LICENSED AND DEVELOPED WORKS AGREEMENT AGREEMENT #PDSC-99-1146
Exhibit
10.3
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AGREEMENT
#PDSC-99-1146
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This
Agreement dated as of April 1, 1999 (“Effective Date”),
between International Business Machines Corporation, a New York corporation,
having a place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(“Buyer”) and Pacific Decision Sciences Corporation, a
California corporation, having a place of business at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Supplier”),
establishes the basis for a multinational procurement relationship under
which
Supplier will provide Buyer the Deliverables and Services described in SOWs
issued under this Agreement.
1.0
Definitions:
“Affiliates”
means
entities that control, are controlled
by, or are under common control with a party to this Agreement.
“Agreement”
means
this agreement and any relevant
statements of Work (“SOW”), Work Authorizations
(“WA”), Participation Attachments (“PA”), and
other attachments or appendices specifically referenced in this Agreement.
“Appearance
Design” means the appearance presented by an
object, formed in hardware or by software, that creates a visual impression
on
an observer. Appearance Design refers to the ornamental and not the functional
aspects of the object.
“Buyer”
means
either IBM or one of its Affiliates which
has signed a PA.
“Buyer
Personnel” means agents, employees or contractors
engaged by Buyer.
“Code”
means
computer programming code, including both
“Object Code” (computer programming code substantially in
binary form that is directly executable by a computer after processing, but
without compilation, or assembly) and “Source Code” (computer
programming code that may be displayed in a form readable and understandable
by
a programmer of ordinary skill, excluding Object Code).
“Deliverable”
means
any item that Supplier prepares for
or provides to Buyer as described in a SOW, Deliverables include Developed
Works, Licensed Works, Preexisting Materials, and Tools.
“Derivative
Work” means a work that is based on an
underlying work and that would be a copyright infringement if prepared without
the authorization of the copyright owner of the underlying work.
“Developed
Works” means Deliverables including their
Externals, developed in the performance of this Agreement that Buyer will
own,
and does not include Licensed Works, Preexisting Materials, Tools, or items
specifically excluded in a SOW.
“Enhancements”
means
changes or additions, other than
Error Corrections, to the Licensed Work. If an Enhancement adds substantial
value to the Licensed Work and is offered to customers for an additional
charge
it will be considered a “Major Enhancement”, and all other
Enhancements, including those that support new releases of operating systems
and
devices, will be considered “Basic Enhancements”.
“Error
Corrections” means revisions that correct errors
and deficiencies (collectively referred to as “errors”) in the Licensed Work.
“Externals”
means
any pictorial, graphic, or audiovisual
works generated by execution of code and any programming interfaces, languages
or protocols implemented in code to enable interaction with other computer
programs or end users. Externals do not include the code that implements
them.
“Invention”
means
any ideas, designs, concepts,
techniques, inventions, discoveries or improvements, whether or not patentable,
conceived or reduced to practice by Supplier or Supplier Personnel in
performance of this Agreement
“Joint Inventions” means Inventions made by Supplier or Supplier Personnel with Buyer Personnel.
“Joint Inventions” means Inventions made by Supplier or Supplier Personnel with Buyer Personnel.
“Licensed
Work” is any material described in or that
conforms to the Description of Licensed Work in the relevant SOW and includes
Code, associated documentation, Externals, Error Corrections, and Enhancements.
“Participation
Attachment” or “PA”
means an agreement signed by an Affiliate or Affiliates
which
incorporates by reference the terms and conditions in this agreement, any
relevant SOW, and other attachments or appendices specifically referenced
in the
PA.
“Preexisting
Materials” means items including their
Externals, contained within a Deliverable, in which the copyrights are owned
by
a third party or that Supplier prepared or had prepared outside the scope
of
this Agreement. Preexisting Materials exclude Tools, but may include material
that is created by the use of Tools.
“Prices”
means
the agreed upon payments and currency for
Deliverables and Services, including all applicable fees, royalty payments
and
taxes, as specified in the relevant SOW.
“Products”
means
an offering to customers or other
users, whether or not branded by Buyer or its Affiliates, that includes the
Licensed Work or a Derivative Work of a Licensed Work.
“Services”
means
work that Supplier performs for Buyer
as described in a SOW.
“Statement
of Work” or “SOW” means any
document attached to or included in this Agreement which describes the
Deliverables and Services, including any requirements, specifications or
schedules.
“Supplier”
means
either Supplier or one of its
Affiliates which has signed a PA.
