EXHIBIT 10.26
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
ENGINEERING CONSULTANT SERVICES AGREEMENT
between
STRATUS COMPUTER, INC.
and
PERITUS SOFTWARE SERVICES, INC.
This Agreement is made this 30 day of November, 1993, between Stratus Computer,
Inc., 00 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000 ("Stratus") and
Peritus Software Services, Inc., 000 Xxxxxxxxx Xxxxxxxx, Xxxxxxxxxx, XX 00000
("Peritus").
1. Stratus hereby engages Peritus and Peritus hereby agrees to perform the
software engineering services for Stratus as set forth in Appendix A
hereto (the "Work") for the price set forth in Appendix A. The dates
and/or events causing payments to become due and payable and the
conditions which define the starting date of Peritus' performance are
also set forth in Appendix A.
2. TERM OF AGREEMENT
This Agreement shall continue in force for a three (3) year period from
the date set forth above unless earlier terminated in accordance with
Section 8.
3. TRADE SECRETS
A. During the term of this Agreement, Stratus may disclose to Peritus,
or Peritus may obtain access to, develop or create proprietary and
confidential information or material concerning or related to
Stratus' manufacturing processes, services, products or general
business operations. Such Information or material may include, but
is not limited to, computer programs, design documentation,
development, test and maintenance tools, programs and procedures,
test data, or Stratus' sales, costs, profits, pricing methods,
organization, employee lists, service, software diagnostic
techniques, customer lists, processes, user access passwords, etc.
Peritus acknowledges the confidential and secret character of the
Information, and agrees that the Information is the sole, exclusive
and extremely valuable property of Stratus. Accordingly, without
Stratus' prior written consent, Peritus agrees not to use the
Information for any purpose except in the performance of this
1
Agreement as expressly permitted herein, and not to divulge all or
any part of the Information to any third party, either during or
after the term of this Agreement without Stratus' prior written
consent in each instance.
B. Except as expressly provided in this Agreement or authorized by
Stratus in writing, all Information shall remain in the possession
and control of Peritus at its offices as first noted above.
4. INVENTIONS, DISCOVERIES AND DEVELOPMENTS
A. Rights in the Work: Stratus shall have all right, title and
interest, including all copyright, trade secret and patent rights
in the Work and in all inventions, discoveries, developments and
improvements, made or conceived by Peritus under or arising out of
this Agreement, including all physical copies and all ideas,
techniques, concepts and expressions thereof contained in the Work.
Notwithstanding the foregoing, nothing in this Agreement shall
preclude Peritus from using its general knowledge, experience and
skill in connection with any other work, products or services for
itself or for any other person or entity.
B. Assignment and Assistance: Peritus hereby transfers and assigns all
of his/her rights in and to the Work to Stratus. During and after
the term of this Agreement Peritus shall, at Stratus' request and
expense, make application of letters Patent in the United States
and/or other countries, will assign such applications to Stratus
and will assist and cooperate with Stratus in the prosecution of
such applications. Peritus hereby assigns to Stratus all copyrights
in and to the Work.
5. RETURN OF PROPERTY
Upon expiration or earlier termination of this Agreement, Peritus
agrees to stop using and to immediately return to Stratus all
Information, material, documents, equipment, tools or facilities
furnished by Stratus pursuant to the provisions or requirements of this
Agreement. Peritus shall be fully responsible for the care and
protection of the same until such delivery.
6. WARRANTY
Peritus warrants that it has or will have good and marketable title to
all of the Work provided herewith. Peritus shall indemnify, defend and
hold harmless Stratus and its customers from any liability, damage or
expense (including
2
reasonable attorney's fee) resulting from or arising in any way out of
any claims by any third parties, which are based upon or are the result
of any breach of the warrants contained in this Section. Peritus has
the right to be notified promptly of any claim, demand or suit brought
against Stratus and Peritus has the right to defend such suit with
counsel of its choice.
