EXHIBIT 10.10
SOFTWARE LICENSE DISTRIBUTION AGREEMENT
THIS SOFTWARE LICENSE DISTRIBUTION AGREEMENT ("Agreement") is made and
entered into as of October 1, 1993 by and between DST SYSTEMS, INC., ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ a Missouri corporation ("DST") and THE
CONTINUUM COMPANY, INC. ("Continuum").
FOR AND in consideration of the mutual covenants herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, it is hereby agreed as follows:
1. DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings specified:
1.1 An "Affiliate" of DST, Continuum or an End User shall mean its
parent (a Person owning at least fifty-one percent (51%) of
it) or any Subsidiary of it or its Parent.
1.2 "Documentation" shall mean and include all media and
documentation developed or distributed by DST relating to the
operation, functionality, support and maintenance of the
Licensed Software, including but not limited to end-user
manuals, technical assistance manuals, flow charts, training
manuals and the like.
1.3 "End User" shall mean (a) a Person primarily engaged in the
business of (i) issuing, insuring or reinsuring life insurance
policies, (ii) issuing annuities as an insurance company,
(iii) administering life insurance company superannuation
programs, (iv) issuing, insuring or reinsuring property and
casualty insurance policies, and (v) issuing, insuring or
reinsuring health and/or accident insurance policies issued by
a company whose primary business (or whose ultimate parent's
primary business) is life insurance or issued by a company
listed on Schedule A-1 attached hereto, excluding in all
instances in clauses (i) through (v) above, independent agents
and agencies and (b) Affiliates of such companies whose
primary function is the providing of data processing services
to such companies.
1.4 "Continuum Marketing Area" shall mean worldwide.
1.5 "Licensed Software" shall mean the computer software system
known as Automated Work Distributor(TM) or AWD(R), as
described in SCHEDULE A-2 attached hereto.
1.6 "Person" shall mean an individual, corporation, partnership,
trust, association, entity or governmental authority.
1.7 A "Subsidiary" of DST, Continuum or an End User shall mean a
corporation, fifty-one percent (51%) or more of the capital
stock of which is owned by it directly or indirectly through
one or more subsidiaries and which is managed and controlled
by it.
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1.8 "System" shall mean collectively the Documentation and the
Licensed Software.
2. LICENSE GRANTED TO CONTINUUM
2.1 On the terms, and subject to the conditions, of this
Agreement, DST hereby grants to Continuum an exclusive
(subject to the other provisions of Section 2),
non-transferable and revocable license (the "License") during
the term of this Agreement to use in its own and its
Affiliates' businesses (including providing services to third
parties), and to demonstrate, market and sublicense the System
in object code form to End Users located in the Continuum
Marketing Area, to provide maintenance and other services
relating to the System to such End Users, and to create
derivative works based on the System.
2.2 To retain its exclusive right to market and sublicense the
System to End Users, Continuum shall be required to sell the
minimum number of sublicenses each year during the term of
this Agreement as is set forth on Schedule B attached hereto.
Continuum acknowledges and agrees that such minimum
requirements were established mutually by DST and Continuum
and represent performance standards that Continuum should be
capable of achieving using reasonable efforts.
2.3 In the event that Continuum fails at any time to meet the
minimum requirements with respect to any geographic area or
areas specified in Schedule B, DST may, immediately following
delivery of thirty (30) days written notice to Continuum if
such failure is not cured within such thirty (30) day period,
deem the license granted to Continuum pursuant to Section 2.1
of this Agreement to be non-exclusive with respect to such
geographic area or areas. DST shall then have the unlimited
right to market and license the System directly to End Users
in the geographic area where exclusivity has been terminated
and/or to appoint other distributors and licensing agents for
the System in the geographic area where exclusivity has been
terminated.
2.4 Notwithstanding the grant of exclusivity in Section 2.1, (a)
DST retains the exclusive right, directly or through its
Affiliates, to market and license the System to the End Users
in the Continuum Marketing Area set forth on SCHEDULE C, on
the terms and conditions set forth on SCHEDULE C, (b) the
Persons listed as "Current Distributors" on SCHEDULE C may, to
the extent set forth on SCHEDULE C, continue to distribute and
sublicense the System to End Users in the Continuum Marketing
Area for the term of their existing agreements with DST, and
(c) DST retains the right, directly or through its affiliates,
to market the System to End Users who have installed other
proprietary software of DST or its Affiliates or to whom DST
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or its affiliates propose to bundle the System with other
proprietary software of DST or its affiliates in the areas of
mutual fund and unit trust accounting and recordkeeping,
portfolio accounting, stock transfer and pension recordkeeping
and reporting. [INFORMATION OMITTED - CONFIDENTIAL TREATMENT].
2.5 If DST or its affiliates licenses the System to an affiliate
of an End User or licenses the System as an integral part of
other software being provided to an End User (e.g. a unit
trust system) and, in either case, the End User or its
affiliate desires to expand its use of the System to include
an insurance line of business and DST grants a license for
such expanded use, such event would not be a violation of
Continuum's exclusive rights hereunder and DST would pay to
Continuum a commission of [INFORMATION OMITTED - CONFIDENTIAL
TREATMENT]. If Continuum licenses the System to an End User
and such End User desires to expand its use of the System to
include non-insurance lines of business other than the mutual
fund business, Continuum, with prior written consent from DST
(executed by the DST representatives listed in Section 16.6),
may grant a separate license for each such other lines of
business, and the granting of such additional license by
Continuum would not be a violation by Continuum of its limited
marketing rights hereunder, and Continuum will pay to DST the
appropriate royalties pursuant to Section 5 for such
additional license. If DST licenses the System to a bank or
other financial institution for use in the superannuation line
of business, no amounts would be paid to Continuum; license of
the System for the superannuation line of business to other
non-insurance companies by DST may give rise to a payment to
Continuum if a prior agreement on such topic is entered
between DST and Continuum covering the country in which such
company is located. Continuum may market the System to other
than End Users only with the prior written approval of DST
which is specific as to the name of the company and for which
DST and Continuum have agreed to the amount of the royalty to
be paid to DST.
