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Exhibit 10.27
DISTRIBUTOR AGREEMENT
This DISTRIBUTOR AGREEMENT (the "Agreement") is entered into as of this
12th day of May, 1998, (the "Agreement Date"), between SS&C Technologies,
Incorporated ("SS&C"), a Delaware corporation with an address for purposes of
this Agreement at 000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000, and GFI
Caminus LLC (except where the context indicates otherwise, collectively with its
subsidiaries, ZAI*NET Software, L.P., a Delaware limited partnership
("ZAI*NET"), and Caminus Energy Limited, an English company ("Caminus"), "GFI
Caminus"), a Delaware limited liability company with an address for the purposes
of this Agreement at 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000.
WHEREAS SS&C desires to acquire a non-exclusive world-wide license to
sell and distribute certain software products proprietary to GFI Caminus as set
forth in this Agreement, and whereas GFI Caminus desires to issue and assign
such license to SS&C;
WHEREAS GFI Caminus and SS&C desire to work together to establish an
enterprise distribution network with respect to the aforementioned
distributorship licenses;
NOW THEREFORE, in consideration of the premises and the respective
representations, warranties and agreements contained herein and in the Limited
Liability Company Agreement of GFI Caminus dated as of even date herewith (the
"LLC Agreement"), the parties hereto hereby agree as follows:
1. Certain Definitions.
"Category One Product" shall mean any existing SS&C Product set forth on
Schedule 1 hereto.
"Category Two Product" shall mean any module, upgrade, enhancement or
similar or analogous software based upon a Category One Product that is
developed by employees and/or agents of SS&C (whether or not with the
assistance of GFI Caminus and whether or not such module, upgrade,
enhancement or similar or analogous software utilizes source code written
and/or supplied by GFI Caminus) but modified to relate to energy assets.
"Category Three Product" shall mean any software program or product that
is not a Category One Product or Category Two Product and that is
developed by employees and/or agents of GFI Caminus (whether or not with
the assistance of SS&C as provided for herein and whether or not such
program or product utilizes source code written and/or supplied by SS&C),
as set forth on Schedule 1 hereto, together with any fixes, updates, new
versions, revisions, and enhancements provided by GFI Caminus or created
by or on behalf of GFI Caminus (whether or not with the assistance of
SS&C) with respect to such programs or products in accordance with the
terms hereof.
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"Customer" shall mean an end-user of Products, licensed to use the
relevant Products in the operation of its business and not for purposes
of resale or other distribution.
"Directly Competitive" shall mean, with respect to any Category Three
Product or Outsourcing Services, any other product that would be
generally recognized as either a replacement of or substitute for such
Product or Outsourcing Service in the relevant industry, or would likely
be included in a competitive bid by third parties seeking business
solutions which are typically filled by such Products or Outsourcing
Services.
"Energy Market" shall mean utilities, energy providers, marketers or
traders or other participants in the buying or selling of energy or
energy related products or derivatives thereof throughout the world.
"Error" shall mean the failure of a Product to function in accordance
with its specifications as contained in its on-line help text.
"GFI Caminus Materials" shall mean the materials accompanying or related
to the Category Three Products as provided by GFI Caminus, embodying the
Category Three Product, Category Three Product documentation (whether in
printed or electronic form), manuals, education materials, product
brochures and other collaterals, and the like, which may be provided on
magnetic media, via the internet or in tangible form as determined by GFI
Caminus.
"Keys" shall mean the security clearance codes necessary for a Customer
to use a Product or Products.
"License Agreement" shall mean the standard license agreement of GFI
Caminus with respect to the licensing of Category Three Products
(modified to reflect the terms hereof), initially substantially in the
form attached hereto as Exhibit A.
"License Fees" shall mean fees owed by a Customer for the right to use a
Product or Products under a License Agreement.
"Maintenance Fees" shall mean fees owed by a Customer for Maintenance
Support provided with respect to any Product or Products licensed by such
customer under a License Agreement.
"Maintenance Support" shall mean telephone response line service during
normal business hours, error correction through the supply of temporary
fixes, and the incorporation of new releases of the Products as supplied
by SS&C or GFI Caminus, as the case may be, into the Customers' copies of
the Products, as more fully specified in the Maintenance Support
Agreement.
"Maintenance Support Agreements" shall mean the standard maintenance
support agreement of GFI Caminus with respect to maintenance to be
provided for the Category Three Products, as provided to SS&C from time
to time upon the modification thereof.
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"Materials" shall mean either of the SS&C Materials or the GFI Caminus
Materials, as the context may require.
"Order" shall mean written notification from SS&C that a Customer has
licensed a GFI Caminus Product or GFI Caminus Products. A form of the
Order is attached hereto as Exhibit B.
