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Exhibit 10.4
INTERNATIONAL SOFTWARE MARKETING AND LICENSE AGREEMENT
SEEC, INC.
- and -
VIASOFT, INC.
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FINAL
THIS INTERNATIONAL SOFTWARE MARKETING AND LICENSE AGREEMENT is made as of this
29th day of November, 1993 by and between
SEEC, INC., a corporation organized and existing under the laws of
Pennsylvania (hereinafter referred to as "SEEC"), having its principal
office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
- and -
VIASOFT, INC., a corporation organized and existing under the laws of
Delaware (hereinafter referred to as "VIASOFT"), having its principal
office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, it is hereby agreed as follows:
1. Definitions.
(a) "Add-ons" includes any products that SEEC, ERA Software Systems
("ERA") or any third party authorized by SEEC or ERA may develop
that may be sold or licensed in conjunction with Cobol Analyst and
which will require access to the SEEC Application Dictionary and do
not include COBOL Analyst. Add-ons do include ADW Export. Add-ons
will be used in conjunction with COBOL Analyst for performing COBOL
application maintenance. As used in this Agreement, "Add-ons" do
not include products that access the SEEC Application Dictionary
and will be sold to the COBOL Analyst customer base but whose end
use is not COBOL application maintenance. Such products are not
included within the scope of this Agreement.
(b) "Affiliate" shall mean any person or entity controlling, controlled
by or under common control with a person or entity.
(c) "Best Efforts" shall mean SEEC is to use its best efforts, in the
required context, without being required to utilize more than such
resources as have been allocated by SEEC (and any other development
sites of SEEC, including without limitation, ERA) to the Licensed
Programs.
(d) "Change in Control" with respect to a party means the happening of
any of the following: any transaction or series of transactions
(whether by stock sale or exchange, merger, sale of substantially
all of its assets, or otherwise) after the effectiveness of which
such party's current shareholders together own less than fifty-one
percent (51%) of the outstanding beneficial
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interests and voting power of such party or the resultant entity,
provided that an initial public offering shall not be deemed to be
a "Change in Control" within the meaning of this Agreement.
(e) "Commencement Date" means December 1, 1993.
(f) "End User" shall mean any user who has the right to use any
Licensed Program for its own internal business use and not for any
other use, including, without limitation, remarketing, resale,
relicensing or other redistribution, either alone or as a component
of any other product.
(g) "End User Sublicense Agreement" shall mean an agreement described
in Section 3(a) hereof.
(h) "Final Beta Tests" means beta tests performed by VIASOFT using the
final beta version for a Licensed Program created by or for SEEC
(i) "Intellectual Property Rights" shall mean and include all
copyrights, trademarks, trade names, trade secrets, industrial
rights, and other proprietary rights therefor which a party may
own, or have the right to use or sublicense with respect to its
proprietary products or its business, even though they may not fall
within the common law definition of trade secrets.
(j) "Licensed Programs" shall mean the proprietary computer programs
identified in Exhibit A, as it may be amended from time to time;
and any and all new versions, new features, enhancements,
translations, Add-ons, Upgrades, and modifications developed by or
for SEEC with respect to such Licensed Programs, including without
limitation the Private Label Products. Licensed Programs also
include, without limitation: (i) diskettes encoded with SEEC's
proprietary computer programs in executable form; (ii) all related
user documentation in all available languages; (iii) any authorized
copies of such items; and (iv) any hardware or software security
devices or security codes. Licensed Programs do not include New
Product Derivatives, or products that do not address the COBOL
maintenance market. Source code is not included within the term
Licensed Programs.
(k) "Maintenance Agreement" shall mean the agreement entered into
between VIASOFT and any End User whereby VIASOFT agrees to provide
Maintenance and Support Services to such End User.
(l) "Maintenance and Support Services" shall mean services provided
pursuant to Exhibit B attached hereto.
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(m) "New Product Derivatives" shall mean products that consist of the
Application Capture tool, the Application Dictionary and some of
the analysis features of the Application Analyst tool. A New
Product Derivative will not be similar to COBOL Analyst in
functionality or look and feel, and the end use for any New Product
Derivative will not be COBOL application maintenance. New Product
Derivatives are not included within the scope of this Agreement.
Private label versions of the Licensed Programs are derivatives
which are included within the scope of this Agreement.
(n) "Object Code" shall mean the compiled or assembled machine language
representation of a sequence of computer instructions.
(o) "Private Label Products" means those Licensed Programs which are
modified by SEEC pursuant to Sections 5 (c), 5(d) and 8 for
distribution by VIASOFT
(p) "Sale" or "Sell" means the licensing of a unit of the Licensed
Programs. It does not mean the transfer of any ownership rights in
the copyrighted technology in any unit of the Licensed Programs.
(q) A "Seat" means one personal computer, located at one physical site.
(r) "SEEC Bankruptcy" means (i) SEEC has ceased doing business, or (ii)
SEEC has filed a petition seeking relief under the bankruptcy laws,
or (iii) SEEC has had filed against it a petition for involuntary
bankruptcy and has not obtained dismissal of such petition within
sixty (60) days after the filing thereof, or (iv) Section 365 of
the U.S. Bankruptcy Code (or any successor or replacement statute)
has become applicable to SEEC or its assets or business, or (v) a
general receiver or trustee is appointed for SEEC or its business
or assets for the benefit of its creditors, or SEEC makes a general
assignment, composition or other arrangement for the benefit of
creditors.
(s) "SEEC Customer" is any business, person or entity listed on Exhibit
D (and any successor or assign thereof whose name and address have
been provided to VIASOFT) provided such Exhibit D is signed by both
parties.
(t) "Site License" means an End User License Agreement to use any
Licensed Program(s) by an unlimited number of users who are
physically located at a single specified site.
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(u) "Sub-Distributor" shall mean any subsidiary or branch of VIASOFT,
whether wholly or partially owned, or any other organization or
individual authorized by VIASOFT to sublicense the Licensed
Programs to End Users according to the terms of this Agreement.
(v) "Upgrades" means new releases of the Licensed Programs that contain
maintenance, enhancements or new features which SEEC develops and
releases from time to time, and which include improvements and
enhancements of current functionality. For purposes of this
Agreement, "Upgrades" do not include products that do not address
the COBOL maintenance market.
(w) "VIASOFT Bankruptcy" means (i) VIASOFT has ceased doing business,
or (ii) VIASOFT has filed a petition seeking relief under the
bankruptcy laws, or (iii) VIASOFT has had filed against it a
petition for involuntary bankruptcy and has not obtained dismissal
of such petition within sixty (60) days after the filing thereof,
or (iv) Sections 365 of the U.S. Bankruptcy Code (or any successor
or replacement statute) has become applicable to VIASOFT or its
assets or business, or (v) a general receiver or trustee is
appointed for VIASOFT or its business or assets for the benefit of
its creditors, or VIASOFT makes a general assignment, composition
or other arrangement for the benefit of creditors.
(x) "VIASOFT Customer" is any business, person or entity listed on
Exhibit D (and any successor or assign thereof whose name and
address have been provided to SEEC) provided such Exhibit D is
signed by both parties.
2. Appointment.
(a) SEEC hereby grants to VIASOFT and VIASOFT accepts from SEEC a
worldwide license to, directly or through Sub- Distributors: (i)
market or have marketed sublicenses to End Users for use of the
Licensed Programs; (ii) use, without charge or royalty, the
Licensed Programs to demonstrate and teach the same to prospective
End Users; (iii) use, without charge or royalty, the Licensed
Programs to perform Final Beta Tests of Licensed Programs and all
of VIASOFT's required installation, Maintenance and Support
Services obligations under this Agreement; and (iv) reproduce,
without charge or royalty, copies of the evaluation versions of the
Licensed Programs in Object Code form to market, install,
demonstrate, teach, maintain or support the Licensed Programs as
permitted under this Agreement.
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(b) Subject to Section 2(c) of this Agreement, the rights and licenses
granted to VIASOFT pursuant to Section 2 (a) (the "Rights") shall
be exclusive or nonexclusive as hereinafter set forth:
1. Subject to Sections 2(b)3, 2(b)4, and 2(b)5 of this Agreement,
the Rights shall be exclusive during the eighteen (18) month
period commencing on the Commencement Date (the "Exclusivity
Period"). For so long as exclusivity remains in effect in the
Exclusivity Period, VIASOFT shall make Advances, as set forth in
Section 4 (c).
2. The parties may, from time to time, by mutual agreement, extend
the Exclusivity Period, in which event the term Exclusivity
Period as used in this Agreement shall be deemed to include all
such extensions, and all rights and obligations of the parties
that apply to the Exclusivity Period shall also apply to all
such extensions:
3. Notwithstanding exclusivity of the Rights during the Exclusivity
Period,
(i) SEEC shall have the reserved right to market, sell,
license and transfer Licensed Programs directly through its
own efforts to any potential End Users, other than VIASOFT
Customers, for use in the United States, Canada, Germany,
Spain, Benelux or India provided that SEEC gives VIASOFT at
least six (6) months prior written notice of SEEC's
intention to sell directly in Germany, Spain or Benelux,
and
(ii) the Rights shall be nonexclusive in the territories
identified on Exhibit C (the "Nonexclusive Territories) for
so long as SEEC's agreements with the existing distributors
listed on Exhibit C (the "SEEC Distributors"), and any
contractually required renewals of the same, remains in
effect, provided however that SEEC shall not otherwise
market, sell, license or transfer Licensed Programs
directly or to or through any third party (except only to
the SEEC Distributors for remarketing in the Nonexclusive
Territories) during the Exclusivity Period.
4. If, during the Exclusivity Period, VIASOFT otherwise has the
right to terminate this Agreement under Section 16 due to a
Material Default defined
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as such in Exhibit B, then VIASOFT shall have the right (in
addition to its rights under Section 16) to convert the Rights
from exclusive to non-exclusive and, upon such conversions by
written notice to SEEC, any obligation to pay future Advances
shall terminate effective as of VIASOFT's election.
5. If, during the Exclusivity Period, SEEC otherwise has the right
to terminate this Agreement under Section 16, SEEC shall have
the right (in addition to its rights under Sections 16) to
convert the Rights from exclusive to nonexclusive by written
notice to VIASOFT, upon the receipt of which any obligation of
VIASOFT to pay future Advances shall terminate.
(c) 1. During the Exclusivity Period, VIASOFT agrees not to promote or
distribute, directly, indirectly or through Sub-Distributors,
any products that compete directly on any stand-alone PC/LAN
platform with Licensed Programs that SEEC has delivered to
VIASOFT for distribution (collectively, "Competing Products").
2. After the Exclusivity Period, and while this Agreement is in
effect,
(A) If VIASOFT builds a Competing Product, VIASOFT will, at
least six (6) months before it begins to promote or distribute,
directly, indirectly or through Sub-Distributors, such Competing
Product, inform SEEC in writing in sufficient detail to enable
SEEC to evaluate VIASOFT's intentions, in which event, SEEC will
have the absolute right, at its sole discretion, to terminate
this Agreement, by written notice of termination, within twelve
(12) months following VIASOFT's written notice of intent to
promote or distribute a Competing Product, with such termination
to be effective not earlier than six (6) months after such
notice of termination by SEEC.
(B) If VIASOFT directly or indirectly acquires the right to
distribute a Competing Product (other than by building such a
Product), at least thirty (30) days before VIASOFT begins to
distribute such Competing Product, VIASOFT will inform SEEC in
writing in sufficient detail to enable SEEC to evaluate
VIASOFT's intentions, in which event, SEEC will have the
absolute right, in its sole discretion, to terminate this
Agreement, by written
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notice of termination, within twelve (12) months following
VIASOFT's written notice described herein, with such termination
to be effective not earlier than ninety (90) days after such
notice of termination by SEEC.
(C) Within thirty (30) days of each anniversary of the
Commencement Date after the twelve month periods described in
(A) and (B) above, if VIASOFT is then promoting or distributing
a Competing Product directly or indirectly, SEEC may terminate
this Agreement by delivering written notice of termination to
VIASOFT by such anniversary date, and any such termination
notice so given shall be effective no earlier than six (6)
months after such anniversary date.
3. For purposes of this Section 2 (c), in the event of (i) a Change
in Control of VIASOFT and the resultant entity, directly or
indirectly, promotes or distributes a Competing Product at any
time after such Change in Control, or (ii) VIASOFT acquires a
company that promotes or distributes, directly or indirectly, a
Competing Product after such acquisition, then VIASOFT shall be
deemed to be promoting or distributing a Competing Product. With
respect to a transaction described in the preceding sentence (a
"Competing Product Company Acquisition"), VIASOFT agrees to
provide SEEC written notice in reasonable detail when VIASOFT
becomes aware that a Competing Product Company Acquisition is
about to occur (i.e., when VIASOFT or its shareholders sign a
preliminary agreement pursuant to which a closing for a
Competing Product Company Acquisition is contemplated) and to
keep SEEC informed with respect to whether the same occurs.
(d) SEEC represents and warrants that it has not and will not authorize
the SEEC Sub-Distributors to distribute any Licensed Programs
outside of their respective Nonexclusive Territories, either
directly or through third parties.
(e) Notwithstanding any other provision of this Agreement, during the
Exclusivity Period, SEEC shall not solicit, market, sell, license
or transfer Licensed Programs directly, or to or through any third
party, to VIASOFT Customers without VIASOFT's prior written consent
in its sole discretion.
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(f) The rights and licenses granted to VIASOFT pursuant to this
Agreement are for distribution of the Licensed Programs on a
"private label" basis only; VIASOFT shall not have the right to use
any trademark, service ▇▇▇▇ or trade name of SEEC without its prior
written consent except for use of names in the context of providing
copyright notices on the Licensed Programs or SEEC Materials or
VIASOFT Materials. VIASOFT shall have the right to select its
private labels for the Licensed Programs, with SEEC's consent,
which will not be unreasonably withheld or delayed, and for such
purpose, SEEC shall be deemed to have approved any submitted
private label if VIASOFT has not received a written objection
thereto within twenty (20) days after SEEC's receipt of a written
request for approval of such private label.
(g) The relationship between SEEC and VIASOFT shall be that of
independent contractor; no joint venture, principal- agent,
employer-employee, partnership, or similar arrangement shall exist
between them, and neither party has, nor will represent it has, any
power or right to, and shall not attempt to, expressly or by
implication, incur any liability on behalf of the other or in any
way pledge the other's credit or accept any order or make any
contract binding upon the other or otherwise bind the other in any
way or hold itself out as an agent or employee of the other.
(h) 1. During the twelve (12) month period following the purchase
within a twelve (12) month period by a VIASOFT customer Site of
at least $10,000 of Licensed Programs (a "Protected Customer"),
SEEC shall not, without VIASOFT's prior written consent in its
sole discretion, solicit, market, sell, license or transfer
Licensed Programs directly to such Protected Customer, provided
that (1) VIASOFT gives SEEC appropriate documentation which
identifies such Protected Customers, and (ii) SEEC will have the
right to verify such information by audit of VIASOFT
Notwithstanding the foregoing, no VIASOFT customer site may
become a Protected Customer if any of the following occur: (1) a
Change in Control of VIASOFT has occurred, (2) VIASOFT is
promoting or distributing a Competing Product, (3) VIASOFT is in
material default under this Agreement and has not cured such
default within the applicable cure period, (4) a VIASOFT
Bankruptcy has occurred, (5) VIASOFT has not met the performance
requirements set forth in Section 16(g) as of the relevant
measuring date, or (6)
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such customer site has previously been designated as a Protected
Customer under this Section 2 (h).
2. Section 2(e) above is wholly independent from this Section 2
(h). In addition, this Section 2 (h) shall not apply to any
SEEC Customer.
3. End User Sublicense Agreement.
(a) Subject to Sections 5(a) and 10(d), VIASOFT or its Sub-
Distributor, as applicable, shall enter into an End User Sublicense
Agreement with each End User prior to delivery of any Licensed
Programs to such End User, or alternatively shall deliver the
Licensed Program(s) to the End User with a "shrink wrap" End User
sublicense agreement in substantially the form attached hereto as
Exhibit E (or such other form as VIASOFT elects to use, with SEEC's
consent which shall not be unreasonably withheld or delayed).
(b) VIASOFT shall be free to establish and alter the prices and pricing
arrangements to its End Users and Sub-Distributors as it determines
in its sole discretion.
4. VIASOFT Royalties and Taxes.
(a) VIASOFT shall pay to SEEC royalties ("VIASOFT Royalties") for
Licensed Programs and New COBOL Maintenance Products sublicensed to
End Users or sold to Sub-Distributors as follows:
The amount of the VIASOFT Royalties shall equal the sum of License
Royalties and Maintenance Royalties, as defined in (i) and (ii)
below:
(i) "License Royalties" shall be the License Fee Rate (as
defined below) multiplied times VIASOFT's actual,
contractually agreed sublicense price to the End User or
Sub-Distributor as applicable, for any Licensed Program, but
not less than the amounts set forth in (iii) below. The
"License Fee Rate" shall equal thirty percent (30%) until
VIASOFT Royalties of $2,000,000 have accrued, and thereafter
shall be twenty-five percent (25%), or the minimum royalty
set forth in Section 4 (a) (iii) below, if higher.
For purposes of determining the License Fee Rates for "New
COBOL Maintenance Products", as defined in the following
sentence, such License Fee Rates shall be the rates
determined as Set forth above, provided that
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for purposes of such determination, VIASOFT Royalties shall
be assumed to include only such Royalties as relate solely
to sale and maintenance of that New COBOL Maintenance
Product. A "New COBOL Maintenance Product" means a new
product within the Cobol Analyst Product Line that
addresses the Cobol Maintenance market, and Add-ons, (i)
which has significantly different functionality than the
Licensed Programs, not a porting of Licensed Programs to
new platforms, and that represents new revenue opportunity,
and (ii) which exceeds a total of 10 man years in design,
development and testing by SEEC (or its
subcontractor/developers), including without limiting the
generality of the foregoing, time invested by SEEC (or its
subcontractor/ developers) in beta testing.
(ii) "Maintenance Royalties" shall be thirty percent (30%)
of the applicable maintenance fees which VIASOFT invoices
under Maintenance Agreements.
(iii) Notwithstanding (i) above, the minimum amount of
License Royalties for Licensed Programs shall depend on the
current US Domestic Published List Price and the current
License Fee Rate in effect for that month. For purposes of
this Section 4, "Sub-Distributor" shall mean only those
Sub-Distributors in which VIASOFT has no ownership interest
or management control. The minimum royalty amount will be
computed as shown in the following table:
(1) Royalty Minimums for bundled COBOL
Analyst:
COBOL Analyst (Without ADW Export) Sales or Sublicense by
VIASOFT
U.S. Domestic Published List Price Minimum Royalty
$2,500 or more $400
$2,000 - $2,499 $350
$1,500 - $1,999 $300
COBOL Analyst (Without ADW Export) sales by VIASOFT
Sub-Distributors
U.S. Domestic Published List Price* Minimum Royalty
$2,500 or more $225
$2,000 - $2,499 $200
$1,500 - $1,999 $175
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(2) Royalty minimums for the server version of the\
product will be calculated as follows (above table
multiplied by 2):
COBOL Analyst Server Version Sales or Sublicense by VIASOFT
U.S. Domestic Published List Price* Minimum Royalty
$5,000 or more $800
$4,000 - $4,999 $700
$3,000 - $3,999 $600
COBOL Analyst Server Version Sales by VIASOFT
Sub-Distributors
U.S. Domestic Published List Price* Minimum Royalty
$5,000 or more $450
$4,000 - $4,999 $400
$3,000 - $3,999 $350
(3) Minimum Royalties for Bundled COBOL Analyst with
ADW Export (REW/ADW) will be calculated as follows
(table in 1 multiplied by 3):
COBOL Analyst (With ADW/Export) Sales by VIASOFT
U.S. Domestic Published List Price* Minimum Royalty
$7,500 or more $1200
$6,000 - $7,499 $1050
$4,500 - $5,999 $900
COBOL Analyst (With ADW/Export) Sales by VIASOFT
Sub-Distributors
U.S. Domestic Published List Price Minimum Royalty
$7,500 or more $675
$8,000 - $7,499 $600
$4,500 - $5,999 $525
* The List Price is the US Domestic Bundled List Price then
in effect for the described product.
(4) If the actual sale is not of the bundled product
but the base product plus options, then the
minimum royalty for that sale will be calculated
as follows:
Total U.S. Published
List Price of the base
and/or applicable Add-ons Minimum Royalty
and options purchased for the Bundled
--------------------------- X Product (as
Bundled U.S. Published determined above)
List Price for that product
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(5) A Site License will require the actual royalties
as computed in Section 4(a)(i), or minimum
royalties to be paid for 90 Seats of the product,
whichever is higher.
Notwithstanding the foregoing, computation of VIASOFT Royalties
shall be based on the actual:
o sublicense price charged by VIASOFT to End
Users or
o the price charged by VIASOFT to its Sub-
Distributors
before computation and application of any taxes, duties, charges or
withholdings of any nature imposed by any government authority that
increase or decrease the total monies to be received by VIASOFT as
a result of the sale, whether or not such amount is received or
paid by VIASOFT, a government authority, end-user or
sub-distributor.
VIASOFT shall be entitled to deduct from VIASOFT Royalties
otherwise playable any amounts for which VIASOFT issues a refund or
credit in exchange for the return to VIASOFT of any copies of
Licensed Programs (or of copies of VIASOFT's software containing
any Licensed Programs).
(b) 1. VIASOFT shall pay all License Royalties to SEEC within sixty
(60) days of the end of the month in which VIASOFT invoices the
End Users or Sub- Distributors for transactions to which VIASOFT
Royalties apply. VIASOFT shall pay all Maintenance Royalties
within ninety (90) days of the end of the month in which VIASOFT
invoices the End User or Sub-Distributor. With all royalty
payments, VIASOFT shall provide SEEC with a written report
detailing all invoice numbers by categories and geographic
regions, and such other information as may reasonably be needed
to ascertain how the amount of the royalty payment was
calculated.
2. SEEC shall perform such calculations as it deems appropriate to
confirm the accuracy of the amount of VIASOFT's payment and
shall advise VIASOFT within thirty (30) days after receipt of
such payment and the related written report described above of
any discrepancies in such amounts based upon the information
VIASOFT provided to SEEC. In the event SEEC identifies any
discrepancies, the parties shall promptly confer and determine
the
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proper amount payable by mutual agreement, and VIASOFT or SEEC,
as applicable, shall remit to the other the amount of any
underpayment or overpayment, as applicable, within five (5) days
of such mutual determination. Section 9(d) of this Agreement
shall not apply to any shortfall due to calculation errors that
should have been discovered pursuant to the review procedure set
forth in this Section 4(b)2.
