EXHIBIT 10.36
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
LICENSE AND ALLIANCE AGREEMENT
------------------------------
This LICENSE AND ALLIANCE AGREEMENT (the "Agreement") is made as of May 1, 1996
by and between CSC Consulting, Inc., a Massachusetts corporation with its
principal place of business at Xxxxxxxxxx Xxxxxx Xxxx, 00 Xxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000 ("CSC") and Peritus Software Services, Inc. a Massachusetts
corporation with its principal place of business at 000 Xxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 ("Peritus").
BACKGROUND
CSC and Peritus possess complementary skills and offerings,
and they believe that together they can provide Year 2000
("Y2000") solutions to their clients and customers through
engaging in certain joint activities under the terms set out
below with the objective of developing new business for each
of the parties. In consideration of the foregoing recitals and
the mutual covenants set forth herein, the parties agree as
follows:
1. SCOPE
--------------
1.1 This Agreement sets forth the general terms of the relationship between
the parties. Specific activities of the parties under the terms of this
Agreement will be set forth in Schedules to this Agreement. Each Schedule
executed by the parties shall be incorporated in and made a part of this
Agreement. In the event of an inconsistency between the terms of a Schedule and
the terms of this Agreement, the terms of the Schedule shall take precedence to
the extent of the inconsistency.
1.2 Except as otherwise expressly provided herein or in a Schedule, CSC and
Peritus agree that this Agreement is non-exclusive, and neither party shall be
prevented hereby from entering into similar arrangements with other parties.
2. CERTAIN DEFINITIONS
----------------------------
2.1 Automate:2000. The Peritus services utilizing Peritus processes,
methodologies, and technology for renovating computer software code to provide
Y2000 compatibility.
2.2 AutoEnhancer/2000. A Peritus Y2000 conversion product, based on the
Peritus Code Analyzer, which can be used to identify, correct and verify date-
field processing
in mainframe computer application systems including program source code,
production Job Control Language ("JCL") files and data files.
2.3 Licensed Software. All software, together with related documentation,
comprising Automate:2000 and Auto/Enhancer 2000, which is licensed to CSC
herein.
3. OVERVIEW OF RELATIONSHIP
---------------------------------
3.1 The parties will co-operate with each other in order to identify,
develop and exploit new business opportunities for each party, as more
specifically provided in a Schedule.
3.2 Each party will provide the other with information and support as may
be requested and mutually agreed in a Schedule, in order to enable the parties
to pursue mutually beneficial business opportunities, joint bids or other
initiatives specified in Schedules.
3.3 Each party will promote the services, products and offerings of the
other in accordance with the Schedules.
3.4 Each party will facilitate contacts and the dissemination of
information between the parties by providing the other with opportunities to
present and demonstrate its offerings at the appropriate sales and marketing,
technical and other such meetings and conferences as may be mutually agreed.
4. CONFIDENTIALITY
------------------------
4.1 It is anticipated that each of the parties will disclose to the other
proprietary and confidential information which is identified as proprietary and
confidential at the time of disclosure or which can reasonably be regarded as
confidential ("Information"). Information shall include software programs,
technical data, customer information and business information of the parties.
4.2 Each party shall be a "Disclosing Party" with respect to Information
which that party discloses to the other and shall be a "Receiving Party" with
respect to Information which that party receives from the other. A Disclosing
Party shall not identify as Information any information which the Disclosing
Party does not, in good faith, consider to be proprietary and/or confidential.
4.3 The Receiving Party shall employ diligent efforts to maintain the
secrecy and confidentiality of all Information. Such diligent efforts shall be
at least equivalent to that degree of care which Receiving Party normally
exercises with regard to its own property that it maintains secret and
confidential, but in any event no less than a reasonable degree of care.
-2-
4.4 The Information may be disclosed only for purposes of the joint
activity with Disclosing Party and only to the Receiving Party's employees with
a need to know, provided that each such employee has previously been advised of
the confidentiality obligations of this Agreement.
4.5 The disclosure of Information shall not be construed to grant to the
Receiving Party any ownership or other proprietary interest in the Information.
The Receiving Party agrees that it does not acquire any title, ownership, or
other intellectual property right or license by virtue of such disclosure.
4.6 A Receiving Party has no obligation with respect to any Information
disclosed hereunder which: (a) was in Receiving Party's possession before
receipt from Disclosing Party other than through prior disclosure by Disclosing
Party; or (b) is or becomes a matter of general public knowledge through no
breach of this Agreement; or (c) is rightfully received by Receiving Party from
a third party without an obligation of confidentiality; or (d) is independently
developed by Receiving Party; or (e) is disclosed under operation of law,
governmental regulation, or court order, provided Receiving Party first gives
Disclosing Party notice and a reasonable opportunity to secure confidential
protection of such Information.
4.7 Upon termination of this Agreement, the Receiving Party shall (a)
immediately cease using the Information, (b) promptly return to the Disclosing
Party all tangible embodiments of the Information, and (c) promptly certify in
writing Receiving Party's compliance with this paragraph. The confidentiality
obligations of a Receiving Party under this Agreement shall survive any
cancellation, expiration or termination hereof.
4.8 In the event that a Receiving Party breaches the provisions of this
Article 4, the damage to the Disclosing Party will be irreparable. Therefore, in
the event of a breach or threat of breach, Disclosing Party shall be entitled to
equitable relief to restrain such breach or threat of breach, in addition to any
other relief available at law or in equity.
5. INTELLECTUAL PROPERTY RIGHTS
-------------------------------------
5.1 Except as expressly provided herein or in a Schedule, nothing in this
Agreement shall be construed to grant to either party any ownership or other
interest in the intellectual property of the other.
5.2 (a) Subject to the terms of this Agreement and the attached Schedules,
Peritus hereby grants and CSC hereby accepts a non-exclusive license to use the
Licensed Software in connection with providing Year 2000 services during the
term of this Agreement. Payment for such license shall be made in accordance
with the terms set forth in the Schedules.
-3-
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Astericks denote such omissions.
(b) Subject to the terms of this Agreement and the attached Schedules,
Peritus hereby grants to CSC a non-exclusive license to use Peritus trademarks
and service marks in accordance with good trademark and service xxxx practices.
CSC shall comply with any reasonable practices promulgated by Peritus concerning
the use of such marks. In the event that Peritus reasonably determines that CSC
is using such marks in violation of the aforementioned practices, Peritus shall
have the right to terminate the license to use such marks upon thirty days
written notice, if the violation is not cured within the thirty-day notice
period.
5.3 Peritus shall, at its own expense, deposit and maintain a copy of the
source code and documentation for the Licensed Software ("Deposit Materials") in
escrow with Data Securities International, Inc., as Escrow Agent, pursuant to a
Source Code Escrow Agreement in the form of Exhibit A attached hereto. For
purposes of the Source Code Escrow Agreement, this Agreement shall be considered
a License Agreement. In the event of an inconsistency between the Source Code
Escrow Agreement and this Agreement, the terms of this Agreement shall prevail
to the extent of the inconsistency.
5.4 Peritus shall maintain in escrow the latest version of the Licensed
Software and documentation.
5.5 CSC's use of the Deposit Materials shall be subject to the terms and
conditions of this Agreement.
6. PUBLICITY
------------------
Neither party shall issue a press release or make any public announcement of the
terms of this Agreement or the activities hereunder without the prior written
consent of the other party.
7. TERM AND TERMINATION
-----------------------------
7.1 This Agreement shall become effective upon execution from the date
first set forth above and shall continue in full force and effect for a period
of one (1) year unless extended pursuant to the terms hereof.
