1
EXHIBIT 10.11
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
SOFTWARE LICENSE AGREEMENT
BETWEEN
XXXXXX XXXXXXXXXXX
AND
OPEN SOLUTIONS, INC.
2
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
TABLE OF CONTENTS
ARTICLE 1 - DEFINITIONS...................................................... 1
ARTICLE 2 - GRANT OF LICENSE................................................. 3
ARTICLE 3 - TERM............................................................. 6
ARTICLE 4 - PAYMENT/INVOICES................................................. 6
ARTICLE 5 - DELIVERABLES/QUALITY ASSURANCE/ACCEPTANCE........................ 8
ARTICLE 6 - UPDATES.......................................................... 9
ARTICLE 7 - TECHNICAL TRAINING/INTEGRATION................................... 10
ARTICLE 8 - MARKETING SUPPORT................................................ 12
ARTICLE 9 - MAINTENANCE/TECHNICAL SUPPORT.................................... 13
ARTICLE 10 - NOTICES/ADMINISTRATION.......................................... 15
ARTICLE 11 - TERMINATION..................................................... 16
ARTICLE 12 - CONFIDENTIAL INFORMATION AND DISCLOSURE......................... 17
ARTICLE 13 - WARRANTY........................................................ 18
ARTICLE 14 - DISCLAIMER...................................................... 19
ARTICLE 15 - LIMITATION OF LIABILITY......................................... 20
ARTICLE 16 - INFRINGEMENT/INDEMNITY.......................................... 20
ARTICLE 17 - TRADEMARKS AND TRADE NAMES...................................... 21
ARTICLE 18 - FORCE MAJEURE................................................... 22
ARTICLE 19 - ASSIGNMENT AND BENEFITS......................................... 22
ARTICLE 20 - [**]............................................................ 22
ARTICLE 21 - GENERAL PROVISIONS.............................................. 22
ARTICLE 22 - ADDENDA/ATTACHMENTS............................................. 25
ARTICLE 23 - SURVIVAL OF PROVISIONS.......................................... 26
ARTICLE 24 - ENTIRE AGREEMENT................................................ 26
ADDENDUM A - PACKAGE AND DOCUMENTATION
ADDENDUM B - COMPENSATION SCHEDULE
ADDENDUM C - TRAVEL POLICY
ADDENDUM D - EXCLUSIONS TO SUBCONTRACTOR DEFINITION
EXHIBIT 1 - USER COMMUNICATION FORM (UCF)
3
SOFTWARE LICENSE AGREEMENT
AGREEMENT NO. __________
This Agreement is entered into by and between Xxxxxx Xxxxxxxxxxx (hereinafter
"UNISYS", a Delaware corporation, with offices at Township Line & Xxxxx Xxxxxxx
Xxxxx, Xxxx Xxxx, Xxxxxxxxxxxx 00000, and Open Solutions, Inc. (hereinafter
"OSI"), a Delaware corporation, with offices at 000 Xxxxxxx Xxxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxxxxxx 00000.
RECITALS
OSI owns certain computer software programs and the documentation related
thereto.
UNISYS desires to obtain certain rights, as hereinafter described, in said
programs and their related documentation.
OSI is willing to grant such rights in said programs and their related
documentation to UNISYS.
In consideration of the mutual covenants herein contained and intending to be
legally bound by the provisions of this Agreement, the parties agree as follows:
ARTICLE 1- DEFINITIONS
Words, as employed in this Agreement, shall have their normally accepted
meanings. The terms "herein" and "hereof" unless specifically limited, shall
have reference to the entire Agreement the word "shall" is mandatory, the word
"may" is permissive, the xxxx "or is not exclusive, the words "includes" and
"including" are not limiting and the singular includes the plural and vice
versa. The following terms shall have the described meaning:
A. "CORRECTION" shall mean a change made in the PACKAGE to correct errors or
defects in the PACKAGE or to make the PACKAGE conform to OSI's then current
DOCUMENTATION.
B. "DISTRIBUTION CHANNEL" shall mean subsidiaries, affiliates, dealers, value
added resellers, distributors, manufacturer's representatives, and other
such entities engaged in doing business with UNISYS, or its subsidiaries or
1
4
affiliates, and who acquire products from them for the purpose of ultimate
sublicense to END USERS, other than competitors of OSI as in Addendum D.
The DISTRIBUTION CHANNEL shall be further defined by and limited to a list
of the parties (other than UNISYS and its subsidiaries which are hereby
automatically included as port of the DISTRIBUTION CHANNEL) intended by
UNISYS as distributors of the PACKAGE. Such list shall be furnished to OSI
for review and confirmation, which shall not be unreasonably withheld, that
such entities are not competitors of OSI. This process shall apply to any
additions UNISYS subsequently requires to the initial list.
C. "DOCUMENTATION" shall mean any portion of those visually or machine
readable materials (in English and all foreign languages, and all
localizations and nationalizations for foreign countries, available from
OSI) developed by or for OSI or licensed to OSI for use in connection with
the PACKAGE and all revisions thereto made by or for OSI or licensed to OSI
including, but not limited to, new documents, corrected documents and
revisions to properly reflect changes made to the PACKAGE provided by OSI
to UNISYS hereunder. DOCUMENTATION shall accurately describe the material
features, functions, and use of the PACKAGE. A description of such
materials in existence as of the Effective Date is set forth in Addendum A.
D. "END USER" shall mean the customers of UNISYS or the DISTRIBUTION CHANNEL
who are granted a license or sublicense which includes the right to use the
PACKAGE for productive processing of data as opposed to use for
demonstration, evaluation or other nonproductive purposes.
E. "ENHANCEMENT" shall mean a new function or feature for any portion of the
PACKAGE which provides a new capability which the previous releases or
versions of the PACKAGE did not have and which may be incorporated into the
PACKAGE by modification to the then existing programs or by development of
new programs.
F. "IMPROVEMENT" shall mean an addition or change to any portion of the
PACKAGE which is intended to or which does improve the performance of the
PACKAGE or any portion thereof.
G. "PACKAGE" shall mean the source code and object code form of one or more
software programs which performs substantially in accordance with the
DOCUMENTATION. Said PACKAGE includes the programs listed in Addendum A, and
any supporting programs necessary for the proper
2
5
functioning thereof. Said PACKAGE shall include all CORRECTIONS. UPDATES,
IMPROVEMENTS and enhancements to any portion thereof made by or for OSI and
provided to UNISYS hereunder, all translations into foreign languages and
all localizations and nationalizations for foreign countries made by or for
OSI to any portion of the PACKAGE from time to time.
H. "SUBCONTRACTOR" shall mean an individual or entity with whom UNISYS or the
DISTRIBUTION CHANNEL has a written contract to perform specified work
utilizing the PACKAGE or DOCUMENTATION; provided, however, that such
contract shall be consistent with the rights and licenses granted hereunder
and shall be subject to the same limitations as are contained in this
Agreement for the protection of OSI's proprietary and confidential
information. This definition specifically excludes as SUBCONTRACTORS the
list of companies set forth in Addendum D which offer solutions competitive
to the PACKAGE, and OSI may amend Addendum D, upon written notice to UNISYS
pursuant to Article 10, to include additional parties offering competitive
solutions.
I. "UPDATE" shall mean a release of the PACKAGE subsequent to the initial
delivery in which OSI has incorporated (1) accumulated CORRECTIONS, (2)
IMPROVEMENTS, (3) ENHANCEMENTS, or (4) changes based on modifications
pursuant to new releases of the operating system, together with new or
revised DOCUMENTATION which properly describes the updated PACKAGE.
