DATA GENERAL CORPORATION
MASTER SUPPLIER AGREEMENT
EFFECTIVE DATE: March 3, 1997
Compu-XXXX, Inc. ("SUPPLIER"), a Delaware corporation with a principal business
office at 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX, 00000, and Data General Corporation
("DGC"), a Delaware corporation with a principal business office at 0000
Xxxxxxxx Xxxxx, Xxxxxxxx, XX 00000, enter into this Master Supplier Agreement
("MSA") as of the EFFECTIVE DATE stated above.
BUSINESS BACKGROUND AND OBJECTIVES
SUPPLIER and DGC believe there are opportunities where it will be
mutually beneficial for DGC to offer its potential customers certain items
and/or services available from SUPPLIER.
SUPPLIER and DGC have decided to use this MSA to establish the general
terms and conditions that govern their relationship.
SUPPLIER and DGC have decided to use separately executed attachments to
specify the items and/or services (including the pricing and other related
provisions) being made available by SUPPLIER to DGC for use in connection with
the DGC customer identified on the attachment.
Accordingly, SUPPLIER and DGC agree as follows:
A G R E E M E N T
1. DEFINITIONS
A. "CONSULTING SERVICES" - means those services, if any,
identified as such in the applicable PROJECT ATTACHMENT.
B. "CUSTOMER" - means the company or other entity identified as
such in the applicable PROJECT ATTACHMENT.
C. "CUSTOMER CONTRACT" - means the contract between DGC and a
specific DGC customer that relates to the provisions set
forth in the applicable PROJECT ATTACHMENT.
D. "PROJECT ATTACHMENT" - means each document, identified as
such and executed by SUPPLIER and DGC, which incorporates
this MSA by reference and contains the description, pricing
and other specific terms and conditions applicable to items
and/or services to be provided by SUPPLIER for a specific
project.
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E. "PROJECT MANAGER" - means the individual, if any, identified
as such for each party in a PROJECT ATTACHMENT, that serves
as the primary point of contact with regard to the
activities described in the PROJECT ATTACHMENT. Either party
may replace its PROJECT MANAGER upon written notice to the
other party.
F. "LICENSED PROGRAM" - means, for each item, if any,
identified as such in the applicable PROJECT ATTACHMENT, i)
the latest release, available as of the effective date of
such PROJECT ATTACHMENT, of the machine-readable object code
and all related documentation normally supplied therewith,
and ii) all changes thereto and subsequent releases thereof
which SUPPLIER is obligated to provide under such PROJECT
ATTACHMENT.
G. "SUPPORT SERVICES" - means those services, if any,
identified as such in the applicable PROJECT ATTACHMENT.
H. "SOURCE CODE" - means i) all or any identifiable portion of
the source materials, in human or machine-readable form,
from which the related object code is compiled or assembled,
which source materials include, but are not limited to,
annotated listings, flow charts, conversion tools,
supporting documentation, and all other aids and information
needed for support or modification thereof, and ii) the
documentation for such object code in a camera-ready, hard
copy master and mutually acceptable electronic format.
2. SCOPE, ORDERS AND PAYMENT
A. General - This MSA sets forth the general provisions under
which SUPPLIER shall made available to DGC the items and/or
services described in the applicable PROJECT ATTACHMENT, to
enable DGC to bid to, and in the event of award, perform for
CUSTOMER. In case of a conflict between a provision(s) of
the MSA and that of a specific PROJECT ATTACHMENT, the
latter shall control with regard to such PROJECT ATTACHMENT.
B. List of Exhibits - The following lists the Exhibits that are
incorporated into and made a part of this MSA:
1) Exhibit 1 - Mutual Nondisclosure Provisions
2) Exhibit 2 - CONSULTING SERVICES Provisions
3) Exhibit 3 - Licensing Provisions
4) Exhibit 4 - LICENSED PROGRAM Support Provisions
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C. Implementation of Purchase Orders - DGC may obtain the items
and/or services listed in a PROJECT ATTACHMENT by sending
SUPPLIER a purchase order referencing the PROJECT
ATTACHMENT. Each purchase order shall be governed solely by
the terms and conditions of the applicable PROJECT
ATTACHMENT. As long as DGC is in material compliance with
such PROJECT ATTACHMENT, SUPPLIER shall not reject any
related purchase order related to such PROJECT ATTACHMENT.
D. Fees, Invoices and Payment
1) The fees for the various products and/or services
being provided by SUPPLIER to DGC under a PROJECT
ATTACHMENT are the sole and exclusive compensation
due SUPPLIER from DGC with regard to such PROJECT
ATTACHMENT. In no event shall such fees be less
favorable than those offered or quoted by SUPPLIER,
for similar quantities under similar terms and
conditions, to the most favored of SUPPLIER's other
customers competing with DGC on the same CUSTOMER
project.
2) SUPPLIER shall not send an invoice to DGC prior to
SUPPLIER's shipment of the applicable products or
fulfillment of all, or the applicable portion, as
specified in the PROJECT ATTACHMENT of the services.
Each invoice shall reference the applicable PROJECT
ATTACHMENT and DGC purchase order number and shall be
sent to the address on the applicable PROJECT
ATTACHMENT.
3) DGC shall send payment to SUPPLIER for all correct
invoices for products and/or services listed on the
applicable PROJECT ATTACHMENT within thirty (30) to
forty-five (45) calendar days after DGC's receipt of
such invoice. In case of a bona fide dispute, DGC
shall notify SUPPLIER as soon as is reasonably
possible.
E. Taxes - In addition to the fees for items and/or services in
the applicable PROJECT ATTACHMENT, DGC is responsible for
all related taxes, exclusive of those based on SUPPLIER's
net income or those from which DGC is exempt, as evidenced
by DGC supplying SUPPLIER with a valid tax exemption number.
F. Expenses - Except as agreed in the applicable PROJECT
ATTACHMENT, neither party shall seek reimbursement from the
other for expenses or costs incurred in performing. For all
travel related expenses, other than those covered by a fixed
price in the applicable PROJECT ATTACHMENT, SUPPLIER shall:
1) obtain the written approval of DGC before incurring any
travel expenses; and
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2) at its option, attempt to book travel through DGC's
Corporate Travel Services at 0-000-000-0000; and
3) submit to DGC a report for DGC approved travel within
thirty (30) calendar days after completion of the trip,
and provide a pre-printed receipt, with appropriate
descriptive information, for any single expenditure
over twenty-five dollars ($25.00); and
4) be reimbursed for approved travel only in accordance
with the same expense reimbursement policies as apply
to DGC's own employees, a copy of which shall be
provided upon SUPPLIER's request.
G. PROJECT MANAGER Responsibilities - The PROJECT MANAGERS,
through their mutual written consent, shall have authority
and be responsible for the following: i) proposing and
developing any modifications to the provisions of the
applicable PROJECT ATTACHMENT, and, subject to the written
mutual approval of an authorized signatory of each party,
make mutually acceptable changes to the obligations of the
PROJECT ATTACHMENT, provided such changes clearly indicate
any changes to the current payment stream and any impact on
future deliveries; ii) submitting and receiving any items
and documents required to be delivered; iii) maintaining,
for record keeping purposes, a log summarizing all material
communications and deliveries between the PROJECT MANAGERS;
iv) implementing appropriate practices and procedures to
address the security and confidentiality of items delivered
and information exchanged; and v) such other
responsibilities as the parties shall mutually agree in
writing. Unless specifically identified as such, the PROJECT
MANAGERS are not authorized signatories for their respective
companies.
