OUTSOURCING SERVICES AGREEMENT - ICT-toimintojen ulkoistamissopimus
OUTSOURCING
SERVICES AGREEMENT
-
ICT-toimintojen ulkoistamissopimus
Sopimuspohja tehty neutraalista näkökulmasta tilanteeseen, jossa yhtiö ulkoistaa laajalti ICT-toimintojaan toiselle yhtiölle (tässä aluksi neljäksi vuodeksi) ja maksaa palvelusta kuukausittaista palvelumaksua.
Sopimuspohjan kaikki kohdat tulee tarkistaa ja muuttaa vastaamaan käytännön tilannetta; on myös huomioitava, että yhden sopimuskohdan muuttaminen yleensä vaikuttaa myös sopimuksen muihin lausekkeisiin ja lisämuutokset ovat tällöin tarpeen.
HUOM.!
Tämä sopimuspohja ei sovellu käytettäväksi käytännön
tilanteisiin ilman sopimusjuridisen asiantuntijan tarkistusta ja
korjauksia.
DRAFT 0.1 - January __, 20__
OUTSOURCING
SERVICES AGREEMENT
THIS AGREEMENT is made and entered into as of the January 1, 20__
("Effective Date") by and between the Yhtiö Oy ("Yhtiö"),
a Finnish corporation having an office and place of business at
Xxxxxxx 0, 00000 Xxxxxxxx and Finnish Business Technology Oy, a
Finnish corporation having
an
office and place of business at Xxxxxxxx 0, 00000 Xxxxxxxx("XXX")
and the wholly-owned subsidiaries of FBT listed on the signature
pages hereto. ("FBT").
WHEREAS,
FBT desires to hire Yhtiö to perform outsourced management services
and Yhtiö desires to be hired by FBT to perform such services
regarding the operational management (the "Services") for
the FBT customers using a defined set of FBT data centers listed on
Exhibit A (attached hereto and made a part hereof by reference),
collectively known as (the "Data Centers") as an
independent contractor according to the terms and conditions set
forth herein.
NOW
THEREFORE,
in consideration of the terms and conditions set forth below and
other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
ARTICLE
1 - SPECIFICATIONS OF WORK
1.1
The parties agree that the general scope and results of the Services
to be completed by Yhtiö shall be developed by FBT and by Yhtiö and
consist primarily of the day-to-day
management of the Data Centers as more fully
described on Exhibit B (attached hereto and made a part hereof by
reference).
1.2
All Services shall be performed in a workman like fashion. Unless
otherwise requested by FBT, Yhtiö shall prepare and deliver to FBT
monthly reports/invoices regarding any Services ongoing or performed
during each month of the term of this Agreement.
1.3
FBT agrees that it will not directly or indirectly, during the term
of this Agreement,
solicit or utilize the services of any other vendor or
contractor for the Services to be provided by Yhtiö.
1.4
Optional Services. The parties acknowledge and agree that from time
to time during the term of this Agreement there may be additional
services required by the FBT. The specifications and pricing of these
services will be mutually agreed upon and confirmed via written
instrument (i.e. Statement of Work) which is signed by an authorized
representative of each party before such services are delivered. The
parties acknowledge and agree that such written instrument
shall
be subject to the terms and conditions of this Agreement unless specific
modifications to this Agreement are made to the contrary in such
Statement of Work.
1.5
Beginning on the Effective Date if a FBT customer desires to renew
its agreement with FBT without adding new or additional services
and/or products ("Renewal Contract"), Yhtiö shall act as
the exclusive reseller for FBT for such renewal of existing FBT
customer contracts ("Agent Services").
1.6
Yhtiö shall have the exclusive right to sell Yhtiö applications and
other management services to FBT Data Center customers.
ARTICLE
2 - FEES
2.1
Consideration. In consideration of furnishing the Services, described
herein, FBT shall pay to Yhtiö the monthly fee for the Services as
set forth on Exhibit B ("Monthly Service Fee").
2.2
Payment. All Monthly Service Fees shall be payable within thirty (30)
days of receipt of invoice. All Monthly Service Fees not paid within
thirty (30) days shall be subject to a monthly service charge of 1.5%
of the unpaid balance.
2.3 Adjustments and Fee Calculation. The Monthly Service Fees is based on Yhtiö's actual costs for providing the Services and includes a predetermined margin of thirty percent (30%) which shall be adjusted according to the Margin Plan (as defined below).
