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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 10-K/A-2
FOR ANNUAL AND TRANSITION REPORTS PURSUANT TO
SECTIONS 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934 [FEE REQUIRED]
For the fiscal year ended June 30, 1996
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OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 [NO FEE REQUIRED]
For the transition period from to
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Commission File No. 0-17118
Mark Solutions, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 112864481
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(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
Parkway Technical Center
1515 Broad Street, Bloomfield, New Jersey 07607
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (201) 893-0500
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Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
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NONE
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Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $ .01 par value
Class A Common Stock Purchase Warrants
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(Title of class)
[Cover Page 1 of 2 Pages]
Indicate by check mark whether the Registrant: (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No.
--- ---
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Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of Registrant's knowledge, in definitive proxy or other information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ].
The aggregate market value of the 10,645,297 shares of Common Stock
held by non-affiliates of the Registrant on September 24, 1996 was $ 61,210,457
based on the closing sales price of $ 5-3/4 on September 24, 1996.
The number of shares of Common Stock outstanding as of September 24,
1996 was 13,472,463.
DOCUMENTS INCORPORATED BY REFERENCE
None
[Cover Page 2 of 2 Pages]
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Mark Solutions, Inc. ("Mark") hereby amends its Form 10-K for the year ended
June 30, 1996 filed on September 27, 1997 to file as follows:
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K.
The following Exhibit 10 e) is filed in this Form 10-K/A-2
10 e) -- Agreement between Data General Corporation and Mark dated
March 18, 1996 as amended on January 30, 1997.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
MARK SOLUTIONS, INC.
May 7, 1997 By: /s/ Carl Coppola
--------------------------
(Carl Coppola, Chief
Executive Officer and
President)
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EXHIBIT 10 e)
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Master Supplier Agreement
EFFECTIVE DATE: March 18, 1996
Mark Solutions, Inc. ("SUPPLIER"), a Delaware corporation with a principal
business office at 1515 Broad Street, Bloomfield, NJ 07003, and Data General
Corporation ("DGC"), a Delaware corporation with a principal business office at
4400 Computer Drive, Westboro, MA 01580, enter into this Master Supplier
Agreement ("MSA") as of the EFFECTIVE DATE stated above.
BUSINESS BACKGROUND AND OBJECTIVES
In order to enhance DGC's ability to compete in those customer opportunities
that may require items and/or services available from SUPPLIER, DGC and SUPPLIER
have decided to:
Use this MSA to establish the general terms and conditions that govern their
relationship, and
Use separately executed attachments to identify the specific items and/or
services, pricing, and other matters that pertain to a particular project for
the DGC customer identified on the attachment;
Accordingly, SUPPLIER and DGC agree as follows:
A G R E E M E N T
1. DEFINITIONS
A. "CONSULTING SERVICES" - means those services, if any,
identified as such in the applicable PROJECT ATTACHMENT.
B. "CUSTOMER" - means the company or other entity identified as
such in the applicable PROJECT ATTACHMENT.
C. "CUSTOMER CONTRACT" - means the contract between DGC and a
specific DGC customer that relates to the provisions set forth
in the applicable PROJECT ATTACHMENT.
D. "PROJECT ATTACHMENT" - means each document, identified as such
and executed by SUPPLIER and DGC, which incorporates this MSA
by reference and contains the description, pricing and other
specific terms and conditions applicable to items and/or
services to be provided by SUPPLIER for a specific project.
E. "PROJECT MANAGER" - means the individual, if any, identified
as such for each party in a PROJECT ATTACHMENT, that serves as
the primary point of contact with regard to the activities
described in the PROJECT ATTACHMENT. Either party may replace
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its PROJECT MANAGER upon written notice to the other party.
F. "LICENSED PROGRAM" - means, for each item, if any, identified
as such in the applicable PROJECT ATTACHMENT, i) the latest
release, available as of the effective date of such PROJECT
ATTACHMENT, of the machine-readable object code and all
related documentation normally supplied therewith, and ii) all
changes thereto and subsequent releases thereof which SUPPLIER
is obligated to provide under such PROJECT ATTACHMENT.
G. "SUPPORT SERVICES" - means those services, if any, identified
as such in the applicable PROJECT ATTACHMENT.
H. "SOURCE CODE" means i) all or any identifiable portion of the
source materials, in human or machine-readable form, from
which the related object code is compiled or assembled, which
source materials include, but are not limited to, annotated
listings, flow charts, conversion tools, supporting
documentation, and all other aids and information needed for
support or modification thereof, and ii) the documentation for
such object code in a camera-ready, hard copy master and
mutually acceptable electronic format.
2. SCOPE, ORDERS AND PAYMENT
A. General - This MSA sets forth the general provisions under
which SUPPLIER shall make available to DGC the items and/or
services described in the applicable PROJECT ATTACHMENT, to
enable DGC to bid to, and in the event of award, perform for
CUSTOMER. In case of a conflict between a provision(s) of the
MSA and that of a specific PROJECT ATTACHMENT, the latter
shall control with regard to such PROJECT ATTACHMENT.
B. List of Exhibits - The following lists the Exhibits that are
incorporated into and made a part of this MSA:
1) Exhibit 1 - Mutual Nondisclosure Provisions
2) Exhibit 2 - CONSULTING SERVICES Provisions
3) Exhibit 3 - Licensing Provisions
4) Exhibit 4 - LICENSED PROGRAM Support Provisions
C. Implementation of Purchase Orders - DGC may obtain the items
and/or services listed in a PROJECT ATTACHMENT by sending
SUPPLIER a purchase order referencing the PROJECT ATTACHMENT.
Each purchase order shall be governed solely by the terms and
conditions of the applicable PROJECT ATTACHMENT. As long as
DGC is in material compliance with such PROJECT ATTACHMENT,
SUPPLIER shall not reject any related purchase order.
D. Fees, Invoices and Payment
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1) The fees for the various products and/or services
being provided by SUPPLIER to DGC under a PROJECT
ATTACHMENT are the sole and exclusive compensation
due SUPPLIER from DGC with regard to such PROJECT
ATTACHMENT. In no event shall such fees be less
favorable than those offered or quoted by SUPPLIER,
for similar quantities under similar terms and
conditions, to the most favored of SUPPLIER's other
customers competing with DGC on the same CUSTOMER
project.
2) SUPPLIER shall not send an invoice to DGC prior to
SUPPLIER's shipment of the applicable products or
fulfillment of the applicable services. Each invoice
shall reference the applicable PROJECT ATTACHMENT and
DGC purchase order number and shall be sent to the
address on the applicable PROJECT ATTACHMENT.
3) DGC shall send payment to SUPPLIER for all correct
invoices for products and/or services listed on the
applicable PROJECT ATTACHMENT within thirty (30) to
forty-five (45) calendar days after DGC's receipt of
such invoice. In case of a bona fide dispute, DGC
shall notify SUPPLIER as soon as is reasonably
possible.
E. Taxes - In addition to the fees for items and/or services in
the applicable PROJECT ATTACHMENT, DGC is responsible for all
related taxes, exclusive of those based on SUPPLIER's net
income or those from which DGC is exempt, as evidenced by DGC
supplying SUPPLIER with a valid tax exemption number.
F. Expenses - Except as agreed in the applicable PROJECT
ATTACHMENT, neither party shall seek reimbursement from the
other for expenses or costs incurred in performing. For all
travel related expenses, other than those covered by a fixed
price in the applicable PROJECT ATTACHMENT, SUPPLIER shall:
1) obtain the written approval of DGC before incurring
any travel expenses; and
2) attempt, when practical, to book travel through DGC's
Corporate Travel Services at 1-800-343-5880; and
3) submit to DGC a report for DGC approved travel within
thirty (30) calendar days after completion of the
trip, and provide a pre-printed receipt, with
appropriate descriptive information, for any single
expenditure over twenty-five dollars ($25.00); and
4) be reimbursed for approved travel only in accordance
with the same expense reimbursement policies as apply
to DGC's own employees, a copy of which shall be
provided upon SUPPLIER's request.