2.6 Continuum shall periodically (at least quarterly) review the
names of prospective End Users in the Continuum Marketing Area
and determine in good faith the name of any End User who has
indicated it did not want to sublicense from Continuum or who
Continuum believes would not sublicense from it, and Continuum
shall promptly provide such names or otherwise refer such End
Users to DST. DST will periodically (at least quarterly)
report to Continuum on DST's marketing activities with respect
to such referred End Users. If DST licenses the System to any
such referred End User within 12 months of such referral, DST
shall pay Continuum a referral fee of [INFORMATION OMITTED -
CONFIDENTIAL TREATMENT], payable within thirty (30) days from
collection, and Continuum shall not otherwise be entitled to
any payment or compensation from DST hereunder with respect to
such End User. Upon request of DST from time to time,
Continuum shall review with DST prospective End Users
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identified by DST and discuss with DST Continuum's marketing
plans with respect to such End Users. If Continuum does not
intend to actively market the System to any of such
prospective End Users within the immediately following six (6)
months, DST and Continuum will use reasonable efforts to agree
on a plan for DST or DST and Continuum jointly to market the
System to such End Users.
3. RESTRICTIONS ON LICENSE GRANTED TO CONTINUUM
3.1 Continuum shall only sublicense the System to End Users for
the internal use of such End Users. Each sublicense granted by
Continuum shall only confer rights to use the System only in
the End User's business (but not as a service bureau);
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT].
3.2 Continuum shall be given access to the source code for the
System for purposes of providing maintenance and support to
the End User, but all sublicenses of the System granted by
Continuum shall be of object code only unless otherwise
specifically agreed by DST in writing on a case by case basis.
Except as contemplated by the escrow described in Section
16.12, Continuum shall not permit any sublicensee to have
access to the source code for the System without the express
written consent of the President or Chief Information Officer
of DST.
3.3 All sublicenses granted by Continuum shall contain at least
the terms and conditions attached hereto as SCHEDULE D (the
"Required Terms"), unless otherwise agreed in writing by DST;
provided, however, that Continuum may make, without DST's
agreement, non-material changes in wording or other changes
which may be more protective of Continuum and DST or more
restrictive on the End User (the "Permitted Changes").
Continuum shall be responsible for determining that sublicense
agreements with End Users comply with local law in the country
where such agreements are used by Continuum; provided,
however, that no change to comply with local law may be made
in the Required Terms other than Permitted Changes without the
written agreement of DST, which agreement may not be
unreasonably withheld. The agreement of DST to change the
Required Terms may be given by only the President, Chief
Information Officer or General Counsel of DST. Continuum
hereby holds DST harmless and indemnifies DST from any loss or
damages incurred by DST by reason of any change (other than
the Permitted Changes) in the Required Terms unless the change
is agreed to in writing by DST. The duration and other terms
and conditions of sublicense agreements with End Users shall
be determined by Continuum, provided that any such terms and
conditions may not be in conflict with the requirements and
limitations of this Agreement.
3.4 Continuum shall provide DST with copies of all sublicenses of
the System executed by Continuum within twenty (20) days of
the date of execution of each sublicense.
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4. RECOMMENDED SUBLICENSE PRICES
4.1 DST's current recommended prices for sublicenses of the System
in the Continuum Marketing Area are set forth in SCHEDULE E
attached hereto. Such recommended prices may be increased or
decreased annually at the discretion of DST provided, however,
that any such increase in such prices shall not exceed
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]. The limitation
on price increases in this Section 4.1 shall not apply to new
releases of the Licensed Software which include significant
changes in architecture or platform or to new versions of the
Licensed Software. Continuum shall be free to determine the
prices at which it will sublicense the System in the Continuum
Marketing Area.
5. ROYALTIES PAYABLE BY CONTINUUM
5.1 For use of the System by Continuum in its business, Continuum
shall pay DST royalties as set forth in SCHEDULE F-1 attached
hereto. For each sublicense of the System granted by
Continuum, Continuum shall pay DST royalties as set forth in
SCHEDULE F-2 attached hereto.
5.2 All royalties owed to DST hereunder shall be paid to DST in
U.S. Dollars within 30 days after receipt by Continuum of the
corresponding payment from the sublicensee; for example, if
the license fee payable to Continuum is payable in
installments, the royalty paid to DST will be in corresponding
installments. If the sublicense fees are paid to Continuum in
a foreign currency, the royalty payment to DST shall be based
on the foreign currency exchange rate to U.S. Dollars on the
date payment is received by Continuum. DST may elect as
respects any royalty payment to receive such royalty payment
in the currency received by Continuum in payment of its
license fee by its client.
5.3 Any sum due to either party from the other hereunder which is
not paid within the period specified in Section 5.2 hereof
shall incur a late payment fee at the rate of [INFORMATION
OMITTED - CONFIDENTIAL TREATMENT] per month but in no event to
exceed the maximum late payment charge allowed by applicable
law.
5.4 Any and all excise, stamp, sales, use, withholding, value
added, import or export duties, or other taxes or levies
(except only taxes imposed on the net income of DST or legally
required withholding attributable to royalty payments made to
DST) imposed by any governmental entity in the Continuum
Marketing Area (collectively, "Taxes") on any royalties,
maintenance or other payments by Continuum to DST and by DST
to Continuum under this Agreement shall be paid by Continuum.
Continuum agrees to indemnify DST against all claims against
DST in respect of any such taxes.
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6. OBLIGATIONS OF CONTINUUM
6.1 DST shall have no obligation to translate to another language
from English any text comprising screen displays, manuals, or
other documentation. If Continuum translates into a language
other than English the English language text comprising the
screen displays of the Licensed Software manuals, or other
documentation, Continuum shall supply copies of such
translations to DST without charge. DST shall provide to
Continuum without charge, any foreign language translations
which DST has made or which are available without cost to DST.
6.2 Continuum agrees that all translations of screen displays and
manuals prepared by Continuum constitute derivative works and
Continuum hereby assigns to DST any and all copyrights and
other proprietary rights which Continuum may acquire to such
translations. DST is and shall remain at all times the owner
of all proprietary rights in such translations; provided,
however, that Continuum shall be entitled to retain a license
to use such translations subject to the terms and conditions
of this Agreement.
6.3 Continuum shall use its reasonable efforts to actively and
diligently market and to solicit orders for the sublicensing
of the System in the Continuum Marketing Area.
6.4 Continuum shall provide suitably trained and qualified sales
and technical support staff capable of marketing, installing,
maintaining and supporting the Licensed Software.
6.5 Continuum shall comply in all material respects with all
applicable laws, rules, regulations or ordinances relating to
the marketing, and sublicensing of the System, including all
United States and other country export and import laws and
regulations. If there is any country into which Continuum does
not license its proprietary software because of an inability
to protect its proprietary rights in such country, or if there
is otherwise any country where either DST or Continuum
reasonably determines that the proprietary rights of DST in
the System can not be protected, Continuum shall not market,
sublicense or install the System for use in such countries.
