Exhibit 10.15
PROFESSIONAL SERVICES AGREEMENT
This PROFESSIONAL SERVICES AGREEMENT (this "Agreement") is entered into by
and between Grove Worldwide, acting through Grove North America, Division of
Kidde Industries, Inc. ("Customer"), and Baan U.S.A., Inc. ("Baan"), and
describes the terms and conditions pursuant to which Baan will provide
professional services with respect to the Software licensed by Baan to Customer
and certain subsidiaries of Customer pursuant to a certain Software License and
Support Agreement (the "License Agreement"). Any capitalized terms not expressly
defined in this Agreement have the meanings given to such terms in the License
Agreement.
In consideration of the mutual promises and upon the terms and conditions
set forth below, the parties agree as follows:
1. Scope of Services
1.1 Services. Baan shall provide the professional services (the
"Services") described in Schedule A attached hereto, as amended from
time to time by agreement of the parties.
1.2 Manner of Performance. Baan will retain the sole and exclusive right
to control or direct the manner or means by which the Services are
performed and may subcontract or assign any or all of its
obligations and rights under this Agreement. Any such subcontract or
assignment is subject to Customer's consent, which consent shall not
be unreasonably withheld or delayed.
1.3 Software. The Services will be provided for the current release of
the Software, unless otherwise specifically noted. Baan will not be
responsible for the migration or reimplementation of the Services
for Updates, Releases and Versions of the Software, unless Customer
separately contracts for such migration or reimplementation.
2 Customizations
If the Services to be performed hereunder include the development of
customized versions of the Software, then the following terms shall apply.
2.1 Definitions
(a) "Customizations" means the development of new software and/or
the adaptation of the Software by Baan at the request of
Customer.
(b) "Functional Specifications" means the determination of the
functional requirements with which the Customizations shall
comply.
(c) "Functional Design" means a detailed statement of the
Functional Specifications which includes the screens and print
reports to be developed.
2.2 Development
(a) Customizations shall be developed in accordance with the
Functional Specifications and the Functional Design.
(b) If Baan is so instructed by Customer, Baan shall develop the
Functional Specifications in consultation with the Contact
Person, as defined in Section 4.2 below, who shall bear the
ultimate responsibilitv on behalf of the Customer. The
Functional Specifications shall be approved in writing by the
Contact Person on behalf of the Customer.
(c) If the Functional Specifications are drawn up by the Customer
or by a third party on behalf of the Customer, they shall be
subject to Bann's prior written approval.
(d) After approval of the Functional Specifications they shall be
detailed by Baan in the Functional Design in consultation with
the Customer. The Functional Design shall also be approved in
writing on behalf of the Customer by the Contact Person.
(e) Only after approval of the Functional Design shall the
Customizations be developed. The Functional Design shall be
binding for the acceptance of the Customizations. All prior
oral and/or written undertakings by Baan as well as oral
and/or written wishes of the Customer not included in the
Functional Design shall herewith be of no further force or
effect.
(f) Within two weeks after the delivery of the Customizations to
Customer, the parties shall perform an acceptance test.
2.3 Acceptance
-1-
(a) Immediately after an acceptance test has been executed, the
parties shall draw up and sign an official record. This
official record shall state whether or not the (relevant part
of the) Customizations have been approved.
(b) In the event of approval the date of signing of the official
record shall be regarded as the date of acceptance.
(c) If (part of) the Customizations are rejected, the reason
therefor shall be stated in the official record. Defects which
have an adverse effect on the use of the Customizations, but
which do not materially interfere with its normal use, shall
not constitute a reason for Customer to withhold approval,
without prejudice to Baan's obligation to remedy such defects
free of charge.
(d) If the Customer has rejected (part of) the Customizations, new
acceptance tests will be executed within four weeks after the
date of the previous acceptance test. The official record then
to be drawn up shall state whether the defects described in
the previous official record have been remedied and whether or
not (part of) the Customizations have been approved.
3 Customer's Duties and Responsibilities
3.1 Data and Information. Customer shall make available in a timely
manner at no charge to Baan all technical data, computer facilities,
programs, files, documentation, test data, sample output, or other
information and resources required by Baan for the performance of
the Services. Customer will be responsible for, and assumes the risk
of any problems resulting from, the content, accuracy, completeness
and consistency of all such data, materials and information supplied
by Customer.