7.2 If during the first year of this Agreement, CSC shall have paid Peritus
license fees in the amount of at least ************************* Dollars, then
this Agreement will renew automatically for an additional one (1) year term
commencing upon the expiration of the
-4-
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
initial term. If, during the second and subsequent years of this Agreement, CSC
shall have paid Peritus license fees in the amount of at least
********************* Dollars per year, then in each such year this Agreement
will renew automatically for an additional one (1) year term commencing upon the
expiration of the previous term. CSC may cancel automatic renewal and thereby
terminate this Agreement by giving written notice thereof to Peritus no later
than forty-five (45) days prior to the end of the current term.
7.3 CSC may terminate this Agreement at any time upon three (3) months
written notice to Peritus, for any reason or for no reason.
7.4 Either party may terminate this Agreement for breach upon thirty (30)
days written notice in the event that the other party fails to cure the breach
within said thirty (30) days. A failure of CSC to make timely payment of any
amounts owed to Peritus hereunder shall constitute a material breach.
7.5 Either party may, by giving written notice thereof to the other party,
terminate this Agreement as of a date specified in such notice in the event that
the other party (a) terminates or suspends its business; (b) becomes a debtor in
a bankruptcy or insolvency proceeding under federal or state statute; (c)
becomes insolvent or becomes subject to direct control by a trustee, receiver or
similar authority; or (d) is acquired by a competitor of, or acquires a
controlling interest in a competitor of, the party giving notice. In the event
of any such termination, the license granted to CSC hereunder shall remain in
effect as to work under proposals accepted and projects begun during the term
hereof, until the completion of all such work.
7.6 The parties may, in an attached Schedule, agree upon liquidated damages
to be paid by either of them in the event of termination of this Agreement for
breach.
8. WARRANTY; INDEMNITY; LIMITATION OF LIABILITY
-----------------------------------------------------
8.1 Each party warrants that materials furnished by such party hereunder
will not infringe any United States intellectual property rights, including but
not limited to patents, copyrights and trademarks, of any third party. The
furnishing party shall indemnify and defend the other party from and against any
claim that materials furnished hereunder infringe any such intellectual property
right, shall take all reasonable action for settlement or compromise of the
claim or any action based thereon, and shall pay any and all settlements reached
or costs and damages awarded, including reasonable attorney's fees.
-5-
8.2 EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY EXPRESS
OR IMPLIED REPRESENTATIONS OR WARRANTIES INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8.3 Neither party shall be liable hereunder for special, indirect,
consequential or incidental losses or damages of any kind or nature whatsoever,
including but not limited to lost profits, lost savings, or other costs,
charges, penalties, or liquidated damages, regardless of whether arising from
breach of contract, warranty, tort, strict liability or otherwise, even if
advised of the possibility of such loss or damage, or if such loss or damage
could have been reasonably foreseen. A party's liability shall not be so limited
with respect to injuries to persons or damage to tangible property arising out
of the negligence or wilful misconduct of such party or its employees.
9. ASSIGNMENT
-------------------
Neither party may assign its rights or delegate its obligations hereunder
without the prior written consent of the other, which consent shall not be
unreasonably withheld. Any assignment in violation of this provision is void.
10. EMPLOYEE SOLICITATION
------------------------------
Each party agrees that, during the term of this Agreement and for a period of
one hundred eighty (180) days thereafter, each party will not hire any employee
of the other party who has been directly involved in the performance of this
Agreement, without the express written consent of the other party. Additionally,
each party agrees not to contract for the services of any individual who has
been directly involved in the performance of this Agreement as an employee of
the other party, during the term of this Agreement and for a period of one
hundred eighty (180) days thereafter.
11. INDEPENDENT CONTRACTORS; COSTS
---------------------------------------
The parties shall at all times be independent parties. Neither party is an
employee, joint venturer, agent, or partner of the other; neither party is
authorized to assume or create any obligations or liabilities, express or
implied, on behalf of or in the name of the other. The employees, methods,
facilities and equipment of each party shall at all times be under the exclusive
direction and control of that party. Except as otherwise expressly agreed in a
Schedule, each of the parties shall bear its own costs and expenses incurred in
connection with its performance hereunder.
12. DISPUTE RESOLUTION
---------------------------
-6-
The parties shall attempt, in good faith, to resolve any controversy, claim, or
dispute arising out of this Agreement through negotiations. Any dispute shall be
referred promptly to the level of management of each party authorized to resolve
the dispute.
13. FORCE MAJEURE
----------------------
Neither party shall be considered in default in the performance of any
obligation hereunder to the extent that the performance of such obligation is
prevented or delayed by fire, flood, explosion, strike, war, insurrection,
embargo, government requirement, civil or military authority, act of God, or any
other event, occurrence or condition which is not caused, in whole or in part,
by that party, and which is beyond the reasonable control of that party. The
parties shall take all reasonable action to minimize the effects of any such
event, occurrence or condition.
14. SEVERABILITY
---------------------
If any provision of this Agreement is found invalid or unenforceable by a court
of competent jurisdiction, the remainder of this Agreement shall continue in
full force and effect.
15. RESERVATION OF RIGHTS
------------------------------
A delay or failure in enforcing any right or remedy afforded hereunder or by law
shall not prejudice or operate to waive that right or remedy or any other right
or remedy, including any remedy for a failure breach of this Agreement, whether
of a like or different character.
16. ENTIRE AGREEMENT
-------------------------
This Agreement, together with every Schedule executed by the parties,
constitutes the entire agreement of the parties, superseding any and all
previous agreements and understandings whether oral or written. No modification
or waiver of the provisions of this Agreement shall be valid or binding on
either party unless in writing and signed by both parties.
17. HEADINGS
-----------------
The headings used in this Agreement are intended for convenience only. They are
not a part of the written understanding between the parties. They shall not
affect the construction and interpretation of this Agreement.
18. NOTICES
----------------
-7-
Every notice and demand required or permitted under the terms of this Agreement
shall be in writing and shall be sent by certified mail, return receipt
requested, or by other means of delivery requiring a signed receipt, to the
other party's address first set forth above. All notices shall be effective upon
receipt. A party may change its address by giving written notice to the other
party in accordance with this Article. All notices shall be sent to the
following:
TO CSC TO PERITUS
------ ----------
Xxx XxXxxxxx Xxxxx X. Xxxxx
Managing Director Vice President
CSC Consulting, Inc. Peritus Software Services, Inc.
00 Xxxxxx Xxxx 000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
19. GOVERNING LAW
----------------------
This Agreement shall be governed by and construed in accordance with the
domestic laws of the Commonwealth of Massachusetts, excluding its conflicts of
laws principles.
(The remainder of this page is intentionally left blank.)
-8-
IN WITNESS WHEREOF the parties have caused this License and Alliance Agreement
to be executed in counterparts by their authorized representatives as of the
date first set forth above.
PERITUS SOFTWARE SERVICES, CSC CONSULTING, INC.
INC.
/s/ Xxxxx X. Xxxxx /s/ Xxx XxXxxxxx
--------------------------------------- --------------------------------
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
Xxxxx X. Xxxxx Xxx XxXxxxxx
--------------------------------------- --------------------------------
NAME NAME
Vice President Managing Director
--------------------------------------- --------------------------------
TITLE TITLE
--------------------------------------- --------------------------------
DATE DATE
-9-
SCHEDULE NO. 1
--------------
This Schedule is incorporated in and made a part of the License and Alliance
Agreement of CSC and Peritus dated May 1, 1996 (the "Agreement"). All defined
terms used herein shall have the same meanings set forth in the Agreement.
1. Additional Definitions
-------------------------------
1.1 Front End. Software that makes a modification of a target computer
language dialect and embedded calls to other packages so that the language may
be converted into Peritus Intermediate Language and subsequently processed
through the Peritus technologies.
