Exhibit 10.7
SERVICE AGREEMENT NO 200.504
This SERVICE AGREEMENT, made as of November 26, l990, by and between
International Business Machines Corporation, a corporation of the State of New
York, having an office at 00000 Xxxxxx Xxxx, Xxxxxx, Xxxxx 00000 (hereinafter
referred to as IBM), and Pencom Software Inc., a corporation of New York, having
an office at 0000 Xxxxxxx xx Xxxxx Xxx. Xxxxx, Xxxxxx, XX 00000 (hereinafter
referred to as Contractor).
1.0 SCOPE OF WORK
1.1 Contractor will furnish skill requirements for technical support to IBM,
as more fully set forth in Appendix A (which is attached and made a part
of this Agreement) and in accordance with the terms and conditions on the
face and reverse of purchase orders issued from time to time by IBM and
accepted by Contractor. Such purchase orders shall constitute the
only authorization for Contractor to take any action or expend any money
for services hereunder. Contractor's services may include collaboration
with and assistance to IBM personnel and/or others retained by IBM. In the
event of any conflict between the terms and conditions of this Agreement
and those of purchase orders issued hereunder, the terms and conditions
of this Agreement shall prevail.
"Subsidiary" shall mean a corporation, company of other entity:
more than fifty percent (50%) of whose outstanding shares or securities
(representing the right to vote for the election of directors or other
managing authority) are; or
which does not have. outstanding shares or securities, as may be the case
in a partnership, joint venture or unincorporated association, but more
than fifty percent (50%) of whose ownership interest (representing the
right to make the decisions for such corporation, company or other entity)
is;
now or hereafter, owned or controlled, directly or indirectly by a party hereto,
but such corporation, company or other entity shall be deemed to be Subsidiary
only so long as such ownership or control exists.
1.2 IBM shall appoint a coordinator for each purchase order issued by IBM
under this Agreement. Such coordinator shall be responsible for
maintaining technical liaison with Contractor's supervisor and for
determining for IBM the adequacy, acceptability and fitness of the
services performed by the Contractor under such purchase orders.
1.3 When work is done on IBM's premises, Contractor shall at all times provide
supervisory personnel acceptable to IBM to provide on-premises supervision
and control of Contractor's personnel who are working on such premises.
The Contractor will inform IBM of the name of the supervisor responsible
for the work. The supervisor shall have authority to act as agent for the
Contractor in his absence.
2.0 PAYMENT
2.1 IBM will pay Contractor for services under this Agreement in accordance
with rates specified in purchase orders issued hereunder by IBM or with
rates specified in the attached rate schedule.
3.0 RECORDS
3.1 Contractor shall maintain complete and accurate accounting records, in a
form in accordance with generally accepted accounting principles to
substantiate Contractor's charges hereunder. Such records shall include
payroll records, job cards, attendance cards and job summaries, and the
Contractor shall retain such records for a one year period from the date
of termination of this Agreement.
IBM shall have access to such records for purposes of audit during normal
business hours during the term of this Agreement and during the respective
periods in which Contractor is required to maintain such records as herein
provided.
4.0 CONFIDENTIAL INFORMATION
4.1 "Confidential Information" shall mean that information: 1) disclosed to or
obtained by Contractor in connection with, and during the term of, this
Agreement; and 2) which relates to past, present and future research,
development and business activities of IBM or its Subsidiaries. It shall
also mean all items prepared for and submitted to IBM in connection with
work performed under this Agreement, including drafts and associated
materials. The term "Confidential Information" shall not mean any
information which is previously known to Contractor without obligation of
confidence, is publicly disclosed by IBM either prior
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or subsequent to Contractor's receipt of such information, or is
rightfully received by Contractor from a third party without obligation of
confidence.
4.2 For a period of three years from the date of disclosure or receipt,
Contractor agrees to hold all such Confidential Information in trust and
confidence for IBM; and not to use such Confidential Information other
than for the benefit of IBM, or make copies of such Confidential
Information without the permission of IBM. Except as may be authorized by
IBM in writing, Contractor agrees not to disclose any such Confidential
Information, for such period of time, by publication or otherwise, to any
person other than those persons whose services Contractor requires who
have a need to know such Confidential Information for purposes of carrying
out the terms of this Agreement, and who agree in writing to be bound by,
and comply with, the provisions of this Section 4.
4.3 Upon termination or expiration of this Agreement, Contractor will return
to IBM all written or descriptive matter, including, but not limited to,
drawings, blueprints, descriptions, or other papers, documents, tapes, or
any other media which contain any such Confidential Information. In the
event of a loss of any item containing such Confidential Information,
Contractor shall promptly notify IBM in writing.
5.0 RIGHTS IN DATA
5.1 All of the items prepared for and submitted to IBM by Contractor under
this Agreement shall belong exclusively to IBM and shall be deemed to be
works made for hire. To the extent that any such items may not, by
operation of law, be works made for hire, Contractor hereby assigns to IBM
the ownership of copyright in such items and IBM shall have the right to
obtain and hold in its own name copyrights, registrations and similar
protection which may be available in such items. Contractor agrees to give
IBM or its designees all assistance reasonably required to perfect such
rights.
5.2 To the extent that any preexisting materials of Contractor are contained
in such items, Contractor grants to IBM an irrevocable, nonexclusive,
worldwide, royalty-free license to: 1) use, execute, reproduce, display,
perform, distribute (internally or externally) copies of, and prepare
derivative works based upon, such preexisting materials and derivative
works thereof, and, 2) authorize others to do any, some or all of the
foregoing.
