EXHIBIT-10.6.3
PAYROLL SERVICES AGREEMENT
--------------------------
This PAYROLL SERVICES AGREEMENT ("Agreement") is made and entered into
effective after close of business July 14, 2000 ("Effective Date") by and
between:
Seagate Software Information Management Group Holdings, Inc., a Delaware
corporation with its office located at 000 Xxxx Xxxxx, Xxxxxx Xxxxxx, XX 00000
("Company"); and
Seagate US LLC, a Delaware limited liability company, with its office located at
000 Xxxx Xxxxx, Xxxxxx Xxxxxx, XX 00000 ("Provider"),
in reference to the following facts:
A. Company wishes to engage Provider to perform certain payroll services that
will benefit Company's business;
B. Provider is willing and able to perform such services for Company on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and conditions set forth herein, the Parties hereto agree as follows:
Article 1 - Engagement of Provider
----------------------------------
1.1 Engagement. Company hereby engages Provider, and Provider hereby agrees,
----------
to provide those services in connection with payroll and other related human
resource matters which Company may reasonably request from time to time.
1.2 Relationship Between Parties. Provider will act as an independent
----------------------------
contractor under the terms of this Agreement and not as a legal representative
of Company for any purpose whatsoever. Nothing in this Agreement shall be
construed to (a) give either party the power to direct or control the daily
activities of the other party, or (b) constitute the parties as principal and
agent, employer and employee, franchisor and franchisee, partners, joint
venturers, co-owners or otherwise as participants in a joint undertaking.
Provider has no right or authority to enter into any contract or to assume or
create any obligation of any kind, express or implied, on behalf of Company.
Article 2 - Representations and Warranties of Provider
------------------------------------------------------
Provider hereby represents and warrants that (a) it has qualified
personnel, appropriate facilities and adequate resources to discharge the
services covered by this Agreement in a timely and efficient manner, and (b) it
has the administrative and business experience and expertise required to perform
such services in a competent and professional manner.
1
Article 3 - Report of Services
------------------------------
3.1 Costs of Performing Services. Within thirty (30) calendar days after
----------------------------
the end of each quarter in which this Agreement is in effect, Provider shall
furnish Company with a written report (a) summarizing all services performed by
Provider pursuant to this Agreement, (b) detailing Provider's direct and
indirect costs attributable to such services other than those expenses
reimbursable under Article 4.2 ("Costs") as calculated by a methodology agreed
upon by the parties, and (c) detailing Provider's expenses reimbursable under
Article 4.2.
3.2 Reasonableness of Expenses. All costs and expenses reported by
--------------------------
Provider pursuant to this Agreement shall be reasonable and necessary costs and
expenses incurred by Provider in the performance of services under this
Agreement.
Article 4 - Consideration
-------------------------
4.1 Calculation of Fee. In consideration for the services performed by
------------------
Provider under this Agreement, Company shall pay Provider a fee equal to its
Costs ("Service Fees").
4.2 Reimbursement of Taxes. In addition to Service Fees, Company shall
----------------------
reimburse Provider for all non-recoverable federal, state, local, and other
taxes (including net worth, property or similar taxes assessable on or with
respect to the services, but excluding taxes on the net income of Provider) paid
by Provider in the performance of services under this Agreement
("Reimbursements").
4.3 Payments. Service Fees and Reimbursements payable by Company to
--------
Provider under Articles 4.1 and 4.2 shall be paid within thirty (30) calendar
days after receipt of Provider's written report under Article 3.1.
Article 5 - Records
-------------------
At all times during the term of this Agreement, Provider shall maintain
full, complete and accurate books of account and records with regard to its
activities under this Agreement. Upon reasonable notice, Company shall have the
right to review, during normal business hours, Provider's books and records in
order that Company, at its expense, may verify compliance by Provider with its
obligations under this Agreement.
Article 6 - Non-Disclosure of Confidential Information
------------------------------------------------------
6.1 Definition of Confidential Information. "Confidential Information"
--------------------------------------
shall mean all data and information of a confidential nature relating to
Company's payroll services. Confidential Information may be communicated
orally, in writing or in any other recorded or tangible form. Data and
information shall be considered to be Confidential Information if (a) Company
has marked them as such, (b) Company, orally or in writing, has advised Provider
of their confidential nature, or (c) due to their character or nature, a
reasonable person in a like position and under like circumstances as Provider
would treat them as secret and confidential.
2
6.2 Non-Disclosure Obligations. During the term of this Agreement, Company
--------------------------
will disclose certain Confidential Information to Provider solely to permit
Provider to perform its obligations under this Agreement. Without the prior
written authorization of Company, Provider shall not use or copy any
Confidential Information for any purpose other than as specifically authorized
by this Agreement, and shall not transfer or disclose any Confidential
Information to any third party. Provider shall take all steps necessary or
appropriate to protect Confidential Information against unauthorized disclosure
or use. Provider shall immediately notify Company of any unauthorized disclosure
or use of any Confidential Information that comes to Provider's attention, and
shall take all action that Company reasonably requests to prevent any further
unauthorized use or disclosure thereof.
6.3 Ownership of Materials. Provider expressly acknowledges and agrees
----------------------
that all files, lists, records, documents, drawings, specifications and computer
programs which incorporate, embody, or refer to all or a portion of the
Confidential Information shall remain the sole property of Company. Such
materials shall be promptly returned or delivered (a) upon Company's reasonable
request, or (b) in accordance with Article 8.1 of this Agreement upon
termination of this Agreement, whichever is earlier.
