Exhibit 10.1
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
SOFTWARE SERVICES AGREEMENT
THIS SOFTWARE SERVICES AGREEMENT (the "Agreement") is hereby made and entered
into on this 18th day of December, 2000 (the "Effective Date") by and between
INFOSYS TECHNOLOGIES LIMITED, an Indian corporation, having its registered
office at Electronics City, Xxxxx Xxxx, Xxxxxxxxx 000 000, Xxxxx hereinafter
"Vendor") and NETEGRITY, INC., a Delaware corporation, having its offices at 00
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000-0000 (hereinafter "Customer").
RECITALS
WHEREAS, Customer wishes to obtain software services from Vendor; and
WHEREAS, Vendor is interested in providing software services to Customer.
NOW THEREFORE, for and in consideration of the mutual agreements and covenants
hereafter set forth, the parties hereto agree as follows:
1. DEFINITIONS
1.1 "Services" shall mean the software development, modification, or
other tasks to be performed by Vendor for Customer, as set forth in
a statement of work referenced in or attached as Schedule A to this
Agreement.
1.2 "Object Deliverables" shall mean the machine-readable object code
that Vendor is required to produce and deliver to Customer as part
of Services.
1.3 "Source Deliverables" shall mean the human-readable source code that
Vendor is required to produce and deliver to Customer as part of
Services.
1.4 "Documentation" shall mean one copy of all technical specifications
and user manuals for the software.
1.5 "Deliverables" shall mean all of the Object Deliverables, Source
Deliverables and Documentation that Vendor is required to deliver or
otherwise provides to Customer as set forth in a Schedule A.
Page 1 of 13
2. PERFORMANCE BY VENDOR.
2.1 Vendor shall provide Services to Customer in accordance with the
provisions, specifications, conditions, warranties and agreements
set forth herein and the schedules attached hereto. This Agreement
of and by itself does not represent a commitment by Customer to
procure the Services, but recites the terms and conditions governing
such Services when ordered. Commitments against this Agreement shall
be in the form of a Statement of Work (collectively, hereinafter
"Statement(s) of Work") which shall be deemed to be part of this
Agreement and which shall contain, at a minimum, the following
information: (a) the term of performance of the Services authorized
by the Statement of Work or the date by which performance shall be
completed; (b) the fee schedule, plus a description of any other
costs to be paid by Customer relating to the Services, including all
travel, per diem, , and other related charges; (c) the services,
actions, and Deliverables to be provided by Vendor to Customer; and
(d) the Statement of Work shall reference and state that the terms
and conditions of this Agreement shall govern the Statement of Work.
Customer shall have no obligation to pay Vendor for any activities
performed without a Statement of Work.
2.2 If Schedule A to this Agreement states that Vendor shall provide
Services in phases, Vendor agrees to perform each phase of Services
in the order specified by Schedule A to this Agreement, and at the
conclusion of each phase to submit a progress report to Customer
that certifies that Vendor has completed all the tasks that were a
part of that phase. Each progress report shall be signed by an
authorized manager of Vendor who shall certify that the
representations contained therein are complete and accurate. The
progress report shall also set forth any changes recommended by
Vendor with respect to any remaining phases of Services.
3. CUSTOMER ACCEPTANCE UPON SATISFACTION OF TESTS.
3.0 Except as otherwise set forth in a Statement of Work, the terms of
Sections 3,1 through 3.3 below shall apply only to Deliverables
provided on a fixed-price basis.
3.1 Pursuant to the terms set forth in Schedule A to this Agreement,
Vendor shall deliver the Deliverables to Customer and shall notify
Customer of the readiness of the Deliverables for testing by
Customer (the date of such notification hereinafter being referred
to as the "Delivery Date").
3.2 Customer shall have [**] business days after the Delivery Date to
complete testing of the Deliverables. If this test establishes that
the Deliverables do not materially conform to the requirements set
forth in Schedule A, Customer shall forthwith notify Vendor and
Vendor shall, within a reasonable time, modify or otherwise improve
the Deliverables in an effort to make the Deliverables conform to
the applicable requirements.
If no written notification of material non-conformance is received
by Vendor within [**] business days following the Delivery Date of
the Deliverables, the Deliverables shall be deemed accepted by
Customer.
3.3 If Customer notifies Vendor in writing of any material
non-conformance in the Deliverables, and Vendor is unable to remedy
any non-conformance despite two (2) attempts to do so (or such other
number of attempts that the parties shall mutually agree to),
Customer's sole and exclusive remedy shall be to reject the
defective Deliverables and to recover from Vendor the full amount
paid by Customer to Vendor for the defective Deliverables and any
Deliverables materially adversely affected by the failure of the
defective Deliverables.
