Exhibit 10.43
SOFTWARE LICENSE AND SERVICES
AGREEMENT
This Software License And Services
Agreement (this “Agreement”) is made as of
September 28, 2006 (the “Effective Date”) by and
between Connecticut General Life Insurance Company
, a Connecticut corporation having a place of business at 900
Cottage Grove Road, Bloomfield, Connecticut 06152
(“Customer”), and Chordiant Software,
Inc. , a Delaware corporation having its principal place
of business at 20400 Stevens Creek Blvd., Suite 400, Cupertino, CA
95014 (“Chordiant”). The terms of this
Agreement shall apply to each Software license granted by Chordiant
under this Agreement, which shall be identified on the Order
Form.
1. Definitions.
(a)
“CIGNA Entities” means (i) Customer
and Customer subsidiaries, divisions and affiliates, as well as any
divested or spun off Customer entities or divisions, (ii) business
partners, members, suppliers or customers of the entities set forth
in (i) and (iii) healthcare providers; provided that all individual
users of such partners, members, suppliers, customers and
healthcare providers shall be considered users for purposes of
counting the Number of Concurrent Users.
(b)
“ CIGNA Agent ” means International
Business Machines Corporation or such other third party service
provider or providers designated by Customer.
(c)
“ Number of Concurrent Users ” means
the peak sum of simultaneous users at any given time within a
twelve (12) month period.
(d)
“Delivery Date” means the date on
which Chordiant delivers the Software to Customer or its designee,
or if no delivery is necessary, the Effective Date set forth above
or on the relevant Order Form.
(e)
“Designated Contact” means the contact
person or group designated by Customer who shall coordinate all
Support requests to Chordiant.
(f)
“Documentation” means all
documentation, technical manuals, operator and user guides and
manuals, flow diagrams, file descriptions and other written
information describing the functions, operational characteristics
and specifications of the Software or other technology, or
explaining how to install, use, maintain or support the Software or
other technology. Documentation is provided in CD-ROM or
bound form, whichever is generally available.
(g)
“Error” means a reproducible error,
defect or problem in the Supported Program or Documentation which
causes the Supported Program not to operate substantially in
accordance with the Documentation
(h)
“License Fee” means the license fee(s)
payable by Customer or CIGNA Agent pursuant to Section 8 and as set
forth in any particular Order Form.
(i)
“Order Form” means the document in
hard copy form by which Customer orders Software licenses, and
which is agreed to by the parties, or which is agreed to between
Chordiant and a CIGNA Agent (and where the licensed Software is
listed on Schedule A hereto). The Order Form shall
reference the Effective Date and be governed by the terms of this
Agreement.
(j)
“Resolution” means a modification or
workaround to the Supported Program and/or Documentation provided
by Chordiant to Customer that resolves an Error without additional
cost to Customer or adverse impact to the CIGNA
Entities.
(k)
“Services” means work performed by
Chordiant for Customer pursuant to a Statement of Work agreed to by
the parties under this Agreement.
(l)
“Software” means the software
referenced in a particular Order Form in object code form, which
consists of proprietary Chordiant software, and Third Party
Software and Open Source Code Software embedded therein, and the
media, Documentation and any Updates
thereto. Additionally, the Customer shall be provided
with certain source code elements of the proprietary Chordiant
software pursuant to Section 2.6 and may be provided with the
entire source code of the proprietary Chordiant software from the
Source Code escrow pursuant to Section 2.7, if appropriate.
(m)
“Support” means ongoing maintenance
and support services provided by Chordiant and/or CIGNA pursuant to
the terms of this Agreement as set forth on Exhibit A
hereto, and, if more favorable to Customer, Chordiant’s
current support policies. In any event, Chordiant shall
be responsible for providing Minor Release Updates, Major Release
Updates and Patch Updates as part of Support (and at no additional
charge) under its contract with IBM and/or this
Agreement.
(n)
“ Supported Program ” or “
Supported Software ” shall mean, at any
given time, the then-current release and the two immediately
preceding point releases from the current release of the
Software in use by any of the CIGNA Entities. For
example, if the most current release is 5.5, Chordiant must support
5.3, 5.4 and 5.5 or if the most current release is 6.1, then
Chordiant must support 5.9, 6.0 and 6.1 (and once the current
release is 6.2, then support 6.0, 6.1 and 6.2).
