OUTSOURCING SERVICES AGREEMENT by and between DAS FAMILY HOLDINGS and BPO MANAGEMENT SERVICES, INC. dated as of December 15, 2006
by
and between
DAS
FAMILY HOLDINGS
and
BPO
MANAGEMENT SERVICES, INC.
dated
as of December 15, 2006
1
This
Outsourcing Services Agreement (the “Agreement”)
is
made this 15th
day of
December, 2006 (the “Effective
Date”),
between Das Family Holdings, a company incorporated in India (hereinafter
“PROVIDER”)
and
BPO Management Services, Inc., a Delaware corporation (formerly netGuru, Inc.,
hereinafter “CLIENT”).
WHEREAS,
PROVIDER is in the business of providing technical expertise in information
technology, and business process outsourcing, and other technical consulting
services; and
WHEREAS,
CLIENT desires to use PROVIDER’s services, such as computer software
programming, systems analysis, design project management, business process
(the
“Services”),
and
PROVIDER agrees to provide such Services to CLIENT.
Accordingly,
in consideration of the promises and covenants set forth below, the parties
agree as follows, intending to be legally bound:
1. Scope
of Agreement.
a. PROVIDER
agrees to provide the Services to CLIENT as specified in one or more Statements
of Work that may be executed from time to time by PROVIDER and CLIENT, as more
further described in Section 9 herein. In the event of a conflict between the
terms provided in any such Statement of Work and the terms of this Agreement,
the terms of this Agreement shall prevail, except for the fee structure where
the Statement of Work shall control. CLIENT reserves the right to modify the
Services required under an executed Statement of Work from time to time, as
its
business needs change, and any increase or decrease in Services required from
CLIENT shall be reflected in adjustments to the fees provided in the applicable
Statement of Work. All such changes shall be provided in a revised Statement
of
Work executed by PROVIDER and CLIENT, and by this reference shall be attached
as
an amended Addendum hereto and made a part hereof.
b. The
Services shall be performed accurately in accordance with generally accepted
standards in the Services industry in the United States and in compliance with
instructions from CLIENT. Services performed will be subjected to proper quality
assurance procedures, which shall be set forth in the applicable Statement
of
Work.
c. PROVIDER
shall provide personnel adequately trained in the Services. PROVIDER agrees
that
all personnel assigned to work on CLIENT projects shall undergo ongoing
development and training to ensure current knowledge regarding the
Services.
d. PROVIDER
shall abide by CLIENT’s policies and procedures for the purpose of ensuring that
information obtained by PROVIDER in the course of performing Services under
this
Agreement shall be kept confidential and shall not be disclosed except as
required by law and as necessary for the performance of PROVIDER’s obligations
hereunder.
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e. PROVIDER
will assign an Account Manager in India to work with CLIENT and assume complete
responsibility for the account.
2. Term.
This
Agreement shall be effective upon its execution by both parties and shall remain
in effect for an initial period of 12 months (the “Term”).
This
Agreement shall automatically renew for successive periods of one year, unless
and until terminated by either party as provided below.
3. Intellectual
Property.
a. CLIENT
warrants that the use by PROVIDER of any and all materials furnished by CLIENT
to PROVIDER under this Agreement will not violate or conflict with any
intellectual property rights of any third parties including, but not limited
to,
copyrights, patents and trademarks. To the extent applicable hereunder, CLIENT
warrants that it is authorized to permit PROVIDER to use all relevant code
for
the purposes of performing services hereunder.
b. All
original works of authorship, trade secrets and know-how that are conceived,
originated or developed by PROVIDER or its employees, agents, consultants or
subcontractors (whether alone or in combination with others), directly as a
result of the Services rendered to CLIENT hereunder (collectively,
“Inventions”), shall be the sole and exclusive property of CLIENT and shall be
considered “Works Made for Hire”, and PROVIDER hereby assigns to CLIENT any
rights it may have or acquire in such Inventions. PROVIDER agrees to (and shall
cause its employees, agents, consultants or subcontractors to) execute any
and
all documents which CLIENT deems necessary to transfer or assign such rights
to
CLIENT.
