EXHIBIT 10.26
SERVICES AGREEMENT
This Services Agreement (this "AGREEMENT") dated as of March 7, 2000 is
entered into between Banyan Systems Incorporated, a Massachusetts corporation
("BANYAN"), and Switchboard Incorporated a Delaware corporation ("SWITCHBOARD"
and together with Banyan, the "PARTIES").
Recitals:
A. On the date hereof, Switchboard has consummated an initial public
offering of its common stock (the "OFFERING").
B. Prior to the Offering, Switchboard was a majority-owned subsidiary
of Banyan. As a result of Switchboard's issuance of shares of its common stock
in the Offering, Switchboard no longer is a majority-owned subsidiary of Banyan.
C. Each of the Parties is a party to that certain Services Agreement
dated November 1, 1996, as amended (the "PRIOR SERVICES AGREEMENT"), pursuant to
which Banyan provides specified services to Switchboard.
D. Each of the Parties desires to terminate the Prior Services
Agreement and to enter into this Agreement with respect to the services to be
provided to Switchboard by Banyan now that Switchboard no longer is a
majority-owned subsidiary of Banyan.
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained in this Agreement, the Parties hereby agree as follows:
1. SERVICES
1.1. Services to be Made Available. In accordance with the terms and
provisions of this Agreement, Banyan agrees to perform for Switchboard the
services described in the Schedule hereto (collectively, the "SERVICES") in the
amounts and to the extent specified with respect to each such Service in the
Schedule.
1.2. Fees for Services. Switchboard agrees to pay to Banyan a fee for
each of the Services as specified in the Schedule hereto.
Not more often than once per fiscal month, Banyan shall forward to
Switchboard invoices for the Services listing the Services provided hereunder
and listing the fees for such Services, setting forth in reasonable detail the
calculation of the amounts charged. Invoices for Services provided for partial
fiscal months and relating to Services for which the fees are to be calculated
on a monthly basis shall be based upon (a) the number of business days during
which services were provided, divided by (b) the number of business days in such
fiscal month. Within fifteen days of receiving an invoice, Switchboard shall pay
to Banyan the amount invoiced unless it
shall in good faith dispute the types and/or amounts of Services set forth on
such invoice as having been provided during the period covered by such invoice.
In the event of such good faith dispute, Switchboard shall pay the fees set
forth on such invoice for all Services the amounts of which are not in dispute
and the Parties agree to use their respective best efforts to resolve such
dispute within ten days. If such dispute is not resolved within ten days, either
Party may seek binding arbitration of such dispute in accordance with the
provisions of Section 4.8 of this Agreement. With respect to any task that
Banyan agrees to perform hereunder, Banyan shall, at Switchboard's request,
inform Switchboard of the person(s) who are expected to perform such tasks, such
persons' hourly rates applicable thereto and an estimate of the time such tasks
will require to complete.
1.3. Term of Agreement. This Agreement is effective as of the date
hereof and shall terminate with respect to each Service on the date specified
for such Service in the Schedule hereto.
1.4. Timely Performance and Cooperation. Banyan shall use all
reasonable efforts in the timely performance of the Services and Switchboard
shall use all reasonable efforts to cooperate with Banyan in connection with the
provision of the Services.
2. REPRESENTATIONS AND WARRANTIES
As an inducement to enter into this Agreement, each Party represents to
and agrees with the other that:
(a) it is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power to own, lease and
operate its properties, to carry on its business as presently conducted
and to carry out the transactions contemplated by this Agreement;
(b) it has duly and validly taken all corporate action
necessary to authorize the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby;
and
(c) this Agreement has been duly executed and delivered by it
and constitutes its legal, valid and binding obligation enforceable
against it in accordance with its terms, except as such enforceability
may be affected by laws of general application relating to bankruptcy,
insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable remedies.
3. OTHER AGREEMENTS
Contemporaneously with the execution of this Agreement, and
specifically in the case of the Registration Rights Agreement (as defined
below), as consideration, in part, for entering into this Agreement, the Parties
shall enter into the following agreements:
(a) a sublease in the form appended hereto as Annex A; and
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(b) a registration rights agreement in the form appended
hereto as Annex B (the "Registration Rights Agreement").