3.2 Equipment. Customer shall provide, at no charge to Baan, office
space, services and equipment (such as copiers, fax machines and
modems) as Baan reasonably requires to perform the Services.
3.3 Tasks. Responsibility for the proper implementation of the Software
is with Customer, Baan's role is to assist Customer with such
implementation. Tasks that are primarily the responsibility of
Customer's personnel will remain Customer's responsibility and will
remain under Customer's supervision, management and control, even if
Baan assists Customer in performing such tasks.
4 Relationship of Parties
4.1 Independent Contractors. Each party will be and act as an
independent contractor and not as an agent or partner of, or joint
venture with, the other party for any purpose related to this
Agreement or the transactions contemplated by this Agreement, and
neither party by virtue of this Agreement will have any right, power
or authority to act or create any obligation, expressed or implied,
on behalf of the other party.
4.2 Contact Person. Each party will appoint in writing an employee or
agent of such party to act as the "Contact Person" for all
communication between the parties related to the Services. The
Contact Person will be responsible for monitoring the status of the
Services and will schedule regular meetings with both technical and
management personnel of each party to review the status of the
Services. Either party may change its Contact Person upon written
notice to the other.
5 Fees and Payments
5.1 Fees. Customer shall pay Baan on a time and materials basis for the
Services in accordance with the fees set forth on Schedule B
attached hereto. Baan will invoice Customer on a biweekly basis as
Services are performed. All payments for fees and expenses must be
made within thirty (30) days of the date of invoice.
5.2 Expenses. Customer shall reimburse all reasonable travel and other
related expenses incurred by Baan in performance of the Services.
5.3 Taxes. Customer also agrees to pay or reimburse Baan for all
federal, state, dominion, provincial or local sales, use, personal
property, excise or other taxes, fees or duties arising out of this
Agreement or the transactions contemplated by this Agreement (other
than taxes on the net income of Baan).
5.4 Interest and further costs. Customer shall pay Baan one (1) per cent
interest per month on the outstanding balance of any fees or
expenses not paid within thirty (30) days of the date of invoice.
Customer shall further be responsible for all costs incurred by Baan
in connection with any claim made by Baan in order to recover
payment of Customers account, including without limitation, all
professional fees and legal costs.
-2-
5.5 Invoices. Services will commence as soon as practical following
Baan's receipt and acceptance of a signed copy of this Agreement and
a purchase order or other written authorization of the Services. If
Customer's procedures allow payment of invoices without a purchase
order, Customer shall provide a letter stating that fact to Baan.
Notwithstanding the foregoing, no terms, provisions or conditions of
any purchase order or other business form or written authorization
used by Customer will have any effect on the rights, duties or
obligations of the parties under, or otherwise modify, this
Agreement, regardless of any failure of Baan to object to such
terms, provisions, or conditions.
6 Ownership of Work Product
6.1 Creations. All software programs (including Customizations), source
and object code, specifications, designs, processes, techniques,
concepts, improvements, discoveries, and inventions made or
developed in connection with the Services (collectively,
"Creations") will be the sole and exclusive property of Baan.
6.2 License. Customer will be entitled to use the Creations solely in
connection with its authorized use of the Software, such right being
embodied in, and subject to, Customer's license of the Software
under the License Agreement.
7 Maintenance and Support
7.1 Term and Termination. Maintenance and Support (as defined below) of
any Customizations may be optionally contracted for by Customer
concurrent with the execution of this Agreement. If contracted for,
Baan's provision of Maintenance and Support to Customer will
commence upon the Effective Date and will continue for an initial
term of one (1) year. Maintenance and Support will automatically
renew at the end of the initial term and any subsequent term for a
renewal term of one (1) year unless Customer has provided Baan with
a written termination notice of its intention not to renew the
Maintenance and Support at least ninety (90) days prior to the
expiration of the then-current term. Termination of Maintenance and
Support upon failure to renew will not affect Customer's license of
the Software or the Creations.
7.2 Maintenance and Support Services. Maintenance and Support means that
Baan will provide telephone assistance with respect to the
Customizations, including: (a) clarification of functions and
features of the Customizations; (b) clarification of Documentation
pertaining to the Customizations, if any; (c) guidance in the
operation of the Customizations; and (d) error verification,
analysis and correction to the extent possible by telephone. Baan's
standard hours of service are Monday through Friday, 9:00 a.m. to
5:00 p.m., local time, except for holidays as observed by Baan.
