EXHIBIT 10.23
XXXXXX CORPORATION
SOFTWARE LICENSE AGREEMENT
This Agreement entered into as of the 31st day of July, 1984 by and between
Consilium Associates, Inc. having an office at 0000 X. Xxxxxxxx Xxxx, Xxxxx 000,
Xxxx Xxxx, Xxxxxxxxxx 00000, (hereinafter "Licensor") and Xxxxxx Corporation,
having an office at X.X. Xxx 000, Xxxxxxxxx, Xxxxxxx, 00000, (hereinafter
"Licensee").
WHEREAS, the Licensor has developed, and is owner of the right, title and
interest in a certain computer program and is desirous of licensing such
computer program to others; and
WHEREAS, Licensee is desirous of obtaining a license for the installation and
the use of said computer program at a selected computer cluster for providing
computer processing locally at the computer cluster and remotely through the use
of computer terminals.
NOW, THEREFORE, it is agreed as follows:
1. Annexes
The Annexes to this Agreement, all of which form an integral part of this
Agreement, are as follows:
a. Annex A - Description of the Licensed Program
b. Annex B - List of Documentation and Software
c. Annex C - Specifications for Licensed Programs
d. Annex D - Installation and Training
e. Annex E - Maintenance and Enhancement
f. Annex F - Modification to Licensed Program
g. Annex G - Acceptance Test Program
2. Licensed Program
The computer program of Licensor called COMETS as further described in Annex A
is to be licensed hereunder (hereinafter called `Licensed Program').
3. Documentation and Software
The list of documentation software, i.e. human readable information, for the
Licensed Program set forth In Annex B (hereinafter called "Licensed Software")
is to be delivered by Licensor at no cost to Licensee.
4. Program Specifications
The specifications for the Licensed Program (hereinafter called `Program
Specifications') are set forth in Annex C.
5. License
Licensor agrees to grant, and hereby grants, to Licensee a non-exclusive,
perpetual, license to use the Licensed Program in computer clusters of Licensee.
Computer cluster No. 1 to be located at Digital Products Division, Melbourne,
Florida. Computer cluster No. 2 to be located at Melbourne, Florida and used by
the Analog and Custom Integrated Circuits Divisions of Xxxxxx Corporation.
Computer Clusters No. 3 and No. 4 locations to be determined prior to delivery.
A Computer Cluster is defined as one or more Digital Equipment Corporation
(`DEC') VAX 780 or 785 mini-computers or other identified VAX family computers
operating together in one location through the use of a network. In the event
the above identified computers are replaced by another DEC computer or any third
party equipment fulfilling the same function, such networked combination of
equipment will be deemed a Computer Cluster. Licensee may access a Computer
Cluster by remote terminals without affecting the number of Computer Clusters.
If Licensee discontinues use of the Licensed Program on Computer Cluster No. 2
through the merger of Clusters Nos. 1 and 2, Licensee may continue the use of
Computer Cluster No. 2 at another location upon payment to Licensor of $100,000.
6. Delivery of Licensed Program
The first Licensed Program shall be delivered within sixty (60) days after
execution of this Agreement. All other Licensed Programs will be delivered
within thirty (30) days after receipt of order by Licensor. The above mentioned
period of time for the delivery of the Licensed Program shall not apply due to
events and conditions beyond Licensor's control. All shipping and freight
charges shall be paid by Licensor.
7. License Fee
a. The license fee for the license ran d hereunder is one million two
hundred thirty-one thousand five hundred ($1,231,500.00) for four
(4) copies of the Licensed Program adjusted by changes due to
modular configuration of each copy of the Licensed Program.
b. The license fees referred to above do not include any amount for
sales, use, excise, or similar taxes which may be imposed by
Federal, State or local governments. If any such taxes (other than
taxes imposed upon Licensor's net income or taxes imposed for
Licensor's personal property) are found at any time to be required,
they will be paid by Licensee as an additional charge.