3. TERM AND TERMINATION
A. Duration - This MSA commences on the EFFECTIVE DATE and shall
govern each PROJECT ATTACHMENT. The duration of each PROJECT
ATTACHMENT shall be as specified therein. Unless identified as a
"calendar day", the term "day(s)" refers to a business day(s),
i.e. Monday through Friday, excluding legal holidays.
B. Termination of MSA - Either party may terminate this MSA, with or
without cause, by sending the other written notice thereof. Such
termination shall take effect thirty (30) calendar days after
receipt thereof (the "MSA TERMINATION DATE"). However, such
termination shall not affect any PROJECT ATTACHMENT that became
effective prior to the MSA TERMINATION DATE.
C. Cancellation of PROJECT ATTACHMENT - Each party shall notify the
other in writing in case of the other's alleged violation of a
material provision of the
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applicable PROJECT ATTACHMENT. The recipient of such notice shall
have, except to the extent specifically provided otherwise in the
applicable PROJECT ATTACHMENT, thirty (30) calendar days from the
date of receipt of such notice to effect a cure (the "CURE
PERIOD"). If the recipient of such notice fails to effect such
cure within the CURE PERIOD, then the sender of such notice shall
have the option of sending a written notice of cancellation,
which notice shall take effect upon receipt, and such sender
shall thereafter have such remedies as are provided at law, in
this MSA and the applicable PROJECT ATTACHMENT.
D. Survivorship - Any provision of this MSA and a PROJECT ATTACHMENT
that by its very nature or context is intended to survive any
termination, cancellation or expiration thereof, including but
not limited to provisions relating to disclosure of certain
information, the payment of outstanding fees and taxes, and
indemnities, shall so survive.
E. General Access to SOURCE CODE - The parties recognize that DGC's
reputation and customer goodwill are involved in DGC's marketing
of SUPPLIER's products and services and that DGC has a legitimate
interest in the protection thereof. In lieu of establishing an
escrow of the SOURCE CODE, SUPPLIER grants to DGC on a
nonexclusive, nontransferable, and fee-free basis, for the entire
period that SUPPLIER has obligated itself to provide products
and/or related support DGC in connection with a specific
CUSTOMER, the present right and license to use such SOURCE CODE
to the extent reasonably necessary for DGC to i) use and market
such product in accordance with the applicable PROJECT
ATTACHMENT, and ii) provide support and maintenance in
substantially the same manner as required of SUPPLIER under the
applicable PROJECT ATTACHMENT. However, SUPPLIER and/or
SUPPLIER'S successor in interest shall have the obligation to
provide, and DGC shall be entitled to receive and utilize such
SOURCE CODE within the scope of such license, only in the event
that DGC cancels the applicable PROJECT ATTACHMENT due to
SUPPLIER's failure to comply with a material provision thereof.
Promptly after such cancellation, SUPPLIER and/or SUPPLIER's
successor in interest, shall send to DGC a copy of such SOURCE
CODE and shall not interfere with DGC's exercise of DGC's rights
as set forth herein. After such cancellation, DGC shall have no
further obligation to pay any other charges that are in any way
related thereto. In addition, SUPPLIER shall reasonably cooperate
with DGC and negotiate in good faith in the event that DGC
requests authorization to place SOURCE CODE in escrow in order to
fulfill a potential CUSTOMER's requirement for such action.
4. WARRANTIES
A. Each party warrants to the other that it has i) all rights
necessary to fulfill its obligations under this MSA and each
PROJECT ATTACHMENT, and ii) no
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knowledge of any adverse claims against such rights.
B. EXCEPT AS EXPRESSLY STATED IN THIS MSA OR THE APPLICABLE
PROJECT ATTACHMENT, SUPPLIER DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE,
WITH RESPECT TO ITEMS AND/OR SERVICES SUPPLIED HEREUNDER,
INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR PURPOSE.
5. INDEMNITY
A. Proprietary Interests - SUPPLIER shall, at its expense, defend
any suit against DGC and/or CUSTOMER to the extent based on a
claim that any item and/or service provided by SUPPLIER infringes
a patent, trademark or copyright, or misappropriates a trade
secret, and shall notwithstanding any limitations on or
exclusions from liability for damages set forth in this MSA, pay
all damages provided in a settlement made by SUPPLIER and/or
awarded by a court of final appeal attributable to such claim,
provided that the entity seeking indemnification provides
SUPPLIER with i) prompt written notice of such claim, ii) sole
control over the related defense and/or settlement (although
retaining the right to be represented by its own counsel if it
elects, at its own expense), and iii) reasonable cooperation and
assistance with regard to such claim. In addition, should such
item and/or service become, or in SUPPLIER's opinion be likely to
become, the subject of such a claim, SUPPLIER shall, at its
expense, use good faith and reasonable efforts to a) procure the
right for DGC and/or CUSTOMER to continue use thereof, or b)
replace or modify such so that it no longer so infringes or so
misappropriates, but only if such replacement or modification
does not materially and adversely affect the specifications or
use, or c) if neither a) nor b) above are accomplished within a
reasonable period of time, SUPPLIER shall accept return of such
and grant DGC a full refund of the fee paid by DGC to SUPPLIER,
less straight line depreciation, on a pro-rata basis, using a
seven (7) year useful life. The above indemnity shall not apply
to any such claim based on a modification of an item or service
by other than SUPPLIER or the combination, operation or use of
such item or service with items not furnished by SUPPLIER, if
such claim would have been avoided in the absence of such
modification or combination, operation or use with items not
furnished by SUPPLIER. This subsection states SUPPLIER's entire
obligation for claims of infringement and/or misappropriation
relating to items and/or services provided by SUPPLIER under this
MSA and/or a PROJECT ATTACHMENT.
B. Insurance - SUPPLIER shall maintain throughout the term of the
applicable PROJECT ATTACHMENT the following minimum coverages,
and, upon request of DGC, promptly provide evidence thereof:
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1) Workers Compensation - As per the Statutory Requirements for
the state in which services are performed,
2) Employer's Liability - $100,000/occurrence,
3) Comprehensive General Liability - $2,000,000/ occurrence.
6. LIMITATION OF LIABILITY
EXCEPT TO THE EXTENT STATED OTHERWISE IN THE SECTION ENTITLED
"INDEMNITY", NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER,
INCLUDING BUT NOT LIMITED TO LOST PROFITS AND DAMAGES RESULTING FROM
LOSS OF USE OR LOST DATA, ARISING FROM ANY CAUSE OR CONNECTED IN ANY
WAY WITH THIS MSA AND/OR THE APPLICABLE PROJECT ATTACHMENT, EVEN IF THE
POSSIBILITY THEREOF IS KNOWN OR SHOULD HAVE BEEN KNOWN. ANY ACTION,
REGARDLESS OF FORM, ARISING OUT OF OR INCIDENTAL TO THE TRANSACTIONS
UNDER THIS MSA OR THE APPLICABLE PROJECT ATTACHMENT, MUST BE BROUGHT
WITHIN ONE (1) YEAR AFTER THE CASE OF ACTION ACCRUES.
7. MISCELLANEOUS
A. This MSA, including each PROJECT ATTACHMENT, shall be construed
in accordance with and governed by the laws of the Commonwealth
of Massachusetts, excluding its conflict of law rules.
B. Neither party shall assign any right or interest under this MSA
and/or a PROJECT ATTACHMENT (excepting moneys due or to become
due) nor delegate any work or other obligation to be performed
hereunder to any entity other than i) its corporate parent, ii) a
division or wholly or majority owned subsidiary of the party or
its corporate parent, iii) the purchaser of all or substantially
all of such party's assets, or iv) a third party subcontractor
that is fully qualified to perform the applicable task(s) and has
executed a nondisclosure contract that is no less restrictive
than that attached to this MSA, without the prior written consent
of an authorized representative of the other, which consent shall
not be unreasonably withheld.
