1
Exhibit 10.15
SDRC SDRC Operations, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ________________
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
MASTER SOFTWARE LICENSE AND SERVICE AGREEMENT
SDRC OPERATIONS, INC. ("SDRC") AND
CUSTOMER ▇▇▇▇▇ Material Handling
-----------------------------------------------------------------------
ADDRESS ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------------------------------
CITY Lexington STATE KY ZIP 40508
------------------------- ------------- -----------------------------
This Agreement shall consist of the terms and conditions contained in the
Schedules listed below which are designated by Customer's Initials and a
Licensed Software Designation Agreement executed by SDRC and Customer
referencing the Agreement Number cited above. Additional SDRC software and
services may be ordered from time-to-time by Customer's execution of a
supplemental Licensed Software Designation Agreement referencing the Agreement
Number cited above, and upon execution by SDRC of such supplemental Licensed
Software Designation Agreement, such future orders shall be governed by the
terms and conditions referenced herein.
Terms and Conditions Customer's Initials
o Standard Annual Software License Schedule _______________
o Standard Extended Term Software License Schedule _______________
o Maintenance and Support Schedule _______________
o Services Schedule _______________
===============================================================================
This Agreement, together with the terms and conditions incorporated by
reference, contains the entire understanding of SDRC and Customer and supersedes
all prior written or oral communications between the parties with respect to the
subject matter hereof. This Agreement does not operate as an acceptance of any
conflicting terms and conditions and shall prevail over any conflicting
provisions of any purchase order of Customer or any other instruments, it being
understood that any purchase order issued by Customer shall be for Customer's
convenience only and shall not be made a part of this Agreement. Deviations from
these terms and conditions shall not be valid unless specifically agreed to in
writing by an authorized employee of SDRC. By executing this Agreement below,
Customer acknowledges that it has reviewed the terms and conditions incorporated
into this Agreement and agree to be legally bound by same. Customer may not
assign any of its rights or obligations under this Agreement. This Agreement
shall be governed by, Subject to and construed in accordance with the laws of
the State of Ohio.
================================================================================
CUSTOMER_______________________________ SDRC Operations, Inc.
BY_____________________________________ BY________________________________
NAME __________________________________ NAME______________________________
TITLE__________________________________ TITLE_____________________________
DATE___________________________________ DATE______________________________
2
SDRC SDRC Operations, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ________________
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
STANDARD EXTENDED TERM SOFTWARE LICENSE SCHEDULE
Customer ▇▇▇▇▇ Material Handling Address ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------- -------------------------
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------
1. Definitions
1.1 Licensed Programs(s) means the executable code version of the SDRC
software designated by Customer in the Licensed Software Designation
Agreement and any related documentation.
1.2 Computer System means the computer hardware equipment on which
Customer has elected to install and/or execute Licensed Program(s).
2. License Fee:
2.1 The extended term license fee is the aggregate of the fees stated in
the Licensed Software Designation Agreement for each Licensed Program
selected by Customer.
2.2 The fee shall be due and payable on the date the Licensed Program(s)
are shipped.
3 License Grants:
3.1 Licensed Program(s), including any documentation relating to or
describing such Licensed Program(s) such as, but not limited to, user
manuals, now or hereafter provided by SDRC, are furnished to Customer
under a non-exclusive, non-transferable license solely for Customer's
own use on the single designated Computer System on which each
Licensed Program is first installed. The Licensed Program(s) may only
be copied with the proper inclusion of SDRC's copyright notice for use
on such single Computer System for archival and back-up purposes. The
Licensed Program(s) may not be reverse compiled, disassembled or
otherwise reverse engineered.
3.2 If Customer is unable to operate the Licensed Program(s) on the
Computer System due to equipment malfunction, the Licensed Program(s)
may be transferred temporarily to another Computer System during the
period of equipment malfunction.
4. Installation:
Customer shall install the Licensed Program(s) only on Customer's
Computer System designated on the Licensed Software Designation
Agreement.
5. Title:
No title to or ownership in the Licensed Program(s) is transferred to
Customer. Title to and all applicable rights in patents, copyrights
and trade secrets in the Licensed Program(s) shall remain in SDRC or
third parties from whom SDRC has obtained rights to license the
Licensed Program(s). Licensed Program(s) provided hereunder,
including the ideas, concepts, know-how and technology contained
therein, are proprietary and confidential to and contain trade secrets
of SDRC or third parties from whom SDRC has obtained rights to license
the Licensed Program(s), and Customer agrees to be bound by and
observe the proprietary, confidential and trade secret nature thereof
as herein provided. Customer agree to take appropriate action by
instruction or agreement with its employees who are permitted access
to the Licensed Program(s) to fulfill its obligations hereunder.
Except as may be permitted in writing by SDRC, Customer shall not
provide or otherwise make available, the Licensed Program(s) or copies
thereof to any third party.
6. Term and Termination:
6.1 The terms of each license granted hereunder shall commence on the date
the extended term license fee is due and payable by Customer and shall
continue until such time as Customer discontinues use of the Licensed
Program(s) on the Computer System specified above, but otherwise shall
be without restriction as to time.
6.2 SDRC shall have the right to terminate Customer's license if Customer
fails to comply with these license terms and conditions. SDRC shall
give written notice to Customer of any such default and if the default
is not remedied within 30 days after such notice, the license shall
terminate.
6.3 Customer agrees, upon expiration of the license term or upon
termination by reason of Customer's default, to immediately return or
destroy the Licensed Program(s) and copies thereof as directed by
SDRC, and, if requested by SDRC, to certify in writing as to the
destruction or return of the Licensed Program(s) and all copies
thereof.
3
7. Warranty:
7.1 SDRC WARRANTS THAT FOR A PERIOD OF 90 DAYS AFTER DELIVERY OF LICENSED
PROGRAM(S) TO CUSTOMER, THE LICENSED PROGRAM(S) WILL PERFORM IN
ACCORDANCE WITH THE SDRC USER DOCUMENTATION. IN THE EVENT THE LICENSED
PROGRAM(S) DO NOT PERFORM IN ACCORDANCE WITH THE USER DOCUMENTATION,
THEN DURING THE 90 DAY WARRANTY PERIOD SDRC SHALL AT ITS OPTION (I)
CORRECT ANY VARIANCE BETWEEN LICENSED PROGRAM(S) PERFORMANCE AND
LICENSED PROGRAM(S) USER DOCUMENTATION; (II) REPLACE THE LICENSED
PROGRAM(S) MEDIA. THE FOREGOING SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE
REMEDY FOR ERROR OR DEFECT IN THE LICENSED PROGRAM(S).
7.2 THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, WHICH WARRANTIES ARE HEREBY DISCLAIMED,
INCLUDING THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
8. Patent and Copyright Indemnification:
SDRC hall defend any action, suit or proceeding brought against
Customer in so far as it is based on a claim that the Licensed
Program(s) delivered hereunder infringe any United States patent or
copyright issued or registered as of the date of this Agreement,
provided that SDRC is promptly notified by Customer of the action and
given full authority , information and assistance (at SDRC's expense)
for the defense of the action. SDRC shall pay all damages and costs
awarded therein against Customer, but shall not be responsible for any
compromise made without its consent. SDRC may, at its option and
expense, revoke or modify the Licensed Program(s) so that infringement
will not exist or refund to Customer the price thereof as depreciated
or amortized by an equal annual amount over the lifetime of the
Licensed Program(s) as established by SDRC. SDRC's commitment shall
not extend to any infringement or claim thereof which is based upon
the combination of the Licensed Program(s) delivered hereunder with
software not supplied by SDRC.
9. Use of Licensed Program(s) and Limitation of Liability:
9.1 Customer shall retain full control over the use of the Licensed
Program(s) and any modifications or enhancements thereof as well as
Customer's use of any recommendations provided by SDRC during the
course of providing services under any other Schedule of this
Agreement. Accordingly Customer agrees to be solely responsible for
the design, repair and configuration of Customer's equipment,
machinery, systems and/or products. Customer assumes all risks and
liability for results obtained by the use or implementation of the
designs in any way influenced by the use of the Licensed Program(s) or
the provision of services, whether such designs are used singly or in
combination with other designs or products. Customer agrees that SDRC
shall have no liability to Customer or to any third party for any
ordinary, special or consequential damages or losses which might arise
directly or indirectly by reason of Customer's use of the Licensed
Program(s) or the provision of services. Customer shall protect,
indemnify, hold harmless and defend SDRC of and from any loss, costs,
damage or expense, including any attorney's fees, arising out of any
claim asserted against SDRC that is in any way associated with the
matters set forth in this Paragraph 9.1.
