Exhibit 10.10*
SOFTWARE & METHODOLOGY LICENSING AGREEMENT
THIS SOFTWARE & METHODOLOGY LICENSING AGREEMENT, (this "Agreememt"), made and
entered by and between PSW Technologies, Inc. (hereinafter "PSW"), a Delaware
corporation with its offices at 0000 Xxxxxxx xx Xxxxx Xxxxxxx Xxxxx, Xxxxxx,
Xxxxx 00000, and LICENSEE (the scope and definition of LICENSEE as it pertains
to this Agreement is specified in Schedule2).
WITNESSETH:
WHEREAS, LICENSEE desires to license from PSW certain software and methodology
assets;
WHEREAS, PSW is willing and able to grant such rights and licenses on the terms
and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants herein contained and
intending to be legally bound, the parties hereby agree as follows:
Section 1
DEFINITION OF TERMS
The definition of terms set forth in this Section 1 shall apply in this
Agreement (in addition to expressly defined elsewhere herein) including any and
all exhibits, addenda, and amendments made to or incorporated herein now or in
the future.
1.1 "Deliverables." Any and all tangible products or assets delivered by PSW
for LICENSEE under this Agreement, including all object diagrams,
functional specifications, prototypes, reports, conversion tools, class
libraries, the "source" code and object code, and all necessary
Documentation therefor.
1.2 "Documentation." All textural material relating to the Deliverables,
including flow charts, operating instructions, and related technical
information. Documentation shall include user manuals, help text, training
materials, and sample source code used for training and documentation
purposes.
1.3 "Genova." The name of PSW's family of software and methodology assets for
custom business system development
1.4 "Genova Methodology." PSW's family of software and methodology assets for
custom business Systems using object oriented software
* Confidential treatment is requested for certain portions of Exhibit 10.10
pursuant to Rule 406 under the Securities Act of 1933.
technology. "This approach includes definition of phases, phase entry &
exit criteria, deliverables, activities, templates tips & techniques
1.5 "Genova On-Line." The reference document which specifies PSW's software
development methodology available in formats that can be viewed by
computers.
1.6 "Genova Academy." The classes taught by PSW to train software developers
and other project personnel in Genova.
1.7 "Genova Courseware." The documents, presentations, exercises, and other
tangible assets which comprise the materials used to teach the Genova
Academy classes.
1.8 "Genova Systems Library." Those Deliverables in Schedule 1 that are
specified to be part of the Genova Systems Library.
1.9 "Genova Business Library." Those Deliverables in Schedule 1 that are
specified to be part of the Genova Business Library.
1.10 "Genova Object Library." The combination of the Genova Systems Library and
the Genova Business Library.
1.11 "PSW Enhancements." Changes, corrections, modifications, or additions,
including all new releases and applications, made by PSW to the
Deliverables or related Documentation.
1.12 "LICENSEE Enhancements." Changes, corrections, modifications, or
additions, including all new releases and applications, made by LICENSEE
to the Deliverables or related Documentation.
1.13 "PSW Licensors." Other parties who have licensed portions of the
Deliverables or Documentation to PSW under Separate agreements.
1.14 "Service Bureau." An operation which directly provides the services and
benefits of Genova to parties other than Licensee. Providing services to
LICENSEE customers utilizing Systems developed with Genova is not defined
to be a Service Bureau.
1.15 "Computer Business." The Computer Business shall be defined to include the
research, development, production, marketing, selling, distribution, or
leasing of computer hardware, computer hardware peripherals, integrated
document management systems or cameras, or the performance of development,
consulting, training or maintenance services relating to computer
hardware, computer hardware peripherals, integated document management
systems or cameras.
Section 2
GRANT AND SCOPE OF LICENSE FROM PSW TO LICENSEE
2.1 Scope of Licence. PSW hereby grants to LICENSEE the right to use, execute,
modify, reproduce, and distribute for internal use the Deliverables as
specified in Schedule 1, and any PSW Enhancements which made available to
LICENSEE per this agreement. Schedule 2 specifies the extent of LICENSEE's
business as it pertains to this license. The RESELLER agreement modifies
and extends these rights.
