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EXHIBIT 10.43
LICENSING AGREEMENT: NT CLIENT BRIDGE
CONTENTS:
1. Definitions
2. Co-ordinators
3. Utilisation of Licence Works
4. Grant of Licence
5. Delivery
6. Term And Termination
7. Modifications and Enhancements
8. Royalties and Accounting
9. Marketing
10. Warranties
11. Indemnification
12. Limitations and Remedies
13. Trademarks, Trade Names and Publicity
14. Confidential Information
15. Dispute Escalation
16. Competitive Products and Services
17. Test of Early IBM Program Materials
18. Rights in Data
19. Inventions
20. General
Attachment A - Agreement for Disclosure of IBM Confidential Information
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This AGREEMENT by and between International Business Machines
Corporation with an address for purposes of this AGREEMENT at Xxx Xxxxxxx
Xxxx, Xxxxxx, Xxx Xxxx 00000 ("IBM") and Level 8 Systems, 0 Xxxx Xxxxx, Xxxxx
0000, Xxx Xxxx, Xxx Xxxx, 00000, XXX ("Level 8").
WHEREAS, Xxxxx 0 desires and IBM agrees to licence to Xxxxx 0, the
LICENSED WORKS described in this AGREEMENT in accordance with the terms and
conditions of this AGREEMENT for integration into the Level 8 Microsoft to
MQSeries Client Bridge PRODUCT.
NOW THEREFORE the parties agree as follows:
1. DEFINITIONS
"AGREEMENT" shall mean this AGREEMENT, its supplements and Attachments.
"CODE" shall mean computer programming code.
"CUSTOMERS" shall mean both internal and external end users of
PRODUCT(S) distributed by Level 8 or it's SUBSIDIARIES and/or it's authorised
distributors, dealers or remarketers.
"DERIVATIVE WORK" means a work based upon one or more pre-existing
works, such as a revision, enhancement, modification, translation,
abridgement, condensation, expansion or any other form in which a work may be
recast, transformed or adapted, and which, if prepared without authorisation
of the owner of the copyright in such pre-existing work would constitute a
copyright infringement under United States law. A work consisting of
editorial revisions, annotations, elaboration's, or other modifications
which, as a whole, represent an original work of authorship is a DERIVATIVE
WORK.
"DOCUMENTATION" shall mean manuals and other written materials that
relate to particular CODE.
"ENHANCEMENTS" shall mean changes or additions, other than MAINTENANCE
MODIFICATIONS, to object and source code and related documentation, that
improve functions, add functions or improve performance by changes in system
design or coding.
"ERROR" shall mean (1) any programming statement in CODE that renders
the CODE inoperable, causes the CODE to fail to meet the specifications
thereof, or causes
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incorrect results; or (2) an incorrect or incomplete statement or diagram in
DOCUMENTATION that causes DOCUMENTATION to be inaccurate or inadequate in any
material respect.
"GENERAL AVAILABILITY" or "GENERALLY AVAILABLE" or "GA" means, with
respect to PRODUCT(S), that such is generally available for shipment to
customers.
"HARMFUL CODE" means any computer code, programming instruction or set
of instructions that is intentionally and specifically constructed with the
ability to damage, interfere with or otherwise adversely affect computer
programmes, data files, or hardware without the consent or intent of the
computer user. This definition includes, but is not limited to,
self-propagating programming instructions commonly called viruses and worm.
"IBM PROGRAM MATERIALS" shall mean the Beta versions of i) complete
MQSeries for MVS/ESA VI release 1.1.4, and ii) IBM MQSeries for NT Client
CODE.
"INVENTION" means any invention, improvement, discovery, idea, concept,
know-how, or technique that either party makes, generates, first conceives or
reduces to practice during the term of this AGREEMENT and in performance of
this AGREEMENT.
"LICENSED CODE" shall mean the IBM MQSeries Client for Windows NT CODE.
LICENSED CODE shall include OBJECT CODE and SOURCE CODE for the
client-connection channel table which is used by IBM MQSeries client for
Windows NT code to map the IBM queue manager name to the LU6.2 or TCP/IP
address. If not otherwise specified all other elements of LICENSED CODE
shall be OBJECT CODE only. As detailed below:
1. Beta version of IBM's MQ for Windows NT product. (Client and server)
2. Beta version of Victory (MQ for MVS) VI.1.4
a. Without ASCII/EBCDIC data conversion
b. With data conversion.
