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EXHIBIT 10.17
MASTER SOFTWARE LICENSE AGREEMENT
BETWEEN
ELECTRONIC DATA SYSTEMS CORPORATION
AND
ADVANCED SYSTEMS INTERNATIONAL
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TABLE OF CONTENTS
FOR
MASTER SOFTWARE LICENSE AGREEMENT
ARTICLE I. AGREEMENT, TERM, AND DEFINITIONS
1.1 Agreement and Term........................................................1
1.2 Certain Definitions.......................................................1
ARTICLE II. PURCHASE ORDERS
2.1 Preparation of Purchase Orders............................................2
2.2 Issuance and Acceptance of Purchase Orders................................2
2.3 Purchase Order Alterations................................................2
2.4 Evaluation Purchase Orders................................................3
2.5 Cancellation of Purchase Orders...........................................3
ARTICLE III. PROVISION OF LICENSED SOFTWARE AND SERVICES
3.1 General...................................................................3
3.2 Transportation of Licensed Software.......................................3
3.3 Risk of Loss..............................................................3
3.4 Installation of Licensed Software.........................................3
3.5 Right to Cancel for Delays................................................4
3.6 Time and Materials Services...............................................4
3.7 Resale of Products by EDS.................................................5
3.8 Services in General ......................................................5
3.9 Further Acts..............................................................7
3.10 Time of Performance.......................................................7
3.11 EDS Business Practices....................................................7
ARTICLE IV. PROVISION OF LICENSED SOFTWARE
4.1 Acceptance of Licensed Software...........................................7
4.2 Grant of License..........................................................7
4.3 Transfer of Licensed Software.............................................8
4.4 Ownership of Licensed Software and Modifications..........................9
4.5 Proprietary Markings......................................................9
4.6 Duplication of Documentation..............................................9
4.7 Non-Disclosure............................................................9
4.8 Licensed Software Support Services........................................9
4.9 Licensed Software Support Services Options ...............................10
4.1 Provision of Source Code..................................................11
4.11 Acquisition of Third Party Software.......................................12
4.12 Software from an Authorized Third Party...................................12
ARTICLE V. WARRANTIES, INDEMNITIES, AND LIABILITIES
5.1 Warranty..................................................................12
5.2 Proprietary Rights Indemnification........................................13
5.3 Cross Indemnification.....................................................13
5.4 Limitation of Liability...................................................13
5.5 Insurance.................................................................14
5.6 Survival of Article V.....................................................14
ARTICLE VI. PAYMENTS TO SUPPLIER
6.1 Charges, Prices, and Fees for Licensed Software and Services..............14
6.2 Modifications to Charges..................................................15
6.3 Auto Payment..............................................................15
6.4 Payment Through Invoicing.................................................16
6.5 Taxes.....................................................................16
ARTICLE VII. TERMINATION
7.1 Termination for Cause.....................................................17
7.2 Termination for Insolvency or Bankruptcy..................................17
7.3 Termination for Non-Payment...............................................17
7.4 Termination of Software License...........................................17
7.5 Rights Upon Termination...................................................17
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ARTICLE VIII. MISCELLANEOUS
8.1 Binding Nature, Assignment, and Subcontracting............................18
8.2 Counterparts..............................................................18
8.3 Headings..................................................................18
8.4 Authorized Agency.........................................................18
8.5 Relationship of Parties...................................................19
8.6 Confidentiality...........................................................19
8.7 Media Releases............................................................19
8.8 Dispute Resolution........................................................20
8.9 Electronic Communications.................................................20
8.10 Proposals and Special Projects............................................20
8.11 Governmental Customers....................................................20
8.12 International Business....................................................20
8.13 Compliance with Laws......................................................20
8.14 Labor.....................................................................21
8.15 Export....................................................................21
8.16 Notices...................................................................21
8.17 Force Majeure.............................................................21
8.18 Severability..............................................................22
8.19 Waiver....................................................................22
8.20 Remedies..................................................................22
8.21 Survival of Terms.........................................................22
8.22 Nonexclusive Market and Purchase Rights...................................22
8.23 No Hire...................................................................22
8.24 GOVERNING LAW.............................................................24
8.25 Entire Agreement..........................................................24
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LIST OF EXHIBITS
EXHIBIT A
EDS BUSINESS PRACTICES
EXHIBIT B
CHARGES, PRICES, AND FEES
EXHIBIT C
THIRD PARTY SYSTEM ACCESS AGREEMENT
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MASTER SOFTWARE LICENSE AGREEMENT
THIS MASTER SOFTWARE LICENSE AGREEMENT (the "Agreement"), dated
November 13, 1998 (the "Effective Date"), is between ADVANCED SYSTEMS
INTERNATIONAL, a Nevada corporation ("ASI"), and ELECTRONIC DATA SYSTEMS
CORPORATION, a Delaware corporation ("EDS").
W I T N E S S E T H:
WHEREAS, EDS desires to have the right to license computer software
programs and to obtain services from ASI from time to time; and
WHEREAS, ASI is willing to provide computer software programs and
services to EDS in accordance with the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, inconsideration of the premises, and other good and
valuable consideration received and to be received, ASI and EDS agree as
follows:
ARTICLE I. AGREEMENT, TERM, AND DEFINITIONS
1.1 Agreement and Term. The parties agree that the terms and conditions of
this Agreement apply to the provision of computer software programs and
services to EDS by ASI. The term of this Agreement commences on the
Effective Date and the Agreement shall continue to be in effect until
terminated by either party as set forth in this Agreement.
1.2 Certain Definitions. The following definitions apply to this Agreement:
(a) "Applicable Specifications" means the functional, performance,
operational, compatibility, and other specifications or
characteristics of a Product described in applicable Documentation
and such other specifications or characteristics of a Product
agreed upon in writing by the parties.
(b) "Documentation" means user guides, operating manuals, education
materials, product descriptions and specifications, technical
manuals, supporting materials, and other information relating to
the Products or used in conjunction with the Services, whether
distributed in print, magnetic, electronic, or video format, in
effect as of the date (i) a Product is shipped to or is accepted
by EDS, as applicable, or (ii) the Service is provided to EDS.
(c) "Employee" means those employees, agents, subcontractors,
consultants, and representatives of ASI provided or to be provided
by ASI to perform Services pursuant to this Agreement.
(d) "Licensed Software" means computer programs in object code
(including micro code) and/or source code, as applicable, provided
or to be provided by ASI pursuant to this Agreement. The
definition of Licensed Software also includes any enhancements,
translations, modifications, updates, releases, or other changes
to Licensed Software which are provided or to be provided as part
of ASI's performance of warranty Service obligations or pre-paid
support Services pursuant to this Agreement.
(e) "Products" means, individually or collectively as appropriate,
Licensed Software, Documentation, and Work Products (as later
defined in this Agreement), provided or to be provided by ASI
pursuant to this Agreement.
(f) "Services" includes, but is not limited to, installation,
education, acceptance testing, support, development, warranty, and
time and
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materials services, provided or to be provided by ASI pursuant to
this Agreement.
(g) "Site" means geographically contiguous buildings, each of which,
in whole or in part, is occupied or accessed by EDS or a customer
of EDS. "Geographically contiguous" means adjacent tracts or
parcels of real property separated, if at all, only by publicly
dedicated rights of way or private easements.
(h) "Warranty Period" means the period specified in Section 5.1(e) of
this Agreement during which ASI is obligated to perform its
warranty obligations.
ARTICLE II. PURCHASE ORDERS
2.1 Preparation of Purchase Orders. ASI agrees that computer software
programs and services which ASI generally makes available to other
customers shall be made available to EDS under the terms and conditions
of this Agreement. EDS may request information about computer software
programs and services in order to prepare purchase orders and ASI shall
promptly provide to EDS, at no charge, sufficiently detailed
information which is reasonably responsive to EDS' request. From time
to time and/or at EDS' request, ASI shall provide written information
to EDS about computer software programs and services, and new releases,
versions or options related thereto, available or to be available from
ASI.
2.2 Issuance and Acceptance of Purchase Orders. References in this Section
to purchase orders also apply to alterations to Purchase Orders (as
later defined in this Section). The following governs the issuance and
acceptance of purchase orders under this Agreement:
(a) EDS may issue to ASI written purchase orders identifying the
Licensed Software and Services EDS desires to obtain from ASI.
Each purchase order may include other terms and conditions
applicable to the Licensed Software and Services ordered; such
other terms shall be consistent with the terms and conditions of
this Agreement, or shall be necessary to place a purchase order,
such as billing and shipping information, required delivery dates,
installation locations, and Charges (as later defined in this
Agreement).