"Outsourcing Services" shall mean processing services which are provided
to third parties by GFI Caminus using Category Three Products, which
services would be generally recognized as either a replacement of,
substitute for or supplement to the licensing of a particular Product to
such third parties.
"Product" shall mean either an SS&C Product or a Category Three Product,
as the context requires.
"SS&C Materials" shall mean the materials accompanying or related to the
SS&C Products as provided by SS&C, embodying the SS&C Product, SS&C
Product documentation (whether in printed or electronic form), manuals,
education materials, product brochures and other collaterals, and the
like, which may be provided on magnetic media, via the internet or in
tangible form as determined by SS&C.
"SS&C Products" shall mean Category One Products and Category Two
Products, together with any fixes, updates, new versions, revisions, and
enhancements provided by SS&C or created by or on behalf or with the
assistance of GFI Caminus in accordance with the terms hereof.
"Standard Price" or "Standard Prices" shall mean, with respect to any
Product, the standard License Fees, Maintenance Fees and other charges
applicable in the Territory in U.S. Dollars or local country currency, as
SS&C or GFI Caminus may determine from time to time, as the case may be.
The initial Standard Prices are as set forth on Schedule 1 hereto.
"Territory" shall mean and include the entire world, except as set forth
on Schedule 1 hereto and except as may be modified in writing by the
parties from time to time as set forth herein.
2. Appointment of SS&C; Duties.
a) Non-exclusive License. GFI Caminus hereby retains SS&C, and SS&C
hereby agrees to be so retained, as a non-exclusive distributor
and marketer of Category Three Products throughout the Territory
with the right to distribute and market such Products other than
to the Energy Market during the Initial Term and any subsequent
renewal terms provided for in Section 5 below, on the further
terms and subject to the further conditions as set forth in this
Agreement.
1) SS&C shall have the non-exclusive right, and hereby accepts
such right, to solicit Customers located in the Territory
and to license the Category Three Products and accompanying
documentation to Customers other than
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those in the Energy Market.
2) Notwithstanding anything herein to the contrary, in no
event shall SS&C have the right to distribute or market any
Category Three Product in or to the Energy Market.
b) Sales Assistance.
1) Staff; Training. SS&C agrees to use commercially reasonable
efforts to train its sales force in the licensing of
Category Three Products and to provide technical and/or
support personnel for technical sales and implementation
consulting services to Customers with respect to Category
Three Products. GFI Caminus agrees to provide reasonable
assistance as requested by SS&C with respect to the
training, qualification and selection of such
representatives.
2) Marketing. SS&C will be responsible for marketing,
implementation, on-site education services and license
solicitation with respect to the Category Three Products in
the Territory and shall use commercially reasonable efforts
in promoting the licensing of the Category Three Products,
all at no cost to GFI Caminus. GFI Caminus will provide
reasonable assistance as requested by SS&C with respect to
the marketing of Category Three Products. Such assistance
may include presentations made at prospective Customer's
site(s), and shall be provided at no charge.
3) Product Literature. Upon GFI Caminus's request, SS&C will
submit all materials and documentation that it has created
pursuant to this Agreement (including, but not limited to,
materials containing trade secret or proprietary
information about a Category Three Product, marketing and
promotional materials) to GFI Caminus for review and
approval, which approval shall not be unreasonably
withheld. SS&C will include on all such materials any
notice of copyright, trademark or other marking used by GFI
Caminus on its own comparable materials or specifically
requested by it.
c) Licensing.
1) Exclusive Means of Licensing. SS&C agrees to offer Category
Three Products for licensing only under the terms of the
License Agreement. The failure of SS&C to include any of
the provisions set forth in the License Agreement in any of
its licensing agreements with Customers purchasing or
licensing Category Three Products without GFI Caminus's
prior written consent shall be a material breach of this
Agreement.
2) Orders. SS&C will submit a written Order to GFI Caminus for
each Category Three Product proposed to be licensed or
provided to any Customer or third party. Each Order must be
submitted within three (3) business days of each occasion
where SS&C has provided the SS&C
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Products to another entity, including all Customers. Each
Order shall contain all of the information specified in
Exhibit B. SS&C shall cause such Customer to execute and
enter into a License Agreement with respect to such
Category Three Product, and shall, within three (3)
business days of the execution of such License Agreement,
provide an executed copy thereof, as well as a copy of the
Customer Non-Disclosure Agreements (if any) for such
Customer, to GFI Caminus.
3) Promptly upon receipt of an executed License Agreement, GFI
Caminus shall transmit to the relevant Customer all
necessary Keys for purposes of implementing the Category
Three Product licensed thereto.
