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Exhibit 10.3
CONFIDENTIAL TREATMENT REQUESTED - REDACTED
MARKETING AND PRODUCT DEVELOPMENT AGREEMENT
This Agreement (the "Agreement") is made and entered into as of the 4th
day of August, 1997 by and between ICARUS Corporation, a Maryland corporation
("ICARUS"), whose principal office is located at I Central Plaza, 00000
Xxxxxxxxx Xxxx, Xxxxxxxxx Xxxxxxxx 00000, and SRI Consulting, Inc., a California
corporation ("SRIC"), whose principal office is located at 000 Xxxxxxxxxx Xxxxx
Xxxx, Xxxxxxxxxx 00000 XXX.
WITNESSETH:
WHEREAS, ICARUS is the provider of preeminent commercial
process/project evaluation software and over its 28-year market presence has
developed a reputation and software technology that is used by hundreds of
companies in over 35 countries;
WHEREAS, SRIC is one of the leading providers of process economics
information for the chemical and energy industry;
WHEREAS, the parties desire to jointly develop and market a new suite
of products that will build upon the knowledge base of SRIC's Process Economics
Program (PEP) and ICARUS' expertise in project engineering, cost estimating, and
scheduling of engineering and construction;
WHEREAS, the parties also desire to jointly market each other's
existing products to the extent described in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, conditions,
and obligations hereinafter set forth, SRIC and ICARUS agree as follows:
1. DEFINITION OF TERMS
FOR PURPOSES OF THIS AGREEMENT, THE FOLLOWING TERMS SHALL HAVE
THE MEANINGS
indicated:
a. "CATEGORIES OF INFORMATION" means the conceptual groupings
of information and data which may include supporting documentation in electronic
or hard copy format. Categories of Information include, but are not limited to,
process data, graphical representations, comparative economic results, technical
specifications, visualization aids, cost summaries, and detailed data. The
detailed data will contain information relating to a particular process such as
but not limited to the process description, process design, plot plan, equipment
arrangement, equipment costs and lists, bulk material and associated field
manpower listings, offsites, basic engineering, detailed engineering,
procurement, and home office work products, drawing lists, and effort hours,
engineering and construction schedules, operating costs, and maintenance costs.
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b. "ICARUS" means ICARUS Corporation.
c. "ICARUS MARKETING CHANNELS" means the ICARUS direct sales and
marketing force, ICARUS' affiliates, and ICARUS' worldwide network of dealers,
distributors, sales agents, and business partners, as the same may be determined
or altered by ICARUS from time to time.
d. "ICARUS MARKS" means the names "ICARUS" and "ICARUS 2000" as well as
the logo or logos set forth on Exhibit A used in any form or format, style or
design, as well as any goodwill and rights, at common law or otherwise,
pertinent thereto, and refers to trademarks, service marks, and trade names.
e. "ICARUS PROCESS EVALUATOR" and/or "IPE" means a system of computer
programs trademarked by ICARUS and/or its affiliates and associated
documentation, firmware, technology and know-how owned and/or licensed by ICARUS
for use in determining the capital cost, operating costs, and financial
information for a processing facility in the chemical processing, energy
producing, petrochemical, pharmaceutical, food, pulp and paper, ore
beneficiation and related industries.
f. "ICARUS 2000" means a system of computer programs trademarked by
ICARUS and associated documentation, firmware, technology and know-how owned
and/or licensed by ICARUS for use in preliminary design and estimating in the
construction of facilities in the chemical processing, energy producing,
petrochemical, pharmaceutical, food, pulp and paper, ore beneficiation and
related industries.
g. "ICARUS TECHNOLOGY" means the proprietary computer software owned
and/or licensed by ICARUS relating to the equipment selection, equipment sizing,
cost estimating, scheduling, project management, CAE, CAD, expert systems,
expert systems development, knowledge bases, object database, knowledge based
and object database driven graphics, and their associated data, information, and
know-how, including but not limited to ICARUS Process Evaluator (IPE), and
ICARUS 2000, together with all modifications, enhancements, upgrades thereof, or
new products or technology made or developed from time to time.
h. "INTELLECTUAL PROPERTY RIGHTS" means all copyrights (including,
without limitation, the exclusive right to use, make recordings of, reproduce,
modify, adapt, edit, enhance, maintain, support, market, sell, rent, sell for
rental, sublicense, distribute copies of, publicly and privately display and
publicly and privately perform, exploit, exhibit, the copyrighted work and to
prepare derivative works), patent rights, trade secrets, trademarks, service
marks, moral rights, author's rights, contract and licensing rights, and other
intellectual property rights, as may exist now and/or hereafter come into
existence, and all renewals and extensions thereof, regardless of
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whether any of such rights arise under the laws of the United States or any
other state, country or jurisdiction.
i. "JOINTLY DEVELOPED PRODUCT" means a software end product that is
developed by SRIC and ICARUS and that contains portions of the PEP Knowledge
Base or other SRIC Technology and portions of ICARUS Technology and that is
marketed by the SRIC Marketing Channels and the ICARUS Marketing Channels.
j. "JOINTLY DEVELOPED MARKS" means any trademarks, service marks, trade
names and logos used in any form or format, style or design, as well as any
goodwill and rights, at common law or otherwise, pertinent thereto, created or
developed by SRIC and ICARUS in connection with the marketing and distribution
of the Jointly Developed Products. "Jointly Developed Marks" shall not include
the ICARUS Marks or the SRIC Marks.
k. "PEP KNOWLEDGE BASE" means the process engineering information,
data, and know-how owned and/or licensed by SRIC relating to the Process
Economics Program (PEP).
1. "PROPRIETARY INFORMATION" means all confidential or proprietary
information of one party disclosed to the other, either orally or in writing,
including but not limited to software, technology, documentation, data, source
code, methods, procedures, program functionality, know-how, trade secrets,
copyrights, patents, discoveries, inventions, techniques, processes, algorithms,
designs, schematics, contracts, customer lists, financial information, sales and
marketing information, and other business information.
m. "SRIC" means SRI Consulting, Inc. a wholly-owned subsidiary of SRI
International.
n. "SRIC MARKETING CHANNELS" means the SRIC direct sales and marketing
force, SRIC's affiliates, and SRIC's network of distributors, sales agents, and
business partners, as the same may be determined or altered by SRIC from time to
time.
o. "SRIC MARKS" means the names "SRI Consulting," and "SRI Consulting,
a subsidiary of SRI International," as well as the logo or logos set forth on
Exhibit B used in any form or format, style or design, as well as any goodwill
and rights, at common law or otherwise, pertinent thereto, and refers to
trademarks, service marks, and trade names.
p. "SRIC TECHNOLOGY" means any proprietary intellectual property (e.g.,
software, hardware, methodologies, copyrighted materials) owned and/or licensed
by SRIC and its affiliates, including but not limited to the PEP Knowledge Base,
together with all modifications, enhancements, upgrades thereof, or new products
or technology made or developed from time to time.
