Master Professional Services Agreement [Amendment] - Invisible IT Inc. and Align Technology Inc.
[LOGO OF INVISIBLE IT]
AMENDMENT
COMPREHENSIVE IT INFRASTRUCTURE SUPPORT SERVICES IN COSTA RICA
This Amendment is made pursuant to the Master Professional Services Agreement,
dated May 20, 2002, by and between Invisible IT Inc. ("INVISIBLE IT") and Align
Technology, Inc. ("ALIGN").
A. DESCRIPTION OF SERVICES AND SPECIFICATIONS
i. INVISIBLE IT shall provide support for computer and network
hardware, software, operation and maintenance and related
operational services at ALIGN's Costa Rica facility. There will
intensive initial effort for three months to bring the Costa Rica IT
operation to stability. This effort is documented in Attachment A,
"Invisible IT Action Plan to Operate IT for Align Costa Rica." At
the conclusion of the first 3 months, INVISIBLE IT will operate the
IT department in a "steady state" environment. Support shall be
provided as needed during normal business hours with critical
component support provided after hours 7 days per week, 24 hours per
day basis.
ii. The primary purpose of support consists of the physical care and
maintenance of ALIGN's desktops, servers, disk arrays and network
equipment located within the Costa Rica facility and data center
operations including but not limited to disk data backups, firmware
and software upgrades, and other mutually agreed-upon operational
support activities. Physical care and maintenance shall include the
repair or replacement and scheduled upgrades (e.g. processors,
memory, disks, etc.) of hardware and/or other components furnished
by ALIGN.
iii. This agreement covers the support and maintenance of the
following ALIGN Information Technology (IT) infrastructure
components.
. Network
. Internet Connectivity
. LAN
. WAN Connectivity
. Web Infrastructure
. Bandwidth
. Operations
. Desktop Support & Architecture
. Standardization
. Services
. Email
. File storage
. Naming Services (DNS, ADS, etc.)
. Backups
. Imaging
. Security
. Desktop
. Servers
. Network (LAN, WAN & web)
. Help desk
. Triage & dispatch
. Telephony
. PBX & stations
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. Voice mail
. Telco/circuits
. Customer service queues - call center
. MIS computers/infrastructure
. HW & OS
. Monitoring & Reports
. Real-time metrics
. Network
. Server data
. Failures & downtime
. Status Reporting
. INVISIBLE IT shall provide written reports to ALIGN weekly
that summarize IT projects in both Costa Rica and Santa
Clara.
. INVISIBLE IT will develop a Managed Hardware Operation (MHO). MHO is
the proactive management of parts and components required for the
efficient operation of ALIGN's Costa Rica facility. INVISIBLE IT
will develop, maintain and manage an inventory list of recommended
spare parts and accessories to be kept on hand in the facility.
INVISIBLE IT will assist in the procurement of or act as a vendor
for the purchase of equipment as recommended and needed for the Data
Center operation.
. Similar to the Managed Hardware Operation, on an ongoing basis
INVISIBLE IT will recommend to ALIGN improvements that will result
in enhanced reliability and productivity of the ALIGN facility and
IT infrastructure.
iv. The IT Support service of hardware does not include:
(a) Purchase of equipment of any nature. ALIGN is responsible
for the cost related to purchase equipment and accessories
under this support agreement.
(b) Software maintenance will be provided by ALIGN.
(c) Special projects except those that are mutually agreed and
can be accomplished within the Level of Service stipulated
below.
(d) Major upgrade or plant retrofitting.
(e) Facility moves.
(f) Diagnosing and repairing application issues.
(g) Support of software development or testing environments.
(h) Hardware repairs - utilize hardware vendor maintenance
agreements.
(i) Support for cell phones.
B. LEVEL OF SERVICE.
INVISIBLE IT will provide skills and experience in the following areas. Initial
service to be provided will be equivalent to or exceed service levels and
content of those provided by ALIGN internal IT services. INVISIBLE IT will
manage the definition and migration to standard supported services in all the
following areas:
1) PC Desktop Admin (Includes standard Microsoft productivity
applications, specifically Office, Word, Excel, Visio & etc.)
2) Peripherals (pda's, blackberry's, etc. as approved by ALIGN and
INVISIBLE IT)
3) Printers and Print Servers
4) Desktop Admin
5) Remote User support (migration to standard configurations)
6) LAN Admin
7) WAN Admin
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8) Windows and Unix Server Admin
9) Production Servers
10) Security (Desktop, Server, Network)
11) Asset and license management (migration)
C. RESPONSE TIME.
INVISIBLE IT will provide best efforts to respond to emergency service requests
from valid ALIGN members employees or alarms from hardware failures by having
personnel on site at the ALIGN Costa Rica facility to begin repair within one
(1) hour of request/alarm between the standard production hours of 7 AM and 7 PM
daily and within no more than two (2) hours for requests/alarms received during
other hours.
