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EXHIBIT 10.15
OEM SOFTWARE DISTRIBUTION AGREEMENT
by and between
UNISPHERE SOLUTIONS INC.
200 WHEELER ROAD
BURLINGTON, MA 01803
USA
- hereinafter referred to as "Unisphere" -
and
SIEMENS AKTIENGESELLSCHAFT, BERLIN AND MUNCHEN,
OTTO HAHN RING 6
81730 MUNCHEN
Federal Republic of Germany
- hereinafter referred to as "Siemens" -
concerning the "DirX-Metadirectory" software
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PREAMBLE - 3
ARTICLE 1 - DEFINITIONS 3
ARTICLE 2 - LICENSE GRANT 5
ARTICLE 3 - COPYRIGHT, TRADEMARKS, TITLE 6
ARTICLE 4 - SUPPLY OF LICENSED SOFTWARE AND SOFTWARE DOCUMENTATION 8
ARTICLE 5 - WARRANTY 9
ARTICLE 6 - INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES 13
ARTICLE 7 - PRICE, PAYMENT AND TAX 14
ARTICLE 8 - AUDITING RIGHTS 14
ARTICLE 9 - MAINTENANCE 15
ARTICLE 10 - CONFIDENTIALITY 16
ARTICLE 11 - LIMITATION OF LIABILITY 18
ARTICLE 12 - FORCE MAJEURE 19
ARTICLE 13 - ARBITRATION 19
ARTICLE 14 - SUBSTANTIVE LAW 20
ARTICLE 15 - TERM OF THE AGREEMENT 20
ARTICLE 16 - TERMINATION 20
ARTICLE 17 - EXPORT REGULATIONS 21
ARTICLE 18 - MISCELLANEOUS 22
ANNEX 1 - PRODUCT DESCRIPTION 25
ANNEX 2 - SOFTWARE DOCUMENTATION 26
ANNEX 3 - PRICE LIST 27
ANNEX 4 - CUSTOMER SUPPORT AND MAINTENANCE 30
ATTACHEMENT A - TROUBLE REPORT 36
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PREAMBLE
WHEREAS, Siemens is a corporation in the business of developing, manufacturing
and marketing software, hardware and peripherals, and
WHEREAS, Siemens has developed the Siemens "DirX-Metadirectory" software and/or
is the owner of or is entitled to dispose of the proprietary rights of and/or
titles to such software product, and
WHEREAS, UNISPHERE desires to obtain license rights in such software product,
and
WHEREAS, Siemens is willing to license such software product to UNISPHERE as
consideration for license fees stated herein on the terms and conditions set
forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
contained UNISPHERE and Siemens agree as follows:
ARTICLE 1 - DEFINITIONS
Wherever used in this Agreement, unless otherwise indicated expressly in the
context of this Agreement, the following terms shall have the following meanings
ascribed to them:
1.1 "Agreement" shall mean this OEM software distribution agreement
including all Annexes and any matters specifically incorporated herein
by reference and made a part hereof.
1.2 "Licensed Software" shall mean the software program presently known as
DirX in Object Code and described in ANNEX 1 and licensed to Unisphere
according to the terms and conditions hereof. Licensed Software
includes Updates and New Versions as defined below.
1.3 "Software Documentation" shall mean the user manuals and all other
information related to the Licensed Software, in either printed or
machine readable form, as set-out in ANNEX 2.
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1.4 "Effective Date" shall mean the date on which this Agreement enters
into force as per Article 15 below.
1.5 "End-User" shall mean any natural person(s), partnership(s), joint
venture(s), association(s), corporation(s), trust(s), governmental
unit(s) or agencies, and other public or private bodies, who are
licensing Licensed Software from Unisphere for their own use.
1.6 "Object Code" shall mean code for the Licensed Software resulting from
translation of Source Code in machine readable format appropriate for
execution by hardware.
1.7 "Product" shall mean the individual DirX products as described in
Annex 1 and identified by separate product numbers.
1.8 "New Product" shall mean any product for which a new product number has
been issued by Siemens and which has substantially different
functionality from the Licensed Software.
1.9 "Source Code" shall mean the program listing for the Licensed Software
in paper form and/or magnetic media written in the syntax of a
well-known programming language.
1.10 "Unisphere Enhancements" shall mean any adaptation, improvement or
enhancement of or to the Licensed Software, including any integration
code, extensions, or schemas, developed at Unisphere's sole expense, to
render the Licensed Software usable or marketable in or in conjunction
with the Unisphere Product.
1.11 "Unisphere Product" shall mean (i) the Unisphere Management Center
software, (ii) any network and service management software applications
that are integrated with the Unisphere Management Center, and (iii) any
Unisphere network elements, such as Unisphere switches and routers,
that are integrated with the Unisphere Management Center.
1.12 "Update" shall mean a new release of the Licensed Software that
incorporates bug fixes and minor changes. It is designated by Siemens
at its sole discretion as a change in the digit(s) to the right of the
decimal point in the product version number.
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1.13 "New Version" shall mean a new release of Licensed Software with major
enhancements and functional improvements. It is designated by Siemens
at its sole discretion as a change in digits to the left of the decimal
point in the product version number.
1.14 "Subscriber(s)" shall mean the total number of users supported by the
network of an End User which has licensed the Licensed Software for use
by a limited number of users in accordance with Annex 3. One subscriber
corresponds to one user profile, which is the highest level record for
user registration in the database of a subscriber management system
used by the End-User. One subscriber may have multiple entries and
billing records for the various services and applications for which
that user has registered.
ARTICLE 2 - LICENSE GRANT
2.1 Siemens hereby grants to Unisphere for the term of this Agreement,
subject to the payment of the license fees as set forth in Article 7,
and subject to the terms and conditions of this Agreement, a
non-exclusive, non-transferable, worldwide license for the purposes of
development, trial/demonstration to End-User(s), distribution,
sublicensing to End-User(s), and support of the Licensed Software and
the Software Documentation in conjunction with the Unisphere Products
by satisfying the following bundling criteria:
The Licensed Software is licensed as a part of a Unisphere Product
consisting of at least 3 bundled software products, where the Licensed
Software represents no more than thirty-five (35)% of the value of the
Unisphere Product, based on the then-current suggested retail prices of
the products as they are generally available to similar customers.
2.2 Siemens agrees that Unisphere's Network and Service Management Group
will be the exclusive distributor of the Licensed Software within
Unisphere.
2.3 Unisphere may copy, modify, reprint, and repackage the Software
Documentation and distribute it to End Users in conjunction with the
licensing of the Licensed Software. The Software Documentation may be
branded under Unisphere trademarks in accordance with Section 3.2
herein. Siemens agrees to provide Unisphere with an electronic version
of the
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Software Documentation in both pdf and Microsoft Word formats.
Software Documentation shall be distributed to Distributors and End
Users only in hard copy or pdf format.
2.4 Unisphere is entitled to grant to the End-User a non-exclusive right to
use the Licensed Software as integrated into the Unisphere Product
provided that the End-User shall be bound by the terms and conditions
set forth in the end user license agreement in accordance with Section
2.6 herein.
