Exhibit 10.8
Tivoli
Making Client/Server Work(TM)
SOFTWARE TASK ORDER AGREEMENT
THIS SOFTWARE TASK ORDER AGREEMENT ("Agreement") is made by and between TIVOLI
SYSTEMS INC. (hereinafter "Tivoli"), with offices at 0000 Xxxxxxx xx Xxxxx
Xxxxxxx Xxxxx Xxxxxxxxx Xxxxx Xxx Xxxxx 000, Xxxxxx, XX 00000 and Pencom
Software, (hereinafter "Pencom"), with offices at 0000 Xxxxxxx xx Xxxxx Xxxxxxx
Xxxxx Xxxxxx Xxxxx 00000.
PREAMBLE
Purpose - Tivoli desires to engage Pencom to perform software task orders
including but not limited to; developing, enhancing, porting, creating, testing,
support, and delivering certain programming materials as works made for hire,
and Pencom is interested in accepting such engagement, subject to the parties'
further agreement on the scope and terms of individual Work Statements which
shall be incorporated as Exhibits to this Agreement. Tivoli and Pencom mutually
agree that the terms and conditions set forth in this Agreement shall govern to
all such engagements.
NOW, THEREFORE, in consideration of the promises and covenants contained
herein, the parties hereby agree as follows:
Section 1 DEFINITIONS
When used in this Agreement and in the Work Statement hereto, the capitalized
terms listed below shall have the following meanings:
1.1 Code. Computer programming code. If not otherwise specified, "Code" shall
include both Object Code and Source Code. "Code" shall include any
Maintenance Modifications or Basic Enhancements thereto in existence from
time to time, and shall include Major Enhancements thereto when added to
the Code in connection with the Work Statement.
a. Object Code. The machine-readable form of the Code.
b. Source Code. The human-readable form of the Code and related system
documentation, including all comments and any procedural code such as
revision control files and shell scripts.
1.2 Deliverables. All Code, Documentation, and other materials developed for
or delivered to Tivoli by Pencom under this Agreement and defined any
applicable Work Statement attached hereto and made apart of this
Agreement.
1.3 Derivative Work. A work that is based upon one or more preexisting works,
such as a revision, modification, translation, abridgment, condensation,
expansion, or any other form in which such preexisting works may be
recast, transformed, or adapted, and which, if prepared without
authorization of the owner of the copyright in such preexisting work,
would constitute a copyright infringement. For purposes hereof, a
Derivative Work shall also include any compilation that incorporates such
a preexisting work.
1.4 Documentation. User manuals and other written materials that relate to
particular Code, including materials useful for design (e.g. logic manuals
and principles of operation). Documentation shall include any Maintenance
Modifications of Basic Enhancements, and updates provided by Pencom to
Tivoli from time to time, and shall include Major Enhancements thereto
when added to the Documentation in connection with any individual Work
Statement issued hereunder.
1.5 Enhancements. Changes or additions, other than Maintenance Modifications,
to Code and related Documentation, including all new releases, that
improve functions, add new functions, or significantly improve performance
by changes in system design or coding.
Tivoli/Pencom Software Task Order Agreement (November 20, 1995) Page 1
a. Basic Enhancements. Any Enhancements that are not Major Enhancements.
b. Major Enhancements. Change or additions to Code and related
Documentation that (1) have a value and utility separate from the use of
Code and Documentation; (2) as a practical matter, may be priced and
offered separately from the Code and Documentation; and/or (3) are not
made available to any of Pencom's customers without separate charge.
1.6 Error. Any error, problem, or defect resulting from (1) an incorrect
functioning of Code, or (2) an incorrect or incomplete statement or
diagram in Documentation, if such error, problem, or defect renders the
Code inoperable, causes the Code to fail to meet the specifications
thereof, causes the Documentation to be inaccurate or incomplete in any
material respect, causes incorrect results, or causes incorrect functions
to occur when any such materials are used.
1.7 Maintenance Modifications. Any modifications or revisions, other than
Enhancements, to Code or Documentation that correct errors, support new
releases of the operating systems with which the Code is designed to
operate, support new input/output (I/O) devices, or provide other
incidental updates and corrections.
1.8 Specifications. The requirements for the work as defined collectively by
the Work Statement.
