EXHIBIT 10.2.4
Agreement Number: DTT'S-1
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MASTER SERVICES AGREEMENT
This agreement ("Agreement") is made as of June 1, 1999 ("Effective Date"),
between Linuxcare, Inc., a Delaware corporation with an office at 000 Xxxxxxxx
Xxxxxx, Xxx Xxxxxxxxx, XX 00000, XXX (Phone: 000-000-0000; Fax: 000.000.0000)
("Linuxcare") and the "Customer" listed below.
Customer: Densa Techno Tokyo Co., Ltd Contact: Xxxxxxx Xxxxxxx
Address: 1-23-14 Ebisu Shibuya-ku Phone: x00-0-0000-0000
Xxxxx, Xxxxx 150-0013 Fax: x00-0-0000-0000
E-Mail: xxx0000@xx.xxx.xx.xx
SERVICES INFORMATION
Service Level: Silver Plus SLA as defined in
Exhibit B
Service Fee Period: July 25, 1999 - July 24, 2000
Service Incident Cap: [*]
Service Fee: [*]
SERVICES PROVIDED
Subject to payment of all applicable fees, Linuxcare will use reasonable
commercial efforts to perform the support services specified in the Statement of
Work ("SOW") attached hereto as Exhibit B ("Services") and incorporated herein,
in accordance with the Terms and Conditions attached hereto as Exhibit A , and
incorporated herein (collectively the "Exhibits"). Linuxcare may change the SOW,
the Service Fee, and the services that will be performed for a particular
Service Level, at any time; such changes will take effect at the beginning of
the next Service Fee Period. Customer understands that Linuxcare's performance
is dependent in part on Customer's actions. Accordingly, any dates or time
periods relevant to performance of Services by Linuxcare shall appropriately and
equitably extended to account for any delays resulting from changes to Customer
products or otherwise due to Customer. Customer may request additional hours or
levels of Services ("Extended Services"), which Linuxcare may provide at
Linuxcare's sole discretion, provided that Customer pays Linuxcare's then
current fees for such Extended Services.
The Exhibits contain, among other things, warranty disclaimers and
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liability limitations. Any different or additional terms of any related purchase
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order, confirmation, or similar form even if signed by the parties after the
date hereof shall have no force or effect. References in this Agreement or the
Exhibits to a capitalized term appearing on this cover page shall have the
meaning or value of such term on this cover page.
Customer: Linuxcare:
By: /s/ IKUICHI TAKEYAMN By: /s/ XXXXXXX XXXXXX
Name: IKUICHI TAKEYAMN Name: XXXXXXX XXXXXX
Title: PRESIDENT & CEO Title: PRESIDENT & CEO
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
EXHIBIT A
TERMS AND CONDITIONS
1. Training. Subject to payment of all fees, Linuxcare will provide the
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training specified in Linuxcare's current, published "Linuxcare Training
Programs" documentation. Unless otherwise arranged between Customer and
Linuxcare, all training shall occur at Linuxcare's facilities in San
Francisco, California. The fees for training will be Linuxcare's current,
published training fees, less the Training Discount ("Training Fees").
2. Fees and Payment. Customer shall pay Linuxcare the fees for the selected
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Service Level shown in the Services Information section of this Master
Services Agreement for each Service Fee Period. ("Service Fees"). Customer
will pay the Service Fees for the initial Service Fee Period within 30 days
of the Effective Date. Customer will pay the Service Fees for subsequent
Service Fee Periods within 30 days after receipt of Linuxcare's invoice.
Customer will also pay Linuxcare all Training Fees and Extended Services
fees within 30 days after receipt of Linuxcare's invoice therefor. All
payments are non-refundable. Any payments over 15 days overdue will bear a
late payment fee of the lower of 1.5% per month of the outstanding balance
or the maximum rate allowed by law. Linuxcare shall refund to Customer any
amounts actually paid to Linuxcare by Customer which exceed amounts due
hereunder, minus any costs, fees, taxes, duties or other implications, if
any, arising in connection with such overpayment.