2.2 Consideration. In consideration for the license granted in this section,
LICENSEE will pay PSW the fees specified in Schedule 1. License fees shall
be invoiced by PSW upon delivery and are payable within 30 days of receipt
of invoice.
2.3 Acceptance. The Deliverable shall be deemed accepted by Licensee upon
delivery by PSW.
2.4 Licence Restrictions. LICENSEE is not authorized to market, sell,
distribute or sub-license the Deliverables or PSW Enhancements. LICENSEE
is not authorized to operate a Service Bureau utilizing any Deliverables,
LICENSEE Enhancements of PSW Enhancements. LICENSEE may not license any
portion of the Genova Business Library unless it has signed the Genova
Business Object Library Amendment to this Agreement. The RESELLER
agreement modifies and extends these rights..
2.5 Continuing Rights. Subject to the rights granted in this Section 2, PSW
and PSW Licensors shall retain all ownership of and full rights to market
and continue to use the Deliverables and all PSW Enhancements and all
rights, title, and interest in and to all copyrights, patent rights or
trade secret rights associated with the Deliverables and PSW Enhancements.
Section 3
OTHER SERVICES AND ENHANCEMENTS
3.1 Maintenance, Technical Support, and Training. Genova is licensed as source
code that is modifiable by LICENSEE and therefore maintenance and
technical support is not provided under this Agreement. Genova Courseware
is licensable under this Agreement, but training is not provided under
this Agreement. LICENSEE is expected to maintain, provide technical
support, and conduct training for the Deliverables provided herein or
enter into a separate agreement with PSW to provide these service.
3.2 PSW Enhancements for LICENSEE. Enhancements to the Deliverables which are
substantially performed by PSW shall be owned by PSW and are subject to
the terms of this Agreement.
3.3 Other PSW enhancements. Upon request by LICENSEE, PSW Enhancements not
made for LICENSEE but which can be rightfully licensed to LICENSEE shall
be made available to LICENSEE for an administrative fee specified in
Schedule 1. These PSW Enhancements remain the intellectual property of PSW
and are subject to the terms of this Agreement. PSW shall solely determine
what constitutes a separately licensable asset requiring an additional
license fee versus an enhancement to an existing licensed asset. PSW will
be responsible for maintaining source control Genova Object Library and
providing updates to LICENSEE on a regular basis. Updates will be provided
no less than once a year.
3.4 Enhancements by LICENSEE. Enhancements to the Deliverables which are
performed by LICENSEE shall be owned by LICENSEE.
Section 4
COPYRIGHT NOTICES AND INTELLECTUAL PROPERTY
RIGHTS
4.1 Copyright Notices. LICENSEE shall not remove any existing copyright or
other proprietary rights notices from the Deliverables or PSW
Enhancements.
4.2 Enforcement of Copyright. LICENSEE shall be responsible to enforce PSW or
PSW Licensor copyrights from infringement that result from misuse of
Deliverables provided to Licensee under this Agreement. A failure by
LICENSEE to enforce rights against infringers of these copyrights in a
timely manner after appropriate notification shall be considered a
material breach of this Agreement by LICENSEE.
4.3 Protection of Intellectual Property Rights. LICENSEE shall promptly notify
PSW of any known or suspected violation of PSW or PSW Licensor
intellectual property rights including copyrights, patents, trademarks,
trade secrets, or other proprietary information. LICENSEE shall cooperate
with PSW and provide all reasonable information deemed necessary by PSW to
protect the intellectual property rights of PSW and PSW Licensors. Failure
to notify PSW promptly or to cooperate with PSW shall be a material breach
of this Agreement.
Section 5
INDEMNIFICATION
Indemnity for Deliverables. LICENSEE agrees to indemnify and hold harmless PSW
and its affiliates, officers, agents, directors, and employees, against any and
all claims, actions, proceedings, expenses, damages, attorney's fees, and
liabilities (including but not limited to any governmental investigations,
complaints and actions) arising out of or in connection with (a) any breach of
this agreement by LICENSEE, including its representations, warranties and
covenants, (b) any use of the Deliverables described herein, and (c) any claim
or action for personal injury, death or other cause of action involving product
liability claims arising from or relating to any of the Deliverables.
