EXHIBIT 10.8
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MetaSolv Agreement No. Qst1003 APPEARS HERE]
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MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT
THIS SOFTWARE LICENSE AND SERVICES AGREEMENT (this "Agreement") is effective as
of this 30th day of May, 1997, ("Effective Date") by and between MetaSolv
Software, Inc. ("MetaSolv"), a Delaware corporation with principal offices at
00000 Xxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 and Qwest Communications
Corporation with principal offices at 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx 00000.
The terms of this Agreement shall apply to each Software license granted and to
all services provided by MetaSolv under this Agreement. When completed and
executed by both parties, an Order, as described below, shall evidence the
Software licenses granted and the services to be provided by MetaSolv under this
Agreement.
For the purposes of this Agreement, the defined terms set forth herein shall
apply to the respective capitalized terms and their respective singular, plural
and verb forms.
1. Definitions
a) The term "Agreement" includes this Master Software License and Services
Agreement, and any Orders accepted by MetaSolv which reference it.
b) The term "Software" shall mean the software and related documentation
owned or distributed by MetaSolv for which Customer is granted a license
under this Agreement, the user guides and manuals for use of the
Software, and updates.
c) The term "Order" shall mean a written order for MetaSolv products or
services signed by Customer, accepted by MetaSolv, and referencing this
Agreement. Customer agrees to include a reference to this Agreement, by
Agreement number, in all of its orders submitted for MetaSolv products
or services.
d) The term "Designated System" shall mean the computer hardware and
operating system designated on the relevant Order.
e) Unless otherwise specified in the Order, "User" shall mean an individual
who is authorized by Customer to use the Software on the Designated
System.
2. Software License
a) Rights Granted. MetaSolv grants to Customer a nonexclusive license to
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use the Software Customer obtains under this Agreement as follows:
i) Customer shall use the Software solely for its own internal data
processing operations on the Designated System or on a backup
system if the Designated System is inoperative, up to any
applicable maximum number of designated Users (if any User
limitations apply), or other limitation specified on the Order.
Customer may not use the Software for third-party training,
commercial timesharing, rental or service bureau use.
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ii) Customer may make up to two archival copies of the Software, for backup
or disaster recovery purposes only, which will include MetaSolv's
copyright, trademark and proprietary notices. Customer may use the
archival copy in a backup or disaster recovery situation as if it were
the original, in accordance with the licensing rights and restrictions
of this Agreement.
b) Verification.
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i) At MetaSolv's written request, not more frequently than annually,
Customer shall furnish MetaSolv with a signed certification verifying
that the Software is being used pursuant to the provisions of this
Agreement, including any User and other limitations, and listing the
locations, types and serial numbers of the systems on which the Software
is run.
ii) MetaSolv may, at its expense, audit Customer's use of the Software. Any
such audit shall be conducted during regular business hours at
Customer's facilities and shall not unreasonably interfere with
Customer's business activities. If an audit reveals that Customer has
underpaid fees to MetaSolv, Customer shall be invoiced for such
underpaid fees based on the current list price in effect at the time the
audit is completed. If the shortfall exceeds 5% of the license fees that
the Customer should have paid, Customer shall also pay MetaSolv
reasonable costs of conducting the audit. Audits shall be conducted not
more than once annually.
c) Ownership Rights. Title and ownership rights to Software, in its original
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form and any modified version, shall remain with MetaSolv and its applicable
licensors. Where modification of any licensed Software is expressly
permitted by written communication from MetaSolv, title and ownership rights
to non-MetaSolv material that Customer incorporates into a modified or
derivative version of the Software shall remain with Customer or Customer's
third-party licensor. This paragraph does not authorize modification of the
Software.
d) Rights in Data. MetaSolv may use any suggestions and improvements (other
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than those that qualify as "Proprietary Information") that Customer happens
to furnish to it in connection with this Agreement, and Customer grants
MetaSolv an unrestricted, irrevocable and royalty-free license, without
warranty of any kind, to include them in MetaSolv's product or service
offerings. Customer shall retain any ownership of such suggestions and
improvements, with an unrestricted right to use in any manner Customer's
ideas, designs, concepts, inventions, techniques, discoveries or
improvements.
e) Patent and Copyright Indemnification. MetaSolv indemnifies Customer from
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any action brought against Customer to the extent that it is based on a
claim that the Software infringes any duly issued patent or any copyright in
the United States or Canada. MetaSolv's indemnity obligations shall not
extend to (i) infringement arising out of unauthorized use of the Software,
(ii) a non-MetaSolv modification of the Software after delivery by MetaSolv,
(iii) the combination, operation, or use of the Software with non-MetaSolv
programs or data if such infringement would have been avoided by the
combination, operation or use of the Software with other programs or data.
MetaSolv shall pay all damages and costs attributable to an action and
finally awarded against Customer, provided that: MetaSolv is promptly
informed in writing of each such claim, suit or proceeding; Customer shall
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permit MetaSolv to control the defense in settlement thereof; and Customer
shall cooperate in the defense and settlement thereof. Customer shall
furnish a copy of each communication, notice or other action relating to the
alleged infringement and shall provide MetaSolv authority, information and
assistance (at MetaSolv's expense) necessary to defend or settle such claim.