9.2 With respect to any claim not subject to Section 9.1, the liability of
SDRC for any claim hereunder, regardless of the form of action,
whether in contract or tort, including claims of negligence against
SDRC, shall be limited to the total of all amounts Customer has paid
to SDRC for the Licensed Program(s) or services that are alleged to
have caused damages or that is related to the cause of action. In no
event shall SDRC be liable for any incidental or consequential damages
including, without limitation, loss of use, loss of profits or other
consequential damages, even if SDRC has been advised of the
possibility of such damages. No action, regardless of form, arising
out of the transactions under this Agreement may be brought by
Customer more than two years after the cause of action has occurred.
10. Maintenance and Support:
Customer may elect to order from SDRC maintenance and support under
the terms and conditions of the Maintenance and Support Schedule,
11. Proprietary Right:
Information and data supplied by SDRC with the Licensed Program(s)
delivered hereunder, such as, but not limited to, user manuals and
documentation, are confidential and proprietary to SDRC and contain
trade secrets of SDRC. Such information and data are furnished solely
to assist Customer in the installation, operation and use of the
Licensed Program(s). All such confidential and proprietary information
and data shall be so marked and Customer agrees to abide by the terms
of such markings and not to reproduce or copy such data except as is
reasonably necessary for proper use of the Licensed Program(s).
12. Export:
12.1 Customer acknowledges that the Licensed Program(s) provided hereunder
may be subject to export controls. Customer agrees that any Licensed
Program(s) licensed hereunder will not be exported (or reexported from
the country where it was first installed), directly
4
or indirectly, separately or as a part of a system, without Customer,
at its own cost, fort obtaining all licenses from the United States
Department of Commerce and any other appropriate agency of the United
States Government as may be required by law.
12.2 Customer acknowledges and agrees that it shall not use the Licensed
Program(s) in the design, development, production, stockpiling or use
of missiles, or chemical or biological weapons nor shall it use the
Licensed Program(s) for facilities which are intended to produce
chemical weapons or chemical weapon precursors, unless a validated
export license is obtained from the United States Department of
Commerce where required.
12.3 Customer further acknowledges and agrees that it shall not use the
Licensed Program(s) either directly or indirectly to design, develop,
fabricate or test nuclear weapons or nuclear explosive devices or to
design, construct, fabricate, operate or construct components for
facilities: for the chemical processing of irradiated special nuclear
or source material: for the production of heavy water; for the
separation of isotopes of sources and special nuclear material, or for
the fabrication of nuclear reactor fuel containing plutonium unless a
validated export license is obtained from the United States Department
of Commerce where required.
13. Taxes:
The license fees and any other amounts payable pursuant to this
Agreement are exclusive of all national, state, regional, local,
municipal or other taxes and fees including, but not limited to,
excise, sales, use, property, ad valorem, intangible, goods and
services and value added taxes, customs duties and registration fees,
now in force or enacted in the future, and all such taxes and fees,
except taxes based on SDRC's net worth, capital or net income shall be
paid directly by the Customer, or if paid by SDRC, Customer will
reimburse SDRC.
14. Notice:
All notices required to be given hereunder shall be in writing. Notice
shall be considered delivered and effective upon receipt when sent by
registered or certified mail, return receipt requested, addressed to
the parties as set forth above. Either party, upon written notice to
the other, may change any name or address to which future notice shall
be sent.
15. Uncontrollable Circumstances:
If the performance of any part of this Agreement by SDRC or Customer
is prevented or delayed by acts of civil or military authority, flood,
fire, epidemic, war or riot, or other acts beyond the reasonable
control of either party, the party affected shall be excused from such
performance only during the continuance of any such event; provided
however, that if such delay in performance extends for more than 60
days, the other party, at its discretion, upon giving written notice,
may terminate this Agreement.
16. Regulations for Federal Acquisition:
If Customer is a unit or agency of the United States Government, the
following provisions apply:
(i) if the Licensed Program(s) are supplied to the Department of
Defense (DOD), the Licensed Program(s) are classified as commercial
Computer Software and the Government is obtaining only "restricted
rights" in the Licensed Programs(s) and its documentation as that term
is defined in Clause 252.227-7013(c)(l)of the DFARS; and (ii) if the
Licensed Program(s) are supplied to any unit or agency of the United
States Government other than DOD, the Government's rights in the
Licensed Program(s) and its documentation will be as defined in Clause
52.227-19(c)(2) of the FAR or, in the case of NASA, in Clause
18-52.227-86(d) of the NASA Supplement to the FAR.
17 General:
17.1 Customer may not assign any of its obligations, rights or remedies
hereunder and any such attempted assignment shall be null and void.
17.2 Customer shall not in any manner or form disclose, provide or
otherwise make available, in whole or in part, any Licensed Program(s)
and/or documentation to any third parties.
17.3 The waiver or failure of either party to exercise in any respect any
right provided for herein shall not be deemed a waiver of any further
right hereunder. This Schedule constitutes the entire terms and
conditions between the parties with respect to the subject licensing
of the Licensed Program(s) on an extended term basis and supersedes
all proposals, all previous negotiations and agreements, written or
oral, express or implied, between the parties with respect to the
license.
17.4 The terms and provisions contained in Sections 5,9, 11 and 12 shall
survive the termination of this Agreement.
17.5 This Agreement shall in all respects be governed by and construed in
accordance with the laws of the State of Ohio.
5
SDRC SDRC Operations, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ________________
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
MAINTENANCE AND SUPPORT SCHEDULE
Customer ▇▇▇▇▇ Material Handling Address ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------- ---------------------------
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------
The following are the terms and conditions under which SDRC agrees to furnish
and Customer agrees to accept Software maintenance and support services for the
Licensed Program(s) listed on the Licensed Software Designation Agreement under
the Agreement cited above.
I. Eligibility requirements
Services under this Schedule are applicable only to SDRC Licensed
Program(s).
II. Customer may purchase Maintenance and Support services for the Licensed
Program(s) by indicating on the Master Software License and Service
Agreement that it desires same (such services are automatically furnished
as part of any annual license). All such services shall be upon the
following terms and conditions:
1. Maintenance:
SDRC shall correct any material variance between Licensed Program(s)
performance and Licensed Program(s) user manual description, including the
correction of documentation and/or software codes. SDRC shall distribute to
Customer corrected Licensed Program(s) as soon as they are available. SDRC
will respond to Customer's request for service within a reasonable time
considering all circumstances at the time of the request, including the
nature of the service required.
SDRC shall distribute to Customer those enhancements to the Licensed
Program(s) released without restrictions by SDRC to other licensees.
Enhancements include:
a. Licensed Program(s) Enhancements:
Versions of Licensed Program(s) which encompass improvements,
extensions, and other changes which SDRC, in its discretion, deems to
be logical improvements or extensions of the original Licensed
Program(s) supplied to Customer.
b. Documentation:
Updates and extensions or amendments of user documentation of the
Licensed Program(s).
c. System Updates:
Customer acknowledges that certain Licensed Program(s) enhancements
may require either additional hardware or hardware updates, with
respect to the Customer's original computer system, in order for
Customer to gain the full benefits of said enhancements. All costs and
responsibilities for such new or additional hardware shall be borne
solely by Customer.
2. Support:
SDRC shall provide telephone service to Customer for the purpose of
assisting Customer with the application of SDRC Licensed Program(s).
(Telephone service is defined as "answering questions requiring a
nominal amount of time, usually during the same telephone call.")
Visits either to the SDRC site by Customer, or to Customer's site by
SDRC and services in addition to telephone service will be charged at
SDRC's then current labor rates plus expenses. Customer will be
informed in advance of incurring any charges.
Fees:
3. Customer shall pay to SDRC an annual fee in advance for other
services set forth in this Schedule. There shall be no charge for this
service for an Annual License of the Licensed Program(s).
4. Term:
The right to receive Maintenance and Support pursuant to an extended
term license shall be for ____(____) months, but in no event shall any
term be for more than twenty-four (24) months.
6
III. Warranty and Limitation of Liability
1. EXCEPT AS STATED IN THE APPLICABLE LICENSE SCHEDULE, THERE ARE NO
EXPRESS OR IMPLIED WARRANTIES RESPECTING THE AGREEMENT, THIS SCHEDULE
AND THE SERVICES PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. THE WARRANTIES AND REMEDIES SET FORTH IN THE APPLICABLE
LICENSE SCHEDULE ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS, ORAL OR
WRITTEN, EXPRESS OR IMPLIED.