Customer may contract for expanded days and hours of service as
agreed upon by Baan.
7.3 On-site Assistance. At Baan's discretion, Baan can decide to provide
Maintenance and Support at the Customer Site. In such event Customer
will reimburse Baan for all related traveling expenses and costs for
board and lodging.
7.4 Installation and Conversion. Customer may require Installation
and/or conversion of the Customizations. Unless otherwise agreed,
the costs hereof shall be invoiced to Customer on the basis of
Baan's then-current rates.
7.5 Maintenance Fee. The Maintenance Fee for standard hours of service
for each twelve (12) month period of Maintenance and Support will be
19% of the total amount paid by Customer for the Customizations;
provided that Customer has contracted for Maintenance and Support
under the License Agreement. Such Maintenance Fee is in addition to
the Maintenance Fee due under the License Agreement. Customer owes a
percentage of the Maintenance Fee which corresponds to the number of
months of the first term. The Maintenance Fee is due and payable in
fill in advance within thirty (30) days after the date of Baan's
invoice. Any amounts not paid within thirty (30) days will be
subject to interest of one percent (1%) per month, which interest
will be immediately due and payable. Each calendar year, the
Maintenance Fee may be modified by Baan due to general price
increases and/or general inflation increases which is reflected in
the Consumer Price Index, but shall, for a period of four years from
the Effective Date, in no event exceed five percent (5%) plus the
increase in the Consumer Price Index for the applicable time period,
by written notice to Customer at least thirty (30) days prior to the
end of the then-current term. In the event of a modification of the
Maintenance Fee, Customer may discontinue Maintenance and Support.
If Customer elects not to renew Maintenance and Support, Customer
may re-enroll only with Baan's consent and only upon payment of the
annual Maintenance Fee for the coming year and fifty (50) per cent
of all Maintenance Fees that would have been paid had Customer not
terminated Maintenance and Support.
-3-
7.6 Eligibility of Software/Responsibility of Customer. The provisions
of Sections 6.6 and 6.7 of the License Agreement will be applicable
to Maintenance and Support for Customizations, as if set forth in
full in this Agreement.
7.7 Assignment of Duties. Baan may assign its duties of Maintenance and
Support to a third party, provided that Baan will remain responsible
for the actions of such third party. Any such assignment is subject
to Customers consent, which consent shall not be unreasonably
withheld or delayed.
8 Limited Warranty and Limitation of Liability
8.1 Baan warrants that for a period of ninety (90) days from Baan's
completion of any Customizations, these Customizations will conform
to the Functional Specifications. If the Customizations are
demonstrated not to conform to such Functional Specifications, Baan
will, at Baan's option, undertake to correct the Customizations so
it conforms with such Functional Specifications, or, if the
foregoing is not commercially practicable, terminate this Agreement
and refund the fees paid for the Customizations pursuant to Section
5.1. The foregoing are Customer's sole and exclusive remedies for
breach of warranty. The warranty set forth above is made to and for
the benefit of Customer only. The warranty will apply only if:
(a) the Customizations have been properly used at all times and in
accordance with the instructions for use; and
(b) no modification, alteration or addition has been made to the
Software and/or the Customizations, by persons other than Baan
or Baans authorized representative.
8.2 Except as set forth above, Baan makes no warranties, whether
express, implied, or statutory, regarding or relating to the
Customizations, any Documentation, or any materials or services
furnished or provided to Customer under this Agreement Baan
specifically disclaims all implied warranties of merchantability and
fitness for a particular purpose with respect to the Customizations,
Documentation and said other materials and services, and with
respect to the use of any of the foregoing. In addition, Baan
disclaims any warranty with respect to, and will not be liable or
otherwise responsible for, the operation of the Customizations if
programs are made through the use of Baan Tools or non-Baan software
that change, or are able to change, the data model of the
Customizations.