1.9 a) Software Product(s) means one or more Tivoli Management Environment(TM)
("TME") proprietary computer software programs or Tivoli/Plus Modules in
object code format, and their related materials which include the user
manuals, documentation, and software release notes associated with them
including updates, modifications or new releases of such software programs
and documentation as may be provided by Tivoli to Pencom from time to
time.
b) "Toolkit" is defined as a Software Product which permits user
customization or extension of the application Software and/or production
of Developed Programs (currently such Toolkits are Tivoli/AEF(TM),
Tivoli/EIF(TM) and Tivoli/ADE(TM).
1.10 Ported TME Software. means the ported version of the Software Products
adapted to operate on specific hardware and software platforms as shall be
further defined in any applicable Work.
1.11 New Work. "New Work" shall mean any idea, design, concept, technique,
invention, discovery, or improvement whether or not patentable, made
solely or jointly by Pencom and/or Pencom's employees and/or Pencom's
subcontractors, or jointly by Pencom and/or Pencom's employees and/or
Pencom's subcontractors with one or more employees of Tivoli and/or
Tivoli's subcontractors, during the term of this Agreement and in the
performance of any work under Work Statement issued hereunder, provided
that either the conception or reduction to practice thereof occurs during
the term of this Agreement and in the performance of work under the Work
Statement issued hereunder.
1.12 Proprietary Data. "Tivoli Proprietary Data" is defined as unpublished
Tivoli "know-how", which shall include (without limitation) computer
program designs, algorithms, subroutines, system specifications, test
data, charts, graphs, operation sheets and all other technical
information, owned by Tivoli or under its control, relating to the
deeelopment and production or use of the Tivoli preexisting work, defined
in Exhibit A, and the design, configuration, programming, and protocol of
the Tivoli pre-existing work. "Pencom Proprietary Data" is defined as
unpublished Pencom "know-how", which shall include algorithms, subroutines
and all other technical information, owned by Pencom or under its control,
relating to the development and production or use of Pencom preexisting
work, defined in Exhibit A, and the design, configuration, programming,
and protocol of the Pencom pre-existing work.
Tivoli/Pencom Software Task Order Agreement (November 20, 1995) Page 2
Section 2 PROJECT MANAGEMENT
2.1 Project Manager. Upon execution of this Agreement, each party shall notify
the other party of the name, business address, and telephone number of its
Project Manager. The Project Manager of each party shall be responsible
for arranging all meetings, visits, and consultations between the parties.
The Project Manager shall also be responsible for receiving all notices
under this Agreement and for all administrative matters such as invoices,
payments, and amendments.
2.2 Scope of Work. The Work Statement agreed to by the parties shall define
the scope of work. Additional scope of work hereunder, regardless of
whether it relates to the same subject matter as the initial Work
Statement or not shall become effective only upon execution by authorized
representatives of both parties of a written amendment hereto.
Section 3 CHANGES
3.1 Changes in the Work Statement, Specifications or Deliverables of the Work
Statement hereunder shall become effective only when a written change
request is executed by authorized reprentatives of both parties.
3.2 Change requests that do not substantially affect the nature of
Deliverables, their performance, or their functionality, and that do not
change schedules or dollar amounts may be requested and/or accepted by the
parties' Project Managers.
3.3 Pencom may not decline to accept any change requests that reduce the cost
of performance, provided that an equitable adjustment in compensation is
made for costs of any performance or preparation already undertaken.
Pencom further may not decline any change requests that increase the cost
or magnitude of scope, provided that the changes are reasonable in scope.
Section 4 COMPENSATION AND INVOICING
4.1 Payment for all services to be performed shall be set forth in the Work
Statement.
a. Fixed Price-Pencom compensation for Deliverables subject to
milestones in the Work Statement shall be fixed price. Unless the Work
Statement provides for progress payments, Tivoli shall pay the full amount
of the fixed price upon Pencom's satisfactory completion of the Work
Statement and Tivoli's acceptance or the work as provided therein.
b. Royalties-Royalties, if any, will be paid by Tivoli to Pencom as
defined in the Work Statement.
c. Invoicing-Pencom will submit invoices to Tivoli for payment for work
and/or Deliverables at such times as payment becomes due under the Work
Statement. Invoices shall be payable net thirty (30) days after
receipt of a proper invoice from Pencom unless otherwise specified in the
Work Statement.
1) Invoices shall specifically refer to the Work Statement milestone
or Deliverables to which they relate. Whenever an invoice includes
charges for time and materials if authorized by a Work Statement,
the invoice shall detail names, and hours of Pencom's employees
performing the work.
