Devinto Ltd. HELP DESK
SERVICES AGREEMENT


THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN DEVINTO LTD., A GREAT BRITAIN CORPORATION WITH ITS PRINCIPAL PLACE OF BUSINESS AT 69 GREAT HAMPTON STREET, BIRMINGHAM, B18 6EW, GREAT BRITAIN, ("DEVINTO") AND YOU, THE PERSON, CUSTOMER, OR ORGANIZATION AS THE ORIGINAL END USER ("CUSTOMER").

BY INSTALLING AND USING THE SOFTWARE, CUSTOMER AGREES TO THE TERMS OF THIS HELP DESK SERVICES AGREEMENT.

READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS. BY INSTALLING AND USING THE SOFTWARE, OR ANY PART OF THIS SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE HELP DESK SERVICES AGREEMENT AND AGREEING TO BECOME BOUND BY THE TERMS OF THE HELP DESK SERVICES AGREEMENT.

IF YOU DO NOT AGREE TO BE BOUND BY THIS HELP DESK SERVICES AGREEMENT, OR DO NOT HAVE AUTHORITY TO BIND CUSTOMER TO THESE TERMS, THEN DO NOT INSTALL THE SOFTWARE INCLUDING THE HELP DESK SERVICES AGREEMENT AND START THE INSTALLATION PROCESS WITHOUT THE HELP DESK SERVICES.

Devinto and the Customer hereby agree as follows:

1. Background

The Customer wishes to engage Devinto to provide the help desk services as described and defined below and Devinto wishes to perform those services, all on the terms and conditions set forth herein.

2. Definitions

"Anniversary date" means December, 31th of each year.
"Commencement Date" shall mean the first of the followind dates: The date of the written acceptance of Devinto's offer for the Help Desk Service or the date of the payment of Devinto's offer for the Help Desk Service or the date of the commencement of Help Desk Services.
"Customer" means the Licensee or any subsidiary of the License as mentioned in the license contract.
"Customer Help Desk Contacts" means the Customer employees, identified by the customer, who may forward questions and requests to Devinto's Help Desk Service personnel, which list may be amended by a writing signed by both parties.
"Customer Help Desk Manager" means the executive at the Customer with overall responsibility for coordinating with Devinto in connection with Devinto's provision of Help Desk Services.
"Customer System" means the computer system located at the Customer, including all hardware and software, including the Devinto software as configured on the date hereof.
"Confidential Information" is defined in Article 7.
"Level II" support means necessary changes in design or code of the software application
"Help Desk Service" means the application environment help desk services to be provided to the Customer.
"Help Desk Service Fee" means the fixed rate annual fees for Help Desk Service.
"Help Desk Service Term" means the period during which Devinto shall provide Help Desk Service which shall begin on the Commencement Date.
"Patch" means object code to fix a specific software program bug and will be released as necessary.
"Services" means the Help Desk Services to be provided hereunder.
"Update" means a fix for a bug and/or some minor enhancements to the software including new drivers. A software update is not a full software version and free of charge.
"Subsidiary" means any organization whose accounts are consolidated with the accounts of the Licensee, or any organization in which one or more Licensee's organizations holds more than fifty percent of the issued share capital of the organization.
"Upgrade" means the purchase of a newer version of the software application
"Work Day" means Monday through Friday, excluding German holidays.

3. Scope of Services:

3.1 Maintenance

As long as this application help desk services agreement is effective, Devinto's offers regular Devinto software patches, updates free of charge to the customer.

3.2 Support

Devinto shall be responsible for providing to the Customer the Help Desk Services to the Customer Help Desk Contacts during the Help Desk Service Term.

1. Level II support by E-mail communication
2. Resolving program failures and undocumented errors
3. Systems diagnosis and application trouble shooting
4. Expedited system enhancements

Application Management including additional system configurations and enhancements may be requested by the Customer at additional cost and have to be agreed separately

Devinto Ltd. at it's sole discretion will make available information from time to time covering such items as workarounds and known errors in the Software.

3.3 Hours of Operation

Tickets can be logged at any time of day. Live coverage at the support center is 8am to 6pm Central Europaen Time during the working days. It is important to note that an Emergency or system down issue is rarely attributed to an application problem. Devinto's support staff will be suitably qualified to consider urgent problems reported and to give assistance within twelve (12) working hours of the error being reported.

Where possible, Devinto's support staff will attempt to solve a problem immediately or as soon as possible thereafter. Where appropriate, Devinto Ltd. will endeavour to give an estimate of how long a problem may take to resolve and in any event will keep the client informed of the progress of problem resolution on a regular basis.

