EXHIBIT 4(a)5
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
THE `[**]' SYMBOL INDICATES THAT INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2 AND THAT
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO SUCH OMITTED PORTIONS.
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
SERVICES AGREEMENT
FOR HP-OMS OPERATIONS SERVICES
BETWEEN
TECHNOMATIX LTD
AND
HP-OMS-COMPAQ (ISRAEL) LTD
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SERVICES AGREEMENT
FOR HP-OMS OPERATIONS SERVICES
THIS SERVICES AGREEMENT FOR HP-OMS OPERATIONS SERVICES is entered into as of
this 30th day of October 2003, by and between HP-OMS (ISRAEL) LTD., a limited
liability company organized and existing under the laws of Israel, having its
registered office at 9 Ha'Dafna St. Ra'anana ("HP-OMS") and TECNOMATIX LTD., a
limited liability company organized and existing under the laws of Israel,
having its registered office at 00 Xxxxxxx Xxxxxx, Xxxxxxx Pituach, Israel (the
"CUSTOMER").
WHEREAS, the Customer wishes to purchase from HP-OMS and HP-OMS wishes to
render to the Customer certain global IT outsourcing services, subject
to the terms and conditions hereinafter set forth;
WHEREAS, the parties through this Agreement desire to commence a strategic
relationship, as more particularly set out below; and
WHEREAS, in connection with the provision of such services, the Parties have
also entered into that certain Employee Transfer Agreement, attached
to this Agreement as Exhibit F.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth in this Agreement, the Parties hereto agree as follows:
1. DEFINITIONS
As used in this Agreement, unless expressly otherwise stated or evident in the
context, the following terms shall have the following meanings, the singular
(where appropriate) shall include the plural and vice versa and references to
Exhibits and Sections shall mean Exhibits and Sections of this Agreement.
1.1 "ADD-ON ASSETS" means both the Purchased Add-On Assets and the Leased
Add-On Assets.
1.2 "AFFILIATE" means any entity Controlling, Controlled by, or under common
Control with HP-OMS or Customer, as the case may be.
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1.3 "AGREEMENT" means the terms and conditions of this Services Agreement
for HP-OMS Operations Services, including (unless otherwise stated)
all Exhibits and their respective Appendixes.
1.4 "CHANGE REQUEST" has the meaning set out in Exhibit B [Statement of
Work].
1.5 "COMMENCEMENT DATE" means the first day of the month which follows sixty
(60) days from the Effective Date, upon which date HP-OMS shall
commence the provision of the Services in accordance with this
Agreement, and which more specifically designates the launch of the
Transition and Stabilization Phases.
1.6 "CONFIDENTIAL INFORMATION" has the meaning set out in Section 17.1
(CONFIDENTIAL INFORMATION).
1.7 "CONTROL" and its correlative meanings, "Controlling", "Controlled by"
and under common Control with mean the legal, beneficial or equitable
ownership, directly or indirectly, of more than fifty percent (50%) of
the aggregate of all voting equity interests in an entity.
1.8 "CUSTOMER" means Tecnomatix Ltd.
1.9 "CUSTOMER COMPETITOR" means the list of companies set out in Exhibit J
[Customer Competitors], which list may be updated from time to time by
Customer, with the names of companies who compete with Customer in the
same industry in which Customer operates, by notice in writing to
HP-OMS.
1.10 "CUSTOMER CONTRACTORS" means third party contractors, vendors, agents,
representatives, and consultants selected and retained by Customer.
1.11 "CUSTOMER DATA" means any information contained in the Customer
Databases, and any derivatives resulting therefrom.
1.12 "CUSTOMER DATABASE" means any database at any time established (whether
in magnetic, paper or other form) by, on behalf of, or at the
direction of, the Customer, and including any customized database
established by HP-OMS in performance of this Agreement, which contains
information relating to the business or affairs of the Customer, its
employees or any third party.
1.13 "CUSTOMER EMPLOYEES" means the employees employed by the Customer, and
Customer Contractors who is given a user name in the Tecnomatix WAN.
For the avoidance of doubt, Customer Employees exclude HP-OMS
Personnel. .
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1.14 "CUSTOMER PRE-COMMENCEMENT OWNED MATERIALS" has the meaning set out in
Section 15.1 (PRE-EXISTING MATERIALS).
1.15 "CUSTOMER SITES" means any office, branch, site, location or other
facilities which are owned, leased, occupied or used by Customer and
to which it is necessary for HP-OMS to obtain access in order to
provide the Services or carry out any HP-OMS obligation in relation to
them, and as set out in Exhibit H - [Customer Sites]. Any addition or
reduction to this list is subject to the change management process set
out in and Exhibit E - [Pricing and Pricing Principles].
1.16 "CUSTOMER SOFTWARE" means Third Party Software licensed to and in use by
the Customer prior to the Commencement Date, and which are included
within the categories identified in Exhibit I - [HP-OMS Software and
Customer Software Categories].
1.17 "DELIVERABLES" has the meaning set out in Section 13.1 (TESTING)
1.18 "DEVELOPED MATERIALS" means any Materials or modifications, enhancements
or derivative works thereof, developed by or on behalf of HP-OMS for
Customer in connection with or as part of the Services.
1.19 "DISPUTE RESOLUTION PROCESS" means the process for dispute resolution set
out in Section 21.7 (DISPUTE RESOLUTION PROCESS).
1.20 "DUE DILIGENCE PROCESS" means the due diligence process entered into and
completed by the Parties from July 1, 2002 to December 31, 2002 in
connection with this Agreement.
1.21 "EFFECTIVE DATE" has the meaning set out in Section 2.5 (CONDITIONS
PRECEDENT TO EFFECTIVE DATE).
1.22 "EMPLOYEE TRANSFER AGREEMENT" means the employee transfer agreement
between the parties, attached hereto as Exhibit F.
1.23 "GENERAL SETUP COSTS" means the one-time setup cost set out in Exhibit E
[Pricing and Pricing Principles], for HP-OMS' setup and installation
of utilities, equipment, and infrastructure.
1.24 "GOVERNMENT APPROVAL" has the meaning set out in Section 2.5 (CONDITIONS
PRECEDENT TO EFFECTIVE DATE).
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1.25 "HARDWARE" means computing, networking and/or communications equipment or
hardware, including, without limitation, (i) midrange, storage
systems, server and distributed computing equipment and associated
attachments, features, accessories, peripheral devices, and cabling,
(ii) personal computers, laptop computers and workstations and
associated attachments, features, accessories, peripheral devices, and
cabling, and (iii) data telecommunications and network equipment and
associated attachments, features, accessories, peripheral devices, and
cabling.
1.26 "HP-OMS HARDWARE" means all Hardware or equipment in use by the Customer,
as well as all Hardware included within the Add-On Assets, Transition
Project Assets, Refreshed Assets, New Customer Employee Assets, Right
to Use Assets and any Third Party Contracts, and all other Hardware
used by HP-OMS in performing the Services, or which is the subject of
the Services under this Agreement.
1.27 "HP-OMS PERSONNEL" means those employees and Subcontractors of HP-OMS and
of HP-OMS Affiliates who perform any Services, including the
Transitioned Employees, subject to and in accordance with this
Agreement.
1.28 "HP-OMS SOFTWARE" means (i) all Third Party Software licensed to and in
use by the Customer within the categories identified in Exhibit I
[HP-OMS Software and Customer Software Categories], (ii) all Third
Party Software included within the Add-On Assets, Transition Project
Assets, Refreshed Assets, New Customer Employee Assets any Third Party
Contracts, and Right to Use Assets; and (iii) all other Software owned
or licensed by HP-OMS included within the categories identified in
Exhibit I [HP-OMS Software and Customer Software Categories], to the
extent such other Software is used by HP-OMS in performing the
Services, or which is the subject of the Services, under this
Agreement (such other Software hereinafter, the "OTHER HP-OMS
SOFTWARE").
1.29 "INITIAL TERM" has the meaning set out in Section 20.1 (TERM).
1.30 "INTELLECTUAL PROPERTY RIGHTS" includes copyrights, patents, trademarks,
service marks, design rights, trade secrets and all other proprietary
rights whether registered or unregistered.
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1.31 "KEY PERSONNEL" means the HP-OMS Personnel designated in Exhibit G
[Project Staff and Key Contacts] as Key Personnel, which list may
change from time to time by mutual written agreement of the Parties;
provided that the number of Key Personnel shall not be less than three
(3) personnel providing Services under this Agreement.
1.32 "LEASED ADD-ON ASSETS" means all Hardware and Software licenses (excluding
Customer Software licenses) leased from HP-OMS, or any entity
designated by it, pursuant to the change management process set out in
Section 11 or similar process, the support and maintenance of which
will be included in the price of the lease and the license,
respectively, in accordance with Exhibit E.
1.33 "LOSSES" means all liabilities, damages, fines, penalties and claims
(including taxes), and all related costs and expenses (including
reasonable legal fees and disbursements and costs of investigation,
litigation, settlement, judgment, interest and penalties).
1.34 "MATERIALS" means, collectively, Software, source code literary works,
other works of authorship, specifications, design documents and
analyses, processes, procedures methodologies, programs, program
listings, documentation, reports, drawings, databases and similar work
product.
1.35 "MCC" means the Monitoring and Control Center, as more specifically
described in Exhibit D.
1.36 "GENERAL SETUP ASSETS" has the meaning set out in Exhibit E [Pricing and
Pricing Principles].
1.37 "MCC GENERAL SETUP COSTS" means the one-time, fixed setup cost set out in
Exhibit E [Pricing and Pricing Principles], Appendix E for HP-OMS'
setup and installation of the MCC General Setup Assets.
1.38 "NEW CUSTOMER EMPLOYEE ASSETS" means Hardware and Software, which HP-OMS
shall purchase and license, respectively, and provide to Customer,
upon receipt of Customer notice that it has increased the number of
Customer Employees, in accordance with Exhibits B and C.
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1.39 "OPERATIONS SERVICES" or "SERVICES" means collectively the services,
functions and responsibilities described in the Agreement as a
responsibility of HP-OMS and to be provided by HP-OMS for the benefit
of Customer, Customer Affiliates, and Customer Employees, whether
located at the Customer Sites or otherwise, all pursuant to this
Agreement and as they may be supplemented, enhanced, modified or
replaced during the Term in accordance with this Agreement, including,
without limitation: (i) the services described in Exhibit A -
[Services Description], Exhibit B - [Statement of Work] and Exhibit C
- [Service Level Agreement]; (ii) the Transition and Stabilization
Services described in Exhibit D; (iii) HP-OMS responsibilities with
respect to the supported Software described in Exhibit I [HP-OMS
Software and Customer Software Categories]; (iv) the Termination
Assistance Services described in Exhibit M [Termination Assistance];
and (v) any services provided pursuant to Section 11 (CHANGE
MANAGEMENT).
1.40 "OTHER HP-OMS SOFTWARE" has the meaning set out in the definition of
HP-OMS Software.
1.41 "PARTIES" shall mean both Customer and HP-OMS.
1.42 "PURCHASED ADD-ON ASSETS" means all Hardware and Software licenses
(excluding Customer Software licenses) purchased by Customer from
HP-OMS or a third party, the support and maintenance of which will be
added to the Target Price, in accordance with the change management
process set out in Section 11 or similar process.
1.43 "REFRESHED ASSETS" means Hardware and Software licenses (excluding
Customer Software licenses) purchased by HP-OMS pursuant to the
Technology Refresh Program.
1.44 "REQUIRED CONSENTS" means any consents, licenses or approvals required in
accordance with Section 7 (REQUIRED CONSENTS).
1.45 "RSC" means Regional Support Center, as more specifically described in
Exhibit D.
1.46 "RIGHT TO USE ASSETS" has the meaning set out in Exhibit E [Pricing and
Pricing Principles].
1.47 "SERVICE LEVEL CREDITS" has the meaning set out in Section 4.2(b) (SERVICE
LEVEL CREDITS).
1.48 "SERVICE LEVELS" means the predetermined, objective performance criteria
and services levels for delivery of Operations Services, as described
in Exhibits A (SERVICES DESCRIPTION), B (STATEMENT OF WORK) and C
(SERVICE LEVEL AGREEMENT) of this Agreement.
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1.49 "SOFTWARE" means one or more computer programs capable of operating on a
controller, processor or other hardware product, including
documentation relating thereto, the applicable source or object codes,
all updates and new releases thereof.
1.50 "HP-OMS SUBCONTRACTORS" means contractors, and consultants selected and
retained by HP-OMS.
1.51 "TARGET PRICE" means the price payable by Customer for performing the
Services, as specified (and adjusted) in accordance with Exhibit E -
[Pricing and Pricing Principles].
1.52 "TECHNOLOGY REFRESH PROGRAM" means the technology refresh program outlined
in Section 2.11 of Exhibit C, Appendix A.
1.53 "TERM" means collectively, the Initial Term the Extended Term and any
Termination Assistance Period.
1.54 "TERMINATION ASSETS" means, collectively, the Leased Add-On Assets,
Transition Project Assets, Refreshed Assets, and New Customer Employee
Assets and all related Third Party Contracts to which HP-OMS is a
party immediately prior to expiration or earlier termination of this
Agreement as permitted hereunder.
1.55 "TERMINATION ASSISTANCE PERIOD" has the meaning set out in Section 20.7(a)
(TERMINATION ASSISTANCE SERVICES)
1.56 "TERMINATION ASSISTANCE SERVICES" means the services provided by HP-OMS
at the Customer's request, after expiry or termination of this
Agreement for any reason to facilitate the orderly transfer of the
Services to Customer or to an alternative service provider nominated
by Customer, as set out in Section 20.7 (TERMINATION ASSISTANCE
SERVICES) herein.
1.57 "TERMINATION FEES" means the appropriate fees payable by Customer in the
case of early termination, as detailed in Exhibit E [Pricing and
Pricing Principles].
1.58 "THIRD PARTY CONTRACTS" means all agreements (including Software licenses,
Hardware leases and support and maintenance agreements) between third
parties and Customer or third parties and HP-OMS that have been or
will be used to provide, or which are the subject of, the Services, to
the extent a Party has financial or operational responsibility for
such contracts under this Agreement. Third Party Contracts shall
include, without limitation, (i) all such agreements transferred or
assigned to HP-OMS by agreement of the parties, as listed in Exhibits
O1 and O2, which Exhibits shall be finalized by the parties as of the
Commencement Date; (ii) all such agreements which are not transferred
or assigned to HP-OMS, but under which HP-OMS shall act as Customer's
agent, as listed in Exhibit O2, which Exhibit shall be finalized by
the parties as of the Commencement Date; and (iii) Post Due
Diligence-Pre Commencement Date Third Party Contracts (defined in
Section 3.1 (b); and (iv) those third party agreements entered into by
HP-OMS following the Commencement Date.
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1.59 "THIRD PARTY SOFTWARE" means all Software licensed under, or which is the
subject of, the applicable Third Party Contract.
1.60 "TRANSITION AND STABILIZATION PHASES" means the transition and
stabilization phases of the Services, commencing as of the
Commencement Date and expiring 12:00:01 a.m., Israel time, ten (10)
months following the Commencement Date, as specified in Section 12
(TRANSITION AND STABILIZATION PHASES), unless expressly extended in
writing by Customer.
1.61 "TRANSITION AND STABILIZATION SERVICES" means the Services provided by
HP-OMS during the Transition Period, in accordance with Exhibit D
[Transition and Stabilization] and this Agreement.
1.62 "TRANSITION MILESTONES" has the meaning set out in Section 12.1
(TRANSITION PLAN).
1.63 "TRANSITION PLAN" has the meaning set out in Section 12.1 (TRANSITION
PLAN).
1.64 "TRANSITION PROJECT ASSETS" means Hardware and Software, including without
limitation the MCC General Setup Assets, the "Worldwide Network
Solution" deliverables and the technology gap projects, described in
Exhibit D, which shall be delivered and implemented at HP-OMS premises
or sites and at the appropriate Customer Sites during the Transition
and Stabilization Phases, in accordance with Exhibit D.
1.65 "TRANSITIONED EMPLOYEES" means the employees of Customer who accept
HP-OMS' offer of employment and become employed by HP-OMS pursuant to
the Employee Transfer Agreement (Exhibit F) and subject to the terms
and conditions of this Agreement. Upon being employed by HP-OMS, such
Transitioned Employees shall be deemed to be HP-OMS Personnel.
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2. SCOPE
2.1 PURPOSES. As part of organizational changes, and with the purpose of
decreasing its IT expenditures around the world while improving and
enhancing the internal IT environment and level of operation services,
Customer has decided to transfer the responsibility and the management
of its IT operations at the Customer Sites to HP-OMS, which will be
performed under the supervision of the Customer.
2.2 SERVICES; EMPLOYEE TRANSFER. HP-OMS will provide the Customer with
comprehensive outsourcing Services, including employee transfer, as
defined in the Employee Transfer Agreement, and the provision of IT
Services as more specifically detailed in this Agreement.
2.3 ELIGIBLE RECIPIENTS OF SERVICES. Throughout this Agreement, the Services
shall be provided to Customer for the benefit of Customer and its
Affiliates (including entities which may become Affiliates after the
Commencement Date). For the avoidance of doubt, Customer shall be
responsible for its Affiliates' compliance with Customer's obligations
hereunder; however, notwithstanding anything in the Agreement to the
contrary, Customer Affiliates shall have no liability under this
Agreement.
2.4 STRATEGIC PARTNERSHIP. The parties acknowledge and agree that this
Agreement reflects a strategic relationship between HP-OMS and the
Customer, in which the business successes of one party will have
corresponding benefits to the other. Accordingly, HP-OMS shall make
best efforts to assist Customer in the development of its MPM
business; each party will appoint a program manager dedicated to
oversee and manage such assistance, and a representative of the senior
management of each party shall meet on a quarterly basis after the
Commencement Date to monitor the progress of this strategic
relationship.
2.5 CONDITIONS PRECEDENT TO EFFECTIVE DATE.
(a) The effective date of this Agreement shall be the date on which both
of the following conditions have been satisfied (the "EFFECTIVE
DATE"): (i) Customer has obtained written approval from both the
Office of the Chief Scientist of the Israeli Ministry of Industry and
Trade and the Israel Investment Center to the mechanism set out in the
Services Agreement, including the applicable exhibits thereto, for
Customer's investment in Hardware and Software ("GOVERNMENT
APPROVAL"); and (ii) Customer has obtained approval from its board of
directors to the signing of this Agreement, which approval is
scheduled to occur on or before December 8, 2003; and HP-OMS has
obtained the approval of HP Corporate, which approval is scheduled to
occur on or before December 8, 2003.
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(b) Without derogating from subsection (a) above, Customer and HP-OMS
shall cooperate with each other to achieve their mutual goal of
obtaining Government Approval as soon as possible, but not later than
January 1, 2004. In the event that the Customer fails to obtain
Government Approval by January 1, 2004, the parties, in good faith,
shall use their best commercial efforts to resolve the matter to
obtain such approval on an expedited basis.
3. HP-OMS' OBLIGATIONS
3.1 SERVICES. In consideration for the Target Price, HP-OMS shall perform
the Operations Services in accordance with the terms and conditions of
this Agreement and for the Term of this Agreement beginning as of the
Commencement Date.
(a) AGREEMENT AND EXHIBITS. The Services shall consist of the services,
functions and responsibilities described in this Agreement and in all
Exhibits thereto, as they may evolve during the Term of this Agreement
or be supplemented, enhanced, modified or replaced in accordance with
this Agreement.
(b) INCLUDED SERVICES. If any services, functions or responsibilities not
specifically described in this Agreement (a) are an inherent and
necessary part of the Services or required for proper performance or
provision of the Services in accordance with this Agreement; or (b)
were performed preceding the Commencement Date by or for Customer
(provided that HP-OMS had knowledge or notice, obtained during the Due
Diligence Period, of such services, functions or responsibilities -
e.g., where reflected or a cost or amount allocated in Customer's or
its Affiliates' books or records), then they shall be deemed to be
included within the scope of the Services to be delivered for the
Target Price, as if such services, functions or responsibilities were
specifically described in this Agreement (collectively, "INCLUDED
SERVICES"). Notwithstanding the foregoing, Included Services shall
also mean operational and financial responsibility for services,
functions and responsibilities not specifically described in this
Agreement but included under Third Party Contracts between Customer
and third parties, signed after the last day of the Due Diligence
Period (i.e., after December 31, 2002) but prior to the Commencement
Date ("POST DUE DILIGENCE-PRE COMMENCEMENT DATE THIRD PARTY
CONTRACTS"); provided, however that HP-OMS shall have financial
responsibility for such Post Due Diligence-Pre Commencement Date Third
Party Contracts only from the Commencement Date until the end of the
Transition and Stabilization Phases, after which time Customer shall
bear such financial responsibility. In addition, if requested by
HP-OMS, Customer shall terminate such Post Due Diligence-Pre
Commencement Date Third Party Contracts, where early termination
thereunder is permitted without penalty, provided that HP-OMS
continues to bear throughout the Term operational responsibility for
the services and functions otherwise performed under such terminated
contracts. Any dispute between the Parties as to the scope of Services
shall be resolved in accordance with Section 21.7 (DISPUTE RESOLUTION
PROCESS).
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3.2 CHANGES TO THE SERVICES. Except as may be necessary on an emergency basis
to maintain the continuity of the Services, HP-OMS may not, without
Customer's consent, modify (a) the composition or nature of the
Services or (b) the manner in which the Services are provided or
delivered if such modification(s) would have an adverse effect on the
business of Customer.
4. SERVICE LEVELS
4.1 INCLUDED SERVICES. HP-OMS shall perform Included Services at the same
levels of accuracy, quality, completeness, timeliness, responsiveness
and productivity that apply to Services which are specifically
described in the Agreement, as would be determined (a) by a reasonable
person or (b) by reference to the HP IT Service Management Reference
Model.
4.2 COMPLIANCE WITH SERVICE LEVELS.
(a) ULTIMATE HP-OMS RESPONSIBILITY. HP-OMS shall provide the Services at
all Customer Sites in accordance with the Service Levels, commencing
on the date which is ten (10) calendar months after the Commencement
Date. HP-OMS shall be responsible for meeting or exceeding the
applicable Service Levels even where doing so is dependent on the
provision of Services by HP-OMS Subcontractors.
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(b) SERVICE LEVEL CREDITS. HP-OMS recognizes that Customer is paying
HP-OMS to deliver the Services at specified Service Levels. If HP-OMS
fails to meet such Service Levels, then HP-OMS shall pay or credit to
Customer the performance credits specified in Exhibit C ("SERVICE
LEVEL CREDITS") in recognition of the diminished value of the Services
resulting from HP-OMS' failure to meet the agreed upon level of
performance, and not as a penalty. The Service Level Credit
reimbursement will be done according to the mechanism detailed in
Exhibit C section 1.6 (G) Service Level Credits shall not be HP-OMS'
sole liability or Customer's exclusive remedy for failure to meet the
Service Levels.
4.3 PROBLEM ANALYSIS. If HP-OMS fails to provide Services in accordance with
the Service Levels and this Agreement, HP-OMS shall (after restoring
service or otherwise resolving any immediate problem) (i) promptly
investigate and report on the causes of the problem; (ii) provide a
root cause analysis of such failure (i.e., diagnosing the problem at
the lowest reasonable level) ("ROOT CAUSE ANALYSIS") as soon as
practicable, after such failure or Customer's request (iii) use all
commercially reasonable efforts to implement remedial action and begin
meeting the Service Levels as soon as practicable; (iv) advise
Customer of the status of remedial efforts being undertaken with
respect to such problem; and (v) demonstrate to Customer's reasonable
satisfaction that the causes of such problem have been or will be
corrected on a permanent basis. HP-OMS shall use all commercially
reasonable efforts to complete the Root Cause Analysis within fifteen
(15) working days; provided that, if it is not capable of being
completed within fifteen (15) working days using reasonable diligence,
HP-OMS shall complete such Root Cause Analysis as quickly as possible
and shall notify Customer prior to the end of the initial fifteen (15)
working day period as to the status of the Root Cause Analysis and the
estimated completion date. At any event, it is not intended that a
protracted Root Cause Analysis should unduly delay prompt resolution
of Service Level issues, including allocation of Service Level
Credits. HP-OMS shall provide the results of the Root Cause Analysis
to Customer in writing or comparable electronic media.
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4.4 MONITORING AND CONTROL; HELP DESK AND ASSET MANAGEMENT SYSTEMS. As part
of the Services, HP-OMS shall implement the monitoring and control,
help desk and asset management systems, tools and procedures, all as
set forth in Exhibits A, B and D, to measure and report on HP-OMS'
performance of the Services against the applicable Service Levels.
Customer or its designee shall have the right to audit all such
systems. HP-OMS shall provide Customer with on-line access (in
"read-only" mode) to up-to-date problem management data and other data
regarding the status of service problems, service requests and user
inquiries. HP-OMS also shall provide Customer with access to the data
used by HP-OMS to calculate its performance against the Service Levels
and the measurement and monitoring tools and procedures utilized by
HP-OMS to generate such data for purposes of audit and verification.
Customer shall not be required to pay for such measurement and
monitoring tools or the resource utilization associated with their
use.
4.5 NOTICE OF DEFAULT. If HP-OMS becomes aware of any failure by HP-OMS to
comply with its obligations under this Agreement or any other
situation (i) that has impacted or reasonably could impact the
maintenance of Customer's financial integrity or internal controls,
the accuracy of Customer's financial, accounting or human resources
records and reports or compliance with Customer's strategic decisions,
or (ii) that has had or reasonably could have any other material
adverse impact on the Services in question or the impacted business
operations of Customer, then HP-OMS shall immediately inform Customer
in writing of such situation and the impact or expected impact and
HP-OMS and Customer shall meet to formulate an action plan to minimize
or eliminate the impact of such situation.
4.6 REPORTS. As part of the Services HP-OMS shall provide monthly performance
reports to Customer in a form to be agreed upon between the Parties,
in accordance with Exhibit B.
4.7 BENCHMARKING OF SERVICE LEVELS.
(a) Customer may initiate a single benchmarking survey at any time during
the Initial Term following the second anniversary of the Commencement
Date. The purpose of such benchmarking survey is to ensure that HP-OMS
provides Customer with the technology and Services Levels equal to or
greater than other organizations receiving similar services and other
organizations in similar industries.
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(b) The selection of the agent to conduct such benchmarking survey will be
agreed upon by the Parties, and if the Parties are not able to agree
on the identity of such agent within thirty (30) days, the Customer's
independent auditor shall select the third party expert to conduct
such surveys and the methodology of such surveys.
(c) All costs incurred to conduct such benchmarking study will be borne by
Customer.
(d) Following receipt of the results of the benchmarking survey, and if
requested by Customer, HP-OMS will provide the Customer, within sixty
(60) days of study completion, with an action plan and schedule for
HP-OMS to implement the survey results with respect to the technology
or Service Levels for the Customer's approval, in accordance with the
change management process set out in Section 11; provided, that if
Customer approves such plan and schedule, (i) the Target Price shall
not be reduced as a result thereof; (ii) Costs and expenses relating
to addition of items which are not specified as in the scope of the
Services hereto will be fully borne and paid by Customer; (iii) HP-OMS
shall only be required by pay fifty percent (50%) of the fees and
costs that Customer would otherwise be responsible for paying under
the change management process, relating to changes of items which are
specified as in the scope of the Services..
5. HP-OMS PERSONNEL
5.1 QUALIFICATIONS OF HP-OMS PERSONNEL; HP RESPONSIBILITIES.
(a) HP-OMS may select qualified and reputable HP-OMS Personnel to fulfill
any of HP-OMS' obligations; provided, however, that HP-OMS will use
only HP-OMS Personnel that have the requisite technical skills,
competence, ability and qualifications to perform their portion(s) of
HP-OMS' obligations in accordance with the Services standard set out
in Section 14.1(a) (SERVICES STANDARD). Without limiting the
generality of the foregoing, HP-OMS shall ensure that all HP-OMS
Personnel performing Services for Customer shall be properly educated
and trained for the Services they are to perform, including but not
limited training in connection with Customer's special requirements
and internal IT procedures. In addition, HP-OMS shall assign (or cause
to be assigned) sufficient HP-OMS Personnel to provide the Services in
accordance with this Agreement. Prior to HP-OMS' use of any HP-OMS
Personnel, HP-OMS shall provide Customer the resumes of individual
HP-OMS Personnel, which resumes shall, among other things, include
specific information describing the requisite technical skills of such
HP-OMS Personnel.
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(b) Subject to Section 5.2 (CUSTOMER RIGHTS CONCERNING KEY PERSONNEL;
REPLACEMENT OF HP-OMS PERSONNEL), where HP-OMS Subcontractors are to
be used by HP-OMS for the provision of the Services, HP-OMS shall give
Customer reasonable prior notice specifying the components of the
Services affected, the scope of the proposed subcontract, and the
identity and qualifications of the proposed Subcontractor.
(c) HP-OMS shall at all times be responsible for any failure by any HP-OMS
Personnel to perform in accordance with this Agreement or to comply
with any duties or obligations imposed on HP-OMS under this Agreement
to the same extent as if such failure to perform or comply was
committed by HP-OMS or HP-OMS employees. HP-OMS shall guarantee the
performance of all such HP-OMS Personnel providing any of the Services
hereunder. HP-OMS shall be Customer's sole point of contact regarding
the Services, including with respect to payment.
5.2 CUSTOMER RIGHTS CONCERNING KEY PERSONNEL; REPLACEMENT OF HP-OMS
PERSONNEL. Throughout the Term: (a) HP-OMS shall use in the
performance of the Services and shall not replace or contract with any
additional Key Personnel or any communication or security Customer
Contractors utilized by Customer to provide the services (included
within the Services) prior to the Commencement Date under Third Party
Contracts, without receiving Customer's prior written approval; (b) at
Customer's request (for reasonable reasons, including without
limitation, those specified in Exhibit B, Appendix G), HP-OMS shall
promptly replace or cease to negotiate or contract with any HP-OMS
Personnel (or prospective HP-OMS Personnel) for the provision of the
Services; and (c) all other HP-OMS Personnel, shall not be replaced by
HP-OMS within the first twelve (12) months of engagement of such
HP-OMS Personnel in the provision of Services without Customer's prior
written approval, not to be unreasonably withheld.
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5.3 REQUESTED REPLACEMENT BY CUSTOMER. In the event that Customer determines
in accordance with Section 5.2(b) (CUSTOMER RIGHTS CONCERNING KEY
PERSONNEL; REPLACEMENT OF HP-OMS PERSONNEL) that a member of HP-OMS
Personnel should be replaced, then Customer shall give HP-OMS notice
to that effect requesting that such HP-OMS Personnel be replaced.
HP-OMS shall, upon Customer's request, replace as promptly as possible
such HP-OMS Personnel with an individual of suitable ability and
qualifications, without cost to Customer. Nothing in this provision
shall operate or be construed to limit HP-OMS' responsibility for the
acts or omissions of the HP-OMS Personnel.
5.4 MANAGEMENT OF HP-OMS PERSONNEL. Subject to Section 5.2 (CUSTOMER RIGHTS
CONCERNING KEY PERSONNEL; REPLACEMENT OF HP-OMS PERSONNEL):
(a) HP-OMS shall appoint a representative to supervise and coordinate
HP-OMS' performance of obligations, which shall be identified in
Exhibit G - [Project Staff and Key Personnel] ("HP-OMS Project
Manager"). The HP-OMS Project Manager shall be deemed one of the Key
Personnel and shall be located in Israel. HP-OMS shall not reassign or
replace the HP-OMS Project Manager during the first two (2) years of
his or her assignment as the HP-OMS Project Manager.
(b) HP-OMS will perform the Services using a dedicated list of people
detailed in E Exhibit G - [Project Staff and Key Personnel]. Any
change or addition to this list will be communicated to Customer's
Project Manager.
5.5 KEY PERSONNEL.
(a) APPROVAL OF HP-OMS' KEY PERSONNEL.
(i) The initial list of Key Personnel is set forth in Exhibit G.
Such list may be modified by the mutual written agreement of the
Parties. Neither Party will unreasonably withhold agreement to add or
substitute a person onto Exhibit G.
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(ii) HP-OMS shall notify Customer of HP-OMS Personnel that HP-OMS
suggests should be added to Exhibit G. HP-OMS shall introduce the
individual to the appropriate Customer representatives, shall provide
reasonable opportunity for Customer representatives to interview the
individual, and shall provide Customer with a resume and such other
information about the individual as may be reasonably requested by
Customer. If Customer objects to the proposed assignment, the Parties
shall attempt in good faith to resolve Customer's concerns on a
mutually agreeable basis. If the Parties have not been able to resolve
Customer's concerns within five (5) working days of Customer
communicating its concerns, HP-OMS shall not assign the individual to
that position and shall propose to Customer the assignment of another
individual of suitable ability and qualifications.
(b) CONTINUITY OF KEY PERSONNEL. HP-OMS shall cause each of the Key
Personnel to devote full time and effort to the provision of Services
under this Agreement. In the event of the voluntary resignation,
involuntary termination for cause, illness, disability or death of one
of its Key Personnel, HP-OMS shall (i) give Customer as much notice as
reasonably possible of such development, and (ii) expeditiously
identify and obtain Customer's approval of a suitable replacement.
Subject to Section 5.2 (CUSTOMER RIGHTS CONCERNING KEY PERSONNEL;
REPLACEMENT OF HP-OMS PERSONNEL), HP-OMS shall transfer, reassign or
remove one of its Key Personnel only after (i) giving Customer at
least ninety (90) days prior notice of such action, (ii) identifying a
suitable replacement in accordance with Section 5.5(a)(ii) (APPROVAL
OF HP-OMS' KEY PERSONNEL), and (iii) demonstrating to Customer's
reasonable satisfaction that such action will not have an adverse
impact on HP-OMS' performance of its obligations under this Agreement.
Subject to Section 5.2 (CUSTOMER RIGHTS CONCERNING KEY PERSONNEL;
REPLACEMENT OF HP-OMS PERSONNEL), under no circumstances shall HP-OMS
transfer, reassign or remove more than one third (1/3) of the Key
Personnel in any twelve (12) month period.
5.6 HP-OMS PERSONNEL NOT CUSTOMER EMPLOYEES. Except as otherwise expressly set
forth in this Agreement, the Parties intend to create an
independent contractor relationship and nothing in this Agreement
shall operate or be construed as making Customer or HP-OMS partners,
joint venturers, principals, joint employers, co-employers, agents or
employees of or with the other. No officer, director, employee, agent,
Affiliate, contractor or subcontractor retained by HP-OMS to perform
work on Customer's behalf hereunder shall be deemed to be an officer,
director, employee, agent, Affiliate, contractor or subcontractor of
Customer for any purpose. No officer, director, employee, agent,
Affiliate, or Contractor retained by Customer to perform work on
Customer's behalf with which HP-OMS cooperates hereunder shall be
deemed to be an officer, director, employee, agent, Affiliate,
contractor or subcontractor of HP-OMS for any purpose. HP-OMS, not
Customer, has the right, power, authority and duty to supervise and
direct the activities of the HP-OMS Personnel and to compensate such
HP-OMS Personnel for any work performed by them on Customer's behalf
pursuant to this Agreement. HP-OMS, and not Customer, shall be
responsible and therefore solely liable for all acts and omissions of
HP-OMS Personnel. Customer, not HP-OMS, has the right, power,
authority and duty to supervise and direct the activities of the
Customer's Personnel and to compensate such Customer's Personnel for
any work performed by them. Customer, and not HP-OMS, shall be
responsible and therefore solely liable for all acts and omissions of
Customer Employees.
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5.7 RETENTION OF HP-OMS PERSONNEL.
(a) TURNOVER RATE AND DATA. Subject to Section 5.5(b) (CONTINUITY OF
KEY PERSONNEL), if Customer determines that HP-OMS' turnover rate is
unacceptable and so notifies HP-OMS, HP-OMS shall within ten (10)
working days (i) provide Customer with data concerning HP-OMS'
turnover rate, (ii) meet with Customer to discuss the reasons for the
turnover rate, and (iii) submit a proposal for reducing the turnover
rate for Customer's review and approval. Notwithstanding any transfer
or turnover of HP-OMS Personnel, HP-OMS shall remain obligated to
perform the Services without degradation and in accordance with the
Service Levels.
(b) RESTRICTIONS ON PERFORMING SERVICES TO COMPETITORS; CHANGES TO
SYSTEM ADMINISTRATION PASSWORDS.
(i) HP-OMS shall not cause or permit, without Customer's prior
written consent, any HP-OMS Personnel performing Services in
connection with the RSC or the MCC to perform services for a Customer
Competitor while engaged in the provision of Services to Customer and
for an additional period of at least twelve (12) months immediately
following the date of termination of such HP-OMS Personnel's provision
of Services to Customer. Notwithstanding the foregoing, HP-OMS
Subcontractors (except individual HP-OMS Subcontractors) shall not be
subject to the twelve (12) month limitation above, provided that such
HP-OMS Subcontractors have continuing obligations of confidentiality
with respect to Customer's Confidential Information, at least to the
extent set out in Section 17 (CONFIDENTIAL INFORMATION) and for a
minimum period of three (3) years following the date of termination of
such Subcontractor's provision of Services to Customer. In addition,
during the Term, HP-OMS shall not utilize any RSC or the MCC dedicated
for Customer for the benefit of any third party that is a Customer
Competitor.
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(ii) HP-OMS shall change all HP-OMS Personnel system administration
passwords (permitting such HP-OMS Personnel access to Customer's
confidential and proprietary information, including any Customer Data)
within twenty-four (24) hours after any HP-OMS Personnel performing
system administration functions ceases to provide Services to
Customer. In addition, in the event that any RSC HP-OMS Personnel
receives a system administration password in order to perform a
Service for which the MCC is otherwise responsible, HP-OMS shall
change the relevant system administration passwords within twenty-four
(24) hours after completion of the Service by such RSC HP-OMS
Personnel. During the Transition and Stabilization Phases, HP-OMS
shall propose for Customer's approval, IT business procedures which
will mechanize and standardize the foregoing, and, upon Customer's
approval, shall implement such procedures throughout the Term and the
Termination Assistance Period.
(iii) Prior to the commencement of any HP-OMS Personnel's involvement
in the provision of the Services, HP-OMS shall ensure that such
individual has executed a confidentiality agreement, which is at least
as protective of Customer's Confidential Information as the terms and
conditions of Section 17 (CONFIDENTIAL INFORMATION), and survives in
all cases the termination of such HP-OMS Personnels' involvement in
the provision of the Services.
5.8 CONDUCT OF HP-OMS PERSONNEL.
(a) CONDUCT AND COMPLIANCE. While at Customer Sites, HP-OMS Personnel will
comply with the applicable rules and regulations regarding personal
and professional conduct generally applicable to personnel at such
Customer Sites, including but not limited to those rules which will
affect HP-OMS' provision and/or delivery of the Operations Services,
and of any subsequent changes thereto, provided they were advised to
HP-OMS in advance and in writing or made available to HP- OMS
Personnel by means generally used by Customer to disseminate such
information to its employees or contractors. HP-OMS Personnel shall
also comply with reasonable requests of Customer personnel pertaining
to personal and professional conduct and otherwise conduct themselves
in a businesslike manner.
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(b) IDENTIFICATION OF HP-OMS PERSONNEL. If requested by Customer in
writing, all HP-OMS Personnel shall clearly identify themselves as
HP-OMS Personnel and not as employees of Customer.
(c) RESTRICTION ON MARKETING ACTIVITY. Except for marketing
representatives expressly agreed to by HP-OMS and Customer, none of
the HP-OMS Personnel performing Services for Customer hereunder shall
conduct, without the prior written consent of Customer, any sales or
marketing activities directed at Customer or any third party, at any
Customer Site or any other location, for as long as such HP-OMS
Personnel are engaged in the provision of Services to Customer.
(d) SUBSTANCE ABUSE. HP-OMS shall immediately remove (or cause to be
removed) any HP-OMS Personnel who is known to be or reasonably
suspected of engaging in substance abuse while on a Customer Site or
while performing Services. In the case of reasonable suspicion, such
removal shall be pending completion of the applicable investigation.
Substance abuse includes the sale, attempted sale, possession or use
of illegal drugs, drug paraphernalia, or, to the extent not permitted
on Customer Sites, alcohol, or the misuse of prescription or
non-prescription drugs. HP-OMS represents and warrants that it has and
will maintain a substance abuse policy and that such policy will be
applicable to all HP-OMS employees performing Services under this
Agreement. HP-OMS represents and warrants that it shall require its
HP-OMS Subcontractors and Affiliates providing Services to have and
maintain such policy and practices and to adhere to this provision.
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5.9 MEALS AND SOCIAL EVENTS FOR ON-SITE HP-OMS PERSONNEL; HP-OMS
REIMBURSEMENT. Customer shall provide all HP-OMS Personnel, who are
working at a Customer Site on a full-time basis during at least 80% of
the applicable working week, with the same level of food, beverage and
access to social events that are provided to Customer Employees, as a
benefit of their employment with Customer at the applicable Customer
Site. HP-OMS shall credit Customer against Customer's obligation to
pay the fees due hereunder.
6. CUSTOMER OBLIGATIONS
6.1 COOPERATION WITH HP-OMS.
(a) Customer acknowledges that HP-OMS' ability to deliver the Services is
dependent upon Customer's and Customer's Affiliates' reasonable
cooperation with HP-OMS. Customer will comply with the Customer
obligations stated in this Agreement, as well as the payment
obligations specified in Exhibit E - [Pricing and Pricing Principles]
and the transition obligations specified in the Transition Plan
referenced in Section 12 (TRANSITION AND STABILIZATION PHASES), and
will perform and observe the Customer responsibilities outlined in all
Exhibits and attachments. Furthermore, Customer undertakes, subject to
Section 2.3 (ELIGIBLE RECIPIENTS OF SERVICES), that all of Customer's
Affiliates at the applicable Customer Site shall be familiar with the
relevant terms of this Agreement and that they shall abide by
Customer's responsibilities derived therefrom in a timely manner.
6.2 CUSTOMER PROJECT MANAGER(S). Customer shall appoint one or more
representative(s) (in Customer's discretion) to supervise and
coordinate Customer's performance of Customer's obligations, which
representatives shall be identified in Exhibit G - [Project Staff and
Key Contacts], as updated by the Parties from time to time. Customer
may change its representative(s) at any time upon thirty (30) days
prior written notice. Customer's Project Manager(s) shall be
authorized to act as the primary point of contact for HP-OMS in
dealing with Customer with respect to each Party's obligations under
this Agreement and issue all consents or approvals and make all
requests on behalf of Customer.
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6.3 PROVIDING ACCESS TO HP-OMS. Customer will provide HP-OMS with access to
and use of all information, Customer Sites, Customer Data, and/or
Customer Software and/or systems, internal resources, facilities,
access passwords as necessary to deliver the Operations Services,
subject to Section 5.7(b) (RESTRICTIONS ON PERFORMING SERVICES TO
COMPETITORS; CHANGES TO SYSTEM ADMINISTRATION PASSWORDS), Section 5.8
(CONDUCT OF HP-OMS PERSONNEL), Section 17 (CONFIDENTIAL INFORMATION),
and Section 21.2 (SECURITY).
6.4 DISCLOSURE OF QUARTERLY FINANCIAL RESULTS OF PARENT. Following the public
release of Customer's financial reports and upon written request from
HP-OMS, Customer shall procure that a management representative of
Tecnomatix Technologies Ltd. will meet with a representative of HP-OMS
to respond to questions concerning the quarterly financial results of
Tecnomatix Technologies Ltd., to the extent permissible under
applicable law.
7. REQUIRED CONSENTS
7.1 HP-OMS-ADMINISTRATIVE RESPONSIBILITY FOR REQUIRED CONSENTS. As part of the
Services, HP-OMS shall assume primary responsibility for all
administrative activities necessary to obtain all Required Consents
and notify relevant third parties: (i) in connection with it acting as
agent for Customer under the Third Party Contracts to which Customer
is a party in connection with HP-OMS' provision of the Services, in
accordance with Section 7.4 (HP-OMS AS CUSTOMER'S AGENT UNDER THIRD
PARTY CONTRACTS) below; (ii) to grant to Customer (where applicable)
the right to use and/or access the HP-OMS Software and HP-OMS
Hardware; (iii) to assign or transfer to Customer or its designee the
Termination Assets in accordance with Section 20.6(d) (TRANSFER OF
TERMINATION ASSETS ON TERMINATION/EXPIRATION OF AGREEMENT) following
the expiration or termination of this Agreement to the extent provided
in this Agreement; (iv) to assign or transfer to Customer any
Developed Materials, and (v) to otherwise use any Intellectual
Property Rights or materials, to the extent necessary for the purpose
of HP-OMS' performance of its obligations under this Agreement
(collectively, the "HP-OMS- RESPONSIBLE REQUIRED CONSENTS"). Customer
will cooperate with and assist HP-OMS in obtaining the HP-OMS
Responsible Required Consents by executing all documents reasonably
necessary, which are prepared or provided by HP-OMS.
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7.2 FINANCIAL RESPONSIBILITY. The responsibility for payment of transfer,
relicensing and/or termination fees and/or expenses associated with
obtaining any HP-OMS- Responsible Required Consents or terminating any
licenses or agreements as to which Required Consents cannot be
obtained shall be referred for resolution to the Dispute Resolution
Process, and the Parties will endeavor to equitably allocate any such
fees and/or expenses.
7.3 ACCESS TO CUSTOMER SITES. Customer shall be responsible for obtaining,
and shall pay and be liable against HP-OMS for any vendor fees
required or costs occurring in connection with and relating to
obtaining all Required Consents to grant HP-OMS the right to access
Customer Sites (including any fees, royalties and costs required to
provide HP-OMS such consents).
7.4 HP-OMS AS CUSTOMER'S AGENT UNDER THIRD PARTY CONTRACTS. Unless otherwise
directed by Customer (and subject to Section 7.5 (CONTINGENT
ARRANGEMENTS) below), HP-OMS is hereby appointed as Customer's agent
in connection with Customer's rights and obligations under Third Party
Contracts to the extent necessary to fulfill HP-OMS' obligations under
the Agreement and HP-OMS accepts such appointment. HP-OMS shall retain
operational and financial responsibility over such contracts and shall
so notify the relevant third party vendor/service supplier under the
applicable Third Party Contract.
7.5 CONTINGENT ARRANGEMENTS. Should an HP-OMS-Responsible Required Consent not
be obtained, despite HP-OMS' using all commercially reasonable
efforts, Customer and HP-OMS will cooperate with each other in
achieving a reasonable alternative arrangement for Customer to
continue to process its work with as minimal interference to its
business operations as is reasonable until such Required Consent is
obtained. Subject to the foregoing, if Customer shall retain financial
and/or operational responsibility for such Services, any payments to
be made by Customer to the third party for Services and related costs
to Customer will be reimbursed by HP-OMS. The Service Levels will not
apply to such Services for which operational responsibility is
retained by Customer. Except as otherwise expressly provided herein,
the failure to obtain any Required Consent shall not relieve HP-OMS of
its obligations under this Agreement.
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8. HARDWARE
8.1 SERVICES IN CONNECTION WITH HP-OMS HARDWARE. HP shall perform the Services
in connection with the HP-OMS Hardware in accordance with this
Agreement, including without limitation, complying with Section 14
(FUNDAMENTAL OBLIGATIONS; WARRANTIES AND DISCLAIMERS).
8.2 MINIMUM LEVEL OF HP-OMS HARDWARE MAINTENANCE. HP-OMS shall maintain all
HP-OMS Hardware in good working order, including without limitation
undertaking repairs and preventive maintenance on HP-OMS Hardware in
accordance with the applicable Hardware manufacturer's recommendations
and requirements, so as to be eligible for such manufacturer's
maintenance program on termination or expiration of this Agreement
("ELIGIBILITY REQUIREMENTS"); provided, that HP-OMS shall not be
required to meet the Eligibility Requirements with respect to any
HP-OMS Hardware owned or leased by Customer prior to the Commencement
Date, which Customer did not so maintain prior to the Commencement
Date.
8.3 FINANCIAL AND OPERATIONAL RESPONSIBILITY. HP-OMS shall be responsible for
all third party fees or expenses (including maintenance and/or support
charges, if any) on or after the Commencement Date associated with all
HP-OMS Hardware, and shall pay all amounts becoming due with respect
to such HP-OMS Hardware, and all related expenses (including pro rata
maintenance and/or support fees, if any), for periods on or after the
Commencement Date. In addition, HP-OMS shall be responsible for the
evaluation, procurement, testing, installation, use, support,
management, administration, operation and maintenance of such HP-OMS
Hardware and the performance, availability, reliability, compatibility
and interoperability of such HP-OMS Hardware and related Third Party
Contracts, each in accordance with this Agreement, including the
Service Levels and change management procedures.
8.4 TITLE TO HP-OMS HARDWARE.
(a) Subject to Section 20.6(d) (TRANSFER OF TERMINATION ASSETS ON
TERMINATION/EXPIRATION OF AGREEMENT), title to the Leased Add-On
Assets, Transition Project Assets, Refreshed Assets, and New Customer
Employee Assets is retained by HP-OMS, and Customer has no rights
thereto except as specifically permitted under this Agreement (the
"HP-OMS-OWNED HARDWARE"). Under no circumstances whatsoever shall
Customer be entitled to transfer to a third party any rights or
obligations in such assets, including rights to retain and/or to use
such assets. Without derogating from the above, Customer shall not
transfer such assets as a loan to any third party, nor shall it sell
it or cause it to be seized or mortgaged.
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(b) As between Customer and HP-OMS, title to all HP-OMS Hardware owned or
leased by Customer prior to the Commencement Date and all Purchased
Add-on Assets are retained by Customer, and HP-OMS has no rights
thereto, except for the sole purpose of providing the Services (the
"CUSTOMER-OWNED HARDWARE"). Under no circumstances whatsoever shall
HP-OMS be entitled to transfer to a third party, any rights or
obligations in such assets, including rights to retain and/or to use
such assets. Without derogating from the above, HP-OMS shall not
transfer such assets as a loan to any third party, nor shall it sell
it or cause it to be seized or mortgaged.
8.5 NON-INTERFERENCE WITH HP-OMS HARDWARE. Each party shall refrain from any
act or omission with regard to the HP-OMS Hardware, which may imply,
directly or indirectly, that HP-OMS or Customer is not the rightful
owner of the applicable HP-OMS Hardware (owned as set out in Section
8.4 (TITLE TO HP-OMS HARDWARE) above. Without derogating from the
above, (a) if requested by HP-OMS, the Customer hereby undertakes to
notify all relevant creditors or any other relevant institution that
the title of HP-OMS-Owned Hardware is vested exclusively with HP-OMS;
and (b) if requested by Customer, HP-OMS hereby undertakes to notify
all relevant creditors or any other relevant institution that the
title of Customer-Owned Hardware is vested exclusively with Customer.
HP-OMS shall be entitled to xxxx HP-OMS-Owned Hardware as its property
by attaching an appropriate legend to each item thereof, and Customer
shall be entitled to xxxx Customer-Owned Hardware as its property by
attaching an appropriate legend to each item thereof.
8.6 UPGRADE, MODIFICATION AND REPLACEMENT OF HP-OMS HARDWARE.
(a) Subject to clause (b) below, HP-OMS may upgrade, modify and replace
the HP-OMS Hardware, as HP-OMS, in its sole discretion, deems
appropriate, so long as HP-OMS does not change, and remains in
compliance with (i) the Service Levels, including but not limited to
HP-OMS' obligations in connection with the Technology Refresh Program;
(ii) all other relevant terms and conditions of this Agreement; and
(iii) the language of the upgraded, modified or replaced HP-OMS
Hardware (e.g., the language of the operating system and keyboard).
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(b) Any deviation by HP-OMS from Customer's standards with respect to
infrastructure Hardware (i.e., routers, switches, servers, storage and
backup devices, and communication lines), in effect prior to the
Commencement Date (which standards shall be documented by HP-OMS
during the Transition and Stabilization Phases), shall require
Customer's prior written consent, which shall not be unreasonably
withheld.
8.7 USE OF HP-OMS HARDWARE. Neither Party may use any HP-OMS Hardware for any
purpose other than Customer's business purposes (and any other act
which is reasonably incidental to such use).
9. SOFTWARE
9.1 LIMITED RIGHT TO USE CUSTOMER SOFTWARE. The Customer hereby grants
HP-OMS a right to use the Customer Software solely in connection with
HP-OMS' provision of the Services to Customer and to the extent
permitted under the applicable Third Party Software.
9.2 HP-OMS' PROVISION OF CUSTOMER SOFTWARE SERVICES. HP-OMS shall provide the
Services for the Customer Software in accordance with this
Agreement, including Exhibit B (the "CUSTOMER SOFTWARE SERVICES").
9.3 CUSTOMER SOFTWARE WARRANTIES. With respect to the Customer Software used
by HP-OMS to provide the Operation Services, and unless otherwise
specified in Exhibit B, the Customer represents and warrants that,
during the entire Term of this Agreement:
(a) Customer Software is and shall be supported under the applicable Third
Party Contract, at the same level as prior to the Commencement Date
and will continue to be supported by Customer or an authorized third
party, all to the extent set out in Exhibit B.
9.4 OTHER RIGHTS/OBLIGATIONS IN CONNECTION WITH CUSTOMER SOFTWARE
(a) HP-OMS reserves the right to move Customer Software and Customer Data
solely within the applicable Customer Site, upon written consent from
Customer, not to be unreasonably withheld.
(b) Customer may change the location of Customer Software upon prior
written notice to HP-OMS, subject to the terms and conditions of
Exhibit B.
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(c) Customer is responsible for paying the applicable third party supplier
of Customer Software the applicable fee entitling Customer to receive
Customer Software updates.
9.5 CUSTOMER'S RIGHT TO USE HP-OMS SOFTWARE. HP-OMS grants to Customer a
non-exclusive, royalty-free right, in object code form, to use all
Software included within the Termination Assets throughout the Term,
subject to Section 20.6(d) (TRANSFER OF TERMINATION ASSETS ON
TERMINATION/EXPIRATION OF AGREEMENT), except with respect to Other
HP-OMS Software, which shall be provided to Customer on a
non-exclusive, right to use, paid-up, perpetual basis.
9.6 HP-OMS' PROVISION OF HP-OMS SOFTWARE SERVICES; FINANCIAL RESPONSIBILITY.
(a) HP-OMS shall provide the Services in connection with the HP-OMS
Software in accordance with this Agreement. Without limiting the
generality of the foregoing, any support or maintenance services
provided by HP-OMS with respect to the HP-OMS Software shall be
performed in accordance with the applicable HP-OMS Software
documentation, supplier recommendations and requirements.
(b) HP-OMS shall be responsible for any third party fees or expenses on or
after the Commencement Date associated with the provision of the
Services described in this Agreement with respect to HP-OMS Software
and related Third Party Contracts, and shall pay all amounts becoming
due under such licenses or related agreements, and all related
expenses (including any maintenance and/or support charges) for
periods on or after the Commencement Date.
(c) Customer shall be responsible for any third party fees or expenses due
prior to the Commencement Date with respect to HP-OMS Software and
related Third Party Contracts, and shall pay all amounts due under
such licenses or related agreements, and all related expenses
(including any maintenance and/or support charges) for periods prior
to the Commencement Date.
9.7 PARTIES' COMPLIANCE WITH HP-OMS SOFTWARE AND CUSTOMER SOFTWARE LICENSE
TERMS. Each party undertakes to abide by the provisions of the license
to use terms and conditions of each HP-OMS Software and Customer
Software (including every revision or update), as well as by all
instructions concerning manufacturer's copyright in the Software
and/or any relevant documentation.
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9.8 SOURCE CODE ESCROW OF THIRD PARTY HP-OMS SOFTWARE. To the extent permitted
by applicable third party licensors, HP-OMS will add Customer as a
beneficiary to any source code escrow agreements entered into by
HP-OMS under HP-OMS Software licenses received by HP-OMS from third
parties (other than Software licenses owned or leased by Customer
prior to the Commencement Date, which are used by HP-OMS to perform
the Services).
9.9 HP-OMS' OPERATIONAL RESPONSIBILITY. In connection with HP-OMS' obligations
under Third Party Contracts, HP-OMS shall be responsible for enforcing
(and shall enforce) all of Customer's and HP-OMS' rights for (and
shall comply with the applicable operational obligations in connection
with) the evaluation, procurement, testing, installation, use,
support, management, administration, operation and maintenance of all
HP-OMS Software. In addition, HP-OMS shall be responsible for
enforcing (and shall enforce) all of its rights for (and shall comply
with the applicable operational obligations in connection with) the
performance, availability, reliability, compatibility and
interoperability of such HP-OMS Software, each in accordance with this
Agreement, including the Service Levels and change management
procedures. HP-OMS shall have the same operational responsibilities as
described above with respect to Customer Software, to the extent of
HP-OMS' "Make it Work" obligations set out in Exhibit B, except that
HP-OMS shall not be responsible for evaluation and testing (in excess
of fifty (50) hours of evaluation/testing) for each such Customer
Software.
10. PRICE AND PAYMENT
10.1 TARGET PRICE AND BANK OF WORK HOURS INVOICING AND PAYMENT. In
consideration of HP-OMS providing the Services as described in this
Agreement, Customer shall pay to HP-OMS the Target Price. The Target
Price shall be invoiced on a quarterly basis, in accordance with the
payment schedule detailed in Exhibit E - [Pricing and Pricing
Principles]. HP-OMS shall adjust the Target Price all as specified in
Exhibit E - [Pricing]. In consideration of HP-OMS providing the
Services outside of the "Service Window" hours (specified in Exhibit
C,), Customer shall pay to HP-OMS the Bank of Work Hours hourly rates,
described in Exhibit E. The invoice for such hourly work shall be
delivered to Customer on a monthly basis, together with all supporting
information reasonably requested by Customer, as more specifically set
out in Exhibit E. Except as otherwise set forth herein, HP-OMS shall
not invoice Customer for any advance or concurrent charges or other
amounts. All HP-OMS expenses relating to the Services (including
travel and living expenses) are included in the Target Price and Bank
of Work Hours hourly rates and shall not be reimbursed by Customer
unless agreed to by Customer in writing.
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10.2 APPLICATION OF CREDITS/LIQUIDATED DAMAGES. To the extent a credit
(including but not limited to a Service Level Credit) is due to
Customer pursuant to this Agreement, HP-OMS shall provide Customer
with an appropriate undisputed credit (in the invoice immediately
following the date of such credit), applied against amounts then due
and owing; if no further payments are due to HP-OMS, HP-OMS shall pay
such undisputed amounts to Customer within thirty (30) days.
10.3 INVOICING; DATE OF PAYMENT OF INVOICES. HP-OMS shall issue quarterly
invoices for all payments due under this Agreement not earlier than
the first day of the first month of each quarter in which the
quarterly Target Price is due hereunder. Subject to Section 10.5
(ESCROW OF DISPUTED AMOUNTS), Customer shall make payment of the
Target Price due under this Agreement, as specified in Exhibit E
hereto.
10.4 TAXES. Each party shall bear its own tax obligation, all as specified in
Exhibit E hereto.
10.5 ESCROW OF DISPUTED AMOUNTS.
(a) In the event Customer disputes in good faith any amount claimed to be
payable by HP-OMS under the Agreement, Customer shall pay the disputed
amount into escrow, in accordance with Subsection (c) below.
(b) In the event HP-OMS disputes in good faith any credit (including but
not limited to a Service Level Credit), which may be due to Customer
pursuant to this Agreement, (i) Customer shall pay the disputed sum
into escrow, in accordance with Subsection (c) below, provided that
payments other than the disputed amounts remain to be paid under the
Agreement; or (ii) HP-OMS shall pay the disputed sum into escrow, in
accordance with Subsection (c) below, if no further payments are due
to HP-OMS under the Agreement.
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(c) In the event of a disputed amount payable into escrow as described in
Section 10.5 (DISPUTED AMOUNTS), the party with the obligation to pay
shall so pay such disputed amount in full (the "DISPUTED AMOUNT") to
Advocate Xxxxx Xxxxxxx, Advocate of Tel Aviv (or to any other party
agreed upon in advance and in writing by the parties), as escrow agent
for the parties (the "ESCROW AGENT"), in accordance with an escrow
agreement to be executed among Customer, HP-OMS and the Escrow Agent,
a signed copy of which shall be attached to this Agreement as Exhibit
P [Escrow Agreement] within thirty (30) days from the Commencement
Date (the "ESCROW AGREEMENT"). The escrow agreement shall provide,
among other things, that any amounts desposited with the the Escrow
Agent shall not be released to either party, until the dispute is
resolved in accordance with Section 21.7 (DISPUTE RESOLUTION PROCESS)
and the Escrow Agent receives either (i) written notice signed by both
parties with instructions directing the release of the Disputed
Amount; or (ii) a final, unappealable judgment signed by a court of
competent jurisdiction in Israel ordering the release of the Dispute
Amount to one of the parties. Unless otherwise agreed by the parties,
the Escrow Agreement shall further provide that each party shall
indemnify, defend and hold harmless the Escrow Agent from any claims,
actions, damages, fees and expenses, costs, reasonable attorney's fees
and other liabilities incurred by the Escrow Agent relating to this
escrow arrangement except where it is adjudged that the Escrow Agent
has acted with gross negligence or willful misconduct.
10.6 INTEREST ON UNPAID AMOUNTS. Interest on amounts in arrears shall be
computed and paid as specified in Exhibit E.
10.7 CREDITS/REIMBURSEMENT FOR CUSTOMER PAYMENTS COVERING PERIODS AFTER
COMMENCEMENT DATE. Except as otherwise permitted hereunder, Customer
shall not make any payments (whether prior to or after the
Commencement Date) to any third party in consideration for Services,
Software, Hardware or other materials to be provided or performed on
or after the Commencement Date by HP-OMS or a third party for which
HP-OMS has financial responsibility hereunder, with the intention of
diminishing the Services to be provided by HP-OMS hereunder, without
the prior written authorization by HP-OMS. If HP-OMS has authorized
such payments or if such payments are made by Customer in good faith -
it shall promptly credit Customer against amounts then due and owing
hereunder to HP-OMS; if no further payments are due and owning to
HP-OMS, HP-OMS shall pay such amounts to Customer within thirty (30)
days. If HP-OMS pays for services, Software, Hardware or other
materials after the Commencement Date for services Software, Hardware
or other materials provided to Customer prior to the Commencement
Date, Customer shall reimburse HP-OMS in such amounts.