(b) ASI shall promptly accept purchase orders by providing to EDS a
written or an oral acceptance of such purchase order, or by
commencing performance pursuant to such purchase order. ASI shall
accept purchase orders which do not establish new or conflicting
terms and conditions from those set forth in this Agreement. ASI
shall also accept purchase orders incorporating terms and
conditions which have been separately agreed upon in writing by
the parties.
(c) ASI may reject a purchase order which does not meet the conditions
described in subsection (b) above by promptly providing to EDS a
written explanation of the reasons for such rejection. ASI shall
accept an alteration to the originally issued purchase order if
such alteration remedies the items set forth in ASI's written
rejection.
Purchase orders accepted in accordance with this Section are referred
to as "Purchase Orders." EDS shall have no responsibility or liability
for Licensed Software or Services provided without a Purchase Order.
2.3 Purchase Order Alterations. EDS may issue an alteration to a Purchase
Order in order to, without limitation, (i) change a location for
delivery, (ii) modify the quantity or type of Licensed Software and
Services to be delivered or performed, (iii) implement any change or
modification as required by or permitted in this Agreement, (iv)
correct typographical or
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clerical errors, or (v) order Licensed Software or Services which are
of superior quality, or are enhancements to or are new releases or new
options of the Licensed Software or Services set forth in the Purchase
Order.
2.4 Evaluation Purchase Orders. EDS may issue a purchase order to ASI for
Licensed Software evaluation by EDS at no charge for an evaluation
period agreed upon by the parties. ASI shall provide the Licensed
Software listed in the evaluation Purchase Order to EDS and shall pay
all related transportation and insurance costs. Such Licensed Software
shall be protected by EDS in accordance with the non-disclosure
requirements specified in this Agreement which are applicable to
Licensed Software. At the conclusion of the evaluation period, EDS
shall have the option to acquire such Licensed Software pursuant to
this Agreement or to return such Licensed Software to ASI at ASI's
expense without obligation to ASI. Licensed Software which ASI and EDS
agree to be the subject of beta testing by EDS shall be subject to a
separate agreement between the parties containing applicable beta test
terms and conditions.
2.5 Cancellation of Purchase Orders. Except as otherwise agreed upon by the
parties, EDS may cancel all or a portion of a Purchase Order relating
to Licensed Software, without charge or penalty at any time prior to
the very date of the affected Licensed Software. Purchase Orders,
portions thereof, for Services may be canceled as specified in the
applicable sections of this Agreement.
ARTICLE III. PROVISION OF LICENSED SOFTWARE AND SERVICES
3.1 General. EDS is entitled to obtain Licensed Software and Services for
the benefit of and use by affiliates of EDS. Such affiliates and their
respective employees are entitled to use the Licensed Software and
Services in accordance with this Agreement and have and are entitled to
all rights, benefits, and protections granted to EDS pursuant to this
Agreement with respect to such Licensed Software and Services. However,
an affiliate of EDS shall only be entitled to obtain Licensed Software
and Services directly from ASI pursuant to this Agreement if EDS so
provides written notice to ASI. EDS is responsible for compliance by
its affiliates with the terms and conditions set forth in this
Agreement. EDS and its affiliates have the right to transfer or
remarket the Licensed Software and Services to third parties.
3.2 Transportation of Licensed Software. ASI shall deliver Licensed
Software to EDS on the delivery date set forth in the applicable
Purchase Order or as otherwise agreed upon by the parties. Charges for
transportation of Licensed Software shall be paid by ASI. The method
and mode of all transportation shall be those selected by ASI.
3.3 Risk of Loss. All risk of loss of, or damage to, Licensed Software
shall be borne by ASI until receipt of delivery of such Licensed
Software by EDS. ASI agrees to be responsible for the Licensed Software
until receipt of delivery of such Licensed Software by EDS. If loss to
or damage of Licensed Software occurs prior to receipt of delivery by
EDS, ASI shall immediately provide a replacement item or, if Licensed
Software is not immediately replaceable, ASI shall give EDS highest
priority for the provision of replacement Licensed Software.
3.4 Installation of Licensed Software. If installation is set forth in the
governing Purchase Order or is included in the Charge for Licensed
Software, ASI shall install Licensed Software in good working order at
the designated location on or before the installation date set forth
in the applicable Purchase Order or as otherwise agreed upon by the
parties. Installation Services shall include performance of ASI's usual
and customary diagnostic tests to determine the operational status of
the Licensed Software. ASI shall inform EDS of any education Services
which are included with
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installation, and such education may be performed at a time mutually
agreed upon by ASI and EDS.
3.5 Right to Cancel for Delays. In the event of a delay in delivery of all
or any portion of Licensed Software listed on a Purchase Order or
Licensed Software listed on a series of Purchase Orders which relate to
a specific project or request for proposal (the Licensed Software
listed on such series of Purchase Orders referred to as "Related
Licensed Software"), or in the event of a delay in the performance of
Services which is not excused in this Agreement, EDS may cancel without
charge all or any portion of the Licensed Software, Related Licensed
Software or Services for which delivery or performance has been so
delayed. If, in EDS' reasonable opinion, the delivered Licensed
Software or Related Licensed Software are not operable without the
remaining undelivered Licensed Software or Related Licensed Software,
EDS may, at ASI's expense, return any delivered Licensed Software or
Related Licensed Software to ASI. EDS shall not be liable for any
expenses incurred by ASI for canceled, undelivered, or returned
Licensed Software or Related Licensed Software. EDS shall receive a
refund of all amounts paid to ASI with respect to the canceled and/or
returned Licensed Software and Related Licensed Software. EDS shall
receive a pro-rata refund of all amounts paid to ASI with respect to
canceled Services.
3.6 Time and Materials Services. If available from ASI, EDS may obtain on a
time and materials basis from ASI consulting, development and other
Services (excluding support Services which are provided pursuant to
other sections of this Agreement) agreed upon by the parties in
accordance with the terms and conditions set forth below.
(a) EDS may specify on a purchase order the names, required number and
skill levels of Employees to perform Services.
(b) If, during the first ten (10) working days following commencement
of performance of Services (the "Start Period"), EDS notifies ASI
that (i) an Employee's level of performance is unacceptable to
EDS, (ii) an Employee has failed to perform as required, or (iii)
an Employee, in EDS' reasonable opinion, lacks the skill,
knowledge or training to perform at the required level (the
"Deficiency"), then ASI shall have ten (10) working days from
receipt of such notice to correct the Deficiency so identified by
EDS (the "Correction Period").
(c) EDS may request the replacement of such Employee if, in EDS'
opinion, ASI fails to correct the Deficiency within the Correction
Period. Upon such request by EDS for replacement, ASI shall have
five (5) working days following the receipt of such a request to
provide a substitute Employee, if one is available to ASI, of
sufficient skill, knowledge, and training to perform the
applicable Services.
(d) EDS shall not pay for Services performed by an Employee replaced
under subsection (c) above and shall receive a refund for any
amounts previously paid for such Services provided that EDS'
notice to ASI identifying the Deficiency was given within the
Start Period.
(e) If EDS requests the replacement of an Employee at any time after
the Start Period, EDS shall pay for Services performed by such
Employee up to the date of EDS' request that such Employee be
replaced (the "Replacement Date"). If, pursuant to subsection (c)
above, ASI is unable to provide a replacement Employee, then EDS
shall receive a refund for any amounts previously paid for
Services performed by such Employee after the Replacement Date.
(f) ASI shall not replace, without EDS' consent, an Employee then
currently performing Services until the governing Purchase Order
expires or is terminated; however, ASI may replace, without EDS'
consent, an Employee for reasons relating to the Employee's
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termination with ASI, promotion, illness, death, or causes beyond
ASI's control.
(g) EDS shall reimburse ASI for reasonable expenses incurred by
Employees in the performance of Services (if requested by ASI in
advance and approved by EDS) which are related to travel, lodging,
and meals; such expenses shall be reimbursed in accordance with
EDS' guidelines for its own employees.
(h) ASI shall establish and shall retain, for a period of three (3)
years following the performance of time and materials Services,
records which adequately substantiate the applicability and
accuracy of Charges for such Services and related expenses to EDS.
Upon receipt of reasonable advance notice from EDS, ASI shall
produce such records for audit by EDS.
(i) Purchase Orders for Services provided or to be provided under this
Section may be canceled at any time without charge or penalty,
upon written notice to ASI.
