EXHIBIT 6
SOFTWARE APPLICATION DEVELOPMENT AGREEMENT
THIS AGREEMENT is entered effective as of July 17, 1995
between:
Public Service Company of Oklahoma (herein "PSO")
000 Xxxx 0xx Xxxxxx
Xxxxx, XX 00000-0000
and
RIKA Management Company, LLC (herein "RMC")
00000 Xxxxx Xxxxxx
Xxxxx, XX 00000
WHEREAS, PSO desires that RMC assist with and perform the
development of certain software applications described herein.
NOW THEREFORE, for good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the parties agree as
follows:
1. Relationship of the Parties
1.1. RMC is engaged by PSO as an independent contractor to
assist with and perform the development of certain substation automation
software applications which are hereinafter described (the "Software").
1.2. Nothing contained in this Agreement shall be deemed to
prevent RMC from performing development or other services for other parties.
2. Development of the Software
2.1. RMC shall develop the Software for PSO in accordance
with the concepts, specifications, schedules and limitations set forth in
(the "Specifications").
2.1.1 The parties anticipate that the Specifications
will undergo change during the early development stages. Until
delivery of the Software to PSO, PSO will have the right to
change the Specifications with the express written consent of
RMC.
2.2. PSO will designate a "Project Director" who will be
authorized to provide RMC with such information as it may require from time to
time in order to perform its services under this Agreement. The designated
Project Director will also be authorized to act on behalf of PSO, to issue
instructions to RMC, and to execute on behalf of PSO any changes to the
Agreement or its schedules. RMC may rely on any action of the Project
Director as being the authorized act of PSO. PSO will name the designated
Project Director in Schedule 2, and may change the Project Director only after
first giving written notice of such change, together with the identity of the
new Project Director, to RMC.
3. Development Fee
3.1. In consideration of RMC's performance of services in
connection with the development of the Software for PSO, PSO shall compensate
RMC as set forth herein.
3.2 Payment shall be made to RMC as follows:
3.2.1 $500,000.00 will be payable upon execution of
this Agreement.
3.2.2. $300,000.00 will be available July 31, 1995.
3.2.3. $200,000.00 will be available August 31, 1995.
3.2.4. $500,000.00 will be available September 30,1995.
3.2.5 $500,000.00 will be available December 29, 1995.
3.2.6 $1,050,000.00 will be available March 31, 1996.
3.3. A payment that is made available to RMC will not be
actually paid to RMC until RMC requests in accordance with this Agreement, and
will remain available to RMC only until the end of the Availability Period.
3.3.1 Each amount that is made available to RMC is known
as the "Available Payment".
3.3.2 The date an Available Payment first becomes
available to RMC is known as the "Availability Date" with
respect to such Available Payment.
3.3.3 The period beginning with an Availability Date and
ending on the Acceptance Date is known as the "Availability Period." The
"Acceptance Date" is the date on which PSO gives its Final Acceptance for the
Software.
3.3.4 The aggregate payments actually made by PSO to RMC
at any particular date is known as the "Actual Payment".
3.4. Each RMC request for payment shall be made to PSO in
writing.
3.5. To the extent PSO is obligated to pay an amount requested
to RMC, within 10 business days after receipt of the request for payment PSO
will deliver the amount requested to RMC in immediately available funds.
3.5.1 Unless the parties have mutually agreed otherwise,
PSO will not be obligated to pay to RMC any amount which, when added to the
Actual Payment theretofore made by PSO for the applicable Availability Period,
exceeds the aggregate Available Payments for the Availability Period.
3.5.2 Unless the parties have mutually agreed otherwise,
PSO will not be obligated to pay to RMC any requested amount if an uncured
Event of Default has occurred with respect to RMC.
3.5.3 In the event any requested payment is not timely
made, and payment is not otherwise excepted, then PSO will be additionally
obligated to pay interest on the unpaid amount at the rate of 8.0% per annum
from the due date of such payment to the date of actual receipt by RMC.
3.6. To the extent RMC does not request payment of an
Available Amount to it on or before the end of the Availability Period, RMC's
right to receive payment of such Available Amount will lapse.
3.7. Each payment actually made to RMC will become subject to
the provisions of the Member Agreement when and if this Agreement terminates
by reason of the Member Agreement becoming effective.
