BETA SYSTEMS SUPPORT SERVICES AGREEMENT FOR PROGINET CORPORATION DATED AS OF OCTOBER 1, 2008
Exhibit 10.24
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BETA
SYSTEMS SUPPORT SERVICES AGREEMENT
FOR
PROGINET CORPORATION
DATED
AS OF OCTOBER 1, 2008
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BETA
SYSTEMS SUPPORT SERVICES AGREEMENT
This
Support Services Agreement (the “Services Agreement”),
dated as of October 1, 2008 (the “Effective Date”), is
between Beta Systems Software of Canada Ltd. (“Beta Systems” or
“Beta”), and
Proginet Corporation, a Delaware corporation with its principal offices at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (“Proginet”). Proginet
and Beta Systems may be referred to in this Services Agreement individually as a
“Party” and
together as the “Parties.”
WHEREAS, pursuant to that
Asset Exchange Agreement (the “Asset Exchange
Agreement”), dated as of the date hereof, by and among Proginet and Beta
and Beta Systems Software of North America, Inc. (“Beta America”),
certain license and maintenance agreements relating to the Transferred Products
(as defined herein) have been transferred to Proginet by Beta America or one of
its Affiliates; and
WHEREAS, pursuant to that
Master Distributor Agreement, dated as of the date hereof, by and between the
Parties (the “Master
Distributor Agreement”), Beta Systems Software AG has become the
exclusive distributor of the Transferred Products in Europe, Eastern Europe, and
Israel; and
WHEREAS, in connection with
the execution of the Asset Exchange Agreement and the Master Distributor
Agreement, Beta has agreed to provide, and Proginet has agreed to purchase,
certain maintenance and support services for the Transferred Products on the
terms and conditions set forth herein;
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants set forth herein, and
intending to be legally bound, Beta Systems and Proginet agree as
follows:
ARTICLE
I - DEFINITIONS AND CONVENTIONS; TRANSITION
Section
1.01. Definitions. Certain
terms used in this Services Agreement are defined in Schedule
1.01. Other terms used in this Services Agreement are defined
in the context in which they are used.
Section
1.02. Conventions. Unless
the context otherwise requires, in this Services Agreement: (i)
“Article,” “Section,” “Paragraph,” and “Schedule” refer to an Article, Section,
Paragraph, or Schedule of this Services Agreement; (ii) “hereof,” “herein,”
“hereby,” and similar words refer to this Services Agreement; (iii)
words of gender include each other gender; and (iv) “including” means “including
without limitation.”
Section
1.03. Schedules. The
following Schedules are attached to, and constitute a part of, this Services
Agreement:
Schedule
1.01 Definitions
Schedule
2.01 Scope
of Services
Schedule
2.01-A Support
Level Requirements
Schedule
2.02 Customers
Schedule
3.01 Service
Fees
Schedule
5.02 Change
Control Process
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ARTICLE II -
SUPPORT SERVICES
Section
2.01. Responsibilities of Beta
Systems. Beta Systems will provide the support and maintenance
services described on Schedule 2.01 (the
“Services”) to
Proginet in accordance with the terms and conditions of this Services
Agreement. Without limiting the foregoing, Beta Systems will: (i)
provide ▇▇▇▇▇ ▇ & ▇ ▇▇ ▇▇▇▇▇ ▇, ▇ & 3 (depending on the Customer’s
geographic location) technical support under all Customer Contracts; (ii)
maintain an on-line inquiry capability for Proginet; (iii) provide to Proginet
the reports specified in Schedule 2.01, and
(iv) provide the Services in accordance with the Support Levels set forth on
Schedule
2.01-A.
Section
2.02. Responsibilities of
Proginet. Subject to the terms, specifications and
qualifications in Schedule 2.01,
Proginet will: (i) provide ▇▇▇▇▇ ▇ technical support for Proginet Customers
based in Non-European Locations for the Transferred Products, such support to
commence 90 days following the Effective Date; (ii) enter into and
administer all Proginet Contracts at its own expense; (iii) provide
direction concerning the prioritization of Beta System’s provision of the
Services; (iv) provide Beta Systems at least 30 days’ prior notice of the
termination or expiration of any Proginet Contract.
Section
2.03. Subcontractors. Beta
Systems shall directly render the Services exclusively through its employees and
agents under its control. Prior to subcontracting any of the Services, Beta
shall notify Proginet of any proposed subcontractor, and upon Proginet’s
reasonable and good faith objection to either the identify of the proposed
subcontractor or the fact that Beta Systems is subcontracting such Service, the
Parties shall meet and attempt to mutually resolve the issue. Failure
by Proginet to respond to such Beta Systems’ notice shall not prevent Beta
Systems from engaging any proposed subcontractor. No subcontracting
shall release Beta Systems from its responsibility for its obligations under
this Services Agreement. Beta Systems shall be responsible for the work and
activities of each of Beta’s agents, including compliance with the terms of this
Services Agreement, including with respect to Confidential Information under
Article VII
Section
2.04. No
Exclusivity. Nothing in this Services Agreement will prevent
Proginet from providing to itself (or contracting a third party to provide) all
or any part of the Services. In the case of any such insourcing or
resourcing by Proginet, the Parties shall negotiate an equitable reduction in
the Service Fees set forth in Schedule 3.01 in
respect of such reduced Service responsibility.
ARTICLE III -
BILLING AND COLLECTION
Section
3.01. Service Fees. In
consideration of the Services provided by Beta Systems to Proginet during the
Term, Proginet will pay to Beta Systems the Service Fees calculated in
accordance with Schedule 3.01.
Section
3.02. Payment
Terms. On or about the 10th day of each calendar month,
Proginet will deliver a report detailing the gross revenue received under the
then-current Proginet Contracts from support and maintenance services for the
Transferred Products in the prior month. The Service Fees due to Beta
Systems per Schedule
3.01 will be computed based on such report, and the calculated amount
promptly remitted to Beta Systems. In the case of other fees due to
Beta Systems, Proginet shall pay all undisputed amounts to Beta Systems
hereunder within 30 days of receipt of invoices submitted by Beta
Systems.
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Section
3.03. Method of
Payment. Proginet shall remit all payments via electronic
funds transfer in US Dollars via ACH CCD + or CTX format to the following
account (or such other account as from time to time may be designated in writing
by Beta Systems for this purpose): [***]
Section
3.04. Unpaid Invoices. Any
undisputed amount remaining unpaid for more than 30 days from the due date shall
accrue interest at a rate of the lesser of 1.5% per month or the highest rate
allowed by Law. Beta Systems may add the amount of any such interest
or late charge to an invoice rendered by Beta Systems to Proginet pursuant to
Section 3.02. With respect to amounts disputed in good faith by
Proginet, the undisputed portion shall be paid as provided in this Services
Agreement. Upon resolution of the disputed portion, any amounts owed
to Beta Systems shall be paid promptly with interest at the rate above, which
shall accrue from the date these amounts were originally due. The
Parties will resolve any such dispute in accordance with the procedures set
forth in Section 11.05.
