EXHIBIT 10.7
SOFTWARE LICENSE AGREEMENT
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THIS SOFTWARE LICENSE AGREEMENT (the "Agreement"), dated July 11, 1998 (the
"Effective Date"), is between CHORDIANT SOFTWARE, INC., a Delaware corporation
("Chordiant"), and ELECTRONIC DATA SYSTEMS CORPORATION, a Delaware corporation
("EDS").
W I T N E S S E T H:
WHEREAS, EDS desires to have the right to license computer software
programs and to obtain services from Chordiant for EDS' Centrobe business or
successor organizations as designated by EDS from time to time; and
WHEREAS, Chordiant is willing to provide computer software programs and
services to EDS in accordance with the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the premises, and other good and
valuable consideration received and to be received, Chordiant and EDS agree as
follows:
ARTICLE I. AGREEMENT, TERM, AND DEFINITIONS
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1.1 Agreement and Term. The parties agree that the terms and conditions of
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this Agreement apply to Chordiant's provision of computer software programs
and services to EDS for EDS' Centrobe customers. The term of this
Agreement commences on the Effective Date and the Agreement shall continue
to be in effect until terminated by either party as set forth in this
Agreement.
1.2 Certain Definitions. The following definitions apply to this Agreement:
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(a) "Affiliate" means any entity controlling, controlled by or under
common control with either party. For purposes of this Agreement,
control means operational control in which the controlling entity has
either (i) fifty one percent (51%) or more of the equity interest, or
(ii) the maximum percentage of the equity interest allowed by local
law, based on the entity's location or state of incorporation, as
applicable, whichever is less.
(b) "Applicable Specifications" means the functional, performance,
operational, compatibility, and other specifications or
characteristics of a Product described in applicable Documentation and
such other specifications or characteristics of a Product agreed upon
in writing by the parties.
(c) "Documentation" means user guides, operating manuals, education
materials, product descriptions and specifications, technical manuals,
supporting materials, and other information provided, or to be
provided, by Chordiant to EDS relating to the Products or used in
conjunction with the Services, whether distributed in print, magnetic,
electronic, or video format, in effect as of the date (i) a Product is
shipped to or is accepted by EDS, as applicable, or (ii) the Service
is provided to EDS.
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(d) "Employee" means those employees, agents, subcontractors, consultants,
and representatives of Chordiant provided or to be provided by
Chordiant to perform Services pursuant to this Agreement.
(e) "Licensed Software" means computer programs in object code (including
micro code) provided or to be provided by Chordiant pursuant to this
Agreement. The definition of Licensed Software also includes any
enhancements, translations, modifications, updates, releases, or other
changes to Licensed Software which are provided or to be provided as
part of Chordiant's performance of warranty Service obligations or
pre-paid support Services pursuant to this Agreement.
(f) "Products" means, individually or collectively as appropriate,
Licensed Software, Documentation, and Work Products (as later defined
in this Agreement), provided or to be provided by Chordiant pursuant
to this Agreement.
(g) "Services" includes, but is not limited to, installation, education,
acceptance testing, support, development, warranty, and time and
materials services, provided or to be provided by Chordiant pursuant
to this Agreement.
(h) "Site" means geographically contiguous buildings, each of which, in
whole or in part, is occupied or accessed by EDS or a customer of EDS.
"Geographically contiguous" means adjacent tracts or parcels of real
property separated, if at all, only by publicly dedicated rights of
way or private easements.
(i) "Source Code" means the instructions regarding the Licensed Software
expressed in the high-level technical and specialized programming
language in which the programmer wrote the software program.
(j) "Warranty Period" means the period specified in Section 5.1(e) of this
Agreement during which Chordiant is obligated to perform its warranty
obligations.
ARTICLE II. PURCHASE ORDERS
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2.1 Preparation of Purchase Orders. Chordiant agrees that computer software
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programs and services which Chordiant generally makes available to other
customers shall be made available to EDS under the terms and conditions of
this Agreement. EDS may reasonably request non-confidential information
about computer software programs and services in order to prepare purchase
orders and Chordiant shall promptly provide to EDS, at no charge,
sufficiently detailed non-confidential information which is responsive to
EDS' request. From time to time and/or at EDS' request, Chordiant shall
provide written information to EDS about computer software programs and
services, and new releases, versions or options related thereto, available
or to be available from Chordiant.
2.2 Issuance and Acceptance of Purchase Orders. References in this Section
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to purchase orders also apply to alterations to Purchase Orders (as later
defined in this Section). The following governs the issuance and
acceptance of purchase orders under this Agreement:
(a) EDS may issue to Chordiant written purchase orders identifying the
Licensed Software and Services EDS desires to obtain from Chordiant.
Each purchase order may include
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other terms and conditions applicable to the Licensed Software and
Services ordered; such other terms shall be consistent with the terms
and conditions of this Agreement, or shall be necessary to place a
purchase order, such as billing and shipping information, required
delivery dates, installation locations, and Charges (as later defined
in this Agreement).
(b) Chordiant shall promptly accept purchase orders by providing to EDS a
written or an oral acceptance of such purchase order, or by commencing
performance pursuant to such purchase order. Chordiant shall accept
purchase orders which do not establish new or conflicting terms and
conditions from those set forth in this Agreement. Chordiant shall
also accept purchase orders incorporating terms and conditions which
have been separately agreed upon in writing by the parties.
Notwithstanding the forgoing, Chordiant shall have the right to reject
purchase orders for Services due to an inability to meet the delivery
or commencement dates set forth in such purchase orders by promptly
providing written notice to EDS of such inability and alternative
dates that can be met by Chordiant.
(c) Chordiant may reject a purchase order which does not meet the
conditions described in subsection (b) above by promptly providing to
EDS a written explanation of the reasons for such rejection. Chordiant
shall accept an alteration to the originally issued purchase order if
such alteration remedies the items set forth in Chordiant's written
rejection.
Purchase orders accepted in accordance with this Section are referred to as
"Purchase Orders." EDS shall have no responsibility or liability for
Licensed Software or Services provided without a Purchase Order so long as
EDS returns such Licensed Software to Chordiant, at Chordiant's expense.
2.3 Purchase Order Alterations. EDS may issue an alteration to a Purchase
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Order in order to, without limitation, (i) change a location for delivery,
(ii) reasonably modify the quantity or type of Licensed Software and
Services to be delivered or performed, (iii) implement any reasonable
change or modification as required by or permitted in this Agreement, (iv)
correct typographical or clerical errors, or (v) order Licensed Software or
Services which are of superior quality, or are enhancements to or are new
releases or new options of the Licensed Software or Services set forth in
the Purchase Order. Notwithstanding the forgoing, Chordiant shall have the
right to reject purchase order alterations for Services due to an inability
to meet the delivery or commencement dates if such inability is caused by
such alteration, by promptly providing written notice to EDS of such
inability and alternative dates that can be met by Chordiant
2.4 Evaluation Purchase Orders. EDS may issue a purchase order to Chordiant for
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Product evaluation by EDS in accordance with the following:
(a) The evaluation period shall not exceed thirty (30) days (the
"Evaluation Period") unless otherwise agreed upon by the parties in
writing.
(b) During the Evaluation Period, the Products shall be used by EDS in a
non-production environment.
(c) Chordiant shall provide the Products listed in the evaluation Purchase
Order to EDS and shall pay all related transportation costs.
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(d) Licensed Software provided pursuant to an evaluation Purchase Order
shall be protected by EDS in accordance with the non-disclosure
requirements specified in this Agreement which are applicable to
Licensed Software.
(e) EDS and Chordiant must mutually agree to Services required during the
Evaluation Period, EDS shall pay Chordiant for such Services as per
the Charges listed in Exhibit B of this Agreement, or as mutually
agreed by the parties. If no agreement is reached as to the amount of
Services required then Chordiant may reject such Evaluation Purchase
Order.
(f) At the conclusion of the Evaluation Period, EDS shall have the option
of: (i) acquiring such Products pursuant to this Agreement, (ii)
returning such Products to Chordiant at EDS' expense without
obligation to Chordiant, and (iii) destroying all copies of such
Products.
(h) Products which Chordiant and EDS agree to be the subject of beta
testing by EDS shall be subject to a separate agreement between the
parties containing applicable beta test terms and conditions.
2.5 Cancellation of Purchase Orders. Except as otherwise agreed upon by the
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parties, EDS may cancel all or a portion of a Purchase Order relating to
Product(s), without charge or penalty up to ten (10) calendar days prior to
the scheduled delivery date of the affected Product(s). In the event EDS
cancels a Purchase Order or any portion thereof within ten (10) calendar
days of the scheduled delivery date, as Chordiant's sole and exclusive
remedy and EDS' sole liability, EDS shall reimburse Chordiant the direct,
verifiable, non-recoverable expenses incurred by Chordiant as a result of
such cancellation. Purchase Orders, or portions thereof, for Services may
be canceled as specified in the applicable sections of this Agreement.
ARTICLE III. PROVISION OF LICENSED SOFTWARE AND SERVICES
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3.1 General. EDS is entitled to obtain Licensed Software and Services for
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the benefit of and use by Affiliates of EDS if such use is on behalf of
EDS' Centrobe business. Such Affiliates and their respective employees are
entitled to use the Licensed Software and Services in accordance with this
Agreement and have and are entitled to all rights, benefits, and
protections granted to EDS pursuant to this Agreement with respect to such
Licensed Software and Services. However, an Affiliate of EDS shall only be
entitled to obtain Licensed Software and Services directly from Chordiant
pursuant to this Agreement if EDS so provides written notice to Chordiant.
EDS is responsible for compliance by its Affiliates with the terms and
conditions set forth in this Agreement. EDS and its Affiliates have the
right to transfer (pursuant to Section 4.3 "Transfer of Licensed
Software"), or remarket the Licensed Software and Services to third
parties.
3.2 Transportation of Licensed Software. Chordiant shall deliver Licensed
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Software to EDS on the delivery date set forth in the applicable Purchase
Order or as otherwise agreed upon by the parties. Charges for
transportation of Licensed Software shall be paid by Chordiant. The method
and mode of all transportation shall be those selected by Chordiant.
3.3 Risk of Loss. All risk of loss of, or damage to, Licensed Software
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shall be borne by Chordiant until receipt of delivery of such Licensed
Software by EDS. Chordiant agrees to insure Licensed Software until
receipt of delivery of such Licensed Software by EDS. If loss to or damage
of
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Licensed Software occurs prior to receipt of delivery by EDS, Chordiant
shall immediately provide a replacement item or, if Licensed Software is
not immediately replaceable, Chordiant shall give EDS highest priority for
the provision of replacement Licensed Software.
3.4 Installation of Licensed Software. If installation is set forth in
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the governing Purchase Order or is included in the Charge for Licensed
Software, Chordiant shall install Licensed Software in good working order
at the designated location on or before the installation date set forth in
the applicable Purchase Order or as otherwise agreed upon by the parties.
Installation Services shall include performance of Chordiant's usual and
customary diagnostic tests to determine the operational status of the
Licensed Software. Chordiant shall inform EDS of any education Services
which are included with installation, and such education may be performed
at a time mutually agreed upon by Chordiant and EDS.
3.5 Right to Cancel for Delays. In the event of a delay in delivery of
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all or any portion of Licensed Software listed on a Purchase Order or
Licensed Software listed on a series of Purchase Orders which relate to a
specific project or request for proposal (the Licensed Software listed on
such series of Purchase Orders referred to as "Related Licensed Software"),
or in the event of a delay in the performance of Services which is not
excused in this Agreement, EDS may cancel without charge all or any portion
of the Licensed Software, Related Licensed Software or Services for which
delivery or performance has been so delayed. If, in EDS' opinion, the
delivered Licensed Software or Related Licensed Software are not operable
without the remaining undelivered Licensed Software or Related Licensed
Software, EDS may, at Chordiant's expense, return any delivered Licensed
Software or Related Licensed Software to Chordiant. EDS shall not be
liable for any expenses incurred by Chordiant for canceled, undelivered, or
returned Licensed Software or Related Licensed Software. EDS shall receive
a refund of all amounts paid to Chordiant with respect to the canceled
and/or returned Licensed Software, Related Licensed Software and Services.
3.6 Resale of Products by EDS. During the term of this Agreement, EDS may
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promote and resell Product licenses, in conjunction with EDS providing
systems integration, outsourcing or facilities management services to a
customer of EDS ("ITS Customer"), in accordance with the following terms
and conditions:
(a) Charges for Purchase Orders identified for resale of Product licenses
shall be as set forth in Exhibit B.
(b) For a Purchase Order not identified as subject to Auto Payment as
defined in Section 6.3, Chordiant may invoice EDS for resale products
upon delivery and payment will be made in accordance with the
provisions of Section 6.4, Payment Through Invoicing.
(c) Chordiant shall extend the same warranties and indemnifications, with
respect to Products resold by EDS hereunder, as Chordiant extends to
other end user customers.
(d) The term of agreements, warranties and indemnities extended by
Chordiant to an ITS Customer shall commence upon delivery of a Product
to an ITS Customer and the ITS Customer shall be governed by
Chordiant's then current End User Software License Agreement, which
may be changed by Chordiant from time to time but is substantially
similar to Exhibit H, from the delivery date to such ITS Customer. EDS
shall not resell Product without first obtaining an End User Software
License Agreement signed by Chordiant and ITS Customer.
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(e) Chordiant shall make available to ITS Customers all training,
technical support and other services related to the Products that are
currently generally available or that may be generally available by
Chordiant to other end user customers.
(f) During the term that EDS is providing services to an ITS Customer, EDS
shall have authorized access to Licensed Software acquired under this
Section 3.6, in accordance with the provisions of Exhibit F, titled
"Reseller Access Authorization".
3.7 Time and Materials Services. If available from Chordiant, EDS may
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obtain on a time and materials basis from Chordiant consulting, development
and other Services (excluding support Services which are provided pursuant
to other sections of this Agreement) agreed upon by the parties in
accordance with the terms and conditions set forth below.
(a) EDS may reasonably request on a purchase order the number and skill
levels of Employees to perform Services.
