MASTER SERVICES AGREEMENT
This MASTER SERVICES AGREEMENT (this "Agreement") is entered into as of December
19, 2000 by and between XXXXXX000.xxx Limited, a Cayman Islands company
("NetCel360"), and Network Appliance, Inc., a California company (the
"Company").
WHEREAS, NetCel360 is in the business of providing services to support
companies' e-business operations in the Asia-Pacific region; and
WHEREAS, the Company wishes to establish a master agreement under which the
Company and its Affiliates may purchase Services and Products from NetCel360,
and NetCel360 wishes to enter into this master agreement to provide the Services
and Products to the Company and its Affiliates under the terms of this
Agreement.
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:
"AFFILIATE" shall mean any person that controls an entity or who is under
common control with such entity;
"AGREEMENT" shall mean this Agreement and any Statement of Work made
hereunder;
"APPLICATION" shall mean any software application provided in connection
with a Service;
"CODE AND DATA" means software, in object code form, and any data and/or
tools created, acquired or licensed by or to NetCel360 either before or
during the course of performing the Services for the Company, and utilized
in any manner by NetCel360 in performing the Services, and which are
generally applicable to development of the Deliverables, and which are not
specifically created, acquired or licensed by NetCel360 exclusively for the
Company pursuant to the terms of a Statement of Work. Code and Data will be
treated as Confidential Information in accordance with the terms hereof.
"CONFIDENTIAL INFORMATION" shall have the meaning set forth in the
Non-Disclosure and Confidentiality Agreement dated December 19, 2000
between the Company and NetCel360 (the "Non-Disclosure
Agreement")."DELIVERABLES" shall have the meaning set forth in Clause 6.1
hereof;
"DISPUTE RESOLUTION PROCEDURE" shall mean the dispute resolution procedure
referenced in Clause 15;
"DOCUMENT" shall mean any Statement of Work, invoice or other document that
bears a party's Signature or is otherwise legally validly executed by a
party and that is sent to the other party under this Agreement;
"DOCUMENTATION" shall mean design drawings, manufacturing drawings,
operating manuals, user instructions, technical literature and all other
related materials provided by NetCel360 to the Company under this
Agreement;
"EQUIPMENT" means any equipment, and Documentation related thereto,
provided by NetCel360 under this Agreement whether by sale, lease, bailment
or otherwise;
"FEES" shall mean fees to be paid by the Company to NetCel360 for the
Services and/or Products in accordance with the prices set forth in a
Statement of Work, which has been accepted by NetCel360 under Clause 3.1,
subject to adjustment as set forth in Clause 5.2;
"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;
"INTELLECTUAL PROPERTY RIGHTS" shall mean:
(a) patents, trade marks, service marks, registered designs, applications
for any of those rights, trade and business names (including internet
domain names and e-mail address names), unregistered trade marks and
service marks, copyrights, database rights, know-how, rights in
designs and inventions;
(b) rights under licenses, consents, orders, statutes or otherwise in
relation to a right in paragraph (a); and
(c) rights of the same or similar effect or nature as or to those in
paragraphs (a) and (b),
in each case in any jurisdiction;
"PERSONAL DATA" shall mean personal data as defined in the Hong Kong
Personal Data (Privacy) Ordinance relating to the Company or the Company's
customers obtained by NetCel360 from the Company and/or any Affiliate or
sub-contractor of the Company;?
"PRODUCT" shall mean any Application, Documentation and/or Equipment
provided by NetCel360 under this Agreement;
"SERVICES" shall mean those services set out in Part I of any Statement(s)
of Work pursuant to this Agreement that has been accepted by NetCel360 in
accordance with Clause 3.1;
"SIGNATURE" shall mean an electronic identification consisting of symbol(s)
or code(s) that will accompany, be affixed to, or be contained in each
Document as agreed between the parties from time to time in accordance with
Clause 3.2(a);
"STATEMENT OF WORK" shall mean a statement of work from the Company in the
form of Exhibit A, which in each case will be subject to acceptance by
NetCel360 under Clause 3.1;
"SUB-CONTRACTOR" shall mean a sub-contractor of NetCel360 (or of a
Sub-contractor), which may include Affiliates of NetCel360, in relation to
the performance of 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, but which shall not include any income tax of a
party.
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 clause or schedule or exhibit, unless the context
otherwise requires, is a reference to a clause of or schedule or exhibit to
this Agreement; and (vi) the Company, in the context of delivery of
Services and/or Products, shall include any person, including an Affiliate
of the Company, to whom the Services and/or Products are delivered at the
direction the Company.
1.3 The headings in this Agreement do not affect their interpretation.
2. TERM
2.1 This Agreement shall be effective upon execution by duly authorised
representatives of the Company and NetCel360 and will continue indefinitely
unless terminated under Clause 2.2.
