors or its or their employees, in
the performance of the Services and Vsource's obligations under this
Agreement. Vsource agrees that during the term of this Agreement, it shall
not cancel or reduce the coverage of or otherwise modify the terms of such
insurances in any respect that would have a material adverse impact on
Gateway including coverage limits and deductibles without the prior written
approval of Gateway.
15. U.S. EXPORT CONTROLS
The parties refer to the U.S. Export Administration Regulations ("EAR") and
the Commerce Control list therein. The parties agree that they will not
re-export any technical data or software programs received from the other
party or any direct products thereof without first obtaining the permission
of the U.S. Department of Commerce or State, either in writing or as
provided by an applicable regulation. Such permission is required in
68
addition to any authorization required to be obtained from the other party.
The parties agree that they shall not use or transfer without U.S.
Government permission U.S. Origin products, technology, or software of any
type if the party knows that the products, technology, or software will be
used in the design, development, production, or use of missiles, chemical
or biological weapons, sensitive nuclear end uses in certain specific
countries of concern designated from time to time by the Commerce
Department in Part 778 of the U.S. Export Administration Regulations, as
amended from time to time. This requirement shall survive the term or
termination of this Agreement.
16. RELATIONSHIP MANAGEMENT; NOTICES
16.1 Vsource and Gateway shall each designate a person who shall be its point of
contact with respect to all matters relating to the Services and terms and
conditions of this Agreement. Unless and until notice is given otherwise,
such point of contact shall be:
For Vsource or Vsource Parent: For Gateway:
--------------------------------- ------------
c/o NetCel360 Sdn Bhd Gateway Japan, Inc.
Level 12, Wisma Kia Peng 000 Xxxxxxx Xxxxx
No. 3, Jalan Kia Peng Xxxxx Xxxxx Xxxx, XX 00000-0000
00000 Xxxxx Xxxxxx, Xxxxxxxx USA
Attn: Chief Operating Officer Attn: Xxxx Xxxxxxxx
Tel: 0-00-0000-0000 Tel: (000) 000-0000
Fax: 0-00-0000-0000 Fax: (000) 000-0000
With a copy to:
Gateway Companies, Inc.
00000 Xxxxxxx Xxxxx
Xxxxx, XX 00000
XXX
Attn: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
16.2 Gateway or Vsource, as the case may be, may designate another person to
perform such function and shall notify the other party in writing of the
name and contact details of such person.
16.3 Any notice under or in connection with this Agreement shall be in writing
and shall be: (i) delivered personally; (ii) sent by courier or registered
mail, proper postage prepaid; or (iii) sent by fax, with electronic
confirmation. Notice is deemed to have been duly given: (i) if delivered
personally, when left at the address referred to in Section 16.1; (ii) if
by courier, one day after posting it and if by registered mail, seven days
after posting it; and (iii) if sent by fax, on completion of transmission
by the recipient.
69
17. CONFIDENTIALITY
In negotiating and implementing this Agreement, each party ("Disclosing
Party") may transmit to the other party ("Receiving Party") certain
proprietary and confidential information. Receiving Party agrees that, for
the subsistence of this Agreement and a period of three (3) years after
expiration or termination of this Agreement, it shall not disclose any
information it receives from Disclosing Party that is marked either
CONFIDENTIAL, PROPRIETARY, STRICTLY PRIVATE, or INTERNAL DATA, or, if
presented orally or visually, is described as being confidential,
proprietary, strictly private or internal only (collectively "Confidential
Information"), to any other third party, person, corporation or entity; nor
shall Receiving Party use Confidential Information for its own benefit,
except as provided herein. Receiving Party will limit disclosure of
Confidential Information to those officers, directors, employees, agents or
sub-contractors having a reasonable need to know of such Confidential
Information. Receiving Party acknowledges that each of its officers,
directors, employees, agents and sub-contractors shall be obligated by this
Agreement to protect any Confidential Information. Any reliance on
Confidential Information disclosed hereunder is at Receiving Party's own
risk. Nothing contained in this Section 17 shall grant or imply any rights
by license, estoppel or otherwise. Confidential Information as used herein
does not include information which: (i) is in the public domain at the time
of its disclosure or which enters the public domain at any time after such
disclosure through no fault of Receiving Party, (ii) is generally disclosed
to third parties by Disclosing Party without restriction, (iii) is
communicated to Receiving Party by a third party having a right to do so
without restriction on nondisclosure, or (iv) is approved for release by
written authorization of Disclosing Party. Notwithstanding the foregoing,
Receiving Party may disclose Confidential Information without the
authorization of Disclosing Party if disclosure is required by law, a
governmental or regulatory authority having jurisdiction over Receiving
Party or a stock exchange on which the securities of Receiving Party are
listed; provided, that Receiving Party shall disclose only the minimum
portion of the Confidential Information which is legally required to be
disclosed; and provided, further, that in such circumstances, Receiving
Party shall provide Disclosing Party with as much advance written notice as
practicable and shall make reasonable efforts to preserve the
confidentiality of the Confidential Information, including, without
limitation, by cooperating with Disclosing Party to obtain an appropriate
protective order or other reliable assurance that confidential treatment
will be accorded the Confidential Information. Vsource shall ensure that
each Sub-contractor is bound by obligations of confidentiality no less
onerous than as provided in this section. Upon termination of this
Agreement, each party must return or destroy (at the other party's option
and cost) all Confidential Information of the other party and must provide
a declaration from an officer certifying compliance with this section.
18. PROVISION OF INFORMATION
18.1 Gateway acknowledges that it is transferring to Vsource and its
Sub-contractors Personal Information relating to end users of Gateway
Products and represents and warrants that such transfer is in compliance
with all applicable laws and regulations, and Gateway has obtained any
license, consent, permit and authorisation necessary to permit such
transfer. The parties agree that such Personal Information is Confidential
Information and will be subject to Section 17. Gateway hereby authorizes
70
Vsource to disclose and transfer the Personal Information to its Affiliates
and Sub-contractors, and their respective officers, employees and agents,
including those outside of the jurisdiction in which an end user is located
in order that such Affiliates and Sub-contractors may perform the Services.