7. HARMLESS/WAIVER
Peritus and Stratus shall indemnify and hold harmless the other party
("Indemnified Party") against all claims, losses and expenses
(including reasonable attorney's fees) and injuries to person or
property (including the Indemnified Party's property) resulting from
any act on the part of (indemnifying party), its agents, employees or
subcontractors pursuant to (indemnifying party's) performance under
this Agreement, except to the extent any such loss is due directly to
the negligence of the Indemnified Party.
8. TERMINATION:
A. For Cause: Stratus may terminate this Agreement without further
payment to Peritus if:
1. Peritus fails to perform any material provisions of this
Agreement, and fails to cure within thirty (30) days after
receipt of notice.
2. Peritus declares bankruptcy or makes an assignment for the
benefit of creditors, or a receiver of similar officer is
appointed to take charge of all or part Peritus' assets.
3. Peritus assigns this Agreement, or any obligation or right
under it (the word "assign" to include without limitation, a
transfer of major interest in Peritus), or merges with a third
party, not a parent or subsidiary company, without Stratus'
prior written consent which Stratus shall not unreasonably
withhold.
B. For Convenience: Stratus may terminate this Agreement for
convenience at any time after the first year upon giving Peritus
not less than one hundred eighty (180) days' prior written notice.
Upon the effective date of termination Peritus will:
1. Immediately stop work unless otherwise directed by Stratus in
writing.
2. Notify Stratus of costs incurred up to the date of termination.
3
Stratus shall pay those costs within thirty (30) days of
receipt of a proper invoice. Such costs shall not exceed, and
Stratus will not be obligated to pay more than the unpaid
balance due for Work performed prior to the termination date
based upon the fees and payments described in Appendix A.
Payment upon termination will be accepted by Peritus in full
satisfaction of all claims and demands against Stratus based
upon or arising out of or in connection with the Agreement.
3. Notwithstanding any termination, the obligations of Peritus
under paragraphs 3, 4 and 5 above shall survive expiration.
9. NOTICE
Any notice given under this Agreement shall be written or telegraphic.
Written notice shall be sent by registered or certified mail, postage
prepaid, return receipt requested. Any telegraphic notice must be
followed within three (3) days by written notice. All notices shall be
effective when first received at the following addresses:
STRATUS COMPUTER, INC.
00 Xxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
PERITUS SOFTWARE SERVICES INC.
000 Xxxxxxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx XxXxxxx
10. COMPLIANCE WITH APPLICABLE LAWS
Peritus warrants that the Work performed under this Agreement complies
with or will comply with all applicable United States laws and
regulation Peritus' failure to comply with the above may result in a
material breach of this Agreement.
11. INDEPENDENT CONTRACTOR
In furnishing services pursuant to the Agreement, Peritus will be acting
as an Independent Contractor. Peritus is not an agent or employee of
Stratus and is not authorized to act on behalf of Stratus. As such,
neither Peritus nor his/her employees, agents or contractors will be an
employee of Stratus and will not by reason of the Agreement or his/her
services hereunder be entitled to
4
participate in, or to receive any benefit or right under, any of
Stratus' employee benefit or welfare plans.
12. GENERAL
A. This Agreement constitutes and fully expresses the entire and only
Agreement between the parties with respect to the subject matter
hereof. This Agreement supersedes all prior agreements and
understandings between the parties and may not be modified, waived
or extended unless mutually agreed upon in writing by both
parties.
B. In the event any provision of this Agreement is found to be
legally unenforceable, such unenforceability shall not prevent
enforcement of any other provision of the Agreement.
C. This Agreement shall be construed, interpreted and applied in
accordance with the Laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 30th
day of November, 1993.
STRATUS COMPUTER, INC. PERITUS SOFTWARE SERVICES, INC.
