SOFTWARE LICENSE AND AGREEMENT

Exhibit 10.5



SOFTWARE LICENSE AND SERVICES AGREEMENT

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This Software License and Services Agreement (the "Agreement") is between Evolve Software, Inc., with its principal place of business at 615 Battery Street, Suite 400, San Francisco, CA 94111 ("Evolve"), and Lante Corporation, 161 North Clark Street, Suite 4900, Chicago, IL 60601 ("Customer").



The terms of this Agreement shall apply to each Program License granted and to all services provided by Evolve under this Agreement. When completed by the parties, the Order Form(s) shall evidence the Program Licenses (as defined below) to be provided to Customer hereunder. The terms and conditions of any Order Form shall control over any conflicting terms and conditions contained in this Agreement.



1. DEFINITIONS



1.1 "ANCILLARY PROGRAM(S)" shall mean the third party software specified in one or more Order Forms issued pursuant to this Agreement and which are delivered with or embedded in the Programs and are necessary for the operation of the Programs.



1.2 "COMMENCEMENT DATE" of each Program License shall mean the date on which Customer and Evolve enter into an Order Form pursuant to which Customer purchases Program Licenses for such Program(s).



1.3 "DOCUMENTATION" means Evolve's published guides, manuals and on-line help for use of the Program(s). As of the Effective Date, such guides and manuals for the Program(s) includes an Online Help System, Installation Guide, Systems Administration Guide, User Guide and other user and system materials made available to Evolve customers. Evolve reserves the right to add, delete or modify the Documentation at any time.



1.4 "PROGRAM(S)" shall mean the software programs in object code form, as described in one or more Order Forms issued pursuant to this Agreement; the media upon which such software is delivered to Customer; Documentation; and Updates.



1.5 "PROGRAM LICENSE" shall mean each license granted to Customer pursuant hereto for use of a Program for the number of Subject Persons on the Supported System(s) as specified in one or more Order Forms.



1.6 "ORDERED PROGRAM(S)" shall mean the Programs, as described in one or more Order Forms issued pursuant to this Agreement.



1.7 "ORDER FORM" shall mean the document (substantially in the form of Exhibit A) by which Customer orders Program Licenses and which is executed by the parties. Each Order Form shall reference the Effective Date of this Agreement and shall, upon signature by both parties, be deemed to have been incorporated into this Agreement



1.8 "SOFTWARE MAINTENANCE AND SUPPORT SERVICES" shall mean Program support provided under Evolve's policies in effect on the date Software Maintenance and Support Services is ordered, subject to the payment by Customer of the applicable fees for such support and the last sentence of this section 1.8. A copy of Evolve's current policy for Software Maintenance and Support Services is attached as EXHIBIT B. Evolve reserves the right to alter such policies from time to time using its reasonable discretion so long as such alteration, taken as a whole, is no less favorable to Customer.



1.9 "SUBJECT PERSONS" shall mean employees, contractors and other personnel with respect to whom data or other information is entered in, or accessible for use by or with, the Programs, regardless of whether the individual is actively using the Programs at any given time. The maximum number of authorized Subject Persons for each Ordered Program is specified in the Order Form(s). Customer acknowledges that its use of the Programs will be limited to the authorized and paid-for number of Subject Persons. Licensee will not allow use of the Programs with, or access of the Programs to, data or other information with respect to any other persons. Access to and use of the Programs by employees of Customer and the employees of independent contractors and consultants of Customer shall be subject to a non-disclosure agreement at least as restrictive as the provisions of Section 8.1.



1.10 "SUPPORTED SYSTEM(S)" shall mean the computer hardware, server software and operating system(s) supported by Evolve as stated on the Order Form and updated from time to time by Evolve at its sole discretion so long as such update does not reduce support for Customer's selected system, or if such update does reduce support for Customer's selected system, then Evolve shall be required to provide at least ninety (90) days prior written notice before removing any such hardware or software system used by Customer to operate the Programs from the list of Supported Systems.



1.11 "UPDATE" shall mean a subsequent release of the Program, which is generally made available for Program Licensees receiving Software Maintenance and Support Services, at no additional charge other than media and handling charges. Updates shall not include any release, option or future product which Evolve generally licenses separately or only offers for an additional fee, or any upgrade in features, functionality or performance of the Programs which Evolve generally licenses separately or only offers for an additional fee.