D. TERM.
This Schedule, services and fees are to be in effect beginning November 11, 2002
through February 10, 2003. Services and fees described herein are subject to
quarterly review by both parties to determine if adjustments are appropriate and
to amend this schedule if appropriate. Any such amendment shall be by mutual
written consent only.
E. HIRING OF FORMER ALIGN EMPLOYEES.
This Schedule modifies the mutual "no-hire" clause in the Agreement for those
employees that became INVISIBLE IT employees as part of the outsourcing
transition agreement. INVISIBLE IT grants ALIGN an option to rehire said
employees without any liability to INVISIBLE IT in the event that the Agreement
is terminated, for any reason.
F. PAYMENT AND DELIVERY.
The services provided under this schedule are fixed fee to be remitted as
follows:
(i) INVISIBLE IT shall provide the services listed above for a
fixed monthly fee of $100,000 for the first 3 months. Within
60 days of executing this amendment, INVISIBLE IT and ALIGN
will agree on an ongoing monthly fee to manage the ALIGN
Costa Rica IT environment as specified above. INVISIBLE IT
will utilize the first two months to validate what resources
will be required to achieve a "steady state" IT environment
in Costa Rica.
(ii) The first month's payment of $100,000 to INVISIBLE IT is due
upon signature date of the contract. ALIGN will remit to
INVISIBLE IT monthly fees of $100,000 in advance of each
subsequent month's service (i.e. December 11, 2002 and
January 11, 2003).
ALIGN agrees to reimburse INVISIBLE IT for all travel related expenses incurred
by INVISIBLE IT employees when required to travel in support of providing the
above services. Travel to/from Costa Rica and living expenses in Costa Rica by
INVISIBLE IT staff during the initial 90 day period will be the responsibility
of INVISIBLE IT. INVISIBLE IT must obtain written approval from ALIGN for any
additional travel on ALIGN's behalf.
ALIGN agrees to reimburse INVISIBLE IT for incidental expenses incurred in the
normal course of business (e.g. obtaining replacement part at nearby electronics
store, etc.), provided that ALIGN views the expenses as reasonable.
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G. SERVICE GUARANTEE AND DISENGAGEMENT POLICY.
INVISIBLE IT will adhere to all service levels agreed to by both parties. If
ALIGN is dissatisfied with the service provided by INVISIBLE IT, the agreement
may be terminated with 30 days written notice.
During this time, INVISIBLE IT will provide uninterrupted service and guarantee
a smooth transition of the IT Department back to ALIGN or another third party
designate. INVISIBLE IT will provide ALIGN all relevant documentation and will
assist in the recruitment of new staff if requested.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and year
first written above.
ALIGN TECHNOLOGY, INC. INVISIBLE IT, INC.
/s/ Jon Fjeld /s/ Chris Moore
------------------------------------ ------------------------------------
By (Sign) By (Sign)
Jon Fjeld, Ph.D. Chris Moore
Vice President of Technology Chief Executive Officer
11/7/02 11/2/02
------------------------------------ ------------------------------------
Date Date
EIN: 01-0670993
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[LOGO OF INVISIBLE IT]
ATTACHMENT A
INVISIBLE IT ACTION PLAN TO OPERATE IT FOR
ALIGN COSTA RICA
The following action plan outlines Invisible IT's approach to managing Align
Technology's IT infrastructure in Costa Rica. Based on our initial assessment,
we believe that the transition involves three phases lasting approximately 3
months: Phase I should be completed in approximately 30 days from agreed upon
start date; Phase II should be completed within approximately 60 days; Phase III
should be completed in about 90 days. After we perform the on site assessment in
Costa Rica, Invisible IT may determine that the timing will need to be adjusted.
PHASE I:
Place Expert IIT and other personnel to execute plan in Costa Rica
1. Resolve internal network speeds
2. Resolve case transfer speeds (install transfer servers)
3. Phone System
a. Install Call Manager
b. Configure and install Cisco IP phones
4. Implement ADS
5. Evaluate existing staff
6. Recruit local staff
7. Stabilize critical systems
8. Establish Costa Rica/Santa Clara IT management reporting
PHASE II:
1. Email - Migrate to Exchange 2000
2. Back-ups
a. Install, configure and implement
b. High level of urgency (very complex)
3. Implement Infonet WAN link for voice
4. Rationalize LAN
a. Software version
b. Hardware configuration
c. VLAN configuration
d. QoS
5. Implement monitoring
6. Hire local staff
7. Evaluate and make recommendation regarding storage requirements
8. Evaluate cable and data center infrastructure
PHASE III:
1. Telecom/networking optimization
a. Determine adequate number of PRI lines for growing office
b. Assess current agreements with RACSA
c. Packet shaper analysis - traffic prioritization
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2. Desktop level set
a. Standardization for resilient desktop environment
b. Establish standard for efficient means of installing and
maintaining identical machines - install RIS
3. Establish Help Desk for Costa Rica
a. Bi-lingual required
b. Implement trouble ticketing system
4. Implement redundancy of video/data networking between CR and SC --
Infonet
5. Establish Call Center functionality
6. Complete hiring of local team
a. Continued evaluation of existing staff
7. Evaluate available equipment (computers, networking gear, etc.)
a. Identify and procure spares
8. Establish local remote access capabilities - VPN
9. Identify satellite back-up options - moving case data
10. Record asset management information with help of Finance
11. Confirm agreements with vendors for maintenance, service, etc.
Document.
