Exhibit 99.9
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F. R.
Sections 200.80(b)(4), 200.83
and 240.24b-2
ODS NETWORKS, INC.
PARTNERSPLUS AGREEMENT
Effective Date: September 25, 1998
BETWEEN: ODS Networks, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Hereafter "ODS")
AND: Science Applications International Corporation.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Hereafter "SAIC")
EXHIBITS
A. PRODUCT LIST PRICES AND DISCOUNTS
B. ORDER LEAD-TIMES
TABLE OF CONTENTS
Page
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1. PURPOSE 2
2. DEFINITIONS 2
3. LICENSE GRANT 3
4. END-USER SUBLICENSE RESTRICTIONS 4
5. TERM 4
6. ORDERING, SCHEDULING, AND FORECASTING 4
7. PRICES, PAYMENT, AND TAXES 5
8. PACKING AND SHIPMENT 6
9. CHANGE CONTROL 6
10. INSPECTION AND TESTING 6
11. PRODUCT SUPPORT 7
12. WARRANTIES 7
13. OUT-OF-WARRANTY REPAIR 9
14. PROPRIETARY INFORMATION 9
16. PATENT, COPYRIGHT AND TRADE SECRET INDEMNIFICATION 11
17. TERMINATION AND CANCELLATION 12
18. INDEMNIFICATION AND INSURANCE 13
19. MOST FAVORED CUSTOMER 13
20. DISPUTE RESOLUTION 14
21. LIMITATION OF LIABILITY 14
22. FINDER'S FEES 14
23. GENERAL 15
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1. PURPOSE
This PartnersPlus Agreement and its exhibits (hereby incorporated by
reference) (this "Agreement") set forth the agreement of SAIC and ODS with
respect to the terms and conditions pursuant to which ODS shall provide
Products to SAIC for internal use or distribution by SAIC. This Agreement
shall govern ODS, SAIC, and any subsidiary or business unit of SAIC that
uses or distributes the Products. This Agreement establishes a non-
exclusive relationship between the parties. Accordingly, nothing in this
Agreement shall be construed as limiting in any manner ODS' appointment of
other dealers, distributors, licensees or agents or SAIC's marketing or
distribution activities (except as provided in Articles 14 and 15 hereof).
2. DEFINITIONS
2.1 "EQUIPMENT" PRODUCTS ARE LISTED IN EXHIBIT A AND AS MAY BE REVISED
HEREAFTER.
2.2 "CONVEYED ITEMS" MEANS THE SOFTWARE ODS OBTAINED FROM SAIC PURSUANT
TO THE ASSET AND SECURITIES PURCHASE AGREEMENT BETWEEN THE PARTIES OF EVEN
DATE HEREWITH ("A&SPA") AND WHICH ARE SET FORTH ON THE CD-ROMs ATTACHED
THERETO THAT ARE ALSO KNOWN AS "COMPUTER MISUSE AND DETECTION SYSTEM"
("CMDS"), "VULNERABILITY ASSESSMENT SYSTEM" ("VAS"), "AUDIT MONITORING AND
INTRUSION DETECTION SYSTEM" ("AMIDS") AND "MALICIOUS CODE DETECTION AND
ERADICATION SYSTEM" ("MCDES") AND THE DOCUMENTATION PERTAINING TO EACH OF
THE FOREGOING AND/OR ANY IMPROVEMENTS THERETO AS DEFINED IN THE SOFTWARE
ROYALTY, GRANT BACK AND IMPROVEMENTS LICENSE AGREEMENT BETWEEN THE PARTIES
OF EVEN DATE HEREWITH ("SRGBLA").
2.3 "LICENSED SOFTWARE" PRODUCTS ARE LISTED IN EXHIBIT A AND AS MAY BE
REVISED HEREAFTER. LICENSED SOFTWARE INCLUDES CONVEYED ITEMS.
2.4 "DOCUMENTATION" MEANS VISUAL OR MACHINE READABLE MATERIALS
DEVELOPED BY OR FOR ODS OR LICENSED TO ODS FOR USE IN CONNECTION WITH THE
EQUIPMENT AND LICENSED SOFTWARE AS WELL AS ALL REVISIONS TO REFLECT
CHANGES.
2.5 "PRODUCTS" MEANS EQUIPMENT, LICENSED SOFTWARE, AND DOCUMENTATION.
2.6 "CORRECTION" MEANS CHANGES TO PRODUCTS TO CONFORM TO
SPECIFICATIONS.
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2.7 "IMPROVEMENT" MEANS AN ADDITION OR CHANGE TO PRODUCTS INTENDED TO
IMPROVE PERFORMANCE.
2.8 "ENHANCEMENT" MEANS A NEW FUNCTION OR FEATURE FOR PRODUCTS WHICH
PROVIDES A NEW CAPABILITY WHICH MAY BE INCORPORATED BY MODIFICATION OF
EXISTING PRODUCTS OR DEVELOPMENT OF NEW PRODUCTS.
2.9 "UPDATE" MEANS A NEW RELEASE LEVEL OF SOFTWARE WHICH INCORPORATES
ACCUMULATED CORRECTIONS, IMPROVEMENTS AND ENHANCEMENTS TOGETHER WITH
REVISED DOCUMENTATION FOR THE UPDATE.
2.10 "END-USER" MEANS AN ENTITY ACQUIRING PRODUCTS FOR ITS OWN
PRODUCTIVE USE.