2) Each invoice shall separately set forth reasonable travel and
living expenses which have prior authorization for reimbursement by
Tivoli. Supporting receipts as required by Tivoli's travel
reimbursement guidelines shall accompany each invoice.
3) Pencom shall maintain complete and accurate records in accordance
with sound accounting practices to support all Pencom's charges
invoiced to Tivoli under this Agreement for a period of three (3)
years after expiration of termination of this Agreement.
Section 5 EXPENSES
Tivoli/Pencom Software Task Order Agreement (November 20,1995) Page 3
5.1 Except as expressly agreed otherwise by Tivoli in the Work Statement,
Pencom shall bear all of its own costs and expenses arising from its
performance of its obligations under this Agreement and the Work Statement
issued hereafter, including (without limitation) facilities, work space,
utilities, management, clerical reproduction services and supplies.
Section 6 DELIVERY AND ACCEPTANCE
6.1 Pencom shall deliver all Deliverables, upon completion, to Tivoli's
technical coordinator for testing and acceptance. Unless a different
procedure for testing and acceptance is set forth in the Work Statement,
Tivoli's technical coordinator shall commence acceptance testing following
its receipt of the Deliverables. Upon completion of such testing, Tivoli
shall issue to Pencom's technical coordinator written notice of acceptance
or rejection of the Deliverables. In the event of rejection, Tivoli shall
give its reasons for rejection to Pencom's technical coordinator. Pencom
shall use all reasonable effort to correct any deficiencies or
nonconformity and resubmit the corrected items within thirty (30) days.
Tivoli will no unreasonably reject acceptance. If Tivoli does not reply to
Pencom wthin thirty (30) days after delivery with notice of acceptance or
rejection then the the delivery will have deemed to be accepted.
Section 7 NOTICE OF DELAY
7.1 Pencom agrees to notify Tivoli promptly of any delay that may affect
Pencom's ability to meet the requirements of the Work Statement under this
Agreement, or that is likely to occasion any material delay in delivery of
Deliverables. Such notice shall be given, including but not limited to the
event of any loss or reassignment of key employees, threat of strike, or
major equipment failure.
Section 8 OWNERSHIP AND RIGHTS
8.1 Ownership of Work Product by Tivoli. All Deliverables shall be owned by
Tivoli and shall be considered works made for hire. Tivoli shall own all
United States and international copyrights in the Deliverables and title
to all Code in the Deliverables, including all modifications and
Enhancements made by Pencom under this project. Tivoli shall retain all
rights, title and interest to, and copyright in, Tivoli Code, and
Derivative Work thereof, supplied to Pencom by Tivoli as a basis for
Pencom's work.
8.2 Vesting of Rights. With the sole exception of any preexisting works
identified in Section 8.3 hereof, Pencom agrees to assign, and hereby
assigns to Tivoli, its successors and assigns, ownership of all United
States and international copyrights in each and every Deliverable, insofar
as any such Deliverable by operation of law, may not be considered a work
made for hire. From time to time upon Tivoli's request, Pencom and/or its
personnel shall confirm such assignment by execution and delivery of such
assignments, confirmations of assignment, or other written instruments as
Tivoli may request. Tivoli, its successors and assigns, shall have the
right to obtain and hold in its own name all copyright registrations and
other protection that be available for Deliverables.
8.3 Preexisting Works. In the event that any Deliverable constitutes a
Derivative Work of any preexisting work, Pencom shall ensure that the Work
Statement pertaining to such Deliverable so indicates reference to (1) the
nature of such preexisting work, (2) its owner, (3) any restrictions or
royalty terms applicable to Pencom's use of such preexisting work or
Tivoli's exploitation of the Deliverable as a Derivative Work thereof, and
(4) the source of Pencom's authority to employ the preexisting work in the
preparation of the Deliverable. Before initiating the preparation of any
such Deliverable that is a Derivative Work of a preexisting work licensed
by Tivoli, Pencom shall cause Tivoli, its successors and assigns, to have
and obtain the irrevocable, non-exclusive, worldwide, royalty-free license
and right to (1) use, execute, reproduce, display, perform, distribute
internally and externally, sell copies of, and prepare Derivative Works
based upon all preexisting works and Derivative Works thereof, and (2)
authorize or sub license others from time to time to do any or all of the
foregoing.