C. Failure to insist in any instance upon strict performance by the
other of any provision of this MSA and/or PROJECT ATTACHMENT
shall not be construed or deemed to be a permanent waiver of such
or any other provision.
D. With the exception of quotes, purchase orders, acknowledgments,
invoices and other
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usual and routine communications, all other notices or writings
required or permitted under this MSA and/or a PROJECT ATTACHMENT,
including but not limited to notices of default or breach, shall
be signed by an authorized representative of the sender, sent to
the respective individuals identified on the applicable PROJECT
ATTACHMENT and as set forth below (which may be changed by
written notice to the other), and shall be deemed to have been
received i) when hand delivered to such individuals by a
representative of the sender, or ii) three (3) days after having
been sent postage prepaid, by registered or certified first class
mail, return receipt requested, or iii) when sent by electronic
transmission, with written confirmation by the method of
transmission, or iv) one (1) day after deposit with an overnight
carrier, with written verification of delivery.
For DGC For SUPPLIER
Data General Corporation To the address stated above,
0000 Xxxxxxxx Xxxxx Xxxx.: Xxxx Xxxxxxxx
Xxxxxxxx, XX 00000
Attn.: Vice President - Systems Integration
cc: Office of the General Counsel
E. Headings used in this MSA and/or PROJECT ATTACHMENT are for
reference purposes only and are not a part thereof.
F. A party shall be excused for delays in the performance of its
obligations hereunder due to causes beyond its reasonable control
and which could not have been avoided through the exercise of
reasonable care, such as acts of God, acts or omissions of civil
or military authorities, fires, floods, epidemics, quarantine
restrictions, war, riots, strikes, or the unavailability of
necessary labor, materials, or manufacturing facilities (the
"Force Majeure"). The party whose performance is being adversely
affected shall promptly notify the other of the nature of the
Force Majeure and the obligations which will be adversely
affected thereby. Such party shall thereafter make all reasonable
efforts to resume performance as soon as is reasonably possible
and to mitigate the adverse effects of the Force Majeure.
However, if the Force Majeure causes a delay of ninety (90) or
more days from the original date of performance, the other party
shall have the right to terminate.
G. SUPPLIER hereby acknowledges notice of requirements for
certification of nonsegregated facilities. Unless exempt from
Executive Order 11246 concerning equal employment opportunities,
SUPPLIER shall not maintain any segregated facilities at any of
its establishments and shall complete a certification to the
effect required by the May 7, 1967 Order of the Secretary of
Labor of the United States. The following applicable Federal
Acquisition Regulations ("FAR") are incorporated herein by
reference, and, unless SUPPLIER is exempt from the application
thereof, shall apply to SUPPLIER's performance under this MSA:
Utilization of Small
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Business Concerns and Small Disadvantaged Business Concerns
(52.219-08), Utilization of Women-Owned Small Businesses
(52.219-13) and, if orders under this MSA exceed $500,000,
Subcontracting Plan (52.219-09). SUPPLIER shall, within thirty
(30) calendar days of request of DGC, furnish DGC with
appropriate certifications of compliance therewith.
H. Each party may publicly disclose the existence of the MSA and,
after the mutual execution of the applicable PROJECT ATTACHMENT,
the fact that the party is involved in a specific project, but
each party shall use the same standard of care as it normally
uses to protect its own sensitive information from disclosure, to
protect from disclosure to any third party, for a period of five
(5) years after the commencement of the applicable PROJECT
ATTACHMENT, the specific details, including but not limited to
pricing and payment terms. The parties acknowledge that from time
to time, DGC will provide SUPPLIER with the identity of a
potential CUSTOMER and a description of a specific project with
such account (collectively called "ACCOUNT INFORMATION"). It is
agreed that ACCOUNT INFORMATION is of significant value and shall
be treated as RESTRICTED INFORMATION, as defined in the Mutual
Nondisclosure Provisions in Exhibit 1, even if not specifically
identified as such by DGC and even if not reduced to writing.
I. The parties are independent contractors and nothing herein shall
be construed as forming a joint venture between them or as
constituting either party as agent for the other.
J. If any provision of this MSA and/or a PROJECT ATTACHMENT is held
to be unenforceable for any reason, then such shall be deemed
adjusted to conform to the applicable requirements, to the extent
possible, and the adjusted provision, if any, shall have the same
effect as if originally included herein. In any event, the other
provisions shall remain in effect.
K. DGC and SUPPLIER agree that each company's employees are highly
important to the success of each company, and that each company
reasonably expects to retain its employees free from the other's
interference. During the period that begins when a party has its
first contact with an employee of the other concerning this MSA
or any related project, and expires one (1) year after such
party's last contact with such employee concerning this MSA or
any related project, such party shall not, without the express
written permission of the other, solicit and hire for employment,
either as an employee or as or through an independent contractor,
an employee the other. For purposes of this subsection K.,
prohibited solicitation means the specific targeting, recruitment
and hiring of the employee, as opposed to a general recruitment
effort that is not specifically directed at such an employee,
such as an advertisement in a newspaper, trade publication or
similar electronic forum. DGC and SUPPLIER agree that any breach
of this provision would result in injury to the
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nonbreaching party that would be difficult or impossible to
estimate. Therefore, in the event of such a breach, and as the
sole and exclusive remedy therefor, the breaching party shall
promptly pay to the other a sum equal to six (6) times the gross
monthly salary most recently being paid by the nonbreaching party
to the affected employee, such sum to be paid as liquidated
damages and not as a penalty. For purposes of this paragraph
only, the terms "DGC" and "SUPPLIER", respectively, include such
party, together with all other entities controlling, controlled
by or under common control with such party.
L. This MSA, including its attached Exhibits, and the applicable
PROJECT ATTACHMENT, are the complete and exclusive statement of
the contract between the parties with regard to the subject
matter set forth therein and supersede all prior oral
communications, written communications, proposals, agreements,
representations, statements, negotiations and undertakings
between the parties with respect to such subject matter. Any
amendments or alterations hereof must be made in writing and
executed by an authorized representative of each party. This MSA
and/or any PROJECT ATTACHMENT or any amendments or modifications
thereto may be transmitted by facsimile machine between the
parties. A faxed signature shall be deemed to be an original
signature. A faxed MSA or PROJECT ATTACHMENT, containing an
original and/or faxed signature of both parties shall be binding
on both parties.
ACCORDINGLY, the respective representative of each party, being duly authorized,
has caused this MSA to be executed and to become effective as of the EFFECTIVE
DATE.
Compu-XXXX, Inc. Data General Corporation
("SUPPLIER") ("DGC")
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxx
Print Name: Xxxx Xxxxxxxx Print Name: Xxxxx Xxxxxxx
Title: E.V.P. Sales & Marketing Title: Director Professional Services
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Exhibit 1
MUTUAL NONDISCLOSURE PROVISIONS
This Exhibit 1 is hereby attached to and incorporated into the MSA between DGC
and SUPPLIER and sets forth the nondisclosure provisions applicable to their
relationship.
BUSINESS BACKGROUND AND OBJECTIVES
Based on SUPPLIER's and DGC's common understanding that:
In order to advance their respective interests, SUPPLIER and DGC will
engage in various discussions; and
During such discussions, each party is willing to disclose certain
information provided the recipient agrees to certain restrictions on the use or
further disclosure of such information;
Accordingly, SUPPLIER and DGC agree as follows:
A G R E E M E N T
1. SCOPE - This Exhibit governs all "RESTRICTED INFORMATION", as defined
below, exchanged between the parties in the pursuit and/or performance
of a specific project with a prospective CUSTOMER.
