Exhibit 10.4
UNISYS WORLDWIDE COMMUNICATIONS / INFOACTIV
SOFTWARE LICENSE AGREEMENT
<PAGE>
INDEX
ARTICLE 1 - DEFINITIONS 4
ARTICLE 2 - GRANT OF LICENSE 6
ARTICLE 3 - TERM 7
ARTICLE 4 - PAYMENT/INVOICES 8
ARTICLE 5 - DELIVERABLES/QUALITY ASSURANCE/ACCEPTANCE 9
ARTICLE 6 -UPDATES 10
ARTICLE 7 - TECHNICAL TRAINING 11
ARTICLE 8 - MARKETING SUPPORT 12
ARTICLE 9 - MAINTENANCE/TECHNICAL SUPPORT 12
ARTICLE 10 - NOTICES/ADMINISTRATION 14
ARTICLE 11 - CANCELLATION/TERMINATION 15
ARTICLE 12 - TAXES 16
ARTICLE 13 - CONFIDENTIAL INFORMATION AND DISCLOSURE 16
ARTICLE 14 - WARRANTY 17
ARTICLE 15 - DISCLAIMER 18
ARTICLE 16 - LIMITATION OF LIABILITY 19
ARTICLE 17 - INFRINGEMENT/INDEMNITY 19
ARTICLE 18 - TRADEMARKS AND TRADE NAMES 19
ARTICLE 19 - FORCE MAJEURE 20
ARTICLE 20 - ASSIGNMENT AND BENEFITS 20
ARTICLE 21 - MOST FAVORED CUSTOMER 20
ARTICLE 22 - GENERAL PROVISIONS 20
ARTICLE 23 - INSURANCE 22
ARTICLE 24 - ESCROW 23
ARTICLE 25 - ADDENDA/APPENDICES/ATTACHMENTS 25
ARTICLE 26 - SURVIVAL OF PROVISIONS 25
ARTICLE 27 - ENTIRE AGREEMENT 25
<PAGE>
EXHIBIT 1 USER COMMUNICATION FORM (UCF) - (SIMULATION) 26
ADDENDUM A CATEGORIES OF CRYPTOGRAPHIC ALGORITHMS 28
ADDENDUM B UNISYS TRAVEL POLICY . 29
ADDENDUM C TECHNOLOGY ESCROW AGREEMENT 30
APPENDIX 1 SAMPLE APPENDIX ..................................... 39
<PAGE>
UNISYS WORLDWIDE COMMUNICATIONS / INFOACTIVE
SOFTWARE LICENSE AGREEMENT
Agreement No. _________
This Agreement is entered into by and between Unisys Corporation (hereinafter
"LICENSEE"), a Delaware corporation, with offices at
___________________________, InfoActiv, Inc. (hereinafter "LICENSOR"), a
Pennsylvania corporation, with offices at 999 West Chester Pike # 202, West
Chester, Pennsylvania, 19382.
RECITALS
LICENSOR owns certain computer software programs and the documentation related
thereto.
LICENSEE desires to obtain certain rights, as hereinafter described, in said
programs and their related documentation.
LICENSOR is willing to grant such rights in said programs and their related
documentation to LICENSEE.
In consideration of the mutual covenants herein contained and intending to be
legally bound by the provisions of this Agreement, the parties agree as follows:
ARTICLE 1 - DEFINITIONS
Words, as employed in this Agreement, shall have their normally accepted
meanings. The terms "herein" and "hereof', unless specifically limited, shall
have reference to the entire Agreement. The word "shall" is mandatory, the word
"may" is permissive, the word "or" is not exclusive, the words "includes" and
"including" are not limiting and the singular includes the plural and vice
versa. The following terms shall have the described meaning:
A. "AFFILIATE" shall mean a corporation, company or other entity more than
ten percent (10%) but less than thirty percent (30%) of whose control or
outstanding voting shares or securities are, now or hereafter, owned or
controlled, directly or indirectly, by LICENSEE.
B. "CORRECTION" shall mean a change made in the PACKAGE or DIAGNOSTICS to
correct errors or defects in the PACKAGE or DIAGNOSTICS or to make the
PACKAGE conform to LICENSOR'S then current DOCUMENTATION.
C. "CRYPTOGRAPHIC ALGORITHM" shall mean that portion (if any) of the PACKAGE
or DIAGNOSTICS which transforms data to conceal or reveal information
content and which uses at least one confidential parameter. Typical
applications of a CRYPTOGRAPHIC ALGORITHM are Data Confidentiality, Data
Authentication or Data Integrity, Access Control, Non-Repudiation, and
Proprietary Software Protection as such terms are defined in Addendum A.
D. "DIAGNOSTICS" shall mean the SOURCE CODE and OBJECT CODE forms of one or
more software programs, whose primary function is to perform or assist in
performing diagnostic function on all or any part of the PACKAGE. The
diagnostic programs or associated software are listed in section A of the
appropriate appendix and shall include all CORRECTIONS, UPDATES, UPGRADES,
IMPROVEMENTS and ENHANCEMENTS to any portion thereof, and all translations
into foreign languages and all localizations and nationalizations for
foreign countries.
E. "DOCUMENTATION" shall mean any portion of those visually or machine
readable materials (in English all foreign languages, and all
localizations and nationalizations for foreign countries, available from
LICENSOR) developed by or for LICENSOR or licensed to LICENSOR for use in
connection with the PACKAGE and DIAGNOSTICS and all revisions thereto made
by or for LICENSOR or licensed to LICENSOR including but not limited to,
new documents, corrected documents and revisions to properly reflect
changes made to the PACKAGE and DIAGNOSTICS. DOCUMENTATION shall
accurately describe the features, functions, and use of the PACKAGE and
DIAGNOSTICS. A description of such materials in existence as of the
Effective Date is set forth in section A
<PAGE>
of the appropriate appendix.
F. "END USER" shall mean the customers of LICENSEE or LICENSEE'S
SUBSIDIARIES, AFFILIATES or THIRD PARTIES who are granted a lease, license
or sublicense which includes the right to use the DIAGNOSTICS for the
maintenance or the PACKAGE: for productive processing of data as opposed
to use for demonstration, evaluation or other nonproductive purposes.
G. "ENHANCEMENT" shall mean a new function or feature for any portion of the
PACKAGE or DIAGNOSTICS which provides a new capability which the previous
releases or versions of the PACKAGE or DIAGNOSTICS did not have and which
may be incorporated into the PACKAGE or DIAGNOSTICS by modification to the
then existing programs or by development o new programs.
H. "IMPROVEMENT' shall mean m addition or change to any portion of the
PACKAGE or DIAGNOSTICS that is intended to or that does improve the
performance of the PACKAGE or DIAGNOSTICS or any portion thereof or that
is a replacement for any such portion).
I. "OBJECT CODE" shall mean the machine executable form of the PACKAGE or
DIAGNOSTICS that results from the compilation or assembly of SOURCE CODE.
J. "PACKAGE" shall mean the SOURCE CODE and OBJECT CODE forms of one or more
software programs that operate with and interface to all components
necessary to run the PACKAGE and perform in accordance with the
DOCUMENTATION. Said PACKAGE includes the programs listed in each Appendix
in its Section A, and ly supporting programs necessary for the proper
functioning thereof. Said PACKAGE shall include all CORRECTIONS, UPDATES,
UPGRADES, IMPROVEMENTS and ENHANCEMENTS to any portion thereof made by or
for LICENSOR, all translations into foreign languages and all
localizations and nationalization for foreign countries made by or for
LICENSOR to any portion of the PACKAGE from time to time.
K. "SOURCE CODE" shall mean the symbolic programming languages employed by
LICENSOR to develop the PACKAGE and DIAGNOSTICS and which when compiled,
interpreted and/or assembled is transformed into an OBJECT CODE form of
the PACKAGE and DIAGNOSTICS.
L. "SUBCONTRACTOR" shall mean an individual or entity with whom LICENSEE, a
SUBSIDIARY, an AFFILIATE or a THIRD PARTY has a contract to perform
specified work utilizing the PACKAGE, DIAGNOSTICS, or DOCUMENTATION;
provided, however, that such contract shall be consistent with the rights
and licenses granted hereunder and shall be subject to the same
limitations as are contained in this Agreement for the protection of
LICENSOR'S proprietary information.
M. "SUBSIDIARY" shall mean a corporation, company or other entity thirty
percent (30%) or more of whose control or outstanding voting shares or
securities are, now or hereafter, owned or controlled, directly or
indirectly, by LICENSEE.
N. "THIRD PARTY" shall mean dealers, value added resellers, distributors,
manufacturer's representatives and other such entities engaged in doing
business with LICENSEE, SUBSIDIARIES, AFFILIATES and other THIRD PARTIES
and who acquire products from them for the purpose of ultimate rental,
lease, sublicense or resale to END USERS.
O. "UPDATE" shall mean a release of the PACKAGE or DIAGNOSTICS subsequent to
the initial delivery in which the LICENSOR has incorporated (1)
accumulated CORRECTIONS, (2) UPGRADES, (3) IMPROVEMENTS, or (4)
ENHANCEMENTS, together with new or revised DOCUMENTATION which properly
describes the updated PACKAGE or DIAGNOSTICS.
P. "UPGRADE" shall mean a change made in the PACKAGE or DIAGNOSTICS to permit
the PACKAGE or DIAGNOSTICS to be used and properly operate with
modifications made to the operating system, including new releases and
levels, referenced in Paragraph J, above.
Q. " UNISYS ENHANCEMENT" is an ENHANCEMENT developed by or for Unisys, or for
the END USER at Unisys
<PAGE>
expense.
R. "ROYALTY CAP" shall mean the highest accumulated amount which LICENSEE
shall be obligated to pay to LICENSOR in US dollars for license fee
payments for license fee bearing copies of the PACKAGE sublicensed to END
USER. Details shall be specified in Section A of the appropriate Appendix.
S. "YEARS CAP" shall mean the whole or partial number of years during which
LICENSEE shall pay to LICENSOR license fee payments for license fee
bearing copies of the PACKAGE sublicensed to an END USER, after which time
LICENSEE shall not have any obligation to pay license fees to LICENSOR.
Upon receipt of the initial license fee payment, LICENSOR shall calculate
the YEARS CAP date by multiplying the YEARS CAP by 365 and adding it to
the date of the initial license fee payment, and LICENSOR shall promptly
notify LICENSEE of that date Details shall be specified in Section A of
the appropriate Appendix.
ARTICLE 2 - GRANT OF LICENSE
Except as may otherwise be contained within the Appendices or Schedules,
LICENSOR hereby grants to LICENSEE and LICENSEE hereby accepts from LICENSOR
under all of LICENSOR's USA and foreign patents and copyrights, as well as any
know-how or trade secrets related to the PACKAGE, DIAGNOSTICS, and
DOCUMENTATION, an unrestricted, worldwide right and license to:
1. use, copy, reproduce, distribute, modify, maintain, localize, nationalize,
convert, port, and translate the PACKAGE, DIAGNOSTICS, and DOCUMENTATION;
2. have the PACKAGE, DIAGNOSTICS, and DOCUMENTATION used, copied, reproduced,
merged, modified, maintained, localized, nationalized, converted, ported,
or translated by a SUBCONTRACTOR;
3. merge the PACKAGE and DIAGNOSTICS with other computer programs;
4. merge the DOCUMENTATION with other written materials;
5. advertise the availability of the PACKAGE and DIAGNOSTICS or any portion
thereof;
6. prepare derivative works based upon the PACKAGE, DIAGNOSTICS, and
DOCUMENTATION or have such works prepared by a SUBCONTRACTOR;
7. grant sublicenses, (which may take the form of leases) to END USERS to
use, copy and modify, or have copied and modified, the PACKAGE and
DIAGNOSTICS upon such terms and conditions as shall be agreed to between
LICENSEE and END USERS; provided, however, any modifications by or for END
USER which include the use of any proprietary information of LICENSOR
shall be subject to the same limitations as are. contained in. this
Agreement for the protection of LICENSOR'S proprietary information; and
8. grant sublicenses to SUBSIDIARIES, AFFILIATES and THIRD PARTIES containing
the same rights as are granted to LICENSEE in Subparagraphs 1 through 7,
above. This Subparagraph shall be construed as authorizing LICENSEE to
permit cascaded sublicensing such that, for example, LICENSEE may
sublicene a SUBSIDIARY which shall have the right to sublicense a THIRD
Party such as a distributor, which shall have the right to sublicense
another THIRD PARTY, such as a dealer, which shall have the right to
sublicense an END USER.
B. The foregoing rights and licenses shall be exclusive with respect to
computers marketed under LICENSEE'S or a SUBSIDIARY'S trademarks and
nonexclusive as to other computer systems, however, those rights and
licenses for DIAGNOSTICS which support only LICENSEE'S or a SUBSIDIARY'S
computers or computer systems or LICENSEE'S or a SUBSIDIARY'S operating
system software shall be exclusive, with LICENSEE retaining the foregoing
rights and licenses.
