<PAGE> 1
Exhibit 10.8
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 confidential treatment.
Solution Developer Marketing Partnerships
--------------------------------------------------------------------------------
Software Remarketing Agreement
This is a Software Remarketing Agreement ("SRA") among ServiceWare, Inc. ("you")
and Tivoli Systems Inc., a subsidiary of International Business Machines
Corporation ("IBM"), collectively Tivoli and IBM are referred to as
"TIVOLI/IBM". The complete Agreement between the parties consists of this SRA
and the following Attachments and Exhibits:
o Exhibit - Your End User License
o Exhibit - Your Outsourcer License
o Exhibit - Your Trade Mark Guidelines
o Exhibit - Your Commercial Price List
o Attachment - Certificate of Originality
o Attachment - Tivoli Development License Agreement
o Attachment - Public Sector Terms
If there is a conflict among the terms of this SRA and any of its Attachments,
the terms of the SRA prevail unless the Attachment expressly indicates that
particular terms within the Attachment prevail.
The following are related agreements between the parties. Related agreements
require the signatures of the parties, and in some cases third parties.
o Confidential Disclosure Agreement No. CDA9903540
This Agreement replaces all prior oral or written communications between the
parties relating to the subject matter hereof. Both parties accept the terms of
this Agreement and identified Attachments and Exhibits by signing below. Once
signed, any reproduction of this Agreement made by reliable means (for example,
photocopy or facsimile) is considered an original, unless prohibited by local
law. This Agreement may only be modified by a writing signed by both parties.
AGREED TO: AGREED TO:
Tivoli Systems, Inc. ServiceWare, Incorporated
By: /s/ Jodie Slifka By: /s/ Rajiv Enand
Print Name JODIE SLIFKA Print Name RAJIV ENAND
Print Title CONTRACT MANAGER Print Title CEO
Date 8/3/99 Date 8/3/99
Any notice required or permitted under this Agreement will be sent to the
representative named below, and shall be effective upon receipt as demonstrated
by reliable written confirmation (for example, certified mail receipt, courier
receipt, facsimile receipt confirmation sheet.) Each party will notify the other
if their representative changes.
Tivoli's Representative Your Representative
Tivoli/IBM Systems, Inc. ServiceWare, Inc.
9442 Capital of Texas Hwy., North 333 Allegheny Avenue
Austin, Texas 78758 Oakmont, Pennsylvania 16139
Attention: Jodie Slifka Attention: Jeanne Kohser
(512) 438-1276 (412) 826-1158, Ext. 389
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<PAGE> 2
1. Definitions
Capitalized terms in this Agreement have the following meanings:
ASA means Content Subscription(s) for providing maintenance support and all
product updates for content products.
Code is computer programming code including both Object Code and Source Code:
a) Object Code is computer programming code in substantially binary form, and
includes header files of the type necessary for use or interoperation with other
computer programs. It is directly executable by a computer after processing or
linking, but without compilation or assembly.
b) Source Code is computer programming code that may be displayed in a form
readable and understandable by a programmer of ordinary skill. It includes
related source code level system documentation, comments and procedural code and
all "Error" corrections and "Enhancements". Source Code does not include Object
Code.
Content Subscription means the knowledge-based product delivered on CD,
including error corrections and other updates, additions or modifications to the
Product, new knowledge base content, modifications to existing knowledge base
content, deletions of obsolete content and modifications to the structure and/or
format of the knowledge base.
"Derivative Work" means a work that is based on an underlying work and that
would be a copyright infringement if prepared without the authorization of the
copyright owner of the underlying work.
"End-User" means any party who licenses the Product(s) for its internal use and
benefit. End-Users may not redistribute the Product or use it to provide
external support to other entities.
Enhancements are changes or additions to the Products:
a) Basic Enhancements are all Enhancements, other than Major Enhancements,
including those that support new releases of operating systems and devices, and
correct Errors.
b) Major Enhancements provide substantial additional value and are normally
offered to customers for an additional charge (e.g., upgrades).
Error is a) any mistake, problem or defect that causes a Product to malfunction
or fail to meet its specifications; or b) any incorrect or incomplete statement
or diagram in the related documentation that causes a Product to be materially
inaccurate or inadequate.
Equal Units Standard means that when TIVOLIi/IBM distributes a Product(s) or
Content Subscription(s) to new or existing TIVOLIi/IBM customers, the number of
Units of the ServiceWare Product(s) or Content Subscriptions distributed shall
be EQUAL to the number of Units of the TIVOLIi/IBM Product(s) when ServiceWare
Products or Content Subscription is ordered by the End User.
Internationalization shall mean that a Product has the ability to implement
national functions and the facility to be translated to other languages. This
Includes three (3) categories which correspond to characteristics of various
languages: (a) single byte character set (SBCS), left-to-right languages (U.S.
English, German, Greek, etc.); (b) single byte bi-directional languages (Hebrew,
Arabic); and (c) double byte character set (DBCS) or multi-byte character set
(MBCS) languages (Japanese, Korean, simplified and traditional Chinese). The
Products shall avoid hardcoding language dependent codepages and character sets.
Maintenance Support is the Service provided when a customer identifies an Error.
There are three levels:
a) Level 1 is the Service provided in response to the customer's initial contact
identifying an Error.
b) Level 2 is the Service provided to reproduce and attempt to isolate the
Error, or to find that the Service provider cannot reproduce the Error.
c) Level 3 is the Service provided to isolate the Error at the component level
of the Products. The Service provider distributes the Error correction or
circumvention, or gives notice if no correction or circumvention is found.
Marketing Materials are Product brochures, manuals, technical specification
sheets, demonstration presentations, and other marketing sales literature
provided by you to TIVOLI/IBM for TIVOLI/IBM's use in performance of marketing
activities. TIVOLI/IBM's use of Marketing Materials may include transmission of
them through electronic marketing services.
National Language Support (NLS) shall mean that the Products have the ability to
enter, store, process, retrieve, distribute, display and print character data in
the foreign language of choice. NLS includes Internationalization
characteristics.
New Products include a) all Major Enhancements to your Products; or b) any of
your other software products that render your existing Products down level or
obsolete.
Outsourcer means a company that uses the Product to provide help desk services
to a third party for products other than those sold to that third party by the
Outsourcer, in exchange for fees or other compensation.
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<PAGE> 3
Products are your computer programs in Object Code form, including content and
its updates, documentation, related materials, maintenance modifications, Basic
Enhancements and any security devices or "locks" that are listed in this
Agreement, in TIVOLI/IBM format.
Services are activities associated with the Products, such as Maintenance
Support. Services includes all three levels of Maintenance Support unless stated
otherwise.
Subsidiary is an entity that is owned or controlled directly or indirectly (by
more than 50% of its voting stock, or if not voting stock, decision-making
power) by you or TIVOLI/IBM.
TIVOLI/IBM Products shall mean those TIVOLIi/IBM Service Desk products for which
ServiceWare products have been formatted.
TIVOLI/IBM Revenue is the revenue (excluding local taxes) due TIVOLI/IBM for
Products and/or Services from the effective date of this Agreement.
"Tools" means not commercially available software, and their Externals, required
for the development, maintenance or implementation of a software Deliverable.
2. Territory
The Territory for this Agreement shall consist of all the countries in the world
in which TIVOLI/IBM is directly or indirectly conducting business, except in
Japan. TIVOLI/IBM may conduct business in Japan under a direct agreement
through:
Hidekuni Ogasawara
General Manager of Department
Network Services Center
Sumitomo Metal Systems Development CO., LTD.
2-18 Ikenohata 1-Chome Taito-ku Tokyo 110-0008 JAPAN
PHONE: +81-3-5815-7273
FAX: +81-3-5815-7277
3. License Grants
3.1 To enable TIVOLI/IBM to effectively market your Products and Services, as
identified in Section 6.2, to customers, you grant TIVOLI/IBM the non-exclusive
right and license to use, copy, reproduce, display, perform, market and
distribute, in any medium or distribution technology whatsoever, whether known
or unknown, the Products, Services, trademarks and trade names, and associated
Marketing Materials, to customers subject to the terms of this Agreement
including the Equal Units Standard as defined herein. Each time TIVOLI/IBM sells
a Product to a customer, TIVOLI/IBM will pay you a royalty in accordance with
the terms stated in this Agreement.
3.2 The license grant in Subsection 3.1 above allows TIVOLI/IBM to resell and
distribute your Products, Services and Marketing Materials to customers under
the terms of your end user license agreement ("End User License") or
("Outsourcer License") as applicable, demonstrate the Products, allow customers
to evaluate them free of charge (limited to 90 days of trial use subject to
TIVOLI/IBM's Evaluation Agreement), promote the Products, train TIVOLI/IBM
employees on the Products, and in some cases provide Maintenance Support or
additional services for the Products.
3.3 Source Code Release:
a.) in the event that one of the following events ("Trigger Events") occurs
and remains uncured for 30 days following notice from Tivoli/IBM to you,
Tivoli/IBM shall have the rights in the Source Code for the ServiceWare
Products described in Section 3.3(c) below:
i) you or your successors or representatives refuses, fails or is
unable to perform any obligation in the Agreement which requires
Source Code access to complete,
ii) you or your successors or representatives rejects or terminates the
Agreement for reasons other than Tivoli/IBM's breach. This includes
rejection or termination under bankruptcy or similar laws;
iii) you or your successors or representatives fails to accept the
Agreement within 15 days of filing a bankruptcy or similar petition;
iv) you or your successors or representatives liquidates or shuts down
most of its business operations relating to the Agreement; or
v) any sale, assignment or foreclosure of or on you or your successors
or representatives' assets required to perform its obligations under
the Agreement.
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<PAGE> 4
b.) Tivoli/IBM will:
i) use the Source Code only to support the licenses and rights granted
under the Agreement;
ii) own any Derivative Works of the Source Code that it creates;
iii) pay you the royalties specified in the Agreement to maintain its
rights to the Source Code; and
iv) treat Source Code according to the Tivoli/IBM /ServiceWare
confidentiality agreement.
c.) You grant Tivoli/IBM, its successors and assigns:
i) all right and title to the media containing Source Code;
ii) a nonexclusive, worldwide copyright license to use, execute,
reproduce, display, perform, distribute and prepare Derivative Works
of, all Source Code and their Derivative Works. This license also
applies to associated audio and visual works. Tivoli/IBM may
authorize others to do any of the above; and
iii) an Irrevocable, nonexclusive, worldwide, paid-up license under any
patents and patent applications that are 1) owned or licensable by
you now or in the future and 2) required to make, have made, use and
have used Source Code and Tools. This license applies to the Source
Code or their Derivative Works operating alone or in combination
with equipment or software.
If Source Code is released to Tivoli/IBM, Tivoli/IBM retains its rights to the
Source Code as provided in the Agreement. This includes Tivoli/IBM's right to
use your trademarks and product names.
3.4 In certain situations or in certain geographies it may be advantageous to
allow TIVOLI/IBM to provide the Products and Services to customers under an
TIVOLI/IBM end user license agreement. In such situations, TIVOLI/IBM will, on a
case-by-case basis, obtain your authorization to sublicense the Products to
customers under the terms of an TIVOLI/IBM end user license agreement.
TIVOLI/IBM is responsible for all licensing terms offered to its customers when
TIVOLI/IBM sublicenses the Products under its end user license. Hereafter, every
reference in this Agreement regarding TIVOLI/IBM's right to license the Products
shall also include TIVOLI/IBM's right to sublicense the Products.
3.5 You acknowledge that licensees of the Products, whether obtained from
TIVOLI/IBM, you or a third party, may retain TIVOLI/IBM to perform outsourcing
services on their behalf. Notwithstanding any other provision of this Agreement
or of any other license agreement, TIVOLI/IBM, when providing outsourcing
services to licensees of the Products, will not owe you a fee for the
outsourcing a license to such Products. In addition, TIVOLI/IBM will not owe you
a fee to transfer the applicable Products to an TIVOLI/IBM or third party
computer system which is of like configuration as the computer system for which
the Products were licensed for outsourcing purposes. The Products will only be
used on behalf of the licensee. Upon expiration or termination of the agreement
to provide outsourcing services to the licensee, TIVOLI/IBM's right to use the
Products will terminate.
3.6 TIVOLI/IBM customers may include agencies or other units of a government, or
third parties under contract with a government ("Public Sector"). In the event a
Public Sector customer requires modifications to your End User License
Agreement, you agree to negotiate in good faith such requested modifications
with TIVOLI/IBM and the Public Sector customer, including the possibility of
authorizing TIVOLI/IBM to become the licensor of the Products.
3.7 TIVOLI/IBM customers may include agencies or other units of a federal
government, or third parties under contract with a federal government ("Public
Sector"). In the event TIVOLI/IBM desires to market your Products to Public
Sector customers, the terms and conditions in the "Public Sector Attachment"
(attached) shall be considered part of this Agreement.
3.8 You hereby grant TIVOLI/IBM the right and license to use the Products for
internal productive use, excluding internal help desk environments, which
includes the ability to: (a) use, store, transmit, execute, display or merge the
Products with a computer system; (b) use the Products and documentation provided
with the Products in support of the use or the Products; and (c) make a copy of
the Products and documentation for archival purposes. TIVOLI/IBM's internal use
of the Products shall be governed by the terms of this Agreement, the terms of
your end user license agreement are specifically excluded.
3.9 You warrant the accuracy of all statements in the attached completed
Certificate of Originality. You agree to complete a new Certificate of
Originality before adding any New Products to this Agreement.
3.10 Except for the internal use license granted to TIVOLI/IBM in this Section,
TIVOLI/IBM may perform any of its rights, licenses and obligations under this
Agreement through Subsidiaries, subcontractors, and other companies affiliated
with TIVOLI/IBM, such as TIVOLI/IBM Business Partners. The use of such entities
by TIVOLI/IBM does not relieve it of its obligations under this Agreement. This
Agreement does not grant TIVOLI/IBM or any such entitles any ownership to any of
the copyright rights in the Products.