(b) During the course of performance of Services, EDS may request
replacement of an Employee or a proposed Employee. In such event,
Chordiant shall use best efforts to provide, within five (5) working
days of receipt of such request from EDS, a substitute Employee of
sufficient skill, knowledge, and training to perform the applicable
Services. If, after use of best efforts, Chordiant is unable to
provide such substitute Employee, EDS may, at its sole option, retain
the Services of said unacceptable Employee until such time as
Chordiant provides an acceptable substitute Employee. If, within the
first thirty (30) days after an Employee's commencement of Services,
EDS notifies Chordiant (i) such Employee's level of performance is
unacceptable, (ii) such Employee has failed to perform as required, or
(iii) such Employee, in EDS' sole opinion, lacks the skill, knowledge
or training to perform at the required level, then EDS shall not be
required to pay for Services provided by such Employee during such
period and Chordiant shall refund to EDS all amounts paid for such
Employee's Services; however, EDS shall pay for any Work Product
created by said Employee which EDS continues to use after the
replacement of said Employee and if EDS decides to retain the services
of said Employee because no acceptable substitute has been made
available, then EDS shall pay for any services performed after the
date of notice to Chordiant at a discounted rate mutually agreed to by
the parties. If EDS requests replacement of an Employee for the above-
referenced reasons after such thirty (30) day time period, or at any
time for a reason other than the reasons indicated above, EDS shall
not be required to pay for, and shall be entitled to a refund of, any
sums paid to Chordiant for such Employee's Services after the date of
EDS' requested replacement of such Employee.
(c) Chordiant shall not replace, without EDS' consent (which shall not be
unreasonably withheld or delayed), an Employee then currently
performing Services, for which the Employee is uniquely qualified,
this includes but is not limited to: (i) EDS has provided training to
said Employee to enable them to perform the Service, or (ii) EDS
specifically requested and Chordiant agreed to provide said Employee
to perform the Service; until the governing Purchase Order expires or
is terminated; however, Chordiant may replace, without EDS' consent,
an Employee for reasons relating to the Employee's termination with
Chordiant, promotion, demotion, illness, death, or causes beyond
Chordiant's control.
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(d) EDS shall reimburse Chordiant for reasonable expenses incurred by
Employees in the performance of Services (if requested by EDS or
requested by Chordiant in advance and approved by EDS) which are
related to travel, lodging, and meals; such expenses shall be
reimbursed in accordance with EDS' guidelines for its own employees.
(e) Chordiant shall establish and shall retain, for a period of three (3)
years following the performance of time and materials Services,
records which adequately substantiate the applicability and accuracy
of Charges for such Services and related expenses to EDS. Upon
receipt of thirty (30) days advance notice from EDS, Chordiant shall
produce such records for audit by EDS subject to the confidentiality
provisions of this Agreement.
(f) Purchase Orders for Services provided or to be provided under this
Section may be canceled at any time without charge or penalty, upon
five (5) business days advance written notice to Chordiant, provided
that EDS shall pay for Services already performed prior to the
effective date of such notice.
3.8 Services in General. In connection with the performance of any
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Services pursuant to this Agreement:
(a) Unless a specific number of Employees is set forth in the governing
Purchase Order, Chordiant warrants it will provide sufficient
Employees to complete the Services ordered within the applicable time
frames established pursuant to this Agreement or as set forth in such
Purchase Order; however, it shall be considered an excused delay if
EDS changes the technical specifications associated with such
Services, then EDS and Chordiant shall set new time frames based upon
such changed technical specifications.
(b) Chordiant warrants that Employees shall have sufficient skill,
knowledge, and training to perform Services and that the Services
shall be performed in a professional and workmanlike manner.
(c) Employees performing Services in the United States must be United
States citizens or lawfully admitted in the United States for
permanent residence or lawfully admitted in the United States holding
a visa authorizing the performance of Services on behalf of Chordiant.
(d) Chordiant warrants that all Employees utilized by Chordiant in
performing Services are under a written obligation to Chordiant
requiring Employee: (i) to maintain the confidentiality of information
of Chordiant's customers, and (ii) if such Employee is not a full-time
employee whose work is considered a "work for hire" under Section 101
of the United States Copyright Code, to assign all of Employee's
right, title, and interest to Chordiant in and to any Work Product
which is developed, prepared, conceived, made, or suggested by such
Employee while providing Services on behalf of Chordiant.
(e) Chordiant shall require Employees providing Services at an EDS
location to comply with applicable EDS security and safety regulations
and policies.
(f) Chordiant shall provide for and pay the compensation of Employees and
shall pay all taxes, contributions, and benefits (such as, but not
limited to, workers' compensation benefits) which an employer is
required to pay relating to the employment of employees. EDS shall not
be liable to Chordiant or to any Employee for Chordiant's failure to
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perform its compensation, benefit, or tax obligations. Chordiant
shall indemnify, defend and hold EDS harmless from and against all
such taxes, contributions and benefits and will comply with all
associated governmental regulations, including the filing of all
necessary reports and returns.
(g) Chordiant shall allow EDS or its designated third party to conduct a
background investigation and drug screening ("Investigation"), in
accordance with applicable law, of any Employee performing Services
in the United States, Canada and Mexico if EDS intends to provide
the Employee with unescorted access to an EDS location. If an
Employee declines such Investigation, the parties agree such
Employee will not be allowed unescorted access to an EDS location;
furthermore, Chordiant will contact other Employees with suitable
training to see if they will agree to such Investigation. It will
not be a breach of this Agreement if Chordiant has used reasonable
efforts to request such Investigation of all suitable Employees and
Chordiant is unable to supply a suitable Employee willing to undergo
such Investigation. In connection with such Investigation EDS shall
provide to Chordiant a standard form authorizing the Investigation
and Chordiant shall promptly secure the completion of such form by
the Employee. Any and all information obtained in connection with an
Investigation of any Employee or acquired or made known during such
Investigation shall be deemed confidential and shall not be revealed
to persons without a bona fide need to know. If, after reviewing the
results of an Investigation, EDS elects not to accept an Employee
for performance of Services under this Agreement, Chordiant agrees
to not utilize such Employee in the performance of Services. EDS
shall waive the Investigation for an Employee if Chordiant provides
EDS with written confirmation that: (i) Chordiant has conducted a
background and drug screening investigation of such Employee with
satisfactory results, or (ii) the Employee has been employed with
Chordiant for at least five (5) years in good standing.
3.9 Ownership of Intellectual Property Rights. (a) For purposes of this
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Agreement, the following definitions apply:
(i) "Work Product(s)" means (in any form including Source Code) any and
all processes, methods, formulas, manufacturing techniques, mask
works, reports, programs, manuals, software, flowcharts and systems
and any improvements, enhancements, or modifications to any of the
foregoing, which are developed, prepared, conceived, or made by any
Employee or by Chordiant as part of, in connection with, or in
relationship to the performance of Services (except in connection
with Chordiant's performance of warranty Service obligations or
pre-paid support Services) pursuant to this Agreement. Work Products
also means all such developments as are originated or conceived
during the term of this Agreement but are completed or reduced to
practice thereafter.
(ii) "Existing Materials" means any confidential or proprietary materials
which belong to third parties or in which Chordiant has a
pre-existing intellectual property interest.
(iii) "Ownership Rights" includes: (A) all rights, title and interests,
and all United States and foreign intellectual property rights such
as, but not limited to, patent, trade secret, and copyright; (B) the
right to use, duplicate, and disclose Work Products and Work Product
data, in whole or in part, in any manner and for any purpose and to
authorize others to do so; (C) the exclusive right to prepare
derivative works of Work Products and of any portion thereof, with
full rights to authorize others to do the same; (D) the right to
exploit Work Product, whether or not for profit; (E) the right to
use, market or take any other
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measures without attribution to another party; (F) the right to
register ownership interest in a Work Product without contest or
assertion of a competing ownership interest in such Work Product by
another party; and, (G) all "moral rights" in and to Work Products.
(b) Chordiant shall disclose promptly and cause Employees to disclose
promptly in writing to EDS all Work Products; as to each such
disclosure, such Employee and/or Chordiant shall specifically describe
to EDS the features or concepts considered new or different.
(c) It is the intent of the parties that EDS shall have all Ownership
Rights in and to Work Products; however, if Chordiant desires
ownership in Work Product, it must be mutually agreed upon in writing
by the parties. In order to accomplish such intent, Chordiant (i)
shall make and shall ensure that each Employee makes, without
reservation, a non-terminable, irrevocable assignment to EDS of any
and all Ownership Rights that Employees and/or Chordiant may have in
or to such Work Product or any tangible media embodying such Work
Product, and (ii) shall provide to EDS and shall ensure that each
Employee provides such assignment prior to or concurrently with the
provision of the affected Work Product to EDS. If Chordiant and/or
Employees have any termination rights under law, then upon exercise of
such termination rights, Chordiant shall automatically grant and
Chordiant shall ensure that Employee grants, and EDS shall have an
irrevocable, royalty-free, paid-up, worldwide, perpetual license to
use the Work Product in the same manner, and for the same purposes as
EDS did and was entitled to do prior to such termination. Except as
necessary to perform Services or as agreed upon by the parties in a
supplemental agreement entered into in accordance with this Agreement,
Chordiant and Employees shall not exercise any Ownership Rights in and
to the Work Product, and hereby waive and agree not to assert any or
all "moral rights" in and to the Work Product, even after the
termination or expiration of this Agreement.
Unless otherwise agreed by the parties, EDS shall have no Ownership
Rights with respect to any underlying ideas or concepts provided by
Chordiant during the performance of Services.
3.10 Use of Existing Materials. To the extent that Work Product(s) under
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development may incorporate or require the use of Existing Materials, or to
the extent Chordiant intends, in its performance of Services, to utilize
any such Existing Materials (except as such are utilized by Chordiant in
the performance of warranty Service obligations or pre-paid support
Services), Chordiant shall: (i) notify EDS of such intent prior to
commencement of performance of Services; (ii) identify to EDS the ownership
of such Existing Materials; (iii) describe the use to which Chordiant
intends to put such Existing Materials; and (iv) explain Chordiant's
ability to proceed with performance of the Services without the use of such
Existing Materials. EDS may require that Chordiant perform Services without
the use of such Existing Materials. If any such Existing Material is owned
by a third party and/or is used in the performance of Services, Chordiant
warrants that it has acquired all licenses and authorizations necessary to
utilize the Existing Material in the manner and for the purpose intended by
Chordiant in its actual use of such Existing Material in the performance of
Services. To the extent that Existing Materials are incorporated in Work
Products, Chordiant grants to EDS and its Affiliates a royalty-free,
irrevocable, worldwide, non-exclusive, perpetual right to use, modify and
prepare derivative
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works of such Existing Materials and to use and display such Existing
Materials, with full rights to authorize others to do the same but only to
the extent required to utilize the Work Product in accordance with the
Ownership Rights granted in this Agreement, unless otherwise agreed to in
writing by the parties for specific Work Product(s).
3.11 Further Acts. During and subsequent to the term of this Agreement,
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Chordiant shall do, or cause to be done, all such further acts and shall
execute, acknowledge, and deliver, or cause to be executed, acknowledged,
and delivered, any and all further documentation or assignments as EDS may
reasonably require to evidence or perfect EDS' right to use, or Ownership
Rights in, as the case may be, Licensed Software or Work Products.
3.12 Time of Performance. Time is expressly made of the essence with respect to
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each and every term and provision of this Article.
3.13 EDS Business Practices. Chordiant shall comply with the EDS Business
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Practices set forth in Exhibit A.
3.14 Education Services. Education Services (as later defined) provided or to be
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provided by Chordiant pursuant to this Agreement shall also be subject to
the terms and conditions set forth in Exhibit E.
3.15 Development Services. Development Services provided or to be provided by
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Chordiant pursuant to this Agreement shall also be subject to the terms and
conditions set forth in Exhibit F unless otherwise agreed to in writing by
the parties.
ARTICLE IV. PROVISION OF LICENSED SOFTWARE
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4.1 Acceptance of Licensed Software. EDS shall accept delivered copy(ies) of
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the Licensed Software on the date (the "Acceptance Date") when necessary
Documentation has been received and (i) the Licensed Software performs in
accordance with and/or conforms to its Applicable Specifications, (ii) the
Licensed Software is used in a production environment, or (iii) on the
ninetieth (90th) day after receipt of the Licensed Software by EDS,
whichever occurs first. If, within such ninety (90) day period, EDS
determines that the Licensed Software does not so perform and/or conform,
EDS shall so notify Chordiant in writing and Chordiant shall have thirty
(30) days from receipt of such notice to correct any non-conforming and/or
non-performing features. If, after such thirty (30) day cure period, EDS
determines that such Licensed Software still fails to perform in accordance
with and/or conform to its Applicable Specifications, EDS may return the
Licensed Software and related Documentation to Chordiant, at Chordiant's
expense and without liability to Chordiant, and any amounts paid by EDS for
the Licensed Software and Documentation shall be refunded by Chordiant to
EDS. Acceptance of Licensed Software does not waive any warranty rights
provided in this Agreement for the Licensed Software.
4.2 Grant of License. For each item of Licensed Software received by EDS,
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Chordiant grants EDS and EDS has a worldwide, nonexclusive, irrevocable
(except as provided in this Agreement), perpetual license to use, execute,
store, and display the object code version of the Licensed Software, on
behalf of EDS' Centrobe business and customers of EDS' Centrobe business (a
"License") in accordance with the terms and conditions of this Agreement.
All Licenses shall be deemed to be a Site Software License.
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(a) A "Site Software License" permits EDS to use the Licensed Software at
the Site designated in the Purchase Order and to copy the Licensed
Software as necessary for dissemination at the Site and for archival,
maintenance, disaster recovery testing, or back-up purposes.
Notwithstanding the foregoing, the Licensed Software may be used at
other than the designated Site, if (i) the designated Site cannot be
used, (ii) the designated Site is replaced or changed by EDS, or (iii)
EDS provides Chordiant with prior written notice. If EDS desires to
run parallel operations in the process of conducting a disaster
recovery test or transferring operations from one Site to another
Site, EDS may operate the Licensed Software at two (2) Sites for the
period of time reasonably necessary to complete the disaster recovery
test or transfer.