Section
3.05. Taxes. The Parties’
responsibilities for taxes are as follows:
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(a)
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The
Services Fees paid by Proginet pursuant to Schedule 3.01
shall be inclusive of all sales, services, use or VAT taxes applicable to
the Services provided hereunder. Each Party shall be responsible for taxes
based on its own net income, employment taxes of its own employees, and
for taxes on any property it owns or leases. Each Party shall
comply with all withholding and remittance
obligations.
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(b)
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The
Parties will cooperate with each other to minimize their tax liabilities
to the extent legally permissible. Each Party will promptly
notify the other Party of any claim for taxes asserted by any applicable
taxing authority for which the other Party is responsible
hereunder. The Parties will coordinate their response to, and
settlement of, any such claim. With respect to any claim
arising out of a form or return signed by a Party, such Party will be
entitled to control the response to, and settlement of, such claim but the
other Party will have the right to participate to the extent it is
affected. A Party will be entitled to any tax refunds or
rebates granted in respect of taxes paid by that
Party.
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Section
3.06. Accountability and
Recordkeeping. Proginet will maintain complete records of, and
supporting documentation for, all monthly reports sent to Beta Systems pursuant
to Section 3.02. Beta Systems will maintain complete records of, and
supporting documentation for all Services provided to Proginet. All
such records and supporting documentation shall be made available for review by
either Party or its agents on an annual basis. Proginet shall also have
the right, upon reasonable notice, to audit Beta Systems’ performance of the
Services on an annual basis.
ARTICLE
IV - REPRESENTATIONS AND WARRANTIES
Section
4.01. Representations and
Warranties of Both Parties. Each Party represents and warrants
to the other Party that: (i) such Party is duly organized, validly existing, and
in good standing under the Laws of its jurisdiction of organization; (ii) such
Party has all requisite corporate or other power and authority to enter into
this Services Agreement and to perform its obligations hereunder; (iii) the
execution, delivery and performance of this Services Agreement by such Party
have been duly authorized by all requisite corporate or other action on the part
of such Party; (iv) this Services Agreement has been duly executed and delivered
by such Party and (assuming the due authorization, execution and delivery hereof
by the other Party) is a valid and binding obligation of such Party, enforceable
against such Party in accordance with its terms; and (v) the execution, delivery
and performance of this Services Agreement by such Party will not: (a) conflict
with or result in a violation or breach of any of the charter, bylaws or other
organizational documents of such Party; (b) conflict with or result in a
violation or breach of any Law or Order applicable to such Party; or (c)
conflict with or result in a violation or breach of any Contract to which such
Party is a party.
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Section
4.02. Additional Warranties of
Beta Systems.
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(a)
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Viruses. Beta
shall use commercially reasonable efforts to prevent the introduction of
viruses, Trojan horses, worms, spyware or similar items into the systems
utilized to provide the Services, provided that in the event a virus or
similar item is found to have been introduced into such systems, Beta
shall use commercially reasonable efforts to mitigate the effects of the
virus or similar item and, if the virus or similar item causes a loss of
operational efficiency or loss of data, mitigate and restore such
losses.
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(b)
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Disabling
Code. Except with respect to pre-existing license key
functionality built into the Transferred Products, Beta shall not
knowingly insert into the software used to provide the Services any code
that would have the effect of disabling, damaging, erasing, delaying or
otherwise shutting down all or any portion of the Services. If at any time
the licensor of any Beta third party software shall invoke or threaten to
invoke any disabling code in Beta third party software licensed to Beta
which could adversely affect the Services, Beta shall use commercially
reasonable efforts to preclude such action on the part of such licensor.
If Beta unknowingly inserts in the software used to provide the Services
any such disabling code, Beta shall use commercially reasonable efforts to
mitigate the effects of same.
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(c)
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Defects. The
provision of the Services by Beta shall be free from defects in materials,
design, and workmanship, and in conformance with any applicable
documentation, manuals, specifications, or documented requirements
existing as of the Effective Date, and shall be free and clear of any
liens, claims, charges, debts or other encumbrances other than rights of
third parties disclosed to Proginet. Proginet’s sole and exclusive remedy
for any breach of such warranty will be the correction by Beta of any
defects in the provision of the Services that cause the Services to not
substantially conform to the applicable design
specifications.
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(d)
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Data
Privacy. The Services will meet or exceed all privacy,
data segregation and data and physical security requirements imposed by
Law and will remain in compliance at all times in accordance with the
requirements of Section 5.02 and Article
VII.
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Section
4.03. Pass-Through
Warranties. With respect to all third-party products and
services purchased by Beta Systems for Proginet (if any) in connection with the
provision of the Services, Beta will pass through or assign to Proginet the
rights Beta obtains from the manufacturers and/or vendors of such products and
services (including warranty and indemnification rights), all to the extent that
such rights are assignable; and, to the extent not assignable, Beta shall
exercise its commercially reasonable efforts to assist Proginet in enforcing
such warranties and rights.
Section
4.04. Continuing Representations
and Warranties. The representations and warranties contained
in this Article will survive the execution and delivery of this Services
Agreement and continue in effect during the Term.
ARTICLE
V - COVENANTS
Section
5.01. Covenants of Beta
Systems. Beta Systems covenants that (i) the Services will be
performed in a good and workmanlike manner in accordance with customary industry
standards applicable to the type of services being provided, (ii) Beta Systems
will use adequate numbers of qualified individuals with suitable training,
education, expertise, experience, know-how, competence and skill to perform the
Services, and (iii) Beta Systems has, or will have at the relevant time, the
resources, capacity, expertise and ability in terms of equipment, software,
know-how and personnel to provide the Services.
Section
5.02. Covenants of Both
Parties.
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(a)
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Each
Party will comply with all Laws and Orders applicable to its respective
business and facilities. Without limiting the generality of the
preceding sentence, and with respect to the Services, (i) Beta Systems
shall comply with all Laws and Orders applicable to it as a provider of
application maintenance and support services, generally, and the provider
of the Services, specifically, and (ii) Proginet shall comply with all
Laws and Orders applicable to (a) Proginet as the recipient of the
Services and (b) its lines of business or types of business activities
(“Proginet’s
Business”).
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(b)
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Notwithstanding
paragraph (a) above, Beta Systems will be required to comply with Laws and
Orders that are specific to Proginet’s Business solely to the extent that
(i) such Laws and Orders directly relate to and affect Beta Systems’
provision of the Services and its performance under this Services
Agreement, and (ii) Proginet provides advance written notice to Beta
Systems of the existence of Laws and Orders (and any changes with respect
thereto) that are specific to Proginet’s Business and the manner in which
Proginet requires Beta Systems to comply with such Laws and
Orders. Nothing in this Services Agreement will require Beta
Systems to undertake activities that would require it to apply to,
register with, or become authorized by any Governmental or Regulatory
Authority under Laws or Orders that are specifically applicable to
Proginet’s Business.