3.7 Resale of Products by EDS. During the term of this Agreement, EDS may
market, promote, and resell Products, separately or in conjunction with
other products and services in accordance with the following terms and
conditions:
(a) ASI shall extend the same warranties and indemnifications, with
respect to Products remarketed by EDS hereunder, as ASI extends to
other end user customers.
(b) The term of agreements, warranties and indemnities extended by ASI
to an end user customer shall commence upon delivery of a Product
to such end user customer.
(c) ASI shall make available to such customers all training, technical
support and other services related to the Products that are
currently generally offered or that may be generally offered by
ASI to other end user customers.
(d) Upon request by EDS, ASI shall provide to EDS, at no charge, sales
training, marketing and technical support, and marketing materials
as may be reasonably required by EDS in connection with the resale
of Products.
(e) EDS may refer to itself as ASI's authorized dealer or reseller of
the Products and EDS shall be authorized and is hereby authorized
to use all trademarks and trade names of ASI or trademarks and
trade names of third parties used in connection with advertising
or promoting the Products; provided, however, that EDS shall
comply with written guidelines provided on a timely basis by ASI
to EDS from time to time relating to such use.
3.8 Services in General. In connection with the performance of any Services
pursuant to this Agreement:
(a) Unless a specific number of Employees is set forth in the
governing Purchase Order, ASI warrants it will provide sufficient
Employees to complete the Services ordered within the applicable
time frames established pursuant to this Agreement or as set forth
in such Purchase Order.
(b) ASI warrants that Employees shall have sufficient skill,
knowledge, and training to perform Services and that the Services
shall be performed in a professional and workmanlike manner.
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(c) Employees performing Services in the United States must be United
States citizens or lawfully admitted in the United States for
permanent residence or lawfully admitted in the United States
holding a visa authorizing the performance of Services on behalf
of ASI.
(d) ASI warrants that all Employees utilized by ASI in performing
Services are under a written obligation to ASI requiring Employee:
(i) to maintain the confidentiality of information of ASI's
customers, and (ii) if such Employee is not a full-time employee
whose work is considered a "work for hire" under Section 101 of
the United States Copyright Code, to assign all of Employee's
right, title, and interest to ASI in and to any Work Product which
is developed, prepared, conceived, made, or suggested by such
Employee while providing Services on behalf of ASI. For purposes
of this Agreement Work Product means (in any form including source
code) any and all ideas, processes, methods, programming aids,
formulas, manufacturing techniques, mask works, reports, programs,
manuals, tapes, card decks, listings, software, developed
products, flowcharts and systems and any improvements,
enhancements, or modifications to any of the foregoing, which are
developed, prepared, conceived, made, or suggested by any Employee
or by ASI as part of, in connection with, or in relationship to
the performance of Services (except in connection with ASI's
performance of warranty Service obligations or pre-paid support
Services) pursuant to this Agreement. Work Products also means all
such developments as are originated or conceived during the term
of this Agreement but are completed or reduced to practice
thereafter.
(e) ASI shall require Employees providing Services at an EDS location
to comply with applicable EDS security and safety regulations and
policies which will be provided verbally or written on a site
specific basis.
(f) ASI shall provide for and pay the compensation of Employees and
shall pay all taxes, contributions, and benefits (such as, but not
limited to, workers' compensation benefits) which an employer is
required to pay relating to the employment of employees. EDS shall
not be liable to ASI or to any Employee for ASI's failure to
perform its compensation, benefit, or tax obligations. ASI shall
indemnify, defend and hold EDS harmless from and against all such
taxes, contributions and benefits and will comply with all
associated governmental regulations, including the filing of all
necessary reports and returns.
(g) ASI shall allow EDS or its designated third party to conduct a
background investigation and drug screening ("Investigation") of
any Employee performing Services in the United States, Canada and
Mexico if EDS intends to provide the Employee with unescorted
access to an EDS location. In connection with such Investigation
EDS shall provide to ASI a standard form authorizing the
Investigation and ASI shall promptly request the completion of
such form by the Employee. The failure of an Employee to honor
this request shall not be deemed a breach of section 3.7 (g). Any
and all information obtained in connection with an Investigation
of any Employee or acquired or made known during such
Investigation shall be deemed confidential and shall not be
revealed to persons without a bona fide need to know. If, after
reviewing the results of an Investigation, EDS elects not to
accept an Employee for performance of Services under this
Agreement, ASI agrees to not utilize such Employee in the
performance of Services. EDS shall waive the Investigation for an
Employee if ASI provides EDS with written confirmation that: (i)
ASI has conducted a background and drug screening investigation of
such Employee with satisfactory results, or (ii) the Employee has
been employed with ASI for at least five (5) years in good
standing.
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(h) The parties agree that the ownership of any Work Product created
by or on behalf of ASI in its performance of time and material
Service shall be negotiated in good faith by the parties and
documented in a separate agreement supplemental to this Agreement.
Such separate agreement shall be signed prior to the commencement
of Services. In the event an agreement is not signed and ASI
commences performance of Services, then the parties agree that EDS
shall own any Work Product created by or on behalf of ASI in the
performance of such Services.
3.9 Further Acts. During and subsequent to the term of this Agreement, ASI
shall do, or cause to be done, all such further acts and shall execute,
acknowledge, and deliver, or cause to be executed, acknowledged, and
delivered, any and all further documentation or assignments as EDS may
reasonably require to evidence or perfect EDS' right to use, or
Ownership Rights in, as the case may be, Licensed Software or Work
Products.
3.10 Time of Performance. Time is expressly made of the essence with respect
to each and every term and provision of this Article.
3.11 EDS Business Practices. ASI shall comply with the EDS Business
Practices set forth in Exhibit A.
ARTICLE IV. PROVISION OF LICENSED SOFTWARE
4.1 Acceptance of Licensed Software. EDS shall accept delivered copy(ies)
of Licensed Software on the date (the "Acceptance Date") when all
necessary Documentation has been received and the Licensed Software
performs in accordance with and/or conforms to its Applicable
Specifications. In the event Licensed Software does not so perform, EDS
may (i) continue to test the Licensed Software with the assistance of
ASI, (ii) permit ASI to repair or replace the Licensed Software at no
additional expense to EDS, or (iii) return the Licensed Software and
Documentation to ASI, at ASI's expense and without liability to ASI,
and any amounts paid by EDS for the Licensed Software and Documentation
shall be refunded by ASI to EDS. Acceptance of Licensed Software does
not waive any warranty rights provided in this Agreement for the
Licensed Software.
4.2 Grant of License. For each item of Licensed Software received by EDS,
ASI grants EDS and EDS has a worldwide, nonexclusive, irrevocable,
perpetual license to use, execute, store, and display the object code
version of the Licensed Software, on behalf of EDS and customers of EDS
(a "License") in accordance with the type of License selected and in
accordance with the terms and conditions of this Agreement. A Purchase
Order shall designate the type of License which is selected; if a
Purchase Order fails to designate the type of License desired, then
such License shall be deemed to be a CPU Software License (as later
defined in this Section).
(a) A "CPU Software License" permits EDS to use the Licensed Software
on any single computer (which may include more than one central
processing unit) or item of equipment ("CPU") and to copy the
Licensed Software as necessary for archival, maintenance, disaster
recovery testing, or back-up purposes. If EDS desires to run
parallel operations in the process of conducting a disaster
recovery test or transferring operations from one CPU to another
CPU, EDS may operate the Licensed Software on two (2) CPUs for the
period of time reasonably necessary to complete the disaster
recovery test or transfer.
(b) A "Site Software License" permits EDS to use the Licensed Software
at the Site designated in the Purchase Order and to copy the
Licensed Software as necessary for dissemination at the Site and
for archival, maintenance, disaster recovery testing, or back-up
purposes.
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Notwithstanding the foregoing, the Licensed Software may be used
at other than the designated Site, if (i) the designated Site
cannot be used, (ii) the designated Site is replaced or changed by
EDS, or (iii) EDS provides ASI with prior written notice. If EDS
desires to run parallel operations in the process of conducting a
disaster recovery test or transferring operations from one Site to
another Site, EDS may operate the Licensed Software at two (2)
Sites for the period of time reasonably necessary to complete the
disaster recovery test or transfer.
(c) A "Network Software License" permits EDS to use the Licensed
Software on any single computer, file server, or item of equipment
which may be accessed by multiple, networked devices (collectively
hereinafter referred to as the "Network"). Portions of the
Licensed Software may be downloaded as appropriate for use by the
devices on the Network. If EDS desires to run parallel operations
in the process of conducting a disaster recovery test or
transferring operations from one Network to another Network, EDS
may operate the Licensed Software on two (2) Networks for the
period of time reasonably necessary to complete the disaster
recovery test or transfer.