a. HP/Compaq
b. Microsoft
c. Cisco
d. Infonet
e. RACSA
f. Checkpoint firewall (Nokia appliance)
g. Other - VARs, Storage, etc.
12. Procurement - Ensure efficiency; save money
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[LOGO OF INVISIBLE IT]
SCHEDULE A-1
BASIC IT INFRASTRUCTURE SUPPORT SERVICES
This Schedule is made pursuant to the Master Professional Services
Agreement (the "Agreement"), dated 5/20/02, by and between Invisible IT Inc.
("INVISIBLE IT") and Align Technology, Inc. ("ALIGN").
A. DESCRIPTION OF SERVICES AND SPECIFICATIONS
i. INVISIBLE IT shall provide support for computer and network
hardware, software, operation and maintenance and related
operational services at ALIGN's 851 Martin Avenue campus facility.
Support shall be provided as needed during normal business hours
with critical component support via pager on a 7 days per week, 24
hours per day basis.
ii. The primary purpose of support consists of the physical care
and maintenance of ALIGN's desktops, servers, disk arrays and
network equipment located within the Martin Avenue campus and data
center operations including but not limited to disk data backups,
firmware and software upgrades, and other mutually agreed-upon
operational support activities. Physical care and maintenance
shall include the repair or replacement and scheduled upgrades
(e.g. processors, memory, disks, etc.) of hardware and/or other
components furnished by ALIGN.
iii. This agreement covers the support and maintenance of the
following ALIGN information technology (IT) infrastructure
components.
. Network
. Internet Connectivity
. LAN (Santa Clara)
. WAN Connectivity (up to routers in remote sites)
. Web Infrastructure
. Hosting (Web servers)
. Bandwidth
. Operations
. Desktop Support & Architecture
. Santa Clara (all)
. World wide (if standard)
. Services
. Email
. File storage
. DNS
. Backups (Santa Clara & remote)
. Database
. Imagining
. Security
. Desktop
. Servers
. Network (LAN, WAN & web)
. Help desk
. Triage & dispatch
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. Telephony
. PBX & stations
. Voice mail
. Customer service queues
. Telco/circuits
. VoIP
. Mfg & JDE computers/infrastructure
. HW & OS
. Worldwide (if standard)
. Monitoring & Reports
. Real-time metrics
. Network
. Server data
. Failures & downtime
. Application (minimal go, no-go monitors)
INVISIBLE IT shall provide written reports to ALIGN that documents any and all
equipment replaced and/or repaired by INVISIBLE IT.
In addition, the IT Support team will develop a Managed Hardware Operation when
resources permit. MHO is the proactive management of parts and components
required for the efficient operation of ALIGN's Martin Avenue campus. INVISIBLE
IT will develop, maintain and manage an inventory list of recommended spare
parts and accessories to be kept on hand in the facility. INVISIBLE IT will
assist in the procurement of or act as a vendor for the purchase of equipment as
recommended and needed for the Data Center operation.
Similar to the Managed Hardware Operation, through the use of excess resources,
INVISIBLE IT will recommend to ALIGN improvements that will result in enhanced
reliability and productivity of the ALIGN facility and IT infrastructure.
iv. The IT Support service of hardware does not include:
(a) Purchase of equipment of any nature. ALIGN is responsible for
the cost related to purchase equipment and accessories under
this support agreement.
(b) Software maintenance will be provided by ALIGN.
(c) Special projects except those that are mutually agreed and can
be accomplished within the Level of Service stipulated below.
(d) Major upgrade or plant retrofitting.
B. LEVEL OF SERVICE.
INVISIBLE IT will provide a leveraged staff that will cover then following skill
areas and experience levels. Initial service to be provided will be equivalent
to or exceed service levels and content of those provided by ALIGN internal IT
services. INVISIBLE IT will manage the definition and migration to standard
supported services in all the following areas:
1) Account Mgr
2) PC Desktop Admin (Includes all standard productivity applications
e.g. Word, Excel, Visio & etc.
3) Peripherals (pda's, blackberry's, cell phones, etc.)