Page 2 of 13
4. DUTIES AND OBLIGATIONS OF CUSTOMER.
4.1 Customer shall pay Vendor for its performance of Services in
accordance with the terms of this Agreement (including Schedule B)
and the price and schedule of progress payments set forth in
Schedule A to this Agreement. For Services rendered on a
time-and-materials basis, the rates and terms in the attached
Schedule B shall apply and invoices will be provided to Customer on
a monthly basis for Services performed in the prior month. Except as
otherwise set forth in a Statement of Work, invoices shall not be
submitted until the Deliverables provided in accordance with the
Statement of Work have been accepted by Customer in accordance with
Section 3 above. Each invoice shall refer to the applicable
Statement of Work and where applicable the hours expended, the
applicable rates or other performance measurement authorized by the
Statement of Work, the time period covered by the invoice, and
details of any costs and expenses, which are reimbursable or
payable. Except as otherwise set forth in Schedule B or a Statement
of Work, Vendor shall provide original receipts for costs or
expenses reimbursable under the terms of the Statement of Work. The
rates specified in Schedule B shall be valid for a period of one
year from the Effective Date. In addition to the above, all fees for
Services performed pursuant to this Agreement will include an
additional [**] percent ([**]%) charge for technology and
administrative fees. (The [**] percent charge shall only apply to
Services' fees, and shall not apply to any expenses, which may be
reimbursable and/or payable.) Invoices shall be payable [**] days
from receipt by Netegrity and shall be payable by wire transfer to
Vendor's account in Fremont, California.
4.2 Customer will pay the cost of travel to the primary place of work as
provided in Schedule B.
4.3 Customer shall pay or reimburse Vendor for all taxes paid or
incurred based on work performed or products delivered pursuant to
this Agreement, except for any tax based on Vendor's net income or
personal property, Vendor employee withholding taxes, or taxes which
Vendor advised Customer in writing were not applicable.
4.4 Customer shall promptly provide Vendor with a complete library of
any necessary source code and Documentation if the Services that
Vendor is required to perform under this Agreement include
modification of existing Customer software.
4.5 Customer shall cooperate fully with Vendor's performance of
Services.
4.6 Customer shall provide Vendor's employees who will be working
on-site at Customer's premises with suitable office facilities,
including computing resources, clerical support and reprographic
facilities, required for carrying out Services under this Agreement.
4.7 Customer shall provide link connectivity between Customer's site and
Vendor's communication center in the United States to support and
help facilitate work performed abroad for Customer by Vendor.
Customer shall take all steps necessary for the security of its
network. Vendor shall take all applicable security measures at its
end of the network.
5.0 OWNERSHIP
5.1 All computer software and documentation, databases, reports and
other copyrightable materials, product designs, inventions,
discoveries, developments and improvements written, invented, made
or conceived by Vendor in the course of or arising out of the
Services (hereafter "Work Product") shall become and remain the sole
and exclusive property of Customer. Vendor shall promptly notify
Customer in writing of all such Work Product. All copyrightable
materials, including software and computer programs, produced by
Vendor in rendering Services hereunder shall be deemed "works made
for hire" under applicable copyright law. Vendor hereby transfers
and assigns to Customer all right, title and interest in and to all
Work Product including all copyrights and patent rights, whether or
not copyright or patent applications are filed thereon.
5.2 Upon request and at the expense of Customer, Vendor will, from time
to time during and after the term of this Agreement, (a) make or
assist in applications upon such Work Product through attorneys and
representatives designated by Customer for copyright and/or patent
in the United States and in all other countries and shall assign
Page 3 of 13
such applications to Customer, or execute all instruments reasonably
requested by Customer to perfect or enforce its rights in and to the
Work Product.
5.3 In consideration of the opportunity to provide Services hereunder,
Vendor for itself and its employees and successors hereby waives and
agrees not to assert or act upon any moral rights or author's rights
with respect to the Work Product, including without limitation any
rights of paternity, integrity, and disclosure.
5.4 Vendor shall obtain any necessary agreements from its employees to
affect Customer's ownership rights as provided in this Section 5.
5.5 Notwithstanding the above, the Customer acknowledges that all or
part of the Services may contain general know-how and prior
intellectual property of Vendor, which is used or useable in
connection with the providing of products and services by Vendor to
other persons, firms and entities. Accordingly, Customer agrees that
Vendor may use all such know-how and prior intellectual property in
connection with the providing of products and services to others.
All rights in such general know-how and prior intellectual property,
including but not limited to utility routines, generalized
interfaces, algorithms, ideas, techniques, concepts, proprietary
processes, tools, methodologies and improvements thereon shall
continue to vest in Vendor. Should such general know-how and prior
intellectual property form a part of the Deliverables, Vendor grants
to Customer a non-exclusive and perpetual license to use such
know-how and prior intellectual property to enable Customer's and
Customer's personnel's use and Customer's sublicense of such
Deliverables in connection with Customer's products and services.
5.6 Except as otherwise agreed by the parties in writing, provided that
Vendor makes no use of Customer's intellectual property or
Confidential Information, nothing in this Agreement shall be
construed so as to preclude Vendor from developing, using or
marketing software that is competitive with that prepared for
Customer hereunder, irrespective of whether such software is similar
in functionality or design or is otherwise related to the
Deliverables developed by Vendor for Customer pursuant to this
Agreement.
6. REPRESENTATIONS AND WARRANTIES
6.1 Vendor warrants that any Services rendered by Vendor shall be
performed with the care and skill ordinarily used by other members
of Vendor's profession practicing under similar conditions at the
same time and in the same locality. Vendor shall only assign
personnel to perform services for Customer who are competent and
qualified to do so. If, however, in Customer's reasonable opinion
any of Vendor's personnel fail to carry out the Services
competently, Customer may notify Vendor and Vendor shall promptly
rectify the situation at no additional cost to Customer.