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G. PROJECT MANAGER Responsibilities - The PROJECT MANAGERS,
through their mutual written consent, shall have authority and
be responsible for the following: i) proposing and developing
any modifications to the provisions of the applicable PROJECT
ATTACHMENT, and, subject to the written mutual approval of an
authorized signatory of each party, make mutually acceptable
changes to the obligations of the PROJECT ATTACHMENT, provided
such changes clearly indicate any changes to the current
payment stream and any impact on future deliveries; ii)
submitting and receiving any items and documents required to
be delivered; iii) maintaining, for record keeping purposes, a
log summarizing all material communications and deliveries
between the PROJECT MANAGERS; iv) implementing appropriate
practices and procedures to address the security and
confidentiality of items delivered and information exchanged;
and v) such other responsibilities as the parties shall
mutually agree in writing. Unless specifically identified as
such, the PROJECT MANAGERS are not authorized signatories for
of their respective companies.
3. TERM AND TERMINATION
A. Duration - This MSA commences on the EFFECTIVE DATE and shall
govern each PROJECT ATTACHMENT. The duration of each PROJECT
ATTACHMENT shall be as specified therein. Unless identified as
a "calendar day", the term "day(s)" refers to a business
day(s), i.e. Monday through Friday, excluding legal holidays.
B. Termination/Cancellation - Each party shall notify the other
in writing in case of the other's alleged violation of a
material provision of this MSA or the applicable PROJECT
ATTACHMENT. The recipient of such notice shall have, except to
the extent specifically provided otherwise in the applicable
PROJECT ATTACHMENT, thirty (30) calendar days from the date of
receipt of such notice to effect a cure (the "CURE PERIOD").
If the recipient of such notice fails to effect such cure
within the CURE PERIOD, then the sender of such notice shall
have the option of sending a written notice of cancellation,
which notice shall take effect upon receipt, and such sender
shall thereafter have such remedies as are provided provided
at law, in this MSA and the applicable PROJECT ATTACHMENT.
C. Survivorship - Any provision of this MSA and a PROJECT
ATTACHMENT that by its very nature or context is intended to
survive any termination, cancellation or expiration thereof,
including but not limited to provisions relating to disclosure
of certain information, the payment of outstanding fees and
taxes, and indemnities, shall so survive.
D. General Access to SOURCE CODE - The parties recognize that
DGC's reputation and customer goodwill are involved in DGC's
marketing of SUPPLIER's products and services and that DGC has
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a legitimate interest in the protection thereof. In lieu of
establishing an escrow of the SOURCE CODE, SUPPLIER grants to
DGC on a nonexclusive, nontransferable, and fee-free basis,
for the entire period that SUPPLIER has obligated itself to
provide products and/or related support to DGC in connection
with a specific CUSTOMER, the present right and license to use
such SOURCE CODE to the extent reasonably necessary for DGC to
i) use and market such product in accordance with the
applicable PROJECT ATTACHMENT, and ii) provide support and
maintenance in substantially the same manner as required of
SUPPLIER under the applicable PROJECT ATTACHMENT. However,
SUPPLIER and/or SUPPLIER's successor in interest shall have
the obligation to provide, and DGC shall be entitled to
receive and utilize such SOURCE CODE within the scope of such
license, only in the event that DGC cancels the applicable
PROJECT ATTACHMENT due to SUPPLIER's failure to comply with a
material provision thereof. Promptly after such cancellation,
SUPPLIER and/or SUPPLIER's successor in interest, shall send
to DGC a copy of such SOURCE CODE and shall not interfere with
DGC's exercise of DGC's rights as set forth herein. After such
cancellation, DGC shall have no further obligation to pay any
other charges that are in any way related thereto. In
addition, SUPPLIER shall reasonably cooperate with DGC and
negotiate in good faith in the event that DGC requests
authorization to place SOURCE CODE in escrow in order to
fulfill a potential CUSTOMER's requirement for such action.
4. WARRANTIES
A. Each party warrants to the other that it has i) all rights
necessary to fulfill its obligations under this MSA and each
PROJECT ATTACHMENT, and ii) no knowledge of any adverse claims
against such rights.
B. EXCEPT AS EXPRESSLY STATED IN THIS MSA OR THE APPLICABLE
PROJECT ATTACHMENT, SUPPLIER DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE,
WITH RESPECT TO ITEMS AND/OR SERVICES SUPPLIED HEREUNDER,
INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR PURPOSE.
5. INDEMNITY
A. Proprietary Interests - SUPPLIER shall, at its expense, defend
any suit against DGC and/or CUSTOMER to the extent based on a
claim that any item and/or service provided by SUPPLIER
infringes a patent, trademark or copyright, or misappropriates
a trade secret, and shall, notwithstanding any limitations on
or exclusions from liability for damages set forth in this
MSA, pay all damages awarded by a court of final appeal
attributable to such claim, provided that the entity seeking
indemnification provides SUPPLIER with i) prompt written
notice of such claim, ii) sole control over the related
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defense and/or settlement (although retaining the right to be
represented by its own counsel if it elects, at its own
expense), and iii) reasonable cooperation and assistance with
regard to such claim. In addition, should such item and/or
service become, or in SUPPLIER's opinion be likely to become,
the subject of such a claim, SUPPLIER shall, at its expense,
use good faith and reasonable efforts to a) procure the right
for DGC and/or CUSTOMER to continue use thereof, or b) replace
or modify such so that it no longer so infringes or so
misappropriates, but only if such replacement or modification
does not materially and adversely affect the specifications or
use, or c) if neither a) nor b) above are accomplished within
a reasonable period of time, SUPPLIER shall accept return of
such and grant DGC a full refund of the fee paid by DGC to
SUPPLIER, less straight line depreciation, on a pro-rata
basis, using a seven (7) year useful life. The above indemnity
shall not apply to any such claim based on a modification of
an item or service by other than SUPPLIER or the combination,
operation or use of such item or service with items not
furnished by SUPPLIER, if such claim would have been avoided
in the absence of such modification or combination, operation
or use with items not furnished by SUPPLIER. This subsection
states SUPPLIER's entire obligation for claims of infringement
and/or misappropriation relating to items and/or services
provided by SUPPLIER under this MSA and/or a PROJECT
ATTACHMENT.
B. Insurance - SUPPLIER shall maintain throughout the term of the
applicable PROJECT ATTACHMENT the following minimum coverages,
and, upon request of DGC, promptly provide evidence thereof:
1) Workers Compensation - As per the Statutory
Requirements for the state in which services are
performed,
2) Employer's Liability - $100,000/occurrence,
3) Comprehensive General Liability -
$2,000,000/occurrence.
6. LIMITATION OF LIABILITY
EXCEPT TO THE EXTENT STATED OTHERWISE IN THE SECTION ENTITLED "INDEMNITY",
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL,
INDIRECT OR SPECIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST
PROFITS AND DAMAGES RESULTING FROM LOSS OF USE OR LOST DATA, ARISING FROM ANY
CAUSE OR CONNECTED IN ANY WAY WITH THIS MSA AND/OR THE APPLICABLE PROJECT
ATTACHMENT, EVEN IF THE POSSIBILITY THEREOF IS KNOWN OR SHOULD HAVE BEEN KNOWN.
ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF OR INCIDENTAL TO THE TRANSACTIONS
UNDER THIS MSA OR THE APPLICABLE PROJECT ATTACHMENT, MUST BE BROUGHT WITHIN ONE
(1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.
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7. MISCELLANEOUS
A. This MSA, including each PROJECT ATTACHMENT, shall be
construed in accordance with and governed by the laws of the
Commonwealth of Massachusetts, excluding its conflict of law
rules.
B. Neither party shall assign any right or interest under this
MSA and/or a PROJECT ATTACHMENT (excepting monies due or to
become due) nor delegate any work or other obligation to be
performed hereunder to any entity other than i) its corporate
parent, ii) a division or wholly or majority owned subsidiary
of the party or its corporate parent, iii) the purchaser of
all or substantially all of such party's assets, or iv) a
third party subcontractor that is fully qualified to perform
the applicable task(s) and has executed a nondisclosure
contract that is no less restrictive than that attached to
this MSA, without the prior written consent of an authorized
representative of the other, which consent shall not be
unreasonably withheld.
