10.1
WHEREVER CONFIDENTIAL INFORMATION IS OMITTED HEREIN (SUCH OMISSIONS ARE DENOTED
BY AN ASTERISK), SUCH CONFIDENTIAL INFORMATION HAS BEEN SUBMITTED SEPARATELY TO
THE SECURITIES AND EXCHANGE COMMISSSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT
APPLICATION PRODUCTIVITY STRATEGIES
DEVELOPMENT AND SERVICES AGREEMENT
This Application Productivity Strategies Development and Services
Agreement ("Agreement") made and entered into this 11th day of October, 1996 by
and among META Group, Inc. ("META"), a Delaware corporation with offices at 000
Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx, 00000 and Xxxxx Systems Incorporated
("RSI"), a New York corporation and Xxxxxx Xxxxx ("Principal"), both with
offices at 0 Xxxxxxxxxxxx Xxxx, Xxxxx Xxxxx, Xxx Xxxx, 00000. RSI and Principal
are sometimes referred to herein collectively as "RSI".
W I T N E S S E T H:
--------------------
WHEREAS, RSI and Principal are in the business of and are experts in,
providing software programming productivity analysis and related services to
businesses, including information technology ("IT") vendors and users; and
WHEREAS, Principal is the controlling shareholder and President of RSI; and
WHEREAS, META and RSI wish to enter into an agreement under which RSI is to
develop for META certain products and perform certain services described below;
and
WHEREAS, META will provide certain services and distribution channels
described below; and
WHEREAS, RSI and META will jointly perform certain functions and produce
certain deliverables described below.
NOW, THEREFORE, in consideration of the premises and the terms hereinafter
set forth, the parties, intending to be legally bound, agree as follows:
1. Services. META hereby retains RSI to provide technical services for the
development, implementation and maintenance, on an exclusive basis, of META's
Application Productivity Strategies service ("APS") which shall include without
limitation the delivery to META for use by META's customers of those items
described in Exhibit 1 hereto. META's APS will include the provision of
research, information and consulting services for META customers on an annual
retainer basis. RSI shall provide to META such services through the services of
Principal and others acceptable to META. RSI acknowledges that META lacks
knowledge and expertise sufficient to perform such services for itself and that
META is and will be relying upon the knowledge and expertise of RSI therefor,
which RSI hereby warrants and represents are sufficient to develop and maintain
the APS as provided herein.
2
2. Responsibilities of the Parties. Each of META and RSI shall provide
the deliverables and services described in Exhibit 1 annexed hereto in order to
maximize the profitability of the APS. The parties agree to use their
commercially reasonable best efforts to deliver those items set forth in Exhibit
1 in a timely and professional manner, pursuant to the Milestones and Timing
Schedule annexed hereto as Exhibit 2. Notwithstanding any language to the
contrary contained herein, META shall, in its sole and absolute discretion,
determine how, when, where and whether to market or sell the APS.
3. Documentation. RSI agrees that all documentation to be delivered to
META shall conform with generally accepted standards in the IT industry and be
acceptable to META in its sole and absolute discretion, which acceptance shall
be in writing.
4. Place of Performing Services. The services to be provided by RSI
hereunder shall be performed at RSI's offices or other mutually agreed upon
location. Except for reasonable expenses incurred by RSI arising out of META
requests for services beyond those set forth in Exhibit 1, META shall not be
liable for any travel, living or similar expenses incurred by RSI in connection
with the services to be performed hereunder unless otherwise agreed to in
writing by the parties.
5. Time for Performance of Services. Within ten (10) days after
execution of this Agreement by the parties, RSI shall commence services
hereunder; within ten (10) days thereafter the parties shall agree upon dates
for completion of all phases (set forth herein and on Exhibit 2) and shall
insert such dates on Exhibit 2 and initial each such date. RSI shall complete
all phases of the services to be provided hereunder by the dates to be so set
forth on Exhibit 2. If RSI does not complete a phase by the date for completion
for reasons beyond the control of RSI, it shall have, in the case of only the
first instance of any such failure, up to an additional thirty (30) days to
complete such phase (and the date of completion of such subsequent phase shall
be extended by any such additional time); if RSI fails to meet such extended
dates, META shall have the right, in its sole discretion, to terminate this
Agreement without further obligation or liability to RSI. If RSI does not
complete a phase by the date to be set forth on Exhibit 2 for reasons within the
control of RSI, META shall have the right, in its sole discretion, to terminate
this Agreement without further obligation or liability to RSI. If, within twenty
(20) days after date hereof, the parties do not agree upon dates for completion
of all phases and set forth same on Exhibit 2, META shall have the right, in its
sole discretion, to terminate this Agreement without further obligation or
liability to RSI.