4) Printers and Print Servers
5) Desktop Admin (Phone)
6) Remote User support (migration to standard configurations)
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7) LAN Admin
8) WAN Admin
9) NT Server Admin (+Unix)
10) Production Unix Servers
11) Security (Desktop, Server, Network)
12) DBA
13) Asset and license management (migration)
C. RESPONSE TIME.
INVISIBLE IT will respond to emergency service requests from valid Align
Technology members employees or alarms from hardware failures by having
personnel on site at the ALIGN Santa Clara, CA campus to begin repair within one
(1) hour of request/alarm between the hours of 7 AM and 7 PM daily and within no
more than two (2) hours for requests/alarms received during other hours.
D. TERM.
This Schedule, services and fees are to be in effect beginning May, 2002,
through May 31, 2003. Services and fees described herein are subject to
quarterly review by both parties to determine if adjustments are appropriate and
to amend this schedule if appropriate.
E. HIRING OF FORMER ALIGN EMPLOYEES.
This Schedule modifies the mutual "no-hire" clause in the Agreement for those
employees that became INVISIBLE IT employees as part of the outsourcing
transition agreement. INVISIBLE IT grants ALIGN an option to rehire said
employees without any liability to INVISIBLE IT in the event that the Agreement
is terminated, for any reason.
F. PAYMENT AND DELIVERY.
The services provided under this schedule are fixed fee to be remitted as
follows:
(i) INVISIBLE IT shall provide the services listed above for a
fixed monthly fee of $175,000 per month.
(ii) At the signing of this Schedule, ALIGN will remit to INVISIBLE
IT an initial deposit of $175,000 (one month's fee).
(iii) The first month's payment of $175,000 is due upon signature
date of the contract, will be remitted by ALIGN to INVISIBLE
IT in advance of services rendered and such payment will be
credited against the final month's service.
ALIGN agrees to reimburse INVISIBLE IT for all travel related expenses incurred
by INVISIBLE IT employees when required to travel in support of providing the
above services. INVISIBLE IT must obtain written approval from ALIGN prior to
any travel on ALIGN's behalf.
This Schedule shall be attached to and incorporated into the Agreement, and is
subject to all the terms and conditions of the Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and year
first written above.
ALIGN TECHNOLOGY, INC. INVISIBLE IT, INC.
/s/ Jon Fjeld /s/ Donald C. "Smokey" Wallace
-------------------------- ------------------------------
By (Sign) By (Sign)
Jon Fjeld Ph.D. Donald C. "Smokey" Wallace
Sr. Vice President of Engineering Sr. Vice President
5/20/02 5/20/02
-------------------------- ------------------------------
Date Date
EIN: 01-0670993
Master Services Agreement- Schedule A-1
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[LOGO OF INVISIBLE IT]
MASTER PROFESSIONAL SERVICES AGREEMENT
INIVISIBLE IT, INC.
This Master Software Professional Services Agreement (the "Agreement") is made
and entered into as of May 20, 2002 (the "Effective Date"), by and between
INVISIBLE IT, INC., a Delaware corporation ("INVISIBLE IT"), and ALIGN
TECHNOLOGY, INC., a Delaware corporation ("ALIGN").
In consideration of the covenants and conditions hereinafter set forth, ALIGN
and INVISIBLE IT agree as follows:
1. Services. INVISIBLE IT shall perform services to be assigned to ALIGN as
per Section 4 of this Agreement that are described on the Schedules as
may be attached hereto from time to time by mutual written agreement of
the parties (the "WORK") in accordance with the terms and conditions of
this Agreement, and on the price, delivery dates and specifications
described in the applicable Schedule for the WORK. The Schedules shall
be in the form attached hereto and shall be signed by both parties,
consecutively numbered (i.e., Schedule A-1, A-2, A-3, etc.), and
attached to this Agreement. INVISIBLE IT is not obligated to perform any
WORK hereunder and ALIGN has not contracted for any WORK unless and
until a Schedule is executed by both parties and attached hereto.
2. Payment. ALIGN shall pay INVISIBLE IT for the WORK as described on the
applicable Schedule for such WORK. For fixed fee WORK ALIGN agrees to
remit payment in advance of the performance of such WORK or on other
terms agreeable to both parties. For hourly WORK, VISIBLE IT agrees to
submit to ALIGN, invoices with a brief description of the WORK
performed, total time expended and amounts due to INVISIBLE IT on
bi-weekly intervals and ALIGN agrees to remit payment to INVISIBLE IT
within thirty (30) days of receipt of a INVISIBLE IT invoice for hourly
WORK.
3. Non-Disclosure. Each party expressly undertakes to retain in confidence
all information and know-how transmitted by the disclosing party to the
receiving party and that has been designated as proprietary and/or
confidential or that, by the nature of the circumstances surrounding the
disclosure, ought in good faith to be treated as proprietary and/or
confidential ("Confidential Information"), and the receiving party will
make no use of such information and know-how except under the terms and
during the existence of this Agreement. Each party's obligation under
this Section 3 with respect to any particular information shall extend
to the earlier of such time as such information is publicly available
through no fault of the receiving party for five (5) year following
termination of this Agreement. INVISIBLE IT certifies that it will
comply with all applicable provisions of Insurance Portability and
Accountability Act (HIPAA).