2. SDRC will not be liable for any failure or delay in performance due in
whole or in part to any cause beyond SDRC's reasonable control. SDRC's
liability in connection with the provision of Licensed Program
enhancements, corrected versions of the Licensed Program(s) or
services hereunder shall be subject to Section 9 of the Standard
Extended Term Software License Schedule or the Standard Annual
Software License Schedule as applicable to the Licensed Program(s).
IV. General
1. Customer may not assign any of its obligations, rights or remedies
under this Schedule and any such attempted assignment shall be null
and void.
2. The waiver or failure of either party to exercise in any respect any
right provided for herein shall not be deemed a waiver of any further
right hereunder.
3. Customer agrees that SDRC may perform such tests as SDRC shall deem
necessary to monitor compliance with applicable software licenses at
any time, with or without notice, during normal business hours.
7
SDRC SDRC Operations, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ________________
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
SERVICES SCHEDULE
1. Services:
SDRC shall provide Customer with the Services set out in the Licensed
Software Designation Agreement. Amendments to the Licensed Software
Designation Agreement shall be agreed to in writing by both parties. Before
any amendments to the Licensed Software Designation Agreement are
implemented, all changes in the price necessitated by such amendments shall
be agreed to in writing.
2. Fees and Costs:
2.1 Customer shall pay SDRC for the Services, the fees and costs set out
in the Licensed Software Designation Agreement.
2.2 Fees and costs are due and payable by Customer upon receipt of
invoice.
2.3 The license fees and any other amounts payable pursuant to this
Agreement are exclusive of all national, state, regional, local,
municipal or other taxes and fees including, but not limited to,
excise, sales, use, property, ad valorem, intangible, goods and
services and value added taxes, customs duties and registration fees,
now in force or enacted in the future, and all such taxes and fees,
except taxes based on SDRC's net worth, capital or net income shall be
paid directly by the Customer, or if paid by SDRC, Customer will
reimburse SDRC.
2.4 In addition to the fees and costs, Customer shall reimburse SDRC
pursuant to SDRC's then current standard policies for all travel and
special or unusual out-of-pocket expenses incurred at Customer's
specific request which are not set forth in the Licensed Software
Designation Agreement.
3. Timetable:
While SDRC intends to use all reasonable efforts to provide the Services in
accordance with the timetable set out in the Licensed Software Designation
Agreement, it shall incur no liability whatsoever (whether in contract,
negligence or otherwise) for any loss or damage resulting from delay
however caused.
4. Intellectual Property Rights:
4.1 SDRC shall not be precluded in any way from developing, acquiring
and/or marketing know-how, techniques or materials which may be
similar to or competitive with know-how, techniques or materials
delivered to Customer under this Agreement, provided that SDRC shall
not utilize proprietary information disclosed to it by Customer in the
marketing of such materials.
4.2 In the event that the Services are to be provided by SDRC in
connection with software programs and related documentation supplied
by Customer in relation to which rights may be owned by third parties,
Customer warrants and represents that:
(i) Customer has all necessary permissions, express or otherwise, to
enable the software programs and documentation to be copied or
otherwise used by SDRC during the course of the Services;
(ii) in providing the Services SDRC will not be infringing the rights
of any third parties; and
(iii) the disclosure or use of the software programs and documentation
during the course of the Services will not involve the breach of
any confidential or contractual relationship.
5. Personnel:
5.1 SDRC reserves the sole right to determine the allocation of SDRC
personnel in providing the Services.
5.2 Nothing herein shall prevent SDRC from assigning SDRC personnel, who
are providing the Service to Customer under this Schedule, to perform
services similar to the Services for other customers of SDRC or
restrict SDRC in any other way in its use of SDRC personnel.
6. Warranty:
6.1 SDRC warrants that it will use reasonable care and skill in providing
the Services.
6.2 SDRC MAKES NO WARRANTY WITH RESPECT TO THE EQUIPMENT, MACHINERY,
SYSTEMS AND/OR PRODUCTS DERIVED OR RESULTING HEREUNDER OR WITH RESPECT
TO ANY EQUIPMENT, MACHINERY, SYSTEMS OR PRODUCTS OBTAINED BY SDRC IN
THE PERFORMANCE OF ITS SERVICES AND DELIVERED OR CONVEYED TO CUSTOMER
BY SDRC AND THE CUSTOMER ASSUMES ALL RISKS AND LIABILITY FOR THE
RESULTS OBTAINED BY THE MANUFACTURE, USE OR IMPLEMENTATION OF THE
SERVICES THAT ARE PROVIDED HEREIN, WHETHER USED SINGLY OR IN
COMBINATION WITH OTHER DESIGNS OR PRODUCTS. THE ABOVE WARRANTIES ARE
IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED AND ALL SUCH
WARRANTIES ARE HEREBY DISCLAIMED INCLUDING, BUT NOT LIMITED TO, THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8
7. Liability:
SDRC's liability in connection with the provision of Services hereunder
shall be subject to Section 9 of the Standard Extended Term Software
License Schedule or the Standard Annual Software License Schedule.
8. Export:
8.1 Customer acknowledges that the services, information, software and/or
technology provided hereunder may be subject to export controls.
Customer agrees that any services, information, software and/or
technology provided hereunder will not be exported (or rexported from
the country in which it is first installed), directly or indirectly,
separately or as part of a system, without Customer, at its own costs,
first obtaining all licenses from the United States Department of
Commerce, United States Department of State or any other appropriate
agency of the United States Government as may required by law.
8.2 Customer acknowledges and agrees that it shall not use any services,
information, software and/or technology provided hereunder in the
design, development, production, stockpiling or use of missiles, or
chemical or biological weapons nor shall it use any Licensed
Program(s) for facilities which are intended to produce chemical
weapons or chemical weapon precursors, unless a validated export
license is obtained from the United States Department of Commerce
where required.
8.3 Customer further acknowledges and agrees that it shall not use any
services, information, software and/or technology hereunder either
directly or indirectly to design, develop, fabricate or test nuclear
weapons or nuclear explosive devices or to design, construct,
fabricate, operate or construct components for facilities: for the
chemical processing of irradiated special nuclear or source material;
for the production of heavy water, for the separation of isotopes of
source and special nuclear material; or for the fabrication of
nuclear reactor fuel containing plutonium unless a validated export
license is obtained from the United States Department of Commerce
where required.
9. Hiring of SDRC Employees:
Customer agrees that during the term of this agreement and for a period of
one (1) year after the completion of the Service described in the Licensed
Software Designation Agreement in Article 1 above, Customer shall not,
except with the prior written consent of SDRC, offer any employment to any
of SDRC's employees.
10. General:
10.1 Customer may not assign or otherwise transfer any of its obligations,
rights or remedies under this Schedule and any such attempted
assignment or transfer shall be null and void.
10.2 The waiver or failure of either party to exercise in any respect any
right provided for herein shall not be deemed a waiver of any further
right hereunder. This Schedule constitutes the entire terms and
conditions between the parties with respect to the project covered in
the Licensed Software Designation Agreement and supersedes all
proposals, all previous negotiations and agreements, written or oral,
express or implied, between the parties with respect to such project.
10.3 The complete or partial invalidity or enforceability of any provision
herein for any purpose shall in no way affect the validity or
enforceability of such provision for any other purpose or the
remaining provisions. Any such provision shall be deemed to be severed
for that purpose subject to such consequential modification as may be
necessary for the purpose of such severance.
10.4 All notices required to be given hereunder shall be in writing. Notice
shall be considered delivered and effective upon receipt when sent by
registered or certified mail, return receipt requested, addressed to
the parties set forth above. Either party, upon written notice to the
other, may change any name or address to which future notice shall be
sent.
10.5 This Schedule shall be governed by, subject to and construed in
accordance with the laws of the State of Ohio.
9
ISSC/ ▇▇▇▇▇ Material Handling Company
Amendment #5 to Agreement for Systems Operations Services
--------------------------------------------------------------------------------
▇▇▇▇▇ Material Handling Company, having its principal place of business at ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ "▇▇▇▇▇") and Integrated Systems
Solutions Corporation, a Delaware corporation, having its headquarters at ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("ISSC"), agree that the following
terms and conditions amend and/or supplement the Agreement for Systems
Operations Services, dated March 2, 1992, between ▇▇▇▇▇ and ISSC, (the
"Amendment"). ISSC acknowledges that the Agreement was assigned by ▇▇▇▇▇
Equipment Company to ▇▇▇▇▇ Material Handling Company. This Amendment corrects,
clarifies or changes those sections of the Agreement as indicated below. Unless
modified herein, all other terms defined in the Agreement, Amendments, and
Schedules shall have the same meaning when used in this Amendment. All terms and
conditions of the Agreement and its subsequent Amendments not otherwise
specifically amended or supplemented herein remain unchanged and in full force
and effect.
