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Software Maintenance and Support Agreement

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CHORDIANT SOFTWARE INC | Citicorp Credit Services, Inc

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Governing Law: New York     Date: 2/9/2007
Industry: Software and Programming    

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Exhibit 10.49








Commencement Date:

February 1, 2006






Chordiant Software, Inc.

Citicorp Credit Services, Inc. (USA)


20400 Stevens Creek Blvd.

Cupertino, CA 95014

14000 Citi Cards Way

Jacksonville, FL 32258

State of Incorporation:





IN CONSIDERATION of   the mutual covenants and undertakings contained herein, and intending to be legally bound, Licensor and Licensee (as designated above) agree as follows.





1.1   Specific Words or Phrases. For purposes of this Agreement, each word or phrase listed below shall have the meaning designated. Other words or phrases used in this Agreement may be defined in the context in which they are used, and shall have the respective meaning there designated.




Affiliate ” means and includes any entity that directly or indirectly controls, is controlled by, or is under common control with Licensee, where “control” means the ownership of, or the power to vote, at least twenty percent (20%) of the voting stock, shares or interests of such entity. An entity that otherwise qualifies under this definition will be included within the meaning of “Affiliate” even though it qualifies after the execution of this Agreement.


Agreement ” means the terms of this Master Software License & Support Agreement (sometimes referred to as “Master Agreement”), together with the appendices and other exhibits attached hereto or incorporated herein by reference; provided, however, that for each particular License Schedule, reference to “Agreement” shall be construed solely as a reference to the agreement that arises as a result of the execution of the License Schedule, which agreement shall be a two party agreement between Licensor and the specific entity (either the entity designated above as “Licensee” or an Affiliate) that executes the License Schedule.


Defect ” means a defect, failure, malfunction, or nonconformity in the Software that prevents the Software from operating in accordance with [*].


“Deliver” and “Delivered” and “Delivery” mean delivery of the Software by Licensor to the Delivery Site specified in the applicable License Schedule.


Documentation ” means all documents and materials (in any language, format or medium) that are normally supplied by Licensor to its commercial licensees to aid in the use and operation of the Software, and all modifications to such documents or materials that are made by or on behalf of Licensor from time to time (provided such modifications do not diminish the performance or operational capabilities of the Software), including: (i) functional, technical, design and performance specifications and (ii) installation, configuration, administration, operation and maintenance procedures and instructions, and (iii) training guides and user manuals.


" Intellectual Property Rights " means all trade secrets, patents and patent applications, trade marks (whether registered or unregistered and including any goodwill acquired in such trade marks), service marks, trade names, business names, internet domain names, e-mail address names, copyrights (including rights in computer software), moral rights, database rights, design rights, rights in know-how, rights in confidential information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, and any application for the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.


“License” means a license to use the Software granted pursuant to the terms and conditions of a License Schedule.


" Licensee " means, for the general purposes of the Master Agreement, the entity designated above as “Licensee”. However, for the particular purposes of any agreement that arises as a result of a License Schedule, reference to “Licensee” shall be construed solely as a reference to the specific entity (either the entity designated above as “Licensee” or an Affiliate) that executes the License Schedule.


License Schedule ” means a transactional document that is submitted pursuant to this Master Agreement by either the entity designated above as “Licensee” or any Affiliate, and describes the Software and services to be provided by Licensor to such Licensee / Affiliate.


Maintenance Services ” consists of the support and maintenance services to be provided by Licensor in accordance with the requirements set forth or referenced in Section 11 and Appendix B .


Party ” means either the “Licensor” or “Licensee”, individually as the context so requires; and “ Parties ” means the “Licensor” and “Licensee”, collectively.


Personnel ” means and includes a Party’s or an Affiliate’s directors, officers, employees, agents, auditors, consultants and subcontractors.


" Software " means the computer programs made available to Licensee and the Affiliates by Licensor under this Master Agreement, including any customizations, enhancements, updates, upgrades, releases, Defect corrections, and other modifications thereto provided to Licensee by Licensor, together with the related Documentation.