6.6 Continuum shall provide DST with copies of all marketing and
promotional materials prepared by or on behalf of Continuum
with respect to the System as soon as practicable, but in any
event no more than sixty (60) days after preparation of such
materials. Receipt of such materials by DST shall not give
rise to any obligation by DST to review such materials for
accuracy or constitute any representation by DST as to the
accuracy of such materials. To the extent DST reviews such
materials and has actual knowledge of any inaccuracy in such
materials, it shall advise Continuum. Continuum shall
indemnify and hold harmless DST in respect of all liabilities,
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losses, claims and damages resulting from any misstatements,
errors or omissions in such materials (other than materials
provided by DST pursuant to Section 6.7 below), except only
inaccuracies in such materials of which DST has actual
knowledge and fails to advise Continuum of such inaccuracy.
6.7 DST shall make available to Continuum and licenses Continuum
to use any marketing materials developed by DST which
specifically pertain only to the System. DST MAKES NO
REPRESENTATION OR WARRANTY OF ACCURACY OR FITNESS OF ANY SUCH
MATERIALS FURNISHED TO CONTINUUM, AND CONTINUUM SHALL ASSUME
ALL RISKS AND OBLIGATIONS ASSOCIATED WITH USING ANY SUCH
MATERIALS PROVIDED.
6.8 Continuum shall submit to DST a quarterly report concerning
the marketing activities of Continuum containing details of
the number of prospects contacted, the number of presentations
made, the number of sublicenses expected during the next 90
days, and such other information concerning performance of
this Agreement as may from time to time be reasonably
requested by DST. Such reports shall be submitted within
thirty (30) days after the end of each calendar quarter.
6.9 Continuum shall maintain adequate sub-licensing records and
shall provide DST within thirty (30) days following the end of
each calendar quarter with a detailed report of the prior
quarter's sub-licensing transactions.
6.10 Continuum shall give DST prompt notice of any infringements of
DST's copyright or other intellectual property rights in the
System that come to Continuum's attention during the term of
this Agreement.
6.11 Continuum agrees to observe all requirements of the vendors of
third party software included by DST in the Licensed Software
("Third Party Software") which pertains to the distribution or
sublicensing of such Third Party Software. DST will provide
Continuum with copies of DST's license agreements with all of
such Third Party Software vendors.
7. OBLIGATIONS OF DST
7.1 Within thirty (30) days after the date of this Agreement, DST
shall deliver to Continuum one copy of the Licensed Software
in source and object code.
7.2 DST shall provide to Continuum such documentation and
technical information respecting the System as may reasonably
be required by Continuum in order to carry out Continuum's
obligations under this Agreement, and will provide Continuum
with updates, fixes, and enhancements to such materials from
time to time as developed and released by DST. DST will
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provide Continuum with such materials at least as soon as
provided to other distributors or generally released by DST to
users of the Licensed Software. DST will use reasonable
efforts to inform Continuum of technical developments
respecting the System prior to general release of such
information.
7.3 DST will make available without charge up to 28 days training
(in the aggregate) in the installation and operation of the
System for up to 6 employees of Continuum. An additional
twenty-eight (28) days of training shall be available without
charge upon each release of a new version of the Licensed
Software. Such training shall be held at DST 's location in
Kansas City, Missouri. Continuum shall pay for all expenses of
its employees who participate in such training.
8. CONSULTING, MAINTENANCE AND SUPPORT SERVICES
8.1 Continuum shall use its reasonable efforts to enter into an
Enhancement and Support Agreement with each sub-licensee
providing for the enhancement and support services set forth
on SCHEDULE G attached hereto. Recommended fees to be charged
by Continuum under Enhancement and Support Agreements are set
forth in SCHEDULE H attached hereto.
8.2 Continuum may elect by region (Europe, United Kingdom, Pacific
Rim, and all other countries) to provide to End Users either
(a) Level One support or (b) Level One and Level Two support,
as defined in Exhibit X attached hereto. If Continuum makes no
election, it shall be deemed to have elected to provide Level
One service only. In all instances, Continuum shall:
(a) install a copy of the current release of the standard
version of the System in a suitable compatible
environment to which Continuum has access; and
(b) designate a suitably trained and qualified employee
of Continuum as responsible for coordination of
support and maintenance services with DST's
personnel.
8.3 DST agrees to provide Continuum Level Three support,
consisting of enhancement and support services equivalent to
those provided by DST Systems to subscribers to its
enhancement and support program in the United States of
America, including those services listed on SCHEDULE G. If
Continuum does not elect to provide Level Two support to End
Users in a region, DST shall provide such support through
DST's existing facility location. In consideration of such
enhancements and support by DST, Continuum shall pay to DST in
respect of each Enhancement and Support Agreement entered into
by Continuum an annual royalty of [INFORMATION OMITTED -
CONFIDENTIAL TREATMENT].
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8.4 DST shall provide such other or additional services as the
parties may from time to time mutually agree ("Consulting
Services") to Continuum or to sublicensees and/or prospective
sublicensees of the System which require such services. DST
shall ▇▇▇▇ Continuum for its fees and expenses incurred in
providing Consulting Services at billing rates as agreed to
from time to time by DST and Continuum. All invoices rendered
by DST to Continuum for Consulting Services shall be due and
payable within thirty (30) days of the relevant invoice. Any
amounts not paid by Continuum when due shall bear interest at
the rate of [INFORMATION OMITTED - CONFIDENTIAL TREATMENT] per
month or, if lower, the maximum rate permitted by applicable
law.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 The System and all copies, enhancements, modifications,
updates and other derivative versions thereof and derivative
works therefrom which include any of the System code or other
DST Confidential Information (as defined below) constitute
valuable and confidential trade secrets of DST and are
proprietary to DST. All applicable copyrights, trade secrets,
trademarks, patents and other intellectual and proprietary
rights in and to the System and all copies thereof are and
shall remain in DST. All aspects of the System, including
without limitation, all designs, engineering details,
algorithms, programs, methods of processing, specific design
and structure of individual programs and their interaction,
and the programming techniques employed therein shall remain
the sole and exclusive property of DST. IT IS EXPRESSLY
UNDERSTOOD THAT NO TITLE TO OR OWNERSHIP OF THE SYSTEM, OR ANY
PART THEREOF, IS HEREBY TRANSFERRED TO CONTINUUM OR ANY
SUBLICENSEE OF CONTINUUM.
