EXHIBIT 10.24
CONSILIUM
Addendum Software License and Maintenance Agreement
This addendum (the "Addendum") to the Consilium, Inc., Software
License. and Maintenance Agreements is entered Into between ConsiIium, Inc.,
("Consilium") and Xxxxxx Corporation ("License.") and is effective October 27,
1995.
Recitals
A. The parties have entered into a Software License and Maintenance
Agreement dated July 31, 1984, (the "Agreement").
B. The parties wish to modify the Agreement in certain respects as
follows:
Addendum
1. Amended and Restated License Grant
Consilium agrees to grant to Licensee a conversion to and upgrade of the
existing license grant to an equivalent of a one thousand five hundred (1,500)
Concurrent User License level for the Licensed Programs set forth below. In
addition Licensee shall have the right to designate the hardware platform on
which the Licensed Programs will be used, from any platform then currently
supported by Consilium, at no additional transfer xxx.
WorkStream License Programs
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Activity Planner/Dispatch
Custom Data Collection
Engineering Data Collection, Advanced
Factory Communications
Process Automation Management
Resource Tracking, Advanced
Rule. Based Dispatch
Specifications
Statistical Quality Control
Work in Process Tracking, Advanced (Includes inventory Tracking)
WorkStream Interface Tools
Total Conversion and Upgrade Fee: $207,000
Payment Term.: 100% due on execution of this Addendum and receipt by
Consilium of Licensee'. Purchase Order In favor of Consilium, arid payable by
Licensee net thirty (30) day. following receipt by Licensee of a connect
Consilium invoice.
2. Amended and Restated Scope of Use.
(a) Licensee shall have the right to us. the Licensed Programs solely for
Licensee's worldwide Internal operation., for the designated number of licensed
Concurrent Users as set forth above. All users of the Licensed Programs must be
physically located at authorized sites of Licensee. The Licensed Programs shall
not be used to monitor or control operations at any other physical locations.
For the purpose of the Agreements:
I. An authorized she of Licensee shall be considered any subsidiaries or
affiliates of Licensee which directly or indirectly control or are controlled
by, or at. under the common control of Licensee. Control means, "the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and operating policies of the subsidiary or affiliate in respect of
which the determination it being made, through the ownership of voting
securities (of greater than 50% of its voting securities or the maximum as allow
or required by law), contract, voting bust or otherwise, or if a partnership. as
to which Licenses is a general partner, or that Licensee otherwise control In
matter. of management and operations".
II. A Concurrent User shall mean a person or application that accesses the
database directly or indirectly through the WorkStream Licensed Program's
module/application.
(b) Licensee is authorized to use the Licensed Programs on a backup
computer(s) of its choice at an authorized site or such temporary alternate
location as may be required until which time U the designated computer(s) is
operable and processing on the backup computer Is completed.
(c) Licensee shall use the Licensed Programs solely and exclusively for
its own purposes and shall not, Without the prior within approval of Consilium,
either allow any third party, person, firm or corporation to use the Licensed
Programs, or Itself use the Licensed Programs for the purposes of any such third
party, whether or not Licensee is compensated therefor. Access to the Licensed
Program by any Such third party, person, firm or corporation for the direct
benefit of Licensee may be granted subject to confidentiality obligations
substantially similar to those which are set forth in Paragraph 14 of the
Software License Agreement dated July 31, 1984.
(d) The parties agree that on a biannual basis (the actual dates to be
mutually agreed upon by the parties), a Concurrent User or Connection count
and/or audit of usage will take place to determine. that the current level of
use is consistent with the 1,500 Concurrent User license level and/or then
current Concurrent license level. Licensee shall be obligated to purchase
additional user and/or connection licenses for the Licensed Programs that are
beyond the 1,500 Concurrent User or then current connection license level limit.
In the event adjustments to the actual Concurrent User or Connection license
levels are necessary, the timing of any such adjustments shall be as mutually
agreed upon by the parties.