C. It is understood and agreed that all right, title and interest to all
changes and additions (i.e., UNISYS ENHANCEMENTS), made by or for the
benefit of LICENSEE, its SUBSIDIAIRIES, AFFILIATES, THIRD PARTIES or
SUBCONTRACTORS in and to the PACKAGE and DOCUMENTATION and all inventions,
copyrights, trade
<PAGE>
secrets and other intellectual property rights therein shall vest in the
entity making such change or addition, or in the case of a SUBCONTRACTOR,
in the party contracting and making payment for such change or addition.
ARTICLE 3 - TERM
The term of this Agreement shall commence on the Effective Date and shall
continue until terminated or canceled as provided herein.
ARTICLE 4 - PAYMENT/INVOICES
A. LICENSEE shall make license fee payments to LICENSOR for each license fee
bearing copy of the PACKAGE sublicensed to an END USER. Such payments are
subject to reconciliation as described in Paragraph B, below. The specific
license fee due LICENSOR for the PACKAGE shall be as set forth in Section
B of each Appendix.
B. LICENSEE shall provide LICENSOR with quarterly reports showing the
quantity of license fee bearing PACKAGES sublicensed and billed hereunder
commencing after the initial license fee bearing sublicense has been
granted and billing made. Said reports and appropriate payment shall be
provided to LICENSOR for each calendar quarter ending March 31, June 30,
September 30, December 31 during the term hereof and shall be forwarded
not later than forty-five (45) days after the end of each quarter. Said
quantities and related license fee payments shall be subject to subsequent
revision, correction and reconciliation in later quarters based on: (1)
non-acceptance, revocation of acceptance, or rejection of the PACKAGE or
any component thereof by an END USER; in which event LICENSEE shall
receive a credit or refund, at the option of LICENSEE, from LICENSOR in
the amount of the applicable license fee paid by LICENSEE for said
PACKAGE; or (2) adjustments and/or discounts applied in accordance with
Paragraphs D, E and F below.
C. Except as may otherwise be described in Appendices hereto, no license fee
shall be due LICENSOR in connection with the use of the PACKAGE,
DIAGNOSTICS, and DOCUMENTATION by LICENSEE or by SUBSIDIARIES, AFFILIATES
or THIRD PARTIES for any purpose or any of their SUBCONTRACTORS for
performing work for any of them, or by prospective END USERS for test,
evaluation, or non-production purposes.
D. LICENSOR agrees upon LICENSEE'S request, to reduce the license fee
payments due from LICENSEE for the PACKAGE to a mutually agreeable amount
if competitive products in the marketplace force LICENSEE, SUBSIDIARIES,
AFFILIATES or THIRD PARTIES to reduce fees charged to END USERS for the
PACKAGE. If LICENSOR reduces the net license fee it charges its customers,
LICENSOR shall so notify LICENSEE and the license fees payable by LICENSEE
hereunder shall be decreased by the same percentage of such reduction
concurrent with the effectivity of such reduction.
E. When requested by LICENSEE, LICENSOR agrees to review the license fees
payable by LICENSEE when mutual benefit may be achieved in response to
special marketing situations.
F. Notwithstanding the provisions of Paragraph A, above, the license fees
payable by LICENSEE, under Section B of each Appendix, shall be reduced by
the application of LICENSEE'S discount schedules that shall be
incorporated and made a part of Section B for each Appendix as may be
offered by LICENSOR (e.g., multiple copies, educational, etc.) established
for LICENSEE'S own products with which the PACKAGE is offered.
G. The license granted in Article 2 shall become perpetual, irrevocable,
royalty-free and fully paid-up upon delivery to LICENSOR of a written
notice to that effect, for each PACKAGE when either the, (1) the Appendix
in question is in effect for its YEARS CAP from the Appendix Effective
Date, or (2) the license fee payments made by LI1CENSEE to LICENSOR reach
the total cumulative amount of the ROYALTY CAP.
H. LICENSEE may, at any time and at its sole option, cause the license
granted in Article 2 to become a perpetual, irrevocable, royalty-free,
fully paid-up license upon payment to LICENSOR of a lump sum amount equal
to the difference between the total cumulative amount of license fee
payments previously made to LICENSOR, under
<PAGE>
this Agreement and the total cumulative amount set forth in Paragraph G,
above.
I. Invoices for reimbursement of permitted travel and living expenses and for
authorized services performed by LICENSOR shall be submitted at the end of
each month that such services were rendered or such expenses incurred.
Such invoices shall be paid within forty-five (45) days after receipt and
approval by LICENSEE.
J. In the event that LICENSOR sells to a Unisys END USER, product or products
as noted in any Appendices to this Agreement, LICENSOR shall pay to
LICENSEE a the fees equal to the license fee Unisys would have paid to the
LICENSOR, if LICENSEE would have had to purchase the license from
LICENSOR.
ARTICLE 5 - DELIVERABLES/QUALITY ASSURANCE/ACCEPTANCE
A. Initial Deliverv
The parties shall further agree on an Appendix Delivery Date which shall
be incorporated and made a part hereof. On the Appendix Delivery Date for
each Appendix, LICENSOR shall deliver, in reproducible form, the current
copy of the items listed in Section A of its associated Appendix
B. Subsequent Deliveries
Delivery of UPDATES shall be in the same form as the initial delivery of
the item being updated unless otherwise mutually agreed.
C. General Requirements
The OBJECT CODE and SOURCE CODE versions of the PACKAGE and DIAGNOSTICS
shall be delivered on separate media and on the media as specified in
Section A of its associated Appendix. All items to be delivered hereunder
shall be F.O.B. destination and LICENSOR shall make shipment in accordance
with LICENSEE'S instructions.
D. Quality Assurance
LICENSOR shall document a quality plan and perform quality assurance in
accordance with Section C of its associated Appendix. The quality plan
shall represent LICENSOR'S best efforts to conform to the requirements of
ISO 9001, as appropriate, through December 31, 1999; and after December
31, 1999, for so long as this contract shall remain in effect, the quality
plan shall conform to the requirements of ISO 9001.
E. Acceptance
All items to be delivered to LICENSEE by LICENSOR under this Agreement
shall be subject to LICENSEE'S evaluation, testing, and acceptance for
conformance to applicable specifications and descriptions. In the event of
nonconformance, LICENSOR shall, in accordance with the provisions of this
Agreement, make all necessary modifications required to achieve such
conformance and shall deliver in a timely manner to LICENSEE the modified
items for LICENSEE'S further evaluation, testing and acceptance.
F. Late Delivery
LICENSOR shall take steps to ensure the OBJECT CODE and SOURCE CODE
versions of the PACKAGE and DIAGNOSTICS shall be delivered as specified in
its associated Appendix on its Appendix Delivery Date. Each Appendix
Delivery Date may be modified in writing in accordance with the provisions
of this Agreement. In the event that LICENSOR fails to deliver OBJECT CODE
and SOURCE CODE versions of the PACKAGE and DIAGNOSTICS as specified in
its associated Appendix on its Appendix Delivery Date, LICENSEE shall
notify LICENSOR of LICENSOR's breach under this article and LICENSEE shall
have fifteen (15) days to correct the breach. Failure of LICENSOR to
remedy a Late Delivery breach under this Article shall entitle LICENSEE to
a cancellation of the Appendix under which the Late Delivery arises.
Further, LICENSOR shall issue an irrevocable letter of credit, payable to
LICENSEE upon demand, in the event that LICENSEE incurs damages due to the
<PAGE>
failure of LICENSOR to deliver OBJECT CODE and/or SOURCE CODE as defined
in the associated Appendix.
ARTICLE 6 - UPDATES
A. LICENSOR shall promptly inform LICENSEE and shall keep LICENSEE advised of
the status of all IMPROVEMENTS, ENHANCEMENTS, CORRECTIONS and UPGRADES
being developed by or for LICENSOR for the PACKAGE, DIAGNOSTICS, and the
DOCUMENTATION. When any such IMPROVEMENTS, ENHANCEMENTS, CORRECTIONS or
UPGRADES have been completed by LICENSOR, LICENSOR shall provide to
LICENSEE two (2) copies of the PACKAGE and DIAGNOSTICS incorporating such
IMPROVEMENTS, ENHANCEMENTS, CORRECTIONS or UPGRADES, and two (2) copies of
the DOCUMENTATION properly updated to reflect such IMPROVEMENTS,
ENHANCEMENTS, CORRECTIONS or UPGRADES.
B. LICENSOR shall deliver an UPDATE containing an accumulation of CORRECTIONS
to LICENSEE at the same time LICENSOR releases such UPDATE for its own use
or for use by its customers; provided, however, that such UPDATE shall be
delivered to LICENSEE not less frequently than every six (6) months,
commencing the sixth (6th) month after the Effective Date, and in no event
later than the end of the sixth (6th) month after the Effective Date,
unless the parties otherwise mutually agree in writing.
C. If a LICENSEE marketed operating system is specified in Appendices as
covered in Article 1, Paragraph J, LICENSEE shall advise LICENSOR of
changes to such operating system software and provide documentation
pertaining to such changes necessary for LICENSOR to UPGRADE the PACKAGE
and DIAGNOSTICS. Within ninety (90) days of receiving such advice,
LICENSOR shall deliver to LICENSEE an UPGRADE of the PACKAGE and
DIAGNOSTICS which accommodates said changes. Such UPGRADE shall include
appropriately updated DOCUMENTATION.
D. If any portion of the PACKAGE, DIAGNOSTICS, or DOCUMENTATION is
translated, localized or nationalized by or for LICENSOR or any of its
agents, LICENSOR shall promptly so notify LICENSEE and, if requested by
LICENSEE, LICENSOR shall, within fifteen (15) days of such request,
deliver two (2) copies of such PACKAGE, DIAGNOSTICS or DOCUMENTATION to
LICENSEE.
E. LICENSEE shall provide to LICENSOR remote, telephonic access to a hardware
and software test environment facility which shall be described in detail
in Section D of an associated Appendix. LICENSEE shall in its sole
discretion provide reasonable access time to designated test environment;
reasonable technical and design documentation, appropriate pre-release
information about LICENSEE's product upgrades or new announcements; access
to telephony environments, processor usage; disk space; etc.
ARTICLE 7 - TECHNICAL TRAINING
A. Except as may otherwise be negotiated by the parties and incorporated in
Appendices to this agreement, LICENSOR shall, as requested by LICENSEE,
furnish training to not more than twenty (20) LICENSEE personnel in the
installation, maintenance, operation, modification and enhancement of the
PACKAGE and DIAGNOSTICS; such training shall include a sufficiently
detailed analysis of the design, structure and architecture of the PACKAGE
and DIAGNOSTICS that such personnel can, in turn, adequately train other
LICENSEE personnel to competently perform such tasks. Each training course
shall be of sufficient length to accomplish the competency level described
above. LICENSOR shall provide one (1) training course with a maximum of
twenty (20) LICENSEE personnel per course. Course materials shall be
provided at no charge and may be retained by the trainees. Thirty (30)
days prior to the Appendix Delivery Date, LICENSOR shall deliver two (2)
reproducible copies of all course materials, e.g., instructor's guide,
course outline, and other documentation and items utilized for such
courses. LICENSEE shall have the same rights and licenses regarding such
course materials, and those furnished under Paragraph B below, as it has
for DOCUMENTATION. Such training shall be furnished in accordance with the
schedule appearing in each Appendix
B. B. Except as may otherwise be negotiated by the parties and incorporated
in Appendices to this agreement, if a major UPDATE (i.e., UPGRADES and
those changes for which LICENSOR offers "differential" training to its own
customers) is made by LICENSOR, LICENSOR shall, as requested by LICENSEE,
provide one (1) training course in accordance with the requirements set
forth in Paragraph A, above, for a maximum of twenty (20) LICENSEE
<PAGE>
personnel. LICENSOR shall, to the same extent as provided for in Paragraph
A, above, furnish LICENSEE's personnel with necessary course materials and
shall furnish reproducible copies of such course material to LICENSEE at
least thirty (30) days prior to the commencement of such course. Such
course shall be furnished upon delivery of such UPDATE to LICENSEE,
pursuant to Article 6, at mutually agreeable times.
C. The training to be performed under Paragraphs A and B, above, shall be
provided at LICENSEE'S designated facility unless LICENSEE elects to have
the training provided at LICENSOR'S facility in West Chester, PA.
1 . If the training is to be performed at LICENSOR'S facility, (a)
LICENSOR shall make available, for the use of LICENSEE'S personnel,
equipment, facilities and other items required for such training,
and (b) LICENSEE shall bear the cost of travel and living expenses
of its personnel.