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(c)
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Any
changes to Beta Systems’ responsibilities under this Services Agreement as
a result of any changes to Laws or Orders that are specific to Proginet’s
Business after the Effective Date shall be agreed in writing between the
Parties pursuant to the Change Control Process set forth in Schedule
5.02.
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(d)
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Subject
to the foregoing, each Party covenants that such Party will obtain all
Permits (if any) required by such Party under Laws and Orders for which it
is responsible pursuant to this Section 5.02 in connection with the
performance of its obligations to the other Party
hereunder.
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ARTICLE
VI - PROPRIETARY RIGHTS
Section
6.01. Rights in Proginet’s
Products. All work products and other materials, including all
software programs in both source code, object code, reports, documents,
templates, studies, specifications, business methods, tools, methodologies,
processes, techniques, solution construction aids, analytical frameworks,
algorithms, know-how, products, documentation and abstracts, that Beta Systems
uses or develops (either independently or in concert with Proginet or third
parties) in connection with the provision of the Services to Proginet pursuant
to this Services Agreement (including development services delivered pursuant to
a Statement of Work under Schedule 3.01) and
all Intellectual Property rights therein or with respect thereto shall be and
remain the sole and exclusive property of Proginet. Beta Systems
agrees to cooperate in good faith with Proginet to execute any document or take
any other action required to effectuate the intent of this Section
6.01.
Section
6.02. Proprietary Rights in Third
Party Licensed Property. Subject to Proginet’s prior written
consent, Beta Systems may utilize third party technology, products and
Intellectual Property to facilitate its provision of the Services; provided, however, that no
such third party technology, products or Intellectual Property shall be embedded
in the Transferred Products or the Services without Proginet’s express written
consent (i) identifying the applicable third party materials and (ii) specifying
Proginet’s rights to use such third party materials in production following
delivery by Beta Systems.
Section
6.03. Grant of
License. Proginet grants to Beta Systems, solely for the
provision of the Services under this Services Agreement, a non-exclusive,
non-transferable, worldwide, royalty-free, term license to use, modify, support
and maintain the Transferred Products (the “Harbor License”) to
the extent necessary (i) to provide the Services to Proginet, and (ii) for
internal use for Beta and not for the benefit of third parties. The
Harbor License shall terminate at the conclusion of the Exit Services, as
defined in Section 10.06 below.
ARTICLE
VII - CONFIDENTIALITY
Section
7.01. Confidential
Information. During the course of Beta Systems performing the
Services for Proginet, each Party may be given access to information (in
hardcopy or electronic form) that relates to the other’s past, present or future
research, development, strategy, business activities, customers, products,
services or technical knowledge, pricing, or pricing discounts, which is
identified by the discloser as confidential (the “Confidential
Information”). Without limiting the foregoing, Confidential
Information shall include all information disclosed by one Party to the other in
connection with Services that is (i) identified by the disclosing Party as
confidential, or (ii) would be understood to be confidential by a reasonable
person. In connection with Confidential Information, the following provisions
will apply:
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(a)
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The
Confidential Information of the discloser may be used by the receiver only
in connection with the Services and may be copied or reproduced only to
the extent reasonably necessary for the receiver to perform its
obligations.
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(b)
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Each
Party agrees to protect the confidentiality of the Confidential
Information of the other in the same manner that it protects the
confidentiality of its own proprietary and confidential information of
like kind, but in no event will either Party exercise less than reasonable
care in protecting such Confidential Information. Access to the
Confidential Information will be restricted to Beta Systems and Proginet
personnel (including such personnel employed by affiliated entities)
engaged in a use permitted hereby.
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(c)
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All
Confidential Information made available by either Party, including copies
of the Confidential Information, shall be returned or destroyed upon the
first to occur of (i) completion of the Services or (ii) request
by the discloser, unless the receiver is otherwise allowed to retain such
Confidential Information; provided, however, that
if any Confidential Information of the receiver becomes inextricably
commingled with Confidential Information of the discloser, then such
commingled Confidential Information will be destroyed rather than returned
to the discloser.
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(d)
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If
either Party receives a subpoena or other validly issued administrative or
judicial process demanding Confidential Information of the other Party, it
will promptly notify the other Party of such receipt and tender it to the
defense of such demand. After providing such notification, the
Party receiving the subpoena will be entitled to comply with such subpoena
or other process to the extent permitted by law; provided the Party
receiving the subpoena shall disclose only such information as, in the
opinion of its counsel, is necessary to comply with the subpoena and
provided further, such Party shall use reasonable efforts to ensure that
such information is given confidential treatment. The Services do not
include Beta Systems acting as an expert witness or otherwise providing
litigation support services.
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(e)
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For
the avoidance of doubt, the terms and conditions of this Agreement,
including without limitation the provisions herein with respect to Service
Fees, will be deemed to be Confidential
Information. Notwithstanding anything to the contrary in this
Section, Confidential Information will not include specific information
that was: (i) available to the public at the time of disclosure
to such Party through no fault of such Party; (ii) published or otherwise
made a part of the public domain through no fault of such Party; (iii)
already in the possession of such Party, without such Party being under
any obligation of confidentiality with respect thereto, at the time of
disclosure by the other Party; (iv) received or obtained by such Party,
without such Party assuming any obligations of confidentiality with
respect thereto, from a third party which had a lawful right to disclose
such Confidential Information to such Party; (v) independently developed
by such Party without reference to any Confidential Information of the
other Party and not in connection with the performance or receipt of the
Services; or (vi) required to be disclosed or made publicly available by
applicable Law or Order.
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Section
7.02. Notification. A
Party who receives Confidential Information of the other Party will promptly
notify the disclosing Party in the event of any disclosure or loss of
Confidential Information other than as permitted by this Services
Agreement.
Section
7.03. Injunctive
Relief. The Parties acknowledge that any breach of any
provision of this Article by a Party may cause immediate and irreparable injury
to the other Party that cannot be adequately compensated for by
damages. Consequently, in the event of any such breach and in
addition to all other remedies available at law or in equity, the injured Party
will be entitled to seek injunctive relief from any court of competent
jurisdiction, without bond or other security.
Section
7.04. Use of Data Received from Proginet
and Proginet Customers.
Beta
Systems may use data received from Proginet and Proginet Customers solely to the
extent necessary or reasonably related to providing the Services to Proginet and
in accordance with any additional reasonable limitations provided to Beta
Systems in writing sufficiently in advance of the applicability of such
limitations. All such data shall be deemed to be Confidential Information of
Proginet.