3.8. The payments by PSO hereunder are exclusive of federal,
state and local excise, sales, use and other taxes now or hereafter levied or
imposed on the performance of this Agreement or on the Software and services
provided hereunder. PSO shall be responsible for and shall pay any use taxes
levied or imposed by the jurisdiction in which the Software is installed and
that are based upon PSO's use of the Software or on the services performed by
RMC in connection therewith. Any other taxes, including personal property
taxes and any taxes or amount due in whole or in part because of any failure
by RMC or its agents to file any return or information required by law, rule
or regulation, shall be borne by RMC. Any taxes included in an invoice
submitted to PSO by RMC shall be listed as separate line item.
4. Delivery
4.1. On or about the Delivery Date (as set forth in the
Specifications), RMC shall deliver a machine executable copy of the Software
on appropriate media along with any other deliverables required by the
Specifications set forth in Schedule 1.
5. Final Acceptance
5.1. PSO will have a period of 90 days from the Delivery Date
to give its Final Acceptance of the Software, or to reject the Software as not
complying with the specifications under this Agreement.
5.2. PSO may reject the Software only if it does not comply
with the specifications under this Agreement.
5.3. The date on which PSO renders its Final Acceptance of the
Software is known as the "Acceptance Date".
6. Maintenance
6.1. During the Warranty Period, RMC shall use its best
efforts to correct significant Software errors reported in writing to RMC by
PSO. Notification of such errors by PSO must be properly documented and
forwarded to RMC in a timely manner.
6.2. RMC shall deliver such corrections to PSO for
installation by PSO with such assistance of RMC as PSO may reasonably request.
6.3. After the end of the Warranty Period, RMC will provide
maintenance and support services to PSO upon such terms and conditions as the
parties shall agree. The maintenance and support services to be provided are
described in Schedule 3.
7. Warranty
7.1. RMC warrants that:
7.1.1 For a period of 1 year, beginning with the
Acceptance Date ("Warranty Period"), the Software will perform substantially
in with its Specifications in all material respects, the Software shall be
compatible with and capable of efficiently operating on the type CPU(s) on
which the Software is installed, that the Software shall conform to and
perform in accordance with all applicable Software descriptions and
Specifications, and that RMC shall, at no additional charge, furnish the
services described herein, to correct any defects and nonconformities and
place or maintain the Software in compliance with the standards set forth
herein. If RMC is unable to correct any defective or nonconforming Software
through the performance of Software Maintenance Services, RMC shall promptly
replace such Software without charge to PSO. All replacement Software must
comply with the requirements of this warranty provision.
7.1.2. On the Delivery Date, all documentation for the
Software shall be substantially free from defects in material and workmanship
and shall consist of the then current documentation for the corresponding
Software. In the event of any nonconformance with this warranty, RMC shall,
without charge, promptly take action to the correct any defects and bring the
documentation and Software into agreement.
7.1.3. All services furnished by RMC shall be performed by
properly qualified personnel of RMC in any orderly and professional manner
with a view toward minimizing any disruption of PSO's business operations and
optimizing PSO's use of the Software. Promptly after being informed of any
defect or nonconformity in such services, RMC shall correct or reperform the
defective or nonconforming services.
7.1.4. RMC warrants and represents that the Software is not
subject to any lien, claim or encumbrance inconsistent with the license rights
granted herein and that PSO shall be entitled to possess and use the Software
during the license term specified herein, without any interruption by RMC or
any party claiming by or through RMC, provided that PSO shall duly perform its
obligations hereunder.
7.2. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THERE ARE
NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RESPECTING THIS
AGREEMENT OR ANY SOFTWARE, DOCUMENTATION OR SERVICES FURNISHED HEREUNDER BY
RMC.
8. Ownership Rights
8.1. Except as limited herein, PSO and RMC shall each have a
perpetual, non-exclusive and unrestricted, license to use, modify, sublicense,
sell or otherwise transfer the Software.
8.2. In the event that either PSO or RMC modifies the Software
in any way, whether for itself or for a third party, none of the rights to the
modification and the Software as modified that accrue to the modifying party
will accrue to the other party.
9. Source Code
9.1. Each of the parties will have an unrestricted right to
the Software source code, including all modifications in which the parties
have an interest.
9.2. However, each of the parties agrees that it will treat
the Software source code as confidential information of the other party and
will not disclose the contents of the source code to, or otherwise permit
access to the source code by, any third party without the express written
consent of the other party, which consent will not be unreasonably withheld.
9.2.1. This limitation will not apply to any disclosure of such
information to an employee or independent contractor engaged for the purpose
of maintaining or modifying the Software; provided that the contracting party
has required such person to execute a confidentiality agreement that
reasonably preserves and protects the confidential nature of such information.
9.2.2. This limitation will not apply to any disclosure of such
information that is required to be made by law or regulation.
