Preview of our top selling License Agreement
EDS / ServiceWare - Master Software License Agreement
Confidential portions of this Exhibit have been omitted and are identified by square brackets ([ ]) and three asterisks (***). Such material has been separately filed with the Securities and Exchange Commission pursuant to a request for confident
ial treatment.
MASTER SOFTWARE LICENSE AGREEMENT
ELECTRONIC DATA SYSTEMS CORPORATION
SERVICEWARE TECHNOLOGIES, INC.
JUNE 30, 2000 TABLE OF CONTENTS
MASTER SOFTWARE LICENSE AGREEMENT
ARTICLE 1. AGREEMENT, TERM, AND DEFINITIONS.......................................1
1.01 AGREEMENT AND TERM.____________________________________________________1
1.02 CERTAIN DEFINITIONS.___________________________________________________1
ARTICLE 2. PURCHASE ORDERS........................................................2
2.01 ISSUANCE AND ACCEPTANCE OF PURCHASE ORDERS.____________________________2
2.02 EVALUATION PURCHASE ORDERS.____________________________________________3
2.03 CANCELLATION OF PURCHASE ORDERS._______________________________________3
ARTICLE 3. PROVISION OF LICENSED SOFTWARE AND SERVICES............................3
3.01 GENERAL._______________________________________________________________3
3.02 TRANSPORTATION OF LICENSED SOFTWARE.___________________________________3
3.03 RISK OF LOSS.__________________________________________________________4
3.04 INSTALLATION OF LICENSED SOFTWARE._____________________________________4
3.05 RIGHT TO CANCEL FOR DELAYS.____________________________________________4
3.06 SERVICES IN GENERAL.___________________________________________________4
3.07 TIME AND MATERIALS SERVICES.___________________________________________5
3.08 USE OF EXISTING MATERIALS._____________________________________________6
3.09 FURTHER ACTS.__________________________________________________________6
3.10 EDS BUSINESS PRACTICES.________________________________________________6
3.11 TIME OF PERFORMANCE____________________________________________________6
3.12 EDUCATION SERVICES.____________________________________________________6
ARTICLE 4. PROVISION OF LICENSED SOFTWARE.........................................6
4.01 ACCEPTANCE OF LICENSED SOFTWARE._______________________________________6
4.02 GRANT OF LICENSE.______________________________________________________7
4.03 TRANSFER OF LICENSED SOFTWARE._________________________________________7
4.04 OWNERSHIP OF LICENSED SOFTWARE AND MODIFICATIONS.______________________7
4.05 PROPRIETARY MARKINGS.__________________________________________________8
4.06 DUPLICATION OF DOCUMENTATION.__________________________________________8
4.07 PROTECTION OF LICENSED SOFTWARE._______________________________________8
4.08 LICENSED SOFTWARE SUPPORT AND MAINTENANCE SERVICES.____________________8
4.09 LICENSED SOFTWARE SUPPORT AND MAINTENANCE SERVICES OPTIONS.____________9
i 4.10 PROVISION OF SOURCE CODE._____________________________________________10
4.11 ACQUISITION OF THIRD PARTY SOFTWARE.__________________________________10
4.12 [INTENTIONALLY LEFT BLANK]____________________________________________10
4.13 RESALE OF PRODUCTS BY EDS.____________________________________________11
4.14 DIVESTITURE OF BUSINESS.______________________________________________11
ARTICLE 5. WARRANTIES, INDEMNITIES, AND LIABILITIES..............................12
5.01 WARRANTY._____________________________________________________________12
5.02 PROPRIETARY RIGHTS INDEMNIFICATION.___________________________________13
5.03 CROSS INDEMNIFICATION.________________________________________________13
5.04 LIMITATION OF LIABILITY.______________________________________________13
5.05 INSURANCE.____________________________________________________________14
5.06 SURVIVAL OF ARTICLE.__________________________________________________14
ARTICLE 6. PAYMENTS TO SUPPLIER..................................................14
6.01 CHARGES, PRICES, AND FEES FOR LICENSED SOFTWARE AND SERVICES._________14
6.02 MODIFICATIONS TO CHARGES._____________________________________________15
6.03 AUTO PAYMENT._________________________________________________________15
6.04 PAYMENT THROUGH INVOICING.____________________________________________16