ARTICLE
VIII - LIABILITY AND DAMAGES
Section
8.01. Disclaimer of
Warranties. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
SERVICES AGREEMENT, THE PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS
OR IMPLIED, REGARDING ANY MATTER, INCLUDING WARRANTIES OR CONDITIONS OF FITNESS
FOR A PARTICULAR PURPOSE, MERCHANTABILITY, INFORMATIONAL CONTENT, SYSTEMS,
INTEGRATION, NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT, OR RESULTS TO BE
DERIVED FROM THE USE OF ANY SERVICE, SOFTWARE, HARDWARE, DELIVERABLES, WORK
PRODUCT OR OTHER MATERIALS PROVIDED UNDER THIS SERVICES
AGREEMENT. BETA SYSTEMS DOES NOT REPRESENT OR WARRANT THAT THE
OPERATION OF ANY SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
Section
8.02. Limitation on
Damages.
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(a)
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SUBJECT
TO THE EXCLUSIONS SET FORTH IN SECTION 8.02(b) BELOW AND EXCEPT IN THE
CASE OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IF EITHER PARTY
SHALL BE LIABLE TO THE OTHER FOR ANY MATTER RELATING TO OR ARISING FROM
THIS SERVICES AGREEMENT, WHETHER BASED UPON AN ACTION OR A CLAIM IN
CONTRACT, WARRANTY, EQUITY, TORT, NEGLIGENCE, INTENDED CONDUCT OR
OTHERWISE (INCLUDING ANY ACTION OR CLAIM ARISING FROM THE ACTS OR
OMISSIONS, NEGLIGENT OR OTHERWISE, OF THE LIABLE PARTY), THE AGGREGATE
AMOUNT OF DAMAGES RECOVERABLE AGAINST THE LIABLE PARTY WITH RESPECT TO ANY
AND ALL BREACHES, PERFORMANCE, NONPERFORMANCE, ACTS OR OMISSIONS HEREUNDER
WILL NOT EXCEED AN AMOUNT EQUAL TO THE SERVICE FEES PAID TO BETA SYSTEMS
UNDER THIS SERVICES AGREEMENT DURING THE THREE-MONTH PERIOD IMMEDIATELY
PRECEDING THE MOST RECENT
EVENT.
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(b)
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The
liability limitations in Section 8.02(a) or 8.03 below will not apply to
any Losses arising from (i) a breach of Article VII, (ii) Beta System’s
obligations under Section 9.01(c), or (iii) Proginet’s non-performance of
its payment obligations for Services
provided.
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Section
8.03. Limitation on Category of
Liability. EXCEPT IN THE CASE OF A PARTY’S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT, IN NO EVENT WILL THE MEASURE OF DAMAGES PAYABLE BY EITHER
PARTY INCLUDE, NOR WILL EITHER PARTY BE LIABLE FOR, ANY CONSEQUENTIAL, INDIRECT,
INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING DAMAGES DUE TO
BUSINESS INTERRUPTION OR LOST PROFITS, SAVINGS, COMPETITIVE ADVANTAGE OR
GOODWILL) ARISING FROM OR RELATED TO THIS SERVICES AGREEMENT, REGARDLESS OF THE
TYPE OF CLAIM, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER
LEGAL OR EQUITABLE THEORY, WHETHER OR NOT FORESEEABLE, AND REGARDLESS OF THE
CAUSE OF SUCH DAMAGES EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES IN ADVANCE.
ARTICLE
IX - INDEMNIFICATION
Section
9.01. Beta Systems’ Indemnity
Obligations. Beta Systems will indemnify, defend and hold
harmless Proginet and its Affiliates and their directors, officers, employees
and agents (the “Proginet Indemnified
Parties”) from and against any and all Losses arising from claims by
third parties, whether based in whole or in part in contract, tort, negligence,
statute or otherwise, arising from:
(a) the
death of or bodily injury to any employee or subcontractor of Proginet or its
Affiliates or damage to real property or tangible personal property of Proginet
or any of its Affiliates or their respective employees or subcontractors, in
each case to the extent that such death, injury or damage was directly caused by
the negligence or willful misconduct of Beta Systems or any of its directors,
officers, employees or agents,
(b) the
breach by Proginet of any Proginet Contract where such breach was proximately
caused by Beta Systems, or
(c) any
claim that the Services or any materials provided by Beta Systems infringe upon
the proprietary or other rights of any third party.
Beta
Systems’ obligations under this Section 9.01 shall survive such expiration or
termination of this Services Agreement.
Section
9.02. Proginet’s Indemnity
Obligations. Subject to Section 9.01, Proginet will indemnify,
defend and hold harmless Beta Systems and its Affiliates and their directors,
officers, employees and agents (the “Beta Systems Indemnified
Parties”) from and against any and all Losses arising from claims by
third parties, whether based in whole or in part in contract, tort, negligence,
statute or otherwise, arising from the death of or bodily injury to any employee
or subcontractor of Beta Systems or its Affiliates or damage to real property or
tangible personal property of Beta Systems or any of its Affiliates or their
respective employees or subcontractors, in each case to the extent that such
death, injury or damage was directly caused by the negligence or willful
misconduct of Proginet or any of its directors, officers, employees or
agents. Proginet’s
obligations under this Section 9.02 shall survive such expiration or termination
of this Services Agreement.
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Section
9.03. Third Party Claim
Procedures. A Beta Systems Indemnified Party or Proginet
Indemnified Party (in either case, an “Indemnified Party”)
seeking indemnification from Beta Systems or Proginet (in either case, an “Indemnifying Party”)
with respect to a third party claim will give the Indemnifying Party prompt
written notice of such third party claim. Failure to give such notice
will not reduce the obligations of the Indemnifying Party under this Article,
except to the extent that the Indemnifying Party is prejudiced
thereby. After such notice, if the Indemnifying Party acknowledges in
writing to such Indemnified Party that the right of indemnification under this
Services Agreement applies with respect to such third party claim, then the
Indemnifying Party may, if it elects, in a written notice delivered to the
Indemnified Party no later than 14 calendar days prior to the date on which a
response to such third party claim is due or 14 calendar days after receipt of
the written notice (whichever is sooner), take control of the defense of such
third party claim. In such case, the Indemnifying Party will select
and engage attorneys at the expense of the Indemnifying Party. The
Indemnified Party will reasonably cooperate with the Indemnifying Party and its
attorneys in the investigation, trial and defense of such third party claim and
any appeal arising therefrom and the Indemnified Party may, at its own expense,
participate, through its attorneys or otherwise, in such investigation, trial
and defense of such third party claim and any appeal arising
therefrom. The Indemnifying Party will not enter into any settlement
that involves any action, admission, or liability of the Indemnified Party
without the prior written consent of the Indemnified Party, which consent will
not be unreasonably withheld or delayed. After notice by the
Indemnifying Party of its election to take control of the defense of any such
third party claim, the Indemnifying Party will not be liable to the Indemnified
Party for any legal expenses incurred thereafter by such Indemnified Party in
connection with such defense. If the Indemnifying Party does not take
control of the defense of such third party claim, the Indemnifying Party may
participate in such defense, at its expense, and the Indemnified Party may
reasonably defend and settle such third party claim in its discretion, at the
expense of the Indemnifying Party.