3. Internal MQ for NT Server Tables for mapping client names.
a. By providing 3 source modules ..
AMQRCDFA.C, AMQRFILA.C and AMQRFLHA.C
"LICENSED DOCUMENTATION" shall mean DOCUMENTATION that relates to
LICENSED CODE, including documentation of the format of the client-connection
channel table which is used by IBM MQSeries for NT client code to map the IBM
queue manager name to the LU6.2 or TCP/IP address.
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"LICENSED WORK(S)" shall mean LICENSED CODE and LICENSED DOCUMENTATION,
any part or all of which may be referred to as LICENSED WORK, including any
MAINTENANCE MODIFICATIONS or ENHANCEMENTS.
"MAINTENANCE MODIFICATIONS" means any modification or revisions, other
than ENHANCEMENTS, to code or documentation that correct errors or provide
other incidental corrections.
"OBJECT CODE" shall mean CODE, substantially or entirely in binary form,
which is directly executable by a computer after suitable processing but
without the intervening steps of compilation or assembly.
"PLATFORM" means the combination of the operating system and hardware
architecture on which a PROGRAM operates.
"PROGRAM(S)" means data processing programming CODE consisting of a
plurality of instructions or statements in human readable (source code) or
machine readable (object code) form.
"PRODUCT(S)" shall mean Level 8's gateway between Microsoft's message
queuing product and IBM's MQSeries products. This gateway will run on MS
Window NT and will map MS message queuing and IBM MQSeries names, addresses,
parameters and protocols to each other. The gateway shall constitute an
offering consisting of PRODUCT CODE and PRODUCT DOCUMENTATION, created by
Xxxxx 0, including the LICENSED WORKS. Any reference to PRODUCT(S) shall
include the LICENSED WORK(S) incorporated into the PRODUCT(S). PRODUCT CODE
shall mean a CODE offering incorporating LICENSED CODE. PRODUCT
DOCUMENTATION shall mean a documentation offering incorporating LICENSED
DOCUMENTATION.
"RELATED MATERIAL(S)" shall mean IBM materials, other than the LICENSED
WORKS that are identified in supplements to this AGREEMENT, useful in the
design development and/or maintenance of PRODUCT(S). Such RELATED MATERIALS
may exist in written or machine readable form.
"SOURCE CODE" shall mean CODE, other than OBJECT CODE, and related
system documentation, comments and procedural code such as job control
language, which may be printed out or displayed in a form readable and
understandable by a programmer of ordinary skill.
"SUBSIDIARY" shall mean a corporation, company or other entity
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1) more than fifty percent (50%) of whose outstanding shares or
securities (representing the right to vote for the election of
directors or other managing authority) are, now or hereafter,
owned or controlled, directly or indirectly, by a party hereto, or
2) which does not have outstanding shares or securities, as may be the
case in a partnership, joint venture or unincorporated association,
but more than fifty percent (50%) of whose ownership interest
representing the right to make the decisions for such corporation,
company or other entity is, now or hereafter, owned or controlled,
directly or indirectly, by a party hereto; but such corporation,
company, or other entity shall be deemed to be a SUBSIDIARY only so
long as such ownership or control exist.
2. CO-ORDINATORS
2.1 Each party will designate a co-ordinator with authority to
represent it in all matters concerning the management of this AGREEMENT.
Written correspondence and notices will be copied to all the named
co-ordinators. Each party will provide the other prompt written notice of
replacement of such co-ordinators.
2.2 The Level 8 co-ordinator shall be:
MR. XXXXXXX XXXX
Level 8 Systems
0, Xxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000
XXX
Tel: 000 000 0000
Fax: 000 000 0000
2.3 The IBM co-ordinator shall be:
M XX X. XXXXXXXX IBM United Kingdom Ltd.
Xxxxxxx Xxxx
Xxxxxxxxxx
Xxxxxxxxx X000 0XX
Xxxxxxx
Tel: + 00 0000 000000
Fax:+ 00 0000 000000
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2.4 Each partys' employees, co-ordinators, managers or agents shall at
all times be considered to be employees of their respective employers. "Level
8" or "IBM" shall be deemed, unless the context otherwise requires, to refer
to and include, respectively, Xxxxx 0, Xxxxx 8's employees and agents and
IBM, and IBM's employees and agents.