2. RESTRICTED INFORMATION - Except as set forth in the Section entitled
"EXCLUSIONS" below, "RESTRICTED INFORMATION" means:
A. the identity of the prospective CUSTOMER and the description of
the specific project therewith, whether or not reduced to
writing; and
B. all other information exchanged within the SCOPE and prior to
expiration of the applicable PROJECT ATTACHMENT, if any, that:
1) is in written, recorded or other tangible form and labeled,
at the time of initial disclosure, as "Proprietary",
"Confidential" or other similar legend, or
2) is in oral form and identified by either of the parties or
DGC's customer as "Proprietary" or "Confidential" at the
time of initial disclosure, and subsequently reduced to
written or recorded form, marked as described in B. 1)
above, and sent to the recipient within seven (7) calendar
days after initial disclosure; and
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C. any information of either party or the CUSTOMER which is viewed or
perceived in the performance of obligations under the applicable
PROJECT ATTACHMENT and which a business person would reasonably
believe to be of a sensitive or confidential nature; and
D. any software (including related documentation) provided by DGC or
CUSTOMER to SUPPLIER for the purpose of assisting SUPPLIER in the
performance of its obligations under the applicable PROJECT
ATTACHMENT.
3. EXCLUSIONS - Unless specifically agreed otherwise in the applicable PROJECT
ATTACHMENT, RESTRICTED INFORMATION DOES NOT MEAN i) any software (including
the related documentation) which SUPPLIER customarily licenses in the
ordinary course of its business (which software, the parties agree shall be
provided solely pursuant to separate licensing provisions), ii) any
information exchanged which the recipient can tangibly demonstrate was in
its possession (or of which it had knowledge), free of restrictions on
disclosure or use, or in the public domain, prior to receipt from the other
party, or iii) any information exchanged with the reasonable knowledge or
expectation that such will be included in communications with the
prospective CUSTOMER.
4. DURATION OF NONDISCLOSURE PERIOD
A. Except as provided in subsection B. below, the NONDISCLOSURE PERIOD
for RESTRICTED INFORMATION commences on the date of initial disclosure
and, unless sooner terminated as stated below, expires five (5) years
later.
B. The NONDISCLOSURE PERIOD for RESTRICTED INFORMATION is deemed to
terminate as of the date that such is first i) publicly disclosed by
the disclosing party, ii) rightfully received by the recipient from a
third party without restrictions on disclosure or use, iii)
independently developed by the recipient, as evidenced by written
records prepared at the time of such development, iv) approved for
unrestricted disclosure by the disclosing party, v) available by
inspection of items or services marketed without restrictions or
offered for sale or lease in the ordinary course of business by either
party or others, or vi) disclosed pursuant to applicable law, court
order or regulation, provided that the disclosing party is given
notice thereof and an opportunity to defend, limit or protect such
disclosure.
C. Either party shall have the right to correct a failure to identify
RESTRICTED INFORMATION by sending written notice and complying with
the applicable provisions of this Exhibit promptly after discovery of
such failure. The NONDISCLOSURE PERIOD for such RESTRICTED INFORMATION
shall be deemed to commence upon receipt of such notice by recipient,
but shall expire on the same date as if the RESTRICTED INFORMATION had
been correctly identified when first disclosed.
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5. RESTRICTIONS ON DISCLOSURE AND USE - During the NONDISCLOSURE PERIOD, each
party shall use the same degree of care with regard to the protection of
the other's RESTRICTED INFORMATION as it uses with regard to its own
information of a similar nature and sensitivity, and no less than
reasonable care, to i) limit use and disclosure thereof to only those of
its personnel, or those of its subcontractors and their personnel, that
have executed a nondisclosure agreement containing provisions substantially
equivalent to those set forth herein, that require access to perform
functions related to the SCOPE, ii) not make any other disclosure or use
thereof, and iii) return all tangible RESTRICTED INFORMATION to the
disclosing party within ten (10) days after receipt of a written request
therefor.
6. MARKINGS AND LEGENDS - Recipient's obligations concerning use and
disclosure of RESTRICTED INFORMATION are governed solely by the terms and
conditions of this Exhibit and any applicable patent or copyright law(s).
Any restrictive legends placed on RESTRICTED INFORMATION shall not impose
any obligations or restrictions upon the recipient except to the extent set
forth herein. Nothing contained herein shall be construed as granting or
conferring upon the recipient any license under patents or copyrights of
the disclosing party, and no such license or other rights shall arise from
any acts, statements or dealings resulting from or related to the
performance of the obligations hereunder.
7. GENERAL
A. Nothing contained herein shall be construed as establishing a
confidential relationship between the parties.
B. Each party shall comply with all of the provisions of the Export
Administration Regulations of the United States Department of
Commerce, as they currently exist and as they may from time to time be
amended.
C. SUPPLIER agrees to execute such nondisclosure contracts as may be
reasonably required by the third party owner or operator of the
premises where SUPPLIER will perform any services under any applicable
PROJECT ATTACHMENT, and to require any of SUPPLIER's subcontractors to
do the same.
D. Each party warrants that it has the right to disclose its RESTRICTED
INFORMATION to the other. RESTRICTED INFORMATION IS PROVIDED i)
WITHOUT ANY OTHER WARRANTIES, AND, ii) EXCEPT AS SET FORTH HEREIN, ON
AN "AS IS" BASIS.
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Exhibit 2
CONSULTING SERVICES PROVISIONS
This Exhibit 2 is hereby attached to and incorporated into the MSA between DGC
and SUPPLIER and sets forth the provisions applicable to each PROJECT ATTACHMENT
that provides for CONSULTING SERVICES.
BUSINESS BACKGROUND AND OBJECTIVES
In order for SUPPLIER to fulfill its obligations with regard to the CONSULTING
SERVICES described on the applicable PROJECT ATTACHMENT, DGC, and SUPPLIER
recognize that SUPPLIER may need to:
Use information provided by DGC and/or CUSTOMER, and/or
Use information already in SUPPLIER's possession, and/or
Develop new information.
Accordingly, SUPPLIER and DGC agree that the following governs their respective
rights in the information described above:
A G R E E M E N T
1. DEFINITIONS
A. "DGC/CUSTOMER INFORMATION" - means i) any software, data,
documentation and/or other information provided by DGC and/or CUSTOMER
to SUPPLIER to assist SUPPLIER in fulfilling its CONSULTING SERVICES
obligations in the applicable PROJECT ATTACHMENT, and ii) any
DERIVATIVE WORK prepared therefore.
B. "DERIVATIVE WORK" - means any enhanced or modified version of all or
any portion of SUPPLIER INFORMATION or DGC/CUSTOMER INFORMATION which
if prepared or used without the authorization of the copyright holder
of the underlying work would constitute a copyright infringement or
misappropriation of a trade secret.
C. "NEW WORK" - means only that software, documentation, data and/or
other information first developed or prepared by or for SUPPLIER and
delivered by SUPPLIER in fulfillment of its CONSULTING SERVICES
obligations in the applicable PROJECT ATTACHMENT, but does not include
SUPPLIER
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14
INFORMATION or DGC/CUSTOMER INFORMATION.
D. "SUPPLIER INFORMATION" - means any software, documentation, data
and/or other information (including any DERIVATIVE WORK prepared
therefrom by SUPPLIER) which, i) as of the effective date of the
applicable PROJECT ATTACHMENT, is either owned by SUPPLIER or a
third party other than DGC or CUSTOMER, and ii) is delivered by
SUPPLIER in fulfillment of its CONSULTING SERVICES obligations in
the applicable PROJECT ATTACHMENT, but does not include any
software or documentation which the parties identify on the
applicable PROJECT ATTACHMENT as being licensed to DGC under
provisions other than those set forth in this specific Exhibit.