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2. DURATION
a. Except as otherwise provided herein, the term of this
Agreement will commence on the date first written above and will terminate on
the fourth anniversary thereof unless extended in writing by mutual agreement of
the parties.
b. Either party may at any time, upon six months prior written
notice, terminate this Agreement prior to its scheduled expiration date if
revenues from the sale, license or other distribution of existing products and
programs of such party have declined due to the sale, license or other
distribution of the Jointly Developed Products.
c. Either party may, by written notice to the other party,
terminate this Agreement under the following conditions:
i. If the other party shall have failed to carry out any of
its obligations under this Agreement, or if any other condition arises from
default of such other party which interferes or threatens to interfere with the
successful carrying out of the activities contemplated by this Agreement. If
such condition continues for a period of fourteen days following such notice,
the party who gave such notice may, at its option, terminate this Agreement upon
thirty days written notice to the other party.
ii. If any representation or warranty made by the other
party herein was false or misleading in any material respect as of the date of
this Agreement.
iii. If the activities contemplated hereunder have been
suspended due to a "force majeure event" described in Section 2(e).
iv. If the other party files a petition in bankruptcy or is
adjudged a bankrupt, or if a petition in bankruptcy is filed against such party
(and is not dismissed within sixty (60) days thereafter), or if such party
becomes insolvent or makes an assignment for the benefit of creditors, or if
such party discontinues its business, or if a receiver is appointed for such
party or such party's business who is not discharged within sixty (60) days.
d. Upon the expiration or earlier termination of this Agreement
for any reason, each party shall be released from all obligations and
liabilities to the other occurring or arising after the date of such expiration
or termination, except as otherwise provided herein. Notwithstanding such
expiration or termination, each party shall remain liable for any breach of this
Agreement, and shall remain obligated to pay over to the other party at the
times stated in Section 8(d) its share of any and all fees, revenues, and other
amounts payable hereunder with respect to any end-user agreements entered into
on or prior to the date of expiration or termination. In addition, upon the
expiration or earlier termination of this Agreement for any
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reason, each party shall take immediate steps to terminate the activities in a
prompt and orderly manner and to reduce losses and to keep further expenditures
to a minimum.
e. Each party shall promptly notify the other party in writing
of the occurrence of any force majeure event. As used herein, "force majeure"
shall mean events attributable to any one of the following causes:
i. Natural causes, such as earthquakes, typhoons, storms,
floods, epidemics, and other similar causes affecting activities to such an
extent as makes it impossible or impracticable for either party to carry out, in
whole or in part, its obligations under this Agreement.
ii. Human causes, such as war, armed invasions, revolution,
insurrection, blockade, riot, civil disturbance, strikes, or other analogous or
similar causes, including the occurrence of a national banking moratorium, to
such an extent as makes it unsafe, impossible, or impracticable for either party
to carry out, in whole or impart, its obligations under this Agreement.
On the day of giving or receiving such notice of force
majeure, each party shall be relieved from liability for any failure to carry
out its obligations due to the occurrence of such force majeure event. If the
force majeure event continues for a period exceeding ninety days, either party
may terminate this Agreement by giving thirty days written notice to the other.
3. JOINTLY DEVELOPED PRODUCTS
a. Products. The parties hereby agree to develop and market
Jointly Developed Products to provide specific capital and operating cost
estimates to companies studying technology selection or upgrade for construction
and investment in selected product areas. Jointly Developed Products will
initially include a "Business Model" and a "Project Model." Jointly Developed
Products may also include a "PEPCOST/ICARUS Cost Estimation Program." The
following is a general description of these products:
i. Business Model: The Business Model will be a software
program that will contain several Categories of Information relating to a
particular process design. The Business Model will be an interactive multi-media
electronic document that is driven from an individual PEP process reflecting the
PEP technical content and the process estimation (capital and operating) cost
results of the ICARUS Technology. Because of the vast quantity of information to
be contained in a Business Model, the parties anticipate that the media used for
product delivery will be CD-ROM. There will also be a summary narrative that
describes the various subsets of Categories of Information referred to in the
Business Model. Examples of narratives and types of information may include
items such as Process Flow Diagrams (PFD's),
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Piping & Instrumentation Diagrams (P&ID's), Scope of Work Narratives,
Contingency Analyses, and other topics suitable for the particular process.
ii. Project Model: The Project Model will be supplied on software media
that contains the PEP-based input data for ICARUS 2000 and ICARUS Process
Evaluator (IPE) for a specific process that will enable the customer who is a
user of ICARUS 2000 and/or ICARUS Process Evaluator (IPE) to prepare certain
project information (cost estimate, schedule of engineering and construction)
for the particular process. There may also be a Project Model offering that
includes a license of ICARUS 2000.
iii. PEPCOST/ICARUS Cost Estimation Program: The parties will explore
the viability of a PEPCOST/ICARUS modified cost estimation program targeted at
serving the R&D/planning/technology development cost estimation needs of both
operating companies and E&Cs. The parties anticipate that this product will
essentially provide the PEPCOST level of detail and presentation in a mode
compatible with more powerful, more detailed versions of some ICARUS software
(e.g., IPE, Icarus 2000). The utilities consumption estimate module of PEPCOST
is a particular feature that may be included in this cost estimation program.
b. Development Schedule. The anticipated development schedule for the
Business Model and Project Model is as follows, and is expected to begin after
this Agreement has been signed by both parties:
i. Prototype for ethyl benzene (EB): June-September 1997 alpha, beta
testing by both parties with selected potential and existing clients. The alpha
prototype will use the ICARUS 2000 run (report) based on the PEP input of design
bases and major equipment listings for Mobil/Xxxxxx XX process. The GUI screens
developed by ICARUS, augmented with an icon for production cost information,
will be used as the "front end." SRIC will provide current Mobil/Xxxxxx XX
production cost information for use in the prototype model.
ii. Additional product schedule: To be determined by September 1997.
The parties intend to develop up to 10-20 products (with multiple processes)
each six months during the term of this Agreement, subject to each party's
review and customer acceptance. SRIC will provide the PEP input of design bases
and major equipment listings for each product, and ICARUS will run the initial
cost estimations.
iii. Custom client requests: The parties will use their best efforts to
develop mechanism/pricing to handle custom client requests for evaluations.
c. Marketing. The parties agree to jointly market the Jointly Developed
Products on a worldwide basis by utilizing the ICARUS Marketing Channels and the
SRIC Marketing Channels. The parties will develop a collaborative marketing plan
to coincide with the
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initial marketing of the beta version of the first Jointly Developed Product.
