1
Exhibit 10.19
Confidential portions of this Exhibit have been omitted and are identified by
square brackets ([ ]) and three asterisks (***). Such material has been
separately filed with the Securities and Exchange Commission pursuant to a
request for confidential treatment.
MASTER SOFTWARE LICENSE AGREEMENT
BETWEEN
ELECTRONIC DATA SYSTEMS CORPORATION
AND
SERVICEWARE TECHNOLOGIES, INC.
JUNE 30, 2000
2
TABLE OF CONTENTS
FOR
MASTER SOFTWARE LICENSE AGREEMENT
ARTICLE 1. AGREEMENT, TERM, AND DEFINITIONS.......................................1
1.01 AGREEMENT AND TERM.____________________________________________________1
1.02 CERTAIN DEFINITIONS.___________________________________________________1
ARTICLE 2. PURCHASE ORDERS........................................................2
2.01 ISSUANCE AND ACCEPTANCE OF PURCHASE ORDERS.____________________________2
2.02 EVALUATION PURCHASE ORDERS.____________________________________________3
2.03 CANCELLATION OF PURCHASE ORDERS._______________________________________3
ARTICLE 3. PROVISION OF LICENSED SOFTWARE AND SERVICES............................3
3.01 GENERAL._______________________________________________________________3
3.02 TRANSPORTATION OF LICENSED SOFTWARE.___________________________________3
3.03 RISK OF LOSS.__________________________________________________________4
3.04 INSTALLATION OF LICENSED SOFTWARE._____________________________________4
3.05 RIGHT TO CANCEL FOR DELAYS.____________________________________________4
3.06 SERVICES IN GENERAL.___________________________________________________4
3.07 TIME AND MATERIALS SERVICES.___________________________________________5
3.08 USE OF EXISTING MATERIALS._____________________________________________6
3.09 FURTHER ACTS.__________________________________________________________6
3.10 EDS BUSINESS PRACTICES.________________________________________________6
3.11 TIME OF PERFORMANCE____________________________________________________6
3.12 EDUCATION SERVICES.____________________________________________________6
ARTICLE 4. PROVISION OF LICENSED SOFTWARE.........................................6
4.01 ACCEPTANCE OF LICENSED SOFTWARE._______________________________________6
4.02 GRANT OF LICENSE.______________________________________________________7
4.03 TRANSFER OF LICENSED SOFTWARE._________________________________________7
4.04 OWNERSHIP OF LICENSED SOFTWARE AND MODIFICATIONS.______________________7
4.05 PROPRIETARY MARKINGS.__________________________________________________8
4.06 DUPLICATION OF DOCUMENTATION.__________________________________________8
4.07 PROTECTION OF LICENSED SOFTWARE._______________________________________8
4.08 LICENSED SOFTWARE SUPPORT AND MAINTENANCE SERVICES.____________________8
4.09 LICENSED SOFTWARE SUPPORT AND MAINTENANCE SERVICES OPTIONS.____________9
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4.10 PROVISION OF SOURCE CODE._____________________________________________10
4.11 ACQUISITION OF THIRD PARTY SOFTWARE.__________________________________10
4.12 [INTENTIONALLY LEFT BLANK]____________________________________________10
4.13 RESALE OF PRODUCTS BY EDS.____________________________________________11
4.14 DIVESTITURE OF BUSINESS.______________________________________________11
ARTICLE 5. WARRANTIES, INDEMNITIES, AND LIABILITIES..............................12
5.01 WARRANTY._____________________________________________________________12
5.02 PROPRIETARY RIGHTS INDEMNIFICATION.___________________________________13
5.03 CROSS INDEMNIFICATION.________________________________________________13
5.04 LIMITATION OF LIABILITY.______________________________________________13
5.05 INSURANCE.____________________________________________________________14
5.06 SURVIVAL OF ARTICLE.__________________________________________________14
ARTICLE 6. PAYMENTS TO SUPPLIER..................................................14
6.01 CHARGES, PRICES, AND FEES FOR LICENSED SOFTWARE AND SERVICES._________14
6.02 MODIFICATIONS TO CHARGES._____________________________________________15
6.03 AUTO PAYMENT._________________________________________________________15
6.04 PAYMENT THROUGH INVOICING.____________________________________________16
6.05 TAXES.________________________________________________________________16
ARTICLE 7. TERMINATION...........................................................17
7.01 TERMINATION FOR CAUSE.________________________________________________17
7.02 TERMINATION FOR INSOLVENCY OR BANKRUPTCY._____________________________17
7.03 TERMINATION FOR NON-PAYMENT.__________________________________________17
7.04 TERMINATION OF SOFTWARE LICENSE.______________________________________18
7.05 RIGHTS UPON TERMINATION.______________________________________________18
7.06 RETURN OF MATERIALS.__________________________________________________18
ARTICLE 8. MISCELLANEOUS.........................................................18
8.01 BINDING NATURE, ASSIGNMENT, AND SUBCONTRACTING._______________________18
8.02 AUTHORITY TO CONTRACT.________________________________________________18
8.03 COUNTERPARTS._________________________________________________________19
8.04 HEADINGS._____________________________________________________________19
8.05 AUTHORIZED AGENCY.____________________________________________________19
8.06 RELATIONSHIP OF PARTIES.______________________________________________19
8.07 CONFIDENTIALITY.______________________________________________________19
8.08 MEDIA RELEASES._______________________________________________________20
8.09 DISPUTE RESOLUTION.___________________________________________________20
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8.10 PROPOSALS AND SPECIAL PROJECTS._______________________________________20
8.11 GOVERNMENTAL CUSTOMERS._______________________________________________20
8.12 INTERNATIONAL BUSINESS._______________________________________________21
8.13 COMPLIANCE WITH LAWS._________________________________________________21
8.14 EXPORT._______________________________________________________________21
8.15 NOTICES.______________________________________________________________21
8.16 FORCE MAJEURE.________________________________________________________22
8.17 SEVERABILITY._________________________________________________________22
8.18 WAIVER._______________________________________________________________22
8.19 REMEDIES._____________________________________________________________22
8.20 SURVIVAL OF TERMS.____________________________________________________22
8.21 NONEXCLUSIVE MARKET AND PURCHASE RIGHTS.______________________________22
8.22 GOVERNING LAW.________________________________________________________23
8.23 ENTIRE AGREEMENT._____________________________________________________23
LIST OF EXHIBITS
EXHIBIT A:
EDS BUSINESS PRACTICES
EXHIBIT B:
CHARGES, PRICES, AND FEES
EXHIBIT C:
THIRD PARTY SYSTEM ACCESS AGREEMENT
EXHIBIT D:
INTENTIONALLY LEFT BLANK
EXHIBIT E:
EDUCATION SERVICES
EXHIBIT F:
DIRECT COMPETITORS
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MASTER SOFTWARE LICENSE AGREEMENT
THIS MASTER SOFTWARE LICENSE AGREEMENT (the "Agreement"), dated June
29, 2000 (the "Effective Date"), is between SERVICEWARE TECHNOLOGIES, INC., a
Delaware corporation ("Supplier"), and ELECTRONIC DATA SYSTEMS CORPORATION, a
Delaware corporation ("EDS").
W I T N E S S E T H:
WHEREAS, EDS desires to have the right to license computer software
programs and to obtain services from Supplier from time to time; and
WHEREAS, Supplier is willing to provide computer software programs and
services to EDS in accordance with the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the premises, and other good and
valuable consideration received and to be received, the receipt and sufficiency
of which are hereby acknowledged, Supplier and EDS agree as follows:
ARTICLE 1. AGREEMENT, TERM, AND DEFINITIONS
1.01 AGREEMENT AND TERM.
The parties agree that the terms and conditions of this Agreement apply to
the provision of products and services to EDS by Supplier and Supplier
agrees that products and services which Supplier generally makes available
to other customers shall be made available to EDS under the terms and
conditions of this Agreement. The initial term of this Agreement shall be
five (5) years commencing on the Effective Date. The Agreement shall
automatically renew for successive two (2) year renewal terms thereafter
unless either party provides the other party written notice of its intent
not to renew not less than sixty (60) days prior to the expiration of the
initial or any renewal term.
1.02 CERTAIN DEFINITIONS.
The following definitions apply to this Agreement:
(a) "Affiliate" means any entity controlling, controlled by or under
common control with EDS. For purposes of this Agreement, control
means operational control in which the controlling entity has
either (i) at least fifty percent (50%) of the equity interest, or
(ii) the maximum percentage of the equity interest allowed by
local law, based on the entity's location or state of
incorporation, as applicable, whichever is less.
(b) "Applicable Specifications" means the functional, performance,
operational, compatibility, and other specifications or
characteristics of a Product described in applicable Documentation
and such other specifications or characteristics of a Product
agreed upon in writing by the parties.
(c) "Direct Competitor" shall mean the direct competitors of Supplier.
The current list of Direct Competitors is attached hereto as
Exhibit F, and shall include such companies' successors and
assigns. Supplier reserves the right to add additional companies
to Exhibit F as it determines in good faith to be its direct
competitor(s).
(d) "Documentation" means user guides, operating manuals, education
materials, product descriptions and specifications and technical
manuals relating to the Products or used in conjunction with the
Services, whether distributed in print, magnetic, electronic, or
video format, in effect as of the date (i) a Product is shipped to
or is accepted by EDS, as applicable, or (ii) the Service is
provided to EDS.
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(e) "Employee" means those employees, agents, subcontractors,
consultants, and representatives of Supplier provided or to be
provided by Supplier to perform Services pursuant to this
Agreement.
(f) "Existing Materials" means any confidential or proprietary
materials which (i) belong to third parties, (ii) Supplier has a
pre-existing intellectual property interest, or (iii) are
developed outside of its performance of this Agreement without
reference to the other parties intellectual property or
confidential information.
(g) "Licensed Software" means computer programs in object code
(including micro code), provided or to be provided by Supplier
pursuant to this Agreement as set forth on Exhibit B. The
definition of Licensed Software also includes any enhancements,
translations, modifications, updates, releases, or other changes
to Licensed Software which are provided or to be provided as part
of Supplier's performance of warranty Service obligations or
pre-paid support and maintenance Services pursuant to this
Agreement.
(h) "Outsourcer" means a company that uses the Product to provide
services for another company for products other than those sold to
that other company by the Outsourcer, in exchange for fees or
other compensation.
(i) "Products" means, individually or collectively as appropriate,
Licensed Software, Documentation, and Work Products (as later
defined in this Agreement), provided or to be provided by Supplier
pursuant to this Agreement.
(j) "Services" includes, but is not limited to, installation,
education, acceptance testing, support, maintenance, development,
consulting, warranty, and time and materials services, provided or
to be provided by Supplier pursuant to this Agreement.
(k) "Site" means geographically contiguous buildings, each of which,
in whole or in part, is occupied or accessed by EDS or a customer
of EDS. "Geographically contiguous" means adjacent tracts or
parcels of real property separated, if at all, only by publicly
dedicated rights of way or private easements.
(l) "Work Product" means (in any form including source code) any and
all ideas, processes, methods, programming aids, formulas,
manufacturing techniques, mask works, reports, programs, manuals,
tapes, card decks, listings, software, developed products,
flowcharts and systems and any improvements, enhancements, or
modifications to any of the foregoing, which are developed,
prepared, conceived, made, or suggested by any Employee or by
Supplier as part of the performance of Services (except in
connection with Supplier's performance of warranty Service
obligations or pre-paid support Services) pursuant to this
Agreement, except Existing Material.
ARTICLE 2. PURCHASE ORDERS
2.01 ISSUANCE AND ACCEPTANCE OF PURCHASE ORDERS.
EDS and Supplier agree that, except for resale of the Licensed
Software, EDS will be ordering the Licensed Software for use by EDS on
a project by project basis (each a "Project"). EDS will issue to
Supplier written purchase orders identifying the Products and Services
EDS desires to obtain from Supplier. Each such Purchase Order shall
indicate the Product being ordered, the license being purchased, and
the Project for which the Product will be used. Such purchase orders
shall be consistent with the terms and conditions of this Agreement.
Supplier shall accept purchase orders or alterations thereto which do
not establish new or conflicting terms and conditions from those set
forth in this Agreement. Supplier shall also accept purchase orders
incorporating terms and conditions which have been separately agreed
upon in writing by
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the parties, such as special pricing offers. Supplier shall promptly
accept a purchase order by providing to EDS a written or a verbal
acceptance of such purchase order, or by commencing performance
pursuant to such purchase order. EDS' Purchase Orders submitted to
Supplier from time to time with respect to Supplier Products to be
purchased hereunder shall be governed by the terms of this Agreement.
