EXHIBIT 10.25
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
MASTER LICENSE AGREEMENT
------------------------
This Master License Agreement ("Agreement") is made and entered into as of the
21st of October 1996, by and between Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, a Delaware corporation, having a principal place of business at
Xxxxxxx Xxxxx World Headquarters North Tower, World Financial Center, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Customer") and Peritus Software Services,
Inc., a Delaware corporation, having a principal place of business at 000
Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Licensor").
W I T N E S S E T H
- - - - - - - - - -
That, for and in consideration of the mutual promises and covenants
hereinafter contained, the parties hereto agree as follows:
ARTICLE 1 - GRANT AND SCOPE OF LICENSE
--------------------------------------
1.1 Licensor hereby grants to Customer a non-exclusive, perpetual license to
use those software products and related documentation ("Licensed Products")
described on each schedule executed by Licensor and Customer substantially in
the form of Exhibit 1 hereto ("Schedule"), commencing upon the delivery to
---------
Customer of such Licensed Products and continuing thereafter until terminated in
accordance with the provisions of the applicable Schedule.
l.2 Each Schedule, when executed by an authorized representative of both
parties, shall constitute a separate agreement and except for any provisions
herein which are specifically excluded or modified in such Schedule, each such
Schedule shall incorporate therein all of the terms and conditions of this
Agreement. Each Schedule shall be consecutively numbered to facilitate
identification and shall include a description of the Licensed Products covered
thereunder, the standard published specifications together with other mutually
agreed to specifications for the Licensed Products ("Specifications"), the site
where the server computer is installed ("Installation Site"), the date the
Licensed Products are to arrive at the Installation Site ("Scheduled Delivery
Date"), the name of the person to whom the Licensed Products are to be shipped
("Deliver To"), the applicable license fee ("License Fee"), the annual
maintenance fee ("Annual Maintenance Fee"), the name of the person to whom the
invoices for the Licensed Products should be sent ("Invoice To"), the nature and
scope of the licenses granted ("Type of License") in accordance with Sections
1.2.1 through 1.2.6 (as applicable) and such other terms and conditions as the
parties may wish to
1
include. In the event of any conflict between the terms of this Agreement and
the terms of any Schedule, the terms of such Schedule shall govern. License
options may be described in Schedules in accordance with the following:
1.2.1 Server License - Licensed Products provided under this option may
be installed on and processed by the number of Server computers
installed at the Installation Site indicated on the Schedule. As used
herein "Server" computer shall mean a data station that provides
facilities to other stations in a computer network.
1.2.2 Client License - Licensed Products provided under this option may
be installed on and processed by the number of workstation and/or
personal computers ("Clients") indicated on the Schedule, regardless of
their location, which have electronic access to the Server computer
located at the Installation Site indicated on the Schedule.
1.2.3 Concurrent User License - Licensed Products provided under this
option may be installed on and processed by the Server computer located
at the Installation Site indicated on the Schedule, and may be installed
on and simultaneously processed by the number of workstation and/or
personal computers ("Concurrent Users") indicated on the Schedule,
regardless of their location, which have electronic access to the Server
computer located at the Installation Site indicated on the Schedule.
1.2.4 End User License - Licensed Products provided under this option
may be installed on and processed by the Server computer located at the
Installation Site indicated on the Schedule, and may be installed on and
processed by the number of workstation and/or personal computers ("End
Users") indicated on the Schedule, regardless of their location, which
have electronic access to the Server computer located at the
Installation Site indicated on the Schedule.
1.2.5 Workstation License - Licensed Products provided under this option
may be installed on and processed by the number of workstation and/or
personal computers ("Workstations") indicated on the Schedule,
regardless of their location.
1.2.6 Enterprise License - Licensed Products provided under this option
may be used by Customer without limitation as to the number or location
of Server, workstation and/or personal computers the Licensed Products
may be installed on or processed by.
1.3 Customer, its parent company or any of its or their subsidiary or
affiliated companies, may execute Schedules in accordance with the terms and
conditions of
2
this Agreement. In such event, any such entity shall be considered the
"Customer" as such term is used herein and shall be subject to all of the terms
and conditions of this Agreement, except as expressly provided in the Schedule.
Any such Schedule shall be deemed to be a two-party agreement between Licensor
on the one hand and the Customer entity on the other hand; provided that any
discount applicable to Customer shall apply to such Schedule and such Schedule
shall be counted toward the calculation of any discount.
1.4 Customer may make additional copies of each of the Licensed Products for
use at the applicable Installation Site and shall be entitled to keep copies of
the Licensed Products off Customer's premises for purposes of safekeeping,
without payment of an additional license fee therefor. Customer may, at any time
upon written notice to Licensor and at no charge, transfer any license to use
the Licensed Products to any other Customer site and/or computer, or to a
computer belonging to a third party (including without limitation, third party
service bureau vendors who may process Customer's business) with whom the
Customer has contracted to obtain service if said party agrees in writing to
comply with the terms of this Agreement and restrict the use of the Licensed
Products to Customer. Customer may, at no charge and without notice, use any
Licensed Product at another site and/or computer on a temporary basis for the
purposes of program testing and emergency backup and may provide the Licensed
Products to a third party who has been retained by Customer to load the Licensed
Products onto Customer's computing equipment at Customer's site or such third
party's site.
1.4.1 Customer may, without notice and subject only to any express
restrictions in the applicable Schedule as to the number of users
authorized to use the Licensed Products, install and process the Licensed
Products on alternative workstations, personal or portable computers at any
time the Licensed Products are not being used on the workstation and/or
personal computer on which the Licensed Products would normally reside.
1.4.2 With respect to any license that restricts the use of the Licensed
Products to a particular Installation Site, if the workload for which such
Licensed Products are used is transferred to another Installation Site, the
Customer may use the Licensed Products at the original and new Installation
Sites for a period of six (6) months, at no additional charge, to support
parallel operations and testing of the transferred workload. Upon
expiration of this period the original Installation Site will cease using
the Licensed Products.
1.4.3 If Customer desires to use the Licensed Products in combination with
a operating system, database or other computer programs that the Licensed
Products were not designed to operate with and, a different version of the
Licensed Products is required to operate with such system, database or
3
programs and is generally available from the Licensor, Customer may
acquire a license for the required version of the Licensed Products for
a fee not to exceed the lesser of (i) the then current list license fee
for the required version of the Licensed Products less the license fee
paid for the original version of the Licensed Products, or (ii) the
difference in then current list license fees for the original and
required versions of the Licensed Products, discounted by the percent
specified in Exhibit 2 to this Agreement. Customer may use both versions
of the Licensed Products until the new version of the Licensed Products
has been placed into Production. "Production" shall be deemed to occur
on the date the Customer is using the new version of the Licensed
Products in a "live" environment to support the business requirements
for which the new version of the Licensed Products has been acquired.
Upon use of such Licensed Products in Production, Customer shall, except
for archival purposes, discontinue use of the original version of the
Licensed Products and shall use only the new version of the Licensed
Products.
1.5 As between Licensor and Customer, Licensor retains title to the Licensed
Products provided hereunder and does not convey any proprietary interest therein
to Customer other than the licenses as specified herein.
1.6 Customer acknowledges that Licensor considers the Licensed Products provided
hereunder to be proprietary to Licensor. For as long as the Licensed Products
are in Customer's possession, Customer agrees that unless Customer has obtained
Licensor's prior written consent (such consent not to be unreasonably withheld),
Customer shall keep the applicable Licensed Products confidential and prevent
disclosure of such Licensed Products to any person, firm or enterprise other
than Customer, its subsidiaries and affiliated companies and its or their
employees (for purposes not inconsistent with Customer's permitted use of the
Licensed Products), employees or representatives of Licensor, or other persons
on Customer's premises for purposes related to Customer's permitted use of the
Licensed Products.