2. PROGRAM LICENSE



2.1 Rights Granted



(a) Subject to the terms and conditions of this Agreement and effective as of the applicable Commencement Date of each Program License, Evolve grants to Customer a worldwide, nontransferable (except as permitted by Section 2.2), nonexclusive license to use and copy the Programs which the Customer obtains under this Agreement, including





a worldwide, nontransferable, nonexclusive sublicense to use the Ancillary Programs, as follows:



i. To use and copy the Programs solely for Customer's own internal data

processing operations on the Supported Systems for up to any applicable

maximum number of Subject Persons set forth in the Order Form(s); provided,

however, that Customer may not re-license or sublicense the Programs or use

the Programs for third-party training, commercial time-sharing, rental or

service bureau use;



ii. To use the Documentation provided with the Programs in support of

Customer's authorized use of the Programs; and to make a reasonable number of

copies of the Documentation for internal use;



iii. To copy the Programs and the Ancillary Programs specified in the

Order Form(s) for archival or backup purposes by Customer, provided that (a)

all titles, trademarks, and copyright and restricted rights notices shall be

reproduced in such copies; and (b) all archival and backup copies of the

Programs shall be subject to the terms of this Agreement; and



iv. To use the Programs in conjunction with other software products.



Except as set forth herein, no other uses or copying of the Programs shall be permitted, without Evolve's prior written consent.



(b) Customer recognizes and agrees that the source code of the Programs contains valuable confidential information belonging to Evolve and its suppliers, and Customer therefore agrees not to cause or permit the reverse engineering, disassembly or decompilation of the Programs.



(c) Evolve and its suppliers shall retain all right, title, and interest to the Programs subject to this Agreement, and in all of Evolve's or its suppliers' patents, trademarks, trade names, copyrights and trade secrets. Customer does not acquire any right, title or interest, express or implied, in the Programs, other than those specified in this Agreement. In the event that Customer makes suggestions to Evolve regarding new features, functionality or performance that Evolve adopts for the Programs, such new features, functionality or performance shall become the sole and exclusive property of Evolve, free from any restriction imposed upon Evolve by the provisions of Section 8.1 unless otherwise agreed to in writing by the parties prior to a Customer suggestion being given to Evolve.



(d) To use a Program, Customer may need to use an Ancillary Program. The Ancillary Program may be used only in combination with Programs for the purpose of installing or operating Programs as described on the Order Form or Documentation, and for no other purpose. Customer shall have no right to use Ancillary Programs in connection or combination with any other software programs.



(e) As an accommodation to Customer, Evolve may supply Customer with pre- production releases of Programs (which may be labeled "Alpha" or "Beta"). Customer acknowledges that these products may not be suitable for general use and are provided explicitly subject to the provisions of Section 5.2(d).



(f) Programs acquired under this Agreement with United States Federal Government funds or intended for use within or for any United States federal agency are commercial computer software developed exclusively at private expense, and in all respects are proprietary data belonging solely to VAR or its suppliers. If the Programs and Documentation are acquired by or on behalf of agencies or units of the Department of Defense (DoD), then, pursuant to DoD FAR Supplement Section 227.7202 and its successors (48 C.F.R. 227.7202) the Government's right to use, reproduce or disclose the Programs and Documentation acquired under this Agreement are subject to the restrictions of this Agreement. If the Programs and Documentation are acquired by or on behalf of civilian agencies of the Untied States Government, then, pursuant to FAR Section 12.212 and its successors (48 C.F.R 12.212), the Government's rights to use, reproduce or disclose the Programs and Documentation acquired under this Agreement is subject to the restrictions of this Agreement.



2.2 Transfer and Assignment



(a) Customer may transfer a Program within its organization to another computer system; provided, however, that if Customer transfers the Program to a hardware and/or software platform which is not supported by Evolve at the time of such transfer, Evolve shall continue to provide Updates to Customer which operate on the Supported System and Evolve shall have no further obligation to fix errors which occur when the Program is run on the unsupported platform. Notwithstanding the foregoing, Customer shall remain obligated to pay for Software Maintenance and Support Services ordered by Customer prior to such transfer.