“Supplier
Personnel” means agents, employees or
subcontractors engaged by Supplier.
“Tools”
means
not commercially available software, and
their Externals, required for the development, maintenance or implementation
of
a software Deliverable.
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Licensed
& Developed Works Agreement #PDSC-99-1146
LDWAR3 (03/30/99) Modified |
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Form
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Revision: 2/99 |
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AGREEMENT
#PDSC-99-1146
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“Work
Authorization” or “WA” means
Buyer’s authorization in either electronic or tangible form for Supplier to
conduct transactions under this Agreement (i.e., a purchase order, ▇▇▇▇ of
lading, or other Buyer designated document). A SOW is a WA only if designated
as
such in writing by Buyer.
2.0 Statement
of Work
2.1
Licensed Works
Supplier
will deliver to Buyer: (i) one complete copy of the Licensed Work described
in
the relevant SOW; (ii) a completed Certificate of Originality in the form
specified in the SOW with the Licensed Work and with each Enhancement to
the
Licensed Work; (iii) complete copies of all Tools, including updates to Tools
as
soon as practicable; and (iv) a complete list of all commercially available
software required for the development, maintenance or implementation of a
software Deliverable, including updates to the list as soon as
practicable.
2.2
Additional Deliverables
Supplier
will provide the Deliverables and Services as specified in the relevant SOW
only
when specified in a WA. Supplier will begin work only after receiving written
authorization from Buyer. Buyer may request changes to a SOW and Supplier
will
submit to Buyer the impact of such changes. Changes accepted by Buyer will
be
specified in an amended SOW or change order signed by both parties.
2.3
Enhancements and Error
Corrections
Supplier
will provide to Buyer, at no charge, Basic Enhancements and Error Corrections
for the Licensed Work beginning when Buyer accepts the Licensed Work and
continuing for the Error Correction Warranty Period identified in the SOW.
Supplier will also provide to Buyer, at no charge, Major Enhancements to
the
Licenced Work beginning when Buyer accepts the Licensed Work and continuing
for
the Major Enhancements Warranty Period identified in the SOW. After that
period,
Supplier will offer to Buyer within sixty (60) days of availability Major
Enhancements to the Licensed Work that Supplier creates or authorizes others
to
create at terms no less favorable than those offered to Supplier’s most favored
customers. If Buyer accepts Supplier’s offer, Buyer will amend the relevant SOW
to include such charges, terms and conditions, and the Major Enhancements
will
become part of the Licensed Work.
3.0
Term and
Termination
3.1
Term
Deliverables
and Services acquired by Buyer on or after the Effective
Date will be covered by this Agreement. This Agreement will remain in effect
until terminated.
3.2
Termination of this Agreement
Either
party may terminate this Agreement, without any cancellation charge, for
a
material breach of the Agreement by the other party or if the other party
becomes insolvent or files or has filed against it a petition in bankruptcy
(“Cause”), to the extent permitted by law. Such termination will be effective at
the end of a thirty (30) day written notice period if the Cause remains uncured.
Either party may terminate this Agreement without Cause when there are no
outstanding SOWs or WAs.
3.3
Termination of a SOW or WA
Buyer
may
terminate a SOW or a WA with or without Cause. Upon termination, in accordance
with Buyer’s written direction, Supplier will immediately: (i) cease work; (ii)
prepare and submit to Buyer an itemization of all completed and partially
completed Deliverables and Services: (iii) deliver to Buyer Deliverables
satisfactorily completed up to the date of termination at the agreed upon
Prices
in the relevant SOW; and (iv) deliver upon request any work in process. In
the
event Buyer terminates without Cause, Buyer will compensate Supplier for
the
actual and reasonable expenses incurred by Supplier for work in process up
to
and including the date of termination, provided such expenses do not exceed
the
Prices.
3.4
Effect of Termination
Termination
of this Agreement or a SOW will not affect any licenses granted in the Licensed
Work or Tools delivered or due to Buyer prior to the effective date of
termination or Supplier’s obligation to provide Basic Enhancements and Error
Corrections. In the event of termination for Cause, Buyer will not be obligated
to make any payments due on or after the effective date of termination, other
than royalty payments incurred, if any.
4.0
Pricing
Supplier
will provide Deliverables and Services to Buyer for the Prices. Except for
pre-approved expenses specified in the
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Licensed
& Developed Works Agreement #PDSC-99-1146
LDWAR3 (03/30/99) Modified |
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AGREEMENT
# PDSC
-99-1146
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relevant
SOW, the Prices for Deliverables and Services specified in a WA and accepted
by
Buyer will be the only amount due to Supplier from Buyer.