1.6.1 Notwithstanding the foregoing, Customer shall not be required to
take any steps to keep confidential and prevent disclosure of the
Licensed Products other than those steps Customer normally takes to
protect its own similar confidential information. Customer's obligation
of confidentiality shall not apply to information which: (i) is already
known to Customer at the time of disclosure; (ii) is obtained by
Customer from a third party without restrictions; (iii) is in the public
domain through no fault of Customer; (iv) is independently developed by
Customer; or (v) is required to be disclosed by law or court order
(provided that the Customer shall notify Licensor of any such
requirement prior to disclosure in order to afford Licensor an
opportunity to seek a protective order to prevent or limit disclosure).
4
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
1.7 Licensor hereby acknowledges and agrees that Customer shall have the right
to modify any of the Licensed Products provided to Customer hereunder, create
additional computer programs that operate in combination with the Licensed
Products, or may pay the Licensor a fee to provide such modifications or
additional computer programs and that Customer may use said modifications and/or
additional computer programs in combination with the Licensed Products provided
to Customer hereunder. Licensor further agrees that all right, title and
interest in and to said modifications or additional computer programs
(including, without limitation, the Source Code for said modifications or
additional computer programs and the right to own all copyrights and patents
relating thereto) and, any data used in combination with, or output derived from
the use of the Licensed Products or said modifications or additional computer
programs, shall vest in Customer and shall be the sole and exclusive property of
Customer.
1.8 Licensor agrees to give Customer discounts for the Licensed Products and
services not included in the license or maintenance fee in accordance with the
provisions of Exhibit 2 which is attached hereto and made a part hereof.
---------
1.9 This Agreement shall commence as of the date first above written and shall
continue in effect thereafter unless and until terminated in accordance with the
provisions of this Agreement.
ARTICLE 2 - DELIVERY; INSTALLATION; ACCEPTANCE
----------------------------------------------
2.1 Licensor agrees to deliver the Licensed Products on the Scheduled Delivery
Date to the applicable Installation Site.
2.2 Licensor agrees to install the Licensed Products ready for use and in good
working order at the applicable Installation Site as soon as possible after
delivery *** *********************************. Licensor agrees to repair any
damage caused by Licensor, its employees, agents, or contractors during
installation and Licensor will hold Customer harmless from any and all claims,
losses, or expenses (including reasonable attorneys' fees) arising from such
installation.
2.3 Following successful completion of the installation of each Licensed
Product, Licensor shall tender such Licensed Product to Customer for On-Site
acceptance testing and Customer shall conduct an acceptance test of such
Licensed Product for a period of ******************* (the "Acceptance Test"), to
determine if the Licensed Product performs in accordance with: (i) the
Specifications; (ii) selected other test criteria as are mutually agreed to by
Licensor and Customer in the applicable
5
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
Schedule, [(i) and (ii) are collectively the "Acceptance Test Criteria")]; and
(iii) the requirements and expectations of Customer. Licensor agrees to assist
Customer, as needed, in the performance of such Acceptance Test. For the
purposes of this Agreement, "business days" shall be those days from Monday
through and including Friday which are not national banking holidays.
2.4 Customer agrees to notify Licensor in writing within ************
after expiration of the Acceptance Test of either its acceptance or rejection of
the applicable Licensed Product.
2.4.1 If Customer rejects any Licensed Product, Customer may: (i)
immediately terminate the applicable Schedule without any further
obligation or liability of any kind; or (ii) require Licensor to
correct the deficiencies disclosed by the Acceptance Test Criteria
and repeat such Acceptance Test until successfully completed,
reserving the right to terminate as aforesaid at anytime. Upon any
such termination, Customer agrees to return the Licensed Products
involved, together with any materials furnished to Customer by
Licensor in connection therewith, without further obligation or
liability of any kind to Licensor.
2.4.2 If Customer accepts any Licensed Product, Licensor may invoice
Customer, at any time after the date that Customer has notified
Licensor in writing of the acceptance of such Licensed Product (the
"Acceptance Date"), for the applicable License Fee, and such invoice
shall be payable by Customer within thirty (30) days of Customer's
receipt of said invoice.
ARTICLE 3 - SOFTWARE ESCROW
---------------------------
3.1 Upon execution of any Schedule hereunder, Licensor agrees to keep and
maintain current in escrow a master tape of the source code for each Licensed
Product, as well as any enhancements, corrections and related documentation
("Source Code"). Licensor will deliver the Source Code for the Licensed Products
covered under such Schedule to the third party designated below, or any
successor thereof, who shall act as escrow agent ("Escrow Agent"). The Escrow
Agent shall be paid by Licensor. In the event that Licensor shall be unwilling
or unable to maintain the Licensed Products for any reason, including, but not
limited to, suspension or discontinuance of business or unwillingness to support
and maintain the Licensed Products, the Escrow Agent shall be instructed by
Customer to deliver a copy of the tape containing the Source Code to the
Customer at the applicable Installation Site. In the event that Customer
receives the Source Code in the manner provided
6
hereunder, such Source Code shall be subject to the terms of Section 1.6 and
1.6.1 herein. Title to the Source Code shall remain with Licensor. Customer
shall have the right at any time to contact the Escrow Agent for purposes of
confirming the existence of the Source Code and documentation including updates
thereto and for verification of the instructions to the Escrow Agent to release
the Source Code under the circumstances specified hereto in this paragraph. In
addition, upon Customer's request, Licensor shall enter into and shall cause the
Escrow Agent to enter into a separate source code escrow agreement for the
benefit of Customer, in a form reasonably acceptable to all such parties.
Escrow Agent:
------------------------------------
------------------------------------
------------------------------------
3.1.1 When Customer shall come into possession of the Source Code in
accordance with this Agreement, Customer shall thereafter have the
absolute right to modify such Source Code to perform any functions
which Customer deems desirable, limited, however, to Customer's
internal use only. The Source Code as so modified shall, nonetheless,
remain subject to the same restrictions on use, reproduction and
disclosure as are contained in this Agreement with respect to the
Licensed Products. Upon any such modification, Licensor shall
thereafter be released from any responsibility to maintain the
Licensed Products.
ARTICLE 4 - DOCUMENTATION AND TRAINING
--------------------------------------
4.1 On the Scheduled Delivery Date for each of the Licensed Products, Licensor
shall deliver to Customer at the applicable Installation Site two (2) copies of
its standard operational instructions and documentation for such Licensed
Products. Such operational instructions and program documentation shall include,
but shall not be limited to, the following: a Licensed Products Users' Guide; a
copy of associated control statements required for operation, and use of the
object code (including control statements for assembly, linkage and other
utilities) in machine readable form; and any other documentation used to
describe the Licensed Products and which is provided by Licensor to its other
customers.
4.1.1 The documentation furnished in accordance with Section 4.1
hereof shall accurately describe the installation procedures, user
instructions and internal operating logic of the Licensed Products
provided hereunder.
4.1.2 If the documentation described in Section 4.1 is revised at
any time or if additional documentation is developed by Licensor with
respect to the Licensed Products, Customer shall be entitled to
receive, at no charge for so long as maintenance services are to be
provided by Licensor in accordance
7
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
with Article 5 hereof, copies of such revised or additional
documentation produced by Licensor.
4.1.3 Customer shall have the right to reproduce any documentation
provided hereunder in order to satisfy its own internal requirements
provided that such reproduction shall solely be for the use of
Customer and shall contain Licensor's proprietary and/or copyright
notice(s). If Customer requests Licensor to furnish additional copies
of any such documentation, Licensor shall furnish such additional
copies to Customer at Licensor's then current standard charge.
