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EXHIBIT 10.13
MASTER AGREEMENT FOR
PROFESSIONAL SERVICES
THIS MASTER AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement") is made and
entered into as of the 1st day of March, 1995, by and between ▇▇▇▇▇▇▇ LYNCH,
PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED, a corporation of the State of Delaware
with offices at ▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters, North Tower, World Financial
Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇ (hereinafter referred to as
"CUSTOMER"), and NEON SOFTWARE, INC., a corporation of the State of Illinois
with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
(hereinafter referred to as "CONSULTANT").
W I T N E S S E T H
That, for and in consideration of the mutual promises and covenants
hereinafter contained, the parties hereto agree as follows:
ARTICLE 1
GENERAL DESCRIPTION OF OBJECTIVES
AND SCOPE OF SERVICES
1.1 CONSULTANT agrees to provide to CUSTOMER technical assistance and
assistance in design, programming, training, consulting, project
management, use of expertise and related services as are described on
such CONSULTANT Schedules as are executed from time to time by both
parties to this Agreement (the "Schedules"). Such services shall be
provided in accordance with the provisions of this Agreement and
within guidelines established by CUSTOMER. There shall be two types of
Schedules, one a time and materials Schedule substantially in the form
annexed hereto as Exhibit 1 and made a part hereof ("T&M Schedule"),
the other a fixed price Schedule substantially in the form annexed
hereto as Exhibit 2 and made a part hereof ("Fixed Price Schedule").
Each Schedule shall be consecutively numbered to facilitate
identification.
1.1.1 Each such Schedule, when executed by an authorized
representative of both parties, shall constitute a separate
agreement and except for any provisions herein which are
specifically excluded or modified in such Schedule, each such
Schedule shall incorporate therein all of the terms and
conditions of this Agreement. Each T&M Schedule will contain
the names of the CONSULTANT employees performing services
covered by that Schedule, their job classification, the daily
rate of payment applicable to each listed CONSULTANT employee
(the "Daily Rate"), the work location of each CONSULTANT
employee, the name of CUSTOMER's Project Manager and such
additional information, terms and conditions as the parties
may agree upon. Each Fixed Price Schedule will contain
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the fixed price of the work effort, the names of CONSULTANT's
and CUSTOMER's Project Managers and such additional
information, terms and conditions as the parties may agree
upon. In the event of any conflict between the terms and
conditions of this Agreement and the terms and conditions of
any Schedule, the terms and conditions of such Schedule shall
govern.
1.2 The scope of CONSULTANT's work effort must be coordinated with
appropriate personnel designated by CUSTOMER and shall at all times be
subject to the parameters established by CUSTOMER from time to time.
1.3 CONSULTANT agrees that CUSTOMER'S parent company or any subsidiary
and/or affiliated company of CUSTOMER may execute Schedules in
accordance with the provisions of this Agreement. In such event, the
applicable subsidiary or company of CUSTOMER executing any Schedule
shall be considered to be the "CUSTOMER" as that term is used in this
Agreement.
1.4 Unless otherwise mutually agreed to by the parties in writing,
CONSULTANT and CUSTOMER agree not to hire or to solicit the employment
of any personnel of the other party directly or indirectly associated
with CONSULTANT'S work effort under any Schedule during the term of
such Schedule and for a period of six (6) consecutive months
thereafter.
1.5 This Agreement shall commence on the date first above written and
shall continue in full force and effect thereafter unless and until
terminated in accordance with the provisions of this Agreement.
1.6 This Agreement shall apply to all work done by CONSULTANT and to all
products supplied by CONSULTANT to CUSTOMER from the date hereof,
whether or not a Schedule has been executed for such work or products.
ARTICLE 2
STATEMENT OF WORK
2.1 A statement of scope of work (the "Statement") shall be attached to
each Schedule as an Attachment A and shall be incorporated therein and
made a part thereof. Any Statement attached to a T&M Schedule will
contain a description of, and the schedule for, the tasks to be
performed by CONSULTANT, the documentation, if any, to be produced by
CONSULTANT, the maximum dollar amount (the "Maximum Dollar Amount")
billable under such T&M Schedule, and such additional information as
the parties may wish to include. Any Statement attached to a Fixed
Price Schedule will contain a full and complete description of the
tasks to be performed by CONSULTANT, a description of the deliverables
to be produced by CONSULTANT, a listing of the documentation to be
provided by CONSULTANT, the schedule for completion of each of the
foregoing (including, but not limited to, milestone dates and PERT
charts), a schedule of payments and
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such additional information as the parties may wish to include.
2.1.1 Each Schedule referred to herein shall be deemed to include
any such Statement.
ARTICLE 3
ORGANIZATION OF EMPLOYEES
SUPPLIED BY CONTRACTOR
3.1 CONSULTANT will appoint for each T&M Schedule, at no charge to
CUSTOMER, a qualified member of its staff who will operate as the
main interface between CUSTOMER and CONSULTANT, who will ensure that
CONSULTANT personnel coordinate and interface with CUSTOMER personnel
in a manner satisfactory to CUSTOMER, and who will assist CUSTOMER in
resolving any problems.
3.2 In order to establish a close working relationship with CUSTOMER on
fixed price work efforts and to ensure that CONSULTANT personnel
coordinate and interface with such CUSTOMER personnel as may be
designated by CUSTOMER, CONSULTANT agrees to appoint a qualified
member of its staff, at no charge to CUSTOMER, to function as
CONSULTANT's Project Manager for each Fixed Price Schedule. The
CONSULTANT Project Manager will be charged with the responsibility of
coordinating CONSULTANT's fixed price work effort with appropriate
CUSTOMER personnel and of ensuring that CONSULTANT's resources are
available to perform the tasks set forth on the applicable Fixed Price
Schedule. The CONSULTANT Project Manager will also prepare the monthly
status reports required under the terms of Article 5 hereof.
3.3 In the event that any CONSULTANT employee performing services under
any Schedule is found to be unacceptable to CUSTOMER for any cause,
including, but not limited to, demonstration that he or she is not
qualified to perform, CUSTOMER shall have the right to notify
CONSULTANT of such fact (without waiving any other rights or remedies
it may have hereunder) and CONSULTANT shall immediately remove said
employee from performing services under that Schedule and, if
requested by CUSTOMER, provide a qualified replacement.
3.3.1 In the event that any anticipated or actual delays in meeting
CUSTOMER's deadlines or scheduled completion dates for work
being performed under any Schedule are caused by the
unacceptable performance of any CONSULTANT employee,
CONSULTANT shall provide additional temporary personnel, as
requested by CUSTOMER and at no charge to CUSTOMER, in order
to complete the assignment involved in a timely manner.
3.4 CONSULTANT agrees to ensure the continuity of CONSULTANT employees
assigned to perform services under any Schedule. Any reassignment by
CONSULTANT of those of its employees assigned to perform services
under any Schedule must be with CUSTOMER's prior written consent and
with one (1) month's prior written notice to CUSTOMER. In the event
CONSULTANT
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reassigns any of its employees assigned to perform services under any
Schedule, CONSULTANT will promptly provide a replacement acceptable to
CUSTOMER. In no event may CONSULTANT remove or replace personnel
provided hereunder for the purpose of reassignment to another customer
or elsewhere within CUSTOMER, unless otherwise agreed to in writing by
CUSTOMER.
3.5 There will be no charge to CUSTOMER for any replacement provided in
accordance with Sections 3.3 and/or 3.4 hereof for a reasonable
period of time (to be agreed upon between CUSTOMER and CONSULTANT)
while the replacement employee acquires the necessary orientation and
education to make a productive contribution substantially equal to
that of the employee replaced.
3.6 CONSULTANT, in performance of this Agreement, is acting as an
independent contractor. Personnel supplied by CONSULTANT hereunder are
not CUSTOMER's personnel or agents, and CONSULTANT assumes full
responsibility for their acts. CONSULTANT shall be solely responsible
for the payment of compensation of CONSULTANT employees assigned to
perform services hereunder, and such employees shall be informed that
they are not entitled to the provision of any CUSTOMER employee
benefits. CUSTOMER shall not be responsible for payment of workers'
compensation, disability benefits, unemployment insurance and for
withholding income taxes and social security for any CONSULTANT
employee, but such responsibility shall be that of CONSULTANT.
3.6.1 In the event that the Internal Revenue Service, any state or
local government agency or any other applicable entity
determines that the personnel provided by CONSULTANT under any
Schedule are employees of CUSTOMER for the purpose of
withholding tax liability, CONSULTANT agrees to indemnify
CUSTOMER against and release CUSTOMER from all liabilities,
costs, and expenses (including, but not limited to, attorneys'
fees) associated with the defense of such claim.
ARTICLE 4
ORGANIZATION OF PERSONNEL
SUPPLIED BY CUSTOMER
4.1 CUSTOMER shall designate an appropriate CUSTOMER representative as
CUSTOMER's Project Manager for each Schedule. The CUSTOMER's Project
Manager will be charged with the responsibility of acting as
CONSULTANT's principal point of interface with CUSTOMER for the
services covered by the Schedule involved, and, in the case of any T&M
Schedule, will direct, define, and schedule the tasks to be performed
by CONSULTANT employees contemplated by the applicable Statement.
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ARTICLE 5
STATUS REPORTS; STATUS MEETINGS
5.1 Unless otherwise agreed to by CUSTOMER, in writing, CONSULTANT shall
submit to CUSTOMER's designated Project Manager every month during the
term of each Statement (commencing thirty (30) days from the
commencement date of such Statement) written status reports fully
describing CONSULTANT's activities and accomplishments during the
preceding month, in order to timely report CONSULTANT's continuous
involvement in the tasks contemplated by the applicable Statement and
in order to direct timely corrective action as necessary. The status
reports will include, but will not necessarily be limited to, the
following:
5.1.1 Current status of CONSULTANT activities together with an
explanatory narrative when appropriate.
5.1.2 Indication of the progress of the work being performed by
CONSULTANT, as that progress relates to the Statement
involved.
5.1.3 Resources used since the date of the last report, as well as a
cumulative total to date.
5.1.4 Identification of actual and anticipated problem areas, the
impact on CONSULTANT's work effort of said problem areas, and
present action being taken (or suggested alternative action
steps to be taken) in order to reduce the impact of such
problems.
5.2 If CUSTOMER so requests, CONSULTANT shall hold status meetings with
CUSTOMER management in order to review the status of CONSULTANT
activities.
ARTICLE 6
FEES AND EXPENSES; RECORDS; TAXES
6.1 CONSULTANT agrees to invoice CUSTOMER, monthly in arrears as of the
15th day of each month (or as otherwise mutually agreed to by the
parties in writing), for the technical assistance and assistance in
design, programming, consulting, training project management, use of
expertise and related services provided to CUSTOMER by CONSULTANT
personnel under any T&M Schedule in accordance with the Daily Rate set
forth opposite each CONSULTANT employee listed on that Schedule. Such
Daily Rate shall be in no event more than CONSULTANT's standard
published rate for an employee in that job classification. CONSULTANT
agrees to invoice CUSTOMER for any fixed price work effort in
accordance with the schedule of payments set forth on the Statement
attached to the applicable Fixed Price Schedule.
6.1.1 For work performed pursuant to any T&M Schedule, the normal
work week shall be five (5) days, seven (7) hours per day,
excluding one (1) hour for meals. Such days and hours shall be
as requested by CUSTOMER from time to time. In the event that
less than a
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seven (7) hour day is worked by a CONSULTANT employee on any
given day, the amount payable by CUSTOMER for that day will be
determined by applying a fraction whose numerator is the
actual number of hours worked by such CONSULTANT employee and
whose denominator is seven (7) to the appropriate Daily Rate
for that employee. Any hours worked by a CONSULTANT employee
under any T&M Schedule in excess of seven (7) in any one day,
or any days worked by a CONSULTANT employee under any T&M
Schedule in excess of five (5) days in any one week, shall be
at no additional expense to CUSTOMER unless prior written
approval is obtained from the applicable Project Manager, in
which case the amount payable for each such hour shall be 1/7
of the applicable Daily Rate.