Within
forty-five (45) days of the Effective Date the parties shall mutually
agree on a sliding scale mechanism under which the thirty percent
(30%) predetermined margin set forth above shall be adjusted upward
or downward based on utilization rates (as well as other factors
which may be agreed to by the parties) which actually are occurring
in the Data Centers (the "Margin Plan"). The Margin Plan
shall be amended quarterly as necessary and included in the Budget
(as defined below). Yhtiö's actual costs for providing the Services
shall be calculated monthly and the Monthly Service Fees adjusted up
or down accordingly. Adjustments will be reflected in the next
monthly
invoice
for Services.
Yhtiö
shall prepare a budget quarterly ( the "Budget")
including the resources, costs and other expenses it expects to incur in
providing the Services for the upcoming quarter. FBT shall review and
promptly approve the Budget in the event there are any disputes
regarding the Budget, the parties shall meet and in good faith
negotiate a reconciliation of the
Budget.
2.4 Each party shall maintain records of all activities subject to
revenues, payments, fees, commissions and costs pursuant to this
Agreement. Each party shall permit a reputable independent certified
public accounting firm designated by the other party to have access,
at a mutually agreed upon time during normal business hours, to the
records and books of account which relate solely to this Agreement
for the purpose of determining whether the appropriate
fees
and commissions have been paid. Such audits may not be required more
often than once every year; provided, however, that either party may
audit the other within six (6) months of any audit in which a
discrepancy of five percent (5%) or greater is discovered. If a
discrepancy is discovered, the party in whose favor the error was
made will promptly pay the amount of the error to the other.
The
party requesting the audit will pay the cost of the audit, provided,
that if a discrepancy is discovered of five percent (5%) or greater
in favor of the party requesting the audit, then the audited party
will be required to pay the reasonable costs of the audit.
ARTICLE
3 - LIMITATION OF LIABILITY
3.1
Limitation of Remedies. Yhtiö's and FBT's entire liability and
exclusive remedy in any cause of action based on contract, tort or
otherwise in connection with any Services furnished pursuant to this
Agreement including its Exhibits shall be limited to the total fees
paid by FBT to Yhtiö. No action, regardless of form , arising out of
this Agreement may be brought by either party more than one (1) year
after the occurrence of the event giving rise to
such cause of action.
3.2
EXCEPT WITH RESPECT TO AMOUNTS PAYABLE ARISING OUT OF CLAIMS BASED
UPON WILLFUL, MALICIOUS OR GROSSLY NEGLIGENT CONDUCT OF THE LIABLE
PARTY, NEITHER YHTIÖ NOR ANYONE ELSE WHO HAS BEEN
INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE SERVICES
SHALL IN ANY
EVENT WHATSOEVER BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE OR
INCIDENTAL DAMAGES IN EXCESS OF THE TOTAL PRICE PAID BY FBT TO YHTIÖ
(INCLUDING
DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF
BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR
INABILITY TO USE THE SERVICES EVEN IF FBT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
ARTICLE
4 - PROPRIETARY INFORMATION
4.1
For purposes of this Agreement, the term "Proprietary
Information" shall mean all of the information, data and
software furnished by one party to the other, whether in oral,
written, graphic or machine-readable form, which may include but not
be limited to, code, software tool specifications, functions and
features, integration and shared data block specifications, financial
statements,
corporate and stock information, file layouts, marketing strategies,
business, product or acquisition plans, current business
relationships or strategies and customer lists. "Proprietary
Information" shall not include information which: (a) is or
becomes available to the general public through no fault of either
party; (b) is independently developed by non-disclosing party; (c) is
rightfully received by the non-disclosing party from a third party
without a duty of confidentiality; or (d) is required to be disclosed
by court order or operation of law. Before disclosing any Proprietary
Information under court order or operation of law, the non-disclosing
party shall provide the
disclosing
party reasonable notice and the opportunity to object to or limit
such disclosure.
4.2
Each party acknowledges that, in and as a result of visit(s) to the
other
party's facilities and/or discussions with a party's officers and
employees, a party shall or may be making use of or acquiring
Proprietary Information. As a material inducement to disclose such
Proprietary Information, each party covenants and agrees that it
shall not, except with the prior written consent of the other party,
at any time directly by itself or indirectly through any agent or
employee: (i) copy, modify, disclose, divulge, reveal, report,
publish or transfer to any person or entity, for any purpose
whatsoever, any Proprietary Information or (ii) use Proprietary
Information for any purpose other than in connection with the
consummation of the proposed transactions.
Failure
to mark any of the Proprietary Information as confidential, protected
or Proprietary Information shall not affect its status as part of the
Proprietary Information under the terms of this Agreement.