Nothing contained in any such Purchase Order shall in any way modify
such terms of purchase or add any additional terms or conditions except
otherwise agreed in writing by the Parties. Neither Supplier's
commencement of performance nor its delivery of any Supplier Products
that are the subject of any purchase order shall be deemed or construed
to constitute acceptance of any additional or inconsistent terms or
conditions contained in any purchase order.
Purchase orders or alterations thereto accepted in accordance with this
Section are referred to as "Purchase Orders." EDS shall have no
responsibility or liability for Products or Services provided without a
Purchase Order.
2.02 EVALUATION PURCHASE ORDERS.
EDS may issue a Purchase Order to Supplier for Licensed Software
evaluation by EDS at no charge for an evaluation period agreed upon by
the parties. EDS may use the evaluation copy solely for its own
internal evaluation and shall not copy, alter or otherwise distribute
such evaluation copy. Unless otherwise agreed in a Purchase Order, EDS
shall pay all related transportation and insurance costs. Such Licensed
Software shall be protected by EDS in accordance with the
non-disclosure requirements specified in this Agreement which are
applicable to Licensed Software. At the conclusion of the evaluation
period, EDS shall have the option to acquire such Licensed Software
pursuant to a purchase order issued pursuant to this Agreement or to
return such Licensed Software to Supplier at Supplier's expense without
obligation to Supplier.
2.03 CANCELLATION OF PURCHASE ORDERS.
Except asotherwise agreed upon by the parties, EDS may cancel all or a
portion of a Purchase Order relating to Product(s) or Services, without
charge or penalty up to five (5) calendar days prior to the scheduled
delivery date of the affected Product(s) or the scheduled performance
of Services, provided that EDS shall pay for Services already performed
prior to the effective date of such notice. In the event EDS cancels a
Purchase Order or any portion thereof for Product(s) within five (5)
calendar days of the scheduled delivery date, as Supplier's sole and
exclusive remedy and EDS' sole liability, EDS shall reimburse Supplier
the direct, verifiable, non-recoverable expenses incurred by Supplier
as a result of such cancellation.
ARTICLE 3. PROVISION OF LICENSED SOFTWARE AND SERVICES
3.01 GENERAL.
EDS is entitled to obtain Licensed Software and Services for the
benefit of and use by Affiliates of EDS. Such Affiliates and their
respective employees are entitled to use the Licensed Software and
Services in accordance with this Agreement and have and are entitled to
all rights, benefits, and protections granted to EDS pursuant to this
Agreement with respect to such Licensed Software and Services. However,
an Affiliate of EDS shall only be entitled to obtain Licensed Software
and Services directly from Supplier pursuant to this Agreement if EDS
so provides written notice to Supplier. EDS is responsible for
compliance by its Affiliates with the terms and conditions set forth in
this Agreement. EDS and its Affiliates have the right to transfer,
license or remarket the Licensed Software and Services to third parties
as set forth in this Agreement.
3.02 TRANSPORTATION OF LICENSED SOFTWARE.
Supplier shall deliver up to 100 copies per month of the Licensed
Software to EDS on the delivery date set forth in the applicable
Purchase Order or as otherwise agreed upon by the parties. In the event
that EDS orders more than 100 copies per month of the Licensed
Software, Supplier shall deliver such excess within the later of: (i)
three weeks of receipt of the applicable Purchase Orders, or (ii) the
delivery date requested
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in the applicable Purchase Order(s). Costs for transportation of
Licensed Software shall be paid by Supplier. The method and mode of all
transportation shall be those selected by Supplier.
3.03 RISK OF LOSS.
All risk of loss of, or damage to, Licensed Software shall be borne by
Supplier until receipt of delivery of such Licensed Software by EDS.
Supplier agrees to insure Licensed Software until receipt of delivery
of such Licensed Software by EDS. If loss to or damage of Licensed
Software occurs prior to receipt of delivery by EDS, Supplier shall
immediately provide a replacement item or, if Licensed Software is not
immediately replaceable, Supplier shall use commercially reasonable
effort to provide a replacement for the Licensed Software on a priority
basis.
3.04 INSTALLATION OF LICENSED SOFTWARE.
If installation is set forth in the governing Purchase Order or is
included in the Charge (as later defined) for Licensed Software,
Supplier shall install Licensed Software in good working order at the
designated location on or before the installation date set forth in the
applicable Purchase Order or as otherwise agreed upon by the parties.
Installation Services shall include performance of Supplier's usual and
customary diagnostic tests to determine the operational status of the
Licensed Software. Supplier shall inform EDS of any education Services
which are included with installation, and such education may be
performed at a time mutually agreed upon by Supplier and EDS.
3.05 RIGHT TO CANCEL FOR DELAYS.
In the event of a delay in delivery of all or any portion of Licensed
Software listed on a Purchase Order or Licensed Software listed on a
series of Purchase Orders which relate to a specific project or request
for proposal (the Licensed Software listed on such series of Purchase
Orders referred to as "Related Licensed Software"), or in the event of
a delay in the performance of Services which is not excused in this
Agreement, EDS may cancel without charge all or any portion of the
Licensed Software, Related Licensed Software or Services for which
delivery or performance has been so delayed. If, in EDS's reasonable
opinion, the delivered Licensed Software or Related Licensed Software
are not operable without the remaining undelivered Licensed Software or
Related Licensed Software, EDS may, at Supplier's expense, return any
delivered Licensed Software or Related Licensed Software to Supplier.
EDS shall not be liable for any expenses incurred by Supplier pursuant
to this Section 3.05 for canceled, undelivered, or returned Licensed
Software or Related Licensed Software. EDS shall receive a refund of
all amounts paid to Supplier with respect to the canceled and/or
returned Licensed Software, Related Licensed Software and Services.
3.06 SERVICES IN GENERAL.
In connection with the performance of any Services pursuant to this
Agreement:
(a) Supplier warrants that Employees shall have sufficient skill,
knowledge, and training to perform Services and shall perform such
Services in a professional and workmanlike manner. Further,
Supplier warrants that it will provide sufficient Employees to
complete the Services ordered within the applicable time frames
agreed to by Supplier and EDS.
(b) Supplier warrants that all Employees utilized by Supplier in
performing Services are under a written obligation to Supplier
requiring Employee: (i) to maintain the confidentiality of
information of Supplier's customers, and (ii) if such Employee is
not a full-time employee whose work is considered a "work for
hire" under Section 101 of the United States Copyright Code, to
assign all of Employee's right, title, and interest to Supplier in
and to any Work Product which is developed, prepared, conceived or
made by such Employee while providing Services on behalf of
Supplier to which the Employee does not have preexisting rights.
(c) Supplier shall provide for and pay the compensation of Employees
and shall pay all taxes, contributions, and benefits (such as, but
not limited to, workers' compensation benefits) which an
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employer is required to pay relating to the employment of employees.
EDS shall not be liable to Supplier or to any Employee for Supplier's
failure to perform its compensation, benefit, or tax obligations.
Supplier shall indemnify, defend and hold EDS harmless from and against
all such taxes, contributions and benefits and will comply with all
associated governmental regulations related thereto, including the
filing of all necessary reports and returns.
(d) Employees performing Services in the United States must be United
States citizens or lawfully admitted in the United States for
permanent residence or lawfully admitted in the United States
holding a visa authorizing the performance of Services on behalf
of Supplier.
(e) If EDS intends to provide an Employee performing Services in the
United States, Canada and/or Mexico with unescorted access to an
EDS location, Supplier shall allow EDS or its designated third
party to conduct a background investigation and drug screening
("Investigation") of such Employee. In connection with such
Investigation EDS shall provide to Supplier a standard form
authorizing the Investigation and Supplier shall promptly secure
the completion of such form by the Employee. Any and all
information obtained in connection with an Investigation of any
Employee or acquired or made known during such Investigation shall
be deemed confidential and shall not be revealed to persons
without a bona fide need to know. If, after reviewing the results
of an Investigation, EDS elects not to accept an Employee for
performance of Services under this Agreement, Supplier agrees to
not utilize such Employee in the performance of Services. EDS
shall waive the Investigation for an Employee if Supplier provides
EDS with written confirmation that: (i) Supplier has conducted a
background and drug screening investigation of such Employee with
satisfactory results, or (ii) the Employee has been employed with
Supplier for at least five (5) years in good standing.
3.07 TIME AND MATERIALS SERVICES.
If available from Supplier, EDS may obtain on a time and materials
basis from Supplier consulting, development and other Services
(excluding maintenance and support Services which are provided pursuant
to other sections of this Agreement) agreed upon by the parties in
accordance with the terms and conditions set forth below and in the
Section of this Agreement titled "Services in General".
(a) If EDS is dissatisfied with the performance of a Supplier
employee performing Services (excluding maintenance and
support Services which are provided pursuant to other sections
of this Agreement) pursuant to this Agreement, EDS may request
a change in the employee performing such services and will
document the request via an agreed upon change request
process.
(b) EDS shall reimburse Supplier for reasonable expenses incurred
by Employees in the performance of Services (if requested by
Supplier in advance and approved by EDS) which are related to
travel, lodging, and meals; such expenses shall be reimbursed
in accordance with EDS' guidelines for its own employees.
(c) Supplier shall require Employees performing Services at an EDS
location to comply with applicable EDS security and safety
regulations and policies.
(d) Supplier shall establish and shall retain, for a period of
three (3) years following the performance of time and
materials Services, records which adequately substantiate the
applicability and accuracy of Charges for such Services and
related expenses to EDS. Upon receipt of reasonable advance
notice from EDS, Supplier shall produce such records for audit
by EDS.
(e) The parties agree that the ownership of any Work Product
created by or on behalf of Supplier in its performance of time
and material Service shall be negotiated in good faith by the
parties and
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documented in a separate agreement supplemental to this Agreement. Such
separate agreement shall be signed prior to the commencement of
Services. In the event an agreement is not signed and Supplier
commences performance of Services, then the parties agree that EDS
shall own any Work Product created by or on behalf of Supplier in the
performance of such Services.
3.08 USE OF EXISTING MATERIALS.
To the extent that Work Product(s) under development may incorporate or
require the use of Existing Materials, or to the extent Supplier
intends, in its performance of Services, to utilize any such Existing
Materials (except as such are utilized by Supplier in the performance
of warranty Service obligations or pre-paid support Services), Supplier
shall: (i) notify EDS of such intent prior to commencement of
performance of Services; and (ii) identify to EDS the ownership of such
Existing Materials. EDS may require that Supplier perform Services
without the use of such Existing Materials. If any such Existing
Material is owned by a third party and/or is used in the performance of
Services, Supplier warrants that it has acquired all licenses and
authorizations necessary to utilize the Existing Material in the manner
and for the purpose intended by Supplier in its actual use of such
Existing Material in the performance of Services. To the extent that
Existing Materials are incorporated in Work Products, Supplier grants
to EDS and its affiliates a royalty-free, irrevocable, worldwide,
non-exclusive, perpetual right to use, modify and prepare derivative
works of such Existing Materials and to use and display such Existing
Materials, with full rights to authorize others to do the same but only
to the extent required to utilize the Work Product in accordance with
the Ownership Rights granted in this Agreement.
3.09 FURTHER ACTS.
During and subsequent to the term of this Agreement, Supplier shall do,
or cause to be done, all such further acts and shall execute,
acknowledge, and deliver, or cause to be executed, acknowledged, and
delivered, any and all further documentation or assignments as EDS may
reasonably require to evidence EDS' right to use the Products.
3.10 EDS BUSINESS PRACTICES.
Supplier shall comply with the EDS Business Practices set forth in
Exhibit A.
3.11 TIME OF PERFORMANCE
Time is expressly made of the essence with respect to each and every
term and provision of this Article.
3.12 EDUCATION SERVICES.
Education Services (as later defined) provided or to be provided by
Supplier pursuant to this Agreement shall also be subject to the terms
and conditions set forth in Exhibit E.
ARTICLE 4. PROVISION OF LICENSED SOFTWARE
4.01 ACCEPTANCE OF LICENSED SOFTWARE.
Upon the initial delivery of a portion (as set forth in Exhibit B) of
the Licensed Software for a Project, EDS may, at its option, perform
acceptance tests thereon to determine whether such items materially
conform to the Applicable Specifications for such Project. EDS shall be
deemed to have accepted such items for such Project upon the successful
completion of such acceptance tests or thirty (30) days after delivery,
whichever is sooner, absent delivery of notice to Supplier of rejection
of the items within such thirty (30) days. Such notice shall provide a
detailed description of the Licensed Software's non-conformance with
the Applicable Specifications. If EDS notifies Supplier within such
thirty (30) days that the item does not conform to the Applicable
Specifications, Supplier shall repair or replace such item within
forty-five (45) days of its receipt of a notice of non-conformance.
