SERVICES AGREEMENT

EX-10.1 2 t1600560_ex10-1.htm EXHIBIT 10.1

Exhibit 10.1

SERVICES AGREEMENT

Between:

(1)

Majesco, a California corporation, with offices located at 412 Mt. Kemble Avenue, Suite 110C, Morristown, New Jersey 07960 (“Majesco”); and

(2)

Digility, Inc., a Delaware corporation, with offices located at 685 Route 202/206, Bridgewater, NJ 08807 (“Digility”)

Each a Party and together the Parties.

The Agreement:

The Parties hereby agree as follows:

DEFINITIONS AND INTERPRETATION

1.1

In this Agreement, unless the context otherwise requires, the following words have the following meanings:

“Agreement” means this agreement between Majesco and Digility comprising these terms and conditions together with any Schedules and documents which are incorporated into this agreement by express reference (such documents being part of this agreement to the extent so referenced) or are to be made a part of this agreement in accordance with Clause 11.2;

“Charges” means the charges, as specified in Schedule B, together with such other charges as may be agreed between the parties from time to time, payable by Digility to Majesco under this Agreement in consideration of the provision of the Services;

“Confidential Information” means all information designated as such by either party in writing together with all other information which relates to the trade secrets, personnel, customers and suppliers of either party or information which may reasonably be regarded as the confidential information of the Disclosing Party;

“Disclosing Party” means the party disclosing Confidential Information for the purposes of Clause 7;

“Dispute Resolution Procedure” means the procedure as specified in Clause 13;

“Effective Date” means March 1, 2016;

“Personnel” means Majesco’s personnel who are engaged in providing the Services to Digility (including any agents and subcontractors);

“Receiving Party” means the party in receipt of Confidential Information for the purposes of Clause 7;

“Services” means the services to be provided by Majesco to Digility under this Agreement as specified in Schedule A hereto;

“Term” has the meaning given to it in the relevant Clause 2;

“Working Day” means Monday to Friday (inclusive) but excludes public holidays in the locality from which the Services are being provided; and

“Year” means any twelve month period commencing the Effective Date and anniversaries of that date.

1.2

In this Agreement words importing the singular include the plural and vice versa and words importing gender include any other gender.

1.3

The headings in this Agreement are for ease of reference and shall not affect the construction of this Agreement.

1.4

In the event and to the extent only of any conflict between these terms and conditions and the provisions of a Schedule, the following order of precedence shall apply (in descending order of precedence):

1.4.1

these terms and conditions; and

1.4.2

the provisions of the relevant Schedule.

COMMENCEMENT AND DURATION

2.1

This Agreement shall come into force on the Effective Date and shall remain in full force and effect unless and until either party exercises its rights to terminate this Agreement in accordance with Clause 8.

MAJESCO OBLIGATIONS

3.1

Majesco shall provide the Services set forth in Schedule A.

3.2

Majesco shall ensure that their Personnel comply with all the terms and conditions of this Agreement in the performance of the Services.

DIGILITY OBLIGATIONS

4.1

Majesco shall be entitled to rely fully on all information provided by Digility in providing the Services.

4.2

Majesco will not have any liability under this Agreement if it is unable to provide the Services on a timely basis due to any delay or failure by Digility (or its employees, agents, or third party suppliers) in complying with its obligations pursuant to this Agreement. Majesco shall, subject to Clause 3, also be entitled to:

4.2.1

adjust the date of delivery of the Services to accommodate the impact of such failure or delay;

4.2.2

charge Digility additional fees where such failure or delay causes Majesco to incur additional unanticipated costs; and/or

4.2.3

terminate this Agreement in accordance with Clause 8.1.1 where such failure or delay prevents Majesco from performing its obligations hereunder for a continuous period of thirty (30) days or more.

4.3

Majesco shall use its reasonable endeavours to mitigate the impact of any delay or failure of Digility (or its employee, agent or third party supplier of Digility) on its ability to provide the Services.

CHARGES AND PAYMENT

5.1

In consideration of the performance of the Services in accordance with the terms of this Agreement, Digility shall pay the Charges as set out in Schedule B hereto.

5.2

Payment shall be made within thirty (30) days of receipt by Digility (at its nominated address for invoices) of a written invoice.