(c) For the Exclusivity Period, VIASOFT shall pay to SEEC minimum
VIASOFT Royalties (each an "Advance") as follows: For each of the
first nine (9) months during such Period, each Advance shall equal
$40,000, and for each additional month during such Period, the
amount of each Advance shall be $60,000. No Advances shall be
required for any month after which VIASOFT or SEEC exercises its
right under Sections 2(b)4 or 2(b)5 to relinquish or convert
exclusivity. The initial Advance shall be made on the Commencement
Date and each payment thereafter shall be made on or before the
monthly anniversary thereafter of the Commencement Date for so long
as such Advances are due. Each payment shall constitute an advance
of future VIASOFT Royalties to the extent that such payments do not
include VIASOFT Royalties already earned and payable pursuant to
Section 4(a) above. Earned VIASOFT Royalties shall be credited
against the Advances until the amount of the Advances has been
fully earned by SEEC, at which time payments pursuant to the first
sentence of Section 4(b) shall commence. Unearned Advances shall be
nonrefundable except as follows:
1. If this Agreement is terminated by VIASOFT due to a "Material
Default" by SEEC as defined under Exhibit B, SEEC shall repay to
VIASOFT an amount equal to one half of the unearned Advances in
twelve (12) equal monthly payments commencing thirty (30) days
after the termination is effective.
2. If this Agreement is terminated by VIASOFT due to any other
material default by SEEC under this Agreement, SEEC shall repay
to VIASOFT an amount equal to all of the unearned Advances in
twelve (12) equal monthly payments commencing thirty (30) days
after the termination is effective.
(d) SEEC warrants to VIASOFT that the rates and terms under this
Agreement concerning the licensing or remarketing of the Licensed
Programs do not exceed those offered by SEEC to any other
distributor or licensee. SEEC agrees that
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if, while. this Agreement is in effect, SEEC enters into an
agreement with any other distributor or licensee for distribution
rights with respect to Licensed Programs, SEEC shall, within
fifteen (15) days of entering into such agreement provide to
VIASOFT a copy of the written agreement, or a complete and accurate
written summary of all terms of such agreement if such agreement is
oral, or a written summary prepared by a mutually acceptable third
party, provided that a senior SEEC officer certifies in writing to
VIASOFT that such written summary is complete and accurate. VIASOFT
shall then have the right to determine whether the terms and
conditions of such agreement are more favorable than under this
Agreement and, at its election, all reasonably applicable terms and
conditions shall apply to this Agreement effective as of the date
of VIASOFT's election. At SEEC's written request, any copy or
summary of an agreement provided to VIASOFT by SEEC pursuant to
this Section shall be deemed to be Confidential Information of SEEC
subject to Section 14 hereof.
(e) Royalties that are not paid within ten (10) days of the due date
will carry interest at the rate of 1% per month.
5. Product Rollout; Market Introduction.
(a) Upon execution of this Agreement, SEEC will provide to VIASOFT a
reasonable number of copies of (i) SEEC's current collateral and
documentation for the Licensed Programs, including without
limitation hard copy and machine readable text, original artwork
(mechanicals), sales and customer training materials, and PC Demo's
(collectively, the "SEEC Materials"), and (ii) the Licensed
Programs in the then current version. SEEC will thereafter provide
to VIASOFT a reasonable number of copies of any new or additional
SEEC Materials developed by or for SEEC as soon as the same become
available. SEEC hereby grants to VIASOFT, and VIASOFT hereby
accepts, a license to use and distribute the SEEC Materials,
including the right to modify, amend and make derivative works of
the SEEC Materials, without charge or royalty, during the term of
and for the purposes of this Agreement. If VIASOFT modifies or
amends the SEEC Materials to the extent that the revised materials
constitute "derivative works" pursuant to Section 101 of the
federal Copyright Act (17 U.S.C. Section 101), VIASOFT has the
right to register its copyright in the derivative work and label
the new materials with a proper copyright notice with VIASOFT as
the owner. Should VIASOFT materials substantially copy any SEEC
materials, VIASOFT shall affix proper copyright notice denoting
SEEC's
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ownership and copyright in addition to any VIASOFT copyright
notice. Upon delivery of SEEC Materials to VIASOFT, SEEC shall
inform VIASOFT of the proper copyright notice to be used in
connection with any materials to which SEEC's copyright is to be
affixed.
(b) Promptly upon receipt of the SEEC Materials, VIASOFT shall develop,
at its cost, product documentation, sales and other collateral
materials for use in using and promoting the Licensed Programs (the
"VIASOFT Materials"). The VIASOFT Materials shall include such
items as VIASOFT deems necessary or helpful in the sales effort,
and may include, without limitation, collateral pieces,
documentation, training courses, direct mail, press releases, and
materials in support of activity at trade shows, seminars, and
special promotions. Should VIASOFT materials substantially copy any
SEEC materials, VIASOFT shall affix proper copyright notice
denoting SEEC's ownership and copyright in addition to any VIASOFT
copyright notice.
(c) SEEC will update and deliver to VIASOFT the Licensed Programs
within fifteen (15) days following the Commencement Date to reflect
VIASOFT' 5 private labelling, in form and substance as reasonably
requested by VIASOFT These private labelling activities will
include inserting the name of the product, modifying specified
terminology and modifying the presentation of certain screens. Any
of SEEC's work done in connection with Private Label Products shall
not be deemed to be "works for hire" but will be considered as part
of SEEC's license to VIASOFT.
(d) Subject to Section 8, VIASOFT will runs the relevant portions of
the Licensed Programs through VIASOFT's proprietary COBOL Parser
Validation Suite of COBOL programs (the "COBOL Parser Validation
Suite"), which contains ten years of accumulated VIASOFT know-how,
within fifteen (15) days after receipt of the Licensed Programs and
provide SEEC with a comprehensive, prioritized list of product bugs
within fifteen (15) days after the later of such testing or the
Commencement Date. VIASOFT agrees to provide technical consultation
to SEEC to help in the resolution of such bugs, as mutually agreed.
SEEC agrees to use Best Efforts to fix all product bugs that are
reasonably identified by VIASOFT as being necessary to make the
Licensed Programs marketable to VIASOFT's customers, such fixes to
be made pursuant to a schedule that is mutually determined by the
parties.
(e) (i) Within fifteen (15) days after the Commencement Date, SEEC
shall deliver to VIASOFT such number as VIASOFT reasonably requests
of diskettes containing the
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evaluation versions of the Licensed Programs updated as required by
Sections 11.6 of Exhibit B, and (ii) thereafter shall similarly
deliver replacement diskettes containing the evaluation versions of
the Licensed Programs as set forth in Section 11.6 of Exhibit B.
VIASOFT may make an unlimited number of distribution copies of the
evaluation versions of the Licensed Programs from these diskettes.
Evaluation versions of the Licensed Programs are copies, the
usability of which is limited by time or size limitations
(presently such versions have an upper limit of 100,000 lines of
COBOL source code).
(f) In addition, (i) within fifteen (15) days after the Commencement
Date, SEEC shall deliver to VIASOFT such number as VIASOFT
reasonably requests of diskettes containing the Licensed Programs
updated as required by Section 11.6 of Exhibit B and, (ii)
thereafter, shall similarly deliver replacement diskettes
containing the Licensed Programs which have been modified, updated
or enhanced pursuant to Exhibit B. VIASOFT shall have the right to
make, and distribute pursuant to Section 2, distribution copies of
the Licensed Programs from these diskettes in the event that SEEC
does not provide VIASOFT with a reasonable number of diskettes
pursuant to Section 5 (g) below within thirty (30) days from
VIASOFT's request therefor.
(g) SEEC shall deliver to VIASOFT such number of defect- and virus-free
diskettes containing Licensed Programs, as labelled and upgraded
pursuant to this Section 5, as VIASOFT reasonably requests from
time to time in order to maintain an adequate inventory of Licensed
Programs. An adequate inventory shall initially be 200 copies of
each Licensed Program, and thereafter SEEC shall replenish such
inventory in quantities of at least fifty (50) units per delivery
to restore VIASOFT's inventory to the higher of 200 copies or the
sum of VIASOFT's monthly sales levels of such Licensed Programs for
each of the immediately preceding three (3) months. SEEC shall use
such virus detection programs to test the diskettes to be delivered
as are reasonably acceptable to VIASOFT SEEC shall provide VIASOFT
at the time of each delivery of diskettes pursuant to this Section
with the written certifications of an officer of SEEC, in form and
substance satisfactory to VIASOFT, to the effect that all diskettes
in such delivery for any Licensed Program are defect-free,
identical (except for serial numbers) and virus-free.
(h) SEEC shall pay all costs of shipping and applicable taxes, duties
and other charges relating to bulk
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shipments of materials ordered by and delivered to VIASOFT under
this Agreement. All materials sent to VIASOFT shall be sent to its
notice address as specified in or pursuant to Section 18 hereof.
VIASOFT will provide SEEC with appropriate sales/use tax exemption
certificates for goods purchased for resale.
(i) VIASOFT shall be responsible for publication and delivery of
Private Label Product documentation and SEEC-furnished diskettes to
Sub-Distributors and End Users.
(j) With such assistance from SEEC as is mutually agreed, VIASOFT will
establish a special telesales function for domestic sales.
(k) Attached hereto as Exhibit G is VIASOFT's initial marketing plan
for commencing distribution of the Licensed Programs, which SEEC
has approved. Such plan represents VIASOFT's good faith present
intentions, and does not constitute a contractually binding
obligation or any guarantee of performance.
(l) At no cost to VIASOFT, SEEC shall provide to VIASOFT during the
first three (3) months of the term of this Agreement the following
assistance, as requested by VIASOFT: (i) five (5) person-days of
on-site support by SEEC's best telesales person, (ii) five (5)
person-days of support by SEEC's best direct sales person, such
support to be provided on-site, in Phoenix, Arizona, or by
telephone, as requested by VIASOFT, (iii) ten (10) person-days of
on-site assistance by SEEC's best customer support person, and (iv)
ten (10) person-days of on-site assistance by SEEC's best
technician. Within six (6) months thereafter, at VIASOFT's request,
SEEC shall provide to VIASOFT, by telephonic conference or at
SEEC's location (at VIASOFT's election), an additional five (5)
person-days of support by the persons described in each of (i)
through (iv) above. Assistance provided pursuant to this Section
5(1) need not be contiguous in time, and the particular scheduling
in each instance shall be subject to mutual agreement of the
parties.
(m) Intentionally deleted.
(n) SEEC shall have the right, at its expense, to build into the
Licensed Programs such security devices as SEEC and VIASOFT
mutually agree upon.
(o) SEEC may at its option from time to time during the term of this
Agreement and subject to the availability of SEEC personnel, render
to VIASOFT such other reasonable commercial and technical
assistance in connection with
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VIASOFT's support and marketing of the Licensed Programs, including
sending SEEC personnel to assist VIASOFT with the marketing of the
Licensed Programs, at such charges and other terms as are mutually
agreed to by the parties.
(p) Except as expressly provided otherwise in this Agreement, neither
party shall have any responsibility for the travel, lodging, meal
and other expenses incurred by the other party or its employees in
connection with this Agreement.
6. Intentionally deleted.
7. Changes, Developments and Quality Control.
(a) SEEC reserves the right to change the Licensed Programs or any of
its related technical or marketing materials at any time. SEEC
agrees to keep VIASOFT informed of and to issue to VIASOFT as part
of the Licensed Programs all corrections, modifications,
enhancements, Add-ons and Upgrades to the Licensed Programs as
provided in Exhibit B attached hereto.
(b) Exhibit F attached hereto sets forth the parties' intentions with
respect to further development, testing procedures and quality
control procedures concerning the Licensed Programs and certain
limited obligations of SEEC set forth therein.
8. VIASOFT COBOL Parser Validation Suite Services.
(a) In additions to providing the COBOL Parser Validation Suite
services described in Section 5(d) above, VIASOFT may run each new
release of Licensed Programs during the term of this Agreement
through a sample of the COBOL Parser Validation Suite in order to
validate the product release. At SEEC's request, VIASOFT will
provide to SEEC a list of bugs generated from any such run. In
exchange for VIASOFT's COBOL Parser Validation Suite services
described in Section 5 (d), SEEC agrees to pay to VIASOFT a royalty
(the "SEEC Royalty") in the amount of five percent (5%) of all
amounts received by SEEC or any Affiliate of SEEC from any direct
or third party sales (other than by VIASOFT or its
Sub-Distributors) of any SEEC products or services that contain or
use any COBOL parsers for COBOL language as accepted by the IBM
OS/VS COBOL compiler for COBOL 68 and COBOL 74 language levels; for
COBOL language as accepted by IBM VS COBOL II compilers Release 1.0
through Release 4.0; and for COBOL language as accepted by IBM
COBOL/370 compilers, during the five (5) year period commencing on
the earlier to occur of (i) the first sale of COBOL Analyst Release
2.1
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containing elements as described in Phase IIA of Exhibit B attached
hereto or (ii) six months from the Commencement Date, up to a
maximum aggregate payment of One Million Dollars ($1,000,000),
provided, however, that in no event shall the SEEC Royalty be less
than $75 per product. At the end of such five (5) year term, if
SEEC has not paid to VIASOFT at least $100,000 in SEEC Royalties,
SEEC shall play to VIASOFT, in twelve (12) equal monthly payments
commencing immediately after such term the difference between
$100,000 and the amount of SEEC Royalties paid to VIASOFT prior to
the end of the five year term. Unless SEEC fails to pay the SEEC
Royalties, SEEC shall have the right to unlimited use of the
aforesaid disclosed know-how subject to Section 13 obligations not
to disclose such know-how to third parties. This right survives
termination of this Agreement. This provision shall not be
construed to prohibit or interfere with SEEC's right to develop,
copyright and market any product line that is or is not related to
the Licensed Programs, under any circumstances. VIASOFT shall have
no interest in any such related or unrelated products.
(b) SEEC shall pay the SEEC Royalty within sixty (60) days after the
end of the month in which invoices for transactions to which the
SEEC Royalty applies are sent. With all royalty payments, SEEC
shall provide VIASOFT with a written report detailing all invoice
numbers by categories and geographic regions, and such other
information as may reasonably be needed to ascertain how the amount
of the royalty payment was arrived at. Royalties that are not paid
within ten (10) days of the due date will carry interest at the
rate of 1% per month. SEEC's obligation to pay the SEEC Royalties
shall remain in full force and effect notwithstanding any
termination of this Agreement. SEEC may prepay its payment
obligations at any time under this Sections 8 without premium,
penalty or discount. VIASOFT, in its discretion, may offset against
VIASOFT Royalties the amount of any SEEC Royalties when such SEEC
Royalties become due and payable but remain unpaid, and VIASOFT
shall be deemed to have paid VIASOFT Royalties in the amount of
such offset.
(c) Notwithstanding any provision to the contrary in this Agreement,
SEEC shall retain the right during this Agreement and after its
termination to continue and update SEEC's COBOL parser validation
suite, and any such SEEC test suite shall be and remain the
exclusive property of SEEC, whether or not such SEEC suite utilizes
VIASOFT know-how and/or COBOL Parser Validation Suite Services
described in Section 5(d).
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9. Record Keeping; Audit Rights and Procedures.
(a) Each party hereby agrees that it shall keep full, true and accurate
records and books of account containing all particulars which may
be necessary for the purpose of showing the amounts payable to the
other party pursuant to this Agreement, and shall keep such records
and the supporting data for seven (7) years following the end of
the calendar year to which they pertain.
(b) From time to time during the term of this Agreement and thereafter
with respect to any payments due after termination or expiration of
this Agreement (but not more than once in any twelve month period),
an independent public accountant retained by a party may, upon
giving the other party reasonable notice, inspect and copy such
records and books of account for the sole purpose of verifying the
accuracy and completeness of payments required to be made under
this Agreement, provided such right to copy shall not include
customer names or addresses.
(c) Subject to the following sentence, the party for whom the record
inspection is conducted shall bear its own costs and expenses of
such inspection and copying.
(d) In the event it is determined that a party has underpaid amounts
due hereunder, such party shall promptly bring such payments
current and, in the further event that such payment shortfall
represents an underpayment of ten percent (10%) or more of the
amount due for the period in question, then such party shall
promptly reimburse the other party for one-half its reasonable
costs and expenses incurred in connection with determining and
resolving such shortfall.
(e) A party (or its independent accountants) shall have the right to
review and verify the calculations and other determinations of the
reviewing party's accountants.
10. Additional Undertakings by VIASOFT
VIASOFT undertakes and agrees with SEEC that it will at all times
during the continuance in force of this Agreement, and where applicable
following termination hereof, observe and perform the terms and
conditions set out in this Agreement and in particular:
(a) will at all times, if reasonably requested, join with SEEC, and
otherwise fully cooperate with SEEC, at the expense of SEEC, in any
proceedings necessary for the protection of SEEC's Intellectual
Property Rights in the
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Licensed Programs and will give notice to SEEC forthwith of any
circumstances coming to the knowledge of VIASOFT which it believes
might reasonably indicate an infringement of such rights.
(b) acknowledges that all Licensed Programs and all documents,
information and material related to such Licensed Programs and
Maintenance (hereafter, such Licensed Programs, and related
documents, information and materials shall be referred to
collectively as "Technical Data") are subject to United States
export controls pursuant to the Export Administration Regulations,
15 C.F.R. Parts 768-799. At all times VIASOFT shall comply with all
requirements of the Export Administration Regulations and all
licenses and authorizations issued thereunder with respect to all
such Technical Data;
(c) during the term of this Agreement, or during the twelve (12) month
period following termination or expiration of this Agreement, will
not, without SEEC's prior consent, directly or indirectly, employ
or solicit the employment of any person who, to VIASOFT's knowledge
at that time is, or was during the prior twelve (12) months, an
employee of SEEC or ERA.
(d) will, at its expense, take the same measures to protect SEEC's
copyright interests in the Licensed Programs outside of the United
States as VIASOFT takes with respect to VIASOFT's copyright
interests in its products that are distributed outside of the
United States, and in connections therewith VIASOFT will promptly
notify SEEC of any filing, registration, recording or other action
that VIASOFT takes with respect to its products in order to protect
its own copyright interests, and VIASOFT will assist SEEC to do so
as mutually agreed upon. Without limiting the foregoing, (i) the
copyright interests in the Licensed Programs shall receive the same
contractual protections as are provided to the copyright interests
in VIASOFT products under any applicable VIASOFT agreements with
Sub-Distributors; (ii) VIASOFT will not remove any copyright legend
affixed by SEEC to any Licensed Materials; (iii) VIASOFT will
require its Sub- Distributors not to remove any copyright legend so
affixed by SEEC; and (iv) VIASOFT will affix SEEC's copyright
legends as required by Section 5(a) of this Agreement.
(e) VIASOFT represents that to its knowledge this Agreement is
presently in compliance with all applicable laws, including without
limitation all antitrust, distribution, licensing and marketing
laws and regulations of the United States and each country in which
VIASOFT or its
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Sub-distributors will market the Licensed Programs. For so long as
VIASOFT has any rights to distribute Licensed Programs under this
Agreement, VIASOFT will comply, and will require its
Sub-Distributors who are distributing Licensed Programs to comply,
with all applicable laws, including without limitation all
antitrust, distribution, licensing and marketing laws and
regulations of the United States and each country in which VIASOFT
or its Sub-Distributor distributes Licensed Programs.
(f) Subject to the provisions of Section 21 (d), VIASOFT will indemnity
and hold SEEC harmless from any and all damages, claims, demands,
losses, costs, suits, judgments, penalties, expenses, and
liabilities of any kind whatsoever, that may occur, or for which
SEEC may become liable, including without limitation, reasonable
attorney's fees and the costs and expenses of litigation, that are
caused by (i) any action by VIASOFT or any Sub- distributor which
exceeds the License granted to VIASOFT in this Agreement, or which
is in breach of any of the provisions of Sections 2(c) (but not for
a breach described in the last sentence of Section 16 (c)), 10 (a),
10(c), 10(d), 14(a), 14(e)l, 14(e)3, 14(e)4, 14(i) and 14(k)
through (o) of this Agreement; (ii) any use of the Escrow Contents
by VIASOFT or any person who obtains the same from VIASOFT, which
use is not specifically authorized under the terms of this
Agreement; (iii) failure to comply with the provisions of Sections
10 (b), 10(e) and 10(g) of this Agreement; (iv) failure to comply
with the provisions of Section 10(h) and all its subparts; and (v)
any Sub-distributor acquiring rights (whether by operations of law
or otherwise) which rights are greater than the rights accorded to
VIASOFT under this Agreement.
(g) represents and warrants that VIASOFT's performance under this
Agreement does not and will not, with or without notice or the
passage of time, conflict with VIASOFT's corporate charter or
bylaws, any agreement with any person or entity, or any applicable
laws, rules, regulations, orders, judgments, or decrees of any
government or agency thereunder.
(h) VIASOFT shall not grant to any Sub-distributor any rights to market
Licensed Programs that are greater than VIASOFT's rights to market
Licensed Programs under this Agreement. VIASOFT shall provide in
its agreements with each its Sub-distributors who desires to market
Licensed Programs that such Sub-distributor's rights to market
Licensed Programs exist only for so long as VIASOFT has such rights
and shall automatically terminate when VIASOFT's marketing rights
terminate (except for the
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right to market existing inventory as specified in this Agreement)
without any liability on the part of SEEC for such termination.
11. Additional Undertakings by SEEC.
SEEC undertakes and agrees with VIASOFT that it will at all times
during the continuance in force of this Agreement, and where applicable
following termination hereof, observe and perform the terms and
conditions set out in this Agreement and in particular:
(a) (i) will provide Maintenance and Support Services such that SEEC
does not cause a "Material Default" as defined in Sections 12, 13
and 14 of Exhibit B, and (ii) will provide final beta test versions
to permit VIASOFT to run Final Beta Tests, as provided in Section 5
of Exhibit F and Section 11.1 of Exhibit B;
(b) will give to VIASOFT prompt notice, and one copy for VIASOFT
internal use only, of any Licensed Program enhancement, Add-ons,
Upgrade, modification, variation, suspension or elimination, bug
reports, and temporary program fixes, including without limitation
any new releases of any Licensed Program, in accordance with
Section 7 above and Exhibits B and F;
(c) will promptly make available to VIASOFT as it becomes available to
SEEC such information relating to the sale and marketing of the
Licensed Programs as SEEC considers in its sole discretion to be
important to VIASOFT's performance under this Agreement;
(d) represents and warrants that (i) SEEC and ERA own all Intellectual
Property Rights to the Licensed Programs free and clear of any
claims, liens or encumbrances, and that SEEC has obtained all
necessary authorizations from ERA to permit SEEC to execute,
deliver and perform this Agreement; (ii) the Licensed Programs and
SEEC Materials do not infringe any Intellectual Property Right of
any third party; (iii) the Licensed Programs are not intentionally
constructed to damage, interfere with, or otherwise adversely
affect, without the consent of the user of the Licensed Programs,
computer programming code, data files, or hardware; (iv) SEEC's
performance under this Agreement does not and will not, with or
without notice or the passage of time, conflict with SEEC's
corporate charter or bylaws, any agreement with any persons or
entity, or any applicable laws, rules, or regulations of the United
States, orders, judgments or decrees of any government or agency
thereunder; and (v)
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that the certificate of ERA attached hereto as Exhibit H is
accurate, complete and not misleading;
(e) SEEC shall make reasonable efforts to maintain during the term of
this Agreement such resources as are necessary to meet its
obligations under Exhibit B.
(f) during the term of this Agreement, or during the twelve (12) month
period following termination or expiration of this Agreement, will
not without VIASOFT's prior consent directly or indirectly employ
or solicit the employment of any person who, to SEEC's knowledge,
at that time is, or was during the prior twelve (12) months, an
employee of VIASOFT.