ARTICLE 2 - GRANT OF LICENSE
A. Subject to the terms and conditions of this Agreement, OSI hereby grants to
UNISYS and UNISYS hereby accepts from OSI under all of OSI's USA and
foreign patents and copyrights, as well as any know-how or trade secrets
related to the PACKAGE and DOCUMENTATION, a right and license to:
1. use, copy, support, localize, nationalize, and translate the PACKAGE
and DOCUMENTATION;
2. integrate the PACKAGE with other computer programs;
3. integrate the DOCUMENTATION with other written materials;
4. grant sublicenses to END USERS in the territory (as hereinafter
defined) to use, copy and modify the object code version of the
PACKAGE upon such terms and conditions as shall be agreed to between
UNISYS and END USERS; provided, however, any modifications by or for
an END USER which include the use of any
3
6
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
proprietary information of OSI shall be subject to the same
limitations as are contained in this Agreement for the protection of
OSI's proprietary information;
5. grant sublicenses to END USERS in the territory (as hereinafter
defined) to use, copy and modify the source code version of the
PACKAGE , upon such terms and conditions as shall be agreed to
between UNISYS and END USERS; provided, however, that the use and
sublicense of the source code version of the PACKAGE shall be subject
to the prior written approval of OSI and shall be on terms consistent
with the limitations contained in this Agreement far the protection
of OSI's proprietary information; and
6. grant sublicenses to the DISTRIBUTION CHANNEL containing the same
rights as are granted to UNISYS in Subparagraphs 1 through 5, above,
provided that the DISTRIBUTION CHANNEL shall be bound to protect
OSI's intellectual property rights to the same extent as is required
of UNISYS in this Agreement this Subparagraph shall be construed as
authorizing UNISYS to permit cascaded sublicensing such that, for
example, UNISYS may sublicense a subsidiary which shall have the
right to sublicense a distributor, which shall have the right to
sublicense an END USER.
B. Subject to paragraph 2C, the foregoing rights and licenses shall be
exclusive for the territory, which shall consist of all the countries of
Asia (except Japan), Australia, New Zealand and the continent of Africa.
C. OSI shall have the option to convert the rights granted herein to
nonexclusive under the following conditions:
1. If UNISYS fails to license [**] copies of the PACKAGE to END USERS
within 12 months following the release of the "Asia version" of the
PACKAGE (as set forth in Paragraph 7F); or
2. If UNISYS fails to license [**] copies of the PACKAGE to END USERS
during calendar year 1999; or
3. If UNISYS fails to license [**] copies of the PACKAGE to END USERS
during calendar year 2000; or
4. If UNISYS fails to license [**] copies of the PACKAGE to END USERS
during calendar year 2001.
4
7
For purposes of the exclusivity criteria set forth in the paragraph, a
"license of a copy" of the PACKAGE is intended to mean the execution of a
license agreement by an END USER that provides for payment to UNISYS of a
license fee.
D. In consideration of the exclusivity, UNISYS agrees not to market in all or
any part of the territory, directly or through the DISTRIBUTION CHANNEL,
any software product that is competitive with the PACKAGE unless UNISYS
first provides OSI with written notice at least 120 days in advance of such
marketing, whereupon OSI may elect, at its sole option to convert this
Agreement to a non-exclusive arrangement
E. Notwithstanding Paragraph 2D above, the parties agree that UNISYS and the
DISTRIBUTION CHANNEL may market Unisys proprietary software products in the
territory which are in existence as of the Effective Date, including
updates, upgrades, enhancements, modifications and new versions thereof
which are released during the term of this Agreement It is expressly agreed
that the software product UNIBANKS shall be considered as a Unisys
proprietary software product, notwithstanding that certain of UNIBANKS
contain software licensed from third parties.
F. Notwithstanding Paragraph 2D above, UNISYS and the DISTRIBUTION CHANNEL may
market other software which may be competitive with the PACKAGE under the
following circumstances:
1. the customer requires a mainframe-based application; or
2. the customer indicates that the PACKAGE is priced outside the upper
limits of the customer's budgetary envelope; or
3. the PACKAGE does not reasonably satisfy the customer's requirements
(including such factors as functionality, platform, database or
capacity); or
4. the customer advises, after receiving a presentation on the merits of
the PACKAGE, that it does not wish to use it.
In no event, however, without OSI's prior written consent, (a) may the
PACKAGE or DOCUMENTATION be provided to an END USER to be used concurrently
with a competitive software product, including Unisys
5
8
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
proprietary software, unless the PACKAGE is being used concurrently with a
competitive software product on a temporary basis, not to exceed 90 days or
(b) may the PACKAGE or DOCUMENTATION be merged or integrated, in whole or
in part, with any competitive software product.
G. In the event that UNISYS determines that it will offer its proprietary
software or a competitive software product to a potential customer, as
provided in Paragraphs 2E and 2F above, UNISYS shall advise OSI of this
circumstance as soon as practicable, and in such instance OSI may offer the
PACKAGE to the potential customer, either directly or through a third
party.
H. the parties may at any time agree in writing to an arrangement other than
the mutual exclusivity described in this Article 2 to market the PACKAGE in
all or any part of the territory.
I. Unisys may, at any time during the term of this Agreement, elect to
terminate its exclusive rights under this Agreement, in which event the
Agreement shall became nonexclusive and the provisions of Paragraphs 2B
through 2H shall be deemed deleted from the Agreement.
J. It is understood and agreed that all right, title and interest to all
changes, modifications, improvements and derivative works made by UNISYS,
the DISTRIBUTION CHANNEL, or SUBCONTRACTORS in and to the PACKAGE and
DOCUMENTATION and all inventions, copyrights, trade secrets and other
intellectual property rights therein shall vest in OSI; provided, however,
that UNISYS shall have the exclusive right to use such changes and
additions during the term of this Agreement OSI has all ownership rights in
the PACKAGE as originally delivered to Unisys as well as all rights in
subsequent modifications made to the PACKAGE by OSI, whether or not
delivered to UNISYS. During the term of this Agreement, but only outside
the territory, or worldwide upon the termination, expiration or
cancellation of this Agreement, OSI shall have the right to use the changes
and additions made by UNISYS, the DISTRIBUTION CHANNEL, or SUBCONTRACTORS
in and to the PACKAGE and DOCUMENTATION. If such changes and additions
consist of new modules, new functionality, changes to more than [**] or the
code, or other substantial value, OSI shall pay UNISYS a royalty of [**] of
the license fees received by OSI from END USERS for the use of the Unisys
version of the PACKAGE and DOCUMENTATION. Nothing shall be considered as
vesting any intellectual property rights in OSI for software products which
are not
6
9
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
port of the PACKAGE, nor for interfaces made by UNISYS between the PACKAGE
and other software products.
ARTICLE 3 - TERM
A. The term of this Agreement shall commence on the Effective Date and shall
continue for an initial term of five (5) years, unless earlier terminated
or canceled in accordance with the provisions of this Agreement. At the
conclusion of the initial term, the Agreement will be automatically renewed
for successive one year terms, unless terminated by either party by at
least six months notice to the other party prior to the end of the then
current term.
ARTICLE 4 - PAYMENT/INVOICES
A. For delivery of a copy of the PACKAGE and DOCUMENTATION to UNISYS upon
execution of this Agreement, and in consideration of the license granted to
UNISYS in Paragraph 2A above, UNISYS agrees to pay OSI an initial license
fee for the PACKAGE and DOCUMENTATION, equal to [**].
B. In addition to the initial license fee payable under Paragraph 4A above,
UNISYS shall make [**] license fee payments to OSI for each license fee
bearing copy of the complete or partial PACKAGE sublicensed to an END USER.
Such payments are subject to reconciliation as described in Paragraph C,
below. The specific license fee due OSI for the complete PACKAGE shall be
as set forth in Addendum B. In the event a partial version of the PACKAGE
is sublicensed to an END USER, the parties shall agree on the license fee
due OSI.
C. UNISYS shall provide OSI with quarterly reports showing the quantity of
license fee bearing PACKAGES sublicensed and billed hereunder commencing
after the initial license fee bearing sublicense has been granted. Said
reports and appropriate payment shall be provided to OSI for each calendar
quarter ending March 31, June 30, September 30, December 31 during the term
hereof and shall be forwarded not later than sixty (60) days after the end
of each quarter. Said quantities and related license fee payments shall be
subject to subsequent revision, correction and reconciliation in later
quarters based on: (1) nonacceptance, revocation of acceptance, or
rejection of the PACKAGE or any component thereof by an END USER; in which
event UNISYS shall receive a credit or refund, at the option of UNISYS,
from OSI in the amount of the applicable license fee (or pro-rata share
thereof, if less than all of the
7
10
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
PACKAGE is affected) paid by UNISYS for said PACKAGE; or (2) adjustments
and/or discounts applied in accordance with Paragraphs E and F below.