2. If the training is to be performed at other than LICENSOR'S
facility, LICENSEE shall (a) reimburse LICENSOR, in accordance with
Addendum B, for travel and living expenses incurred by LICENSOR'S
personnel to the extent that such expenses arise solely and directly
from the training being performed at other than a LICENSOR facility,
and (b) make available adequate facilities and equipment reasonably
required for such training.
ARTICLE 8 - MARKETING SUPPORT
A. Except as may otherwise be negotiated by the parties and incorporated in
Appendices to this agreement, LICENSOR shall, upon mutual agreement as to
time and place, train a maximum of twenty (20) LICENSEE personnel in the
marketing of the PACKAGE. LICENSOR shall provide two (2) training classes
with a maximum of ten (10) employees per class. Such training shall be at
locations and on specific dates to be mutually agreed upon. Each party
shall bear its own costs relative to such training.
B. At LICENSEE'S reasonable request, and given reasonable advance notice,
LICENSOR shall demonstrate the operation of the PACKAGE and DIAGNOSTICS to
prospective customers of LICENSEE and otherwise reasonably assist LICENSEE
in its marketing effort during visits by such prospective customers. The
demonstration may include the use of LICENSEE furnished marketing
materials in addition to any of LICENSOR'S own marketing materials.
C. At LICENSEE'S reasonable request, LICENSOR shall participate in trade
shows, user conferences and other events at which the PACKAGE is to be
exhibited, demonstrated, discussed or otherwise involved.
D. At LICENSEE'S reasonable request, LICENSOR shall provide pre-sales
support, including seminars, courses, presentations and consultations
relative to LICENSEE'S marketing activity.
E. If any of the support rendered pursuant to Paragraphs B, C, and D, above,
is furnished at other than a LICENSOR facility, LICENSEE shall reimburse
LICENSOR, in accordance with Addendum B, for travel and living expenses
incurred by LICENSOR'S personnel to the extent such expenses arise solely
and directly from such support being performed at other than a LICENSOR
facility.
F. Upon mutual agreement of the parties, the branding, i.e. name of the
Product, shall be defined in each appendix, for the software user
interface, and marketing collateral.
ARTICLE 9 - MAINTENANCE/TECHNICAL SUPPORT
A. LICENSOR shall provide telephone consulting services to LICENSEE'S
designated personnel to assist such personnel in resolving problems,
obtaining clarification relative to the PACKAGE, DIAGNOSTICS, or
DOCUMENTATION (including use of individual features) and providing
assistance regarding suspected defects or errors in the PACKAGE,
DIAGNOSTICS, or DOCUMENTATION. Said LICENSOR services shall be provided
seven (7) days per week, twenty-four (24) hours per day and LICENSOR shall
furnish the names and telephone numbers of its personnel for both normal
working hours and other times (e.g., holidays, weekends, etc.).
B. Upon LICENSEE'S request, LICENSOR shall furnish qualified personnel for
on-site assistance to LICENSEE,
<PAGE>
SUBSIDIARIES, AFFILIATES, THIRD PARTIES, SUBCONTRACTORS and END USERS to
resolve problems and assist in customization. In such event, LICENSEE
shall pay LICENSOR at the rates set forth in Section B of each Appendix
for the time of such personnel and reimburse LICENSOR, in accordance with
Addendum B, for travel and living expenses of such personnel incurred in
rendering such assistance; provided, however, that LICENSOR shall not be
entitled to payment for the time of its personnel if such assistance to
resolve problems is required due to a significant defect in the PACKAGE,
DIAGNOSTICS, DOCUMENTATION or LICENSOR'S training and such defect cannot
otherwise be reasonably resolved in a timely manner.
C. LICENSOR agrees to diligently work for the prompt resolution of defects
and errors in the PACKAGE and DIAGNOSTICS or correction of errors or
inconsistencies in the DOCUMENTATION. LICENSOR agrees to respond to
LICENSEE as required by LICENSEE'S "User Communication Form" (UCF),
Exhibit 1 hereof, as revised or replaced by LICENSEE from time to time.
Notwithstanding the foregoing, in case of a system-down condition (i.e.
Priority Code A, Emergency, as defined below) attributable to LICENSOR,
LICENSEE may utilize and designate other means of communication for both
the reporting of errors and the correction thereof LICENSOR shall respond
to and complete correction of errors, defects and malfunctions in
accordance with the following schedule:
ERROR PRIORITY (1) RESPONSE (2) CLOSURE (3)
(Calendar Days) (Calendar Days)
Emergency (A) 24 hours 5 days
Critical (B) 2 days 20 days
Non-Critical (C) 5 days 30 days
Informational 30 days Next UPDATE
(1) Priority A - Catastrophic system or module failures
that do not have viable detour or workaround
available.
B - Problems that have been substantiated as
a serious inconvenience to users, this
includes any Priority A for which a viable
detour or workaround is available.
C - All other problems which the user can
easily avoid or detour for which there is no
urgency for a resolution.
(2) Response: Response consists of providing, as appropriate, one or
more of the following to the UCF originator: a workaround/detour, an
existing CORRECTION, a new CORRECTION against reported product level
only, an available release, a release commitment for Priority B and
C, notification of a non-problem.
(3) Closure: Closure consists of providing a final CORRECTION of the
problem to the UCF originator including UPDATES of the PACKAGE and
DIAGNOSTICS, and revised or new DOCUMENTATION as necessary.
In the event LICENSOR does not furnish corrections of Priority A or B errors
within the applicable times set forth above, upon LICENSEE'S request, shall
furnish on-site maintenance support personnel, at the designated site, who shall
remain at the site and provide support until the problem is corrected. In the
event that ultimate responsibility for the error is not due to an error, defect,
malfunction, or breach of warranty regarding the PACKAGE, DIAGNOSTICS, or
DOCUMENTATION, LICENSEE shall pay LICENSOR at the rates set forth in Section B
of each Appendix for time spent at the site and reimburse LICENSOR, in
accordance with Addendum B, for travel and living expenses incurred by said
personnel.
D. LICENSOR shall furnish the maintenance and technical support described in
Paragraphs A, B, and C, above, for the current release level of the
PACKAGE and DIAGNOSTICS and for all supported release levels thereof in
each Appendix.
ARTICLE 10 - NOTICES/ADMINISTRATION
<PAGE>
All notices shall be in writing and shall be sent by certified mail, return
receipt requested, or by wire communications (e.g., telex, twx, or facsimile),
to the respective Contract Administrator, at the address noted below, or as the
same may be changed from time to time by notice similarly given:
A. For LICENSEE
1. General administration and liaison shall be performed by -Office of
General Counsel, referred to herein as "LICENSEE'S Contract
Administrator"), Unisys Way, Blue Bell, PA 19424, with a copy to
Global Procurement Dept.
2. Technical liaison shall be performed by ______________ (referred to
herein as "LICENSEE'S Technical Administrator"), (Address), or
his/her designee or successor.
3. Marketing liaison shall be performed by _____________(referred to
herein as "LICENSEE'S Marketing Administrator"), (Address) or
his/her designee or successor.
B. For LICENSOR
1. General administration and liaison shall be performed by Kasim Mun
(referred to herein as "LICENSOR'S Contract Administrator"), 999
West Chester Pike # 202, West Chester, PA 19382, or his/her designee
or successor.
2. Technical liaison shall be performed by Martin Le Brun (referred to
herein as "LICENSOR'S Technical Administrator"), 999 West Chester
Pike # 202, West Chester, PA 19382, or his/her designee or
successor.
3. Marketing liaison shall be performed by Beth Mahoney (referred to
herein as "LICENSOR'S Marketing Administrator"), 202 Union Wharf,
Boston, MA 02109, or his/her designee or successor.
C. The Technical and Marketing Administrators may, as applicable to their
respective function, clarify, explain, provide further details, handle
necessary technical and marketing matters, implement technical and
marketing aspects, and develop administrative procedures, but shall have
no authority to affect or change any of the terms and conditions of this
Agreement. The exercise of LICENSEE'S rights of termination or
cancellation and the exercise of other general rights of LICENSEE are
reserved to LICENSEE's Contract Administrator. LICENSOR shall furnish
on-site maintenance support personnel, at the designated site, who shall
remain at the site and provide support until the problem is corrected. In
the event that ultimate responsibility for the error is not due to an
error, defect, malfunction, or breach of warranty regarding the PACKAGE,
DIAGNOSTICS, or DOCUMENTATION, LICENSEE shall pay LICENSOR at the rates
set forth in Section B of each Appendix for time spent at the site and
reimburse LICENSOR, in accordance with Addendum B, for travel and living
expenses incurred by said personnel.
D. LICENSOR shall furnish the maintenance and technical support described in
Paragraphs A, B, and C, above, for the current release level of the
PACKAGE and DIAGNOSTICS and for all supported release levels thereof in
each Appendix.
ARTICLE 10 - NOTICES/ADMINISTRATION
All notices shall be in writing and shall be sent by certified mail, return
receipt requested, or by wire communications (e.g., telex, twx, or facsimile),
to the respective Contract Administrator, at the address noted below, or as the
same may be changed from time to time by notice similarly given:
A. For LICENSEE
1. General administration and liaison shall be performed by -Office of
General Counsel, referred to herein as "LICENSEE'S Contract
Administrator"), Unisys Way, Blue Bell, PA 19424, with a copy to
Global Procurement Dept.
<PAGE>
2. Technical liaison shall be performed by (referred to herein as
"LICENSEE'S Technical Administrator"),(Address), or his/her designee
or successor.
3. Marketing liaison shall be performed by (referred to herein as
"LICENSEE'S Marketing Administrator"),(Address) or his/her designee
or successor.
B. For LICENSOR
1. General administration and liaison shall be performed by Kasim Mun
(referred to herein as "LICENSOR'S Contract Administrator"), 999
West Chester Pike # 202, West Chester, PA 19382, or his/her designee
or successor.
2. Technical liaison shall be performed by Martin Le Brun (referred to
herein as "LICENSORS Technical Administrator"), 999 West Chester
Pike # 202, West Chester, PA 19382, or his/her designee or
successor.
3. Marketing liaison shall be performed by Beth Mahoney (referred to
herein as "LICENSOR'S Marketing Administrator"), 202 Union Wharf,
Boston, MA 02109, or his/her designee or successor.
C. The Technical and Marketing Administrators may, as applicable to their
respective function, clarify, explain, provide further details, handle
necessary technical and marketing matters, implement technical and
marketing aspects, and develop administrative procedures, but shall have
no authority to affect or change any of the terms and conditions of this
Agreement. The exercise of LICENSEE'S rights of termination or
cancellation and the exercise of other general rights of LICENSEE are
reserved to LICENSEE's Contract Administrator.
ARTICLE I I - CANCELLATION/TERMINATION
A. Cancellation
1. This Agreement may be canceled by LICENSEE for cause, in the event
that (a) LICENSOR substantially fails to perform any of its material
obligations hereunder (including, but without limitation, the
support obligations set forth herein) and said cause is not
corrected within thirty (30 ) days after delivery of written notice
from LICENSEE specifying such cause, or (b) LICENSOR files, or has
filed against it, a voluntary or involuntary petition under Chapter
3 of Title 11 of the United States Code, 11 U.S. C. & 301, et seq.
(the "Bankruptcy Code"), upon delivery of a written cancellation
notice to LICENSOR.
2. This Agreement may be canceled by LICENSOR for cause, in the event
that (a) LICENSEE substantially fails to perform any of its material
obligations hereunder and said cause is not corrected within thirty
(30) days after delivery of written notice from LICENSOR specifying
such cause, or (b) LICENSEE files, or has filed against it, a
voluntary or involuntary petition under Chapter 3 of Title 11 of the
United States Code, 11 U. S.C. & 301, et seq. (the "Bankruptcy
Code"), upon delivery of a written cancellation notice to LICENSEE.
3. If the cause is not corrected within the applicable cure period
specified above, cancellation shall become effective immediately
upon receipt, by the party failing to correct the cause, of a
written cancellation notice from the other party.
B. Termination
1. LICENSEE may, upon at least one hundred twenty (120) days prior
written notice to LICENSOR, terminate this Agreement for the
convenience of LICENSEE.
2. This Agreement may be terminated by LICENSEE, upon at least sixty
(60) days prior written notice to LICENSOR, at any time after all
the licenses granted in Article 2 hereof becomes perpetual,
irrevocable, royalty free and fully paid up as provided in Article
4.
<PAGE>
C. Effect of Cancellation/Termination
1. Cancellation of this Agreement pursuant to Subparagraph A2, above,
or termination of this Agreement pursuant to Subparagraph B 1,
above, shall terminate the rights of LICENSEE, SUBSIDIARIES,
AFFILIATES and THIRD PARTIES to advertise and promote the PACKAGE,
DIAGNOSTICS, and DOCUMENTATION and to grant additional sublicenses
after such cancellation or termination; provided, however, that such
cancellation or termination shall not cancel, terminate or affect
sublicenses previously granted to END USERS; and further provided,
that LICENSEE, SUBSIDIARIES, AFFILIATES and THIRD PARTIES shall be
permitted to continue to use the PACKAGE, DIAGNOSTICS, and
DOCUMENTATION without limitation, including use to enable them to
meet their support and maintenance obligations to END USERS and
internal users existing at the time of such cancellation or
termination.