2.2 (a) Each Statement of Work shall be effective upon execution (whether by
way of a Signature or other legally valid execution) by duly
authorised representatives of the Company (or an Affiliate or
sub-contractor) and NetCel360 and will continue in force in accordance
with its terms; provided, that subject to Clause 2.2(b), at its option
and upon written notice to the other party in respect of a Statement
of Work, a party in respect of a Statement of Work may terminate a
Statement of Work (i) if that other party has materially breached such
Statement of Work or any provision of this Agreement related to such
Statement of Work and has failed to cure the breach within 90 days
after receipt of written notice describing the breach or (ii) in
accordance with the terms of such Statement of Work.
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(b) Without prejudice to its other remedies under this Agreement, either
party may terminate this Agreement or any Statement of Work
immediately, if the other party has passed a resolution for its
winding up or a court of competent jurisdiction has made an order for
such other party's winding up or dissolution, a receiver has been
appointed over the assets of such other party or such other party has
made an arrangement or composition with its creditors generally or has
made an application to a court of competent jurisdiction for
protection from its creditors generally. In addition, NetCel360 may
immediately terminate the provision of any Services or Products
hereunder or under any Statement of Work, and repossess any Equipment
(excluding any Equipment for which the purchase price has been
received in full by NetCel360), if any of the foregoing has occurred
with respect to the Company.
(c) Following the third anniversary of this Agreement, at its option and
upon 120 days written notice to the other party, either party may
terminate this Agreement.
2.3 Termination of this Agreement or a Statement of Work does not affect the
accrued rights and obligations of a party under this Agreement or a
Statement of Work, as the case may be, at the time of expiry or
termination. The provisions of Clauses 5 (as to accrued Fees, expenses and
Taxes and interest thereon), 6, 7.1(b), 7.1(c), 8.1(b), 8.2(b), 8.3, 9, 11,
12.1, 13, 14, and 16.2 will survive the termination of this Agreement or a
Statement of Work and continue in full force and effect.
3. STATEMENTS OF WORK
3.1 The Company, its Affiliates and sub-contractors shall order Services and/or
Products from time to time by submitting a Statement of Work to NetCel360.
Each Statement of Work is subject to acceptance by NetCel360 within 14 days
after receipt, and any Statement of Work not accepted by NetCel360 within
such period will be deemed to be rejected without any further action by
NetCel360.
3.2 The parties hereto agree that with respect to Signatures, Documents,
information related to Signatures and/or Documents and information
exchanged under this Agreement that are transmitted and/or processed
electronically:
(a) not later than 15 days following the date of execution of this
Agreement or following acceptance of a Statement of Work by NetCel360
under Clause 3.1, the parties to this Agreement or to the Statement of
Work, as the case may be, shall agree the technical solution or
solutions (which may include, without limitation, cryptographic
technology) and the authentication and verification procedures to be
adopted by each party in respect of the adoption, transmission and
receipt of their respective Signatures. Each party shall, within 30
days of reaching such agreement, take such steps as may be necessary
to implement the agreed technical solution or solutions. The Signature
of each party will then accompany, be affixed to or contained in each
Document sent by each party to the other and the parties shall comply
with the agreed authentication and verification procedures; and
(b) (i) each Document sent by a party to the other shall identify the
sender and the recipient; (ii) at its own expense, each party will
provide and maintain the equipment, software and services necessary to
transmit and receive Documents in accordance with this Agreement;
(iii) each party hereby agrees that subject to compliance by the other
party with its obligations under this Clause 3.2, and in the absence
of fraud or manifest error, its Signature is sufficient to verify the
authenticity of a Document; (iv) each party will use reasonable
security procedures to provide that all transmissions under this
Clause 3 are authorised, protect its business records from
unauthorised access or use and protect Signatures from unauthorised
disclosure or use; and (v) each party agrees that electronic
transmissions made under and in accordance with this Agreement shall
have the same effect as if the parties hereto exchanged tangible paper
documents under this Agreement, and an electronic Document, or any
computer printout of it, is an original when maintained in the normal
course of business.
3.3 In the event of any express conflict or inconsistency between the
provisions of a Statement of Work and the provisions of this Agreement, the
provisions of such Statement of Work will govern and prevail with respect
to the interpretation of such Statement of Work; provided, however, that
the provisions of such Statement of Work will be so construed to give
effect to the applicable provisions of this Agreement to the fullest extent
possible.
3.4 Services and/or Products to be delivered to the Company or an Affiliate
thereof under a Statement of Work will be deemed to have been accepted by
the Company or such Affiliate when the acceptance criteria described in
such Statement of Work, if any, have been met. Where no criteria are
specified, such Services and/or Products will be deemed to have been
accepted upon delivery.
3.5 Either party to a Statement of Work may request changes to the Services
and/or Products as set out in a Statement of Work. Changes must be
supported by sufficient details to enable the other party to assess the
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impact of the requested change on the cost, timetable or any other aspect
of the Statement of Work. The parties agree to work together to consider,
and if appropriate, agree on any such changes. Until a change is agreed in
writing, the parties to a Statement of Work will continue to act in
accordance with this Agreement and such Statement of Work.