2.5 Each End-User shall be entitled to produce one (1) back-up copy of each
item of the Licensed Software, whereby the use of such back-up copy
shall be limited to replace the original Licensed Software, if the
original Licensed Software is inoperable. End-User shall keep records
about the storage of such back-up copies and present such records to
Unisphere on demand.
2.6 Each licensing of Licensed Software to End-Users shall be subject to
legally binding, written license agreements the terms and conditions of
which shall no be less onerous than Articles 2, 3 and 10 of this
Agreement. Unisphere will conclude the license agreements with the
End-Users in such a way that Siemens is a third party beneficiary with
respect to those terms and conditions.
2.7 Certain programs of the Licensed Software and/or the Software
Documentation may be proprietary to third party licensors of Siemens
who may be direct and intended third party beneficiaries of certain
terms and conditions herein relating to the protection of such third
party proprietary Licensed Software and/or Software Documentation.
Unisphere agrees that those third party beneficiaries may enforce
Articles directly against Unisphere as agreed upon in writing on a case
by case basis.
ARTICLE 3 - COPYRIGHT, TRADEMARKS, TITLE
3.1 All rights, title and interest in and to the Licensed Software (and any
part thereof) and the Software Documentation (and any part thereof),
other than those expressly granted herein, shall remain wholly vested
in Siemens or its third party licensors. Unisphere acknowledges that it
has no rights whatsoever in respect of the Licensed Software and
Software Documentation save for those expressly granted to it by this
Agreement.
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3.2 Nothing in this Agreement entitles Unisphere to use any trademark of
Siemens or any other mark confusingly similar thereto, without the
express written consent of Siemens. Notwithstanding the foregoing
sentence, Unisphere is granted the right to use the Siemens trademarks
to provide attribution to Siemens when marketing and distributing the
Licensed Software and Documentation provided that Unisphere observes
the applicable Siemens directives and uses only those trademark designs
approved in writing in advance by Siemens. Siemens acknowledges and
agrees that Unisphere may brand the Licensed Software and Software
Documentation under its own trademarks, service marks or trade names in
conjunction with the marketing and distribution of the Unisphere
Product.
3.3 Unisphere shall maintain and cause all End-Users to maintain, reproduce
and include in all copies of the Licensed Software all notices and
legends (including copyright and trademark notices) included in the
Licensed Software as received from Siemens, unless otherwise agreed in
writing by the parties.
3.4 Unisphere shall in any case use all reasonable efforts to safeguard
Siemens' proprietary rights and the proprietary rights of Siemens'
licensor(s) with regard to the Licensed Software and the Software
Documentation.
3.5 In case of Siemens' knowledge or justified assumption that an End-User
is using the Licensed Software or Software Documentation without proper
authorization, Unisphere shall assist Siemens in enforcing its rights
and shall furnish all available information concerning such improper
use of Licensed Software and/or the Software Documentation. Furthermore
Unisphere shall terminate the agreement with the respective End-User
concerning the Licensed Software with immediate effect on the ground of
material breach and provide Siemens with written confirmation of such
termination.
3.6 Unisphere shall answer all reasonable requests of Siemens without undue
delay whether an End-User of the Licensed Software has been properly
sublicensed by Unisphere or may allegedly infringe Siemens' proprietary
rights.
3.7 Unisphere shall not - and shall prevent others from doing so - copy,
translate, modify, create derivative works, disassemble, reverse
engineer, decompile or otherwise use the
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Licensed Software and Software Documentation except as specifically
authorized hereunder or by compulsory law.
3.8 Unisphere and/or its licensors retain title to, ownership of, and all
interest in the Unisphere Products and Unisphere Enhancements, and all
copies and portions thereof, exclusive of the Licensed Software,
including without limitation all copyrights, trademarks, patent rights,
trade secret rights and other intellectual property or proprietary
rights. No right, title or interest in or to, or ownership of, any
Unisphere Product or Unisphere Enhancement is transferred to Siemens
under this Agreement.
ARTICLE 4 - SUPPLY OF LICENSED SOFTWARE AND SOFTWARE DOCUMENTATION
4.1 Siemens shall deliver to Unisphere an Object Code version of the
current version of Licensed Software and related Software Documentation
("Master Copy") and each Update and New Release, as they are issued,
solely for the purpose of allowing Unisphere, at Unisphere's option and
expense, to copy, manufacture and distribute to End Users and
distributors the Licensed Software in accordance with and to the extent
authorized by this Agreement. Unisphere shall be responsible for the
quality of copies made from such Master Copy. Unisphere shall
distribute one copy for each license granted to an End User. In the
event that the Licensed Software is subject to a License Key, the
Parties agree to amend this Agreement as necessary to enable Unisphere
to continue to distribute the Licensed Software in accordance with this
Agreement.
4.2 Siemens agrees to inform Unisphere of New Products and to offer to
Unisphere, under schedules and terms and conditions to be mutually
agreed upon, any New Product on request of Unisphere.
4.3 Siemens further agrees to provide Unisphere with any new Update and any
New Version for licensing under the terms and conditions of this
Agreement as part of the Customer Support, Maintenance, and Product
Updates as described in Annex 4. The consideration for such Updates and
New Versions is covered by the maintenance fee set out in Annex 3.
4.4 In the event that Siemens announces that it will cease to support the
Licensed Software or any of the related Products within twelve (12)
months, Siemens shall deliver a copy of the
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Source Code for the Licensed Software or Product to Unisphere within
six (6) months of such announcement in order to put Unisphere itself in
the position to further support its customers. Delivery of a copy of
the Source Code to Unisphere pursuant to this Agreement shall not pass
title to the Source Code, but shall affect only a non-exclusive, fully
paid-up, irrevocable, royalty-free license from Siemens to Unisphere to
use, copy and modify the Source Code for the sole purposes of
supporting the Licensed Software distributed under this Agreement.
4.5 Unisphere may request that Siemens provide certain professional
services during the Term of this Agreement to assist Unisphere in
integrating the Licensed Product into the Unisphere Product. Such
services shall be provided pursuant to an annex to this Agreement which
sets forth the scope of work, pricing and discounts, payment terms,
ownership of any intellectual property rights, and any other applicable
terms and conditions.
ARTICLE 5 - WARRANTY
5.1 Siemens warrants that the Licensed Software as originally delivered by
Siemens to Unisphere will function substantially in accordance with the
specifications set-out in the pertaining Software Documentation for a
period of 90 days from the date of shipment of the Master Copy, when
used in accordance with the Software Documentation. Siemens further
warrants that the Licensed Software will not contain any viruses Trojan
horses, worms or time bombs.