4) Customer Breach. In the event of a breach by a Customer of
the terms of a License Agreement, SS&C will promptly notify
GFI Caminus and take all reasonable steps which may be
necessary to remedy the breach, including taking actions
for seizure or injunctive relief. For each License
Agreement which is terminated, SS&C will provide GFI
Caminus with prompt written notice and the reason for
termination.
d) Distribution. GFI Caminus will provide SS&C with a master copy of
the Category Three Products and GFI Caminus Materials. GFI Caminus
agrees to manufacture copies of the Category Three Products and
GFI Caminus Materials and distribute those copies to Customers of
Category Three Products, per SS&C's request. SS&C is authorized to
manufacture copies of the Category Three Products and GFI Caminus
Materials, and to distribute those copies to its Customers,
provided that in each case a valid License Agreement has been
signed by such Customer.
e) Maintenance and Other Fees. The parties agree that fees for
implementation consulting services shall be earned and retained by
whichever of them performs the applicable services. The parties
agree that GFI Caminus shall provide Maintenance Support for the
Category Three Products, and SS&C agrees to use commercially
reasonable efforts to cause Customers of Category Three Products
to enter into GFI Caminus Maintenance Support Agreements at GFI
Caminus' then current standard rates and terms. The party entitled
to retain fees referred to in this paragraph shall be solely
responsible for collecting such fees and providing the
corresponding services to the Customer, and will indemnify the
other party and hold it harmless from and against any complaints
or claims from the Customer related thereto.
3. Fees and Royalties.
a) Standard Prices. GFI Caminus may change the Standard Prices with
respect to its Products with ninety (90) days' prior written
notice. To the maximum extent permitted by law, SS&C will not
license the Products of GFI Caminus to any prospective Customer
with a License Fee which differs from the Standard Prices by more
than the standard discount as set forth in Schedule 1 hereto (as
modified
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from time to time) unless agreed upon in advance between SS&C and
GFI Caminus.
b) Royalties. The licensing of Category Three Products by Customers
of SS&C shall be without royalty to SS&C; instead, GFI Caminus
shall be entitled to all License Fees and a percentage of the
License Fees received by GFI Caminus as a result of such licensing
activity by SS&C (including such License Fees received by GFI
Caminus after the termination of this Agreement) shall be credited
as Incremental License Revenues for purposes of Section 5.2 of
Appendix B to the LLC Agreement (such credit to be applied
regardless of GFI Caminus's receipt of such License Fees). The
percentage of such License Fees so credited shall be as agreed
upon by the parties in connection with each such license
transaction (taking into account SS&C's "degree" of responsibility
for the sale, evaluating such factors as lead generation,
prospecting, the degree of cooperative selling, etc.).
Notwithstanding the foregoing sentence, in no event shall the
percentage of such License Fees so credited be less than five
percent (5%) (the "Minimum Percentage"). GFI Caminus shall invoice
Customers for the Category Three Products for applicable License
Fees, and shall be responsible for collecting such License Fees.
4. Reporting.
a) Within ten (10) business days after the start of each calendar
quarter, SS&C will furnish to GFI Caminus a report forecasting its
prospective sales of Products, such report to be in a format which
is mutually agreeable to both parties.
b) At the end of each Quota Period, SS&C shall submit to GFI Caminus
a statement regarding License Agreement(s) entered into by SS&C
and its Customers.
5. Term and Termination.
a) The "Initial Term" of the Agreement is the five (5) years
beginning on the Agreement Date, unless terminated as provided
below. The Initial Term shall be extended automatically for
successive one year periods until either party notifies the other
to the contrary at least ninety (90) calendar days in advance of
the commencement of the next one year period, which either party
may do entirely in its discretion.
b) GFI Caminus may terminate this Agreement immediately, by written
notice to that effect, if SS&C distributes, without the prior
written consent of GFI Caminus, any confidential GFI Caminus
Materials or Information (as hereinafter defined) prior to
execution of the applicable License Agreement if such distribution
is knowing or intentional or if it otherwise subjects the other
party to any material risk or prejudice.
c) GFI Caminus may terminate this Agreement immediately, by written
notice to that effect, if SS&C distributes, without the prior
written consent of GFI Caminus,
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any materials that enable the recipient to use any Product of GFI
Caminus prior to execution of the applicable License Agreement.
d) Either party may terminate this Agreement immediately, by written
notice to that effect, if:
1) The other party commits any other material breach of this
Agreement, and fails to remedy that breach fully within
thirty (30) calendar days after notice to that effect from
the terminating party; or
2) The other party becomes bankrupt or unable to pay its debts
as and when due.
e) In the event of termination or expiration of this Agreement for
any reason:
1) Return or Destruction of Products. Each party will, at the
option of the other party, either:
i) deliver to the other party all of such other party's
Materials and all copies of its products in the
possession of such party, as well as all other items
containing Information of such other party (as
hereinafter defined), or
ii) destroy all of those items.