5.0 Payments
and Acceptance
5.1
Acceptance
Payment
of
royalties or invoices will not be deemed acceptance of Deliverables or Services,
but rather such Deliverables or Services will be subject to inspection, test
and
rejection in accordance with the acceptance or completion criteria as specified
in the relevant SOW. Buyer may, at its option, either reject Deliverables
or
Services that do not comply with the acceptance or completion criteria for
a
refund, or require Supplier, upon Buyer’s written instruction, to repair or
replace such Deliverables or re-perfom such Services, without charge and
in a
timely manner.
5.2
Royalty Payments
Royalties
for Licensed Works will be specified in the relevant SOW. Buyer may suspend
payments to Supplier for a Licensed Work if Supplier does not provide a properly
completed Certificate of Originality. Payment will resume upon Buyer’s receipt
of an acceptable Certificate. If Supplier fails to perform any of its
obligations, Buyer may reduce any amounts due Supplier by an amount equal
to the
value not received, or have Supplier reimburse Buyer for the value not
received.
5.3
Royalty
Calculations
Royalties,
if any, are paid against revenue recorded by Buyer for a royalty payment
quarter. Payment will be made by the last day of the second calendar month
following the royalty payment quarter. All payments will be made in U.S.
dollars. Payments based on foreign revenue will be converted to U.S. dollars
on
a monthly basis at the rate of exchange published by Reuters Financial Service
on approximately the same day each month. Terms for payment of any non-royalty
payments will be specified in the relevant SOW or WA.
5.4
Exceptions to Royalty Payment
Obligations
Buyer
has
no royalty obligation for: (a) the Licensed Work or its Derivative Works
used
for: (i) Buyer’s or Buyer Personnel’s internal use; (ii) development,
maintenance or support activities conducted by Buyer or Buyer Personnel;
(iii)
marketing demonstrations, customer testing or trial periods (including early
support, prerelease, encrypted or locked sampler distributions not resulting
in
a license for full productive use, or other similar programs), Product training
or education; or (iv) backup and archival purposes; (b) a copy of the Product
installed by a licensed end user on an alternate work station (e.g., home
terminal or laptop), provided the end user may not use the Product on both
work
stations at the same time; (c) the Licensed Work (or a functionally equivalent
work) that becomes available generally to third parties without a payment
obligation; (d) documentation provided with, contained in, or derived from
the
Licensed Work; (e) Error Corrections or Basic Enhancements; (f) warranty
replacement copies of the Product; and (g) Externals.
6.0
Electronic Commerce
The
parties
will conduct transactions using an electronic commerce approach under which
the
parties will electronically transmit and receive legally binding purchase
and
sale obligations (“Documents”), including electronic credit entries transmitted
by Buyer to the Supplier account specified in the relevant SOW. Each party,
at
its own expense, will provide and maintain the equipment, software, services
and
testing necessary for it to effectively and reliably transmit and receive
such
Documents. Either party may use a third party services provider for network
services, provided the other party is given sixty (60) days prior written
notice
of any changes to such services. A Document will be deemed received upon
arrival
at the receiving party’s mailbox or Internet address and the receiving party
will promptly send an acknowledgment of such receipt. The receiving party
will
promptly notify the originating party if a Document is received in an
unintelligible form, provided that the originating party can be identified.
In
the absence of such notice, the originating party’s record of the contents of
such Document will prevail. Each party will authenticate Documents using
a
digital signature or User ID, as specified by Buyer, and will maintain security
procedures to prevent its unauthorized use.
7.0
Ongoing Warranties
Supplier
makes the following ongoing representations and warranties: (i) it has the
right
to enter into this Agreement and its performance of this Agreement will not
violate the terms of any contract, obligation, law, regulation or ordinance
to
which it is or becomes subject; (ii) no claim, lien, or action exists or
is
threatened against Supplier that would interfere with Buyer’s rights under this
Agreement; (iii) Deliverables are safe for any use consistent with and will
comply with the warranties, specifications and requirements in this Agreement;
(iv) Services will be performed using reasonable care and skill and in
accordance with the
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Licensed
& Developed Works Agreement # PDSC-99-1146
LDWAR3
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AGREEMENT
#
PDSC-99-1146
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relevant
SOW; (v) Deliverables and Services which interact in any capacity with date
data
are Year 2000 ready such that when used in accordance with their associated
documentation they are capable of correctly processing, providing, receiving
and
displaying date data, as well as exchanging accurate date data with all products
with which the Deliverables or Services are intended to be used within and
between the twentieth and twenty-first centuries; vi) Deliverables will be
tested for, and do not contain, harmful code; (vii) Deliverables and Services
do
not infringe any privacy, publicity, reputation or intellectual property
right
of a third party; and (viii) all authors have agreed not to assert their
moral
rights (personal rights associated with authorship of a work under applicable
law) in the Deliverables, to the extent permitted by law.
