Outsourcing Agreement

EXHIBIT 10.1


OUTSOURCING AGREEMENT FOR MANAGED SERVICES


BETWEEN


FEI Company 5350 NE Dawson Creek Drive Hillsboro, Oregon 97124


AND


ATOS ORIGIN, INC. 430 Mountain Avenue Murray Hill, New Jersey 07974


THIS AGREEMENT, effective as of 1st day of July, 2003 ("Effective Date"), sets forth the terms and conditions under which Atos Origin, Inc., a Delaware corporation ("Atos Origin") shall provide FEI Company, an Oregon corporation ("Customer"), enterprise life cycle management, midrange and mainframe data processing and other services as more fully defined in the attached and future Descriptions of Services (the "Services").


GENERAL TERMS AND CONDITIONS


1. Entire Agreement And Conflicts


These terms and conditions, the initial and any subsequent Description of Services and each and every attendant Schedule together form the entire agreement and understanding between Atos Origin and Customer regarding the subject matter of this Agreement and are intended to supersede all previous agreements and understandings between Atos Origin and Customer regarding the subject matter. Except for the sole purpose of initiating or authorizing the performance of Services by Atos Origin under a Description of Services, Atos Origin and Customer agree that any and all terms and conditions set forth in a Customer purchase order, to the extent inconsistent with this Agreement, shall be void and have absolutely no force or effect for purposes of this Agreement and any interpretation thereof. This Agreement, or any part thereof, may not be amended, or waived other than by in writing signed by all Parties hereto.


2. DEFINITIONS


a. General


Unless otherwise expressly defined herein, all referenced terms in this Agreement shall have the common meaning applied to them within the information technology services industry.


b. Specific


The following words and terms shall have the following meanings when used in this Agreement and such definitions shall apply to both singular and plural forms of any such words and terms:


"Acceptance Testing" means the continuous testing, consistent with industry practice, to be performed by Customer to reasonably establish that the software functions in accordance with its Design as set forth at Schedule 1 attached hereto.


"Agreement" means these terms and conditions, the Description of Services plus any additional Description of Services and any other additional Schedule(s) as specifically agreed to in writing between Atos Origin and Customer.


"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday, except where any such day occurs on any federal or state statutory holiday observed by Atos Origin.


"Confidential Information" means the confidential and proprietary data or information developed or acquired by either Party and as further described in Section 8.


"Description of Services" means that document as referenced throughout this Agreement which will reasonably specify those services, activities and goods to be provided by Atos Origin to Customer in addition to identifying the estimated time frames, charges and expenses payable to Atos Origin by Customer, together with such other agreements that may be entered into between Atos Origin and Customer.


"Design" means an elaboration of a functional specification prepared by Atos Origin and approved or accepted by Customer, which enumerates and describes the screens and reports that will be included in software.


"Party" or "Parties" when used in the singular means either Atos Origin or Customer and if used in the plural means both Atos Origin and Customer.


"Schedule(s)" means any one or more supplementary document(s) relating to this Agreement and which both Parties have signed.


"Supplied Software" means Atos Origin or third party developed software provided in accordance with an Atos Origin prepared or implemented design that is not Customized Software.


3. Term


This Agreement shall commence on the Effective Date of this Agreement and shall continue until 30 June 2008 (unless terminated earlier pursuant to the terms of this Agreement) ("Initial Term"); thereafter, this Agreement shall automatically renew for additional one (1) year terms (each a "Renewal Term") until terminated by either Party upon giving written notice of termination to the other Party no less than one hundred twenty (120) days prior to the end of the then- term.


4. Content


This Agreement consists of these general terms and conditions and the attached Schedules. In the event of conflict between the general terms and conditions and any term within a Schedule, the general terms and conditions shall prevail, unless otherwise expressly stated in such Schedule.


5. Charges and Payments


5.1 So long as the invoice is mailed by Atos Origin on the invoice date, payment shall be due and payable within thirty (35) days from the date of invoice. Charges for fractional parts of a month shall be prorated based on a thirty (30) day month. Fixed monthly charges for equipment and processing, if any, shall be invoiced monthly in advance. Time and Materials charges, if any, shall be invoiced in the month following service except for the minimum variable charge payments set forth in the applicable Schedule which shall be invoiced monthly in advance. Invoice amounts are not subject to cash discounts.