2) Officer's Certificate. Each party will furnish to the other
with a certificate signed by an officer of the other
warranting compliance with the requirements of Section
6(e)(1). Such actions will not eliminate the obligations of
either party to ensure confidential treatment of the
Information.
3) Business in the Pipeline. SS&C will immediately provide GFI
Caminus with a list of prospective customers, details of
any proposals made, and the status of each sale, including
all information which is required to be reported as
specified in Section 5(a) above. A prospective customer
includes without limitation any company to which were made,
given or provided proposals, quotes, Product
demonstrations, presentations or sales calls.
i) GFI Caminus hereby agrees to honor any written
commitments made by the other on its behalf in
compliance with the terms of this Agreement and the
License Agreement, and will use reasonable efforts
(resources permitting) to close any potential
business within a reasonable time.
ii) For any License Agreements executed between GFI
Caminus and an identified prospect within 120 days
from the effective date of the termination of this
Agreement, GFI Caminus will credit to
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SS&C as Incremental License Revenues for purposes of
Section 5.2 of Appendix B to the LLC Agreement an
amount equal to (1) the License Fees that GFI
Caminus receives pursuant to such License Agreements
(minus any additional direct expenses (including
travel and additional commissions) incurred by GFI
Caminus in order to close such sales) multiplied by
(2) the Minimum Percentage as specified in Section
3(b) hereof. This credit will be applied within 45
days from the end of the quarter within which GFI
Caminus receives the License Fees.
4) Business Transition.
i) Upon the termination of this Agreement, the rights
and obligations under all of the License Agreements
will be automatically assigned from SS&C to GFI
Caminus.
ii) Each party, upon the reasonable request of the
other, will participate in joint communications
and/or sales calls to Customers for the purpose of
managing a smooth transition, and to use reasonable
efforts to secure each Customer's written agreement
to the automatic assignment of each License
Agreement as set forth above.
iii) GFI Caminus will be required to assume or perform
any obligation that SS&C may have undertaken which
is in addition to or inconsistent with the
obligations of GFI Caminus under its respective
License Agreement without GFI Caminus's express
acceptance or written agreement, and SS&C will
indemnify GFI Caminus against any loss, liability,
or expense that GFI Caminus may incur in connection
with the same.
5) Balance Owing. Within ninety (90) calendar days after
notice of termination, SS&C and GFI Caminus shall agree on
the current outstanding balance of all monies due to SS&C
and GFI Caminus through the date of termination.
f) Each party's obligations of confidentiality and Sections 1,
2(d)(1), 3, 5, 6, 7(a), 8(c), 8(d), 9, 10, and 11 shall survive
the termination of the parties' relationship under this Agreement
or of the Agreement itself.
6. Proprietary Rights. Each party acknowledges that the information about
the Materials and Products and about all copies, translations,
adaptations, updates or modifications which are part of the Products of
the other party (collectively, the "Information") is proprietary to and
may embody trade secrets or other intellectual property rights of the
other party, or third parties which have granted such other party the
right to sublicense such Products. Each party specifically acknowledges
and agrees that the other may use security codes and other devices of its
choosing to prevent unauthorized copying of such
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other party's Products and agrees that it shall not make or permit any
efforts to reverse engineer or otherwise defeat these codes and that it
shall retain these codes in all copies of the Products.
a) Each party will use its best efforts to protect the Information of
the other party from disclosure or transfer to third persons,
except:
1) Customers of Category Three Products under fully executed
License Agreements;
2) Those employees of either party who both have a need to
know the Information in connection with providing the
services called for in this Agreement by either party and
who acknowledge the proprietary nature of the Information,
and have entered into written nondisclosure agreements
prohibiting the disclosure of Information, except as
permitted in this Section 6; or
3) Those employees of a prospective Customer who have executed
non-disclosure agreements with GFI Caminus and SS&C in the
form of the agreement attached hereto as Exhibit C (the
"Customer Non-Disclosure Agreement") to determine whether
to enter into a License Agreement, and only under
circumstances of a demonstration to a bona-fide prospect
whereby GFI Caminus retains responsibility for the
supervision of such demonstration.
b) All patents, copyrights, trade secrets, and other proprietary
rights in or related to the Products, Information, and Materials
are and will remain the exclusive property of the party from whom
such items originated or a third party which has granted such
party the right to sublicense such rights whether or not
recognized or perfected under the laws of the Territory. Neither
party will take any action that jeopardizes such proprietary
rights of the other party or acquire any right in such Products,
Information, or Materials, except the right to use the Products as
specifically provided under this Agreement. Each party, or the
third party which has granted such party the right to sublicense
the programs, will own all rights in any copy, translation,
adaptation, compilation, selection, arrangement or derivation of
the Products, Information, or Materials of such party, including
any significant improvement or development thereof. At the request
of a party, the other party will obtain the execution of any
instrument that may be required to assign these rights to such
requesting party or perfect these rights in such party's name.
c) Each party will use the Products, Information, and Materials of
the other party only to perform its activities and obligations
under this Agreement. Neither party will copy, translate, adapt,
decompile, dissemble, or reverse engineer the Products of the
other party (except as expressly provided in this Agreement)
without such other party's specific prior written approval.