6.1.2 For work performed pursuant to any T&M Schedule, CONSULTANT
will submit authorized time sheets to CUSTOMER each week
showing the number of hours worked by CONSULTANT employees.
6.2 In addition to the charges invoiced in accordance with Section 6.1
hereof, CONSULTANT shall invoice CUSTOMER, monthly in arrears as of
the 15th day of each month (or as otherwise mutually agreed to by the
parties in writing), for expenses incurred as a result of performing
services in accordance with any Schedule. Such expenses shall be
limited to the following:
6.2.1 Reasonable out-of-pocket expenses necessarily and actually
incurred by CONSULTANT in the performance of its services
hereunder, provided that: (i) CUSTOMER has given its prior
written consent for any such expenses; (ii) the expenses have
been detailed on a form acceptable to CUSTOMER and submitted
to the appropriate CUSTOMER Project Manager for review and
approval; and (iii) if requested by CUSTOMER, CONSULTANT
submits supporting documentation in addition to the approved
expense form. It is understood that CUSTOMER shall not
reimburse CONSULTANT for commutation expenses under any
circumstances or for travel and living expenses incurred by
any CONSULTANT employee in performing services at a CUSTOMER
facility located in the same metropolitan area as that of
employee's home base. It is also understood that any air
transportation reimbursable hereunder shall be coach-economy
and that entertainment by or on behalf of CONSULTANT shall be
at no cost to CUSTOMER.
6.3 CONSULTANT will submit the charges and/or expenses to be invoiced for
services performed under any Schedule to the CUSTOMER's Project
Manager for that Schedule for review and approval prior to actual
invoicing. The charges and/or expenses invoiced in accordance with
this Article 6, except for any amounts disputed by CUSTOMER, shall be
payable by CUSTOMER within thirty (30) days of CUSTOMER's receipt of
each invoice. Any disputed charges and/or expenses shall not affect
payment of non-disputed charges and/or expenses,
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in accordance with the terms of this Agreement. Consultant agrees to
send duplicate copies of each invoice to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters, World
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: Vice
President - Software & Professional Services, Technology Acquisitions.
6.4 Notwithstanding anything to the contrary contained herein, CUSTOMER
shall not be liable for any charges and/or expenses under any T&M
Schedule in excess of the Maximum Dollar Amount specified on such T&M
Schedule. In the event that CONSULTANT's charges and/or expenses
billable under any T&M Schedule approach the Maximum Dollar Amount,
CONSULTANT shall immediately notify CUSTOMER of such fact, in writing,
and if CUSTOMER agrees, at its discretion, in writing, a new Maximum
Dollar Amount shall be applicable to such T&M Schedule.
6.5 CONSULTANT shall maintain complete and accurate accounting records, in
a form in accordance with generally accepted accounting principles, to
substantiate CONSULTANT's charges and expenses hereunder. Such records
shall include, but not be limited to, payroll records, attendance
cards and job summaries, and CONSULTANT shall retain such records for
a period of one (1) year from the date of final payment under any
Schedule.
6.5.1 CUSTOMER shall have access to the records described in Section
6.5 for purposes of audit during normal business hours during
the period in which CONSULTANT is required by the terms of
Section 6.5. hereof to maintain such records.
6.6 The charges set forth herein do not include and CUSTOMER will pay, as
hereinafter stated, all sales or use taxes lawfully levied against or
upon the services provided hereunder, or arising out of this
Agreement.
ARTICLE 7
VERIFICATION OF ACCEPTABILITY
7.1 Each and every deliverable contemplated by any Schedule shall be
subject to a Verification of acceptability by CUSTOMER for the purpose
of demonstrating that the deliverable satisfies the criteria for
verification of acceptability mutually agreed to by CUSTOMER and
CONSULTANT for said deliverable, a copy of which shall be attached to
the applicable Schedule and made a part thereof.
7.2 The criteria for verification of acceptability for each deliverable
contemplated by any Schedule shall be jointly developed and mutually
agreed to in writing by CUSTOMER and, CONSULTANT at least thirty (30)
days in advance of the date identified in the Schedule for production
of the deliverable involved.
7.2.1 In the event the parties are unable to jointly develop and
mutually agree to the criteria for verification of
acceptability of software
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deliverables, then at a minimum, verification of acceptability
of such software deliverable shall be based on the conformance
of the software deliverables to the functional specifications
for same.
7.2.2 In the event the parties are unable to jointly develop and
mutually agree to the criteria for verification of
acceptability of requirements definition deliverables, design
deliverables or other non-software deliverables, then, at a
minimum verification of acceptability of such deliverables
shall be based, in the case of design deliverables, on the
conformance of the design deliverable to the applicable
statement of business requirements and, in the case of
requirements definition deliverables and other non-software
deliverables, on CUSTOMER's satisfaction or non-satisfaction
with the deliverable.
7.3 The verification of acceptability for any deliverable pursuant to any
Schedule shall commence on the date CONSULTANT notifies CUSTOMER's
Project Manager, in writing, that the deliverable involved has been
satisfactorily completed, in CONSULTANT's opinion, and is ready for
verification of acceptability by CUSTOMER. Such commencement date
shall be a date no later than ten (10) calendar days after the date on
which the deliverable is to be produced, as specified on the
applicable Statement (or such other date as may be mutually agreed to
by both parties in writing). Verification of acceptability shall
continue for the period of time specified in the criteria for
verification of acceptability or, if no such time period has been
agreed upon by the parties, for a period of thirty (30) consecutive
days.
7.4 In the event that any deliverable contemplated by any Schedule does
not conform to the criteria for verification of acceptability for same
within the verification of acceptability period described in Section
7.3 hereof, CUSTOMER shall notify CONSULTANT in writing of such fact.
CUSTOMER shall cooperate with CONSULTANT in identifying in what
respects the deliverable has failed to conform to the criteria.
CONSULTANT shall, at no cost to CUSTOMER, promptly correct any
deficiencies which prevent such deliverable from conforming to the
criteria. Upon completion of the corrective action by CONSULTANT, and
at no additional cost to CUSTOMER, the verification of acceptability
will be repeated until the deliverable has successfully conformed to
the criteria for verification of acceptability.
7.5 If the deliverable contemplated by any Schedule does not conform to
the criteria for verification of acceptability within thirty (30) days
after the initial verification of acceptability period described in
7.3, CUSTOMER may (i) immediately terminate the applicable schedule
without waiving any other rights or remedies it may have hereunder and
CONSULTANT shall immediately reimburse CUSTOMER any amounts paid; or
(ii) require CONSULTANT to continue to
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attempt to correct the differences, reserving the right to terminate
as aforesaid at anytime.
7.6 When any deliverable has successfully conformed to or satisfied the
criteria for verification of acceptability for same, CUSTOMER shall
promptly notify CONSULTANT of such fact in writing.
ARTICLE 8
PATENT AND COPYRIGHT INFRINGEMENT
8.1 CONSULTANT agrees to defend and/or handle at its own cost and expense
any claim or action against CUSTOMER, its parent company, and its or
their subsidiaries and/or affiliated companies, for actual or alleged
infringement of any patent, copyright or other property right
(including, but not limited to, misappropriation of trade secrets)
based on any software, program, service and/or other materials
furnished to CUSTOMER by CONSULTANT pursuant to the terms of this
Agreement or the use thereof by CUSTOMER.
8.1.1 CONSULTANT shall have the sole right to conduct the defense of
any such claim or action and all negotiations for its
settlement or compromise, unless otherwise mutually agreed to
in writing by the parties hereto.
8.2 CONSULTANT further agrees to indemnify and hold CUSTOMER, its parent
company, and its or their subsidiaries and/or affiliated companies,
harmless from and against any and all liabilities, losses, damages,
costs and expenses (including, but not limited to, attorneys' fees)
associated with any such claim or action.
8.3 CONSULTANT agrees to give to CUSTOMER, in reasonable detail, prompt
written notice of any threat, warning, or notice of any such claim or
action against CONSULTANT which could have an adverse impact on
CUSTOMER's use of said software, program, service and/or materials.
8.4 In addition to CUSTOMER'S other rights and CONSULTANT'S obligations
pursuant to Sections 8.1, 8.2 and 8.3 hereof CONSULTANT agrees, should
CUSTOMER'S use of any service, software, program, and/or other
material furnished to CUSTOMER by CONSULTANT be enjoined by any court,
to promptly obtain, at no expense to CUSTOMER, the right to continue
to use the items so enjoined or, at no expense to CUSTOMER, provide
CUSTOMER promptly with substitute items (which supply of such items
will not violate any third party's rights), that are qualitatively and
functionally at least the equal of the enjoined products and satisfy
CUSTOMER's needs to the same extent as the enjoined product.
ARTICLE 9
CONFIDENTIAL INFORMATION
9.1 Confidential information shall mean any information obtained by
CONSULTANT from, or disclosed to CONSULTANT by, CUSTOMER, its parent
company, its or their subsidiaries and/or
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affiliated companies, and/or any of their clients, which relates to
the past, present or future business activities of said entities,
and/or their clients, including, but not limited to, any information
relating to pricing, methods, processes, financial data, lists,
technical data, apparatus, statistics, programs, specifications,
documentation, research, development or related information, and the
results from the provision of the services performed by CONSULTANT
under this Agreement. CONSULTANT shall hold such confidential
information in trust and confidence for CUSTOMER and shall not
reproduce, disclose to any person, firm or enterprise, or use for its
own benefit, any such confidential information. Upon the completion
and/or termination of any Schedule, or sooner if so requested by
CUSTOMER, CONSULTANT shall deliver to CUSTOMER all items, including,
but not limited to, drawings, blueprints, descriptions, test data or
other papers or documents, which may contain any such confidential
information.
9.2 Unless otherwise specified in any Schedule, title to all materials,
products and/or deliverables, including, but not limited to, reports,
designs, programs, specifications, documentation, manuals, visual
aids, and any other materials developed and/or prepared for CUSTOMER
by CONSULTANT under any Schedule (whether or not such Schedule is
completed), and all interest therein shall vest in CUSTOMER and shall
be deemed to be a work made for hire and made in the course of the
services rendered hereunder. To the extent that title to any such
works may not, by operation of law, vest in CUSTOMER or such works may
not be considered works made for hire, all rights, title and interest
therein are hereby irrevocably assigned to CUSTOMER. All such
materials shall belong exclusively to CUSTOMER, with CUSTOMER having
the right to obtain and to hold in its own name, copyrights,
registrations or such other protection as may be appropriate to the
subject matter, and any extensions and renewals thereof. CONSULTANT
agrees to give CUSTOMER and any person designated by CUSTOMER,
reasonable assistance, at CUSTOMER's expense, required to perfect the
rights defined in this Section 9.2. Unless otherwise requested by
CUSTOMER, upon the completion of the services to be performed under
each Schedule or upon the earlier termination of such Schedule,
CONSULTANT shall immediately turn over to CUSTOMER all materials and
deliverables developed pursuant to such Schedule, including, but not
limited to, working papers, narrative descriptions, reports and data.
ARTICLE 10
WARRANTIES
10.1 CONSULTANT warrants and represents that each of its employees assigned
to perform services under any Schedule shall have the proper skill,
training and background so as to be able to perform in a competent and
professional manner and that all work will be performed in accordance
with the Schedules.
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10.2 Unless otherwise specified in any Schedule, all materials,
deliverables and products developed under each Schedule by CONSULTANT,
whether or not such Schedule is completed, are the property of
CUSTOMER, CONSULTANT warrants that CUSTOMER shall receive free, good
and clear title to all materials, deliveries and products developed
under this Agreement.
10.3 CONSULTANT warrants and represents that each and every software
deliverable contemplated by a Fixed Price Schedule shall conform to
the specifications for same as mutually agreed to in writing by
CUSTOMER and CONSULTANT.
10.4 CONSULTANT warrants and represents that for that period of time
specified in the applicable Schedule from the date CUSTOMER notifies
CONSULTANT of the fact that a deliverable has successfully conformed
to the criteria for verification of acceptability for same, in
accordance with Section 7.5 hereof CONSULTANT will, at no charge to
CUSTOMER, furnish such materials and services as shall be necessary to
correct any defects in the operation of the version of the software
deliverable or other products in CUSTOMER's possession and to maintain
them in good working order in accordance with the specifications for
same. Unless otherwise stated in the Schedule, the warranty period
shall be one hundred twenty (120) consecutive calendar days.