BY: /s/Xxxxx Filres BY: /s/Xxxxx XxXxxxx
------------------------------ ------------------------------------
NAME: Xxxxx Filres NAME: Xxxxx XxXxxxx
---------------------------- ----------------------------------
TITLE: TITLE:
--------------------------- ---------------------------------
5
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
APPENDIX A
to
ENGINEERING CONSULTANT SERVICES AGREEMENT
1. STATEMENT OF WORK
1.1 Out Source Products
A. Peritus will use all technically feasible means to
diagnose and repair or resolve software defects which
occur in the following Stratus VOS-based software
programs ("Out Sourced Products") and which are
reported to Peritus during the term of the Agreement
. *****************************
. *****************************
. *****************************
. *****************************
. *****************************
. *****************************
**************************************
*****
*****
*****
**********
**********
***************
*****
*****
*****
Stratus shall have the right to add or delete
products from the above list subject to **********
days' advance written notice. The parties shall
adjust (increase or decrease) the annual fee, on a
pro rata basis, to reflect the change in the list of
Out Source Products, based on the product's defect
history and using the rate of
*********************************************.
6
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
B. For each ********************************************
***************************************************
***************************************************
***************************************************
***************************************************
***************************************************
***************************************************
***************************************************
***************************
C. For each *****************************************
***************************************************
***************************************************
***************************
D. Peritus will ***************************************
***************************************************
***************************************************
***************************************************
***************************
E. Peritus will ***************************************
***************************************************
***************************************************
***************************
F. Peritus will ***************************************
***************************
Priority Definition Response Time
-------- ---------- -------------
******** ********** ***************
******** ********** ***************
******** ********** ***************
******** ********** ***************
******** ********** ***************
******** ********** ***************
******** ********** ***************
******** ********** ***************
******** ********** ***************
7
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
1.2 Unresolved Defects List:
Peritus will ************************************************
************************** currently included in the Stratus
UNR (Unresolved Defect) list or which are added to the UNR
list during the term of this agreement or other difficult
software defects which Stratus assigns to Peritus. Such
maintenance shall be for the affected Stratus releases of each
applicable Software program. Assignment of UNR defects to
Peritus shall be through mutual agreement.
1.3 Field Support/Enhancements
A. If requested and approved by an authorized
representative of Stratus, Peritus will dispatch
software engineers to a customer location for
diagnosis and/or resolution of a defect or to provide
specialized software support. For such support,
Peritus will charge Stratus a consulting fee (as set
forth in Appendix B hereof) as well as usual and
customary administrative, communication, travel, and
living expenses.
B. At the request of Stratus, Peritus will be available
to make enhancements to the Out Sourced Products.
Peritus will respond to such requests with a proposal
which will provide a description of the enhancement,
schedules, costs, additional expenses (if
applicable), and other requirements. Peritus will
perform the work after written approval has been
received from an authorized representative of
Stratus.
2. STRATUS REQUIREMENTS
2.1 Stratus will make available, at no cost to Peritus, (1) one
complete library of current source code, requirements and
design documentation, user documentation, operations
documentation, and all other relevant documentation and
material which is required for the performance of this
agreement. The source code for the Out Sourced Products must
be consistent with the versions of the Stratus software which
are installed on the Stratus system located at Peritus.
8
2.2 Stratus will make available, at no cost to Peritus, all test
software, test suites, test tools and test data which are
required to ensure the proper testing and functioning of the
software products maintained as part of this agreement.
2.3 Stratus will provide, at no cost to Peritus, copies of or
access to all required development software systems and tools.
2.4 Stratus will loan, at no cost to Peritus, a minimum VOS-based
computer system which shall allow Peritus to analyze,
assemble, compile, and test most of the resolutions or
corrections being developed by Peritus. This system shall be
installed and maintained by Stratus, at no cost to Peritus, at
Peritus' principal office which currently is located at 000
Xxxxxxxxx Xxxxxxxx, Xxxxxxxxxx, XX 00000. The use of the
system shall be subject to the terms and conditions of
Appendix C.
2.5 Stratus will provide, at no cost to Peritus and at Stratus'
facilities, a minimum of (1) one month of training for the
engineering team assigned to this project by Peritus. The
training shall include the Outsourced Products listed in
Section 2.2, VOS, and other system software as necessary. Such
training shall also include Stratus policies, processes and
procedures; the use of CALL and QTS; and use of the
development, maintenance, and test tools used by Stratus. The
training may include formal classroom training, tutorials,
system exposure, hands-on experience, and individual
presentations.
2.6 Stratus will provide to Peritus (l) one copy of all relevant
internal policy, process, and procedure manuals which Peritus
must follow.