9.2 The License herein granted by DST to Continuum shall include
DST's right to use the trademarks and/or service marks
"Automated Work Distributor"TM and "AWD"(R) (collectively, the
"Marks"). Continuum shall be entitled to use such Marks only
in connection with the marketing and sublicensing, as
applicable, of the System in the Continuum Marketing Area and
Continuum shall make no other use of the Marks. Subject to the
license rights herein granted by DST to Continuum to use such
Marks in connection with the marketing and sublicensing of the
System hereunder, the Marks are and shall remain the sole and
exclusive property of DST Systems. Upon the expiration or
termination of this Agreement Continuum shall cease all use of
the Marks. Continuum shall not at any time during or after the
term of this Agreement (i) claim any right, title or interest
in or to any ▇▇▇▇ (whether registered, non-registered or
applied for), or (ii) undertake to copyright, trademark, trade
name or apply for a patent with respect to the System or any
portion thereof. Continuum recognizes that all or a part of
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the System may be copyrighted, trademarked or patented by DST
and agrees that any such act shall not cause or be construed
as causing the System or any portion thereof to be in the
public domain. Continuum agrees that it will not remove from
copies of the System, or any component thereof, any form of
copyright or other proprietary notice appearing on the System
or any component thereof.
9.3 Continuum acknowledges and agrees that the terms and
conditions of this Agreement, the System, and information
obtained by Continuum concerning the other software, software
applications, equipment configurations, and business of DST
(collectively the "DST Confidential Information") is
confidential and proprietary to DST and Continuum hereby
agrees to maintain the confidentiality of the DST Confidential
Information and not to disclose the DST Confidential
Information, or any part thereof, to any other person, firm or
corporation except to the extent reasonably required to
exercise its rights granted pursuant to Section 2.1 of this
Agreement. Continuum acknowledges that the disclosure of the
DST Confidential Information may give rise to an irreparable
injury to DST inadequately compensable in damages.
Accordingly, DST may seek (without the posting of any bond or
other security) injunctive relief against the breach of the
foregoing undertaking of confidentiality and nondisclosure, in
addition to any other legal remedies which may be available,
and Continuum consents to the obtaining of such injunctive
relief.
9.4 Continuum shall instruct those of its employees to whom
disclosure is made of any DST Confidential Information to
observe the confidentiality and non-disclosure obligation of
Continuum herein and shall have in effect with all such
employees agreements requiring their compliance with such
instructions. If Continuum discloses DST Confidential
Information to any other person permitted to receive such
information hereunder, Continuum shall require such person to
execute a confidentiality agreement substantially in the form
attached hereto as Exhibit Y.
9.5 The terms of this Article 9 shall survive the expiration or
termination of this Agreement.
10. WARRANTIES; DISCLAIMER; LIMITATION OF LIABILITY
10.1 DST warrants that: (a) it has all necessary power and
authority to enter into this Agreement; (b) it is the owner of
and has the right to license the System; and (c) to its
knowledge, the Licensed Software delivered to Continuum
hereunder contains no viruses or, unless advised to Continuum
in writing, no disabling devices. DST periodically uses
reasonable tests of the Licensed Software to determine the
presence of viruses and uses reasonable efforts to remove any
viruses disclosed by such tests. During the term of this
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Agreement DST warrants that the Licensed Software shall
perform in all material respects in accordance with the
Documentation provided to Continuum, provided Continuum has
not modified or altered the Licensed Software. DST's sole
obligation and liability under the preceding sentence is to
use prompt, reasonable efforts to correct any such failure to
perform.
10.2 THE WARRANTY STATED IN SECTION 10.1 ABOVE IS A LIMITED
WARRANTY AND IT IS THE ONLY WARRANTY MADE BY DST. OTHERWISE,
THE SYSTEM IS LICENSED ON AN "AS IS" BASIS ONLY, WITHOUT ANY
EXPRESS OR IMPLIED WARRANTY OF ANY KIND. ALL WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE
EXPRESSLY EXCLUDED.
10.3 EXCEPT FOR THE INDEMNITY PROVIDED BY SECTION 10.6 BELOW AND
EXCEPT FOR LIABILITY FOR PERSONAL INJURY OR DEATH ARISING FROM
ACTS OR OMISSIONS OF DST, ITS AGENTS OR EMPLOYEES,, DST'S
LIABILITY FOR ANY AND ALL LOSSES INCURRED BY CONTINUUM OR ANY
SUB-LICENSEE RESULTING FROM ANY CAUSE WHATSOEVER SHALL IN NO
EVENT EXCEED THE AMOUNT OF ROYALTIES PREVIOUSLY PAID BY
CONTINUUM TO DST UNDER THIS AGREEMENT. EXCEPT TO THE EXTENT
OTHERWISE PROVIDED BY SECTION 10.6 BELOW, IN NO EVENT SHALL
DST HAVE ANY LIABILITY FOR LOSS OF PROFITS, CONSEQUENTIAL,
INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES.
10.4 DST SHALL NOT BE RESPONSIBLE FOR ANY ERRORS OR DEFECTS IN ANY
LICENSED SOFTWARE WHICH HAS BEEN ENHANCED, MODIFIED, UPDATED,
ALTERED OR CHANGED IN ANY WAY BY OR ON BEHALF OF CONTINUUM OR
ANY END USER IF SUCH ERRORS OR DEFECTS RESULT FROM SUCH
ENHANCEMENT, MODIFICATION, UPDATE, ALTERATION, OR CHANGE.
10.5 DST SHALL NOT BE RESPONSIBLE FOR ANY WARRANTY THAT CONTINUUM
OR ANY OF CONTINUUM'S EMPLOYEES OR AGENTS MAKES CONCERNING THE
SYSTEM WHICH GOES BEYOND THE WARRANTIES MADE BY DST PURSUANT
TO SECTION 10.1, AND CONTINUUM HEREBY INDEMNIFIES DST FROM AND
AGAINST ANY CLAIMS OR LIABILITIES ASSERTED BY THIRD PARTIES
ARISING FROM ANY SUCH WARRANTY MADE BY CONTINUUM OR ANY
CONTINUUM EMPLOYEE OR AGENT.