(g) during the term of this Agreement, or during the twelve (12) month
period following termination or expiration of this Agreement, will
not without VIASOFT's prior consent directly or indirectly use or
attempt to use, directly or indirectly, as a distributor, sales
representative or agent, any person or entity who, to SEEC's
knowledge, at that time is, or was during the prior twelve (12)
months, a distributor of VIASOFT.
12. Product Warranty.
(a) SEEC warrants that the Licensed Programs delivered to or for
VIASOFT will operate substantially in accordance with the
accompanying SEEC documentation for the Private Label Products, and
will be free from problems or errors which would materially affect
the performance of any Licensed Program in accordance with SEEC's
product documentation therefor. In case of breach of this limited
warranty or any other duty (other than under Section 5(g)) that
relates to the quality of a diskette, VIASOFT's remedies will be,
at VIASOFT's option: (i) correction of the diskette, or (ii)
replacement of the diskette. SEEC does not warrant that the
functions contained in the software will meet the requirements of
the end-user, or that the operation of the software will be
uninterrupted or error free. EXCEPT AS PROVIDED IN THIS AGREEMENT,
THE PRODUCTS WILL BE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND,
EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICUlAR
PURPOSE, AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF
THE PRODUCTS IS WITH THE USER WHO WILL BE LIABLE FOR THE ENTIRE
COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
(b) THERE ARE NO EXPRESS OR IMPLIED WARRANTIES BY SEEC TO VIASOFT, TO
VIASOFT'S SUB-DISTRIBUTORS, OR TO VIASOFT'S END USERS, OTHER THAN
THE WARRANTIES SPECIFIED IN THIS
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AGREEMENT. SEEC GIVES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING
ITS MAINTENANCE, SUPPORT OR DEVELOPMENT SERVICES OTHER THAN SUCH
OBLIGATIONS AS ARE SET FORTH IN EXHIBIT B, IF ANY.
(c) UNDER NO CIRCUMSTANCES WILL SEEC OR ITS AFFILIATES BE LIABLE FOR
ANY CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES ARISING OUT OF ANY
BREACH OF WARRANTY UNDER THIS SECTION 12.
(d) In making proposals to End Users, VIASOFT will use commercially
reasonable efforts to inform the End User of all technical and
other requirements necessary for the proper functioning of the
Licensed Programs.
13. Confidentiality.
(a) The parties agree to keep confidential all technical and commercial
information which either party may designate to the other in
writing as confidential ("Confidential Information"), unless any
such information is published without restriction and in the public
domain. This obligation to keep information confidential shall
include proprietary information even though it may not fall within
the common law (or statutory) definitions of trade secrets, so long
as the party providing the information designates it as
confidential, and such information or data is not in the public
domain. Without limiting the foregoing, the parties agree that the
following constitute "Confidential Information" of the party owning
or providing the same, as applicable: (i) Escrow Contents; (ii) any
list of recommendations or fixes provided by VIASOFT in connection
with COBOL Parser Validation Suite services; (iii) VIASOFT Customer
identities; (iv) VIASOFT's Protected Customers (provided that this
Section 13 shall not preclude SEEC from exercising marketing rights
with respect to Protected Customers as permitted under Section 2
(h)); and (v) SEEC Customer identities. The parties agree that they
will not use Confidential Information of the other party for any
purpose other than as allowed under this Agreement, and that they
will not reproduce or disclose such Confidential Information to any
other person or firm, except as allowed in this Agreement or on the
following terms:
1. Either party may disclose Confidential Information, except
source code, to third parties to whom disclosure is made for the
purpose of this Agreement and who have agreed in writing to keep
such Confidential Information confidential;
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2. Either party may disclose the Confidential Information to those
of its employees who have a need to know the Confidential
Information for the purpose of their job; and
3. Each party will label each copy of Confidential Information as
confidential and proprietary in accordance with such party's
standard procedures; and
4. Each party agrees to use the same degree of care as such party
uses to prevent the disclosure of its own Confidential
Information, but in no event shall such degree of care be less
than reasonable and appropriate for the protection of
proprietary information and trade secrets, together with any
additional safeguards required for confidentiality as set forth
in this Agreement; and
5. The parties agree that any release of Confidential Information
to employees shall be only to their employees who have a need to
know the Confidential Information for the purpose of their jobs.
In addition, VIASOFT agrees not to release any Confidential
Information received by it pursuant to Exhibit F to any other
VIASOFT employees who are members of a development team working
on any product competitive with any Licensed Program to which
such Confidential Information relates.
6. Neither party shall be required to keep confidential any
Confidential Information which is:
a. within, or later falls within, the public domain without
breach of this Agreement by the other party; or
b. rightfully known to such party prior to any disclosure by
the other party; or
c. rightfully available or becomes rightfully available to one
of the parties from a source other than the other party or
other than from the escrow custodian for the source/object
codes for the Licensed Programs under the provisions of
Section 15 of this Agreement, provided however, that the
party to which the Confidential Information is or becomes
rightfully available trust reasonably expect that such
source has an unrestricted right to disclose the same to
such party.
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7. Upon any termination of this Agreement, or within thirty (30)
days after a written request from one party to the other for the
return of the requesting party's Confidential Information, the
other party shall either (i) return to the requesting party, or
(ii) certify in writing to the requesting party the destructions
of all Confidential Information except Confidential Information
which is necessary to carry out the provisions of this Agreement
which survive any such termination.
8. Notwithstanding any other provision of this Agreement to the
contrary, the parties hereby agree that the terms and conditions
of this Agreement (as distinct from the fact of this Agreement)
are Confidential Information of each of them, and that such
terms and conditions shall not be disclosed except to the
following persons provided the recipients take such Confidential
Information subject to the same use and disclosure restrictions
as apply to the parties hereunder: a party's officers,
directors, shareholders, employees, attorneys, auditors,
financial advisors, lenders, bona fide potential investors of a
significant amount of capital in such party, and bona fide
potential purchasers of such party, all on a "need to know"
basis. SEEC agrees not to disclose such terms and conditions to
Compuware unless Compuware is negotiating in good faith to
purchase more than fifty percent (50%) of SEEC's stock or
business. The parties agree to issue a joint press release
announcing this Agreement, which press release shall be mutually
acceptable.
9. SEEC agrees not to disclose to any third party any deficiency in
a Private Label Product that does not exist in the non-Private
Label Product version of the Licensed Program (i) if VIASOFT
requests, within thirty (30) days of being apprised of such
deficiency by SEEC, that SEEC cure such deficiency, or (ii) if
SEEC has not informed VIASOFT of such deficiency.
14. Intellectual Property Rights; Indemnities.
(a) Any ownership rights, marketing rights, title or other rights to
products now or in the future belonging to SEEC shall remain vested
in SEEC. Any ownership rights, marketing rights, title or other
rights to products now or in the future belonging to VIASOFT shall
remain vested in VIASOFT, except as provided in Sections 14(b)
below. Each party shall own exclusive rights to the trademarks
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and service marks it creates. Neither party shall have the right to
use trademarks or service marks of 'the other party without the
other party's express written consent except for use of names in
the context of providing copyright notices on the Licensed Programs
or SEEC materials or VIASOFT materials. Neither party will do
anything to infringe or knowingly jeopardize the copyright
interests or Confidential Information of the other party.
(b) SEEC shall own the copyrights in the Private Label Products and
shall affix the following copyright notice to the Private Label
Products and where indicated below:
(c) [year of first publication] SEEC, Inc.
Such copyright notice will be displayed in the transient, "Loading"
screen that will be displayed while the product is being brought up
and in the HELP/About screen. Each such screens shall bear the
title of the applicable product name, as chosen by VIASOFT,
followed by the VIASOFT/Product Logo and descriptive text in the
center of the screen. The bottom of each screen will contain
VIASOFT trademarks and the SEEC copyright as described above.
VIASOFT will provide SEEC with DLL(s) or resource files with
dialogs and product icons for the above-described screens to be
included in the product diskettes. Copyright ownership and
legending duties with respect to the SEEC Materials and the VIASOFT
Materials are further set forth in Sections 5(a), 5(b) and 10(d)
above.
(c) SEEC covenants and agrees not to manufacture or distribute Private
Label Products except for or on behalf of VIASOFT, at VIASOFT's
request. SEEC may, however, use the additional programming created
pursuant to its obligations under Sections 5(d) and e in products
other than Private Label Products.
(d) SEEC covenants and agrees that, as owner of the Private Label
Products, it will not (i) transfer or license the Private Label
Products to third parties without the prior written consent of
VIASOFT, except as expressly permitted in this Agreement, or (ii)
have any right to compensation or accounting other than as
expressly provided in this Agreement. This Section 14(d) does not
increase or decrease SEEC's rights with respect to a Change in
Control of SEEC. Nothing in this Section 14(d) will be deemed to
restrict SEEC's rights to transfer or license Licensed Programs
(other than Private Label Products) except as specified to the
contrary in this Agreement.
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(e) 1. VIASOFT and SEEC agree to notify each other of any conduct by
any third persons which, in their reasonable opinions,
constitutes infringement or other unauthorized use of the
Licensed Programs, and each shall make available to the other
any information with respect to such possible infringement or
other unauthorized use which they may possess.
2. SEEC shall have the first right to enforce the Licensed Programs
against infringements by third parties. SEEC shall have sole
discretion with respect to settlement and the conduct of any
ensuing litigation. VIASOFT will cooperate in any reasonable
request of SEEC including, without limitation, producing
documents regarding Licensed Programs and making officers and
key employees available for testimony, whether at deposition or
in court. All damages or awards received by SEEC in connection
with its efforts to enforce the Licensed Programs shall be
distributed as provided in Section 14(e)4.
3. VIASOFT may, at its option and sole cost, enforce the Licensed
Programs against infringements by third parties if SEEC does not
do so within a reasonable period (not to exceed sixty (60) days)
after receipt of a written request from VIASOFT that SEEC
proceed under Section 14(e) (2). If VIASOFT elects to enforce
the Licensed Programs against any such infringement, it shall
have sole discretion with respect to settlement and the conduct
of any ensuing litigation, provided that VIASOFT shall not have
the right to enter into a settlement agreement without SEEC's
prior written consent to the extent that such settlement
agreement would impair or jeopardize SEEC's copyright interests
at issue or which would permit future use of a product which
infringes SEEC's copyright interests. SEEC will cooperate in any
reasonable request of VIASOFT including, without limitation,
producing documents regarding the Licensed Programs and making
officers and key employees available for testimony, whether at
deposition or in court. All damages or awards received by
VIASOFT in connection with its efforts to enforce the Licensed
Programs shall be distributed as provided in Section 14(e)4. In
the event VIASOFT proceeds under this Section 14(e)3, SEEC will
cooperate at VIASOFT's costs in a manner sufficient to give
VIASOFT standing to enforce such copyright against the claimed
infringement.
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4. Any damages or awards received by SEEC or VIASOFT pursuant to
this Section 14(e) shall be applied first to the reasonable
costs and expenses incurred by the parties in connection with
such litigation, and any amounts remaining after such
application (the "Remaining Award") shall be disbursed to the
parties as follows:
a. The entire Remaining Award shall first be divided into two
portions, one the "VIASOFT Portion" and the other the "SEEC
Portion", such that the ratio of the VIASOFT Portion to the
SEEC Portion shall equal the ratio of VIASOFT's "Market
Share" to SEEC's "Market Share" at the time of the damage
award.
b. For purposes of the preceding sentence, the term "Market
Share" of a party means (i) that party's gross revenues
received in the prior twelve (12) months with respect to
sale or use of Licensed Programs in the actual geographic
market in which the infringement that gave rise to the
damage award occurred as determined by the court in the
infringement proceeding (not including revenues received by
such party from the other party pursuant to this Agreement
and not including revenues from any geographic region with
respect to which such party did not have distribution
rights pursuant to this Agreement), (ii) divided by the sum
of the parties' Market Shares determined pursuant to the
foregoing clause (i).
c. The VIASOFT Portion shall be deemed to constitute VIASOFT
License revenues for purposes of Section 4(a) above; SEEC
shall be entitled to receive from the VIASOFT Portion an
amount determined by multiplying the VIASOFT Portion by the
applicable License Fee Rate under Section 4(a); and VIASOFT
shall be entitled to receive the balance of the VIASOFT
Portion.
d. The SEEC Portion shall be deemed to constitute SEEC
revenues to which the SEEC Royalty applies pursuant to
Section 8 above; VIASOFT shall be entitled to receive from
the SEEC Portion an amount determined by multiplying the
SEEC Portion by the five percent (5%) SEEC Royalty rate
subject to the aggregate $1,000,000 limitation set forth in
Section 8;
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and SEEC shall be entitled to receive the balance of the
SEEC Portion.
(f) SEEC shall indemnify, defend, save and keep harmless VIASOFT and
VIASOFT's Sub-Distributors and End Users for, from and against any
and all claims, demands, losses, costs, damages, suits, judgments,
penalties, expenses and liabilities of any kind whatsoever,
incurred by them in connection with:
1. Any claim, demand or proceeding made or brought against VIASOFT
or any of VIASOFT's Sub- Distributors or End Users by any person
not a party to this Agreement to the extent such claim, demand
or proceeding is based on an allegation that the provision or
use of any Licensed Program or SEEC Materials infringes any U.S.
patent, U.S. copyright or U.S. trademark, or involves
misappropriation of any trade secret anywhere in the world, or a
violation of Sections 11(d) (i), 11(d) (ii), or 11(d) (iii), and
2. Notwithstanding Section 14(f)1, SEEC shall have no liability or
duty hereunder to defend, indemnify or keep harmless VIASOFT or
its Sub-Distributors or End Users to the extent that it is
determined that the actual or claimed infringement or
misappropriation arises from the use of a Licensed Program
(including without limitation a Private Label Product) in a form
other than supplied by SEEC and such actual or claimed
infringement or misappropriation would not have arisen if the
Licensed Program had been used in the form supplied by SEEC.
Such other forms of a Licensed Program include, without
limitation, modifications to the software or documentation and
use of the software in combination with a program or device not
supplied by SEEC. In the event any actual or claimed
infringement or misappropriation arises from such other forms or
use by VIASOFT, VIASOFT shall defend, indemnify and keep
harmless SEEC to the same extent and under the same terms and
provisions as SEEC is obligated to defend, indemnify and keep
harmless License as provided in Section 14(f)1.
(g) Should any Licensed Program or SEEC Material become the subject of
a claim of infringement of a patent, copyright or trademark, or
misappropriation of a trade secret, SEEC may procure for VIASOFT
and VIASOFT's End Users, at no additional cost to VIASOFT, the
right to continue to use, market and license the Licensed Program
as provided
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herein, or SEEC shall use its Best Efforts to modify or replace the
Licensed Program in order to make it non-infringing or
non-violating, provided such modification or replacement is not
infringing and nonviolating and does not materially adversely
affect VIASOFT's right and license with respect to, or VIASOFT's
End User's use of the Licensed Program.
(h) Subject to the provisions of Section 21(d) of this Agreement, SEEC
shall defend, save and keep harmless from, and indemnify VIASOFT
and VIASOFT's Sub- Distributors and End Users against any and all
claims, demands, losses, costs, damages, suits, judgments,
penalties, expenses and liabilities of any kind whatsoever, arising
directly or indirectly out of any breach of Sections 2(d), 2(e),
2(h), 5(a), 5(c), 5(e) (ii), 5(f) (ii), 5(g), 11(a), 11(d) (iv),
11(d) (v), 11(f), 11(g), 14(a), 14(c), 14(d), 14(e)1, 14(e)3,
14(e)4, 14(i), or 15, provided that VIASOFT shall give SEEC written
notice within thirty (30) days after receipt of any third party
claim with respect to the foregoing.
(i) Each party shall indemnify, defend, save and keep harmless the
other party for, from and against any and all claims, demands,
losses, costs, damages, suits, judgments, penalties, expenses and
liabilities of any kind whatsoever, arising directly or indirectly
out of any breach of the confidentiality obligations set forth in
Section 13, provided that such party shall give the other party
written notice within thirty (30) days after receipt of any third
party claim with respect to any of the foregoing. The parties agree
that actual damages may not be a sufficient or readily
ascertainable remedy for any breach of the confidentiality
obligations set forth in Section 13. Each party's liability under
this Section 14(i) whether in tort, contract or otherwise, for any
damages arising out of breach of Section 13 of this Agreement shall
not exceed Five Hundred Thousand Dollars (U.S. $500,000), except
that each party's liability shall not be limited as to the amount
or type of damages for any intentional or grossly negligent breach
of the obligations set forth in Section 13 and except that
VIASOFT's liability shall not be so limited for wrongful disclosure
or use of source code which is Confidential Information.
(j) The foregoing states the entire liability of SEEC for infringement
of copyright or trademark or misappropriation of any trade secret.
(k) This Agreement does not include any right to manufacture, copy, or
modify the Licensed Programs, or authorize any
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third party to do so, except as may specifically be permitted in
this Agreement.
(l) This Agreement does not include, or transfer to VIASOFT, any rights
other than the rights specifically enumerated in this Agreement.
This Agreement shall not be deemed to create any implied rights.
(m) This Agreement does not transfer any ownership rights in the
Licensed Programs, and/or their source codes and object codes.
(n) This Agreement does not transfer any ownership rights in any
copyrights and/or trademarks and/or patents covering the Licensed
Programs.
(o) SEEC retains all rights of ownership in and to the Licensed
Programs, its source and object code, copyrights, trademarks,
and/or patents, including modifications that VIASOFT may make to
the Escrow Contents pursuant to Section 15(e).
15. Escrow.
(a) SEEC shall establish and maintain on a continuing basis, at its
expense, a source code escrow with Data Securities Inc., or any
substitute therefor that is mutually acceptable to the parties,
(the "Custodian") in which the following are held: the latest
version, and all prior versions that are currently being supported,
of the Licensed Programs' source code and internal documentation
and program logic manuals; all other necessary tools and facilities
SEEC uses to regenerate the Object code from source code; all other
materials relating to any security devices built into the Licensed
Programs necessary to understand, modify and use such devices; and
all physical embodiments of the foregoing (the "Escrow Contents").
SEEC shall supply to VIASOFT within thirty (30) days of the
Commencement Date a written confirmation from the Custodian that
the foregoing has been accomplished as to the current versions of
the Licensed Programs, on terms and conditions set forth in this
Section 15 and other terms and conditions mutually acceptable to
the parties, and (ii) within ten (10) days after any Escrow
Contents are changed or supplemented, a written confirmation from
the Custodian identifying in reasonable detail such changes and
supplementations. The Custodian shall not discard, destroy or
release any items from the escrow without first giving VIASOFT at
least thirty (30) days prior written notice and an opportunity to
object to such proposed action, and will not discard, destroy or
release such item if VIASOFT does object. SEEC shall also
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provide to VIASOFT from time to time at VIASOFT's request (but no
more often than quarterly), a written certification by a SEEC
officer to the effect that the Escrow Contents include the most
current versions of all programs, documents and other materials
required to be held in the escrow. SEEC shall provide the Escrow
Custodian with the name and address of the person to whom any
Notices required under this Section shall be sent.
(b) Entitlement to Escrow Contents. VIASOFT shall not be entitled to
the Escrow Contents unless all of the following events shall have
occurred: (1) VIASOFT is not in material default with respect to
its royalty payments; and (2) SEEC is in "Material Default" as
defined under Exhibit B; and (3) a SEEC Bankruptcy has occurred;
and (4) VIASOFT has complied with any applicable requirements of
the United States Bankruptcy Code pertaining to access to the
Escrow Contents, if SEEC is then under the jurisdiction of the
United States Bankruptcy Court.
(c) Release of the Escrow Contents to VIASOFT. The Escrow Contents
shall be released to VIASOFT by the Escrow Custodian under the
terms of this Agreement only upon the happening of any one or more
of the following events:
1. If the Escrow Custodian receives a copy, certified by the
American Arbitration Association as true and correct, of a
decision of an Arbitration Board which states that (i) SEEC has
been given notice and an opportunity to be heard; and (ii)
orders the release of the Escrow Contents to VIASOFT, the Escrow
Custodian shall release the Escrow Contents to VIASOFT
forthwith.
2. If the Escrow Custodian receives a written request from VIASOFT
for release of the Escrow Contents ("VIASOFT Request"), the
Escrow Custodian shall release the Escrow Contents to VIASOFT
only after all of the following conditions have been satisfied
in every respect:
(i) The VIASOFT Request shall specify in reasonable detail all
of the facts which VIASOFT alleges entitles it to release of the
Escrow Contents under the pre-requisites set forth in Section
15(b) above.
(ii) The Escrow Custodian shall thereupon send SEEC by Express
Mail, return receipt required, a written notice of the VIASOFT
Request, which notice shall include a copy of the VIASOFT
Request ("Escrow Custodian's Notice" hereinafter).
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(iii) If within thirty-one (31) days of SEEC's receipt of the
Escrow Custodian's Notice, SEEC provides the Escrow Custodian
with a copy of a document, certified by the American Arbitration
Association, or by a state of federal court, which shows that
SEEC has initiated an action contesting VIASOFT's right to the
Escrow Contents, the Escrow Custodian shall not release the
Escrow Contents in response to the VIASOFT Request. If after
thirty one (31) days no such certified document has been
received by the Escrow Custodian, it shall release the Escrow
Contents to VIASOFT forthwith.
3. If the Custodian receives a certified copy of an order of a
court of competent jurisdiction ordering such release, the
Escrow Custodian shall release the Escrow Contents to VIASOFT
forthwith.
4. If the Custodian receives a written request from the
debtor-in-possession (or trustee) of SEEC, if applicable,
directing such release, the Escrow Custodian shall release the
Escrow Contents to VIASOFT forthwith.
(d) Burden. In any action brought by SEEC to contest VIASOFT's
entitlement to the Escrow Contents, VIASOFT shall bear the burden
of proving by a preponderance of the evidence that it is entitled
to the Escrow Contents under the pre-requisites set forth in
Section 15 (b) above of this Agreement. If VIASOFT meets its
aforesaid burden of proof, SEEC may successfully avoid release of
the Escrow Contents only upon proving, by a preponderance of the
evidence that it has the ability and means of fulfilling its
maintenance and support obligations under Exhibit B of this
Agreement, and will do so.
(e) Use of Escrow Contents and Indemnity. Subject to the provisions of
Section 15(b) of this Agreement, VIASOFT shall have the right to
use the Escrow Contents only for the purposes specified in this
Section 15(e) and all its subparts. Upon release of the Escrow
Contents to VIASOFT, the Escrow Contents shall be maintained and
used by VIASOFT on ONE (1) designated LAN Server and access to the
Escrow Contents and the designated LAN Server will be restricted to
individuals selected by VIASOFT responsible for maintenance and
support with effective security measures in place for the purpose
of preventing unauthorized access, and maintaining a record of all
access. The identification of the LAN Server and its physical
location, and the nature and extent of the aforesaid security
measure will be certified by VIASOFT to SEEC within one business
day of receipt of the Escrow
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Contents by VIASOFT. VIASOFT shall maintain all records of all
access to the Escrow Contents and all such records will be
available for inspection on a confidential basis by an independent,
third party auditor at any time and from time to time during normal
business hours. Such auditor shall not disclose the names revealed
to it in such records. Any use of the Escrow Contents which does
not strictly conform in every respect to the provisions of this
Section 15(e) and all its subparts, or any unauthorized disclosure
of the same, shall be deemed an infringement of SEEC's copyright
interest and an unauthorized use of SEEC's Confidential
Information, in material breach of VIASOFT's obligations under this
Agreement, and VIASOFT shall indemnify and save SEEC harmless from
any and all damages, costs, and expenses, including, without
limiting the generality of the foregoing, reasonable attorney's
fees and the costs and expenses of litigation, resulting from the
said infringement and/or unauthorized use.