If the Software becomes, or, in MetaSolv's opinion is likely to become, the
subject of a claim of infringement subject to this indemnity, then MetaSolv
may, at its option (i) procure for Customer the right to use that Software
free of any liability for infringement, (ii) replace the Software with a
non-infringing substitute complying substantially with all the requirements
of this Agreement, or (iii) refund the license fee previously paid for the
infringing Software, less a charge for the value of Customer's prior use of
the Software based upon a five (5) year depreciation schedule, and accept
return of the infringing Software. THE FOREGOING INDEMNITY OBLIGATIONS
CONSTITUTE METASOLV'S SOLE LIABILITY AND CUSTOMER'S SOLE REMEDY FOR
INFRINGEMENT OF PATENTS AND COPYRIGHTS RELATING TO THE SUBJECT MATTER OF
THIS AGREEMENT.
3. Restriction of License
a) Except as otherwise specifically authorized by this Agreement:
i) Customer shall not copy, modify, sublicense, distribute, transfer,
reverse engineer or reverse compile the Software, nor shall
Customer prepare derivative works incorporating the Software.
ii) Neither Customer nor its personnel having had access to the
Software or documentation may use it to design software with
similar or competitive functionality for distribution to third
parties, nor to distribute or deliver educational courses or
materials based on the Software or documentation to persons other
than to Customer or contractors, and then only for the purpose of
providing Software-related services to Customer.
4. License Fees & Payment
a) All fees and payments are to be made in U.S. dollars. License fees and
payment terms are determined on the Order submitted by Customer and
accepted by MetaSolv. Each Order submitted shall be subject to
applicable license fees. A finance charge of 1.5% per month (but in no
event more than the maximum allowed by law) shall be assessed on all
past-due amounts. Customer shall pay taxes arising out of Customer's
purchase and use of Software under this Agreement, which do not include
taxes based on MetaSolv's income.
5. Services
a) MetaSolv shall provide installation support and user training and other
services, only as specified on the Order. All travel expenses incurred
by MetaSolv as a result of such services shall be paid by Customer.
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6. Maintenance
a) Initial Maintenance Period. For the Initial Maintenance Period specified
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on the Order, MetaSolv shall provide Standard Maintenance Support for
the Software at no additional charge.
b) Standard Maintenance Support. After the Initial Maintenance Period, for
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as long as MetaSolv generally offers Standard Maintenance Support for
the Software to end-user licensees, Customer will automatically receive
Standard Maintenance Support in successive 12-month periods based on
MetaSolv's then current Standard Maintenance Support program. Fees for
Standard Maintenance Support are payable at the beginning of each
renewal maintenance period. Standard Maintenance Support includes:
i) One (1) copy of standard maintenance releases as generally issued
to end-user licensees under MetaSolv's Maintenance Support program
for the correction of known errors, plus improvements,
modifications and enhancements that MetaSolv incorporates into the
Software and does not market as a separate product.
ii) MetaSolv's standard telephone customer service "hot-line" support
for reporting Software errors. MetaSolv will make reasonable timely
efforts to correct errors in the Software reported in this way.
Maintenance Support at any time covers only the current release of
the Software, plus the most recent prior release for up to six
months after release of the current Software. Error correction
applies only to Software used as authorized by this Agreement and
applicable documentation, and not to Software modified by Customer.
c) Customer will designate in writing one primary Customer employee, and
two back-up employees, as its single point of contact for MetaSolv's
delivery of Standard Maintenance Support for the Software. Standard
Maintenance Support communications and deliveries between Customer and
MetaSolv shall be through the single point of contact. Customer shall be
responsible for copying, distributing and otherwise disseminating such
Standard Maintenance Support from the single point of contact throughout
Customer. Customer may change its single point of contact upon
reasonable written notice to MetaSolv.
7. Term & Termination of Agreement
a) If not otherwise specified on the Order, each Software license granted
under this Agreement shall remain in effect perpetually unless the
license or this Agreement is terminated in accordance with the
following:
i) For Cause. MetaSolv or Customer may terminate this Agreement and
any license under it at any time if, after thirty (30) days'
written notice, the other fails to correct a material breach of
this Agreement. If such a termination occurs, then in addition to
any other rights and remedies, Customer's rights to the Software
shall end, and within thirty (30) days following termination,
Customer shall either return to MetaSolv all copies of the
Software, or destroy all copies of the Software and provide to
MetaSolv written certification of this destruction.
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ii) For Convenience. Customer may terminate any license under this
Agreement for convenience at any time by delivery of written notice
and either the return of all Software copies to MetaSolv, or their
destruction with written certification of destruction delivered to
MetaSolv.
8. Confidentiality
a) While this Agreement and related licenses are in effect, MetaSolv and
Customer may disclose their proprietary and confidential information
("Proprietary Information") to each other. Each party shall clearly xxxx
such information as "Proprietary", "Confidential", or by similar label.