3. Proprietary Rights. As between the parties, Linuxcare will retain all
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right, title and interest in and to any software, tools, techniques, and
other materials used in connection with providing the Services ("Linuxcare
Materials"). As between the parties, Customer will retain all right, title
and interest in and to any software, products, documentation and other
materials it supplies. Linuxcare hereby assigns to Customer all right,
title and interest, in any work product created as part of the Services
("Work Product"), but this assignment does not include any portion of the
Linuxcare Materials, and will not prevent Linuxcare from using the
expertise, ideas and know-how learned while performing Services for other
purposes (including, without limitation, for itself or on behalf of third
parties).
4. Confidential Information. Each party ("receiving party") agrees that all
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code, inventions, algorithms, know-how and ideas and all other business,
technical and financial information it obtains from the other party
("disclosing party"), but not including work product that is assigned to
Customer by Linuxcare pursuant to Section 3, are the confidential property
of the disclosing party ("Confidential Information" of the disclosing
party). Except with the consent of the disclosing party, the receiving
party shall hold in confidence and not use or disclose any Confidential
Information of the disclosing party for at least seven (7) years after this
Agreement expires or otherwise terminates. The receiving party's
nondisclosure obligation shall not apply to information it can document:
(i) is generally available to the public other than through breach of this
Agreement; (ii) is rightfully disclosed to the receiving party by a third
party; or (iii) is independently developed by the receiving party without
use of any Confidential Information of the disclosing party. Because of the
unique and proprietary nature of the Confidential Information, it is
understood and agreed that the disclosing party's remedies at law for a
breach by the receiving party of its obligations under this Section will be
inadequate and that the disclosing party shall be entitled to equitable
relief (including without limitation provisional and permanent injunctive
relief and specific performance). Nothing stated herein shall limit any
other remedies provided under this Agreement or available to the disclosing
party at law. Upon expiration or termination of this Agreement for any
reason, each party will return all copies of all Confidential Information
of the other party in its possession or control.
5. Termination. This Agreement will have an initial term of the earlier of one
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year from the Effective Date or the date that Customer uses up its
Incidences under its Service Level (initial "Service Fee Period") and shall
automatically renew on each anniversary of the initial Service Fee Period
for subsequent Service Fee Periods (subject to payment of Linuxcare's then
current rates for additional Incidences) unless terminated by either party.
For the purposes of this Agreement, "Incident" shall mean a single
identified customer issue or problem. Each Incident is only valid
during the Service Fee Period it was purchased in. One call or e-mail may
include multiple Incidents, and a single Incident may require more than one
call or e-mail to resolve. Either party may terminate this Agreement upon
thirty (30) days written notice to the other party, except if Linuxcare is
terminating the Agreement such termination will not be effective until the
end of any fully paid-up Service Fee Period. Linuxcare may terminate this
Agreement at any time in the case of non-payment by Customer of any fees,
unless Customer pays such fees in full within ten (10) days after such
notice. Sections 4, 5, 7, 8, and 9 of this Agreement, and all accrued
rights to payment, shall survive termination. Termination is not an
exclusive remedy and all other remedies will be available whether or not
termination occurs.
6. Warranty and Disclaimer. Linuxcare hereby warrants to Customer, and only
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Customer, that all Services shall be performed in a professional and
workmanlike manner. THE PARTIES ACKNOWLEDGE THAT THIS IS AN AGREEMENT FOR
SERVICES AND NOT FOR THE SUPPLY OF GOODS. EXCEPT FOR THE FOREGOING,
LINUXCARE MAKES NO OTHER WARRANTIES OR REPRESENTATIONS AS TO THE SERVICES
RENDERED. AND HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES,
INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. LINUXCARE FURTHER
DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL SUCCEED IN RESOLVING ANY
PROBLEM, OR THAT ANY WORK PRODUCT OF THE SERVICES WILL BE FREE FROM PROGRAM
ERRORS.
7. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR
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OTHERWISE, AND EXCEPT FOR BODILY INJURY, LINUXCARE SHALL NOT BE LIABLE OR
OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY:
(I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO IT
HEREUNDER WITH RESPECT TO THE APPLICABLE SERVICES; (II) FOR ANY COST OF
PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; OR (III)
FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA.
8. NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE OR OBLIGATED WITH RESPECT
TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE,
STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (I) FOR ANY MATTER
BEYOND ITS REASONABLE CONTROL, OR (II) FOR ANY INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES OR LOST PROFITS.
9. Export Control. Customer shall comply with the U.S. Foreign Corrupt
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Practices Act and all applicable export laws, restrictions, and regulations
of the U.S. and foreign agency or authority.
10. Miscellaneous. This Agreement is not assignable or transferable by Customer
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without the prior written consent of Linuxcare; any attempt to do so
shall be void. Linuxcare may assign this Agreement in whole or in part, or
subcontract the performance of Services to third parties. Services may be
used solely by Customer for Customer's internal use for Customer's own
benefit. The parties agree that they are independent contractors and that
this Agreement and relations between Linuxcare and Customer hereby
established do not constitute a, joint venture, agency or contract of
employment between them, or any other similar relationship. Neither party
has the right or authority to assume or create any obligation or
responsibility on behalf of the other. Any notice, report, approval or
consent required or permitted hereunder shall be in writing. No failure or
delay in exercising any right hereunder will operate as a waiver thereof,
nor will any partial exercise of any right or power hereunder preclude
further exercise. If any provision of this Agreement shall be adjudged by
any court of competent jurisdiction to be unenforceable or invalid, that
provision shall be limited or eliminated to the minimum extent necessary so
that this Agreement shall otherwise remain in full force and effect and
enforceable. Any waivers or amendments shall be effective only if made in
writing. This Agreement is the complete and exclusive statement of the
mutual understanding of the parties and supersedes and cancels all previous
written and oral agreements and communications relating to the subject
matter of this Agreement. The prevailing party in any action to enforce
this Agreement will be entitled to recover its attorney's fees and costs in
connection with such action.
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11. Governing Law and Jurisdiction. This Agreement which is in English, shall
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be interpreted in accordance with the commonly understood meaning of
the words and phrases hereof in the United States of America. Any dispute,
controversy or claim arising out of or relating to this Agreement or to a
breach thereof, including its interpretation, performance or termination,
shall be finally resolved by arbitration. The arbitration shall be
conducted in English and in accordance with the commercial rules of the
International Chamber of Commerce, which shall administer the arbitration
and act as appointing authority. The arbitration, including the rendering
of the award, shall take place in San Francisco, California which shall be
the exclusive forum for resolving such dispute, controversy or claim. For
the purposes of this arbitration, the provisions of this Agreement and all
rights and obligations thereunder shall be governed and construed in
accordance with the laws of the State of California. United States of
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America, without regard to the conflicts of laws provisions thereof. The
decision of the arbitrators shall be binding upon the parties hereto, and
the expense of the arbitration (including without limitation the award of
attorneys' fees to the prevailing party) shall be paid as the arbitrators
determine. The decision of the arbitrators shall be executory, and judgment
thereon may be entered by any court of competent jurisdiction.