Article 11
INDEMNIFICATION; INSURANCE
11.1 CONSULTANT shall be liable for and shall defend, indemnify and hold
CUSTOMER harmless against any claims, losses, damage or expenses
(including reasonable attorney's fees) in connection with or arising
out of the acts or omissions of CONSULTANT; its officers, employees,
agents and representatives.
11.2 CONSULTANT shall procure and maintain for its benefit Comprehensive
General Liability coverage and Umbrella and/or Excess Liability
coverage with minimum total limits of $3,000,000 combined single limit
for property damage and bodily injury. CONSULTANT shall name CUSTOMER
and all parent companies of CUSTOMER as additional insureds, as
respects this particular contract on its Comprehensive General
Liability and Umbrella and/or Excess Liability coverage. CONSULTANT
shall also procure and maintain for its benefit Automobile Liability
coverage in an amount of not less than $500,000 combined single limit.
11.3 CONSULTANT shall procure and maintain a Fidelity Bond covering
CONSULTANT, its officers and employees with a limit of not less than
$2,000,000.
11.4 CONSULTANT shall procure and maintain for itself and its employees all
insurance coverage required by Federal, State or local law, including
Workers' Compensation insurance and a minimum of $100,000 in
Employer's Liability coverage.
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11.5 All insurance coverages maintained by CONSULTANT shall be written by
insurers acceptable to the CUSTOMER. CONSULTANT shall furnish to
CUSTOMER Certificates of Insurance evidencing all of the above
required coverages and naming CUSTOMER and all parent companies of
CUSTOMER as additional insureds as required. Said certificate(s) will
contain a provision whereby thirty (30) days notice must be received
by Group Manager, Technology Acquisitions Group of ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters,
World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, prior
to cancellation or a material change in coverage by either CONSULTANT
or Insurer.
ARTICLE 12
EXCUSABLE DELAYS (FORCE MAJEURE)
12.1 In no event shall either party be liable to the other for any delay or
failure to perform hereunder, which delay or failure to perform is due
to causes beyond the control of said party including, but not limited
to, acts of God; acts of the public enemy; acts of the United States
of America, or any State, territory or political division of the
United States of America, or of the District of Columbia; fires;
floods; epidemics; quarantine restrictions; strikes; and freight
embargoes.
12.2 In every case the delay or failure to perform must be beyond the
control and without the fault or negligence of the party claiming
excusable delay, and the party claiming excusable delay must promptly
notify the other party of such delay.
12.3 Performance times under this Agreement or under any Schedule shall be
considered extended for a period of time equivalent to the time lost
because of any delay which is excusable under this Article 12;
provided, however, that if any such delay continues for a period of
more than sixty (60) calendar days, the party not claiming excusable
delay shall have the option of terminating this Agreement or the
applicable Schedule, upon notice to the party claiming excusable
delay.
ARTICLE 13
MATERIAL BREACH; TERMINATION
13.1 In the event of any material breach of, or material misrepresentation
relating to, any Schedule by either party, the other party may
terminate said Schedule by giving thirty (30) days' prior written
notice thereof and/or pursue any other remedies and rights at law or
in equity; provided, however, that such Schedule will not terminate at
the end of said thirty (30) days' notice period if the party in breach
has cured the misrepresentation or breach of which it has been
notified prior to the expiration of said thirty (30) days.
13.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE, ONE TO THE OTHER, FOR
INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THE FURNISHING, PERFORMANCE, OR USE OF THE SERVICES OR
MATERIALS PROVIDED FOR IN THIS AGREEMENT,
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13
EXCEPT TO THE EXTENT SUCH DAMAGES ARE INCLUDED IN AN AWARD AGAINST
CUSTOMER RESULTING FROM A CLAIM FOR WHICH CUSTOMER IS INDEMNIFIED
HEREUNDER AND EXCEPT FOR PERSONAL INJURY OR DEATH, OR DAMAGE TO REAL
PROPERTY.
ARTICLE 14
TERMINATION FOR CONVENIENCE
14.1 Notwithstanding any other provision(s) of this Agreement to the
contrary, CUSTOMER may terminate this Agreement or any Schedule(s)
hereunder for its convenience by giving CONSULTANT two (2) weeks' prior
written notice of its election to terminate said Agreement or
Schedule. In such case, CUSTOMER agrees to pay CONSULTANT for all
costs incurred by CONSULTANT up to the effective date of termination
at the agreed upon rates and expenses set forth herein.
ARTICLE 15
CUSTOMER SECURITY REGULATIONS/WORK POLICY
15.1 CONSULTANT and each employee of CONSULTANT performing services covered
by any Schedule will safeguard the confidential information of
CUSTOMER to which he/she has access. Without limiting the generality
of the foregoing, neither CONSULTANT nor any employee or other
personnel provided by CONSULTANT will trespass into, destroy, modify,
or disclose any confidential information of CUSTOMER except as
otherwise provided herein. Without limiting any of CUSTOMER'S rights
or remedies hereunder, all of which are specifically reserved, any
unauthorized trespass into, destruction, modification, or disclosure
of confidential information by or caused by CONSULTANT or any employee
or other personnel provided by CONSULTANT will be grounds for
immediate termination of Services and, where appropriate, referral to
law enforcement agencies for criminal prosecution.
15.2 CONSULTANT'S personnel will comply with CUSTOMER'S security
regulations particular to each work location, including, but not
limited to, CUSTOMER'S internal security department's fingerprinting
and photographing screening process. CONSULTANT'S personnel, when
deemed appropriate by CUSTOMER, will be issued visitor identification
cards. Each such card will be surrendered by CONSULTANT'S personnel
upon demand by CUSTOMER or upon termination of this Agreement.
15.3 Unless otherwise agreed to by the parties, CONSULTANT'S personnel will
observe the working hours, working rules, and holiday schedules of
CUSTOMER while working on CUSTOMER'S premises. In addition, the
vacation time for CONSULTANT'S personnel will be scheduled so as not
to interfere with the deadlines or scheduled completion date for any
work being performed under any Schedule.
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14
ARTICLE 16
ASSIGNMENT
16.1 This Agreement shall be binding upon the parties' respective
successors and permitted assigns.
16.2 Neither party may assign this Agreement and/or any of its rights
and/or obligations hereunder without the prior written consent of the
other party, and any such attempted assignment shall be void, except
that CUSTOMER may assign this Agreement, and/or any of its rights
and/or obligations hereunder, upon written notice to CONSULTANT, to
its parent company, or to any of its or their subsidiaries or
affiliated companies, without the consent of CONSULTANT. Furthermore,
no work to be performed by CONSULTANT hereunder shall be subcontracted
to or performed on behalf of CONSULTANT by any third party, except
upon written permission by CUSTOMER.
ARTICLE 17
NOTICES
17.1 All notices and other official communications under this Agreement
shall be in writing and shall be sufficiently given if delivered
personally or mailed by first class mail, proper postage prepaid, to
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED, ▇▇▇▇▇▇▇ ▇▇▇▇▇
World Headquarters, World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Group Manager, Technology Acquisitions, and to
NEON SOFTWARE, INC., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, President, or to such other address
or addressee as either party may from time to time designate to the
other by written notice.
17.2 Any such notice or other official communication shall be deemed to be
given as of the date it is personally delivered or when placed in the
mails in the manner specified.
ARTICLE 18
GOVERNING LAW
18.1 The validity of this Agreement, the construction and enforcement of
its terms, and the interpretation of the rights and duties of the
parties shall be governed by the laws of the State of New York.
ARTICLE 19
MODIFICATION, AMENDMENT, SUPPLEMENT OR WAIVER
19.1 No modification, amendment, supplement to or waiver of this Agreement
or any Schedule hereunder, or any of their provisions shall be binding
upon the parties hereto unless made in writing and duly signed by both
parties.
19.2 A failure or delay of either party to this Agreement to enforce at any
time any of the provisions hereof, or to exercise any option which is
herein provided, or to require at any time performance of any of the
provisions hereto
14
15
shall in no way be construed to be a waiver of such provisions of this
Agreement.
ARTICLE 20
COMPLETE AGREEMENT
20.1 This Agreement, together with all Schedules, Exhibits and Attachments
hereto constitutes the entire agreement between the parties and
supersedes all prior agreements, promised, proposals, representations,
understandings and negotiations, whether written or oral, between the
parties respecting the subject matter hereof.
ARTICLE 21
SEVERABILITY
21.1 In the event any one or more of the provisions of this Agreement shall
for any reason be held to be invalid, illegal or unenforceable, the
remaining provisions of this Agreement shall be unimpaired and the
invalid, illegal or unenforceable provisions shall be replaced by a
mutually acceptable provision which, being valid, legal and
enforceable, comes closest to the intention of the parties underlying
the invalid, illegal, or unenforceable provision.
ARTICLE 22
ADVERTISING OR PUBLICITY
22.1 Neither party shall use the name or symbol of the other in publicity
released or advertising without securing the prior written consent of
the other.
ARTICLE 23
EXHIBITS; ATTACHMENTS
23.1 The terms and conditions of any and all Exhibits and Attachments to
this Agreement are incorporated herein by this reference and shall
constitute part of this Agreement as if fully set forth herein.
ARTICLE 24
HEADINGS
24.1 The headings in this Agreement are for purposes of reference only and
shall not in any way limit or affect the meaning or interpretation of
any of the terms hereof.
ARTICLE 25
FAVORABLE PROVISIONS
25.1 CONSULTANT warrants that all of the provisions of this Agreement are
comparable to or better than the equivalent provisions being offered
by CONSULTANT to any of its present commercial customers. If
CONSULTANT offers more favorable provisions to commercial customers
during the terms of their
15
16
contract periods under this Agreement, such provisions shall be made
available to CUSTOMER. CONSULTANT'S obligations pursuant to this
Article 25 may be limited by applicable law.
ARTICLE 26
COMPLIANCE WITH LAWS
26.1 CONSULTANT warrants that it will comply with all applicable U.S.,
state and local laws and regulations in its performance of its
obligations hereunder.
IN WITNESS WHEREOF, the parties hereto, each acting under due and proper
authority, have executed this Agreement as of the date first above written.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ NEON SOFTWARE, INC.
& ▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
------------------------------- -------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
----------------------------- -----------------------------
Title: Vice President Title: President and CEO
---------------------------- ----------------------------
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17
EXHIBIT 1 (SAMPLE ONLY)
T&M SCHEDULE
This Schedule, dated as of ________, 19__, is issued pursuant to, and
incorporates herein, the Master Agreement for Professional Services dated as of
________, 19__, ("Agreement"), by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇; ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated ("Customer"), and ________________ ("Consultant"). Any term
not otherwise defined herein shall have the meaning ascribed to it in the
Agreement.
----------
(Number)
------------------------------------- -------------------------------------
(CUSTOMER Location) (CONSULTANT Location)
------------------------------------- -------------------------------------
------------------------------------- -------------------------------------
-------------------------------------
(CUSTOMER Project Manager)
Scheduled
Name of CONSULTANT Job Daily Commencement Completion
Employee Classification Rate Date Date
------------------ -------------- ----- ------------ ----------
1.
2.
3.
Maximum Dollar Amount
Warranty Period
See Attachment A for a description of, and the schedule for, the tasks to be
performed and the documentation, if any, to be produced.
IN WITNESS WHEREOF, the parties hereto, each acting with proper authority, have
executed this Schedule No.___ as of the day, month and year first above
written.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇
---------------------------------- & ▇▇▇▇▇ INCORPORATED
By: By:
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
18
EXHIBIT 2 (SAMPLE ONLY)
FIXED PRICE SCHEDULE
This Schedule, dated as of ________, 19__, is issued pursuant to, and
incorporates herein, the Master Agreement for Professional Services dated as of
________, 19__, ("Agreement"), by and between ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated ("Customer"), and ________________ ("Consultant"). Any term
not otherwise defined herein shall have the meaning ascribed to it in the
Agreement.