4. OTHER TERMS AND PROVISIONS
4.1. Independent Contractor Status. Banyan shall perform all services
under this Agreement as an "independent contractor" and not as an agent of
Switchboard. Banyan is not authorized to assume or create any obligation or
responsibility, express or implied, on behalf of, or in the name of Switchboard
or to bind Switchboard in any manner.
4.2. Limitation of Liability and Reimbursement. Neither Banyan, nor any
of its officers, employees, agents or affiliates (including its attorneys and
accountants), shall in any event be liable for any damages, including but not
limited to loss of profits or revenue, which arise out of Banyan's (or any such
officer's, employee's, agent's or affiliate's) performance or failure to perform
any of its obligations under this Agreement, other than those damages caused by
Banyan's (or such person's) willful misconduct or gross negligence. Switchboard
hereby agrees to indemnify Banyan and hold Banyan harmless for all costs
(including attorneys' fees) and damages incurred by Banyan to third parties as a
result of the provision of Banyan pursuant to this Agreement of the Services,
other than costs or damages incurred by Banyan as a result of its willful
misconduct or gross negligence.
4.3. Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated. It is hereby stipulated and
declared to be the intention of the Parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such which may be hereafter declared invalid, void or unenforceable, and the
Parties shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction.
4.4. Assignment. Except by operation of law or in connection with the
sale of all or substantially all the business or assets of a Party, this
Agreement shall not be assignable, in whole or in part, directly or indirectly,
by either Party without the prior written consent of the other, and any attempt
to assign any rights or obligations arising under this Agreement without such
consent shall be void; provided, that, the provisions of this Agreement shall be
binding upon, inure to the benefit of and be enforceable by Banyan and
Switchboard and their respective successors and permitted assigns.
4.5. Further Assurance. Subject to the provisions hereof, each of
Banyan and Switchboard shall make, execute, acknowledge and deliver such other
agreements, documents or instruments and take or cause to be taken such other
actions as may be reasonably required in order to effectuate the purposes of
this Agreement and to consummate the transactions contemplated hereby. Subject
to the provisions hereof, each of Banyan and Switchboard shall, in connection
with entering into this Agreement, performing its obligations hereunder and
taking any and all actions relating hereto, comply with all applicable laws,
regulations, orders and decrees, obtain all required consents and approvals and
make all required filings with any
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governmental agency, or other regulatory or administrative agency, commission or
similar authority and promptly provide the other with all such information as
the other may reasonably request in order to be able to comply with the
provisions of this sentence.
4.6. Parties in Interest. Nothing in this Agreement expressed or
implied is intended or shall be construed to confer any right or benefit upon
any person or entity other than Banyan and Switchboard and their respective
successors and permitted assigns.
4.7. Waivers, Etc. No failure or delay on the part of Banyan or
Switchboard in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No modification or waiver of any provision of this Agreement nor
consent to any departure by Banyan or Switchboard therefrom shall in any event
be effective unless the same shall be in writing and signed by the Party against
whom such modification or waiver is asserted and then such modification or
waiver shall be effective only in the specific instance and for the purpose for
which given.
4.8. Arbitration. Each Party may refer any dispute arising under this
Agreement or the matters contemplated hereby (including without limitation the
fees for Services provided hereunder) to binding arbitration in the Commonwealth
of Massachusetts under the commercial arbitration rules of the American
Arbitration Association before a panel of three arbitrators, one selected by
each Party and the third selected by the other two arbitrators or, if they are
unable to agree, by the American Arbitration Association. Any award made in such
arbitration may be enforced in any court of competent jurisdiction.
4.9. Changes of Law. If, due to any change in applicable law or
regulations or the interpretation thereof by any court of law or other governing
body having jurisdiction subsequent to the date of this Agreement, performance
of any provision of this Agreement or any transaction contemplated thereby shall
become impracticable or impossible, the Parties shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such provision.
4.10. Confidentiality. Subject to any contrary requirement of law and
the right of each Party to enforce its rights hereunder in any legal action,
each Party shall keep strictly confidential and shall cause its employees and
agent to keep strictly confidential any information which it or any of its
agents or employees may acquire pursuant to, or the course of performing its
obligations under, any provision of this Agreement; provided, that, such
obligation to maintain confidentiality shall not apply to information which (a)
at the time of disclosure was in the public domain not as a result of acts by
the receiving Party, (b) was in the possession of the receiving Party at the
time of disclosure, or (c) was received by the receiving Party from a third
party that does not require the receiving Party to maintain the confidentiality
of such information, and that is not in violation of any contractual, legal or
fiduciary obligation to the disclosing party with respect to such information.