3. UTILISATION OF LICENSED WORKS
3.1 Level 8 agrees that each LICENSED WORK licensed under this
AGREEMENT shall:
3.1.1 be functionally integrated into PRODUCT, either for licensing
as a single PRODUCT entity to third parties or for Level 8's internal use;
and be marketed in the regular course of business by Level 8 to their
SUBSIDIARIES, to their network of authorised distributors, to their dealers,
to their re-marketers or to their CUSTOMERS.
3.2 Level 8 shall not reverse assemble, reverse compile, reverse
engineer or otherwise translate any LICENSED CODE provided by IBM.
3.3 Level 8 shall ensure that it's SUBSIDIARIES, and authorised
third-party distributors, dealers and re-marketers agree to act in a manner
consistent with Level 8's obligations under this AGREEMENT.
3.4 Level 8 shall include a proprietary statement in the PRODUCT (both
object and source code versions), and DOCUMENTATION, which statement is
sufficient to protect IBM's copyright.
3.5 If Level 8 engages in marketing PRODUCT to the United States
Government, each PRODUCT code media label PRODUCT DOCUMENTATION must include
a legend substantially similar to the following: "Note to United States
Government Users - documentation and programs related to restricted rights.
Use, duplication or disclosure is subject to restrictions set forth in GSA
ADP Schedule Contract with Level 8 and/or licensors."
3.6 Level 8 shall make available to IBM a copy of each form of licence
agreement under which PRODUCTS are provided to CUSTOMERS. Such licence
agreement may be in the form of a "shrink wrapped" document affixed to the
PRODUCT package or such licence agreement as may be submitted to IBM. Unless
IBM rejects a proposed agreement, in writing, within ninety (90) days of
submission, it shall be deemed accepted.
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4. GRANT OF LICENCE
4.1 LICENSED CODE
IBM hereby grants to Level 8 a world-wide, non-exclusive licence to
execute, display and perform the LICENSED CODE only when it is integrated in
PRODUCT CODE. Such licence shall also include the further rights of Level 8
to reproduce and distribute, internally and externally, copies of LICENSED
CODE only when integrated in PRODUCT CODE in OBJECT CODE form. Level 8 shall
have the right to authorise others to distribute, but not to reproduce
PRODUCT CODE. Level 8 shall have no right to modify LICENSED CODE to produce
DERIVATIVE WORKS thereof unless the sole reason for the modification is to
correct an ERROR reported by IBM.
4.2 LICENSED DOCUMENTATION
IBM hereby grants to Level 8 a world-wide, non-exclusive licence to
reproduce non-confidential LICENSED DOCUMENTATION and prepare DERIVATIVE
WORKS thereof and to distribute, internally and externally copies of LICENSED
DOCUMENTATION and DERIVATIVE WORKS thereof only when integrated in PRODUCT
DOCUMENTATION.
4.3 IBM also grants to Level 8 the right to sub-licence it's
SUBSIDIARIES under the rights specified in 4.1 and 4.2. Each SUBSIDIARY so
sub-licensed shall be bound by the terms and conditions of this AGREEMENT as
if it were named herein, provided that Level 8 shall pay and account to IBM
for all royalties in respect of the exercise of any sub-licences granted
hereunder. Any sub-licence granted to a SUBSIDIARY shall terminate on the
date such SUBSIDIARY ceases to be a SUBSIDIARY.
5. DELIVERY
5.1 IBM agree to deliver one (1) copy/set of LICENSED WORKS and IBM
PROGRAM MATERIALS. The time and place of delivery and format and media of
LICENSED WORKS shall be mutually agreed between the IBM and Level 8
co-ordinators.
5.2 Level 8 agree to provide evaluation copies of PRODUCT to IBM if
required for CUSTOMER support. The number of copies, time and place of
delivery and format and media of PRODUCT shall be mutually agreed between the
IBM and Level 8 co-ordinators.
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6. TERM AND TERMINATION
6.1 This AGREEMENT shall commence upon signature by both parties and,
subject to the Termination provisions set out herein, shall terminate on 31st
December 1999.
6.2 Each party shall have the right to terminate this AGREEMENT in the
event of a material breach by the other party of its obligations herein. Such
termination shall be made by written notice to the other party and shall
become effective forty five (45) days after giving of such notice, unless the
other party shall have corrected the breach prior to the effective
termination date.
6.3 Neither party may terminate this AGREEMENT at any time without
cause.