6. Term; Termination. (a) Unless otherwise provided, this Agreement
shall be in effect for a period of five (5) years beginning on the date of
execution hereof; provided, however, that if not terminated pursuant to the
provisions of Section 6(b) hereof, upon expiration of the initial term or any
extension thereof, this Agreement shall be automatically renewed for successive
one (1) year terms unless terminated by either party for any reason or no reason
on at least ninety (90) days notice prior to the end of the initial term or any
renewal term.
(b) This Agreement may be unilaterally terminated as follows:
(i) A party (the "Terminating Party") shall have the
3
right to terminate this Agreement due to the other
party's (the "Non-terminating Party") breach of any
obligation incurred hereunder, which breach has not
been cured by the Non-terminating Party thirty (30)
days following receipt by such Non-terminating Party
of written notice of such breach;
(ii) META shall be free to terminate this Agreement, upon
thirty (30) days notice to RSI, in the event the APS
products or services become the subject of a bona
fide infringement or similar claim;
(iii) META shall be free to terminate this Agreement, upon
fifteen (15) days written notice if RSI fails to
develop acceptable, commercially viable deliverables
within the dates set forth in Exhibit 2.
(c) Upon termination or expiration of this Agreement for any reason the
following will apply:
(i) Subject to Section 13, each party shall immediately
return to the other party all originals and copies in
its possession of all documents and other tangible
media containing, embodying or otherwise
incorporating the Disclosing Party's Confidential
Information (as such terms are defined in Section 11
hereof).
(ii) Subject to Section 13, each party shall cease all use
of the other party's Confidential Information.
(iii) Subject to Section 14, each party shall be free to
use the jointly developed Inventions (as such term is
defined in Section 13 hereof).
(iv) The parties shall continue to split reduced Royalties
on APS goods or services sold as described in Section
7 for the three (3) year period following termination
or expiration; provided however, that if this
Agreement is terminated by META pursuant to Section
6(b)(i), (ii) and/or (iii) hereof, or RSI terminates
this Agreement pursuant to Sections 6(a) or 18, all
Royalties payable to RSI shall immediately cease upon
the effective date of termination; provided further,
that if RSI terminates this Agreement pursuant to
Section 6(b)(i), (ii) and/or (iii) or META terminates
this Agreement pursuant to Sections 6(a) or 18, then
RSI's Royalty shall be * *
* for such
three (3) year period.
(v) Termination shall not affect any rights of clients to
use the APS goods or services previously sold.
(vi) Each party's obligations set forth in this Agreement
or any schedule or exhibit hereto shall cease except
for those obligations in Sections 11, 12, 13, 14, 15
and 17.
(vii) To the extent not earned, RSI shall immediately
return the Advance Royalty (as such term is defined
in Section 7(b).
4
(d) Neither party will be liable to the other for damages of any kind,
including incidental or consequential damages, because of the termination of
this Agreement in accordance with its terms or the failure to renew this
Agreement for any subsequent period. Except as expressly provided in this
Agreement, RSI waives any right it may have to receive any compensation or
reparations on termination of this Agreement under any law or otherwise. No
party will be liable to the other because of termination of this Agreement for
reimbursement or damages for the loss of goodwill, prospective profits or
anticipated income, or on account of any expenditures or commitments made by
either party or for any other reason whatsoever based upon or arising out of
such termination.
7. Royalty Allocations; Royalty Advance. (a) During the term hereof,
META shall determine in its sole discretion the fees to be charged to end users
of the APS. For all amounts billed by META, net of all credits and adjustments,
in respect of sales of the APS during the term of this Agreement, the parties
shall each receive as their sole compensation under this Agreement a royalty
(the "Royalty") allocated and distributed in accordance with the following
percentages: * * *.