The marketing plan is expected to detail sales strategy and joint marketing
activities such as press releases, trade shows, technology conferences, user
conferences, and technical articles. Subject to Section 6(h) and 7(b)(iii), the
parties will market the Jointly Developed Products under the joint names of each
party with each party's name receiving equal prominence on all packaging,
documentation and other marketing and sales materials.
4. JOINT MARKETING OF EXISTING ICARUS PRODUCTS AND SRIC'S
PEP PRODUCTS
Each party will use its reasonable efforts to identify leads
for the existing products of the other party, to be turned over to the party for
follow-up. The parties anticipate that they will jointly market each other's
products as follows:
a. Within the first month of the term of this Agreement,
each party will, subject to Section 6(h):
i. Notify its existing customer base of this
Agreement. Marketing vehicles anticipated to be used include ICARUS' newsletter
and the PEP Bulletin, a PEP Special Notice, and other ongoing market
communication lines.
ii. Reference each other in promotional
materials.
iii. Exchange customer lists. Customer lists
provided are anticipated to include the names of the current PEP Program and
ICARUS licensee contacts. The disclosure and use of each party's customer lists
will be subject to Section 9 (Confidential Information).
iv. Provide basic sets of promotional materials
to each another in electronic and print form.
b. Within the first quarter of the term of this
Agreement, each party will:
i. Provide hotlinks to the other's web pages
(ICARUS' and PEP's).
ii. Agree upon new sets of joint promotional
material referencing each other's existing products.
5. OTHER DEVELOPMENT ACTIVITIES
In addition to the marketing and development activities
described above, two additional development activities are anticipated to be
pursued under this Agreement, as follows:
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a. Reengineering of PEP Report preparation to incorporate ICARUS (or
ICARUS/PEPCOST) cost estimating procedures and Icarus' simulator or CAD links.
This development will constitute more of a "behind the scenes" operation, but is
expected to be potentially valuable to ICARUS and SRIC for insights into new
ways of working, and building an extended value network.
i. The parties expect to target 1-3 "New" reports in the
first year of this Agreement.
ii. SRIC's PEP staff will lead this development, with an
Icarus contact on the project team.
b. Joint SRIC/ICARUS development of products outside the PEP domain,
such as mines and minerals, biotechnology, and electronics. The parties will
undertake a review of such additional products at six month intervals.
Initiation will require the consent of both parties. If such products proceed to
the product development and marketing stages, the parties will amend this
Agreement accordingly.
6. PERFORMANCE OF MARKETING AND DEVELOPMENT ACTIVITIES
a. Management Committee; Contact Persons. The marketing and development
activities contemplated hereunder shall be carried out under the ultimate
direction of a management committee comprised of four to six representatives,
one-half to be designated by SRIC and one-half to be designated by ICARUS. The
management committee shall meet once per calendar quarter during the term hereof
at the principal place of business of each party (on a rotating basis. All
actions of the management committee shall be taken by unanimous vote. During the
time that the management committee is not meeting, the following individuals
shall (except as otherwise provided herein), subject to any restrictions imposed
by the management committee, have general supervisory authority and control over
the marketing and development activities contemplated hereunder:
SRIC. Primary contact: Process Economics Program Director
(Xxxx Xxxxx)
Secondary contact: Vice President, Chemicals & Energy
Group (Xxxxxx Xxxxxxxxx)
ICARUS. Primary contact: Xxxxxxx X. Xxxxxxx, President
Secondary contact: Xx. Xxxxxxx X. Xxxxxx
Either party may change such designation at any time by notice to the other
party.
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b. Staffing and Resources. The management committee will determine the
appropriate amount of staffing and other resources to be devoted to the
marketing and development activities contemplated hereunder.
c. Budget. Prior to the initiation of each Jointly Developed Product,
the management committee will prepare a budget with respect to the marketing and
promotion of such product. The budget shall set forth the expected costs and
expenses to be incurred with respect to such marketing effort. Each party shall
contribute a mutually agreed amount toward payment of such expenses. All
expenses incurred in excess of the budgeted amount shall be the sole
responsibility of the party incurring such expenses, except as otherwise agreed.
d. End-User Support. The management committee will determine the
appropriate amount of support to be provided by each party to the end-users of
the Jointly Developed Products, including documentation and training activities.
Notwithstanding the foregoing, each party shall be responsible for the
performance, maintenance, user documentation, technical documentation, and
technical support to end-users with respect to its own software modules that are
part of any Jointly Developed Product. The primary technical support for the
SRIC Technology incorporated in a Jointly Developed Product shall be directly
from SRIC to the end-user, and the primary technical support for the ICARUS
Technology incorporated in a Jointly Developed Product shall be directly from
ICARUS to the end-user. Each party shall conduct all technical support to
end-users in accordance with the standard of care described in Section 6(f)
regardless of which party completed the sale, license or other distribution.
Notwithstanding the expiration or earlier termination of this Agreement, each
party will continue to provide support to end-users as provided above to the
extent required by the applicable license agreement with the end-user.
e. Prohibition against Recruitment. Each party agrees not to directly
or indirectly recruit each other's employees during the term of this Agreement
and for a period of one year after the expiration or earlier termination of this
Agreement.
f. Standard of Care. Each party agrees to assign professionally
qualified personnel to the marketing and development of the Jointly Developed
Products and the other activities contemplated hereunder and to carry out such
activities in conformity with generally accepted professional standards. Each
party shall exercise all reasonable skill, care, and diligence in the
performance of its obligations under this Agreement. Each party will be found to
have fulfilled all contractual obligations by diligently applying its best
technical efforts to the performance thereof within the time and cost
limitations contemplated hereby. Notwithstanding the foregoing, each party's
Technology contributed for development of Jointly Developed Products shall be
deemed contributed in "As Is" condition, without warranty or representation,
with each party assuming the risk of performance or non-performance thereof.
