CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.
[LOGO OF XXXXXXX.XXX]
Agreement Number: GEN012900
EXHIBIT 10.17
Licensee Information
Licensee: General Electric Company Contact: Xxxxx Xxxxxxx
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Address: 0000 Xxxxxx Xxxxxxxx, Xxxxxxxxx, XX 00000 Phone: (000) 000-0000
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Email: xxxxx.xxxxxxx@xxxxxxxxx.xx.xxx Fax: (000) 000-0000
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ENTERPRISE LICENSE AGREEMENT
This License Agreement ("Agreement") is entered into as of February 17, 2000
(the "Effective Date") by and between Xxxxxxx.xxx, Inc., with offices at 000
Xxxxxxxx, Xxxxxxx Xxxx, XX 00000 ("Xxxxxxx.xxx") and General Electric Company,
with offices at 0000 Xxxxxx Xxxxxxxx, Xxxxxxxxx, XX 00000 ("GE"), and sets forth
the terms and conditions under which Xxxxxxx.xxx agrees to license software to
GE.
1. DEFINITIONS
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1.1 "Computer(s)" shall mean all computing devices owned, leased, rented or
controlled by GE.
1.2 "Confidential Information" shall mean the GE Confidential Information or
the Xxxxxxx.xxx Confidential Information, as the case may be, as used in Section
4. hereof.
1.3 "Documentation" shall mean the instructions and/or end-user manuals that
describe installation, use, and/or operation of the Software which is provided
to GE along with the Software.
1.4 "Employee" shall mean any employee of GE or an individual independent
contractor using the Software in the course of performing services on behalf of
GE and for whom GE remains responsible.
1.5 "Enterprise License" shall mean the license grant which, subject to the
terms and conditions herein, allows any Employee to access and use the Software,
without limitation as to the number of Employees who may concurrently access and
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use the Software. As such, subject to the terms of the Agreement, the
Enterprise License shall grant access and use to an unlimited number of
simultaneous Employee-users, with no limitation on the number of copies which
may be made by GE of the Software.
1.6 "GE" shall mean General Electric Company and any subsidiary, affiliate, or
other worldwide entity (i) which General Electric Company consolidates into its
audited financial statements and, (ii) upon consent from Xxxxxxx.xxx (which
consent shall not be unreasonably withheld), in which General Electric has at
least [***] percent ([***]%) ownership; provided that (A) each such subsidiary,
affiliate, or entity is not a competitor of Xxxxxxx.xxx and (B) General Electric
Company shall remain responsible for compliance with this Agreement by each such
subsidiary, entity, and affiliate.
1.7 "GE Business" shall mean an individual operating business or division of
GE, which operating divisions at the time of this Agreement include: GE Aircraft
Engines, GE Appliances, GE Capital Services, GE Industrial Systems, GE
Information Services, GE Lighting, GE Medical Systems, GE Motors, GE Plastics,
GE Supply, GE Transportation Systems, NBC and GE Corporate (which includes GE
Corporate Research & Development, and all other Corporate and support components
which components provide, among other things, international trade support,
market development, licensing and investments for various GE businesses).
1.8 "GE Confidential Information" shall mean all information identified by GE
as confidential or proprietary and disclosed by GE to Xxxxxxx.xxx which relates
to GE's past, present or future research, development, business activities and
Help Desk and e-Commerce programs including, but not limited to GE's Help Desk
and e-Commerce training programs and collateral materials, and GE's Help Desk
and e-Commerce project cases, compilations thereof, and associated knowledge
bases. GE Confidential Information shall include (1) any unannounced product(s)
or service(s) of GE; (2) the terms, conditions and subject matter of this
Agreement and any related contract documents; and (3) any other GE information
or materials provided to Xxxxxxx.xxx and designated by GE as confidential. GE
Confidential Information will not be deemed to include information that is (i)
publicly available or becomes so in the future without restriction, other than
as a breach of this Agreement by Xxxxxxx.xxx, (ii) rightfully received by
Xxxxxxx.xxx from third parties and not accompanied by confidentiality
[***] CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
obligations, (iii) already in Xxxxxxx.xxx's possession and lawfully received
from sources other than GE, (iv) approved for release or disclosure without
restriction by GE in writing or (v) independently developed by Xxxxxxx.xxx
without the use of any GE Confidential Information.
1.9 "Network" shall mean an aggregation of devices, any of which may perform
the functions of computation, data storage, and/or data communications, and
which are interconnected by cable or wireless communications means so as to
permit the passage of machine-readable information among two or more such
devices; Network shall include without limitation any publicly accessible
communications systems capable of data and/or voice communications, which
systems may be generally known as the Internet, the World Wide Web, or other
designation.
1.10 "Non-Production Use" shall mean any use or installation of the Software for
failover, disaster recovery, development, staging, technology integration,
testing, and/or other such purposes, by GE Employees. GE shall not be subject
to any requirement by Xxxxxxx.xxx to pay fees for Support Services on a per use
or installation basis, provided that there shall be a requirement that such fees
shall be applicable to at least one instance of an Operational deployment in
cases where a GE Business is undertaking any such Non-Production Use or
installation of the Software and does not yet otherwise have an Operational
deployment in place and GE seeks the benefit of Support Services.
1.11 "Operational" shall mean, under the Enterprise License, for the Software
installations, only those installations of Software which are deployed for
operational ("production") use in support of GE and only such Operational
Software shall be subject to optional, annual fees for Support Services under
the Agreement.
1.12 "Product Upgrade" shall mean a successor version of the Software that is
an eSupport solution made generally available to GE in accordance with Exhibit A
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hereof. Subject to the terms and conditions hereof, Product Upgrades shall
include, for example, the following:
(a) changes in the one's, tenth's, hundredth's, or after hundredth's digit of
the Software version number;
(b) successor version(s) of the Software that incorporates corrections,
upgrades and/or enhancements to the Software, whether or not such
corrections, upgrades and/or enhancements are marketed separately by
Xxxxxxx.xxx;
(c) migration from one operating system to another prescribed by Xxxxxxx.xxx;
(d) migration from 32-bit Software to 64-bit Software;
(e) migration from one platform generation to the next platform generation of
Software;
(f) migration by Xxxxxxx.xxx of Software from one localized language (e.g.:
U.S. English) to any other localized language (e.g.: German) to the extent
that Xxxxxxx.xxx has made such migration available to other licensed users
of the Software; and
(g) new releases containing increased Software functionality derived from the
Software (whether marketed separately or as part of a more comprehensive
release).
If Xxxxxxx.xxx removes a feature or function from the Software that existed as
of the Effective Date of this Agreement, or which resulted from a Product
Upgrade during the term of this Agreement, and Xxxxxxx.xxx then distributes the
removed feature or function as a stand-alone or other product, then such new
stand alone product shall be deemed to be a Product Upgrade for purposes of this
Agreement. If Xxxxxxx.xxx develops a successor product with incremental
improvements to the Software with similar functionality and Xxxxxxx.xxx then
distributes the successor product, then such successor product will be
considered a Product Upgrade. However, if Xxxxxxx.xxx develops other Software
products outside the eSupport solutions, it shall be at Xxxxxxx.xxx's discretion
as to whether or not the other software products are distributed as a Product
Upgrade.
Xxxxxxx.xxx expressly acknowledges and agrees that it is GE's intent, by virtue
of this Agreement, to license all current Xxxxxxx.xxx eSupport solutions
identified in Exhibit A for GE Businesses globally, and the parties acknowledge
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that any future derivatives of current Software and technologies will be
provided to GE as outlined above. Notwithstanding Xxxxxxx.xxx's obligation to
provide Product Upgrades, both parties acknowledge eSupport solutions are still
evolving, therefore for a period of [***] months from the Effective Date
("Technology Subscription Period"), Xxxxxxx.xxx will provide all of its non-
third party internally developed eSupport solutions (as listed on a certain
document dated February 15, 2000, entitled "Product Enhancements" and signed by
Radha Basu which is hereby incorporated by reference and made an integral part
of this Agreement) that are made generally available and [***] the [***] of
Product Upgrades to GE if and when Xxxxxxx.xxx develops such product.
1.13 "Site" shall mean one or more buildings or
[***] CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
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portion(s) thereof that are located within an area defined by a ten mile radius,
and are i) used in the conduct of GE business, and ii) are under control within
GE's organizational structure.
1.14 "Software" shall mean as of the Effective Date of this Agreement the
products designated on Exhibit A, including all related Documentation, and
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modifications thereof, and received by GE from Xxxxxxx.xxx pursuant to this
Agreement. In the event GE is current under Support Services, "Software" shall
also include Product Updates within eSupport solutions that were provided to GE
during the Technology Subscription Period. Software also includes all Product
Upgrades in accordance with Exhibit C.