Source Code ” means and includes human-readable computer programming code, associated procedural code, listings, flow charts, logic diagrams, software tools, executables, libraries, scripts and related and supporting documentation corresponding to the Software and all subsequent versions (including assembly, linkage and other utilities), suitable and sufficient to enable a person possessing reasonable skill and expertise in computer software and information technology (i) to build, load, and operate a machine-executable object code version of the Software that is equivalent to the latest version of the Software furnished by Licensor, and (ii) to maintain, support, modify, improve and enhance the Software.


" Specifications " means and includes: (i) the standard published specifications for the Software (including both Licensor's proprietary software and all third-party software that is embedded into, or otherwise furnished by Licensor with the Software); and (ii) any additional written description of the functional, technical, design and performance characteristics of the Software attached to or referenced in a License Schedule.


1.2   Common Words. The following words shall be interpreted as designated: (i) “or” connotes any combination of all or any of the items listed; (ii) where “including” is used to refer to an example or begins a list of items, such example or items shall not be exclusive; and, (iii) “specified” requires that an express statement is contained in the relevant document.





2.1   Term. This Master Agreement shall commence as of the Commencement Date designated above, and shall continue in effect thereafter unless superceded or otherwise terminated by agreement of the Parties. Each License Schedule shall only become effective when duly signed on behalf of the Parties to be bound thereby, and shall continue in effect through the earlier of: (i) the expiration date for the Licenses granted thereunder, or (ii) the date of termination specified by either Party in accordance with the provisions hereof. For the avoidance of doubt, the termination of the Master Agreement shall not result in the termination of any License Schedule, each License Schedule being terminable only in accordance with its own provisions.


2.2   Termination for Cause. If either Party breaches a material obligation under a License Schedule and fails to cure such breach within thirty (30) days from the date it receives from the non-breaching Party a notice of the breach and a demand for cure, then the non-breaching Party may thereafter terminate the applicable License Schedule immediately on notice. Notice of termination for any License Schedule shall not be construed to be notice of termination for any other License Schedule.


2.3   Orderly Transfer. Upon the termination of a License Schedule for any reason whatsoever (including a default by either Party), Licensor will provide such information, cooperation and assistance to Licensee, as Licensee may reasonably request, to assure an orderly return or transfer to Licensee or Licensee’s designee of all proprietary data (and related records and files) and materials of Licensee in their then current condition. Upon termination of a License Schedule by Licensor pursuant to Section 2.2, and except as otherwise provided herein or in such License Schedule, Licensee will return all copies of the Software under such License Schedule to Licensor or destroy all copies of the Software under such License Schedule and, if requested by Licensor, provide Licensor with a certificate signed by a duly authorized representative of Licensee attesting to such destruction with thirty (30) days of the effective date of termination.


2.4   Retention of Archival Copy. If Licensee’s right to use any Software is terminated for any reason whatsoever, then Licensee shall nevertheless be entitled to retain copies of the Software and Documentation for archival purposes and to satisfy Licensee’s obligations under all applicable laws.




3.1    Obligation to License. This Master Agreement does not by itself commit Licensee or any Affiliate to license any software from Licensor. Rather, this Master Agreement merely sets forth the terms and conditions that will govern the licensing of Licensor’s Software (as listed in Licensor’s then current price list) to Licensee or an Affiliate as a result of the execution of a License Schedule by Licensor and Licensee or an Affiliate.


3.2    License Schedule. License Schedules may be entered under this Master Agreement by either the entity designated above as “Licensee” or any Affiliate. The entity that executes a License Schedule with Licensor shall be considered the “Licensee” for all purposes of the License Schedule; and the License Schedule shall be considered a two party agreement between Licensor and such entity. Each License Schedule shall be substantially in the form of Appendix A , shall incorporate by reference the provisions of this Master Agreement as though such provisions were set forth therein in their entirety, and shall set forth: (i) a description of the Software to be licensed, (ii) the fees to be paid by Licensee for the Software License and the related Maintenance Services, and, (iii) such additional terms and conditions as may be mutually agreed upon by Licensor and the respective “Licensee”. Each License Schedule shall be deemed to incorporate the applicable Specifications for the Software that are in effect on the date the License Schedule is executed by the “Licensee”. In no event shall any shrinkwrap or any clickwrap (or other electronic agreement) constitute a License Schedule or binding agreement hereunder, even if a user or authorized officer of Licensee or an Affiliate purports to have affirmatively accepted such terms.