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5.3 No license or right is granted to Contractor either expressly or by
implication, estoppel or otherwise to publish, reproduce, prepare
derivative works based upon, distribute copies of, publicly display, or
perform, any of such items, except preexisting materials of Contractor,
either during or after the term of this Agreement.
6.0 WARRANTIES
6.1 Contractor represents and warrants that it is under no obligation or
restriction, nor will it assume any such obligation or restriction, which
would in any way interfere or be inconsistent with, or present a conflict
of interest concerning, the services to be furnished by Contractor under
this Agreement.
6.2 Contractor represents and warrants the originality of the items prepared
for and submitted to IBM under this Agreement and that no portion of such
items, or their use or distribution violates or is protected by any
copyright or similar right of any third party.
6.3 In providing services under this Agreement, Contractor understands that
IBM does not wish to receive from Contractor any information which may be
considered confidential and/or proprietary to Contractor and/or to any
third party. Contractor represents and warrants that any information
disclosed by Contractor to IBM is not confidential and/or proprietary to
Contractor and/or to any third party.
7.0 INVENTIONS
7.1 'Invention' shall mean any idea, design, concept, technique, invention,
discovery or improvement, whether or not patentable, made, solely or
jointly by Contractor, and/or Contractor's employees, or jointly by
Contractor and/or Contractor's employees with one or more employees of IBM
during the term of this Agreement and in the performance of services
hereunder, provided that either the conception or reduction to practice
occurs during the term of this Agreement and in the performance of
services hereunder.
8.0 INVENTION RIGHTS
8.1 Contractor shall promptly make a complete written disclosure to IBM of
each Invention, specifically pointing out the features or concepts which
Contractor believes to be new or different.
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8.2 Contractor hereby assigns to IBM, its successors and assigns, any said
Invention together with the right to seek protection by obtaining patent
rights therefor and to claim all rights of priority thereunder, and the
same shall become and remain IBM's property whether or not such protection
is sought.
8.3 Contractor shall, upon IBM's request and at IBM's expense, cause patent
applications to be filed thereon, through solicitors designated by IBM,
and forthwith assign all such applications to IBM, its successors and
assigns. Contractor shall give IBM and its solicitors all reasonable
assistance in connection with the preparation and prosecution of any such
patent applications and shall cause to be executed all such assignments
and other instruments and documents as IBM may consider necessary or
appropriate to carry out the intent of this Section.
8.4 To the extent that IBM has the right to do so, IBM hereby grants to
Contractor an irrevocable, nonexclusive, non-transferable and fully
paid-up license throughout the world under any said Inventions assigned to
IBM pursuant to this Section 8, and under any patents throughout the world
issuing thereon, including reissues, extensions, divisions and
continuations thereof; provided, however, that such license is not
applicable to any Inventions, patent applications or patents relating to
appearance designs.
8.5 Nothing contained in this Agreement shall be deemed to grant either
directly or by implication, estoppel, or otherwise, any license under any
patents or patent applications arising out of any other inventions of
either party.
9.0 CONTRACTOR'S AGREEMENT WITH EMPLOYEES
9.1 Contractor will have an appropriate agreement with each of its employees
and all others whose services Contractor may secure to perform hereunder,
sufficient to enable it to comply with all of the terms of this Agreement.
10.0 CONTRACTOR'S EMPLOYEES NOT DEEMED IBM'S
10.1 Contractor agrees to take appropriate preventive steps before the
assignment of any of its employees to perform work under this Agreement,
that it reasonably believes will ensure that its employees and its
subcontractors' employees at any level, will not engage in inappropriate
conduct while on IBM premises.
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Inappropriate conduct shall include, but is not limited to: being under
the influence of or affected by alcohol, illegal drugs, or controlled
substances; the manufacture use, distribution, sale or possession of
alcohol, illegal drugs or any controlled substance, except for approved
medical purposes; the possession of a weapon of any sort; and/or
harassment, threats or violent behavior. Violation of this provision may
result in termination of this Agreement and any other remedy available to
IBM at law or in equity.
10.2 Personnel supplied by Contractor are employees of Contractor and will not
for any purpose be considered employees or agents of IBM. Contractor
assumes full responsibility for the actions of such personnel while
performing services pursuant to purchase order(s) issued hereunder, and
shall be solely responsible for their supervision, daily direction and
control, payment of salary (including withholding of income taxes and
social security), worker's compensation, disability benefits and the like.
10.3 Contractor agrees to provide IBM any information about Contractor's
personnel that IBM is required by law to obtain, including information on
"leased employees" and "management services organizations," as these terms
are discussed in Sections 414 (m), (n) and (o) of the U.S. Internal
Revenue Code.
11.0 FORMER DEPARTMENT OF DEFENSE EMPLOYEES
Contractor warrants that no individual who is a former officer or employee
of Department of Defense (DoD), who:
1) left DoD service on or after April 16, 1987; and
2) served in a civilian position for which the rate of pay is equal to
or greater than the minimum rate of pay for grade GS-13; or served
in the Armed Forces in a pay grade of 4 or higher,
shall be employed or compensated for services rendered under this
Agreement within two years after they left service in DoD, without
specific written approval of IBM. If Contractor requests such approval,
Contractor agrees to provide IBM with any information needed to comply
with 10 USC 2397 b and c.
