20-F










EXHIBIT 4.15  






	
   

  	
   

  
	
  Master Services Agreement

  	
  Number: SDCA025     

  
	
  

  



This Master
Services Agreement (“Agreement”) effective as of 1 October 2002 (“Effective
Date”) is between BluePhoenix Solutions Nordic ApS, CVR-no. 26123909,
(“BluePhoenix”) and SDC Udvjkling A/S, CVR-no. 25306724 (“Customer”) with its
principal offices at Borupvang 1A, 2750 Ballerup, Denmark. BluePhoenix will
provide to the Customer the services (“Services”) described on a Scope of Work
(“SOW”) entered into between the parties and the Customer has agreed to accept
these Services, upon the following terms and conditions.


1. Preamble. On even
date herewith BluePhoenix has acquired certain assets, including all employees,
of SDC-FinansSystem  A/S which is an affiliate of the Customer. The parties
will gradually and as early as possible adapt their working and administrative
procedures to better reflect that the relationship is no longer between
affiliated entities.


2. Scope of Services.
BluePhoenix will supply to Customer the Services at the location, rates and for
the duration specified in the SOW, provided, however, that no Services may be
initiated unless the Customer has issued a purchase order to BluePhoenix
specifying the Services or project to be delivered, the estimated number of
hours and the delivery date. BluePhoenix shall within 5 working days issue a
purchase order confirmation. If BluePhoenix has any objections or reservations
to the purchase order it shall notify Customer thereof and the Parties shall
negotiate in good faith and seek to agree on the specification, the estimated
number of hours and delivery date. If no agreement is reached, the purchase
order shall be considered withdrawn.


3. Coordinators.
Each party will appoint a coordinator who will manage the provision of
Services.


4. Term and Termination. This
Agreement will commence on the Effective Date and will continue until December
31, 2004, unless extended in accordance with Section 7 of the SOW or previously
terminated as provided in this Section 4. Either party may terminate this Agreement
and/or any SOW only in the event of material breach hereof and only after the
following procedure has been completed. The party contemplating termination
shall give written notice to the other specifying the material breach and
informing the other party of the intent to terminate and providing a remedy
period of thirty (30) days after receipt of the notice. If the material breach
has not been remedied after thirty (30) days, the matter shall be escalated to
the level of the chairmen of the Board of Directors of the parties who shall
attempt in good faith to resolve the disagreement. If such resolution has not
been accomplished within fifteen (15) days, then the party contemplating
termination shall initiate mediation by a sole mediator under the Rules of
Procedure for Voluntary Mediation of the Danish Institute of Arbitration. If
mediation does not result in agreement on or settlement of the matter within a
period of thirty (30) days, then the party intending to terminate may effect
the termination. Findings of the sole mediator shall not be binding on an
arbitration tribunal established under Section 15 hereof, unless both parties
endorse such findings. Upon termination of this Agreement, Sections 6, 7, 8, 9,
11, 12, 13, 14 and 15 shall survive.


5. Acceptance and Remedy.
All Services shall comply with the purchase order specification to which the
Services refer. All Services will, in relation to each purchase order, be
accepted or rejected in writing by the Customer without undue delay and in no
event later than five (5) working days, or such other testing period as may be
specified in the purchase order, after BluePhoenix has notified the Customer
that delivery has taken place. If the Customer has not issued its written
acceptance or a reasoned notice of non-acceptance within five (5) working days,
or such other testing period as may be specified in the purchase order or
otherwise agreed, the Services shall be deemed accepted. The Customer may
withhold its acceptance only in the event of substantial non-conformity between
the purchase order specification and the Services, which are attributable to
BluePhoenix, their subcontractors, or which under the ordinary rules of Danish
law would fall under the seller’s risk. In the event that insubstantial
non-conformities are found in connection with the acceptance testing, then such
non-conformities shall be recorded in writing by the parties’ coordinators, and
subsequently remedied according to an agreed time table. 