6.05 TAXES.________________________________________________________________16
ARTICLE 7. TERMINATION...........................................................17
7.01 TERMINATION FOR CAUSE.________________________________________________17
7.02 TERMINATION FOR INSOLVENCY OR BANKRUPTCY._____________________________17
7.03 TERMINATION FOR NON-PAYMENT.__________________________________________17
7.04 TERMINATION OF SOFTWARE LICENSE.______________________________________18
7.05 RIGHTS UPON TERMINATION.______________________________________________18
7.06 RETURN OF MATERIALS.__________________________________________________18
ARTICLE 8. MISCELLANEOUS.........................................................18
8.01 BINDING NATURE, ASSIGNMENT, AND SUBCONTRACTING._______________________18
8.02 AUTHORITY TO CONTRACT.________________________________________________18
8.03 COUNTERPARTS._________________________________________________________19
8.04 HEADINGS._____________________________________________________________19
8.05 AUTHORIZED AGENCY.____________________________________________________19
8.06 RELATIONSHIP OF PARTIES.______________________________________________19
8.07 CONFIDENTIALITY.______________________________________________________19
8.08 MEDIA RELEASES._______________________________________________________20
8.09 DISPUTE RESOLUTION.___________________________________________________20
ii
8.10 PROPOSALS AND SPECIAL PROJECTS._______________________________________20
8.11 GOVERNMENTAL CUSTOMERS._______________________________________________20
8.12 INTERNATIONAL BUSINESS._______________________________________________21
8.13 COMPLIANCE WITH LAWS._________________________________________________21
8.14 EXPORT._______________________________________________________________21
8.15 NOTICES.______________________________________________________________21
8.16 FORCE MAJEURE.________________________________________________________22
8.17 SEVERABILITY._________________________________________________________22
8.18 WAIVER._______________________________________________________________22
8.19 REMEDIES._____________________________________________________________22
8.20 SURVIVAL OF TERMS.____________________________________________________22
8.21 NONEXCLUSIVE MARKET AND PURCHASE RIGHTS.______________________________22
8.22 GOVERNING LAW.________________________________________________________23
8.23 ENTIRE AGREEMENT._____________________________________________________23
LIST OF EXHIBITS
EXHIBIT A:
EDS BUSINESS PRACTICES
EXHIBIT B:
CHARGES, PRICES, AND FEES
EXHIBIT C:
THIRD PARTY SYSTEM ACCESS AGREEMENT
EXHIBIT D:
INTENTIONALLY LEFT BLANK
EXHIBIT E:
EDUCATION SERVICES
EXHIBIT F:
DIRECT COMPETITORS
MASTER SOFTWARE LICENSE AGREEMENT
THIS MASTER SOFTWARE LICENSE AGREEMENT (the "Agreement"), dated June 29, 2000 (the "Effective Date"), is between SERVICEWARE TECHNOLOGIES
, INC., a Delaware corporation ("Supplier"), and ELECTRONIC DATA SYSTEMS CORPORATION, a Delaware corporation ("EDS").
W I T N E S S E T H:
WHEREAS, EDS desires to have the right to license computer software programs and to obtain services from Supplier from time to time; and
WHEREAS, Supplier is willing to provide computer software programs and services to EDS in accordance with the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises, and other good and valuable consideration received and to be received, the receipt and sufficiency of which are hereby acknowledged, Supplier and EDS agree as follows:
ARTICLE 1. AGREEMENT, TERM, AND DEFINITIONS
1.01 AGREEMENT AND TERM.
The parties agree that the terms and conditions of this Agreement apply to
the provision of products and services to EDS by Supplier and Supplier
agrees that products and services which Supplier generally makes available
to other customers shall be made available to EDS under the terms and
conditions of this Agreement. The initial term of this Agreement shall be
five (5) years commencing on the Effective Date. The Agreement shall
automatically renew for successive two (2) year renewal terms thereafter
unless either party provides the other party written notice of its intent
not to renew not less than sixty (60) days prior to the expiration of the
initial or any renewal term.