8.4 Patent License. In addition, Pencom hereby grants to Tivoli, its
successors and assigns, the royalty-free worldwide, non-exclusive right
and license under any patents owned by Pencom, or with respect to which
Pencom has a right to grant such rights and licenses, to the extent
required by Tivoli to exploit the Deliverables and exercise its full
rights in the Deliverables, including (without limitation) the right to
make, use, license, sublicense and sell any product and services based on
or incorporating such Deliverables.
8.5 Pencom Use of Tivoli Software Code and License Grant. Tivoli will deliver
to Pencom Tivoli Object or Source Code and related documentation Software
Products to the extent and as defined and required for in the Work
Tivoli/Pencom Software Task Order Agreement (November 20, 1995) Page 4
Statement. Tivoli Software Products are provided to Pencom with the
following limited license grant. Tivoli grants Pencom a non-exclusive,
non-transferable, license to use the Software Products for internal use
only for the purpose of development, enhancement, testing, and delivery of
software product Deliverables as defined in the Work Statement and for
Pencom maintenance support of the Pencom-supplied Tivoli Deliverable
product or for subsequent work for Tivoli as the parties may agree by
mutual written agreement and amendment hereto. Pencom may install and use
Software Products on a Tivoli Server(s) and Licensed Computers only in the
maximum number of copies of each Software Product as provided by Tivoli.
The Tivoli Server host identification number and the number of licensed
copies of each Software Product which are to be used are confirmed between
Tivoli and Pencom in the License Key Certificate (License Key Request)
Form which and which accompanies delivery of the Software Products. Pencom
may also make a reasonable number of copies of the Software in
machine-readable form solely for archive or backup purposes in accordance
with Pencom's standard archive or backup policies and procedures. Except
as provided in the Software documentation relating to Toolkits, Pencom is
not authorized to modify, adapt trsnslate, or create derivative works
based upon, in whole or in part any Software Products, or to reverse
compile or disassemble the Software. Pencom may use Toolkits or Developed
Program(s) only on Licensed Computers which are operating one or more
suitably licensed Tivoli Software Products. The rights granted Pencom
hereunder are restricted exclusively to Pencom and such license and use
rights, Software Products, or Developed Programs may not be assigned,
sub-leased, sub-licensed, sold or otherwise transferred.
USE ON OTHER COMPUTERS. Pencom may use the Software Products on computers
other than the Licensed Computers (i) temporarily, if the Licensed
Computers cannot be used because of equipment or software malfunctions or
(ii) if the Licensed Computers are replaced by Pencom with other
computers provided there is no increase in the quantity of computers
using Software Product(s) over the quantity of computers for which Pencom
has purchased licenses for such product(s).
DOCUMENTATION. Pencom may make, for its internal use only and only in
conjunction with use of the Software Products, a reasonable number of
printed copies of the Software Product user manuals/documentation which
may be supplied to Pencom in CD/ROM, tape and/or hard copy format
provided Pencom includes all Tivoli copyright and all other proprietary
notices on the documentation on such copies it produces.
TITLE. This Agreement grants Pencom no title or rights of ownership in
the Software Products. All Software Products furnished by Tivoli, and all
copies thereof made by Pencom, including translations, compilations, and
partial copies, and all patches, revisions, and updates thereto are and
shall remain the property of Tivoli or Tivoli's licensors, as applicable.
PROPRIETARY MARKINGS. Pencom agrees not to remove or destroy any
proprietary markings or proprietary legends placed on or contained within
the Software Products or any related materials or documentation.
Additionally, Pencom agrees to reproduce and include Tivoli's proprietary
and copyright notices on any copies of the Software Products and related
materials, or on any portion thereof, including reproduction of the
international copyright notice.
Section 9 TECHNOLOGICAL MATTERS
9.1 Vesting of Rights. Pencorn hereby assigns to Tivoli, its successors and
assigns, all New Work, together with the right to seek protection by
obtaining patent rights therefor and to claim all rights or priority
thereunder, and the same shall become and remain Tivoli's property whether
or not such protection is sought.