1.2 Mass Change Factory. The Automate:2000 renovation facility including
the hardware, software, methodology, and process used in Y2000 conversions.
1.3 Competency Center. A virtual facility from which an entire Y2000
renovation can be completed. A Competency Center shall be staffed with
individuals competent in the following areas: sales, marketing, global
assessment, identification, correction and verification, testing, and project
management.
1.4 Pilot Renovation. A conversion of a subset of a client's code
(approximately 20,000 to 200,000 lines of software code) to demonstrate the
effectiveness of the Licensed Software.
1.5 Technical Support. Xxxxx 0, 2, or 3 response to user inquiries
regarding the use of Peritus' Automate:2000, AutoEnhancer/2000 and Mass Change
Factory technologies and processes, as specified in Attachment A, which is
incorporated herein and made a part hereof.
2. Activities
-------------------
2.1 Peritus and CSC will establish a unique and specific technical
direction and strategy for Y2000 solutions. Peritus will share with CSC its
current road map for Front End development to ensure that required Front Ends
are prioritized to meet CSC's market needs.
2.2 [Deleted.]
2.3 CSC will develop its Y2000 services to be based upon the Peritus
Automate:2000 technology.
2.4 Peritus and CSC may jointly develop new products and technologies for
Y2000 solutions for their exclusive use under the terms hereof. A development
road map and
-10-
subsequent Schedules will be developed and made a part of this Agreement within
forty-five (45) days of the effective date hereof. Peritus and CSC will meet at
least once in each calendar quarter to update and to agree upon the development
road map, including priorities. Where there is not an agreement on the timing or
prioritization of the road map, Peritus and CSC may, separately or in
conjunction with other entities, develop the initiative(s) in question.
Technologies developed jointly by Peritus and CSC, pursuant to Statements of
Work following the road map, will be available exclusively to Peritus and CSC
for a period of twelve (12) months from general release of specific
functionality unless otherwise provided in the applicable Statement of Work. CSC
shall have the right to use any enhancement of the Peritus technologies
developed by a third party, whenever Peritus has the right to re-license or to
sublicense such enhancement.
2.5 The current Peritus development road map includes Front Ends for PL/1,
Assembler, RPG, and C. Upon the completion by Peritus of white papers and
development strategies for these Front Ends, Peritus will review Front End
strategies with CSC and, at its discretion, may jointly develop and license
these Front Ends with CSC.
2.6 After twelve (12) months from the effective date hereof, both Peritus and
CSC may elect to re-license technologies in which Peritus and CSC have exclusive
rights under Section 2.4 above, pursuant to separate license agreements.
2.7 If a Peritus licensee approaches Peritus with a specific technology need for
Year 2000 outside of the current Peritus-CSC road map, then Peritus shall have
the right to develop new technologies outside of this Agreement. In these cases,
the technologies developed by Peritus shall be made available to CSC no later
than twelve (12) months after development.
2.8 It is the intention of the parties that Peritus and CSC will jointly seek to
exploit new technology opportunities not expressly mentioned herein. Whenever
Peritus is seeking to form a strategic relationship for the development of new
technologies during the term of this Agreement, CSC shall have a right of first
refusal to participate in the relationship. CSC may accept participation in the
relationship by providing written notice within thirty days after receipt of
written notice from Peritus proposing the relationship. Cost and revenue sharing
in connection with such relationship will be based upon each company's
contribution to the development project and will be subject to a separate
agreement of the parties.
2.9 CSC will be the exclusive provider of Year 2000 renovation services to
Peritus, provided that CSC has sufficient resources to meet demand. CSC must
provide sufficient resources to initiate renovations within sixty (60) days of
execution of a service contract and to complete renovation services in a timely
manner.
-11-
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
2.10 Peritus and CSC will review the current Peritus strategy for use of
India-based resources in the delivery of Year 2000 services. India-based
services may be incorporated into a future capacity-and-delivery strategy, by
mutual agreement of the parties.
3. Responsibilities of Peritus
------------------------------------
3.1 Technologies to be furnished by Peritus hereunder include all current and
future versions of the AutoEnhancer/2000, collateral materials and associated
user documentation.
3.2 Peritus shall provide such training in sales, marketing, and technical
support as is available as of the effective date of this Agreement and
thereafter. Peritus shall provide technical training at its facilities in
Billerica, Massachusetts, or at an agreed CSC facility, for up to ***********
CSC marketing and sales resources and up to *********** CSC engineers,
programmers, and analysts, in the understanding and use of Peritus technologies.
The training will include the following, in accordance with Attachment B, which
is incorporated herein and made a part hereof:
(a) Core Technology: Peritus will train CSC in all aspects of
Automate:2000 and AutoEnhancer/2000 including underlying theory and execution
logic, and identification, correction and verification of source code. Peritus
will train CSC in techniques associated with creating and modifying "CLPS" Rules
for identification and correction of source code. Included are the use of pilots
and quick pass analyses as proof of concept strategies. Up to *********** for
CSC technical resources will be provided. Peritus will develop the materials for
these classes with input and agreement from CSC. CSC will ensure that
train-the-trainer resources will be included in these classes allowing them to
deliver independently in the future. The training contemplated by this paragraph
will be completed on or before December 31, 1996.
(b) Mass Change Factory: Process and automation steps inside factory.
User interface process and technology. Use of UNIX-based factory tools and third
party tools.
(c) Sales and Marketing Product Training: Product features and
specifications as well as their associated benefits and differentiation in the
Y2000 marketplace. Up to *********** for CSC marketing and sales resources.
Peritus will develop the materials for this class with input and agreement from
CSC. CSC will ensure that train-the-trainer resources will be included in these
classes allowing CSC to deliver these classes independently in the future.
-12-
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
3.3 The training outlined in Section 3.2 above and in Attachment B shall be
available at Peritus locations or on-site at current or future CSC facilities.
3.4 Peritus will have primary responsibility for the first wave of technical and
training support of CSC personnel. By following a Train-the-Trainer process, the
parties will prepare CSC for, and CSC will assume primary responsibility for,
technical and training support of its personnel. CSC will develop and support
Competency Centers to train its personnel. Peritus will remain available as
needed for ongoing technical and training support of the CSC trainers in
accordance with Attachment B.
3.5 Peritus will provide up to *********** engineers, programmers, and analysts
as dedicated resources in support of the above activities as long as CSC is
maintaining the minimum revenue volumes identified herein. These resources shall
be available to participate in trade shows, executive conferences, and other
marketing events on dates and locations mutually agreed to by both parties. In
addition, these resources shall be available for customer demonstrations and
presentations, pilots, Front End development, training, renovation support,
factory development and support. The resources shall be available remotely for
reasonable periods of time, as required by CSC, to allow for on-site support of
CSC clients.
3.6 Peritus shall participate in a benchmarking pilot, in which the parties
shall attempt to renovate up to two hundred thousand (200,000) lines of software
code, to establish a business case for an automated tool over a manual process.
4. Responsibilities of CSC
--------------------------------
4.1 CSC shall use its best efforts to integrate the Peritus technologies and
processes into a complete offering of Y2000 services. In addition to Peritus
technologies and services, CSC's Y2000 services will include global assessment,
testing, and project management services. CSC will recommend and use the Peritus
technologies exclusively in its Y2000 services offering, except in the event
that a client expressly requests otherwise. CSC may, at any time, include
non-competitive products of a third party in its Y2000 services offering.