8. Payment Schedule
The license fee shall be payable in accordance with the following schedule:
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a. Twenty percent (20%) being two hundred forty-six thousand and three
hundred dollars ($246,300)
b. Twenty percent (20%) upon acceptance of the first (1st) copy the
Licensed Program; and
c. Twenty percent (20%) upon delivery of each additional Licensed
Program.
All Licensed Programs must be scheduled for delivery within two (2) years after
the effective date of this Agreement.
9. Retroactive Pricing
In the event Licensee does not purchase all four (4) copies of the Licensed
Programs within two (2) years of the effective date of this Agreement, Licensee
shall pay Licensor the difference between payments previously made by Licensee
and:
If 1 copy delivered $ 550,000
If 2 copies delivered 935,000
If 3 copies delivered 1,210,000
10. Discount Structure
Purchase of Cluster No. 5 and thereafter or any additional modules purchased
independently will be priced at a discount of twenty percent (20%) from the
standard discounted price list of Licensor as then in effect except for modules
that Consilium Associates OEM's. All discounts will be based on the cumulative
level of systems of Licensed Programs purchased since the effective date of this
Agreement.
11. Hardware Interface
Licensor and Licensee agree that, after an exhaustive study, Licensee has chosen
Licensor's Licensed Program to provide a computer aided manufacturing system for
its semiconductor facilities. Implicit in that choice is the operation of the
Licensed Program on computer equipment manufactured by Digital Equipment
Corporation. Without accepting the responsibility for the performance,
manufacture or maintenance of that equipment, Licensor accepts the
responsibility for the ongoing operation of the equipment and Licensed Program
as a system, and within the bounds set by the terms and conditions herein
accepts the obligation of maintaining that system.
12. Completed Installation
For the purpose of this Agreement, "Complete Installation" of the program shall
constitute:
a. The delivery of the Licensed Program to Licensee;
b. Installation of the Licensed Program on Computer Cluster No. 1; and
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c. Completion of the mutually acceptable performance tests for the
Licensed Programs set forth in Annex G, which tests are to include
data provided by Licensee with predetermined results which have been
mutually agreed upon to represent a reasonable measurement of the
Licensed Program capabilities. Acceptance of Computer Cluster No. 1
shall be completed within thirty (30) days.
If the Licensed Program is unable to pass the acceptance test, Licensee has the
option of giving Licensor written notice within thirty (30) days thereafter to
terminate its license to such Licensed Program. In such event all payments
previously made by Licensee to Licensor in respect of such Licensed Program
shall be refunded by Licensor to Licensee, and Licensee shall have no obligation
to make any further payments, and the Licensed Program shall be returned by
Licensee to Licensor pursuant to Paragraph 16(c); or Licensee may elect to
extend the acceptance period to give Licensor additional opportunity to correct
the nonconformance; or both parties may mutually negotiate an adjustment to the
price.
13. Limited Warranty
If, at any time within twelve (12) months from the date of Complete
Installation, the Licensed Program is considered by Licensee not to be in
conformance with the Program Specifications, Licensee shall promptly notify
Licensor in writing of such alleged nonconformance, and Licensor shall, within
thirty (30) days of receipt of such written notification, correct such
deficiency at no cost to Licensee or begin corrective action and diligently
pursue the same to completion.
Under no circumstances shall Licensor be responsible for changes made to the
Licensed Program by Licensee unless such changes were reviewed and approved in
writing by Licensor. If it is determined that a deficiency is due to changes
made by Licensee in the Licensed Program not approved by Licensor, time and
expense associated with the correction of the deficiency by Licensor shall be
billable by Licensor at its then current rates.
During this warranty period, Licensor shall provide, at no added cost to
Licensee, all changes, improvements, modifications, enhancements, and otherwise
maintain the Licensed Program in the same manner and to the same extent as
provided in the maintenance contract attached hereto as Annex E.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED, TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
14. Confidentiality
The Licensed Programs, Documentation and Software are and remain at all times
the property of Licensor. Licensee recognizes that the Licensed Programs,
Documentation and Software constitute confidential information of Licensor.