4. PROVISION OF SERVICES
4.1 NetCel360 will use its reasonable endeavours to provide the Services.
NetCel360 may suspend the Services in whole or in part at any time if (a)
NetCel360 considers it necessary to safeguard provision of the Services;
(b) there is a failure in any networks or equipment used to provide the
Services or there is a need to carry out any planned maintenance, repair or
upgrading of any such networks or equipment; (c) in NetCel360's reasonable
opinion, there is or has been unauthorised, improper, unlawful or
fraudulent use of the Services; (d) it is necessary to comply with any
direction or request of a governmental body or department or regulatory
agency; or (e) any circumstances arise in which NetCel360 is entitled to
terminate this Agreement or any Statement of Work.
4.2 NetCel360 may use its Sub-contractors to perform some or all of its duties
or obligations under this Agreement and/or under any Statement of Work.
4.3 In performing its obligations under this Agreement, NetCel360 and its
Sub-contractors will be entitled to rely upon any routine instructions,
authorisations, approvals or other information provided to NetCel360 and/or
its Sub-contractors by the Company or the Affiliate to which the Services
and/or Products are being delivered. Unless NetCel360 knew of any error,
incorrectness or inaccuracy in such instructions, authorisations, approvals
or other information, NetCel360 will incur no liability or responsibility
of any kind in relying on or complying with any such instructions or
information.
4.4 Where the Services or Products include the provision of Services or
Products based on software hosted by NetCel360 or installed on NetCel360's
machines, and such Services or Products are provided to the Company on an
"on-line" basis (which includes, without limitation, by means of the
worldwide computer network integrated through the use of the TCP/IP
protocol, otherwise known as the Internet), the Company may:
(a) access the Services or Products in accordance with the procedure (if
any) set out in the applicable Statement of Work, although NetCel360
will not be responsible in any way for the Company's Internet,
telephone or other telecommunications access; and
(b) subject to the terms of a separate license agreement in respect of the
relevant software, access and use the relevant software to write and
record data and to generate and download reports and otherwise on the
terms and conditions set out in Clause 6.2.
5. INVOICING; FEES
5.1 NetCel360 will invoice the Company electronically, in accordance with
Clause 3.2, on a monthly basis for: (i) Fees incurred during the
immediately preceding calendar month; and/or (ii) reimbursement of expenses
referred to in Clause 5.3. Payment from the Company on each invoice is due
within 30 days of the date of the invoice. Interest for late payment will
accrue on overdue invoices at the rate of 1.5% per month from the date that
is 60 days after the date of the invoice (whether before or after
judgment). Interest shall accrue notwithstanding termination of this
Agreement or the relevant Statement of Work for whatever reason. Unless
otherwise agreed in a Statement of Work, Fees will be priced in US dollars.
5.2 Fees set forth in a Statement of Work that has been accepted by NetCel360
under Clause 3.1 may be adjusted by NetCel360, upon 30 days written notice
at any time to reflect changes in the requested formulation of Services
and/or Products or changes in the quantity of Services and/or Products
ordered.
5.3 The Company shall reimburse the reasonable pre-approved expenses incurred
by NetCel360 and/or its Sub-contractors in providing the Services and/or
Products, including, without limitation, expenses for travel, accommodation
and subsistence, costs of any permits, licenses, registrations or approvals
required to be obtained by, and any other costs incurred by, NetCel360 or
any Sub-contractor specifically to provide the Services and/or Products;
provided, that such approval shall not be unreasonably withheld by the
Company and shall be provided in a reasonably timely manner to NetCel360.
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6. INTELLECTUAL PROPERTY RIGHTS
6.1 Subject to any third party rights or restrictions and the other provisions
of this Clause and Clause 6.2, the Company will own all Intellectual
Property Rights relating to the deliverables that are (a) described in any
Statement of Work entered into under this Agreement, (b) developed and
delivered by NetCel360 hereunder and thereunder and (c) paid for by the
Company (the "Deliverables"). Each party will retain all rights it
possessed prior to the date of the relevant Statement of Work in any,
software, ideas, content, images, information, concepts, know-how,
development tools, techniques or any other proprietary material or
information that may be used or provided by such party in connection with
its role relating to the performance of the Services under such Statement
of Work. The Company hereby grants to NetCel360 and its Sub-contractors the
nonexclusive rights and licenses to any content, images, information and
other works of authorship only to the extent that such rights and licenses
are necessary or appropriate for NetCel360 to perform the Services or
provide the Deliverables under this Agreement or any Statement of Work
entered into hereunder. All software that is licensed by a party from a
third party vendor will be and remain the property of such vendor.