D. No license fee shall be due OSI in connection with the use of the PACKAGE
and DOCUMENTATION by UNISYS or by the DISTRIBUTION CHANNEL for any purpose
or any of their SUBCONTRACTORS for performing work for any of them, or by
prospective END USERS for test, evaluation, or nonproduction purposes. Any
test or evaluation by prospective END USERS shall be done under UNISYS
supervision and shall not exceed ninety (90) day in duration.
E. OSI agrees,[**] from UNISYS for the PACKAGE to [**] UNISYS or the
DISTRIBUTION CHANGE [**] for the PACKAGE. If OSI [**], OSI shall so notify
UNISYS and [**].
F. When requested by UNISYS or OSI, both parties agree to review the license
fees payable by UNISYS when mutual benefit may be achieved in response to
special marketing situations.
G. Invoices for reimbursement of permitted travel and living expenses and for
authorized services performed by OSI may be submitted after such services
were rendered or such expenses incurred. Such invoices shall be paid within
forty five (45) days after receipt and approval by UNISYS.
H. In accordance with the reporting and reconciliation provisions set forth in
Paragraph C, above. UNISYS shall make payments to Os for the
maintenance/technical support furnished pursuant to Article 9. The specific
support fees are set forth in Addendum B.
I. It is understood and agreed that OSI is not entitled to any compensation
for UNISYS or other third party products and services sold licensed by
UNISYS in conjunction with the sublicensing of the PACKAGE by UNISYS.
J. OSI shall have the right during the term of this Agreement and for one year
thereafter, at its cost, no more than once each calendar year, through a
mutually acceptable independent auditor to audit the books and records of
UNISYS as necessary to verify any license fee payments made by UNISYS.
UNISYS shall make its books and records available for inspection by such
auditor during its normal business hours and at its usual place of
business. OSI shall give UNISYS no less than thirty days prior written
notice of its desire to have such an audit performed. UNISYS books and
records shall be treated
8
11
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
by such auditor as confidential information of UNISYS and shall not be
disclosed except that a summary and the conclusions of the audit as they
relate to this Agreement may be disclosed to OSI. If any such audit should
disclose that the statements of UNISYS understate the actual license fee
payable by UNISYS. UNISYS shall pay OSI the amount of the discrepancy plus
interest compounded at 1% per month on any discrepant amount from the
date(s) of such understatement. If such understatement is five percent (5%)
or more. UNISYS shall also reimburse OSI for any expenses incurred in
conducting the audit.
ARTICLE 5 - DELIVERABLES/QUALITY ASSURANCE/ACCEPTANCE
A. INITIAL DELIVERY
Within ten days after the Effective Date, OSI shall deliver, in
reproducible form, the current copy of the items listed in Addendum A.
B. SUBSEQUENT DELIVERIES
Delivery of UPDATES shall be in the same form as the initial delivery of
the item being updated unless otherwise mutually agreed.
C. GENERAL REQUIREMENTS
The object and source code versions of the PACKAGE shall be delivered an
separate media as specified in Addendum A. All items to be delivered
hereunder shall be F.O.B. destination and OSI shall make shipment in
accordance with UNISYS instructions.
D. ACCEPTANCE
All items to be delivered to UNISYS by OSI under this Agreement shall be
subject to UNISYS evaluation, testing, and acceptance for conformance to
applicable specifications. In the event of nonconformance, OSI shall use
commercially reasonable efforts in accordance with the provisions of this
Agreement, to make modifications required to achieve such conformance and
shall deliver in a timely manner to UNISYS the modified items for UNISYS
further evaluation, testing and acceptance. From and after the Effective
Date, UNISYS shall have a period of [**] to evaluate the PACKAGE in order
to determine whether the PACKAGE and DOCUMENTATION meet UNISYS reasonable
requirements with respect to performance, accuracy and reliability. If,
prior to the end of said [**] evaluation period, UNISYS gives OSI notice
that the PACKAGE and DOCUMENTATION do not meet UNISYS requirements
9
12
based on material, concrete factors specified in such notice, then unless
the parties reach mutually agreeable terms for the resolution of the issue,
UNISYS may elect to cancel this Agreement and receive a return of any
amounts paid pursuant to Paragraph 4A above.
ARTICLE 6 - UPDATES
A. During the term of this Agreement, OSI shall promptly inform UNISYS and
shall keep UNISYS advised after the status of all IMPROVEMENTS,
ENHANCEMENTS, and CORRECTIONS being developed by or for OSI for the PACKAGE
and the DOCUMENTATION, IMPROVEMENTS/ENHANCEMENTS by OSI will only be
delivered to UNISYS when the IMPROVEMENTS/ENHANCEMENT'S become generally
available to all OSI customers; provided, however, OSI will provide UNISYS
with access to beta versions of such IMPROVEMENTS/ENHANCEMENTS prior to
general availability, but such beta versions may not be sublicensed to END
USERS. When any such IMPROVEMENTS, ENHANCEMENTS, or CORRECTIONS hove been
completed by OSI. OSI shall provide to UNISYS one (1) copy of the PACKAGE
incorporating such IMPROVEMENTS, ENHANCEMENTS, or CORRECTIONS, and one (1)
copy of the DOCUMENTATION properly updated to reflect such IMPROVEMENTS,
ENHANCEMENTS, or CORRECTIONS.
B. During the term of this Agreement, UNISYS shall promptly inform OSI and
shall keep OSI advised of the status of all IMPROVEMENTS, ENHANCEMENTS, and
CORRECTIONS being developed by UNISYS, the DISTRIBUTION CHANNEL or
SUBCONTRACTORS for the PACKAGE and the DOCUMENTATION,
IMPROVEMENTS/ENHANCEMENTS by UNISYS, The DISTRIBUTION CHANNEL or
SUBCONTRACTORS will only be delivered to OSI when the
IMPROVEMENTS/ENHANCEMENTS became ready far general release to UNISYS
customers; provided, however, UNISYS, the DISTRIBUTION CHANNEL or
SUBCONTRACTORS will provide OSI with access to beta versions of such
IMPROVEMENTS/ENHANCEMENTS prior to general availability, but such beta
versions may not be sublicensed to END USERS. When any such IMPROVEMENTS,
ENHANCEMENTS, or CORRECTIONS have been completed by UNISYS, the
DISTRIBUTION CHANNEL or SUBCONTRACTORS, UNISYS shall provide to OSI one (1)
copy of the PACKAGE incorporating such IMPROVEMENTS, ENHANCEMENTS, or
CORRECTIONS, and one (1) copy of the
10
13
DOCUMENTATION properly updated to reflect such IMPROVEMENTS, ENHANCEMENTS,
or CORRECTIONS.
C. OSI shall deliver an UPDATE containing an accumulation of CORRECTIONS to
UNISYS at the same time OSI releases such UPDATE for its own use or for use
by its customers; provided, however, that such UPDATE shall be delivered to
UNISYS not less frequently than every six (6) months, commencing the sixth
(6th) month after the Effective Date, and in no event later than the end of
the sixth (6th) month after the Effective Date, unless the parties
otherwise mutually agree in writing. Any CORRECTIONS made by UNISYS, the
distribution CHANNEL or subcontractors independent of IMPROVEMENTS or
ENHANCEMENTS shall be sent to OSI on a monthly basis for accumulation into
the next OSI UPDATE of the UNISYS PAAG specific version.
D. If any portion of the PACKAGE or DOCUMENTATION is translated, localized or
nationalized by or for OSI or any of its agents, OSI shall promptly so
notify UNISYS and, if requested by UNISYS for use by or for END USERS in
the territory, OSI shall, within thirty (30) days of such request, deliver
one (1) copy of such PACKAGE or DOCUMENTATION to UNISYS.
ARTICLE 7 - TECHNICAL TRAINING/INTEGRATION
A. OSI, as requested by UNISYS and at no charge, shall furnish an initial
"train the trainer" training course in each of Asia and South Africa to
UNISYS and UNISYS subsidiary personnel in the installation, maintenance,
and operation of the PACKAGE. Each training course shall be of sufficient
length to accomplish the competency level described above but shall be no
less than five (5) days in length. Course materials shall be provided at no
charge and may be retained by the trainees. If additional training is
required by UNISYS, OSI shall provide training courses as required, based
on a mutually established schedule, location, and discount from OSI's
standard training rates.