6.4 Both parties agree to provide immediate written notification to the
other in the event that more than fifty percent (50%) of the outstanding
shares or securities (representing the right to vote for the election of
directors or other managing authority) of the said party are now, or
hereafter become, owned or controlled directly or indirectly by any third
party entity whether individual or corporate, the other party shall have the
right to terminate this AGREEMENT within ninety (90) days of the
notification. Such termination shall be made by written notice to the said
party and shall become effective immediately.
6.5 The expiration or termination of this AGREEMENT shall not affect
any rights or licences exercised or granted to Level 8 with respect to any
PRODUCT delivered to and installed in Level 8's CUSTOMERS prior to such
expiration or termination, and any corresponding royalty obligations of Level
8 hereunder, shall survive and continue. Except in the event of 6.2 above:
(a) Level 8 may fill any orders received by Xxxxx 0, its SUBSIDIARIES, and
its and their authorised distributors, dealers or remarketers and accepted
from CUSTOMERS prior to the effective date of termination, and; (b) Level 8
may continue to provide MAINTENANCE MODIFICATIONS and support to CUSTOMERS.
6.6 In the event of termination under 6.2 or 6.4 of this AGREEMENT
Level 8 shall not provide any ENHANCEMENTS to CUSTOMER PRODUCT installed base.
6.7 In the event of any termination or expiration of this AGREEMENT in
whole or in part then the provisions of the sections entitled:
WARRANTIES,
INDEMNIFICATION,
CONFIDENTIAL INFORMATION
ROYALTIES AND ACCOUNTING
LIMITATION OF REMEDIES, and
GENERAL
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shall survive and shall continue and shall bind the parties and their legal
representatives, successors, heirs and assigns.
6.8 Following expiry of this AGREEMENT, IBM agrees to consider in good
faith any request by Level 8 to extend this AGREEMENT for a further period.
7. MODIFICATIONS, ENHANCEMENTS AND SUPPORT
7.1 During the term of this AGREEMENT IBM may, at it's sole discretion,
offer to Level 8 MAINTENANCE MODIFICATIONS, ENHANCEMENTS and new GA levels to
the LICENSED WORKS subject to section 10.5 below. Should Level 8 accept such
an offer, this will be recorded as an update to this AGREEMENT and will be
subject to the terms and conditions of this AGREEMENT.
7.2 IBM shall have no installation, warranty or maintenance
responsibilities for any PRODUCTS.
7.3 IBM shall provide defect support to Xxxxx 0 for the LICENSED CODE
during the term of this AGREEMENT insofar that the defects are reproducible
on IBM's MQSeries for NT Client product.
7.4 Level 8 agrees to provide IBM with evaluation copies of PRODUCT for
support purposes upon written request by the IBM co-ordinator to the Level 8
co-ordinator.
8. ROYALTIES AND ACCOUNTING
8.1 Level 8 shall pay to IBM percentage royalties based on total world
wide PRODUCTS revenue received by Xxxxx 0 it's SUBSIDIARIES, it's their,
distributors, dealers and remarketers in the following stages:
A) 11% (eleven percent) of PRODUCTS revenue received by Xxxxx 0
for the period of 12 (twelve) calendar months following
PRODUCT GA.
B) 10% (ten percent) of PRODUCTS revenue thereafter received
by Level 8.
8.2 Royalties accrued for the preceding 3 (three) month period shall be
paid to IBM within 90 (ninety) days after the last day of each March, June,
September and December. Each payment shall be accompanied by a statement,
summarising the basis of
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calculating the amount of such payment. Further details of bank accounts and
payment process will be mutually agreed by the IBM and Level 8 co-ordinators.
8.3 For those PRODUCTS installed free of charge at Xxxxx 0, its
SUBSIDIARIES, distributors, dealers, remarketers and CUSTOMERS, royalties
shall be paid based on the mean average royalty amount per product paid in
the 3 (three) month accounting period of the installation in question.
8.4 It is understood and agreed that Level 8 may increase or decrease
any prices and/or charges relating to the PRODUCTS without notice to or
approval of IBM. Level 8 will make a good faith allocation to PRODUCTS
revenue in case of PRODUCTS bundling such as site licences.
8.5 Except as otherwise provided herein neither party shall be liable
for the expenses of the other party. No other payments or consideration,
except as provided herein will be made by either party except by mutual
agreement in writing.