4.1.4 Unless otherwise expressly agreed in a Schedule, all
documentation, materials and output derived from the use of the
Licensed Products shall be in the English language, or if requested
by Customer and if available, the language spoken in the jurisdiction
where the Licensed Products are used.
4.2 For each Licensed Product at each Installation Site, Licensor shall provide
to Customer *********************** training, orientation and technical support
sufficient to enable an initial and adequate number of Customer personnel to use
such Licensed Product together with any additional training, orientation and
technical support mutually agreeable to Customer and Licensor, or otherwise
provided by Licensor to its other commercial customers. The location of such
training, orientation and technical support shall be at the applicable
Installation Site or at such other mutually agreed upon location(s). The
scheduling for such training, orientation and technical support shall be
determined by Customer.
4.2.1 Additional training, orientation and other support services
not otherwise specified herein or in the applicable Schedule
**************** will be furnished by Licensor at Customer's request,
at Licensor's standard, published charges then in effect for same.
4.3 Customer may video or audio tape for Customer's own use any training session
provided by Licensor and may reproduce any associated documentation, manuals,
and coding sheets for Customer's own use provided that all titles, logos and
copyrights are also reproduced.
ARTICLE 5 - MAINTENANCE OF LICENSED PRODUCTS
--------------------------------------------
5.1 Commencing upon the date of delivery of each Licensed Product and
continuing thereafter in accordance with the provisions of this Agreement,
Licensor
8
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
agrees to provide the following maintenance services for such Licensed Product
("Maintenance Services"):
5.1.1 Licensor shall correct any failure of the Licensed Product to
operate in accordance with the applicable Acceptance Test Criteria.
5.1.2 Licensor shall provide to Customer all revisions, updates,
improvements, modifications, corrections, releases and enhancements
(the "Updates") to the Licensed Products. Such Updates shall not
degrade the performance, functioning or operation of the Licensed
Products provided hereunder. If any such Updates are acceptable to
Customer, Licensor agrees to give Customer all necessary assistance
to install same, at no cost to Customer. If any such Update is not
acceptable to Customer, Customer may refuse to accept same, and, in
such event, Licensor agrees to maintain the Licensed Product in the
form in effect on the date Licensor requested Customer to accept any
such Update. For purposes of this Agreement, an Update once
incorporated into any Licensed Product hereunder shall be considered
a "Licensed Product" for all purposes hereunder.
5.1.3 Licensor shall make available to Customer, *******************
any and all modifications to each Licensed Product that may be
required to enable same to operate in conjunction with any new
generally available releases and versions of the operating system,
database and other computer programs with which the installed version
of the Licensed Products have been designed to operate.
5.1.4 Licensor shall provide remote technical assistance and
consultation to Customer at any time during Customer's normal working
hours.
5.1.5 Licensor shall correct any malfunction, defect or
nonconformity in each Licensed Product provided hereunder following
telephonic notification by Customer to Licensor of any such
malfunction, defect or nonconformity which prevents the Licensed
Product from performing in accordance with the Acceptance Test
Criteria, the documentation provided hereunder and such other
warranties, descriptions and specifications as may be set forth
herein or in a Schedule. Licensor agrees to respond by telephone to
any such request made during normal business hours, Monday through
Friday, **************** *****. If in the determination of Customer,
any malfunctions, defect or nonconformity cannot be satisfactorily
corrected through such telephone communication, Licensor agrees to
respond ***************************************
9
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
*********************************************************************
******************************** of Customer's initial request. If
such problem is the result of Customer misuse of Licensed Product or
unrelated to Licensed Product, Customer shall reimburse Licensor at
Licensor's then current published standard rates for such services.
5.1.6 Licensor will repair any damage caused by its employees,
agents, or contractors while performing the Maintenance Services and
Licensor will hold Customer harmless from any and all claims, losses,
or expenses (including reasonable attorneys' fees) arising from such
Maintenance Services.
5.1.7 Licensor will provide Customer with any new Licensed Product
which incorporates the function of or is intended to replace a
Licensed Product which Customer has under Maintenance Services, or
which Customer has licensed but for which Licensor had made
Maintenance Services generally unavailable for reasons other than
Customer's failure to renew Maintenance Services.
5.2 Commencing upon the date of delivery of each Licensed Product *************
***************** year from the Acceptance Date thereof, Licensor shall provide
Maintenance Services ***** to Customer. Thereafter, Licensor shall provide
Maintenance Services for the Annual Maintenance Fee set forth on the applicable
Schedule, which shall not exceed ********* of the applicable License Fee set
forth on the applicable Schedule.
5.2.1 Notwithstanding anything to the contrary contained in
Section 5.2, **************************** the Annual Maintenance Fee
for any of the Licensed Products unless such Annual Maintenance Fee
********************************************, whereupon Licensor may
then ******** the Annual Maintenance Fee effective upon the second
and each succeeding anniversary of the Acceptance Date of the
Licensed Products involved provided that such increase shall not
******* ******** of the Annual Maintenance Fee in effect for the
twelve (12) month period immediately prior to ************* and
provided further that after ***************** the charge payable by
Customer shall not exceed Licensor's then current standard charge for
such service.
5.2.2 Licensor agrees to invoice Customer annually in advance for
the Annual Maintenance Fee at least sixty (60) days prior to the
anniversary of the Acceptance Date for the Licensed Product involved
and shall prorate the first Annual Maintenance Fee for each Licensed
Product so that all
10
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
Maintenance Services shall expire as of December 31 of each year.
Each such invoice shall be payable within thirty (30) days of the
anniversary of the Acceptance Date; provided, however, that Customer
shall have the right to terminate Maintenance Services at any time
upon written notice to Licensor.
5.2.3. Customer may reinstate Maintenance Services for any Licensed
Product hereunder by paying a reinstatement charge consisting of an
amount equivalent to the pro rata portion of Annual Maintenance Fee
that would have been due hereunder for the period elapsed since
termination; provided, however, that such reinstatement charge shall
not exceed **************** of the license fee for such Licensed
Product in effect at the time of reinstatement.
ARTICLE 6 - WARRANTIES
----------------------
6.1 Licensor warrants to Customer that: (i) Licensor has the right to
furnish to Customer the Licensed Products and other materials covered hereunder
free of all liens, claims, encumbrances and other restrictions except as stated
to the contrary herein; (ii) Customer shall quietly and peacefully possess the
Licensed Products and other materials furnished hereunder subject to and in
accordance with the provisions of this Agreement; and (iii) Customer's permitted
use and possession of the Licensed Products and other materials will not be
interrupted or otherwise disturbed by any entity asserting a claim under or
through Licensor.
6.2 Licensor warrants that each of the Licensed Products: (i) shall be
free from any defects in material and workmanship; and (ii) shall perform in
accordance with the applicable Acceptance Test Criteria and Licensor's operating
and user documentation applicable to the version of the Licensed Products
provided to Customer hereunder and such other warranties, descriptions and
specifications set forth hereunder.
6.3 Licensor warrants to Customer that the documentation provided by
Licensor hereunder will faithfully and accurately reflect the Licensed Products
provided to Customer hereunder.
6.4 Licensor warrants that commencing upon the delivery of each Licensed
Product ******************************** from the Acceptance Date thereof,
Licensor shall, ************************* maintain such Licensed Product in
accordance with Article 5, and thereafter for so long as Customer has subscribed
to Maintenance Services hereunder.
11
6.5 Licensor warrants that any Maintenance Services or other services
provided by Licensor hereunder will be performed in a professional manner by
qualified personnel.
6.6 Licensor warrants that, unless otherwise expressly provided for and
disclosed on a Schedule, the Licensed Products will be provided to Customer free
of any "virus", "worm", "self destruction", "disabling", "lock out" or
"metering" device, as such terms are understood in the computer industry, which
could impair Customer's use of the Licensed Products.