4. Confidential
Information.
a. For
purposes of this Agreement, “Confidential Information” shall mean any
information that relates in any way to the business of the disclosing party,
its
client’s or patients of its clients, including, without limitation, (i)
financial information pertaining to the disclosing party or its clients; (ii)
the identity of the disclosing party’s actual or potential clients or any of the
individuals associated with or employed by them; (iii) proposals, quotes,
requests for quotes, marketing plans, and financial analysis; (iv) the facts,
terms and copies of any of the disclosing party’s agreements with its clients,
with the receiving party or with others; (v) all written information regarding
the disclosing party or its client’s furnished to the receiving party; (vi) all
proposed campaigns, products, plans, techniques or ideas developed by the
disclosing party and revealed to the receiving party in connection with the
business of the disclosing party; (vii) referral sources and fee structure;
and
(viii) intellectual property, specifically pertaining to certain processes
that
are documented and identifiable as unique to their business and not generally
common practice in the disclosing party’s industry. For the purpose of this
Agreement, “disclosing party” shall mean the party furnishing Confidential
Information to the other party to this Agreement and “receiving party” shall
mean the party furnished with Confidential Information by the other party to
this Agreement.
b. “Confidential
Information” shall not include: (i) information which is now publicly available
or which later becomes publicly available through no fault of the receiving
party (but only after it has become publicly available); (ii) information which
was already known to the receiving party before disclosure by the disclosing
party or its clients; (iii) information which is lawfully obtained by the
receiving party from a third party, not an agent, employee or affiliate of
the
other party; or (iv) information which is developed independently by the
receiving party’s employees who have not had access to the information disclosed
by the disclosing party.
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c. The
receiving party agrees that it shall: (i) not use any of the Confidential
Information other than for the purpose of performing the Services; (ii) not
disclose any Confidential Information to any party without the prior written
consent of the disclosing party; (iii) retain Confidential Information in the
strictest of confidence and limit internal dissemination of the Confidential
Information to individuals whose duties justify the need to know such
Confidential Information in connection with the performance of the Services
and
who have been informed of their obligation to maintain the secrecy of such
Confidential Information and have agreed in writing to abide by such obligation;
and (iv) limit external dissemination of the Confidential Information outside
of
the receiving party to such legal, banking, technical or other advisors whose
functions in assisting the receiving party justify the need to know such
Confidential Information and who have been informed of their obligation to
maintain the secrecy of such Confidential Information and have agreed in writing
to abide by such obligation. Upon the disclosing party’s request at any time,
the receiving party will promptly return to the disclosing party any and all
Confidential Information that the receiving party then has in its possession,
without retaining any copies, samples or other tangible records.
d. No
right
to the Confidential Information is granted, and nothing contained in this
Agreement shall be construed as creating an express or implied license to use
the Confidential Information for any purposes other than performing the
Services.
e. The
parties shall cooperate to comply with all laws regarding confidentiality and
security of health care information.
f. PROVIDER
may disclose CLIENT’s confidential information if directed to do so by a court
order or government agency, provided, however, that PROVIDER will only disclose
such information to the extent directed by such court order or government agency
and will provide written notice to CLIENT prior to making such disclosure and
PROVIDER shall cooperate with CLIENT to the extent reasonably requested (and
at
CLIENT’s expense) in securing any protective orders or similar protections in an
effort to preserve the confidential nature of such information.
5. [Reserved].
6. Non-Competition
and Non-Solicitation.
a. Except
for those employees listed in Exhibit
A
and as
otherwise provided in Section 11 herein, during the term of this Agreement
and
for eighteen (18) months following its termination, CLIENT shall not hire or
offer any employment or other form of services, directly or indirectly, either
alone or through its affiliates to any of the consultants of PROVIDER assigned
or introduced to CLIENT under this Agreement.
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b. PROVIDER
agrees that, during the Term of this Agreement (and any extension thereof)
and
for a period of eighteen (18) months after the termination thereof, for whatever
reason, it will not solicit, directly or indirectly, or attempt to solicit,
directly or indirectly, any customer of CLIENT, to provide services being
provided by CLIENT.
7. Continuing
Operation.
Because
CLIENT and PROVIDER both were part of the same company in the past, Web4 and
netGuru Systems divisions of CLIENT already use about a total of 10 persons
of
different skills for ongoing product development, testing and support work.
These persons that will now be part of PROVIDER are identified in Exhibit
A.
For
these resources, CLIENT will pay the actual gross pay per employee plus a markup
of Five Hundred Dollars (US$500) per month per employee to PROVIDER. CLIENT
will
make adjustments to the salaries of these employees as deemed necessary. CLIENT
will guarantee the employment for all these personnel for the first six months.
These resources will be working full-time for the CLIENT and if CLIENT is not
happy with their performance, CLIENT will issue a notice, and if the performance
of the said person remains below CLIENT’s expectations two weeks after receiving
the notice, CLIENT reserves the right to terminate that particular person from
their payroll. After the initial six month period, CLIENT may decide to hire
any
of the employees directly at their other offices by paying a fee to PROVIDER
equal to one month’s salary of said employee.
