ADMINISTRATIVE SERVICES AGREEMENT
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THIS ADMINISTRATIVE SERVICES AGREEMENT is entered into as of August 31, 1998
("Services Agreement") by and among APPLIED INTELLIGENCE GROUP, INC., ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Seller"), and THE NETPLEX GROUP,
INC., a New York corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Netplex")
WHEREAS Netplex is acquiring Assets of the Business of Seller, as such terms are
defined in the Asset Acquisition Agreement, as amended ("Asset Agreement")
between Seller and Netplex;
WHEREAS Netplex desires to operate the Business at the Premises of Seller; and
WHEREAS the parties agree that Seller shall make available to Netplex, and
Netplex shall compensate Seller for, certain administrative services as
hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and the agreements herein
contained, the parties hereto agree as follows:
1. Definitions:
1.1. "Premises" shall mean the property located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
1.2. "Services" shall be the administrative services identified on
Schedule A which is attached hereto and incorporated herein by
reference.
1.3. "Term" shall mean the period of time from the Effective Date until
December 31, 2001, unless earlier terminated pursuant to the terms
of this Services Agreement.
1.4. "Effective Date" shall be September 1, 1998.
1.5. "Sublease" shall mean the Sublease between the parties hereto
executed of even date herewith for the subleasing of a portion of
the Premises by Netplex from Seller.
1.6. "Netplex's Proportionate Share" shall have the same meaning as
given such term in said Sublease.
1.7. "Asset Acquisition Agreement" shall refer to the Asset Acquisition
Agreement executed between the parties hereto on August 31, 1998
and any amendments thereto.
1.8. "Earn-Out Agreement" shall refer to the Earn-Out Agreement executed
between the parties hereto on September 30, 1998 and any amendments
thereto.
2. Services Provided:
2.1. Subject to the terms of this Services Agreement, during the Term
hereof:
2.1.1.
Seller shall provide to Netplex the Services identified
on Schedule A hereto at the times set forth thereon.
Seller shall provide such Services in a professional,
business-like manner consistent with its past practices.
2.1.2. Except as otherwise set forth in this Services Agreement,
Seller shall not be obligated to increase the type of
Services, the frequency of any of the Services, or the
terms or conditions of any of the Services unless Seller
and Netplex agree to the cost and scope of the same.
2.1.3. Subject to the terms, covenants and conditions of this
Services Agreement, in the event that Netplex, at any
time(s) pursuant to the Sublease, increases the amount of
space in the Premises which it has the right to occupy to
an amount less than all of the Premises ("Additional
Space"), Seller, subject to the terms of said Sublease,
shall provide to Netplex the same type of Services for
such Additional Space which Seller was providing to
Netplex for its then Existing Space.
2.1.4. Neither Netplex nor Seller shall interfere with the use
of the Services by the other party.
2.1.5. Notwithstanding anything to the contrary in this Services
Agreement, Seller may discontinue offering any of the
Services on sixty (60) days notice to Netplex.
2.1.6. Notwithstanding anything to the contrary in this Services
Agreement, Seller may upgrade, modify or otherwise change
the equipment, software, carrier, supplier or other means
used to provide the Services so long as the nature and
quality of the Services provided pursuant hereto remains
substantially similar to those originally contracted for
by Netplex pursuant to this Services Agreement. Seller
shall use its best efforts to notify Netplex ninety (90)
days in advance of any material changes in the Services.
In the event that Seller upgrades, modifies or otherwise
changes the Services as allowed by this Section, for
purposes of determining the amount due Seller for the
Services for the purposes of this Services Agreement, the
cost of the same shall be deemed as an
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actual cost of Seller in the month that the cost(s) for
such upgrade, modification or change is incurred by
Seller. Notwithstanding anything to the contrary herein,
if Netplex requests an upgrade, modification or change on
hardware, software or any other type of equipment owned
by Netplex and which is solely used by Netplex but for
which services are provided by Seller pursuant to this
Services Agreement, Netplex shall solely bear the total
cost of any such upgrade, modification or change;
provided however, to the extent that the labor portion
for the installation of any such equipment is
accomplished within the labor costs of the monthly
charges already paid for by Netplex to Seller for the
time period in which the same is installed, no additional
cost shall be incurred by Netplex; and provided further,
if any additional labor on Seller's part is needed to
complete the installation, Netplex shall pay for the same
at Seller's then current rates.