10. Confidential Information and Trade Secrets
10.1. RMC, during the term of this Agreement, may have access
to, become familiar with, and be actively involved in the development of
various trade secrets and confidential information of PSO, as well as
information relating to PSO's customers and business, its plans, marketing
techniques, sales techniques, etc. (the "Proprietary Information") all of
which are recognized hereby as being immediately vested in and exclusively
owned by PSO or a RMC of PSO, unless specifically exempted or excepted from
the terms of this Agreement.
10.1.1. PSO agrees that it will identify in writing any
Proprietary Information that it wishes to protect under this
Agreement, and that any information not so identified will not
be considered Proprietary Information for purposes of this
Agreement.
10.1.2. Except as otherwise expressly provided in this
Agreement, RMC shall not directly or indirectly use, divulge, publish,
disclose, reveal, or communicate to any other person the Proprietary
Information. This prohibition will survive the termination of the Agreement.
10.1.2.1. RMC shall be entitled to disclose the
contents of any of the Proprietary Information to persons who
are then employees of PSO, and to employees of RMC, but only as
necessary to permit RMC to carry out the continued development
of the Software and its enhancements.
10.1.2.2. This limitation will not apply to any disclosure of
such information that is required to be made by law or
regulation.
10.2. PSO, during the term of this Agreement, may have access
to, become familiar with, and be actively involved in the development of
various trade secrets and confidential information of RMC, as well as
information relating to RMC's customers and business, its plans, marketing
techniques, sales techniques, etc. (the "Proprietary Information") all of
which are recognized hereby as being immediately vested in and exclusively
owned by RMC, unless specifically exempted or excepted from the terms of this
Agreement.
10.2.1. RMC agrees that it will identify in writing any
Proprietary Information that it wishes to protect under this
Agreement, and that any information not so identified will not
be considered Proprietary Information for purposes of this
Agreement.
10.2.2. Except as otherwise expressly provided in this
Agreement, RMC shall not directly or indirectly use, divulge,
publish, disclose, reveal, or communicate to any other person
the Proprietary Information. This prohibition will survive the
termination of the Agreement.
10.2.2.1. PSO shall be entitled to disclose the contents
of any of the Proprietary Information to persons who are then
employees of PSO, and to employees of RMC, but only as
necessary to permit PSO to carry out the continued development
of the Software and its enhancements.
10.2.2.2. This limitation will not apply to any
disclosure of such information that is required to be made by
law or regulation.
11. Duration and Termination
11.1. Unless earlier terminated as set forth below, the term
of this Agreement will begin on the date of its execution and will end on the
date of PSO's Final Acceptance of the Software.
11.2. This Agreement may be terminated before Final Acceptance
as set forth below:
11.2.1. PSO or RMC may terminate this Agreement without
any further obligation upon sixty (60) days prior written
notice whenever any of the following events occur:
11.2.1.1. Any material breach of this Agreement by
the other party which is not cured within the sixty (60) day
notice period;
11.2.1.2. Any failure of the other party to make
any payment as required under this Agreement, which is not
cured within the sixty (60) day notice period;
11.2.1.3 Any inability, financially or otherwise,
or failure of the other party to perform any material
obligation hereunder, which is not cured within the sixty (60)
day notice period.
11.2.2. This Agreement will automatically terminate at
such time as the Member Agreement becomes effective.
11.3. Except as otherwise specifically provided in the Member
Agreement, upon termination of this Agreement as provided above:
11.3.1. All provisions relating to confidentiality, trade
secrets, Proprietary Information, copyrights, trademarks,
patents, warranties and indemnities will remain in full force
and effect notwithstanding the termination of this Agreement.
11.3.2. If the Agreement is terminated before Final
Acceptance by PSO, PSO shall be entitled to the same non-
exclusive license to use the Software as it exists in its then
present state of completion that it would have been entitled to
receive under Section 8. However, all obligations of RMC under
Section 7 will be void and unenforceable.
11.3.3. All payments made to RMC prior to such
termination of the Agreement pursuant to Section 12.2.2. will
be treated as described in the Member Agreement.
12. Force Majeure
12.1. Neither party will be held liable for failure to fulfill
its obligations under this Agreement, if such failure is caused by any cause
beyond the reasonable control of such party, including (by way of example and
not as a limitation) flood, earthquake, extreme weather, fire, or other
natural calamity, or acts of governmental agency.
13. Limitation of Liability
13.1. NEITHER PARTY WILL BE ENTITLED TO INDIRECT, INCIDENTAL,
OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, BASED ON ANY BREACH OR
DEFAULT UNDER THIS AGREEMENT.
