EXHIBIT 10.24
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
LICENSE AGREEMENT
This License Agreement ("Agreement") is by and between Bull HN Information
Systems Inc., a Delaware corporation, with offices at 000 Xxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 by and through its Integris division ("Bull HN")
and Peritus Software Services Inc., a Massachusetts corporation with offices at
000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000 ("Peritus") and is
effective as of July 29, 1996 (the "Effective Date").
Peritus is the owner of certain software sometimes referred to as Auto
Enhancer/2000 and certain processes and methodologies sometimes referred to as
Automate:2000.
Bull HN desires a license to use and to market such software, processes and
methodologies to provide Year 2000 Services to GCOS 7 Customers and GCOS 8
Customers;
Bull HN has developed or will develop certain software sometimes referred to as
GCOS 7 and GCOS 8 Front Ends; and
Peritus desires a license to use and to market such GCOS 8 Front Ends.
In consideration of the foregoing and the mutual covenants contained herein,
Bull HN and Peritus agree as follows:
ARTICLE 1 - DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
1.1 "Bull" shall mean Compagnie des Machines Bull, a French company and all of
its subsidiaries, regardless of tier.
1.2 "Bull Intellectual Property Rights" shall mean all rights, title and
interests, including patent, trade secret, trademark, mask works and copyright
rights which Bull has or acquires in the Bull HN Licensed Products.
1.3 "Changes" shall mean improvements, enhancements, modifications, upgrades,
corrections, alterations, revisions, adaptations, updates, translations,
versions, releases, derivations and extensions which are made to Licensed
Products or to Peritus Licensed Technology.
1.4 "Computer Program(s)" shall mean an ordered series of instructions or
statements, in any form, for controlling the operation of a data processor to
execute a process to be performed on data, including all data associated
therewith.
1.4.1 "Customer Computer Program" shall mean Computer Programs treated or
processed by Bull, Peritus or a Distributor using the Peritus Licensed
Products and/or the Peritus Licensed Technology.
1.5 "Customer" shall mean (i) an end-user or a prospective end-user of Licensed
Products marketed by Bull, Peritus or a Distributor or (ii) an end-user or
prospective end user of Computer Programs for whom Bull, Peritus or a
Distributor provides or offers to provide Year 2000 Services.
1.5.1 "GCOS 8 Customer" shall mean a Customer who operates a mainframe
computer running Bull's GCOS 8 operating system.
1.5.2 "GCOS 7 Customer" shall mean a Customer who operates a mainframe
computer running Bull's GCOS 7 operating system.
1.6 "Distributor" shall mean any legal entity or person who during the Term has
been granted a sublicense (i) by Bull to use or market the Peritus Licensed
Products and/or Peritus Licensed Technology and/or to provide Year 2000 Services
or (ii) by Peritus to use or market the Licensed Products and/or Peritus
Licensed Technology or to provide Year 2000 Services.
1.7 "Front Ends" shall mean software programs and modules that convert a
particular type of software code into PIL, which is utilized by the Peritus
Licensed Software.
1.8 "Licensed Products" shall mean Bull HN Licensed Products and Peritus
Licensed Products.
1.8.1 "Bull HN Licensed Products" shall mean Bull HN Licensed Software
and Bull HN Related Materials collectively.
1.8.2 "Peritus Licensed Products" shall mean Peritus Licensed Software and
Peritus Related Materials collectively.
1.9 "Licensed Software" shall mean the Computer Program(s) described in Exhibits
A1 and A2. Such Licensed Software includes, but is not limited to, any version
running on any computer system, in source code and object code forms on magnetic
media and in human readable form, and all Changes to Licensed Software developed
or acquired by the licensor hereunder during the Term. Licensed Software shall
also include Computer Program(s) which are developed or acquired by the licensor
hereunder to provide equivalent or added functionality, to supplement or to
replace the Computer Program(s)
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in whole or in part which comprise the Licensed Software and any Changes made
thereto.
1.9.1 "Bull HN Licensed Software" shall mean the Computer Programs
described in Exhibit A2.
1.9.2 "Peritus Licensed Software" shall mean the Computer Programs
described in Exhibit A1.
1.10 "LOC" or "Lines of Code" shall mean an 80 character string of computer
software code that is not solely a comment or is not solely a blank line. A LOC
shall be counted only once regardless of how may times it is treated or
processed using the Peritus Licensed Products and/or the Peritus Licensed
Technology.
1.11 "Party" in singular or plural usage, shall mean Bull HN and/or Peritus as
indicated by the context.
1.12 "Peritus Intellectual Property Rights" shall mean all rights, title and
interests, including patent, trade secret, trademark, mask works and copyright
rights which Peritus has or acquires in the Peritus Licensed Products and the
Peritus Licensed Technology.
1.13 "Peritus Intermediate Language" or "PIL" shall mean the computer software
language used by the Peritus Licensed Software to treat or process Computer
Programs.
1.14 "Peritus Licensed Technology" shall mean the Automate:2000 Requirements
Specifications, the Automate:2000 Factory Flow Chart and other Peritus processes
and methodologies set forth on Exhibit A3.
1.15 "Related Materials" shall mean information in written or documentary form,
human readable form or machine readable form in any media, used or useful in or
relating to the installation, use, operation, testing, debugging, support,
maintenance, demonstration or marketing of the Licensed Software or the Peritus
Licensed Technology, all of which are more completely identified in Exhibit B of
this Agreement.