2.11 "PROPRIETARY INFORMATION" MEANS THAT INFORMATION WHICH THE
DISCLOSING PARTY HAS NOT RELEASED PUBLICLY AND WHICH IT CONSIDERS TO BE
PROPRIETARY AND/OR CONFIDENTIAL.
2.12 "SPECIFICATIONS" MEANS ODS' PUBLISHED SPECIFICATIONS, DOCUMENTATION
AND LITERATURE RELATING TO THE PRODUCTS.
2.13 "NON-CONFORMING PRODUCT" MEANS A PRODUCT WHICH DOES NOT CONFORM TO
THE SPECIFICATIONS AND LITERATURE PUBLISHED BY ODS FOR THE PRODUCT.
3. LICENSE GRANT
3.1 LICENSE. Subject to all the terms and conditions of this
Agreement, ODS grants to SAIC a nonexclusive, nontransferable,
sublicensable license: (i) to distribute Licensed Software only in object
and/or executable code form and bundled with (or for use only with)
Equipment and/or with SAIC's hardware and software products for SAIC's
internal use or for use by End-Users and (ii) to use the Licensed Software
only for the purpose of testing or demonstrating to prospective end-users
in accordance with documentation provided by ODS. Products are licensed
for distribution or internal use only and SAIC is not entitled to receive
any source code or source documentation relating to the Licensed Software.
3.2 RETENTION OF TITLE. Notwithstanding anything else, ODS and its
licensors retain (i) all title and rights to the Products, all copies and
derivative works thereof (by whomever produced), including any
Improvements, Enhancements, and Updates, and all related documentation and
materials, (ii) all of their service marks, trademarks, trade names or any
other designations, and (iii) all copyrights, patent rights, trade secret
rights and other proprietary rights in the Products.
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3.3 COPYING. Whenever Licensed Software is licensed to permit SAIC to
copy the Licensed Software, SAIC may make copies of the Licensed Software
in machine readable form together with copies of the Documentation included
in the definition of such Licensed Software solely for purposes of
distribution of the Products as provided herein. Upon providing reasonable
advance notice to SAIC, ODS shall be entitled to inspect SAIC's books and
records during SAIC's normal business hours to audit SAIC's compliance with
this provision for copying Licensed Software.
4. END-USER SUBLICENSE RESTRICTIONS
Unless otherwise agreed by ODS, no distribution or license of Licensed
Software by SAIC will be made except pursuant to a written end-user
agreement in such form as is mutually satisfactory to ODS and SAIC.
5. TERM
This Agreement shall commence on the Effective Date, and shall continue
thereafter until the earlier to occur of (i) the date that SAIC no longer
holds at least five percent (5%) of the outstanding common stock of ODS, or
(ii) thirty (30) days after the date SAIC delivers to ODS written notice of
termination; or (iii) the date ODS and SAIC agree in writing to terminate
this Agreement; provided, however, that with respect to the provisions of
Article 22, this Agreement shall continue in full force and effect for so
long as necessary to resolve any matters relating to said Article 22
notwithstanding the occurrence of any event of termination previously
stated herein.
6. ORDERING, SCHEDULING, AND FORECASTING
6.1 ORDER. Products will be ordered by individual purchase orders
(including change orders, collectively "Orders") issued to ODS from time to
time during the term of this Agreement by SAIC. The terms of this
Agreement supersede all preprinted terms of Orders, acknowledgments,
quotations, invoices and commercial documents and shall be applicable to
each Order whether or not this Agreement is specifically referenced in an
Order.
6.2 TRANSACTION DESCRIPTION. Each Order shall specify quantity,
delivery schedule, destination, price and any special requirements
necessary to adequately describe the transaction.
6.3 FACSIMILE ORDERS. ODS may accept and perform against facsimile
Orders and SAIC shall promptly confirm such by delivery to ODS of the
original written Orders; however, failure by SAIC to so deliver the
original written order will not relieve SAIC of its obligations under
facsimile orders accepted by ODS.
6.4 PRODUCT LEAD-TIME. Delivery schedules are subject to a minimum
lead-time requirement for each type of Product as set forth in EXHIBIT B.
If an Order requests earlier delivery, then ODS shall accept the early
delivery schedule or offer a different delivery schedule within five (5)
business days from receipt of such Order, such different delivery
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schedule shall be subject to SAIC acceptance, which SAIC will accept
within the time period specified in the notice of the different delivery
schedule.
6.5 FORECAST. SAIC will provide a non-binding forecast to ODS at least
quarterly by the fifteenth (15th) day of the month preceding each calendar
quarter for Price List items (as defined in Exhibit A) it anticipates
purchasing during the next three (3) month period. The forecast will set
forth the ODS part number, description, quantity, and, if known by SAIC at
the time of submission of the forecast, anticipated shipping day of each
item it anticipates will be purchased.
6.6 RESCHEDULING. SAIC may issue a written change order to reschedule
delivery, without additional charge or increase in unit price with written
notice at least 30 days prior to the original scheduled ship date and with
a ship date no more than 60 days after the original scheduled ship date.
Rescheduling a ship date between 29 and 15 days of scheduled ship date is
subject to a 10% rescheduling charge. There will be no rescheduling within
15 days of scheduled ship date. In no event will rescheduling exceed 60
days from original scheduled ship date.