4. Your Responsibilities
4.1 License Agreement: Except in sublicensing situations, TIVOLI/IBM will
license the Products to customers under the terms of your end user license
agreement (your "License"). TIVOLI/IBM will obtain the customer's signature on
your License, if their signature is required. TIVOLI/IBM is not a party to your
License and does not assume any obligation for violations of it. You agree to
modify your License, if necessary, to comply with the terms and conditions of
this Agreement. In the event TIVOLI/IBM.
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<PAGE> 5
reasonably requests that you modify your License to comply with the law of a
country in the Territory, you agree to 1) consider such a request on a timely
basis and 2) not unreasonably withhold your consent to such changes. In
addition, you agree to provide a reasonable number of copies of your License to
TIVOLI/IBM at no additional charge, written in the local language(s) of each
country in the Territory when required by local law or when reasonably requested
by TIVOLI/IBM. The terms of this Agreement, including its Attachments, and your
License provide specific legal rights; however, other rights may apply or may
vary from jurisdiction to jurisdiction.
4.2 Product Source Code: You will deliver to TIVOLI/IBM: (i) one complete copy
of the software source code, each Enhanced version of the Products, all Tools,
and updates to Tools used for the integration of the Products and TIVOLI/IBM
Products described herein, as well as a complete list of all commercially
available software required for the development, maintenance or implementation
of such software, including updates to the list as soon as practicable.
4.3 Product Masters: You agree to provide to TIVOLI/IBM within 15 days of
signing this Agreement, three Gold Master copies of each Product and updates in
TIVOLI/IBM format in a form suitable for reproduction, including all
demonstration, documentation, packaging and promotional materials. TIVOLI/IBM
will provide your branding on the CD packaging in accordance with the guidelines
identified in Attachment hereto.
4.4 New Products: You represent that the Products available to TIVOLI/IBM under
this Agreement are always the most current release or version that is available
to your customers. If you make New Products available to your customers you will
offer such New Products to TIVOLI/IBM under terms and pricing to be agreed to in
writing. You will give TIVOLI/IBM at least four months notice prior to
withdrawing any Product (including any version) from marketing or support.
4.5 Product Returns: In the event a customer returns a Product to TIVOLI/IBM
within a reasonable period of time for any reason whatsoever, and TIVOLI/IBM
refunds the customer for the amount paid for the Product, you agree that (a)
TIVOLI/IBM may deduct the royalty amount paid to you for the returned Product
from the next scheduled royalty payment, or (b) you agree to repay the
applicable royalty amount per TIVOLI/IBM's instructions.
4.6 Marketing Materials: You agree to provide to TIVOLI/IBM at no additional
charge, a reasonable number of copies of the Marketing Materials related to the
Products in the local language of each country in the Territory if such
translations should become available. You authorize TIVOLI/IBM to alter the
Marketing Materials to indicate that TIVOLI/IBM has the authority to market,
price, license and provide services for the Products. You also agree to allow
TIVOLI/IBM to create and distribute a reasonable number of copies of your
Products for demonstration purposes to its sales force and distribution
channels, as provided for in this Agreement.
4.7 Product Support: You agree to offer warranty and Maintenance Support
Services to TIVOLI/IBM customers that are at least as favorable as those you
generally offer to your own customers for the Products. This offer shall be
available to TIVOLI/IBM customers during the term of this Agreement and for at
least one year after delivery of each Product licensed to an TIVOLI/IBM customer
under your License. If a Product does not comply with its warranties, you agree
to correct the problem and/or Error without charge and in a timely manner. If
you are unable after such efforts to correct the problem and/or Error, you agree
to replace or refund the money for the Products not meeting your warranty.
TIVOLI/IBM will either return the defective Products to you, or destroy them, at
your direction.
4.8 Product Support: As TIVOLI/IBM shall provide Level 1 and Level 2 Maintenance
Support to its customers of the Products who have purchased Maintenance Support
from TIVOLI/IBM, you agree to provide assistance to TIVOLI/IBM's end user
support personnel during normal business hours, and accept calls from TIVOLI/IBM
pertaining to Level 3 Maintenance Support matters. TIVOLI/IBM will provide
ServiceWare with the information that has been collected, such as a detailed
description of the problem, customer contact information, TIVOLI/IBM's attempts
at resolution, and TIVOLI/IBM's problem ticket number. It is understood and
agreed that ServiceWare will provide Level 3 Maintenance Support.
4.9 Ongoing Support: When TIVOLI/IBM offers Maintenance Support for the Products
to customers, you agree to provide Maintenance Support for the Products to
TIVOLI/IBM so long as TIVOLI/IBM continues to pay you a royalty for your
Services, even if this Agreement has been terminated.
4.10 Market Support: You agree to provide the following market support services
to TIVOLI/IBM as reasonably requested during the term of this Agreement, at no
additional charge. All of your personnel providing market support will have
sufficient Product knowledge and skills to adequately perform the support
services requested.
- Marketing Events: You agree to participate in trade shows, executive
conferences, and other marketing events, on dates and at locations
mutually agreed to by the parties.
- Telephone Support: You agree to provide telephone consulting services
during your normal business hours to address technical questions related
to demonstration, marketing, operation, use and installation of the
Products.
- Pre-sales Support: You agree to provide pre-sales technical support
services and demonstration assistance for the Products to TIVOLI/IBM on
dates and at locations mutually agreed to by the parties.
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<PAGE> 6
4.11 Training: During each 12-month period during the term of this Agreement,
you shall conduct marketing/technical training classes related to the
demonstration, marketing, installation and use of the Products if requested by
Tivoli as agreed to in the Marketing Plan. You agree to provide the training at
no charge to TIVOLI/IBM. All training shall be conducted on dates and at
locations mutually agreed to by the parties.
5. TIVOLI/IBM's Responsibilities:
5.1 Marketing Activities: Both parties agree they will use reasonable efforts to
develop and implement a market support plan for the Products within 90 days. The
market support plan may include, at TIVOLI/IBM's sole discretion, the following
marketing activities for the Products:
o identify and qualify customers for the Products
o demonstrate the Products to customers;
o develop sales proposals;
o advertise your Products in various trade magazines and other publications;
o include your Products in trade shows, executive conferences, and other
marketing events;
o implement telemarketing or direct mail campaigns;
o electronically publish information about your Products.
5.2 Pre-Requisition means TIVOLI/IBM will provide information to the TIVOLI/IBM
Sales teams about the value added by using the ServiceWare product in
conjunction with TIVOLI/IBM products. TIVOLI/IBM will also recommend that
TIVOLI/IBM sales representatives sell the designated ServiceWare product each
time a new customer or, when appropriate, an existing customer purchases the
identified TIVOLI/IBM Product. ServiceWare Products will be announced via
TIVOLI/IBM's usual announcement processes including an RFA (IBM) and a Sales
Flash (Tivoli) to the Sales force. For the purpose of clarification, there is no
intent on TIVOLI/IBM's part to mandate this requirement to either the customers
or the sales force through forced distribution with the identified TIVOLI/IBM
Product(s).
5.3 Other Activities: TIVOLI/IBM is responsible for licensing, pricing,
ordering, manufacturing and delivering, Level 1 and Level 2 Maintenance Support,
first year mandatory Content Subscription services and billing and accounts
receivable activities rotated to the Products it sells to customers.
5.4 Formatting for TIVOLI/IBM Products: TIVOLI/IBM shall provide ServiceWare
Development team two copies of the Tivoli Service Desk products and updates for
the purpose of creating and maintaining the TIVOLI/IBM format of the Products.
This toolkit license is provided at no cost to ServiceWare under the terms and
conditions of the Development License Agreement attached herein.
6. Royalties
6.1 TIVOLI/IBM will pay you the royalty amount set forth in the following table
("TIVOLI/IBM Rate") for each Product TIVOLI/IBM provides to a customer.
TIVOLI/IBM is not obligated to license any minimum quantities. TIVOLI/IBM
payments to you will be at the TIVOLI/IBM Rate subject to any withholding tax
requirement and/or any applicable transaction based taxes (including, without
limitation, sales and value-add taxes), and shall be net of refunds and
adjustments reasonably granted to customers. TIVOLI/IBM will not pay you any
other payments related to the Products (for example, under any TIVOLI/IBM
business partner Agreement). The royalty payments set forth in this Section
fully compensate you for your performance under, and for the rights and licenses
granted in, this Agreement TIVOLI/IBM shall have full freedom and flexibility in
pricing your Products.
6.2 For the term of April 1, 1999 through and including the announcement of
release of ServiceWare Edition 15, TIVOLI/IBM shall pay you royalties based on
the rates identified in the table below. These rates will terminate upon the
TIVOLI/IBM announcement date of Edition 15, but shall be extended to any
outstanding orders or quotes identified by the product numbers of 5697-KNS,
5697-KR3 and 5697-KDS as of the announcement date.
<TABLE>
<CAPTION>
Product Type Product Name Tivoli/IBM rate
------------------------------------------------------------------------------
<S> <C> <C>
Products--Server Knowledge Pak Desktop Suite (KPDS) [***]
Knowledge Pak Network Suite (KPNS) [***]
Knowledge Pak SAP R/3 Suite (KPSS) [***]
-------------------------------------------------------------------------------
Services--Server Annual Subscription Agreements (ASA): [***]
Knowledge Pak Desktop Suite (KPDS) [***]
Knowledge Pak Network Suite (KPNS) [***]
Knowledge Pak SAP R/3 Suite (KPSS) [***]
-------------------------------------------------------------------------------
</TABLE>
6.3 Upon TIVOLI/IBM's announcement of Edition 15, annually, three months
following the end of the prior calendar year, TIVOLI/IBM will calculate the
aggregate amount of all royalties that would have been payable to you in such
prior calendar year if the applicable Minimum TIVOLI/IBM Rate (i.e., floor),
identified in the table below, per license had been used to calculate quarterly
payments, instead of the applicable percent of TIVOLI/IBM revenue specified
herein. If the aggregate amount of
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<PAGE> 7
royalties paid to you for such calendar year was less than the floor amount,
TIVOLI/IBM will pay you the difference, as an annual minimum royalty adjustment,
with the next scheduled payment.
<TABLE>
<CAPTION>
Minimum
Product Type Product Name(3) TIVOLI/IBM Rate(1) TIVOLI/IBM Rate(1)
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Products - Server Knowledge Pak Desktop Suite (KPDS) 32.7% of TIVOLI/IBM $[***] per server
Knowledge Pak SAP R/3 Suite (KPSS) Revenue for Products
---------------------------------------------------------------------------------------------------------
Products - Seats(2) Knowledge Pak Desktop Suite (KPDS) 32.7% of TIVOLI/IBM $[***] per seat
Knowledge Pak SAP R/3 Suite (KPSS) Revenue for Products
---------------------------------------------------------------------------------------------------------
Outsourcer(3) - Knowledge Pak Desktop Suite (KPDS) 32.7% of TIVOLI/IBM $[***] per server
Server & Services Knowledge Pak SAP R/3 Suite (KPSS) Revenue for Products
---------------------------------------------------------------------------------------------------------
Services - Server Annual Subscription Agreements (ASA): 60% of TIVOLI/IBM $[***] per server
Knowledge Pak Desktop Suite (KPDS) Revenue for ASA'S
Knowledge Pak SAP R/3 Suite (KPSS)
---------------------------------------------------------------------------------------------------------
Services - Seat(1) Annual Subscription Agreements (ASA): 60% of TIVOLI/IBM $[***] per seat
Knowledge Pak Desktop Suite (KPDS) Revenue for ASA'S
Knowledge Pak SAP R/3 Suite (KPSS)
---------------------------------------------------------------------------------------------------------
</TABLE>
NOTES: (1) International uplift for Products is 0%.
(2) Seats - Must purchase a minimum of 5 seats. Additional seats may be
purchased in quantities of single units.
(3) Outsourcer License is an annual license only and includes
subscription service for one year.
6.4 In no event will ServiceWare receive less than [***] in cumulative annual
payments for the term of this Agreement.
6.5 In the event the annual commitment level exceeds a cumulative amount of
[***] over the term of this agreement, TIVOLI/IBM will pay you at the rate
equal to an [***] discount from your list price for products as indicated in the
table below:
<TABLE>
<CAPTION>
Product Type Product Name(3) TIVOLI/IBM Rate(1) TIVOLI/IBM Floor(1)
-----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Products - Server Knowledge Pak Desktop Suite (KPDS) 23% of TIVOLI/IBM $[***] per server
Knowledge Pak SAP R/3 Suite (KPSS) Revenue for Products
-----------------------------------------------------------------------------------------------------------
Products - Seats(2) Knowledge Pak Desktop Suite (KPDS) 23% of TIVOLI/IBM $[***] per seat
Knowledge Pak SAP R/3 Suite (KPSS) Revenue for Products
-----------------------------------------------------------------------------------------------------------
Outsourcer(3) - Knowledge Pak Desktop Suite (KPDS) 23% of TIVOLI/IBM $[***] per server
Server & Services Knowledge Pak SAP R/3 Suite (KPSS) Revenue for Products
-----------------------------------------------------------------------------------------------------------
Services - Server Annual Subscription Agreements (ASA): 60% of TIVOLI/IBM $[***] per server
Knowledge Pak Desktop Suite (KPDS) Revenue for ASA'S
Knowledge Pak SAP R/3 Suite (KPSS)
-----------------------------------------------------------------------------------------------------------
Services - Seat(1) Annual Subscription Agreements (ASA): 60% of TIVOLI/IBM $[***] per seat
Knowledge Pak Desktop Suite (KPDS) Revenue for ASA'S
Knowledge Pak SAP R/3 Suite (KPSS)
-----------------------------------------------------------------------------------------------------------
</TABLE>
NOTES: (1) International uplift for Products is 0%.
(2) Seats - Must purchase a minimum of 5 seats. Additional seats may be
purchased in quantities of single units.