(o)
“Support Fee” means the support fee(s)
payable by Customer or a CIGNA Agent pursuant to Section 3, if any,
and as set forth in any particular Order Form. During
the term of Chordiant’s services contract with IBM, IBM will
pay Chordiant the Support Fee directly and Chordiant shall provide
Support through IBM. In the event that the contract
between IBM and Customer or the services agreement between IBM and
Chordiant terminates, then Chordiant shall provide Support at fees
consistent with the fees charged to IBM by Chordiant during the
term of the CIGNA and IBM services agreement. Upon
Customer’s request (subject to Customer having obtained
IBM’s consent), Chordiant shall make such pricing information
available to Customer; provided that such Support Fee may be
increased from the previous year’s Support Fee by the lesser
of 5% or the actual increase in the Consumer Price Index (CPI) for
the previous twelve (12) month period as published by the Wall
Street Journal.
(p)
“Support Hours” means the support
hours specified on Schedule A for either the Standard Support
period or the Premier Support period, as specified on the
particular Order Form.
(q)
“Support Period” means the period
during which Customer is entitled to receive Support on a Supported
Program, which shall be a period of twelve (12) months beginning
from the Delivery Date or, if applicable, twelve (12) months from
the expiration of the preceding Support Period unless otherwise
agreed in writing by the parties.
(r)
“Supported Environment” means the
application server or servers on which the Documentation states the
Software can operate.
(s)
“Third Party Software” means the
software of Sun Microsystems, Corticon Technologies, Inc.,
Desiderata Software and Flux Corporation which is embedded in the
Software and any other third party software embedded in the
Software.
(t)
“Update” means any new release,
version, enhancement, update, correction, patch, bug-fix or other
modifications (regardless of how characterized) to the Software
that are distributed, designed, developed or created by or for
Chordiant, but excluding any Customizations or
Additions. Chordiant shall provide such Major Release
Updates, Minor Release Updates and Patch Updates to Customer and/or
a CIGNA Agent at no additional fee at the same time as Chordiant
provides them to other users or licensees of the Software as and
when developed for general release. Additional
Documentation is provided for Major Release Updates and Minor
Release Updates. Such additional Documentation shall
contain a description of any Open Source Code Software contained in
the Update.
(i) “Major Release Update” shall mean
any subsequent release of the Software that is a numbered release
(ie, Chordiant 5 Foundation, or Chordiant 6
Foundation).
(ii) “Minor Release Update” shall mean
any subsequent release of the Software that is a dot-, numbered
release (ie, Chordiant 5.1 Foundation). All Minor
Release Updates shall be included in the next Major Release
Update.
(iii) “Patch Update” shall mean any
subsequent release of the Software that is a dot-, dot- numbered
release (ie, Chordiant 5.1.1 Foundation) and is typically a
patch. All Patch Updates shall be included in the next
Minor Release Update.
2. Software
License.
2.1 Rights
Granted.
(a) Chordiant hereby grants to the
CIGNA Entities a worldwide, irrevocable, perpetual, non-exclusive,
fully-paid, royalty-free, license to reproduce, use, modify,
enhance, perform, display, distribute and sublicense to CIGNA
Entities and/or CIGNA Agents, directly and indirectly, through one
or more tiers of sublicensees, and make derivative works of the
Software listed on Schedule A hereto (and any amendments to
Schedule A and any Order Forms subsequently entered into between
Customer and Chordiant) for use in connection with the business
operations of the CIGNA Entities.
(b) The license granted in this
Section 2.1 includes the object code version of the licensed
Software (including all Third Party Software) and includes all
Updates of the Software to be provided to Customer promptly upon
release. Additionally, the license includes certain source code
elements of the proprietary Chordiant software pursuant to Section
2.6 and may include the entire source code of the proprietary
Chordiant software from the Source Code escrow pursuant to Section
2.7, if appropriate.
(c) Customer shall have the right to
make such copies of the Software as Customer deems reasonably
necessary, including for back-up, testing, disaster recovery,
development or archival purposes. All titles, trademarks
and copyright or other restricted rights notices shall be
reproduced in any such copies.