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12.0 TERM, TERMINATION AND CANCELLATION
12.1 This Agreement shall commence on December 3, 1990, and shall expire on
December 2, 1991.
12.2 Contractor or IBM may terminate this Agreement at any time upon 30 days'
prior written notice to the other party. Any outstanding purchase orders
shall terminate upon termination of this Agreement.
12.3 IBM may, at its sole discretion, request that Contractor remove any
specified employee(s) of Contractor from IBM's premises, and that they not
be reassigned to any IBM premises under this Agreement. No reason is
required for such request. Contractor hereby agrees to take action
immediately to remove such specified employee(s), and to see that such
reassignment does not occur.
12.4 Purchase orders issued pursuant to this Agreement, or portions thereof,
covering services of Contractor's personnel to be performed on or off IBM
premises, may be so cancelled on 30 days, written notice, without further
liability to Contractor by IBM.
12.5 In the event of cancellation, termination or expiration of any purchase
order issued hereunder, all work being performed thereunder in
Contractor's possession shall be forwarded to IBM, and IBM shall make
payment at the specified rates for satisfactory services performed to the
effective date of cancellation, termination or expiration of such purchase
order.
13.0 COMPLIANCE WITH LAWS
13.1 There are incorporated into this Agreement the provisions of Executive
Order 11246 (as amended) of the President of the United States on Equal
Employment Opportunity and the rules and regulations issued pursuant
thereto. Contractor represents that Contractor will comply with this order
and pertinent rules and regulations, unless exempted.
13.2 Contractor represents that in the performance of this Agreement,
Contractor shall comply with all of the applicable provisions of the Fair
Labor Standards Act of 1938 of the United States, as amended.
13.3 Contractor agrees to comply and do all things necessary to meet the
requirements of the Occupational Safety and Health Act of 1970. Contractor
agrees to promptly
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notify IBM in writing if a charge of noncompliance with the Act has been
filed against it in connection with the services being provided hereunder.
13.4 Contractor agrees to comply, and do all the things necessary for IBM to
comply, with all applicable Federal, State and local laws, regulations and
ordinances, including, but not limited to, the Foreign Corrupt Practices
Act; the Immigration Reform and Control Act of 1986, as amended; and the
Regulations of the United States Department of Commerce relating to the
Export of Technical Data; insofar as they relate to the services to be
performed under this Agreement. Contractor agrees to obtain all required
government documents and approvals prior to export of any technical data
disclosed to Contractor or the direct product related thereto.
13.5 Contractor represents that it is not subject, either directly or
indirectly (by affiliation or any other connection with another party), to
any order issued by any agency of the United States Government revoking or
denying, in whole or in part, the Contractor's United States export
privileges. Contractor agrees to notify IBM immediately in the event
Contractor becomes subject to any such order.
14.0 ILLEGAL ALIENS
14.1 The Contractor shall establish appropriate procedures and controls so that
services under this Agreement will not be performed by using any alien who
is not legally eligible for such employment under United States
immigration laws.
15.0 FORMER IBM EMPLOYEES
15.1 Contractor shall inform IBM when Contractor plans to assign a former IBM
employee to perform work under this Agreement, whether or not on IBM
premises. IBM reserves the right to approve or disapprove the assignment.
15.2 Nothing contained in this Agreement shall be construed as granting to
Contractor or any employee of Contractor any other or additional rights
under any IBM employee benefit plan or otherwise, than may now exist under
the IBM Retirement Plan by reason of Contractor's or such employees' prior
status as a retired employee of IBM.
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16.0 GENERAL PROVISIONS
16.1 The rights and obligations of Sections 3.0, 4.0, 5.0, 6.0, 8.0, 13.0 and
20.0 shall survive and continue after any expiration or termination of
this Agreement and shall bind the parties and their legal representatives,
successors, heirs and assigns.
16.2 Contractor agrees that neither Contractor nor any of its agents or
employees will export or re-export any information of IBM, nor any
process, product or service that is produced as a result of the use of
such information, to any country specified in such Export Regulations as a
prohibited destination, without first obtaining U.S. Government approval,
by application through IBM. Upon request, IBM will advise Contractor of
the countries then specified in such Regulations as prohibited
destinations.
16.3 Neither party shall assign any of its rights (except rights to the payment
of money) or delegate any of its obligations under this Agreement to any
third party without the express written consent of the other. Any act in
derogation of the foregoing shall be null and void.
16.4 This Agreement incorporates by reference the IBM Austin Contractor Safety
Guide dated October 4, 1989, the terms of which are set forth in Appendix
B (which is attached and made a part of this Agreement). In the event of
any conflict between or among the terms of the IBM Austin Contractor
Safety Guide and Paragraphs 1 through 21, the terms of Paragraph 1 through
21 of this Agreement shall control.
17.0 SOLE AGREEMENT
17.1 This Agreement together with its attachments shall supersede all prior
agreements and understandings between the parties respecting the subject
matter thereof. This Agreement may not be changed or terminated orally by
or on behalf of either party.
18.0 INDEMNIFICATION
18.01 Contractor agrees to indemnify and save IBM harmless from and against any
and all claims of any kind including, but not limited to, personal injury
or death to persons or damage to property, arising out of, in connection
with, or resulting from Contractor's performance under this Agreement, to
the extent caused
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in whole or in part by Contractor, or any subcontractors, or by anyone
directly or indirectly employed by Contractor.