8.3 In no event will Baan be liable for any loss of profits, loss of
use, business interruption, loss of data, cost of cover, or
indirect, special, incidental, or consequential damages of any kind
in connection with or arising out of the furnishing, performance or
use of the Customizations, or the services, whether alleged as a
breach of contract or tortious conduct, including negligence, even
if Baan has been advised of the possibility of such damages. In
addition, Baan will not be liable for any damages caused by delay in
delivery or furnishing the Customizations or the services. Baan's
liability under this Agreement for direct, indirect, special
incidental and/or consequential damages of any kind, including,
without limitation, restitution, will not, in any event, exceed the
fees paid by Customer to Baan under Section 5.1 of this Agreement.
8.4 Customer shall indemnify Baan against all claims by third parties
related to (the performance of) this Agreement.
8.5 The provisions of this Section 8 allocate risks under this Agreement
between Customer and Baan. Baan's pricing reflects this allocation
of risk and limitation of liabilities.
8.6 No action arising out of any breach or claimed breach of this
Agreement or the transactions contemplated by this Agreement may be
brought by either party more than one (1) year after the cause of
action has accrued. For purposes of this Agreement, a cause of
action will be deemed to have accrued when a party knew or
reasonably should have known of the breach or claimed breach.
8.7 No employee, agent, representative, or affiliate of Baan has
authority to bind Baan to any oral representations or warranty
concerning the Software or the Services. Any written representation
or warranty not expressly contained in this Agreement will not be
enforceable.
9 Term and Termination
9.1 Term. This Agreement will take effect on the Effective Date and will
remain in effect, unless earlier terminated in accordance with
Section 9.2, until all of the Services have been completed.
9.2 Termination.
(a) This Agreement may be terminated, with or without cause, by
Customer upon thirty (30)
-4-
days' prior written notice to Baan, provided that no such
termination will entitle Customer to a refund of any portion
of the Services fee.
(b) This Agreement may be terminated by Baan if Customer (i) fails
to pay any amount due to Baan under this Agreement within
thirty (30) days after Baan gives written notice of such
non-payment, or (ii) commits a material non-monetary breach of
this Agreement, which breach, if capable of being cured, is
not cured within thirty (30) days of a written notice of such
breach by Baan.
(c) This Agreement may be terminated by Baan if Customer (i)
terminates or suspends its business activities, (ii) becomes
insolvent, admits in writing its inability to pay its debts as
they mature, makes an assignment for the benefit of creditors,
or becomes subject to direct control of a trustee, receiver or
similar authority, or (iii) becomes subject to any bankruptcy
or insolvency proceeding under federal or state statutes.
(d) This Agreement may be terminated by Baan if it elects to
refund Customer's fees in accordance with Section 8.1 or
Section 8.1(c) of the License Agreement..
9.3 Effect of Termination. Termination of this Agreement will not affect
the provisions of this Agreement relating to the payment of amounts
due, the provisions of Sections 6 and 8 of this Agreement, or
Sections 8, 9 and 13.14 of the License Agreement, all of which will
survive termination of this Agreement, regardless of the reason for
termination.
10 Incorporation by Reference
The following Sections of the License Agreement are incorporated herein by
this reference as if set forth in full in this Agreement; Sections 4.4, 8,
9, 11, 12 and 13. References in those incorporated Sections to the
"Agreement" will mean this Agreement.
-5-
IN WITNESS WHEREOF, the parties have executed this Agreement.
GROVE NORTH AMERICA, DIVISION OF BAAN U.S.A., INC.
KIDDE INDUSTRIES, INC.
By: /s/ Kevin Calderwood VP
By: /s/ G. F. Heidinger -----------------------------
----------------------------- Kevin Calderwood VP
G. F. Heidinger --------------------------------
- -------------------------------- (print name and title)
(print name and title)
Date: 7/2/96
Date: 6/29/96
Address:
Address:
11911 Freedom Drive
1565 [ILLEGIBLE] Reston, VA 22090
Shady Grove, PA 17256
-6-
ADDENDA
ADDENDUM NUMBER ONE TO PROFESSIONAL SERVICES AGREEMENT
This is Addendum Number One (the "Addendum") to that certain Professional
Services Agreement dated June 26, 1996 (the "Agreement"), by and between Grove
Worldwide, acting through Grove North America, Division of Kidde Industries,
Inc. ("Customer") and Baan U.S.A., Inc. ("Baan").