Acceptance of Licensed Software does not waive any warranty rights
provided in this Agreement for the Licensed Software.
If Supplier determines that there was a material failure of the
Licensed Software to perform according to the Applicable Specifications
that was attributable to a defect in the Licensed Software and if
Supplier cannot correct the failure within forty-five (45) days (or
such longer period as agreed to by Supplier and
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EDS, which agreement shall not be unreasonably withheld, under the
circumstances) after receipt of EDS' notice of nonacceptance, then EDS
shall promptly return to Supplier all copies of the Licensed Software
and Documentation and any other items delivered to EDS by Supplier for
such Project, and Supplier shall then refund to EDS the initial license
fee paid by EDS for the Licensed Software for such Project.
Notwithstanding any of the provisions of Section 4.01, EDS shall be
deemed to have accepted the Licensed Software for a Project if EDS uses
the Licensed Software in production. The first date on which EDS is
deemed to have accepted the Licensed Software for a Project under this
Section 4.01 is referred to as the "Acceptance Date."
Subsequent shipments of the same portion of the Licensed Software for a
particular Project shall not be subject to this Section 4.01.
Licensed Software purchased for resell as set forth in this Agreement
shall not be subject to this Section 4.01 but shall be subject to
acceptance or similar provisions as set forth in Supplier's then
standard pass-through provisions that Supplier makes generally
available to its resellers.
4.02 GRANT OF LICENSE.
During the term of this Agreement, Supplier grants EDS and EDS accepts
the following licenses in accordance with the terms and conditions of
this Agreement. A Purchase Order shall designate the type of license
which is selected. Each portion of the Licensed Software is listed in
Exhibit B and may be used according to the licenses set forth therein
for which EDS purchases a license hereunder. All licenses in Exhibit B
are worldwide, nonexclusive licenses and allow for the use of the
Products for internal use or to provide services as an Outsourcer.
EDS is also hereby granted the nonexclusive, worldwide right to resell
the licenses set forth in Exhibit B, exclusive of the licenses for the
Web Service Delivery Portal Project (as defined in Exhibit B), pursuant
to the terms and conditions of this Agreement, provided however, that
EDS may not resell the product to any Direct Competitor of Supplier.
Regardless of the license granted above, neither EDS nor its customers
may alter, modify, decompile or reverse engineer the Licensed Software.
Neither EDS nor its customers may make copies of the Licensed Software
or Products except to make a reasonable number of archival copies for
back-up purposes, or as expressly permitted in this Agreement.
4.03 TRANSFER OF LICENSED SOFTWARE.
During the performance or upon termination of a contract between EDS
and an EDS customer to which EDS is supplying outsourcing services and
which is not a Direct Competitor of Supplier or another outsourcer
(such customer referred to as "Transferee"), (i) EDS may sublicense or
assign the applicable Licensed Software to such Transferee to use the
Licensed Software solely for their own internal purposes and subject to
the terms and conditions of the Agreement applicable to such use,
provided such Transferee agrees in writing to be bound by such, or (ii)
if requested by EDS, the Licensed Software may be licensed directly by
Supplier to Transferee in accordance with the terms and conditions of
Supplier's standard software license agreement or as agreed upon by
Supplier and Transferee. EDS shall pay to Supplier a one time fee of
[***]% of the initial license fee paid for a particular customer to
transfer or license the product to such customer as set forth in clause
(i) of this Section 4.03.
4.04 OWNERSHIP OF LICENSED SOFTWARE AND MODIFICATIONS.
The Licensed Software shall be and remain the property of Supplier or
third parties which have granted Supplier the right to license the
Licensed Software and EDS shall have no rights or interests therein
except
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as set forth in this Agreement. EDS shall be entitled to modify the
Licensed Software and to develop software derivative of or interfacing
with the Licensed Software. All modifications of and software
derivative of the Licensed Software developed by EDS ("EDS
Modifications") shall be and remain the property of EDS, and Supplier
and its Employees shall have no rights or interests therein. Except in
connection with Supplier's performance of warranty Service obligations
or pre-paid support Services, all modifications of and software
derivative of the Licensed Software developed at EDS' expense by
Supplier and its Employees shall be considered Work Product and EDS
shall have rights in such Work Product as established in the Section
titled "Ownership of Intellectual Property Rights" elsewhere in this
Agreement.
Supplier shall not be prohibited from independently developing and
implementing any similar functions or capabilities to the functions or
capabilities provided in the EDS Modifications or Work Product,
provided that Supplier independently develops such functions or
capabilities without use of the EDS Modifications or Work Product.
4.05 PROPRIETARY MARKINGS.
EDS shall not remove or destroy any proprietary markings or proprietary
legends placed upon or contained within the Products.
4.06 DUPLICATION OF DOCUMENTATION.
Subject to the other terms of this Agreement, EDS may duplicate
Licensed Software Documentation, at no additional charge, for EDS' use,
or for use by a customer of EDS, in connection with the provision of
Licensed Software so long as all required proprietary markings are
retained on all duplicated copies.
4.07 PROTECTION OF LICENSED SOFTWARE.
During the term of a license, EDS will treat the Licensed Software and
Documentation with the same degree of care and confidentiality which
EDS provides for similar information belonging to EDS which EDS does
not wish disclosed to the public, but not less than reasonable care.
This provision shall not apply to Licensed Software and Documentation,
or any portion thereof, which is (i) as shown by the written records of
EDS, already known by EDS without an obligation of confidentiality,
(ii) publicly known or becomes publicly known through no unauthorized
act of EDS, (iii) rightfully received from a third party without
obligation of confidentiality, or (iv) approved in writing by Supplier
for disclosure. EDS may disclose that portion of the Licensed Software
as required to be disclosed pursuant to a requirement of a governmental
agency or law so long as EDS provides Supplier with timely prior
written notice of such requirement and it reasonably cooperates, at
Supplier's expense, in obtaining a protective order or similar
treatment. It will not be a violation of this Section if (A) EDS
provides access to and the use of the Licensed Software or
Documentation to third parties, other than Direct Competitors of
Supplier, providing services to EDS so long as EDS secures execution by
such third parties of a confidentiality agreement as would normally be
required by EDS, which is no less protective of Supplier's rights than
this Agreement, or (B) EDS independently develops software which is
similar to Licensed Software, so long as such independent development
is substantiated by written documentation. EDS shall immediately
attempt to remedy any breach by the third party of its obligations
under the preceding clause (A), and cooperate with Supplier regarding
any such actions. In the event that Supplier, acting in good faith, is
not reasonably satisfied with the actions EDS has taken to remedy such
breach, upon Supplier's request, EDS hereby assigns and agrees to
assign its rights to enforce such confidentiality provisions in a court
of law or equity with respect to the Licensed Software against such
third party.
4.08 LICENSED SOFTWARE SUPPORT AND MAINTENANCE SERVICES.
The support and maintenance Services set forth below for the Licensed
Software shall be provided by Supplier to EDS during the Warranty
Period (as later defined) at no charge to EDS. Thereafter, during the
term of this Agreement, such Services shall be provided by Supplier,
upon EDS' request at the applicable Charges set forth in Exhibit B. EDS
may discontinue such Services at any time by providing thirty (30)
days' advance written notice to Supplier. EDS shall promptly receive a
prorated refund of prepaid Charges for maintenance and support Services
after such termination.
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(a) Supplier shall promptly notify EDS of any defects, errors or
malfunctions where the Licensed Software does not function
according to the Documentation ("Defects") in the Licensed
Software or Documentation and shall promptly provide to EDS
modified versions of Licensed Software or Documentation which
incorporate corrections of any Defects ("Corrections"). Supplier
shall also provide to EDS all operational and support assistance
necessary to cause Licensed Software to perform in accordance with
its Applicable Specifications and remedial support designed to
provide a by-pass or temporary fix to a Defect until the Defect
can be permanently corrected. Supplier shall use commercially
reasonable efforts to respond to requests from EDS for Licensed
Software support in a manner and time frame which are reasonably
responsive considering the nature and severity of the Defect which
gave rise to such request.
(b) Supplier shall provide to EDS all upgrades, modifications,
improvements, enhancements, extensions, updates, and other changes
to Licensed Software developed by Supplier ("Improvements") which
are generally made available to other customers of Supplier. EDS
shall have the option to so implement, provided, however, that
Supplier shall only be obligated to provide maintenance and
support Services for the then most current release and its two
previous releases. Supplier shall not be obligated to provide any
maintenance and support Services to EDS for any portion of the
Licensed Software for which Supplier does not make maintenance and
support generally available to its customers.
(c) Supplier shall promptly provide to EDS any revisions to the
existing Documentation to reflect all Corrections or Improvements.
(d) Supplier shall provide toll-free telephone hot-line support
between 8:00 a.m. and 5:00 p.m. at the applicable maintenance
location. In addition, Supplier shall provide to EDS, at the
request of EDS and at Charges as set forth in Exhibit B,
additional beeper support for up to twenty-four (24) hours per
day, seven (7) days per week. Supplier shall have no obligation to
provide support attributable to, malfunctions caused by a
malfunction of non-Supplier hardware or software, by modification
of the Licensed Software not made by Supplier, by any combination
of the Licensed Software with other software which has not been
approved by Supplier, by operator error, or by use of the Licensed
Software that is not in accordance with the operating instructions
for the Licensed Software.
(e) All maintenance and support to end-users to whom EDS resells
Subscription Licenses or any other licenses shall be provided
pursuant to the terms and conditions of Supplier's then standard
maintenance agreement. Such maintenance and support shall only
apply to the Licensed Software, and not any integration or
customization provided by EDS. In the event that an end-user
experiences problems which are determined in good faith by
Supplier to not be caused by a defect in the Licensed Software,
but due to the integration of the Licensed Software by EDS,
Supplier will transition such end-user to the EDS Business
Development Manager who will then scope the problem and provide a
bid to the end-user to resolve the issue on a time and materials
basis. EDS may choose to resell the initial maintenance and
support for a license to an end-user if it so chooses. In the
event that EDS does not choose to sell maintenance for a license,
it shall promptly provide notice thereof to Supplier. After the
initial sale of maintenance for a license to an end-user, all
renewals of maintenance with respect to such license shall be made
by Supplier.
4.09 LICENSED SOFTWARE SUPPORT AND MAINTENANCE SERVICES OPTIONS.
EDS may obtain support and maintenance Services for Licensed Software
on a central site support basis and/or on an individual site support
basis. In the absence of a designation of central or individual site
support in a Purchase Order, such support shall be deemed to be
individual site support. The Charges for each option shall be as set
forth in Exhibit B or as otherwise agreed upon by the parties. Where
"central site support" is requested, such Services shall be provided by
Supplier to and shall be requested by EDS
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through a single point of contact identified by EDS on a Purchase
Order. To the extent necessitated by geographic diversity or where
required in order to support multiple time zones, EDS may designate
multiple central site support locations. With respect to central site
support, Supplier shall provide to EDS one master disk and one copy of
all Documentation relating to each Correction or Improvement. EDS shall
be entitled to copy the disk and Documentation and distribute the
copies or electronically transmit the copied information to each
location supported by the central site. A designation of central site
support shall not prevent an individual user of Licensed Software from
contacting Supplier in the event of an emergency. Where "individual
site support" is requested, such Services shall be provided by Supplier
to the applicable licensed CPU, Site, or Network, or, in the case of a
Corporate Software License, to a licensed user.
4.10 PROVISION OF SOURCE CODE.
EDS' ability to adequately utilize the Licensed Software may be jeopardized
if Supplier fails to maintain or support such Licensed Software unless
complete Licensed Software source code and related Documentation can be
made available to EDS for EDS' use in satisfying EDS' maintenance and
support requirements. Therefore, Supplier agrees that if an "Event of
Default" occurs, then Supplier will provide to EDS one copy of the most
current version of the source code (including all Corrections and
Improvements) for the affected Licensed Software and associated
Documentation in accordance with the following:
(a) An Event of Default shall be deemed to have occurred if Supplier:
(i) ceases to market or make available maintenance or support
Services for the most current version of the Licensed Software
made generally available by Supplier during a period in which EDS
is entitled to receive or to purchase, or is receiving or
purchasing, such maintenance and support and Supplier has not
promptly cured such failure despite EDS' demand that Supplier make
available or perform such maintenance and support, (ii) ceases
business operations generally, or (iii) has transferred all or
substantially all of its assets or obligations set forth in this
Agreement to a third party which has not assumed all of the
obligations of Supplier set forth in this Agreement.