Notwithstanding anything to the contrary in this Agreement, NetCel360 (i)
will retain all right, title and interest, including in Intellectual
Property Rights, in and to all development tools, know-how, methodologies,
processes, technologies or algorithms used in performing the Services and
providing the Deliverables which are based on trade secrets or proprietary
information of NetCel360 or are otherwise owned or licensed by NetCel360,
(ii) will be free to use the ideas, concepts and know-how which are
developed in the course of performing the Services or providing the
Deliverables and may be retained by NetCel360's employees in intangible
form and (iii) will retain ownership of any Code and Data that are used in
producing the Deliverables and become embedded in the Deliverables;
provided, that NetCel360 hereby grants to the Company a worldwide,
non-exclusive, royalty-free, irrevocable license to use the Code and Data
and any tools or functionalities not created by NetCel360 that are embedded
in such Deliverables, to the extent that such Code and Data or tools or
functionalities (x) are and remain embedded in the Deliverables and (y) are
required for operation of the Deliverables.
6.2 If any Applications and/or Documentation provided by NetCel360 are provided
under a separate license agreement, that license agreement shall govern the
use of such Applications and/or Documentation, and the Company agrees to
abide by such separate license agreement. If a separate license agreement
is not provided, the following license and terms and conditions shall
apply: (a) such Applications and Documentation are licensed on a personal,
non-exclusive and non-transferable basis for the Company's internal
business purposes only and may not be used by persons (other than NetCel360
and its Sub-contractors) contracted to provide services to the Company
without NetCel360's prior written consent, which may be given on the
condition that the Company shall pay an additional charge for such use; (b)
such Applications and Documentation are licensed for use at only those
locations, on only those machines and by only those end-users identified in
the relevant Statement of Work, and may not be used by or on behalf of any
other person (including for the provision of commercial timesharing, rental
or bureau services); (c) no title to such Applications or Documentation is
transferred to the Company; (d) the Company may not copy such Applications
or Documentation, except the Company may make an archival copy of such
Applications and Documentation, provided the copies have all the legends
and notices that are on the original item, and such copy will be subject to
this Agreement and the terms of the Statement of Work; (e) the Company may
not market, exploit or make such Application and/or Documentation available
to another person; (f) the Company may not charge or otherwise deal in or
encumber the Application and/or the Documentation; (g) the Company may not
delete, remove or in any way obscure NetCel360's (or its licensor's)
proprietary notices on any copy of the Application and Documentation; (h)
the Company may not decompile, disassemble or modify any Application
provided under this Agreement; (i) the license automatically terminates
upon the earlier of the termination of this Agreement or the relevant
Statement of Work or the date upon which when the Company stops using the
machines on which the Application is licensed; (j) upon termination of the
license, the Company shall, at NetCel360's option, destroy (and in writing
certify destruction) or return to NetCel360 all copies of the Application,
Documentation and any Confidential Information in the Company's possession
(including Confidential Information incorporated in other software or
writings) that was provided under such license.
7. COMPANY'S OTHER OBLIGATIONS AND WARRANTIES
7.1 The Company agrees:
(a) and acknowledges that the support and co-operation of the Company (and
its Affiliates, to the extent the Services and/or Products are being
provided to its Affiliates) is in the best interest of both the
Company and NetCel360 so as to ensure efficient and effective delivery
and performance of the Services and/or Products by NetCel360 and its
Sub-contractors. The Company therefore agrees to make all commercially
reasonable efforts to provide its, and to procure that its Affiliates
provide their, full support and co-operation to NetCel360 and its
Sub-contractors, especially in ensuring that NetCel360 and its
Sub-contractors are able to gain access to key people and information;
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(b) (i) not to create or allow any charges, liens, pledges or other
encumbrances whatsoever to be placed on any Products; (ii) that title
to Products shall at all times belong and remain with NetCel360 or its
relevant Sub-contractor; (iii) the Company shall be liable for repair
charges or the replacement cost of any Equipment provided to the
Company or any of its Affiliates if it is damaged or lost; and (iv)
upon termination of a Service or a Product for which Equipment was
provided, to make such Equipment available for removal or to return it
to NetCel360, in each case in the same condition as originally
installed, except for ordinary wear and tear; provided, that upon the
Company's request NetCel360 shall sell such Equipment to the Company
on terms to be mutually agreed upon; and provided, further, that the
obligations of the Company under this Clause 7.1(b) shall not apply to
any Products sold to the Company and/or its Affiliates for which the
purchase price has been received in full by NetCel360;
(c) not to disclose to any person any personal identification number or
password or login ID issued by NetCel360 or any of its Sub-contractors
to the Company or any other access method authorised by NetCel360 or
any of its Sub-contractors for use in conjunction with the Services.
If the Company becomes aware of any unauthorised access to the
Services by any person, or if the Company believes that any such
personal identification number or password or login ID has been lost
or stolen, or otherwise compromised, the Company shall notify
NetCel360 in writing immediately. NetCel360 shall not be liable for
any loss, theft or compromise or damage the Company may incur or
suffer by reason of any unauthorised access to the Services or the
loss, theft or compromise of any such personal identification number,
password or login ID;
(d) not to use the Services or Products for any unauthorised improper,
defamatory, unlawful, immoral or fraudulent purpose;
(e) to comply with all applicable laws and with the instructions of
NetCel360 and its Sub-contractors in relation to the Company's use of
the Services and Products;
(f) to provide, or procure the provision of, reasonable access to the
Company's and its Affiliates' premises and facilities at such premises
for representatives of NetCel360 and its employees, agents and
Sub-contractors to the extent necessary to the performance of
NetCel360's obligations under this Agreement and/or any Statement of
Work; and
(g) not to cause or permit any Products to be altered, modified, repaired
or serviced except by NetCel360 or its authorised representatives.