C. Failure to insist in any instance upon strict performance by
the other of any provision of this MSA and/or PROJECT
ATTACHMENT shall not be construed or deemed to be a permanent
waiver of such or any other provision.
D. With the exception of quotes, purchase orders,
acknowledgements, invoices and other usual and routine
communications, all other notices or writings required or
permitted under this MSA and/or a PROJECT ATTACHMENT,
including but not limited to notices of default or breach,
shall be signed by an authorized representative of the sender,
sent to the respective individuals identified on the
applicable PROJECT ATTACHMENT and as set forth below (which
may be changed by written notice to the other), and shall be
deemed to have been received i) when hand delivered to such
individuals by a representative of the sender, or ii) three
(3) days after having been sent postage prepaid, by registered
or certified first class mail, return receipt requested, or
iii) when sent by electronic transmission, with written
confirmation by the method of transmission, or iv) one (1) day
after deposit with an overnite carrier, with written
verification of delivery, .
For DGC For SUPPLIER
Data General Corporation To the address stated above,
4400 Computer Drive Attn: Leo Futerman,
Westboro, MA 01580 VP. Product Development
Attn: Vice President - Systems Integration
cc: Office of the General Counsel
E. Headings used in this MSA and/or PROJECT ATTACHMENT are for
reference purposes only and are not a part thereof.
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F. A party shall be excused for delays in the performance of its
obligations hereunder due to causes beyond its reasonable
control and which could not have been avoided through the
exercise of reasonable care, such as acts of God, acts or
omissions of civil or military authorities, fires, floods,
epidemics, quarantine restrictions, war, riots, strikes, or
the unavailability of necessary labor, materials, or
manufacturing facilities (the "Force Majeure"). The party
whose performance is being adversely affected shall promptly
notify the other of the nature of the Force Majeure and the
obligations which will be adversely affected thereby. Such
party shall thereafter make all reasonable efforts to resume
performance as soon as is reasonably possible and to mitigate
the adverse effects of the Force Majeure. However, if the
Force Majeure causes a delay of ninety (90) or more days from
the original date of performance, the other party shall have
the right to terminate.
G. SUPPLIER hereby acknowledges notice of requirements for
certification of nonsegregated facilities. Unless exempt from
Executive Order 11246 concerning equal employment
opportunities, SUPPLIER shall not maintain any segregated
facilities at any of its establishments and shall complete a
certification to the effect required by the May 7, 1967 Order
of the Secretary of Labor of the United States. The following
applicable Federal Acquisition Regulations ("FAR") are
incorporated herein by reference, and, unless SUPPLIER is
exempt from the application thereof, shall apply to SUPPLIER's
performance under this MSA: Utilization of Small Business
Concerns and Small Disadvantaged Business Concerns
(52.219-08), Utilization of Women-Owned Small Businesses
(52.219-13) and, if orders under this MSA exceed $500,000,
Subcontracting Plan (52.219-09). SUPPLIER shall, within thirty
(30) calendar days of request of DGC, furnish DGC with
appropriate certifications of compliance therewith.
H. Each party may publicly disclose the existence of the MSA and,
after the mutual execution of the applicable PROJECT
ATTACHMENT, the fact that the party is involved in a specific
project, but each party shall use the same standard of care as
it normally uses to protect its own sensitive information from
disclosure, to protect from disclosure to any third party, for
a period of ten (10) years after the commencement of the
applicable PROJECT ATTACHMENT, the specific details, including
but not limited to pricing and payment terms. The parties
acknowledge that from time to time, DGC will provide SUPPLIER
with the identity of a potential CUSTOMER and a description of
a specific project with such account (collectively called
"ACCOUNT INFORMATION"). It is agreed that ACCOUNT INFORMATION
is of significant value and shall be treated as RESTRICTED
INFORMATION, as defined in the Mutual Nondisclosure Provisions
in Exhibit 1, even if not specifically identified as such by
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DGC and even if not reduced to writing.
Unless SUPPLIER can reasonably demonstrate that it also became
aware of such account and project by a means independent of
and unrelated to DGC's disclosure, then SUPPLIER agrees that
if, within one (1) year after its first receipt of the
applicable ACCOUNT INFORMATION, it enters into an agreement,
with other than DGC, to provide products and/or services to
that same account for such project, SUPPLIER shall compensate
DGC in the amount of forty (40%) of the gross revenue SUPPLIER
receives under any such agreement.
I. The parties are independent contractors and nothing herein
shall be construed as forming a joint venture between them or
as constituting either party as agent for the other.
J. If any provision of this MSA and/or a PROJECT ATTACHMENT is
held to be unenforceable for any reason, then such shall be
deemed adjusted to conform to the applicable requirements, to
the extent possible, and the adjusted provision, if any, shall
have the same effect as if originally included herein. In any
event, the other provisions shall remain in effect.
K. DGC and SUPPLIER agree that each company's employees are
highly important to the success of each company, and that each
company reasonably expects to retain its employees free from
the other's interference. During the period that begins when a
party has its first contact with an employee of the other
concerning this MSA or any related project, and expires one
(1) year after such party's last contact with such employee
concerning this MSA or any related project, such party shall
not, without the express written permission of the other,
recruit or actually hire, as an employee or an independent
contractor, such employee of the other. DGC and SUPPLIER agree
that any breach of this provision would result in injury to
the nonbreaching party that would be difficult or impossible
to estimate. Therefore, in the event of such a breach, and as
the sole and exclusive remedy therefor, the breaching party
shall promptly pay to the other a sum equal to six (6) times
the gross monthly salary most recently being paid by the
nonbreaching party to the affected employee, such sum to be
paid as liquidated damages and not as a penalty. For purposes
of this paragraph only, the terms "DGC" and "SUPPLIER",
respectively, include such party, together with all other
entities controlling, controlled by or under common control
with such party.
L. This MSA, including its attached Exhibits, and the applicable
PROJECT ATTACHMENT, are the complete and exclusive statement
of the contract between the parties with regard to the subject
matter set forth therein and supersede all prior oral
communications, written communications, proposals, agreements,
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representations, statements, negotiations and undertakings
between the parties with respect to such subject matter. Any
amendments or alterations hereof must be made in writing and
executed by an authorized representative of each party. This
MSA and/or any PROJECT ATTACHMENT or any amendments or
modifications thereto may be transmitted by facsimile machine
between the parties. A faxed signature shall be deemed to be
an original signature. A faxed MSA or PROJECT ATTACHMENT,
containing an original and/or faxed signature of both parties
shall be binding on both parties.
ACCORDINGLY, the respective representative of each party, being duly authorized,
has caused this MSA to be executed and to become effective as of the EFFECTIVE
DATE.
Mark Solutions, Inc. Data General Corporation
(SUPPLIER) (DGC)
By: /s/ Carl Coppola By: /s/ Michael S. Worhach
Print Name: Carl Coppola Print Name: Michael S. Worhach
Title: President; CEO Title: V.P. Healthcare Division
<PAGE>
Exhibit 1
MUTUAL NONDISCLOSURE PROVISIONS
This Exhibit 1 is hereby attached to and incorporated into the MSA between DGC
and SUPPLIER and sets forth the nondisclosure provisions applicable to their
relationship.
BUSINESS BACKGROUND AND OBJECTIVES
Based on SUPPLIER's and DGC's common understanding that:
In order to advance their respective interests, SUPPLIER and DGC will
engage in various discussions; and
During such discussions, each party is willing to disclose certain
information provided the recipient agrees to certain restrictions on the use or
further disclosure of such information;
Accordingly, SUPPLIER and DGC agree as follows:
A G R E E M E N T
1. SCOPE - This Exhibit governs all "RESTRICTED INFORMATION", as defined
below, exchanged between the parties in the pursuit and/or performance
of a specific project with a prospective CUSTOMER.