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g. Information Sharing. Each party shall provide the other party with
copies of or access to any information and materials in such party's possession
that the other party reasonably requires to carry out the activities. The party
receiving such materials shall use them solely for the purpose of carrying out
the activities. The confidentiality provisions of this Agreement (Section 9)
shall apply to the use of such materials. Any information of a general,
conceptual nature may be retained by either party for its own use and made a
part of its research data base, subject to Section 10 (Other Activities).
h. Promotional Materials. Each party agrees that it will not use the
name of the other party, either expressed or implied, in any of its advertising
or sales promotional materials or web sites without the prior written approval
of the other party. Neither party will issue any publicity releases or other
promotional materials or create or contract for any web sites or web site links
describing the Jointly Developed Products or the other activities contemplated
by this Agreement without the prior written approval of the other party. In the
event that either party intends to distribute outside of its own organization
any brochure issued by the other party that discusses the marketing and
development activities contemplated by this Agreement, such brochure shall be
used in its entirety, unless any proposed summary or abridgment of the brochure
has first been approved by the other party in writing.
i. End-User Licensing. All end-user licensing agreements for the
Jointly Developed Products will be in such form as is mutually agreed to in
advance by each of the parties. All end user use shall be by license agreement
only unless ICARUS and SRIC agree otherwise.
j. Individual Responsibilities. The parties agree that they shall
individually be responsible for the following activities during the term hereof:
i. SRIC. SRIC agrees that it will:
(1) provide all necessary technical support information
that the parties mutually agree is needed by the
ICARUS development team in order to complete the
Jointly Developed Products;
(2) supply ICARUS with new versions of pertinent SRIC
Technology/PEP Knowledge Base as they are developed
and/or released to SRIC customers as needed by
ICARUS to develop, market, sell, maintain, and
technically support the Jointly Developed Products;
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(3) be responsible for the preparation of all input of
process information for each process selected for a
Jointly Developed Product; and
(4) promptly after execution and delivery of this
Agreement, provide ICARUS with one up-to-date copy of
each document prepared by SRIC relating to the
processes in the PEP program chosen for joint product
development so that ICARUS (x) may become familiar
with such processes that are candidates for
development of Jointly Developed Products, (y) can
prepare the necessary project engineering information
that will be incorporated in each selected process in
the Jointly Developed Products, and (z) can provide
technical support related to the Jointly Developed
Products.
ii. ICARUS. ICARUS agrees that it will:
(1) be solely responsible to develop, and make all
modifications and enhancements to, all software in
Jointly Developed Products;
(2) determine the appropriate method of copy protection
required (if any) for all Jointly Developed Products;
(3) be responsible for the duplication of all software on
all media which is part of any Jointly Developed
Product.ICARUS will have the right to duplicate media
containing SRIC Technology that is part of any
Jointly Developed Product prepared for customer sale
at no additional charge to ICARUS except as described
in Section 8; and
(4) be responsible for the preparation of all input and
output of project information including but not
limited project infrastructure, offsites, and site
development.
k. Insurance. During the term of this Agreement, each party shall, in
its individual name and at its sole cost and expense, procure and maintain in
full force and effect insurance covering the marketing and development
activities contemplated hereunder, in such amounts and
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with such deductibles as are customarily maintained by others engaged in similar
businesses. Within ten (10) days after execution and delivery of this Agreement,
each party shall furnish to the other a certificate of insurance evidencing such
coverage, and thereafter, shall furnish renewal certificates no later than
thirty (30) days after the renewal date.
1. Accounting; Financial Reporting. At all times during the term of
this Agreement, each party shall keep accurate books of account in which all
matters relating to the activities contemplated hereunder, including all license
fees, shall be entered. The books of account shall be kept on an accrual basis
and shall be open to examination by either party and its authorized
representatives at all reasonable times at each party's principal place of
business. Upon request of either party, the other party shall engage a mutually
acceptable accounting firm to perform an annual audit of such other party's
books of account insofar as they relate to the activities contemplated hereunder
(it being agreed that KPMG Peat Marwick LLP or Xxxxx Xxxxxxxx are each
acceptable). Each party agrees to provide to the other party (at such other
party's expense) all such financial information as such other party shall
reasonably require to satisfy the tax and financial reporting obligations of
such party with respect to the activities contemplated hereunder.
m. Tax Returns. Each party shall be responsible for the preparation of
its own federal, state and local income and other tax returns relating to the
activities contemplated hereunder.
7. INTELLECTUAL PROPERTY
a. Technology/Knowdge Base Ownership. The parties hereby agree that,
except as otherwise provided in this Agreement:
i. SRIC will continue to have exclusive rights of ownership,
licensing, and marketing of the PEP Knowledge Base and SRIC Technology
contributed to the Jointly Developed Products, including such technology
contributed or developed by SRIC pursuant to section 6j (i) hereof.
ii. ICARUS will continue to have exclusive rights of ownership,
licensing, and marketing of ICARUS Technology contributed to the Jointly
Developed Products, including such technology contributed or developed by ICARUS
pursuant to Section 6j (ii) hereof.
iii. Except as otherwise specified in this Agreement, neither party
will have any rights to use any Intellectual Property Rights (including but not
limited to the SRIC Marks and the ICARUS Marks) or Technology owned and/or
licensed by the other party.
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b. Licensing of Technology and Marks.
i. During the term of this Agreement, SRIC hereby grants to ICARUS
a nonexclusive (subject to Section 10), royalty-free, worldwide license to use
the SRIC Technology in the development, production, marketing, sale, license and
other distribution of the Jointly Developed Products, and ICARUS hereby grants
to SRIC a nonexclusive (subject to Section l0), royalty-free, worldwide license
to use the ICARUS Technology in the development, production, marketing, sale,
license and other distribution of the Jointly Developed Products. Said license
shall not be sublicenseable and shall not be transferable except in connection
with an assignment or transfer of this Agreement made in accordance with Section
l5(f).
ii. Notwithstanding Section 7(a), ICARUS shall license a two (2)
user system of ICARUS 2000 Windows NT software to SRIC at no charge to SRIC
during the term of this Agreement so that SRIC can prepare input to ICARUS 2000
for the jointly selected processes that SRIC and ICARUS will be marketing in the
Jointly Developed Products. ICARUS further agrees to license other ICARUS
products to SRIC as required for joint product development under a license
agreement that is mutually agreeable.
iii. During the term of this Agreement, SRIC hereby grants to
ICARUS a nonexclusive, royalty-free, worldwide license to use the SRIC Marks,
solely for uses related to the marketing and distribution of the Jointly
Developed Products and solely if used as set forth in Section 3(c) and as
follows: "SRI" and the "SRI logos" (or a variation thereof) shall be used only
with the words "Consulting" or "SRI Consulting." During the term of this
Agreement, ICARUS hereby grants to SRIC a nonexclusive, royalty-free, worldwide
license to use the ICARUS Marks, solely for uses related to the marketing and
distribution of the Jointly Developed Products and solely if used as set forth
in Section 3(c) and as follows: XXXXXX, XXXXXX 0000, XXXXXX 0000 XX, and ICARUS
Process Evaluator.
c. [*] The parties agree to cooperate with each other in applying for,
and in executing any, applications and/or assignments reasonably necessary to
protect such Intellectual Property Rights (including but not limited to the
Jointly Developed Marks), the cost and expense of which shall be borne equally.