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10.8 GUARANTEE FROM TECNOMATIX TECHNOLOGIES LTD. In addition to its other
rights and remedies against Customer under this Agreement, in the
event of a breach by Customer hereunder, HP-OMS may, at any time,
exercise its rights as a beneficiary to the Guarantee, executed by
Tecnomatix Technologies Ltd, attached hereto as Exhibit K.
10.9 CERTAIN GOVERNMENT INCENTIVES. In connection with certain government
incentives available or which may become available to Customer,
Customer has committed or may commit in the future through itself, its
divisions, and Affiliates to expend funds or make investments or
expenditures which may include the purchase of products or services,
currency or capital investments, technology transfers through
licensing or other arrangements, real property leases or purchases,
and lease buy-back arrangements. Since it is anticipated that HP-OMS
may be making or accomplishing such qualifying investments on behalf
of Customer, each Party shall utilize its best efforts, consistent
with all preexisting commitments and applicable legal requirements, in
order to afford Customer the benefit of all such incentives which are
available as a result of the performance of Services under this
Agreement. HP-OMS shall make information available to Customer on a
periodic basis as to the nature and amount of investment activities it
is planning in respect of the Services, and shall provide Customer
with such certificates and other appropriate documentation as are
necessary to support utilization by Customer of such incentives.
10.10 AUDIT RIGHTS.
(a) HP-OMS RECORDS. HP-OMS shall, and shall cause HP-OMS Subcontractors
to, maintain complete and accurate records of and supporting
documentation for all fees chargeable hereunder, all Customer Data and
all transactions, soft document access, reports, data or information
created, generated, processed or stored by HP-OMS in the performance
of its obligations under this Agreement, including in respect of the
Service Levels ("CONTRACT RECORDS"). HP-OMS shall maintain such
Contract Records with respect to the Termination Assets in accordance
with generally accepted accounting principles applied on a consistent
basis and generally accepted auditing standards and in accordance with
the financial record management provisions of Exhibit E, and with
respect to other obligations under the Agreement, in accordance with
HP-OMS' record retention policy as it may be modified from time to
time and provided to HP-OMS in writing.
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(b) OPERATIONAL AUDITS. HP-OMS shall, and shall cause HP-OMS
Subcontractors to, provide to Customer (and auditors and other
representatives) access at reasonable hours to HP-OMS Personnel, to
the facilities at or from which Services are then being provided, and
to HP-OMS records and other pertinent information, all to the extent
relevant to the Services and HP-OMS' obligations under this Agreement.
Such access shall be provided for the purpose of performing audits and
inspections of HP-OMS and HP-OMS Personnel in respect of Customer and
its businesses, to (i) verify HP-OMS' compliance with this Agreement
(ii) enable Customer to meet applicable legal, regulatory and
contractual requirements and (iii) to verify the accuracy and
completeness of fees (other than the Target Price). HP-OMS shall
provide any assistance reasonably requested by Customer or its
designee in conducting any such audit, including installing and
operating audit software. Without limiting Customer's other rights and
remedies under this Agreement, if an audit reveals a material breach
of this Agreement or an overcharge by HP-OMS, HP-OMS shall promptly
reimburse Customer for the actual cost of such audit, together with
interest on the difference between the overcharged and the correct
amounts from the date of HP-OMS' receipt of such overcharge at the
rate set out in Section 10.6 (INTEREST ON UNPAID UNDISPUTED AMOUNTS).
If an undercharge has occurred, Customer will reimburse HP-OMS to the
extent of such undercharge.
(c) QUARTERLY REPORT BY HP-OMS. Within fourteen (14) business days after
the end of each calendar quarter, HP-OMS shall provide Customer with a
report containing a list of the Termination Assets, initial book
value, accumulated depreciation, net book value, and calculated years
for depreciation per asset, as set out in HP-OMS' financial records,
and any other relevant information requested by Customer to confirm
compliance with HP-OMS' financial record management obligations, as
set in Exhibit E, Appendix F.
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(d) FINANCIAL AUDITS. Except as provided below, Customer shall have no
right to carry out, either directly or through a third party any
financial audit of HP-OMS, or HP-OMS's Subcontractors. HP-OMS's
auditors shall provide to Customer on a quarterly basis and at any
other reasonable times if so requested by Customer, at the cost of
HP-OMS, confirmation of HP-OMS' compliance with its obligations with
respect to the Termination Assets as set out in Exhibit E, as well as
(i) a list describing each of the Termination Assets, (ii) the initial
book value of the asset, (iii) years for depreciation, (iv) method of
depreciation; (v) net book value, and (vi) any other reasonable detail
requested by Customer. If any such audit reveals non-compliance,
HP-OMS shall promptly correct such noncompliance in its financial
records.
In accordance with the foregoing, during the Term of this Agreement
and for a period of seven (7) years after termination or expiration of
this Agreement, HP-OMS shall provide to Customer (and auditors and
other representatives) access at reasonable hours to HP-OMS' Contract
Records to the extent relevant to the performance of HP-OMS'
obligations under this Agreement (and any other Contract Records
relevant to the requirements of such governmental agencies), if and to
the extent required by any applicable governmental authority. HP-OMS
shall provide any assistance reasonably requested by Customer or its
designee in conducting any such audit.
11. CHANGE MANAGEMENT
11.1 CHANGE REQUESTS. Customer or HP-OMS may submit a written Change Request
to initiate changes in the Services as detailed in Exhibit B. The
Change Request shall be managed in accordance with the process
described in the Change Management chapters in Exhibit B - [Statement
of Work] and Exhibit E - [Pricing and Pricing Principles]).
11.2 CHANGE REQUEST ORDERS. HP-OMS will advise Customer of the resultant impact
of the Change Request on price and schedule within the time frame
prescribed in Exhibit B - [Statement of Work]. Prior to
implementation, all Change Requests must be mutually agreed upon in
writing by the Parties. Pending such agreement, HP-OMS shall continue
to perform and to be paid as if such Change Request had not been
requested or recommended. Once a Change Request Order is signed by the
Parties and implemented, HP-OMS will adjust Customer's invoice in
accordance with the agreed terms of the Change Request order. However,
the price of changes requiring up to fifty (50) person hours of work
(per change request) shall be charged at the Bank of Work Hours rates,
identified in Exhibit E - [Pricing and Pricing Principles]; provided,
that HP-OMS shall perform the first fifty (50) person hours of work
per calendar year, otherwise chargeable at the Bank of Work Hours
rates, free of charge.
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11.3 CUSTOMER'S RIGHT TO USE CUSTOMER CONTRACTORS. Nothing in this Agreement
shall be construed as a requirements or exclusive contract, and
notwithstanding anything to the contrary contained herein, this
Agreement shall not be interpreted to prevent Customer from obtaining
from Customer Contractors, or providing to itself, any or all of the
same or similar Services described in this Agreement. For the
avoidance of doubt, this Section shall not limit HP-OMS' obligations
to perform, and Customer's obligations to pay for, the Services in
accordance with the terms and conditions of this Agreement.
11.4 HP-OMS COOPERATION. HP-OMS shall fully cooperate with and work in good
faith with Customer or Customer Contractors as requested by Customer
and at no additional charge to Customer. Such cooperation shall
include: (i) timely providing access to any facilities being used to
provide the Services, as necessary for Customer personnel or Customer
Contractors to perform the work assigned to them; (ii) timely
providing reasonable electronic and physical access to the business
processes and associated Hardware and Software, to the extent
necessary and appropriate for Customer Employees or Customer
Contractors to perform the work assigned to them; (iii) timely
providing written requirements, standards, policies or other
documentation for the business processes and associated Hardware or
Software procured, operated, supported or used by HP-OMS in connection
with the Services; or (v) any other cooperation or assistance
reasonably necessary for Customer Employees or Customer Contractors to
perform the work in question. Customer Employees and Customer
Contractors shall comply with HP-OMS' security and confidentiality
requirements, and shall, to the extent performing work on Software or
Hardware for which HP-OMS has operational responsibility, comply with
HP-OMS' standards, methodologies, and procedures.
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12. TRANSITION AND STABILIZATION PHASES
12.1 TRANSITION PLAN. The Parties have agreed upon a transition plan for the
transfer of the responsibilities relating to the Services from
Customer to HP-OMS, which Plan is detailed in Exhibit D - [Transition
and Stabilization] (the "TRANSITION PLAN"). Such Transition Plan shall
be implemented during the Transition and Stabilization Phases. Exhibit
D identifies, among other things (i) the transition and stabilization
activities to be performed by HP-OMS and the significant components
and subcomponents of each such activity, (ii) the Deliverables to be
completed by HP-OMS, (iii) the date(s) by which each such activity or
Deliverable is to be completed (the "TRANSITION MILESTONES"), and (iv)
any transition responsibilities to be performed or transition
resources to be provided by Customer. In addition, within thirty (30)
after the Commencement Date, HP-OMS shall prepare and deliver to
Customer for Customer's review, comment and approval a detailed work
plan based on and consistent with Exhibit D. Such detailed work plan
shall become a part of Exhibit D and be incorporated therein.
12.2 PERFORMANCE. As part of the Services, HP-OMS shall perform the Transition
and Stabilization Services described in Exhibit D in accordance with
the Transition Milestones set forth therein. HP-OMS shall provide all
cooperation and assistance reasonably required or requested by
Customer in connection with Customer's evaluation or testing of the
Deliverables set forth in Exhibit D. HP-OMS shall perform the
Transition and Stabilization Services so as to avoid or minimize to
the extent possible (i) any material disruption to or adverse impact
on the business or operations of Customer, (ii) any degradation of the
Services then being received by Customer, or (iii) any material
disruption or interference with the ability of Customer to obtain the
full benefit of the Services, except as may be otherwise provided in
Exhibit D.
12.3 DISCLOSING KNOWN RISKS; AVOIDING DELAYS. Prior to undertaking any
transition activity, HP-OMS shall discuss with Customer all known
Customer-specific material risks and shall not proceed with such
activity until Customer is reasonably satisfied with the plans with
regard to such risks (provided that, neither HP-OMS' disclosure of any
such risks to Customer, nor Customer's acquiescence in HP-OMS' plans,
shall operate or be construed as limiting HP-OMS' responsibilities
under this Agreement). HP-OMS shall identify and resolve, with
Customer's reasonable assistance, any problems that may impede or
delay the timely completion of each task in Exhibit D that is HP-OMS'
responsibility and shall use all commercially reasonable efforts to
assist Customer with the resolution of any problems that may impede or
delay the timely completion of each task in Exhibit D that is
Customer's responsibility.
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12.4 REPORTS. Key Personnel shall meet at least weekly with Customer's Project
Manager(s) to report on HP-OMS' progress in performing its
responsibilities and meeting the timetable set forth in Exhibit D.
HP-OMS also shall provide written reports to Customer at least weekly
regarding such matters, and shall provide oral reports more frequently
if reasonably requested by Customer. Promptly upon receiving any
information indicating that HP-OMS may not perform its
responsibilities or meet the timetable set forth in Exhibit D, HP-OMS
shall notify Customer in writing of material delays and shall identify
for Customer's consideration and approval specific measures to address
such delay and mitigate the risks associated therewith. After the
Transition and Stabilization Phases are completed, HP-OMS will provide
Customer with periodic reports as described in Exhibit B - [Statement
of Work].
12.5 INFORMATION REQUESTED/PROVIDED DURING DUE DILIGENCE PROCESS. Customer
hereby represents and warrants that it has provided HP-OMS with access
to Customer's relevant books and records during the Due Diligence
Process. However, if, during the Transition and Stabilization Phases,
HP-OMS discovers that such access was not provided, HP-OMS and
Customer will discuss in good faith the need to amend the Agreement to
provide for an equitable adjustment to the Target Price, considering
all the facts and circumstances surrounding such material inaccuracy
or deficiency. If Customer or HP-OMS disputes the need for or the
extent of such equitable adjustment, Customer and HP-OMS will
initially submit the matter to the Dispute Resolution Process defined
in Section 21.7 (DISPUTE RESOLUTION PROCESS). For the avoidance of
doubt, Customer shall have no responsibility (and the Target Price
shall not be adjusted) if HP-OMS had knowledge or notice, obtained
during the Due Diligence Period, of services, functions or
responsibilities performed by or for the Customer prior to the
Commencement Date - e.g., where reflected or a cost or amount
allocated in Customer's or its Affiliates' books or records.
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13. TESTING AND ACCEPTANCE TEST PROCEDURES
13.1 TESTING. At the end of each Transition Milestone and in accordance with
the Transition Plan, and at the end of each milestone identified in
any statement of work or upon delivery of any new Hardware or Software
(i.e., after the Transition and Stabilization Phases), HP-OMS, as part
of the Services, shall conduct testing of the deliverables thereunder
(the "DELIVERABLES") during an agreed acceptance testing period to
determine if the Deliverables are in compliance with the agreed
testing criteria and specifications ("ACCEPTANCE TEST(S)") and shall
permit Customer (in its sole discretion) to witness or participate in
the Acceptance Test. If HP-OMS determines that the Deliverables for
the applicable Transition Milestone have passed the Acceptance Test,
HP-OMS shall so notify Customer. If the Deliverables successfully
complete the Acceptance Tests during the Acceptance Test Period,
Customer shall indicate its written acceptance thereof and deliver
such acceptance to HP-OMS. If the applicable Acceptance Test reveals
any noncompliance with such acceptance criteria and specifications
("NONCOMPLIANCE"), HP-OMS shall promptly (and in a manner that does
not delay completing the Transition and Stabilization Services within
the Transition Milestones): (i) so notify Customer in writing (ii)
remedy the Noncompliance; and (iii) re-perform the Acceptance Test for
Customer's approval (under the same procedures for the initial
Acceptance Test).
14. FUNDAMENTAL OBLIGATIONS; WARRANTIES AND DISCLAIMERS
14.1 CERTAIN HP-OMS FUNDAMENTAL OBLIGATIONS. HP-OMS' fundamental obligations
under the Agreement shall include, without limitation, the following:
(a) SERVICES STANDARD. HP-OMS will perform the Operations Services with
promptness and diligence, in a professional and workmanlike manner in
accordance with the Services Levels, in accordance with the ITSM
guidelines and HP best known practices for the applicable service
level. HP-OMS shall provide on or before the Commencement Date a copy
of the applicable ITSM guidelines.
(b) HP-OMS PERSONNEL. HP-OMS shall use adequate numbers of qualified
individuals with suitable training, education, experience, competence
and skill to perform the Services. HP-OMS shall provide such
individuals with training as to new products and services prior to the
implementation of such products and services in the Customer
environment.
(c) HARDWARE/SOFTWARE MAINTENANCE. Unless otherwise agreed, HP-OMS shall
maintain the HP-OMS Hardware and HP-OMS Software so that they operate
substantially in accordance with the Service Levels and their
specifications.
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(d) THIRD PARTY HARDWARE/SOFTWARE NO LONGER SUPPORTED. For third party
HP-OMS Hardware and HP-OMS Software no longer supported by the third
party licensor or manufacturer, HP-OMS shall use commercially
reasonable efforts to perform maintenance for such HP-OMS Hardware or
HP-OMS Software, as required.
(e) TECHNOLOGY REFRESH. At all times throughout the Term, HP-OMS shall
upgrade or replace HP-OMS Hardware in accordance with the Technology
Refresh Program.
(f) SOFTWARE CURRENCY. At all times throughout the Term, HP-OMS shall
upgrade or replace HP-OMS Software as necessary to satisfy its
obligations under this Agreement according to Exhibit C, at no
additional cost to Customer; provided, HP-OMS shall utilize at least
the second to most (if not the most) updated version of such Software.
(g) HP-OMS SOFTWARE. Any HP-OMS Software will comply with its
specifications and will provide the functions and features and operate
in the manner described therein, subject to any software
manufacturer-caused errors.
(h) DEVELOPED MATERIALS. Developed Materials shall be free from material
errors in operation and performance, shall comply with their
documentation and the applicable specifications in all material
respects and shall provide the functions and features and operate in
the manner agreed by the Parties.
(i) NONCONFORMITY. In the event that the HP-OMS Software or Developed
Materials do not comply with the applicable specifications and
criteria set forth in this Agreement, and/or materially and adversely
affect the Services provided hereunder and subject to subsection (g)
above, HP-OMS shall repair in accordance with the Service Levels or
replace such HP-OMS Software or Developed Materials with conforming
HP-OMS Software or Developed Materials.
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(j) MALICIOUS CODE. HP-OMS shall take all commercially reasonable actions
and precautions (including the use of the latest updated version of
antivirus Software) according to Customer's security policy, defined
prior to the Commencement Date, to prevent the introduction and
proliferation of Malicious Code into Customer's environment or any
system used by HP-OMS to provide the Services,. Any deviation from
said policy, which is not supported by upgrades of the security
systems in use prior to the Commencement Date by the Customer, will be
carried out as per the Change Management Procedure. HP-OMS shall only
be required to invest up to 175,000 USD during the Term in new
security xxxxxxx.Xx used herein, "MALICIOUS CODE" means any known (i)
code, program, or sub-program, whose knowing or intended purpose is to
damage or interfere with the operation of the computer system
containing the code, program or sub-program, or to halt, disable or
interfere with the operation of the Software, code, program, or
sub-program, itself, or (ii) device, method, or token that permits any
person to circumvent or breach the normal security of the Customer
network, systems, the Software or the system containing the code.
Without limiting HP-OMS' other obligations under this Agreement, in
the event Malicious Code is found in Hardware, Software or systems
managed or supported by HP-OMS or used by HP-OMS to provide the
Services, HP-OMS shall exercise all commercially reasonable efforts,
at no additional charge to Customer, to eliminate and reduce the
effects of such Malicious Code and, if the Malicious Code causes a
loss of operational efficiency or loss of data, to mitigate such
losses and restore such data with generally accepted data restoration
techniques.
14.2 CERTAIN HP-OMS WARRANTIES. In addition to its warranties, representations
and other obligations set out elsewhere in this Agreement, HP-OMS
represents and warrants to the Customer as follows:
(a) OWNERSHIP AND USE. HP-OMS represents, warrants and covenants that it
is either the owner of, or authorized to use, any and all Software
provided and used by HP-OMS in providing the Services. As to any such
Software that HP-OMS does not own but is authorized to use, HP-OMS
shall advise Customer as to the ownership and extent of HP-OMS' rights
with regard to such Software to the extent any limitation in such
rights would materially impair HP-OMS' performance of its obligations
under this Agreement.
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(b) TRANSFER OF TERMINATION ASSETS ON TERMINATION/EXPIRATION; THIRD PARTY
CONTRACT TERMS. Upon expiration of the Initial Term or Extended Term
or earlier termination of this Agreement for any reason, HP-OMS will
(i) have full authority to transfer its interest as owner, lessee or
licensee of the relevant Termination Assets, without the payment by
Customer or its designee of any license fees (associated with any
period prior to the expiration of the Initial Term or Extended Term or
earlier termination of this Agreement) or transfer fees, in accordance
with Section 20 (TERM; BREACH; AND TERMINATION); and (ii) use best
efforts to make Third Party Contracts for the support and maintenance
of HP-OMS Hardware and HP-OMS Software assignable to Customer for a
period extending one year after such expiration or earlier termination
of this Agreement, on terms, conditions and prices no less favorable
to Customer or its designees, and at least sufficient for the
continuation of the activities comprising the Services.
(c) COMPLIANCE WITH LAWS. With respect to the provision of the Services
and the performance of its other legal and contractual obligations
hereunder, HP-OMS is and shall be in compliance with all applicable
laws (including privacy laws) on the Commencement Date and shall
remain in compliance with such laws for the entire Term of this
Agreement.
14.3 MUTUAL GENERAL WARRANTIES. Each Party represents and warrants to the other
that:
(a) CORPORATE EXISTENCE. It is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of
its incorporation;
(b) CORPORATE POWER AND AUTHORITY. It has the requisite corporate power
and authority to execute, deliver and perform its obligations under
this Agreement;
(c) LEGAL AUTHORITY. It has obtained all licenses, authorizations,
approvals, consents or permits required to perform its obligations
under this Agreement under all applicable laws and under all
applicable rules and regulations of all authorities having
jurisdiction over the Services, except to the extent the failure to
obtain any such license, authorizations, approvals, consents or
permits is, in the aggregate, immaterial;
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(d) DUE AUTHORIZATION. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by
this Agreement have been duly authorized by the requisite corporate
action on the part of such Party; and
(e) NO VIOLATION OR CONFLICT. The execution, delivery, and performance of
this Agreement shall not constitute a violation of any judgment,
order, or decree; a material default under any material contract by
which it or any of its material assets are bound; or an event that
would, with notice or lapse of time, or both, constitute such a
default.
14.4 WARRANTIES OF NON-INFRINGEMENT.
(a) PERFORMANCE OF RESPONSIBILITIES. Each Party represents and warrants
that it shall perform its responsibilities under this Agreement
(including, without limitation, HP-OMS' responsibilities with respect
to HP-OMS Software and HP-OMS Hardware) in a manner that does not
infringe, or constitute an infringement or misappropriation of, any
Intellectual Property Right or other proprietary or privacy rights of
any third party; provided, however, that the performing Party shall
not have any obligation or liability to the extent any infringement or
misappropriation is caused by (i) modifications made by the other
Party or its contractors or subcontractors, without the knowledge or
approval of the performing Party, (ii) the other Party's combination
of the performing Party's work product or Materials with items not
furnished, specified or reasonably anticipated by the performing Party
or contemplated by this Agreement, (iii) a breach of this Agreement by
the other Party, (iv) the failure of the other Party to use
corrections or modifications provided by the performing Party offering
equivalent features and functionality, or (v) Third Party Software,
except to the extent that such infringement or misappropriation arises
from the failure of the performing Party to obtain the necessary
licenses or Required Consents or to abide by the limitations of the
applicable Third Party Software licenses. Each Party further
represents and warrants that it will not use or create Materials in
connection with the Services which are libelous, defamatory or
obscene.
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(b) THIRD PARTY SOFTWARE INDEMNIFICATION. In addition, unless otherwise
agreed, with respect to HP-OMS Software licensed to HP-OMS from a
third party during the Term, HP-OMS covenants that it shall make
commercially reasonable efforts to obtain and provide intellectual
property indemnification for Customer (or obtain intellectual property
indemnification for itself and enforce such indemnification on behalf
of Customer) from the suppliers of such Software. Unless otherwise
approved in advance by Customer, such indemnification shall be
comparable to the intellectual property indemnification provided by
HP-OMS to Customer under this Agreement.
(c) ACTIONS IN CASE OF INFRINGEMENT. In the event that (i) any Materials,
Developed Materials, Hardware or Software provided by HP-OMS or its
Affiliates or HP-OMS Subcontractors pursuant to this Agreement or used
by them in the performance of the Services are found or, based upon a
third party claim or threatened claim of infringement, are likely to
be found, to infringe upon the Intellectual Property Rights,
proprietary or privacy rights of any third party in any country in
which Services are to be performed or received under this Agreement or
(ii) the continued use of such Materials, Developed Materials,
Hardware or Software is enjoined, HP-OMS shall, in addition to
defending, indemnifying and holding harmless Customer as provided in
Section 16 (INDEMNITIES) and to the other rights Customer may have
under this Agreement, promptly and at its own cost and expense and in
such a manner as to minimize the disturbance to Customer's business
activities do one of the following:
(i) OBTAIN RIGHTS. Obtain for Customer the right to continue using
such Materials, Developed Materials, Hardware or Software.
(ii) MODIFICATION. Modify the item(s) in question so that it is no
longer infringing, provided that such modification does not degrade
the performance or quality of the Services or adversely affect
Customer's intended use as contemplated by this Agreement.
(iii) REPLACEMENT. Replace such item(s) with a non-infringing
functional equivalent acceptable to Customer.
(d) IMPACT ON SERVICE LEVELS OF CUSTOMER INFRINGEMENT. If HP-OMS is
prevented by court injunction from using any Hardware and/or Software
as a result of Customer's breach of its obligations under this Section
14.4 (WARRANTIES OF NON-INFRINGEMENT), then HP-OMS shall not be
required to meet the relevant Service Levels to the extent and for as
long as the infringing action prevents HP-OMS from so meeting such
Service Levels, without prejudice to Customer's obligation to pay
HP-OMS the Target Price in respect of the relevant Services.
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14.5 OPERATION OF HP-OMS HARDWARE AND HP-OMS SOFTWARE. HP-OMS does not warrant
that the operation of the HP-OMS Hardware or HP-OMS Software will be
uninterrupted or error free; provided, however, that the foregoing
will not relieve HP-OMS of its obligation to provide Operations
Services in accordance with the Service Levels or to repair or
replace, at its discretion, any HP-OMS Hardware or HP-OMS Software in
order to comply with the terms of this Agreement.
14.6 STATIC AND/OR MOBILE TELEPHONE LINES. HP-OMS shall have no liability
arising out of or in connection with the availability, performance,
non-performance, defective performance, maintenance or otherwise, of
Static and/or Mobile Telephone lines used by Customer to
telecommunicate with third parties.
14.7 SAVINGS CLAUSE. HP-OMS shall not be liable for any delays in performance
of Services or part thereof and/or damages caused and/or failure to
meet the Service Levels to the extent such HP-OMS non-performance is
caused by Customer's (or any third party under Customer's control) act
or omission, but only if (i) HP-OMS provides prompt and reasonable
notification (including by e-mail) to the Customer of such act or
omission and HP-OMS' inability to perform under such circumstances,
(ii) HP-OMS provides Customer with a reasonable opportunity to correct
such act or omission and thereby avoid such HP-OMS non-performance,
and (iii) HP-OMS uses commercially reasonable efforts to perform
notwithstanding Customer's personnel's act or omission, provided that
such act or omission does not constitute a breach of Customer's
contractual obligations hereunder.
14.8 NO OTHER WARRANTIES. The warranties expressly set out in this Agreement
are exclusive and no other warranty, whether written or oral, is
expressed or implied. To the extent permitted by law, HP-OMS specially
disclaims the implied warranty of merchantability fitness for a
particular purpose, title and non-infringement.
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15. INTELLECTUAL PROPERTY RIGHTS
15.1 PRE-EXISTING MATERIALS. All rights of ownership, know how, methodology or
other Intellectual Property Rights in the Materials owned by each
Party prior to the Commencement Date, shall belong to the Party that
owned such Materials immediately prior to the Commencement Date
("CUSTOMER PRE-COMMENCEMENT-OWNED MATERIALS" or "HP-OMS
PRE-COMMENCEMENT-OWNED MATERIALS", respectively).
15.2 OTHER HP-OMS OWNED MATERIALS. HP-OMS shall be the owner of all
Intellectual Property Rights in (i) the Materials acquired by HP-OMS
on or after the Commencement Date (including Materials purchased from
Customer pursuant to this Agreement, subject to Section 20.6(d)
(TRANSFER OF TERMINATION ASSETS ON TERMINATION/EXPIRATION OF
AGREEMENT), (ii) derivative works of HP-OMS Pre-Commencement-Owned
Software created by HP-OMS and not otherwise owned by Customer
pursuant to the terms of this Agreement, (iii) Materials developed by
HP-OMS other than in the course of the performance of its obligations
under this Agreement or in connection with the use of any Customer
Data or Customer Pre-Commencement-Owned Materials (collectively,
"OTHER HP-OMS OWNED MATERIALS") (HP-OMS Pre-Commencement-Owned
Materials and Other HP-OMS Owned Materials collectively, the "HP-OMS
OWNED MATERIALS").
15.3 DEVELOPED MATERIALS. Unless the Parties agree otherwise, and subject to
Section 15.2 (OTHER HP-OMS OWNED MATERIALS) above, all Developed
Materials created by or for HP-OMS in connection with the Services
provided by HP-OMS under this Agreement shall, upon creation, be owned
by Customer and considered to be works made for hire. If any such
Developed Materials may not be considered a work made for hire under
applicable law, HP-OMS hereby irrevocably assigns, and shall assign,
to Customer without further consideration, all of HP-OMS' right, title
and interest in and to such Developed Materials, including
Intellectual Property Rights. HP-OMS agrees to execute any documents
and take any other actions reasonably requested by Customer to
effectuate the purposes of this Section.
15.4 CUSTOMER OWNERSHIP OF CUSTOMER DATA. Customer Data are and shall remain
the property of Customer. HP-OMS shall promptly deliver or provide
Customer access to Customer Data in the format, on the media and in
the timing prescribed by Customer (i) at any time at Customer's
request, or (ii) at the expiration of the Term or termination of this
Agreement and the completion of all requested Termination Assistance
Services. Thereafter, HP-OMS shall return or destroy, as directed by
Customer, all copies of the Customer Data in HP-OMS' possession or
under HP-OMS' control within ten (10) business days and deliver to
Customer written certification of such return or destruction signed by
an officer of HP-OMS. HP-OMS shall not withhold any Customer Data as a
means of resolving any dispute. Customer Data shall not be utilized by
HP-OMS for any purpose other than the performance of Services under
this Agreement. Nor shall Customer Data be sold, assigned, leased,
commercially exploited or otherwise provided to third parties by or on
behalf of HP-OMS or HP-OMS Personnel.
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15.5 SOURCE CODE AND DOCUMENTATION. HP-OMS shall, promptly as it is developed
by HP-OMS, provide Customer with the source code and documentation for
all Customer owned Developed Materials. The source code shall be
sufficient to allow a reasonably knowledgeable and experienced
programmer to maintain and support such Materials; and the user
documentation for such Materials shall accurately describe in terms
understandable by a typical end user the functions and features of
such Materials and the procedures for exercising such functions and
features. Customer may freely use, copy, distribute, create derivative
works of and modify all documentation provided by HP-OMS applicable to
the Developed Materials.
16. INDEMNITIES
16.1 INDEMNITY BY HP-OMS. HP-OMS agrees to indemnify, defend and hold harmless
Customer, its Affiliates and their respective officers, directors,
employees, agents, representatives, successors, and assigns from any
and all Losses relating to third party claims arising from or in
connection with any of the following, all subject to the limitation of
liability as per Section 18 hereunder:
(a) BREACH OF WARRANTIES. HP-OMS' breach of any of its warranties set out
in Section 14 (FUNDAMENTAL OBLIGATIONS; WARRANTIES AND DISCLAIMERS);
(b) THIRD PARTY CONTRACTS. HP-OMS' decision to terminate or breach of
obligations to be performed on or after the Commencement Date by
HP-OMS under any of the Third Party Contracts, including as a result
of HP-OMS' failure to obtain any Required Consents, to the extent
HP-OMS is financially or operationally responsible under this
Agreement;
(c) TAXES. Taxes, together with related interest and penalties, that are
the responsibility of HP-OMS under Section 10.4 (TAXES);
(d) CUSTOMER DATA OR CONFIDENTIAL INFORMATION. HP-OMS' breach of its
obligations with respect to Customer Data or Customer Confidential
Information;
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(e) AFFILIATE OR SUBCONTRACTOR CLAIMS. Any claim, initiated by a HP-OMS
Affiliate, Subcontractor or Personnel asserting rights under this
Agreement; and
(f) EMPLOYMENT CLAIMS. Any claim relating to any: (i) violation by HP-OMS,
HP-OMS Affiliates or HP-OMS Subcontractors, or their respective
officers, directors, employees, representatives or agents, of
applicable law protecting persons or members of protected classes or
categories, including laws or regulations prohibiting discrimination
or harassment on the basis of a protected characteristic; (ii)
liability arising or resulting from the employment of HP-OMS
Personnel, including Transitioned Employees (solely for acts/omissions
occuring prior to the effective date of their employment) by HP-OMS,
HP-OMS Affiliates or HP-OMS Subcontractors; (iii) payment or failure
to pay any salary, wages or other cash compensation due and owing to
any HP-OMS Personnel (including Transitioned Employees from and after
their employment effective dates); (iv) employee pension, benefit
plan, bonus program, vacation benefit, sick leave benefit, tuition
assistance, severance program, medical benefit, stock benefit, stock
option benefit or other benefits of any HP-OMS Personnel (including
Transitioned Employees for benefits accruing from and after their
employment effective dates); and/or (v) other aspects of the
employment relationship of HP-OMS Personnel (including Transitioned
Employees) with HP-OMS, HP-OMS Affiliates or HP-OMS Subcontractors or
the termination of such relationship, including claims for wrongful
discharge, claims for breach of express or implied employment contract
and claims of co-employment or claims based on waivers, releases and
other covenants made by Transitioned Employees with or to HP-OMS.
16.2 INDEMNITY BY CUSTOMER. Customer agrees to indemnify, defend and hold
harmless HP-OMS and its officers, directors, employees, agents,
representatives, successors, and assigns, from any Losses relating to
third party claims arising from or in connection with any of the
following, all subject to the limitation of liability as per Section
18 hereunder:
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(a) BREACH OF WARRANTIES. Customer's breach of any of its warranties set
out in Section 14 (FUNDAMENTAL OBLIGATIONS; WARRANTIES AND
DISCLAIMERS).
(b) THIRD PARTY CONTRACTS. Customer's breach of obligations to be
performed by Customer under any of the applicable Third Party
Contracts to the extent Customer is financially or operationally
responsible under this Agreement;
(c) PRE-COMMENCEMENT DATE MATTERS. Customer's breach of duties or
obligations to be observed or performed or amounts (including deferred
payments for benefits or services received by Customer prior to the
Commencement Date) to be paid for periods prior to the Commencement
Date by Customer under any of the Third Party Contracts assigned to
HP-OMS by Customer pursuant to this Agreement; and
(d) TAXES. Taxes, together with related interest and penalties, that are
the responsibility of Customer under Section 10.4 (TAXES).
(e) AFFILIATE OR SUBCONTRACTOR CLAIMS. Any claim, initiated by a Customer
Affiliate, Customer Contractor or Customer's personnel asserting
rights under this Agreement; and
(f) EMPLOYMENT CLAIMS. Any claim relating to any: (i) violation by
Customer, Customer Affiliates or Customer Contractors, or their
respective officers, directors, employees, representatives or agents,
of applicable law protecting persons or members of protected classes
or categories, including laws or regulations prohibiting
discrimination or harassment on the basis of a protected
characteristic; (ii) liability arising or resulting from the
employment by Customer, Customer Affiliates or Customer Contractors of
their respective employees, including Transitioned Employees (solely
for acts/omissions occuring while employed at Customer, prior to the
effective date of their employment with HP-OMS or its Affiliates);
(iii) payment or failure to pay any salary, wages or other cash
compensation due and owing to any Customer Employees (including
Transitioned Employees prior to their employment effective dates with
HP-OMS or its Affiliates); (iv) employee pension, benefit plan, bonus
program, vacation benefit, sick leave benefit, tuition assistance,
severance program, medical benefit, stock benefit, stock option
benefit or other benefits of any Customer Employees (including
Transitioned Employees for benefits accruing prior to their employment
effective dates); and/or (v) other aspects of the employment
relationship of Customer Employees (including Transitioned Employees
prior to their employment effective dates with HP-OMS or its
Affiliates) with Customer, Customer Affiliates or Customer Contractors
or the termination of such relationship, including claims for wrongful
discharge, claims for breach of express or implied employment contract
and claims of co-employment or claims based on waivers, releases and
other covenants made by Transitioned Employees prior to their
employment effective dates with HP-OMS or its Affiliates.
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00.0 XXXXX, XXXXXX INJURY; TANGIBLE PROPERTY DAMAGE. HP-OMS and Customer each
agree to indemnify, defend and hold harmless the other, and their
respective Affiliates, officers, directors, employees, agents,
representatives, successors, and assigns, from any and all Losses and
threatened Losses arising from or in connection with any of the
following: (a) the death or bodily injury of any agent, employee,
customer, business invitee, business visitor or other person caused by
the negligence or other tortious conduct of the indemnifying Party or
the failure of the indemnifying Party to comply with its obligations
under this Agreement; and (b) the damage, loss or destruction of any
real or tangible personal property caused by the negligence or other
tortious conduct of the indemnifying Party or the failure of the
indemnifying Party to comply with its obligations under this
Agreement.
16.4 INDEMNIFICATION PROCEDURES. With respect to third party claims, the
following procedures shall apply:
(a) NOTICE. Promptly after receipt by any entity entitled to
indemnification under this Agreement of notice of the commencement or
threatened commencement of any civil, criminal, administrative, or
investigative action or proceeding involving a claim in respect of
which the indemnified Party will seek indemnification pursuant to any
such Section, the indemnified Party shall notify the indemnifying
Party of such claim. No delay or failure to so notify an indemnifying
Party shall relieve it of its obligations under this Agreement except
to the extent that such indemnifying Party has suffered actual
prejudice by such delay or failure. Within fifteen (15) days following
receipt of notice from the indemnified Party relating to any claim,
but no later than five (5) days before the date on which any response
to a complaint or summons is due, the indemnifying Party shall notify
the indemnified Party that the Indemnifying Party elects to assume
control of the defense and settlement of that claim (a "NOTICE OF
ELECTION").
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(b) PROCEDURE FOLLOWING NOTICE OF ELECTION. If the indemnifying Party
delivers a Notice of Election within the required notice period, the
indemnifying Party shall assume sole control over the defense and
settlement of the claim; provided, however, that (i) the indemnifying
Party shall keep the indemnified Party fully apprised at all times as
to the status of the defense, and (ii) the indemnifying Party shall
obtain the prior written approval of the indemnified Party before
entering into any settlement of such claim asserting any liability
against the indemnified Party or imposing any obligations or
restrictions on the indemnified Party or ceasing to defend against
such claim. The indemnifying Party shall not be liable for any legal
fees or expenses incurred by the indemnified Party following the
delivery of a Notice of Election; provided, however, that (i) the
indemnified Party shall be entitled to employ counsel at its own
expense to participate in the handling of the claim, and (ii) the
indemnifying Party shall pay the fees and expenses associated with
such counsel if, in the reasonable judgment of the indemnified Party,
based on an opinion of counsel, there is a conflict of interest with
respect to such claim or if the indemnifying Party has requested the
assistance of the indemnified Party in the defense of the claim or the
indemnifying Party has failed to defend the claim diligently. The
indemnifying Party shall not be obligated to indemnify the indemnified
Party for any amount paid or payable by such indemnified Party in the
settlement of any claim if (x) the indemnifying Party has delivered a
timely Notice of Election and such amount was agreed to without the
written consent of the indemnifying Party, (y) the indemnified Party
has not provided the indemnifying Party with notice of such claim and
a reasonable opportunity to respond thereto, or (z) the time period
within which to deliver a Notice of Election has not yet expired.
(c) PROCEDURE WHERE NO NOTICE OF ELECTION IS DELIVERED. If the
indemnifying Party does not deliver a Notice of Election relating to
any claim within the required notice period, the indemnified Party
shall have the right to defend the claim in such manner, as it may
deem appropriate. The indemnifying Party shall promptly reimburse the
indemnified Party for all such costs and expenses incurred by the
indemnified Party, including attorneys' fees.
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16.5 INDEMNITY BY HP-OMS FOR PROFESSIONAL ERRORS AND OMISSIONS. HP-OMS agrees
to indemnify, defend and hold harmless Customer, its Affiliates and
their respective officers, directors, employees, agents,
representatives, successors, and assigns from any and all Losses
arising from or in connection with any of the following, all subject
to the limitation of liability as per Section 18 (LIMITATION OF
LIABILITY) hereunder:
(a) All Losses sustained by Customer due to acts or omissions of HP-OMS,
HP-OMS Personnel (or those acting on their behalf) in the rendering of
their services, and
(b) All Losses relating to third party claims arising from acts or
omissions of HP-OMS, HP-OMS Personnel (or those acting on their
behalf) in the rendering of their services.
17. CONFIDENTIAL INFORMATION
17.1 CONFIDENTIAL INFORMATION. HP-OMS and Customer each acknowledges that the
other possesses and will continue to possess information that has been
developed or received by it, has commercial value in its or its
customer's business and is not in the public domain. Except as
otherwise specifically agreed in writing by the Parties, "CONFIDENTIAL
INFORMATION" means (i) this Agreement and the terms thereof; (ii) all
information marked confidential, restricted or proprietary by either
Party; and (iii) any other information that is treated as confidential
by the disclosing Party and would reasonably be understood to be
confidential, whether or not so marked. In the case of Customer,
Confidential Information also shall include Software provided to
HP-OMS by or through Customer, Developed Materials, Customer Data,
attorney-client privileged materials, attorney work product, customer
lists, customer information and pricing, strategic plans, account
information, research information, trade secrets, financial/accounting
information, human resources and personnel information,
marketing/sales information, information regarding businesses, plans,
operations, third party contracts, internal or external audits, law
suits or other information or data obtained, received, transmitted,
processed, stored, archived, or maintained by HP-OMS under this
Agreement. By way of example, Customer Confidential Information shall
include plans for changes in Customer facilities, business units and
product lines, plans for business mergers, acquisitions or
divestitures, rate information, plans for the development and
marketing of new products, financial forecasts and budgets, technical
proprietary information, employee lists and company telephone or
e-mail directories. In the case of HP-OMS, Confidential Information
shall include financial information, account information, information
regarding HP-OMS' business plans and operations, and proprietary
software (e.g., the HP-OMS Software), documentation, tools and
methodologies owned by HP-OMS and used in the performance of the
Services, trade secrets, financial/accounting information, human
resources and personnel information, marketing/sales information,
information regarding businesses, plans, operations, products, third
party contracts, internal or external audits.
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17.2 OBLIGATIONS.
(a) During the Term of this Agreement and at all times thereafter, HP-OMS
and Customer shall not disclose, and shall maintain the
confidentiality of, all Confidential Information of the other Party.
Customer and HP-OMS shall each use at least the same degree of care to
safeguard and to prevent disclosing to third parties the Confidential
Information of the other as it employs to avoid unauthorized
disclosure, publication, dissemination, destruction, loss, or
alteration of its own like information (or information of its
customers) of a similar nature, but not less than reasonable care.
HP-OMS Personnel shall have access to Customer Confidential
Information only to the extent necessary for such person to perform
his or her obligations under or with respect to this Agreement or as
otherwise naturally occurs in such person's scope of responsibility,
provided that such access is not in violation of applicable law.
(b) The Parties may disclose Confidential Information to their Affiliates,
auditors, attorneys, accountants, consultants, contractors and
subcontractors, where (A) use by such person or entity is authorized
under this Agreement, (B) such disclosure is necessary for the
performance of such person's or entity's obligations under or with
respect to this Agreement or otherwise naturally occurs in such
person's or entity's scope of responsibility, (C) the person or entity
(and its applicable officers and employees) agree in writing to assume
the obligations described in this Section, and (D) the disclosing
Party assumes full responsibility for the acts or omissions of such
person or entity and takes all reasonable measures to ensure that the
Confidential Information is not disclosed or used in contravention of
this Agreement. Any disclosure to such person or entity shall be under
the terms and conditions as provided herein. Each Party's Confidential
Information shall remain the property of such Party.
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(c) Neither Party shall (i) make any use or copies of the Confidential
Information of the other Party except as contemplated by this
Agreement, (ii) acquire any right in or assert any lien against the
Confidential Information of the other Party, (iii) sell, assign,
transfer, lease, or otherwise dispose of Confidential Information to
third parties or commercially exploit such information, including
through derivative works, or (iv) refuse for any reason (including a
default or material breach of this Agreement by the other Party) to
promptly provide the other Party's Confidential Information (including
copies thereof) to the other Party if requested to do so. Upon
expiration or any termination of this Agreement and completion of each
Party's obligations under this Agreement, each Party shall return or
destroy, as the other Party may direct, all documentation in any
medium that contains, refers to, or relates to the other Party's
Confidential Information within ten (10) business days. Each Party
shall deliver to the other Party written certification of its
compliance with the preceding sentence signed by an officer of such
Party. In addition, each Party shall take all necessary steps to
ensure that its employees comply with these confidentiality
provisions.
17.3 EXCLUSIONS. Section 17.2 (OBLIGATIONS) shall not apply to any particular
information which the receiving Party can demonstrate by written
documentation (i) is, at the time of disclosure to it, in the public
domain other than through a breach of the receiving Party's or a third
party's confidentiality obligations; (ii) after disclosure to it, is
published by the disclosing Party or otherwise becomes part of the
public domain other than through a breach of the receiving Party's or
a third party's confidentiality obligations; (iii) is lawfully in the
possession of the receiving Party at the time of disclosure to it;
(iv) is received from a third party having a lawful right to disclose
such information; or (v) is independently developed by the receiving
Party without reference to Confidential Information of the furnishing
Party. In addition, the receiving Party shall not be considered to
have breached its obligations under this Section 17 for disclosing
Confidential Information of the other Party as required, in the
opinion of legal counsel, to satisfy any legal requirement of a
competent government body, provided that, promptly upon receiving any
such request, such Party advises the other Party of the Confidential
Information to be disclosed and the identity of the third party
requiring such disclosure prior to making such disclosure in order
that the other Party may interpose an objection to such disclosure,
take action to assure confidential handling of the Confidential
Information, or take such other action as it deems appropriate to
protect the Confidential Information. The receiving Party shall use
commercially reasonable efforts to cooperate with the disclosing Party
in its efforts to seek a protective order or other appropriate remedy
or in the event such protective order or other remedy is not obtained,
to obtain assurance that confidential treatment will be accorded such
Confidential Information.
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17.4 LOSS OF CONFIDENTIAL INFORMATION. Each Party shall: (i) immediately
notify the other Party of any possession, use, knowledge, disclosure,
or loss of such other Party's Confidential Information in
contravention of this Agreement; (ii) promptly furnish to the other
Party all known details and assist such other Party in investigating
and/or preventing the reoccurrence of such possession, use, knowledge,
disclosure, or loss; (iii) cooperate with the other Party in any
investigation or litigation deemed necessary by such other Party to
protect its rights; and (iv) promptly use all commercially reasonable
efforts to prevent further possession, use, knowledge, disclosure, or
loss of Confidential Information in contravention of this Agreement.
Each Party shall bear any costs it incurs in complying with this
Section 17.4.
17.5 NO IMPLIED RIGHTS. Nothing contained in this Section 17 shall be construed
as obligating a Party to disclose its Confidential Information to the
other Party, or as granting to or conferring on a Party, expressly or
impliedly, any rights or license to any Confidential Information of
the other Party.
17.6 SURVIVAL. The Parties' obligations of non-disclosure and confidentiality
shall survive the expiration or termination of this Agreement for a
period of ten (10) years.
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18. LIMITATION OF LIABILITY
18.1 CAP ON OVERALL LIABILITY. Except as provided in Section 18.3 (EXCEPTIONS
TO LIMITATIONS OF LIABILITY), notwithstanding any provision in this
Agreement and/or any applicable law, and to the extent each Party is
held legally liable to the other under or in connection with this
Agreement, HP-OMS' aggregate liability under this Agreement, for any
reason and upon all claims and causes of action, is hereby limited to
direct damages up to Four Million United States dollars (US
$4,000,000).
18.2 EXCLUSION OF CERTAIN DAMAGE TYPES. IN NO EVENT WILL EITHER CUSTOMER OR
HP-OMS OR THEIR RESPECTIVE AFFILIATES, SUBCONTRACTORS/CUSTOMER
CONTRACTORS AND SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL,
INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION
FOR LOSS OF GOODWILL, LOSS OF SAVINGS OR REVENUE, LOSS OF ACTUAL OR
ANTICIPATED PROFITS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
18.3 EXCEPTIONS TO LIMITATIONS OF LIABILITY.
(a) The limitations of liability set forth in Section 18.1 (CAP ON OVERALL
LIABILITY) shall not apply to amounts paid with respect to (i) third
party claims that are the subject of indemnification under this
Agreement in connection with a breach of a party's obligations under
Section 14.4 (WARRANTIES OF NON-INFRINGEMENT) regarding infringement
of intellectual property rights or in connection with liability under
Section 16.3(a) (DEATH OR BODILY INJURY); or (ii) Direct Losses
occasioned by the wrongful termination of this Agreement by HP-OMS.
18.4 ITEMS NOT CONSIDERED DAMAGES. Charges and other amounts that are due and
owing to HP-OMS for Services performed under this Agreement shall not
be considered damages subject to, and shall not be counted toward the
liability cap specified in Section 18.1 (CAP ON OVERALL LIABILITY).
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18.5 ACKNOWLEDGED DIRECT DAMAGES. Direct costs and expenses incurred (i) to
recover, recreate lost data; (ii) to restore Software; (iii) as a
result of system downtime; (iv) to implement a workaround in respect
of a failure to provide any Services; or (v) to procure the Services
or corrected Services from an alternative source or to bring the
Services in-house, including the costs and expenses associated with
the retention of independent consultants and legal counsel to assist
with any re-sourcing, all to the extent in excess of the prorated
Target Price under this Agreement, shall be considered direct damages
and neither Party shall assert that they are indirect, incidental,
collateral, consequential or special damages or lost profits to the
extent they result directly from either Party's failure to perform in
accordance with this Agreement.
18.6 CONFIDENTIAL INFORMATION; DEATH/BODILY INJURY. Notwithstanding anything
in this Agreement to the contrary, each party shall be entitled to
recover all Losses occasioned by the intentional or grossly negligent
breach of a party's obligations under Section 17 (CONFIDENTIAL
INFORMATION) or all Losses in connection with liability under Section
16.3(a) (DEATH OR BODILY INJURY).
19. INSURANCE
19.1 INSURANCE.
(a) REQUIREMENTS. With respect to performance hereunder both parties agree
to maintain, at all times during the term of this Agreement, the
following minimum insurance coverages and limits and any additional
insurance and/or bonds required by law:
(i) Workers Compensation insurance as required by applicable law.
(ii) Third Party liability insurance, covering legal liability for
physical loss or damage and/or bodily injury occurring to any
person and/or property of any person and/or entity.
(iii) Products liability/completed operations insurance, covering
legal liability for physical loss or damage and/or bodily injury
occurring to any person and/or property of any person and/or
entity.
The (i) Products liability/ completed operations policy and the (ii)
Third Party liability insurance arranged by HP OMS shall be extended
to include the Customer as additional insured in respect of Customer's
liability for negligent acts and/or omissions of HP-OMS and HP-OMS
Personnel subject to Cross Liability clause.
Policies of HP-OMS as described in (b)-(c) below shall be with a
single limit of: $[**] any one occurrence and in all for an annual
insurance period.
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(b) HP OMS undertakes to additionaly arrange the following insurance
policies at all times during the term of this agreement:
Employers Liability insurance, covering the liability of HP OMS
towards its employees, for death, injury or disease occurring during
and/or as a result of their employment, with a limit of $[**] any one
occurrence and in all for an annual insurance period. The policy shall
be extended to include Customer as an additional insured, insofar it
is considered as the employer of any of HP OMS's employees.
(c) APPROVED COMPANIES. All such insurance shall be procured with
reputable insurance companies.
(d) PRIMARY, NON-CONTRIBUTORY POLICIES. Products liability insurance,
third party liability insurance and Employers liability insurance
required by this Agreement from HP-OMS, shall be primary and
non-contributory with respect to other insurance which may be
available to Customer and its affiliates and/or their officers,
directors and employees.
(e) ENDORSEMENTS. The cancellation clause on the certificate of insurance
will be amended to read as follows:
"THE ISSUING COMPANY WILL MAIL 30 DAYS WRITTEN NOTICE TO THE
CERTIFICATE HOLDER PRIOR TO CANCELLATION OR A MATERIAL CHANGE TO
POLICY DESCRIBED ABOVE."
(f) NO IMPLIED LIMITATION. The obligation of the parties to provide the
insurance specified herein shall not limit in any way any of their
obligations or liabilities provided elsewhere in this Agreement.
(g) SUBCONTRACTORS. HP-OMS shall also require all Subcontractors used by
HP-OMS for the provision of the Services to maintain an appropriate
insurance to the extent it is required to maintain under this
contract.
(h) DEDUCTIBLES. The deductible amounts of each insurance policy required
hereunder shall not exceed US$[**] each occurance.
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(i) Both parties shall furnish upon request to the other party annually an
insurance certificate evidencing the above-mentioned insurance
policies, as relevant. Both parties undertake to notify the other
party in advance at least thirty (30) days prior to cancellation or
material change of any of such party's insurance policies detailed in
this Section above.
(j) It is hereby agreed that in respect to coverage provided to Customer
under HP OMS's policies as aforesaid, the limit of liability under the
policies shall in no way exceed the limitation of liability granted to
HP OMS under Section 18 (LIMITATION OF LIABILITY).
19.2 RISK OF LOSS.
(a) GENERAL. Except as otherwise provided in Section 16 (INDEMNITIES),
each Party shall be responsible for risk of loss of, and damage to,
any Hardware, Software or other materials owned by or licensed to such
Party, unless loss or damage is caused by the intentional misconduct
or negligence of the other party. Each Party shall promptly notify the
other of any damage (except normal wear and tear), destruction, loss,
theft, or governmental taking of any item of Hardware, Software or
other materials in the possession or under the control of such Party,
whether or not insured against by such Party, whether partial or
complete, which is caused by any act, omission, fault or neglect of
such Party ("EVENT OF LOSS"). Such Party shall be responsible for the
cost of any necessary repair or replacement of such Hardware, Software
or other materials due to an Event of Loss. For a Customer Event of
Loss, HP-OMS shall coordinate and oversee repair or replacement
performed by a third-party on a Pass-Through Expenses basis, or by
HP-OMS at agreed-upon prices.
(b) WAIVER. Except as provided below, HP-OMS and Customer each waive all
rights to recover against the other Party for damage, destruction,
loss, theft, or governmental taking of their respective real or
tangible personal property (whether owned or leased) from any cause to
the extent covered by insurance maintained by each of them, including
their respective deductibles or self-insured retentions. This waiver
of subrogation shall not extend to the damage, destruction, loss or
theft of real or tangible personal property caused by the negligence
or other tortious conduct of the other Party or the failure of the
other Party to comply with its obligations under this Agreement.
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20. TERM; BREACH; AND TERMINATION
20.1 TERM
(a) INITIAL TERM. The initial term of this Agreement shall commence on the
Commencement Date and continue for six (6) years (the "INITIAL TERM"),
unless terminated earlier in accordance with this Agreement.
(b) EXTENDED TERM. Customer, by notifying HP-OMS in writing at least one
hundred and eighty (180) days prior to the expiration of the Initial
Term, may extend the effectiveness of this Agreement at the then
current Target Price and under the same terms and conditions which
were in effect just prior to such expiration, for a period of up to
twenty-four (24) months (the "EXTENDED TERM").
20.2 TERMINATION FOR CAUSE BY CUSTOMER; OTHER REMEDIES
(a) HP-OMS' FAILURE TO CURE MATERIAL BREACH. The Customer may terminate
this Agreement immediately at any time by written notice to HP-OMS if
HP-OMS is in material breach of any of its obligations under this
Agreement and fails to remedy the breach for a period of thirty (30)
days after a written notice by the Customer specifying the material
breach.
(b) CHANGE OF CONTROL. Customer may terminate this Agreement immediately
upon written notice to HP-OMS in the event that HP-OMS experiences (in
one transaction or any series of transactions) a change of majority
ownership ("CHANGE OF CONTROL"), unless prior to such Change of
Control Customer is notified of such change and (i) Hewlett-Packard
Israel Ltd. agrees in writing to accept an assignment of this
Agreement; or (ii) Customer provides its written consent to such
Change of Control.
(C) GUARANTEE FROM HEWLETT-PACKARD ISRAEL LTD. In addition to its other
rights and remedies against HP-OMS under this Agreement, in the event
of a breach by HP-OMS hereunder, Customer may, at any time, exercise
its rights as a beneficiary to the Guarantee, executed by
Hewlett-Packard Israel Ltd., attached hereto as Exhibit L.
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(d) STEP-IN RIGHTS. Without prejudice to any of the Customer's other
rights:
if any default or non-performance by HP-OMS under this Agreement in
relation to any Service materially affects the performance of any
critical function of the Customer for more than forty-eight (48)
hours, the Customer may, at its option, take control of the relevant
Services and take such other action as is reasonably necessary to
restore the affected function of the Customer or otherwise continue
the provision of the Services ("STEP-IN RIGHTS"). To the extent
Customer exercises its Step-in Rights, HP-OMS shall be released from
its obligation to meet the relevant Service Level (over which Customer
has taken control) solely during the period in which the affected
function is being corrected. Once corrected, HP-OMS shall resume
responsibility for such Service Level. HP-OMS shall co-operate fully
with the Customer and its Customer Contractors, in accordance with
Section 11.5 (HP-OMS COOPERATION); provided, however, that HP-OMS may
require any person or entity which is not a Party to this Agreement to
execute its confidentiality agreement with HP-OMS, in a form which
contains terms substantially similar to the terms set out in Section
17 (CONFIDENTIAL INFORMATION) hereof. Any third party used by Customer
pursuant to this Section shall be deemed a Contractor of Customer.
(e) OTHER REMEDIES. In addition to its rights and remedies under this
Agreement, the each party may exercise all available legal and
equitable remedies (except to the extent such remedies are
inconsistent with the terms of this Agreement), including, but not
limited to, seeking relief for compensation or seeking orders for
declaration, injunctive relief or damages or such other orders and
relief as it may think fit.
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20.3 MUTUAL RIGHT OF TERMINATION. Either Party may terminate this Agreement,
immediately at any time by written notice to the other Party, if the
other Party (or in the event the other Party is HP-OMS, then
Hewlett-Packard Israel Ltd or in the event the other Party is
Customer, then Tecnomatix Technologies Ltd) (i) has a receiver
appointed or an assignee for the benefit of creditors; (ii) is or
becomes insolvent or is unable to pay debts as they become due; (iii)
ceases to trade for a period of sixty (60) days (either in whole or as
to any part or division involved in the performance of this Agreement)
or (iv) ceases to operate in the normal course of business for a
period of sixty (60) days (each of (i)-(iv) above an "INSOLVENCY
EVENT"), unless the Insolvency Event is removed or is no longer in
effect within forty-five (45) days of receipt of the notice of
termination, in which case the initial Insolvency Event shall not be
grounds for termination.
20.4 TERMINATION FOR CAUSE BY HP-OMS. HP-OMS may terminate this Agreement
immediately by written notice to Customer if:
(a) Customer fails to pay any undisputed sums equal to or greater than
twenty percent (20%) of the (then current) quarterly Target Price on
an accumulated basis, due to HP-OMS under this Agreement, on the due
date and such payment is not made within forty-five (45) days after a
written notice requiring the same; and provided that HP-OMS has given
Customer a second written notice of its intention to terminate the
Agreement at least fifteen (15) days (but not more than twenty (20)
days) prior to the expiration of such forty-five (45) day period.
20.5 TERMINATION FOR CONVENIENCE
(a) BY CUSTOMER. The Customer may terminate this Agreement for convenience
by giving HP-OMS at least one hundred and eighty (180) days prior
written notice, such notice not to be given before the end of the
first year and a half following the Commencement Date. On the
effective date of such termination, Customer shall pay to HP-OMS the
Termination Fees and compensation amounts as specified in Exhibit E
hereto.
(b) BY HP-OMS. HP-OMS may terminate this Agreement for convenience by
giving the Customer at least one year's prior written notice, such
notice not to be given before the end of the third year following the
Commencement Date.
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20.6 CONSEQUENCES UPON TERMINATION OR EXPIRATION
(a) RETURN OF HP-OMS OWNED MATERIALS AND OTHER HARDWARE. Upon the
expiration or earlier termination of the Term for any reason
whatsoever, the Customer will return (or relinquish access), within
thirty (30) days of its receipt of HP-OMS' notice to that effect, to
HP-OMS the HP-OMS Owned Materials and HP-OMS owned Hardware, subject
to Section 20.6(d) (TRANSFER OF TERMINATION ASSETS ON
TERMINATION/EXPIRATION OF AGREEMENT), and which are in Customer's
possession or control;
(b) RETURN OF CUSTOMER OWNED MATERIALS. Upon the expiration of the Term or
earlier termination of this Agreement, as the case may be, for any
reason whatsoever, with respect to Materials owned by Customer
(including but not limited to the Customer Pre-Commencement-Owned
Materials and Customer Software obtained by Customer after the
Commencement Date), HP-OMS shall, at no cost to Customer:
(i) deliver to Customer all such Materials in the format and medium
in use by HP-OMS in connection with the Services as of the date of
such expiration or termination; and
(ii) following completion by HP-OMS of any Termination Assistance
Services for which such Materials are required, destroy or securely
erase all copies of such Materials then in HP-OMS' possession and
cease using such Materials for any purpose.
(C) UPGRADED HP-OMS SOFTWARE, THIRD PARTY CONTRACTS; CONTINUING SUPPORT.
Upon the expiration of the Term or earlier termination of this
Agreement for any reason whatsoever:
(i) HP-OMS, unless otherwise agreed in advance by Customer in
accordance with Section 14.2(b) (TRANSFER OF TERMINATION ASSETS
ON TERMINATION/EXPIRATION; THIRD PARTY CONTRACT TERMS),
A. shall deliver to Customer a copy of all HP-OMS Software,
(excluding Software which is part of the Facilities Setup
Assets), upgraded to at least the second to most, if not
the most, updated version of such Software, associated
documentation, and all applicable Third Party Contracts
used by HP-OMS in the provision of the Services (to which
Customer shall receive a license or assignment), in
accordance with Section 14.2(b) (TRANSFER OF TERMINATION
ASSETS ON TERMINATION/EXPIRATION; THIRD PARTY CONTRACT
TERMS); and
B. Except as otherwise expressly set forth in this Agreement
and the exhibits thereto, Customer shall not be obligated
to pay any license fees (associated with any period prior
to the expiration of the Term or earlier termination of
this Agreement for any reason) or transfer fees in
connection with its receipt of the licenses and other
rights specified in this Section (collectively, "TRANSFER
FEES"); provided, however, that where Customer terminates
this Agreement for convenience, (i) Customer shall be
responsible for paying such Transfer Fees, and (ii)
Customer shall be responsible for the actual termination
fees incurred by HP-OMS associated with the termination of
Third Party Contracts. Notwithstanding the foregoing, the
amounts payable under subsections (i) and (ii) shall not
exceed the then applicable quarterly Target Price
payment.