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d) Neither party may create, license, sell or support any Products or
modifications to the Products of the other party for or to any
person who is not an authorized Customer of the Products or who
has failed to pay or perform any of its obligations under the
relevant License Agreement, including without limitation
obligations to pay License Fees, and to protect the
confidentiality of the Products as required in the License
Agreement.
1) To the extent that they are not part of the Category Three
Products, SS&C will retain ownership of separate computer
programs created under separate agreements with Customers
of Category Three Products for use with such Products. SS&C
hereby grants GFI Caminus a fully-paid, royalty-free,
perpetual license (which shall survive termination of this
Agreement for any reason) to use, modify, copy and
sublicense all such programs to the extent necessary to
enable GFI Caminus, at GFI Caminus's sole option, to
provide support services to such Customer for the Category
Three Products and such programs, and/or (with SS&C's prior
consent) to integrate such programs into a Category Three
Product. GFI Caminus provides no warranty, and GFI Caminus
shall not be required to modify or provide any support
services, with respect to such programs. SS&C shall not
make any representations or warranties on GFI Caminus's
behalf, nor indicate that GFI Caminus supports such
programs.
2) Notwithstanding anything in this Agreement to the contrary,
and except for such rights and licenses as are provided to
the other party pursuant to this Agreement, (i) all
Category One Products and all Category Two Products are the
exclusive property of SS&C, and (ii) all Category Three
Products are the exclusive property of GFI Caminus.
e) All Error corrections with respect to Category Three Products
("GFI Caminus Corrections") which are at any time created by or on
behalf of SS&C are and shall be the sole property of GFI Caminus;
SS&C hereby assigns and agrees to assign any and all copyrights,
inventions, patents and rights to apply for patents, trade
secrets, moral rights and other intellectual and industrial
property rights in such GFI Caminus Corrections to GFI Caminus;
SS&C hereby agrees that all such GFI Caminus Corrections shall be
deemed for all purposes to be "works made for hire" under the US
and all applicable copyright laws and SS&C hereby waives and
agrees to not assert any moral rights which may arise therein;
SS&C agrees to obtain from all of its employees and other parties
participating or contributing to the creation of GFI Caminus
Corrections written agreements which comply with this provision
and under which all such rights are vested in or assigned to GFI
Caminus or waived, as provided herein; and SS&C agrees to execute
and deliver all papers, agreements and instruments and to take all
other actions requested by GFI Caminus in order to effectively
accomplish the foregoing. Except as set forth in this Section
6(e), Section 6(b) hereof shall apply to all such GFI Caminus
Corrections.
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f) Each party will use its best efforts to protect the proprietary or
confidential information received from those customers or
prospective customers of the other party, and the subsidiaries and
affiliates of these Customers and prospective Customers, from
disclosure or transfer to third persons, except to those employees
of the other party who (i) have a need to know the information in
connection with providing the services set forth herein and (ii)
who acknowledge the proprietary nature of the customer information
and materials and agree not to disclose the information, except as
permitted in this Paragraph 6(f).
7. Trademarks.
a) SS&C acknowledges that "ZAI*NET" and other Category Three Product
names are the registered or common law trademarks of GFI Caminus,
and agrees that it shall not register these marks or any other GFI
Caminus trademark, service xxxx, trade name, or company name or
use the same in any fashion or for any purpose, except in
connection with its activities under this Agreement. In the event
that GFI Caminus registers a trademark in the Territory, SS&C
shall, at GFI Caminus's request, file as a registered user of the
xxxx.
b) GFI Caminus will grant a limited license to SS&C to use GFI
Caminus's trademarks to the extent reasonably necessary to enable
SS&C to perform its obligations under this Agreement pursuant to a
separate written agreement between the parties.