(d) A "Corporate Software License" permits EDS to use the Licensed
Software at any EDS or EDS customer location and on any items of
equipment and to make and use unlimited copies of the Licensed
Software.
(e) Any License granted under this Agreement permits EDS to (i) use
Licensed Software for its corporate purposes including, but not
limited to, providing services to or processing data of
customers of EDS, providing remote access to the Licensed
Software, and performing disaster recovery, disaster testing, and
backup as EDS deems necessary, and (ii) use, copy and modify
Licensed Software and Documentation for the purpose of creating
and using training materials relating to the Licensed Software,
which training materials may include flow diagrams, system
operation schematics, or screen prints from operation of the
Licensed Software. Access to and use of the Licensed Software by
customers of EDS shall be considered authorized use under this
Section so long as such use is in conjunction with EDS' provision
of services to, or EDS' processing the data of, such customers,
and so long as any such customers are bound by obligations of
confidentiality.
The governing License also includes the right to use the source code
version of Licensed Software (i) in accordance with the terms and
conditions of such License if EDS requests source code in a Purchase
Order, and/or (ii) in accordance with the terms and conditions of the
Section of this Agreement titled "Provision of Source Code."
4.3 Transfer of Licensed Software. During the performance or upon
termination of a contract with an EDS customer or upon any transfer of
equipment incorporating Licensed Software to a third party (such
customers and third parties referred to as "Transferee"), (i) EDS may
sublicense the applicable Licensed Software to such Transferee pursuant
to terms and conditions similar to those contained in this Article
(excluding the right to sublicense), (ii) the applicable License
(excluding the right to sublicense) may be assigned to such Transferee,
or (iii) upon request by EDS, the Licensed Software will be licensed
directly by ASI to such Transferee in accordance with the terms and
conditions of ASI's standard software license agreement or as agreed
upon by ASI and Transferee. Any assignment or sublicensing of Licensed
Software in accordance with this Section shall be at no additional
charge to EDS or Transferee, and EDS shall have no further liability or
responsibility with respect to Licensed Software under (ii) or (iii)
above.
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4.4 Ownership of Licensed Software and Modifications. The Licensed Software
shall be and remain the property of ASI or third parties which have
granted ASI the right to license the Licensed Software and EDS shall
have no rights or interests therein except as set forth in this
Agreement. EDS shall be entitled to modify the Licensed Software and to
develop software derivative of or interfacing with the Licensed
Software. All modifications of and software derivative of the Licensed
Software developed by EDS shall be and remain the property of EDS, and
ASI and its Employees shall have no rights or interests therein. Except
in connection with ASI's Performance of warranty Service obligations
or pre-paid support Services, all modifications of and software
derivative of the Licensed Software developed at EDS' expense by ASI
and its Employees shall be considered Work Product and EDS shall have
rights in such Work Product as established in the Section titled
"Ownership of Intellectual Property Rights" elsewhere in this
Agreement.
4.5 Proprietary Markings. EDS shall not remove or destroy any proprietary
markings or proprietary legends placed upon or contained within the
Licensed Software.
4.6 Duplication of Documentation. EDS may duplicate Licensed Software
Documentation, at no additional charge, for EDS' use or for use by a
customer of EDS in connection with the provision of Licensed Software
so long as all required proprietary markings are retained on all
duplicated copies.
4.7 Non-Disclosure. During the term of a License, EDS will treat the
Licensed Software with the same degree of care and confidentiality
which EDS provides for similar information belonging to EDS which EDS
does not wish disclosed to the public, but not less than reasonable
care. This provision shall not apply to Licensed Software, or any
portion thereof, which is (i) already known by EDS without an
obligation of confidentiality, (ii) publicly known or becomes publicly
known through no unauthorized act of EDS, (iii) rightfully received
from a third party without obligation of confidentiality, (iv)
disclosed without similar restrictions by ASI to a third party, (v)
approved by ASI for disclosure, or (vi) required to be disclosed
pursuant to a requirement of a governmental agency or law so long as
EDS provides ASI with timely prior written notice of such requirement.
It will not be a violation of this Section if (A) EDS provides access
to and the use of the Licensed Software to third parties providing
services to EDS so long as EDS secures execution by such third parties
of a confidentiality agreement as would normally be required by EDS, or
(B) EDS independently develops software which is similar to Licensed
Software, so long as such independent development is substantiated by
written documentation.
4.8 Licensed Software Support Services. The support Services set forth
below for the Licensed Software shall be provided by ASI to EDS during
the Warranty Period at no charge to EDS. Thereafter, such support
Services shall be provided by ASI, upon EDS' request, for either a
fixed or open-ended term, at the applicable Charges set forth in
Exhibit B, upon the terms contained in the next Section. EDS may
discontinue such support Services at any time by providing thirty (30)
days' advance written notice to ASI. If such support Services were
provided by ASI for an open-ended term, EDS shall promptly receive a
refund of pre-paid support Charges which reflects the amount for
discontinued support Services after the effective date of the notice
(a) ASI shall promptly notify EDS of any defects, errors or
malfunctions ("Defects") in the Licensed Software or Documentation
of which ASI becomes aware from any source and shall promptly
provide to EDS modified versions of Licensed Software or
Documentation which incorporate corrections of any Defects
("Corrections"). ASI shall also provide to EDS all operational
and support assistance necessary to cause Licensed Software to
perform in accordance with its Applicable Specifications and
remedial support designed to provide a
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by-pass or temporary fix to a Defect until the Defect can be
permanently corrected. ASI shall use its best efforts to respond
to requests from EDS for Licensed Software support in a manner and
time frame which are reasonably responsive considering the nature
and severity of the Defect which gave rise to such request.
(b) ASI shall provide to EDS all upgrades, modifications,
improvements, enhancements, extensions, and other changes to
Licensed Software developed by ASI ("Improvements") and all
updates to the Licensed Software necessary to cause the Licensed
Software to operate under new versions or releases of the Licensed
Software's current operating system(s) ("Updates") which are
generally made available to other customers of ASI. EDS shall have
the option to implement any Improvement or Update and any failure
by EDS to so implement shall not affect EDS' right to continue to
receive support and maintenance Services.
(c) ASI shall provide toll-free telephone hot-line support between
8:00 a.m. and 5:00 p.m. at the applicable maintenance location. In
addition, ASI shall provide to EDS, at the request of EDS and at
ASI's then current established charges therefor, additional
telephone hot-line support for up to twenty-four (24) hours per
day, seven (7) days per week.
(d) ASI shall provide to EDS any revisions to the existing
Documentation developed for the Licensed Software or necessary to
reflect all Corrections, Improvements, or Updates.
(e) ASI shall make Licensed Software training available to persons
designated by EDS to the extent agreed upon by the parties.
(f) If the applicable Charge for Licensed Software is payable on a
periodic basis, and such Charge includes provision of support
Services, then if an Event of Default as described in the Section
of this Agreement titled "Provision of Source Code" occurs or an
event described in the Section of this Agreement titled
"Termination for Insolvency or Bankruptcy" occurs and if ASI fails
to provide the support Services described above, then EDS' Charge
for the affected Licensed Software shall be immediately reduced to
reflect such failure by subtracting that portion of the Charge
allocable to the provision of support Services.
4.9 Licensed Software Support Services Options. EDS may obtain the support
Services described in the previous Section for Licensed Software on a
central site support basis and/or on an individual site support basis.
In the absence of a designation of central or individual site support
in a Purchase Order, such support shall be deemed to be individual site
support. The Charges for each option shall be as set forth in Exhibit B
or as otherwise agreed upon by the parties. Where "central site
support" is requested, support Services shall be provided by ASI to and
shall be requested by EDS through a single point of contact identified
by EDS on a Purchase Order. To the extent necessitated by geographic
diversity or where required in order to support multiple time zones,
EDS may designate multiple central site support locations. With respect
to central site support, ASI shall provide to EDS one master disk and
one copy of all Documentation relating to each Correction, Improvement,
or Update. EDS shall be entitled to copy the disk and Documentation and
distribute the copies or electronically transmit the copied information
to each location supported by the central site. A designation of
central site support shall not prevent an individual user of Licensed
Software from contacting ASI in the event of an emergency. Where
"individual site support" is requested, support Services shall be
provided by ASI to the applicable licensed CPU, Site, or Network, or,
in the case of a Corporate Software License, to a licensed user.