Section 6
TERM
6.1 Basic term. This Agreement shall be effective from the date it is
originally signed by LICENSEE and PSW and shall remain in force unless it
terminates as provided below.
6.2 Termination for Default. This Agreement shall terminate upon the
bankruptcy or insolvency of LICENSEE.
6.3 Termination for Breach. In the event of material breach of this Agreement
by either party, the other party may terminate this Agreement by giving
thirty (30) days prior written notice thereof; provided that this
Agreement shall not terminate if the party in breach has cured the breach
of which it has been notified prior to the expiration of the thirty (30)
days.
6.4 Loss of Rights by PSW. In the event that PSW shall lose any of its
sub-licenses or rights due to breach, bankruptcy, insolvency, or any other
event, the rights and obligations in this agreement shall survive and
continue.
Section 7
CONFIDENTIAL INFORMATION
7.1 PSW Information. In connection with this Agreement, PSW has provided and
shall provide LICENSEE with certain information that is proprietary and
confidential to PSW or the PSW Licensors and necessary or useful for
LICENSEE to exploit the licenses granted hereunder.
7.2 Confidentiality. The term "Confidential Information" as used herein shall
mean any information disclosed by PSW to LICENSEE related to this
Agreement in a written or other tangible form clearly identified as being
confidential. Oral or visual information shall not be considered as
Confidential Information unless it is designated confidential at the time
of oral or visual disclosure and reduced to a writing clearly marked as
being confidential that is sent to LICENSEE by PSW within thirty (30) days
after such oral or visual disclosure. For the purpose of this Agreement,
any Deliverable or PSW Enhancement shall be deemed Confidential
Information.
7.3 Treatment of Confidential Information. During this Agreement and
thereafter, LICENSEE shall keep the Confidential Information in strict
confidence and shall not disclose it to any person, firm or corporation
outside LICENSEE, nor use the same for any purpose other than performing
the Agreement, in addition, LICENSEE agrees to safeguard the Confidential
Information by restricting its internal dissemination to only those
employees within LICENSEE having a need to know the Confidential
Information for purposes of this Agreement. LICENSEE is fully responsible
to ensure that all employees who are given access to the Confidential
Information maintain the confidentiality of the Confidential Information,
whether or not such employees continue to be employees of LICENSEE. The
RESELLER agreement modifies and extends the treatment of Confidential
Information.
7.4 Exceptions to Treatment of Confidential Information. Notwithstanding the
above, LICENSEE shall have no confidential obligation and no use
restriction hereunder with respect to any confidential information that:
(1) is already know to LICENSEE at the time of disclosure thereof as
evidenced by written records;
(2) is or becomes publicly known through no wrongful act of LICENSEE at
or subsequent to the time of disclosure thereof; or
(3) is permitted for release by prior written consent of PSW.
7.5 Tangible Embodiments. Any and all written or tangible embodiments of
information disclosed to LICENSEE by PSW hereunder shall be and remain the
property of PSW, and LICENSEE agrees promptly to return such tangible
embodiments, including any copy thereof, to PSW upon termination of this
Agreement.
7.6 Intellectual Property. Except to the extent necessary to perform
LICENSEE's obligations hereunder or as otherwise provided herein, no
license or right, expressed or implied, is hereby conveyed or granted to
LICENSEE for any invention, patent application, patent, copyright, know
how, trade secret or other intellectual property of PSW or PSW Licensors.
7.7 Trademarks. No license or right, expressed or implied, is hereby conveyed
or granted to LICENSEE to use any trademark of PSW without the prior
express written consent of PSW or any trademark of any PSW Licensors
without the prior express written consent of such PSW Licensor.