2. Cancellation of this Agreement pursuant to Subparagraph A 1, above,
or termination of this Agreement pursuant to Subparagraph B2, above,
shall not affect the then existing rights and licenses granted to
LICENSEE under Article 2 and such rights and licenses shall survive
such cancellation or such termination.
D. General
No termination or cancellation of this Agreement shall affect the
obligation of LICENSEE to make license fee payments which are due
hereunder. The parties' rights to terminate or cancel in accordance with
this Article are in addition to and shall not limit or prejudice any other
right or remedy available under this Agreement, at law, or in equity,
except as provided herein.
ARTICLE 12 - TAXES
The PACKAGE licensed hereunder to LICENSEE is basically for sublicense to END
USERS and therefore should be exempt from sales, use and other similar taxes.
However, if such tax should be imposed on LICENSOR, LICENSEE shall either bear
such tax by a direct payment to the taxing authority or shall reimburse LICENSOR
for such tax. A list of LICENSEE'S appropriate sales and use tax exemption
certificate numbers shall be furnished upon request by LICENSOR. In the event it
shall ever be determined that any such tax was not required to be paid, LICENSOR
agrees to notify LICENSEE and, if such tax was reimbursed to LICENSOR, to make
prompt application for the refund thereof, to take all proper steps to procure
the same, and when received, to pay the same to LICENSEE.
ARTICLE 13 - CONFIDENTIAL INFORMATION AND DISCLOSURE
A. Any information which either party may disclose to the other party shall
not be deemed to be confidential and shall be acquired free from any
restriction, unless the information is proprietary to the disclosing party
and, if it is disclosed in tangible form, the disclosing party marks such
information as being confidential to it by marking such information as
"Proprietary", "Restricted", or "Confidential". Any confidential
information disclosed orally shall be identified as confidential at the
time of disclosure and thereafter reduced to tangible form with a copy,
prominently marked as aforesaid, delivered to the receiving party within
fifteen (15) days of the verbal disclosure. When a writing contains both
confidential and non-confidential information, the disclosing party shall
specifically note the information which is confidential.
B. Each party shall exercise the same degree of care, in no event less than
reasonable care, to avoid the publication or dissemination of the
confidential information of the other party as it affords to its own
confidential information of a similar nature which it desires not to be
published or disseminated.
C. Confidential information disclosed under this Agreement shall only be used
by the receiving party in the furtherance of this Agreement or the
performance of its obligations hereunder.
D. The obligation of the parties not to disclose confidential information
shall survive the termination or cancellation of this Agreement. However,
neither party shall be obligated to protect confidential information of
the other party which:
<PAGE>
1. is rightfully received by the receiving party from another party
without restriction, or
2. is known to or developed by the receiving party independently
without use of the confidential information, or
3. is or becomes generally known to the public by other than a breach
of duty hereunder by the receiving party, or
4. has been or is hereafter furnished to others by the disclosing party
without restriction on disclosure, or
5. is known or available to the receiving party by inspection or
analysis of products available in the market.
The obligation not to use or disclose said confidential information shall end
three '(3) years after the date of receipt of said confidential information,
except with respect to software for which the obligation shall continue until
the occurrence of any of the events listed in Subparagraphs D 1 through D5,
above.
E. LICENSEE shall be permitted to disclose said confidential information to
SUBSIDIARIES, AFFILIATES, THIRD PARTIES and SUBCONTRACTORS for their use
in the furtherance of this Agreement in accordance with the rights and
licenses granted; provided, however, that SUBSIDIARIES, AFFILIATES, THIRD
PARTIES and SUBCONTRACTORS agree to protect such information to the extent
provided herein.
F. Nothing contained in this Article 13, or elsewhere, shall be construed as
preventing LICENSEE from marketing or sublicensing the PACKAGE,
DIAGNOSTICS, and DOCUMENTATION in the same manner as it may then market or
sublicense its other software products except as may be contained in
Appendices attached hereto. LICENSEE and SUBSIDIARIES, AFFILIATES and
THIRD PARTIES may disclose LICENSOR'S confidential information to END
USERS for the purposes of training, operation, maintenance and marketing
of the PACKAGE and DIAGNOSTICS; provided, however, that they shall require
such END USERS to keep confidential any LICENSOR confidential information
so transferred to the same extent LICENSEE requires confidentiality with
regard to its own confidential information under similar circumstances.
G. Disclosure of the contents of this Agreement, its Addenda, Appendices,
Attachments and Modifications shall not be disclosed to third parties
without the prior written agreement of the other party.
ARTICLE 14 - WARRANTY
A. LICENSOR warrants that it owns the entire right, title and interest in and
to the PACKAGE, DIAGNOSTICS, and DOCUMENTATION and that the PACKAGE,
DIAGNOSTICS, and DOCUMENTATION have not been disclosed to others except
under an obligation of confidentiality.
B. LICENSOR warrants that it has the right and power to grant the licenses
and rights set forth in this Agreement and warrants that the PACKAGE,
DIAGNOSTICS, and DOCUMENTATION do not violate the patents, copyrights,
trade secrets, or other proprietary rights of others.
C. LICENSOR warrants that (1) the PACKAGE and DIAGNOSTICS, as supplied, shall
perform in accordance with their specifications and the DOCUMENTATION
listed in Addendum A and the other requirements of this Agreement, and
shall properly interface to and operate with the operating system
specified in Article 1 Paragraph J, and modifications thereto, (2) the
PACKAGE does not contain any disabling devices, and (3) the DOCUMENTATION
accurately describes the features, functions, and use of the PACKAGE and
DIAGNOSTICS.
D. LICENSOR warrants that the PACKAGE, DIAGNOSTICS, and DOCUMENTATION are not
in the public domain.
E. LICENSOR warrants that it has no knowledge of any patents or copyrights
which are infringed or may be infringed, or any trade secrets or other
proprietary rights of other parties which are or may be misappropriated or
violated by using, making, copying, licensing, or distributing the
PACKAGE, DIAGNOSTICS, or DOCUMENTATION.
<PAGE>
F. LICENSOR warrants that is has agreements with its employees which are
sufficient for the fulfillment of LICENSOR'S obligations pursuant to this
Agreement.
G. LICENSOR warrants and represents that the PACKAGE and DIAGNOSTICS [do not]
contain a CRYPTOGRAPHIC ALGORITHM which requires licenses to be obtained
from the Department of Commerce (DOC) and, if required, the Department of
State (DOS), for export of said PACKAGE and DIAGNOSTICS.
H. LICENSOR warrants that each hardware, software, and firmware product
delivered under this Agreement shall be able to accurately process date
data including, but not limited to, calculating, comparing, and sequencing
from, into and between the 20th and 21st centuries, and 1999 and 2000,
including leap year calculations. If this Agreement requires that products
delivered under it must perform as a system or in combination with other
specified products, then this warranty shall apply to those products as a
system or in that combination. Except as may be specifically set forth in
this Article to the contrary, the remedies available to LICENSEE for
breach of this warranty shall be as set forth in and subject to the terms
and limitations of LICENSOR's general product warranties contained in this
Agreement, provided however, that notwithstanding anything to the contrary
set forth in this Agreement, the duration of this warranty shall extend
through the calendar year 2000, and provided further, that notwithstanding
any provision to the contrary in such general warranties, the remedies
available to LICENSEE under this warranty shall include repair or
replacement of any product provided hereunder whose failure to function as
above provided is discovered and made known to LICENSOR, whether by
LICENSEE or otherwise. Nothing in this warranty shall be construed to
limit any rights or remedies LICENSEE may otherwise have under this
Agreement with respect to defects other than date data functionality.
ARTICLE 15 - DISCLAIMER
EXCEPT AS EXPRESSLY STATED HEREIN, NEITHER PARTY HAS MADE ANY WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, CONCERNING
THE PACKAGE TO BE PROVIDED HEREUNDER, THE SCOPE OR DURATION OF ANY MARKETING
EFFORT WHICH LICENSEE MAY UNDERTAKE, OR THE SUCCESS OF ANY SUCH MARKETING
EFFORT. NEITHER PARTY HAS RELIED ON ANY EXPRESS OR IMPLIED REPRESENTATION OF THE
OTHER PARTY, WRITTEN OR ORAL, AS AN INDUCEMENT TO ENTERING INTO THIS AGREEMENT.
ARTICLE 16 - LIMITATION OF LIABILITY
EXCEPT AS PROVIDED IN ARTICLE 17, NEITHER PARTY SHALL BE LIABLE FOR ANY
INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT
LIMITED TO, LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
ARTICLE 17 - INFRINGEMENT/INDEMNITY
LICENSOR agrees to indemnify and hold harmless LICENSEE, SUBSIDIARIES,
AFFILIATES, THIRD PARTIES, SUBCONTRACTORS, END USERS and the sublicensees and
END USERS of any and all of the aforesaid from any claim, liability, damage or
expense including but not limited to legal expenses of whatever kind for, or on
account of, patent infringement, copyright infringement, misappropriation of
trade secrets or violation of other proprietary rights in connection with or
relating to the use, copying, reproduction, distribution, licensing or other
disposition of the PACKAGE, DIAGNOSTICS, or DOCUMENTATION. LICENSOR agrees to
defend or settle, at LICENSOR'S expense, all suits or proceedings arising out of
any of the foregoing; provided, however, that LICENSEE shall give LICENSOR
prompt written notice of all suits or threats of suit and other such claims
concerning patent or copyright infringement or misappropriation of trade secrets
and other intellectual property against LICENSEE, SUBSIDIARIES, AFFILIATES,
THIRD PARTIES, SUBCONTRACTORS, and the sublicensees and END USERS of any and all
of the aforesaid. LICENSEE, at its own expense, shall have the right to
participate in LICENSOR'S defense of any such action through LICENSEE'S own
counsel. In the event that LICENSOR fails after notice, to adequately defend or
settle any action which it is obligated to defend or settle under this Article
17, LICENSEE shall have the right of prosecuting and defending such action or
actions and to collect such costs and expenses (including attorney's fees) from
LICENSOR and shall further have the right to charge LICENSOR with any and all
awards, damages and court costs in such action or actions and to collect such
awards, damages and court costs from LICENSOR. If the PACKAGE, DIAGNOSTICS, or
DOCUMENTATION are held to be an infringement or misappropriation for which
LICENSEE is indemnified by LICENSOR, and their use is enjoined, LICENSOR
<PAGE>
shall, at LICENSOR'S option and expense, either:
1. procure for LICENSEE the right to continue to utilize the PACKAGE,
DIAGNOSTICS, and DOCUMENTATION pursuant to the license granted
herein, or
2. replace or modify the PACKAGE, DIAGNOSTICS, and DOCUMENTATION in
such a way that they shall not continue to constitute such
infringement or misappropriation.
LICENSOR shall not be liable under this Article 17 if the PACKAGE, DIAGNOSTICS,
or DOCUMENTATION have been modified by any of the parties indemnified hereunder
and such modification is solely the cause of any such infringement or
misappropriation unless such modifications were made in accordance with
LICENSOR'S instructions.
ARTICLE 18 - TRADEMARKS AND TRADE NAMES
Nothing contained in this Agreement shall be construed as licensing either party
to use any trademark or trade name owned or used by the other party without the
prior written consent of the other party. However, LICENSEE, SUBSIDIARIES,
AFFILIATES and THIRD PARTIES shall have the unrestricted use of the term stated
in this Agreement (and any other or subsequent term used by LICENSOR to identify
the PACKAGE and DIAGNOSTICS) in connection with the use, marketing, copying,
distribution, licensing and sublicensing of the PACKAGE, DIAGNOSTICS, and
DOCUMENTATION. When marketing the PACKAGE, DIAGNOSTICS, and DOCUMENTATION,
LICENSEE, SUBSIDIARIES, and AFFILIATES shall have the right to use their own
trademarks or trade names when referring to the PACKAGE, DIAGNOSTICS, or
DOCUMENTATION.
ARTICLE 19 - FORCE MAJEURE
Neither LICENSEE nor LICENSOR shall be liable to the other for delays in the
performance of or completion of this Agreement if notice of such delay is
provided as required in Article 22M and if such delay is caused by strikes,
riots, wars, government regulations, acts of God, fire, flood or other similar
causes beyond its control; provided, however, if such delay exceeds ninety (90)
days, the other party shall have the option, exercisable by written notice, to
cancel this Agreement pursuant to Article 11 A.