(b) "Runtime Client Licenses" (seats) are not restricted to the Site,
i.e., can be located anywhere in the World interfacing with a Site
Software License, but distribution is limited to the number of Runtime
Client Licenses actually ordered on the applicable Purchase Order.
(c) Any License granted under this Agreement permits EDS to (i) use
Licensed Software for its corporate purposes including, but not
limited to, providing services to or processing data of customers of
EDS' Centrobe business, providing remote access to the Licensed
Software, and performing disaster recovery, disaster testing, and
backup as EDS deems necessary, and (ii) use, copy and modify Licensed
Software and Documentation for the purpose of creating and using
training materials relating to the Licensed Software, which training
materials may include flow diagrams, system operation schematics, or
screen prints from operation of the Licensed Software. Access to and
use of the Licensed Software by customers of EDS shall be considered
authorized use under this Section so long as such use is in
conjunction with EDS' provision of services to, or EDS' processing the
data of, such customers, and so long as any such customers are bound
by obligations of confidentiality.
(d) Unless the Third Party Letter Agreement, attached as Exhibit G has
been executed, any License granted under this Agreement which includes
the right to use the Forte Software, Inc. ("Forte") software embedded
therein pursuant to the agreement between Chordiant and Forte shall be
deemed to include the following provisions:
(i) A provision which restricts use of the Licensed software to a
maximum number of users and/or nodes and/or servers, specified
geographic location, designated call center and computer/operating
system configuration for EDS' own internal business purposes only.
(ii) A provision which prohibits transfer or duplication of the Software
except for temporary transfer in the event of a computer
malfunction and a reasonable number of backup or archival copies.
All titles, trademarks and copyright and restricted rights notices
shall be reproduced in such copies.
(iii) A provision which prohibits assignment, timesharing or rental of
the Licensed Software.
11
(iv) A provision which prohibits any use of the software outside the
scope of the Licensed Software.
(v) A provision which prohibits causing or permitting the reverse
engineering, disassembly, decompilation or any other attempt to
derive Source Code of the Licensed Software, except as and to the
extent permitted under applicable law.
(vi) A provision which prohibits title to the Software from passing to
EDS.
(vii) A provision disclaiming Chordiant's suppliers' liability for any
damages, whether direct, indirect, incidental or consequential.
(viii) A provision which requires EDS, at termination of the Sublicense,
to discontinue use and return or destroy all copies of the
Software and Documentation.
(ix) A provision which restricts publication of any results of
benchmark tests run on the Licensed Software.
(x) A provision which requires EDS to comply fully with all relevant
export laws and regulations of the United States, to ensure that
neither the Licensed Software, nor any direct product thereof, is
exported, directly or indirectly, in violation of United States
or other applicable law.
(xi) A provision which allows Chordiant, at Chordiant's expense, to
audit EDS' use of the Licensed Software. If the audit reveals
that EDS has underpaid fees to Chordiant, EDS shall be invoiced
directly for such underpaid fees based on the Chordiant Price
List in effect at the time the audit is completed. If the
underpaid fees are in excess of five percent (5%), then EDS shall
pay Chordiant's reasonable costs of conducting the audit.
(xii) A provision which states that the Licensed Software is not
specially developed, or licensed for use in any nuclear,
aviation, mass transit or medical application or in any other
inherently dangerous application; that EDS agrees that Chordiant
and its suppliers shall not be liable for any claims or damages
arising from EDS' use of the Licensed Software for such
applications; and that EDS agrees to indemnify and hold Chordiant
and its suppliers harmless from any claims for losses, costs,
damages or liability arising out of or in connection with the use
of the Licensed Software in such applications.
(xiii) A provision that Forte is a third party beneficiary of the
portions of this Agreement relating to any Forte software.
In the event of any conflict between the terms of this Section
4.2(d) and any other section of this Agreement, this Section 4.2(d)
shall control.
(e) Restrictions on Use. EDS agrees not to translate the Licensed
Software into another computer language, in whole or in part. Except
as provided in this Agreement, EDS shall not make copies or make
media translations of the Products, in whole or in part, without
Chordiant's prior written approval. EDS agrees that if, for any
reason, it comes into possession of any Source Code outside the
terms of this Agreement, or portion thereof,
12
for any Chordiant product, it will immediately deliver all copies of
such Source Code to Chordiant. EDS shall not rent, electronically
distribute or timeshare the Licensed Software or distribute the
Licensed Software by interactive cable or remote processing services
or otherwise distribute the Licensed Software other than as
specified in this Agreement. EDS acknowledges Chordiant's claim that
the Licensed Software contains trade secrets that belong to
Chordiant and its suppliers. Except as permitted under the Section
of the Agreement titled "Provision of Source Code", EDS shall not
disassemble, de-compile, or reverse engineer the Licensed Software.
Nothing contained in this Agreement shall be interpreted so as to
exclude or prejudice the rights (if any) of EDS or any End User
under the European Directive 91/250 on the Legal Protection of
Computer Programs (14 May 1991, OJ 1991 (122/42) as implemented in
the relevant jurisdiction) with respect to the Licensed Software.
The governing License also includes the right to use the Source Code
version of Licensed Software in accordance with the terms and conditions of
the Section of this Agreement titled "Provision of Source Code."
4.3 Transfer of Licensed Software. During the performance or upon termination
-----------------------------
of a contract with an EDS customer or upon any transfer of equipment
incorporating Licensed Software to a third party (such customers and third
parties referred to as "Transferee"), (i) EDS may sublicense the applicable
Licensed Software to such Transferee pursuant to terms and conditions
similar to those contained in this Article (excluding the right to
sublicense or assign), (ii) the applicable License (excluding the right to
sublicense or assign) may be assigned to such Transferee, or (iii) upon
request by EDS, the Licensed Software will be licensed directly by
Chordiant to such Transferee in accordance with the terms and conditions of
Chordiant's standard software license agreement or as agreed upon by
Chordiant and Transferee. Any assignment or sublicensing of Licensed
Software in accordance with this Section shall be at no additional charge
to EDS or Transferee, and EDS shall have no further liability or
responsibility with respect to Licensed Software under (ii) or (iii) above.
4.4 Ownership of Licensed Software and Modifications. The Licensed Software
------------------------------------------------
shall be and remain the property of Chordiant or third parties which have
granted Chordiant the right to license the Licensed Software and EDS shall
have no rights or interests therein except as set forth in this Agreement.
EDS shall be entitled to modify the Licensed Software and to develop
software interfacing with the Licensed Software. All modifications of and
interfaces to the Licensed Software developed by EDS shall be and remain
the property of EDS, and Chordiant and its Employees shall have no rights
or interests therein. Except in connection with Chordiant's performance of
warranty Service obligations or pre-paid support Services, all
modifications of and interfaces to the Licensed Software developed at EDS'
expense by Chordiant and its Employees shall be considered Work Product and
EDS shall have rights in such Work Product as established in the Section
titled "Ownership of Intellectual Property Rights" elsewhere in this
Agreement.
Upon payment of the development software license fees set forth in the
then-current price list (reduced by any applicable discounts), EDS shall
have a non-exclusive license to use the development software at one (1)
development center per development license for the sole purpose of
providing development, customization and integration services for EDS
Customers who have already entered into a Chordiant End User Software
License Agreement or an EDS customer agreement. All such modifications of
the Licensed Software developed by EDS shall be and remain the property of
EDS.
13
Chordiant will provide support Services for modifications owned by EDS on a
case-by-case basis under terms mutually agreed to in writing by the
parties.
4.5 Proprietary Markings. EDS shall not remove or destroy any proprietary
--------------------
markings or proprietary legends placed upon or contained within the
Licensed Software.
4.6 Duplication of Documentation. EDS may duplicate Licensed Software
----------------------------
Documentation, at no additional charge, for EDS' use or for use by a
customer of EDS in connection with the provision of Licensed Software so
long as all required proprietary markings are retained on all duplicated
copies.
4.7 Non-Disclosure. For the longer of, (i) the term of a License, or (ii) for
--------------
as long a EDS retains backup copies of the Licensed Software associated
with said License, and for two (2) years after, EDS will treat the Licensed
Software with the same degree of care and confidentiality which EDS
provides for similar information belonging to EDS which EDS does not wish
disclosed to the public, but not less than reasonable care. This provision
shall not apply to Licensed Software, or any portion thereof, which is (i)
already known by EDS without an obligation of confidentiality, (ii)
publicly known or becomes publicly known through no unauthorized act of
EDS, (iii) rightfully received from a third party without obligation of
confidentiality, (iv) disclosed without similar restrictions by Chordiant
to a third party, (v) approved by Chordiant for disclosure, or (vi)
required to be disclosed pursuant to a requirement of a governmental agency
or law so long as EDS provides Chordiant with timely prior written notice
of such requirement. It will not be a violation of this Section if (A) EDS
provides access to and the use of the Licensed Software to third parties
providing services to EDS so long as EDS secures execution by such third
parties of a confidentiality agreement as would normally be required by
EDS, or (B) EDS independently develops software which is similar to
Licensed Software, so long as such independent development is substantiated
by written documentation.
4.8 Licensed Software Support Services. The support Services set forth below
----------------------------------
for the Licensed Software shall be provided by Chordiant to EDS during the
Warranty Period at no charge to EDS. Thereafter, such support Services
shall be provided by Chordiant, upon EDS' request, for either a fixed or
open-ended term, at the applicable Charges set forth in Exhibit B, upon the
terms contained in the next Section. EDS may discontinue such support
Services at any time by providing thirty (30) days' advance written notice
to Chordiant. If such support Services were provided by Chordiant for an
open-ended term, EDS shall promptly receive a refund of pre-paid support
Charges which reflects the amount for discontinued support Services after
the effective date of the notice.
(a) Chordiant shall promptly notify EDS of any defects, errors or
malfunctions ("Defects") in the Licensed Software or Documentation of
which Chordiant becomes aware from any source and shall promptly
provide to EDS modified versions of Licensed Software or Documentation
which incorporate corrections of any Defects ("Corrections").
Chordiant shall also provide to EDS all operational and support
assistance necessary to cause Licensed Software to perform in
accordance with its Applicable Specifications and remedial support
designed to provide a by-pass or temporary fix to a Defect until the
Defect can be permanently corrected. Chordiant shall use its best
efforts to respond to requests from EDS for Licensed Software support
in a manner and time frame which are reasonably responsive considering
the nature and severity of the Defect which gave rise to such request.
14
(b) Chordiant shall provide to EDS all changes to Licensed Software
developed by Chordiant which are generally made available to other
customers of Chordiant. Such changes could be designated as an Update
or Enhancement as follows:
(i) Chordiant shall provide to EDS any improvement or update to the
Licensed Software which is denoted by Chordiant by a change to
the tenths digit to the right of the decimal point in the then-
current version number of the Licensed Software [x.(x)] (an
"Update"). EDS shall have the option to implement any Update and
any failure by EDS to so implement shall not affect EDS' right to
continue to receive support and maintenance Services; provided
that all applicable support Service fees have been paid.
(ii) Chordiant shall provide to EDS any improvement or update to the
Licensed Software which is denoted by Chordiant by a change to
the digit to the left of the decimal point in the then-current
version number of the Licensed Software [(x).x] (an
"Enhancement"). EDS shall have the option to implement any
Enhancement; however, EDS' only has the right to continue to
receive support Services if it is on the most current Enhancement
or the one just prior to such most current Enhancement; provided
that all applicable support Service fees have been paid. If EDS
stops support Services and is not operating on the most current
Enhancement or the one just prior to such most current
Enhancement, and wishes to resume support Services, EDS must
bring its support Service payments current and install the most
current Enhancement; i.e., EDS did not pay support Services for
three (3) years and the Licensed Software EDS is running is
version 2.0, but the current version is 7.0, EDS would have to
pay for those prior three (3) years plus the current year and
implement Enhancements required to be bring such Licensed
Software to version 7.0. The ability to bring support Services
current is contingent on Chordiant still offering support
Services for such Licensed Software.
If EDS is no longer receiving support Services for a specific
Product(s), and Chordiant is considering whether to stop offering
support Services for said Product(s), Chordiant shall notify EDS
they are considering such decision and provide EDS with one (1)
month to become current on support Service payments for such
Product(s). This will allow EDS to either (i) be eligible for
receipt of Source Code through escrow if Chordiant's decision is
in fact to stop providing support Services for said specific
Product(s), or (ii) begin receiving support Services for said
Product(s) at whatever level of support Services Chordiant is
offering at the time.
(c) Chordiant offers two levels of support Services, (i) Standard, which
provides telephone hot-line support twenty-four (24) hours per day,
five (5) days per week; and (ii) Premium, which provides telephone
hot-line support twenty-four (24) hours per day, seven (7) days per
week. The applicable Charges for such support Services are set forth
in Exhibit B.
The severity assigned to a problem will be designated by EDS and will
determine the response time and associated time to fix the problem or
provide a work-around by Chordiant. The priority assigned will be
reviewed by Chordiant for potential re-classification. However, any
such re-classification shall be upon mutual agreement by the parties.
The problem severity levels and associated times follows:
15
(i) Severity 1 - Critical. A problem that affects the behavior of
the Licensed Software, software system, or application such
that: 1) an essential marketed product, component, concept, and
or function is missing or cannot be completed, or 2) a user
cannot complete essential operations, or 3) the work in progress
terminates/crashes causing loss of data, with no known work-
around.
Response time - within one (1) hour
Time to fix or provide a work-around - within twenty four (24)
hours of the problem being reported.
(ii) Severity 2 - Serious. A problem that affects the behavior of the
Licensed Software, software system, or application such that: 1)
essential performance and/or functionality may be missing, or
may be degraded, or 2) degradation of system performance and/or
functionality imposes unreasonable constraints on users. These
problems normally prevent the continuation of work in progress.
Response time - within eight (8) hours
Time to fix or provide a work-around - within two (2) working
days of the problem being reported.