2.1.7. Notwithstanding anything to the contrary in this Services
Agreement, Netplex may discontinue the use of any of the
Services (i) upon sixty (60) days prior written notice to
the Seller or (ii) at the end of the notice period which
Seller must give to any third party provider who is
providing the Services after Netplex gives written notice
to Seller of its decision to terminate such Services,
whichever is longer. In the event that Netplex
discontinues any of the Services and such discontinuation
results in the imposition of any penalty or liquidated
damages ("Damages") to Seller from the third party
providing such Service, Netplex shall reimburse Seller
for all of such Damages. Seller, upon request from
Netplex, shall provide to Netplex such documentation as
is reasonably necessary to allow Netplex (i) to determine
what notice must by given to a third party providing any
of the Services and (ii) to determine what, if any,
penalty or liquidated damages provision may be applicable
to a particular Service.
2.1.8. Notwithstanding anything to the Contrary in this Services
Agreement, in the event that Netplex exercises its right
under the Sublease to occupy all of the Premises, Seller,
as of the date upon which Netplex has the right to occupy
all of the Premises, shall not be obligated to offer or
otherwise provide any Services to Netplex.
2.1.9. Seller shall allow Netplex to use the equipment located
in the Netplex/AIG Space identified in the Sublease as of
September 30, 1998 ("Loaned Equipment"). The parties
agree and understand that said Loaned Equipment is
currently under lease from one or more third parties, and
that said leases also cover equipment which is not part
of the Loaned Equipment. Netplex shall not permanently
remove the Loaned Equipment from the Leased
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Premises as defined in the Sublease without the prior
written consent of Seller. Seller shall keep said lease
payments on the Loaned Equipment current. At the end of
each lease covering any or all of the Loaned Equipment,
Seller shall exercise its option to purchase the same and
shall transfer title to such portion of the Loaned
Equipment acquired thereby to Netplex without further
cost; provided, that prior to such time, no ownership
interest to said Loaned Equipment shall pass to Netplex.
On or before Closing as defined in the Asset Agreement,
Seller shall provide to Netplex a list of the Loaned
Equipment.
2.2. During the Term of this Services Agreement, Netplex shall provide
Seller the services set forth on Schedule A-1 hereto.
3. Payment for Services:
3.1. For the Services rendered during the Term of this Services
Agreement, Netplex, subject to the terms of this Services
Agreement, shall pay Seller the amount derived from Monthly Netplex
Cost Formula set forth on Schedule A for each of the Services then
provided pursuant to this Services Agreement. Any sums due Netplex
for services rendered to Seller pursuant to Schedule A-1 shall be
credited by Seller to the amount due to Seller hereunder from
Netplex. Moreover, if any deposit is required after the
commencement of this Services Agreement to be paid by Seller in
relation to providing any of the Services, Netplex shall pay Seller
its then current Proportionate Share of the same. Upon
discontinuation of the Service(s) for which the deposit was paid or
upon termination of this Services Agreement, whichever first
occurs, Seller shall refund to Netplex its Proportionate Share of
such deposit without interest.
3.2. Said payment from Netplex shall be due within twenty (20) days of
the date that Netplex receives the invoice(s) for Services. Seller
shall provide Netplex with such reasonable documentation as
requested by Netplex to support the invoiced charges for Services.
An initial payment of fifteen thousand dollars ($15,000)
("Prepayment") shall be made upon execution of this Services
Agreement by Netplex as a prepayment for the first month's
estimated Services. Such Prepayment shall be applied against future
invoices received by Netplex from Seller.
3.3. Netplex shall pay Seller interest on any amount not paid when due
pursuant to this Services Agreement at the rate of thirteen percent
(13%) per year from the date any such payment was due until such
amount is paid in full.
3.4. If the actions of Netplex or Netplex's requested changes in any
Service cause the cost of any of the Services to increase, Netplex,
in addition to the
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amount(s) set forth on Schedule A, shall be solely liable for all
of such increase in cost.
4. Insurance: Each party shall at all times during the term of this Services
Agreement maintain (i) comprehensive general liability insurance with
coverage limits of at least one million dollars ($1,000,000) per occurrence
and (ii) workers compensation and employers liability insurance. Such
policies of insurance, to the extent allowable by Oklahoma law, shall
contain a waiver of subrogation against the other party hereto.