4. Ownership of WORK; Assignment of Rights to ALIGN.
(a) ALIGN agrees that all systems, programs, INVISIBLE IT specifications
and other materials and hardware, and all intellectual property
incorporated therein (collectively referred to as "INVISIBLE IT
Information") owned by INVISIBLE IT or licensed to INVISIBLE IT by
third parties prior to the execution of this Agreement and used in
conjunction with the Services for ALIGN shall continue to belong to
INVISIBLE IT or their third party licensors. To the extent that such
INVISIBLE IT Information is incorporated into any work product or
deliverable developed by INVISIBLE IT hereunder, INVISIBLE IT hereby
grants to ALIGN a perpetual, irrevocable, nonexclusive worldwide
royalty-free right to use, execute, reproduce, display, perform,
distribute, modify, and prepare derivative works (collectively,
"Distribute") and have Distributed, to and by third parties, such
INVISIBLE IT Information in conjunction with such work product or
deliverable, and modified version thereof.
(b) INVISIBLE IT retains the rights of ownership of any system
administration utilities developed for ALIGN to be used or granted
to any other INVISIBLE IT client or customer provided they: (i) do
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[LOGO OF INVISIBLE IT]
not divulge any Confidential Information of ALIGN; and (ii) will not
be granted or issued or used by any direct competitor of ALIGN
(listed on Schedule B hereto and includes any orthodontic or dental
companies, as updated from time to time by mutual written consent)
during the term of this Agreement. Such system administration
utilities be considered INVISIBLE IT Information and licensed to
ALIGN as set forth in Section 4(a).
(c) If INVISIBLE IT agrees in writing as to a particular deliverable for
WORK for ALIGN, then such WORK shall be deemed specially ordered and
commissioned by ALIGN and may be incorporated in existing ALIGN
works as a compilation or collective work. In that case, INVISIBLE
IT agrees that all copyrights in the WORK shall be owned by ALIGN
and the WORK shall be a "work made for hire" for copyright purposes
(the "ASSIGNED WORK").
(d) INVISIBLE IT hereby assigns to ALIGN, its successors and assigns,
all rights, title and interest in and to the ASSIGNED WORK
including, without limitation, the following:
(i) any U.S. copyrights that INVISIBLE IT may possess or acquire
in the ASSIGNED WORK and all copyrights and equivalent rights
in the ASSIGNED WORK throughout the world, including all
renewals and extensions of such rights that may be secured
under the laws now or hereafter in force and effect in the
United States of America or in any other country or countries;
(ii) all rights in and to any inventions, ideas, designs, concepts,
techniques, discoveries, or improvements, whether or not
patentable, embodied in the ASSIGNED WORK or developed in the
course of INVISIBLE IT's creation of the ASSIGNED WORK,
including but not limited to all trade secrets, utility and
design patent rights and equivalent rights in and to such
inventions and designs throughout the world regardless of
whether or not legal protection for the ASSIGNED WORK is
sought;
(iii) any documents, magnetically or optically encoded media, or
other materials created by INVISIBLE IT as part of the
ASSIGNED WORK under this Agreement; and
(iv) the right to sue for infringements which may occur before the
date of this Agreement, and to collect and retain damages from
any such infringements from the ASSIGNED WORK.
(e) At ALIGN's expense, INVISIBLE IT shall execute and deliver such
instruments and take such other action as may be requested by ALIGN
to perfect or protect ALIGN's rights in the ASSIGNED WORK and to
carry out the assignments contemplated in subparagraph (b) of this
section. In this regard, INVISIBLE IT agrees to cooperate with ALIGN
in the filing and prosecution of any copyright or patent
applications that ALIGN may elect to file on the ASSIGNED WORK or
inventions and designs relating to the ASSIGNED WORK. ALIGN
acknowledges that INVISIBLE IT has taken no action to assist in the
registration of the copyrights or the ASSIGNED WORK and will do so
only as and when requested by ALIGN.
5. INVISIBLE IT Warranties. INVISIBLE IT warrants as follows:
(a) To the best of its knowledge, the ASSIGNED WORK as delivered to
ALIGN does not infringe any copyright, patent, trade secret, or
other proprietary right held by any third party;
(b) The ASSIGNED WORK will meet the specifications listed in the
applicable Schedule;
(c) The ASSIGNED WORK will be created by employees of INVISIBLE IT
within the scope of their employment and under obligation to
assign inventions to INVISIBLE IT, or by independent contractors
under written obligations to assign all rights in the ASSIGNED
WORK to INVISIBLE IT;
(d) The services provided by INVISIBLE IT shall be performed in a
professional manner and shall be of a high grade, nature, and
quality; and
(e) To the best of its knowledge, the WORK and the ASSIGNED WORK
performed by INVISIBLE IT under this Agreement will be in
compliance with all applicable U.S. laws and regulations.
