MASTER SOFTWARE LICENSE AGREEMENT (Monthly)
EXHIBIT 10.71
CERTAIN
INFORMATION (INDICATED BY ASTERISKS) IN THIS EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
PRIMAL
MASTER
SOFTWARE LICENSE AGREEMENT (Monthly)
THIS MASTER SOFTWARE LICENSE AGREEMENT
(“Agreement”) is made and entered into as of December 11, 2002 (the “Effective
Date”), by and between Primal Solutions, Inc., a Delaware corporation, with its
principal place of business located at ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Primal”), and Time Warner Cable Information Services
(Maine), LLC, a Limited Liability Company organized under the laws of the State
of Delaware with its principle place of business located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (“Licensee”).
RECITALS
1. On
the terms and conditions set forth herein, Licensee desires to obtain from
Primal, and Primal desires to grant to Licensee, a license to use (i) one copy
of each of the computer programs described and set forth in a Schedule (as
defined below), including without limitation any Error Corrections, Basic
Enhancements, Releases, Custom Software, other updates provided by Primal, and
any and all development tools, routines, subroutines, applications, software,
templates, and other materials relating to any of the foregoing (collectively,
the “Programs”), and (ii) the related documentation, and other Primal
publications related to the Programs (the “Documentation”), which Documentation
shall be provided to Licensee prior to execution of this Agreement,
and shall include complete, current, accurate, comprehensive, clear,
English-language user guides and specifications describing the operation and use
of the Program, that reasonably enable the intended users to install, configure
and operate such Program. Each Schedule shall be mutually agreed to in writing
by the parties and incorporated herein by reference (each, a “Schedule”), and
may be amended from time to time by mutual written agreement of the
parties.
2. The
Programs and the Documentation are collectively referred herein as the
“Software.”
3. This
Agreement consists of this Master Software License Agreement (the “MSLA”) and
the Schedules. In the event of a conflict between the MSLA and a
Schedule, the MSLA shall control.
AGREEMENT
NOW THEREFORE, in consideration of the
mutual promises and covenants set forth herein, Primal and Licensee agree as
follows:
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1.
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SOFTWARE
LICENSE; THIRD PARTY PRODUCTS AND SERVICES; INSTALLATION; DELIVERY;
ACCEPTANCE TESTING
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1.1
License.
Primal hereby grants to Licensee, and Licensee hereby accepts from Primal,
subject to the terms and conditions of this Agreement, a nontransferable (except
as set forth in Section 11), non-sublicenseable, nonexclusive license (the
“License”) for the term of this Agreement (i) for its and its Affiliates’
employees, agents and contractors to use one copy (subject to the last sentence
of this paragraph) of each Program, in executable object code form only (subject
to Section 15), solely at the location(s) specified in the applicable Schedule,
or any supplements thereto with respect to such Programs (the “Designated
Location(s)”) for Licensee’s and its Affiliates’ data processing needs and (ii)
to make and use a reasonable number of copies of the Documentation solely in
connection with the License. Licensee agrees to immediately notify
Primal in writing if it installs the Software at any other site(s) other than
the Designated Location(s). The License includes the right to copy
and use the Software as reasonably required by Licensee solely for its own or
its Affiliates’ internal data processing needs at the Designated Location(s) and
for testing, archival, back-up, and disaster recovery purposes.
1.2
Licensed
Use. Licensee acknowledges and agrees that the Programs are licensed
and not sold. Licensee and Licensor agree that Licensee and its
Affiliates and any of their employees, agents and contractors are end users in
that they are using the Software solely for their own internal business
purposes, and that the License does not include any right to use or authorize
the use of the Software for any purpose other than to fulfill the internal data
processing needs of Licensee and its Affiliates. Licensee
acknowledges and agrees that it has no right whatsoever to license the use,
reproduction, or distribution of the Software to any third person, firm or
entity (not including its Affiliate) and Licensee has no right to use any of the
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Software
to provide data processing services to any third party (not including its
Affiliate) on a service bureau, application service provider, or time-sharing
basis, or otherwise. Notwithstanding anything to the contrary in this
Agreement, Licensee’s and it’s Affiliates’ customers (“Subscribers”) shall have
the right to access and use the web-based presentation of call detail records
provided by or through the Programs (the “Subscriber Site”).
1.3
Source
Code. Subject to Section 15, Primal shall not provide Licensee with a
copy of, and Licensee acquires no right of any kind with respect to, any source
code for any of the Programs. Licensee agrees not to, and shall
require that its employees, contractors or agents do not, attempt to create or
discover, by de-compiling, disassembling, reverse engineering or otherwise, the
source code for any of the Programs. Licensee acknowledges and agrees that,
subject to Section 15, it has no right whatsoever to modify the Software or any
portion thereof in any manner.
1.4
Third
Party Products and Services. Primal hereby represents and warrants
that the lists of hardware (“Hardware”), third party software, and other third
party products set forth on the Schedule(s) are complete lists of the products
and services composing the environment that will be necessary and appropriate
for Licensee to host and operate the Programs in accordance with their
Documentation (the “Licensee-Provided Third Party Products and Services”), with
the sole exception of any such third party products that will be procured by
Primal on Licensee’s behalf as identified on the applicable Schedule
(collectively, “Primal-Provided Third Party Products”), the invoices for which
Primal shall forward to Licensee for payment. Any license or other
vendor agreements pertaining to the Primal-Provided Third Party Products shall
be subject to Licensee’s prior approval and shall be entered into directly
between Licensee and the third party vendor of such Primal-Provided Third Party
Products. The Licensee-Provided Third Party Products and Services and
the Primal-Provided Third Party Products shall be referred to together in this
Agreement as the “Third Party Products and Services.” The Third Party
Products and Services together with the Programs shall be referred to together
in this Agreement as the “Environment.”
1.5
Installation. Unless
otherwise agreed by the parties in a Schedule, Licensee shall be responsible for
causing the hardware and software components of the Licensee-Provided Third
Party Products and Services to be delivered to Primal at Licensee’s
expense. Upon Primal’s receipt thereof, Primal shall load and
configure such hardware and software with the Software and the Primal-Provided
Third Party Products, create program and data directories, and load test data in
order to perform the Factory Acceptance Test (FAT). Primal shall then
perform the FAT and shall remedy any problems detected in the course of the FAT
until the FAT is satisfied. Primal shall not be held responsible for
customs clearance time or other potential delays to the arrival of any
Licensee-Provided Third Party Products and Services or Primal-Provided Third
Party Products, unless such delays are caused by the fault of Primal or its
employees, agents or contractors. Within thirty (30) days after the
Effective Date, and otherwise pursuant to the milestones set forth in the
applicable Schedule (subject to any delays caused by Licensee’s failure to
provide Primal with the Licensee-Provided Third Party Products and Services on
time), Primal shall install the Hardware (loaded and configured with the
Programs, the Primal-Provided Third Party Products and the software components
of the Licensee-Provided Third Party Products and Services, and the program and
data directories and test data, all in satisfaction of the FAT) (the
“Installation”). Upon completion of the Installation, Licensee shall notify
Primal of its intent to install the Programs at the Designated Location or have
Primal host the Programs at Primal’s facilities and in its own environment (“the
Hosted Environment”) for a temporary period until Notice of Designated Location
Software Acceptance (“the Temporary Hosting Period”) in accordance with the
terms set forth in Schedule 3 to this Agreement. If Licensee chooses
to have the programs installed at the Designated Location immediately after
Installation, or at any time thereafter, Installation at Designated Location
shall proceed in accordance with Section 1.7, below. If Licensee
chooses to have the Programs hosted in the Hosted Environment, installation and
configuration of the Programs shall proceed in accordance with Schedule 3 to
this Agreement.
1.6
Acceptance
Testing of Software. In accordance with the applicable Schedules, the
parties to this Agreement shall execute Acceptance Test Plan(s) which shall set
forth the agreed upon acceptance test criteria for the Software’s conformity
with the Documentation. Said Acceptance Test Plan(s) shall
be
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incorporated
by Reference into this Agreement. In the event that the parties have
not executed such Acceptance Test Plan within such time frame, Licensee shall
have the right to terminate this Agreement with Licensee having no further
liability or obligation, in which event Primal shall immediately refund all sums
paid by Licensee to Primal under this Agreement.
Upon
completion of the Installation in the Hosted Environment pursuant to Section 1.5
Primal shall provide a Notice of Installation. Within ten (10) days
of Notice of Installation, , Licensee shall start to test and evaluate the
Installation, as installed, to determine whether it materially conforms to the
to the criteria set forth in the Acceptance Test Plan as so
installed. Within twenty (20) days of Notice of Installation,
Licensee shall complete Acceptance Testing. If Licensee determines in
its sole discretion that the Installation does not pass such acceptance testing,
Licensee shall notify Primal in writing that it is rejecting such Installation,
specifying sections of the Acceptance Test Plan with which the Installation does
not comply and describing the alleged deficiencies in reasonable
detail. Within five (5) days of Licensee’s rejection notice to
Primal, and at no charge, Primal shall correct any such deficiencies. Licensee
shall then re-evaluate such Installation to determine whether the Installation
satisfies such acceptance testing (“Correction Process”). If Primal
does not, in Licensee’s discretion, remedy the deficiency: (a) Licensee may
elect to allow Primal to repeat the Correction Process until Licensee accepts
the Installation, or (b) Licensee may terminate this Agreement with Licensee
having no further liability or obligation, in which event Primal shall
immediately refund all License and hosting fees paid by Licensee to Primal under
this Agreement.
Upon
accepting the Installation, Licensee shall provide a written notice of
acceptance to Primal (“Notice of Hosted Software Acceptance”), the form of which
shall be set forth in the Acceptance Test Plan. Licensee, at
its sole discretion, may provide a Notice of Provisional Acceptance, the form of
which shall be set forth in the Acceptance Test Plan which shall specify
sections of the Acceptance Test Plan with which the Installation does not comply
and describing the alleged deficiencies in reasonable detail and the time frames
in which the deficiencies shall be corrected. If Licensee does
not complete Acceptance Testing within 20 days of Notice of Installation, Primal
may provide written notice of Failure to Complete Acceptance
Testing. If Licensee does not respond to the Notice of Failure to
Complete Acceptance Testing within with ten (10) days, the Agreement shall be
deemed terminated. Licensee’s License and hosting fee payment
obligations under this Agreement shall be subject to Licensee’s Notice of Hosted
Software Acceptance or Notice of Provisional Acceptance. In no case
shall the Programs be used for commercial purposes in providing services to
Licensee’s Subscribers (which Subscribers shall not include “Friendly”
subscribers for trial purposes up to and including February 28, 2003) prior to
Licensee issuing a Notice of Hosted Software Acceptance or Notice of Provisional
Acceptance.
Upon
Primal’s completion of the Installation at a Designated Location pursuant to
Section 1.7, Licensee shall test and evaluate the Installation, as installed, to
determine whether it materially conforms to the criteria set forth in the
Acceptance Test Plan as so installed. If Licensee determines in its
sole discretion that the Installation does not pass such acceptance testing,
Licensee shall notify Primal in writing that it is rejecting such Installation,
specifying sections of the Acceptance Test Plan with which the Installation does
not comply and describing the alleged deficiencies in reasonable
detail. Primal at no charge shall correct any such deficiencies
within the time frames set forth in Schedule 4 of this agreement, commencing
from the actual delivery of Licensee’s rejection notice to Primal,
and,. Licensee shall then re-evaluate such Installation to determine whether the
Installation satisfies such acceptance testing (“Correction
Process”). If Primal does not, in Licensee’s discretion, remedy any
deficiency or deficiencies classified as a Priority 1 or Priority 2 item: (a)
Licensee may elect to allow Primal to repeat the Correction Process until
Licensee accepts the Installation, or (b) Licensee may terminate this Agreement
with Licensee having no further liability or obligation, in which event Primal
shall immediately refund, on a pro rata basis from the date of commencement of
Installation at the Designated Location, all License fees paid in advance by
Licensee to Primal under this Agreement.
Upon
accepting the Installation as installed at a Designated Location, Licensee shall
provide a written notice of acceptance to Primal (“Notice of Designated Location
Software Acceptance”), the form of which shall be set forth in the Acceptance
Test Plan. Licensee’s Licensee fee payment obligations under this
Agreement shall be subject to Licensee’s Notice of Designated Location Software
Acceptance.
1.7
Installation
at Designated Location(s). Licensee shall prepare its Designated
Location(s) to meet the requirements set forth in the Documentation and the
Statement of Work, and shall notify Primal that the
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Designated
Location(s) is so prepared and arrange for Primal to ship the Installation to
the Designated Location(s) and to arrive at the Designated Location(s) to set up
and configure the Installation at the Designated Location(s). Actual,
reasonable shipping expenses are the responsibility of Licensee. On
the date requested by Licensee, Primal shall arrive at the Designated
Location(s) and set up and configure the Installation at the Designated
Location(s). Any delay from the agreed upon installation plan once
Primal personnel arrive at the Designated Location to install the loaded and
configured Hardware may result in additional charges, unless such delays are
caused by the fault of Primal or its employees, agents or
contractors.
1.8
Title;
Risk of Loss. Title to the Primal-Provided Third Party Products shall
vest in Licensee immediately upon purchase, or otherwise in accordance with the
respective seller’s terms and conditions. However, Primal shall bear
the risk of loss for the Primal-Provided Third Party Products until they have
been delivered and installed at the Designated Location by Primal in accordance
with Section 1.7. Primal shall bear the risk of loss for the hardware
and software components of the Licensee-Provided Third Party Products and
Service from the time that they are delivered to Primal by or on behalf of
Licensee through the time that they have shipped from Primal’s office to the
Designated Location in accordance with Section
1.7. In no case shall title to such Primal-Provided Third Party
Products ever vest in Primal. Subject to Section 16.17, any insurance
for such Licensee Provided Third Party Products or Primal-Provided Third Party
Products, and any associated fees, shall be the sole responsibility of
Licensee.
1.9
Upgrades
in Third Party Products and Services. From time to time and in its
sole discretion, Primal may direct Licensee to upgrade to a different version of
any particular item of Third Party Products and Services to ensure compatibility
and/or interoperability with the Software (“Required Upgrades”), provided that
in no event shall the cumulative costs of the Required Upgrades for any
particular Third Party Product or Service exceed, in the aggregate, one hundred
and ten percent (110%) of the original cost of such Third Party Product or
Service, nor shall the maintenance fees for such Third Party Product or Service
increase by more than ten percent (10%) from the original maintenance fees for
such Third Party Product or Service as a result of the Required Upgrades
(collectively, the “Allowed Upgrade Cost”). In such event, if
Licensee does not implement the Required Upgrades within ninety (90) days after
receiving written notice from Primal, Primal shall have the right, upon thirty
(30) days written notice to Licensee, to restrict the services provided under
the Maintenance Program to the extent impacted by Licensee’s failure to
implement the Required Upgrades.