5. Termination:
5.1. This Services Agreement may be terminated by Seller if:
5.1.1. Netplex fails to make any payment due hereunder within
fifteen (15) days after the due date thereof
5.1.2. Netplex breaches any other term or condition of this
Services Agreement and such breach is not remedied by
Netplex within thirty (30) days of receipt of Notice
thereof from Seller detailing the nature of the breach,
5.1.3. Netplex enters into bankruptcy, whether voluntarily or
involuntarily, or is declared or adjudged insolvent or
makes a general assignment for the benefit of creditors,
or
5.1.4. Netplex breaches the Asset Agreement, the Sublease and/or
the Earn-Out Agreement between Netplex and Seller and
fails to cure such breach(es) within the cure period, if
any, provided in the applicable agreement.
5.1.5. Seller ceases to conduct its business operations at the
Premises or has provided Netplex with sixty (60) days
prior notice of the termination of this Services
Agreement.
5.2. This Services Agreement may be terminated by Netplex if:
5.2.1. Seller enters into bankruptcy, whether voluntarily or
involuntarily, or is declared or adjudged insolvent or
makes a general assignment for the benefit of creditors,
or
5.2.2. Seller breaches any term or condition of this Services
Agreement and such breach is not remedied by Seller
within thirty (30) days of receipt of Notice thereof from
Netplex detailing the nature of the breach.
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5.2.3. Seller breaches the Asset Agreement and/or the Sublease
between Netplex and Seller and fails to cure such
breach(es) within the cure period, if any, provided in
the applicable agreement.
6. Arbitration: Any controversy or claim arising out of or relating to this
Services Agreement, or its breach, or its validity or interpretation, except
claims involving necessary third parties who refuse to participate or claims
seeking injunctive or equitable relief, shall be settled by binding
arbitration in accordance with the then current Commercial Arbitration Rules
of the American Arbitration Association ("AAA") subject, however, to the
following:
6.1. The location for the arbitration shall be at a location in Oklahoma
County, Oklahoma agreed to by the parties; provided, however, in
the event that the parties cannot agree on such location, the
arbitration shall be at a location in Oklahoma County, Oklahoma
designated by the AAA.
6.2. Such arbitration shall be heard and determined by an arbitrator in
accordance with the then current rules or regulations of the AAA
relating to commercial disputes. The arbitrator shall be neutral
and shall be selected by the parties; provided however if they
cannot agree upon such neutral arbitrator, the arbitrator shall be
appointed by the AAA. Such neutral arbitrator shall be a person
with experience in handling disputes relating to the management
and/or leasing of commercial property.
6.3. The arbitration award shall be binding on the parties and may be
enforced in any court of competent jurisdiction.
7. Other Terms:
7.1. Remedies. The remedies provided in this Services Agreement are
exclusive.
7.2. Modification. Any change in the Services as permitted in this
Services Agreement shall be deemed an authorized modification of
this Services Agreement. No other modification of this Services
Agreement is permitted except with the written consent of both
parties.
7.3. Attorneys' fees. The prevailing party in any action to enforce this
Services Agreement, including any Arbitration under Section 6
hereof, shall be entitled to recover from the other party all of
the prevailing party's costs incurred in such action, including its
reasonable attorneys' fees.
7.4. Choice of Law, Venue. This Services Agreement shall be governed by
Oklahoma law. Any action to enforce any provision of this Services
Agreement shall be brought only in a court of appropriate
jurisdiction located in the State of Oklahoma.
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7.5. Integration. This Services Agreement constitutes the entire
agreement between the parties hereto on the subject matter hereof
and supercedes and replaces any prior or contemporaneous agreement
on said subject.
7.6. Binding, Assignment. This Services Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns, and no other person or
entity shall have any right (whether third party beneficiary or
otherwise) hereunder. This Services Agreement may not be assigned
by any party without the prior written consent of the other party.
7.7. Waiver. Unless otherwise specifically agreed in writing to the
contrary: (a) the failure of any party at any time to require
performance by the other of any provision of this Services
Agreement shall not affect such party's right thereafter to enforce
the same; (b) no waiver by any party of any default by any other
shall be valid unless in writing and acknowledged by an authorized
representative of the nondefaulting party, and no such waiver shall
be taken or held to be a waiver by such party of any other
preceding or subsequent default; and (c) no extension of time
granted by any party for the performance of any obligation or act
by any other party shall be deemed to be an extension of time for
the performance of any other obligation or act hereunder.
