Software License And Development Agreement

Exhibit 10.12





SOFTWARE LICENSE AND DEVELOPMENT AGREEMENT





Cedel Global Services, societe anonyme





TIBCO Software Inc.





[ * ] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED

SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN

REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.

Table of Contents

I. Definitions.................................................... 5

II. Scope of Services.............................................. 7

III. Taxes.......................................................... 8

IV. Title.......................................................... 8

A. CGS Applications:........................................... 8

B. Generic Business Applications:.............................. 9

C. Generic Technical Applications:............................. 9

V. License........................................................ 9

VI. Marketing of Products and Royalties............................ 10

VII. Termination.................................................... 11

VIII. Warranties..................................................... 13

IX. Non-Solicitation of Employees and Non-Competition.............. 14

X. Compliance With Law............................................ 15

XI. Applicable Law................................................. 16

XII. Dispute Resolution............................................. 16

XIII. Proprietary Rights Indemnity................................... 17

XIV. General Indemnity.............................................. 18

XV. Insurance...................................................... 18

XVI. Limitation of Liability........................................ 18

XVII. Force Majeure.................................................. 18

XVIII. Confidentiality................................................ 19

XIX. Notices........................................................ 20

XX. Assignment..................................................... 20

XXI. General........................................................ 20

Exhibit A: Existing Software.... ......................................... 24

Exhibit B: Capital Market Services

of Cedel International and its subsidiaries.................... 25

Exhibit C: TIBCO Standard Provisions for Maintenance and Support.......... 26

I. Coverage....................................................... 26

II. Description of Software Maintenance............................ 26

A. Access to TIBCO Support Centers in London and Palo Alto..... 26

B. Remedial Maintenance........................................ 26

C. Software Updates and Enhancements........................... 27

III. On-Site Support................................................ 28

IV. Per Call Support............................................... 29

V. Time and Materials Services.................................... 29

A. For Non-TIBCO Problems...................................... 29

B. For Non-TIBCO Software...................................... 29

VI. Access......................................................... 29

VII. Problem Reporting and Tracking Procedures...................... 30

VIII. Payment........................................................ 30

IX. Support Agreement Number....................................... 30

Exhibit D: Contract Coordination Procedures............................... 31

1. Organization................................................... 31

1.1 CGS Contract Representatives.............................. 31







1.2 TIBCO Contract Representatives.............................. 31

1.3 Work Order Managers......................................... 31

1.4 Production and Maintenance Managers......................... 32

1.5 Management Arbitration Board................................ 32

1.6 Work Order Organization..................................... 32

2. Correspondence.................................................... 33

2.1 General Procedures......................................... 33

2.2 Addresses.................................................. 33

3. Meetings.......................................................... 34

3.1 Progress Meetings.......................................... 34

3.2 Contract Commitments....................................... 34

3.3 Work Order Progress/Technical Review Meetings.............. 34

4. Reporting......................................................... 34

4.1 Methodologies and Reporting................................ 34

5. Travel............................................................ 34

5.1 Visits to Europe by TIBCO Personnel........................ 34

5.2 Visits to Palo Alto by CGS Personnel....................... 35

5.3 Long Term Assignments...................................... 35

6. Work Order Proposals.............................................. 35

6.1 Origination................................................ 35

6.2 Request for Work Order Proposal............................ 35

6.3 Submission of Work Order Proposals......................... 36

6.4 Approval of Work Order Proposals.......................... 37

7. Work Order Management............................................. 37

7.1 Initiation................................................. 37

7.2 Quality Management......................................... 37

7.3 Work Order Change Management............................... 38

7.4 Work Order Acceptance...................................... 38

7.5 Training................................................... 39

7.6 Documentation.............................................. 39

8. Invoicing......................................................... 40

8.1 General.................................................... 40

8.2 License Fees and Maintenance............................... 40

8.3 Work Order Invoices........................................ 40

9.0 Administrative Charges................................................. 41

Exhibit E: Contract Price............................................. 42

Schedule 1: License Fees............................................... 42

Schedule 2: Maintenance Fees........................................... 42

2.1 Base Fees.................................................. 42

2.2 Maintenance Fee Escalation................................. 43