(3) Outsourcer License is an annual license only and includes
subscription service for one year.
6.6 In the event TIVOLI/IBM finds it necessary to offer a customer a special
discount, TIVOLI/IBM may request a lower TIVOLI/IBM Rate for such transaction.
If you agree to such lower TIVOLI/IBM Rate, you will provide to TIVOLI/IBM in
writing (to include either electronic mail or a facsimile transmission) your
approval to adjust the TIVOLI/IBM Rate.
6.7 You agree to give TIVOLI/IBM the benefit of any published list price
decreases you offer for Products not yet purchased by customers from the date a
price decrease becomes effective. In the event TIVOLI/IBM finds it necessary to
reduce its published list price for the Products, TIVOLI/IBM may request a lower
TIVOLI/IBM Rate. If you agree to any such lower TIVOLI/IBM Rate, a letter
amendment specifying such lower TIVOLI/IBM Rate and the effective date will be
signed by the parties.
6.8 You agree to give TIVOLI/IBM 120 days prior written notice of any changes to
your list price for the Products. The parties will sign an amendment to this
Agreement indicating the new TIVOLI/IBM Rate based on the same percentage of
your list price as currently established under this Agreement. The parties agree
that any increases to your list prices will not increase the TIVOLI/IBM Rate
more than once per calendar year; however, any decreases to your list price
during the calendar year will have a subsequent change to the TIVOLI/IBM Rate.
The parties also agree that any proposals submitted by TIVOLI/IBM to customers
before the effective date of any TIVOLI/IBM Rate increase shall be based on the
lower TIVOLI/IBM Rate.
6.9 TIVOLI/IBM has no royalty obligation for Products used for the following
purposes:
o marketing, demonstrations, customer evaluations and trial use;
o Product training and education;
o Product maintenance and support;
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o backup and archival purposes;
o a licensed customer's installation and use of a second copy of the
products at home or on a mobile computer, provided the products are not
active on more than one machine at the same time;
o Basic Enhancements and Error corrections; or
o warranty replacement copies of the Products
6.10 Royalties are paid against revenue recorded by TIVOLI/IBM in a royalty
payment quarter. A royalty payment quarter begins on the first business day of
the calendar quarter and ends on the last business day of the calendar quarter
(e.g., January 1 through March 31). TIVOLI/IBM shall make payments to you 45
days following the close of the royalty payment quarter in which TIVOLI/IBM
records that a customer has acquired a royalty bearing license and recognizes
revenue for the Product and/or Service. All payments to you shall be net of
refunds, adjustments, and if applicable, taxes. Payment will be accompanied by a
summary of the basis for determining its amount and shall identify the relevant
customer by number. TIVOLI/IBM will maintain relevant records to support the
payment amount for a period of two (2) years from the date of the related
payment. Payment will be made by wither electronic funds transfer, or by mail.
Payment is deemed to be made on the date of electronic funds transfer, or on the
date of mailing, as applicable. All payments will be made in U.S. dollars.
Payments based on foreign revenue will be converted to U.S. dollars at the rate
of exchange published by Reuters Financial Service on approximately the same day
each quarter.
7.Warranty
You represent and warrant on an ongoing basis that
o (a) you have sufficient rights to the Products (including associated marks
and names) to grant TIVOLI/IBM the rights specified in this Agreement, and
to grant customers the rights specified in your End User License agreement
o (b) the Products conform to their published specifications and any written
representations made by you to TIVOLI/IBM or customers;
o (c) the Products (including but not limited to Marketing Materials) do not
infringe any patent, copyright, trademark or trade secret or any other
intellectual property rights of any third party, and do not contain any
virus or other harmful code;
o (d) at the time of signing this Agreement, you are not aware of any claims
against you regarding the Products;
o (e) you comply with any and all laws and/or regulations, Including but not
limited to, export laws and/or regulations regarding (i) the
classification of the Products; and (ii) distribution of encrypted code
contained in the Products;
o (f) the Products, when used in accordance with their associated
documentation, are capable of correctly processing, providing and/or
receiving date data within and between the twentieth and twenty-first
centuries, provided that all products (for example, hardware, software and
firmware) used with the Products properly exchange accurate date data with
the Products; and
o (g) when available and where applicable, the Products are euro-ready such
that they will correctly process, send, receive, present, store, and
convert monetary data in the euro denomination, respecting the euro
currency formatting conventions (including the euro symbol).
If any Product does not comply with the warranties set forth in subparagraph
(b), (f) or (g) above during the first year after acceptance by the applicable
customer, you agree to correct the deficiency without charge or replace the
Product in a timely manner. This provision does not limit any other rights and
remedies we may have under this Agreement.
EXCEPT AS PROVIDED IN THIS AGREEMENT, WE UNDERSTAND AND AGREE THAT YOU DO NOT
MAKE ANY WARRANTY OF ANY KIND TO US WITH RESPECT TO THE PRODUCTS, SERVICES AND
MARKETING MATERIALS, EITHER EXPRESS OR IMPLIED. WE UNDERSTAND AND AGREE THAT YOU
EXPRESSLY EXCLUDE ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
8. Indemnification
You will defend and Indemnify TIVOLI/IBM, its customers and its and their end
users, if a third party makes a claim against them, whether actual or alleged,
based on your breach of any of the warranties contained in Section 8, entitled
"Warranty". If an infringement claim of any type appears likely or is made
against TIVOLI/IBM or customers, about a Product, you will obtain the necessary
rights for TIVOLI/IBM, and customers to continue exercising all rights granted
under this Agreement, or you will modify the Product or its name so that it is
non-infringing, or replace it with a Product that is functionally equivalent. In
addition to any remedies specified in this Agreement, TIVOLI/IBM may pursue any
other remedy it may have in law or in equity. You will pay any settlement
amounts you authorize and all costs, damages and attorneys' fees that a court
finally awards if TIVOLI/IBM promptly provides you notice of the claim, and
allows you to control and cooperates with you in the defense of the claim and
settlement negotiations. TIVOLI/IBM may participate in the proceedings at its
option and expense.
9. Limitation of Liability
Except for claims arising under Section 8, entitled "indemnification", for
personal injury, property damage or infringement of intellectual property
rights, neither party shall be liable to the other for any economic
consequential damages (including lost profits or savings) or incidental damages,
even if advised that they may occur. Except for claims arising under Section 8,
entitled "Indemnification", for personal injury, property damage or infringement
of intellectual property rights, each party's
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liability for any claim will be limited to the greater of the amounts paid or
owing to you hereunder for the twelve month period ending on the date the claim
was made or the charges for the Product or Service that is the subject of the
claim. Notwithstanding anything to the contrary in this Agreement, if TIVOLI/IBM
negotiates terms with any customer that extend the limits of liability beyond
those In this Agreement, you agree to extend the limits of your liability to
match those terms. In no event would the extension or the limitation of
liability exceed that which TIVOLI/IBM negotiates for its related software.
10. Term and Termination
10.1 This Agreement shall be effective July 1, 1999 when signed by both parties
and shall remain in effect for one year unless extended by mutual written
agreement or terminated as set forth below.
10.2 TIVOLI/IBM may terminate this Agreement for convenience on 90 days prior
written notice to you. In recognition of the initial costs associated with
TIVOLI/IBM's marketing efforts for your Products, you may not terminate this
Agreement for convenience during the first 12 months after its execution. After
the first 12 months you may terminate this Agreement for convenience with 90
days prior written notice to TIVOLI/IBM. The effective date of termination will
be specified in such prior written notice. If TIVOLI/IBM cancels this agreement
under this section 10.2 TIVOLI/IBM will be liable for the minimum amount set
forth in section 6.4 payable on the effective date of termination.
10.3 Either party may terminate this Agreement if the other materially breaches
its obligations. The termination must be by written notice specifically
identifying the breach upon which it is based and will become effective 90 days
after the notice, unless the breach is corrected during the 90 days.
10.4 At the end of the Agreement TIVOLI/IBM will either return to you, or
destroy, any copies of the Products which TIVOLI/IBM has in its inventory,
provided all orders have been fulfilled. TIVOLI/IBM may continue marketing any
Products in its distribution channels at the time of termination.
10.5 Any terms of this Agreement which by their nature extend beyond the day
this Agreement ends remain in effect until fulfilled, and apply to respective
successors and assignees. Upon termination of this Agreement, all rights and
licenses granted by you to TIVOLI/IBM shall cease, except TIVOLI/IBM shall
continue to have all necessary rights and licenses to perform the following
activities: (a) TIVOLI/IBM may sell, lease, license and distribute any inventory
of Products, (b) TIVOLI/IBM may continue to exercise the rights and licenses
granted under this Agreement for up to four months after termination to fill
customer orders TIVOLI/IBM receives before the termination date, and (c) for as
long as necessary to provide maintenance and support to TIVOLI/IBM customers. If
either party terminates for convenience, each party's payment obligations shall
survive and be due and payable within forty-five days after the end of the
quarter of termination. All rights and licenses granted to TIVOLI/IBM's
customers shall survive and continue and shall in no way to affected by the
termination of this Agreement.
11. Information
All Information exchanged under this Agreement is non-confidential. Neither
party shall disclose the terms of this Agreement to any third party without the
other party's prior written consent, except to the extent necessary to establish
each party's rights hereunder, or, as required by applicable law or regulations.
You agree not to issue press releases or other publicity regarding this
Agreement or the relationship under it without TIVOLI/IBM's prior written
approval.
12. Taxes
Each party is responsible for complying with the collection, payment, and
reporting of all taxes imposed by any governmental authority applicable to its
activities in connection with the sale, lease, delivery or license of the
Products under this Agreement. Neither party is responsible for taxes that may
be imposed on the other party. Situations may arise where governmental
authorities require TIVOLI/IBM to withhold from amounts payable to you. In such
cases, TIVOLI/IBM may withhold the amount of taxes due from payments to be made
to you under this Agreement and remit the taxes withheld to the governmental
authority. Upon request, TIVOLI/IBM will provide you with documentation
justifying the withholding amount. As a reseller of your products, TIVOLI/IBM is
not required to pay you, and you agree not to charge TIVOLI/IBM for, taxes for
the Products which are sold by TIVOLI/IBM in the Territory.
13. Audit
You may, not more than once each calendar year this Agreement is in effect and
only on 90 days prior written notice, request access to relevant TIVOLI/IBM
records to a third party auditor, chosen and compensated by you for purposes of
audit. Such third party auditor will report to both parties only the amounts
overpaid or underpaid during the period examined. The audit will be conducted
during normal business hours at TIVOLI/IBM's office and in such a manner as not
to interfere with TIVOLI/IBM's normal business activities. The auditor will sign
a confidentiality agreement.
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14. General
14.1 Neither party guarantees the success of any marketing effort it engages in
for the Products. Either party may independently develop, acquire, and market
materials, equipment, or programs that may be competitive with (despite any
similarity to) the other party's products or services. Each party is responsible
for its own costs, including all business, travel and living expenses incurred
by the performance of this Agreement.
14.2 Neither party has relied on any promises, inducements or representations by
the other, except those expressly stated in this Agreement. This Agreement is
not to be construed as a commitment or obligation, express or implied, on the
part of TIVOLI/IBM that TIVOLI/IBM will market, sell, purchase, or license any
Products under this Agreement.
14.3 Neither party will assign their rights or delegate or subcontract their
duties under this Agreement to third parties or affiliates without the prior
written consent of the other party, such consent not to be withheld
unreasonably.
14.4 Neither party will bring a legal action against the other more than two
years after the cause of action arose. Each party waives a jury trial in any
dispute. Failure by either party to demand strict performance or to exercise a
right does not prevent either party from doing so later.
14.5 The parties are independent contractors. Personnel you supply are deemed
your employees and are not for any purpose considered employees or agents of
TIVOLI/IBM. Each party assumes full responsibility for the actions of its
personnel while performing its obligations under this Agreement and is solely
responsible for their direction and compensation. This Agreement does not create
any obligations for TIVOLI/IBM in any way limiting or restricting the assignment
of its employees. TIVOLI/IBM and its employees are free to use any information,
processing ideas, concepts or techniques disclosed in the Products for any
purpose whatsoever, subject to your statutory patent and copyright rights.
14.6 The laws of New York govern this Agreement. The United Nations' Convention
on the International Sale of Goods does not apply.
14.7 Force Majeure: Neither party will be in default or liable for any delay or
failure to comply with this Agreement due to any act beyond the control of the
affected party, excluding labor disputes, provided such party immediately
notifies the other.
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Exhibit - End User License
--------------------------------------------------------------------------------
A sample copy of your End User License Agreement is attached.
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ServiceWare
Inc
--------------------------------------------------------------------------------
ServiceWare, Inc. End-User License Agreement
Content and Software Product(s)
YOU SHOULD READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE INSTALLING
OR USING THE SERVICEWARE PRODUCT WHICH HAS BEEN DELIVERED TO YOU WITH THIS
LICENSE AGREEMENT. USE OR INSTALLATION OF THE PRODUCT INDICATES YOUR ACCEPTANCE
OF THESE TERMS AND CONDITIONS. IF YOU NEED A TRANSLATION OF THE FOLLOWING TERMS
AND CONDITIONS, PLEASE CONTACT SERVICEWARE IMMEDIATELY WITHOUT INSTALLING OR
USING THE SERVICEWARE PRODUCT. IF YOU DO NOT WISH TO ACCEPT THESE TERMS AND
CONDITIONS, YOU SHOULD RETURN THE SERVICEWARE PRODUCT IMMEDIATELY AND ANY
LICENSE FEES WHICH YOU HAVE PAID FOR THE SERVICEWARE PRODUCT WILL BE REFUNDED TO
YOU. *
1. DEFINITIONS.
"Content Product" means the knowledge-base product delivered on CD,
including the knowledge structures, all accompanying text, graphics and
multimedia, embedded software utilities, and online and hard copy
documentation.
"Outsourcer" means a company that uses the Product to provide help desk
services to third parties for products other than those sold to the third
parties by the Outsourcer, in exchange for fees or other compensation.
