SAIC - ISS-2000 & SABER
This SOFTWARE LICENSE AND SUPPORT AGREEMENT (this "Agreement") is entered into by and between Customer, and Science Applications International Corporation. ("SAIC"), and describes the terms and conditions pursuant to which SAIC shall license to Customer certain Software (as defined below).
In consideration of the mutual promises and upon the terms and conditions set forth below, the parties agree as follows:
1. Definitions
1.1 "Confidential Information" means all Software listings, Documentation, information, data, drawings, benchmark tests, specifications, trade secrets, object code and machine-readable copies of the Software, source code relating to the Software, and any other proprietary information supplied to Customer by SAIC, including all items defined as "confidential information" in any other agreement between Customer and SAIC whether executed prior to or after the date of this Agreement.
1.2 "Documentation" means any instructions, manuals or other materials, and on-line help files, regarding the Use of the Software.
1.3 "Effective Date" means the date on which Customer receives Software from SAIC.
1.4 "Equipment" means the computer system, including peripheral equipment and operating system software, purchased by the Customer.
1.5 "Maintenance and Support" means the services described in Section 5.1.
1.6 "Site" means each physical location of one or more CPUs at which Customer is entitled to Use the Software.
1.7 "Software" means the computer software programs purchased by the Customer.
1.8 "Subsidiaries" means all current and future business entities of which a party owns, directly or indirectly, more than fifty percent (50%) of the equity securities or other equity interest granting such party voting rights exercisable in electing the management of the entities, for so long as such ownership exists. Notwithstanding the inclusion of Subsidiaries in the definition of Customer in this Agreement, SAIC's affirmative obligations will be limited to the Customer entity that purchases the software. Such entity hereby guarantees the performance of its Subsidiaries under this Agreement and shall indemnify and hold harmless SAIC from and against all losses, costs, liabilities and expenses arising out of or relating to any breaches by such Subsidiaries of this Agreement.
1.9 "Update" means error corrections or fixes to the version of the Software purchased by the Customer. Updates shall not include upgrades or new versions of the Software.
1.10 "Upgrade" means any new version or revision of the Software that modifies its functionality.
1.11 "Use" means operation of the Software by Customer for its own internal information processing services and computing needs.
2. Grant of License
2.1 Upon receipt of the License Fee set forth in Section 4 of this Agreement and subject to the terms and conditions of this Agreement, SAIC hereby grants to Customer a perpetual but revocable, limited, nonexclusive and nontransferable license to (a) Use the Software on the Equipment and at the Site, and (b) use the Documentation in connection with Use of the Software. This license transfers to Customer neither title nor any proprietary or intellectual property rights to the Software, Documentation, or any copyrights, patents, or trademarks, embodied or used in connection therewith, except for the rights expressly granted herein.
2.2 SAIC shall issue to Customer, as soon as practicable after the Effective Date, one (1) machine-readable copy of the Software and one (1) key per license for Use at the Site only, along with one (1) copy of the appropriate Documentation.
2.3 If the specified Equipment is inoperable or under repair, Customer will be entitled to transfer the Software to other Equipment.
2.4 Customer will be entitled to make a reasonable number of machine-readable copies of the Software for backup or archival purposes. Customer may not copy the Software, except as permitted by this Agreement. . All copies of the Software will be subject to all terms and conditions of this Agreement. Whenever Customer is permitted to copy or reproduce all or any part of the Software, all titles, trademark symbols, copyright symbols and legends, and other proprietary markings must be reproduced.
3. License Restrictions
Customer agrees that it will not itself, or through any parent, subsidiary, affiliate, agent or other third party:
sell, lease, license or sublicense the Software or the Documentation;
decompile, disassemble, or reverse engineer the Software, in whole or in part;
allow access to the Software by any User other than Customer's employees;
write or develop any derivative software of any other software program based upon the Software or any Confidential Information;
use the Software to provide processing services to third parties, or otherwise use the Software on a 'service bureau' basis; or
provide, disclose, divulge or make available to, or permit use of the Software by any third party without SAIC's prior written consent.