Each party agrees to refrain from using or filing any application(s) to
register, in any class and in any country, the Jointly Developed Marks without
the prior written approval of the other party. Except as provided in the next
sentence, during the term hereof and for a period ending two (2) years after its
expiration or earlier termination, each party agrees not to sell, license or
otherwise market or
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[*] This information has been omitted pursuant to a request for
confidential treatment.
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distribute the jointly owned rights or its interest therein without the prior
written consent of the other party. Upon the expiration or earlier termination
of this Agreement for any reason, the parties shall endeavor to enter into a
license agreement pursuant to which one party shall license the Jointly
Developed Products and the Jointly Developed Marks to the other at an agreed
upon royalty.
8. PRICING; FEES AND REVENUE SHARING
a. Jointly Developed Products. The pricing for the
Jointly Developed Products and the fee and revenue sharing arrangement shall be
as follows:
i. Pricing. The price schedule for
each Jointly Developed Product will be determined by mutual agreement of the
parties after completion of the beta testing phase and prior to additional
product development. It is the intent of the parties that each Jointly Developed
Product be priced to represent value in the marketplace with respect to the
inherent process and project technology represented in such Jointly Developed
Product and the calendar time and effort hours saved by use of the Jointly
Developed Product by the customer.
ii. Fees and Revenue Sharing. The price
schedule, marketing fees and revenue sharing between SRIC and ICARUS will be
determined for each Jointly Developed Product [*]. Notwithstanding the
foregoing, the parties have already agreed that the marketing fee for Business
Model and Project Model will be [*] of the product price or license fee [*] of
product development and [*] years. The parties further anticipate that each
party will receive [*] of the revenue from each Jointly Developed Product sale,
license and/or other distribution [*] will be payable to the party who [*],
license or other distribution of a Jointly Developed Product.
b. Existing Products. The parties will be entitled to
marketing fees on completed sales or licensing of existing SRIC PEP Products or
ICARUS Products as follows:
i. [*] given by one party to the other that
result in business for the other party will entitle the originating party to
payment of a [*] on the [*] base product price for an [*] or the [*] of an [*].
ii. [*] If one party receives a [*] for an [*]
approved by [*] or an [*] for an [*] approved by [*] or product payment for the
products [*], the party [*] or [*] will be [*] to
--------------------
[*] This information has been omitted pursuant to a request for
confidential treatment.
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[*] on the [*] for an [*] or the [*] for an [*] in lieu of the [*] described in
subsection 8(i) above. Neither party will be entitled to [*] on [*] from [*] of
[*] products, nor will either party be entitled to marketing fees based on
revenues [*] of the other party [*].
iii. Review of Sales Targets. For the initial six months of
the term of this Agreement, ICARUS' Director of Sales and SRIC's PEP Program
Director will review quarterly targets for sales contact to avoid customer
misunderstandings or complaints. Review of sales targets will continue by mutual
agreement of the parties for the remainder of this Agreement.
c. Other Development Activities. Prior to the commencement of
other development activities, the parties will amend this Agreement to set forth
the fee and revenue sharing arrangements applicable thereto.
d. Reconciliation and Payment. The party who completes the sale,
license or other distribution of a Jointly Developed Product shall be
responsible for billing and collection of the royalty, license fees or other
payments from the end-user. Regardless of which party completes the sale,
license or other distribution of a SRIC PEP Product or ICARUS Product, the party
whose product it is shall be responsible for billing and collection of the
royalty or other payments from the end-user. Sales and license agreements will
be reviewed quarterly (January 31, April 30, July 31, and October 31) by ICARUS'
Director of Sales and SRIC's PEP Program Director for accuracy of claims. Each
party will provide a calculation of the marketing fees and other amounts due the
other party hereunder on a quarterly basis (January 31, April 30, July 31,
October 31) and pay the calculated amount due within 30 days of the quarter end.
Except as to manifest errors brought to the attention of the other party within
thirty (30) days after its rendition, each such calculation shall be final and
conclusive as to each party, as to the items therein set forth (but not as to
any omissions). Any amounts not paid when due shall incur interest at the rate
of eighteen percent (18%) per annum (or the maximum rate permitted by law,
whichever is less).
e. Costs and Expenses; Taxes. Except as provided in Section 6(c), each
party will be responsible for payment of its own costs and expenses related to
the research, development, production, marketing, and sale of the Jointly
Developed Products and the existing products, and all other costs, charges,
taxes and expenses incurred with respect to the Jointly Developed Products, the
existing products, and the other activities contemplated by this Agreement.
Without limiting the foregoing, each party will be responsible for the payment
to governmental authority of any income, capital or franchise taxes imposed on
such party with respect to the activities contemplated by this Agreement that
are based on or measured by its net income, gross receipts or net worth.
--------------------
[*] This information has been omitted pursuant to a request for
confidential treatment.
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9. CONFIDENTIAL INFORMATION
a. The parties recognize and agree that the disclosure of some
Proprietary Information is necessary for the carrying out of the activities
contemplated by this Agreement. Therefore, the parties agree that during the
term of this Agreement, and for a period of two (2) years after its expiration
or earlier termination, each party shall maintain the confidentiality of any
Proprietary Information disclosed to it. Neither party shall use the other
party's Proprietary Information for any purpose except in connection with the
activities contemplated by this Agreement. Neither party will disclose or make
accessible to any person or business entity of any type any Proprietary
Information that was disclosed by one party to the other unless required to do
so by judicial or administrative process (provided that the recipient shall
promptly notify the discloser and shall allow the discloser a reasonable time to
oppose such process before making disclosure). The parties agree that access to
any disclosed Proprietary Information will be limited to employees or
subcontractors who have a need to know such Proprietary Information for the
purpose of carrying out the terms of this Agreement and who have agreed in
writing to receive it under terms at least as restrictive as those contained
herein. The parties further agree that any Proprietary Information will be
safeguarded by the recipient with the same degree of care it would use for its
own proprietary or confidential information. Each party will immediately notify
the other of any unauthorized use or disclosure of the Proprietary Information
and will assist the other in remedying such unauthorized use or disclosure.
b. Each party agrees that a breach by that party of this
Section 9 will cause irreparable damage to the other party for which the
recovery of monetary damages would be inadequate, and therefore specifically
agrees that such other party is entitled to obtain temporary, preliminary, and
permanent injunctive relief to protect its rights hereunder, in addition to any
and all other remedies available at law or equity.