19.0 LIMITATION OF LIABILITY
19.1 Neither party shall be liable for any lost revenue, lost profits, or other
consequential damages under any part of this Agreement, even if advised of
the possibility of such damages. Furthermore, IBM shall not be liable for
any delays, losses or any other damages which may result from the
furnishing of any equipment, documentation, programs or services under
this Agreement, even if advised of the possibility of such damages.
19.2 Contractor shall secure and maintain adequate worker's compensation
insurance in accordance with the law of the state or states wherein
Contractor shall perform services for IBM. Contractor further agrees to
maintain comprehensive general and vehicular liability insurance for
claims for damages because of bodily injury (including death) and property
damage, caused by or arising out of acts or omission of its employees. The
minimum limits of such insurance shall be $100,000.00 for each person and
$300,000.00 for each accident because of bodily injury, and $100,000.00
because of property damage for each accident. Certificates of such
insurance shall be furnished to IBM at the commencement of this Agreement
and at the renewal date or dates of all such insurance policies for as
long as this Agreement remains in effect. In no event shall any such
insurance be cancelled without prior written notice to IBM by Contractor's
insurance carrier.
20.0 IBM TRADEMARK
20.1 Notwithstanding any other provisions of this Agreement, Contractor shall
have no right to use IBM's trademark, or trade name, or to refer to this
Agreement or the services performed hereunder, directly or indirectly, in
connection with any product, service, promotion or publication without the
prior written approval of IBM.
21.0 APPLICABLE LAW
21.1 This Agreement shall be construed, and the legal relations between the
parties hereto shall be determined in accordance with the law of the State
of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives as of the day and year first
above written.
INTERNATIONAL BUSINESS PENCOM SOFTWARE, INC.
MACHINES CORPORATION
BY: /s/ X. Xxxxxxxx BY: /s/ X. Xxxxxx
TITLE: Procurement Manager TITLE: President
DATE: 11-30-90 DATE: 12/3/90
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APPENDIX "A"
SCOPE OF WORK
Provide skill requirements for technical support on IBM premises to IBM's
Advanced Workstations Division Customer Technical Support Center as follows:
1. Be responsible for answering questions from IBM customers and
vendors that the marketing level 1 and level 2 support centers
cannot answer.
2. Develop tips and techniques or course material for IBM marketing
technical support centers or porting center.
3. Assist IBM customers and vendors in difficult porting, performance
tuning or customer environment situations.
Skill requirements require excellent UNIX and C skills with the ability to read
code, specific knowledge of AIX, provide very good customer interaction skills
and a desire to work with problems/solutions rather than developing a new code.
Contractor shall provide a time based report on all projects being performed by
its employees under this agreement. These reports shall contain the time worked
on specific projects, coded to these projects. These reports shall be issued on
a weekly basis, followed by a monthly summary report. This reporting frequency
shall be in effect through the end of March, 1991. Thereafter, a reporting
procedure shall be negotiated and implemented for The period after March, 1991.
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Service Agreement # 200.504
Attachment 1
IBM Vendor Certificate of Originality
This questionnaire must be completed by the Vendor furnishing a software
material (program product or offering and related documentation, or other
software material) for IBM reproduction and marketing, and must be sent to the
IBM product manager. The acceptance of this questionnaire by IBM is a necessary
condition precedent for the IBM final payment for the furnished material.
One questionnaire can cover one complete product, even if that product includes
multiple modules. However, a separate questionnaire must be completed for code
and another for its related documentation (if any).
Please leave no question blank. Write "not applicable" or "N/A" if a question is
not relevant to the furnished software material.
----------
1. Name of the software material (provide complete identification, including
version, release, and modification numbers for programs and
documentation):
The only software provided will be software created in connection with
Pencom's technical support role.
2. Was the software material or any portion thereof written by any party than
you, _____ or your employees working within their job assignment?
YES _____ NO x
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If YES, provide the following information:
A) Indicate if the whole software material or only a portion thereof was
written by such party, and identify such portion:
n/a
B) Specify for each involved party:
i) Name: ______________________________________________________________
ii) Address: ___________________________________________________________
iii) If the party is a Company, how did it acquire title to the software
material (e.g. software material was written by company's employees
as part of their job assignment)?
n/a
iv) If the party is an individual, did he/she create the software
material while employed by or under contractual relationship with
another party?
YES _____ NO _____
If YES, provide name and address of the other party and explain the nature
of the obligations:
n/a
3. What copyright notice(s) do you wish to have included in the software
material when published by IBM?
n/a
4. Was the software material or any portion thereof derived from any of their
party's preexisting material(s)?
YES ______ NO X
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If YES, provide the following information for each of the preexisting
materials:
A) Name of the materials: n/a
B) Owner:
C) How did you get the right to use the preexisting material(s)? n/a
5. Identify below, or in an attachment, any other circumstances which might
affect IBM's ability to reproduce and market this software product,
including:
A) Confidentiality or trade secrecy of preexisting material(s) n/a
B) Known or possible royalty obligations to others: n/a
C) Preexisting materials developed for another party or customer
(including government) where you may not have retained full rights
to the material: n/a
D) Materials acquired from a person or company possibly having no title
to them: n/a
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E) Other Circumstances:
n/a
Vendor Name: Pencom Software Inc.