----------
(Number)
Fixed Price Scheduled Start Date
Warranty Period Scheduled Completion Date
CUSTOMER Project Manager CONTRACTOR Project Manager
See Attachment A for a full and complete description of the tasks to be
performed, a description of the deliverables to be produced, a listing of the
documentation to be provided, the schedule for completion of each of the
foregoing (including, but not limited to, milestone dates and PERT charts) and
a schedule of payments.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇
---------------------------------- & ▇▇▇▇▇ INCORPORATED
By: By:
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
19
[▇▇▇▇▇▇▇ ▇▇▇▇▇ LETTERHEAD]
February 15, 1996
▇▇. ▇▇▇▇ ▇▇▇▇, President
NEON Software, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
Subject: Schedule ▇▇. ▇▇▇▇▇▇▇▇▇ to the Master Agreement for Professional
Services
Dear ▇▇▇▇:
Enclosed for your files is a fully executed original of Schedule No. NTP501368
to the Master Agreement for Professional Services in place between NEON and
▇▇▇▇▇▇▇ ▇▇▇▇▇ covering the products and services that your firm is providing to
▇▇▇▇▇▇▇ ▇▇▇▇▇ in connection with our CICG initiative. Also enclosed is an
executed original of the Escrow Agreement among Neon, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Fort
▇▇▇▇ Escrow Services, Inc.
Thank you for your patience and cooperation in this matter. If you have any
questions, please feel free to contact me at (▇▇▇) ▇▇▇-▇▇▇▇.
Sincerely,
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
enclosures
cc. (w/o enclosures)
▇. ▇▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
▇. ▇▇▇▇
▇. ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
A. ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
20
ATTACHMENT A TO T&M SCHEDULE NO. NTP501368
Customer Project Manager: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Consultant Project Manager: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
GENERAL DESCRIPTION AND SCOPE OF BUSINESS
1 CONSULTANT shall create with the assistance of CUSTOMER, as described
in Section 3 below, detailed final functional specifications (the
"Functional Specifications") and technical specifications (the
"Technical Specifications") for that middleware software (the
"Software"), which Software is more fully described in Exhibit I
attached hereto and made a part of hereof, by May 1, 1996 (the
"Scheduled Completion Date"). Such Functional Specifications shall be
comprehensive in scope to a level where they could be used to create
technical specifications that could be relied on by a trained
technician other than CONSULTANT to develop the Software. The
Technical Specifications shall be comprehensive in scope to a level
where they could be used by CONSULTANT to develop the Software, should
CUSTOMER select CONSULTANT to perform such services pursuant to
Section 2 below. CONSULTANT shall create an initial functioning
release of the Software (the "Middleware Product"), which release
already exists in a preliminary form known as "Release 0 (zero),"
based upon the Preliminary Business Requirements contained in Exhibit
I (the "Preliminary Business Requirements") by December 31, 1995.
CONSULTANT shall also create an initial functioning release of the
System Management and Administration Tool (the "System Tool"), based
on the development of preliminary specifications to be provided by
CUSTOMER to CONSULTANT and which will be subject to CUSTOMER's
acceptance. (The Technical Specifications together with the Functional
Specifications, and the Preliminary Business Requirements will be
collectively referred to herein as the "Specifications.")
2 In May of 1996, CUSTOMER will issue a Request For Proposal (the "RFP")
to solicit bids for the development of the Software based on the
Specifications and for the maintenance and support of the same.
CONSULTANT will have the right, like any other bidder, to submit a
response to the RFP within the timeframes required by the RFP.
Notwithstanding any provisions set forth herein, in no event will
CUSTOMER be required to select CONSULTANT to provide the services
described in the RFP. If, however, CUSTOMER elects, in its sole
discretion, to select CONSULTANT to perform the services described in
the RFP, any agreements entered into between CONSULTANT and CUSTOMER
for the performance of the services described in the RFP will provide
that CONSULTANT shall credit CUSTOMER all amounts paid hereunder
against amounts that would otherwise be due and owing to CONSULTANT
under such contract.
21
3 CUSTOMER will assist CONSULTANT in creating the Specifications,
Release 0 and the System Tool by making the following facilities and
personnel available commencing on December 1, 1995:
3.1 CUSTOMER shall assign and dedicate certain personnel, as set
forth in Exhibit II attached hereto and made a part hereof
(the "Requirements Team"), during the requirements phase of
the development and testing of the Specifications.
3.2 CUSTOMER shall provide CONSULTANT with (i) a receiving,
testing and quality assurance laboratory (the "Laboratory")
for the development and testing of Release 0 and the System
Tool, and (ii) such conference room(s) as is determined
necessary by the CUSTOMER Project Manager (as such term is
defined in Section 4.3 below).
3.3 CUSTOMER shall assign an alliance engineer who will act as an
on-site liaison at CONSULTANT's development location.
3.4 CUSTOMER shall provide CONSULTANT with access to Tandem, MVS,
and other required, mutually agreed upon platforms for the
development and testing of Release 0 and the System Tool.
3.5 CUSTOMER shall make available as deemed reasonably necessary
by CONSULTANT and CUSTOMER facilities for video conferencing.
3.6 CUSTOMER shall use Microsoft Project as a common project
management tool for planning and status tracking.
3.7 CUSTOMER shall provide CONSULTANT with modem access to
CUSTOMER's Laboratory.
4 In order to deliver the Specifications to CUSTOMER by the Scheduled
Completion Date, CONSULTANT shall take the following actions
commencing on December 1, 1995:
4.1 CONSULTANT shall provide CUSTOMER with requirements for the
establishment of a receiving, testing and quality assurance
testing facility in connection with Release 0 and the System
Tool.
4.2 At CUSTOMER's request, CONSULTANT shall provide CUSTOMER
migration support (including testing) and software to enable
the smooth transition from the existing ▇▇▇▇▇▇▇ ▇▇▇▇▇ Data
Propagation Utility ("DPU") to Release 0 at the time and
material rates set forth in Sections B, C and D of Exhibit IV
below.
4.3 ▇▇▇▇ ▇▇▇▇, President of CONSULTANT (the "CONSULTANT Project
Manager") shall participate with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or any other
project manager designated by CUSTOMER (the "CUSTOMER Project
Manager," collectively
2
22
with the CONSULTANT Project Manager, the "Project Managers")
in monthly executive update meetings and bi-weekly status
reviews.
4.4 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Architect of CONSULTANT, shall be
available on-site at CUSTOMER's location during the
development, design, coding and testing phases of Release 0
and the System Tool at such times as deemed reasonably
necessary by the Project Managers; provided, however, that
such times of availability shall not be less than 50% of
CUSTOMER's normal business hours.
4.5 Commencing on December 1, 1995 CONSULTANT shall assign and
dedicate certain personnel to participate as members of (the
"Core Team"), as set forth in Exhibit II attached hereto and
made a part hereof, during the requirements, specifications,
design, coding and testing phases.
4.5.1 The Core Team shall consult with, interview and work
within the Requirements Team in translating and
incorporating the CUSTOMER's business requirements
into the Specifications, Release 0 and the System
Tool.
4.5.2 The Core Team shall participate in meetings with the
Project Managers to determine whether the
Specifications, Release 0 and the System Tool are
being developed on a timely basis and discuss any
problems arising in connection therewith.
4.5.3 In addition, CONSULTANT shall engage the following
individuals:
(a) at least one full-time dedicated technical
writer to assist in the completion of all
required documentation relating to the
development and testing of the
Specifications, Release 0 and the System
Tool; and
(b) a full-time dedicated development manager and
a full-time dedicated support manager, each
of whom shall be subject to CUSTOMER's prior
approval (which approval shall not be
unreasonably withheld).
4.5.4 Upon 30 calendar days' notice to the CONSULTANT
Project Manager, the CUSTOMER Project Manager may
instruct CONSULTANT to increase or decrease the size
of the Core Team by up to 20%.
4.5.5 On the Scheduled Completion Date, the Core Team shall
be reduced to three CONSULTANT personnel designated
by the Project Managers. Such CONSULTANT personnel
shall be dedicated on a full-time basis to provide
support (including testing) and maintenance for
Release 0 and the System Tool and migration support
to enable the smooth transition from DPUs to Release
0 for a six-month period following the Scheduled
3
23
Completion Date, and thereafter on a month-to-month
basis. Such CONSULTANT personnel shall perform such
support and maintenance services on a time and
material basis at the rates set forth in Section D of
Exhibit IV attached hereto and made a part hereof.
4.5.6 CUSTOMER shall have the right to remove any
CONSULTANT personnel set forth in this Section 4.5 in
accordance with Article 3 of the Agreement.
4.6 CONSULTANT shall grant CUSTOMER priority over other customers
of CONSULTANT in the event that CUSTOMER determines in its
reasonable discretion that the creation and development of any
of the Specifications, Release 0 or System Tool is behind
schedule.
4.7 CONSULTANT shall make available as deemed reasonably necessary
by CONSULTANT and CUSTOMER facilities for video conferencing.
4.8 CONSULTANT shall use Microsoft Project as a common project
management tool for planning and status tracking.
4.9 During the term of this Schedule, CONSULTANT shall make
available to CUSTOMER any derivative works, enhancements,
upgrades, refinements or modifications of Release 0 that
CONSULTANT makes commercially available to third parties.
After the termination of this Schedule, CONSULTANT shall make
available to CUSTOMER any derivative works, enhancements or
upgrades which represent material changes to the existing
functionality of Release 0 and any new functionality developed
to meet the requirements of any customer of CONSULTANT under
the most favorable terms available to any CONSULTANT customer
for a period of two years from the date of CUSTOMER's
acceptance of the Specifications, Release 0 and the System
Tool.
5 Notwithstanding anything to the contrary set forth in Article 9 and
Section 10.2 of the Agreement, CUSTOMER and CONSULTANT agree that
CONSULTANT shall retain ownership of the Specifications, Release 0 and
the System Tool, including all copyright, patent, trade secret,
trademark and other proprietary rights relating thereto. At each stage
of development and testing of the Specifications, Release 0 and the
System Tool, CONSULTANT shall grant and CUSTOMER shall accept a
non-exclusive, perpetual, world-wide, royalty free, enterprise license
to use the Specifications, Release 0 and the System Tool in accordance
with the terms and conditions set forth in Exhibit III attached hereto
and made a part hereof.
6 Notwithstanding CONSULTANT's ownership rights set forth in Section 5
above, CUSTOMER shall retain ownership, including all copyright,
patent, trade secret, trademark and other proprietary rights, to any
and all portions of the Preliminary Business Requirements and
Functional Specifications that incorporate or utilize CUSTOMER
confidential information (as such term is defined in Article 9 of the
4
24
Agreement), including without limitation, trade volumes, global
installation sites and deployment plans and all other information
obtained in connection with the requirements, specifications, design,
coding and testing of the Specifications, Release 0 and the System
Tool, and nothing hereunder grants CONSULTANT any right, title,
interest or license in or to such information. CONSULTANT shall
promptly, upon CUSTOMER's request, submit to CUSTOMER a copy of the
functional specifications it has developed for any CONSULTANT Product
to permit CUSTOMER to verify that such functional specifications
include only generic functionality descriptions derived from or based
upon the Functional Specifications and not functionality descriptions
that incorporate CUSTOMER confidential information.
7 Contemporaneously upon execution of this Schedule, CONSULTANT will
deposit the "Source Code" for Release 0 and the Specifications at
their then current stage of development (the "Escrow Deposit") into an
escrow account pursuant to the terms of an escrow agreement, a copy of
which is attached hereto as Exhibit V (the "Escrow Agreement"), by and
among CONSULTANT, CUSTOMER and Fort ▇▇▇▇ Escrow Services, Inc., (the
"Escrow Agent") which will be executed concurrently with this
Schedule. The Escrow Agreement shall be executed concurrently with
this Schedule and shall authorize the Escrow Agent to release the
Escrow Deposit for use by CUSTOMER to complete the development of
Release 0 and create Middleware Software based upon the Specifications
in their then current stage of development upon the occurrence of a
material breach by CONSULTANT in accordance with Section 13.1 of this
Agreement (including without limitation any material breach of this
Schedule) that is not cured within the applicable cure period. In
addition, CUSTOMER shall have the right to receive a copy of the
Escrow Deposit from the Escrow Agent at any time during the term of
this Schedule if ▇▇▇▇ ▇▇▇▇ and/or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ are no longer
actively involved in the testing or development of Release 0, the
Specifications and the System Tool.