Notwithstanding anything contained in this Paragraph, each party shall have
the right to institute judicial proceedings against the other party or
anyone acting by, through or under such other party in order to enforce the
instituting party's rights hereunder through reformation
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EXHIBIT B
STATEMENT OF WORK
CONTROL
Document ID DTTS SOW 1.0
Location /Documents/Linuxcare/DTTS/DTTS SOW 1.0.doc
Originator Xxx Xxxxxx
Issue Date 6/29/1999
Status Approved
Version 1.0
DISTRIBUTION
LINUXCARE XXX XXXXXX, XXX XXXXXX
DTT'S XXXXXXX XXXXXXX
VERSION MODIFIED BY DATE DESCRIPTION
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0.1 Xxx Xxxxxx 05/24/99 Draft Proposal
0.2 Xxx Xxxxxx 06/02/99 Content and Formatting changes
0.3 Xxx Xxxxxx 06/10/99 Changes as discussed with DTT'S
0.4 Xxx Xxxxxx 06/19/99 Changes as discussed with DTT'S
0.5 Xxx Xxxxxx 06/21/99 Final Draft for Approval
0.6 Xxx Xxxxxx 06/29/99 Modified Line 1 of section 4 at DTT'S request
1.0 Xxx Xxxxxx 07/07/99 Approved Final Version
Page 1 of 8
TABLE OF CONTENTS
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1 INTRODUCTION 3
2 RELATIONSHIP OBJECTIVES 4
2.1 SHORT TERM OBJECTIVES 4
2.2 LONG TERM OBJECTIVES 4
3 SERVICE PROPOSAL 5
3.1 SLA SERVICES 5
3.1.1 Hours of Operation: 5
3.1.2 Distribution: 5
3.1.3 Platforms: 5
3.1.4 Phone, Web, e-mail support: 5
3.1.5 Acknowledgment of incident: 5
3.1.6 Resolution or report: 5
3.1.7 First point of contact: 5
3.1.8 Assigned Support Engineer: 5
3.1.9 Dedicated Support Engineer: 6
3.1.10 Authorized customer contacts: 6
3.1.11 Telnet access to customer's system: 6
3.1.12 View Active Incident Status online: 6
3.1.13 Software updates: 6
3.1.14 Access to Script library: 6
3.1.15 Access to online configuration DB: 6
3.1.16 Pager notification service: 6
3.1.17 Nextel Instant connect dispatch service: 6
3.1.18 Peak season escalation of service: 6
3.1.19 On site support: 7
3.2 PROBLEM REPORTING PROCEDURES 7
3.3 SERVICE RESTRICTIONS 7
3.4 SLA SERVICE PERIOD AND RENEWAL 7
4 TRAINING 8
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1 INTRODUCTION
This Statement of Work ("SOW") serves to establish the framework of the
relationship between Linuxcare Inc. and Densa Techno Tokyo ("DTT'S") for
providing Linuxcare support services. These support services are to be used by
DTT'S both internally and externally through their support center in Akihabara.
This document is an addendum to the standard Linuxcare Master Service Agreement,
the terms of which are incorporated herein by reference ("Agreement").
This document is intended solely for DTT'S and Linuxcare and is not be
circulated outside of these organizations without written consent from Linuxcare
Inc.
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2 RELATIONSHIP OBJECTIVES
2.1 Short Term Objectives
DTT'S and Linuxcare shall undertake a 12 months trial composed of primarily
backline support for DTT'S Linux support center to be opened in Akihabara Japan
in June of 1999. During this period the companies intend to determine their
ability to cooperate in the Japanese market with the goal of promoting Linux
solutions in Japan. This is to be accomplished with the Linuxcare providing
fundamental backline support to DTT'S thereby allowing DTT'S to provide a
comprehensive support solution to Japanese companies which are beginning to
investigate the strengths of Linux and the unique opportunities which Linux
presents.
2.2 Long Term Objectives
DTT'S desires to become a Linuxcare Certified partner with the ability to offer
solutions across all lines of business currently being offered by Linuxcare. It
is projected that the strength and value of Linuxcare services coupled with the
strength of DTT'S in the Japanese market will produce a situation in which both
companies will enjoy significant gains. This relationship will entail base price
of becoming a Linuxcare Certified Solutions provider and will incorporate a
revenue sharing plan to be worked out upon evaluation of the short term trial
objectives defined above.