6.2 Except as otherwise set forth in a Statement of Work, Vendor further
warrants that, to the extent that any Services rendered hereunder
involve the provision of or modification to computer code, the
results thereof (the "Results") shall be Year 2000 compliant. "Year
2000 Compliant" means that means that the Results will be capable of
correctly processing, providing, and/or receiving date data,
including the correct processing of leap years, within and between
the twentieth and twenty-first centuries and handling the century
date rollover. Vendor shall have no responsibility or liability for
any failure of the Results to be Year 2000 Compliant if such failure
is caused by or related to: (i) Customer or third party hardware,
firmware, software or data not provided and/or modified by Vendor
that interfaces with, is manipulated by, or otherwise operates in
conjunction with the computer code, including but not limited to
inconsistencies between the date handling characteristics of the
computer code and such Customer or third party hardware, firmware,
software, components or data, or (ii) modification of the computer
code provided by Vendor by Customer or a third party, if such
modification results in the computer code not being Year 2000
Compliant.
6.3 Customer represents and warrants that it possesses the legal right
to have the intellectual property with respect to which Vendor is to
perform Services under this Agreement used, maintained and modified
by Vendor.
6.4 THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE ONLY
WARRANTIES MADE, AND THERE ARE NO OTHER WARRANTIES, EXPRESS OR
IMPLIED, AND SPECIFICALLY THERE ARE NO IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Page 4 of 13
7. INDEMNIFICATION.
7.1 Except as provided in Section 7.3 below, Vendor shall, at its own
expense, defend or, at its option, settle any claim, suit, or action
brought against Customer by third parties for infringement or
misappropriation of a third party's copyright, patent, trade secret,
or other intellectual property right by any Deliverables provided by
Vendor to Customer under this Agreement, and shall pay any damages
or settlement assessed against Customer under such a claim. Vendor
shall have sole control and authority over the defense or settlement
of such a claim, suit or action, including the right, at its sole
discretion, to (i) procure for Customer the right to use the
infringing Deliverables, (ii) replace the infringing Deliverables
with non-infringing, functionally equivalent Deliverables, (iii)
suitably modify the infringing Deliverables, or (iv) accept return
of the infringing Deliverables and refund any fees paid by Customer
to Vendor with respect to the infringing Deliverables. Customer
shall be obligated to give Vendor prompt written notice of, and the
parties shall cooperate in, the defense of any claim, suit or
action, including appeals and negotiations. This indemnity shall not
extend to any claim of infringement or misappropriation resulting
from Customer's specifications, modification of the Deliverables
unless made by Vendor, and use or incorporation of the Deliverables
in a manner for which the Deliverables were not designed or with
items not provided by Vendor, if such claim of infringement would
not have arisen but for such conformance to specification,
modification, or incorporation. Except as specified above, Vendor
shall not be liable for any costs or expenses incurred without its
prior written authorization.
7.2 SECTION 7.1 ABOVE STATES THE ENTIRE INDEMNITY OBLIGATIONS OF VENDOR,
AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR
ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, OR
OTHER INTELLECTUAL PROPERTY RIGHT BY SOFTWARE PROVIDED BY VENDOR TO
CUSTOMER UNDER THIS AGREEMENT.
7.3 Except as provided in Section 7.1 above, Customer shall, at its own
expense, defend any claim, suit, or action brought against Vendor by
third parties for infringement or misappropriation of a third
party's copyright, patent, trade secret or other intellectual
property rights by any intellectual property provided by Customer to
Vendor under this Agreement, and shall pay any damages or settlement
assessed against Vendor under such a claim. Vendor shall be
obligated to give Customer prompt written notice of, and the parties
shall cooperate in, the defense of any claim, suit or action,
including appeals and negotiations. This indemnity shall not extend
to any claim of infringement or misappropriation resulting from the
Vendor's modification of such intellectual property, if such claim
would not have arisen but for such modification. Except as specified
above, Customer shall not be liable for any costs or expenses
incurred without its prior written authorization.
7.4 SECTION 7.3 ABOVE STATES THE ENTIRE INDEMNITY OBLIGATIONS OF
CUSTOMER, AND THE EXCLUSIVE REMEDY OF VENDOR, WITH RESPECT TO ANY
ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE
SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHT BY ANY INTELLECTUAL
PROPERTY PROVIDED BY CUSTOMER TO VENDOR UNDER THIS AGREEMENT.
7.5 Customer and Vendor shall each indemnify, defend, and hold harmless
the other from any claim or damages due to the injury or death of
any individual, or the loss or damage to real or tangible personal
property, resulting from the willful acts or omissions or gross
negligence of the indemnifying party, its agents or employees.