"Product(s)" means the "Content Product(s)" and the "Software Product(s)"
licensed hereunder, and any corrections, bug fixes, enhancements, updates
or other modifications thereto which are made generally available and
provided to you as part of Maintenance or Content Subscription Services,
as applicable.
"Seller" means an authorized representative of Serviceware who is selling
the Product license to you.
"Services" means Customer Support Services provided hereunder.
"Software Product" means computer software program(s) in object code only
including online and hardcopy documentation.
"We", "us", "our" and "ServiceWare" means ServiceWare, Inc.
"You", "your", and "Customer" means the party purchasing an end-user
license to use the Product
2. PRODUCT LICENSE GRANT. Subject to the terms and restrictions set forth in
this Agreement, ServiceWare grants to you a non-exclusive, non-transferable,
perpetual license for the Product provided hereunder solely to:
i) permit use of the Content or Software Product by as many authorized
users or on as many servers as you have purchased rights for; and
ii) use the Content or Software Product for your organization's internal
purposes (including use by your third-party consultants who agree to
be bound by the terms conditions of this Agreement); and
iii) copy the Content or Software Product for testing, archival or
disaster recovery purposes; and
iv) use the Software Product to develop custom knowledge bases; and
v) copy, modify, transmit and distribute custom knowledge bases you
create using the Software Product provided, however, that the custom
knowledge bases created by you do not contain (a) the Content
Product, in whole or in part, or (b) the Software Product, in whole
or in part, and
vi) modify the Content Product (exclusive of software utilities
contained therein), by
1) adding content developed by you in order to enhance the usability
of the Content Product ("Modifications"); provided that (a) the
Modifications must be done in a manner that does not alter the
technical accuracy of the information contained in the Content
Product, (b) the use of any such Modifications by you in conjunction
with the Content Product shall be subject to the terms and
conditions for use of the Content Product under this Agreement; and
(iii) nothing in this Agreement shall in any manner limit
ServiceWare from independently developing any content or products
which are similar or identical to the Modifications. You shall be
free to copy, modify, distribute and use such Modifications in any
manner provided that such modifications do not contain the Content
Product, in whole or in part; or
2) modifying ServiceWare content solutions contained in the Content
Product, provided that we retain all right, title and interest in
and to such modified content solutions; such modified content
solutions shall be subject to the same terms and conditions for use
of the Content Product under this Agreement.
ServiceWare, Inc. End-User License Agreement (rev. 3-1-99) Page 1 of 4
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ServiceWare
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3. PRODUCT LICENSE RESTRICTIONS. You may not:
i) use the Content Product for the purpose of treating or augmenting a
third party's knowledge base, database, document or software except
as authorized by us; or
ii) copy any portions of the Content or Software Product, except as
described in Section 2.iii of this Agreement; or
iii) distribute or otherwise make the Content or Software Product or any
portion of the Content or Software Product, available to any third
party (except as permitted in 2.ii, above) by way of the World Wide
Web or other means, without the prior written permission of
ServiceWare; or
iv) reverse-engineer, disassemble, decompile, create a derivative work,
or make any attempt to discover the source code of the Software
Product; or
v) assign, re-sell, sub-license, rent, or lease any portion of the
Content or Software Product; or
vi) translate the content into another language, or allow the content to
be translated by other parties; or
vii) use the Product if you are an Outsourcer without entering into a
ServiceWare Outsourcer License Agreement.
4. COPYRIGHT/CONFIDENTIALITY PROTECTION. Subject to your right to make
Modifications as set forth in Section 2.vi, you recognize that ServiceWare
retains all intellectual property rights in the Product and ServiceWare
confidential information, including without limitation, all derivative works
thereto. You hereby assign to ServiceWare all intellectual property rights you
may now or hereafter possess in the Product and ServiceWare confidential
information, and all derivative works thereof, and agree to (a) execute all
documents, and take all actions, that may be necessary to confirm such rights;
and (b) retain all proprietary marks, legends and patent and copyright notices
that appear on the Product and the ServiceWare confidential information
delivered to you by ServiceWare and all partial copies thereof. You may not copy
or otherwise use the Product and any related documentation, in whole or in part,
except as expressly permitted in this Agreement. You recognize that the Product
contains certain confidential information, and you must reasonably protect the
confidential information contained in the Product and provide at least the same
safeguards afforded your own confidential information, but in no event, shall
you apply less than a reasonable standard of care to protect the confidentiality
of our confidential information. Service Ware does not authorize importing or
publishing a third party's intellectual property or any portion thereof, using
the Software Product. Use of any third party's intellectual property or software
product(s) or other information shall be governed by a separate license
agreement between you and such third party(s).
We agree to defend or, at our option, settle any action or claim asserted
against you based upon a third party's claim that the use of the Product as
delivered by ServiceWare, infringes a United States patent, copyright, trade
name or trade secret, provided that we are given prompt notice of the action or
claim, the right to control and direct the investigation, defense and settlement
thereof; and that you shall reasonably cooperate with us regarding the
foregoing. If such a claim arises, we will, at our option, either procure the
right for you to continue using the Product or repair or replace the Product so
that it is non-infringing, or if we determine that neither of the foregoing are
commercially reasonable, terminate the Product license and refund a prorated
portion of the license fees paid for the Product, such proration to be
calculated on the basis of a sixty (60) month useful life, plus any pre-paid
and unused Annual Subscription Services or Maintenance fees.
We will not be liable for a claim of infringement based on (i) use of other than
the latest unmodified release of the Product available or any modifications made
by you or other third party; (ii) use or combination of the Product with
non-ServiceWare programs if infringement would not have occurred without the
combination; or (iii) use of the Product by you after receiving notice they
infringe a third party's proprietary rights.
5. TERM AND TERMINATION. This Agreement becomes effective upon execution of a
ServiceWare Sales Order Form referencing this Agreement or upon your
installation or use of the Product, whichever occurs first, and this Agreement
and any licenses granted hereunder shall remain in effect unless terminated as
provided herein. This Agreement and/or the Licenses granted hereunder, as
applicable, will terminate automatically based on an uncured material breach by
either party, provided that the breaching party is given thirty (30) days prior
written notice of termination as an opportunity to cure such breach. Upon
termination for any reason, you agree that you will destroy or return to us all
copies of the Product and related documentation.
Sections 4, 6, 7, and 11 shall survive termination of this Agreement.
ServiceWare, Inc. End-User License Agreement (rev. 3-1-99) Page 2 of 4
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ServiceWare
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6. LIMITED WARRANTY.
i) We warrant that for a period of ninety (90) days from the date the Content
Product is shipped to you; and for twelve (12) months from the date the
Software Product is shipped to you: (1) the media on which the Product is
distributed to you will be free from material defects in materials and
workmanship; and (2) the Product will perform substantially in accordance
with the written, published specifications produced solely by us for the
functionality and operability of the Product. Any written or oral
information or advice given by our resellers, distributors, agents or
employees will in no way increase the scope of this warranty.
ii) ServiceWare warrants that each Product as delivered to you shall, under
normal use and service process calendar dates falling on or after January
1, 2000, in the same manner, and with the same functionality, data
integrity and performance, as each Product processes calendar dates on or
before November 31, 1999. We will not be liable for failure to process
calendar dates caused by any computer hardware or software not supplied by
us, including without limitation the failure to provide or process
compliant date data by such non-ServiceWare hardware or software, use of
prior versions of the Product or any alteration, modification or misuse of
the Product.
iii) We will not be liable for problems in the Product caused by alteration or
modification by you of the Product or the software application it is
intended to run on, or for problems arising out of the malfunction of any
computer hardware or software not supplied by us. If the Product fails to
comply with the warranties set forth above, our entire liability and your
exclusive remedy will be replacement of the media on which the Product was
distributed or, at our option, our reasonable effort to make the Product
meet the warranty set forth above.
iv) This limited warranty applies only if you return all copies of the Product
with a copy of your paid invoice to us at 333 Allegheny Avenue, Oakmont,
PA 15139 or to the Seller within the applicable warranty period for the
applicable Product. If we and the Seller cannot make the Product conform
to the above warranty, we will refund a portion of the license fees paid,
pro-rated over the term of the initial warranty period. Any replacement
Product will be warranted for the remainder of the original warranty
period or for thirty (30) days from the date you received the replacement,
whichever is longer.
v) All Services provided by us hereunder will be performed in professional
manner by qualified personnel.
SERVICE WARE MAKES NO WARRANTIES REGARDING THE USEFULNESS OR ACCURACY OF THE
CONTENT PROVIDED HEREUNDER AS PART OF THE CONTENT PRODUCT. WE DISCLAIM ALL OTHER
WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT
TO THE PRODUCT OR SERVICES. Some jurisdictions do not allow exclusion of implied
warranties, so the above exclusion may not apply to you. This limited warranty
gives you specific legal rights, and you may have others which vary from
jurisdiction to jurisdiction.
7. LIMITATION OF LIABILITY. IN NO EVENT SHALL WE OR THE SELLER BE LIABLE FOR ANY
CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER (INCLUDING
WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF
INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO
USE, FURNISHING OR PERFORMANCE OF THE PRODUCT, EVEN IF WE OR THE SELLER HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR LIABILITY
EXCEED THE FEES PAID BY CUSTOMER HEREUNDER THE LIMITATIONS SET FORTH IN THIS
SECTION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY. Because some states do not allow the exclusion or limitation of
liability for consequential, incidental or special damages, the above limitation
may not apply to you.
ServiceWare, Inc. End-User License Agreement (rev. 3-1-99) Page 3 of 4
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ServiceWare
Inc
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8. MAINTENANCE, SUBSCRIPTION SERVICES AND SUPPORT. This Section 8. applies only
if the Product license was purchased directly from ServiceWare. Otherwise,
Maintenance, Subscription Services and Support shall be provided to you as
indicated to you by the Seller.
i) Maintenance for Software Products. Maintenance for Software Products is
available for the initial annual term and any renewal thereof at
ServiceWare's then-current fees. For such initial maintenance term and any
renewal thereof, maintenance shall include Customer Support Services and
all updates an enhancements which are made generally available at no
additional charge to our customers who are current on Maintenance.
ii) Subscription Services for Content Products. Annual Subscription Services
are available for the initial annual term and any renewal thereof at
ServiceWare's then-current fees. Subscription Services for Content
Products shall include Customer Support Services and updated content which
is made generally available at no additional charge to our customers who
are participating in the Subscription Services.
iii) Customer Support Services. Customer support shall entail telephone and
e-mail assistance and consultation to resolve problems with the Product
and shall be provided to those Customers who have purchased either
Maintenance or Subscription Services, as applicable, according to our
then-current customer support practices. We shall have no obligation to
provide support if a problem is caused by a malfunction of hardware,
software not supplied by us, modification of the Product not made by us,
operator error, or use of the Product in a manner not in accordance with
the operating instructions for the Product.
9. EXPORT. You agree that you will not knowingly export or transmit the Product
directly or indirectly, to any restricted countries or in any manner that would
violate United States laws and regulations as shall from time to time govern the
license and delivery of technology abroad by persons subject to the jurisdiction
of the United States, including the Export Administration Act of 1979, as
amended, and any export administration regulations issued thereafter.
10. U.S. GOVERNMENT RESTRICTED RIGHTS. If you are licensing the Product on
behalf of the U.S. Government (the "Government"), the following provisions apply
to you. If the Product is supplied to the Department of Defense ("DoD"), it is
classified as "Commercial Computer Software" under paragraph 252.227-7014 of the
DoD Supplement to the Federal Acquisition Regulations ("DFARS") (or any
successor regulations) and the Government is acquiring only the license rights
granted herein (the license rights customarily provided to non-Government
users). If the Product is supplied to any unit or agency of the Government other
than the DoD, it is classified as "Restricted Computer Software" and the
Government's rights in the Product are defined in paragraph 52.227-19 of the
Federal Acquisition Regulations ("FAR") (or any successor regulations) or, in
the case of NASA, in paragraph 18.52.227-86 of the NASA Supplement to the FAR
(or successor regulations).
11. GENERAL. The limitations of warranty and liability described in Sections 6.
and 7. of this Agreement shall inure to the benefit of our licensors having an
interest in the Product. This Agreement may not be assigned by you without our
prior written consent. If any provision of this Agreement is held to be invalid
and unenforceable under any circumstances, its application in any other
circumstances and the remaining provisions of this Agreement shall not be
affected. No waiver of any right under this Agreement by either party shall be
effective unless given in writing by that party. No waiver of any right by
either party shall be deemed to be a waiver of any other right arising under
this Agreement.
This Agreement is governed by the laws of the Commonwealth of Pennsylvania. The
sole forums for resolving disputes arising under or relating to this Agreement
shall be the State and Federal Courts of the Commonwealth of Pennsylvania, and
the parties hereby consent to the jurisdiction of such courts and agree that
venue shall be in Allegheny County, Pennsylvania.
12. ENTIRE AGREEMENT, YOU AGREE THAT THIS AGREEMENT AND ANY APPLICABLE
SERVICEWARE SALES ORDER FORM IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN YOU AND US, AND THAT IT SUPERSEDES ANY PROPOSAL OR PRIOR
AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION RELATING TO THE SUBJECT
MATTER HEREOF. WE ARE NOT BOUND BY ANY PROVISION OF ANY PURCHASE ORDER, RECEIPT,
ACCEPTANCE, CONFIRMATION, CORRESPONDENCE OR OTHERWISE, UNLESS WE SPECIFICALLY
AGREE TO THE PROVISION IN WRITING. NO VENDOR, DISTRIBUTOR, PROVIDER, RESELLER,
OEM, SALES REPRESENTATIVE OR OTHER PERSON IS AUTHORIZED TO MODIFY THIS LICENSE
AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION OR PROMISE REGARDING THE
PRODUCT WHICH IS DIFFERENT FROM THOSE SET FORTH IN THIS LICENSE AGREEMENT.