3.3   Changes to License Schedule. Reserved


3.4   Divested Entities.   If control of an entity, or a division or department within an entity, that is included within the definition of “Licensee” or an “Affiliate” is sold or otherwise transferred to one or more unrelated third parties, such entity, division or department (“Divested Entity”) shall nevertheless continue to have a right to acquire Software licenses pursuant to this Master Agreement (exclusive of any pricing or discount terms for the purchase of additional licenses set forth on a License Schedule) for [*] after the effective date of such transfer at a price no greater than the prices set forth in Licensor’s then current published product price list or such other price as is negotiated between Licensor and the Divested Entity.


3.5   Evaluation License. Reserved.




4.1   Delivery and Installation . Licensor will Deliver the Software and Documentation to the Delivery location, on or before the Delivery date, as specified in the applicable License Schedule or as otherwise agreed to by the Parties and confirmed in writing. If a Delivery date is not specified on the License Schedule, then the scheduled Delivery date shall be the date that is mutually agreed to by the Parties and confirmed in writing. Licensee is responsible for the Software installation. .


4.2   Installation by Licensee. If Licensee is responsible for installing the Software, then Licensor will provide written instructions and such other assistance as Licensee may reasonably require to complete the installation at mutually agreed upon time and materials rates; provided that such assistance is not already provided as part of Maintenance Services.


5.   [*]




6.1    Proprietary Rights to Software . As between Licensor and Licensee, Licensor shall be deemed to own the Intellectual Property Rights in or to the Software; and nothing contained in this Agreement shall be construed to convey any Intellectual Property Rights in or to the Software to Licensee (or to any party claiming through Licensee) other than the license rights expressly set forth in this Master Agreement and in the applicable License Schedule.


6.2    Type of License. Each License granted by Licensor pursuant to this Agreement shall be a fully paid up, non-exclusive, irrevocable, perpetual (except as set forth in Section 2 above) [*] license to use the Software in the furtherance of Licensee’s or its Affiliates’ business purposes, subject only to such use restrictions as may be specifically set forth on the applicable License Schedule, including without limitation geographic restrictions and restrictions on the number or location of the computers or the users. Unless otherwise expressly set forth on the applicable License Schedule, each License shall also entitle authorized users (as designated in Section 6.3 ) to access and use the Software, or applications developed using the Software, in connection with, through or on any associated or interconnected networks (including internet or intranet) without payment of any additional fees.


6.3    Authorized Users. Unless otherwise specifically set forth on the applicable License Schedule, each License granted pursuant to this Master Agreement shall include the right for Licensee to permit the Software to be used by or on behalf of: (i) Affiliates (ii) third parties engaged by Licensee to conduct all or any portion of Licensee's or an Affiliate’s information processing, programming, network services, disaster, back up, or recovery services, and (ii) consultants and clients of Licensee or an Affiliate, provided that such usage by consultants and clients must be considered part of the business of Licensee or an Affiliate . Licensee will be fully responsible for all acts and omissions of its third parties, consultants and clients regarding the Software. If Software was acquired, or is being used by or on behalf of a Divested Entity, so that the Divested Entity is the “Licensee” from an operating perspective (whether the acquisition occurred prior or subsequent to the change in status), then the Divested Entity will continue to enjoy its status as the Licensee for up to [*] after its change of status, provided (i) the Divested Entity is the legal entity that submitted the applicable License Schedule or received an assignment thereof, or (ii) the legal entity assuming control of the Divested Entity agrees in writing to be bound by the terms and conditions of the License.