Assuming success of the trial in Tokyo DTT'S will expand services to other
companies within the Densa Techno Group throughout Japan. It is envisioned that
these companies will then investigate trial service periods with Linuxcare along
the same lines as defined in section 2.1 for DTT'S.
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3 SERVICE PROPOSAL
Linuxcare will use reasonable commercial efforts to provide an elevated level of
Silver SLA, which for purposes of this document has been deemed "Silver Plus"
Service Level Agreement ("SLA"). These services are to be used by DTT'S to
support Japan Linux users at their newly established Linux support facility in
Akihabara.
3.1 SLA Services
The Silver Plus SLA is unique to DTT'S and is based on a compromise of the
following Linuxcare standard Silver and Gold options. These services will be
used to reach the short term objectives of the business relationship with
Linuxcare and DTT'S as defined above (Ref. 2.1).
3.1.1 Hours of Operation:
9am - 6pm (JST) weekdays excluding national holidays
3.1.2 Distribution:
Distribution support is limited to Turbo Linux and Red Hat 5.2J and 6.0J as it
becomes available. (Note: Distribution interface is Japanese.)
3.1.3 PLATFORMS:
All major (include Alpha, Intel, MIPS, and SPARC)
3.1.4 PHONE, WEB, E-MAIL SUPPORT:
All 3 services will be available. (Note: Phone support will be frontline
Japanese support as rapidly as Linuxcare can staff its Japanese office, in the
meantime it is agreed that DTT'S and Linuxcare will work together to provide a
viable short term solution.)
3.1.5 ACKNOWLEDGMENT OF INCIDENT:
All incidents will be acknowledged within 3 business hours as defined by the
Hours of Operation (Ref. 3.1.1).
3.1.6 RESOLUTION OR REPORT:
Resolution or Report will be issued one business day as defined by the Hours of
Operation (Ref. 3.1.1).
3.1.7 FIRST POINT OF CONTACT:
Initially this is to be a level 1 engineer. As soon as a Linuxcare level 2
engineer is placed full time in Linuxcare's Japanese operations this will be
elevated to level 2 at no additional cost to DTT'S.
3.1.8 ASSIGNED SUPPORT ENGINEER:
This service option is not available for Silver Plus SLA customers.
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3.1.9 Dedicated Support Engineer:
This service option is not available for Silver Plus SLA customers.
3.1.10 AUTHORIZED CUSTOMER CONTACTS:
DTT'S will have 4 Authorized customer contacts. These are the individuals whom
Linuxcare will accept support calls from.
3.1.11 TELNET ACCESS TO CUSTOMER'S SYSTEM:
Telnet access into the Akihabara based servers however not into the DTT'S
customer's site.
3.1.12 VIEW ACTIVE INCIDENT STATUS ONLINE:
Detailed online incident reports will be provided for each DTT'S incident.
3.1.13 SOFTWARE UPDATES:
Software updates will be made available to DTT'S through the Linuxcare web pages
(xxxx://xxx.xxxxxxxxx.xxx).
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3.1.14 ACCESS TO SCRIPT LIBRARY:
Access to the Linuxcare Script Library will be made available to DTT'S through
the Linuxcare web pages (xxxx://xxx.xxxxxxxxx.xxx). These scripts are not to be
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released to DTT'S customers without written consent from Linuxcare for each
instance.
3.1.15 ACCESS TO ONLINE CONFIGURATION DB:
Access to the Linuxcare online configuration database will be made available to
DTT'S through the Linuxcare web pages (xxxx://xxx.xxxxxxxxx.xxx). This access is
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solely granted to DTT'S and is not to be released to DTT'S customers.
3.1.16 PAGER NOTIFICATION SERVICE:
This service option is not available for Silver Plus SLA customers.
3.1.17 NEXTEL INSTANT CONNECT DISPATCH SERVICE:
This service option is not available for Silver Plus SLA customers. (Note: This
is a radio dispatch service and is not available in Japan.)