(d) Customer shall have the right to
allow third parties to use the Software for the operations of the
CIGNA Entities (for example, third parties involved with disaster
recovery, the integration of the Software with the systems of CIGNA
Entities, development and production), so long as Customer is
responsible for use of the Software is in accordance with the terms
of this Agreement (unless the third party has a direct agreement
with Chordiant in which case CIGNA shall not be responsible and
Chordiant shall look to its agreement with such third
party).
(e) Notwithstanding anything contrary in this
Agreement, the CIGNA Entities and their agents, contractors and
third party service providers (and their affiliates and
subcontractors), wherever located, may access, use
, modify, enhance, create derivatives works of and
install the Software solely for the benefit of the business
operations of the CIGNA Entities. The Software may be
installed at the locations, facilities and systems owned or leased
by the CIGNA Entities and their agents, contractors and third party
service providers (and their affiliates and subcontractors) solely
for the benefit of the business operations of the CIGNA
Entities.
2.2 Restrictions
(a) Chordiant has obtained the right
for the CIGNA Entities to use any Sun Microsystems, Inc. software
or any other third party software that is embedded in the Software
in connection with any use of the Software as contemplated by
Section 2.1.
(b) Customer agrees not
to engineer, disassemble, de-compile, or any other
attempt to derive source code from the Software for which source
code was not provided pursuant to Section 2.6 or from the Third
Party Software, except to the extent required to obtain
interoperability with either independently created software or as
specified by law.
(c) Chordiant and its suppliers shall
retain all title, copyright and other proprietary rights in the
Software. Customer does not acquire any rights, express or implied,
in the Software, other than those specified in this Agreement.
Customer agrees that it shall not publish
any results of benchmark tests run on the Software, other than for
the internal use of the CIGNA Entities.
2.3 Transfer.
(a) Customer may use the
Software on any Supported Environment available as of the Effective
Date or thereafter without the payment of an additional license fee
so long as Customer’s usage of the Software does not exceed
the scope of the license it acquired for use.
(b) If Customer divests
part of its business or an Affiliate ceases to be an Affiliate (in
each instance the “Former Business”), Customer may
sublicense use of the Software, assign a designated number of
licenses to that Former Business or provide services to such Former
Business with respect to the use of the Software to the Former
Business; provided that the continued use of the Software by or for
the Former Business shall be considered a part of the underlying
license for the purpose of counting the Number of Concurrent Users
and the number of CPUs in use.
2.4
Verification. At Chordiant’s
written request, not more frequently than annually, Customer shall
furnish Chordiant with a signed certification verifying that the
Software is being used pursuant to the provisions of this Agreement
and applicable Order Form. Chordiant (or
Chordiant’s designee) may audit Customer's use of the
Software. Any such audit shall be conducted at
Chordiant’s cost and expense during regular business hours at
Customer's facilities and shall not unreasonably interfere with
Customer's business activities. Chordiant agrees that
its employees shall comply with Customer’s reasonable
security and confidentiality requirements during the
audit. If an audit reveals that Customer has underpaid
fees to Chordiant, Customer shall be invoiced directly for such
underpaid fees based on the rates set forth in the applicable Order
Form. Payment of such underpaid fees shall be
Chordiant’s sole and exclusive remedy in the event of an
underpayment by Customer.
2.5
Customizations and Additions.
Modifications, enhancements and derivatives works of the Software,
including certain software objects applicable to the business of
the CIGNA Entities, are referred to herein as
“Customizations”. Additions, bolt-ons or
other software that interacts or interfaces with the Software are
referred to herein as “Additions”. Any
Customizations made by Customer either directly or through their
third parties other than Chordiant shall be owned by Customer
(“Customer Customizations”). All right,
title and interest to any Customizations made by Chordiant on
behalf of Customer or CIGNA Agents, either directly or indirectly
(“Chordiant Customizations”), shall be owned by
Chordiant. Chordiant hereby grants Customer a license to
such Chordiant Customizations on the same terms and conditions as
those set forth in Section 2 pertaining to the originally licensed
Software, and such Chordiant Customizations shall be considered
licensed Software under this Agreement. Any Additions
shall be owned by Customer, and Chordiant hereby assigns all
rights, title and interests to such Additions to Customer
. To the extent that Customer desires
to have Chordiant incorporate such Customer Customizations or
Additions (collectively, “Customer Specific Objects”)
into Chordiant’s Software (and Chordiant agrees, in its sole
discretion, to incorporate such Customer Specific Objects),
Customer shall promptly deliver to Chordiant the source and object
code versions (including documentation) of such Customer Specific
Objects, and any updates or modifications thereto, and hereby
grants Chordiant a perpetual, irrevocable, worldwide, fully-paid,
royalty-free, non-exclusive, license to reproduce, modify, use,
perform, display, distribute and sublicense, directly and
indirectly, through one or more tiers of sublicensees, such
Customer Specific Objects (provided that any use by Chordiant shall
be on an “as-is” basis” at Chordiant’s sole
risk, with no obligation on the part of Customer to maintain or
support).