5.2 In the event of substantial non-conformance of Software with the
relevant specifications set forth in the Software Documentation,
Siemens shall correct the non-conformance (also referred to as
"defect") in accordance with the following procedures:
i) Unisphere shall promptly notify Siemens thereof in writing and
provide Siemens with evidence and documentation which allow
Siemens to reproduce the claimed defect and resultant output
from the execution of the defective code or data, and
ii) if Unisphere notifies Siemens of a defect in such manner
during the warranty period, Siemens shall, without cost to
Unisphere, eliminate the operation affecting
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defect as soon as reasonably possible by providing to
Unisphere either an undefective medium or, in case of a defect
in the Licensed Software itself, by using all reasonable
efforts to provide a by-pass solution or an Update of the
Licensed Software eliminating the defect within a commercially
reasonable time period. The obligations of this section shall
apply if the defect is due to third party software, freeware
or shareware licensed or otherwise made available to Siemens
and incorporated in the Licensed Software, and
iii) the ninety (90) day warranty period shall begin anew with the
delivery of each undefective medium, by-pass solution, Update
or New Release.
5.3 The warranty hereunder shall not apply to Licensed Software modified by
Unisphere, provided that schemas shall not be considered modifications.
With regard to Licensed Software integrated in or merged with Unisphere
Products, Siemens' warranty only covers the agreed interface
specification.
The warranty shall also not apply to Licensed Software:
- used or installed on hardware other than specified in the release
notes of Licensed Software
- that has been subject to misuse, negligence or accident that is not
the fault of Siemens,
- that has been subject to unauthorized repair by Unisphere or any
third party, or
- exposed to conditions beyond the environments, power or operational
constraints set forth in the Software Documentation.
5.4 Siemens warrants to Unisphere that the services provided in accordance
with section 4.5 herein shall: (i) substantially conform to any
specifications or acceptance criteria as defined and established in the
annex which describes the services to be provided; (ii) be performed in
a workmanlike and professional manner by Siemens personnel (including
its subcontractors) having a level of skill commensurate with the
required tasks set forth in the applicable annex; and (iii) all Siemens
personnel (including its subcontractors) performing services within the
United States, if applicable, are legally permitted to work in the
United
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States.
5.5 SIEMENS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND LIABILITIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OR
REPRESENTATIONS OF WORKMANSHIP, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, DURABILITY, OR THAT THE OPERATING OF THE LICENSED
SOFTWARE WILL BE ERROR FREE.
5.6 If any error is discovered by Unisphere after the end of the warranty
period, Siemens agrees to eliminate such errors on adequate terms and
conditions to be mutually agreed upon. Except for the cases falling
under this warranty section, Unisphere shall receive software support,
Updates and New Versions only if a written maintenance contract is
concluded based upon terms and conditions to be separately agreed.
5.7 Warranty on Year 2000-Compliance
5.7.1 Siemens warrants Year 2000-Compliance of the Licensed Software.
The foregoing warranty is given under the proviso that any input
complies with the requirements laid down in the Software Documentation.
"Year 2000-Compliance" shall mean that neither performance nor
functionality is affected by dates prior to, during and after the
year 2000.
In particular:
- RULE 1. - No value for current date will cause any interruption in
operation.
- RULE 2. - Date-based functionality must behave consistently for
dates prior to, during and after year 2000.
- RULE 3. - In all interfaces and data storage, the century in any
date must be specified either explicitly or by unambiguous
algorithms or inferencing rules.
- RULE 4. - Year 2000 must be recognized as leap year.
5.7.2 The warranty as per Section 5.7.1 above is subject to the following
provisions:
i) If the Licensed Software does not comply with this warranty,
Siemens shall remedy such non-compliance at its own discretion
either by delivery of a new
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equivalent software product or delivery of an Update, provided
that (i) Unisphere has notified Siemens promptly after the
occurrence of the non-compliance, (ii) the non-compliance can
be reproduced and (iii) the non-compliance occurs in the most
recent version of the Licensed Software delivered to
Unisphere.
ii) Siemens warrants Year 2000-Compliance only subject to proper
use of the Licensed Software in accordance with the Software
Documentation and subject to correct input of Licensed
Software-compatible data. The foregoing restriction shall not
apply if Unisphere can prove that the non-compliance would
have occurred even if Unisphere had observed all the
foregoing. Furthermore Siemens does not warrant the Year
2000-Compliance for Licensed Software modified by Unisphere or
any one other than Siemens, unless Unisphere can prove that
the modification did not affect the non-compliance. This
warranty does not include any warranty regarding the
interoperability of Licensed Software with other products. If
it turns out during the removal of the non-compliance that the
non-compliance was caused by (i) improper use or (ii)
modification of the Licensed Software or (ii) missing
interoperability with products other than Licensed Software,
Unisphere agrees to bear all costs incurred by Siemens in
connection with the remedy of the non-compliance.
5.7.3 AS FAR AS NOT OTHERWISE MANDATORILY REQUIRED BY APPLICABLE LAW, THE
FOREGOING PROVISIONS AS TO YEAR 2000-COMPLIANCE OF CONTRACT PRODUCTS
REPRESENT THE SOLE AND EXCLUSIVE REMEDY OF UNISPHERE AND THE SOLE AND
EXCLUSIVE LIABILITY OF SIEMENS IN CASE OF YEAR 2000-NON-COMPLIANCE AND
SHALL SUPERSEDE ANY AND ALL OTHER YEAR 2000 WARRANTY OR LIABILITY
PROVISIONS CONTAINED IN THIS AGREEMENT, IN ANY OTHER CONTRACTUAL
AGREEMENT, WRITTEN OR ORAL, OR IN ANY STANDARD TERMS AND CONDITIONS.
5.7.4 The warranty under this Section 5.7 shall be valid until December 31,
2000. Siemens shall not be responsible and/or liable for any claims
notice of which is received by Siemens later than January 31, 2001.
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ARTICLE 6 - INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES
6.1 Except as set forth below, and subject to the conditions and
limitations stated herein below, Siemens agrees at its expense to
defend and indemnify Unisphere from and against any and all claims,
demands and actions brought against Unisphere and based upon any
infringement of intellectual property rights by the Licensed Software
or Software Documentation licensed to Unisphere by Siemens, such as but
not limited to patents, utility models, design patents, trade secrets
or copyrights owned by third parties ("Claims"). Siemens shall hold
Unisphere harmless and indemnify Unisphere from any and all damages, or
expenses finally awarded by a court against Unisphere in connection
with such claims, including without limitation, reasonable attorney's
fees. As a condition of such defense and indemnification as above,
Unisphere shall give Siemens prompt written notice of any alleged
Claim, full authority to defend and settle such Claims and all
reasonable assistance to Siemens (at Siemens' expense) as may be
requested by Siemens.
If, as a result of a Claim, Unisphere becomes enjoined from using the
Licensed Software or Software Documentation, Siemens shall, at its
election (i) procure for Unisphere the right to use such licensed
software or software documentation, (ii) provide unisphere with a
replacement product that is non-infringing and meets substantially the
same functional specifications as the Licensed Software, or (iii)
refund to Unisphere the depreciated value of the infringing Licensed
Software or Software Documentation purchased or licensed from Siemens
that Unisphere is enjoined from using against written certification
that the Licensed Software items concerned have been deleted from all
related Unisphere Product.