4.2 CSC shall provide adequate resources, as required in Attachment B, to be
trained and certified in the Peritus technologies and in the processes for
identification, correction and verification of code renovated for Y2000. In
addition, CSC shall provide adequate
-13-
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
facilities, equipment and software to equip a Mass Change Factory appropriate to
CSC's business requirements. CSC shall use its best efforts to meet Peritus
demand for Y2000 services, in accordance with Peritus's monthly estimates of its
annual volumes.
4.3 CSC will assign personnel certified by Peritus training procedures for the
delivery of all Automate:2000 services.
4.4 CSC will provide project and account management resources and will be
responsible for all client contact in connection with Automate:2000 services.
4.5 CSC hereby designates Xxx XxXxxxxx, of CSC Consulting & Systems Integration,
as CSC's primary contact with Peritus for all Y2000 services to be furnished by
CSC. All divisions of CSC which provide services hereunder shall comply with the
terms of this Agreement. Peritus may directly contact individuals within CSC
other than Xxx XxXxxxxx, but only with his knowledge and assent.
5. Payment
----------------
5.1 The Pricing Schedule attached hereto as Attachment C is incorporated in and
made a part of this Agreement.
5.2 In the event **************************************************************
************************************************, Peritus shall immediately so
notify CSC in writing and ******************************************** pursuant
to terms, conditions and restrictions substantially identical
*********************************.
5.3 CSC will provide Peritus a monthly reconciliation and payment for lines of
software code ("LOC") completed and processed hereunder. Payment shall be due
when the code has finished the correction and verification phases of the Peritus
technologies and is available to the end user for Systems Testing in the
mainframe environment. Peritus shall have the right, at its cost, at reasonable
times and upon reasonable notice, to review CSC's records pertaining to LOC
completed and processed and payments therefor to Peritus, to ensure CSC's
compliance with reporting and payment provisions.
5.4 The parties shall measure LOC by counting each line processed through the
Peritus technologies. The lines are considered completed when they pass from the
Peritus technologies into integration testing. Commented lines are not included.
JCL and copybooks are counted only one time. CSC shall be entitled to a refund
of all payments
-14-
made for completed LOC that fail to perform, as a result of a deficiency in the
Licensed Software, in integration testing or otherwise during the warranty
period.
5.5 For Pilot Renovations, the parties may agree upon pricing which varies from
the formula herein. The agreed pricing shall accommodate the inability otherwise
to make the Pilot Renovation cost-effective due to the small amount of code
renovated and the need for intensive interaction with the end user in such an
effort. Peritus will work with CSC to aggressively price specific opportunities
of strategic importance to CSC, so as to ensure the best opportunity for
business success.
5.6 Each of Peritus and CSC will introduce the other in Y2000 renovation
opportunities. In any instance where either party introduces the other to a
client opportunity (as demonstrable by correspondence of the parties confirming
the introduction), and the client engages the party introduced, but not the
party making the introduction, then the party making the introduction shall be
compensated according to Attachment C.
6. Warranty
-----------------
Peritus warrants that converted and completed LOC shall not fail to perform as a
result of any deficiency in the Licensed Software, for a period of ninety (90)
days after each conversion has entered into production. If CSC is required by a
client to correct any converted and completed lines of code before a Peritus
correction is available, Peritus will refund all license fees paid by CSC for
conversion of the affected code. Defects caused by Licensed Software will be
classified and resolved in an order of priority based on criticality. If Peritus
is unable to resolve a defect in the Licensed Software, it will refund to CSC
the fees paid for the renovation of the LOC that fail to perform as a result of
the defect.
7. Limitation of Liability and Damages
--------------------------------------------
The liability of either party to the other or to any third party for damages due
to defects in Licensed Software shall be limited to amounts paid to such party
for the renovation of the LOC that fail to perform due to such defects.
8. Intellectual Property
------------------------------
8.1 Peritus retains the exclusive right to make modifications to the back-end
engine in the Licensed Software. Any and all Front End enhancements made by
Peritus will be the property of Peritus, and CSC shall have a non-exclusive
license to use such Front End enhancements in connection with its Y2000
services.
-15-
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
8.2 Any and all Front End enhancements made by CSC will be the property of
CSC, and Peritus shall have a non-exclusive license to use, but not to re-
license or sublicense, such Front End enhancements in connection with Y2000
renovations. CSC will use such enhancements in conjunction with Peritus Y2000
technologies only for Y2000 renovation services.
8.3 Each tool developed by either party hereunder and used for connecting
Licensed Software to other products used by CSC in providing Y2000 services will
be owned by the developing party, and the other party shall have a non-exclusive
license to use, but not to re-license or sublicense, each such tool in
connection with Y2000 renovations, without a separate agreement.
9. Use of Name
-------------------
CSC will knowledge the use of Peritus technologies and will refer to
Automate:2000 and AutoEnhancer/2000 as Peritus Technologies or Peritus services
in its presentations, demonstrations, and marketing and sales literature
concerning Y2000 services.
ACKNOWLEDGED AND ACCEPTED BY
PERITUS SOFTWARE SERVICES, CSC CONSULTING, INC.
INC.
/s/ Xxxxx X. Xxxxx /s/ Xxx XxXxxxxx
-------------------------------- -------------------------------
Authorized Signature & Date Authorized Signature & Date
-16-
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
ATTACHMENT A
TO SCHEDULE NO. 1
Product Technical Support
Standard Product Technical Support:
----------------------------------
Standard Product Technical Support will be provided by Peritus to Licensee for
the term of the contract as follows:
Hours of Support: 8:00 am. to 5:00 p.m. Eastern Time
----------------
In the event that there is a defect in, CSC needs technical advice concerning
the installation or the operation of, or CSC desires a modification to, the
Licensed Software, CSC may seek Product Technical Support from Peritus. Peritus
will categorize and prioritize the request for support according to nature of
the request, as determined by the "Definition" of the request in the Request
Table below.
Peritus will then assign, within the "Response Time" associated with the
priority of the request, a technically qualified person to address the concern.
Peritus does not guarantee that a problem or concern that is the subject matter
of a request can be resolved. However, Peritus will make reasonable efforts to
resolve all defects and address CSC's concerns arising from the request.
Notwithstanding the foregoing, Peritus, in its sole discretion, may decide
whether to seek to attempt to resolve or address a request for an enhancement
(i.e., a Priority 4 Request).
Request Table
-------------
Priority Definition Response Time
-------- ---------- -------------
1 ********************** ***********
2 ********************** ***********
3 ********************** ***********
4 ********************** ***********
-17-
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
Peritus will provide update releases to the Licensed Software which may include
some or all of the following: i) defect (bug) fixes, ii) new or modified
functionality, or iii) new Peritus Front Ends. Peritus will also provide release
notes documenting changes.
-18-
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
ATTACHMENT B
TO SCHEDULE NO. 1
Training
Core Training:
*********** class for up to*********** CSC employees. This class will be offered
up to ******* *** times. Maximum of *********** student days.
Factory Training:
*********** class for up to *********** CSC employees. This class will be
offered up to *********** times. Maximum of *********** student days.
Marketing/Product Training:
*********** class for up to *********** CSC employees. This class will be
offered up to *** ***times. Maximum of *********** student days.
Other Training:
Additional training will be available as mutually agreed or as developed and
defined by Peritus (i.e., factory manager HW, SW LAN, configuration, etc.).
These classes will be offered at a *********** discount from Peritus commercial
prices then in effect.
-19-
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
ATTACHMENT C
TO SCHEDULE NO. 1
Pricing and Volumes
Cost Per Line of Code LOC
Open Market
-----------
*********** ***********
*********** ***********
*********** ***********
*********** ***********
* Million Lines of Code
This pricing is for CSC in aggregate per year across all divisions so long as
CSI is recognized as the point. These prices are targets for 1996 and subject to
the following: Productivity measurements - expected is **********************
through the factory.