7.2 The Company warrants that it has obtained and shall maintain all licenses,
consents, permits and authorisations necessary to receive and enjoy the
Services and/or the Products as contemplated by this Agreement.
8. NETCEL360'S WARRANTIES
8.1 Service Warranties.
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(a) Subject to Clause 8.1(b), NetCel360 warrants that it and its
Sub-contractors shall: (i) perform the Services with reasonable skill
and care; (ii) comply with all applicable laws and regulations in the
performance of its obligations hereunder; (iii) 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.
(b) The Company acknowledges that no Services provided over or through the
Internet can be completely error or interruption free. NetCel360 does
not warrant that the Services will be provided on an uninterrupted or
error-free basis or shall be fit for any particular purpose. NetCel360
is not responsible for any failure or breach caused by misuse or
unauthorised use of the Services by the Company. NetCel360 shall not
be liable to the Company for any failure by NetCel360 or any
Sub-contractor to perform its obligations under this Agreement or a
Statement of Work to the extent that such failure directly arises from
or relates solely to any material failure by the Company or any
Affiliate thereof to perform its obligations under this Agreement or
the relevant Statement of Work, as the case may be, or any other
material negligent or wilful act or omission by the Company and/or any
Affiliate thereof. The warranties in Clause 8.1(a) apply only if the
Company uses the minimum hardware and software specification levels
designated by NetCel360 and its Sub-contractors as being required for
operation of the Services. It shall be a condition precedent of
NetCel360's liability or obligation under the warranty given in Clause
8.1(a) that it receives written notice from the Company of any
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non-conformance with the warranty within 30 days from the date that
the Company discovers such non-conformance or reasonably should have
discovered such non-conformance, but in any event no more than one
year from the date of the occurrence of such non-conformance, and any
failure to so comply shall mean the Company is deemed to have waived
any entitlement under such warranty. If NetCel360 receives written
notice from the Company of a breach of any warranty in Clause 8.1(a),
NetCel360 shall forthwith make all reasonable efforts to rectify any
non-conformance with such warranty by re-performing the Service that
was the subject of such breach. The Company's exclusive remedy
initially under the warranty given in this Clause 8.1 is limited to
such re-performance of a Service, and if NetCel360 is unable to remedy
such non-conformance then the Company may seek any other remedy that
is available to it under this Agreement.
8.2 Product Warranties.
-------------------
(a) Subject to Clause 8.2(b), with respect only to Products manufactured
or developed by NetCel360 and identified in a Statement of Work which
has been accepted by NetCel360 under Clause 3.1, NetCel360 warrants
that the proper use of such Products, on hardware and using software
(as appropriate) meeting minimum specification levels and configured
as designated by NetCel360, will provide the facilities and functions
and perform substantially as described in the Documentation for a
period of 120 days in the case of Applications, and three years in the
case of Equipment, in each case from the date of delivery of such
Products to the Company.
(b) NetCel360 does not warrant that the operation of the Products referred
to in Clause 8.2(a is fit for any particular purpose. It shall be a
condition precedent of NetCel360's liability or obligation under the
warranty given in Clause 8.2(a) that it receives written notice from
the Company of any non-conformance with the warranty within 90 days
from the date that the Company discovers such non-conformance or
reasonably should have discovered such non-conformance, but in any
event no more than one year from the date of the occurrence of such
non-conformance, and any failure to so comply shall mean the Company
is deemed to have waived any entitlement under such warranty.
NetCel360 shall not be liable for any failure of such Product to
provide any facility or function not described in the Statement of
Work or Documentation or any failure attributable to: (i) any
modification to the Product by persons other than NetCel360 or a
Sub-contractor; (ii) the improper or unauthorised use, operation or
neglect of the Product; or (iii) the failure of the Company to
implement recommendations of NetCel360 or its Sub-contractors in
respect of solutions to faults. The Company's exclusive remedy
initially under the warranty given in this Clause 8.2 is limited to
NetCel360, at its own expense, using all reasonable endeavours to
rectify any non-conformance with such warranty by repair or, at
NetCel360's option, replacement of such Product in whole or in part.
If NetCel360 is unable to remedy such non-conformance in the manner
specified in the immediately foregoing sentence, then the Company may
seek any other remedy that is available to it under this Agreement.