13.2. RMC will not be liable for any claim against PSO, and
PSO will not be liable for any claim against RMC, by a third party.
13.3. The liability of RMC for damages to PSO for any cause
whatsoever arising out of, or in any way related to this Agreement shall in no
event exceed the compensation actually paid by PSO to RMC. Similarly, the
liability of PSO for damages to RMC for any cause whatsoever arising out of,
or in any way related to this Agreement shall in no event exceed the
compensation actually paid by RMC to PSO.
13.4. A party to this Agreement will not be liable to the
other party or to any other person for any damages whatsoever which result
from
13.4.1. use of the Software by the other party;
13.4.2. the specifications or instructions given by the one to
the other with regard to the preparation of the Software;
13.4.3. the failure of the Software to be compatible with
software or hardware (except as provided in the specifications
for the Software), or to be compatible with any future software
or hardware upgrades; or
13.4.4. the negligence of the other party or any of its
employees, agents, or contractors, or of any other third party.
14. Assignment; Successors and Assigns
14.1. Except as otherwise provided herein, neither party shall
have the right to assign this Agreement or any rights or obligations hereunder
without the prior written consent of the other. However, RMC may subcontract
with others to provide services in connection with its services hereunder.
14.2. This Agreement, subject to the prohibition against
assignment contained herein, shall inure to the benefit of and be binding upon
the parties hereto, their respective successors and assigns.
15. Waiver of Noncompliance
15.1. Failure by either of the parties to insist on strict
performance or to exercise a right when entitled, does not prevent that party
from doing so at a later time, either in relation to that default or any
subsequent one.
16. Choice of Law; Miscellaneous
16.1. This Agreement shall be interpreted and in force
pursuant to the laws of the State of Oklahoma. In the event either party
retains legal counsel to enforce any of the provisions of this Agreement, the
party against whom judgment is rendered shall pay all reasonable expenses,
costs and attorneys fees incurred by the other party.
16.2. This Agreement and the schedules attached hereto
constitute the entire Agreement between the parties and supersede any and all
agreements, whether written or oral, and this Agreement may be altered,
amended or modified only in a writing executed by the parties hereto.
16.3. All notices required or given under this Agreement shall
be in writing and shall be deemed given (i) when received, if personally
delivered; (ii) the day after it is sent, if sent by a recognized expedited
delivery service with next-day delivery requested; or (iii) five days after it
is sent, if mailed, postage prepaid, via certified mail, return receipt
requested. In each case, notice shall be sent to:
If to PSO: Public Service Company of Oklahoma
000 Xxxx 0xx Xxxxxx
Xxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxx
If to RMC: Xxxxxxx X. Xxxxx
00000 Xxxxx Xxxxxx
Xxxxx, XX 00000
or such other addresses as such party shall have specified by notice in
writing to the other party.
16.4. The headings contained herein are for the purpose of
convenience only and shall not be considered in interpreting this Agreement.
16.5. If any term, covenant, condition or provision of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provision hereof shall remain, at PSO's option,
in full force and effect and shall in no way be affected, impaired or
invalidated.
16.6. The officers who execute this Agreement on behalf of the
parties hereto hereby certify that they have been duly authorized by their
respective boards of directors to execute this Agreement by and on behalf of
the corporation.
16.7. All employees, agents or contractors of RMC will be
subject to all of PSO's occupational, safety, health and workplace rules and
procedures while at any PSO workplace or other facility.
IN WITNESS WHEREOF the parties hereto have caused this
Agreement to be executed effective as of the date above first written.
PUBLIC SERVICE COMPANY OF OKLAHOMA
By:________________________________
Title:_____________________________
RIKA MANAGEMENT COMPANY, LLC
By:________________________________
Title:_____________________________
SCHEDULES TO AGREEMENT
Schedule 1: SOFTWARE SPECIFICATIONS
Schedule 2: PROJECT DIRECTOR
Schedule 3: SUPPORT AND MAINTENANCE
SCHEDULE 1
SOFTWARE SPECIFICATIONS AND SCHEDULES
DATED: ___________________, 199_.
PUBLIC SERVICE COMPANY OF OKLAHOMA
By:________________________________
Title:_____________________________
RIKA MANAGEMENT COMPANY, LLC
By:________________________________
Title:_____________________________
SCHEDULE 2
PSO'S DESIGNATED PROJECT MANAGER
________________________________
Name
________________________________
Mailing Address
________________________________
City, State Zip
________________________________
Phone
________________________________
Fax
DATED: ___________________, 199_.