6.7 RETURNS. SAIC may return unopened Products or Non-Conforming
Products subject to Section 10.4.1 upon the prior written approval of ODS
in the form of a Return Material Authorization ("RMA") for credit within 30
days of SAIC's receipt of the Products at no additional charge. Conforming
Products returned between 30 and 60 days will require a 15% restocking fee
based on the list price of the Products. Any conforming Products shipped
to SAIC after 60 days can not be returned for credit. All Products must be
returned to ODS' corporate facility in Richardson, Texas and must have an
RMA number attached.
7. PRICES, PAYMENT, AND TAXES
7.1 PRICES. The list prices for Products will be ODS' published price
on the date of the Order. List prices and discounts for Products in effect
on the date of this Agreement are set forth in EXHIBIT A. Prices are F.O.B.
Richardson, TX and, subject to Section 8 hereto, include standard packaging
and packing suitable for shipment by common carrier. The discount offered
to SAIC will, at all times, be in compliance with Section 19 of this
Agreement. Price revisions may be made on the ODS Web Site at ▇▇▇.▇▇▇.▇▇▇.
7.1.1 Prices will not be increased by ODS for a period of one
(1) year from the date of the last price increase. The prices
listed on EXHIBIT A will not be increased by ODS for a period of
one (1) year from the date of this Agreement.
7.2 PAYMENT. ODS may invoice SAIC for Products no earlier than the
date Products are shipped by ODS. ODS may invoice SAIC for services and
other amounts chargeable to SAIC in accordance with this Agreement and the
Orders. Each ODS invoice will reference the specific SAIC Order number, if
any.
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7.2.1 Invoices are due and payable within thirty (30) days
from receipt by SAIC provided conforming Products or services
have been delivered or provided by ODS.
7.3 TAXES. Taxes applicable to SAIC's Order (excluding taxes based on
ODS' net income) shall be separately stated on each invoice. SAIC will
provide an exemption certificate when SAIC is exempt from the imposition of
any tax.
8. PACKING AND SHIPMENT
8.1 SHIPMENT. ODS shall ship Products, in the absence of written
instruction from SAIC, in a manner consistent with ODS' usual shipping
practices.
8.2 TRANSPORTATION CHARGES. If SAIC directs the use of specific
carriers or premium mode of transportation or packaging, SAIC will pay the
incremental charges, if any.
9. CHANGE CONTROL
9.1 CONTROL. ODS shall deliver to SAIC Products which meet the
Specifications for same. ODS shall not make or incorporate any changes to
Products contained in orders which affect form, function, interface,
interchangeability, integration with SAIC Products, reliability or
maintainability without SAIC's prior written approval, which shall not be
unreasonably withheld.
9.1.1 Other types of changes may be incorporated into
Products at ODS' expense without prior written notice provided
the unit price to SAIC is not increased because of such changes.
10. INSPECTION AND TESTING
10.1 ODS INSPECTION. ODS shall manufacture, inspect and test Products
to assure conformance with the Specifications and in accordance with the
current ODS Quality Assurance Manual prior to shipment to SAIC.
10.2 PRODUCT FAILURE. If SAIC submits certain Products which have
failed during SAIC test attempt or during normal operation along with
information describing failure, ODS shall promptly investigate and attempt
to determine the nature and cause of the failure and shall take appropriate
corrective action to prevent reoccurrence of a diagnosed failure.
10.3 PRODUCT TESTING. ODS' manufacture and testing of Products to be
delivered to SAIC may be witnessed by SAIC at ODS' facility at all
reasonable times, on a noninterference basis.
10.4 ACCEPTANCE INSPECTION. SAIC shall conduct acceptance inspection
within thirty (30) days of receipt of Products. The failure of the SAIC to
conduct this inspection within said thirty (30) days constitutes
acceptance.
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10.4.1 In the event of a failure, SAIC will contact ODS for a
RMA prior to the return of defective items for repair. SAIC will
furnish the following information, ODS part number, SAIC contact
with phone number, return address, part serial number,
quantities, and description of defect or failure.
10.4.2 No Trouble Found (NTF): In the event ODS determines
after inspection and testing of a Product returned as defective
or non-conforming that such was NTF, then ODS will invoice SAIC
$150.00 for each item tested.
11. PRODUCT SUPPORT
11.1 PERSONNEL. All technical services shall be performed by qualified
personnel who are experienced with the subject matter of the services to be
provided.
11.2 TELEPHONE TECHNICAL SUPPORT SERVICES. Technical support services
ordered by SAIC will be provided in accordance with the following:
11.2.1 Technical support will be available from ODS to SAIC
during ODS' normal business hours (8:00 a.m. to 6:00 p.m. CST
time, Monday through Friday, national holidays excepted) for
minor problems and technical assistance. When an emergency or
major problem is reported or technical assistance is needed
outside of ODS' normal business hours, pager coverage will be
provided by ODS.
11.2.2 ODS will provide SAIC with technical support within
thirty (30) minutes after ODS is notified during ODS' normal
business hours and within one (1) hour after ODS has been
notified outside ODS' normal business hours.
11.3 ON-SITE AND ADDITIONAL SUPPORT SERVICES. ODS offers numerous
NETShield service and support programs (as currently described at
▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇_▇▇▇▇.▇▇▇▇▇). SAIC may order and purchase any
applicable service program from ODS at a mutually agreed upon discount from
list prices. Otherwise, SAIC will pay ODS time and material charges and
reimburse reasonable travel and living expenses incurred for on-site
technical assistance requested by SAIC.