Section
9.04. Subrogation. In
the event that an Indemnifying Party will be obligated to indemnify an
Indemnified Party with respect to a third party claim, the Indemnifying Party
will, upon fulfillment of its obligations with respect to indemnification
hereunder, including payment in full of all amounts due pursuant to its
indemnification obligations, be subrogated to the rights of the Indemnified
Party with respect to the third party claim to which such indemnification
relates.
ARTICLE
X - TERM AND TERMINATION
Section
10.01. Term. This
Services Agreement will commence on the Effective Date and continue until the
second anniversary of the Effective Date (the “Initial Term”). This
Services Agreement will automatically renew for additional 12 month periods
(each, a “Renewal
Term”) unless either Party gives the other written notice of non-renewal
at least 180 days prior to the expiration of the then-current
term. The Initial Term and any Renewal Terms are collectively
referred to herein as the “Term.”
Section
10.02. Termination by Beta
Systems. Beta Systems may terminate this Services Agreement on 180 days’
prior written notice to Proginet if Proginet fails to pay when due any Service
Fee or other undisputed amount payable to Beta Systems, and any such default is
not cured by Proginet within 60 days after receiving written notice of such
default from Beta Systems.
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Section
10.03. Termination by Proginet. Proginet
may terminate this Services Agreement on 180 days’ prior written notice to Beta
Systems if Beta Systems fails to perform in any material respect any obligation
to Proginet, and any such default is not cured by Beta Systems within 60 days
after receiving written notice of such default from Proginet.
Section
10.04. Additional Termination
Rights.
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(a)
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This
Services Agreement may be terminated at any time by mutual written
agreement signed by authorized representatives of both
Parties.
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(b)
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Without
prejudice to any right or remedy either Party may have against the other
for breach or non-performance of this Services Agreement, either Party
will have the right by notice in writing to the other Party to terminate
this Services Agreement on the happening of any of the following events:
(a) if the other Party passes a resolution for its winding-up (except in
connection with a bona fide business reorganization), or a court of
competent jurisdiction makes an order for the winding-up of the other
Party, or the dissolution of the other Party; (b) if the other Party
becomes insolvent, files or has filed against it a petition under
bankruptcy law or other Law relating to insolvency, or makes an assignment
or other arrangement for the benefit of its creditors; (c) if the other
Party fails to make any payment in respect of any material indebtedness
when due or within any applicable grace period; or (d) if the other Party
ceases, or threatens to cease, to carry on
business.
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Section
10.05. Force Majeure. As
used herein, “Force
Majeure Event” means any event that is outside the reasonable control of
the affected Party, its subcontractors and suppliers and includes acts of God,
wars, blockades, embargoes, riots, civil disturbances, acts of terrorism or
government in response thereto, malicious damage, accidents, fires, floods,
storms, explosions, earthquakes and other natural disasters, epidemics,
industry-wide shortages of labor or materials, power or telecommunications
failures or outages, labor disputes and prohibitions or restrictions or changes
in applicable Law, or any other event that is outside the reasonable control of
a Party whether or not such event is similar to the
foregoing. Neither Party will be liable for any breach of its
obligations under this Services Agreement resulting from the occurrence of a
Force Majeure Event. Each Party will give written notice as soon as is
reasonably possible to the other Party upon such Party becoming aware of a Force
Majeure Event that prevents such Party from performing its obligations under
this Services Agreement. Such notice will detail the circumstances
giving rise to the Force Majeure Event. If a Force Majeure Event
causes Beta Systems to allocate limited resources among its customers, Proginet
will receive no less priority in respect of such allocation than any of the
other customers. Each Party will use commercially reasonable efforts
to mitigate the effects of any Force Majeure Event. If Beta Systems
is prevented from performing the Services, or any material portion thereof, for
a period of more than 15 days due to a Force Majeure Event, Proginet may
terminate this Services Agreement upon 30 days’ prior written notice to the
other Party.
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Section
10.06. Exit
Services. In connection with any termination of this Services
Agreement pursuant to Sections 10.02 through 10.05, at Proginet’s request, Beta
Systems and Proginet will discuss in good faith, formulate and implement a
detailed plan, including the amount of the fees for such services, for the
orderly transition of the Services from Beta Systems to Proginet or a third
party (the “Exit
Services”). During the Exit Services, the Parties will
cooperate to facilitate a smooth transition of the Services and Beta Systems
will provide information to enable Proginet and Proginet’s designee to continue
to perform the Services. As part of such information, Beta Systems
will provide to Proginet detailed, written descriptions of all processes and
procedures used by Beta Systems to perform the Services, as well as all
technical materials, documentation, knowledge bases, call scripts, and both
current and archived problem records.
Section
10.07. Claim
Assertion. Neither Party may assert against the other Party
any claim through mediation, arbitration or litigation for breach or
non-performance in connection with this Services Agreement unless the asserting
Party has given the other Party written notice of the claim within two years
after the asserting Party first knew or reasonably should have known of the
underlying facts giving rise to such claim.
Section
10.08. Survival. The
provisions of Articles III, VI, VII, VIII, IX, XI and this Section will survive
any termination of this Services Agreement.
ARTICLE
XI - MISCELLANEOUS
Section
11.01. Notice. All
notices and other communications hereunder will be in writing and will be deemed
to have been duly given only if delivered personally, by nationally recognized
overnight courier service or mailed by registered or certified mail, postage
prepaid, return receipt requested, or by telecopy to the Parties at the
addresses or fax numbers set forth below the names of the Parties on the
signature page of this Services Agreement. All such notices, requests
and other communications will be deemed given upon receipt and shall be deemed
received upon delivery. Either Party may from time to time change its
address or other information for notices to that Party by giving notice
specifying such change to the other Party.
Section
11.02. Entire Agreement;
Amendment. This Services Agreement constitutes the entire
agreement between the Parties with respect to the subject matter contained
herein, and supersedes any prior understandings and agreements between them
respecting such subject matter. This Services Agreement may be
amended, modified or supplemented only by a writing executed and delivered by or
on behalf of each Party. Any term or condition of this Services
Agreement may be waived at any time by the Party that is entitled to the benefit
thereof, but no such waiver will be effective unless set forth in a written
instrument duly executed by or on behalf of the Party waiving such term or
condition. No waiver by either Party of any term or condition of this
Services Agreement, in one or more instances, will constitute a waiver of the
same or any other term or condition of this Services Agreement on any future
occasion. No delay or omission by a Party to exercise any right under
this Services Agreement will impair or be construed as a waiver of such
right.