6.2 Siemens shall have no obligation to defend or indemnify Unisphere with
respect to any Claim of infringement of any intellectual property
rights, statutory, express or implied arising out of or relating to
i) combinations or incorporations of any Licensed Software or of
elements thereof with or into other platforms or installations
than specified in this Agreement, or.
ii) the use or incorporation in the Licensed Software of any
design technique or specification furnished by Unisphere.
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6.3 THE FOREGOING SECTION STATES THE ENTIRE LIABILITY OF SIEMENS AND THE
EXCLUSIVE REMEDY OF UNISPHERE WITH RESPECT TO INFRINGEMENT BY LICENSED
SOFTWARE AND SOFTWARE DOCUMENTATION OF ANY INTELLECTUAL PROPERTY
RIGHTS, STATUTORY, EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY STATED IN
THIS SECTION, ALL WARRANTIES AGAINST INFRINGEMENT OF INTELLECTUAL
PROPERTY RIGHTS AS MENTIONED BEFORE ARE HEREBY DISCLAIMED.
ARTICLE 7 - PRICE, PAYMENT AND TAX
7.1 As compensation for the license rights granted to Unisphere under this
Agreement, Unisphere agrees to pay to Siemens the license fees as
stated in ANNEX 3. Any and all payments hereunder shall be made in US
dollars, if not specifically stated otherwise. License fees shall be
paid within thirty (30) days after the end of each calendar quarter in
which Licensed Software was installed by Unisphere at End User sites.
7.2 Any and all taxes, charges and/or other duties (hereinafter "TAXES")
imposed by the laws of country of Licensee with respect to any payments
to be made by Licensee to Siemens under or in connection with this
Agreement, shall be borne and paid by Licensee. Any other TAXES, except
for potential German VAT, imposed on such payments shall be borne and
paid by Siemens.
ARTICLE 8 - AUDITING RIGHTS
8.1 Unisphere shall keep records of all sublicenses granted to End-Users.
Siemens shall have the right to appoint an independent auditor to
inspect Unisphere's premises and such records as well as such documents
as he may reasonably require for the purpose of verifying Unisphere's
compliance with its Licensed Software-related obligations hereunder.
Such audit shall be made during the normal hours of business and be
conducted at Siemens' expense, except in those cases where the auditor
detects deviations from Unisphere's contractual obligations to the
disadvantage of Siemens, in which latter case the cost of the audit
shall be borne by Unisphere in addition to the rights
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Siemens may have as a consequence of Unisphere's non-fulfillment of its
contractual obligations.
8.2 Any and all reports or records or notes taken by the auditor shall be
maintained by the auditor and Siemens in confidence as confidential
information of Unisphere. This confidentiality shall not affect
Siemens' rights to settle the disputes in accordance with the
conditions of Article 13.
ARTICLE 9 - MAINTENANCE
9.1 Subject to the terms of Annex 4, Siemens will provide Customer Support,
Maintenance, and Product Update services. As more fully described in
Annex 4, these services comprise the following:
- the submission of service reports about requested items,
- responding to and resolving product problems,
- telephone consulting with a view to identifying the error for the
generation of diagnostic documentation via hot line,
- support via teleservice (based on mutually agreed means of
connection),
- elimination of errors as described under Article 5,
- supplying of Update Releases and Version Releases,
- Siemens will support and consult Unisphere on the implementation
of new versions to enable Unisphere to install new versions at
their customer sites.
Siemens' software maintenance service shall apply in relation to all
released Updates and New Versions delivered.
9.2 Unisphere will communicate to Siemens suspected errors in the Licensed
Software along with all information required in order to reproduce the
error. Siemens agrees to respond and correct such errors in the manner
and within the period given in Annex 4. All bug and error reports shall
be made on Siemens' standard report forms as notified to Unisphere by
Siemens from time to time. Siemens shall not be obliged to take notice
of bug and error reports which have not been submitted in accordance
with stated procedures.
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9.3 Siemens will promptly notify Unisphere of any bugs and errors in the
Licensed Software.
9.4 The maintenance services for the Licensed Software are subject to the
maintenance fees set out in ANNEX 3 and will only be provided by
Siemens as agreed in this Article 9 for a maximum period of three (3)
years after a succeeding release of each New Version of the Licensed
Product.
9.5 Siemens represents and warrants that the maintenance services shall be
provided in accordance with this Agreement and with reasonable care and
skill.
ARTICLE 10 - CONFIDENTIALITY
10.1 Unless otherwise expressly provided for herein either party hereto
undertakes to keep confidential, even after termination of this
Agreement, any information and data, including but not limited to any
kind of business, commercial or technical information and data
disclosed between the parties in connection with this Agreement,
irrespective of the medium in which such information or data is
embedded which shall:
10.1.1 if in written form, be marked "Confidential" or similarly
legended by the disclosing party before being turned over to
the receiving party, or
10.1.2 if orally disclosed be identified as such prior to disclosure
and summarized in writing by the disclosing party and said
summary will be given to the receiving party within 30 days of
the subject oral disclosure. In case of disagreement, the
receiving party must make any objections to the contents of
the summary, in writing, within 30 days of receipt.
Such information will hereinafter be referred to as "Confidential
Information".
10.2 The obligation as per Section 10.1 above shall, however, not apply to
any information which:
10.2.1 is already in the public domain or becomes available to the
public through no breach by a party to this Agreement;
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10.2.2 was rightfully in the receiving party's possession without
obligation of confidentiality prior to receipt from the
disclosing party as proved by the written records of the
receiving party;
10.2.3 can be proved to have been rightfully received by the
receiving party from a third party without obligation of
confidentiality;
10.2.4 is independently developed by the receiving party as proved by
its written records;
10.2.5 is not in writing and marked with a legend indicating the same
is confidential, or if disclosed in non-tangible form, is not
summarized in writing and marked "Confidential" or
"Proprietary" within thirty (30) days of the disclosing
party's disclosure; or
10.2.6 is required to be disclosed by any law or regulation, or by
the decree of any competent tribunal; provided that the
disclosing party shall limit its disclosure to the information
required to be disclosed and shall use reasonable efforts to
provide the maximum possible notice to the other party prior
to such disclosure and assist such party in seeking protection
of the information to be disclosed.
10.3 The Confidential Information shall be treated by the receiving party
with the same degree of care to avoid disclosure to any third party as
is used with respect to the receiving party's own information of like
importance which is to be kept confidential.
10.4 The receiving party shall use the disclosing party's Confidential
Information only for the implementation of this Agreement and will
derive no rights of any kind, in particular no rights of prior use,
from the fact that it as a result of the Confidential Information may
possibly obtain knowledge of patentable inventions for which the other
party may possibly apply for intellectual property rights.
10.5 The receiving party shall disclose Confidential Information only to
those of its own employees, who have a reasonable need to know said
Confidential Information and who are bound to confidentiality by their
employment agreements or otherwise.