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1.15 "Xxxxxxx.xxx Confidential Information" shall mean Xxxxxxx.xxx's Software,
Documentation, discoveries, ideas, concepts, know-how, techniques, designs,
specifications, drawings, blueprints, tradings, diagrams, models, samples, flow
charts, data, computer programs, disks, diskettes, tapes, marketing plans,
prospect names, customer names, and other technical, financial or business
information, whether regarding the past, present, or future. Xxxxxxx.xxx
Confidential Information shall include (1) any unannounced product(s) or
service(s) of Xxxxxxx.xxx; (2) the terms, conditions and subject matter of this
Agreement and any related contract documents; and (3) any other Xxxxxxx.xxx
information or materials provided to GE and designated by Xxxxxxx.xxx as
confidential. Xxxxxxx.xxx Confidential Information will not be deemed to
include information that is (i) publicly available or becomes so in the future
without restriction, other than as a breach of this Agreement by GE, (ii)
rightfully received by GE from third parties and not accompanied by
confidentiality obligations, (iii) already in GE's possession and lawfully
received from sources other than Xxxxxxx.xxx, (iv) approved for release or
disclosure without restriction by Xxxxxxx.xxx in writing or (v) independently
developed by GE without the use of any Xxxxxxx.xxx Confidential Information.
1.16 "Support Services" shall mean the software maintenance and technical
support services performed by Xxxxxxx.xxx for GE hereunder, as described in
Exhibit C attached hereto.
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1.17 "Third Parties" shall mean customers and suppliers of GE.
2. SCOPE OF THIS AGREEMENT
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This Agreement shall apply to GE wherever situated (subject to Section 17), and
Software may be used by GE and its officers and Employees engaged in work on
behalf of GE, whether on or off premises, worldwide (subject to Section 17).
This Agreement shall also allow GE to install the Healing Agent component of the
Software on GE Computers which may be located at Third Parties' premises
provided that (i) GE restricts usage of the Software to activities related to
business between GE and such Third Party and/or in conjunction with services
being provided to GE by such Third Party for GE's benefit, and (ii) the Software
is used in accordance with the terms of this Agreement and GE remains
responsible for compliance with this Agreement by such Third Parties as long as
such Third Parties use is as contemplated by the Parties and within the scope of
control of GE as reasonably contemplated by this Agreement. Notwithstanding,
Xxxxxxx.xxx acknowledges that the Software may also be accessed incidentally by
any end user in the world while obtaining application services from GE provided
that such end user does not install or download any component of the Software.
3. LICENSE
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3.1 License Grants.
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(a) In consideration of payment made by GE to Xxxxxxx.xxx pursuant to Exhibit A
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of this Agreement, Xxxxxxx.xxx grants and agrees to xxxxx XX, subject to the
terms and conditions contained herein, a non-exclusive, perpetual, limited, non-
transferable (except as set forth herein), worldwide Enterprise License to use
and/or reproduce the Software on GE Computers and GE Networks under the terms of
this Agreement.
(b) Xxxxxxx.xxx hereby grants and agrees to grant to GE a non-exclusive license
to reproduce (completely and accurately) and install, subject the terms of this
Agreement, the Software specified in Exhibit A. GE shall have the right subject
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to Section 17, to reproduce and install such Software on Computers and Networks
in GE's United States and worldwide sites.
(c) Xxxxxxx.xxx additionally grants to GE a non-exclusive right to reproduce
and install copies of the appropriate Software on GE Computer(s) located in the
home(s) of, and/or carried and used on a portable basis by, Employees of GE,
provided that any such Employee uses such Software on such home or portable
Computer substantially in fulfillment of GE employment duties.
(d) GE may make reasonable copies of the Software and Documentation for back-up
and archival purposes in accordance with applicable law. GE shall reproduce the
Software and Documentation accurately and include all original copyright and
trademark notices, claims of confidentiality, or trade secrets, and other
proprietary rights notices on all back-up or archival copies. Any copies that GE
makes of the Software or Documentation, in whole or
3
in part, are Xxxxxxx.xxx's sole property.
3.2 Restrictions
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(a) GE agrees not to reverse engineer, decompile, disassemble, extract or
otherwise derive, the source code and any other ideas, algorithms or procedures
from the Software or Documentation for any reason, except to the extent that
Xxxxxxx.xxx is not permitted by such applicable law to exclude or limit such
rights. Information relating to the Software which is necessary to enable the
production of software which is interoperable or compatible with the Software or
other software may be available from Xxxxxxx.xxx upon written request.
(b) GE agrees to reproduce the Software and Documentation accurately and
include Xxxxxxx.xxx's original copyright and trademark notices, claims of
confidentiality or trade secrets, and other proprietary rights notices on any
copies of the Software and Documentation, including partial copies.
(c) Except to the extent expressly authorized herein or in the Documentation,
GE agrees not to modify or create a derivative work of any part of the Software.
3.3 Intentionally omitted.
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3.4 Intentionally omitted.
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3.5 Acquisitions by GE. If GE acquires another entity or part of another
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entity (either, an "Acquired Entity"), such Acquired Entity shall be considered
GE hereunder and bound by the terms hereof and the Software license fee paid by
GE hereunder shall not be adjusted in light of such acquisition during the term
of this Agreement, provided that the Acquired Entity meets the definition of
"GE" as set forth in Section 1.
3.6 Title. Subject only to the license granted pursuant to this Agreement,
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Xxxxxxx.xxx shall retain all right, title and interest, including all copyrights
and trademarks, in and to the Software.
3.7 Extension of License Rights. At the sole option and discretion of GE, upon
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written notice thereof to Xxxxxxx.xxx, the provisions of this Agreement shall
supersede the provisions of any other agreement in effect as of the Effective
Date of this Agreement between GE and Xxxxxxx.xxx.
4. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
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All Confidential Information furnished under this Agreement by the party
disclosing such Confidential Information (the "Disclosing Party") to the party
receiving the Confidential Information (the "Receiving Party") shall remain the
property of the Disclosing Party and/or its licensors. The Disclosing Party's
Confidential Information may be disclosed to Receiving Party visually, orally,
in machine-readable form, or in writing (including graphic material). When
disclosed in machine-readable form or writing, the Confidential Information
shall be labeled "Confidential" or otherwise appropriately as to indicate its
confidential nature. When disclosed visually or orally, the Confidential
Information shall be identified as Confidential Information at the time of
initial disclosure. The Receiving Party shall label clearly as "[Disclosing
Party's Name] Confidential" all Confidential Information reduced by Receiving
Party to machine readable form or writing as a result of such disclosures by
Disclosing Party.
Xxxxxxx.xxx and GE agree that each party shall receive the Confidential
Information of the other party subject to the following conditions:
(a) Confidential Information shall be held and protected by Receiving Party in
strict confidence and used by Receiving Party and its personnel and affiliates
only in conjunction with the performance of this Agreement. The Receiving Party
shall not disclose the Confidential Information of the Disclosing Party to
anyone except its own officers, Employees, who have a need to know such
information for purposes of exercising the Receiving Party's rights or
performing its obligations hereunder, and such officers and Employees shall make
no further disclosure of Confidential information to any other officers,
employees, third parties or GE Contractors of the Receiving Party nor to any
other party without the express written authorization of the Disclosing Party.
(b) GE and Xxxxxxx.xxx warrant and represent on their own behalf that all of
their own officers, and Employees working on XX-Xxxxxxx.xxx projects are aware
of (or will, within 10 days of the Effective Date of this Agreement be made
aware of) the terms of this non-disclosure agreement so that they may
sufficiently protect the considerable interests of the Disclosing Party's
Confidential Information.
(c) The Receiving Party shall not copy the Disclosing Party's Confidential
Information (except for the limited purpose of making secondary copies for
officers and employees on a need-to-know basis) and shall return to Disclosing
Party any or all portions of the Disclosing Party's Confidential Information at
any time upon request by the Disclosing Party including, but not limited to all
documents or other media containing the Disclosing Party's Confidential
Information. If any intermediate work products or working papers containing the
Disclosing Party's Confidential Information shall have been generated, they
shall be delivered to the Disclosing Party's Contract Administrator or Technical
Coordinator or, when appropriate, disposed of as they so direct.
(d) GE's and Xxxxxxx.xxx obligations herein with respect to any item of
Confidential Information
4
shall be binding upon each party during the term of this Agreement and for five
(5) years after the expiration or termination of this Agreement. Protection to
trade secrets shall extend to such time as the relevant information qualifies as
a trade secret under the applicable law.
(e) Neither GE nor Xxxxxxx.xxx nor any third party shall have obligations to
the other regarding the accuracy or future utilization by the Receiving Party of
the Disclosing Party's Confidential Information.
(f) The Receiving Party shall not export or re-export any of the Disclosing
Party's Confidential Information, technical data or products received from the
Disclosing Party or the direct products of such Confidential Information's
technical data to any proscribed country, unless authorized by the Disclosing
Party in writing, and as properly authorized by any applicable regulation of the
U.S. Government.
(g) THE RECEIVING PARTY ACQUIRES NO INTELLECTUAL PROPERTY RIGHTS FROM THE
DISCLOSING PARTY UNDER THIS AGREEMENT, except for the restricted right to use
Disclosing Party's Confidential Information for the express, limited purposes
described above.