* The Knowledge-Pak Viewer(TM) Product contains technology licensed by
Verity, Inc. and use of such technology by End-Users is governed by all
terms and restrictions of this Agreement. Verity, Inc. reserves all rights
in the licensed technology.
ServiceWare, Inc. End-User License Agreement (rev. 3-1-99) Page 4 of 4
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Exhibt-Outsourcer License
-------------------------------------------------------------------------------
A sample copy of your Outsourcer License Agreement is attached.
Tivoli SW SDMP
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ServiceWare
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--------------------------------------------------------------------------------
ServiceWare, Inc. Outsourcer License Agreement
Content and Software Product(s)
YOU SHOULD READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE INSTALLING
OR USING THE SERVICEWARE PRODUCT WHICH HAS BEEN DELIVERED TO YOU WITH THIS
LICENSE AGREEMENT. USE OR INSTALLATION OF THE PRODUCT INDICATES YOUR ACCEPTANCE
OF THESE TERMS AND CONDITIONS. IF YOU NEED A TRANSLATION OF THE FOLLOWING TERMS
AND CONDITIONS, PLEASE CONTACT SERVICEWARE IMMEDIATELY WITHOUT INSTALLING OR
USING THE SERVICEWARE PRODUCT. IF YOU DO NOT WISH TO ACCEPT THESE TERMS AND
CONDITIONS, YOU SHOULD RETURN THE SERVICEWARE PRODUCT IMMEDIATELY AND ANY
LICENSE FEES WHICH YOU HAVE PAID FOR THE SERVICEWARE PRODUCT WILL BE REFUNDED TO
YOU. *
1. DEFINITIONS.
"Authorized Users" means your employees and your third-party consultants
who agree to be bound by the terms and conditions of this Agreement.
"Client(s)" means third parties to whom you provide help desk services in
exchange for fees or other compensation.
"Content Product" means the knowledge-base product delivered on CD,
including the knowledge structures, all accompanying text, graphics and
multimedia, embedded software utilities, and online and hard copy
documentation.
"Outsourcer" means a company that uses the Product to provide help desk
services to third-party Clients for products other than those sold to the
Clients by the Outsourcer, in exchange for fees or other compensation.
"Product(s)" means the "Content Product(s)" and the "Software Product(s)"
licensed hereunder, and any corrections, bug fixes, enhancements, updates
or other modifications thereto which are made generally available and
provided to you as part of Maintenance or Content Subscription Services,
as applicable.
"Seller" means an authorized representative of ServiceWare who is selling
the Product license to you.
"Services" means Customer Support Services provided hereunder.
"Software Product" means computer software program(s) in object code only
including online and hardcopy documentation.
"We", "us", "our" and "ServiceWare" means ServiceWare, Inc.
"You", "your", and "Customer" means the party purchasing an end-user
license to use the Product.
2. PRODUCT LICENSE GRANT. Subject to the terms and restrictions set forth in
this Agreement, ServiceWare grants to you a non-exclusive, non-transferable,
license for the Product provided hereunder solely to:
i) permit use of the Content Product by up to two hundred (200)
Authorized Users per each server licensed hereunder; and
ii) permit use of the Software Product by as many Authorized Users as
you have purchased rights for; and
iii) use the Content or Software Product for your organization's internal
purposes and for the benefit of your Clients; and
iv) copy and transmit solutions contained within the Content Product(s)
for the sole purpose of providing service and assistance to your
Clients; and
v) copy the Content or Software Product for testing, archival or
disaster recovery purposes; and
vi) use the Software Product to develop custom knowledge bases; and
vii) copy, modify, transmit and distribute custom knowledge bases you
create using the Software Product provided, however, that the custom
knowledge bases created by you do not contain (a) the Content
Product, in whole or in part, or (b) the Software Product, in whole
or in part; and
ServiceWare, Inc. End-User License Agreement (rev. 3-1-99) 1 of 5
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viii) modify the Content Product (exclusive of software utilities
contained therein), by
1) adding content developed by you in order to enhance the usability
of the Content Product ("Modifications"); provided that (a) the
Modifications must be done in a manner that does not alter the
technical accuracy of the information contained in the Content
Product, (b) the use of any such Modifications by you in conjunction
with the Content Product shall be subject to the terms and
conditions for use of the Content Product under this Agreement; and
(iii) nothing in this Agreement shall in any manner limit
ServiceWare from independently developing any content or products
which are similar or identical to the Modifications. You shall be
free to copy, modify, distribute and use such Modifications in any
manner provided that such Modifications do not contain the Content
Product, in whole or in part, or
2) modifying ServiceWare content solutions contained in the Content
Product, provided that we retain all right, title and interest in
and to such modified content solutions; such modified content
solutions shall be subject to the same terms and conditions for use
of the Content Product under this Agreement.
3. PRODUCT LICENSE RESTRICTIONS. You may not:
i) use the Content Product for the purpose of creating or augmenting a
third party's knowledge base, database, document or software except
as authorized by us; or
ii) copy any portions of the Content or Software Product, except as
described in Sections 2.iv and v of this Agreement; or
iii) distribute or otherwise make the Content or Software Product or any
portion of the Content or Software Product, available to any third
party by way of the World Wide Web or other means, without the prior
written permission of ServiceWare; or
iv) reverse-engineer, disassemble, decompile, create a derivative work,
or make any attempt to discover the source code of the Software
Product; or
v) assign, re-sell, sub-license, rent, or lease any portion of the
Content or Software Product; or
vi) translate the content into another language, or allow the content to
be translated by other parties.
4. COPYRIGHT/CONFIDENTIALITY PROTECTION. Subject to your right to make
Modifications as set forth in Section 2.viii, you recognize that ServiceWare
retains all intellectual property rights in the Product and ServiceWare
confidential information, including without limitation, all derivative works
thereto. You hereby assign to ServiceWare all intellectual property rights you
may now or hereafter possess in the Product and ServiceWare confidential
information, and all derivative works thereof, and agree to (a) execute all
documents, and take all actions, that may be necessary to confirm such rights;
and (b) retain all proprietary marks, legends and patent and copyright notices
that appear on the Product and the ServiceWare confidential information
delivered to you by ServiceWare and all partial copies thereof. You may not copy
or otherwise use the Product and any related documentation, in whole or in part,
except as expressly permitted in this Agreement. You recognize that the Product
contains certain confidential information, and you must reasonably protect the
confidential information contained in the Product and provide at least the same
safeguards afforded your own confidential information, but in no event, shall
you apply less than a reasonable standard of care to protect the confidentiality
of our confidential information. ServiceWare does not authorize importing or
publishing a third party's intellectual property or any portion thereof, using
the Software Product. Use of any third party's intellectual property or software
products or other information shall be governed by a separate license agreement
between you and such third party(s).
We agree to defend or, at our option, settle any action or claim asserted
against you based upon a third party's claim that the use of the Product as
provided by us, infringes a United States patent, copyright, trade name or trade
secret, provided that we are given prompt notice of the action or claim, the
right to control and direct the investigation, defense and settlement thereof;
and that you shall reasonably cooperate with us regarding the foregoing. If such
a claim arises, we will, at our option, either procure the right for you to
continue using the Product or repair or replace the Product so that it is
non-infringing, or if we determine that neither of the foregoing are
commercially reasonable, terminate the Product license and refund either 1) a
prorated portion of the initial license fees paid for the Software Product, such
proration to be calculated on the basis of a sixty (60) month useful life, or 2)
a pro-rated portion annual license fees paid for the Content Product for the
then-current term, as applicable.
We will not be liable for a claim of infringement based on: (i) use of other
than the latest unmodified release of the Product available or any modifications
made by you or other third party; (ii) use or combination of the Product with
non-ServiceWare programs if infringement would not have occurred without the
combination; or (iii) use of the Product after receiving notice it infringes a
third party's proprietary rights.
5. TERM AND TERMINATION. This Agreement becomes effective upon execution of a
ServiceWare Sales Order Form referencing this Agreement or upon your use or
installation of the Product, whichever occurs first, and shall
ServiceWare, Inc. End-User License Agreement (rev. 3-1-99) 2 of 5
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remain in effect for the term of any license granted hereunder. This Agreement
and/or the Licenses granted hereunder, as applicable, will terminate
automatically based on an uncured material breach by either party, provided that
the breaching party is given thirty (30) days prior written notice of
termination as an opportunity to cure such breach.
Licenses granted for Software Product(s) shall be perpetual. The initial term of
license granted for Content Product(s) shall be for one year, and this Agreement
and the licenses for Content Product(s) granted hereunder shall be automatically
renewed for subsequent annual terms at the then-current fees unless either party
provides the other party with thirty (30) days' prior written notice of its
intent not to renew.
Upon non-renewal or termination for any reason, you agree that you will destroy
or return to us all copies of the Product and related documentation.
Sections 4, 6, 7, and 11 shall survive termination of this Agreement.
6. LIMITED WARRANTY.
i) We warrant that for a period of ninety (90) days from the date the Content
Product is shipped to you; and for twelve (12) months from the date the
Software Product is shipped to you: (1) the media on which the Product is
distributed to you will be free from material defects in materials and
workmanship; and (2) the Product will perform substantially in accordance
with the written published specifications produced solely by us for the
functionality and operability of the Product. Any written or oral
information or advice given by our resellers, distributors, agents or
employees will in no way increase the scope of this warranty.
ii) ServiceWare warrants that each Product as delivered to you shall, under
normal use and service process calendar dates falling on or after January
1, 2000, in the same manner and with the same functionality, data
integrity and performance, as each Product processes calendar dates on or
before December 31, 1999. We will not be liable for failure to process
calendar dates caused by any computer hardware or software not supplied by
us, including without limitation the failure to provide or process
compliant date data by such non-ServiceWare hardware or software, use of
prior versions of the Product or any alteration, modification or misuse of
the Product.
iii) We will not be liable for problems in the Product caused by alteration or
modification by you of the Product or the software application it is
intended to run on, or for problems arising out of the malfunction of any
computer hardware or software not supplied by us. If the Product fails to
comply with the warranties set forth above, our entire liability and your
exclusive remedy will be replacement of the media on which the Product was
distributed or, at our option, our reasonable effort to make the Product
meet the warranty set forth above.
iv) This limited warranty applies only if you return all copies of the Product
with a copy of your paid invoice to us at 333 Allegheny Avenue, Oakmont,
PA 15139 or to the Seller within the applicable warranty period for the
applicable Product. If we and the Seller cannot make the Product conform
to the above warranty, we will refund a portion of the license fees paid,
pro-rated over the term of the initial warranty period. Any replacement
Product will be warranted for the remainder of the original warranty
period or for thirty (30) days from the date you received the replacement,
whichever is longer.
v) All Services provided by us hereunder will be performed in a professional
manner by qualified personnel.
SERVICEWARE MAKES NO WARRANTIES REGARDING THE USEFULNESS OR ACCURACY OF THE
CONTENT PROVIDED HEREUNDER AS PART OF THE CONTENT PRODUCT. WE DISCLAIM ALL OTHER
WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT
TO THE PRODUCT OR SERVICES. Some jurisdictions do not allow exclusion of implied
warranties, so the above exclusion may not apply to you. This limited warranty
gives you specific legal rights, and you may have others which vary from
jurisdiction to jurisdiction.
7. LIMITATION OF LIABILITY. IN NO EVENT SHALL WE OR THE SELLER BE LIABLE FOR
ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER (INCLUDING
WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF
INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO
USE, FURNISHING OR PERFORMANCE OF THE PRODUCT, EVEN IF WE OR THE SELLER HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR LIABILITY
EXCEED THE FEES PAID BY CUSTOMER HEREUNDER. THE LIMITATIONS SET FORTH IN THIS
ServiceWare, Inc. End-User License Agreement (rev. 3-1-99) 3 of 5
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SECTION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY. Because some states do not allow the exclusion or limitation of
liability for consequential, incidental or special damages, the above limitation
may not apply to you.
8. MAINTENANCE, SUBSCRIPTION SERVICES AND SUPPORT. This Section 8. applies only
if the Product license was purchased directly from ServiceWare. Otherwise,
Maintenance, Subscription Services and Support shall be provided to you as
Indicated to you by the Seller.
i) Maintenance for Software Products. Maintenance for Software Products is
available for the initial annual term and any renewal thereof at
ServiceWare's then-current fees. For such initial maintenance term and any
renewal thereof, maintenance shall include Customer Support Services and
all updates an enhancements which are made generally available at no
additional charge to our customers who are current on Maintenance.
ii) Subscription Services for Content Products. Annual Subscription Services
are included for the initial annual license term and any renewal thereof
at ServiceWare's then-current fees. Subscription Services for Content
Products shall include Customer Support Services and updated content which
is made generally available at no additional charge to our customers who
are participating in the Subscription Services.
iii) Customer Support Services. Customer support shall entail telephone and
e-mail assistance and consultation to resolve problems with the Product
and shall be provided to those Customers who have purchased either
Maintenance or Subscription Services, as applicable, according to our
then-current customer support practices. We shall have no obligation to
provide support if a problem is caused by a malfunction of hardware,
software not supplied by us, modification of the Product not made by us,
operator error, or use of the Product in a manner not in accordance with
the operating instructions for the Product.
9. EXPORT. You agree that you will not knowingly export or transmit the Product
directly or indirectly, to any restricted countries or in any manner that would
violate United States laws and regulations as shall from time to time govern the
license and delivery of technology abroad by persons subject to the jurisdiction
of the United States, including the Export Administration Act of 1979, as
amended, and any export administration regulations issued thereafter.