10.6 Upon termination or expiration of this Agreement, each party will upon
respective request of the other party immediately return to the other
party the Confidential Information in
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tangible form including any copies thereof or confirm in writing that
such information and any copies thereof have been destroyed.
10.7 This Article 10 shall survive any termination or expiration of this
Agreement.
10.8 The parties acknowledge that a breach by either party of the provisions
of this Article 10 will result in irreparable injury to the affected
party for which monetary damages alone would not be an adequate remedy.
In the event of a breach or threatened breach of this Article 10, the
party affected shall be entitled to specific performance and injunctive
or other equitable relief as a remedy. Any such relief shall be in
addition to and not in lieu of any appropriate relief in the form of
monetary damages.
ARTICLE 11 - LIMITATION OF LIABILITY
11.1 Unisphere and Siemens agree that the license fees for Licensed Software
negotiated in this Agreement would not adequately compensate Siemens
for unilaterally assuming all risks associated with its performance,
breach or non-performance, and that to avoid having to increase its
license fees to adequately protect against such unlimited risk,
Unisphere and Siemens will be bound by this limitation on Siemens'
liability.
11.2 Siemens will without limit be liable for personal injury and third
party property damage for which Siemens can be held responsible.
Siemens will be liable for damages to Unisphere's property for which
Siemens can be held responsible up to a maximum amount of one million
US $(1,000,000.00 US $) per damage event.
11.3 NEITHER PARTY SHALL BE LIABLE, WHETHER IN CONTRACT, WARRANTY, OR TORT
(INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER LEGAL OR
EQUITABLE THEORY FOR BUSINESS INTERRUPTION OR LOST REVENUE, LOSS OF
PROFITS OR SALES, COST OF CAPITAL, OR FOR ANY SPECIAL, INCIDENTAL,
PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES. THIS LIMITATION SHALL NOT
APPLY TO CLAIMS BASED ON FRAUD OR INTENTIONAL MISREPRESENTATION.
11.4 The above mentioned limitations of liability shall not apply to the
extent Siemens has
<PAGE> 19
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liability insurance protection.
11.5 This Article 11 shall survive any termination or expiration of this
Agreement.
ARTICLE 12 - FORCE MAJEURE
Neither party shall be liable to the other for failure or delay in the
performance of any of its obligations under this Agreement for the time and to
the extent such failure or delay is caused by force majeure such as, but not
limited to, riots, civil commotions, wars, strikes, lock-outs, hostilities
between nations, governmental laws, orders or regulations, actions by the
government or any agency thereof, storms, fires, sabotages, explosions or any
other contingencies beyond the reasonable control of the respective party and of
its sub-contractors (hereinafter referred to as "Force Majeure"). In such
events, the affected party shall immediately inform the other party of such
circumstances together with documents of proof and the performance of
obligations hereunder shall be suspended during, but not longer than, the period
of existence of such cause and the period reasonably required to perform the
obligations in such cases. Unavailability of funds shall not be deemed Force
Majeure.
ARTICLE 13 - ARBITRATION
13.1 Any differences or disputes arising out of or in connection with this
Agreement or out of or in connection with agreements regarding its
performance, including any questions regarding the existence, validity
or termination of this Agreement or agreements regarding its
performance, during the term of this Agreement or thereafter shall be
settled by an amicable effort of both parties. An attempt to arrive at
a settlement shall be deemed to have failed as soon as one of the
parties so notifies the other party in writing.
13.2 If an attempt at settlement has failed, the dispute shall be finally
settled under the International Rules of the American Arbitration
Association, by three arbitrators.
13.3 Each party shall nominate one arbitrator and those arbitrators shall
agree on the third arbitrator within 30 days. Should the two
arbitrators fail, within the above time-limit, to reach agreement on
the third arbitrator, such third arbitrator shall be appointed by the
American Arbitration Association.
<PAGE> 20
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13.4 Unless otherwise agreed by the parties in writing, for disputes
originated by Unisphere the seat of arbitration shall be Munich and for
disputes originated by Siemens the seat of arbitration shall be Boston,
Massachusetts.
13.5 The language to be used in the arbitration proceeding shall be English.
13.6 Nothing in this Article shall prohibit either party from seeking
injunctive or other equitable relief in any court of competent
jurisdiction.
ARTICLE 14 - SUBSTANTIVE LAW
All disputes shall be settled in accordance with the provisions of this
Agreement and all other agreements regarding its performance, otherwise in
accordance with the substantive law in force in Germany without reference to
conflict of laws principles. The United Nations Convention on Contracts for the
International Sale of Goods of April 11, 1980 shall not apply.
ARTICLE 15 - TERM OF THE AGREEMENT
15.1 The term of this Agreement shall commence when the signature by each
party has been executed (Effective Date). Unless extended prior to
expiration this Agreement will continue in effect for a period of five
(5) years from the Effective Date. Thereafter it shall be automatically
renewed for another one year's term provided it has not been terminated
by either party with six months prior written notice to the end of the
current term.
15.2 The rights to use paid-up copies of the Licensed Software will not be
affected by the expiration hereof pursuant to 15.1 of this Agreement.
ARTICLE 16 - TERMINATION
16.1 This Agreement may by written notice be forthwith terminated by a Party
having such right as herein provided - and save of any other rights
such Party may have - upon the occurrence of either one or more of the
following events stated below:
<PAGE> 21
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- by either party in the event that the other has failed in the
performance of any material obligation under this Agreement by
giving not less than 30 (thirty) days written notice
specifying any such breach (hereinafter referred to as "the
Notice"), unless within the period of such Notice all breaches
specified shall have been remedied or a plan for remedying
such breaches has been proposed by the other party and has
been accepted by the first party mentioned during such 30
(thirty) days period; or
- by either party in the event that the other party voluntarily
files a petition in bankruptcy or has such a petition
involuntarily filed against it (which petition is not
discharged within thirty (30) days after filing), or is placed
in an insolvency proceeding, or if an order is issued
appointing a receiver or trustee or a levy or attachment is
made against a substantial portion of its assets which order
shall not be vacated, or set aside within thirty (30) days
from date of issuance, or if any assignment for the benefit of
its creditors is made, or
- by either party if there is a change in control of the other
party which in the reasonable opinion of the terminating party
adversely affects such party's position, rights or interests.
16.2 Upon termination or expiration of this Agreement, Unisphere shall pay
Siemens immediately any amounts due to Siemens and cease any use of the
Licensed Software, including copies thereof and Software Documentation
in Unisphere's possession, except to the extent necessary to meet any
contractual obligations under then existing support and maintenance
contracts. Further, Unisphere may continue to distribute any Licensed
Software and Software Documentation in its inventory for a period of
six (6) months following termination or expiration of this Agreement.
All obligations of Unisphere accrued prior to termination, and those
obligations relating to confidentiality, protection of the Software and
the Software Documentation and restriction to use shall survive
termination. Any sublicenses. granted to End-Users prior to the
termination or expiration of this Agreement shall not be affected by
such termination or expiration.