10.6 DST will indemnify and hold Continuum and its Affiliates
harmless against, and DST will at its own expense defend any
action brought against any of them or claims asserted by End
Users against any of them to the extent such action or claim
is based upon any claim that any aspect of the System used
within the scope of this Agreement infringes any trademark,
patent, copyright, licenses or trade secrets; provided, that
DST is promptly notified in writing of any such claim; and
provided, further that DST shall have the exclusive right to
control such defense. In no event shall Continuum or any of
its Affiliates settle any such claim, lawsuit or proceeding
without DST's prior written approval. In the event of any such
claim, litigation or threat thereof, DST shall promptly notify
Continuum and DST may, in its sole and absolute discretion,
either:
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(a) Procure for Continuum, its Affiliates
and their sublicensees a right to continue to use
the System; or
(b) Replace or modify the System so as to
be non-infringing and provide equivalent
functionality; or
(c) (i) If such claim, litigation or threat
alleges infringement worldwide, terminate this
Agreement, require Continuum to terminate all
sublicenses granted hereunder, and refund to
Continuum the Royalties paid to DST by Continuum less
a reasonable amount attributable to Continuum's and
its sublicensee's use of the System prior to
termination based on a ten (10) year amortization
beginning on the date hereof as respects Continuum or
on the date of the sublicense as respects any
Continuum sublicensee; or
(ii) If such claim, litigation or
threat alleges infringement only in a specific
geographic region or regions, terminate this
Agreement as respects such region, require Continuum
to terminate all sublicenses granted hereunder in or
which are used in such region or regions, and refund
to Continuum [INFORMATION OMITTED - CONFIDENTIAL
TREATMENT].
The foregoing states the entire liability and obligations of
DST with respect to infringement of any copyrights, patents,
licenses, or trade secrets by the System or any parts thereof.
11. NON-COMPETITION
11.1 During the term of this Agreement until such time as DST has
revoked Continuum's exclusivity pursuant to Section 2.3,
Continuum shall not act as a distributor or licensing
representative for any third party's software products which
may reasonably be considered to compete with the System
("Competing Products"). If DST revokes Continuum's exclusivity
pursuant to Section 2.3 only as to a specific geographic area
or areas, Continuum shall continue to be restricted from
acting as a distributor or licensing representative for
Competing Products in all areas where exclusivity has not been
revoked by DST.
If during the term of this Agreement Continuum were to develop
and market its own software product which may reasonably be
considered to compete with the System, the exclusivity of the
license granted to Continuum pursuant to Section 2.1 hereof
would terminate and thereafter Continuum's license would be
non-exclusive; provided, however, that the provisions of this
B-12
paragraph shall not apply (a) to Continuum's fulfilling its
existing commitments to provide its Business Process
Management Software or Continuum Workstation Platform Software
to those companies listed on Schedule I attached hereto, or
(b) marketing the Continuum IS/2 Product.
12. AUDIT RIGHTS
12.1 Continuum shall keep full, accurate and complete records and
accounts of all matters relating to the sublicensing of the
System (including the location of all copies of the Licensed
Software). DST or its authorized representatives shall have
the right to inspect and examine such records and accounts
annually upon reasonable notice to Continuum for the purpose
of verifying the correctness of royalties paid to DST and for
the purpose of any other matters arising out of this
Agreement. If non-DST personnel conduct the audit, they will
execute appropriate confidentiality and non-disclosure
agreements. The cost of such audit shall be borne by DST. If
there is a deficiency in payments to DST, then Continuum shall
promptly pay the amount of such deficiency to DST.
12.2 DST shall keep full, accurate and complete records and
accounts of all matters relating to licenses entered by it
which are subject to the payment of commissions, fees or
royalties by DST to Continuum hereunder. Continuum or its
authorized representatives shall have the right to inspect and
examine such records and accounts annually upon reasonable
notice to DST for the purpose of verifying the correctness of
amounts paid to Continuum and for the purpose of any other
matters arising out of this Agreement. If non-Continuum
personnel conduct the audit, they will execute appropriate
confidentiality and non-disclosure agreements. The cost of
such audit shall be borne by Continuum. If there is a
deficiency in payments to Continuum, then DST shall promptly
pay the amount of such deficiency to Continuum.
13. TERM AND TERMINATION
13.1 Unless terminated as provided in Sections 13.2 and 13.3 below
or by mutual written consent of the parties, this Agreement
shall continue in effect for an initial term expiring six
years after the date hereof and thereafter shall be
automatically renewed for successive one year terms unless
terminated by either party by written notice to the other at
least 90 days prior to the expiration of the initial term or
any renewal term hereof.
13.2 Either party may terminate this Agreement with immediate
effect by written notice to the other party if the other party
is in material breach of this Agreement and fails to cure such
breach within sixty (60) days of written notice of such
breach, unless such breach is incurable, in which event the
non-breaching party may immediately terminate this Agreement.
B-13
13.3 Either party may terminate this Agreement with immediate
effect by written notice to the other party in the event that:
(i) the other party shall commence a voluntary proceeding
seeking liquidation, reorganization or other relief
with respect to its debts under any bankruptcy,
insolvency or similar law for the relief of debtors now
or hereafter in effect, or seeking appointment of a
trustee, receiver, liquidator or other similar official
for it or any of its property, or shall consent to have
any such relief, or shall agree on a moratorium with
its creditors, or shall fail generally to pay its debts
as they become due, or shall take any action in
furtherance of any of the foregoing;
(ii) an involuntary case or other proceeding shall be
commenced against the other party seeking liquidation,
reorganization or other relief with respect to it or
its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator or other
similar official over it or any of its property and
such involuntary case or other proceeding shall remain
undismissed for a period of sixty (60) days;
(iii) an order for relief shall be entered against the other
party under any bankruptcy or similar law now or
hereafter in effect;
(iv) the other party is unable, or admits in writing that it
is unable, to pay its debts as they mature;
(v) the other party shall be dissolved or its assets
liquidated;
(vi) any assignment or assumption of the other party's
rights and obligations under this Agreement other than
as permitted by Section 16.2 shall occur by act of the
other party or by operation of law (other than
reincorporation) or by act of any governmental entity
or agency in the Continuum Marketing Area (provided if
the assignment or assumption is the result of operation
of law or act of a governmental entity or agency, the
termination shall be effective only as respects the
geographic area affected); or
(vii) it becomes unlawful under the laws of any governmental
entity or agency for the other party to perform its
obligations hereunder or any enactment, modification or
change in the interpretation of the laws of any
governmental entity or agency in the Continuum
Marketing Area subsequent to the date first above
written interferes with or prohibits the full and
faithful performance by the other party of its
obligations hereunder, in which event the termination
shall apply only to the geographic area affected.