6.7 Licensor warrants and covenants that no employee, agent or
representative of Customer has been offered, shall be offered, has received, or
shall receive, directly or indirectly, any benefit, fee, commission, dividend,
gift, or consideration of any kind in connection with this Agreement. Licensor
will not, at any time, offer gratuities or any merchandise, cash, services, or
other inducements to the employees of Customer. Violation of this provision
shall be grounds for immediate termination of this Agreement and all Schedules
executed hereunder.
6.8 Licensor further warrants and represents that the Licensed Products
provided to Customer hereunder are compliant with the Standards For Year 2000
Operation (as such term is defined below). Licensor agrees to provide, upon
request by Customer, evidence sufficient to demonstrate adequate testing of the
Licensed Products to meet the foregoing requirements. For the purposes of this
Agreement, the Standards For Year 2000 Operation shall mean that the occurrence
in or use by the Licensed Products of dates on or after January 1, 2000 (the
"Millennial Dates") will not adversely affect the performance of the Licensed
Products with respect to date- dependent data, computations, output, or other
functions (including, without limitation, calculating, comparing and sequencing)
and that the Licensed Products will create, store, process and output
information related to or including Millennial Dates without errors or
omissions. In the event that the Licensed Products fail to so comply, Licensor
shall, promptly upon request by and at no charge to Customer, furnish such
materials and services as shall be necessary to bring the Licensed Products into
compliance. The warranty set forth in this Section 6.8 shall apply only to the
operation of the Licensed Products themselves, and shall not be understood as a
warranty of the Licensed Products' ability to identify and correct Millenial
Dates in other programs.
12
ARTICLE 7 - PATENT AND COPYRIGHT INFRINGEMENT
---------------------------------------------
7.1 Licensor agrees to defend and/or handle at its own expense, any claim
or action against Customer, its parent company, and/or its or their subsidiaries
or affiliated companies, for actual or alleged infringement of any patent,
copyright or similar property right (including, but not limited to,
misappropriation of trade secrets) based upon the Licensed Products or any other
materials furnished hereunder by Licensor or based on Customer's use thereof.
7.1.1 Licensor shall have the sole right to conduct the defense of
any such claim or action and all negotiations for its settlement or
compromise, unless otherwise mutually agreed to in writing between
the parties hereto; provided, however, that Licensor may not hold
Customer to any settlement or agreement without its prior written
consent.
7.2 Licensor further agrees to indemnify and hold Customer, its parent
company, and/or its or their subsidiaries and affiliated companies, harmless
from and against any and all liabilities, losses, costs, damages, and expenses
(including reasonable attorneys' fees) associated with any such claim or action
incurred by Customer, its parent company, and/or its or their subsidiaries or
affiliated companies in accordance with this Article 7.
7.3 Licensor agrees to give Customer prompt written notice of any threat,
warning or notice of any such claim or action against Licensor or any other user
or any supplier of components of the Licensed Product covered hereunder, which
could have an adverse impact on Customer's use of same, provided Licensor knows
or has reason to know of such claim or action.
13
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
ARTICLE 8 - CONFIDENTIAL INFORMATION OF CUSTOMER
------------------------------------------------
8.1 During the term of this Agreement and for a period of five (5) years
from the date of termination of this Agreement, Licensor will regard and
preserve as confidential all information related to the business of Customer,
its parent company, and/or its or their subsidiaries, affiliated companies or
clients that may be obtained by Licensor from any source as a result of this
Agreement. Licensor will not, without first obtaining Customer's prior written
consent, disclose to any person, firm or enterprise, or use for its benefit, any
information relating to the pricing, methods, processes, financial data, lists,
apparatus, statistics, programs, research, developments or related information
of Customer, its parent company, and/or its or their subsidiaries, affiliated
companies or clients concerning past, present or future business activities of
said entities.
8.2 Notwithstanding the foregoing, Licensor shall not have an obligation
of confidentiality with respect to information which: (i) is already known by
Licensor at the time of disclosure without restriction or breach of any
agreement; (ii) is obtained from a third party without restriction or breach of
this Agreement; (iii) is in the public domain through no fault of the Licensor;
(iv) is independently developed by Licensor; or (v) is required to be disclosed
by law or court order (provided that the Licensor shall notify the Customer of
any such requirements prior to disclosure in order to afford Customer an
opportunity to seek a protective order to prevent or limit disclosure).
ARTICLE 9 - TAXES
-----------------
9.1 Customer agrees to pay (in accordance with Section 9.2 below) all
taxes levied by a duly constituted taxing authority against or upon the Licensed
Product or their use, or arising out of this Agreement, including Value Added
Tax ("VAT") and/or any similar, additional or replacement duty, levy or tax
applicable to the fees payable under this Agreement or any services provided
hereunder, exclusive, however, of personal property taxes and taxes based on
Licensor's income or gross receipts, which taxes shall be paid by Licensor.
Licensor will cooperate with Customer in obtaining any VAT refund available to
Customer.
9.2 Customer agrees to pay any tax for which it is responsible under the
terms of Section 9.1 hereof, which may be levied on or assessed against Customer
directly, and, if any such tax is paid by Licensor, to reimburse Licensor
therefor, upon receipt by Customer of proof of payment acceptable to Customer.
14
ARTICLE 10 - MATERIAL BREACH
----------------------------
10.1 In the event of any material breach of, or material misrepresentation
relating to, any Schedule by either party, the other party may terminate said
Schedule by giving thirty (30) days' prior written notice thereof and/or pursue
any other remedies and rights at law or in equity; provided, however, that such
Schedule will not terminate at the end of said thirty (30) days' notice period
if the party in breach has cured the misrepresentation or breach of which it has
been notified prior to the expiration of said thirty (30) days.
10.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE, ONE TO THE OTHER, FOR
INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH
THE FURNISHING, PERFORMANCE, OR USE OF THE LICENSED PRODUCTS AND/OR SERVICES
PROVIDED FOR IN THIS AGREEMENT, EXCEPT TO THE EXTENT SUCH DAMAGES ARE INCLUDED
IN AN AWARD AGAINST CUSTOMER RESULTING FROM A CLAIM FOR WHICH CUSTOMER IS
INDEMNIFIED HEREUNDER AND EXCEPT FOR PERSONAL INJURY OR DEATH, OR DAMAGE TO REAL
PROPERTY.
ARTICLE 11 - EXCUSABLE DELAYS
-----------------------------
11.1 In no event shall either party be liable one to the other, for any
delay or failure to perform hereunder, which delay or failure to perform is due
to causes beyond the control of said party, including, but not limited to, acts
of God; acts of the public enemy; acts of the United States of America, or any
state, territory or political division of the United States of America, or of
the District of Columbia or any foreign government having jurisdiction over the
parties; fires; floods; epidemics; quarantine restrictions; strikes; freight
embargoes; and unusually severe weather conditions.
11.1.1 Notwithstanding the provisions of Section 11.1 hereof, in
every case the delay or failure to perform must be beyond the control
and without the fault or negligence of the party claiming excusable
delay.
11.2 Performance times under any Schedule shall be considered extended for
a period of time equivalent to the time lost because of any delay which is
excusable under this Article 11. If any such excusable delay shall last for a
period of more than thirty (30) consecutive calendar days, the party not relying
on the excusable delay, at its option, may terminate such Schedule.
15
ARTICLE 12 - THIRD PARTY CLAIMS
-------------------------------
12.1 Each party will indemnify, defend, and hold harmless the other from
any claims, losses, or expenses (including reasonable attorneys' fees) arising
from third party claims relating to or arising out of (i) the negligence, breach
of contract, or misrepresentation of such party, its officers, employees,
agents, or representatives, or (ii) the assertion of any strict liability
standard.