4.3
Each party covenants and agrees that all right, title and interest in
any Proprietary Information shall be and shall remain the exclusive
property of the disclosing party.
ARTICLE 5 - RETURN OF MATERIALS
Upon
termination of the activities for FBT or the termination of this
Agreement, each party will promptly deliver to the other all copies
and embodiments, in whatever form, of Proprietary Information and all
other materials containing any Proprietary Information, which is in
such
party's
possession or control, no matter where such material is located.
ARTICLE 6 - OWNERSHIP RIGHTS
Except as expressly set forth on any Statement of Work, all right, title and interest in and to all products, services and materials provided to FBT by Yhtiö under this Agreement shall be and remain the property of Yhtiö exclusively. FBT shall have no right, title or interest in or to any products, services or materials except as expressly set forth in this Agreement. Yhtiö retains shall retain all rights and title to any and all capital improvements and intellectual property it utilizes or contributes to the Data Centers or as part of the Services.
ARTICLE
7 - TERM AND TERMINATION
7.1
This Agreement shall commence on the Effective Date and continue in
full force and effect for four (4) years and the term of this
Agreement may, upon mutual agreement by the parties, be extended for
additional one (1) year
periods, unless terminated as provided herein.
7.2
If either party (the "Defaulting Party") materially
defaults in the performance of its obligations under this Agreement,
and if such default is not cured within ninety (90) days after
written notice is given to the Defaulting Party specifying the
default, then the other party (the "Aggrieved Party") may,
by giving written notice to the Defaulting Party, terminate this
Agreement as of the date specified in the notice of termination.
7.3
Each party, insofar as it becomes a Defaulting Party, agrees that,
upon receipt of any notice of default, it will immediately commence
all commercially reasonable efforts to cure the specified default and
to commit the resources necessary at the Defaulting Party's expense,
to accomplish such cure as promptly as is reasonably possible.
7.4
Upon any termination of this Agreement, Yhtiö will assist and comply
with FBT's reasonable directions to cause the orderly transition and
migration of the Services to FBT or a third party contractor to whom
FBT chooses to transfer the Services.
ARTICLE 8 - EMPLOYEES
Yhtiö
may, but shall not be obligated to hire as employees of Yhtiö the
current FBT employees listed in Exhibit C. As part of the Services,
regardless of whether such employees are hired by Xxxxx, as of the
Effective Date, Yhtiö shall have management control of such
employees, but unless hired
by Yhtiö FBT shall remain the employee's employer for all purposes,
including, but not limited to payroll, taxes, insurance and benefits.
FBT agrees to reasonably assist Xxxxx in the hiring of any of the
employees pursuant to this Article.
ARTICLE
9 - TAXES
Yhtiö
shall be paid its compensation without any deductions made whatsoever
for state or federal taxes of any kind. Yhtiö agrees to pay all
applicable federal and/or state taxes and all local excise, sales,
use, or other taxes which arise as a result of the services performed
by Yhtiö or any
employee of Yhtiö under this Agreement.
ARTICLE 10 - INDEPENDENT CONTRACTOR STATUS
It
is expressly agreed and understood between FBT and Yhtiö that Xxxxx
(and any person employed by Xxxxx) is
performing the Services, Agent Services hereunder as an independent
contractor and is neither the employee nor the agent
of or on behalf of FBT.
ARTICLE 11 - NO WAIVER OR MODIFICATION
This
Agreement may not be changed or terminated unilaterally and no
change, termination or attempted waiver or any of the provisions
hereof shall be binding unless in writing
and signed by both parties.
ARTICLE 12 - CONTINUATION
Neither
party shall sell, transfer, assign or subcontract any right or
obligation hereunder without the prior written consent of the other
party. Any act in derogation of the foregoing
shall be null and void.
ARTICLE 13 - SEVERABILITY
Should any provision hereof be deemed, for any reason
whatsoever,
to be invalid or inoperative, such provision shall be deemed
severable and shall not affect the force and validity of other
provisions of this Agreement.
ARTICLE 14 - GOVERNING LAW AND EXCLUSIVE JURISDICTION
This
Agreement shall be construed and interpreted in accordance with
and be governed by the laws of Finland.
ARTICLE
15 - FORCE MAJEURE
Neither
Yhtiö nor FBT shall be held responsible for any delay or failure in
performance under this Agreement arising out of causes beyond its
control, or without its fault or negligence. Such causes may include,
but are not limited to, fires, terrorist acts, strikes, embargoes,
shortages or supplies of raw materials, or components or finished
goods, acts of God, acts of regulatory
agencies or national disasters.