1.16 "Subsidiary" shall mean a corporation, company, or other entity, regardless
of tier, 50% or more of whose outstanding securities representing the right,
other than as affected by events of default, to vote for the election of
directors or other governing authorities, which are now or hereafter owned or
controlled, directly or indirectly, by Peritus or Bull or by another Subsidiary
of Peritus or Bull regardless of tier; but such corporation, company, or other
entity shall be deemed to be a Subsidiary only so long as such ownership or
control exists.
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1.17 "Term" shall mean the period commencing on the Effective Date and
continuing until December 31, 2001 unless otherwise extended by mutual written
agreement of the Parties or until this Agreement is otherwise terminated in
accordance with its provisions.
1.18 "Year 2000 Services" shall mean services provided by Bull HN, Bull, Peritus
or Distributors to Customers using Peritus Licensed Products and Peritus
Licensed Technology that identify portions of Customer Computer Programs that
may cause Year 2000 type errors and/or correcting such identified portions so as
so prevent the occurrence of Year 2000 type errors.
ARTICLE 2 - LICENSE GRANTS, DELIVERY AND YEAR 2000 SERVICES
2.1 Peritus Licensed Products and Peritus Licensed Technology
2.1.1 Peritus hereby grants to Bull, under Peritus' Intellectual
Property Rights, a license to use the Peritus Licensed Products and
Peritus Licensed Technology in connection with mainframe computers
running GCOS 7 or GCOS 8 operating systems. Such license to use shall
include (i) the rights to utilize for internal business purposes,
market, make Changes, copy, display, demonstrate and prepare
derivative works, (ii) the right to sublicense the Peritus Licensed
Products and Peritus Technology to Customers for their own internal
use and (iii) the right to provide Year 2000 Services to Customers.
2.1.1.1 All derivative works prepared by Bull hereunder shall
be owned by Bull, provided however that Peritus shall retain all
of its right, title and interest in the Peritus Licensed
Products and the Peritus Licensed Technology.
2.1.1.2 Bull agrees to and hereby grants to Peritus a non-
exclusive, non-transferable, perpetual, fully paid up, royalty
free license for such derivative works.
2.1.2 Bull's right to grant sublicenses set forth in Article 2.1.1
shall include the right to grant sublicenses to Distributors of the
same or lesser scope as the license granted to Bull, provided however
that Distributors shall have no right to the following:
2.1.2.1 Make Changes.
2.1.2.2 Transfer or provide the Peritus Licensed Products or
Peritus Licensed Technology to anyone other than
Customers for their own internal use.
2.1.2.3 Have access to source code.
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Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
2.1.3 The licenses granted in Article 2.1.1 shall be worldwide and
exclusive as to all GCOS 7 Customers and all GCOS 8 Customers except
for those GCOS 8 Customers in Spain where such licenses shall be
nonexclusive.
2.1.4 All sublicenses granted to Distributors and/or Customers shall be in
writing signed by such Distributor or Customer, as applicable. Such
sublicenses shall be on terms and conditions substantially similar to the
terms and conditions upon which Bull licenses its own products.
2.1.4.1 Prior to sublicensing the Peritus Licensed Products and/or
Peritus Licensed Technology to Distributors or Customers in India,
Turkey or China, Bull will provide written notice to Peritus
including the name of the proposed Distributor or Customer, the
location of such Distributor or Customer and the terms of the
agreement applicable to the protection of intellectual property
rights. Peritus will notify Bull in writing ************
************** following receipt of such notice if it objects to the
licensing of the Peritus Licensed Products and/or Peritus Licensed
Technology in such country under the terms proposed. The Parties will
use reasonable efforts to negotiate a resolution of any such
objections within **************** following Bull's receipt of
Peritus' notice of objection. If Peritus does not provide any notice
of objection within such ******************* period, Bull shall have
the right to sublicense the Peritus Licensed Products and/or Peritus
Licensed Technology to the distributor or Customer under the proposed
terms.
2.1.5 Peritus will deliver the Peritus Licensed Products and the Peritus
Licensed Technology to Bull HN at the address set forth above within ten
(10) days following the Effective Date. Peritus shall also promptly deliver
to Bull HN, at no charge, all Changes to the Peritus Licensed Products and
Peritus Licensed Technology made or acquired by Peritus during the Term.
2.1.5.1 In the event that Peritus and Bull mutually agree that
Peritus incorporates Changes to the Peritus Licensed Products and/or
the Peritus Licensed Technology that prevent Bull from using the
Peritus Licensed Products and/or the Peritus Licensed Technology to
provide Year 2000 Services to GCOS 7 Customers or GCOS 8 Customers as
contemplated by this Agreement and as Bull had been providing such
Year 2000 Services prior to the incorporation of such Changes, Bull
will so notify Peritus in writing, and Peritus will within
******************** following receipt of such notice, deliver to
Bull a complete copy of the source code version of the
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Peritus Licensed Products and the Peritus Licensed Technology which
do not incorporate such Changes. Bull shall have the right and
Peritus hereby grants to Bull a license to use such source code
version to exercise all of its rights hereunder and perform its
obligations to its Customers.
2.2 Bull HN Licensed Products
2.2.1 Bull HN hereby grants to Peritus, under Bull's Intellectual
Property Rights, a royalty-free license to use the Bull HN Licensed
Products. Such license to use shall include (i) the rights to utilize
for internal business purposes, market, make Changes, copy, display,
demonstrate and prepare derivative works including the right to
incorporate the Bull HN Licensed Products into the Peritus Licensed
Products, (ii) the right to sublicense the Bull HN Licensed Products
to GCOS 8 Customers in Spain for their own internal use and (iii) the
right to provide Year 2000 Services to GCOS 8 Customers in Spain.