If actual productivity is lower, then the impact on Peritus pricing will be
reviewed.
-20-
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
Pilots Peritus flat fee per pilot of up to *********************************
------ ***********
Pricing for Peritus use of CSC Factory
Cost Per Line of Code
Peritus Use
Excluding License fee
*********** ***********
*********** ***********
*********** ***********
*********** ***********
Referral Fee *********** **********************
***********
*********** **********************
***********
-21-
EXHIBIT A
SOURCE CODE ESCROW AGREEMENT
This Agreement (the "Agreement") is made as of November 15, 1996 among
Peritus Software Services, Inc., a Massachusetts corporation having its
principal place of business at 000 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000-0000
("Peritus" or "Licensor") and Data Securities International, Inc. ("Escrow
Agent"), with the respective addresses set forth in Exhibit A attached hereto,
---------
and Licensor's customers who become parties to this Agreement pursuant to
Section 16 below ("Licensees").
1. Background. Licensor has licensed or will license the Licensed Program
----------
(as defined below) to each Licensee pursuant to a written software license
agreement (a "License Agreement"). Licensor has agreed to place in escrow the
Source Code (as defined below) for the Licensed Program, to be released to
Licensees upon the occurrence of certain events as hereinafter described.
2. Certain Definitions. As used in this Agreement, the following terms
-------------------
shall have the following respective meanings:
(a) Licensed Program. The computer program(s), consisting of a series of
----------------
instructions or statements in machine readable, object code form only, licensed
to Licensees by Licensor pursuant to License Agreements.
(b) Source Code. The version of the source code used by Licensor to
-----------
generate the Licensed Program, contained on one or more magnetic tapes or other
media, together with a print-out of the source code listing.
(c) Documentation. Explanatory information, whether in machine-readable
-------------
form or otherwise, which would assist a software engineer in understanding the
structure, purpose and operation of the Source Code.
(d) Information. The Source Code and the Documentation, collectively.
-----------
(e) Update Event. The delivery to a Licensee of any new release of the
------------
Licensed Program to which the Licensee is entitled pursuant to the applicable
License Agreement.
(f) Update Information. All information including without limitation
------------------
additional and/or replacement Source Code and Documentation, necessary to bring
the Information in escrow prior to an Update Event into compliance with the
definition of Information contained in Section 2(d) after the occurrence of such
Update Event. The
-22-
term "Information" shall be deemed to include any such Update Information for
the purposes of this Agreement
(g) License Agreement. A License Agreement refers to the applicable
-----------------
agreement between a particular Licensee and the Licensor under which the
Licensee receives a license from Licensor in regard to the Licensed Program. In
order for an agreement to be considered a License Agreement for the purposes of
this Agreement, Peritus and Licensee must agree in writing that a particular
agreement is to be considered a License Agreement.
3. Appointment of Escrow Agent. Escrow Agent is hereby appointed and
---------------------------
accepts appointment to act as escrow agent hereunder.
4. Fees of Escrow Agent.
--------------------
(a) All fees of Escrow Agent in connection with its duties hereunder
shall be paid by and shared equally by all parties who are Licensees at the time
such fees become due or, if there are no Licensees at any such time; by
Licensor.
(b) Escrow Agent's fees for the initial year of service are due in full
within sixty (60) days after the execution of this Agreement. Annual renewal
fees will be due in full upon the receipt of invoice unless otherwise specified
by the invoice. Late payments are subject to interest at the rate of one and
one-half percent per month (18% per annum) from the due date.
(c) Escrow Agent's fees will be as specified in its standard fee
schedule as modified from time to time. Escrow Agent shall notify Licensor and
each Licensee at least ninety (90) days prior to any increase in its fees. For
any service not listed on its standard fee schedule, Escrow Agent shall provide
a price quotation prior to rendering such service.
5. DISCLAIMER OF WARRANTY AND LIABILITY. THE INFORMATION, IF RELEASED
------------------------------------
TO A LICENSEE HEREUNDER, IS BEING PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL. LICENSOR DISCLAIMS ALL
WARRANTIES WITH RESPECT TO THE INFORMATION, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL LICENSOR
BE LIABLE FOR DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING,
BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES,
ARISING OUT OF OR WITH RESPECT TO THIS AGREEMENT OR THE INFORMATION.
6. Deposit of Information into Escrow. Within thirty (30) days after the
----------------------------------
execution of this Agreement by Licensor and Escrow Agent, Licensor shall deliver
to
-23-
Escrow Agent one copy of the Information in one or more sealed packages (a
"Deposit"), each of which shall bc separately labeled and accompanied by a
separate written list of its contents in the form of Exhibit B attached hereto
---------
(an "Exhibit B"). Thereafter, within thirty (30) days after the occurrence of
---------
any Update Event, Licensor shall deliver one copy of the Update information in a
sealed package to Escrow Agent accompanied by an Exhibit B. Each Exhibit B shall
--------- ---------
be signed by Licensor prior to submission to Escrow Agent. Upon the delivery of
any Update Information to Escrow Agent; Licensor may instruct Escrow Agent to
return to it any previously delivered Information (other than the most recent
and one previous versions of the Information) which is no longer necessary to
satisfy Licensor's obligations wider this Agreement.
7. Acceptance and Storage of Information.
-------------------------------------
(a) Upon receipt of any Information hereunder, Escrow Agent shall
visually match the accompanying Exhibit B to the labels on the Deposit. Escrow
---------
Agent shall not be responsible for verifying the contents of the Deposit or
validating the accuracy of Licensor's labeling of the Deposit. If Escrow Agent
determines that there is a discrepancy between the Exhibit B and the labels on
---------
the Deposit, Escrow Agent shall notify Licensor within five (5) days after
receipt thereof, and Licensor shall promptly correct such discrepancy.
Acceptance of the Information shall occur when Escrow Agent determines that the
Exhibit B matches the labels on the Deposit. Upon acceptance, Escrow Agent shall
---------
sign the Exhibit B and mail copies thereof to Licensor and each Licensee.
---------
(b) After acceptance, Escrow Agent shall store and maintain the
Information in such an environment or facility as Escrow Agent determines, in
its discretion, is suitable for the safekeeping of the Information. Escrow Agent
shall not permit any person to have access to the Information other than in
accordance with this Agreement, and shall maintain security measures, in
accordance with reasonable professional standards, to prevent unauthorized
access to the Information. Escrow Agent shall not release the Information except
in accordance with the provisions of this Agreement.
8. Inspection of Information. Each Licensee shall have the right at its
-------------------------
sole expense from time to time during the term of this Agreement, upon
reasonable notice to Escrow Agent and Licensor, to designate a representative to
inspect, test and review the Information in the presence of a representative of
Escrow Agent and a representative of Licensor, if Licensor so chooses, during
normal business hours for the purpose of determining the completeness and
adequacy of the Information. Such representative shall be an independent
accounting or consulting firm, not employed or regularly retained by or
affiliated with such Licensee, as may be reasonably acceptable to Licensor. As a
condition to such inspection, such representative shall execute a
confidentiality agreement in form and substance reasonably acceptable to
Licensor.
-24-
9. Release and Delivery of Information.
-----------------------------------
(a) A Licensee may request in writing that Escrow Agent deliver the
Information to such Licensee upon the occurrence of the following event (a
"Triggering Event"):
(i) If Licensor materially breaches its support and maintenance
obligations for the Licensed Program under any written agreement between
Licensor and such Licensee and such breach remains uncured for ninety (90) days
after delivery of written notice thereof to Licensor.
(ii) If a court of competent jurisdiction declares that Licensor is to
be liquidated or a receiver or similar officer has been appointed to liquidate
Peritus business or assets.