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(d) TRANSFER OF TERMINATION ASSETS ON TERMINATION/EXPIRATION OF AGREEMENT.
In the event of termination of this Agreement for any reason
whatsoever HP-OMS shall transfer the Termination Assets to Customer
and Customer shall purchase such Assets in accordance with the terms
set out in Section 7 (TERMINATION) of Exhibit E.
(e) HARDWARE AND SOFTWARE MAINTENANCE REINSTATEMENT FEES.
(i) HP-OMS shall not terminate any Third Party Contract for the
support or maintenance of HP-OMS Hardware or HP-OMS Software
("THIRD PARTY SUPPORT CONTRACTS"), under which Customer was
receiving support or maintenance just prior to the Commencement
Date without Customer's prior written consent, given in
Customer's sole discretion. For the avoidance of doubt, Customer
may condition its consent on HP-OMS' agreement to pay any third
party maintenance reinstatement fees otherwise chargeable to
Customer to the relevant third party (due to lapse or non renewal
of such support or maintenance), upon expiration of the Term or
earlier termination of this Agreement.
(ii) Without limiting the generality of the foreogoing, where HP-OMS
provides direct support or maintenance for HP-OMS Hardware or
HP-OMS Software, HP-OMS, upon expiration of the Term or earlier
termination of this Agreement, shall continue to provide such
support or maintenance to Customer as part of Termination
Assistance Services, if requested by Customer.
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(f) HARDWARE TRANSFERRED BACK NOT AT PROPER WARRANTY LEVELS. In the event
that HP-OMS transfers to Customer any Hardware included within the
Refreshed Assets, Add-On Assets or New Customer Employee Assets, in
accordance with Section 20.6(d) (TRANSFER OF TERMINATION ASSETS ON
TERMINATION/EXPIRATION OF AGREEMENT) with a remaining warranty period
shorter than the standard warranty period generally maintained by
Customer for such Hardware type (as specified in Exhibit B),
considering the purchase date of such Hardware, HP-OMS shall be
responsible for paying the fees Customer would otherwise pay to a
third party manufacturer to purchase the required additional warranty
service.
(g) HIRING. Customer or its designee shall be permitted to undertake,
without interference from HP-OMS, HP-OMS Subcontractors or Affiliates
to hire, effective after the later of the termination of this
Agreement or completion of any Termination Assistance Services
requested by Customer: (i) any HP-OMS Personnel primarily assigned to
the performance of Services within the 12-month period prior to the
date of expiration of the Term or termination of this Agreement; and
(ii) any former Transitioned Employees. HP-OMS shall waive, and shall
cause HP-OMS Subcontractors and Affiliates to waive, their rights, if
any, under contracts with such personnel restricting the ability of
such personnel to be recruited or hired by Customer or its designee.
Customer or its designee shall have reasonable access to such HP-OMS
personnel for interviews, evaluations and recruitment. Customer shall
endeavor to conduct the above-described hiring activity in a manner
that is not unnecessarily disruptive of the performance by HP-OMS of
its obligations under this Agreement. All such personnel and
Transitioned Employees, if hired by Customer, shall be transferred to
Customer without any employer liabilities, such as severance pay,
vacation, and the like.
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20.7 TERMINATION ASSISTANCE SERVICES
(a) Upon expiration of the Initial Term or Extended Term or earlier
termination of this Agreement for any reason, HP-OMS, at the
Customer's request in writing, shall perform the Termination
Assistance Services as provided herein for a period of up to (as
determined by Customer) twelve (12) months from the effective date of
expiration or termination, as applicable the "TERMINATION ASSISTANCE
PERIOD").
(b) Commencing from the date that is the earlier of six (6) months prior
to the scheduled expiration or termination of this Agreement; or,
where notice of termination for cause has been given under this
Agreement, within fourteen (14) days after the receipt of that notice,
HP-OMS and Customer shall meet regularly and as often as is required
to develop and finalize a transition plan for the orderly transition
of the Services to the Customer or its designee, for approval by the
Customer, at least fourteen (14) days prior to the effective date of
expiration or termination of the Initial Term or Extended Term, as
applicable (the "TRANSITION-OUT PLAN").
(c) The Transition-Out Plan shall set out the obligations to be performed
by each Party in connection with the orderly transition of the
Services to the Customer (including estimates of the resources
required to achieve that transition), or its designee and shall
include, in addition to the requirements set out in this Section,
those matters described in Exhibit M [Termination Assistance
Services].
(d) Termination Assistance Services may include, among other services, any
service or assistance required by Customer for facilitating the
transfer of Operations Services to Customer or to a new service
provider, assistance and training and relocation of Customer Hardware
and Customer Software from HP-OMS sites to Customer Site(s) or new
service provider locations, as indicated by Customer.
(e) As part of the Termination Assistance Services, HP-OMS shall:
(i) do all reasonable things, execute all documents and provide the
Customer with all reasonable assistance, information, forms,
templates and documents which are required to enable services
similar to the Services to be provided to the Customer internally
or by another service provider in a manner which ensures orderly
transition and continuity of service all as more fully described
in Exhibit M [Termination Assistance Services];
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(ii) ensure that Customer receives all current and updated Customer
Data, Customer Databases, manuals, and the current and updated
source and object code of all HP-OMS Software (including Third
Party Software, provided the consent of the third party
licensor has been obtained): (a) on the applicable Hardware
transferred back from HP-OMS, in accordance with this
Agreement; or (b) where Customer does not receive the return of
such Hardware, in accordance with this Agreement, on
appropriate media in a readily useable format, as instructed by
Customer;
(iii) deliver (and not retain any copies thereof) to the Customer all
material forms of:
A. the Customer's Confidential Information;
B. other property of the Customer relating to the Services;
and
C. the current and updated source and object code of the
Customer Software;
in the possession, power or control of HP-OMS or any HP-OMS
Subcontractors, including all backup copies thereof (whether or
not those material forms were created by HP-OMS or HP-OMS
Subcontractors);
(iv) except with the prior consent of the Customer, cease accessing
any of the Customer's systems, electronic or communications
links;
(v) at the Customer's request, continue for a period not exceeding
twelve (12) months after the effective date of Agreement
termination or expiration to supply the Services to the
Customer on the terms and conditions of this Agreement pursuant
to a statement of work to be agreed by both parties which will
specify the scope, time period and other terms and conditions
thereof;
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(vi) provide to the Customer and its designated representatives,
such training in the HP-OMS Software used by HP-OMS in the
provision of the Services, as the Customer may reasonably
request, for a period of up to three (3) months;
(vii) perform the other obligations set out in the Transition-Out
Plan
(f) HP-OMS shall perform the Termination Assistance Services at the lower
of (a) the discounted rates applicable to the Bank of Work Hours, set
out in Exhibit E, Section 3.2 (BANK OF WORK HOURS); or (b) HP-OMS`
then current standard fees for such services. HP-OMS' performance of
Termination Assistance Services is subject to (i) Customer's prior
payment of all undisputed amounts due to HP-OMS under this Agreement
(and all disputed amounts to the Escrow Agent in accordance with
Section 10.5 (ESCROW OF DISPUTED AMOUNTS) up to the date of
termination or expiration of the Initial Term or Extended Term, as
applicable, and (ii) Customer allowing HP-OMS to use reasonably, at no
charge, any Customer resources and Customer Sites required to provide
the Termination Assistance Services.
(g) To the extent HP-OMS provides Termination Assistance Services during
the Initial Term or the Extended Term, the terms and condition of this
Agreement will remain in force, including but not limited to the
Service Levels and the applicable Service Level Credits. If
Termination Assistance Services is provided after the expiration or
termination of the Initial Term or the Extended Term, then Customer
shall be entitled to receive services which are the same or similar to
the Services in accordance with an agreed statement of work and
service levels, based on the Service Levels, subject to the fees
chargeable in accordance with Section 20.7(f) above.
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21. GENERAL
21.1 NON-RESTRICTIVE RELATIONSHIP. Nothing contained in this Agreement
shall be construed as creating a joint venture, partnership or
employment relationship between the Parties, nor shall either Party
have the right, power or authority to create any obligation or duty,
express or implied, on behalf of the other. This Agreement will not be
interpreted as preventing HP-OMS from entering into similar agreements
with others, whether or not in the same industry, subject to Section
5.7(b) (RESTRICTIONS ON PERFORMING SERVICES TO COMPETITORS; CHANGES TO
SYSTEM ADMINISTRATION PASSWORDS).
21.2 SECURITY
(a) PHYSICAL SECURITY. Customer is responsible for the
physical security of the Customer Sites; provided, that HP-OMS
shall be responsible for the safety and physical access and
control of the areas that HP-OMS is using in performing the
Services, and HP-OMS shall not permit any person to have
access to, or control of, any such area unless such access or
control is permitted in accordance with control procedures
approved by Customer or any higher standard agreed to by
Customer and HP-OMS (all to the extent that Customer provides
HP-OMS the physical ability to limit access and control over
such areas). HP-OMS shall be solely responsible for compliance
by HP-OMS Personnel with such control procedures, including
obtaining advance approval to the extent required.
(b) SECURITY PROCEDURES AT CUSTOMER SITES. HP-OMS shall maintain and cause
HP-OMS Personnel to adhere to the operational, safety and security
standards, requirements and procedures then in effect at the Customer
Sites, as such standards, requirements and procedures may be modified
by Customer from time to time (to the extent HP-OMS has received
written notice of such standards, requirements and procedures
or modifications thereof).
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CONFIDENTIAL TREATMENT FROM THE SEC
(c) SAFEGUARDING CUSTOMER DATA.
(i) SAFEGUARDING PROCEDURES. HP-OMS shall establish and maintain
environmental, safety and facility procedures, data security
procedures and other safeguards against the destruction, loss,
unauthorized access or alteration of Customer Data in the
possession of HP-OMS which are in accordance with Customer's
security policy to be established as described in Exhibit D-.
HP-OMS shall provide to Customer backup copies of Customer Data,
in accordance with Customer's backup procedures in effect as of
the Commmencement Date, and Customer shall have the right to
keep such backup copies of the Customer Data in Customer's or a
third party's possession at Customer's expense if Customer so
chooses. HP-OMS shall remove all Customer Data from any media
taken out of service and shall destroy or securely erase such
media. No media on which Customer Data is stored may be used or
re-used to store data of any other customer of HP-OMS or to
deliver data to a third party, including another HP-OMS
customer, unless securely erased. In the event HP-OMS discovers
or is notified of a breach or potential breach of security
relating to Customer Data, HP-OMS will promptly notify Customer
and investigate and remedy the effects of such breach or
potential breach of security.
(ii) RECONSTRUCTION PROCEDURES. As part of the Services, HP-OMS shall
be responsible for developing and maintaining procedures for the
reconstruction of lost Customer Data which arein accordance with
Customer's security policy to be established as described in
Exhibit D-.
(iii) CORRECTIONS. HP-OMS shall correct, at no charge to Customer, any
destruction, loss or alteration of any Customer Data
attributable to the failure of HP-OMS or HP-OMS Personnel to
comply with HP-OMS' obligations under this Agreement.
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21.3 FILE ACCESS. Customer will have unrestricted access to, and the right
to review and retain, all computer or other files containing Customer
Data, as well as all systems and network logs. At no time will any of
such files or other materials or information be stored or held in a
form or manner not immediately accessible to Customer. HP-OMS shall
provide to the Customer all passwords, codes, comments, keys,
documentation and the locations of any such files promptly upon the
request of Customer, including Hardware and Software keys and such
information as to format, encryption (if any) and any other
specifications or information necessary for Customer to retrieve,
read, revise and/or maintain such files.
21.4 PUBLICITY. Without derogating from HP-OMS' confidentiality
obligations, HP-OMS may not use Customer as a reference in marketing
HP-OMS services unless Customer, in its sole discretion, gives its
express prior written consent to the specific case in which HP-OMS
seeks to refer a prospective HP-OMS customer to Customer. For the
avoidance of doubt, Customer's consent to act as a reference to one
prospective HP-OMS customer does not imply Customer's agreement to act
as a reference to any other prospective HP-OMS customers. In addition,
in no event will either Party publicize or disclose to any third
party, without the prior written consent of the other Party, any terms
or conditions of this Agreement, including without limitation, the
fact of its existence, except as required by applicable law.
21.5 NO ASSIGNMENT. Except with respect to HP-OMS' rights regarding the use
of HP-OMS Subcontractors, neither Party may assign any rights or
obligations under this Agreement without the prior written consent of
the other Party; provided, however, that each Party may assign or
transfer any rights and obligations hereunder to its Affiliate,
provided that the assigning Party remains liable hereunder, subject to
Section 20.2(b) (CHANGE OF CONTROL). For the avoidance of doubts:
HP-OMS' issuance of invoices in accordance with Exhibit E to entities
other than Customer shall not be deemed an assignment of Customers
legal undertaking pursuant to this agreement and the exhibits thereto,
to pay all amounts due to HP-OMS, and any non payment of such
invoices, in full or in part, shall be considered as non payment by
Customer, which shall entitle HP-OMS to all remedies and other rights
prescribed by this agreement and by law.
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21.6 FORCE MAJEURE
(a) FORCE MAJEURE EVENT. Performance delays, errors in performance or
non-performance by a Party will be excused to the extent that
performance is delayed or rendered impossible by earthquake,
strike, fire, flood, governmental acts, governmental orders, or
governmental restrictions, or where failure to perform is beyond
a Party's reasonable control (each being a "FORCE MAJEURE EVENT")
except to the extent the non-performing Party is at fault in
failing to prevent or causing such default or delay, and provided
that such default or delay cannot reasonably be circumvented by
the non-performing Party through the use of alternate sources,
workaround plans or other means, and such Party claiming a Force
Majeure Event shall be entitled to a reasonable extension of time
to remedy any such delay or failure to perform. Regular military
reserve duty of HP-OMS Personnel, strike, lockout or labor
dispute involving HP-OMS or a Subcontractor and its own personnel
shall not excuse HP-OMS from its obligations hereunder. The Party
claiming a Force Xxxxxx Event will give the other Party notice as
soon as practically possible after becoming aware of the
occurrence of a Force Majeure Event and will describe at a
reasonable level of detail the circumstances of the Force Majeure
Event, the steps being taken to address such Force Majeure Event,
and how long it is expected to continue. If a Force Majeure Event
prevents delivery of a material portion of the Operations
Services for more than sixty (60) days, Customer, with immediate
effect upon written notice to HP-OMS, may terminate this
Agreement, or may negotiate a Change Request, in accordance with
the procedures set out in Section 11 (CHANGE MANAGEMENT) for
changes to the Agreement. Subject to the foregoing, Customer
shall remain liable to pay HP-OMS such portion of the Target
Price equitably adjusted according to the portion of the
Operations Services which HP-OMS continues to perform in
accordance with the Agreement for the duration of such Force
Majeure Event.
(b) DISASTER RECOVERY. Upon the occurrence of a Force Majeure Event,
HP-OMS shall implement promptly, as appropriate, its disaster
recovery plan and provide disaster recovery services, and shall
periodically update and test such disaster recovery plan, as
described in Exhibit D. The occurrence of a Force Majeure Event
shall not relieve HP-OMS of its obligation to implement its
disaster recovery plan and provide disaster recovery services.
HP-OMS shall provide the disaster recovery services for a
separate fee to be agreed upon the parties.
(c) ALLOCATION OF RESOURCES. Without limiting HP-OMS' obligations
under this Agreement, whenever a Force Majeure Event or disaster
causes HP-OMS to allocate limited resources between or among
HP-OMS' customers and Affiliates, Customer shall receive at least
the same treatment as comparable HP-OMS customers.
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21.7 DISPUTE RESOLUTION PROCESS.
(a) GOVERNANCE. Any dispute between the Parties shall be resolved in
accordance with Exhibit N (GOVERNANCE). HP-OMS and Customer shall each
appoint one or more Project Manager(s) of suitable experience to be
its primary contact(s) to be responsible for performance of this
Agreement according to Sections 5.4 (MANAGEMENT OF HP-OMS PERSONNEL)
and 6.2 (CUSTOMER PROJECT MANAGER(S)) above. The Parties, including
the Project Managers, will meet at mutually agreed times and locations
to discuss issues arising in connection with performance of this
Agreement. In the event there is a dispute, which cannot be resolved
at these review meetings, either party may request in writing that the
Service Account managers of HP-OMS and the Director of Information
Technology of the Customer meet separately within ten (10) days to
resolve the dispute. If the dispute has not been resolved to the
mutual satisfaction of both Parties within ten (10) days of the
meeting, then the dispute shall be referred to the HP-OMS Manager and
the Customer's Manager who have authority to settle the dispute. If
the dispute has not been resolved by these representatives within ten
(10) days of the referral, HP-OMS and Customer will each designate a
senior corporate executive who will meet to resolve the dispute.
(b) MEDIATION.
(i) If the dispute is not resolved within ten (10) days of the
referral, the Parties may exercise their rights under this
Agreement, provided that prior to seeking court action (except in
the event that injunctive relief is required), the Parties shall
make reasonable, good faith efforts to resolve the matter through
nonbonding mediation (without prejudice to either Party's rights
under Section 20 (TERM; BREACH; AND TERMINATION)), according to
the following procedures:
(ii) A single mediator, with the relevant technical and legal
training, shall be appointed by agreement of the Parties; if the
Parties fail to agree upon the mediator within thirty (30) days
of notice of mediation, provided by either Party, the then
president of the Israel Bar Association shall appoint the
mediator. The mediator shall be made aware of the terms hereof
prior to his appointment. The mediation shall be carried on
continuously and completed within forty-five (45) business days
of its commencement (or such other period agreed by the Parties)
(the "MEDIATION PERIOD"). Each Party shall bear its own costs of
participating in the mediation. If after the Mediation Period,
the Parties have still not resolved their dispute, each Party may
seek resolution in accordance with Section 21.16 (GOVERNING Law).
21.8 WAIVER. Neither Party's failure to exercise any of its rights under
this Agreement shall constitute or be deemed to constitute a waiver or
forfeiture of such rights.
21.9 SEVERABILITY. If any term or provision of this Agreement is held to be
illegal or unenforceable, the validity or enforceability of the
remainder of this Agreement shall not be affected.
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21.10 EXHIBITS. The Exhibits attached and listed below are part of this
Agreement:
Exhibit A Services Description
Exhibit B Statement of Work
Exhibit C Service Level Agreement
Exhibit D Transition and Stabilization
Exhibit E Pricing and Pricing Principles
Exhibit F Employee Transfer Agreement
Exhibit G Project Staff and Key Contacts
Exhibit H Customer Sites
Exhibit I HP-OMS Software and Customer Software Categories
Exhibit J Customer Competitors
Exhibit K Guarantee of Tecnomatix Technologies Ltd.
Exhibit L Guarantee of Hewlett-Packard Israel Ltd.
Exhibit M Termination Assistance
Exhibit N Governance
Exhibit O1 Third Party Contracts
Exhibit O2 Not Transferred Third Party Contracts
Exhibit P Escrow Agreement
21.11 SURVIVAL. The following provisions survive termination of this
Agreement: Sections 5.7(b)(1) (RESTRICTIONS ON PERFORMING SERVICES TO
COMPETITORS; CHANGES TO SYSTEM ADMINISTRATION PASSWORDS.) 10 (Price
and Payment), 14.2-14.8 (FUNDAMENTAL OBLIGATIONS; WARRANTIES AND
DISCLAIMERS), 15 (INTELLECTUAL PROPERTY RIGHTS), 16 (INDEMNITIES), 17
(CONFIDENTIAL INFORMATION), 18 (LIMITATION OF LIABILITY), 20 (TERM;
BREACH; AND TERMINATION) and 21.7 (DISPUTE RESOLUTION PROCESS); 21.16
(GOVERNING LAW; JURISDICTION).
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21.12 HEADINGS. The headings in this Agreement are for the convenience of
the Parties only, and are in no way intended to define or limit the
scope or interpretation of the Agreement or any provision hereof.
21.13 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between HP-OMS and Customer, and supersedes any prior or
contemporaneous communications, representations or agreements between
the Parties, whether oral or written, regarding the subject matter of
this Agreement. Either Party's additional or different terms and
conditions shall not apply. The terms and conditions of this Agreement
may not be changed except by an amendment signed by an authorized
representative of each Party.
21.14 CONFLICTS. If there is a conflict among the terms in the various
documents within this Agreement:
(a) to the extent the conflicting provisions can reasonably be
interpreted so that such provisions are consistent with each
other, such consistent interpretation will prevail; and
(b) to the extent clause (a) above does not apply, the following
order of precedence shall prevail:
i) this Agreement (exclusive of its attachments) will
prevail over a conflicting term in its Exhibits; and
ii) an Exhibit will prevail over a conflicting term in its
Appendices.
21.15 NOTICES. All notices that are required to be given under this
Agreement shall be in writing and shall be sent to the address of
HP-OMS and Customer recipient set out below. For the purposes of this
Section the address of each Party shall be:
CUSTOMER: Tecnomatix Ltd
Attention: Director of IT
Address: 00 Xxxxxxx Xxxxxx, Xxxxxxx Pituach, Israel
Telephone: x000-0-0000000
Facsimile: x000-0-0000000
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WITH A COPY OF ALL DEFAULT NOTICES TO: CUSTOMER'S LEGAL COUNSEL at the
above address
HP-OMS: HP-OMS-COMPAQ (Israel) Ltd.
Attention: Project Manager - Tecnomatix
Address: 9 Dafna St. Ra'anana
Telephone: 00-0000000
Facsimile: 09-7425155
WITH A COPY OF ALL DEFAULT NOTICES TO:
Attention: HP-OMS Legal Counsel, at the above address
Unless specified otherwise in this Agreement, when HP-OMS or Customer is
required to provide written notice to the other, such notice will be deemed
given upon the earlier of:
[i] the day of receipt, if delivered in person or electronically;
[ii] the day of receipt, if delivered by facsimile, upon confirmation of
transmission, provided that a confirmatory copy is sent by first
class pre-paid mail, overnight courier, or hand delivery by the end
of the next business day.
[iii] one (1) business day after being given to an express courier with a
reliable system for tracking delivery; or
[iv] three (3) business days after the date of mailing, when using local
postal services, registered or certified mail, return receipt
requested, postage prepaid.
21.16 GOVERNING LAW; JURISDICTION. This Agreement shall be governed by and
construed in accordance with the laws of Israel. Subject to Section
21.7 (DISPUTE RESOLUTION PROCESS), any dispute, controversy or claim
arising out of or relating to this Agreement or the breach,
termination or validity thereof shall be exclusively and finally
settled in the competent courts in Tel Aviv, Israel.
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IN WITNESS WHEREOF, HP-OMS AND CUSTOMER, EACH ACTING WITH PROPER AUTHORITY, HAVE
CAUSED THIS AGREEMENT TO BE EXECUTED AS OF THE DATE SET FORTH BELOW.
Made in Israel, in two original counterparts, each Party receiving its own.
SIGNED FOR AND ON BEHALF OF SIGNED FOR AND ON BEHALF OF
TECNOMATIX LTD HP-OMS-COMPAQ (ISRAEL)
LTD
By: /s/ Harel Beit-On___________ By: /s/ Xxxxx Xxxxxx
Name: Harel Beit-On_______________ Name: Xxxxx Xxxxxx
Title: Chairman & CEO______________ Title: HPS Country Manager____
Date: 30.10.2003__________________ Date: 30.10.2003
By: /s/ Efrat Safran____________ By: /s/ Xxxxxx Xxxxx
Name: Efrat Safran________________ Name: Xxxxxx Xxxxx
Title: General Counsel_____________ Title: HP-OMS General Manager
Date: 30.10.2003__________________ Date: 30.10.2003
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AGREEMENT AMENDMENT NO. 1
EFFECTIVE AS OF THE 29TH DAY OF DECEMBER 29, 2003
By and Between TECNOMATIX LTD.
00 Xxxxxxx Xxxxxx
Xxxxxxx Pituach
Israel
("CUSTOMER")
And HP-O.M.S. (ISRAEL) LTD.
0 Xxxxxx Xxxxxx
Xx'xxxxx
Xxxxxx
("HP-OMS")
WHEREAS The parties have signed an Agreement on October 30th 2003
("Main Agreement") for the provision of global IT
outsourcing services to Customer by HP-OMS; and
WHEREAS The parties wish to amend the Main Agreement to include
the following changes as stated hereunder:
NOW THEREFORE, THE PARTIES HAVE AGREED AS FOLLOWS:
1. The Preamble to this Amendment shall constitute an obligatory and
inseparable part thereof.
2. This Amendment shall constitute an obligatory and inseparable part of
the Main Agreement.
3. The definition or interpretation of all the terms stated in this
Amendment shall be as stated in the Main Agreement, unless stated
otherwise herein or understood to mean otherwise in the context of
this Amendment.
4. It is agreed that Section 2.5 (b) of the Main Agreement shall be
changed to read as follows:
"(b) Without derogating from subsection (a) above, Customer and HP-OMS
shall cooperate with each other to achieve their mutual goal of
obtaining Government Approval as soon as possible, but not later
than February 15, 2004. In the event that the Customer fails to
obtain Government Approval by February 15, 2004, the parties, in
good faith, shall use their best commercial efforts to resolve
the matter to obtain such approval on an expedited basis."
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5. All other terms and conditions of the Main Agreement shall remain
unchanged.
This Amendment shall be valid as of the date of signature by both the
parties hereto.
AS WITNESS, THE PARTIES HAVE HEREBY SIGNED THIS AMENDMENT :
TECNOMATIX LTD. HP-O.M.S. (ISRAEL) LTD.
/s/ Harel Beit-On /s/ Xxxxx Xxxxxx
______________________________ _______________________________
Signature(s) of Authorized Signature(s) of Authorized
Signatory(ies) Signatory(ies)
Harel Beit-On Xxxxx Xxxxxx
_______________________________ ______________________________
Name(s) of Authorized Signatory Name(s) of Authorized Signatory
(ies) (ies)
/s/ Xxxx Xxxxxxxxx
______________________________
Signature(s) of Authorized
Signatory(ies)
Xxxx Xxxxxxxxx
_______________________________
Name(s) of Authorized Signatory
(ies)
Date: December 29, 2003 Date: December 29, 2003
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--------------------------------------------------------------------------------
AGREEMENT AMENDMENT NO. 2
--------------------------------------------------------------------------------
MADE AS OF THE 25TH DAY OF FEBRUARY 2004
BETWEEN HP-OMS (ISRAEL) LTD.
0 XX'XXXXX XXXXXX
XX'XXXXX , XXXXXX
("HP-OMS")
AND HEWLETT-PACKARD (ISRAEL) LTD.
0 XX'XXXXX XXXXXX
XX'XXXXX , XXXXXX
("HP")
AND TECNOMATIX LTD.
00 XXXX XXXX XXXXXX,
XXXXXXX XXXXXXX, XXXXXX
("CUSTOMER")
WHEREAS, Customer and HP-OMS entered on October 30, 2003 into a
SERVICES AGREEMENT FOR HP-OMS OPERATIONS SERVICES (the
"AGREEMENT"); and
WHEREAS, the parties entered on December 29, 2003 into Amendment
No. 1 to the Agreement (the Agreement and all Exhibits
thereto, as previously amended by Amendment No. 1, shall
be referred to herein as the "SERVICES AGREEMENT"); and
WHEREAS, Customer desire that HP-OMS shall assign the Services
Agreement and all of HP-OMS' rights and obligations
thereunder to HP; and HP-OMS and HP agree to such assignment;
and
WHEREAS, the parties wish to further amend and/or clarify certain
provisions in the Services Agreement as set forth herein.
NOW, THEREFORE, in consideration of the covenants, promises and representations
set forth herein, the parties agree as follows:
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
1. Unless otherwise defined herein, capitalized terms used in this Amendment
No. 2 shall have the meaning ascribed to them under the Services Agreement.
2. HP-OMS hereby assigns the Services Agreement and all its rights and
obligations thereunder to HP, its parent company, and HP hereby accepts
such assignment and agrees to be bound and obligated by all the terms and
conditions of the Services Agreement.
As used in this Agreement, unless expressly otherwise stated or evident in
the context, the term "HP-OMS (Israel) Ltd" shall be replaced by
"Hewlett-Packard (Israel) Ltd." and the term "HP-OMS" shall be replaced by
"HP".
3. Customer agrees that HP may engage and use the services of HP-OMS as a
subcontractor to provide the Services under the Services Agreement to
Customer.
4. The parties hereby declare and acknowledge that all the conditions
precedent included in Section 2.5 of the Services Agreement have been fully
satisfied and fulfilled. HP-OMS and HP specifically declare that they have
received the approval of HP Corporate to the Services Agreement and to this
Amendment No. 2. Notwithstanding anything to the contrary in the Services
Agreement, the Effective Date of the Services Agreement shall be, for all
intents and purposes, the signature date hereof and the Commencement Date
shall be May 1, 2004.
5. Sub-section (b) of Section 20.2 of the Services Agreement (TERMINATION FOR
CAUSE BY CUSTOMER; OTHER REMEDIES) shall be amended to read in its entirety
as follows:
(B) "CHANGE OF CONTROL. Customer may terminate this Agreement immediately
upon written notice to HP in the event that HP experiences (in one
transaction or any series of transactions) a change of majority
ownership, following which the majority ownership of HP shall be held
by a third party other than Hewlett Packard Company or an entity
Controlled by it ("CHANGE OF CONTROL"), unless prior to such Change of
Control Customer is notified of such change and (i) Hewlett-Packard
Volendam B.V. or any other entity within the Hewlett Packard Company
Group, which is approved by Customer, agrees in writing to accept an
assignment of this Agreement; or (ii) Customer provides its written
consent to such Change of Control."
6. Sub-section 20.2(c) of the Services Agreement (GUARANTEE FROM
HEWLETT-PACKARD ISRAEL LTD.) shall be deleted from the Services Agreement
in its entirety.
7. Section 20.3 of the Services Agreement (MUTUAL RIGHT OF TERMINATION) shall
be amended to read in its entirety as follows:
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"MUTUAL RIGHT OF TERMINATION. Either Party may terminate this
Agreement, immediately at any time by written notice to the other
Party, if the other Party (or in the event the other Party is
Customer, then Tecnomatix Technologies Ltd.) (i) has a receiver
appointed or an assignee for the benefit of creditors; (ii) is or
becomes insolvent or is unable to pay debts as they become due; (iii)
ceases to trade for a period of sixty (60) days (either in whole or as
to any part or division involved in the performance of this Agreement)
or (iv) ceases to operate in the normal course of business for a
period of sixty (60) days (each of (i)-(iv) above an "INSOLVENCY
EVENT"), unless the Insolvency Event is removed or is no longer in
effect within forty-five (45) days of receipt of the notice of
termination, in which case the initial Insolvency Event shall not be
grounds for termination."
8. The words "Exhibit L Guarantee of Hewlett-Packard Israel Ltd." shall be
deleted from Section 21.10 of the Services Agreement.
9. Exhibit L (Guarantee of Hewlett-Packard Israel Ltd.) shall be omitted from
the Services Agreement.
10. On the Commencement Date and as a security for satisfying its obligations
for payment under the Services Agreement of the applicable portions of the
Target Price due to HP in each of the first three full quarters of the Term
beginning July 1, 2004 (each a "QUARTERLY PAYMENT"), Customer shall deposit
with HP three checks made by Customer to the benefit of HP at the estimated
amounts due for each such three Quarterly Payments. The three security
checks shall be dated August 15, 2004 (the "FIRST CHECK"), November 15,
2004 (the "SECOND CHECK") and February 15, 2005 (the "THIRD CHECK")
(collectively referred to as the "CHECKS"). For the avoidance of doubt it
is clarified that payment by HP to Customer of the one time fee in the
amount of US$[**] (Section 2.3 of Exhibit E) shall be subject to Customer
depositing the Checks as stipulated herein.
HP may only deposit and cash the Checks in the event that Customer fails to
pay to HP the applicable Quarterly Payment, in whole or in part, on its due
date. In the event that HP deposits any of the Checks due to partial
non-payment by Customer of the applicable Quarterly Payment, it is agreed
that concurrently with the deposit of such Check HP shall deposit with
Customer's bank account an amount equal to the difference between (i) the
amount that was paid by Customer plus the amount of the Check to be
deposited by HP and (ii) the Quarterly Payment. Thus, the equation for the
settlement between the parties shall be:
A+B-C =X.
A = Amount that was paid by Customer; B = Amount of the Check; C =
Quarterly Payment; and X = Amount to be deposited by HP in the account of
Customer.
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Under no circumstances shall the First Check, the Second Check and the
Third Check be used to secure and/or be deposited and cashed by HP to
satisfy the payment of any amount due by Customer to HP under the Services
Agreement or otherwise other than the respective Quarterly Payment during
the Term.
It is hereby specifically agreed that HP shall return to Customer the First
Check, the Second Check and the Third Check within four (4) business days
after the full payment by Customer of the respective Quarterly Payment.
11. This Amendment No. 2 shall be deemed for all intents and purposes as an
integral part of the Services Agreement. The Services Agreement and this
Amendment No. 2 constitute the entire agreement of the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements
and undertakings, both written and oral, between the parties hereto with
respect to the subject matter hereof.
12. This Amendment No. 2 may be executed in one or more counterparts, and by
the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Amendment by telecopier shall be
effective as delivery of a manually executed counterpart of this Amendment
No. 2.
- SIGNATURE PAGES FOLLOW -
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to the
Services Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
SIGNED FOR AND ON BEHALF OF SIGNED FOR AND ON BEHALF OF
TECNOMATIX LTD. HP-OMS (ISRAEL) LTD.
By: /s/ Harel Beit-on By: /s/ Xxxx Xxxxx
--------------------- ------------------
Name: Harel Beit-On Name: Xxxx Xxxxx
Title: Chairman of the Board Title: Chairman of the Board
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxx Xxxxxx
------------------- --------------------
Name: Xxxxx Xxxxx Name: Xxxxx Xxxxxx
Title: President and CEO Title: Director and HP Israel Services
General Manager
SIGNED FOR AND ON BEHALF OF
HEWLETT-PACKARD ISRAEL LTD.
By: /s/ Xxxx Xxxxx
------------------
Name: Xxxx Xxxxx
Title: General Manager
5
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CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A
Service Description
V 7.0
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
DOCUMENT INFORMATION
Project Manager: Xxx Xxx
---------------------------- ---------------------------------------------------
Customer Project Na'ama Halperin
Manager
Prepared by:
Document Version No. : V 7.0
Preparation Date: 26.10.2003
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
INDEX
Document Information 2
1 GENERAL.................................................................... 5
1.1 Scope of Document...................................................... 5
1.2 Definitions............................................................ 5
1.3 General Customer Responsibilities...................................... 6
1.4 General HP-OMS Responsibilities........................................ 7
2 WORKSTATION ENVIRONMENT SERVICE (WES) DESCRIPTION.......................... 8
2.1 Service Description.................................................... 8
2.2 Service Items.......................................................... 9
2.2.1 Incident Resolution................................................ 9
2.2.2 Hardware Installations............................................. 9
2.2.3 Software, Operating System (OS) and Standard Image Installation... 10
2.2.4 Install, Move, Add and Change (IMAC).............................. 10
2.3 Roles and Responsibilities............................................ 10
3 SERVER MANAGEMENT SERVICE DESCRIPTION..................................... 12
3.1 Scope................................................................. 12
3.1.1 Server Operations & Management Model.............................. 12
3.1.2 Customer is Responsible to Manage the Application Layer (CAD &
Development tools) (Variant A)........................................... 13
3.1.3 Customer is not Responsible to Manage the Business IT Application
(Clarify) (Variant B).................................................... 14
3.1.4 Customer is Responsible to Manage the Business IT Application
(SUN, Xxxxx Xxxx) (Variant C)............................................ 14
3.1.5 The Customer is not Responsible to Manage Back Office Servers
(File Servers, Exchange, IIS, etc.) (Variant D).......................... 15
3.2 Server Service Description............................................ 15
3.2.1 Customer Site Documentation....................................... 15
3.2.2 Service Items - Release to Production............................. 15
3.2.2.1 Server Hardware Installation.................................. 16
3.2.2.2 Server Operating System (OS) Installation..................... 16
3.2.2.3 Server Backup Setup........................................... 16
3.2.2.4 Monitoring Setup.............................................. 16
3.2.3 Service Items - Operations Management............................. 17
3.2.3.1 General OS Administration..................................... 17
3.2.3.2 Service Restoration (Incident Resolution)..................... 18
3.2.3.3 Backup........................................................ 19
3.2.3.4 Restore....................................................... 20
3.2.3.5 UPS........................................................... 21
3.2.4 Service Items - Service Management -> Security.................... 22
3
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
3.2.4.1 Security General.............................................. 22
3.2.4.2 Scope Exclusions.............................................. 22
3.2.4.3 Responsibilities.............................................. 22
3.2.4.4 Periodic Password Changes..................................... 23
3.2.4.5 Security Patch Management..................................... 23
3.2.4.6 Windows Servers Security Management........................... 24
3.2.4.7 Operational Criteria.......................................... 26
3.2.5 Security Audits................................................... 26
3.2.6 Privileged Access (Administrative Access)......................... 26
3.2.6.1 Security Policies............................................. 27
4 UNIX MANAGEMENT SERVICE DESCRIPTION...................................... 28
4.1 Service Items........................................................ 29
4.1.1 Incident Resolution............................................... 29
4.1.2 Hardware Installations............................................ 29
4.1.3 Software, Operating System and Image Installation................. 29
4.2 Roles and Responsibilities........................................... 29
5 BUSINESS APPLICATION SUPPORT............................................. 30
5.1 Scope................................................................ 30
Customer and HP-OMS Will Mutually Review the service every 6 Months........ 30
5.2 Service Items........................................................ 30
5.2.1 Application Support............................................... 30
Excluded:................................................................ 31
6 NETWORK MANAGEMENT SERVICE DESCRIPTION................................... 32
6.1 Service Items........................................................ 32
6.1.1 Management of Hubs, Switches and Routers.......................... 32
6.1.2 Dns Management.................................................... 32
6.1.3 Ip Management..................................................... 33
6.1.4 VPN Management.................................................... 34
6.1.5 DHCP Management................................................... 34
6.1.6 RAS Management.................................................... 35
6.1.7 Firewall Management............................................... 35
6.2 Assumptions / Requirements........................................... 36
7 PROCUREMENT AND IT ADMINISTRATIVE SUPPORT................................ 37
7.1 Procurement Services................................................. 37
7.2 It Administrative Services........................................... 38
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
1 GENERAL
1.1 SCOPE OF DOCUMENT
This Exhibit A is attached to the Master Services Agreement, dated as of
[_____________] 2003 by and between HP-OMS and Customer (the "Agreement") and
made a part thereof by reference. Capitalized terms not otherwise defined herein
shall have the meaning specified in the Agreement.
This document presents the provision of the Services provided by HP-OMS to the
Customer. The Services will be provided following the "Transition and
Stabilization Phases" at each Customer Site as described in EXHIBIT D.
1.2 DEFINITIONS
HP-OMS will provide the Services under this Agreement in the following support
levels. The support levels are described from the highest level (Full Support)
to the lowest level (Special Support):
LEVEL OF SUPPORT LEVEL SUPPORT LEVEL DESCRIPTION
SUPPORT TYPE
------------- --------------------- -------------------------------------------------------------
1 FULL SUPPORT Means all support and maintenance Services, including,
operating, managing, supporting, installing, updating,
moving, adding, deleting HP-OMS Hardware and HP-
OMS Software, and any related Third Party Contracts
within HP-OMS Hardware and HP-OMS Software; as well
as application configuration and application support and
related Third Party Contracts within HP-OMS Hardware
and HP-OMS Software.
2 MAKE IT WORK Means support and maintenance Services required to
SUPPORT ensure that the infrastructure levels are operating and the
Customer can utilize the
applications within the HP-OMS
Software, Customer Software and
the Customer's proprietary
Software.
3 SPECIAL SUPPORT Means support Services required to ensure that the
Customer can utilize software or hardware that no longer
supported by its original manufacture. HP-
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
LEVEL OF SUPPORT LEVEL SUPPORT LEVEL DESCRIPTION
SUPPORT TYPE
------------- --------------------- -------------------------------------------
OMS will provide for such incidents support
services and maintenance required to ensure
that all the infrastructure levels are
operating and the Customer can utilize the
applications within the HP-OMS Software,
Customer Software and the Customer's
proprietary Software. Due to the nature of
these incidents they will not be defined by
SLA commitment.
"IT ENVIRONMENT" means all HP-OMS Hardware, HP-OMS Software, Customer Software,
Customer's proprietary Software and any Hardware or Software under Third Party
Contracts.
"IT DEVELOPMENT ENVIRONMENT" means all HP-OMS Hardware and Customer Software and
Customer's proprietary Software.
1.3 GENERAL CUSTOMER RESPONSIBILITIES
Customer shall have the following responsibilities in connection with the
Services:
o Provide access to basic site amenities (cafeterias, coffee rooms, vending
services, etc.) at Customer Sites at the same level as is available to
the Customer's employees, in accordance with the Agreement.
o Provide HP-OMS Personnel with necessary access to all physical sites.
o Provide access to its IT infrastructure (Servers, Network Routers, etc.).
o Provide HP-OMS a list of contacts that are authorized to raise requests,
to receive notification for pre-defined events or for notification and
escalation of incidents. (Contact list);
o Co-operating with HP-OMS with necessary activities to resolve problems
(e.g. testing, onsite help, etc.).
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
1.4 GENERAL HP-OMS RESPONSIBILITIES
HP-OMS shall have the following responsibilities in connection with the
Services:
o Manage, administer and maintain all Third Party Contracts, including
contracts between Customer and third parties for the maintenance of
Hardware included within Add-On Assets that have not been transferred to
HP-OMS. The Services for the Third Party Contracts will be provided as
detailed in the contracts. .
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
2 WORKSTATION ENVIRONMENT SERVICE (XXX) DESCRIPTION
2.1 SERVICE DESCRIPTION
The scope of this Section (2) relates to the desk side of the HP-OMS Hardware
and the related IT Environment, including XXX support for all devices (i.e.
workstation PCs, portable PCs, printers, scanners, etc.). The parties will
cooperate to achieve standardization of Customer's workstation environment,
however, it is acknowledged that where Customer's requirements are for
non-standardized workstations, HP-OMS shall continue to support such
environments at a level of support which is at least as high as the Service
Levels applicable to standardized workstations. The workstation environment
service components are defined in Exhibit B (SECTION 6 - SERVICE COMPONENTS).
HP-OMS is responsible for the desk side support of all workstations and
peripheral devices in the IT Environments, as well as for support of software
applications running on these workstations. All workstations and peripheral
devices in the IT Environment will be supported at least at the software,
hardware and operating system ("OS") levels.
The operating idea of "XXX" is high-quality support of the user's workstation
environment, in accordance with Service Levels. The service includes tasks to
support, assist and advise the users in order for them to gain the greatest
possible benefits from their workstations and the applications they use.
TASK DESCRIPTION:
o Trouble-shooting and fault repair of problems (desk side support)
involving the workstation environment (e.g. updates of virus definition
file)
o Repair of workstations hardware.
o Installation, maintenance, updating and removal of the supported software
listed in Exhibit B (SECTION 6.2 - XXX ENVIRONMENT SUPPORT)
o Receipt of all fault notifications and work requests related to the
workstation management through HP-OMS's Ticketing System, as well as
relaying them to the agreed responsible organizations, in accordance with
Exhibit B.
o Full Support for HP-OMS Software in the IT Environment;
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
o Make It Work Support for Customer Software and Customer proprietary
Software in the IT Environment;
o Hardware installation of new equipment
o Full responsibility for Hardware maintenance, which will meet or exceed
the applicable Service Levels
o Software distribution/installation
o Network support
o Configuration of software and hardware according to Exhibit B
(SECTION 6 - SERVICE COMPONENTS).
o Support of workstation scripts, e.g., user Login scripts
o Installation and removal of Customer Software
THE FOLLOWING ITEMS ARE OUT OF SCOPE OF SERVICES TO BE PROVIDED BY HP-OMS FOR
THE CUSTOMER THROUGHOUT THIS AGREEMENT:
o Individual backups
o Personal software (end users-owned non standard software) installation
and support - i.e. games, digital camera applications, etc.
o PBX, telephony & voice mail support and management
o Software application content (Web, etc.)
o Software development not related to the support work (e.g. Customer's
proprietary Software)
o Consumables (e.g. printer ink, paper)
2.2 SERVICE ITEMS
2.2.1 INCIDENT RESOLUTION
o Troubleshooting and problem solving, in accordance with Exhibit B
(SECTION 5 INCIDENT MANAGEMENT), in the IT Environment regarding events
concerning hardware (e.g. workstations, peripherals, etc.), software and
network.
2.2.2 HARDWARE INSTALLATIONS
o Installation / setup of hardware
Comprises all of the tasks included in the hardware installation for
end-users (desktop, laptop, printer, peripherals, etc.). A detailed
description of "Hardware Support" tasks is listed in Exhibit B (SECTION
6.3 - HARDWARE SUPPORT).
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
2.2.3 SOFTWARE, OPERATING SYSTEM (OS) AND STANDARD IMAGE INSTALLATION
o Installation and update of software, operating system and standard
images.
A detailed description of tasks is listed in Exhibit B (SECTION 6.2 - XXX
ENVIRONMENT SUPPORT).
2.3.4 INSTALL, MOVE, ADD AND CHANGE (IMAC)
o A detailed description of tasks is listed in Exhibit B (SECTION 6.2 - XXX
ENVIRONMENT SUPPORT).
2.3 ROLES AND RESPONSIBILITIES
HP-OMS RESPONSIBILITIES
o Document, qualify and route the requests and events under HP-OMS
responsibility to the correct support resource and escalate when
necessary.
o Regularly update the Customer regarding the status of incidents and the
progress made towards their resolution.
o Notify the Customer Employee who reported the relevant incident.
o Immediately inform the Customer's Project Manager in writing of any
incident report which HP-OMS considers to be outside of the scope of
Services (or which is subject to the Change Management Process).
o Monitor open incidents to ensure the progression towards end-user
satisfaction.
o Manage incident resolution as defined in the Exhibit B (SECTION 5 -
INCIDENT MANAGEMENT).
o Propose the implementation of necessary changes through the Change
Management process for events requiring solutions outside the scope of
this agreement, subject to Customer's approval in its sole discretion.
o Notify Customer IT management about incidents that have exceeded
escalation thresholds.
o Maintain the necessary maintenance contracts and contacts with third
parties suppliers.
o Perform service recovery in the event of service down and restore the
service to its pre- break down situation.
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
CUSTOMER RESPONSIBILITIES
o Supply the necessary known information required to access application
support team as well as third party contacts, if maintained by Customer.
o Inform HP-OMS of planned changes to user numbers or site locations to
ensure there will not be any degradation of service (Change Management).
o Approve technical service recovery solution (fix or detour) in case of
service down
o Help HP-OMS enforce OS and application language standards as agreed by
HP-OMS and the Customer during the Transition and Stabilization Phases.
o Customer is obligated to provide software licenses for all the software
currently in use. If there is more software installed then the amount of
licenses provided, it is upon the Customer to decide on one of the
following options:
a. Purchase the necessary number of software licenses to be compliant
or,
b. Uninstall the unlicensed software at the Customer's expense.
JOINT RESPONSIBILITIES
o HP-OMS will work with Customer to define and validate PC Software images
to be used by end-users.
o HP-OMS and Customer will record incident ID (Work reference number) for
further reference.
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
3 SERVER MANAGEMENT SERVICE DESCRIPTION
3.1 SCOPE
The service description provides a specification of the server management
services HP-OMS will deliver to Customer.
HP-OMS will provide Full Support of the Customer's servers, and services running
on such servers (not included R&D services), in the IT Environment with a high
degree of availability of service for the end user, in accordance with the
Service Levels set out in Exhibit C.
3.11 SERVER OPERATIONS & MANAGEMENT MODEL
The following Management Model represents the typical levels of responsibility
for the operation of the Customer's environment. It describes the overall system
from the business process level through to the IT infrastructure, and defines
the responsibilities for the Customer and HP-OMS at the various layers.
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
LAYER 1 comprises the hardware services. This includes the elimination of
hardware faults and updating hardware, e.g. firmware.
LAYER 2 comprises the network services. This includes management of hubs /
switches / routers and related administrative tasks excluding passive network.
LAYER 3 comprises the services that ensure availability of the operating system
at a defined service level.
LAYER 4 represents the base operation of the application.
LAYER 5 represents the administration of the database.
LAYER 6 represents the services, which refer to the specifics of the application
and organization of the Customer.
LAYER 7 contains the business processes of the Customer.
3.1.2 CUSTOMER IS RESPONSIBLE TO MANAGE THE APPLICATION LAYER (CAD &
DEVELOPMENT TOOLS) (VARIANT A)
The Customer is responsible to manage the application layer. This results in the
following division of responsibilities:
HP-OMS RESPONSIBILITIES
o Hardware
o Network
o Operating System
o Application Infrastructure
o Database Management (make it work)
CUSTOMER RESPONSIBILITIES
o Database Management
o Application management
o All components above the application infrastructure level
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
3.1.3 CUSTOMER IS NOT RESPONSIBLE TO MANAGE THE BUSINESS IT APPLICATION
(CLARIFY) (VARIANT B)
The Customer is not responsible to manage the application layer. This results in
the following division of responsibilities:
HP-OMS RESPONSIBILITIES
o Hardware
o Network
o Operating System
o Application Infrastructure
o Database Management
o Application Management
CUSTOMER RESPONSIBILITIES
o All components above the application management level
o Content of Business IT applications
3.1.4 CUSTOMER IS RESPONSIBLE TO MANAGE THE BUSINESS IT APPLICATION (SUN, XXXXX
XXXX) (VARIANT C)
The Customer is responsible to manage the application layer. This results in the
following division of responsibilities:
HP-OMS RESPONSIBILITIES
o Hardware
o Network
o Operating System
o Application Infrastructure
o Database Management
o Application management
CUSTOMER RESPONSIBILITIES
o All components above the application infrastructure level
o Content of Business IT applications
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
3.1.5 THE CUSTOMER NOT RESPONSIBLE TO MANAGE BACK OFFICE SERVERS (FILE SERVERS,
EXCHANGE, IIS, ETC.) (VARIANT D)
The Customer not responsible to manage the back office servers.This results in
the following division responsibilities:
HP-OMS RESPONSIBILITIES
o Hardware
o Network
o Operating System
o Application Infrastructure
o Database Management
o Application Management
CUSTOMER RESPONSIBILITIES
o None
3.2 SERVER SERVICE DESCRIPTION
3.2.1 CUSTOMER SITE DOCUMENTATION
HP-OMSS will provide the Customer with updated documentation of the Customer
Sites' infrastructure, including but not limited to System Administrator
passwords.
3.2.2 SERVICE ITEMS - RELEASE TO PRODUCTION
Release To Production is the process that HP-OMS will perform when it would like
to add/change/remove infrastructure components, which may affect the IT
Environment (including but not limited to the IT Development Environment).
Infrastructure components may include: addition of new servers, changes in Login
scripts, network changes, etc.
Release to Production process will be subject to Change Management process as
described on EXHIBIT B SECTION 8.
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
ACTIVITIES WILL RELATE TO:
o Network (Connectivity configuration, Hardware installation, etc.)
o Operating System (system/patches/service pack installation &
configuration)
o Backup and restore (installation, configuration, scheduling, etc.)
o Security
o Antivirus management
o Operation Management Tools (installation and configuration tools)
o Acceptance for production (integration into the existing operation)
3.2.2.1 SERVER HARDWARE INSTALLATION
HP-OMS RESPONSIBILITIES
o Hardware setup
o Connect infrastructure to power UPS and network
3.2.2.2 SERVER OPERATING SYSTEM (OS) INSTALLATION
HP-OMS RESPONSIBILITIES
o Installation of OS (following the Customer's specifications on naming
conventions, IP addressing, etc.)
o Configure OS according to a standard to be developed by the parties
during the Transition and Stabilization Phases, as set in Exhibit D.
3.2.2.3 SERVER BACKUP SETUP
HP-OMS RESPONSIBILITIES
o Deploy backup client
o Configure backup according to documented specification, to be developed
between the Customer and HP-OMS during the Transition and Stabilization
Phases, as set in Exhibit D.
o Backup media management
o Monitoring the success of backups
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
3.2.2.4 MONITORING SETUP
HP-OMS RESPONSIBILITIES
o Implement monitoring agent
o Configure monitoring according to defined service level/package
o The monitoring will include the following general guidelines:
a. File Servers - e.g., Responsiveness (Ping), Disk Space, CPU and Memory
b. Network - e.g., Responsiveness (Ping) of active devices, overall
utilization on the International private lines and status of all
communication lines (up/down).
c. Applications - e.g., Messaging, Backup, Business applications and
Databases
d. Server Services - e.g., MTA, exchange services, database services.
o Monitoring server services -the Parties will agree as to which of the .
server services will be monitored by the Monitoring and Control System
(HP-OV)
3.2.3 SERVICE ITEMS - OPERATIONS MANAGEMENT
3.2.3.1 GENERAL OS ADMINISTRATION
HP-OMS RESPONSIBILITIES
o Configure access and capability characteristics on a server
o Add, change and delete users in the server environment
o Ensure server processes are in proper running status, keep hardware clean
and in working order
o Log a ticket / incident prior to performing maintenance
o Log and/or document any action taken and recommendation provided
o Configure access and capability characteristics for end users on a server
o Document changes to the Customer's server environment
o Take reasonable measures to confirm that only authorized users have
access to the Customer's IT Environment.
o Recommend user management policies
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
CUSTOMER RESPONSIBILITIES
o Provide user management policies.
o Issue administrative changes via Incident Management / Change Management
o Provide authorization prior to the actual implementation of HP-OMS
recommendations or additional maintenance activities
o Provide Hardware and Software support contracts (if they are not
transferred to HP-OMS) in order for HP-OMS to be eligible to receive OS
patches, Software upgrades and support as per the contracts
o Document changes to the Customer's server environments, which were done
by the Customer.
JOINT RESPONSIBILITIES
o Ensure that no one (internal or external to the Customer's company)
perform any configuration changes in any back office server system
without a prior written confirmation from HP-OMS. All configuration
changes must be performed by HP- OMS or coordinated with HP-OMS.
3.2.3.2 SERVICE RESTORATION (INCIDENT RESOLUTION)
Service restoration focuses on restoring the availability of the server
environment by responding to incidents detected by or reported to the MCC
(Monitoring & Control Center).
Service restoration is intended to minimize disruptions to the end-user by
minimizing each single downtime upon its occurrence.
HP-OMS RESPONSIBILITIES
o Resolve the assigned incident according to defined metrics in EXHIBIT C
(SERVICE LEVEL AGREEMENT), to ensure the return of the specified service.
o Make temporary configuration changes as needed to recover a failed
resource; recommend and perform permanent configuration changes as
necessary to maintain the SLA.
o Document resolution activities.
o Provide an action plan for events requiring permanent solutions beyond
the scope of this agreement.
o Manage end user communications during fault isolation and resolution of
identified problem in sites with HP-OMS Personnel working onsite (at the
applicable Customer Site).
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
CUSTOMER RESPONSIBILITIES
o Authorize HP-OMS (or HP-OMS designated personnel) to apply needed .
software patches and/or service packs.
o Manage end user communications during fault isolation and resolution of
identified problem at Customer Sites with no onsite HP-OMS Personnel.
o Notify HP-OMS about problems, which are identified as being outside the
scope of this agreement, but may have an impact on the delivery of the
services in the agreement.
JOINT RESPONSIBILITIES
o Schedule required downtime for fault isolation, maintenance and/or
resolution.
3.2.3.3 BACKUP
Backup management involves the scheduling, verification, completion and
integrity of regular and optional extra backups of Customer's data to a backup
media. This enables HP-OMS to restore Customer's data in the event of data being
corrupted, destroyed or otherwise unavailable.
There are several types of Backup Sets: daily, weekly, monthly, yearly and
permanent. Backup Services includes safekeeping of the tapes on site and off
site. Backup service also includes all restore activities.
HP-OMS will execute backups, monitor them for completion, and troubleshoot them
in the event of a problem.
Backups may be full backups or incremental (only the changed data is backed up).
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
HP-OMS RESPONSIBILITIES
o Perform scheduled and requested backups and restore of the entire server
data required for recovery or any subset defined by the Customer.
o Loading, unloading, labeling, on site storage of media and cleaning of
backup hardware devices on class 1 sites (See EXHIBIT B SECTION 6.4 -
SERVERS ENVIRONMENT).
o Managing, labeling of media and cleaning of backup hardware devices on
class 2 sites.
o Troubleshoot the backup and restore process when an error condition or
event is detected- 2nd level.
o Adjust and maintain the backup job/script to correct or prevent problems.
o Escalate backup problems, if needed, in accordance with the escalation
procedures.
o Identify and issue media requirements for the store / restore
o Maintain responsibility for the quality and usability of backup data
following the commencement date
o Use open file Agent and application agents (such as Agent for Exchange
and Database) for backup
o Provide backup media tapes worldwide
o Preparation and coordination of backup media to be shipped to safe
locations
o Report to the Customer the success/failure of company wide backup on a
weekly basis.
o Monitor all backup jobs
o Communicate backup schedule to Customer's end user community at Customer
Sites with HP-OMS on site personnel.
CUSTOMER RESPONSIBILITIES
o Communicate backup schedule to Customer's end user community at sites
with no HP-OMS on site personnel.
o Responsibility for the quality and usability of backup data completed
prior to the start of this service through HP-OMS.
o Loading, unloading, and storage of media on class 2 sites (SEE EXHIBIT B
SECTION 6.41- BACKUP).
o Responsible for off site backup storage.
o Provide a safe location for backup media storage (On site and off site).
o Approve backup and retention schedule
3.2.3.4 RESTORE
HP-OMS will execute system restore operations to resolve system problems or, at
the request of the Customer, restore any subset of files from the backup media.
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
HP-OMS RESPONSIBILITIES
o Perform requested restores of the server data for recovery defined by the
Customer.
o Troubleshoot the restore process when an error condition or event is
detected - 2nd level.
o Escalate recovery problems, if needed, in accordance with the escalation
procedures.
o Responsibility for the quality and usability of backup data completed
after commencement date
o Performing a scheduled restore test to verify backup integrity as will be
agreed with the Customer
o Responsibility for correctly specifying destination of data, which is
requested for restore.
CUSTOMER RESPONSIBILITIES
o Responsibility for correctly specifying destination of data, which is
requested for restore, when not accepting HP-OMS recommendations.
o Responsibility for the quality and usability of backup data completed
prior to the start of this service through HP-OMS.
JOINT RESPONSIBILITIES
o In the event a backup is needed to be used for recovering loss of data,
HP-OMS will decide with Customer the backup versions and procedures to
use for restoring the data most accurately.
3.2.3.5 UPS
HP-OMS will provide the customer with UPS services for the server environment to
allow proper data save and server shutdown to prevent possible damage to
information and/or to hardware infrastructure.
HP-OMS RESPONSIBILITIES
o Implement procedures to maintain UPS operations
o Implement UPS solution on Customer sites where UPS is missing or
insufficient (SEE EXHIBIT D SECTION 2.3.4 - TECHNOLOGY GAPS PER CUSTOMER
SITE)
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
3.2.4 SERVICE ITEMS - SERVICE MANAGEMENT -> SECURITY
3.2.4.1 SECURITY GENERAL
The main task of Security Management is to assure that access to Customer Data
and systems are granted to authorize Customer Employees and Contractors and
HP-OMS Personnel only.
HP-OMS will comply and mutually enforce with the Customer, the Security Policy
that had been defined by the Customer prior to Commencement Date. Changes to the
Security Policy will be done by Change Management Process only.
HP-OMS MAINTAINS THE FOLLOWING SERVER SECURITY CLASSIFICATIONS FOR SERVER
MANAGEMENT:
INTERNET: Server directly connected to the public Internet, hosting Internet
applications such as a Web Server or a Mail Server. By definition,
this server is also considered as Stringent.
STRINGENT: The confidentiality of the data is "highly sensitive", or access to
the server includes "limited" or "public" access.
BASELINE: All non-stringent servers managed by HP-OMS are considered to require
baseline security.
All servers are classified into one of these server security classifications and
the security rules and guidelines are applied accordingly. Additional security
rules defined by the Customer are optional and must not contradict those
provided by HP-OMS.
3.2.4.2 SCOPE EXCLUSIONS
The Security Management service does not include assistance, which involves
program development, coding, and isolation of coding problems or implementation
assistance regardless of the cause of data loss or hardware malfunctions.
Security Management does not include consulting (IT Audit, Vulnerability
Assessment or Application Security).
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CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
3.2.4.3 RESPONSIBILITIES
HP-OMS RESPONSIBILITIES
o HP-OMS will work with the Customer to implement the outcome of the
Customer's system and data classification.
o HP-OMS will regularly operate software which will help enforce the
decisions made by Customer as to which personnel will be permitted access
to Customer's computing environment.
o HP-OMS will implement Customer's security policy, which Customer shall
provide during the Transition and Stabilization Phases.
o Recommend security policy.
CUSTOMER RESPONSIBILITIES
o Approve security policy to be used worldwide
JOINT RESPONSIBILITY
o Customer and HP-OMS to take reasonable measures to confirm that only
authorized users have physical access to Customer's environment.
o Enforce security policy
3.2.4.4 PERIODIC PASSWORD CHANGES
HP-OMS RESPONSIBILITIES
o HP-OMS will change all default passwords and perform password changes to
all HP-OMS owned user and Administration passwords and will change these
passwords on a periodic basis - 6 characters at least, letter and
numbers, 4 times a year and cannot be repeated in a 12 month period.
o HP-OMS will be responsible for enforcing Customer's policy of changing
passwords of logins used by end users at least once per quarter, unless
required to do so on a more frequent basis.