9.2 Protection of Proprietary Data and Confidential Information. Pencom and
Tivoli acknowledge and agree that their respective Proprietary Data
comprises commercially valuable technology, the design and development of
which reflect the effort of experts and the investment of substantial time
and money. Pencom and Tivoli both recognize that the continued value of
their respective Proprietary Data depends on the preservation and
enforcement of the trade secrets, copyrights, and other proprietary
interests embodied in their respective Proprietary Data and, in the case
of Tivoli Proprietary Data, to be embodied in the work product. Therefore,
Pencom and Tivoli agree, for their mutual benefit, to apply reasonable
efforts to protect and defend the trade secrets and copyrights of each
other, and Tivoli trade secrets and copyrights in the work product against
unauthorized use or infringement. Pencom and Tivoli agree that each will
take reasonable steps to ensure that all persons afforded access to the
other's Proprietary Data protect such Proprietary Data against
unauthorized use, dissemination, disclosure, reproduction or distribution.
Any Confidential Information disclosed between the parties shall be
subject to the terms of Exhibit B attached and incorporated into this
Agreement.
Section 10 AGREEMENTS WITH EMPLOYEES
Tivoli/Pencom Software Task Order Agreement (November 20, 1995) Page 5
10.1 Pencom shall obtain and maintain in effect written agreements with each of
its employees and contractors who participate in any of Pencom's work
under the Work Statement. Such agreements shall contain terms sufficient
for Pencom to comply with all provisions of this Agreement and to support
all grants and assignments of rights and ownership hereunder. Such
agreements also shall impose an obligation of confidentiality on such
employees with respect to Tivoli's confidential information.
Section 11 REPRESENTATIONS AND WARRANTIES
11.1 Pencom makes the following representations and warranties for the benefit
of the Tivoli, as a present and ongoing affirmation of facts in existence
at all times when this Agreement or the Work Statement is in effect:
a. No Conflict. Pencom represents and warrants that it is under no
obligation or restriction, nor will it assume any such obligation or
restriction, that does or would in any way interfere or conflict
with, or that does or would present a conflict of interest
concerning, the work to be performed by Pencom under this Agreement
and the Work Statement.
b Ownership Rights. Pencom represents and warrants (1) that, except as
provided in Section 8.3 hereof with respect to certain identified
preexisting works licensed to Tivoli, it is the sole author of all
works employed by Pencom in preparing any and all Deliverables; (2)
that it has full and sufficient right to assign or grant the rights
and/or licenses granted in the Deliverables pursuant to this
Agreement; (3) that no Deliverables, including any preexisting works
addressed in Section 8.3 hereof, have been published under
circumstances that have caused a loss of copyright therein; and (4)
that no Deliverables, including any preexisting works addressed in
Section 8.3 hereof, infringe any patent, copyright, trademark, or
other intellectual property rights (including trade secrets), or
privacy or similar rights, of any third party, nor has any claim
(whether or not embodied in action, past or present) of such
infringement been threatened or asserted, nor is such a claim
pending, against Pencom (or, insofar as Pencom is aware, any entity
from which Pencom has obtained such rights).
c. Conformity, Performance, and Compliance. Pencom represents and
warrants (1) that all Deliverables shall be prepared in a
workmanlike manner and with professional diligence and skill, (2)
that all Deliverables will function on the machines and with the
operating systems for which they are designed and as further defined
in any individual Work Statement hereto, (3) that all Deliverables
will conform to the specifications and function set forth in the
Work Statement relating thereto, and (4) that Pencom will perform
all work called for by the Work Statement in compliance with
applicable law.
d. Pencom Representations. Pencom represents and warrants upon its
execution hereof and throughout the term of this Agreement and in
the performance of the work hereunder that:
1) All Pencom license agreements from third party licensors of
Pencom concerning the hardware and/or software which Pencom
uses in performing the work are in full force and effect,
2) no such condition(s) exist which would adversely affect
Pencom's ability to deliver the Deliverables at the milestones
or checkpoints called for in the Work Statement.
Section 12 TERM AND TERMINATION
12.1 Term of Ageement. This Agreement shall be effective upon the parties
execution of this Agreement, and shall remain in force for a period of two
(2) years, unless otherwise terminated as provided herein; provided,
however, that the Work Statement shall remain in effect after such
termination, until the Work Statement is terminated as provided herein or
performance thereunder is completed.
12.2 Termination of the Work. Tivoli may, at its sole option, terminate this
Agreement and the Work Statement, or any portion thereof, upon fifteen
(15) days written notice unless otherwise a different date is agreed upon
for an individual Work Statement. Upon receipt of notice of such
termination, Pencom shall inform Tivoli of the extent to which performance
has been completed through such date, and collect and deliver to Tivoli
whatever work product then exists, and in a manner prescribed by Tivoli.
