Common use of CUSTOMIZATION METHODOLOGY Clause in Contracts

CUSTOMIZATION METHODOLOGY. (a) If Subscriber desires that the Licensed Program be modified, customized or adapted in any respect to suit Subscriber's specific requirements through the development of custom software modules, Subscriber shall deliver to NetGenics written notice thereof, in the form of EXHIBIT D, specifying Subscriber's requirements in as much detail as possible. Upon receipt of such notice, NetGenics and Subscriber shall cooperate in good faith to agree upon the scope of such Services, detailed requirements, high-level design, the timetable for development and implementation and cost (or Service Hours) therefor; provided, however, that nothing in this Agreement shall be deemed to (i) obligate NetGenics to perform any Services in excess of those available by way of Subscriber's then available Service Hours or (ii) provide Services related to custom software modules deemed by NetGenics, in its sole discretion, to be unfeasible. Such agreement shall be set forth in writing, referencing this Agreement, and shall be incorporated herein as EXHIBIT E. (b) To the extent the number of Service Hours that NetGenics estimates will be required to complete a custom software module, as specified in the aforementioned, mutually agreed development schedule during a calendar year exceeds Subscriber's then-unused Service Hours for such calendar year, such customization Services shall be charged to Subscriber at NetGenics' standard billing rates then in effect. (c) Subject to the limitations set forth in Section 14 hereto, NetGenics warrants that a custom software module, once completed and accepted by Subscriber in accordance with the terms hereof, shall perform in all material respects in accordance with the established, mutually-agreed detailed requirements specified on EXHIBIT E. (d) Subscriber and NetGenics acknowledge that a custom software module may contain Subscriber Know-How. In the event Subscriber seeks to designate part of a custom software module as Subscriber Know-How, Subscriber shall inform NetGenics of same in writing as a part of EXHIBIT D, and NetGenics and Subscriber shall jointly agree on the scope of such Subscriber Know-How, and the extent to which such Subscriber Know-How (i) is necessary to the custom software module, (ii) does not contain NetGenics Confidential Information, and (iii) provides competitive advantage to Subscriber, and shall designate same on EXHIBIT E. NetGenics shall not re-use or incorporate such Subscriber Know-How in the design or development of any custom software module for any third-party subscriber of the Software. Notwithstanding the foregoing, NetGenics shall not be restricted in providing any custom software module to any third party subscriber which (A) does not contain Subscriber Know-How, or (B) is designed by NetGenics according to such third party's independent specifications. Service Hours charged for such customer software modules may be adjusted to reflect lack of re-use by NetGenics. The System Committee (defined in Section 6.4) shall determine the scope of Subscriber Know-How and shall resolve any disputes relating to Service Hours charged for Customer Software Modules. (a) NetGenics shall use commercially reasonable efforts to install custom software modules in accordance with the schedule set forth in the completed EXHIBIT E, subject to Subscriber performing its obligations under this Agreement and providing such cooperation as NetGenics may reasonably request to facilitate such installation. Such installation with respect to any custom software module shall be deemed complete upon written notice from NetGenics to Subscriber. (b) Subscriber shall be deemed to have accepted a custom software module with respect to which any installation notice has been provided by NetGenics unless (i) such installed custom software module materially fails to conform to the specifications as set forth on EXHIBIT E therefor, (ii) Subscriber gives notice of nonacceptance to NetGenics within thirty (30) days after the date of such installation notice, and (iii) any such notice of non-acceptance states specifically with respect to such installed custom software module, the custom software specifications to which such installed custom software module fails to conform with sufficient specificity to permit NetGenics to correct such nonconformity. NetGenics shall use commercially reasonable efforts to correct any nonconformity found to exist and notify Subscriber in writing upon the completion of such correction. If NetGenics is unable to make such corrections, Subscriber's remedy shall be limited, at NetGenics' sole discretion, to correction of the nonconforming portion of the custom software