5.3

Digility agrees to pay all applicable sales and goods and services taxes based on the payments made by Digility hereunder and under each Schedule, which are imposed by a governmental agency having jurisdictions where Digility conducts business.

5.4

Invoices not paid when due will accrue interest at the rate of five percent (5%) per annum from the date due until paid in full. All amounts due to Majesco shall be paid in US currency.

5.5

If Digility disputes the amount of any invoice, it shall notify Majesco of this in writing, giving reasons for the dispute, within ten (10) Working Days of receipt of the invoice and then:

5.5.1

either Party shall be entitled to refer the dispute to the Dispute Resolution Procedure; and

5.5.2

Digility shall pay any undisputed part of the invoice in accordance with Clause 5.2; and

5.5.3

upon resolution of the disputed portion of the invoice, the residual amount of the invoice shall be payable within thirty (30) days of the date of the resolution.

5.6

If Digility fails to pay the Charges by the due date for payment as specified in Clause 5.3 or Clause 5.5, Majesco reserves the right to suspend services under this Agreement and any associated Schedule if invoices remain unpaid for forty five (45) days after invoice date. If an invoice remains unpaid for more than sixty (60) days, then Majesco reserves the right to terminate this Agreement immediately in accordance with Clause 8.1.1.

WARRANTIES

6.1

Both parties warrant that they have the right, power and authority to enter into this Agreement.

Majesco Warranties

6.2

Majesco warrants to Digility that:

6.2.1

the Services shall be performed in a timely and professional manner using appropriately skilled, experienced and qualified Personnel; and

6.2.2

it shall comply with all applicable laws, enactments, orders and regulations in the performance of its obligations hereunder.

6.3

Except as expressly stated in this Agreement and to the maximum extent permitted by applicable law, all other warranties and conditions, whether express, implied or statutory, regarding the Services, including, but not limited to, any warranty of merchantability, satisfactory quality or fitness for a particular purpose are hereby disclaimed.

6.4

For any breach of the above warranties, Digility’s exclusive remedy, and Majesco’s entire liability, will be the re-performance of the deficiently performed Services to meet the above warranties.

Digility Warranties

6.5

Digility warrants to Majesco that information or material supplied by Digility for the purpose of enabling Majesco to perform the Services shall be accurate and complete.

6.6

Except as expressly stated in this Agreement and to the maximum extent permitted by applicable law, all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any warranty of merchantability, satisfactory quality or fitness for a particular purpose are hereby disclaimed.

CONFIDENTIALITY

7.1

Each Receiving Party acknowledges that the Confidential Information of the Disclosing Party is valuable to such Disclosing Party and undertakes to keep such Confidential Information secret and to protect and preserve the confidential nature and secrecy of that Confidential Information.

7.2

Each party may only use, reproduce or disclose the Confidential Information of the other for the purposes of performing its obligations or exercising its rights under this Agreement.

7.3

The Receiving Party may disclose the Confidential Information of the Disclosing Party on a need to know basis to:

7.3.1

its legal advisers in order to advise it in relation to its rights under this Agreement; and

7.3.2

its employees, agents, subcontractors and Affiliates provided that the disclosure is made solely for the purpose of performing its obligations or exercising its rights under this Agreement.

7.4

The Receiving Party may disclose Confidential Information of the Disclosing Party:

7.4.1

to the extent required by law or lawful requirement of any government or governmental body, authority or agency having authority over the disclosing party; or

7.4.2

if required in connection with legal proceedings relating to this Agreement,

but in each case subject to the Receiving Party giving the Disclosing Party sufficient notice of any proposed disclosure to enable the Disclosing Party to seek a protective order or other remedy to prevent the disclosure.

7.5

The obligations of the Receiving Party in this Clause 7 does not apply to any Confidential Information that:

7.5.1

is or becomes public knowledge other than by breach of this Clause 7; or

7.5.2

is in the possession of the Receiving Party without restriction in relation to disclosure before the date of receipt from the Disclosing Party; or

7.5.3

is received from a third party who lawfully acquired it and who is under no obligation to the Disclosing Party restricting its disclosure; or

7.5.4

is independently developed without access to the Confidential Information.