2.7 Stratus will provide Peritus with access (read and write) to
the existing problem reporting system, QTS (Quality Tracking
System), and access (read only) to the CALL system.
2.8 From time to time throughout the performance of this
agreement, Stratus will make personnel available to Peritus
for the purpose of consulting with Peritus as required for the
performance of this Agreement. Such consultation shall
include, but not be limited to, topics such as system and
software architecture, software functions and features, and
use of Stratus supplied software and systems.
2.9 Stratus will be responsible for all system and integration
testing, quality assurance, engineering acceptance, and
manufacturing, deployment, and distribution of all software
repaired or developed under this Agreement.
9
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
2.10 When requested by Peritus, Stratus will make available, at no
cost to Peritus, appropriate systems and facilities within the
Stratus test facility. Such use by Peritus of these facilities
will be scheduled in advance and will be at the convenience of
Stratus.
2.11 Stratus will continue to provide Xxxxx 0 support for all Out
Sourced Products which Peritus may maintain under this
agreement. Peritus' shall be limited to Level 3 support and
occasional Xxxxx 0 support specifically when requested by
Stratus. In particular, the Stratus CAC will be responsible
for all customer interface tasks.
2.12 Peritus shall provide a communications facility to the Stratus
CALL and QTS systems and to the development and test systems
which are located in Marlborough, MA.
3. FEES:
3.1 The fee for the Work described in Section 1.1 Out Sourced
Products is ********* per year for the first three (3) years
of this Agreement and ********* for each extension year.
The above annual fees are based on the repair or resolution of
up to the following number of defects in each annual period
based on the initial list of Outsourced Products ("Base Level
Defects"). These annual fees and the Base Level Defects per
annual period shall be adjusted upward or downward to reflect
the addition or deletion of software programs to or from the
Out Sourced Products list. If Peritus repairs or resolves more
than the Base Level Defects in an annual period, Stratus shall
pay to Peritus the amount of
*********************************** per each such additional
resolved defect. Peritus shall submit quarterly invoices in
advance for ***** of the annual fee. The first invoice shall
be submitted (30) thirty days after execution of this
agreement by the parties. The Base Level Defects for the
initial list of Out Sourced Products is ***** per year for
1994, 1995 and 1996.
3.2 The fee for Work performed according to Section 1.3 shall be
according to the rates shown in Appendix B plus any additional
expenses. Peritus will submit invoices upon completion of the
Work. Included with such invoices will be any documentation
which supports and verifies any additional expenses.
10
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
3.3 The fee for the work described in Section 1.2 is *****for each
of the ***** ***** defects which are resolved by Peritus. The
parties will agree on a per defect fee for the ****** and each
subsequent defect resolved by Peritus based on the parties'
experiences in resolving the ********** defects.
3.4 Provided Peritus has increased its fees generally, Peritus
shall have the right to increase the fees charged Stratus
hereunder upon giving Stratus not less than ninety (90) days'
prior written notice and provided further that any such
increase for a particular fee does not exceed ************* in
any calendar year.
4. MISCELLANEOUS
4.1 Peritus will assign a project manager who will be directly
responsible for the performance of this agreement. At its
option, Peritus may assign a second project manager who shall
be responsible for the work performed in Section 1.2.
4.2 Stratus shall assign a liaison manager to be the principal
contact for Peritus.
4.3 Peritus shall meet with the Stratus liaison manager weekly
during the transition phase, monthly thereafter, and at the
request of either party. The purpose of these meetings is to
report progress, identify issues and problems, develop
solutions to issues and problems, conduct other such business
as is necessary for proper performance, and to ensure Stratus'
satisfaction.
4.4 Peritus will conduct a **********team training session for the
Stratus and Peritus personnel who will work together in the
performance of this agreement. The objective of this session
is to insure that all personnel understand their respective
responsibilities, know the provisions of the agreement, and
that they will work together cooperatively.