CUSTOMER RESPONSIBILITIES
o Will change password when requested.
NOTE: Password aging is optional on Baseline servers, but must be applied to
administrative passwords on Stringent servers and to all passwords on Internet
servers.
3.2.4.5 SECURITY PATCH MANAGEMENT
Security patch management will be provided for the Customer's Stringent and
Internet servers under HP-OMS management.
23
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
This proactive service coordinates and executes maintenance tasks in the
Customer's environment with the goal of preventing unexpected downtime of
infrastructure resources.
HP-OMS RESPONSIBILITIES
o Identify, obtain and coordinate installation of security software patches
o Analyze security problems with the objective of identifying opportunities
to prevent future failures.
o Review recommendations with the Customer during Account Review.
o Update the maintenance/patch log when maintenance is performed or
security patches are implemented.
o Make recommendations to the Customer for security patches and additional
security maintenance activities according to HP-OMS's professional
judgment.
o Log and/or document any recommendation and action taken.
CUSTOMER RESPONSIBILITIES
o Customer will not unreasonably withhold permission to apply needed
security patches.
o Authorize HP-OMS recommendations prior to the actual implementation of
major security patches or additional security maintenance activities.
JOINT RESPONSIBILITIES
o Schedule required downtime for patch management and maintenance.
o Installation of security software or major upgrades will be mutually
agreed upon.
3.2.4.6 WINDOWS SERVERS SECURITY MANAGEMENT
WINDOWS DOMAIN MANAGEMENT
HP-OMS will manage the system properties, system policies and services on each
of the MS- Windows servers throughout the Customer's domain(s), including adding
to or removing computers from the domain(s) as required, managing Trust
relationships, User and Group accounts and the access rights to domain shared
resources via group membership.
24
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
MS/WINDOWS SERVER VIRUS PROTECTION
HP-OMS will provide server based anti-virus protection for all MS-Windows
servers in the Customer environment including MS-Windows based Web, File, Mail,
Application and/or FTP servers. Both regularly scheduled full server virus
scanning and active continuous background scanning of files which have been
downloaded, opened, created, modified, or run from all servers are included in
the virus protection.
HP-OMS will perform routine server scanning for known viruses at scheduled
intervals. In the event of virus outburst or other virus crisis, HP-OMS will
provide support and will manage the crisis through to its resolution.
HP-OMS RESPONSIBILITIES
o Provide server based anti-virus protection for all MS- Windows servers in
the Customer's environment (Back office and DMZ) including MS-Windows
based Web, Mail and/or FTP servers.
o Perform routine server scanning for known viruses at scheduled intervals.
o Send broadcast alerts concerning discovered viruses to Customer.
o Configure the system to attempt to repair infected files as the primary
option whenever a virus is detected. Infected files, which cannot be
repaired, will be configured to deny end user access and will notify the
end-users about such denial.
o HP-OMS will implement Antivirus stabilization plan as described in
Exhibit D (SECTION 2.3.2 - ANTIVIRUS STABILIZATION)
o HP-OMS is responsible for communicating virus detection information to
the appropriate Customer organization(s).
o HP-OMS will not be responsible for lost data due to any limitations of
virus detection software.
CUSTOMER RESPONSIBILITIES
o Customer is responsible for lost or destroyed data due to infections,
caused by Customer Employees who disabled their Antivirus update and scan
without HP- OMS' approval.
JOINT RESPONSIBILITIES
o Mutually agree on the schedule for virus scanning.
25
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
3.2.4.7 OPERATIONAL CRITERIA
THE FOLLOWING CRITERIA GOVERN THIS AGREEMENT:
o The Customer is to forbid any of his employees, contractors or third
party personnel to use any "hacker" tools, such as port scanners,
password crackers, network sensors or Trojan horses on HP-OMS-managed
systems and networks (including systems which are only crossed by HP-OMS)
unless communicated to and approved by HP-OMS. HP-OMS will not be liable
for any unauthorized system access or unavailability due to Customer's
current or previous employees, contractors or third party personnel not
following the security rules listed in this document.
o The Customer's personnel must report any and all computer virus
infestation immediately upon recognition to the HP-OMS MCC.
o Passwords on Servers, Firewall or Router devices and SNMP community
strings will not be shared with the Customer, unless specifically
requested by Customer in accordance with the AGREEMENT, SECTION [21.3]
(FILE ACCESS).
3.2.5 SECURITY AUDITS
HP-OMS agrees to allow the Customer to perform security audits in accordance
with the AGREEMENT, SECTION [10.10] (AUDIT RIGHTS). The Customer may, where
appropriate, recommend improvements in HP-OMS's practices and procedures and the
Parties shall together review and discuss the related correction plan. In the
event HP-OMS's practices and procedures are not compliant with the requirements
of this Agreement, HP-OMS shall at its cost promptly correct any such
non-compliance. All changes will be done using Change Management Process.
3.2.6 PRIVILEGED ACCESS (ADMINISTRATIVE ACCESS)
CUSTOMER RESPONSIBILITIES
The Customer's users, who may need access to an administrative account on one or
more of HP-OMS managed systems for their job, are required to complete a
Privileged Access Request Form for submission to the Customer and HP-OMS
Management for approval. (SEE EXHIBIT B, APPENDIX C)
26
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
3.2.6.1 SECURITY POLICIES
CUSTOMER RESPONSIBILITIES
o Customer will assist HP-OMS to enforce the security policy company wide,
approved by Customer during the Transition and Stabilization Phases.
HP-OMS RESPONSIBILITIES
o Provide a draft security policy covering Customer's IT Environment within
ninety (90) days after the Commencement Date for Customer's review and
approval during the Transition and Stabilization Phases
o Any variations required by the Customer to these policies must be agreed
and documented.
o HP-OMS to implement, manage and support the Customer's security policy.
JOINT RESPONSIBILITIES
o HP-OMS and the Customer will define company wide security policy.
o Changes to the security procedures, approved by Customer during the
Transition and Stabilization Phases must be done in close cooperation
with the Customer and must pass the Change Management process, as changes
in this area will be vital for system integrity.
27
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
4 UNIX MANAGEMENT SERVICE DESCRIPTION
HP-OMS will provide Full Support (except as otherwise stated herein) of UNIX
services. As of today, HP-OMS understands the UNIX operating system within the
IT Environment, as defined in Exhibit B (SECTION 6.7 - UNIX SUPPORT AND
ADMINISTRATION) as the description of the supported environment.
HP-OMS takes full responsibility for all types of UNIX systems in use by the
Customer (i.e. SGI, HP UX, AIX etc), which are still supported by the original
manufacture. HP-OMS will provide Special Support on all UNIX systems, which are
no longer supported by the original manufacture but are still in use by the
Customer or its clients.
TASK DESCRIPTION FOR UNIX SUPPORT:
o Trouble-shooting and fault repair of problems within the UNIX environment
(e.g.UNIX operating system problem)
o Repair of workstations with related hardware.
o Updating, installing, maintaining and removing operating system.
o Reception of all fault notifications and work requests related to the
UNIX management through HP-OMS's Ticketing System as well as relaying
them to the agreed responsible organizations.
o Hardware Installation of new equipment
o Full responsibility of Hardware maintenance
o Network support
o Support UNIX R&D end-users
o Scripts, patches, updates and modifications of UNIX systems and UNIX
applications, which are not related to R&D coding and development.
o Maintain full connectivity with MS-Windows server.
o Installation and administration of Customer Software
THE FOLLOWING ARE NOT IN SCOPE:
o UNIX coding for R&D tasks
28
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
4.1 SERVICE ITEMS
4.1.1 INCIDENT RESOLUTION
o Troubleshooting and problem solving in the UNIX environment regarding
events concerning hardware (e.g. workstations, peripherals, etc.),
software and network.
4.1.2 HARDWARE INSTALLATIONS
o Installation / setup of hardware comprise all of the tasks included in
the hardware installation for end-users. A detailed description of such
tasks is listed in Exhibit B (SECTION 6 SERVICES COMPONENTS).
4.1.3 SOFTWARE, OPERATING SYSTEM AND IMAGE INSTALLATION
o Installation and update of software, operating system and standard
images. A detailed description of tasks is listed in Exhibit B (SECTION
6 - SERVICE COMPONENTS).
4.2 ROLES AND RESPONSIBILITIES
HP-OMS RESPONSIBILITIES
o Document, qualify, and route requests and events under HP-OMS
responsibility to the correct support resource, and escalate when
necessary.
o Regularly update the Customer regarding the status of incidents and
progress made toward their resolution.
o Notify the Customer's designated point of contact, as defined for a
server and/or service, of detected events.
o Monitor open incidents to ensure their progression to end user
satisfaction.
o Work on incident resolution as defined in the Exhibit B (SECTION 5 -
INCIDENT MANAGEMENT).
o Propose the necessary changes for events requiring solutions outside the
scope of this agreement.
o Notify Customer IT management about incidents that have exceeded
escalation thresholds.
o Maintain the necessary maintenance contracts and contacts with third
parties suppliers.
o Perform service recovery in the event of service down.
29
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
5 BUSINESS APPLICATION SUPPORT
HP-OMS will provide Business Application support for the Customer. Business
Application Support is an additional layer of service as shown in EXHIBIT B,
SECTION 6.12 and EXHIBIT I.
5.1 SCOPE
HP-OMS is committed to provide the customer with an Application Support team.
The team will provide applicative support and maintain the Customer's Business
Application environment as agreed in EXHIBIT B SECTION 6.12 - BUSINESS
APPLICATION SUPPORT.
The Customer will provide HP-OMS with a yearly plan for the business application
support services that will be according to Section 5 herein, EXHIBIT B SECTION
6.12 and EXHIBIT I. Changes to these services will be done by using the Change
Management Process.
CUSTOMER AND HP-OMS WILL MUTUALLY REVIEW THE SERVICE EVERY 6 MONTHS.
5.2 SERVICE ITEMS
5.2.1 APPLICATION SUPPORT
Application support by HP-OMS is to be provided for the all applications,
including without limitation:
o [**]
o Oracle Applications
o Intranet applications
o Xxxxx Xxxx
o Replicon
o Lavi
o Synel
JOINT RESPONSIBILITIES
o Provide a yearly work plan for the Application Support team
HP-OMS RESPONSIBILITIES
o Maintain up-to-date documentation
o For the above applications, HP-OMS will perform all support tasks as
described in EXHIBIT B SECTION 6.12 - BUSINESS APPLICATION SUPPORT.
30
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
EXCLUDED:
o HP-OMS will not provide 3rd level support, coding and customization
services for the following applications:
o Xxxxx Xxxx
o Replicon
o Lavi
o Synel
31
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
6 NETWORK MANAGEMENT SERVICE DESCRIPTION
HP-OMS shall provide Full Support in connection with network management not
including passive infrastructure.
6.1 SERVICE ITEMS
6.1.1 MANAGEMENT OF HUBS, SWITCHES AND ROUTERS
This Section consists of ensuring that all network active equipment in the IT
Environment is up and running. HP-OMS will perform the following tasks:
o Network Software maintenance (OS support, application trouble shooting,
etc.)
o Backup of configurations for critical systems (if applicable)
o Monitoring: up/down status, utilization, error rate, multicast/broadcast
rate, etc.
o Troubleshooting
HP-OMS RESPONSIBILITIES
o Provide the above mentioned deliverables
o Maintain up to date documentation
o Coordinate on-site intervention when needed
o Maintain WAN infrastructure so that the monitored devices can be reached
6.1.2 DNS MANAGEMENT
The Internet Domain Name Service (DNS) provides mapping between a human-readable
domain name (e.g. xxx.xx.xxx) and the Internet Protocol (IP) address(es). All
domain names are unique and must be registered with a recognized naming
authority. The DNS management role is to maintain the translation mechanism up
and running for DNS in Data Center as within the scope of this agreement.
32
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
HP-OMS will ensure that the service is up and running and answers the queries by
performing the following tasks:
o Troubleshooting of DNS problems
o Configuration of the application including:
o Creation of domains/sub domains structure
o Delegation information
o Configuration of master, slave, cache DNS
o Separation between the internal and external DNS
o Upgrade of version
HP-OMS RESPONSIBILITIES
o Provide deliverables as described above
o Adding/deleting of DNS records (A, PTR, CNAME, MX)
o Design/architecture of DNS platform
o Mange and perform domain registrations for the Customer
CUSTOMER RESPONSIBILITIES
o Ownership, control and use of the domain name upon its registration,
and are responsible for requesting any new domain from the Internet
authorities.
o Pay any fees associated with the local naming authority, designated agent
or other Domain registration fees.
6.1.3 IP MANAGEMENT
This service aims to enable network environment moves, additions and changes by
logically providing addressing resources and name/address translation. It also
maintains the translation mechanism up and running, and control of the IP
addressing consistency. A unique IP address is allocated for each controlled and
used network component such as PC, printer, scanner, hub, bridge, switch, and
router.
HP-OMS will manage the address space used by Tecnomatix, the management network,
which is a private space.
HP-OMS RESPONSIBILITIES
o Provide management IP addresses (192.168.*.*, 172.17.*.* and 10.*.*.*
ranges)
33
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
6.1.4 VPN MANAGEMENT
The VPN management module provides setup and operation services for IPSec
tunnels (VPNs) built over CheckPoint FW1 equipment. This equipment, as of today,
is being used to establish a connection between remote users to Tecnomatix
computing environment and between sites that have only Internet connection.
HP-OMS RESPONSIBILITIES
o Execute any changes in the rules following the pre-agreed process of
change
o Perform the necessary maintenance, administration and configuration work
on Firewall rules
o Periodically change password for the roaming user Secure Remote
CUSTOMER RESPONSIBILITIES
o Defining security requirements
6.1.5 DHCP MANAGEMENT
The Dynamic Host Configuration (DHCP) management service describes a network
service, which automatically provides network configuration parameters to
network devices, which have been configured to use DHCP. After obtaining
configuration parameters via DHCP, the network device can then actively
communicate with other devices in the network.
HP-OMS will deliver the DHCP management for the entire network environment. The
DHCP Management module includes supporting the following services:
o DHCP Application Management
o DHCP Server Management
o Scheduled Maintenance Outages
34
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
HP-OMS RESPONSIBILITIES
o Maintain configuration of DHCP application
o Execute requested changes, following the Change Management process
6.1.6 RAS MANAGEMENT
Secure Remote Access Services are provided by the VPN gateway on the existing
Checkpoint Firewalls.
The only way to connect to the Customer's network from remote is to first
connect to the Internet (by Dial-up, DSL, Network or any other way) and then
open a secure and encrypted channel to the Customer's network - VPN.
HP-OMS RESPONSIBILITIES
o Monitoring the availability of VPN connection.
o Maintain configuration of VPN equipment
o Execute requested changes, following the Change Management process
o Periodically change password for the roaming user Secure Remote
6.1.7 FIREWALL MANAGEMENT
The management of firewalls includes:
o Configuration of rules for NAT, access, users' login, etc.
o Troubleshooting problems with the firewall
HP-OMS RESPONSIBILITIES
o Provide deliverables as mentioned above
o Ensure that the Security Policies are followed
o Periodic changes to Secure Remote password for Secure Remote users
o Maintain the latest security patches
o Provide connectivity from any Customer Site to any Customer Site
("full mesh")
o Manage and maintain the Gateway anti virus connectivity and functionality
o Take all measure available by the Firewall (checkpoint) in use to enforce
the security policy last approved by the parties.
o Allow Customer to perform security audits in accordance with the
AGREEMENT, SECTION [10.10] (AUDIT RIGHTS).
35
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
JOINT RESPONSIBILITIES
o HP-OMS and the Customer will agree on a Change Request process for
firewall changes, including a list of authorized requestors and approval
personnel.
6.2 ASSUMPTIONS / REQUIREMENTS
o For all network equipment under HP-OMS responsibility, only HP-OMS has
the administration rights, and HP-OMS is able to modify password as often
as required to be compliant with security policies
o All devices must be SNMP compliant, with at least a read only access
login, and have the ability to send SNMP traps to the monitoring station
o Customer to provide up to date network topology map
o Customer to provide a complete and up to date list of used/free IP
addresses.
36
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
7 PROCUREMENT AND IT ADMINISTRATIVE SUPPORT
As part of HP-OMS project management duties and responsibilities, HP-OMS is
committed to support the Customer's IT administrative processes.
7.1 PROCUREMENT SERVICES
HP-OMS will centralize and manage the Customer's IT Procurement process. (The
procurement process will not include the technology refresh as this is done by
predefined schedules, which will be agreed upon every 6 months). The process
will include the following components:
o Hardware procurement
o Software procurement
HP-OMS Responsibilities:
o Provide the Customer with information regarding the specific procurement
process (i.e. costs, product specifications, price offers, etc.)
o Provide the Customer with relevant information required for the decision
to procure the necessary product
o Perform the actual procurement including shipments to all Customer sites,
staging and deployment of the procured item.
o Issue an invoice to cover the procured goods as service if hardware will
be owned by HP-OMS
o HP-OMS will ask the vendor/3rd party provider to issue an invoice if the
hardware or software will be owned by the Customer
o HP-OMS will coordinate and supervise all 3rd party warranty and
maintenance obligations under Third Party Contracts for HP-OMS Hardware
and HP-OMS Software;
o In the event that upon supplying any HP-OMS Hardware or HP-OMS Software
(excluding the Fixed Assets), which is out of order or defective or
otherwise requires repair, HP-OMS will contact the relevant vendor and
will ship/receive /assemble /disassemble the same ("PURCHASED PRODUCTS").
37
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit A - Service Description
Customer Responsibilities:
o Inform HP-OMS when hardware /software purchase is required
o Approve purchase order prior to execution
o Pay shipping costs (if necessary)
o Pay the invoice submitted by HP-OMS according to Exhibit E (Pricing).
Joint Responsibility:
o HP-OMS and the Customer to define procurement procedures
7.2 IT ADMINISTRATIVE SERVICES
HP-OMS will provide the Customer with IT management and administrative support
services for no additional costs. HP-OMS will assign relevant administrative
resources to services as described below to ensure continuation of IT
administrative services for the following activities:
o Software license management
o 3rd party contracts management
o Provide assistance with IT projects management
o Provide assistance in planning future IT projects
HP-OMS Responsibilities:
o Provide the Customer or authorized 3rd party with any IT information
requested by the Customer
o Provide relevant IT information for creating RFI/RFP, etc.
o Provide the Customer with technical definitions/requirements within 24
hours for urgent issues/projects
o Provide the Customer with technical definitions/requirements within 72
hours for on going issues/projects
Customer Responsibilities:
o Inform HP-OMS about any process requiring any IT information
o Inform HP-OMS about the need to receive assistance in planning/ managing
IT projects
38
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Statement of Work (SOW)
Exhibit B
Statement of Work (SOW)
V 7.0
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Statement of Work (SOW)
DOCUMENT INFORMATION
Project Manager : Xxx Xxx
Customer Project
Manager : Na'ama Halperin
Prepared by:
Document Version
No: V7.0
Preparation Date: 26/10/2003
2
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Statement of Work (SOW)
INDEX
DOCUMENT INFORMATION............................................... 1
DOCUMENT INFORMATION............................................... 2
INDEX.............................................................. 3
1 GENERAL ................................................... 4
DEFINITIONS ....................................................... 4
2 MANAGEMENT SUMMARY ........................................ 7
2.1 GENERAL.................................................... 7
2.2 INTRODUCTION TO IT SERVICE MANAGEMENT / IT
INFRASTRUCTURE LIBRARY.... 7
THE PICTURE SHOWS THE PRINCIPLE ITSM REFERENCE MODEL....... 9
2.3 GENERAL TERMS.............................................. 9
3 SERVICE LEVEL MANAGEMENT .................................. 10
4 AVAILABILITY MANAGEMENT ................................... 12
5 INCIDENT MANAGEMENT ....................................... 13
5.1 PROCESS DESCRIPTION........................................ 16
5.2 SUPPORT WORKFLOW........................................... 21
5.3 SUPPORT WORKFLOW CHART..................................... 22
5.4 ESCALATION PROCESS......................................... 26
5.5 CALL FLOW.................................................. 26
5.6 BUSINESS APPLICATION HELP DESK............................. 30
5.7 TICKETING SYSTEM MANAGEMENT................................ 30
5.8 REMOTE AND TRAVELING END-USERS............................. 33
5.9 EMERGENCY ESCALATION PROCESS............................... 34
5.10 ADOPTING HP-OMS RECOMMENDATIONS- [XXXXXXX: TO BE REVIEWED]. 38
6 SERVICE COMPONENTS ........................................ 39
6.1 SOFTWARE SUPPORT AND MIANTEINACE........................... 42
6.2 XXX ENVIRONMENT SUPPORT.................................... 42
6.3 HARDWARE SUPPORT........................................... 45
6.4 SERVERS ENVIRONMENT........................................ 45
6.4.1 Backup ................................................. 46
6.4.2 General System Administration .......................... 47
6.4.3 Web servers: ........................................... 47
6.5 MAIL ADMINISTRATION........................................ 48
6.6 LAN/ WAN MANAGEMENT........................................ 48
6.7 UNIX SUPPORT AND ADMINISTRATION............................ 49
6.8 STORAGE SUPPORT............................................ 50
6.9 ANTIVIRUS ADMINISTRATION................................... 50
6.10 FIREWALL................................................... 51
6.10.1 Firewall Administration ................................ 51
3
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Statement of Work (SOW)
6.11 CONTENT PROTECTION......................................... 52
6.11.1 Content Protection (Esafe) Administration .............. 52
6.12 BUSINESS APPLICATION SUPPORT............................... 53
6.13 INSTALL, MOVE ADD OR CHANGE (IMAC)........................ 54
6.14 SCOPE AND OUT OF SCOPE WORK................................ 55
6.15 TECHNOLOGY REFRESH PROCESS................................. 56
7 RELEASE TO PRODUCTION ..................................... 57
8 CHANGE MANAGEMENT ......................................... 59
8.1 ROLES AND RESPONSIBILITIES................................. 59
8.1.1 Change Manager(s) ...................................... 60
8.1.2 Change Advisory Board (CAB) ............................ 60
8.1.3 Change Requester ....................................... 61
8.1.4 Change Supervisor ...................................... 61
8.1.5 Change Tester(s) ....................................... 62
8.1.6 Change Coordinator ..................................... 62
8.1.7 Change Implementer(s) .................................. 62
8.2 CHANGE CATEGORIES.......................................... 63
8.3 PROCESS DESCRIPTION........................................ 65
8.3.1 Adding or Removing a Customer Site ..................... 66
8.3.2 Adding or Removing a System ............................ 66
8.3.3 Changing Service Level ................................. 67
8.3.4 Introducing or Eliminating a Service ................... 67
8.3.5 Emergency Change ....................................... 67
8.3.6 Process Flow Chart ..................................... 68
APPENDIX A: CUSTOMER STAFF AUTHORIZED TO TRANSFER CASES OR
CALL HP-OMS ....................................................... 70
APPENDIX B: PRIVILEGED ACCESS REQUEST FORM ........................ 71
APPENDIX C: SECURITY AUDITS ....................................... 74
APPENDIX D: HP-OMS ACCEPTABLE USE POLICY .......................... 76
APPENDIX E: REASONABLE REQUEST TO REPACE KEY PERSONNEL, SECURITY OR
COMMUNICATION SUPPLIERS CONTRACTORS ............................... 77
APPENDIX F: CHANGE REQUEST FORM ................................... 78
APPENDIX G - EMERGENCY ESCALATION PROCESS PHONE NUMBERS............ 80
4
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Statement of Work (SOW)
1 GENERAL
DEFINITIONS
This Exhibit B is attached to the Master Service Level Agreement dated as of
[______________] by and between HP-OMS and Customer (the "AGREEMENT") and made a
part thereof by reference. All capitalized terms not otherwise defined in this
Exhibit shall have the meanings ascribed thereto in the Master Service Level
Agreement between the parties. The following terms shall have the meanings
specified below:
"CHANGE" has the meaning set out in SECTION [8] (CHANGE MANAGEMENT).
"EMERGENCY CHANGE" has the meaning set out in SECTION [8.2], TABLE 8 (CHANGE
CATEGORIES).
"END OF QUARTER PERIOD" has the meaning set out in SECTION [4] (AVAILABILITY
MANAGEMENT).
"FULL SUPPORT" has the meaning set out in EXHIBIT A to the Agreement.
"INCIDENT" means a fault, error, or problem in the IT Environment in respect to
which Customer is entitled to Service in accordance with the Agreement.
"IT ENVIRONMENT" has the meaning set out in EXHIBIT A to the Agreement.
"ITSM" has the meaning set out in SECTION [2.2] (INTRODUCTION TO IT SERVICE
MANAGEMENT / IT INFRASTRUCTURE LIBRARY).
"MAJOR CHANGE" has the meaning set out in SECTION [8.2], TABLE 8 (CHANGE
CATEGORIES).
"MAKE IT WORK SUPPORT" has the meaning set out in EXHIBIT A to the Agreement.
"MEDIUM CHANGE" has the meaning set out in SECTION [8.2], TABLE 8 (CHANGE
CATEGORIES).
"MINOR CHANGE" has the meaning set out in SECTION [8.2], TABLE 9 (CHANGE
CATEGORIES).
"MUO" or Multi User Outage is defined in EXHIBIT C, SECTION [2], TABLE 1.
"OS" Operating System
"PRIORITY" means either MUO, Critical, Regular or Low (as such terms are defined
in EXHIBIT C, SECTION [2], TABLE 1), indicating the business impact to Customer
of an Incident and thus the urgency for follow-up in accordance with the Service
Levels.
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Statement of Work (SOW)
"RFC" means Request for Change.
"SERVICE LEVEL COMMITTEE" has the meaning set out in SECTION [3] (SERVICE LEVEL
MANAGEMENT).
"SERVICE COMPONENTS" has the meaning set out in SECTION [6] (SERVICE
COMPONENTS).
"SERVICE SYSTEMS" means the ticketing and monitoring modules of the "HP
Openview" system, provided by HP-OMS for the provision of the Services,
including without limitation, Incident management and monitoring of HP-OMS
Hardware in accordance with the Service Levels.
"SERVICE REQUEST" means Customer's formal request for Services when the Customer
discovers an Incident.
"SLM" has the meaning set out in SECTION [3] (SERVICE LEVEL MANAGEMENT).
"TECHNOLOGY REFRESH ASSETS" has the meaning set out in SECTION [6.15]
(TECHNOLOGY REFRESH PROCESS).
"TICKETING SYSTEM" means the help desk management system within the HP Openview
system.
"VERSION RELEASE PERIOD" has the meaning set out in SECTION [4] (AVAILABILITY
MANAGEMENT).
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Statement of Work (SOW)
2 MANAGEMENT SUMMARY
2.1 GENERAL
The Statement of Work (SOW) provides roles and responsibilities and detailed
information as a basis for the delivery of the Services by HP-OMS, as well as
for the future cooperation of Customer and HP-OMS. This exhibit describes the
working process and the services during the Steady State, which is defined as
the period following the end of the Transition and Stabilization phases.
HP-OMS will support all projects, which were started prior to the commencement
day (i.e. Windows and Exchange 2000).
It is understood that the IT service functions and, thus the SOW may be improved
in the future as the level of experience and knowledge about Customer's IT
Environment and its use increases. The SOW consists of the following Sections:
o Service Level Management
o Availability Management
o Incident Management
o Service Management
o Release to Production
o Change Management
This Section introduces the concept of the SOW and presents a summary
description of each of the individual Sections as listed above.
2.2 INTRODUCTION TO IT SERVICE MANAGEMENT / IT INFRASTRUCTURE LIBRARY
HP has been working with IT organizations around the world to develop the HP IT
Service Management Reference Model ("ITSM") It provides a tool for initiating a
meaningful dialog with HP-OMS's Customers concerning IT process requirements and
solutions by providing a coherent representation of IT processes and a common
language.
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The ITSM incorporates many of the IT Infrastructure Library (ITIL) best
practices, which are relevant to the provision of the Services. ITIL is a UK
government standard manifested in a library of books describing 'best practices'
for delivering and managing IT service functions. The aim of the ITIL is to
facilitate improvements in efficiency and effectiveness in the provision of
quality IT services and the management of the IT infrastructure within any
organization. In order to take advantage of the ITSM this document will show
services as a function of the ITSM reference model. The advantages are:
o ITSM/ ITIL is a 'complete' description of IT service functions/processes
o Service activities are clearly defined allowing clear allocation
of responsibility and clearly delineated separation and integration
points
HP-OMS will provide the Sercvices based on ITSM guidelines.
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THE PICTURE SHOWS THE PRINCIPLE ITSM REFERENCE MODEL.
2.3 GENERAL TERMS
This SOW refers to the steady state of the Services provided by HP-OMS to the
Customer. The steady state is defined as the time following the Transition and
Stabilization Phases at each Customer Site (see description in EXHIBIT D).
The Transition and Stabilization Phases are described in detail in Exhibit D -
Transition and Stabilization
The SOW describes the processes that are used to deliver the services for HP-OMS
Hardware, HP- OMS Software, Customer Software and Customer's proprietary
Software defined in the Agreement.
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3 SERVICE LEVEL MANAGEMENT
The SERVICE LEVEL MANAGEMENT process is used to verify with the Customer that
the Service is delivered according to the agreed Service Levels and their
parameters. In the face of changing business needs, service level management
adapts quality and/or quantity parameters.
HP-OMS will nominate a service level manager ("SLM") who will be responsible to
verify that the Service Levels are achieved.
Once a month, on or before the 15th day of each calendar month, the SLM will
issue a report that will compare the actual service levels achieved with the
Service Levels required to be achieved.
A Service Level committee will review the report and determine the corrective
actions to be taken (the "SERVICE LEVEL COMMITTEE"). From HP-OMS, the
participants on the Service Level Committee will be the HP-OMS Project Manager,
the Technical Manager and the Service Level Manager, unless otherwise agreed by
the parties. From the Customer, the participants on the Service Level Committee
will be the Director of IT and the Global Infrastructure Manager, unless
otherwise agreed by the parties.
HP-OMS RESPONSIBILITIES
o Provide the Customer with the Services described in the Agreement.
o Provide a primary contact who will be the HP-OMS SLM
o Collect, consolidate, distribute and maintain data to provide standard
reports for the services being delivered
o Evaluate monitored system events and thresholds to ensure their
appropriateness and accuracy
o Produce regular reports as defined in Exhibit B
o Perform actions necessary to achieve the Service Levels
o Perform special correction actions when the Service Levels are not met by
HP-OMS at HP-OMS' cost and expense, to ensure that the Service Levels are
met in the next monthly measurement period.
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CUSTOMER RESPONSIBILITIES
o Provide a primary contact as a counterpart to HP OMS's responsible
Project Manager
o Notify HP-OMS prior to making changes in their business processes or
organization that may have an impact on the service to be delivered
JOINT RESPONSIBILITIES
o HP-OMS and Customer will review Service Levels achievement and determine
necessary amendments/changes to service
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4 AVAILABILITY MANAGEMENT
The AVAILABILITY MANAGEMENT process focuses on achieving and measuring the
agreed availability levels for the IT Environment (defined in EXHIBIT A and
EXHIBIT C APPENDIX A). The Service Level Committee will manage availability of
the IT Environment in accordance with the Service Levels. When a planned
downtime is required, HP-OMS will coordinate planned downtimes with the
Customer. The last two (2) weeks of the quarter and the first four (4) weeks of
a new quarter are considered "END OF QUARTER PERIOD". The last three (3) weeks
before any major version release of Customer's proprietary Software are called
"VERSION RELEASE PERIOD". Planned downtime will not accrue during the End of
Quarter Period and/or during the Version Release Period, except for emergency
cases and where approved by the Customer IT Director AND the relevant Country
manager using the Change Management Process.
In addition HP-OMS will have a planned down time window as detailed in EXHIBIT C
SECTION 3.3 (DOWNTIME).
HP-OMS RESPONSIBILITIES
o Coordinate with Customer all planned downtimes required to deliver the
agreed service and will make best efforts to perform maintenance work
during non - working hours.
o Monitor the infrastructure availability and report to the Customer on a
monthly basis
CUSTOMER RESPONSIBILITIES
o Follow HP-OMS recommendations for good availability practices (e.g.
provide planned downtimes to allow HP-OMS to performed proactive
maintenance and consistency checking jobs).
o Notify HP-OMS about changes in Customer business processes that may
impact the service availability.
JOINT RESPONSIBILITIES
Customer and HP-OMS will agree on a defined maintenance window, which will allow
HP-OMS to perform proactive maintenance for system administration tasks to
improve service performance. Downtimes will be scheduled to after working hours
of the relevant site and will be planned not to occur during Version release
Period or End of Quarter Periods.
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5 INCIDENT MANAGEMENT
The Incident management process describes the process to resolve Incidents.
An Incident may be reported to HP-OMS, either as a Service Request or as an
automatic alert generated by the Incident Management System.
The INCIDENT MANAGEMENT process objective is to re-establish the Service
affected by the Incident as soon as possible following an Incident and to
minimize the disruption consequences.
All Incidents will be classified by priorities. A four stage process analyzing
the following factors determine Incident Priority:
o The number of users affected by the Incident
o The severity of the problem
o The business risk
o The number of Customer Sites affected by the Incident
Priorities are ordered from 1 to 4 where 1 is termed "MUO" (Multi User Outage),
2 " Critical ", 3 "Regular" and 4 "Low".
A matrix showing the Priority as a result of these four (4) factors is shown in
EXHIBIT C, SECTION 2 - (PRIORITIES)
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TIERS OF SUPPORT
HP-OMS will provide the Customer with three Tiers of support:
1st Tier - support that the local HP-OMS Personnel provide at the applicable
Customer Site;
2nd Tier - support from the MCC;
3rd Tier - MCC escalates the problem to HP-OMS experts or a third party supplier
(Remote users or Customer Employees who are traveling shall receive 1st and 2nd
Tier Support from the MCC)
HP-OMS RESPONSIBILITIES
o Document, qualify and route the requests and events under HP-OMS
responsibility to the correct support resource, and escalate when
necessary,
o Regularly update end-user about call status and progress made.
o Monitor open Incidents to ensure their progress towards end-user
satisfaction
o 1st, 2nd and 3rd Tier Incident resolution of all events and Customer
requests & the execution of routine change orders
o Propose the necessary changes for events requiring solutions outside
the scope of the Agreement and provide such changes under change
management process
o Monitoring and reporting of service performance
o Provide to the Customer a list of point of contacts (EXHIBIT G)
o Invest constant efforts without any interruptions until a solution is
found for problems of the first 2 priorities (MOU and Critical) or
Customer's representative will agree to a temporary solution
o Provide technical support as described in this Exhibit SECTION 6 -
SERVICE COMPONENTS
o Solve service tickets submitted by end-users
o Software distribution
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CUSTOMER RESPONSIBILITIES
o Provide HP-OMS personnel with necessary access to all sites where
operational.
o Provide access to the IT infrastructure (Servers, Network Routers...).
o Provide access to the Telecom infrastructure as required to provide in
scope services
o Provide a list of contacts authorized to raise requests, and/or to
receive notification for pre-defined events (APPENDIX A herein)
o Supply information required to access application support team as well
as third party contacts, if maintained by Customer
o Open Incidents (service request) via web interface, if possible, and
provide a description of the request including contact information
o End-users should respond to HP-OMS request for information regarding an
Incident
o Assist HP-OMS with necessary activities to resolve problems (e.g. test,
onsite help, etc.).
o Inform HP-OMS of planned changes to user numbers (differences of greater
than 10% plus/ minus) or Customer Site locations to ensure no degradation
of service.
JOINT RESPONSIBILITIES
o Customer & HP-OMS will be responsible to define and validate most
Desktop and Laptop Software images used by end-users.
o Customer & HP-OMS will record Incident ID for further reference.
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5.1 PROCESS DESCRIPTION
HP-OMS SUPPORT PROCESS:
1) Class 1 Sites- Include sites which are R&D centers and have [**] or more
R&D users or general sites with [**] or more end-users
2) Class 2 Sites- Include general sites which have less then [**] end-users
or R&D sites with less then [**] R&D users but more then [**]
3) Class 3 Sites - Include sites with [**] or less users, include end-users
located on very small Customer sitesand Home users who are working from
home as their main working place.
Home Users - Include end-users working from home as their main working place
4) Customers' Customer Site Users - Include end- users working on Customer's
customer site (e.g. BMW) as their main working place
5) Traveling Users - Include end-users that are traveling away from the
customer sites described above
Support delivery overview is detailed in Figure 2 (Support Provision for
End-Users) herein
In order to carry out support operations worldwide, HP-OMS will set up a
Monitoring and Control Center (MCC). This center will operate with on-site
support engineers 24/6 (according to MCC Service Window as detailed in Exhibit C
section 3.2), and will have the following duties and responsibilities:
o Infrastructure monitoring management
o 2nd and 3rd Tier support
o Crisis management
o Windows & Unix system administration
o Exchange administration
o Oracle database administration and management
o Information security management
o Web servers management (not include content management)
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o Network monitor and management (Including WAN connections)
o Firewall & Anti virus management
o Monitor and control all open Service Request tickets worldwide
o 3rd party contracts management
o Professional's asistence management
o Escalation to Key Personnel or to Professionals when requieured
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FIGURE 2: SUPPORT PROVISION FOR END-USERS
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To provide 1st Tier support for end users, HP-OMS will setup Regional Support
Centers (RSC). RSC will be combined with permanent on site personnel (on Class1
sites) and by HP-OMS personnel visiting on site per request due to Incident or
scheduled maintenance task (on Class 2 sites).
RSC will have the following duties and responsibilities:
o 1st Tier support
o Hardware break/fix
o Hardware install
o On site technical support
o Backup operation
o Software installation and support
o IMAC (Install, Move, Add, Change) - See details in Section 6.13 HEREIN
(INSTALL, MOVE, ADD OR CHANGE (IMAC))
o Escalation to MCC
Service request tickets from end-users located on sites bound to RSC will route
to a regional work queue and will be handled according to ticket's Priority.
[**]
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HP-OMS Regional Support Center (RSC) Personnel will provide assistance for
issues requiring 1st Tier support or technical support, which requires presence
on site (on Class 1&2 sites).
Support procedure will be based on the Ticketing System, which will route
services request tickets to pre-defined work queues. The queue is set according
to the end-user regional location, the content of the problem, Customer working
process and the handler.
SERVICE REQUEST INITIATION
The Ticketing System will be web based and will run over the Internet (Naama:
Internet was decided between Harel and Erez in the past so it will be accessable
by end-users who can't access the intranet). The system will be accessible
worldwide to all Company end-users providing user name and password. It will be
mandatory for all Customer employees to open a Service Request ticket using the
Ticketing System in order to receive service except for the occasions listed
below. The Ticketing System will also allow end-users to view and check the
status of their open Service Request ticket via the web interface.
No services will be given to end-user unless ticket has been submitted using the
Ticketing System.
In the unlikely event that the Ticketing System is down, HP-OMS will
notify/redirect end-users to temporarily submit Service Requests via email,
phone or fax.
EXCEPTIONS
HP-OMS will allow end-users to initiate Service Requests using email, phone or
fax submission if the Service Request meets one or more of the following
conditions:
o End-user requires service but is unable to connect to the Internet to
submit a standard Service Request ticket
o End-user has problem with his/her personal computer and has no access
to another computer which would allow him/her to submit a standard
Service Request ticket
o End-user is in the contact list specified in APPENDIX A herein -
Customer staff authorized to transfer cases or call HP-OMS
o Ticketing (Service) System is not available
o End user traveling or located at Customer's Customer Sites
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5.2 SUPPORT WORKFLOW
End-users on Class 1 sites, Class 2 sites, sites with less then 3 users and home
users are required to open a Service Request ticket for all cases, which
requires technical support with the exceptions described above. Support process
for traveling users and users at Clients sites will be done by MCC as detailed
in SECTION 5.1 and 5.6 herein.
In the event the Service Request was not submitted directly by the end user
[I.E. VIA THE INTERNET], it will be submitted to the MCC and the ticket ID will
be given to the initiator. The system is receiving tickets from registered
end-users and proactive alerts [i.e. automatically generated Incidents] from
infrastructure monitoring environment (i.e. Open View monitoring alerts).
The Ticketing System will route Service Request tickets to the appropriate work
queue.
TABLE 5: EXAMPLE CASES OF TICKETING SYSTEM ROUTING:
SITE NAME &
CLASS CASE OUTCOME
-------------------- ------------------------------------- ----------------------------------------
Service request will be submitted to
RSC work queue for assistance. RSC
Class1 End-user submits a ticket, on site support person will provide the
requesting help end-user with 1st Tier support as
required.
End-user submits a ticket, Service request will
Class 2 requesting help be submitted to RSC
work queue for
handling. RSC
support person will
contact the end-
user and provide him
with remote
control assistance. If the end-user will
require on site help, RSC will engage
HP authorized
personnel, who will
arrive to Class 2
site and provide on
site support
according to the
appropriate SLA.
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End-user submits a ticket, Service request will be submitted to
Class1 asking to open mail account for MCC (Monitor & Control Center)
new employee work queue for resolution
Traveling End user calls MCC and MCC will open Service
End- user requests help Request that will be
submitted to MCC work
queue.MCC support person
will provide the
end-user with remote
assistance. If the
problem requires
hardware/on site
help, MCC will
direct the user to
Customer's nearest
site. In the event
there isn't a nearby
site, MCC will
direct the user to
the nearest HP-OMS
authorized support
contact.
RSC and MCC support personnel will use remote control technology to resolve
end-user technical issues. At Class 2 sites, where there are no permanent HP-OMS
personnel, in situations which will require on site technical assistance, MCC
and RSC will operate HP-OMS authorized personnel, who will arrive to the
end-user site according to SLA as defined in EXHIBIT C.
For Incidents initiated for an individual issue, HP-OMS will verify with
initiator that he/she approves the problem was fixed prior to closing the
ticket.
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5.3 SUPORT WORKFLOW CHART
Figure 3 - support workflow chart for Class 1, Class 2 and Home end users
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Figure 4 - support workflow chart for Class 1, Class 2 and Home end users
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TABLE 6: SUPPORT CLASSIFICATION BETWEEN MCC AND RSC
The Table below describes, without limitation, the major functions of the MCC
and the RSC.
INSCOPE OWNER OUT OF SCOPE
------------------------------------- ------------ -------------
[**] [**]
[**] [**]
Escalation Management MCC
Exchange administration MCC
[**] [**]
[**] [**]
2nd and 3rd Tier support MCC
Crisis management MCC
[**] [**]
3rd party contracts management MCC
System management & maintenance
o Install patches
o Change parameter
o File system modifications MCC
o User setup
[**] [**] [**]
Remote traveling users MCC
Hardware break/fix RSC
Hardware replace RSC
[**] [**] [**]
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In scope Owner Out of scope
----------------------------------------- --------------- ----------------
1st Tier support RSC
General Software support RSC
All Customer purchased application on RSC
make it work basis
5.4 ESCALATION PROCESS
Service request tickets from Class 1 sites will receive 1st Tier Support on-site
according to the Ticketing System routing process. Service request tickets from
Class 2 sites will receive 1st Tier Support off-site according to the Ticketing
System routing process.
Service requests, which are not resolved by RSC will be escalated to HP-OMS
Monitoring and Control Center (MMC), which will act as 2nd Tier support. The
person who escalated the issue will own all 2nd Tier escalated Tickets. This is
to maintain the principal of HP-OMS's SPOC (Signal Point Of Contact).
All escalated Tickets will be continually managed until final resolution of the
problem. Service requests, which are not resolved by MCC, will be escalated to
HP-OMS Professionals or other 3rd party that will act as 3rd Tier support who
will support the MCC at the background. Service requests, which are not resolved
by HP Professionals, will be escalated to HP-OMS Key Personnel that will also
act as 3rd Tier support and will verify the resolution of the Service Request
according to the SLA measures.
5.5 CALL FLOW
End-user at Custoemrs' Custoemr Sites or Traveling users will call MCC to
request for Service. MCC will open a ticket on the Ticketing System onbehalf of
the users and provide the services according to Service Request Priority and the
nature of the problem. The handling of the Service Request will be according to
the Support Procedure and Escalation Procedure and the SLA described in EXHIBIT
C.
Figure 5 - Call flow and escalation process
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REPORTING:
HP-OMS MCC will provide the Customer and HP-OMS Project Manager with on going
reports, which will include the type of service provided worldwide. HP-OMS will
update the form of the reports according to Customer's requests. HP-OMS reports
to the Customer will include:
WEEKLY REPORTS:
o Total number of service tickets for period
o Calls per sites per priority
o Class classification per priority
o Top 3 most common service categories
o Failed service tickets:
o Total number of tickets including failed tickets percentages
o Missed SLA tickets per service
o Number of IMAC requests
o Back log tickets - Tickets that remain unsolved from the last week
o Average Time to resolve a ticket by priority
o Overall ticket report by priority (display the total number of tickets
per priority and the resolution time for those tickets on the same graph)
o Maxuimum repair time - Time to fix tickets which failed their SLA
MONTHLY REPORTS:
o Total number of service tickets for period
o Calls per sites
o Top end-users with most calls
o Top 3 most common incidents category
o Service incidents trends
o Number of IMAC requests
o Average Time to resolve a ticket by priority
o Maxuimum repair time - Time to fix tickets which failed their SLA
o Failed tickets:
o Total number of tickets including failed tickets percentages
o Failed tickets per service
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QUARTERLY/ANNUALLY REPORTS:
o Quarterly service incidents trends:
o Availability trends
o Time to resolve trends
o Number of end-users per number of tickets
o Number of users trend
o IMAC requests compared to HP-OMS commitment
o Total SLA commitment for credit
It will be the responsibility of the HP-OMS Project Manager to analyze these
reports and investigate exceptional cases (e.g., more then X Service Requests
from end-users per month, service tickets which missed their SLA (miss commits)
and verify that the service provided was correct, and whether a
service/technical change or adjustment is needed.
HP-OMS will also provide Customer with hardware and software asset reports on a
quarterly basis.
Reports should be provided by HP-OMS in the formats set out in Appendix H
hereto, and shall be reviewed by the Service Level Committee, as described in
SECTION 3 (SERVICE LEVEL MANAGEMENT).
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5.6 BUSINESS APPLICATION HELP DESK
As described in SECTION 6.12 (BUSINESS APPLICATION SUPPORT), HP-OMS will provide
the Customer with support services for business applications. HP-OMS will
consolidate current Customer helpdesk support (except for [**] support) process
into Service Desk Ticketing System (SEE SECTION 5.7 - TICKETING SYSTEM
MANAGEMENT). The consolidation process will make the current working process
more efficient and will provide the benefits of using a workflow and escalation
Ticketing System with report abilities.
HP-OMS defined the Business application Help Desk consolidation into Service
Desk, as part of the Ticketing System projectas deribed in EXHIBIT D. During
consolidation process, HP-OMS and the Customer will work together to analyze the
working process and the relationships the help desk presently has with groups
and end-users across the company. The outcome of this process will be a workflow
process, which will be implemented into Service Desk Ticketing System.
For [**] support, HP-OMS will continue the current work-flow using the [**]
module.
As recommended for the regular support process (SECTION 5.2 - SUPPORT WORKFLOW),
a similar support process will be defined for the application helpdesk. It will
have a dedicated work queue, which will be managed according to ticket priority
and its content and will integrate with the Company's global support process
(SEE 5.3 -SUPPORT WORKFLOW CHART).
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5.7 TICKETING SYSTEM MANAGEMENT
Upon logging a ticket in Service (Ticketing) Systems the data linked to a user
is automatically shown. This means that the geographical location, user's direct
manager, user's contact details and configuration items such as PC and Monitor,
Printers and Servers in use can be linked to the user. The search engine also
provides the possibility to search by either User ID, user name or Workstation
name.
In populating information automatically, Service Systems provide the history of
the user including old tickets and current tickets which are in the process of
being resolved as well as information about the Hardware being used by the end
user. Service Systems preserve all information regarding a ticket including the
source, Incident or request details as well as the resolution. Closed tickets
serve as a knowledge base or repository of past problems and resolutions and are
used to increase the resolution rate of the support personnel at the 1st Tier
support, particularly for cases that are linked specifically to the Customer's
IT Environment. Through the use of Service Desk, HP-OMS is able to track
tickets, manage Incidents, manage and report Service level achievement. Service
Systems also enable HP- OMS to produce reports and information necessary to
track performance against these Service levels. As an ongoing improvement
function, HP-OMS will continually analyze the reports to understand trends and
whether any changes should be recommended to optimize service delivery and
improve End-User productivity. Web version of the tool allows the Service
provider to commence working toward the resolution of an Incident in 'real time'
without having to once again ask the end-user to repeat their question or
Incident.
Service desk network traffic works over http protocol and will have minimal
impact to network infrastructure.
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SUPPORTED LANGUAGES:
Official supported language by HP-OMS will be English including phone support.
In some of Customer's sites, HP-OMS will provide a Ticketing System with end
users' User Interface (UI) in the following languages:
o English
o French
o German
o Japanese (Kangi)
In case that the number of employees in the region using Mandarin language will
reach or exceed 7% of the total number of end-users, HP-OMS will provide a user
interface for the web ticketing system in Mandarin language.
The system will display the Ticketing System pages including the drop down menus
in the languages mentioned above. If the end user will require/wish to enter
free text the system will recommend him/her to use English text only. Customer's
employees that can't use English will be able to submit the ticket description
in their local languge.
At locations where the above languages are not the local languages, UI will be
displayed in English.
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SYSTEM IMPLEMENTATION:
HP-OMS defined Ticketing System implementation, as part of the projects
necessary for the Stabilization phase (EXHIBIT D).
During implementation process, HP-OMS and Customer will work together to analyze
the Customer's working process HP-OMS in use methods. The outcome of this
process will be a workflow procedure to be implemented into Service Desk to be
used for on-going support operation. As part of delivering the product, HP will
provide the Customer representative access (read only) to the system, the
ability to generate reports and access to the system database to allow the
Customer to generate custom reports.
5.8 REMOTE AND TRAVELING END-USERS
As discovered during the Due Diligence phase, there are end-users who work from
home, traveling end-users , end-users working at sites with less then 3
end-users and end users working at Customer's client sites.
The support process for home users and users that are working from sites with
less then 3 end-users will rely on the global support process describe in
SECTION 5.2 - SUPPORT WORKFLOW and will have the following exceptions:
o Home users and users that are working from site with less then 3
end-users will be able to contact the local support person by phone in
the event of mass failure which prevents him/her from submitting Service
Request tickets (according to procedure that will be agreed)
o Service Desk Ticketing System will prompt every user for his/her
location. End-users who are geographically close to an existing site will
select the site as their location and will receive support by the local
RSC
o On personal home computers (not belonging to or not purchased by the
Customer or not HP-OMS Hardware), support will be limited to ability to
use Secure Remote to access mail and file services only
Home PCs which are the property of the Customer or HP-OMS Hardware will be fixed
on Customer's site The support process for traveling users and users that are on
Customer' s Customers sites will rely on the Call Flow described in Section 5.8
(Remote and Trevelling End-Users). Support Process is described in SECTION 5.2
(SUPPORT WORKFLOW) and will have the following exceptions:
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o HP-OMS will provide 1st Tier support by phone to the above users by MCC
(see Figure 2 for support levels description)
o Remote end-users who are traveling will receive phone support 24/6
(according to MCC Service Window as detailed in Exhibit C section 3.2)
by phone or a beeper to the MCC. MCC will provide any remote assistance
possible for traveling users.
o In the event end-user will be directed to a beeper or a Voice Mail, MCC
will contact the end-user within 30 minutes from the moment a message is
left (MCC support for traveling users based on the assumption that at any
given time, a maximum of 100 end-users will be traveling out of their
original office)
EXCLUDED (WILL NOT BE SUPPORTED BY HP-OMS):
o HP-OMS will not support any home computer (hardware and software) except
for the ability to use Secure Remote.
o HP-OMS will not provide on site support at end- user or non-standard
locations (end- user home, hotel, etc.)
5.9 EMERGENCY ESCALATION PROCESS
HP-OMS will provide the Customer with 2 emergency contact details:
(1) HP-OMS Key Personnel; and
(2) MCC (Monitor & Control Center) with a 24/7 technical emergency phone
number, as detailed in Appendix G herein (Emergency Escalation Process
Phone Numbers).
Only a Customer Contact listed in APPENDIX A herein is permitted to "escalate an
Incident", i.e., for the purpose of changing the Priority of an Incident.
Accordingly, a Customer user shall contact one of the Customer Contact persons
when the user believes there is a requirement for such escalation. If the
Customer Contact person chooses to escalate the Incident, he/she will contact
one of the emergency contacts detailed above.
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If the Contact Person is directed to a beeper or a Voice Mail, the MCC is
responsible to contact him/her back within thirty (30) minutes from the moment a
message has been left.
The Customer Contact persons may escalate an Incident priority to any priority.
Examples of when an escalation can occur are as follows:
o The Customer Contract has no ability to report an Incident to the
Ticketing System because of technical problems.
o An Incident has been opened and there is a need to increase the Priority
in order to achieve a faster resolution time.
o An incident has been opened and HP-OMS has not resolved the Incident in
accordance with the Service Levels, resulting in a need to increase the
Priority in order to achieve a faster resolution time.
HP-OMS RESPONSIBILITIES
o For technical emergency escalation process, HP- OMS MCC will activate
all necessary contacts to ensure problem resolution according to HP-OMS'
Service Level commitments.
o Upon initiation of a service emergency escalation process, the HP-OMS
Project Manager will conduct a process investigation.
o HP-OMS Project Manager will ensure resolution according to HP-OMS'
Service Levels
o HP-OMS will submit a report to site/office manager and Customer's HP-OMS
coordinator as described in Appendix H herein (Escalation Management
Report).
o Upon logging of MUO or Critical Incidents, or changing the Incident
priority to MUO or Critical, HP-OMS will work continuously on resolution
until problem is solved or Customer's representative approves a work
around or temporary fix, in accordance with the Services Levels and
subject to the applicable Service Level Credits.
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CUSTOMER RESPONSIBILITIES
o Instruct the contact persons listed in Appendix A herein about the
conditions to use the above process.
The Customer will emphasize that the process should be initiated on emergency
cases only.
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FIGURE 6: ESCALATION PROCESS WORKFLOW
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5.10 ADOPTING HP-OMS RECOMMENDATIONS- [XXXXXXX: TO BE
REVIEWED]
If, in order for HP-OMS to meet the Service Levels, HP-OMS determines that a
Change or an action must be taken (HP-OMS Recommendation). This Recommendation
will be introduce by using Change Management Process and can be one of the
following:
1. HP-OMS Recommendation that does not require additional costs: The
Recommendation must be reviewed by the Change Advisory Board (CAB). In
cases of service failures before the change was implemented or if the
customer did not approve the recommendation - The related service will be
measured in parameters different then the original SLA parameters during
the resolution time but all other SLA indicators will be kept.
2. HP-OMS Recommendation that required additional costs:
(i) Borne and paied by HP-OMS, provided that HP-OMS should have reasonably
foreseen this requirement, based on its review of Customer's requirements
during the Due Diligence process;
(ii) Borne and paied by the Customerif HP-OMS should not reasonably have
foreseen this requirement, based on its review of Customer's requirements
during the Due Diligence process; or
(iii) Addressed according to another mechanism, if mutually agreed by the
parties.
In any case, HP-OMS shall provide at least two (2) different technical
recommendations for a resolution of the foregoing problem.
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6 SERVICE COMPONENTS
The following table describes the ownerships and the level of responsibility for
the major services and process setout under this agreement:
"OWN" means the highest level of responsibility that a party has for a service
or a process or a function set out in this agreement. Including, without
limiting: Full Support, propriety ownership, managing, maintaining, operating,
updating of a service or a process or a function set out in this agreement
"PARTICIPATE" means responsibility of a party to ensure that the other party can
do fill its responsibility for a service or a process or a function set out in
this agreement. Including, without limiting: assist, report, reply support,
inform in regarding of a service or a process or a function set out in this
agreement
TABLE 7: MAJOR SERVICE COMPONENTS DESCRIPTION
MAJOR SERVICE ITEMS HP-OMS CUSTOMER WORK REFERENCE COMMENTS
------------------------- ----------- ---------- ----------------- ------------
XXX - Workstation Own --- EXHIBIT A -
Environment Services SECTION 2
EXHIBIT B -
SECTION 5.2
Server Environment Own --- EXHIBIT A -
Management SECTION 3
EXHIBIT B -
SECTION 6.4
Hardware Support Own --- Exhibit A -
Sections 2,3
EXHIBIT B -
SECTION 5.3
Mail Administration Own --- EXHIBIT B -
SECTION 5.5
Exhibit C -
Section
LAN / WAN Management Own --- EXHIBIT A -
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MAJOR SERVICE ITEMS HP-OMS Customer WORK REFERENCE Comments
------------------------- ----------- ----------- ----------------- ------------
Business Applications According According to EXHIBIT A -
(Clarify, to Exhibit Exhibit N SECTION 5.2.1
Business Object, N Table 1 Table 1 EXHIBIT B -
Web Intelligence, Citrix) SECTION 6.12
Other Business Application: Participate Own EXHIBIT A - Customer is
Systems Union SECTION 5.2.1 the owner of
Lavi EXHIBIT B - the Software.
Kav Ma'arch SECTION 6.12 HP-OMS will
Xxxxx Xxxx provide Make
Replicon It Work support
Customer Software Participate Own EXHIBIT B - Customer is the
SECTION 6.1 owner of the
Software.
HP-
OMS
will
provide
Make
It Work support
Customer Proprietary Participate Own Exhibit B - Customer is the
Software owner of the
Section 6.1 Software. HP-OMS
will
provide
Special
Support
Oracle Application Participate Own Exhibit B - Customer is
Section 6.1 the owner of
the Software.
HP-OMS will provide Make
It Work
support
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Statement of Work (SOW)
MAJOR SERVICE ITEMS HP-OMS Customer WORK REFERENCE Comments
------------------------- ----------- ----------- ----------------- ------------
HP-OMS Software Own Participate EXHIBIT A -
SECTION 2
EXHIBIT B -
SECTION 6.1
EXHIBIT C -
SECTION 1.8
HP-OMS Software, Own --- Exhibit A -
Customer Software SECTION 7.1
license management Exhibit E -
and procurement Exhibit C -
SECTION 1.8
UNIX Support Own Participate EXHIBIT A -
SECTION 4
Exhibit B -
SECTION 6.7
Storage Support Own --- EXHIBIT B -
SECTION 6.8
Security Systems Own Participate EXHIBIT A -
o Anti-Virus; SECTION 3.2.4
o Firewall; and Exhibit B -
o Content Protection Sections 6.9,
6.10, 6.11
Incident management Own Participate Exhibit A -
SECTION 2.2.1
Exhibit B -
SECTION 4
Weekly/Monthly/Quarterly Own Participate EXHIBIT B -
Reports SECTION 5
IMAC Own Participate
Telephony --- Own Exhibit A -
Section
R&D Tasks --- Own Exhibit A -
Section
Technology Refresh Own --- Exhibit E -
Section
EXHIBIT C -
1.8
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6.1 SOFTWARE SUPPORT AND MIANTEINACE
In order to define the Parties duties and responsibilities as for Software
support, all Customer Software and HP-OMS Software items have been classified in
Exhibit I Table 1.The classification was done according to the levels of
support, 3rd party support and maintaince and Software upgrades responseblities.
6.2 XXX ENVIRONMENT SUPPORT
HP-OMS will perform Full Support, including without limitation, troubleshooting
and problem solving in the IT Environment regarding events concerning hardware
(e.g. workstations, peripherals, etc.) and software, including the following
tasks:
1. Problem analysis
2. Preliminary search of the source of problem in network related problems
3. Restoration of service as soon as possible (with temporary fix if needed)
4. Directing hardware to maintenance in the event of hardware failure
5. Problem escalation to specialist if needed
6. Remote user support: Dialup tool (AT&T, Secure remote) - If applicable
HP-OMS will deliver an operational Computer PC or laptop device to a Customer's
end-users as required and agreed. The PC / Laptop delivery will comprise the
following tasks:
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o Assembly and installation of operating system and pre-defined utilities
and applications
o Functional testing of hardware
o Deployment of clients based on agreed configuration specifications,
acquisition rate and schedule
HP-OMS WILL PROVIDE FULL SUPPORT FOR HP-OMS SOFTWARE, INCLUDING BUT NOT LIMITED
TO:
o MS office
o WinZip
o Anti Virus
o Web Browser - Internet Explorer (for standardization propose)
o [**]
o Babylon
o Acrobat read/write
o [**]
o Oracle client
o SQL DB client
o OS: Microsoft Windows and UNIX OS used by the Customer and still
supported by the original manufacture (UNIX OS that are no longer
supported by the original manufacture will be supported on a Special
Support basis)
Note: The usage of new versions is part of the provision of the Services. The
deployment of a new version will be handled according to the Change Management
Process defined in SECTION 8.
HP-OMS WILL PROVIDE MAKE IT WORK SUPPORT FOR CUSTOMER SOFTWARE, INCLUDING BUT
NOT LIMITED TO:
o All software purchased by the Customer (i.e. R&D tools, CAD/PDM tools,
Microsoft products, etc.)
o Software support to peripheral devices
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o PDA and Cellular phones will be supported to allow interface connection
between them and Customer's working IT Environment (i.e. connection to
MS-Outlook).