8. LIMITATION OF LIABILITY.
EACH PARTY'S LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE, FOR ANY
CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED
THE TOTAL AMOUNT PAID TO VENDOR BY CUSTOMER UNDER THE APPLICABLE STATEMENT
OF WORK FROM WHICH THE CLAIM AROSE OR IS RELATED. IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES
BY ANYONE, NOR SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE
Page 5 of 13
DAMAGES, HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES
RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF
BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR OF ANY
OTHER OBLIGATIONS RELATING TO THIS AGREEMENT, WHETHER OR NOT THE PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS PARAGRAPH SHALL NOT
APPLY TO DAMAGES RESULTING FROM WRONGFUL DISCLOSURE OF CONFIDENTIAL
INFORMATION, INFRINGEMENT OF THE OTHER PARTY'S INTELLECTUAL PROPERTY
RIGHTS, OR EITHER PARTY'S INDEMNIFICATION OBLIGATIONS IN SECTION 7 ABOVE.
9. TERM OF AGREEMENT.
The term of this Agreement shall commence on the Effective Date and
shall continue unless terminated in accordance with the provisions of this
Agreement. The provisions of Sections 5, 6, 7, 8, 12.2, and 12.4 of this
Agreement shall survive any termination, cancellation or expiration of
this Agreement.
10. TERMINATION.
10.1 Either party has the right to terminate this Agreement (a) if the
other breaches or is in default of any obligation hereunder which
default is incapable of cure or which, being capable of cure, has
not been cured within ten (10) calendar days after receipt of notice
of such default (or such additional cure period as the nondefaulting
party may authorize) or (b) immediately upon the adoption of any
applicable law, rule or regulation, or revision thereof, or upon any
change in the interpretation or administration thereof, that
materially affects Customer's rights or interests in Work Product
and/or the Deliverables, provided that after termination under this
subsection (b) Customer shall pay Vendor for Services provided to
the date of termination and Vendor's costs incurred and otherwise
payable hereunder.
10.2 Customer may terminate this Agreement and/or any Statement of Work
issued hereunder at any time without cause by submitting to Vendor
thirty (30) calendar days' prior written notice to terminate. Upon
receipt of such notice, Vendor shall perform only those efforts
necessary to close out any ongoing project within thirty days, as
determined by consultation with Customer, or otherwise as Customer
may direct. Such efforts may include without limitation the
following: employee relocation, summary of work to date, and
identification of work yet unfinished. Vendor shall promptly notify
Customer of costs incurred to the effective date of termination and
Customer shall pay all such unpaid allowed and supported fees and
costs, related to such termination, but excluding charges for the
period following the effective date of termination for activities
not reasonably necessary to close out the project. Vendor may
terminate this Agreement at any time without cause by submitting to
Customer sixty (60) calendar days' prior written notice to
terminate; provided that such termination shall not affect the
completion of any Statement of Work which is in progress, and such
Statement of Work shall continue to be governed by the terms and
conditions of this Agreement. Notwithstanding the foregoing, Vendor
may terminate an open-ended Statement of Work without a specified
end date for convenience upon sixty (60) days' prior written notice
to Customer.
10.3 Either party may terminate this Agreement by written notice to the
other and may regard the other party as in default of this
Agreement, if the other party becomes insolvent, makes a general
assignment for the benefit of creditors, files a voluntary petition
of bankruptcy, suffers or permits the appointment of a receiver for
its business or assets, or becomes subject to any proceedings under
any bankruptcy or insolvency law, whether domestic or foreign, or
has wound up or liquidated, voluntarily or otherwise. In the event
that any of the above events occurs, that party shall immediately
notify the other party of its occurrence.
10.4 In the event that either party is unable to perform any of its
obligations under this Agreement as a result of natural disasters,
actions or decrees of governmental bodies, communication line
failures not the fault of the affected party, or any other delay or
failure which arises from causes beyond a party's reasonable control
(hereafter referred to as a "Force Majeure Event"), the party whose
performance has been so affected shall immediately give notice to
the other party and shall do everything reasonably possible to
resume performance. Upon receipt of such notice, this Agreement
shall be
Page 6 of 13
immediately suspended. If the period of nonperformance exceeds
fifteen (15) days from the receipt of notice of the Force Majeure
Event, the party whose ability to perform has not been so affected
may by giving written notice terminate this Agreement.
10.5 Upon the termination of this Agreement by either party, or its
expiration, each party forthwith shall return to the other all
papers, materials and other properties of the other held by it in
connection with the performance of this Agreement; provided,
however, that if Customer terminates because Vendor is in default or
unable to perform, Customer shall have the right to keep such
papers, materials and other properties until such time as Customer
has found a comparable replacement for Vendor.
11. NOTICES.
All notices to be given in connection with this Agreement
shall be effective upon receipt, shall be made in writing and
shall be sufficiently given if personally delivered or if sent
by courier or other express mail service, postage prepaid,
addressed to the party entitled or required to receive such
notice at the address for such party as follows:
To Customer:
Netegrity, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Vice President and CFO
To Vendor:
Infosys Technologies Limited
Attention: X.X. Xxxxxxxx Xxxxxx
Chairman and Managing Director
Electronics City, Xxxxx Xxxx
Xxxxxxxxx 000 000
Xxxxx
Either party may change such address by notice to the other party.