Section
11.03. No
Assignment; Binding Effect. Except as provided in the
following sentence, no Party may assign this Services Agreement or any part
hereof or any benefit or interest herein without the prior written consent of
each other Party. Upon 10 business days’ notice to the other Parties
(or, such shorter period as may be practicable if confidentiality or other
concerns prevent the giving of such advance notice), a Party may assign this
Services Agreement (and the rights and obligations hereunder) to (i) any
Affiliate of such Party that expressly assumes the assigning Party’s obligations
and responsibilities under this Services Agreement (provided that the assigning
Party shall remain fully liable for, and not be relieved from, the full
performance of all obligations under this Services Agreement), (ii) any third
party that acquires all or substantially all of the assigning Party’s assets, or
(iii) or the assigning Party’s successor by way of merger or
acquisition. Any attempted assignment that does not comply with the
terms of this Section 11.03 shall be null and void. A transaction
that does not cause this Services Agreement, or its rights or obligations, to be
transferred to a different entity shall not be deemed an
assignment.
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Section
11.04. Relationship of the Parties;
No Third Party Beneficiary. The Parties intend to create an
independent contractor relationship and nothing contained in this Services
Agreement will be construed to make either Party a partner, joint venturer,
principal, agent, fiduciary or employee of the other Party. No
director, officer or employee of Beta Systems will, by virtue of this Services
Agreement or the transactions contemplated hereby, be deemed to be an employee
or agent of Proginet. Neither Party will have any right, power or
authority, express or implied, to bind the other Party.
Section
11.05. Dispute
Resolution.
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(a)
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The
Parties will make good faith efforts to first resolve internally any
dispute subject to Section 11.05(b) by escalating it to higher levels of
management. A request for arbitration under Section 11.05(b)
may not be filed until 30 days have elapsed from the initiation of such
good faith efforts.
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(b)
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Any
dispute, controversy, or claim arising out of, relating to, involving, or
having any connection with this Services Agreement or otherwise related to
the Services, including any question regarding the validity,
interpretation, scope, performance, or enforceability of this dispute
resolution provision, shall be exclusively and finally settled by binding
arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association (the “AAA”) and the
AAA Optional Procedures for Large, Complex Commercial
Disputes. Any arbitration will be conducted on an individual,
rather than a class-wide, basis.
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(c)
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The
arbitration will be conducted in Nassau County, New York unless the
Parties agree on another location.
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(d)
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The
arbitration will be conducted by three arbitrators. Each Party
will appoint an arbitrator, obtain its appointee’s acceptance of such
appointment, and deliver written notification of such appointment and
acceptance to the other Party within 15 days after the due date of the
respondent’s answering statement. The two Party-appointed
arbitrators will jointly agree upon and appoint a third arbitrator who
will serve as the chairperson of the arbitral panel. The
Party-appointed arbitrators will obtain the chairperson’s acceptance of
such appointment and notify the Parties in writing of said appointment and
acceptance within 30 days after their appointment and acceptance as
Party-appointed arbitrators. If the two Party-appointed
arbitrators are unable to agree upon the selection and appointment of the
chairperson within that time frame, they will so notify the Parties in
writing. Upon such notice, one or both of the Parties may
request in writing that the chairperson be appointed by the AAA in
accordance with the AAA rules. The AAA will notify the Parties
in writing of the appointment and acceptance of the chairperson within 21
days after receiving such request.
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The
Parties will be entitled to engage in reasonable discovery, including
requests for production of relevant non-privileged
documents. Depositions and interrogatories may be ordered by
the arbitral panel upon a showing of need. It is the Parties’
intent that the discovery proceedings be conducted in a cost-effective
manner.
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(f)
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All
decisions, rulings, and awards of the arbitral panel will be made pursuant
to majority vote of the three arbitrators. The award will be in
accordance with the applicable Law, will be in writing, and will state the
reasons upon which it is based. The arbitrators will have no
power to modify or abridge the terms of this Services Agreement,
including, but not limited to, Article VIII. The award of the
arbitrators will be final, and judgment on the award may be entered by any
court having jurisdiction to do so.
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(g)
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Costs
incurred in the arbitration proceeding, including attorneys’ fees and
expenses, will be borne in the manner determined by the arbitral
panel.
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(h)
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Nothing
in this Services Agreement will prevent the Parties, prior to the
formation of the arbitral panel, from applying to a court of competent
jurisdiction for provisional or interim measures or injunctive relief as
may be necessary to safeguard the property or rights that are the subject
matter of the arbitration. Once the arbitral panel is in place,
it will have exclusive jurisdiction to hear applications for such relief,
except that any interim measures or injunctive relief ordered by the
arbitral panel may be immediately and specifically enforced by a court of
competent jurisdiction.
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(i)
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This
Section 11.05 will not apply to any claim arising from any patent or
registered trademark. Such claims will not be subject to
arbitration and instead will be subject to judicial
resolution. In addition, any issue regarding the enforceability
of the prohibition against class-wide arbitration will be decided by a
court of competent jurisdiction and not by an
arbitrator.
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(j)
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Unless
otherwise agreed by the Parties or required by Law, the Parties, the
arbitrators, and the AAA will maintain the confidentiality of all
documents, communications, proceedings, and awards provided, produced or
exchanged pursuant to an arbitration conducted under this Section
11.05.
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Section
11.06. Consent to Jurisdiction;
Waiver of Jury Trial. Subject to Section 11.05, each Party
irrevocably submits to the exclusive jurisdiction of the United States District
Court for Nassau County, New York, or any court of the State of New
York located in Nassau county in any Action or Proceeding
arising out of or relating to this Services Agreement or any of the transactions
contemplated hereby, and agrees that any such Action or Proceeding will be
brought only in such courts; provided, however, that such
consent to jurisdiction is solely for the purpose referred to in this Section
and will not be deemed to be a general submission to the jurisdiction of such
courts other than for such purpose. Subject to Section 11.05, each
Party irrevocably waives, to the fullest extent permitted by Law, any objection
that it may now or hereafter have to the laying of the venue of any such Action
or Proceeding brought in such courts and any claim that any such Action or
Proceeding brought in such courts has been brought in an inconvenient
forum. Subject to Section 11.05, nothing contained herein will
preclude a Party against which an Action or Proceeding is brought as aforesaid
in any court of the State of New York from seeking to remove such
Action or Proceeding, pursuant to applicable federal Law, to the United States
District Court in Nassau County, New York. Subject to Section 11.05,
nothing contained herein will preclude a Party from enforcing an Order in the
courts of another jurisdiction. Each Party waives any right to a jury
trial in any Action or Proceeding arising out of or related to this Services
Agreement.
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Section
11.07. Remedies Cumulative; Invalid
Provisions. Except as otherwise provided herein, no right or
remedy herein conferred on or reserved to either Party is intended to be
exclusive of any other right or remedy, and each and every right and remedy will
be cumulative and in addition to any other right or remedy under this Services
Agreement or under applicable Law, whether now or hereafter existing, if
appropriate. If any provision of this Services Agreement is held to
be illegal, invalid or unenforceable under any present or future Law or Permit,
and if the rights and obligations of neither Party under this Services Agreement
will be materially and adversely affected thereby, then (i) the remainder of
this Services Agreement will not be affected and will be valid and enforceable
to the fullest extent provided by Law and (ii) the illegal, invalid or
unenforceable provision will be reformed to the minimum extent necessary to
correct any invalidity while preserving to the maximum extent the rights and
commercial expectations of the Parties.