(b) The governing license for the Licensed Software includes the right
to use source code received under this Section as necessary to
modify and maintain the Licensed Software.
(c) Upon request by EDS, Supplier will add EDS as a third party
beneficiary to any existing escrow agreements Supplier may have or
will enter into good faith negotiations of an escrow agreement
with EDS and a third party escrow agent acceptable to both EDS and
Supplier. Supplier's entry into, or failure to enter into, an
agreement with an escrow agent or to deposit the described
materials in escrow shall not relieve Supplier of its obligations
to EDS described in this Section.
(d) In the event of a release of source code pursuant to this Section
4.10, such source code shall be considered Licensed Software
pursuant to this Agreement, provided, that EDS may not resell or
distribute the source code but may only use it solely to provide
maintenance for the Products and that Supplier shall not provide
any maintenance or support Services therefor.
4.11 ACQUISITION OF THIRD PARTY SOFTWARE.
If EDS has acquired software products from a third party and rights to
such software products are subsequently acquired by Supplier (whether
through purchase of the third party in whole or in part, through
purchase of the software products, through acquisition of the rights to
market the software, or through any other means), then EDS shall have
the option of (i) continuing to use the software products under the
original license agreement with such third party at no additional
charge to EDS other than applicable fees identified in such license
agreement, or (ii) using the software products under the terms and
conditions of this Agreement.
4.12 [INTENTIONALLY LEFT BLANK]
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4.13 RESALE OF PRODUCTS BY EDS.
During the term of this Agreement, EDS may promote and resell licenses
as set forth in Section 4.02(a) for the Products, in conjunction with
EDS providing systems integration, outsourcing, electronic business, or
facilities management services to a customer of EDS ("ITS Customer"),
in accordance with the following terms and conditions:
(a) Charges for Purchase Orders identified for resale shall be as set
forth in Exhibit B.
(b) For a Purchase Order not identified as subject to Auto Payment as
defined in Section 6.03, Supplier may invoice EDS for resale
products upon delivery and payment will be made in accordance with
the provisions of Section 6.04, Payment Through Invoicing.
(c) Supplier shall extend to ITS Customers the same warranties and
indemnifications, with respect to the Products resold by EDS
hereunder, as is set forth in Supplier's then standard terms and
conditions to its end users.
(d) The term of agreements, warranties and indemnities extended by
Supplier to an ITS Customer shall commence upon delivery of a
Product to an ITS Customer and the ITS Customer shall be governed
by the Supplier's then current End User Software License Agreement
from the delivery date to such ITS Customer.
(e) Supplier shall make available to ITS Customers all training,
technical support and other services related to the Products as
then are generally available made available by Supplier to its
other end user customers, for the fees and upon the terms and
conditions which are then made generally available by Supplier.
During the term that EDS is providing services to an ITS Customer,
EDS shall have authorized access to Licensed Software acquired
under this Section 4.13, in accordance with the provisions of
Exhibit C, titled "Third Party System Access Agreement."
(f) EDS shall represent the Products accurately and fairly and shall
avoid any misleading or unethical business practices. EDS shall
not (i) make warranties of functionality or performance on the
Products except as specifically set forth in the Documentation or
(ii) alter, re-label or change the Products or Documentation
without the prior written approval of Supplier.
(g) EDS shall resell each Product pursuant to Supplier's then standard
pass-through provisions as Supplier makes generally available to
its resellers. EDS may not alter the terms of the pass-through
without the prior written consent of Supplier.
4.14 DIVESTITURE OF BUSINESS.
In the event any business unit, subsidiary, affiliate, or any other
portion of business is divested from EDS ("Divested Business"), which
Divested Business is licensed to use any Licensed Software under the
terms of this Agreement, (i) such Divested Business shall be entitled
to continue its use of such Licensed Software under the terms and
conditions of this Agreement (which the Divested Business shall agree
to in writing) for a period not to exceed one (1) year without
incurring and without EDS incurring additional license or maintenance
Charges for such period as a result of such divestiture except for
normal fees owed, provided that EDS shall remain liable for the
obligation of such Divested Business during such period, or (ii) the
Divested Business may enter into a new agreement with Supplier on terms
and conditions if acceptable to Supplier and the Divested Business. The
Divested Business' use of the Licensed Software shall not be extended
or enhanced during such one-year period without the written mutual
consent of EDS, Supplier, and such Divested Business.
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ARTICLE 5. WARRANTIES, INDEMNITIES, AND LIABILITIES
5.01 WARRANTY.
Supplier represents and warrants that:
(a) Supplier has not and will not enter into agreements or commitments
which conflict with the rights granted to EDS in this Agreement;
(b) The Products are and shall be free and clear of all liens and
encumbrances;
(c) No portion of the Products contain, at the time of delivery, any
"back door," "time bomb," "Trojan horse," "worm," "drop dead
device," "virus," or other computer software routines or hardware
components designed to (i) permit access or use of either the
Products or EDS' computer systems by Supplier or a third party not
authorized by this Agreement, (ii) disable, damage or erase the
Products or data, or (iii) perform any other such actions;
(d) The Products and the design thereof shall not contain
preprogrammed preventative routines or similar devices which
prevent EDS from exercising the rights set forth in this
Agreement;
(e) The Products are, and shall continue to be, data, program, and
upward compatible with any other Products available or to be
available from Supplier within the same family of products so that
data files created for a Product can be utilized without
adaptation of such other Products and so that programs written for
Products will operate on such other Products and not result in the
need for alteration, emulation, or other loss of efficiency.
Supplier shall provide to EDS at least ninety (90) days prior
written notice to discontinue any Product;
(f) Neither the performance nor the functionality of the Products will
be affected by any changes to the date format or date calculations
within any part of the Product either before, during or after the
year 2000; and
(g) Each Product (i) shall be new and shall be free from material
defects in manufacture, materials, and design, and (ii) shall
operate in conformance with its Applicable Specifications and
Documentation from the date of receipt until the date one (1) year
from the applicable Acceptance Date (the "Warranty Period") of
such Product.
Supplier will provide warranty Service to EDS at no additional cost and
will include all Services or replacement Products necessary to enable
Supplier to comply with the warranties set forth in this Agreement.
Supplier shall pass through to EDS any manufacturers' warranties which
Supplier receives on the Products and, at EDS' request, Supplier shall
enforce such warranties on EDS' behalf. Supplier agrees that EDS shall
be entitled to pass through to Product end users any warranties
received from Supplier for such Products pursuant to this Agreement.
The foregoing warranties apply only to EDS and to its end-users.
Supplier shall have no liability for, and shall not be obligated to
provide warranty service attributable to, malfunctions caused by a
malfunction of non-Supplier hardware or software, by modification of
the Licensed Software not made by Supplier, by any combination of the
Licensed Software with other software, by operator error, or by use of
the Licensed Software that is not in accordance with the operating
instructions for the Licensed Software.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, SUPPLIER MAKES NO OTHER
WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT
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LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
5.02 PROPRIETARY RIGHTS INDEMNIFICATION.
Supplier represents and warrants that (i) at the time of delivery to
EDS, no Product provided under this Agreement is the subject of any
litigation ("Litigation"), and (ii) Supplier has all right, title,
ownership interest, and/or marketing rights necessary to provide the
Products to EDS. Supplier shall indemnify and hold EDS and Product end
users and their respective successors, officers, directors, employees,
and agents harmless from and against any and all actions, claims,
losses, damages, liabilities, awards, costs, and expenses (including
legal fees) (collectively, the "Actions") resulting from or arising out
of any a claim that the Products infringe upon any copyright, patent,
trade secret or other proprietary or intellectual property right of any
third party and Supplier shall defend and settle, at its expense, all
suits or proceedings arising therefrom. The foregoing indemnification
shall only be provided if EDS shall promptly inform Supplier of any
such suit or proceeding against EDS, (iii) Supplier shall control the
defense of any such claim or action so long as EDS shall have the right
to participate in the defense of any such suit or proceeding at its
expense and through counsel of its choosing, and (iv) EDS reasonably
cooperates in such defense at Supplier's cost. The indemnification set
forth in this Section 5.02 shall not apply if the use of the then most
recent version of the Licensed Software would have prevented the
Action; provided, however, that if EDS is entitled to such version as
part of its maintenance and support Services hereunder and Supplier had
knowledge of such Action and failed to inform EDS thereof, the
provisions of the indemnification set forth in this Section 5.02 shall
apply. Supplier shall notify EDS of any actions, claims, or suits
against Supplier based on an alleged Infringement of any party's
intellectual property rights in and to the Products. In the event an
injunction is sought or obtained against use of the Products or in
Supplier's opinion is likely to be sought or obtained, Supplier shall,
at its option and expense, either (A) procure for EDS and Product end
users the right to continue to use the infringing Product as set forth
in this Agreement, or (B) replace or modify the infringing Products to
make its use non-infringing while being capable of performing the same
function without degradation of performance.
5.03 CROSS INDEMNIFICATION.
In the event any act or omission of a party or its employees, servants,
agents, or representatives causes or results in (i) damage to or
destruction of tangible property of the other party or third parties,
and/or (ii) death or injury to persons including, but not limited to,
employees or invitees of either party, then such party shall indemnify,
defend, and hold the other party harmless from and against any and all
claims, actions, damages, demands, liabilities, costs, and expenses,
including reasonable attorneys' fees and expenses, resulting therefrom.
The indemnifying party shall pay or reimburse the other party promptly
for all such damage, destruction, death, or injury.
5.04 LIMITATION OF LIABILITY.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PURSUANT TO THIS AGREEMENT
FOR ANY AMOUNTS REPRESENTING LOSS OF PROFITS, LOSS OF BUSINESS OR
INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF THE OTHER
PARTY WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
EXCEPT FOR A CLAIM ARISING OUT OF SECTIONS 5.02 AND 5.03, OR FOR FEES
DUE HEREUNDER, EITHER PARTY'S LIABILITY ARISING OUT OF THIS AGREEMENT
AND THE PRODUCTS FOR ANY AND ALL CAUSES, WHETHER FOR NEGLIGENCE, BREACH
OF CONTRACT, WARRANTY OR OTHERWISE SHALL BE LIMITED TO THE LESSER OF
$1,000,000 OR (II) THE AMOUNT PAID BY EDS FOR THE PRODUCTS. EITHER
PARTY'S LIABILITY ARISING OUT OF SECTIONS 5.02 AND 5.03 SHALL BE
LIMITED TO $3,000,000. THE LIMITATIONS SET FORTH IN THIS SECTION 5.04
SHALL APPLY
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NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
5.05 INSURANCE.
Supplier shall, at Supplier's sole expense, maintain the following
insurance:
(a) Commercial General Liability Insurance including contractual
coverage: The limits of this insurance for bodily injury and
property damage combined shall be at least:
Each Occurrence Limit $1,000,000
General Aggregate Limit $2,000,000
Products-Completed Operations Limit $1,000,000
Personal and Advertising Injury Limit $1,000,000
(b) Business Automobile Liability Insurance: Should the performance of
this Agreement involve the use of automobiles, Supplier shall
provide comprehensive automobile insurance covering the ownership,
operation and maintenance of all owned, non-owned and hired motor
vehicles. Supplier shall maintain limits of at least $1,000,000
per occurrence for bodily injury and property damage combined.
(c) Workers' Compensation Insurance: Such insurance shall provide
coverage in amounts not less than the statutory requirements in
the state where the Services are performed, even if such coverage
is elective in that state.
(d) Employers Liability Insurance: Such insurance shall provide limits
of not less than $1,000,000 per occurrence.
The insurance specified in (a) and (b) above shall: (i) name EDS as an
additional insured, and (ii) provide that such insurance is primary
coverage with respect to all insureds and additional insureds.
The above insurance coverages may be obtained through any combination
of primary and excess or umbrella liability insurance.
Supplier shall provide at EDS' request certificates evidencing the
coverages, limits and provisions specified above on or before the
execution of this Agreement and thereafter upon the renewal of any of
the policies. Supplier shall require all insurers to provide EDS with a
thirty (30) day advanced written notice of any cancellation, nonrenewal
or material change in any of the policies maintained in accordance with
this Agreement.