ARTICLE 17 - EXPORT REGULATIONS
Each party shall comply with all export laws applicable to the Licensed Software
and/or the
<PAGE> 22
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Software Documentation in effect from time to time. Without limiting the
generality of the foregoing, each party expressly warrants that it will not
directly or indirectly export, re-export, or transship the Licensed Software or
the software documentation in violation of any export laws, rules or regulations
of the EU, Germany or the United States. Unisphere, when sublicensing the
Licensed Software to End-users, shall also oblige such End-users to adhere to
the aforementioned export provision.
ARTICLE 18 - MISCELLANEOUS
18.1 This Agreement shall not be modified or amended except by a written
agreement dated subsequently to the date of this Agreement and signed
on behalf of Siemens and Unisphere by their respective duly authorized
representatives as an amendment hereto. This requirement of written
form can only be waived in writing.
18.2 All Annexes shall be considered as an integral part of this Agreement.
18.3 Unisphere shall not, without the prior written consent of Siemens,
deliver the Licensed Software, or any technical data relating thereto,
to any branch or agency of the United States Government without a
written predetermination that such items will be protected by limited
or restricted rights as set forth in DOD FAR 52.227-7013 or equivalent
rights and without taking all required actions to preserve such rights
including, without limitation; (a) marking the Licensed Software with
the then currently prescribed Restricted Rights Legend, (b) marking
technical data with the then currently prescribed Limited Rights
Legend, and (c) ensuring that the standard Department of Defense
"Rights in Technical Data and Computer Software" clause at DOD FAR
52.227-7013 and the "Restrictive Markings on Technical Data" clause at
DOD FAR 52.227-7018 or the equivalent clauses for other government
agencies are complied with to protect the ownership interest of
Siemens.
18.4 Nothing contained in this Agreement shall be construed as creating a
joint venture, partnership or employment relationship. Except as
specified herein, neither party shall have the right, power or implied
authority to create any obligation or duty, express or implied, on
behalf of the other party hereto.
18.5 Press releases or other information on the conclusion/content of this
Agreement shall only
<PAGE> 23
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be made available to third parties, in particular press agencies, with
the prior written consent of the other party hereto.
18.6 Notices and communications between Unisphere and Siemens shall be given
in writing or by e-mail or facsimile in English language to the
following addresses of the parties or to such other address as the
party concerned may subsequently notify in writing to the other party:
If to Unisphere:
Partner Manager Business Development Department
200 Wheeler Road
Burlington, MA 01803
Attn: Partnership Manager
Facsimile: 781-313-8721
E-Mail: [email protected]
------------------------------
and, if to Siemens:
Siemens Aktiengesellschaft
Attn.: Peter Schnitter, Christian Wiesinger
Otto Hahn Ring 6
81730 Munchen
Germany
Tel. +49-(89)-636-48440/45674
Fax +49-(89)-636-45860
E-Mail: [email protected]
------------------------------
[email protected]
----------------------------------
18.7 A waiver of any default by either party of any of the terms and
conditions of this Agreement shall not be deemed to be a continuing
waiver or a waiver of any other provisions of this Agreement, but shall
apply solely to the instances to which such waiver is granted.
18.8 Should individual provisions of this Agreement be legally ineffective
or unfeasible for legal reasons then, unless the basic intentions of
the parties under this Agreement are substantially jeopardized, the
validity of the remaining provisions of this Agreement shall not be
affected thereby. In such a case the parties shall come to an agreement
approximating as closely as possible the arrangement originally
envisaged in this Agreement.
18.9 The titles to the Articles of this Agreement are for convenience or
reference only and are
<PAGE> 24
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not part of this Agreement and shall not in any way affect the
interpretation thereof.
18.10 This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all
previous communications, representations, understanding and agreements,
either oral or written, between the parties with respect to such
subject matter hereof.
18.11 Neither the benefits nor the obligations of this Agreement may be
assigned or transferred in any manner, except with the prior written
consent of the other party and except as part of a transfer of all or
of a substantial part of the activities to which the subject matter of
this Agreement pertains whether by sale, merger or consolidation. In
case of such a transfer the respective party shall require the
transferee, assignee or successor to comply with this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
by their respective duly authorized representatives.
Date: Date:
Unisphere Solutions Inc. Siemens Aktiengesellschaft
/s/ Dana Rasmussen [Illegible]
------------------------ --------------------------
Dana Rasmussen Finance & Admin.
VP Product Management 17.3.2000
3-29-2000
[Illegible]
--------------------------
President Meker Directors Services
20/3/2000
<PAGE> 25
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ANNEX 1 - PRODUCT DESCRIPTION
Where DirX is bundled into Unisphere Product (also known as "Unisphere
Management Center"), Licensed Software shall include license rights to all of
the following DirX Products and components at an all-inclusive price as set
forth in Annex 3:
DirXserver
DirXweb
DirXmetahub
DirXmetahub-ODBC
DirXmetahub-NT
DirXmetahub-Notes
DirXmetahub-Exchange
Description of current release can be found at Siemens Homepage at
http://www.siemens.com/directory
-------------------------
<PAGE> 26
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ANNEX 2 - SOFTWARE DOCUMENTATION
DIRX V5.0 Introduction (January 1999)
DIRX V5.0 Administration Guide (December 1999)
DIRX V5.0 Windows NT Security Integration Guide (December 1999)
DIRX V5.0 Administration Reference (December 1999)
DIRX V5.0 Advanced Administration Notes (January 1999)
DIRXWEB V5.0 Reference (June 1999)
DIRXMETAHUB V5.0 Administration Reference (June 1999)
<PAGE> 27
- 27 -
ANNEX 3 - PRICE LIST
LICENSE FEES
For product installations with corresponding numbers of subscribers, Unisphere
shall pay to Siemens a license fee for all product and components of the
Licensed Software as described in Annex 1 according to the pricing table below.
Payments shall be made at the end of each calendar quarter for all product
installations made during that quarter.
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
No. of 2,500 5,000 10,000 10,001- 50,000- 100,001- 250,001- 500,001- 1,000,001- 2,500,001- 5,000,001-
Subscribers/ 50,000 100,000 250,000 500,000 1,000,000 2,500,000 5,000,000 10,000,000
installation
----------------------------------------------------------------------------------------------------------------------------------
License Fee in 7,500 12,500 18,000 50,000 85,000 162,500 200,000 300,000 600,000 950,000 1,600,000
US $
----------------------------------------------------------------------------------------------------------------------------------
License Fee in 6,250 10,000 12,600 35,000 59,500 113,750 140,000 210,000 450,000 850,000 1,600,000
US$ *)
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
*) Prices in that row apply with minimum commitment of a $400,000 License Fee
per year due at the beginning of a fiscal year or, in the alternative, at
Unisphere's option, after exceeding $400,000 in License Fees in a fiscal year.
If Unisphere exceeds $400,000 in License Fees in a fiscal year, the lower prices
will apply in the subsequent year. If Unisphere does not exceed $400,000 in a
fiscal year, the original prices will apply in the subsequent year.