Royalties, if any, shall be distributed monthly, within sixty (60) days
of the end of each calendar month commencing with the first complete calendar
month following the launch of the APS. The above Royalty presumes that the APS
annual retainer services and benchmarking products and services are "bundled";
that is, they are marketed, sold and billed as a single item. To the extent META
determines to unbundle some or all of the APS products or services, the parties
shall negotiate in good faith a new Royalty allocation that takes into account
the relative contribution/burden of the party rendering the particular
portion(s) of the unbundled APS products and services.
(b) * *
*.
(c) Principal agrees that he will be available on a scheduled basis as
a consultant on additional consulting projects as requested by META from time to
time. Principal's current rate is * * for client-billable services. Principal's
rate is subject to annual review and increase based on the parties' mutual
agreement.
8. Equipment, Materials and Support. RSI agrees that all compensation
to be paid hereunder shall be inclusive of all equipment, materials, support
services and other expenses necessary or desirable in connection with the
services.
9. RSI Personnel; Proficiency. Principal will act as project manager
and be primarily responsible for performance of the services contemplated by
this Agreement. All personnel and any additional personnel who may be assigned
by RSI to perform services hereunder shall be subject to prior approval by META.
All such personnel shall be proficient in the services required of them and
shall be subject to removal from the assignment by META at any time in the sole
and absolute discretion of META.
10. RSI Personnel Conduct. In the event any RSI personnel providing
services to META conducts himself or herself in a disruptive or other fashion
unacceptable to META, META shall have the right, if RSI is unable to provide
alternative qualified personnel reasonably acceptable to META, to terminate this
Agreement. 5
11. Confidential Information. For purposes of this Agreement,
"Confidential Information" shall mean any information or material proprietary to
a party or its affiliates or designated as Confidential Information by a party
and not generally known by persons not employed or retained by such party (the
"Disclosing Party"), which the other party ("Receiving Party") or its officers,
directors, employees, contractors or other agents obtain knowledge of or access
to as a result of services to be provided hereunder or otherwise, including
without limitation information conceived, originated, discovered or developed in
whole or in part by any of such persons. Confidential Information includes, but
is not limited to, the following forms of information and other information of a
similar nature (whether or not reduced to writing): databases, discoveries,
inventions, ideas, concepts, designs, drawings, specifications, algorithms,
models, methods, techniques, computer flow charts and programs, improvements,
data, documentation, diagrams, research, developments, processes, procedures,
know-how, show-how, trade secrets, marketing techniques and materials, plans,
customer names, subscriber lists, files and other information or private matter
related to the Disclosing Party's sales, past and prospective customers,
including cost data, pricing, financial information, organization and charts,
employees or business. Confidential Information also includes any information
which the Disclosing Party treats, or agrees to treat, as proprietary or have
designated as Confidential Information.
12. Confidentiality. All Confidential Information that a Receiving
Party observes or comes into contact with shall be treated as strictly
confidential and held in trust solely for the benefit and use of the Disclosing
Party and shall not be directly or indirectly disclosed to any other person
without the prior written consent of the Disclosing Party. Prior to performing
any services hereunder or obtaining access to any Confidential Information, each
and every employee and agent of the Receiving Party shall execute multiple
copies of a confidentiality agreement in the form reasonably approved by both
parties and deliver executed copies of same to META and RSI. Each party shall
take reasonable steps and use best efforts to ensure compliance by its employees
and agents with such confidentiality agreement. Receiving Party and its
employees and agents shall turn over to the Disclosing Party all originals and
copies of materials containing Confidential Information in their possession,
custody or control upon request by the Disclosing Party or upon termination of
the Receiving Party's relationship with the Disclosing Party hereunder.
13. Inventions, Etc. (a) Any and all inventions, improvements,
discoveries or developments, including computer software, or other ideas
conceived, created, developed, made by any of RSI and its employees or agents in
whole or in part in connection with the services to be provided hereunder or the
APS that relate to META's APS business, or are made using any of META's
equipment, facilities, materials, labor, money, time or other resource or result
from any services performed hereunder (collectively, "Inventions," and singly,
an "Invention"), shall belong jointly to META and RSI and shall be treated as
Confidential Information hereunder. RSI agrees that it and its employees and
agents shall communicate promptly to META any and all Inventions. RSI hereby
assigns, transfers and gives to META an undivided one-half interest in and to
its entire right, title and interest in and to the Inventions, including all
rights therein arising under applicable copyright laws (including the exclusive
rights of reproduction, distribution, preparation of derivative works,
performance and display), all rights therein arising under applicable patent
laws (including all patents and patent applications therein), all so-called
moral rights (including the right to edit, modify, alter or destroy, combine the
6
Inventions with other works or otherwise deal with Inventions), all other
exclusionary and/or proprietary rights, and any renewals and extensions
associated therewith, as each of the foregoing may be secured under the now or
hereafter in force and effect in the United States of America or any other
country or countries.