12. GENERAL PROVISIONS.
12.1 Non-Waiver and Amendment. No waiver, alteration, modification, or
cancellation of any of the provisions of this Agreement shall be
binding unless made in writing and signed by both Customer and
Vendor. The failure of either Customer or Vendor at any time or
times to require performance of any provision hereof shall in no
manner affect the right at a later time to enforce such provision.
No remedy referred to in this Agreement is intended to be exclusive,
but each shall be cumulative and in addition to any other remedy
referred to herein or otherwise available at law, in equity or
otherwise.
12.2 Confidential and Proprietary Information. The provisions of the
Mutual Non-Disclosure Agreement between Vendor and Customer dated
November 17, 2000 are hereby incorporated by reference.
12.3 Independent Contractors. It is expressly understood that Vendor and
Customer are contractors independent of one another, and that
neither has the authority to bind the other to any third person or
otherwise to act in any way as the representative of the other,
unless otherwise expressly agreed to in a writing signed by both
parties hereto. Vendor shall have the right to assign or subcontract
any of its obligations under this Agreement to others. If any of its
obligations under this Agreement are assigned or subcontracted to
others, Vendor shall take steps to ensure that its
Page 7 of 13
assignee or subcontractor observe and enforce the confidentiality
requirements and the intellectual property ownership assignment
provisions of this Agreement.
12.4 Non-Solicit/No-Hire. Except as otherwise expressly agreed in
writing, Vendor and Customer each agree not to directly or
indirectly or through third parties knowingly solicit or hire for
employment any of the other party's personnel who are involved in
the provision of Services hereunder while any such person is
involved in the provision of Services, and for a period of [**]
following such person's provision of Services hereunder. For the
purposes hereof, "knowingly" shall mean that the representatives of
a party responsible for hiring or soliciting of employees, or
approving the same, has knowledge, or reasonably could have been
expected to have knowledge, of this provision.
12.5 Customer Name. Six (6) months following the Effective Date and
thereafter during the term of this Agreement only, Vendor may
include Customer's name in a general listing of Vendor customers.
Inclusion of Customer's name in the general customer list shall not
imply endorsement of Vendor by Customer.
12.6 Arbitration. Except for matters relating to either party's
intellectual property rights, any unresolved dispute or controversy
arising under or in connection with this Agreement shall be settled
exclusively by arbitration, conducted before a panel of three
arbitrators in Boston, Massachusetts, in accordance with the rules
of the American Arbitration Association then in effect. The
arbitrators shall not have the authority to add to, detract from, or
modify any provision hereof nor to award punitive damages to any
injured party. A decision by a majority of the arbitration panel
shall be final and binding. Judgment may be entered on the
arbitrators' award in any court having jurisdiction.
12.7 Authority; Compliance with Laws. Vendor represents that it has all
licenses, permits, and authorization necessary and has obtained all
approvals from any government office, board of directors or
shareholders necessary to carry out the Services and related
activities and to comply with the terms of this Agreement. Vendor
acknowledges that certain information, including but not limited to
Work Product, may be restricted by law of the United States
Government and other governments from export and import to certain
countries and certain organizations and individuals, and agrees to
comply with such laws. Vendor agrees that no information or Work
Product or portion thereof will be exported or re-exported by
Vendor, except to Customer in the United States or as Customer
otherwise directs. In performing any activities hereunder, Vendor
agrees to comply with the U.S. Foreign Corrupt Practices Act and all
applicable laws and regulations of the United States and any other
government with jurisdiction over Vendor. Vendor warrants that any
personnel of Vendor offered to Customer hereunder for work in the
United States is authorized to work in the United States, according
to the Immigration Reform and Control Act (IRCA). Vendor also
certifies that it has on file a validly completed Federal Form I-9
(Employment Eligibility Verification) for each such offered
personnel and will provide a certified copy of said form to Customer
upon Customer's request.
12.8 Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the substantive laws of the
Commonwealth of Massachusetts, without regard to its principles of
conflicts of laws. The state and federal courts located in
Massachusetts shall have nonexclusive jurisdiction of all matters
and disputes arising under this Agreement or in connection with the
Services performed and/or Work Product provided hereunder. The
United Nations Convention on the Sale of Goods shall not apply to
this Agreement.
12.9 Entire Agreement. This Agreement, including the Schedules attached
hereto, sets forth the entire agreement and understanding of the
parties with respect to the subject matter hereof, and supersedes
all prior or contemporaneous oral and written agreements,
understandings, representations, conditions and all other
communications relating thereto.
Page 8 of 13
IN WITNESS WHEREOF, the parties have executed this Agreement by their authorized
representatives as of the Effective Date.
INFOSYS TECHNOLOGIES LIMITED NETEGRITY, INC.
/s/ Xxxxx Xxxxxxx /s/ Xxxxxx Xxxxxx
------------------------- -------------------------------
Authorized Signatory Authorized Signatory
Xxxxx Xxxxxxx Xxxxxx Xxxxxx
------------------------- -------------------------------
Name Name
Vice President Vice President, Development
-------------------------- --------------------------------
Title Title
Page 9 of 13
SCHEDULE B
RATES FOR TIME AND MATERIAL SERVICES
ONSITE IN US (CUSTOMER'S PREMISES):
Engineer US$ [**] per diem per person, plus monthly
offshore rate below
Project Manager/Technical Lead US$ [**] per diem per person, plus monthly
offshore rate below
In addition, Customer shall pay US$[**] per engineer to cover round trip airfare
and other related travel expenses.