Pencom shall be paid for all work performed through the date of
termination, provided that such payment shall not be greater than the
payment that would have become due if the work had been completed. Pencom
may not terminate the Agreement or Work Statement once Pencom has entered
into this Agreement and Work Statement except as may otherwise be provided
in the Work Statement. Upon termination of this Agreement or cancellation
of the license hereunder Pencom shall immediately (i) return the Software
Products and all copies of documentation to Tivoli or alternatively,
provide written certification that all copies
Tivoli/Pencom Software Task Order Agreement (November 20,1995) Page 6
of the Software Products and documentation have been destroyed, (ii) purge
all copies of the Software Products or any portion thereof from all
computers and from any computer storage device or medium on which Pencom
has placed or has permitted others to place the Software Products.
12.3 Termination for Default.
a. By Tivoli. If Pencom shall breach a material term and condition of
this Agreement, violate the terms of the Tivoli License Agreement
hereto for use of Tivoli Licensed Software, fall to meet a
Deliverables delivery milestone or checkpoint or fail to make
substantial progress in performing the work schedules called for in
the Work Statement thereby jeopardizing the project schedule in the
Work Statement, Tivoli may, after thirty (30) days' prior written
notice to Pencom and during which period if Pencom falls to remedy
such breach to Tivoli's satisfaction, terminate this Agreement and
Work Statement at no cost or liability to Tivoli, except for any
outstanding payments due at the time of Termination for work
completed by Pancom and accepted by Tivoli. Notwithstanding the
foregoing, for a material violation of the terms of the License
Grant herein for use of Tivoli Licensed Software, Tivoli may
terminate this Agreement and the license grant provided for Pencom's
use of the Tivoli Licensed Software shall immediately cease.
b. By Pencom. If Tivoli shall breach this Agreement by failing to make
payment(s) for the work as provided in the Work Statement, Pencom
may, after thirty (30) days' prior written notice to Tivoli and
during which period if Tivoli fails to remedy such breach, terminate
this Agreement and cease the work called for in the Work Statement.
In which case Tivoli's obligation to make any outstanding payments
due Pencom shall survive such termination.
c. Liquidation. If either party is liquidated, dissolved, or ceases to
carry on business on a regular basis as pertains to this Agreement
and the liquidating party's obligations under this Agreement are not
assumed by a successor or assignee, this Agreement may be terminated
by either party with thirty (30) days written notice to the other.
12.4 Consequences of Termination by Tivoli. Except as provided in Section
12.3.b above, upon termination of the Agreement by Tivoli as provided in
Sections 12.2 or 12.3 above Pencom shall immediately assign and deliver
all completed work product to Tivoli.
12.5 Consequences of Termination by Pencom. Notwithstanding any term and
condition in this Agreement to the contrary, upon termination of this
Agreement by Pencom solely as provided in Section 12.3.b for default of
payment by Tivoli, and without cure by Tivoli during the thirty (30) day
notice period, Tivoli shall assign and Pencom shall obtain all right and
title to Pencom Code embedded in the Deliverable which is completed at the
time of such termination.
12.6 Survival. In the event of any termination of this Agreement, Sections 9
through 13 hereof shall survive and continue in effect and shall insure to
the benefit of and be binding upon the parties and their legal
representatives, heirs, successors, and assigns.
Tivoli/Pencom Software Task Order Agreement (November 20, 1995) Page 7
Section 13 INDEMNIFICATION and LIMITATION OF LIABILITY
13.1 Indemnification.
a. Upon proper notice as specified herein, Pencom agrees to indemnify
and hold harmless Tivoli and its subsidiaries or affiliates under
its control, and their directors, officers, employees and agents,
and customers against any and all losses, liabilities, judgments,
awards and costs (including legal fees and expenses) arising out of
or related to any claim that Tivoli or its customers' use or
possession of the Deliverables, or licenses granted thereunder,
infringes or violates the copyright, trade secret or other
proprietary right of any third party and where such cause of action
directly relates to Pencom's work product, and Pencom shall, at its
sole expense, provide Tivoli with all information, data and
assistance reasonably required by Tivoli for Tivoli's defense
thereof and Pencom shall indemnify and hold harmless Tivoli for all
costs for Tivoli to defend and settle all suits or proceedings
arising out of the foregoing.