2.6 Additional Software
Restrictions.
(a) Customer
acknowledges that any Software licensed under this Agreement shall
primarily be in object code format. However, Customer
acknowledges that certain licensed Software may include source code
based files. Customer acknowledges that the Software,
its structure, organization and any human-readable versions of a
software program (“Source Code”) constitute valuable
trade secrets that belong to Chordiant and/or its
suppliers.
(b) To the extent that
Chordiant includes such Source Code within its Software, such
Source Code shall be deemed licensed Software under the terms of
this Agreement and the Order Form. Customer may modify
the Source Code in accordance with Section 2.5 and as Customer
otherwise deems necessary or useful in support of Customer’s
authorized use of the Software.
(c) Customer agrees that
it shall only disclose the Source Code to authorized employees of
CIGNA Entities and authorized third parties and contractors of
CIGNA Entities who (i) require access thereto for a purpose
authorized by this Agreement, and (ii) are subject to
confidentiality obligations to protect third party confidential
information.
(d) Customer shall
use the same degree of care is to prevent the unauthorized use,
dissemination, or publication of the source code (i.e., human
readable) of the Software (the “Source Code”) and the
Software as Customer uses to protect its own confidential
information of a like nature, but in no event shall the safeguards
for protecting such Source Code, and the Software be less than a
reasonably prudent business would exercise under similar
circumstances. Customer shall take prompt and
appropriate action in an effort to prevent unauthorized use or
disclosure of such Source Code and the Software, including, without
limitation, storing such Source Code only on secure central
processing units or networks and requiring passwords and other
reasonable physical controls on access to such Source
Code.
2.7
Source Code Escrow. Within 30 days of
the Effective Date Chordiant shall take such steps as are necessary
to enable Customer to obtain the Source Code that it not been
provided under the terms of the Escrow Agreement between Chordiant
and Iron Mountain Intellectual Property Management, Inc., as
successor-in-interest to Source File LLC, as Escrow Agent, a copy
of which has been provided to Customer, in the event that Chordiant
undergoes a change of control, assigns all or part of this
Agreement, enters into a voluntary or involuntary receivership
arrangement, bankruptcy or other insolvency proceedings, or
otherwise ceases to be in business or ceases to maintain or
otherwise support the Software for Customer. Chordiant shall not
cancel said agreement during the term of this Agreement without the
prior written consent of Customer. In the event that
during the term of this Agreement the Source Code is changed,
Chordiant shall provide updated Source Code and any supporting
documentation to the Escrow Agent. Customer's use of the
Source Code is limited to support and maintenance of the Software
and is otherwise subject to the terms of this
Agreement. Customer acknowledges that the Software
Source Code does not include the source code for the Third Party
Software.
3. Maintenance and
Support Services.
3.1
Maintenance and Support Services. If
annual Support services are purchased by IBM on behalf of Customer,
then such Support services shall be provided by Chordiant (through
IBM) to Customer pursuant to the terms of Chordiant’s
services agreement with IBM (which shall at a minimum include the
services and obligations set forth in this
Agreement). If annual Support services are purchased
directly by Customer, then such Support services shall be provided
by Chordiant to Customer under the terms of this Agreement or, if
more favorable to Customer, Chordiant’s support policies in
effect on the date Support is ordered by Customer.