5. DEFINITIONS
Defect resolutions as used in this agreement are defined as follows:
a) *********************************************************
11
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
b) *********************************************************
*********************************************************
************************
c) *********************************************************
*********************************************************
*********************************************************
*********************************************************
************************
d) *********************************************************
**********
e) *********************************************************
*********************************************************
************************
f) *********************************************************
************************
g) *********************************************************
h) *********************************************************
************************
g) *********************************************************
6. COMMENCEMENT OF WORK
Peritus will begin performance of the Work required under this
Agreement for the Out Sourced Products and any subsequent product
additions when the items in Section 2.0 of this Appendix are complete.
12
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
APPENDIX B
to
PERITUS ENGINEERING CONSULTANT AGREEMENT
Software Engineering Rates
--------------------------
Systems Senior Software
Consultant Engineer Software Engineer
--------------------------------------------------------------------------------------------
Year ***** ***** *****
Month ***** ***** *****
Week ***** ***** *****
Day ***** ***** *****
Other Terms and Conditions:
. Full day minimums apply
. Reasonable and usual expenses are in addition to the above rates. These
expenses include travel, meals, lodging, and administration.
. Required travel is billed ******
. Rates are subject to change with ninety (90) days' prior written
notice. Peritus shall
****************************************************
*********************************************** and (b) increase these
rates by more than ************************ in any calendar year.
13
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
APPENDIX C
to
PERITUS SOFTWARE CONSULTANT AGREEMENT
Installation: Peritus Software Services, Inc.
000 Xxxxxxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
1. System: The System being loaned to Peritus consists of the following
hardware and/or software products:
SYSTEM CONFIGURATION
***** *****
***** *****
***** *****
***** *****
***** *****
***** *****
***** *****
***** *****
***** *****
List Price Value **********
==========
2. LICENSE
X. Xxxxxxx hereby grants to Peritus a temporary, nontransferable,
nonexclusive license to use the Software Products and related
materials listed in the Product Schedule during the term of
the Agreement and only for the express purposes of providing
engineering service to Stratus as provided in this Agreement.
14
The Software Products may be used only with the Processing
Module listed or identified in the System Configuration
Schedule ("Licensed Processor"). The Software Product may only
be copied, in whole or in part (with the proper inclusion of
existing copyright notices), and any other proprietary
notice(s) on such Software Products as may be necessary and
incidental to use on such Licensed Processor, for archival and
back-up purposes or to replace a worn or defective copy.
Except as set forth herein, or as may be permitted in writing
by Stratus, Peritus shall not (i) provide, transmit or
otherwise make available, the Software Product or any part or
copies thereof to any third party, or (ii) reverse engineer,
reverse compile or reverse assemble the Software Product.
3. TITLE
Peritus acknowledges that Stratus shall have sole and
exclusive title to, and ownership of, the Computer System.
Peritus agrees, if reasonably necessary to protect Stratus'
interest, to keep the Computer System labeled so as to
indicate Stratus' ownership thereof and to execute such
further documentation as Stratus may request (including UCC
Financing Statements) to evidence Stratus' title.
4. SHIPPING COSTS AND INSURANCE
X. Xxxxxxx agrees to pay all shipping costs for the Computer
System to Peritus' site and from Peritus' site when returned
at the end of the Agreement Term. Stratus shall bear the risk
of loss on the Computer System while in transit and Peritus
shall bear the risk of loss on or damage to the Computer
System during the Agreement Term.
B. Peritus agrees, at its own expense, to obtain and maintain at
all times, with insurers of recognized responsibility,
liability insurance in amounts sufficient to insure against
all risk of loss or damage to the Computer System, said amount
not to be less than the total list price value of the Computer
System. If so requested by Stratus, (a) Peritus shall furnish
valid certificates of insurance evidencing the coverages
detailed above, and (b) Peritus shall negotiate any insurance
claim.
5. INDEMNITY
Peritus agrees to indemnify and hold Stratus harmless from any loss,
claim or damage to persons or property, arising out of Peritus' use or
possession of the Products.
15
6. ALTERATIONS, MODIFICATIONS, ATTACHMENTS, LOCATION OF USE
Peritus agrees to make no alterations, modifications or attachments to
the Computer System nor move or otherwise relocate the Computer System
without Stratus' written permission.