16
ARTICLE 13 - NOTICES
--------------------
13.1 Any notices or other communications required or permitted to be given or
delivered under this Agreement shall be in writing (unless otherwise
specifically provided herein) and shall be sufficiently given if delivered
personally or mailed by first-class mail, postage prepaid, to Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx Xxxxx World Headquarters, World
Financial Center - Xxxxx Xxxxx, Xxx Xxxx, XX 00000-0000 Attention: Group
Manager-Systems & Technical Services Contracting, and to Peritus Software
Services, Inc., 000 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000, Attn: Xxxxxx Xxxx, or to
such other address or addressee as either party may from time to time designate
to the other by written notice.
13.2 Any such notice or other communication shall be deemed to be given when
it is personally delivered or as of the date it is placed in the mails in the
manner specified.
ARTICLE 14 - ADVERTISING OR PUBLICITY
-------------------------------------
14.1 Neither party shall use the name or symbol of the other in advertising
or publicity releases without securing the prior written consent of the other.
ARTICLE 15 - ASSIGNMENT
-----------------------
15.1 This Agreement shall be binding upon the parties and their respective
legal successors and permitted assigns.
15.2 Neither party may assign this Agreement and/or any Schedules hereunder,
along with any or all of the respective rights and obligations without the prior
written consent of the other party and any such attempted assignment shall be
void; provided however, that, upon written notice to Licensor, Customer may
assign this Agreement and/or any Schedules hereunder, along with any or all of
the respective rights and/or obligations to its parent company or to one of its
subsidiaries or affiliated companies, without the consent of Licensor.
ARTICLE 16 - GOVERNING LAW
--------------------------
16.1 The validity of this Agreement, the construction and enforcement of its
terms, and the interpretation of the rights and duties of the parties shall be
governed by the laws of the State of New York. The parties hereto agree that the
state and federal courts of New York shall be the proper forums for any legal
controversy arising in connection with this Agreement, and the parties hereby
irrevocably and unconditionally consent to the exclusive jurisdiction of such
courts for such purpose. So far as is permitted under applicable law, this
consent to personal jurisdiction shall
17
be self operative and no further instrument or action, other than service of
process as is permitted by New York Law, shall be necessary in order to confer
jurisdiction upon Licensor in any such court. The Convention on International
Sale of Goods shall not apply to this Agreement and is hereby disclaimed.
ARTICLE 17 - MODIFICATION, AMENDMENT, SUPPLEMENT AND WAIVER
-----------------------------------------------------------
17.1 No modification, amendment, supplement to or waiver of this Agreement or
any of its provisions shall be binding upon the parties hereto unless made in
writing and duly signed by both parties.
17.2 A failure or delay of either party to this Agreement to enforce at any
time any of the provisions of this Agreement, or to exercise any option which is
herein provided, or to require at any time performance of any of the provisions
hereof, shall in no way be construed to be a waiver of such provision of this
Agreement.
ARTICLE 18 - SEVERABILITY
-------------------------
18.1 In the event any one or more of the provisions of this Agreement shall
for any reason be held to be invalid, illegal or unenforceable, the remaining
provisions of this Agreement shall be unimpaired, and the invalid, illegal or
unenforceable provision shall be replaced by a mutually acceptable provision,
which being valid, legal and enforceable, comes closest to the intention of the
parties underlying the invalid, illegal or unenforceable provision.
ARTICLE 19 - EXHIBITS AND ATTACHMENTS
-------------------------------------
19.1 The terms and conditions of any and all Attachments, Exhibits and other
attachments to this Agreement are incorporated herein by this reference and
shall constitute part of this Agreement as if fully set forth herein.
ARTICLE 20 - HEADINGS
---------------------
20.1 The headings in this Agreement are for purposes of reference only and
shall not in any way limit or affect the meaning or interpretation of any of the
terms hereof.
ARTICLE 21 - EXPORT OF LICENSED PRODUCTS
----------------------------------------
21.1 The parties hereby agree that this Agreement shall be subject to any
laws, regulations, order or restrictions on the export of the Licensed Products,
or information about the Licensed Products, which may be imposed at any time or
from time to time by the U.S. Government. Both parties (i) shall comply with all
such laws, regulations, permits, orders and other restrictions to the extent
that they are
18
applicable to Licensed Products and (ii) shall not, directly or indirectly,
export or reexport the Licensed Products or any information about the Licensed
Products to any country for which the U.S. Government, or any agency thereof,
requires an export license or other governmental approval without first
obtaining the same. With respect to all Licensed Products shipped outside of the
United States pursuant to this Agreement, except as otherwise provided on a
Schedule, Licensor shall act as the exporter of record for purposes of the
Export Administration Act of 1979, as amended, and all other relevant laws or
regulations and shall be responsible for obtaining all necessary validated
export licenses and permits necessary to ship the Licensed Products to
Installation Sites outside of the United States. Notwithstanding the foregoing,
Licensor agrees to advise Customer of any import/export restrictions imposed by
any governmental authority upon any of Licensor's products licensed by Customer.
ARTICLE 22 - FOREIGN CORRUPT PRACTICES ACT
------------------------------------------
22.1 Licensor further represents and warrants that it is aware of and
familiar with the provisions of the Foreign Corrupt Practices Act of 1977, as
amended by the Omnibus Trade and Competitiveness Act of 1988 ("FCPA"), and its
purposes and will take no action and make no payment in violation of, or which
might cause Licensor or Customer to be in violation of, the FCPA. Licensor
further represents and warrants that no person employed by it in connection with
the performance of its obligations under this Agreement is an official of the
government of any foreign country, or of any agency thereof, and that no part of
any moneys or consideration paid hereunder shall accrue for the benefit of any
such official. Notwithstanding anything to the contrary, if Licensor takes any
action that could constitute a violation of the FCPA, Customer may, at its sole
option, immediately terminate this Agreement and/or any Schedule issued
hereunder. Furthermore, for purposes of reasonably ensuring compliance with the
FCPA, Licensor agrees that, upon request by Customer at any time during the term
of this Agreement, Licensor will make available for audit by an accounting firm
designated by Customer which is reasonably acceptable to Licensor, Licensor's
books, records and other documentation relevant to its business activities
conducted pursuant to this Agreement. The accounting firm shall provide to
Customer only such information obtained from such review that relates to a
possible violation of the FCPA. Customer shall pay any and all costs of any such
requested audit.
ARTICLE 23 - ENTIRE AGREEMENT
-----------------------------
23.1 This Agreement, together with all the Attachments, Exhibits and other
attachments hereto, constitutes the entire Agreement between the parties and
supersedes all previous agreements, promises, proposals, representations,
understanding and negotiations, whether written or oral, between the parties
respecting the subject matter hereof.
19
IN WITNESS WHEREOF, the parties hereto, each acting under due and
proper authority, have executed this Agreement as of the day, month and year
first above written.
PERITUS SOFTWARE SERVICES, INC. XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxx Xxxxxx
---------------------------- --------------------------
Name: Xxxxxxx Xxxx Name: Xxxxxx Xxxxxx
--------------------------
(type or print)
Title: President & CEO Title: Vice President
-------------------------
Date: 1/26/96 Date: 12/5/96
-------------------------- ------------------------
20
EXHIBIT 1
---------
SCHEDULE NO. ( )
----------------
This Schedule, dated as of ___________, 19__, is issued pursuant to, and
incorporates herein, the Master License Agreement dated as of October 21, 1996
("Agreement"), by and between Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Customer") and Peritus Software Services, Inc. (" Licensor"). Any term not
otherwise defined herein shall have the meaning ascribed to it in the Agreement.