2.2.2 Peritus' right to grant sublicenses set forth in Article 2.2.1
shall include the right to grant sublicenses to Distributors,
regardless of tier, of the same or lesser scope as the license
granted to Peritus, provided however that Distributors shall have no
right to prepare derivative works of the Bull HN Licensed Products.
2.2.3 All sublicenses granted to Distributors and/or Customers shall
be in writing signed by such Distributor or Customer, as applicable.
Such sublicenses shall be on terms and conditions substantially
similar to the terms and conditions upon which Peritus licenses its
own products.
2.2.4 Bull HN will deliver to Peritus the Bull HN Licensed Products
at the address set forth above, upon availability of the Bull HN
Licensed Products for alpha and/or beta testing. Bull HN shall
promptly deliver to Peritus, at no charge, all Changes to the Bull HN
Licensed Products made or acquired by Bull HN during the Term at the
address set forth above.
2.3 Year 2000 Services
2.3.1 Bull will provide Year 2000 Services to Customers, either
directly or through Distributors only under the terms of a written
agreement executed by the Customer. Such agreement will include
provisions legally sufficient to (i) disclaim any warranties on
behalf of Peritus and Bull, including without limitation the implied
warranties of merchantability and fitness for a particular purpose
and (ii) disclaim liability for any consequential, incidental or
special damages.
2.3.2 As part of its Year 2000 Services, Bull or its Distributors
will maintain, or will require the Customer to maintain a copy of the
Customer's unmodified source code.
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Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
ARTICLE 3 - ROYALTIES
3.1 In consideration of the licenses granted in Article 2.1, Bull shall
during the Term make payments to Peritus as set forth in Exhibit C.
3.2 Only licenses to Customers shall be royalty bearing and consequently
there shall be no obligation to pay royalties for rights granted to Distributors
for their right to sublicense the Peritus Licensed Products and/or Peritus
Licensed Technology.
3.3 There are ****************************************.
3.3.1 Sublicenses. Royalties for sublicenses of Peritus Licensed
Products and Peritus Licensed Technology to Customers are earned by
Peritus at the time of the grant of such sublicense by Bull to Customers
and are payable to Peritus pursuant to Article 4.
3.3.2 Year 2000 Services. Fees for the use by Bull or Distributors of
the Peritus Licensed Products and/or the Peritus Licensed Technology to
provide Year 2000 Services or for Distributors' internal use are earned
by Peritus when a Customer accepts in writing the Customer Computer
Programs for final integration and acceptance testing and are payable to
Peritus pursuant to Article 4.
3.4 Except as otherwise mutually agreed in writing by the Parties, there
shall be ********************** for upgrades and/or new releases of the Peritus
Licensed Products or Peritus Licensed Technology.
3.5 There shall be ******************** payable to Peritus for Bull's or
Distributors' use of the Peritus Licensed Products or Peritus Licensed
Technology for demonstration use.
3.6 Each sublicense for the Peritus Licensed Products and/or Peritus
Licensed Technology granted to Customers shall become fully paid-up as to
Peritus upon payment made to Peritus pursuant to Paragraph 3.1 above.
3.7 Upon written approval of Peritus, such approval not to be unreasonably
withheld, any of the Bull entities may at its option report and make payments
directly to Peritus, or to a Subsidiary of Peritus. Any additional requirements
related to such direct payments shall be negotiated directly between such Bull
entity and Peritus.
-7-
3.8 Peritus shall be responsible for all income related-taxes imposed on, or
withheld from, royalty payments earned by Peritus pursuant to this Agreement. In
the event that payments to Peritus pursuant to this Agreement originate from a
different country than that country where payments are to be made the following
shall apply:
(i) Payments shall be made by Bull to Peritus net of withholding
taxes due under the originating country's law. Any reduced rates of
withholding provided by a tax treaty will be applied after receiving the
approval of the authorities of the local country, if required.
(ii) Peritus agrees to supply Bull, in due time, with the duly signed
tax forms which are required to take advantage of the reduced
withholding tax rate provided for by any such tax treaties. Such tax
forms shall be supplied once a calendar year prior to any payment to be
made hereunder during such calendar year.
(iii) Should Peritus not supply in due time the tax forms referred to
under subparagraph (ii) above, Bull shall be entitled to withhold from
gross payment, the domestic withholding tax at source provided for by
the then applicable domestic law, with regard to this type of payment.
ARTICLE 4 - REPORTING AND PAYMENT REQUIREMENTS
4.1 Bull and Peritus shall keep, and shall require Distributors to keep,
true and accurate records relating to the Licensed Products and the Peritus
Licensed Technology to the extent necessary for making reports and payments
required by the terms of this Agreement. Such records shall be open for
inspection by a mutually agreed-upon Certified Public Accountant (or the
equivalent) during the Term and for one (1) year after termination of this
Agreement, during usual business hours, but not more often than once a year.
Such audit shall relate only to the current and immediately preceding calendar
year.
4.2 Within 45 days after the end of each month for each year during which
payments are due under this Agreement, Bull shall furnish written reports to
Peritus setting forth (i) for sublicenses granted to Customers, the payments due
Peritus during the preceding calendar month and (ii) for Year 2000 Services
provided to Customers, (1) the LOC treated or processed by Bull or a Distributor
during the preceding calendar month and (2) the date upon which any Customer
accepted in writing the Customer Computer Programs for final integration and
acceptance testing. All reports shall be in the format set forth in Exhibit C.
Except as provided in this Article and in Article 4.3, such reports shall
include a remittance covering the payments then due. If a Bull entity exercises
the option specified in Paragraph 3.7, such Bull entity shall also furnish a
report to Peritus or a Subsidiary of Peritus, if applicable, setting forth the
payments due Peritus during the
-8-
preceding calendar month pursuant to this Agreement in each such Bull entity
marketing territory. Each report from such Bull entity reporting directly to
Peritus shall include a remittance covering the payments then due from that
particular Bull entity.