7.8 Enforcement. LICENSEE understands and agrees that the obligations and
restrictions provided herein are necessary and reasonable in order to
protect the businesses of PSW and the PSW Licensors, and PSW and the PSW
Licensors would be irreparably harmed by any breach or threatened breach
hereof. In addition to any other remedies available for breach thereof,
PSW and the PSW Licensors shall be entitled to obtain injunctive relief
against a threatened breach or continuation of any such breach, without
the necessity of providing actual damages.
7.9 Confidentiality of Other Parties. LICENSEE acknowledges that portions of
the Deliverables may be licensed by PSW from other parties. To the degree
that the identity of and terms of those license agreements are made know
to LICENSEE for the execution of this Agreement, LICENSEE shall keep this
Confidential Information in strict confidence and shall not disclose it to
any person, firm or corporation except as required to execute this
Agreement; provided, however, that either party may, on a confidential
basis, disclose those Agreements to its accountants, attorneys, and
financing organizations.
Section 8
REPRESENTATIONS AND WARRANTIES
8.1 Limited Warranty. If any of the physical media in the Deliverables are
physically damaged when received, the damaged items can be returned to PSW
within 30 days and PSW will replace the damaged materials at PSW's own
cost.
8.2 No Other Warranty. LICENSEE acknowledges that PSW and PSW LICENSORS
EXPRESSLY DISCLAIM ANY OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO
THE DELIVERABLES OR THE RESULTS OBTAINED FROM USING THE SAME, INCLUDING
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
8.3 Warranty of Performance. PSW warrants that the services performed under
this Agreement will be of professional quality, performed by qualified
staff experienced in the relevant disciplines and performed in a manner
consistent with generally accepted industry standards.
8.4 Compliance with Laws. PSW warrants that in performance of services under
this agreement, it shall comply with all applicable federal, state, and
local laws, codes and government regulations, including without
limitation, any California Wage Orders and Executive Orders pertaining to
immigration, foreign nationals working in the United States and labor and
employment. PSW agrees that it will not permit work to be performed under
this Agreement by individuals who are citizens of countries to which the
United States government prohibits export of software and related
technology.
Section 9
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL PSW OR THE PSW LICENSORS BE LIABLE FOR SPECIAL,
EXEMPLARY, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGE, INCLUDING BUT NOT LIMITED TO
LEGAL FEES, LOSS OF PROFITS, LOSS OR INACCURACY OF DATA, OR LOSS RESULTING FROM
BUSINESS DISRUPTION, EVEN IF PSW OR THE PSW LICENSORS HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. PSW's SOLE LIABILITY IS LIMITED TO THE AMOUNT PAID
BY LICENSEE.
Section 10
THIRD-PARTY BENEFICIARY
LICENSE acknowledges that the Deliverables and Confidential Information include
that of the PSW Licensors and that the PSW Licensors are third-party
beneficiaries of this Agreement with all the rights of PSW to enforce LICENSEE's
obligations under this Agreement.
Section 11
U.S. GOVERNMENT RESTRICTED RIGHTS
If this license is acquired under a U.S. Government contract, use, duplication
or disclosure by the U.S. Government is subject to restrictions as set forth in
DFARS 252.227-7013(c)(ii) for Department of Defense contracts and as set forth
in FAR 52.227-19 (a)-(d) for civilian agency contracts. PSW and the PSW
Licensors reserve all unpublished rights under the United States copyright laws.
Section 12
GENERAL
12.1 Entire Agreement. The provisions herein constitute the entire agreement
between the parties with respect to the licensing of the subject matter
hereof and supersede all prior agreements, oral or written, and all other
communications relating to the licensing of the subject matter hereof. No
amendment or modification of any provision of this Agreement will be
effective unless set forth in a document that purports to amend this
Agreement and is executed by both parties.
12.2 Assignment. LICENSEE shall not sell, transfer, assign, or subcontract any
right or obligation hereunder except as expressly provided herein with out
the prior written consent of PSW. Any act in derogation of the foregoing
shall be null and void. PSW may assign this Agreement to another party
upon approval of LICENSEE and such approval shall not be unreasonably with
held
12.3 Force Majeure. Except for failures to make any payment when due, neither
party shall be held liable for failure to fulfill its obligations
hereunder if such failure is due to a natural calamity, act of government,
or similar cause beyond the control of such party.