For as long as Customer or a CIGNA Agent
notifies Chordiant that it wishes to purchase Support, Chordiant
shall offer to provide such Support. Notwithstanding the
foregoing, Chordiant shall provide Support under its agreement with
IBM for Customer for as long as the services agreement between
Chordiant and IBM is in place (or such longer period as support has
been paid for by IBM), and IBM has paid the then current Support
Fee. If, during the term of Customer’s services
agreement with IBM, IBM has not paid any undisputed Support Fees
within 60 days after the commencement of the then current renewal
Support Period, then Chordiant shall notify Customer in writing of
such failure. If Chordiant does not receive payment of
the then current undisputed Support Fee within 30 days following
receipt of notice to Customer, from either Customer or IBM, then
Chordiant, in its sole discretion, may either terminate the
provision of Support hereunder or agree with Customer to continue
to provide Support. Support is intended to ensure that
the Software operates in accordance with its Documentation on an
ongoing basis.
3.2 Update Policy
. Additionally, as part of Support, Chordiant shall
provide Customer with Updates, if and when such Updates made
available by Chordiant.
3.3
Reinstatement. Once Support has been
terminated in writing by Customer for a particular Supported
Program, it can be reinstated only if Customer pays a fee equal to
the Support Fees that would have been payable for the period of
time during which Support was terminated for such Supported
Program. All Support provided to IBM under the services
agreement shall count as if Customer had obtained the Support
itself (and no break in support shall have occurred).
4. Consulting
Services.
4.1
Consulting Services. In the event that
Chordiant provides Services directly for Customer, Chordiant shall
provide Services in accordance with a Statement of Work to be
mutually agreed to by Chordiant and Customer. Chordiant
shall charge Customer for Services performed pursuant to this
Agreement on a time and materials basis at the rates set forth in
the applicable Statement of Work. If a dollar limit is
stated in the applicable Statement of Work for time and materials
Services, the limit shall be deemed an estimate for
Customer’s budgeting and Chordiant’s resource
scheduling purposes; after the limit is expended, Chordiant shall
continue to provide the Services on a time and materials basis, if
requested by the Customer or as otherwise agreed to by the parties.
Customer shall reimburse Chordiant for pre-approved actual,
reasonable travel and lodging expenses incurred in conjunction with
the provision of Services in accordance with Chordiant’s or
Customer’s internal travel policy, as agreed upon by the
parties.
4.2 Representative. Chordiant shall
designate a Chordiant employee to oversee and direct
Chordiant’s Services (the “Chordiant Project
Manager”). Chordiant’s Project Manager shall
work at the direction of the Customer project
manager. Customer’s project manager shall be
completely responsible for the management and direction of the
Customer project. Chordiant may subcontract any portion
of the work to be performed under the Agreement.
4.3 Customer’s
Duties.
At no cost, Customer shall provide Chordiant with (a) adequate
access to Customer’s facility to perform all work required
under this Agreement; (b) all necessary safety training regarding
Customer’s facility, and (c) reasonable onsite facilities,
including secure storage space, a designated work area with
adequate heat and lighting, and access to any needed telephone
lines, communication facilities or other equipment.
4B. Intellectual Property
Rights.
4B.1 Rights to
Developments.
a. With regard to any
Customizations or Additions developed by Chordiant for Customer or
CIGNA Agents, either directly or indirectly, the provisions of
Section 2.5 shall apply.
b. With regard to other deliverables or work product
developed or provided by Chordiant for Customer or CIGNA Agents,
either directly or indirectly, subject to paragraph a
above,
i. to the extent that any of Chordiant’s
pre-existing intellectual property rights (“Chordiant
IP”) are embedded in any deliverable developed or provided by
Chordiant to Customer or CIGNA Agents or in any CIGNA owned or
licensed intellectual property (other than the Software), Chordiant
hereby grants to Customer an unlimited, worldwide, perpetual,
irrevocable, fully paid-up, nonexclusive, unlimited license to use
and sublicense, and to permit third parties to use, the Chordiant
Intellectual Property that is incorporated or embedded in any such
deliverable or intellectual property for so long as such Chordiant
IP remains embedded or incorporated in such deliverable or
intellectual property and is not separately commercially exploited
by Customer.
ii. Chordiant shall own all modifications and
enhancements to, and derivatives of, Chordiant IP that are
developed by Chordiant during the provision of any Services
(collectively, “Chordiant New Intellectual
Property”). Chordiant hereby grants to Customer an
unlimited, worldwide, perpetual, irrevocable, fully paid-up license
to use (and allow Customer’s agents and third parties to use)
any Chordiant New Intellectual Property.