For example, the Software licensed to Customer includes Proprietary
Information of MetaSolv. Customer and MetaSolv each shall hold the
others' Proprietary Information in confidence, with the same degree of
care that they apply to their own Proprietary Information of like
importance, and never less than reasonable care. Neither party has any
confidentiality obligation to the other under this Agreement for any
information to the extent that it can show that the information: (i) is
previously known by it without obligation of confidence, or without
breach of this Agreement, (ii) is publicly disclosed through no wrongful
act of the disclosure, (iii) is received from a third party without
obligation of confidence and without breach of this Agreement, (iv) is
independently developed by the disclosing party without access to the
other's Proprietary Information, or (v) is approved for release by
written authorization of the owner. The foregoing confidentiality
obligation shall survive the termination of this Agreement.
9. Warranty & Liability
a) MetaSolv warrants that it has the right to grant the licenses provided
by this Agreement.
b) MetaSolv further warrants that during any Maintenance Support period,
the Software shall perform the functions described in the documentation
accompanying it, if properly used in accordance with the documentation's
instructions and specifications.
c) MetaSolv further warrants that services shall be performed in a
professional manner in accordance with standards and practices generally
observed in the industry for similar products and services.
d) During any Maintenance Period, if the warranty is breached, MetaSolv
shall take action to repair or replace defective Software, in accordance
with its Maintenance Support obligations. For services, MetaSolv will
reperform defective services, upon written notice from Customer received
not more than thirty (30) days after the defective service was
performed.
e) METASOLV MAKES NO OTHER WARRANTY FOR ANY PRODUCTS OR SERVICES UNDER THIS
AGREEMENT. THE WARRANTIES ABOVE ARE INSTEAD OF ALL OTHER WARRANTIES,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND
ANY OTHER WARRANTY OBLIGATION ON THE PART OF METASOLV OR ITS LICENSORS.
FURTHERMORE, THE STATED REMEDIES FOR BREACH OF WARRANTY ARE EXCLUSIVE,
AND METASOLV PROVIDES NO OTHERS.
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f) Except as otherwise provided for patent and copyright infringement
indemnities above, MetaSolv's maximum liability to Customer, and
Customer's remedy for any cause whatsoever, will be limited to the
recovery of actual damages up to any amounts paid by Customer with
respect to the applicable Order. METASOLV WILL NOT BE LIABLE FOR
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOSS OF DATA,
EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Arbitration of Disputes
a) Any dispute arising under this Agreement, shall be submitted to binding
arbitration, to the American Arbitration Association ("AAA") in Dallas,
Texas according to the rules and procedures of the AAA for commercial
arbitration. Unless the parties agree otherwise, there shall be a single
arbitrator selected by agreement among the parties or, if they cannot
agree, designated by the AAA. It shall be the determination of the
arbitrator as to which of the parties shall be responsible for any
attorneys' fees and costs incurred by each party as a result of the
Arbitration. The award of the arbitrator shall be final and binding upon
the parties and may be confirmed by any court having jurisdiction over
the parties and the controversy.
11. General
a) This Agreement may be assigned by Customer, but only to a controlling
parent corporation, a controlled subsidiary corporation, or affiliate
corporation under common control with Customer, in any event with
written notice by Customer to MetaSolv, and Customer's written guarantee
of the Assignee's performance.
b) Neither party shall be liable for failure to perform any material
obligation under this Agreement, if the failure is due to an event
beyond its reasonable control.
c) Each party shall comply with all applicable export control laws and
regulations concerning the Software, including but not limited to the
securing of export licenses and execution of letters of assurance as
required under such laws or regulations.
d) All notices and other communications required or permitted to be given
under this Agreement shall be in writing, by certified mail or courier
service, to the addresses given on the first page of this Agreement,
unless by such notice a different address shall have been designated,
and shall be considered effective when deposited in the U.S. mail,
postage prepaid, and addressed to the appropriate party at the address
noted above.
e) This Agreement is the entire, exclusive set of terms and conditions for
any transactions entered into under it, and may be modified only by a
written instrument duly signed by authorized representatives of both
parties. This Agreement is governed by the laws of the State of Texas.
f) In the event either party at any time terminates this Agreement as
stipulated in Paragraphs 2(c), 2(d), 3, 8, 9(e), 9(f), 10, and 11, in
their entirety, shall survive the life of this Agreement.
g) Termination of this Agreement or any license shall not relieve
Customer's obligation to pay all fees
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that have accrued or are otherwise owed by Customer under any Order or
other similar ordering document under this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective duly authorized representatives as set forth below:
MetaSolv Software, Inc. Qwest Communications Corporation
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxxxx
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(Signature) (Signature)
Xxxxxxx X. Xxxxxxx Xxxxxx Xxxxxxxx
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Typed or Printed Name Typed or Printed Name
Chief Executive Officer Senior Vice President
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Title Title
June 5, 1997 June 3, 1997
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Date Date
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