7. MAINTENANCE
Stratus agrees to maintain the Computer System in good operating
condition during the Term of this Agreement. There shall be no charge
to Peritus for this service, unless any repair or other service is
required as a result of misuse, neglect or abuse of the Computer
System.
16
AMENDMENT
to
ENGINEERING CONSULTANT SERVICES AGREEMENT
between
STRATUS COMPUTER, INC. and PERITUS SOFTWARE SERVICES, INC.
The Engineering Consultant Services Agreement ("Agreement"), dated November 30,
1993, between Stratus Computer, Inc. and Peritus Software Services, Inc. is
hereby amended as follows:
1. Section 3, A of the Agreement is deleted and replaced with the
following:
3. TRADE SECRETS
A. During the term of this Agreement, Stratus may disclose to
Peritus, or Peritus may obtain access to, develop or create 1)
proprietary and confidential information or material
concerning or related to Stratus' manufacturing processes,
services, products or general business operations or 2)
proprietary and confidential information or material of third
parties which has been entrusted to Stratus. Such Information
or material may include, but is not limited to, computer
programs, design documentation, development, test and
maintenance tools, programs and procedures, test data, or
Stratus' sales, costs, profits, pricing methods, organization,
employee lists, service, software diagnostic techniques,
customer lists, processes, user access passwords, etc. Peritus
acknowledges the confidential and secret character of the
Information, and agrees that the Information is the sole,
exclusive and extremely valuable property of Stratus or of
such third parties. Accordingly, without Stratus' prior
written consent, Peritus agrees not to use the Information for
any purpose except in the performance of this Agreement as
expressly permitted herein, and not to divulge all or any part
of the Information to any third party, either during or after
the term of this Agreement without Stratus' prior written
consent in each instance. Information will not be subject to
this provision if it (i) is or becomes a matter of public
knowledge without the fault of Peritus, (ii) was known to
Peritus prior to the disclosure to it by Stratus, or (iii) is
received by Peritus from a third party under circumstances
permitting it unrestricted disclosure.
2. The last sentence of Section 4A. is replaced by the following:
Stratus agrees and acknowledges that in the performance of the Work by
Peritus hereunder, Peritus shall utilize proprietary methodologies,
systems, processes, inventions, algorithms, procedures, techniques,
work approaches
17
and general knowledge, skill and experience of Peritus, now or
hereafter acquired or developed. Nothing in this Agreement shall impair
the right of Peritus to utilize any of the foregoing or to make,
prepare, create, procure and/or market products containing or embodying
the foregoing, now or in the future.
3. The following Section 12 D. is added to the Agreement:
Stratus shall have the right, upon reasonable notice to Peritus, to
conduct audits of Peritus' facilities to ascertain that Peritus is
abiding by the provisions of this Agreement (in particular, but without
limitation, Section 3, Trade Secrets). All persons involved in such
audits shall (i) while at the facilities of Peritus, comply with all
reasonable rules and regulations established by Peritus, and (ii)
maintain in confidence and not use (except for the purposes
contemplated by this Agreement) or disclose to any third parties any
proprietary or confidential information of Peritus or its customers
disclosed to them or of which they become aware as a result of any such
audits.
4. The following Section 12 E. is added to the Agreement:
Peritus shall defend and indemnify Stratus against any and all claims,
damages, costs or liability to third parties, howsoever arising, based
on any action or inaction of Peritus, in violation of any of Peritus'
obligations under Section 3 of this Agreement; provided that, with
respect to third party claims, (i) Stratus shall have promptly provided
Peritus written notice thereof and reasonable cooperation, information
and assistance in connection therewith, and (ii) Peritus shall have
sole control and authority with respect to the defense, settlement or
compromise thereof.
5. The following Section 12F. is added to the Agreement:
Peritus shall promptly notify Stratus of any changes in personnel, to
enable Stratus to administer computer access accounts, issue security
badges and otherwise control access to Stratus facilities and computer
systems by current or former Peritus personnel.
In all other respects, the Agreement shall remain in effect, unaltered.