Licensee shall not provide, or otherwise make available, any Licensed Programs,
Documentation or Software to any third party without prior written consent from
Licensor. However, it is understood that this requirement for confidentiality
does not apply to:
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a. Any information that is presently in the public domain, or
b. Any information in the future that becomes public without breach of
this Agreement, or
c. Any information that is received by Licensee from a third party
without a similar restriction and without breach of this Agreement,
or
d. Any information that is already known by Licensee prior to the
receipt of the Licensed Program, Documentation or Software or
e. Any information that is in the future independently developed by
Licensee without the use of the Licensed Programs, Documentation and
Software.
The requirement of confidentiality shall extend for a period of seven (7) years
after the termination of this Agreement.
Licensee shall use its reasonable efforts to keep the Licensed Programs,
Documentation and Software confidential including having Licensee's employees
execute Licensee's standard employee agreement. Notwithstanding the above,
Licensee shall not be liable for, nor shall this Licensee be terminated for, an
inadvertent disclosure, or improper use of, the Licensed Program, Documentation
and Software provided that (1) the same degree of care is used in safeguarding
the Licensed Program as is used by Licensee for safeguarding its own information
of like importance and (2) upon discovery of such Inadvertent disclosure or use
Licensee endeavors to prevent any further inadvertent disclosure or use.
15. Permission to Copy Licensed Programs and Documentation and Software
The Licensee shall not copy, in whole or in part, any portion of the Licensed
Programs, Documentation and Software except for Licensee's needs for training,
using, maintaining and modifying the Licensed Programs. The original and any
copies of the Licensed Programs, Software and Documentation, in whole or in
part, shall be the property of the Licensor. The Licensee shall keep no more
than three (3) copies and the original of the Licensed Programs and the
Documentation and Software at the computer cluster of installation. Xxxxxx
agrees to affix to each and every copy of the Licensed Programs, Documentation
and Software the Consilium proprietary notices affixed to the original materials
delivered to Xxxxxx.
16. Installation and Training
Licensor shall install the Licensed Program. Licensor shall provide up to
twenty-five (25) days of training as part of the installation of Computer
Cluster No. 1. Any additional installation and training shall be charged at six
hundred dollars ($600) per day and provided by Licensor as set forth in Annex D
or otherwise requested by Licensee.
17. Maintenance and Enhancement
Maintenance shall be provided by Licensor in accordance with the Agreement
attached hereto as Annex E. The first year of maintenance is provided at no
charge in fulfillment of Licensor's
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warranty hereunder. The second year of maintenance shall be provided for each
site by Licensor for a sum equal to ten percent (10%) of the undiscounted,
published license fee at the time of execution of this Agreement. Thereafter for
each additional year of maintenance, Licensee shall pay Licensor the previous
year's maintenance fee increased by the amount of increase, if any, of the Index
of Average Weekly Earnings for computer and data processing services, all
cities, (as published by the U.S. Department of Labor) for the month of the
commencement of the annual maintenance period, over the value of said index for
the month of commencement of the annual maintenance period for the previous
year. In the event the computer and data processing services portion of the
Index of Average Weekly Earnings or the Index itself is discontinued by the
Department of Labor, Licensor and Licensee agree to the substitution herein of
any substitute Index published by the Department of Labor. In the event no such
substitute is published, Licensor and Licensee shall agree in a mutually
acceptable alternative Index.
18. Modifications
Licensee has the right, at its own discretion, to modify the Licensed Program,
however, Licensor shall not be responsible for any such modification unless such
modifications were received and approved by Licensor. Licensor shall provide one
copy of source code with each copy of the Licensed Programs. All modifications
of the Licensed Program remain subject to the terms and conditions of this
Agreement. Licensor shall have the right to sublicense any such modification by
Licensee under reasonable terms and conditions and at a royalty rate to be
negotiated.
