Exhibit 10.52
STATE OF NEW YORK
NEW YORK STATE DEPARTMENT OF LABOR
AMENDMENT NO. 2 TO
COMPTROLLER'S CONTRACT NO. C000857
WITH APPLIED THEORY CORPORATION
THIS AGREEMENT is made this 5th day of October, 2001 by and between the
People of the State of New York, acting by and through Xxxxx Xxxxxxx, the
Commissioner of labor whose office is at the 5th Floor of Building 12. Governor
H. Xxxxxxx Xxxxxxxx Xxxxx Xxxxxx Xxxxxxxx Xxxxxx. Xxxxxx. Xxx Xxxx 00000
(hereinafter referred to as "Labor" or "State") and Applied Theory Corporation,
Inc., a corporation authorized to do business in the State of New York, with an
office at 000 Xxxxxxxx Xxxxxx Xxxxxxxx, X.X. 00000 (hereinafter referred to as
"Applied theory" or "Contractor")
W I T N E S S E T H:
WHEREAS, the parties entered into Comptroller's Contract No. C000857
(hereinafter "Contract") approved by the State Comptroller on November 30, 2000.
for the provision of Software development and maintenance. Web Hosting and Help
Desk services (hereinafter "Software Services"), and
WHEREAS, the Contract provided for the Department to spend $19,000,000
for Software Services and to increase additional expenditures in an amount of up
to $82,000,000 over a term of five (5) years subject to the periodic extension
of funding (hereinafter "Contract Funding") from the United States Department of
Labor, and
WHEREAS, Amendment No. 1 increased the Contract Funding $4,833,407 to
provide additional Software Services, and
WHEREAS, the State has received a new grant from the United States
Department of Labor in an amount of $25,540,000 to continue procuring the
Software Services, and
WHEREAS, the State is desirous of amending the Contract to effectuate
an increase in the Contract Funding and to modify the licensing terms contained
in the Contract, and
WHEREAS, AppliedTheory is ready, willing and able to enter into such an
amendment (hereinafter "Contract Amendment").
NOW THEREFORE, in consideration of the mutual undertakings and
covenants herein contained the parties agree as follows:
1. The Contract Funding is hereby increased to permit the
Department to spend an additional $25,540,000 for Software
Services in accordance with the rates and terms contained in
the Contract and the Scope of Services, attached hereto and
hereby incorporated by reference.
2. The Contract shall be further modified by deleting section 12
of the Contract and Appendix D and replacing section 12 with
the following:
"12. PROPRIETARY RIGHTS
12.1 Definitions.
(a) "Deliverables." Shall mean any items to be delivered
by AppliedTheory to the Department under this Agreement.
(b) "Field of Agreement" The limited field of marketing
and licensing the Software to third parties for the purpose of
providing services relating to government-sponsored job
searches, including management of "welfare-to-work" programs,
collection of labor market information and tracking of
employers, job seekers and job training programs under federal
and state programs.
(c) "Software" Shall mean the software AppliedTheory
provides to the Department including that provided under
previous agreements as more particularly described in Appendix
E hereto, which is hereby incorporated by reference, including
all modifications, enhancements and revisions to such software
made by or through either of the parties hereto.
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12.2 Ownership by the Department. All Software and
Deliverable developed by AppliedTheory under this Agreement
will be owned by the Department, will be considered, where
applicable, to be "works made for hire" as defined in the U.S.
Copyright Act, are hereby assigned to the Department;
provided, however, that in the event the Department shall fail
to make any of the payments required by this Agreement, such
assignment shall be null and void, and such Software,
Deliverable and the copyrights thereto will be automatically
reassigned to AppliedTheory. Each party agrees to execute all
papers and perform all other acts reasonably necessary to
assist the other to obtain and register copyrights and to
effectuate the intention of this Agreement. Notwithstanding
the foregoing, AppliedTheory will be free, at any time, to use
for any purpose any technical and business knowledge, skill,
expertise and processes of a generic nature acquired by
AppliedTheory in its performance under this Agreement.
12.3 Use of Residuals. AppliedTheory shall be free to use
Residuals for any purpose, including the use in development,
manufacture, marketing, and maintenance of its own products
and services. "Residuals" shall mean any intellectual property
contained therein or relating thereto (including the function,
structure, sequence, or organization thereof), which may be
retained in intangible form (i.e., not in written or other
documentary or electronic form) by AppliedTheory personnel,
as applicable, having had access to it.