1.10 Disclaimer
for Third Party Products and Services. LICENSEE ACKNOWLEDGES THAT,
EXCEPT AS SET FORTH IN SECTIONS 1.4, 1.5, 1.7, 1.10, 5 and 6, PRIMAL HAS NOT
MADE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE THIRD PARTY PRODUCTS
AND SERVICES OR THE FUNCTIONALITY THEREOF. Except as set forth in
Sections 1.4, 1.5, 1.6, 5 and 6, nothing in this Agreement shall obligate Primal
to provide any support for the Third Party Products and
Services. Except as set forth in Sections 1.4, 1.5, 1.6, 5 and 6,
Primal is not responsible for any liability, claim, loss or damage of any kind
(including in strict liability or in tort), caused by the Third Party Products
and Services or any inadequacy thereof for any purpose, or any deficiency or
defect therein, or the use or maintenance thereof, or any repairs, servicing or
adjustments thereto; or any loss of business, or any damages whatsoever and
howsoever caused by the Third Party Products and Services, except for any of the
foregoing caused by the negligence or willful misconduct of Primal or its
employees, agents or contractors.
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2.
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TERM
AND TERMINATION
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2.1
The
initial term (the “Initial Term”) of this Agreement shall commence on the
Effective Date and shall continue for a period of [***] ([***])
years. Thereafter, this Agreement shall renew automatically for
successive one (1) year periods (each a “Renewal Term”) unless either party
provides the other with written notice of its intent to terminate this Agreement
at least thirty (30) days prior to the end of the then-current
[***]
Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.
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Initial
or Renewal Term, as applicable, or unless this Agreement is otherwise terminated
in accordance with its terms. The Initial Term and any Renewal Terms
are referred to collectively herein as the “Term.”
2.2
Either
party may terminate this Agreement at any time, by providing at least thirty
(30) days written notice to the other party of such termination, in the event of
a material breach by the other party that remains uncured after thirty (30) days
following its receipt of written notice of such breach, provided that in the
event such breach cannot reasonably be cured within such time period, Primal
shall not have the right to terminate this Agreement for such breach unless
Licensee has not commenced and diligently continued the processes of curing such
breach within such time period. Notwithstanding the terms of this
paragraph, Primal shall have the right to terminate this Agreement for
non-payment of any amounts due under this contract pursuant to Section 2.4
below.
2.3
Licensee
shall have the right to terminate this Agreement for any reason or no reason,
upon thirty (30) days written notice to Primal, provided that no such
termination shall be effective prior to the one (1) year anniversary of the
Effective Date.
2.4
Primal
shall have the right to terminate this Agreement as a result of Licensee’s
non-payment of license fees pursuant Section 3.1 of this Agreement, provided
that, in the event of such non-payment of license fees, Primal shall first
provide Licensee written notice of non-payment and Licensee shall have thirty
(30) days from the date that such notice is given to cure such breach or state
with specificity any portion of a license payment that is disputed. If a
resolution of any dispute regarding non payment of any license or hosting fees
can not be resolved within 30 days from the date notice is given regarding any
disputed fee, and if Primal has a good faith dispute with respect thereto,
Primal may terminate this Agreement subject to the provisions of Section 2.6
below. If within any twelve month period Licensee breaches the
payment provisions of this Agreement, and does not cure such breach with thirty
(30) days of Primal’s written notice to Licensee of such breach, Primal may at
its discretion require that Licensee deposit an advance payment equal to two
months of the then current License Fees or Hosting Fees.
2.5
Primal
shall not have the right to suspend its performance or any licenses under this
Agreement as a result of Licensee’s breach or other dispute unless and until
Primal has exercised it right to terminate this Agreement pursuant to the terms
and conditions of this Section 2. All liabilities accruing up to the
expiration of the Term or any termination of this Agreement shall survive such
date. Notwithstanding any law to the contrary, neither party shall be
liable to the other, by reason of its termination of this Agreement in
accordance with the provisions hereof, for any premium, compensation,
reimbursement, or lost profits.
2.6
In any
event of termination of this Agreement for any reason, Licensee shall have the
right, as necessary in Licensee’s discretion, to continue to exercise its rights
under this Agreement for a wind-down period of nine (9) months after the date of
such termination, such that such termination and transition to an alternative
product shall be orderly, efficient and seamless and, to the extent possible,
have no impact on Subscribers, subject to the terms of this Agreement and
Licensee’s payment of the applicable undisputed fees due as set forth in the
applicable Schedule. After such transition period, the rights of
Licensee to possess or use the Software shall end, and Licensee shall
immediately, at Primal’s sole option, either deliver to Primal or destroy the
original Software and all copies of the Software or any portion thereof
(including any summaries or extracts of the Documentation) in its possession or
control, and an officer of Licensee shall certify in writing to Primal that
Licensee has complied with the terms of this Section 2.6.
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3.
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LICENSEE
FEES—PAYMENT
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3.1
All fees
due hereunder are stated and shall be payable in U.S. dollars. Unless
otherwise set forth in this Agreement or any amendment signed by the parties,
all payments due Primal shall be paid, without deduction or offset, in advance
on the first of each month for use of the Software during such
month. Outstanding amounts not paid within sixty (60) days of
when due shall accrue interest at the lower of 1% per month or the highest
monthly rate allowed by applicable law, from the date due until
paid. The obligation to pay and the payment of any such interest
shall not operate to extend any payment due date, and Primal waives no rights by
accepting late
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payment
with interest. Amounts received from or on behalf of Licensee by
Primal shall first be credited against any unpaid interest, and accrual of such
interest shall be in addition to and without limitation of any and all
additional rights or remedies that Primal may have hereunder or at law or in
equity. The obligation to pay and the payment of any such interest
shall not operate to extend any payment due date, and Primal waives no rights by
accepting (i) late payments with interest or (ii) partial
payments. In addition, incremental License fees are payable when the
cumulative unit count (as set forth in the applicable Schedule) is exceeded, and
shall be due within sixty (60) days of Licensee’s receipt of a valid, undisputed
invoice, which invoice shall set forth the payment terms applicable thereto as
set forth in this Agreement (including the sixty (60) day due
date). Licensee shall provide Licensee with notice of such
incremental license fees as set forth in the applicable
Schedule. Licensee may, after giving Primal prior written notice with
full particulars of the reasons, withhold payment of any disputed amounts under
this Agreement that Licensee disputes in good faith, pending resolution of the
matter subject to the terms of Section 2.4 of this Agreement.
3.2
Licensee
shall provide Primal with limited remote access to the Software during the term
of this Agreement, solely via a remote communications means, and solely during
the hours identified by Licensee solely to enable Primal to perform its
obligations under the Maintenance Program and, further, to verify: (i) the
number of copies of the Software in use, (ii) the computer systems on which such
copies are installed (iii) the number of Subscribers and (ii) the number of call
detail records.
3.3
In
addition to any other amounts due, Licensee shall pay to or reimburse Primal the
amount of any sales, use, excise or other federal, state, local or foreign
taxes, duties, tariffs or other assessments (other than any tax based on
Primal’s net income) and related penalties which Primal is at any time obligated
to pay or collect in connection with or arising out of the transactions
contemplated by this Agreement, provided that any such amounts are itemized on
an invoice provided by Primal to Licensee.
3.4
Except as
provided for in this Agreement, all out-of-pocket expenses incurred in
installation or training (including, without limitation, telephone charges,
travel, shipping and freight charges related to Software and any hardware, etc.)
will be subject to prior written approval by Licensee and, if so approved and
supported by satisfactory documentation, shall be billed to and paid by Licensee
within thirty (30) days of Licensee’s receipt of a valid, undisputed invoice,
which invoice shall set forth the payment terms applicable thereto as set forth
in this Agreement (including the thirty (30) day due date).
3.5
Invoices
under this Agreement may be submitted by facsimile and shall be effective as of
the date of receipt of such facsimile transmission.
3.6
As of the
one (1) year anniversary of the Effective Date, Primal agrees to [***] with
respect to [***] being provided pursuant to this Agreement, and represents that
the [***] of the Agreement shall be [***]. If Primal offers [***] of
this Agreement after such one year anniversary, such [***] to Licensee, and this
Agreement will be deemed [***].
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4.
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OWNERSHIP;
PROPRIETARY RIGHTS; CONFIDENTIAL
INFORMATION
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4.1
As
between the parties, Primal owns all Intellectual Property Rights (defined
herein) in and to the Software (including, without limitation, Error Corrections
and Basic Enhancements (defined in Section 6)) and all proprietary and other
rights therein, subject only to the license rights expressly granted to Licensee
as set forth in this Agreement. Licensee acknowledges that the
Software constitutes a valuable proprietary product of Primal embodying
substantial creative efforts of Primal. Licensee obtains
pursuant to this Agreement only the right to use copies of the Software on the
terms and conditions set forth herein and no right, title or interest in or to
the Software or any copies thereof or any copyrights, trademarks or other
[***]
Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.
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proprietary
rights related to the Software are transferred to Licensee. In
addition, Licensee agrees not to sell, transfer, publish, disclose, display or
distribute the Software except as expressly and specifically authorized by this
Agreement (collectively “Unauthorized Use or Disclosure”). “Intellectual Property
Rights” mean any and all (by whatever name or term known or designated)
tangible and intangible and now known or hereafter existing (a) rights
associated with works of authorship throughout the universe, including, without
limitation, all exclusive exploitation rights, copyrights, neighboring rights,
moral rights, and mask-works, (b) trademark, trade dress, and trade name rights
and similar rights, (c) trade secret rights, (d) patents, designs, algorithms
and other industrial property rights, (e) all other intellectual and industrial
property and proprietary rights (of every kind and nature throughout the
universe and however designated), whether arising by operation of law, contract,
license, or otherwise, and (f) all registrations, applications, renewals,
extensions, continuations, divisions, or reissues thereof now or hereafter in
force throughout the universe.
4.2
Licensee
agrees that it will not, at any time during the Term, (i) infringe any
Intellectual Property Right of Primal in the Software, or (ii) exercise any
Intellectual Property Right in the Software other than as expressly set forth
herein and in any other written agreement that may be entered into between the
parties.
4.3
All
Confidential Information (as defined below) received by either party (“Receiving
Party”) from the other party (“Disclosing Party”) in connection with any
activity under or relating to this Agreement (including before the Effective
Date) will be held as strictly confidential by the Receiving Party, and the
Receiving Party shall not disclose such information to third parties except as
expressly permitted in this Agreement or as otherwise agreed in writing by the
Disclosing Party. “Confidential Information” is described generally
as including, without limitation, technical, customer, product, service, and/or
business information or concepts in written, graphic, oral, or other tangible or
intangible forms including, without limitation, specifications, product
features, data, source code, drawings, schematics, know-how, notes, models,
reports, research, contracts, mock-ups, release schedules, and samples, which
the Receiving Party knows or should know is confidential, whether in written,
oral, electronic, website-based, or other form, and whether provided by a party
or one if its representatives, and all copies, summaries, and extracts of any of
the foregoing. Without limitation of the above, Licensee’s
Confidential Information shall include the locations at which Licensee plans to
roll out new products and services, any projections associated with any such
roll-outs, call detail records, personal data, contact information, usage and
message data of Licensee or its Affiliates or of any customer or Subscriber or
prospective customer or Subscriber, and third party products, services and
vendors used by Licensee and the nature of Licensee’s use
thereof. For purposes of clarity, the Confidential Information of or
belonging to a Disclosing Party shall include the Confidential Information of
such Disclosing Party’s Affiliates, licensors, service providers, and business
partners that is disclosed to the Receiving Party by the Disclosing Party or its
employees, agents or contractors. As between the Disclosing Party and
the Receiving Party, Confidential Information is and shall remain the sole
property of the Disclosing Party.
4.4
The
Receiving Party shall only use the Confidential Information of the Disclosing
Party as absolutely necessary to perform its obligations or exercise its rights
under this Agreement, and shall disclose such Confidential Information only to
its employees, agents and contractors essential to the performance of its
responsibilities, or exercise of its rights, in any event subject to such
employees, agents and contractors being bound to confidentiality obligations at
least as restrictive as those contained herein. In protecting the
Confidential Information of the Disclosing Party, the Receiving Party shall use
at least the same degree of care that it uses to protect its own confidential
information, but no less than a reasonable degree of care. The
Receiving Party shall not remove, alter, cover, obscure, or obfuscate any
copyright notice, trademark notice or symbol, service ▇▇▇▇ notice or symbol, or
other proprietary rights notice or legends in or on the Disclosing Party’s
Confidential Information. Upon the written request of the Disclosing
Party, any and all Confidential Information (and all copies, extracts, and
summaries thereof) will be either (i) promptly returned to the Disclosing Party,
or (ii) promptly destroyed by the Receiving Party (with a certification of
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7
destruction
transmitted to the Disclosing Party) at the Receiving Party’s expense. For the
avoidance of doubt, the immediately preceding sentence of this Section 4.4 shall
not apply to the Software.
4.5
The terms
and conditions set forth in Section 4.1 though 4.4 shall not apply to any
Confidential Information: (i) after it has become generally available to the
public without breach of this Agreement by the
Receiving
Party (or its consultants, independent contractors, or subcontractors) and
without breach of any third party’s confidentiality obligations; or (ii) is
required to be disclosed under operation of law or administrative process
(provided that the Receiving Party gives the Disclosing Party sufficient advance
notice of such requirement to disclose and the Receiving Party cooperates with
the Disclosing Party in trying to seek a protective order in connection
therewith).
4.6
ALL
CONFIDENTIAL INFORMATION IS PROVIDED ON AN “AS-IS” BASIS. Neither
party makes any representation or warranty as to the accuracy or completeness of
the Confidential Information or any component thereof. No license of
any Intellectual Property Rights of either party is granted by any disclosure of
Confidential Information. The terms of this Agreement are deemed
Confidential Information; provided, however, that either party may disclose the
terms of this Agreement: (i) to its accountants, financial and legal advisors,
and prospective investors and purchasers in or of its business who are subject
to confidentiality obligations with respect thereto, and (ii) in a filing to the
United States Securities Exchange Commission as required by applicable law,
provided that the economics of this Agreement are not publicly
disclosed. For the avoidance of doubt, this Section 4.6 shall not
apply to the Software.