Modify the Software.
4. License and Maintenance Support Fees
4.1 In consideration of the license granted pursuant to this agreement, Customer agrees to pay SAIC the License Fee. The License Fee is due and payable in full upon Customer receipt of the associated SAIC invoice.
4.2 "Customer may also elect to pay SAIC a Maintenance Fee in addition to the License Fee stated in Section 4.1, for Maintenance and Support to be provided by SAIC in accordance with Section 5."
4.3 All charges and fees provided for in this Agreement are exclusive of and do not include any taxes, duties, or similar charges imposed by any government. Customer agrees to pay or reimburse SAIC for all federal, state, dominion, provincial, or local sales, use, personal property, excise or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes on the net income of SAIC).
5. Maintenance and Support
SAIC may provide, at its sole discretion, Maintenance and Support as specified in this Section 5 on a time and materials basis at SAIC's then-current time and materials labor rates.
5.1 Maintenance and Support Services. (Applicable if purchased by Customer) Maintenance and Support means: (a) Upgrades, if any, and appropriate Documentation Maintenance and Support will be provided only with respect to versions of the Software that, in accordance with SAIC policy, are then being supported by SAIC.
5.2 Eligibility of Software and Equipment. Maintenance and Support will not include services requested as a result of, or with respect to, the following, and any services requested as a result thereof may or may not be performed, at SAIC's sole discretion. Any such services provided will be billed to Customer at SAIC's then-current time and materials labor rates:
accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; failure of electric power, air conditioning or humidity control; failure of rotation media not furnished by SAIC; operation of the Software with other media not meeting or not maintained in accordance with the manufacturer's specifications; or causes other than ordinary use;
improper installation by Customer or use of the Software that deviates from any operating procedures established by SAIC in the applicable Documentation;
modification, alteration or addition or attempted modification, alteration or addition of the Software undertaken by persons other than SAIC or SAIC's authorized representatives.
5.3 Responsibilities of Customer. SAIC's provision of Maintenance and Support to Customer is subject to the following:
Customer shall provide supervision, control and management of the Use of the Software. In addition, Customer shall implement procedures for the protection of information and the implementation of backup facilities in the event of errors or malfunction of the Software or Equipment.
Customer shall maintain a current backup copy of all programs and data.
Customer shall properly train its personnel in the Use and application of the Software and the Equipment on which it is used.
6. LIMITED WARRANTY AND LIMITATION OF LIABILITY (SOFTWARE ONLY)
6.1 Limited Warranty. SAIC warrants for a period of ninety (90) days following the date of delivery of the Software to Customer that the Software will substantially operate according to the specifications set forth in the Documentation and product literature. If it is determined by Customer that the Software does not substantially operate according to such specifications, SAIC may, at its option and expense, apply commercially reasonable efforts to implement programming changes or to correct reproducible errors or correcting misstatements and omissions in the User's Guide. The parties acknowledged that the Software is inherently complex and may contain errors and SAIC cannot and does not guarantee to correct all such errors. Furthermore, SAIC cannot guaranty the quality, completeness or validity of the data being processed by the Software. The remedies set forth in this Section 6.1 constitutes Customer's sole and exclusive remedy for breach of this Warranty, additional maintenance services for the Software under this Agreement are available on a time and materials basis at SAIC's then-current rates.
6.2 NO OTHER WARRANTIES. SAIC MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE SOFTWARE OR THE DOCUMENTATION, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT, INCLUDING MAINTENANCE AND SUPPORT. SAIC SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND SAID OTHER MATERIALS AND SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.
6.3 LIMITATION ON LIABILITY. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT, IN NO EVENT WILL SAIC BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE OR SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF SAIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, SAIC WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY OR FURNISHING THE SOFTWARE OR SAID SERVICES. SAIC'S LIABILITY UNDER THIS AGREEMENT FOR DAMAGES WILL NOT, IN ANY EVENT, EXCEED THE LICENSE FEE PAID BY CUSTOMER TO SAIC UNDER THIS AGREEMENT.