Such reports shall be sent to Peritus at the following address:
Peritus Software Services Inc.
Contract Administrator
000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
4.3 Unless otherwise mutually agreed to in writing, all payments required
under this Agreement shall be made in United States dollars. If a currency
conversion is necessary the conversion rate shall be that rate quoted in the
Wall Street Journal (i) on the first business day following the calendar month
for which royalty payments are being made and (ii) on the date of Peritus'
invoice for all other payments.
4.4 Within 45 days after the end of each month for each year during the Term
of this Agreement, Peritus shall furnish written reports to Bull HN setting
forth (i) for sublicenses of Bull HN Licensed Products granted to Customers
during the preceding calendar month, the name and location of such Customers and
(ii) for Year 2000 Services provided to Customers, the name and location of such
Customer.
4.5 Information obtained from the records and reports provided under this
Article 4 shall be held in confidence by the receiving Party, and such Certified
Public Accountant, and is not to be used for any other purpose except to verify
the accuracy of the reports, royalties and fees paid hereunder.
ARTICLE 5 - MARKETING
5.1 It is specifically agreed that Bull and Distributors may use but are not
obligated to use any of Peritus' trademarks in marketing the Peritus Licensed
Products, Peritus Licensed Technology and the Year 2000 Services.
5.2 Although Bull intends to use reasonable efforts in marketing the Peritus
Licensed Products, Peritus Licensed Technology and the Year 2000 Services, the
extent and nature of any such marketing efforts shall be determined solely by
Bull in the exercise of its business judgment. It is understood that there are
no minimum marketing obligations under this Agreement.
ARTICLE 6 - RESERVED
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Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
ARTICLE 7 - SUPPORT AND MAINTENANCE OF LICENSED SOFTWARE
7.1 Peritus Licensed Products and Peritus Licensed Technology
7.1.1 Peritus will provide technical support to Bull from 8:00 am to
5:00 p.m. EST/EDT.
7.1.2 Peritus agrees that during the Term, Peritus shall, at Peritus'
expense, maintain, at a minimum, the current and the immediately
preceding release of the Peritus Licensed Software. Should Peritus
become aware of any errors or be notified by Bull of any errors in the
Peritus Licensed Software, Peritus shall promptly take appropriate
measures to correct such errors in accordance with the schedule set
forth below. Bull may also request technical advice concerning the
installation or the operation of Peritus Licensed Products or Peritus
Licensed Technology, or may propose modification(s) thereto. Peritus
will categorize and prioritize the request for support according to the
Request Table below.
Peritus will assign, within the "Assignment Time" listed below, a technically
qualified person to address the request for support. Peritus does not guarantee
that a problem or concern that is the subject matter of a request can be
resolved. However, Peritus will make reasonable efforts to resolve all errors
and defects and address Bull's concerns arising from the request in accordance
with Article 7.1.3. Notwithstanding the foregoing, Peritus in its sole
discretion, may decide whether to seek to attempt to resolve or address a
request for an enhancement (i.e. a priority 4 request). Peritus shall maintain
records of all support requests and the responses thereto, which shall be open
for inspection by Bull.
Request Table
-------------
Priority Definition Assignment Time
-------- ---------- ---------------
1 ************************* *******
2 ************************* *******
3 ********************* *******
4 ******************* *******
7.1.3 Peritus will use its best efforts to resolve errors and defects in
accordance with the following:
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Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
(i) Priority 1: Peritus will use its best efforts to provide a work
around solution within ************** after becoming aware of such
problems, and provide a permanent correction to Bull within
***************************.
(ii) Priority 2: Peritus will use all reasonable efforts to provide
the work around within *************** after becoming aware of such
problem and provide a permanent correction within *********************
or at a later time as may be agreed to in writing by Bull.
(iii) Priority 3 and 4: Peritus will verify and respond to such
problems within **************** after becoming aware of such problem
and a correction by Peritus shall be provided in its next release or
update of the Peritus Licensed Software or Peritus Licensed Technology,
as applicable.
7.1.4 Peritus will provide update releases to the Peritus Licensed Products
and Peritus Licensed Technology which may include some or all of the following;
(i) defect (bug) fixes, (ii) new or modified functionality, or (iii) new Front-
Ends. Peritus will also provide release notes documenting changes. Peritus will
provide Bull with at least ******************************** of any new releases
or upgrades that contain new or modified functionality to the Peritus Licensed
Products and/or the Peritus Licensed Technology.
7.1.5 The support of the Peritus Licensed Software sublicensed to Distributors
or Customers shall be provided as follows:
(i) Bull shall be responsible for providing First Level Support. For
the purposes of this Paragraph "First Level Support" shall mean direct
contact with the Distributors and/or Customers as applicable, handling
inquiries, routine problem diagnosis and resolution or, in the event a
problem cannot be resolved, the obtaining of appropriate documentation
of such inquiry or problem for referral to Peritus.
(ii) Peritus shall be responsible for providing Second Level Support.
For purposes of this paragraph "Second Level Support" shall mean the
provision of personnel with such special training and experience as may
be, on a best efforts basis, appropriate to handle Distributor or
Customer inquiries, non-routine problem diagnosis and resolution, etc.,
upon referral by Bull's First Level Support personnel. Second Level
Support may also mean, if requested by Bull, direct contact with a
Distributor or Customer in certain instances.