10. U.S. GOVERNMENT RESTRICTED RIGHTS. If you are licensing the Product on
behalf of the U.S. Government (the "Government"), the following provisions apply
to you. If the Product is supplied to the Department of Defense ("DoD"), it is
classified as "Commercial Computer Software" under paragraph 252.227-7014 of the
DoD Supplement to the Federal Acquisition Regulations ("DFARS") (or any
successor regulations) and the Government is acquiring only the license rights
granted herein (the license rights customarily provided to non-Government
users). If the Product is supplied to any unit or agency of the Government other
than the DoD, it is classified as "Restricted Computer Software" and the
Government's rights in the Product are defined in paragraph 52.227-19 of the
Federal Acquisition Regulations ("FAR") (or any successor regulations) or, in
the case of NASA, in paragraph 18.52.227-86 of the NASA Supplement to the FAR
(or any successor regulations).
11. GENERAL. The limitations of warranty and liability described in Sections 6.
and 7. of this Agreement shall inure to the benefit of our licensors having an
interest in the Product. This Agreement may not be assigned by you without our
prior written consent. If any provision of this Agreement is held to be invalid
and unenforceable under any circumstances, its application in any other
circumstances and the remaining provisions of this Agreement shall not be
affected. No waiver of any right under this Agreement by either party shall be
effective unless given in writing by that party. No waiver of any right by
either party shall be deemed to be a waiver of any other right arising under
this Agreement.
This Agreement is governed by the laws of the Commonwealth of Pennsylvania. The
sole forums for resolving disputes arising under or relating to this Agreement
shall be the State and Federal courts of the Commonwealth of Pennsylvania, and
the parties hereby consent to the jurisdiction of such courts and agree that
venue shall be in Allegheny County, Pennsylvania.
12. ENTIRE AGREEMENT, YOU AGREE THAT THIS AGREEMENT AND ANY APPLICABLE
SERVICEWARE SALES ORDER FORM IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN YOU AND US, AND THAT IT SUPERSEDES ANY PROPOSAL OR PRIOR
AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION RELATING TO THE SUBJECT
MATTER HEREOF. WE ARE NOT BOUND BY ANY PROVISION OF ANY PURCHASE ORDER, RECEIPT,
ACCEPTANCE, CONFIRMATION, CORRESPONDENCE OR OTHERWISE, UNLESS
ServiceWare, Inc. End-User License Agreement (rev. 3-1-99) 4 of 5
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ServiceWare Inc.
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WE SPECIFICALLY AGREE TO THE PROVISION IN WRITING. NO VENDOR, DISTRIBUTOR,
PROVIDER, RESELLER, OEM, SALES REPRESENTATIVE OF OTHER PERSON IS AUTHORIZED TO
MODIFY THIS LICENSE AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION OR PROMISE
REGARDING THE PRODUCT WHICH IS DIFFERENCE FROM THOSE SET FORTH IN THIS LICENSE
AGREEMENT.
* The Knowledge-Pak Viewer(TM) Product contains technology licensed by
Verity, Inc. and use of such technology by End-Users is governed by all
terms and restrictions of this Agreement. Verity, Inc. reserves all rights
is the licensed technology.
ServiceWare, Inc. End-User License Agreement (rev 3-1-99)
<PAGE> 22
Exhibit-Trade Mark Guidelines
-------------------------------------------------------------------------------
ServiceWare Guidelines for Use of Trademarks, Service Marks and Copyright
Symbols
NOTE: rightanswers.com, Knowledge Viewer, Knowledge Architech, Knowledge
Channels. KnowledgeNow Knowledge-Paks, Knowledge-Pak Architect, Knowledge-Pak
Viewer, Knowledge-Pak Desktop Suite, Knowledge-Pak Network Suite, Knowledge-Pak
Self-Support Suite, Knowledge-Pak Suite for SAP's R/3, Knowledge-Pak for
Microsoft Office 2000, Knowledge-Pak for Microsoft Internet Explorer 5,
Knowledge-Pak for Y2K, Integration Pak, Success-Pak, Knowledge-Pak University,
and Support at the Speed of Life are registered trademarks, trademarks or
service marks of ServiceWare Inc.
Tivoli has the right to use the following Trademarks, Service Marks and
Copyright Symbols:
Knowledge-Pak(R)
Knowledge-Pak Desktop Suite(TM)
Knowledge-Pak Suite for SAP's R/3(TM)
Knowledge-Pak Complete Suite for SAP's R/3(TM)
Knowledge-Pak for Microsoft Office 2000(TM)
Knowledge-Pak for Microsoft Internet Explorer 5(TM)
Knowledge-Pak for Y2K(TM)
Use of these marks only needs to occur once at first reference.
Tivoli SW SDMP
-13-
<PAGE> 23
Exhibit-Commercial Price List
--------------------------------------------------------------------------------
A sample copy of your Commercial Price List is attached.
Tivoli SW SDMP
-14-
<PAGE> 24
ServiceWare Inc.
KNOWLEDGE - PAK
Content
--------------------------------------------------------------------------------
User Licensing
--------------------------------------------------------------------------------
5 Users Initial Purchase - $5,000
6-20 Users - $1,000 per User
21+ Users - $800 per User
ASA - $180 per User
Service Licensing
--------------------------------------------------------------------------------
Perpetual License
$20,000 per server
Unlimited Users
ASA - $8,000
Discounts
Multi-year Annual Subscription Agreements
(ASAs)
10% off for 2-year contract
20% off for 3-year contract
Delivery Format Exchange
First 90 days: No charge
After 90 days, if customer has current ASA: 25% of then-current list price
After 90 days, if customer does not have current ASA: Full list price
--------------------------------------------------------------------------------
Price List
Knowledge-Pak Desktop Suite(TM)
Knowledge-Pak Network Suite(TM)
Pricing Notes
1. Definition of User: A "user" is someone who provides technical support for
others. This includes first and second-level help desk analysts, field
engineers, and network administrators. A "user" can also be someone who
uses the Knowledge-Pak(R) as part of doing a non-support job (e.g.,
accounting and other office staff, programmers, managers, etc.). User
licenses are reviewed annually to ensure ongoing compliance.
2. Service Pricing: Service pricing is unlimited for users; server pricing
applies to a single format.
3. Definition of Site: A "site" is defined as a single building or campus.
Enterprise licenses are available on a negotiated basis.
4. Multi-user Price is measured per site per order.
5. Initial Warranty Period: The standard initial warranty period for the
Knowledge-Pak Desktop Suite and the Knowledge-Pak Network Suite is 90 days
from the end of the month in which the product is shipped. While under
initial warranty, you will receive phone support for installation and
product questions.
6. The Annual Subscription Agreement (ASA) entitles you to:
(a) regular updates which may include:
i) updated knowledge content to existing product titles
ii) new product titles
(b) unlimited telephone support for product installation and usage.
The agreement is annual and takes effect at the time of purchase.
7. Exchanging Platforms: If you are under the initial warranty period, you
may exchange your Knowledge-Pak Desktop Suite or Knowledge-Pak Network
Suite for a new format, that runs on different support software, at no
charge. If your warranty is expired but you are under a current ASA, you
may exchange formats for 25% of the then-current list price. If you
warranty is expired and you are not under a current ASA, you may exchange
formats at full list price.
8. Product Media: The Knowledge-Pak Desktop Suite and the Knowledge-Pak
Network Suite are normally supplied on CD-ROM. A version can be provided
on diskettes for an additional $150 per set.
9. Terms: All pricing is in U.S. Dollars and subject to change without
notice.
333 Allegheny Avenue o Oakmont, PA 15139 USA o Tel: 412.826.1158 o Fax:
412.826.0577 o [email protected] o www.serviceware.com
(C) 1999 ServiceWare Inc. Knowledge-Paks, the Knowledge-Pak Desktop Suite, the
Knowledge-Pak Network Suite, the Knowledge-Pak Suite for SAP's R/3, and Right
Answers Right Now are registered trademarks, trademarks, or service marks of
ServiceWare Inc. All other references are trademarks or registered trademarks of
their respective companies. All rights reserved.
[ILLEGIBLE] 5/4/99
Right Answers Right Now
-----------------------
|
<PAGE> 25
Exhibit - Mutual Points of Contact
--------------------------------------------------------------------------------
Communication Coordinators
ServiceWare Incorporated
Business:
Jeanne Kohser, Partner Manager
333 Allegheny Avenue
Oakmont, PA 15139
412-826-1158, Ext. 389
412-828-0577 (fax)
[email protected]
Legal:
Melinda Schnap, Contracts Manager
333 Allegheny Avenue
Oakmont, PA 15139
412-1158, Ext. 364
412-828-0577 (fax)
[email protected]
Technical:
John Price, Development Manager
333 Allegheny Avenue
Oakmont, PA 15139
412-826-1159, Ext. 392
412-828-0577 (fax)
[email protected]
Customer Support:
Kathy Campbell, Director of Customer Support
333 Allegheny Avenue
Oakmont, PA 15139
412-826-1159, Ext. 228
412-828-0577 (fax)
[email protected]
International Sales:
Markus Wachsmuth, Director of European Sales
A L'Antienne Poste
Rue Du Bugnon 1
CH-1299 Crans
Geneva, Switzerland
+41-22-960-1240
+41-22-960-1241 (fax)
[email protected]
Royalty Reporting:
Mary Barron, Staff Accountant
333 Allegheny Avenue
Oakmont, PA 15139
412-826-1159, Ext. 472
412-828-0577 (fax)
[email protected]
Tivoli/IBM
Christine DeWeese, Product Manager
9025 North River Rd., 2nd Floor
Indianapolis, IN [ILLEGIBLE] 46240
317-554-7500, Ext. 57583
317-554- (fax)
[email protected]
Jodie Slifka, Contracts Manager
9442 Capital of Texas Hwy, North
Austin, TX 78759
512-436-1275
512-436-1666 (fax)
[email protected]
Tim Reynolds, 2nd Line Development Manager
9025 North River Rd., 2nd Floor
Indianapolis, IN 46240
317-554-7500, Ext. 57578
317-554-7977 (fax)
[email protected]
Mark Boxberger, Director of Customer Support
9025 North River Rd., 2nd Floor
Indianapolis, IN 46240
317-554-7500, Ext. 57736
317-554- (fax)
[email protected]
Christine DeWeEse, Product Manager
9025 North River Rd., 2nd Floor
Indianapolis, IN 46240
317-554-7500, Ext. 57583
Scott Griffin
9442 Capital of Texas Hwy. North
Austin, TX 78759
512-436-
512-436-1681 (fax)
[email protected]
Tivoli SW SDMP -15- 7/27/99
<PAGE> 26
Attachment - Certificate of Originality
--------------------------------------------------------------------------------
You may use this questionnaire to cover on complete Product, even if that
Product includes multiple modules.
Please do not leave any questions blank. Write "not applicable" or "N/A" if a
question is not relevant to the furnished software material. Depending on your
responses, TIVOLI/IBM may require additional information.
1) Please identify the software material including version, release, and
modification numbers for programs and any documentation.
--------------------------------------------------------------------------------
2) Was any portion of the software material written by anyone other than you or
your employees within the scope of their employment?
Yes |_| No |X|
If YES, provide, as an attachment, the following information:
A) Indicate if the whole software material or only a portion thereof was written
by such party, and identify such portion:
(i) Specify for each involved party the name, address and citizenship:
(ii) If the party is a company, how did it acquire title to the software
material (e.g., software material was written by company's employees within the
scope of their employment);
(iii) If the party is an individual, did he/she create the software material
while employed by or under contractual relationship with another party?
Yes |_| No |_|
If YES, provide name and address of the other party and explain the nature of
the contractual relationship:
--------------------------------------------------------------------------------
B) How did you acquire title to the software material written by the other
party?
--------------------------------------------------------------------------------
3) Are any copyright, confidentiality, or proprietary notice(s) present on the
software content material(s)?
Yes |_| No |X|
If YES, please describe such notice(s):
--------------------------------------------------------------------------------
4) Was any portion of the software material (e.g., Code, associated
documentation, etc.) derived from preexisting works (either yours or a third
party's), including any code from freeware, shareware, electronic bulletin
boards, or the internet?
Yes |X| No |_|
If YES, please identify the material, author, owner and copyright notice, if
any, for each of the preexisting materials:
Full Intellectual Property and distribution rights.
--------------------------------------------------------------------------------
5) Does any of the software material (e.g., Code, associated documentation)
included recognizable voice, pictures, icons or other licenses?
Yes |_| No |X|
If YES, how did you acquire the rights to use such recognizable voices,
pictures, icons and other licenses?
--------------------------------------------------------------------------------
6) Provide as an attachment, an explanation of any other circumstance which
might affect TIVOLI/IBM's ability to reproduce, distribute and market this
software material, including whether your software material was prepared from
any preexisting materials which have any: (a) confidentiality oR trade secret
restrictions to others; (b) known or possible royalty obligations to others; (c)
used other preexisting materials developed for another party or customer
(including government) where you may not have retained full rights to such other
preexisting materials.
7) You recognize that, for copyright registration or enforcement of legal rights
relating to the furnished software material, TIVOLI/IBM may need you to produce
additional information related to the software material. You hereby agree to
cooperate with TIVOLI/IBM and provide such information to TIVOLI/IBM at
TIVOLI/IBM's request. As an authorized representative of your company, you
hereby certify the above to be true and accurate.
By: /s/ Rajiv Enand
------------------------------------
(Authorized Signature)
Name: Rajiv Enand
----------------------------------
(Type or Print) (Date)
Title: CEO
---------------------------------
Tivoli SW SDMP -15- 7/27/99
<PAGE> 27
Attachment - Tivoli Development License Agreement
Tivoli
Development License Agreement
Tivoli Systems Inc. ("Tivoli(R)") is committed to working with third-party
vendors to provide customers with the highest quality products that increase
customer satisfaction. ServiceWare, Inc., ("Developer") is a commercial company
whose primary business is the development and marketing of software. Tivoli
recognized the benefit of licensing Tivoli integration toolkits, as described in
Attachment A (referred to as "Licensed Materials"), to Developer to facilitate
its development and marketing of code which enables Developer's software to
operate in conjunction and be compatible with Tivoli Software.
DEFINITIONS
Tivoli Documentation- Tivoli software manuals included in the Tivoli integration
toolkits.