9. MARKETING
9.1 Level 8 agrees that it hereby grants to IBM the right to
independently market PRODUCT. IBM is under no obligation to market PRODUCT.
9.2 Level 8 agrees that it will grant IBM the right to market PRODUCT.
IBM's right to market shall be based on most favoured terms, including but
not limited to price. Such marketing rights shall include the right to
license PRODUCT to its internal end users and CUSTOMERS as well as license
its remarketers, dealers, distributors and SUBSIDIARIES, who may in turn
remarket PRODUCT through their remarketer channels and direct channels.
10.0 WARRANTIES
10.1 Level 8 and IBM each represents and warrants to the other that it
is under no obligation or restriction, nor will it assume any such obligation
or restriction that does or would interfere or conflict with the performance
to be rendered under this AGREEMENT.
10.2 IBM represents and warrants to Level 8 that it has title to the
copyright for the LICENSED WORKS and/or that it has been licensed to grant
the rights and licences granted hereunder to Level 8.
10.3 IBM DOES NOT WARRANT THAT: A) THE LICENSED WORKS WILL MEET THE
REQUIREMENTS OF LEVEL 8, IT'S SUBSIDIARIES, OR IT'S AND
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THEIR DISTRIBUTORS, DEALERS OR REMARKETERS OR ANY OF THEIR CUSTOMERS, OR B) THE
OPERATION OF THE LICENSED CODE WILL BE UNINTERRUPTED OR ERROR FREE.
10.4 EXCEPT AS HEREINABOVE PROVIDED IN THIS SECTION 10.0 THE LICENSED
WORKS AND IBM PROGRAM MATERIALS ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY
KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10.5 The remedies for breach of any warranty under this section 10.0 are
subject to the limitations of sections 11.0 and 12.0 below.
11.0 INDEMNIFICATION
11.1 IBM will, at its own expense, defend Level 8 and its CUSTOMERS (to
the extent that Level 8 has agreed to defend its CUSTOMERS under Level 8's
standard agreements) against any claim that arises out of any alleged breach
of warranty given by IBM in subsection 10.2 above, or that arises out of any
claim that the LICENSED WORKS infringe the patent, copyright or trade secret
rights of a third party, and IBM will pay resulting costs, damages and
attorney's fees finally awarded by a court for such a claim, subject to
subsections 11.1a) through c) and 11.3 below:
a) IBM's obligation under this section 11.0 is conditioned on Level
8's agreement that if all or any of the LICENSED WORKS are, in IBM's opinion,
likely to become the subject of such a claim, Level 8 will permit IBM, at
IBM's option and expense, either to procure the right for Level 8 to continue
marketing and using such LICENSED WORKS or to replace or modify them so that
they become non-infringing while still providing the same functionality.
b) If neither the foregoing alternatives is available on terms which
are commercially reasonable, either party may terminate this AGREEMENT.
c) IBM shall have no obligation with respect to any claim: (i)
based upon Level 8's modification of LICENSED WORKS; (ii) based upon use of
LICENSED WORKS not authorised hereunder; (iii) based upon aspects of PRODUCT
not provided by IBM; or (iv) based upon use of such PRODUCT in combination
with equipment, data or other programs not provided by IBM.
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d) This subsection 11.1 states IBM's entire obligation to Level 8
regarding actions based on subsection 10.1 above. Other actions, including
those based on subsection 10.1 above, will be subject to limitations set
forth in section 12.0 below.
11.2 Level 8 will, at its own expense, defend IBM and its SUBSIDIARIES
against any claim that PRODUCT or any third party CODE and/or any Level 8
CODE in the PRODUCT, alone or in combination with any LICENSED CODE,
infringes a patent trademark copyright or trade secret right of a third party
or otherwise results in a claim against IBM not subject to the
indemnification under subsection 11.1 above.
11.3 Level 8 will, at its own expense, defend IBM and its SUBSIDIARIES
against any claim that arises out of any alleged misrepresentation made by
Level 8 or its SUBSIDIARIES, or its or their distributors, dealers, or
remarketers, to its CUSTOMERS or any breach of warranty or any representation
given by Level 8 in this AGREEMENT; or any breach of any obligation of Level
8 under this AGREEMENT.
11.4 Subject to subsection 11.5 below, Level 8 will pay resulting costs,
damages and attorney's fees finally awarded by a court for any claim
contemplated in subsections 11.2 or 11.3.