7.6

Each party acknowledges that damages may not be an adequate remedy in the event of breach of this Clause and that the Disclosing Party shall be entitled to seek injunctive relief to protect the confidentiality of its Confidential Information.

7.7

The parties shall ensure that their personnel are bound by confidentiality undertakings substantially similar to this Clause 7.

TERMINATION

8.1

Either party may at any time, by notice in writing to the other party, terminate this Agreement as from the date of service of such notice if the other party:

8.1.1

breaches any provision in this Agreement which expressly entitles the non-breaching party to terminate this Agreement in accordance with this Clause; or

8.1.2

commits a material breach of any provision in this Agreement which is not remediable or, if remediable, is not remedied within thirty (30) days after the non-breaching party has given written notice to the breaching party requiring such breach to be remedied; or

8.1.3

becomes or is likely to become unable to pay its debts or becomes subject to or itself invokes, or evidences an intention to invoke, any law or proceedings (in any jurisdiction to which it is subject) relating to its insolvency, liquidation, bankruptcy, winding-up, administration or dissolution or to a rescheduling, composition or arrangement in respect of any of its debts (otherwise than for the purposes of a bona fide amalgamation or reconstruction), or it has a receiver or other encumbrancer appointed over any part of its assets, allows a judgement against it to remain unsatisfied for more than fourteen (14) days.

8.2

This Agreement may be terminated by either party for any reason or no reason, by providing the other party written notice of the termination thirty (30) days in advance.

CONSEQUENCES OF TERMINATION

9.1

The termination of this Agreement shall not prejudice or affect any right of action or remedy which shall have accrued or shall thereafter accrue to either party.

9.2

In the event that this Agreement is terminated or expires, each party shall return to the other party all property (including Confidential Information) belonging to the other party then in its possession.

9.3

If this Agreement is terminated by Digility pursuant to Clause 8.2 or by Majesco pursuant to Clause 8.1, Digility shall pay to Majesco:

9.3.1

all Charges due and payable up to the date of termination of the Agreement;

9.3.2

the unavoidable costs of cancelling or assigning any leases, licences or other third party agreements; and

9.3.3

such other amounts as are set out in Schedule B:

in accordance with the provisions of Clause 5.

If this Agreement is terminated by Majesco pursuant to Clause 8.2, Digility shall pay to Majesco, all Charges due and payable up to the date of termination of this Agreement.

9.4

Following the expiry or termination of this Agreement neither party shall have any further obligation or right with respect to the other party except that this Clause 9 and Clauses 1, 7, 10, 12, 13.3, 13.8 and 13.9 will survive termination or expiry of this Agreement.

10.

LIMITATION OF LIABILITY

10.1

This Clause 10 prevails over the other Clauses and sets out the parties’ entire liability (including any liability for the acts and omissions of its employees, agents and sub-contractors) to each other in respect of:

10.1.1

any breach of its contractual obligations or conditions under this Agreement; and

10.1.2

any representation, warranty, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

10.2

Neither party excludes liability to the other for:

10.2.1

personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of itself, its servants, agents or sub-contractors; and

10.2.2

fraud or fraudulent misrepresentation.

Except as provided in Clauses 10.2, Majesco’s total cumulative liability to Digility and all of its affiliates under this Agreement, including any award of attorney’s fees or costs, for any and all claims whenever made whether in contract, tort or otherwise, or related to any one event or connected series of events, shall be limited to and shall not exceed the fees actually received by Majesco from Digility under the applicable Schedule during the immediately preceding twelve (12) month period to which such liability relates, regardless of the legal theory under which such liability is imposed.

10.3

Except as provided in Clause 10.2 and 10.3, neither party shall be liable to the other under or in connection with this Agreement, whether in contract, tort (including negligence), misrepresentation (other than where made fraudulently), breach of warranty or statutory duty or otherwise for:

10.3.1

any loss of business, contracts, profits, anticipated savings, goodwill, or revenue; or

10.3.2

any indirect or consequential loss whatsoever incurred by the other, whether or not the possibility of such loss has been advised in advance.

11.

AMENDMENTS

11.1

No amendment to the provisions of this Agreement shall be effective unless and until made in accordance with this Clause 11.