2. RESTRICTED INFORMATION - Except as set forth in the Section entitled
"EXCLUSIONS" below, "RESTRICTED INFORMATION" means:
A. the identity of the prospective CUSTOMER and the description
of the specific project therewith, whether or not reduced to
writing; and
B. all other information exchanged within the SCOPE and prior to
expiration of the applicable PROJECT ATTACHMENT, if any, that:
1) is in written, recorded or other tangible form and
labeled, at the time of initial disclosure, as
"Proprietary", "Confidential" or other similar
legend, or
2) is in oral form and identified by either of the
parties or DGC's customer as "Proprietary" or
"Confidential" at the time of initial disclosure, and
subsequently reduced to written or recorded form,
marked as described in A. 1) above, and sent to the
recipient within seven (7) calendar days after
initial disclosure; and
C. any information of either party or the CUSTOMER which
is viewed or perceived in the performance of
obligations under the applicable PROJECT ATTACHMENT
and which a business person would reasonably believe
to be of a sensitive or confidential nature; and
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D. any software (including related documentation)
provided by DGC or CUSTOMER to SUPPLIER for the
purpose of assisting SUPPLIER in the performance of
its obligations under the applicable PROJECT
ATTACHMENT.
3. EXCLUSIONS - Unless specifically agreed otherwise in the applicable
PROJECT ATTACHMENT, RESTRICTED INFORMATION DOES NOT MEAN i) any
software (including the related documentation) which SUPPLIER
customarily licenses in the ordinary course of its business (which
software, the parties agree shall be provided solely pursuant to
separate licensing provisions), ii) any information exchanged which the
recipient can tangibly demonstrate was in its possession (or of which
it had knowledge), free of restrictions on disclosure or use, or in the
public domain, prior to receipt from the other party, or iii) any
information exchanged with the reasonable knowledge or expectation that
such will be included in communications with the prospective CUSTOMER.
4. DURATION OF NONDISCLOSURE PERIOD
A. Except as provided in subsection B. below, the NONDISCLOSURE
PERIOD for RESTRICTED INFORMATION commences on the date of
initial disclosure and, unless sooner terminated as stated
below, expires five (5) years later.
B. The NONDISCLOSURE PERIOD for RESTRICTED INFORMATION is deemed
to terminate as of the date that such is first i) publicly
disclosed by the disclosing party, ii) rightfully received by
the recipient from a third party without restrictions on
disclosure or use, iii) independently developed by the
recipient, as evidenced by written records prepared at the
time of such development, iv) approved for unrestricted
disclosure by the disclosing party, v) available by inspection
of items or services marketed without restrictions or offered
for sale or lease in the ordinary course of business by either
party or others, or vi) disclosed pursuant to applicable law,
court order or regulation, provided that the disclosing party
is given notice thereof and an opportunity to defend, limit or
protect such disclosure.
C. Either party shall have the right to correct a failure to
identify RESTRICTED INFORMATION by sending written notice and
complying with the applicable provisions of this Exhibit
promptly after discovery of such failure. The NONDISCLOSURE
PERIOD for such RESTRICTED INFORMATION shall be deemed to
commence upon receipt of such notice by recipient, but shall
expire on the same date as if the RESTRICTED INFORMATION had
been correctly identified when first disclosed.
5. RESTRICTIONS ON DISCLOSURE AND USE - During the NONDISCLOSURE PERIOD,
each party shall use the same degree of care with regard to the
protection of the other's RESTRICTED INFORMATION as it uses
<PAGE>
with regard to its own information of a similar nature and sensitivity,
and no less than reasonable care, to i) limit use and disclosure
thereof to only those of its personnel, or those of its subcontractors
and their personnel, that have executed a nondisclosure agreement
containing provisions substantially equivalent to those set forth
herein, that require access to perform functions related to the SCOPE,
ii) not make any other disclosure or use thereof, and iii) return all
tangible RESTRICTED INFORMATION to the disclosing party within ten (10)
days after receipt of a written request therefor.
6. MARKINGS AND LEGENDS - Recipient's obligations concerning use and
disclosure of RESTRICTED INFORMATION are governed solely by the terms
and conditions of this Exhibit and any applicable patent or copyright
law(s). Any restrictive legends placed on RESTRICTED INFORMATION shall
not impose any obligations or restrictions upon the recipient except to
the extent set forth herein. Nothing contained herein shall be
construed as granting or conferring upon the recipient any license
under patents or copyrights of the disclosing party, and no such
license or other rights shall arise from any acts, statements or
dealings resulting from or related to the performance of the
obligations hereunder.
7. GENERAL
A. Nothing contained herein shall be construed as establishing a
confidential relationship between the parties.
B. Each party shall comply with all of the provisions of the
Export Administration Regulations of the United States
Department of Commerce, as they currently exist and as they
may from time to time be amended.
C. SUPPLIER agrees to execute such nondisclosure contracts as may
be reasonably required by the third party owner or operator of
the premises where SUPPLIER will perform any services under
any applicable PROJECT ATTACHMENT, and to require any of
SUPPLIER's subcontractors to do the same.
D. Each party warrants that it has the right to disclose its
RESTRICTED INFORMATION to the other. RESTRICTED INFORMATION IS
PROVIDED i) WITHOUT ANY OTHER WARRANTIES, AND, ii) EXCEPT AS
SET FORTH HEREIN, ON AN "AS IS" BASIS.
<PAGE>
Exhibit 2
CONSULTING SERVICES PROVISIONS
This Exhibit 2 is hereby attached to and incorporated into the MSA
between DGC and SUPPLIER and sets forth the provisions applicable to each
PROJECT ATTACHMENT that provides for CONSULTING SERVICES.
BUSINESS BACKGROUND AND OBJECTIVES
In order for SUPPLIER to fulfill its obligations with regard to the CONSULTING
SERVICES described on the applicable PROJECT ATTACHMENT, DGC and SUPPLIER
recognize that SUPPLIER may need to:
Use information provided by from DGC and/or CUSTOMER, and/or
Use information already in SUPPLIER's possession, and/or
Develop new information.
Accordingly, SUPPLIER and DGC agree that the following governs their respective
rights in the information described above:
A G R E E M E N T
1. DEFINITIONS
A. "DGC/CUSTOMER INFORMATION" - means i) any software, data,
documentation and/or other information provided by DGC and/or
CUSTOMER to SUPPLIER to assist SUPPLIER in fulfilling its
CONSULTING SERVICES obligations in the applicable PROJECT
ATTACHMENT, and ii) any DERIVATIVE WORK prepared therefrom.
B. "DERIVATIVE WORK" - means any enhanced or modified version of
all or any portion of SUPPLIER INFORMATION or DGC/CUSTOMER
INFORMATION which if prepared or used without the
authorization of the copyright holder of the underlying work
would constitute a copyright infringement or misappropriation
of a trade secret.
C. "NEW WORK" - means only that software, documentation, data
and/or other information first developed or prepared by or for
SUPPLIER and delivered by SUPPLIER in fulfillment of its
CONSULTING SERVICES obligations in the applicable PROJECT
ATTACHMENT, but does not include SUPPLIER INFORMATION or
DGC/CUSTOMER INFORMATION.
D. "SUPPLIER INFORMATION" - means any software, documentation,
data and/or other information (including any DERIVATIVE WORK
prepared therefrom by SUPPLIER) which, i) as of the effective
date of the applicable PROJECT ATTACHMENT, is either owned by
SUPPLIER or a third party other than DGC or CUSTOMER, and ii)
is delivered by SUPPLIER in fulfillment of its CONSULTING
<PAGE>
SERVICES obligations in the applicable PROJECT ATTACHMENT, but
does not include any software or documentation which the
parties identify on the applicable PROJECT ATTACHMENT as being
licensed to DGC under provisions other than those set forth in
this specific Exhibit.