6.4   Installation Transfers . If a License is subject to restrictions on the number or locations of the computer on which the Software may be installed, Licensee shall nevertheless be entitled (at no additional charge) to transfer the Software (subject to such use restrictions): (i) from one computer to another; (ii) from one installation site to another [*]. Licensee will provide Licensor with notice following any such transfer.


6.5   Reproductions. Licensee may reproduce the Software as Licensee may reasonably deem necessary to satisfy the requirements of Licensee and its Affiliates within the scope of the applicable License (including reproducing the Software for backup and archival purposes). All reproductions shall include any copyright or other proprietary notices contained on the originals.


6.6    Substitute Equipment and Parallel/Transition Processing . Each License includes (at no additional charge) the right to install and use the Software on temporary substitute or back-up equipment. If Licensee (i) relocates the installation site, (ii) acquires additional equipment (including replacement equipment), (iii) acquires an entity or business that Licensee elects to transition to the use of the Software, or (iv) divests an entity or business that has been using the Software, Licensee will be entitled (at no additional charge) to use a duplicate copy of the Software to conduct parallel and transition processing during the time required (up to [*] months) to accomplish and facilitate such relocation, transition, acquisition or divestiture.


6.7   Disaster Recovery . Each License includes the right (at no additional charge) to have the Software tested periodically for viability at any Licensee location or at a location of a third-party engaged by Licensee to provide disaster recovery, contingency or business continuity services for Licensee. If a third party performs such tests, Licensee will require such third party to be bound by written agreement to treat the Software as confidential information. Licensee will also be entitled to make and keep copies of Software and its Documentation at a separate facility for backup (including hot back up), archival and emergency purposes.


6.8    Replacement Version of Software . If Licensee changes or upgrades the operating system, or replaces or modifies the equipment on which Licensee operates the Software, then Licensor will (at no additional charge) provide to Licensee a version of the Software compatible with such changed operating system, or replaced or modified equipment provided that (i) Licensor has developed as of the Commencement Date and is then currently maintaining, such a version that is substantially similar to the version originally licensed as to features, functionality and price, (ii) Licensee is then entitled to receive Maintenance Services, and (iii) in using such additional version of the Software, Licensee does not exceed the scope of its license with Licensor (i.e., the aggregate number of CPU and user licenses used on all versions of the Software in the aggregate does not exceed the total number of CPU and user licenses originally licensed by Licensee.)


6.9   Restrictions. Except to the extent authorized or permitted in this Agreement or by applicable law without the possibility of contractual waiver, Licensee shall not: (i) copy, transfer or distribute the Software (electronically or otherwise); (ii) reverse assemble, reverse engineer, reverse compile, or otherwise translate the Software; or (iii) sublicense or assign the license for the Software.




7.1   Escrow Arrangement . If Source Code for the Software is not being Delivered to Licensee directly by Licensor as part of the License, then (at Licensee’s request) within ten (10) days of the execution of the License Schedule for such Software, Licensor will deposit a current copy of the Source Code with an independent and qualified escrow agent acceptable to Licensee. Throughout the term of the License, Licensor will keep the Source Code complete and current by Delivering to the escrow agent any and all changes to the Source Code for all related modifications, within thirty (30) days after the modifications are made available to Licensee. The escrow agent will maintain the Source Code pursuant to an escrow agreement in a form and with terms acceptable to Licensee. Licensor shall ensure that the Escrow Agent is obligated to notify Licensee in writing promptly upon receipt of the deposit of such Source Code, or, where such Source Code has already been deposited pursuant to a pre-existing source code escrow arrangement, upon receipt of notice from the Licensor that Licensee is now a beneficiary of such escrow arrangement, in each case indicating in such notice to Licensee that such Source Code has been deposited as required. The escrow agreement shall designate Licensee as a third party beneficiary, and entitle Licensee to inspect, test and review the Source Code promptly upon request. The escrow agreement shall also require the escrow agent to release and Deliver the Source Code to Licensee upon certification from Licensee that any one of the following circumstances has occurred.