19. Indemnification
Licensor warrants that Licensor has full right to license the use of the
Licensed Program to Licensee. Licensor hereby agrees to indemnify Licensee, and
undertakes to hold Licensee harmless, from any claims, suits, losses, attorneys'
fees and damages arising out of any claim that the use of the Licensed Program
by Licensee infringes any U.S. Patent, copyright or trademark, provided,
however, that prompt notice is given to Licensor of any such claim of suit; and
provided further, that Licensor shall have the opportunity to control the
defense and/or settlement of such claim with the reasonable cooperation of
Licensee.
20. Termination
a. This Agreement and any license granted hereunder may be terminated
as follows:
i. By Licensee for nonconformance of the Licensed Program to the
Program specifications pursuant to Paragraph 10, or
ii. By either party by notice in writing, provided the basis for
such termination is a material failure by the other party to
perform its responsibilities and obligations under this
Agreement.
b. Termination of this Agreement for reasons of a material failure by
either party as described above in subparagraph 17(a)(ii) will be
made in accordance with the following provisions:
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i. The party alleging the material failure must submit the facts
of the alleged material failure In writing and in full detail
to the other party.
ii. The party whose material failure is alleged shall be allowed
sixty (60) days after such written notice is given in which to
take steps to correct the material failure or otherwise
satisfy the complaining party.
iii. If at the end of such sixty (60) day period the complaining
party is not satisfied that the material failure has been
corrected and that performance is proceeding as promised, and
assuming the uncured material failure did, in fact, exist as
described, termination without liability on the part of the
terminating party will be effective on the sixty-first (61st)
day after such notification.
c. In the case of termination of this Agreement, Licensee may, at its
discretion, continue to use the Licensed Program and Licensed
Software for a period of not more than four (4) months after the
effective date of termination thereof. This right to continue use of
the Licensed Program is granted by Licensor to permit Licensee to
continue its on-going business with a minimum of interruption while
in the process of converting to another means of satisfying such
requirements, and is not to be construed as an authorization or
acceptance on the part of either party of the other's material
failure or non-conformance or a waiver, in whole or in part, by
either party of any claim for damages. Thereafter, Licensee shall
deliver to Licensor the Licensed Program, and all software
documentation and any copies thereof or destroy the Licensed Program
and copies thereof and certify, in writing, such destruction by an
officer of Licensee thereby terminating the obligations of
confidentiality.
21. Jurisdiction
It is the intention of the parties hereto that this Agreement shall be
construed, interpreted and applied in accordance with the laws of the State of
Florida.
22. Entire Agreement Modification
This Agreement states the entire agreement between the parties hereto with
respect to the subject matter hereof, and all prior and contemporaneous
understandings, representations and agreements are merged herein or superseded
hereby. No alteration, modification, release, or waiver, of this Agreement or
any of the provisions hereof shall be effective unless in writing, executed by
the parties hereto.
23. Construction
Wherever possible, each provision of this Agreement and each related document
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement or any related document
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity
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without invalidating the remainder of such provision or the remaining provisions
of this Agreement.
24. Relationship of the Parties
Each party will be and act as an independent contractor and not as agent or
partner of, or joint venturer with, the other party for any purpose, the
relationship of the parties being solely that of Licensor and Licensee and
neither party by virtue of this Agreement shall have any right, power, or
authority to act or create any obligation, express or implied, on behalf of the
other party. Except as otherwise provided herein or as may hereafter be
established by an agreement in writing executed by authorized representatives of
the parties, all expenses incurred by authorized representatives of the parties,
shall be borne by the party incurring the expense.
25. Non-Waiver Default
Licensee's or Licensor's failure to insist upon the performance of any of the
terms, convenants or conditions of this Agreement or to exercise any rights or
remedies hereunder shall not be construed as a waiver or relinquishment of the
future performance of any such right or remedy unless otherwise provided for
herein.
26. Notices
Notices for all purposes under this Agreement shall be sent by registered or
certified mail and such notices shall be deemed to have been properly served
upon proof of posting by registered or certified mall and are deemed to be
received five (5) days after posting. Notice shall be mailed in the case of
Licensee to:
Xxxxxx Corporation, Semiconductor Sector
X.X. Xxx 000
Xxxxxxxxx, Xxxxxxx 00000
Attention:
or in the case of Licensor to:
Consilium Associates Inc.