Address: 0000 Xxxxxxx xx Xxxxx Xxx, X
Xxxxxx, Xxxxx 00000
Signer Name and Title: Xxxxxx X. Xxxxxx
-------------------------------------
President
Signature: /s/ X. Xxxxxx
-------------------------------------
Date: December 3, 0000
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Xxxxxxxxxx 2
November 30, 1990
Pencom Software, Inc.
0000 Xxxxxxx xx Xxxxx Xxx X. # 000
Xxxxxx, XX 00000
SUBJECT: Service Agreement #200.504
Dear Xxxxxx Xxxxxx:
In furnishing you with AT&T Information Systems' UNIX* or UNIX derivative source
code, International Business Machines Corporation (hereinafter referred to as
IBM) has been requested by AT&T Information Systems (hereinafter referred to as
AT&T) to obtain your Agreement to the following:
1. Any claim, demand, or right of action arising on behalf of Pencom
Software, Inc. (hereinafter referred to as Vendor) from access to or use
of the UNIX or UNIX derivative source code shall be solely against IBM.
2. Vendor agrees that it shall hold the UNIX or UNIX derivative source code
in confidence for AT&T and IBM. Vendor further agrees that it shall not
make any disclosure of any or all of the UNIX or UNIX derivative source
code to anyone, except to employees of Vendor or IBM to whom such
disclosure is necessary to the use for which rights are granted hereunder.
Vendor shall appropriately notify each employee to whom any such
disclosure is made that such disclosure is made in confidence and shall be
kept in confidence by such employee. If information relating to the UNIX
or UNIX derivative source code at any time becomes available without
restrictions to the general public by acts not attributable to Vendor or
its employees, Vendor's obligations under this Section shall not apply to
such information after such time.
3. All UNIX or UNIX derivative Source Code may be used only in conjunction
with a machine which has the appropriate source code license furnished by
AT&T. The only copies permitted to be made are those for back-up purposes
in conjunction with that machine. If Vendor wishes to transfer the source
code to another machine, IBM must be notified and have AT&T's approval to
transfer such source code, prior to the transfer of the source code. The
source code must be removed from the previously licensed machine upon
transfer of the license to the newly licensed machine.
*UNIX is a registered trademark of AT&T.
4. Vendor, upon completion of work for IBM relating to the UNIX or UNIX
derivative source code shall return all copies of the UNIX or UNIX
derivative source code to IBM and shall erase any such software form any
storage elements or apparatus.
5. The obligations of Vendor and its respective employees under this
Agreement shall survive and continue after termination of any other
Agreements between Vendor and IBM.
This Agreement is effective December 3, 1990.
If the above terms and conditions are acceptable to Vendor, an authorized
representative is requested to indicate acceptance thereof by signing and
returning two (2) copies of this Agreement, as instructed herein, and retaining
one (1) copy for file.
Return one (1) copy to: IBM Corporation
Software Contracts Procurement
AOD/983/Zip 2202
00000 Xxxxxx Xxxx
Xxxxxx, XX 00000
Attention: May Cherry
Return one (1) copy to: IBM Corporation
Zip 1109
00000 Xxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Very truly yours, Accepted and Agreed to:
INTERNATIONAL BUSINESS _________________________________
MACHINES CORPORATION
By: /s/ Caricari By: /s/ X. Xxxxxx
--------------------------- -----------------------------
Title: Procurement Manager Title: President
Date: 11-30-90 Date: December 3, 1990
Date: November 30, 1990
ATTACHMENT 3
Pencom Software, Inc
0000 Xxxxxxx xx XX, Xxx X. #000
Xxxxxx, XX 00000
SUBJECT: SERVICE AGREEMENT #200.504
Dear, Xxxxxx Xxxxxx
International Business Machines Corporation (hereinafter called IBM) may wish to
obtain quotations from and to issue to Pencom Software, Inc. (hereinafter called
Developer) IBM Purchase Orders and to execute with Developer associated
agreements for various materials, services or software programs from time to
time. In connection therewith, it may be necessary for IBM to disclose to
Developer confidential information of IBM.
As a basis for such dealing, Developer is required to enter into this Agreement
having the following terms and conditions.
1. IBM may disclose IBM Confidential Information to Developer either orally
or in writing (including graphic material). When disclosed in writing, or
other tangible form, the information will be labeled "IBM Confidential".
When disclosed orally, such information will be identified as "IBM
Confidential" at the time of disclosure with subsequent confirmation in
writing referencing the date and type of information disclosed. Developer
agrees to clearly label as "IBM Confidential" all information reduced to
writing by Developer as a result of such oral disclosures.
IBM's disclosure of Confidential Information may include disclosure(s) of
third Party source code (hereinafter called Third Party Source Code).
Third Party and/or IBM Source Code shall be labeled as such in addition to
being labeled as and deemed to be IBM Confidential Information as set
forth above.
2. Developer shall hold in trust and confidence all IBM Confidential
Information including Third Party Source Code and shall not disclose such
information to any third party. Furthermore, Developer shall not use such
IBM Confidential Information for any purpose other than to prepare a
response to any IBM Request For Quotation or to perform work for IBM as
may subsequently be ordered. Developer shall not disclose or use such
information for any purpose other than those stated above until such time
as the information becomes publicly know through no fault of Developer.
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3. Except for the specific purposes contemplated by this Agreement, it is to
be understood that by disclosing IBM Confidential Information to
Developer, IBM and any Third Party do not grant any express or implied
license or other right to Developer under patents, copyrights or other
proprietary rights of IBM or the Third Party.