18.2 Vsource agrees, in respect of Personal Information held in conjunction with
this Agreement: (a) to use Personal Information only for the purposes of
fulfilling its obligations under this Agreement; (b) not to disclose
Personal Information without the written authority of the customer or as
required by law and to immediately notify the customer where it becomes
aware that a disclosure of Personal Information may be required by law; (c)
to comply with the obligations set out in any legislation in force in any
relevant jurisdiction during the term concerning privacy or data protection
and for that purpose to negotiate in good faith in relation to any
amendments required to this Agreement to achieve that compliance; (d) to
ensure that each person engaged by Vsource or any Sub-contractor who has
access to any Personal Information will not access, use, disclose, or
retain Personal Information under this Agreement except in performing their
duties of engagement; (e) to immediately notify Gateway when Vsource
becomes aware of a breach of clauses (a) to (d) by itself or any
Sub-contractor; and (f) to co-operate with any reasonable requests or
directions of Gateway arising directly from or in connection with a law of
any jurisdiction concerning the security, use, or disclosure of Personal
Information.
18.3 Vsource indemnifies Gateway in respect of any liability, loss, or expense
incurred by Gateway to the extent that such liability, loss, or expense was
caused by a breach of the obligations of Vsource under Sections 17 or 18 of
this Agreement.
19. Force Majeure
Should either party be prevented, hindered or delayed from or in performing
any of its obligations under this Agreement by a Force Majeure Event, such
obligations will be suspended while the Force Majeure Event continues and
such party will not be deemed to be in breach of this Agreement. The party
claiming a Force Majeure Event shall diligently seek to overcome such Force
Majeure Event.
20. ANNOUNCEMENTS/PUBLICITY
Gateway agrees that Vsource and Vsource Parent may publicly refer to
Gateway and or Gateway, Inc., orally and in writing, as a customer and may
list the name "Gateway" and the Gateway Marks in any non-descriptive list
of customers of Vsource, including in Vsource's website, its sales
materials and the "About Vsource" section of Vsource's press releases.
Vsource agrees that Gateway may publicly refer to Vsource, orally and in
writing, as a vendor and may use the Vsource Marks in connection therewith.
From the Effective Date, any other reference to the other party by either
party, including any details of this Agreement or the Services, whether in
the form of a press release or otherwise, or any other use of the other
party's logo, trade name, trademark or service xxxx, may be made only with
such other party's prior written consent.
71
21. DISPUTE RESOLUTION
With the exception of (i) disputes involving breach of confidentiality,
infringement of a party's intellectual property, or other types of
irreparable harm for which injunctive relief through the courts is sought
by either party, or (ii) as otherwise provided in this Section 21, neither
party shall resort to legal remedies or commence any formal proceedings to
resolve a dispute under this Agreement until the parties have attempted to
resolve the dispute through the escalation process described in this
Section 21. The party raising a dispute shall submit to the other party a
written notice and supporting material describing all issues and
circumstances related to the dispute (a "Dispute Notice"). The designated
primary representative of each party shall attempt to resolve the dispute.
If the parties' primary representatives fail to resolve the dispute within
15 days from receipt of a Dispute Notice, a Senior Vice President or
higher-level officer of each party shall attempt to resolve it. If the
Senior Vice Presidents (or higher-level officers) of the parties are unable
to resolve the dispute within 30 days from receipt of the Dispute Notice,
either Party may commence formal legal proceedings in accordance with
Section 22.2 below to resolve the dispute. This Section 21 shall not be
construed to prevent a party from instituting formal proceedings earlier
than indicated in this Section 21 to: (A) avoid the expiration of any
applicable limitations period, or (B) preserve a superior creditor position
22. MISCELLANEOUS
22.1 Neither party may assign or transfer any right or obligation under this
Agreement without the prior written consent of the other party. If consent
is given, this Agreement shall be binding upon and inure to the benefit of
the assigns.
22.2 This Agreement and any Statements of Work shall be governed by and
interpreted in accordance with the laws of the State of New York, USA,
without giving effect to the conflict of laws principles thereof. Any
proceeding to enforce or resolve a dispute relating to this Agreement or
any Statement of Work must be brought exclusively in a state or federal
court in the State of New York, USA. The parties hereby irrevocably waive
any present and future objection to any such venue, and irrevocably consent
and submit unconditionally to the exclusive jurisdiction for itself and in
respect of any of its property in such court. The parties further agree
that final judgment against it in any such action or proceeding arising out
of or relating to this Agreement or any Statement of Work shall be
conclusive and may be enforced in any other jurisdiction within or outside
the United States of America by suit on the judgment, a certified or
exemplified copy of which shall be conclusive evidence of the fact and of
the amount of the obligation.
THE PARTIES EACH HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE
ARISING OUT OF, OR IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP BETWEEN THEM ESTABLISHED BY THIS AGREEMENT, ANY STATEMENT OF
WORK AND ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT ENTERED INTO IN
CONNECTION WITH THIS AGREEMENT, ANY STATEMENT OF WORK OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
72
22.3 This Agreement, together with any schedules and exhibits referred to
herein, constitutes the entire agreement, and supersedes any previous
agreements, between the parties relating to the subject matter of this
Agreement.
22.4 Unless otherwise expressly provided for herein, this Agreement may be
amended or modified only in writing upon the agreement of both parties.
22.5 A failure to exercise or delay in exercising a right or remedy provided by
this Agreement or by law does not constitute a waiver of the right or
remedy or a waiver of other rights or remedies. No single or partial
exercise of a right or remedy provided by this Agreement or by law prevents
a further exercise of the right or remedy or the exercise of another right
or remedy.