B-14
13.4 Upon the expiration or termination of this Agreement pursuant
to the terms hereof, Continuum shall:
(i) cease immediately use of the System for Continuum's
purposes and Continuum's granting of sublicenses of
the System except to the extent necessary to fulfill
obligations of Continuum (not assumed by DST pursuant
to Section 13.5 hereof) under then existing written
agreements;
(ii) discontinue immediately making any statements or
taking any actions that might cause third parties to
infer that any business relationship continues to
exist between the parties hereto and, where necessary
or advisable, inform third parties that Continuum no
longer has a business relationship with DST and is no
longer authorized to use the System or to sublicense
the right to use the System in the Continuum
Marketing Area.
(iii) within twenty calendar days after the expiration or
termination of this Agreement Continuum shall (a)
delete all copies of the Licensed Software from all
hardware and magnetic media in the possession of
Continuum and shall certify to DST in writing that such
deletion has taken place, and (b) shall return to DST
all Documentation in the possession of Continuum.
Notwithstanding the foregoing, Continuum shall be
entitled to retain a copy of the Licensed Software and
Documentation if necessary to fulfill obligations (not
assumed by DST pursuant to Section 13.5 hereof) to End
Users under the then current term of then existing
agreements, in which event Continuum shall delete
copies of the Licensed Software and return
Documentation to DST as provided above within twenty
(20) days after such obligations to End Users have been
fulfilled.
13.5 Upon the expiration or termination of this Agreement pursuant
to the terms hereof Continuum shall assign to DST at DST's
request all of Continuum' rights in all sublicenses granted
pursuant to this Agreement, provided that DST agrees to assume
all of Continuum's obligations under such sublicenses and to
indemnify Continuum for any breaches of such obligations by
DST after the effective date of such assignment. DST agrees
that, upon termination or expiration of this Agreement it will
offer enhancement and support services to all Continuum
sublicensees under the Agreement to the extent that, on the
standard terms and conditions as, DST offers such services to
DST's end user licensees of the System.
13.6 Notwithstanding the provisions of Section 13.4 and the first
sentence of Section 13.5, if this Agreement is terminated
pursuant to Section 13.1 and if DST and Continuum are unable
B-15
to agree upon the terms and conditions of a renewal or
extension of or substitution for this Agreement and if
Continuum is then in full compliance with the terms and
conditions of this Agreement and requests by written notice to
DST at least thirty (30) days prior to expiration or
termination of this Agreement that this Agreement be extended
perpetually (the "Extension"), then this Agreement shall be
extended with the following modifications and amendments:
(a) The license granted pursuant to Section 2.1 shall no
longer be exclusive;
(b) Continuum shall no longer have the minimum requirements
of Sections 2.2 and 2.3;
(c) Sections 2.5, 2.6, 7.2, 7.3, 8.2, 8.3, 11.1, 12.2 and
16.11 shall be deleted; and
(d) DST shall not be required to provide materials pursuant
to Section 6.7, but any materials voluntarily provided
by DST shall be subject to the second sentence of
Section 6.7.
Upon termination of this Agreement during the Extension, all of the
provisions of Section 13 except this Section 13.6 shall apply.
14. GOVERNING LAW
14.1 This Agreement shall be exclusively governed and interpreted
in accordance with the laws of the State of Missouri,
excluding any conflict of law rules requiring the application
of the laws of any other jurisdiction.
15. DISPUTE RESOLUTION
15.1 Any dispute, controversy or claim arising out of or relating
to this Agreement or a breach hereof shall be finally settled
by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association.
15.2 Unless otherwise agreed by the parties hereto, the arbitral
panel shall consist of three arbitrators, one to be appointed
by each party hereto and the third to be appointed by the two
arbitrators appointed by the parties hereto. In the event that
a party fails to appoint an arbitrator within fifteen calendar
days after any such dispute, controversy or claim has been
referred to arbitration hereunder, then, in such event, the
other party may request the American Arbitration Association
to appoint an arbitrator for the party failing to make such
appointment. In the event that the third arbitrator has not
been appointed within thirty calendar days after any such
dispute, controversy or claim has been referred to arbitration
hereunder, then, in such event, either party hereto may
request the American Arbitration Association to appoint such
third arbitrator.
B-16
15.3 The arbitration proceedings shall be held in Kansas City,
Missouri. All parties hereto shall be entitled to
representation by counsel, to appear and present written and
oral evidence and argument and to cross-examine witnesses
presented by the other party. The arbitral award shall be in
writing and the arbitral panel shall provide written reasons
for its award. The award of the arbitral panel shall be final
and binding upon the parties hereto.
15.4 The provisions of this Article 15 shall survive and bind the
parties hereto, notwithstanding any expiration or termination
of this Agreement. The provisions of this Article 15 shall be
severable and binding on the parties hereto, notwithstanding
that any other provision of this Agreement may be held or
declared to be invalid, illegal or unenforceable.
15.5 Each party irrevocably and unconditionally consents to service
of process upon it in any proceeding brought pursuant to
Sections 9.3 or 15.1 hereof by the mailing of a copy of any
notice or pleadings by registered or certified mail, postage
prepaid, return receipt requested, to it at its address
specified in Section 16.1 hereof. The foregoing shall not
limit the right of each party to serve process in any other
manner permitted by applicable law and shall not limit the
ability of DST to bring any such proceeding or to obtain
execution of any judgment or arbitration award rendered in any
such proceeding in any jurisdiction in which Continuum or any
of its property or assets may be found.
15.6 Continuum specifically waives any claim of forum non
conveniens and specifically consents to jurisdiction and venue
in any federal district court located in Missouri, United
States of America and in any state court of Missouri, United
States of America, for any action or proceeding instituted
pursuant to Section 9.3 hereof.
16. MISCELLANEOUS
16.1 All notices and other communications between the parties
hereto which may be required or permitted under this Agreement
shall be in writing and shall be sent by registered or
certified mail, postage prepaid, return receipt requested, to
the parties at the addresses set forth below or to such other
address as the party to receive such communication has last
designated by notice sent to the other party in accordance
with the foregoing:
B-17
If to DST, to
DST Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
with a copy to:
General Counsel
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇.