1.02 CERTAIN DEFINITIONS.
The following definitions apply to this Agreement:
(a) "Affiliate" means any entity controlling, controlled by or under
common control with EDS. For purposes of this Agreement, control
means operational control in which the controlling entity has
either (i) at least fifty percent (50%) of the equity interest, or
(ii) the maximum percentage of the equity interest allowed by
local law, based on the entity's location or state of
incorporation, as applicable, whichever is less.
(b) "Applicable Specifications" means the functional, performance,
operational, compatibility, and other specifications or
characteristics of a Product described in applicable Documentation
and such other specifications or characteristics of a Product
agreed upon in writing by the parties.
(c) "Direct Competitor" shall mean the direct competitors of Supplier.
The current list of Direct Competitors is attached hereto as
Exhibit F, and shall include such companies' successors and
assigns. Supplier reserves the right to add additional companies
to Exhibit F as it determines in good faith to be its direct
competitor(s).
(d) "Documentation" means user guides, operating manuals, education
materials, product descriptions and specifications and technical
manuals relating to the Products or used in conjunction with the
Services, whether distributed in print, magnetic, electronic, or
video format, in effect as of the date (i) a Product is shipped to
or is accepted by EDS, as applicable, or (ii) the Service is
provided to EDS.
(e) "Employee" means those employees, agents, subcontractors,
consultants, and representatives of Supplier provided or to be
provided by Supplier to perform Services pursuant to this
(f) "Existing Materials" means any confidential or proprietary
materials which (i) belong to third parties, (ii) Supplier has a
pre-existing intellectual property interest, or (iii) are
developed outside of its performance of this Agreement without
reference to the other parties intellectual property or
confidential information.
(g) "Licensed Software" means computer programs in object code
(including micro code), provided or to be provided by Supplier
pursuant to this Agreement as set forth on Exhibit B. The
definition of Licensed Software also includes any enhancements,
translations, modifications, updates, releases, or other changes
to Licensed Software which are provided or to be provided as part
of Supplier's performance of warranty Service obligations or
pre-paid support and maintenance Services pursuant to this
(h) "Outsourcer" means a company that uses the Product to provide
services for another company for products other than those sold to
that other company by the Outsourcer, in exchange for fees or
other compensation.
(i) "Products" means, individually or collectively as appropriate,
Licensed Software, Documentation, and Work Products (as later
defined in this Agreement), provided or to be provided by Supplier
pursuant to this Agreement.
(j) "Services" includes, but is not limited to, installation,
education, acceptance testing, support, maintenance, development,
consulting, warranty, and time and materials services, provided or
to be provided by Supplier pursuant to this Agreement.
(k) "Site" means geographically contiguous buildings, each of which,
in whole or in part, is occupied or accessed by EDS or a customer
of EDS. "Geographically contiguous" means adjacent tracts or
parcels of real property separated, if at all, only by publicly
dedicated rights of way or private easements.
(l) "Work Product" means (in any form including source code) any and
all ideas, processes, methods, programming aids, formulas,
manufacturing techniques, mask works, reports, programs, manuals,
tapes, card decks, listings, software, developed products,
flowcharts and systems and any improvements, enhancements, or
modifications to any of the foregoing, which are developed,
prepared, conceived, made, or suggested by any Employee or by
Supplier as part of the performance of Services (except in
connection with Supplier's performance of warranty Service
obligations or pre-paid support Services) pursuant to this
Agreement, except Existing Material.
ARTICLE 2. PURCHASE ORDERS
2.01 ISSUANCE AND ACCEPTANCE OF PURCHASE ORDERS.
EDS and Supplier agree that, except for resale of the Licensed
Software, EDS will be ordering the Licensed Software for use by EDS on
a project by project basis (each a "Project"). EDS will issue to
Supplier written purchase orders identifying the Products and Services
EDS desires to obtain from Supplier. Each such Purchase Order shall
indicate the Product being ordered, the license being purchased, and
the Project for which the Product will be used. Such purchase orders
shall be consistent with the terms and conditions of this Agreement.
Supplier shall accept purchase orders or alterations thereto which do
not establish new or conflicting terms and conditions from those set
forth in this Agreement. Supplier shall also accept purchase orders
incorporating terms and conditions which have been separately agreed
upon in writing by
the parties, such as special pricing offers. Supplier shall promptly
accept a purchase order by providing to EDS a written or a verbal
acceptance of such purchase order, or by commencing performance
pursuant to such purchase order. EDS' Purchase Orders submitted to
Supplier from time to time with respect to Supplier Products to be
purchased hereunder shall be governed by the terms of this Agreement.