THE WARRANTIES AND CONDITIONS IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THOSE WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.
THE WARRANTIES AND CONDITIONS IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THOSE WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.
8.0
Delivery
Deliverables
or Services will be delivered as specified in the relevant
SOW. If Supplier cannot comply with a delivery commitment, Supplier will
promptly notify Buyer of a revised delivery date and Buyer may: (i) cancel
without charge Deliverables or Services not yet delivered; (ii) procure such
Deliverables or Services elsewhere and charge Supplier the cost differential;
and (iii) exercise all other remedies provided at law, in equity and in this
Agreement.
9.0
Intellectual Property
9.1
Licensed
Works
Supplier
grants Buyer the rights in the Licensed Works as specified in the relevant
SOW.
Subject to Supplier’s ownership of the Licensed Work and Tools, Buyer will own
any Derivative Works it creates.
9.2
Work Made for
Hire
All
Developed Works belong exclusively to Buyer and are works made for hire.
If any
Developed Works are not considered works made for hire owned by Buyer by
operation of law, Supplier assigns the ownership of copyrights in such works
to
Buyer.
9.3
Preexisting
Materials
Supplier
will not include any Preexisting Materials in any Deliverable other than a
Licensed Work unless they are listed in the relevant SOW. Supplier grants
Buyer
a nonexclusive, worldwide, perpetual, irrevocable, paid-up, license to prepare
and have prepared Derivative Works of Preexisting Materials and to use, have
used, execute, reproduce, transmit, display, perform, transfer, distribute,
and
sublicense Preexisting Materials or their Derivative Works, and to grant
others
the rights granted in this Subsection.
9.4
Tools
Supplier
will not include Tools in Deliverables unless they are listed in the relevant
SOW. Supplier grants Buyer a nonexclusive, worldwide, perpetual, irrevocable,
paid-up, license to prepare and have prepared Derivative Works of Tools,
and to
use, have used, execute, reproduce, transmit, display and perform Tools or
their
Derivative Works.
9.5
Invention
Rights
Supplier
will promptly provide to Buyer a complete written disclosure for each Invention
which identifies the features or concepts which Supplier believes to be new
or
different. Inventions are owned by Supplier, except for Joint Inventions
and
Inventions relating to an Appearance Design. Supplier grants to Buyer an
irrevocable, nonexclusive, worldwide, perpetual paid-up
license under these Inventions (including any patent applications filed on
or
patents issued claiming Inventions). The license scope is to make, have made,
use, have used, sell, license or transfer items and to practice and have
practiced methods. Supplier assigns to Buyer all Inventions, and patents
issuing
on them, relating to an Appearance Design.
9.6
Joint Invention
Rights
The
parties
will jointly own all Joint Inventions and resulting patents. Either party
may
license others under Joint Inventions (including any patent applications
filed
on or patents issued claiming Joint Inventions) without accounting to or
consent
from the other.
9.7
Perfection of
Copyrights
Upon
request, Supplier will provide to Buyer a “Certificate of Originality” or
equivalent documentation to verify authorship of Deliverables. Supplier will
confirm assignment of copyright for Developed Works using the “Confirmation of
Assignment of Copyright” form and will assist Buyer in perfecting such
copyrights. Supplier will be responsible for registration, maintenance and
enforcement of copyrights for Licensed Works and Preexisting Materials. If
Supplier does not register a copyright in
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Licensed
& Developed Works Agreement # PDSC-99-1146
LDWAR3
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AGREEMENT
#PDSC-99-1146
Licensed
Works or Preexisting Materials, Supplier authorizes Buyer to act as its agent
in
the copyright registration of such Licensed Works or Preexisting Materials.
9.8
Perfection of Invention Rights
Supplier
will identify all countries in which it will seek patent protection for each
Invention. Supplier authorizes Buyer to act as its agent in obtaining patent
protection for the Inventions in countries where Supplier does not seek patent
protection. Supplier will, at Buyer’s expense, assist in the filing of patent
applications on Inventions and have required documents signed.