c. This section shall not apply to information: (i) that is or
becomes available to the public other than by breach of this Agreement; (ii)
that is rightfully received by the recipient from a third party without
confidentiality limitations; (iii) that the recipient can demonstrate by clear
and convincing evidence was independently developed by the recipient's employees
or subcontractors without access to the Proprietary Information; or (iv) that is
shown by written evidence to have been known by the recipient without any
restrictions as to use or disclosure prior to the disclosure of the Proprietary
Information to the recipient.
d. The Proprietary Information disclosed by one party to the
other, and any copies thereof created by the recipient, shall remain the
property of the discloser. Upon the expiration or earlier termination of this
Agreement, the recipient shall within fourteen (14) days return to the
discloser, or at the discloser's election destroy, all Proprietary Information
of the discloser, and all copies thereof, and provide a written accounting to
the discloser of such return or destruction unless retention of such information
is necessary to fulfill the discloser's obligation
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to continue to provide support to end-users pursuant to Section 6(d), in which
case the recipient shall return or destroy such information and provide such
accounting at the earliest possible time when such retention is no longer
necessary.
e. Except as otherwise provided herein, no license or
conveyance of any rights in any Proprietary Information or Intellectual Property
Rights is granted or implied by the disclosure of Proprietary Information under
this Agreement.
10. OTHER ACTIVITIES
During the term of this Agreement, (i) each party agrees not
to develop products that will directly compete with the Jointly Developed
Products, and (ii) each party agrees not to license the ICARUS Technology (in
the case of ICARUS) or the SRIC Technology (in the case of SRIC) to third
parties to use in the development, production, marketing, sale, license and
other distribution of products that will directly compete with the Jointly
Developed Products. Subject to the foregoing, each party may (i) pursue other
business opportunities that integrate its own Technology with other products and
(ii) engage in or possess an interest in other business ventures of every nature
and description, independently or with others, and neither party shall have any
right by virtue of this Agreement in or to such other business opportunities or
ventures, or in or to the income or profits derived therefrom.
11. REPRESENTATIONS AND WARRANTIES (TECHNOLOGY AND
INTELLECTUAL PROPERTY)
a. SRIC hereby represents and warrants that (i) the SRIC
Technology is original and does not and will not infringe upon the Intellectual
Property Rights of any third party and (ii) SRIC is (or with respect to
modifications, enhancements and upgrades will be) the sole and exclusive owner
or licensee of all rights in the SRIC Technology. SRIC's liability for a breach
of this representation and warranty shall be subject to the limitation of
liability contained in Section 13. EXCEPT FOR THE FOREGOING REPRESENTATION AND
WARRANTY, THE SRIC TECHNOLOGY IS PROVIDED "AS IS" AND WITHOUT ANY REPRESENTATION
OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
b. ICARUS hereby represents and warrants that (i) the ICARUS
Technology is original and does not and will infringe upon the Intellectual
Property Rights of any third party and (ii) ICARUS is (or with respect to
modifications, enhancements and upgrades will be) the sole and exclusive owner
or licensee of all rights in the ICARUS Technology. ICARUS' liability
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for a breach of this representation and warranty shall be subject to the
limitation of liability contained in Section 13. EXCEPT FOR THE FOREGOING
REPRESENTATION AND WARRANTY, THE ICARUS TECHNOLOGY IS PROVIDED "AS IS" AND
WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
12. INDEMNITIES
a. SRIC agrees at its expense to defend, indemnify and hold
harmless ICARUS, its respective officers, directors, employees, and agents
(collectively, "ICARUS Indemnitees") from and against all losses, damages,
liabilities, costs and expenses (including reasonable attorneys' fees) arising
out of any claims, suits or proceedings, whatever their nature and however
arising, that may be brought or made against any ICARUS Indemnitee (i) by reason
of SRIC's material breach, default, performance, or nonperformance of this
Agreement or by reason of SRIC's material breach of any representation or
warranty contained herein (including the representations and warranties made in
Section 1l(a)); or (ii) for any personal injury, product liability or other
claim arising from SRIC's performance under this Agreement; provided, that (i)
ICARUS notifies SRIC in writing within thirty (30) days of knowledge of the
claim; (ii) SRIC has sole control of the defense and all settlement negotiations
and the terms and conditions of any final settlement; and (iii) ICARUS provides
SRIC with the assistance, information and authority necessary to perform SRIC's
obligations under this Section. SRIC will reimburse the reasonable out-of-pocket
expenses incurred by ICARUS in providing such assistance. SRIC's LIABILITY TO
ICARUS UNDER THIS SECTION 12(a) SHALL BE SUBJECT TO THE LIMITATION OF LIABILITY
CONTAINED IN SECTION 13.
b. ICARUS agrees at its expense to defend, indemnify and hold
harmless SRIC its respective officers, directors, employees, and agents
(collectively, "SRIC Indemnitees") from and against all losses, damages,
liabilities, costs and expenses (including reasonable attorneys' fees) arising
out of any claims, suits or proceedings, whatever their nature and however
arising, that may be brought or made against any SRIC Indemnitee (i) by reason
of ICARUS' material breach, default, performance, or nonperformance of this
Agreement or by reason of ICARUS' material breach of any representation or
warranty contained herein (including the representations and warranties made in
Section 1l(b)); or (ii) for any personal injury, product liability or other
claim arising from ICARUS' performance under this Agreement; provided, that (i)
SRIC notifies ICARUS in writing within thirty (30) days of knowledge of the
claim; (ii) ICARUS has sole control of the defense and all settlement
negotiations and the terms and conditions of any final settlement; and (iii)
SRIC provides ICARUS with the assistance, information and authority necessary to
perform ICARUS' obligations under this Section. ICARUS will reimburse the
reasonable out-of-pocket expenses incurred by SRIC in providing such assistance.
ICARUS' LIABILITY TO SRIC UNDER THIS SECTION 12(b) SHALL BE SUBJECT TO THE
LIMITATION OF LIABILITY CONTAINED IN SECTION 13.
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c. The indemnity provisions contained in this Section 12 shall
survive the expiration or earlier termination of this Agreement for a period of
two (2) years thereafter.