(b) Notwithstanding any language to the contrary contained in this
Agreement, upon termination of this Agreement by META pursuant to Section
6(b)(i), (ii) and/or (iii), or by RSI pursuant to Sections 6(b) or 18, META
shall have, and RSI hereby grants to META a perpetual, irrevocable right and
license to use, copy, distribute, license, sell and create derivative works of,
all of the data, databases, methods, methodologies, technologies included in
RSI's Confidential Information in consideration for META paying to RSI the
Royalty described in Section 6(c)(iv) above.
14. Covenant Not to Compete. (a) RSI agrees and covenants that neither
RSI nor its affiliates (including its Principal) shall, without the prior
written consent of META, directly or indirectly, anywhere within the United
States or any foreign country in which META does business for a period from the
date hereof until one (1) year following termination of this Agreement for any
reason: (1) team, acquire, finance, assist, support, or become associated as an
employee, distributor, representative, agent, partner, shareholder, coventurer,
landlord, supplier, consultant to or developer for, or otherwise, with a
business that directly competes with META, including any business which is
engaged in providing syndicated IT or retainer IT research, IT benchmarking or
IT outsourcing consulting, including without limitation, Gartner Group, GIGA
Group, Xxxxxxxxx Research, Compass, Technology Partners, Inc. (TPI) and
Technology & Business Integrators (TBI) (any such business is hereinafter
referred to as a "Competitive Business"); (2) for the purpose of conducting or
engaging in any Competitive Business, call upon, solicit, advise or otherwise
do, or attempt to do business with any suppliers, customers or accounts of META
or take away or interfere or attempt to interfere with any customer, trade,
business or patronage of META; or (3) interfere with or attempt to interfere
with or hire any officers, employees, representatives or agents of META, or any
of their subsidiaries of affiliates, or induce or attempt to induce any of them
to leave the employ of META or any of their subsidiaries or affiliates, or
violate the terms of their contract with any of them. META and RSI intend that
the covenants of this paragraph shall be deemed to be a series of separate
covenants, one for each county of each and every state, territory or
jurisdiction of the United States and one for each month of the period specified
above. If, in any judicial proceeding, a court shall refuse to enforce any of
such covenants, then such unenforceable covenants shall be deemed eliminated
from the provisions hereof for the purpose of such proceedings to the extent
necessary to permit the remaining separate covenants to be enforced in such
proceedings. Notwithstanding the foregoing, the following companies are excluded
from the definition of "Competitive Business": * * and nothing will preclude RSI
from engaging independently in the business of providing IT benchmarking or IT
outsourcing consulting or from engaging independently or with others in other
than a Competitive Business.
(b) RSI represents, warrants and covenants that RSI is subject to
service of process in the State of Connecticut and that RSI will remain so
subject so long as this Agreement is in effect. If for any reason RSI should not
be so subject, RSI hereby designates and appoints, without power or revocation,
the Secretary of the State of Connecticut as RSI's agent upon whom may be served
all process, pleadings, notices or other papers which may be served upon it as a
result of any of its obligations under this Agreement.
7
(c) RSI agrees that the execution of this Agreement and performance of
its obligations hereunder shall be deemed to have a Connecticut situs, and RSI
shall be subject to the personal jurisdiction of the courts of the State of
Connecticut with respect to any action the META, its successors or assigns may
commence hereunder. Accordingly, RSI hereby specifically and irrevocably (a)
agrees that any suit, action or other legal proceedings arising out of this
Agreement may be brought in the courts of record of the State of Connecticut or
the courts of the United States located in such state; (b) consents to the
jurisdiction of each such court in any such suit, action or proceeding; and (c)
waives any objection which RSI may have to the laying of venue of any such suit,
action or proceeding in any of such courts. For such time as any obligation
under this Agreement or any liabilities remain outstanding, RSI's agent
designated in this paragraph shall accept and acknowledge service on RSI's
behalf of any and all process in any such suit, action or proceeding brought in
any such court. RSI agrees and consents that any such services of process upon
such agent and written notice of such service to RSI by registered mail shall be
valid personal service upon RSI and that any such service of process shall be of
the same force and validity as if service were made upon RSI according to the
laws governing the validity and requirements of such service in such state and
waives all claims of error by reason of any such service.