b. Upon proper notice as specified herein, Tivoli agrees to indemnify
and hold harmless Pencom and its subsidiaries or affiliates under
its control, and their directors, officers, employees and agents,
and customers against any and all losses, liabilities, judgments,
awards and costs (including legal fees and expenses) arising out of
or related to any claim against Pencom that Tivoli or its customers'
use or possession of the Deliverables, or the licenses granted
thereunder, infringes or violates the copyright, trade secret or
other proprietary right of any third party and where such cause of
action directly relates to Tivoli's, and not Pencom's, Code portion
of the Deliverable software, and Tivoli shall, at its sole expense,
defend and settle all suits or proceedings arising out of the
foregoing, and Pencom agrees to provide Tivoli with all information
and assistance reasonably required by Tivoli in its defense or
settlement thereof.
c. Either party is required to provide reasonably timely notice to
other party after it becomes aware of any claim that Tivoli or its
customers' use or possession of the Deliverables, or the licenses
granted hereunder, infringes or violates the copyright, trade secret
or other proprietary right of any third party. Notice must be in
writing specifying the nature of the claim and sent in the manner
specified in Section 18 hereof.
d. Either party shall be responsible for its own expense for the full
defense for which indemnification would be owed; provided, however,
that Tivoli shall be entitled to assume and conduct all such
defenses, and Tivoli shall be liable for its own expenses for the
defense of claims against Tivoli for which it is solely liable.
Either party shall, before settling any such action, obtain the
other party's written consent thereto, which consent shall not be
unreasonably withheld. Neither Pencom nor Tivoli shall be liable
hereunder for any settlement of any such claim made by the other
party without its prior written approval or consent.
e. In addition to the foregoing, should Tivoli or its customers' use of
the Deliverables, pursuant to its business, because of Pencom's work
product, be enjoined due to actual or alleged infringement of any
patent, trademark, copyright, trade secret or other proprietary
right of any third party, Pencom shall, at its sole option and
expense either:
1. Procure for Tivoli or its customers' the right to continue using
the Deliverables;
2. Replace or modify such Deliverables so it becomes non-infringing
(which modification or replacement shall not adversely affect the
specifications for, or the use or operation by, Tivoli or its
customers' of such Deliverables); or
3. If Pencom is unable under its best efforts to procure the right
to use, replace or modify the Deliverables, as described above,
Pencom shall reimburse Tivoli its work cost and/or royalties paid
hereunder for the Deliverables.
13.2 Limitation of Liability. Except as provided in this Section 12 hereof,
neither party shall be liable to the other for incidental or consequential
damages hereunder.
Tivoli/Pencom Software Task Order Agreement (November 20, 1995) Page 8
Section 14 MISCELLANEOUS
14.1 Force Majeure. Pencom shall be excused from delays in performing or from
its failure to perform hereunder to the extent that such delays or
failures result from causes beyond the reasonable control of such party;
provided, however, that in order to be excused from delay or failure to
perform, such party must act diligently to remedy the cause of such delay
or failure.
14.2 No Agency. Pencom, in rendering performance under the Work Statement
hereunder, is acting solely as an independent contractor. Tivoli does not
undertake by this Agreement or otherwise to perform any obligation of
Pencom, whether by regulation or contract. In no way is Pencom to be
construed as the agent or acting as the agent of Tivoli in any respect,
any other provisions of this Agreement or any Work Statements issued
hereunder notwithstanding. Nothing herein shall be construed as having
created a partnership or joint venture of any kind between the parties.
14.4 Section Headings; Exhibits. The section and subsection headings used
herein are for reference and convenience only, and shall not enter into
the interpretation hereof. The exhibits referred to herein and attached
hereto, or to be attached hereto, including the Work Statement, are
incorporated herein to the same extent as if set forth in full herein.
14.5 No Waiver. No delay or omission by either party hereto to exercise any
right or power occurring upon any noncompliance or default by the other
party with respect to any of the terms of this Agreement shall impair any
such right or power or be construed to be a waiver thereof. A waiver by
either of the parties hereto of any of the covenants, conditions, or
agreements to be performed by the other shall not be construed to be a
waiver of any succeeding breach thereof or of any covenant, condition, or
agreement herein contained. Unless stated otherwise, all remedies provided
for in this Agreement shall be cumulative and in addition to and not in
lieu of any other remedies available to either party in law, in equity, or
otherwise.