(h) The Receiving Party shall be responsible in all cases for the enforcement
of all confidentiality and non-disclosure provisions contained herein as they
pertain to the Disclosing Party's Confidential Information, and shall bear all
liability for any violations of these provisions by its subsidiaries,
affiliates, joint ventures, consultants, agents, third party contractors and
related persons or entities that are controlled by or under common ownership and
control of the Receiving Party.
(i) Xxxxxxx.xxx acknowledges that GE does not desire to receive any
Xxxxxxx.xxx Confidential Information that is not related or appropriate to the
performance of this Agreement or that is not otherwise requested by GE
(collectively, "Disclosure Objectives"). Xxxxxxx.xxx agrees to use reasonable
efforts to avoid disclosures of Xxxxxxx.xxx Confidential Information to GE that
are not Disclosure Objectives.
(j) Either party may disclose the Disclosing Party's Confidential Information
to a governmental entity in the event such disclosure is required to be
disclosed pursuant to a regulation, law or court order provided such party has
given prior notice to the Disclosing Party and provides only the minimum amount
of information required to comply with such regulation or order.
5. PROPRIETARY RIGHTS INDEMNIFICATION
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(a) Xxxxxxx.xxx represents and warrants that it is the sole owner of the
Software, or has procured the Software under valid licenses from the owners
thereof, and Xxxxxxx.xxx further represents and warrants that it has full power
and authority to grant the rights herein granted without the consent of any
other person. Xxxxxxx.xxx shall defend and indemnify and hold GE harmless
against any amounts awarded in a settlement or final court decision arising from
any claim, suit, or other proceeding brought against GE based on an allegation
that the Software or any elements thereof, or the use of any Software furnished
by Xxxxxxx.xxx pursuant to this Agreement constitutes a violation or
infringement of any worldwide copyright, trade secret, or other proprietary
information right, or U.S. patent provided that Xxxxxxx.xxx is notified promptly
in writing of such allegation, suit, or proceeding and given full, complete, and
exclusive authority, and complete information and assistance (at Xxxxxxx.xxx's
expense) for the defense of same. Xxxxxxx.xxx shall pay without limitation all
damages and costs incurred by GE with respect to such suits or proceedings, but
Xxxxxxx.xxx shall not be responsible for any compromise made by GE or its agents
without Xxxxxxx.xxx's consent. If such Software is held by a court of competent
jurisdiction to constitute infringement, and its use is enjoined, Xxxxxxx.xxx
shall, at its own expense without limitation, either promptly procure the right
for continued use of such Software by GE, or, if the performance thereof will
not thereby be materially adversely affected promptly replace or modify such
product(s) so that it becomes non-infringing. If neither of the actions
specified for Xxxxxxx.xxx in the preceding sentence is commercially feasible,
then as a last resort, Xxxxxxx.xxx shall accept return of such Software and
refund to GE all fees paid by GE for such Software if such return of Software
occurs within the five (5) year period beginning on the Effective Date, plus any
unused maintenance fees paid for the Software and any costs incurred by GE in
the removal of such Software and installation of alternative products. After
such five (5) year period beginning with the sixth (6th) year, GE shall be
entitled to a pro-rata refund based upon a five (5) year depreciation schedule.
During the pendency of any claim against GE with respect to Xxxxxxx.xxx's
ownership or authority, GE may withhold payment of any sum otherwise required to
be paid hereunder.
(b) Xxxxxxx.xxx has no liability for any claim arising out of or related to
(i) a modification of the Software by anyone other than Xxxxxxx.xxx without
Xxxxxxx.xxx's prior written consent where such modification was outside of the
scope of use of the Software as reasonably contemplated by the Documentation
and, but for such modification there would be no infringement; (ii) a
combination of the
5
Software with any third party software or hardware not specifically recommended
by Xxxxxxx.xxx in its Documentation where such combination is the cause of such
infringement; or (iii) the use of a version of Software other than the then-
current version if infringement would have been avoided with the use of the
then-current version, provided that Xxxxxxx.xxx notified GE that a current
version was available to correct known infringing functionality; and
i) GE shall have had the option to receive such release at no charge, on
an immediate basis, and
ii) Xxxxxxx.xxx has promptly notified GE in writing of recommendations to
implement such release so as to minimize any disruption and costs to
GE for ongoing Operational use of the Software; and
iii) GE has applied commercially reasonable judgment to endeavor to accept
Xxxxxxx.xxx's proposed recommendations. However, if after applying
reasonable judgment, GE concludes that the implementation of such
release by GE would have involved significant disruption or cost to
GE, then Xxxxxxx.xxx shall remain liable under this Section 5.0 absent
a mutually agreeable resolution.
(c) The rights granted to GE under this Section 5.0 shall be GE's sole and
exclusive remedy for any alleged infringement of any patent, copyright, trade
secret or other proprietary rights except where the alleged infringement of any
such right is asserted by GE to be an infringement of a GE right, then the
parties agree that no such limitation as to remedy set forth above shall apply.
6 PAYMENT
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GE agrees to pay Xxxxxxx.xxx the fees set forth in Exhibit B. All fees are
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payable [***] ([***]) days from receipt of a correct invoice. All prices are
exclusive of taxes, and GE shall be solely responsible for any sales, value-
added or similar tax, other than taxes imposed on Xxxxxxx.xxx's income.
7 WARRANTY
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7.1 Media Warranty
Xxxxxxx.xxx warrants that for a period of ninety (90) days from the Effective
Date the media used to store and deliver Software to GE shall be free from
defects in manufacture and material. Should the media fail to be free of
defects in manufacture or material during the ninety (90) day warranty period,
Xxxxxxx.xxx shall replace the defective media. Defective media shipped to the
Xxxxxxx.xxx with a shipping date within the 90 day warranty period will be
replaced at no charge including shipping.
7.2 Limited Warranty
Xxxxxxx.xxx warrants that for a period of [***] ([***]) months from the
Effective Date, the Software will perform substantially as described in their
Documentation. If GE should determine during the warranty period of [***]
([***]) months from the Effective Date the Software fails to perform
substantially in such a manner, GE's sole and exclusive remedy shall be either
replacement of the Software at no charge or a full refund of all license fees
paid by GE for the right to use the program. GE will deliver all copies of
defective Software with associated Documentation to Xxxxxxx.xxx to receive
replacements or a refund of fees.
7.3 Code Integrity Warranty
Xxxxxxx.xxx warrants that it has used reasonable efforts to ensure that, upon
delivery of the Software, the Software contains no "computer viruses" or "time
bombs" as those terms are commonly understood in the information processing
industry. Specifically, Xxxxxxx.xxx warrants that the Software contains no code
or instructions (including any code or instructions provided by third parties)
that is intended to access, modify, delete, damage, or disable any computer,
associated equipment, computer programs, data files or other electronically
stored information operated or maintained by GE. Xxxxxxx.xxx hereby expressly
waives and disclaims any right or remedy it may have at law or in equity to de-
install, disable or repossess (except as may otherwise be expressly provided in
this Agreement) any Software, in the event GE fails to perform any of its
obligations under this Agreement, except in the event such right or remedy is
finally determined by a tribunal of competent jurisdiction.
7.4 Documentation Warranty
Any Documentation furnished as part of Software(s) hereunder will be in form and
substance at least equal to comparable materials generally in use in the
industry. If at any time such original Documentation is revised or supplemented
by additional Documentation, thereupon GE shall be entitled to such revised or
additional Documentation at no charge. GE shall have the right to reproduce all
Documentation supplied hereunder provided such reproduction shall be solely for
the use by GE.
7.5 Year 2000 Compliance Warranty
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[***] CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
In addition to any other warranties and representations provided by Xxxxxxx.xxx
to GE, whether pursuant to this Agreement, by law, equity, or otherwise,
Xxxxxxx.xxx represents and warrants that (a) all Software and Support Services
without limitation, provided by Xxxxxxx.xxx or their agents or assignees
hereunder, shall be Year 2000 Compliant at the time of delivery and at all times
thereafter and in all subsequent updates or revisions of any kind, and (b)
Xxxxxxx.xxx's supply of the Software and Support Services to GE shall not be
interrupted, delayed, decreased, or otherwise affected by dates prior to, on,
after or spanning January 1, 2000.
For purposes of this Agreement, Year 2000 Compliant means that (1) the Software
and Support Services accurately process, calculate, provide and/or receive date
data (including without limitation calculating, comparing, and sequencing),
within, from, into, and between centuries (including without limitation the
twentieth and twenty-first centuries), including leap year calculations, (2)
neither the performance, functionality nor the supply to GE of the Software and
Support Services will be affected by dates prior to, on, after, or spanning
January 1, 2000, (3) date data of any kind will not cause any error,
interruption, or decreased performance in the operation of such Software and
Support Services, and (4) where any date element is represented without a
century, the correct century will be unambiguous for all manipulations involving
that element.