Schedule 3. CGS Funded Development Projects............................ 43

3.1 Work Orders................................................ 43

3.2 Time & Materials [T&M]..................................... 44

3.3 Charges Plus a Fixed Profit Work Orders [CPFP]............. 45

3.4 Adjusted Charges Work Orders [AC].......................... 45

3.5 Total Estimated Charge..................................... 45







3.6 Fixed Price Work Orders [FP].............................. 46

3.7 Rate Escalation............................................ 46

3.8 Equipment Purchase Through Work Orders..................... 46

3.9 Expense Policy............................................. 47

Schedule 4. Payment.................................................... 48

Exhibit F: Work Order Procedures...................................... 49

Exhibit G: Protected Jurisdictions.................................... 50

Exhibit H: TIBCO Shrink Wrap End User License Agreement............... 51

Exhibit I: Year 2000 Warranty......................................... 52

Exhibit J: Individual Confidentiality Agreement....................... 55





SOFTWARE LICENSE AND DEVELOPMENT AGREEMENT





THIS AGREEMENT ("Agreement") is made and entered into by and between TIBCO Software Inc., a Delaware corporation, (hereinafter called "TIBCO") and Cedel Global Services, societe anonyme, (hereinafter, together with its Affiliates, called "CGS") and made effective as of the last date signed below (the "Effective Date").



WHEREAS, Cedel, societe anonyme and Teknekron Software Systems, Inc. entered into a Software License and Development Agreement effective July 11, 1994, as amended via letters dated December 11, 1995 and March 6, 1998 (the "Prior Agreement"), which Prior Agreement the parties desire to be replaced and superseded by this Agreement, exclusive of all outstanding work orders and payment obligations under the Prior Agreement which will remain in effect;



WHEREAS, this Agreement provides for CGS's payment of additional fees in consideration for the right to use the Licensed Software, as defined below, throughout the term of the Agreement for: (i) CGS's internal use, (ii) distribution as an embedded component in CGS's applications and (iii) in connection with Outsourcing, as defined in Article V below, all as more fully described below;



WHEREAS, CGS has established itself as a technology and services provider in securities clearing and settlement, banking, and the financial community and desires to develop and market new technology solutions to its core business areas;



WHEREAS, CGS and TIBCO desire to continue their strategic relationship, the purpose of which is to migrate CGS' technology infrastructure from its existing proprietary platforms to open systems, provide CGS' management a look- ahead at new technologies and techniques, and improve CGS' business and market position through technology; and



WHEREAS, TIBCO has the technical and professional capability, qualifications and existing technology required to design, develop and install an integrated system and desires to work with CGS to develop and market new technology solutions.



NOW THEREFORE, in consideration of the mutual covenants contained in this Agreement, the parties hereby agree to adjust their long-term strategic relationship as follows:



I. Definitions



A. "Affiliate": An entity which conducts as its principal businesses the

Strategic Businesses and which now or in the future directly or indirectly

owns or controls fifty percent (50%) or more, or is fifty percent (50%) or

more owned or controlled by, or is under common control with Cedel

International, or an entity in the clearing and settlement industry which

is at least 20% owned and controlled by Cedel International.



B. "Agreement": This Software License and Development Agreement between TIBCO

and CGS, including all Exhibits hereto which are incorporated herein for

all purposes.





C. "Cedelbank": Cedel s.a. which changed its name and status with effect on 1

January 1995 and which is an Affiliate.



D. "Cedel International": A Luxembourg company that owns or controls fifty

percent (50%) or more of CGS.



E. "Cedel International and its Subsidiaries": Cedel International and its

Affiliates, including CGS.



F. "Existing Software": Existing TIBCO products which are licensed to the

general public and are listed on Exhibit A.



G. "Future Products": All future software products developed or acquired by

TIBCO during the term of this Agreement which are offered for licensing to

the public and not developed pursuant to this Agreement.



H. "Generic Applications": Generic Business Applications, and Generic

Technical Applications, as defined below in Article IV of this Agreement.



I. "Licensed Software": Existing Software, Future Products, Generic

Applications, and Third Party Materials.



J. "Productized Software": Generic Applications which are offered for sale or

license by TIBCO to a third party.



K. "Software": Licensed Software and CGS Applications.



L. "Strategic Businesses": The Capital Market Services of Cedel International

and its subsidiaries as outlined in the chart attached as Exhibit B, plus

Collateral Services and Information Dissemination within the context of the

Capital Market Services. It is understood that Cedel International and its

subsidiaries may add additional services from time to time. CGS's license

rights under this Agreement with respect to those additional services shall

be subject to separate discussions and mutual agreement at the time.



M. "Third Party Materials": Software obtained by TIBCO from third parties which

is included in its Existing Software and/or Future Products.



N. "Work Order": Documentation of the services to be performed and Software to

be delivered by TIBCO for CGS under the terms of this Agreement as more

specifically set forth in Exhibit D hereof.





II. Scope of Services



TIBCO will perform all services under this Agreement pursuant to Work Orders

established in accordance with the procedures and provisions set forth in

Exhibit D. All such Work Orders will be performed on one of the following

contractual forms:



A. "Fixed Price": Tasks specified with sufficient certainty to enable the

establishment of a fixed price for performance.