(b) Upon receipt by Escrow Agent of notice from a Licensee of
a Triggering Event, Escrow Agent shall promptly deliver a copy of such notice to
Licensor. Escrow Agent shall, ten (10) days after delivery of such notice to
Licensor, deliver the Information to such Licensee, unless within such ten (10)
day period Licensor shall have delivered to Escrow Agent and such Licensee a
written denial that such Triggering Event has occurred. If Escrow Agent receives
such denial within such ten (10) day period, such Licensee's entitlement to
receive the Information under this Agreement shall be resolved by arbitration
pursuant to Section 15 of this Agreement, and Escrow Agent shall retain
possession of the Information pending the final determination by the Arbitration
Panel, which determination may be relied upon by Escrow Agent without further
inquiry.
10. Possession, Use and Protection of the Information.
-------------------------------------------------
(a) If the Information is released to a Licensee pursuant to
this Agreement, Licensor hereby grants to such Licensee a non-exclusive,
royalty-free, non-assignable license to possess and use the Information solely
for the internal support and maintenance of the Licensed Program. Except as set
forth in Section 10(b), such Licensee shall not disclose, market, license, sell,
distribute, sublicense or in any other manner make the Information available to
third parties. Such Licensee shall not under any circumstances copy. duplicate
or otherwise reproduce any Information except as required for the internal
support and maintenance of the Licensed Program.
(b) Each License acknowledges and agrees that title to the
Information shall remain with Licensor at all times and that the Information
shall remain confidential and proprietary to Licensor. If the Information is
released to a Licensee pursuant to this Agreement the Information shall be
received and held by such Licensee in confidence until it falls into the public
domain without breach of this Agreement by such Licensee. Such Licensee shall
limit use of and access to the Information to such of its employees (or third
parties reasonably acceptable to Licensor) as are directly involved in the
internal support and maintenance of the Licensed Program and who are bound by
-25-
written agreement to preserve the confidentiality thereof. Such Licensee shall
promptly report to Licensor any actual or suspected violation of this Section 10
and shall take all reasonable further steps requested by Licensor to prevent or
remedy any such violation.
(c) If, following the release of the Information to a Licensee,
Licensor subsequently establishes pursuant to Section 15 that the conditions
which constituted a Triggering Event no longer exist, such Licensee shall
immediately cease use of such Information and return such Information (and all
copies thereof) to Escrow Agent together with an Exhibit B. Upon Escrow Agent's
---------
acceptance of such Information in accordance with Section 7(a), such Information
shall be held in escrow in accordance with this Agreement until another
Triggering Event shall have occurred.
11. Termination.
-----------
(a) This Agreement shall continue in effect with respect to a
Licensee until the termination or expiration of the License Agreement between
Licensor and such Licensee unless sooner terminated by the written agreement of
Licensor and such Licensee or for non-payment of Escrow Agent's fees pursuant to
Section 11(b) below. The termination of this Agreement with respect to a
Licensee shall not terminate this Agreement with respect to other Licensees,
except as provided in Section 11(b) below.
(b) This Agreement shall have an initial term of one year,
commencing on the date set forth above in the first sentence of this Agreement
(the "Effective Date"). This Agreement shall automatically bc renewed for
additional one-year periods upon receipt by Escrow Agent of the specified
renewal fees. The initial "Renewal Date" of this Agreement is one year from the
Effective Date and in succeeding years is once year from the most recent Renewal
Date. In the event that the renewal fees are not received within thirty (30)
days prior to the Renewal Date, Escrow Agent shall notify Licensor and each
Licensee that this Agreement will expire on the Renewal Date unless the renewal
fees are paid. If Escrow Agent does not receive the renewal fees by the Renewal
Date, this Agreement shall expire on the Renewal Date without further notice and
without liability of Escrow Agent to the parties to this Agreement.
(c) If this Agreement expires or is otherwise terminated with
respect to a Licensee, all duties and obligations of Escrow Agent to such
Licensee shall terminate, and if this Agreement expires or is otherwise
terminated with respect to all Licensees, all duties and obligations of Escrow
Agent to Licensor and all Licensees shall terminate. If Licensor requests the
return of the Information upon expiration or termination of this Agreement with
respect to all Licensees, Escrow Agent shall return the Information to Licensor
only after Escrow Agent's outstanding invoices and deposit return fees have been
paid. If such fee(s) are not received by Escrow Agent within thirty (30) days
after expiration or termination of this Agreement with respect to all Licensees,
Escrow Agent shall, at its option, destroy or return the Information to
Licensor.
-26-
12. Responsibilities an Liabilities of Escrow Agent. Escrow Agent shall
-----------------------------------------------
not be liable under this Agreement with respect to the condition or contents of
the Information or for any action taken or omitted in compliance with this
Agreement in good faith and in the exercise of Escrow Agent's own good judgment
or in reliance on advice of Escrow Agent's counsel or for any other cause unless
a court of competent jurisdiction finds that Escrow Agent's conduct was
(i)willful misconduct, (ii)fraudulent, (iii)grossly negligent, (iv)in bad faith
or (v)in disregard of or contrary to the terms of this Agreement. Escrow Agent
shall be obligated only for the performance of such duties as are specifically
set forth in this Agreement and may rely and shall be protected in relying on or
remaining from acting on any order or instrument reasonably and actually
believed by it to be genuine and to have been signed or presented by the proper
party or parties. Escrow Agent shall not be responsible for or be required to
enforce any of the terms or conditions of any agreement between Licensor and any
Licensee. Escrow Agent shall not be responsible or liable in any manner
whatsoever for the performance by Licensor or any Licensee of their respective
obligations under this Agreement.
13. Resignation and Discharge; Successor Escrow Agent.
-------------------------------------------------
(a) Escrow Agent may resign at any time, effective on such date
specified in a written notice of resignation delivered to Licensor and each
Licensee at least ninety (90) days prior to such effective date. Escrow Agent
may be discharged at any time, with or without cause by written agreement of
Licensor and a majority in number of Licensees, effective upon receipt of
written notice of such discharge from Licensor. The resignation or discharge of
Escrow Agent shall not affect the right of Escrow Agent to be paid for its
services through the date of resignation or discharge.
(b) In the event of the resignation or discharge of Escrow Agent,
Licensor shall appoint a successor Escrow Agent (who shall be reasonably
acceptable to a majority in number of Licensees), and such successor Escrow
Agent shall assume the rights, powers and responsibilities of Escrow Agent
hereunder upon its written agreement to act as Escrow Agent hereunder and to
become a party hereto.
(c) Escrow Agent's obligations hereunder shall terminate upon the
effective date of its resignation or discharge, except that it shall continue to
hold the Information in accordance with this Agreement until a successor Escrow
Agent is appointed, at which time Escrow Agent shall deliver the Information to
such successor Escrow Agent. If no successor Escrow Agent is appointed within
thirty (30) days after the effective date of such resignation or discharge,
Escrow Agent shall deliver the Information to the Arbitration Panel pursuant to
Section 15, shall give written notice of the same to Licensor and each Licensee
and shall have no further responsibility with respect thereto.
14. Indemnification. Licensor and each Licensee jointly and severally,
---------------
agree to defend, indeninily and hold Escrow Agent harmless against any loss,
liability or
-27-
expense, including attorney's fees, incurred by Escrow Agent as a result of any
action taken or omitted in compliance with this Agreement in good faith and in
the exercise of Escrow Agent's own good judgment or in reliance on advice of
Escrow Agent's counsel or for any other cause unless a court of competent
jurisdiction finds that Escrow Agent's conduct was (i) willful misconduct, (ii)
fraudulent, (iii) grossly negligent, (iv) in bad faith or (v) in disregard of or
contrary to the terms of this Agreement.