iii. Subject to the foregoing ownership and assignment
rights set forth in this Section 4B.1, which take precedent over
this subparagraph iii, Customer shall own, and Chordiant hereby
perpetually assigns to Customer, all rights, title and interests in
work product that are developed or provided by Supplier in
connection with the provision of any Supplier
Services.
c. Notwithstanding the foregoing, nothing in this Section 4B.1
shall expand the original scope of license of the Software set
forth in Section 2 above.
d. Chordiant shall enter into an agreement with IBM that
is consistent with and effectuate the terms of this Section 4B.1
and that shall not create any broader rights; provided that
Chordiant may agree to assign all right, title and interest in work
product or deliverables which are modifications and enhancements
to, or derivative works of, IBM’s pre-existing intellectual
property.
4B.2 Chordiant’s
Duties.
All current and future employees and agents of and consultants to
Chordiant with access to or involved in the performance of Services
have executed and delivered or shall execute and deliver to
Chordiant a proprietary rights agreement with Chordiant
substantially consistent with the form attached as Exhibit C
hereto pursuant to which such employee or consultant agrees to
confidentiality and intellectual property assignment terms
sufficient to enable Chordiant to meet its obligations to Customer
under this Agreement.
5. Term and
Termination.
5.1
Term. This Agreement shall be
terminated under this Section 5
(“Term and Termination”) or as otherwise specified in
the applicable Order Form. Notwithstanding any
termination of this Agreement, all software licenses are
irrevocable and perpetual.
5.2
Termination by Customer. Customer may
terminate any Software license at any time; however, termination
shall not relieve Customer’s obligations specified in
Section 5.4 (“Effect of
Termination”).
5.3
Termination by Chordiant. Chordiant
may terminate this Agreement upon written notice if Customer
materially breaches this Agreement and fails to correct the breach
within 30 days following written notice specifying the breach;
provided that any license previously licensed hereunder shall
remain in effect during the term provided for in the license grant,
and Section 2 shall survive termination of the Agreement in
addition to the provisions of Section 5.4 for the duration of such
term.
5.4
Effect of Termination. Termination of
this Agreement or any license shall not limit either party from
pursuing other remedies available to it, including injunctive
relief, nor shall such termination relieve Customer’s
obligation to pay all fees that have accrued under any Order Form
or Statement of Work. The parties’ rights and
obligations under Sections 2.2 and 2.6
(“Restrictions”) , 5
(“Term and Termination”), 6
(“Indemnity, Warranties, Remedies”),
7 (“Limitation of
Liability”), 8
(“Payment Provisions”),
9 (“Confidentiality”) and
10 (“Miscellaneous”)
shall survive termination. Except for termination
pursuant to Section 5.3, upon termination, Customer shall cease
using, and shall return or destroy as directed by Chordiant, all
copies of the Software and Documentation.
6. Indemnity,
Warranties, Remedies
6.1
Infringement Indemnity. Chordiant
shall defend and indemnify the CIGNA Entities against a third party
claim arising from (a) the Software (including Updates and any
Contract Property) the Documentation or the Services infringing any
third party’s intellectual property rights provided that:
(i) Customer promptly notifies Chordiant in writing of the
claim; (ii) Chordiant has sole control of the defense and all
related settlement negotiations (provided that Customer may
participate in the defense at its own cost); and
(iii) Customer provides Chordiant with the assistance,
information and authority necessary to perform Chordiant’s
obligations under this Section 6, (b) any
third party software embedded in the Software and (c) and any use
by Chordiant or third parties under the license granted to
Chordiant under Section 2.5
Chordiant shall have no liability for any claim of infringement
based on use of a superseded or altered release of Software if
Chordiant notified Customer that the infringement would have been
avoided by the use of a current unaltered release of the Software
which Chordiant makes available to Customer and Chordiant pays the
cost of implementing the new release.
If a third party claim results in preventing Customer from using
the Software or if Chordiant, in its reasonable opinion, believes
that the Software is likely to be held as infringing, Chordiant
shall have the option, at its expense, to (i) modify the
Software to be non-infringing, or (ii) obtain for Customer a
license to continue usin