11.4 CONSULTING AND TRAINING SERVICES. ODS shall provide consulting and
training services generally offered by ODS. All such consulting and
training services shall be billed on a time and materials basis unless the
parties expressly agree otherwise in writing.
12. WARRANTIES
12.1 EQUIPMENT. ODS warrants Equipment shall meet the Specifications
and be free of defects in materials and workmanship, under normal use and
service, for a period of twelve (12) months from the date of shipment.
This warranty does not cover damage during the
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warranty period from improper installation, misuse, accident or
modifications or repairs by unauthorized persons.
12.1.1 Third party items purchased through ODS but not
incorporated into the Products will carry that item's warranty as
provided by the original manufacturer.
12.2 SOFTWARE.
12.2.1 ODS warrants that Licensed Software (excepting Conveyed
Items), for twelve (12) months from the date of shipment, in the
unaltered form provided by ODS, will (i) meet the Specifications
for such Licensed Software and (ii) will interface and operate
with Equipment specified for such Licensed Software.
12.2.2 Other than the Conveyed Items, ODS represents it has
title or sufficient rights to Licensed Software and Proprietary
Information to grant the licenses to SAIC.
12.3 SOLE OBLIGATION. ODS' SOLE OBLIGATION UNDER THIS WARRANTY
PROVISION WILL BE TO PROVIDE THE REMEDIES DESCRIBED IN THIS ARTICLE 12.
EXCEPT FOR THE EXPRESSED WARRANTIES STATED IN THIS ARTICLE 12, ODS
DISCLAIMS ALL WARRANTIES, EXPRESSED, IMPLIED, OR STATUTORY, WITH RESPECT TO
ITS PRODUCTS AND SERVICES (INCLUDING CONVEYED ITEMS), INCLUDING WITHOUT
LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
12.4 MEDIA WARRANTY. ODS warrants the tapes, diskettes or other media
to be free of defects in materials and workmanship under normal use for 90
days from the Commencement Date.
12.5 NO VIRUSES. ODS is not aware of, and will take all commercially
reasonable measures to identify and eliminate, any viruses from any media
or other delivery systems used in the delivery to SAIC of any Products
(excepting Conveyed Items) hereunder; for purposes of this section, a
"virus" is an extraneous and undocumented potentially damaging code or
program the effect of which may be the destruction of computer data or the
permanent or temporary disabling of a computer system, including but not
limited to "time bombs," "logic bombs," and other computer viruses.
12.6 NO DISABLING DEVICES. ODS is not aware of, and shall take all
commercially reasonable measures to identify and eliminate any security
mechanisms imbedded in the Products (excepting Conveyed Items), including
but not limited to, copy protect mechanisms, encryptions, time-activated
disabling devices or other codes, instructions or devices which may disable
the Products or other software or erase or corrupt data.
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12.7 SERVICES WARRANTY. ODS warrants that its technical support,
training and consulting services will be performed consistent with
generally accepted industry standards. This warranty shall be valid for 90
days from performance of service.
12.8 YEAR 2000. ODS warrants that each Product (excepting Conveyed
Items) will promptly and properly perform all of the functions described in
the Specifications without any degradation in the performance or features
of the Product before, upon the occurrence of, during and after calendar
year 2000, it being understood and agreed that this warranty provision will
expressly continue until December 31, 2002 whether or not software or
hardware maintenance services are purchased by SAIC (the "Year 2000
Warranty"). This warranty will continue until December 31, 2002. In the
event of ODS' breach of this Year 2000 Warranty, ODS will repair or replace
any nonconforming component, at ODS' expense within five (5) days of ODS'
receipt of a written request from SAIC. SAIC may require ODS to refund all
of the amounts paid to ODS for Products distributed by SAIC and, with
respect to Products used internally by SAIC, the amount equal to all
payments to ODS depreciated on a straight-line basis over five years for
nonconforming Product returned to ODS by SAIC under this Agreement within
ten (10) days after the date SAIC determines that the Product does not
perform as required hereunder and ODS has not cured the nonconformity in
the time permitted. Notwithstanding the foregoing, SAIC acknowledges and
agrees that (i) the Product does not identify or remedy Year 2000 problems
in third party systems or other products or applications not provided or
supplied by ODS and (ii) the Product operates with the date information it
receives; thus, if incorrect date information is provided by the user, the
system or from any other external product or other source, this information
will be used by the Product as received. The foregoing Year ▇▇▇▇ ▇▇▇▇▇▇▇▇
of ODS shall not apply to Year 2000 problems caused by such external
sources.
12.9 NO CONFLICT. ODS represents and warrants that it is under no
obligation or restriction, nor will it assume any such obligation or
restriction that does or would in any way interfere or conflict with, or
that does or would present a conflict of interest concerning, the services
to be performed or Products to be delivered by ODS under this Agreement.
13. OUT-OF-WARRANTY REPAIR
13.1 ODS shall provide out-of-warranty repair and refurbishment services
for Equipment at the then prevailing rates if such Equipment is not covered
by an ODS service and support program pursuant to Section 11.3 of this
Agreement. SAIC shall issue an Order authorizing repair and/or
refurbishment and will ship Products to ODS freight prepaid. ODS shall
complete services and return Products to SAIC within thirty (30) days of
receipt. SAIC shall have risk of loss until returned Products are received
by ODS. ODS shall have risk of loss from receipt of returned Products
until repaired or replaced Products are received by SAIC.