4.11. Entire Agreement. Notwithstanding the provisions of Section 4 of
the Prior Services Agreement, the Prior Services Agreement is hereby amended so
as to be terminated in
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its entirety. This Agreement contains the entire understanding of the Parties
with respect to the provision of Services from Banyan to Switchboard.
4.12. Titles and Headings. Titles and headings to sections herein are
inserted for the convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
4.13. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original and all of which together shall
be deemed to be one and the same instrument.
4.14. Notices. Any notice, request, demand, claim, or other
communication hereunder shall be in writing and shall be delivered by registered
or certified mail, return receipt requested, postage prepaid, and addressed to
the intended recipient as set forth below, and shall be deemed duly given on the
date which is three days after the date such notice, request, demand, claim, or
other communication is sent:
Switchboard at: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Banyan at: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Notwithstanding the foregoing, any Party may send any notice, request, demand,
claim, or other communication hereunder to the intended recipient at the address
set forth above using any other means (including personal delivery, expedited
courier, messenger service, telecopy, telex, ordinary mail, or electronic mail),
but no such notice, request, demand, claim, or other communication shall be
deemed to have been duly given unless and until it is actually received by the
intended recipient. Any Party may change the address to which notices, requests,
demands, claims, and other communications hereunder are to be delivered by
giving the other Party notice in the manner herein set forth.
4.15. Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic substantive laws of the Commonwealth of
Massachusetts without regard to any choice or conflict of law rule or provision
that would result in the application of the domestic substantive laws of any
other jurisdiction.
* * * * *
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed as of the day and year first above written.
BANYAN SYSTEMS INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President and Chief Financial Officer
SWITCHBOARD INCORPORATED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and Chief Financial Officer
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SCHEDULE TO SERVICES AGREEMENT
BETWEEN BANYAN SYSTEMS INCORPORATED
AND SWITCHBOARD INCORPORATED
SCOPE
This service agreement will cover the following areas:
-- Physical layer infrastructure (hubs, routers, switches,
firewalls, cabling plant and shared corporate internet
connectivity)
-- Communications (phone services for moves, adds, and changes)
-- Relationship Management (service reviews, change processes)
This agreement will not cover special projects such as implementation of Virtual
Private Networks, large-scale network changes or implementation of new internet
services. This agreement does not cover the Switchboard website. Any such
projects will be handled on an exception basis and resources provided
appropriately. The facilities and services described here are generally
consistent with those provided to Banyan in general. The service agreement is in
effect for a period of one year with an option for a one year renewal. Either
party may terminate this Agreement for convenience upon sixty (60) days advance
written notice to the other party.
FEES
The annual fee for service is $175,000 paid in monthly installments commencing
the date the Services Agreement is entered into, as set forth on page one of the
Services Agreement.
PHYSICAL INFRASTRUCTURE
Banyan Information Systems ("BIS") is responsible for corporate infrastructure
maintenance and management. Switchboard maintains responsibility for the
Switchboard website infrastructure.
Physical infrastructure includes hubs, routers, switches, firewalls, cabling
plant and shared corporate internet connectivity and the support required to
both keep these functional at high levels of service, and to make adjustments as
needed due to organizational changes.
Switchboard currently has all responsibility for its servers and related file
and print servers.
COMMUNICATIONS
Telecommunications services are provided to Switchboard and include PBX and
desktop phone service. Moves, adds and changes will be provided and in most
instances typical requests involving one to three users will be handled within
two business days.
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Large moves, adds or changes will normally require five business days. This
period is the result of our agreement with a third-party provider and may be
negotiable for a premium fee.
Any problems impacting service will be handled as outlined under support and
service and problems should be reported through whatever means available during
the problem period.
BIS provides Switchboard long distance service and calling cards.
MANAGEMENT
-- The agreed upon BIS and Switchboard staff will meet monthly,
between the 15th and 30th, to review open issues and the
general working relationship.
-- Call tracking is essential, to provide for understanding and
verification of the types of issues, number of calls, and the
responses provided by BIS.
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