(i) Use of Escrow Contents Prior to Termination of Agreement. Prior
to termination of this Agreement, VIASOFT shall have the right to
use the Escrow Contents only for the purpose of fulfilling
VIASOFT's and SEEC's pre-termination Exhibit B obligations to
VIASOFT and VIASOFT customers who have Maintenance Agreements with
VIASOFT and for no other purposes. While using the Escrow Contents
as specified herein, VIASOFT shall continue to pay all License
Royalties due under the terms of this Agreement, and its obligation
to pay Maintenance Royalties shall continue but shall be reduced to
ten percent (10%) from thirty percent (30%). VIASOFT shall not be
required to pay any other charge for use of the Escrow Contents.
(ii) Use of Escrow Contents After Termination of Agreement. After
termination of this Agreement, VIASOFT shall have the right to use
the Escrow Contents only for the purpose of fulfilling VIASOFT's
and SEEC's Exhibit B obligations to VIASOFT and VIASOFT customers
who have Maintenance Agreements with VIASOFT, up to a maximum
period of three (3) years from the date of termination of this
Agreement, and for no other purpose. VIASOFT shall provide SEEC's
auditors, on a confidential basis, with a list of all its then
existing customers, and SEEC's auditors shall have the right to
ascertain that the customers on the list have maintenance
agreements with VIASOFT of the type covered by Exhibit B of this
Agreement. While using the Escrow Contents as specified in this
Subsection 15(e) (ii), VIASOFT shall continue to pay all License
Royalties due to SEEC for such sales of the Licensed Programs as
are permitted under the post-
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termination terms of this Agreement. However, VIASOFT shall pay to
SEEC Maintenance Royalties of ten percent (10%), rather than thirty
percent (30%), but shall not be required to pay any other charge
for use of the Escrow Contents.
(f) The parties expressly intend that this Section 15 shall constitute
a "supplementary agreement" within the meaning of 11 U.S.C. Section
365(n), that VIASOFT shall be entitled to the full application of
11 U.S.C. Section 365(n), in respect to its rights under this
Agreement, particularly its rights under this Section 15, and that
in the exercise of such rights, VIASOFT shall have the further
rights, upon nonperformance by SEEC of its maintenance and support
obligations under Exhibit B of this Agreement, to perform or have
performed such obligations to the extent reasonably necessary to
permit VIASOFT to fully exercise the limited right and license set
forth in Section 15(e).
(g) If VIASOFT has received the Escrow Contents pursuant to this
Section 15, and SEEC demonstrates (no earlier than six (6) months
after VIASOFT receives such Escrow Contents) to VIASOFT's
reasonable satisfaction that SEEC is ready, willing and able to
resume providing Maintenance and Support Services as required by
Exhibit B, including assurances that SEEC will not again default
under Exhibit B, SEEC may resume providing such Maintenance and
Support Services on the terms existing prior to SEEC's Material
Default under Exhibit B, subject to VIASOFT and SEEC reaching
mutual agreement with respect to VIASOFT's access to the Escrow
Contents in the event that SEEC again defaults under Exhibit B,
subject to Section 16 (f). Any disputes under this Section 15 (g),
including with respect to whether VIASOFT's determination in the
second clause of this Section 15 (g) is reasonable and including
what would constitute a reasonable mutual agreement as contemplated
by the last clause of the first sentence in this Section 15 (g),
shall be resolved by binding arbitration pursuant to Section 20(g)
of this Agreement.
(h) If VIASOFT takes possession of the Escrow Contents under this
Section 15, (i) it shall hold such Escrow Contents pursuant to this
Section 15 and in trust for the benefit of SEEC, (ii) it shall
continue in effect the escrow described in Section 15(a) but for
SEEC's benefit and shall have the same obligations under Section
15(a) for SEEC's benefit as SEEC has for VIASOFT's benefit
(including providing copies of major and minor releases of Licensed
Programs by VIASOFT, and related materials described in Section
15(a)), and (iii) during regular
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business hours when VIASOFT is open for business, VIASOFT shall
permit SEEC to review major and minor releases of the Licensed
Programs by VIASOFT, which SEEC, in its discretion may use and
license, but under no circumstances will VIASOFT be liable to SEEC
or its customers with respect to such releases or any other changes
by VIASOFT to the Escrow Contents; VIASOFT makes no warranties of
any kind or nature with respect thereto, and without limiting the
foregoing, does not warrant that the same are defect-free or
virus-free.
(i) At such time as VIASOFT's right to possess the Escrow Contents
pursuant to this Section 15 terminates, VIASOFT shall (i) terminate
its usage of the Escrow Contents immediately, (ii) return the
Escrow Contents, as modified by VIASOFT, to SEEC promptly, and
(iii) certify to SEEC that VIASOFT no longer has possession of or
access to the Escrow Contents.
(j) Release of the Escrow Contents to VIASOFT does not give any rights
in the same to VIASOFT except as expressly set forth in this
Section 15. Because the Escrow Contents are trade secrets of SEEC,
VIASOFT's rights to the Escrow Contents shall not under any
circumstances, voluntarily or involuntarily, be assigned unless the
assignee posts a performance bond in the amount of one and one-half
times the fair market value of the Escrow Contents. The granting of
rights to VIASOFT under this Section 15 without necessity for
posting such a bond are personal to VIASOFT and represent an
extension of credit to VIASOFT.
(k) SEEC's Right to Terminate Escrow. In addition to the provisions of
Section 15(i) above, SEEC shall have the right to terminate the
Escrow and receive the Escrow Contents from the Escrow Agent when
this Agreement has been terminated and all of the post-termination
periods specified in Section 16 (f) of this Agreement have come to
an end, in which event, the Escrow Agent shall release the Escrow
Contents to SEEC upon the happening of any one or more of the
following events:
1. If the Escrow Custodian receives a written request from SEEC for
release of the Escrow Contents ("SEEC Request"), the Escrow
Custodian shall release the Escrow Contents to SEEC only after
all of the following conditions have been satisfied in every
respect:
(i) The SEEC Request shall specify in detail all of the facts
which SEEC alleges entitles it to release of the Escrow Contents
under the prerequisites set forth in Section 15(k) above.
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(ii) The Escrow Custodian shall thereupon send VIASOFT by
Express Mail, return receipt required, a written notice of the
SEEC Request, which notice shall include a copy of the SEEC
Request ("Escrow Custodian's Notice of SEEC Request"
hereinafter).
(iii) If within thirty-one (31) days of VIASOFT's receipt of the
Escrow Custodian's Notice of SEEC Request, VIASOFT provides the
Escrow Custodian with a copy of a document, certified by the
American Arbitration Association, or by a state or federal
court, which shows that VIASOFT has initiated an action
contesting SEEC's right to the Escrow Contents, the Escrow
Custodian shall not release the Escrow Contents in response to
the SEEC Request. If after thirty-one (31) days no such
certified document has been received by the Escrow Custodian, it
shall release the Escrow Contents to SEEC forthwith.
2. If the Escrow Custodian receives a copy, certified by the
American Arbitration Association as true and correct, of a
decision of an Arbitration Board which states that (i) VIASOFT
has been given notice and an opportunity to be heard; and (ii)
orders the release of the Escrow Contents to SEEC, the Escrow
Custodian shall release the Escrow Contents to SEEC forthwith.
16. Term and Termination.
(a) 1. This Agreement shall take effect as of the Commencement Date and
shall remain in effect for a period of five years (the "Initial
Term") unless earlier terminated pursuant to this Agreement. So
long as VIASOFT is not in material default of this Agreement as
defined below, the Initial Term shall be extended automatically
for an additional period of five (5) successive one (1) year
terms (each a "Subsequent Term") if VIASOFT has paid to SEEC or,
because of the 60 or 90 day billing cycle, as applicable,
VIASOFT has accrued but not yet paid, at least One Million
Dollars ($1,000,000) in VIASOFT Royalties (or payments to make
up a shortfall therein) during the twelve (12) months preceding
the end of the Initial Term or at least One Million Dollars
($1,000,000) in VIASOFT Royalties (or payments to make up a
shortfall therein) during the twelve (12) months preceding the
end of any Subsequent Term, as applicable. For purposes of
determining compliance with the
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preceding sentence, accruals and payments shall not be double
counted.
2. If the Agreement has not renewed pursuant to Section 16(a)1
(whether by royalty payments/accruals or shortfall payments) as
of the end of the Initial Term or a Subsequent Term, then the
Initial Term or Subsequent Term, as applicable, shall continue
only for thirty (30) days after the end of such Term and shall
terminate effective at the end of such thirty (30) day period,
unless VIASOFT pays the necessary royalty or shortfall payments,
or SEEC elects in its sole discretion to renew the Agreement,
during such thirty (30) day period, in which case, the Agreement
shall renew.
3. Unless renewed, or upon termination of this Agreement in
accordance with its terms, VIASOFT's right to market and promote
the Licensed Programs shall terminate absolutely, except to the
extent specified in this Agreement, without any liability by
SEEC to VIASOFT, or its Sub-distributors, for the said
termination. VIASOFT shall ensure that its agreements with its
Sub-distributors so provide. Except as provided herein, there
will be no automatic right to renewal of this Agreement by
either party. Unless VIASOFT satisfies the pre- requisites for
renewal set forth above, failure to renew by SEEC for any
reason, or for no reason, shall not be deemed a breach of this
Agreement or an actionable wrong.
4. Any payments made by VIASOFT in order to make up a shortfall in
VIASOFT Royalties for purposes of Section 16(a) or 16(g) shall
be deemed earned, and not advance royalties. They shall not be
refundable under any circumstances, nor shall VIASOFT be
entitled to any credit against them for future sales.
(b) Definition of Material Default. For purposes of this Agreement,
"material default" means (1) a default under the terms of this
Agreement which remains uncured for a period of more than thirty
(30) days after receipt of a notice in writing from the party
specifying such default, or (2) breach of a provision of this
Agreement which is not de minimis, and which cannot be cured, or
(3) repeated tardy payments of VIASOFT Royalties or SEEC Royalties,
as applicable. For purposes of this Agreement, "repeated tardy
payments" means (i) two (2) or more occurrences within a six (6)
month period in which Advances are more than twenty (20) days late,
with
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interest, or (ii) three (3) or more occurrences within a six (6)
month period in which undisputed royalties are more than twenty
(20) days late, with interest, provided that SEEC Royalties shall
not be deemed tardy to the extent that VIASOFT is able to offset
SEEC Royalties that are due against VIASOFT Royalties that are due.
(c) Termination for Material Default. Notwithstanding any provisions in
this Agreement to the contrary, this Agreement may be terminated at
any time by either party giving written notice to the other party
if such other party shall be in material default under this
Agreement. Such termination shall be effective thirty (30) days
after the defaulting party's receipt of notice of termination,
unless this Agreement expressly provides a longer or shorter period
before which the termination becomes effective. If such material
default consists of a violation by VIASOFT of Section 2(c)1 that
occurred because of Section 2(c)3, then SEEC's sole remedies for
such material default shall be termination of this Agreement or
conversion of exclusivity to nonexclusivity under Section 2(b)5.
(d) Termination by VIASOFT. This Agreement may be terminated by VIASOFT
if a Change in Control of SEEC occurs. SEEC agrees to provide
VIASOFT written notice in reasonable detail when SEEC becomes aware
that a Change in Control of it is about to occur (i.e., when SEEC
or its shareholders sign a preliminary agreement pursuant to which
a closing for a Change in Control is contemplated) and to keep
VIASOFT informed with respect to whether the same occurs. If it
desires to terminate this Agreement pursuant to this Section 16(d),
VIASOFT shall exercise its right to terminate the Agreement by
delivering written notice to SEEC (or the resultant entity, as
applicable) within thirty (30) days after VIASOFT's receipt of
written notice in reasonable detail that a Change in Control of
SEEC has occurred, and in such event, this Agreement shall
terminate thirty (30) days after such notice of termination.
(e) Termination by SEEC. Whether or not VIASOFT is in material default,
SEEC may terminate this Agreement, within the time periods
specified,
(i) Pursuant to and as set forth in Section 2(c)2;
(ii) Upon thirty (30) days prior written notice, if VIASOFT assigns
this Agreement to a third party without SEEC's prior written
approval in violation of Section 20(h) or Section 15. If the
aforesaid assignment is involuntary, and if the assignee does
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not have credit and technical capabilities that are
satisfactory to SEEC, SEEC shall have the absolute right to
unilaterally amend this Agreement to (i) require payment terms
which do not involve the extension of credit, and (ii)
establish quality control criteria for the promotion, sale and
maintenance of the Licensed Programs, as a condition precedent
to the continuation of this Agreement. Failure of the assignee
to comply with such credit and quality control terms after
notice of deficiencies and a thirty (30) day opportunity to
cure, shall be deemed a material default and shall entitle
SEEC to terminate this Agreement upon compliance with the
provisions of Section 16(b) and (c) above.
(f) Rights and Obligations Upon Termination. Upon termination of this
Agreement the parties shall have the following rights and
obligations:
(1) Confidential Information shall be dealt with as described in
Section 13(a)7.
(2) SEEC shall provide to VIASOFT within thirty (30) days after
termination, that number of copies of Licensed Programs (in the
mix requested by VIASOFT) such that the number of copies
multiplied by the applicable minimum domestic License Royalty
under Section 4(a) (using the highest published domestic list
price for each product in the mix for the prior twelve (12)
months) is equal to the amount of unrecoverable unearned
Advances, if any. VIASOFT and its Sub-distributors may continue
to sublicense to end-users such existing inventories of
Licensed Programs as they receive pursuant to the preceding
sentence or as they may have in their possession at the time
notice of termination is received or sent by VIASOFT, for
VIASOFT License Royalties as set forth in Section 4 of this
Agreement.
(3) VIASOFT may, at its sole option, continue to provide Level 1
support and maintenance services as set forth in Exhibit B, to
end-users who have purchased Licensed Programs prior to
termination or pursuant to Section 16(f) (2) above pertaining
to sale of existing inventory, or pursuant to Section 16(f) (4)
below, for a period not to exceed three (3) years from the date
of termination. If VIASOFT elects to provide such service,
support and maintenance to such customers, SEEC shall have the
obligation to continue to provide Maintenance and Support
Services set forth in Exhibit B of this
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Agreement to such VIASOFT customers for a maintenance royalty
of thirty percent (30%) of VIASOFT's invoiced maintenance
revenue, payable in accordance with the terms of Section 4 of
this Agreement.
(4) Upon termination by SEEC of this Agreement other than under the
provisions of Sections 16(c) or 16 (e) above, VIASOFT may, for
a period of two (2) years from date of termination, continue to
sell Add-ons to end-users who are existing customers of VIASOFT
at the time of termination, and to VIASOFT customers to whom
inventory is sold under the provisions of Section 16(f) (2)
above, for a royalty of forty percent (40%) of VIASOFT's
invoiced revenues therefor, or the minimum royalty specified in
Section 4 of this Agreement, whichever is higher, which
royalties shall be paid in accordance with the provisions of
Section 4 of this Agreement. If SEEC requests, VIASOFT shall
provide reasonable proof to SEEC that each such customer
qualifies for the purchase of such Add-ons under this
provision. SEEC shall not sell Licensed Programs to Protected
Customers under Section 2(h) for the remainder of the twelve
(12) month period of protection applicable thereto, provided
that there can be no new protection available after the
termination date.
(5) End-user sublicense agreements granted under the terms of this
Agreement and prior to any termination thereof, or in
accordance with Section 16(f) (2) (pertaining to sale of
inventory) and Section 16(f)(4) (pertaining to Add-ons), shall
continue in full force and effect notwithstanding any
termination of this Agreement.
(6) If, during the term of this Agreement or the three (3) year
period described in Section 16 (f) (3), VIASOFT publicly states
or notifies VIASOFT's customers of VIASOFT's intentions to
abandon support for the Licensed Programs, VIASOFT will, at
SEEC's option, assign to SEEC the Maintenance Agreements for
the Licensed Programs, provided that SEEC
(i) provides Maintenance Support Services pursuant to Exhibit
B, including ▇▇▇▇▇ ▇ support, for the remainder of the
Maintenance Agreements and any renewals of the same, and
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(ii) pays VIASOFT twenty percent (20%) of all future
maintenance revenue for the Licensed Programs that SEEC
invoices to such customers during the three (3) year
period following such assignment. Such payments shall be
paid to VIASOFT within ninety (90) days following the end
of the month in which SEEC invoices such customers, and
otherwise as is provided in Section 8 (b) (concerning SEEC
Royalties).
With respect to each Maintenance Agreement assigned to SEEC
pursuant to this Section 16(f) (6), if such assignment occurs
prior to the end of a term for which the relevant End User has
paid (or is obligated to pay) to VIASOFT a "Support Fee" under
such Maintenance Agreement, then the amounts payable to VIASOFT
and SEEC with respect to such Support Fee under this Agreement
for the portion of such term before and after such assignment
will be pro rated as follows (with the Support Fee being
divided evenly over each month) - For each month before the
Maintenance Agreement is assigned including the month of
assignment, SEEC shall be entitled to the applicable
Maintenance Royalty. For each month following assignment of the
agreement, SEEC shall be entitled to eighty percent (80%) of
the Support Fee. The net amount owing to SEEC as the result of
assignment will be recovered by SEEC offsetting such amount
against payments SEEC owes to VIASOFT pursuant to Section 16(f)
(6) (ii).
(g) After the Exclusivity Period, SEEC shall have the right and
option, in its sole discretion, to terminate this Agreement as
set forth below, if VIASOFT has not paid to SEEC, or because of
the 60 or 90 day billing cycle, as applicable, VIASOFT has
accrued but not yet paid, VIASOFT Royalties of at least One
Million Dollars ($1,000,000) for each twelve month period
ending on the third and fourth anniversary dates of the
Commencement Date, unless VIASOFT cures any shortfall in such
amount of VIASOFT Royalties by paying to SEEC an amount equal
to the amount of the shortfall within thirty (30) days
following written notice from SEEC that it intends to terminate
the Agreement pursuant to this Section 16 (g). If VIASOFT has
not cured such shortfall as provided in the previous sentence,
termination pursuant to this Section 16(g) shall become
effective six months after receipt by VIASOFT of SEEC's written
notice of termination. For purposes of determining compliance
with the first sentence of this Section 16 (g), accruals and
payments shall not be double counted.
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(h) (1) All remedies, indemnities and causes of action for damages
resulting from any breach of this Agreement shall survive
termination of this Agreement and shall continue in full force
and effect until expiration of applicable periods of limitation
and the completion of any timely litigation, unless a longer
period is specified herein.
(2) Without limiting the generality of the foregoing, the following
Sections of this Agreement shall survive any termination of
this Agreement and continue in full force and effect until
expiration of the period of limitations where applicable and
the completion of any timely litigation.
(i) Section 1, Section 4 for the payment of VIASOFT
Royalties, Section 8 for the payment of SEEC Royalties,
10(b), 10(h), 11(d), 12, 14(j), and
(ii) Sections 10(a) and 14(e) for the periods of time after
termination described in Section 16 (f).
(3) The following Sections of this Agreement shall survive
termination of this Agreement and shall continue in full force
and effect for the periods specified herein, provided, however,
when a harm complained of is known or should have been known,
the applicable statute of limitations will commence to run.
Nothing in this Section will be deemed to have extended the
term of the applicable statute of limitations.
(i) Sections 2(a) (but not to perform Final Beta Tests of
Licensed Programs), 3(a), 3(b), 4, 7(a) (but excluding
enhancements and Exhibit F), 11(a) (i), 11(b) (but
excluding enhancements and Exhibit F), 11(e), 14(b), to
the extent necessary to effectuate the provisions of
Section 16 (f);
(ii) Section 8(a) indefinitely so far as it pertains to
SEEC's right to use the disclosed know-how;
(iii) Section 8 (c), indefinitely;
(iv) Sections 10(c), 11(f), 11(g), for twelve months
following termination, or such additional period as an
arbitration panel may determine if this provision has
been
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breached prior to the aforesaid twelve month period and
the non-compete period is extended by the period of the
aforesaid breach.
(v) Sections 10(d) and 10(e) for the period of time during
which VIASOFT continues to sell or support the Private
Label Products after termination of this Agreement in
accordance with the provisions of Section 16 (f).
(vi) Sections 10(f), 14(i), 15(e) for so long as SEEC may
suffer any of the enumerated types of damage or
liability for which the indemnity is given.
(vii) Section 13, for all trade secrets, forever; for all
registered copyrighted materials, for the life of the
copyright and all renewals thereof; for all other
materials, until such time as the materials are lawfully
published and lawfully come into the public domain.
(viii) Section 14(a) so far as it pertains to copyright
interests, trade secrets, trademarks and service marks,
forever.
(ix) Section 14(c) and (d) forever.
(x) Sections 14(f), 14(h), 14(i) for so long as VIASOFT may
suffer any of the enumerated types of damage or
liability for which the indemnity is given.
(xi) Sections 14(k) through (o) indefinitely.
(xii) Section 15 for so long as SEEC has any support and
maintenance obligations under Section 16(f).
(xiii) Sections 16(f) (2) and 16(f) (4) for a period of two (2)
years from date of termination.
(xiv) Section 16(f) (3) for a period of three years from date
of termination.
(xv) Section 16(f) (6) for a period of three years from date
of termination.
(xvi) Sections 9, 10(g), 18 (Notices), Section 19 (Law and
Jurisdiction) and Section 20
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(General), Section 21 (Remedies), for as long as any
other provision of this Agreement survives termination
and for the duration of any timely litigation.
17. Right of First Offer. At any time or times during the term of this
Agreement that SEEC or its principals desire to enter into a
transaction or series of transactions the result of which would be the
sale of all or substantially all of its business or of the product line
(including all copyright interests) that includes Licensed Programs,
whether the same would be accomplished by the sale or exchange of
capital stock, merger, consolidation, or Bale or other transfer of
assets (including long term or perpetual exclusive licensing), or a
transaction or series of transactions that would result in a Change in
Control of SEEC (any of the foregoing transactions being a "Significant
Transaction"), provided that a Significant Transaction shall not
include venture capital investments, SEEC shall provide written notice
of such desires to VIASOFT prior to approaching any third parties.
VIASOFT shall then have the first opportunity to negotiate with SEEC
and/or its principals with respect to accomplishing a mutually
acceptable Significant Transaction. If VIASOFT so elects, it will make
a written offer with respect to a Significant Transaction SEEC has
solicited from VIASOFT. SEEC agrees, for the thirty (30) day period
following its written notice to VIASOFT described above, to negotiate
in good faith exclusively with VIASOFT (the "Exclusive Negotiating
Period") and not negotiate with, or solicit any offers or discussions
from any third party with respect to a significant transaction.