11.5 To qualify for such defence and payment, the indemnified party must:
1) give the indemnifying party prompt written notice of any such
claim; and
2) allow the indemnifying party to control the defence, and co-operate
with the indemnifying party in the defence and all related settlement
negotiations.
12.0 LIMITATIONS AND REMEDIES
12.1 In no event will either party be liable for any lost profits, lost
savings, incidental damages or other economic consequential damages, even if
advised of the possibility of such damages. In addition, neither party will
be liable for any damages claimed by the other party based on any third party
claim, except as provided in section 11.0 above, other than claims for
infringement of patents, copyrights or other intellectual property rights.
12.2 It is agreed that IBM's liability shall be unlimited for copyright
infringement. In all other cases direct damages shall be limited to $100,000
(one hundred thousand US dollars).
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12.3 It is agreed that Level 8's liability shall be unlimited for
copyright infringement. In all other cases direct damages shall be limited
to $100,000 (one hundred thousand US dollars).
13.0 TRADEMARKS, TRADE NAMES AND PUBLICITY
13.1 Except as otherwise provided herein or by separate written
agreement, each party agrees not to use the other party's name, trade names,
trademarks, or any other designation without prior written consent.
13.2 Level 8 will include an appropriate acknowledgement that MQSeries
is a trademark of IBM in any publications (including marketing literature and
advertising material) where MQSeries is used in conjunction with PRODUCT.
13.3 Level 8 will not juxtapose MQSeries directly with a Level 8 trade
name, trademark or any acronym therefor in the name of any MQSeries product,
regardless whether a visual connector is used between MQSeries and the trade
name or acronym therefor. For purposes of this AGREEMENT, a "trade name"
shall be defined as a name under which Level 8 transacts business.
13.4 Level 8 acknowledges that MQSeries, together with the goodwill of
the business symbolised thereby, are
13.5 Level 8 agrees not to take any action which will interfere with or
challenge IBM's rights in MQSeries.
13.6 Except as otherwise expressly provided to the contrary in this
AGREEMENT, nothing shall be construed as authorising Level 8 to use any IBM
trademark or trade name, or any trademark or trade name that is confusingly
similar to any IBM trademark or trade name.
13.7 When featuring the MQSeries trademark, Level 8 shall use the
artwork provided by IBM and adhere to any guidelines for such artwork use
that IBM may provide.
13.8 The terms and conditions of the AGREEMENT shall be treated by the
parties as INFORMATION as defined in Agreement HUR830D including any detail
or nature of LICENSED CODE.
13.9 Any press releases or public announcements which contain
information not previously announced relating to this AGREEMENT shall be made
only with the prior review and written consent of the other party.
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14. CONFIDENTIAL INFORMATION
14.1 Level 8 agree that the content of this contract is deemed
confidential and that they will not disclose it's content in part or whole,
to any third party without the prior written consent of IBM which shall not
be unreasonably withheld.
14.2 Any press releases or public announcements which contain
information not previously announced relating to this AGREEMENT shall be made
only with the prior review and written consent of the other party.
14.3 The parties agree that whenever possible, all information exchanged
will be non-confidential. Any disclosure of IBM confidential information
("INFORMATION") will be made under the terms of the AGREEMENT for the
Disclosure of IBM Confidential Information, Agreement Number HUR830D dated 14
September 1994 a copy of which is shown in Attachment A.14.3 No Level 8
information shall be deemed to be received in confidence by IBM unless, and
to the extent that, such information is covered by separate terms to be
agreed in writing by the parties.
14.4 For the avoidance of doubt the IBM MQFAP DOCUMENT and any IBM
Source code are IBM Confidential and subject to the terms of Agreement
HUR830D dated 14 September 1994 a copy of which is shown in Attachment A.
15. DISPUTE ESCALATION
15.1 In the event that a dispute arises between IBM and Level 8
pertaining to any matters related to this AGREEMENT, the following escalation
procedure shall apply:
15.2 The IBM Co-ordinator and the Level 8 Co-ordinator shall make a good
faith effort to resolve the dispute as soon as possible. In the event that
they cannot resolve such dispute within fifteen (15) business days, the
matter may, at the option of either party be submitted, for discussion and
resolution to the nominated senior executives within each party.
15.3 Submission of a dispute to all levels of management as described in
this dispute escalation provision shall be a prerequisite to giving notice of
termination for breach.