13.1.1 ODS warrants repaired Equipment will conform to
applicable Specifications and be free from defects in material
and workmanship for a period of ninety (90) days from ODS
shipment.
14. PROPRIETARY INFORMATION
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14.1 All Proprietary Information disclosed by either party to the other
in tangible form shall be clearly marked "Proprietary", "Confidential", or
"Restricted" or with a similar legend. If Proprietary Information is
disclosed in other than tangible form, then the disclosing party shall
inform the receiving party that the information is Proprietary Information
at the time of disclosure and shall describe such information in writing
delivered to the receiving party within fifteen (15) days after disclosure
to be entitled to enforce the rights and obligations under this section.
14.2 Neither party shall disclose any Proprietary Information which it
does not have the right to disclose and shall defend and indemnify the
receiving party against any claim or liability resulting from breach of
this obligation.
14.3 The disclosing party shall retain title to its Proprietary
Information.
14.4 Proprietary Information shall be protected against disclosure to
unauthorized persons using the same standard of care as the receiving party
uses to protect its own Proprietary Information of equivalent importance,
but in no event less than reasonable care.
14.5 The obligation not to disclose Proprietary Information shall not
apply to Proprietary Information: (i) already known by or available to the
receiving party at the time of disclosure; (ii) independently developed by
the receiving party or an affiliated entity and not derived from any
Proprietary Information supplied by the disclosing party; (iii) known or
available to the public, or which may become available to the public,
except where such knowledge or availability is the result of an
unauthorized disclosure by the receiving party; (iv) disclosed to the
receiving party or to an affiliated entity without a nondisclosure
restriction by a third party having the right to disclose; (v) made
available by the disclosing party to a third party without a nondisclosure
restriction; or (vi) to the extent required to be disclosed by law,
regulation, court order or other legal process provided the disclosing
party is given prior written notice and the opportunity to intervene to
protect its interest in nondisclosure. Notwithstanding the above and
subject to the provisions of the A&SPA and the agreements provided for
therein, ODS Proprietary Information includes ODS' rights in the Conveyed
Items and Improvements created by ODS or any portion thereof subject to
SAIC retaining the right to freely use for any purpose the residuals
resulting from access to or work with any Conveyed Items or Improvements
created by SAIC so long as such residuals are not used to create computer
programs that perform substantially the same functions in substantially the
same way, to achieve the same or substantially the same result as the
Conveyed Items or Improvements created by ODS. The term "residuals" means
technical information related to any Conveyed Items or Improvements created
by SAIC in non-tangible form, which may be retained by persons who have had
access to any Conveyed Items or Improvements created by SAIC, including
ideas, concepts, know-how, or techniques contained therein. Neither party
shall have any obligation to limit or restrict the assignment of such
persons or to pay royalties for any work resulting from the use of
residuals. Nothing in the foregoing shall, however, be deemed to be the
grant of a license under the copyrights and patent application conveyed
under the A&SPA.
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15. SAIC OBLIGATIONS
15.1 The following restrictions do not apply to the license grants under
the SRGBLA. SAIC agrees not to (i) disassemble, decompile or otherwise
reverse engineer the Products or otherwise attempt to learn the source
code, structure, algorithms or ideas underlying the Products except as may
be necessary to achieve interoperability between the Software and another
independently created software program, (ii) rent, lease or otherwise
provide temporary access to a Product, (iii) take any action contrary to
ODS' or its licensors' end-user license agreement (which ODS shall provide
to SAIC on a current edition basis as and when issued) except as allowed
under this Agreement (iv) copy, alter or modify the Products except as may
be necessary to achieve interoperability between the Products and another
independently created software program or (v) allow others to do any of the
foregoing.
15.2 SAIC will be responsible for all technical support of its
customers; ODS will provide technical support and assistance to SAIC
pursuant to ODS's standard support and maintenance terms and conditions.
In its distribution efforts, SAIC will use the then current names, marks
and designations used by ODS for the Products ("Marks") but will not
represent or imply that it is ODS or is a part of ODS; provided that all
advertisements and promotional materials, packaging and anything else
bearing a ▇▇▇▇ shall identify ODS as the ▇▇▇▇ owner and Product
manufacturer and shall be subject to prior written approval of ODS, which
approval shall not be unreasonably withheld, and, provided further, that no
other right to use any name or designation is granted by this Agreement.
SAIC also agrees not to use or contest, during or after the term of this
Agreement, any name, ▇▇▇▇ or designation used by ODS anywhere in the world
(or any name, ▇▇▇▇ or designation similar thereto). SAIC acknowledges and
agrees that all use of the Marks by SAIC shall inure to the benefit of ODS.
15.3 SAIC agrees to keep ODS informed as to any problems encountered
with the Products and any resolutions arrived at for those problems, and to
communicate promptly to ODS any and all modifications, design changes or
improvements of the Products suggested by any customer, employee or agent.
15.4 SAIC agrees in all cases, to deliver all components of the Products
to End-Users thereof; such components shall include, without limitation,
software disks or other media bearing labels, ODS's or its licensors' end
user manuals and documentation, ODS's or its licensors' end user license
agreements and, at the option of SAIC, advertising and promotional
materials supplied by ODS.
15.5 SAIC agrees to keep for three (3) years after termination of this
Agreement records of all Product sales and customers sufficient to
adequately administer a recall of any Product and to fully cooperate in any
decision by ODS to recall, retrieve and/or replace any Product.