4. IBM Confidential Information shall also include all information identified
as confidential and disclosed by IBM to Developer which pertains to IBM's
past, present or future research, development or business activities.
5. Developer shall not disclose IBM Confidential Information to
subcontractors nor subcontract any part or the work covered by Purchase
Orders issued by IBM without first obtaining written consent from IBM.
6. Developer's obligations regarding IBM Confidential Information shall not
apply to information which was already know to Developer prior to
disclosure of it to Developer by IBM which is or becomes publicly
available through no fault of Developer's, which is rightfully received by
Developer from third parties without accompanying secrecy obligations,
which is independently developed by Developer or which is approved in
writing by IBM for Developer to release.
7. Developer shall disclose IBM'S Confidential Information only to
Developer's employees having a need-to-know and shall segregate such
information at all times from the materials of third parties so as to
prevent any commingling.
8. Developer shall maintain a written agreement with each of Developer's
employees sufficient to enable Developer to comply with the terms of this
Agreement.
9. Developer shall secure IBM documents, items of work in process, work
products, and any other items that embody IBM Confidential Information in
locked files or areas providing restricted access to prevent its
unauthorized disclosure.
10. Developer shall maintain adequate procedures to prevent loss of any
materials containing IBM Confidential Information. In the event of any
loss, Developer shall notify IBM immediately.
11. Developer agrees to maintain on hundred percent (100%) accountability of
material and equipment consigned to Developer by IBM and will promptly
notify IBM of loss or damage of any items consigned.
12. Developer shall return to IBM Confidential Information upon request.
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13. IBM does not wish to receive confidential information of Developer or
any third party and IBM will be free to reproduce, distribute to third
parties, and otherwise use any information furnished to IBM by Developer.
Any information provided to IBM shall not be deemed confidential.
14. This Agreement shall begin on December 3, 1990 and terminate on December
2, 1991 provided, however, that either party shall have the right to
terminate this Agreement upon ten (10) days prior written notice.
15. The provisions of this Agreement shall service and continue after
expiration or termination of the Agreement with respect to any IBM
Confidential Information disclosed to or obtained by Developer prior to
the date of such expiration or termination or disclosed to or obtained by
Developer subsequent thereto under any Purchase Orders in effect on such
date or expiration or termination.
16. This Agreement shall be construed and the legal relations between the
parties hereto shall be determined, in accordance with the substantive law
of the State of New York.
17. IBM shall have the right to visit periodically, using reasonable business
practices, Developer's premises and conduct a review of the compliance
with the terms of this Agreement -
18. Upon execution of this Agreement, Developer shall promptly notify IBM in
writing of Developer's authorized representative who will coordinate the
receipt and maintenance of all IBM Confidential Information sent to
Developer. Developer shall promptly notify IBM in writing of any change of
such authorized representatives.
-3-
If the above terms and conditions are acceptable to Developer, an authorized
representative is requested to indicate acceptance thereof by signing and
returning two (2) copies of this Agreement, as instructed herein, and retaining
one (1) copy for file.
Return one (1) copy to: IBM Corporation
Software Contracts Procurement
AOD/983/Zip 2202
00000 Xxxxxx Xxxx
Xxxxxx, XX 00000
Attention: May Cherry
Return One (1) copy to: IBM Corporation
Zip 1109
00000 Xxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Very truly yours, Accepted and Agreed to:
INTERNATIONAL BUSINESS --------------------------------
MACHINES CORPORATION
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
---------------------------- ----------------------------
Title: Procurement Manager Title: President
Date: 11-30-90 Date: December 3, 0000
-0-
XXXXXXXXXX III
NON-CONFIDENTIAL GENERAL DESCRIPTION
OF IBM CONFIDENTIAL IMFORMATION
TO BE DISCLOSED TO TECHNICAL COORDINATOR
AIX Versons 3, 2, and 4 release plans.
[LETTERHEAD OF IBM]
November 18, 1991
Xx. Xxxxxx X. Xxxxxx
Pencom Software, Inc.
0000 Xxxxxxx xx Xxxxx Xxx. Xxxxx
Xxxxxx, Xxxxx 00000
Dear Ed:
Service Agreement #200.504, dated November 26, 1990, is now being renewed.
There are no changes to the previous agreement pertaining to any terms and
conditions except the dates stated on Page 7. The dates of November 26, 1991
through November 25, 1992 will now apply.
If you agree with this change, please sign both copies and return one copy to
me.
If you have any questions, please contact me at phone number (000) 000-0000.
INTERNATIONAL BUSINESS
MACHINES CORPORATION PENCOM SOFTWARE, INC.
NAME: Xxxx X. Xxxxxx NAME: Xx Xxxxxx
TITLE: Procurement Contracts TITLE: President
Administrator
DATE: 11/18/91 DATE: 11/20/91
SIGNATURE: /s/ Xxxx X. Xxxxxx SIGNATURE: /s/ Xx Xxxxxx
-------------------- ------------------------
[LETTERHEAD OF IBM]
October 29, 1992
Pencom Software, Inc.
0000 Xxxxxxx xx Xxxxx Xxx Xxxxx
Xxxxxx, XX 00000
Dear Sir:
Service Agreement Number 200.504, dated November 26, 1990, is now being renewed.