B. In the event UNISYS determines that UNISYS requires more in-depth training
than the standard training furnished pursuant to Paragraph A, above, or in
the event OSI is unable to accommodate UNISYS personnel in its standard
training courses. OSI shall provide a "train the trainer" internals
workshop of no less than ten (10) days duration for Unisys personnel for
training in the installation, maintenance, operation, modification, and
enhancement of the PACKAGE, including detailed analysis of the design,
structure, and architecture of the PACKAGE. Such training shall be
conducted in accordance with schedules
11
14
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
mutually agreed upon by the parties, training will generally, be conducted
at OSI's facility, unless otherwise agreed by the parties, At the end of
each course OSI shall, if requested by UNISYS, provide UNISYS with any
available instructor materials for the class, for UNISYS subsequent use in
performing training.
C. If a major UPDATE (i.e., those changes for which OSI offers "differential'
training to its own customers) is made by OSI, OSI shall, as requested by
UNISYS, provide training courses in accordance with the requirements set
forth in Paragraph A, above.
D. The training to be performed under Paragraphs A and B above shall be at the
location described therein, and the training to be performed under
Paragraph C above shall be provided at OSI, unless UNISYS & OSI mutually
agree to have the training provided at a site other than OSI's facility in
Glastonbury, Connecticut.
1. If the training is to be performed at OSI's facility, (a) OSI shall
make available, for the use of UNISYS personnel, equipment,
facilities and other items required for such training, and (b) UNISYS
shall bear the cost of travel and living expenses of its personnel.
2. If the training is to be performed at other than OSI's facility,
UNISYS shall (a) reimburse OSI, in accordance with Addendum C, for
travel and living expenses incurred by OSI's personnel to the extent
that such expenses arise solely and directly from the training being
performed at other than an OSI facility, and (b) make available
adequate facilities and equipment reasonably required for such
training.
E. OSI shall assist UNISYS in the [**] END USER installations/
customizations, and will thereafter provide assistance as requested by
UNISYS on a "personnel available" basis, OSI will be compensated for this
assistance at a rate of [**] for the [**] END USER
installations/customizations, and thereafter at the rates set forth in
Addendum B. If OSI personnel are required to provide on-site assistance,
UNISYS shall reimburse OSI, in accordance with Addendum C, for travel and
living expenses incurred by OSI's personnel to the extent that such
expenses arise solely and directly from the assistance being performed at
other than an OSI facility.
12
15
F. OSI, as requested by UNISYS, shall provide consultancy services following
the Effective Date to support UNISYS efforts to create an "Asian/African
version" of the PACKAGE. Such consultancy services shall consist of
technical advice with respect to the functionality, design and architecture
of the PACKAGE, such that UNISYS will have the tools and information
necessary to perform development work, OSI shall assist UNISYS at no charge
in performing a "gap analysis" of the required modifications to the PACKAGE
to meet the needs of the Asian and African markets, and will further
provide a total of six man-months of consultancy services for the creation
of the Asian/African version. OSI will be compensated for any consultancy
services beyond the first six man-months at the rates provided in Addendum
B.
ARTICLE 8 - MARKETING SUPPORT
A OSI will support UNISYS in its initial program launch marketing activities,
for a period of time to be agreed upon by the Marketing Administrators.
Such activities shall be at no charge to UNISYS, except as noted or as
otherwise agreed by the Marketing Administrators, and shall include the
following:
1. OSI shall, as requested by UNISYS, furnish train the trainer type
training in Asia and South Africa to UNISYS and UNISYS subsidiary
marketing organization personnel for the marketing of the PACKAGE.
Such training shall be on specific dates to be mutually agreed upon.
Except as provided in Paragraph 8B below, each party shall bear its
own costs relative to such training.
2. At UNISYS reasonable request, OSI shall participate at no charge to
UNISYS in one trade show, user conference or other similar event per
year at which the PACKAGE is to be exhibited, demonstrated, discussed
or otherwise involved, OSI may participate in additional events by
mutual agreement, at cost.
3. Technical bid support to assist UNISYS to make proposals to at least
four potential END USERS; provided that after the first four
potential END USERS, such support shall be provided at the rates set
forth in Addendum B.
B. If any of the support rendered pursuant to Subparagraphs 1 and 3, above, is
furnished at other than an OSI facility, UNISYS shall reimburse OSI, in
accordance with Addendum D, for travel and living expenses incurred by
13
16
OSI's personnel to the extent such expenses arise solely and directly from
such support being performed at other than an OSI facility.
ARTICLE 9 - MAINTENANCE/TECHNICAL SUPPORT
A OSI shall provide maintenance and technical support as described in this
Article 9 for the PACKAGE and DOCUMENTATION as delivered to UNISYS. UNISYS
shall be responsible to provide maintenance and technical support for any
modifications or enhancements it makes to the PACKAGE and DOCUMENTATION.
UNISYS shall advise OSI of errors and, defects in the PACKAGE and
DOCUMENTATION reported by END USERS or discovered by UNISYS, and OSI shall
resolve the errors and defects, as provided herein, if UNISYS reproduces
such errors or defects in the version of the PACKAGE or DOCUMENTATION as
delivered to UNISYS. At UNISYS request, OSI shall assist UNISYS to resolve
errors and defects which are not reproducible in the version of the PACKAGE
and DOCUMENTATION as delivered to UNISYS and in such event, UNISYS shall
pay OSI at the rates set forth in Addendum B for the time of such personnel
and reimburse OSI, in accordance with Addendum C, for travel and living
expenses of such personnel incurred in rendering such assistance.
B. UNISYS agrees that it shall provide the first of product and technical help
desk support to the DISTRIBUTION CHANNEL, SUBCONTRACTORS and END USERS.
This shall include all of the day to day issues of functionality', error
correction and customer service. In the event that UNISYS lack the
requisite skills or knowledge to resolve an issue, OSI shall provide
telephone consulting services only to UNISYS designated personnel to assist
such personnel in the resolution of such problems, relative to the PACKAGE
or DOCUMENTATION. In no instance shall OSI provide direct support to the
DISTRIBUTION CHANNEL, SUBCONTRACTORS and END USERS as defined herein. Said
OSI services shall be provided seven (7) days per week. Twenty-four (24)
hours per day for Priority A errors and during normal working hours for
other errors, OSI shall furnish the names and telephone numbers of its
personnel for both normal working hours and other times (e.g., holidays,
weekends, etc.), UNISYS shall provide the names and telephone numbers of
the designated UNISYS personnel assigned to work with OSI.
C. UNISYS agrees to minimize the number of support contacts that it makes
with OSI after the first six months of this Agreement UNISYS also agrees to
provide OSI with a quarterly report summarizing the nature of calls made to
the
14
17
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
UNISYS help desk, whether or not these calls were forwarded to OSI. After
the first six months of this Agreement any call made to UNISYS and
forwarded to OSI that could have been resolved by UNISYS without OSI
assistance or that was made in direct response to a UNISYS made
IMPROVEMENT, ENHANCEMENT or CORRECTION shall be chargeable to UNISYS as
extraordinary support services at the rates set forth in Addendum B.
D. Upon UNISYS reasonable request, and subject to availability, OSI shall
furnish qualified personnel for on-site assistance to UNISYS, to resolve
problems and assist in customization. In such event, UNISYS all pay OSI at
the rates set forth in Addendum B for the time of such personnel and
reimburse OSI, in accordance with Addendum C, for travel and living
expenses of such personnel incurred in rendering such assistance; provided,
however, That OSI shall not be entitled to payment for the time of its
personnel if such assistance to resolve problems is required due solely to
a significant error or defect in the PACKAGE DOCUMENTATION as delivered to
UNISYS or OSI's training and such defect cannot otherwise be reasonably
resolved in a timely manner.