B. "Time and Materials": Tasks which require development which, by its

nature, contains uncertainties which preclude establishing a fixed price.

Charges for performance are charged at the TIBCO standard billing rate as

set forth in Exhibit E.



C. "Charges Plus a Fixed Profit": Tasks which contain some uncertainty.

This form will provide for the recovery of all charges for performance

(TIBCO standard billing rates minus a predetermined profit percentage) as

specifically set forth in Exhibit E and the payment of a pre-established

fixed sum for profit ("Fixed Profit") which is not dependent upon the

amount of actual charges incurred.



D. "Adjusted Charges": Tasks which contain some uncertainty. This form

provides for TIBCO standard billing rates minus a specified percent for

corporate allocation plus a Fixed Profit plus a fixed amount for corporate

allocation. The terms of this form are the same as for the Charges Plus a

Fixed Profit contract form.



For all Fixed Price Work Orders, TIBCO will perform the services, deliver on

the scheduled dates, and install the Software as set forth therein, and time

shall be of the essence, unless otherwise stated in the Work Order. For all

other Work Orders such services, deliveries and installation will be

performed on a "best commercially reasonable efforts" basis, unless otherwise

stated on the Work Order.



In the event the parties are unable to agree on which of the four contract

forms are applicable to any particular Work Order, the issue shall be

resolved by the Management Arbitration Board. The parties will endeavor in

such instance to establish specifications for each Work Order that will

enable TIBCO to use Fixed Price, Adjusted Charges or Charges Plus a Fixed

Profit Work Orders.



CGS agrees to timely complete all CGS tasks identified in Work Orders.



Except for employment of its affiliates, TIBCO shall not employ any

subcontractors for the performance of this Agreement or any Work Order

without the prior written consent of CGS; excluding, however, individual

consultants working under the control and management of TIBCO.



All Work Orders shall be delivered by CGS to TIBCO and shall be effective

only upon and at the time of written acceptance of the Work Order by each

party as indicated by the signature of the authorized officer of each party.





Maintenance and support of the Existing Software and Future Products shall be

performed by TIBCO pursuant to the Maintenance and Support provisions

attached hereto as Exhibit C.



Maintenance of all Productized Software shall be covered by the fee specified

in Exhibit C. Upon delivery of source code to CGS, TIBCO shall have no

maintenance obligations for such software, including version compatibility,

unless such obligation is established in a Work Order.



III. Taxes



Except as specified below in this paragraph, CGS agrees to indemnify and hold

TIBCO harmless from any taxes including, but not limited to, sales tax, use

tax, withholding, value-added or similar tax, and property taxes that may be

assessed or levied by any jurisdiction arising out of the performance of this

Agreement but excluding any taxes based upon or determined by reference to

TIBCO's income or level of business activity ("Taxes"). TIBCO shall identify

in the Work Order all taxes that will be incurred with regard to delivery of

the products into the United States, the United Kingdom and Luxembourg, which

identified Taxes shall be the obligation of CGS. All taxes incurred in

excess of such identified Taxes with regard to delivery of the products into

the United States, the United Kingdom or Luxembourg shall be paid by TIBCO.

Notwithstanding the foregoing, TIBCO agrees that its invoices will be all

inclusive. No additional Taxes (except VAT) shall be borne by CGS.



IV. Title



TIBCO shall retain right, title and interest to and all intellectual property

rights embodied in its Existing Software and Future Products, systems design

and documentation and all modifications, extensions and improvements thereto

(provided however that the parties acknowledge that CGS Applications as

defined below shall not be deemed to be modifications, extensions and

improvements to the Existing Software and Future Software).



During the course of performance, new software applications will be developed

either by TIBCO solely or jointly with CGS. Each Work Order shall identify

each component of the software to be developed in accordance with the

following descriptions, and the rights thereto as set forth herein shall



A. CGS Applications:



Those applications and other system software which are designed for CGS's

specific approach to its business operations. An example of such an

application is the algorithm for Cedelbank's securities loan operation.

All right, title and interest to and all intellectual property rights in

CGS Applications and all modifications, upgrades, improvements, and

derivative products shall be assigned and conveyed exclusively to CGS.

TIBCO will at CGS's cost do all things reasonably necessary to assist CGS

in perfecting such rights. TIBCO will deliver the source





code to such software and CGS will be responsible for maintenance at the

completion of the warranty period.