ARTICLE 16 - COUNTERPARTS
This
Agreement many be executed in any number of counterparts.
ARTICLE 17 - ENTIRE AGREEMENT
The
provisions herein constitute the entire agreement between the parties
and supersede all prior agreements, oral or written, and all other
communications between the parties, including any and all supplier or
distribution agreements. No term or condition contained in any
document provided
by
one party to the other party pursuant to this Agreement shall be
deemed to amend, modify, or supersede or take precedence over the
terms and conditions contained herein.
ARTICLE 18 - INSURANCE
Yhtiö
will place FBT and all affiliates designated by FBT which are
primarily related to the Data Centers under Yhtiö's umbrella
insurance plan.
ARTICLE 19 - RIGHT OF FIRST REFUSAL
In
the event FBT desires to sell any of the Data Centers or its
collocation business to a third party, FBT shall deliver a written
notice to Yhtiö stating the price, terms, and conditions of the
proposed sale and the identity of the proposed transferee (a "Sale
Notice"). Within a reasonable time period not to exceed fourteen
(14) days after receipt of a Sale Notice by Yhtiö,
Yhtiö shall have the right, but not the
obligation to purchase such Data Center or its collocation business
so offered at the price and on the terms and
conditions stated in the Sale Notice.
ARTICLE 20 - COMPLIANCE
FBT
represents and warrants to Yhtiö that as of the Effective Date the
operations of the Data Centers and the provision of services to its
customers is compliant with: (a) FBT service level agreements with
its Data Center customers; (b) its vendor contracts; (c) the
operating lease and real estate covenants for each Data Center; and
(c) laws and municipal regulations
and/or filing requirements related to the Data Centers.
ARTICLE 21 - ASSIGNMENT/CHANGE OF CONTROL
Neither
party may, without the prior written consent of the other party,
assign this Agreement, in whole or in part, either voluntarily or by
operation of law, and any attempt to assign this Agreement in
violation of this Section shall be a default of the Agreement
pursuant to Article 7.2 above and such assignment shall be null and
void. In the event the majority owner of a party becomes less than a
50% owner and/or the majority owner's equity position drops below 35%
of said party such events shall be deemed assignments for purposes
hereof ("Change of Control Events"). An owner of a party
which has a Change of Control Event shall have thirty (30) days from
the date of the Change of Control Event to declare such event an
assignment, or such event is waived as an assignment.
IN
WITNESS WHEREOF,
the parties acknowledge that each has fully read and understood this
Agreement, and, intending to be legally bound thereby, executed this
Agreement on the date set forth above.
FINNISH
BUSINESS TECHNOLOGY
OY YHTIÖ OY
Signature Signature
--------------------------
-------------------------
Name Name
------------------------------- --------------------------
Title Title
------------------------------- ---------------------------
Exhibit A
FBT Data Centers
Data Centers:
*
*
*
*
*
*
*
*
*
Exhibit B
1. Yhtiö Responsibilities
1.1
Yhtiö to provide the operational management services and support for
the Data Centers including, but not limited to:
1.1.1
Back-office support: customer billing; customer collections;
financial
reporting and analytical support; certain insurance coverages
1.1.2 Vendor management: negotiating vendor contracts; making vendor and
operating
and real estate lease payments; provisioning certain vendor
services.
1.1.3
Sales and customer support: providing customer support; executing
new
sales
and renewals or FBT services; reselling FBT services bundled with
other
services and products to New Customers.
1.1.4
Technical operations: facility management; security services;
on-going facilities maintenance and repair as required by FBT but not
its
landlord's.
1.1.5 Strategic functions: strategy planning, capital investment advice,
business and corporate development advice.
2. Service Levels:
Yhtiö
shall perform the Services, Agent Services and Reseller Services in
a
manner
that is compliant with:
(a) FBT service level agreements with its Data Center customers;
(b) vendor contracts;
(c) operating lease and real estate covenants for each Data Center;
(d) laws
and municipal
regulations and/or filing requirements related to the Data Centers.
3. Payment
On
the first day of each month beginning on the Effective Date, FBT
shall pay Yhtiö a Monthly Service Fee of EUR
___________
subject to the adjustments pursuant to
Article 2.3 in the Agreement.
4. Banking
The
parties agree that regarding the collection and deposit of money from
customers Yhtiö shall maintain a separate FBT bank account and act
only as an ndependent contractor on behalf of FBT.
Exhibit C
Employees
1. xxxxxxxxxx
2. yyyyyyyyyy
3. zzzzzzzzzz
4. ööööööööö
5. ååååååååå