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4.10 Provision of Source Code. EDS' ability to utilize adequately Licensed
Software will be seriously jeopardized if ASI fails to maintain or
support such Licensed Software unless complete Licensed Software source
code and related Documentation is made available to EDS for EDS' use
in satisfying EDS' maintenance and support requirements. Therefore, ASI
agrees that if an "Event of Default" occurs, then ASI will provide to
EDS one copy of the most current version of the source code for the
affected Licensed Software and associated Documentation in accordance
with the following:
(a) An Event of Default shall be deemed to have occurred if ASI: (i)
ceases to market or make available maintenance or support Services
for the Licensed Software during a period in which EDS is entitled
to receive or to purchase, or is receiving or purchasing, such
maintenance and support and ASI has not promptly cured such
failure despite EDS' demand that ASI make available or perform
such maintenance and support, (ii) becomes insolvent, executes an
assignment for the benefit of creditors, or becomes subject to
bankruptcy or receivership proceedings, (iii) ceases business
operations generally or (iv) has transferred all or substantially
all of its assets or obligations set forth in this Agreement to a
third party which has not assumed all of the obligations of ASI
set forth in this Agreement.
(b) ASI will promptly and continuously update and supplement the
source code as necessary with all revisions, Corrections,
enhancements, and other changes developed for the Licensed
Software and Documentation. Such source code shall be in a form
suitable for reproduction and use by computer and photocopy
equipment, and shall consist of a full source language statement
of the program or programs comprising the Licensed Software and
complete program maintenance Documentation which comprise the
pre-coding detail design specifications, and all other material
necessary to allow a reasonably skilled programmer or analyst
to maintain and enhance the Licensed Software without the
assistance of ASI or reference to any other materials.
(c) The governing License for the Licensed Software includes the right
to use source code received under this Section as necessary to
modify, maintain, and update the Licensed Software.
(d) Upon request by EDS, ASI will deposit in escrow with an escrow
agent acceptable to EDS and pursuant to a mutually acceptable
escrow agreement supplemental to this Agreement, a copy of the
source code which corresponds to the most current version of the
Licensed Software in use by EDS. EDS shall pay all fees of the
escrow agent for services provided. If ASI currently maintains or
enters into an escrow agreement for the Licensed Software source
code for the benefit of other customers of ASI, then ASI shall
provide to EDS a current copy of such escrow agreement within ten
(10) days of EDS' request and if such existing escrow agreement is
acceptable to EDS, ASI shall include EDS as a third party
beneficiary of such escrow agreement at no charge to EDS. In such
case, the existing escrow agreement shall be considered a
supplemental agreement to this Agreement. If such existing escrow
agreement is not acceptable to EDS, and EDS and ASI elect not to
enter into a separate escrow agreement, EDS and ASI shall enter
into an amendment to such existing escrow agreement which provides
mutually acceptable terms and conditions; at a minimum, such terms
and conditions shall allow EDS to conduct an audit of, or shall
require that the escrow agent conduct an audit of, the copy of
source code in escrow to ensure that such copy meets the
requirements established in this Section. ASI's entry into, or
failure to enter into, an agreement with an escrow agent or to
deposit the described materials in escrow shall not relieve ASI of
its obligations to EDS described in this Section.
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(e) If, as a result of an Event of Default, ASI fails to provide
required support Services, then any periodic license fee which EDS
is required to pay under this Agreement for Licensed Software
shall be reduced to reflect such lack of support Services. At such
time as ASI commences offering the support Services described in
this Agreement for Licensed Software, EDS may obtain such support
Services as provided for elsewhere in this Agreement.
4.11 Acquisition of Third Party Software. If EDS has acquired software
products from a third party and rights to such software products are
subsequently acquired by ASI (whether through purchase of the third
party in whole or in part, through purchase of the software products,
through acquisition of the rights to market the software, or through
any other means), then EDS shall have the option of (i) continuing to
use the software products under the original license agreement with
such third party at no additional charge to EDS other than applicable
fees identified in such license agreement, or (ii) using the software
products under the terms and conditions of this Agreement.
4.12 Software from an Authorized Third Party. If EDS acquires ASI's
software products from a value added reseller, dealer, distributor, or
other ASI authorized third party provider or if the Licensed Software
is embedded in software products acquired from a third party, ASI
agrees that, at EDS' option, such software products shall be deemed to
have been acquired under this Agreement.
ARTICLE V. WARRANTIES, INDEMNITIES, AND LIABILITIES
5.1 Warranty. ASI represents and warrants that:
(a) ASI has not and will not enter into agreements or commitments
which are inconsistent with or conflict with the rights granted to
EDS in this Agreement;
(b) The Products are and shall be free and clear of all liens and
encumbrances, and EDS shall be entitled to use the Products
without disturbance;
(c) No portion of the Products contain, at the time of delivery, any
"back door," "time bomb," "Trojan horse," "worm," "drop dead
device," "virus," or other computer software routines or hardware
components designed to (i) permit access or use of either the
Products or EDS' computer systems by ASI or a third party not
authorized by this Agreement, (ii) disable, damage or erase the
Products or data, or (iii) perform any other such actions;
(d) The Products and the design thereof shall not contain
preprogrammed preventative routines or similar devices which
prevent EDS from exercising the rights set forth in Article IV of
this Agreement or from utilizing the Products for the purpose for
which they were designed;
(e) Each Product and its media (i) shall be new and shall be free from
defects in manufacture, materials, and design, (ii) shall be
manufactured in a good and workmanlike manner using a skilled
staff fully qualified to perform their respective duties, and
(iii) shall function properly under ordinary use and operate in
conformance with its Applicable Specifications and Documentation
from the date of receipt until the date one (1) year from the
applicable Acceptance Date of such Product;
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(f) The Products are, and shall continue to be, data, program, and
upward compatible with any other Products available or to be
available from ASI so that data files created for a Product can be
utilized without adaptation with other Products and Products will
operate with other Products and will not result in the need for
alteration, emulation, or other loss of efficiency. ASI shall
provide to EDS at least ninety (90) days prior written notice to
discontinue any Product; and
(g) Neither the performance nor the functionality of the Products will
be affected by any changes to the date format or date calculations
within any part of the Product either before, during or after the
year 2000.
During the Warranty Period, ASI will provide warranty Service to EDS at
no additional cost and will include all Services or replacement
Products or Product media necessary to enable ASI to comply with the
warranties set forth in this Agreement. ASI shall pass through to EDS
any manufacturers' warranties which ASI receives on the Products and,
at EDS' request, ASI shall enforce such warranties on EDS' behalf. ASI
agrees that EDS shall be entitled to pass through to Product end users
any warranties received from ASI for such Products pursuant to this
Agreement.
5.2 Proprietary Rights Indemnification. ASI represents and warrants that
(i) at the time of delivery to EDS, no Product provided under this
Agreement is the subject of any litigation ("Litigation"), and (ii) ASI
has all right, title, ownership interest, and/or marketing rights
necessary to provide the Products to EDS and that each License, the
Products and their sale, license, and use hereunder do not and shall
not directly or indirectly violate or infringe upon any copyright,
patent, trade secret, or other proprietary or intellectual property
right of any third party or contribute to such violation or
infringement ("Infringement"). ASI shall indemnify and hold EDS and
Product end users and their respective successors, officers, directors,
employees, and agents harmless from and against any and all actions,
claims, losses, damages, liabilities, awards, costs, and expenses
(including legal fees) resulting from or arising out of any Litigation,
any breach or claimed breach of the foregoing warranties, or which is
based on a claim of an Infringement and ASI shall defend and settle, at
its expense, suits or proceedings arising therefrom. EDS shall inform
ASI of any such suit or proceeding against EDS and shall have the right
to participate in the defense of any such suit or proceeding at its
expense and through counsel of its choosing. ASI shall notify EDS of
any actions, claims, or suits against ASI based on an alleged
Infringement of any party's intellectual property rights in and to the
Products. In the event an injunction is sought or obtained against use
of the Products or in EDS' opinion is likely to be sought or obtained,
ASI shall promptly, at its option and expense, either (A) procure for
EDS and Product end users the right to continue to use the infringing
Product as set forth in this Agreement, or (B) replace or modify the
infringing Products to make its use non-infringing while being capable
of performing the same function without degradation of performance.
5.3 Cross Indemnification. In the event any act or omission of a party or
its employees, servants, agents, or representatives causes or results
in (i) damage to or destruction of property of the other party or third
parties, and/or (ii) death or injury to persons including, but not
limited to, employees or invitees of either party, then such party
shall indemnify, defend, and hold the other party harmless from and
against any and all claims, actions, damages, demands, liabilities,
costs, and expenses, including reasonable attorneys' fees and expenses,
resulting therefrom. The indemnifying party shall pay or reimburse the
other party promptly for all such damage, destruction, death, or
injury.