4.7
Primal
retains any and all right, title, and interest in and to all of its Intellectual
Property Rights of any nature licensed to Licensee for use
hereunder. The goodwill and any other rights and interests that may
accrue due to any use or exploitation of any item that is the subject of a
Primal Intellectual Property Right (including, without limitation, the Software)
shall inure solely to the benefit of Primal. Licensee agrees to
faithfully reproduce and not to remove, alter, cover, obscure, or obfuscate any
copyright notice, trademark notice or symbol, service ▇▇▇▇ notice or symbol, or
other proprietary rights notice or legends placed by Primal in or on the
Software (or contained on or incorporated in any Confidential Information) or
any portion thereof, and shall ensure that all such notices are reproduced on
all copies of the Software or any portion thereof made by Licensee, provided
that Licensee shall have sole discretion over what branding, if any, will appear
on the Subscriber Site. Licensee shall comply with reasonable directions given
by Primal from time to time regarding the form and placement of copyright
notices and other proprietary rights notices on the Software or any portion
thereof.
4.8
Licensee
shall promptly notify Primal of any known Unauthorized Use or Disclosure of the
Software by any third party and will cooperate with reasonable requests of
Primal, to the extent reasonably necessary for Primal to pursue such actions, in
any litigation brought by Primal against third parties to protect its
Intellectual Property Rights and other proprietary rights, provided that Primal
shall reimburse Licensee for all expenses (including without limitation legal
costs) incurred by Licensee at Primal’s direction arising out of such
cooperation. Licensee’s compliance with the provisions of this
Section shall not be construed as a waiver of any of Primal’s rights
hereunder.
4.9
Because
of the unique and proprietary nature of the Software and the Confidential
Information, it is understood and agreed that each party’s remedies at law for a
breach by the other party of its obligations under this Section 4 will be
inadequate and that such party shall, in the event of any such breach, be
entitled to seek equitable relief (including, without limitation, injunctive
relief), without any requirement to post a bond as a condition of such relief,
in addition to, and not in lieu of, all other remedies provided under this
Agreement or available to such party at law.
4.10
In the
event that Licensee learns of any actual or imminently threatened infringement
of any of Primal’s Intellectual Property Rights in the Software, Licensee shall
promptly notify Primal. Primal may, in its sole discretion, bring an
infringement action. In the event that Primal initiates an
infringement action hereunder, Primal shall bear all expenses incurred in the
prosecution of, and shall keep all recoveries from,
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PRIMAL
MASTER
SOFTWARE LICENSE AGREEMENT (Monthly)
such
action, except that Licensee may elect to participate in the recovery by
contributing to the costs of such action; provided, however, that Licensee’s
election to participate and contribute shall be subject to Primal’s written
approval in its sole discretion. The proceeds of any recovery shall
be divided pro rata according to the contributions of the parties, except that
neither party shall receive amounts in excess of its contribution until both
parties have recovered their actual contributions. Notwithstanding
the foregoing, no election will be deemed effective as to any judgment entered
or settlement agreement executed within 45 days after the election is
communicated to the Primal, except to the extent of reimbursing the Licensee’s
actual contribution. As used herein, “contribution” only includes
amounts paid to third parties, but does not include internal costs of the
parties.
|
5.
|
LIMITED
WARRANTIES AND DISCLAIMERS
|
5.1
Primal
represents and warrants that: (a) it has the full corporate right, power, and
authority to enter into this Agreement, to grant the licenses granted hereunder,
and to perform the acts required of it hereunder, and that the execution and
delivery of this Agreement by Primal, and the performance by Primal of its
obligations hereunder, does not and shall not violate any agreement to which it
is a party or by which it is or will be otherwise bound, (b) all Programs shall
be free from defects in materials or workmanship, and shall conform to the
Documentation applicable thereto, (c) the services provided by Primal under this
Agreement will be performed in a competent, professional and workmanlike manner
using fully qualified personnel, consistent with the highest industry standards,
(d) the Programs, upon delivery to Licensee, shall be free of viruses, worms,
time bombs, logic bombs, Trojan horses, or similar malicious instructions,
techniques, or devices capable of disrupting, erasing, disabling, damaging, or
shutting down a computer system or software or hardware component thereof, (e)
the Programs do not and will not contain any computer code that would
automatically disable the Programs or Licensee’s hardware, software or systems,
or impair, or enable Primal to impair, in any way the operation thereof based on
the elapsing of a period of time, exceeding an authorized number of copies or
users, advancements to a particular date or other numeral, or other similar
self-destruct mechanisms (sometimes referred to as “time bombs”, “time locks”,
“locking devices” or “drop dead devices”) or that would permit Primal to access
the Programs to cause such disablement or impairment (sometimes referred to as a
“trap door” or “back door” device), (f) neither the Software as installed in the
Environment, nor the use thereof, infringes, misappropriates or violates or
shall infringe, misappropriate or violate, any third party Intellectual Property
Right, and there is currently no actual or threatened suit by any third party
based on an alleged violation of any such right, (g) the Programs, as installed
in the Environment are scalable to, and will operate in accordance with their
Documentation to the levels set forth in the applicable Schedules (h) the
Software will be capable of operating fully and correctly with the Third Party
Products and Services, and, to the extent within Primal’s reasonable control,
the Software will be capable of enabling the Software to meaningfully confirm
vendor and Subscriber billing, and (i) the installation and use of the Software
in the Environment shall not void any warranties pertaining to any Third Party
Products or Services.
5.2
TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SET FORTH IN
THIS AGREEMENT, PRIMAL DOES NOT MAKE AND SPECIFICALLY DISCLAIMS, ALL OTHER
EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO THE SOFTWARE AND/OR USE
OF THE SOFTWARE (INCLUDING, WITHOUT LIMITATION, ACTUAL AND IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE), AS WELL AS ANY WARRANTIES
THAT THE SOFTWARE (OR ANY ELEMENTS THEREOF) WILL ACHIEVE A PARTICULAR RESULT, OR
WILL BE UNINTERRUPTED OR ERROR-FREE.
5.3
Licensee
represents and warrants the following: Licensee has the full
corporate right, power, and authority to enter into this Agreement and to
perform the acts required of it hereunder. The execution and delivery
of this Agreement by Licensee, and the performance by Licensee of its
obligations hereunder, does not and shall not violate any agreement to which
Licensee is a party or by which it is or will be otherwise bound.
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9
PRIMAL
MASTER
SOFTWARE LICENSE AGREEMENT (Monthly)
|
6.
|
MAINTENANCE
|
6.1
During the Term, Primal shall provide maintenance for the Software in accordance
with this Section 6 (the “Maintenance Program”) subject to Licensee’s
fulfillment of its obligations under this Agreement (including, without
limitation, Licensee’s obligations set forth in this Section 6).
6.2
The Maintenance Program shall consist of the following:
6.2.1
Primal shall provide to Licensee telephone and electronic consultation for the
Software during the Standard Support Hours set forth on Schedule 4, excluding
regularly scheduled holidays (New Years Day, Memorial day, Independence Day,
Labor Day, Thanksgiving, Day After Thanksgiving, Christmas Eve, Christmas) of
Primal (the “Normal Support Hours”), and, in addition, at any time outside of
Normal Support Hours at the rates set forth in Section 14.2. Such
consultation shall include problem diagnosis, troubleshooting and identification
of Errors (defined herein).
“Errors”
means any failure of the Software, as installed in the Environment to
substantially conform to its Documentation.
6.2.2
Attached to this Agreement as Schedule 4 - PRIMAL Maintenance and Support
Program are the procedures and forms that Licensee shall use to contact Primal
to report an Error. Primal shall provide to Licensee a list of
persons (in increasing positions of authority) and their telephone numbers
(“Calling List”) for Licensee to contact in order to report an
Error. Licensee shall notify Primal by such means of any Error,
specifying in sufficient detail the nature of the Software’s non-conformity with
the applicable Documentation and the circumstances in which the Error
arose. Installation and incorporation of any Error Correction
subsequent to Designated Location Software Acceptance pursuant to Section 1.6 is
the sole responsibility of Licensee.
“Error
Correction” shall mean a software modification or addition, or other problem
resolution, that, when made or added to the Software or otherwise implemented,
establishes material conformity to the Documentation.
6.2.3
Primal shall support and maintain the Programs such that they are competitive
and up-to-date with current technology and within Primal’s product life cycle,
including any Upgrades of the Third Party Products and
Services. Primal may from time-to-time in its sole discretion,
release Point (defined herein) or Major (defined herein) Releases (referred to
together as “Releases”) to its customers. Primal shall: (i) provide
Licensee with notice concerning the release and content of such Releases; and
(ii) provide Licensee with access to such Releases via FTP (File Transfer
Protocol) or internet download. Subsequent to Designated Location
Software Acceptance pursuant to Section 1.6, it is the responsibility of
Licensee to install each new Point or Major Release of the Software as Primal
makes such Releases available. Primal will continue to support prior
Releases for eighteen (18) months from the date of the end-of-life notice for
such prior Release. If Licensee fails to install the current Release,
and Primal ceases support of the prior Release, Primal will not be held
responsible to Licensee for maintenance of such non-supported Software, or,
Licensee shall pay an additional twenty-five percent (25%) of Primal’s then
current standard Maintenance fees in order to receive such
maintenance.
“Point
Release” shall mean non-integer releases that provide changes or additions to
the Software, other than Custom Software, which are functional improvements to
the Software (“Basic Enhancements”) or Error Corrections. These
releases will be made available to Licensee at no additional cost as long as
this Agreement is in effect.
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PRIMAL
MASTER
SOFTWARE LICENSE AGREEMENT (Monthly)
“Major
Release” shall mean integer releases, such as from release 1.0 to 2.0, which
Primal from time-to-time may offer to its customers at an additional
charge. Provided Licensee is current with all applicable fees, Primal
shall provide Licensee, at no charge, all subsequent Major
Releases.
Primal
represents and warrants that Releases will be cross-compatible with prior
versions of the Programs and that the installation of Releases shall not give
rise to any additional costs and shall not adversely affect the Program’s
performance as warranted. The warranty set forth in this paragraph is limited to
the internal processes of the Programs and does not apply to the Programs’
performance insofar as they are affected by external interfaces and or changes
to Third Party Products and Services.
In any
event that any Third Party Products and Services are no longer available or
supported, Primal shall use commercially reasonable efforts to identify
alternative Third Party Products and Services that are compatible and
interoperable with the Programs and that can be procured by Licensee at a
reasonable cost.
6.2.4
Primal shall make available the training in the Software set forth in the
applicable Schedule. Such training shall be conducted at the dates
and times designated by Licensee and agreed to by Primal, at the rates set forth
on the applicable Schedule. For purposes of clarity, Primal’s
training does not relieve Licensee of responsibility to train its personnel on
the features and functionality of the Software.
6.2
Subject to Sections 1.4, 1.5, 1.7, 1.10, 5 and this Section 6, Primal does not
provide support or maintenance for Third Party Products and
Services.
6.3
To the extent that Primal provides Licensee with any Error Corrections and/or
Basic Enhancements, Licensee shall (i) (if subsequent to Designated Location
Software Acceptance pursuant to Section 1.6) install the Error Corrections
and/or Basic Enhancements in the form provided by Primal; and
(ii) use such Error Corrections and/or Basic Enhancements only in
connection with the Software and in a manner consistent with the requirements of
the Software. The Error Corrections and/or Basic Enhancements
shall be considered part of the Software and are and shall remain the sole
property of Primal, unless otherwise agreed by the parties in a Schedule,
regardless of whether Licensee, its employees, contractors, or subcontractors
may have contributed to the conception of such work, joined in the effort of its
development, or paid Primal for the use of the work product.
|
7.
|
MODIFICATION
OF SOFTWARE
|
Any
modifications or revisions to the Software, including development of custom
software (“Custom Software”), performed by Primal shall be subject to the terms
and conditions specified in this Agreement and the Professional Services section
of the applicable Schedule. To the extent any modifications or revisions to the
Software, including development of Custom Software, is requested by Licensee
after the Effective Date, a separate Schedule, Amendment to this Agreement or
Custom Software Agreement shall be executed by the Parties. For
purposes of clarity, and subject to Section 15, Licensee shall not, and shall
have no right to, modify, revise, or otherwise create derivative works from the
Software.
|
8.
|
LIMITATION
OF LIABILITY
|
8.1
EXCEPT WITH RESPECT TO THE INDEMNITY OBLIGATIONS OF THE PARTIES WHICH MAY ARISE
UNDER SECTION 10 OR ATTACHMENT A, A BREACH BY EITHER PARTY OF ITS
CONFIDENTIALITY OBLIGATIONS IN SECTION 4, PROPERTY DAMAGE OR PERSONAL INJURY, OR
DAMAGES ARISING OUT OF THE WILLFUL, MALICIOUS, OR GROSSLY NEGLIGENT CONDUCT, IN
NO EVENT SHALL EITHER PARTY BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, OR
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PRIMAL
MASTER
SOFTWARE LICENSE AGREEMENT (Monthly)
CONSEQUENTIAL
DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE,
AND ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM
NEGLIGENCE OR STRICT LIABILITY EVEN IF SUCH PARTY OR ANY OTHER PERSON HAS BEEN
ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH
DAMAGES. EXCEPT WITH RESPECT TO THE INDEMNITY OBLIGATIONS OF THE
PARTIES WHICH MAY ARISE UNDER SECTION 10 OR ATTACHMENT A, A BREACH BY EITHER
PARTY OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 4, PROPERTY DAMAGE OR
PERSONAL INJURY, OR DAMAGES ARISING OUT OF THE WILLFUL, MALICIOUS, OR GROSSLY
NEGLIGENT CONDUCT, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, AND WITHOUT LIMITING ANY OTHER RIGHTS, REMEDIES, LIMITATIONS, OR
RESTRICTIONS IN THIS AGREEMENT OR UNDER LAW: (A) PRIMAL WILL NOT BE LIABLE WITH
RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE,
STRICT LIABILITY, OR OTHER THEORY, AT LAW OR IN EQUITY, FOR ANY AMOUNTS
AGGREGATING IN EXCESS OF AMOUNTS PAID TO IT UNDER THIS AGREEMENT IN THE TWELVE
(12) MONTH PERIOD BEFORE THE CAUSE OF ACTION AROSE, AND (B) LICENSEE WILL NOT BE
LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY, AT LAW OR IN EQUITY, FOR ANY
AMOUNTS AGGREGATING IN EXCESS OF THE FEES DUE TO PRIMAL UNDER THIS
AGREEMENT. TO THE EXTENT PRIMAL IS LIABLE FOR ANY PROPERTY DAMAGE OR
PERSONAL INJURY, PRIMAL WILL NOT BE LIABLE WITH RESPECT TO ANY SUCH DAMAGES FOR
ANY AMOUNT’S AGGREGATION IN EXCESS OF THE LIMITS OF INSURANCE AS SET FORTH IN
ATTACHMENT A.