HP-OMS WILL PROVIDE SPECIAL SUPPORT FOR HARDWARE AND SOFTWARE, WHICH IS NEITHER
HP-OMS HARDWARE, HP-OMS SOFTWARE, OR CUSTOMER SOFTWARE, INCLUDING BUT NOT
LIMITED TO:
o Palm software support
o Windows 95
o Windows Millennium
o Additional support to applications which were defined as Make it work
Support
o Novell network support
o R&D application configuration
OUT OF SCOPE:
o All personal purchased applications
o Shareware software
o Freeware software
o Netscape web browser
EXCEPTIONS:
o During the Transition and Stabilization Phases, HP-OMS will still provide
Special Support for Customer's applications defined as out of scope (i.e.
shareware application)
o HP-OMS will provide Make it work Support for all items which are not
included within HP-OMS Software or HP-OMS Hardware and used for R&D
purposes
o Application support for applications not included within HP-OMS Software,
Customer software or HP-OMS Hardware and not used for R&D purposes will
be given with the applicable Customer Site manager approval.
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6.3 HARDWARE SUPPORT
HP-OMS will provide Full Support for all HP-OMS Hardware, including without
limitation, responsibility for the following actions:
0 Client PCs Hardware Incidents
0 Diagnosis of Hardware problems on Client PCs
0 Repair and/ or replacement of equipment
0 Backup media tapes worldwide
0 Manage repair process (contact 3rd party, ship, receive, supervise, etc.)
for all HP- OMS Hardware, including peripherals and non-HP products
NOTE: HP-OMS will provide alternative hardware in the event the hardware repair
will take more then 1 day.
SUPPORTED HARDWARE:
o All HP-OMS Hardware
EXCLUDED ITEMS (WILL NOT BE SUPPORTED OR SUPPLIED BY HP-OMS)
o PDA & cell phone hardware
o Consumables will not be supplied by HP-OMS (printer toners, cartridges,
paper, cleaning kits, etc.)
o Peripheral devices (which are not included in HP OMS Hardware):
o Hardware warranty and SLA to these peripherals will be
the original warranty provided by the vendor /manufacturer.
HP-OMS will not provide any extension to that service,
6.4 SERVERS ENVIRONMENT
o HP-OMS will provide Full Support for the Customer's server environment.
The service will include, without limitation, Full Support for all server
types (e.g., PDC, file servers, print servers, application servers,
Windows, UNIX, etc.). Such Full Support includes the following services:
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6.4.1 BACKUP
o HP will report to the Customer on a weekly basis on successful backup
completion company wide (or any problems)
o Backup Software: backup routines and restore
o Customizable backup solutions
o Ability to perform unattended backups
o Service spanning multiple operating platforms
o Daily measurement and review of completion rates for all scheduled
backups
o Backup tapes and media as defined in backup operating SLA in Exhibit C,
Appendix A, Section 2.8 - (Backup and Restore SLA)
o Media management (Note: At Class 2 Customer Sites, tapes rotation will be
Customer's responsibility)
o Responsibility of backup media
o Preparation and coordination of backup media to be shipped to safe
location
o Backup problems - Problem analysis - search of the source of problem,
restoration of service as soon as possible (with temporary fix if needed)
o Central Backup location of user data. Note: It will be end-user
responsibility to save workstations' data to central location to be
backed up
o HP-OMS will do a restore test on 3 selected items according to Customer
request every 3 months at each Customer Site
o According to customer request all servers' data will be defined to be
backed up
o Restore services will be done according to end-user request
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6.4.2 GENERAL SYSTEM ADMINISTRATION
o Windows administration: user and group management
o Password management
o Login script
o Day Light Saving Time - Implement changes and support to all servers and
application systems
o Time server administration
o Software management services - Fixes, patches, service packs and new
versions will be installed and managed by HP-OMS according to HP-OMS
guidelines and professional judgment pending Customer approval
o Access control management (Share, NTFS, etc.)
o Active directory management (Sites, replication)
o Print queue management - Add and manage print queues
o Domain and Trust management
o FTP administration - Internal & External
o Monitoring of LOG files on a regular basis to reveal server and services
problems
o Monitoring Server up time using the monitoring system (HPOV)
o Monitoring Server Services to enable proactive alerts (i.e.,
automatically generated Incidents)
6.4.3 WEB SERVERS:
o Operating system
o IIS operation
o Security
o FTP
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EXCLUDED ITEMS (WILL NOT BE SUPPORTED BY HP-OMS):
o Backup of personal computers and laptops
o Backup of personal development environment
o Web content
6.5 MAIL ADMINISTRATION
HP-OMS will provide Full Support for the Customer's email system. Such Full
Support includes, without limitation, the following services:
o Mailbox management:
o Add / remove /change users
o Quota management
o Exchange database backup and restore
o Exchange Database defrag on a regular basis (6 month)
o Distribution list management
o Exchange Antivirus management
o Mail routing
o Exchange monitoring
o Monitoring Exchange Server Services using HPOV
6.6 LAN/ WAN MANAGEMENT
HP-OMS will provide Full Support for the Customer's network infrastructure.
THE CUSTOMER'S NETWORK INFRASTRUCTURE INCLUDES, WITHOUT LIMITATION, THE
FOLLOWING ITEMS:
o LAN devices:
o All LAN equipment
o Manageable and configurable routers/hubs/switches
o Domain Controllers
o Trust relationships management
o WAN monitoring - See description in Exhibit C, Appendix A, Section 2.4
(WAN Availability)
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o WAN security:
o Firewall support
o VPN
o Content Prot ection (i.e. eSafe) / Antivirus
o DNS Administration - Internal and External (Internet)
o WINS administration
o DHCP Administration - Management and Scope definition
o External Mail Routing Management (Incoming & Outgoing)
o Remote user support: Dialup tool (AT&T, Secure remote)
o ISP monitor and control
o HP-OMS will define and supervise the work of any 3rd
party vendors performing network changes
EXCLUDED ITEMS (WILL NOT BE SUPPORTED BY HP-OMS):
o Telephony operation and support
o Passive network infrastructure (wall cables, T.O., etc.)
6.7 UNIX SUPPORT AND ADMINISTRATION
HP-OMS will provide Full Support for the Customer's Unix systems.
THE TYPES OF SERVICES TO CUSTOMER UNIX SYSTEMS SHALL INCLUDE THE FOLLOWING:
o UNIX system administration and maintenance
o UNIX bugs fixes
o Patches updates
o UNIX version control
o UNIX Workstation and server hardware support
o UNIX Workstation OS support
o NIS Server administration and support
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o UNIX time synchronization activities and support
o Support end-users with Exceed problems
o Update UNIX backup procedures
o UNIX scripts for non R&D purposes
This list shall not prevent Customer from including additional items of similar
nature, in case they have been disclosed during the Due Diligence process.
EXCLUDED ITEMS:
o UNIX support for systems which are no longer supported by original
manufacturer will be given on Special Support basis
o HP-OMS will not perform UNIX development or other R&D tasks
o UNIX support for development servers will be OS install/reinstall only
6.8 STORAGE SUPPORT
HP-OMS will provide Full Support Customer's storage systems, shall include the
following services: Maintenance, management, monitoring and operation of storage
systems
o Optimizing storage usage and availability
o Backup & Recovery according to agreed procedures
o Increase storage by 10% per year (in accordance with EXHIBIT C, APPENDIX
A, SECTION [2.11], (TECHNOLOGY REFRESH PROGRAM SLA)
This list shall not prevent Customer from including additional items of similar
nature, in case they have been disclosed during the Due Diligence process.
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6.9 ANTIVIRUS ADMINISTRATION
This service component focuses on the prevention, isolation and removal of
viruses before they can impact the Customers' businesses. HP-OMS will provide
Full Support for the Customer's Antivirus systems. Such support shall be
provided after installing the most up-to-date version of the Antivirus system on
all workstations and servers as defined in Exhibit D, and will verify the daily
and weekly updates of such systems. Full Support shall include the following
items
o Antivirus updates
o Virus crises management
o Service recovery due to virus attack
o Updates of virus definition file worldwide
o Monthly report of any Incoming and outgoing infected e- mails
This list shall not prevent Customer from including additional items of similar
nature, in case they have been disclosed during the Due Diligence process.
6.10 FIREWALL
HP-OMS will provide Full Support of the Customer's Firewall systems to secure
the Customer Internet gateways worldwide at all Customer Sites, and provide Full
Support for the Secure Virtual Network (VPN) Architecture between all Customer
Sites.
In addition, HP-OMS will provide VPN architecture security infrastructure that
enables secure and reliable Internet communications. HP-OMS shall secure the
Customer communications and resources of the Customer networks, remote
employees, branch offices and partner.
HP-OMS will provide Firewall and VPN Services according to the Customer Security
Policy that will be defined by the customer. In addition HP-OMS will make
changes to the Firewall and VPN Services according to changes that will be
approved by the Change Management process.
6.10.1 FIREWALL ADMINISTRATION
HP-OMS will provide Full Support for firewall administration, shall include, the
following:Add / Maintain Rule base
o Add / Change / Remove site
o Manage "F/W Management"
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o Backup "F/W Management"
o Incident Management
o Secure Remote Administration
o Full Firewall management
o Keeping the firewall versions up to date
o Comply with the Customer Security Policy
This list shall not prevent Customer from including additional items of similar
nature, in case they have been disclosed during the Due Diligence process.
6.11 CONTENT PROTECTION
HP-OMS will provide Full Support for content protection of the Customer with
proactive, multi-tiered Internet Content Security for gateway and mail servers,
protecting the entire IT Environment from:
o Viruses, Trojans, worms, blended threats, and other malicious code that
destroys or steals digital assets
o Security exploits in corporate email servers and email clients
HP-OMS will provide content protection Services according to the Customer
Security Policy that will be defined by the customer. In addition HP-OMS will
make changes to the content protection Services according to changes that will
be approved by the Change Management process.
6.11.1 CONTENT PROTECTION (ESAFE) ADMINISTRATION
HP-OMS will provide Full Support for content protection (Esafe) administration,
including without limitation, the following:
o Monitor viruses
o Maintain e-Safe servers and application
o Log checkups and problem fix
o Keeping the Antivirus definitions up to date
o Provide Customer with a monthly report of the number of viruses stopped
from entering and leaving the Customer network(s)
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6.12 BUSINESS APPLICATION SUPPORT
HP-OMS will provide Full Support for the Customer's business applications
included within the HP- OMS Software.
HP-OMS will provide Make it Work Support for business applications included
within Customer Software.
BUSINESS APPLICATIONS WITHIN HP-OMS SOFTWARE, RECEIVING FULL SUPPORT FROM
HP-OMS, SHALL INCLUDE WITHOUT LIMITATION:
o Oracle and SQL data base administration - Only for Business IT
environments (i.e. Clarify, Xxxxx Xxxx, SUN)
o Clarify - full application support (administration, application and users
support):
o Administration - add/change users
o Tech Support - Administration and user support
o License Key generation ([**]) Interfaces programming and
maintenance
o Server technical support
o End-users technical support and error fixing
o Maintain [**] business rules
o Maintain [**] UI
o End-user training
o [**]- full support - Administration and management
o [**] - Universe maintenance
o Web Intelligence support
o Minor customization of [**] interface
BUSINESS APPLICATIONS WITHIN CUSTOMER SOFTWARE, RECEIVING MAKE IT WORK SUPPORT
FROM HP-OMS, SHALL INCLUDE:
o [**] - General administration and application support
o Lavi - General administration and application support
o Kav Ma'archot - General administration and application support
o Xxxxx Xxxx - General administration and application support
o [**] - General administration and application support
o 3rd Tier support and maintenance contract for all Busniess Application
will be in accordance to Exhibit N (Customer and HP-OMS Software)
Table 1.
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This list shall not prevent Customer from including additional items of similar
nature, in case they have been disclosed during the Due Diligence process.
EXCLUDED ITEMS (WILL NOT BE SUPPORTED BY HP-OMS):
o Every ASP (Application Service Provider) in use will be supported on a
Make It Work Support basis only (i.e. XxxxxXxxxx.xxx)
o Code changes except for [**] (CRM) code
6.13 INSTALL, MOVE ADD OR CHANGE (IMAC)
HP-OMS divides IMAC activities in 2 classifications:
1. Small IMAC - Software Installation (does not include operating system)
2. Large IMAC - Install, add, move, relocate of Hardware, operating system
upgrade and Hardware change of owner (waterfall)
HP-OMS will provide the Customer with unlimited small IMAC activities and will
provide Large IMAC according to the following description:
o Sites with less then [**] end-users - [**] Large IMAC events a month per
site
o Sites with [**] end-users - [**] Large IMAC events a month per site
o Sites with [**] end-users - [**] Large IMAC events a month per site
o Sites with [**] end-users - [**] Large IMAC events a month per site
o Sites with more than [**] end-users - [**] Large IMAC events a month
per site
HP-OMS and Customer will review the IMAC figures above once a year and mutually
agree to changes in the numbers of large IMAC events.
Any Large IMAC will comprise the following tasks:
1. Contacting end user or end users' representative, confirm location(s) and
any special considerations
1. Location change will be at the same Customer Site
2. Disconnecting cables and peripherals
3. Transfer of the equipment if in same floor or building (except where
Customer Site includes more then one building or floor)
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4. Installation with same procedures as mentioned in the Hardware
installation tasks
5. Hardware change between [**] end-users will be considered [**] Large IMAC
events
6. Testing system functionality following restore
7. Receiving end user and/or Customer's acceptance of the procedure
HP-OMS RESPONSIBILITIES:
o Manage the logistics for moving between sites (packing, unpacking,
assemble, disassemble, etc.)
o In the event of Large IMAC events planned by the Customer, HP-OMS will
set up in advance the necessary resources to support such events
CUSTOMER RESPONSIBILITIES:
o Order and pay for packing materials and/or services, insurance and other
costs relating to the shipping
o Inform HP-OMS representative if a massive IMAC is planned in advance
(Time line will be agreed mutually)
6.14 SCOPE AND OUT OF SCOPE WORK
The following mechanisms will be used by both parties throughout the Term in the
event of work which is out of the scope of the Services.
BANK OF WORK HOURS
The "Bank of Work Hours" is a billing rate for projects requiring up to fifty
(50) person hours of work that is out of the scope of the Services. In such
events, the Work will be done as needed with no delay and will be charged and
paid for at the Bank of Work Hours rates set out in Exhibit E, Section 3.2.
HP-OMS shall not perform any out-of-scope services at the Bank of Hours rates,
without obtaining Customer's prior written consent. The Customer and HP-OMS will
specify all relevant details for Bank of Work Hours projects pursuant to a
written statement of services, signed by the parties.
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At least once a month, the HP-OMS Project Manager will produce a report of Bank
hours' utilization and accounting.
6.15 TECHNOLOGY REFRESH PROCESS
HP-OMS shall comply with the Technology Refresh Program described herein and in
EXHIBIT C, APPENDIX A, SECTION [2.11] (TECHNOLOGY REFRESH PROGRAM SLA).
SCOPE
o All HP-OMS Hardware and HP-OMS Software, excluding the Add-On Assets
("Technology Refresh Assets")
o All Customer Sites.
HP-OMS RESPONSIBILITIES
o Purchase and supply of all Refreshed Assets within the scope of the
Technology Refresh Program, in accordance with EXHIBIT C, APPENDIX A,
SECTION [2.11] (TECHNOLOGY REFRESH PROGRAM SLA)
o Procurement Planning:
o Product acquisition plan and process
o Maintenance of standardized product lists, consisting of HP-OMS
Hardware (excluding Hardware within Add-On Assets) and
products/configurations.
o Provision of product availability and shipment status information
o Communication of product availability and configuration changes
from suppliers
o Asset Tracking:
o Technology acquisition and refresh plan
o Methodologies, processes and tools for gathering, tracking and
management of asset information
o Hardware configuration
o HP-OMS Software licenses (excluding Software within Add-On Assets)
o Asset tracking of Technology Refresh Assets
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o Asset data collection, tagging, tracking, management, reporting
o Physical inventory of the existing environment
o Warranty management
o Contract information maintenance
o Provision and ownership of hardware
CUSTOMER RESPONSIBILITIES
o Refresh of Customer Software is procured at Customer's expense.
o Provide 6-month order forecast twice a year
JOINT RESPONSIBILITIES
o Provide a complete delivery plan with complete shipping location
information
7 RELEASE TO PRODUCTION
Release to Production manages the introduction of products and services into the
Customer's IT Environment. This service may include the following:
o Production integration
o Hardware/Software set up
o Service implementation
o Operational testing
o Customer acceptance testing
HP-OMS and Customer will work together closely in this service as each
organization has specific and related responsibilities.
HP-OMS RESPONSIBILITIES
o Manage Release to Production for all tools used to deliver the Services
in scope under the Agreement
o Report changes in the IT Environment to Customer and follow Change
Management procedures where applicable.
o Closely cooperate with Customer to introduce fixes and hot packages to
Customer IT Environment.
o Coordinate downtime to occur during non-working hours and receive
Customer's approval for the downtime
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CUSTOMER RESPONSIBILITIES
o Approve HP-OMS Release to Production plan and cost, if applicable under
the Change Management Process
o Provide HP-OMS with feedback about the quality of Release to Production
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8 CHANGE MANAGEMENT
The CHANGE MANAGEMENT process coordinates, prioritizes, authorizes, schedules
resources for, and assesses the risk of changes to the Customer's IT
Environment. Changes to the IT Environment can occur where there is a request by
a party to:
o Introduce a new Service Component
o Modify or remove an existing Service Component
o Adapt to changes in Customer's IT Environment (e.g., additional offices)
o Resolve an Incident reported to the Ticketing System, which is defined as
out of scope by MCC and approved by the Customer Project Manager.
o Change to Customer business process which are related to the Services
o Changes to IT Environment procedures and work instructions
o Changes to the Service Levels
o Release to production
o Changes to the Security Policy
(Collectively, a "CHANGE")
Changes are scheduled during agreed Change windows to minimize the impact,
unless they are emergency Changes requiring immediate implementation to correct
a problem. All Changes must be approved in accordance with (and unless otherwise
specified in) Table 9 and under a Change Request Form, set out in APPENDIX F
herein (Change Request Form), prior to the implementation of the Change.
88.1 ROLES AND RESPONSIBILITIES
The involvement of people with the correct skills is a critical success factor
to achievement of the objective of the Change Management Solution. The parties
shall appoint each of the applicable individuals to the following defined roles,
required by the Change Management Process, according to the specific Customer
Site involved. Note: a given person may act in more than one role and some roles
may have more than one person involved.
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8.1.1 CHANGE MANAGER(S)
The Change Manager(s) act(s) as the focal point for the Change Management
process. They own the overall responsibility for the successful implementation
of Changes in the supported IT Environment. Customer's Change Manager and an
HP-OMS Change Manager are to be assigned. They must closely interface with one
another and act as one when dealing with the other contributors. They must
decide together on the priority and the category of the Changes as well as on
the composition of the Change Advisory Board (CAB) and the deliverable
prerequisites to the CAB meeting. The Change Manager(s) participate(s) in all
CAB meetings or respectively send delegates. The Customer's Change Manager and
the HP-OMS Change Manager represent a very strong link between Customer and
HP-OMS. They are the central interface between the outsourcing partners
regarding all Changes to the IT infrastructure, their supporting processes and
the corresponding documentation. All decisions must be made in consensus. In the
event consent cannot be achieved repeatedly, the situation will need to be
escalated.
8.1.1.1 HP-OMS CHANGE MANAGER
HP-OMS Customer Change Manager ensures that all aspects of each Change comply
with the HP-OMS IT Risk Management (HP-OMS ITRM) security policies. ITRM
requires a security review for every Change to an IT Environment operated and/or
managed by HP-OMS Operations.
8.1.1.2 CUSTOMER CHANGE MANAGER
The Customer's Change Manager represents the Customer's responsibilities in the
Change Management Process. This person is responsible for working closely with
the HP-OMS Change Manager in order to assure complete Customer involvement.
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8.1.2 CHANGE ADVISORY BOARD (CAB)
The Change Advisory Board (CAB) is a council to discuss and approve Changes
prior to their introduction to the live environment. The Change Manager(s) call
CAB meetings at least on a weekly basis in Israel. Additional CAB meetings may
occur on a case by case basis either in Israel or at the applicable Customer
Site, according to the Changes to be assessed. The procedure is open to define
categories of Changes with dedicated CAB members for each specific Change
category. Categories might be initially defined or introduced later by the
Change Manager(s) and approved by the members of the assigned CAB. The members
of the CAB can be either fixed for all Changes or categories of Changes or they
vary depending on the Changes to be assessed. The Change Manager(s) should
always be a member of the CAB. For Minor Changes, the Change Manager(s) may be
the sole members of the CAB and approve Changes quickly and without overhead.
CAB meetings shall be face to face meetings, unless otherwise approved by the
Customer Change Manager, in which case the applicable CAB meetings may be
planned and executed as phone conferences, email circulation or whatever else is
appropriate and efficient. The composition of the CAB as well as the definition
of the CAB meeting is within the responsibility of the Change Manager(s). The
objective is to efficiently assess and approve Changes as extensively as needed
for secure systems operation but also as quickly as possible in order to avoid
risks without slowing down the Change process. To this end it is crucial for the
Change Manager(s) to define the CAB with a minimal but sufficient set of
approvers for the particular Change / Change category.
8.1.3 CHANGE REQUESTER
The initiator of any Change to the IT Environment is the Change Requester. This
person initiates the Change, and provides a clear description of the goals and
objectives for the Change. The Change Requester fills out the Request for Change
(RFC) Form. On behalf of the Customer side, only the personnel listed in the
Customer Contact list described in Appendix A (CUSTOMER STAFF AUTHORIZED TO
TRANSFER CASES OR CALL HP-OMS), are allowed to initiate Changes. Customer may
change the Customer Contact List upon written notice to HP-OMS. From HP-OMS, the
Project Manager or the HP-OMS Personnel working at the applicable Customer Site
are allowed to initiate a Change request. Emergency Changes by definition have
to be introduced via Incident Management, according to SECTION 5 herein.
8.1.4 CHANGE SUPERVISOR
The Change Supervisor is an HP-OMS Personnel responsible for leading, managing
and supervising the progress and execution of a given Change as assigned by the
HP-OMS's and Customer's Change Manager).
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Activities include (where assigned):
o Acting as lead planner - assigned according to the work on the planning
side to prepare a successful implementation of a Change.
o Accuracy and completeness of Change documentation for a given Change,
including Change description, Change classification, implementation plan,
risk and impact assessment, risk/benefits comments, test plan, backup
plan, communication plan, billing requirements , Change schedule &
resource information.
o Leading and coordinating the deployment of the Change; including resource
planning, scheduling, build & test, release to production and monitoring.
o Taking part in the Change review and definition of follow up actions and
close successful Changes.
The person in the Change supervisor role is a function of the type and scope of
each given Change. It is common for the Change supervisor to be one of a small
group a technical leads associated with a given Customer account.
8.1.5 CHANGE TESTER(S)
Subject matter experts who conduct testing and document test outcomes for a
given Change.
The Change tester executes tests defined in the test plan and documents test
results. The Change tester has the necessary technical expertise to identify
flaws and shortcomings in the implementation and test plan as well as to
evaluate appropriately the outcome of the tests conducted. A Change tester
documents and immediately reports any newly identified risk to the Change
Supervisor.
8.1.6 CHANGE COORDINATOR
The Change Coordinator is an HP-OMS Personnel responsible for coordinating and
administrating the execution of a given Change as assigned by the HP-OMS's.
Activities include (where assigned):
o Meeting schedule and coordination
o Minuets of Meetings
o Schedule, coordinate and locate the CAB weekly meeting
o Verify the closing of RFC form on HP-OMS information system
8.1.7 CHANGE IMPLEMENTER(S)
Subject matter experts who perform and document progress and outcome of tasks
defined in the implementation plan for a given Change.
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The implementer has the necessary technical expertise to identify flaws and
shortcomings in the implementation plan as well as appropriately react following
the back out plan (or escalation) on implementation failure. The Change
implementer is also in charge of conducting the production
acceptance testing as defined in the test plan. A Change implementer documents
and immediately reports any newly identified risk to the Change supervisor.
8.2 CHANGE CATEGORIES
A Change is always applied within one of the following Change categories where
all Changes follow the Change Management Process:
TABLE 8: CHANGE CATEGORIES
# OF INFLUENCE ON APPROVAL
CATEGORY DESCRIPTION SITES BUSINESS PROCESS OF
----------------- ----------------------------- --------- ---------------- ---------
Minor Change Change that affects One No CAB
only one site, with no influence
influence on the daily
business processes.
Medium Change that affects One or Little CAB
Change one or more sites, with more influence
little influence on the
daily business
processes.
Major Change Change that affects More Influence CAB
more then one site, than one
with influence on the
daily business
processes. Any side
may not implement this
Change without prior
approval from the CAB,
in writing
Commercial Change has major More Influence Stirring
Change commercial affects on than one Committee
this agreement and/or
has major affects on
the business processes
of either sides
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# OF INFLUENCE ON APPROVAL
CATEGORY DESCRIPTION SITES BUSINESS PROCESS OF
----------------- ----------------------------- --------- ---------------- ---------
Emergency Minor Change or One or No or little Country
Change without Medium Change more Influence Manager
extra cost to required on an or
Customer emergency basis that Customer
affects one or more Project
sites and is essential for Manager.
a resolution of a serious Written
problem in the IT Report will
Environment. In such be to CAB.
case HP-OMS may submitted
implement the Change afterwards
without Customer
approval, provided
that the Change is
reported to Customer
promptly after such
implementation.
Emergency Minor Change or One or No or little Country
Change with Medium Change more Influence Manager
extra cost to required on an or
Customer emergency basis that Customer
affects one or more Project
sites and is essential for Manager.
a resolution of a Written
serious problem in the IT report will
Environment. HP-OMS be afterwards
should get prior submitted to CAB.
approval from the
Customer Project
Manager or the
manager of the
applicable Customer
Site, in writing. In such
case HP-OMS may implement
the Change without
Customer approval,
provided that the Change is
reported to Customer
promptly after such
implementation.
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The above-mentioned Change categories are defined from an operations point of
view and such Changes may also impact pricing, provided that the Change is a
request for services, Hardware or Software, which are out of the scope of the
Services, or request for change to the Service Levels in accordance with
Appendix A of Exhibit E (Bandwidth Pricing).
The following Sections summarize responsibilities at the task level for Change
Management of the Customer IT Environment.
HP-OMS RESPONSIBILITIES
o Own all Change requests initiated by HP-OMS Personnel
o Prepare a detailed technical proposal for the Change request, the cost
and the cost implications on the Target Price.
o Review, approve, respond to and perform Change requests following the
Change Management Process within the Service Boundaries.
CUSTOMER RESPONSIBILITIES
o Own all Change requests initiated by the Customer
o Generating/forwarding RFCs to HP-OMS when needed
o Consider HP-OMS's recommendations on Change requests which directly
impact the Service Levels.
o Approve Change requests in accordance with TABLE 8.
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8.3 PROCESS DESCRIPTION
After a party submits a Change Request Form (in the form set out in Appendix F
herein), the Change Managers shall first categorize the Change and then
determine whether the proposed Change is within or outside the scope of the
Services. To the extent a Change requires the performance of services, which are
within the scope of the Services, HP-OMS shall provide the Change at no
additional fee or cost payable by Customer. The Change should be approved
according to the definitions in the hange Category TABLE NO 8. To the extent
that a Change requires the performance of services, which are outside the scope
of the Services, the following shall apply:
8.3.1 ADDING OR REMOVING A CUSTOMER SITE
In the event that Customer adds or removes a Customer Site, the Change will be
categorized as a Minor Change. The Target Price will be updated according to the
mechanism set out in Exhibit E, Appendix A, Section [1.1] (USER
INCREASE/DECREASE AT CUSTOMER SITES). HP-OMS will prepare a written detailed
proposal for a one-time only fee, which will include all fees for the relevant
work, Software licenses and Hardware to be provided, in accordance with Exhibit
E, Appendix A (Bandwidth Pricing).
8.3.2 ADDING OR REMOVING A SYSTEM
In the event that Customer adds or removes a System, the Change will be
categorized by the Change Managers of both parties.
With Minor Changes, the Target Price will not be updated. HP-OMS will prepare a
written detailed proposal for a one-time only fee. The fees for the relevant
services will be based on the Bank of Work Hours rates set out in Exhibit E.
With Medium Changes, the Target Price may be updated. HP-OMS will prepare a
written detailed proposal for the change of the Target Price and a one-time only
fee. The fees for the relevant services will be based on the Bank of Work Hours
rates set out in Exhibit E.
With Major Changes, HP-OMS will prepare a Request for Information (RFI) and/or a
Request for Proposal (RFP). Then HP-OMS will issue a proposal for both the
change to the Target Price and a one-time only fee.
In all cases, the Customer may consider the proposals of third party suppliers,
however HP-OMS will have the rights set out in the AGREEMENT, SECTION 11.3
(CUSTOMER RIGHT TO USE CUSTOMER CONTRACTS).
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8.3.3 CHANGING SERVICE LEVEL
In the event one of the parties submits a request to change a Service Level, the
Change will be categorized as Commercial Change. The Stirring Committee will
discuss the issue and HP-OMS will prepare a written document of the impact of
such Change on the Target Price and/or a one-time only fee, according to the
process defined in EXHIBIT C SECTION 1.7 (ADDTIONS, MODOFICTIONS AND DELTIONS OF
CRITICAL SERVICE LEVELS).
8.3.4 INTRODUCING OR ELIMINATING A SERVICE
In the event of the introduction of a new service or the elimination of an
existing Service, the Change will be categorized by the Change Managers of both
parties and then they will define the Service Measures.
The parties may not categorize the introduction of a new service or the
elimination of an existing Service as a Minor Change.
With Medium Changes, the Target Price may be adjusted (upwards or downwards).
HP-OMS will prepare a written detailed proposal for the change of the Target
Price and a one-time only fee (in the case of the introduction of a new service.
The services fee will be based on the Bank of Work Hours rates set out in
Exhibit E.
With Major Changes, HP-OMS will prepare a Request for Information (RFI) and/or a
Request for Proposal (RFP). Then HP-OMS will issue a proposal for both the
change to the Target Price (upward or downward) and a one-time only fee (in the
case of the introduction of a new service.
In all cases, the Customer may consider the proposals of third party suppliers,
however HP-OMS will have the rights set out in the AGREEMENT, SECTION 11.3
(CUSTOMER RITGHTS TO USE CUSTOMER CONTRACTS).
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8.3.5 EMERGENCY CHANGE
In the event of an Emergency Change, HP-OMS, as soon as possible and on an
emergency basis, will provide Customer with a firm estimate of the services to
be performed; the Customer will review, consider, negotiate, and/or agree to
such proposal.
If agreed, the (a) one-time only fee for such services will be calculated based
on the actual hours performed by HP-OMS, chargeable at the Bank of Work Hour
rates; and (b) HP-OMS shall not perform services in connection with such
Emergency Change, which are chargeable in excess of the estimated fees, without
obtaining Customer's prior written consent thereto.
With Emergency Changes that are Minor Changes, the Target Price will not be
updated.
With Emergency Changes that are Medium Changes, HP-OMS will prepare a written
detailed proposal for the change to the Target Price. If the Customer does not
approve such change, the issue will be transferred to the CAB on an emergency
basis in a time frame of 4 hours. If the CAB does not approve such change,
Customer may request and HP-OMS shall perform the proposed services to address
the Emergency Change, with the dispute to be resolved in accordance with
AGREEMENT, SECTION 21.7 (DISPUTE RESOLUTION PROCESS).
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8.3.6 PROCESS FLOW CHART
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APPENDIX A: CUSTOMER STAFF AUTHORIZED TO TRANSFER CASES OR CALL HP-OMS
The following list of people is authorized to initiate emergency escalation
process (as describe in SECTION 5.9 (EMERGENCY ESCALATION PROCESS herein), call
directly to HP-OMS MCC phone or contact HP-OMS Project Manager directly.
o Custumer Director of IT
o Infrastructure Manager
o Division Manager
o Country Manager
o Customer Executive VP (or above)
o Office Manager
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APPENDIX B: PRIVILEGED ACCESS REQUEST FORM
ACCESS TO PRIVILEGED USERS ON MANAGED SERVERS
POLICY
Customer's users, who need access to an administrative account to one of HP-OMS
Operations managed systems for their job, will be granted access to it by
filling out a Risk acceptance form. The form documents the reason the user needs
the access and has to be approved by their manager, and by HP-OMS OSC
management. The approval will need to be renewed upon expiration of the
Agreement.
HP-OMS' standard policy is that only people in the HP-OMS's Management and
Control Center (MCC) have administrative capability on Customer-managed systems.
We realize that there are occasions where exceptions have to be made, but we
strive to minimize them. We believe this is critical to meet our machine
availability and Customer requirements. For these reasons, we have security
owners for our systems who are expected to be aware of any changes on their
systems and to be involved in any decisions that need to be made regarding these
same systems.
If a person needs administrative capability to perform his/her job, we will work
with him/her to create a shared-root window like solution. This will give
him/her the ability to perform those tasks while minimizing the risk - to either
him/her or us - of giving him/her all capabilities without control.
If a person demonstrates an understanding of system administration and/or this
person's job requires him/her to perform numerous functions as administrator
with time being critical, he/she may be given the ability to become
administrator. This is subject to certain rules, and must be compatible with the
contract terms and approved by HP-OMS management.
We require that individuals outside of HP-OMS's MCC fill out a Risk Acceptance
form, which documents the reason why administrative access is needed and have
this form approved by their manager, the Customer IT management and the HP-OMS
OSC management.
Access on a permanent basis requires an additional Risk Assessment to be signed
by the regional HP Delivery Manager and the regional HP Business Manager, and
will be added as an addendum to the outsourcing contract.
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If person needs occasional functions performed as administrator and these
functions can be scheduled, we would like to continue to see the requests come
to HP-OMS as change request (Request For Change, RFC) and follow the standard
change management process. This would include disk changes, kernel parameter
changes, etc. The vast majority of requests fit into this category.
PRIVILEGED USERS RISK ACCEPTANCE FORM
[[This chapter should be duplicated for each requested access]]
GENERAL INFORMATION
Name of the user:_______________________________
[ ] Customer employee.
Customer Employee ID:
Mail Address: Phone:
Division Name:
Group Name:
Office Location:
Department Name:
User's Manager Name:
[ ] Not a Customer employee.
Mail Address: Phone:
Division Name:
Group Name:
Office Location:
Department Name:
User's Manager Name:
User's Manager Customer Employee ID:__________________________
REQUEST INFORMATION
Requested account name:___________________________________
Operating System:
[ ] Unix [ ] NT
Account requested capabilities or group membership:
[ ] administrator
[ ] backup [ ] power user [ ] users
[ ] Other (Please specify):
Please give the list of machines on which the access is requested:
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Please outline below why access is necessary on each machine listed above:
The access will be:
[ ] Permanent (reviewed at least every month)
[ ] Temporary until:____________________
[ ] Shared root window on request
STATEMENT OF RESPONSIBILITY FOR POLICY EXCEPTION
In COMPLIANCE with documenting the risk above, I acknowledge accepting the risk
and responsibilities for this special access.
[X] I will use this capability only for the reasons listed above
[X] I will manage password control for my user id
[X] I will follow the risk acceptance renewal process
By signing this form, I accept the responsibility for ensuring adequate controls
are in place to safeguard against any security breaches and I agree to follow
HP-OMS's policies, procedures, and standards as well as any local policies,
procedures, and standards.
I have identified and assessed all risks that apply to this request. I further
understand that I am responsible for establishing and maintaining adequate
controls and that I will be accountable for security audit results and for
notifying HP-OMS of any account ownership and/or Exception request changes.
I will follow the standard change management process, send a RFC to HP-OMS
before any major change and notify HP-OMS after any emergency change.
Requested by:______________________________________ Date:________________
Name/signature: Requestor/Account Owner
Approved by: ______________________________________ Date:________________
Name/signature: Requester's Manager
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APPENDIX C: SECURITY AUDITS
Internal HP-OMS auditors and HP-OMS Outsourcing Security Staff audit the HP-OMS
Outsourcing infrastructure regularly. The results of these audits always remain
the confidential property of HP- OMS. HP-OMS shall inform the Customer
immediately of any finding that may result in the compromise of the security of
the Customer IT Environment. During such audits, the HP-OMS auditors may access
Customer's IT Environment, to verify that the security policies are observed and
enforced by HP-OMS personnel, but in any case the auditors will not retain any
Customer Confidential Information. Any audit of Customer's IT Environment shall
be subject to the same prerequisites which must be fulfilled by Customer in the
case of a Customer audit of HP-OMS, as set out below.
Customer may conduct security audits of the relevant HP-OMS environment in
accordance with the AGREEMENT, SECTION [10.10] (AUDIT RIGHTS), provided the
following pre-requisites are performed:
2. A 24-month Non Disclosure Agreement (NDA) signed between HP-OMS and
Customer's independent auditors.
3. Notice of the upcoming audit must be provided a minimum of 10 working
days prior to the audit and cannot be planned during a holiday period.
4. Subject to the AGREEMENT, SECTION 10.10 (AUDIT RIGHTS), A specific
document must be signed between HP-OMS and Customer which represents the
contractual agreement between HP-OMS and Customer while running the
audit. It describes the roles and responsibilities of parties as well as
the terms and conditions which apply during the entire audit.
5. Formal agreement as a document to kick off the audit according to the
definition, the scope and the parameter of the audit as defined. The
document is to include the following:
o The entity which will be conducting the audit;
o The name of the person representing the entity during the audit;
o The time period the audit is targeted to take place;
o The targeted agenda of the audit;
o The objective(s) of the audit;
o The methodology used to conduct the audit;
o The domain(s) targeted to be audited;
o The test(s) that are foreseen by the audit (when targeted)
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6. One HP-OMS representative is designated to welcome and accompany the
audit team throughout the entire audit.
7. The audit minutes and reports remain Customer's property but are made
available to HP-OMS by Customer with the goal to improve the benefit of
working with HP- OMS.
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APPENDIX D: HP-OMS ACCEPTABLE USE POLICY
HP-OMS AND CUSTOMER SHALL NOT:
o Permit the Services to be performed or used in any manner (including,
without limitation, transmission, distribution or storage) for any
purpose that is (or would be):
o Illegal or violate good practice, legislative provisions or
regulations issued by authorities
o Contrary to the instructions on good practice followed in marketing
(e.g., fraudulent or misleading),
o Obscene (as defined by legislative provisions or regulations issued
by authorities in the country where the service is provided),
harassing or distressing (including so-called SPAM mass deliveries),
o Disruptive of or harmful to Network resources or any connected
equipment resources
o An unauthorized use, access or monitoring of any host, any Network
or other network device, or any other breach of any security
measure.
EXAMPLES
Without limiting the foregoing undertaking or attempting to undertake any of the
conduct in the following non-exclusive list which is deemed to violate the
Acceptable Use Policy:
o Alteration of source of data in violation of good practice (causing
origination of malformed data or network traffic);
o Engaging in pyramid or ponzi schemes, impersonations or
misrepresentations which violate instructions on good practice followed
by marketing;
o Identity theft;
o Hacking or scamming (unauthorized use of non-Customer accounts or
resources, scamming, stealing or tricking the release of passwords, etc.)
in violation of legislative provisions or regulations issued by
authorities;
Distribution of harmful code such as computer viruses, worms and trap doors
which cause interference with the Network, network traffic or other users;
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APPENDIX E: REASONABLE REQUEST TO REPACE KEY PERSONNEL, SECURITY OR
COMMUNICATION SUPPLIERS CONTRACTORS
Customer will have the right to initiate a process to change HP-OMS Key
Personnel, security personnel or communication vendors in accordance to the
following events:
o In the event that Customer concludes that a member of HP OMS's Key
Personnel has behaved improperly, or in the event that Customer concludes
that a member of HP- OMS's Key Personnel has continuously shown
insufficient level of proficiency, Customer may notify same to HP-OMS
with a detailed description of said member's misbehavior, or non
proficiency. HP-OMS shall conduct, upon receipt of such notification, a
hearing to such member and if it finds Customer's allegations to be true,
it shall allow such member to present a 30 days improvement plan. If the
Key Personnel did not make an improvement 90 days after such allegations
been originally submitted by the Customer, HP-OMS shall act in order to
replace said personnel with another one.
o In the event that Customer concludes that HP-OMS's communication vendor
or security personnel have failed to comply with their Service
obligations with respect to HP-OMS SLA commitment, Customer may notify
same to HP-OMS with a detailed description of said failures. HP-OMS shall
conduct, upon receipt of such notification, an investigation for such
complains. If found true, HP-OMS will allow such vendor/subcontractor 30
days to provide HP-OMS and the Customer with an improvement plan. If the
vendor/ personnel did not show an improvement process implementation 90
days after such allegations been originally submitted by the Customer,
HP-OMS shall act in order to replace said vendor/ personnel with another
one.
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APPENDIX F: CHANGE REQUEST FORM
ORDER FOR SERVICES PURSUANT TO CHANGE MANAGEMENT PROCESS
This Order for Change Request services is issued pursuant to the Master Service
Level Agreement between TECHNOMATIX LTD ("Customer") and HP-OMS-COMPAQ (ISRAEL)
LTD ("HP-OMS"), dated ________________, 2003 (the "Agreement"), and except as
otherwise expressly stated below, incorporates the terms and conditions of the
Agreement. All capitalized terms not otherwise defined in this Order shall have
the meanings set out in the Agreement.
The following form (RFC) will be used as reference for information system for
Change Management process that will be implemented by HP-OMS.
DATE: _______________________
CHANGE REQUEST NO:
CHANGE REQUESTER:
CUSTOMER CHANGE MANAGER: _______________________
HP-OMS CHANGE MANAGER: _______________________
CHANGE TYPE: Minor
Medium
Major
Emergency
INITIATED BY INCIDENT NO:
INCIDENT DATE:
IMPACTED SERVICES:
POSSIBLE RISK:
DESCRIPTION OF THE CHANGE REQUEST
THE CHANGE IS IN OR OUT OF SCOPE?
FEES/PAYMENT TERMS:
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SPECIAL TERMS AND CONDITIONS
SIGNED FOR AND ON BEHALF OF SIGNED FOR AND ON BEHALF OF
TECNOMATIX LTD [HP-OMS (ISRAEL) LTD]
By: _________________________ By: _________________________
Name: _______________________ Name: _______________________
Title:_______________________ Title:_______________________
Date: _______________________ Date: _______________________
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APPENDIX G - EMERGENCY ESCALATION PROCESS PHONE NUMBERS
HP-OMS will provide the Customer with 2 emergency contact details:
HP-OMS Key Personnel
Name:
Title:
Phone Number:
MCC (Monitor & Control Center) 24/7 technical emergency phone number:
+972-9-______________
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APPENDIX H: REPORTS
WEEKLY REPORTS:
o Total number of service tickets for period
o Calls per sites
o Class classification per priority
o Top 3 most common service categories
o Miss commit service tickets:
o Total number of tickets with missed tickets percentages
o Missed SLA tickets per service
o Number of IMAC requests
o Backload tickets - Tickets that remain unsolved from the last week
o Average Time to close a ticket by priority
o Overall ticket report by priority (display the total number of tickets
per priority and the resolution time for those tickets on the same graph)
MONTHLY REPORTS:
o Total number of service tickets for period
o Calls per sites
o Top end-users with most calls
o Top 3 most common service category
o Service incidents trends
o Number of IMAC requests
o Average Time to close a ticket by priority
o Miss commit service tickets:
o Total number of tickets with missed tickets percentages
o Missed SLA tickets per service
QUARTERLY/ANNUALLY REPORTS:
o Quarterly service incidents trends:
o Availability trends
o Time to resolve trends
o Number of end-users per number of tickets
o Number of users trend
o IMAC requests compared to HP-OMS commitment
Total SLA commitment for credit_________________________
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Exhibit C
Service Levels and Service Level Credits
V 6.0
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Service Levels and Service Level Credits
DOCUMENT INFORMATION
HP Project
Manager: Xxx Xxx
Customer Project
Manager: Na'ama Halperin
Prepared by:
Document Version
No: V 6.0
Preparation Date: 16/09/03
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INDEX
DOCUMENT INFORMATION...................................................... 1
DOCUMENT INFORMATION...................................................... 2
INDEX..................................................................... 3
1 GENERAL PROVISIONS................................................... 4
1.1 GENERAL........................................................... 4
1.2 EFFECTIVE DATE OF SERVICE LEVELS.................................. 4
1.3 REPORTING......................................................... 4
1.4 DEFINITIONS....................................................... 5
1.5 CRITICAL SERVICE LEVEL FAILURES................................... 7
1.6 SERVICE LEVEL CREDITS............................................. 7
1.7 ADDITIONS, MODIFICATIONS AND DELETIONS OF CRITICAL SERVICE LEVELS: 10
1.8 TECHNOLOGY REFRESH PROGRAM........................................ 12
1.9 TIMES............................................................. 12
1.10 EXCEPTIONS..................................................... 12
2 PRIORITIES........................................................... 14
2.1 GENERAL........................................................... 14
2.2 PRIORITY REPORTING................................................ 16
3 SERVICE WINDOW....................................................... 17
3.1 GENERAL SERVICE WINDOW............................................ 17
3.2 MCC SERVICE WINDOW................................................ 17
3.3 DOWNTIME.......................................................... 18
3.3.1 Scheduled/Planned Downtime..................................... 18
3.3.2 Emergency Downtime ........................................... 19
3.4 ON-CALL SERVICE OUTSIDE THE GENERAL SERVICE WINDOW................ 19
3.5 SERVICE WINDOW EXCEPTIONS......................................... 20
4 RESOLUTION CONTINUITY................................................ 21
5 BASELINE INDEPENDENT SURVEYS......................................... 22
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1 GENERAL PROVISIONS
1.1 GENERAL
This Exhibit C is attached to the Master Services Agreement dated as
_____________ by and between HP-OMS and Customer (the "AGREEMENT") and made a
part thereof by reference. Capitalized terms not otherwise defined herein shall
have the meaning specified in the Agreement. This Exhibit C sets forth certain
quantitative Critical Service Levels against which HP-OMS' performance shall be
measured.
1.2 EFFECTIVE DATE OF SERVICE LEVELS.
HP-OMS commits to start the implementation of (and become subject to) the
Service Levels (including without limitation the Critical Service Levels) as of
the completion of the final Transition Milestone at each applicable Customer
Site, as defined in EXHIBIT D (TRANSITION AND STABILIZATION), but no later than
the ten (10) month period following the Commencement Date (the "SERVICE LEVEL
EFFECTIVE DATE").
Customer will start crediting HP-OMS only after the end of the final Transition
and Stabilization Phases, but no later ten (10) months period following the
Commencement Date.
1.3 REPORTING
Unless otherwise specified in this Exhibit C, each Service Level and each
Critical Service Level shall be measured on a monthly basis and reported on a
quarterly monthly basis beginning on the designated Service Level Effective
Date, subject to SECTION 1.7 HEREIN (ADDITIONS, MODIFICATIONS AND DELETIONS OF
CRITICAL SERVICE LEVELS). By the fifteenth (15th) day of each month, HP-OMS
shall provide, as part of HP-OMS' monthly performance reports, a set of soft
copy reports, in a format set out in Appendix B to this Exhibit C, to verify
HP-OMS' performance and compliance with the Service Levels and the Critical
Service Levels. HP-OMS shall provide detailed supporting information for each
report to Customer in machine-readable form suitable for use on a personal
computer and read only access to the Service Systems. The raw data and detailed
supporting information shall be Customer and HP-OMS Confidential Information,
and HP-OMS shall provide Customer with access to such information on-line and
in real-time during the Term.
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HP-OMS will also be responsible for promptly investigating and correcting
failures to meet the Service Levels by:
1.3.1 Promptly initiating problem investigations, including Root Cause Analyses
conducted in accordance with SECTION [4.3] OF THE AGREEMENT;
1.3.2 Promptly reporting problems to Customer in accordance with the escalation
process set forth in EXHIBIT B;
1.3.3 Using all commercially reasonable efforts to correct problems and to
begin meeting or restoring Service Levels as soon as practicable;
1.3.4 Advising Customer of the root cause of problems and the status of
remedial efforts being undertaken with respect to such problems;
1.3.6 Making written recommendations to Customer for improvement in procedures.
HP-OMS will identify root causes, correct problems and minimize recurrences of
missed Service Levels for which HP-OMS is responsible and which cause or
contribute to HP-OMS not meeting the Service Levels.
1.4 DEFINITIONS
Terms used herein with initial capital letters shall have the respective
meanings set forth in the Agreement or its Schedules. The following terms shall
have the meanings specified below:
"AT RISK AMOUNT" means eight percent (8%) of the Monthly Target Charges.
"CRITICAL SERVICE LEVELS" are those service level measurements for each
Incident defined in Appendix A, Section 1 or subsequently defined pursuant to
Section [1.7] (ADDITIONS, MODIFICATIONS AND DELETIONS OF CRITICAL SERVICE
LEVELS) for which Service Level Credits are payable in accordance with this
Exhibit C.
"CRITICAL TIME TO RESOLVE SUCCESS RATE" means the sum of Critical Incidents in
which HP-OMS complied with their Time to Resolve, divided by the total number
of Critical Incidents in an applicable month.
"INCIDENT" has the meaning set out in EXHIBIT B, SECTION 1 (GENERAL;
DEFINITIONS).
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"INCIDENT RESOLUTION" means that the problem that was reported dose not exist
any more or that a work around was found. In case the Time to Resolve of a
Workaround is more then 50% then the required Time to Resolve the incident time
to resolve will be exceeded by 5 working days.
"MEASUREMENT PERIOD" means calendar monthly, unless otherwise provided herein
or agreed by the Parties.
"MONTHLY TARGET CHARGES" means an amount equal to one-twelfth (1/12th) of the
annual Target Price, as specified (and adjusted) in accordance with Exhibit E -
[Pricing].
"MUO TIME TO RESOLVE SUCCESS RATE" means the sum of MUO Incidents in which
HP-OMS complied with their Time to Resolve, divided by the total number of MUO
Incidents in an applicable month.
"PRIORITY" has the meaning set out in EXHIBIT B and in SECTION 2 herein.
"SERVICE LEVEL CREDIT" means any credit payable pursuant to SECTION [1.6]
(SERVICE LEVEL CREDITS) below.
"SERVICE LEVEL CREDIT ALLOCATION PERCENTAGE" means, for a particular Critical
Service Level, the percentage used to calculate the Service Level Credit
payable to Customer in the event of a Critical Service Level Failure in such
Critical Service Level as set forth in Appendix A.
"SERVICE LEVEL EFFECTIVE DATE" means the date from which a particular Critical
Service Level will be measured and reported, as designated in SECTION [1.2]
above in the case of new Critical Service Levels.
"SERVICE SYSTEMS" has the meaning set out in EXHIBIT B.
"TIME TO OWN" means the time between the reporting of the Incident and the time
HP-OMS Personnel must start to provide Service in response to such Incident.
"TIME TO RESOLVE" means the period between the time that HP-OMS must begin to
resolve an Incident and the time that such Incident must be completely resolved
(including correcting the root cause of the Incident) or a Workaround is found,
provided that where a Workaround is implemented, the time that such Incident
must be resolved shall be extended by a one-time extension of five (5) working
days, or provide a workaround that the Customer agreed to consider as a
solution.
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"TOTAL AVERAGE SUCCESS RATE" means the Sum of MUO Time to Resolve Success Rate
+ Critical Time to Resolve Success Rate (all in the same applicable month),
divided by two (2).
"WORKAROUND" means a fix to an Incident, such that after the fix is implemented
the fault, error or problem has been eliminated (from a user's perspective),
but the root cause of the Incident remains. The incident is not marked as
closed until the root cause is resolved.
1.5 CRITICAL SERVICE LEVEL FAILURES
A "CRITICAL SERVICE LEVEL FAILURE" will be deemed to occur whenever HP-OMS'
level of performance for a particular Critical Service Level fails to meet the
Critical Service Level as specified so designated in APPENDIX A, SECTION 2
herein for that Service Level.
A "CRITICAL SERVICE LEVEL FAILURE RATE" will be calculated by dividing the sum
of the Critical Service Level Failures for the same Incident, occurring in the
same Measurement Period, by the sum total number of the same incidents
occurring during such Measurement Period for the specific Critical Service
Level.
1.6 SERVICE LEVEL CREDITS
In the event of a Critical Service Level Failure, HP-OMS shall provide Customer
credits as defined below:
A. Appendix A sets forth the information required to calculate the credits
that HP-OMS shall pay to Customer (or apply against Monthly Quarterly
Target Charges) in the event of a Critical Service Level Failure
("Service Level Credit"). For each Critical Service Level Failure,
HP-OMS shall pay to Customer, subject to SECTION [1.7] (ADDITIONS,
MODIFICATIONS AND DELETIONS OF CRITICAL SERVICE LEVELS) BELOW, a Service
Level Credit that will be computed in accordance with the following
formula:
Service Level Credit = A x B x C
Where:
A = The Service Level Credit Allocation Percentage as specified in
APPENDIX A for the Critical Service Level as to which the Critical
Service Level Failure occurred.
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B = the At Risk Amount.
C = CRITICAL SERVICE LEVEL FAILURE RATE.
For example, assume that during the one month Measurement Period HP-OMS
fails to meet the Minimum Service Level with respect to a Critical
Service Level for the same Incident (as set forth in Appendix A)
twenty-two (22) out of one hundred (100) such Incidents. Also, assume
that HP-OMS' Monthly Target Charges for the month in which the Critical
Service Level Failure occurred were $400,000, the At Risk Amount is 8%
of the Monthly Target Charges, and that the Service Level Credit
Allocation Percentage for such Critical Service Level Failure (as would
also be set forth on Appendix A) is 8% and that. The Service Level
Credit due to Customer for such Critical Service Level Failure would be
computed as follows:
A = 8% (the assumed Service Level Credit
Allocation Percentage),
multiplied by $400,000
B = $32,000 (the At-Risk Amount).
multiplied by
C = 22/100=0.22
= $7,040 (the amount of the Service Level Credit)
B. If more than one Critical Service Level Failure has occurred in a single
month, the sum of the corresponding Service Level Credits shall be
credited to Customer.
C. If the accumulated amount of a Service Level Credit which was calculated
for a Measurement Period is less then one (1%) percent of the At Risk
Amount, HP-OMS will not credit the Customer for any Service Level Credit
for such Measurement Period.
D. In no event shall the aggregate amount of Service Level Credits credited
to Customer with respect to all Critical Service Level Failures
occurring in a single month exceed, in total, the At Risk Amount.
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E. Customer and/or HP-OMS may initiate Commercial Change Management Request
if either party wishes to make changes to the Critical Service Levels,
Service Level Credit Allocation Percentages for any Critical Service
Level specified in Appendix A to Exhibit C, such change shall be deemed
a Commercial Change (as defined in EXHIBIT B, SECTION 8.2, TABLE 8
(CHANGE CATEGORIES), provided the Change has a major commercial effect
on the Agreement and/or has a major effect on the business processes of
either party and affects more than one (1) Customer Site. In such case,
the Change Management Process set out in Exhibit B for Commercial
Changes (the "Commercial Change Management Process") shall apply by
sending written notice to HP-OMS at least thirty (30) days prior to the
date that such new percentages are to be effective. Such change request
notices shall include changes necessary to accommodate the addition of
new Critical Service Levels made pursuant to SECTION [1.7] (ADDITIONS,
MODIFICATIONS AND DELETIONS OF CRITICAL SERVICE LEVELS) below. In no
event may the total Service Level Credit Allocation Percentages for all
Critical Service Levels exceed [**] percent ([**]%).
F. By the fifteenth (15) day of each quarter, HP-OMS shall notify Customer
in writing of any Critical Service Level Failures in the preceding three
(3) months and any Service Level Credits associated with such Critical
Service Level Failures.
G. [**] ([**]%) percents of the total amount of Service Level Credits that
HP-OMS is obligated to pay to Customer with respect to Critical Service
Level Failures occurring each month, shall be reflected on the quarterly
invoices that contain charges for the quarter following the month during
which the Critical Service Level Failure(s) giving rise to such
credit(s) occurred (e.g., the amount of Service Level Credits payable
with respect to Critical Service Level Failures occurring in July,
August and Septembershall be set forth in the quarterly invoice for the
Target Price due for September, October and November (issued in
October)). [**] ([**]%) percents of the total amount of Service Level
Credits that HP-OMS is obligated to pay to Customer, shall be credited
to the Customer's Bank of Working Hours according to the rates detailed
in Exhibit E Section 3.2. Such hours can also be used for projects with
up to [**] ([**]) working hours.
H. HP-OMS acknowledges and agrees that the Service Level Credits shall not
be deemed or construed to be liquidated damages or a sole and exclusive
remedy or in derogation of any other rights and remedies Customer has
hereunder or under the Agreement in accordance with SECTION [4.2(B)]
(SERVICE LEVEL CREDITS) of the Agreement.
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I. There will be no double credit for the same event.
1.7 ADDITIONS, MODIFICATIONS AND DELETIONS OF CRITICAL SERVICE LEVELS:
Customer may add, modify or delete Service Levels or Critical Service Levels as
follows:
A. ADDITIONS. Customer and /Or Hp-oms may add Critical Service Levels in
accordance with this Section [1.7] (ADDITIONS, MODIFICATIONS AND
DELETIONS OF CRITICAL SERVICE LEVELS) and SECTION 1.6 (E) above using
the Commercial Change Management Process [As Detailed in EXHIBIT B
SECTION 8]. Critical Service Level Commitments Associated with added
Service Level or Critical Service Levels Will be Computed as Follows:
(1) Where at least six (6) consecutive months of HP-OMS provided
service measurements exist for a particular Service, the Parties agree
that the highest and lowest monthly service measurements for the six (6)
month Measurement Period shall be excluded and that the Critical Service
Level shall then be defined as the average of the remaining four (4)
monthly service measurements, or
(2) Where no measurements exist for a particular Service, the Parties
shall in good faith attempt to agree during a thirty (30) day period on
a Critical Service Level commitment using software industry standard
measures or third-party HP-OMS advisory services (e.g., Gartner Group,
Meta Group, etc.), or
(3) Where no measurements exist for a particular Service, and the
Parties fail to agree on a Critical Service Level commitment using
industry standard measures as described in Section [1.7(a)(2)] above,
the Parties shall do the following:
(i) HP-OMS shall begin providing monthly measurements within
thirty(30)days after HP-OMS' receipt of Customer's written request
and subject to agreement on such measurements in accordance with
the Commercial Change Management Process.
(ii) After six (6) or more actual service level attainments have
been measured (or should have been measured pursuant to Section
[1.7(a)(3)(i)] above, Customer may at any time in writing request
that Section [1.7(a)(1)] above be used to establish the Critical
Service Level commitments.
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B. Deletions. The parties may delete Critical Service Levels using the
Commercial Change Process by sending written notice to HP-OMS at least
thirty (30) days prior to the date that such deletions to Critical
Service Levels are to be effective. Customer shall, in the case of
deletions, modify the Service Level Credit Allocation Percentages for
the remaining Critical Service Levels such that the total of the Service
Level Credit Allocation Percentages for all remaining Critical Service
Levels equals [**]percent ([**]%).
C. MODIFICATIONS. The parties may modify the Service Level Credit
Allocation Percentages for Critical Service Levels. Customer also may
remove existing and add new Critical Service Levels. In both cases the
parties will use the Commercial Change Management Process, subject to
Section 1.7(d) below. Customer shall notify HP-OMS in writing of such
changes at least thirty (30) days prior to the date such modifications
to the Critical Service Levels are to be effective in order to initiate
a Change Management process. Customer shall, in the case of
modifications, modify the Service Level Credit Allocation Percentages
for the remaining Critical Service Levels such that the total of the
Service Level Credit Allocation Percentages for all Critical Service
Levels equals [**]percent ([**]%).
D. PERMITTED CHANGES TO. Notwithstanding anything to the contrary, Customer
and/ or HP-OMS may make changes in the Service Level Credit Allocation
Percentage(s) for one (1) or more Incidents, set out in Exhibit C,
Appendix A, Table 1, without being subject to the Commercial Change
Management Process, by giving HP-OMS at least thirty (30) days prior
written notice, provided that (i) there is no change either to the Time
to Own or Time to Resolve parameters per Incident; and (ii) the total of
the Service Level Credit Allocation Percentages for all Critical Service
Levels remains equals to [**]percent ([**]%).
E. NOTICE REQUIREMENT. Customer will send written notice to HP-OMS at least
thirty (30) days prior to the date that such additions, deletions or
modifications to Critical Service Levels are to be effective or for
which agreement or measurement should be undertaken or initiated
pursuant to Section [1.7(a)] above.
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1.8 TECHNOLOGY REFRESH PROGRAM
A. In the event that HP-OMS fails to comply with the Technology Refresh
Program by upgrading or replacing the Refreshed Assets in accordance
with Appendix A, Section 2.11 (Technology Refresh Program) on or before
the Maximum Asset Age (defined in APPENDIX A, SECTION 2.11), such
failure shall be deemed a Critical Service Level Failure and HP-OMS
shall provide Customer credits as defined below:
In the event of a Critical Service Level Failure in connection with the
Technology Refresh Program which continues for a period in excess of
sixty (60) calendar days, HP-OMS shall pay to Customer (or apply against
Monthly Target Charges) five percent (5%) per month of the fair market
value of the asset that should have been replaced or upgraded.
B. In the event HP-OMS fails to purchase the relevant Refreshed Assets in
accordance with the Technology Refresh Program by more than one hundred
and eighty (180) calendar days, such delay shall be deemed to be a
material breach of the Agreement.
1.9 TIMES
Unless otherwise set forth herein, all references in this Exhibit C to times
shall refer to the time at the applicable Customer Site.
1.10 EXCEPTIONS
HP-OMS will be relieved of responsibility for Critical Service Level(s) and
associated Service Level Credits in accordance with the Agreement (including
situations where responsibility has been suspended) or pursuant to the mutual
agreement of the Parties and/or to the extent HP-OMS' failure to meet the
Critical Service Level(s) is due to:
(a) Problems resulting from components (other than the Customer's IT
Environment) for which HP-OMS is not operationally responsible under the
Agreement; or
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(b) Circumstances that excuse performance in connection with a Force
Majeure Event as specified in Section [21.6] (Force Majeure) of the
Agreement.