B. Generic Business Applications:



Those applications which embody functions or logic which pertain to business

operations that are not specific to CGS's approach to its business

operations. An example of such an application is one which calculates yield

to maturity for a corporate bond. Except as provided for specifically in

the Work Order originating the application, all right, title and interest to

and all intellectual property rights in Generic Business Applications shall

be assigned and conveyed exclusively to TIBCO. CGS will at TIBCO's cost do

all things reasonably necessary to assist TIBCO in perfecting such rights.

TIBCO will deliver the source code to Generic Business Applications and CGS

will be responsible for maintenance at the completion of the warranty



C. Generic Technical Applications:



Those applications which embody functions or logic which do not pertain to

business operations. An example of a Generic Technical Application is an

algorithm which traverses in representation in memory of a directed graph

or, for another example, the VSAM-TIB Adapter. All right, title and

interest to and all intellectual property rights in Generic Technical

Applications shall be assigned and conveyed exclusively to TIBCO. CGS will

at TIBCO's cost do all things reasonably necessary to assist TIBCO in

perfecting such rights. CGS shall have the right at time of award of any

Work Order to request source code to Generic Technical Applications

developed thereunder. If TIBCO agrees to such request then CGS's source

code rights shall be documented in the Work Order. Where such documentation

is not contained in the Work Order TIBCO shall be responsible for

maintenance (at no additional charge to CGS) and CGS shall not have the

right to receive source code.



Subject to the provisions of this Article IV, the parties agree as outlined

below regarding intellectual property ownership rights of the following

components of the Stargate project:



[ * ]



V. License



TIBCO hereby grants, and CGS hereby accepts, subject to the terms and

conditions of this Agreement, a perpetual, non-exclusive and non-transferable

license to use the: (i) object code version of Existing Software and Future

Products, including Third Party Materials and modifications, improvements and

upgrades to the Existing Software and Future Products provided under TIBCO's

maintenance and support programs, and (ii) object code version and, where

applicable, source code version of Generic Technical Applications and Generic

Business Applications for CGS's and its Affiliates' own internal data

processing and computing needs without limitation of location, number of

copies, machine utilization (except that such Existing Software and Future

Products shall at all times be used on the computer systems on which such

products are made generally commercially available from TIBCO), and manner of

use (provided such use is for a Strategic Business). Subject to the

provisions of the following paragraph, CGS shall not permit any third party

to use the Licensed Software. Authorized agents or contractors of CGS acting

for CGS shall not be considered "third parties" for purposes of such

limitation provided, however that disclosure of TIBCO confidential

information to such agents or contractors will be subject to the provisions

of Article XVIII "Confidentiality." Except for source code provided to CGS

pursuant to the terms of this Agreement, CGS shall not, either directly, or

through a third party, reverse engineer,



[ * ] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY

WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH

RESPECT TO THE OMITTED PORTIONS.





disassemble or decompile any software provided by TIBCO, or make any attempt

in any fashion to obtain the source code to any Licensed Software.



In addition to the foregoing internal use license and the internal use

licenses granted pursuant to the Prior Agreement, CGS shall have the right to

(i) embed Existing Software and Future Products, inclusive of Third Party

Materials but exclusive of TIBCO Finance Technology's Market Data Products

described in Exhibit A, in CGS applications that are licensed by CGS to CGS's

customers for the sole purpose of providing access to CGS's services, and

(ii) use the Existing Software and Future Products as described in (i)

hereinbefore in connection with Outsourcing operated by CGS (the applications

and services described in (i) and (ii) in this paragraph above are

collectively hereinafter referred to as the "Solutions"). For purposes of

this Agreement, "Outsourcing" is a service in which CGS provides business

processes and/or automation services of securities clearing and settlement of

financial transactions for its customers. The Solutions shall only be

provided to CGS's customers in object code versions. CGS is not permitted to

distribute the Existing Software and Future Products on a stand alone basis

and shall ensure that such Existing Software and Future Products are embedded

such that the APIs in such products are not exposed to customers. CGS will

distribute the Solutions only to customers who have agreed to be bound by

provisions substantially similar to those contained within TIBCO's shrink-

wrap end user license agreement attached to this Agreement as Exhibit H. In

no event will the license granted under this Article V extend to third party

products resold by TIBCO.



In connection with the foregoing distribution right of CGS's Solutions, CGS

agrees:



(i) to indemnify TIBCO and hold TIBCO harmless from and defend any claim,

suit or proceeding, and pay any settlement amounts or damages awarded by a

court of final jurisdiction arising out of third party claims resulting from

CGS's distribution of its Solutions, and



(ii) to be responsible for providing first line and second line technical

support and maintenance to its customers. First and second line technical

support second line technical support and maintenance shall include the

manufacture and distribution of all enhancements, bug fixes, updates, new

versions or any other modifications made for the Licensed Software as well as

responding to requests for technical assistance from customers. CGS's

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