16. PATENT, COPYRIGHT AND TRADE SECRET INDEMNIFICATION
16.1 INDEMNIFICATION FOR INFRINGEMENT. For the purposes of this Article
16, the term "Products" shall not include any "Conveyed Items." To the
extent not proximately caused
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by SAIC, ODS, at its own expense, will defend, indemnify and hold SAIC
and its directors, officers, employees and agents harmless against claims
or actions (and all related costs and expenses as and when incurred)
alleging that Products infringe a patent, copyright or misappropriate
trade secrets or other intellectual property rights of a third party
provided SAIC (i) gives ODS prompt written notice of the claim or action,
(ii) permits ODS to defend or settle such claim or action and (iii)
provides reasonable assistance to ODS in defending or settling the claim
or action. SAIC reserves the right, at its expense, to participate in
defense of any claim or action through counsel selected by SAIC. SAIC's
rights under this Article extend to ODS Products only and do not extend
to third-party items not incorporated into the Products. The foregoing
obligation of ODS does not apply with respect to Products (i) specially
made by ODS to the specifications of SAIC, (ii) which are modified by
other than ODS after their shipment by ODS if the alleged infringement
relates to such modification, (iii) combined by parties other than ODS
with other products, processes or materials where the alleged
infringement relates to such combination, or (iv) where SAIC continues
allegedly infringing activity after being notified thereof or after being
informed by ODS of the availability of modifications (at no expense to
SAIC) that would have avoided the infringement.
16.2 INFRINGEMENT. As to any Product, which is or, in the opinion of
ODS, may become subject to a claim of infringement or misappropriation and
to the extent not proximately and directly caused by SAIC, ODS may elect to
(i) obtain the right for continued sale and/or use by SAIC, or (ii) replace
or modify the Product to avoid such claim. If neither of the
aforementioned are completed promptly, ODS promptly shall refund all
amounts paid by SAIC with respect to Products distributed by SAIC and, with
respect to Products used internally by SAIC, the depreciated amount on a
straight-line five year basis, relating to the infringing Product, in
either case, such refund shall be paid to SAIC within ten (10) days after
the return of the Products to ODS.
17. TERMINATION AND CANCELLATION
17.1 ODS DEFAULT. This Agreement or any Order(s), in whole or in part,
shall be deemed canceled for default of ODS if a material default is not
cured within thirty (30) days from SAIC's written notice describing such
material default and specifying the Agreement or the Order(s) to be
canceled.
17.2 SAIC DEFAULT. This Agreement or any Order(s), in whole or in part,
at ODS' election may be canceled for default of SAIC if a Material Default
by SAIC is not cured within thirty (30) days from ODS' written notice
describing such Material Default and specifying that this Agreement and/or
the Order(s) to be canceled. "Material Default" by SAIC shall include, but
not be limited to:
17.2.1 More than sixty (60) day delinquency in payment of an
invoice for conforming Products;
17.2.2 Breach by SAIC of its obligations under Section 14 as
to Proprietary Information disclosed by ODS to SAIC;
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17.2.3 (i) the commencement of liquidation or winding-up
proceedings of SAIC, (ii) voluntarily filing by SAIC of a
bankruptcy petition of SAIC, (iii) the granting of an order of
relief in an involuntary bankruptcy proceeding filed against SAIC
or (iv) any assignment for the benefit of creditors.
17.3 CONTINUATION. Termination or cancellation of this Agreement shall
not affect Licensed Software sublicenses granted to End-Users prior to the
effective date of termination or cancellation or the continued license and
right of SAIC to use Licensed Software and Documentation to support use of
Products by the then existing End-Users at the time of termination.
18. INDEMNIFICATION AND INSURANCE
18.1 INDEMNIFICATION. ODS agrees to indemnify SAIC as to any and all
third party claims (including damages, all related expenses, attorney fees,
court costs and penalties) for personal injury, death or damage to property
proximately caused by ODS's actions or omissions in the course of
performing this Agreement or from Products (excepting Conveyed Items)
delivered by ODS under this Agreement.
18.2 INSURANCE. During the term of this Agreement and for two (2) years
thereafter, each party agrees to purchase at its own cost and to maintain
at all times during the performance of this Agreement the following
insurance coverage: (1) workers' compensation insurance in the amount
required by applicable laws and regulations, (2) employer's liability
insurance in an amount not less than $500,000 per occurrence, (3)
commercial general liability insurance including Premises/Operations,
Contractual, Products/Completed Operations and Contractor's Contingent
Liability coverages in an amount not less than $2,000,000 per occurrence
and in the aggregate, and (4) comprehensive automobile liability insurance
covering personal and property damage in an amount not less than $1,000,000
combined single limit. Upon request, each party shall produce
substantiation that such insurance coverages are in place to the other,
which may be by a letter or other document signed by an insurance
professional. All insurance information shall be deemed to be confidential
information under the confidentiality section of this Agreement.