8.2
Licensee
acknowledges and agrees that Primal has no control over the nature of Licensee’s
business activities, its network switch(es), its other support systems, or over
the quality of telecommunications lines or the content of the data transmitted,
or any corruption, loss or damage to such data not caused by the
Software.
8.3
The
parties acknowledge and agree that the parties have agreed to the prices and
entered into this Agreement in reliance upon, among other things, the
limitations of liability and disclaimers contained herein, and such provisions,
along with the allocation of risk between the parties contained in this
Agreement, form an essential basis of the bargain between the
parties.
|
9.
|
SECURITY
PRECAUTIONS
|
To
prevent loss or damage to data as a result of malfunctions, errors or defects of
or in the Software, Licensee will, at its discretion, regularly maintain and
verify integrity of back-up copies (“Back-ups”) of all data and programs used in
connection with the Software. Primal shall not be held responsible for any loss
or damage caused by Licensee’s failure to maintain and verify proper daily and
other Back-ups.
|
10.
|
INDEMNITY
|
10.1 The
parties agree, at their sole expense, to defend, indemnify, and hold harmless
each other and their Affiliates and each of their respective present and future
partners, principals, members, shareholders, directors, officers, successors,
assigns, employees, contractors and agents (collectively, the “Indemnified
Parties”) from any and all damages, liability, penalties, loss, costs and
expense (including, without limitation, reasonable attorneys’ and experts’ fees)
arising from or relating to any third party claim, action, or demand (a “Claim”)
related to (a) the defaulting party’s breach of its representations or
warranties under this Agreement or (b) the defaulting party’s negligence or
willful misconduct in the performance or nonperformance of any of this
Agreement.
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PRIMAL
MASTER
SOFTWARE LICENSE AGREEMENT (Monthly)
10.2
Licensee
agrees to defend, indemnify, and hold harmless Primal and its Affiliates and
each of their respective shareholders, directors, officers, successors, and
assigns from any and all loss, cost, liability, and expense (including
reasonable attorneys’ and experts’ fees) arising from or relating to any third
party Claim arising from (a) Licensee’s fraud or misrepresentation to a
Subscriber relating to the Programs, except if such fraud or misrepresentation
arises from Primal’s or its employee’s, agent’s or contractor’s negligence,
gross negligence willful misconduct or breach of this Agreement; (b) any
violation of or failure to comply with all applicable laws, rules, and
regulations that relate to the collection and use of personally identifiable
information, privacy matters, and marketing to children under thirteen (13)
years of age; and/or (c) Claims by Subscribers relating to the performance or
nonperformance by Licensee of any Subscriber agreement.
10.3
Primal
agrees, at its sole expense, to defend, indemnify, and hold harmless Licensee
and its Indemnified Parties from any and all damages, liability, penalties,
loss, costs and expense (including, without limitation, reasonable attorneys’
and experts’ fees) arising from or relating to any third party Claim related to
the failure of Primal to comply with applicable laws, rules or
regulations.
10.4
Primal
will indemnify and hold Licensee and its Indemnified Parties harmless, and at
its own expense defend or settle any third party Claim that the Software or any
portion thereof, as installed in the Environment, or the use thereof, infringes,
misappropriates or constitutes wrongful use of an Intellectual Property Right of
any third party (a “Legally Protected Proprietary Right” or
“LPPR”). Licensee shall notify Primal in writing of any such claim
promptly after Licensee first learns of it, and shall provide Primal with such
cooperation and assistance, at Primal’s expense, as Primal may reasonably
request from time to time in connection with the defense thereof. Primal shall
pay all damages and costs awarded against Licensee (or payable by Licensee
pursuant to a settlement agreement) in connection with such suit or
proceeding. In the event that the use of the Software or any portion
thereof as permitted hereunder is held to infringe or constitute wrongful use of
any LPPR or Licensee’s right to use such Software is enjoined by a court of
competent jurisdiction, or if Primal, in the reasonable exercise of its
discretion, instructs Licensee to cease using any such Software in order to
mitigate or lessen potential damages arising from a claimed infringement or
wrongful use of any LPPR, Licensee shall cease using such
Software. In the event Licensee ceases to use any such Software as
provided in this Section, Primal shall promptly, in its sole discretion and
expense (i) replace such Software with equally suitable non-infringing software
that performs substantially the same functionality and contains substantially
the same features as the Software, (ii) modify such Software so that the use of
the Software by Licensee as permitted hereunder ceases to be infringing or
wrongful and so that it retains substantially the same functionality and
features, or (iii) procure for Licensee the right to continue using such
unmodified Software as permitted hereunder. If, after Primal has used
commercially reasonable efforts, Primal is unable at a commercially reasonable
cost to achieve any of (i), (ii) or (iii) above, Licensee will use commercially
reasonable efforts to seek a third party product to substitute for the allegedly
infringing Software. In the event that none of the forgoing options
are available within thirty (30) days of the date that Licensee is no longer
allowed to use the Software due to an injunction, license termination or
otherwise (the “Injunction Date”), Primal shall accept the return of the
Software and: (1) refund to Licensee all license fees for the actual Software
identified in such an injunction, as well as any other Software rendered
useless, inapplicable to inappropriate to License as a result of such
injunction, paid by Licensee to Primal during the twelve (12) months prior to
the Injunction Date , and (2) if the Injunction Date is less than two (2) years
after the Effective Date, refund to Licensee all professional services fees for
the actual Software identified in such an injunction, as well as any other
Software rendered useless, inapplicable to inappropriate to License as a result
of such injunction, paid under this Agreement. OTHER THAN AS EXPRESSLY STATED IN
THIS SECTION 10.4, PRIMAL SHALL HAVE NO LIABILITY WHATSOEVER TO LICENSEE FOR ANY
LOSS OR DAMAGE (INCLUDING, WITHOUT LIMITATION, FOR ANY CONSEQUENTIAL,
INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES) ARISING OUT OF ANY ALLEGATION OR
DETERMINATION THAT LICENSEE’S USE OF THE SOFTWARE AS PERMITTED HEREUNDER
INFRINGES OR CONSTITUTES WRONGFUL USE OF ANY LPPR.
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PRIMAL
MASTER
SOFTWARE LICENSE AGREEMENT (Monthly)
10.5
In
connection with any Claim, the party seeking indemnification (a) will give the
indemnifying party prompt written notice of the Claim, (b) will reasonably
cooperate with the indemnifying party (at the indemnifying party’s expense) in
connection with the defense and settlement of the Claim, and (c) will permit the
indemnifying party to control the defense and settlement of the Claim
(including, without limitation, choice of counsel); provided, however, that the
indemnifying party may not offer a proposed settlement of any Claim or settle
any Claim without the indemnified party’s prior written consent (which will
not be
unreasonably withheld). Further, the indemnified party (at its cost)
may participate in the defense and settlement of the Claim. Each
party shall bear all expenses incurred in the prosecution of, and shall keep all
recoveries from, any Claims hereunder, except that the indemnified party may
elect to participate in the recovery by contributing to the costs of such
Claim. The proceeds of any recovery shall be divided pro rata
according to the contributions of the parties, except that neither party shall
receive amounts in excess of its contribution until both parties have recovered
their actual contributions. As used herein, “contribution” only
includes amounts paid to third parties, but does not include internal costs of
the parties.
|
11.
|
ASSIGNMENT
|
Neither
party may assign or transfer this Agreement or any interest herein (including
rights and duties of performance), by operation of law or otherwise, without the
prior written consent of the other party, except that, in any event, either
party shall have the right to assign this Agreement to any of its Affiliates or
in connection with a merger, acquisition or sale of its business relating to the
Software.
|
12.
|
NOTICES
|
Except as
expressly set forth herein to the contrary, any consents, requests, demands,
communications, and other notices permitted or required to be given hereunder
shall be in writing and be deemed validly given (a) upon delivery, if personally
delivered with services fees prepaid, (b) upon delivery, if delivered, with fees
prepaid, by reputable overnight courier that provides proof of delivery, or (c)
three (3) business days following deposit in the United States mail, first
class, postage prepaid, certified or registered, and return receipt
requested. The foregoing shall be the only permitted mechanism for
delivery of such communications, and the addresses set forth below shall be the
proper addresses for notices provided hereunder. Either party may
change its address (to another U.S. address) for purposes of receiving notices
hereunder by complying with this Section 12. English shall be the
official language of this Agreement and all communications and notices must be
in the English language.
If to
Licensee:
Time
Warner Cable Information Services (Maine), LLC
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
attn:
[ ]
With a
copy to:
Time
Warner Cable Information Services (Maine), LLC
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
attn: General
Counsel
If to
Primal:
Primal
Solutions, Inc.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
attn:
CEO
|
13.
|
EXCUSED
PERFORMANCES; FORCE MAJEURE
|
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14
PRIMAL
MASTER
SOFTWARE LICENSE AGREEMENT (Monthly)
Neither
party shall be deemed to be in default of or to have breached any provision of
this Agreement as a result of any delay, failure in performance or interruption
of service, resulting from acts of God, acts of civil or military authorities,
civil disturbances, wars, strikes or other labor disputes, shortages of labor or
materials, fires, transportation contingencies, laws, regulations, acts or
orders of any government or agency or official thereof, other catastrophes, or
any other similar occurrences beyond such party’s reasonable
control.
|
14.
|
ADDITIONAL
SERVICES
|
14.1
Licensee
may request professional services from Primal in addition to the professional
services included in the Schedules, at any time during the term of this
Agreement. If Licensee requests such additional professional
services, unless otherwise set forth in the applicable Schedule or unless
otherwise agreed upon in writing by the parties, Primal shall provide such
additional services at the following rates:
| Services | Daily Price | |||
| Business Consulting |
$[***]
+ expenses(if applicable)
|
|||
| Training |
$[***]
+ expenses(if applicable)
|
|||
| Technical Support |
$[***]
+ expenses(if applicable)
|
|||
| Custom Programming | ||||
| Programmer |
$[***]
+ expenses(if applicable)
|
14.2 Licensee
may request maintenance services from Primal outside of Normal Support Hours
pursuant to Section 6.2.1 at the rate of $[***] per hour.
14.3
Pricing
in this Section shall remain in effect for 12 months from the date of Hosted
Software Acceptance, and thereafter, Primal may adjust the prices no more than
one (1) time annually upon sixty (60) days written notification to Licensee,
provided however that any increase to the prices shall not exceed the lesser of:
(a) the [***]; or (b) [***] percent ([***]%).
|
15.
|
SOURCE
CODE ESCROW
|
15.1
Source
Code Escrow. No later than the time of Primal’s delivery of a Program
to Licensee or thirty (30) days after the Effective Date, whichever is sooner:
(i) Primal shall have entered into an agreement (a “Source Code Escrow
Agreement”) with an independent third party (an “Escrow Agent”) under which
Primal is obligated to deposit a fully commented and documented copy of the
source code form of the Program, a listing thereof and all relevant commentary,
including explanation, flow charts, algorithms and subroutine descriptions,
memory and overlay maps and other documentation of the source code
(“Commentary”, together with the source code and listing, the “Deposit”), and to
continuously update such Deposit with a fully commented and documented copy of
the source code form of all Error Corrections, Basic Enhancements and Releases
(“collectively, “Updates”), a listing thereof and all relevant Commentary, as
such Updates are released, (ii) Primal shall have made the Deposit, and (iii)
Primal shall have facilitated and cooperated with the process of making Licensee
a beneficiary under the Source Code Escrow Agreement such that the Escrow Agent
will be obligated to notify Licensee in the event that Primal has not
[***]
Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.
1 -
15
PRIMAL
MASTER
SOFTWARE LICENSE AGREEMENT (Monthly)
updated
its Deposit upon its release of an Update, and such that the Escrow Agent will
be obligated to release the Deposit to Licensee in the event of certain
conditions that will be set forth in the Source Code Escrow
Agreement. Primal hereby grants Licensee a license to use, copy, make
derivative works from and otherwise modify the Deposit to support and maintain
the Program upon release of the Deposit to Licensee pursuant to the Source Code
Escrow Agreement. Licensee shall pay the Escrow Agent all fees
charged by the Escrow Agent for the rights afforded to Licensee pursuant to this
Section 15. In addition, Licensee agrees to pay a one-time set up fee
to Primal in the amount of $[***] for initiating the services under the Source
Code Escrow Agreement, and an annual fee of $[***] for providing the services
pursuant to this Section 15. The one time set up fee shall be due
upon the Hosted Software Acceptance Date and Annual Source Code Escrow Services
Fee shall be due on each subsequent anniversary of the Hosted Software
Acceptance Date. Licensee shall directly pay all fees to the Escrow
Agent or shall reimburse Primal all costs and fees of the Escrow
Agent. Except for any fees or costs
required by the Escrow Agent pursuant to the Escrow Agreement,
Licensee shall be responsible for no other fees or payments arising from this
Section 15.1. For the avoidance of doubt, the Source Code Escrow
Agreement is supplementary to this Agreement.
|
16.
|
MISCELLANEOUS
PROVISIONS
|
16.1
Except as
otherwise provided herein, no remedy made available to either party hereto by
any of the provisions of this Agreement is intended to be exclusive of any other
remedy, and each and every remedy shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise.
16.2
No waiver
of any provision of this Agreement or any rights or obligations of either party
hereunder shall be effective, except pursuant to a written instrument signed by
the party or parties waiving compliance, and any such waiver shall be effective
only in the specific instance and for the specific purpose stated in such
writing.
16.3
This
Agreement shall be deemed entered into in the State of
California. This Agreement and the rights and obligations of the
parties hereunder shall be governed by, and construed in accordance with, the
laws of the State of California without regard to conflicts of laws
principles. In addition, this Agreement will not be governed or
interpreted in any way by referring to any law based on the Uniform Computer
Information Transactions Act (UCITA), even if that law has been adopted in
California, and the United Nations Convention on Contracts for the International
Sale of Goods is hereby excluded. Each party to this Agreement
irrevocably (a) submits to the exclusive jurisdiction of any state or federal
court located in Orange County, California in litigating any action or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby, and (b) agrees that any such action or proceeding may be
litigated only in such courts. Each party to this Agreement waives, to the
fullest extent permitted by law, the defenses of lack of personal jurisdiction,
inconvenient forum, and improper venue to the maintenance of any such action or
proceeding. Each party hereby authorizes and accepts service of process
sufficient for personal jurisdiction in any action against it as is contemplated
by this Section by certified or registered mail, return receipt requested, to
its address for the giving of notices as set forth in this Agreement. Any
final judgment rendered against a party in any such action or proceeding shall
be conclusive as to the subject of such final judgment and may be enforced in
other jurisdictions in any manner provided by law. The Agreement
shall be interpreted in accordance with its fair meaning and not in favor or
against either party. The operative Agreement shall be the original English
language Agreement executed by the parties, and notwithstanding any translation
that may be made by Licensee or Primal. In the event of a conflict
between the translation and the English language version, the English language
version shall take precedence over the translation and the terms and conditions
shall be construed in accordance with the English language
Agreement.