DESCRIPTION OF
--------------
LICENSED PRODUCTS: Type of License:
------------------ ----------------
Installation Site: Scheduled Delivery Date:
------------------ ------------------------
Deliver To:
-----------
Invoice To:
-----------
License Fee: $ Annual Maintenance Fee: $
------------ --------- ----------------------- ---------
Documentation: Two (2) copies of installation, user and technical documentation
-------------
in __________________ language for each license of the Licensed Products.
IN WITNESS WHEREOF, the parties hereto, each acting with proper authority, have
executed this Schedule No.__ as of the day, month and year first written below.
PERITUS SOFTWARE SERVICES, INC. XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By: By:
---------------------------------------- --------------------------
Name: Name:
-------------------------------------- ------------------------
(type or print) (type or print)
Title: Title:
------------------------------------- -----------------------
Date: Date:
-------------------------------------- ------------------------
21
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
EXHIBIT 2
---------
Discount Schedule
1.) All license fees payable under this Agreement shall be ********************
**********************.
2.) All additional training, orientation and other support services requested by
Customer which are not included as part of the license or maintenance fees shall
be ********************************.
22
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
SCHEDULE NO. 1
--------------
This Schedule, dated as of October 21, 1996, is issued pursuant to, and
incorporates herein, the Master License Agreement dated as of October 21, 1996
("Agreement"), by and between Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Customer") and Peritus Software Services, Inc. ("Licensor"). Any term not
otherwise defined herein shall have the meaning ascribed to it in the Agreement.
DESCRIPTION OF LICENSED PRODUCTS:
---------------------------------
Peritus Year 2000 Software, consisting of the following components:
. Peritus COBOL Front-End
. Peritus AutoEnhancer/2000
. Peritus Year 2000 Mass Change Processes and Methodologies for the
software known as AutoEnhancer/2000
Type of License: Enterprise
----------------
Installation Site: Scheduled Delivery Date:
------------------ ------------------------
RS/6000 running AIX with PC October 21, 1996
workstations running Windows 95,
located at Licensor's site in Boston, MA.
Deliver To: Invoice To:
----------- -----------
N/A Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Leuchinger
License Fee: *******, to be credited against the perpetual License Fee set forth
------------
in Section 2 hereof in the event Customer exercises the License Conversion
Option described therein.
Annual Maintenance Fee: ***
-----------------------
Specifications: See Attachment 1 attached hereto and made a part hereof
---------------
S1-1
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
Special Terms and Conditions
----------------------------
1. Acceptance Testing:
-------------------
In conjunction with the license for access to and use of the Licensed Products
granted to Customer pursuant to this Schedule, Licensor will utilize the
Licensed Products to perform a Year 2000 renovation of Customer's Asset Power
Program in order to (1) demonstrate the utility and accuracy of Licensor's
automatic renovation process and tools, (2) provide Customer with production
ready, Year 2000 renovated software, and (3) provide Customer sufficient
information to evaluate Licensor's process and tools for Year 2000 renovation of
Customer applications ("Acceptance Test"). The Acceptance Test will be performed
in accordance with the Acceptance Test Plan set forth on Attachment A hereto and
the renovated program will be provided to Customer no later than December 2,
1996. Upon receipt of the renovated program ("Renovated Program"), Customer
shall have
********************************************************************************
**************************************************** and determine whether to
exercise its option to acquire a perpetual license to use the Licensed Products
for Year 2000 purposes, for internal use only, as set forth in Section 2 below.
2. Customer Options:
-----------------
Customer shall have the following options with respect to the Licensed Products:
A. Customer shall have the right,
***********************************************************************
***** to convert the term license acquired pursuant to this Schedule to
a perpetual license to use the Licensed Products for Year 2000 purposes,
for internal use only ("License Conversion Option"),
************************************************************** for the
License Fee paid pursuant to this Schedule No. 1 ("Converted License
Fee").
If Customer exercises the License Conversion Option: (i) Licensor shall
promptly install the Licensed Products ready for use and in good working
order, upon Customer's request and at Licensor's expense, at up to two
(2) Customer sites on a RS/6000 system running AIX with PC workstations
running Windows 95 (installation at any additional sites shall be at
Customer's expense at Licensor's standard published charges then in
effect for same); and (ii) notwithstanding the provisions of Section
2.4.2 of the Agreement, Customer
S1-2
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
shall pay the Converted License Fee (a) by December 31, 1996 if Licensor
delivers the Renovated Program no later than December 16, 1996, or (b)
within thirty (30) days of receipt of the Renovated Program if Licensor
delivers the Renovated Program after December 16, 1996.
In the event Customer exercises the License Conversion Option, Licensor
shall thereafter provide the following:
. Maintenance Services for the Licensed Products in accordance
with Article 5 of the Agreement commencing upon installation
thereof; provided however, that, notwithstanding the terms of
Section 5.2 of the Agreement, the Annual Maintenance Fee shall
be *********, due and payable as of January 1, 1998 (thereafter,
the Annual Maintenance Fee will be subject to the provisions of
Section 5.2.1 of the Agreement). As part of Maintenance
Services, Licensor shall troubleshoot, diagnose, and resolve any
problems encountered by Customer in using the Licensed Products
in conjunction with required third party software, such as
MicroFocus Revolve.
. in accordance with Section 4.2 of the Agreement, the services of
the following classifications of Licensor personnel, to provide
training to the following number of Customer personnel in the
use of the Licensed Products as described in Attachment B hereto
*********************:
Renovation Engineer I ************************
Renovation Engineer II, III ************************
Technical Consultant ************************
Factory Manager ************************
Additional training for classes on site at Licensor's facilities
will be made available at an additional charge of
*********************************. For additional training for
classes offered on Customer's site, the charge will be
******************************, plus reasonable out-of- pocket
expenses approved by Customer in advance.
. the following full-time resources at Customer's site(s) as
specified by Customer, for a six (6) month period commencing
January 1, 1997, **********************
. ******* Renovation Engineers on Customer's site(s)
. ***************** Development Engineer at Licensor's
site
S1-3
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
. such consulting resources as may be requested by Customer, at
the rates set forth in the Rate Table annexed hereto as
Attachment C and in accordance with mutually agreed-to terms and
conditions.
B. If Customer exercises the License Conversion Option, Customer shall also
have the right to license additional front-ends for other languages as
may be developed by Licensor, such as Assembler, RPG, and PL/I, for an
additional license fee of **************. Licensor agrees to give
Customer prompt notice of the completion of any such development.
Customer will have a period of
***********************************************************************.
Each additional front-end that Customer opts to license will be subject
to acceptance testing in accordance with the provisions of Article 2 of
the Agreement. For purposes of the Agreement, any such additional front-
end accepted by Customer shall be considered a part of the "Licensed
Product" for all purposes thereunder.
C. If Customer exercises the License Conversion Option and Licensor
subsequently further develops the Licensed Products such that they may
be used for generalized maintenance purposes, Customer shall have the
right to license the generalized version of the Licensed Products for an
additional one-time License Fee of **********. Licensor agrees to give
Customer prompt notice of the completion of development of any such
generalized version of the Licensed Products, and Customer will have a
period of *************************************************************
***********.
Customer's exercise of any of the foregoing options shall be pursuant to a
Schedule to the Agreement to be executed by the parties.