22.6 Vsource will provide the Services to Gateway as an independent contractor,
and not as an employee, officer or agent of Gateway or as its general
partner. In addition, nothing in this Agreement will constitute the parties
an association, joint venture or partnership.
22.7 This Agreement may be executed in any number of counterparts, each of which
when executed and delivered is an original, but all the counterparts
together constitute the same document.
22.8 Each party shall do and execute, or arrange for the doing and executing of,
each necessary act, document and thing reasonably within its power to
implement this Agreement.
22.9 If any provision of this Agreement is held to be invalid, illegal,
unenforceable, in whole or in part, the remaining provisions shall be
unimpaired, and the invalid, illegal or unenforceable provision shall be
replaced by a mutually acceptable provision, which being valid, legal and
enforceable, comes closest to the economic effect and intention of the
parties hereto underlying the invalid, illegal or unenforceable provision.
73
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
VSOURCE (CI) LTD
By: /S/ XXXXXXX X. XXXXX
----------------------------------
Name: XXXXXXX X. XXXXX
Title: Co-Chairman and CEO
VSOURCE, INC.
By: /S/ XXXXXXX X. XXXXX
----------------------------------
Name: XXXXXXX X. XXXXX
Title: Co-Chairman and CEO
GATEWAY JAPAN, INC.
By: /S/ XXXXXX X. XXXXX
----------------------------------
Name: XXXXXX X. XXXXX
Title: Treasurer
74
SCHEDULE 1
DESCRIPTION OF SERVICES
Vsource will provide the following support services to end users ("End User") of
Gateway Products in the Territory in accordance with, and subject to, the terms
and conditions of the Warranties applicable to such Gateway Products and the
service levels specified in Schedule 4 to this Agreement:
-----------
1. TECHNICAL SUPPORT SERVICES
Vsource shall provide technical support by responding to telephone, email,
fax, post, inquiries from field service engineers of Sub-contractors, and
other inquiries from End Users (each, a "Call") to Vsource's technical
support call centers (each, a "Call Center"). All Calls will be answered in
person or, if a telephone call is received outside of the operating hours
specified in Schedule 4 to this Agreement (the "SLAs"), electronically with
----------
voice messaging.
Vsource will, to the extent reasonably practicable, endeavor to identify
itself to End Users as "Gateway" when responding to Calls, including using
"Gateway" in the email domain name when responding to email inquiries.
2. FIELD SERVICES
Vsource shall provide the following field services:
2.1 OnSite Service
Upon the issuance of a service request from a Call Center, Vsource will
arrange for a technician to arrive at an End User's location to make
diagnoses, make repairs and/or replace parts. Vsource will manage on a
daily basis the status of each service request for actions taken, each
service request that cannot be completed at an End User's location and
parts consumption during the course of hardware resolution.
2.2 Return To Base (RTB)
Upon the issuance of a service request from a Call Center, Vsource shall
arrange for an End User's Gateway Product to be delivered to a designated
depot center (a "Depot"), at Vsource's sole cost. At the Depot, Vsource
shall make a diagnosis, make repairs and/or replace the Gateway Product or
parts thereof. Upon the completion of repairs and/or replacement, Vsource
shall arrange for the repaired or replaced Gateway Product to be shipped
back to the End User, at Vsource's sole cost. Vsource will manage on a
daily basis the status of each service request for actions taken, each
service request that cannot be completed by repair or replacement of parts,
and parts consumption during the course of hardware resolution.
75
2.3 Parts Exchange/Parts Only Warranty (POW)
Upon the issuance of a service request from a Call Center, Vsource shall
instruct an End User on how to return parts from such End User's Gateway
Product to a designated logistics location ("Logistics Location") for parts
exchange. On receipt and verification of such returned parts, Vsource will
ship the replacement parts to such End User. Vsource shall bear all costs
associated with shipping parts from an End User to a Logistics Location and
back to the End User. Vsource will manage on a daily basis the status of
each service request for parts only dispatches.
3. PARTS MANAGEMENT
Vsource shall manage the inventory and supply of spare parts necessary to
perform the Services, including as appropriate planning of stockpile
levels, parts return and repair management with OEM manufacturers and/or
third parties performing component repair, and purchase of parts. Vsource
shall bear all costs and risks associated with any acquisition of spare
parts following the Effective Date.
4. EXCLUSIONS
Notwithstanding the foregoing, the Services do not include any support of:
(a) the operating, utility or application software programs (including
customized integrated services applications) installed or included in
the Gateway Products except for configuration of operating systems and
re-installation of operating systems on Gateway Products using (i) in
the case of on-site services, media provided by the End User and (ii)
in the case of RTB services, media provided by Gateway; or
(b) accessories or products purchased by End Users from third party
vendors.
Subject to the terms and conditions of the Agreement, Vsource may undertake
to provide the support services set forth in paragraphs (a) and (b) to End
Users pursuant to separate arrangements entered into between Vsource and
such End Users.
5. ESCALATION PROCESS
Gateway and Vsource shall agree in a separate document no later than the
Effective Date on a process by which:
(a) End User complaints may be managed and escalated with a view towards
minimizing litigation against and the liability of Gateway;
76
(b) End Users that decline to speak with personnel of Vsource or a
Sub-contractor and expressly seek to speak with Gateway may be managed
and escalated to Gateway; and
(c) technical support inquiries that cannot be resolved by technicians of
Vsource or a Sub-contractor may be managed and escalated to Gateway
personnel.
6. OTHER
Gateway and Vsource shall agree on procedures in each market to respond to
End User queries about Gateway or products and services purchased from
Gateway that are beyond the scope of this Agreement, including internet
access, third party hardware and software, recycling, etc. (each, a
"Non-Technical Support Call". Such responses will typically involve
providing the End User with details on how to contact the appropriate third
party who can respond to such queries.