There are no changes to the previous agreement pertaining to any terms and
conditions except the dates stated on Page 7. The dates of November 26, 1992
through November 25, 1993 will now apply.
If you agree with this change, please sign both copies and return one copy to
me.
If you have any questions, please contact me at phone number (000) 000-0000.
INTERNATIONAL BUSINESS
MACHINES CORPORATION PENCOM SOFTWARE, INC.
NAME: Xxxx X. Xxxxxx NAME: Xxxx X. Xxxxx
TITLE: Procurement Contracts TITLE: President
Administrator
DATE: 10/29/92 DATE: November 17, 1992
SIGNATURE: /s/ Xxxx X. Xxxxxx SIGNATURE: /s/ Xxxx X. Xxxxx
November 2, 1992 Attachment 2
Pencom Software, Inc.
0000 Xxxxxxx xx Xxxxx Xxx. X. #000
Xxxxxx, Xxxxx 00000
SUBJECT: SERVICE AGREEMENT NUMBER 200.504
Dear Sir:
International Business Machines Corporation (hereinafter called IBM) may wish to
obtain quotations from and to issue to Pencom Software, Inc. (hereinafter called
Developer) IBM Purchase Orders and to execute with Developer associated
agreements for various materials, services or software programs from time to
time. In connection therewith, it may be necessary for IBM to disclose to
Developer confidential information of IBM.
As a basis for such dealings, Developer is required to enter into this Agreement
having the following terms and conditions.
1. IBM may disclose IBM Confidential Information to Developer either orally
or in writing (including graphic material). When disclosed in writing, or
other tangible form, the information will be labeled "IBM Confidential".
When disclosed orally, such information will be identified as "IBM
Confidential" at the time of disclosure with subsequent confirmation in
writing referencing the date and type of information disclosed. Developer
agrees to clearly label as "IBM Confidential" all information reduced to
writing by Developer as a result of such oral disclosures.
IBM's disclosure of Confidential Information may include disclosure(s) of
third Party source code (hereinafter called Third Party Source Code).
Third Party and/or IBM Source Code shall be labeled as such in addition to
being labeled as and deemed to be IBM Confidential Information as set
forth above.
2. Developer shall hold in trust and confidence all IBM Confidential
Information including Third Party Source Code and shall not disclose such
information to any third party. Furthermore, Developer shall not use such
IBM Confidential Information for any purpose other than to prepare a
response to any IBM Request For Quotation or to perform work for IBM as
may subsequently be ordered. Developer shall not disclose or use such
information for any purpose other than those stated above until such time
as the information becomes publicly known through no fault of Developer.
3. Except for the specific purposes contemplated by this Agreement, it is to
be understood that by disclosing IBM Confidential Information to
Developer, IBM and any Third Party do not grant any express or implied
license or other right to Developer under patents, copyrights or other
proprietary rights of IBM or the Third Party.
4. IBM Confidential Information shall also include all information identified
as confidential and disclosed by IBM to Developer which pertains to IBM's
past, present or future research, development or business activities.
5. Developer shall not disclose IBM Confidential Information to
subcontractors nor subcontract any part of the work covered by Purchase
Orders issued by IBM without first obtaining written consent from IBM.
6. Developer's obligations regarding IBM Confidential Information shall not
apply to information which was already known to Developer prior to
disclosure of it to Developer by IBM which is or becomes publicly
available through no fault of Developer's, which is rightfully received by
Developer from third parties without accompanying secrecy obligations,
which is independently developed by Developer or which is approved in
writing by IBM for Developer to release.
7. Developer shall disclose IBM's Confidential Information only to
Developer's employees having a need-to-know and shall segregate such
information at all times from the materials of third parties so as to
prevent any commingling.
8. Developer shall maintain a written agreement with each of Developer's
employees sufficient to enable Developer to comply with the terms of this
Agreement.
9. Developer shall secure IBM documents, items of work in process, work
products, and any other items that embody IBM Confidential Information in
locked files or areas providing restricted access to prevent its
unauthorized disclosure.
10. Developer shall maintain adequate procedures to prevent loss of any
materials containing IBM Confidential Information. In the event of any
loss, Developer shall notify IBM immediately.
11. Developer agrees to maintain one hundred percent (100%) accountability of
material and equipment consigned to Developer by IBM and will promptly
notify IBM of loss or damage of any items consigned.
12. Developer shall return to IBM all IBM Confidential Information upon
request.
13. IBM does not wish to receive confidential information of Developer or any
third party and IBM will be free to
reproduce, distribute to third parties, and otherwise use any information
furnished to IBM by Developer. Any information provided to IBM shall not
be deemed confidential.
14. This Agreement is effective upon execution.
15. The provisions of this Agreement shall survive and continue after
expiration or termination of the Agreement with respect to any IBM
Confidential Information disclosed to or obtained by Developer prior to
the date of such expiration or termination or disclosed to or obtained by
Developer subsequent thereto under any Purchase Orders in effect on such
date or expiration or termination.
16. This Agreement shall be construed and the legal relations between the
parties hereto shall be determined, in accordance with the substantive law
of the State of New York.
17. IBM shall have the right to visit periodically, using reasonable business
practices, Developer's premises and conduct a review of the compliance
with the terms of this Agreement.
18. Upon execution of this Agreement, Developer shall promptly notify IBM in
writing of Developer's authorized representative who will coordinate the
receipt and maintenance of all IBM Confidential Information sent to
Developer. Developer shall promptly notify IBM in writing of any change or
such authorized representatives.