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Continuum, to:
The Continuum Company, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: President
with a copy to:
General Counsel
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
16.2 (a) The parties acknowledge that This Agreement pertains to
technology and the rights granted by DST are personal to
Continuum. This Agreement or any interest herein may not be
assigned by Continuum in whole or in part without the prior
written consent of DST. Continuum shall have the right upon
written notice from time to time, to grant to any of its
Affiliates designated in such notice the right to exercise
any of Continuum's rights under Section 2.1 provided (a) the
source code for the Licensed Software may not be provided to
such Affiliate except to the extent necessary for the
Affiliate to provide maintenance to End Users, from regional
maintenance locations approved in writing by DST (which
approval will not be unreasonably withheld), (b) such
Affiliate shall be bound by and shall observe all of the
obligations of Continuum under this Agreement with respect
to any such sublicense, and (c) Continuum shall remain
responsible for all of its obligations hereunder with
respect to any such sublicenses and the conduct of any such
Affiliate with respect to any such sublicenses.
(b) This Agreement may not be assigned by DST without the prior
written consent of Continuum, which consent shall not be
unreasonably withheld; provided, that DST may assign this
Agreement to an Affiliate or in connection with a merger of
DST or a sale of substantially all of the assets of DST.
(c) Any assignment in violation of this Section 16.2 shall be
void.
B-18
16.3 The failure or delay of either party hereto to require
performance by the other party hereto shall not affect the
rights of such party to require performance and to enforce
its rights with respect to such provision unless and until
such performance has been waived in writing by such party.
Any waiver of a failure or delay in performance hereunder
shall be effective only in accordance with its terms and may
be restricted or conditioned in any way. No waiver of any
failure or delay in performance hereunder shall constitute
waiver of a continuance or reoccurrence of such failure or
delay or of any other failure or delay, except as provided
in such waiver. The rights granted to each party hereunder
and any rights available to it at law or in equity shall be
cumulative and may be exercised in whole or in part from
time to time.
16.4 Neither party shall be in default by reason of any failure
in performance of this Agreement in accordance with its
terms (other than a required payment of money) if such a
failure arises out of causes beyond the control and without
the fault or negligence of such party. Such causes may
include, but are not restricted to, acts of God or of a
public enemy, acts of a government, fires, floods,
epidemics, quarantine restrictions, strikes, freight
embargoes and unusually severe weather, but in every case
the failure to perform must be beyond the control and
without fault or negligence by the party failing to perform.
16.5 The relationship between DST and Continuum shall be
construed solely as that of licensor and licensee. This
Agreement does not create a partnership, joint venture,
agency or similar type of relationship and this Agreement
shall not be construed as constituting either party as a
partner of the other or as creating any other form of legal
association that would impose liability upon one party for
the acts or omissions of the other. All rights not expressly
granted in this Agreement to Continuum are reserved to DST.
Continuum shall have no right, power or authority to
obligate DST in any way to any contract, term or condition
not set forth herein.
16.6 This Agreement, including any and all schedules referred to
herein and attached hereto, each of which is incorporated
herein by reference for all purposes as if fully and
expressly set forth herein, constitutes the entire
understanding and agreement between the parties hereto with
respect to the subject matter hereof. There are no
representations, agreements, arrangements or understandings,
oral or written between or among the parties hereto relating
to the subject matter of this Agreement which are not fully
expressed herein. [INFORMATION OMITTED - CONFIDENTIAL
TREATMENT].
B-19
16.7 Subject to Section 16.2 hereof, this Agreement shall be
binding upon and inure to the benefit of the parties hereto
and their respective successors in interest and permitted
assigns.
16.8 This Agreement cannot be modified or amended except by a
written agreement signed by each party hereto.
16.9 This Agreement may be executed in two counterparts and each
counterpart shall constitute an original of the Agreement
but both such counterparts shall together constitute one and
the same agreement.
16.10 If any provision of this Agreement is held invalid, illegal,
or unenforceable by a court or governmental agency in any
jurisdiction, the validity, legality, and enforceability of
the remaining provisions of this Agreement shall, with
respect to such jurisdiction, be unimpaired by such holding
and the invalid, illegal, or unenforceable provision shall
be replaced by a mutually acceptable provision as respects
such jurisdiction, which being valid, legal and enforceable,
comes closest to the intention of the parties underlying
such invalid, illegal, or unenforceable provision. If,
however, any of Sections 2.2, 2.3, 2.4, 3.1, 3.2, 3.3, 3.4,
9.1, 9.3, 10.1, 10.2, 10.3, 10.4, 13.4, 13.5, or 16.2 are
held invalid, illegal, or unenforceable in any jurisdiction
(and the parties do not promptly agree on a replacement
provision), DST may, upon thirty (30) days written notice to
Continuum, terminate this Agreement as respects such
jurisdiction.
16.11 If Continuum arranges for the sale of any equipment by or
through DST to an End User which is sublicensed to use the
System under this Agreement, DST shall pay to Continuum a
commission equal to [INFORMATION OMITTED - CONFIDENTIAL
TREATMENT].
16.12 [INFORMATION OMITTED - CONFIDENTIAL TREATMENT].
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the date first above written.
DST SYSTEMS, INC.
By: ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: CIO
THE CONTINUUM COMPANY, INC.
By: W. ▇▇▇▇▇▇▇ ▇▇▇▇
Name: W. ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Chief Executive Officer
B-20
LIST OF SCHEDULES AND EXHIBITS
Schedule A-1 Health and/or Accident Insurance Companies
Schedule A-2 Licensed Software
Schedule B Requirements for Exclusivity
Schedule C Retained Marketing Rights; Distributors
Schedule D Required Sublicense Terms
Schedule E Recommended Sublicense Prices
Schedule F Royalties
Schedule G Enhancement and Support Services
Schedule H Recommended Fees for Enhancement and Support Services
Exhibit X Description of ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, and Level 3 Support
Exhibit Y Third Party Confidentiality Agreement
Exhibit Z Master Escrow Agreement
B-21
SCHEDULE A-1
CONTINUUM HEALTH CLIENTS
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
B-22
SCHEDULE A-2
LICENSED SOFTWARE
The DST Automated Work Distributor(TM)(AWD(R)) System, which includes
the following components:
AWD/Client-Server (platform Independent)
- Image Inclusive
- Image Exclusive
- Image View Only
AWD/FAX
AWD/MIS
AWD/PRINT
AWD/SCAN
- Low
- Mid
- High
AWD/VIEW
AWD/LINK
CSW
Encorr
All future releases of AWD as identified in the published product availability
will also be included in the Licensed software and the software will be
available on any Platform that DST has published as supporting. Any additional
components provided to Continuum not in the published product plan will be
subject to agreement between DST and Continuum.