8. Other Terms.
a) GFI Caminus will furnish SS&C, upon SS&C's reasonable request,
free of charges other than media and distribution charges, with
the following Materials: one (1) copy each of source (as generally
available) and object code for the Category Three Products, and
one (1) copy of existing user documentation for the Category Three
Products, Category Three Product fixes and releases generally made
available by ZAI*NET or GFI Caminus to its customers, and
distributors. Additional copies of the foregoing materials, as
well as copies of all promotional materials created by GFI Caminus
or ZAI*NET, will be furnished on request for a reasonable charge
(including freight and customs, if applicable), established by GFI
Caminus. License Agreements will be executed by SS&C at the
inception of the Agreement, and appropriate Schedules to such
License Agreement(s) will be executed as part of the request
process for these Materials.
b) Each party shall maintain accurate records of payments received
under this Agreement and all License Agreements for a period of at
least three (3) years from date of payment. For so long as either
party is entitled to receive payments in connection with a License
Agreement, and for six (6) months thereafter, the party so
entitled may cause the other party's records related to such
License Agreement to be audited by an auditor selected by the
unanimous agreement of the parties, and such other party will
provide the entitled party with reasonable access to these
records; provided, however, that the audits may be conducted no
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more frequently than twice per calendar year. If an audit reveals
any underpayment, such underpayment shall promptly be remedied by
the underpaying party.
c) Neither party will enter into any agreements which violate or
conflict with the terms of this Agreement, nor do any act, or make
any omission, that is unlawful in the country, state, or province
in which it occurs.
d) Other Licensees.
1) SS&C may from time to time engage (i) a subsidiary or
affiliate entity or person or (ii) subcontractors
("Contractors") to perform certain of its consulting
services or similar obligations hereunder.
2) SS&C may from time to time wish to engage a third party to
solicit Customers of the Products within the Territory
("Sales Agents").
3) No Sales Agent may be engaged by SS&C without GFI Caminus's
prior approval. Without limiting the foregoing, no Sales
Agent may be engaged for any purpose or given any access to
any Products if such prospective Sales Agent markets,
supports or distributes or in any way represents a software
product which is Directly Competitive with a Category Three
Product.
4) All Contractors and Sales Agents shall be engaged under
written agreements which contain the same provisions as
this Agreement as deemed applicable by the parties hereto,
and which terminate immediately upon termination of this
Agreement by either party for any reason.
5) All Contractors and Sales Agents may be provided licenses
to the Products and Information only under fully executed
License Agreements, without warranty, and they shall be
considered as "Customers" under this Agreement. With
respect to such License Agreements, GFI Caminus will
provide maintenance support assistance to SS&C only.
6) For each Sales Agent appointed, SS&C will provide GFI
Caminus with the following information: name, address,
contact name(s), telephone number(s), description of
business (including list of any competitive software
products represented), scope of responsibility (i.e.,
marketing, support, distribution, translation, etc.),
territory, date of license and license term.
7) Sales Agents are marketing agents and shall not license,
sublicense, copy or distribute SS&C Products or Category
Three Products to Customers or other third parties, and
Sales Agents shall not have custody or control over any
Keys.
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8) In the event that SS&C engages a Contractor or Sales Agent,
the parties agree that SS&C is not assigning this Agreement
or any of its rights or duties hereunder; and that SS&C
remains bound by each and every term hereof. Nothing
contained herein shall in any way constitute a waiver by
GFI Caminus of any of its rights, or the release of SS&C
from any of its obligations, under this Agreement. SS&C
shall have no liability to any Contractors or Sales Agents
not engaged by it. SS&C shall provide written notice to GFI
Caminus of any claim, dispute or legal action arising under
the arrangement between SS&C and its Contractors or Sales
Agents within ten (10) days from the date on which SS&C
becomes aware of such claim, dispute or action. GFI Caminus
shall have complete control over legal proceedings
involving its confidential information, copyright, patent
or other intellectual or industrial property rights.
9. Warranties and Indemnity by SS&C.
a) SS&C represents and warrants that it has the full right and power
to enter in this Agreement, and that any Category Three Product
modifications, enhancements, Error corrections and other software
or materials created by or on behalf of SS&C do not and will not
infringe on any patent, copyright, trade secret, trademark, moral
right or other intellectual or industrial property right of any
person.
b) SS&C will defend, indemnify and hold GFI Caminus and its
subsidiaries, affiliates, agents, distributors, assigns,
predecessors, stockholders, directors and employees harmless from
and against any and all claims, suits, actions, or losses,
including legal expenses, arising out of:
1) Any failure of SS&C to license or provide the Category
Three Products to any entity without obtaining a License
Agreement; or
2) Any failure of SS&C to license the Category Three Products
only under the terms of the License Agreement, or the
agreement by SS&C to any term or condition which has the
effect of limiting or eliminating the effect of any
provision in the License Agreement; or
3) The appointment by SS&C of Contractors or Sales Agents, the
failure of SS&C to engage a Contractor or Sales Agent under
the same terms and conditions as contained in this
Agreement, or arising out of any actions taken by such
Contractors or Sales Agents in their capacity as SS&C's
agents or otherwise; or
4) The acts or omissions of SS&C or its officers, agents, or
employees that are claimed to be unlawful; or
5) Any breach of SS&C's representations or warranties in
Section 9(a) above, or any claim that GFI Caminus's or
SS&C's use of any material created by SS&C constitutes an
infringement of any trademark, copyright,
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patent or moral right, or a misappropriation of a trade
secret, or a breach of contract; or
6) Any representations or warranties made by SS&C to Customers
or potential Customers or other persons concerning the
Category Three Products on behalf of GFI Caminus, or that
may be binding on GFI Caminus except consistent with the
sales activities contemplated by this Agreement; or
7) Any other claim, suit, or proceeding to the extent that it
alleges any negligent or wrongful act or omission of the
SS&C or its officers, agents, or employees.