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(f) No other warranty or representation, either express or implied,
is included or intended in INVISIBLE IT proposals, agreements or
reports.
(g) Disclaimer of Warranties. INVISIBLE IT HEREBY DISCLAIMS ALL
IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION ALL IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. ALIGN SHALL HAVE SOLE RESPONSIBILITY FOR THE TESTING,
QUALITY ASSURANCE, AND USE OF ALL WORK, ALL DELIVERABLES, IF ANY,
AND ALL OTHER WORK PRODUCT PROVIDED UNDER THIS AGREEMENT.
(h) Limitation of Liability. IN NO EVENT SHALL INVISIBLE IT OR ALIGN
BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
WHETHER ARISING IN CONTRACT OR IN TORT OR OTHERWISE (INCLUDING
WITHOUT LIMITATION NEGLIGENCE OR OTHER LIABILITY). INVISIBLE IT'S
LIABILITY FOR DAMAGES RESULTING FROM ANY BREACH OF ITS
OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE ARISING FROM ITS
SERVICES IN CONNECTION HEREWITH SHALL NOT EXCEED, AND ARE
EXPRESSLY LIMITED TO, THE LESSER OF (i) THE AMOUNT OF COVERAGE,
IF ANY, PROVIDED BY THE INSURANCE COVERAGE EXTENDED BY INVISIBLE
IT TO ALIGN AS AN ADDITIONALLY INSURED AND (ii) THE AGGREGATE
AMOUNT PAID BY ALIGN UNDER THIS AGREEMENT. ALIGN'S LIABILITY FOR
DAMAGES RESULTING FROM ANY BREACH OF ITS OBLIGATIONS UNDER THIS
AGREEMENT OR OTHERWISE ARISING UNDER THIS AGREEMENT SHALL NOT
EXCEED (i) FOR BREACHES OF PAYMENT OBLIGATIONS, THE ACTUAL AMOUNT
OWED BY ALIGN PLUS ANY REASONABLE INTEREST ON LATE PAYMENTS OR
(ii) FOR BREACHES OF OTHER OBLIGATIONS, AN AMOUNT NO GREATER THAN
THE TOTAL AMOUNT PAID BY ALIGN UNDER THIS AGREEMENT OR THE THE
AMOUNT OF COVERAGE, IF ANY, PROVIDED BY THE INSURANCE COVERAGE
EXTENDED BY INVISIBLE IT TO ALIGN AS AN ADDITIONALLY INSURED,
WHICHEVER IS LESS.
IN NO EVENT WILL ANY PARTICULAR CLAIM EXCEED THE LIMITS OF
INVISIBLE IT'S INSURANCE AND IN NO EVENT WILL THE CUMULATIVE
LIABILITY FOR ALL CLAIMS EXCEED THE LIMITS OF INVISIBLE IT'S
INSURANCE LIMIT.
6. Indemnity.
6.1 INVISIBLE IT.
INVISIBLE IT agrees to indemnify, pay the defense costs of, and hold
ALIGN and its successors, officers, directors and employees harmless
from any and all actions, causes of action, claims, demands, costs,
liabilities, expenses and damages (including attorneys' fees) arising
out of, or in conjunction with (i) any claim for bodily injury, death,
or property damage to the extent caused by INVISIBLE IT in connection
with the WORK, (ii) any claim that the WORK infringes any copyright,
patent, trade secret, trademark, or other legal right of any third
party, or (iii) any other claim that, if true, would constitute a breach
of INVISIBLE IT's warranties set forth in Section 5 above (collectively,
INVISIBLE IT Claims").
6.2 ALIGN.
ALIGN agrees to indemnify, pay the defense costs of, and hold INVISIBLE
IT and its successors, officers, directors and employees harmless from
any and all actions, causes of action, claims, demands, costs,
liabilities, expenses and damages (including attorneys' fees) arising
out of, or in conjunction with (i) any claim for bodily injury, death,
or property damage to the extent caused by ALIGN in connection with this
Agreement, or (ii) any claim that the ALIGN-contributed intellectual
property to the WORK infringes any copyright, patent, trade secret,
trademark, or other legal right of any third party (collectively "ALIGN
Claims").
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6.3 Process.
(a) If any action shall be brought against ALIGN or INVISIBLE IT for
a INVISIBLE IT Claim or a ALIGN Claim, respectively, the
indemnified party shall promptly notify the indemnifying party in
writing, specifying the nature of the action and the total
monetary amount sought or other such relief as is sought therein.
