EXHIBIT 10.8
MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT
THIS SOFTWARE LICENSE AND SERVICES AGREEMENT (this "Agreement") is effective as
of this 30th day of May, 1997, ("Effective Date") by and between MetaSolv
Software, Inc. ("MetaSolv"), a Delaware corporation with principal offices at
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and Qwest Communications
Corporation with principal offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
The terms of this Agreement shall apply to each Software license granted and to
all services provided by MetaSolv under this Agreement. When completed and
executed by both parties, an Order, as described below, shall evidence the
Software licenses granted and the services to be provided by MetaSolv under this
Agreement.
For the purposes of this Agreement, the defined terms set forth herein shall
apply to the respective capitalized terms and their respective singular, plural
and verb forms.
1. Definitions
a) The term "Agreement" includes this Master Software License and
Services Agreement, and any Orders accepted by MetaSolv which
reference it.
b) The term "Software" shall mean the software and related documentation
owned or distributed by MetaSolv for which Customer is granted a
license under this Agreement, the user guides and manuals for use of
the Software, and updates.
c) The term "Order" shall mean a written order for MetaSolv products or
services signed by Customer, accepted by MetaSolv, and referencing
this Agreement. Customer agrees to include a reference to this
Agreement, by Agreement number, in all of its orders submitted for
MetaSolv products or services.
d) The term "Designated System" shall mean the computer hardware and
operating system designated on the relevant Order.
e) Unless otherwise specified in the Order, "User" shall mean an
individual who is authorized by Customer to use the Software on the
Designated System.
2. Software License
a) Rights Granted. MetaSolv grants to Customer a nonexclusive license to
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use the Software Customer obtains under this Agreement as follows:
i) Customer shall use the Software solely for its own internal data
processing operations on the Designated System or on a backup
system if the Designated System is inoperative, up to any
applicable maximum number of designated Users (if any User
limitations apply), or other limitation specified on the Order.
Customer may not use the Software for third-party training,
commercial timesharing, rental or service bureau use.
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ii) Customer may make up to two archival copies of the Software, for
backup or disaster recovery purposes only, which will include
MetaSolv's copyright, trademark and proprietary notices. Customer
may use the archival copy in a backup or disaster recovery
situation as if it were the original, in accordance with the
licensing rights and restrictions of this Agreement.
b) Verification.
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i) At MetaSolv's written request, not more frequently than annually,
Customer shall furnish MetaSolv with a signed certification
verifying that the Software is being used pursuant to the
provisions of this Agreement, including any User and other
limitations, and listing the locations, types and serial numbers
of the systems on which the Software is run.
ii) MetaSolv may, at its expense, audit Customer's use of the
Software. Any such audit shall be conducted during regular
business hours at Customer's facilities and shall not
unreasonably interfere with Customer's business activities. If an
audit reveals that Customer has underpaid fees to MetaSolv,
Customer shall be invoiced for such underpaid fees based on the
current list price in effect at the time the audit is completed.
If the shortfall exceeds 5% of the license fees that the Customer
should have paid, Customer shall also pay MetaSolv reasonable
costs of conducting the audit. Audits shall be conducted not more
than once annually.
c) Ownership Rights. Title and ownership rights to Software, in its
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original form and any modified version, shall remain with MetaSolv and
its applicable licensors. Where modification of any licensed Software
is expressly permitted by written communication from MetaSolv, title
and ownership rights to non-MetaSolv material that Customer
incorporates into a modified or derivative version of the Software
shall remain with Customer or Customer's third-party licensor. This
paragraph does not authorize modification of the Software.
d) Rights in Data. MetaSolv may use any suggestions and improvements
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(other than those that qualify as "Proprietary Information") that
Customer happens to furnish to it in connection with this Agreement,
and Customer grants MetaSolv an unrestricted, irrevocable and royalty-
free license, without warranty of any kind, to include them in
MetaSolv's product or service offerings. Customer shall retain any
ownership of such suggestions and improvements, with an unrestricted
right to use in any manner Customer's ideas, designs, concepts,
inventions, techniques, discoveries or improvements.
e) Patent and Copyright Indemnification. MetaSolv indemnifies Customer
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from any action brought against Customer to the extent that it is
based on a claim that the Software infringes any duly issued patent or
any copyright in the United States or Canada. MetaSolv's indemnity
obligations shall not extend to (i) infringement arising out of
unauthorized use of the Software, (ii) a non-MetaSolv modification of
the Software after delivery by MetaSolv, (iii) the combination,
operation, or use of the Software with non-MetaSolv programs or data
if such infringement would have been avoided by the combination,
operation or use of the Software with other programs or data. MetaSolv
shall pay all damages and costs attributable to an action and finally
awarded against Customer, provided that: MetaSolv is promptly informed
in writing of each such claim, suit or proceeding; Customer shall
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permit MetaSolv to control the defense in settlement thereof; and
Customer shall cooperate in the defense and settlement thereof.