E. OSI agrees to diligently work for the prompt resolution of defects and
errors in the PACKAGE or correction of errors or inconsistencies in the
DOCUMENTATION, OSI agrees to respond to UNISYS as required by UNISYS "User
Communication Form" (UCF), Exhibit 1 hereof, as revised or replaced by
UNISYS from time to time. Notwithstanding the foregoing, in case of a
system-down condition (i.e., Priority Code A, Emergency, as defined below)
attributable to OSI. UNISYS may utilize and designate other means of
communication for both the reporting of errors and the correction thereof.
OSI shall respond to and use commercially reasonable efforts to complete
correction of errors, defects and malfunctions in accordance with the
following schedule:
RESPONSE (2) CLOSURE (3)
------------ -----------
ERROR PRIORITY (1) (Calendar Days) (Calendar Days)
Emergency (A) [**] [**]
Critical (B) [**] [**]
Non-Critical (C) [**] [**]
(1) PRIORITY A - Catastrophic system or module failures that do not
CODES: have a viable detour or workaround available.
15
18
B - Problems that have been substantiated as a serious
inconvenience to users, this includes any Priority A for
which a viable detour or workaround is available.
C - All other problems which the user can avoid or detour
for which there is no urgency for a resolution.
(2) RESPONSE: Response consists of providing, as appropriate, one or more of
the following to the UCF originator: a workaround/detour, an
existing CORRECTION, a new CORRECTION against reported product
level only, an available release, a release commitment for
Priority B and C, notification of a non-problem.
(3) CLOSURE: Closure consists of providing a final CORRECTION of the
problem to the UCF originator including UPDATES of the
PACKAGE, and revised or new DOCUMENTATION as necessary.
In the event OSI does not furnish corrections of Priority A errors within
the applicable times set forth above, upon UNISYS reasonable request, OSI
shall furnish on-site maintenance support personnel, at the designated
site, who shall remain at the site and provide support until the problem is
corrected. In the event that the error is not due solely to an error,
defect, malfunction, or breach of warranty regarding the PACKAGE or
DOCUMENTATION, UNISYS shall pay OSI at the rates set forth in Addendum B
for time spent at the site and reimburse OSI, in accordance with
Addendum D, for travel and living expenses incurred by said personnel.
F. OSI shall furnish the maintenance and technical support described in
Paragraphs A, B, C and D, above, for the current release level of the
PACKAGE and the previous release level thereof.
ARTICLE 10 - NOTICES/ADMINISTRATION
All notices shall be in writing and shall be sent by certified mail, return
receipt requested, or by wire communications (e.g., facsimile, To be followed by
US Mail or overnight carrier), To the respective Contract Administrator, at the
address noted below, or as the same may be changed from time to time by notice
similarly given:
A. FOR UNISYS
16
19
1. General administration and liaison shall be performed by Xxxxxx
Xxxxxxxxxxx (referred to herein as UNISYS Contract Administrator,
0000 Xxxxxxxx Xxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000, or his
designee or successor.
2. Technical liaison shall be performed by Xxxxxxx Xxxxxx (referred to
herein as UNISYS technical Administrator), Manila, Philippines, or
his designee or successor.
3. Marketing liaison shall be performed by Jonji Villa (referred to
herein as "UNISYS Marketing Administrator"), 00/X Xxxxx Xxxxx Xxxxxx,
280 Gloucester Road, Causeway Bay, Hong Kong, or his designee or
successor.
B. FOR OS
1. General administration and liaison shall be performed by Xxxxxxx
Xxxxxxxx (referred to herein as "OSI's Contract Administrator"), 000
Xxxxxxx Xxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxx 00000, or his designee
or successor.
2. Technical liaison shall be performed by Xxxxxxxx Xxxxxxxx (referred
to herein as "OSI's Technical Administrator"), 000 Xxxxxxx Xxxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxx 00000, or his designee or successor.
3. Marketing liaison shall be performed by Xxxxxxx Xxxxxxxx (referred to
herein as "OSI's Marketing Administrator"), 300 Winding Brook Drive,
Glastonbury, Connecticut, or his designee or successor.
C. The Technical and Marketing Administrators may, as applicable to their
respective function, provide further details, handle necessary technical
and marketing matters, develop/implement administrative procedures, but
shall have no authority to affect or change any of the terms and conditions
of this Agreement the exercise of each party's right of termination or
cancellation and the exercise of other general rights of the parties are
reserved to the Contract Administrators.
ARTICLE 11 - TERMINATION
17
20
A. This Agreement may be terminated by either party for cause, in the event
that the other party substantially fails to perform any of its material
obligations hereunder and said cause is not corrected within 30 days after
delivery of written notice from the non-defaulting party specifying such
cause.
B. If a party (i) is involved in any proceedings under any bankruptcy or other
insolvency laws, or laws for the relief of debtors; (ii) has a receiver or
other court appointee named for its business or property; (iii) makes an
assignment for the benefit of creditors; (iv)is liquidated, dissolved, or
its existence is terminated; then the other party may suspend performance
under this Agreement and/or terminate this Agreement immediately upon
written notice.
C. Cancellation or termination of this Agreement shall not cancel, terminate
or affect sublicenses previously granted to END USERS, nor shall any
obligations already committed to END USERS be extinguished, Unisys shall be
permitted to continue to use the PACKAGE and DOCUMENTATION to fulfill
support and maintenance obligations, however, Termination of this Agreement
shall terminate the rights of UNISYS and the DISTRIBUTION CHANNEL to grant
additional sublicenses after such termination, OSI shall have the option to
assume the rights and obligations of UNISYS under its sublicenses with END
USERS if the agreement is rightfully terminated by OSI pursuant to
Paragraphs 11 A or 11 B above, and in such instance UNISYS shall take
appropriate measures to assign its rights under the sublicenses to OSI, the
parties' rights to cancel or terminate in accordance with this Article are
in addition to and shall not limit or prejudice any other right or remedy
available under this Agreement, at law, or in equity, except as provided
herein.
ARTICLE 12 - CONFIDENTIAL INFORMATION AND DISCLOSURE
A. Any information which either party may disclose to the other party shall
not be deemed to be confidential and shall be acquired free from any
restriction, unless the information is proprietary to the disclosing party
or its licensors and, if it is disclosed in tangible form, The disclosing
party marks such information as being confidential to it by marking such
information as "Proprietary", "Restricted", or "Confidential". Any
confidential information disclosed orally shall be identified as
confidential at the time of disclosure and thereafter reduced to tangible
form with a copy prominently marked as aforesaid, delivered to the
receiving party within thirty (30) days of the verbal disclosure. When a
writing contains both confidential and nonconfidential information, The
disclosing party shall specifically note the information which
18
21
is confidential, OSI represents that the PACKAGE contains trade secrets and
UNISYS agrees to treat the PACKAGE as OSI's confidential information
B. Each party shall exercise the same degree of care, in no event less than
reasonable care, to avoid the publication or dissemination of the
confidential information of the other party as it affords to its own
confidential information of a similar nature which it desires not to be
published or disseminated.
C. Confidential information disclosed under this Agreement shall only be used
by the receiving party in the furtherance of this Agreement or the
performance of its obligations hereunder.
D. The obligation of the parties not to disclose confidential information
shall survive the termination or cancellation of this Agreement However,
neither party shall be obligated to protect confidential information of the
other party which:
1. is rightfully received by the receiving party from another party
without restriction, or
2. is known to or developed by the receiving party independently without
use of the confidential information, or
3. is or becomes generally known to the public by other than a breach of
duty hereunder by the receiving party, or
4. has been or is hereafter furnished to others by the disclosing party
without restriction on disclosure.
The obligation not to use or disclose said confidential information shall
end five years after the date of receipt of said confidential information,
except with respect to software, including any related documentation, for
which the obligation shall continue until the occurrence of any of the
events listed in Subparagraphs D1 through D4, above.
E. UNISYS shall be permitted to disclose said confidential information to the
DISTRIBUTION CHANNEL and to SUBCONTRACTORS for their use in the furtherance
of this Agreement in accordance with the rights and licenses granted;
provided, however, That the DISTRIBUTION CHANNEL and SUBCONTRACTORS agree
to protect such information to the extent provided herein.
19
22
F. Except as needed to meet the provisions of Paragraph 11 C above, UNISYS
shall return all of OSI's Confidential Information which is in its
possession upon the termination of this Agreement.