-11-
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
7.1.6 Peritus shall, throughout the Term, make such Changes to the
Licensed Software as may be necessary to make it competitive with other
vendors' Computer Programs which are functionally equivalent to the
Licensed Software.
7.1.7 There shall be ******************** to Bull for the maintenance
and support set forth herein.
7.2 Bull HN Licensed Products
7.2.1 Bull HN will provide reasonable maintenance and support to
Peritus for the Bull HN Licensed Products Monday to Friday 8:00 am to
5:00 p.m. MST, except for Bull HN scheduled holidays.
7.2.2 Should Bull HN become aware of any errors or be notified by
Peritus of any errors in the Bull HN Licensed Software, Bull HN will
take appropriate measures to correct such errors in a reasonable time.
Such decision as to when or whether to correct errors will be in Bull
HN's sole discretion. Bull HN will respond to reasonable inquiries
regarding the installation and/or operation of the Bull HN Licensed
Products.
7.2.3 The support of the Bull HN Licensed Software sublicensed to
Distributors or Customers shall be provided as follows:
(i) Peritus shall be responsible for providing First Level Support.
For the purposes of this Paragraph "First Level Support" shall mean
direct contact with the Distributors and/or Customers as applicable,
handling inquiries, routine problem diagnosis and resolution or, in the
event a problem cannot be resolved, the obtaining of appropriate
documentation of such inquiry or problem for referral to Bull.
(ii) Bull shall be responsible for providing Second Level Support.
For purposes of this paragraph "Second Level Support" shall mean the
provision of personnel with such special training and experience as may
be, on a reasonable efforts basis, appropriate to handle Distributor or
Customer inquiries, non-routine problem diagnosis and resolution, etc.,
upon referral by Peritus' First Level Support personnel.
7.2.4 There shall be ********* for maintenance and support of the Bull
HN Licensed Products.
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Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
ARTICLE 8 - TRAINING
8.1 Peritus shall provide to Bull HN the training described in Exhibit D
***********************. Such training shall be at Peritus' facilities and
Peritus shall supply all equipment, software and training materials and other
supplies required for such training. Such training may be part of regular
classes offered by Peritus. Bull shall be responsible for the travel and living
expenses of its personnel, if any. Additional training during the Term shall
also be promptly provided following written request by Bull, at Peritus' then
current most favorable rates.
ARTICLE 9 - WARRANTIES
9.1 Peritus represents and warrants that Peritus has good and clear title to
the Peritus Licensed Products and Peritus Licensed Technology free and clear of
all liens and encumbrances, and to all rights and licenses with respect thereto
granted to hereunder. Peritus further warrants that Peritus has not made and
will not make any commitments to others inconsistent with or in derogation of
the rights and licenses granted to herein, and that Peritus is free of any
obligation that would prevent it from entering into this Agreement.
9.2 Peritus further warrants that the Peritus Licensed Products and Peritus
Licensed Technology do not infringe any patent, copyright, trade secret, mask
work, trademark or other legal or equitable rights of any third party.
9.3 Peritus agrees to indemnify, hold harmless and defend Bull HN, Bull,
Distributors and Customers from and against any and all suits, proceedings at
law or in equity, and any and all liability, loss, claims, costs, damages or
expenses, including reasonable attorney's fees, arising out of or in connection
with any claim by any person that the exercise of any right granted by Peritus
hereunder to the Peritus Licensed Products or Peritus Licensed Technology
infringes any right, title, or interest, including patent, copyright, trade
secret, trademark, mask work or other proprietary rights of third parties,
provided however that Bull promptly notifies Peritus of any such claim and
provides Peritus with reasonable assistance and cooperation.
9.4 EXCEPT AS SPECIFICALLY PROVIDED HEREIN, PERITUS MAKES NO WARRANTIES AND
HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE WITH REGARD TO THE PERITUS LICENSED PRODUCTS, THE PERITUS
LICENSED
-13-
TECHNOLOGY, ANY SERVICES PROVIDED HEREUNDER OR THIS AGREEMENT. IN NO EVENT SHALL
PERITUS BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES RESULTING
FROM THE PERITUS LICENSED PRODUCTS, THE PERITUS LICENSED TECHNOLOGY, ANY
SERVICES PROVIDED HEREUNDER OR THIS AGREEMENT.
9.5 Bull HN represents and warrants that Bull has good and clear title to
the Bull HN Licensed Products free and clear of all liens and encumbrances, and
to all rights and licenses with respect thereto granted to hereunder. Bull HN
further warrants that Bull HN has not made and will not make any commitments to
others inconsistent with or in derogation of the rights and licenses granted to
herein, and that Bull HN is free of any obligation that would prevent it from
entering into this Agreement.
9.6 THE BULL HN LICENSED PRODUCTS ARE PROVIDED AS IS. EXCEPT AS SPECIFICALLY
PROVIDED HEREIN, BULL HN MAKES NO WARRANTIES AND HEREBY DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD
TO THE BULL HN LICENSED PRODUCTS, ANY SERVICES PROVIDED HEREUNDER OR THIS
AGREEMENT. IN NO EVENT SHALL BULL HN BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL OR
SPECIAL DAMAGES RESULTING FROM THE BULL HN LICENSED PRODUCTS, ANY SERVICES
PROVIDED HEREUNDER OR THIS AGREEMENT.
ARTICLE 10 - TERM AND TERMINATION OF AGREEMENT
10.1 The initial Term of this Agreement shall be as set forth in Article
1.18. The Parties may agree to extend the Term of this Agreement by written
amendment in accordance with Article 14.11.