(c) Cases where 3rd party contracts that are under Customer's
responsibility, are needed to resolve incidents and for which the
response time and/or resolve time doesn't comply with the Service Level
as detailed in EXHIBIT C APPENDIX A.
(d) Cases where Customer's Personnel or Customer's 3rd party employees,
other then HP-OMS Personnel, failed to comply with the written
procedures and guidelines agreed (in writing) between HP-OMS and the
Customer.
(e) Customer's faulty written instructions to HP-OMS to install or
configure (i) Customer's proprietary software; or (ii) third party
software or hardware, provided HP-OMS advises Customer in writing that
such instructions are contrary to the third party licensor's/
manufacturer's associated documentation. Fault guidelines or fault
instructions from the Customer or Customer's representative
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2 PRIORITIES
2.1 GENERAL
The Incident Priority will be determined by the following factors, as set out
in Tables 1, 2 and 3 below:
o The number of users affected by the Incident
o The number of Customer Sites affected by the Incident
o The severity of the problem
o The business risk
Priorities are defined as:
TABLE 1 - PRIORITIES DEFINITIONS & TIME TO OWN DEFINITIONS
NO PRIORITY PRIORITY DESCRIPTION [**]
----- ----------- ------------------------------------------------------ ----
1 MUO - Multi Incident in which all users at a Customer Site or more [**]
User Outage than [**] users in one or more Customer Sites are
affected and there is a high business risk involved, as
determined by Customer
2 Critical Incident in which all users at a Customer Site or more [**]
than [**] users in one or more Customer Sites are
affected and there is a medium business risk involved,
as determined by Customer
3 Regular Incident in which one or more users in one or more [**]
Customer Sites are affected and there is a low business
risk involved, as determined by Customer
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NO PRIORITY PRIORITY DESCRIPTION [**]
----- ----------- ----------------------------------------------------- ---------
by Customer
4 Low Incident in which one or more users at one or more [**]
Customer Sites are affected and there is no business
risk involved, as determined by Customer
The Priority will be categorized by the type of the Customer Site, as detailed
in Tables 2 and 3 below:
TABLE 2: PRINCIPALS PRINCIPLES OF PRIORITY ASSIGNMENTS IN CLASS1 SITES
MORE THAN
ALL ONE ONE
IMPACT ON CUSTOMER CUSTOMER CUSTOMER MORE THAN
SERVICE SITES SITE SITE ONE USER 1 USER
-------------------------------------------------------------------------------
UNABLE TO MUO MUO MUO Critical Critical
WORK
SEVER
IMPACT
WITH WORK MUO MUO Critical Regular Regular
AROUND
AVAILABLE
LOW IMPACT Critical Regular Low Low Low
TABLE 3: PRINCIPLES PRINCIPALS OF PRIORITY ASSIGNMENTS IN CLASS 2 SITES
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MORE THAN
ALL ONE ONE
IMPACT ON CUSTOMER CUSTOMER CUSTOMER MORE THAN
SERVICE SITES SITE SITE ONE USER 1 USER
-------------------------------------------------------------------------------
UNABLE TO MUO MUO Critical Regular Regular
WORK
SEVERE
IMPACT
WITH WORK MUO MUO Regular Regular Low
AROUND
AVAILABLE
LOW IMPACT Critical Regular Low Low Low
2.2 PRIORITY REPORTING
When reporting an Incident, the Ticketing System will automatically ask the
user several questions in order to set the Priority automatically by
pre-defined rules that will be mutually agreed by HP- OMS and Customer in
accordance with Tables 1,2, and 3 in Exhibit C and Tables 1 and 11 in Exhibit
C, Appendix A the user shall also report the Priority. The information system
Priority setting can be changed by the Commercial Change Management Process.
Notwithstanding the foregoing, in special cases, such as the occurrence of an
Incident report prior to a user's business trip or an important meeting, the
user shall be entitled to contact the MCC to change the Priority of an Incident
and HP-OMS that will change the Priority of the such Incident and respond in
accordance with the Service Levels.
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3 SERVICE WINDOW
3.1 GENERAL SERVICE WINDOW
HP-OMS will provide a general Service Window, which will apply to all
Incidents of all Priorities except MUO Priority Incidents. The Service Window
will be provided at the following Customer Site local times (local holidays
will be considered weekend days).
GENERAL SERVICE WINDOWS FOR ALL CUSTOMER SITES WORLDWIDE EXCEPT ISRAEL WILL BE:
o Monday - Friday 8:00AM-5:00PM (Local time) or 9:00AM-6:00PM (Local time) -
Depending on office working hours
GENERAL SERVICE WINDOWS FOR ISRAEL WILL BE:
o Sunday - Thursday 8:00AM-7:00PM
(Collectively, the "GENERAL SERVICE WINDOW").
3.2 MCC SERVICE WINDOW
MCC Service Window will be 24 hours a day, 6 days a week, world wide for all
Customer Sites.
From Saturday 6:00am (Israel time) until Sunday morning 5:59am (Israel time),
MCC will operate with an On Call person who will receive the calls and will
provide the services with one (1) hour response time.
The payment mechanism for the On Call service will be defined in Exhibit E
section 3.3.
The On Call person will have, at least, the following skill set:
o Windows System Administration
o Security connectivity systems
o Exchange System Administrator
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PHONE SUPPORT FOR TRAVELING END-USERS :
While traveling, end-users will receive phone support from the MCC according to
the support process described in EXHIBIT B, SECTION 5.8 - REMOTE AND TRAVELING
END-uSERS.
In the event an end-user is directed to a beeper or voice mail, the MCC will
contact the end-user by telephone within thirty (30) minutes from the moment a
message was left.
(All of the above, collectively, the "MCC SERVICE WINDOW")
3.3 DOWNTIME
3.3.1 SCHEDULED/PLANNED DOWNTIME
Customer and HP-OMS will agree on defined maintenance windows to allow HP-OMS
to perform regular preventive maintenance, proactive maintenance for system
administration, and tasks to improve service performance. Downtimes will be
scheduled for after-work hours of the relevant Customer Site and will be
planned not to occur during the last three (3) weeks before the Version Release
Period or the End of Quarter (as such terms are defined in EXHIBIT B, SECTION 4
(AVAILABILITY MANAGEMENT)).
Customer will not be charged by HP-OMS for Services provided outside of the
General Service Window for on going maintenance and system administration work.
In addition to the General Service Window, HP-OMS and Customer will mutually
agree on 4 major down times a year, which will be used to introduce major
network/service changes.
All downtime outages must be pre-approved by the Customer. HP-OMS and Customer
will send advance notification to the end-users who will be impacted by the
down time. The advanced notification will allow them the time to ask for a
postponement, if needed.
HP-OMS shall not charge Customer for scheduled and/or planned downtime, even if
it occurs outside of the General Service Window.
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3.3.2 EMERGENCY DOWNTIME
HP-OMS will define an Emergency Planned Downtime (EPD) procedure during the
Transition and Stabilization Phases. This process will allow for immediate down
time resulting from (and designed to prevent) anticipated system failure, which
potentially could result in even longer system unavailability.
Emergency Downtime must be pre-approved by the Customer, which approval shall
be reviewed by the Customer on an emergency basis.
3.4 ON-CALL SERVICE OUTSIDE THE GENERAL SERVICE WINDOW
HP-OMS shall provide Services (on an on-call basis) outside the General
Service Window, if requested by Customer's authorized personnel, as set out in
EXHIBIT B, APPENDIX A.
o During defined periods of time (i.e. End of Quarter Period, Version
Release Period, etc.) MCC will be a point of contact for urgent end-user
issues at Customer Sites worldwide at no additional charge to Customer.
o In the event on site help is outside of the General Service Window in
Israel, HP-OMS will provide an on-call support person able to arrive on
site (at the Customer Site) over weekends within 4 hours' notice at the
Israeli Site. If on site help is needed, Customer will be charged, in
addition, for the actual working time on site on Fridays at the Bank of
Work Hours rates as specified in Exhibit E Section 3.2 (BANK OF HOURS)
and on Saturdays at the MCC On Call Services rates according to Exhibit
E Section 3.3 (MCC ON CALL SERVICES).
o In the event on site help is necessary outside the General Service
Window in Customers Sites out of Israel, HP-OMS will provide an on-call
support person able to arrive on site within four (4) hours notice at
Customer sites outside Israel. Customer will be charged for such arrival
time at the rate of 1 Bank of Work Hour for every 4 on-call hours. If on
site help is needed, Customer will be charged, in addition, for the
actual working time on site (including traveling time) at the Bank of
Work Hours rates as specified in Exhibit E Section 3.2 (BANK OF HOURS).
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o The Customer must inform HP-OMS two (2) business days in advance of
the need to have on-call person(s) available, as described above with
the ability to cancel the request twenty-four (24) hours in advance.
3.5 SERVICE WINDOW EXCEPTIONS
Remote traveling end-users (also defined as Class 3 Customer Site in Exhibit B)
will be given 1st tier support by phone and will receive service per call on a
24/7 basis.
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4 RESOLUTION CONTINUITY
The resolution process for MUO or Critical Priority Incidents will not stop
even if it extends the General Service Window or MCC Service Window. The
resolution process will continue within and outside of the applicable Service
Window until full resolution or workaround has been implemented.
The resolution process of Regular and Low Priorities will be performed during
the General Service Window. If an Incident is not resolved during the General
Service Window, the resolution process will stop and continue during the next
General Service Window.
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5 BASELINE INDEPENDENT SURVEYS
A. Within fifteen (15) days after the Effective Date (of the Agreement),
the Parties shall mutually agree on the identity of an independent third
party that will conduct a baseline customer satisfaction survey of the
Services to be provided under this Agreement in accordance with the
survey protocols and procedures specified in EXHIBIT D (TRANSITION AND
STABILIZATION) (the "BASELINE SURVEY"). At least thirty (30) days before
the Commencement Date, such independent third party shall have conducted
the survey and shall submit the results to Customer for its approval.
Such Baseline Survey shall thereafter become the baseline for measuring
performance improvements and conducting other satisfaction surveys
hereunder. During the Term and as part of the Services, HP-OMS shall
engage independent third parties (such third parties to be approved in
advance by Customer) to conduct satisfaction surveys at least on a
semi-annual (every six months) basis, beginning on one year after
Commencement Date (2 months after the end of Transition and
Stabilization phase) the date of delivery of the Baseline Survey. The
survey shall at a minimum cover at least the following classes of users:
(i) end users of the Services ; and (ii) senior management of end users
. The content, scope, and method of the survey shall be consistent with
the Baseline Survey.
B. Customer Conducted Surveys. In addition to the satisfaction surveys to
be conducted by an independent third party pursuant to Section 5 herein,
Customer may survey end user satisfaction with HP-OMS' performance in
connection with and as part of broader end user satisfaction surveys
periodically conducted by Customer. At Customer's request, HP-OMS shall
cooperate and assist Customer with the formulation of the survey
questions, protocols and procedures and the execution and review of such
surveys.
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Survey Follow-up. If the results of any satisfaction survey conducted
pursuant to Sections 5 herein indicate that the level of satisfaction
with HP-OMS' performance is less than the level of the Baseline Survey,
HP-OMS shall promptly: (i) analyze and report on the root cause of the
management or end user dissatisfaction; (ii) develop an action plan to
address and improve the level of satisfaction; (iii) present such plan
to Customer for its review, comment and approval, and (iv) take action
in accordance with the approved plan and as necessary to improve the
level of satisfaction. Customer and HP-OMS shall establish a schedule
for completion of a Root Cause Analysis and the preparation and approval
of the action plan which shall be reasonable and consistent with the
severity and materiality of the problem; provided, that the time for
completion of such tasks shall not exceed thirty (30) days from the date
such user survey results are finalized and reported. HP-OMS' action plan
developed hereunder shall specify the specific measures to be taken by
HP-OMS and the dates by which each such action shall be completed.
Following implementation of such action plan, HP- OMS will conduct
follow-up surveys with the affected Customer users and management to
confirm that the cause of any dissatisfaction has been addressed and
that the level of satisfaction has improved.
The implementation of said plan shall be subject to Change Management
Process as follows:
o Changes which require modifications in order to enable HP-OMS to
meet its undertakings as per the agreed Service Level - shall be
borne and paid by HP-OMS. Changes which require modifications to
the current in scope services will be bare by HP-OMS
o Changes which require additional modifications which change the
agreed Service Level - shall be borne and paid by Customer. Changes
which require additional out of scope equipment will be bare by
Customer
C. Customer shall consider the results of the surveys in evaluating HP-OMS'
qualifications to be awarded additional business.
D. Consistent inability to meet satisfaction survey standards will be
deemed a material breach of this Agreement. HP-OMS agrees that
increasing measured customer satisfaction shall be a key performance
incentive for compensation for Key Personnel assigned to Customer's
account.
E. Costs and expenses of independent third parties which will perform the
above Surveys will be paid as follows: (i) Baseline Survey costs and
expenses will be born by HP-OMS (ii) Future Surveys costs and expenses
will be split on a fifty fifty basis between HP-OMS and Customer
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Appendix A to Exhibit C
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
1 CRITICAL SERVICE LEVELS AND SERVICE LEVEL CREDITS 3
2 INFRASTRUCTURE SLA MEASUREMENTS 7
2.1 GENERAL......................................................................... 7
2.2 MESSAGING DELIVERY SLA.......................................................... 7
2.3 LAN AVAILABILITY................................................................ 8
2.4 WAN AVAILABILITY................................................................ 8
2.5 GENERAL NETWORK PERFORMANCE SLA................................................. 9
2.6 SERVER UP TIME.................................................................. 9
2.7 AVAILABILITY CALCULATION........................................................ 10
2.8 BACKUP AND RESTORE SLA.......................................................... 10
2.9 PROCUREMENT AND IT ADMINISTRATIVE SLA........................................... 11
2.10 HP-OMS OVERALL SLA COMMITMENT FOR MUO AND CRITICAL PRIORITY INCIDENTS........... 12
2.11 TECHNOLOGY REFRESH PROGRAM SLA.................................................. 12
2.12 NEW EMPLOYEES HARDWARE AND SOFTWARE............................................. 16
3 REGULAR AND LOW PRIORITY SERVICE LEVELS 18
3.1 HP-OMS OVERALL SLA COMMITMENT FOR REGULAR & LOW PRIORITY INCIDENTS.............. 18
3.2 "MAXIMUM TIME TO RESOLVE" SERVICE LEVEL......................................... 18
3.3 SERVICE LEVELS FOR REGULAR AND LOW PRIORITY INCIDENTS........................... 19
APPENDIX B: FORM OF CRITICAL SERVICE LEVEL REPORTS........................................ 24
APPENDIX C: FORM OF SOFTWARE TO BE PROVIDED TO NEW CUSTOMER'S EMPLOYEES................... 26
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1 CRITICAL SERVICE LEVELS AND SERVICE LEVEL CREDITS
For each Service, HP-OMS shall comply with the Time to Own and Time to Resolve
parameters for each Critical Service Level set out in Table 1, and subject to
the Service Level Credits in the case of a Critical Service Level Failure, as
follows:
TABLE 1: CRITICAL SERVICE LEVELS
TIME TO TIME TO
TIME TO RESOLVE RESOLVE SERVICE LEVEL
OWN AN CLASS 1 CLASS 2 CREDIT
INCIDENT SITES (IN SITES (IN ALLOCATION
NO. PRIORITY TYPE INCIDENT DESCRIPTION (IN HOURS) HOURS) HOURS) PERCENTAGE
---- ---------- ----------------- ------------------------------ ---------- --------- --------- -------------
1 MUO Hardware [**] [**] [**] [**] [**]
2 MUO Hardware Printer hardware failure and [**] [**] [**] [**]
all end users cannot print to
alternative printer
Failure to comply with Server
3 MUO Servers Up Time according to SECTION [**]
2.6
Failure to comply with
Backup and Restore SLA
4 MUO Servers according to SECTION 2.8 [**]
TABLE 6
5 MUO Servers [**] [**] [**] [**] [**]
6 MUO Servers [**] [**] [**] [**] [**]
7 Critical Servers [**] [**] [**] [**] [**]
8 MUO Servers [**] [**] [**] [**] [**]
9 MUO Servers [**] [**] [**] [**] [**]
Exchange delivery time does
Mail not comply with Messaging
10 MUO Delivery SLA Table 2 and [**]
Table 3, as set out in SECTION
2.2 BELOW
11 MUO Mail [**] [**] [**] [**] [**]
12 MUO Mail [**] [**] [**] [**] [**]
13 MUO Network [**] [**]
14 MUO Network [**] [**]
15 MUO Network [**] [**] [**] [**] [**]
16 MUO Network [**] [**] [**] [**] [**]
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TIME TO TIME TO
TIME TO RESOLVE RESOLVE SERVICE LEVEL
OWN AN CLASS 1 CLASS 2 CREDIT
INCIDENT SITES (IN SITES (IN ALLOCATION
NO. PRIORITY TYPE INCIDENT DESCRIPTION (IN HOURS) HOURS) HOURS) PERCENTAGE
---- ---------- ----------------- ------------------------------ ---------- --------- --------- -------------
17 MUO Network [**] [**] [**] [**] [**]
18 MUO Network [**] [**] [**] [**] [**]
19 MUO Storage [**] [**] [**] [**] [**]
20 MUO Storage [**] [**] [**] [**] [**]
21 MUO Antivirus [**] [**] [**] [**] [**]
22 MUO Firewall [**] [**] [**] [**] [**]
23 MUO Firewall [**] [**] [**] [**] [**]
24 MUO Firewall [**] [**] [**] [**] [**]
Content
25 MUO Protection [**] [**] [**] [**] [**]
(e-Safe)
26 MUO Business [**] [**] [**] [**] [**]
Application
27 MUO Business [**] [**] [**] [**] [**]
Application
28 Critical XXX [**] [**] [**] [**] [**]
29 Critical XXX [**] [**] [**] [**] [**]
30 Critical XXX [**] [**] [**] [**] [**]
31 Critical XXX [**] [**] [**] [**] [**]
32 Critical XXX [**] [**] [**] [**] [**]
33 Critical XXX [**] [**] [**] [**] [**]
34 Critical Hardware [**] [**] [**] [**] [**]
35 Critical Hardware [**] [**] [**] [**] [**]
36 Critical Hardware [**] [**] [**] [**] [**]
37 Critical Servers [**] [**] [**] [**] [**]
38 Critical Servers [**] [**] [**] [**] [**]
39 Critical Servers [**] [**] [**] [**] [**]
40 Critical Servers [**] [**] [**] [**] [**]
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TIME TO TIME TO
TIME TO RESOLVE RESOLVE SERVICE LEVEL
OWN AN CLASS 1 CLASS 2 CREDIT
INCIDENT SITES (IN SITES (IN ALLOCATION
NO. PRIORITY TYPE INCIDENT DESCRIPTION (IN HOURS) HOURS) HOURS) PERCENTAGE
---- ---------- ----------------- ------------------------------ ---------- --------- --------- -------------
41 Critical Servers [**] [**] [**] [**] [**]
42 Critical Mail [**] [**] [**] [**] [**]
43 Critical Mail [**] [**] [**] [**] [**]
44 Critical Network [**] [**] [**] [**] [**]
45 Critical Network [**] [**] [**] [**] [**]
46 Critical Network [**] [**] [**] [**] [**]
47 Critical Unix Support & [**] [**] [**] [**] [**]
Administration
48 Critical Unix Support & [**] [**] [**] [**] [**]
Administration
49 Critical Unix Support & [**] [**] [**] [**] [**]
Administration
50 Critical Storage [**] [**] [**] [**] [**]
51 Critical Storage [**] [**] [**] [**] [**]
52 Critical Business [**] [**] [**] [**] [**]
Application
53 Critical Business [**] [**] [**] [**] [**]
Application
54 N/A Procurement and [**] [**]
IT administration
55 Regular Overall SLA [**] [**]
Commitment
56 Regular Overall SLA [**] [**]
Commitment
57 Regular Overall SLA [**] [**]
Commitment
58 Low Overall SLA [**] [**]
Commitment
59 Low Overall SLA [**] [**]
Commitment
60 Low Overall SLA [**] [**]
Commitment
The Time to Own for Critical Priority Incidents, which are related to one user
will be measured within the General Service Window.
The Time to Own for MUO and Critical Priority Incidents, which are related to
more then one user will be measured immediately when the incident is open within
a twenty-four (24) hour period.
The Time to Resolve for MUO and Critical Priority Incidents is a number of hours
within a twenty-four (24) hour over six (6) days (exclude Saturdays) period.
Such resolution efforts will be continuous, even if they extend the General
Service Window or MCC Service Window. ..
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Whether or not Service Level Credits apply, the resolution process for MUO and
Critical Priority Incidents will continue until full resolution or workaround,
agreed by the Tecnomatix Key Personnel, has been implemented.
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2 INFRASTRUCTURE SLA MEASUREMENTS
2.1 GENERAL
The metric and SLA figures in this Section (2) represent both Critical Services
Levels and other Service Levels. HP-OMS shall comply with all Service Levels,
but only Critical Service Level Failures may trigger Service Level Credits.
SECTION 1, TABLE 1 contains all of the Critical Service Levels, unless modified
in accordance with Exhibit C (although not all of the Critical Service Levels
are referenced in this Section 2). It is agreed that HP-OMS and Customer will
review all Service Levels six (6) months following the end of the Transition and
Stabilization Phases and thereafter every six (6) months throughout the Term.
This review process will allow Customer and HP-OMS to mutually adjust the
Service Levels according to performance reports and mutual analysis.
2.2 MESSAGING DELIVERY SLA
The Message Delivery time is measured by sending test messages once per 6 hours
from all mail servers to all mail servers.
Messages less than [**] shall be delivered anywhere in the world in [**]in more
than [**]% of the cases, and messages larger then [**] shall be delivered
anywhere in the world according to the table below in more than [**]% of the
cases. The 1-month average will be reviewed once every 6 months.
TABLE 2: MAIL METRIC INSIDE CUSTOMER'S NETWORK - TIME FOR A 100K MAIL MESSAGE TO
ARRIVE TO ITS DESTINATION FROM EACH REGION:
Site Europe USA Israel Asia-Pacific
-------------- ---------- --------- ---------- ----------------
1 Europe 7 min 7 min 7 min 7 min
2 USA 7 min 7 min 7min 7 min
3 Israel 7 min 7 min 1 min 7 min
4 Asia-Pacific 7 min 7 min 7 min 7 min
TABLE 3: MAIL METRIC INSIDE CUSTOMER'S NETWORK - TIME FOR A 1MB MAIL MESSAGE TO
ARRIVE TO ITS DESTINATION FROM EACH REGION:
Site Europe USA Israel Asia-Pacific
-------------- ---------- ---------- ---------- ---------------
1 Europe 20 min 40 min 20 min 50 min
2 USA 40 min 20 min 30 min 50 min
3 Israel 20 min 30 min 5 min 50 min
4 Asia-Pacific 50 min 50 min 50 min 40 min
o Address books are updated in all [**] of changes made.
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ASSUMPTIONS:
o The maximum size of a mail message is 5 Mb in order to guarantee consistent
service
o All Customer Sites are connected to Customer's WAN
2.3 LAN AVAILABILITY
HP-OMS will provide the Customer with LAN network related services as described
in EXHIBIT B SECTION 6.6 - LAN/ WAN MANAGEMENT.
HP-OMS responsibilities:
o Provide addresses and network configuration to network attached devices
o Network interconnection within a Customer Site
o Interface to WAN router and wall sockets in the Customer Site
The 1-month average On-time Delivery for LAN services figures are as follows
(see SECTION 2.7 BELOW (AVAILABILITY CALCULATION):
1. Monthly commitment in all Class1 Customer Sites: [**] %
2. Monthly commitment in all Class 2 Customer Sites: [**]%
2.4 WAN AVAILABILITY
HP-OMS will provide the Customer with WAN services in all Customer Sites
worldwide. As part of the Transition and Stabilization Phases, HP-OMS will
consolidate WAN network services to allow central monitoring and control over
all WAN resources and will be able to commit to WAN availability as shown below.
HP-OMS according to its sole discretion will be able to change the network
provider and/or the network topology. Such change must comply with the Service
Levels as detailed herein and with Customer security policy
HP-OMS responsibilities:
o Provide WAN communication to Customer sites world wide as described in
EXHIBIT B SECTION 6.6 - LAN/ WAN MANAGEMENT
o Responsible to ensure on going operating WAN dependent services (Internet,
Intranet, File Sharing, etc.)
o Maintain or improve network performance as it exists prior to commencement
date as the baseline for all future WAN services (WAN indicators will be
available from Customer's current network provider and by individual site
analysis performed mutually by HP-OMS and the Customer)
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The 1-month average On-time Delivery for WAN services figures are as follows
(see SECTION 2.7 BELOW (AVAILABILITY CALCULATION):
o Monthly commitment for WAN availability in all Customer Class 1 sites:
[**]%
o Monthly commitment for WAN availability in all Customer Class 2 sites:
[**]%
2.5 GENERAL NETWORK PERFORMANCE SLA
As agreed with the Customer, HP-OMS network performance SLA commitment to the
Customer will be as follows:
HP-OMS WILL PROVIDE NETWORK BANDWIDTH ACCORDING TO THE FOLLOWING FORMULA FOR
[**]:
o Class 1 sites [**] bandwidth = Number of [**]
o Class 2 sites [**] bandwidth = Number of [**]
HP-OMS WILL PROVIDE NETWORK BANDWIDTH ACCORDING TO THE FOLLOWING FORMULA FOR
[**]:
o Class 1 sites bandwidth = Number of [**]
o Class 2 sites bandwidth = Number of [**]
HP-OMS WILL ENSURE THAT THE FOLLOWING USAGE INDICATORS:
o Mail (SMTP) - As detailed on SECTION 2.2
o Clear Case / Source Safe
o Clarify Report
o SUN
o FTP
2.6 SERVER UP TIME
HP-OMS will provide the Customer with server services in all branches worldwide.
As part of the Transition and Stabilization Phases, HP-OMS will consolidate,
upgrade and install a monitoring agent on all Customer servers to allow central
monitoring and control over all servers and will be able to commit to server up
time as shown below.
HP-OMS responsibilities:
o Provide support maintenance of all servers Customer wide
o Responsible to ensure on going operating Servers and dependent services
o Maintain Server and Server services at all Customer Sites
o Analysis of up time will be performed by HP-OMS and will be presented to
the Customer on a monthly basis
o Monthly commitment for server up time in all Class1 Customer Sites: [**]%
o Monthly commitment for server up time in all Class 2 Customer Sites: [**]%
9
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
2.7 AVAILABILITY CALCULATION
The availability calculation for the above sections is based on the availability
measurement and performed as follows:
AVAILABILITY=100- (TOTAL DOWNTIME-ECLUDED DOWNTIME) *100
---------------------------------------------
SUM(HOURS OF OPERATION PER CALULATION PERIOD)
TABLE 5: DEFINITION OF TERMS
DOWNTIME means the time during which a specific service is not
available
EXCLUDED DOWNTIME means Downtime that is approved by the Customer in
writing in advance and/or as agreed in EXHIBIT C
SECTION 3.3 (DOWNTIME)
HOURS OF OPERATION PER means the number of hours in the Measurement Period
CALCULATION PERIOD
2.8 BACKUP AND RESTORE SLA
HP-OMS has responsibility for the following:
Creating backup copies of all data residing in all servers within the IT
Environment and routine backup procedures, as well as the monitoring of the
success and correctness of the backup procedures to ensure a quick recovery into
production for the servers and the individual files.
BACKUP:
Backups must be performed by HP-OMS according to Customer and HP-OMS Backup
Policy worldwide, which will be mutually defined by the Parties during the
Transition and Stabilization Phases. There are several types of Backup Sets:
daily, weekly, monthly, yearly and permanent. Type of Backup Set, Backup
Frequency, Restorability Rate, Safekeeping Times, Maximum Time to Restore are
presented in the table below. Backup of the data will be performed once every
working day, during the night (Local Customer Site time).
"RESTORABILITY RATE" means the rate of successful restore of an entity such as a
file, directory or database can be restored from the backup media in the agreed
time.
A copy from the full backup is performed at least every month and this copy is
stored in locked fireproof safes, in a remote location, which is the Customer's
responsibility.
10
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
TABLE 6: BACKUP AND RESTORE SLA
MAXIMUM TIME TO MAXIMUM TIME TO
START RESTORE - START RESTORE -
TYPE OF BACKUP SET BACKUP FREQUENCY RESTORABILITY RATE SAFEKEEPING TIME CLASS 1 SITES CLASS 2 SITES
-------------------- ------------------ -------------------- ------------------ ------------------ ----------------
DAILY [**] [**] [**] [**] [**]
WEEKLY [**] [**] [**] [**] [**]
MONTHLY [**] [**] [**] [**] [**]
YEARLY [**] [**] [**] [**] [**]
ETERNITY [**] [**]
RESTORE:
The Safekeeping Time and Restoring Time depend on the Type of the Backup Set
according to the table above.
HP-OMS shall restore data or applications (e.g. Clarify) as they were at the
time of the backup. HP-OMS is responsible for the applications' ability to use
restored data.
EXCLUDED:
o HP-OMS will not guarantee backup data and restore quality of backup
performed prior to Commencement Date.
o Safekeeping remote location and tapes transition to that remote location is
the Customer's responsibility
2.9 PROCUREMENT AND IT ADMINISTRATIVE SLA
The following table describes the SLA for the procurement and IT administrative
tasks performed by HP-OMS.
TABLE 7: DETAILED PROCUREMENT AND IT ADMINISTRATIVE SLA
ITEM
NUMBER SERVICE SLA
------ --------------------------------------- --------------------------
1 Regular procurement request [**]
2 Urgent procurement request [**]
3 Procurement request which requires at [**]
least 3 price offers
4 Invoice Customer for the procured goods [**]
(Payment terms according to Exhibit E)
5 Software license status [**]
6 3rd party contract information [**]
7 Provide IT information for RFI/RFP Will be mutually agreed on
process a case by case basis
8 Asset information [**]
9 Delivery [**]
10 Pricing [**]
11
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
2.10 HP-OMS OVERALL SLA COMMITMENT FOR MUO AND CRITICAL PRIORITY INCIDENTS
For each Incident, the Time to Own and Time to Resolve will be inserted into the
Ticketing System. For each Incident entered into the Ticketing System, the Time
to Own and the Time to Resolve for Critical Service Levels (i.e. set out in
SECTION 1, TABLE 1) will be measured against the actual Time to Own and Time to
Resolve achieved by HP-OMS within the Measurement Period.
If HP-OMS does not comply with the Time to Own or the Time to Resolve Service
Levels with respect to a particular Incident, the ticket for such Incident shall
be deemed to be a failed ticket (whether or not HP-OMS eventually resolves the
Incident).
If HP-OMS complies with the Time to Own and the Time to Resolve Service Levels
with respect to a particular Incident, the ticket for such Incident shall be
deemed to be a successful ticket.
HP-OMS shall measure and report its success/fail rate to Customer for all
Service Levels for MUO and Critical Priority Incidents on a monthly basis.
Without limiting the Customers right to terminate the agreement for Material
Breach, if, for a consecutive three (3) month period, the Total Average Success
Rate constitutes a substantial deviation from MUO and Critical Time to Resolve
parameters of the Critical Service Levels, HP-OMS will be deemed to be in
material breach of the Agreement.
2.11 TECHNOLOGY REFRESH PROGRAM SLA
HP-OMS will provide the Customer with technology refresh of the HP-OMS Hardware
and HP-OMS Software.
At the beginning of each calendar quarter, HP-OMS and Customer will mutually
prepare a list of the prospective assets to be replaced in accordance with the
Customer preferences and Customer's IT environment needs. The hardware amounts
to be supplied by HP-OMS are detailed in Table 9 and Table 10 herein. The
hardware models that will be provided by HP-OMS are detailed in table 9 herein.
By the end of such quarter, all such assets must be replaced.
The hardware and software supplied by HP-OMS will be according to the local
standard of langue in use at the specific office (i.e. operating system and
keyboard).
All Servers and Laptops included within the Refreshed Assets, Add-On Assets and
New Customer Employee Assets must be maintained at a level equal to or better
than HP's "Carepack Service", e.g., on a 24X7 basis, with repairs within 4 hours
of the call for servers etc.
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TABLE 9: TECHNOLOGY REFRESH SLA
ITEM DESCRIPTION MAXIMUM ASSET AGE(2)
-------------------------- ------------------------------------------------- ---------------------------
Office desktop Computer desktop that can run the latest office [**](5)
environment applications [**]) Will be replaced with water
fall developers desktops
Developer desktop Computer desktop that can run [**]
[**]. The computer will have [**]
or similar [**] card and the
second best CPU available upon
time of purchase (like EvoD510 or
(3)Equivalent)
Office laptop Computer laptop that can run the latest office [**]
environment applications (like [**]
Sales Laptop Computer laptop that can run [**]. The laptop [**]
will have [**]or similar [**]support and the
second best CPU available for laptop upon time
of purchase (like [**]. Such hardware can be
provided as refurbish hardware with a minimum
of [**] years Carepaq service.
Unix Workstation Unix workstation which can run the latest [**]
operating system and development environment
applications as utilized by the Customer (like
[**]. Such hardware can be provided as
refurbish hardware with a minimum of
[**]Carepaq service.
Laser printers Department laser printer (like LaserJet 4600/ 4
4200/1300 or (3)Equivalent)
Ink-Jet printers Color ink printers for personal and department 4
usage (like HP DeskJet 6122/ink jet 3000 or
(3)Equivalent)
Peripheral equipment Configuration will be determined according to [**]
the [**]
Storage devices(4) Storage system category, which is Equivalent to [**]
the storage system used by the Customer with
minimal storage capacity that is [**]% greater
then currently in use.
Backup and Restore Systems Backup system which can backup Customer site 5
data without manual interference
Networking Equipment Latest available network equipment available 5
upon date of refresh with respect to equipment
category currently in usage by the Customer.
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ITEM DESCRIPTION MAXIMUM ASSET AGE(2)
-------------------------- ------------------------------------------------- ---------------------------
Microsoft Software Latest released software 3
product available from 3 Microsoft
upon the date of refresh.
HP-OMS Software except Latest released software product available from 3.5
Microsoft Software the software vendor upon the date of refresh.
Unix Server Configuration will be determined according to 5
Customer requirements with respect to average
hardware configuration of the last 12 months of
usage
Back Office Servers Computer server that can run latest Microsoft [**]
server's operating and applications utilized by
the Customer. The server
configuration will be according to
the number of end-users at each
site and will consist with second
best parts configuration currently
available in the market (like Based
on [**]
An estimation for the hardware Technology Refresh program as described in Table
9 above will be applied according to the estimated information detailed in Table
10 herein (Customer Hardware Age At Commencement Date) and on Customer's
end-users hardware needs as detailed in TABLE 11 herein (Customer's End-users
Hardware Allocation).
It is agreed between the parties that HP-OMS is allowed to use existing
equipment (e.g. Customer Hardware, New Employee Assets or Refreshed Assets) for
Technology Refresh purposes as long as the equipment age did not exceed its
Maximum Age as described above (e.g. HP-OMS will be able to use computer
equipment of retired employee for the Technology Refresh program as long as the
computer age did not exceed the Maximum Age criteria).
TABLE 10: ESTIMATION OF CUSTOMER HARDWARE AGE AT COMMENCEMENT DATE
LAPTOP COMPUTERS AGE PERCENTAGE
-------------------------------
AGE IN YEARS ISRAEL US EUROPE ASIA
---------------------- ---------- --------- ----------- --------
3 or more [**]% [**]% [**]% [**]%
2-3 [**]% [**]% [**]% [**]%
1-2 [**]% [**]% [**]% [**]%
1 or less [**]% [**]% [**]% [**]%
Total Percentage 100% 100% 100% 100%
14
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
DESKTOP COMPUTERS AGE PERCENTAGE
--------------------------------
AGE IN YEARS ISRAEL US EUROPE ASIA
------------------------ ---------- -------- ----------- --------
3 or more [**]% [**]% [**]% [**]%
2-3 [**]% [**]% [**]% [**]%
1-2 [**]% [**]% [**]% [**]%
1 or less [**]% [**]% [**]% [**]%
Total Percentage 100% 100% 100% 100%
For the avoidance of doubt, the maximum refreshed assets in the first 2 years
following Commencement Date will not exceed [**]% of the total equipment.
Equipment that has been refreshed by HP-OMS will be retired. HP-OMS will have
the right to use retired equipment (equipment which passed the Maximum Age) for
any purpose.
15
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CONFIDENTIAL TREATMENT FROM THE SEC
TABLE 11: CUSTOMER'S END-USERS HARDWARE ALLOCATION BY GROUP AND SUB-GROUP
[**]
In addition, the refresh program will apply to the following computer equipment:
o [**] Desktops for labs and training purposes
o [**] Power Desktops for labs and training purposes
o [**] Power Desktops
If the upgrade or replacement of development desktops will require (according to
the needs of the Customer's software development teams) a more frequent refresh
rate than the rate set out in Table 9, the requirement will be checked and
mutually greed by the Customer's IT department and HP-OMS. If approved, HP-OMS
may try to upgrade the relevant desktops part that is essential for the software
development needs (e.g. memory upgrade). If upgrading the specific part is not
possible, HP-OMS will replace the desktop on a per need basis and may use the
replaced desktop for refreshing office desktop.
(1) REFRESH RATE FOR SIX YEAR PERIOD means the amount of times every component
will be replaced during the [**]
(2) MAXIMUM ASSET AGE means the age specified in table 9 beyond which the assets
set out in Table 9 shall not exceed.
(3) EQUIVALENT means alternative Hardware, which falls under the same class
definition of the current Hardware from any vendor.
(4) STORAGE CAPABILITIES - HP-OMS will provide the Customer with [**]% growth in
total storage capacity every year in addition to the refresh rate described in
Table 9 in connection with Storage devices.
(5) OFFICE DESKTOP MAXIMUM AGE - HP-OMS will provide the Customer [**]office
desktop with Maximum Age of [**].
2.12 NEW EMPLOYEES HARDWARE AND SOFTWARE
HP-OMS will provide the Customer's new employees with Hardware and Software in
accordance with her/his job description and group category. The Customer is
required to notify HP-OMS 3 weeks in advance about the arrival such employee.
Once the Customer had notified HP-OMS about the arrival of a new employee,
HP-OMS will provide in 3- weeks period time the applicable hardware and
software.
The hardware will be supplied according to table 11 (CUSTOMER'S END-USERS
HARDWARE ALLOCATION BY GROUP AND SUB-GROUP) and software will be provided
according to Appendix C table 14 (Software to be provided to new employees)
herein.
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
In case Customer cannot notify HP-OMS about the arrival of a new employee 3
weeks in advance, HP-OMS will provide the new employee an alternative hardware
and/or software which will be as close as possible to the applicable
configuration until such hardware/software will be available.
New employees Hardware and Software will be subject to the same Technology
Refresh Rate as described in section 2.11 herein.
17
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
3 REGULAR AND LOW PRIORITY SERVICE LEVELS
3.1 HP-OMS OVERALL SLA COMMITMENT FOR REGULAR & LOW PRIORITY INCIDENTS
For each Incident, the Time to Own and Time to Resolve will be inserted into the
Ticketing System. For each Incident entered into the Ticketing System, the Time
to Own and the Time to Resolve for Service Levels (i.e. set out in Section 3.1,
Table 11) will be measured against the actual Time to Own and Time to Resolve
achieved by HP-OMS within the Measurement Period.
If HP-OMS does not comply with the Time to Own or the Time to Resolve Service
Levels with respect to a particular Incident, the ticket for such Incident shall
be deemed to be a failed ticket (whether or not HP-OMS eventually resolves the
Incident).
If HP-OMS complies with the Time to Own and the Time to Resolve Service Levels
with respect to a particular Incident, the ticket for such Incident shall be
deemed to be a successful ticket.
HP-OMS' "Overall SLA Commitment" with respect to Regular and Low Priority
Incidents is to meet or exceed in each (monthly) Measurement Period:
(a) The Minimum Success Rate for Time to Own,
(b) The Minimum Success Rate for Time to Resolve and
(c) The Minimum Success Rate for [**] (as defined in Section 3.2 below),
As set out in Table 11 below, based on the Service Levels for Regular and Low
Priority Incidents described in SECTION 3.3, TABLE 12, respectively.
TABLE 11: OVERALL SLA COMMITMENT - REGULAR AND LOW PRIORITY INCIDENTS
MINIMUM MINIMUM
SUCCESS RATE SUCCESS RATE
YEAR PRIORITY FOR TIME TO OWN FOR TIME TO RESOLVE [**]
---------------- -------- --------------- ------------------- --------
1st and 2nd Regular [**]% [**]% [**]%
support years Low [**]% [**]% [**]%
3rd support year Regular [**]% [**]% [**]%
and above Low [**]% [**]% [**]%
3.2 "MAXIMUM TIME TO RESOLVE" SERVICE LEVEL
For each Service, HP-OMS shall comply with the Time to Own, Time to Resolve and
Maximum Time to Resolve parameters for each Service Levels with Regular and Low
Priorities set out in Table 11. These Services are subject to the Service Level
Credits in the case of a Critical Service Level Failure, as detailed in Table 1.
18
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
The "Maximum Time to Resolve" indicator is intended to ensure that even in cases
where HP-OMS' fails to meet the "Time to Resolve" Service Level for an
applicable Regular or Low Priority Incident, as specified in Table 12 in Section
3.3 below, HP-OMS shall then meet a second "Maximum Time to Resolve" Service
Level for such Incident..
The Maximum Time to Resolve is defined as follows:
[**]
3.3 SERVICE LEVELS FOR REGULAR AND LOW PRIORITY INCIDENTS
TABLE 12: REGULAR AND LOW INCIDENTS SERVICE LEVEL
TIME TO TIME TO
TIME TO RESOLVE RESOLVE
OWN AN CLASS 1 CLASS 2
INCIDENT SITES (IN SITES (IN
NO. PRIORITY TYPE INCIDENT DESCRIPTION (IN HOURS) HOURS) HOURS)
---- ---------- -------------- --------------------------------- ---------- --------- ---------
Non critical operating system
61 Regular WES problem (e.g. OS error [**] [**] [**]
messages) affecting end user
work
Operating system problem-
62 Regular WES (e.g. OS crashed, end-user [**] [**] [**]
can't work)
End-user problem (e.g.
63 Regular WES hardware failure) affecting [**] [**] [**]
end user work
Customer Software Service
64 Regular WES Request affecting end user [**] [**] [**]
work
HP-OMS Software problem
65 Regular WES (e.g. Outlook problem, Internet [**] [**] [**]
Explorer error) affecting end
user work
Windows Administration
Service Request (e.g. password
reset/unlock, Group
66 Regular WES management, change end- [**] [**] [**]
user properties) affecting one
end user work
Fully supported application-
67 Regular WES IMAC Service Request (e.g. Ms- [**] [**] [**]
Office installation) and end
user cannot work
Make It Work Supported
68 Regular WES applications Urgent IMAC [**] [**] [**]
Service Request
Security Service Request (e.g.
End-user infected file, secure
remote etc) affecting end user
69 Regular WES work and the end user will not [**] [**] [**]
infect the company with
viruses
19
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
TIME TO TIME TO
TIME TO RESOLVE RESOLVE
OWN AN CLASS 1 CLASS 2
INCIDENT SITES (IN SITES (IN
NO. PRIORITY TYPE INCIDENT DESCRIPTION (IN HOURS) HOURS) HOURS)
---- ---------- -------------- --------------------------------- ---------- --------- ---------
Printing problem (e.g. printer
70 Regular WES doesn't work) and one end [**] [**] [**]
user cannot print with ability to
print to alternative printer
Any other end-user XXX service
components (which are not
71 Regular WES mentioned above) end user [**] [**] [**]
work is effected but can still do
most of the work
End-user hardware failure,
(e.g., PC hardware failure),
72 Regular Hardware affecting end user work with [**] [**] [**]
some functionality problems
Non critical Hardware Service
Request (e.g., hardware
73 Regular Hardware upgrade/replace) and end [**] [**] [**]
user work is affected
Printer hardware failure - (e.g.
End-user can't print); there are
74 Regular Hardware alternative printers on site for [**] [**] [**]
end user to use
Hardware IMAC request -
(e.g., relocate desktop
75 Regular Hardware location) and one end user [**] [**] [**]
cannot perform his/her tasks
Windows Administration -
Service Request (e.g. open
76 Regular Servers new NT/mail account) [**] [**] [**]
affecting end user work
Windows Administration
Service Request (e.g. password
reset/unlock, Group
77 Regular Servers management, change end- [**] [**] [**]
user properties) affecting one
end user work
Non urgent Service Request for
restore from backup (e.g.
78 Regular Servers Single user file, etc) and [**] [**] [**]
affecting end user work
UNIX server system Service
79 Regular Servers Request affecting end user [**] [**] [**]
work
Backend Service Incident that
80 Regular Servers is not a failure, affecting the [**] [**] [**]
work at one or more end users
at one Customer Site
Exchange Administration -
Service requests (e.g.
81 Regular Mail add/change mailing lists, [**] [**] [**]
change end-user properties)
and end user cannot perform
some/all work related to mail
Exchange Service Request
82 Regular Mail end-user cannot send or [**] [**] [**]
receive mail
Any other mail issues effect the
83 Regular Mail mail of end users that cannot [**] [**] [**]
send and receive mail
20
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
TIME TO TIME TO
TIME TO RESOLVE RESOLVE
OWN AN CLASS 1 CLASS 2
INCIDENT SITES (IN SITES (IN
NO. PRIORITY TYPE INCIDENT DESCRIPTION (IN HOURS) HOURS) HOURS)
---- ---------- -------------- --------------------------------- ---------- --------- ---------
LAN Network Service Request
84 Regular Network (e.g. Switch configuration [**] [**] [**]
change) affecting end user
work
WAN Network Service Request
85 Regular Network (e.g. Router configuration [**] [**] [**]
change) affecting the work of
more than one user at more
than one Customer Site
86 Regular Unix Support & UNIX workstation Service [**] [**] [**]
Administration Request affecting end user
work
87 Regular Unix Support & UNIX workstation hardware [**] [**] [**]
Administration Service Request affecting end
user work
88 Regular Unix Support & Unix workstation failure [**] [**] [**]
Administration affecting end user work
Service Request for Storage
89 Regular Storage configuration affecting one [**] [**] [**]
end user work
Administration or support
request for business
90 Regular Business application, affecting more [**] [**] [**]
Application than one user at more than
one Customer Site
Non critical operating system
problem (e.g. OS error
91 Low WES messages) not affecting end [**] [**] [**]
user work
Customer Software Service
92 Low WES Request not affecting end user [**] [**] [**]
work
HP-OMS Software problem
93 Low WES (e.g. Outlook problem, Internet [**] [**] [**]
Explorer error) not affecting
end user work
Windows Administration
Service Request (e.g. password
reset/unlock, Group
94 Low WES management, change end- [**] [**] [**]
user properties) not affecting
one or more end user work
Fully supported application-
IMAC Service Request (e.g. Ms-
95 Low WES Office installation) not [**] [**] [**]
affecting end user work
96 Low WES Make it Work Supported [**] [**] [**]
applications IMAC Service Request
Printing problem (e.g. printer
97 Low WES doesn't work) and one or more [**] [**] [**]
end users can print on other
printer
Any other end-user XXX service
components (which are not
98 Low WES mentioned above) does not [**] [**] [**]
effect the end user work
21
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
TIME TO TIME TO
TIME TO RESOLVE RESOLVE
OWN AN CLASS 1 CLASS 2
INCIDENT SITES (IN SITES (IN
NO. PRIORITY TYPE INCIDENT DESCRIPTION (IN HOURS) HOURS) HOURS)
---- ---------- -------------- --------------------------------- ---------- --------- ---------
End-user hardware failure,
99 Low Hardware (e.g., PC hardware failure) not [**] [**] [**]
affecting end user work
Non critical Hardware Service
Request (e.g., hardware
100 Low Hardware upgrade/replace) and end [**] [**] [**]
user work is not affected
Hardware IMAC Service
Hequest (e.g., relocate
101 Low Hardware Resktop location) and one [**] [**] [**]
dnd user can perform his/her
tasks
Windows Administration -
Service Request (e.g. open
102 Low Servers new NT/mail account) not [**] [**] [**]
affecting end user work
Windows Administration
Service Request (e.g. password
103 Low Servers reset/unlock, Group [**] [**] [**]
management, change end-
user properties) not affecting
end user work
Non urgent Service Request for
104 Low Servers restore from backup (e.g. [**] [**] [**]
Single user file, etc) not
affecting end user work
UNIX server system Service
105 Low Servers Request not affecting end user [**] [**] [**]
work
Backend Service Incident that
106 Low Servers is not a failure, not affecting [**] [**] [**]
the work at one or more end
users at one Customer Site
Exchange Administration -
Service requests (e.g.
107 Low Mail add/change mailing lists, [**] [**] [**]
change end-user properties)
and end user can perform
some/all work related to mail
Exchange Service Request -
108 Low Mail end-user can send or receive [**] [**] [**]
mail
Any other mail issues does not
109 Low Mail Affect the mail end users can [**] [**] [**]
esend and receive mail
LAN Network Service Request
(e.g. Switch configuration
110 Low Network change) not affecting end [**] [**] [**]
user work
WAN Network Service Request
(e.g. Router configuration
111 Low Network change) not affecting the [**] [**] [**]
work of more than one user at
more than one Customer Site
112 Low Unix Support & UNIX workstation Service [**] [**] [**]
Administration Request not affecting end user
work
22
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
TIME TO TIME TO
TIME TO RESOLVE RESOLVE
OWN AN CLASS 1 CLASS 2
INCIDENT SITES (IN SITES (IN
NO. PRIORITY TYPE INCIDENT DESCRIPTION (IN HOURS) HOURS) HOURS)
---- ---------- -------------- --------------------------------- ---------- --------- ---------
113 Low Unix Support & UNIX workstation hardware [**] [**] [**]
Administration Service Request not affecting
end user work
114 Low Unix Support & Unix workstation failure and [**] [**] [**]
Administration end user can still work
Service Request for Storage
115 Low Storage configuration not affecting [**] [**] [**]
end user work
Business Administration or support
116 Low Application request for business [**] [**] [**]
application, affecting one user
23
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
APPENDIX B: FORM OF CRITICAL SERVICE LEVEL REPORTS
SAMPLE OF CRITICAL SERVICE LEVEL REPORT TO BE SUBMITTED BY HP-OMS TO CUSTOMER ON
A MONTHLY BASIS:
TOTAL NUMBER
OF CRITICAL
SERVICE NUMBER OF
LEVELS FAILED CRITICAL CRITICAL SERVICE LEVEL CALCULATED
INCIDENTS/ SERVICE LEVEL INCIDENT CREDIT ERVICE LEVEL
COMMITMENTS INCIDENTS/ TYPE ALLOCATION CREDIT
PER CRITICAL COMMITMENTS FAILURE PERCENTAGE PER PERCENTAGE
NO. PRIORITY CRITICAL INCIDENT TYPE INCIDENT TYPE PER TYPE RATE TYPE PER TYPE
----- -------- ---------------------- ------------- --------------- -------- -------------- ------------
1 MUO [**] [**] [**] [**] [**] [**]
2 MUO [**] [**] [**] [**] [**] [**]
4 MUO [**] [**] [**] [**] [**] [**]
5 MUO [**] [**] [**] [**] [**] [**]
6 MUO [**] [**] [**] [**] [**] [**]
8 MUO [**] [**] [**] [**] [**]
9 Critical [**] [**] [**] [**] [**] [**]
10 Critical [**] [**] [**] [**] [**] [**]
TOTAL MONTHLY CREDIT PERCENTAGE (TO BE MULTIPLIED BY THE AT RISK AMOUNT) [**]
24
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
25
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
APPENDIX C: FORM OF SOFTWARE TO BE PROVIDED TO NEW CUSTOMER'S EMPLOYEES
TABLE 14: SOFTWARE TO BE PROVIDED TO NEW EMPLOYEE
DEVELOPER DESKTOP:
NAV
[**]
Win Zip
Acrobat Reader
[**]
4 Dos NT*
[**]
Office 2000
[**]
[**]
[**]
[**]
[**]
[**]
[**]
Babylon (supply only with license)
* The above items license to be provided by the Customer.
OFFICE DESKTOP
NAV
[**]
Win Zip
[**]
[**]
Office 2000
THE OPERATING SYSTEM SUPPLIED WILL BE IN ACCORDANCE WITH THE LOCAL LANGUAGE IN
USE AT THE OFFICE.
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit D
Transition and Stabilization
V7.0
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
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Transition and Stabilization
DOCUMENT INFORMATION
Project Manager: Xxx Xxx
Customer Project Na'ama Halperin
Manager:
Prepared by: Consolidation
Document Version No. V 6.0
Preparation Date: 16.09.2003
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INDEX
DOCUMENT INFORMATION................................................ 1
DOCUMENT INFORMATION................................................ 2
1 INTRODUCTION................................................. 4
1.1 DEFINITIONS................................................... 4
2 TRANSITION PHASE............................................. 6
2.1 GENERAL....................................................... 6
2.2 OPERATIONAL TRANSFER.......................................... 6
2.2.1 TRANSFER OPERATIONS ACTIVITIES FROM CUSTOMER TO HP-OMS..... 6
2.2.2 HP-OMS DAY 1 OPERATION..................................... 7
2.2.3 REQUEST FOR SERVICE DURING TRANSITION PHASE................ 9
2.2.4 DEFINE STANDARDIZATION POLICY.............................. 10
2.2.5 ESTABLISH HP-OMS REGIONAL SUPPORT CENTERS (RSC)............ 11
2.2.6 ESTABLISH HP-OMS MONITORING & CONTROL CENTER (MCC)......... 11
2.3 GAPS UPGRADE.................................................. 12
2.3.1 BACKUP SOLUTION COMPANY WIDE............................... 13
2.3.2 ANTIVIRUS STABILIZATION.................................... 14
2.3.3 CONNECT UNCONNECTED CUSTOMER SITES TO CUSTOMER'S NETWORK 15
2.3.4 TECHNOLOGY GAPS PER CUSTOMER SITE ......................... 17
2.4 SECURITY COMPLIANCE........................................... 18
2.4.1 SECURITY SERVICES ......................................... 18
2.4.2 SECURITY POLICY ........................................... 18
2.4.3 SECURITY COMPONENTS ....................................... 18
2.5 SOFTWARE LICENSE COMPLIANCE................................... 19
2.6 HP-OMS'S APPROACH & ASSOCIATED TIMELINES...................... 20
3 STABILIZATION PHASE.......................................... 21
3.1 OBJECTIVE..................................................... 21
3.2 SOLUTION INITIATIVES - GLOBAL PROJECTS........................ 21
3.3 DESCRIPTION OF SOLUTION INITIATIVES........................... 21
3.3.1 [**] IMPLEMENTATION ........................................ 22
3.3.2 MONITORING AND CONTROL SYSTEM IMPLEMENTATION .............. 22
3.3.3 WORLDWIDE NETWORK SOLUTION................................. 23
3.3.4 SOFTWARE DISTRIBUTION SYSTEM IMPLEMENTATION................ 25
3.3.5 [**]
3.3.6 [**]
APPENDIX B - TIMETABLE.................................................. 29
APPENDIX D - PROCEDURES TO BE DEFINED DURING TRANSITION PHASE........... 30
APPENDIX E - LIST OF THIRD PARTIES OUTSOURCERS.......................... 34
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1 INTRODUCTION
This Exhibit D is attached to the Master Services Agreement, dated as of
[_____________] 2003 by and between HP-OMS and Customer (the "Agreement") and
made a part thereof by reference. Capitalized terms not otherwise defined herein
shall have the meaning specified in the Agreement.
1.1 DEFINITIONS
"TRANSITION" - means the work that must be done to transfer the accountability
of all aspects included in the Services from Customer to HP-OMS without
interrupting the operation delivery.
"AS-IS LEVEL" means the service level of the Services existing at the Customer
Sites immediately prior to the Commencement Date, as described in the Customer
Site visit reports, collected by HP-OMS representatives during the Due Diligence
phase, and set out in APPENDIX A herein (Tecnomatix Site Reports), subject to
any improvement or changes that where made since then by the Customer prior to
the commencement date.
"TIMETABLE" has the meaning set out in SECTION 1(3)
"TRANSITION AND STABILIZATION PHASES" has the meaning set out in Section 1.3.
1. The Transition and Stabilization Phases shall commence as of the Commencement
Date and shall continue at varying lengths per Customer Site, until the
completion of the final Transition Milestone at each applicable Customer
Site, as described in the Timetable specified in Appendix B ("Timetable").
Accordingly, the Transition and Stabilization Phases may end at one Customer
Site while continuing at another Customer Site, provided, however, that in no
event shall the Transition and Stabilization Phases extend later than the ten
(10) month period following the Commencement Date (the "Transition and
Stabilization Phases").
2. During the Transition and Stabilization Phases, HP-OMS will: (i) provide all
the Services for a maximum period of the first ten (10) months following the
Commencement Date at the "As-Is" Level, provided that HP-OMS shall provide
Special Support for all Customer Software; and (ii) perform the transition
and stabilization services described in this Exhibit in accordance with the
Transition and Stabilization Milestones set out in the Timetable. Upon
completion of the Transition and Stabilization Phases at each applicable
Site, HP-OMS shall provide the Services at the Service Levels without
Credits. After ten (10) month from commencement date, HP-OMS shell provide
the Services at the Service Levels including Credits.
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3. During the Transition and Stabilization Phases, HP-OMS will build the
Services operations, including without limitation, all tools, methodologies
and standardizations to enable the provision of the Services in accordance
with the Service Levels upon completion of the Transition and Stabilization
Phases.
4. At first during the Transition Phase, HP-OMS will provide the Services with
no change as they were before Commencement Date. Then, HP-OMS will
systematically set up its mode of operations, as described herein, in order
to achieve the Service Levels. Changing the mode of operation and providing
solutions for agreed gaps will enable HP-OMS to standardize the Service
Levels. In addition, HP-OMS shall define the detailed IT business procedures,
subject to Customer's written approval.
5. The work during the Transition and Stabilization Phases will be performed in
two parallel phases: Transition Phase and Stabilization Phase.
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2 TRANSITION PHASE
2.1 GENERAL
TRANSITION PHASE IS DIVIDED INTO TWO TYPES OF ACTIVITIES:
o Operational transfer
o Technological gaps closure
2.2 OPERATIONAL TRANSFER
OPERATIONAL TRANSFER INITIATIVES:
o Transitioned Employees transfer - according to EXHIBIT F
o Transfer operations activities from Customer to HP-OMS
o Set up HP-OMS Monitoring& Control Center (MCC)
o Set up HP-OMS Regional Support Centers (RSC)
o Define support Policy
o Define working procedures
2.2.1 TRANSFER OPERATIONS ACTIVITIES FROM CUSTOMER TO HP-OMS
The operational transfer shall be the first part of the Transition Phase. During
this phase HP-OMS will:
o Define (subject to Customer's approval) the support policy and guidelines
including but not limited to:
o The roles and responsibilities of the MCC
o The roles and responsibilities of the RSC
o Standardization
o Security compliance according to Customer's Security Policy
o Software license compliance
o 3 tiers of support (as described in EXHIBIT B, SECTION 5 (INCIDENT
MANAGEMENT))("SUPPORT TIERS")
o Define (subject to Customer's approval) operational and technical
procedures (as described in Appendix D - Procedures to be Defined During
Transition Phase)
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o Conduct training (HP-OMS-culture, administrative processes & procedures)
- HP-OMS will train/educate HP-OMS Personnel with all necessary
information and details in respect of the Services, including without
limitation the working procedures.
o Create site folder - HP-OMS will create a "Site Folder" for every
Customer Site. Each Site Folder will include information similar to the
content managed as of the Commencement Date at the Customer Site in
Israel. That folder includes:
o NT Server Form
o Unix Server Form
o List of workstations
o Network & relationships (Wins, DHCP etc) Diagrams
o Excel sheet for all names and roles of Customer Site users including
names of power users and users who authorized to initiate Emergency
Escalation Process
o Hardware inventory and users who are the "owners" of the hardware
o Applications in use at the Customer Site and support procedures for
the applications (e.g. installation, troubleshoot, etc.)
o Backup and restore procedures
o Any relevant procedures for Customer Site operation
o Ensure that the Baseline Survey and follow-up satisfaction surveys are
conducted, in accordance with the terms and conditions of EXHIBIT C
SECTION 5 (BASELINE INDEPENDENT SURVEYS) of the Agreement.
2.2.2 HP-OMS DAY 1 OPERATION
As of the commencement date:
i. [**];
ii. [**]
iii. HP-OMS shall take prompt steps to ensure that the third party contractors
providing outsourcing services to Customer immediately prior to the
Commencement Date, listed in Appendix [E] (the "THIRD PARTY OUTSOURCERS")
shall continue to provide such services through HP-OMS at least t for a
period of 4 months (Publicom for a period of 6 months), subject to
SECTIONS [7] (REQUIRED CONSENTS) AND [5.1B] (CUSTOMER RIGHTS CONCERNING
KEY PERSONNEL; REPLACEMENT OF HP-OMS PERSONNEL) of the agreement.
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IV. There are Customer's employees who provide support Services prior to
Commencement Date and those Services are part of HP-OMS scope under this
agreement. Some of those employees are included in Exhibit F and some are
not. Those employees that are excluded from Exhibit F will continue to
provide the same support Services according to the "As Is" description as
shown in Appendix A herein. This is until HP-OMS will take operational
responsibility to the applicable site and to a period no longer then 10
months.