The indemnified party shall cooperate with the indemnifying party
at the indemnifying party's expense in all reasonable respects in
connection with the defense of any such action. The indemnifying
party may upon written notice thereof to the indemnified party
undertake to conduct all proceedings or negotiations in
connection therewith, assume the defense thereof, and if it so
undertakes, it shall also undertake all other required steps or
proceedings to settle or defend any such action, including the
employment of counsel which shall be satisfactory to the
indemnified party, and payment of all expenses. The indemnified
party shall have the right to employ separate counsel and
participate in the defense thereof. The indemnifying party shall
reimburse the indemnified party upon demand for any payments made
or loss suffered by it at any time after the date hereof, based
upon the judgment of any court of competent jurisdiction or
pursuant to a bona fide compromise or settlement of claims,
demands, or actions, in respect to any damages to which the
foregoing relates.
(b) If any WORK OR ASSIGNED WORK furnished hereunder is in any action
held to constitute an infringement and its use is enjoined,
INVISIBLE IT shall immediately and at its expense:
(i) procure for ALIGN the right to continue use, sale, and
marketing of the WORK or the ASSIGNED WORK; or
(ii) replace or modify the WORK or the ASSIGNED WORK with a
version of the WORK or the ASSIGNED WORK that is
non-infringing.
If (i) or (ii) are not available to INVISIBLE IT, INVISIBLE IT shall
refund to ALIGN all amounts paid to INVISIBLE IT by ALIGN hereunder for
the particular WORK and/or for the particular ASSIGNED WORK.
6.4 Survival.
The foregoing indemnity provision of this Section 6 shall survive any
termination or expiration of this Agreement for a period of three (3)
years.
7. Termination.
(a) This Agreement shall commence as of the Effective Date and shall
remain in force in perpetuity unless earlier terminated as set
forth in Section 7(b).
(b) Termination for Cause. Either party may suspend performance
and/or terminate (A) this Agreement or (B) a particular Schedule
under this Agreement immediately upon written notice at any time
if:
(i) The other party is in material breach of any material
warranty, term, condition or covenant of this Agreement,
other than those contained in Section 3, and fails to cure
that breach within thirty (30) days after written notice
thereof; or
(ii) The other party is in material breach of Section 3.
(c) ALIGN shall have the right to cancel any Schedule pursuant to the
terms of such Schedule. Such terms may include cancellation fees,
as the parties may agree, for a termination without cause. In the
event ALIGN cancels a Schedule, ALIGN will provide INVISIBLE IT
written notice of such cancellation. Upon receipt of such notice,
INVISIBLE IT will discontinue all work thereunder. Except in
cases of cancellation for cause as specified in Section 7(b) of
this Agreement, ALIGN will pay for all work performed by
INVISIBLE IT up until the date of receipt of the cancellation
notice and cancellation fees, if any, specified in such Schedule.
In the event of cancellation of a Schedule, upon request by
ALIGN, INVISIBLE IT agrees to turn over to ALIGN all Assigned
Work with respect to such Schedule within ten (10) days of
payment of all outstanding amounts.
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(d) In the event of termination or expiration of this Agreement for
any reason, Sections 3, 4, 5, 6 (as specified 6.4), 9, and 10
shall survive termination.
8. Notices.
All notices and requests in connection with this Agreement shall be
deemed given as of the day they are received either by messenger,
delivery service, or in the United States of America mails, postage
prepaid, certified or registered, return receipt requested, and
addressed as follows:
NOTICES TO INVISIBLE IT:
INVISIBLE IT, INC.
850 Center Drive
Palo Alto, CA 94301
Attn: Christopher W Moore, CEO & President
Copy to:
John Sellers
Venture Law Group
2775 Sand Hill Road
Menlo Park, CA 94025
(650) 854-4488 Fax:(650) 233-8386
NOTICES TO ALIGN:
ALIGN TECHNOLOGY, INC.
851 Martin Avenue
Santa Clara, CA 95050
Attn: Stephen J. Bonelli, CFO & VP Finance
or to such other address as the party to receive the notice or request
so designates by written notice to the other.
9. Arbitration.
(a) Except for injunctive relief sought pursuant to Section 3(c), all
disputes arising out of or in connection with this Agreement,
including any questions regarding its existence, validity, breach
or termination, shall be finally settled by binding arbitration
under the CPR Non-Administered Arbitration Rules ("Rules") of the
CPR Institute for Dispute Resolution ("CPR") by a sole arbitrator
in accordance with said Rules. The arbitration shall be governed
by the United States Arbitration Act, 9 U.S.C. Section 1-16.
(b) Both parties shall agree on a sole arbitrator within 30 days.
Should the two parties fail, within the above time-limit, to
reach agreement on the arbitrator, the arbitrator shall be
appointed by CPR under the applicable Rules ("Appointing
Authority"). If there are two or more defendants, any nomination
of an arbitrator by or on behalf of such defendants must be by
joint agreement between them. If such defendants fail, within the
time-limit fixed by the Appointing Authority, to agree on such
joint nomination, the proceedings against each of them must be
separated. The arbitrator must have sufficient experience in the
software industry and in international business transactions.