10.2 If either Party hereto shall fail to perform or observe adequately any
of the terms and conditions to be performed or observed under this Agreement,
the other Party may, (subject to the provisions of Article 14.7), give written
notice to the defaulting Party specifying the respects in which the defaulting
Party has so failed to perform or observe the terms and conditions of this
Agreement, and in the event that any defaults so indicated shall not be remedied
by the defaulting Party within 90 days after such notice, (or if such default
cannot be remedied during such ninety (90) day period then the defaulting Party
shall have commenced the remedy and proceeded diligently within 90 days after
such notice), the Party not in default within 30 days thereafter may by written
notice to the defaulting Party terminate this Agreement, and, except as provided
herein, this Agreement and all the rights herein granted to the defaulting Party
shall terminate 5 days after the defaulting Party's receipt of such notice of
Termination. No waiver of any breach of any provision of this Agreement shall
constitute a waiver of any other breach
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of the same or other provisions of this Agreement, and no waiver shall be
effective unless made in writing.
10.3 If a Bull entity shall fail to perform or observe adequately any of the
terms and conditions to be performed or observed under this Agreement, Peritus
may (subject to the provisions of Article 14.7) give written notice to such Bull
entity specifying the respects in which such Bull entity has so failed to
perform or observe the terms and conditions of this Agreement, and in the event
that any defaults so indicated shall not be remedied by such Bull entity (or if
such default cannot be remedied during such ninety (90) day period then such
Bull entity shall have commenced the remedy and proceeded diligently within 90
days after such notice), then Peritus within 30 days thereafter may by written
notice to such Bull entity terminate this Agreement with respect to such Bull
entity and, except as provided herein, this Agreement and all the rights herein
granted to such Bull entity shall terminate 5 days after receipt of such notice
of Termination. Any such Termination of this Agreement with respect to an
individual Bull entity pursuant to this paragraph 10.3 shall not affect the
rights or obligations of Bull HN or any other Bull entity under this Agreement.
10.4 All sublicenses granted to Customers pursuant to this Agreement, and
all obligations, including royalty obligations with respect thereto, shall
survive any termination of this Agreement. Bull and Distributors may continue to
use the Peritus Licensed Products and Peritus Licensed Technology internally
following termination of this Agreement provided the appropriate royalty has
been paid to Peritus.
10.5 Notwithstanding any termination of this Agreement, (i) Bull and
Distributors shall continue to have those rights and licenses including the
right to retain those Peritus Licensed Products and Peritus Licensed Technology
and (ii) Peritus shall continue to have those rights and licenses including the
right to retain those Bull HN Licensed Products, only as are reasonably
necessary for to fulfill obligations to Customers under contracts entered into
up to and including the date of such termination.
10.6 Notwithstanding the provisions of Article 10.2, in the event of
Peritus' failure to fulfill any of its obligations hereunder, including without
limitation its obligations for support and maintenance pursuant to Article 7.1,
within 90 days after written notification to Peritus of such failure, Bull may
elect upon written notice to Peritus, in lieu of terminating the Agreement and
in addition to any other remedy it may have, at its sole option, to perform
Peritus' obligations and to reduce or suspend as appropriate the payments to
Peritus to reflect Peritus' failure to perform such obligations. Peritus agrees,
therefore, should Bull so elect to perform Peritus' obligations hereunder, to
provide Bull with the source code of the Peritus Licensed Software as well as
any other tool, provided that such source code or tool is reasonably necessary
for the particular Peritus' obligations that Bull has so elected to perform, and
Bull shall have such rights with respect to such source code
-15-
and tools. Peritus shall, at Bull's expense, and within 30 days following the
Effective Date of this Agreement and during the Term of this Agreement, as such
source code is Changed in accordance with the terms and conditions of this
Agreement, place such source code in safekeeping with an escrow agent mutually
agreeable to both parties, which escrow agent shall be instructed to provide
such source code to Bull in accordance with the terms and conditions of this
Agreement, and an escrow agent agreement substantially in the form as attached
as Exhibit E. Peritus agrees to provide Bull HN with an updated list of the
materials placed in escrow and to allow Bull HN to audit such placements.
ARTICLE 11 - CONFIDENTIALITY
11.1 A Party receiving Confidential and Proprietary Information from the
other Party shall maintain such Confidential Proprietary Information in
confidence during the Term and for a period of 5 years following the Term. The
receiving Party shall treat the Confidential and Proprietary Information
received hereunder with the same care the receiving Party uses in the protection
of the receiving Party's own Confidential and Proprietary Information and take
reasonable precautions to limit the disclosure of such Confidential and
Proprietary Information only to its employees, employees of its Subsidiaries,
and in the case of Bull HN, to employees of Bull, contractors and consultants
with a need to know to fulfill the receiving Party's rights and obligations
pursuant to this Agreement. The receiving Party shall not otherwise copy such
Confidential and Proprietary Information in whole or in part, or make any other
use of such Confidential and Proprietary Information without the prior written
consent of the transmitting Party except as may be necessary to exercise its
rights and fulfill its obligations pursuant to this Agreement. The receiving
Party shall not divulge, in whole or in part, such Confidential and Proprietary
Information to any other third party except as provided herein without the prior
written consent of the transmitting Party and shall reproduce and include the
transmitting Party's copyright and trade secret notices on all copies of such
confidential and proprietary information.
11.2 Confidential and Proprietary Information shall mean information in
documented form or oral form the substance of which is promptly reduced to
writing and marked thereon as Confidential and Proprietary. Such Confidential
and Proprietary Information shall not include:
(a) information which was in the public domain at the time of
disclosure hereunder, or
(b) information which was rightfully in the receiving Party's
possession without binder of secrecy prior to the time of its
disclosure hereunder, or
-16-
(c) information which, though originally confidential and proprietary
information, subsequently becomes part of the public knowledge or
literature through no fault of the receiving Party, as of the date of
its becoming part of the public knowledge or literature, or
(d) information which, though originally confidential and proprietary
information, subsequently is received by the receiving Party from a
third party who has disclosed the information without binder of
secrecy, as of the date of such third party disclosure, or
(e) information independently developed by the receiving Party's
employees or agents who can be shown to have had no access to
Confidential and Proprietary Information received hereunder.