16.4
This
Agreement may be executed in one or more counterparts, each of which shall be an
original and all of which together shall constitute one and the same
instrument.
[***]
Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.
1 -
16
PRIMAL
MASTER
SOFTWARE LICENSE AGREEMENT (Monthly)
16.5
This
Agreement shall inure to the benefit of and shall be binding upon the parties
hereto and their respective permitted successors and assigns. There
are no third party beneficiaries to this Agreement.
16.6
Sections,
2.6, 3.1, 4.1, 4.3, 4.4, 4.5, 8, 10, 15 and 16 shall survive assignment,
expiration or termination of this Agreement for any reason.
16.7
The
provisions of this Agreement are severable. In the event that any
provision hereof is found invalid or unenforceable pursuant to judicial decree
or decision, the remainder of this Agreement shall remain valid and enforceable
according to its terms.
16.8
Both
parties are acting as independent contractors with respect to the activities
hereunder. Nothing in this Agreement shall be deemed to create any
type of agency, joint venture, or partnership relationship between the
parties. Neither party shall have any right or authority to bind or
obligate the other in any manner to any third party.
16.9
This
Agreement (including the Schedules) constitutes the entire understanding and
agreement between Primal and Licensee with respect to the transactions
contemplated herein and supersedes any and all prior or contemporaneous oral or
written communications with respect to the subject matter hereof. It
is expressly understood and agreed that, there being no expectation to the
contrary between the parties hereto, no usage of trade or other regular practice
or method of dealing between the parties hereto shall be used to modify,
interpret, supplement or alter in any manner the express terms of this Agreement
or any part hereof. It is expressly agreed and understood that this Agreement is
the product of negotiations among the parties and that this Agreement was
mutually drafted by the parties. This Agreement shall not be modified, amended
or in any way altered except by an instrument in writing signed by duly
authorized representatives of the parties.
16.10 Licensee
agrees to comply with United States export regulations. Diversion of the
Licensed Program(s) contrary to United States law is prohibited.
16.11
In
addition to, and not in lieu of Primal’s rights under Section 3.2, Primal shall
have the right upon reasonable notice, at its expense, to direct an independent
accounting firm to conduct, during normal business hours on Licensee’s premises
under Licensee’s supervision and without unreasonable disturbance to Licensee’s
business, an audit of the appropriate records of Licensee to verify (i) the
number of copies of the Software in use, (ii) the computer systems on which such
copies are installed (iii) the number of Subscribers and (iv) the number of call
detail records.
16.12
Licensee
Policies. Primal and its employees, agents and contractors shall,
whenever on Licensee’s premises, or remotely accessing Licensee’s computer or
telecommunications networks, comply with Licensee’s business practices, hours,
working conditions, job site policies and any other policies, procedures, rules
and regulations of Licensee, including security, safety and fire prevention
rules, network and equipment use policies, and all reasonable instructions and
directions issued by Licensee.
16.13
Publicity. In
the event that Primal desires to issue a press release referencing this
Agreement, Primal shall make such request to Licensee and Licensee will consider
such request in a timely manner. Without Licensee’s express written
consent in each instance, which consent shall be given only in Licensee’s sole
discretion, Licensee shall not, in connection with any marketing, advertising,
press release or other publicity or broadly distributed document use any name,
trademark, service ▇▇▇▇, trade name, logo or other identifier of Licensee or any
of its Affiliates. Without limitation of the foregoing, the content
and timing of any press release shall be subject to Licensee’s prior written
approval. Licensee shall have sole discretion over any branding on
the Subscriber Site.
16.14
Affiliates. For
purposes of this Agreement, Licensee’s “Affiliates” shall mean any entity
controlled by, under common control with, or controlling Licensee, and
Advance/▇▇▇▇▇▇▇▇, and Primal’s “Affiliates” shall mean any entity controlled by,
under common control with, or controlling Primal. Licensee’s
Affiliates
1 -
17
PRIMAL
MASTER
SOFTWARE LICENSE AGREEMENT (Monthly)
shall
have the right to purchase Software, pursuant to a Schedule under this
Agreement, under the same terms and conditions as does Licensee.
16.15
Non-Exclusive. Nothing
in the Agreement shall limit or restrict Licensee’s right to do business with,
grant rights to or receive grants of rights from, provide services to or receive
services from, or enter into any agreements with any other entity, in any scope
and manner that Licensee desires. For clarification, Licensee
shall have the right to procure from other vendors and use products and services
similar to or competitive with the Software.
16.16
365(n)
Bankruptcy Election. All rights and licenses granted under or
pursuant to this Agreement by Primal to Licensee are, and shall otherwise be
deemed to be, for purposes of ▇▇▇▇▇▇▇ ▇▇▇ (▇) ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy
Code (the “Code”), licenses to rights to “intellectual property” as defined
under the Code. The parties agree that Licensee, as licensee of such
rights under this Agreement, shall retain and may fully exercise all of its
rights and elections under the Code. Nothing contained in this Section is
intended to nor shall be interpreted to constitute a waiver of any right(s) that
Depositor or a Bankruptcy Trustee may have under the Code, as Depositor
expressly reserves its right to exercise any and all options available to it
under the Bankruptcy Code.
16.17
Insurance. Vendor
shall obtain, as of the Effective Date, and thereafter maintain, the insurance
in the amounts and pursuant to the terms set forth on Attachment
A. Such insurance shall cover all Third Party Products and Service
while they are located at Primal’s facilities, including at all times during the
Temporary Hosting Period.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
|
Primal
Solutions, Inc.
|
Licensee: Time Warner Cable Information
Services (Maine), LLC
By: Time
Warner Entertainment Company, LP., Sole
Member, through its Time Warner Cable Division
|
|||
|
By:
|
/s/▇▇▇▇
▇▇▇▇▇▇
|
By:
|
/s/▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
Signature
|
Signature
|
|||
|
Name:
|
▇▇▇▇
▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
Print
or Type Name
|
Print
or Type Name
|
|||
|
Title:
|
President
& CEO
|
Title:
|
Senior
Vice President - Voice
|
|
Primal
Solutions, Inc. - Confidential
TWC/Primal
MSLA
1 -
18
PRIMAL
MASTER
SOFTWARE LICENSE AGREEMENT (Monthly)
Attachment
A
INSURANCE
REQUIREMENTS FOR VENDORS
CLASS
III
All
contractors doing business with Time Warner Cable must provide evidence of the
following types of insurance--in the form of a Certificate of Insurance, before
they are allowed to begin work; sub-contractors must show evidence of insurance
in the same amounts and form.
1. Commercial Comprehensive
General Liability Coverage
Coverages: Premises &
Operations, Broad Form or Blanket Contractual Liability, Independent Contractors
Liability, Products/Completed Operations, Personal Injury and Broad Form
Property Damage.
Minimum
Limits of Insurance Liability:
|
X
|
General Aggregate | $500,000 (Minimum) |
|
X
|
Each Occurrence (BI/PD) | $500,000 (Minimum) |
|
X
|
Products/Completed Operations | $500,000 (Minimum) |
|
X
|
Fire Damage (any one fire) | $10,000 |
|
X
|
Medical Expenses (any one person) | $5,000 |
|
X
|
Additional
Insured -- Use ISO Form CG2010
|
2. Business Automobile
Liability Coverage
Coverages: Any Auto Coverage,
All owned and leased vehicles, Blanket Contractual Coverage.
Minimum
Limits of Insurance Liability:
(Combined
Single Limit for Property Damage and Bodily Injury)
|
X
|
General Aggregate | $500,000 (Minimum) |
|
X
|
Each Accident |
3. Worker’s Compensation
Insurance
Coverages
and Minimum Limits:
|
X
|
Part I | Workers Compensation | Statutory Limits |
|
X
|
Part II | Employers Liability | |
| Bodily Injury by Accident | $500,000 (Minimum) | ||
| Bodily Injury by Disease (Each Employee) | $500,000 (Minimum) | ||
| Disease Policy Limit | $500,000 (Minimum) |
4. Excess Umbrella Liability
Policy (Follow-Form)
|
X
|
Per Occurrence | Amount must be such that when added to the primary policy coverage, limits are equal to $500,000. |
|
X
|
General Aggregate | $500,000 (Minimum) |
5. Errors
and Omissions Insurance
Coverages
and Minimum Limits:
|
X
|
Professional E&O | $1,000,000 (Minimum) |
1 -
19
PRIMAL
MASTER
SOFTWARE LICENSE AGREEMENT (Monthly)
6. Insurance-
General Conditions
|
a)
|
Insurance
carriers must be satisfactory to Time Warner Cable as to an acceptable
Standard & Poor’s Financial Rating and an A.M. Best rating of at
least A-. (Contact Risk Management for information on obtaining a
rating guide.)
|
|
b)
|
The
Contractor will name as an “Additional
Insured”,
Time Warner Cable and those designated by Time Warner Cable including “its
agents, affiliates and
subsidiaries”.
|
|
|
d)
|
All
policies of insurance will contain a statement that said policy is primary coverage to
Time Warner Cable and its agents, affiliates and subsidiaries and that any
coverage maintained by Time Warner Cable is non-contributory, for
claims or losses resulting from the negligence of
Contractor.
|
|
e)
|
All
policies shall contain a Waiver of Subrogation in favor of Time Warner
Cable, its agents, affiliates and subsidiaries, for claims or losses
resulting from the Contractor’s
negligence.
|
|
f)
|
The
cost of any deductible amounts or self-insured retention’s contained in
any of the insurance policies pursuant to a contract, whether approved or
not approved by Time Warner Cable, are to be borne by the Contractor
without any increase or adjustment to the applicable Contract
amount.
|
|
g)
|
Any
Excess Umbrella Liability policies will be “follow-form” and cover in the
same manner as the Commercial General Liability Policy, Commercial
Automobile Liability Policy and Employer’s Liability Policy and will not
contain any additional exclusions or limitations of those said
policies.
|
|
h)
|
All
policies will provide for (30) days prior written notice to Time Warner
Cable and any additional insured, at the address designated by Time Warner
Cable, of any cancellation, modification or renewal. The
cancellation clause on the standard ▇▇▇▇▇ form will be amended by striking
the words, “endeavor to” and “. . . but failure to mail such notice shall
impose no obligation or liability of any kind upon the
company.”
|
|
i)
|
In
the event Contractor fails to procure and maintain the coverages required
per contract, Time Warner Cable may, but is not obligated to, procure said
insurance for the benefit of Time Warner Cable and its designee at the
cost and expense of the Contractor. This amount will be payable
to Time Warner Cable upon demand.
|
|
j)
|
The
Contractor will furnish Time Warner Cable with a certificate of insurance
reflecting and confirming that the insurance is provided in accordance
with the insurance provisions of the contract and will include a copy of
all endorsements specifically applicable to Time Warner Cable. This
certificate will be provided on the industry standard “▇▇▇▇▇” form and
will be signed in ink with an original signature of an authorized
representative of the insurance
company.
|
|
k)
|
The
minimum limits of insurance coverage required are subject to increase by
Time Warner Cable if at any time Time Warner Cable deems necessary for
adequate protection. Within (30) days of demand for such
increased coverage Contractor will deliver to Time Warner Cable evidence
of such increased coverage in the form of an endorsement or replacement
insurance policy or certificate and in keeping with all other insurance
provisions contained herein. To the extent such demand for
increased coverage results in additional insurance premiums, Time Warner
Cable agrees to reimburse Primal (Contractor) for such additional
insurance premiums in accordance with the payment terms of this
Contract. In the event that the Contractor fails to procure or
maintain the coverage required in accordance with these insurance
provisions contained in the contract, Time Warner Cable may, but is not
obligated to, procure said insurance at the sole cost and expense of
Contractor. This amount will be payable to Time Warner Cable on
demand.
|
1 -
20
PRIMAL
MASTER
SOFTWARE LICENSE AGREEMENT (Monthly)
|
|
l)
|
All
of the conditions contained in this section will also apply to any
subcontracted operations.
|
|
|
m)
|
Certificate
Holder:
|
Time
Warner Cable, its agents, affiliates & subsidiaries
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
Risk Management
Primal
Solutions, Inc. - Confidential
TWC/Primal
MSLA
1 -
21
Primal/TWC Schedule 1 to
MSLA
SCHEDULE
1
Dated as
of December 11,
2002
to
the
Master
Software License Agreement dated as of December 11, 2002
by and
between
Primal
Solutions, Inc. as Licensor (“Primal”) and
Time
Warner Cable Information Services (Maine), LLC, as Licensee
(“Licensee”).
[Superseded
by Schedule 2 under Attachment A to Amendment 2,
effective
January 1, 2005 to Master Software License Agreement
dated
December 11, 2002 between Primal Solutions, Inc. and
Time
Warner Cable Information Services (Maine), LLC]
Primal/TWC
Schedule 1 to MSLA
December 11,
2002
1 -
22
SCHEDULE
2
Dated as
of December 11,
2002
to
the
Master
Software License Agreement dated as of December 11, 2002
by and
between
Primal
Solutions, Inc. as Licensor (“Primal”) and
Time
Warner Cable Information Services (Maine), LLC, as Licensee
(“Licensee”).
[Superseded
by Schedule 2 under Attachment A to Amendment 2,
effective
January 1, 2005 to Master Software License Agreement
dated
December 11, 2002 between Primal Solutions, Inc. and
Time
Warner Cable Information Services (Maine), LLC]
Primal/TWC
Schedule 2 to MSLA
December 11,
2002
1 -
23
Primal/TWC Schedule 3 to
MSLA
SCHEDULE
3
Dated as
of December 11,
2002
to
the
Master
Software License Agreement dated as of December 11, 2002
by and
between
Primal
Solutions, Inc. as Licensor (“Primal”) and
Time
Warner Cable Information Services (Maine), LLC, as Licensee
(“Licensee”).