5.06 SURVIVAL OF ARTICLE.
The provisions of Section 5.01 shall not survive the term or
termination of this Agreement. The provisions of Sections 5.04 shall
survive the term or termination of this Agreement. The provisions of
Sections 5.03 and 5.05 shall survive the term or termination of this
Agreement for a period of two (2) years thereafter, unless this
Agreement is terminated due to the breach of EDS, in which case those
sections shall be immediately terminated. The provisions of Section
5.02 shall survive the term or termination of this Agreement, unless
this Agreement is terminated due to the breach of EDS, in which case
such section shall be immediately terminated.
ARTICLE 6. PAYMENTS TO SUPPLIER
6.01 CHARGES, PRICES, AND FEES FOR LICENSED SOFTWARE AND SERVICES.
Charges, prices, and fees to EDS ("Charges") and discounts, if any, for
Licensed Software and Services shall be determined as set forth in
Exhibit B, Purchase Orders submitted pursuant to and in accordance with
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a written offer from Supplier for special pricing, or as otherwise
agreed upon in writing by the parties, unless modified as set forth in
this Agreement. Upon EDS' request, Supplier shall: provide to EDS
current copies of Supplier's standard published prices. In no event
shall Charges exceed Supplier's then current list charges, prices and
fees. If promotional discounts or programs are extended to other
customers, dealers, or distributors of Supplier, EDS shall be entitled
to participate in such promotional discounts or programs for similar
volumes purchased under substantially similar terms and conditions. All
purchases which utilize any such discounts shall be deemed for all
purposes including, without limitation, for purposes of calculating
accumulated purchases and any discounts hereunder, to have been
purchased or licensed under this Agreement.
6.02 MODIFICATIONS TO CHARGES.
(a) Where a change in an established Charge for Licensed Software or
Services is provided for in this Agreement, Supplier shall give to
EDS at least forty-five (45) days' prior written notice of such
change. All purchase orders issued by EDS prior to the end of the
required notice period will be honored at the then current charges
so long as the scheduled delivery date of the applicable Licensed
Software or Services is within thirty days of such notice. If
Supplier's established Charge, less any applicable discount or
promotion, on the scheduled delivery date is lower than the
established Charge for such Licensed Software or Services stated
in the applicable Purchase Order, then EDS shall be entitled to
obtain such Licensed Software or Service at such lower Charge,
less any applicable discount or promotion. Once the price for
support and maintenance Services is established for a particular
license for a particular Project in accordance with Exhibit B, the
support and maintenance fees for such license for such Project
will not increase by more than [***]% per year. The preceding
sentence shall not apply to maintenance and support Services
resold by EDS or sold directly by Supplier to an end-user who
purchased their licenses from EDS.
(b) Currency. Unless otherwise stated in this Agreement, all amounts
herein are listed in, and all amounts due under this Agreement
shall be stated, reported, paid, calculated, and determined solely
in United States dollars (US$).
(d) Late Payments. Any amount that is not paid when due which are not
subject to a good faith dispute will bear interest at the lesser
of (i) the prime rate established from time to time by Citibank of
New York plus two percent, or the maximum rate allowed by law,
whichever is less. Suppler shall be entitled to recover its costs
and expenses incurred in collecting such amount, including
reasonable attorney fees.
6.03 AUTO PAYMENT.
This Section shall apply to Purchase Orders identified as being subject
to automatic payment by EDS.
(a) Single Payment for Recurring Charges. All Charges which are due
and payable on a monthly, annual or other periodic basis for
Licensed Software and Services ("Recurring Charges") shall be paid
by EDS on the same date of the month for each month that such
Charges are due (the "Remit Date"). The initial payment for a
Recurring Charge shall be made on the first Remit Date after the
Applicable Event provided that such Applicable Event occurs at
least five (5) days prior to the first Remit Date. An "Applicable
Event" is the event agreed to by the parties set forth in a
Purchase Order that initiates payment of Charges (such as the
installation, receipt, or acceptance of the Licensed Software; or
the commencement or completion of Services). If the Applicable
Event occurs less than five (5) days prior to the first Remit
Date, the initial payment for such Recurring Charge shall be made
on the following Remit Date, and EDS shall not be subject to
interest or penalties as a result of such late payment.
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(b) Payment for Other Charges. Except for Recurring Charges, or unless
otherwise agreed to by the parties in writing, all payments due
Supplier for Licensed Software and Services shall be paid within
thirty (30) days after the date of the Applicable Event.
(c) Invoices Required Under Auto Payment. Except as set forth herein,
Supplier must send EDS an invoice to receive payment for any
amounts due for any Charges which are payable and have not been
identified on the applicable Purchase Order which is subject to
automatic payment.
(d) Reconciliation. From time to time, at either party's request, the
other party shall assist with the reconciliation and adjustment of
the payments made by EDS to Supplier.
(e) Taxing Jurisdictions. Supplier shall provide EDS with the list of
states and taxing jurisdictions, and their respective registration
numbers where Supplier is qualified and registered to collect
sales/use taxes in all of the taxing jurisdictions within that
state. If such written notification is not received by EDS from
Supplier, then EDS shall remit the appropriate tax directly to the
taxing authority. Supplier shall promptly notify EDS of any
additional jurisdictions to which Supplier may qualify and
register to collect sales/use taxes.
6.04 PAYMENT THROUGH INVOICING.
This Section applies to Purchase Orders issued by EDS which are not
identified as being subject to automatic payment or to any invoice
received by EDS from Supplier as permitted by this Agreement.
(a) Except as otherwise set forth in this Agreement, any sum due to
Supplier pursuant to this Agreement not subject to a good faith
dispute shall be payable within thirty (30) days after receipt by
EDS of a correct invoice therefor from Supplier. Supplier shall
invoice EDS on or after the applicable Acceptance Date for the
Licensed Software covered by such invoice. Periodic payments, if
any, due to Supplier pursuant to this Agreement shall be invoiced
at the beginning of the period to which they apply. Payment for
any other Services shall be invoiced as agreed upon by the parties
or, in the absence of an agreement, upon completion of such
Services.
(b) A "correct" invoice shall contain (i) Supplier's name and invoice
date, (ii) the specific Purchase Order number if applicable, (iii)
description including serial number as applicable, price, and
quantity of the Licensed Software or Services actually delivered
or rendered, (iv) credits (if applicable), (v) name (where
applicable), title, phone number, and complete mailing address of
responsible official to whom payment is to be sent, and (vi) other
substantiating documentation or information as may reasonably be
required by EDS from time to time. A correct invoice must be
submitted to the appropriate invoice address listed on the
applicable Purchase Order.
6.05 TAXES.
(a) Unless EDS provides evidence of exemption, EDS shall pay or
reimburse Supplier, where EDS is liable under applicable tax
statute, amounts equal to taxes which are imposed upon EDS'
acquisition of Products or Services including federal excise
taxes, or sales or use taxes; provided, however, EDS shall not be
obligated to pay or reimburse Supplier for any taxes attributable
to the sale of any Products or Services which are imposed on or
measured by net or gross income, capital, net worth, franchise,
privilege, any other taxes, or assessments, nor any of the
foregoing imposed on or payable by Supplier.
(b) Supplier agrees to reasonably cooperate with EDS in the audit or
minimization of any applicable tax and shall make available to
EDS, and any taxing authority, all information, records, or
documents relating to any audits or assessments attributable to or
resulting from the payment process under this Agreement, and the
filing of any tax returns or the contesting of any tax.
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EDS shall not be obligated to pay or reimburse Supplier for
additions to taxes, penalties, interest, fees, or other expenses
or costs, if any, incurred by EDS as a result of, or attributable
to, (i) Supplier's failure to verify taxability of a purchase,
(ii) Supplier's failure to correctly calculate or remit taxes in a
timely manner, or (iii) Supplier's negligence, misconduct or
failure to file properly any required returns or reports, or other
required documents.
(c) Upon written notification by EDS and subsequent verification by
Supplier, Supplier shall reimburse or credit, as applicable, EDS
in a timely manner, for any and all taxes erroneously paid by EDS.
(d) EDS shall provide Supplier with, and Supplier shall accept in good
faith, resale, direct pay, or other exemption certificates, as
applicable. Supplier agrees to separately identify on the invoice
the taxable and non-taxable purchases, the types of tax and the
taxing authorities.
(e) Where Products are destined or Services are performed
internationally, then at EDS' direction, payment may be made by
EDS or its affiliate (i) in country to the local representative of
Supplier, (ii) in the United States, or (iii) in a country
mutually agreed upon by the parties.
(f) If EDS or an affiliate of EDS is required by law to make any
deduction or to withhold from any sum payable hereunder, then the
sum payable by EDS or such affiliate of EDS upon which the
deduction is based shall be paid to Supplier net of such deduction
or withholding. EDS or such affiliate of EDS shall pay the
applicable tax authorities any such required deduction or
withholding.
ARTICLE 7. TERMINATION
7.01 TERMINATION FOR CAUSE.
Except as provided below by Section 7.03 of this Agreement titled
"Termination for Non-Payment," in the event that either party
materially or repeatedly defaults in the performance of any of its
duties or obligations set forth in this Agreement, and such default is
not substantially cured within thirty (30) days after written notice is
given to the defaulting party specifying the default, then the party
not in default may, by giving written notice thereof to the defaulting
party, terminate the applicable license or Purchase Order relating to
such default as of a date specified in such notice of termination.
7.02 TERMINATION FOR INSOLVENCY OR BANKRUPTCY.
Either party may immediately terminate this Agreement and any Purchase
Order by giving written notice to the other party in the event of (i)
the liquidation or insolvency of the other party, (ii) the appointment
of a receiver or similar officer for the other party, (iii) an
assignment by the other party for the benefit of all or substantially
all of its creditors, (iv) entry by the other party into an agreement
for the composition, extension, or readjustment of all or substantially
all of its obligations, or (v) the filing of a meritorious petition in
bankruptcy by or against the other party under any bankruptcy or
debtors' law for its relief or reorganization which is not dismissed
within sixty (60) days of its filing.
7.03 TERMINATION FOR NON-PAYMENT.
Supplier may terminate any license or Purchase Order, if EDS fails to
make a payment on such Purchase Order within thirty (30) days when due
that is not the subject of a good faith dispute between the parties or
to make a payment that was the subject of a good faith dispute between
the parties within thirty (30) days of final resolution of such
dispute, shall be deemed to be a material breach of this Agreement.
Supplier may also terminate this Agreement and all Purchase Orders
thereunder, if EDS has been provided with written notice that, for at
least sixty (60) consecutive days, EDS has had an outstanding balance
of past due payments, which is not subject to a good faith dispute, of
at least $1 million, and such amount has not been paid within
forty-five (45) days of such notice.
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7.04 TERMINATION OF SOFTWARE LICENSE.
EDS may terminate any license, except licenses granted for resale, for any
reason by providing written notice to Supplier, provided that any license
or subscription fees due or to be owed for such license to which EDS has
previously committed shall remain payable to Supplier. If EDS elects to so
terminate a license, EDS shall return to Supplier or, at EDS' option,
destroy, all copies of the Licensed Software and Documentation in EDS'
possession which are the subject of the terminated License. In such event,
Supplier shall refund to EDS a prorated amount of any prepaid charges for
support Services for the Licensed Software.
7.05 RIGHTS UPON TERMINATION.
Unless specifically terminated as set forth in this Article, all licenses
(and EDS' right to use the Licensed Software in accordance with such
licenses) and Purchase Orders which require performance or extend beyond
the term of this Agreement shall, at EDS' option (except for Subscription
Licenses which shall continue for their term unless terminated pursuant to
this Article), be so performed and extended for the term of the grant
therefor and shall continue to be subject to the terms and conditions of
this Agreement; provided, however, that Supplier shall not be obligated to
provide any support and maintenance (except as part of a Subscription
License (as defined in Exhibit B), or for the remainder of a prepaid
annual support period), or any other Services related thereto. For
purposes of this Article, the termination of this Agreement pursuant to
Section 7.03 or a Purchase Order due to a breach by EDS as set forth in
Sections 7.01 or 7.03, shall automatically include the termination of the
licenses related thereto.
7.06 RETURN OF MATERIALS.
Upon termination of a license, EDS shall (i) cease using any and all
copies of the Products associated therewith, and (ii) return to Supplier
all copies of the Products and Confidential Information received from
Supplier related thereto, and all other tangible materials related to the
Products, including without limitation, all modifications and derivative
works thereof.
ARTICLE 8. MISCELLANEOUS
8.01 BINDING NATURE, ASSIGNMENT, AND SUBCONTRACTING.
This Agreement shall be binding on the parties and their respective
successors in interest and assigns, but neither party shall have the power
to assign this Agreement without the prior written consent of the other,
which consent shall not be unreasonably withheld. If Supplier subcontracts
or delegates any of its duties or obligations of performance in this
Agreement or in a Purchase Order to any third party, Supplier shall remain
fully responsible for complete performance of all of Supplier's
obligations set forth in this Agreement or in such Purchase Order and for
any such third party's compliance with the non-disclosure and
confidentiality provisions set forth in this Agreement.