CONSULTANT represents and warrants to CUSTOMER, in addition to the
representations and warranties set forth in Section 10.1 of the
Agreement and Section 23 below, that the "Source Code" for Release 0
in the Escrow Deposit is human readable, fully narrated with logic
diagrams and can be used by a trained technician to further develop
and enhance Release 0 and can be compiled or interpreted by a computer
for execution as is in a form suitable for reproduction by computer
and photocopy equipment, and consisting of a full source code language
statement of the program or programs comprising the Software and
complete program maintenance documentation, including all flow charts,
schematics and annotations which comprise the precoding detail design
specifications and all other material necessary to allow a reasonably
skilled third party programmer or analyst to maintain or enhance the
Software and use the Specifications to develop middleware software
without the help of any other person or reference to any other
material. At each stage of development of Release 0 and the
Specifications and upon the creation of any updates or enhancements to
Release 0, CONSULTANT shall deposit the Source Code for such modified
Release 0 or such updates or enhancements thereto into the escrow
account pursuant to the terms of the Escrow Agreement.
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25
SPECIAL TERMS AND CONDITIONS
8 CONSULTANT shall perform the services described herein, excluding
those services described in Section 4.5.5 above, on a time and
materials basis at the rates set forth in Section B of Exhibit IV
attached hereto and made a part hereof. The parties agree that the
charges set forth in Exhibits IV represent all charges in connection
with the Specifications, Release 0 and the System Tool and in no event
shall CUSTOMER be liable for any other charges relating to the
development, testing, completion, maintenance or support of the
Specifications, the Data Propagation Utilities, Release 0 or the
System Tool.
9 Notwithstanding CONSULTANT's ownership of the Specifications, Release
0 and the System Tool, which ownership is subject to Section 6 above,
and the non-exclusive license granted herein, prior to CONSULTANT's
sale or licensing to any third party of any product derived from or
based upon the Specifications, or any part thereof (the "CONSULTANT
Product"), CONSULTANT shall promptly notify CUSTOMER prior to any
negotiations regarding such sale or licensing of (i) the name of such
third party, (ii) the product to be developed or licensed for such
third party and (iii) the fees to be paid to CONSULTANT by such third
party. CUSTOMER shall maintain such information in confidence and this
obligation shall continue in effect until CONSULTANT's obligation to
pay royalties under Section 10 below ceases.
10 In consideration of (i) CUSTOMER providing support as described
herein, and a testing environment for the development of the
Specifications, Release 0 and the System Tool, and (ii) CUSTOMER
transferring to CONSULTANT all ownership rights in the Specifications,
Release 0 and the System Tool that otherwise would have accrued to
CUSTOMER pursuant to Article 9 and Section 10.2 of the Agreement
(subject to Section 9 above), upon any development, sale or licensing
of CONSULTANT Products, CONSULTANT shall pay CUSTOMER a royalty
payment in the amount of 30% of all license, maintenance, support and
upgrade fees paid to CONSULTANT by any third party in connection with
any CONSULTANT Product, which royalty payment shall be made on a
calendar quarterly basis commencing upon the payment by any customer
to CONSULTANT of fees for any CONSULTANT Product. CONSULTANT will,
promptly upon CUSTOMER's request, submit a complete and accurate list
to CUSTOMER of all then current customers of CONSULTANT, together with
a description of the fees payable by such customer to CONSULTANT
relating to any CONSULTANT Product that is the subject of the royalty
payable to CUSTOMER under this Section 10. Upon any sale of all or
substantially all of the assets of CONSULTANT or upon the merger or
consolidation of CONSULTANT by operation of law or otherwise,
CONSULTANT will cause the successor in interest to agree in writing to
abide by the terms and conditions of this Section 10 and Section 11
below with respect to royalty payment obligations prior to or
contemporaneous with such merger, consolidation or sale of assets. The
obligations set forth in this Section 10 will survive the termination
of this Schedule after acceptance by CUSTOMER of the Specifications.
Notwithstanding the foregoing, CONSULTANT's royalty payment obligation
will
6
26
continue in effect until CONSULTANT has paid CUSTOMER one and one-half
(1 1/2) times all fees and amounts payable by CUSTOMER to CONSULTANT
commencing on December 1, 1995 under this Schedule or under any
agreement entered into by the parties hereto as a result of this
Schedule or the RFP.
11 If royalties are payable by CONSULTANT to CUSTOMER pursuant to Section
10 above, CONSULTANT shall cooperate fully with CUSTOMER or its
auditors, upon reasonable prior notice, for the purpose of inspecting,
examining, and auditing all books and records of CONSULTANT relating
to the sale or licensing of any CONSULTANT Product; provided, however,
that any such inspection, examination and/or audit shall take place
only during normal business hours and in a manner that will not
disrupt CONSULTANT's business; provided, further that if CUSTOMER
discovers that the royalty payments made by CONSULTANT, if any, are
more than five percent (5%) less than the actual royalty payments due
and owing under this Schedule, CONSULTANT shall reimburse CUSTOMER for
the reasonable cost of such audit and shall pay CUSTOMER the unpaid
royalty payment, plus interest on such payment, calculated as of the
date such payment was due and owing, which interest shall accrue at
the lesser of (i) 1.5% per month or (ii) the highest rate allowed by
law.
12 In the event that at any time, CONSULTANT makes the CONSULTANT Product
available to or develops such product for any third party, CONSULTANT
shall make the CONSULTANT Product available to CUSTOMER for a mutually
agreed upon license fee, which license fee shall be negotiated in good
faith but in no event shall such fee be greater than the fee charged
to such third party. CONSULTANT shall calculate the upgrade,
maintenance and support fees which would be incurred for use by
CUSTOMER of such CONSULTANT Product under the most favorable terms
available to any CONSULTANT customer.
13 If, at any time during the term of the Agreement ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and/or
▇▇▇▇ ▇▇▇▇ ceases to play an active role in CONSULTANT's development
and testing of the Specifications, Release 0 and the System Tool for
CUSTOMER, CUSTOMER shall have the right to terminate this Schedule
unless, within 30 days after receiving notice of CUSTOMER's intent to
terminate the Schedule, CONSULTANT shall provide CUSTOMER with
evidence of such person's active participation in such development and
testing of the Specifications, Release 0 and the System Tool for
CUSTOMER. In the event of such termination, CONSULTANT shall grant to
CUSTOMER the license to use each of the Specifications, Release 0 and
the System Tool at its then current stage of development and shall
have the right to receive the Escrow Deposit from the Escrow Agent by
CUSTOMER to complete the development of Release 0 and create
Middleware Software based upon the Specifications in their then
current stage of development upon the occurrence of a material breach
by CONSULTANT in accordance with Section 13.1 of this Agreement
(including without limitation any material breach of this Schedule)
that is not cured within the applicable cure period. CUSTOMER shall
pay CONSULTANT all amounts due and owing as of the effective date of
such termination.
7
27
14 NOTWITHSTANDING SECTION 13.2 OF THE AGREEMENT, IN NO EVENT SHALL
CONSULTANT BE LIABLE FOR: (A) LOST PROFITS, LOSS OF DATA, LOSS OF USE
OF RELEASE 0, THE SYSTEM TOOL, OR ANY OTHER SOFTWARE DEVELOPED
PURSUANT TO THE SPECIFICATIONS OR THE COST OF RECREATING LOST DATA;
(B) ANY DAMAGES CAUSED BY CUSTOMER'S FAILURE TO PERFORM CUSTOMER'S
RESPONSIBILITIES; OR (C) EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL,
SPECIAL, OR CONSEQUENTIAL DAMAGES OR COSTS (INCLUDING ATTORNEYS' FEES)
ARISING OUT OF THE USE OR INABILITY TO USE RELEASE 0, SYSTEM TOOL, OR
SOFTWARE DEVELOPED PURSUANT TO THE SPECIFICATIONS, OR ANY COMPONENT
THEREOF, EVEN IF CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
15 NOTWITHSTANDING SECTION 13.2 OF THE AGREEMENT, IN NO EVENT SHALL
CUSTOMER BE LIABLE FOR: (A) ANY LOST PROFITS, OR (B) EXEMPLARY,
PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR
COSTS (INCLUDING ATTORNEYS' FEES) ARISING OUT OF THIS SCHEDULE, EVEN
IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16 NOTWITHSTANDING ANYTHING IN THE AGREEMENT OR THIS SCHEDULE TO THE
CONTRARY, EACH PARTY'S ENTIRE LIABILITY TO THE OTHER PARTY FOR DAMAGES
UNDER THIS SCHEDULE SHALL NOT EXCEED THREE TIMES THE AMOUNT PAYABLE BY
CUSTOMER TO CONSULTANT UNDER THIS SCHEDULE. NOTWITHSTANDING THE
FOREGOING LIMITATION, THE LIMITATION OF LIABILITY OF THIS SECTION 16
SHALL NOT APPLY TO ANY THIRD PARTY CLAIMS, ARTICLE 8 OF THE AGREEMENT
(INTELLECTUAL PROPERTY INFRINGEMENT), FRAUD, ACTS OF GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT.
17 CUSTOMER shall not alter, remove, modify or suppress any proprietary
notices or copyright legends placed on or contained within the
Technical Specifications, Release 0, or the System Tool. CUSTOMER
shall reproduce all such proprietary notices and confidentiality
legends on all copies of the Technical Specifications, Release 0 and
the System Tool.
18 OTHER THAN AS SPECIFICALLY STATED IN THE AGREEMENT, CONSULTANT MAKES
NO WARRANTIES OF ANY KIND, AND DISCLAIMS ALL OTHER WARRANTIES, EITHER
WRITTEN OR ORAL, EXPRESS OR IMPLIED, OR FROM A COURSE OF PERFORMANCE
OR DEALING OR TRADE USAGE. THERE ARE NO IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8
28
19 The Specifications, Release 0, the System Tool, and any software,
program, service and/or other materials furnished to CUSTOMER by
CONSULTANT hereunder, shall be subject to the infringement protections
and indemnification provisions set forth in Article 8 of the Agreement;
provided, however, that such indemnification provisions shall extend
to CUSTOMER's directors, officers, employees and agents.
20 Notwithstanding anything to the contrary in Section 11.2 of the
Agreement, for the purposes of this Schedule the requirement for
comprehensive general liability coverage in the amount of Three
Million Dollars ($3,000,000) is hereby reduced to Two Million Dollars
($2,000,000).
21 Notwithstanding anything to the contrary in Section 11.3 of the
Agreement, for the purposes of this Schedule the requirement for a
fidelity bond in the amount of Two Million Dollars ($2,000,000) is
hereby waived in its entirety.
22 Nothing in this Schedule or the Agreement shall be construed to
constitute or appoint either party as the agent, partner, joint
venturer, or representative of the other party for any purpose
whatsoever, or to grant to either party any right or authority to
assume or create any obligation or responsibility, express or implied,
for or on behalf of or in the name of any other party designated
herein, or to bind any such other party in any way or manner
whatsoever.