19. MOST FAVORED CUSTOMER
ODS represents and warrants that the prices, discounts, Product offerings,
license provisions and availability, services and other provisions having a
financial impact (e.g., a no-charge extended warranty, a no-charge
extension of service availability, etc.) ("PROVISIONS") of this Agreement
are at least as favorable as those offered by ODS to any other customer of
ODS or offered by ODS to a prospective customer. ODS agrees to
automatically extend any more favorable Provisions to SAIC on and after the
date such provisions are offered by ODS to any customer of ODS or to a
prospective customer of ODS subject to the exceptions set forth in the
following sentence. The terms of this Agreement shall be deemed to have
been modified by such more favorable Provisions subject to the following
exceptions: (i) limited special promotions to select customers or potential
customers and (ii) unusually large discounts or variance in terms related
to select Product offerings to select customers or
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potential customers designed to encourage such customers to purchase, or
purchase additional, products from ODS (collectively referred to as
"SPECIAL OFFERINGS"). ODS hereby authorizes SAIC to review its books and
records on an annual basis to verify ODS' compliance with this section.
Notwithstanding the foregoing, whenever ODS knows or has reason to know
that SAIC and another customer of ODS or a prospective customer of ODS
are competing for the same project, request for proposal or other
contract, ODS shall extend the same or more favorable Provisions to SAIC,
even if a Special Offering is involved, it being the intention of the
parties that SAIC shall never be placed at a competitive disadvantage in
dealing with the Products.
20. DISPUTE RESOLUTION
20.1 ARBITRATION. The parties agree that any controversy or claim
(whether such controversy or claim is based upon or sounds in statute,
contract, tort or otherwise) arising out of or relating to this Agreement,
any performance or dealings between the parties, or any dispute arising out
of the interpretation or application of this Agreement, which the parties
are not able to resolve, shall be settled exclusively by arbitration in
Dallas, Texas by a single arbitrator pursuant to the American Arbitration
Association's Commercial Arbitration Rules then in effect and judgment upon
the award rendered by the arbitrator shall be entered in any court having
jurisdiction thereof and such arbitrator shall have the authority to grant
injunctive relief in a form similar to that which a court of law would
otherwise grant. The arbitrator shall be chosen from a panel of licensed
attorneys having at least fifteen (15) years of professional experience who
are familiar with the subject matter of this Agreement. The arbitrator
shall be appointed within thirty (30) days of the date the demand for
arbitration was sent to the other party. Discovery shall be permitted in
accordance with the Federal Rules of Civil Procedure. If an arbitration
proceeding is brought pursuant to this Agreement, the prevailing party
shall be entitled to recover reasonable attorneys' fees, costs and
necessary disbursements incurred in addition to any other relief to which
such party may be entitled.
20.2 STATUTE OF LIMITATIONS. No proceeding, regardless of its form,
arising out of or in relation to this Agreement, its making or performance,
may be commenced by either party more than two (2) years after the cause of
action has accrued.
21. LIMITATION OF LIABILITY
21.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ONE ANOTHER OR TO ANY
THIRD PARTY IN CONTRACT, TORT OR OTHERWISE FOR INCIDENTAL, CONSEQUENTIAL,
SPECIAL OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, LOST BUSINESS
PROFITS OR LOSS, DAMAGE OR DESTRUCTION OF DATA, EVEN IF THE PARTY CAUSING
THE DAMAGE HAS BEEN ADVISED AS TO THE POSSIBILITY OF SAME.
22. FINDER'S FEES
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During the first two (2) years following the date of this Agreement
("FINDER'S FEE PERIOD"), if, as and when SAIC identifies an opportunity
whereby ODS may enter a business transaction with a prospective customer
concerning any of the Conveyed Items, SAIC may notify ODS in writing as to
the opportunity and will provide ODS with a reasonable description of the
opportunity, including the names of appropriate contacts, general scope of
the opportunity envisioned and such other information as SAIC may possess
concerning the opportunity (the "SAIC IDENTIFIED PROSPECT"). If agreed upon
by SAIC and ODS with respect to an SAIC Identified Prospect, SAIC will help
in scheduling meetings with the SAIC Identified Prospect's personnel,
attending such meetings as requested by ODS, preparing reports as
reasonably requested by ODS, helping in the creation of proposals by ODS,
and such other things as ODS and SAIC mutually agree upon, however, ODS
acknowledges that SAIC is not obligated to undertake any of the foregoing
to receive the fees provided herein. ODS will solely determine the terms of
any offering submitted to an SAIC Identified Prospect. In return for SAIC's
advising ODS of an SAIC Identified Prospect with which ODS enters a
business transaction involving the purchase, license or other acquisition
of any of the Conveyed Items by the SAIC Identified Prospect within one (1)
year of the date of disclosure to ODS of the identity of the SAIC
Identified Prospect by SAIC, ODS agrees to pay SAIC a commission of
[***] of the amount invoiced by ODS to the SAIC Identified Prospect
with respect to any of the Conveyed Items that ODS furnishes to or for
the SAIC Identified Prospect during the Finder's Fee Period and during
the six (6) month period following thereafter (the "FINDER'S FEE").
ODS will pay the Finder's Fee to SAIC within ninety (90) days after the
date ODS invoices the SAIC Identified Prospect. It is agreed by the
parties that the Finder's Fees will apply to transactions between ODS
or SAIC with respect to [***] that are outstanding as of the date of this
Agreement. No royalty as provided in the SRGBLA will be payable by ODS
to SAIC with respect to any of the Conveyed Items when a Finder's Fee
is paid to SAIC hereunder. Finder's Fees are not applicable to
Products other than the Conveyed Items. ODS shall not deliberately
bundle or market Conveyed Items in a manner that is designed to or that
has the effect of lowering the Finder's Fees to be paid by ODS to SAIC.