8.02 AUTHORITY TO CONTRACT.
Supplier shall not enter into any contract related to the licensing of
software, or the provision of software-related services, to EDS or a legal
entity that Supplier knows is an EDS Affiliate, including without
limitation, software license agreements, schedules or amendments to this
Agreement, professional services agreements, evaluation agreements,
software development agreements, and related non-disclosure agreements,
other than through or with the prior written consent of the EDS Global
Purchasing or its designated successor organization. Supplier acknowledges
and agrees that no one other than: (a) the duly authorized representatives
of the EDS Global Purchasing Group, and (b) Vice Presidents and above,
after consultation with duly authorized representatives of the EDS Global
Purchasing Group, may bind or obligate EDS in any manner whatsoever under
any contracts with Supplier of the types described in this Section 8.02.
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8.03 COUNTERPARTS.
This Agreement may be executed in several counterparts, all of which taken
together shall constitute one single agreement between the parties.
8.04 HEADINGS.
The Article and Section headings used in this Agreement are for reference
and convenience only and shall not enter into the interpretation hereof.
8.05 AUTHORIZED AGENCY.
From time to time and at any time, EDS may assume operational
responsibility for products acquired directly or indirectly from Supplier
by third parties which become customers or affiliates, or which are
acquired by EDS, after the Effective Date.
(a) With respect to such customers, and immediately upon execution of a
contract between EDS and a customer, the products acquired from
Supplier by such customer shall be governed by the terms and
conditions of this Agreement and EDS may use such products in
accordance with this Agreement at no additional charge to EDS or its
customer, provided, however, that any software obtained from Supplier
by such customer may only be used by EDS on behalf of that customer,
and EDS shall pay all fees due under the customer agreement up to the
expiration of such agreement, and the customer shall be bound by all
confidentiality and use restrictions in such customer agreement. With
respect to each such customer, Supplier, EDS and the customer shall
execute an access agreement authorizing EDS' use of the products.
Such access agreement shall be in a form substantially similar to the
Third Party System Access Agreement attached to this Agreement as
Exhibit C.
(b) With respect to any such affiliate, and upon Supplier's receipt of
written notice from EDS and such affiliate, the license or other
agreement governing the use and support of such products shall
automatically be deemed to have been assigned to EDS, provided,
however, that subject to payment of fees set forth in subsection (a)
above, such assigned license or other agreement shall be superseded
by, and the use and support of the products shall be governed by, the
terms and conditions of this Agreement.
(c) With respect to any third party with which EDS either (i) buys,
leases, or otherwise acquires all or a substantial part of the assets
or business of such third party, or (ii) consolidates with or merges
with said third party, the license or other agreement governing the
use and support of such products shall automatically be deemed to
have been assigned to EDS. At that time, EDS may supersede such
assigned license or other agreement with the terms and conditions of
this Agreement, in which case the use and support of the products
shall be governed by the terms and conditions of this Agreement, or
EDS may elect to have the assigned license or other agreement
continue to govern the use of such products.
8.06 RELATIONSHIP OF PARTIES.
Supplier is performing pursuant to this Agreement only as an independent
contractor. Supplier has the sole obligation to supervise, manage,
contract, direct, procure, perform or cause to be performed its
obligations set forth in this Agreement, except as otherwise agreed upon
by the parties. Nothing set forth in this Agreement shall be construed to
create the relationship of principal and agent between Supplier and EDS.
Supplier shall not act or attempt to act or represent itself, directly or
by implication, as an agent of EDS or its affiliates or in any manner
assume or create, or attempt to assume or create, any obligation on behalf
of, or in the name of, EDS or its affiliates.
8.07 CONFIDENTIALITY.
Each party acknowledges that in the course of performance of its
obligations pursuant to this Agreement, such party may obtain confidential
and/or proprietary information of the other party or its affiliates or
customers. "Confidential Information" includes: information relating to
development plans, costs,
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finances, marketing plans, equipment configurations, data, access or
security codes or procedures utilized or acquired, business opportunities,
names of customers, research, and development; proprietary software; the
terms, conditions and existence of this Agreement; the pricing provisions
included within or incorporated into this Agreement; any information
designated as confidential in writing or identified as confidential at the
time of disclosure if such disclosure is verbal or visual; and any copies
of the prior categories or excerpts included in other materials created by
the recipient party. Each party hereby agrees that all Confidential
Information communicated to it ("Receiving Party") by the other, its
affiliates, or customers (collectively, "Disclosing Party"), whether
before or after the Effective Date, shall be and was received in strict
confidence, shall be used only for purposes of this Agreement, and shall
not be disclosed by the Receiving Party, its agents or employees without
the prior written consent of the Disclosing Party. This provision shall
not apply to Confidential Information which is (i) as shown by the written
records of the Receiving Party, already known by the receiving without an
obligation of confidentiality, (ii) publicly known or becomes publicly
known through no unauthorized act of the Receiving Party, (iii) rightfully
received from a third party without obligation of confidentiality, (iv)
approved by the Disclosing Party for disclosure. The Receiving Party may
disclose that portion of the Confidential Information of the Disclosing
Party as required to be disclosed pursuant to a requirement of a
governmental agency or law so long as the Receiving Party provides the
Disclosing Party with timely prior written notice of such requirement and
cooperates in obtaining a protective order or similar treatment. The
obligations of the parties under this Section 8.07 shall be in effect
during the term of this Agreement and for a period lasting (4) years
thereafter.
8.08 MEDIA RELEASES.
Except for any announcement intended solely for internal distribution by
each party or any disclosure required by legal, accounting, or regulatory
requirements, all media releases, public announcements, or public
disclosures (including, but not limited to, promotional or marketing
material) by either party or its employees or agents relating to this
Agreement or its subject matter, or including the name, trade name, trade
xxxx, or symbol of the other party or any affiliate of the other party,
shall be coordinated with and approved in writing by the other party prior
to the release thereof. Supplier shall not represent directly or
indirectly that any Licensed Software or Service provided by Supplier to
EDS has been approved or endorsed by EDS or include the name, trade name,
trade xxxx, or symbol of EDS or any affiliate of EDS on a list of
Supplier's customers without EDS' express written consent.
8.09 DISPUTE RESOLUTION.
In the event of any disagreement regarding performance under or
interpretation of this Agreement and prior to the commencement of any
formal proceedings, the parties shall continue performance as set forth in
this Agreement and shall attempt in good faith to reach a negotiated
resolution by designating a representative of appropriate authority to
resolve the dispute. Notwithstanding anything to the contrary in the
foregoing, Supplier shall be entitled to seek equitable or legal relief
without meeting the requirements of the previous sentence for any
violation of Section 4.07 of this Agreement.
8.10 PROPOSALS AND SPECIAL PROJECTS.
EDS may request a written proposal, quote, or bid from Supplier for the
provision of Licensed Software and/or Services for a specific EDS project
which may be governed by separately negotiated terms and conditions. In
such event, any Licensed Software and Services obtained for such project
shall be deemed for purposes of calculating accumulated purchases and any
discounts set forth in this Agreement, to have been obtained pursuant to
this Agreement.
8.11 GOVERNMENTAL CUSTOMERS.
This Agreement shall apply to the acquisition of Licensed Software or
Services for use in or in support of the performance of, or resale under,
a contract with a state, county, or local governmental entity (a
"Governmental Customer"). Supplier and EDS may negotiate in good faith a
supplemental agreement incorporating required flow-down provisions or
other provisions relating to, applicable to, or required by such
Governmental Customer or the proposed contract between EDS and such
Governmental Customer.
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All Licensed Software and Services obtained pursuant to this Section shall
be deemed for purposes of calculating accumulated purchases and any
discounts set forth in this Agreement, to have been obtained pursuant to
this Agreement, including purchases made by EDS in support of the United
States Federal Government under a separate contract with Supplier.
8.12 INTERNATIONAL BUSINESS.
This Agreement shall apply in countries outside the United States and its
territories. Supplier and EDS and/or their respective agents,
distributors, or affiliates authorized to conduct business in such
countries may negotiate in good faith supplemental agreements
incorporating further terms and conditions required by local law. All
Licensed Software and Services obtained pursuant to this Section shall be
deemed for purposes of calculating the accumulated purchases and any
discounts set forth in this Agreement, to have been obtained pursuant to
this Agreement.
8.13 COMPLIANCE WITH LAWS.
In the performance of its obligation under this Agreement, each party
shall comply with the requirements of all applicable laws, ordinances, and
regulations of the United States or any state, country, or other
governmental entity. In particular, both parties agree to comply with the
United States Export Administration Act, Executive Order No. 11246, as
amended by Executive Order No. 11375, the Vietnam Era Veterans
Readjustment Assistance Act of 1974, the Rehabilitation Act of 1973, the
Immigration Reform and Control Act of 1986, and the Americans With
Disabilities Act. This Section incorporates by reference all provisions
required by such laws, orders, rules, regulations, and ordinances. Each
party shall indemnify, defend, and hold the other harmless from and
against any and all claims, actions, or damages arising from or caused by
such party's failure to comply with the foregoing.
8.14 EXPORT.
Neither party shall export any Products or information protected hereunder
by an obligation of confidentiality from the United States, either
directly or indirectly, without first obtaining a license or clearance as
required from the U.S. Department of Commerce or other agency or
department of the United States Government.
8.15 NOTICES.
Wherever one party is required or permitted to give notice to the other
pursuant to this Agreement, such notice shall be deemed given when
delivered in hand, when mailed by registered or certified mail, return
receipt requested, postage prepaid, or when sent by a third party courier
service where receipt is verified by the receiving party's acknowledgment,
and addressed as follows:
In the case of EDS:
Electronic Data Systems Corporation
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxx 00000
Attn: Manager, Contracts Administration
In the case of Supplier:
ServiceWare Technologies, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attn: Contracts Administrator
Either party may from time to time change its address for notification
purposes by giving the other party written notice of the new address and
the date upon which it will become effective; first class, postage
prepaid, mail shall be acceptable for provision of change of address
notices.
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8.16 FORCE MAJEURE.
The term "Force Majeure" shall be defined to include fires or other
casualties or accidents, acts of God, severe weather conditions, strikes
or labor disputes, war or other violence, or any law, order, proclamation,
regulation, ordinance, demand, or requirement of any governmental agency.
(a) A party whose performance is prevented, restricted, or interfered
with by reason of a Force Majeure condition shall be excused from
such performance to the extent of such Force Majeure condition so
long as such party provides the other party with prompt written
notice describing the Force Majeure condition and takes all
reasonable steps to avoid or remove such causes of nonperformance and
immediately continues performance whenever and to the extent such
causes are removed.
(b) If, due to a Force Majeure condition, the scheduled time of delivery
or performance is or will be delayed for more than thirty (30) days
after the scheduled date, the party not relying upon the Force
Majeure condition may terminate, without liability to the other
party, the Purchase Order or any portion thereof covering the delayed
Products or Services.
(c) If a Force Majeure condition or other delay by Supplier causes EDS to
terminate its business relationship with a third party for whom
delayed Products were ordered and EDS has no alternative use for the
Products after using reasonable efforts to relocate or otherwise
utilize the Products, then EDS may terminate the applicable Purchase
Order and Supplier shall refund to EDS all amounts paid thereunder
related to such third party.
8.17 SEVERABILITY.
If, but only to the extent that, any provision of this Agreement is
declared or found to be illegal, unenforceable, or void, then both parties
shall be relieved of all obligations arising under such provision, it
being the intent and agreement of the parties that this Agreement shall be
deemed amended by modifying such provision to the extent necessary to make
it legal and enforceable while preserving its intent. If that is not
possible, another provision that is legal and enforceable and achieves the
same objective shall be substituted. If the remainder of this Agreement is
not affected by such declaration or finding and is capable of substantial
performance, then the remainder shall be enforced to the extent permitted
by law.
8.18 WAIVER.
Any waiver of this Agreement or of any covenant, condition, or agreement
to be performed by a party under this Agreement shall (i) only be valid if
the waiver is in writing and signed by an authorized representative of the
party against which such waiver is sought to be enforced, and (ii) apply
only to the specific covenant, condition or agreement to be performed, the
specific instance or specific breach thereof and not to any other instance
or breach thereof or subsequent instance or breach.