12.4 Grant-Back License. AppliedTheory shall have the
right, and the Department hereby grants AppliedTheory a fully
paid, perpetual, irrevocable, transferable license, with the
right to sublicense, to use, modify, enhance, improve, market
and sublicense Components of the Software and Deliverables for
any purpose (other than providing services in the Field of
Agreement or enabling any other person or entity to provide
services in the Field of Agreement during the term of this
Agreement.) The preceding sentence shall not limit
AppliedTheory's right to use modify, enhance, improve, market
and sublicense Components of the Software and Deliverables
which come into the public domain other than through the fault
of AppliedTheory. For the purposes of this paragraph,
"Component" shall mean a software object (function, procedure,
etc.) that forms a constituent or basic building block of a
larger software program, that contains a number of lines of
programming that together perform one simple or elemental
function, that is not so complex that it might be considered a
program in and of itself (i.e. a search engine).
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12.5 Third-Party Software. To the extent that any software
owned by third parties ("Third-Party Software") is
incorporated in the Software or otherwise necessary for the
operation of the Software, the Department shall be responsible
for obtaining appropriate licenses for the use of such
software at its own cost and expense: provided, that with
respect to any Third-Party Software for which AppliedTheory
has the right to grant sublicenses. AppliedTheory hereby
grants to the Department the right to use such Third-Party
Software solely in connection with its use of the Software in
accordance with this Agreement and the Department shall pay to
AppliedTheory any fees payable in connection with such grant.
12.6 Deliverables. AppliedTheory will deliver to the
Department one copy of the Software in object code form, and
one copy of the Software in Source Code Form. For purposes
hereof, the term "Source Code Form" shall mean a
well-documented listing in printed form of the source code
(i.e. human intelligible version) of the Software, the related
instructions and compilers necessary for building that
software into object code and written materials sufficient to
permit a person skilled in the language of the source code to
follow and understand the theory and sequence of program
operation and to maintain and modify the program."
3. This Agreement shall be deemed executory only to the extent of
money available to the Stale for the performance of the terms hereof
and no liability on account thereof shall be incurred by the State of
New York beyond moneys available for purpose thereof.
4. This Agreement shall be governed by the laws of the State of
New York.
5. Appendix A. standard clauses for New York State contracts,
attached hereto, is hereby expressly made a part of this Agreement as
fully as if set forth at length herein.
6. In all respects not inconsistent with this Contract Amendment,
the terms of the Contract as originally entered into shall remain in
full force and effect and binding upon the parties hereto.
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7. This Contract Amendment and the Contract. constitute the
entire Agreement between the parties hereto and no statement, promise,
condition, understanding, inducement or representation, oral or
written, expressed or implied, which is not contained herein shall be
binding or valid and this Agreement shall not be changed, modified or
altered in any manner except by an instrument in writing executed by
both parties hereto.
8. This Contract Amendment shall not be deemed executed, valid or
binding unless and until approved in writing by the Attorney General
and the State Comptroller.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
CONTRACT NUMBER C000857
Agency Certification
"In addition to the acceptance of
this contract, I also certify that
original copies of this signature
page will be attached to all other
exact copies of this contract."
APPLIED THEORY THE PEOPLE OF THE STATE
CORPORATION OF NEW YORK
By: /s/ Angello Xxxxxxxxxx III By: /s/ Xxxx X. Xxxxxxx
---------------------------------- --------------------------------
NAME: Angello Xxxxxxxxxx III NAME: Xxxx X. Xxxxxxx
TITLE: Sr. VP & CFO TITLE: Principal Accountant (ES)
FEDERAL I.D. No.:161491203 10/12/01
APPROVED AS TO FORM APPROVED
XXXXX XXXXXXX H. XXXX XXXXXX
ATTORNEY GENERAL STATE COMPTROLLER
CORPORATE ACKNOWLEDGEMENT
STATE OF NEW YORK }
}SS:
COUNTY OF Onondaga }
On the 10th day of October in the year 2001 before me personally came
Xxxxxx Xxxxxxxxxx III to me known, who, being by me duly sworn did depose and
say the he resides at Liverpool, NY; that he is the SVP & CFO of the Applied
Theory Corporation, the corporation described in and which executed the above
instrument; and that he signed his/her name thereto by authority of the Board of
Directors of said corporation.
/s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Notary Public
OFFICE OF THE STATE COMPTROLLER
Approved 11/5/2001
Dept. of Audit & Control
NAME Illegible