Section
11.08. Governing
Law. This Services Agreement will be governed by the Laws of
the State of New York, without giving effect to principles of conflicts of
law.
Section
11.09. Public Securities
Filings. The Parties acknowledge that this Agreement, or
portions thereof, and schedules thereto, and descriptions of any of the
foregoing, may be required under applicable law to be disclosed in required
public disclosure documents, or exhibits thereto, of Proginet filed with the
United States Securities and Exchange Commission (the “SEC”) or any
securities exchange on which its securities are listed for
trading. Prior to such disclosure, and subject to the next sentence,
Proginet will inform Beta and will use commercially reasonable efforts to seek
approval from the SEC or other applicable regulatory authority for the
confidential treatment of certain confidential information identified by the
Parties. Prior to such disclosure, Proginet shall request redaction
of such portions of the Agreement or disclosure that Beta reasonably requests to
be redacted, unless, in Proginet’s judgment based on the advice of counsel,
Proginet concludes that such redaction request is inconsistent with Proginet’s
obligations under applicable law.
Section
11.10. Headings;
Counterparts. Headings in this Services Agreement are for
convenience of reference only and will not affect its
interpretation. This Services Agreement may be signed in
counterparts, each of which will be deemed an original.
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IN
WITNESS WHEREOF, Beta Systems and Proginet have executed and delivered this
Services Agreement as of the date set forth upon each signature block
below.
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PROGINET
CORPORATION
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BETA
SYSTEMS SOFTWARE OF CANADA, LTD.
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By:
__________________________________
Name: ▇▇▇▇▇
▇▇▇▇
Title: President
& CEO
Date: October
31, 2008
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By:
__________________________________
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Member
of Board of Directors
Date: October
31, 2008
By:
__________________________________
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Title: Member
of Board of Directors
Date: October
31, 2008
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Address for
Notices:
Proginet
Corporation
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇, CFO
Fax
#: ▇▇▇-▇▇▇-▇▇▇▇
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Address for
Notices:
Beta
Systems Software of Canada Inc.
▇▇▇
▇▇▇▇▇ ▇▇▇. ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
▇▇▇
▇▇▇
▇▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇, Director
Fax
# (▇▇▇) ▇▇▇-▇▇▇▇
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Copy
to:
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Copy
to:
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Beta
Systems Software AG
General
Counsel
Senior
Manager Legal Affairs
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇
Fax
#: ▇▇▇ (▇)▇▇ ▇▇▇ ▇▇▇ ▇▇▇
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SCHEDULE
1.01
DEFINITIONS
“AAA” has the meaning
set forth in Section 11.05(b).
“Action or Proceeding”
means any action, claim, suit, proceeding, arbitration, or audit, whether civil,
criminal, or administrative, by or before any Governmental or Regulatory
Authority.
“Affiliate” means any
Person that directly or indirectly Controls, is Controlled by, or is under
common Control with, the Person specified.
“Beta Call Tracking
System” means the technology solution and associated processes used by
Beta Systems to log, manage, and track Proginet Customer problem
records.
“Beta Systems” has the
meaning set forth in the Preamble.
“Beta Systems Indemnified
Parties” has the meaning set forth in Section 9.02.
“Bug Fix” means a
change Proginet or a Proginet Customer submitted to Beta Systems that requires
consideration for resolution such that Beta Systems generates a scheduled
software release.
“Change Control
Process” means the process set forth in the Change Control Schedule by
which the Parties may agree to Service Changes (as defined in such
Schedule).
“Change Control
Schedule” means Schedule
5.02.
“Confidential
Information” has the meaning set forth in Section 7.01.
“Contract” means any
written contract or agreement, lease, approval, Permit, evidence of
indebtedness, mortgage, indenture, security agreement, or other contract or
agreement.
“Control” means, with
respect to any Person, the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or other ownership interests
or by Contract or otherwise.
“Customer Contracts”
means the Proginet Contracts and those license and maintenance agreements
between Beta Systems or one of its Affiliates and European Customers entered
into pursuant to the Master Distributor Agreement.
“Customer” means a
licensee of the Transferred Products that is eligible to receive support
services in respect of such license.
“Effective Date” has
the meaning set forth in the Preamble.
“Enhancement” means a
request to adjust the code base outside of the current
scope. Requests will follow the release process and Beta Systems will
obtain approval from Proginet prior to implementation.
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“Exit Services” has
the meaning set forth in Section 10.06.
“Europe” means Europe
and some neighboring areas agreed to by Beta Systems and Proginet as a method to
determine who provides support for these customers.
“Force Majeure Event”
has the meaning set forth in Section 10.05.
“Governmental or Regulatory
Authority” means any court, tribunal, arbitrator, authority, agency,
commission, official, or other instrumentality of competent authority of any
government.
“Harbor License” has
the meaning set forth in Section 6.03.
“Indemnified Party”
has the meaning set forth in Section 9.03.
“Indemnifying Party”
has the meaning set forth in Section 9.03.
“Initial Term” has the meaning
set forth in Section 10.01.
“Intellectual
Property” means any software, documentation, patent, trademark, trade
name, service ▇▇▇▇, service name, copyright (including rights in computer
software), database right, invention, trade secret, design right,
market-specific processing know-how, or brand name and other intellectual
property rights, whether now existing or hereafter developed and whether capable
of registration or not, and including all applications and rights to apply for
the foregoing rights.
“Knowledge Base” means
any system, internal or external, used by Beta Systems to record solutions to
past problems relating in any way to the Transferred Products, and to record
best-practices for responding to such problems.
“Law” means any law,
statute, rule, regulation, ordinance, or other pronouncement having the effect
of law of any government, or any federal, state, county, city, or other
political subdivision, or any Governmental or Regulatory Authority.
“Losses” means losses,
liabilities, damages, actions, claims, costs and expenses (including reasonable
attorneys’ fees and disbursements).
“Non-European
Locations” means those customers from everywhere in the world with the
exception of continental Europe and the United Kingdom.
“Operational
Procedures” means the collection of detailed processes and workflows that
the Beta Systems service center staff will follow in delivering the
Services.
“Order” means any
writ, judgment, decree, injunction, or similar order of any Governmental or
Regulatory Authority (whether preliminary or final).
“Party” means Beta
Systems or Proginet.
“Permit” means any
permit, license, certificate of authority, authorization, approval,
registration, franchise or consent granted or issued by any Governmental or
Regulatory Authority.
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“Person” means any
individual, firm, partnership, limited liability partnership, corporation,
limited liability company, association, joint venture, trust, or other entity,
or any Governmental or Regulatory Authority.
“Proginet” has the
meaning set forth in the Preamble and includes any Affiliate of Proginet who
receives any Services under this Services Agreement.
“Proginet Contracts”
means license or maintenance services agreements between Proginet and licensees
of the Transferred Products.