If at any time the Software and Support Services are found, by GE or any other
of Xxxxxxx.xxx's customers, not to be Year 2000 Compliant, then, in addition to
any other obligation of Xxxxxxx.xxx under the law, pursuant to this Agreement,
at equity, or otherwise, at no additional charge to GE, Xxxxxxx.xxx shall, by no
later than thirty (30) days after receipt of a report of noncompliance repair
or replace the non-conforming Software or Support Service.
Any statute of limitations that might be applicable to Xxxxxxx.xxx's Year 2000
Compliant warranty and representation shall not accrue or begin to run until the
later of January 1, 2000 or the time when such statute of limitations would
otherwise accrue or begin to run, and, with respect to any claim based on any
failure of the Software and/or Support Services to be Year 2000 Compliant,
Xxxxxxx.xxx shall not assert any defense based on or alleging the passage of
time from the Effective Date of this Agreement to January 1, 2000.
7.6 General Representations and Warranties
Xxxxxxx.xxx represents and warrants that:
(a) it has taken commercially reasonable efforts to ensure it has not
intentionally submitted material information heretofore and
contemporaneously that has been untrue and inaccurate in any material
respect;
(b) it has the authority, license or permission from any third party owner or
security interest holder, to use intellectual property in conjunction with
the provision of the Software and Support Services under this Agreement;
(c) it will obtain the requisite personnel, competence, alliances, skill and
physical resources necessary to provide the Software and Support Services
on a global basis as set forth under this Agreement and that it is
authorized to act on behalf of and engage various service providers and
resellers on its behalf; and
(d) Services delivered or performed shall be in accordance with the highest
generally accepted standards of the profession existent at the time the
Services are delivered or performed (for the same type of Services and at
the same rates).
7.7 This warranty and the other warranties contained in this entire Section 7
herein shall not apply if: (i) Software was not used in accordance with the
Documentation, however, if the Software specifications contained in the
Documentation are re-published by Xxxxxxx.xxx during the Warranty Period and the
re-published specifications described functional capabilities that are
diminished from what the capabilities described in the original specifications,
the warranty shall still apply unless Xxxxxxx.xxx obtains express written
consent of GE; (ii) Software was altered, modified or converted by GE or other
third party (other than a customer-configurable feature of the Software), where,
but for such alteration, modification, or conversion the Software would have
performed; or (iii) GE's computer(s) malfunctioned and the malfunction caused
the defect.
7.8 EXCEPT AS SET FORTH IN THIS SECTION, XXXXXXX.XXX AND ITS LICENSORS DISCLAIM
ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR
OTHERWISE, WITH RESPECT OT THE SOFTWARE AND SUPPORT SERVICES PROVIDED HEREUNDER,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. XXXXXXX.XXX DOES NOT WARRANT THAT THE SOFTWARE WILL BE
SECURE OR UNINTERRUPTED. GE MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE
FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES,
IF ANY,
7
SHALL BE LIMITED TO THE ABOVE LIMITED WARRANTY PERIOD. MOREOVER, IN NO EVENT
WILL WARRANTIES PROVIDED BY LAW, IF ANY APPLY UNLESS THEY ARE REQIRED TO APPLY
BY STATUTE.
8 SUPPORT SERVICES
----------------
8.1 Initial Support Services. During the one (1) year period extending from
-------------------------
the Effective Date (the "Initial Support Period"), Xxxxxxx.xxx shall provide
the Support Services described in Exhibit C.
---------
8.2 Renewals. After the Initial Support Period, Xxxxxxx.xxx's obligation to
--------
provide the above-described Support Services and GE's obligation to pay the
applicable annual Support Service fee shall renew automatically upon the first
and second anniversary of the Effective Date. Thereafter, Xxxxxxx.xxx's
obligation to provide the above-described Support Services and GE's obligation
to pay the applicable annual Support Services shall renew automatically upon
each of the [***] through [***] anniversary of the Effective Date, unless GE has
given Xxxxxxx.xxx written notice of cancellation at least thirty (30) days prior
to the expiration of the then current term.
8.3 Training. Each day On-Site Training entitles GE to a one-day standard
--------
training class on-site at GE's facilities. Each class may be attended by no more
than fifteen (15) employees of GE. GE shall be responsible for all travel,
meals, hotel and other associated expenses related to providing such training
services provided such expenses comply with the GE's travel and expense policy
as described on Exhibit E of this Agreement. GE shall pay for and Xxxxxxx.xxx
---------
shall provide the number of On-Site Training days listed on Exhibit B.
---------
9 TERM AND TERMINATION.
---------------------
9.1 This Agreement shall be in effect until terminated as provided herein. GE
may terminate the Agreement for convenience after thirty six (36) months upon
one hundred eighty days (180) written notice. For the avoidance of doubt, the
license term for the Software under this Agreement is perpetual (in accordance
with Exhibit A), subject to earlier termination in accordance with the terms
---------
hereof pursuant to a material breach by GE including, but not limited to, a
violation of Section 4.0.
9.2 Either party may terminate this Agreement upon the occurrence of any of
the following events of default:
(a) If the other party fails to perform any of the covenants defined herein or
fails to carry out or discharge any of its material obligations herein, and
fails to correct such failure within a thirty (30) day cure period
following written notice specifying such failure by the other party.
(b) If the other party shall have become insolvent or bankrupt, admitted in
writing its inability to pay its debts as they mature or taken any action
for the purpose of entering into winding-up, dissolution, bankruptcy,
reorganization or similar proceedings analogous in purpose or effect
thereto, or any such action shall have been instituted against it and such
party shall have acceded thereto or such action shall not have been
dismissed or stayed within sixty (60) days of the institution thereof, or
any order shall have been made by any competent court or any resolution
shall have been passed for the appointment of a liquidator or trustee in
bankruptcy or such party shall have appointed or suffered to be appointed
any receiver or trustee of the whole or any material part of its assets or
business or shall have entered into any composition with its general
creditors. In any such event the other party (i.e., the first party
specified in this paragraph B of Section 9.0) may terminate this Agreement
at any time after such event by giving notice or may suspend or cancel
deliveries during the continuation of any such event.
9.3 Expiration or termination of this Agreement for any reason other than
breach shall not abridge or diminish in any way the rights of GE to use the
Software previously licensed or to receive Maintenance or Support Services as
provided in this Agreement, and such use of the Software shall continue in
perpetuity subject to the applicable terms and provisions of this Agreement.
Continuation of optional Support Services for such Software is subject to the
applicable terms and provisions of Exhibits A, B and C of this Agreement. Upon
-------------------
termination for breach by GE, GE shall promptly destroy or return all copies of
the Software to Xxxxxxx.xxx and shall provide Xxxxxxx.xxx with written
certification that all such copies have been destroyed or returned. GE shall pay
Xxxxxxx.xxx in full all amounts owed to Xxxxxxx.xxx, within thirty (30) days of
termination by Xxxxxxx.xxx or for convenience by GE or expiration of this
Agreement.
9.4 Impaired Performance
--------------------
(a) In the event Xxxxxxx.xxx, except for reasons beyond its reasonable control,
willfully or grossly negligently fails to materially perform or observe any
of its obligations as expressly specified in this Agreement and Xxxxxxx.xxx
fails to take effective corrective action within thirty (30) days following
written notice thereof by GE,
8
[***] CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
GE may, without waiving its right to terminate the Agreement, accept
Xxxxxxx.xxx's impaired performance and make reasonable proportional
reduction in payment for the specific defaulting Software or service.
(b) In the event GE, except for reasons beyond its reasonable control,
willfully or grossly negligently fails to materially perform or observe any
of its obligations as expressly specified in this Agreement and GE fails to
take effective corrective action within thirty (30) days following written
notice thereof by Xxxxxxx.xxx, Xxxxxxx.xxx may, without waiving its right
to terminate the Agreement, accept GE's impaired performance and declare
that the particular and only the particular license(s) in default for the
Software is terminated immediately. GE shall immediately thereupon stop
using any terminated Software and ten (10) days after any such termination,
GE shall, at its own expense, either return to Xxxxxxx.xxx, or destroy, the
particular copy(ies) of the Software and its (their) Documentation
including any back-up copies and provide Xxxxxxx.xxx with written
certification that GE has so returned or destroyed such copy(ies).
(c) Upon written notice to the other party prior to the expiration of the
corrective action period, in accordance with Sections 9.4 (a) and (b)
above, a party has the right hereunder to request binding arbitration of
the disputed breach before the American Arbitration Association, or its
successor, however, nothing in this Section 9.4 shall be intended to or
construed as restricting a party from seeking relief in a court of
competent jurisdiction. If the parties can not mutually agree upon a
single arbitrator, each party shall designate one arbitrator provided
further that the arbitrator (s) selected shall be knowledgeable in the
computer software field. The rules and regulations to be followed shall be
those of the American Arbitration Association, or its successor, in effect
on the date of delivery of the demand for arbitration. The parties
expressly agree that the arbitrator(s) shall have the authority to issue
equitable relief. The decision of the arbitrator(s) shall be final and
binding on both parties and their respective successors and permitted
assigns, and such decision may be enforced by any court having jurisdiction
over the party against whom the award is rendered. Each party shall pay the
fees of its own attorneys and the expenses of its witnesses. All other
costs and expenses of the arbitration, including the cost of recording the
transcripts thereof, if any, administration fees and all other fees and
costs, shall be paid by the non-prevailing party. In the event the
arbitrator(s) make(s) no assessment of such other fees, costs and expenses,
such fees, costs and expenses shall be borne equally by the parties.