77
SCHEDULE 2
CUSTOMER DATABASE
Customer Database to be provided under separate cover.
78
SCHEDULE 3
SCHEDULE OF FEES
Pricing Schedule (US dollars)
[*Confidential information omitted and filed separately with the Securities and
Exchange Commission]
1. Definitions. For purposes of this Schedule 3, the following terms shall
----------
have the following meanings:
Fixed Pricing: the minimum amount of Fees to be paid by Gateway each month
--------------
Fixed Call Volume: the maximum number of Calls that may be received by Vsource
------------------
each month before Gateway will be charged for Incremental Calls; if the number
of Calls received during a month is less than or equal to the Fixed Call Volume,
then the Fees for such month shall equal the Fixed Pricing for such month
Incremental Calls: each Call received by Vsource during a month in excess of
------------------
the Fixed Call Volume for such month (e.g., if Vsource receives 10,000 Calls
during a month and the Fixed Call Volume for such month is 9,000, then Vsource
has received 1,000 Incremental Calls)
Cost per Incremental Call: the amount that Gateway will be invoiced for each
----------------------------
Incremental Call received by Vsource during a month
Call: each telephone call, email, fax, or postal communication from an End User
----
received by Vsource
2. Assumptions.
email: A Call comprised of an email or series of related emails will be
-----
considered completed when (i) the End User that sent the email informs Vsource
that the problem identified has been resolved or (ii) no response has been
received from such End User within 3 days after the last email sent to such End
User
Toll free calls for Japan: In Japan, 60% of all telephone calls from End Users
--------------------------
will be toll calls and 40% of telephone calls will be toll free calls. If the
number of toll free calls received from End Users during a month exceed 40% of
all telephone calls received from End Users during such month, Vsource shall
invoice Gateway at cost for the incremental toll free charges.
3. Review. Vsource and Gateway shall review the Fixed Call Volumes annually
and will revise the Fixed Call Volumes for the next year as mutually agreed.
Such reviews shall commence no later than 90 days prior to each anniversary of
the Effective Date and conclude within 30 days thereafter. Should the parties,
after negotiating in good faith, be unable to reasonably agree on revisions (if
any) on Fixed Call Volumes for the next year by the 60th day prior to the
anniversary of the Effective Date, then Gateway shall have the right to
terminate this Agreement as of that anniversary of the Effective Date. For the
79
avoidance of doubt, the amounts of the Fixed Pricing and the Cost per
Incremental Call shall not be subject to this review, except that should the run
rate of Fixed Call Volumes (excluding Non-Technical Support Calls and any Calls
relating to Recalled Products per Item 4 of this Schedule 4) immediately
preceding such review exceed 110% of the forecasted Fixed Call Volumes for that
period in any market then the parties agree to negotiate in good faith
reasonable adjustments to the Fixed Pricing, Cost per Incremental Call, Hours of
Operation, and/or Service Level Metrics for the next year in such market.
4. Exclusions. Notwithstanding any of the foregoing in this Schedule 3:
----------
Exception Warranties: Gateway has informed Vsource that certain Gateway
---------------------
Products may be covered by Warranties that (i) require service levels exceeding
the service levels set forth in Schedule 4 of this Agreement or (ii) require the
----------
same service levels as those set forth in Schedule 4 but have different levels
----------
of coverage (e.g., a dedicated engineer) (together, the "Exception Warranties").
The Fees set forth in this Schedule 3 shall not apply to Services performed with
----------
respect to Gateway Products covered by Exception Warranties. Instead, Vsource
shall charge Gateway on a time and materials basis for such Services, at rates
to be mutually agreed between Gateway and Vsource.
Recalls: The Fees set forth in this Schedule 3 shall not apply to Services
------- ----------
provided with respect to a general recall of or repair/replacement of a uniform
defect in Gateway Products, parts thereof or Parts provided under this Agreement
("Recalled Products"). Instead, Vsource and Gateway shall agree upon the fees
to be charged for Services relating to Recalled Products.
5. Years 4 and 5. In the event that the Agreement is renewed in accordance
with its terms, the parties will agree on Service Levels and Fees for each
market in Years 4 and 5 consistent with the review process set forth herein, but
in no event shall aggregate Fees in each market be greater than 75% of the
aggregate Fees paid in such market in Year 3.