[Superseded
by Schedule 3 under Attachment B to Amendment 2,
effective
January 1, 2005 to Master Software License Agreement
dated
December 11, 2002 between Primal Solutions, Inc. and
Time
Warner Cable Information Services (Maine), LLC]
Primal/TWC
Schedule 3 to MSLA
December 11,
2002
1 -
24
Primal/TWC Schedule 4 to
MSLA
SCHEDULE
4
Dated as
of December 11,
2002
to
the
Master
Software License Agreement dated as of December 11, 2002
by and
between
Primal
Solutions, Inc. as Licensor (“Primal”) and
Time
Warner Cable Information Services (Maine), LLC, as Licensee
(“Licensee”).
PRIMAL
Maintenance and Support Program
This Schedule is issued pursuant to the
Master Software License Agreement identified above (the “Agreement”). All of the
terms and conditions of this Schedule are incorporated into the Master Software
License Agreement and made a part thereof.
|
1.
|
SERVICE
PRIORITY LEVELS
|
PRIMAL
will respond to Service Requests based on the following Priority
Levels:
|
PRIORITY
|
DESCRIPTION
|
INITIAL
RESPONSE
|
*
TURN-AROUND
|
*
PERMANENT FIX
|
||
|
1
|
PRIMAL
Software is unusable and the Licensee cannot conduct business; failure of
a major process that prevents Licensee from conducting its normal
business. (e.g., provide real-time call processing, or
run mission critical PRIMAL Software).
|
[***]
|
[***]
|
[***]
|
||
|
2
|
Severe
loss of functionality to a group of users or to a single user running a
business-critical operation.
|
[***]
|
[***]
|
[***]
|
||
|
3
|
Inconvenient
situation whereby the PRIMAL Software is usable, but does not provide a
function in the most convenient or expeditious manner.
|
[***]
|
Notification
within [***]
regarding
intended action
|
[***]
|
||
|
4
|
Minor
Software problem that does not prevent Licensee from doing their
work.
|
[***]
|
Notification
within [***]
regarding
intended action
|
N/A
|
[***]
Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.
Primal/TWC
Schedule 4 to MSLA
December 11,
2002
1 -
25
Primal/TWC Schedule 4 to
MSLA
|
2.
|
SERVICE
LEVEL PROCEDURES
|
The following
process shall be used to address and resolve Service Requests.
When a
fault is suspected, the Licensee must complete a PRIMAL Trouble Report Form
(“Service Request”, example is provided as Exhibit A) and contact Customer
Support via telephone or email. Work will not commence until a complete
description of the suspected fault or problem has been received and
documented
Initial Response: Within the
designated Initial Response period, a PRIMAL Customer Service Agent (CSA) will
notify Licensee of Trouble Report. As part of the Initial Response,
the PRIMAL CSA shall advise Licensee of potential remedies, discuss
and mutually agree on the Priority level, and initiate actions to address the
Service Request.
Turn-Around: Within
the designated Turn-Around period, PRIMAL shall notify
Licensee of the intended action for a temporary fix or work
around. If the resolution for the Turn-Around requires a temporary
bug fix or software change, Primal shall provide the code within the Turn-around
period. If the Turn-Around requires a work around process or
environmental change (hardware, network interface, OS or third party software),
Primal shall advise Licensee of the steps to be taken to implement the
work-around process. In addition, within the designated Turn-Around
Time or as soon as practical thereafter, Primal shall advise Licensee
of the intended actions for a Permanent Fix.
Permanent
Fix Within the designated Permanent Fix period, Primal will
provide a software patch that corrects the condition that was the cause of the
Service Request. If the Permanent Fix requires a changes to Licensee’s
procedures or environmental change (hardware, network interface, OS or third
party software), Primal shall advise Licensee of the steps to be taken to
implement the Permanent Fix.
(*)
Subject to Licensee’s right to retain after-hours support pursuant to Section
6.2.1, the time frames listed above are applicable during PRIMAL's Normal
Support Hours. Priority 1 Service Requests will be handled in a sequential order
unless multiple Priority 1 Service Requests exist on a given day, then Licensee
and PRIMAL must agree on the appropriate ▇▇▇▇▇ ▇ Service Request priorities
daily.
NOTE: While PRIMAL will respond
promptly to all Service Requests, it is necessary to prioritize Service Requests
to meet all customer needs. The priority of the Service
Request will primarily be determined by the direct impact to the daily business
operations of the Licensee. The priority will be determined and mutually agreed
upon by Licensee and a PRIMAL CSA.
NOTE:
Upon advanced notice by PRIMAL and approval by Licensee, and subject to Sections
1.4, 1.5, 1.7, 1.10, 5 and 6 of the Agreement, Licensee may be charged PRIMAL's
hourly rates (set forth in 14.2 of the Agreement) for platform support, problems
with Third-Party Software, improper use of the Program and for support of a
Release that is not supported pursuant to the terms of the
Agreement.
|
3.
|
CONTACT PROCEDURE
|
During
Standard Support Hours, Contact the CSA First Level contact at the PRIMAL Office
in Irvine, California. Contact with the PRIMAL support services can be made by
telephone, voice-mail, e-mail, facsimile, or other means as agreed upon by
PRIMAL and Licensee. For Emergency Support outside of these hours,
for Priority 1 and Priority 2 matters, contact shall be made to the designated
Primal CSA by means agreed upon by Primal and Licensee.
1 -
26
Primal/TWC Schedule 4 to
MSLA
Standard Support Hours. These
are the hours that a Licensee may contact their designated support center as
identified in the Contact Procedure Section. Standard Support Hours for the
California-based office are 6:00 a.m. to 5:00 p.m. Pacific Standard Time (PST),
Monday through Friday, excluding PRIMAL holidays, for Service Requests that are
Priority 3 and 4 (medium to low priority) Service Requests as identified in
Section 1 of this Exhibit.
Emergency Support. Priority 1
and 2 (high priority) Service Requests are taken 24 hours a day, 7 days a week,
365 days a year. See Section 1 above for the definition of Priority 1 and
Priority 2 Service Requests.
|
4.
|
ESCALATION
PROCEDURE
|
When a
Service Request has missed its Initial Response or Turn-Around date, the
escalation levels and contacts are as described as follows:
Step 1: If
the CSA cannot be reached within one hour or has not responded satisfactorily,
contact the Client Support Lead. If no response within half-an-hour, proceed to
Step 2.
Step 2:
Contact the Client Services Manager. If no response within half-an-hour, proceed
to Step 3.
Step 3:
Contact the President of PRIMAL.
5.
[***]
IN WITNESS WHEREOF, the parties hereto
have executed this Schedule as of the date first written above.
|
Primal
Solutions, Inc.
|
Licensee: Time Warner Cable Information
Services (Maine), LLC
By: Time
Warner Entertainment Company, LP.,
Sole
Member, through its Time Warner Cable Division
|
|||
|
By:
|
/s/
▇▇▇▇ ▇▇▇▇▇▇
|
By:
|
/s/▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
Signature
|
Signature
|
|||
|
Name:
|
▇▇▇▇
▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
Print
or Type Name
|
Print
or Type Name
|
|||
|
Title:
|
President
& CEO
|
Title:
|
Senior
Vice President - Voice
|
|
[***]
Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.
Primal/TWC
Schedule 4 to MSLA
December 11,
2002
1 -
27
Primal/TWC Schedule 4 to
MSLA
EXHIBIT
A
PRIMAL TROUBLE TICKET
FORM
Customer
Information:
|
Company:
|
Name:
|
|
Address:
|
Preferred
contact:
|
|
Country:
|
Zip:
|
|
Phone: Ext:
|
Fax:
|
|
E-mail:
|
Issue
Information:
|
Date
Reported:
|
Time:
|
|
Primal
Priority Level
|
|
Technical
Information:
|
Product:
|
OS:
|
|
Version:
|
Version
(including Patch Releases):
|
|
Other
Software on Host/Server/Workstation
|
|
|
Please
describe problem:
|
|
|
When
did problem begin?
|
|
|
Please
list any subsequent occurrences:
|
|
|
Have
you changed any hardware since the problem began? If yes,
what?
|
|
|
Have
you installed any software since the problem began? If
yes
|
|
|
Has
your system displayed any similar or related problems before? If so, how
did you resolve each one?
|
|
|
If
the problem causes any error messages to appear, please write down
the exact text displayed and enter it here:
|
|
|
If
the problem is reproducible, please list the steps required to cause it,
leaving a blank line between steps:
|
|
|
If
the problem is not reproducible (only
happened once, or occasionally or for no apparent reason), please
describe the circumstances in which it occurred and the symptoms
observed:
|
|
|
If
there's any additional information you'd like to tell us, please enter in
the space below.
|
|
Primal/TWC
Schedule 4 to MSLA
December 11,
2002
1 -
28
AMENDMENT
1 TO
MASTER
SOFTWARE LICENSE AGREEMENT (THE “AGREEMENT”)
DATED
DECEMBER 11, 2002
BETWEEN
Primal
Solutions, Inc. (“Primal”)
AND
Time
Warner Cable Information Services (Maine), LLC (“Licensee”)
Effective
as of January 1, 2004 (the “Second Amendment Date”), the Agreement is amended as
follows:
1. In
Section 1.1 of the Agreement:
(a) After
the words “with respect to such Programs (the “Designated Location(s)”)”, add
the words “, or at the Hosted Environment (as defined in Section
1.5),”.
(b) After
the words “installs the Software at any other site(s) other than the Designated
Location(s)”, add the words “or the Hosted Environment”.
(c) After
the words “internal data processing needs at the Designated Location(s)”, add
the words “or the Hosted Environment”.
2. In
Section 1.7 of the Agreement:
(a) In
the first sentence, add the words “If and when Licensee desires to have the
Installation installed at the Designated Location(s) as of any date after
December 31, 2004,” before the words “Licensee shall prepare its Designated
Location(s). . . ”.
(b) In
the first sentence, add the words “with at least ninety (90) days prior written
notice” between the words “shall notify Primal” and “that the Designated
Location(s) is so prepared. . .”.
3. In
Section 2.3 of the Agreement, replace the words “thirty (30) days” with the
words “ninety (90) days” and replace the words “the one (1) year anniversary of
the Effective Date” with the words “December 31, 2004”.
4. In
Section 3.2 of the Agreement, delete the words “and (ii) the number of call
detail records”.
5. In
Section 9 of the Agreement:
(a) Insert
the words “(or Primal, prior to Designated Location Software Acceptance)” after
the words “errors or defects of or in the Software, Licensee”.
2 -
1
(b) Delete
the words “, at its discretion,” before the words “regularly maintain and
verify. . .”.
(c) Add
the words “After Designated Location Acceptance,” before the words “Primal shall
not be held responsible for any loss or damage. . .”.
6. In
Section 12 of the Agreement, replace:
“If to
Licensee:
Time
Warner Cable Information Services (Maine), LLC
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
attn:
[ ]
With a
copy to:
Time
Warner Cable Information Services (Maine), LLC
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
attn: General
Counsel”
with:
“If to
Licensee:
Time
Warner Cable Information Services (Maine), LLC
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
attn:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
With a
copy to:
Time
Warner Cable Information Services (Maine), LLC
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
attn: General
Counsel”
7. In
Section 14.3 of the Agreement, replace the words “date of Hosted Software
Acceptance” with the words “January 1, 2004“.
8. Section 15.1
of the Agreement shall be deleted in its entirety and replaced with the
following:
15.1
Source Code Escrow. If and only if Licensee so requests in writing at
any time: (i) Primal shall enter into an agreement (a “Source Code Escrow
Agreement”) with an independent third party (an “Escrow Agent”) under which
Primal is obligated to deposit a fully commented and documented copy of the
source code form of the Program, a listing thereof and all relevant commentary,
2 -
2
including
explanation, flow charts, algorithms and subroutine descriptions, memory and
overlay maps and other documentation of the source code (“Commentary”, together
with the source code and listing, the “Deposit”), and to continuously update
such Deposit with a fully commented and documented copy of the source code form
of all Error Corrections, Basic Enhancements and Releases (“collectively,
“Updates”), a listing thereof and all relevant Commentary, as such Updates are
released, (ii) Primal shall make the Deposit, and (iii) Primal shall facilitate
and cooperate with the process of making Licensee a beneficiary under the Source
Code Escrow Agreement such that the Escrow Agent will be obligated to notify
Licensee in the event that Primal has not updated its Deposit upon its release
of an Update, and such that the Escrow Agent will be obligated to release the
Deposit to Licensee in the event of either of the following
conditions: (a) Primal breaches a material provision of Section 6 of
this Agreement and fails to cure its breach within the time period(s) allotted
therein (as applicable), or (b) Primal becomes the subject of an involuntary
petition in bankruptcy or any involuntary proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of creditors; provided
however, that Primal shall have one hundred twenty (120) calendar days to cure
said release condition in this subsection ‘(b)’ from the date of
occurrence. Primal hereby grants Licensee a license to use, copy,
make derivative works from and otherwise modify the Deposit to support and
maintain the Program upon release of the Deposit to Licensee pursuant to the
Source Code Escrow Agreement. Licensee shall pay the Escrow Agent all
fees charged by the Escrow Agent for the rights afforded to Licensee pursuant to
the Source Code Escrow Agreement in the event Licensee becomes a beneficiary
thereto. Licensee shall directly pay all such fees to the Escrow
Agent. Except for any fees or costs required by the Escrow Agent
pursuant to the Source Code Escrow Agreement, Licensee shall be responsible for
no other fees or payments arising from this Section 15.1. For the
avoidance of doubt, the Source Code Escrow Agreement is supplementary to this
Agreement.
9. Schedules
1 and 2 to the Agreement are hereby deleted in their entirety and replaced with
Attachment A to this Amendment 1.
10. Schedule
3 to the Agreement is hereby deleted in its entirety and replaced with
Attachment B to this Amendment 1.
[Remainder
of page intentionally left blank.]
2 -
3
Except as
specifically set forth above, the terms and conditions of the Agreement shall
remain unmodified.
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment 1 as of the
date first set forth above.
|
Primal
Solutions, Inc.
|
Licensee: Time Warner Cable Information
Services (Maine), LLC
By: Time
Warner Entertainment Company, LP., Sole Member, through its Time Warner
Cable Division
|
|||
|
By:
|
/s/▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
By:
|
/s/▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
Signature
|
Signature
|
|||
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
Print
or Type Name
|
Print
or Type Name
|
|||
|
Title:
|
President
& CEO
|
Title:
|
Executive
Vice President
|
|
2 -
4
Attachment
A
SCHEDULE
2
Dated as
of January 1, 2004
to
the
Master
Software License Agreement dated as of December 11, 2002, amended January 1,
2004
by and
between
Primal
Solutions, Inc. as Licensor (“Primal”) and
Time
Warner Cable Information Services (Maine), LLC, as Licensee
(“Licensee”).