3.1.18 PEAK SEASON ESCALATION OF SERVICE:
This service option is not available for Silver Plus SLA customers.
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3.1.19 ON SITE SUPPORT:
This service option is not available for Silver Plus SLA customers.
3.2 Problem reporting procedures
When DTT'S contacts Linuxcare with a problem report the following information is
required
1. Name of DTT'S engineer placing the call. This individual must be one
of the Authorized customer contacts (Ref. 3.1.10)
2. Name of individual and individual's company that logged the initial
call with DTT'S.
3. Description of the problem.
4. Description of the steps taken by DTT'S to resolve the problem
locally.
Linuxcare will track this information; DTT'S shall not purposely mislead
Linuxcare regarding any of these points.
3.3 Service Restrictions
The services provided by Linuxcare are to be used at DTT'S Akihabara support
center and are intended to allow for DTT'S to support external end users. This
contract does not make allowances for Linuxcare services to be used in selling
corporate Linux support in Japan.
DTT'S shall not:
* Sell Linux support packages to Japanese corporate customers without
written consent from Linuxcare for each sale.
* Make any additional or conflicting representations or warranties on
behalf of Linuxcare.
* Use the trademark Linuxcare name, logo, or catch phrase "At the
Center of Linux" without written consent from Linuxcare in each case.
3.4 SLA Service period and Renewal
The Trial SLA shall consist of 12 months of service or 375 Incidents, whichever
comes first, unless otherwise terminated under this Agreement. All SLA contracts
are self renewing however 2 months prior to expiration of existing SLA contracts
(or at 350 Incidents) DTT'S and Linuxcare will take steps to evaluate the
results of the previous year. This process will allow the companies to determine
the required SLA level for the upcoming year or take steps to strengthen the
relationship as defined in section 2.2 (Long Term Objectives) for the upcoming
year.
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4 TRAINING
Included in the price of the Linuxcare solution being provided to DTT'S is 2
weeks of training for 10 engineers, covering Linuxcare University courses 101,
201, & 301. These courses are to be conducted in Japan with DTT'S providing the
following:
1. A dedicated training room. This room must be allocated solely for
training, as having other events occurring at the same time will be a
distraction to the students and the trainer. The training room should
be equipped with a white board and pens as well as a projector.
2. Enough "Linux capable" computers for each student. Typically we
provide 1 DELL machine per student however since the course will be
at DTT'S location we will not be shipping our training machines
internationally. The hardware is to be used is at DTT'S discretion
however we must be sure that they are Linux capable. We also request
that these machines have network cards and ideally an isolated
network on which training can occur.
3. DTT'S must decide which distribution(s) they want to use for
training. We prefer to offer training across multiple distributions
to ensure that students come away with a greater appreciation of
Linux and not just an understanding of a single distribution.
(Suggested distributions are Turbo Linux and Red Hat 5.2J)
4. Copies of the distribution(s) DTT'S will use for training. As these
distributions are Japanese we would like to request this in advance
so that our instructor can at least familiarize himself with the
Japanese front end.
5. Interpreter. This cost is to be borne by DTT'S so it is our
recommendation that DTT'S provide the interpreter. If you are not
able to do this we need enough notice to hire a local interpreter in
Japan to provide this service.
The cost of sending training and support staff for this training will be billed
to DTT'S. These costs typically include but are not limited to the following:
1. Airfare - Linuxcare policy is business class for flights over 7
hours.
2. Hotel - Linuxcare representatives in Japan stay in the Ebisu Westin
hotel. This is also close to DTT'S training facilities making this
hotel an ideal choice.
3. Meals.
4. Transit - Any travel required by Linuxcare staff to and from training
and meetings with DTT'S will be incurred by DTT'S.
A minimum advance notice of 3 weeks will be required to allow Linuxcare to
adequately schedule and prepare for these training courses.
Page 8 of 8