6. Currency. All Fees will be priced and invoiced in US dollars.
80
SCHEDULE 4
SERVICE LEVEL AGREEMENTS
Hours of Operation for Technical Support Services (1):
-------------------------------------------------------------
Country Consumer Business Server
------------ ------------- ------------- -------------
9am to 6pm 9am to 6 pm
Japan 24 x 7 Mon - Sat Mon - Fri
------------ ------------- ------------- -------------
Asia
(Malaysia 9am to 8pm 9am to 8pm 9am to 8pm
Time) Mon - Fri Mon - Fri Mon - Fri
------------ ------------- ------------- -------------
Australia
(Eastern 8am to 9pm 8am to 9pm 8am to 9pm
Time) Mon - Fri Mon - Fri Mon - Fri
------------ ------------- ------------- -------------
8:30am to 9pm 8:30am to 7pm 8:30am to 7pm
New Zealand Mon - Fri Mon - Fri Mon - Fri
------------ ------------- ------------- -------------
____________________
(1) All times are local
Service Level Metrics:
------------------------
Years 1-3
---------
ANZ Japan Asia
------------------- ------------------ ------------------
Consumer Business Consumer Business Consumer Business
--------- -------- -------- -------- -------- --------
Average [**] [**] [**] [**] [**] [**]
email
response
Average [**] [**] [**] [**] [**] [**]
speed
to answer
Average talk [**] [**] [**] [**] [**] [**]
time
Average [**] [**] [**] [**] [**] [**]
Abandonment
rate
Average [**] [**] [**] [**] [**] [**]
onsite
attendance
turnaround
Average [**] [**] [**] [**] [**] [**]
81
RTB
repair
turnaround
Average [**] [**] [**] [**] [**] [**]
parts
exchange
turnaround
**Confidential information omitted and filed separately with the Securities and
--------------------------------------------------------------------------------
Exchange Commission
--------------------
Service Level Description and Assumptions:
----------------------------------------------
1. Email Response Time
- The amount of time from receipt of an email from an End User to
the time a Call Center technical support agent responds to such
email, exclusive of hours not within an applicable Call Center's
operating hours
2. Speed to Answer
- The amount of time that an End User calling during Call Center
operating hours is in the queue before being answered by a Call
Center technical support agent
3. Talk Time
- The amount of time a Call Center technical support agent spends
on a Call with an End User before either resolving the Call or
escalating the Call
4. Abandonment Rate
- The percentage of calls from End Users during Call Center
operating hours that are not answered by a Call Center technical
support agent and subsequently abandoned by End Users
5. Onsite Attendance Turnaround
- The number of days from the first working day after the day on
which a service request has been issued to the day that a
technician arrives at an End User's location to perform on-site
services, exclusive of non-business days and days during which
the on-site visit is deferred at such End User's request (e.g.,
if Vsource informs an End User that an on-site technician is
available to arrive on Monday but such End User requests that the
on-site technician not arrive until Thursday, then Monday,
Tuesday and Wednesday would not be included when calculating
Onsite Attendance Turnaround)
82
6. RTB Repair Turnaround
- The number of days from the first working day after the day on
which a Gateway Product arrives at a Vsource Depot to the day
that the repaired or replaced Gateway Product is ready to be
shipped back to the End User, exclusive of non-business days
7. Parts Exchange Turnaround
- The number of days from the first working day after the day on
which a Gateway Product part arrives at a Vsource Logistics
Location to the day that a replacement or repaired part is ready
to be shipped back to the End User, exclusive of non-business
days
Assumptions:
------------
- No Blocked Calls
- Vsource performance of service levels to be reviewed quarterly
- The same Warranty Contact Details will be maintained, with telephone and
telefacsimile numbers being transferred to Vsource
- Options for chargeable support for faster response time
- Hours of operation to be maintained
- All charges inclusive of telecommunication costs
- The parties may adjust Hours of Operation and Service Level Metrics, as
well as related fees, as agreed during the course of this Agreement
Review:
-------
Beginning 90 days prior to the first and second anniversaries of the Effective
Date (and any subsequent anniversaries if this Agreement is renewed in
accordance with its terms), and concluding no later than 60 days prior to each
such anniversary, Vsource and Gateway shall review and mutually agree upon
adjustments to the Hours of Operation and Service Level Metrics set forth in
this Schedule 4. While the parties shall mutually agree upon any increased
-----------
Hours of Operation and Service Level Metrics (e.g., going from [**Confidential
information omitted and filed separately with the Securities and Exchange
Commission]% to [**Confidential information omitted and filed separately with
the Securities and Exchange Commission]% average abandonment rate in Japan),
Gateway shall have the right to direct reduced Hours of Operations and Service
Level Metrics (e.g., going from [**Confidential information omitted and filed