ARTICLE 13 - WARRANTY
A. OSI warrants that it owns the entire right, title and interest in and to
the PACKAGE and DOCUMENTATION or has valid licenses to the PACKAGE and
DOCUMENTATION, and that to the best of its knowledge the Source Code and
DOCUMENTATION have not been disclosed to others except under an obligation
of confidentiality.
B. OSI warrants that it has the right and power to grant the licenses and
rights set forth in this Agreement.
C. OSI warrants that (1) the PACKAGE, as supplied, shall perform in all
material respects in accordance with its specifications and the
DOCUMENTATION listed in Addendum A and the other requirements of this
Agreement, (2) the PACKAGE does not contain any disabling devices, and (3)
the DOCUMENTATION accurately describes the features, functions, and use of
the PACKAGE.
D. OSI warrants that the PACKAGE and DOCUMENTATION are not in the public
domain.
E. OSI warrants that it has no knowledge of any patents or copyrights which
are infringed or may be infringed, or any trade secrets or other
proprietary rights of other parties which ore or may be misappropriated or
violated by using, making, copying, or licensing the PACKAGE or
DOCUMENTATION as contemplated hereunder, OSI further warrants that any
UPDATES it will make to the PACKAGE will not knowingly infringe any patents
or copyrights and misappropriate or violate the trade secrets or other
proprietary rights of other parties by using, making, copying or licensing
the UPDATES as contemplated hereunder.
F. OSI warrants that is has agreements with its employees which ore sufficient
for the fulfillment of OSI's obligations pursuant to this Agreement.
G. OSI warrants and represents that the PACKAGE does not contain a
cryptographic algorithm (code which transforms data to conceal or reveal
20
23
information content and which uses at least one confidential parameter)
which requires licenses to be obtained from the Deportment of Commerce
(DOC) and/or the Deportment of State (DOS), for export of said PACKAGE.
H. OSI warrants that the Package shall be capable, when used in accordance
with the Documentation, of correctly creating, storing, processing,
providing or receiving dote data from, into and between the twentieth and
twenty-first centuries, including leap year calculations. The remedy
available to Unisys shall include repair, correction or replacement of the
Package whose non-compliance is made known to OSI in writing. The rights
and remedies that Unisys may otherwise have with respect to defects other
than date functionality remain unaffected.
I. UNISYS warrants that any modifications it will make to the PACKAGE will not
knowingly infringe any patents or copyrights and misappropriate or violate
the trade secrets or other proprietary rights of other parties by using,
making copying or licensing the modifications as contemplated hereunder.
ARTICLE 14 - DISCLAIMER
EXCEPT AS EXPRESSLY STATED HEREIN, NEITHER PARTY HAS MADE ANY WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING,
WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE CONCERNING THE PACKAGE TO BE PROVIDED HEREUNDER, THE SCOPE OR
DURATION OF ANY MARKETING EFFORT WHICH UNISYS MAY UNDERTAKE, OR THE SUCCESS OF
ANY SUCH MARKETING EFFORT. NEITHER PARTY HAS RELIED ON ANY EXPRESS OR IMPLIED
REPRESENTATION OF THE PARTY, WRITTEN OR ORAL NOT CONTAINED HEREIN, AS AN
INDUCEMENT TO ENTERING INTO THIS AGREEMENT.
ARTICLE 15 - LIMITATION OF LIABILITY
OSI'S LIABILITY FOR DAMAGES TO UNISYS OR TO ANY OTHER PERSON CLAIMING DAMAGES
HEREUNDER, OR AS A RESULT OF USE OF THE PACKAGE OR DOCUMENTATION, IF ANY, SHALL
BE LIMITED TO THE AMOUNTS PAID BY UNISYS TO OSI DURING THE TWENTY FOUR MONTH
PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH
LIABILITY. EXCEPT AS PROVIDED IN ARTICLE 16
21
24
RELATING TO INTELLECTUAL PROPERTY INFRINGEMENT OR A BREACH OF ITS OBLIGATIONS
UNDER ARTICLE 12 RELATING TO CONFIDENTIALITY, NEITHER PARTY SHALL BE LIABLE FOR
ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT
LIMITED TO, LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES, THIS ARTICLE SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
ARTICLE 16 - INFRINGEMENT/INDEMNITY
OSI agrees to indemnity and hold harmless UNISYS, the DISTRIBUTION CHANNEL,
SUBCONTRACTORS, and END USERS from any claim, liability, damage or expense
including but not limited to reasonable legal expenses of whatever kind for, or
on account of, patent infringement, copyright infringement, misappropriation of
trade secrets or violation after other proprietary rights in connection with or
relating to the authorized use, copying reproduction, distribution, licensing or
other disposition of the PACKAGE and DOCUMENTATION in the territory. OSI agrees
to defend or settle, at OSI's expense, all suits or proceedings arising out of
any of the foregoing; provided UNISYS (a) gives OSI prompt written notice of all
suits or threats of suit and other such claims concerning patent or copyright
infringement or misappropriation of trade secrets and other intellectual
property against UNISYS, the DISTRIBUTION CHANNEL, SUBCONTRACTORS, and END
USERS, (b) permits OSI to defend or settle the claims, and (c) provides
reasonable assistance to OSI, at OSI's expense, in defending or settling the
claims. UNISYS, at its own expense, shall have the right to participate in OSI's
defense of any such action through UNISYS own counsel. In the event that OSI
fails after notice, to defend any action which it is obligated to defend under
this Article 16, UNISYS shall have the right of prosecuting and defending such
action or actions and to collect such costs and expenses (including attorney's
fees) from OSI and shall further have the right to charge OSI with any and all
awards, damages and court costs in such action or actions and to collect such
awards, damages and court costs from OSI. If the PACKAGE or DOCUMENTATION are
held to be an infringement or misappropriation for which UNISYS is indemnified
by OSI, and their use is enjoined, or in OSI's opinion is likely to become the
subject of such a claim of infringement OSI shall, at OSI's option and expense,
either:
1. procure for UNISYS the right to continue to utilize the PACKAGE and
DOCUMENTATION pursuant to the license granted herein, or
22
25
2. replace or modify the PACKAGE and DOCUMENTATION in such a way that they
shall not continue to constitute such infringement or misappropriation, or
3. if neither of the foregoing is a commercially reasonable alternative, then
OSI may temporarily terminate UNISYS right to grant additional licenses and
UNISYS must cease granting additional licenses until the problem is
resolved.
OSI shall not be liable under this Article 16 if the PACKAGE or DOCUMENTATION
have been modified or combined with materials or data not supplied by OSI by any
of the parties indemnified hereunder and such modification, combination or
combinations are the cause of any such infringement or misappropriation, unless
such modifications were made in accordance with OSI's instructions. OSI shall
not be liable under this Article 16 if OSI (a) has notified UNISYS of a
potential infringement or misappropriation and (b) has provided UNISYS with a
new version of the PACKAGE and DOCUMENTATION which avoids the infringement or
misappropriation such that UNISYS has a reasonable amount of time to install the
new version for END USERS.
ARTICLE 17 - TRADEMARKS AND TRADE NAMES
Nothing contained in this Agreement shall be construed as licensing either party
to use any trademark or trade name owned or used by the other party without the
prior written consent of the other party. However, UNISYS and the DISTRIBUTION
CHANNEL shall have the use of the OSI marks currently used to identify the
PACKAGE (and any other or subsequent marks used by OSI to identify the PACKAGE)
in connection with the use, marketing, copying, distribution, licensing and
sublicensing of the PACKAGE and DOCUMENTATION. UNISYS shall provide OSI with a
copy for approval of any and all materials in which UNISYS uses the OSI marks,
which approval shall not be unreasonably or untimely withheld, OSI shall have
the right to terminate the UNISYS right to use OSI marks if, in OSI's reasonable
judgment, such use will be detrimental to OSI's goodwill. When marketing the
PACKAGE and DOCUMENTATION, UNISYS and the DISTRIBUTION CHANNEL shall have the
right to use their own trademarks or trade names when referring to the PACKAGE
or DOCUMENTATION. Each party acknowledges that it acquires no rights or interest
in the other Party's trade names, logo, or trademarks by reason of any use of
the same in connection with this Agreement
23
26
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
ARTICLE 18 - FORCE MAJEURE
Neither UNISYS nor OSI shall be liable to the other for delays in the
performance of or completion of this Agreement if notice of such delay is
provided as required in Article 21 L and if such delay is caused by strikes,
riots, wars, government regulations imposed after the fact, acts of God, fire,
flood or other similar causes beyond its control; provided, however, if such
delay exceeds sixty (60) days, the other party shall have the option,
exercisable by written notice, to cancel this Agreement pursuant to Article 11.