Nothing contained in any such Purchase Order shall in any way modify
such terms of purchase or add any additional terms or conditions except
otherwise agreed in writing by the Parties. Neither Supplier's
commencement of performance nor its delivery of any Supplier Products
that are the subject of any purchase order shall be deemed or construed
to constitute acceptance of any additional or inconsistent terms or
conditions contained in any purchase order.
Purchase orders or alterations thereto accepted in accordance with this
Section are referred to as "Purchase Orders." EDS shall have no
responsibility or liability for Products or Services provided without a
Purchase Order.
2.02 EVALUATION PURCHASE ORDERS.
EDS may issue a Purchase Order to Supplier for Licensed Software
evaluation by EDS at no charge for an evaluation period agreed upon by
the parties. EDS may use the evaluation copy solely for its own
internal evaluation and shall not copy, alter or otherwise distribute
such evaluation copy. Unless otherwise agreed in a Purchase Order, EDS
shall pay all related transportation and insurance costs. Such Licensed
Software shall be protected by EDS in accordance with the
non-disclosure requirements specified in this Agreement which are
applicable to Licensed Software. At the conclusion of the evaluation
period, EDS shall have the option to acquire such Licensed Software
pursuant to a purchase order issued pursuant to this Agreement or to
return such Licensed Software to Supplier at Supplier's expense without
obligation to Supplier.
2.03 CANCELLATION OF PURCHASE ORDERS.
Except asotherwise agreed upon by the parties, EDS may cancel all or a
portion of a Purchase Order relating to Product(s) or Services, without
charge or penalty up to five (5) calendar days prior to the scheduled
delivery date of the affected Product(s) or the scheduled performance
of Services, provided that EDS shall pay for Services already performed
prior to the effective date of such notice. In the event EDS cancels a
Purchase Order or any portion thereof for Product(s) within five (5)
calendar days of the scheduled delivery date, as Supplier's sole and
exclusive remedy and EDS' sole liability, EDS shall reimburse Supplier
the direct, verifiable, non-recoverable expenses incurred by Supplier
as a result of such cancellation.
ARTICLE 3. PROVISION OF LICENSED SOFTWARE AND SERVICES
3.01 GENERAL.
EDS is entitled to obtain Licensed Software and Services for the
benefit of and use by Affiliates of EDS. Such Affiliates and their
respective employees are entitled to use the Licensed Software and
Services in accordance with this Agreement and have and are entitled to
all rights, benefits, and protections granted to EDS pursuant to this
Agreement with respect to such Licensed Software and Services. However,
an Affiliate of EDS shall only be entitled to obtain Licensed Software
and Services directly from Supplier pursuant to this Agreement if EDS
so provides written notice to Supplier. EDS is responsible for
compliance by its Affiliates with the terms and conditions set forth in
this Agreement. EDS and its Affiliates have the right to transfer,
license or remarket the Licensed Software and Services to third parties
as set forth in this Agreement.
3.02 TRANSPORTATION OF LICENSED SOFTWARE.
Supplier shall deliver up to 100 copies per month of the Licensed
Software to EDS on the delivery date set forth in the applicable
Purchase Order or as otherwise agreed upon by the parties. In the event
that EDS orders more than 100 copies per month of the Licensed
Software, Supplier shall deliver such excess within the later of: (i)
three weeks of receipt of the applicable Purchase Orders, or (ii) the
delivery date requested
in the applicable Purchase Order(s). Costs for transportation of
Licensed Software shall be paid by Supplier. The method and mode of all
transportation shall be those selected by Supplier.
3.03 RISK OF LOSS.
All risk of loss of, or damage to, Licensed Software shall be borne by
Supplier until receipt of delivery of such Licensed Software by EDS.
Supplier agrees to insure Licensed Software until receipt of delivery
of such Licensed Software by EDS. If loss to or damage of Licensed
Software occurs prior to receipt of delivery by EDS, Supplier shall
immediately provide a replacement item or, if Licensed Software is not
immediately replaceable, Supplier shall use commercially reasonable
effort to provide a replacement for the Licensed Software on a priority
3.04 INSTALLATION OF LICENSED SOFTWARE.
If installation is set forth in the governing Purchase Order or is
included in the Charge (as later defined) for Licensed Software,
Supplier shall install Licensed Software in good working order at the
designated location on or before the installation date set forth in the
applicable Purchase Order or as otherwise agreed upon by the parties.