The Licensed Software shall also include enhancements and new versions of the
components listed above which may be delivered from time to time by DST to
Continuum.
B-23
SCHEDULE B
REQUIREMENTS FOR EXCLUSIVITY
Continuum is required to execute sublicenses for the System (and pay
the required royalty to DST) with at least twenty (20) End Users, with an
aggregate of at least two thousand (2,000) work stations installed or for which
license revenue has been paid, prior to June 30, 1995, in order to retain
Continuum's exclusive right to market and sublicense the System to End Users
during the twelve (12) month period immediately following June 30, 1995.
Installations of AWD at [INFORMATION OMITTED - CONFIDENTIAL TREATMENT] will
count in the number of End Users and work stations for the period ending June
30, 1995. For the twelve (12) months commencing July 1, 1995, and for each
twelve (12) month period thereafter (the "Measuring Periods"), Continuum must
execute sublicenses for the System (and pay the required royalty to DST) with at
least [INFORMATION OMITTED - CONFIDENTIAL TREATMENT] new End Users, with an
aggregate of at least the number of additional workstations installed, or for
which license revenue has been paid, indicated below, in order to retain its
exclusive right to market and sublicense the System to End Users during the
twelve (12) month period immediately following each such Measuring Period:
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
In addition to the requirements in the preceding paragraph, the
sublicenses of the System executed by Continuum with End Users during the period
through June 30, 1995 must be geographically located as follows: At least
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT] sublicenses in North America; at
least [INFORMATION OMITTED - CONFIDENTIAL TREATMENT] sublicenses in Europe; and
at least [INFORMATION OMITTED - CONFIDENTIAL TREATMENT] sublicenses in other
countries. During Measuring Periods after June 30, 1995, of the [INFORMATION
OMITTED - CONFIDENTIAL TREATMENT] new End Users, at least [INFORMATION OMITTED -
CONFIDENTIAL TREATMENT] sublicenses must be in North America; at least
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT] sublicenses in Europe; at least
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT] sublicenses in other countries;
and the remaining [INFORMATION OMITTED - CONFIDENTIAL TREATMENT] sublicenses may
be in any country.
B-24
SCHEDULE C
COMPANIES TO WHICH
MARKETING RIGHTS ARE RETAINED
A. NORTH AMERICA, CANADA AND SOUTH AFRICA
1. DST shall retain exclusive marketing rights to the following companies
throughout the term of this Agreement:
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
2. If either DST licenses or Continuum sublicenses the System to any of
the following companies throughout the term of this Agreement,
Continuum will receive [INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
and DST will receive [INFORMATION OMITTED - CONFIDENTIAL TREATMENT] of
all System license fees and net margins on hardware received from such
companies during the term of this Agreement:
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
B. EUROPE
1. DST shall retain exclusive marketing rights to the following companies
throughout the term of this Agreement:
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
2. DST shall retain exclusive marketing rights to the Companies listed
below in this Section B.2; provided, however, that DST's exclusive
marketing rights shall end on May 1, 1994 after which date either DST
or Continuum may market the System to such Companies; provided,
further, that if DST enters a license agreement for the System with any
such companies prior to May 1, 1994, DST shall pay Continuum a
commission as follows:
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
After May 1, 1994, DST will pay a commission of [INFORMATION OMITTED -
CONFIDENTIAL TREATMENT].
The Companies included under the terms of this Section B.2. are as
follows:
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
B-25
CURRENT DISTRIBUTORS
1. [INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
B-26
SCHEDULE D
REQUIRED SUBLICENSE TERMS
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
B-27
SCHEDULE D-X
NONDISCLOSURE AGREEMENT
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
B-28
SCHEDULE E
RECOMMENDED SUBLICENSE PRICES
See Attached Schedule.
The prices set forth in the attached Schedule may be modified for specific
geographic regions by written agreement of DST and Continuum executed by an
authorized person identified in Section 16.6.
B-29
SCHEDULE E - CONTINUED
DST SYSTEMS, INC.
U.S. SOFTWARE PRICE SCHEDULE
(EFFECTIVE FEBRUARY 19, 1995)
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
B-30
SCHEDULE F-1
CONTINUUM USE ROYALTIES
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
B-31
SCHEDULE F-2
SUBLICENSE ROYALTIES
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
B-32
SCHEDULE G-1
ENHANCEMENT AND SUPPORT SERVICES
Services to users included in the Enhancement and Support Agreement to be
provided by Continuum.
- Telephone hotline support to receive and log problems.
- All enhancements updates generally made available by DST under
its annual enhancement and support services program for the
applicable licensed products.
- Permanent program fixes as applicable.
- System and User Documentation update service for the original
set of manuals.
These services should generally be provided as set forth in the Automated Work
Distributor (AWD) Support Guide, Schedule G-2.
B-33
SCHEDULE G-2
AUTOMATED WORK DISTRIBUTOR (AWD)
SUPPORT CENTER GUIDE
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
B-34
SCHEDULE H
RECOMMENDED FEES FOR ENHANCEMENT AND SUPPORT SERVICES
The recommended fee for the provision of enhancement and support
services to a sublicensee is an annual fee of 18% of the aggregate of the then
current license fees for the System set forth on Schedule E, as revised from
time to time pursuant to the Agreement (taking into account the number of the
sublicensee's workstations using the System).
Such annual fee shall be payable annually, in advance. In the event a
sublicensee adds additional workstations using the System, the recommended fee
for enhancement and support services shall be increased accordingly.
The recommended fee may be increased by DST upon written notice to
Continuum; provided that such increase may not be more often than once each
twelve (12) months and the increase shall not be more than [INFORMATION OMITTED
- CONFIDENTIAL TREATMENT].
B-35
SCHEDULE I
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
B-36
EXHIBIT X
DESCRIPTION OF ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇ AND LEVEL 3 SUPPORT
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
▇-▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇ - ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
CONFIDENTIALITY AGREEMENT
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
▇-▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇ - ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ OTHER THIRD PARTIES
CONFIDENTIALITY AGREEMENT
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
B-39
EXHIBIT Z
MASTER ESCROW AGREEMENT
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
[INFORMATION OMITTED - CONFIDENTIAL TREATMENT]
B-40