OFFSHORE IN INDIA (AT VENDOR'S DEVELOPMENT CENTERS):
Engineer US$ [**] per person per month*
Project Manager/Technical Lead US$ [**] per person per month*
The rates specified in this Schedule B shall be valid for a period of one
year from the Effective Date. In addition to the above, all fees for Services
performed pursuant to this Agreement will include an additional [**] percent
([**]%) charge for technology and administrative fees. (The [**] percent charge
shall only apply to Services' fees, and shall not apply to any expenses, which
may be reimbursable and/or payable.) Upon execution of this Agreement by both
parties Customer shall make an advance payment of $[**], which shall be credited
by Vendor against future fees payable by Customer.
Invoices shall be payable within [**] days of receipt by Customer and
shall be payable via wire transfer to Vendor's account in Fremont, California.
*The above rates assume the fully loaded cost of an engineer/project
manager. Customer shall not be responsible for the cost of any hardware,
software or other materials required for Vendor's offshore performance of the
Services hereunder.
Except as provided in this Schedule B, Customer shall not be responsible
for the payment or reimbursement of any expenses or other costs incurred by
Vendor or its personnel.
The per diem rates above shall begin on the first day after the Effective
Date that Vendor's personnel provide Services to Customer.
INFOSYS TECHNOLOGIES LIMITED NETEGRITY, INC.
/s/ Xxxxx Xxxxxxx /s/ Xxxxxx Xxxxxx
------------------------- -------------------------------
Authorized Signatory Authorized Signatory
Xxxxx Xxxxxxx Xxxxxx Xxxxxx
------------------------- -------------------------------
Name Name
Vice President Vice President, Development
-------------------------- --------------------------------
Title Title
SCHEDULE A
(Insert applicable proposal information here)
Date: November 27, 2000
Document Title: [**]
Reference number: [**] (the "Proposal")
The parties agree that a definitive Statement of Work incorporating the Proposal
concepts will be mutually agreed by the parties within ten (10) business days of
the Effective Date and incorporated by reference herein.
AMENDMENT NO.1
TO
SOFTWARE SERVICES AGREEMENT
BETWEEN
NETEGRITY, INC
AND
INFOSYS TECHNOLOGIES LIMITED
Amendment No.1 is made on this 17 day of January, 2002 to the Software Services
Agreement dated December 18, 2000 ("Agreement"), by and between NETEGRITY, INC
("Netegrity"), INFOSYS TECHNOLOGIES LIMITED ("Infosys")
The Parties wish to amend the Agreement as follows:
AMENDMENT
Now, Therefore, in consideration of the mutual obligations in this Amendment
No.1, and for other good consideration, the receipt and sufficiency of which are
acknowledged, the parties to this Amendment No. 1 agree as follows:
1. This amendment shall take effect from January 01, 2002.
2. Schedule B attached to the Agreement is deleted in its entirety and
replaced with the new form of Schedule B attached hereto and incorporated
herein by this reference.
IN WITNESS WHEREOF, the parties have executed this Amendment No.1 by their duly
authorized officers as of the date first written above.
Accepted by: Accepted by:
INFOSYS TECHNOLOGIES LIMITED NETEGRITY, INC.
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
---------------------------------- ----------------------------------
Authorized Signatory Authorized Signatory
Xxxxxxxx Xxxxxx Xxxxxxx Xxxxxx
---------------------------------- ----------------------------------
Name Name
Member Of The Board VP, Access Control
---------------------------------- ----------------------------------
Title Title
2-11-02 1/17/02
---------------------------------- ----------------------------------
Date Date
SCHEDULE B
Infosys Rates for Time and Material Services effective 1/1/02 and
continuing through 12/31/02
Effective January 1, 2002 through December 31, 2002, the rates stated in Table-I
shall apply for off-shore software engineering services to Netegrity.
TABLE-I
TIME & MATERIAL RATES - SLAB BASED MODEL
INFOSYS TEAM SIZE ROLE OFF-SHORE RATE OTHER FEE
(USD PER MONTH)
For first [**] Project Manager/ $[**] [**]
resources Technology Lead
Software Engineer $[**] [**]
[**]
For [**] to Project Manager/ $[**] [**]
[**]resource Technology Lead
Software Engineer $[**] [**]
[**]
For [**] and Project Manager/ $[**] [**]
additional resource Technology Lead
Software Engineer $[**] [**]
ON-SITE ENGINEERING RATES: Off-Shore Rates + $[**] per Diem
+ $[**] for air travel and visa charges per resource per trip
SPECIAL TERMS FOR SERVICES DURING THE CALENDAR YEAR 2002
1. In consideration of Netegrity's commitment set forth in this Schedule B,
Infosys agrees to apply lowest rate level ($[**] for Software Engineer and
$[**] for Project Manager/Technology Lead, regardless of number of
consultants retained) from the above rate chart, for all consultants on
Netegrity project(s), effective January 01, 2002.