Customer shall furnish a copy of each communication, notice or other
action relating to the alleged infringement and shall provide MetaSolv
authority, information and assistance (at MetaSolv's expense)
necessary to defend or settle such claim. If the Software becomes, or,
in MetaSolv's opinion is likely to become, the subject of a claim of
infringement subject to this indemnity, then MetaSolv may, at its
option (i) procure for Customer the right to use that Software free of
any liability for infringement, (ii) replace the Software with a non-
infringing substitute complying substantially with all the
requirements of this Agreement, or (iii) refund the license fee
previously paid for the infringing Software, less a charge for the
value of Customer's prior use of the Software based upon a five (5)
year depreciation schedule, and accept return of the infringing
Software. THE FOREGOING INDEMNITY OBLIGATIONS CONSTITUTE METASOLV'S
SOLE LIABILITY AND CUSTOMER'S SOLE REMEDY FOR INFRINGEMENT OF PATENTS
AND COPYRIGHTS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
3. Restriction of License
a) Except as otherwise specifically authorized by this Agreement:
i) Customer shall not copy, modify, sublicense, distribute,
transfer, reverse engineer or reverse compile the Software, nor
shall Customer prepare derivative works incorporating the
Software.
ii) Neither Customer nor its personnel having had access to the
Software or documentation may use it to design software with
similar or competitive functionality for distribution to third
parties, nor to distribute or deliver educational courses or
materials based on the Software or documentation to persons other
than to Customer or contractors, and then only for the purpose of
providing Software-related services to Customer.
4. License Fees & Payment
a) All fees and payments are to be made in U.S. dollars. License fees and
payment terms are determined on the Order submitted by Customer and
accepted by MetaSolv. Each Order submitted shall be subject to
applicable license fees. A finance charge of 1.5% per month (but in no
event more than the maximum allowed by law) shall be assessed on all
past-due amounts. Customer shall pay taxes arising out of Customer's
purchase and use of Software under this Agreement, which do not
include taxes based on MetaSolv's income.
5. Services
a) MetaSolv shall provide installation support and user training and
other services, only as specified on the Order. All travel expenses
incurred by MetaSolv as a result of such services shall be paid by
Customer.
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6. Maintenance
a) Initial Maintenance Period. For the Initial Maintenance Period
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specified on the Order, MetaSolv shall provide Standard Maintenance
Support for the Software at no additional charge.
b) Standard Maintenance Support. After the Initial Maintenance Period,
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for as long as MetaSolv generally offers Standard Maintenance Support
for the Software to end-user licensees, Customer will automatically
receive Standard Maintenance Support in successive 12-month periods
based on MetaSolv's then current Standard Maintenance Support program.
Fees for Standard Maintenance Support are payable at the beginning of
each renewal maintenance period. Standard Maintenance Support
includes:
i) One (1) copy of standard maintenance releases as generally issued
to end-user licensees under MetaSolv's Maintenance Support
program for the correction of known errors, plus improvements,
modifications and enhancements that MetaSolv incorporates into
the Software and does not market as a separate product.
ii) MetaSolv's standard telephone customer service "hot-line" support
for reporting Software errors. MetaSolv will make reasonable
timely efforts to correct errors in the Software reported in this
way. Maintenance Support at any time covers only the current
release of the Software, plus the most recent prior release for
up to six months after release of the current Software. Error
correction applies only to Software used as authorized by this
Agreement and applicable documentation, and not to Software
modified by Customer.
c) Customer will designate in writing one primary Customer employee, and
two back-up employees, as its single point of contact for MetaSolv's
delivery of Standard Maintenance Support for the Software. Standard
Maintenance Support communications and deliveries between Customer and
MetaSolv shall be through the single point of contact. Customer shall
be responsible for copying, distributing and otherwise disseminating
such Standard Maintenance Support from the single point of contact
throughout Customer. Customer may change its single point of contact
upon reasonable written notice to MetaSolv.
7. Term & Termination of Agreement
a) If not otherwise specified on the Order, each Software license granted
under this Agreement shall remain in effect perpetually unless the
license or this Agreement is terminated in accordance with the
following:
i) For Cause. MetaSolv or Customer may terminate this Agreement and
any license under it at any time if, after thirty (30) days'
written notice, the other fails to correct a material breach of
this Agreement. If such a termination occurs, then in addition to
any other rights and remedies, Customer's rights to the Software
shall end, and within thirty (30) days following termination,
Customer shall either return to MetaSolv all copies of the
Software, or destroy all copies of the Software and provide to
MetaSolv written certification of this destruction.
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ii) For Convenience. Customer may terminate any license under this
Agreement for convenience at any time by delivery of written
notice and either the return of all Software copies to MetaSolv,
or their destruction with written certification of destruction
delivered to MetaSolv.