15. Injunctive Relief. Because of the unique nature of Confidential
Information and Inventions, each party understands and agrees that the other
party will suffer irreparable harm in the event any party breaches or otherwise
fails to comply with the provisions of this Agreement and that monetary damages
will be inadequate to compensate the nonbreaching party for any such breach.
Accordingly, each party agrees that the nonbreaching party will, in addition to
any other remedies available to them at law or in equity, be entitled to
preliminary and permanent injunctive relief to enforce this Agreement.
16. No Conflicting Obligations. RSI warrants and represents that it is
not now under obligation to any other person, and has no interest, that is
inconsistent or in conflict with this Agreement or would prevent, limit or
impair in any way the performance by RSI of any of the terms of this Agreement
or the services contemplated hereby. RSI further warrants and represents that it
has not brought to and will not bring or use in the performance of its services
hereunder any proprietary or confidential information (whether or not in
writing) of any other person or entity.
17. Indemnification. (a) RSI hereby agrees to indemnify and hold META
harmless from and against, and to reimburse META regarding, any and all claims,
obligations, liabilities, damages, losses, actions, suits, disbursements, costs
and expenses, including without limitation reasonable attorneys' and expert
witnesses' fees and expenses, suffered or incurred by META as a result of the
(i) willful misconduct, negligence, human error, act or omission of RSI or any
of its employees or agents in the performance or failure to perform the services
contemplated hereby, (ii) breach or inaccuracy of or in any statement,
representation or warranty of RSI contained in this Agreement or any schedule,
exhibit, document or other attachment delivered pursuant hereto or as part of
the services contemplated hereby, (iii) failure of RSI to perform any agreement
8
or covenant required by this Agreement to be performed by RSI, and (iv) alleged
or actual infringement of any copyright, patent or other intellectual property
right arising from or relating to the services contemplated hereby.
(b) RSI hereby agrees to defend and/or handle at its own cost and
expense any claim or action against META, its subsidiaries and/or affiliated
companies, for actual or alleged infringement of any patent, copyright or other
property right (including, but not limited to, misappropriation of trade
secrets) based on any database, software program, service and/or other materials
furnished to META by RSI or used by RSI pursuant to the terms of this Agreement
or the use thereof by META.
(c) RSI agrees to give to META, in reasonable detail, prompt written
notice of any threat, warning, or notice of any such claim or action against RSI
which could have an adverse impact on META's or RSI's use of said database,
software program, service and/or materials.
(d) In addition to META's other rights and RSI's obligations pursuant
to this paragraph, RSI agrees, should META's use of any database, software
program and/or other material furnished to META by RSI, be enjoined by any
court, to promptly obtain, at no expense to META, the right to continue to use
the items so enjoined or, at no expense to META, provide META promptly with
substitute items (which supply of such items will not violate any third party's
rights), that the qualitatively and functionally at least the equal of the
enjoined products and reasonably satisfy META's needs to the same extent as the
enjoined product.
18. Unilateral Termination Right. In addition to the rights of the
parties to terminate this Agreement set forth in Section 6 above, after January
1, 1998, either party shall have the unilateral right to terminate this
Agreement, in its sole discretion and upon no less than thirty (30) days prior
notice to the other party, at any time for any other reason or no reason. In the
event META exercises such unilateral termination right, META shall pay to RSI
the aggregate Royalties and reimbursable expenses to the date of such
termination, subject to any claims or set offs META may have (including
recoupment of any unearned Advance Royalty).