Tivoli Runtime Components - software libraries and event adapters, in binary
executable form or source interpretable form, more specifically described in the
Tivoli Documentation current at the time of delivery of such Runtime Components,
which are delivered under this Agreement and (ii) those copyright scripts which
Tivoli provides to Developer under this agreement and/or which Developer adapts
through Developer's use of the Tivoli integration toolkits.
Tivoli Runtime Documentation- samples which Tivoli provides to Developer under
this agreement, more specifically described in the Tivoli Documentation and
which standardize delivery of Documentation for Developer's Applications.
Module- code developed through the use of the Licensed Materials which enables
the Developer's Application(s) to operate in conjunction and be compatible with
the Tivoli Platform.
First Level Support- collecting problem information from Customers, duplication
of problem symptoms, and supplying corrections, patches, and workarounds where
these exist.
Second Level Support- problem research to determine the nature of problems and
development of workarounds to allow Customers to avoid problems.
Third Level Support- correction of software documentation to resolve the
problem, and the creation of patches to resolve serious problems.
--------------------------------------------------------------------------------
1. LICENSE GRANT
Tivoli grants Developer a license to use the Licensed Materials as defined by
this agreement and any instruction included with the Licensed Materials.
1.1 The Licensed Materials are copyrighted and licensed to the Developer--not
sold. Tivoli does not transfer title to the Licensed Materials to
Developer. Developer obtains no rights to the Licensed Materials other
than those granted under this license.
1.2 Under this license, Developer:
a. may use the Licensed Materials solely to develop, test, and
demonstrate Module(s) that operate in conjunction, and are
compatible, with Tivoli software; The Developer may not use, copy,
merge, or transfer the Licensed Materials or modify the Software,
except as provided in this Agreement;
b. may use the Licensed Materials on up to four (4) servers and four
(4) clients per server at each licensed location identified in
Attachment B--with a limit of three locations per license;
c. may make copies of the Licensed Materials for backup purposes at
each designated location in Attachment B, provided Developer
reproduces the copyright notice and any other legend of ownership on
each such copy or partial copy;
d. may prepare derivative works (i) of the Runtime Components as
specified in Attachment A only as necessary to produce Module(s) in
accordance with the instructions indicating how to create restricted
run-times in Module(s); and (ii) of the "Runtime Documentation" as
specified in Attachment A;
e. may reproduce and distribute the Runtime Components in binary
executable form, and the Runtime Documentation, but solely as
integrated into one or more Module(s). Distribution is pursuant only
to a license that:
1. prohibits the end user from attempting to decipher, decompile,
or disassemble the Runtime Components, except to the extent
applicable laws specifically prohibit such restriction;
2. includes statements that the Module(s) is copyrighted and
licensed; it is not sold, and Developer does not pass title to
the program;
3. disclaims all implied warranties. This disclaimer will include
the implied warranties of non-infringement, merchantability,
and fitness for a particular purpose; and,
4. states, in comparable words, "The collective liabilities of
the seller/licensor and its third party suppliers are subject
to the limitation of liabilities described in this agreement.
Third
Tivoli SW SDMP -17- 7/27/99
<PAGE> 28
party suppliers disclaim all liability for consequential or
other indirect damages. The third party supplier is an
intended beneficiary of these limitations and disclaimers, and
the limitation of liabilities for seller/licensor and its
suppliers are not cumulative
f. will indemnify, hold harmless, and defend Tivoli and its suppliers
from and against any claims or lawsuits, including damages and
attorneys fees, that arise from the distribution and development of
Module(s);
g. may not reverse assemble, reverse compile, or otherwise translate
the Software except as specifically permitted by law without the
possibility of contractual waiver; or
h. may not make any statements to the effect or which imply that any
Module(s) is "certified" or otherwise endorsed by Tivoli, or that
such Module(s)'s performance is guaranteed by Tivoli unless
certification by Tivoli is achieved. Certification will be governed
under a separate mutually agreeable Certification Agreement;
i. may not sublicense, rent, or lease the Licensed Materials.
2. LICENSE FEES
In consideration for the license rights granted herein, Developer will pay
Tivoli the fees specified in Attachment A. If Developer increases the number of
machines on which the Licensed Materials will be used, or changes or adds
Locations, Developer agrees to notify Tivoli and pay applicable charges.
3. SUPPORT SERVICES FEES
3.1 Tivoli will provide to Developer, for the annual fees specified in
Attachment A, its extended maintenance & support plan. This includes:
a. any updates, upgrades, extensions, modifications, patches, and bug
fixes (collectively referred to as "Updates") to the Licensed
Materials made generally available by Tivoli;
b. First, Second, and Third Level Support via Tivoli Customer Support
for the installation and use of Licensed Materials via telephone,
fax, and e-mail. Service is available 24 hours a day, seven days a
week, except Tivoli Holidays; and,
c. Tivoli's on-line Developers Forum for development assistance with
Module(s) and Licensed Materials.
3.2 In addition, Developer may be eligible to receive beta and/or limited
available products (collectively referred to as "Early Release Products")
as they become available for applicable products that comprise the set of
Licensed Materials. Tivoli licenses such Updates & Early Release Products
to Developer under the terms of Section 1 of this Agreement.
4. DEVELOPER RESPONSIBILITIES
4.1 Developer agrees to remit payment of fees for the Licensed Materials as
specified in Attachment A herein.
4.2 Developer is responsible for the payment of any taxes resulting from this
Agreement.
4.3 Developer will use commercially reasonable efforts to ensure that
Module(s) does not contain "viruses" or other harmful code. Developer will
test Module(s) in a manner consistent with industry standards and will use
commercially reasonable efforts to fix any problems prior to making them
commercially available. Developer agrees that any Module(s) will be equal
to or greater in quality than Developer's applications on other platforms.
4.4 Developer will provide First, Second, and Third Level technical support to
the end users of the Module. Tivoli is not responsible for providing
support for Module(s) to Developer's end users.
4.5 Upon Tivoli's request, Developer will provide Tivoli with a
non-confidential business plan covering Developer's use of Tivoli
technologies.
4.6 Developer grants Tivoli a non-exclusive, worldwide right to use,
reproduce, display, exhibit, publish, and distribute names, logos, and
trademarks, solely for the purpose of publicly stating that the Developer
or a third party develops applications that operate in conjunction with
and are compatible with Tivoli software. Developer hereby releases Tivoli
from any and all claims or liabilities whatsoever relating to the names,
logos, and trademarks, including, without limitation, all claims relating
to: (i) any unintentional blurring, distortion, or alteration that may
occur in the production, processing, publication, or distribution of the
names, logos, and trademarks in any and all media; (ii) the rights of
publicity, rights of privacy, or similar rights, however described; and
(iii) the use, reproduction, display, exhibition, publication,
performance, transformation, and distribution of the names, logos, and
trademarks in any and all media.
4.7 If Developer provides Tivoli with comments on Licensed Materials, updates,
services, or materials (collectively referred to as "Feedback") during the
course of this Agreement, Developer grants Tivoli its permission to use
the Feedback in any manner whatsoever and without accounting to Developer.
4.8 Developer will retain ownership rights in the Module(s).
5. TERM AND TERMINATION
5.1 The term of this Agreement is two (2) years from the execution date by
Tivoli, unless earlier terminated as specified herein:
a. Either party may terminate this Agreement without further obligation
or liability if the other party commits any breach of this Agreement
and fails to remedy such breach within thirty (30) days after
written notice by the other party of such breach.
b. Tivoli may terminate this Agreement immediately if Developer or a
substantial portion of its assets are sold, assigned, or otherwise
transferred to a third party; if Developer is adjudicated a bankrupt
or makes an assignment for the benefit of creditors; or if Developer
undergoes a change of control.
Tivoli SW SDMP 7/27/99
-18-
<PAGE> 29
5.2 If the Agreement is terminated, Developer will destroy all copies of the
Licensed Materials.
5.3 Termination or expiration of this Agreement does not affect previously
granted paid-up rights and licenses to Developer's end users for so long
as they remain in compliance with Developers and user license agreements.
5.4 Any terms of this Agreement that by their nature extend beyond termination
or expiration will survive.
6. NO WARRANTY
SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, TIVOLI MAKES NO
WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES
OF NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. CONCERNING THE FUNCTION, PERFORMANCE, OR DOCUMENTATION
FOR THE LICENSED MATERIALS.
Other than as specified in Section 3, Tivoli has no obligation to provide
service, software updates, defect correction, or any maintenance for Licensed
Materials, even if such are or later become available.
7. NO LIABILITY
TIVOLI WILL NOT BE LIABLE FOR DIRECT OR INDIRECT DAMAGES, INCLUDING, WITHOUT
LIMITATION, LOST PROFITS, LOST SAVINGS, OF ANY INCIDENTAL, SPECIAL, OR INDIRECT
DAMAGES OR OTHER ECONOMIC CONSEQUENTIAL DAMAGES, EVEN IF TIVOLI IS INFORMED OF
THEIR POSSIBILITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION
OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY
NOT APPLY TO DEVELOPER.
8. CONFIDENTIAL INFORMATION
Tivoli & Developer hereby establish these terms and conditions governing the use
and protection of confidential information ("Confidential Information") one
party ("the Disclosing Party") provides or discloses to the other party ("the
Receiving Party"):
8.1 The Licensed Materials and any technical support provided by Tivoli shall
be considered Confidential Information of Tivoli. Developer agrees not to
disclose such Confidential Information without Tivoli's prior consent.
Developer understands that Confidential Information is subject to change
by Tivoli at any time without notice and agrees that Developer will not
hold Tivoli responsible for any reliance Developer places on Confidential
information
8.2 Subsequent to disclosures by either party, the Receiving Party shall have
a duty to protect only that Confidential Information which is:
a. first disclosed by the Disclosing Party in tangible form and is
conspicuously marked as "Confidential", or the like, at the time of
disclosure; or,
b. disclosed by the Disclosing Party in non-tangible form and orally
identified as confidential at the time of disclosure, and is
summarized in tangible form conspicuously marked as "Confidential",
or the like, and delivered to the Receiving Party's representative
within thirty (30) days of the original disclosure.
8.3 Receiving Party will treat the Confidential Information with the same care
and discretion to avoid disclosure, publication, or dissemination as
Receiving Party uses with its own similar Information. No obligation of
confidentiality will apply to any Information that (I) Receiving Party
already possesses or rightfully receives from a third party, (II)
Receiving Party develops independently, or (iii) becomes publicly
available without breach of this Agreement.
8.4 The Receiving Party shall adhere to the U.S. Export Administration laws
and regulations and shall not export or re-export any Confidential
Information or technical data or products received from the Disclosing
Party or the direct product of such Confidential Information or technical
data to any prescribed country listed in the U.S. Export Administration
Regulations unless properly authorized by the U.S. Government.
8.5 The duty to protect Confidential Information disclosed in performance of
this Agreement expires five (5) years after execution of this Agreement,
which duly shall survive the earlier expiration or termination of this
Agreement. Should Developer participate in the subsequent Certification
Program, Confidential Information disclosed hereunder will convey to the
certification agreement (hereinafter certification Agreement") and
treatment thereof will be in accordance with the Certification Agreement.
8.6 Other than as indicated above, any information disclosed under this
Agreement will be considered non-confidential.
9. GENERAL
9.1 All payments by Developer to Tivoli pursuant to this Agreement shall be
made in U.S. dollars by wire transfer to the bank and account number
specified below, or such other places as Tivoli may from time to time
specify by notice to Developer:
Texas Commerce Bank, Austin, Texas
ABA #114921172
Account of Tivoli Systems #09911802545
9.2 Each party is an independent contractor and will be responsible for the
direction and compensation of its own employees. Each party is free to
have similar agreements with others and offer products competitive to
those covered by this Agreement. Each party will independently set the
prices for its own products.
-19-
<PAGE> 30
9.3 Each party will identify coordinators who will represent such party for
various aspects of this Agreement and will notify the other party if these
coordinators change.
9.4 Tivoli may, on written notice, modify, withdraw, or otherwise change the
prices and terms of services provided under this Agreement, including the
Licensed Materials specified in Attachment A.
9.5 Tivoli encourages Developer to participate in Tivoli's certification
program (available under a separate agreement). This Agreement does not,
however, grant Developer any rights in any of Tivoli's patents,
copyrights, trademarks, trade names, or service marks.
9.6 Developer may not sell, transfer, assign, or subcontract any of its rights
or obligations under this license. Any attempt to do so is void.
9.7 Developer agrees not to download or otherwise export or re-export the
Licensed Materials or any underlying information or technology except in
full compliance with the United States and other applicable laws and
regulations.
9.8 Use, duplication, or disclosure by the Government is subject to the terms
and conditions in the GSA ADP schedule with IBM.
9.9 This Agreement is governed by the laws of the State of New York, without
regard to its conflicts of laws and provisions. Each party waives its
rights to a jury trial in any litigation. Litigation will only be
commenced in the State of New York.
Neither party will bring a claim under this Agreement more than two
(2) years after the claim arose.
9.10 This Agreement represents the entire agreement between the parties and
supersedes all prior agreements on the subject. Except as set forth in
Section 8.2, this Agreement can only be modified by a writing signed by
both parties. Failure by either party to insist on performance does not
prevent such party from doing so at a later time.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
Tivoli Systems, Inc. ("Tivoli") ServiceWare, Inc. ("Developer")
/s/ Jodie Slifka /s/ Rajiv Enand
------------------------------------ --------------------------------------
Authorized Signature Authorized Signature
Jodie Slifka Rajiv Enand
------------------------------------ --------------------------------------
Name Name
Contract Manager CEO
------------------------------------ --------------------------------------
Title Title
9442 Capital of Texas Highway North 333 Allegheny Avenue
Austin, Texas 78759 Oakmont, PA 15199
8/3/99 8/3/99
------------------------------------ --------------------------------------
Date Date
-20-
<PAGE> 31
ATTACHMENT A
Check Here |_| Tivoli Service Desk Integration Toolkit Bill og Material and Fees
Part Number Description
----------- -----------
Fee
---
5697-TSD Tivoli Service Desk SDK
Consisting of current release of the following Licensed
Materials (software and documentation):
Tivoli Asset Management
Tivoli Problem Management
Tivoli Change Management
Tivoli Service Desk Enterprise Interface
Tivoli Service Desk Developer's Toolkit
Two (2) Annual Maintenance (Section 2) Included in fee above,
$500 each year.