THE PROVISIONS OF THIS SECTION 6 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND SAIC. SAIC'S PRICING REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.
NO ACTION ARISING OUT OF ANY BREACH OR CLAIMED BREACH OF THIS AGREEMENT OR TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. FOR PURPOSES OF THIS AGREEMENT, A CAUSE OF ACTION WILL BE DEEMED TO HAVE ACCRUED WHEN A PARTY KNEW OR REASONABLY SHOULD HAVE KNOWN OF THE BREACH OR CLAIMED BREACH.
NO EMPLOYEE, AGENT, REPRESENTATIVE OR AFFILIATE OF SAIC HAS AUTHORITY TO BIND SAIC TO ANY ORAL REPRESENTATIONS OR WARRANTY CONCERNING THE SOFTWARE. ANY WRITTEN REPRESENTATION OR WARRANTY NOT EXPRESSLY CONTAINED IN THIS AGREEMENT WILL NOT BE ENFORCEABLE.
7. INDEMNIFICATION FOR INFRINGEMENT
SAIC shall, at its expense, defend or settle any claim, action or allegation brought against Customer that the Software infringes any patent, copyright, trade secret or other proprietary right of any third party and shall pay any final judgments awarded or settlements entered into; provided that Customer gives prompt written notice to SAIC of any such claim, action or allegation of infringement and gives SAIC the authority to proceed as contemplated herein. SAIC will have the exclusive right to defend any such claim, action or allegation and make settlements thereof at its own discretion, and Customer may not settle or compromise such claim, action or allegation, except with prior written consent of SAIC. Customer shall give such assistance and information as SAIC may reasonably require to settle or oppose such claims. In the event any such infringement, claim, action or allegation is brought or threatened, SAIC may, at its sole option and expense:
procure for Customer the right to continue Use of the Software or infringing part thereof, or
modify or amend the Software or infringing part thereof or replace the Software or infringing part thereof with other software having substantially the same or better capabilities; or, if neither of the foregoing is commercially practicable,
terminate this Agreement and repay to Customer the Software License Fee and associated equipment costs, if any. SAIC and Customer will then be released from any further obligation to the other under this Agreement, except for the obligations of indemnification provided for above and such other obligations that survive termination.
The foregoing obligations shall not apply to the extent the infringement arises as a result of modifications to the Software made by any party other than SAIC or SAIC's authorized representative.
The foregoing states the entire liability of SAIC with respect to infringement of any patent, copyright, trade secret or other proprietary right.
8. Confidential Information
8.1 Customer acknowledges that the Confidential Information constitutes valuable trade secrets and Customer agrees that it shall use Confidential Information solely in accordance with the provisions of this Agreement and will not disclose, or permit to be disclosed, the same, directly or indirectly, to any third party without SAIC's prior written consent. Customer agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. However, Customer bears no responsibility for safeguarding information that is publicly available, already in Customer's possession and not subject to a confidentiality obligation, obtained by Customer from third parties without restrictions on disclosure, independently developed by Customer without reference to Confidential Information, or required to be disclosed by order of a court or other governmental entity. Nothing herein will prevent routine discussions by Customer that normally take place in a "user group" context.
8.2 SAIC acknowledges that, in the course of its performance of this Agreement, it may become privy to certain information that Customer deems proprietary and confidential. SAIC agrees to treat all such information that is identified in writing as proprietary and confidential in a confidential manner and will not disclose or permit to be disclosed the same, directly or indirectly, to any third party without Customer's prior written consent. However, SAIC bears no responsibility for safeguarding information that is publicly available, already in SAIC's possession and not subject to a confidentiality obligation, obtained by SAIC from third parties without restrictions on disclosure, independently developed by SAIC without reference to such information, or required to be disclosed by order of a court or other governmental entity.
8.3 In the event of actual or threatened breach of the provisions of Section 8.1 or 8.2, the parties acknowledge that the nonbreaching party may have no adequate remedy at law and will be entitled to seek immediate injunctive and other equitable relief.