Licensor (i) files a voluntary petition in bankruptcy, (ii) makes a general assignment for the benefit of its creditors, (iii) suffers or permits the appointment of a trustee or receiver for its business assets, (iv) becomes subject to any proceeding under any bankruptcy or insolvency law which is either consented to by Licensor or is not dismissed within sixty (60) days, (v) initiates actions to wind up or liquidate its business voluntarily or otherwise, (vi) ceases doing business in the ordinary course, or (vii) suffers, permits or initiates the occurrence of anything analogous to any of the events described in this Subsection under the laws of any applicable jurisdiction.









Licensor refuses or becomes unable to provide maintenance and support services to Licensee at any time while Licensee is continuing to use the Software in accordance with the provisions of the License granted pursuant to this Agreement, provided that Licensee is not in default of any material obligation assumed under this Agreement.


A copy of the fully executed escrow agreement shall be attached to this Agreement or the applicable License Schedule as Exhibit 1 .


7.2   License. If Source Code for Software is Delivered to Licensee (either directly by Licensor or by an escrow agent in fulfillment of its obligations under an applicable escrow agreement), then the Source Code will be subject to the License for the applicable Software. Each such License shall entitle Licensee to use and modify the Source Code and the Software, as reasonably necessary, in order to: (i) integrate the Software with Licensee’s other systems and programs; (ii) cause the Software to comply with changes in applicable laws, regulations, industry standards or market practice; (iii) enable the Software to remain current with technological innovations; and (iv) enable the Software to fulfill Licensee’s business purposes within the scope of the License granted pursuant to the terms and condition of this Agreement. Any modified versions of the Software resulting from Licensee’s use of the Source Code shall be subject to all the terms and conditions of this Agreement; provided, however, that if Licensee obtains the right to use the Source Code pursuant to Section 7.1 , then Licensor shall have no rights, title or interest in or to any modifications made to the Software or the Source Code by or on behalf of Licensee, and all Intellectual Property Rights in and to any such modifications shall vest exclusively in Licensee.





Documentation. On or before the date the Software is Delivered, Licensor will (at no additional charge) Deliver to Licensee at least one (1) electronic and one (1) printed form copy of all generally available Documentation for the Software. The Documentation shall be sufficient to enable Licensee’s Personnel to use and to understand the use and operation of the Software, and shall conform to generally accepted industry standards for the use, operation and internal operating logic of software. Throughout the warranty period or the term of any maintenance service agreement, Licensor will provide copies of any revisions, improvements, enhancements, modifications and updates to the Documentation, at no additional cost. Licensee may make a reasonable number of copies of the Documentation for Licensee’s use, provided Licensee reproduces copyright notices and any other legends of ownership on each copy.  



Training.     Reserved




9.1    Fees and Discounts. The License fees and all other charges to be paid by Licensee for the Software or services provided by Licensor pursuant to this Agreement shall be set forth on the applicable License Schedule.


9.2    Pricing Adjustments. During the term of this Master Agreement, Licensor will not increase its list prices for Maintenance Services provided to Licensee or an Affiliate by more than the lesser of: (i) the amount by which Licensor increased the comparable fees or charges for its other commercial customers; (ii) five percent (5%) for each twelve (12) month period; and (iii) the percentage rate of increase in the CPI (all items) for Urban Wage Earners and Clerical Workers from the preceding calendar year as determined by the United States Bureau of Labor Statistics.


9.3   Taxes. Licensor may invoice Licensee for sales and use taxes properly levied against or upon (i) the furnishing of the Software and any related services to Licensee by Licensor pursuant to this Agreement, or (ii) the use thereof by Licensee. However, Licensee shall not be obligated to pay any penalties, interest, or late charges imposed as a result of Licensor's failure to remit such taxes to the taxing authority on a timely basis. In addition, if Licensor fails to provide Licensee with timely notice of any tax audit that could result in an increase in the amount of sales or use taxes assessed hereunder, then Licensee shall not be required to pay any additional taxes assessed as a result of such audit. Licensor shall be solely responsible for the payment of all other taxes, including personal property taxes, franchise taxes, corporate excise or corporate privilege, property or license taxes, all taxes relating to Licensor’s Personnel, and all taxes based on the net income or gross revenues of Licensor.