0000 X. Xxxxxxxx Xxxx
Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
27. Successors
All covenants, stipulations and promises in this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors,
assigns and legal representatives. Except as otherwise provided, neither party
shall have the right to assign or otherwise transfer its rights or obligations
under this Agreement except with the written consent of the other party;
provided, however, that except as otherwise provided, a successor in interest by
merger, by operation of law, assignment, purchase, or otherwise of the entire
business of either party, shall
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acquire all interest of such party hereunder, without the necessity of obtaining
prior written consent.
28. Force Majeure
Neither Licensor nor Licensee shall be liable for any delay or default in
performance of all or any part of this Agreement, if such delay or default is
caused by conditions beyond its control, including but not limited to: acts of
the elements, fires, floods or other casualties, accidents, strikes, work,
stoppages, inability to obtain equipment, materials, skilled labor or compatible
technology, transportation difficulties, U.S. Governmental interference,
regulation or restriction; and continuing domestic or international `problems
such as war, riot, insurrection, revolution, acts of the public enemy, sabotage,
government instability, or change In government without the benefit of
constitution. In such an event, the party claiming excuse from performance shall
notify the other party within five (5) business days of the occurrence, and the
time for performance shall be extended for the length of any delay.
29. Employment
Licensor and Licensee mutually agree to refrain from soliciting those employees
of the other who possess key knowledge of a proprietary nature regarding the
Licensed Programs or supporting software until twelve (12) months have elapsed
following either:
a. Termination of this Agreement, or
b. Termination of employment with the other party.
30. Export Licensing
Licensor and Licensee acknowledge that the laws and regulations of the United
States restrict the export and re-export of the commodities and technical data
of United States origin, including the Licensed Programs and Documentation
("hereinafter Technical Data"). Licensee represents that it will not export or
re-export any of the Technical Data in any form without the appropriate licenses
of the United States Government. Licensee warrants that the Technical Data will
not be shipped directly or indirectly to Afghanistan or any country listed in
the Country Groups P, Q, S, W, Y or Z now or hereafter specified in Supplement
No. 1 Section 370 of the Export Administration Regulations. Licensee further
warrants that the Technical Data shall not be exported or re-exported to the
Republic of South Africa or Namibia, if it is to be used for or delivered to
military or police entities or is for use in servicing equipment owned,
controlled or used by such entities. All such Technical Data that is exported or
re-exported to the Republic of South Africa or Namibia shall be accompanied by a
written notice to the consignee that the data or its direct products may not be
sold or otherwise made available directly or indirectly to the military or
police entities in these destinations. Licensee further agrees that in the event
any such export includes all or any portion of the Licensed Program source code,
Licensee shall notify Licensor in writing thirty (30) days prior to any such
export.
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31. Damages
Licensor shall not be liable for any incidental, consequential or special
damages, including lost profit due to systems failure.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized authorized representatives.
Licensee
Attest Xxxxxx Corporation
By: /s/ H.E. Xxxxxxx By: [illegible]
---------------- -----------
Date: 8/29/84 Title: Sr. V.P. Sector Executive
------- -------------------------
Date: 8/29/84
-------
Attest Licensor
Consilium, Inc.
By: [illegible] By: /s/ Xxxxxxxx Xxxxxxx
----------- --------------------
Date: 7/31/84 Title: President
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Date: 7/31/84
-------
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ANNEX A
Description of Licensed Program
COMETS MODULES:
ADVANCED WIP TRACKING
SPECIFICATIONS
ENGINEERING DATA COLLECTION
RS1 STATISTICAL ANALYSIS
FACTORY COMMUNICATION
NON-LOT DATA COLLECTION
ACTIVITY PLANNER
FACILITY MONITORING
PROCESS AUTOMATION
STANDARD COST EXTRACT
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ANNEX B
List of Documents and Software
Licensor shall provide Licensee with the source code for the Licensed Program.
