EXHIBIT 10.59
This Maintenance Agreement is made this 7th day of September 1998.
BY AND BETWEEN:
1. IBM Ireland Information Services Limited whose registered office is at ▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ("IISL")
AND
2. Seer Technologies, Inc. whose principal office is at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ("Seer")
RECITALS:
A. On 6th April 1992 the parties entered into a Master Distribution and
License Agreement ("MDLA"). Article 6.2.3, together with Attachment 5,
thereof describes certain support and maintenance services. These
services were supplied by IISL, on behalf of Seer, to third parties in
EMEA.
B. On 14th February 1997, the parties amended the MDLA ("Amendment"). The
Amendment provided that IISL supply certain support and maintenance
services, on behalf of Seer, to third parties in EMEA, in the period from
1st January 1997 until 31st December 1999. In consideration of the
supply of these services, Seer agreed to pay certain fees as defined in
the Amendment.
C. Each party acknowledges that the MDLA and the Amendment are complex and
out of date.
D. The parties have agreed to terminate the MDLA and the Amendment, and
replace them with this Agreement, which sets out the terms and conditions
under which IISL shall supply Level 2 support and maintenance services,
and Seer, ▇▇▇▇▇ ▇ support and maintenance services, as follows:
TERMS AGREED:
1. Interpretation
References in this Agreement to:
1.1 "Maintenance Period" means the period from 1st October 1998 until 30th
September 1999 inclusive;
1.2 "Services" means, individually and collectively, the support and
maintenance services for HPS Software and Additional Software, as
supplied by IISL, Affiliated IBM Company or Seer to, or for the benefit
of, the Customer, as more particularly described in Clause 3 below;
1.3 "Customer" shall refer to those customers in EMEA where Seer has, at its
sole option, decided that Services shall be supplied by IISL or
Affiliated IBM Company, and to no other customer or third party;
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1.4 "Response Times" means the response times as more particularly described
in the Appendix to this Agreement;
1.5 "HPS Software", "Additional Software", "Seer Related Company" and
"Affiliated IBM Company" shall bear the same meaning as set out in the
MDLA;
1.6 "Software" means, individually or collectively, HPS Software, Additional
Software or any part thereof;
1.7 "MDLA" means the Master Distribution and License Agreement between IISL
and Seer and dated 6th April 1992, together with Attachments 1 - 6
thereto, as modified by the Amendment;
1.8 "Amendment" means the amendment to the Master Distribution and License
Agreement between IISL and Seer and dated 14th February 1997; and
1.9 "Agreement" means these terms and conditions, and the Appendix attached
hereto.
1.10 "Effective Date" means the date on which the Agreement is deemed to be
executed as defined in Clause 4.5 below.
2. Termination of MDLA and Amendment
2.1 Save in respect of those terms and conditions which are intended to
survive termination or expiry without renewal, the MDLA and Amendment
shall terminate upon the Effective Date of this Agreement.
3. Services
3.1 Level 1 support shall be supplied by the relevant Affiliated IBM Company
("Level 1 Provider"), such services being the subject of a separate
agreement(s) between Seer (or a Seer Related Company) and the relevant
Affiliated IBM Company for the Customer.
3.2 Throughout the Maintenance Period, IISL shall, in relation to the
Software, use all reasonable endeavours to meet the Response Times, in
the provision of the following Level 2 support to Customers:
(a) Analyse, and determine the source of, the reported problem, and
including but not limited to verifying that the location of the
reported problem is in the Software or other product;
(b) Verify the error impact on the Customer, and in particular
whether the reported problem is a Severity Level 1 or 2 (as
defined in the Appendix to this Agreement);
(c) Search Seer Incident Tracking System for existing information;
(d) Contact Seer (or Level 3 provider) if assistance is needed from
Seer (or Level 3 provider) to investigate and resolve the
reported problem;
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(e) Ensure effective communication between the Level 1 Provider (as
defined in Clause 3.1 above) and Seer (or Level 3 provider) until
such time as the reported problem is closed by the Customer;
(f) If the reported problem is an error or "bug", develop a
workaround or escalate to Seer if a PTF is required; and
(g) Copy snapshot of Seer Incident Tracking System data periodically.