VIASOFT's entitlement to an Exclusive Negotiation Period and to make a
Right of First Offer shall be on a one-time basis only (except with
respect to unsolicited offers). After expiration of the Exclusive
Negotiation Period, SEEC shall be free to negotiate and/or accept any
other offer which SEEC, in its sole discretion, deems to be better than
the VIASOFT offer, if any. Notwithstanding the foregoing, such thirty
(30) day period shall be reduced to a seven (7) day period each time,
if any, that SEEC receives an unsolicited offer. With respect to
unsolicited offers, if SEEC elects in its sole discretion to continue
to negotiate with the offeror after the Exclusive Negotiation Period
the VIASOFT Right of First Offer will not apply to offers and
counteroffers made in the course of such continued negotiations by SEEC
and/or the initiating offeror. If SEEC thereafter abandons such
negotiations, then commencing six (6) months after such abandonment
provided negotiations were not resumed in such six (6) month period,
the VIASOFT Right of First Offer will again apply to offers by the same
offeror.
This Section 17 shall be binding upon SEEC and the following
principals: ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇
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▇▇▇▇▇▇▇, and as a condition of executing this Agreement, SEEC shall
provide VIASOFT with a letter from each such principal in the form
attached hereto as Exhibit I agreeing to be bound by this Section 17.
18. Notices and Requests.
Unless otherwise specifically provided, all notices required or
permitted by this Agreement shall be in writing and may be delivered
personally, by overnight delivery service, or may be sent by facsimile
with a confirming copy sent by registered or certified mail, postage
prepaid and return receipt requested, addressed as follows:
For SEEC: SEEC, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attn: ▇▇▇▇ ▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
For VIASOFT: VIASOFT, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
The parties may change their address from time to time by giving
written notice to the other party. Any notice shall be deemed to have
been received as follows: (i) personal delivery and overnight delivery
upon receipt; and (ii) facsimile the day sent. Nothing contained herein
shall justify or excuse failure to give oral notice for the purpose of
informing the other party thereof when prompt notification is
appropriate, but such oral notice shall not satisfy the requirement of
written notice. If either party knows that the other party's last known
address is different from the above, the notice shall be sent to the
above address and the last known address.
19. Governing Law and Jurisdiction.
The validity, construction and performance of this Agreement and legal
relations between the parties to this Agreement shall be governed and
construed in accordance with the laws of the Commonwealth of
Pennsylvania, excluding that body of law applicable to conflicts of
law.
20. General. Except to the extent inconsistent with the express language of
the foregoing provisions of this Agreement, the
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following provisions shall govern the interpretation, application,
construction and enforcement of this Agreement.
(a) Additional Acts and Documents. Each party hereto agrees to do all
such things and take all such actions, and to make, execute and
deliver such other documents and instruments, as shall be
reasonably requested to carry out the provisions, intent and
purpose of this Agreement.
(b) Attorney Fees. Except as provided in Section 21, in the event suit
is brought (or arbitration instituted) or an attorney is retained
by any party to this Agreement to enforce the terms of this
Agreement or to collect any moneys due hereunder, or to collect
money damages for breach hereof, each party shall bear its own
costs and expenses incurred in connection therewith regardless of
who prevails in such proceeding.
(c) Counterparts. This Agreement may be executed in any number of
counterparts, all such counterparts shall be deemed to constitute
one and the same instrument, and each of said counterparts shall be
deemed an original hereof.
(d) Waiver. No action or failure to act by either party shall
constitute a waiver of any right or duty accorded to any of them
under this Agreement, nor shall any such action or failure to act
constitute an approval of, or acquiescence in, any breach
hereunder, whether a subsequent breach of the same kind, or a
different breach, or the continuance of any existing breach, unless
the parties specifically agree to the contrary.
(e) Integration and Amendment. The terms and conditions contained
herein constitute the full understanding of the parties, a complete
allocation of the risks between them, and a complete and exclusive
statement of the terms and conditions of their agreement, and all
agreements entered into prior hereto with respect to the subject
matter hereof are revoked and superseded by this Agreement, and no
representations, warranties, inducements or oral agreements have
been made or relied on by any of the parties except as expressly
set forth herein or in other contemporaneous written agreements. No
conditions, representations or understandings not contained herein,
and purporting to modify, waive, vary, explain or supplement the
terms or conditions of this contract shall be binding unless
hereafter made in writing and signed by a duly authorized
representative of the party to be bound.
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(f) Captions. Captions and paragraph headings used herein are for
convenience only and are not a part of this Agreement and shall not
be deemed to limit or alter any provisions hereof and shall not be
deemed relevant in construing this Agreement.
(g) Arbitration. In the event any dispute or controversy arising out of
or related to this Agreement cannot be settled by the parties, such
controversy or dispute shall be submitted to common law arbitration
in Columbus, Ohio, (or in such other location as is expressly
agreed in this Agreement) pursuant to the then existing rules and
regulations of the American Arbitration Association governing
commercial transactions (the "AAA Rules") and for this purpose each
party hereby expressly consents to such arbitration in such place.
In the event the parties cannot mutually agree upon an arbitrator
to settle their dispute or controversy, each party shall then
select one arbitrator and the two so selected shall select a third
arbitrator. If either party fails to select an arbitrator within
fifteen (15) days after written demand from the other party to do
so, then the arbitrator selected by the demanding party shall be
the sole arbitrator whose decision shall be binding and enforceable
as set forth below. If the two arbitrators selected fail to select
a third arbitrator within fifteen (15) days after the last of such
selected arbitrators is appointed, then at the election of either
party hereto, such other arbitrator shall be selected pursuant to
the AAA Rules. The decision of the majority of said arbitrators, or
of a sole arbitrator if a single arbitrator is hearing the dispute
as provided herein, shall be binding upon the parties hereto for
all purposes, and judgment to enforce any such binding decision may
be entered in the courts of general jurisdiction in Maricopa
County, Arizona or Allegheny County, Pennsylvania (and for this
purpose each party hereby expressly and irrevocably consents to the
jurisdiction of said courts). At the request of either party,
arbitration proceedings shall be conducted in the utmost secrecy
upon good cause shown. In such case, all documents, testimony and
records shall be received, heard and maintained by the arbitrators
in secrecy, available for inspection only by either party and by
their respective attorneys and experts who shall agree, in advance
and in writing, to receive all such information in secrecy.
Notwithstanding the foregoing, any party shall have the right to
seek injunctive relief (whether temporary, preliminary or
permanent) for a threatened breach of this Agreement without regard
to this Section. This Agreement shall not be construed as a
consent to arbitrate any dispute with any person who is not a party
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to this Agreement. Except for proceedings brought under Section 21
(b) or 21 (c), each party shall bear the cost of its own
arbitrator, shall bear one-half of the costs of the third
arbitrator, and shall bear all of its own witnesses and travel. An
expedited arbitration schedule shall be utilized upon good cause
shown. The costs of the AAA shall be paid by the nonprevailing
party.
(h) Limitation on Assignments. This Agreement is personal to each of
the parties hereto, and therefore the parties desire to provide for
certain rights and restrictions with respect to assignability of
this Agreement. Accordingly, the parties agree that during the
Exclusivity Period, neither party may assign or delegate any of its
rights or obligations hereunder without first obtaining the written
consent of the other, which will not be unreasonably withheld or
delayed. At any other time during the term of the Agreement, either
party shall be free to assign or delegate its rights or obligations
hereunder; provided, the party desiring to make such assignment or
delegation shall first provide written notice to the other party in
reasonable detail of such desire and the potential
assignee/delegatee and its business and provided further that such
other party shall have the right, in its sole discretion, to
terminate this Agreement upon twenty (20) days written notice from
the date it receives the above-described written notice from the
party desiring to enter the assignment/delegation transaction.
Nothing in this Section 20(h) shall preclude a party from
delegating any of its obligations under this Agreement so long as
such party remains primarily liable to the other party for
performance of such obligations. This Section 20(h) does not apply
to an assignment in connection with a Change in Control of a party,
which assignment may be made without the consent of the other
party.
21. Remedies.
(a) Nonexclusive Remedies. The remedies set forth in this Agreement
shall not be deemed to be mutually exclusive, and a party may, from
time to time, and at any time, utilize any remedies available
hereunder in accordance with the terms of this Agreement,
individually, or cumulatively, at its discretion, together with any
other remedies available at law or equity, to the extent not
specifically limited by the terms of this Agreement; provided,
however, in no event shall a party be entitled to collect a double
recovery.
(b) Liabilities. Each party shall be entitled to recover, without
limitation, (i) all statutory damages, costs,
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fees and expenses to which it may be entitled, and (ii) all
statutory and common law damages, costs, fees and expenses to which
it may be entitled for infringement of copyright or trademark
interests, and (iii) all recoveries allowed under, or for breach
of, Sections 10(f), 14(f), 14(h), 14(i) or 15 of this Agreement,
relating to indemnities.
(c) Unpaid Royalties. In any proceeding brought to recover unpaid
royalties, the prevailing party shall be entitled to recover the
royalties to which it is found to be entitled, interest thereon as
specified in this Agreement, and reasonable litigation costs,
expenses and fees, including without limiting the generality of the
foregoing, reasonable attorneys' fees.
(d) Limitation of Liability. Neither party shall be liable for any
consequential, incidental, indirect or special damages, excepting
the liabilities described in Section 21 (b) above, provided that
recovery by VIASOFT for breach of Sections 5(a), 5(c), 5(e) (ii),
5(f) (ii), or 11(a) shall be so limited unless VIASOFT demonstrates
that such breach was in bad faith or without best efforts, and
provided that recovery by SEEC for breach of Section 2 (c) shall be
so limited unless SEEC demonstrates that such breach was in bad
faith.
(e) Injunctions. Nothing contained in this Agreement shall be deemed to
deprive any party of the right to enforce an Arbitration Award, or
obtain injunctive relief to which it would be entitled under any
provision of law or equity.
(f) SEEC's Liability on Product Warranties. SEEC's liability to
VIASOFT, VIASOFT's Sub-distributors and end-users for breach of the
warranty in Section 12 shall be limited to SEEC's obligations to
repair or replace, as set forth in Section 12 and its subparts, of
this Agreement.
IN WITNESS whereof the parties hereto have caused two (2) original
copies of this Agreement to be signed for the same effect and purpose.
VIASOFT, INC. SEEC, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇
------------------------- -------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Executive Vice President President and CEO
Date: 11/29/93 Date: 11/29/93
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EXHIBITS
A. Licensed Programs
B. Maintenance and Support Services
C. SEEC's Existing Sub-Distributors
D. VIASOFT Customer List
E. Shrink Wrap License
F. Development Agreement
G. Initial Marketing Plan
H. ERA Certificate
I. Section 17 Certificate of Principals
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EXHIBIT A
TO
INTERNATIONAL SOFTWARE MARKETING AND LICENSE AGREEMENT
--------------------------------------------
LIST OF LICENSED PROGRAMS
The "Licensed Programs" shall include:
1. The COBOL Analyst product line, which includes all products that
address the COBOL maintenance market. This will include code analysis,
documentation, editing, impact analysis, code slicing, restructuring
and testing. The rule of thumb to be applied in deciding whether a
product or an add-on fits in this category will be the end use. The
end use for this product line is defined as COBOL application
maintenance and the end user is any COBOL programmer whose
responsibility is to maintain COBOL programs. The list of products
currently available (under their present names) and new products within
this product line that will be developed in the next eighteen months is
specified below:
A. COBOL Analyst consists of configure, capture, Application
Dictionary, and the Analyst tool:
a. COBOL ANALYST/ALL (includes the COBOL ANALYST/VSAM,
COBOL ANALYST/IMS, and COBOL ANALYST/CICS)
b. COBOL ANALYST/VSAM
c. COBOL ANALYST/IMS
d. COBOL ANALYST/CICS
e. Any code and data re-engineering products that address
the COBOL Maintenance Market that do not constitute
Derivative Products, as defined in Section 1 of the
Agreement.
B. Add-ons
a. CODE WALK THRU
b. SYNONYM PROCESSOR
c. DB2 ANALYSER
d. IDMS ANALYSER (proposed)
e. JCL support
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f. All local area network versions of any Licensed
Program
g. Windows NT (or any other platform migration)
h. Any other Add-ons to any Licensed Programs
i. ADW Export
C. COBOL dialog options:
a. COBOL II and COBOL II Releases
b. OS/VS COBOL
c. DOS/VSE COBOL
d. MICROFOCUS COBOL
e. REALIA COBOL
D. Bundled COBOL Analyst:
Items A(a, b, c or d) sold along with existing Item B
Add-ons
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EXHIBIT B
TO
INTERNATIONAL SOFTWARE MARKETING AND LICENSE AGREEMENT
--------------------------------------------
MAINTENANCE AND SUPPORT SERVICES
The following outlines the end-user maintenance and support objectives and
agreements of the parties. The time limits, responses, and other obligations
are estimates based on information available to date and will be reviewed
annually by the parties. Except with respect to "Material Defaults" as defined
below, SEEC will not be deemed in breach of any obligation described herein,
regardless of whether the obligation is fulfilled or unfulfilled, so long as
SEEC acts in good faith and in a commercially reasonable manner to meet the
maintenance and support objectives of the parties. Capitalized terms used
herein shall have the meanings expressly assigned thereto, if any, in the
Agreement, unless the context requires otherwise.
Both SEEC and VIASOFT will provide ongoing customer support of all releases of
the private-labelled products. VIASOFT will provide all Level 1 support; SEEC
will resolve any problems which reach ▇▇▇▇▇ ▇, and beyond, with response levels
as defined below. Notwithstanding any other provision of this Exhibit, ADW
Export will be supported by SEEC to the extent it deems appropriate, in its
discretion, and by VIASOFT to the extent it deems appropriate, in its
discretion.
During the term of the Agreement, by written notice to the other party, either
party may initiate a joint review by the parties of Exhibit B support
requirements (Sections 10 and 12), and the same will be revised, if at all, as
is mutually agreeable. In the event the parties cannot reach mutual agreement,
the negotiations shall be submitted to binding arbitration pursuant to Section
20 (g) of the Agreement for a reasonable resolution by the arbitrators. SEEC's
obligations pursuant to this Exhibit are subject to Section 16(f).
1 VIASOFT LEVEL 1 CUSTOMER SUPPORT
VIASOFT, as Level 1 support, will receive all initial questions and
problem reports from its customers and distributors. Where possible,
VIASOFT will respond with answers and/or resolutions to problems. If
VIASOFT is unable to resolve the question or problem, VIASOFT Customer
Support will use its best efforts to define the problem in sufficient
detail for SEEC to identify and correct the source of the problem.
Assistance from SEEC may be needed in the course of this detailed
definition process. VIASOFT will communicate problem resolution to the
customer or distributor. By mutual
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agreement of VIASOFT any SEEC for specific problems, SEEC may
participate in three-way conferences among VIASOFT, SEEC, and the
customer or distributor. Also, by mutual agreement of VIASOFT and SEEC
for specific problems, SEEC may assume the role of primary
communications with the customer or distributor.
2 SEEC LEVEL 2 CUSTOMER SUPPORT
SEEC, as Level 2 support, will receive questions and problem reports
from VIASOFT, and will respond with resolutions to problems within the
expected problem resolution times for the severity of the problem being
reported. The problem severity definitions, and the problem resolution
time commitments are listed below. The resolution time commitments from
SEEC are measured from the time a problem is first reported to SEEC by
VIASOFT. If SEEC is unable to reproduce the problem with the
information provided by VIASOFT, then the time commitments will be
measured from the time the problem becomes reproducible, as long as
SEEC informs VIASOFT within the response time commitments that the
problem is not reproducible.
3 RESPONSE TO SUPPORT CALLS
SEEC will respond to calls for assistance from VIASOFT Level 1 support
within three (3) regular business hours.
4 ON-SITE SUPPORT
In the event that a problem cannot be resolved within committed
resolution time goals, and the viability of the account, as a user or
as a satisfied customer, is seriously at jeopardy, and the VIASOFT
Development Manager for the product feels that an on-site technical
visit will expedite the resolution of the problem(s), SEEC agrees to
send a technician to the customer site to correct the problem(s) at
SEEC's expense, provided that if SEEC reasonably objects to the need
for such site visit, VIASOFT will bear the travel, meals, and lodging
expense. The on-site visits will be limited to North America (U.S. and
Canada). These visits will be limited to three (3) days or less, unless
mutually agreed by SEEC and VIASOFT.
5 SUPPORT HOURS
5.1 Regular business hours for SEEC are 8:30 am until 6:00 pm (both
Eastern Time), Monday through Friday. SEEC will provide the
name and phone number of a SEEC person to be contacted in case
of an emergency, whether inside or outside of regular business
hours.
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5.2 Critical customer situations periodically arise which require
support beyond regular business hours. VIASOFT works to
accommodate its customers by arranging to have people on call
during off-hours in such critical situations. VIASOFT asks the
customer to request and justify the request in advance, and
makes arrangements on a one-time-only basis for that particular
situation. SEEC agrees to use its commercially reasonable
efforts to accommodate VIASOFT and its customers or
distributors in the same manner.
6 SUPPORT EXTENTS
6.1 SEEC will provide full support for the current major release
and previous major release as upgraded by minor releases for
each software product.
6.2 SEEC will not remove product functionality from one product
release to another without prior review and agreement by
VIASOFT.
6.3 In the event a Severity 1 or 2 problem is reported in a release
and is fixed in a current release, VIASOFT Customer Support
will make reasonable efforts to convince the customer to
upgrade to the current release. In situations where the
customer still refuses to upgrade to the current release, SEEC
Customer Support will treat that as a Severity 1 or 2 problem.
In this case, the time when VIASOFT informs SEEC that such
customer is unwilling to upgrade, will be considered to be the
start time for SEEC to meet its response and resolution
objectives.
7 PROCEDURES
To enable a smooth operation of support to the customer, SEEC agrees it
will:
7.1 Designate an individual as Customer Support Interface for
support coordination, problem escalation, and status reporting.
VIASOFT will designate a like individual from its staff.
7.2 Staff the Customer Support function adequately enough to meet
response and resolution goals as the number of customers
increases over time.
7.3 Provide VIASOFT Customer Support with a machine-readable,
machine-searchable list of commonly asked questions and their
responses, and a list of known problems and their resolutions.
These lists will be updated on a monthly basis by SEEC and
provided to VIASOFT. The lists will be provided through
electronic file transfer or via
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diskette, and will be compatible with WordPerfect R5.x or with
the OS/2 Enhanced Editor.
7.4 SEEC and VIASOFT will use the remote feature of the "cc:Mail"
software package as a means of quickly and electronically
transferring programs, files, and other information back and
forth between the companies, especially as related to the
timely resolution of problems. Other electronic communication
vehicles may be pursued as mutually agreed by both SEEC and
VIASOFT.
7.5 When VIASOFT reports a problem to SEEC, the problem report will
include a VIASOFT problem number (STAR number) which has been
assigned at VIASOFT for tracking and resolution purposes. SEEC
will refer to this VIASOFT STAR number in all correspondences
relating to the problem.
7.6 In order to maintain the confidentiality of SEEC product code,
VIASOFT does not require a copy of the source code for SEEC
products. SEEC will provide all necessary information to
VIASOFT to enable VIASOFT to provide Level 1 support for the
SEEC products. This information will include debug
documentation, test scripts and test cases to help expedite the
problem identification and reproduction process at VIASOFT.
SEEC will provide VIASOFT with updated versions of these items
as upgrades to the SEEC products are made available.
8 INTENTIONALLY DELETED.
9 PROBLEM SEVERITY CODES
The table below defines the different problem severity codes used by
VIASOFT in communicating problems to SEEC. Different response and
resolution goals are tied to these severity assignments. SEEC
recognizes that circumstances may arise where VIASOFT may request a
more expedited resolution time than what is indicated by the
description below for the severity of the problem reported. This is
most likely to happen when the problem occurs in a TRIAL situation, or
in a key account where delayed resolution of the problem might be a
serious impediment to customer satisfaction and future customer
business. In those cases, SEEC agrees to use commercially reasonable
efforts to accommodate the VIASOFT business requests.
SEEC and VIASOFT will jointly keep a list of sample problems
categorized under the different seventies to be used as a model by the
Support personnel of both companies.
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Severity Description
1 Critical product problem - A problem will be considered to be
severity 1 under the following situations:
(a) Use of the product causes unacceptable side effects on
the customer's environment (for supported environments
per product specification) such as:
o Crashes customer's LAN
o Crashes operating system
o Crashes non SEEC application
o Corrupts disk
o Corrupts non-product files
(b) Product will not run in customer environment
(c) Use of the product repeatedly, i.e. sporadically or
consistently, corrupts the Application Dictionary at
one site, or at multiple sites in aggregate
2 High impact product problem - Use of the product results in
erroneous product behavior and is currently being experienced
by more than one site or more than one user; or the customer
indicates that the problem is currently causing a day-to-day
slip in a project. Excluded from this severity are product
design limitations known to VIASOFT prior to the customer
experiencing the problem.
3 Product error - The customer is able to use the software
product, but with restrictions on limited functions which are
not critical to overall operation.
4 Low priority product problem - The customer is able to use the
product subject only to minor inconveniences which are not
critical to the customer's operation and for which simple
circumventions are available. Usage deficiencies which are
nuisances in product operation or documentation. Also
classified at this level are documentation errors and training
class/material errors.
5 Enhancement request - The item reported by the customer is a
request for product functionality which is outside the design
intent or current capabilities of the software product.
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10 PROBLEM RESOLUTION COMMITMENTS
The commitment of effort and problem resolution goals are described
below by problem severity and relate only to customer-level problems.
The resolution time goals are measured from the time that the problem
is first reported to SEEC by VIASOFT. These resolution commitments are
consistent with commitments currently made by VIASOFT to its customers.
"Emergency Release" is a new version of the product that has limited
fixes on it and that has not gone through a thorough QA process.
"Maintenance Release" is a new version of the product that has all the
fixes since the most recent major release, minor release, or a
maintenance release and that has gone through a thorough QA process.
Severity Resolution Commitment
1 All required resources are applied to the problem for diagnosis
and resolution ASAP.
Commitments:
Circumvention/work-around that is acceptable to the customer
within 1 working day or an Emergency Release within 5 working
days.
Maintenance Release within 30 days
2 Addressed as high priority by Customer Support. Development
staff need to be involved as required for consultation or to
escalate in case of slower progress than goal.
Commitments:
Circumvention/work-around that is acceptable to the customer
within 5 working days or an Emergency Release within 10 working
days.
Maintenance Release within 30 days.
3 Circumvention, work-around or correction on a discretionary
basis, as time permits. No commitment for a short term solution
to the problem is made.
Commitments:
Resolved via circumvention/work-around on a time-available
basis.
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A resolution is provided within 30 working days that indicates
the current or future planned action to remedy the situation.
Source-fixed in the next major or minor release of the product.
4 Circumvention, work-around or correction on a discretionary
basis, as time permits. No commitment for a short term solution
to the problem is made.
Commitments:
A resolution within 60 working days that provides a solution or
indicates the current or future planned activity to remedy the
situation.
5 The item will be considered for implementation in a future
general product release. Any action is discretionary. No
commitment is made.
Commitments:
The problem is maintained in the queue for future enhancement.
A severity 1 or 2 problem is deemed to be resolved when the problem no
longer exists or its severity level is reclassified to 3, 4, or 5 by
mutual agreement of SEEC and VIASOFT.
11 PRODUCT PLANS AND COMMITMENTS FOR NEW RELEASES
Except as expressly set forth in the Agreement, all software production
shall be the sole responsibility of SEEC, and SEEC shall manage all
aspects of acquiring and directing technical resources necessary to
sustain software production.