10. Warranties and Indemnity by GFI Caminus.
a) GFI Caminus represents and warrants that it has the full right and
power to enter in this Agreement, and that any SS&C Product
modifications, enhancements, Error corrections and other software
or materials created by or on behalf of GFI Caminus do not and
will not infringe on any patent, copyright, trade secret,
trademark, moral right or other intellectual or industrial
property right of any person.
b) GFI Caminus will defend, indemnify and hold SS&C and its
subsidiaries, affiliates, agents, distributors, assigns,
predecessors, stockholders, directors and employees harmless from
and against any and all claims, suits, actions, or losses,
including legal expenses, arising out of:
1) The acts or omissions of GFI Caminus or its officers,
agents, or employees that are claimed to be unlawful; or
2) Any breach of GFI Caminus's representations or warranties
in Section 10(a) above, or any claim that SS&C's or GFI
Caminus's use of any material created by GFI Caminus
constitutes an infringement of any trademark, copyright,
patent or moral right, or a misappropriation of a trade
secret, or a breach of contract; or
3) Any other claim, suit, or proceeding to the extent that it
alleges any negligent or wrongful act or omission of the
GFI Caminus or its officers, agents, or employees.
c) GFI Caminus warrants that, for the first three (3) months after
the date on which GFI Caminus ships Category Three Products to
SS&C, the Products will function substantially in accordance with
their specifications contained in the applicable On-Line Help Text
(not defined herein). In case of breach of this warranty or any
other duty related to the quality of the Products, GFI Caminus's
sole responsibility will be to use its reasonable efforts to
correct material errors in the program coding, and obtaining such
efforts will be SS&C's exclusive remedy against GFI Caminus.
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15
d) The warranty specified in Section 10(c) will not apply to a
Product if its correction is required due to (i) natural disaster
or electric power failure, (ii) the failure to maintain
appropriate environmental conditions, (iii) the neglect, misuse,
or other cause other than the ordinary use of the Product, (iv)
the improper installation of the Product, (v) a modification of
the Product (including modifications made by SS&C), (vi) the
failure to install any update or revision promptly, or (vii) any
other cause not inherent in the Product.
e) GFI Caminus shall defend, indemnify and hold SS&C and its
subsidiaries, affiliates, agents, distributors, assigns,
predecessors, stockholders, directors and employees harmless from
and against any suit or proceeding brought against SS&C so far as
it is based on a claim that the use, execution, or licensing of
the Category Three Products or the use or copying of any GFI
Caminus Material furnished, as such and not in combination with
any other article or process, constitutes an infringement of any
patent, copyright, trade secret, trademark, moral right or other
intellectual or industrial property right of any person, if
notified thirty (30) calendar days after its commencement and
given full and complete authority, information, and assistance for
its defense, and GFI Caminus shall pay all damages and costs
awarded against SS&C, but shall not be responsible for any
compromise made without its consent. If claimed or held to
constitute such infringement, GFI Caminus shall, at its option and
expense, either procure for SS&C the right to continue using the
Category Three Product and GFI Caminus Material; modify the
Category Three Product so that, while it retains its functional
equivalence, it is no longer infringing; or terminate this
Agreement solely with respect to the distribution of the
infringing product.
11. Liabilities.
a) EXCEPT AS PROVIDED IN SECTIONS 9 AND 10, ALL WARRANTIES,
CONDITIONS, REPRESENTATIONS, INDEMNITIES, OR GUARANTEES, WHETHER
EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN
STATEMENTS, OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR
OF ERROR-FREE AND UNINTERRUPTED USE OR AGAINST INFRINGEMENT) ARE
HEREBY OVERRIDDEN, EXCLUDED, AND DISCLAIMED.
b) EXCEPT FOR DAMAGES ARISING UNDER SECTIONS 6, 7, 9 OR 10, UNDER NO
CIRCUMSTANCES WILL SS&C OR GFI CAMINUS OR ANY OF THEIR RESPECTIVE
RELATED COMPANIES BE LIABLE TO THE OTHER PARTY FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, OR INCIDENTAL DAMAGES, WHETHER
FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF SS&C, GFI
CAMINUS, LICENSEES, OR CUSTOMERS (INCLUDING, BUT NOT LIMITED TO,
CLAIMS FOR LOSS OF DATA, GOODWILL, PROFIT, USE OF MONEY OR USE OF
THE PROGRAMS, INTERRUPTION IN USE OR AVAILABILITY OR DATA OR THE
PROGRAMS, STOPPAGE OF OTHER WORK OR
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IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OF EXPRESS OR
IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION,
NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, WHETHER BASED
ON THIS AGREEMENT, ANY COMMITMENT PERFORMED OR UNDERTAKEN UNDER OR
IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE, EXCEPT ONLY IN THE
CASE OF PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE
LAW REQUIRES SUCH LIABILITY.