3. The following Sections of the Agreement are hereby modified as follows
solely for purposes of this Schedule and any Schedule issued pursuant to
Customer's exercise of its License Conversion Option:
. Section 1.4 is modified to read as follows: "Customer shall be entitled
to keep copies of the Licensed Products off Customer's premises for
purposes of safekeeping, without payment of an additional license fee
therefor. Customer may at any time: (a) upon written notice to Vendor
and at no charge, transfer any license to use the Licensed Products to
any other Customer site and/or computer, and/or (b) with Licensor's
consent, which consent shall not be unreasonably withheld, and at no
charge, transfer any license to use the Licensed Products to a computer
belonging to a third party (including without limitation, third party
S1-4
service bureau vendors who may process Customer's business) with whom
Customer has contracted to obtain service if said party agrees in
writing to comply with the terms of this Agreement and restrict the use
of the Licensed Products to Customer. Customer may: (a) at no charge and
without notice, (i) use any Licensed Product at any other location on a
temporary basis for the purposes of program testing and emergency
backup, and/or (ii) provide remote access to the Licensed Products
installed at Customer's site to a third party with whom Customer has
contracted to obtain service; and/or (b) at no charge and with
Licensor's consent, which consent shall not be unreasonably withheld,
provide the Licensed Products to a third party who has been retained by
Customer to load the Licensed Products onto Customer's computing
equipment at Customer's site or such third party's site if said party
agrees in writing to comply with the terms of the Agreement and restrict
the use of the Licensed Products to Customer's computing equipment."
. Section 1.6 is modified by adding the following phrase after each
instance of the phrase "Licensed Products": "and all related material
which is marked confidential".
. Sections 1.7 and 1.8 are deleted.
. Section 3.1 is modified by replacing the last sentence thereof with the
following: "The parties agree to negotiate in good faith mutually
acceptable terms and conditions to govern the escrow of the Source Code
for the Licensed Products and to enter into an agreement setting forth
such mutually acceptable terms and conditions by no later than December
15, 1996."
. Section 15.2 is modified by adding the following to the end thereof:
"and provided further that, upon written notice to Customer, Licensor
may assign this Agreement and/or any Schedules hereunder, along with any
or all of the respective rights and/or obligations, to any entity with
which Licensor may merge or which may acquire Licensor, other than a
competitor of Customer, without the consent of Customer."
4. The following shall apply solely to any Schedule issued pursuant to
Customer's exercise of its License Conversion Option:
. For purposes of Section 4.2, there will be two (2) Installation Sites,
to be designated by Customer.
. Section 5.1.5 shall be modified as follows:
"Licensor shall correct any malfunction, defect or nonconformity
in each Licensed Product provided hereunder following telephonic
notification
S1-5
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
by Customer to Licensor of any such malfunction, defect or nonconformity
which prevents the Licensed Product from performing in accordance with
the Acceptance Test Criteria, the documentation provided hereunder and
such other warranties, descriptions and specifications as may be set
forth herein or in a Schedule. Licensor agrees to respond by telephone
to any such request made during the hours of 8am to 5pm EST/EDT, Monday
through Friday, *******************, and to any question or request for
an enhancement **************************. If in the determination of
Customer, any malfunction, defect or nonconformity which interrupts or
materially affects Customer's use of the Licensed Products cannot be
satisfactorily corrected through such telephone communication, Licensor
agrees to respond
************************************************************************
************************************************* of Customer's initial
request. If such problem is the result of Customer misuse of Licensed
Product or unrelated to Licensed Product, Customer shall reimburse
Licensor at Licensor's then current published standard rates for such
services.
IN WITNESS WHEREOF, the parties hereto, each acting with proper authority, have
executed
PERITUS SOFTWARE XXXXXXX LYNCH, PIERCE, XXXXXX
SERVICES, INC. & XXXXX INCORPORATED
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxx Xxxxxx
---------------------------- --------------------------
Name: Xxxxxxx Xxxx Name: Xxxxxx Xxxxxx
-------------------------- ------------------------
Title: President & CEO Title: Vice President
------------------------- -----------------------
Date: 11/26/96 Date: 12/5/96
-------------------------- ------------------------
S1-6
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
ATTACHMENT 1 TO SCHEDULE NO. 1
------------------------------
SPECIFICATIONS FOR LICENSED PRODUCTS
------------------------------------
The following specifications for the Licensed Products are incorporated herein
by reference and made a part hereof:
PERITUS COBOL FRONT-END:
------------------------
****************************************************************************
*****************.
The following dialects are supported:
****************
************************************************
****************
****************
PERITUS AUTOENHANCER/2000:
--------------------------
a) **********************************************************
b) **********************************************************
****************************************************************
****************************************************************
****************************************************************
****************************************************************
c) **********************************************************
****************************************************************
**********
. ******************
. ******************
. ******************
. ******************
d) **********************************************************
S1-7
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
e) **********************************************************
****************************************************************
**********
. *********************
. *********************
. *********************
f) **********************************************************
g) **********************************************************
h) **********************************************************
****************************************
i) **********************************************************
****************************************************************
**********
j) **********************************************************
****************************************************************
**********
k) **********************************************************
****************************************************************
**********
l) **********************************************************
**********
. ***********************
. ***********************
. ***********************
. ***********************
. ***********************
. ***********************
. ***********************
. ***********************
. ***********************
. ***********************
. ***********************
S1-8
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
. ***********************
. ***********************
. ***********************
Peritus Year 2000 Mass Change Processes and Methodologies for the tool
----------------------------------------------------------------------
known as Automate 2000.
----------------------
This includes the following documentation and flow charts:
. ****************************************
. ****************************************
. ****************************************
. ****************************************
. ****************************************
. ****************************************
. ****************************************
. ****************************************
. ****************************************
S1-9
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
SCHEDULE NO. 2
--------------
This Schedule, dated as of December 16, 1996, is issued pursuant to, and
incorporates herein, the Master License Agreement dated as of October 21, 1996
("Agreement"), by and between Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Customer") and Peritus Software Services, Inc. ("Licensor"). Any term not
otherwise defined herein shall have the meaning ascribed to it in the Agreement.
DESCRIPTION OF LICENSED PRODUCTS:
---------------------------------
Peritus Year 2000 Software, consisting of the following components:
. Peritus COBOL Front-End
. Peritus AutoEnhancer/2000
. Peritus Year 2000 Mass Change Processes and Methodologies for the software
known as AutoEnhancer/2000
Type of License: Scheduled Delivery Date:
---------------- ------------------------
Enterprise See Section 2 below
Installation Site: Deliver/Invoice To:
------------------ -------------------
See Section 2 below Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Leuchinger
License Fee: ********** minus a credit of ********** for License Fees paid
pursuant to Schedule No. 1 to the Agreement
Annual Maintenance Fee: See Section 4 below
----------------------
Specifications: See Attachment 1 attached hereto and made a part hereof
--------------
S2-1
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
Special Terms and Conditions
----------------------------
1. For purposes of this Schedule only, the Licensed Products shall be deemed
to have been accepted by Customer in accordance with Article 2 of the Agreement
as of the date first set forth above.
2. Licensor shall promptly install the Licensed Products ready for use and in
good working order, upon Customer's request and at Licensor's expense, at up to
two (2) Customer sites on a RS/6000 system running AIX with PC workstations
running Windows 95 (installation at any additional sites shall be at Customer's
expense at Licensor's standard published charges then in effect for same).
3. Notwithstanding the provisions of Section 2.4.2 of the Agreement, Customer
shall pay the License Fee by December 31, 1996.
4. Licensor shall provide Customer with the following:
. Maintenance Services for the Licensed Products in accordance with
Article 5 of the Agreement, commencing upon installation thereof;
provided however, that, notwithstanding the terms of Section 5.2 of the
Agreement, the Annual Maintenance Fee shall be ********** due and
payable as of January 1, 1998 (thereafter, the Annual Maintenance Fee
will be subject to the provisions of Section 5.2.1 of the Agreement). As
part of Maintenance Services, Licensor shall troubleshoot, diagnose, and
resolve any problems encountered by Customer in using the Licensed
Products in conjunction with required third party software, such as
MicroFocus Revolve.