ARTICLE 19 - ASSIGNMENT AND BENEFITS
All of the terms and conditions of this Agreement shall be binding upon, inure
to the benefit of, and be enforceable by the respective successors and permitted
assigns of the parties hereto. Except as specifically stated in this Agreement,
neither this Agreement nor any of the rights, interests or obligations of any
party hereunder shall be assigned or delegated by either party hereto without
the prior written consent of the other. Such consent shall not be withheld
unreasonably. Any unauthorized assignment or delegation shall be null and void.
Notwithstanding the foregoing, either party may assign or otherwise transfer its
rights and obligations to successors in interest (whether by purchase of stock
or assets, merger, operation of law, or otherwise) of that portion of its
business related to the subject matter hereof without the consent of the other
party; provided, however, UNISYS may not assign its rights and obligations to
any of the parties then listed on Addendum E.
ARTICLE 20 - [**]
OSI warrants that [**] covered by this Agreement [**]. If, at any time during
the term of this Agreement, OSI [**].
ARTICLE 21 - GENERAL PROVISIONS
A. GOVERNING LAW
This Agreement shall be construed, governed and interpreted in accordance
with the laws of the State of Connecticut, other than the rules relating to
the choice of law.
B. CAPTIONS/HEADINGS
24
27
The captions and headings of the Articles, clauses and paragraphs contained
herein have been inserted for the convenience of the parties and shall not
be construed as a part of or modifying any provisions of this Agreement.
C. WAIVER
The failure of either party to insist in any one or more instances, upon
the performance of any of the terms, covenants or conditions of this
Agreement or to exercise any right hereunder, shall not be construed as a
waiver of the future performance of any such term, covenant or condition or
the future exercise of such right
D. SEVERABILITY
If any court should find any particular provision of this Agreement void,
illegal, or unenforceable, then that provision shall be regarded as
stricken from this Agreement and the remainder of this Agreement shall
remain in full force and effect.
E. INDEPENDENT CONTRACTORS
It is agreed that the relationship between the parties is that of
independent contractors, and nothing contained in this Agreement shall be
construed or implied to create the relationship of partners, joint
venturers, agent and principal, employer and employee, or any relationship
other than that of independent contractors. At no time shall either party
make any commitments or incur any charges or expenses for or in the name of
the other party.
F. CONFLICT OF INTEREST
OSI represents and warrants that it is under no obligation or restriction,
nor will it assume any such obligation or restriction which would in any
way interfere with or be inconsistent with the rights to the PACKAGE and
DOCUMENTATION granted to UNISYS under this Agreement.
G. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
together shall constitute one and the same instrument.
25
28
H. PUBLICITY
Neither party shall, except as may be required by law or federal
regulation, or except with the prior written permission of the other party,
publicly advertise this Agreement or disclose its contents.
I. RISK OF LOSS
Until such time as the deliverable items are in UNISYS possession, all risk
of loss shall be OSI's.
J. ENTIRE COMPENSATION
Except as may be specifically provided otherwise in this Agreement, OSI's
performance of the work and fulfillment of its other obligations under this
Agreement and the granting of licenses and rights to UNISYS shall be at no
cost or charge to UNISYS.
K. PERSONAL INJURY/PROPERTY DAMAGE
Each party (the "Indemnifying Party") shall hold harmless the other party
from any claim of personal injury or property damage to the extent that
such claim arises from any act or omission of the Indemnifying Party. Upon
request, either party shall furnish evidence of insurance coverage for such
injury and damage.
L. NOTICE OF DELAY
Whenever any occurrence (e.g., an event of Force Majeure or a filing under
a bankruptcy law) is delaying or threatens to delay either party's timely
performance under this Agreement, that party shall promptly give notice
thereof, including all relevant information with respect thereto, to the
other party.
M. COMPLIANCE WITH LAW
The parties shall in the performance of this Agreement comply with all
applicable laws, executive orders, regulations, ordinances, rules,
proclamations, demands and requisitions of national governments or of any
state, local or other governmental authority which may now or hereafter
govern performance hereunder including, without limitation, all laws,
executive orders, regulations, ordinances, rules and proclamations
regarding Equal Employment Opportunity, the exporting of technology, and
withholding for income taxes.
N. TAXES
26
29
The PACKAGE licensed hereunder to UNISYS is basically for sublicense to END
USERS and therefore should be exempt from sales, use and other similar
taxes. However, if such tax should be imposed on OSI, UNISYS shall either
bear such tax by a direct payment to the taxing authority or shall
reimburse OSI for such tax. UNISYS shall be responsible for any applicable
customs and duties related to its sublicensing of the PACKAGE.
O. ACCESS TO BOOKS
Through a mutually acceptable independent auditor, OSI shall have
reasonable access to the sufficient books and records of UNISYS once every
twelve (12) months for the sole purpose of determining the amounts due
hereunder, at OSI's own cost; provided, however, that such auditor agrees
to be bound by the provisions of Article 12.
P. ARBITRATION
1. Subject to Subparagraphs 2 through 5, below, any controversy or claim
arising out of or relating to this Agreement or the breach thereof
shall be settled by arbitration before three (3) arbitrators in
accordance with the Rules of the American Arbitration Association
("AAA") then in effect, and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction. Any such
arbitration shall be conducted in the city nearest OSI's office
having an AAA regional office. The arbitrators shall be selected from
a panel of persons having experience with and knowledge of electronic
computers and the computer business, and at least one of the
arbitrators selected shall be an attorney.
2. The arbitrators shall have no authority to award punitive damages nor
any other damages not measured by the prevailing party's actual
damages, and may not, in any event, make any ruling, finding or award
that does not conform to the terms and conditions of this Agreement.
3. Either party, before or during any arbitration, may apply to a court
having jurisdiction for a temporary restraining order or preliminary
or permanent injunction where such relief is necessary to protect its
interests pending completion of the arbitration proceedings.
27
30
4. Neither party nor the arbitrators may disclose the existence or
results of any arbitration hereunder without the prior written
consent of both parties.
5. Prior to initiation of arbitration or any other form of legal or
equitable proceeding, the aggrieved party shall give the other party
at least thirty (30) days prior written notice in accordance with
Article 10 describing the claim and amount as to which it intends to
initiate action, provided that nothing contained herein shall
prohibit either party from immediately seeking equitable relief to
enforce any provision of this Agreement from a court of competent
jurisdiction under such circumstances as that party's interests
hereunder and its property will be otherwise compromised.
ARTICLE 22 - ADDENDA/ATTACHMENTS
All Addenda, attachments and other documents referred to in this Agreement and
all specifications, drawings and documents referenced therein are hereby
incorporated in and made part of this Agreement.
ARTICLE 23 - SURVIVAL OF PROVISIONS
In addition to the rights and obligations which survive as expressly provided
for elsewhere in this Agreement, the Articles and Addenda which by their nature
should survive, shall survive and continue after any termination or cancellation
of this Agreement, and specifically Articles 11, 12, 14, 15, 16, and 19 shall
survive.
ARTICLE 24 - ENTIRE AGREEMENT
This Agreement states the entire agreement between the parties with respect to
the subject matter hereof and shall supersede all previous proposals,
negotiations, representations, commitments, writings, agreements and other
communications, both oral and written, between the parties with respect to the
subject matter hereof. This Agreement may not be released, discharged, changed
or modified except by an instrument in writing signed by a duly authorized
representative of each of the parties.
This Agreement has been duly signed by authorized representatives of the parties
and shall become effective as of the latest date set forth below (the "Effective
Date").