2. In consideration of the pricing in Section 1, Netegrity agrees to
pay Infosys a minimum of $[**] for calendar year 2002.
3. In the event at end of the calendar 2002, the actual xxxxxxxx are less
than $[**], Netegrity shall pay Infosys the difference between the actual
xxxxxxxx and $[**]. In case of a shortfall, Infosys shall at the end of
the calendar year 2002 present an invoice for difference amount between
the actual billing and $[**] and the invoice shall be payable within [**]
days from the date of invoice.
4. The parties agree to review the above commitments on a quarterly
basis. At the end of each calendar quarter, Netegrity shall have
the option of terminating the arrangement
described in Sections 2 and 3 above for convenience by paying Infosys the
committed quarterly amount of $[**]. Thereafter, unless otherwise agreed
by the parties in writing, for the remainder of calendar 2002 Infosys
would provide services to Netegrity only as requested by Netegrity and as
per rates stated in Table-I and Netegrity would only pay for services
actually performed. Other than as provided above, Netegrity is not
obligated to retain any Infosys consultants or otherwise pay Infosys any
additional amounts, except for payment for services actually used by
Netegrity.
OTHER TERMS
1. The Parties agree to review the "Special Terms" above at the end of
the year 2002 for extension to subsequent years.
2. Monthly rate is for [**] working days in a month with [**] hours per
day.
3. Invoices shall be raised for the actual number of hours worked by each
resource. For support provided during holidays and weekends, the charges
shall be the normal rate for the number of hours worked.
4. All invoices shall be paid off via check or wire transfer within
[**] days from the date of invoice.
Accepted by: Accepted by:
---------------------------------- ---------------------------------
INFOSYS TECHNOLOGIES LIMITED NETEGRITY, INC.
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
---------------------------------- ---------------------------------
Authorized Signatory Authorized Signatory
Xxxxxxxx Xxxxxx Xxxxxxx Xxxxxx
---------------------------------- ---------------------------------
Name Name
Member Of The Board VP Access Control
---------------------------------- ---------------------------------
Title Title
2-11-02 1/17/02
---------------------------------- ---------------------------------
Date Date
AMENDMENT NO. 2
TO
SOFTWARE SERVICES AGREEMENT
BETWEEN
NETEGITY, INC
AND
INFOSYS TECHNOLOGIES LIMITED
Amendment No.2 is made on this 21 day of Jan 2003 to the Software Services
Agreement dated December 18, 2000 (the "Agreement"), by and between Netegrity,
Inc ("Netegrity") and Infosys Technologies Limited ("Infosys")
The Parties wish to amend the Agreement as follows:
AMENDMENT
Now, Therefore, in consideration of the mutual obligations in this Amendment
No.2 and for other good consideration, the receipt and sufficiency of which are
acknowledged, the parties to this Amendment No. 2 agree as follows:
1. This Amendment No. 2 shall take effect from January 01, 2003.
2. Schedule B attached to the Agreement is deleted in its entirety and
replaced with the new form of Schedule B attached hereto and incorporated
herein by this reference.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 2 by their duly
authorized officers as of the date first written above.
Accepted by: Accepted by:
---------------------------------- ---------------------------------
INFOSYS TECHNOLOGIES LIMITED NETEGRITY, INC.
/s/ Xxxxxxx Xxxx /s/ Xxxxxxx X. Xxxxxx
---------------------------------- ---------------------------------
Authorized Signatory Authorized Signatory
Xxxxxxx Xxxx Xxxxxxx Xxxxxx
---------------------------------- ---------------------------------
Name Name
Head Worldwide Sales
Communications & Product Services VP Engineering
---------------------------------- ---------------------------------
Title Title
1-22-03 1-21-03
---------------------------------- ---------------------------------
Date Date
SCHEDULE B
Infosys Ratios for Time and Material Services effective 1/1/03 through 12/31/03
Effective January 1, 2003, the rates stated in Table-1 shall apply for software
engineering services to Netegrity, Inc.
TABLE I
RATE OFF-SHORE RATE OTHER FEE
(USD PER MONTH)
Project Manager/Technology $[**] [**]
Lead
Software Engineer $[**] [**]
ON-SITE ENGINEERING RATES: Off-Shore Rates + $[**] per Diem
+ $[**] for air travel and visa charges per resource per trip
OTHER TERMS
1. Invoices shall be raised for the actual number of hours worked subject to
a minimum of [**] hours onsite and [**] hours offshore. For support
provided during holidays and weekends, the charges shall be the normal
rate for the number of hours worked.
2. Invoices shall be submitted electronically and shall be payable within
[**] days of Netegrity receiving them.
AMENDMENT NO. 3 TO SOFTWARE SERVICES AGREEMENT BETWEEN
NETEGRITY, INC
AND
INFOSYS TECHNOLOGIES LIMITED
Amendment No. 3 is made on this 11 Day of February 2004 to the Software Services
Agreement dated December 18, 2000 ("Agreement"), by and between NETEGRITY INC
("Netegrity"), INFOSYS TECHNOLOGIES LIMITED ("Infosys").