8.19 REMEDIES.
Except with respect to remedies identified as sole and exclusive remedies
in this Agreement, all remedies set forth in this Agreement, or available
by law or equity shall be cumulative and not alternative, and may be
enforced concurrently or from time to time.
8.20 SURVIVAL OF TERMS.
Termination or expiration of this Agreement for any reason shall not
release either party from any liabilities or obligations set forth in this
Agreement which (i) the parties have expressly agreed shall survive any
such termination or expiration, or (ii) remain to be performed or by their
nature would be intended to be applicable following any such termination
or expiration.
8.21 NONEXCLUSIVE MARKET AND PURCHASE RIGHTS.
It is expressly understood and agreed that this Agreement does not grant
to Supplier an exclusive right to provide to EDS any or all of the
Licensed Software and Services and shall not prevent EDS from developing
or acquiring from other suppliers computer software programs or services
similar to the
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Licensed Software and Services. Supplier agrees that acquisitions by EDS
pursuant to this Agreement shall neither restrict the right of EDS to
cease acquiring nor require EDS to continue any level of such
acquisitions. Estimates or forecasts furnished by EDS to Supplier prior to
or during the term of this Agreement shall not constitute commitments.
Supplier is free to enter into similar agreements, including without
limitations for similar products and services, with any other third party.
8.22 GOVERNING LAW.
THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL NOT
BE GOVERNED BY THE PROVISIONS OF THE 1980 UNITED NATIONS CONVENTION ON
CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. RATHER THESE RIGHTS AND
OBLIGATIONS SHALL BE GOVERNED BY THE LAWS, OTHER THAN CHOICE OF LAW RULES,
OF THE STATE OF TEXAS.`
8.23 ENTIRE AGREEMENT.
This Agreement constitutes the entire and exclusive statement of the
agreement between the parties with respect to its subject matter and there
are no oral or written representations, understandings or agreements
relating to this Agreement which are not fully expressed in the Agreement.
This Agreement shall not be amended except by a written agreement signed
by both parties. All exhibits, documents, and schedules referenced in this
Agreement or attached to this Agreement, and each Purchase Order are an
integral part of this Agreement. In the event of any conflict between the
terms and conditions of this Agreement and any such exhibits, documents,
or schedules, the terms of this Agreement shall be controlling unless
otherwise stated or agreed. In the event of a conflict between the terms
and conditions of this Agreement and a Purchase Order issued in accordance
with Article II, the terms of this Agreement shall be controlling. Any
other terms or conditions included in any shrink-wrap license agreements,
quotes, invoices, acknowledgments, bills of lading, or other forms
utilized or exchanged by the parties shall not be incorporated in this
Agreement or be binding upon the parties unless the parties expressly
agree in writing or unless otherwise provided for in this Agreement.
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IN WITNESS WHEREOF, Supplier and EDS acknowledge that each of the
provisions of this Agreement were expressly agreed to and have each caused this
Agreement to be signed and delivered by its duly authorized officer or
representative as of the Effective Date.
ELECTRONIC DATA SYSTEMS CORPORATION SERVICEWARE TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------------------ ---------------------------------
Printed Name: Xxxxx X. Xxxxxx Printed Name: Xxxx Xxxxxx
-------------------------------- -----------------------
Title: Director, Global Strategic Development Title: Chief Financial Officer
--------------------------------------- ------------------------------
Date: 6/30/00 Date: 7/5/00
---------------------------------------- -------------------------------
Fed. Tax ID #: 00-0000000
----------------------
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EXHIBIT A:
EDS BUSINESS PRACTICES
EDS' suppliers have played a key role in our continuous growth and success. We
sincerely appreciate your support. In order to avoid any conflict of interest
between our suppliers and EDS employees and to keep business relationships on a
professional basis, EDS has established and briefed its employees on the
following business practices. Please review these business practices carefully
and give a copy of this Exhibit to any of your associates who have a need to
know.
1. EDS expects its suppliers to provide a quality product or service for
which they will be fairly paid.
2. In selecting suppliers, EDS will test the market to assure quality of
service and fairness of price.
3. No EDS employee is to ask for anything of value from a supplier. Gifts
from a supplier such as tickets to athletic events, concerts or the
theater, personal travel, or any type of personal item are discouraged by
our business practices.
4. If any EDS employee is offered or accepts an item of value from a
supplier, the employee is to report it to the appropriate EDS management.
5. If any EDS employee engages in any type of unethical behavior such as
requesting anything of value from a supplier, the supplier is requested to
report the incident to the Director of Purchasing or the General Counsel
of EDS.
6. Occasional meals during visits to a supplier's facilities or a customer's
location during which a supplier incurs normal and reasonable marketing
expenses are acceptable. The EDS employee is required to report such meal
expenses to their management.
EDS appreciates your cooperation in complying with these business practices.
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EXHIBIT B:
CHARGES, PRICES, AND FEES
Except for the charges for the Web Service Delivery Portal Project (as defined
below), EDS may purchase licenses for the Licensed Software set forth below at
Supplier's then current list price, less a [***]% discount.
Maintenance and support Services for use for other than resale shall be provided
at Supplier's then current list price therefor less [***]%.
For Maintenance and support Services resold by EDS where the customer contracts
with EDS, EDS shall pay to Supplier, the greater of (i) [***]% of Supplier's
then current list price for such maintenance or support, or (ii) [***]% of the
net revenue invoiced by EDS to the end-user therefor.
For the initial sale of Maintenance and support Services sold by Supplier
concurrently with the sale of Licensed Software by EDS to an end-customer,
Supplier shall pay to EDS a commission equal to [***]% of Supplier's list price
for such maintenance and support Services.
Any other Services provided by Supplier hereunder shall be provided according to
Supplier's then current list price.
Any Product or Service purchased outside the United States or for use outside
the United States shall be subject to a [***]% uplift, except for Products used
with the Web Service Delivery Portal Project (as defined below).
The Supplier's current list prices are as follows:
1. eService SUITE
----------------------------------------------------------------------------------------------------
Product Perpetual License Annual Subscription
(does not include maintenance) (includes maintenance)
----------------------------------------------------------------------------------------------------
ESERVICE ARCHITECT $[***] PER SEAT NOT AVAILABLE
Only a member of the
service/support organization
of the customer who is
responsible for managing the
knowledge base, which may
include any or all of the
following: authoring,
administration, quality
assurance and technical
support, may use eService
Architect.
----------------------------------------------------------------------------------------------------
ESERVICE PROFESSIONAL $ [***] PER SEAT NOT AVAILABLE
Only a member of the service
organization of the customer
who provides support for
others; i.e., first- and second-
----------------------------------------------------------------------------------------------------
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level help desk and customer
service analysts, field
engineers, and network
administrators
----------------------------------------------------------------------------------------------------
ESERVICE SITE NAMED USER SEAT PRICING NAMED USER SEAT PRICING
$[***] PER NAMED USER $[***] PER NAMED USER
(EDS PRICE $[***] PER SEAT, [***]% (EDS PRICE $[***] PER
DISCOUNT DOES NOT APPLY) SEAT, [***]% DISCOUNT
DOES NOT APPLY)
CONCURRENT PRICING
CONCURRENT PRICING
$[***] PER SEAT
NOT AVAILABLE
SERVER-BASED PRICING
SERVER-BASED PRICING
SVRS OR CPU/SVR NAMED
USERS PRICING NOT AVAILABLE
1 2 50 $[***]
1 2 100 $[***]
1 3 300 $[***]
1 4 500 $[***]
2 4 1,000 $[***]
3 4 1,500 $[***]
4 4 2,000 $[***]
----------------------------------------------------------------------------------------------------
Software Options Site - Perpetual License Site - Annual Subscription
----------------------------------------------------------------------------------------------------
REPLICATION (FEATURE THAT $[***] NOT AVAILABLE
SYNCS UP MULTIPLE SERVERS.)
MODULE USED WITH ARCHITECT.
----------------------------------------------------------------------------------------------------
Maintenance
----------------------------------------------------------------------------------------------------
PRODUCT MAINTENANCE AND ANNUAL 18% OF SOFTWARE LIST PRICE
SUPPORT (INCLUDING REPLICATION) AT
TIME OF BILLING
----------------------------------------------------------------------------------------------------
For purposes of this Exhibit and this Agreement, the purchase of a "Seat
License" allows access by one workstation per seat purchased to the
applicable Licensed Software, and does not refer to the number of
individual users who may use the particular portion of the Licensed
Software. EDS may make copies of the applicable Licensed Software for
which a seat license is purchased, to be placed on as many servers as
required to support the number of seats purchased. Additionally, EDS may
load on each workstation for which a seat is purchased, the workstation
portion of such applicable Licensed Software.
For purposes of this Exhibit and this Agreement, the purchase of a "Named
User Seat License" allows access by one identified workstation per seat
purchased to the applicable Licensed Software, and does not refer to the
number of individual users who may use the particular portion of the
Licensed Software. Only identified workstations may access the Licensed
Software. EDS may make copies of the applicable Licensed Software for
which a named user seat license is purchased, to be placed on as many
servers as required to support the number of named user seats purchased.
Additionally, EDS may load on each
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identified workstation for which a named user seat is purchased, the
workstation portion of such applicable Licensed Software. EDS may change
the workstation for which a seat is purchased, provided that it first
deinstalls the Licensed Software from the previous workstation.
For purposes of this Exhibit and this Agreement, the purchase of a
"Concurrent License" allows access to the particular portion of the
Licensed Software by the maximum number of users (connections) permitted
to access the applicable Licensed Software at any one time -- i.e., peak
load. EDS may make copies of the applicable Licensed Software to be placed
on as many servers as required to support the number of concurrent
connections purchased. No portions of the applicable Licensed Software may
be loaded on a workstation which accesses such Licensed Software.
For purposes of this Exhibit and this Agreement, a "Server Based License"
allows for the use of the particular portion of the Licensed Software to
be used on a the distinct number of servers as set forth above or the
applicable number of CPUs as set forth above, to support the number of
Named User Seats as outlined above.
WEB SERVICE DELIVERY PORTAL PROJECT.
GENERAL. Supplier and EDS acknowledges that a group within EDS is
currently developing a Web based portal project for EDS to provide
Outsourcing services to its end users via a Web access portal ("Web
Service Delivery Portal Project"). EDS would like to use, and Supplier
would like to supply, the Licensed Software as part of the Web Service
Delivery Portal Project. The parties agree that the Licensed Software is
hereby licensed to EDS subject to all of the terms and conditions of this
Agreement, accept for the special terms and conditions applicable only to
the use of the Licensed Software for the Web Service Delivery Portal
Project as set forth in this Exhibit.
LICENSE GRANT. Upon the execution of this Agreement, Supplier grants to
EDS, and EDS accepts, a three year subscription license for 500,000 Named
User Seats for the eService Site for the Web Service Delivery Portal
Project, in consideration of the payments set in the next paragraph.
Additionally, upon the delivery of the eService Site, Supplier shall grant
to EDS, at no additional charge, a license to use the number of Seat
Licenses for eService Architect and for eService Professional as needed to
support the Web Service Delivery Portal Project solely to be used for the
Web Service Delivery Portal Project. The subscription for 500,000 Named
User Seats for the eService Site may be used by EDS for Projects other
than the Web Portal Project, but not for resale. The Seat Licenses
provided pursuant to this paragraph for eService Architect and for
eService Professional are solely for use with the Web Service Delivery
Portal Project and shall not be used to support any other Project or for
resale.
PAYMENTS. Concurrently with the execution of this Agreement, EDS shall
place a non-cancelable, non-refundable order for a three year Subscription
License for the 500,000 Named User Seats for the eService Site described
above at a price of $[***] per seat per year. Payment for such licenses
shall be as follows:
--------------------------------------------------------------------------------
Payment Amount Payment Due
--------------------------------------------------------------------------------
First Years Fees $[***] July 30, 2000
--------------------------------------------------------------------------------
Second Years Fees $[***] July 30, 2001
--------------------------------------------------------------------------------
Third Years Fees $[***] July 30, 2002
--------------------------------------------------------------------------------
B-3
33
Each additional subscription for Named User Seat licenses for eService Site for
the Web Service Delivery Portal Project may be purchased on a three year
commitment for an additional $[***] per seat per year. The payments for each
additional Named User Seat license shall be as follows:
-------------------------------------------------------------------------------------------------
Payment Amount Payment Due
-------------------------------------------------------------------------------------------------
First Years Fees $[***] per seat Thirty days after the Purchase
Order for such license, which
purchase order shall be provided
within thirty days of the first use of
such license
-------------------------------------------------------------------------------------------------
Second Years Fees $[***] per seat the first anniversary thereafter
-------------------------------------------------------------------------------------------------
Third Years Fees $[***] per seat the second anniversary thereafter
-------------------------------------------------------------------------------------------------
The yearly payments set forth in this "Payments Section" shall be
considered a Recurring Charge for purposes of Section 6.03 of this
Agreement.