E. "FIXED DELIVERABLE BASIS" - refers to those CONSULTING SERVICES,
usually consisting of a defined task(s) and/or deliverable(s),
for which SUPPLIER, in exchange for its successful completion
thereof, is to be paid a firm, fixed amount, exclusive of travel
and expense reimbursement, even if the actual amount of time or
effort expended by SUPPLIER differs from the estimate that served
as the basis for establishing the fixed amount.
F. "LABOR RATE BASIS" - refers to those CONSULTING SERVICES, usually
described as providing expertise and/or assistance for a
particular effort, for which SUPPLIER, in exchange for its good
faith efforts, is to be paid (subject to any minimum or maximum
established in the PROJECT ATTACHMENT) an amount, exclusive of
travel and expense reimbursement, based on the actual number of
hours of labor (or other specified unit of measure) multiplied by
a rate of payment per hour (or other specified unit of measure).
2. REPRESENTATIONS
A. By DGC - In the event a claim of infringement or misappropriation
of intellectual property rights is made against SUPPLIER with
regard to DGC/CUSTOMER INFORMATION, DGC will defend and indemnify
SUPPLIER in the same manner and to the same extent that SUPPLIER
is required to indemnify DGC or CUSTOMER under the Section
entitled "INDEMNITY" in the MSA. DGC shall treat and protect
SUPPLIER INFORMATION with the same degree of care assumed by DGC
with regard to its own information of a similar nature and
importance, and no less than reasonable care.
B. By SUPPLIER - SUPPLIER represents to DGC that all SUPPLIER
INFORMATION and NEW WORK is either the original work of SUPPLIER
or that SUPPLIER has all rights therein that are necessary to
fulfill its obligations under the applicable PROJECT ATTACHMENT.
In the event a claim of infringement or misappropriation of
intellectual property rights is made against DGC and/or
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CUSTOMER with regard to SUPPLIER INFORMATION and/or NEW WORK,
SUPPLIER will indemnify DGC and/or CUSTOMER in the same manner
and to the same extent that SUPPLIER is required to indemnify DGC
and/or CUSTOMER in the same manner and to the same extent that
SUPPLIER is required to indemnify DGC and/or CUSTOMER under the
Section entitled "INDEMNITY" in the MSA.
3. ALLOCATION OF RIGHTS
A. Rights in SUPPLIER INFORMATION - Unless otherwise agreed in the
applicable PROJECT ATTACHMENT:
1) Nothing in this Exhibit or the MSA shall serve to transfer
SUPPLIER's ownership or manufacturing rights in, or limit its
right to use or market, SUPPLIER INFORMATION (including all
designs, engineering details and other data pertaining thereto),
and
2) SUPPLIER hereby grants DGC an irrevocable (except for material
breach by DGC of SUPPLIER's intellectual property or proprietary
rights in SUPPLIER INFORMATION), world-wide, nonexclusive right,
at no charge in addition to the CONSULTING SERVICES Fee set forth
in the applicable PROJECT ATTACHMENT, to generally use SUPPLIER
INFORMATION solely in connection with DGC's performance of its
obligations to the CUSTOMER and to license and/or provide
SUPPLIER INFORMATION solely to such CUSTOMER under the same terms
and conditions as used by DGC to provide such CUSTOMER with DGC's
own information of a similar nature.
B. Rights in DGC/CUSTOMER INFORMATION - Unless otherwise agreed in
the applicable PROJECT ATTACHMENT, nothing in this Exhibit or the
MSA shall serve to transfer DGC's or CUSTOMER's ownership or
manufacturing rights in, or limit its right to use or market,
DGC/CUSTOMER INFORMATION (including all designs, engineering
details and other data pertaining thereto). SUPPLIER is hereby
granted the limited, nontransferable right to use DGC/CUSTOMER
INFORMATION only for purposes directly related to fulfillment of
SUPPLIER's obligations under the applicable PROJECT ATTACHMENT.
No other rights are granted to SUPPLIER with regard thereto, and
SUPPLIER shall make no other use thereof. SUPPLIER shall treat
and protect DGC/CUSTOMER INFORMATION with the same degree of care
as used by SUPPLIER with regard to its own information of a
similar nature and importance, and no less than reasonable care.
Unless otherwise agreed in the applicable PROJECT ATTACHMENT,
upon request, SUPPLIER shall promptly return DGC/CUSTOMER
INFORMATION to DGC and/or CUSTOMER, respectively.
B. Rights in DGC/CUSTOMER INFORMATION - Unless otherwise agreed in
the
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16
applicable PROJECT ATTACHMENT, nothing in this Exhibit or the MSA
shall serve to transfer DGC's or CUSTOMER's ownership or
manufacturing rights in, or limit its right to use or market,
DGC/CUSTOMER INFORMATION (including all designs, engineering
details and other data pertaining thereto). SUPPLIER is hereby
granted the limited, nontransferable right to use DGC/CUSTOMER
INFORMATION only for purposes directly related to fulfillment of
SUPPLIER's obligations under the applicable PROJECT ATTACHMENT.
No other rights are granted SUPPLIER with regard thereto, and
SUPPLIER shall make no other use thereof. SUPPLIER shall treat
and protect DGC/CUSTOMER INFORMATION with the same degree of care
as used by SUPPLIER with regard to its own information of a
similar nature and importance, and no less than reasonable care.
Unless otherwise agreed in the applicable PROJECT ATTACHMENT,
upon request, SUPPLIER shall promptly return DGC/CUSTOMER
INFORMATION to DGC and/or CUSTOMER, respectively.
C. Rights in NEW WORK - NEW WORK is "a work made for hire" by
SUPPLIER for DGC under the copyright laws of the United States.
SUPPLIER does not have any and has not been granted any rights
with regard to NEW WORK, and shall make no use thereof except in
fulfillment of its obligations under the applicable PROJECT
ATTACHMENT. The full and exclusive ownership of NEW YORK,
including any United States and international copyrights rights
therein, vests in DGC or DGC's designee. SUPPLIER shall treat and
protect NEW WORK with the same degree of care as used by SUPPLIER
with regard to SUPPLIER's own information of a similar nature and
importance, and no less than reasonable care. SUPPLIER shall
execute all documents and do all other things reasonably
necessary to fully vest such rights in DGC or DGC's designee.
D. Additional Rights - Ideas, concepts, know-how or techniques
developed in the performance of the applicable PROJECT ATTACHMENT
shall be the property of the party which developed them, or if
jointly developed, shall be the joint property of both parties,
each having the right to generally use the jointly developed
property without accounting to the other.
E. A copyright notice on any DGC/CUSTOMER INFORMATION, SUPPLIER
INFORMATION or NEW WORK does not by itself constitute or evidence
a publication or public disclosure.
4. CANCELLATION FOR BREACH
In the event of a cancellation for breach as set forth in the MSA at
the Section entitled "TERM AND TERMINATION", the following shall apply:
A. CONSULTING SERVICES - FIXED DELIVERABLE BASIS - If DGC cancels a
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PROJECT ATTACHMENT due to SUPPLIER's breach of a material
obligation with regard to CONSULTING SERVICES being provided on a
FIXED DELIVERABLE BASIS, then, promptly after the effective date
of the cancellation, SUPPLIER shall:
1) refund all portions of the CONSULTING SERVICES Fee and all
reimbursements for authorized expenses and/or taxes paid by
DGC prior to such effective date, and
2) provide DGC with all NEW WORK prepared in the performance of
such CONSULTING SERVICES and SUPPLIER INFORMATION needed for
the operation or use of such NEW WORK.