Installation Services shall include performance of Supplier's usual and
customary diagnostic tests to determine the operational status of the
Licensed Software. Supplier shall inform EDS of any education Services
which are included with installation, and such education may be
performed at a time mutually agreed upon by Supplier and EDS.
3.05 RIGHT TO CANCEL FOR DELAYS.
In the event of a delay in delivery of all or any portion of Licensed
Software listed on a Purchase Order or Licensed Software listed on a
series of Purchase Orders which relate to a specific project or request
for proposal (the Licensed Software listed on such series of Purchase
Orders referred to as "Related Licensed Software"), or in the event of
a delay in the performance of Services which is not excused in this
Agreement, EDS may cancel without charge all or any portion of the
Licensed Software, Related Licensed Software or Services for which
delivery or performance has been so delayed. If, in EDS's reasonable
opinion, the delivered Licensed Software or Related Licensed Software
are not operable without the remaining undelivered Licensed Software or
Related Licensed Software, EDS may, at Supplier's expense, return any
delivered Licensed Software or Related Licensed Software to Supplier.
EDS shall not be liable for any expenses incurred by Supplier pursuant
to this Section 3.05 for canceled, undelivered, or returned Licensed
Software or Related Licensed Software. EDS shall receive a refund of
all amounts paid to Supplier with respect to the canceled and/or
returned Licensed Software, Related Licensed Software and Services.
3.06 SERVICES IN GENERAL.
In connection with the performance of any Services pursuant to this
Agreement:
(a) Supplier warrants that Employees shall have sufficient skill,
knowledge, and training to perform Services and shall perform such
Services in a professional and workmanlike manner. Further,
Supplier warrants that it will provide sufficient Employees to
complete the Services ordered within the applicable time frames
agreed to by Supplier and EDS.
(b) Supplier warrants that all Employees utilized by Supplier in
performing Services are under a written obligation to Supplier
requiring Employee: (i) to maintain the confidentiality of
information of Supplier's customers, and (ii) if such Employee is
not a full-time employee whose work is considered a "work for
hire" under Section 101 of the United States Copyright Code, to
assign all of Employee's right, title, and interest to Supplier in
and to any Work Product which is developed, prepared, conceived or
made by such Employee while providing Services on behalf of
Supplier to which the Employee does not have preexisting rights.
(c) Supplier shall provide for and pay the compensation of Employees
and shall pay all taxes, contributions, and benefits (such as, but
not limited to, workers' compensation benefits) which an
employer is required to pay relating to the employment of employees.
EDS shall not be liable to Supplier or to any Employee for Supplier's
failure to perform its compensation, benefit, or tax obligations.
Supplier shall indemnify, defend and hold EDS harmless from and against
all such taxes, contributions and benefits and will comply with all
associated governmental regulations related thereto, including the
filing of all necessary reports and returns.
(d) Employees performing Services in the United States must be United
States citizens or lawfully admitted in the United States for
permanent residence or lawfully admitted in the United States
holding a visa authorizing the performance of Services on behalf
of Supplier.
(e) If EDS intends to provide an Employee performing Services in the
United States, Canada and/or Mexico with unescorted access to an
EDS location, Supplier shall allow EDS or its designated third
party to conduct a background investigation and drug screening
("Investigation") of such Employee. In connection with such
Investigation EDS shall provide to Supplier a standard form
authorizing the Investigation and Supplier shall promptly secure
the completion of such form by the Employee. Any and all
information obtained in connection with an Investigation of any
Employee or acquired or made known during such Investigation shall
be deemed confidential and shall not be revealed to persons
without a bona fide need to know. If, after reviewing the results
of an Investigation, EDS elects not to accept an Employee for
performance of Services under this Agreement, Supplier agrees to
not utilize such Employee in the performance of Services. EDS
shall waive the Investigation for an Employee if Supplier provides
EDS with written confirmation that: (i) Supplier has conducted a
background and drug screening investigation of such Employee with
satisfactory results, or (ii) the Employee has been employed with
Supplier for at least five (5) years in good standing.