. in accordance with Section 4.2 of the Agreement, the services of the
follow ing classifications of Licensor personnel, to provide training to
the follow ing number of Customer personnel in the use of the Licensed
Products as described in Attachment A hereto at no additional charge:
Renovation Engineer I ********************
Renovation Engineer II, III **********************
Technical Consultant ******************
Factory Manager ******************
Additional training for classes on site at Licensor's facilities will be
made available at an additional charge of ********************. For
additional
S2-2
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
training for classes offered on Customer's site, the charge will be
********** per instructor day, plus reasonable out-of- pocket expenses
approved by Customer in advance.
. the following full-time resources at Customer's site(s) as specified by
Customer, for a six (6) month period commencing January 1, 1997, at
**********
. ********** Renovation Engineers on Customer's site(s)
. ********** Development Engineer at Licensor's site
. such consulting resources as may be requested by Customer, at the rates
set forth in the Rate Table annexed hereto as Attachment B and in
accordance with mutually agreed-to terms and conditions.
5. Customer shall also have the right to license additional front-ends for
other languages as may be developed by Licensor, such as Assembler, RPG, and
PL/I, for an additional license fee of ********** each. Licensor agrees to give
Customer prompt notice of the completion of any such development. Customer will
have a period of one year from the date that it receives said notice from
Licensor to exercise this option. Each additional front-end that Customer opts
to license will be subject to acceptance testing in accordance with the
provisions of Article 2 of the Agreement. For purposes of the Agreement, any
such additional front-end accepted by Customer shall be considered a part of the
"Licensed Product" for all purposes thereunder.
6. If Licensor subsequently further develops the Licensed Products such that
they may be used for generalized maintenance purposes, Customer shall have the
right to license the generalized version of the Licensed Products for an
additional one-time License Fee of **********. Licensor agrees to give Customer
prompt notice of the completion of development of any such generalized version
of the Licensed Products, and Customer will have a period of one year from the
date it receives said notice to exercise this option.
7. The following Sections of the Agreement are hereby modified as follows
solely for purposes of this Schedule:
. Section 1.4 is modified to read as follows: "Customer shall be
entitled to keep copies of the Licensed Products off Customer's
premises for purposes of safekeeping, without payment of an additional
license fee therefor. Customer may at any time: (a) upon written
notice to Vendor and at no charge, transfer
S2-3
any license to use the Licensed Products to any other Customer site
and/or computer, and/or (b) with Licensor's consent, which consent
shall not be unreasonably withheld, and at no charge, transfer any
license to use the Licensed Products to a computer belonging to a
third party (including without limitation, third party service bureau
vendors who may process Customer's business) with whom Customer has
contracted to obtain service if said party agrees in writing to comply
with the terms of this Agreement and restrict the use of the Licensed
Products to Customer. Customer may: (a) at no charge and without
notice, (i) use any Licensed Product at any other location on a
temporary basis for the purposes of program testing and emergency
backup, and/or (ii) provide remote access to the Licensed Products
installed at Customer's site to a third party with whom Customer has
contracted to obtain service; and/or (b) at no charge and with
Licensor's consent, which consent shall not be unreasonably withheld,
provide the Licensed Products to a third party who has been retained
by Customer to load the Licensed Products onto Customer's computing
equipment at Customer's site or such third party's site if said party
agrees in writing to comply with the terms of the Agreement and
restrict the use of the Licensed Products to Customer's computing
equipment."
. Section 1.6 is modified by adding the following phrase after each
instance of the phrase "Licensed Products": "and all related material
which is marked confidential".
. Sections 1.7 and 1.8 are deleted.
. Section 3.1 is modified by replacing the last sentence thereof with
the following: "The parties agree to negotiate in good faith mutually
acceptable terms and conditions to govern the escrow of the Source
Code for the Licensed Products and to enter into an agreement setting
forth such mutu ally acceptable terms and conditions by no later than
March 1, 1997."
. For purposes of Section 4.2, there will be two (2) Installation Sites,
to be designated by Customer.
. Section 5.1.5 shall be modified to read as follows: "Licensor shall
correct any malfunction, defect or nonconformity in each Licensed
Product provided hereunder following telephonic notification by
Customer to Licensor of any such malfunction, defect or nonconformity
which prevents the Licensed Product from performing in accordance with
the Acceptance Test Criteria, the documentation provided hereunder and
such other warranties, descriptions and specifications as may be set
forth herein or in a Schedule. Licensor agrees to respond by telephone
to any such request made during the hours of 8am to 5pm EST/EDT,
Monday through Friday,
S2-4
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
within ******* and to any question or request for an enhancement
within ******* business day. If in the determination of Customer, any
malfunction, defect or nonconformity which interrupts or materially
affects Customer's use of the Licensed Products cannot be
satisfactorily corrected through such telephone communication,
Licensor agrees to respond by having at least ************* trained in
the Licensed Products at the Installation Site within *********** of
Customer's initial request. If such problem is the result of Customer
misuse of Licensed Product or unrelated to Licensed Product, Customer
shall reimburse Licensor at Licensor's then current published standard
rates for such services."
. Section 15.2 is modified by adding the following to the end thereof:
"and provided further that, upon written notice to Customer, Licensor
may assign this Agreement and/or any Schedules hereunder, along with
any or all of the respective rights and/or obligations, to any entity
with which Licensor may merge or which may acquire Licensor, other
than a competitor of Customer, without the consent of Customer."
IN WITNESS WHEREOF, the parties hereto, each acting with proper authority, have
executed this Schedule No. 2 as of the day, month, and year first above written.
PERITUS SOFTWARE XXXXXXX LYNCH, PIERCE, XXXXXX
SERVICES, INC. & XXXXX INCORPORATED
By: /s/Xxxxx Xxxxx By: /s/Xxxxxx Xxxxxx
-------------------------------- ---------------------------------
Name: Xxxxx Xxxxx Name: Xxxxxx Xxxxxx
------------------------------ -------------------------------
Title: Vice President - Finance Title: Vice President
----------------------------- -------------------------
Date: 11/12/96 Date: 12/16/96
------------------------------ -------------------------------
S2-5
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
ATTACHMENT 1 TO SCHEDULE NO. 1
------------------------------
SPECIFICATIONS FOR LICENSED PRODUCTS
------------------------------------
The following specifications for the Licensed Products are incorporated herein
by reference and made a part hereof:
PERITUS COBOL FRONT-END:
-----------------------
Cob2pil/Cob2sym translates into Peritus Intermediate Language the most commonly
utilized COBOL statements.
The following dialects are supported:
**********
********************
**********
**********
PERITUS AUTOENHANCER/2000:
-------------------------
a) ********************
b) ************************************************************
******************************************************************
******************************************************************
******************************************************************
**********************************.
c) ************************************************************
******************************************************************
******************************************************************
. *********************
. *********************
. *********************
. *********************
d) *****************************************************
e) ************************************************************
******************************************************************
******************************************************************
S2-6
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
. *********************
. *********************
. *********************
f) **********************************************************
g) **********************************************************
h) **********************************************************
i) **********************************************************
************************************************************
j) ************************************************************
******************************************************************
******************************************************************
k) ************************************************************
******************************************************************
******************************************************************
l) ************************************************************
******************************************************************
. *********************
. *********************
. *********************
. *********************
. *********************
. *********************
. *********************
. *********************
. *********************
. *********************
. *********************
. *********************
. *********************
. *********************
. *********************
. *********************
S2-7
Confidential material omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote such omissions.
Peritus Year 2000 Mass Change Processes and Methodologies for the tool known as
-------------------------------------------------------------------------------
Automate 2000.
-------------
This includes the following documentation and flow charts:
. **************************************
. **************************************
. **************************************
. **************************************
. **************************************
. **************************************
. **************************************
. **************************************
. **************************************
. **************************************
S2-8