c) EXCEPT FOR DAMAGES ARISING UNDER SECTIONS 6, 7, 9 OR 10, UNDER NO
CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
DAMAGES IN EXCESS OF ONE MILLION DOLLARS ($1,000,000.00).
12. Miscellaneous.
a) Assignment. Each party acknowledges that the other party is
entering into this Agreement in reliance upon the personal
reputation, qualifications, and abilities of the other party; and
accordingly, neither party may assign this Agreement or any of its
rights and obligations under this Agreement without the prior
written consent of the other party, which consent shall not be
unreasonably withheld; (provided, however, that either party may
assign its rights and obligations hereunder, without the consent
of the other party, in connection with a sale of all or
substantially all of its assets or a controlling interest in its
ownership to another person or entity).
b) Applicable Law. This Agreement shall be governed by, subject to,
and interpreted in accordance with the laws of the State of
Delaware of the United States of America without giving effect to
conflict of law principles thereof.
c) Partial Invalidity. Whenever possible each provision of this
Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but in the event that any
provision herein is held to be invalid or unenforceable under any
circumstances, (i) such holding shall not affect the validity or
enforceability of such provision under other circumstances, of any
other provision herein, or of this Agreement as a whole, and (ii)
GFI Caminus and SS&C shall in good faith amend this Agreement to
reflect as near as may be the spirit and intention of such invalid
and unenforceable provision so that the same shall comply with the
applicable law.
d) Modification. No modifications or amendments to this Agreement
shall be binding upon the parties unless in writing signed by both
parties.
e) Waiver. A failure or delay of either party to enforce its rights
hereunder shall in no way be construed to be a waiver of such
rights or any other rights hereunder.
f) Notices. All "notices" under this Agreement shall be in writing,
and may be given by personal delivery, or by registered or
certified mail, postage prepaid, return
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17
receipt requested (or by other courier that provides written proof
of delivery), or facsimile or other telecommunications which
provides written proof of delivery to the parties at their
respective addresses set forth on Page 1 of this Agreement, or to
any other address either party from time to time designates to the
other by such notice. Such notices shall be deemed given when
delivered personally, or on the same business day as when
delivered via courier with proof of delivery, or seven (7) days
from when mailed if sent via registered or certified mail, or on
the next business day if transmitted via facsimile.
g) Headings. The headings used in this Agreement are for convenience
of reference only and are not to be used for interpreting it.
h) Complete Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes all previous
agreements, promises, proposals, negotiations, and understandings
between the parties respecting its subject matter hereof,
including, but not limited to, any Licensing Agreement, letter
agreement or other agreement previously executed between the
parties.
i) USA Control. Each party believes that the Materials it has
furnished or will furnish to the other constitute "technical data"
for purposes of export control regulations of the United States of
America. Accordingly each party agrees that neither the Materials
themselves, nor any copies or direct products of them (as defined
in such regulations), may be exported or otherwise transferred to
any country in violation of the laws of the United States of
America unless specifically authorized by the United States
Department of Commerce, and authorized in writing by each party
hereto.
j) Independent Contractors. The parties are, and shall remain,
independent contractors. Except as provided herein, each party is
not, and will not act as, an agent of the other party, nor shall
either party or any of its employees be deemed to be employees of
the other party.
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IN WITNESS WHEREOF, the parties hereto cause this Agreement to be
executed by their duly authorized representatives.
SS&C TECHNOLOGIES, INC. GFI CAMINUS LLC
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxx
------------------------------ -----------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxx Xxxxxx
---------------------------- ---------------------------------
Title: Chief Executive Officer Title: Chairman
--------------------------- --------------------------------
Date: Date:
---------------------------- ---------------------------------
SCHEDULE & EXHIBITS
Schedule 1 Products, Standard Prices, Standard Discount
Exhibit A: License Agreement [To be provided]
Exhibit B: Order Form [To be provided]
Exhibit C: Customer Non-Disclosure Agreement [To be provided]
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SCHEDULE 1:
A. PRODUCTS
Products include the base product and any modules marketed as part of the
product line.
Category Three Products consist of the following:
[To be provided]
B. STANDARD PRICES
[To be provided]
C. STANDARD DISCOUNT
[To be provided]