separately with the Securities and Exchange Commission]% to [**Confidential
information omitted and filed separately with the Securities and Exchange
Commission]% average abandonment rates in Japan).
83
SCHEDULE 5
EXISTING GATEWAY SUB-CONTRACTORS
1. Ricoh Technonet Company (Maintenance Service Agreement dated September 1,
1995)
2. Uniadex, Ltd. (Service Agreement dated November 1, 1999)
84
SCHEDULE 6
SCHEDULE OF PARTS
Schedule of Parts to be provided under separate cover.
85
SCHEDULE 7
REPORTS
Reports in the following formats will be provided on a monthly basis:
REPORT NO 1. REPORT FORMAT
------------ -------------
VOLUME - TECHNICAL SUPPORT
-----------------------------
Countries
----------------------------------------
(a) Telephone Volume/Month Asia Australia New Zealand Japan
----------------- --------- --------- ----------- -----
Calls In
----------------- --------- --------- ----------- -----
Calls Answered
----------------- --------- --------- ----------- -----
(b) Email Countries
----------------------------------------
Volume/Month Asia Australia New Zealand Japan
----------------- --------- --------- ----------- -----
Email-Inbound
----------------- --------- --------- ----------- -----
EMAIL CLOSED
----------------- --------- --------- ----------- -----
(c) Non-Tech Support Calls Countries
----------------------------------------
Asia Australia New Zealand Japan
----------------- --------- --------- ----------- -----
Volume/Month
----------------- --------- --------- ----------- -----
(d) Aging Response Time Report Countries
----------------------------------------
Asia Australia New Zealand Japan
----------------- --------- --------- ----------- -----
email
----------------- --------- --------- ----------- -----
tel support
----------------- --------- --------- ----------- -----
on site
----------------- --------- --------- ----------- -----
return to base
----------------- --------- --------- ----------- -----
parts exchange
----------------- --------- --------- ----------- -----
86
Volume - Field Service
Countries
----------------------------------------
No Of Calls/Month Asia Australia New Zealand Japan
----------------- --------- --------- ----------- -----
On Site Calls
----------------- --------- --------- ----------- -----
RTB
----------------- --------- --------- ----------- -----
POW
----------------- --------- --------- ----------- -----
87
REPORT NO. 2 REPORT FORMAT
-------------- --------------
Technical Support - SLA Target Percentage
-----------------------------------------
YEARS 1-3
-------------------------------------------------------------------------------------------------
Countries
-------------------------------------------------------------------------------------------------
Asia Australia New Zealand
---------------------------------- ---------------- ---------------- ----------------- --------
Consumer Business Consumer Business Consumer Business
---------------- ---------------- ---------------- ---------------- ----------------- --------
% Of Target SLA vs Actual Vsource GTW SLA Vsource GTW SLA Vsource GTW SLA Vsource GTW SLA Vsource GTW SLA Vsource
------------------------- ------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
Average email response [**] [**] [**] [**] [**]
------------------------- ------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
Average speed to answer [**] [**] [**] [**] [**]
------------------------- ------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
Average talk time [**] [**] [**] [**] [**]
------------------------- ------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
Average abandonment rate [**] [**] [**] [**] [**]
------------------------- ------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
Average onsite attendance
turnaround [**] [**] [**] [**] [**]
------------------------- ------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
Average RTB repair
turnaround [**] [**] [**] [**] [**]
------------------------- ------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
Average parts exchange
turnaround [**] [**] [**] [**] [**]
------------------------- ------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
Japan
---------------------------------
Consumer Business
------- ---------------- ----------------
% Of Target SLA vs Actual GTW SLA Vsource GTW SLA Vsource GTW SLA
------------------------- ------- ------- ------- ------- -------
Average email response [**] [**] [**]
------------------------- ------- ------- ------- ------- -------
Average speed to answer [**] [**] [**]
------------------------- ------- ------- ------- ------- -------
Average talk time [**] [**] [**]
------------------------- ------- ------- ------- ------- -------
Average abandonment rate [**] [**] [**]
------------------------- ------- ------- ------- ------- -------
Average onsite attendance
turnaround [**] [**] [**]
------------------------- ------- ------- ------- ------- -------
Average RTB repair
turnaround [**] [**] [**]
------------------------- ------- ------- ------- ------- -------
Average parts exchange
turnaround [**] [**] [**]
------------------------- ------- ------- ------- ------- -------