The Term of this Amendment will begin as of the date it is executed by both
Parties or upon commencement of any Services provided hereunder, whichever is
first, and will run concurrently with the Agreement. Termination provisions of
the Agreement apply to this Amendment, unless specifically amended herein.
Table of Contents
Section Title Page
1.0 Background and Objectives 1
2.0 Definitions, Documents and Term 1
2.3 Associated Contract Documents 1
3.0 Transition 2
3.7 Data Lines and Connections 2
3.11 Data Network Management Transition 2
4.0 ISSC Responsibilities 2
4.9 Operations, Support and Maintenance 2
4.10 Systems Management 3
4.11 Disaster Recovery 3
4.13 Help Desk 3
5.0 ▇▇▇▇▇ Responsibilities 3
5.5 Other Responsibilities 3
6.0 Charges and Expenses 3
6.1 Charges 3
6.2 Resource Charges and Credits 3
6.4 Cost of Living Adjustment 4
6.12 Print Services Transition Charge 4
7.0 Invoicing and Payment 4
7.1 Annual Services Charge Invoices 4
7.2 ARC, RRC and COLA Invoices 4
7.9 Print Services Transition Charge Invoices 4
10.0 Termination 4
10.2 Termination For Convenience 4
17.0 General 5
1.0 Background and Objectives
Add the following as paragraphs six and seven:
▇▇▇▇▇ has requested and ISSC has agreed to provide ▇▇▇▇▇'▇ nightly batch printed
output from the Data Center to the designated location within the Data Center
for ▇▇▇▇▇'▇ pickup as specified in this Amendment, ("Print Services").
▇▇▇▇▇ has also requested, effective July 1, 1995, to provide the microfiche,
Data Network management and disaster recovery services specified in the
Agreement. In addition. the Parties have evaluated ▇▇▇▇▇'▇ strategic plans and
business requirements and have agreed to adjust the Baselines, ARCs and RRCs,
("Business Assessment Adjustment"). Therefore, ISSC agrees to amend the
Agreement to delete such services and adjust the Supplement and Schedules
accordingly.
2.0 Definitions, Documents and Term
2.3 Associated Contract Documents
Add the following to Section 2.3(a):
a) A Supplement #8 ("Supplement") containing the Charges, Term, and other
necessary information is a part of this Agreement. Supplement #8 amends,
replaces and restates in its entirety all previous Supplements. All
references to the Supplement contained in the Agreement, Schedules and any
preceding Amendments shall be deemed to refer to Supplement #8.
In reference to Section 2.3(b)
Pursuant to this Amendment, copies of Supplement #8, Revision #2 of Schedules G,
J and M, Revision #3 of Schedule I and Revision #4 of Schedules B and E are
attached hereto.
July 6, 1995
ISSC/▇▇▇▇▇ Confidential Amendment #5 Page 1 of 5
10
x) plan, design, operate, support, maintain and provide problem resolution for
the logical and physical Data Network components between and including the
host processor and the ISSC front end processor (FEP) to include all
hardware and software (e.g, NCP and VTAM).
4.10 Systems Management
Delete the following Section 4.10(d):
d) invoke the disaster recovery plan when appropriate; and
4.11 Disaster Recovery
Delete the following Section 4.11 in its entirety:
ISSC on an annual basis and in cooperation with ▇▇▇▇▇, ▇▇▇▇ update and test a
disaster recovery plan, as described in Schedule G.
ISSC will arrange for or provide a tested backup site ("Recovery Center") for
use in the event of unanticipated interruption of data processing capability at
the Data Center as described in Schedule G. If the Recovery Center is not
available when a disaster is declared, recovery services will be provided at
another recovery center or at an ISSC internal information processing facility
capable of providing services equivalent to the Recovery Center.
In the event of a disaster, access to the Recovery Center or other recovery
facilities may be on a shared, first-come-first-served basis with other
subscribers also experiencing a disaster.
Within 90 days following the execution of this Amendment, ISSC and ▇▇▇▇▇ will
update the current Disaster Recovery Plan to include the CADAM applications. At
▇▇▇▇▇'▇ option, additional CADAM communications resources not currently
available (e.g., CADAM channel controllers, CSUs and incremental bandwidth) to
provide disaster recovery services for such applications, as mutually agreed to
by the Parties, will be the financial responsibility of ▇▇▇▇▇.
4.13 Help Desk
Replace Section 4.13 with the following:
ISSC will provide initial, single point-of-contact support to End Users,
including ▇▇▇▇▇'▇ dealers and other authorized agents, to assist them with
problem determination, how-to questions, systems and Data Network status,
problem recording and reporting, problem resolution, and changes which may
affect them. ISSC will report the Data Network status to End Users calling the
Help Desk based upon the status provided to ISSC by ▇▇▇▇▇ (or its designate).
Help desk support is more fully described in Schedule M.
ISSC shall provide ▇▇▇▇▇ on-line access to ▇▇▇▇▇'▇ problem management records
("PMRs") and such file shall be updated daily.
5.0 ▇▇▇▇▇ Responsibilities
5.5 Other Responsibilities
Amend Section 5.5(f) as follows:
f) maintain responsibility for all printed output, other than the printed
output for which ISSC assumes responsibility under this Amendment;
Add the following as Sections 5.5(w), 5.5(x), 5.5(y), 5.5(z), 5.5(a1), 5.5(b1)
and 5.5(c1):
w) maintain and provide to ISSC a listing of the reports and/or jobs to be
printed at the Data Center;
x) specify the number of each report and/or job to be printed by ISSC;
y) define and execute the print jobs;
z) pickup the printed output at the designated location within the Data Center
after 7:30AM, Monday through Saturday or at other designated times, as
mutually agreed by the Parties;
a1) maintain responsibility for all microfiche output and distribution;
b1) plan, design, operate, support, maintain and provide problem resolution for
the logical and physical Data Network components except for that which ISSC
maintains responsibility under this Amendment; and
c1) provide LAN/WAN administration and provide to ISSC the network addresses
for host and ISSC FEP definitions.
6.0 Charges and Expenses
6.1 Charges
Add the following as paragraphs two, three and four:
Upon the Parties' execution of this Amendment or the commencement of Print
Services, whichever is first, ▇▇▇▇▇ agrees to pay ISSC the charge specified in
the Supplement for the provision of the Print Services, (the "Annual Print
Services Charge").
Effective July 1, 1995, ISSC agrees to adjust the charge specified in the
Supplement for the deletion of the microfiche, Data Network management and
disaster recovery services as well as the adjustment to the Baselines, ARCs and
RRCs, (the "Business Assessment Adjustment").
All references to the Annual Services Charge contained in the Agreement,
Supplement, Schedules and any previous Amendments shall be deemed to mean the
sum of the charges:
1) reflected under the Annual Services Charge in the November 23, 1993
Supplement (hereinafter the "Initial Agreement Charge"); and
2) any charges or adjustments pursuant to this and any previous or future
Amendments.
6.2 Resource Charges and Credits
Replace Section 6.2 with the following:
During the month following the Amendment Date, ISSC will review the quantity of
Resource Units uti-
July 6, 1995
ISSC/▇▇▇▇▇ Confidential Amendment #5 Page 3 of 5
11
17.0 General
The following is in addition to Section 17 of the Agreement:
In the event of any inconsistency in the terms of Agreement and the terms of
this Amendment. the terms of this Amendment shall apply. As amended herein, the
Agreement, the Supplement and all Schedules remain in full force and effect.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AMENDMENT, UNDERSTAND IT, AND
AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE PARTIES AGREE THAT
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES
RELATING TO THIS SUBJECT SHALL CONSIST OF 1) THE AMENDMENTS, 2) THE SUPPLEMENT
#8, 3) THE SCHEDULES, AND 4) THE MARCH 2, 1992 AGREEMENT. THIS STATEMENT OF THE
AMENDMENT SUPERSEDES ALL PROPOSALS OR OTHER PRIOR AGREEMENTS, ORAL OR WRITTEN,
AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THIS SUBJECT MATTER
DESCRIBED IN THIS AMENDMENT.