19. Independent Contractor. The parties to this Agreement are
independent contractors and nothing herein shall be construed to place them in
the relationship of partners, joint venturers, or principal and agent. RSI shall
not have the power to bind or obligate META, nor shall META have the power to
bind or obligate RSI; no party shall hold itself out as having any such
authority. Personnel supplied by RSI hereunder are not META's personnel or
agents, and RSI assumes full responsibility for its acts. RSI shall be solely
responsible for the payment of compensation of RSI employees assigned to perform
services hereunder and such employees shall be informed that they are not
entitled to the provision of any META employee benefits. META shall not be
responsible for payment of workers' compensation, disability benefits,
unemployment insurance or for withholding income taxes and social security for
any RSI employee, but such responsibility shall be that of RSI. In the event
that the Internal Revenue Service, any state or local government agency or any
other applicable entity determines that the personnel provided by RSI are
employees of META for the purpose of withholding tax liability, RSI agrees to
indemnify META against and release META from all liabilities, costs, and
expenses (including, but not limited to, attorneys' fees) associated with the
defense of such claim. 9
20. Insurance. While RSI provide services to META hereunder, RSI shall
maintain general liability insurance in the amount of $1,000,000 providing
coverage to RSI and META as named insureds against liability for bodily injury,
death or property damage. RSI, at RSI's expense, shall obtain from and, while
this Agreement is in effect, maintain with, companies acceptable to META, the
following :
(i) comprehensive general liability insurance, naming META as an
additional insured, for bodily injury and property damage with
a minimum combined single limit of one million dollars
($1,000,000.00) per occurrence; and
(ii) to the extent RSI has employees other than Principal, worker's
compensation insurance, in statutory amounts, including
employer's liability insurance with a minimum limit of one
hundred thousand dollars ($100,000.00).
RSI's insurance shall be deemed to be primary. RSI, at its expense may
obtain and maintain such insurance in addition to that described in clauses (i)
and (ii) of this paragraph as RSI deems necessary or advisable. RSI shall not be
deemed to be relieved of any liability or responsibility because of the fact
that it maintains (or does not maintain) insurance. Before RSI begins to perform
the services described herein, RSI shall cause its insurance carriers to certify
in writing to META that the insurance described in this paragraph: (a) are in
force and (b) may not be canceled or substantially changed unless such carriers
notify META thereof at least thirty (30) days in advance In the event that, at
any time, META asks RSI to do so, RSI shall permit META to examine the originals
of the policies that relate to the insurance described in this paragraph.
In the event that RSI decides to use personnel other than its own
personnel to perform, or help RSI perform, the services, RSI shall arrange to
have such personnel, or the entities for which such personnel work, provide to
RSI, before such personnel begins to work, evidence of the same fidelity and
insurance coverage that RSI must obtain and maintain as described in the first
paragraph of this Paragraph 20, subject to the same terms and conditions
contained in such paragraph.
RSI shall advise META of all damages to property of META or of other
entities, and of all injuries to persons, of which RSI may become aware in
connection with its performing the services and its other obligations pursuant
to this Agreement and shall do so promptly after it becomes so aware. RSI, at
its expense, shall obtain, and, while this Agreement is in effect, maintain,
insurance, in commercially reasonable amounts, that covers the theft, loss or
destruction of the equipment, tools and supplies that RSI uses to perform the
services and its other obligations pursuant to this Agreement.
21. Notice. All notices hereunder shall be in writing and be deemed
given when delivered personally or on the fifth business day after being mailed,
postage prepaid, by registered or certified mail, return receipt requested, to
the appropriate party at its address first above written (or at such other
address for such party as shall be specified by notice in fact delivered).
22. Survival of Representations, Warranties, Covenants and Agreements.
The representations, warranties, covenants, and agreements contained in this
10
Agreement or in any schedule, exhibit or other document delivered pursuant
hereto shall survive and continue in full force and effect after any
investigation made at any time by or on behalf of any party hereto or after
completion of the services contemplated hereby or both.
23. Severability. The parties intend that the terms of this Agreement
shall be enforced to the greatest extent permitted by applicable law. If, for
any reason whatsoever, any one or more of the provisions of this Agreement shall
be held to be inoperative, unenforceable or invalid by a court of competent
jurisdiction in a particular case, such holding shall not render such provision,
in any other case, or render any of the other provisions of this Agreement,
inoperative, unenforceable or invalid.
24. Headings. The paragraph headings in this Agreement are intended
solely for convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement.
25. Assignment; Benefit. This Agreement may not be assigned by any
party without the prior written consent of the other parties, except that META
may assign this Agreement in connection with a merger, consolidation or sale of
all or substantially all of its assets. This Agreement shall be binding upon and
insure to the benefit of the successors and permitted assigns of the parties.
Nothing in this Agreement is intended to confer upon any person, other than the
META and RSI and its successors and permitted assigns, any rights or remedies
under or by reason of this Agreement.
26. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement.