3. WorkStream DFS/A Licensed Program
(a) Licensee currently has a ten (10) Connection object code license to
WorkStream Connection and Station Controller. Consilium agrees to grant to
Licensee subject to the fees set forth below and in accordance with additional
terms and conditions herein and as set forth in 2(a)i, 2(b), 2(c), 2(d), an
object code only license to the following additional Licensed Programs at the
one hundred (100) Connection license level;
(i) Licensed Programs available for delivery on or before 10/31/95 List Price
-------------------------------------------------------------- ----------
Station Controller $ 140,000
Recipe Management Server 182,000
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Subtotal List Price $ 322,000
less discount (applicable Is Addendum signed and Purchase (128,800)
Order received on or before October 31, 1995)
---------
Total License Fees Due $193,200
Payment Terms: 100% due on delivery of the Licensed Program(s) by
Consilium and payable net 90 days following Licensee's receipt of a correct
Consilium Invoice.
The annual Maintenance Fee shall be based on fifteen percent (15%) of
Consilium's then current list price ($322,000 x 15% = $48,300). For the first
year the Maintenance Fees shall be pro-rated for a term effective February 1,
1996 (expiration data of the ninety (90) day warranty period) through July 30,
1996 in the amount of $24,150, and shall be due and payable in advance, net
thirty (30) days following the effective date and receipt by Licensee of a
correct Consilium invoice
(b) For the purpose of the Agreement 1) "Object Code" shall mean the
Programs assembled or compiled in magnetic or electronic binary form on software
media, which are readable and usable by machines, but riot generally readable by
human. without reverse assembly, reverse compiling or reverse engineering, and
2) "Source Code" means the Programs written In programming languages (such as
COBOL or O++), including all comments and procedural code, such as job control
language, statements, In a form Intelligible to trained programmers and capable
of being translated into Object Code for operation on computer equipment through
assembly or compiling, and accompanied by documentation in sufficient detail to
enable a trained programmer through the study of such documentation to modify
the Programs without undue experimentation.
(c) Licensee may reproduce the Object Code and translate its form when
such recompilation or reverse engineering is indispensable In obtaining the
necessary information to achieve the interoperability of other computer programs
with the Licensed Programs, but only if: 1) the Source Code has bean requested
from Consilium by Licensee and Consilium has advised such Source Code Is not
otherwise readily available, and 2) the acts are confined to the parts of the
Object Code Programs which are necessary to achieve interoperability, and 3)
such Source Code is not used for the development, production or marketing of a
computer program substantially similar expression or used In a manner which
unreasonably prejudices Consilium's interest, rights or title in or to its
Licensed Programs.
(d) Consilium grants to Licensee the right to trade in existing licensed
WorkStream Programs, for an equal number of Concurrent User licenses to
WorkStream-DFS Application Server Programs, at no additional license fee charge,
which contain equivalent and/or similar functionality and are intended to
replace the existing WorkStream Program(s) as Consillium's next generation
Application Server Program(s). This does not include any embedded third party
software which Cosilium utilizes in the Application Server Program(s), and for
which Consilium would be required to pay royalties to the third party vendor. In
this event
Licensee agrees to pay either Consilium or the third party vendor (as directed
by Consilium) any applicable fees which would be due.
(e) Licensee may at their option and at their sole discretion license or
otherwise purchase software products or programs from any third party vendor.
Licensee acknowledges that such rights In no way obligate Consilium to ensure or
otherwise guarantee the computability of such products or programs with the
Consilium provided Licensed Programs.
(f) Consilium will offer Licensee a minimum thirty percent (30%) discount
from the then current list price for any additional Licensed Programs to be
licensed by Licensee. The 30% discount applies only to the License Fees for any
such additional Licensed Programs.
4. Maintenance
(a) For the Licensed Programs set forth in section 1., and the ten (10)
Connection License Programs referenced In section 3(a), and/or the converted
WorkStream DFS licenses referenced in section 3(d), the annual baseline
Maintenance Fee for each of the next five (5) years shall be as follows and
shall be payable annually in advance;
Effective July 31, 1996 through July 30, 1997 $162,628
Effective July 31, 1997 through July 30, 1998 $189,810
Effective July 31. 1998 through July 30. 1999 $216,697
Effective July 31, 1999 through July 30, 2000 $243,785
Effective July 31, 2000 through July 30, 2001 $270,672
and, for each year thereafter $270,872
5. All other terms of the Agreements shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum on the date
first written above.
CONSILIUM, INC. XXXXXX CORPORATION
Consilium: Licensee:
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx Xxxxxxx
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Signature Signature
Xxxxxx X. Xxxxxxx Xxxxxx Xxxxxxx
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Printed Name Printed Name
Manager, Contract Administration/
General Legal Services Manager, Manufacturing Systems
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