Accepted by: Accepted by:
Integrated Systems Solutions Corporation ▇▇▇▇▇ Material Handling Company
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------ ------------------------------------
Authorized Signature Authorized Signature
▇.▇. ▇▇▇▇▇▇▇▇▇▇ 7/7/95 ▇▇▇▇▇▇ ▇. ▇▇▇▇ 7/7/95
------------------------------------ ------------------------------------
Name (Type or Print) Date Name (Type or Print) Date
July 6, 1995
ISSC/▇▇▇▇▇ Confidential Amendment #5 Page 5 of 5
12
ISSC / ▇▇▇▇▇ Material Handling Company
Amendment to Agreement for Systems Operations Services
--------------------------------------------------------------------------------
▇▇▇▇▇ Material Handling Company, having its principal place of business at ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇") and Integrated Systems
Solutions Corporation, a Delaware corporation, having its headquarters at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("ISSC"), agree that the following
terms and conditions amend and/or supplement the Agreement for Systems
Operations Services, dated March 2, 1992, between ▇▇▇▇▇ and ISSC (the
"Amendment"). ISSC acknowledges that the Agreement was assigned by ▇▇▇▇▇
Equipment Company to ▇▇▇▇▇ Material Handling Company. This Amendment corrects,
clarifies or changes those sections of the Agreement as indicated below. Unless
modified herein, all other terms defined in the Agreement, Amendments, and
Schedules shall have the same meaning when used in this Amendment. All terms and
conditions of the Agreement and its subsequent Amendments not otherwise
specifically amended or supplemented herein remain unchanged and in full force
and effect.
The Term of this Amendment will begin as of the date it is executed by both
Parties and will run concurrently with the Agreement. Termination provisions of
the Agreement apply to this Amendment, unless specifically amended herein.
Table of Contents
Section Title Page
1.0 Background and Objectives 1
2.0 Definitions, Documents and Term 1
2.3 Associated Contract Documents 1
3.0 Transition 1
3.7 Data Lines and Connections 1
3.10 CADAM Transition 2
4.0 ISSC Responsibilities 2
4.6 Additional Machines 2
4.9 Operations, Support and Maintenance 2
4.11 Disaster Recovery 2
4.16 CADAM Software 2
5.0 ▇▇▇▇▇ Responsibilities 2
5.5 Other Responsibilities
6.0 Charges and Expenses 2
6.11 CADAM Charges 2
7.0 Invoicing and Payment 2
7.8 CADAM Invoices 2
10.0 Termination 3
10.8 CADAM Termination 3
17.0 General 3
1.0 Background and Objectives
Add the following as paragraphs four and five:
▇▇▇▇▇ desires that ISSC assume responsibility for operations and systems support
of ▇▇▇▇▇'▇ Computer Augmented Design and Manufacturing ("CADAM") applications.
This Amendment documents the terms and conditions under which ISSC will provide
such Services to ▇▇▇▇▇.
2.0 Definitions, Documents and Term
2.3 Associated Contract Documents
Replace Section 2.3(a) with the following:
a) A Supplement #4 ("Supplement") containing the Charges, Term, and other
necessary information is a part of this Agreement. Supplement #4 amends,
replaces and restates in its entirety all previous Supplements. All
references to the Supplement contained in the Agreement and any preceding
Amendments shall be deemed to refer to Supplement #4.
Note:
In reference to Section 2.3(b) and pursuant to this Amendment, copies of
Supplement #4, Revision #1 of Schedules D and K, Revision #2 of Schedules A and
B, and Revision #3 of Schedule E are attached hereto. The graphic
representation, provided by ISSC to ▇▇▇▇▇, of the communications network
requirements for the CADAM applications added under this Amendment is included
herein and will become an attachment to the next revision of Schedule 1. Such
revision will be completed by no later than 30 days following the completion of
the migration of the CADAM applications to the Data Center and an updated copy
will be distributed to the Parties.
3.0 Transition
3.7 Data Lines and Connections
Add the following as paragraph six:
▇▇▇▇▇ will assume all financial responsibility for the provision of the data
lines required to connect and support CADAM applications at the ▇▇▇▇▇ locations.
ISSC will provide, at ISSC's expense, the necessary
July 14,1993
ISSC/▇▇▇▇▇ Confidential Amendment #4 Page 1 of 3
13
1) for the CADAM Transition Charge in twelve monthly installments
beginning in January 1994.
2) monthly for the CADAM Support Charge throughout the remainder of the
Term, subject to Section 3.11 of Schedule E; and
3) monthly for the CADAM Software Charge throughout the remainder of the
term.
b) Following the execution of this Amendment, ISSC will invoice ▇▇▇▇▇ monthly
for 36 months for the CADAM Equipment Charge.
ISSC will pursue reductions in the charges related to the CADAM Software (i.e.,
license fees) and, if any such reductions are obtained, will adjust the CADAM
Software Charge to ▇▇▇▇▇ in an amount equal to the costs savings realized by
ISSC.
10.0 Termination
10.8 CADAM Termination
Add the following as Section 10.8:
a) CADAM Transition Charge
The CADAM Transition Charge must be paid in full and is not subject to the
termination provisions under the Agreement.
b) CADAM Support Charge
Upon 90 days prior written notice to ISSC, ▇▇▇▇▇ may terminate CADAM
support and the CADAM Support Charge therefor.
c) CADAM Software Charge
Upon 90 days prior written notice to ISSC, ▇▇▇▇▇ may terminate CADAM
Software services and the CADAM Software Charge therefor.
d) CADAM Equipment Charge
The CADAM Equipment Charge must be paid in full and is not subject to the
termination provisions under the Agreement.
ISSC will provide termination assistance to ▇▇▇▇▇ for ▇▇▇▇▇ applications subject
to the provisions of Section 10.6 of the Agreement.
17.0 General
The following is in addition to Section 17 of the Agreement:
In the event of any inconsistency in the terms of the Agreement and the terms of
this Amendment, the terms of this Amendment shall apply. As amended herein, the
Agreement, the Supplement #4 and all Schedules remain in full force and effect.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AMENDMENT, UNDERSTAND IT, AND
AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE PARTIES AGREE THAT
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES
RELATING TO THIS SUBJECT SHALL CONSIST OF 1) THE AMENDMENTS, 2) THE SUPPLEMENT
#4, 3) THE SCHEDULES, AND 4) THE MARCH 2, 1992 AGREEMENT. THIS STATEMENT OF THE
AMENDMENT SUPERSEDES ALL PROPOSALS OR OTHER PRIOR AGREEMENTS, ORAL OR WRITTEN,
AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THIS SUBJECT MATTER
DESCRIBED IN THIS AMENDMENT.
Accepted by: Accepted by:
Integrated Systems Solutions Corporation ▇▇▇▇▇ Material Handling Company
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------ ------------------------------------
Authorized Signature Authorized Signature
▇.▇. ▇▇▇▇▇▇▇▇▇▇ 7/15/93 ▇▇▇▇ ▇. ▇▇▇▇▇ 7/15/93
------------------------------------ ------------------------------------
Name (Type or Print) Date Name (Type or Print) Date
July 14,1993
ISSC/▇▇▇▇▇ Confidential Amendment #4 Page 3 of 3
14
ISSC / ▇▇▇▇▇ Material Handling Company
Amendment to Agreement for Systems Operations Services
▇▇▇▇▇ Material Handling Company, having its principal place of business at ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇") and Integrated Systems
Solutions Corporation, a Delaware corporation, having its headquarters at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("ISSC"), agree that the following
terms and conditions amend and/or supplement the Agreement for Systems
Operations Services, dated March 2, 1992, between ▇▇▇▇▇ and ISSC (the
"Amendment"). ISSC acknowledges that the Agreement was assigned by ▇▇▇▇▇
Equipment Company to ▇▇▇▇▇ Material Handling Company. This Amendment corrects,
clarifies or changes those sections of the Agreement as indicated below. Unless
modified herein, all other terms defined in the Agreement, Amendments, and
Schedules shall have the same meaning when used in this Amendment. All terms and
conditions of the Agreement and its subsequent Amendments not otherwise
specifically amended or supplemented herein remain unchanged and in full force
and effect.
The Term of this Amendment will begin as of the date it is executed by both
Parties and will run concurrently with the Agreement. Termination provisions of
the Agreement apply to this Amendment.