ARTICLE 20 - ASSIGNMENT AND BENEFITS
All of the terms and conditions of this Agreement shall be binding upon, inure
to the benefit of, and be enforceable by the respective successors and permitted
assigns of the parties hereto. Except as specifically stated in this Agreement,
neither this Agreement nor any of the rights, interests or obligations of any
party hereunder shall be assigned or delegated by either party hereto without
the prior written consent of the other. Such consent shall not be withheld
unreasonably. Any unauthorized assignment or delegation shall be null and void.
Notwithstanding the foregoing, either party may assign or otherwise transfer its
rights and obligations to successors in interest (whether by purchase of stock
or assets, merger, operation of law, or otherwise) of that portion of its
business related to the subject matter hereof.
ARTICLE 21 - MOST FAVORED CUSTOMER
LICENSOR warrants that the prices, payment terms and other terms and conditions
stated for the PACKAGE and services covered by this Agreement are not less
favorable than prices, payment terms or other terms and conditions accorded to
LICENSOR'S most favored customer for like items in similar quantities. If, at
any time during the term of this Agreement, LICENSOR accords to any other
customer of LICENSOR more favorable net prices, payment terms or other terms and
conditions for the PACKAGE and services which are substantially comparable to
those licensed or sold to LICENSEE hereunder, LICENSOR shall extend such prices,
payment terms and other terms and conditions to LICENSEE.
ARTICLE 22 - GENERAL PROVISIONS
A. Governing Law
This Agreement shall be construed, governed and interpreted in accordance
with the laws, but not the rules relating to the choice of law, of the
State of Pennsylvania.
<PAGE>
B. Captions/ Headings
The captions and headings of the Articles, clauses and paragraphs
contained herein have been inserted for the convenience of the parties and
shall not be construed as a part of or modifying any provisions of this
Agreement.
C. Waiver
The failure of either party to insist, in any one or more instances, upon
the performance of any of the terms, covenants or conditions of this
Agreement or to exercise any right hereunder, shall not be construed as a
waiver of the future performance of any such term, covenant or condition
or the future exercise of such right.
D. Severability
If any court should find any particular provision of this Agreement void,
illegal, or unenforceable, then that provision shall be regarded as
stricken from this Agreement and the remainder of this Agreement shall
remain in full force and effect.
E. Independent Contractors
It is agreed that the relationship between the parties is that of
independent contractors, and nothing contained in this Agreement shall be
construed or implied to create the relationship of partners, joint
venturers, agent and principal, . employer and employee, or any
relationship other than that of independent contractors. At no time shall
either party make any commitments or incur any charges or expenses for or
in the name of the other party.
F. Conflict of Interest
LICENSOR agrees that it shall not engage directly or indirectly either for
itself, or with or for any other person or corporation in any work or
undertaking which shall conflict with or create any legal impediment
against LICENSOR'S performance of its obligations under this Agreement and
the rights and licenses granted to LICENSEE hereunder. LICENSOR represents
that there is no such present conflict of interest nor any such legal
impediment.
G. Divestiture
Notwithstanding other provisions of this Agreement to the contrary,
SUBSIDIARIES, AFFILIATES and other business units of LICENSEE which are,
in whole or in part, divested by LICENSEE during the term of this
Agreement shall, nevertheless, retain all rights which such divested
entity had in the PACKAGE, DIAGNOSTICS, and DOCUMENTATION prior to such
divestiture. All sublicenses granted by such divested entities shall be
contributory toward the achievement of any quantity and volume pricing
discounts and payments shall be at the then applicable net license fees
for the PACKAGE.
H. Counterparts
This Agreement may be executed in any number of counterparts, each of
which together shall constitute one and the same instrument.
I. Publicity
LICENSOR shall not, except as may be required by law or federal
regulation, or except with the prior written permission of LICENSEE,
publicly advertise this Agreement, its Addenda, or its Appendices, or
disclose any of its contents to any third party.
J. Risk of Loss
Until such time as the deliverable items are in LICENSEE'S possession, all
risk of loss shall be LICENSOR'S.
<PAGE>
K. Entire Compensation
Except as may be specifically provided otherwise in this Agreement,
LICENSOR'S performance of the work and fulfillment of its other
obligations under this Agreement and the granting of licenses and rights
to LICENSEE shall be at no cost or charge to LICENSEE.
L. Personal Injury/Property Damage
Each party (the "Indemnifying Party") shall hold harmless the other party
from any claim of personal injury or property damage arising from any act
or omission of the Imdenifying Party. Upon request by LICENSEE,
LICENSOR shall furnish evidence of insurance coverage for such injury and
damage.
M. Notice of Delay
Whenever any occurrence (e.g., an event of Force Majeure or a filing under
a bankruptcy law) is delaying or threatens to delay either party's timely
performance under this Agreement, that party shall promptly give notice
thereof, including all relevant information with respect thereto, to the
other party.
N. Compliance with Law
The parties shall in the performance of this Agreement comply with all
applicable laws, executive orders, regulations, ordinances, rules,
proclamations, demands and requisitions of national governments or of any
state, local or other governmental authority which may now or hereafter
govern performance hereunder including, without limitation, all laws,
executive orders, regulations, ordinances, rules and proclamations
regarding Equal Employment Opportunity, the exporting of technology, and
withholding for income taxes.
0. Access to Books
Through a mutually acceptable independent auditor, LICENSOR shall have
reasonable access to the sufficient books and records as they pertain to
this Agreement of LICENSEE once every twelve (12) months for the sole
purpose of determining the amounts due hereunder, at LICENSOR'S own cost;
provided, however, that such auditor agrees to be bound by the provisions
of Article 13.
ARTICLE 23 - INSURANCE
A. LICENSOR shall maintain Worker's Compensation and Employer's Liability
Insurance upon its employees as required by law. LICENSOR shall also
maintain Comprehensive Liability Insurance for all operations necessary
and incidental to the conduct of this Agreement, including coverage of all
automobile exposure, all property liability exposure and contractual
liability exposure. Required insurance coverage will be held on a global
basis (to include the United States) and will remain in full force and
effect for the duration of this Agreement. Certificates evidencing the
validity of the applicable insurance requirements set forth below shall be
presented to LICENSEE prior to the signing of this Agreement by LICENSEE
personnel. LICENSOR shall maintain insurance to at least the following
minimum amounts:
1. Worker's Compensation with limit of statutory amount;
2. Employer's Liability Insurance with limit of one hundred thousand
dollars ($100,000);
3. Comprehensive Automobile Liability Insurance, with a combined single
limit of one million dollars ($1,000,000) for bodily injury, death
or property damage arising from any one occurrence;
4. Commercial General Liability insurance with minimum limits of not
less than two million ($2,000,000) dollars on a per occurrence
basis; and
5. Professional Liability (Errors and Omission) insurance with minimum
limits of two million ($2,000,000) dollars.
<PAGE>
B. Such policies shall name LICENSEE as an additional insured and
provide that coverage may not be canceled without thirty (30) days
prior written notice to LICENSEE. Such insurance shall not be deemed
a limitation of any liability of LICENSOR. Such insurance shall be
primary, not contributing with, and not in excess of, coverage which
LICENSEE may carry. The insurance afforded by these policies applies
separately to each insured against whom claim is made or suit is
brought, in the same manner as such insured would be covered if the
policy insured only such party. The inclusion of such additional
insured shall not increase the policy limits.
ARTICLE 24 - ESCROW
Escrow Agreement
A. LICENSOR and LICENSEE shall, contemporaneously herewith, execute an
agreement with Data Securities International, Inc. (DSI) for the
deposit and possible release of SOURCE CODE, SOURCE CODE listings,
comment statements, flow charts, maintenance tools, test programs,
program specifications and other documents and materials related to
the PACKAGE (hereinafter the "Deposit") for use by LICENSEE as
provided for herein. The agreement executed between LICENSOR,
LICENSEE and DSI is set forth in Addendum C hereto. LICENSOR shall
make the initial delivery of the Deposit to DSI within thirty (30)
days after the Appendix Effective Date. UPDATES of said Deposit
shall be delivered to DSI at the same time that UPDATES of the
OBJECT CODE form of the PACKAGE and DOCUMENTATION are delivered to
LICENSEE hereunder. DSI's fees shall be paid by LICENSEE. Failure of
LICENSEE to make timely payments to DSI shall not permit LICENSEE to
receive Deposit due to non-payment clause of Escrow Agreement in
Addendum C.
B. Restricted SOURCE CODE License
1. In the event that DSI delivers the Deposit to LICENSEE, as
provided in the agreement between DSI, LICENSEE and LICENSOR,
concurrent with the delivery of said Deposit, LICENSOR grants
and LICENSEE accepts the same license and rights for the
SOURCE CODE form of the PACKAGE and DOCUMENTATION as is
granted to LICENSEE in Article 2 for the OBJECT CODE form of
the PACKAGE and DOCUMENTATION; provided, however, that
LICENSEE shall have no right to sublicense the SOURCE CODE
form to END USERS or to include such right in sublicenses
granted to SUBSIDIARIES, AFFILIATES or THIRD PARTIES.
2. Notwithstanding the foregoing proviso, LICENSEE shall have the
right to grant sublicenses for the SOURCE CODE form to a
government (at any level), or a government's agency or
authority if such grant is a mandatory requirement for a
contract award and to further grant such right to
SUBSIDIARIES, AFFILIATES and THIRD PARTIES; provided, however,
that the grant to such END USERS shall be as restricted as
grants to the U.S. Government under the "Restricted Rights" to
software provisions and the "Limited Rights" to technical data
provisions of applicable Procurement Regulations and the use
of the PACKAGE shall be restricted in accordance with such
limited applicable Procurement Regulations.
C. Warranty
1. LICENSOR warrants that the Escrow Materials furnished as provided in
Paragraph A, above, comprise the then current SOURCE CODE
release/level of the PACKAGE and then current DOCUMENTATION and
shall satisfy LICENSEE'S requirements herein.
2. LICENSOR warrants that the Escrow Materials will enable a reasonably
skilled computer programmer to maintain and modify the PACKAGE
without the aid of LICENSOR or reference to any other materials.
ARTICLE 25 - ADDENDA/APPENDICES/ATTACHMENTS
All Addenda, Appendices, attachments and other documents referred to in this
Agreement and all specifications, drawings and documents referenced therein are
hereby incorporated in and made part of this Agreement.
ARTICLE 26 - SURVIVAL OF PROVISIONS
<PAGE>
In addition to the rights and obligations which survive as expressly provided
for elsewhere in this Agreement, the Articles and Addenda which by their nature
should survive, shall survive and continue after any termination or cancellation
of this Agreement, and specifically Articles 2, 11,13, 14, 15, 16, 17, 18, 20,
22 shall survive.
ARTICLE 27 - ENTIRE AGREEMENT
This Agreement states the entire agreement between the parties with respect to
the subject matter hereof and shall supersede all previous proposals,
negotiations, representations, commitments, writings, agreements and other
communications, both oral and written, between the parties. This Agreement may
not be released, discharged, changed or modified except by an instrument in
writing signed by a duly authorized representative of each of the parties.
This Agreement has been duly signed by authorized representatives of the parties
and shall become effective as of the latest date set forth below (the "Effective
Date").
(LICENSOR) Unisys Corporation
By: By:
---------------------------------- ----------------------------
------------------------------------- ----------------------------
Title: Title:
-------------------------------- --------------------------
Date: Date:
-------------------------------- --------------------------
<PAGE>
EXHIBIT 1 USER COMMUNICATION FORM (UCF) - (SIMULATION)
-------
To: (Support Activity Location)
UCF# (Dist/Sub/county)* (Branch/Loc)* (Customer Ref)
Dated Prepared:________________
Class:
[ ] Software [ ] Hardware [ ] Application [ ] MTR
Form Type:
[ ] Problem [ ] Feature Suggestion
<TABLE>
<CAPTION>
================================================================================
PRODUCT/SYSTEM DESCRIPTION
(Host Processor/Machine Type) (System Release) (Unit Style) (Serial No)
(Product) (Level) (Component)
(Firmware Level) (Op system) (OS Level)
Occurrences Reproductible Product Status Priority
<S> <C> <C> <C> <C> <C>
[ ] One-time [ ] Yes [ ] Un-usable [ ] Problem Avoidable [ ]A [ ]C
[ ] Multiple [ ] No [ ] Degraded [ ] System Unaffected [ ]B
</TABLE>
================================================================================
MATERIALS
================================================================================
Material Attached (Dump, Trace, Data, Obj. Code, Listing, Parts, Tape)
No._____
[ ] Yes [ ] No (Materials Description)
[ ] Additional Information (Previous UCF Reg. No.) (Previous UCF Ref#)
[ ] Forwarded Under Separate Cover (Comments)
================================================================================
DESCRIPTION
================================================================================
Concise Description (Maximum 76 Chars)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Operations Impact)
(Pertinent Configuration)
(Full Description)
(Analysis / Workaround)
[ ] Description Continued
Suggested Fix Attached Site
Tested
[ ] Yes [ ] No [ ] Yes [ ] No
<PAGE>
EXHIBIT 1 USER COMMUNICATION FORM (UCF) - (SIMULATION)
================================================================================
SITE
IDENTIFICATION
================================================================================
(Originator's Name) (Unisys Site Number)
(Company Name) (Telephone Number)
(Address) (Telex/Dex Number)
(City, State, Country, Zip Code)
================================================================================
SUPPORT (UNISYS USE ONLY)
================================================================================
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
(Reviewer) (Title) (Organization) (Phone Number) (Telex/Dex Number)
(Number)
--------------------------------------------------------------------------------------------------------------------
(Address) (Date Acknowledged) (Date Received) (Authorization Number)
--------------------------------------------------------------------------------------------------------------------
(City, State, Country, Zip Code) (Assigned Priority) (Register Number)
--------------------------------------------------------------------------------------------------------------------
(Keywords Minimum Of One) (Keyword Dictionary)
--------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
ADDENDUM A CATEGORIES OF CRYPTOGRAPHIC ALGORITHMS
A. Data Confidentiality - Equipment or software which protects user data from
observation by encrypting the data. This does not include encryption of
data used for authentication or access control only, such as passwords,
PIN's or cryptographic keys.