(b) Neither this Agreement nor any rights granted hereunder, nor the use of any of the Programs, may be sold, leased, assigned, or otherwise transferred, in whole or in part, by Customer, and any such attempted assignment shall be void and of no effect; provided, however, that Customer may assign this Agreement in connection with a merger, acquisition or sale of all or substantially all of its assets unless the surviving entity is deemed to be one of Evolve's direct competitors by an independent third party arbitrator, acceptable to both parties, but whose fees and expenses in making any such determination, or not, are paid entirely by Evolve. A "direct competitor" includes only those entities whose primary business is the development and sale of enterprise-wide opportunity, resource or delivery management systems for service businesses.



2.3 Verification. Once each year, when paying annual fees for Software Maintenance and Support Services pursuant to Section 7.2, Customer shall furnish Evolve with an Audit Report generated by the Program, identifying the name and number of Subject Persons, signed by an authorized representative of Customer, verifying that the Programs are being used pursuant to the provisions of this Agreement, and that Customer is not in breach of any license restrictions.



Evolve may, at its expense, and upon thirty (30) days' prior written notice to Customer, audit Customer's use of the





Programs. Any such audit shall be conducted during regular business hours at Customer's facilities and shall not unreasonably interfere with Customer's business activities. If an audit reveals that Customer has underpaid fees to Evolve as a result of unauthorized use or copying of the ProgramsCustomer shall pay to Evolve such underpaid fees based on the Program License fees incurred by Customer for such Programs plus interest thereon at the prevailing U.S. dollar prime rate from the initial date of the unauthorized use. If the amount of the underpayment exceeds 5% of the license fees paid, then Customer shall also pay Evolve's reasonable costs of conducting the audit. Audits shall be conducted no more than once annually.



2.4 Source Code Escrow. Evolve will place copies of the Programs and related documentation (the "Escrow Materials") under the control of an escrow agent pursuant to the terms of an escrow agreement which provides for the release of the source code for such Programs, subject to the terms, conditions and limitations of this Agreement, to Customer in the event of one or more of the following conditions exists and is uncorrected for a period of thirty (30) days: (i) Evolve's failure to support the Programs substantially in compliance with the Software Maintenance and Support Services Schedule attached to this Agreement as Exhibit B for any reason other than Customer's uncured material breach of this Agreement or Customer's failure pay Evolve for Software Maintenance and Support Services in accordance with this Agreement; or (ii) the institution of bankruptcy, receivership, insolvency, reorganization or other similar proceedings by or against Evolve under the Federal Bankruptcy Code; or (iii) Evolve's failure to continue to do business in the ordinary course. Evolve also agrees to update the Escrow Materials upon each major Update of the Programs, but shall not be required to do so more than twice per year. Customer shall be established as a "Preferred Beneficiary" under the escrow agreement at Evolve's sole expense.



3. TECHNICAL SERVICES



3.1 Software Maintenance and Support Services for Programs. Software Maintenance and Support Services shall be provided under Evolve's Software Maintenance and Support Services policies in effect on the date the Software Maintenance and Support Services is ordered, subject to the payment by Customer of the applicable fees. Reinstatement of lapsed Software Maintenance and Support Service is subject to Evolve's Software Maintenance and Support Services reinstatement fees in effect on the date Software Maintenance and Support Services is re-ordered.



3.2 Training. Training will only be provided by Evolve as agreed to by the parties in accordance with Evolve's training and fee schedule in effect at the time such training is ordered.



3.3 Other Support Services. The Services rendered pursuant to this Agreement shall be provided by Evolve at the rates as specified in this Agreement or in the applicable Order Form, or if no rates are specified then at the rates as agreed to from time to time by the parties. All right, title and interest in and to all software programs (including intermediate versions thereof), routines and subroutines, in both source code and object code versions, formulae, development notes, flow charts, outlines, work papers, manuals and other materials created in connection with the software programs, and resulting screen formats and other visual effects of the software programs, and all other deliverable items and work product of Evolve originally done, produced and delivered by Evolve in connection with this Agreement or a related Order Form (collectively, "Deliverables"), and all patents, copyright rights (including without limitation, the right to create derivative works) and all other intellectual property rights in or pertaining to the Deliverables (collectively, "Evolve Confidential Information") shall belong exclusively to and vest in Evolve; provided, however, that Customer shall have the unlimited right, on a royalty free basis, to use the Deliverables in connection with its use of the Programs in accordance with the terms of this Agreement.



3.4 Incidental Expenses. For any ...