9.9
Names and Trademarks
Except
to
the extent permitted by local law, neither party shall have the right to
use the
trademarks, trade names or logos of the other party in connection with any
product, promotion or publication without the prior written approval of the
other party.
10.0
Indemnification
10.1
General Indemnification
Supplier
will defend, hold harmless and indemnify, including attorney’s fees, Buyer and
Buyer Personnel against claims that arise or are alleged to have arisen as
a
result of negligent or intentional acts or omissions of Supplier or Supplier
Personnel or breach by Supplier of any term of this Agreement.
10.2
Intellectual Property
Indemnification
Supplier
will defend, or at Buyer’s option cooperate in the defense of, hold harmless and
indemnify, including attorney’s fees, Buyer and Buyer Personnel from claims that
Supplier’s Deliverables or Services infringe the intellectual property rights of
a third party. If such a claim is or is likely to be made, Supplier will,
at its
own expense, exercise the first of the following remedies that is practicable:
(i) obtain for Buyer the right to continue to use, sell and license the
Deliverables and Services consistent with this Agreement; (ii) modify
Deliverables and Services so they are non-infringing and in compliance with
this
Agreement; (iii) replace the Deliverables and Services with non-infringing
ones
that comply with this Agreement; or (iv) at Buyer’s request, accept the
cancellation of infringing Services and the return of infringing Deliverables
and refund any amount paid.
10.3
Exceptions to Indemnification
Supplier
will have no obligation to indemnify Buyer or Buyer Personnel for claims
that
Supplier’s Deliverables or Services infringe the intellectual property rights of
a third party to the extent such claims arise as a result of Supplier’s
implementation of a Buyer originated design or Buyer’s modification of the
Deliverables.
11.0
Limitation of Liability
In
no event
will Buyer be liable to Supplier for any lost revenues, lost profits,
incidental, indirect, consequential, special or punitive damages.
12.0
Supplier and Supplier Personnel
Supplier
is
an independent contractor and this Agreement does not create an agency
relationship between Buyer and Supplier or Buyer and Supplier Personnel.
Buyer
assumes no liability or responsibility for Supplier Personnel. Supplier will:
(i) ensure it and Supplier Personnel are in compliance with all laws,
regulations, ordinances, and licensing requirements; (ii) be responsible
for the
supervision, control, compensation, withholdings, health and safety of Supplier
Personnel; (iii) ensure Supplier Personnel performing Services on Buyer’s
premises comply with the On Premises Guidelines; and (iv) inform Buyer if
a
former employee of Buyer will be assigned work under this Agreement, such
assignment subject to Buyer approval.
13.0
Insurance
Supplier
will maintain at its expense: (i) comprehensive general or public liability
insurance with a minimum limit per occurrence or accident of $1,000,000 (or
local currency equivalent); (ii) workers’ compensation or employer’s liability
as required by local law, such policies waiving any subrogation rights against
Buyer; and (iii) automobile liability insurance as required by local statute
but
not less than $1,000,000 (or local currency equivalent) if a vehicle will
be
used in the performance of this Agreement. Insurance required under this
Subsection will name Buyer as an additional insured with respect to Buyer’s
insurable interest, will be primary or non-contributory regarding insured
damages or expenses, and will be purchased from insurers of sound
internationally recognized financial standing.
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Licensed
& Developed Works Agreement #PDSC-99-1146
LDWAR3 (03/30/99) Modified |
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AGREEMENT
#PDSC-99-1146
14.0
General
14.1
Amendments
This
Agreement may only be amended by a writing specifically referencing this
Agreement which has been signed by authorized representatives of the parties.
14.2
Assignment
Neither
party will assign their rights or delegate or subcontract their duties under
this Agreement to third parties or affiliates without the prior written consent
of the other party, such consent not to be withheld unreasonably, except
that
Buyer may assign this Agreement in conjunction with the sale of a substantial
of
its business utilizing this Agreement. Any unauthorized assignment of this
Agreement is void.
14.3
Choice of Law and Forum; Waiver of Jury Trial; Limitation
of Action
This
Agreement and the performance of transactions under this Agreement will be
governed by the laws of the country where the Buyer entering into the relevant
Agreement or PA is located, except that the laws of the State of New York
applicable to contracts executed in and performed entirely within that State
will apply if any part of the transaction is performed within the United
States.