9.4   Reimbursable Expenses. To the extent applicable, Licensor will only be reimbursed for expenses that are reasonable, warranted and cost effective, and that have been approved in advance by Licensee. For each item of expense for which reimbursement is requested, Licensor will submit substantiating documentation in accordance with Licensee’s policies. All approved business expenses and pass-through charges will be reimbursed at cost (as actually incurred), without mark-up.


9.5   Terms of Payment . No amount arising under this Agreement shall be due from Licensee prior to Licensee’s receipt of a fully executed copy of this Agreement and the applicable License Schedule, and Licensee’s receipt of an invoice: (i) referencing this Agreement and the applicable License Schedule; (ii) separately itemizing the charges for the Software, services or other items covered therein, and setting forth, in reasonable detail, the basis for the charges; and (iii) including, in the case of any reimbursable expenses or other charges (including taxes), receipts or other documentation acceptable to Licensee. Unless otherwise specified on a License Schedule, Licensor may invoice Licensee for the License fee on the date the Software has been Delivered by Licensor. Licensor may invoice Licensee for the Maintenance Service fees for the initial Maintenance Service term on the date the Software has been Delivered by Licensor. Maintenance Service fees for renewal terms may be invoiced not more than sixty (60) days prior to the effective date of renewal. Such Maintenance Service fees shall be set forth on a License Schedule as a percentage of the net License fees paid by Licensee thereunder. Licensor may invoice Licensee for any other charges payable under this Agreement after the occurrence of the event giving rise to the payment obligation underlying the invoice. All invoices shall be submitted to Licensee at the billing address designated on the applicable License Schedule. Each properly and accurately prepared invoice shall be payable within [*] days after its receipt by Licensee. Licensee will not be liable for interest or other late fees on past due invoices. Licensor specifically covenants that it will not use any methods of electronic repossession for any reason. All payments made by Customer shall be in U.S. Dollars and directed to:


Chordiant Software Inc.


San Jose, CA 95161-[*]


Or wire to:

Comerica Bank

Chordiant Software, Inc.

Account#: [*]

Routing #: [*]


9.6   D isputed Invoices . Licensee may withhold payments for any item(s) on Licensor's invoice that Licensee reasonably disputes in good faith.  Licensee shall provide to Licensor written notice of its intention to withhold payment, including the reason(s) for Licensee's reasonable dispute of the invoice (the “Dispute Notice”).  Following receipt of the Dispute Notice, Licensor shall review the invoice in question and, if appropriate, send Licensee a corrected invoice.  If Licensor does not agree with Licensee's reasons for withholding payment or, if sent, the corrected invoice does not resolve the dispute to Licensee's satisfaction, then either party shall notify in writing the other party of the fact that the dispute continues (the “Response Notice”).


The parties shall use commercially reasonably efforts to resolve or settle the dispute within ninety (90) days from the date of the Response Notice. Within thirty (30) days from the date of receipt of the Response Notice, executives of both companies shall first meet in person to negotiate in good faith a resolution or settlement of the dispute. Licensor’s executive(s) shall be at the President or CEO level, and Licensee’s executive(s) shall be either the CIO of Citigroup N.A. Consumer Group or senior executive(s) designated by such person.


Pending settlement or resolution of the issue(s), Licensee's non-payment of these items shall not constitute default by Licensee, and shall not entitle Licensor to suspend or delay its furnishing of the Software or performance of services for a period of [*] from the end of the ninety (90) day period of executive conferences; provided that Licensee continues to pay all undisputed invoices in accordance with the provisions of Section 9.5.   After expiration of such [*] period, Licensor may suspend its furnishing of Software or performance of services covered by the disputed item(s).