** Confidential information omitted and filed separately with the Securities and
Exchange Commission
88
REPORT NO. 3 REPORT FORMAT
-------------- -------------
------------------------------------------------------------------------------------
COST
Countries
-----------------------------------
Cost Category Asia Australia New Zealand Japan
------------- ---- --------- ----------- ------
Fixed Cost
------------- ---- --------- ----------- ------
Variable Cost
------------- ---- --------- ----------- ------
REPORT NO. 4 REPORT FORMAT
-------------- -------------
TECHNICAL SUPPORT & FIELD SERVICES - BACKLOGS
Countries
-----------------------------------
Asia Australia New Zealand Japan
---- --------- ----------- -----
Email
------------- ---- --------- ----------- ------
Telephone
------------- ---- --------- ----------- ------
Onsite Service
------------- ---- --------- ----------- ------
RTB
------------- ---- --------- ----------- ------
Parts Exchange
------------- ---- --------- ----------- ------
REPORT NO. 5 REPORT FORMAT
-------------- -------------
CUSTOMER COMPLAINTS & ESCALATION
Countries
-----------------------------------
Asia Australia New Zealand Japan
---- --------- ----------- -----
Delay
----- ---- --------- ----------- -----
Customer Complaints [**]
------------------- ----- ---- --------- ----------- -----
[**]
----- ---- --------- ----------- -----
[**]
=================== ===== ==== ========= =========== =====
Escalation * [**]
----- ---- --------- ----------- -----
[**]
----- ---- --------- ----------- -----
[**]
------------------- ----- ---- --------- ----------- -----
*summary of
each escalation
attached
** Confidential information omitted and filed separately with the Securities and
Exchange Commission
89
EXHIBIT A
GATEWAY MARKS
COUNTRY TRADEMARK APPLICATION REGISTRATION
NUMBER NUMBER
-------------- --------------------------------- ------------ ------------
Australia GATEWAY SOLO 677725 677725
Australia VIVITRON 639612 639612
Australia GW2K WORD XXXX 675483 675483
Australia COLORBOOK 638966 638966
Australia GATEWAY 2000 FAMILY PC WORD XXXX 635682 635682
Xxxxxxxxx XXXXXXX 0000 WORD XXXX 560924 560924
Australia BLACK AND WHITE SPOT DESIGN 638965 638965
Australia GATEWAY WORD XXXX
Australia SOLO 675544 675544
Australia DESTINATION 663067 663067
Australia G DESIGN 638964 638964
Australia HANDBOOK 638967 638967
Australia GATEWAY COUNTRY 733273 733273
Australia GATEWAY 2000 COUNTRY 733273 733273
Australia PERFECT SCHOLAR 741829 741829
Xxxxxxxxx XXXXXXX (XXXXX) 000000
Xxxxxxxxx GATEWAY (GREEN BOX ABOVE) 765378 765378
Australia GATEWAY (GREEN BOX LEFT) 765375 765375
Australia GATEWAY COUNTRY (GREEN BOX
ABOVE)
Australia COW SPOTTED BOX 765377 765377
Australia YOUR:)XXXX 772407 772407
Australia GATEWAYNET (WORD XXXX) 774535 774535
Australia GATEWAYNET WELCOME TO YOUR 777473 777473
WEB (DESIGN)
Australia GATEWAYNET (DESIGN) 777472 777472
Australia NET (DESIGN) 777471 777471
Australia GATEWAY PROFILE 780615 780615
Australia GATEWAY NEO 805403 805403
Australia GATEWAY@WORK 825089 825089
Australia TRACTOR SEAT & DESIGN 830999
Australia INTERIOR OF SILO WITH DESK AND 831002
CHAIRS
Australia CORRUGATED BOOTHS & DESIGN 831000
Australia GATEWAY COMMUNICATIONS GROUP 744865
Bangladesh BLACK AND WHITE SPOT DESIGN 00000
Xxxxxxxxxx GATEWAY WORD XXXX 71504
Bangladesh GATEWAY WORD XXXX
Bangladesh SOLO 71503
Bangladesh GATEWAY (GREEN BOX ABOVE) 71662
Brunei BLACK AND WHITE SPOT DESIGN 34075
Brunei GATEWAY (WORD XXXX) 34076
Brunei GATEWAY NEO 30759 26361
China VIVITRON 95017149 926596
China BLACK AND WHITE SPOT DESIGN 9900040448 1447429
China GATEWAY WORD XXXX 970060654
China GATEWAY WORD XXXX
China SOLO 9900123204
90
COUNTRY TRADEMARK APPLICATION REGISTRATION
NUMBER NUMBER
-------------- --------------------------------- ------------ ------------
China DESTINATION 95024294 000000
Xxxxx GATEWAY 2000 STYLIZED 970060655
China ALR 960121065 1163278
China GATEWAY (GREEN) 9800090777
China GATEWAY (GREEN BOX ABOVE) 9800090779
China GATEWAY (GREEN BOX LEFT) 9800090780
China GATEWAY COUNTRY (GREEN BOX ABOVE)
China COW SPOTTED BOX 0000000000 1396310
China YOUR:)XXXX 9900119023
China GATEWAY COUNTRY (GREEN BOX
LEFT)
China GATEWAY (WORD XXXX) 9900075197 1436872
China GATEWAY (WORD XXXX) 9900075195 1452701
China GATEWAY (WORD XXXX) 9900075199 1455437
China GATEWAY (WORD XXXX) 9900075198 1463975
China GATEWAY NEO 2000019845
China GATEWAY@WORK (& DESIGN) 2000039747 1591711
China TRACTOR SEAT & DESIGN 2000056315
China SILO & DESIGN 2000056317
China INTERIOR OF SILO WITH DESK AND 2000056316
CHAIRS
China CORRUGATED BOOTHS & DESIGN 2000056314
Indonesia BLACK AND WHITE SPOT DESIGN X00-00000
Xxxxxxxxx GATEWAY WORD XXXX X00-00000
Xxxxxxxxx GATEWAY NEO D9918753
Japan GATEWAY SOLO 7117616 0000000
Japan VIVITRON 10269794 0000000
Xxxxx VIVITRON 13076886 00000000
Japan GW2K WORD XXXX 7108044 0000000
Japan GATEWAY 2000 WORD XXXX 8170491 0000000
Xxxxx BLACK AND WHITE SPOT DESIGN 10172494 0000000
Xxxxx GATEWAY WORD XXXX
Japan SOLO
Japan DESTINATION 10269594 0000000
Xxxxx WONDERWORKS 770337 0000000
Japan G DESIGN 10172394 0000000
Xxxxx GATEWAY 2000 STYLIZED 11083697 0000000
Xxxxx DESTINATION KATAKANA 10269694 0000000
Xxxxx HANDBOOK KATAKANA 10172594 0000000
Xxxxx GATEWAY COUNTRY 11083797 0000000