B. CONSULTING SERVICES - LABOR RATE BASIS - If DGC cancels a PROJECT
ATTACHMENT due to SUPPLIER's breach of a material obligation with
regard to CONSULTING SERVICES being provided on a LABOR RATE BASIS,
then, promptly after the effective date of such cancellation, the
following shall apply:
1) DGC shall be obligated to pay SUPPLIER only for that portion
of the CONSULTING SERVICES actually rendered and accepted by
DGC, and for the authorized expenses and taxes directly
related thereto actually incurred by SUPPLIER, prior to the
effective date of such cancellation, and
2) SUPPLIER shall make any claims for amounts due hereunder
within thirty (30) calendar days after the effective date of
such cancellation and shall support such claims with
documentation submitted to DGC, and
3) If DGC has made advance payments in excess of the amount
determined in accordance with subsection 1) above, SUPPLIER
shall promptly refund such excess to DGC, and
4) SUPPLIER shall provide DGC with all NEW WORK prepared by
SUPPLIER in the performance of such CONSULTING SERVICES and
any SUPPLIER INFORMATION needed for the operation or use of
such NEW WORK.
5. TERMINATION WITHOUT BREACH
The following provisions pertain to a termination of CONSULTING
SERVICES in the absence of a breach by SUPPLIER:
A. CONSULTING SERVICES - FIXED DELIVERABLE BASIS - With regard to
CONSULTING SERVICES being provided on a FIXED DELIVERABLE BASIS, if i)
the CUSTOMER terminates or cancels all or that portion of the CUSTOMER
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CONTRACT that relates to such CONSULTING SERVICES, or ii) DGC cancels
all or that portion of the CUSTOMER CONTRACT that relates to such
CONSULTING SERVICES due to CUSTOMER's breach of a material obligation
of the CUSTOMER CONTRACT, the following shall apply:
1) DGC shall have the option of terminating such CONSULTING SERVICES
by sending SUPPLIER written notice indicating the basis for
termination, which notice shall become effective upon receipt,
and
2) DGC shall be obligated to pay SUPPLIER only for that portion of
the originally agreed CONSULTING SERVICES Fee that reasonably
corresponds to the CONSULTING SERVICES actually rendered, plus
authorized expenses and taxes directly related thereto and
incurred by SUPPLIER, prior to the effective date of such
termination, and
3) the provisions of subsection C. below shall apply.
B. CONSULTING SERVICES - LABOR RATE BASIS - Either party may terminate
CONSULTING SERVICES being provided on a LABOR RATE BASIS without cause by
sending the other written notice at any time indicating a termination for
convenience. Thereafter, DGC shall be obligated to pay SUPPLIER only for
the CONSULTING SERVICES actually rendered plus authorized expenses and
taxes directly related thereto and incurred by SUPPLIER, prior to the
effective date of such cancellation, subject to the minimum and/or maximum
compensation amounts and notice periods, if any, in the applicable PROJECT
ATTACHMENT.
C. Additional Provisions - The following shall apply to any terminations made
pursuant to subsection A. or B. above:
1) SUPPLIER shall make any claims for amounts due hereunder within
thirty (30) calendar days after the effective date of such
termination and shall support such claims with documentation
submitted to DGC, and
2) If DGC has made advance payments in excess of the amount
determined in accordance with subsection A. or B. above, as
applicable, SUPPLIER shall promptly refund such excess to DGC,
and
3) SUPPLIER shall promptly provide DGC with all NEW WORK prepared up
to the date of termination in the performance of such CONSULTING
SERVICES and SUPPLIER INFORMATION needed for the operation or use
of such NEW WORK.
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Exhibit 3
Licensing Provisions
This Exhibit 3 is hereby attached to an incorporated into the MSA between DGC
and SUPPLIER and sets forth the provisions applicable to each and every PROJECT
ATTACHMENT involving DGC's procurement of LICENSED PROGRAM from SUPPLIER.
1. FEES
The fees due SUPPLIER from DGC shall be as set forth on the applicable
PROJECT ATTACHMENT.
2. GRANT OF LICENSE AND RIGHT TO USE AND REMARKET
A. Evaluation License - SUPPLIER shall use good faith to attempt to
fulfill, a request from DGC to provide to DGC, at no charge, one
(1) copy of all LICENSED PROGRAM(S) identified on the applicable
PROJECT ATTACHMENT. With regard thereto, SUPPLIER grants DGC a
nonexclusive, nontransferable right and license to use such
solely for purposes of i) demonstration to the applicable
CUSTOMER, ii) testing, supporting and evaluating to determine
conformance to the requirements of the applicable PROJECT
ATTACHMENT. DGC shall make no other use thereof.
B. Sublicensing of LICENSED PROGRAM - SUPPLIER hereby grants to DGC,
on a nonexclusive, nontransferable, irrevocable (except as
expressly provided herein) basis, the right and license to obtain
LICENSED PROGRAM(S) identified on the applicable PROJECT
ATTACHMENT from SUPPLIER for the purpose of providing such to the
applicable CUSTOMER under the terms of the break-the-seal type
license agreement packaged with the LICENSED PROGRAM, if any, or
in the absence of such break-the-seal license agreement, under
the same licensing provisions as used by DGC to license its own
programs of a similar nature to CUSTOMER.
C. Additional Authorizations - Provided DGC is in compliance with
the material provisions of the applicable PROJECT ATTACHMENT,
SUPPLIER shall not invoke, at law or in equity, any intellectual
property or proprietary right, no matter when acquired, in order
to interfere with the exercise of any right or the fulfillment of
any obligation set forth in such PROJECT ATTACHMENT, or to
collect any moneys in excess of the fees set forth in such
PROJECT ATTACHMENT.
D. General - DGC acknowledges SUPPLIER's representation that
LICENSED PROGRAM involves valuable copyrights, trade secrets and
other intellectual property and/or proprietary rights of
SUPPLIER. No title to or ownership thereof is
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20
transferred to DGC hereunder. DGC shall not be responsible for
any violation of SUPPLIER's intellectual property and/or
proprietary rights by any entity other than DGC. DGC will
promptly notify SUPPLIER if DC becomes aware of any such
violation and will provide reasonably cooperate with SUPPLIER in
the protection or enforcement of SUPPLIER's rights in LICENSED
PROGRAM. DGC shall have no obligation to commence any proceedings
with regard to such violation. DGC and SUPPLIER hereby agree that
the rights and licenses granted to DGC hereunder shall be deemed
made and effective as of the effective date of the applicable
PROJECT ATTACHMENT. SUPPLIER agrees to expeditiously execute such
documents and instruments as may be reasonably requested by DGC
for the enforcement thereof.
E. Restrictions - DGC shall not disassemble or reverse compile
LICENSED PROGRAM unless DGC has received SOURCE CODE as a result
of SUPPLIER's breach of the applicable PROJECT ATTACHMENT. DGC
shall make no use of LICENSED PROGRAM and SOURCE CODE except as
permitted hereunder and shall treat and protect such with same
degree of care as used by DGC with regard to its own materials of
a similar nature and importance, and no less than reasonable
care. DGC shall not remove or alter any copyright or other
proprietary notices affixed to or embedded in LICENSED PROGRAM
and/or SOURCE CODE supplied to DGC by SUPPLIER, and shall include
such in all copies made by DGC. DGC shall have no obligation to
determine the appropriateness of such notices.