9.7   Transaction   Information. For three years after an invoice has been paid, Licensor will maintain and (upon Licensee's reasonable request) will make available the records necessary to substantiate the correctness of such invoice. In addition, if requested by Licensee, Licensor shall make available to Licensee detailed transactional information related to products and services that have been acquired by Licensee and the Affiliates under this Agreement. The transactional information will be provided by Licensor in an electronic data format specified by Licensee provided such format is supported by Licensor and will include: (i) standard invoice and product attributes contained in Licensor’s systems, and (ii) sufficient details to allow Licensee and its Affiliates to link the invoice and product attributes to invoice payment.




10.1   Authority and Non-Infringement. Licensor represents and warrants that Licensor has all rights and authority required to enter into this Agreement and each License Schedule, and to provide the Software and perform the services contemplated by this Agreement, free from all liens, claims, encumbrances, security interests and other restrictions. Subject to the applicable terms and conditions of this Agreement and the applicable License Schedule, Licensee and Affiliates will be entitled to use and enjoy the benefit of all Software and services without adverse interruption or disturbance by Licensor or any entity asserting a claim under or through Licensor. Licensor further represents and warrants that the services, Software and all other materials of whatsoever nature furnished under this Agreement, and the use thereof by Licensee or the Affiliates in accordance with the terms and conditions of this Agreement, will not infringe (whether directly, contributorily, by inducement or otherwise), misappropriate or violate the Intellectual Property Rights of any third party, or violate the laws, regulations or orders of any governmental or judicial authority. The sole and exclusive remedy for a breach of the warranty against infringement contained in this Section 10.1 is infringement indemnity set forth in Section 14.


10.2    Personal Dealing and Non-Subornation. Licensor warrants that no officer, director, employee of Licensee, or any of their immediate family members, (i) has received or will receive anything of value of any kind from Licensor or its Personnel in connection with this Agreement, or (ii) has a business relationship of any kind with Licensor or its Personnel. Licensor further warrants that Licensor has not and will not make (or offer to make) any payments to, or confer (or offer to confer) any benefit upon, any employee, agent or fiduciary of any third party, with the intent to influence the conduct of such employee, agent or fiduciary in any manner relating to the subject of this Agreement.


10.3   Conformity to Specifications. Licensor warrants that at the time of Delivery, and thereafter throughout the applicable warranty period, the Software will conform to [*]. If not specified by the Parties on the License Schedule, the warranty period for purposes of Software performance shall be the ninety (90) days period commencing from the date that the Software is Delivered In addition, the warranty period for the Software will be extended by the aggregate time Licensee is unable to effectively use the Software during the specified warranty period as a result of a Defect. If Licensor receives notice of a Software Defect during the warranty period, then Licensor will (at no additional charge) correct the Defect. If (through no fault of Licensee) Licensor is unable or unwilling to correct a Defect that has been identified by Licensee during the warranty period, then Licensee may terminate the applicable License Schedule (in whole or in part) upon notice to Licensor, without financial liability or obligation (for the portion terminated).


10.4   Documentation. Licensor represents and warrants that the Documentation provided by Licensor will fully and accurately reflect the functionality of the applicable Software.


10.5   Standard of Service. Licensor warrants that all services provided by Licensor pursuant to this Agreement will be performed in a timely and professional manner, in conformity with standards generally accepted in the Software industry, by qualified and skilled individuals. If Licensor fails to provide the services as warranted and Licensee so notifies Licensor within thirty (30) days after the date Licensor declares the services to have been completed, then Licensor will re-perform the services at no additional charge. Licensor further warrants that its Personnel will provide services with a minimal amount of interference to Licensee’s normal business operations and subject to Licensee’s security and work place policies and procedures.