(iii) Severity 3 - Problem. A Licensed Software problem that is a user
inconvenience or annoyance and which may represent a loss of
non-essential capability or is not required for essential
operations or functional capability. The problem may adversely
affect the user's accomplishment of an essential operation or
functional capability. Examples of problems in this
classification include, but are not limited to: functions that
do not operate as documented/expected, unanticipated results
from an operation, or functional documentation errors.
Response time - within five (5) working days
Time to fix or provide a work-around - within fifteen (15)
working days of the problem being reported.
(iv) Severity 4 - Minor. A Licensed Software problem that is a user
inconvenience or annoyance and which does not affect an
operational or essential functional capability. This
classification is for problems that generally are annoyances,
non-functional documentation or non-user friendly applications
and/or documentation.
Response time - within fifteen (15) working days
Time to fix or provide a work-around - next product or
documentation release.
(v) Severity 5 - Other. All other problems, errors, defects and
change requests not covered severity categories 1 through 4.
Response time - within thirty (30) working days
Time to fix or provide a work-around - no commitment, to be
determined on a case-by-case basis.
16
(d) Chordiant shall provide to EDS any revisions to the existing
Documentation developed for the Licensed Software or necessary to
reflect all Corrections, Improvements, or Updates.
(e) Chordiant shall make Licensed Software training available to persons
designated by EDS to the extent agreed upon by the parties.
(f) If the applicable Charge for Licensed Software is payable on a
periodic basis, and such Charge includes provision of support
Services, then if an Event of Default as described in the Section of
this Agreement titled "Provision of Source Code" occurs or an event
described in the Section of this Agreement titled "Termination for
Insolvency or Bankruptcy" occurs and if Chordiant fails to provide the
support Services described above, then EDS' Charge for the affected
Licensed Software shall be immediately reduced to reflect such failure
by subtracting that portion of the Charge allocable to the provision
of support Services.
4.9 Licensed Software Support Services Options. EDS may obtain the support
------------------------------------------
Services described in the previous Section for Licensed Software on a
central site support basis and/or on an individual site support basis. In
the absence of a designation of central or individual site support in a
Purchase Order, such support shall be deemed to be individual site support.
The Charges for each option shall be as set forth in Exhibit B or as
otherwise agreed upon by the parties. Where "central site support" is
requested, support Services shall be provided by Chordiant to and shall be
requested by EDS through a single point of contact identified by EDS on a
Purchase Order. To the extent necessitated by geographic diversity or where
required in order to support multiple time zones, EDS may designate
multiple central site support locations. With respect to central site
support, Chordiant shall provide to EDS one master disk and one copy of all
Documentation relating to each Correction, Improvement, or Update. EDS
shall be entitled to copy the disk and Documentation and distribute the
copies or electronically transmit the copied information to each location
supported by the central site. A designation of central site support shall
not prevent an individual user of Licensed Software from contacting
Chordiant in the event of a Severity 1 call. Where "individual site
support" is requested, support Services shall be provided by Chordiant to
the applicable licensed CPU, Site, or Network, or, in the case of a
Corporate Software License, to a licensed user.
4.10 Provision of Source Code. EDS' ability to utilize adequately Licensed
------------------------
Software will be seriously jeopardized if Chordiant fails to maintain or
support such Licensed Software unless complete Source Code and related
Documentation is made available to EDS for EDS' use in satisfying EDS'
maintenance and support requirements. Therefore, Chordiant agrees that if
an "Event of Default" occurs, then Chordiant will provide to EDS one copy
of the most current version of the Source Code for the affected Licensed
Software and associated Documentation in accordance with the following:
(a) An Event of Default shall be deemed to have occurred if Chordiant: (i)
ceases to market or make available maintenance or support Services for
the Licensed Software during a period in which EDS has a License or
Licenses and is receiving, or is entitled to receive as per Section
4.8 of this Agreement, such maintenance and support for such
License(s) and Chordiant has not promptly cured such failure despite
EDS' demand that Chordiant make available or perform such maintenance
and support, (ii) ceases business operations generally or (iii) has
transferred all or substantially all of its assets or obligations set
forth
17
in this Agreement to a third party which has not assumed all of the
obligations of Chordiant set forth in this Agreement.
(b) Chordiant will promptly and continuously update and supplement the
Source Code as necessary with all revisions, Corrections,
enhancements, and other changes developed for the Licensed Software
and Documentation. Such Source Code shall be in a form suitable for
reproduction and use by computer and photocopy equipment, and shall
consist of a full source language statement of the program or programs
comprising the Licensed Software and complete program maintenance
Documentation which comprise the pre-coding detail design
specifications, and all other material necessary to allow a reasonably
skilled programmer or analyst to maintain and enhance the Licensed
Software without the assistance of Chordiant or reference to any other
materials.
(c) Source Code received under this Section becomes a part of Licensed
Software. The governing License for the Licensed Software includes the
right to use Source Code received under this Section as necessary to
modify, maintain, and update the Licensed Software.
(d) Upon request by EDS, Chordiant will deposit in escrow with an escrow
agent acceptable to EDS and pursuant to a mutually acceptable escrow
agreement supplemental to this Agreement, a copy of the Source Code
which corresponds to the most current version of the Licensed Software
in use by EDS. EDS shall pay all fees of the escrow agent for services
provided. Chordiant's entry into, or failure to enter into, an
agreement with an escrow agent or to deposit the described materials
in escrow shall not relieve Chordiant of its obligations to EDS
described in this Section.
(e) If, as a result of an Event of Default, Chordiant fails to provide
required support Services, then any periodic license fee which EDS is
required to pay under this Agreement for Licensed Software shall be
reduced to reflect such lack of support Services. At such time as
Chordiant commences offering the support Services described in this
Agreement for Licensed Software, EDS may obtain such support Services
as provided for elsewhere in this Agreement.
4.11 Acquisition of Third Party Software. If EDS has acquired software products
-----------------------------------
from a third party and rights to such software products are subsequently
acquired by Chordiant (whether through purchase of the third party in whole
or in part, through purchase of the software products, through acquisition
of the rights to market the software, or through any other means), then EDS
shall have the option of (i) continuing to use the software products under
the original license agreement with such third party at no additional
charge to EDS other than applicable fees identified in such license
agreement, or (ii) using the software products under the terms and
conditions of this Agreement.
4.12 Software from an Authorized Third Party. If EDS acquires Chordiant's
---------------------------------------
software products from a value added reseller, dealer, distributor, or
other Chordiant authorized third party provider or if the Licensed Software
is embedded in software products acquired from a third party, Chordiant
agrees that, at EDS' option, such software products shall be deemed to have
been acquired under this Agreement.
4.13 Software Audit.
--------------
18
Upon sixty (60) days advance notice from Chordiant, and no more often than
once in any twelve (12) month period, Chordiant may audit EDS' use of the
Chordiant Licensed Software solely to verify EDS has not exceeded the
number of Licenses EDS has purchased. Said audit will be conducted by a
third party audit professional selected by Chordiant with the prior written
consent of EDS, during normal business hours, and not disrupt EDS'
business. Chordiant shall be responsible for the fees and costs of such
audit. If EDS has exceeded the number of Licenses it has purchased,
Chordiant's sole and exclusive remedy will be to have EDS purchase the
additional Licenses required to equal actual usage.
ARTICLE V. WARRANTIES, INDEMNITIES, AND LIABILITIES
----------------------------------------------------
5.1 Warranty. Chordiant represents and warrants that:
--------
(a) Chordiant has not and will not enter into agreements or commitments
which are inconsistent with or conflict with the rights granted to EDS
in this Agreement;
(b) No portion of the Products contain, at the time of delivery, any "back
door," "time bomb," "Trojan horse," "worm," "drop dead device,"
"virus," or other computer software routines or hardware components
designed to (i) permit access or use of either the Products or EDS'
computer systems by Chordiant or a third party not authorized by this
Agreement, (ii) disable, damage or erase the Products or data, or
(iii) perform any other such actions;
(c) The Products and the design thereof shall not contain preprogrammed
preventative routines or similar devices which prevent EDS from
exercising the rights set forth in Article IV of this Agreement or
from utilizing the Products for the purpose for which they were
designed;
(d) The media containing each Product shall be new and free from defects
in manufacture, materials, and design. Each Product and its media
shall function properly under ordinary use and operate in conformance
with its Applicable Specifications and Documentation from the date of
receipt until the date thirty (30) days from the applicable Acceptance
Date of such Product;
(e) The Products are, and shall continue to be as long as EDS is receiving
support Services, data, program, and upward compatible with any other
Products available or to be available from Chordiant so that data
files created for a Product can be utilized without adaptation with
other Products and Products will operate with other Products and will
not result in the need for alteration, emulation, or other loss of
efficiency. Chordiant shall provide to EDS at least ninety (90) days
prior written notice to discontinue any Product; and
(f) Neither the performance nor the functionality of the Products will be
affected by any changes to the date format or date calculations within
any part of the Product either before, during or after the year 2000.
During the Warranty Period, Chordiant will provide warranty Service to EDS
at no additional cost and will include all Services or replacement Products
or Product media necessary to enable Chordiant to comply with the
warranties set forth in this Agreement. Chordiant shall pass
19
through to EDS any manufacturers' warranties which Chordiant receives on
the Products and, at EDS' request, Chordiant shall enforce such warranties
on EDS' behalf. Chordiant agrees that EDS shall be entitled to pass through
to Product end users any warranties received from Chordiant for such
Products pursuant to this Agreement.
EXCEPT AS SET FORTH IN THIS AGREEMENT, CHORDIANT EXPRESSLY DISCLAIMS ALL
WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY IN ANY TERRITORY OR
JURISDICTION, RELATING TO THE PRODUCTS, AND FURTHER EXPRESSLY EXCLUDES ANY
WARRANTY FOR NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR
MERCHANTABILITY.
5.2 Proprietary Rights Indemnification.
----------------------------------
Chordiant represents and warrants that as of the Effective Date: no Product
provided under this Agreement is the subject of any litigation
("Litigation"), furthermore, if a Product becomes the subject of Litigation
after the Effective Date Chordiant will immediately notify EDS of such
Litigation. EDS may terminate any License, and receive a full refund of any
amounts paid for such Product after the date legal process regarding such
Litigation has been served on Chordiant. Further; Chordiant represents and
warrants that to Chordiant's knowledge, (i) Chordiant has all right, title,
ownership interest, and/or marketing rights necessary to provide the
Products to EDS, and (ii) as of the Effective Date each License, the
Products and their sale, license, and use hereunder do not and shall not
directly or indirectly violate or infringe upon any copyright, patent,
trade secret, or other proprietary or intellectual property right of any
third party or contribute to such violation or infringement.
(a) Chordiant shall indemnify and hold EDS and Product end users and their
respective successors, officers, directors, employees, and agents
harmless from and against any and all actions, claims, losses,
damages, liabilities, awards, costs, and expenses (including legal
fees) resulting from or arising out of any Litigation, any breach or
claimed breach of the foregoing warranties, or which is based on a
claim that each License, the Products and their sale, license, and use
hereunder do not, and shall not directly or indirectly violate or
infringe upon any copyright, patent, trade secrete, or other
proprietary or intellectual property right of any third party, or
contribute to such violation or infringement ("Infringement"), and
Chordiant shall defend and settle, at its expense, all suits or
proceedings arising therefrom. EDS shall inform Chordiant of any such
suit or proceeding against EDS, shall provide all reasonable
assistance and cooperation, at Chordiant's expense, and shall have the
right to participate in the defense of any such suit or proceeding at
its expense and through counsel of its choosing. Chordiant shall
notify EDS of any actions, claims or suits against Chordiant based on
an alleged Infringement of any party's intellectual property rights in
and to the Products. In the event an injunction is sought or obtained
against use of the Products or in EDS' opinion is likely to be sought
or obtained, Chordiant shall promptly, at its option and expense,
either (A) procure for EDS and Product end users the right to continue
to use the infringing Product as set forth in this Agreement, (B)
replace or modify the infringing Products to make its use non-
infringing while being capable of performing the same function without
degradation of performance. If, after the use of reasonable best
efforts, neither option (A) or (B) is accomplished by Chordiant within
thirty (30) days of the effective date of an injunction then Chordiant
will refund the unamortized portion of the Charges paid to Chordiant
for such Product amortized on a five (5) year straight line basis from
the
20
Acceptance Date of such Product, and any prepaid amounts associated
with the affected Product.
(b) The provisions of the foregoing indemnity shall not apply with respect
to any instances of alleged Infringement based upon or arising out of:
(i) alterations to Products where such alleged Infringement would not
have occurred but for such alteration (except for those alterations
made by Chordiant, third parties retained by Chordiant, or otherwise
made prior to EDS' receipt of said Product); (ii) failure of EDS to
use updated Products that are provided by Chordiant (at no cost to
EDS) and were provided to avoid Infringement; provided such update is
identified in writing as being provided for such purpose; (iii) use of
any Products in connection with or in combination with any equipment,
devices or software which have not been supplied or recommended by
Chordiant, where such alleged Infringement would not have occurred but
for the use of such Products in connection with or in combination with
such equipment, devices or software; or (iv) use of Products in a
manner for which same were neither designed nor contemplated as
reflected in the Documentation. Notwithstanding any other provisions
hereof, the forgoing indemnity shall not apply with respect to any
Infringement based upon EDS activities associated with such infringing
Product after Chordiant has completed performance of its replace,
repair or refund obligations in (a) above.
(c) THE FOREGOING SECTIONS 5.2(a) AND 5.2(b) STATE THE SOLE AND EXCLUSIVE
REMEDY OF EDS AND THE ENTIRE LIABILITY AND OBLIGATION OF CHORDIANT
WITH RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY RIGHT OF A THIRD PARTY BY THE PRODUCTS OR ANY
PART THEREOF.
5.3 Cross Indemnification. In the event any act or omission of a party or
---------------------
its employees, servants, agents, or representatives causes or results in
(i) damage to or destruction of property of the other party or third
parties, and/or (ii) death or injury to persons including, but not limited
to, employees or invitees of either party, then such party shall indemnify,
defend, and hold the other party harmless from and against any and all
claims, actions, damages, demands, liabilities, costs, and expenses,
including reasonable attorneys' fees and expenses, resulting therefrom.