Confidential and Proprietary Information disclosed under this Agreement shall
not be deemed to be within the foregoing exceptions merely because such
information is embraced by more general information in the public domain or
within the receiving Party's possession.
11.3 All other information transmitted between the Parties shall be
maintained in accordance with the copyright laws; provided that the transmitting
Party shall xxxx such information with a proper copyright notice and the
transmitting Party shall reproduce such copyright notice on all copies of such
information.
ARTICLE 12 - RESERVED
ARTICLE 13 - DEVELOPMENT OF SOFTWARE BY BULL COMPANIES
13.1 Nothing contained in this Agreement shall prevent Bull from developing,
acquiring or marketing, either through the use of its own personnel or through
third parties, products similar to the Peritus Licensed Products. Nothing herein
shall be construed to grant Peritus any rights in any such similar products so
developed or acquired, or any rights to the revenues of any portion thereof
derived by Bull from the use, sale, lease, sublicense or other disposal of any
such products.
13.2 Bull shall have complete right, title and interest in any Changes to
Peritus Licensed Products or Peritus Licensed Technology which Bull makes or
acquires from any third party.
-17-
ARTICLE 14 - GENERAL
14.1 No Assignment. This Agreement shall be binding upon and inure to the
-------------
benefit of any corporation or other legal entity with which Bull HN may be
merged or consolidated, or to the benefit of the assignee of the entire assets
of either Party to which this Agreement relates. This Agreement shall not
otherwise be assignable without the prior written consent of the other Party.
14.2 No Agency. This Agreement shall not constitute either Party the legal
---------
representative, employee, partner, joint venturer or agent of the other, nor
shall either Party have the right or authority to assume, create, or incur any
liability or any obligation of any kind, expressed or implied, against, or in
the name of or on behalf of the other Party.
14.3 No Publicity. Neither Party shall publicize the existence or terms of
------------
this Agreement, without the prior written approval of the other Party. Further,
each Party shall use its best efforts not to disclose the terms and conditions
of this Agreement to any third party, except as required by law, or by
governmental regulation, requirement or order, or as may be necessary to
establish or assert its rights hereunder, provided however, that Peritus and
Bull shall have the right to disclose the terms and conditions of this Agreement
to Distributors.
14.4 Export Control. If Peritus or Bull exports, either directly or
--------------
indirectly, Licensed Products to any country for which the United Sates
government (or any agency thereof) requires an export control license or other
approval, Peritus or Bull, as applicable, shall first obtain such license or
approval.
14.5 Notices. Any and all written notices, communications and deliveries
-------
between Peritus and Bull HN with reference to this Agreement shall be
sufficiently made (i) on the date of mailing if sent by registered or certified
mail to the respective designated representatives, (ii) on the date following
transmission if sent by fax and followed by an original sent by US mail and
(iii) on the date of delivery if sent by express mail or personal delivery, if
sent to the addresses below, subject to change upon written notice in accordance
with this provision:
In the case of Bull: In the case of Peritus:
Bull HN Information Systems Inc. Peritus Software Services Inc.
President, Integris President
000 Xxxxxxx Xxxx 000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
with a copy to Legal Department at the same address.
-18-
14.6 Governing Law. The validity, interpretation and performance of this
-------------
Agreement shall in all respects be governed by the laws of the Commonwealth of
Massachusetts.
14.7 Disputes. If there is a dispute between the Parties, the Party alleging
--------
such dispute shall serve upon the other Party written notice setting forth the
nature of the dispute. If the dispute relates to a breach alleged under
paragraph 10.2, the Party receiving notice of breach shall give the other Party
written notice of the dispute within 10 days of receipt of the notice of breach.
If any dispute is not resolved to the satisfaction of the Party giving the
notice of dispute within 30 days of such notice, then such Party may, by written
notice to the other Party within an additional 30 days thereafter, request a
meeting of representatives of senior management of the Parties to occur within
30 days of such written request.
14.8 Headings. The Article headings in this Agreement are for convenience
--------
only and are not to be used to interpret this Agreement.
14.9 Force Majeure. Neither Party shall be responsible for any failure or
-------------
delay in performance due to acts of God or other causes beyond its reasonable
control.
14.10 Severability. If any term, provision, covenant or condition of this
------------
Agreement is held invalid or unenforceable for any reason, the remainder of the
provisions shall continue in full force and effect as if this Agreement had been
executed with the invalid portion thereof eliminated.
14.11 Entire Agreement. This Agreement including Exhibits A through E, sets
----------------
forth the complete and exclusive statement of the Agreement between the Parties
relating to the subject matter contained herein, and merges all prior
discussions and communications between them. Neither Party shall be bound by any
definition, condition, warranty or representation other than as expressly set
forth in this Agreement, or in an amendment subsequently set forth in writing
signed by the Parties hereto.
IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement,
including Exhibits A through E, which are incorporated herein and made a part
hereof, in duplicate, by their respective duly authorized officers to be
effective as of the Effective Date.