15. Arbitration. Any dispute regarding the occurrence or non-occurrence
-----------
of a Triggering Event shall be submitted to arbitration before a panel of
arbitrators selected in accordance with the commercial rules of the American
Arbitration Association (the "Arbitration Panel"). The Arbitration Panel shall
hear evidence and arguments and shall limit its deliberations to a determination
of which party would be more likely to prevail on the merits if the dispute were
submitted to a plenary judicial or arbitration proceeding, it being understood
that the applicable Licensee(s) shall bear the burden of proving by a
preponderance of the evidence that a Triggering Event has occurred. The
Arbitration Panel shall provide Escrow Agent with written Notice thereof. The
arbitration shall bc conducted under the then current Federal Rules of Civil
Procedure with respect to discovery, the then current Federal Rules of Evidence
and the then current Commercial Rules of the American Arbitration Association;
provided, however, any such rules conflict with the provisions of this Section
15, the provisions of this Section 15 shall control. If the Arbitration Panel
determines that a Triggering Event has occurred with respect to a Licensee,
Escrow Agent shall immediately release the Information to such Licensee,
provided that if it is subsequently determined pursuant to a final adjudication
of the dispute that a Triggering Event has not occurred, Licensee shall
immediately cease use of the information, shall return the Information to Escrow
Agent, and shall destroy all other copies of the Information, or any part
thereof, in its possession. If the Arbitration Panel determines that a
Triggering Event has not occurred Escrow Agent shall continue to hold the
Information in accordance with this Agreement. The proceedings of the
Arbitration Panel shall be held, and any determination of the Arbitration Panel
shall be deemed to have been made, in Boston, Massachusetts. All questions of
law shall be decided in accordance with the laws of the Commonwealth of
Massachusetts and of the United States of America.
16. Addition of Licensees. Licensor may, in its sole discretion and
---------------------
without obtaining the consent of Escrow Agent or any Licensee, add its customers
as Licensees under this Agreement Licensor and each such customer so added shall
execute a Counterpart Signature Page to this Agreement substantially in the form
of Exhibit C attached hereto, which shall be promptly delivered to Escrow Agent.
Escrow Agent shall acknowledge receipt of such Counterpart Signature Page by
signing it and returning copies to Licensor and such Licensee, and such Licensee
shall thereafter be deemed a "Licensee" for all purposes of this Agreement.
17. Notices. All notices required or permitted hereunder shall be given
-------
in writing and shall be deemed delivered upon (i) delivery by messenger or
overnight
-28-
courier service or (ii) three (3) days following the date of mailing by
registered or certified mail, postage prepaid, addressed to Licensor or Escrow
Agent at the applicable address Set forth in Exhibit A attached hereto and
---------
addressed to a Licensee at the address set forth on the applicable Counterpart
Signature Page. Any party may change its address by ten (10) days' written
notice given to the other party in the manner set forth in this Section 17.
18. Governing Law. This Agreement is made in and shall be construed in
-------------
accordance with the laws of the Commonwealth of Massachusetts.
19. No Waiver. No delay or omission by any party in exercising any
---------
right under this Agreement shall operate as a waiver of that or any other right.
A waiver or consent given by a party on any one occasion shall be effective only
in that instance and shall not be construed as a bar or waiver of any right on
any other occasion.
20. Severability. In the event that any provision of this Agreement
------------
shall be invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
21. Successors and Assigns. Neither Licensor nor any Licensee may
----------------------
assign this Agreement without the written consent of the other, except that no
such consent shall be required for an assignment in connection with the sale of
all or substantially all of a party's business by merger, sale of stock, sale of
assets or otherwise. Notwithstanding anything to the contrary in the foregoing,
Licensee may not in any case assign this Agreement and its status as a Licensee
to another party if the applicable License Agreement is not and/or cannot be
assigned to the same said party. Escrow Agent may not assign this Agreement
without the written consent of Licensor and a majority in number of Licensees.
Subject to the foregoing, this Agreement shall be binding upon and inure to the
benefit of the parties, their respective executors, administrators-, successors
and assigns.
22. Amendment. This Agreement may be amended or modified only by a
---------
written instrument executed by Escrow Agent, Licensor and a majority in number
of Licensees.
23. Counterparts. This Agreement may be executed in counterparts, each
------------
of which shall be deemed an original, but all of which together shall constitute
but one agreement binding on the parties.
24. Captions. The captions of the sections of this Agreement are for
--------
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
-29-
25. Bankruptcy Code. Peritus acknowledge that this Agreement is subject
---------------
to Section 365(n) of Title ii of the Bankruptcy Code. Peritus acknowledges that
if Peritus as a debtor in Possession or a trustee in bankruptcy in a case under
the Bankruptcy Code rejects the License Agreement or any part thereof any
Licensee may elect to retain its rights under the License Agreement as provided
in Section 365(n) of the Bankruptcy Code provided that such Licensee complies
with Section 365(n)(ii) of the Bankruptcy Code.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
a sealed instrument as of the day and year set forth above.
Peritus Software Services, Inc. Data Securities International, Inc.
[LICENSOR] [ESCROW AGENT]
Signature: Signature:
-------------------------- ---------------------------
By: By:
--------------------------------- ----------------------------------
Title: Title:
------------------------------ -------------------------------
-30-
Exhibit A
---------
DESIGNATED REPRESENTATIVES
--------------------------
Notices to Licensor Invoices should be addressed
should be addressed to: to:
Licensor: Peritus Software Services, Inc. Peritus Software Services, Inc.
Address: 000 Xxxxxxx Xxxx 000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Designated
Representative: Xxxxxx Xxxx Xxxx XxxXxxx
Telephone: (000) 000-0000 Ext. 596 (000) 000-0000 Ext. 268
Invoice inquiries and payments
Deposits and notices to Escrow to Escrow Agent should be
Agent should be addressed to: addressed to:
Escrow Agent: Data Securities International, Inc. Data Securities International, Inc.
Address: 000 Xxxxxxxxxx Xxxxx 0000 Xxxxxxxxxx Xxxxx
Xxxxx 000 Xxxxx 000
Xxx Xxxxx, XX 00000 Xxx Xxxxx, XX 00000
Designated
Representative:
------------------------------------
Telephone (000) 000-0000
-31-
Exhibit B
---------
DESCRIPTION OF DEPOSIT MATERIALS
--------------------------------
Deposit Account Number:
---------------------------
Account Name:
-------------------------------------------
Exhibit B Number:
--------------------------
Licensor, pursuant to a Source Code Escrow Agreement dated
________________, 19__ among Licensor, Licensee(s) and Escrow Agent (as defined
therein), hereby deposits the below described materials into the
above-referenced Deposit Account. The Deposit type is: (check space that
applies)
Initial Supplemental Replacement
----- Deposit ----- Deposit ----- Deposit
If Replacement then destroy Deposit _____ or return Deposit ______
If no Deposit type has been checked, the materials will be deemed to be
an Initial or Supplemental Deposit.
DEPOSIT MATERIALS
Name:_____________________________________ Version:________________
Date:________________________________________ Compiler:________________
Application:_______________________________________________________
Utilities needed:______________________________________________
Special operating instructions:_________________________________
Item Description Media Quantity
---------------- ----- --------
Licensor certifies that the above Accepted:
described materials have been
delivered/sent to Escrow Agent
By: By:
---------------------------------- --------------------------------
-32-
Name: Name:
-------------------------------- ------------------------------
Title: Title:
------------------------------- -----------------------------
For: For:
--------------------------------- -------------------------------
Date: Date:
-------------------------------- ------------------------------
-33-
Exhibit C
---------
COUNTERPART SIGNATURE PAGE TO SOURCE CODE ESCROW AGREEMENT
----------------------------------------------------------
The undersigned hereby agrees to become a party to that certain Source
Code Escrow Agreement dated November 15, 1996 (the "Agreement") among Licensor,
Licensees and Escrow Agent (as such terms are defined therein). From and after
the undersigned's execution and delivery and Licensor's acceptance of this
Counterpart, the undersigned shall be deemed to be a "Licensee" for all purposes
of the Agreement.