The indemnifying party shall pay or reimburse the other party promptly for
all such damage, destruction, death, or injury.
5.4 Limitation of Liability. Neither party shall be liable to the other
-----------------------
pursuant to this Agreement for any amounts representing loss of profits,
loss of business or indirect, consequential, exemplary, or punitive damages
of the other party. The foregoing shall not limit the indemnification,
defense and hold harmless obligations set forth in this Agreement, and
shall not apply to any unauthorized use or disclosure of Chordiant's Source
Code by EDS.
5.5 Insurance. Chordiant shall, at Chordiant's sole expense, maintain the
---------
following insurance:
(a) Commercial General Liability Insurance including contractual
coverage: The limits of this insurance for bodily injury and property
damage combined shall be at least:
Each Occurrence Limit $1,000,000
General Aggregate Limit $2,000,000
Products-Completed Operations Limit $1,000,000
Personal and Advertising injury Limit $1,000,000
21
(b) Business Automobile Liability Insurance: Should the performance of
this Agreement involve the use of automobiles, Chordiant shall provide
comprehensive automobile insurance covering the ownership, operation
and maintenance of all owned, non-owned and hired motor vehicles.
Chordiant shall maintain limits of at least $1,000,000 per occurrence
for bodily injury and property damage combined.
(c) Workers' Compensation Insurance: Such insurance shall provide
coverage in amounts not less than the statutory requirements in the
state where the work is performed, even if such coverage is elective
in that state.
(d) Employers Liability Insurance: Such insurance shall provide limits
of not less than $1,000,000 per occurrence.
The insurance specified in (a) and (b) above shall: (i) name EDS, its
directors, officers, employees and agents as additional insureds, and, (ii)
provide that such insurance is primary coverage with respect to all
insureds and additional insureds.
The above insurance coverages may be obtained through any combination of
primary and excess or umbrella liability insurance. EDS may require higher
limits or other types of insurance coverage(s) as necessary and appropriate
under the applicable purchase order.
Chordiant shall provide at EDS' request certificates evidencing the
coverages, limits and provisions specified above on or before the execution
of the Agreement and thereafter upon the renewal of any of the policies.
Chordiant shall require all insurers to provide EDS with a thirty (30) day
advanced written notice of any cancellation, nonrenewal or material change
in any of the policies maintained in accordance with this Agreement.
5.6 Survival of Article V. The provisions of Sections 5.2, 5.3, 5.4 and 5.6
---------------------
shall survive the term or termination of this Agreement for any reason.
ARTICLE VI. PAYMENTS TO SUPPLIER
---------------------------------
6.1 Charges, Prices, and Fees for Licensed Software and Services. Charges,
------------------------------------------------------------
prices, and fees ("Charges") and discounts, if any, for Licensed Software
and Services shall be determined as set forth in Exhibit B, in a Purchase
Order, or as otherwise agreed upon by the parties, unless modified as set
forth in this Agreement. Upon EDS' reasonable request, Chordiant shall: (i)
provide to EDS current copies of Chordiant's standard published prices, and
(ii) records which substantiate that EDS has received the Charges and
discounts to which EDS is entitled to under this Agreement. In no event
shall Charges exceed Chordiant's then current established charges, prices
and fees. If promotional discounts or programs are extended to other
customers, dealers, or distributors of Chordiant, EDS shall be entitled to
participate in such promotional discounts or programs. All purchases which
utilize any such discounts shall be deemed for all purposes including,
without limitation, for purposes of calculating accumulated purchases and
any discounts hereunder, to have been purchased or licensed under this
Agreement.
6.2 Modifications to Charges. Where a change in an established Charge for
------------------------
Licensed Software or Services is provided for in this Agreement, Chordiant
shall give to EDS at least ninety (90) days' prior written notice of such
change.
22
(a) Any increase in a Charge shall not occur during the first twelve (12)
months of this Agreement, during the term of the applicable Purchase
Order or during the specified period for performance of Services,
whichever period is longer. Thereafter, any increase in a Charge
shall (i) not occur unless a minimum of twelve (12) months has elapsed
since the effective date of the previously established Charge, and
(ii) not exceed five percent 5% of such Charge.
(b) All purchase orders issued by EDS prior to the end of the required
notice period will be honored at the then current Charges so long as
the scheduled delivery date of the applicable Licensed Software or
Services is within ninety (90) days after the effective date of the
increase.
(c) If Chordiant's established Charge, less any applicable discount or
promotion, on the scheduled delivery date is lower than the
established Charge for such Licensed Software or Service stated in the
applicable Purchase Order, then EDS shall be entitled to obtain such
Licensed Software or Service at such lower Charge, less any applicable
discount or promotion.
6.3 Auto Payment. This Section shall apply to Purchase Orders identified as
------------
being subject to automatic payment by EDS.
(a) Single Payment for Recurring Charges. All Charges which are due and
------------------------------------
payable on a monthly, annual or other periodic basis for Licensed
Software and Services ("Recurring Charges") shall be paid by EDS on
the same date of the month for each month that such Charges are due
(the "Remit Date"). The initial payment for a Recurring Charge shall
be made on the first Remit Date after the Applicable Event provided
that such Applicable Event occurs at least five (5) days prior to the
first Remit Date. An "Applicable Event" is the event set forth in a
Purchase Order that initiates payment of Charges (such as the
installation, receipt, or acceptance of the Licensed Software; or the
commencement or completion of Services). If the Applicable Event
occurs less than five (5) days prior to the first Remit Date, the
initial payment for such Recurring Charge shall be made on the
following Remit Date, and EDS shall not be subject to interest or
penalties as a result of such late payment.
(b) Payment for Other Charges. Except for Recurring Charges, or unless
-------------------------
otherwise agreed to by the parties in writing, all payments due
Chordiant for Licensed Software and Services shall be paid within
thirty (30) days after the date of the Applicable Event.
(c) Invoices Required Under Auto Payment. Chordiant must send EDS an
------------------------------------
invoice to receive payment for any amounts due for any Charges which
are payable and have not been identified on the applicable Purchase
Order which is subject to automatic payment.
(d) Reconciliation. From time to time, at either party's request, the
--------------
other party shall assist with the reconciliation of the payments made
by EDS to Chordiant.
(e) Taxing Jurisdictions. Chordiant shall provide EDS with the list of
--------------------
states and taxing jurisdictions, and their respective registration
numbers where Chordiant is qualified and registered to collect
sales/use taxes in all of the taxing jurisdictions within that state.
If such written notification is not received by EDS from Chordiant,
then EDS shall remit
23
the appropriate tax directly to the taxing authority. Chordiant shall
promptly notify EDS of any additional jurisdictions to which Chordiant
may qualify and register to collect sales/use taxes.
6.4 Payment Through Invoicing. This Section applies to Purchase Orders
-------------------------
issued by EDS which are not identified as being subject to automatic
payment or to any invoice received by EDS from Chordiant as permitted by
this Agreement.
(a) Except as otherwise set forth in this Agreement, any undisputed sum
due to Chordiant pursuant to this Agreement shall be payable within
thirty (30) days after receipt by EDS of a correct invoice therefor
from Chordiant. Chordiant shall invoice EDS on or after the
applicable Acceptance Date for the Licensed Software covered by such
invoice. Periodic payments, if any, due to Chordiant pursuant to this
Agreement shall be invoiced at the beginning of the period to which
they apply. Payment for any other Services shall be invoiced as
agreed upon by the parties or, in the absence of an agreement, upon
completion of such Services.
(b) A "correct" invoice shall contain (i) Chordiant's name and invoice
date, (ii) the specific Purchase Order number if applicable, (iii)
description including serial number as applicable, price, and quantity
of the Licensed Software or Services actually delivered or rendered,
(iv) credits (if applicable), (v) name (where applicable), title,
phone number, and complete mailing address of responsible official to
whom payment is to be sent, and (vi) other substantiating
documentation or information as may reasonably be required by EDS from
time to time. A correct invoice must be submitted to the appropriate
invoice address listed on the applicable Purchase Order.
6.5 Taxes.
-----
(a) Unless EDS provides evidence of exemption, EDS shall pay or reimburse
Chordiant, where EDS is liable under applicable tax statute, amounts
equal to taxes which are imposed upon EDS' acquisition of Products or
Services including federal excise taxes, or sales or use taxes;
provided, however, EDS shall not be obligated to pay or reimburse
Chordiant for any taxes attributable to the sale of any Products or
Services which are imposed on or measured by net or gross income,
capital, net worth, franchise, privilege, any other taxes, or
assessments, nor any of the foregoing imposed on or payable by
Chordiant.
(b) Chordiant agrees to reasonably cooperate with EDS in the audit or
minimization of any applicable tax and shall make available to EDS,
and any taxing authority, all information, records, or documents
relating to any audits or assessments attributable to or resulting
from the payment process under this Agreement, and the filing of any
tax returns or the contesting of any tax. In the event Chordiant is in
dispute with such taxing authority, Chordiant reserves the right to
reasonably withhold any such information records or documents during
such dispute period.
EDS shall not be obligated to pay or reimburse Chordiant for additions
to taxes, penalties, interest, fees, or other expenses or costs, if
any, incurred by EDS as a result of, or attributable to, (i)
Chordiant's failure to verify taxability of a purchase, (ii)
Chordiant's failure to correctly calculate or remit taxes in a timely
manner, or (iii) Chordiant's
24
negligence, misconduct or failure to file properly any required
returns or reports, or other required documents.
(c) Upon written notification by EDS and subsequent verification by
Chordiant, Chordiant shall reimburse or credit, as applicable, EDS in
a timely manner, for any and all taxes erroneously paid by EDS.
(d) EDS shall provide Chordiant with, and Chordiant shall accept in good
faith, resale, direct pay, or other exemption certificates, as
applicable. Chordiant agrees to separately identify on the invoice the
taxable and non-taxable purchases, the types of tax and the taxing
authorities.
(e) Where Products are destined or Services are performed internationally,
then at EDS' direction, payment may be made by EDS or its affiliate
(i) in country to the local affiliate, (ii) in the United States, or
(iii) in a country mutually agreed upon by the parties.
(f) If EDS or an affiliate of EDS is required by law to make any deduction
or to withhold from any sum payable hereunder, then the sum payable by
EDS or such affiliate of EDS upon which the deduction is based shall
be paid to Chordiant net of such deduction or withholding. EDS or such
affiliate of EDS shall pay the applicable tax authorities any such
required deduction or withholding.
ARTICLE VII. TERMINATION
-------------------------
7.1 Termination for Cause. Except as provided below by the Section of this
---------------------
Agreement titled "Termination for Non-Payment," in the event that either
party materially or repeatedly defaults in the performance of any of its
duties or obligations set forth in this Agreement, and such default is not
substantially cured within thirty (30) days after written notice is given
to the defaulting party specifying the default, then the party not in
default may, by giving written notice thereof to the defaulting party,
terminate the applicable License or Purchase Order relating to such default
as of a date specified in such notice of termination. Chordiant shall also
have the right to reject any unfilled or future Purchase Orders from the
business unit responsible for such default.
7.2 Termination for Insolvency or Bankruptcy. Either party may terminate this
----------------------------------------
Agreement and any Purchase Order by giving written notice to the other
party in the event any of the following occur and are not resolved in such
party's favor within forty five (45) days of such occurrence date: (i) the
liquidation or insolvency of the other party, (ii) the appointment of a
receiver or similar officer for the other party, (iii) an assignment by the
other party for the benefit of all or substantially all of its creditors,
(iv) entry by the other party into an agreement for the composition,
extension, or readjustment of all or substantially all of its obligations,
or (v) the filing of a meritorious petition in bankruptcy by or against the
other party under any bankruptcy or debtors' law for its relief or
reorganization.
7.3 Termination for Non-Payment. Chordiant may terminate a Purchase Order, or
---------------------------
any portion thereof, or any License granted in connection with such
Purchase Order, if EDS fails to pay when due any undisputed amounts due
pursuant to such Purchase Order and such failure continues for a period of
sixty (60) days after the last day payment is due, so long as Chordiant
25
gives EDS written notice of the expiration date of the aforementioned sixty
(60) day period at least thirty (30) days prior to the expiration date.
7.4 Termination of Software License. EDS may terminate any License for any
-------------------------------
reason by providing written notice to Chordiant. If EDS elects to so
terminate a License, or if a License is terminated pursuant to 7.1 or 7.3
above, EDS shall return to Chordiant or, at EDS' option, destroy, all
copies of the Licensed Software and Documentation in EDS' possession which
are the subject of the terminated License, and an authorized representative
of EDS shall certify such return or destruction. In the event EDS
terminates a License, Chordiant shall credit to EDS a prorated amount of
any prepaid charges for support Services for the Licensed Software.
7.5 Rights Upon Termination. Unless specifically terminated as set forth
-----------------------
in this Article, all Licenses (and EDS' right to use the Licensed Software
in accordance with such Licenses) and Purchase Orders which require
performance or extend beyond the term of this Agreement shall, at EDS'
option, be so performed and extended and shall continue to be subject to
the terms and conditions of this Agreement.
ARTICLE VIII. MISCELLANEOUS
----------------------------
8.1 Binding Nature, Assignment, and Subcontracting. This Agreement shall
----------------------------------------------
be binding on the parties and their respective successors in interest and
assigns. Either party shall have the right to assign this Agreement to its
parent corporation, if applicable; or to any entity into (i) which the
party may be merged or reorganized or (ii) which a controlling interest in
the associated party's capital stock or assets may be sold or assigned
provided, however, that such assignees assume in writing the liabilities,
obligations and responsibilities of the associated party under this
Agreement. If a party hereto assigns the Agreement as set forth above, such
party shall notify the other in writing of the assignment. Except as
provided herein, neither party have the power to assign this Agreement
without the prior written consent of the other party, which consent shall
not be unreasonably withheld or delayed. If either party subcontracts or
delegates any of its duties or obligations of performance in this Agreement
or in a Purchase Order to any third party, such party shall remain fully
responsible for complete performance of all of its obligations set forth in
this Agreement or in such Purchase Order and for any such third party's
compliance with the non-disclosure and confidentiality provisions set forth
in this Agreement.