16.0 COMPETITIVE PRODUCTS AND SERVICES
16.1 Subject to section 17.0
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16.1.1 Nothing in this AGREEMENT shall be construed to limit or impair
any right of either party to market, directly or indirectly, other products
or services competitive with those offered by the other party.
16.1.2 IBM shall be free to market, directly or indirectly, the LICENSED
WORKS or any portion or combination of LICENSED WORKS, to others.
17.0 TEST OF EARLY IBM PROGRAM MATERIALS
17.1 IBM agrees to provide Level 8 with early beta versions of the IBM
PROGRAM MATERIALS.
17.2 Level 8 are authorised to use the IBM PROGRAM MATERIALS only on the
designated machines, a list of designated machines will be agreed by the IBM
and Level 8 co-ordinators, only for development and testing of PRODUCT. For
purposes of this AGREEMENT, use is defined as copying any portion of the IBM
PROGRAM MATERIALS into the designated machine(s) and/or transmitting them to
the designated machine(s) for processing of the machine instructions or
statements contained therein.
17.3 The license granted under this AGREEMENT for the designated
Machine(s) may be temporarily transferred to (1) backup Machine(s) if the
designated Machine(s) is/are inoperative, and (2) another machine for
assembly or compilation of the IBM PROGRAM MATERIALS If the configurations of
the designated Machine(s) are such that the IBM Program Materials cannot be
assembled or compiled on the designated Machine(s).
17.4 Level 8 shall not copy, in whole or part, without IBM's written
permission, the IBM PROGRAM MATERIALS which are provided in printed form
under this Agreement. Any IBM PROGRAM MATERIALS which are provided in
machine-readable form may be copied, in whole or in part, in printed or
machine-readable form in sufficient number for your use with the designated
Machine(s). Level 8 agree to maintain appropriate records of the number and
location of all such copies which, together with the original of the IBM
PROGRAM MATERIALS, shall be the property of IBM. If a copyright notice is
included on the IBM PROGRAM MATERIALS, Level 8 will reproduce and include the
copyright notice, in accordance with the copyright in instructions provided
by IBM, on any such copies.
17.5 No right to use, print, copy or display the IBM Program Materials,
in whole or in part, is granted except as expressly provided in this
Agreement. You shall not reverse assemble, reverse compile, or otherwise
translate the IBM PROGRAM MATERIALS.
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18.0 RIGHTS IN DATA
18.1 Level 8 agree that IBM may utilise all written reports,
suggestions, improvements and any other materials, information, ideas,
concepts and know-how (including corrections to problems in the LICENSED
WORKS and IBM PROGRAM MATERIALS) whether written or oral, furnished by Xxxxx
0 to IBM in connection with this AGREEMENT for all business purposes, without
accounting to Level 8. Level 8 grant IBM a world-wide, unrestricted,
irrevocable and royalty-free license to include the foregoing in any IBM
licensed programs or other IBM offering.
19. INVENTIONS
19.1 An INVENTION made within the term of and in performance of this
AGREEMENT will be treated as follows:
a) if made by personnel of Level 8 , it shall be the property of Level
8. Level 8 hereby grants to IBM an irrevocable, nonexclusive, world-wide,
paid-up license under such invention, all patent applications filed
therefore, and all patents issued thereon.
b) if made by personnel of both parties, it and all patent
applications filed therefor and all patents issued thereon shall be jointly
owned by the parties. Each party shall have the right to grant licences to
third parties or assign its rights therein without accounting to the other
party.
19.2 All expenses incurred in obtaining and maintaining any such jointly
owned patent shall be equally shared, but if either party shall elect not to
file a patent application in any country the other shall have the right to
obtain and maintain a patent in that country at its or their own expense and
shall have full control of the prosecution and maintenance thereof even
though title thereto shall remain joint as aforesaid.
19.3 All licenses granted to either party include the unrestricted right
to make, have made, use, lease, sell or otherwise transfer any apparatus, and
to practice any method, covered by the INVENTION. Such license shall include
the right of the licensee to grant sublicenses to its SUBSIDIARIES.
19.4 Nothing in this section grants any rights under any copyrights of
either party.
19.5 Except as otherwise specifically provided herein, nothing contained
in this AGREEMENT shall be deemed to grant any license under any patent or
patent applications arising out of any other inventions of either party.