[Superseded
by Schedule 2 under Attachment A to Amendment 2,
effective
January 1, 2005 to Master Software License Agreement
dated
December 11, 2002 between Primal Solutions, Inc. and
Time
Warner Cable Information Services (Maine), LLC]
2 -
5
Annex A
to Schedule 2
Documentation
Access IM
System Guide, Version 7.2.5
Access IM
Installation Guide, Version 7.2.5
Access IM
User Guide, Version 7.2.5
Access IM
Training Guide, Version 7.2.5
Connect
RTR Rater Installation Guide, Version 4.5
Connect
RTR Oracle Installation Guide, Version 4.5
Connect
RTR User Guide, Version 4.5
Connect
RTR Interface Protocol, Version 4.5
EBP&P
System Guide, Version 3.0
EBP&P
Training Guide, Version 3.0
EBP&P
1.1 Installation & Setup Guide, Version 3.0
BRMFS1
479378v1
2 -
6
Annex B
to Schedule 2
Licensee-Provided
Third Party Hardware
AIM01 –
Mediation Server
Sun v240,
2 x 1 GHz CPU
4GB RAM,
4x36GB Disk
AIM02 –
Mediation Server
Sun v240,
2 x 1GHz CPU
4GB RAM,
4x36GB Disk
Rater01 –
Rating Server
Sun 280r,
2 x 900MHz CPU
2 GB RAM,
2x72GB Disk
Rater02 –
Standby Rating Server
Sun 280r,
2 x 900MHz CPU
2 GB RAM,
2x72GB Disk
Database
Server
Sun v440,
4 x 1GHz CPU
8GB RAM,
4x36GB int Disk
24x73GB
external Disk
L8 Auto
Loader
WPM01 –
Web Server
Sun v120,
1 x 548MHz CPU
1GB RAM,
2X36GB Disk
WPM02-
Web Server
Sun v120,
1 x 548MHz CPU
1GB RAM,
2X36GB Disk
2 -
7
Attachment
B
SCHEDULE
3
Dated as
of January 1, 2004
to
the
Master
Software License Agreement dated as of December 11, 2002, amended January 1,
2004
by and
between
Primal
Solutions, Inc. as Licensor (“Primal”) and
Time
Warner Cable Information Services (Maine), LLC, as Licensee
(“Licensee”).
[Superseded
by Schedule 3 under Attachment B to Amendment 2,
effective
January 1, 2005 to Master Software License Agreement
dated
December 11, 2002 between Primal Solutions, Inc. and
Time
Warner Cable Information Services (Maine), LLC]
2 -
8
AMENDMENT
2 TO
MASTER
SOFTWARE LICENSE AGREEMENT (THE “AGREEMENT”)
DATED
DECEMBER 11, 2002 (AS AMENDED)
BETWEEN
PRIMAL
SOLUTIONS, INC. (“PRIMAL”)
AND
TIME
WARNER CABLE INFORMATION SERVICES (MAINE), LLC (“LICENSEE”)
Effective
as of January 1, 2005 (the “Second Amendment Date”), the Agreement is
amended as follows:
1. In
Section 1.7 of the Agreement, in the first sentence, before the words “Licensee
shall prepare its Designated Location(s). . . ” replace the words “December 31,
2004” with “December 31, 2005,”.
2. In
Section 2.3 of the Agreement, replace the words “December 31, 2004” with the
words . “December 31, 2005,”.
3. In
Section 14.3 of the Agreement, replace the words “January 1, 2004” with the
words “January 1, 2005“.
4. Schedule
2 to the Agreement is hereby deleted in its entirety and replaced with
Attachment A to this Amendment 2.
5. Schedule
3 to the Agreement is hereby deleted in its entirety and replaced with
Attachment B to this Amendment 2.
Except as
specifically set forth above, the terms and conditions of the Agreement shall
remain unmodified.
IN WITNESS WHEREOF, the parties hereto
have executed this Amendment 2 as of the Second Amendment Date.
|
Primal
Solutions, Inc.
|
Licensee: Time Warner Cable Information
Services (Maine), LLC
By: Time
Warner Entertainment Company, LP.,
Sole
Member, through its Time Warner Cable Division
|
|||
|
By:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
By:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
Signature
|
Signature
|
|||
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇
|
|
|
Print
or Type Name
|
Print
or Type Name
|
|||
|
Title:
|
President
& CEO
|
Title:
|
Senior
Vice President
|
|
|
Date:
|
12-16-04
|
Date:
|
12-16-04
|
|
3 -
1
Attachment
A
to
Amendment
2
SCHEDULE
2
This Schedule 2 is issued pursuant to
the Master Software License Agreement, dated as of December 11, 2002, as amended
(the “Agreement”). All of the terms and conditions of this Schedule are
incorporated into the Agreement and made a part thereof.
1.
PROGRAMS
|
PRODUCT
(OR SOFTWARE MODULE)
|
VERSION
#
|
||
|
Access
IM
|
7.2
|
||
|
Connect
RTR
|
2.2
|
||
|
Connect
WPM
|
2.0
|
2.
LICENSE FEES AND PAYMENT TERMS:
2.1. Monthly Use License
Fees
Licensee
shall pay the Monthly Use License Fee as set forth in Table 2.1 below in
accordance with this Section 2.1.
Primal
will be allowed to perform remote log review on a monthly basis to determine
appropriate Monthly Use License Fee, solely pursuant to Section 3.2 of the
Agreement.
Monthly
Use License Fee will be determined by multiplying the count of actual subscriber
accounts registered in the [***] (hereafter, the “Subscriber Count”) times the
price per subscriber set forth in Table 2.1 below.
Each
calendar month, on the first calendar day of the month, Primal shall determine
the Subscriber Count by performing a log review. Primal shall provide
invoice by email and fax to Licensee’s designated representative of the
Subscriber Count and Monthly Use License Fee not less than 7 days after the
first calendar day of each month.
Table
2.1 – Monthly Use License Fee Table
|
Tier
|
Minimum
Subscribers
|
Maximum
Subscribers
|
Price
per Subscriber
|
||
|
1
|
1
|
50,000
|
[***]
|
||
|
2
|
50,001
|
100,000
|
[***]
|
||
|
3
|
100,001
|
200,000
|
[***]
|
||
|
4
|
200,001
|
300,000
|
[***]
|
||
|
5
|
300,001
|
400,000
|
[***]
|
||
|
6
|
400,001
|
500,000
|
[***]
|
||
|
7
|
500,001
|
600,000
|
[***]
|
||
|
8
|
600,001
|
700,000
|
[***]
|
||
|
9
|
700,001
|
800,000
|
[***]
|
||
|
10
|
800,001
|
900,000
|
[***]
|
||
|
11
|
900,001
|
1,000,000
|
[***]
|
||
|
12
|
1,000,001
|
1,100,000
|
[***]
|
||
|
13
|
1,100,001
|
1,200,000
|
[***]
|
||
|
14
|
1,200,001
|
1,300,000
|
[***]
|
||
|
15
|
1,300,001
|
1,400,000
|
[***]
|
||
|
16
|
1,400,001
|
1,500,000
|
[***]
|
[***]
Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.
3 -
2
For
illustration, if there are 250,500 Subscribers, the monthly fee is 250,500 x
[***] = $[***].
Pricing
in Table 2.1 shall remain in effect through December 31, 2005, and thereafter,
Primal may adjust the prices no more than one (1) time annually upon sixty (60)
days written notification to Licensee, provided however that any increase to the
prices shall not exceed the lesser of: (a) the [***]; or (b) [***] percent
([***]%).
2.2.
Standard Payment
Terms:
Upon
delivery of the invoice of Subscriber Count and Monthly Use License Fee referred
to in Section 2.1 above, payment shall then be due, within sixty (60) days of
Licensee’s receipt of such invoice, in accordance with this
Agreement.
3. DESIGNATED
INSTALLATION LOCATION:
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or at such other site designated by
Licensee from time to time.
4. SPECIAL
CONTRACT TERMS:
Not
applicable
5. 3RD PARTY
SOFTWARE AND HARDWARE:
A. Licensee-Provided Third Party
Products: Licensee shall be responsible for obtaining the
Licensee-Provided Third Party Products and Services as set forth
below:
Third Party
Software: Oracle Relational Database Management System,
Enterprise Edition, version 8.1.7 for Sun Solaris 8 Operating
System;
Third
Party Hardware:
See
Exhibit A to this
Schedule, Third Party Hardware
B. Primal-Provided Third Party
Products: Primal shall be responsible for obtaining the
Primal-Provided Third Party Products as set forth below:
Novell
Extend Application Server, Enterprise Edition, Version 3.75 (formerly
Silverstream Application Server) for Unix Solaris version 8.
|
6.
|
SCALABILITY
WARRANTY:
|
Primal
represents and warrants that the Software licensed pursuant to this schedule
[***] using the Third Party Product and Services set forth in this
Schedule. This warranty is subject to revision, by mutual written
agreement, pursuant to the Statement of Work. Primal also represents
and warrants that the Software [***].
[***]
Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.
3 -
3
IN WITNESS WHEREOF, the parties hereto
have executed this Schedule effective as of January 1, 2005.
|
Primal
Solutions, Inc.
|
Licensee: Time Warner Cable Information
Services (Maine), LLC
By: Time
Warner Entertainment Company, LP.,
Sole
Member, through its Time Warner Cable Division
|
|||
|
By:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
By:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
Signature
|
Signature
|
|||
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇
|
|
|
Print
or Type Name
|
Print
or Type Name
|
|||
|
Title:
|
President
& CEO
|
Title:
|
Senior
Vice President
|
|
|
Date:
|
12-16-04
|
Date:
|
Dec
21, 2004
|
|
BRMFS1
479378v1
3 -
4
Attachment
B
to
Amendment
2
SCHEDULE
3
This
Schedule is issued pursuant to the Master Software License Agreement, dated as of
December 11, 2002, as amended (the “Agreement”). All of the terms and conditions
of this Schedule are incorporated into the Agreement and made a part
thereof.
|
1.
|
THE
SERVICES
|
Primal
will provide the following services during the Hosting Period (as defined in
Section 4 of this Schedule).
|
|
a. Application Management
Services: Primal will perform Application Management Services at
the frequency set forth below for each
division.
|
|
Table
1.a Application Management Services
|
||||
|
Process
|
Detail
|
Frequency
|
||
|
Rate
Plan Maintenance
|
Re-configure
rate plan, charges and rules according to Licensee’s written instructions
to make such changes as required by the business
|
As
required
|
||
|
Location
Data
|
Load
and maintain location data
|
As
location data is updated from CCMI service, but not more frequently than
once a week*
|
||
|
[***]
|
Update
the [***] as the data is received in an agreed upon format from
Licensee
|
As
[***], but not more frequently than once daily
|
||
|
Cycle
Billing
|
Creation
of ‘lock-box’ files for billing
|
Unlimited
files per cycle as per Licensee’s instructions; two cycles per month on
the dates designated by Licensee. At Licensee’s request, cycles
may be daily instead of monthly.
|
||
|
Software
Statistical Reports
|
Upon
request from Licensee, Primal will provide Licensee with the reports
detailed in the Documentation in ASCII or PDF format as
available. (Note: Authorized personnel from Licensee can be
given access to the system for running reports after they have been
trained)
|
Weekly
as requested
|
||
|
Operating
System and database management
|
Proactive
monitoring and administration of all aspects of the Sun operating system
and Oracle RDBMS)
|
As
required
|
||
|
Monthly
Archiving and Purging
|
Archive
source data files from Access IM application and billed CDR data from
Connect RTR CDR Repository to appropriate backup media. Archive
media will be provided to Licensee.
|
One
time per month
|
||
[***]
Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.
3 -
5
|
Table
1.a Application Management Services
|
||||
|
Process
|
Detail
|
Frequency
|
||
|
Monthly
backup of rated data (anything rated greater than $0.00)
|
Format
of Data must be retrievable by Licensee in a file format type specified by
Licensee.
|
Monthly
|
*CCMI
Rate Location data as provided under Licensee’s subscription service to the CCMI
Qtel 9000 database.
b. Application Hosting
Services: Primal will provide Application Hosting Services as set forth
below.
|
Process
|
Detail
|
Frequency
|
||
|
Data
Center
|
Host
Licensee’s servers in [***], subject to the Hosting Service Levels as set
forth in Section 3 below
|
Not
Applicable
|
||
|
Daily
Backup
|
Daily
Backup of operational and configuration data for each of the Hosted
Applications and storage of backup media off-site
|
Daily
|
||
|
System
Backup
|
Complete
System Backup and storage of backup media off-site
|
Weekly
|
All
backup media used in conjunction with the Application Hosting Services shall be
provided to Licensee’s designated representative within fifteen (15) days after
the termination of this Schedule.
|
-
|
Project Management –
Primal will provide overall project management and coordination of the
above tasks with the appropriate Time Warner Cable
personnel.
|
|
2.
|
FEES AND PAYMENT
TERMS:
|
Monthly
Fees for services provided pursuant to this schedule shall be paid in accordance
with Section 3.1 of the Agreement according to the schedule set forth
below.
|
a.
|
Application
Management Fees
|
Licensee
shall pay [***] dollars ($[***]) per calendar month for Application Management
services.
Should
the number of hours expended by Primal for Application Management services
exceed [***] ([***]) hours in any calendar month, Licensee shall pay for
additional Technical Support services at $[***] per hour for each hour in excess
of such [***] hours.
Licensee
shall have the right to terminate the Application Management services provided
under this section, for any reason or no reason, upon ninety (90) days written
notice to Primal, provided that no such termination shall be effective prior to
December 31, 2005.
|
b.
|
Hosting
Services
|
Monthly
Hosting Fee of $[***] per month shall be paid in accordance with Section 3.1 of
the Agreement. Licensee shall have the right to terminate the Hosting Services
provided under this section, for any reason or no reason, upon ninety (90) days
written notice to Primal, provided that no such termination shall be effective
prior to December 31, 2005.
|
c.
|
Miscellaneous
Fee and Payment Terms
|
[***]
Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.
3 -
6
Pricing
in Section 2 shall remain in effect for 12 months from January 1, 2005, and
thereafter, Primal may adjust the prices no more than one (1) time annually upon
sixty (60) days written notification to Licensee, provided however that any
increase to the prices shall not exceed the lesser of: (a) the [***]; or (b) [***] percent
([***]%).