8. Confidentiality
a) While this Agreement and related licenses are in effect, MetaSolv and
Customer may disclose their proprietary and confidential information
("Proprietary Information") to each other. Each party shall clearly
▇▇▇▇ such information as "Proprietary", "Confidential", or by similar
label. For example, the Software licensed to Customer includes
Proprietary Information of MetaSolv. Customer and MetaSolv each shall
hold the others' Proprietary Information in confidence, with the same
degree of care that they apply to their own Proprietary Information of
like importance, and never less than reasonable care. Neither party
has any confidentiality obligation to the other under this Agreement
for any information to the extent that it can show that the
information: (i) is previously known by it without obligation of
confidence, or without breach of this Agreement, (ii) is publicly
disclosed through no wrongful act of the disclosure, (iii) is received
from a third party without obligation of confidence and without breach
of this Agreement, (iv) is independently developed by the disclosing
party without access to the other's Proprietary Information, or (v) is
approved for release by written authorization of the owner. The
foregoing confidentiality obligation shall survive the termination of
this Agreement.
9. Warranty & Liability
a) MetaSolv warrants that it has the right to grant the licenses provided
by this Agreement.
b) MetaSolv further warrants that during any Maintenance Support period,
the Software shall perform the functions described in the
documentation accompanying it, if properly used in accordance with the
documentation's instructions and specifications.
c) MetaSolv further warrants that services shall be performed in a
professional manner in accordance with standards and practices
generally observed in the industry for similar products and services.
d) During any Maintenance Period, if the warranty is breached, MetaSolv
shall take action to repair or replace defective Software, in
accordance with its Maintenance Support obligations. For services,
MetaSolv will reperform defective services, upon written notice from
Customer received not more than thirty (30) days after the defective
service was performed.
e) METASOLV MAKES NO OTHER WARRANTY FOR ANY PRODUCTS OR SERVICES UNDER
THIS AGREEMENT. THE WARRANTIES ABOVE ARE INSTEAD OF ALL OTHER
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED
TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, AND ANY OTHER WARRANTY OBLIGATION ON THE PART OF
METASOLV OR ITS LICENSORS. FURTHERMORE, THE STATED REMEDIES FOR BREACH
OF WARRANTY ARE EXCLUSIVE, AND METASOLV PROVIDES NO OTHERS.
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f) Except as otherwise provided for patent and copyright infringement
indemnities above, MetaSolv's maximum liability to Customer, and
Customer's remedy for any cause whatsoever, will be limited to the
recovery of actual damages up to any amounts paid by Customer with
respect to the applicable Order. METASOLV WILL NOT BE LIABLE FOR
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOSS OF
DATA, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Arbitration of Disputes
a) Any dispute arising under this Agreement, shall be submitted to
binding arbitration, to the American Arbitration Association ("AAA")
in Dallas, Texas according to the rules and procedures of the AAA for
commercial arbitration. Unless the parties agree otherwise, there
shall be a single arbitrator selected by agreement among the parties
or, if they cannot agree, designated by the AAA. It shall be the
determination of the arbitrator as to which of the parties shall be
responsible for any attorneys' fees and costs incurred by each party
as a result of the Arbitration. The award of the arbitrator shall be
final and binding upon the parties and may be confirmed by any court
having jurisdiction over the parties and the controversy.
11. General
a) This Agreement may be assigned by Customer, but only to a controlling
parent corporation, a controlled subsidiary corporation, or affiliate
corporation under common control with Customer, in any event with
written notice by Customer to MetaSolv, and Customer's written
guarantee of the Assignee's performance.
b) Neither party shall be liable for failure to perform any material
obligation under this Agreement, if the failure is due to an event
beyond its reasonable control.
c) Each party shall comply with all applicable export control laws and
regulations concerning the Software, including but not limited to the
securing of export licenses and execution of letters of assurance as
required under such laws or regulations.
d) All notices and other communications required or permitted to be given
under this Agreement shall be in writing, by certified mail or courier
service, to the addresses given on the first page of this Agreement,
unless by such notice a different address shall have been designated,
and shall be considered effective when deposited in the U.S. mail,
postage prepaid, and addressed to the appropriate party at the address
noted above.
e) This Agreement is the entire, exclusive set of terms and conditions
for any transactions entered into under it, and may be modified only
by a written instrument duly signed by authorized representatives of
both parties. This Agreement is governed by the laws of the State of
Texas.
f) In the event either party at any time terminates this Agreement as
stipulated in Paragraphs 2(c), 2(d), 3, 8, 9(e), 9(f), 10, and 11, in
their entirety, shall survive the life of this Agreement.
g) Termination of this Agreement or any license shall not relieve
Customer's obligation to pay all fees
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that have accrued or are otherwise owed by Customer under any Order or
other similar ordering document under this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective duly authorized representatives as set forth below:
MetaSolv Software, Inc. Qwest Communications Corporation
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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(Signature) (Signature)
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Typed or Printed Name
CEO SVP
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CEO Title
6/5/97 6/3/97
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Date Date
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