E. "FIXED DELIVERABLE BASIS" - refers to those CONSULTING
SERVICES, usually consisting of a defined task(s) and/or
deliverable(s), for which SUPPLIER, in exchange for its
successful completion thereof, is to be paid a firm, fixed
amount, exclusive of travel and expense reimbursement, even if
the actual amount of time or effort expended by SUPPLIER
differs from the estimate that served as the basis for
establishing the fixed amount.
F. "LABOR RATE BASIS" - refers to those CONSULTING SERVICES,
usually described as providing expertise and/or assistance for
a particular effort, for which SUPPLIER, in exchange for its
good faith efforts, is to be paid (subject to any minimum or
maximum established in the PROJECT ATTACHMENT) an amount,
exclusive of travel and expense reimbursement, based on the
actual number of hours of labor (or other specified unit of
measure) multiplied by a rate of payment per hour (or other
specified unit of measure).
2. REPRESENTATIONS
A. By DGC - In the event a claim of infringement or
misappropriation of intellectual property rights is made
against SUPPLIER with regard to DGC/CUSTOMER INFORMATION, DGC
will defend and indemnify SUPPLIER in the same manner and to
the same extent that SUPPLIER is required to indemnify DGC or
CUSTOMER under the Section entitled "INDEMNITY" in the MSA.
DGC shall treat and protect SUPPLIER INFORMATION with the same
degree of care as used by DGC with regard to its own
information of a similar nature and importance, and no less
than reasonable care.
B. By SUPPLIER - SUPPLIER represents to DGC that all SUPPLIER
INFORMATION and NEW WORK is either the original work of
SUPPLIER or that SUPPLIER has all rights therein that are
necessary to fulfill its obligations under the applicable
PROJECT ATTACHMENT. In the event a claim of infringement or
misappropriation of intellectual property rights is made
against DGC and/or CUSTOMER with regard to SUPPLIER
INFORMATION and/or NEW WORK, SUPPLIER will indemnify DGC
and/or CUSTOMER in the same manner and to the same extent that
SUPPLIER is required to indemnify DGC and/or CUSTOMER under
the Section entitled "INDEMNITY" in the MSA.
<PAGE>
3. ALLOCATION OF RIGHTS
A. Rights in SUPPLIER INFORMATION - Unless otherwise agreed in
the applicable PROJECT ATTACHMENT:
1) Nothing in this Exhibit or the MSA shall serve to
transfer SUPPLIER's ownership or manufacturing rights
in, or limit its right to use or market, SUPPLIER
INFORMATION (including all designs, engineering
details and other data pertaining thereto), and
2) SUPPLIER hereby grants DGC an irrevocable (except for
material breach by DGC of SUPPLIER's intellectual
property or proprietary rights in SUPPLIER
INFORMATION), world-wide, nonexclusive right, at no
charge in addition to the CONSULTING SERVICES Fee set
forth in the applicable PROJECT ATTACHMENT, to
generally use SUPPLIER INFORMATION solely in
connection with DGC's performance of its obligations
to the CUSTOMER and to license and/or provide
SUPPLIER INFORMATION solely to such CUSTOMER under
the same terms and conditions as used by DGC to
provide such CUSTOMER with DGC's own information of a
similar nature.
B. Rights in DGC/CUSTOMER INFORMATION - Unless otherwise agreed
in the applicable PROJECT ATTACHMENT, nothing in this Exhibit
or the MSA shall serve to transfer DGC's or CUSTOMER's
ownership or manufacturing rights in, or limit its right to
use or market, DGC/CUSTOMER INFORMATION (including all
designs, engineering details and other data pertaining
thereto). SUPPLIER is hereby granted the limited,
nontransferable right to use DGC/CUSTOMER INFORMATION only for
purposes directly related to fulfillment of SUPPLIER's
obligations under the applicable PROJECT ATTACHMENT. No other
rights are granted to SUPPLIER with regard thereto, and
SUPPLIER shall make no other use thereof. SUPPLIER shall treat
and protect DGC/CUSTOMER INFORMATION with the same degree of
care as used by SUPPLIER with regard to its own information of
a similar nature and importance, and no less than reasonable
care. Unless otherwise agreed in the applicable PROJECT
ATTACHMENT, upon request, SUPPLIER shall promptly return
DGC/CUSTOMER INFORMATION to DGC and/or CUSTOMER, respectively.
C. Rights in NEW WORK - NEW WORK shall not be deemed "a work made
for hire" by SUPPLIER for DGC under the copyright laws of the
United States, but shall be the joint property of both
parties, each having the right to use the NEW WORK in any way
it deems appropriate, without accounting to the other party.
Ideas, concepts, know-how or techniques developed in the
development of NEW WORK shall be the property of the party
which developed them or, if developed jointly, shall be the
joint property of both parties, each having the right to use
them in any way it deems appropriate without accounting to the
<PAGE>
other party. Each of the parties shall execute all documents
and do all other things reasonably necessary to fully vest
such rights in the other party or its respective designee.
D. Additional Rights - Ideas, concepts, know-how or techniques
developed in the performance of the applicable PROJECT
ATTACHMENT shall be the property of the party which developed
them, or if jointly developed, shall be the joint property of
both parties, each having the right to generally use the
jointly developed property without accounting to the other.
E. A copyright notice on any DGC/CUSTOMER INFORMATION, SUPPLIER
INFORMATION or NEW WORK does not by itself constitute or
evidence a publication or public disclosure.
4. CANCELLATION FOR BREACH
In the event of a cancellation for breach as set forth in the MSA at
the Section entitled "TERM AND TERMINATION", the following shall apply:
A. CONSULTING SERVICES - FIXED DELIVERABLE BASIS - If DGC cancels
a PROJECT ATTACHMENT due to SUPPLIER's breach of a material
obligation with regard to CONSULTING SERVICES being provided
on a FIXED DELIVERABLE BASIS, then, promptly after the
effective date of the cancellation, SUPPLIER shall:
1) refund all portions of the CONSULTING SERVICES Fee
and all reimbursements for authorized expenses and/or
taxes paid by DGC prior to such effective date, and
2) provide DGC with all NEW WORK prepared in the
performance of such CONSULTING SERVICES and SUPPLIER
INFORMATION needed for the operation or use of such
NEW WORK.
B. CONSULTING SERVICES - LABOR RATE BASIS - If DGC cancels a
PROJECT ATTACHMENT due to SUPPLIER's breach of a material
obligation with regard to CONSULTING SERVICES being provided
on a LABOR RATE BASIS, then, promptly after the effective date
of such cancellation, the following shall apply:
1) DGC shall be obligated to pay SUPPLIER only for that
portion of the CONSULTING SERVICES actually rendered
and accepted by DGC, and for the authorized expenses
and taxes directly related thereto actually incurred
by SUPPLIER, prior to the effective date of such
cancellation, and
2) SUPPLIER shall make any claims for amounts due
hereunder within thirty (30) calendar days after the
effective date of such cancellation and shall support
such claims with documentation submitted to DGC, and
3) If DGC has made advance payments in excess of the
amount
<PAGE>
determined in accordance with subsection 1) above,
SUPPLIER shall promptly refund such excess to DGC,
and
4) SUPPLIER shall provide DGC with all NEW WORK
prepared by SUPPLIER in the performance of such
CONSULTING SERVICES and any SUPPLIER INFORMATION
needed for the operation or use of such NEW WORK.
5. TERMINATION WITHOUT BREACH
The following provisions pertain to a termination of CONSULTING
SERVICES in the absence of a breach by SUPPLIER:
A. CONSULTING SERVICES - FIXED DELIVERABLE BASIS - With regard to
CONSULTING SERVICES being provided on a FIXED DELIVERABLE
BASIS, if i) the CUSTOMER terminates or cancels all or that
portion of the CUSTOMER CONTRACT that relates to such
CONSULTING SERVICES, or ii) DGC cancels all or that portion of
the CUSTOMER CONTRACT that relates to such CONSULTING SERVICES
due to CUSTOMER's breach of a material obligation of the
CUSTOMER CONTRACT, the following shall apply:
1) DGC shall have the option of terminating such
CONSULTING SERVICES by sending SUPPLIER written
notice indicating the basis for termination, which
notice shall become effective upon receipt, and
2) DGC shall be obligated to pay SUPPLIER only for that
portion of the originally agreed CONSULTING SERVICES
Fee that reasonably corresponds to the CONSULTING
SERVICES actually rendered, plus authorized expenses
and taxes directly related thereto and incurred by
SUPPLIER, prior to the effective date of such
termination, and
3) the provisions of subsection C. below shall apply.