B. Data Authentication or Data Integrity - Equipment or software which
calculates a Message Authentication Code (MAC) or similar result to assure
the identity of the source of the data.
C. Access Control - Equipment or software which protect passwords or Personal
Identification Numbers (PIN) or similar data to prevent unauthorized use
of computing facilities or other resources.
D. Non-Repudiation - Equipment or software which calculates a digital
signature or similar result to assure the identity of the source of the
data, provable to a third party.
E. Proprietary Software Protection - Decryption-only routines for encrypted
proprietary software, fonts, or other computer-related proprietary
information for the purpose of maintaining vendor control over said
information.
ADDENDUM B UNISYS TRAVEL POLICY
Lodging: Accommodations shall be selected in accordance with the hotels
and the corresponding rates indicated in the Unisys Hotel
Directory, whenever possible. The itemized hotel bill must be
submitted as a receipt.
Meals: The cost of all meals will be reimbursed on an
actual/reasonable basis, except meals provided free of charge
on airlines, at hotels, at Unisys facilities, at Unisys
sponsored meetings, etc. Meals provided free of charge shall
be itemized as such. Any meal cost of ten dollars ($10) or
greater must be supported with a charge card or otherwise
valid receipt.
Car Rental: The rental of an automobile at a rate in excess of major
rental agency rates for standard automobiles is prohibited.
The itemized car rental agreement form must be submitted as a
receipt.
Travel: All personnel must travel by coach or economy class for air
and rail travel. Unisys authorized travel of personnel by
private auto shall be compensated at the rate of thirty-one
cents ($0.31) per mile, plus tolls and parking fees. The
ticket form for air or rail travel must be submitted as a
receipt.
The above information is provided as a guideline and shall be adhered to
whenever possible. However, all reasonable, actual expenses incurred which are
submitted and supported by appropriate receipts (any expense of ten dollars
($10) or greater must be supported with a charge card or otherwise valid
receipt) shall be reimbursed.
ADDENDUM C TECHNOLOGY ESCROW AGREEMENT
Account Number__________________________
This Technology Escrow Agreement including the Exhibits and Addenda
("Agreement") is effective this ______day of _____, _____, by and between Data
Securities International, Inc. ("DSI") a Delaware corporation, InfoActiv, Inc.
("Licensor") a Pennsylvania corporation, and ("Licensee").
WHEREAS, Licensor has or will enter into an agreement with Licensee for the use
of proprietary technology and other materials of Licensor;
WHEREAS, Licensor and Licensee desire this Technology Escrow Agreement to be
supplementary to said agreement;
WHEREAS, access to the proprietary technology and other materials is critical to
Licensee in the conduct of its business;
WHEREAS, Licensor has deposited or will deposit with DSI the related proprietary
technology and other materials ("Deposit") to provide for retention and
controlled access for Licensee under the conditions specified below;
<PAGE>
NOW THEREFORE, for good and valuable consideration, the receipt of which is
hereby acknowledged, and in consideration of the promises, mutual covenants and
conditions contained herein, the parties hereto intending to be legally bound,
agree as follows:
1. Licensor Deposit Account. Following the execution of this Agreement and
the payment of the set up and deposit fees to DSI, DSI shall open a
Deposit Account for Licensor. The opening of the account means that DSI
shall establish an account ledger in the name of the Licensor and that
Licensor shall receive renewal notices as provided in Section 8. Unless
and until Licensor makes an Initial Deposit with DSI, DSI. shall have no
obligation to Licensor except as defined by this Section.
2. Designated Representative. Licensor and Licensee each agree to designate
one individual to receive notices from DSI and to act on behalf of
Licensor and Licensee respectively with respect to the performance of
their obligations as set forth in this Agreement and to notify DSI
immediately, in the manner stipulated in Exhibit A, in the event of any
change from one Designated Representative to another.
3. Initial Deposit. The Initial Deposit will consist of all material as
required by the agreement between Licensor and Licensee and initially
supplied by Licensor to DSI as detailed in an accompanying document called
a "Description of Deposit Materials" hereinafter referred to as an Exhibit
B. DSI shall issue to Licensor and Licensee a complete copy of each
Agreement, including the Exhibits within ten (10) days of acceptance by
DSI of the Initial Deposit.
4. Deposit Changes. If required by agreement between Licensor and Licensee,
Licensor has the obligation to keep the Deposit updated with supplemental
or replacement materials.
a. Supplemental Deposit. The Supplemental Deposit Will include any
materials added to the Deposit. Licensor will submit the
Supplemental Deposit accompanied by an Exhibit B. Within ten (10)
days of acceptance by DSI of such Supplemental Deposit, DSI shall
notify Licensor and Licensee by issuing a copy of the Exhibit B.
b. Replacement Deposit. Replacement materials replace the existing
Deposit defined by an Exhibit B(s). Portions of a Deposit may not be
replaced. Licensor will submit the Replacement materials accompanied
by an Exhibit B. Within ten (10) days of acceptance by DSI of such
Replacement materials, DSI shall notify Licensor and Licensee by
issuing a copy of the Exhibit B. DSI will destroy or return to
Licensor all materials that are replaced by the Replacement
Materials as requested by Licensor.
c. Retention of Existing Deposit. Within ten (10) days of receipt of a
request by Licensor to Replace the Deposit, DSI will send notice to
Licensee, including a copy of the Exhibit B describing the new
materials, stating that Licensor requests to replace the existing
Deposit.
Licensee has twenty (20) days from the mailing of such notice by DSI
to instruct DSI to retain the Existing Deposit held by DSI. A
retention of Existing Deposit could incur an additional Deposit
storage fee as specified by DSI's schedule of fees.
If Licensee does not instruct DSI to retain the Existing Deposit,
DSI shall permit such Existing Deposit to be replaced with the
Replacement materials.
Permission is hereby given by Licensor to DSI to retain such
Existing Deposit if so requested by this Licensee.
5. Deposit Inspection. Upon the receipt of the Initial Deposit materials and
any Deposit Changes, DSI will visually match the listed items on the
Exhibit B to the labeling of such materials.
Except as otherwise provided herein or otherwise between Licensee and DSI,
DSI shall not be responsible for verifying the contents or validating the
accuracy of Licensor's labeling. Acceptance of the Deposit will occur only
when DSI concludes that the Deposit Inspection is complete.
6. Licensee Registration Account. Following the execution of this Agreement
and the payment of the registration fee
<PAGE>
to DSI, DSI shall open a Registration Account for Licensee. The opening of
the Registration Account means that DSI shall establish an account ledger
in the name of the Licensee and that Licensee shall receive renewal
notices as provided in Section 8. Unless and until Licensor makes an
Initial Deposit of Materials with DSI, DSI shall have no obligation to
Licensee except as defined by this Section.
7. Deposit Obligations of Confidentiality. DSI agrees to establish a secure
receptacle in which it shall place the Deposit and shall put the
receptacle under the control of one or more of its officers, selected by
DSI, whose identity shall be available to Licensor and Licensee at all
times. DSI shall exercise a professional level of care in carrying out the
terms of this Agreement.
DSI acknowledges Licensor's assertion that the Deposit shall contain
proprietary data of Licensor and that DSI has an obligation to preserve
and protect that confidentiality.
8. Term of Agreement. This Agreement will have a term coterminous with the
term of the agreement between Licensor and Licensee but shall survive such
term in the event said agreement is canceled for the default of Licensor
and until the Deposit is delivered to Licensee as provided for in Section
11, below. In the event that the annual fees are not received when due,
DSI shall so notify Licensor and Licensee. If the annual fees are not
received within thirty (30) days thereafter, this Agreement will expire
without further notice. Licensee has the right to pay annual fees and
other related fees.
9. Expiry. Upon termination of this Agreement as provided in Section 8 above,
all duties and obligations of DSI to Licensor and Licensee will terminate,
except as provided herein. If this Agreement terminates and the Deposit
has not been released to Licensee and Licensor requests. the return of the
deposit, DSI shall return the Deposit to Licensor only after all
outstanding invoices and the deposit return fees are paid. If the fee(s)
are not received by the anniversary date of the Agreement, DSI shall, at
its option, destroy or return the Deposit to Licensor.
10. Filing For Release of Deposit by Licensee. Upon notice to DSI by Licensee
of the occurrence of a release condition as defined in Section 11, and
payment of the filing for release fee, DSI shall release the Deposit to
Licensee and shall notify Licensor by certified mail with a copy of the
notice from the Licensee.
11. Release of Deposit to Licensee. Release conditions are:
a. Permanent
1. Failure of the Licensor to pay required escrow fee;
2. Failure of the Licensor to maintain materials with the escrow
agent;
3. Failure of the Licensor to continue to do business in the
ordinary course;
4. Licensor's failure to carry out maintenance or Support
obligations imposed on it pursuant to the license agreement or
other agreement between Licensor and Licensee;
5. Cancellation of the agreement between Licensor and Licensee
for the default of Licensor, or
b. Temporary
Temporary releases as permitted by the provisions of the agreement between
Licensor and Licensee.
DSI is authorized to release the Deposit to the Licensee filing for
release following receipt of Licensee's notice and request therefore.
12. Conditions for Use Following Release. Following a release as provided in
Section 11, Licensee shall have in addition to any rights specified in the
license or other agreement(s) between Licensor and Licensee, the
non-exclusive right to use the released material and technology for the
purpose of continuing the benefits afforded to Licensee by the license or
other agreement(s) between Licensor and Licensee, unless otherwise
specified in such
<PAGE>
license or other agreement(s). Additionally, Licensee shall be required to
maintain the confidentiality of the released material and technology.
13. Notice. Notice to Licensor, Licensee and DSI should be sent to the parties
as identified in the Attached Exhibit A.
14. Indemnification. Licensor and Licensee agree to defend and indemnify DSI
and hold DSI harmless from and against all claims, actions and suits,
whether in contract or in tort, and from and against any and all
liabilities, losses, damages, costs, charges, counsel fees, and other
expenses of any nature (including, without limitation, settlement costs)
incurred by DSI as a result of performance of this Agreement, except in
the event of a judgment which specified that DSI failed to act or acted
with gross negligence or willful misconduct.
15. Audit Rights. DSI agrees to keep records of the activities undertaken and
materials prepared pursuant to this Agreement. Licensor and Licensee will
be entitled at reasonable times, during normal business hours and upon
reasonable notice to DSI, during the term of this Agreement to inspect the
records of DSI with respect to this Agreement.
Licensor or Licensee will be entitled, upon reasonable notice to DSI and
during normal business hours, at the facilities designated by DSI,
accompanied by a designated employee of DSI, to inspect the physical
status and condition of the Deposit. The Deposit may not be changed by
Licensor or Licensee during the audit.
16. General. DSI may act in reliance upon any written instruction, instrument,
or signature believed to be genuine and may assume that any person giving
any written notice, request, advice or instruction in connection with or
relating to this Agreement has been duly authorized to do so, provided,
however, DSI may only release the Deposit if it receives a statement
signed by an officer of Unisys stating his or her belief that based on
information in his or her possession, release is justified. DSI is not
responsible for failure to fulfill its obligations under this Agreement
due to causes beyond its control.
This Agreement is to be governed by, and construed in accordance with the
laws of the State of California.
This Agreement, including the Exhibits and Addenda hereto, constitutes the
entire Agreement between the parties concerning the subject matter hereof,
and will supersede all previous communications, representation,
understandings, and agreements, either oral or written, between the
parties.
If any provision of this Agreement is held by any court to be invalid or
unenforceable, that provision will be severed from this Agreement and any
remaining provisions will continue in full force.