3. PURCHASE ORDER PROVISIONS
A. Lead-time and F.O.B. Point - The purchase order submitted by DGC
shall specify a shipment date not be less than five (5) days
after the date on which SUPPLIER receives the purchase order via
mail or Fax, without the prior consent (oral or written) of
SUPPLIER. The shipment shall be send F.O.B. Destination to the
location, and via the freight method and carrier, specified on
the purchase order.
B. Early/Late Arrival - If a shipment has not arrived within five
(5) days after the specified shipment date, SUPPLIER shall, at
DGC's request, re-ship by next day air freight at no additional
charge to DGC. If SUPPLIER fails to ship within ten (10) days
after the specified shipment date, then for each day thereafter
that such shipment remains unshipped, the net price to DGC shall
be reduced by one half (1/2) percent of the applicable fee, with
a maximum reduction of fifty percent (50%). DGC may cancel any
order whose shipment is delayed more than one (1) month after its
specified shipment date.
C. Changes in Shipment Date - Shipments may be rescheduled and/or
canceled by DGC without cost or liability by providing SUPPLIER
written or oral notice thereof at least five (5) days in advance
of the specified shipment date. Such notice shall be given to
SUPPLIER's sales organization.
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D. Incorrect Shipments - SUPPLIER shall take prompt remedial action
for any shipment which fails to inform with the applicable
purchase order, after receipt of notice thereof from DGC.
E. Packing Slips - Packing slips will contain such information as is
required by DGC, including but not limited to, DGC's purchase
order number and/or DGC's customer sales order number, DGC's part
number, carton count, ship date, carrier and shipment origin.
F. Shipment Confirmation - SUPPLIER agrees to provide the following
information to DGC within three (3) days after shipment:
Sales Order # Ship Date Waybill # Freight Charges # of Cartons
Weight (in Pounds) Ship Via (Air, Padded Van, Surface, etc.)
4. LICENSED PROGRAM WARRANTY
A. For any LICENSED PROGRAM that is provided by SUPPLIER to DGC and
subsequently provided by DGC to CUSTOMER under an executed
licensing agreement (as opposed to a LICENSED PROGRAM that is
packaged with its own "break-the-seal" type of license
agreement), SUPPLIER warrants to DGC and CUSTOMER that, for
ninety (90) calendar days after successful installation, the
LICENSED PROGRAM will operate in accordance with SUPPLIER's (or
the manufacturer's) published specifications applicable thereto,
and any other specifications and/or requirements set forth in the
applicable PROJECT ATTACHMENT. If DGC reports a material
deviation from the specifications or applicable requirements
within the WARRANTY PERIOD, and SUPPLIER is unable to correct or
offer an alternative acceptable to DGC within thirty (30)
calendar days after receipt of the report, DGC shall have the
option of returning the LICENSED PROGRAM, and receiving a refund
from SUPPLIER of the full amount paid by DGC for such LICENSED
PROGRAM.
B. For any LICENSED PROGRAM that is provided by SUPPLIER to DGC with
its own "break-the-seal" type of license agreement with the media
and documentation package, SUPPLIER shall provide warranty
service directly to CUSTOMER in the manner specified in such
license agreement.
C. SUPPLIER warrants all that is shall replace without charge,
within ten (10) calendar days after receipt of notice, any
LICENSED PROGRAM media or documentation supplied by SUPPLIER that
is, or becomes, defective within ninety (90) calendar days after
successful installation, provided the defect is not due to
accident, abuse or misapplication after arrival at CUSTOMER.
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D. Restrictions - DGC shall not disassemble or reverse compile
PROGRAM(S) unless DGC has received a license to use the related
SOURCE CODE in the applicable PROGRAM ATTACHMENT. DGC shall make
no use of PROGRAM(S) and/or SOURCE CODE except as permitted
thereunder. DGC shall treat and protect such with the same degree
of care assumed by DGC with regard to its own information and
materials of a similar nature and importance, and no less than
reasonable care. DGC shall not remove or alter any copyright or
other proprietary notices affixed to or embedded therein, and
shall include such in all copies made by DGC. DGC shall have no
obligation to determine the appropriateness thereof. DGC shall
not use or authorize the use of PROGRAM(S) and/or SOURCE CODE
outside of the TERRITORY.
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Exhibit 4
LICENSED PROGRAM Support Provisions
This Exhibit is hereby attached to and incorporated into the MSA between DGC and
SUPPLIER and sets forth the provisions applicable to each and every PROJECT
ATTACHMENT involving DGC's purchase of SUPPORT SERVICES for LICENSED PROGRAM(S),
SUPPLIER INFORMATION or NEW WORK to be provided by SUPPLIER. The purpose of this
Exhibit is to identify i) the support requirements of the CUSTOMER CONTRACT, and
ii) each party's responsibilities in fulfilling such requirements. SUPPLIER
shall comply with its support obligations ("SUPPLIER SERVICES"), as set forth
below, during the WARRANTY PERIOD, if any, and such subsequent periods, if any,
for which DGC has paid the applicable SUPPORT SERVICES Fee, if any.
1. COMMUNICATION
Each party shall designate in writing the names of specific individuals
that shall act as such party's representatives for purposes of
contacting the other party's support center. Each party reserves the
right to change such names when appropriate. Unless otherwise agreed
for a particular matter or circumstance, DGC shall provide support
directly to and act as the contact point with the applicable CUSTOMER.
SUPPLIER shall interface with DGC.
2. SUPPORT SERVICES FEE
The SUPPORT SERVICES Fee shall be as set forth in the applicable
PROJECT ATTACHMENT.
3. PHONE-CALL SUPPORT
SUPPLIER shall promptly alert DGC to known problems, including any
solutions or workarounds, and answer DGC's questions, submitted via
telephone, related to operation, sysgen and installation,
configuration, documentation, general product information, and Trouble
Reporting and Resolution services. When DGC calls SUPPLIER, DGC will
have already conducted an investigation of the problem. The level of
telephone consultation provided by SUPPLIER should minimally be at the
system engineer level. The telephone hotline service will be available
from 8:00 A.M. to 8:00 P.M., Eastern Time.
4. TROUBLE REPORTING AND RESOLUTION
SUPPLIER and DGC shall use the following procedures for Trouble Reports
(TRs).
A. TR Generation - DGC must sufficiently define the problem in the
TR so it can be reproduced by SUPPLIER. SUPPLIER shall promptly
notify DGC if SUPPLIER can not reproduce the problem. DGC shall
request additional information and the TR
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will have a status of "Waiting". If the TR arrives after 3:00 PM,
SUPPLIER's local time, the acknowledgment and verification
interval will begin at the start of the next day.
B. TR Content - A single TR contains only one (1) reported problem,
to ensure separate tracking of unrelated problems.
C. TR Responses - The following are the types of TR responses:
1) "Fix" - usually a change that will close the TR. It may be a
patch (the modification of an existing binary file), a
replacement module, a special program, or a change in
documentation. A Fix will be provided to DGC within the time
frame specified for the assigned Priority Code, even if the
problem will be addressed in the next release. A Fix
includes the change to the code as well as to the related
documentation. A single Fix may apply to more than one TR.
2) "Workaround" - usually a set of procedures that circumvents
or mitigates the impact of a problem, though the problem
continues to exist. A workaround may be provided in lieu of
a Fix for a specific TR.
D. Priority Codes - The Priority Code indicates the urgency
with which SUPPLIER must respond to the TR. DGC will use the
nature of the problem and the business situation to
determine the Priority Code. The TR Priority Code may be
reclassified by SUPPLIER upon consent by DGC. This may
occur, for example, if SUPPLIER provides a satisfactory
Workaround for the problem or determines that the problem
arises from a faulty understanding of the original TR. The
Priority Codes are as follows:
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Priority Code #
Description
10 URGENT PROBLEM - System or major application is not
functional or seriously impacted and there is no reasonable
Workaround currently available.