B. CONSULTING SERVICES - LABOR RATE BASIS - Either party may
terminate CONSULTING SERVICES being provided on a LABOR RATE
BASIS without cause by sending the other written notice at any
time indicating a termination for convenience. Thereafter, DGC
shall be obligated to pay SUPPLIER only for the CONSULTING
SERVICES actually rendered plus authorized expenses and taxes
directly related thereto and incurred by SUPPLIER, prior to
the effective date of such cancellation, subject to the
minimum and/or maximum compensation amounts and notice
periods, if any, in the applicable PROJECT ATTACHMENT.
C. Additional Provisions - The following shall apply to any
terminations made pursuant to subsection A. or B. above:
1) SUPPLIER shall make any claims for amounts due
hereunder within thirty (30) calendar days after the
effective date of such termination and shall support
such claims with
<PAGE>
documentation submitted to DGC, and
2) If DGC has made advance payments in excess of the
amount determined in accordance with subsection A. or
B. above, as applicable, SUPPLIER shall promptly
refund such excess to DGC, and
3) SUPPLIER shall promptly provide DGC with all NEW WORK
prepared up to the date of termination in the
performance of such CONSULTING SERVICES and SUPPLIER
INFORMATION needed for the operation or use of such
NEW WORK.
<PAGE>
Exhibit 3
Licensing Provisions
This Exhibit 3 is hereby attached to and incorporated into the MSA between DGC
and SUPPLIER and sets forth the provisions applicable to each and every PROJECT
ATTACHMENT involving DGC's procurement of LICENSED PROGRAM from SUPPLIER.
1. FEES
The fees due SUPPLIER from DGC shall be as set forth on the applicable
PROJECT ATTACHMENT.
2. GRANT OF LICENSE AND RIGHT TO USE AND REMARKET
A. Evaluation License - SUPPLIER shall use good faith to attempt
to fulfill, a request from DGC to provide to DGC, at no
charge, one (1) copy of all LICENSED PROGRAM(S) identified on
the applicable PROJECT ATTACHMENT. With regard thereto,
SUPPLIER grants DGC a nonexclusive, nontransferable right and
license to use such solely for purposes of i) demonstration to
the applicable CUSTOMER, ii) testing, supporting and
evaluating to determine conformance to the requirements of the
applicable PROJECT ATTACHMENT. DGC shall make no other use
thereof.
B. Sublicensing of LICENSED PROGRAM - SUPPLIER hereby grants to
DGC, on a nonexclusive, nontransferable, irrevocable (except
as expressly provided herein) basis, the right and license to
obtain LICENSED PROGRAM(S) identified on the applicable
PROJECT ATTACHMENT from SUPPLIER for the purpose of providing
such to the applicable CUSTOMER under the terms of the
break-the-seal type license agreement packaged with the
LICENSED PROGRAM, if any, or in the absence of such
break-the-seal license agreement, under the same licensing
provisions as used by DGC to license its own programs of a
similar nature to CUSTOMER.
C. Additional Authorizations - Provided DGC is in compliance with
the material provisions of the applicable PROJECT ATTACHMENT,
SUPPLIER shall not invoke, at law or in equity, any
intellectual property or proprietary right, no matter when
acquired, in order to interfere with the exercise of any right
or the fulfillment of any obligation set forth in such PROJECT
ATTACHMENT, or to collect any monies in excess of the fees set
forth in such PROJECT ATTACHMENT.
D. General - DGC acknowledges SUPPLIER's representation that
LICENSED PROGRAM involves valuable copyright, trade secrets
and other intellectual property and/or proprietary rights of
SUPPLIER. No title to or ownership thereof is transferred to
DGC hereunder. DGC shall not be responsible for any violation
<PAGE>
of SUPPLIER's intellectual property and/or proprietary rights
by any entity other than DGC. DGC will promptly notify
SUPPLIER if DGC becomes aware of any such violation and will
provide reasonably cooperate with SUPPLIER in the protection
or enforcement of SUPPLIER's rights in LICENSED PROGRAM. DGC
shall have no obligation to commence any proceedings with
regard to such violation. DGC and SUPPLIER hereby agree that
the rights and licenses granted to DGC hereunder shall be
deemed made and effective as of the effective date of the
applicable PROJECT ATTACHMENT. SUPPLIER agrees to
expeditiously execute such documents and instruments as may be
reasonably requested by DGC for the enforcement thereof.
E. Restrictions - DGC shall not disassemble or reverse compile
LICENSED PROGRAM unless DGC has received SOURCE CODE as a
result of SUPPLIER's breach of the applicable PROJECT
ATTACHMENT. DGC shall make no use of LICENSED PROGRAM and
SOURCE CODE except as permitted hereunder and shall treat and
protect such with same degree of care as used by DGC with
regard to its own materials of a similar nature and
importance, and no less than reasonable care. DGC shall not
remove or alter any copyright or other proprietary notices
affixed to or embedded in LICENSED PROGRAM and/or SOURCE CODE
supplied to DGC by SUPPLIER, and shall include such in all
copies made by DGC. DGC shall have no obligation to determine
the appropriateness of such notices.
3. PURCHASE ORDER PROVISIONS
A. Leadtime and F.O.B. Point - The purchase order submitted by
DGC shall specify a shipment date not be less than five (5)
days after the date on which SUPPLIER receives the purchase
order via mail or Fax, without the prior consent (oral or
written) of SUPPLIER. The shipment shall be sent F.O.B.
Destination to the location, and via the freight method and
carrier, specified on the purchase order.
B. Early/Late Arrival - If a shipment has not arrived within five
(5) days after the specified shipment date, SUPPLIER shall, at
DGC's request, re-ship by next day air freight at no
additional charge to DGC. If SUPPLIER fails to ship within ten
(10) days after the specified shipment date, then for each day
thereafter that such shipment remains unshipped, the net price
to DGC shall be reduced by one half (1/2) percent of the
applicable fee, with a maximum reduction of fifty percent
(50%). DGC may cancel any order whose shipment is delayed more
than one (1) month after its specified shipment date.
C. Changes in Shipment Date - Shipments may be rescheduled and/or
cancelled by DGC without cost or liability by providing
SUPPLIER written or oral notice thereof at least five (5) days
in advance of the specified shipment date. Such notice shall
be given to SUPPLIER's sales organization.
<PAGE>
D. Incorrect Shipments - SUPPLIER shall take prompt remedial
action for any shipment which fails to conform with the
applicable purchase order, after receipt of notice thereof
from DGC.
E. Packing Slips - Packing slips will contain such information as
is required by DGC, including but not limited to, DGC's
purchase order number and/or DGC's customer sales order
number, DGC's part number, carton count, ship date, carrier
and shipment origin.
F. Shipment Confirmation - SUPPLIER agrees to provide the
following information to DGC within three (3) days after
shipment:
Sales Order # Ship Date Waybill # Freight Charges
# of Cartons Weight (in Pounds) Ship Via (Air, Padded
Van, Surface, etc.)
4. LICENSED PROGRAM WARRANTY
A. For any LICENSED PROGRAM that is provided by SUPPLIER to DGC
and subsequently provided by DGC to CUSTOMER under an executed
licensing agreement (as opposed to a LICENSED PROGRAM that is
packaged with its own "break-the-seal" type of license
agreement), SUPPLIER warrants to DGC and CUSTOMER that, for
ninety (90) calendar days after successful installation, the
LICENSED PROGRAM will operate in accordance with SUPPLIER's
(or the manufacturer's) published specifications applicable
thereto, and any other specifications and/or requirements set
forth in the applicable PROJECT ATTACHMENT. If DGC reports a
material deviation from the specifications or applicable
requirements within the WARRANTY PERIOD, and SUPPLIER is
unable to correct or offer an alternative acceptable to DGC
within thirty (30) calendar days after receipt of the report,
DGC shall have the option of returning the LICENSED PROGRAM,
and receiving a refund from SUPPLIER of the full amount paid
by DGC for such LICENSED PROGRAM.