8.3 EXCEPT FOR THE WARRANTIES PROVIDED UNDER CLAUSES 8.1 AND 8.2, NETCEL360
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. WITH RESPECT TO ANY PRODUCTS NOT IDENTIFIED AS
MANUFACTURED OR DEVELOPED BY NETCEL360 IN A STATEMENT OF WORK ACCEPTED BY
NETCEL360 UNDER CLAUSE 3.1, THE COMPANY ACKNOWLEDGES THAT NETCEL360 MAKES
NO WARRANTIES OF ANY KIND, AND THE COMPANY AGREES TO LOOK SOLELY TO THE
MANUFACTURER'S WARRANTIES IN THE MANUFACTURER'S WARRANTY STATEMENT (IF ANY)
AND AGREES THAT THIS PROVISION IS REASONABLE IN LIGHT OF THE SERVICES
AND/OR PRODUCTS BEING PROVIDED, PROVIDED, THAT NETCEL360 SHALL ASSIST THE
COMPANY TO PURSUE ANY CLAIMS ARISING AS A RESULT OF THE BREACH ANY SUCH
MANUFACTURER'S WARRANTIES BY THE MANUFACTURER. TO THE EXTENT THAT NETCEL360
MAY HAVE FACILITATED THE SUPPLY OF SERVICES OR PRODUCTS BY A THIRD PARTY
(OTHER THAN AN AFFILIATE OF NETCEL360 OR A SUB-CONTRACTOR) TO THE COMPANY,
AND ANY SUCH THIRD PARTY HAS ENTERED INTO A CONTRACT WITH THE COMPANY, THE
COMPANY AGREES THAT ITS REMEDIES IN RESPECT OF THE SUPPLY OF THE SERVICES
AND/OR PRODUCTS UNDER SUCH CONTRACT ARE EXERCISABLE AGAINST THE RELEVANT
THIRD PARTY AND NOT AGAINST NETCEL360, ITS EMPLOYEES, AGENTS OR AFFILIATES,
AND THE COMPANY AGREES THAT THIS PROVISION IS REASONABLE.
9. INDEMNIFICATION; LIMITATION OF LIABILITY
9.1 Each party (an "Indemnifying Person") agrees to indemnify the other party
(contracting for itself, and as trustee for its directors, officers,
employees, agents and Sub-contractors) (such other party and each such
person, an "Indemnified Person") against any losses, liabilities and costs
incurred by such Indemnified Person arising as a result of or in connection
with any claim brought against an Indemnified Person by a third party
arising out of or in connection with (i) a material breach by the
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Indemnifying Person or any of its Affiliates of this Agreement or a
Statement of Work, or (ii) the Indemnifying Person's wilful misconduct or
gross negligence in connection with its performance of its obligations
under this Agreement or a Statement of Work.
9.2 UNLESS OTHERWISE PROVIDED ELSEWHERE IN THIS AGREEMENT, NETCEL360 SHALL NOT
BE LIABLE FOR ANY LOSS OR DAMAGES, WHETHER ARISING IN CONTRACT, TORT OR
OTHERWISE, IN EXCESS OF APPLICABLE FEES PAID BY THE COMPANY FOR SERVICES
AND/OR PRODUCTS DIRECTLY RELATED TO THE DAMAGE IN THE IMMEDIATELY PRECEDING
SIX MONTHS.
9.3 IN NO EVENT WILL NETCEL360, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS,
AFFILIATES AND SUB-CONTRACTORS BE LIABLE FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST
PROFITS, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, DOWNTIME, LOST OR DAMAGED
FILES OR DATA, OR LOSS OF GOODWILL, RESULTING FROM ANY CAUSE WHATSOEVER,
INCLUDING NEGLIGENCE OR OTHER TORTS, PRODUCT DEFECTS OR MALFUNCTIONS OR THE
BREACH OF THIS AGREEMENT OR A STATEMENT OF WORK, IN EITHER CASE REGARDLESS
OF THE FORM OF LEGAL ACTION AND EVEN IF NETCEL360 HAS BEEN NOTIFIED OF THE
POSSIBILITY OF SUCH DAMAGES.
9.4 NOTHING IN THIS AGREEMENT SHALL OPERATE TO EXCLUDE OR RESTRICT EITHER
PARTY'S LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM THEIR
NEGLIGENCE OR FROM FRAUD.
9.5 NetCel360 will defend and indemnify the Company against each loss,
liability and cost which the Company incurs arising out of a third-party
claim that a Service or Product infringes an Intellectual Property Right,
provided that the Company: (a) promptly provides NetCel360 with written
notice of the claim; (b) grants to NetCel360 sole control of the defence
and settlement negotiations relating to such claim; and (c) provides all
reasonable assistance in defending or settling such claim. Xxxxxxx,
XxxXxx000 will not be required to defend or indemnify the Company if the
claim results solely from the Company's or any of its Affiliates'
alteration or misuse or unauthorised use of any Service or Product or
relates solely to the use of any Service or Product in combination with a
non-NetCel360 Service or Product. For non-NetCel360 Services and Products,
the Company agrees to look to the indemnification and remedies, if any,
provided by the manufacturer or provider of such Services and/or Products.
In this Clause 9.5, "non-NetCel360 Service or Product" means a service or
product not provided by NetCel360 or a Sub-contractor under this Agreement
or a Statement of Work.