10. QUALITY
-------
10.1 The parties acknowledge that Xxxxxxx.xxx's willingness and ability to
provide Software and Support Services of the quality and at the levels specified
herein are the essence of this Agreement. Accordingly, the following provisions
shall apply to all Software and Support Services furnished by Xxxxxxx.xxx
hereunder:
10.2 Industry Standards. Xxxxxxx.xxx represents that its Support Services will
-------------------
be performed in a manner consistent with its Documentation and published
specifications, and shall be in accordance with the highest generally accepted
industry standards (for the same type of Services and at the same rates). This
clause shall not be interpreted as an extension to the warranty in Section 7.2,
as the latter is the warranty for the Software.
11 Limitation of Liability.
------------------------
Xxxxxxx.xxx's maximum cumulative liability to GE arising out of or relating to
this Agreement, whether based upon warranty, contract, tort, or otherwise, shall
not exceed: (i) for a claim based on the Software or the use thereof the total
amount of license fees paid to Xxxxxxx.xxx under this Agreement, and (ii) for a
claim based on the provision of Support Services, the total amount of
maintenance fees for the Maintenance Period in which the claim arose.
Except for a claim for breach of GE's intellectual property rights or GE
Confidential Information, Xxxxxxx.xxx shall not be liable for any special,
indirect, incidental, or consequential damages, including, but not limited to,
loss of profits, loss of data, or loss of use damages, arising out of or
relating to this Agreement or the creation or supplying of the Software or
Support Services, even if Xxxxxxx.xxx was aware of or was notified of the
possibility of such damages. Except for a claim for breach of Xxxxxxx.xxx's
intellectual property rights or Xxxxxxx.xxx's Confidential Information, GE shall
not be liable for any special, indirect, incidental, or consequential damages,
including, but not limited to,
9
loss of profits, loss of data, or loss of use damages, arising out of or
relating to this Agreement.
In no event shall the foregoing limitation limit either party's liability to the
other party for damages resulting from personal injury or tangible property
damage. As used above, the term "tangible property" shall not include software,
documentation and/or data files. Xxxxxxx.xxx's liability for Proprietary Rights
Indemnification shall be as expressly set forth under Section 5.0 and not
subject to any limitation whatsoever.
12 RIGHT TO AUDIT
--------------
The parties agree to apply reasonable efforts to minimize reporting requirements
in the administration of this Agreement except as specifically set forth in
accordance with Exhibit A. Notwithstanding, the intent of those efforts to
---------
minimize reporting requirements shall not preclude Xxxxxxx.xxx the ability or
right to protect its interests under this Agreement, and therefore there may be
some instances in which an ability to audit is necessary.
13. Cumulative Remedies. The remedies under this Agreement shall be
-------------------
cumulative and not alternative and the election of one remedy for a breach shall
not preclude pursuit of other remedies unless expressly provided otherwise in
this Agreement.
14. Dispute Resolution. Before either party initiates any arbitration
------------------
proceeding as set forth in Section 9 above or any legal action against the other
arising from this Agreement (other than to seek injunctive or other equitable
relief), the matter in controversy will first be referred to the chief
information officers or other appropriate officers of the parties. Such
officers shall take all reasonable steps to attempt to resolve the matter within
four (4) weeks of the date of referral.
15. Governing Law. This Agreement shall be governed in all respects by the
-------------
substantive laws of the State of New York, United States of America, without
regards to its rules on conflicts of law. The parties specifically disclaim the
applicability of the United Nations Convention on Contracts for the
International Sale of Goods.
16 Notices. Notices will be in writing and will be sent to the address below.
-------
Any notice may be delivered personally or by certified mail, (or the equivalent)
and will be deemed to have been serviced, if by hand when delivered, if by mail
48 hours after mailing.
If to Xxxxxxx.xxx:
------------------
Xxxxxxx.xxx, Inc.
000 Xxxxxxxx
Xxxxxxx Xxxx, XX 00000
Attention: Corporate Counsel
If to GE:
---------
Xxxx Xxxxxxxxxx
Manager, Technology
General Electric Company
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
17. Export Restrictions. GE agrees to comply with all applicable export and
-------------------
import laws and regulations. During the term of this Agreement, Xxxxxxx.xxx
will, as a material obligation of this Agreement, disclose the levels of
encryption technology contained within the Software sufficient for GE to comply
with all applicable export and import law and regulations. Furthermore,
Xxxxxxx.xxx will notify GE, sufficiently in advance, when the level of
encryption technology changes as long as the change(s) is in adherence to such
export and import laws and regulations.
18. Assignment.
----------
18.1 Assignment by Xxxxxxx.xxx
-------------------------
Xxxxxxx.xxx shall not assign or sublicense its rights under this Agreement
to any other person, entity or affiliate without the prior written consent
of GE, which consent shall not unreasonably be withheld or delayed.
Notwithstanding the foregoing, Xxxxxxx.xxx may assign all of its rights
and obligations hereunder in the case of (i) the sale of all or
substantially all of the capital stock or assets of Xxxxxxx.xxx, or (ii)
the merger of Xxxxxxx.xxx with and into another entity where the
Xxxxxxx.xxx is not the surviving entity. GE hereby authorizes the
foregoing assignments, provided that (a) such transfers or assignments are
made pursuant to a written assignment and assumption agreement under which
the transferee agrees to perform all of Xxxxxxx.xxx's obligations
hereunder; and (b) Xxxxxxx.xxx may not transfer or assign its rights or
obligations hereunder to any then-current competitor or customer of GE (or
any affiliate, division, operating unit or subsidiary of such competitor
or customer).
18.2 Assignment by GE
----------------
(a) GE may assign or otherwise transfer Software or the Agreement, in whole,
to third
10
parties (such party, a "Transferee") following notice to Xxxxxxx.xxx in
connection with the sale of all or substantially all of the capital stock
or assets of GE or a division, business operation or subsidiary of GE (any
of the foregoing, a "GE Business Unit"). Xxxxxxx.xxx hereby authorizes the
foregoing assignments, provided that (a) such transfers or assignments are
made pursuant to a written assignment and assumption agreement; (b) all
fees due to Xxxxxxx.xxx for use by GE of such Software and Support
Services prior to such assignment have previously been paid; (c) GE may
not transfer or assign any Software or related materials to any then-
current competitor or customer of Xxxxxxx.xxx (or any affiliate, division,
operating unit or subsidiary of such competitor or customer); and (d) the
Transferee shall have signed mutually agreeable software license and
support agreements with Xxxxxxx.xxx as set forth below.
Xxxxxxx.xxx hereby agrees that the material terms of the Software license
granted to GE hereunder shall be passed on to a Transferee for no
additional license fee for the term of this Agreement provided that (i)
the scope of use of the Software by the Transferee does not and will not
exceed the scope of use at the time of transfer of the Software by GE or
the applicable GE Business Unit; (ii) GE notifies Xxxxxxx.xxx of the total
number of Healing Agent licenses that will be transferred to the
Transferee at the time of divestiture and such transferred licenses shall
then vest in the divested entity; and (iii) that number of transferred
licenses at the time of divestiture will be included in the number of
Healing Agents as called for on Exhibit A. In the event that the divested
---------
entity has additional requirements or terms (including fees for licenses
and services) said requirements or terms will be determined between the
divested entity and Xxxxxxx.xxx, and those additional Healing Agent
licenses will not be included in the total called for on Exhibit A. When
---------
the Software is transferred to a Transferee, GE's license and GE's right
to use the Software, to the extent such rights have been transferred, are
terminated.
(b) GE shall notify Xxxxxxx.xxx in writing within thirty (30) days of the
assignment date and shall furnish Xxxxxxx.xxx a copy of an executed
assignment agreement demonstrating that Transferee agrees to be bound by
the terms and conditions of this Software license. The assignment
agreement between GE and Transferee shall contain the number of Healing
Agents that are being transferred
(c) Notwithstanding any assignment of the rights and obligations of GE to
Transferee, GE shall continue to be bound by the confidentiality and non-
disclosure provisions of this Agreement, which provisions shall survive
such assignment. GE may not retain any copies of Software or Documentation
licensed hereunder following the assignment to Transferee.
(d) An assignee of either party, if authorized hereunder, shall be deemed to
have all of the rights and obligations of the assigning party set forth in
this Agreement. It is understood that no assignment shall release the
assigning party from any of its obligations, and the "assigned" party
shall carry all obligations.
19. [***]. Xxxxxxx.xxx represents that the unit [***] being provided
---
hereunder are [***] than the unit [***] by Xxxxxxx.xxx to [***] using the [***]
of the Software for internal purposes.