PUBLIC SERVICE COMPANY OF OKLAHOMA
By:________________________________
Title:_____________________________
RIKA MANAGEMENT COMPANY, LLC
By:________________________________
Title:_____________________________
SCHEDULE 3
SOFTWARE MAINTENANCE
The maintenance services which RMC is to furnish for the
Software shall consist of the services listed below as well as any other
Software maintenance services which RMC furnishes to users of software similar
to the Software:
A) On-site or telephone consultation relative to the use and
trouble-shooting of the Software.
B) Notification of PSO of the existence of coding errors, bugs
and other problems in the Software promptly after the same
first become known to RMC.
C) Use of best efforts to correct any coding errors, bugs and
other problems in the Software brought to RMC's attention by
PSO or any other source.
D) Delivery to PSO's technical contacts of any and all
releases, fixes, corrections and changes, including without
limitation those relating to program code and documentation,
reflecting corrective action taken by RMC.
E) Furnishing of new releases, updates or version s developed
by RMC including any Windows, Windows NT or OS/2 versions to
improve the efficiency, reliability or function of existing
Software commands and features (such releases, updates and
versions shall be furnished by RMC to PSO as soon as they first
become available for distribution, but PSO may, at its option,
elect to accept or reject any new releases, updates or versions
which may already affect PSO's use of the Software or result in
added cost to PSO); provided however, that RMC shall only be
responsible for maintaining new releases of the Software.
F) On-site or telephone consultation relative to the
installation and use of corrected Software and new releases,
updates and versions.
Software maintenance services may be furnished by sending PSO's
technical contacts a diskette, tape or other suitable media containing each
correction, release, update or version, along with accompanying written
instructions for implementation and then current applicable documentation;
provided, however, that if the Software maintenance services require the
presence of a software specialist of RMC at the installation site, such on-
site service shall be furnished by RMC at no additional charge to PSO.
All maintenance services and other services furnished by RMC
shall be performed by properly qualified RMC personnel in an orderly and
professional manner with a view towards minimizing any interruption of PSO's
normal business operations. PSO agrees to furnish RMC with available test
runs and other data which might assist RMC in the location and correction of
coding errors, bugs and other problems in the Software reported by PSO.
RMC shall furnish PSO with a point of contact to enable PSO to
notify RMC of the need for Software maintenance services. After receipt of a
request for Software maintenance services, during the service period specified
above, RMC shall use its best efforts to commence performance of such services
within twelve (12) hours and shall work diligently to resolve problems
reported by PSO. PSO shall furnish RMC with reasonable assistance in
connection with RMC's performance of Software maintenance services hereunder.
PSO shall pay any additional Software maintenance costs caused
by the fault or negligence of PSO or by the modification of the Software by
PSO unless such modification is furnished or approved of in writing by RMC.
RMC shall not unreasonably withhold nor delay its approval for any
modification to the Software desired by PSO.
RMC shall furnish PSO with the maintenance services at the
then-standard fees after the Warranty Period for the Software. The fee for
such maintenance services is set forth hereinbelow, and RMC shall not increase
the fee for such maintenance services in any renewal term by a percentage
amount in excess of ten percent (10%) of the previous years' maintenance fee.
In no event shall the maintenance service fees exceed the then prevailing
fee(s) charged by RMC to any other PSOs for performance of similar services.
If at any time during the initial maintenance term or any
renewal term RMC is unable to correct any coding errors, bugs or other
problems in the Software which adversely affect PSO's use of the software, RMC
shall notify PSO thereof and PSO shall have the right to terminate maintenance
by giving ten (10) days written notice of termination to RMC. Promptly after
the date of such termination, RMC shall refund to PSO a prorata amount of the
maintenance charge paid by PSO for any unexpired portion of the then current
maintenance term.
Following the expiration of the specified warranty period, RMC
shall furnish PSO with the maintenance services described herein for an
initial term of one (1) year. After the initial one (1) year maintenance
term, maintenance shall renew automatically for additional one (1) year terms
unless PSO terminates maintenance by giving RMC thirty (30) days written
notice of termination prior to the end of the initial maintenance term or any
renewal term. Not more than ninety (90), nor less than sixty (60) days, prior
to the end of the initial maintenance term and any renewal term, RMC shall
notify PSO of the date on which maintenance will renew automatically. Unless
terminated by PSO and except as otherwise provided herein, RMC shall furnish
maintenance services hereunder for not less than five (5) years after the
commencement of such maintenance services and from year to year thereafter for
as long as RMC furnishes maintenance services for software substantially
similar to the Software.