3.07 TIME AND MATERIALS SERVICES.
If available from Supplier, EDS may obtain on a time and materials
basis from Supplier consulting, development and other Services
(excluding maintenance and support Services which are provided pursuant
to other sections of this Agreement) agreed upon by the parties in
accordance with the terms and conditions set forth below and in the
Section of this Agreement titled "Services in General".
(a) If EDS is dissatisfied with the performance of a Supplier
employee performing Services (excluding maintenance and
support Services which are provided pursuant to other sections
of this Agreement) pursuant to this Agreement, EDS may request
a change in the employee performing such services and will
document the request via an agreed upon change request
(b) EDS shall reimburse Supplier for reasonable expenses incurred
by Employees in the performance of Services (if requested by
Supplier in advance and approved by EDS) which are related to
travel, lodging, and meals; such expenses shall be reimbursed
in accordance with EDS' guidelines for its own employees.
(c) Supplier shall require Employees performing Services at an EDS
location to comply with applicable EDS security and safety
regulations and policies.
(d) Supplier shall establish and shall retain, for a period of
three (3) years following the performance of time and
materials Services, records which adequately substantiate the
applicability and accuracy of Charges for such Services and
related expenses to EDS. Upon receipt of reasonable advance
notice from EDS, Supplier shall produce such records for audit
by EDS.
(e) The parties agree that the ownership of any Work Product
created by or on behalf of Supplier in its performance of time
and material Service shall be negotiated in good faith by the
parties and
documented in a separate agreement supplemental to this Agreement. Such
separate agreement shall be signed prior to the commencement of
Services. In the event an agreement is not signed and Supplier
commences performance of Services, then the parties agree that EDS
shall own any Work Product created by or on behalf of Supplier in the
performance of such Services.
3.08 USE OF EXISTING MATERIALS.
To the extent that Work Product(s) under development may incorporate or
require the use of Existing Materials, or to the extent Supplier
intends, in its performance of Services, to utilize any such Existing
Materials (except as such are utilized by Supplier in the performance
of warranty Service obligations or pre-paid support Services), Supplier
shall: (i) notify EDS of such intent prior to commencement of
performance of Services; and (ii) identify to EDS the ownership of such
Existing Materials. EDS may require that Supplier perform Services
without the use of such Existing Materials. If any such Existing
Material is owned by a third party and/or is used in the performance of
Services, Supplier warrants that it has acquired all licenses and
authorizations necessary to utilize the Existing Material in the manner
and for the purpose intended by Supplier in its actual use of such
Existing Material in the performance of Services. To the extent that
Existing Materials are incorporated in Work Products, Supplier grants
to EDS and its affiliates a royalty-free, irrevocable, worldwide,
non-exclusive, perpetual right to use, modify and prepare derivative
works of such Existing Materials and to use and display such Existing
Materials, with full rights to authorize others to do the same but only
to the extent required to utilize the Work Product in accordance with
the Ownership Rights granted in this Agreement.
3.09 FURTHER ACTS.
During and subsequent to the term of this Agreement, Supplier shall do,
or cause to be done, all such further acts and shall execute,
acknowledge, and deliver, or cause to be executed, acknowledged, and
delivered, any and all further documentation or assignments as EDS may
reasonably require to evidence EDS' right to use the Products.
3.10 EDS BUSINESS PRACTICES.
Supplier shall comply with the EDS Business Practices set forth in
Exhibit A.
3.11 TIME OF PERFORMANCE
Time is expressly made of the essence with respect to each and every
term and provision of this Article.
3.12 EDUCATION SERVICES.
Education Services (as later defined) provided or to be provided by
Supplier pursuant to this Agreement shall also be subject to the terms
and conditions set forth in Exhibit E.
ARTICLE 4. PROVISION OF LICENSED SOFTWARE
4.01 ACCEPTANCE OF LICENSED SOFTWARE.
Upon the initial delivery of a portion (as set forth in Exhibit B) of
the Licensed Software for a Project, EDS may, at its option, perform
acceptance tests thereon to determine whether such items materially
conform to the Applicable Specifications for such Project. EDS shall be
deemed to have accepted such items for such Project upon the successful
...
View agreement details