14.6 Authority of Pencom. Pencom has the sole right and obligation to
supervise, manage, contract, direct, procure, perform, or cause to be
performed all work to be performed by Pencom hereunder unless otherwise
provided herein Pencom shall not subcontract any of the work requested by
Tivoli under this Agreement without the prior written consent of Tivoli.
14.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
14.8 Notices. Under this agreement, if one party is required to give notice to
the other, such notice shall be deemed given if mailed by US. mail, first
class, postage prepaid, and addressed as follows (or as subsequently
noticed to the other party):
To Tivoli: To Pencom:
Tivoli Systems Inc.
Attn. Business Operations
0000 Xxxxxxx xx Xxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
14.9 No Assignment. Neither party may, without the prior written consent of the
other party, assign or transfer this Agreement or any obligation incurred
hereunder to any third party. Tivoli may transfer or assign its rights
hereunder to a third party who acquires Tivoli by merger, reorganization,
consolidation, or sale of all or substantially all of Tivoli's assets. Any
attempt to by Pencom to assign or transfer this Agreement in contravention
of this Section shall be void and of no force and effect.
14.11 Entire Agreement. This Agreement and the Exhibits annexed hereto,
constitute the entire agreement between the parties and as such supersedes
all other writings, understandings or agreements between the parties
concerning the subject matter hereof.
Tivoli/Pencom Software Task Order Agreement (November 20, 1995) Page 9
IN WITNESS WHEREOF, Tivoli and Pencom have caused this Agreement to be signed
and delivered by their duly authorized representatives, all as of the date
executed below.
TIVOLI SYSTEMS INC. (Tivoli) Pencom Software (Pencom)
By:/s/ Xxxxx X. Xxxxxx By:/s/ W. Xxxxx Xxxx
------------------------- ------------------------------
Name: Xxxxx Xxxxxx Name: W. Xxxxx Xxxx
Title: Vice President Title: President
Products Division
Date: November 20, 1995 Date: 12/6/95
Tivoli/Pencom Software Task Order Agreement (November 20, 1995) Page 10
AMENDMENT NO 1 TO
Tivoli Systems Inc. and Pencom Software Task Order Agreement
This amendment is made between the parties effective this 8th day of November
1996, to the Software Task Order Agreement (hereinafter the "Agreement") dated
November 20, 1995 between Pencom Software and Tivoli Systems Inc. The parties
agree to amend the Agreement as follows:
1. Pencom Software is no longer a division of Pencom Systems, Inc., but a
separate, independently owned corporation renamed as PSW Technologies Inc. The
Agreement is changed from Pencom Systems to PSW Technologies Inc. and the term
"Pencom" is changed to mean "PSW" wherever it appears in the Agreement.
2. Sections a, b, and c of the Compensation Schedule of Exhibit E of the
Agreement will be replaced by the following compensation plan:
o PSW will receive target compensation of 1.5871% of the annual Tivoli
Product Revenue (Projected to be $89M) net of any prior payments made in
1996 as defined in Exhibit E. This net amount will be invoiced by PSW on
or after December 31, 1996 and will be due Net 30 days after receipt. The
maximum payment inclusive of all prior payments for 1996 made pursuant to
Exhibit E shall be $1,412,500.
o PSW will receive an additional bonus of $137,500 for the General Available
Release (GA) delivery to Tivoli, for Manufacturing and Distribution, of
all of the following software ports which are currently scheduled to ship
on or before Xxxxxxxx 00, 0000; XXX 0.X, XXX 6.X, XXX 0, XXX 0, Xxxxxxx
X00, DG/UX 88, Sequent. Each of these ports consists of the Tivoli
Platform, Tivoli Courier, Tivoli Sentry, and Logfile Adapter Applications.
The Solaris X86 port also includes the Tivoli Admin Application. If these
deliveries are achieved PSW will invoice Tivoli on or after December 31,
1996 and payment will be due Net 30 days after receipt.
All other terms and conditions of the Agreement remain in full force and effect.
The parties have read this Amendment and agree to its terms by their execution
below.
Tivoli Systems Inc. PSW Technologies Inc.
By:/s/ Xxxxxx X. Xxxxxxxx By:/s/ Xxxxxxx Xxxxxx
----------------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: XXXXXXX XXXXXX
Title: Manager, Porting Services Title: CFO & VP OPERATIONS
Date: November 8,1996 Date: 11/12/96