11.2

Any amendment to this Agreement must be made in writing, must expressly refer to the Clause(s) amended and must be approved on behalf of each party by an authorised signatory.

12.

DISPUTE RESOLUTION PROCEDURE

12.1

Except where expressly stated otherwise in this Agreement, all disputes arising out of or in connection with this Agreement between the parties or any failure between them to reach agreement on any matter requiring agreement within a specified period, shall be determined in accordance with the Dispute Resolution Procedure as set out below.

12.2

Escalation

12.2.1

All disputes between the parties arising out of or relating to this Agreement shall be referred by either party to a director of Majesco and a director of Digility for resolution.

12.2.2

If any dispute is not resolved by the parties representatives defined in Clause 12.2.1 within ten (10) Working Days after referral, the parties shall submit the dispute to arbitration in accordance with Clause 12.3 below.

12.3

Arbitration

As to any claim by either party (a “Claimant”) that the other has failed to comply in any material respect with the terms of this Agreement, the Claimant shall give the other party (the “Recipient”) written notice specifying in detail the nature and cause of the dispute and the resolution desired. Such written notice shall be sent within thirty (30) days after the condition giving rise to the claim is first recognized, and the Recipient shall have thirty (30) days after its receipt of such written notice to cure the condition giving rise to the claim.

a. The parties shall negotiate in good faith with respect to any such claim. In the event that the parties are unable to resolve any disputed matter arising hereunder, the unresolved matter shall be resolved by arbitration. Arbitration shall be initiated by one party’s making a written demand on the other party and simultaneously filing copies of such demand, together with the required fees, with the regional office of the American Arbitration Association (“AAA”). Within twenty one (21) days after such filing, each party shall designate an arbitrator. The arbitrators so designated shall, within fourteen (14) days after their respective appointments, select a third arbitrator, who shall be experienced in the subject areas of computer transactions, including, but not limited to, hardware and software purchase and license agreements. In the event that the arbitrators designated by the parties hereto are unable to agree upon a third arbitrator, then such arbitrators shall apply to the AAA to

designate and appoint a person meeting the criteria set forth above as the third arbitrator. In the event the party upon whom the original arbitration demand was served shall fail to designate an arbitrator within the fourteen (14) day period, the arbitrator designated by the party requesting arbitration shall act as the sole arbitrator and shall be deemed to be the single, mutually approved arbitrator to resolve the matter under dispute.

b. The arbitration shall be held in New Jersey. The AAA Commercial Rules of Arbitration (the “AAA Rules”) shall govern all proceedings unless otherwise provided herein. In case of conflict between the AAA Rules and this Agreement, the provisions of this Agreement shall govern.

c. The parties expressly covenant and agree to be bound by the decision of the arbitration panel and accept any such decision as the final determination of the matter under dispute. The award of the arbitrators shall be binding and may be entered as a judgment in any court of competent jurisdiction.

d. The prevailing party in any arbitration shall be entitled to reasonable attorneys’ fees and expenses from the other party as part of the arbitration award.

13.

GENERAL

13.1

Force Majeure

13.1.1

Neither party shall be liable to the other under this Agreement for any failure to perform its obligations hereunder or for any loss or damage which may be suffered by the other party due to any circumstances beyond its reasonable control including without limitation any Act of God, failure or shortage of power supplies, flood, lightning or fire, strike or other industrial action the act or omission of Government or other competent regulatory authority, war, military operations, or riot.

13.1.2

If either party wishes to rely upon this Clause 13.1 it shall send written notice to the other party explaining the relevant force majeure circumstances and both parties shall take all reasonable steps to mitigate the impact of such force majeure event.

13.1.3

Either party may terminate this Agreement in whole or in part where a force majeure event has substantially prevented or delayed either party from performing its obligations under this Agreement continuously during the immediately preceding sixty (60) days.

13.2

Assignment and Sub-Contracting

13.2.1

Neither Party shall without the written consent of the other Party assign, subcontract, transfer or declare a trust of this Agreement or any of its rights or obligations, in whole or in part.

13.2.2

Majesco may subcontract any of its rights and obligations hereunder, provided that in such circumstances Majesco shall not be relieved of any of its obligations nor of any of its liabilities under this Agreement and shall ensure that the subcontractor complies with the relevant provisions of this Agreement.