(c) Notwithstanding the Rules, the parties (i) shall submit their
dispute to the arbitrator within 2 months following their
decision that they could not resolve their dispute, (ii) each
party shall have no more than 2 days to present its case and
(iii) the arbitrator shall be instructed to render its decision
within 30 days following the conclusion of each party's
presentation.
(d) The arbitrator shall specify the basis for its decision. The
arbitrator shall not award any punitive damages. The decision of
the arbitrator shall be considered as a final and binding
resolution of the
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dispute, shall not be subject to appeal and may be entered as a
judgment in any court of competent jurisdiction.
(e) The seat of arbitration shall be Santa Clara, California. The
procedural law of this place shall apply where the Rules are
silent, however no jury trial shall be allowed in the arbitration
proceedings and discovery shall be limited as set forth in the
Rules.
(f) The whole arbitration procedure shall be executed pursuant to a
strict non disclosure agreement signed by the parties and the
arbitrators agreeing to conduct such proceedings and maintaining
in confidence all confidential information or trade secrets
disclosed or produced in the course thereof. All press releases
or public statements regarding the status of such proceedings
shall be prepared jointly and only by the parties.
10. Miscellaneous.
(a) INVISIBLE IT is an independent contractor for ALIGN, and nothing
in this Agreement shall be construed as creating an
employer-employee relationship, a partnership, or a joint venture
between the parties.
(b) In the event taxes are required to be withheld on payments made
hereunder by any U.S. (state or federal) or foreign government,
ALIGN may deduct such taxes from the amount owed INVISIBLE IT and
pay them to the appropriate taxing authority. ALIGN shall in turn
promptly secure and deliver to INVISIBLE IT an official receipt
for any taxes withheld. ALIGN will use reasonable efforts to
minimize such taxes to the extent permissible under applicable
law.
(c) This Agreement shall be construed and controlled by the laws of
the State of California, Northern District. The federal and state
courts within the State of California, Northern District, shall
have exclusive jurisdiction to adjudicate any dispute arising
with this Agreement and INVISIBLE IT hereby consents to such
jurisdiction. In any action or suit to enforce any right or
remedy under this Agreement or to interpret any provision of this
Agreement, the prevailing party shall be entitled to recover its
costs, including reasonable attorneys' fees.
(d) This Agreement does not constitute an offer by ALIGN and it shall
not be effective until signed by both parties. This Agreement
constitutes the entire agreement between the parties with respect
to the WORK and all other subject matter hereof and merges all
prior and contemporaneous communications. It shall not be
modified except by a written agreement dated subsequent to the
date of this Agreement and signed on behalf of INVISIBLE IT and
ALIGN by their respective duly authorized representatives. Any
Schedules attached to this Agreement must be signed on behalf of
INVISIBLE IT and ALIGN by their respective duly authorized
representatives. Schedules shall not act to amend this Agreement.
The terms and conditions of this Agreement shall take precedence
over any conflicting terms and conditions in any Schedule;
provided, however, to the extent the terms and conditions of a
particular Schedule so conflict with the terms and conditions of
this Agreement, the terms and conditions of the Schedule shall
take precedence only with respect to the Services under that
Schedule.
(e) This Agreement may be assigned by ALIGN or by INVISIBLE IT with
mutual prior written approval. Except as otherwise provided, this
Agreement shall be binding upon and inure to the benefit of the
parties' successors and lawful assigns.
(f) ALIGN and INVISIBLE IT mutually agree that they will use
reasonable commercial efforts to not recruit and hire employees
of the other party, assigned to work under this Agreement during
their assignment under the applicable Schedule of this Agreement.
Should either party solicit and hire an employee form the other,
The hiring party shall pay a one-time, liquidated damage fee
equal to fifty-five percent (55%) of such employee's offered
annual salary. Each party agrees to pay any such employment fee
within ten (10) days following the employee's commencement of
employment.
(g) A service charge of one percent (1%) per month or the highest
rate allowed by law shall apply to all overdue amounts owed to
Supplier. ALIGN acknowledges that unpaid invoices may result in
the interruption of services provided.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
Effective Date written above.
ALIGN TECHNOLOGY, INC. INVISIBLE IT, INC.
/s/ Jon Fjeld /s/ Donald C. "Smokey" Wallace
----------------------- --------------------------------
By (Sign) By (Sign)
Jon Fjeld Ph.D. Donald C. "Smokey" Wallace
Vice President of Technology Sr. Vice President
5/20/02 5/20/02
------------------------ -------------------------------
Date Date
EIN: 01-0670993
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SCHEDULE B
(LIST OF DIRECT COMPETITORS OF ALIGN)
If blank, and initialed then none at this time. ______ALIGN ______INVISIBLE IT
Any orthodontic and/or dental company
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