8. Termination.
After
the initial 4 month period, either party may terminate any Statement of Work
hereunder for any reason by giving the other party 60 days written notice
addressed to the other party’s last known address. If a Statement of Work is
terminated by CLIENT under this Section prior to such Statement of Work’s
completion date, CLIENT agrees that it will be reimburse PROVIDER for any costs
or expenses incurred by PROVIDER in connection with such Statement of Work,
including travel, lease breakage and other relocation expenses incurred by
PROVIDER or its consultants in relation to the performance of such Statement
of
Work; provided, however, that CLIENT shall have no obligation to reimburse
PROVIDER for any costs and expenses if such Statement of Work is terminated
by
CLIENT due to a lack of performance by PROVIDER. If any Statement of Work is
terminated by CLIENT for a material breach by PROVIDER, PROVIDER shall
immediately refund all amounts it received under the applicable Statement of
Work to date.
9. Rate
Structure.
For
Statement of Work other than the “Continuing Operation” service described in
paragraph 7 above, services provided under this agreement shall be billed to
CLIENT by PROVIDER at the following rate structure:
|
S.
No.
|
Description
|
Rate
(per hour)
|
Comments
|
|
1
|
Offshore
BPO:
Software
Devlpmt.:
Low,
Medium, High
|
$7
$12,$13,$15
|
Loaded
- Inclusive of generic hardware/software, bandwidth (excluding IP
telephony), telephones (excluding ISDs), program management oversight
and
process support, and not inclusive of specialized software licenses,
office space, electricity, benefits, transportations
|
|
2
|
Onsite
Work
|
$40
- $70
Skill
Specific
|
Work
engagements on any work authorization visa or status. The rate can
vary
for different requirements
|
|
3
|
Onsite
Short Term
|
$20
- $30
Skill
Specific
|
Under
3 months on B1 visa for training of knowledge transfer (plus expenses
to
include airfare, hotel accommodation and local
transport).
|
|
4
|
Telephone
& Internet Usage
|
Actual
Cost + 10% processing fee
|
|
|
5
|
Other
Special Services, Special Software
|
Actual
Cost + 10% processing fee
|
5
For
onsite resources, additional travel and expenses on actual, if required by
CLIENT to travel to other locations from primary work location.
PROVIDER
will provide a timesheet on the 1st
and
16th
of each
month with all hours logged into the engagement. And upon approval PROVIDER
will
invoice CLIENT semi-monthly for services provided and expenses incurred under
this Agreement through the date of such invoice. All invoices shall be payable
30 days after the date of invoice. Invoices unpaid by CLIENT shall be subject
to
a 1.5% interest per month, which shall be added to the fee due and owing to
PROVIDER.
10. Statement
of Work (SOW).
a. All
services performed by PROVIDER shall be rendered in accordance with individual
written Statements of Work which will include a detailed schedule of the
services. The Statement of Work can optionally also include overriding service
fee structures, which if included will override the rates specified in the
Agreement. The individual Statements of work can be setup as Time & Material
or Fixed-Price or a combination with components in Time & Material and
Fixed-Price.
b. PROVIDER
agrees to provide the Services under this Agreement and any Statement of Work
on
a professional best-efforts basis and in accordance with the highest
professional standards in PROVIDER’s field, to the reasonable satisfaction of
CLIENT. The Services will be performed by individuals well qualified to perform
such Services, and PROVIDER shall provide, upon request of CLIENT, information
concerning the individuals’ experience which affirms these qualifications.
CLIENT reserves the right to reject any individual consultant and to require
a
replacement.
11. Indemnity.
a. Each
party shall indemnify and hold harmless the other party and its officers,
directors, employees and agents, from and against all losses, liabilities,
claims, demands and actions of any kind (including all costs, expenses and
reasonable attorneys’ fees) arising from a negligence, willful misconduct or
breach by such party of its obligations under this Agreement, and shall assume
without expense to the other party, the defense of any such claims or actions,
except as may be caused by the negligence or willful misconduct of such other
party.
b. NEITHER
PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR
INCIDENTAL DAMAGES SUFFERED BY THE OTHER, ITS SUCCESSORS, ASSIGNS OR THEIR
RESPECTIVE AFFILIATES, AS A RESULT OF OR ARISING FROM THIS AGREEMENT REGARDLESS
OF WHETHER SUCH LIABILITY ARISES FROM THE SERVICES PROVIDED HEREUNDER IN TORT,
CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION OR OTHERWISE.
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12. Relationship
of Parties.