5.4 Limitation of Liability. Neither party shall be liable to the other
pursuant to this Agreement for any amounts representing loss of
profits, loss of business or indirect, consequential, exemplary, or
punitive damages
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of the other party. The foregoing shall not limit the indemnification,
defense and hold harmless obligations set forth in this Agreement.
5.5 Insurance. ASI shall, at ASI's sole expense, maintain the following
insurance:
(a) Commercial General Liability Insurance including contractual
coverage: The limits of this insurance for bodily injury and
property damage combined shall be at least:
Each Occurrence Limit $1,000,000
General Aggregate Limit $2,000,000
Products-Completed Operations Limit $1,000,000
Personal and Advertising injury Limit $1,000,000
(b) Business Automobile Liability Insurance: Should the performance of
this Agreement involve the use of automobiles, ASI shall provide
comprehensive automobile insurance covering the ownership,
operation and maintenance of all owned, non-owned and hired motor
vehicles. ASI shall maintain limits of at least $1,000,000 per
occurrence for bodily injury and property damage combined.
(c) Workers' Compensation Insurance: Such insurance shall provide
coverage in amounts not less than the statutory requirements in
the state where the work is performed, even if such coverage is
elective in that state.
(d) Employers Liability Insurance: Such insurance shall provide limits
of not less than $1,000,000 per occurrence.
The insurance specified in (a) and (b) above shall provide that such
insurance is primary coverage with respect to all insureds and
additional insureds.
The above insurance coverages may be obtained through any combination
of primary and excess or umbrella liability insurance. EDS may require
higher limits or other types of insurance coverage(s) as necessary and
appropriate under the applicable purchase order.
ASI shall provide at EDS' request certificates evidencing the
coverages, limits and provisions specified above on or before the
execution of the Agreement and thereafter upon the renewal of any of
the policies. ASI shall require all insurers to provide EDS with a
thirty (30) day advanced written notice of any cancellation, nonrenewal
or material change in any of the policies maintained in accordance with
this Agreement.
5.6 Survival of Article V. The provisions of this Article V shall survive
the term or termination of this Agreement for any reason.
ARTICLE VI. PAYMENTS TO ASI
6.1 Charges, Prices, and Fees for Licensed Software and Services. Charges,
prices, and fees ("Charges") and discounts, if any, for Licensed
Software and Services shall be determined as set forth in Exhibit B, in
a Purchase Order, or as otherwise agreed upon by the parties, unless
modified as set forth in this Agreement. Upon EDS' request, ASI shall:
(i) provide to EDS current copies of ASI's standard published prices,
and (ii) records which substantiate that EDS has received the Charges
and discounts to which EDS is entitled to under this Agreement. In no
event shall Charges exceed ASI's then current established charges,
prices and fees. If promotional discounts or programs are extended to
other customers, dealers, or distributors of ASI, EDS shall be entitled
to participate in such promotional discounts or programs. All purchases
which utilize any such discounts shall be deemed
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for all purposes including, without limitation, for purposes of
calculating accumulated purchases and any discounts hereunder, to have
been purchased or licensed under this Agreement.
6.2 Modifications to Charges. Where a change in an established Charge for
Licensed Software or Services is provided for in this Agreement, ASI
shall give to EDS at least ninety (90) days' prior written notice of
such change.
(a) Any increase in a Charge shall not occur during the first twelve
(12) months of this Agreement, during the term of the applicable
Purchase Order or during the specified period for performance of
Services, whichever period is longer. Thereafter, any increase in
a Charge shall (i) not occur unless a minimum of twelve (12)
months has elapsed since the effective date of the previously
established Charge, and (ii) not exceed five percent (5%) of such
Charge.
(b) All purchase orders issued by EDS prior to the end of the required
notice period will be honored at the then current Charges so long
as the scheduled delivery date of the applicable Licensed Software
or Services is within ninety (90) days after the effective date of
the increase.
(c) If ASI's established Charge, less any applicable discount or
promotion, on the scheduled delivery date is lower than the
established Charge for such Licensed Software or Service stated in
the applicable Purchase Order, then EDS shall be entitled to
obtain such Licensed Software or Service at such lower Charge,
less any applicable discount or promotion.
6.3 Auto Payment. This Section shall apply to Purchase Orders identified as
being subject to automatic payment by EDS.
(a) Single Payment for Recurring Charges. All Charges which are due
and payable on a monthly, annual or other periodic basis for
Licensed Software and Services ("Recurring Charges") shall be paid
by EDS on the same date of the month for each month that such
Charges are due (the "Remit Date"). The initial payment for a
Recurring Charge shall be made on the first Remit Date after the
Applicable Event provided that such Applicable Event occurs at
least five (5) days prior to the first Remit Date. An "Applicable
Event" is the event set forth in a Purchase Order that initiates
payment of Charges (such as the installation, receipt, or
acceptance of the Licensed Software; or the commencement or
completion of Services). If the Applicable Event occurs less than
five (5) days prior to the first Remit Date, the initial payment
for such Recurring Charge shall be made on the following Remit
Date, and EDS shall not be subject to interest or penalties as a
result of such late payment.
(b) Payment for Other Charges. Except for Recurring Charges, or unless
otherwise agreed to by the parties in writing, all payments due
ASI for Licensed Software and Services shall be paid within thirty
(30) days after the date of the Applicable Event.
(c) Invoices Required Under Auto Payment. ASI must send EDS an invoice
to receive payment for any amounts due for any Charges which are
payable and have not been identified on the applicable Purchase
Order which is subject to automatic payment.
(d) Reconciliation. From time to time, at either party's request, the
other party shall assist with the reconciliation of the payments
made by EDS to ASI.
(e) Taxing Jurisdictions. ASI shall provide EDS with the list of
states and taxing jurisdictions, and their respective registration
numbers
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where ASI is qualified and registered to collect sales/use taxes
in all of the taxing jurisdictions within that state. If such
written notification is not received by EDS from ASI, then EDS
shall remit the appropriate tax directly to the taxing authority.
ASI shall promptly notify EDS of any additional jurisdictions to
which ASI may qualify and register to collect sales/use taxes.
6.4 Payment Through Invoicing. This Section applies to Purchase Orders
issued by EDS which are not identified as being subject to automatic
payment or to any invoice received by EDS from ASI as permitted by this
Agreement.
(a) Except as otherwise set forth in this Agreement, any undisputed
sum due to ASI pursuant to this Agreement shall be payable within
thirty (30) days after receipt by EDS of a correct invoice
therefor from ASI. ASI shall invoice EDS on or after the
applicable Acceptance Date for the Licensed Software covered by
such invoice. Periodic payments, if any, due to ASI pursuant to
this Agreement shall be invoiced at the beginning of the period to
which they apply. Payment for any other Services shall be invoiced
as agreed upon by the parties or, in the absence of an agreement,
upon completion of such Services.
(b) A "correct" invoice shall contain (i) ASI's name and invoice date,
(ii) the specific Purchase Order number if applicable, (iii)
description including serial number as applicable, price, and
quantity of the Licensed Software or Services actually delivered
or rendered, (iv) credits (if applicable), (v) name (where
applicable), title, phone number, and complete mailing address of
responsible official to whom payment is to be sent, and (vi) other
substantiating documentation or information as may reasonably be
required by EDS from time to time. A correct invoice must be
submitted to the appropriate invoice address listed on the
applicable Purchase Order.
6.5 Taxes.
(a) Unless EDS provides evidence of exemption, EDS shall pay or
reimburse ASI, where EDS is liable under applicable tax statute,
amounts equal to taxes which are imposed upon EDS' acquisition of
Products or Services including federal excise taxes, or sales or
use taxes; provided, however, EDS shall not be obligated to pay or
reimburse ASI for any taxes attributable to the sale of any
Products or Services which are imposed on or measured by net or
gross income, capital, net worth, franchise, privilege, any other
taxes, or assessments, nor any of the foregoing imposed on or
payable by ASI.
(b) ASI agrees to reasonably cooperate with EDS in the audit or
minimization of any applicable tax and shall make available to
EDS, and any taxing authority, all information, records, or
documents relating to any audits or assessments attributable to or
resulting from the payment process under this Agreement, and the
filing of any tax returns or the contesting of any tax.
EDS shall not be obligated to pay or reimburse ASI for additions
to taxes, penalties, interest, fees, or other expenses or costs,
if any, incurred by EDS as a result of, or attributable to, (i)
ASI's failure to verify taxability of a purchase, (ii) ASI's
failure to correctly calculate or remit taxes in a timely manner,
or (iii) ASI's negligence, misconduct or failure to file properly
any required returns or reports, or other required documents.