B. For any LICENSED PROGRAM that is provided by SUPPLIER to DGC
with its own "break-the-seal" type of license agreement with
the media and documentation package, SUPPLIER shall provide
warranty service directly to CUSTOMER in the manner specified
in such license agreement.
C. SUPPLIER warrants all that it shall replace without charge,
within ten (10) calendar days after receipt of notice, any
LICENSED PROGRAM media or documentation supplied by SUPPLIER
that is, or becomes, defective within ninety (90) calendar
days after successful installation, provided the defect is not
due to accident, abuse or misapplication after arrival at
CUSTOMER.
<PAGE>
D. Restrictions - DGC shall not disassemble or reverse compile
PROGRAM(S) unless DGC has received a license to use the
related SOURCE CODE in the applicable PROGRAM ATTACHMENT. DGC
shall make no use of PROGRAM(S) and/or SOURCE CODE except as
permitted thereunder. DGC shall treat and protect such with
the same degree of care as used by DGC with regard to its own
information and materials of a similar nature and importance,
and no less than reasonable care. DGC shall not remove or
alter any copyright or other proprietary notices affixed to or
embedded therein, and shall include such in all copies made by
DGC. DGC shall have no obligation to determine the
appropriateness thereof. DGC shall not use or authorize the
use of PROGRAM(S) and/or SOURCE CODE outside of the TERRITORY.
<PAGE>
Exhibit 4
LICENSED PROGRAM Support Provisions
This Exhibit is hereby attached to and incorporated into the MSA between DGC and
SUPPLIER and sets forth the provisions applicable to each and every PROJECT
ATTACHMENT involving DGC's purchase of SUPPORT SERVICES for LICENSED PROGRAM(S),
SUPPLIER INFORMATION or NEW WORK to be provided by SUPPLIER. The purpose of this
Exhibit is to identify i) the support requirements of the CUSTOMER CONTRACT, and
ii) each party's responsibilities in fulfilling such requirements. SUPPLIER
shall comply with its support obligations ("SUPPORT SERVICES"), as set forth
below, during the WARRANTY PERIOD, if any, and such subsequent periods, if any,
for which DGC has paid the applicable SUPPORT SERVICES Fee, if any.
1. COMMUNICATION
Each party shall designate in writing the names of specific individuals
that shall act as such party's representatives for purposes of
contacting the other party's support center. Each party reserves the
right to change such names when appropriate. Unless otherwise agreed
for a particular matter or circumstance, DGC shall provide support
directly to and act as the contact point with the applicable CUSTOMER.
SUPPLIER shall interface with DGC.
2. SUPPORT SERVICES FEE
The SUPPORT SERVICES Fee shall be as set forth in the applicable
PROJECT ATTACHMENT.
3. PHONE-CALL SUPPORT
SUPPLIER shall promptly alert DGC to known problems, including any
solutions or workarounds, and answer DGC's questions, submitted via
telephone, related to operation, sysgen and installation,
configuration, documentation, general product information, and Trouble
Reporting and Resolution services. When DGC calls SUPPLIER, DGC will
have already conducted an investigation of the problem. The level of
telephone consultation provided by SUPPLIER should minimally be at the
system engineer level. The telephone hotline service will be available
from 8:00 A.M. to 8:00 P.M., Eastern Time.
4. TROUBLE REPORTING AND RESOLUTION
SUPPLIER and DGC shall use the following procedures for Trouble Reports
(TRs).
A. TR Generation - DGC must sufficiently define the problem in
the TR so it can be reproduced by SUPPLIER. SUPPLIER shall
promptly notify DGC if SUPPLIER can not reproduce the
<PAGE>
problem. DGC shall request additional information and the TR
will have a status of "Waiting". If the TR arrives after 3:00
PM, SUPPLIER's local time, the acknowledgement and
verification interval will begin at the start of the next day.
B. TR Content - A single TR contains only one (1) reported
problem, to ensure separate tracking of unrelated problems.
C. TR Responses - The following are the types of TR responses:
1) "Fix" - usually a change that will close the TR. It
may be a patch (the modification of an existing
binary file), a replacement module, a special
program, or a change in documentation. A Fix will be
provided to DGC within the time frame specified for
the assigned Priority Code, even if the problem will
be addressed in the next release. A Fix includes the
change to the code as well as to the related
documentation. A single Fix may apply to more than
one TR.
2) "Workaround" - usually a set of procedures that
circumvents or mitigates the impact of a problem,
though the problem continues to exist. A Workaround
may be provided in lieu of a Fix for a specific TR.
D. Priority Codes - The Priority Code indicates the urgency with
which SUPPLIER must respond to the TR. DGC will use the nature
of the problem and the business situation to determine the
Priority Code. The TR Priority Code may be reclassified by
SUPPLIER upon consent by DGC. This may occur, for example, if
SUPPLIER provides a satisfactory Workaround for the problem or
determines that the problem arises from a faulty understanding
of the original TR. The Priority Codes are as follows:
Priority Description
Code #
10 URGENT PROBLEM - System or major application
is not functional or seriously impacted and
there is no reasonable Workaround currently
available.
20 MODERATE PROBLEM - System or application is
moderately impacted. There is no Workaround
currently available or the Workaround is
cumbersome to utilize.
30 NON-CRITICAL PROBLEM - System or application
is impacted but causes little or no loss of
productivity for users.
90 REQUESTS FOR ENHANCEMENTS - Although not a
problem, will be treated with the same
<PAGE>
procedures. An acceptable response states
whether or not the request will be honored,
with no commitment necessary.
Priority Code 10 and 20 TRs will be given top
priority.
E. TR Receipt Acknowledgement and Verification - SUPPLIER will
send an acknowledgement of its receipt of an TR to DGC. At
receipt, SUPPLIER will i) enter the TR into the central
problem reporting database, ii) assign technical staff to
verify and analyze the TR, and iii) assign the appropriate
status category to the TR. The acknowledgement and the attempt
to reproduce the problem will be done according to the
following schedule:
Priority Code # Acknowledge/Reproduce Problem
10, 20 Within 1 day
30 Within 5 days
90 Within 10 days
F. TR Response: Type and Interval Definition - After receipt and
verification, SUPPLIER shall enter the TR into the TR
database, commence to correct the problem, test the proposed
correction (including regression testing) and forward the
correction to DGC for implementation. SUPPLIER shall provide
both an initial and a final response for each TR. The time
period for providing an initial response begins when an TR has
been acknowledged and verified by SUPPLIER. A final response
is made and the TR is closed when a correction for the problem
is included in the next release.
Each Priority Code specifies the required content of the
initial response to the TR and the maximum number of days in
which such response shall be made available to DGC. SUPPLIER
shall revise the TR record with information on the initial and
final responses on a timely basis.
<PAGE>
Priority INITIAL RESPONSE
CODE (DAYS - RESPONSE TYPE) FINAL RESPONSE
10 1 - Fix or Workaround Integrate Fix into next
with daily update release.
20 1 - Fix or Workaround Integrate Fix into next
release.
30 30 - Fix or Workaround Integrate Fix into next
release.
90 125 - Fix or Workaround Fix may be integrated into
at SUPPLIER's next release at SUPPLIER's
discretion discretion
G. Performance Goals - SUPPLIER will use its best efforts to
provide the initial response to an TR within the time period
for the Priority Code unless otherwise mutually agreed.
SUPPLIER will provide an initial response to a Priority Code
10 TR as quickly as possible, based on continuous effort until
relief is provided. Daily updates will be provided to DGC for
Priority Code 10 TRs.