Licensee
will reimburse Primal any actual costs for backup media.
3. APPLICATION HOSTING SERVICE
LEVELS:
Subject
to the terms of this Agreement, Primal shall provide the Hosting Services 24
hours per day, 7 days per week throughout the Term of this Schedule
3.
A. UPTIME. The Availability
(defined below) of the Hosted Applications CDR Collectors shall be at least
99.99% during each month of the Term. “Availability” shall
mean (y) Available for Use, divided by (z) Scheduled Uptime less Excused
Downtime. For purposes of clarification, availability shall be
calculated separately for each Product that is a part of the
Agreement. The following definitions shall apply:
(1) “Available For Use”
shall mean the aggregate amount of time in any month that substantially all of
the features and functionality of the Applications intended to be accessed or
otherwise used by Licensee’s employees, agents and Contractors, (“End-Users”)
are accessible to and usable by the End-Users. The Applications
Services shall not be deemed unavailable (i.e. not “Available For Use”) if the
features and/or functionality become unavailable in connection with any factors
beyond Primal’s control. Such factors include, without
limitation:
(a) failures
of personal computers, laptops, phones, and other devices used by the Licensee’s
End-Users or Subscribers (as defined in the Agreement), and any failure caused
by an End-User or subscriber;
(b) failure
of any public or private switched networks or Internet backbones or any circuit
or link to such networks or backbones not within the end-to-end solution
provided by or through Primal hereunder;
(c) force
majeure events; and,
(d) the
inability of any End-User or Licensee’s Subscribers to access the
Hosted Applications because of any problem with its service
provider(s).
(2) “Excused Downtime”
shall mean the aggregate amount of time in any calendar month during Scheduled
Uptime during which the Hosted Applications are not Available For Use, other
than for emergency repairs if and to the extent such unavailability is mutually
agreed upon in writing in advance by the parties pursuant to a mutually agreed
upon maintenance schedule. Any Excused Downtime shall occur between
the hours of 2 am to 5 am Eastern Time unless otherwise instructed by Licensee,
and shall not exceed 8 hours per month. Primal shall provide Licensee with prior
notification of such Excused Downtime.
(3)
“Scheduled
Uptime” shall mean 24 hours per day, 7 days per week, 365 days per year
unless otherwise agreed to by the parties.
B. FACILITIES.
The
hosted applications shall be located in [***]. Servers shall be
located in a secure location with restricted electronic
[***]
Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.
3 -
7
access
control. For the avoidance of doubt, Primal shall take any steps
necessary to protect Licensee’s Confidential Information while it is in Primal’s
possession or control pursuant to this Schedule in accordance with Section 4.3
and 4.4 of the Agreement. Primal shall provide sufficient power for
the servers and uninterruptible power supply using 120VAC circuits with a
minimum of 20 amps rating. Licensee’s servers shall be located on a
dedicated server rack. Primal’s battery back-up and UPS will allow the servers
to run for a minimum of two hours plus whatever time required for a ‘graceful
shutdown’ should power not be restored in the event of a power
outage.
Primal
shall provide network connectivity to and from the Hosted Applications through
dedicated T-1 speed network connection. In addition, Primal shall
provide backup connectivity through Primal’s current corporate T-1 speed network
connection in the event that primary connectivity through the dedicated T-1 is
interrupted.
C. ISSUE RESOLUTION AND
PROCEDURES.
|
1.
|
FAILURE NOTIFICATION
METHOD
|
Notification
method of a hosting related failure of Priority 1 or 2 (as set forth in Table
C3) will be a Primal internal alarm and Licensee notification to the individual
or group identified by Licensee, by the means (e.g., e-mail and/or phone)
identified by Licensee, depending upon failure type, within the time frames set
forth in Table C3. Primal will notify Licensee of any failure that triggers an
internal alarm and provide Licensee with course of action for correction.
Licensee will notify Primal within a reasonable amount of time of any failure
detected by Licensee.
|
2.
|
PROBLEM RESPONSE AND
ESCALATION PROCEDURE
|
Contact
the Primal Customer Service Analyst (“CSA”) First Level contact at the Primal
Office in Irvine, California. Contact with the Primal support services can be
made by telephone, voice-mail, e-mail, facsimile, or other means as agreed upon
in writing by Primal and Licensee. When a Service Request has missed
its Initial Response or Turn-Around target, the escalation levels and contacts
are as described as follows:
Step 1:
If the CSA cannot be reached within one hour or has not responded
satisfactorily, contact the Licensee Support Lead. If no response within
half-an-hour, proceed to Step 2.
Step 2:
Contact the Licensee Services Manager. If no response within half-an-hour,
proceed to Step 3.
Step 3:
Contact the President of Primal.
|
3.
|
RESPONSE
TIMES
|
Response
times for Service Requests are Set Forth in Table C3 below. Hardware Components
are defined as any part of the hardware infrastructure that supports hosted
Primal programs, to include server network, server hardware, embedded server
software, Internet connection, power system and backup system.
Table C3
- Primal will respond to Service Requests based on the following Priority
Levels:
|
PRIORITY
|
DESCRIPTION
|
INITIAL
RESPONSE
|
WORK-AROUND
(SUFFICIENT TO CONDUCT BUSINESS)
|
PERMANENT
FIX
|
3 -
8
|
1 –
Fatal
(Licensee
Owned Hardware)
|
Failure
of a Licensee owned hardware component that renders Primal Software as
unusable and the Licensee cannot conduct business
|
[***]
|
[***]
|
[***]
|
||
|
1 –
Fatal
|
Complete
failure of a hardware component that renders Primal Software as unusable
and the Licensee cannot conduct business
|
[***]
|
[***]
|
[***]
|
||
|
2 –
Severe
|
Severe
loss of a hardware component. Application still operational,
but adversely effects applications, and limits Licensee from conducting
its normal business.
|
[***]
|
[***]
|
[***]
|
||
|
3 –
Moderate
|
Inconvenient
situation whereby a hardware failure effects the application, but does not
limit Licensee from conducting its normal business.
|
[***]
|
[***]
|
[***]
|
|
4.
|
SERVICE LEVEL
PARAMETERS
|
Licensee Owned Hardware failure:
In the event of a failure is related
to the Licensee owned Hardware, Primal must determine the cause of the
failure. If the cause of failure is due to a failure of Licensee
Owned Hardware, Primal will contact Licensee’s technical service representatives
on behalf of Licensee and will allow access to the Hosted Environment within the
Target Turn Around as set forth above. Primal will not attempt to repair
Licensee owned hardware.
Initial Response: Within the
designated Initial Response period, a Primal CSA will notify Licensee of Trouble
Report. As part of the Initial Response, the Primal CSA shall advise
Licensee of potential remedies, discuss and mutually agree on the Priority
level, and initiate actions to address the Service Request.
Turn-Around: Within
the designated Turn-Around period, Primal shall notify Licensee of the intended
action for a temporary fix or work around. If the resolution for the
Turn-Around requires a temporary fix or workaround, Primal shall provide the
workaround within the Turn-around period. In addition, within the
designated Turn-Around Time or as soon as practical thereafter, Primal shall
advise Licensee of the intended actions for a Permanent Fix.
Permanent
Fix: Within the designated Permanent Fix period, Primal will
provide the solution that corrects the condition that was the cause of the
Service Request. If the Permanent Fix requires a change to Licensee’s procedures
or environmental change (hardware, network interface, OS or third party
software), Primal shall advise Licensee of the steps to be taken to implement
the Permanent Fix.
|
5.
|
[***]
|
[***]
Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.
3 -
9
4. TERM. The
Hosting Period shall commence on January 1, 2005, and continue for one (1) year
thereafter, provided that Licensee shall have the right to terminate the Hosting
Period, upon at least ninety (90) days written notice to Primal, provided
further that no such termination shall be effective prior to December 31,
2005. The Hosting Period shall automatically renew for an additional
one (1) year terms, subject to price increase pursuant to Section 2.d, unless
Licensee notifies Primal, at least ninety (90) days prior to the end of the
then-current term, that it does not wish to renew the Hosting
Period. Subsequent to December 31, 2005, Licensee shall have the
right to terminate the Hosting Period at any time upon ninety (90) days written
notice to Primal.
IN WITNESS WHEREOF, the parties hereto
have executed this Schedule effective as of January 1, 2005.
|
Primal
Solutions, Inc.
|
Licensee: Time Warner Cable Information
Services (Maine), LLC
By: Time
Warner Entertainment Company, LP.,
Sole
Member, through its Time Warner Cable Division
|
|||
|
By:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
By:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
Signature
|
Signature
|
|||
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇
|
|
|
Print
or Type Name
|
Print
or Type Name
|
|||
|
Title:
|
President
& CEO
|
Title:
|
Senior
Vice President
|
|
|
Date:
|
12-16-04
|
Date:
|
12-16-04
|
|
3 -
10
THIRD
Amendment
to
Master
Software License Agreement
This Third Amendment to Master Software
License Agreement (“Amendment”) is made effective as of July 27, 2006 (the
“Effective Date”), by and between Time Warner Cable Inc., a Delaware corporation
(“TWC”), and Primal Solutions, Inc., a Delaware corporation
(“Primal”).
Recitals
A. TWC
(as assignee of Time Warner Cable Information Services (Maine), LLC) and Primal
are parties to that certain Master Software License Agreement, dated December
11, 2002 (as amended, the “Agreement”), which sets forth the terms and
conditions pursuant to which Primal licenses certain software (the “Primal
Software”) to TWC and performs related services (the “Primal
Services”).
B. Primal
and TWC desire to amend the Agreement to permit TWC to use the Primal Software
and the Primal Services for a transitional period of time (the “Transition
Services”) for and on behalf of Comcast Corporation and its affiliates
(“Comcast”) with respect to certain TWC cable television systems that may be
acquired by Comcast from TWC pursuant to certain pending transactions between
TWC and Comcast (the “Comcast Transactions”).
C. Capitalized
terms not otherwise defined in this Amendment have the meanings given in the
Agreement.
Agreement
In consideration of the foregoing and
the mutual covenants and agreements set forth below, the parties hereby agree,
and the Agreement is hereby amended, as follows:
1. Provision of Transition
Services to Comcast. Notwithstanding anything to the contrary
in the Agreement, including Sections 1.1 and 1.2 of the Agreement, Primal hereby
consents to TWC using the Primal Software and the Primal Services to provide
Transition Services to Comcast and its subscribers with respect to any TWC cable
television systems transferred by TWC to Comcast pursuant to the Comcast
Transactions. TWC may provide the Transition Services to Comcast
until the earlier of (i) the expiration or termination of this Agreement and
(ii) December 31, 2007. TWC agrees to include such Comcast
subscribers in TWC’s Subscriber Count (as defined in Schedule 2 of the Amended
Agreement) and is responsible for payment of related license fees to Primal
according to the terms of the Master Software License Agreement, as
amended.
4 -
1
2. No Other
Amendments. The Agreement shall remain in full force and
effect without change, except as specifically set forth in this
Amendment.
3. Counterparts. This
Amendment may be executed in more than one counterpart, each of which shall be
deemed to be an original and all of which together shall be deemed a single
document. Signatures delivered by facsimile shall have the same force
and effect as original signatures.
[SIGNATURE
PAGE FOLLOWS]
4 -
2
The
parties have executed this Amendment as of the Effective Date.
| TIME WARNER CABLE INC. | |||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
|
||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: | Sr. Vice President | ||
| PRIMAL SOLUTIONS, INC. | |||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| Title: | CEO and Chairman | ||
4 -
3
FOURTH
AMENDMENT
Dated as
of January 1,
2006
to
the
Master
Software License Agreement (the “Agreement”) dated as of December 11, 2002
by and
between
Primal
Solutions, Inc. as Licensor (“Primal”) and
Time
Warner Cable Information Services (Maine), LLC (“TWCIS”),
as
amended pursuant to Amendment 1 dated as of January 1, 2004
by and
between Primal and TWCIS,
as
amended pursuant to Amendment 2 dated as of January 1, 2005
by and
between Primal and TWCIS,
and as
amended pursuant to the Third Amendment dated as of July 27, 2006
by and
between Primal and Time Warner Cable Inc., as assignee of TWCIS.
Effective
as of date first set forth above, the Agreement is amended as
follows:
|
1.
|
Section
16.14 of the Agreement is hereby deleted in its entirety and replaced with
the following:
|
16.14
Affiliates. For purposes of this Agreement, Licensee’s “Affiliates”
shall mean any entity controlled by, under common control with, or controlling
(a) Licensee or (b) Advance/▇▇▇▇▇▇▇▇ Partnership, and Primal’s “Affiliates”
shall mean any entity controlled by, under common control with, or controlling
Primal. Licensee’s Affiliates shall have the right to purchase
Software, pursuant to a Schedule under this Agreement, under the same terms and
conditions as does Licensee.
|
2.
|
Section
2.1 (but not Table 2.1) of Schedule 2 to the Agreement is deleted in its
entirety and replaced with the
following:
|
“2.1 Monthly Use License
Fees
Licensee
shall pay the Monthly Use License Fee as set forth in Table 2.1 below in
accordance with this Section 2.1.
Primal
will be allowed to perform remote log review on a monthly basis to determine
appropriate Monthly Use License Fee, solely pursuant to Section 3.2 of the
Agreement
Such
Monthly Use License Fee will be determined by multiplying the aggregate number
of actual subscriber accounts registered in the [***] (hereafter, the
“Subscriber Count”), time the price per Subscriber set forth in Table 2.1
below.
[***]
Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.
Primal
TWC 4th
Amendment to MSLA
January 1,
2006 Initials ____________
5 -
1
Each
calendar month, on the first calendar day of the month, Primal shall determine
Subscriber Count by performing a log review. Primal shall provide
invoice by email and fax Licensee’s designated representative of the Subscriber
Count and Monthly Use License Fee not less than 7 days after the first calendar
day of each month.”
|
3.
|
Primal
acknowledges that Time Warner Cable Inc. has assigned the Agreement to its
subsidiary Time Warner Cable LLC.
|
IN
WITNESS WHEREOF, the parties hereto have executed this Fourth Amendment as of
the date written above.
|
Primal
Solutions, Inc.
|
Time
Warner Cable LLC
|
||||
|
By:
|
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
By:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Signature
|
Signature
|
||||
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇
|
||
|
Print
or Type Name
|
Print
or Type Name
|
||||
|
Title:
|
President
& CEO
|
Title:
|
Sr.
Vice President
|
||
Primal
TWC 4th
Amendment to MSLA
January 1,
2006 Initials ____________
5
- 2