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20.0 GENERAL
20.1 Nothing contained in this AGREEMENT shall relieve either party of
any other duties or obligations or other performance called for in any other
agreement.
20.2 Level 8 may not assign its rights or delegate or subcontract its
duties or obligations under this AGREEMENT without prior written consent from
IBM. Any attempt to do so is void.
20.3 Each party is and shall remain an independent contractor as to the
other with respect to all performance rendered pursuant to this AGREEMENT.
Neither party nor any employee of either party shall be considered an
employee or agent of the other for any purpose. Neither party nor its
employees shall have authority to bind or make commitments on behalf of the
other party for any purpose and shall not hold itself or themselves out as
having such authority. Each party assumes full responsibility for its actions
and the actions of its personnel in rendering performance pursuant to this
AGREEMENT, and each party shall have sole responsibility for the supervision,
daily direction and control, payment of salary (including withholding of
income taxes and social security), worker's compensation, disability benefits
and the like of its personnel. Each party assumes fall responsibility for
the acts of all of its subcontractors.
20.4 Neither party shall be responsible for any delay in its performance
or failure to fulfil its obligations under this AGREEMENT due to causes
beyond its reasonable control, provided however, each party shall in good
faith attempt to remedy such failure or delay.
20.5 Neither party may bring an action, regardless of form arising out
of this AGREEMENT, more than two years after the cause of action has arisen.
20.6 If there is a conflict between the terms and conditions of this
AGREEMENT and its Attachment, those of the AGREEMENT prevail. Except as
expressly modified by the Attachment, the terms and conditions of this
AGREEMENT remain in full force and effect.
20.7 If any provision of this AGREEMENT is held by a court of competent
jurisdiction to be contrary to law, the remaining provisions of the AGREEMENT
will remain in full force and effect.
20.8 Each party shall, at its own expense, comply with any governmental
laws, statute, ordinance, administrative order, rule or regulation relating
to its duties, obligations and
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performance under this AGREEMENT and shall procure all licences and pay all
fees and other charges required thereby.
20.9 Both parties shall comply with all applicable government export
laws and regulations.
20.10 The parties hereby expressly waive any right to jury trial and
agree that any proceeding hereunder shall be tried by a judge without a jury.
20.11 All notices, requests, consents and other communications under
the AGREEMENT shall be in writing and shall be effective only upon receipt.
All such written notices shall be delivered by a traceable method prepaid, to
the AGREEMENT co-ordinators.
20.12 The laws of state of New York govern this AGREEMENT and the
relationship which arises as a result of this AGREEMENT, and in the event of
any dispute arising the courts of the state of New York shall have
non-exclusive jurisdiction.
20.13 The section references herein are for the purpose of
convenience only.
20.14 Any loans by either party to the other will be subject to
mutually agreed terms and conditions.
20.15 This AGREEMENT may only be amended in writing. Such amendment
shall only be effective if countersigned by both parties. Any reproduction
of this AGREEMENT by reliable means will be considered an original of this
document.
20.16 Any reference to IBM and Level 8 includes their SUBSIDIARIES.
20.17 Wherever consent or approval is required from a party, such
approval shall not be unreasonably withheld or delayed.
20.18 Failure by either party to insist on strict performance or to
exercise a right when entitled does not prevent that party from doing so at a
later time in relation to that default or a subsequent one.
20.19 This statement of the AGREEMENT supersedes all proposals or
other prior agreements, oral or written, and all other communications between
the parties relating to this subject. The parties acknowledge that they have
read this AGREEMENT and its Attachments, understand them, and agree to be
bound by their terms and conditions. Further, they agree that the complete
and exclusive statement of the agreement between the parties relating to this
subject consists of 1) this AGREEMENT, 2) the Attachment and 3) any
amendments thereto. ("AGREEMENT")
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SIGNED FOR AND ON BEHALF OF IBM SIGNED FOR AND ON BEHALF OF LEVEL 8
/s/ /s/
----------------------------------- -----------------------------------
Authorised Signature Authorised Signature
XXXXX X. XXXXX XXXXXX X. XXXXXXXXX
----------------------------------- -----------------------------------
Name Name
SOFTWARE CONTRACT RELATIONS MANAGER PRESIDENT
----------------------------------- -----------------------------------
Title Title
1ST MARCH 1996 MARCH 6, 1996
----------------------------------- -----------------------------------
Date Date
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