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ANNEX C
Program Specifications
Software will perform as represented by Licensor* when executed on Digital
Equipment Corporation hardware configuration as follows:
VAX - 11/780 Processor
- 8 MB MOS Memory
- DMF32 Com. Controllers
RAB1 - AA Disk Drives
TEU - 00 Xxxx Xxxxxx
* The phrase "represented by Licensor" implies functional content of their
software equal to or better than their proposal to Xxxxxx Semiconductor
dated February 20, 1984, their system response time as measured on April
11, 1984, their proposals for custom real time control charts dated April
29, 1984, and any system descriptive language contained in Licensor
supplied COMETS documentation and user manuals.
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ANNEX D
Installation and Training
Licensor shall provide up to twenty-five (25) days of direct assistance to be
used by Licensee at its discretion for either installation assistance, or
training of the Licensee's technical or clerical staff in the use of the
Licensed Program. Licensee shall pay Licensor's reasonable travel and living
expenses in providing such assistance. Licensee, at its option, can request
Licensor to make the entire installation of the Licensed Program, or any portion
thereof. Licensor shall charge Licensee for such installation on in excess of
twenty-five (25) days assistance its standard hourly rates then in effect plus
reasonable travel and living expenses.
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ANNEX E
MAINTENANCE AGREEMENT
THIS AGREEMENT is made by and between CONSILIUM ASSOCIATES, INC. having its
principal place of business at Suite 700, 0000 X. Xxxxxxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxxx 00000 (hereinafter referred to as "Consilium") and XXXXXX CORPORATION
acting through its Semiconductor Sector with a principal place of business at
X.X. Xxx 000, Xxxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "Licensee").
1. Term. The term of this Agreement shall commence on the effective date
of this Agreement and shall extend for an initial period of twelve (12) months.
This Agreement shall then automatically extend for renewal terms of twelve (12)
months until terminated by either party upon sixty (60) days written notice
prior to the end of any twelve (12) month term.
2. Consilium Services. Consilium agrees for the charges stated herein and
during the term of this Agreement, to furnish Licensee the following software
product services for the Licensed Programs and Documentation as defined in Annex
A of the Software License Agreement July 31, 1984 (the License Agreement):
(a) To correct, to the extent reasonably possible, any defects
in the Licensed Programs which cause the Licensed Programs not to operate in
accordance with the description of the Licensed Programs' function in the
Documentation. If Consilium determines that such defects are due to errors in
such description, Consilium shall issue corrections to the Documentation and
shall not be required to alter the Licensed Programs.
(b) To use all possible speed to effect a remedy where such
defects in the Licensed Programs affect the Licensee's day to day operations.
(c) To provide reasonable written and telephone consultation
pertaining to operation and application of the Licensed Programs.
(d) To provide modifications and enhancements to the Licensed
Programs which are designated by Consilium as "internal improvements". Such
modifications and enhancements do not include new modules which Consilium
designates as software products for which Consilium charges separately.
(e) To provide updates to the Documentation as available.
3. Service Limitations. The following services are outside the scope of
this Agreement:
(a) Service for Consilium Custom Programs or other products
not set forth in "Annex E" of the License Agreement.
(b) Service for Licensed Programs which have been subject to
unauthorized modification by Licensee.
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(c) Service for Licensed Programs not maintained to the latest
revision or to the revision prior to the latest revision.
(d) Service due to failure of computer hardware or equipment,
or programs not covered by this Agreement; catastrophe, negligence of Licensee,
operator error, or improper use of hardware or software; but such exclusion does
not exclude Consilium's responsibility to maintain the Interface between the
Licensed Programs and the computer hardware.
4. Licensee Responsibilities.
(a) Licensee, in connection with the services to be furnished
hereunder, shall be responsible for implementing, at Licensee's expense,
Licensed Program corrections and Licensed Program enhancements furnished though
delivery of updates.