6.4 Exceptions. The obligations set forth in this Article 6 shall not
----------
apply to the extent, but only to the extent, that any Confidential Information
(a) is already known to Provider, (b) becomes generally available to the public
through no fault of Provider, (c) is or has been disclosed to Provider, directly
or indirectly, by any Person that is under no obligation of nondisclosure to
Company or an affiliate of Company, or (d) is required to be disclosed under any
applicable law, rule, regulation or governmental order.
Article 7 - Term and Termination
--------------------------------
7.1 Term and Renewal. This Agreement shall commence on the Effective Date
----------------
and shall continue for a period of three (3) years thereafter, unless earlier
terminated as provided in Articles 7.2 or 7.3 below. After this initial term,
the Agreement shall be automatically renewed for successive one (1) year
periods, unless either party gives written notice of non-renewal at least ninety
(90) calendar days before any renewal date.
7.2 Termination. This Agreement may be terminated by either party, with or
-----------
without cause, upon thirty (30) days prior written notice of termination to the
other party at any time. This Agreement may also be terminated by written notice
of termination, effective on the date such notice is received, after the
occurrence of any of the following events:
(a) Any breach of Provider's obligations under Article 6 of this
Agreement;
(b) To the extent permitted by applicable law, upon the insolvency or
bankruptcy of either party, the inability of either party to pay
its debts as they fall due or upon the appointment of a trustee
or receiver or the
3
equivalent for either party, or upon the institution of
proceedings against either party relating to dissolution,
liquidation, winding up, bankruptcy, insolvency or the relief of
creditors, if such proceedings are not terminated or discharged
within thirty (30) calendar days.
7.3 Termination for Breach. If either party shall commit any breach or be
----------------------
in default of its duties or obligations under this Agreement, other than those
set forth in Article 7.2(a) above, the non-breaching party shall give to the
breaching party written notice of such breach or default and shall request that
such breach or default be cured. If the breaching party fails to cure such
breach or default within thirty (30) calendar days of the date of the notice of
breach or default, the non-breaching party may terminate this Agreement
immediately by giving written notice of termination to the breaching party.
Article 8 - Rights and Obligations Upon Termination
---------------------------------------------------
8.1 Payment of Fees. Upon termination of this Agreement, Provider shall
---------------
submit to Company, within thirty (30) calendar days of such termination, a
written report of all Service Fees and Reimbursements owed prior to the
termination date, as prepared in accordance with Article 3 of this Agreement.
Except in the case of breach by Provider, Company shall pay all such Services
Fees and Reimbursements within thirty (30) calendar days after receipt of such
written report. Immediately upon termination, Provider shall return all
documents and other materials which contain or embody any Confidential
Information.
8.2 Cessation of Rights. Upon termination of this Agreement for any reason
-------------------
whatsoever, all rights and obligations of the parties under this Agreement shall
cease; provided, however, that termination of this Agreement shall not relieve
the parties hereto of any obligations accrued prior to said termination,
including but not limited to, Company's obligation to pay Provider the Service
Fees and Reimbursements payable under this Agreement.
8.3 Survival of Non-Disclosure Obligation. Notwithstanding the termination
-------------------------------------
of this Agreement, Provider shall continue to abide by the terms of its non-
disclosure obligations with respect to Confidential Information under Article 6
of this Agreement.
8.4 Waiver of Termination Compensation. To the extent permitted by law,
----------------------------------
Company shall not be liable for, and Provider hereby waives all rights to, any
termination compensation and all claims of any kind or character whatsoever, to
which Provider may be entitled solely by virtue of termination.
Article 9 - Compliance with Applicable Laws
-------------------------------------------
Provider shall at all times strictly comply with all applicable laws, rules,
regulations and governmental orders, now or hereafter in effect, relating to its
performance of this Agreement. Provider further agrees to make, obtain, and
maintain in force at all times during the term of this Agreement, all filings,
registrations, reports, licenses, permits and authorizations (collectively
"Authorizations") required under applicable law, regulation or order in order
for Provider to perform its obligations under this Agreement. Company shall
provide Provider with such assistance as Provider may reasonably request in
making or obtaining any such Authorizations.
4
Article 10 - General Provisions
-------------------------------
10.1 Waivers. The failure of either party to assert any of its rights
-------
under this Agreement shall not be deemed to constitute a waiver of that party's
right thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
10.2 Assignments. This Agreement is entered into by Company in reliance
-----------
upon the personnel and technical expertise of Provider, and Provider shall not
assign any of its rights or delegate the performance of any of its duties, under
this Agreement without the express written prior consent of Company.
10.3 Notices. All notices, reports, and other communications between the
-------
parties pursuant to this Agreement shall be sent by means that are mutually
acceptable to both parties, including by facsimile or electronic mail. Each such
notice, report, or other communication shall be effective when received.
10.4 Governing Law. This Agreement, and any disputes arising out of or in
-------------
connection with this Agreement, shall be governed by and construed in accordance
with the laws of California, excluding its rules governing conflicts of laws.
10.5 Jurisdiction. All disputes arising out of or in connection with this
------------
Agreement shall be submitted to the courts located within California, which
shall have exclusive jurisdiction to adjudicate such disputes. Provider hereby
expressly consents to the exercise of personal jurisdiction by such courts.
10.6 Headings. The subject headings of this Agreement are included for
--------
purposes of convenience only and shall not affect the construction or
interpretation of any provision of this Agreement.
10.7 Counterparts. This Agreement may be executed in several duplicates,
------------
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
10.8 Entire Agreement and Amendments. This Agreement constitutes the
-------------------------------
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior agreements between the parties, whether written or
oral, relating to the same subject matter. No modification, amendments or
supplements to this Agreement shall be effective for any purpose unless in
writing and signed by authorized representatives of each party.
5
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives.
Seagate Software Information Management Seagate US LLC
Group Holdings, Inc.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxx
Title: V.P., General Counsel Title: Secretary
6