23 CONSULTANT represents, warrants and covenants to CUSTOMER that:
23.1 It is a corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation
and has all requisite power and authority to enter into and
perform its obligations under this Schedule;
23.2 This Schedule when executed will become the legal, valid and
binding obligation of it enforceable against it in accordance
with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws
relating to the rights of creditors generally;
23.3 There are no material actions, suits, proceedings or
investigations commenced or threatened against it, at this
time, which could adversely affect CUSTOMER's use of the
Specifications, Release 0, the System Tool and any
enhancements or updates thereto or the services provided
hereunder;
23.4 It owns all right, title and interest in and to the
Specifications, Release 0 and the System Tool at all stages of
development and testing and it has the right to grant to
CUSTOMER the license to use the Specifications, Release 0 and
the System Tool at all stages of development and testing as
set forth herein. CUSTOMER's use of the Specifications,
Release 0 and the System Tool will not be interrupted or
otherwise disturbed by any entity asserting a claim under or
through CONSULTANT. Further, it owns all right, title and
interest in and to each enhancement or update thereto at all
stages of development and testing and it has
9
29
and will have the right to grant CUSTOMER the license to use
such enhancements or updates at all stages of development and
testing, and as of the execution date of this Schedule,
CUSTOMER's use of such enhancements or updates will not be
interrupted or otherwise disturbed by any entity asserting a
claim under or through CONSULTANT;
23.5 Its execution of and performance under this Schedule does not
and will not conflict with, cause a breach of, violate, or
constitute a default under any order, decree, judgment,
agreement, arrangement understanding or instrument to which it
is a party or is otherwise bound or is otherwise applicable to
it;
23.6 CONSULTANT will take reasonable and diligent precautions to
guard against, detect and alert CUSTOMER to, and remedy any
"virus" or "worm", as such terms are understood in the
computer industry, which may invade Release 0 or the System
Tool, any enhancements or updates thereto, the computer
systems on which they operate at CONSULTANT's facilities and
processing sites or which may invade the computer systems at
CUSTOMER's facilities as a result of the modem access provided
under Section 3.7 above
23.7 Release 0 and the System Tool and any enhancements or updates
thereto do not contain any routines, devices or lock out
mechanisms that are designed to interfere with CUSTOMER's full
use of such products as provided in this Schedule;
23.8 The Specifications, Release 0, the System Tool and any
enhancements or updates thereto do not and will not infringe
upon any copyrights or patents, or any other proprietary
rights, of any other person, firm or corporation and
CONSULTANT has no knowledge, at this time, of any such
threatened or pending claim of infringement by CONSULTANT;
23.9 CONSULTANT shall promptly correct malfunctions and errors in
Release 0 and the System Tool and all errors in the
Specifications and any enhancements or updates to Release 0
and the System Tool at no charge to CUSTOMER for a period of
one year following their delivery;
23.10 It complies, and will comply, with all applicable laws, rules
and regulations, in all material respects, with respect to
performing its obligations under this Schedule;
23.11 The Specifications, Release 0 and the System Tool, including
all enhancements or updates thereto, comply and will comply
with all applicable laws, rules and regulations, in all
material respects, pertaining to the creation, licensing and
use of such materials; and
10
30
23.12 All employees and subcontractors engaged by CONSULTANT will
be controlled, directed, supervised and compensated
exclusively by CONSULTANT or its authorized agents or
representatives while performing its obligations hereunder and
will not be entitled to any benefits or compensation from
CUSTOMER while performing any such work and will be informed
by CONSULTANT that they are not so entitled.
24 CUSTOMER represents, warrants and covenants to CONSULTANT that:
24.1 It is a corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation
and has all requisite power and authority to enter into and
perform its obligations under this Schedule;
24.2 This Schedule when executed will become the legal, valid and
binding obligation of it enforceable against it in accordance
with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws
relating to the rights of creditors generally;
24.3 Its execution of and performance under this Schedule does not
and will not conflict with, cause a breach of, violate, or
constitute a default under any order, decree, judgment,
agreement, arrangement, understanding or instrument to which
it is a party or is otherwise bound or is otherwise applicable
to it; and
24.4 It complies, and will comply, with all applicable laws, rules
and regulations, in all material respects, with respect to
performing its obligations under this Schedule;
25 The parties hereto acknowledge and agree that time is of the essence
as to all obligations of the parties hereto and such obligations may
be extended or modified only as provided herein or as agreed to, in
writing, by CONSULTANT and CUSTOMER.
26 The parties hereto hereby amend the Agreement by deleting the title to
Article 8 in its entirety and inserting the following: "INTELLECTUAL
PROPERTY INFRINGEMENT."
***
11
31
EXHIBIT I
PRELIMINARY BUSINESS REQUIREMENTS
DESCRIPTION OF THE COMPONENTS OF THE SOFTWARE
The Software will be comprised of three functional components and a set of
integrated GUI support tools. The functional components will be:
o MESSAGING AND QUEUING - providing asynchronous point-to-point cross-
platform guaranteed message delivery;
o DYNAMIC FORMATTER - providing message reformatting under the control of
input output message format specifications and/or self-describing
messages;
o RULES BASED MESSAGE EVALUATION - providing evaluation of messages by
testing message content against a set of Boolean expressions.
The MESSAGING AND QUEUING utility is an asynchronous message delivery system.
It enables application programs to send and receive messages without concern
for the underlying communications system and without establishing a connection
between the application programs. Messaging and Queuing provides guaranteed
message delivery by using the database management systems (DBMS) used by
sending and receiving applications for persistent storage and transaction
management. The messages delivered using this product consist of application
data bytes which may contain any possible bit configuration. Messaging and
Queuing is supported on multiple computer systems (i.e., combinations of
computer hardware, operating system, DBMS, and communications system) and
sending and receiving application programs which communicate using this system
may execute on unlike computer systems.
The Messaging and Queuing utility may be used in many ways, including 1-to-1
asynchronous message delivery and is part of a 1-to-many publish-subscribe
system.
The DYNAMIC FORMATTER is a message reformatting utility. This utility handles
multiple message formats and executes on multiple computer systems. The Dynamic
Formatter transforms messages according to message format specifications and/or
by interpreting self-describing messages. It also supports user written
routines which can transform, insert, or remove data from a message.
The Dynamic Formatter may be used in many ways, including formatting messages
delivered via the Messaging and Queuing utility and transforming messaging for
evaluation by Rules Based Message Evaluation.
RULES BASED MESSAGE EVALUATION is a message evaluation utility. It tests a
message against a set of Boolean expressions and determines if the expressions
are True or False, based on the message's content. Each expression is referred
to as a "rule" and the rule is said to "fire" when the evaluation is true.
Consequently, a message may cause zero to N rules to fire depending on the
message's content and the set of rules used for evaluation. Rules Based Message
Evaluation executes on multiple computer systems
I-1
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Rules Based Message Evaluation may be used in many ways, including as a routing
mechanism to select destinations for messages and as a transaction
decomposition mechanism to select processing for a transaction message.
The three components, Messaging and Queuing, Dynamic Formatter, and Rules Based
Message Evaluation, may be used in combination to provide several types of
functionality, including anonymous publish-subscribe and as part of database
replication. The Software will support publish-subscribe communications among
anonymous applications and will consist of these functional components and
associated tools.
USE OF INDIVIDUAL COMPONENTS: The functional components will be well
integrated, but they will also be capable of operating independently of each
other and will provide functionality which can be used outside the scope of
publish-subscribe. Some examples of these uses are:
o 1-to-1 messaging
o data conversion and reformatting
o program logic
o workflow management
o transaction decomposition
ADMINISTRATION: Administrative domains will be defined and managed using a
global directory for each domain. Centralized administration and operations
management will be supported. Access to the underlying administrative data and
functions will be available through a set of APIs.
MONITORING: There will be a facility to monitor the operation of the Software
components and domains. Notification of errors and outages will be sent to the
monitoring facility.
GUI TOOLS: There will be and integrated set of tools for the complete
configuration, administration, operation, and monitoring of the Software
components and domains. The tools will be layered, so that access to underlying
data and functions is available through a set of APIs and user presentation is
implemented as a set of integrated Graphical User Interfaces.
PLATFORMS SUPPORTED: The functional components will all operate in a number of
different computer system environments. A list of the required environments
appears on the last page of this Exhibit 1.
SECURITY: Access to repositories used by the Software, such as queue
configuration, formats, and rules, and to application data will be restricted.
The Software will include verification points ("hooks") which will access an
external security package to check authorization and authentication. Access
will be restricted on a user/group id basis both vertically (e.g., view
only, change, create/delete) and horizontally (e.g., view user's data, group's
data, system data).
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MESSAGING & QUEUING
An asynchronous guaranteed message delivery system which enables application
programs to send and receive messages under transaction, management.
o cross platform: sending and receiving application programs will be able
to execute in unlike computer environments
o simple application program interface (API): simple APIs will be
available in C, C++ and COBOL to enable application programs to send and
receive messages
o message sequence: messages will be delivered in the sequence in which
they are sent; no messages will ever be lost or duplicated
o transaction management: messages will be sent and received under
application program transaction management, meaning that only committed
messages will be sent and only messages received and committed will be
considered delivered
* logical unit of work (LUW): when multiple messages are
sent in one transaction, called an LUW, they will be
delivered to a receiver only if all the messages in the
LUW are available for delivery
* LUW identifier: an application will be able to ▇▇▇▇
outgoing messages with an LUW identifier which will be
made available to the receiving program
o transparency: application message bytes may contain any bit
configuration
o dynamic queue expansion: it will be possible for a message queue to
expand at runtime; this will be an optional characteristic of a queue
o variable message length: messages of varying lengths will be stored on
sending and receiving nodes; the maximum message length will be expanded
to 1024K bytes
o multithreading support: it will be possible for application programs
which send or receive messages to be multithreaded (e.g., a sending
application can simultaneously execute multiple threads which all send
messages to the same receiving application)
o timeout: a sending or receiving application will be able to specify a
maximum time interval (message age) and messages which are not delivered
within that time interval will be routed to a timeout queue and not
delivered to their original destination
o error queue: messages which are undeliverable will be routed to an error
queue
o statistics gathering: statistics will be collected, such as messages
sent and/or received by an application, max/min/average queue depth,
traffic through a node, latency time for outgoing messages; it will be
possible to disable statistics gathering at runtime
o security: access to sending and receiving message queues and management
tools will be restricted
o GUI tool: one or more GUI tools will be built to support administration,
maintenance and performance monitoring. APIs will be provided to the
functions underlying these tools to enable developers to build their own
GUI tools to provide similar functionality. The APIs and GUI tools will
provide the following functionality:
o Configuration: create, modify, and view configuration
data, including communications settings
o Logical queue administration
* create, modify, and view queue definitions
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* disable and enable the read and/or write
capabilities of a queue
* disable and enable dynamic queue expansion
* set threshold queue size for dynamic queue
expansion
* reset queue pointers to the empty queue
state
* reset queue pointers to replay messages from
a specified message
* view the contents of a specific message in a
queue
o Performance monitoring
* disable and enable queue statistics
gathering
* view statistics
o Operations management
* view status of daemon processes and
logical communications links
* receive alerts such as queue depth exceeded
specified thresholds, communications
breakdowns, process execution failures
* start daemon processes
o The GUI tools will not contain SQL statements and will be
DBMS independent; they will use the provided APIs for
access to underlying data
o migration support: software will be provided to enable the smooth
transition from the existing ▇▇▇▇▇▇▇ ▇▇▇▇▇ Data Propagation Utility
("DPU") to Messaging and Queuing for application systems which are now
using the DPU in production. This software may include mapping modules
to enable existing application and DPU programs to access Messaging and
Queuing.
o integration with other components: facilities will be provided to assist
in the use of this component with the others in the suite. For example,
it will be possible to specify a format identifier for a logical queue
to indicate that all messages received from that queue should be
presented in a specified format.
The Messaging and Queuing component will use the Database Management System
(DBMS) employed by a sending or receiving application to provide persistent
storage and transaction management. In the same way, this component will
normally require the use of a communications system to provide data
communications between the computer systems where message sending and receiving
application programs execute. However, the component will be independent of any
specific DBMS or communications system and will be available and supported in
multiple computer system environments.
For the purpose of these specifications, a specific computer system environment
is a combination of computer hardware, operating system, DBMS, and
communications system.
DYNAMIC FORMATTER
A generalized message formatter which can be invoked to reformat a message
using table driven format definitions and handle complex message formats.