STRATUS COMPUTER INC. PERITUS SOFTWARE SERVICES INC.
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxx X. Xxxxx
---------------------------------- ------------------------------------
VP Engineering VP Finance
---------------------------------- ------------------------------------
---------------------------------- ------------------------------------
18
PERITUS
Software Services, Inc.
STRATUS COMPUTER, INC.
February 1, 1996
000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Phone: 000-000-0000
Fax: 000-000-0000
... e x p e r t s i n s o f t w a r e m a i n t e n a n c e
STATUS COMPUTER, INC.
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Section Title Page
------- ----- ----
1.0 Statement of Work 3
2.0 Requirements and Responsibilities 10
3.0 Term 13
4.0 Fees 14
5.0 Payment Schedule 15
6.0 Miscellaneous 15
7.0 Definitions 16
8.9 Acceptance 18
--------------------------------------------------------------------------------
Peritus Software Services, Inc. February 1, 1996 Page 2 of 18
STATUS COMPUTER, INC.
--------------------------------------------------------------------------------
1.0 Statement of Work
Pages 3 through 12
contain confidential materials which have
been omitted and filed separately with the
Securities and Exchange Commission
--------------------------------------------------------------------------------
Peritus Software Services, Inc. February 1, 1996 Page 3 of 18
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
STATUS COMPUTER, INC.
--------------------------------------------------------------------------------
*********************************************************************
*********************************************************************
************************************
*********************************
***********************
3.0 Term
3.1 The term of this agreement shall be three (3) years.
3.2 The agreement may be renewed for one (1) year terms unless either party
notifies the other in writing of an intent not to renew one hundred
twenty (120) days prior to the expiration of the agreement or
extension, whichever is applicable.
--------------------------------------------------------------------------------
Peritus Software Services, Inc. February 1, 1996 Page 13 of 18
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
STATUS COMPUTER, INC.
--------------------------------------------------------------------------------
4.0 Fees
4.1 The Peritus fees will be per the following table:
***** ***** ***** *****
***************************
****** ***** ***** *****
************************ ***** ***** *****
************************ ***** ***** *****
**********************************************************
**********************************************************
***************************
***************************
**************************
*************** ***** ***** *****
*************** ***** ***** *****
*************** ***** ***** *****
*************** ***** ***** *****
************************ ***** ***** *****
*************************
************************ ***** ***** *****
*************************
************************ ***** ***** *****
************************ ***** ***** *****
************************ ***** ***** *****
************************ ************
************
************************ ************
************
--------------------------------------------------------------------------------
Peritus Software Services, Inc. February 1, 1996 Page 14 of 18
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
STATUS COMPUTER, INC.
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Note 2: After a combined total of ************************** of Problem Analysis
Support and Miscellaneous Software Maintenance Support in one (1) contract year,
the fee will increase to ***********************.
Note 3: This fee is subject to change after one (1) year with ninety (90) day
written notice by Peritus.
4.2 Expenses will be charged for work performed under Section 1.14 and 2.18.
4.3 The Peritus fees for work performed under Section 1.17 will be a per the
proposal submitted by Peritus.
5.0 Payment Schedule and Terms
5.1 Peritus will submit an invoice quarterly in advance for *****. This fee
may be adjusted (increased or decreased) at the start of each contract
year by mutual agreement between Stratus and Peritus.
5.2 At the end of each quarter, Peritus will submit an invoice for the work
actually performed based on the fee schedule shown in Section 4.1 less
the advance payment previously invoiced and specified in Section 5.1.
5.3 For expenses identified in Section 4.2, Peritus will submit invoices
upon completion of the work. Included with the invoices will be
documentation which supports and verifies the expenses.
5.4 For fees identified in Section 4.3, Peritus will submit invoices
monthly as the work is performed or based upon a mutually agreed to
schedule.
5.5 Peritus' payment terms are net 30 days.
6.0 Miscellaneous
6.1 Peritus will assign project manager who will be directly responsible
for the performance of this agreement. Peritus will also assign an
account manager who shall be responsible for the overall relationship
between Stratus and Peritus.