(b) Licensee agrees to maintain the Licensed Program to the
latest revision (or revision prior to latest revision) level and to incorporate
all revisions, enhancements, updates and corrections to the Licensed Programs
provided by Consilium. Licensee understands that its failure to incorporate
Consilium Licensed Program updates will cause the Licensed Program. to be
non-conforming and that subsequent Licensed Program updates may be unusable.
(c) Licensee acknowledges that all Licensed Programs, and
changes, improvements or updates to the Licensed Programs provided by Consilium
are subject to the conditions of the License Agreement and Licensee agrees to
abide by those conditions.
5. Charges.
(a) Maintenance shall be provided by Licensor in accordance
with the Agreement attached hereto as Annex E. The first year of maintenance is
provided at no charge in fulfillment of Licensor's warranty hereunder. The
second year of maintenance shall be provided for each site by Licensor for a sum
equal to ten percent (10%) of the undiscounted, published license fee at the
time of execution of this Agreement. Thereafter for each additional year of
maintenance, Licensee shall pay Licensor the previous years maintenance fee
increased by the amount of increase, if any, of the Index of Average Weekly
Earnings for computer and data processing services, all cities, (as published by
the Department of Labor) for the month of the commencement of the annual
maintenance period, over the value of said index for the month of commencement
of the annual maintenance period for the previous year. In the event the
computer and data processing services portion of the Index of Average Weekly
Earnings or the Index itself is discontinued by the Department of Labor,
Licensor and Licensee agree to the substitution herein of any substitute Index
published by the Department of Labor. In the event no such substitute is
published, Licensor and Licensee shall agree in a mutually acceptable
alternative Index.
(b) When, at Licensee's request, Consilium provides on-site
service or service where travel is required, Licensee agrees to pay actual
travel, lodging and meal expenses reasonably incurred by Consilium.
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(c) All charges under this Agreement shall be exclusive of any
amount for sales, use, excise or similar taxes imposed by foreign, federal,
state or local governments. If any such taxes (other than taxes imposed upon
Consilium's net income or personal property) are levied at any time, Licensee
agrees to pay such taxes and, when applicable, such taxes will appear as
separate Items on Consilium invoices.
(d) Licensee agrees to pay for any data-related communications
charges including telephone expenses, telex, air express service, and expenses
for conversion to a storage medium other than magnetic tape for delivery.
6. Designated Equipment Relocation. Consilium shall be under no obligation
to furnish continued service under this Agreement if the Licensed Programs are
moved from their location of initial installation or reinstallation without
prior written notice to Consilium, or if Licensee is otherwise in breach of the
License Agreement.
7. Eligibility. A Licensed Program is eligible for inclusion under this
Agreement immediately upon installation by Consilium or upon expiration of any
Licensed Program warranty.
8. Limitation of Liability. The total of Consilium's liabilities under or
in connection with this Agreement (whether arising from contract or otherwise)
is limited to the total amount of fees paid by Licensee under this Agreement.
CONSILIUM SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, WHETHER BASED UPON CONTRACT, TORT OR ANY OTHER LEGAL
THEORY, ARISING FROM ITS PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT.
9. General.
(a) Assignment. Neither party shall assign or mortgage or
pledge or in any other way part with or dispose of its interest in this
Agreement in whole or in part to any third person other than a subsidiary,
parent or affiliate of Licensee or the purchaser of substantially all the
business being supported by the Licensed Programs without the prior written
consent of the other.
(b) Entire Agreement. This Agreement represents the entire
agreement between the parties, may only be amended by a written agreement signed
by both parties, and supersedes all prior agreements and understandings with
respect to the matters covered by this Agreement.
(c) Delays. Consilium is not responsible for failure to
fulfill Its obligations under this Agreement due to causes beyond its control.
(d) Invalid Provisions. If any provision of this Agreement is
declared to be Invalid under any applicable status or rule of law, the parties
agree that such invalidity shall not affect the remaining portions of this
Agreement.