20. Independent Contractor. The relationship created by this Agreement is one
----------------------
of independent contractors, and not partners, franchisees or joint venturers.
No employees, consultants, contractors or agents of one party are employees,
consultants, contractors or agents of the other party, nor do they have any
authority to bind the other party by contract or otherwise to any obligation,
except as expressly set forth herein. Neither party will represent to the
contrary, either expressly, implicitly or otherwise.
21. Headings. The descriptive headings of this Agreement are intended for
--------
reference only and shall not affect the construction or interpretation of this
Agreement.
22. Severability. If any provision of this Agreement is held by decision of a
------------
court of competent jurisdiction to be ineffective, unenforceable or illegal for
any reason, such decision shall not affect the effectiveness, validity or
enforceability of any or all of the remaining provisions hereof, and if any
provision of this Agreement is so held to be ineffective, unenforceable, or
illegal with respect to any particular circumstances, such provision shall
remain in full force and effect in all other circumstances.
23. Publicity. As a material obligation of this Agreement, neither party
---------
shall use the name, logo, trademark, or any reference either direct or indirect
of the other in publicity releases, advertising, case
11
[***] CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY WITH THE COMMISSION.
studies or references without the prior written consent of the other. Except as
set forth in Exhibit D, Paragraph VIII or unless the parties mutually agree
--------- --------------
during the term of this Agreement, Xxxxxxx.xxx understands that GE does not
contemplate providing any such consent and is under no obligation, express or
implied, to provide any such consent, and, in the event that any such consent
should be granted for a particular communication, GE shall not be under any
further obligation to provide consent in any future request. Both parties to
this Agreement agree not to disclose the existence or terms of this Agreement to
any third party without the prior written approval of the other, except that GE
may disclose this Agreement to an Assignee instituted by GE pursuant to Section
18.2 hereof or pursuant to Section 4(j).
24. Amendment. Any waiver, amendment or modification of any of the provisions
---------
of this Agreement, or any right, power or remedy hereunder, shall not be
effective unless made in writing and signed by the party against whom
enforcement of such waiver, amendment or modification is sought. No failure or
delay by either party in exercising any right, power, or remedy with respect to
any of its rights hereunder shall operate as a waiver thereof in the future.
25. Security. In the event that any Xxxxxxx.xxx personnel are physically
--------
present at a GE location pursuant to this Agreement, any such physical presence
shall be subject to commercially reasonable security requirements, provided that
GE will indemnify and hold Xxxxxxx.xxx harmless against any claims by such
personnel related to an invasion of privacy, and Xxxxxxx.xxx shall indemnify GE
against any claims that may arise because of the negligence of such personnel.
26. Disputes; Injunctive Relief. In the event of a legal action brought by one
---------------------------
party against the other and arising out of this Agreement, the prevailing party
is entitled to recover reasonable attorneys' fees and court costs. Any attempted
or actual violation of the terms set forth in this Agreement regarding
confidential information or intellectual or proprietary rights is a breach of
this Agreement which will cause irreparable harm to the injured party entitling
such party to injunctive relief in addition to all other available legal
remedies.
27. Survival. The following provisions will survive termination of this
--------
Agreement: 1, 3.2-3.7, 4-6, 7.7, 7.8, 9, 11-13, 15-17, 20-24, 26-32, and only in
the event the termination does not result from a breach of this Agreement by GE,
2 and 3.
28. Entire Agreement; Conflict. This Agreement, together with all exhibits and
--------------------------
schedules hereto, constitutes the complete, final and exclusive statement of the
terms of the Agreement between the parties pertaining to the subject matter
hereof and supersedes all prior agreements, understandings, negotiations and
discussions of the parties. No modification or rescission of this Agreement
shall be binding unless executed in writing by the party to be bound thereby.
This Agreement includes and incorporates herein by this reference the Exhibits A
----------
through E attached hereto. In the event of any conflict between the terms and
---------
conditions of this Agreement and an Exhibit, the terms and conditions of the
Exhibit shall prevail. Any different or additional terms of any related purchase
order, confirmation, invoice, or similar form shall have no force or effect.
29. Force Majeure. Either party shall be excused from any delay or failure in
-------------
performance hereunder due to causes beyond its control, including but not
limited to, acts of God, earthquake, floods, lightning, labor disputes and
strikes, other labor or industrial disturbances, riots, war, acts of the public
enemy, insurrections, embargoes, blockages, regulations or orders of any
government, agency or subdivision thereof, shortages of materials, rationing,
utility or communication failures, casualty, novelty of product manufacture or
other unanticipated product development problems, and governmental requirements.
The obligations and rights of the party so excused shall be extended on a day-
to-day basis for the period of time equal to that of the underlying cause of the
delay; provided that such party shall give notice of such force majeure event to
the other party as soon as reasonably possible.
30. Authority. Each party represents that all corporate action necessary for
---------
the authorization, execution and delivery of this Agreement by such party and
the performance of its obligations hereunder has been taken.
31. Privacy. The Software contains features which may allow GE to collect
-------
data from, control and/or monitor computers running the Software without notice
to or knowledge by end users of the Software. GE is solely responsible for, and
assumes all liability with respect to all such activity. GE shall indemnify
Xxxxxxx.xxx against any damages, claims, losses, settlements, attorneys' fees
and other expenses related to any such activities.
32. Government End-Users. As defined in Federal Acquisition Regulations (FAR)
--------------------
section 2.101 (or otherwise), the Software and any accompanying documentation
licensed in this Agreement are deemed to be "commercial items" and commercial
computer software" and "commercial computer software documentation." Consistent
with DFAR section 227.7202 and FAR section 12.212, any use, modification,
reproduction, release, performance, display, or disclosure of the Software by
the U.S. Government shall be governed solely by the terms of this Agreement and
shall be prohibited except to the
12
extent expressly permitted by the terms of this Agreement.
33 Encryption. The security mechanisms implemented by the Software have
-----------
inherent limitations and GE must determine that the Software sufficiently meets
its requirements.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year above written.
ACCEPTED BY:
----------------------------- ----------------------------
("General Electric Company") ("Xxxxxxx.xxx")
By: /s/ Xxxx Xxxxxxxxxx By: /s/ Xxxxx X. Xxxx
---------------------------- ----------------------------
Name: Xxxx Xxxxxxxxxx Name: Xxxxx X. Xxxx
------------------- -------------------
Title: Mgr, Technology Title: President & CEO
------------------------- -------------------------
13
EXHIBIT A
SOFTWARE LICENSE
----------------
I. Description Software:
-------------------------
SUPPORT CENTER, Version 3, in object code format and including all underlying
technology elements expressed in a higher level language, e.g. html,
scripts (but excluding source code)
SUPPORT PORTAL, Version 3 in object code format and including all underlying
technology elements expressed in a higher level language, e.g. html,
scripts (but excluding source code)
FOUNDRY, Version 3, in object code format and including all underlying
technology elements expressed in a higher level language, e.g. html,
scripts (but excluding source code)
II. Number of Network Computers and Workstations Licensed
----------------------------------------------------------
Software Number of Authorized Copies
-------- ---------------------------
SUPPORT CENTER:
---------------
Xxxxxxx.xxx Healing Agent Unlimited for [***] Years (see Section III below)
Xxxxxxx.xxx Healing Console Unlimited for [***] Years (see Section III below)
Xxxxxxx.xxx Server Unlimited for [***] Years (see Section III below)
SUPPORT PORTAL:
--------------
Web Application Unlimited for [***] Years (see Section III below)
Nexus Unlimited for [***] Years (see Section III below)
FOUNDRY: Unlimited for [***] Years (see Section III below)
--------
III. Deployment Term
---------------
GE shall have the right to use the Software on an unlimited number of GE
Computers and GE Networks for a period of [***] ([***]) years commencing on the
Effective Date ("Deployment Term"). Upon expiration of the Deployment Term, all
rights to unlimited usage of the Software shall cease and GE shall retain a
perpetual right only to: (i) the number of Healing Consoles installed and in
Operational use by GE, (ii) the number of Servers then configured and in
Operational use by GE; (iii) the number of Web Applications then installed and
in Operational use by GE; (iv) the number of Nexus components then installed and
in Operational use by GE; (v) the number of Foundry products installed and in
Operational use by GE; and (vi) the number of Healing Agents then deployed and
in Operational use as permitted ("Deployed Healing Agents"). In the event the
number of Deployed Healing Agents is less than [***] ([***]), then GE shall be
entitled to deploy up to an aggregate total of [***] Healing Agents without
owing any further license fees to Xxxxxxx.xxx and in the event the number of
Deployed Healing Agents is greater than [***] ([***]), then GE and Xxxxxxx.xxx
shall negotiate in good faith to determine the amount owed to Xxxxxxx.xxx for a
perpetual license for each Deployed Healing Agent in excess of [***] and any
such incremental fee would be on a basis no less favorable than this Agreement.