Table of Contents
Section Title Page
2 Definitions, Documents and Term 1
2.1 Definitions 1
2.3 Associated Contract Documents 1
2.5 Term 1
17 General 1
2. Definitions, Documents and Term
2.1 Definitions
Section 2.1(u) is amended to read as follows:
u) "Amendment Date" means June 1, 1993.
2.3 Associated Contract Documents
Replace Section 2.3(a) with the following:
a) A Supplement #3 ("Supplement") containing the Charges, Term, and other
necessary information is a part of this Agreement. Supplement #3 amends,
replaces and restates in its entirety all previous Supplements. All
references to the Supplement contained in the Agreement and any preceding
Amendments shall be deemed to refer to Supplement #3.
2.5 Term
Replace Section 2.5 with the following:
The Term of this Amendment will begin as of 12:01 am on June 1, 1993 and will
end as of 12:00 midnight on May 31, 2003, unless earlier terminated or extended
in accordance with this Agreement (the "Term"). This Amendment extends the Term
of the Agreement by five years, eleven months and ten days.
Note:
The above is reflected in Supplement #3, a copy of which is attached hereto.
17. General
The following is in addition to Section 17 of the Agreement:
In the event of any inconsistency in the terms of the Agreement and the terms of
this Amendment, the terms of this Amendment shall apply. As amended herein, the
Agreement, the Supplement #3 and all Schedules remain in full force and effect.
May 10,1993
ISSC/▇▇▇▇▇ Confidential Amendment #3 Page 1 of 2
15
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AMENDMENT, UNDERSTAND IT, AND
AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE PARTIES AGREE THAT
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES
RELATING TO THIS SUBJECT SHALL CONSIST OF 1) THE AMENDMENTS, 2) THE SUPPLEMENT
#3, 3) THE SCHEDULES, AND 4) THE MARCH 2, 1992 AGREEMENT. THIS STATEMENT OF THE
AMENDMENT SUPERSEDES ALL PROPOSALS OR OTHER PRIOR AGREEMENTS, ORAL OR WRITTEN,
AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THIS SUBJECT MATTER
DESCRIBED IN THIS AMENDMENT.
Accepted by: Accepted by:
Integrated Systems Solutions Corporation ▇▇▇▇▇ Material Handling Company
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------ ------------------------------------
Authorized Signature Authorized Signature
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 5/11/93 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 5/11/93
------------------------------------ ------------------------------------
Name (Type or Print) Date Name (Type or Print) Date
Project Executive Dir, Info Systems
May 10,1993
ISSC/▇▇▇▇▇ Confidential Amendment #3 Page 2 of 2
16
ISSC / ▇▇▇▇▇ Material Handling Company
Amendment to Agreement for Systems Operations Services
▇▇▇▇▇ Material Handling Company, having its principal place of business at ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇") and Integrated Systems
Solutions Corporation, a Delaware corporation, having its headquarters at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("ISSC"), agree that the following
terms and conditions amend and/or supplement the Agreement for Systems
Operations Services, dated March 2, 1992, between ▇▇▇▇▇ and ISSC (the
"Amendment"). ISSC acknowledges that the Agreement was assigned by ▇▇▇▇▇
Equipment Company to ▇▇▇▇▇ Material Handling Company. This Amendment corrects,
clarifies or changes those sections of the Agreement as indicated below. Unless
modified herein, all other terms defined in the Agreement, Amendments, and
Schedules shall have the same meaning when used in this Amendment. All terms and
conditions of the Agreement and its subsequent Amendments not otherwise
specifically amended or supplemented herein remain unchanged and in full force
and effect.
The Term of this Amendment will begin as of the date it is executed by both
Parties and will run concurrenty with the Agreement. Termination provisions of
the Agreement apply to this Amendment.
Table of Contents
Section Title Page
2 Definitions, Documents and Term 1
2.1 Definitions 1
2.2 Services Environments 1
2.3 Associated Contract Documents 1
2.5 Term 2
2.6 Renewal and Expiration 2
3 Transition 2
3.7 Data Lines and Connections 2
3.9 Staff 2
4 ISSC Responsibilities 2
4.9 Operations, Support and Maintenance 2
4.13 Help Desk 2
5 ▇▇▇▇▇ Responsibilities 3
5.5 Other Responsibilities 3
6 Charges and Expenses 3
6.2 Resource Charges and Credits 3
6.3 Excluded Resources 3
6.4 Cost of Living Adjustment 3
6.8 Extraordinary RU Decrease 3
6.10 Alternative Technology 3
7 Invoicing and Payment 4
7.2 ARC, RRC and COLA Invoices 4
10 Termination 4
10.1 Termination Upon Acquisition 4
12 Warranty 4
12.6 Claims 4
17 General 4
2. Definitions, Documents and Term
2.1 Definitions
Replace Section 2.1(h) with the following:
h) "End User Machines" means all workstations, terminals, printers, LAN
servers and associated peripheral equipment used by End Users and located
at End User Locations.
Add The following as Section 2.1(u):
u) "Amendment Date" means April 1, 1993
2.2 Services Environments
Replace Section 2.2(c) and Section 2.2(d) with the following:
c) The "Data Network" consists or all machines, associated attachments,
features and accessories, Software, data lines and cabling used to connect
and transmit data for the Data Center and ▇▇▇▇▇ End User Locations to which
▇▇▇▇▇ is connected as of the Commencement Date, including, but not limited
to, communication controllers, multiplexors, lines, modems/DSUs and other
network components, but does not include PBXs and any devices used
exclusively for Voice Communications or End User Machines.
d) The "End User Locations" consist of those locations in which End Users, End
User Machines, equipment and associated software are located, which
locations are facilities or floors in facilities outside the Data Center.
2.3 Associated Contract Documents
Replace Section 2.3 with the following
a) A Supplement #2 ("Supplement") containing the Charges, Term, and other
necessary information is a part of this Agreement. Supplement #2 amends,
replaces and restates in its entirety all previous Supplements. All
references to the Supplement contained in the Agreement and any preceding
Amendments shall be deemed to refer to Supplement #2.
b) Schedules A through Q are also part of this Agreement, and will be updated
by mutual written agreement of the Parties as necessary
April 27,1993
ISSC/▇▇▇▇▇ Confidential Amendment #2 Page 1 of 5
17
or appropriate during the term of this Agreement.
Note:
Pursuant to this Amendment, copies of Supplement #2, Revision #1 of the Table of
Schedules, Revision #2 of Schedule E, Revision #1 of Schedules I, J and M, and
new Schedules P and Q are attached hereto.
2.5 Term
Replace Section 2.5 with the following:
The Term of this Amendment will begin as of 12:01 am on April 1, 1993 and will
end as of 12:00 midnight on March 31, 2003, unless earlier terminated or
extended in accordance with this Agreement (the "Term"). This Amendment extends
the Term of the Agreement by five years, nine months and one week.
Note:
The above is reflected in Supplement #2.
2.6 Renewal and Expiration
Replace Section 2.6(a) with the following:
a) Extending the Term of the Agreement for an additional five years at the
charges, terms, conditions and Resource Baselines in effect for ▇▇▇▇▇ in
the tenth year of this Agreement; or
3. Transition
3.7 Data Lines and Connections
Add the following as paragraph five to Section 3.7:
ISSC will assume all financial, including all cash and expense connected
thereof, and administrative responsibility for relocating the Data Network
communication lines from ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (The "▇▇▇▇▇
Facility") to the Data Center, such relocation to be completed by no later than
March 31, 1994. In the interim, ISSC will manage the Data Network remotely.
▇▇▇▇▇ will designate a person who, during normal business hours, will monitor
the Data Network equipment located at the ▇▇▇▇▇ Facility on a regular and as
needed basis and provide to ISSC the input reasonably required for problem
analysis and problem determination in the event of Data Network component
failure. ISSC will monitor such equipment during off-shift hours and ▇▇▇▇▇ will
provide ISSC with access to the ▇▇▇▇▇ Facility, as reasonably required.
3.9 Staff
Add the following as Section 3.9:
a) By no later than 30 days after the execution of this Amendment, ISSC or its
subcontractors will consider those ▇▇▇▇▇ employees listed on Schedule P
(the "Affected Employees") for employment with ISSC or its subcontractors.
ISSC or its subcontractors will be solely responsible for making any hiring
decisions regarding the Affected Employees.
b) ISSC or its subcontractors will hire those Affected Employees receiving
offers who:
1) are employed by ▇▇▇▇▇ as of the date the offer is made.