6. Terms of Payment.
Customer agrees to pay BluePhoenix the fees and expenses specified in the SOW.
Unless otherwise specified on an SOW, BluePhoenix will submit to Customer
detailed invoice(s), quoting the SOW Number, the purchase order number, monthly
in arrears. All payments are due fifteen (15) days of receipt of invoice. Fees are inclusive of any
taxes applicable to the Services except for VAT (“moms”) or expenses accepted in writing by Customer,
BluePhoenix will separately list


1










any applicable
taxes on the invoices. If Customer does not pay the invoices when due,
BluePhoenix may charge interest at the discount rate of the Danish Central Bank
plus 4%.


7. Warranties. For
the initial one (1) year period after delivery in accordance with each
individual purchase order, Bluephoenix warrants that the Services: (a) will be
performed by competent staff or subcontractors exercising a reasonable level of
skill appropriate to their grade, and (b) the Services and any deliverables
will not infringe the intellectual property rights of any third party.
Customer’s sole remedy for any breach of the foregoing warranty (b) is for
BluePhoenix to repair or replace the infringing Services to make them
non-infringing; if in BluePhoneix’s reasonable opinion. It is unable to make
the Services or deliverables non-infringing Customer’s sole remedy will be that
BluePhoenix will refund the amount paid for the portion of the Services or
deliverables that are infringing and will in either event reimburse any damages
or costs (including reasonable attorneys’ fees) paid or payable by Customer due
to such infringement. The limitation of liability contained in the first
sentence of Section 8 shall not apply so claims under the foregoing warranty
(b). EXCEPT AS EXPRESSLY STATED HEREIN, THE WARRANTIES STATED IN THIS CLAUSE
ARE EXCLUSIVE AND THERE ARE NO WARRANTIES EXPRESS OR IMPLIED MADE BY EITHER
PARTY, INCLUDING BUT NOT LIMITED TO ANY CONDITION FOR FITNESS FOR PARTICULAR
PURPOSE OR MERCHANTABILITY.


8. Limitation of Liability. Except
in cases of BluePhoenix’s willful misconduct or gross negligence, BluePhoenix’s
liability for any cause of action arising under or in connection with the
Agreement or otherwise (whether arising in tort, contract, or otherwise) will
be limited to the greater of US $10,000 or the amount of fees Customer actually
paid for the Services under the purchase order giving rise to the causes of
action. Under no circumstances will BluePhoenix be liable for any special
punitive or consequential damages arising out of or in connection with this
Agreement or otherwise, including liability for lost profile, business
interruption or loss of business. This limitation of liability will in no way
limit any cause of action that Customer has against any subcontractor. 


9. Ownership. BluePhoenix
owns all right, title, and interest in and to its technology as enhanced during
the term of this Agreement. For the avoidance of doubt, BluePhoenix
technologies do not include the IPRs specified in Clause 7 of the Business Transfer
Agreement of even date. Customer owns all right, title and interest in and to
its Applications. BluePhoenix undertakes not to incorporate any portions of
BluePhoenix or third party intellectual property into the Application beyond
what is in accordance with standard industry practice or the documentation
relating to such BluePhoenix or third party intellectual property. All of the
items prepared for Customer by Blue Phoenix shall belong to Customer. 


10. No Hiring. Each party agrees not to hire, or directly
or indirectly solicit or employ, any employee of the other who, to the first
party’s knowledge, is involved in the development, use or provision of Services
for a period of twelve (12) months after the employee ceased to be involved
as described, without the prior written consent of the other party, provided,
however, that either Party may freely solicit and/or hire any employee laid off
by the other party, and further provided that a party may upon termination for
breach in accordance with Section 4 of this Agreement freely solicit and/or
hire any employee of the other party who has performed work on the Application,
and further provided that either Party may freely solicit and/or hire any
employee who prior to October 9, 2002 has terminated his or her employment.
However, either party will not solicit such employees without having given the
other party previous notice thereof, Either Party will notify the other party if an employee
of the other party seeks employment with the first party, provided that the
notification has been approved by the employee in question. In the event of
either Party in known violation of the provisions above hires, within a period
of 12 months after the employee ceased to be involved as described above, such
shall pay liquidated damages to the other in the following amounts: (i) DKK
25,000 per commenced month of employment, plus (ii) DKK 200,000 upon failure
to dismiss and relieve (fritstille) the employee without undue delay after
notification by the other party of the breach, provided however that (iii) the
aggregate amount of liquidated damages for each employee shall not exceed DKK
400,000. Liquidated damages payable under this Section 10 shall not be cumulative
in relation to liquidated damages payable under Clause 10 of the Business Transfer
Agreement, and the Customer or an entity of the SDC Group or the Seller (as
defined in the Business Transfer Agreement) will, in relation to each employee,
only be liable to pay liquidated damages under either this Agreement or the
Business Transfer Agreement. 