The Parties wish to amend the Agreement as follows:
AMENDMENT
Now, Therefore, in consideration of the mutual obligations in this Amendment
No.3, and for other good consideration, the receipt and sufficiency of which are
acknowledged, the parties to this Amendment No. 3 agree as follows:
1. This amendment shall take effect from January 01, 2004.
2. Schedule B attached to the Agreement is deleted in its entirety and
replaced with the new form of Schedule B attached hereto and incorporated
herein by this reference.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 3 by their duly
authorized officers as of the date first written above.
Accepted by: Accepted by:
INFOSYS TECHNOLOGIES LIMITED NETEGRITY, INC.
/s/ Xxxxxx Xxxxxxxxx /s/ Xxxxxxx Xxxxxx
---------------------------------- ---------------------------------
Authorized Signatory Authorized Signatory
Xxxxxx Xxxxxxxxx Xxxxxxx Xxxxxx
---------------------------------- ---------------------------------
Name Name
Vice President VP Engineering
---------------------------------- ---------------------------------
Title Title
3-1-04 2/11/04
---------------------------------- ---------------------------------
Date Date
SCHEDULE B
Infosys Rates for Time and Material Services effective 1/1/2004 to 12/31/2005
Effective January 1, 2004, the rates stated in Table-I shall apply for off-shore
software engineering services to Netegrity.
TABLE-I
TIME & MATERIAL RATES - SLAB BASED MODEL
NETEGRITY'S ANNUAL ONSITE PERDIEM
SPEND ON INFOSYS OFFSHORE RATE RATE (USD PER
PROJECTS (USD PER PERSON PERSON) PER
(USD PER YEAR) RESOURCE ROLE PER MONTH) CALENDAR DAY
Slab #1: Less than Project Manager/ $[**] $[**]
$[**] Tech Lead/ Onsite
Coordinator
Software Engineer/ $[**] $[**]
QA Tester
$[**] $[**]
SLAB #2: $[**]TO PROJECT MANAGER/ $[**] $[**]
$[**] TECH LEAD/ ONSITE
COORDINATOR
SOFTWARE ENGINEER/ $[**] $[**]
QA TESTER
$[**] $[**]
Slab #3: $[**]to Project Manager/ $[**] $[**]
$[**] Tech Lead/ Onsite
Coordinator
Software Engineer/ $[**] $[**]
QA Tester
$[**] $[**]
Slab #4: Over $[**] Project Manager/ $[**] $[**]
Tech Lead/ Onsite
Coordinator
Software Engineer/ $[**] $[**]
QA Tester
ONSITE RATES will be computed as: Off-Shore Rate + Onsite Per Diem + US $[**]
for air travel and visa charges per resource per trip. Expenses towards trips
(if any) from Netegrity's primary work location in the US to any other location
will be charged at actuals. The slab amounts in the above table are exclusive of
all taxes, infrastructure costs, offshore lab costs and other expenses.
SPECIAL TERMS FOR SERVICES DURING THE CALENDAR YEAR 2004
1. For the calendar year 2004, Netegrity guarantees to pay Infosys at least
US $4M on annual basis towards various product development projects.
Infosys will continue to deliver the projects as a combination of offshore
and/or onsite services as per project requirements.
2. In view of section 1 above, Infosys agrees to apply the T&M rates
corresponding to SLAB #2 from the rate chart as shown in Table-I for all
resources on the project effective January 01, 2004.
3. In view of section 2 above, all projects will be executed based on
the new rates.
4. In the event, at end of a calendar quarter, the cumulative billing figure
for that quarter is less than US $[**], Netegrity shall pay Infosys [**]
of US $[**]. In case of such a shortfall, Infosys shall, at the
end of the quarter, present an invoice to Netegrity for difference amount
and the invoice shall be payable within [**] days from the date of
invoice.
5. In the event, at the end of a calendar quarter, the cumulative
billing figure for that quarter exceeds US $[**], Netegrity will be
eligible for further [**]% [**] on the invoice amount billed in that
specific quarter. In such a scenario, Infosys will determine and [**].
However, this [**] is applicable only for that quarter and [**] will be
given for the previous quarters.
6. In the event of Netegrity's decision to discontinue the relationship
during the course of the contract, Netegrity will fulfill its obligations
as per section 1, in addition to other obligations as set forth in the
Master Services Agreement. In such a scenario, Netegrity shall pay Infosys
the difference of US $4M and the actual billing amount till that date,
within [**] days of Infosys raising the invoice.
7. In the event of Infosys' decision to discontinue the relationship during
the course of the contract, Netegrity shall pay all invoices raised
towards services rendered till the date of contract cancellation. In such
an event, Netegrity is not required to abide by the terms of section 1
above.
OTHER TERMS
1. The Parties agree to review the above business structure at the end of
year 2004 to determine a suitable slab for year 2005 depending on
Netegrity's product roadmap for 2005.
2. Monthly rate is for [**] working days in a month with [**] hours per
working day at onsite and [**] hours per working day at offshore.
3. If any resource works less than [**] days, the monthly rate will be
prorated and only the actual number of work days shall be charged to
Netegrity. For support and services rendered during weekends and holidays,
Netegrity shall pay Infosys for the same, as extra, at the prorated
monthly rates.
4. Per-diem rates for onsite services shall be computed on a calendar
day basis.