2) meet ISSC's or its subcontractors' customary preemployment screening
procedures for health, drug and background criteria: and
3) accept the offer of employment from ISSC or its subcontractors within
ten days from the date the offer is made.
c) Any Affected Employee remaining on ▇▇▇▇▇'▇ payroll shall perform their
duties under the direction and control of ▇▇▇▇▇ and will be treated as a
▇▇▇▇▇ employee for all purposes;
d) Each offer of employment to an Affected Employee shall include:
1) an initial base salary not less than the base salary each such
Affected Employee currently receives from ▇▇▇▇▇;
2) the benefits package available to similarly situated ISSC or
subcontractor employees; and
3) a minimum employment period of one year.
4. ISSC Responsibilities
4.9 Operations, Support and Maintenance
Add the following as Sections 4.9 (k), (l), (m), (n), (o), (p) and (q):
k) manage The Data Network, including the WAN Network, the LAN Network and the
3270 Terminal Network, as set forth in Schedule 1, and provide problem
diagnosis and coordination of vendor services to ensure problem resolution;
l) annually review ▇▇▇▇▇'▇ Data Network facilities and services and recommend
appropriate changes for keeping the Data Network at a current level of
technology;
m) provide advice related to the implementation of new Data Network
components;
n) manage connectivity for new installations, including the Dealer Network, of
session establishment between an End User and a ▇▇▇▇▇ approved application;
o) provide, on an annual basis, a mutually agreed upon listing of additional
ISSC services available to ▇▇▇▇▇, including the price of each individual
service;
p) perform Envoy administrative functions, including, but not limited to, the
following:
1) initiating new Envoy mailboxes to include phone assistance, through
the help desk, to aid new Envoy users during initial start-up;
2) updating Envoy directories;
3) managing and performing the weekly Envoy user's directory exchange;
and
4) providing data, by the tenth business day of each month, to support
▇▇▇▇▇'▇ Envoy billing functions and assist ▇▇▇▇▇ with Envoy users'
inquiries to the extent that such inquiries pertain to the billing
data provided by ISSC.
April 27,1993
ISSC/▇▇▇▇▇ Confidential Amendment #2 Page 2 of 5
18
q) update the soft copy of the Envoy User's Guide, as appropriate, and deliver
one revised hard copy annually to a designated ▇▇▇▇▇ employee for
distribution to ▇▇▇▇▇'▇ dealers;
r) provide formal training classes for Envoy users, upon ▇▇▇▇▇'▇ request and
at an additional price to be determined by ISSC at the time of such
request, and
s) manage the Data Network by:
1) providing alert monitoring, trouble analysis (first and second level)
and problem resolution;
2) actively monitoring Data Network components;
3) placing service calls to vendors to perform corrective maintenance;
and
4) managing problems to resolution including escalating all problems that
impact ▇▇▇▇▇'▇ business operations in accordance with established
procedures as defined in the Procedures Manual;
collectively, the above constitutes the "Network Control Center."
4.13 Help Desk
Replace Section 4.13 with the following:
ISSC will provide initial, single point-of-contact support to End Users,
including ▇▇▇▇▇'▇ dealers and other authorized agents, to assist them with
problem determination, how-to questions, systems and Data Network status,
problem recording and reporting, problem resolution, and changes which may
affect them. Help desk support is more fully described in Schedule M.
ISSC shall provide ▇▇▇▇▇ on-line access to ▇▇▇▇▇'▇ problem management records
("PMRs") and such file shall be updated daily.
5. ▇▇▇▇▇ Responsibilities
5.5 Other Responsibilities
Replace Sections 5.5(p) and 5.5(r) with the following:
p) maintain responsibility for voice communications;
r) provide ISSC with reasonable prior notice regarding any planned changes by
▇▇▇▇▇ to the Data Network or Envoy billing;
s) provide a Procedures Manual update detailing the functions necessary for
ISSC to perform and support Envoy; and
t) provide formal training classes for Envoy users.
6. Charges and Expenses
6.2 Resource Charges and Credits
Replace Section 6.2 with the following:
During the month following the Amendment Date, ISSC will review the quantity of
Resource Units utilized by ▇▇▇▇▇ and calculate Additional Resource Charges
(ARCs) and/or Reduced Resource Credits (RRCs), as applicable, per Section 1.3 of
Revision #1 of Schedule J.
Commencing on or about January 1, 1994 and semiannually thereafter, ISSC will
review the quantity of Resource Units utilized by ▇▇▇▇▇ during the preceding
period and calculate Additional Resource Charges (ARCs) and/or Reduced Resource
Credits (RRCs).
The Resource Unit categories, Resource Baselines, ARC Rates and RRC Rates are
described in Revision #1 of Schedule J and specified in the Supplement.
6.3 Excluded Resources
Replace Section 6.3 with the following:
In determining the amount of Resource Units used to provide the Services, ISSC
shall exclude:
a) resources used for systems overhead as determined by the resource
measurement methodology specified in Schedule J;
b) resources used by ISSC to monitor or measure the amount of resources used;
c) resources used by ISSC to perform ISSC billing functions;
d) resources used to perform reruns resulting from the fault of ISSC;
e) resources used by ISSC to manage and tune Systems Software;
f) resources used by ISSC to upgrade, test or alter Systems Software;
g) resources used to monitor and manage the Data Network; and
h) such other exclusions as detailed in Schedule J.
6.4 Cost of Living Adjustment
Replace Section 6.4 with The following
The Annual Services Charge and the ARC Rates include protection against
inflation at a rate of up to and including 3.0 percent per year compounded
annually starting with the CPI-U for December 1992 as the base year ("Protection
Index"). ▇▇▇▇▇ agrees to pay ISSC a Cost of Living Adjustment ("COLA") beginning
12 months after the Amendment Date if actual cumulative inflation exceeds the
Protection Index.
The Parties agree to use the Consumer Price Index, as published by the Bureau of
Labor Statistics, U.S. Department of Labor, For All Urban Consumers, U.S. City
Average, All Items, 1982-84 = 100 ("CPI-U") for purposes of calculating actual
inflation.
The COLA will be calculated using the COLA factor specified below. The COLA is
payable on a prospective basis, i.e., the Annual Services Charge and net
ARCs/RRCs payable by ▇▇▇▇▇ for the subsequent calendar year will be surcharged
by the factor as determined below, if such factor is in excess of zero. The COLA
factor will be determined as soon as practicable after the end of each calendar
year. The COLA factor is:
[(Actual Inflation - Protected Inflation) / Base Year) x .50
where:
April 27,1993
ISSC/▇▇▇▇▇ Confidential Amendment #2 Page 3 of 5
19
Actual Inflation = CPI-U for the December preceding the year
for which COLA is being calculated,
Protected Inflation = the Protection Index for the year preceding the year
for which COLA is being, calculated (specified on
the Supplement), and
Base Year = CPI-U for December of the year previous to the
Amendment Date
In the event the Bureau or Labor Statistics stops publishing the CPI-U or
substantially changes its content and format, the Parties will substitute
another comparable index published at least annually by a mutually agreeable
source. If the Bureau of Labor Statistics merely redefines the base year for the
CPI-U from 1982-84 to another year, the Parties will continue to use the CPI-U,
but will convert the Protection Index to the new base year by using an
appropriate conversion formula.
6.8 Extraordinary RU Decrease
Replace Section 6.8 with the following:
In the event ▇▇▇▇▇ experiences a long term reduction (minimum of three months
with such reduction anticipated to continue through the foreseeable future) in
the amount or CPU resources used to process the work of ▇▇▇▇▇ and its Affiliates
and
a) the reduced CPU usage is not a result of assigning Services provided under
this Agreement to another outsourcing vendor, and
b) such reduction is not less than 35 percent of the CPU Original Baseline
then:
1) the amount or the Annual Services Charge payable to ISSC pursuant to
this Section will thereupon be lowered by the amount by which ISSC's
actual and direct expenses for performing hereunder are decreased as a
result or such change; and
2) the applicable Resource Baselines and ARC/RRC Rates will be equitably
adjusted to reflect the reduced resource utilization at that time.
The reduction of the Annual Services Charge, Resource Baselines and ARC/RRC
Rates, if any, will be retroactive to the beginning of the three month period
referenced above.
6.10 Alternative Technology
Add the following as Section 6.10:
In the event that anytime during the Term of this Agreement and any renewal
periods ▇▇▇▇▇ elects to migrate a significant portion (10% or more of the
Original Baseline quantity for CPU minutes) or the host based applications and
processing provided under this Agreement to an alternative technology (e.g.,
client server) and ISSC is selected as the supplier of such alternative
technology solution, then, ISSC will reprice the Services, upon ▇▇▇▇▇'▇
notification that the migration is complete, at the reduced resource usage
levels using the then current pricing methodology or the pricing methodology
used to price the resources being delivered under this Amendment #2, whichever
is most beneficial to ▇▇▇▇▇.