10. RELATIONSHIP MANAGEMENT; NOTICES
10.1 NetCel360 and the Company (on its own behalf and on behalf of any
Affiliate) shall each designate a person who shall be its point of contact
with respect to all matters relating to the Services, Products and terms
and conditions of this Agreement. Unless and until notice is given
otherwise, such point of contact shall be:
For NetCel360:
--------------
Xxxxx Xxxxxx
Director of Sales
XxxXxx000.xxx Limited
c/o NetCel360, Inc.
00000 Xxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
e-mail: xxxxx_xxxxxx@xxxxxx000.xxx
For the Company:
-----------------
Xxxxxxxx Xxxxxxx
Xx. Director, Global Service Center
000 X. Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
e-mail: xxxxxxxx@xxxxxx.xxx
10.2 The Company or NetCel360, 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.
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10.3 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; (iii) sent by fax; or (iv) sent
electronically in accordance with Clause 3.2, to the persons at the
addresses set forth in Clause 10.1. Notice is deemed to have been duly
given: (i) if delivered personally, when left at the address referred to in
Clause 10.1; (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 or
electronically, on completion of transmission by the recipient.
11. CONFIDENTIALITY
The parties' obligations with respect to Confidential Information shall be
governed by the terms and conditions of the Non-Disclosure Agreement.
12. PROVISION OF INFORMATION
12.1 The Company acknowledges that as a result of providing the Services and/or
the Products, NetCel360 and its Sub-contractors will collect, possess and
have access to Personal Data relating to the Company and its customers. The
parties agree that such Personal Data is confidential and will be subject
to the Non-Disclosure Agreement and, subject to Clause 12.2, is and will
remain the property of the Company. Following expiration or termination of
this Agreement for any reason, NetCel360 will, upon written request from
the Company and at the Company's expense, return to the Company all such
Personal Data in NetCel360's possession.
12.2 The Company agrees that NetCel360 may use the Personal Data (i) in
connection with the delivery and performance of the Services and/or
Products; (ii) for matching (as defined in the Hong Kong Personal Data
(Privacy) Ordinance) with other data collected for other purposes and from
other sources including third parties in relation to the provision of the
Services and/or Products; (iii) to analyse, verify and/or check the credit
or payment status of the Company; (iv) as is required by law, including
disclosing such Personal Data to governmental or regulatory authorities
having jurisdiction over NetCel360 and/or its Sub-contractors; and (v) for
any other purposes as may be agreed to by the parties.
12.3 The Company agrees that the Personal Data may be disclosed and transferred
in Hong Kong or in places outside Hong Kong to NetCel360's Affiliates and
Sub-contractors and their respective agents and employees, other third
parties and any of NetCel360's actual or proposed assignees or transferees
of its rights in respect of the Company for such person to use, disclose,
hold, process, retain or transfer for the purposes listed in clause 12.2.
12.4 Where the provision of the Services to the Company or its Affiliates
entails the collection by NetCel360 and/or its Sub-contractors of Personal
Data from the Company's customers, the Company hereby authorizes NetCel360
and its Sub-contractors to obtain any consents from and provide any notices
to such customers as may be required under any applicable laws or
regulations. Where the provision of the Services to the Company or its
Affiliates entails the transfer by the Company and/or its Affiliates and
sub-contractors to NetCel360 and its Sub-contractors of, and the use by
NetCel360 and its Sub-contractors of, Personal Data of the Company's and/or
its Affiliates' customers, the Company hereby represents and warrants that
such transfer and use is in compliance with all applicable laws and
regulations, and the Company, its Affiliates and such sub-contractors have
obtained all licenses, consents, permits and authorisations necessary to
permit such transfer and use.
12.5 On request by NetCel360, the Company shall provide NetCel360 with
information relating to the Company, its Affiliates, its and their
customers and its or their use of the Services and/or Products reasonably
required by NetCel360 or any of its Sub-contractors to assist NetCel360 and
such Sub-contractor in complying with its obligations under any applicable
law or regulations.
13. FORCE MAJEURE
If either party is prevented, hindered or delayed from or in performing any
of its obligations under this Agreement or any Statement of Work 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 or any Statement of Work. If a Force Majeure Event affecting
NetCel360's ability to perform a Service continues for more than two
consecutive months, the Company shall be entitled to terminate the
Statement of Work under which such Service is being provided.
14. ANNOUNCEMENTS/PUBLICITY
The Company agrees that NetCel360 and its parent company may publicly refer
to the Company, orally and in writing, as a customer and, solely in
accordance with the Company's written guidelines pertaining thereto, may
use the Company's logo, trade name, trademark or service xxxx in connection
therewith. NetCel360 agrees that the Company may publicly refer to
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NetCel360, orally and in writing, as a vendor and, solely in accordance
with NetCel360's written guidelines pertaining thereto, may use NetCel360's
logo, trade name, trademark or service xxxx in connection therewith.. Any
other reference to the other party by either party, including any details
of this Agreement, any Statement of Work or any Services hereunder or
thereunder, whether in the form of 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.