At the conclusion of the three year subscription for the 500,000 Named
User Seats for the eService Site for the Web Service Delivery Portal
Project described above, EDS may purchase a perpetual license for such
500,000 Named User Seats for a one time payment of $[***], plus $[***] per
seat per year for maintenance and support Services therefor for the next
two years. For the year following such two year period, Supplier may
increase the maintenance and support fees therefor by not more than
[***]% for such year, and by not more than [***] per year for each year
thereafter.
At the conclusion of each three year subscription for each additional
Named User Seat license for the eService Site for the Web Service Delivery
Portal Project above the 500,000 set forth above, EDS may purchase a
perpetual license for each such additional Named User Seat, for a one time
payment of $[***] per seat, plus $[***] per seat per year for maintenance
and support Services therefor for the next two years. For the year
following such two year period, Supplier may increase the maintenance and
support fees therefor by not more than [***]% for such year, and by not
more than [***] per year for each year thereafter.
COPIES. Supplier shall provide to EDS a gold copy CD of the Licensed
Software for use with the Web Service Delivery Portal Project for EDS to
make the appropriate number of copies of the Licensed Software for the Web
Service Delivery Portal Project. On July 30 and January 1 of each year,
EDS shall provide to Supplier a written report showing the total number of
licenses for the Products used for the Web Service Delivery Portal Project
or transferred to another Project during the prior six month period.
MAINTENANCE. Level one support for the Licensed Software for EDS and its
end-users who use the Web Service Delivery Portal Project shall be the
responsibility of EDS.
B-4
34
2. xxxxxxxxxxxx.xxx
----------------------------------------------------------------------------------------------------
SERVICE PROFESSIONAL INTERNAL SELF-SERVICE EXTERNAL
KNOWLEDGE CHANNEL LICENSES LICENSE SELF-SERVICE
(annual subscription, only) LICENSE
FOUNDATION CHANNELS FROM
SUPPLIER
----------------------------------------------------------------------------------------------------
Supplier-authored content PER SEAT: TOTAL # OF USERS:
covering Microsoft Desktop
Applications, Back Office, and $[***] $[***] Negotiated on
Operating Systems; hardware; a case-by-
Internet applications; Corel; case basis
Novell; Lotus; Y2K.
----------------------------------------------------------------------------------------------------
KNOWLEDGE CHANNEL FROM 3COM
----------------------------------------------------------------------------------------------------
$[***] per seat $[***] per seat N/A
----------------------------------------------------------------------------------------------------
KNOWLEDGE CHANNELS FROM
MICROSOFT CORPORATION
----------------------------------------------------------------------------------------------------
Covers the following Microsoft $[***] per seat $[***] per seat N.A.
product categories: Desktop
Applications; Back Office;
Operating Systems; Hardware;
Internet Applications; Macintosh
Applications; and Home
Entertainment.
----------------------------------------------------------------------------------------------------
KNOWLEDGE CHANNEL FROM NOVELL
----------------------------------------------------------------------------------------------------
Contains the Novell Technical $[***] per seat $[***] per seat N.A.
Information Documents
----------------------------------------------------------------------------------------------------
ADDITIONAL KNOWLEDGE CHANNELS
FROM SUPPLIER
----------------------------------------------------------------------------------------------------
SAP's R/3 $[***] per seat $[***] per seat Negotiated on
a case-by-
case basis
----------------------------------------------------------------------------------------------------
B-5
35
(a) DESCRIPTION OF LICENSES
All prices are for annual subscriptions, which includes Support.
External Self-Service licenses are currently available only for the Channels
authored by Supplier -- the ServiceWare Foundation Channels and Supplier's
SAP's R/3 Channel.
There are no minimum purchase requirements. Purchase of Foundation Channels is
not required in order to purchase other Channels. There is no minimum number of
seats.
Service Professional: A member of the support organization who provides
technical support for others; this includes first- and second-level help
desk analysts, field engineers, and network administrators. Prices are for
seats (workstations), not for individual named users.
Internal Self-Service: A license to give direct access to xxxxxxxxxxxx.xxx to
all the customer's employees (including consultants). The price is based
on the total number of employees who may access the software, regardless
of the actual number that will make use of xxxxxxxxxxxx.xxx. For example,
a customer with 2,500 employees who may have access to the Foundation
Channels (Package 3) would pay $[***].
The Internal Self-Service license does not cover the customer's service
professionals, for whom the customer must purchase individual Service
Professional seat licenses.
External Self-Service: A license to give direct access to xxxxxxxxxxxx.xxx to
all the customer's registered customers, suppliers and partners via the
Internet. Xxxxxxxxxxxx.xxx can only be offered as part of the customer's
self-service support offering and only in conjunction with information
about the customer's products. It can not be offered via an unrestricted
public-access Web site or as a 'stand-alone' offering.
Subscription sales for xxxxxxxxxxxx.xxx may be discontinued by Supplier on
thirty (30) days prior written notice.
EDS's right to resell licenses for xxxxxxxxxxxx.xxx, or any portion thereof, is
limited to sales as a stand-alone product or an integrated with the
eService Suite.
Other offerings of xxxxxxxxxxxx.xxx not set forth above may be added to this
Agreement upon the mutual written consent of Supplier and EDS.
B-6
36
EXHIBIT C:
THIRD PARTY SYSTEM ACCESS AGREEMENT
AMONG
{CUSTOMER},
<>
AND
ELECTRONIC DATA SYSTEMS CORPORATION
THIS Third Party System Access Agreement (the "Access Agreement")
effective as of {Effective Date}, is by and among {CUSTOMER LEGAL NAME}
("Customer"), <> ("Supplier") and ELECTRONIC DATA SYSTEMS CORPORATION
("EDS").
W I T N E S S E T H:
WHEREAS, Supplier owns certain software products (hereinafter referred
to as "Software") more specifically described in the {Supplier/Customer
Agreement Name}, dated {Supplier/Customer Agreement Date}, between Customer and
Supplier (the "License Agreement"); and
WHEREAS, Supplier and EDS have entered into a {EDS/Supplier Agreement
Name}, dated {EDS/Supplier Agreement Date}, pursuant to which EDS may obtain
certain software products and services from Supplier (the "Master Agreement");
WHEREAS, Customer and EDS have entered into an information technology
services agreement (the "ITS Agreement") pursuant to which EDS will provide data
processing and other services ("Services") requiring that EDS have access to the
Software; and
WHEREAS, the parties desire that EDS undertake appropriate contractual
commitments to assure that the Software will be used only in accordance with and
subject to the terms and conditions of the Master Agreement and this Access
Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Customer, Supplier and EDS hereby
agree as follows:
1. Supplier hereby grants EDS the right to use, execute, store and
display (collectively "Access") the Software set forth in Attachment
1 to this Access Agreement for the purpose of performing its
obligations pursuant to the ITS Agreement. The parties agree that
EDS' Access of such Software, and Supplier's support and maintenance
obligations with respect to the Software, shall be governed by the
terms and conditions of the Master Agreement; provided, however, EDS
may Access the Software for the sole and exclusive purpose of
providing Services on behalf of Customer.
2. Customer shall be entitled to all protections under the Master
Agreement, including, but not limited to, proprietary rights
indemnification as defined in the Master Agreement.
C-1
37
3. The parties agree that EDS shall be Customer's agent for payment of
any fees due to Supplier under the Master Agreement from the date of
this Access Agreement until Supplier is notified otherwise. In the
event of a conflict between this Access Agreement and the License
Agreement, this Access Agreement will prevail.
4. This Access Agreement shall commence as of the date first set forth
above and shall continue in effect until the earlier of (i) the
termination of the ITS Agreement, (ii) Supplier's receipt of written
notice from EDS that EDS' need to Access the Software has ceased, or
(iii) the termination of the License Agreement. Upon termination of
this Access Agreement, EDS shall discontinue all use of the Software
and; provided that the License Agreement has not terminated,
Customer's continued use of and Supplier's support and maintenance
obligations with respect to the Software shall be governed by the
terms and conditions of the License Agreement. At such time, EDS
shall have no further liability or responsibility with respect to
such Software.
IN WITNESS WHEREOF, the parties have caused this Access Agreement to be
executed as of the dates indicated.
SERVICEWARE TECHNOLOGIES, INC. {CUSTOMER}
By: By:
-------------------------------- ---------------------------------
Printed Name: Printed Name:
---------------------- -----------------------
Title: Title:
----------------------------- ------------------------------
Date: Date:
------------------------------ -------------------------------
ELECTRONIC DATA SYSTEMS CORPORATION
By:
--------------------------------
Printed Name:
----------------------
Title:
-----------------------------
Date:
------------------------------
C-2
38
ATTACHMENT 1
SOFTWARE
This Attachment 1 shall automatically be deemed to include any and all software
products obtained by Customer from Supplier after the effective date of the ITS
Agreement.
C-3
39
EXHIBIT D:
EDUCATION SERVICES
1. Certain Definitions. The following definitions apply to this Exhibit:
(a) "EDS Students" means employees of EDS and employees of EDS' customers
or suppliers who receive Education Services and participate as
students.
(b) "Education Services" includes, but is not limited to, student and
instructor training, and time and material services provided or to be
provided by Supplier pursuant to the Agreement and this Exhibit.
(c) "Location" means the place where Education Services are performed or
are to be performed and/or where Documentation for Education Services
is to be delivered.
2. Supplemental Supplier Obligations. Supplier will provide to EDS the
Education Services specified in each Purchase Order in accordance with the
terms and conditions set forth in this Agreement and this Exhibit and
will:
(a) Designate an individual who will be EDS' contact person at Supplier
during the term of this Agreement and who shall have the authority
and power to make management decisions relating to Education Services
on behalf of Supplier. Such individual shall provide, at the request
of EDS and within a reasonable period of time, any requested
management decisions. Supplier may change the contact person upon
notice to EDS.
(b) Provide sufficient Documentation for each EDS Student at no charge to
EDS. EDS Students may retain all such Documentation after completion
of the Educational Services to which such Documentation applies.
(c) Provide necessary education aids, such as references, films,
overheads, or other similar instructional aids for use with Education
Services.
(d) If Education Services are to occur at an EDS Location, request in
writing in advance, any education or audiovisual materials or
equipment which should be present at the EDS Location for use in
teaching. Such materials or equipment may include, but shall not be
limited to, overhead projectors, film projectors, flip charts, boards
and markers, personal computers for EDS Students' use, etc.
("Training Aids").
(e) For Education Services which occur at an EDS Location, allow for the
substitution or cancellation of EDS Students at no additional charge.
(f) Provide to EDS, within thirty (30) days of the end of each calendar
quarter, a written report for the previous quarter indicating the
Location, the dates, the aggregated Charges paid by EDS, and the
number of EDS Students in attendance for all Education Services
provided by Supplier during the previous quarter.
(g) Provide sufficient Employees for each Education Service offering to
maintain a maximum student-to-instructor ratio of twenty-two (22)
students to a team of one (1) instructor and one (1) co-instructor,
unless otherwise agreed. In the provision of "train-the-trainer"
Services, Supplier will provide
D-1
40
sufficient Employees to maintain a maximum student-to-instructor ratio
of eight (8) students to a team of one (1) instructor and one (1)
co-instructor.
3. Supplemental EDS Obligations. EDS will, at its own cost and expense,
provide classroom facilities and reasonable and necessary Training Aids,
based on availability and discretion, for classes at an EDS Location.
4. Open and Closed Education Services. A Purchase Order shall indicate if a
course is "open," which means that EDS Students and other commercial
students may attend the course, or "closed," which means the course is
only available to EDS Students. Public classes at Supplier's Location
shall always be considered open.
5. Charges. Where EDS is paying for Education Services on a flat fee per
class basis, EDS shall not be required to pay any additional sums in the
event of student substitution or the student fails to attend the class
without notice. Where EDS is paying for the Education Services on a flat
fee per student basis, EDS shall be required to pay only for those EDS
Students actually in attendance.
D-2
41
Exhibit F
Direct Competitors
ServiceWare Competitors by Product Area
Software Competitors
Primus
ServiceSoft
Peregrine
Tivoli
eGain
Kana
Knowledge Management Solutions
Content Competitors
Knowledge Brokers
RightNow Technologies
EarthWeb
Ask Jeeves
My HelpDesk
D-3