▇▇▇▇▇ may provide up lo a maximum of 15% of the resources required to implement
the new solution subject to the following exclusions:
a) ▇▇▇▇▇ may use any ▇▇▇▇▇ or ▇▇▇▇▇ Affiliate resource(s) (software, hardware
or personnel) that is owned, leased, licensed or on ▇▇▇▇▇ s payroll as or
the Amendment date and the value of such resource(s) will not be counted
toward the 15% limitation referenced above;
b) ▇▇▇▇▇ may use any ▇▇▇▇▇ or ▇▇▇▇▇ Affiliate resource(s) (software, hardware
or personnel) that is owned, leased, licensed or on ▇▇▇▇▇'▇ payroll more
than 24 months prior to selecting ISSC as the solutions provider and the
value or such resource(s) will not be counted toward the 15% limitation
referenced above; and
c) Software function(s) owned or licensed by ▇▇▇▇▇ or ▇▇▇▇▇ Affiliate and
existing as or the Amendment Date or more than 24 months prior to selecting
ISSC as the solutions provider which can be migrated from the host
environment to the Alternative Technology platform may be included in the
solution and the value of such software function(s) will not be counted
toward the 15% limitation referenced above.
Should ▇▇▇▇▇ decide to provide the services internally or select another
vendor to provide the services, then the credit for reduction in resources
would be subject to other applicable provisions of the Agreement.
7. Invoicing and Payment
7.2 ARC, RRC and COLA Invoices
Replace Section 7.2 with the following:
In the first month following the Amendment Date and each January and July
thereafter, ISSC will invoice ▇▇▇▇▇ for ARCs or RRCs, if any, pursuant to
Section 1.3 of Revision # 1 of Schedule J. ISSC will invoice ▇▇▇▇▇ for COLA
starting on the first anniversary of the Amendment Date and monthly thereafter
in accordance with Section 6.4.
10. Termination
10.1 Termination Upon Acquisition
Replace Section 10.1 with the following:
If substantially all of the business or assets of ▇▇▇▇▇ Material Handling
Company is sold to, acquired by or merged into another entity or person and the
acquiring or other entity or person elects not to adopt or continue this
Agreement, ▇▇▇▇▇, the acquiring or other entity or person, may terminate this
Agreement within one year following such acquisition if
a) the merger, acquisition or sale is completed, and
b) there has been a minimum of one year's written notification prior to the
effective date of termination to ISSC and
April 27,1993
ISSC/▇▇▇▇▇ Confidential Amendment #2 Page 4 of 5
20
c) ▇▇▇▇▇ pays the termination charges to ISSC specified under Termination Upon
Acquisition in the Supplement.
Any termination charge will be prorated for the month of termination.
12. Warranty
12.6 Claims
Add the following as Section 12.6:
▇▇▇▇▇ warrants it has no knowledge and that it has not received notice of any
actual or threatened claim or action by, on behalf of or related to, any of the
Affected Employees, including, but not limited to, claims arising under the
Occupational Safety and Health Administration, Equal Employment Opportunity
Commission, National Labor Relations Board or Fair Labor Standards Act, or
other applicable state or local laws or regulations, except as claims or actions
are identified in Schedule Q.
17. General
The following is in addition to Section 17 of the Agreement:
In the event of any inconsistency in the terms of the Agreement and the terms of
this Amendment, the terms of this Amendment shall apply. As amended herein, the
Agreement, the Supplement #2 and all Schedules remain in full force and effect.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AMENDMENT, UNDERSTAND IT, AND
AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE PARTIES AGREE THAT
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES
RELATING TO THIS SUBJECT SHALL CONSIST OF 1) THE AMENDMENTS, 2) THE SUPPLEMENT
#2, 3) THE SCHEDULES, AND 4) THE MARCH 2, 1992 AGREEMENT. THIS STATEMENT OF THE
AMENDMENT SUPERSEDES ALL PROPOSALS OR OTHER PRIOR AGREEMENTS, ORAL OR WRITTEN,
AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THIS SUBJECT MATTER
DESCRIBED IN THIS AMENDMENT.
Accepted by: Accepted by:
Integrated Systems Solutions Corporation ▇▇▇▇▇ material Handling Company
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
------------------------------------ ------------------------------------
Authorized Signature Authorized Signature
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 5/3/93 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III 4/30/93
------------------------------------ ------------------------------------
Name (Type or Print) Date Name (Type or Print) Date
Project Executive
April 27,1993
ISSC/▇▇▇▇▇ Confidential Amendment #2 Page 5 of 5
21
ISSC / ▇▇▇▇▇ Material Handling Company
Amendment to Agreement for Systems Operations Services
--------------------------------------------------------------------------------
▇▇▇▇▇ Material Handling Company, a business unit of TEREX CORPORATION, a
corporation having a place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇") and Integrated Systems Solutions Corporation, a wholly
owned IBM subsidiary, having its headquarters at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("ISSC"), agree that the following terms and
conditions amend and/or supplement the Agreement for System Operations Services,
dated March 2, 1992, between ▇▇▇▇▇ and ISSC (the "Amendment"). This Amendment
changes the section(s) of the Agreement as indicated below. Unless modified
herein, all other terms defined in the Agreement, Amendments, and Schedules
shall have the same meaning when used in this Amendment. All terms and
conditions of the Agreement and its subsequent Amendments not otherwise
specifically amended or supplemented herein remain unchanged and in full force
and effect.
The Term of this Amendment will begin as of the date it is executed by both
Parties and will run concurrently with the Agreement. Termination provisions of
the Agreement apply to this Amendment. Termination of this Amendment may only
be effected through termination of the Agreement, as amended.
Table of Contents
Section Title Page
2 Definitions, Documents and Term 1
2.1 Definitions 1
2.5 Term 1
3 Transition 1
3.1 Overview 1
17 General 1
2. Definitions, Documents and Term
2.1 Definitions
Section 2.1(i) is amended to read:
i) "Implementation Date" means June 22, 1992.
2.5 Term
Section 2.5 is amended to read:
The Term of this Agreement will begin at of 12:01 a m. on the Commencement Date
and will end as of 12:00 midnight on June 21, 1997 unless earlier terminated or
extended in accordance with this Agreement (the "Term" ).
Note:
The above is reflected in Revision #1 of the Supplement attached hereto.
3. Transition
3.1 Overview
Paragraph one of Section 3.1 is amended to read:
There will be a transition period beginning on the Commencement Date and
continuing through no later than June 22, 1992 (the "Transition Period"). The
Transition Period may be extended with mutual agreement of the Parties. During
the Transition Period, the Parties will commence and complete a phased
transition of the Services from the ▇▇▇▇▇ Data Center to the Data Center.
17. General
The following is in addition to Section 17 of the Agreement:
In the event of any inconsistency between the terms of the Agreement, its
Amendments and the terms of this Amendment, the terms of this Amendment shall
apply.
October 9, 1993
ISSC/▇▇▇▇▇ Confidential Amendment #1 Page 1 of 2
22
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AMENDMENT, UNDERSTAND IT, AND
AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE PARTIES AGREE THAT
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES
RELATING TO THIS SUBJECT SHALL CONSIST OF 1) THE AMENDMENTS 2) THE SUPPLEMENT,
3) THE SCHEDULES, AND 4) THE MARCH 2, 1992 AGREEMENT. THIS STATEMENT OF THE
AMENDMENT SUPERSEDES ALL PROPOSALS OR OTHER PRIOR AGREEMENTS, ORAL OR WRITTEN,
AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THIS SUBJECT MATTER
DESCRIBED IN THIS AMENDMENT.
Accepted by: Accepted by:
Integrated Systems Solutions Corporation ▇▇▇▇▇ Material Handling Company
(a business unit of TEREX CORPORATION)
By /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇ By /s/ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------ ------------------------------------
Authorized Signature Authorized Signature
▇. ▇. ▇▇▇▇▇▇▇▇▇▇ 12/14/92 ▇. ▇▇▇▇▇▇▇▇▇ 12/11/92
------------------------------------ ------------------------------------
Name (Type or Print) Date Name (Type or Print) Date
October 9, 1992
ISSC/▇▇▇▇▇ Confidential Amendment #1 Page 2 of 2
23