Neither
party shall be considered the agent, employee or partner of the other for any
purpose whatsoever. Each party shall conduct its business in its own name and
shall be solely responsible for the acts of itself and of its employees and
agents. Unless expressly agreed to in advance, all expenses incurred by either
party in connection with this Agreement shall be for that party’s own account
and shall not be subject to reimbursement by the other party. Neither party
is
granted any express or implied right or authority to assume or create any
obligation or responsibility on behalf of or in the name of the other party or
to bind the other party in any manner.
13. Force
Majeure.
PROVIDER
does not undertake any responsibility if it is prevented from performing its
obligation due to sickness, accident, death of its consultants or any other
cause beyond the control of PROVIDER.
14. Assignment.
Neither
CLIENT nor PROVIDER may assign any part or whole of this Agreement or any rights
hereunder, without the written permission of the other party. Any such attempted
assignment shall be void.
15. Severability;
Governing Law; Choice of Venue.
If any
term or provision of this Agreement is declared illegal or unenforceable by
any
court of competent jurisdiction and cannot be modified to be enforceable, such
term or provision shall immediately become null and void, leaving the remainder
of this Agreement in full force and effect. This Agreement shall be binding
upon
the parties, their successors, legal representatives and permitted assigns.
It
is mutually agreed that this Agreement shall be construed and interpreted
according to the laws of the State of California. It is further agreed that
any
legal action filed concerning the enforcement or interpretation of this
Agreement shall be brought only in the state or federal courts, as applicable,
located in Orange County, California.
16. Waiver.
The
waiver of a breach of this Agreement or the failure of a party to exercise
any
right under this Agreement shall in no event constitute a waiver as to any
other
breach, whether similar or dissimilar in nature, or prevent the exercise of
any
right under this Agreement.
17. Severability.
The
provisions of this Agreement are severable, and in the event that any one or
more provisions are deemed illegal or unenforceable the remaining provisions
shall remain in full force and effect unless the deletion of such provision
shall cause this Agreement to become materially adverse to either party, in
which event the parties shall use reasonable commercial efforts (as defined
in
the Purchase Agreement) to arrive at an accommodation that best preserves for
the parties the benefits and obligations of the offending
provision.
18. Survival
of Obligations. The
obligations of the parties under Sections 2, 4 and 6 shall survive the
expiration of this Agreement. The parties acknowledge and agree that all claims
for any breaches or alleged breaches of any covenants contained in this
Agreement shall not be subject to the time periods, dollar and other limitations
set forth in the Purchase Agreement.
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19. Attorneys
Fees. Fees. If
either
party to this Agreement shall bring any action, suit, counterclaim, appeal,
arbitration, or mediation for any relief against the other, declaratory or
otherwise, to enforce the terms hereof or to declare rights hereunder, the
losing party shall pay to the prevailing party’s reasonable attorneys’ fees and
costs incurred in bringing and prosecuting such action and/or enforcing any
judgment, order, ruling or award.
20. Entire
Agreement.
This
Agreement and any related Work Orders represent the entire Agreement and
supersede any and all previous agreements and understandings between the parties
relating to the subject matter hereof, and may be amended only in writing,
signed by both parties.
[Signatures
on Next Page]
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IN
WITNESS WHEREOF, the parties have executed this Agreement, intending to be
legally bound, as of the day and year written above.
Accepted
by: Accepted
by:
|
“PROVIDER”
|
“CLIENT”
|
|||
|
Das
Family Holdings.
|
BPO
Management Services, Inc
|
|||
|
By:
|
/s/
Xxxxx X. Xxx
|
By:
|
/s/
Xxxxxxx Xxxxx
|
|
|
Name:
|
Xxxxx
X. Xxx
|
Name:
|
Xxxxxxx
Xxxxx
|
|
|
Title:
|
President
|
Title:
|
Chief
Executive Officer
|
|
|
Date:
|
December
15, 2006
|
Date:
|
December
15, 2006
|
|
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EXHIBIT
A
Kaveri
(Xxxxxx) Biswas - Pre-sales (partial night shift)
Xxxxxxx
Xxxxx - Developer
Xxxxxxxxx
De - Developer
Xxxxxxx
Xxxxx - Developer
Xxxxxxx
(Xxxxx) Mukherjee - eReview support
Xxxxx
Xxxxxx - Developer
R
Xxxxxxxx
Xxxxxx
Xxxxxxxx - IT Sales
Xxxxxx
Xxxxxx - Web Developer
Xxxxxx
Xxxxx - BBK
Xxxxxxxx
Xxxxxxxxxxxxx - BBK
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