(c) Upon written notification by EDS and subsequent verification by
ASI, ASI shall reimburse or credit, as applicable, EDS in a timely
manner, for any and all taxes erroneously paid by EDS.
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ARTICLE III. MISCELLANEOUS
8.1 Binding Nature, Assignment, and Subcontracting. This Agreement shall be
binding on the parties and their respective successors in interest and
assigns. Either party may only assign this Agreement to their
respective parent corporation or to its successor-in-interest that has
assumed all or substantially all of the assets or obligations of the
parent corporation; provided, however, that such assignee assumes in
writing the liabilities, obligations and responsibilities of the
assigning party. The assigning party shall notify the other party in
writing of such assignment. If ASI subcontracts or delegates any of its
duties or obligations of performance in this Agreement or in a Purchase
Order to any third party, ASI shall remain fully responsible for
complete performance of all of ASI's obligations set forth in this
Agreement or in such Purchase Order and for any such third party's
compliance with the non-disclosure and confidentiality provisions set
forth in this Agreement.
For purposes of this Agreement, the following transactions relating to
the parties shall not be deemed an assignment of this Agreement and
shall not give rise to any requirement of approval or consent by any
party to this Agreement, nor result in any right to terminate or alter
this Agreement: any merger (including, without limitation, a
reincorporation merger), consolidation, reorganization, stock exchange,
sale of stock or substantially all of the assets or other similar or
related transaction in which EDS or ASI, as applicable, is the
surviving entity or, if not the surviving entity, the surviving entity
continues to conduct the business conducted by such party prior to
consummation of the transaction.
8.2 Counterparts. This Agreement may be executed in several counterparts,
all of which taken together shall constitute one single agreement
between the parties.
8.3 Headings. The Article and Section headings used in this Agreement are
for reference and convenience only and shall not enter into the
interpretation hereof.
8.4 Authorized Agency. From time to time and at any time, EDS may assume
operational responsibility for computer software programs acquired
directly or indirectly from ASI by third parties which become customers
or affiliates, or which are acquired by EDS, after the Effective Date.
(a) With respect to such customers, and immediately upon execution of
a contract between EDS and a customer, the computer software
programs acquired from ASI by such customer shall be governed by
the terms and conditions of this Agreement and EDS may use such
computer software programs in accordance with this Agreement at no
additional charge to EDS or its customer, provided, however, that
such computer software programs may only be used by EDS on behalf
of that customer. With respect to each such customer, ASI, EDS and
the customer shall execute an access agreement authorizing EDS'
use of the computer software programs. Such access agreement shall
be in a form substantially similar to the Third Party System
Access Agreement attached to this Agreement as Exhibit C.
(b) With respect to any such affiliate, and upon ASI's receipt of
written notice from EDS and such affiliate, the license or other
agreement governing the use and support of such computer software
programs shall automatically be deemed to have been assigned to
EDS, provided, however, that such assigned license or other
agreement shall be superseded by, and the use and support of the
computer software programs shall be governed by, the terms and
conditions of this Agreement.
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(c) With respect to any third party with which EDS either (i) buys,
leases, or otherwise acquires all or a substantial part of the
assets or business of such third party, or (ii) consolidates with
or merges with said third party, the license or other agreement
governing the use and support of such computer software programs
shall automatically be deemed to have been assigned to EDS. At
that time, EDS may supersede such assigned license or other
agreement with the terms and conditions of this Agreement, in
which case the use and support of such computer software programs
shall be governed by the terms and conditions of this Agreement,
or EDS may elect to have the assigned license or other agreement
continue to govern the use of such computer software programs.
8.5 Relationship of Parties. ASI is performing pursuant to this Agreement
only as an independent contractor. ASI has the sole obligation to
supervise, manage, contract, direct, procure, perform or cause to be
performed its obligations set forth in this Agreement, except as
otherwise agreed upon by the parties. Nothing set forth in this
Agreement shall be construed to create the relationship of principal
and agent between ASI and EDS. ASI shall not act or attempt to act or
represent itself, directly or by implication, as an agent of EDS or its
affiliates or in any manner assume or create, or attempt to assume or
create, any obligation on behalf of, or in the name of, EDS or its
affiliates.
8.6 Confidentiality. Each party acknowledges that in the course of
performance of its obligations pursuant to this Agreement, it may
obtain confidential and/or proprietary information of the other party
or its affiliates or customers. "Confidential Information" includes:
information relating to development plans, costs, finances, marketing
plans, equipment configurations, data, access or security codes or
procedures utilized or acquired, business opportunities, names of
customers, research, and development; the terms, conditions and
existence of this Agreement; any information designated as confidential
in writing or identified as confidential at the time of disclosure if
such disclosure is verbal or visual; and any copies of the prior
categories or excerpts included in other materials created by the
recipient party. Each party agrees that, for a period of two (2) years
following its receipt of Confidential Information from the other party
or the other party's affiliates or customers, whether before or after
the Effective Date, such recipient party shall use the same means it
uses to protect its own confidential and proprietary information, but
in any event not less than reasonable means to prevent the disclosure
and to protect the confidentiality of the Confidential Information.
Further, the recipient party shall only use the Confidential
Information for purposes of this Agreement, and shall not disclose the
Confidential Information without the prior written consent of the other
party. This provision shall not apply to Confidential Information which
is (i) already known by the recipient party without an obligation of
confidentiality, (ii) publicly known or becomes publicly known through
no unauthorized act of the recipient party, (iii) rightfully received
from a third party (other than an affiliate or customer of the party
owning the Confidential Information) without an obligation of
confidentiality, (iv) disclosed without similar restrictions by the
owner of the Confidential Information to a third party (other than an
affiliate or customer of the party owning the Confidential
Information), (v) approved by the party owning the Confidential
Information, in writing, for disclosure, or (vi) required to be
disclosed pursuant to a requirement of a governmental agency or law so
long as the recipient party provides the other party with timely prior
written notice of such requirement.
8.7 Media Releases. Except for any announcement intended solely for
internal distribution by ASI or any disclosure required by legal,
accounting, or regulatory requirements beyond the reasonable control of
ASI, all media releases, public announcements, or public disclosures
(including, but not limited to, promotional or marketing material) by
ASI or its employees or
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agents relating to this Agreement or its subject matter, or including
the name, trade name, trade ▇▇▇▇, or symbol of EDS or any affiliate of
EDS, shall be coordinated with and approved in writing by EDS prior to
the release thereof. ASI shall not represent directly or indirectly
that any Licensed Software or Service provided by ASI to EDS has been
approved or endorsed by EDS or include the name, trade name, trade
▇▇▇▇, or symbol of EDS or any affiliate of EDS on a list of ASI's
customers without EDS' express written consent.
8.8 Dispute Resolution. In the event of any disagreement regarding
performance under or interpretation of this Agreement and prior to the
commencement of any formal proceedings, the parties shall continue
performance as set forth in this Agreement and shall attempt in good
faith to reach a negotiated resolution by designating a representative
of appropriate authority to resolve the dispute.
8.9 Electronic Communications. If ASI and EDS mutually agree, business
communications between the parties, including, but not limited to,
purchase orders, invoices, and payment may be submitted electronically.
In such case, the parties shall mutually agree in writing upon
supplemental terms and conditions, including technical standards, for
the electronic exchange of such items.
8.10 Proposals and Special Projects. EDS may request a written proposal,
quote, or bid from ASI for the provision of Licensed Software and/or
Services for a specific EDS project which may be governed by separately
negotiated terms and conditions. In such event, any Licensed Software
and Services obtained for such project shall be deemed for purposes of
calculating accumulated purchases and any discounts set forth in this
Agreement, to have been obtained pursuant to this Agreement.
8.11 Governmental Customers. This Agreement shall apply to the acquisition
of Licensed Software or Services for use in or in support of the
performance of, or resale under, a contract with a state, county, or
local governmental entity (a "Governmental Customer"). ASI and EDS may
negotiate in good faith a supplemental agreement incorporating required
flow-down provisions or other provisions relating to, applicable to, or
required by such Governmental Customer or the proposed contract between
EDS and such Governmental Customer. All Licensed Software and Services
obtained pursuant to this Section shall be deemed for purposes of
calculating accumulated purchases and any discounts set forth in this
Agreement, to have been obtained pursuant to this Agreement, including
purchases made by EDS in support of the United States Federal
Government under a separate contract with ASI.