8.2 Counterparts. This Agreement may be executed in several counterparts,
------------
all of which taken together shall constitute one single agreement between
the parties.
8.3 Headings. The Article and Section headings used in this Agreement are
--------
for reference and convenience only and shall not enter into the
interpretation hereof.
8.4 Authorized Agency. From time to time and at any time, EDS may assume
-----------------
operational responsibility for computer software programs acquired directly
or indirectly from Chordiant by third parties which become customers or
Affiliates, or which are acquired by EDS, after the Effective Date.
(a) With respect to such customers, and immediately upon execution of a
contract between EDS and a customer, the computer software programs
acquired from Chordiant by such customer shall be governed by the
terms and conditions of this Agreement and EDS may use such computer
software programs in accordance with this Agreement at no additional
26
charge to EDS or its customer, provided, however, that such computer
software programs may only be used by EDS on behalf of that customer.
With respect to each such customer, Chordiant, EDS and the customer
shall execute an access agreement authorizing EDS' use of the computer
software programs. Such access agreement shall be in a form
substantially similar to the Third Party System Access Agreement
attached to this Agreement as Exhibit C.
(b) With respect to any such affiliate, and upon Chordiant's receipt of
written notice from EDS and such affiliate, the license or other
agreement governing the use and support of such computer software
programs shall automatically be deemed to have been assigned to EDS,
provided, however, that such assigned license or other agreement shall
be superseded by, and the use and support of the computer software
programs shall be governed by, the terms and conditions of this
Agreement.
(c) With respect to any third party with which EDS either (i) buys,
leases, or otherwise acquires all or a substantial part of the assets
or business of such third party, or (ii) consolidates with or merges
with said third party, the license or other agreement governing the
use and support of such computer software programs shall automatically
be deemed to have been assigned to EDS. At that time, EDS may
supersede such assigned license or other agreement with the terms and
conditions of this Agreement, in which case the use and support of
such computer software programs shall be governed by the terms and
conditions of this Agreement, or EDS may elect to have the assigned
license or other agreement continue to govern the use of such computer
software programs.
8.5 Relationship of Parties. Both parties are performing pursuant to this
-----------------------
Agreement only as an independent contractors. Both parties have the sole
obligation to supervise, manage, contract, direct, procure, perform or
cause to be performed its obligations set forth in this Agreement, except
as otherwise agreed upon by the parties. Nothing set forth in this
Agreement shall be construed to create the relationship of principal and
agent between Chordiant and EDS. Chordiant shall not act or attempt to act
or represent itself, directly or by implication, as an agent of EDS or its
Affiliates or in any manner assume or create, or attempt to assume or
create, any obligation on behalf of, or in the name of, EDS or its
Affiliates.
8.6 Confidentiality. Each party acknowledges that in the course of
---------------
performance of its obligations pursuant to this Agreement, it may obtain
confidential and/or proprietary information of the other party or its
affiliates or customers. "Confidential Information" includes: information
relating to development plans, costs, finances, marketing plans, equipment
configurations, data, access or security codes or procedures utilized or
acquired, business opportunities, names of customers, research, and
development; the terms, conditions and existence of this Agreement; any
information designated as confidential in writing or identified as
confidential at the time of disclosure if such disclosure is verbal or
visual; and any copies of the prior categories or excerpts included in
other materials created by the recipient party. Each party agrees that, for
a period of two (2) years following its receipt of Confidential Information
from the other party or the other party's affiliates or customers, whether
before or after the Effective Date, such recipient party shall use the same
means it uses to protect its own confidential and proprietary information,
but in any event not less than reasonable means to prevent the disclosure
and to protect the confidentiality of the Confidential Information.
Further, the recipient party shall only use the Confidential Information
for purposes of this Agreement, and shall not disclose the Confidential
Information without the prior written consent of the other party. This
provision shall not apply to Confidential Information which is (i) already
known by the recipient party without an
27
obligation of confidentiality, (ii) publicly known or becomes publicly
known through no unauthorized act of the recipient party, (iii) rightfully
received from a third party (other than an affiliate or customer of the
party owning the Confidential Information) without an obligation of
confidentiality, (iv) disclosed without similar restrictions by the owner
of the Confidential Information to a third party (other than an affiliate
or customer of the party owning the Confidential Information), (v) approved
by the party owning the Confidential Information, in writing, for
disclosure, or (vi) required to be disclosed pursuant to a requirement of a
governmental agency or law so long as the recipient party provides the
other party with timely prior written notice of such requirement.
8.7 Media Releases. Except for any announcement intended solely for
--------------
internal distribution by Chordiant or any disclosure required by legal,
accounting, or regulatory requirements beyond the reasonable control of
Chordiant, all media releases, public announcements, or public disclosures
(including, but not limited to, promotional or marketing material) by
Chordiant or its employees or agents relating to this Agreement or its
subject matter, or including the name, trade name, trade xxxx, or symbol of
EDS or any affiliate of EDS, shall be coordinated with and approved in
writing by EDS prior to the release thereof. Chordiant shall not represent
directly or indirectly that any Licensed Software or Service provided by
Chordiant to EDS has been approved or endorsed by EDS or include the name,
trade name, trade xxxx, or symbol of EDS or any affiliate of EDS on a list
of Chordiant's customers without EDS' express written consent.
8.8 Dispute Resolution. In the event of any disagreement regarding
------------------
performance under or interpretation of this Agreement and prior to the
commencement of any formal proceedings, the parties shall continue
performance as set forth in this Agreement and shall attempt in good faith
to reach a negotiated resolution by designating a representative of
appropriate authority to resolve the dispute.
8.9 Electronic Communications. If Chordiant and EDS mutually agree, business
-------------------------
communications between the parties, including, but not limited to, purchase
orders, invoices, and payment may be submitted electronically. In such
case, the parties shall mutually agree in writing upon supplemental terms
and conditions, including technical standards, for the electronic exchange
of such items.
8.10 Proposals and Special Projects. EDS may request a written proposal, quote,
------------------------------
or bid from Chordiant for the provision of Licensed Software and/or
Services for a specific EDS project which may be governed by separately
negotiated terms and conditions. In such event, any Licensed Software and
Services obtained for such project shall be deemed for purposes of
calculating accumulated purchases and any discounts set forth in this
Agreement, to have been obtained pursuant to this Agreement.
8.11 Governmental Customers. This Agreement shall apply to the acquisition
----------------------
of Licensed Software or Services for use in or in support of the
performance of, or resale under, a contract with a state, county, or local
governmental entity (a "Governmental Customer"). Chordiant and EDS may
negotiate in good faith a supplemental agreement incorporating required
flow-down provisions or other provisions relating to, applicable to, or
required by such Governmental Customer or the proposed contract between EDS
and such Governmental Customer. All Licensed Software and Services obtained
pursuant to this Section shall be deemed for purposes of calculating
accumulated purchases and any discounts set forth in this Agreement, to
have been obtained pursuant to this Agreement, including purchases made by
EDS in support of the United States
28
Federal Government under a separate contract with Chordiant. EDS shall not
provide Product to the United States Federal Government or any agency
thereof under this Agreement.
8.12 International Business. This Agreement shall apply to the acquisition
----------------------
of Licensed Software and Services for use in or in support of the
performance or remarketing of Licensed Software and Services in countries
outside the United States and its territories. Chordiant and EDS and/or
their respective agents, distributors, or Affiliates authorized to conduct
business in such countries may negotiate in good faith supplemental
agreements incorporating further terms and conditions required by local
law. All Licensed Software and Services obtained pursuant to this Section
shall be deemed for purposes of calculating accumulated purchases and any
discounts set forth in this Agreement, to have been obtained pursuant to
this Agreement.
8.13 Compliance with Laws. In the performance of Services or the provision
--------------------
of Licensed Software pursuant to this Agreement, Both parties shall comply
with the requirements of all applicable laws, ordinances, and regulations
of the United States or any state, country, or other governmental entity.
In particular, the parties agree, as applicable, to comply with the United
States Export Administration Act, Executive Order No. 11246, as amended by
Executive Order No. 11375, the Vietnam Era Veterans Readjustment Assistance
Act of 1974, the Rehabilitation Act of 1973, the Immigration Reform and
Control Act of 1986, the Foreign Corrupt Practices Act, and the Americans
With Disabilities Act. This Section incorporates by reference all
provisions required by such laws, orders, rules, regulations, and
ordinances.
8.14 Labor. Chordiant shall comply with any labor jurisdictions applicable
-----
to Chordiant's performance pursuant to this Agreement and shall cooperate
with EDS in resolving any disputes resulting from any jurisdictional or
labor claims or stoppages. Upon request by Chordiant, EDS shall provide to
Chordiant clarification and guidelines regarding relationships with labor
and Chordiant's responsibilities with respect thereto.
8.15 Export. Neither party shall export any Licensed Software or information
------
protected hereunder by an obligation of confidentiality from the United
States, either directly or indirectly, without first obtaining a license or
clearance as required from the U.S. Department of Commerce or other agency
or department of the United States Government.
8.16 Notices. Wherever one party is required or permitted to give notice to
-------
the other pursuant to this Agreement, such notice shall be deemed given
when delivered in hand, when mailed by registered or certified mail, return
receipt requested, postage prepaid, or when sent by a third party courier
service where receipt is verified by the receiving party's acknowledgment,
and addressed as follows:
In the case of EDS:
Electronic Data Systems Corporation
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxx 00000
Attn: Manager, Contracts Administration
In the case of Chordiant:
CHORDIANT SOFTWARE, INC.
0000 Xxxxxxxxxxx Xx.
00
Xxxx Xxxx, XX 00000-0000
Attn: Contracts Administrator
Either party may from time to time change its address for notification
purposes by giving the other party written notice of the new address and
the date upon which it will become effective; first class, postage prepaid,
mail shall be acceptable for provision of change of address notices.
8.17 Force Majeure. The term "Force Majeure" shall be defined to include
-------------
fires or other casualties or accidents, acts of God, severe weather
conditions, strikes or labor disputes, war or other violence, or any law,
order, proclamation, regulation, ordinance, demand, or requirement of any
governmental agency.
(a) A party whose performance is prevented, restricted, or interfered with
by reason of a Force Majeure condition shall be excused from such
performance to the extent of such Force Majeure condition so long as
such party provides the other party with prompt written notice
describing the Force Majeure condition and takes all reasonable steps
to avoid or remove such causes of nonperformance and immediately
continues performance whenever and to the extent such causes are
removed.
(b) If, due to a Force Majeure condition, the scheduled time of delivery
or performance is or will be delayed for more than thirty (30) days
after the scheduled date, the party not relying upon the Force Majeure
condition may terminate, without liability to the other party, the
Purchase Order or any portion thereof covering the delayed Products or
Services.
(c) If a Force Majeure condition or other delay by Chordiant causes EDS to
terminate its business relationship with a third party for whom
delayed Products were ordered and EDS has no alternative use for the
Products after using reasonable efforts to relocate or otherwise
utilize the Products, then EDS may terminate the applicable Purchase
Order and Chordiant shall refund to EDS all amounts paid thereunder.
8.18 Severability. If, but only to the extent that, any provision of this
------------
Agreement is declared or found to be illegal, unenforceable, or void, then
both parties shall be relieved of all obligations arising under such
provision, it being the intent and agreement of the parties that this
Agreement shall be deemed amended by modifying such provision to the extent
necessary to make it legal and enforceable while preserving its intent. If
that is not possible, another provision that is legal and enforceable and
achieves the same objective shall be substituted. If the remainder of this
Agreement is not affected by such declaration or finding and is capable of
substantial performance, then the remainder shall be enforced to the extent
permitted by law.
8.19 Waiver. Any waiver of this Agreement or of any covenant, condition, or
------
agreement to be performed by a party under this Agreement shall (i) only be
valid if the waiver is in writing and signed by an authorized
representative of the party against which such waiver is sought to be
enforced, and (ii) apply only to the specific covenant, condition or
agreement to be performed, the specific instance or specific breach thereof
and not to any other instance or breach thereof or subsequent instance or
breach.
8.20 Remedies. Except with respect to remedies that have been identified as
--------
sole and exclusive remedies, all remedies set forth in this Agreement, or
available by law or equity shall be cumulative and not alternative, and may
be enforced concurrently or from time to time.
30
8.21 Survival of Terms. Termination or expiration of this Agreement for any
-----------------
reason shall not release either party from any liabilities or
obligations set forth in this Agreement which (i) the parties have
expressly agreed shall survive any such termination or expiration, or (ii)
remain to be performed or by their nature would be intended to be
applicable following any such termination or expiration.
8.22 Nonexclusive Market and Purchase Rights. It is expressly understood and
---------------------------------------
agreed that this Agreement does not grant to Chordiant an exclusive right
to provide to EDS any or all of the Licensed Software and Services and
shall not prevent EDS from developing or acquiring from other suppliers
computer software programs or services similar to the Licensed Software and
Services. Chordiant agrees that acquisitions by EDS pursuant to this
Agreement shall neither restrict the right of EDS to cease acquiring nor
require EDS to continue any level of such acquisitions. Estimates or
forecasts furnished by EDS to Chordiant prior to or during the term of this
Agreement shall not constitute commitments.
8.23 GOVERNING LAW. THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
-------------
AGREEMENT SHALL NOT BE GOVERNED BY THE PROVISIONS OF THE 1980 UNITED
NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
RATHER THESE RIGHTS AND OBLIGATIONS SHALL BE GOVERNED BY THE LAWS, OTHER
THAN CHOICE OF LAW RULES, OF THE STATE OF TEXAS.