3.4 Qualification of Personnel

The Devinto personnel providing Help Desk Service shall each be conversant in the operation, configuration and optimization of a Devinto Application Environment, and shall have experience at solving technical difficulties with similar systems. Devinto retains the right to determine the use and mix of its personnel in order to maintain the necessary and proper progress of the performance of the Services, and to replace or reassign such personnel during the term hereof. Devinto personnel shall perform the Services described in the Statement of Work in a professional manner that meets the standards generally prevalent in the application help desk service industry.

3.5 Covered Licenses

Licenses covered under this maintenance and support agreement include all licenses as described in Devinto's offer for the Help Desk Services to be accepted by customer.

4. Customer Responsibilities

4.1. In General

Customer recognizes that the responsibilities of Devinto hereunder are expressly conditional upon the Customer's performance of its obligations.

4.2. Information

Customer shall provide Devinto, in a timely fashion, all information known or later learned and which is necessary to Devinto's understanding of the its responsibilities under this Agreement, including, without limitation, its understanding of the Help Desk Services to be performed and to its performance of such services.

The client may submit, preferably by e-mail, reports detailing requests for information, suggested improvements or problem descriptions under the E-Mail Support Service.

4.3. Customer Help Desk Manager

The Customer shall, upon execution of the Agreement, designate a Customer Help Desk Manager to coordinate with Devinto, and to assist Devinto as required in gathering information, procuring services and related activities.

5. Compensation

5.1. Help Desk Service Fee

Customer shall pay Devinto the fixed rate fee in respect of the Support Services which is per year 20% out of the invoiced amount including all amenedments and further sales. Such fees are due annually in advance upon the commencement date of the support and any anniversary of that date.

Without a commitment to this Agreement, support will be charged based on an hourly rate. Billing is in fifteen (15) minute increments. The current hourly rates for support are USD 250.

5.2. Changes in Help Desk Service Fees

The Help Desk Service Fees are based on the configuration of the Customer's computer systems as of the date of this Agreement, and are subject to change in the case of a change in such configuration upon thirty (30) days notice to the Customer, subject to Customer acceptance. The Help Desk Service Fees are, in addition, subject to an annual five percent (5%) increase, which may or may not be imposed in Devinto's discretion, on each anniversary of the Help Desk Service Term. Upon at least thirty (30) days' notice the Customer.

5.3. Payments and Invoices for the Help Desk Services

All Help Desk Service Fees shall be payable by the Customer yearly in advance. The Customer shall make payment on such invoices within thirty (30) days after the end of the billing period covered by the invoice.

5.4. Late Payments

A finance charge of one and one half percent (1½ %) per month (18% annually) shall be assessed on any overdue payments hereunder. In addition, failure to make timely payment of any invoice in accordance with the terms hereof shall be deemed a material default and shall relieve Devinto or the distributor of its duty to perform the Services hereunder until full payment is made. In the event of such a default, Devinto or distributor shall be entitled to recover from the Customer its cost of collecting any overdue amounts, including reasonable attorneys' fees.

6. Term and Termination

6.1. Term

The term of this Agreement shall commence on the Commencement Date and shall end at the first Anniversary Date if the commencement date is prior to June 30th. After the anniversary date of the Help Desk Service Term, this Agreement and the obligations of the Parties hereunder with respect to Help Desk Services shall be terminable by either Party upon ninety (90) days notice to the other Party.

The term of this Agreement shall commence on the Commencement Date and shall end at the second Anniversary Date if the commencement date is after June 30th. After the second anniversary date of the Help Desk Service Term, this Agreement and the obligations of the Parties hereunder with respect to Help Desk Services shall be terminable by either Party upon ninety (90) days notice to the other Party.

The Agreement may not be terminated by either Party prior to the very last day before the Anniversary Date as described above; except in the event that Devinto increases the Help Desk Service Fee in the event of a change in the configuration of the Customer System and the Customer does not accept such a change, in which case, the Agreement shall terminate ninety (90) days after Devinto gives notice to the Customer of such increase.

6.2. Termination for Cause

If either Party should materially fail to fulfill its obligations, in whole or in part, under this Agreement, the other Party shall have the right to terminate this Agreement at any time while the default persists, by giving to the defaulting Party thirty (30) days written notice prior to the effective date of such termination. The defaulting Party shall have thirty (30) days to cure such breaches or defaults. The failure to cure such breaches or defaults within the stated period of time shall entitle the nonbreaching Party to terminate this Agreement at the end of such period.