If the above terms and conditions are acceptable to Developer, an authorized
representative is requested to indicate acceptance thereof by signing and
returning two (2) copies of this Agreement, as instructed herein, and retaining
one (1) copy for file.
Return one (1) copy to: IBM Corporation
Software Contracts Procurement
AOD/808/Zip 3001
00000 Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: May Cherry
Return one (1) copy to: IBM Corporation
00000 Xxxxxx Xxxx
Internal Zip 1109
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxx
Very truly yours, Accepted and Agreed to:
INTERNATIONAL BUSINESS PENCOM SOFTWARE, INC.
MACHINES CORPORATION
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxx
----------------------------- -------------------------------
Xxxx X. Xxxxxx
Title: Procurement Administrator Title: President
-------------------------- ----------------------------
Date: 11/4/92 Date: 11/20/92
--------------------------- -----------------------------
[LETTERHEAD OF IBM]
November 17, 1993
Pencom Systems Incorporated
000 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Dear Sir:
Service Agreement Number 200.504, dated November 26, 1990, is now being renewed.
There are no changes to the previous agreement pertaining to any terms and
conditions except the dates stated on Page 7. The dates of November 26, 1993
through November 25, 1994 will now apply.
If you agree with this change, please sign both copies and return one copy to
me.
If you have any questions, please contact me at phone number (000) 000-0000.
INTERNATIONAL BUSINESS PENCOM SOFTWARE, INC.
MACHINES CORPORATION
NAME: Xxxx Xxxxxx NAME: /s/ Xxxx X. Xxxxx
----------------------------- -------------------------------
TITLE: Sr. Procurement TITLE: President
Administrator
---------------------------- ------------------------------
DATE: 11/17/93 DATE: November 24, 1993
----------------------------- -------------------------------
SIGNATURE: /s/ Xxxx X. Xxxxxx SIGNATURE: Xxxx X. Xxxxx
------------------------ --------------------------
[LETTERHEAD OF IBM]
February 17, 1995
Pencom Systems
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sir:
Service Agreement Number 200.504, dated November 26, 1990, is now being amended
as follows:
Amend Section 4.1 to include "All third party confidential information provided
by Contractor to IBM should be considered IBM Confidential if it contains either
an IBM Confidential legend or a proprietary legend of the third party.
Contractor shall be obligated to comply with additional usage restrictions and
confidentiality protection requirements IBM provides Contractor from time to
time".
If you agree with this change, please sign both copies and return one copy to
me.
If you have any questions, please contact me at phone number (000) 000-0000.
INTERNATIONAL BUSINESS PENCOM SYSTEMS, INC.
MACHINES CORPORATION
NAME: Xxxx Xxxxxx NAME: /s/ Xxxx X. Xxxxx
------------------------------ -------------------------------
TITLE: Sr. Procurement Administrator TITLE: President
----------------------------- ------------------------------
DATE: 2/17/95 Date: 2/21/95
------------------------------ -------------------------------
SIGNATURE: /s/ Xxxx X. Xxxxxx SIGNATURE: /s/ Xxxx X. Xxxxx
------------------------- --------------------------
[LETTERHEAD OF IBM]
April 20, 1995
Pencom Systems
000 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Dear Sir:
Service Agreement Number 200.504, dated November 26, 1990, is now being amended
as follows:
Amend Section 4.1 to include "All third Party confidential information provided
by IBM to Contractor should be considered IBM Confidential if it contains either
an IBM Confidential legend or a proprietary legend of the third party.
Contractor shall be obligated to comply with additional usage restrictions and
confidentially protection requirements IBM provides Contractor form time to
time."
If you agree with this change, please sign both copies and return one copy to
me.
If you have any questions, please contact me at phone number (000) 000-0000.
INTERNATIONAL BUSINESS PENCOM SOFTWARE, INC.
MACHINES CORPORATION
NAME: Xxxx Xxxxxx NAME: /s/ Xxxx X. Xxxxx
------------------------------ -------------------------------
TITLE: Sr. Procurement Administrator TITLE: President
----------------------------- ------------------------------
DATE: 4/21/95 Date: 4/27/95
------------------------------ -------------------------------
SIGNATURE: /s/ Xxxx X. Xxxxxx SIGNATURE: /s/ Xxxx X. Xxxxx
------------------------- --------------------------
[LETTERHEAD OF IBM]
December 11, 1995
Pencom Systems, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sir,
Service Agreement # 200.504, dated November 26, 1990, is now being renewed.
There are no changes to the previous agreement pertaining to any terms and
conditions except the dates stated on Page 7. The dates of January 1, 1996
through December 31, 1996 will now apply.
If you agree with this change, please sign both copies and return one copy to
me.
If you have any questions, please contact me at phone number (000) 000-0000.
INTERNATIONAL BUSINESS PENCOM SYSTEMS, INC.
MACHINES CORPORATION
NAME: Xxxx Xxxxxx NAME: /s/ Xxxx X. Xxxxx
------------------------------ -------------------------------
TITLE: Advisory Contracts TITLE: President
----------------------------- ------------------------------
Administrator
-----------------------------
DATE: 12/11/95 Date: 12/14/95
------------------------------ -------------------------------
SIGNATURE: /s/ Xxxx X. Xxxxxx SIGNATURE: /s/ Xxxx X. Xxxxx
------------------------- --------------------------