12.4 Governing Law. The validity, construction, and performance of this
Agreement shall be governed by the laws of the Senate of Texas.
12.5 Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law, the remaining provisions of
the Agreement will remain in full force and effect.
12.6 Compliance with Laws and Regulations. PSW and LICENSEE shall comply with
all laws, rules, and regulations of competent public authorities relating
to the duties, obligations, and performance under this Agreement and shall
procure all licenses and pay all fees and other charges required thereby.
12.7 Notices. Any notices required or permitted to be made or given by either
party hereto pursuant to this Agreement will be deemed sufficiently made
or given of the fifth day after the date of mailing if sent to such party
by certified mail, postage prepaid, addressed as set forth below or to
such other address as a party shall designate by written notice given to
the other party. Contact and addresses for notices are Specified in
Schedule 3.
12.8 Waiver. A failure of either party to exercise any right provided for
herein shall not be deemed a waiver of any right under this Agreement.
12.9 Right Outside of Agreement. Nothing contained in this Agreement shall be
construed as limiting rights that the parties may enjoy outside the scope
of the licenses granted and the obligations and restrictions set forth or
treated herein.
IN WITNESS THEREOF, the parties have caused this Agreement to be signed below by
their duly authorized representatives and to be effective as of the later date
written below:
PSW Technologies LICENSEE
By:/s/ Xxx Xxxxxx By:/s/ [Illegible]
--------------------------------- --------------------------------
Title: CFO, VP of Operations Title: President
----------------------------- ----------------------------
Date: 12-10-96 Date: 11-4-96
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SOFTWARE & METHODOLOGY LICENSING AGREEMENT
SCHEDULE LICENSED ASSETS & LICENSING FEES
LICENSED ASSET LICENSE FEE
--------------------------------- -----------
Genova System Library [*]
(See Note 1)
OTHER FEES FEE
--------------------------------- -----------
50 additional copies of Genova System
Library at [*] per copy exclusively for resale
with Neptune systems $ [*]
Porting of Genova System Library from NeXTSTEP
to OPENSTEP $ [*]
NOTES
----------
1. The Genova System Library and Genova Business Library consist of the
software owned by PSW or to which PSW has rights which are required to
convert the licensed source code into software which can be executed on a
PSW specified computer configuration running PSW specified commercially
available software. The purchase, setup, support, maintenance,
installation, and configuration of hardware, commercially available
software, and PSW provided software is the responsibility of LICENSEE.
2. PSW also grants LICENSEE the option to purchase an unlimited number of
additional copies of the Genova System Library at a price not to exceed
$[*] per copy. These copies would also be exclusively for resale with
Neptune systems.
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SOFTWARE & METHODOLOGY LICENSING AGREEMENT
SCHEDULE 2
DEFINITION OF SCOPE OF LICENSEE BUSINESS
The scope of this Agreement is restricted to thc definition of Licensee's
business as defined below:
o Embarcadero Corporation
000 Xxxxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX. 00000
o Embarcadero System Corporation
000 Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
o Marine Terminals Corporation
000 Xxxxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
o Deep Water Port Service
000 Xxxxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
o Northstar
00000 Xxxxx Xxxx Xxxx
XX Xxx 000000
Xxxxxxxxx, XX 00000
o Majestic Insurance
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
o Terminal Maintenance Corporation
0000 Xxxx X Xxxxxx
Xxxx Xxxxx, XX 00000
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SOFTWARE & METHODOLOGY LICENSING AGREEMENT
SCHEDULE 3
NOTICES
Any notice to be given to PSW shall be addressed to:
PSW Technologies
0000 Xxxxxxx xx Xxxxx xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Vice President, Business Systems
PSW Technologies
0000 Xxxxxxx xx Xxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: CFO and Vice President, Operations
Any notice to be given to LICENSEE shall be addressed to:
Embarcadero Corporation
000 Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
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