H. TR Reporting - The TR form may be submitted electronically.
Upon receipt of an TR, SUPPLIER will enter the TR into its
central TR problem reporting database. An TR record shall
contain the date, status, problem description, configuration,
activities done to reproduce the problem, the Severity Code,
and the TR identification number. The TR record may contain
any other pertinent information. Activities done to resolve
the problem along with the resolution are recorded in the TR
record as they occur. Attachments such as large quantities of
input and output data (e.g., core dumps) may be sent
electronically with the original TR or mailed.
The TR status categories are to be mutually agreed on.
Suggested status categories are:
1. Acknowledged
2. Reproduced
3. Waiting for more information
4. Under Investigation
5. Deferred - A bug exists but no Fix until the next
release.
6. Not a SUPPORT SERVICES issue - The problem is not
caused by an item covered by SUPPORT SERVICES.
7. User error
8. Not reproducible
9. Duplicate TR - The original TR is cross-referenced.
10. Fix being developed
11. Fix supplied
12. Fix in next release
13. Closed - DGC and SUPPLIER agree the problem is
resolved.
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I. Monthly Summary of Escalated Calls - SUPPLIER agrees to
summarize all responses to all unresolved TRs in a monthly
written report that will be provided to DGC within ten (10)
days after the end of each month, and shall include a
description of the specific problem resolution actions taken
or contemplated, and the status of SUPPLIER's remedial efforts
and anticipated time of solution.
5. COMPATIBILITY
Within ninety (90) calendar days after SUPPLIER's receipt of a
subsequent release of the operating system for the applicable DGC
computer system, SUPPLIER shall issue, at no separate or additional
charge to DGC, a subsequent release of LICENSED PROGRAM that continues
to fulfill SUPPLIER's other obligations under the applicable PROJECT
ATTACHMENT and maintains compatibility with such subsequent release of
the operating system.
6. PARITY
Within ninety (90) calendar days after SUPPLIER first issues each new
release of its program, equivalent to LICENSED PROGRAM, made for use on
a non-DGC operating system, SUPPLIER shall issue, to the extent
technically feasible, a subsequent release of LICENSED PROGRAM that
fulfills SUPPLIER's other obligations under the applicable PROJECT
ATTACHMENT and maintains parity with such equivalent program.
7. SUPPORT PERIOD
SUPPLIER will support each release for a period until one hundred
eighty (180) calendar days after SUPPLIER is authorized to commence
shipment of the subsequent release in accordance with the provisions of
this Exhibit (hereinafter called "SUPPORT PERIOD"). During the SUPPORT
PERIOD for each release, problems therein shall be corrected in
accordance with the procedures set forth herein. After the expiration
of the SUPPORT PERIOD for a specific release, problems discovered
therein, which are also reproducible on the then current release, shall
continue to be corrected in accordance with the procedures set forth
herein. Those problems which are not reproducible on the then current
release shall be addressed, at SUPPLIER's then current standard terms
and prices, within a reasonable time after DGC's written request.
8. PRODUCT NEWSLETTER
DGC provides and uses for support purposes an on-line product
newsletter describing proposed changes, future releases, information on
compatibility and third party programs or hardware, tips and
techniques, articles, and known problems and solutions not covered in
the TR database, as well as general information. As part of SUPPORT
SERVICES, SUPPLIER will provide relevant
<PAGE>
information to DGC, of the type that SUPPLIER generally provides to its
other distributors and users, for inclusion in this newsletter.
9. IMPLEMENTATION OF SUBSEQUENT RELEASES
A. General - DGC shall be required to use a subsequent release of
LICENSED PROGRAM only to the extent that such subsequent
release of LICENSED PROGRAM has been accepted for use by DGC's
customer in accordance with the applicable provisions of the
CUSTOMER CONTRACT.
B. Subsequent Releases Included in SUPPORT SERVICES - It is the
intention of the parties that DGC shall have the right, but
not the obligation to obtain from SUPPLIER, as part of SUPPORT
SERVICES any subsequent release of LICENSED PROGRAM, however
designated by SUPPLIER, to the extent that such subsequent
release contains a modification, enhancement, Fix, Workaround
or other change that does not meet the definition of a "NEW
VERSION". A subsequent release is defined as a "NEW VERSION"
only if such release is made generally available by SUPPLIER
i) under a designation or model number different from that
used for the immediately prior release, ii) at a charge that
is separate from or in addition to both the original licensing
fee and the usual and customary support fee charged for
support and bug fixes, and iii) while SUPPLIER continues to
separately license and support the immediately prior release.
A NEW VERSION shall only be deemed to be offered to DGC as
part of SUPPORT SERVICES to the extent that the parties make
express provisions to do so.
C. DGC Requested Changes - SUPPLIER agrees, at its then current
standard charges and terms, to make enhancements, changes,
modifications, and additions to LICENSED PROGRAM, in addition
to those required or provided by SUPPORT SERVICES, as may be
reasonably requested by DGC.
D. Format - Subsequent releases containing minor changes may be
made available with the documentation changes specified in a
separate release notice. Subsequent releases containing major
modifications or enhancements shall be made available with the
changes integrated into a revised set of documentation.
<PAGE>
AMENDMENT NO. 1
This Amendment Number 1 entered into as of January 30, 1997 amends a Master
Supplier Agreement entered into on March 18, 1996 (hereinafter referred to as
the "Agreement") by and between DATA GENERAL CORPORATION of Westboro
Massachusetts (hereinafter referred to as "DGC", and MARK SOLUTIONS, INC., of
Bloomfield, New Jersey (hereinafter referred to as "Mark").
WHEREAS DGC and Mark desire to modify the relationship set forth in the
Agreement to include exclusivity and additional marketing support.
NOW THEREFORE, for and in consideration of the mutual promises set forth herein
and other valuable consideration, the receipt of which is hereby acknowledged by
each of the parties, the parties hereto agree to amend the Agreement as follows:
1. In Article 7, after Paragraph L, insert the following:
--M. DGC shall use Mark LICENSED PROGRAMS for all proposals and/or
bids requiring the functionality of the LICENSED PROGRAMS,
including Teleradiology, PACS and MiniPACS, unless such
proposals and/or bids include a functionality requirement or
performance requirement absent from the LICENSED PRODUCTS
where Mark is unable or unwilling to include such missing
functionality or performance in a time period that would make
DGC's bid compliant.
N. DGC shall compose marketing programs, produce literature,
participate in relevant industrial shows and hire employees to
both support the sales process and provide management
expertise for implementation. DGC shall attempt to use its
marketing channels to distribute the LICENSED PRODUCTS on a
worldwide basis in such a manner as to attempt to maximize
revenue streams where practical.
O. DGC shall, if reasonably required, provide Mark with DGC
equipment by means of a standard DGC short term loan agreement
and/or preferred pricing to further the development and
demonstration of the LICENSED SOFTWARE on DGC equipment.
P. DGC shall not abandon its marketing efforts for the LICENSED
SOFTWARE without adequate notice of DGC's intentions.
Q. Mark shall urge its customers and prospects to utilize the
LICENSED SOFTWARE on DGC equipment (AViiONs, CLARiiONs and DGC
peripherals) and utilize DGC's implementation services, In the
event that Mark meets
<PAGE>
resistance in its efforts, Mark shall permit DGC's personnel
to assist in the sales effort before Mark suggested another
platform.
R. Mark shall continue in its development efforts to maintain its
products current on Data General Equipment. Mark shall
maintain its product to current standards as defined by
competitive products in the market place.
S. Mark shall produce literature, participate in relevant
industrial shows and hire employees to support the sales
process, provide software implementation expertise and provide
ongoing software support.
IN WITNESS WHEREOF the parties to this Agreement have caused their authorized
representatives to execute this Amendment Number 1 below effective as of the
date first above written.
DATA GENERAL CORPORATION MARK SOLUTIONS, INC.
("DGC") ("Mark")
By: /s/ Michael Worhach By: /s/ Carl Coppola
-------------------- ------------------
Title: V.P. Title: President
Date: 1/30/97 Date: 1/20/97