“Proginet Customers”
means customers of Proginet that are licensees of the Transferred Products
pursuant to Proginet Contracts.
“Proginet Indemnified
Parties” has the meaning set forth in Section 9.01.
“Proginet’s Business”
has the meaning set forth in Section 5.02(a).
“Renewal Term” has the
meaning set forth in Section 10.01.
“Service Fee” means
any fee or other amount charged by Beta Systems to Proginet in connection with
providing the Services to Proginet, the initial list of which is set forth in
Schedule
3.01.
“Services” has the
meaning set forth in Section 2.01.
“Services Agreement”
has the meaning set forth in the preamble and, unless the context otherwise
requires, includes all Schedules to this Services Agreement.
“Severity Level” means
categories of help desk priority codes describing the degree of importance and
priority level of a problem.
“Statement of Work”
means a mutually agreed upon order for certain additional development services
which outlines the services to be provided and the fees to be paid by Proginet
for such services.
“Technical Support”
means answering Proginet’s and Proginet’s Customers’ questions about technical
problems encountered during delivery of the Services.
“Transferred Products”
means the full product sets of Harbor NSM and Harbor HFT, otherwise known as
Beta 50, 52, 53, 56, and 57
“Level 1” means
individuals who are responsible for Technical Support. Questions may
be submitted by telephone, email or other supported
channels. Technical problems include system errors, user management
and system availability issues. If necessary, Level 1 will escalate
the issue to Level 2.
“Level 2” means
individuals who are responsible for Technical Support that cannot be resolved by
Level 1. If necessary, Level 2 will escalate the problem to Level
3.
“Level 3” means
individuals who are responsible for Technical Support that cannot be resolved by
Level 1 or Level 2. Level 3 personnel are developers who can make changes to the
source code of the products being supported.
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“Term” has the meaning
set forth in Section 10.01.
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SCHEDULE
2.01
SCOPE OF
SERVICES
At the
Effective Date of this agreement, Harbor Customers will be instructed to
continue to seek support from Beta Systems in the same manner and with the same
Calgary staff they communicated with prior to the Asset Exchange
Agreement.
Weekly
status meetings will be held between Beta Systems in Calgary and Proginet in New
York to keep track of support activities and resolve any issues.
Beta
Systems will begin the process of training Proginet technical support personnel
for Level 1 support within four weeks of the Effective Date up to a maximum of
ten days. In addition, Beta shall provide additional training
reasonably requested by Proginet at a rate of $ [***] per day.
Proginet
will assume the responsibility for ▇▇▇▇▇ ▇ support for Non-European Location
Customers by January 15, 2009.
Beta
Systems will continue to provide ▇▇▇▇▇ ▇ support for Europe
Customers.
Beta
Systems will continue to provide ▇▇▇▇▇ ▇ and Level 3 support for all Harbor NSM
and HFT Customers.
Beta
Systems in Calgary will be responsible for providing ▇▇▇▇▇ ▇, 2 & 3 support
for Customers in Europe and Level 2 & 3 support for Customers in
Non-European Locations.
The
Services will include the receipt and handling for all technical support calls
from Customers. These calls may result in many different kinds of
support, ranging from answering questions to fixing bugs to implementing
mandatory maintenance changes and enhancements.
As part
of the Services and beginning on the first anniversary of the Effective Date and
on each 12-month anniversary thereafter, Beta Systems shall consolidate those
prior patches and maintenance releases issued since the last consolidated
release into a new version of the Transferred Products and distribute such
consolidated version to Proginet.
The above
levels of support and types of services are more thoroughly defined in Schedule 2.01-A,
Support Level Requirements.
Program Management:
Beta Systems will dedicate a program manager to coordinate operational support
for the Services. In addition, Proginet will similarly dedicate a
representative to coordinate with Beta Systems’ program manager.
Reporting:
Beta
shall provide a monthly management summary report showing issues, responses,
resolutions, response times, and outstanding calls, in a mutually agreed to
format.
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Proginet
shall have full online access of the Beta Systems CRM system being used to track
support calls; provided, however, until such online access is available, Beta
shall provide Proginet with weekly written status reports.
Support Call Handling
Process
Support
is a structured process designed to efficiently and effectively deal with a call
that will originate through a telephone, email, etc. and to resolve the issue
raised in this call in the fastest amount of time.
The call
handling process is as follows: [***- Omitted 4 pages]
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SCHEDULE 2.01 -
A
SUPPORT LEVEL
REQUIREMENTS
In this
Schedule the priorities given to a support issue, the expected response times
for each Severity, and the levels of support and the escalation process are
detailed.
Service
Level / Response Standards [***- omitted 3 pages]
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SCHEDULE
2.02
CURRENT
CUSTOMERS
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SCHEDULE
3.01
SERVICE FEES [***]
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SCHEDULE
5.02
CHANGE CONTROL
PROCESS
A. Change
Control Procedure.
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(a)
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Either
Party may request in writing that Beta Systems make changes, modifications
or enhancements (each a “Service
Change”) to the Services or to this Services Agreement (including
corresponding changes to the Scope of Services, Service Fees and Service
Levels), provided that such Service Change is within the scope of the
Services. For example, the Parties intend that the Scope of
Services change over time as the Service evolve, including changes
required by asset class additions, changes to definitions of Quality
Levels, research method changes, vendor feed changes, and service
operational changes. Service Changes shall be requested by
written notice delivered to the designated Beta Systems or Proginet
representative, as applicable, in any case specifying in detail the
proposed Service Change (a “Change Control
Request”).
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(b)
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Proginet
and Beta Systems shall cooperate with each other in good faith in
discussing the scope and nature of each Change Control Request, the
availability of Beta Systems personnel and resources to accommodate such
Service Change and the timetable for implementation of such Service
Change. In addition, Proginet and Beta Systems will
cooperate to manage the volume of Change Control Requests and the level of
effort required to perform Change
Analyses.
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(c)
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As
soon as reasonably practicable following receipt of a Change Control
Request from Proginet or simultaneously with Beta Systems’ delivery of a
Change Control Request, Beta Systems will prepare and deliver to the
Proginet a written analysis (a “Change
Analysis”) describing any changes in products, Services, assignment
of personnel and other resources that Beta Systems believes would be
required, including an estimate of the change in Service Fees, Service
Levels and termination fees.
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(d)
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The
designated Beta Systems and Proginet representatives will meet to
determine whether they desire for Beta Systems to proceed with the
implementation of the proposed Service Change in accordance with the
applicable Change Analysis, and if the representatives desire to proceed
with the implementation of the proposed Service Changes, they shall
evidence such agreement in writing (a “Change
Order”). Any disputes with respect to Change Control
Requests, Change Analyses or written agreements to proceed with
implementation of proposed Service Changes shall be handled in accordance
with Section 11.05.
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(e)
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Following
implementation of any Service Change, all affected Schedules to this
Services Agreement shall be updated in accordance with the applicable
Change Analysis.
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5.02-2
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