27. Entire Agreement; Modification. This Agreement, including all
schedules, exhibits and other attachments hereto, sets forth the entire
agreement among the parties regarding the subject matter hereof. Any and all
prior or other agreements relating hereto are merged herein. The terms of this
Agreement may not be amended, waived, rescinded, terminated or otherwise
modified except by a writing signed by a duly authorized representative of the
party, or the party himself, to be so bound. A party may waive in writing
compliance by another party with any of the terms of this Agreement (except such
as may be imposed by law); no such waiver, however, shall be a waiver of any
other matter or a continuing waiver.
28. Governing Law. This Agreement shall be governed by the laws of the
State of Connecticut, without regard to its conflicts of laws. Any dispute shall
be resolved in the state or federal court for Fairfield County, Connecticut.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the dates set forth below.
META: RSI:
META Group, Inc. Xxxxx Systems Incorporated
11
By /s/ Xxxx Xxxxxxx By /s/ Xxxxxx Xxxxx
------------------------ ----------------------
Xxxx Xxxxxxx Xxxxxx Xxxxx
Title President and CEO Title President
----------------- -------------------
Date October 11, 1996 Date October 11, 1996
Principal:
/s/ Xxxxxx Xxxxx
--------------------------------
Xxxxxx Xxxxx, Individually
Date October 11, 1996
12
EXHIBIT I
---------
RSI will:
maintain benchmark database and provide unlimited access for ad hoc data
queries for client inquiries and consulting
conduct all APS benchmarks
produce APS Benchmark Results Report for each client
produce Annual Worldwide Benchmark Report
provide additional support to META's APS staff for handling client inquiries
provide client telephone support of data collection process
META Group will:
provide sales & marketing
provide META sales support
produce marketing and sales collateral with support from RSI (particularly
with respect to the benchmarking portion of APS)
handle all client inquiries
distribute and collect data collection instruments
provide production support and mailing of all research deliverables
conduct initial half day benchmark workshop for clients
RSI and META APS staff will jointly:
maintain currency of data collection instruments and questionnaires (RSI
xxxx xxxxxxxx this effort and be primarily responsible)
define and create regular research reports within three months of the APS
service launch (META xxxx xxxxxxxx this effort and be primarily responsible)
Deliverables:
Support - By RSI: Annual Application Productivity Benchmarks; By META:
Telephone Consultation (Inquiries and Ad-hoc data queries); By META:
Annual Conference, Data Collection Support (additional fee on contract basis
for services beyond minimum required, META can perform directly oroutsource)
Written - By RSI: Annual Customized Application Productivity Benchmark
Results Report, Annual Worldwide Benchmark Report; By META: META Fax,
some set of monthly written reports to be specified by META from time
to time and for which RSI will collaborate and contribute
Data Collection questionnaire and reports to be provided by RSI subject to
review, expansion and modification from time to time as META and RSI may agree
1) Work-Profile metrics
Maintenance vs. development
Maintenance drill-down
Development lifecycle drill-down by industry and cross-industry
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2) Portfolio Support Characteristics (support rates and language
distribution)
3) Development Productivity
lines of code
function points
cycle times
per employee or project
4) Quality (post-release defect rates) (can also include quality of systems
review)
5) Software Tool for conducting Carnegie Mellon University software
process assessment
6) Best Practices inventory (review of tools, techniques,
and organizational infrastructure)
7) Staff Profile - % of staff by:
job title
training level
degrees
compensation
8) Budget/Spending Patterns - Overall spending and drill down, also expected
change
9) Organizational Priorities - Where overall IT and development
priorities are focused
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EXHIBIT 2
Milestones and Timing
Generally: as soon as possible, but not later than three (3)
months after the commencement of a client's
subscription for APS, META will conduct an on-site
benchmarking workshop and initiate data collection.
From the time at which client data has been
collected, RSI will finalize the benchmarking and
produce an APS report for such client as soon as
possible but not more than one (1) month of RSI's
receipt after all or substantially all of such
client's data.
APS Service Launch: 1/1/97
Client Inquiries: To be acted on by META within 48 hours,
provided that to the extent META requires the
input/services of RSI, RSI will reasonably
cooperate and use its best efforts to ensure META's
timely response.
APS Annual
Conference: Second Half of calendar 1997
Conference Planning
Timetable: [To be supplied by BD and appended]