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(e) Waiver. The failure of either party to exercise any right
or option that is granted herein or to require the performance of any term of
this Agreement or the waiver by either party of any breach of this Agreement,
shall not prevent a subsequent exercise or enforcement of such term or be deemed
a waiver of any subsequent breach of the same or any other term of this
Agreement.
(f) Notice. Any notice required or permitted to be sent under
this Agreement shall be delivered by hand, by cable, charges prepaid, or mailed
by registered mail, postage prepaid, return receipt requested, to the addresses
of the parties set forth above or to such other address as may be furnished in
writing to the other party. Notice so sent shall be deemed effective on personal
delivery or on the third day following the date sent.
(g) Prior Consent. Where reference is made to prior consent
neither party shall unreasonably withhold or delay such consent from the other
party.
(h) Third Parties. For the purposes of this Agreement third
parties shall be deemed not to include employees of either party to this
Agreement.
(i) Substantive Law. Any differences or disputes arising from
the Agreement shall be settled in accordance with Section(s) _____________of the
original Software License Agreement which shall be deemed to be incorporated
herein.
(j) Effective Date. The effective date of this Agreement is
July 31, 1984.
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IN WITNESS WHEREOF, this Maintenance Agreement has been executed and delivered
to be effective as of the date written above.
CONSILIUM:
CONSILIUM ASSOCIATES, INC.
BY: /s/ Xxxxxxxx Xxxxxxx
--------------------------------------
TITLE: President
-----------------------------------
DATE: 7/31/84
------------------------------------
LICENSEE:
XXXXXX CORPORATION
Semiconductor Sector
BY: illegible
--------------------------------------
Senior Vice President
TITLE: Sector Executive
-----------------------------------
DATE: 8/29/84
------------------------------------
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ANNEX F
Modifications
Licensor shall modify the Licensed Program as set forth below. Such
modifications shall be made for the sum of _____________________ dollars ($ ).
The Licensed Program, as modified, shall be delivered with in ______________ ( )
days after the execution of this Agreement.
After Complete Installation of the Licensed Program, modifications to the
Licensed Program made by Licensor pursuant to a request by Licensee shall be
made at Licensor's standard hourly rate then in effect, plus reasonable travel
expenses and living expenses. Licensor shall respond to any written request of
Licensee for modifications to the Licensed Program within thirty (30) days after
receipt thereof indicating whether Licensor shall provide such modification, and
a timetable for implementing the modifications if Licensor agrees to provide the
same. Licensor shall invoice Licensee each thirty (30) days for services
performed pursuant to such modifications and Licensee agrees to pay for such
services within forty-five (45) days of receipt of invoice provided installation
is Complete pursuant to Paragraph 9.
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ESCROW
Licensor agrees to maintain a current copy of source code for Licensed Program
with an escrow agent whose name and address is:
and the escrow agent shall provide the source code to Licensee under any of the
following conditions and in accordance with the attached escrow agreement.
At the Licensee's option, source code for the Licensed Program is to be made
available to Licensee at no cost for Licensee's use in the event that:
i. Licensor voluntarily or involuntarily goes into bankruptcy, becomes
bankrupt, goes into receivership, makes an assignment for the
benefit of creditors or otherwise ceases to conduct business;
ii. Licensor decides not to maintain the Licensed Programs; or Licensor
defaults in providing maintenance by:
1. Failing to provide a consultant at Licensee's site for
corrections of problems for more than seven (7) days beyond
the required time as set forth in Paragraph 10 and thereafter
in the maintenance agreement, provided the problem was in the
Licensed Program, or
2. Failing to adhere to the procedures and time provisions
therein of Paragraph 10 and thereafter in the maintenance
agreement for corrections of problems 4 times in a 3 month
period or 6 times in any 12 month interval, provided that the
problems were in the Licensed Programs.
-21-
Schedule A
Computer Installation
Manufacturer and Model________________________Operating System__________________
CPU Serial Number__________________________Location_____________________________
Software Products Product
Product Fee
------- ---
Engineering Data Analysis (RS/1) $15,000.00
3rd site copy
-22-