Peritus Bull HN Information Systems Inc
BY: /s/ Xxxxx Xxxxx BY: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------- --------------------------------
NAME: Xxxxx Xxxxx NAME: Xxxxxxxx X. Xxxxxxx
------------------------------ -------------------------------
TITLE: VP Finance TITLE: President Integris
----------------------------- ------------------------------
DATE: 8/9/96 DATE: 8/8/96
------------------------------- -------------------------------
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Confidential materials omitted and filed
separately with the Securities and Exchange Commission.
Asterisks denote such omissions.
EXHIBIT A1 - PERITUS LICENSED SOFTWARE DESCRIPTION
1. AutoEnhancer/2000 R2, Version 5 (or currently supported release[s]) of this
product with the following functionality:
** ******************************************************
**************************************************************
*********************************************************
*************************************************************
**********************************************************.
** *******************************************************.
** *************************************************************
**************.
** **********************************************.
** **************************************************************
***********************.
** *************************************************** ******
** **************************************************************
*************************.
2. Peritus Front-Ends (with the following functionality):
*******************************************************************
**************************************************************
***********************:
** *************
** *************
** ***************
** ***************
** ****************
** ***********
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Confidential materials omitted and filed
separately with the Securities and Exchange Commission.
Asterisks denote such omissions.
EXHIBIT A2 - BULL HN LICENSED SOFTWARE DESCRIPTION
********************************************************************************
********************************************************************
*********************************.
******************************************************************************
*************************************************************************
*****************************.
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EXHIBIT A3 - PERITUS LICENSED TECHNOLOGY
Peritus Year 2000 Mass Change Processes and Methodologies Peritus Year 2000 Mass
Change Processes and Methodologies:
Automate: 2000 Requirements Specifications
Automate: 2000 Factory Flow Chart
-22-
EXHIBIT B - RELATED MATERIALS DESCRIPTION
1. Peritus Licensed Products
a. Documentation. The publications, in written and/or electronic
form which describe the Peritus Licensed Products and/or Services are
included within the respective product and/or service.
1. Installing AutoEnhancer:2000
2. Using AutoEnhancer:2000
3. Version X Server Flow, AutoEnhancer:2000
4. Version X Release notes, AutoEnhancer:2000
2. Peritus Licensed Technology
a. Automate:2000 Requirements Specifications, Revision 0
b. Automate:2000 Factory Flow Charts, Revision 2.1
3. Bull HN Licensed Products
The publications, in written and/or electronic form which describe the Bull HN
Licensed Products and which are or will be included in Bull's standard offering.
-23-
Confidential materials omitted and filed
separately with the Securities and Exchange Commission.
Asterisks denote such omissions.
EXHIBIT C - PAYMENTS
A. GCOS 8 and GCOS 7
1. The royalties payable to Peritus for use by Bull of the Peritus
Licensed Products and Peritus Licensed Technology to provide Year 2000 Services
for GCOS 8 and GCOS 7 Customers shall be as follows:
Cost per line of Code:
Annual LOC* Fee per LOC
----------- -----------
********** *****
************* *****
**************** *****
*********** *****
*For the purposes of this Exhibit C, each LOC shall be counted one time,
regardless of how may times such LOC shall have been processed or treated.
2. The royalties payable to Peritus for the sublicense of the Peritus
Licensed Products and Peritus Licensed Technology to Customers shall be as
follows:
Fully Paid Up Royalties as follows:
For Sublicenses granted in 1996 ************
For Sublicenses granted in 1997 and beyond: ************
B. Other Computer Programs
In the event that Bull HN or Bull prepares derivative work(s) of the Peritus
Licensed Products or Peritus Licensed Technology that permits the treatment or
processing of Computer Programs other than GCOS 7 and GCOS 8 Computer Programs,
Bull HN and Peritus will mutually agree in writing on Fees per LOC for use by
Bull of such derivative work and on one-time royalties for sublicenses to
Customers of such derivative work.
C. Report Format
Sublicenses:
-----------
Customer Amount
-------- ------
-24-
XXX
YYY ----
Subtotal $XXX
Year 2000 Services: LOC LOC Rate Amount
------------------- --- -------- ------
Bull:
----
Customer, location
Distributors:
Customer, location -----
Subtotal $ XXX
Total Payment Due $ XXX
-25-
Confidential materials omitted and filed
separately with the Securities and Exchange Commission.
Asterisks denote such omissions.
EXHIBIT D - TRAINING
Peritus will provide the following classes:
1. Product Training: ******** class for up to ***** Bull employees. This
class will be offered one time. Maximum of ***** student days.
2. Technical Training: *** day class for up to ***** Bull HN employees.
This class will be offered one time. Maximum of *** student days.
3. Marketing Training: *** day class for up to ****** Bull HN employees.
This class will be offered up to two times. Maximum of ***** student days.
4. Additional training: As available at Peritus' then current rates to
Bull, Distributors and Customers.
5. Certification: Following classroom training and monitored delivery of
pilot/renovation activity, a certifying exam will be administered by Peritus.
This exam will take place in an Automate:2000 service lab environment, which
will include tools and sample code. As part of the exam, the persons seeking to
be certified will be asked to complete one or more of the following phases:
a) Assessments;
b) Look Ahead;
c) Identification;
d) Correction;
e) Verification;
f) Testing (Q. A.).
In each phase, the exam will test and review knowledge and ability to deliver
and utilize all aspects of Automate:2000 service and the AutoEnhancer/2000,
including but not limited to understanding the user interface, error messages
and file formats.
In the event that modifications, updates and enhancements to the Peritus
Licensed Products and/or Peritus Licensed Technology are provided, further
certification exams may be conducted at regularly scheduled intervals.
Peritus reserves the right to promulgate reasonable changes in the certification
testing described herein. Peritus will provide Bull with reasonable written
notice of any such changes.
-26-