20 MODERATE PROBLEM - System or application is
moderately impacted. There is no Workaround currently
available or the Workaround is cumbersome to utilize.
30 NON-CRITICAL PROBLEM - System or application is
impacted but causes little or no loss of productivity for
users.
90 REQUESTS FOR ENHANCEMENTS - Although not a
problem, will be treated with the same procedures. An
acceptable response states whether or not the request will be
honored, with no commitment necessary.
Priority Code 10 and 20 TRs will be given top priority.
E. TR Receipt Acknowledgment and Verification - SUPPLIER will
send an acknowledgment of its receipt of an TR to DGC. At
receipt, SUPPLIER will i) enter the TR into the central
problem reporting database, ii) assign technical staff to
verify and analyze the TR, and iii) assign the appropriate
status category to the TR. The acknowledgment and the attempt
to reproduce the problem will be done according to the
following schedule:
Priority Code # Acknowledge/Reproduce Problem
10,20 Within 1 day
30 Within 5 days
90 Within 10 days
F. TR Response: Type and Interval Definition - After receipt and
verification, SUPPLIER shall enter the TR into the TR database,
commence to correct the problem, test the proposed correction
(including regression testing) and forward the correction to DGC
for implementation. SUPPLIER shall provide both an initial and a
final response for each TR. The time period for providing an
initial response begins when an TR has been acknowledged and
verified by SUPPLIER. A final response is made and the TR is
closed when a correction for the problem is included in the next
release.
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Each Priority Code specifies the required content of the initial
response to the TR and the maximum number of days in which such
response shall be made available to DGC. SUPPLIER shall revise
the TR record with information on the initial and final responses
on a timely basis.
Priority INITIAL RESPONSE
CODE (DAYS - RESPONSE TYPE) FINAL RESPONSE
10 1 - Fix or Workaround with Integrate Fix into next
daily update release
20 1 - Fix or Workaround Integrate Fix into next
release
30 30-Fix or Workaround Integrate Fix into next
release
90 125-Fix or Workaround at Fix may be integrated into
SUPPLIER's discretion next release at
SUPPLIER's discretion
G. Performance Goals - SUPPLIER will use its best efforts to provide
the initial response to an TR within the time period for the
Priority Code unless otherwise mutually agreed. SUPPLIER will
provide an initial response to a Priority Code 10 TR as quickly
as possible, based on continuous effort until relief is provided.
Daily updates will be provided to DGC for Priority Code 10 TRs.
H. TR Reporting - The TR form may be submitted electronically. Upon
receipt of an TR, SUPPLIER will enter the TR into its central TR
problem reporting database. An TR record shall contain the date,
status, problem description, configuration, activities done to
reproduce the problem, the Severity Code, and the TR
identification number. The TR record may contain any other
pertinent information. Activities done to resolve the problem
along with the resolution are recorded in the TR record as they
occur. Attachments such as large quantities of input and output
data (e.g., core dumps) may be sent electronically with the
original TR or mailed.
The TR status categories are to be mutually agreed on.
Suggested status categories are:
1. Acknowledged
2. Reproduced
3. Waiting for more information
4. Under Investigation
5. Deferred - A bug exists but no Fix until the next
release.
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6. Not a SUPPORT SERVICES issue - The problem is not
caused by an item overed by SUPPORT SERVICES.
7. User error
8. Not reproducible
9. Duplicate TR - The original TR is cross-referenced.
10. Fix being developed.
11. Fix supplied
12. Fix in next release
13. Closed - DGC and SUPPLIER agree the problem is resolved.
I. Monthly Summary of Escalated Calls - SUPPLIER agrees to
summarize all responses to all unresolved TRs in a monthly
written report that will be provided to DGC within ten (10)
days after the end of each month, and shall include a
description of the specific problem resolution actions taken
or contemplated, and the status of SUPPLIER's remedial efforts
and anticipated time of solution.
5. COMPATIBILITY
Within ninety (90) calendar days after SUPPLIER's receipt of a
subsequent release of the operating system for the applicable DGC
computer system, SUPPLIER shall issue, at no separate or additional
charge to DGC, a subsequent release of LICENSED PROGRAM that continues
to fulfill SUPPLIER's other obligations under the applicable PROJECT
ATTACHMENT and maintains compatibility with such subsequent release of
the operating system.
6. PARITY
Within ninety (90) calendar days after SUPPLIER first issues each new
release of its program, equivalent to LICENSED PROGRAM, made for use on
a non-DGC operating system, SUPPLIER shall issue, to the extent
technically feasible, a subsequent release of LICENSED PROGRAM that
fulfills SUPPLIER's other obligations under the applicable PROJECT
ATTACHMENT and maintains parity with such equivalent program.
7. SUPPORT PERIOD
SUPPLIER will support each release for a period until one hundred
eighty (180) calendar days after SUPPLIER is authorized to commence
shipment of the subsequent release in accordance with the provisions of
this Exhibit (hereinafter called "SUPPORT PERIOD"). During the SUPPORT
PERIOD for each release, problems therein shall be corrected in
accordance with the procedures set forth herein. After the expiration
of the SUPPORT PERIOD for a specific release, problems discovered
therein, which are also reproducible on the then current release, shall
continue to be corrected in accordance with the procedures set forth
herein. Those problems which are not reproducible on the then current
release shall be
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addressed, at SUPPLIER's then current standard terms and prices, within
a reasonable time after DGC's written request.
8. PRODUCT NEWSLETTER
DGC provides and uses for support purposes an on-line product
newsletter describing proposed changes, future releases, information on
compatibility and third party programs or hardware, tips and
techniques, articles, and known problems and solutions not covered in
the TR database, as well as general information. As part of SUPPORT
SERVICES, SUPPLIER will provide relevant information DGC, of the type
that SUPPLIER generally provides to its other distributors and users,
for inclusion in this newsletter.
9. IMPLEMENTATION OF SUBSEQUENT RELEASES
A. General - DGC shall be required to use a subsequent release of
LICENSED PROGRAM only to the extent that such subsequent release
of LICENSED PROGRAM has been accepted for use by DGC's customer
in accordance with the applicable provisions of the CUSTOMER
CONTRACT.
B. Subsequent Releases Included in SUPPORT SERVICES - It is the
intention of the parties that DGC shall have the right, but not
the obligation to obtain from SUPPLIER, as part of SUPPORT
SERVICES any subsequent release of LICENSED PROGRAM, however
designated by SUPPLIER, to the extent that such subsequent
release contains a modification, enhancement, Fix, Workaround or
other change that does not meet the definition of a "NEW
VERSION". A subsequent release is defined as a "NEW VERSION" only
if such release is made generally available by SUPPLIER i) under
a designation or model number different from that used for the
immediately prior release, ii) at a charge that is separate from
or in addition to both the original licensing fee and the usual
and customary support fee charged for support and bug fixes, and
iii) while SUPPLIER continues to separately license and support
the immediately prior release. A NEW VERSION shall only be deemed
to be offered to DGC as part of SUPPORT SERVICES to the extent
that the parties make express provisions to do so.
C. DGC Requested Changes - SUPPLIER agrees, at its then current
standard charges and terms, to make enhancements, changes,
modifications, and additions to LICENSED PROGRAM, in addition to
those required or provided by SUPPORT SERVICES, as may be
reasonably requested by DGC.
D. Format - Subsequent releases containing minor changes may be made
available with the documentation changes specified in a separate
release notice. Subsequent releases containing major
modifications or enhancements shall be made available with the
changes integrated into a revised set of documentation.
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