3.3 Throughout the Maintenance Period, Seer shall, in relation to the
Software, at no extra charge, use all reasonable endeavours to meet the
Response Times in the provision of the following ▇▇▇▇▇ ▇ support to IISL
as follows:
(a) supply support periodically in the form of a PTF or general
maintenance updates;
(b) supply Seer Incident Tracking System data snapshot periodically;
and
(c) Distribute PTF electronically (via Seer FTP site) if necessary,
followed by shipment of tape/diskette in such format as Seer
shall deem appropriate with any associated documentation or
instructions.
3.4 Seer shall not be required to provide any Services in respect of errors
or defects in the Software caused by or arising from:
(a) modifications to the Software made by IISL, Affiliated IBM
Company or the Customer without Seer's prior written approval;
(b) accident, neglect, misuse, or improper programming by IISL,
Affiliated IBM Company or the Customer;
(c) failure or fluctuations in electrical power or hardware
equipment; or
(d) failure by IISL, Affiliated IBM Company or Customer in fulfilling
their obligations to Seer.
4. Charges
4.1 In consideration of the availability and supply of the Services as more
particularly described in Clause 3.2 above, Seer shall pay to IISL the sum
of eight hundred thousand United States Dollars (US$800,000) in four equal
installments in accordance with the following payment schedule
Amount (US$) Invoice Date Payment Date
(See Note)
200,000 15th October 1998 15th November 1998
200,000 15th January 1999 15th February 1999
200,000 15th April 1999 15th May 1999
200,000 15th July 1999 15th August 1999
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Note:
Notwithstanding the use of United States Dollars in the above table, IISL shall
invoice Seer in Irish punts using the exchange rate specified in the Wall Street
Journal on the last working day immediately preceding the relevant invoice date.
In the event that the exchange rate as published in the Wall Street Journal on
the date specified above, deviates by more than 5% from the exchange rate
applying on the Effective Date, either party may, upon written notice to the
other, invoke the Periodic Review procedure specified in Clauses 5.3 - 5.5
below.
4.2 Save as otherwise expressly provided above or as otherwise agreed by the
parties in writing, all payments shall be made within 30 days of receipt
of invoice by wire transfer to the other's designated account.
4.3 All sums specified in this Agreement are exclusive of VAT, which may be
added to any invoice due under this Agreement.
4.4 Seer shall pay to IISL the sum of eight hundred and twenty one thousand,
three hundred and twenty Irish punts (I(Pounds)821,320) in respect of
Services already supplied and where IISL has invoiced Seer prior to the date
of this Agreement. This amount shall be paid in two (2) equal installments
as follows:
Amount (Irish (Pounds)) Payment Date
410,660 15th September 1998
410,660 15th October 1998
4.5 This Agreement will be executed on the date (the "Effective Date") on
which the second instalment, defined in Clause 4.4 above, reaches IISL's
bank account.
5. Additional Services & Changes:
5.1 Any additional services over and above the Services as more particularly
described in Clause 3 above, or any extension of the Services beyond the
Maintenance Period, shall be the subject of a separate agreement, and
charges.
5.2 All changes, modifications or variations to the Services shall be in
writing and signed by the parties. No change to the Services shall be
undertaken in the absence of such written agreement.
Periodic Review:
5.3 Without prejudice to Clauses 5.1 and 5.2 above or any other part of this
Agreement, on or around 31st March 1999, Seer and IISL shall meet to
review generally the maintenance business for the Software in EMEA,
together with the terms, conditions and charges of this Agreement.
5.4 The underlying purpose of such a review is for the parties to consider
whether, in the light of the then prevailing economic circumstances, it
is in the commercial interests of either party to continue with this
Agreement without modification.
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5.5 In the event that one or other of the parties decides that a modification
to the Agreement is required, the parties shall, in good faith, negotiate
an amendment to this Agreement, with a view to ensuring that, at all
times, this Agreement reflects a profit-making business for each party.
During the course of these negotiations, and without prejudice to the
termination provisions set forth in Clause 7 below, the parties shall
continue to provide the Services.
6. Warranty & Limitation of Liability
6.1 IISL and Seer shall exercise all reasonable care and skill in fulfilling
the tasks assigned to them, in accordance with the best practices of the
computing services industry.
6.2 Save as expressly provided above, all Services are supplied "AS IS"
without warranty of any kind.