6.3 Rights Upon Termination

Devinto shall use reasonable efforts to minimize fees and expenses upon notice of any such termination. All charges due to Devinto shall be paid by the Customer within thirty (30) days of submission of a final invoice by Devinto.

7. Confidential Information

7.1. Restrictions on Use

With respect to any data, drawing, documents or other information supplied by either Party to the other and clearly identified in writing as confidential (hereinafter referred to as "Confidential Information"), the receiving Party agrees:



7.2. Exclusions

Confidential Information shall not include information that:

  1. is, as of the time of its disclosure or thereafter becomes, part of the public domain through a source other than the receiving Party;
  2. was known to the receiving Party as of the time of its disclosure without obligation of confidentiality;
  3. independently developed by the receiving Party without reference to the Confidential Information;
  4. is subsequently learned from a third party that does not impose an obligation of confidentiality upon the receiving Party and had the right to disclose to the receiving Party, without imposing a duty of confidentiality;
  5. is required to be disclosed pursuant to law or regulation, government authority, duly authorized subpoena or court order, whereupon the receiving Party shall provide notice to the disclosing Party prior to such disclosure; or
  6. is approved for disclosure by prior written consent of the disclosing Party.


7.3. Duration

The terms of this Article shall survive the termination of this Agreement and shall continue in full force and effect for a period of three (3) years from the date hereof.

7.4. Provision of Help Desk Services to Third Parties

The Customer acknowledges that Devinto provides similar services to third parties and that Devinto may be providing services to third parties that are substantially similar to the services being provided to the Customer. The Customer agrees that Devinto may provide such services to third parties so long as Devinto does so without any use of, reference to or disclosure of the Customer's Confidential Information.

8. Intellectual Property

8.1. General

All materials and work created, developed or performed by Devinto (by itself or jointly with the Customer) in the course of performance of this Agreement, including, but not limited to, data, drawings, reports, system programs, designs and working papers shall be and is the property of Devinto and Devinto shall have all rights, title and interest therein including, but not limited to, copyrights, trade secrets and proprietary rights.

8.2. Trademark and Trade Name

This Agreement does not give either Party any ownership rights or interest in the other Party's trade name or trademarks, except that Devinto may, upon receiving prior written permission of the Customer, identify the Customer as a customer in its press releases and marketing literature, and at trade show and in presentations.

9. No Warranty; Limitations on Liability; Insurance

9.1. No Warranties

EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THERE ARE NO WARRANTIES, OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.

9.2. Limited Liability

IN NO EVENT SHALL DEVINTO BE LIABLE TO THE CUSTOMER FOR ANY MATTER ARISING PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT FOR AN AMOUNT IN EXCESS OF THE HELP DESK SERVICE FEE ACTUALLY RECEIVED BY DEVINTO DURING THE PRIOR TWELVE (12) MONTHS. IN NO EVENT SHALL DEVINTO BE LIABLE, FOR ANY REASON, FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING LOSS OF PROFITS OR BUSINESS OPPORTUNITIES) REGARDLESS OF WHETHER DEVINTO HAS BEEN ADVISED OF OR IS AWARE THAT SUCH DAMAGES HAVE BEEN OR MAY BE INCURRED.

9.3. Insurance

Devinto shall maintain at Devinto's own expense (1) Comprehensive General Liability Insurance, (2) Professional Liability Insurance for errors and omissions, which insurance shall provide coverage for liabilities or claims for damages resulting solely from Services performed or undertaken by Devinto hereunder. Certificates of Insurance shall be furnished to the Customer from time to time upon reasonable request.

10. Dispute

a. If a dispute arises out of or relates to this contract, or the breach thereof, and if said dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation under the Commercial Mediation Rules of the American Arbitration Association, before resorting to arbitration.

b. Any dispute arising out of or relating to this contract, or the breach thereof, that cannot be resolved by mediation within 30 days shall be finally resolved by arbitration, administered by the American Arbitration Association under its Commercial Arbitration Rules and judgement upon the award rendered by the arbitrators may be entered in any court having jurisdiction. The arbitration will be conducted in the English language in the city of New York, New York, U.S.A., in accordance with the United States Arbitration act. There shall be three arbitrators, named in accordance with such rules. The award of the arbitrators shall be accompanied by a statement of the reasons upon which the award is based. The arbitrators shall decide the dispute in accordance with the substantive law of the state of New York.