INCREASES IN THE NUMBER OF SUBSCRIBERS:
Any time there is an increase in the number of Subscribers that exceeds a new
pricing tier for an End User who has previously licensed Licensed Software,
Unisphere must pay to Siemens, in the next quarterly payment due, an additional
amount calculated as the difference between new and old tier to reflect the
increased number of Subscribers for that End User
MAINTENANCE FEES
Maintenance fees will be set at 15% of net quarterly license fees and shall
include 3rd Line Product Support and Maintenance in accordance with Annex 4 and
All Updates and New Versions. Unisphere agrees to pay a minimum of $40,000, for
maintenance fees at the end of the current fiscal year for the time period of
April, 1st 2000 to September 30, 2000 and $120,000 for the forthcoming calendar
years due at the end of the calendar year. If total maintenance fees for the
<PAGE> 28
- 28 -
calendar year amount to less than the targeted minimum, Unisphere agrees to pay
to Siemens the difference between the actual amount paid for maintenance fees
and the targeted minimum.
Renewal Maintenance Fees
Calendar Year 2001: Commencing at the beginning of the quarter ending March 31,
2001 and continuing until the beginning of the quarter ending March 31, 2002
Unisphere shall pay to siemens on the first business day of each calendar
quarter a renewal and support maintenance fee equal to the product of (i) the
license fees payable in respect of the corresponding calendar quarter in 2000,
(ii) 0.9 and (iii) 15%.
Calendar Year 2002: Commencing at the beginning of the quarter ending March 31,
2002 and continuing until the beginning of the quarter ending March 31, 2003,
Unisphere shall pay to Siemens on the first business day of each calendar
quarter a renewal and support maintenance fee equal to the sum of (x) the
product of (i) the license fees payable in respect of the corresponding calendar
quarter in 2001, (ii) 0.9 and (iii) 15% plus (y) the product of (i)the license
fees payable in respect of the corresponding calendar quarter in 2000, (ii) 0.81
and (iii) 15%.
Calendar Year 2003: Commencing at the beginning of the quarter ending March 31,
2003 and continuing until the beginning of the quarter ending March 31, 2003,
Unisphere shall pay to Siemens on the first business day of each calendar
quarter a renewal and support maintenance fee equal to the sum of (x) the
product of (i) the license fees payable in respect of the corresponding calendar
quarter in 2002, (ii) 0.9 and (iii) 15% plus (y) the product of (i) the license
fees payable in respect of the corresponding calendar quarter in 2001, (ii) 0.81
and (iii) 15% plus (Z) the license fees payable in respect of the corresponding
calendar quarter in 2000, (ii) 0.729 and (iii) 15%.
Calendar Year 2004: Commencing at the beginning of the quarter ending March 31,
2004 and continuing until the beginning of the quarter ending March 31, 2005,
Unisphere shall pay to Siemens on the first business day of each calendar
quarter a renewal and support maintenance fee equal to the sum of (w) the
product of (i) the license fees payable in respect of the corresponding calendar
quarter in 2003, (ii) 0.9 and (iii) 15% plus (x) the product of (i) the license
fees payable in respect of the corresponding calendar quarter in 2002, (ii) 0.81
and (iii) 15% plus
<PAGE> 29
- 29 -
(y) the product of (i) the license fees payable in respect of
the corresponding calendar quarter in 2001, (ii) 0.729 and (iii) 15% plus (z)
the license fees payable in respect of the corresponding calendar quarter in
2000, (ii) 0.6561 and (iii) 15%.
Renewal Periods: For any renewal period of this Agreement, the parties agree to
amend this Annex 3 to establish renewal support and maintenance fees for
subsequent periods using the same methodology as for the 2001-2004 years set
forth above.
<PAGE> 30
- 30 -
ANNEX 4 CUSTOMER SUPPORT AND MAINTENANCE
This exhibit describes the support services to be provided by Unisphere and
Siemens for the Licensed Software in connection with the Licensing of the
Licensed Software under the Agreement. Support and maintenance includes
provision of all Updates and New Versions of the Licensed Products.
1. Definitions
In this ANNEX 4 defined terms shall have the meaning set out in the Agreement
and if not defined in the Agreement the following terms shall have the meaning
set out below:
"Annex 4" shall mean this exhibit and all attachments attached hereto or
referencing this ANNEX 4 as such are amended from time to time in accordance
with the provisions hereof.
"Attachment" shall mean a document attached to or referencing this ANNEX 4.
"Business Day" shall mean Monday to Friday excluding statutory holidays in the
location of the office of Siemens as specified in the Agreement.
"Business Hours" shall mean 8:00 A.m. to 5:00 P.m. CET (Central European Time)
on Business Days.
"24x7" shall mean 24 hours each day, 7 days per week, 365 days per year
availability of support services.
"Defect" shall mean a failure of a Licensed Software to function in accordance
with the Documentation for the Licensed Software.
"First Line Support" shall mean those support services provided to an End User
of a Licensed Software as further defined in this ANNEX 4.
"Problem" shall mean a set of circumstances that prevents an End User from using
a Licensed Software in accordance with the Documentation for such Licensed
Software.
"Second Line Support" shall mean those support services provided to the
organization that is performing First Line support as further defined in this
ANNEX 4.
"Support Contact" shall mean a person designated by Unisphere to use the
Services provided by
<PAGE> 31
- 31 -
Siemens in accordance with the provisions of this ANNEX 4.
"Third Line Support" shall mean those support services provided to the
organization that is performing Second Line Support as further defined in
Support Services Schedule. Third Line Support is the product service that
Siemens offers to Unisphere as an OEM-partner.
2. LEVELS OF SUPPORT
2.1. First Line Support
The tasks to be performed by First Line Support include:
a) Receive and respond to requests received from a End User of Licensed
Software.
b) Relay requests to Second Line Support that cannot be satisfied using
support information provided.
c) Install Licensed Software updates at End User's site.
d) Under direction of Second and Third Line Support, provide assistance at
End User's site to obtain diagnostic information and implement
work-around procedures.
e) Under the direction of Second and Third Line Support, alert End User as
to the existence of known Defects and recommended preventative actions.
f) Periodically update End User as to the status of reported Problems,
including those escalated to Second Line Support.
2.2. Second Line Support
The tasks to be performed by Second Line Support include:
a) Receive and respond to requests from First Line Support
b) Diagnose the cause of End User Problems by:
i) verifying that the installed system components (including the
supported Licensed Software) are intended to be compatible with
each other;
ii) verifying that the configuration of each system component (i.e.
hardware, LAN, WAN, licensing information, operating system,
database, etc.) is valid;
iii) verifying that maintenance procedures prescribed have been
performed;
iv) depending on the facilities that are available, recreating
Problems in a simulated system environment;
v) isolating the cause of a Problem to one or more specific system
components.
c) Where possible, resolve user Problems (either directly via an
electronic data link or by directing First Line Support personnel
on-site) by:
<PAGE> 32
- 32 -
i) correcting invalid configuration of system components;
ii) installing prescribed Updates;
iii) implementing prescribed work around procedures;
iv) applying prescribed software patches.
d) Relay requests that cannot be satisfied to Third Line Support (along
with relevant diagnostic information).
e) Periodically update First Line Support as to the status of reported
Problems, including those escalated to Third Line Support.