The parties expressly waive any right to a jury trial regarding disputes
related
to this Agreement. Unless otherwise provided by local law without the
possibility of contractual waiver or limitation, any legal or other action
related to a breach of this Agreement must be commenced no later than two
(2)
years from the date on which the cause of action arose.
14.4
Communications
All
communications between the parties regarding this Agreement will be conducted
through the parties’ representatives as specified in the relevant SOW.
14.5
Counterparts
This
Agreement may be signed in one or more counterparts, each of which will be
deemed to be an original and all of which when taken together will constitute
the same agreement. Any copy of this Agreement made by reliable means is
considered an original.
14.6
Exchange of Information
Unless
required otherwise by law, all information exchanged by the parties will
be
considered non-confidential. If the parties require the exchange of confidential
information, such exchange will be made under a confidentiality agreement.
The
parties will not publicize the terms or conditions of this Agreement in any
advertising, marketing or promotional materials except as may be required
by
law, provided the party publicizing obtains any confidentiality treatment
available. Supplier will use information regarding this Agreement only in
the
performance of this Agreement. For any business personal information relating
to
Supplier Personnel that Supplier provides to Buyer, Supplier has obtained
the
agreement of the Supplier Personnel to release the information to Buyer and
to
allow Buyer to use such information in connection with this Agreement.
14.7
Freedom of Action
This
Agreement is nonexclusive and either party may design, develop, manufacture,
acquire or market competitive products or services. Buyer will independently
establish prices for resale of Deliverables or Services and is not obligated
to
announce or market any Products or Services and does not guarantee the success
of its marketing efforts, if any.
14.8
Force Majeure
Neither
party will be in default or liable for any delay or failure to comply with
this
Agreement due to any act beyond the control of the affected party, excluding
labor disputes, provided such party immediately notifies the other.
14.9
Obligations of Affiliates
Affiliates
will acknowledge acceptance of the terms and conditions of this Agreement
through the signing of a PA before conducting any transaction under this
Agreement.
14.10
Prior Communications and Order of
Precedence
This
Agreement replaces any prior oral or written agreements or other communication
between the parties with respect to the subject matter of this Agreement,
excluding any confidential disclosure agreements. In the event of any conflict
in these documents, the order of precedence will be: (i) the quantity, payment
and delivery terms of the relevant WA; (ii) the relevant SOW; (iii) the relevant
PA; (iv) this agreement; and (v) the remaining terms of the relevant
WA.
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Licensed
& Developed Works Agreement #PDSC-99-1146
LDWAR3 (03/30/99) Modified |
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Release: 8/98
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AGREEMENT
#PDSC-99-1146
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14.11
Record Keeping and Audit
Rights
Supplier
will maintain (and provide to Buyer upon request) relevant accounting records
to
support invoices under this Agreement and proof of required permits and
professional licenses, for a period of time as required by local law, but
not
for less than three (3) years following completion or termination of the
relevant SOW. All accounting records will be maintained in accordance with
generally accepted accounting principles.
14.12
Severability
If
any term
in this Agreement is found by competent judicial authority to be unenforceable
in any respect, the validity of the remainder of this Agreement will be
unaffected, provided that such unenforceability does not materially affect
the
parties’ rights under this Agreement.
14.13
Survival
The
provisions set forth in the following Sections and Subsections of this Agreement
will survive after termination of this Agreement and will remain in effect
until
fulfilled: “Ongoing Warranties”, “Intellectual Property”, “Indemnification”,
“Limitation of Liability”, “Record Keeping and Audit Rights”, “Choice of Law and
Forum; Waiver of Jury Trial; Limitation of Action”, “Exchange of Information”,
and “Prior Communications and Order of Precedence”.
14.14
Waiver
An
effective waiver under this Agreement must be in writing signed by the party
waiving its right. A waiver by either party of any instance of the other
party’s
noncompliance with any obligation or responsibility under this Agreement
will
not be deemed a waiver of subsequent instances.
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ACCEPTED
AND AGREED TO:
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ACCEPTED
AND AGREED TO:
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PACIFIC
DECISION
SCIENCES
CORPORATION |
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INTERNATIONAL
BUSINESS MACHINES
CORPORATION
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By:
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By:
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Authorized
Signature
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Authorized
Signature
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Hark
Vasa
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Printed
Name
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Printed
Name
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President
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Contract
Administrator
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Title
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Title
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March
31, 1999
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Date
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Date
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Licensed
& Developed Works Agreement #PDSC-99-1146
LDWAR3 (03/30/99) Modified |
7
of 7
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Form
Release: 8/98
Revision: 2/99 |