8.12 International Business. This Agreement shall apply to the acquisition
of Licensed Software and Services for use in or in support of the
performance or remarketing of Licensed Software and Services in
countries outside the United States and its territories. ASI and EDS
and/or their respective agents, distributors, or affiliates authorized
to conduct business in such countries may negotiate in good faith
supplemental agreements incorporating further terms and conditions
required by local law. All Licensed Software and Services obtained
pursuant to this Section shall be deemed for purposes of calculating
accumulated purchases and any discounts set forth in this Agreement, to
have been obtained pursuant to this Agreement.
8.13 Compliance with Laws. In the performance of Services or the provision
of Licensed Software pursuant to this Agreement, ASI shall comply with
the requirements of all applicable laws, ordinances, and regulations of
the United States or any state, country, or other governmental entity.
In particular, ASI agrees to comply with the United States Export
Administration Act, Executive Order No. 11246, as amended by Executive
Order No. 11375, the Vietnam Era Veterans Readjustment Assistance Act
of 1974, the Rehabilitation Act of 1973, the Immigration Reform and
Control Act of 1986,
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and the Americans With Disabilities Act. This Section incorporates by
reference all provisions required by such laws, orders, rules,
regulations, and ordinances. ASI shall indemnify, defend, and hold EDS
harmless from and against any and all claims, actions, or damages
arising from or caused by ASI's failure to comply with the foregoing.
8.14 Labor. ASI shall comply with any labor jurisdictions applicable to
ASI's performance pursuant to this Agreement and shall cooperate with
EDS in resolving any disputes resulting from any jurisdictional or
labor claims or stoppages. Upon request by ASI, EDS shall provide to
ASI clarification and guidelines regarding relationships with labor and
ASI's responsibilities with respect thereto.
8.15 Export. Neither party shall export any Licensed Software or information
protected hereunder by an obligation of confidentiality from the United
States, either directly or indirectly, without first obtaining a
license or clearance as required from the U.S. Department of Commerce
or other agency or department of the United States Government.
8.16 Notices. Wherever one party is required or permitted to give notice to
the other pursuant to this Agreement, such notice shall be deemed given
when delivered in hand, when mailed by registered or certified mail,
return receipt requested, postage prepaid, or when sent by a third
party courier service where receipt is verified by the receiving
party's acknowledgment, and addressed as follows:
In the case of EDS:
Electronic Data Systems Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Manager, Contracts Administration
With a copy to EDS:
Electronic Data Systems Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Contracts Administration
In the case of ASI:
Advanced Systems International
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Either party may from time to time change its address for notification
purposes by giving the other party written notice of the new address
and the date upon which it will become effective; first class, postage
prepaid, mail shall be acceptable for provision of change of address
notices.
8.17 Force Majeure. The term "Force Majeure" shall be defined to include
fires or other casualties or accidents, acts of God, severe weather
conditions, strikes or labor disputes, war or other violence, or any
law, order, proclamation, regulation, ordinance, demand, or requirement
of any governmental agency.
(a) A party whose performance is prevented, restricted, or interfered
with by reason of a Force Majeure condition shall be excused from
such performance to the extent of such Force Majeure condition so
long as such party provides the other party with prompt written
notice describing the Force Majeure condition and takes all
reasonable steps
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to avoid or remove such causes of nonperformance and immediately
continues performance whenever and to the extent such causes are
removed.
(b) If, due to a Force Majeure condition, the scheduled time of
delivery or performance is or will be delayed for more than thirty
(30) days after the scheduled date, the party not relying upon the
Force Majeure condition may terminate, without liability to the
other party, the Purchase Order or any portion thereof covering
the delayed Products or Services.
(c) If a Force Majeure condition or other delay by ASI causes EDS to
terminate its business relationship with a third party for whom
delayed Products were ordered and EDS has no alternative use for
the Products after using reasonable efforts to relocate or
otherwise utilize the Products, then EDS may terminate the
applicable Purchase Order and ASI shall refund to EDS all amounts
paid thereunder.
8.18 Severability. If, but only to the extent that, any provision of this
Agreement is declared or found to be illegal, unenforceable, or void,
then both parties shall be relieved of all obligations arising under
such provision, it being the intent and agreement of the parties that
this Agreement shall be deemed amended by modifying such provision to
the extent necessary to make it legal and enforceable while preserving
its intent. If that is not possible, another provision that is legal
and enforceable and achieves the same objective shall be substituted.
If the remainder of this Agreement is not affected by such declaration
or finding and is capable of substantial performance, then the
remainder shall be enforced to the extent permitted by law.
8.19 Waiver. Any waiver of this Agreement or of any covenant, condition, or
agreement to be performed by a party under this Agreement shall (i)
only be valid if the waiver is in writing and signed by an authorized
representative of the party against which such waiver is sought to be
enforced, and (ii) apply only to the specific covenant, condition or
agreement to be performed, the specific instance or specific breach
thereof and not to any other instance or breach thereof or subsequent
instance or breach.
8.20 Remedies. All remedies set forth in this Agreement, or available by law
or equity shall be cumulative and not alternative, and may be enforced
concurrently or from time to time.
8.21 Survival of Terms. Termination or expiration of this Agreement for any
reason shall not release either party from any liabilities or
obligations set forth in this Agreement which (i) the parties have
expressly agreed shall survive any such termination or expiration, or
(ii) remain to be performed or by their nature would be intended to be
applicable following any such termination or expiration.
8.22 Nonexclusive Market and Purchase Rights. It is expressly understood and
agreed that this Agreement does not grant to ASI an exclusive right to
provide to EDS any or all of the Licensed Software and Services and
shall not prevent EDS from developing or acquiring from other suppliers
computer software programs or services similar to the Licensed Software
and Services. ASI agrees that acquisitions by EDS pursuant to this
Agreement shall neither restrict the right of EDS to cease acquiring
nor require EDS to continue any level of such acquisitions. Estimates
or forecasts furnished by EDS to ASI prior to or during the term of
this Agreement shall not constitute commitments.
8.23 No Hire. ASI and EDS each agree that they shall not, except with prior
written consent of the other, employ or contract with any person
employed by the other then or within the preceding twelve (12) months
who was directly or indirectly involved in the performance of this
Agreement. Except with
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respect to persons who were directly involved in the performance of
this Agreement, this Section shall not prohibit one party from hiring
any employee of the other who: (i) responds to regular employment
solicitation efforts to the general public, such as newspaper
advertisements, or widely distributed announcements of job openings, or
(ii) requests employment without solicitation from the other party.
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8.24 GOVERNING LAW. THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL NOT BE GOVERNED BY THE PROVISIONS OF THE 1980 UNITED
NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
RATHER THESE RIGHTS AND OBLIGATIONS SHALL BE GOVERNED BY THE LAWS,
OTHER THAN CHOICE OF LAW RULES, OF THE STATE OF TEXAS.
8.25 Entire Agreement. This Agreement constitutes the entire and exclusive
statement of the agreement between the parties with respect to its
subject matter and there are no oral or written representations,
understandings or agreements relating to this Agreement which are not
fully expressed in the Agreement. This Agreement shall not be amended
except by a written agreement signed by both parties. All exhibits,
documents, and schedules referenced in this Agreement or attached to
this Agreement, and each Purchase Order are an integral part of this
Agreement. In the event of any conflict between the terms and
conditions of this Agreement and any such exhibits, documents, or
schedules, the terms of this Agreement shall be controlling unless
otherwise stated or agreed. In the event of a conflict between the
terms and conditions of this Agreement and a Purchase Order issued in
accordance with Article II, the Purchase Order shall be controlling
with respect to those transactions covered by that Purchase Order. Any
other terms or conditions included in any shrink-wrap license
agreements, quotes, invoices, acknowledgments, bills of lading, or
other forms utilized or exchanged by the parties shall not be
incorporated in this Agreement or be binding upon the parties unless
the parties expressly agree in writing or unless otherwise provided for
in this Agreement.
IN WITNESS WHEREOF, ASI and EDS acknowledge that each of the provisions
of this Agreement were expressly agreed to and have each caused this Agreement
to be signed and delivered by its duly authorized officer or representative as
of the Effective Date.
ELECTRONIC DATA SYSTEMS CORPORATION ADVANCED SYSTEMS INTERNATIONAL
By: By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------- ---------------------------------
Printed Name: Printed Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------- -----------------------
Title: Title: Chief Operating Officer
------------------------------ ------------------------------
Date: Date: 11/20/98
------------------------------- -------------------------------
Fed. Tax ID #: ▇▇▇▇▇▇▇▇▇
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