In any event, support and maintenance fees following the Deployment Term shall
be negotiated in good faith based upon a proportional increase or decrease in
the number of Deployed Healing Agents. GE shall report the number of Deployed
Healing Agents and each such other component then installed or configured and in
Operational use to Xxxxxxx.xxx in a writing executed by a company executive
within sixty (60) days after the expiration or termination of the Term.
2
[***] CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
EXHIBIT B
FEE SCHEDULE
------------
I. Software Fees
------------ ----
As set forth on Exhibit A $[***]
---------
II. Support and Maintenance Fees
--------------------------- ----
3 Years of support and maintenance 1st year included in Software Fees
for the Software purchased hereunder $ [***] (2nd year)
$ [***] (3rd year)
III. Implementation Services Fees
---------------------------- ----
2 people for [***] days at [***] [***] (except for T&E)
GE Business (to be used during or
[***] to the [***] month
[***] commencing on the Effective Date; GE acknowledges that some of these days
have already been served as of the Effective Date)
IV. Training Fees
------------- ----
[***] Days of On-Site Training [***] (except for T&E)
-for up to 15 employees
V. Invoicing
--------------
On the Effective Date: $ [***]
On the first anniversary of the Effective Date $ [***]
On the second anniversary of the Effective Date $ [***]
VI. [***] Pricing
------------------
[***] Support and Maintenance Fees ("Support Services"): If GE [***] to [***]
Support Services for the Software licensed hereunder for the [***] ([***]) [***]
period commencing on the [***] and [***] anniversary of the Effective Date, such
Support Services fees will be $ [***] each year, respectively.
[***] Services
For a period of [***] from the Effective Date, if GE [***] to [***] On-Site
Training Days and Implementation Services Days, the price for each such day will
be $[***], plus reasonable travel and related expenses (in accordance with GE's
travel and expense policy in accordance with Exhibit E). Payment for such days
shall be due [***] ([***]) [***] after receipt of an invoice reflecting services
performed in the previous month.
3
[***] CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
EXHIBIT C
SUPPORT SERVICES
----------------
During the period for which GE has paid the applicable Support Services fee, GE
shall be entitled to the following:
I. Software Services
Support Services shall entitle GE to all Product Upgrades as defined under
Section 1.12 of this Agreement. Product Upgrades shall be subject to the terms
and conditions applicable to the Software as set forth in this Agreement.
Xxxxxxx.xxx will support the most current version of the Software and the
release immediately preceding the new version of the Software. On-site
implementation and training for Product Upgrades is available from Xxxxxxx.xxx
at mutually agreeable times and at the rates described under Exhibit B.
---------
II. Software Technical Support
Xxxxxxx.xxx shall provide assistance in the English language, by telephone, or
other electronic means available by Xxxxxxx.xxx, to answer urgent and immediate
questions, during the hours of 7 a.m. to 7 p.m. (Pacific time), Monday through
Friday, excluding Xxxxxxx.xxx holidays. All telephone assistance shall be given
only to two (2) named employees of GE with sufficient knowledge of the Software
("Designated GE Contacts"); such Designated GE Contacts may be changed by GE
from time to time by written notice to Xxxxxxx.xxx, provided such Designated GE
Contacts have attended appropriate Xxxxxxx.xxx training of the Software.
Xxxxxxx.xxx shall not be required to deal with any person other than the
Designated GE Contacts. Additional Designated GE Contacts can be purchased at
Xxxxxxx.xxx's standard rates. All additional assistance provided by Xxxxxxx.xxx
to GE, including, but not limited to, custom programming, data conversion and
consulting shall be charged at Xxxxxxx.xxx's then-current standard time and
material rates. Notwithstanding the foregoing and provided GE is then current
under support and maintenance, for the period beginning [***] ([***]) [***]
after the Effective Date, Xxxxxxx.xxx shall provide the above described
assistance to a total of [***] ([***]) Designated [***] (provided each such
[***] has attended appropriate Xxxxxxx.xxx [***]) and shall also provide the
above described assistance in the following [***].
Xxxxxxx.xxx shall use commercially reasonable efforts to remedy any reproducible
Error (as defined below) in the Software reported in writing by GE in accordance
with the Severity Levels set forth below. Xxxxxxx.xxx's obligation to provide
such services shall continue only so long as GE maintains the current installed
version of the Software, without modification by any party other than
Xxxxxxx.xxx and so long as the equipment on which the Software is installed is
configured as specified in the Documentation or as otherwise specified by
Xxxxxxx.xxx.
"Error" means a material failure of the Software to conform to its functional
specifications as described in the applicable Documentation, which failure is
demonstrable in the environment for which the Software was designed and causes
it to be inoperable, to operate improperly in the environment for which it was
designed, or produces results different from those described in the applicable
Documentation. The specific Severity Levels are set forth below. Failure
resulting from GE's negligence or improper use of the Software, modifications or
damages to the Software by GE, and GE's use of the Software on a platform or
with an operating system other than the designated platform in the Documentation
or in combination with any third party software not provided by Xxxxxxx.xxx, are
not considered Errors except as reasonably contemplated by the parties.
"Severity 1 Error": The Software materially fails to conform to the functional
-------------------
specifications set forth in Documentation and GE is unable to proceed without a
fix to the problem or a work-around solution provided by Xxxxxxx.xxx (no
functionality, e.g., system down problems). Severity 1 Errors shall be directly
reported to Xxxxxxx.xxx Technical Support by telephone at numbers provided by
Xxxxxxx.xxx. All such Severity 1 Errors will be assigned to Technical Support
Specialist and a Support Manager. Supplier will initially respond to GE within
four (4) business hours of receipt of the Severity 1 Error by Xxxxxxx.xxx. This
response will inform GE of the identity of Supplier personnel assigned and of
the plan to seek resolution. Xxxxxxx.xxx will in addition provide regular
status updates.
"Severity 2 Error": The Software contains major functional problems against the
------------------
Documentation, which GE is able to work around but the Software can only be used
to a limited degree (partial or limited functionality). Severity 2 category
Errors shall be directly reported to Xxxxxxx.xxx Technical Support by telephone
or e-mail. All such problems. Xxxxxxx.xxx will initially respond to GE within
eight (8) business hours of receipt of the Severity 2
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program error by Xxxxxxx.xxx. This response will inform GE of the identity of
Supplier personnel assigned and of the plan to seek resolution. Xxxxxxx.xxx will
in addition provide regular status updates.
"Severity 3 Error": Software or documentation contains incorrect logic,
-------------------
incorrect descriptions, or functional problems, which GE is able to work around,
or where a temporary correction has been implemented (fully functional but needs
improvement). Xxxxxxx.xxx will initially respond to GE within one business day
of receipt of the Severity 3 program error by Xxxxxxx.xxx. This response will
inform GE of the identity of the Xxxxxxx.xxx personnel assigned and of the plan
to seek resolution. Xxxxxxx.xxx, in addition, will provide regular status
updates provided however that Xxxxxxx.xxx shall have the right to prioritize
Severity 3 Errors and include corrections for such Errors in future releases at
its sole discretion.
GE Obligations. In addition to providing Xxxxxxx.xxx with full, good faith
cooperation and such information as may be required by Xxxxxxx.xxx in order to
perform the support and maintenance services, GE shall provide Xxxxxxx.xxx with
(i) specific detailed information concerning GE's use of the Software as may be
required for the performance of the support and maintenance services and (ii)
all necessary computer services information and access to key personnel needed
to provide the support and maintenance. If GE fails or delays in its
performance of any of the foregoing responsibilities, Xxxxxxx.xxx shall be
relieved of its obligations hereunder to the extent such obligations are
dependent upon such performance.
License Grant. In the event any work product or code is created in the
provision of support and maintenance services hereunder, such work product or
code shall be included within Software and licensed to GE under the terms and
conditions of this Agreement, and Xxxxxxx.xxx shall retain all right, title and
interest in and to such work product or code and any derivatives, enhancements
or modifications to the Software created by Xxxxxxx.xxx.
Exclusions. Xxxxxxx.xxx is not required to provide any Support services
relating to problems arising out of (i) changes to the operating system or
environment which adversely affect the Software; (ii) use of the Software in a
manner not specified in the Documentation unless reasonably contemplated by the
parties; (iii) accident, negligence, or misuse of the Software; or (iv)
alterations or modifications to the Software by GE unless such alteration or
modifications were reasonably contemplated by the parties.
5
EXHIBIT D
SPECIAL TERMS AND CONDITIONS ATTACHMENT
---------------------------------------
I. [***] Support.
Xxxxxxx.xxx agrees that the availability of [***] mentioned herein was an [***]
for [***] to [***] this Agreement. Therefore, Xxxxxxx.xxx shall use commercially
reasonable efforts to make available the programs set forth on Exhibit A [***]
---------
within [***] ([***]) months from the Effective Date. Moreover, Xxxxxxx.xxx
has a [***] to make available the programs set forth on Exhibit A [***]
---------
within [***] ([***]) months of the Effective Date. Upon release of such [***],
GE shall be entitled to use [***] versions, subject to the terms and conditions
herein, [***].