In the event that, for any reason, HP-OMS fails to contract for the continuing
services of the Third Party Outsourcers throughout the Transition and
Stabilization Periods and Customer pays for such services directly to the Third
Party Outsourcers, Customer shall be entitled to deduct the amount of such
payments from the quarterly Target Price invoice from HP-OMS. Such Third Party
Outsourcer payments will be limited to the fees payable by the Customer for such
Outsourcers as mentioned in the Due Diligence findings and subject to HP-OMS
review of the invoice prior the payment. Customer will have the right to deduct
such payments as follows:
o Israel support contractor ("Integrity") - Deduction will be only for a
maximum period of up to 4 months if HP-OMS failed to contract for the
continuing services
o Israel security contractor ("Publicom") - Deduction will be only for a
maximum period of up to 6 months if HP-OMS failed to contract for the
continuing services
o Italy support contractor (Xxxxx Xxxxxxx) - Deduction will be only for a
maximum period of up to 6 months if HP-OMS failed to contract for the
continuing services
HP-OMS will prepare a training program for all HP-OMS Personnel (including
without limitation the Transitioned Employees) required for the provision of the
Services during the Transition and Stabilization Phases, provided that such
training will not adversely affect the Customer's daily activities. The training
program will include, without limitation:
o HP-OMS culture and methodologies
o The new support structure (RSC, MCC)
o Working procedures
o Scope of Work and Services to be provided to the Customer
In connection with all purchase orders issued by Customer prior to the
Commencement Date for HP-OMS Hardware, HP-OMS Software and/or Customer Software,
HP-OMS shall have the responsibility for (i) providing the Services in
connection therewith; and (ii) paying the relevant invoices, if received by
Customer or HP-OMS after the Commencement Date (or if not paid by HP-OMS,
Customer may pay, after receiving HP-OMS approval, the same and deduct the
amount of such payments from the quarterly Target Price invoice from HP-OMS).
Such approval will not be withheld without a reasonable cause.
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From and after the Commencement Date, any purchase request will be transferred
to HP-OMS to provide procurement services as defined in EXHIBITS A-B, subject to
SECTION [11] (CHANGE MANAGEMENT) OF THE AGREEMENT.
2.2.3 REQUEST FOR SERVICE DURING TRANSITION PHASE
During the Transition Phase, HP-OMS will set up its operations of the RSC and
the MCC.
Without limiting HP-OMS' obligations to provide the Services in accordance with
the Agreement, HP-OMS will ensure that its support engineers and all other
relevant HP-OMS Personnel (e.g. Network Engineer, System Administrator, etc.)
will learn, understand and gain in depth knowledge about the Customer's work
processes and needs. This stage is scheduled to last ninety (90) calendar days
as described in the APPENDIX B herein.
HP-OMS shall provide Customer end user support during the Transition and
Stabilization Phases and thereafter, in accordance with the following request
procedures, depending on the stage at which the request is made:
POINT AT WHICH SERVICE
REQUEST IS MADE (IN
DAYS FOLLOWING
COMMENCEMENT
DATE) METHOD FOR CUSTOMER REQUESTS FOR SUPPORT
----------------------- --------------------------------------------
Customer Site in Israel - via syshelp
1 - 30 DAYS Customer Sites other than in Israel - AS IS
PRIOR TO COMMENCEMENT DATE
ISRAEL - VIA SYSHELP
31-90 DAYS Customer sites other than in israel - via
email to dedicated email address
Israel - Via Ticketing System
91-150 DAYS Customer Sites Other Than in Israel - Via
Email to Dedicated Email Address
151 DAYS - End of Term All Customer Sites - Via Ticketing System or
According to Procedure Defined In EXHIBIT B,
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Piont at which service
request is Made (in
days following Method for Customwe Request for Support
Commencement
Date)
SECTION 5.6 (TICKETING SYSTEM MANAGEMENT)
2.2.4 DEFINE STANDARDIZATION POLICY
HP-OMS shall defined standards (for Customer's prior written approval) and then
shall standardize the IT Environment in a manner consistent with HP-OMS'
obligations to provide the Services in accordance with the Service Levels.
HP-OMS understands the complexity of the Customer's IT Environment and the fact
that support of Customer's IT Environment will include support of the following
environments:
o Office environment; and
o Development environment
HP-OMS will define a standard (for Customer's prior written approval) and then
standardize for each such environment the HP-OMS Hardware and HP-OMS Software.
It will be Customer's responsibility to cooperate with HP-OMS in its efforts to
implement the Customer-approved standardization policy in each environment,
provided that Customer end users are not prevented or delayed from performing
their daily tasks or otherwise adversely affected as a result of such
cooperation.
HP-OMS shall bear, and in no case shall Customer incur or be responsible for
paying, any additional costs or expenses as a result of HP-OMS' standardization
efforts unless the Customer did not purchase enough licenses as defined in
SECTION 2.5 (SOFTWARE LICENSE COMPLIANCE) HEREIN.
For example, if as a result of a new HP-OMS antivirus standard, existing
anti-virus software licenses are required to be replaced and purchased at one or
more Customer Sites, HP-OMS shall bear all costs and expenses in connection with
the purchase, installation and ongoing maintenance and support of such software
licenses at the applicable Customer Site(s), in accordance with the Services.
For the avoidance of doubt, HP-OMS shall define (with the Customer's prior
written approval) the Customer's IT corporate standards (e.g. IT corporate
internet browser application for office environment - Netscape or Explorer) and
standardize the same in accordance with this Section.
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2.2.5 ESTABLISH HP-OMS REGIONAL SUPPORT CENTERS (RSC)
Regional Support Centers are HP-OMS' 1st tier support arm at the Class 1
Customer Sites. RSCs support Class 1 and Class 2 Customer Sites as described in
EXHIBIT B SECTION 5.1, TABLE 2. The RSC will serve as a single point of contact
(SPOC) for Customer end-users.
HP-OMS responsibilities in setting up the RSC will include without limitation:
o Defining RSC support workflow and working procedures until Monitoring
and Control System is operational.
o Defining escalation process until Monitoring and Control System is
operational.
o Hiring RSC personnel if required
o Training the RSC personnel on the defined support workflow and working
procedures
o Publishing the support workflow and escalation process to the Customer
end users.
The RSC at the Israeli Customer Site will receive daily/weekly activity reports
from RSC personnel prior to the implementation of the Ticketing System. These
reports will assist the RSC to control the Customer Site support.
Once the MCC is operative, HP-OMS will update the support workflow and working
procedures and the RSC will continue to serve as first tier support to the
Customer end users.
2.2.6 ESTABLISH HP-OMS MONITORING & CONTROL CENTER (MCC)
The Monitoring & Control Center (MCC) will be located at the HP-OMS premises in
Ra'anana, Israel. The MCC functions will include without limitation, providing
the RSC and the Customer global control over the worldwide support process, 2nd
and 3rd tier support (as defined in EXHIBIT B, SECTION 5 (INCIDENT MANAGEMENT),
and ability to monitor the infrastructure and system administration services.
HP-OMS will install a communication line between the MCC and the Israeli
Customer Site that will be used to connect the MCC to the Customer WAN as
detailed in SECTION 3.3.3 herein.
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In order to provide support for HP-OMS efficient provision of the Services,
HP-OMS will implement information systems as described in SECTION 3
[STABILIZATION PHASE] herein.
Only authorized HP-OMS Personnel from the MCC will have access to the Customer
network.
Until the Transition and Stabilization Phases are finalized, the MCC will
provide basic services, including without limitation:
o 2nd and 3rd Support Tiers for the RSC
o NT and Unix system administration
o Exchange administration and support
o Security Systems (e.g. Firewall) management
o Non proactive network monitoring
o DBA Services
2.3 GAPS UPGRADE
HP-OMS shall implement and perform projects to address the agreed technology
gaps in Customer's infrastructure at the applicable Customer Sites, in
accordance with the Timetable, and as specified below and in Exhibit E Appendix
D.
HP-OMS RESPONSIBILITIES
o Consult the Customer on any open technical issues, implement and support
the suggested solution for each technology gap upgrade item, as specified
in EXHIBIT E, APPENDIX C (THE EXHIBIT E GAPS UPGRADES")
o Provide the Customer, prior to HP-OMS performing any work, with a
separate cost list for all technology gap upgrade items, which are not
defined in Exhibit E, Appendix C, for Customer's approval, and implement
and support the agreed solution for such technology gap upgrades, as
agreed in writing between the parties (such agreed technology gap
upgrades and the Exhibit E GAPS UPGRADES COLLECTIVELY, the "gaps
upgrades"). customer responsibilities
o Review and confirm whether it approves of HP-OMS solution design for
the Gaps Upgrades
JOINT RESPONSIBILITIES
o HP-OMS will work with Customer to define a working plan to implement Gaps
Upgrades
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GAPS UPGRADE INITIATIVES INCLUDE AMONG OTHER THINGS:
o Backup solution company wide
o Antivirus stabilization
o Technology gaps - Provide solutions per Customer Site
o [**]
2.3.1. BACKUP SOLUTION COMPANY WIDE
2.3.1.1 PURPOSE AND BACKGROUND
As discovered during the Due Diligence phase, backup and recovery procedures are
not clearly defined and there is no working backup infrastructure for every
Customer Site. The Customer Sites locations at which backup and restore systems
will be improved, in accordance with the standard backup policy by HP-OMS are:
o [**]
HP-OMS shall implement the backup and recovery solution before other major
projects, in accordance with the Timetable.
2.3.1.2 OBJECTIVES
The objectives of this project are:
o Define backup and recovery procedures
o Reliable backup and recovery solutions at all Customer Sites
o Improve backup success rate
2.3.1.3 PROJECT SCOPE
The scope of this project is to:
o Define backup and restore policy
o Analyze and define backup recovery and restore procedures
o Design backup solution per Customer Site
o Purchase systems and media (tapes)
o Reconfigure existing systems to comply with HP-OMS backup procedures
(Hardware and Software)
o Implement Backup and Restore Systems at all Customer Sites
o Connect the backup systems to the Monitoring and Control System (will be
done as part of the Stabilization Phase)
o Nominate at least two backup operators) per Class 2 Customer Site and
train them
o Create and submit to the Customer, commencing immediately after the
implementation of the backup system, weekly and monthly backup success
rate reports.
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2.3.1.4 PROJECT ABSTRACT DESCRIPTION
o Design new/upgraded backup solution based on the existing tools or
implementation of new tools
o Implementation of the defined solutions at all Customer Sites
o Analyze the existing backup and recovery requirements
o Analyze roles and responsibilities
o Design new/changed backup solution based on the existing tools or
implementation of new tools
o Implementation of the defined solution
2.3.1.5 DELIVERABLES
o Backup and restore policy in accordance with the Service Levels
o Backup and restore procedures per Customer Site
o Document solution design for backup and recovery processes
o Operative Backup and restore system per Customer Site
o Training kit for backup operators
o Weekly and monthly backup success rate reports commencing immediately
after implementation of the backup system and continuing throughout the
Term.
2.3.2 ANTIVIRUS STABILIZATION
2.3.2.1 PURPOSE AND BACKGROUND
As discovered during the Due Diligence phase, Antivirus protection is not
installed on all Customer Site servers and workstations and virus update is not
always being performed correctly. The survey also discovered that different
Antivirus applications are used company wide.
Due to the high security risk of virus intrusion attacks, HP-OMS will deal with
this issue as one of the first technology projects (in accordance with the
Timetable) to ensure that standard Antivirus on all Customer servers and
workstation will be installed and configured and will operate and be supported
in accordance with the Service Levels.
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2.3.2.2 OBJECTIVES
The objective of this project is:
o Provide virus protection for all company computers (Servers and
workstations) in accordance with the Service Levels
2.3.2.3 PROJECT SCOPE
The scope of this project is to:
o Design new/changed Antivirus solution
o Purchase missing Antivirus Licenses. If replacing existing licenses not
compliant with standard at no cost. If there were no licenses before
Commencement Date, on Customer expense.
o Install Antivirus applications on all Servers and Workstation at all
Customer Sites
o Configure Antivirus applications according to the solution design at all
Customer Sites
o Verify that updates are done constantly at all Customer Sites
o Train support teams on security policy and Antivirus procedures
o Communicate the importance of Antivirus updates to end-users
2.3.2.4 PROJECT ABSTRACT DESCRIPTION
o List all the workstations and the servers that require Antivirus
installation/reinstallation/update
o Execute changes to necessary computers
o Update the scanning and update/scan procedure in all the computers:
servers every day and workstations every week
o Monitor servers and workstations to ensure computers are working
according to the update/scan procedure
2.3.2.5 Deliverables
o Security policy implementation
o Antivirus procedures
o Document solution design for Antivirus
o Constant Antivirus updates on all workstations and Servers at all
Customer Sites
o Training kit for support teams and end-users
o Weekly and monthly updates reports for Servers
2.3.3 CONNECT UNCONNECTED CUSTOMER SITES TO CUSTOMER'S NETWORK
2.3.3.1 PURPOSE AND BACKGROUND
In order to provide Services to all Customer's end-users, HP-OMS will use remote
control technology. The parties acknowledge that not every Customer Site as of
the Commencement Date has a connection to the Customer network. HP-OMS will
decide whether or not to connect an unconnected office to the Customer's
network, as long as the Service Levels to an unconnected office will be
maintained. THE CUSTOMER SITES IN THE FOLLOWING LOCATIONS [WILL BE CONNECTED] TO
THE CUSTOMER'S NETWORK NO LATER THEN TEN (10) MONTH AFTER COMMENCEMENT DATE:
Brussels
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2.3.3.2 OBJECTIVES
The objective of this project is:
o To connect all Customer Sites (not connected as of the Commencement Date)
to the Customer network in accordance with the Timetable.
2.3.3.3 PROJECT SCOPE
The scope of this project is to:
o Learn and identify the Customer's technology requirements to perform the
connection per unconnected Customer Site
o Decide on communication method per Customer Site
o Order communication lines and relevant equipment
o Install security systems according to security policy
o Install and configure Customer Sites' systems to enable remote monitoring
o Connect the Customer Sites
2.3.3.4 PROJECT ABSTRACT DESCRIPTION
o Understand Customer's technology needs
o Look for suitable technology solution that complies with the Customer
global network
o Contact network provider to perform the connection
o Define working procedures with new connection method
o Execute necessary connection of the Customer Sites
2.3.3.5 DELIVERABLES
o HP-OMS Personnel will be able to support end-users by remote control on a
Customer-wide basis
o Ability to monitor all Customer infrastructure at all Customer Sites
o Ability to perform automatic software distribution to all Customer Sites
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2.3.4 TECHNOLOGY GAPS PER CUSTOMER SITE
2.3.4.1 PURPOSE AND BACKGROUND
The parties acknowledge that each Customer Site has a technology gap, which
adversely affects the quality of IT services and the service that the end-users
are receiving, and which has a significant impact on the overall Customer IT
operation.
This project consists of implementing necessary changes to bring the Customer
Sites to a technology level in accordance with the Timetable, which will enable
HP-OMS to provide the Services according to the Service Levels. HP-OMS shall
perform the technology gaps projects in accordance with a detailed report
prepared by HP-OMS based on its analysis of each Customer Site, which report's
recommendations are detailed in Exhibit E, Appendix C.
2.3.4.2 OBJECTIVES
The objective of this project is to:
o Solve major IT Environment infrastructure issues at Customer Sites
2.3.4.3 Project Scope
The scope of (and HP-OMS' responsibilities under) this project is to:
o Define Class 1 Customer Site IT Environment infrastructure standards
o Define Class 2 Customer Site IT Environment infrastructure standards
o List technology gaps at each Customer Site
o Purchase (at no additional cost to Customer in excess of the fees set out
in Exhibit E) required equipment and install it
o Provide and implement solutions for technology gaps according to gaps
table list described in Exhibit E Appendix C
2.3.4.4 PROJECT ABSTRACT DESCRIPTION
o Define Class 1 Customer Site IT Environment infrastructure standards
o Define Class 2 Customer Site IT Environment infrastructure standards
o Suggest technology solutions
o Set up a working plan to deal with technology gaps
o Work with Customer to reach agreement on work which needs to be done
o Execute resolution
2.3.4.5 DELIVERABLES
o Customer Sites will be compatible with Customer's needs
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2.4 SECURITY COMPLIANCE
[**]
2.4.1 SECURITY SERVICES
[**]
2.4.2 SECURITY POLICY
The Customer will provide HP-OMS, within one month after the Commencement Date,
an Information Security Policy.
The Customer's Information Security Policy defines information security as the
protection of information from loss of confidentiality, integrity and/or
availability. The scope of the policy includes all information, which is stored,
processed, transmitted or printed, using any system or storage medium. The
policy shall apply to all Customer Employees and HP-OMS Personnel.
For the first [**] months of the Transition and Stabilization Phases, HP-OMS
will maintain at least the same level of security ("As-Is") as detailed in
section 2.4.3 herein. Based on the Customer Information Security Policy, HP-OMS
and the Customer will define the security business procedures, which will comply
with Customer's security policy within [**] months after the Customer will
provide HP-OMS its Security Policy. HP-OMS shall comply with the Customer's
Information Security Policy and procedure and shall ensure its enforcement among
all relevant HP-OMS Personnel. Customer shall comply with the Customer's
Information Security Policy and procedure. Customer will submit HP-OMS its
security policy for review and approval. If Customer security policy will
include additional Services other then detailed in section 2.4.3 will be on
Customer's expense.
2.4.3 SECURITY COMPONENTS
HP-OMS acknowledges that the Customer has in place, immediately prior to the
Commencement Date, security standards that allow for or have:
19
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Transition and Stabilization
o [**]
o [**]
o [**]
o [**]
o [**]
o [**]
o [**]
o [**]
o [**]
o [**]
o [**]
o [**]
o [**]
o [**]
o [**]
For the first [**] months of the Transition and Stabilization phases, HP-OMS
will maintain at least the same level of security as detailed above and will
implement or suggest security improvements that will be defined no later then
[**] months after commencement date.
The time frame for security components versions upgrade (e.g. Fire wall,
Antivirus definition files) will be mutually defined per version release. [**].
2.5 SOFTWARE LICENSE COMPLIANCE
HP-OMS will gather and provide to Customer within [**] months from the
Commencement Date, information to Customer concerning the number of HP-OMS
Software licenses purchased by the Customer worldwide, before the Commencement
Date and will compare that number to the number of HP-OMS Software licenses in
use, as determined though HP-OMS' inventory system. In order to obtain any
missing licenses, for Microsoft software, Customer will pay directly to HP-OMS
the applicable amount to cover software relative cost in the baseline payments.
The pricing for the customer will be calculated using the Microsoft Enterprise
pricing model. For other software license, the Customer, in its discretion,
shall choose between purchasing the missing licenses directly, through a third
party or through HP-OMS, under the procurement process described in EXHIBIT A
SECTION 7.1(PROCUREMENT SERVICES), subject to SECTION 11 (CHANGE MANAGEMENT) OF
THE AGREEMENT.
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2.6 HP-OMS'S APPROACH & Associated Timelines
HP-OMS is committed to the Timetable as described in Appendix B herein. The
Timetable shall not be revised or amended without the Customer's prior written
consent. Time is "of the essence" with respect to the completion of the
Transition and Stabilization Phases at all Customer Sites in accordance with the
Agreement not later than [**] months following the Commencement Date.
Accordingly, if HP-OMS fails to complete the Transition and Stabilization Phases
within such period as a result of factors within the responsibility and control
of HP-OMS, Customer will provide HP-OMS with a list of rejections that should be
accepted by both parties and HP-OMS will have a Grace Period of [**] months to
correct those rejections. [**]
For the avoidance of doubt HP-OMS will provide the Services to the Customer
using Service Level measurements [**] months after the Commencement Date.
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3 STABILIZATION PHASE
The fully detailed Timetable for the Stabilization Phase is set out in Appendix
B, attached hereto and made a part of this Exhibit by reference.
3.1 OBJECTIVE
The objective of the Stabilization Phase is to implement information systems
that will assist HP-OMS to provide the Services.
3.2 SOLUTION INITIATIVES - GLOBAL PROJECTS
The following table summarizes the solution initiatives, which are considered as
required to evolve the Customer's IT Environment into one that compares to
HP-OMS Best Known Method (BKM) and ITSM guidelines].
TABLE 2: GLOBAL PROJECTS
GLOBAL PROJECTS
----------------------------------------------------------------------------
[**]
[**]
[**]
[**]
[**]
[**]
[**]
Therefore, the Parties agree that the implementation of the [**] and the
Monitoring and Control System is a condition precedent to meeting minimum
requirements to perform services according to the Service Levels. [**]
3.3 DESCRIPTION OF SOLUTION INITIATIVES
All Stabilization initiatives are described in more detail in the following
section with respect to:
o Purpose and Background
o Objectives
o Project scope
o Project abstract description
o Deliverables
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3.3.1 [**] IMPLEMENTATION
3.3.1.1 PURPOSE AND BACKGROUND
[**]
3.3.1.2 OBJECTIVES
o [**]
3.3.1.3 PROJECT SCOPE
o [**]
3.3.1.4 PROJECT ABSTRACT DESCRIPTION
o [**]
3.3.1.5 DELIVERABLES
o [**]
3.3.2. MONITORING AND CONTROL SYSTEM IMPLEMENTATION
3.3.2.1 PURPOSE AND BACKGROUND
Using advanced technology infrastructure with advanced management and monitoring
abilities is required to operate a 24/7 (manned 24/6) central control center,
which will manage all company infrastructure and control support activities
worldwide. MCC operation will rely on this technology to provide real time
support and monitoring from a central location. MCC will also be responsible for
the availability and functionality of the Monitoring and Control System.
3.3.2.2 OBJECTIVES
o Provide abilities to manage company infrastructure from central location
o Support back-office systems and communication infrastructures
o Ensure systems up-time
o Implement web enabled Monitoring and Control System to be used at all
Customer Sites worldwide.
o Preventive maintenance for HP-OMS Software and HP-OMS Hardware
o Improve performance and availability checks
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3.3.2.3 PROJECT SCOPE
o Define Monitoring and Control System (MCS) technology requirements
o Define automated checks and related alerts
o Implement the Monitoring and Control System at all Customers Sites,
starting with Israel and then at the rest of the world
o Optimize the preventive maintenance actions
3.3.2.4 PROJECT ABSTRACT DESCRIPTION
[**]
3.3.2.5 DELIVERABLES
o 7/24 monitored IT Environment
o [**]
o Provide Service reports as defined in EXHIBIT B APPENDIX H
o Constant update of solutions knowledge base
o Improve resolution of Service Requests
3.3.3 WORLDWIDE NETWORK SOLUTION
Current Customer Wide Area Network (WAN) relays on two types of communication
lines: Frame Relay (F/R) and Internet lines. 12 Customer Sites are connected via
F/R lines to the Israeli Customer Site office. X sites are connected via
point-to-point lines.
3.3.3.1 PURPOSE AND BACKGROUND
Customer is currently (prior to the Commencement Date) using (at most of its
Customer Sites) Infonet as the private WAN provider and a local ISP for an
Internet connection.
o [**]
3.3.3.2 OBJECTIVES
o [**]
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3.3.3.3 PROJECT SCOPE
o [**]
3.3.3.4 Project Abstract Description
HP-OMS will connect Customers sites to the WAN network according to connection
types methods as follows:
o [**]
CUSTOMER'S SITES CONNECTION TYPE WILL BE AS FOLLOWS:
[**] [**] [**]
----- ------ --------
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
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[**] [**] [**]
----- ------ --------
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
WAN network Services that will be provided by HP-OMS to the Customer will
comply with the Service Levels as detailed in EXHIBIT C APPENDIX A SECTIONS 2.4,
2.5.
3.3.3.5 DELIVERABLES
o [**]
o Monthly report of compliant with the above performance tables
3.3.4 SOFTWARE DISTRIBUTION SYSTEM IMPLEMENTATION
3.3.4.1 PURPOSE AND BACKGROUND
HP-OMS acknowledges the importance to Customer of achieving ability to support
software distribution.
Software Distribution Systems implementation will allow HP-OMS to perform
Software distribution and installation, and remote troubleshooting tools.
3.3.4.2 OBJECTIVES
The objective of this project is:
o Enable electronic HP-OMS Software and Customer Software distribution
o Standardize HP-OMS Software in use
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REASONS FOR USING ELECTRONIC SOFTWARE DISTRIBUTION TOOL:
o ELECTRONIC SOFTWARE DISTRIBUTION - Eliminates desktop visits and human
error by electronically distributing Software to all desktops and servers
on the Customer network from a central location.
o INSTALLATION - Provides an installation tool, which allows repackaging
changes and writing scripts to create a package for any Windows-based
application. The users will use these scripts to install or update the
Software on their computers.
o UNATTENDED SOFTWARE INSTALLATION - Installs Software without requiring
any user interaction and can install Software with administrator rights
using Systems Management Server for off-hours distribution or
distribution to servers
3.3.4.3 PROJECT SCOPE
o Implement software distribution system for all types of Customer users
(e.g. software development users, administrative users) in supported
languages as defined in EXHIBIT B SECTION 5.7 (TICKETING SYSTEM
MANAGEMENT)
3.3.4.4 PROJECT ABSTRACT DESCRIPTION
o Analyze the different types of Software versions and languages, which
will be distributed around the world
o Design software distribution and management servers' architecture.
o Define and document working procedures including installation approval
procedure
o Installation of management servers according to suggested architecture.
o Gather information on the status of computers and the installed Software.
o Build the necessary scripts to enable the users to perform the Software
updates remotely.
o Build the reports and the control procedures in order to have the same
Software level in all the computers and to control the Software that is
being installed in each computer
o Train the support teams and end-users how to use the system
o Implementation of the defined solution
3.3.4.5 DELIVERABLES
o Software distribution and installation approval working procedures
o Operative Software distribution system
o Training kit for support teams and Customer end-users
o Up to date Software inventory
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3.3.5 [**]
3.3.5.1 Purpose and Background
[**]
3.3.5.2 OBJECTIVES
The objectives of this project are:
o [**]
3.3.5.3 PROJECT SCOPE
o [**]
3.3.5.4 PROJECT ABSTRACT DESCRIPTION
o [**]
3.3.5.5 DELIVERABLES
o [**]
3.3.6 [**]
3.3.6.1 PURPOSE AND BACKGROUND
[**]
3.3.6.2 OBJECTIVES
o [**]
3.3.6.3 PROJECT SCOPE
o [**]
3.3.6.4 PROJECT ABSTRACT DESCRIPTION
o [**]
o Train the end-users worldwide about the new system
o Implement support knowledge base
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3.6.5.5 DELIVERABLES
[**]
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APPENDIX B - TIMETABLE
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APPENDIX D - PROCEDURES TO BE DEFINED DURING TRANSITION PHASE
TYPE PROCEDURE NAME DESCRIPTION
-------- ----------------------- ----------------------------------------------------------------------
Security Permissions procedure How to manage permissions to a user account. The procedure will include
process description for permission approval for end-user, which level
will be given, etc.
Security Remote Access Which users are entitled to Secure Remote connection.
How to use the secure remote connection.
Security Security Policy Detailed Customers' Security policy
Security Firewall management How to manage the firewalls and their rule base
Security e-Safe management How to manage the e-Safe's and their rule base
Security Antivirus management How to manage the Antivirus systems on the workstation level, server
level and mail systems level.
Security Virus alert What should be done when a virus was fund on the workstation level,
server level and mail systems level?
Security Password reset procedure Procedure for resetting/ unlocking end-user account
MCC Backup and restore Backup and restore activities locally and by MCC
MCC Support workflow Incident workflow and end-users escalation procedures.
Support Incident Management
Support Remote/traveling users Supporting procedure for remote/traveling users' support environment
Support Home users Supporting procedure for home users' support environment
Support Business Application - Clarify support process and procedures
Clarify
Support Business Application Support process and procedures for other business applications
Support New installations - Desktop installation procedure for office use
Desktops office
environment
Support New installations - Desktop installation procedure for development use
Desktops development
environment
Support New installations - Laptop installation procedure for office use
Laptops Office environment
Support New installations - Sales Laptop installation procedure for sales usage
Laptops
Support New installations - Unix Unix workstation installation procedure for development use
workstation
Support Software installation - Installation procedure for office environment software (e.g. MS-office,
Office environment Visio etc)
software
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TYPE PROCEDURE NAME DESCRIPTION
-------- ----------------------- ----------------------------------------------------------------------
Support Software installation - Installation procedure for development software (e.g. exceed, visual
Development environment studio etc)
software
Support Full Support procedure
Support Make it work support
procedure
Support Special support procedure
Support
Support 3rd party support How and when to ask for a 3rd party support
procedure
Support 3rd party support List all 3rd party vendors , suppliers and providers which requires for
providers list the support process and their contact information
Support Computers/ hardware
location change procedure
Support New end-users
installation request
procedure
Support Hardware upgrade
procedure
Support Software Support Support procedure of HP-OMS Software and Customer Software
Support Management escalation Process and procedure for operating necessary project key personnel
procedure
RSC RSC Class1 working RSC duties and responsibilities in Class 1 sites
procedure
RSC RSC Class2 working RSC duties and responsibilities in Class 2 sites
procedure
RSC RSC escalation
procedure
MCC MCC escalation
procedure
MCC Environment What is the current monitoring system setting and what is being monitor
monitoring procedure
MCC Monitoring system Process required for changing the monitoring and control; system
changing procedure settings
MCC Ticketing System What is the current ticketing system setting and what is the current
procedure workflow
MCC Ticketing system changing Process required for changing the monitoring and control; system
procedure settings
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TYPE PROCEDURE NAME DESCRIPTION
-------- ----------------------- ----------------------------------------------------------------------
MCC Proactive maintenance When and how to perform proactive maintenance
procedure
MCC Server installation How to install a new server
procedure
MCC Crisis management
MCC Reporting procedure SLA management and reporting procedure
MCC Shift transfer Internal MCC procedure on what should be done during MCC shifts
transfer.
MCC Environmental changes Who is allowed to make changes in the different infrastructure
environments, when and who should authorize it.
MCC Remote/traveling users Remote/traveling users' support environment
MCC Service Request Escalation
Process
MCC Software Distribution
MCC HP-OMS Software Standard
MCC Assets management
MCC Site operation How to operate Customer Sites IT infrastructure
MCC Printer installation How to install printer, when and printers maintenance activities
MCC Site folder change How and who can approve changes to the sites folder
procedure
MCC WAN support procedure WAN current configuration and support procedure
MCC WAN escalation procedure
Procurement Hardware and software How to order new hardware or software, who can order, who needs to
order procedure approve, where should the order made etc
Procurement Orders tracking procedure How and when to track hardware and software orders
Procurement
General Change Management Change management process and procedure
Procedure
General
General License management Software license management procedure
procedure
General Contracts management 3rd party contracts management
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TYPE PROCEDURE NAME DESCRIPTION
-------- ----------------------- ----------------------------------------------------------------------
General New HP-OMS support person Process and procedure for training new HP-OMS support xxxxxxx
General Adding/removing sites Process and procedure for adding or removing customer's site
End user Service Request Reporting How to report a Service Request to the Ticketing Systems and what to do
when the System is not accessible
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APPENDIX E - LIST OF THIRD PARTIES OUTSOURCERS
Israeli Office - Integrity
Israeli Office - Publicom
Italian Office - Xxxxx Xxxxxxx
35
Appendix A of Exhibit D:
Tecnomatix Sites Reports
[Consulting & Managed Services by HP] [hp invent]
TABLE OF CONTENTS
Appendix a Tecnomatix Sites Reports........................... 3
Tecnomatix Belgium - Brussels................................. 4
Tecnomatix France - Paris..................................... 4
Tecnomatix Netherlands - Enschede............................. 4
Tecnomatix France - [**]...................................... 5
Tecnomatix Germany - [**]..................................... 5
Tecnomatix Germany Xxx-xxxxxxxx............................... 5
Tecnomatix Germany - Stuttgart................................ 5
Tecnomatix Italy -[**]........................................ 5
Tecnomatix Spain Madrid....................................... 5
Tecnomatix Technologies U.k................................... 5
Tecnomatix Sweden Gothenburg.................................. 5
Tecnomatix China - [**]....................................... 5
Tecnomatix Japan - Tokyo...................................... 5
Tecnomatix Korea.............................................. 5
Tecnomatix Far East - Singapore............................... 5
Tecnomatix Usa - Xxxxxx Xxxx.................................. 5
Tecnomatix Usa - [**]......................................... 5
Tecnomatix Usa - Portsmouth & NASHUA.......................... 5
[Consulting & Managed Services by HP] [hp invent]
APPENDIX A TECNOMATIX SITES REPORTS
GENERAL
During the joint Due Diligence phase HP-OMS has gathered information regarding
the Customer's IT Environment. This information is detailed in Tecnomatix Sites
Reports below.
Since the joint Due Diligence phase, Tecnomatix IT Environment has been changed
and modified as follows:
1. Windows 2000 and Exchange 2000 migration: All Tecnomatix sites are
scheduled to be migrated to Windows 2000 Active Directory and Exchange
2000 by Q4 2003.
2. Additional changes that have been done by Tecnomatix Corporate IT.
Such changes have been incorporated into the sites information reports
below.
Based on the Due Diligence findings and Customer's requirements HP-OMS has
prepared technology gaps list. The list includes items that HP-OMS will
fix/upgrade (as detailed in Exhibit D section 2.3) in order to keep the Service
Level commitment under this agreement. The Technology gaps report is detailed in
Exhibit E Appendix D.
[XX]
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Exhibit E
Pricing and Pricing Principles
V 3.0
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
Document Information
Project Manager: Xxx Xxx
Customer Project Na'ama Halperin
Manager:
Prepared by:
Document Version No. :
Preparation Date:
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
TABLE OF CONTENTS
1. GENERAL....................................................................................... 4
2. THE TARGET PRICE AND TERMS OF PAYMENT......................................................... 5
2.1. TARGET PRICE AMOUNT........................................................................... 5
2.2. TARGET PRICE COMPONENTS....................................................................... 5
2.3. RIGHT TO USE.................................................................................. 5
2.4. QUARTERLY PAYMENTS............................................................................ 6
2.4.1. PAYMENT OF INVOICES........................................................................ 7
2.5. INVOICING METHOD.............................................................................. 8
2.5.1. QUARTERLY PAYMENT DIVIDED INTO 5 INVOICES.................................................. 8
2.5.2. CURRENCY................................................................................... 8
3. PRICE IMPLICATIONS OF CHANGES................................................................. 10
3.1. AGREED PRINCIPLES............................................................................. 10
3.2. BANK OF WORK HOURS............................................................................ 10
3.3. ADD-ON ASSETS................................................................................. 13
4. PRICING ADJUSTMENT............................................................................ 15
4.1. CURRENCY ADJUSTMENT........................................................................... 15
4.2. PAYMENTS DEDUCTION............................................................................
5. MINIMUM PAYMENT PERIOD........................................................................ 18
6. TRANSITION AND STABILIZATION FEES............................................................. 19
6.1. GAP UPGRADES PROJECTS......................................................................... 19
6.2. EXHIBIT D PROJECTS............................................................................ 20
7. TERMINATION................................................................................... 21
7.1. REFRESHED ASSETS, NEW CUSTOMER EMPLOYEE
ASSETS AND LEASED ADD ON ASSETS......... ...................................................
7.2. GENERAL SETUP COSTS...........................................................................
7.3. EARLY TERMINATION COMPENSATION................................................................ 32
8. CONTRACT EXPIRATION...........................................................................
9. TAXATION...................................................................................... 33
9.1. WITHHOLDING TAX............................................................................... 33
9.2. VAT PAYMENTS FOR EQUIPMENT OUTSIDE ISRAEL..................................................... 33
9.3. TAXATION UPON EXPIRATION OR TERMINATION OF THE CONTRACT....................................... 34
APPENDIX A: BANDWIDTH PRICING AND CAPACITY CALCULATIONS/ EXAMPLES..................................... 36
APPENDIX B: TECHNOLOGY GAPS UPGRADES PROJECTS......................................................... 45
APPENDIX C: FINANCIAL RECORDS MANAGEMENT.............................................................. 49
APPENDIX D:........................................................................................... 51
LIST OF FIVE GROUPS OF CUSTOMER SITES................................................................. 51
3
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
1. GENERAL
This Exhibit E (the "EXHIBIT") is attached to the Services Agreement for HP-OMS
Operations Services (the "SERVICES AGREEMENT") dated as _____________ by and
between HP-OMS and Customer.
Capitalized terms not otherwise defined herein shall have the meaning specified
in the Services Agreement and in the exhibits attached hereto to which this
document is attached as Exhibit E. This Exhibit sets forth the pricing and
pricing principles regarding HP-OMS's provision of the Services to Tecnomatix
("CUSTOMER").
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
2. THE TARGET PRICE AND TERMS OF PAYMENT
2.1. TARGET PRICE AMOUNT
The annual Target Price payable by Customer to HP-OMS during each [**] period of
the Term of the Services Agreement is [**] U.S Dollars.
Said annual Target Price will be based on the actual number of Customer
Employees as of the Commencement Date. Within fifteen (15) working days of the
Commencement Date Customer shall notify HP-OMS in writing of the number of
Customer Employees on the Commencement Date (the "INITIAL EMPLOYEE NUMBER"). The
annual Target Price will be adjusted according to the mechanism described in
Appendix A herein.
2.2. SERVICES COMPONENTS
The Target Price constitutes payment for the following services:
(a) Transition and Stabilization Projects (as detailed in Exhibit D)
except for Gap Upgrade projects (as detailed in Exhibit D and Exhibit
E Appendix C herein)
(b) Services, Hardware and Software delivery (as detailed in the Services
Agreement and all of its Exhibits).
5
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
2.3. RIGHT TO USE
In order to allow HP-OMS to provide the Services under the Services Agreement,
the Customer shall grant HP-OMS the right to use (the "RIGHT TO USE") the
Hardware and Software owned, leased and/or licensed by Customer, as applicable,
immediately prior to the Commencement Date (the "RIGHT TO USE ASSETS") until
their full amortization in the Customer's books. HP-OMS will pay Customer for
the said Right to Use, a one time fee which will be as follows:
(a) a sum of [**]
(b) payable within ten (10) calendar days from the Commencement Date
against one invoice to be issued in Israel by the Customer.
(c) HP-OMS shall add Israeli VAT to said amount against invoice
("HESHBONIT MASS") to be issued by Customer. The VAT amount shall be
paid by HP-OMS to Customer seven days before Customer has to pay the
VAT amount to the VAT authorities.
HP-OMS will use said Right to Use Assets solely for the provision of the
Services under the Services Agreement and its Exhibits. The Right to Use shall
terminate automatically in the event of early termination or expiration of the
Services Agreement for any reason whatsoever (including, without limitation,
termination for convenience by Customer or by HP-OMS, termination for cause by
either Customer or HP-OMS).
2.4. QUARTERLY PAYMENTS
HP-OMS will invoice Customer for the Target Price on a quarterly basis by
invoicing one-fourth (1/4) of the annual Target Price, as adjusted from time to
time in accordance with this Exhibit E (the "QUARTERLY PAYMENT"), not earlier
than on the first day of the first month of the applicable calendar quarter.
6
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
2.4.1. PAYMENT OF INVOICES
Customer shall pay the Quarterly Payment within forty-five (45) days from the
invoice date (e.g. invoice on February 28, payment due on April 15).
Customer shall add to all payments due from it to HP-OMS pursuant to
this Agreement, if made in arrears, interest at the rate of [**],
computed from the period commencing as of their payment due date
until actual payment thereof in full.
The above notwithstanding, Customer will be exempt from said
interest payments to the extent that the total number of days for
any part of the outstanding payments in arrears throughout the
Initial Term of this agreement is less than 45 calendar days and a
separate count for the Extended Term shall apply. In case however
that payment in arrears is less then 25% of the total outstanding
amount then an additional period of fourteen (14) days of non
interest accrual and payment will be added to said forty five (45)
calendar days
Examples:
o Customer exceeds for the first time the payment due date by 6 days:
no interest will be paid by Customer and the number of allowed
arrears days will be reduced by 6 days and will be set to 39 days.
o Customer exceeds the payment due date by 7 days and the number of
allowed arrears days is 4: Customer will pay interest only for 3
days (according to the interest set above).
7
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
2.5. INVOICING METHOD
2.5.1. QUARTERLY PAYMENT DIVIDED INTO 10 INVOICES
In accordance with the Services Agreement, Section 10.1 (TARGET PRICE AND BANK
OF WORK HOURS INVOICING AND PAYMENT), for each quarterly payment of the Target
Price, HP-OMS shall deliver to Customer ten (10) invoices (equal, in the
aggregate, to the applicable Quarterly Payment of the Target Price), each such
invoice in an amount equal to a fraction of the Quarterly Payment of the Target
Price, the numerator of which shall be the then current aggregate number of
Customer Employees within each of the applicable ten (10) groups of Customer
Sites listed in Appendix E herein (none of the groups being in the U.S.A), and
the denominator of which shall be the total number of Customer Employees. The
sum of all Customer Employees in the ten (10) groups shall equal the total
number of Customer Employees. Customer shall provide HP-OMS the number of
Customer Employees in each group no later than the beginning of each applicable
quarter in the Term.
2.5.2. PAYMENTS AND COLLECTION OF 10 INVOICES
It is the Customer responsibility to perform the collection of the Quarterly
Payment from all the entities to which HP-OMS has issued an invoice, in
accordance with Section 2.4.1 (PAYMENT OF INVOICES) herein. In case one or more
of the entities has failed to pay to HP-OMS said payments (fully or partly),
Customer shall pay such outstanding amounts. Delays in the Quarterly Payment for
any reason whatsoever are subject to section 2.4.1 herein.
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For the avoidance of doubt, in case any of the entities to whom HP-OMS has
issued an invoice in accordance with Section 2.5.1 fails to pay said outstanding
amount or a part of it, and Customer also fails to pay on their behalf, HP-OMS
shall notify Customer of such failure. Customer will have fourteen (14) business
days from such notice to pay any unpaid amount. Failure to pay any unpaid amount
fourteen (14) business days after such notice will be considered a breach by
Customer, subject to Sections 10.5 (ESCROW OF DISPUTED AMOUNTS) and 20.4
(TERMINATION FOR CAUSE BY HP-OMS) of the Services Agreement.
2.5.3. CURRENCY
Each of the ten (10) quarterly invoices referenced above shall be issued in
local currencies according to Appendix E herein. Invoices which will not be
issued in US Dollar will be converted from US Dollars to the local currency,
corresponding to the applicable group of Customer Sites listed in Appendix E
below, by multiplying the original US dollar amount by the Euro/US Dollar Ratio,
Yen/US Dollar Ratio, Singapore Dollar/US Dollar Ratio or the US Dollar/NIS
Exchange Rate (each as applicable and as defined in section 4.1 herein) plus an
additional twenty-five one hundredths of a percent (0.25%). The exchange
rates/ratios defined above will be those published by the Bank of Israel for the
last business day prior to the date that such invoice is issued.
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3. PRICE IMPLICATIONS OF CHANGES
3.1. AGREED PRINCIPLES
(a) The Target Price will be adjusted according to changes in the number of
Customer Employees, as specified in Appendix A to this Exhibit.
(b) "Customer Employees" has the meaning ascribed to such term in Section 1.13
of the Services Agreement .
3.2. BANK OF WORK HOURS
(a) As requested by Customer, HP-OMS will provide on-call services (outside
the General Services Window) at Bank of Work Hours rates, in accordance with
Exhibit C, Section 3.4 (ON-CALL SERVICE OUTSIDE THE GENERAL SERVICE WINDOW).
(b) HP-OMS will provide IMAC services at Bank of Work Hours rates, in
accordance with Exhibit B, Section 6.13 (INSTALL, MOVE ADD OR CHANGE)
(c) HP-OMS will provide projects, which will be provided in less ten 50 hours,
at Bank of Work Hours rates.
(d) The Customer may purchase "Bank of Work Hours", for the above, according
to the following criteria:
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o Minimum number of hours for any single purchase order to be used only in the
Israel Customer Site: five hundred (500) hours
o Minimum number of hours for any single purchase order to be used only in
sites outside of Israel: five hundred (500) hours
o Price per hour:
o For services provided in Israel:
Flat rate of $[**] per hour.
The above price does not include VAT
o For services provided outside Israel:
Flat rate of $[**]per hour.
The above price does not include VAT
(e) HP-OMS will invoice Customer immediately upon purchasing Bank of
Work Hours package at the applicable Bank of Work Hours rates.
Customer shall pay invoices within sixty (60) days from the end of
the month of the invoice date.
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(f) HP-OMS shall deliver, for Customer approval, at the end of each
month a detailed list of the actual working hours performed during
the previous month. Following Customer approval of such list HP-OMS
shall deduct the approved hours from the Bank of Work Hours balance.
(g) Customer may use the Bank of Work Hours with no time limitation.
(h) Customer may purchase Bank of Work Hours as often as required.
(i) As part of the Services Agreement and at no additional charge, HP-OMS will
provide the Customer with a one time Bank of Work Hours package as follows:
o [**] Bank of Work Hours for the Israel Customer Site
o [**] Bank of Work Hours for Customer Sites located outside of
Israel sites
3.3. MCC ON CALL SERVICES
(j) As requested by Customer, HP-OMS will provide MCC on-call services
(outside the General Services Window), in accordance with Exhibit C,
Section 3.2 (MCC SERVICE WINDOW).
(k) The Customer will pay for the on-call service [**] USD [**] per
month.
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(l) HP-OMS will charge the Customer with [**] USD [**] per hour, with a
minimum charge of 2 hours per call.
(m) HP-OMS will invoice the Customer at the end of the quarter according
to the hourly on call usage at the applicable quarter. Such invoice
is subject to Customer prior approval of a detailed list of hours
delivered.
Customer shall pay invoices within sixty (60) days from the end of the month of
the invoice date.
3.4. ADD-ON ASSETS
Without derogating from HP-OMS' obligations under the Services Agreement,
including without limitation, with respect to the Technology Refresh
Program, Customer may, in its discretion, purchase or lease new Hardware
and/or Software, as part of Purchased/Leased Add-On Assets, from HP-OMS at
a discount off of HP-OMS' then current local Internet website price list,
as follows:
o On HP-branded personal computers, laptops, software, printers, personal
digital assistants, hubs and switches, the discount will be at least [**]%
off the Internet list price.
o On HP UNIX servers, operating systems and HP data storage systems and
their components, the discount will be at least [**]% off the Internet
list price.
o On HP brand Software sold by HP the discount will be at least [**]% off
the Internet list price
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3.5. LEASING PROCESS BY 3RD PARTY
HP-OMS shall not use the services of any third party (except for HP-OMS'
Affiliates) for leasing the Refreshed Assets without the prior written approval
of Customer.
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4. PRICING ADJUSTMENT
4.1. CURRENCY ADJUSTMENT
(A) DEFINITIONS
EURO REFERENCE CURRENCY RATIO - means the Euro/US Dollar Ratio (as defined
below) as of the Commencement Date
YEN REFERENCE CURRENCY RATIO - means the Yen/US Dollar Ratio (as defined below)
as of the Commencement Date
The Euro Reference Currency Ratio and the Yen Reference Currency Ratio will be
used to calculate the quarterly currency adjustment of the Quarterly Payment.
PUBLISHED EURO RATIO - means the Euro/US Dollar Ratio as of the day prior to the
last day of the applicable quarter.
PUBLISHED YEN RATIO - means the Yen/US Dollar Ratio as of the day prior to the
last day of the applicable quarter.
EURO/US DOLLAR RATIO - means the (i) Euro/NIS Exchange Rate, divided by (ii) the
US Dollar/NIS Exchange Rate.
US DOLLAR/NIS EXCHANGE RATE - means the representative rate of exchange of the
US Dollar to the NIS as published by the Bank of Israel for the applicable date
(in case the applicable date is not a date for which the Bank of Israel
publishes an exchange rate, then the last exchange rate published by the Bank of
Israel prior to such date).
YEN/US DOLLAR RATIO - means the (i) Yen/NIS Exchange Rate, divided by (ii) the
US Dollar/NIS Exchange Rate.
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SINGAPORE DOLLAR/US DOLLAR RATIO - means the (i) Singapore Dollar/NIS Exchange
Rate, divided by (ii) the US Dollar/NIS Exchange Rate.
(b) HP-OMS shall adjust the Target Price on a quarterly basis (I.E., every
3-months) one day before the end of the applicable calendar quarter (i.e,
at March 30th) according to the currency adjustment formula described
below:
REVISED TARGET PRICE = TARGET PRICE IN US$ * 0.5 + TARGET PRICE IN US$ * 0.4 *
(RATIO BETWEEN THE EURO REFERENCE CURRENCY RATIO AND PUBLISHED EURO RATIO) +
TARGET PRICE IN US$ * 0.1* (RATIO BETWEEN THE YEN REFERENCE CURRENCY RATIO AND
PUBLISHED YEN RATIO)
BOTH EXAMPLES:
TARGET PRICE = US $7M
On the Commencement Date, the EURO REFERENCE CURRENCY RATIO is: 0.95Euro/1US$ =
0.95
On the Commencement Date, the YEN REFERENCE CURRENCY RATIO is: 120Yen/1US$ = 120
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
EXAMPLE 1:
On 30.12.03 the PUBLISHED EURO RATIO is: 0.90Euro/1US$ = 0.9
On 30.12.03 the PUBLISHED YEN RATIO is: 110Yen/1US$ = 110
THE ADJUSTED TARGET PRICE FOR Q4/03 (31.12.03) WILL BE:
(7*0.5)+(7*0.4*0.95/0.9)+(7*0.1*120/110)= US $7.21M
EXAMPLE 2:
On 29.6.04 the PUBLISHED EURO RATIO is: 1.05Euro/1US$ = 1.05
On 29.6.04 the PUBLISHED YEN RATIO is: 125Yen/1US$ = 125
THE ADJUSTED TARGET PRICE FOR Q2/04 (30.6.04) WILL BE:
(7*0.5)+(7*0.4*0.95/1.05)+( 7*0.1*120/125)= $ US6.705M
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
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5. MINIMUM PAYMENT PERIOD -
(a) During the first twelve (12) months following the Commencement Date (the
"MINIMUM PAYMENT PERIOD"), the parties agree that no reduction to the Target
Price will occur (i.e., Customer shall pay the Target Price identified in
Section 2.1 (TARGET PRICE AMOUNT) for the first twelve (12) months of the
Services Agreement, regardless of a change in number of Customer Employees).
During the six (6) months following said initial twelve (12) month period the
Target Price will be calculated according to Appendix A herein with the
following exception: in case of a decrease in the number of Customer Employees
upon such calculation, the minimum Customer Employees number (to be used for
purposes of reducing the Target Price) will be 625.
(b) During the Minimum Payment Period HP-OMS shall not reduce the agreed
Services.
(c) After the Minimum Payment Period any increase or decrease in the scope of
Services will be handled according to Appendix A to this Exhibit (except as
stated in Section 5(a) above).
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
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6. TRANSITION AND STABILIZATION FEES
6.1. GAPS UPGRADES PROJECTS.
(a) The Gaps Upgrades projects described in Appendix C below ("GAPS UPGRADES
PROJECTS") are intended, among other things, to complete technology gaps
in Customer's infrastructure, in the absence of which certain operating
activities may be affected.
(b) Such projects will address, for example, infrastructure investment in
the areas of backup, passive infrastructure, network connectivity and
Antivirus, all in accordance with Exhibit D to the Services Agreement.
(c) If immediately prior to the Commencement Date any workstation used by
Customer, which, in Customer's discretion, requires antivirus software
or lacks such anti-virus software, Customer shall be responsible for
purchasing such additional license. For the avoidance of doubt, Customer
shall not be responsible for purchasing such additional license where a
workstation has an antivirus software license which simply does not
conform to the requirements or policies of HP-OMS.
(d) Implementation of the Gaps Upgrades Projects requires that Customer pay
a one-time project charge of [**] US dollars (US $[**]) plus VAT at the
invoice date (see gaps details Appendix C), in addition to the Target
Price (the "GAPS UPGRADES PROJECT CHARGE"). The Customer will pay an
additional amount for Gap Upgrade Projects required for USDATA offices
according to a proposal that will be submitted by HP-OMS. In any case,
the cost of Gap Upgrades Projects required for USDATA offices will not
exceed [**] USD ($[**]).
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(e) HP-OMS shall invoice the Customer for the Gaps Upgrades Project Charge
in two (2) separate installments as follows: (i) 50% to be invoiced on
the Commencement Date, and (ii) 50% to be invoiced upon Customer's
Acceptance and written approval confirming finalization of all the Gaps
Upgrades Projects.
(f) Payment terms are sixty (60) days following the last day of the month in
which HP-OMS' invoices for the Gaps Upgrades Project Charge are received
by Customer.
(g) The parties acknowledge that the Gaps Upgrades Projects, when completed,
will bring Customer to a technology level sufficient to enable HP-OMS to
meet the Service Levels. Accordingly, if it is determined that
additional technology gaps exist beyond those listed in Appendix C,
which prevent HP-OMS from meeting the Service Levels, HP-OMS shall
perform such additional technology gaps projects without additional
charge to Customer.
6.2. TRANSITION AND STABILIZATION (EXHIBIT D) PROJECTS
Except with respect to the Gaps Upgrades Projects, the Target Price includes all
fees and costs in connection with all the projects to be performed by HP-OMS
during the Transition Phase, as described in Exhibit D.
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
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7. TERMINATION
In the event of termination of the Services Agreement for any reason
whatsoever HP-OMS shall transfer to Customer and Customer shall purchase from
HP-OMS the Refreshed Assets, New Customer Employees Assets, Transition Project
Assets and Leased Add-On Assets (together in this Section the "ASSETS") in
accordance with the terms detailed herein.
7.1. REFRESHED ASSETS
(a) GENERAL
HP-OMS shall transfer to Customer ownership of the Refreshed Assets in
any case of expiration or termination immediately upon payment
completion by the Customer where payment is required, as set out in this
Section 7.1.
(b) TERMINATION FOR CAUSE BY HP-OMS.
(i) Consideration
The amount to be paid by the Customer, in case of early termination of
the Services Agreement for cause by HP-OMS, in accordance with Section
20.4 (TERMINATION FOR CAUSE BY HP-OMS), for such Refreshed Assets shall
be the Net Book Value of such Refreshed Assets as of the effective date
of such termination (the "TERMINATION DATE"), calculated according to
the rules set out in Appendix D herein.
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
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(ii) Payment Terms
The Customer will pay the whole amount due for the Refreshed Assets (as
set out in subsection 7.1(b)(i) above) within sixty (60) days from such
Termination Date. If after the sixty (60) day period Customer fails to
pay all said outstanding amount, HP-OMS will so notify Customer in
writing, and Customer will have another fourteen (14) days to complete
such payment. Failure by Customer to pay such outstanding amounts shall
constitute a material breach of the Services Agreement by Customer.
(c) ALL OTHER TERMINATION EVENTS
(i) Consideration
The amount to be paid by Customer, in case of early termination of the
Services Agreement by any of the parties and for any other reason
(except for termination for cause by HP-OMS which is dealt with in
Section (b) above and expiration which is dealt with under Section (d)
below) for such Refreshed Assets, shall be the Net Book Value of such
Refreshed Assets, calculated according to the rules set in Appendix D
herein.
(ii) Payment Terms
Customer shall have the right to choose, in Customer's sole discretion,
between two payments options: (A) pay the whole sum sixty (60) days from
such Termination Date; or (B) pay to HP-OMS for such Refreshed Assets
under a Capital Lease Payment Mechanism (as defined in section 7.5). The
process for choosing between the foregoing payment options is defined in
section 7.5 herein.
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
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(d) EXPIRATION
Customer will not pay any amount for the transfer of ownership of the
Refreshed Assets, in case of expiration of the Services Agreement at the
expiration of the Initial Term or Extended Term (as the case may be).
7.2. NEW CUSTOMER EMPLOYEE ASSETS
(a) GENERAL
HP-OMS shall transfer to Customer ownership of the New Customer Employee
Assets in any case of expiration or termination immediately upon payment
completion by the Customer, as set out in this Section 7.2.
(b) TERMINATION FOR CAUSE BY HP-OMS
(i) Consideration
The amount to be paid by the Customer, in case of early termination of
the Services Agreement for cause by HP-OMS, in accordance with Section
20.4 (TERMINATION FOR CAUSE BY HP-OMS), or upon expiration of the
Services Agreement at the expiration of the Initial Term or Extended
Term (as the case may be), for such New Customer Employee Assets shall
be the Net Book Value of such New Customer Employee Assets as of such
termination or expiration date, calculated according to the rules set
out in Appendix D herein.
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(ii) Payment Terms
The Customer will pay the whole amount due for the New Customer Employee
Assets (as set out in subsection 7.2(b)(i) above) within sixty (60) days
from such termination or expiration date. If after the sixty (60) day
period Customer fails to pay all said outstanding amount, HP-OMS will so
notify Customer in writing and Customer will have another fourteen (14)
days to complete such payment. Failure by Customer to pay such
outstanding amounts shall constitute a material breach of the Services
Agreement by Customer.
(c) ALL OTHER TERMINATION EVENTS
(i) Consideration
The amount to be paid by Customer, in case of early termination of the
Services Agreement by any of the parties and for any other reason
(except for termination for cause by HP-OMS and expiration which are
dealt with in Section 7.2(b) above) for such New Customer Employee
Assets shall be the Net Book Value of such New Customer Employee Assets
as of such Termination Date, calculated according to the rules set in
Appendix D herein.
(ii) Payment Terms
Customer shall have the right to choose, in Customer's sole discretion,
between two payments options: the Customer can either (A) pay the whole
sum sixty (60) days from such Termination Date, or (B) pay HP-OMS for
such Refreshed Assets under a Capital Lease Payment Mechanism (as
defined below). The process for choosing between the foregoing payment
options is defined in section 7.5 herein.
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
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7.3. LEASED ADD-ON ASSETS
(a) GENERAL
HP-OMS shall transfer to Customer ownership of the Leased Add-on Assets
in any case of termination by any party and for any reason whatsoever or
expiration immediately upon payment completion by the Customer, as set
out in this Section 7.3.
(b) ALL TERMINATION EVENTS
(i) Consideration
The amount to be paid by Customer, in case of early termination of the
Services Agreement by any of the parties and for any other reason, for
such Leased Add-on Assets shall be the Net Book Value of such Leased
Add-on Assets as of such Termination Date, calculated according to the
rules set in Appendix D herein.
(d)
(ii) Payment Terms
Customer shall have the right choose, in Customer's sole discretion,
between two payments options: the Customer can either (A) pay the whole
sum within sixty (60) days from such Termination Date, or (B) pay HP-OMS
for such Leased Add-on Assets under a Capital Lease Payment Mechanism
(as defined below). The process for choosing between the foregoing
payment options is defined in section 7.5 herein.
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
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7.4. TRANSITION PROJECT ASSETS
(a) GENERAL
HP-OMS shall transfer to Customer ownership of the Transition Project
Assets (including but not limited to the MCC General Setup Assets) in
any case of termination or expiration immediately upon payment
completion by the Customer where payment is required, as set out in this
Section 7.4.
(b) TERMINATION FOR CAUSE BY HP-OMS AND TERMINATION FOR CONVENIENCE BY
CUSTOMER
(i) Consideration
In the event of early termination by Customer for Convenience, in
accordance with Section 20.5 (TERMINATION FOR CONVENIENCE) or early
termination by HP-OMS for cause, in accordance with Section 20.4
(TERMINATION FOR CAUSE BY HP-OMS), of the Services Agreement, the
Customer will have to pay only for the MCC General Setup Cost (out of
the Transition Project Assets), as follows:
The amount to be paid by the Customer, in such cases of early
termination of the Services Agreement, shall be the MCC General Setup
Cost as detailed in Appendix F (GENERAL MCC SETUP COST) herein, the
value of which as of such Termination Date shall be calculated according
to the rules set out in Appendix D (Financial Records Management) herein
The Customer shall not pay for the transfer of ownership of any of the
Transition Project Assets, except for the MCC General Setup Assets, as
detailed above.
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
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(ii) Payment Terms
The Customer will pay the whole amount due for the MCC General Setup
Cost (as set out in subsection 7.4(b)(i) above) within sixty (60) days
from such Termination Date. If after the sixty (60) day period Customer
fails to pay all said outstanding amount, HP-OMS will so notify Customer
in writing and Customer will have another fourteen (14) days to complete
such payment. Failure by Customer to pay such outstanding amounts shall
constitute a material breach of the Services Agreement by Customer.
(c) TERMINATION FOR FORCE MAJUER
(i) Consideration
In the event of Termination by Customer due to Force Majuer Event as
defined in Section 21.6 (FORCE MAJEUR), of the Services Agreement, the
Customer will have to pay only for fifty percent (50%) of the MCC
General Setup Cost (out of the Transition Project Assets), as follows:
The amount to be paid by the Customer, in such cases of early
termination of the Services Agreement, shall be fifty percent (50%0 of
the MCC General Setup Cost as detailed in Appendix F (GENERAL MCC SETUP
COST) herein, the value of which as of such Termination Date shall be
calculated according to the rules set out in Appendix D (Financial
Records Management) herein The Customer shall not pay for the transfer
of ownership of any of the Transition Project Assets, except for the MCC
General Setup Assets, as detailed above.
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
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(d) (ii) Payment Terms
The Customer will pay the whole amount due for the MCC General Setup
Cost (as set out in subsection 7.4(b)(i) above) within sixty (60) days
from such Termination Date. If after the sixty (60) day period Customer
fails to pay all said outstanding amount, HP-OMS will so notify Customer
in writing and Customer will have another fourteen (14) days to complete
such payment. Failure by Customer to pay such outstanding amounts shall
constitute a material breach of the Services Agreement by Customer.
(e) ALL OTHER TERMINATION EVENTS
In any case of early termination of the Services Agreement by any of the
parties and for any other reason (except for termination for cause by
HP-OMS and termination for convenience by Customer, which are dealt with
under Section 7.4(b) above), Customer will not pay any amount for the
transfer of ownership of the Transition Project Assets (including for
the MCC General Setup Assets).
(f) EXPIRATION
Customer will not pay any amount, for any of the Transition Project
Assets (including the MCC General Setup Assets) in case of expiration of
the Initial Term or the Extended Term.