7.8. Notices. All notices demands and other communications pertaining to
this Services Agreement ("Notices") shall be in writing addressed
as follows: If to Seller:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
The viaLink Company
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Associates, P.C.
▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Netplex:
The Netplex Group, Inc.
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, President
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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with a copy to:
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esq.
▇▇▇▇▇▇ Price ▇▇▇▇▇▇▇ & Day
22nd Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Notices shall be deemed given five (5) business days after being
mailed by certified or registered United States mail, postage
prepaid, return receipt requested, or on the first business day
after being sent, prepaid, by nationally recognized overnight
courier that issues a receipt or other confirmation of delivery to
the appropriate recipient of such Notice. Any party may change the
address to which Notices under this Services Agreement are to be
sent to it by giving written notice of a change of address in the
manner provided in this Services Agreement for giving Notice.
7.9. Counterparts; Facsimile. This Services Agreement may be signed in
any number of counterparts with the same effect as if the signature
on each such counterpart were on the same instrument. This Services
Agreement and any counterparts may be executed by facsimile with
the same effect as if the signature were an original.
7.10. Construction. The headings of the Sections of this Services
Agreement are for convenience only and in no way modify, interpret
or construe the meaning of specific provisions of this Services
Agreement.
7.11. Severability. In case any one or more of the provisions contained
in this Services Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality, and
enforceability of the remaining provisions will not in any way be
affected or impaired. Any illegal or unenforceable term shall be
deemed to be void and of no force and effect only to the minimum
extent necessary to bring such term within the provisions of
applicable Laws and such term, as so modified, and the balance of
this Services Agreement shall then be fully enforceable.
7.12. Neither party may assign or sublease its rights or obligations
under this Services Agreement without the prior written consent of
the other party, which consent shall not be unreasonably withheld.
The use of third parties to provide the Services under this
Services Agreement shall not be deemed a violation of this Section.
7.13. Any arbitration arising out of this Services Agreement must be
commenced within one (1) year from the date upon which such cause
of action shall have first accrued. Any other actions arising out
of this
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Services Agreement to the extent that they are excluded from the
provisions of Section 6 of this Services Agreement must be
commenced within the applicable Statute of Limitations prescribed
by law.
7.14. Seller and Netplex are strictly independent contractors. Neither
party has the right to bind the other in any manner, and nothing in
this Services Agreement shall be interpreted to make either party
the agent or legal representative of the other or to make the
parties joint venturers or partners, nor shall either party
represent or imply to other persons or entities that any such
relationship exists.
7.15. Notwithstanding anything to the contrary in this Services
Agreement, Seller shall not be responsible for failure of
performance due to any cause(s) beyond its reasonable control,
including, but not limited to, accidents, acts of God, labor
disputes, or the actions of any government agency or common carrier
or other third party over whom Seller has no reasonable control.
7.16. Netplex and Seller shall each keep confidential and not, directly
or indirectly, reveal, report, publish, disclose or transfer any
confidential information ("Confidential Information") obtained by
it with respect to the other in connection with this Services
Agreement. Notwithstanding the foregoing limitation, neither party
shall be required to keep confidential or return any Confidential
Information that (a) is known or available through other lawful
sources, not bound by a confidentiality agreement with the
disclosing party, (b) is or becomes publicly known or generally
known in the industry through no fault of the receiving party or
its agents, (c) is required to be disclosed pursuant to Law
(provided the other parties are given reasonable prior notice), or
(d) is developed by the receiving party independently of the
disclosure by the disclosing party. This section 7.16 shall survive
the termination of this Services Agreement.
7.17. The parties agree and acknowledge that they have read this Services
Agreement. The persons signing below on behalf of the respective
parties represent and warrant that they have the authority to bind
the party on whose behalf they have executed this Services
Agreement.
7.18. All of Sections 3 and 6 and Subsections 7.1, 7.2, 7.3, 7.4, 7.5,
7.6, 7.7, 7.10, 7.11, 7.13, 7.15, 7.16 and this 7.18 shall survive
the termination of this Services Agreement.
SIGNATURE PAGE FOLLOWS
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WHEREFORE, the parties have executed this Services Agreement
as of the date first above written.
THE NETPLEX GROUP, INC.
By:
Name:
Title:
APPLIED INTELLIGENCE GROUP, INC.
By:
Name:
Title:
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