11. Confidentiality.  Each party represents and warrants
that it will not disclose, use or modify Confidential information of the other
party (as defined below) and take adequate steps to protect the other party’s
Confidential Information from unauthorized disclosure or use. “Confidential
Information” is defined as information of any nature and in any form which is
disclosed by to the


2









other party, or is otherwise learned by the other
party (as a result of BluePhoenix’s providing support services, its presence at
Customer’s business premises or otherwise), and which relates in any way to such
party’s business or operations, whether tangible or intangible and in whatever
form or medium including, but not limited to, information relating to the party’s
current or contemplated operations: identity of suppliers of goods and/or services:
trade secrets (including any improvements thereto), whether in development,
prototype or finished form and whether patentable or not: computer programs and
computer aided designs; pricing; all financial, personnel, and other business
data; and unpublished or published copyrighted materials, including any improvements,
modifications, or additions to any of the above information. Nothing in this
Agreement will, or is intended to, limit BluePhoenix’s ability to develop or
enhance its products and services in any manner whatsoever, provided BluePhoenix
does not disclose or otherwise use or make available any Customer Confidential
Information.


12. Force Majeure. Neither party shall be
liable to the other party in the event of force majeure. Events of force majeure
shall mean circumstances beyond the reasonable control of the affected party.
Without limiting the generality of the foregoing, events of force majeure shall
include war, natural or nuclear disasters, strikes, fines, power or telecommunications
network outages, non-deliveries, delayed or short deliveries from subcontractors,
damage to production apparatus, computer viruses, death, incapacitation or other
inability of key resources to perform services, and import and export restrictions.
Non-deliveries, delayed or short deliveries from subcontractors shall only be deemed
force majeure if the subcontractor itself is subjected to the event of force
majeure and BluePhoenix could not reasonably have found alternative sources of
supply.


13. Changes. This Agreement may not be
changed except in writing and signed by both parties. 


14. Conflicting Terms. In the event
of any conflict, the SOW will prevail. 


15. Governing Law and Arbitration.
The validity, construction and performance of this Agreement will be governed by
the laws of Denmark. Any dispute or claim arising out of or in connection with this
Agreement, or the breach, termination or invalidity hereof, shall be settled by
arbitration in accordance with the Rules of Procedure of the Danish Institute of
Arbitration (Copenhagen Arbitration). The arbitration tribunal shall be composed
of three arbitrators. Each party shall appoint one arbitrator and the Institute
shall appoint the third arbitrator who shall chair the arbitration tribunal. If
a party has not appointed an arbitrator within 30 days of having requested or received
notice of the arbitration, such arbitrator shall be appointed by the Institute.
The place of arbitration shall be Copenhagen. The language of the arbitration shall
be English. This present Section 14 shall not preclude either party from initiating
proceedings for injunctive relief before the ordinary courts of any jurisdiction
with a view to enforcing Sections 9, 10 and 11 hereof. 




	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SDC UDVIKLING A/S

  	
   

  	
  BLUEPHOENIX SOLUTIONS NORDIC APS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
  


  	
   

  	
   

  	
  


  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
  


  	
   

  	
   

  	
  


  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
  


  	
   

  	
   

  	
  


  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  
	
   

  	
  


  	
   

  	
   

  	
  


  



3