28
31
OPEN SOLUTIONS, INC. XXXXXX XXXXXXXXXXX
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxx X. Xxxxxx
Xxxxxxx Xxxxxxxx Xxxx X. Xxxxxx
Title: President Title: Corporate Senior Vice President,
President, PAAG
Date: 6/18/97 Date: 11 June 1997
29
32
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
SOFTWARE LICENSE AGREEMENT
ADDENDUM A
PACKAGE AND DOCUMENTATION
A PACKAGE
"The Complete Banking Solution" Modules:
Customer Service Representative System Operations
Teller Bank Operations
Loan Monetary Branch Operations
Loan CSR Product Manager
Loan Utilities External File Manager
Loan Investor Batch Manager
Loan Escrow Batch Server
Card Manager G/L Interface
OSI Data Model
B. DOCUMENTATION
[**]:
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**]
Marketing Literature:
Various brochures, advertisements and product descriptions
C. ENVIRONMENT
30
33
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
The PACKAGE operates on Intel based servers and personal computers
utilizing Microsoft Windows NT as the operating system and the Oracle
Relational Database Management System.
SOFTWARE LICENSE AGREEMENT
ADDENDUM B
COMPENSATION SCHEDULE
A. LICENSE FEES
Far the purpose of marketing activities, the suggested list price for the
PACKAGE will be [**] if OSI 's teller and Platform module is included in
the PACKAGE, or [**] if OSI's teller and Platform modules are not included
in the PACKAGE. The parties shall meet annually and review market pricing
in the territory, making revisions to the suggested list price as
appropriate. The suggested list price will also be reviewed if new
functionality with value in the territory is added to the PACKAGE.
The suggested list price far the SOURCE CODE far marketing activities will
be [**], or such other amount as the parties may mutually agree an a case
by case basis.
The actual price to be charged to END USERS will be determined by UNISYS in
its sole discretion.
License fees due OSI for the PACKAGE shall be calculated as [**] of the
suggested list price for the PACKAGE for each of the [**] sublicenses of
the PACKAGE in each calendar year. Thereafter, license fees due OSI shall
be calculated at [**] of the suggested list price for the PACKAGE for each
sublicense of the PACKAGE in any calendar year. In those instances where
UNISYS translates the PACKAGE, the license fee due OSI shall be reduced by
[**] for the [**] of each translation of the PACKAGE which are sublicensed
to END USERS.
31
34
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
B. SERVICES
OSI shall provide UNISYS with a [**] OSI standard service rates.
At the Effective Date, OSI's rates for training services are [**]. Rates
for implementation/installation/conversion services are [**]. Rates for
extraordinary support services are [**]. OSI shall provide UNISYS advance
written notice of any changes to such rates, and increases shall not be
effective for at least thirty days from the date of such notice.
C. SUPPORT FEES
Support fees due OSI for the PACKAGE shall be calculated as [**] of the net
annual maintenance fee charged by UNISYS to the END USER. For the purposes
of this Agreement, the net annual maintenance fee shall be deemed to be
[**] of the suggested list price for the PACKAGE licensed to the END USER.
32
35
SOFTWARE LICENSE AGREEMENT
ADDENDUM C
TRAVEL POLICY
LODGING: Accommodations shall be selected in accordance with the hotels and
the corresponding rates indicated in the Unisys Hotel Directory,
whenever possible.
The itemized hotel xxxx must be submitted as a receipt.
MEALS: The cost of all meals will be reimbursed an actual/reasonable
basis, except meals provided free of charge an airlines, at
hotels, at Unisys facilities, at Unisys sponsored meetings, etc.
Meals provided free of charge shall be itemized as such. Any meal
cost of ten dollars ($10) or greater must be supported with a
charge card or otherwise valid receipt.
CAR RENTAL: The rental of an automobile at a rate in excess of major rental
agency rates for standard automobiles is prohibited. The itemized
car rental agreement form must be submitted as a receipt
TRAVEL: All personnel must travel by coach or economy class for air and
rail travel. Unisys authorized travel of personnel by private auto
shall be compensated at the rate of thirty-one cents ($0.31) per
mile, plus tolls and parking fees. The ticket form for air or rail
travel must be submitted as a receipt
The above information is provided as a guideline and shall be adhered to
whenever possible. However, all reasonable, actual expenses incurred which are
submitted and supported by appropriate receipts (any expense of ten dollars or
greater must be supported with a charge card or otherwise valid receipt) shall
be reimbursed.
33
36
SOFTWARE LICENSE AGREEMENT
ADDENDUM D
EXCLUSIONS TO SUBCONTRACTOR DEFINITION
Phoenix International
Fiserv and its subsidiaries including information technology Inc. (ITI)
Bisys
Alltel
Broadway & Seymour
M&I Data Services
EastPoint Technologies
Peerless
XXX Xxxxxxxxxxx
Xxxx Xxxxx
Xxxxx Systems
Xxxxx Systems
Banctec
ACS
EDS and Its subsidiaries
Xxxxxxxx
Bankworks AG
LeapFrog Technologies
Bankline MidAmerica
IBM
Precision Systems
Sparak Systems
Data Dimensions Inc.
any regional financial service bureau or outsourcing organization serving the
U.S. banking marketplace
34
37
SOFTWARE LICENSE AGREEMENT
EXHIBIT 1 PAGE 1 OF 2
U N I S Y S
USER COMMUNICATION FORM (UCF) - (SIMULATION)
To: SUPPORT ACTIVITY LOCATION)
UCF# (DIST/SUB/COUNTRY)*(BRANCH/LOC)*(CUSTOMER REF)
DATE PREPARED: __________________
CLASS: FORM TYPE:
[ ] Software [ ] Hardware [ ] Application [ ] MTR [ ] Problem [ ] Feature
Suggestion
================================================================================
PRODUCT/SYSTEM DESCRIPTION
================================================================================
(HOST PROCESSOR/MACHINE TYPE) (SYSTEM RELEASE) (UNIT STYLE) (SERIAL NO.)
(PRODUCT) (LEVEL) (COMPONENT)
(FIRMWARE) (FIRMWARE LEVEL) (OP SYSTEM) (OS LEVEL)
OCCURRENCES REPRODUCIBLE PRODUCT STATUS PRIORITY
[ ] ONE-TIME [ ] YES [ ] UN-USABLE [ ]PROBLEM AVOIDABLE [ ]A [ ] C
[ ] MULTIPLE [ ] NO [ ] DEGRADED [ ] SYSTEM UNAFFECTED [ ]B
================================================================================
MATERIALS
================================================================================
MATERIALS ATTACHED (Dump, Trace, Data, Obj. Code, Listing, Parts, Tape) No. ___
[ ] YES [ ] NO (MATERIALS DESCRIPTION)
[ ] ADDITIONAL INFORMATION (Previous UCF Reg. No) (Previous UCF Ref #)
[ ] FORWARDED UNDER SEPARATE COVER (Comments)
================================================================================
DESCRIPTION
================================================================================
CONCISE DESCRIPTION (MAXIMUM 76 CHARS)
_______________________________________________________________
_______________________________________________________________
(OPERATIONS IMPACT)
(PERTINENT CONFIGURATION)
(FULL DESCRIPTION)
(ANALYSIS/WORKAROUND)
[ ] DESCRIPTION CONTINUED
SUGGESTED FIXED ATTACHED SITE TESTED
[ ] YES [ ] NO [ ] YES [ ] NO
================================================================================
38
SOFTWARE LICENSE AGREEMENT
EXHIBIT 1 PAGE 2 OF 2
U N I S Y S
USER COMMUNICATION FORM (UCF) - (SIMULATION)
================================================================================
SITE
IDENTIFICATION
================================================================================
(ORIGINATOR'S NAME) (UNISYS SITE NUMBER)
(COMPANY NAME) (TELEPHONE NUMBER)
(ADDRESS) (TELEX/DEX NUMBER)
(CITY, STATE, COUNTRY, ZIP CODE)
================================================================================
SUPPORT (UNISYS USE ONLY)
================================================================================
(Reviewer)
(Title) (Organization) (Phone Number) (Telex/Dex Number)
--------------------------------------------------------------------------------
(Address) (Date Acknowledged) (Date Received) (Authorization Number)
--------------------------------------------------------------------------------
(City, State, Country, Zip Code) (Assigned Priority) (Register Number)
--------------------------------------------------------------------------------
(Keywords Minimum of One) (Keyword Dictionary)