5.2 In the event any invoice amounts are not received within forty-five (45) days of the invoice date, and upon five (5) Business Days prior written notice of such delinquent payment(s), Atos Origin may immediately suspend service hereunder until such delinquent payment(s) is made; provided, however, that Atos Origin shall not suspend service if Customer's failure to pay arises from a good faith dispute over the payment or over whether Atos Origin has failed to meet its obligations under this Agreement so long as the basis and details for such dispute is provided in advance and in writing. If payment of all amounts owed (including all amounts invoiced but not past due) is


not received within ten (10) days of the delinquency notice, Atos Origin, in addition to its other rights hereunder, may, at its sole option, immediately terminate this Agreement for cause. So long as there is no good faith dispute relating to nonpayment that Atos Origin has been informed of in advance with the specific details in writing, Customer shall not obtain ownership rights in any related Software unless and until payment is received in full for all amounts due hereunder. Regardless, unless and until Customer's payments for related Services are past due, Customer shall maintain a fully paid, worldwide license for such impacted Software.


5.3 Intentionally omitted.


5.4 In addition to all other charges made hereunder, Customer shall pay to Atos Origin all taxes that are applicable to this Agreement or are measured directly by the payments made under it and are required to be collected by Atos Origin or paid by Atos Origin to tax authorities. This provision includes sales, use, value-added, excise and other taxes, but does not include personal property taxes or taxes on Atos Origin's net income.


5.5 Atos Origin shall provide the Services as provided in this Agreement according to the base rates and rate structure shown in the applicable Schedule and, except for any changes (directly or indirectly) to the Services or contract amendments, the monthly recurring charge (as more fully defined in the Descriptions of Services) shall be fixed for the duration of this Agreement. In the event additional services outside the scope of the Services are requested by Customer (in advance and in writing) and a rate structure is not provided herein, the Parties shall agree in writing to the rate(s) to be applied prior to such additional services being performed, otherwise Atos Origin's then current standard rate(s) shall apply. In the event an additional service is provided without prior written agreement, the Parties agree to promptly negotiate an equitable rate in good faith.


5.6 Except as otherwise provided for in the Description of Services, all expenses incurred as a result of the project which is the subject of the Description of Services, will be charged to Customer at actual cost. This includes, but is not limited to, travel, meals, lodging, and reproduction of documentation. Travel shall be consistent with Atos Origin's travel policies, as provided to Customer prior to the commencement of this Agreement, as may reasonably be amended. Travel in a private automobile, outside of normal daily travel to and from work, shall be charged to Customer at a rate which shall be the greater of 32 cents per mile traveled or the rate allowed by the US Internal Revenue Service as a business mileage deduction under Section 162 of the US Internal Revenue Code of 1954, as amended, at the date of execution of this Agreement.


6. System Security


Atos Origin shall establish and maintain reasonable safeguards against the destruction, loss or alteration of Customer's data in the possession of Atos Origin that are no less rigorous then those generally maintained by similarly situated service providers for customers of comparable size and under similar conditions and are consistent with industry standards. Customer, at its own expense and to the extent it does not interfere with Atos Origin's business, shall have the right to establish backup security for data and to keep backup data and data files if it chooses.


7. Performance Location & Shipments


For services provided at any one or more Customer location(s), Customer shall be responsible for the allocation of appropriate work space, telephone access, supplies, computers, equipment, supervision and technical information required to enable Atos Origin to perform services under a Description of Services. All shipments to and from Atos Origin of data, information, reports, materials and equipment shall be transported F.O.B. at the appropriate Atos Origin facility. Customer shall be responsible for all transportation charges and expenses including but not limited to all carrier and insurance costs. In no event shall Atos Origin be liable to Customer for any loss or other harm caused in the event a shipment is damaged or lost, unless such loss arises from the negligence of Atos Origin or its agents.


8. Confidential Information


8.1 The Parties acknowledge that each Party possesses and will continue to possess information that has been developed or received by a Party, has commercial value in the Party's business or that of its customers and is not in the public domain.