In consideration of the mutual covenants set forth herein and in the
Agreement, Customer and Baan agree as follows:
Priority. The parties agree that the Agreement is hereby amended as set
forth in this Addendum. Any inconsistency between this Addendum and the
Agreement shall be resolved in favor of the intent of the parties as expressed
by this Addendum. Terms used herein with the initial letter capitalized which
are not otherwise defined herein, shall have the meaning given said terms in the
Agreement. The Agreement as amended by this Addendum shall remain in full force
and effect.
Affiliates. For purposes of the Agreement, "Affiliates" shall be included
in the definition of "Customer"(first set forth above) and shall mean those
operations and/or companies which now or hereafter make-up the Grove Worldwide
group of companies. As of the Effective Date, Affiliates include Grove North
America (Division of Kidde Industries, Inc.), National Crane Corporation, Grove
Europe Limited, Deutsche Grove GmbH, Grove France, the Delta Systems Group,
Grove Crane and Grove Manlift. No Affiliate other than Grove North America shall
be permitted to exercise any rights granted to Customer under the Agreement
until Grove North America advises the Affiliate of its obligations under this
Agreement, including this Addendum. Grove North America hereby guarantees the
performance of such Affiliates' obligations under the Agreement and shall
indemnify and hold harmless Baan from and against all losses, costs, liabilities
and expenses arising out of or relating to any breaches by such Affiliates of
such obligations.
3.2 Equipment. The words "at the Site" are inserted after the words "Customer
shall provide" in Section 3.2.
5.1 Fees. The following phrase is added at the end of Section 5.1, after the
period:
"If Customer decides to pre-pay for all services required for the
implementation of the Software from July 1, 1996 through January 1, 1997, these
services shall be available to Customer at a discount equal to ten percent (10%)
off Baan's then-current list price for those services. The payment for such
services shall be due and payable by Customer in full on October 1, 1996."
5.4 Interests and Further Costs. The word "thirty (30)" in the first sentence
of Section 5.4 is hereby deleted and replaced by the word "forty-five
(45)."
The second sentence of Section 5.4 is hereby deleted.
6.1 Creations. Section 6.1 is deleted and replaced by the following:
"6.1 Creations. All software programs, source and object code,
specifications, designs, processes, techniques, concepts,
improvements, discoveries and inventions made or developed in
connection with the Services (collectively, "Creations") will be
jointly owned by Baan and Customer, subject to Baan's underlying
rights in the Software and, furthermore, Customer's scope of rights
to the Creations shall be limited to
Addendum Number One To Professional
Services Agreement
Grove North America
================================================================================
Customer's scope of rights to the Software as set forth in the License
Agreement. Baan shall have the right to license or otherwise exploit such
Creations without the consent of Customer and without accounting to Customer for
any royalties or compensation therefrom.
6.2 License. Section 6.2 is deleted in its entirety.
7.5 Maintenance Fee. The words "for each calendar year" are hereby inserted
after the words "The Maintenance Fee" in the fourth sentence of Section
7.5.
The words thirty (30)" in the fourth and fifth sentences of Section 7.5 are
hereby deleted and replaced by the words "forty-five (45)."
The sixth sentence of Section 7.5 is hereby deleted and replaced by the
following:
"Each calendar year, the Maintenance Fee may be modified by Baan due to
general price increases and/or general inflation increases which are reflected
in the U.S. Producer Price Index, but Baan agrees that, prior to the fifth
anniversary of the Effective Date, the Maintenance Fee shall not increase by
more than the increase in the U.S. Producer Price Index, Total Finished Goods,
for each year during the applicable time period, by written notice to Customer
at least thirty (30) days prior to the end of the then-current term."
Sections 8.4 and 8.6 are hereby deleted in their entirety.
9 Term and Termination. The word "thirty (30)" where it appears in Sections
9.2(a) and 9.2(b) is hereby deleted and replaced by the word "forty-five
(45)."
9.3 Effect of Termination. The word "13.14" is hereby deleted and
replaced by the word "13.13."
IN WITNESS WHEREOF, the undersigned have executed this Addendum as of the date
first written above.
GROVE NORTH AMERICA, DIVISION
OF KIDDE INDUSTRIES, INC.
By: /s/ G. F Heidinger
-------------------------------
Name: G. F Heidinger
Title: SR VP & CFO
BAAN U.S.A., INC.
By: /s/ Kevin Calderwood
-------------------------------
Name: Kevin Calderwood
Title: VP
2