15. DISPUTE RESOLUTION
15.1 Any disputes arising out of or relating to this Agreement or any Statement
of Work, or the breach, termination or invalidity thereof shall be
attempted to be settled first through friendly consultations between the
parties. Such consultations will begin immediately, or as soon as
practicable, after one party has delivered to the other party written
request for such consultation. If within seven days following the date on
which such notice is given, the dispute has not been settled through
consultation, either party may commence submission to arbitration in
accordance with Clause 15.2.
15.2 Any dispute, controversy or claim arising out of or relating to this
Agreement or any Statement of Work, or the breach, termination or
invalidity thereof, shall be settled by arbitration in accordance with the
UNCITRAL Arbitration Rules as at present in force and as may be amended by
the rest of this clause. The place of arbitration shall be in San
Francisco, California, USA. There shall be only one arbitrator, who shall
be appointed by the San Francisco office of the American Arbitration
Association (the "AAA"). Any such arbitration shall be administered by the
arbitrator in accordance with the AAA's procedures for arbitration in force
at the date of this Agreement including such additions to the UNCITRAL
Arbitration Rules as are therein contained.
16. MISCELLANEOUS
16.1 Neither party may assign or transfer any right or obligation under this
Agreement or any Statement of Work without the prior written consent of the
other party.
16.2 This Agreement and any Statements of Work shall be governed by and
interpreted in accordance with the laws of Hong Kong, SAR, without giving
effect to the conflict of laws principles thereof.
16.3 This Agreement, together with the Statements of Work and any other
documents referred to in this Agreement or any Statement of Work,
constitutes the entire agreement, and supersedes any previous agreements,
between the parties relating to the subject matter of this Agreement and
the Statements of Work.
16.4 Unless otherwise expressly provided for herein, this Agreement or a
Statement of Work may be amended or modified only in writing upon the
agreement of both parties.
16.5 A failure to exercise or delay in exercising a right or remedy provided by
this Agreement or a Statement of Work 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 a Statement of Work or by law prevents a further exercise of the right
or remedy or the exercise of another right or remedy.
16.6 NetCel360 will provide the Services and the Products to the Company as an
independent contractor, and not as an employee, officer or agent of the
Company or as its general partner. In addition, nothing in this Agreement
or any Statement of Work will constitute the parties an association, joint
venture or partnership.
16.7 This Agreement and any Statement of Work 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.
16.8 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 and each Statement of Work.
16.9 If any provision of this Agreement or any Statement of Work 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
XXXXXX000.XXX LIMITED
By: /S/ Xxxx De Kruif
------------------------------------
Name: Xxxx De Kruif
Title: Vice President, US Operations
NETWORK APPLIANCE, INC.
By: /S/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Director, Prod. Support
- 11 -
EXHIBIT A
STATEMENT OF WORK FORM
Statement of Work No.__________________________
This Statement of Work, dated as of _______________ (this "Statement of Work"),
incorporates the terms and conditions of the Master Services Agreement, dated as
of _____________________ (the "Agreement"), by and between XxxXxx000.xxx Limited
("NetCel360") and _______________________ (the "Company") as if they had been
set out here in full and for the purposes of this Statement of Work. If the
Company is not the entity that issued this Statement of Work, references in the
Agreement to the "Company" or intended to refer to the Company shall be
interpreted as references to such issuing entity. Any defined term not defined
in this Statement of Work shall have the same meaning ascribed to such term in
the Agreement. The sole contracting parties for all purposes of this Statement
of Work shall be the entity that issued this Statement of Work (who shall be the
"Company" for the purposes of this Statement of Work) and NetCel360.
The Company agrees to supplement this Statement of Work with any additional
information reasonably required by NetCel360 to provide the services (the
"Services") and/or Products specified below in Part I.
PART I. REQUESTED SERVICES/PRODUCTS:
[INSERT DESCRIPTION, WITH PRICING DETAILS]
Requested start date for delivery: __________________________________; provided,
that such start date (and any corresponding end date) are subject to delivery by
the Company of all information, materials and other deliverables required under
this Statement of Work to NetCel360 on or before the agreed upon date(s) for
delivery by the Company of such information, materials and deliverables
("Company Delivery Date(s)"). If all such information, materials and other
deliverables are not received by NetCel360 on or before such Company Delivery
Date(s), then the start and end dates shall be delayed by that number of
business days equal to the number of days between the relevant Company Delivery
Date(s) and the date that all such required information, materials and other
deliverables are actually received by NetCel360.
Requested installation date (if applicable): __________________________
PART II. IN ADDITION TO THE TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT,
THE PARTIES HERETO HEREBY AGREE TO THE FOLLOWING:
[INSERT ADDITIONAL TERMS AND CONDITIONS REQUIRED FOR THE SPECIFIC
SERVICE/PRODUCT BEING PROVIDED UNDER THIS STATEMENT OF WORK.]
Issued by: Accepted by:
[COMPANY] XXXXXX000.xxx Limited
By: By:
--------------------------------- -----------------------------------
Name: Name:
Title: Title:
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