--------------------------------------------------------------------------------
Version 2.0 Page 21 Agreement # TBBXXX-OO
August 2, 1999
<PAGE> 32
Attachment B
Licensed Locations
As allowed in Section 1.2.b herein, the Licensed Materials will be used at
Developer's following location(s):
(To be completed by Developer)
Loocation 1
333 Allegheny Avenue
Oakmont, PA 15139
Version 2.0 Page 22 Agreement # TBBXXX-00
August 2, 1999
<PAGE> 33
Public Sector Attachment
--------------------------------------------------------------------------------
This Public Sector Attachment is considered part of the Agreement. It
establishes additional terms and conditions under which TIVOLI/IBM may, at its
sole discretion, market and license your Products and Services to Public Sector
customers under your End User License at prices established by TIVOLI/IBM.
Public Sector customers include federal government, federal government owned or
affiliated (or sponsored) corporations or other organizations involved in
federal government procurement activities, including but not limited to
organizations that are authorized to procure using IBM's General Services
Agreement (GSA) Schedule Contract, or equivalent documentation, and prime
contractors and subcontractors who are engaged in federal government procurement
opportunities. Though actual usage of the Products may occur outside the
geographical boundaries of the Public Sector's home country, such as embassies,
the end user will be bound by the end user license agreement agreed to by the
Public Sector's home country. If the terms of this Attachment conflict with any
terms of the SRA, the terms of this Attachment will prevail.
When TIVOLI/IBM markets your Products to Public Sector customers, the following
additional terms apply:
1. Any limited license, limited preview, trial or demonstration use of the
Products may be offered to Public Sector customers under the terms of the
TIVOLI/IBM Agreement for Trial or Loan - Federal, or a similar TIVOLI/IBM
agreement, rather than your End User License or your Trial License Agreement.
2. Once the Public Sector customer has decided to procure your Products,
TIVOLI/IBM will attempt to have the Public Sector customer directly execute your
End User License. In the event the Public Sector customer insists on one
contracting party, you authorize TIVOLI/IBM to offer your End User License to
the Public Sector customer such that TIVOLI/IBM and the customer will be the
parties to the license. In such cases, you agree that the license terms are
inapplicable to TIVOLI/IBM, but rather govern the Public Sector customer's use
of your Products.
3. You agree that your End User License terms may be modified as directed by the
procurement rules and regulations of the Public Sector customer or as otherwise
appropriate.
4. Specifically for Public Sector customers in the United States whose
procurement is governed by the Federal Acquisition Regulation ("FAR"), you
agree:
- that the Public Sector customer's use of the Products shall be subject to
FAR 12.212. If for any reason 12.212 is inapplicable, you further agree:
o (a) the minimum rights granted to such customers is that specified in the
Restricted Rights Notice 52.227-14(JUN 1987);
o (b) the Products TIVOLI/IBM is authorized to market and license to Public
Sector customers are published copyrighted commercial computer software meeting
the definition of "Restricted computer software" as defined in FAR 52.227-14(JUN
1987). Such Products also meet the definition of Commercial item as defined in
FAR 2.101(AUG 1996).
o (c) you agree to the following clauses which must be contained in all
TIVOLI/IBM subcontracts:
- (i) FAR 52.226-26, Equal Opportunity
- (ii) FAR 52.222-38, Affirmative Action for Handicapped Workers;
- (iii) FAR 52.222-35, Affirmative Action for Special Disabled and Vietnam
Era Veterans; and
- (iv) FAR 52.247-64, Preference for Privately Owned U.S. Flagged Commercial
Vessels.
o (d) You agree to accurately notify TIVOLI/IBM whether your Products are
domestic end products for purposes of the Buy American Act (BAA), the Trade
Agreements Act (TAA) and related Public Sector statutes and regulations. For
purposes of this subparagraph, a domestic end product which is software consists
of Products as to which the country of media replication, the country of
printing of publications for such Products and the final assembly of such media
and related publications into the Products, completely occurs in the United
States.
5. Insofar as disputes are concerned, you agree that TIVOLI/IBM may resolve
disputes with Public Sector customers in accordance with those customers' own
disputes resolution procedures.
6. In addition to the warranties set forth in the Agreement, you hereby
represent and warrant that you have all the rights to allow TIVOLI/IBM to market
and license your Products to Public Sector customers. You warrant that you are
not suspended or debarred from doing business with any Public Sector customer.
7. To the extent required by regulation or statute, you are to provide
supporting data including that with respect to your Products' pricing, location
of manufacture, and commerciality.
--------------------------------------------------------------------------------
Version 2.0 Page 23 Agreement # T98XXX-00
August 2, 1999
<PAGE> 34
Attachment - Confidential Disclosure Agreement CDA #9903640
This Agreement will provide protection for information to be exchanged between
us which we do not wish to become public ("Information") while maintaining our
ability to conduct our respective business activities. Each of us agrees that
the following terms will apply when one of us or its Affiliate ("Discloser")
discloses Information to the other or its Affiliate ("Recipient") under this
Agreement. "Affiliates" means entities that control, are controlled by, or are
under common control with a party to this Agreement.
1.0 Disclosure
Each time Discloser wishes to disclose specific Information to Recipient, or
wishes to engage in multiple disclosures relating to a specific subject matter,
Discloser will issue a supplement to this Agreement ("Supplement") before
disclosure. The Supplement will contain initial and final disclosure dates, a
non-confidential description of the Information to be disclosed and any
additional or different terms and conditions. The Supplement must be signed by
the Discloser and the Recipient. Information may be disclosed by: (i)
presentation; (ii) delivery; (iii) authorized access, such as to a data base; or
(iv) any other express means. Information must be identified as confidential at
the time of disclosure, and all materials containing Information must have a
restrictive marking. The Discloser will not disclose any Information not
described in a signed Supplement or which Discloser does not have the right to
disclose to the Recipient. For two (2) years after the date of disclosure, the
Recipient will use the same care and discretion to avoid disclosure of the
Discloser's Information as the Recipient uses with its own similar information
which it does not wish to disclose. Subject to this obligation, the Recipient
may use Discloser's Information for any purpose.
2.0 Exceptions
The Recipient may disclose Discloser's Information to: (i) its employees and
contractors, and employees and contractors of an Affiliate, who have a need to
know; and (ii) any other party with the Discloser's prior written consent. Upon
request of the Recipient, the Discloser may make disclosures directly to such
parties on behalf of the Recipient. Prior to any such disclosure or such request
by Recipient, the Recipient must have an appropriate agreement with any such
party sufficient to require the party to treat Information in accordance with
this Agreement. The Recipient may disclose Information to the extent required by
law, but must give the Discloser reasonable prior notice to allow the Discloser
an opportunity to obtain a protective order. Notwithstanding the foregoing, no
obligation will apply to Information that is: (i) already rightfully in the
Recipient's possession or rightfully received by the Recipient without a
nondisclosure obligation; (ii) developed independently by the Recipient; (iii)
publicly available when received, or thereafter becomes publicly available
through no fault of the Recipient; (iv) disclosed by the Discloser without a
signed Supplement as required by Section 1; (v) disclosed by the Discloser to a
third party without a nondisclosure obligation; or (vi) inherently disclosed by
the Recipient in the use, distribution or marketing of any product or service.
3.0 Disclaimers
THE DISCLOSER PROVIDES INFORMATION SOLELY ON AN "AS IS" BASIS. Neither this
Agreement, nor any disclosure of Information hereunder, in any way: (i) grants
to either of us or our Affiliates any right or license under any copyright,
patent, mask work or trademark now or hereafter owned or controlled by the
other; (ii) obligates either of us or our Affiliates to disclose or receive any
Information, perform any work, enter into any license, business engagement or
other agreement; (iii) limits either of us or our Affiliates from developing,
manufacturing or marketing products or services which may be competitive with
those of the other; (iv) limits either of us or our Affiliates from assigning or
reassigning its employees in any way; (v) creates any joint relationship or
authorizes either of us or our Affiliates to act or speak on behalf of the
other; or (vi) limits either of us or our Related Companies from entering into
any business relationship with any other parties.
4.0 General
Neither of us may assign or otherwise transfer our rights or delegate our duties
or obligations under this Agreement without the prior written consent of the
other. Any attempt to do so will be void. The Recipient must comply with all
applicable United States and foreign export laws and regulations. Only a written
agreement signed by both of us can modify this Agreement. Either of us may
terminate this Agreement by providing one month's written notice to the other.
Any provisions of this Agreement which by their nature extend beyond its
termination remain in effect until fulfilled and apply to our respective
successors and authorized assigns. If there is a conflict between the terms of
this Agreement and a Supplement, those of the Supplement will prevail for that
disclosure. This Agreement is governed by the laws of the country in which the
disclosure occurs, except: (i) in Australia, this Agreement will be
Version 2.0 Page 24 Agreement # T98XXX-00
August 2, 1999
<PAGE> 35
governed by the laws of the State or Territory in which the disclosure occurs:
(ii) in Central Europe and Russia, this Aggreement will be governed by the laws
of Austria; (iii) in Estonia, Latvia, and Lithuania, Finnish law will apply;
(iv) in Canada, the laws of the Province of Ontario govern this Agreement: and
(v) in the United States (including if any part of the disclosure is performed
within the United States or if the Information is of United States origin) and
Puerto Rico, and Peoples Republic of China, the laws of the State of New York
govern this Agreement. Any reproduction of this Agreement by reliable means will
be considered an original of this Agreement This Agreement, including any
Supplements, is the complete and exclusive agreement regarding our disclosures
hereunder.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO
Tivoli Systems, Inc. Service West, Inc.
(a wholly owned subsidiary of IBM)
By: Jodie Slifka By: Rajiv Enand
-------------------------------------- --------------------------------------
Signature /s/ Jodie Slifka Date 8/3/99 Signature /s/ Rajiv Enand Date 8/3/99
-------------------------------------- --------------------------------------
-------------------------------------- --------------------------------------
Jodie Slifka
-------------------------------------- --------------------------------------
Printed Name Printed Name Rajiv Enand
-------------------------------------- --------------------------------------
Contract Manager CEO ServiceWare
-------------------------------------- --------------------------------------
Title and Organization Title and Organization
TIVOLI SYSTEMS INC
-------------------------------------- --------------------------------------
Address: Address:
9442 Capital of Texas Highway N. 333 Allegheny Avenue
Austin, TX 78759 Oakmont, PA 15139
Version 2.0 Page 25 Agreement # TBBXXX-OO
August 2, 1999
<PAGE> 36
With respect to the Information identified below, the terms and conditions in
the referenced agreemetn, as modified by any terms and conditions identified
below, will apply to disclosures hereunder:
Disclosure: |X| Tivoli/IBM |X| You
Initial disclosure date: Mutual date of execution
Final disclosure date: 07-22-2001
-----------
Non-confidential description of Information to be disclosed:
Tivoli Systems Inc. and ServiceWare Corporation to hold discussions on
technologies and products for next generation products.
Specific items to be shared: product information, pricing, roadmap,
compatabilities and other financial data as required.
Additional of different terms and conditions (if any):
This supplement and the referenced agreement are the complete and exclusive
agreement regarding disclosures hereunder.
AGREED AND ACCEPTED TO: AGREED AND ACCEPTED TO:
Tivoli Systems, Inc.
(a wholly owned subsidiary of IBM)
By: By:
---------------------------------- -----------------------------------
Signature Date Signature Date
---------------------------------- -----------------------------------
---------------------------------- -----------------------------------
Printed Name Printed Name
---------------------------------- -----------------------------------
---------------------------------- -----------------------------------
Title and Organization Title and Organization
---------------------------------- -----------------------------------
---------------------------------- -----------------------------------
Address: Address:
9442 Capital of Texas Highway N. 333 Allegheny Avenue
Austin, TX 78759 Oakmont, PA 15139
Version 2.0 Page 26 Agreement # TBBXXX-OO
August 2, 1999
<PAGE> 37
Tivoli Systems Inc.
Austin, TX 78759
USA
Phone 512 485 8000
www.tivoli.com
July 6, 2000
ServiceWare, Inc.
333 Allegheny Avenue
Oakmont, PA 15139
ATTENTION: Louis A. Venezia
SUBJECT: License Agreement Addendum Letter for Contract/Supplement 4999TV0055
("Agreement")
Knowledge Pak Desktop Suite & Knowledge Pak SAP R/3 Suite for General
Distribution currently used with Service Desk
Dear Mr. Venezia:
This letter serves as Amendment No. One to the above subject Agreement which the
parties thereto do mutually agree to amend as follows:
Section 10 - Term and Termination
1. Subsection 10.1 Term, shall be extended through March 31, 2001.
The parties acknowledge that they have read this Amendment, understand it, and
agree to be bound by its terms and conditions. Further, with the exception of
the Interim Negotiation Letter dated July 6, 2000, they agree that this
Amendment and the subject Agreement are the complete and exclusive statement of
the agreement between the parties, superseding all proposals of other prior
agreement, oral or written, and all other communications between the parties
relating to this subject.
Please have your authorized representative indicate acceptance thereof by
signing this Amendment and returning one copy to the attention of Jim Wade at
the address below or to fax number (512) 436-1666.
Agreed To:
ServiceWare, Inc.: Tivoli Systems, Inc.
By: /s/ Louis Venezia By: /s/ James D. Wade
-------------------------------- -------------------------------
Authorized Signature Authorized Signature
Name: Louis Venezia Name: James D. Wade
Date: 7/6/00 Date: 7/6/00