I-4
35
o message formats: before and after message formats supported will include
fixed and variable length flat, delimited, tagged, multi-part recursive
(specifically SWIFT), and self-describing messages
o data types: character and native data formats on all supported
platforms; big and little Endian integer, ASCII and EBCDIC character,
and internal decimal (packed decimal) will be correctly interpreted
o encryption: "hooks" for tag and message level encryption
o calculations: calculations using data contained in the message to
compute new values
o user defined functions: user specified functions will be invoked
o SQL generation: the formatter will be able to generate valid SQL
statements using the tags in a self-describing message
o API for self-describing messages: the formatter will be able to create
and interpret self-describing messages
o trace facility: a developer trace facility will be available for testing
and debugging format specifications
o security: access to format specifications will be restricted
o error handling: formatting errors will cause alerts to be sent to the
management tool
o GUI tool: one or more GUI tools will be built to support administration,
maintenance, and operation
o create, modify, and view individual formats
o create, modify, and view groups of formats
o receive alerts such as formatting and user function errors
RULES BASED MESSAGE EVALUATION
A generalized message evaluation module which tests a set of Boolean
expressions against a message's content and indicates which Boolean expressions
have been met. For each message the Rules Based Message Evaluation returns a
set of 0 to N identifiers. When the Rules Based Message Evaluation is used in
the Software suite, these identifiers are the subscriber destination-format
pairs for a published message.
o multiple destination-format pairs on a rule firing
o case sensitivity optional in predicate evaluation
o API for self-describing messages: the Rules Based Message Evaluation
will be able to interpret and process self-describing messages
o trace facility: a developer trace facility will be available for testing
and debugging rules specifications
o security: access to rule specifications will be restricted
o error handling: rules errors will cause alerts to be sent to the
management tool
o GUI tool: one or more GUI tools will be built to support administration,
maintenance, monitoring, and operation
o create, modify, and view individual rules
o create, modify, and view groups of rules
o receive alerts such as rules and user function errors
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36
PLATFORMS THAT RELEASE 0 WILL SUPPORT:
CUSTOMER Database Server
Hardware - OS Hardware - OS Communications
------------- ------------- --------------
Sun - SunOS 4.1.3 Sun - Sybase TCP/IP
Sun - SunOS 4.1.3 Sun - Sybase LU 6.2
Sun - Solaris 2.4 Sun - Sybase TCP/IP
Sun - Solaris 2.4 Sun - Sybase LU 6.2
Sun - Solaris 2.4 Sun - Oracle TCP/IP
Sun - Solaris 2.4 Sun - Oracle LU 6.2
The System Management and Administration Tool will function in an Intel/Windows
NT environment.
During the term of this Schedule, at CUSTOMER's request, and at no additional
charge, CONSULTANT shall provide to CUSTOMER two additional operating system
environments that Release 0 will support. Furthermore, at no additional charge,
CONSULTANT shall make available to CUSTOMER such applications provided to other
customers which result in Release 0 supporting other operating system
environments.
I-6
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EXHIBIT II
REQUIREMENTS TEAM AND CORE TEAM
A. The Core Team shall consist of CUSTOMER personnel designated by
CUSTOMER and the following CONSULTANT personnel whose time shall be dedicated
on the basis set forth next to their respective names:
Full Time Equivalent ("FTE")
----------------------------
On-Site Support
---------------
1. Paolo Pelizzoli 1.0
2. ▇▇▇ ▇▇▇ 1.0
3. ▇▇▇▇▇▇ ▇▇▇ 1.0
4. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (See Section 4.4 of the Schedule)
Denver Engineering
------------------
5. ▇▇▇▇▇ ▇▇▇▇▇▇▇ 1.0
6. ▇▇▇▇ ▇▇▇▇ 1.0
7. ▇▇▇ ▇▇▇▇▇▇ 1.0
8. ▇▇▇▇ ▇▇▇▇▇▇ 1.0
Rotating Engineers
------------------
9. ▇▇▇▇ ▇▇▇▇▇ 1.0
10. [TBD] 1.0
Support Management
------------------
11. ▇▇▇▇ ▇▇▇▇▇ 0.5
12. ▇▇▇▇▇ ▇'▇▇▇▇▇ 0.5
13. Technical Writer 1.0
----
Total 11.8 FTE
====
B. The Requirements Team shall consist of the members of the Core
Team as well as other CUSTOMER personnel, designated by the CUSTOMER Project
Manager in its sole discretion, who are associated with the following aspects
of CUSTOMER's business:
1. Client / Counterparty 6. Books and Records Added Value Overall
2. Global Funds Processing System 7. Corporation Action Strategic Event
3. Product Master Environment 8. Data Propagation Utilities Users
4. Trading 9. Application Architect
5. Global Information Services
In addition, CUSTOMER shall provide CONSULTANT with access to individuals
associated with Technical Risk Protection, Technical Strategy and Planning,
AUDIT, TBSG, as mutually agreed upon by the Project Managers.
II-1
38
EXHIBIT III
LICENSE
A. Granting and Scope of License.
1. Commencing, upon the delivery of Release 0 and the System Tool to
CUSTOMER, and continuing thereafter until terminated in accordance with
the provisions of this Schedule or the Agreement, CONSULTANT hereby
grants to CUSTOMER a non-exclusive, perpetual, world-wide, royalty
free, enterprise license to Release 0 and the System Tool, any
components thereof and any enhancements or updates thereto.
2. Commencing upon the delivery to CUSTOMER of the Specifications,
Release 0 and the System Tool at each stage of their respective
development and testing, and continuing thereafter until terminated in
accordance with the provisions of this Schedule or the Agreement,
CONSULTANT hereby grants to CUSTOMER a non-exclusive, perpetual,
world-wide, royalty free, enterprise license to use the Specifications,
Release 0 and the System Tool and any enhancements or updates thereto.
3. Any license granted to CUSTOMER by CONSULTANT hereunder shall
entitle CUSTOMER and its Affiliates and their respective clients and
such third parties engaged by CUSTOMER to use Release 0, the System Tool
and the Specifications and any enhancements or updates thereto in
connection with the development and testing of any product related
thereto which will be used by CUSTOMER's clients only for purposes of
communicating with CUSTOMER. CUSTOMER may make additional copies of
Release 0, the System Tool, the Specifications and any enhancements or
updates thereto and shall be entitled to maintain such copies off
CUSTOMER's premises for the purposes of safekeeping, without payment of
any additional fees. "Affiliates" shall mean any entity in which
CUSTOMER owns 20% or more of equity stock.
4. The rights granted to CUSTOMER are intended to facilitate the
free and unrestricted use and enjoyment by CUSTOMER of the products
developed under this Schedule in the conduct of its own business.
Nothing in this Schedule will be interpreted as granting CUSTOMER, or
any unaffiliated third party engaged by CUSTOMER, in any capacity, the
right to sell, or give away, any products developed under this Schedule,
either individually, or packaged with other products for use by any
unaffiliated third party, other than temporary use by CUSTOMER
contractors, who shall abide by the confidentiality requirements set
forth in Section 9 of the Agreement, to facilitate development and
testing applications utilizing those products in support of CUSTOMER's
or its Affiliates' business.
III-1
39
B. Confidentiality.
1. Subject to Section 6 above and Section A.3 of this Exhibit IV,
CUSTOMER acknowledges that CONSULTANT considers the Specifications,
Release 0 and the System Tool and any enhancements or updates thereto to
be proprietary to CONSULTANT. For as long as the Specifications, Release
0 and the System Tool and any enhancements or updates thereto are in
CUSTOMER's possession, CUSTOMER agrees that, subject to Section A.3 of
this Exhibit III, unless CUSTOMER has obtained CONSULTANT's prior
written consent, which consent shall not be unreasonably withheld,
CUSTOMER shall keep the Specifications, Release 0 and the System Tool
and any enhancements or updates thereto confidential and take reasonable
precautions to prevent disclosure of such deliverables to any person,
firm or enterprise other than CUSTOMER, its subsidiaries and affiliated
companies and its or their employees, agents, consultants, and clients.
2. Notwithstanding anything to the contrary set forth in Section B.1
of this Exhibit IV, CUSTOMER shall not be required to take any steps to
keep confidential and prevent disclosure of the Specifications, Release
0 and the System Tool and any enhancements or updates thereto, other
than those steps CUSTOMER normally takes to protect its own similar
confidential information. CUSTOMER's obligation of confidentiality shall
not apply to information which: (i) is obtained by CUSTOMER from a third
party without restrictions; (ii) is in the public domain; (iii) is
independently developed by CUSTOMER; or (iv) is required to be disclosed
by law or court order.
C. Installation.
As requested by CUSTOMER, CONSULTANT agrees to assist CUSTOMER, at no
additional charge to CUSTOMER, with the installation of Release 0, the
System Tool, and any enhancements or updates thereto for purposes of
verification of acceptability during the period covered by this
Schedule.
D. Training.
For Release 0, the System Tool, and any enhancements or updates
thereto, CONSULTANT shall provide the following training services to
CUSTOMER:
1. As requested by CUSTOMER, on-site training, orientation and
technical support (the "Training Services") sufficient to
familiarize CUSTOMER personnel with the function and use of
Release 0 and the System Tool, at no charge to CUSTOMER. Such
Training Services shall include, but will not be limited
to, familiarization with Release 0, the System Tool and any
enhancements or updates thereto, from the application, technical
and operational perspectives.
2. Additional training or orientation shall be furnished, at
CUSTOMER's request, at CONSULTANT's standard published charges
then in effect for same, unless otherwise mutually agreed upon.
III-2
40
E. Further Assurances.
CONSULTANT shall execute such further license agreements, maintenance
agreements, instruments, or documents, and shall take such further
actions, as may be reasonably necessary or desirable to confirm
CUSTOMER's license to the Specifications, Release 0 and the System Tool
and any enhancements or updates thereto.
III-3
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EXHIBIT IV
TIME AND MATERIAL SCHEDULE
A. CUSTOMER and CONSULTANT acknowledge and agree that charges for
CONSULTANT personnel during the development and testing phases of the
Specifications and Release 0 from April 1, 1995 to December 1, 1995 equal to
$575,300.39, $391,550.39 of which has been paid by CUSTOMER and $183,750.00 of
which shall be paid by CUSTOMER within 30 days of the execution of this
Schedule. The parties acknowledge and agree that the charges set forth above
represent all charges due and owing to CONSULTANT in connection with the
Specifications, Release 0, the System Tool and any enhancements or updates
thereto arising from April 1, 1995 to December 1, 1995.
B. Commencing on December 1, 1995, CONSULTANT shall receive $15,000
per month for each member of the Core Team participating on a full-time
dedicated basis during the requirements, specifications, design, coding and
testing phases of the Specifications, Release 0 and System Tool; provided,
however, CONSULTANT shall be paid on a pro rata basis for CONSULTANT personnel
dedicated on a part-time basis.
C. Commencing on December 1, 1995 reasonable, documented
out-of-pocket expenses, which have been preapproved in writing by CUSTOMER,
incurred by CONSULTANT for travel and/or living expenses while CONSULTANT
personnel are travelling to or at CUSTOMER's facility shall be paid by
CUSTOMER, which expenses shall not exceed $20,000 per month for CONSULTANT
personnel in the aggregate and shall not exceed $250,000 in the aggregate.
D. CONSULTANT shall receive $15,000 per month for each of the three
CONSULTANT personnel dedicated to providing support and maintenance services on
a full-time basis as set forth in Section 4.5.5 of the Schedule. Reasonable,
documented out-of-pocket expenses, which have been preapproved in writing by
CUSTOMER, incurred by CONSULTANT for travel and/or living expenses while
CONSULTANT personnel are travelling to or at CUSTOMER's facility shall be paid
by CUSTOMER, which expenses shall not exceed $5,000 per month for such
personnel in the aggregate.
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EXHIBIT V
FORM OF ESCROW AGREEMENT
V-1
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ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") dated as of
February 6, 1996 by and among NEON SOFTWARE, INC., a corporation organized and
existing under the laws of the State of Illinois, and having its principal
offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter
the "Consultant"); ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED, a
corporation organized and existing under the laws of the State of Delaware and
having its principal offices at World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇ (hereinafter the "Customer"); and FORT ▇▇▇▇ ESCROW SERVICES, INC.,
organized and existing under the laws of the State of Georgia and having its
principal offices at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ (hereinafter
the "Escrow Agent").