8.24 Entire Agreement. This Agreement constitutes the entire and exclusive
----------------
statement of the agreement between the parties with respect to its subject
matter and there are no oral or written representations, understandings or
agreements relating to this Agreement which are not fully expressed in the
Agreement. This Agreement shall not be amended except by a written
agreement signed by both parties. All exhibits, documents, and schedules
referenced in this Agreement or attached to this Agreement, and each
Purchase Order are an integral part of this Agreement. In the event of any
conflict between the terms and conditions of this Agreement and any such
exhibits, documents, or schedules, the terms of this Agreement shall be
controlling unless otherwise stated or agreed. In the event of a conflict
between the terms and conditions of this Agreement and a Purchase Order
issued in accordance with Article II, the Purchase Order shall be
controlling with respect to those transactions covered by that Purchase
Order. Any other terms or conditions included in any shrink-wrap license
agreements, quotes, invoices, acknowledgments, bills of lading, or other
forms utilized or exchanged by the parties shall not be incorporated in
this Agreement or be binding upon the parties unless the parties expressly
agree in writing or unless otherwise provided for in this Agreement.
IN WITNESS WHEREOF, Chordiant and EDS acknowledge that each of the
provisions of this Agreement were expressly agreed to and have each caused this
Agreement to be signed and delivered by its duly authorized officer or
representative as of the Effective Date.
ELECTRONIC DATA SYSTEMS CORPORATION CHORDIANT SOFTWARE, INC.
By: /s/ Xxx X. Xxxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxxxx
Printed Name: Xxx X. Xxxxxxxxxxx Printed Name: Xxxxxx X. Xxxxxxxxxxx
Title: Contract Manager Title: EVP/CFO
Date: 7/23/98 Date: July 24, 1998
Fed. Tax ID #: 00-0000000
31
EXHIBIT A
EDS BUSINESS PRACTICES
----------------------
EDS' suppliers have played a key role in our continuous growth and success.
We sincerely appreciate your support. In order to avoid any conflict of
interest between our suppliers and EDS employees and to keep business
relationships on a professional basis, EDS has established and briefed its
employees on the following business practices. Please review these business
practices carefully and give a copy of this Exhibit to any of your associates
who have a need to know.
1. EDS expects its suppliers to provide a quality product or service for which
they will be fairly paid.
2. In selecting suppliers, EDS will test the market to assure quality of
service and fairness of price.
3. No EDS employee is to ask for anything of value from a supplier. Gifts
from a supplier such as tickets to athletic events, concerts or the
theater, personal travel, or any type of personal item are discouraged by
our business practices.
4. If any EDS employee is offered or accepts an item of value from a supplier,
the employee is to report it to the appropriate EDS management.
5. If any EDS employee engages in any type of unethical behavior such as
requesting anything of value from a supplier, the supplier is requested to
report the incident to the Director of Purchasing or the General Counsel of
EDS.
6. Occasional meals during visits to a supplier's facilities or a customer's
location during which a supplier incurs normal and reasonable marketing
expenses are acceptable. The EDS employee is required to report such meal
expenses to their management.
EDS appreciates your cooperation in complying with these business
practices.
A-1
EXHIBIT B
CHARGES, PRICES, AND FEES
-------------------------
LICENSED SOFTWARE and Services:
------------------------------
EDS shall be entitled to a forty percent (40%) discount off Chordiant's then
current list price on all products for a period of one year from the Effective
Date, except that such discount will not apply to licenses for Chordiant CCS
Development Systems for Systems Integrators. The parties shall negotiate in good
faith, EDS' discount commencing on the one (1) year anniversary of the Effective
and thereafter, but in no event shall such negotiated discount be less than
thirty percent (30%). During the period after the one (1) year anniversary but
prior to such negotiated discount being agreed upon, EDS shall be entitled to
purchase Products at a thirty five percent (35%) discount.
The Services discount shall be twenty percent (20%) off Chordiant's then
current list price; except EDS shall be entitled to a twenty five percent
(25%) discount on educational Services.
Chordiant's Product offering and North American list price for such Products,
and Services price list, as of the Effective Date is attached. If Products are
being purchased for international use, a fifteen percent (15%) uplift must be
added to the discounted price.
Notes:
1. An initial purchase to support an EDS customer must include one of the
following two Product sets at a minimum: 1) Chordiant CCS Foundation with
Chordiant CCS ChorApps, or 2) Chordiant CCS Development System for system
integrators with Chordiant CCS Reference Applications. Additional purchases
of such Products can be made individually. The two Product sets do not have
to be installed at the same Site, for example, Chordiant CCS Foundation
with Chordiant CCS ChorApps could be installed at Site A and Chordiant CCS
Development System for system integrators with Chordiant CCS Reference
Applications at Site B.
2. The Chordiant CCS Foundation License includes one copy of the Client
Platform, Server Platform, Telephony Platform, Database Platform, and
Electronic Gateways. If additional copies are required they may be
purchased as per this Exhibit B.
3. The Chordiant CCS Development System for system integrators License
includes one copy of the CCS support client, server, telephony, and
database objects and one electronic services facility. The Forte
Development System and tools are not included with the CCS Development
System, they must be purchased from Forte. Notwithstanding any other
provision of this Agreement to the contrary, a license for the Chordiant
CCS Development System for Systems Integrators is for the exclusive use of
EDS, for the sole purpose of performing development work. Any such
development work to be provided to an EDS client who has not previously
licensed Chordiant CCS shall be provided within a period not to exceed
ninety (90) days without the prior written consent of Chordiant Software.
4. The training fees apply to CCS training conducted at Chordiant CCS
University in Palo Alto, California. Students must pay their own travel and
related expenses. Training at any other location will be upon terms
mutually agreed to and signed by the parties.
B-1
5. If requested by EDS, Chordiant shall provide to EDS one Chordiant CCS
-------------------
Center of Excellence Demonstration System license at no charge except for
an annual maintenance and support fee of $25,000 per Center of Excellence.
With Chordiant's consent, additional Chordiant CCS Center of Excellence
Demonstration System licenses will be provided to EDS at no charge except
for an annual maintenance and support fee of $25,000 per Center of
Excellence. Notwithstanding any other provision of this Agreement to the
contrary, a license for a Chordiant CCS Center of Excellence Demonstration
System is for the exclusive use of EDS, for the sole purpose of
demonstrating Chordiant CCS.
B-2
Chordiant CCS - Release 1.3
Price List
------------------------------------------------------------------------------------------------
Global System Integrator License (GSI) License Fees
------------------------------------
Product Description Required Optional
------------------------------------------------------------------------------------------------
Chordiant CCS Development System for GSI Centers $400,000
(Note 6)
. Chordiant CCS ChorServices (System Services)
. Chordiant CCS ChorObjects (Business Services)
. Chordiant CCS Developer Training
Includes one developer training class for
10 developers
GSI Distributed Service Centers Deployment Option
-------------------------------------------------
(Note 7)
. First Additional GSI Center $300,000
. Second and Subsequent Additional GSI Centers $150,000
Includes one developer training class for
each center
Additional Components
---------------------
. Client Platform $ 25,000
. Server Platform $ 25,000
. Telephony Platform $ 50,000
. Database Platform $ 25,000
. Electronic Gateways $ 50,000
------------------------------------------------------------------------------------------------
Chordiant CCS Reference Applications $100,000
------------------------------------------------------------------------------------------------
Chordiant CCS Development System Client Licenses
1 - 50 (per client license fee) $ 2,000
51 - 100 $ 1,500
101 - 200 $ 1,250
201 - 500 $ 1,000
------------------------------------------------------------------------------------------------
Chordiant CCS - Release 1.3
Price List
-----------------------------------------------------------------------------------------------------------------------------------
Description of Services Service Fees
-----------------------------------------------------------------------------------------------------------------------------------
Chordiant CCS Annual Maintenance and Support
. End-User Support for Chordiant CCS 20% of Chordiant CCS
Standard Product (12 Months) Product License Fee
. Developer Support for Chordiant CCS $14,000. Per Client
Development System Support - 12 Months License
. Development Support for Chordiant CCS $8,500. Per Client
Development System Support - 6 Months License
-----------------------------------------------------------------------------------------------------------------------------------
Chordiant Consulting Services
. Engineer $1,640 per day
. Project Manager $2,360 per day
. Technical Architect $2,360 per day
. Business Analyst $2,360 per day
. Chief Technologist $2,800 per day
------------------------------------------------------------------------------------------------------------------------------------
Chordiant CCS Services
. Systems Integration Quote
. Installation and Deployment Quote
. Expert Consulting Quote
-----------------------------------------------------------------------------------------------------------------------------------
Chordiant CCS University
. CCS Developer Enablement Training $500 Per Day, Per
. CCS User Training Student
$325 Per Day, Per
Student
-----------------------------------------------------------------------------------------------------------------------------------
Chordiant CCS Documentation
. Additional Documentation Sets $1,000 Each
EXHIBIT C
THIRD PARTY SYSTEM ACCESS AGREEMENT
-----------------------------------
AMONG
{CUSTOMER},
CHORDIANT SOFTWARE, INC.
AND
ELECTRONIC DATA SYSTEMS CORPORATION
THIS Third Party System Access Agreement (the "Access Agreement") effective
as of {Effective Date}, is by and among {CUSTOMER LEGAL NAME} ("Customer"),
CHORDIANT SOFTWARE, INC. ("Chordiant") and ELECTRONIC DATA SYSTEMS CORPORATION
("EDS").
W I T N E S S E T H:
WHEREAS, Chordiant owns certain software products (hereinafter referred to
as "Software") more specifically described in the {Chordiant/Customer Agreement
Name}, dated {Chordiant/Customer Agreement Date}, between Customer and Chordiant
(the "License Agreement"); and
WHEREAS, Chordiant and EDS have entered into a {EDS/Chordiant Agreement
Name}, dated {EDS/Chordiant Agreement Date}, pursuant to which EDS may obtain
certain software products and services from Chordiant (the "Master Agreement");
WHEREAS, Customer and EDS have entered into an information technology
services agreement (the "ITS Agreement") pursuant to which EDS will provide data
processing and other services ("Services") requiring that EDS have access to the
Software; and
WHEREAS, the parties desire that EDS undertake appropriate contractual
commitments to assure that the Software will be used only in accordance with and
subject to the terms and conditions of the Master Agreement and this Access
Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Customer, Chordiant and EDS hereby
agree as follows:
1. Chordiant hereby grants EDS the right to use, execute, store and display
(collectively "Access") the Software set forth in Attachment 1 to this
Access Agreement for the purpose of performing its obligations pursuant to
the ITS Agreement. The parties agree that EDS' Access of such Software,
and Chordiant's support and maintenance obligations with respect to the
Software, shall be governed by the terms and conditions of the Master
Agreement; provided, however, EDS may Access the Software for the sole and
exclusive purpose of providing Services on behalf of Customer.
C-1
2. Customer shall be entitled to all protections under the Master Agreement,
including, but not limited to, proprietary rights indemnification as
defined in the Master Agreement.
3. The parties agree that EDS shall be Customer's agent for payment of any
fees due to Chordiant under the Master Agreement from the date of this
Access Agreement until Chordiant is notified otherwise. In the event of a
conflict between this Access Agreement and the License Agreement, this
Access Agreement will prevail.
4. This Access Agreement shall commence as of the date first set forth above
and shall continue in effect until the earlier of (i) the termination of
the ITS Agreement, (ii) Chordiant's receipt of written notice from EDS that
EDS' need to Access the Software has ceased, or (iii) the termination of
the License Agreement. Upon termination of this Access Agreement, EDS
shall discontinue all use of the Software and; provided that the License
Agreement has not terminated, Customer's continued use of and Chordiant's
support and maintenance obligations with respect to the Software shall be
governed by the terms and conditions of the License Agreement. At such
time, EDS shall have no further liability or responsibility with respect to
such Software.
IN WITNESS WHEREOF, the parties have caused this Access Agreement to be
executed as of the dates indicated.
CHORDIANT SOFTWARE, INC. {CUSTOMER}
By:____________________________ By:_________________________________
Printed Name:________________ Printed Name:________________________
Title:_______________________ Title:_______________________________
Date:__________________________ Date:_______________________________
ELECTRONIC DATA SYSTEMS CORPORATION
By:____________________________
Printed Name:________________
Title:_______________________
Date:__________________________
C-2
Exhibit D
Education Services
------------------
ATTACHMENT 1
SOFTWARE
This Attachment 1 shall automatically be deemed to include any and all
software products obtained by Customer from Chordiant after the effective date
of the ITS Agreement.
C-3
EXHIBIT D
EDUCATION SERVICES
------------------
1. Certain Definitions. The following definitions apply to this Exhibit:
-------------------
(a) "EDS Students" means employees of EDS and employees of EDS' customers
or suppliers who receive Education Services and participate as
students.
(b) "Education Services" includes, but is not limited to, student and
instructor training, and time and material services provided or to be
provided by Chordiant pursuant to the Agreement and this Exhibit.
(c) "Location" means the place where Education Services are performed or
are to be performed and/or where Documentation for Education Services
is to be delivered.
2. Supplemental Chordiant Obligations. Chordiant will provide to EDS the
----------------------------------
Education Services specified in each Purchase Order in accordance with the
terms and conditions set forth in this Agreement and this Exhibit and will:
(a) Designate an individual who will be EDS' contact person at Chordiant
during the term of this Agreement and who shall have the authority and
power to make management decisions relating to Education Services on
behalf of Chordiant. Such individual shall provide, at the request of
EDS and within a reasonable period of time, any requested management
decisions. Chordiant may change the contact person upon notice to
EDS.
(b) Provide sufficient class documentation for each EDS Student at no
charge to EDS. EDS Students may retain all such class documentation
after completion of the Educational Services to which such
Documentation applies.
(c) Provide necessary education aids, such as references, films,
overheads, or other similar instructional aids for use with Education
Services.
(d) If Education Services are to occur at an EDS Location, request in
writing in advance, any education or audiovisual materials or
equipment which should be present at the EDS Location for use in
teaching. Such materials or equipment may include, but shall not be
limited to, overhead projectors, film projectors, flip charts, boards
and markers, personal computers for EDS Students' use, etc. ("Training
Aids").
(e) For Education Services which occur at an EDS Location, allow for the
substitution or cancellation of EDS Students at no additional charge.