6.2 Stratus shall assign a liaison manager (or program manager) to be the
principle contact for Peritus. The liaison manager shall be responsible
for the daily interaction between Peritus and Stratus, shall assist
Peritus with all communications within Stratus, and will insure that all
Stratus responsibilities are fulfilled.
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6.3 Peritus shall meet formally with the Stratus liaison manager (and
others as required) biweekly or at the request of either party. The
purpose of these meetings is to report progress, identify issues and
problems, develop solutions to issues and problems, conduct other such
business as is necessary for proper performance, and to ensure Stratus'
satisfaction.
6.4 Peritus recommends a monthly meeting with Stratus senior management.
The purpose of the meeting is to present significant issues which
require resolution.
6.5 Peritus shall continue to provide Stratus a monthly performance report.
The contents of this report will be mutually agreed to by Stratus and
Peritus.
6.6 All material, documentation, data, software systems, hardware systems,
and test equipment which are provided to Peritus by Stratus during the
term of the agreement shall be returned by Peritus to Stratus upon the
expiration or termination of the agreement or when no longer required
for the performance of the agreement.
7.0 Definitions
7.1 Defect resolutions as used in this agreement are defined as follows:
a) A valid defect was reported and a correction has been generated
and submitted to an appropriate source tree.
b) A valid defect was reported and a correction has no been
generated because a correction is not feasible within the
constraints of the design and/or implementation.
c) A valid defect was reported and a course has been determined. A
correction will not be generated because a preliminary analysis
of the correction indicates that it may cause unknown and
serious regressions due to constraints in the design and/or
implementation of the affected software component.
d) The software component conforms to the appropriate specification
and need not be changed.
e) The software component conforms to the appropriate specification
and the defect report will be treated as an enhancement request
and considered for future implementation.
f) The software component conforms to the appropriate specification
and will not be changed but the appropriate documentation will
be clarified.
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g) The reported defect is caused by a hardware malfunction.
h) The reported defect has only occurred once and could not be
reproduced or isolated.
i) The reported defect is found to be a duplicate of a previously
reported defect which had been resolved.
j) Stratus and Peritus mutually determine for any or no reasons
that no further effort is required.
7.2 The Stratus defect priorities (critical, serious, normal, and minor and
those categories used for Enhanced Services are a defined in SED 122 or
subsequent specification.
7.3 The Stratus Problem resolution phases are defined as follows:
T1 - The period from receipt of the original report of a problem to
the date the failure analysis is complete and a defect can be
described, either through a reproducible test case or the
isolation of the defect within the code. At this point, the
problem is entered into QTS as a defect.
T2 - The period form entry of the defect into QTS until a resolution
has been submitted and all audits, unit, and system tests are
complete. Traditionally referred to as "find and fix."
T3 - The period during which the appropriate release or patch tape is
built, validated, and made ready for manufacturing and
distribution.
T4 - The period during which the media is reproduced, distributed,
and made available to the customer.
T5 - The period of time from distribution of the media to a customer
through installation by the customer.
7.4 A backlog defect is one which has been entered into QTS and not yet
escalated or one which is found by Peritus (and subsequently entered
into QTS) in the course of performing other work.
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8.0 Acceptance
8.1 This Statement of Work is issued and signed pursuant to the Engineering
and Consultant Services Agreement, between the parties, dated November
30, 1993, as amended May 30, 1995.
8.2 This agreement has been accepted by Stratus Computer, Inc. and Peritus
Software Services, Inc. as Appendix A1 to the Engineering Consultant
Services Agreement which exists between the two companies. This
agreement replaces the previous version of Appendix A1 which was
identified as "revision 1.4, April 14, 1995."
for Stratus Computer, Inc. for Peritus Software Services, Inc.
/s/ J. Standfird /s/ Xxxxx X. XxXxxxx
------------------------------ -----------------------------------
Name Name
------------------------------ -----------------------------------
Title Title
------------------------------ -----------------------------------
Date Date
Please sign both copies of this agreement and return one copy to
Peritus Software Services, Inc. 000 Xxxxxxx Xxxx, Xxxxxxxxx, XX
00000-0000
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