SEEC agrees to make commercially reasonable efforts to release at least
two new releases (major or minor release) of each Licensed Program each
calendar year.
11.1 Delivery of Product Diskettes
VIASOFT is interested in conducting its own QA Testing for the
minor and major releases as per this exhibit and SEEC agrees to
provide VIASOFT with the QA Version or the early Beta version
of the private labelled product or any upgrades to allow
VIASOFT to do so. VIASOFT will provide SEEC with a list of
product problems that are discovered during this testing,
categorized as follows:
(a) product regression (problems that did not exist in the
previous release).
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(b) problems that are not fixed correctly in situations
where a previously reported problem was fixed in that
release.
(c) problems with any new features that were implemented
in this release.
SEEC agrees to fix all category (a) and (b) problems before the
end of the Final Beta Testing Period. SEEC will use its
discretion to fix the problems in category (c).
VIASOFT intends to conduct its own Final Beta Testing program
with the Final Beta Testing limited to a maximum of six active
VIASOFT Beta Test Sites for each new release of a product; SEEC
agrees to provide VIASOFT with the Final Beta versions of the
Private Labelled Products for each new release of a product to
allow VIASOFT to do so. SEEC will make reasonable efforts to
resolve all Severity 1 and 2 problems and category (a) and (b)
problems discovered by the VIASOFT and SEEC Beta Sites, before
the end of the Final Beta Testing period.
SEEC agrees to provide the Final Beta version of the private
labelled product at the same time as the Final Beta version of
the non-private labelled product is made available by SEEC to
its customers for QA, Final Beta, or General Availability
unless VIASOFT requests otherwise.
11.2 Coordination Process
SEEC will keep VIASOFT apprised of any changes to the release
content or the delivery dates of the product upgrades on a
frequent basis (not less than once a month).
11.3 Site Visits
With SEEC's prior knowledge and at mutually agreeable time
frames, VIASOFT representatives will visit SEEC With SEEC's
prior knowledge and at a mutually agreeable time and in the
presence of ▇▇▇▇ ▇▇▇▇ or another designated SEEC
representative, VIASOFT will have the right to visit ERA once
within 12 months of the signing of the agreement. With SEEC's
approval, VIASOFT may visit SEEC and SEEC's other development
sites at a mutually agreeable time.
11.4 Product Enhancement Plan and Release Projections
VIASOFT wishes to assist SEEC in determining and solidifying
product development plans. An agreed upon product enhancement
plan with commencement and delivery dates is shown below. Such
plan and dates are subject to periodic amendment, by
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mutual agreement of the parties, as market conditions and
requirements evolve. Periodically, VIASOFT will provide SEEC
with enhancement suggestions and a list of high priority
problems that need to be included in the upcoming releases of
the product. SEEC agrees to consider such suggestions and
requests in good faith and to make such product changes as are
required by this Agreement or as are otherwise mutually
agreeable.
For each release of each Licensed Program, SEEC will provide to
VIASOFT non-private labelled versions of the product
documentation (and versions showing all changes, i.e.,
"black-lined", where applicable) at the start of QA phase, Beta
Phase, and at General Availability. If the product
documentation is not ready at these phases, then it will be
delivered as soon as it is available, but no later than the
time it is shipped to any SEEC customer.
11.5 Development Plans and Delivery Dates
VIASOFT has reviewed the SEEC 2.0 beta release and identified
several enhancement options. In general, these enhancements
fall into three categories:
o Conformance to ESW conventions (as negotiated),
o Functionality, and
o Usability.
The Development Plan and Schedule set forth below addresses the
three categories.
11.6 PHASE I ENHANCEMENTS QA RELEASE DATE: 15 DAYS FROM THE
COMMENCEMENT DATE
Phase I involves modifying the cosmetics and conventions of
SEEC products to match those of VIASOFT's Existing Systems
Workbench (ESW). SEEC agrees to make and release the following
enhancements (and those additional enhancements the parties
agree upon) :
o Modify all pertinent components to reflect VIASOFT
rather than SEEC or COBOL Analyst, or
ADW Export. These include, but are not limited to:
a) Installation text used in SETUP.EXE (including
SETUP.LST) and suggested values for installation
directories
b) Online Help
c) README file text, if any
d) Invoke the new VIASOFT provided "About" dialog
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o Invoke the new "Loading" VIASOFT dialog while a
primary product component (Configure, Capture,
Analyst, Export) is loading. This screen will include
VIASOFT Logo, Product Logo, loading information,
VIASOFT Trademarks, and SEEC Copyright.
o Remove copyright information from the logon screen.
o Modify the following terms to reflect VIASOFT terms:
"Structure Chart" - Change to "Structure View"
"Logic Display" - Change to "Tree View"
"Variables" - Change to "Data Items"
"Indirect" - Change to "Alias"
"Data Dictionary" - Change to "Repository" when
the abbreviation is used.
Change corresponding directory
names also.
"▇▇▇▇▇▇▇▇" - Length
"▇▇▇▇▇▇" - Cyclomatic
"▇▇▇▇▇▇▇" - Control Variable
"Add Item" - "Add Impact Item" or "Add
Impact"
o Make minor changes to the terminology in COBOL Subsets
to map to VIASOFT's naming convention.
o Review and ensure that the product is packaged as one
product without options if VIASOFT decides to always
sell it as a bundled product, otherwise the product
should be packaged as one product with options rather
than as separate products.
11.7 PHASE II A QA START DATE: APR. 1, 1994
BETA START DATE: MAY 1, 1994
COMMITMENTS:
SEEC commits to make and release the following
enhancements, subject to mutually agreeable changes:
VERSION 2.1
o Fix category 1 bugs as reported by VIASOFT as
a result of running the VIASOFT COBOL parser
validation test suite
o Review and respond to usability issues (report
forthcoming).
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o Review dialogs for consistency in using the
"Ok" versus "Close" pushbuttons as the action
to exit the dialog.
11.8 PHASE II B QA START DATE: JUNE 30, 1994
BETA START DATE: JULY 31, 1994
OTHER FEATURES:
Although, SEEC does not commit to the implementation
of the following features, SEEC will make reasonable
efforts to incorporate as many of these features or
mutually agreeable alternate features as possible
limited to a maximum of 4 man-months of product
development effort.
o Develop interface with VIASOFT's product that
downloads all components necessary for the
COBOL Analyst Capture facility.
o Synergy items to enable COBOL Analyst to
integrate better with VIASOFT's ESW/2
(Cooperative Existing Systems Workbench for
OS/2). Details to be mutually agreed upon.
12 DEFINITION OF "MATERIAL DEFAULT" FOR SUPPORT SERVICES
Each of the following shall constitute the basis for a "Material
Default" for purposes of Section 16(c) of the Agreement, subject to
Section 13 below:
The problems described below will not include any problems internally
discovered by VIASOFT only.
1 When the total of technically unique Severity 1 and Severity 2
problems reported by VIASOFT (other than problems discovered by
VIASOFT only) in the most recent 120 calendar days is less than
or equal to 60:
o More than 15 have exceeded their goal by 10 working
days.
2 When the total of technically unique Severity 1 and Severity 2
problems reported by VIASOFT (other than problems discovered by
VIASOFT only) in the most recent 120 calendar days is greater
than 60 occurrences of any one of the following situations:
o Less than 80% of the Severity 1 problems are resolved
in 5 working days, however, if the number of Severity
1 problems is less than 20, then more than 4 have not
been resolved in 5 working days.
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o Less than 90% of the Severity 1 problems are resolved
in 10 working days, however, if the number of Severity
1 problems is less than 20, then more than 2 have not
been resolved in 10 working days.
o Less than 70% of the Severity 2 problems are resolved
in 10 working days.
o Less than 80% of the Severity 2 problems are resolved
in 15 working days.
o Less than 90% of the Severity 2 problems are resolved
in 20 working days.
3 When the total of technically unique Severity 3 problems
reported by VIASOFT (other than problems discovered by VIASOFT
only) in the most recent 120 calendar days is greater than 60:
o Less than 80% of the Severity 3 problems are resolved
in 30 working days.
4 *** INTENTIONALLY DELETED ***
5 For any week when the total number of calls from VIASOFT Level
1 support to SEEC is less than 10:
o if more than 5 calls have not been responded to within
3 business hours.
6 For any week when the total number of calls from VIASOFT Level
1 support to SEEC exceeds 10:
o if less than 80% of the calls have been responded to
within 3 business hours.
7 If SEEC fails to perform as required under sections 6.1, 6.2,
7.2, 7.6, 11.1 or 11.4 (second paragraph), of this Exhibit.
8 If SEEC fails to make at least one major release and one minor
release of each License Program each VIASOFT fiscal year during
the term of this Agreement. A "major" release is at least 40
man-months of effort, and a "minor" release is at least 15
man-months of effort.
9 If Phase I is delayed by more than 15 days, or Phase II A is
delayed by more than 60 days, unless otherwise mutually agreed.
13 DECLARATION OF MATERIAL DEFAULT
Whenever a situation has arisen as described in Section 12, subsections
1 through 8, VIASOFT management will notify SEEC Senior Management of
the situation and arrange a meeting (by tele-conference or in person)
between VIASOFT management and
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SEEC Senior Management to review the situation. This meeting must be
held within 2 business days of the original notification, unless
VIASOFT agrees to a later time. The management teams will review the
situation and SEEC will have an opportunity to propose a workable plan
of action to remedy it within 30 days. It the plan is not agreeable to
VIASOFT, or if during the 30 day plan implementation period VIASOFT has
reason to believe that the plan is not being fully implemented, or if
the problem is not resolved in 30 days, then VIASOFT will so notify
SEEC in writing, and, if the conditions in Section 14 apply, SEEC will
have a final cure period as set forth in Section 14. Otherwise, VIASOFT
shall have the right to immediately declare a "Material Default."
14 FINAL CURE PERIOD
If a Change in Control of SEEC has not occurred, SEEC Bankruptcy has
not occurred, and the "50% Support Level" (defined below) is being met,
then instead of declaring "Material Default", the following will apply:
For the six months following the event described in 13 above, for each
month that the default has not been cured, the VIASOFT Maintenance
Royalties will be reduced by an amount equal to one-sixth of the
"Average Monthly Maintenance Royalty".
From the seventh month following the event described in 13 above, for a
period of six months thereafter, for each month that the default has
not been cured, the VIASOFT Maintenance Royalties will be reduced by an
amount equal to one-third of the "Average Monthly Maintenance Royalty".
If at any time during the 12 months described above, SEEC's support
does not satisfy the "50% Support Level", or if at the end of the 12
months the default remains uncured, then VIASOFT will have the right to
immediately declare a "Material Default".
"50% Support Level" is defined as the criteria set forth in Section 12
above but using the time period for each criteria that is twice the
amount of time specified in that subsection.
"Average Monthly Maintenance Royalty" will be the average monthly
Maintenance Royalty for the 12 months preceding the month in which the
computation is being made. If this Agreement has been in existence for
less than 12 months, then the average will be computed for the entire
duration this Agreement has been in effect.
The provisions of this Section 14 are not intended to constitute
penalties. Rather, they provide a reasonable basis
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for an extended cure period for SEEC with reasonable estimates of
damages to VIASOFT during such period.
If during the final cure period described in this Section 15 (the
"Final Cure Period") the level of support provided by SEEC drops below
the "50% support level" or after the Final Cure Period the support
default constituting the "Material Default" has not been cured,
VIASOFT, will have the right, at its option, to bring VIASOFT
management and VIASOFT technical personnel to SEEC's facilities to
manage the level 2 support with the assistance of SEEC support
personnel, or to take the SEEC support personnel and all required
source code (and related tools, documentation and other required
materials) for Licensed Programs to VIASOFT's facilities and manage the
level 2 support from there. In either case, VIASOFT will pay all the
reasonably incurred travel, meals and lodging costs of the SEEC
personnel and will pay SEEC reduced Maintenance Royalties of ten
percent (10%) rather than thirty percent (30%). The SEEC personnel
working at VIASOFT's facilities pursuant to this Section will remain
SEEC employees for all purposes (including without limitation salary,
payroll taxes, benefits, etc.) and will be responsible for all product
manufacturing. VIASOFT will reimburse SEEC for its actual and
reasonable direct costs incurred with respect to such employees
(salary, payroll taxes, benefits, etc.) for such period of time as
VIASOFT is managing support hereunder. All Licensed Programs so
manufactured shall remain SEEC's responsibility and will be delivered
to VIASOFT as if this Section 15 had not been invoked (including
without limitation for purposes of Sections 5 (g), 12 and 14 (h)), and
the SEEC personnel will also make product modifications available to
SEEC to allow SEEC to provide support to SEEC customers. The parties,
by mutual agreement, will determine the number of SEEC support
personnel to be used by VIASOFT, the duration of such use, and what
procedures will be maintained with respect to the source code to ensure
the protection of SEEC's interests therein, and failing mutual
agreement, either party may submit the dispute to binding arbitration
under Section 20(g) for a reasonable resolution by the arbitrator.
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EXHIBIT C
TO
INTERNATIONAL SOFTWARE MARKETING AND LICENSE AGREEMENT
--------------------------------------------
SEEC'S EXISTING SUB-DISTRIBUTORS
Sub-Distributor Product Territory
--------------- ------- ---------
1. Case Consult Gmbh COBOL Analyst and Germany, Austria,
Add-ons Switzerland, Benelux
2. Case Consult, Belgium COBOL Analyst and Benelux
Add-ons
3. SIC Emertech COBOL Analyst and Spain
Add-ons
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EXHIBIT D
TO
INTERNATIONAL SOFTWARE MARKETING AND LICENSE AGREEMENT
--------------------------------------------
VIASOFT & SEEC CUSTOMER LISTS
This exhibit will contain the list of "VIASOFT CUSTOMERS" and "SEEC CUSTOMERS".
The "VIASOFT CUSTOMERS" list will contain all current VIASOFT customers
(Customer name and Sites) who are currently on maintenance and who are not in
the list of "SEEC CUSTOMERS". The list of "SEEC CUSTOMERS" will contain the
list of all current SEEC customers (Customer name and Sites) who are currently
on maintenance that are also VIASOFT customers. These lists will only contain
customers that are in U.S. or Canada.
Once the agreement is signed, the lists of "VIASOFT CUSTOMERS" and "SEEC
CUSTOMERS" can not be amended to add new customers unless mutually agreed upon
by the two parties.
VIASOFT CUSTOMERS: See Attached.
SEEC CUSTOMERS See Attached.
Approved:
VIASOFT, INC. SEEC, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By /s/ ▇▇▇▇ ▇▇▇▇
----------------------------- -----------------------------
Its Executive Vice President Its President & CEO
---------------------------- ----------------------------
Date: 11/29/93 Date: 11/29/93
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================================================================================
Exhibit D-2
Company Name City State Country
--------------------------------------------------------------------------------
ADC-Minnesota Mining & Manufact St. ▇▇▇▇ MN
ADC Telecommunications Bloomington MN
ADC Telecommunications Minneapolis MN
ADC Telecommunications Minnetonka MN
AdminaStar, Inc Indianapolis IN
Advantis Chicago IL
Advantis Hoffman Estates IL
Advantis Itasca IL
Advantis Riverwood IL
Advantis Schaumburg IL
Aetna Life Insurance Co. Hartford CT
Aetna Life Insurance Co. Middletown CT
Agway, Inc. ▇▇▇▇▇▇ NY
Aid Association for Lutherans Appleton WI
Airborne Express Seattle WA
Alamo Rent A Car, Inc. Ft. Lauderdale FL
Alberta Gov't Dept of Public Works Edmonton AB CANADA
Albertsons, Inc. Boise ID
Alcatel Network Systems Raleigh NC
Allied Signal - Corporate Data Ctr. Phoenix AZ
Allied Signal - Corporate Data Ctr. Tempe AZ
Allnet Communication Services ▇▇▇▇▇▇▇ Farms MI
Allstate - Northbrook Mundelion IL
Allstate - Northbrook Northbrook IL
Allstate - Northbrook S. Barrington IL
American Airlines DFW Airport TX
American Airlines Tulsa OK
American Assoc. of Retired Persons Lakewood CA
American Cyanamid Company Wayne NJ
American Express Phoenix AZ
American General Houston TX
American International Group East Orange NJ
American International Group Livingston NJ
American National Can Company Chicago IL
American National Property Casualty Springfield MO
American President Lines Alameda CA
American President Lines Oakland CA
American President Lines Rancho Cordova CA
Ameritech Services Inc. - Chicago Chicago IL
Ameritech Services Inc. - Chicago Hoffman Estates IL
Ameritech Services Inc. - Michigan Southfield MI
Ameritech Services Inc. - WI Waukesha WI
Amsouth Bank N.A. Birmingham AL
▇▇▇▇▇▇▇▇ Consulting Dallas TX
▇▇▇▇▇▇▇▇ Consulting Houston TX
▇▇▇▇▇▇▇▇ Consulting Irving TX
▇▇▇▇▇▇▇▇ Consulting ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Corporation St. Louis MO
??????, Inc. Houston TX
Arizona Dept Of Economic Security Phoenix AZ
Arizona State University Tempe AZ
Army Air Force Exchange Service Dallas TX
AT&T - Colorado Aurora CO
AT&T - Colorado Newark NJ
74
================================================================================
Exhibit D-3
Company Name City State Country
--------------------------------------------------------------------------------
AT&T - IMS Dallas TX
AT&T - IMS Greensboro NC
AT&T - IMS Orlando FL
AT&T - Kansas City Kansan City MO
AT&T - Merrimack Valley Works North Andover MA
AT&T Easy Link Services Parsippany NJ
AT&T Easy Link Services Piscataway NJ
AT&T Paradyne Largo FL
Atlas Van Lines Evansville IN
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company Framingham MA
Bank of New York New York NY
Bank of New York - NJ Teaneck NJ
Bank of Nova Scotia Scarborough ON CANADA
Bankers Trust Services Jersey City NJ
Bankers Trust Services New York NY
▇▇▇▇▇▇▇ Technologies Jacksonville FL
▇▇▇▇ Atlantic Beltsville MD
▇▇▇▇ Atlantic Silver Spring MD
▇▇▇▇ Helicopter Textron, Inc. Fort Worth TX
▇▇▇▇ of Pennsylvania Philadelphia PA
Beneficial Data Processing Peapack NJ
Blue Cross Blue Shield Of CT North Haven CT
Blue Cross Blue Shield Of KS City Kansas City MO
Blue Cross Blue Shield Of MO St. Louis MO
Blue Cross Blue Shield Of NC Durham NC
Blue Cross Blue Shield Of NE Omaha NE
Blue Cross Blue Shield Of OR Portland OR
Blue Cross Blue Shield Of TX Richardson TX
Blue Cross Blue Shield Of UT Salt Lake City UT
Boatmen's Bancshares, Inc. Albuquerque NM
Boatmen's Bancshares, Inc. St. Louis MO
Boeing Computer Services - KS Wichita KS
Boeing Computer Services - PA Eddystone PA
Boeing Computer Services - PA Seattle WA
Boeing Computer Services - WA Renton WA
Boeing Computer Services - WA Seattle WA
Boeing Computer Services - WA Tukwila WA
Boise Cascade Office Products Itasca IL
Boston Edison Company Boston MA
▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇▇ Plainsboro NJ
British Columbia Telephone Burnaby BC CANADA
Burlington Industries Burlington NC
Burlington Industries Greensboro NC
Burlington Northern Railroad Ft. Worth TX
Burlington Northern Railroad St. ▇▇▇▇ MN
Cable & Wireless Communications Vienna VA
CAE Link Corporation Binghamton NY
Cajun Electric Power Corporation Baton Rouge LA
California Franchise Tax Board Sacramento CA
▇▇▇▇▇▇▇▇ Soup Company Camden NJ
Canada Life Assurance Company ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Canada Post Corporation Ottawa ON CANADA
Canadian Imperial Bank of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Canadian ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
75
================================================================================
Exhibit D-4
Company Name City State Country
--------------------------------------------------------------------------------
Capital Group, Inc., The Brea CA
Capitol Holding Corporation Louisville KY
Caterpillar Inc. East Peoria IL
Central Freight Waco TX
Central Illinois Public Service Springfield IL
Central Life Assurance Company Des Moines IA
Central Telephone Company Chicago IL
Central Telephone Company Lincoln NE
Central Trust Bank Jefferson City MO
Cessna Aircraft Company Wichita KS
Charter Medical Macon GA
Chem-Network New York NY
Chem-Network Somerset NJ
Chemical Bank - New York New York NY
Cincinnati Financial Fairfield OH
Citibank Long Island City NY
Citibank New York NY
Citibank Weehawkin NJ
City of LA Los Angeles CA
CNA Insurance Chicago IL
▇▇▇▇▇▇▇ Company Wichita KS
Colonial Life & Accident Insuranc Columbia SC
Columbia Healthcare Corp Louisville KY
COM/Energy Service Company Cambridge MA
COM/Energy Service Company Wareham MA
Communications Data Services Des Moines IA
Community Mutual Insurance Cincinnati OH
Community Mutual Insurance Worthington OH
Computer Power Inc. Jacksonville FL
Computrol Chesterfield MO
Conoco Ponca City OK
Consolidated Natural Gas Clarksburg WV
Consolidated Natural Gas Independence OH
Consolidated Natural Gas Pittsburgh PA
Consumers Gas Company Ltd. Scarborough ON CANADA
Consumers Gas Company Ltd. Willowdale ON CANADA
Consumers Power Company Jackson MI
Continuum Company, Inc., The Austin TX
▇▇▇▇▇▇ & Company Chicago IL
County of Fairfax Fairfax VA
County of Riverside Riverside CA
County of San Diego San Diego CA
▇▇▇▇▇▇▇ Maritime Corporation Oakland CA
▇▇▇▇▇▇▇ Maritime Corporation San Francisco CA
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Scientific Houston TX
Dallas Morning News Dallas TX
Dayton Light & Power Company Dayton OH
Defense Lodgistics Agency Alexandria VA
Delta Airlines, Inc. Atlanta GA
Depository Trust Company New York NY
Detroit Edison Detroit MI
Dial Corporation Irving TX