RECITALS:
A Consultant and Customer have entered into a Master
Agreement for Professional Services dated as of March 1, 1995 and Fixed Price
Schedule No. NTP501368 (the "Schedule") of the Master Agreement dated April 1,
1995 (the Master Agreement and the Schedule as the same may be amended or
supplemented from time to time shall be referred to collectively herein as the
"Master Agreement") pursuant to which Consultant has licensed to Customer
Release 0, the System Tool and the Specifications, as defined in the Master
Agreement, including improvements, enhancements and updates from time to time
developed by Consultant, and such additional program changes as Customer may
order from Consultant from time to time, and all documentation therefor
developed by Consultant (hereinafter collectively referred to herein as the
"Software").
B It is the policy of Consultant not to disclose the
source codes and related documentation (hereinafter collectively referred to as
the "Source Code") for the Software to its customers, except as provided in an
applicable Escrow Agreement.
C Consultant and Customer agree that upon the
occurrence of certain events described in Section 3(a) hereof, Customer shall
be able to obtain the Source Code and all revisions, enhancements and Updates
thereof, and accordingly Consultant agrees to deliver said Source Code to
Escrow Agent. The Parties hereto intend this Agreement to be supplementary to
the Master Agreement pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code, Section
365(n).
NOW, THEREFORE, in consideration of the mutual covenants
exchanged herein and for other valuable consideration, the adequacy and receipt
of which are hereby acknowledged, Consultant, Customer and Escrow Agent hereby
agree as follows:
AGREEMENT
1. DEPOSITS
Escrow Agent, as a safekeeping (escrow) agent, agrees to
accept from Consultant the Source Code and all Updates thereof as provided in
Section (2) hereof. Promptly upon execution of this Agreement, Consultant will
deposit into escrow a copy of the latest version of the Source Code. Escrow
Agent will issue to Consultant a receipt for the Source Code upon delivery and
will notify Customer of such deposit and of each subsequent deposit thereafter.
The Source Code held by Escrow Agent shall remain the exclusive property of
Consultant, and Escrow Agent shall not use the Source Code or disclose the same
to any third party except as specifically provided for herein. Escrow Agent
will hold the Source Code in safekeeping at its offices herein above indicated
unless and until Escrow Agent receives notice pursuant to the terms of this
Agreement that Escrow Agent is to deliver the Source Code to Customer or
Consultant, in which case Escrow Agent shall deliver the Source Code to the
party identified therein, subject, however, to the provisions of this Escrow
Agreement.
2. REPRESENTATIONS OF CONSULTANT TO CUSTOMER
Consultant represents and warrants to Customer that (i) the
material delivered to Escrow Agent pursuant to this Escrow Agreement
constitutes, and shall continue to constitute, a complete and accurate copy of
the Source Code and documentation for the Software licensed to Customer
pursuant to the Master Agreement; (ii) the Source
44
Code delivered to Escrow Agent is in a form suitable for reproduction by
computer and photocopy equipment, and consists of a full source code language
statement of the program or programs comprising the Software and complete
program maintenance documentation, including all flow charts, schematics and
annotations which comprise the precoding detail design specifications and all
other material necessary to allow a reasonably skilled third party programmer
or analyst to maintain or enhance the Software and use the Specifications to
develop middleware software without the help of any other person of reference
to any other material; (iii) Consultant will promptly at each stage of
development of the Software and the Specifications and upon the creation of any
updates or enhancements to Release 0 supplement the escrow deposit delivered
hereunder with all updates or other changes and all related documents so that
the Source Code constitutes, at all times, a human-readable program for the
current releases of the Software, so that the Specifications on deposit with
the Escrow Agent are at all times consistent with their then current stage of
development.
3. NOTICE OF DEFAULT
(a) Consultant shall be deemed to be in default of its
responsibilities to Customer if (i) Consultant fails, at any time, to correct
any malfunction, defect or nonconformity in the Software which prevents such
Software from functioning in accordance with the applicable specifications,
documentation, performance criteria and other warranties and descriptions
provided for in the Master Agreement, within ten (10) days after Customer's
notification to Consultant specifying in reasonable detail in what respect the
Software fails to conform; or (ii) Consultant fails to discharge any of its
obligations with respect to the Software in accordance with the warranties or
other standards for maintenance set forth in the Master Agreement and Schedule
or any maintenance agreement from time to time in effect between Consultant and
Customer, within ten (10) days after Customer's notification specifying in
reasonable detail in what respects the Software is not properly being
maintained; or (iii) the sale, assignment, or other transfer by Consultant,
without the prior written consent of Customer, of such of Consultant's rights
in the Software as would prevent Consultant from the discharge of its
obligations with respect to the performance of the Software under the Master
Agreement or the ability of Customer to use the Specifications to create
middleware software or from the discharge of its maintenance obligations with
respect to the Software unless such sale, assignment or transfer is expressly
permitted by the provisions of the Master Agreement and Schedule; or (iv)
Consultant becomes insolvent, makes a general assignment for the benefit of
creditors, files a voluntary petition of bankruptcy, suffers or permits the
appointment of a receiver for its business or assets, becomes, subject to any
proceeding under any bankruptcy or insolvency law, whether domestic or foreign,
or has wound up or liquidated its business voluntarily or otherwise; or (v) if
at any time during the term of the Schedule, ▇▇▇▇ ▇▇▇▇ and/or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
ceases to play an active role in Consultant's development and testing of the
Specifications, Release 0 and the System Tool and such lack of active
involvement has not been cured in accordance with Section 13 of the Schedule.
Customer shall give written notice (the "Notice of Default") to Escrow Agent of
any default by Consultant. The Notice of Default shall, at a minimum (i) be
labeled "Notice of Default", (ii) identify the Master Agreement and this
Escrow Agreement, (iii) specify the nature of default, (iv) identify the
Source Code with specificity, and (v) demand the delivery of the Source Code
to Customer.
(b) Upon receipt of the Notice of Default, Escrow Agent
shall immediately send a copy thereof to Consultant by express courier delivery
or personal delivery. If Consultant desires to dispute the Notice of Default,
Consultant shall, within five (5) days after the date of the Notice of Default,
deliver to Escrow Agent a sworn statement (the "Affidavit") stating that no
default has occurred, whereupon the provisions of Paragraph 5 hereof will
become applicable. If Escrow Agent receives the Affidavit within said five (5)
day period, Escrow Agent shall send a copy thereof to Customer by hand delivery
or express courier (i.e. Federal Express) delivery, and Escrow Agent shall
continue to hold the Source Code in accordance with this Escrow Agreement. If
Escrow Agent does not receive the Affidavit within said five (5) day period,
Escrow Agent is authorized and directed to deliver the Source Code to Customer.
(c) Upon any release to Customer of the Source Code in
accordance with the terms of this Agreement, Customer shall be granted a
license to use the Source Code in a manner limited to maintaining or modifying
the Software as it deems necessary and to use the Specifications to create
middleware software. Such license shall be subject to (i) Customer's
obligations to any fees that are due and owing under the Master Agreement as
of the pay effective date of termination and (ii) compliance by Customer with
its covenants regarding confidentiality contained in the Schedule.
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45
4. NOTICE OF TERMINATION
Upon the termination of Customer's right to use the Software,
Consultant may obtain the return of the Source Code by furnishing written
notice of the termination, agreed to by an authorized officer of Customer,
whose signature has been notarized.
5. DISPUTES; GOVERNING LAW
(a) In the event that Consultant files the Affidavit with
Escrow Agent in the manner and within time period set forth in Paragraph 3(b)
hereof, and Customer shall fail to agree that the Master Agreement has been
terminated, Escrow Agent shall not release the Source Code to either party
except in accordance with (i) an order of a court of law, or (ii) receipt of an
agreement with the authorized and notarized signatures of authorized officers
of both Consultant and Customer, authorizing the release of the Source Code to
one of the parties hereto.
(b) Disputes arising under this Escrow Agreement shall be
settled by a court of law in New York City, New York. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to its conflicts of laws principles.
6. PAYMENTS TO ESCROW AGENT
As payment for its services rendered hereunder, Escrow Agent
shall receive a one-time Initialization Fee of $765 and a Maintenance Fee of
$900 per year to be paid by Consultant. Consultant shall also pay $150 for each
additional update. Consultant shall also pay Escrow Agent any increases in fees
imposed by Escrow Agent on an annual basis upon notice to Consultant. Escrow
Agent shall promptly advise Customer of Consultant's failure to pay such fees
in a timely manner. Customer shall have the right to pay Escrow Agent its fees,
and may offset such fees against any other fees due and owing to Consultant
under the Master Agreement or otherwise.
7. TERMINATION
The Escrow Agreement shall continue in effect until (i) the
expiration of all outstanding Schedules of the Master Agreement or (ii) the
termination of any disputes hereunder in accordance with Section 5 above.
8. WAIVER, AMENDMENT OR MODIFICATION; SEVERABILITY; ENTIRE
AGREEMENT
This Escrow Agreement shall not be waived, amended, or
modified except by the written agreement of all of the parties hereto. Any
invalidity, in whole or in part, of any provision of this Escrow Agreement
shall not affect the validity of any other of its provisions. The parties
hereto will substitute a new clause for the invalid, illegal or unenforceable
clause of like economic intent and effect. This Escrow Agreement, together with
the Master Agreement is the entire agreement between the parties hereto
relating to the subject matter hereof.
9. NOTICES
Except as otherwise provided herein all notices required to be
given hereunder shall be in writing and shall be given by certified registered
mail, return receipt requested, or by personal delivery or express mail, to the
parties at their respective address hereinabove written, or at such other
address as shall be specified herein above in writing to all other parties.
10. LIMITATIONS ON ESCROW AGENT'S RESPONSIBILITY AND LIABILITY
(a) Escrow Agent shall not be obligated or required to
examine or inspect the Source Code, or any of the additions thereto. Escrow
Agent's obligation for safekeeping shall be limited to providing the same
degree of care for the Source Code as it maintains for its valuable documents
and those of its clients lodged in the same location with appropriate
atmospheric or other safeguards. However, the parties agree and acknowledge
that Escrow Agent shall not be responsible for any loss or damage to any of the
Source Code due to changes in such atmospheric conditions (including, but not
limited to, failure of the air conditioning system), unless such changes are
proximately caused by the gross negligence or malfeasance of Escrow Agent.
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46
(b) Escrow Agent shall be protected in acting upon any written
notice, request, waiver, consent, receipt or other paper or document furnished
to it, not only in assuming its due execution and the validity and
effectiveness of its provisions but also as to the truth and acceptability of
any information therein contained, which it in good faith believes to be
genuine and what it purports to be.
(c) In no event shall Escrow Agent be liable for any act or
failure to act under the provisions of this Agreement except where its acts are
the result of its gross negligence or malfeasance. Escrow Agent shall not have
duties except those which are expressly set forth herein, and it shall not be
bound by any notice of a claim, or demand with respect thereto, or any waiver,
modification, amendment, termination or recision of this Escrow Agreement,
unless in writing and signed by both Customer and Consultant and, if its duties
are affected, unless it shall have given its prior written consent thereto.
(d) The parties to this Escrow Agreement hereby jointly and
severally indemnify Escrow Agent against any loss, liability, or damage (other
than any caused by the gross negligence or malfeasance of Escrow Agent),
including reasonable costs of litigation and counsel fees, arising from and in
connection with the performance of its duties under this Escrow Agreement.
11. INSPECTION
Customer shall have the right at any time to contact Escrow Agent
for purposes of confirming the existence of the Source Code and documentation
and all updates and enhancements thereto, and examining the Source Code and
other items in escrow.
12. SECTION 365(n) OF THE BANKRUPTCY CODE
Consultant expressly acknowledges that this Escrow Agreement
is supplementary to the Master Agreement pursuant to 11 United States
Bankruptcy Code, Section 365(n).
13. COUNTERPARTS
This Agreement may be signed in counterparts, each of which
shall be deemed an original.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be
duly executed as of the year and date first above written.
▇▇▇▇▇▇▇ LYNCH, PIERCE,
▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
NEON SOFTWARE, INC.
By /s/ ILLEGIBLE
-------------------------------
Name: Illegible
Title: CEO
FORT ▇▇▇▇ ESCROW SERVICES, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. Account Manager
4