13. LIMITATION OF LIABILITY
ANYTHING CONTAINED HEREIN TO THE CONTRARY NOTWITHSTANDING,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR INCIDENTAL, CONSEQUENTIAL, OR
SPECIAL DAMAGES, OR FOR THE LOSS OF ANTICIPATED PROFITS ARISING FROM ANY BREACH
OF THIS AGREEMENT BY SUCH PARTY (INCLUDING ANY BREACH OF ANY WARRANTY BY SUCH
PARTY), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL A PARTY'S LIABILITY TO THE OTHER FOR ANY CLAIM REGARDLESS OF
LEGAL THEORY EXCEED ONE MILLION UNITED STATES DOLLARS (US$1,000,000). THE
PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN EACH OF THE PARTIES, AND
THE FEE AND REVENUE SHARING ARRANGEMENTS CONTAINED HEREIN REFLECT THIS
ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
14. REPRESENTATIONS' WARRANTIES AND COVENANTS (GENERAL)
a. SRIC hereby makes the following representations and
warranties to, and covenants with, ICARUS, with full knowledge that ICARUS is
acting in reliance thereon in executing this Agreement and entering into and
carrying on the activities contemplated hereunder:
i. Organization. SRIC is, and during the term
of this Agreement shall, at all times, continue to be a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of California.
ii. Authority. SRIC has all requisite power
and authority to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery by SRIC of this Agreement, and the
performance by SRIC of its obligations hereunder, have been duly and validly
authorized by SRIC, and no other corporate proceedings on the part of SRIC are
necessary to authorize such execution, delivery and performance. This Agreement
has been duly executed and delivered by SRIC, and this Agreement and all
exhibits and documents executed and delivered by SRIC in connection with the
consummation of the transactions contemplated hereby, are the valid and legally
binding obligations of SRIC, enforceable against SRIC in accordance with the
terms hereof and thereof, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting creditor's rights generally and by principles of equity (whether
considered in a proceeding at law or in equity). No consent, approval or other
action by any governmental authority is required in connection with the
execution, delivery and performance by SRIC of this Agreement.
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20
iii. No Violation. The execution, delivery and
performance by SRIC of this Agreement, and the consummation of the transactions
contemplated hereby, do not and will not (i) violate, conflict with, or result
in the breach of any provision of the charter documents or by-laws of SRIC, (ii)
violate, conflict with or result in the breach of any of the terms of, result in
a material modification of, or otherwise give any other contracting party the
right to terminate, or constitute (or with notice or lapse of time, or both,
constitute) a default under, any material instrument, contract or other
agreement to which SRIC is a party or by or to which any of its assets or
properties may be bound or subject, (iii) violate any order, writ, judgment,
injunction, award or decree of any federal, state, local or foreign court,
arbitrator or governmental or regulatory body against, or binding upon, SRIC or
any of its assets or properties, (iv) violate any statute, law or regulation of
any governmental or regulatory body; or (v) result in the creation or imposition
of any lien, charge or encumbrance of any nature or description upon any of the
properties, assets or businesses of SRIC.
b. ICARUS hereby makes the following representations and
warranties to, and covenants with, SRIC, with full knowledge that SRIC is acting
in reliance thereon in executing this Agreement and entering into and carrying
on the activities contemplated hereunder:
i. Organization. ICARUS is, and during the term
of this Agreement shall, at all times, continue to be a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Maryland.
ii. Authority. ICARUS has all requisite power
and authority to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery by ICARUS of this Agreement, and the
performance by ICARUS of its obligations hereunder, have been duly and validly
authorized by ICARUS, and no other corporate proceedings on the part of ICARUS
are necessary to authorize such execution, delivery and performance. This
Agreement has been duly executed and delivered by ICARUS, and this Agreement and
all exhibits and documents executed and delivered by ICARUS in connection with
the consummation of the transactions contemplated hereby, are the valid and
legally binding obligations of ICARUS, enforceable against ICARUS in accordance
with the terms hereof and thereof, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium, or similar
laws affecting creditor's rights generally and by principles of equity (whether
considered in a proceeding at law or in equity). No consent, approval or other
action by any governmental authority is required in connection with the
execution, delivery and performance by ICARUS of this Agreement.
iii. No Violation. The execution, delivery and
performance by ICARUS of this Agreement, and the consummation of the
transactions contemplated hereby, do not and will not (i) violate, conflict
with, or result in the breach of any provision of the charter documents or
by-laws of ICARUS, (ii) violate, conflict with or result in the breach of any of
the
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terms of, result in a material modification of, or otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time, or both, constitute) a default under, any material instrument, contract
or other agreement to which ICARUS is a party or by or to which any of its
assets or properties may be bound or subject, (iii) violate any order, writ,
judgment, injunction, award or decree of any federal, state, local or foreign
court, arbitrator or governmental or regulatory body against, or binding upon,
ICARUS or any of its assets or properties, (iv) violate any statute, law or
regulation of any governmental or regulatory body; or (v) result in the creation
or imposition of any lien, charge or encumbrance of any nature or description
upon any of the properties, assets or businesses of ICARUS.
15. MISCELLANEOUS
a. Dispute Resolution.
i. The parties will attempt in good faith to
resolve through negotiation any dispute, claim or controversy arising out of or
relating-to this Agreement. Either party may initiate negotiations by providing
written notice in letter form to the other party, setting forth the subject of
the dispute and the relief requested. The recipient of such notice will respond
in writing within five days with a statement of its position on and recommended
solution to the dispute. If the dispute is not resolved by this exchange of
correspondence, then representatives of each party with full settlement
authority will meet at a mutually agreeable time and place within ten days of
the date of the initial notice in order to exchange relevant information and
perspectives, and to attempt to resolve the dispute.
ii. If the dispute is not resolved by these
negotiations, the parties agree that any and all disputes, claims or
controversies arising out of or relating to this Agreement shall be submitted to
J.A.M.S./ENDISPUTE ("JAMS"), or its successor, for non-binding mediation, and if
the matter is not resolved through mediation, then it shall be submitted to
JAMS, or its successor, for final and binding arbitration. Either party may
commence mediation by providing to JAMS and the other party a written request
for mediation, setting forth the subject of the dispute and the relief
requested. The parties will cooperate with JAMS and with one another in
selecting a mediator from JAMS's panel of neutrals, and in scheduling the
mediation proceedings. The parties covenant that they will participate in the
mediation in good faith, and that they will share equally in its costs. All
offers, promises, conduct and statements, whether oral or written, made in the
course of the mediation by any of the parties, their agents, employees, experts
and attorneys, and by the mediator or any JAMS employees, are confidential,
privileged and inadmissible for any purpose, including impeachment, in any
arbitration or other proceeding involving the parties, provided that evidence
that is otherwise admissible or discoverable shall not be rendered inadmissible
or non-discoverable as a result of its use in the mediation. Either party may
initiate arbitration with respect to the matters submitted to mediation by
filing a written demand for arbitration at any time
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following the initial mediation session or 45 days after the date of filing the
written request for mediation, whichever occurs first. The mediation may
continue after the commencement of arbitration if the parties so desire. Unless
otherwise agreed by the parties, the mediator shall be disqualified from serving
as arbitrator in the case. The provisions of this clause may be enforced by any
court of competent jurisdiction, and the party seeking enforcement shall be
entitled to an award of all costs, fees and expenses, including attorneys fees,
to be paid by the party against whom enforcement is ordered.
iii. If the dispute is not resolved by negotiations or mediation, the
parties agree that any and all disputes, claims or controversies arising out of
or relating to this Agreement shall be submitted to final and binding
arbitration before JAMS, or its successor, pursuant to the United States
Arbitration Act, 9 USC Sec. 1 et seq. in the City and County of San Francisco.