------------------------------------ Notices to Licensee should be addressed
Printed Name of Licensee to:
Licensee:
------------------------------------ ----------------------------
Signature of Licensee Address:
-----------------------------
-----------------------------
-----------------------------
By:
---------------------------------- Designated
Title: Representative:
------------------------------- -----------------------
Date: Telephone:
-------------------------------- ----------------------------
Invoices should be
addressed to:
--------------------------------------
--------------------------------------
--------------------------------------
--------------------------------------
Agreed and Accepted: Acknowledged:
Licensor: Peritus Software Escrow Agent: Data Securities
Services, Inc. International, Inc.
By: By:
---------------------------------- -----------------------------------
Title: Title:
------------------------------- --------------------------------
Date: Date:
-------------------------------- ---------------------------------
-34-
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
AMENDMENT TO THE LICENSE AND ALLIANCE AGREEMENT-
AGREEMENT FOR THE PURCHASE OF A SPECIAL INVENTORY PACKAGE
Agreement made as of this 31 day of March, 1997 (the "Amendment"), by and
between Peritus Software Services, Inc., a Massachusetts corporation having its
principal place of business at 000 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000-0000
("Peritus"), and CSC Consulting, Inc. ("LICENSEE"), a Massachusetts corporation,
having its principal place of business at Xxxxxxxxxx Xxxxxx Xxxx, 00 Xxxxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
WHEREAS, Peritus and LICENSEE have previously executed an agreement so
that LICENSEE can market and deliver Peritus' Automate:2000
service; and
WHEREAS, LICENSEE and Peritus desire to modify the
aforementioned agreement.
NOW THEREFORE, in consideration of the following mutual promises contained
herein, the Parties agree in good faith to the following obligations and duties:
Section 1 - Definitions and Incorporated Definition:
1.1: The "SLA" herein shall refer to the agreements entitled
"License and Alliance Agreement" and "Schedule No. 1," both
dated May 1, 1996, and both signed by Peritus and LICENSEE.
The "SLA" shall also be understood to include any agreement
that succeeds or replaces the SLA referred to in the previous
sentence.
1.2: The terminology and definitions set forth in the SLA, if used
in this Amendment shall have the same meaning and
interpretation.
1.3: "Effective Date" herein shall be March 31, 1997.
1.4: An "Inventory Package" herein shall refer to a set amount of
LOC for which LICENSEE will pay the applicable royalty
hereunder.
1.5: "Inventory Package Royalty Fee" herein shall refer to the
applicable royalty fee for an Inventory Package. The Inventory
Package Royalty Fee is non-refundable, regardless of whether
LICENSEE provides the
-35-
Automate:2000(sm) service for the number of LOC for which the
Inventory Package applies.
1.6: "Product Technical Support" herein shall refer to the
technical support provided according to Attachment A to
---------------
Schedule Xx. 0 xx xxx XXX.
-------------------------
Xxxxxxx 0 - Xxxx:
2.1: Notwithstanding Section 7.2 of the SLA, in addition to the
----------------------
other terms of the SLA under which the SLA may be extended,
the SLA and this Amendment may and shall be further extended
to the extent necessary for LICENSEE to deplete the Inventory
Package referred to in Section 3.1 of this Amendment, or until
-----------------------------
April 30, 2000, provided however that any such extension that
results only pursuant to this Section 2.1 shall only be used
-----------
for the purpose of depleting the aforementioned Inventory
Package.
Section 3 - Inventory Package, Royalty Fees, PTA Fees and Payment Terms:
3.1: Pursuant to this Amendment, LICENSEE hereby purchases an
Inventory Package that entitles LICENSEE to provide the
Automate:2000(sm) service for fifty million LOC (50,000,000
LOC), in consideration of which LICENSEE shall pay to Peritus
the applicable Inventory Package Royalty Fee in the amount of
two million, five hundred thousand dollars ($2,500,000 U.S.),
which is due as of the Effective Date and shall be paid
according to the schedule as set forth in Section 3.3 of this
-------------------
Amendment.
---------
3.2: The Inventory Package Royalty Fee shall be paid to Peritus in
twelve equal installments, each installment being due on the
last day of each calendar month, beginning with the first
installment being due as of March 31, 1997. Payment to Peritus
of an installment due to Peritus must be made within 30 days
of receipt of the applicable invoice, such invoice to be
considered valid as of the latter of the date of receipt of
the invoice or the date on which the applicable installment is
due.
Section 4 - General Provisions:
-36-
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
4.1: Except as expressly set forth above, the SLA remains in force
and effect to the same extent to which it was in force and
effect prior to the Effective Date of this Amendment.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by
their duly authorized representatives.
CSC Consulting, Inc. Peritus Software Services, Inc.
(LICENSEE)
By: /s/ Xxx XxXxxxxx By: /s/ Xxxxx X. Xxxxx
---------------------------------- ---------------------------------
Name: Name:
-------------------------------- -------------------------------
Title: Title:
------------------------------- ------------------------------
-37-
AMENDMENT TO THE LICENSE AND ALLIANCE AGREEMENT -
AGREEMENT FOR THE PURCHASE OF A SPECIAL INVENTORY PACKAGE
Agreement made as of this 25th day of June, 1997 by and between Peritus
Software Services, Inc., a Massachusetts corporation having its principal place
of business at 000 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000-0000 ("Peritus"), and CSC
Consulting, Inc. ("LICENSEE"), a Massachusetts Corporation, having its
principal place of business at Xxxxxxxxxx Xxxxxx Xxxx, 00 Xxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000.
WHEREAS, Peritus and LICENSEE have previously executed an Agreement for the
Purchase of a Special Inventory Package dated March 11, 1997.
WHEREAS, LICENSEE and Peritus desire to modify the aforementioned agreement.
NOW THEREFORE, in consideration of the following mutual promises contained
herein, the parties agree in good faith to the following obligations and duties:
SECTION 3.1 is replaced in its entirety with the following:
Pursuant to this amendment, LICENSEE hereby purchases an Inventory Package that
entitles LICENSEE to provide the Automate:2000 service for fifty seven million
five hundred thousand LOC (57,500,000 LOC), in consideration of which LICENSEE
shall pay to Peritus the applicable Inventory Package Royalty Fee in the amount
of two million five hundred thousand dollars ($2,500,000 U.S.), which is due as
of the Effective Date and shall be paid according to the schedule as set forth
in section 3.2 of this agreement.
SECTION 3.2 is replaced in its entirety with the following:
The Inventory Package Royalty Fee shall be paid to Peritus as follows: the first
installment of $208,333 being due on Mach 31, 1997 the second installment of
$208,333 due April 31, 1997, the third installment of $208,333 due May 31, 1997,
and the final installment of $1,875,001 due June 30, 1997. Payment to Peritus
of an installment due to Peritus, must be made within 60 days of the applicable
installment date.
CSC CONSULTING, INC. (LICENSEE) PERITUS SOFTWARE SERVICES, INC.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
_______________________ ______________________
Name: Xxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxx
____________________ ____________________
Title: President Title: Vice President
____________________ __________________
Date: June 25, 1997 Date: June 24, 1997
____________________ ___________________