17. Fees. All service fees will be due in full at the time of the request for
service. Renewal fees will be due in full upon the receipt of invoice
unless otherwise specified by the invoice. For the purpose of annual
renewal fees the effective date of this Agreement will be the anniversary
date. Invoiced fees must be paid within sixty (60) days of receipt of
invoice or DSI may terminate this Agreement. If payment is not timely
received by DSI, DSI shall have the right to accrue and collect interest
at the rate of one and one-half percent per month (18% per annum) from the
date of invoice for all late payments.
All service fees and annual renewal fees will be those specified in DSI's
Schedule of Fees in effect at the time of renewal, or request for service,
except as otherwise agreed. For any increase in DSI's standard fees, DSI
shall notify Licensor and Licensee at least ninety (90) days prior to any
renewal of this Agreement. For any service not listed on the Schedule of
Fees, DSI shall provide a quote prior to rendering such service.
18. Verification Rights. If requested by this Licensee, Licensor grants to DSI
the right to verify the Deposit for accuracy, completeness and
sufficiency. Licensor hereby also permits DSI to verify, audit, and
inspect the proprietary materials to be held or held in deposit to confirm
the quality of the proprietary materials for the benefit of the Licensee.
Upon request by Licensor, DSI will issue a copy of the verification
results to Licensor.
Licensor hereby grants DSI the right to use the facilities of Licensor,
free of charge to DSI, including its computer systems. Licensor agrees to
make available any technical and support personnel necessary for DSI to
perform verification of the deposit.
<PAGE>
Licensor hereby grants DSI the permission to release to Licensee
information pertaining to directory lists and/or table of contents of
computer media, manuals, schematics, and manufacturing documents. Licensor
grants to DSI the permission to release to Licensee copies of any
executables or object code modules prepared by DSI during its "Load and
Compile" validation level for the purposes of determining the content and
quality of the Deposit.
If requested by Licensee, Licensor agrees to permit one employee of
Licensee to be present at Licensor's facility and to observe the
compilation or verification of the material to be deposited by Licensor.
19. Certification by Licensor. Licensor represents and warrants to Licensee
that the Deposit materials are all of the Escrow Materials to be deposited
by Licensor pursuant to the Agreement between the Parties. A description
of such materials is contained in the various Exhibit B(s).
20. Transfer of Copy Title. Licensor hereby transfers to DSI all rights in the
title to a copies of the Deposit deposited hereunder with DSI, provided
that DSI shall hold such Deposit and rights pursuant to the provisions of
this Agreement. DSI agrees to accept the transfer of rights thereto in
strict accordance with this Agreement.
DSI may duplicate the Deposit only as necessary to preserve and safely
store the Deposit, and to provide copies thereof, as authorized herein, to
Licensee. DSI shall reproduce on all copies of the Deposit made by DS1 any
proprietary or confidentiality notices contained in the Deposit originally
deposited with it by Licensor.
Except as provided in this Agreement, DSI agrees that it shall not
divulge, disclose, otherwise make available to third parties, or make any
use whatsoever of the Deposit, or of any information provided to it by
Licensor in connection with this Agreement, without the express prior
written consent of Licensor. This obligation will continue indefinitely
notwithstanding termination of this Agreement.
In the event that a copy of any Deposit is delivered to Licensee pursuant to
this Agreement, Licensee shall have all rights relative thereto which are
applicable under the terms of the license agreement or other agreement regarding
the use of the deposit between Licensor and Licensee.
Data Securities International, Inc.
--------------------- -------------------
Licensor Licensee
By: By: By:
--------------------- ----------------------- -------------------------
Name: Name: Name:
------------------- -------------------- ---------------------
Title: Title: Title:
------------------- ------------------- -----------------------
Date: Date: Date:
------------------- -------------------- ---------------------
<PAGE>
TECHNOLOGY ESCROW AGREEMENT
Account Number __________________
EXHIBIT A Designated Representatives and Locations
Notices to Licensor Regarding
Agreement Terms and Conditions Invoices should
should be addressed to: be addressed to:
Licensor:
-------------------------- -------------------------
Address
------------------------------ ----------------------------
------------------------------ ----------------------------
------------------------------ ----------------------------
Designated Representative:
------------- ----------------------------
Phone:
--------------------------------- ----------------------------
Notices to Licensee Regarding
Agreement Terms and Conditions Invoices should
should be addressed to: be addressed to:
Licensor:
-------------------------- -------------------------
Address
------------------------------ ----------------------------
------------------------------ ----------------------------
------------------------------ ----------------------------
Designated Representative:
------------- ----------------------------
Phone:
--------------------------------- ----------------------------
All requests from Licensor or Licensee to change the designated representative
must be given in writing and signed by an officer of Licensor or Licensee as the
case may be.
All contracts, deposit materials Invoice Inquiries and
and Official Notifications to DSI Remittance of Fees to DSI
should be addressed to: should be addressed to:
Data Securities Int'l, Inc. Data Securities Int'l Inc.
Attn: Contract Administration Attn: Accounts Receivable
9555 Chesapeake Drive 425 California Street
Suite 200 Suite 1450
San Diego, CA 92123 San Francisco, CA 94104
(619) 694-1900 (415) 398-7900
Date:
------------------------------
<PAGE>
TECHNOLOGY ESCROW AGREEMENT
Account Number_____________
EXHIBIT B Description of Deposit Materials
Deposit Account Number
-----------------------------
Deposit Account Name
-------------------------------
Licensor, pursuant to a Technology Escrow Agreement, hereby deposits the below
described materials into the above referenced Deposit Account by transferring
them to Data Securities International, Inc. The Deposit type is: (check space
that applies)
_____Initial Deposit _____Supplemental Deposit ______Replacement Deposit
If Replacement then destroy Deposit ______ or return Deposit _____
If no Deposit type has been checked the materials will be deemed to be an
Initial or Supplemental Deposit.
DEPOSIT MATERIALS
Item description Media Quantity
I certify that the above described
materials were delivered/sent to
Data Securities International, Inc. Received the materials.
By: By:
--------------------- -------------------------
Name: Name:
------------------- ---------------------
Title: Title:
------------------- -----------------------
For: For:
------------------- -----------------------
Date: Date:
------------------- ---------------------
Exhibit B No. _______
ISE _______
<PAGE>
APPENDIX 1 SAMPLE APPENDIX
This Appendix is entered into by the parties with respect to ... (general name
of the Appendix, e.g., ProActiv Agent Software Package) as further described in
Sections attached to this Appendix.
Appendix Effective Date
-----------------------
Appendix Delivery Date
------------------------
SECTION A PACKAGE, DUGNOSTICS, AND DOCUMENTATION
A. PACKAGE
(List modules/specify media)
B. DIAGNOSTICS
(List modules/specify media)
C. DOCUMENTATION
1. Technical/Specification
2. END USER
3. Marketing Literature
4. (List other in detail)
D. ENVIRONMENT
(List operating systems, equipment, support, etc. required for PACKAGE and
DIAGNOSTICS to operate. Include revision levels.)
<PAGE>
SECTION B COMPENSATION SCHEDULE
LICENSE FEE
Commercial Government Educational
A. PACKAGE
B. SERVICES
<PAGE>
SECTION C QUALITY CONTROL/VERIFICATION TESTS
(Note: Unisys local or organization specific Quality Provisions may
be substituted here.)
This Appendix 1, Section C sets forth the criteria for establishment of detailed
plans for the quality control of changes made to the PACKAGE, DIAGNOSTICS, and
DOCUMENTATION and for verification of the performance of the PACKAGE and
DIAGNOSTICS and uniformity between the PACKAGE, DIAGNOSTICS, and DOCUMENTATION.
A. Quality Control
A Quality Plan shall be jointly developed. The Quality Plan shall be complete,
comprehensive and include all quality standards, which are applied to ensure
that the PACKAGE and DIAGNOSTICS meet the requirements as defined in the
applicable DOCUMENTATION, specifications and Agreement. The Quality Plan shall
be agreed upon no later than _____________ ( ) days after the Effective Date of
the Agreement.
1. The Quality Plan shall include an ongoing quality process for the PACKAGE
and DIAGNOSTICS. The Quality Plan shall include continuous quality control
processes for any change including CORRECTIONS, IMPROVEMENTS, UPDATES,
UPGRADES and ENHANCEMENTS.
2. LICENSORS Technical Administrator shall report to LICENSEE'S Technical
Administrator on all matters relating to quality and performance of the
PACKAGE and DIAGNOSTICS.
3. LICENSOR shall maintain documentation, defining all processes and related
procedures for the qualification. of the PACKAGE and DIAGNOSTICS. PACKAGE
and DIAGNOSTICS qualification procedures shall include corrective action
controls for defects found during qualification of the PACKAGE and
DIAGNOSTICS.
4. LICENSOR shall maintain a system of documentation controls to insure all
documents/drawings relating to the PACKAGE and DIAGNOSTICS are current,
complete, and accurate.
5. The parties shall define the test procedures and test software to be run
in verification testing Of the PACKAGE and DIAGNOSTICS.
6. LICENSEE shall reserve the right to perform in process audits during the
qualification process.
B. Verification
There shall be three (3) basic types of tests performed. The performance
characteristics of the various tests shall be consistent with the DOCUMENTATION,
specifications (detailed in Section A) and any other requirements of this
Agreement.
1. System Verification Test
a. The System Verification Test shall demonstrate the performance and
operability of the PACKAGE and DIAGNOSTICS with hardware specified
by LICENSEE. The System Verification Test shall be conducted by
LICENSOR with LICENSEE having the right to observe and audit test
results. A test report shall be supplied and reviewed with LICENSEE
at the conclusion of the test.
b. The System Verification Test shall be conducted for each version of
the PACKAGE and DIAGNOSTICS to be delivered.
2. Performance Verification Test
a. The Performance Verification Test shall demonstrate the throughput
and response time of the PACKAGE and DIAGNOSTICS. LICENSOR shall
provide LICENSEE with a Test Report stating performance results.
b. The test procedures in the detailed plan shall be cross indexed to
show how they demonstrate the
<PAGE>
throughput and response time capabilities and requirements set forth
in applicable DOCUMENTATION, specifications and any other
requirements of this Agreement. The Performance Verification Test
shall be conducted by LICENSOR but, LICENSEE shall have the right to
observe and audit the test.
c. For any changes made to the PACKAGE and DIAGNOSTICS, a test plan
shall be developed by LICENSOR and shall be mutually agreed to by
the parties hereto.
3. Documentation Verification
a. A DOCUMENTATION Verification Audit procedure shall be generated by
LICENSOR and shall be mutually agreed to. Reports shall be supplied
to LICENSEE at the conclusion of initial verification and after any
change is made to the DOCUMENTATION.
b. The clarity, completeness, and accuracy of all END USER
DOCUMENTATION shall be verified during this test through actual
trial usage with the PACKAGE and DIAGNOSTICS.
<PAGE>
SECTION D HARDWARE AND SOFTWARE TEST ENVIRONMENT
<PAGE>
ADDENDUM C TECHNOLOGY ESCROW AGREEMENT
Account Number 0914363-00001-214013
This Technology Escrow Agreement including the Exhibits and Addenda
("Agreement") is effective this 24th day of June, 1999 by and between
DataSecurities International, Inc. ("DSI") a Delaware corporation, InfoActiv,
Inc., ("Licensor") a Pennsylvania corporation, and Unisys Corporation
("Licensee").
WHEREAS, Licensor has or will enter into an agreement with Licensee for the use
of proprietary technology and other materials of Licensor;
WHEREAS, Licensor and Licensee desire this Technology Escrow Agreement to be
supplementary to said agreement;
WHEREAS, access to the proprietary technology and other materials is critical to
Licensee in the conduct of its business;
WHEREAS, Licensor has deposited or will deposit with DSI the related proprietary
technology and other materials ("Deposit") to provide for retention and
controlled access for Licensee under the conditions specified below;
NOW THEREFORE, for good and valuable consideration, the receipt of which is
hereby acknowledged, and in consideration of the promises, mutual covenants and
conditions contained herein, the parties hereto intending to be legally bound,
agree as follows:
1. Licensor Deposit Account. Following the execution of this Agreement and
the payment of the set up and deposit fees to DSI, DSI shall open a
Deposit Account for Licensor. The opening of the account means that DSI
shall establish an account ledger in the name of the Licensor and that
Licensor shall receive renewal notices as provided in Section 8. Unless
and until Licensor makes an Initial Deposit with DSI, DSI shall have no
obligation to Licensor except as defined by this Section.
2. Designated Representative. Licensor and Licensee each agree to designate
one individual to receive notices from DSI and to act on behalf of
Licensor and Licensee respectively with respect to the performance of
their obligations as set forth in this Agreement and to notify DSI
immediately, in the manner stipulated in Exhibit A, in the event of any
change from one Designated Representative to another.