6.3 Neither party shall be liable to the other for any loss or damage
howsoever arising in contract, tort or otherwise, irrespective of whether
such loss or damage was reasonably foreseeable, and irrespective of
whether such loss or damage is direct, indirect, special, consequential,
incidental or punitive or is a loss of anticipated savings, or goodwill,
or is a loss of contracts, or arises from the delivery (including non-
delivery) of any Services, or arises from any delay.
7. Termination
7.1 This Agreement shall remain in force during the Maintenance Period UNLESS
terminated in accordance with this Clause 7.
7.2 Either party may terminate this Agreement at any time, with or without
cause, upon 90 days prior written notice to the other.
7.3 Either party may terminate this Agreement immediately upon written notice
where the other commits a breach incapable of remedy, or fails to remedy
any other breach within 30 days of receipt of written notice thereof.
7.4 Either may terminate this Agreement immediately upon written notice where
the other is dissolved or has a receiver, administrator, administrative
receiver or other similar officer appointed over all or part of its
assets or enters into an arrangement or assignment for the benefit of its
creditors or is wound up (other than for the purposes of a bona fide
amalgamation or reconstruction).
7.5 This Agreement shall lapse upon the expiry of the Maintenance Period.
8. Miscellaneous
8.1 No Hiring. Neither party shall induce, solicit, hire or employ, either
directly or indirectly, any employee of the other, or any of the other's
subsidiary or affiliated companies for: (a) the Maintenance Period; or
(b) a period of six (6) months after that employee's termination of
employment, whichever period is the greater.
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8.2 Assignment. This Agreement is personal to IISL. IISL may not assign,
part with or transfer this Agreement without the prior written consent of
Seer OTHER THAN to an Affiliated IBM Company. Seer reserves the right to
assign, transfer or sub-contract this Agreement to any third party.
8.3 Force Majeure. Neither party shall be liable for delay or failure to
perform any of its obligations under this Agreement where such delay or
failure results from any circumstances beyond its reasonable control.
The party affected shall be excused performance of such obligation for as
long as such circumstance prevails.
8.4 Amendment. This Agreement shall not be amended except by a subsequently
dated written amendment signed by duly authorised representatives on
behalf of each party.
8.5 Waiver. The failure of any party to enforce, at any time or for any
period of time, any provision of this Agreement shall not be construed as
a waiver of such provision and shall in no way affect that party's right
later to enforce it.
8.6 Severability. If any provision of this Agreement is void or
unenforceable at law, such provision shall be severed and the remainder
of the Agreement shall continue in full force and effect.
8.7 Whole Agreement: This Agreement constitutes the entire understanding and
agreement of the parties in relation to the subject matter hereof.
8.8 Notices. Any notice required to be given under this Agreement shall be
given in writing and sent by overnight mail, return receipt requested to
the relevant address given at the head of this Agreement.
Notices to Seer should be addressed to the "General Counsel, Seer
Technologies, Inc.".
Notices to IISL should be addressed to _________________________________.
8.9 Clause Headings. Clause headings are included for information purposes
only and do not form part of this Agreement.
8.10 Governing Law. This Agreement shall be governed by the laws of North
Carolina, USA.
AGREED:
Signed by: __________________ Signed by: __________________
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ /s/ ▇. ▇▇▇▇▇▇▇
For and on behalf of Seer For and on behalf of IBM Ireland
Technologies, Inc. Information Services Limited
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Name: ▇. ▇▇▇▇▇▇▇
Title: President Title: Solution Centre Manager
Date: September 8, 1998 Date: September 7, 1998
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APPENDIX
RESPONSE TIMES
SERVICE LEVELS
IISL AND Seer shall, in the provision of the support and maintenance services
described in Clauses 3.2 and 3.3 above, use all reasonable endeavours to meet
the following response times:
Severity Initial Temporary Final
Level Response Resolution Resolution
1 1 hour 1 day CSD
2 1 day 7 days CSD
where:
"Severity Level 1 "means a critical condition affecting the Customer's
production environment with no acceptable workaround.
Requires constant dedicated Customer and IISL resources.
"Severity Level 2 "means a severe restriction, but not a complete obstacle,
to the Customer's ability to use the Software. No
acceptable workaround. Seer may request Customer
resources as necessary.
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