(f) Provide to EDS, within thirty (30) days of the end of each calendar
quarter, a written report for the previous quarter indicating the
Location, the dates, the aggregated Charges paid by EDS, and the
number of EDS Students in attendance for all Education Services
provided by Chordiant during the previous quarter.
(g) Provide sufficient Employees for each Education Service offering to
maintain a maximum student-to-instructor ratio of twelve (12)
students to one (1) instructor, unless otherwise agreed. In the
provision of "train-the-trainer" Services, Chordiant will
D-1
provide sufficient Employees to maintain a maximum
student-to-instructor ratio of six (6) students to one (1) instructor.
3. Supplemental EDS Obligations. EDS will, at its own cost and expense,
----------------------------
provide classroom facilities and reasonable and necessary Training Aids,
based on availability and discretion, for classes at an EDS Location.
4. Open and Closed Education Services. A Purchase Order shall indicate if a
----------------------------------
course is "open," which means that EDS Students and other commercial
students may attend the course, or "closed," which means the course is only
available to EDS Students. Public classes at Chordiant's Location shall
always be considered open.
5. Charges. Where EDS is paying for Education Services on a flat fee per
-------
class basis, EDS shall not be required to pay any additional sums in the
event of student substitution or the student fails to attend the class
without notice. Where EDS is paying for the Education Services on a flat
fee per student basis, EDS may cancel a Student at no charge to EDS by
providing Chordiant more than seven (7) days advance notice of such
cancellation. EDS shall pay fifty percent (50%) of the student's class fees
if cancellation occurs within seven (7) days of the class date.
D-2
EXHIBIT E
DEVELOPMENT SERVICES
--------------------
1. Developed Software. "Developed Software" means computer software programs,
------------------
including Development Documents (as later defined in this Agreement),
developed or to be developed by Chordiant and/or Employees pursuant to this
Agreement. The parties agree that the definition of Work Product(s) shall
be modified to include Developed Software.
2. Provision of Development Services. Chordiant shall perform development
---------------------------------
Services to the extent agreed upon by the parties for a particular EDS
project (the "Project"). With respect to each Project, the parties shall
agree in writing upon supplemental terms and conditions applicable to the
performance of the Project including, for example and without limitation,
(i) a price and milestone payment schedule, (ii) a Project performance
schedule, including the appropriate work steps and phases, (iii) Applicable
Specifications, (iv) functional and detailed design specifications, and (v)
a schedule of those items or tasks to be performed by Chordiant which must
be approved by EDS or performed to the satisfaction of EDS
("Deliverables"). The terms and conditions established for a Project shall
be incorporated in this Agreement, and may be amended upon the mutual
written agreement of the Project Managers (as later defined in this
Agreement). The Section of this Agreement titled "Time and Materials
Services" shall also apply to the Project if the development Services are
performed on a time and materials basis.
3. Project Management. For each Project, Chordiant and EDS shall each
------------------
designate a project manager (the "Project Managers") who shall have the
responsibilities set forth in this Exhibit and as otherwise agreed upon by
the parties. Each Project Manager shall be responsible for providing
timely management decisions as required or requested relating to the
Project. From time to time at the request of the EDS Project Manager, the
Chordiant Project Manager shall provide to the EDS Project Manager a
written report of the status of the Project.
4. Approval of Deliverables. The supplemental Project terms and conditions
------------------------
shall establish time frames for the acceptance process of Deliverables; any
reference to dates or time periods in this Section shall mean the dates
mutually agreed upon by the parties in, or determined in accordance with,
such terms and conditions. The Chordiant Project Manager shall submit each
Deliverable to the EDS Project Manager on or before the specified delivery
date. Within the established time frame, EDS shall approve or disapprove
the Deliverable by providing written notice to Chordiant. EDS shall
describe in any disapproval the ways in which the Deliverable fails to
conform to the established requirements and/or the Applicable
Specifications for the Project or portion thereof; EDS may also suggest
corrections or improvements which may cause the Deliverable to meet such
standard. Chordiant shall resubmit the Deliverable to EDS for approval as
provided in this Section, within the established cure period. EDS may
extend the period of time for resubmission of the Deliverable if Chordiant
submits a written request outlining the specific reasons why Chordiant
cannot comply with the requirements together with
Chordiant's proposed alternative schedule for resubmission of the
Deliverable. Chordiant may submit draft versions of a Deliverable prior to
the required date for the informal comment of the EDS Project Manager. EDS'
approval of a Deliverable only indicates that EDS has reviewed the
Deliverable and detected no errors or omissions sufficient enough to
warrant the withholding or denial of payment, if any, for such Deliverable.
EDS' approval of a Deliverable does not discharge Chordiant's obligation to
provide a completed Developed Software that as a whole conforms to the
Applicable Specifications.
5. Acceptance Testing Procedures. In connection with each Project, the
-----------------------------
parties shall mutually agree upon appropriate acceptance testing criteria
and procedures for the Developed Software. The applicable acceptance
testing criteria and procedures must be successfully satisfied and
performed prior to EDS' acceptance of the Developed Software. If any
defects or deficiencies are discovered during acceptance testing, EDS shall
so notify Chordiant, and Chordiant shall have thirty (30) days from receipt
of such notice to correct the deficiencies. If necessary, Chordiant and
EDS may mutually agree upon an additional time period in order to continue
acceptance testing of the corrected Developed Software. For purposes of an
item of Developed Software, the term "Acceptance Date" shall mean the date
when the Developed Software successfully satisfies the applicable
acceptance testing criteria. Acceptance of an item of Developed Software
does not waive any warranty rights provided in this Agreement for Developed
Software.
6. Change Orders. By providing written notice to the Chordiant Project
-------------
Manager, EDS may request Chordiant to perform additional work or changes
within the general scope of the Project and Chordiant agrees to perform
such work or changes. If a change causes an increase or decrease in the
price or time required for performance as mutually determined by the
Project Managers, a negotiated adjustment shall be made in the Project
price and/or performance schedule. Changes outside the general scope of
the Project shall be governed by the following Section.
7. Additional Work. By providing written notice to the Chordiant Project
---------------
Manager, EDS may request Chordiant to perform additional Services outside
the general scope of a Project. At its option, Chordiant may submit, at no
charge to EDS, a written proposal for such Services including a price/cost
proposal, expenses related to travel, lodging and meals, a delivery
schedule, and any other information reasonably related to such request.
Within a reasonable time period requested by Chordiant, EDS shall accept or
reject such proposal. If Chordiant chooses not to provide a proposal in
response to EDS' request, Chordiant shall promptly notify EDS.
8. Ownership of Developed Software. EDS shall have Ownership Rights in and to
-------------------------------
all Developed Software, whether completed or partially completed, and all
documents developed or exchanged during or in support of a Project, whether
completed or partially completed (the "Development Documents") as set forth
in the Section titled "Ownership of Intellectual Property Rights" elsewhere
in this Agreement. To the extent that Existing Materials are required in
order to use the Developed Software as contemplated in this
Agreement, Chordiant shall grant to EDS, its subsidiaries and affiliates
rights as set forth in the Section titled "Use of Existing Materials"
elsewhere in this Agreement.
9. Remedies for Failure to Perform. If Chordiant defaults in the performance
-------------------------------
of a Project EDS may, in its sole discretion, elect to (i) terminate the
Project, return to Chordiant all Development Documents and receive a refund
from Chordiant of all amounts paid to Chordiant with respect to the
Project, (ii) enter into a joint development effort with Chordiant to
complete the Project at no additional charge to EDS, (iii) extend the time
for Chordiant performance at no additional charge to EDS, (iv) continue
development itself or in connection with a third party, and/or (v)
terminate the Project. The foregoing remedies do not constitute exclusive
remedies. In the event EDS elects to continue development efforts itself,
or to continue development efforts with the involvement of a third party,
Chordiant shall provide to EDS all Chordiant proprietary or other
information reasonably required to complete such development. EDS agrees
that any third parties pursuing such development with EDS shall agree to
comply with non-disclosure and confidentiality provisions to protect
Chordiant's information. EDS may use the information as necessary in order
to complete the Project.
10. Rights Upon Project Completion. Upon completion or termination of a
------------------------------
Project for any reason, Chordiant shall provide to EDS all copies of all
Developed Software and Development Documents, whether completed or
partially completed, (except if EDS elects (i) in the previous Section) and
shall return to EDS any and all copies of all information provided by EDS
to Chordiant in connection with the Project. EDS shall be entitled to
obtain maintenance and support Services for Developed Software under the
Sections governing support of Licensed Software.
EXHIBIT F
RESELLER ACCESS AUTHORIZATION
-----------------------------
1. Chordiant hereby grants EDS the right to use, execute, store and display
(collectively "Access") the Licensed Software purchased for resale under
Section 3.6 of this Agreement, for the purpose of performing its service
obligations to the ITS Customer.
2. The ITS Customer shall be entitled to all protections under this Agreement,
including, but not limited to, proprietary rights indemnification.
3. EDS shall Access the Licensed Software in accordance with the terms and
restrictions of this Agreement.
4. Chordiant agrees that EDS shall be the ITS Customer's agent for payment of
any fees due to Chordiant for the Licensed Software from the date the ITS
Customer signs Chordiant End User License Agreement ("Resale Date"), until
Chordiant is notified otherwise.
5. This Reseller Access Authorization shall commence as of the Resale Date and
shall continue in effect until the earlier of (i) Chordiant's receipt of
written notice from EDS that EDS' need to Access the Licensed Software has
ceased, or (ii) the termination of the Chordiant End User License
Agreement. Upon termination of Access, EDS shall discontinue all use of
the Licensed Software. Provided that the End User License Agreement has
not terminated, the ITS Customer's continued use of and Chordiant's support
and maintenance obligations with respect to the Licensed Software shall be
governed by the terms and conditions of the Chordiant End User License
Agreement. At such time, EDS shall have no further liability or
responsibility with respect to such Licensed Software.
6. During the period of EDS' Access, in the event of any conflict between this
Agreement and the Chordiant End User License Agreement with the ITS
Customer, this Agreement will prevail.
EXHIBIT G
THIRD PARTY LETTER AGREEMENT
----------------------------
This letter agreement (the "Agreement") dated ____ is by and between
______("Third Party Provider"), Electronic Data Systems Corporation and its
Affiliates ("EDS"), and Chordiant Software, Inc. and its Affiliates
("Chordiant").
For purposes of this Agreement, "Affiliates" of a party shall mean any
corporation or other legal entity owning, directly or indirectly, ten percent
(10%) or more of the voting capital shares of such party; any corporation or
other legal entity ten percent (10%) or more of the voting capital shares (or
equivalent control) of which is owned, directly or indirectly, by such party, as
applicable; or any corporation or other legal entity ten percent (10%) or more
of the voting capital shares (or equivalent control) of which is owned, directly
or indirectly, by a corporation or other legal entity owning, directly or
indirectly, ten percent (10%) or more of the voting capital shares (or
equivalent control) of such party.
Chordiant and Third Party Provider have entered into an agreement dated ___
("Chordiant Agreement") pursuant to which Chordiant has obtained the right to
use and distribute (description or name of software to be provided) ("Third
Party Software") to licensees of Chordiant's products, provided that Chordiant
includes in all license agreements with such licensees certain terms and
conditions regarding the use of such Third Party Software ("Pass Thru Terms").
EDS and Third Party Provider have entered into an agreement dated ____ (the
"EDS Agreement"), pursuant to which EDS has obtained the rights to use the Third
Party Software.
Third Party Provider hereby authorizes Chordiant to distribute to EDS the Third
Party Software for use with Chordiant's products without a license agreement
containing the Pass Thru Terms, and agrees that Chordiant shall remain obligated
to pay to Third Party Provider any amounts that may be due to Third Party
Provider as a result of such distribution pursuant to the Chordiant Agreement.
EDS and Third Party Provider agree that EDS' use of the Third Party Software
shall be pursuant to the EDS Agreement.
Third Party Provider hereby forever generally and completely releases and
discharges Chordiant, its servants, agents, directors, officers and employees,
and all others, of and from any and all claims and demands of every kind and
nature, in law, equity or otherwise, known and unknown, suspected and
unsuspected, disclosed and undisclosed, and in particular of and from all claims
and demands of every kind and nature, known and unknown, suspected and
unsuspected, disclosed and undisclosed, for damages actual and consequential,
past, present and future, arising out of or in any way related to the
Chordiant's distribution of the Third Party Software to EDS. This release,
notwithstanding Section 1542 of the California Civil Code which provides that "a
general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release which if
known by him must have materially affected his settlement with the debtor,"
shall be a full and final release.
The parties by their duly authorized representatives have executed this
Agreement as of the date above.
Chordiant Software, Inc. Electronic Data Systems Corporation
By: _____________________________ By:_____________________________
Name:____________________________ Name: __________________________
Title: __________________________ Title:____________________________
[Third Party Provider]
By: _____________________________
Name:____________________________
Title: __________________________
EXHIBIT H
END USER SOFTWARE LICENSE AGREEMENT
-----------------------------------
Chordiant will provide EDS with a copy of the End User Software License
Agreement whenever it is revised by Chordiant. EDS will have thirty (30) days to
begin using such revised new End User Software License Agreement from receipt.
Chordiant CCS - Release 1.3
Price List
--------------------------------------------------------------------------------
End-User License License Fees
Product Description Required Optional
--------------------------------------------------------------------------------
Chordiant CCS Foundation (Note 1) $750,000
. Chordiant CCS ChorServices (System Services)
. Chordiant CCS ChorObjects (Business Services)
Distributed Service Centers Deployment Option
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(Note 2)
. First Additional Center $375,000
. Second & Subsequent Additional Centers $187,500
Additional Components
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. Client Platform $ 25,000
. Server Platform $ 25,000
. Telephony Platform $ 50,000
. Database Platform $ 25,000
. Electronic Gateways $ 50,000
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Chordiant CCS ChorApps (Applications) $600,000
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Chordiant CCS Runtime Client Licenses
1 - 50 $950
51 - 100 $850
101 - 200 $750
201 - 500 $650
501 + Negotiate
d
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B-3