Dial Corporation Phoenix AZ
Dial Corporation Scottsdale AZ
76
================================================================================
Exhibit D-5
Company Name City State Country
--------------------------------------------------------------------------------
Dilliards Department Store Little Rock AR
DITSO Denver CO
Defense Lodgistics Agency Mechanicsburg PA
DST Systems Inc. Kansas City MO
E-Systems Inc. Garland TX
EG&G Mound Applied Technology Miamisburg OH
Electronic Data Systems Corporation Hazelwood MO
Electronic Data Systems Corporation Maryland Heights MO
Employers Insurance Of Texas Dallas TX
Esprit San Francisco CA
▇▇▇▇▇ ▇▇▇▇▇▇, Inc. Melville NY
Executive Life Insurance Company Los Angeles CA
Exxon Company USA Houston TX
▇▇▇▇▇▇ ▇▇▇ Washington DC
Farm Bureau Insurance Company West Des Moines IA
Farm Credit Banks Of Spokane Spokane WA
Farmers Insurance Company Los Angeles CA
Federal Data Corporation Mechanicsburg PA
FHP Costa Mesa CA
Fidelity Investments-Dallas Devel. Irving TX
Fidelity Management & Research Boston MA
Fidelity Management & Research Irving TX
First American Data Services, Inc. Reston VA
First Data Corporation/TSSG Boston MA
First Health Services Corporation Glen Allen VA
First Interstate Bank Of Arizona Los Angeles CA
First Interstate Bank Of Arizona Tempe AZ
First Interstate Bank of Oregon Portland OR
First Nationwide Bank Daly City CA
First Nationwide Bank Folsom CA
First Nationwide Bank Sacramento CA
First Nationwide Bank San Francisco CA
Firstar Information Services Corp. Milwaukee WI
FISERV Fresno CA
FISERV Philadelphia PA
FISERV Pittsburgh PA
Florida Power Corporation St. Petersburg FL
FMC Corp. Dallas TX
FoxMeyer Drug Company Carrollton TX
FoxMeyer Drug Company Dallas TX
Freedon Group - AGIS Des Moines IA
Freedon Group - AGIS Urbandale IA
GE Aerospace Cincinnati OH
GE Aerospace King Of Prussia PA
GE Aerospace Mason OH
GE Aerospace Philadelphia PA
GE Medical Systems Group Louisville KY
GE Medical Systems Group Milwaukee WI
GE Medical Systems Group New Berlin WI
General American Life Insurance Co. St. Louis MO
General Casualty Companies Sun Prairie WI
General Dynamics Ft. Worth TX
General ▇▇▇▇▇, Inc. Minneapolis MN
Geneva Steel Orem UT
77
================================================================================
Exhibit D-6
Company Name City State Country
--------------------------------------------------------------------------------
Geneva Steel Provo UT
Georgia Pacific Brunswick GA
Georgia-Pacific Corp. - Wisconsin Port ▇▇▇▇▇▇▇ WI
Gov't du Quebec/Ministere du Rev. Quebec CANADA
Gov't du Quebec/Ministere du Rev. Sainte-▇▇▇ PQ CANADA
Grand Metropolitan Food Sector Minneapolis MN
Great Atlantic & Pacific Tea Co. Montvale NJ
Great Lakes Higher Education Corp. Madison WI
Great West Life Assurance Company Winnepeg MB CANADA
Group Health Inc. New York NY
GTE Data Services Temple Terrace FL
Gulf States Toyota Houston TX
Halliburton Arlington TX
Halliburton Carrollton TX
Hallmark Cards Kansas City MO
Hawaii Medical Service Association Honolulu HI
Health Charge Corporation Skokie IL
Hill Airforce Base Hill AFB UT
Holden Group Los Angeles CA
Holden Group Santa Monica CA
Home Savings of America Irwindale CA
Household Credit Services Salinas CA
Household International, Inc. Northbrook IL
Houston Light & Power Houston TX
HQ SCCC/WPSP (HQSAC)(GSA29) Offut AFB NE
HQ SCCC/WPSP (HQSAC)(GSA29) ▇▇▇▇▇▇ AFB NE
▇▇▇▇▇▇'▇ Bay Company ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Aircraft Company El Segundo CA
▇▇▇▇▇▇ Aircraft Company Fullerton CA
Humana Incorporated Louisville KY
Huntington Memorial Hospital Pasadena CA
Illinois Power Company Decatur IL
IMS America Ltd. Plymouth Meeting PA
Independent Order of Foresters ▇▇▇ ▇▇▇▇▇ ON CANADA
Information Systems of America Atlanta GA
Integral Systems, Inc. Walnut Creek CA
Integrated Systems Technology Corp. Medford MA
Internal Revenue Service Martinsburg WV
Internal Revenue Service Washington DC
International Paper Memphis TN
ITT Consumer Financial Corporation Minneapolis MN
▇▇▇▇ ▇▇▇▇▇▇ Corporation Clearwater FL
▇▇▇▇ ▇▇▇▇▇▇ Corporation Largo FL
Jeppesen ▇▇▇▇▇▇▇▇▇ Inc. Englewood CA
J. Case Racine WI
▇▇▇▇ ▇▇▇▇▇ Life Insurance Miami FL
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Company Decatur IL
▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance Boston MA
▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance Marlboro ▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Milltown NJ
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ New Brunswick NJ
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ North Brunswick NJ
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Raritan NJ
▇▇▇▇▇▇ Permanente - CA Walnut Creek CA
78
================================================================================
Exhibit D-7
Company Name City State Country
--------------------------------------------------------------------------------
▇▇▇▇▇▇ Permanente - Or Lake Oswego OR
▇▇▇▇▇▇ Financial Group Chicago IL
▇▇▇▇▇▇▇▇ Corporation Altamonte Springs FL
▇▇▇▇▇▇▇▇ Corporation Orlando FL
Kraft General Foods, Inc. Rye Brook NY
Kraft General Foods, Inc. White Plains NY
Kraft Incorporated Glenview IL
Kraft Incorporated Northfield IL
La-Z-Boy Chair Company Monroe MI
Lincoln National Corporation Fort ▇▇▇▇▇ IN
Lockheed Aeronautical Systems Marietta GA
Lockheed Information Technology Co. Denver CO
London Life Insurance ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Loral Defense Systems Akron OH
Lutheran Brotherhood Insurance Minneapolis MN
M&I Data Services, Inc. Milwaukee WI
Manufacturers Life Financial ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Marine Midland Bank Buffalo NY
Marine Midland Bank Syracuse NY
Maritime Telegraph & Telephone ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Marshalls Andover MA
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Information Systems Orlando FL
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/Dept Of Energy Oak Ridge TN
▇▇▇▇▇▇ Navigation Company Boulder CO
▇▇▇▇▇▇ Navigation Company San Francisco CA
Maxus Corporate Company Dallas TX
Maxus Corporate Company Irving TX
MBNA Information Services Addison TX
MBNA Information Services Addison TX
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Helicopter Mesa AZ
McKesson Corporation Rancho Cordova CA
McKesson Corporation San Francisco CA
McLane Data Systems Temple TX
Memphis Light, Gas & Water Memphis TN
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Island NY
▇▇▇▇▇▇▇ ▇▇▇▇▇ - NY, NY Somerset NJ
Methodist Hospital Houston TX
Metro Atlanta Rapid Transit (▇▇▇▇▇) Atlanta GA
Metropolitan Life Ins. - NY Greenville SC
Metropolitan Life Ins. - NY New York NY
Metropolitan Life Ins. - NY Wichita KS
Metropolitan Life Ins. - ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Michigan Mutual (Amerisure) Southfield MI
▇▇▇▇▇▇▇▇ & Company Spartanberg SC
Montreal Trust Montreal PQ CANADA
Montreal Trust Nuns Island, Verdun PQ CANADA
Mutual of America Boca Raton FL
Mutual of Omaha Omaha NE
Nabisco Brands Incorporated ▇▇▇▇▇▇ Barre PA
NAII Des Plaines IL
NASSCO San Diego CA
Nation's Bank Charlotte NC
Nation's Bank Dallas TX
National Bank Of Detroit Belleview MI
79
================================================================================
Exhibit D-8
Company Name City State Country
--------------------------------------------------------------------------------
National Bank Of Detroit Detroit MI
National Council Compensation Ins. Boca Raton FL
National Defense Headquarters Ottawa ON CANADA
National Defense Headquarters Ottawa ON CANADA
National Exhange Carrier Assoc. Whippany NY
Navistar International Corp. Brookfield WI
Navistar International Corp. Knoxville TN
Navistar International Corp. Oakbrook Terrace IL
NBC Data Center Fort ▇▇▇▇▇▇ FL
NBC Data Center New York NY
Nevada Power Company Las Vegas NV
Nevada Power Company Philadelphia PA
New England Business Service Groton MA
New Hampton, Inc. Hampton VA
New Jersey ▇▇▇▇ Madison NJ
Newfoundland Telephone Company St. John's NF CANADA
Nissan Motor Corporation Carson CA
Nissan Motor Corporation Gardena CA
Nissan Motor Manufacturing Corp. Smyrna TN
Nissan North America, Inc Denver CO
Nissan North America, Inc Englewood CO
North Carolina Farm Bureau Raleigh NC
Northern Virginia Community College Annadale VA
Northwest Natural Gas Boulder CO
Northwest Natural Gas Portland OR
Northwestern National Casualty Co. Brookfield WI
NSRI Seattle WA
Ohio Edison Akron OH
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Oregon Dept. of Transportation Salem OR
Oryx Energy Corporation Dallas TX
Pacific ▇▇▇▇ Millbrae CA
Pacific ▇▇▇▇ San Ramon CA
Pacific Gas & Electric - ▇▇▇▇▇ Bch ▇▇▇▇▇ Beach CA
Pacific Gas & Electric - Fairfield Fairfield CA
Pacific Gas & Electric - San ▇▇▇▇. San Francisco CA
PaineWebber Inc. Weehawken NJ
Pennsylvania Blue Shield Camp Hill PA
Pennzoil Company Houston TX
Peoples Gas, Light and Coke Company Chicago IL
Petro Canada Calgary AB CANADA
Pharmaceutical Card Systems, Inc. Scottsdale AZ
▇▇▇▇▇▇▇▇ Petroleum Company Bartlesville OK
Pier 1 Imports Fort Worth TX
Pier 1 Imports Ft. Worth TX
Policy Management Systems Corp Blythewood SC
Policy Management Systems Corp Columbia SC
Principal Financial Group Des Moines IA
Provident Mutual Life Insurance Co. Philadelphia PA
Prudential Re-Insurance Company Chicago IL
Prudential Re-Insurance Company Roseland NJ
Prudential Securities New York NY
Public Service Company Of NC Gastonia NC
Public Service Company Of NM Albuquerque NM
80
================================================================================
Exhibit D-9
Company Name City State Country
--------------------------------------------------------------------------------
Purdue University West Lafayette IN
Putnam Fiduciary Trust Quincy MA
Ranger Insurance Houston TX
Reliance Insurance Company Philadelphia PA
Reliance Insurance Company Voorhees NJ
Republic Financial Dallas TX
Republic Information & Comm. Svcs. New York NY
Revenue Canada Taxation ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ National Bank Washington DC
Rockwell International Richardson TX
Rockwell International Tulsa OK
Rockwell Intl./Info. Systems Center Anaheim CA
Royal Canadian Mounted Police ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Royal Insurance Company of Canada ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Sacramento Municipal Utility Dist. Sacramento CA
San Diego Gas & Electric San Diego CA
Sandia National Laboratories Albuquerque NM
Sanwa Bank California Monterey Park CA
▇▇▇▇ ▇▇▇ Hosiery Atlanta GA
▇▇▇▇ ▇▇▇ Hosiery Winston-Salem NC
▇▇▇▇ ▇▇▇ Knit Products Winston-Salem NC
School Board Of Orange County Orlando FL
▇▇▇▇▇ and White Clinic Hospital Temple TX
Seafirst Bank Glendale CA
Seafirst Bank Seattle WA
Sears Canada, Inc. ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Sears Canada, Inc. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Security Beneficial Group Topeka KS
Shared Services Center Harrisburg PA
Shared Services Center ▇▇▇▇▇▇-▇▇▇▇▇ PA
Shelter Mutual Insurance Company Columbia MO
▇▇▇▇▇ ▇▇▇▇▇▇ Shearson New York NY
Snohomish County PUD Everett WA
Solar Turbine San Diego CA
Solicitor General Ottawa ON CANADA
Southern California Gas Los Angeles CA
Southern California Gas Monterrey Park CA
Southern California Gas Van Nuys CA
Southern New England Telephone Meriden CT
Southern New England Telephone New Haven CT
Southern New England Telephone North Haven CT
Southwestern ▇▇▇▇ Mobile Systems Dallas TX
Southwestern ▇▇▇▇ Mobile Systems ▇▇▇▇▇▇ Branch TX
Southwestern ▇▇▇▇ Telephone St. Louis MO
Southwestern ▇▇▇▇ Telephone Co. Kansas City MO
Southwestern Public Service Company Amarillo TX
Spartan Stores, Inc. Grand Rapids MI
Spiegel Inc. Westmont IL
Sprint Corp. Apopka FL
Sprint Corp. Overland Park KS
SSA Health & Human Svcs. (GSA 28) Baltimore MD
St. Luke's Hospital Kansas City MO
St. ▇▇▇▇▇▇▇ Hospital Portland OR
Star Tribune Newspaper Minneapolis MN
81
================================================================================
Exhibit D-10
Company Name City State Country
--------------------------------------------------------------------------------
State Farm Mutual Auto Insurance Co. Bloomington IL
State Of California Sacramento CA
State Of Connecticut Hartford CT
State Of Maryland Annapolis MD
State Of Maryland Baltimore MD
State Of Tennessee Nashville TN
State Of Utah Salt Lake City UT
State Of Wisconsin Madison WI
Sun Companies Philadelphia PA
Sun Companies Tulsa OK
Sun Life Assurance Co. Of Canada ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Sun Life Assurance Co. Of Canada ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Suntrust Service Corporation Atlanta GA
Swedish Hospital Medical Center Seattle WA
Systematics Little Rock AR
Systematics - OH Twinsburg OH
Systemhouse Baltimore MD
Systemhouse Houston TX
▇. ▇▇▇▇▇ Company LTD Mississaugua ON CANADA
▇. ▇▇▇▇▇ Company LTD ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Tampa Electric Company Tampa FL
Tandy Information Services Ft. Worth TX
Target Department Stores Minneapolis MN
TDS Computer Services, Inc. Madison WI
??? Healthcare Systems San Jose CA
Texas Commerce Bank Houston TX
Thrifty Corp. Los Angeles CA
??? Companies, Inc., The Framington MA
Toronto ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Toronto ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
????? Infirmary New Orleans LA
TRW Information Services Division Allen TX
TRW Information Services Division Orange CA
TWA - Trans World Airlines Kansas City MO
Union Gas Limited Chatham ON CANADA
Union Pacific Railroad - Omaha Omaha NE
Union Pacific Resources Fort Worth TX
Union Pacific Technologies Clayton MO
Union Pacific Technologies St. Louis MO
Universal Underwriters Insurance Overland Park KS
University Of California San Francisco CA
University Of Colorado Boulder CO
University Of Minnesota Minneapolis MN
University of Western Ontario ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
University of Wyoming Laramie WY
UNUM Life Insurance Company Portland ME
US West Advanced Technology Englewood CO
US West New Vector Group Inc. Bellevue WA
USDA Nat'l Finance Center (GSA20) New Orleans LA
USDA Nat'l Finance Center (GSA20) Washingotn DC
Vanderbilt University Medical Cntr. Nashville TN
Vanguard Wayne PA
Veterans Administration Austin TX
Veterans Administration (GSA#2) ▇▇▇▇▇ IL
82
================================================================================
Exhibit D-11
Company Name City State Country
--------------------------------------------------------------------------------
Virginia Community College System Richmond VA
Vons Company, Inc. Arcadia CA
Vons Company, Inc. El Monte CA
Vons Company, Inc. Los Angeles CA
▇.▇. ▇▇▇▇▇▇▇▇ Niles OH
Wachovia Columbia SC (Protected
after
Dec. 31,
1993 unless
they become
a SEEC
Customer)
▇▇▇▇▇▇ Book Company Stamford CT
Warnaco, Inc. Bridgeport CT
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Company ▇▇▇▇▇▇ Plains NJ
▇▇▇▇▇ Fargo Bank El Monte CA
▇▇▇▇▇ Fargo Bank San Francisco CA
Western Southern Life Insurance Cincinnnati OH
Whirlpool Financial Corporation ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Workers Compensation Board Toronto ON CANADA
World Book Inc. Cicero IL
World Book Inc. Elk Grove Village IL
Worldspan Atlanta GA
Zenith Electronics Chicago IL
Zions Data Services Salt Lake City UT
Zurich Canada ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
===============================================================================
83
================================================================================
Exhibit D-12
Company Name City State Country
--------------------------------------------------------------------------------
?? ▇▇▇▇▇▇ Services Inc. New York NY
?? ▇▇▇▇▇▇ Services Inc. Newark NJ
MBNA Information Services Dallas TX
Mellon Bank Pittsburgh PA
▇▇▇▇▇▇▇ ▇▇▇▇▇ - NY, NY New York NY
▇▇▇▇▇ & Minor, Inc. Richmond VA
Rockwell Intl./Info. Systems Center Seal Beach CA
Shearson ▇▇▇▇▇▇ Brothers New York NY
Sony of Canada ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Sprint Corp. Kansas City MO
Travelers Corp. Hartford CT
United Services Auto Association San Antonio TX
Wachovia Columbia SC (only if
they pur-
chase COBOL
Analyst by
Dec. 31,
1993)
================================================================================
84
EXHIBIT E
TO
INTERNATIONAL SOFTWARE MARKETING AND LICENSE AGREEMENT
---------------------------------
SHRINK WRAP LICENSE
READ CAREFULLY BEFORE OPENING ENVELOPE
OPENING THIS PACKAGE INDICATES YOUR ACCEPTANCE OF THE FOLLOWING TERMS AND
CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU SHOULD
PROMPTLY RETURN THIS PACKAGE UNOPENED WITH THE OTHER COMPONENTS OF THIS PRODUCT.
This is a license agreement and not an agreement for sale. VIASOFT owns, or
has licensed from the owner, copyrights in the Software. You obtain no rights
other than the license granted to you by this Agreement. Title to the enclosed
copy of the Software, and any copy made from it, is retained by VIASOFT.
LICENSE
-------
YOU MAY:
1) Use the Software on only one machine at a time;
2) Make a copy of the Software, if not copy projected, for backup purposes only
in support of your Authorized use;
3) Transfer the Software and this VIASOFT Software License Agreement to another
party if the other party agrees to accept the terms and conditions of this
Agreement. If you transfer the Software, you must at the same time either
transfer all copies to the same party, or destroy any copies not
transferred. Such transfer of possession terminates your license from
VIASOFT.
YOU AGREE NOT TO:
1) Use copy, modify, or transfer copies of the Software except as expressly
provided for this Agreement;
2) Reverse assemble or reverse compile the Software; and/or
3) Sublicense, rent, lease, or assign the Software or any copy thereof.
LIMITED WARRANTY
----------------
THIS SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER
EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE
QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH THE USER. SHOULD THE SOFTWARE
BE DEFECTIVE, YOU (AND NOT VIASOFT) ASSUME THE ENTIRE COST OF ALL NECESSARY
SERVICING, REPAIR, OR CORRECTION.
VIASOFT does not warrant the functions contained in the Software will meet
your requirements or that operation of the Software will be uninterrupted or
error free.
However, VIASOFT warrants the diskette(s) on which the Software is furnished to
be free from defects in material and workmanship under normal use for a period
of thirty (30) days from the date of delivery to the original user.
LIMITATIONS OF REMEDIES
-----------------------
VIASOFT's and its Licensor's entire liability and your exclusive remedy
shall be:
1) Replacement of any diskette not meeting VIASOFT's "Limited Warranty" and
which is returned to VIASOFT, or
2) If VIASOFT is unable to deliver a replacement diskette that is free of
defects in materials or workmanship as warranted, you may terminate your
license.
IN NO EVENT WILL VIASOFT OR LICENSOR BE LIABLE TO YOU FOR ANY DAMAGES,
INCLUDING ANY LOST PROFITS, LOST SAVINGS OR ANY INCIDENTAL OR OTHER
CONSEQUENTIAL DAMAGES, EVEN IF VIASOFT OR LICENSOR HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.
GENERAL
-------
You may terminate your license at any time by destroying all your copies of the
Program.
VIASOFT may terminate your license if you fail to comply with the terms and
conditions of this Agreement. upon such termination, you agree to destroy all
your copies of the Software.
Any attempt to sublicense, rent, lease or assign, or except as expressly
provided herein, to transfer any copy of the Software is void.
You agree that you are responsible for payment of any taxes, including personal
property taxes, resulting from this Agreement.
This Agreement is governed by the laws of the State of Arizona.
Should you have any questions concerning the Agreement, write to:
VIASOFT, INC., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO
BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE
AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, WHICH SUPERSEDES ANY PRIOR
AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO
THE SUBJECT MATTER OF THIS AGREEMENT.
CONFIDENTIAL 72
85
EXHIBIT F
TO
INTERNATIONAL SOFTWARE MARKETING AND LICENSE AGREEMENT
-------------------------
PROPOSED DEVELOPMENT PLANS
This Exhibit describes SEEC's current development plan with expected delivery
dates. SEEC may, at its sole discretion, change these plans as commercially
reasonable. Except as expressly set forth in Section 5 of this exhibit, SEEC
will not be deemed in breach of any obligation described herein, regardless of
whether the obligation is fulfilled or unfulfilled, as long as SEEC keeps
VIASOFT reasonably informed of its then current development plans, as long as
VIASOFT is not promoting a competing product. This does not require disclosure
of Confidential Information by SEEC.
1 TECHNICAL RESOURCES AND CERTAIN COMMITMENTS
Except as expressly set forth in the Agreement, all software production
shall be the sole responsibility of SEEC, and SEEC shall manage all
aspects of acquiring and directing technical resources necessary to
sustain software production.
VIASOFT desires to conduct its own Final Beta Testing program for the
new products in the COBOL Analyst Product Line, with the Final Beta
Testing limited to a maximum of six active VIASOFT Beta Sites for each
release of these products; SEEC agrees to provide Final Beta versions
of the private labelled versions of these products to allow VIASOFT to
do so. SEEC will make reasonable efforts to resolve all Severity 1 and
2 problems discovered by the VIASOFT and SEEC Beta Sites, before the
end of the Final Beta Testing period.
SEEC agrees to provide the private labelled version products at the
same time as the non-private labelled version of the products are made
available to customers of SEEC in Final Beta or General Availability
("GA") versions, unless VIASOFT requests otherwise.
2 DEVELOPMENT COORDINATION
SEEC will ensure that VIASOFT is kept abreast of product deliverables.
At the start of each new release, SEEC will provide to VIASOFT a
schedule identifying the release content and major milestones for that
release.
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3 PRODUCT DEVELOPMENT PLAN AND RELEASE PROJECTIONS
3.1 Periodically, VIASOFT will provide SEEC with enhancement suggestions
and a list of high priority problems that need to be included in the
upcoming new products. SEEC agrees to consider such suggestions and
requests in good faith.
3.2 For each new product in the COBOL Analyst Product Line, SEEC ▇▇▇▇
provide to VIASOFT non-private labelled versions of the product
documentation (and versions showing all changes, i.e., "black-lined",
where applicable) at the start of Final Beta Phase, and at General
Availability. If the product documentation is not ready at these
phases, then it will be delivered as soon as it is available, but no
later than the time it is shipped to any SEEC customer.
4.1 DEVELOPMENT PLANS AND DELIVERY DATES
4.1.2 PHASE II A FINAL BETA START DATE: MAR. 1, 1994
PLANNED FEATURES:
SEEC's current intentions are to make and release the following
enhancements:
o Develop SEEC Version 2.1 enhancements currently planned.