2.3. Third Line Support/product support
The tasks to be performed by Third Line Support include:
a) Receive and respond to requests from the Second Line support.
b) Recommend work around procedures to resolve user Problems.
c) Provide Patches and work-arounds that temporarily fix Defects.
d) Provide Updates that permanently fix Defects.
e) Provide support information for use by First and Second Line support
personnel responsible for supporting the Licensed Software.
f) Provide training to First and Second Line support personnel responsible
for supporting the Licensed Software.
g) Provide status updates and diagnostic advice on known Defects to First
and Second Line support.
3. Support
3.1. Support. During the Term, Siemens shall provide reasonable Third Line
Support via pager, telephone, or email for aiding Unisphere's Second
Line Support of the Licensed Software. Such support shall be provided
during normal Siemens office hours and is in addition available for
Critical and Major Problems via pager on a 24x7 basis. Such support
shall be provided by designated Siemens and Unisphere support
representatives and backup support representatives. Designated persons
will be updated from time to time by Unisphere upon notification to
Siemens.
3.2. Software Maintenance.
<PAGE> 33
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a) Scope of Coverage. During the Term, Siemens shall use reasonable
efforts to ensure that the Licensed Software operates substantially in
accordance with the documentation accompanying the Licensed Software.
b) Problems.
i) A "Critical Problem" in a Licensed Software is one that
renders the Licensed Software totally unusable, has a severe
business impact or results in a production system going down.
ii) A "Major Problem" in a Licensed Software is one where
significant functionality is affected and/or the software is
not operating substantially in accordance with the
accompanying documentation and a production system is
significantly impacted.
iii) A "Minor Problem" in a Licensed Software is one that has minor
functionality impact and detracts from the quality or
performance of a production system or business operation.
iv) A "Limited Problem" in a Licensed Software is one that has
minimal functionality impact and is not critical to a
production system or business operation, but is not in
accordance with the documentation accompanying the Licensed
Software.
c) Notifications and Trouble Reports. Unisphere shall use reasonable
efforts to supply Siemens with verifiable and reproducible evidence of
Problems accompanied by a "Trouble Report." The "Trouble Report" shall
include the information set forth in Attachment A. For Critical and
Major Problems, Siemens shall designate senior engineers as Second Line
and Third Line Support emergency representatives for Unisphere. Siemens
agrees to provide Unisphere with 24-hour pager access to the Third Line
Support emergency representative.
d) Response and Resolution Times. Upon receipt of a Trouble Report via
email, fax, or page, Siemens shall respond by telephone or email to
acknowledge receipt of the Trouble Report within fifteen (15) minutes
for Critical, one (1) hour for Major Problems, one (1) business day for
Minor Problems, and one (1) business days for Limited Problems.
<PAGE> 34
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i) Critical Problems. Siemens shall, with the cooperation of
Unisphere, immediately commence diagnosis of the Problem.
Siemens shall work diligently to provide a temporary fix or
workaround to the Critical Problem as soon as possible but not
longer than twenty-four (24) hours after notification. Siemens
shall thereafter provide a permanent correction as soon as
commercially reasonable but not later than 7 days after
notification. Siemens agrees to resolve 95% of Critical
Problems according to the above specified response and
resolution times. Siemens and Unisphere agree to report all
exceptions to the above specified response and resolution
times to a Director level manager. For problems exceeding
above specified response and resolution times by 100%, Siemens
and Unisphere agree to report all exceptions to (Partner's
CEO) and Unisphere's VP of Network and Service Management.
ii) Major Problems. Siemens shall, with the cooperation of
Unisphere, immediately commence a diagnosis of the Problem.
Siemens shall provide a temporary fix or workaround to the
Problem as soon as possible but not later than forty-eight
(48) hours after notification. Siemens shall thereafter
provide a permanent correction as soon as commercially
reasonable but not later than fourteen (14) days after
notification. Siemens agrees to resolve 90% of Major Problems
according to the above specified response and resolution
times. Siemens and Unisphere agree to report all exceptions to
the above specified response and resolution times to a
Director level executive. For problems exceeding above
specified response and resolution times by 100%, Siemens and
Unisphere agree to report all exceptions to (Partner's CEO)
and Unisphere's VP of Network and Service Management.
iii) Minor Problems. Siemens shall with the cooperation of
Unisphere, commence a diagnosis of the Problem within one (1)
business day after receiving the Trouble Report. Partner shall
provide a temporary fix or workaround to the Problem as soon
as possible but not later than seven (7) days after
notification. Siemens shall thereafter provide a permanent
correction as soon as commercially reasonable but not later
than 30 days after notification. Siemens agrees to resolve 85%
of Minor Problems according to the above specified response
and resolution times.
iv) Limited Problems. Siemens shall, with the cooperation of
Unisphere, commence a diagnosis of the Problem within ten (10)
business days after receiving the Trouble Report.
<PAGE> 35
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Siemens will not be required to provide a temporary fix or
work-around but shall provide a permanent correction as part
of a subsequent Update to the Licensed Software. Siemens
agrees to resolve 80% of Limited Problems according to the
above specified response and resolution times.
3.3. Version Level Support. As part of the maintenance fees paid to Siemens,
Siemens agrees to provide Unisphere for its End Users with the latest
Updates and Versions for the Licensed Software. Siemens agrees to
support a previous Release, Update, Upgrade, or Version for a period of
twelve (12) months following general availability of a new Release,
Update, Upgrade, or Version of the Licensed Product.
3.4. WWW Access to Support Material. Siemens will use commercially
reasonable efforts to provide web-based access to support tools and
information including, but not limited to, software patches, generally
available software for Licensed Software, documentation for Licensed
Software, knowledge database with frequently asked questions, and an
automated trouble-ticket system.
3.5. Reporting. Siemens will provide a quarterly trouble incident report to
Unisphere in a mutually agreeable format which will track and report
such metrics as # of trouble reports, average response time, mean time
to resolution, and any exceptions which required escalation. The report
should also allow sorting incident category and other different
criteria as mutually agreed by both parties.
<PAGE> 36
- 36 -
ATTACHMENT A
Trouble Report
- Licensee's Support Contact name;
- Licensee's Support Contact telephone number;
- Problem title;
- Problem reference number;
- Date and time Trouble Report submitted by Licensee;
- Description of Problem;
- Summary of how Problem impacts Licensee's use of Licensed Software;
- Classification of Problem (Critical, Major, Minor or Limited);
- Instructions on how to reproduce Problem;
- Description of the system environment in which the Licensed Software
is installed (hardware and software, including load identifiers); and
- Supplementary information (when available) that helps explain the
problem.