If ODS or SAIC become aware of such effect, and ODS is notified by SAIC
of such effect or in the event ODS otherwise becomes aware of such
effect, ODS shall immediately take appropriate corrective action. Upon
providing reasonable advance notice to ODS, SAIC shall be entitled to
inspect ODS' books and records during ODS' normal business hours to
audit ODS' compliance with this provision for Finder's Fees.
23. GENERAL
23.1 FORCE MAJEURE. Neither party shall be liable for delays in
performance if such delay is caused by strike, riots, wars, government
regulations, fire, floods, acts of God nor other similar causes beyond its
control provided the other party is given prompt notice of any such delay.
---------------
*** Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 24b-2.
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23.2 CHOICE OF LAW. This Agreement shall be deemed to have been entered
into and shall be governed by and construed in accordance with the laws of
the State of Delaware.
23.3 RELATIONSHIP. The relationship between the parties is that of ODS
and SAIC. Nothing in this Agreement shall be construed or implied to
create the relationship of partners, joint venturers, principal and agent,
or employer/employee between the parties. At no time shall either party
make commitments or incur any changes or expenses for or in the name of the
other party.
23.4 PUBLICITY. Neither party shall issue a press release or otherwise
publicly disclose the existence or terms of this Agreement without the
prior written approval of the text of any statement by the other party.
This provision shall not apply, however, to any announcement or written
statement required to be made by law or the regulations of any federal or
state governmental agency or by obligations pursuant to any listing
agreement with any national securities exchange or with the NASD, except
that the party required to make such announcement shall, whenever
practicable, consult with the other party concerning the timing and content
of such announcement before such announcement is made.
23.5 EXPORT. Each party shall comply with the export laws and
regulations of the United States relating to export of Products and
technical data originating in the United States. Such compliance includes
restrictions on providing technical data to foreign nationals within the
United States.
23.6 COMPLIANCE WITH LAW. In the performance of this Agreement, ODS and
SAIC shall comply with all applicable laws and regulations of federal,
state and local governments.
23.7 NON-WAIVER. The failure of either party to insist, in any one or
more instances, upon performance of any provision of this Agreement shall
not be construed as a waiver of future performance of such provision or
future exercise of such right or of any other provision or right.
23.8 SEVERABILITY. In the event of invalidity or unenforceability of
any provision of this Agreement, the remaining provisions shall continue in
full force and effect.
23.9 INTEGRATION. This Agreement, including all Exhibits, constitutes
the entire agreement between the parties with respect to its subject matter
and supersedes all prior written and oral agreements and representations
concerning the subject matter hereof. This Agreement may only be modified
by a writing signed by a duly authorized representative of each of the
parties. This Agreement has been negotiated by the parties and their
respective counsel and will be interpreted fairly in accordance with its
terms and without any strict construction in favor of or against either
party.
23.10 INTERPRETATION. The table of contents and headings contained in
this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
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23.11 NOTICE. Unless otherwise specified herein, any notice required or
permitted to be given under this Agreement shall be sufficient, if in
writing, and shall be deemed to be fully given if personally delivered or
by commercial courier service, if sent by registered mail return receipt
requested, by facsimile with confirmation of transmission, or by telex with
receipt acknowledged, to the following addresses:
If to SAIC, to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President
Science Applications International Corporation
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇/▇ ▇▇-▇
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Associate General Counsel
Science Applications International Corporation
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇/▇ ▇▇
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
If to ODS, to:
▇▇▇ ▇▇▇▇▇▇▇
Chief Financial Officer
ODS Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
The foregoing addresses and individuals may be changed by either party by
giving to the other party prior written notice of any such change.
23.12 ASSIGNMENT. Neither party may assign or delegate its performance
hereunder without the advance written consent of the other party, which
such consent shall not be unreasonably withheld or delayed.
23.13 THIRD PARTIES. Nothing herein expressed or implied is intended or
shall be construed to confer upon or give to any person or corporation
other than the parties hereto and their successors or assigns, any rights
or remedies under or by reason of this Agreement.
23.14 COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall be deemed an original and all of which
together constitute one and the same instrument.
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ODS NETWORKS, INC.,
a Delaware corporation
By: /s/ ▇. ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇. ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Title: President
--------------------------
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Title: Senior Vice President
--------------------------
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EXHIBIT A
PRODUCT LIST PRICES AND DISCOUNTS
LIST PRICES:
See price list (the "Price List"). This list is changed on a frequent basis to
reflect pricing and Product changes. ODS will publish the most current pricing
on the ODS Web Site at ▇▇▇.▇▇▇.▇▇▇.
DISCOUNT:
The ODS authorized discount for SAIC is as follows:
ODS Products: [***]
ODS Supplied 3rd Party Products: [***]
ODS Network Management Products: [***]
---------------
*** Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 24b-2.
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EXHIBIT B
1.0 ORDER LEAD TIMES
All orders placed for Price List items shall be shipped
following ODS' receipt of a purchase order to the address listed on the
order in accordance with the schedule set forth below. ODS will use its
reasonable efforts to meet any expedited shipping schedule reasonable
requested by SAIC consistent with ODS meeting delivery obligations to its
other customers.
Amount of Product Shipping Time
Ordered Following Order
Within Forecast 30 Days
Over Forecast by 5 units 30 Days
Over Forecast more than 5 units, less than 25 45 Days
Over Forecast more than 25 units Subject to mutual agreement.
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