- Editing via annotations
- Facility to recapture a program that is already loaded
into the Application Dictionary with an option to Save
annotations, synonyms, and renames
- Enhanced system wide search
- Enhanced system wide cross reference and impact
analysis features
- Enhanced annotation facility (support for annotation
types and ability to query based on annotation type,
author, business rule.
o Implement a Microfocus Workbench Interface as determined by SEEC
4.1.2 PHASE II B FINAL BETA START DATE: MAY 31, 1994
PLANNED FEATURES:
SEEC's current intentions are to make and release the following
enhancements:
o Develop the LAN Server version of the COBOL Analyst product.
o Enhance the error reporting, and error recovery capabilities of
the Licensed Programs to improve the supportability of the
Licensed Programs. In particular, improve Application Capture
to recover from an error to continue to parse the rest of the
program without producing
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spurious error messages, thereby parsing the entire program in
a single run.
o Provide facilities for working with large numbers of
Applications, including: Reports (programs/objects within
applications by type); Find Application (in Capture or
Analyst).
o Fix all severity 2 bugs reported by VIASOFT as a result of
running the VIASOFT COBOL parser Validation Test Suite.
4.1.3 PHASE III FINAL BETA START DATE: DEC.31, 1994
PLANNED FEATURES:
SEEC's current intentions are to make and release the following
enhancements:
o 32 bit Windows NT version of the products.
o Support IDMS syntax 2nd COBOL II Release 3 subprograms in the
Application Capture and present same in COBOL Analyst.
o Resolution of all Severity 3 bugs reported by VIASOFT as a
result of running the VIASOFT COBOL parser Validation Test
Suite.
o JCL (compile, application) for basic file/program
relationships.
o (If not already implemented in Phase II B) develop interface
with VIASOFT's product that downloads all components necessary
for the COBOL Analyst Capture facility.
o (If not already implemented in Phase II B) Synergy items to
enable COBOL Analyst to integrate better with VIASOFT's ESW/2
(Co-operative Existing Systems Workbench for OS/2). Details to
be mutually agreed upon.
OTHER FEATURES:
SEEC's current intentions are to consider these additional features on
a time permitting basis:
o Enhance the debugging capabilities of the product as required.
o Enhance re-capture scenario, including:
- A "delete existing member" option, to support
recapturing stale members.
- Re-application of existing program knowledge (COBOL
type, synonyms, renames, annotations, etc.).
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- Re-capture of any (or all) those application members
that are stale. Reference the Application Definition
(above) to recapture each in the proper manner.
Produce complete recapture report.
o Develop additional metrics: "Knots" and "Essential Complexity".
o Define, display and store the Application Definition for
reference to all components (programs, files definitions, table
definitions, segment definitions, maps, etc.).
o Enhance Analyst to improve Synonym gathering heuristics.
Usability related:
o Allow reports to be run to a window; then optionally saved to
file.
o Enhance documentation to incorporate task-based scenarios.
o Provide context sensitive Help for all dialogs.
4.1.4 PHASE IV FINAL BETA START DATE: JUNE 30, 1995
OTHER FEATURES:
SEEC's current intentions are to consider the following features on a
time permitting basis:
o Enhance products to capture and present the following: -
COBOL PERFORM ranges
- CICS FCT (and possibly PPT) tables; also a mechanism
to capture equivalent information from the CICS System
Definition (CSD) file
- VSAM IDCAMs and associate with definition extracted
from COBOL
- IMS stage 1
- IMS DFSMDA Macro (determine Dds for IMS databases)
o Enhance Analyst as follows:
- Add object selection lists for files, data items,
paragraph labels, PERFORM ranges, and subprograms
- Provide an "exceptions" report facility to identify
program anomalies, e.g. dead data, dead code,
recursion (PERFORM range), live exits (paragraph via
PERFORM range), data item modified but not used, data
item used before initialized.
- Provide statistics for the program, files, PERFORM
ranges and other objects.
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o Further automate identification of synonym base elements and
generation of candidate selection lists; provide "object type"
filters for candidate selection lists.
o Enable COBOL Analyst to synergize or integrate better with
VIASOFT's mainframe Existing Systems Workbench (ESW). Details
to be mutually agreeable.
o Resolve all Severity 4 COBOL parser anomalies as reported by
VIASOFT from running the COBOL Parser Validation Suite.
4.1.5 PHASE V FINAL BETA START DATE: DEC.31, 1995
OTHER FEATURES:
SEEC's current intentions are to consider the following features on a
time permitting basis:
o Application Programming Interface (API) to the data dictionary.
o Expand Application analysis to capture/construct complete data
flow linkages between programs.
o Expand gathering of Application "glue" including:
- Capture JOB and CALL data to map data flows between
batch programs
- Establish semantic linkages between data objects
across programs via calls and file aliasing
- Establish global cross-references to file/record,
segment, table, map and other object usage
- Enhance application level impact analysis
o Expand Data Re-engineering (to be mutually determined).
5 DEFINITION OF "MATERIAL DEFAULT" FOR DEVELOPMENT SERVICES
The following are the conditions under which SEEC shall be in "Material
Default" of the Agreement for purposes of Section 16(c) of the
Agreement as it relates to Sections 1, 2, 3 and 4 of Exhibit F (meaning
that SEEC has 30 days to cure the default or VIASOFT can exercise its
remedies, including termination of the agreement at the end of the 30
days):
5.1 If SEEC does not provide (i) the Final Beta versions of the private
labelled products to VIASOFT to allow VIASOFT to conduct its own Final
Beta Testing
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program or, (ii) the General Availability ("GA") versions, as provided
in Section 1 above.
5.2 If SEEC violates Section 3.2 above.
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EXHIBIT G
TO
INTERNATIONAL SOFTWARE MARKETING AND LICENSE AGREEMENT
-------------------------
INITIAL MARKETING PLAN
The following outlines the projected Initial Market Plan. It is based on
information available to date and represents the requirements for fulfilling
marketing and sales requirements. It is provided in general terms and is
subject to modification based on timing, market conditions or other unknown
influences.
CUSTOMER DOCUMENTATION and TRAINING MATERIALS
To conform to VIASOFT packaging standards short and long term, the
customer documentation and training courseware will undergo two major
changes. The first will be to repackage/standardize the existing
documentation as is. This includes VIASOFT standard covers, binding and
page sizing at 7.5 in. by 9 in. The second change will entail expansion
and rewrite reflecting VIASOFT's years of professional documentation
and training experience in the COBOL maintenance market. One additional
requirement is existing ESW workshop materials include training modules
covering the new technology.
SALES COLLATERAL and PACKAGING
The product packaging/private labelling will begin immediately after
the signing of the agreement. Sales collateral will be developed to
support the selling process and trade shows. The anticipated materials
are listed below in the new Product Package, Product Trial Kit and
Student Training Kit below:
Product Package
- Documentation Set and Reference Cards (Bound 7.5 x 9)
- Diskettes (up to 4) and Labels
- Box/Sleeve/Filler
Student Training Kit
- Student Training Guide
- Student Quick Start Guide
- Student Certificate
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Product Trial Kit
- Literature Folder
- Whitepaper
- Backgrounder
- Brochure
- User Success Stories
- Product Description
- Diskettes (up to 4) and Labels
- Trial Agreement
SALES STAFFING
No increase in staffing for the Direct Sales, Client Services
Consultants, Education Specialists and Systems Engineers is anticipated
for this new technology. A new Telesales department will be created
with the following expected staffing levels subject to market
conditions and success of this new channel:
Year 1 Year 2 Year 3 Year 4 Year 5
TeleSales 1 1 1 1 1
Manager
TelesaIes Reps 2 3 4 5 6
Note: During the first year, the Telesales Manager will also carry a sales
quota.
INTERNAL TRAINING
Training of the Direct Sales Force, Client Services Consultants and
Education Specialists, Systems Engineers and the Telesales sales staff
will be jointly developed and conducted by SEEC and VIASOFT. It is
estimated to take approximately 4-6 weeks to design and deliver the
training program. There will be three different training programs
required: 1) A Direct Sales force training program. 2) A Telesales
training program. 3) A technical training program for Consultants,
Systems Engineers and Education Specialists.
PROMOTION
To supplement selling efforts, a constant direct mail campaign
consisting of 1 500 pieces every month will be launched. The intent of
the campaign is to expose the entire prospect base to the benefits of
the new technology every 90 days. Although advertising is not planned
currently, VIASOFT will evaluate the viability of advertising to
supplement the sales effort.
INITIAL MARKETPLACE LAUNCH
Approximately 90 days after execution of this agreement, an initial
marketplace launch focused on existing VIASOFT customers will commence.
The direct sales force will target larger accounts with a large
workstation population while the telesales organization attacks
smaller, less workstation populated accounts.
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93
Account selection and deployment of the sales channels will be jointly
planned and executed by management from both organizations.
Simultaneously, the direct mail campaign will be launched focusing on
new prospects as describe above.
PUBLIC RELATIONS
The new technology will be automatically included with the planned
industry analyst awareness program scheduled to begin in early 1994
time frame. Press announcements will be made within 30 days after
repackaging of the product Is completed and the sales channels are
market ready.
USER SUCCESS STORIES
Currently, VIASOFT has a program in place to cultivate and develop User
Success Stories. To include the new product into this program, several
'seed' copies will be provided to selected VIASOFT customers (8-10) at
no charge. In return, after 90 days, the customer will work with the
VIASOFT staff to develop initial User Success Stories. Once these
initial success stories are completed, additional User Success Stories
will be developed as part of the natural course of VIASOFT's existing
success story program.
TRADE SHOWS
Immediate steps will be taken to include the new product into the
existing trade show program. Additionally, VIASOFT will investigate and
take advantage of, when possible and feasible, other trade shows not
currently attended by VIASOFT.
PRELIMINARY SALES PROJECTIONS
Set forth below are VIASOFT's preliminary projections for the
COBOL/Analyst products to be sold under this Agreement. Such
projections are good faith projections and are not contractually
binding obligations or any guaranteed performance. The contract year
will be of 12 month duration starting 90 days from the commencement of
the agreement.
Contract Year Unit Sales
1st year 2,000
2nd year 3,000
3rd year 4,000
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EXHIBIT H
TO
INTERNATIONAL SOFTWARE MARKETING AND LICENSE AGREEMENT
[LOGO]
ERA CERTIFICATE
Era Software Systems Private Limited (ERA) a company created under Indian
Companies Act, 1956, hereby certifies to VIASOFT, Inc., a Delaware Corporation,
in order to induce VIASOFT, Inc. to enter into that certain International
Software Marketing and License Agreement with SEEC, Inc. (the "Agreement") (the
capitalized terms used in this Certificate have the same meanings as are
assigned thereto in the agreement unless the context requires otherwise) as
follows:
1. SEEC, Inc. and ERA own all intellectual Property Rights to the Licensed
Programs free and clear of any claims, liens or encumbrances, and SEEC, Inc.
has obtained all necessary authorizations from ERA to permit SEEC to
execute, deliver and perform the Agreement and no further authorizations or
consents from ERA are required in that respect. Without limiting the
foregoing, SEEC advises that the Licensed Programs were developed with
financing from ICICI. However, SEEC and ERA have been advised by ICICI, and
by legal counsel in India that the financing agreement does not give ICICI a
lien against the Licensed Programs, ICICI is aware of SEEC's intent to give
VIASOFT a license to the Licensed Programs and it has no objections to the
same. See letters attached.
2. During the term of the agreement, or during the twelve (12) month period
following termination or expiration of this Agreement, ERA will not without
VIASOFT's prior consent employ or solicit the employment of any person who,
to ERA's knowledge at that time is, or was during the prior twelve (12)
months, an employee of VIASOFT.
3. During the term of the Agreement, or during the twelve (12) month period
following termination or expiration of this Agreement, ERA will not without
VIASOFT's prior consent use or attempt to use, directly or indirectly, as a
distributor, sales representative or agent, any person or entity who, to
ERA's knowledge at that time is, or was during the prior twelve (12) months,
a distributor of VIASOFT.
CONFIDENTIAL 82 AAL20217.WP5 11/19/93
95
[LOGO]
4. ERA agrees that this Certificate shall be binding upon its successors and
assigns, and any transferee of its ownership interests in SEEC.
Dated November 23, 1993.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
By ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------
its DIRECTOR.
----------------
"ERA"
CONFIDENTIAL 83 AAL20217.WP5 11/29/93
96
[LETTERHEAD]
PACT/33932 September 29, 1993
▇▇. ▇▇▇▇ ▇▇▇▇
President
Seec, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Dear ▇▇. ▇▇▇▇:
Referring to your fax of September 27, 1993 regarding the PACT project,
we have to inform you that we do not have any objection to your entering into
marketing alliance with Viasoft. We have to further inform you that PACT does
not have a lien on the products/technology developed by you under the project,
which is subject to the overall terms and conditions specified in the
Cooperation and Project Financing Agreement dated June 20, 1990 signed by you
and Era Software with us.
With best regards,
Yours sincerely,
/s/ ▇. ▇. ▇▇▇▇▇▇
--------------------
▇. ▇. ▇▇▇▇▇▇
Assistant General Manager
CONFIDENTIAL 84 ALL20217.WP5 11/29/93
97
TO: RAVI
FM: KISHORE DATE: 27.10.93
FOR YOUR COMMENTS PLEASE.
Legal Practitioner
▇. ▇▇▇▇▇▇▇▇▇ High Court Of Andhra Pradesh
Advocate India
Regn No. 452/61986
--------------------------------------------------------------------------
Date: 24/09/93
M/s. Era Software Systems Pvt. Ltd.,
Regd. Office at ▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Road,
Hydershad - 500016.A.P.
Sirs,
Ref: Opinion as to whether I.C.I.C.I., has Lien against the Software
Developed under the C.P.F.A. Agreement - regarding.
I am a Lawyer authorized to practice in the High Court of Andhra Pradesh, India
with effect from 20th June 1986.
As desired by you I have studied the Cooperation and Project Financing
Agreement entered into by The Industrial Credit and Investment Corporation of
India Ltd., M/s Era Software Systems Pvt. Ltd. Hyderabad, India, and Seec
Incorporated, Pittsburgh, Pennsylvania, U.S.A.
I examined the Agreement to see whether I.C.I.C.I. has lien against the
Software Developed under the C.P.F.A. Agreement.
There is no clause indicating that I.C.I.C.I. has any lien against the Software
Developed under the C.P.F.A. Agreement. The Industrial Credit and Investment
Corporation of India Ltd. is merely entitled to receive payments as enumerated
in clauses C1 to C7 of the above referred agreement and nothing further.
I have also examined Clause L3 of the said Agreement, it reads as follows:
"In the event that potentially useful products or processes are developed as
the result of work financed by ICICI hereunder, but neither participant elects
to commercialize or license such products or processes, then ICICI reserves to
itself the right to commercialize such products/processes through any other
agency at their discretion. If so required by ICICI, the Proposer will execute
a Disclaimer/Release Assignment in favour of ICICI or any other Agency as ICICI
may direct."
The above clause is applicable only to potentially useful products developed as
a result of work financed by ICICI, which neither participant elects to
commercialize or license. The above clause cannot be construed as a general
lien against all the Software Developed under the C.P.F.A. Agreement.
I am therefore of the firm opinion that ICICI has no general lien against the
Software Developed under the C.P.F.A. Agreement and that it is merely entitled
to receive payments as enumerated in clauses C1 to C7 of the above referred
agreement.
▇. ▇▇▇▇▇▇▇▇▇
ADVOCATE
------------------------------------------------------------------------------
▇-▇-▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇-▇▇▇ 025, INDIA 866683
CONFIDENTIAL 85 ALL20217.WP5 11/29/93
98
EXHIBIT I
TO
INTERNATIONAL SOFTWARE MARKETING AND LICENSE AGREEMENT
-------------------------
CERTIFICATE OF PRINCIPALS
VIASOFT, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Gentlemen:
Each of the undersigned own, in the aggregate, more than fifty percent
(50%) of the outstanding legal and beneficial ownership interests (including
voting rights) in SEEC, Inc., a Pennsylvania corporation ("SEEC"), and each of
the undersigned hereby certifies to VIASOFT, Inc., that the undersigned, on
behalf of himself or itself and his or its successors and assigns, agrees to be
bound by Section 17 of that certain International Software Marketing and
License Agreement between you and SEEC (the "Agreement"). Section 17 provides
as follows:
At any time or times during the term of this Agreement that SEEC or its
principals desire to enter into a transaction or series of transactions
the result of which would be the sale of all or substantially all of
its business or of the product line (including all copyright interests)
that includes Licensed Programs, whether the same would be accomplished
by the sale or exchange of capital stock, merger, consolidation, or
sale Dr other transfer of assets (including long term or perpetual
exclusive licensing), or a transaction or series of transactions that
would result in a Change in Control of SEEC (any of the foregoing
transactions being a "Significant Transaction"), provided that a
Significant Transaction shall not include venture capital investments,
SEEC shall provide written notice of such desires to VIASOFT prior to
approaching any third parties. VIASOFT shall then have the first
Opportunity to negotiate with SEEC and/or its principals with respect
to accomplishing a mutually acceptable Significant Transaction. If
VIASOFT so elects, it will make a written offer with respect to a
Significant Transaction SEEC has solicited from VIASOFT. SEEC agrees,
for the thirty (30) day period following its written notice to VIASOFT
described above, to negotiate in good faith
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exclusively with VIASOFT (the "Exclusive Negotiating Period") and not
negotiate with, or solicit any offers or discussions from any third
party with respect to a significant transaction. VIASOFT's entitlement
to an Exclusive Negotiation Period and to make a Right of First Offer
shall be on a one-time basis only (except with respect to unsolicited
offers). After expiration of the Exclusive Negotiation Period, SEEC
shall be free to negotiate and/or accept any other offer which SEEC, in
its sole discretion, deems to be better than the VIASOFT offer, if any.
Notwithstanding the foregoing, such thirty (30) day period shall be
reduced to a seven (7) day period each time, if any, that SEEC receives
an unsolicited offer. With respect to unsolicited offers, if SEEC
elects in its sole discretion to continue to negotiate with the offeror
after the Exclusive Negotiation Period the VIASOFT Right of First Offer
will not apply to offers and counteroffers made in the course of such
continued negotiations by SEEC and/or the initiating offeror. If SEEC
thereafter abandons such negotiations, then commencing six (6) months
after such abandonment provided negotiations were not resumed in such
six (6) month period, the VIASOFT Right of First Offer will again apply
to offers by the same offeror.
This Section 17 shall be binding upon SEEC and the following
principals: ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇, and as a
condition of executing this Agreement, SEEC shall provide VIASOFT with a letter
from each such principal in the form attached hereto as Exhibit I agreeing to
be bound by this Section 17.
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The undersigned agrees to cause any transferee of the undersigned's
ownership interests In SEEC to agree to be bound pursuant to this letter.
Date: 12/3/ , 1993.
----------
/s/ ▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇▇
-------------------- ----------------------
Signature Signature
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
-------------------- ----------------------
Print Name Print Name
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------- ----------------------
Signature Signature
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------- ----------------------
Print Name Print Name
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ADDENDUM No. 1
to
INTERNATIONAL SOFTWARE MARKETING & LICENSE AGREEMENT
By and Between
SEEC, INC. - AND - VIASOFT, INC.
Dated 29 November, 1993
This Addendum to the International Software Marketing & License
Agreement (the "Addendum") is made as of this 7th day of November, 1995 by and
between SEEC, Inc., ("SEEC") a corporation organized and existing under the
laws of Pennsylvania and VIASOFT, Inc., a Delaware corporation ("VIASOFT").
This Addendum modifies and amends the International Software Marketing &
License Agreement between SEEC and VIASOFT dated 29 November, 1993 (the
"License Agreement"). Capitalized terms used herein shall have the same
meanings defined in the International Software Marketing & License Agreement.
WHEREAS, SEEC has developed a product that may be sold or licensed in
conjunction with COBOL Analyst and which will require access to the SEEC
Application Dictionary, and,
WHEREAS, SEEC has named the product "Inventory/Analysis" and has configured the
software to be an add-on to COBOL Analyst, and
WHEREAS, SEEC and VIASOFT desire that the product be included for purposes of
this existing License Agreement,
NOW, THEREFORE, the parties agree that:
(1) As defined in Section 1. Definitions., for the purposes of the Agreement,
and the respective applicable provisions contained therein, Inventory/Analysis
will be considered an "Add-on", "Licensed Program" and a "Private label
Product".
(2) Exhibit A is hereby modified to include Inventory/Analysis as an "Add-on"
product.
(3) The rights and license granted to VIASOFT pursuant to 2(a) (the "Rights")
shall be non-exclusive for Inventory/Analysis. No additional Advances shall be
due SEEC from VIASOFT. Earned VIASOFT Royalties for Inventory/Analysis shall be
credited against all Advances previously paid until the amount of the Advances
has been fully earned by SEEC
(4) The initial Exclusivity Period (Section 2. Appointment, Subsection (b)(1))
has expired. As a result, Section 2., Subsections (b)(1) - (5); and subsection
(c)(1) are no longer applicable.
102
(5) The following shall be added to Section 4. VIASOFT Royalties and Taxes,
Subsection (a) (iii):
"(6) MINIMUM ROYALTIES FOR AN UNLIMITED USE, SINGLE-SERVER
SUBLICENSE OF INVENTORY/ANALYSIS WILL BE CALCULATED AS FOLLOWS:
INVENTORY /ANALYSIS SALES BY VIASOFT
U.S. DOMESTIC PUBLISHED LIST PRICE* MINIMUM ROYALTY
$7,500 $1,200
SINGLE-SERVER SUBLICENSE OF INVENTORY/ANALYSIS BY VIASOFT'S
SUB-DISTRIBUTORS:
U.S. DOMESTIC PUBLISHED LIST PRICE* MINIMUM ROYALTY
$7,500 $675
* PRICES MAY BE DISCOUNTED, BUT MINIMUM ROYALTY SHALL NOT."
(6) VIASOFT will provide to SEEC the error detection services vis a vis the
COBOL Parser Validation Suite Services described in Section 5. Product Rollout:
Market Introduction, Subsection (d); furthermore, Inventory/Analysis does use a
COBOL parser pursuant to Section 8. VIASOFT COBOL Parser Validation Suite
Services. Subsection (a); therefore the five percent (5%) SEEC Royalty
mentioned in said Section applies.
(7) Delete Section 5. Product Rollout; Market Introduction, Subsection (j),
in its entirety.
Addendum Effective Nov 7, 1995
SEEC, Inc. VIASOFT, Inc.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇ ▇▇▇▇
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Its: President & CEO Its: CEO
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103
AMENDMENT TO
INTERNATIONAL SOFTWARE MARKETING AND LICENSING AGREEMENT
This Amendment amends and modifies, as set forth herein but not
otherwise, that certain International Software Marketing and License Agreement
dated as of November 29, 1993, by and between SEEC, Inc. ("SEEC"), and VIASOFT,
Inc. ("VIASOFT"), as amended (the "Agreement"). Capitalized terms used herein
shall have the same meanings herein as are expressly assigned to such terms in
the Agreement, unless the context requires otherwise.
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, SEEC and VIASOFT hereby agree as follows:
1. Section 1(f), defining "End User", is hereby amended to read
in its entirety as follows:
"End User" shall mean any user who has the right to use any Licensed
Program for its own internal business use, or with respect to
consultants, for their own use in providing consulting services to
their customers, and not for any other use, including, without
limitation, remarketing, resale, relicensing or other redistribution,
either alone or as a component of any other product.
2. The amendment set forth in paragraph 1 above is the only
amendment of the Agreement set forth herein.
This Amendment is effective as of Nov. 7, 1994.
SEEC, INC. VIASOFT, INC.
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇ By /s/ ▇▇ ▇▇▇▇
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Its President Its Cheif Financial Officer
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