The arbitration will be conducted in accordance with the provisions of JAMS's
Streamlined Arbitration Rules and Procedures in effect at the time of filing of
the demand for arbitration. The parties will cooperate with JAMS and with one
another in selecting an arbitrator from JAMS's panel of neutrals, and in
scheduling the arbitration proceedings. The parties covenant that they will
participate in the arbitration in good faith, and that they will share equally
in its costs. The provisions of this clause may be enforced by any court of
competent jurisdiction, and the party seeking enforcement shall be entitled to
an award of all costs, fees and expenses, including attorneys' fees, to be paid
by the party against whom enforcement is ordered. Judgment upon any arbitration
award may be entered in any court having jurisdiction. Either party may bring an
action, including a summary or expedited proceeding, to compel arbitration of
any controversy or claim to which this Agreement applies in any court having
jurisdiction over such action. If JAMS or its successor is unable or legally
precluded from administering the arbitration, then the American Arbitration
Association will serve.
iv. Each party agrees to keep all disputes and arbitration proceedings
strictly confidential, except for disclosures of information required in the
ordinary course of business of the parties or by applicable law or regulation.
b. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California without regard to its
conflicts of laws principles.
c. Notice. Any notice or other communication required or desired to
be given under this Agreement shall be in writing and in the English language
and shall be personally delivered or sent by electronic mail, facsimile,
overnight courier, or certified or registered mail, postage prepaid, return
receipt requested, addressed to the intended recipient as set forth in the
preamble to this Agreement or to such other address as shall be given to the
other party in writing. Notices delivered in person shall be effective upon
receipt; notices sent by electronic mail or fax
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shall be effective upon confirmed receipt; notices sent by courier shall be
effective upon receipt; and notices sent by mail shall be effective five
business days after being deposited in the mail as provided above.
d. Severability. If a court of competent jurisdiction shall declare
that any provision of this Agreement is invalid, illegal, or incapable of being
enforced in whole or in part, the remaining conditions and provisions or
portions hereof shall nevertheless remain in full force and effect and
enforceable, and no provision shall be deemed dependent upon any other covenant
or provision unless so expressed herein.
e. Entire Agreement; Amendments. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof, and the parties
hereto have made no agreements, representations or warranties relating to the
subject matter of this Agreement that are not set forth herein. This Agreement
expressly supersedes all previous correspondence, proposals, acceptance letters,
letters of intent and memoranda of understanding whether signed or unsigned,
that relate to the subject matter hereof, including without limitation the
"Principles of Agreement for a Marketing and Product Development Agreement"
signed May 29, 1997. No amendment to or modification of this Agreement is valid
unless made in writing and signed by the parties hereto. Each party recognizes
that no inducements or promises, oral or otherwise, have been made by any party,
or anyone acting on behalf of any party, that are not embodied in this
Agreement.
f. Assignment. The rights, benefits, duties and obligations of this
Agreement shall bind and inure to the benefit of each party's respective
successors and assigns, provided that this Agreement may not be assigned or
transferred by a party without the prior written consent of the other party,
which consent shall not be unreasonably withheld.
g. Waiver. The failure of either party to insist upon strict
performance of any of the terms, conditions, and provisions of this Agreement
shall not be construed as a waiver or relinquishment of future compliance
herewith or with any other term, condition, or provision hereof, and said terms,
conditions, and provisions shall remain in full force and effect. No waiver of
any term or condition of the Agreement on the part of either party shall be
effective for ANY purpose whatsoever unless such waiver is in writing and signed
by such party and then only in the specific instance and for the specific
purpose given.
h. Headings. The headings of sections are inserted for convenience and
shall not affect any interpretation of this Agreement. All references to
Sections and Exhibits without further attribution shall be deemed to refer to
the Sections and Exhibits to this Agreement.
i. Agency Authority. Nothing contained herein shall give either party
the authority to bind the other in any transaction relating to this Agreement or
otherwise. Except as expressly contained herein, nothing in this Agreement shall
be construed as creating any agency, partnership, or other form of joint
enterprise between the parties.
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j. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be considered a part of a single, original
agreement.
k. Transaction Costs. Each party will be responsible for its own
transaction costs with respect to the preparation, execution and delivery of
this Agreement.
l. No Third-Party Rights. This Agreement shall not (directly,
indirectly, contingently or otherwise) confer or be construed as conferring any
rights or benefits on any person (other than the parties and their permitted
successors and assigns).
IN WITNESS WHEREOF, SRIC and ICARUS have caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
SRI Consulting, Inc.
By:
Its:
ICARUS Corporation
By:
Its:
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Exhibit A
The following are ICARUS Marks and Logos as of 8 July 1997.
Xxxx Status
----------------------------------------------------
ARCHES & Design Service Xxxx Reg. No. 1,088,288
CCOST Proprietary Xxxx
COST and Design Service Xxxx Reg. No. 947,465
ICARUS & Design Pending
ICARUS 2000 NT Proprietary Xxxx
ICARUS 2000 Reg. No. 1,675,542
ICARUS Manpower Productivity Expert Proprietary Xxxx
ICARUS Mentor Design Reg. No. 1,715,096
ICARUS Mentor - Trademark
ICARUS Process Evaluator Pending
ICARUS Project Manager & Design Pending
ICARUS Project Object Database Trademark
ICARUS Pending
ICUE Reporter Trademark
ICUE Trademark
Questimate Reg. No. 1,519,653
Translating Ideas into Dollars Trademark
26
Exhibit B
The following are SRIC logos protected under this agreement.
[SRI CONSULTING (logo)]
[Subsidiary of SRI International
(logo)]
In addition to the SRIC marks indicated in Section l.o, the following marks are
also protected:
Process Economics Program and its common abbreviation, PEP
PEP Bulletin
PEPCOST Cost Estimation Software Program
PEP Yearbook International
Use of other SRIC or SRI International marks and logos is outside the scope
of this Agreement.