Except as otherwise specifically agreed in writing by the Parties, including within this Agreement, Customer's "Confidential Information" shall include all third party software, Customer software, Customer data, Customer lists, Customer information, account information and business information regarding business planning and operations of Customer and its affiliates, or other information or data stored on magnetic media or otherwise and transmitted, processed, stored, archived or maintained by Atos Origin under this Agreement and in particular such information that is identified by Customer as Confidential Information either at the time such information is provided to Atos Origin or its affiliates or agents pursuant to this Agreement or upon Atos Origin being advised that such information is Confidential Information.


8.2 Except as otherwise specifically agreed in writing by the Parties, Atos Origin's "Confidential Information" shall include (i) any information relating to the operations of the Atos Origin data center that Atos Origin holds in confidence, including but not limited to Atos Origin's methods of operations, practices and procedures, general controls, and security practices and procedures, (ii) subject to all rights herein, all third party software provided by Atos Origin and being utilized by Atos Origin in providing the Services and additional services, if any, and excluding any work-for-hire and Customized Software owned or jointly owned by Customer (iii) all information regarding the business, affairs and procedures of Atos Origin which Customer or its affiliates or agents acquire pursuant to any audit of Atos Origin hereunder, and (iv) all information regarding the business, affairs and procedures of Atos Origin, and in particular such information that is identified by Atos Origin as Confidential Information either at the time such information is provided to Customer or its affiliates or agents pursuant to this Agreement or upon Customer being advised that such information is Confidential Information.


8.3 The receiving Party will keep all Confidential Information in confidence for a period of not less than three (3) years subsequent to expiration or termination of this Agreement and will not disclose any item of Confidential Information to any person other than its employees, agents or contractors who need to know the same in the performance of their duties. The receiving Party will protect and maintain the confidentiality of all Confidential Information with the same degree of care as it employs to protect its own Confidential Information, but at least with a reasonable degree of care. The receiving Party will be liable to the disclosing Party for any non-compliance by its agents or contractors to the same extent it would be liable for non-compliance by its employees. Except as otherwise set forth in this Agreement, no program or other item or material which has been specifically designed for the Customer, or plans, designs, or specifications for producing the same or otherwise related thereto that contain Confidential Information shall be duplicated or furnished to others without prior written consent of the Customer. Neither Party shall make any use of copies of the other Party's Confidential Information except with the prior written consent of the disclosing Party.


8.4 The terms and conditions of this Agreement shall be for Confidential Information of both Atos Origin and Customer except that Atos Origin shall be free to use the form or provisions of this Agreement so long as the pricing information contained in this Agreement is not disclosed without Customer's prior consent and so long as Customer cannot reasonably be identified from the form or provisions used. The foregoing notwithstanding, in the event that public disclosure of the Agreement is necessary under applicable law, either Party may disclose the information contained in the Agreement.


8.5 The term "Confidential Information" does not include any particular information which the recipient of such information can demonstrate: (i) was, at the time of disclosure to it, in the public domain; (ii) after disclosure to it, is published or otherwise becomes part of the public domain


through no fault of the recipient; (iii) was in the possession of the recipient prior to the time of disclosure; (iv) was received after disclosure from a third party who had a lawful right to disclose such information to it; or (v) was independently developed by it without reference to the Confidential Information of the discloser. In addition, the recipient shall not be considered to have breached its obligations under Section 8.3 for disclosing Confidential Information as required to satisfy any legal requirement of a competent governmental body provided that, immediately upon receiving any such request and to the extent that it may legally do so, the recipient advises the discloser promptly and prior to making such disclosure so the discloser may object to such disclosure, take action to assure confidential handling of the Confidential Information or take such other actions as the discloser reasonably deems appropriate to protect the Confidential Information.


8.6 At any time requested by the disclosing Party pursuant to the terms of this Agreement and at the disclosing Party's expense, the receiving Party shall return or destroy, as the disclosing Party may reasonably direct, all documentation in any medium that contains, refers to, or relates to the Confidential Information and retain no copies, except as may be required for a proper business purpose and subject to a continuing confidential obligation and disclosed as such to the disclosing Party.


8.7 Atos Origin agrees to receive and maintain any information it receives from Customer in a manner consistent with the laws relating to privacy and regulation of confidential information set out in European Union Data Protection Directive and such other member-state implementing laws as may be in effect as well a ...