11. General

11.1. Independent Contractor

Devinto will provide Services under this Agreement as an independent contractor and that during the performance of Services under this Agreement, Devinto's employees will not be considered employees of the Customer within the meaning any federal, state or local laws or regulations including, but not limited to, laws or regulations covering unemployment insurance, old age benefits, worker's compensation, industrial accident, labor or taxes of any kind. Devinto's personnel who are to perform the Services to be provided by Devinto hereunder shall be under the employment, and ultimate control, management and supervision of Devinto. It is understood and agreed that Devinto's employees shall not be considered Customer employees within the meaning or application of Customer/employee fringe benefit programs for purposes of vacations, holidays, pension, group life insurance, accidental death, medical, hospitalization and surgical benefits. Nothing herein contained shall be construed to imply a joint venture, partnership or principal-agent relationship between Devinto and the Customer, and neither Party shall have the right, power or authority to obligate or bind the other in any manner whatsoever, except as otherwise agreed to in writing.

11.2. Non-Solicitation of Personnel

Each Party agrees, during the term of this Agreement and for a period of one (1) year following expiration or termination of this Agreement, not to hire or engage, or attempt to hire or engage, directly or indirectly, the employees or independent consultants of the other Party, except as may be agreed to in writing by both Parties. The foregoing prohibition applies to any attempt to hire or engage, during the term of this Agreement or within one (1) year of its termination or expiration, a Customer for which such a person works as an employee or consultant as a means of obtaining such person's personal services. Any violation of this section will be considered a material breach of this Agreement.

11.3. Entire Agreement

This Agreement together with the exhibits hereto, constitute the entire and sole agreement between the Parties with respect to the subject matter hereof and supersedes any prior agreements, negotiations, understandings, or other matters, whether oral or written, with respect to the subject matter hereof. This Agreement cannot be modified, changed or amended, except for in writing signed by a duly authorized representative of each of the Parties.

11.4. Conflict

In the event of any conflict, ambiguity or inconsistency between this Agreement and any other document which may be annexed hereto, the terms of this Agreement shall govern.

11.5. Force Majeure

In the event that performance on the part of either Party shall be delayed or suspended as a result of circumstances beyond its reasonable control, without its fault or negligence, then the schedule for performance shall be extended to the extent of any such delay and neither Party shall incur any liability to the other Party as a result of such delay or suspension. Circumstances deemed to be beyond the control of the Parties hereunder shall include, but not be limited to: Acts of God; acts of force majeure, civil or military authority; acts of public enemy; war; insurrection; acts of the Federal Government or any unit of State or Local Government beyond the Customer's control in either sovereign or contractual capacity; fires; floods; accidents; explosions; epidemics; earthquakes; the elements; quarantine restriction; strikes; labor disputes; interruption of electrical power or other public utility; freight embargoes or delays in transportation.

11.6. Waiver

No waiver shall be deemed to have been made by either Party unless expressed in writing and signed by the waiving Party. The failure of either Party to insist in any one or more instances upon strict performance of any of the terms or provisions of this Agreement, or to exercise any option or election herein contained, shall not be construed as a waiver or relinquishment for the future of such terms, provisions, option or election, but the same shall continue and remain in full force and effect. No waiver by any Party of any one or more of its rights or remedies under this Agreement shall be deemed to be a waiver of any prior or subsequent rights or remedy hereunder or at law.

11.7. Assignment and Delegation

Neither Party shall assign or delegate this Agreement or any rights, duties or obligations hereunder to any other person and/or entity without prior express written approval of the other Party, except that Devinto may subcontract certain of its duties hereunder to an affiliate of Devinto, provided that Devinto shall continue to be responsible for all such Services as provided in this Agreement (provided, in no event, shall Devinto have any responsibility for any IT or outsourcing services which any affiliate provides to the Customer under separate contract). Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the successors, legal representatives and assignees of the Parties hereto.

11.8. Notices

All notices shall be in writing and be deemed to be given or made when delivered by hand or registered mail to the Party at the address set forth in this Agreement.

11.9. Limitations on Actions

Any claim to enforce any right of either Party hereunder or arising as a result of an alleged breach of this Agreement must be commenced within two (2) years after the claim arises or the breach occurs.

11.10. Taxes

All prices and fees are exclusive of all federal, state, municipal or other government, excise, sales, use, occupational, or like taxes now in force or enacted in the future and, therefore prices are subject to an increase equal in amount to any applicable tax.

11.11. Severability

If any portion of this agreement is to be void, invalid, or otherwise unenforceable, in whole or part, the remaining portions of this agreement shall remain in effect.