II. [***] Support [***].
Within [***] ([***]) days of the Effective Date, Xxxxxxx.xxx shall provide an
[***] Support [***] ([***]) for a period of time not to exceed [***] ([***])
months. The [***] shall be [***] GEGE headquarters in Fairfield, Connecticut and
GE shall provide the [***] a [***], a [***], and [***], as well as [***] ([***])
[***] one hundred percent (100%) to assist the [***] in establishing [***], and
[***] of problems. The [***] shall not be expected to travel, but in the event
travel becomes reasonably necessary, it shall be controlled and managed to cause
minimum impact on the [***] and [***] shall be responsible for all travel costs
provided such travel costs meet GE's standard travel and expense policy in
accordance with Exhibit E. The [***] will have a [***] and will have the [***]
---------
to [***] technical support issues and use reasonable commercial efforts to [***]
reports, distribute [***], and share [***]. The [***] shall not be responsible
for [***] of the Software, [***] of the Software, or [***] on [***] to [***] the
Software; such services are available on a fee per day basis, as set forth in
Exhibit B. The [***] position is based upon an [***], and [***] for [***]
---------
holidays, training, and company functions.
III. Assistance with Roll-outs.
During the performance of the Implementation Services at the initial [***]
([***]) GE businesses (as set forth in Exhibit B), Xxxxxxx.xxx will document
---------
information learned during, and specifics about, the rollouts at the [***]
([***]) GE businesses in order to share such information with [***].
IV. [***]
During the performance of the Implementation Services at the initial [***]
([***]) GE businesses (as set forth in Exhibit B), and thereafter for a total of
---------
[***] ([***]) months, if deemed necessary by Xxxxxxx.xxx, Xxxxxxx.xxx will
conduct a [***] ([***]) [***] for the [***] of the Software at such [***]
([***]) businesses, with the intent to [***] only to [***] in accordance with
Section 23 of this Agreement to [***] the [***] other [***] or [***]. At [***],
GE agrees to be [***] a [***] for Xxxxxxx.xxx [***] use of the Software; it is
understood that this will be a [***] and will be [***] to ensure [***].
V. Kickoff Session.
Xxxxxxx.xxx and GE will jointly host a 1-day kickoff session (at a mutually
agreed upon time and location) where various representatives of the GE
businesses (and/or their service providers) can attend and receive high-level
exposure to the Software and Documentation, and review rollout strategies.
Xxxxxxx.xxx will participate with technical experts who can field questions, as
well as discuss lessons learned to date. The intent of this meeting will be to
accelerate the deployment of the Software within GE's environment, and educate
the I/T staff of GE on deployment issues. During this session, both parties
will introduce the resources to be applied to the initiative, and discuss the
processes in which GE businesses will seek support, communicate, and work with
Xxxxxxx.xxx and the GE project office.
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VI. [***]
During the [***] ([***]) month period commencing on the Effective Date,
Xxxxxxx.xxx will assist GE in allowing the [***] ([***]) to [***] the use of the
Software [***] . Such assistance shall be (i) the [***] ([***]) days of on-site
training (as set forth on Exhibit B), and (ii) advice and counsel from [***],
---------
upon [***] from [***] provided that such requests are [***] and [***] to [***].
VII. [***]
During the [***] ([***]) month period commencing on the Effective Date,
Xxxxxxx.xxx shall make available [***] in support of [***]. Such [***] shall be
to provide an available [***] member for [***] ([***]) [***] at [***] to [***]
and thereafter at a rate of $ [***].
VIII. [***]
[***] Release. Upon initial deployment of the Software, and [***] to the initial
-------------
[***] ([***]) GE business at which the [***] are performed, [***] agrees to
[***] with [***] to provide a [***] upon [***] which [***] of the [***].
IV. Customer Advisory Board
Xxxxxxx.xxx will make available to GE two (2) seats on the Xxxxxxx.xxx Customer
Advisory Board, for the eighteen (18) month period commencing on the Effective
Date.
7
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EXHIBIT E
GE TRAVEL and LIVING POLICIES
Travel & Living Guidelines for Corporate Employees
Receipts are required for all corporate card items and for cash items of $15 or
more.
Air Travel
----------
Coach class is required for all flights within North America, within Europe, and
--------
within Asia-Pacific (for flights originating in those respective regions).
Coach class is strongly recommended for all flights between North America and
--------------------
Europe and between North America and the northern portion of South America.
For these flights, because of the combination of longer distances and the
potential for unusual timing or circumstances, the ultimate decision between
coach and business class remains with the traveler. It is expected that the
choice of business class will be limited.
Business class is allowed for flights beyond the above "coach zone", e.g., North
-------
America to Asia-Pacific.
. Officer pre-approval is required for any exception to the above service class
guidelines.
. Employees may retain credits from frequent traveler programs. However, travel
Employees may retain credits from frequent traveler programs. However, travel
plans, routing requirements, etc., should not result in additional expense to
the Company nor require an increase in travel time during regularly assigned
working hours.
. The cost of upgrading an airline ticket to another class is not reimbursable.
. Make your own travel reservations and when possible schedule meetings to
allow for travel during off-peak hours.
. Take the "best buy" air fare recommended by the agent.
. Book tickets as early as possible.
. Use teleconferencing and/or videoconferencing to minimize travel costs.
. Minimize number of employees taking same trip, e.g., to trade shows,
conferences, etc.
. Consider non-refundable fare for frequent trips to the same location.
. Consider staying over on Saturday night to obtain lower air fare (Company
will reimburse hotel and meal costs if the total cost is lower).
Ground Transportation
---------------------
. Use hotel/airport shuttle services when practical.
. Book smallest rental car practical for traveler's purpose.
. When using your personal vehicle, you will be reimbursed @ $.325 per mile,
which covers depreciation, insurance, and gas.
. For New York airports private limos are not allowable expenses, except:
. When traveling outside normal working hours (very early in the morning or
late in the evening) or when there is a safety concern;
. When there are at least two passengers and a private limo would be a lower
---
cost option than other alternatives such as a rental car or scheduled limo
service with Red Dot.
. From Fairfield use Hertz or Red Dot Limo Service.
. Minimize Company costs on rental cars by: declining Collision Damage Waiver
inn the U.S. (covered under GE contract programs); returning rental cars
with a full tank of gas.
Living, Meals & Other Expenses
------------------------------
. Meals are reimbursable provided you are on Company business away from your
normal place of business with an overnight stay.
. On a day trip, meals eaten outside your regularly assigned work hours are
reimbursable.
8
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Other Reimbursables
-------------------
. Nominal gifts in lieu of meals and/or lodging at friends' or relatives'
residences are reimbursable as long as the cost to GE is lower.
. Gratuities for bellhop, taxi, meals, etc.
. Highway tolls and parking fees.
. Laundry and dry cleaning services if the employee is away for five
consecutive days.
. Telephone and fax expenses incurred on behalf of the Company, including
essential calls to home.
. Use your Dial Comm Key Card for all long distance phone calls.
. Review "in lieu of" situations with your financial representative.
Expenses Not Reimbursable
-------------------------
The following items are considered to be of a personal nature, and therefore are
not normally reimbursable by the Company.
. Airline club membership fees
. Clothing or toiletries, except if caused by airline delay or overbooking of
airplane reservations
. Cost of an employee's family member traveling with the employee, except wen
the family member's presence serves a business purpose and the costs have
Corporate Officer approvaL
. Cost of a circuitous or side trip for personal convenience or benefit . Cost
of a circuitous or side trip for personal convenience or benefit
. Fines for traffic violations
. Gifts to employees or their families of flowers, money, merchandise, or
services
. Insurance on personal property; personal travel insurance
. Items for personal use, such as: hairstyling, shoe shine, magazines,
newspapers, movies (including in-room movies), shows, and sporting events
(unless for entertainment on behalf of the Company) and other similar items
. Loss or theft of personal property (e.g., clothes, jewelry, etc.), cash
advance, personal funds, or tickets
. Maintenance or repair of personal property (e.g.,
home and grounds) while out of town on Company business
. Parking or garage charges at the employee's regularly assigned place of
business
. Personal credit card fees or charges incurred as a result of third-
party misuse of lost credit cards
. Traveling expense between home and regularly assigned place of business
9
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Product Enhancements
[***] [***] to [***] and provide [***] during a [***].
[***] A [***] to [***] and [***] information. The [***]
will help [***] the [***] for each [***].
[***] [***] to [***] the [***] and [***] and [***] the
[***] of the [***].
[***] [***] and [***] about [***] and [***].
[***] An [***] to [***] to [***]. This enables existing
[***] to be [***] to [***] for [***].
[***] [***] and [***] to handle [***]. After [***], the
product is [***] to [***] and [***].
[***] [***] the [***] to [***] to [***] on [***].
15 February 2000 /s/ Xxxxx X. Xxxx
[***] CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
Release Schedule
Continuous and Growing
[***]
15 February 2000 /s/ Xxxxx X. Xxxx
[***] CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