9. Term and Termination
9.1 This Agreement will take effect upon receipt of the Software or Equipment by Customer and Customer's right to receive Maintenance and Support will remain in force for a period of one (1) year unless sooner terminated in accordance with this Agreement. Customer's right to receive Maintenance and Support for the Software may be extended by mutual agreement of the parties, subject to the negotiation of a mutually acceptable fee structure for such extension periods.
9.2 This Agreement may be terminated by Customer upon thirty (30) days' prior written notice to SAIC, with or without cause, provided that no such termination will entitle Customer to a refund of any portion of the License Fee.
9.3 SAIC may, by written notice to Customer, terminate this Agreement and the License granted under Section 2.1 if any of the following events ("Termination Events") occur:
Customer fails to pay any amount due SAIC within thirty (30) days after SAIC gives Customer written notice of such nonpayment; or
Customer is in material breach of any nonmonetary term, condition or provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after SAIC gives Customer written notice of such breach; or
Customer (i) terminates or suspends its business, (ii) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes; or
If any Termination Event occurs, termination will become effective immediately or on the date set forth in the written notice of termination. Termination of this Agreement will not affect the provisions regarding Customer's or SAIC's treatment of Confidential Information, provisions relating to the payment of amounts due, or provisions limiting or disclaiming SAIC's liability, which provisions will survive termination of this Agreement.
9.4 Within thirty (30) days after the date of termination or discontinuance of this Agreement for any reason whatsoever, Customer shall return the Software and all copies, in whole or in part, any keys, all Documentation relating thereto, and any other Confidential Information in its possession that is in tangible form. Customer shall furnish SAIC with a certificate signed by a duly authorized representative of Customer verifying that the same has been done.
10. Nonassignment/Binding Agreement
Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of SAIC, which consent will not be unreasonably withheld.
Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
11. Notices
Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be either (a) delivered in person, (b) sent by first class registered mail, or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address set forth below. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, three (3) business days after deposit in the mail as set forth above, or one (1) day after delivery to an overnight air courier service.
12. Miscellaneous
12.1 Use, duplication, or disclosure by the Government of the Software or Documentation is subject to the restrictions and protections under DFAR 252.227-7015, Technical Data-Commercial Items (Nov. 1995), and is subject to the restrictions and protections set forth in this Agreement as prescribed in DFAR 227.7202-4 (June 1995), or, as applicable, FAR 52.227-19, Commercial Computer Software-Restricted Rights (June 1987).
12.2 Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded.
12.3 Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights and remedies at any time, will not be construed and will not be deemed to be a waiver of such party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party's right to take subsequent action.
12.4 If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
12.5 This Agreement (including the Attachments and any addenda hereto signed by both parties) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter, except as provided in Section 1.1 with respect to the definition of "Confidential Information."
12.6 No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the licensing of the Software will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of SAIC to object to such terms, provisions or conditions.
12.7 This Agreement may not be amended except by a writing signed by both parties.
12.8 Unless expressly provided otherwise in this Agreement, any prior consent of SAIC that is required before Customer may take an action may be granted or withheld in SAIC's sole and absolute discretion.
12.9 Customer may not export or re-export the Software without the prior written consent of SAIC and without the appropriate United States and foreign government licenses.
12.10 Customer acknowledges that SAIC may desire to use its name in press releases, product brochures and financial reports indicating that Customer is a customer of SAIC, and Customer agrees that SAIC may use its name in such a manner, subject to Customer's consent, which consent shall not be unreasonably withheld.
12.11 No exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
12.12 This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.
12.13 This Agreement will be interpreted and construed in accordance with the laws of the State of California and the United States of America, without regard to conflict of law principles.
12.14 SAIC is not the manufacturer of the Equipment hardware components and gives no warranty, either express, implied or statutory, with regard to the hardware equipment purchased pursuant to this Agreement. SAIC hereby assigns to Customer any and all rights of SAIC under any manufacturer's warranty relating to the equipment. SAIC agrees to assist Customer in any efforts Customer wishes to make in asserting warranty rights against the manufacturer. SAIC gives no warranty of its own in respect to the hardware, and offers no independent hardware maintenance program.