Xxxxx GATEWAY 2000 COUNTRY 11083897 0000000
Xxxxx GATEWAY 2000 COUNTRY 11083797 0000000
Xxxxx GATEWAY FAMILY PC 1049731997 0000000
Xxxxx XXXXXXX (XXXXX) 0000000
Xxxxx GATEWAY (GREEN BOX ABOVE) 1052964 0000000
Xxxxx XXXXXXX (XXXXX XXX XXXX) 0000000 0000000
Xxxxx GATEWAY COUNTRY (GREEN BOX
ABOVE)
Japan COW SPOTTED BOX 1052963 0000000
Japan YOUR:)XXXX 1094967
91
COUNTRY TRADEMARK APPLICATION REGISTRATION
NUMBER NUMBER
-------------- --------------------------------- ------------ ------------
Japan GATEWAY COUNTRY (GREEN BOX
LEFT)
Japan GATEWAYNET (WORD XXXX) 1089901 0000000
Xxxxx GATEWAYNET WELCOME TO YOUR 1095981 4366116
WEB (DESIGN)
Japan GATEWAYNET (DESIGN) 1095982 0000000
Xxxxx NET (DESIGN) 10-95983 0000000
Xxxxx WELCOME TO YOUR WEB (WORD 1091774 4352961
XXXX)
Japan GATEWAY PROFILE 10109569 0000000
Xxxxx GATEWAY NEO 0000000
Xxxxx GATEWAY@WORK (& DESIGN)
Japan GATEWAY SELECT 00000000
Japan TRACTOR SEAT & DESIGN 200038577
Japan SILO & DESIGN 200038578
Japan INTERIOR OF SILO WITH DESK AND 200038579
CHAIRS
Japan CORRUGATED BOOTHS & DESIGN 200038580
Japan JI-SAKU-KI 200017786 0000000
Xxxxx GATEWAY HOME 200116406
Malaysia GATEWAY 2000 WORD XXXX MA587391 0000000
Xxxxxxxx SOLO
Malaysia GATEWAY 2000 COUNTRY XX/0000/00
Xxxxxxxx XXXXXXX (XXXXX) XX/00000/00
Xxxxxxxx GATEWAYNET (DESIGN) 2000/17549
Malaysia GATEWAYNET (WORD XXXX) 2000/16891
Malaysia YOUR:)XXXX 00000/00
Xxxxxxxx COW XXXXXXX XXX XX/00000/00
Xxxxxxxx COW SPOTTED XXX XX/00000/00
Xxxxxxxx XXXXXXX (XXXXX XXX XXXX) MA1077998
Xxxxxxxx XXXXXXX (XXXXX XXX XXXX) 00/00000
Xxxxxxxx GATEWAY (GREEN BOX ABOVE) MA/10757/98
Malaysia GATEWAY (GREEN BOX ABOVE) MA/10778/98
Malaysia CORRUGATED BOOTHS & DESIGN 200004297
Malaysia INTERIOR OF SILO WITH DESK AND 200004296
CHAIRS
Malaysia SILO & DESIGN 200004295
Malaysia TRACTOR SEAT & DESIGN 200004294
Malaysia GATEWAY@WORK (& DESIGN) 2000/01546
Malaysia GATEWAY NEO 99/09801
Malaysia GATEWAY (WORD XXXX) 2000/13911
Malaysia GATEWAY PROFILE 2000/16890
Malaysia GATEWAY COUNTRY MA/2342/98
Malaysia GATEWAY WORD XXXX 200002208
Malaysia BLACK AND WHITE SPOT DESIGN 03022/99
Myanmar BLACK AND WHITE SPOT DESIGN
Myanmar GATEWAY WORD XXXX
Myanmar SOLO
Myanmar GATEWAY (GREEN BOX ABOVE)
92
COUNTRY TRADEMARK APPLICATION REGISTRATION
NUMBER NUMBER
-------------- --------------------------------- ------------ ------------
Xxx Xxxxxxx XXXXXXX 0000 WORD XXXX 211842 B211842
New Zealand BLACK AND WHITE SPOT DESIGN 609267 609267
New Zealand GATEWAY WORD XXXX
New Zealand GATEWAY 2000 STYLIZED 244679 244679
Xxx Xxxxxxx XXXXXXX (XXXXX) 000000
Xxx Xxxxxxx GATEWAY (GREEN) 293343
New Zealand GATEWAY (GREEN BOX ABOVE) 293346 293346
New Zealand GATEWAY (GREEN BOX ABOVE) 293347 293347
New Zealand GATEWAY (GREEN BOX LEFT) 293348 293348
New Zealand GATEWAY (GREEN BOX LEFT) 293349 293349
Xxx Xxxxxxx XXXXXXX XXXXXXX (XXXXX XXX
XXXXX)
Xxx Xxxxxxx COW SPOTTED BOX 293344 293344
New Zealand COW SPOTTED BOX 293345 293345
New Zealand YOUR:)XXXX 297882 297882
New Zealand YOUR:)XXXX 297883 297883
New Zealand YOUR:)XXXX 297884 297882
New Zealand YOUR:)XXXX 297885 297885
Xxx Xxxxxxx XXXXXXX XXXXXXX (XXXXX XXX
XXXX)
Xxx Xxxxxxx GATEWAYNET (WORD XXXX) 299129 299129
New Zealand GATEWAYNET WELCOME TO YOUR 301503 301503
WEB (DESIGN)
New Zealand GATEWAYNET (DESIGN) 301504 301504
New Zealand NET (DESIGN) 301505 301505
New Zealand GATEWAY NEO 317079 317079
New Zealand GATEWAY@WORK (& DESIGN) 607888 607888
New Zealand TRACTOR SEAT & DESIGN 612163 612163
New Zealand SILO & DESIGN 612164 612164
New Zealand INTERIOR OF SILO WITH DESK AND 612165 612165
CHAIRS
93
COUNTRY TRADEMARK APPLICATION REGISTRATION
NUMBER NUMBER
-------------- --------------------------------- ------------ ------------
New Zealand CORRUGATED BOOTHS & DESIGN 612166 612166
Pakistan GATEWAY NEO 000000
Xxxxxxxxx XXXXXXX XXXX X00/00000X
Xxxxxxxxx VIVITRON S774794 000000
Xxxxxxxxx GATEWAY 2000 WORD XXXX S/7360/91 0000/00
Xxxxxxxxx BLACK AND WHITE SPOT DESIGN T99/03474H
Singapore GATEWAY WORD XXXX T9912855F
Singapore SOLO T01/07045G
Singapore DESTINATION S211495 000000
Xxxxxxxxx PERFECT SCHOLAR S1049797 T97/10497H
Xxxxxxxxx XXXXXXX (XXXXX XXX XXXXX) X0000000X
Xxxxxxxxx GATEWAY (GREEN XXX XXXX) X000000XX
Xxxxxxxxx COW XXXXXXX XXX X0000000X
Xxxxxxxxx YOUR:)XXXX T99/03473Z T99/03473Z
Singapore GATEWAY (WORD XXXX) T00/17432A
Singapore GATEWAY NEO T99/11058D
Singapore GATEWAY@WORK (& DESIGN) T0002390J
Singapore TRACTOR SEAT & DESIGN T0005931Z
Singapore SILO & DESIGN T0005930A
Singapore INTERIOR OF SILO WITH DESK AND T0005929H
CHAIRS
Singapore CORRUGATED BOOTHS & DESIGN T0005928Z
Taiwan GATEWAY 2000 WORD XXXX 8041208 577929
Taiwan GATEWAY NEO 88044077 925040
Taiwan BLACK AND WHITE SPOT DESIGN I 88042276
Taiwan GATEWAYNET (WORD XXXX) 8940768
Taiwan GATEWAY WORD XXXX 89040278
Thailand BLACK AND WHITE SPOT DESIGN 397039 114807
Thailand SOLO 000000
Xxxxxxxx GATEWAY 2000 STYLIZED 000000
Xxxxxxxx GATEWAY 2000 STYLIZED 313455 TM74637
Thailand GATEWAY 2000 STYLIZED 313448 TM74639
Thailand GATEWAY 2000 STYLIZED 313452 TM74638
Thailand GATEWAY NEO
Viet Nam BLACK AND WHITE SPOT DESIGN 0-0000-00000
Viet Nam GATEWAY WORD XXXX 31360
Viet Nam SOLO 0-0000-00000
Viet Nam GATEWAY 2000 STYLIZED 00000
Xxxx Xxx XXXXXXX (XXXXX XXX XXXXX) 0-0000-00000
Viet Nam GATEWAY (WORD XXXX) 0-0000-00000
94