13.3

Communications

Any notice or request required or permitted to be given or made under this Agreement shall be in writing. Such notice or request shall be deemed to have been served as follows: (i) if delivered by hand, at the time and date of delivery; or (ii) if sent to the address of the relevant party, as set out in this Agreement or to such other address as notified to the other party in writing, by recorded delivery or registered post, 48 hours from the date of posting (such date as evidenced by postal receipt or the equivalent).

13.4

Severability

If any provision (or part of a provision) of this Agreement is found to be invalid, illegal or unenforceable under any applicable law, such provision shall, insofar as it is severable from the remaining terms, be deemed to be omitted and severed from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms. In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of this Agreement, the parties shall immediately commence good faith negotiation to remedy such invalidity.

13.5

Waiver

Any waiver or relaxation, whether partly or wholly, of any of the terms or conditions of this Agreement shall be valid only if in writing and shall apply only to a particular occasion and shall not be continuing and further shall not constitute a waiver or relaxation of any other terms or conditions.

13.6

Third Party Rights

Except where expressly provided to the contrary, this Agreement is not intended to be for the benefit of, and shall not be enforceable by, any person who is not named at the date of this Agreement as a party to it. The parties to this Agreement reserve the right to rescind or vary this Agreement without the consent of any third party who is expressly entitled to enforce this Agreement.

13.7

Relationship of the Parties

The Parties acknowledge and agree that this Agreement shall not constitute, create or otherwise give effect to a joint venture or a partnership of any kind and neither party shall have the right to bind the other without the other’s prior written consent.

13.8

Entire Agreement

This Agreement sets out the full extent of the Parties’ obligations and liabilities arising out of or in connection with this Agreement or any collateral contract, and there are no conditions, warranties, representations or terms, express or implied, that are binding on the Parties except as specifically stated or contemplated in this Agreement; any condition, warranty, representation or other term which might otherwise be implied into or incorporated in this Agreement or any collateral contract, whether by statute, common law or otherwise, is hereby expressly excluded.

13.9

Governing Law and Jurisdiction

The construction, validity and performance of this Agreement and all non-contractual obligations arising from or connected with this Agreement shall be governed by the laws of New Jersey, without regard to New Jersey’s choice of law rules.

IN WITNESS OF WHICH, the parties have executed this Agreement by their duly authorised representatives on the date first written below.

EXECUTED by the parties

For and on behalf of MAJESCO:		For and on behalf of DIGILITY:

By:	/s/ Bithindra Bhattacharya	By:	/s/ Anant Thakrar

Name:	Bithindra Bhattacharya	Name:	Anant Thakrar

Date:	3/1/2016	Date:	1 March 2016

SCHEDULE A – THE SERVICES

The Services shall consist of the provision of the following:

Managed office accommodation and facilities (excluding fees for rent & utilities for office space which are part of the sublease agreement);

Managed office IT infrastructure and networks;

Corporate support services, including HR and payroll, legal, recruitment and resourcing, immigration, travel management and such other corporate services as Majesco normally provides in the ordinary course of its business to its business operations in the United States;

SCHEDULE B – THE CHARGES

The Charges for the Services consist of:

a Monthly Core Charge of $3,750; and

a pass through of the actual costs of providing the Services incurred in excess of the Monthly Core Charge will be billed in addition to Monthly Core Charge in arrears but to be pre agreed prior to any charges being made.

A one-time additional service fee for the set-up of Digility of $1,000

Charges will be reviewed after six months from the effective date to determine if any changes need to be made to the Monthly Core Charge based on actual usage

The Monthly Core Charge covers the following services:

Managed office accommodation and facilities;

Managed office IT infrastructure and networks (for clarification, this excludes direct pass through costs like laptops, mobile phone charges, etc.);

Any third party costs not included within Services, for example, insurance, marketing events, laptops, mobile phone charges, etc. will be charged on the basis of pass through of the actual costs.

Any support services by Majesco staff not included within Services, for example, pre-sales support, sales support, marketing support, etc. will be charged on a basis to be determined separately between both parties but before provision of such services.