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
7.5. CHOICE PROCESS
7.5.1. GENERAL
If Customer wishes to utilize the Capital Lease Payment Mechanism option
marked "(B)" in Sections 7.1 (c) (ii), 7.2 (c) (ii), or 7.3 (c) (ii)
above, HP-OMS undertakes to provide Customer with a proposal for a
Capital Lease Payment Mechanism, the terms and conditions for which will
be in accordance with those offered in similar transactions between HP
Financial Services and its other customers at the time of the Agreement
termination, within fifteen (15) working days from Customer's written
notification thereof to HP-OMS. Customer shall notify HP-OMS within
sixty (60) working days from Customer's receipt of HP-OMS' proposal as
to which payment option (under Sections 7.1 (c) (ii), 7.2 (c) (ii), or
7.3 (c) (ii) above) Customer has chosen. Option A - Lump Sum Payment
If option (A) above is chosen and after the sixty (60) day period
(referred to under Sections 7.1 (c) (ii), 7.2 (c) (ii), or 7.3 (c) (ii)
above) Customer fails to pay all said outstanding amount, HP-OMS will so
notify Customer in writing and Customer will have another fourteen (14)
days to complete such payment. Failure by Customer to pay such
outstanding amounts shall constitute a material breach of the Services
Agreement by Customer.
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
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7.5.2. OPTION B - CAPITAL LEASE
If option (B) above is chosen the rules set forth below will apply.
7.5.2.1. CAPITAL LEASE DEFINITIONS
(i) "CAPITAL LEASE PAYMENT MECHANISM" in this Schedule shall mean a
mechanism by which the ownership of the applicable Assets is transferred to
the Customer upon termination and the Customer pays to HP-OMS for such
applicable Assets the Capital Lease Payment Sum (as defined below), payment
to be made via equal quarterly or monthly installments over a lease period
which will agreed upon in the lease contract between the parties.
(ii) "CAPITAL LEASE PAYMENT SUM" shall mean the sum of the Net Book Value of
the applicable Assets on the Termination Date calculated according to the
rules set in Appendix D herein PLUS the Total Interest.
(iii) "TOTAL INTEREST" shall mean the aggregate interest for the entire
lease period. The interest per each month or quarter shall be calculated
according to the annual interest rate determined by good faith negotiation
between the Customer and HP Financial Services, but not more than the
interest rate that HP Financial Services charges for similar transactions at
the time of the termination (e.g., the factors for the determination of such
interest rate shall be based on the lease period, Customer's credit rating
and the then applicable market interest rate).
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
For the avoidance of doubt, the Customer and HP-OMS hereby agree that, as
all such Assets mentioned above in this Section 7 are a critical element of
Customer's ongoing operations, the following shall apply: During the Term or
upon termination or expiration of the Services Agreement for any reason
whatsoever, HP-OMS shall not remove any of the Assets from the Customer's
premises without the Customer's prior written approval. No dispute of any
kind or type whatsoever between HP-OMS and the Customer will affect or
derogate from the Customer's ability and right to have physical possession
of the Assets and the right to have such Assets transferred to the Customer
in accordance with the terms detailed herein above and without derogating
from the above, until such dispute is resolved in accordance with the
Services Agreement, all the Assets shall remain in the physical possession
of the Customer. HP-OMS hereby waives any right it may have under law,
contract or otherwise to take physical possession of any of the Assets due
to any reason whatsoever including due to any dispute, debts, moneys due or
any other allegations of breach or termination of the Services Agreement. In
accordance with the above principles, upon termination or expiration of the
Services Agreement for any reason whatsoever, all the Assets will be
immediately and unconditionally transferred to the Customer from HP-OMS and
HP-OMS shall not remove any of the Assets from the Customers premises
without the Customer's prior written permission to do so.
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
7.6. EARLY TERMINATION COMPENSATION
"EARLY TERMINATION COMPENSATION" is the total amount payable by the Customer to
HP-OMS in order to compensate HP-OMS for the fact that the Services Agreement
has been terminated before the expiration of the Initial Term. Customer
undertakes to pay HP-OMS, in each case of such early termination as per section
7 above, the compensation amounts in accordance with the Termination
Compensation Table below.
TERMINATION COMPENSATION TABLE (payments are in U.S Dollars):
[**]
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8. TAXATION
8.1. WITHHOLDING TAX
Any withholding tax applicable under the law of the countries to which each of
the 10 invoices will be issued according to Appendix E herein will be borne and
paid by HP-OMS. Accordingly, any withholding tax which applies to Customer and
Customer Affiliates under the local law of each such entity paying HP-OMS in
accordance with Section 2.5.1 (QUARTERLY PAYMENT DIVIDED INTO 10 INVOICES) shall
be deducted from the portion of the Quarterly Payments payable by the paying
entity, and Customer undertakes to promptly provide HP-OMS with a certificate
evidencing such payment of local withholding tax, which shall enable HP-OMS to
receive a corresponding tax credit.
8.2 VAT IN ISRAEL
With respect to any invoice between Israeli entities, value-added tax, according
to Israeli law, shall be added by Customer to the Target Price payable by the
Israeli Customer Affiliate against an Israeli VAT invoice ("HESHBONIT MAS")
issued by HP-OMS.
8.3 VAT PAYMENTS FOR ASSETS OUTSIDE ISRAEL
Value-added tax (VAT) for which Customer Affiliate will be able to receive a
refund with respect to any Assets provided by HP-OMS to a Customer Affiliate in
the various countries (except Israel) in which Customer and its Affiliates
operate shall be borne and paid by Customer. In case Customer will not succeed
to receive such refund, HP-OMS will use its best commercial efforts to receive
the refund. In case neither Customer nor HP-OMS will be able to receive such
refund, the parties will negotiate in good faith to find a solution. If the
parties fail to reach an agreement, the Customer will have the right to purchase
the assets and deduct the purchase amount from the Target Price. Such purchase
is subject to HP-OMS prior written approval of the price.
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("CUSTOMER")
8.4 CUSTOMS DUTIES AND OTHER LEVIES AND TAXES FOR ASSETS OUTSIDE ISRAEL
Customs duties and all other levies and taxes payments (excluding VAT which is
refundable to the Customer and withholding Tax) imposed on the Assets and
Services in the various countries (except for Israel) in which Customer and
Customer Affiliates operate - shall be paid by Customer. Such customs duties and
all other levies and taxes payments will be deducted from the Quarterly Payments
of the entity which made the payment. Customer undertakes to promptly provide
HP-OMS with a certificate for such Customs duties payments and all other levies
and taxes payments.
8.5 TAXATION UPON EXPIRATION OR TERMINATION OF THE SERVICES AGREEMENT
Upon termination or expiration of the Services Agreement as per section 7 of
this Exhibit:
8.5.1 If Customer elects to lease the Assets from HP-OMS (or a party
designated by HP-OMS) under the Capital Lease Payment Mechanism set out
in Section 7.5.3 (OPTION B - CAPITAL LEASE), value added tax, purchase
tax, or similar taxes or levies imposed on the lease shall be added by
Customer to the lease amount;
8.5.2 If Customer elects to purchase said Assets in a lump sum, asset out in
Section 7.5.2 (OPTION A - LUMP SUM PAYMENT), Value Added Tax, purchase
tax, or similar taxes or levies imposed on the purchase shall be added
by Customer to the purchase price set out in Section 7 above.
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("CUSTOMER")
8.5.3 In either case, whether Customer elects the Capital Lease Payment
Mechanism or the lump sum payment mechanism, and where the applicable
transaction is between Israeli entities value added tax according to
applicable law shall be added by Customer to the lease amount/price
payable by the Israeli Customer entity against Israeli VAT invoice
(HESHBONIT MAS) issued by HP-OMS.
8.5.4 In case Customer elects the lump sum payment mechanism, if withholding
tax is refundable to HP-OMS or (or to the party designated by HP-OMS to
sell or lease the Assets, as applicable) such withholding tax will be
borne and paid by HP-OMS or its affiliates.
8.5.5 In case Customer elects the Capital lease mechanism, If withholding Tax
is refundable to HP-OMS (or to the party designated by HP-OMS to lease
the Assets, as applicable), HP-OMS will do its best commercial efforts
to reduce the capital lease amount by such withholding Tax.
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("CUSTOMER")
APPENDIX A: BANDWIDTH PRICING AND CAPACITY CALCULATIONS/ EXAMPLES
This Appendix A is the sole basis for any change to the Target Price due to
changes to the number of Customer Employees:
1. BANDWIDTH PRICING
Changes to the Target Price will be calculated using the Bandwidth Pricing model
described below:
1.1. CUSTOMER EMPLOYEE INCREASE/DECREASE:
In case of changes in Customer Employees (according to the Calculation
Rules below), the following shall apply:
o Increase and decrease calculation will maintain reciprocity concept;
o The reduction in the Target Price shall not reflect reduction of
Customer Employees below 590
o Customer Employee head count will be split into 2 categories:
o Category 1: Up to (and including) the INITIAL CUSTOMER EMPLOYEE
NUMBER
o Category 2: Above the INITIAL CUSTOMER EMPLOYEE NUMBER
o The new Target Price will be calculated on the basis of the following
formula for Category 1 (up to and including) the INITIAL CUSTOMER
EMPLOYEE NUMBER):
NT = OT - (CT X 0.8) IN CASE OF DECREASE IN HEAD COUNT
NT = OT + (CT X 0.8) IN CASE OF INCREASE IN HEAD COUNT
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o The new Target Price will be calculated on the basis of the following
formula for Category 2 (above INITIAL CUSTOMER EMPLOYEE NUMBER):
NT = OT - CT IN CASE OF DECREASE IN HEAD COUNT
NT = OT + CT IN CASE OF INCREASE IN HEAD COUNT
DEFINITIONS:
NT = New Target Price for the remaining contract years/months of the
Initial Term.
OT = Original Target Price of the Service Agreement for the
remaining contract years/months of The Initial Term
o CT = Change in Target Price due to changes in Customer head count;
CT will be calculated on the basis of the following formula:
CT = ORIGINAL TARGET PRICE (SEE SECTION 3.2 ABOVE)/INITIAL EMPLOYEE
NUMBER*(NUMBER OF INCREASE OR DECREASE OF CUSTOMER HEAD COUNT)
o CALCULATION RULES:
i. Change in Customer Employee head count will be reviewed by the parties
every quarter after the Minimum Payment Period.
ii. If the number of Customer Employees increases or decreases by at least
ten (10) persons compared to the number of Customer Employees in
effect at the same time that the Target Price was last established,
then as of the beginning of the next quarter, the New Target Price
(NT) will be updated according to the change.
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("CUSTOMER")
Note: for the purposes of these Examples: the Initial Customer Employee
Number used is 700, and the NT used is 7,000.
o Example 1 (Increase of 12 Customer Employees above 700):
On 1.1.2003 Customer has 700 Employees. Between 1.1.2003 and
31.3.2003 the Customer adds 12 Employees. The calculation of the
adjustment to the Target Price will be as follows (in thousands of
US$):
NT = 7,000 + 7,000/700*12 = 7,120
The new Target Price will be effective from the beginning of the
next quarter - 1.4.2003.
o Example 2 (Decrease of less than 10 Customer Employees from the last
review):
On 1.4.2003 Customer has 712 Employees. Between 1.4.2003 and
30.6.2003 the Customer reduces the number of Customer Employees by 8
persons. The calculation of the adjustment to the Target Price will
be as follows (in thousands of US$):
NT = 7,120 (No change in Target Price as change in Customer
Employees is less than 10)
o Example 3 (Combination of Customer Employee decrease - From a number
above 700 to a new number below 700):
On 1.7.2003 Customer has 704 Customer Employees. During 1.7.2003 and
30.9.2003 the Customer reduces the number of Customer Employees by
14 persons. The calculation of the adjustment to the Target Price
will be as follows (in thousands of US$):
NT = 7,120 - 7,000/700*12 - 7,000/700*10*0.8 = 6,920
The New Target Price will be effective from the beginning of the
next quarter - 1.10.2003.
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
1.2. NEW CUSTOMER SITE:
Subject to Section 11.3 (CUSTOMER'S RIGHT TO USE CUSTOMER CONTRACTORS) of the
Services Agreement, in the event of additional Customer Sites other than those
listed in Exhibit B table 2, the following algorithm will be implemented:
o Customer may issue a Service Change Request in accordance with Exhibit
B section 8 to add a new Customer Site.
o HP-OMS will submit a proposal for Customer approval that will include
the one time setup cost for the new Customer Site(s), if needed
o The maximum price for such proposal will be [**] US Dollar
o In case the invested required for the new site setup will be
significant higher then the above maximum price the process will be
done by using Change Management process
o The change to Target Price due to changes in Customer Employee head
count will be according to Appendix A Section 1.1 above.
o Services for the new Customer Site will be according to the Services
Agreement.
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
1.3. REMOVAL OF EXISTING CUSTOMER SITE:
Subject to Section 11.3 (CUSTOMER'S RIGHT TO USE THIRD PARTIES CONTRACTORS) of
the Services Agreement, in the event of the removal of an existing Customer
Site, the following algorithm will be implemented:
o Customer may issue a Service Change Request according to Exhibit B
section 8 to remove an Existing Customer Site. Customer must notify
HP-OMS of Customer's intention to remove an Existing Customer Site at
least sixty (60) days in advance.
o HP-OMS will submit a proposal to the Customer that will include the
one-time removal cost of the Customer Site, if needed. HP-OMS's removal
costs shall not exceed US $ [**].
o HP-OMS will use the removed Assets for the sole benefit of the Customer
at other Customer Sites.
o The change to Target Price due to changes in Customer Employee head
count will be according to Appendix A Section 1.1 above.
1.4. INTRODUCING A NEW SYSTEM (ADD-ON ASSETS):
Subject to Section 11.3 (CUSTOMER'S RIGHT TO USE CUSTOMER CONTRACTORS) of the
Services Agreement, in the event that the Customer wishes to implement any
Add-On Assets (e.g., a new ERP application, technology leap etc...):
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
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o Customer may issue a Service change order according to Exhibit B
section 8 for implementation of such new system.
o The Service change order proposed by HP-OMS shall specify the change in
the Target Price and the purchase or lease price of the Add-On Asset.
1.5. INTRODUCING OR ELIMINATING A SERVICE (BEYOND THE SCOPE OF THE SERVICES):
Subject to Section 11.3 (CUSTOMER'S RIGHT TO USE CUSTOMER CONTRACTORS) of the
Services Agreement, in the event that the Customer wishes to implement a new
service outside the scope of the Services (e.g., manned phone support company
wide, Voice over IP etc...):
o Customer may issue a Service change order according to Exhibit B
section 8 for implementation or eliminating such service.
o The Service change order proposed by HP-OMS shall specify the change in
the Target Price.
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
APPENDIX B: HP-OMS'S TIME AND MATERIALS SERVICE RATES
The prices in Table 3 below will be used to calculate the cost of Service Change
Requests as described in Exhibit B, Section 8.
TABLE3: HP-OMS TIME & MATERIALS RATES
SENIOR
ENGINEER
AND UNIX
ON-SITE SYSTEM PROJECT
COST PER HOUR IN: TECHNICIAN ENGINEER ENGINEER MANAGER OTHER
---------------- ---------- -------- --------- -------- ----------
ISRAEL [**] [**] [**] [**]
ISRAELI WORKER ABROAD (*) [**] [**] [**] [**]
LOCAL IN USA WEST COAST [**] [**] [**] [**]
LOCAL IN USA EAST COAST [**] [**] [**] [**]
LOCAL IN EUROPE [**] [**] [**] [**]
LOCAL IN JAPAN [**] [**] [**] [**]
LOCAL IN SINGAPORE [**] [**] [**] [**]
LOCAL IN CHINA [**] [**] [**] [**]
LOCAL IN TAIWAN [**] [**] [**] [**]
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
SENIOR
ENGINEER
AND UNIX
ON-SITE SYSTEM PROJECT
COST PER HOUR IN: TECHNICIAN ENGINEER ENGINEER MANAGER OTHER
---------------- ---------- -------- --------- -------- ----------
LOCAL IN KOREA [**] [**] [**] [**]
ASSUMPTIONS:
o Prices are in US $ per hour
o Section 10.4 (TAXES) of the Services Agreement shall apply.
o The sole basis for adjustment of the time and materials rates set out
above shall be the currency adjustment mechanism set out in Section 4.1
(CURRENCY ADJUSTMENT) of this Exhibit E.
o *The time and materials rates for HP-OMS Personnel located in Israel, who
are requested by Customer to provide services outside of Israel, do not
include flights and hotels which will be borne by Customer according to
the applicable travel site/s.
o Prices are for general working window hours, local time not including
holidays and weekends
DESCRIPTION OF LABOR TYPE:
ON-SITE TECHNICIAN (1ST LEVEL SUPPORT):
Basic IT operational skills. Works according to documented routines and
procedures. Is able to handle typical problems that cannot be solved remotely by
the Service Desk but require local intervention (Break/Fix). Supports central
Incident Management from the Service Desk by executing specific tasks as
instructed from the Service Desk Engineer. Can carry out hardware installations
and installation/configuration of predefined software packages.
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
ENGINEER:
Medium to high IT-operational skills and training level for Microsoft based
environments. Able to work independently, self-driven, ability to act as 2nd
level IT specialist and to supervise more junior people. Can participate as
resource in projects, works on defined tasks under supervision of a Senior
Engineer or Project Manager.
SENIOR ENGINEER, UNIX SYSTEM ENGINEER PROGRAMMER:
High operational or technical IT skills - highly trained or experienced within a
defined focus area. Acts as 3rd level support and/or able to oversee complex
situations and problems. As a consultant, a Senior Engineer will deliver core
tasks within medium to large projects maintaining his own planning and timing.
Can act as an owner of defined parts of such a project.
PROJECT MANAGER:
Practical knowledge of project management tools and methodologies, skills and
experience in managing IT projects. The Project Manager drives medium to large
projects and will lead a full project team. He/she will hold overall
responsibility for deadlines and financials of the project and be measured on
project on-time and on-budget delivery.
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
APPENDIX C: TECHNOLOGY GAPS UPGRADES PROJECTS
TABLE 4: LIST OF PROJECTS
# [**] TOPIC [**] [**]
--------- ---------- -------------- ----------- ---------
1 [**] Backup [**] [**]
2 [**] Backup [**] [**]
3 [**] Backup [**] [**]
4 [**] Backup [**] [**]
5 [**] Backup [**] [**]
6 [**] Backup [**] [**]
7 [**] Backup [**] [**]
8 [**] Backup [**] [**]
9 [**] Backup [**] [**]
10 [**] Backup [**] [**]
11 [**] Backup [**] [**]
12 [**] Backup [**] [**]
13 [**] Backup [**] [**]
14 [**] Backup [**] [**]
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
# [**] TOPIC [**] [**]
--------- ---------- -------------- ----------- ---------
15 [**] Backup [**] [**]
16 [**] Computer room [**] [**]
17 [**] Computer room [**] [**]
18 [**] N/A [**] [**]
19 [**] LAN [**] [**]
20 [**] LAN [**] [**]
21 [**] LAN [**] [**]
22 [**] Passive [**] [**]
Network
23 [**] Passive [**] [**]
Network
24 [**] Printer [**] [**]
25 [**] Server Refresh [**] [**]
26 [**] Server Refresh [**] [**]
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
# [**] TOPIC [**] [**]
--------- ---------- -------------- ----------- ---------
27 [**] Server Room [**] [**]
Temperature
28 [**] UPS [**] [**]
29 [**] UPS [**] [**]
30 [**] UPS [**] [**]
31 [**] UPS [**] [**]
32 [**] UPS [**] [**]
33 [**] UPS [**] [**]
34 [**] UPS [**] [**]
35 [**] UPS [**] [**]
36 [**] UPS [**] [**]
37 [**] UPS [**] [**]
38 [**] UPS [**] [**]
39 [**] UPS [**] [**]
40 [**] UPS [**] [**]
TOTAL AMOUNT [**]
--------------------------------------------------------------------------------
TECHNOLOGY GAPS UPGRADES PROJECTS FOR USDATA OFFICES WILL BE PROVIDED BY HP-OMS
ACCORDING TO THE STANDARDS DESCRIBED IN EXHIBIT D.
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
APPENDIX D: FINANCIAL RECORDS MANAGEMENT
1. FINANCIAL RECORDS
All Assets (i.e. Leased Add-On Assets, Transition Projects Assets, Refreshed
Assets, and New Customer Employee Assets) will be recorded in HP-OMS'
financial records or it's authorized leasing partner's records according to US
Generally Acceptance Accounting Principles (US GAAP).
All assets will be recoded in separate group of accounts according to the
following groups of assets:
1. Leased Add-On Assets
2. Transition Projects Assets
3. Refreshed Assets
4. New Customer Employee Assets
2. ACCOUNTING PRINCIPLES
All Assets will be recorded in HP-OMS' financial records according to their
fair market value as of the date HP-OMS delivers (or causes to be delivered)
such assets to the applicable Customer Site.
3. DEPRECIATION METHOD; PERIOD OF DEPRECIATION
3.1. Subject to Section 3.2 of this Appendix D, all personal equipment Assets
(e.g., desktops and laptops) will be depreciated according to the straight
line method over a three (3) year period.
3.2. All servers, Unix computer equipment, computer accessories and other
active equipment (e.g. backup systems, network equipment) will be depreciated
according to the straight line method over a four (4) year period.
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
3.3. The General Setup Assets will be depreciated according to the straight
line method over a six (6) years period.
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
APPENDIX E: LIST OF 12 CUSTOMER ENTITIES TO WHOM HP-OMS WILL PROVIDE INVOICES
The following table details the Customer entities for purposes of dividing the
Quarterly Target Price into ten (10) invoices per section 2.5(INVOICING METHOD)
herein.
Mailing Currency of
Invoice # Entity Name Office Country Address Invoice
--------- ------------------- --------------- --------------- --------------- ---------------
1 TECNOMATIX LTD. Xxxxxxxxx XXXXXX 00 XXXXXXX XXX
XXXXXX
XXXXXXX, 00000
Tecnomatix Northville; MI US
Technologies Inc.
Morgan Hill CA US
Richardson Texas US
Tecnomatix Unicam Portsmouth NH US
Inc.
2 TECNOMATIX Joy en Josses FRANCE 00 XXX XXXXXX Euro
S.A.R.L. (Paris) CALMETTE
ESPACE JOUY
TECHNOLOGIE
78353
JOUY-EN-JOSAS
CEDEX
Tecnomatix A.p.S. Denmark
Tecnomatix Gutenberg Sweden
Technologies
Sweden AB
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
Mailing Currency of
Invoice # Entity Name Office Country Address Invoice
--------- ------------------- --------------- --------------- --------------- ---------------
3 NIHON TECNOMATIX Tokyo JAPAN MARUMASU Yen
K.K. KOJIMACHI
XXXX.
0 XXXXXXXXX
0-XXXXX,
XXXXXXX-XX
XXXXX
102-0083T
Seoul KOREA
4 TECNOMATIX UNICAM SINGAPORE 000 XXXXXXXXX Xxxxxxxxx
(XXXXXXXXX) XXX XX Xxxxxx
XXX. #00-00/00 XX
XXXXX
XXXXXXXXX
000000
Tecnomatix Unicam Taipei Taiwan
Taiwan Co., Ltd
Tecnomatix Shenzhen China
Technologies
(Shenzhen) Ltd
Shanghais China
5 Tecnomatix Europe Brussels Belgium Euro
S.A.
Tecnomatix Enschade The Netherlands
Machining
Automation B V
6 Tecnomatix Gmbh Nue-Xxxxxxxx Germany Euro
Stuttgart
Munich
Dueseldorf
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
Mailing Currency of
Invoice # Entity Name Office Country Address Invoice
--------- ------------------- --------------- --------------- --------------- ---------------
7 Tecnomatix Turin Italy Euro
Technologies
Italia S.r.l.
Milan Italy
8 Tecnomatix Solihull UK Euro
Technologies Ltd.
Leatherhead UK
9 Tecnomatix Unicam Lindau Germany Euro
Gmbh
Ekental Germany
10 Tecnoamtix Unicam Meylan France Euro
France S.A.
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PRICING AND PRICING PRINCIPLES FOR TECNOMATIX
("CUSTOMER")
APPENDIX F: MCC GENERAL SETUP COST
TABLE 5: MCC GENERAL SETUP COST INFORMATION
No Item Total Cost Remarks
------------- ----------------------- --------------- --------------------------
1 MCC General Setup costs
1.1 Monitoring system: Including License,
Hardware and implementation
o [**]
1.2 o [**] [**] Including License,
Hardware and implementation
1.3 [**] Including License,
Hardware and implementation
2 o [**] [**] Space, Electricity, Air
Condition, UPS etc.
TOTAL [**]
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Exhibit F
Employee Transfer Agreement
V 6.0
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Employee Transfer Agreement
DOCUMENT INFORMATION
Project Manager: Xxx Xxx
Customer Project Xxxxx Xxxxxxxx
Manager:
Prepared by: Consolidation
Document Version No: V 6.0
Preparation Date: 16.09.2003
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Employee Transfer Agreement
TABLE OF CONTENTS
DOCUMENT INFORMATION ................................................. 2
1 EMPLOYEE TRANSFER .................................................. 4
1.1 CUSTOMER'S EMPLOYEES IN GERMANY AND FRANCE ..................... 5
1.2 DUTIES AND RESPONSIBILITIES .................................... 5
1.3 LIST OF EMPLOYEES .............................................. 7
1.4 EMPLOYEE TRANSFER PROCESS ...................................... 9
1.4.1 TRAINING AND GUIDELINES .................................... 11
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Employee Transfer Agreement
1 EMPLOYEE TRANSFER
HP-OMS shall assure that the level and quality of services are maintained
throughout the transfer of employees from Tecnomatix to HP-OMS directly or to
its affiliates or authorized HP-OMS Subcontractors, as will be decided by
HP-OMS. HP-OMS will encourage employees to continue in their roles, subject to
cost and effectiveness constraints (but not less than the minimum salary offers
set out in Table 3 below), assuring that significant operational and industry
knowledge will be retained in the personnel within HP- OMS which are delivering
the Services to the Customer's.
The basic principle underlying the responsibilities of the parties with respect
to the Transitioned Employees is the following one: Customer is, and shall
remain at all times, responsible for all liabilities of any kind whatsoever
relating to the Transitioned Employees which liabilities were created during the
period prior to the Commencement Date (the "Pre-Commencement Date Period") (even
if claimed later on with respect to such Pre-Commencement Date Period
liabilities), and HP-OMS is responsible for all liabilities of any kind
whatsoever relating to the Transitioned Employees which liabilities were created
thereafter (i.e. after the Commencement Date). A party, who bore or paid, or
will pay liability due by the other party, will be reimbursed and indemnified by
that other party.
HP-OMS (or its affiliates or authorized HP-OMS Contractors) shall make offers of
employment as set out in this Exhibit F in order to retain nine (9) Customer
employees from different countries, for a period of at least six (6) months
after the Commencement Date, as follows:
o ISRAEL - Four (4) Tecnomatix employees will be engaged by HP-OMS.
o USA- Five (4) Tecnomatix employees will be engaged by HP-OMS' affiliates in
the US or by an authorized HP-OMS S ubcontractor.
o FRANCE - These Customer Sites have a total of one IT Employee, which employee
will be not be engaged by HP-OMS.
o GERMANY - These Customer Sites have a total of two It Employees - both will
not be engaged by HP-OMS.
HP-OMS (or its affiliates or authorized Subcontractors) will make offers of
employment to the Transitioned Employees in Israel and the USA after an agreed
date prior to the Commencement Date on which the parties shall announce the
outsourcing project under the Agreement to the Customer Employees (the "CUSTOMER
NOTIFICATION DATE"). The minimal salary offers by HP-OMS to the employees will
be based on the total respective employer cost per year as detailed in TABLE 3
below. For the avoidance of doubt, such offers shall contain terms and
conditions for salary and benefits which are not less favorable to the
Transitioned Employee than those terms and conditions which were in effect
immediately prior to the Commencement Date, as set out in the applicable
employment contract between Customer and such individuals. HP-OMS acknowledges
receipt of such employment contracts were provided during Due Diligence.
4
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Employee Transfer Agreement
In the Israel site, the applicable Transitioned Employees will be engaged by
HP-OMS. In the U.S.A sites, applicable Transitioned Employees will be engaged by
HP-OMS' affiliates in the US or by an authorized HP-OMS Subcontractor.
1.1 CUSTOMER'S EMPLOYEES IN GERMANY AND FRANCE
Customer's Affiliate's employees in France and Germany will not be transferred
to HP-OMS or any other HP-OMS affiliate or authorized HP-OMS Subcontractor. On
the Commencement Date, the Customer will provide notice of dismissal to the IT
employees at the Customer Sites in Germany and in France (listed in table 2
herein), with the effective date of termination to be six (6) months from the
Commencement Date. HP-OMS will pay the Customer all applicable Payments made by
Customer to such employees while still employed by Customer's Affiliate, during
the six (6) month termination notice period. The parties acknowledge that such
employees may choose to terminate their own employment with Customer's Affiliate
prior to the expiration of such termination notice period. The "Payments" shall
mean payments in all forms, including salary payments, bonuses, costs incurred
by Customer by extending any benefits, at least as detailed in TABLE 3 below.
All severance payments for these employees will be borne and paid by the
Customer.
1.2 DUTIES AND RESPONSIBILITIES
The scope of responsibilities of HP-OMS and Customer for the completion of the
employee transfer is as follows:
5
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Employee Transfer Agreement
TABLE 1: PARTIES RESPONSIBILITIED
CUSTOMER'S RESPONSIBILITIES HP-OMS'S RESPONSIBILITIES
------------------------------------- -----------------------------------
Provide information on Customer Plan the transition
employees and Customer compensation
& benefits
Send dismissal notices to applicable Make prompt offers of employment
Customer Employees to be terminated to the Transitioned Employees in
by Customer, in accordance with the accordance with this Exhibit and
respective employment contract and communicate and/or consult with
make severance payments to such Customer and applicable Customer
employees. Employees as required
Advise HP-OMS on successfully Staff the transition team as
navigating Customer's culture required
Provide access to empowered Customer Manage the employee transfer
HR resources leveling Israel and process as detailed in SECTION 1.4
Germany
6
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Employee Transfer Agreement
1.3 LIST OF EMPLOYEES
TABLE 2: EMPLOYEE TAKEOVER LIST
NAME OF
COUNTRY EMPLOYEE JOB TITLE
------------ ----------------- ----------------
ISRAEL [**] Application
Support
[**] Application
Support
[**] Application
Support
[**] Application
Support
GERMANY* [**] Technical
Support
[**] Technical
Support
FRANCE* [**] Technical
Support
USA [**] Technical
Support
[**] Technical
Support
[**] Technical
Support
[**] Web Master
[**] Technical
Support
7
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Employee Transfer Agreement
* At the Customer Sites in these countries, HP-OMS will not recruit
the listed employees.
TABLE 3: CUSTOMER EMPLOYEES COSTS (EMPLOYER COST)
TOTAL COST FOR
FIRST NAME LAST NAME EMPLOYER PER YEAR
------------ ---------- -------------------
EUROPE
------
[**]
[**] [**] [**]
[**]
[**]` [**] [**]
[**]
[**] [**] [**]
ISRAEL
------
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
USA
---
[**]
[**] [**] [**]
[**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
8
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Employee Transfer Agreement
1.4 EMPLOYEE TRANSFER PROCESS
The purpose of this phase is to get Transitioned Employees on board without
disrupting the services delivered to Customer. The phase starts with the
Customer Notification Date, including explanation of the implications to the
affected staff and ends with the staff becoming HP-OMS employees in Israel or
HP-OMS' affiliates or authorized HP-OMS Subcontractor employees in the USA.
ON THE CUSTOMER NOTIFICATION DATE THE EMPLOYEE TRANSFER PROCESS IN ISRAEL WILL
BEGIN AS FOLLOWS:
o GATHERING
On the Customer Notification Date Customer's IT manager and HP-OMS'
Project Manager will meet with all Transitioned Employees in order to
reduce the emotional aspects of change for the employees and explain
what impacts the change will have on their daily activities.
o PERSONAL MEETING
HP-OMS Project Manager will meet each Transitioned Employee separately
starting with the Sales Application Team Leader and then the team
members. The meetings will take place after the Gathering (described
above). The meeting will enable each side to present itself, its
expectations and to answer any personal questions that might concern
the employees.
o EMPLOYMENT OFFER
HP-OMS Project Manager and HP-OMS HR Manager will meet with each
Transitioned Employee and present an employment offer (in accordance
with Section 1 above), including salary and other benefits to which
he/she may be entitled. The employee will have a grace period of two
weeks following receipt of such offer to decide whether she/he would
like to accept the employment offer made by HP-OMS.
o HP-OMS might relocate some of the Transitioned Employees to
HP-OMS premises according to HP-OMS operational needs in order to
support the Services provision. Such Transitioned Employees will be
relocated upon the establishment of the MCC and its ongoing operation.
Transitioned Employees that will not be relocated will stay at the
Customer's premises in Herzelia.
9
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Employee Transfer Agreement
ON THE CUSTOMER NOTIFICATION DATE THE EMPLOYEE TRANSFER PROCESS IN THE
U.S.A WILL BEGIN AS FOLLOWS:
o INTRODUCTION
Customer's Site manager and HP-OMS' Project Manager will meet* the
Transitioned Employees at the applicable Customers Site in order to
reduce the emotional aspects of change for the employees and explain
what impacts the change will have on their daily activities. Afterward,
HP-OMS' Project Manager and HP-OMS' affiliates in the US or by an
authorized HP-OMS Subcontractor will offer employment contracts (in
accordance with SECTION 1 above), to the Transitioned Employees.
The employee will have a grace period of four () weeks following
receipt of such offer in which decide whether she/he would like to
accept HP-OMS' employment offer.
* In order to allow HP-OMS Project Manager to ensure smooth transition
and still provide vital information to the Transitioned Employees some
of the meetings might occur via phone conference and face to face
meetings will occur at a later stage.
In the event that HP-OMS, after using all commercially reasonable efforts
(in accordance with Section 1.4 above) and delivery of offers of employment
as per this Exhibit fails to convince the Transitioned Employees, or any of
them, to be HP-OMS (or HP-OMS affiliates and/or authorized Subcontractors)
employees, then HP-OMS may request the Customer to delay the dismissal of
such applicable employees from the Customer for a period of six (6) month
following the Commencement Date. The Customer may, at its sole and absolute
discretion, accept or reject HP-OMS request to delay the dismissal of
certain of such employees for a period of six (6) months following the
Commencement Date. In the event that the Customer accepts the HP-OMS
request to delay the dismissal of certain employees (the "RETAINED
EMPLOYEES"), Customer shall so notify HP-OMS in writing. HP-OMS shall make
renewed commercially reasonable efforts (in accordance with SECTION 1.4
above) during the six (6) month period following the Commencement Date (the
"INITIAL SIX MONTH PERIOD") to employ the Retained Employees. HP- OMS will
credit Customer for all Payments (defined below) made to the Retained
Employees during the Initial Six Month Period on the quarterly invoice for
the payment of the Target Price, following the quarter in which such
payment is made.
10
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Employee Transfer Agreement
"Payments" shall mean payments in all forms, including salary payments,
bonuses, and costs incurred by Customer by extending any benefits in
whatever form (i.e. total employers cost).
1.5 TRAINING AND GUIDELINES
Once the Transitioned Employees are hired by HP-OMS (or its affiliates or
authorized Subcontractors), the Transitioned Employees will become part of
HP-OMS permanent team, which will provide the Services to the Customer. At no
additional charge, HP-OMS will provide guidelines and training to the
Transitioned Employees concerning their duties and their integration into the
support provision process. The training will emphasize HP-OMS' commitment to
encourage the Transitioned Employees, to maintain their motivation and
commitment to serve the Customer's needs, while adapting to a new corporate
culture.
HP-OMS will ensure that it and its affiliates and authorized Subcontractors
provide, at no additional charge to Customer, the Transitioned Employees will
receive the same training as do all other HP-OMS employees, according to
HP-OMS's training standards and policies. These standards and policies are based
on ensuring that employees will by trained with in depth and new technology
courses that are related to their primary skill sets and are vital to their
professional progress. In addition, the Transitioned Employees will be trained
with any new technology the Customer chooses to utilize within a reasonable
period prior to its implementation or prior to any evaluation HP-OMS will
perform for the Customer related to such technology.
11
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit G
Project Staff and Key Contacts
V 6.0
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Project Staff and Key Contacts
DOCUMENT INFORMATION
Project Manager:
Customer Project
Manager:
Prepared by:
Document Version No: V 6.0
Preparation Date:
2
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Project Staff and Key Contacts
TABLE OF CONTENTS
DOCUMENT INFORMATION............................................... 2
1 HP-OMS PROJECT STAFF AND KEY CONTACTS............................ 4
1.1 HP-OMS KEY PERSONNEL:...................................... 4
1.2 HP-OMS KEY CONTACT LIST.................................... 4
2 CUSTOMER'S PROJECT STAFF AND KEY CONTACTS........................ 5
2.1 CUSTOMER'S KEY CONTACT LIST................................ 5
3
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Project Staff and Key Contacts
1 HP-OMS PROJECT STAFF AND KEY CONTACTS
1.1 HP-OMS KEY PERSONNEL:
HP-OMS Project Manager: Xxx Xxx
HP-OMS Operation Manager: Xxxx Xxxxxxx
HP-OMS MCC Manager: TBD
Service Level Manager (SLM): TBD
IT Administrative and Procurement Assistant: TBD
1.2 HP-OMS KEY CONTACT LIST
HP-OMS CEO: Xxxxxx Xxxxx
Customer Account Manager at HP: Eyal Dalit
Project Manager: Xxx Xxx
Finance Contact: Xxxxx Xxxxxxx
4
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Project Staff and Key Contacts
2 CUSTOMER'S PROJECT STAFF AND KEY CONTACTS
2.1 CUSTOMER'S KEY CONTACT LIST
Customer CFO: Xxxx Xxxxxxxxx
Customer Corporate IT Manager: Xxxxx Xxxxxxxx
Customer Corporate IT Infrastructure Manager: Xxxxx Xxxxxxxx
Customer Finance Contact at TECNOMATIX LTD: Xxxxxx Xxxxxxxxx
Customer Finance Contact at TECNOMATIX FRANCE S.A.R.L: TBD
Customer Finance Contact at TECNOMATIX TECHNOLOGIES, INC: TBD
Customer Finance Contact at NIHON TECNOMATIX K.K: TBD
Customer Finance Contact at TECNOMATIX UNICAM, INC: TBD
Unicam Division Manager: Xxxxxx Xxxx
Site Manager -
5
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit H
Customer Sites
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Customer Sites
Document Information
Project Manager:
Prepared by:
Document Version V 1.0
No.:
Preparation Date:
2
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Customer Sites
TABLE OF CONTENTS
DOCUMENT INFORMATION................................................ 2
1 CUSTOMER SITES.................................................... 4
3
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Customer Sites
1 CUSTOMER SITES
Table 1 details the Customer sites for which HP-OMS will provide the Services
under this agreement. Service provision for Customer sites marked as Remote Site
is detailed in EXHIBIT B SECTION 5.7.
TABLE1: CUSTOMER SITES
Number Country Site
------ ----------- -------------------------
1 Belgium Brussels *
2 Belgium [**]
3 China [**]
4 China [**]
0 Xxxxxxx (XXXXXX)
0 Xxxxxx Xxxx-xx-Xxxx
0 Xxxxxx [**]
8 Germany [**]
9 Germany [**]
10 Germany [**]
11 Germany [**]
00 Xxxxxxx Xxx-Xxxxxxxx (Xxxxxxxxx)
00 Xxxxxxx [**]
00 Xxxxxx Xxxxxxxxx
00 Xxxxx [**]
16 Italy Segrate (Milan)
17 Italy [**]
00 Xxxxx Xxxxx
00 Xxxxx Xxxxx
00 Xxxxxxxxxxx [**]
21 Singapore Xxxxxxxxx
00 Xxxxxx [**]
23 Taiwan Taipei
24 U.K. Leatherhead
25 U.K. [**]
26 U.S.A Xxxxxx Hill (San Jose CA)
27 U.S.A [**]
28 U.S.A Portsmouth (NH)
29 U.S.A Richmond (Dallas TX)
30 U.S.A [**]
* The above sites as defined as Remote Site.
4
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit I
HP-OMS Software and Customer Software
Categories
V 6.0
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
HP-OMS Software and Customer Software
Categories
DOCUMENT INFORMATION
Project Manager: Xxx Xxx
Customer Project Na'ama Halperin
Manager:
Prepared by:
Document Version V 6.0
No.:
Preparation Date: 26-10-2003
2
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
HP-OMS Software and Customer Software
Categories
TABLE OF CONTENTS
Document Information................................................. 2
1 SOFTWARE SUPPORT................................................... 4
3
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
HP-OMS Software and Customer Software
Categories
1 SOFTWARE SUPPORT
Table 1 details the Software support classification in relation to the Services
provided under this agreement. The table defines the duties and responsibilities
regarding the following subjects:
1. Support level by HP-OMS (Full Support/ Make It Work/ Special Support)
2. Content management responsibilities
3. The party that will pay for license upgrade
4. The party that will pay for Software maintenance and 3rd party support
contracts
All Software items (HP-OMS Software and/or Customer Software) are classified as
one of the 16 Software types as described in Table 1 below.
TABLE1: SOFTWARE SUPPORT
MAKE IT
FULL WORK SPECIAL SW
SUPPORT SUPPORT SUPPORT LICENSES MAINTENANCE
CONTENT BY HP- BY HP- BY HP- UPGRADE AND SUPPORT
# CLASSIFICATION TYPE SOFTWARE ITEM MANAGEMENT OMS OMS OMS COST COST
---- -------------- ------------- --------------- ---------- -------- -------- ------- -------------- --------------
Customer Business [**] HP Yes - - Tecnomatix Tecnomatix
1 Software Applications
Finance
Applications
(e.g. SUN, Kav Tecnomatix - Yes - Tecnomatix Tecnomatix
Customer Business Maarchot,
2 Software Applications Peach Tree)
Other Business
Applications
(e.g.Maximizer, Tecnomatix - Yes - Tecnomatix Tecnomatix
Xxxxx Xxxx,
Customer Business Replicom,
3 Software Applications salesforce)
Customer Business [**] Tecnomatix - Yes - Tecnomatix Tecnomatix
4 Software Applications
Tecnomatix
Products
(Customer Tecnomatix - - Yes Tecnomatix Tecnomatix
Customer Proprietary
5 Software Proprietarily Software)
Back office
Applications
HP-OMS- (e.g. HP Yes - - HP HP
6 Software System Exchange)
Customer
7 Software System [**] Tecnomatix - Yes - Tecnomatix Tecnomatix
4
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
HP-OMS Software and Customer Software
Categories
MAKE IT
FULL WORK SPECIAL SW
SUPPORT SUPPORT SUPPORT LICENSES MAINTENANCE
CONTENT BY HP- BY HP- BY HP- UPGRADE AND SUPPORT
# CLASSIFICATION TYPE SOFTWARE ITEM MANAGEMENT OMS OMS OMS COST COST
---- -------------- ------------- --------------- ---------- -------- -------- ------- -------------- --------------
Customer System R&D Tools Tecnomatix Yes - - HP HP
8 Software Microsoft
Customer System [**] Tecnomatix - Yes - Tecnomatix Tecnomatix
9 Software
HP-OMS- System Desktop
Software Software HP Yes - - HP HP
10 Microsoft
HP-OMS- System Desktop
Software Software Non HP Yes - - HP HP
11 Microsoft
HP-OMS- System Infrastructure HP Yes - - HP HP
12 Software
HP-OMS- System Operating HP Yes - - HP HP
13 Software Systems
HP-OMS- System [**] N/A - - Yes HP HP
14 Software
HP-OMS- Other [**] According According to
Software to the the
classification classification
15 N/A - - Yes of the item of the item
Customer Other Personal Tecnomatix - - Yes N/A N/A
16 Software Software
Customer Other Software For
Software Supporting
Personal
17 Hardware Tecnomatix - - Yes N/A N/A
5
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit J
Customer Competitors
V 6.0
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Customer Competitors
Document Information
HP Project
Manager : Xxx Xxx
Customer Project
Manager : Na'ama Halperin
Prepared by: Xxxx Xxxxxxx
Document Version
No: V 6.0
Preparation Date: 16/09/03
2
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Customer Competitors
INDEX
DOCUMENT INFORMATION........................................ 1
DOCUMENT INFORMATION........................................ 2
INDEX....................................................... 3
1 CUSTOMER COMPETITORS................................... 4
3
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Customer Competitors
1 CUSTOMER COMPETITORS
Table 1 consis a list of companies compete with Customer in the same industry
in which Customer operates, by notice in writing to HP-OMS.
TABLE 1: CUSTOMER'S COMPETITORS
COMPANY NAME COMMENTS
------------- ---------
Dassault Systemes Including EAI-DELTA GmbH
and its subsidiaries and affiliates
Internation Business Machines Corp.
Electronic Data Systems Corporation Including Unigraphics Solutions,
and its subsidiaries and affiliates Inc.
Polyplan Technologies, Inc.
SAP AG
Matrologic Group SA
Datasweep, Inc.
Aegis Industrial Software Corporation
Valore Computerized Systems Ltd.
4
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
EXHIBIT K
GUARANTEE OF TECNOMATIX TECHNOLOGIES LTD.
Tecnomatix Technologies Ltd (the "GUARANTOR") hereby guarantees HP-OMS
(Israel) Ltd. ("HP-OMS") the full and prompt performance of each and any of the
undertakings of Tecnomatix Ltd (the "CUSTOMER") under the Services Agreement For
HP-OMS Operations Services between Tecnomatix Ltd. and HP-OMS (Israel) Ltd.,
dated October 30, 2003. Guarantor hereby waives its right pursuant to clause
8(1) of the Israeli Law of Guarantee 1967, and expresses its consent that HP-OMS
will have the right to enforce the Guarantor's guarantee, without having first
to demand from the Customer to fulfill its undertakings, in whole or in part,
and without having first to initiate legal proceedings against Customer.
TECNOMATIX TECHNOLOGIES LTD
By: /s/ Harel Beit-On
Name: Harel Beit-On
Title: Chairman & CEO
Date: 30.10.2003
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: General Counsel
Date: 30.10.2003
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
EXHIBIT L
GUARANTEE OF HEWLETT-PACKARD ISRAEL LTD.
Hewlett-Packard Israel Ltd. (the "Guarantor") hereby guarantees
Technologies Ltd. (the Customer") the full and prompt performance of each and
any of the undertakings of HP-OMS (Israel) Ltd. (the "HP-OMS") under the
Services Agreement For HP-OMS Operations Services between Customer and HP-OMS,
dated October 30, 2003. Guarantor hereby waives its right pursuant to clause
8(1) of the Israeli Law of Guarantee 1967, and expresses its consent that
Customer will have the right to enforce the Guarantor's guarantee, without
having first to demand from the Customer to fulfill its undertakings, in whole
or in part, and without having first to initiate legal proceedings against
HP-OMS.
HEWLETT-PACKARD ISRAEL LTD.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: HPS Country Manager
Date: 30.10.2003
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: HP-OMS General Manager
Date: 30.10.2003
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Exhibit M
Termination Assistance Services Level Credits
V 6.0
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Termination Assistance Services
DOCUMENT INFORMATION
HP Project
Manager: Xxx Xxx
Customer Project
Manager: Na'ama Halperin
Prepared by:
Document Version
No: V 6.0
Preparation Date: 16/09/03
2
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Termination Assistance Services
INDEX
DOCUMENT INFORMATION................................................. 1
DOCUMENT INFORMATION................................................. 2
INDEX................................................................ 3
1 DEFINITIONS..................................................... 4
2 GENERAL......................................................... 5
3 PROPERTY AND DATA............................................... 6
4 TRANSITION PLAN................................................. 7
5 OPERATIONAL TRANSITION.......................................... 9
3
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Termination Assistance Services
1 DEFINITIONS
Unless otherwise defined herein, capitalized terms used in this Exhibit
shall have the meaning ascribed to them in the Agreement and, if not defined
therein, in the other Exhibits attached to this Agreement.
4
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Termination Assistance Services
2 GENERAL
This Exhibit sets out HP-OMS' obligations to provide Termination Assistance
Services in accordance with Section [20.7a] of the Agreement.
The obligations set out in this Exhibit are in addition to those set out in
Section [20.7a] of the Agreement.
Depending on the extent of the efforts required to provide the assistance
described herein, HP-OMS may charge the Customer for such assistance on a time
and materials basis per the Bank Hours' rates specified in Exhibit E, Section3.2
(BANK OF WORK HOURS).
5
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Termination Assistance Services
3 PROPERTY AND DATA
HP-OMS must provide reasonable notice to the Customer before removing any
software, hardware or documentation from the Customer Site or any other location
from which Services are provided. If the property is owned by the Customer, such
property must not be removed without its prior written consent.
HP-OMS will provide the Customer with such data as may be reasonably required
regarding the Services, resources used, performance and current projects.
6
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Termination Assistance Services
4 TRANSITION PLAN
The Transition Plan to be developed and implemented by HP-OMS and the
Customer according to clause [20.7a] of the Agreement must include the
following:
Knowledge Transfer
HP-OMS, or its Approved Subcontractors [to be defined], will provide
knowledge transfer regarding the Services. This shall include:
o Providing the Customer with information regarding the Services that is
necessary to implement the Transition Plan, and providing such
information regarding the Services as necessary for the Customer to
assume responsibility for continued performance of the Services in an
orderly manner so as to minimize disruption to the operations of the
Customer, including (i) relevant documentation; (ii) schedules and work
procedures;
o Providing reasonable training to the Customer's personnel in the
performance of those Services that are to be transferred;
o Permitting the Customer to assign the Customer's personnel to work with
personnel of HP-OMS, or its Approved Subcontractors,
to facilitate knowledge transfer from HP-OMS to the Customer;
o Explaining standards and procedures of MCC and RSC and Site(s)
documentation to the Customer's operations staff;
o Providing a list of all Software running at the commencement of the
transition period; and
o Providing details of the status of all projects current or proposed as
at the commencement of the transition period.
TRANSFER OF RESOURCES
HP-OMS shall provide all reasonable assistance required for the transfer of
resources, including software, third party contracts, at no charge to HP-OMS,
and all Equipment [to be defined], and other assets used by HP-OMS to perform
the Services for the Customer (the "Resources"). This shall include:
o Making any equipment owned or leased by HP-OMS that is substantially
dedicated to the performance of the Services available in the manner
set out in Section [20.7a];
o Providing asset listings, including listings of hardware and software
by Site, which will detail the purchase date of each
asset, depreciation method, years of depreciation, book value,
accumulated depreciation and net book value;
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o Providing contract listing by Site which will detail the name of the
service provider, the type of services provided and the price of the
services;
o Assigning contracts for any third party services that are utilized by
HP-OMS solely to perform the Services, at the option of the Customer;
o Licensing or assigning rights to use the Software in accordance with
Section [20.7a] of the Agreement;
o Obtaining Try to obtain any third party consents for the transfer of
the Equipment, Software and third party service contracts;
o Transferring billing, executing legal documents, and performing other
functions necessary to effect the assignment of third party service
contracts, to the extent commercially reasonable; and
o Preparing bills of sale or taking reasonable actions necessary to affect
the transfer of ownership of Resources. All as specified in Section
[20.7a] of the Agreement.
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5 OPERATIONAL TRANSITION
HP-OMS shall perform all activities required to effect a smooth transition of
operations responsibilities for the Services. This shall include:
o Providing to the Customer, to the extent available to HP-OMS and as
directed by the Customer, data, files, databases and sources with
respect to the HP-OMS Software (including third party software if
permitted by the applicable licences), along with run documentation and
job control listings, and other similar information necessary for the
Customer to run the Software for the Customer's benefit;
o Delivering then-existing systems support profiles, enhancement logs,
problem tracking/resolution documentation, function point data,
performance data, and status reports associated with applications
support;
o Providing work volumes, staffing requirements, actual service levels,
and information on historical performance for each Equipment component,
system or application over the preceding twelve (12) months;
o Providing copies of all the Customer Data and system files on electronic
media as specified by the Customer;
o Identifying work and projects expected to be in progress as of the
effective date of termination or expiration. With respect to such work,
document current status, stabilize for continuity during transition, and
provide any required training to achieve transfer of responsibility
without loss of momentum or adverse impact on any work and project
time tables;
o Providing pre-transition services, including:
o Providing the Customer with all the procedures and forms maintained,
including the sites documentations and contact lists;
o Providing the Customer with the current backup and restore systems and
equipment as well as storage media;
o Providing the Customer with the documentation used by HP-OMS to provide
the Services, including technical documentation, in hard-copy or
electronic media as indicated by the Customer;
o Providing the Customer with any problem logs the Customer does not
already have, reporting back at least two (2) years prior to the
termination date (or at least back to the Commencement Date of the
Agreement if the termination date is less than two (2) years from such
commencement);
o Identifying, recording and providing to the Customer control release
levels for system software;
o Providing and coordinating assistance in notifying HP-OMS' outside
vendors of the procedures to be followed during the turnover phase;
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o Reviewing all existing test, data and production software environments
with the Customer's operations staff;
o Providing reasonable assistance to the Customer in establishing or
transferring naming conventions;
o Delivering non-proprietary tools and databases used to provide the
Services with the necessary documentation, including those for tracking
projects and service information requests, and those used for knowledge
transfer;
o Generating and providing a tape and computer listing of the source code
for the HP-OMS Software in a form reasonably requested by the Customer.
Delivering the source code, technical specifications and materials to
the Customer. At the Customer's request, deliver job streams and
associated job control language and appropriate run documentation to
the Customer, if applicable;
o Assist the Customer in making arrangements for the physical
de-installation, transportation, and relocation of the Hardware and
physical assets;
o Providing documentation and diagrams for the, data, IP addressing
schema, managed device thresholds and configurations associated with
the provision of the Services; and
o Providing interim tapes of the Customer Data and off-site storage of
production data, as reasonably requested;
o PROVIDING OTHER SERVICES DURING THE TRANSITION, INCLUDING:
o Copying and delivering to the Customer all relevant requested
data files;
o In conjunction with the Customer, conducting a rehearsal of the
migration prior to cut-over as scheduled by the Customer;
o Delivering the content listings of all relevant requested data
files and print-outs of control file information to the
Customer;
o Providing reasonable assistance to the Customer in loading the
data files;
o Providing reasonable assistance to the Customer with the
movement of data from the then existing databases to the new
environment;
o Providing an image copy of each operating system environment in
dump/restore mode;
o Providing reasonable assistance to the Customer with the
turnover of all, data, and other communications networks and
systems; and
o Providing reasonable assistance to the Customer with the
turnover of all storage systems; and
o Providing reasonable assistance to the Customer with the
turnover of all Security systems; and
o Continuity of operations through the termination date.
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Exhibit N
Governance
V 6.0
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Governance
DOCUMENT INFORMATION
HP Project
Manager: Xxx Xxx
Customer Project
Manager: Na'ama Halperin
Prepared by:
Document Version
No: V 6.0
Preparation Date: 16/09/03
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INDEX
DOCUMENT INFORMATION 1
DOCUMENT INFORMATION 2
INDEX 3
1 APPOINTMENTS 4
1.1 EXECUTIVE PRIME 4
1.2 OPERATIONAL PRIME 5
1.3 TASK/PROJECT OPERATIONS CO-ORDINATORS 6
1.4 BUSINESS SUPPORT AND RELATIONSHIP CO-ORDINATORS 7
2 COMMITTEES 7
2.1 JOINT OPERATIONS REVIEW COMMITTEE 7
2.2 JOINT EXECUTIVE REVIEW COMMITTEE 8
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1 APPOINTMENTS
Concurrently with the execution of this Agreement, the Parties agree to appoint
in each of their own organization the following:
1.1 EXECUTIVE PRIME
The Executive Prime of each Party shall act, on behalf of said Party, as the
overall business owner of the relationship between the Customer and HP-OMS (the
"Relationship") for the purpose of the successful fulfillment of this Agreement.
Each Executive Prime shall have the following responsibilities:
i- Executive point of contact between the Parties on high level major
matters in connection with the Relationship and the Services provided
hereunder;
ii- To oversee overall performance and progress of HP-OMS, including without
limitation HP-OMS's progress with respect to the service levels set forth
in EXHIBIT C to the Agreement;
iii- To co-chair joint Executive Review Committee meeting;
iv- To provide strategic guidance and direction with resepct to the
objectives stated in the Agreement, and to identify new objectives, as
shall be agreed upon by both Parties;.
v- To generate a quarterly status and progress report.
Executive Prime for Xxxx Customer is: the Chief Information Financial Officer
(Xxxx Xxxxxxxxx).
Executive Prime for HP-OMS is: the Chief Executive Officer (Xxxxxx Xxxxx).
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1.2 OPERATIONAL PRIME
The Operational Prime of each Party shall act as overall business Co-ordinator
for the purposes of this Agreement (the "Operational Prime"). The Operational
Prime shall have the following responsibilities:
i- Overall prime for the management of the Relationship;
ii- To serve as a single point of contact between the Parties on significant
matters in connection with the Relationship and the Services provided
hereunder, which are not handled by the Task/Project Operations Co-
ordinators or Business Support Relationship Co-ordinators;
iii- To address and resolve material issues and concerns with respect to the
Relationship and the Services provided hereunder;
iv- To track and monitor progress and performance to ensure the service
levels as set forth in Exhibit C are met;
v- To ensure the obligations of HP-OMS and the Customer in connection with
this Agreement are being met;
vi- To co-ordinate any improvement processes and business changes in respect
of the Services;
vii- To co-chair joint committees and regular meetings;
viii- To ensure the progress of any task and/or Project under the Agreement and
the designation of a Task/Project Co-ordinator to govern such Project, on
behalf of each Party;
ix- To generate monthly status and progress report to be submitted to his/her
Executive Prime and distributed in accordance with a mutually agreed upon
distribution list;
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x- Specifically, the HP-OMS Operational Prime will lead the Customer
outsourcing management team. The composition of the outsourcing
management team will be at Xxxx'x HP-OMS's discretion. Xxxx will ensure
major user representatives and groups are duly represented.
Operational Prime for Customer is: Worldwide IT Director (Xxxxx Xxxxxxxx) Senior
Director.
Operational Prime for HP-OMS is: HP-OMS Project Manager (Xxx Xxx).
1.3 TASK/PROJECT OPERATIONS CO-ORDINATORS
Number and specific assignment responsibilities of Task/Project Operations
Coordinators will be determined by each Party's Operational Prime to meet their
own requirements related to a specific task or Project, as the case may be. The
Task/Project Operations Co-ordinators will have the following responsibilities:
i- To serve as day to day contact to address operational issues arising from
and related to the task/Project he/she is assigned to;
ii- To address and resolve issues and concerns with respect to the relevant
task or Project. Material issues and concerns shall be escalated to the
Operational Primes;
iii- To co-ordinate and facilitate the implementation of the Agreement in
daily operations activities;
iv- To participate in the monthly Joint Operations Review Committee when
issues related to the task or Project to which he/she is assigned to are
being discussed;
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v- To generate a weekly status and progress report to be delivered to
his/her Operational Prime and distributed in accordance with a mutually
agreed upon distribution list.
1.4 BUSINESS SUPPORT AND RELATIONSHIP CO-ORDINATORS
Each Party shall designate a permanent Business Support and Relationship
Coordinator for the on-going support of the Operational Primes.
In this support role for his/her Operational Prime, each Business Support and
Relationship Co-ordinator shall have the following responsibilities:
i- Serve as a single point of contact between the Parties on commercial or
contractual matters and in that capacity, coordinate the work between any
designated experts in such fields as legal, regulatory, finance or tax
matters;
ii- Overall professional support with respect to all matters arising from the
Agreement governing the Relationship;
iii- Address and resolve commercial or contractually related issues and
concerns; including any proposed amendments to any of the terms of this
Agreement or the Exhibits.
Business Support and Relationship Co-ordinator for HP-OMS is: Account Manager
(Eyal Dalit).
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2 COMMITTEES
2.1 JOINT OPERATIONS REVIEW COMMITTEE
The Customer and HP-OMS agree to create a Joint Operations Review Committee,
which will convene on a monthly basis, consisting of the Parties' Operational
Primes and as may be required the Business Support and Relationship
Co-ordinators, the Task/Project Co-ordinators, user representatives and any
other managers of either Party who may be invited by the Parties as mutually
agreed. This committee will:
i- Preview on a monthly basis overall status of the Relationship, status and
progress on the various aspects of the implementation of the Agreement,
issues related to delivery of the Services, service level measurement and
performance, Road Map implementation (including milestones and
timeframes), Projects initiated by the Parties and aspects related to the
implementation of objectives, measurements, accomplishments, going
forward plans and priorities issues;
ii- Discuss and approve improvements and changes to the processes and
procedures; and
iii- Address such other matters as may be delegated to them under this
Agreement.
Each party may request, by prior written notice, an additional meeting of the
Joint Operations Review Committee in order to address specific outstanding and
material issues related to the Relationship, which are within the scope of
responsibility of the Joint Operations Review Committee.
All issues that cannot be resolved by the Joint Operations Review Committee will
be escalated to the Joint Executive Review Committee.
2.2 JOINT EXECUTIVE REVIEW COMMITTEE
The Customer and HP-OMS agree to create a Joint Executive Review Committee
consisting at least of the Parties' Executive Primes and Operational Primes as
well as any other additional Executives of either Parties' organization that the
committee decides should attend. This committee will:
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i- Issue a quarterly status and progessprogress report and review, on a
quarterly basis, performance, objectives and measurements;
ii- Discuss major changes to the Relationship and objectives, subject to the
prior written approval of both Parties;
iii- Address such other matters as may be delegated to them under this
Agreement or escalated by the Joint Operations Review Committee.
Each Party may request, by prior written notice, an additional meeting of the
Joint Operations Review Committee in order to address specific outstanding and
material issues related to the Relationship, which are within the scope of
responsibility of the Joint Operations Review Committee.
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