3. Initial Deposit. The Initial Deposit will consist of all material as
required by the agreement between Licensor and Licensee and initially
supplied by Licensor to DSI as detailed in an accompanying document called
a "Description of Deposit Materials" hereinafter referred to as an Exhibit
B. DSI shall issue to Licensor and Licensee a complete copy of each
Agreement, including the Exhibits within ten (10) days of acceptance by
DSI of the Initial Deposit.
4. Deposit Changes. If required by agreement between Licensor and Licensee,
Licensor has the obligation to keep the Deposit updated with supplemental
or replacement materials.
a. Supplemental Deposit. The Supplemental Deposit will include any
materials added to the Deposit. Licensor will submit the
Supplemental Deposit accompanied by an Exhibit B. Within ten (10)
days of acceptance by DSI of such Supplemental Deposit, DSI shall
notify Licensor and Licensee by issuing a copy of the Exhibit B.
b. Replacement Deposit. Replacement materials replace the existing
Deposit defined by an Exhibit B(s). Portions of a Deposit may not be
replaced. Licensor will submit the Replacement materials accompanied
by an Exhibit B. Within ten (10) days of acceptance by DSI of such
Replacement materials, DSI shall notify Licensor and Licensee by
issuing a copy of the Exhibit B. DSI will destroy or return to
Licensor all materials that are replaced by the Replacement
Materials as requested by Licensor.
c. Retention of Existing Deposit. Within ten (10) days of receipt of a
request by Licensor to Replace the Deposit, DSI will send notice to
Licensee, including a copy of the Exhibit B describing the new
materials, stating that Licensor requests to replace the existing
Deposit.
<PAGE>
Licensee has twenty (20) days from the mailing of such notice by DSI
to instruct DSI to retain the Existing Deposit held by DSI. A
retention of Existing Deposit could incur an additional Deposit
storage fee as specified by DSI's schedule of fees.
If Licensee does not instruct DSI to retain the Existing Deposit,
DSI shall permit such Existing Deposit to be replaced with the
Replacement materials.
Permission is hereby given by Licensor to DSI to retain such
Existing Deposit if so requested by this Licensee.
5. Deposit Inspection. Upon the receipt of the Initial Deposit materials and
any Deposit Changes, DSI will visually match the listed items on the
Exhibit B to the labeling of such materials.
Except as otherwise provided herein or otherwise between Licensee and DSI,
DSI shall not be responsible for verifying the contents or validating the
accuracy of Licensor's labeling. Acceptance of the Deposit will occur only
when DSI concludes that the Deposit Inspection is complete.
6. Licensee Registration Account. Following the execution of this Agreement
and the payment of the registration fee to DSI, DSI shall open a
Registration Account for Licensee. The opening of the Registration Account
means that DSI shall establish an account ledger in the name of the
Licensee and that Licensee shall receive renewal notices as provided in
Section 8. Unless and until Licensor makes an Initial Deposit of Materials
with DSI, DSI shall have no obligation to Licensee except as defined by
this Section.
7. Deposit Obligations of Confidentiality. DSI agrees to establish a secure
receptacle in which it shall place the Deposit and shall put the
receptacle under the control of one or more of its officers, selected by
DSI, whose identity shall be available to Licensor and Licensee at a
times. DSI shall exercise a professional level of care in carrying out the
terms of this Agreement.
DSI acknowledges Licensor's assertion that the Deposit shall contain
proprietary data of Licensor and that DSI has an obligation to preserve
and protect that confidentiality.
8. Term of Agreement. This Agreement will have a term coterminous with the
term of the agreement between Licensor and Licensee but shall survive such
term in the event said agreement is canceled for the default of Licensor
and until the Deposit is delivered to Licensee as provided for in Section
11, below. In the event that the annual fees are not received when due,
DSI shall so notify Licensor and Licensee. If the annual fees are not
received within thirty (30) days thereafter, this Agreement will expire
without further notice. Licensee has the right to pay annual fees and
other related fees.
9. Expiry. Upon termination of this Agreement as provided in Section 8 above,
all duties and obligations of DSI to Licensor and Licensee will terminate,
except as provided herein. If this Agreement terminates and the Deposit
has not been released to Licensee and Licensor requests the return of the
deposit, DSI shall return the Deposit to Licensor only after all
outstanding invoices and the deposit return fees are paid. If the fee(s)
are not received by the anniversary date of the Agreement, DSI shall, at
its option, destroy or return the Deposit to Licensor.
10. Filing For Release of Deposit by Licensee. Upon notice to DSI by Licensee
of the occurrence of a release condition as defined in Section 11, and
payment of the filing for release fee, DSI shall release the Deposit to
Licensee and shall notify Licensor by certified mail with a copy of the
notice from the Licensee.
11. Release of Deposit to Licensee. Release conditions are:
a. Permanent
1. Failure of the Licensor to pay required escrow fee;
2. Failure of the Licensor to maintain materials with the escrow
agent;
<PAGE>
3. Failure of the Licensor to continue to do business in the
ordinary course;
4. Licensor's failure to carry out maintenance or Support
obligations imposed on it pursuant to the license agreement or
other agreement between Licensor and Licensee; 5. Cancellation
of the agreement between Licensor and Licensee for the default
of Licensor, or
b. Temporary
Temporary releases as permitted by the provisions of the agreement
between, Licensor and Licensee.
DSI is authorized to release the Deposit to the Licensee filing for release
following receipt of Licensee's notice and request therefore.
12. Conditions for Use Following Release. Following a release as provided in
Section 11, Licensee shall have in addition to any rights specified in the
license or other agreement(s) between Licensor and Licensee, the
non-exclusive right to use the released material and technology for the
purpose of continuing the benefits afforded to Licensee by the license or
other agreement(s) between Licensor and Licensee, unless otherwise
specified in such license or other agreement(s). Additionally, Licensee
shall be required to maintain the confidentiality of the released material
and technology.
13. Notice. Notice to Licensor, Licensee and DSI should be sent to the parties
as identified in the Attached Exhibit A.
14. Indemnification. Licensor and Licensee agree to defend and indemnify DSI
and hold DSI harmless from and against all claims, actions and suits,
whether in contract or in tort, and from and against any and all
liabilities, losses, damages, costs, charges, counsel fees, and other
expenses of any nature (including, without limitation, settlement costs)
incurred by DSI as a result of performance of this Agreement, except in
the event of a judgment which specified that DSI failed to act or acted
with gross negligence or willful misconduct.
15. Audit Rights. DSI agrees to keep records of the activities undertaken and
materials prepared pursuant to this Agreement. Licensor and Licensee will
be entitled at reasonable times, during normal business hours and upon
reasonable notice to DSI, during the term of this Agreement to inspect the
records of DSI with respect to this Agreement.
Licensor or Licensee will be entitled, upon reasonable notice to DSI and
during normal business hours, at the facilities designated by DSI,
accompanied by a designated employee of DSI, to inspect the physical
status and condition of the Deposit. The Deposit may not be changed by
Licensor or Licensee during the audit.
16. General. DSI may act in reliance upon any written instruction, instrument,
or signature believed to be genuine and may assume that any person giving
any written notice, request, advice or instruction in connection with or
relating to this Agreement has been duly authorized to do so, provided,
however, DSI may only release the Deposit if it receives a statement
signed by an officer of Unisys stating his or her belief that based on
information in his or her possession, release is justified. DSI is not
responsible for failure to fulfill its obligations under this Agreement
due to causes beyond its control.
This Agreement is to be governed by, and construed in accordance with the
laws of the State of California.
This Agreement, including the Exhibits and Addenda hereto, constitutes the
entire Agreement between the parties concerning the subject matter hereof,
and will supersede all previous communications, representation,
understandings, and agreements, either oral or written, between the
parties.
If any provision of this Agreement is held by any court to be invalid or
unenforceable, that provision will be severed from this Agreement and any
remaining provisions will continue in full force.
17. Fees. All service fees will be due in full at the time of the request for
service. Renewal fees will be due in full upon the receipt of invoice
unless otherwise specified by the invoice. For the purpose of annual
renewal fees the effective date of this Agreement will be the anniversary
date. Invoiced fees must be paid within sixty (60) days of
<PAGE>
receipt of invoice or DSI may terminate this Agreement. If payment is not
timely received by DSI, DSI shall have the right to accrue and collect
interest at the rate of one and one-half percent per month (18% per annum)
from the date of invoice for all late payments.
All service fees and annual renewal fees will be those specified in DSI's
Schedule of Fees in effect at the time of renewal, or request for service,
except as otherwise agreed. For any increase in DSI's standard fees, DSI
shall notify Licensor and Licensee at least ninety (90) days prior to any
renewal of this Agreement. For any service not listed on the Schedule of
Fees, DSI shall provide a quote prior to rendering such service.
18. Verification Rights. If requested by this Licensee, Licensor grants to DSI
the right to verify the Deposit for accuracy, completeness and
sufficiency. Licensor hereby also permits DSI to verify, audit, and
inspect the proprietary materials to be held or held in deposit to confirm
the quality of the proprietary materials for the benefit of the Licensee.
Upon request by Licensor, DSI will issue a copy of the verification
results to Licensor.
Licensor hereby grants DSI the right to use the facilities of Licensor,
free of charge to DSI, including its computer systems. Licensor agrees to
make available any technical and support personnel necessary for DSI to
perform verification of the deposit.
Licensor hereby grants DSI the permission to release to Licensee
information pertaining to directory lists and/or table of contents of
computer media, manuals, schematics, and manufacturing documents. Licensor
grants to DSI the permission to release to Licensee copies of any
executables or object code modules prepared by DSI during its "Load and
Compile" validation level for the purposes of determining the content and
quality of the Deposit.
If requested by Licensee, Licensor agrees to permit one employee of
Licensee to be present at Licensor's facility and to observe the
compilation or verification of the material to be deposited by Licensor.
19. Certification by Licensor. Licensor represents and warrants to Licensee
that the Deposit materials are all of the Escrow Materials to be deposited
by Licensor pursuant to the Agreement between the Parties. A description
of such materials is contained in the various Exhibit B(s).
20. Transfer of Copy Title. Licensor hereby transfers to DSI all rights in the
title to all copies of the Deposit deposited hereunder with DSI, provided
that DSI shall hold such Deposit and rights pursuant to the provisions of
this Agreement. DSI agrees to accept the transfer of rights thereto in
strict accordance with this Agreement.
DSI may duplicate the Deposit only as necessary to preserve and safely
store the Deposit, and to provide copies thereof, as authorized herein, to
Licensee. DSI shall reproduce on all copies of the Deposit made by DSI any
proprietary or confidentiality notices contained in the Deposit originally
deposited with it by Licensor.
Except as provided in this Agreement, DSI agrees that it shall not
divulge, disclose, otherwise make available to third parties, or make any
use whatsoever of the Deposit, or of any information provided to it by
Licensor in connection with this Agreement, without the express prior
written consent of Licensor. This obligation will continue indefinitely
notwithstanding termination of this Agreement.
In the event that a copy of any Deposit is delivered to Licensee pursuant
to this Agreement, Licensee shall have all rights relative thereto which
are applicable under the terms of the license agreement or other agreement
regarding the use of the deposit between Licensor and Licensee.
Data Securities International, Inc.
--------------------- -------------------
Licensor Licensee
By: By: By:
--------------------- ----------------------- -------------------------
Name: Name: Name:
------------------- -------------------- ---------------------
Title: Title: Title:
------------------- ------------------- -----------------------
Date: Date: Date:
------------------- -------------------- ---------------------
<PAGE>
Date: Date: Date:
------------------- -------------------- ---------------------
<PAGE>
EXHIBIT A
DESIGNATED CONTACT
Account Number 0914363-00001-2114013
Notices, deposit material returns and
communications to Depositor Invoices to Depositor should be
should be addressed to: addressed to:
Company Name: InfoActive, Inc.
Address: 202 Union Warf
Boston., Ma 02109
Designated Contact: Samuel Cannavo Contact:
Telephone: 617-557-9130
Facsimile:
Notices and communications to Invoices to Preferred Beneficiary
Preferred Beneficiary should be addressed to: should be addressed to:
Company Name: Unisys Corporation
Address: PO Box 500
Township Line & Union Meeting
Road
Blue Bell, PA 19424
Designated Contact: Richard Saveriano Contact
Telephone: - 215-986-4375
Facsimile:
Requests from Depositor or Preferred Beneficiary to change the designated
contact should be given in writing by the designated contact or an authorized
employee of Depositor or Preferred Beneficiary.
Contracts, deposit materials and Invoice inquiries and fee
notices to Invoice inquiries and fee remittances to DSI should be
DSI should be addressed to: addressed to:
DSI DSI
Contract Administration Accounts Receivable
Suite 200 Suite 1450
9555 Chesapeake Drive 425 California Street
San Diego, CA 92123 San Francisco, CA 94104
Telephone: (619) 694-1900 (415) 398-7900
Facsimile: (619) 694-1919 (415) 398-7914
Date:
----------------------------