10.6   Disabling Devices. Licensor represents and warrants that prior to Delivering the Software to Licensee, Licensor will test the Software and the media on which it is to be Delivered with a current version of a leading anti-virus application in efforts to detect, and if so detected, to eliminate, any computer code (sometimes referred to as “viruses” or “worms”) designed to damage, disrupt, disable, harm, or otherwise impede in any manner, the orderly operation of the Software or any other software, data files, firmware, hardware, computer system or network. Licensor further represents and warrants that the Software (and all other software Delivered or installed by Licensor) shall not contain any computer code or any other procedures, routines or mechanisms designed by Licensor (or its Personnel or licensors) to: (i) disrupt, disable, harm or impair in any way the Software’s (or any other software’s) orderly operation based on the elapsing of a period of time, exceeding an authorized number of copies, advancement to a particular date or other numeral (sometimes referred to as “time bombs”, “time locks”, or “drop dead” devices); (ii) cause the Software to damage or corrupt any of Licensee’s, its Affiliates’, or their respective customers’ data, storage media, programs, equipment or communications, or otherwise interfere with Licensee’s or its Affiliates’ operations, or (iii) permit Licensor, its Personnel, its licensors or any other third party, to access the Software (or any other software or Licensee’s or its Affiliates’ computer systems) for any reason (sometimes referred to as “traps”, “access codes” or “trap door” devices). Licensor will not unilaterally ( i.e. , without appropriate judicial order) remove, deinstall, repossess, modify, delete, damage, deactivate, disable, or interfere with the Software for any reason (including a dispute relating to this Agreement).


10.7   Availability of Maintenance . Reserved.


10.8   Favorable Provisions. Reserved .






For a minimum period of [*] years commencing from the date of Delivery of the Software, Licensor will make Maintenance Services available for the Software on terms at least as comprehensive as those set forth in Appendix B. The initial annual period for Maintenance Services shall commence on the date of Delivery of the Software. Except as may other be provided for in a License Schedule, the fee for annual Maintenance Services is due and payable upon the Delivery of the Software. Beginning on the first anniversary of the date of the Delivery of the Software, such Maintenance Services shall be provided on an automatic, annual renewable term basis, at Licensee’s election and subject to Licensee’s payment of the applicable Maintenance Services fee. Licensee will be entitled to terminate the Maintenance Services at any time, for its convenience, by providing Licensor with no less than ninety (90) days prior notice of termination; and in the event of such termination, Licensee shall be entitled to recover any unused portion of the pre-paid Maintenance Service fees, pro rated on a fiscal calendar quarterly basis. For the avoidance of doubt, nothing contained in this Section shall be construed to restrict Licensee’s right to access and use the Source Code pursuant to Subsection 7.1.4 in the event that Licensor refuses or becomes unable to provide maintenance and support services to Licensee for the Software during or after the [*] year period specified above.





12.1   Licensor’s Confidential Information. Licensor’s “Confidential Information” means and refers to the Software, Documentation, and all other materials furnished by Licensor that are expressly identified or marked by Licensor as “confidential” at the time of their Delivery to Licensee.


12.2   Licensee’s “Confidential Information”. Licensee’s “Confidential Information” means and refers to all tangible or intangible information and materials, in any form or medium (and without regard to whether the information or materials are owned by Licensee or by a third party), whether furnished or disclosed to Licensor by Licensee or an Affiliate, or otherwise obtained, accessed or observed by Licensor from Licensee or an Affiliate, that satisfies at least one of the following criteria:



Information or materials related to Licensee’s, an Affiliates’, or any of their respective customer’s business, trade secrets, customers (including identities, characteristics and activities), business plans, strategies, forecasts or forecast assumptions, operations, methods of doing business, records, finances, assets, technology (including software, data bases, data processing or communications networking systems), data or information or materials that reveal research, technology, practices, procedures, processes, methodologies, know how, or other systems or controls by which Licensee’s or an Affiliate’s products, services, applications and methods of operations or doing business are developed, conducted or operated, and all information or materials derived therefrom or based thereon;


Information or materials designated or identified as confidential by Licensee or an Affiliate, whether by letter or by an appropriate proprietary stamp or legend, prior to or at the time such information or materials are disclosed by Licensee or an Affiliate to Licensor;



Information disclosed orally or visually, or written or other form of tangible information or materials without an appropriate letter, proprietary stamp or legend, if it would be apparent to a reasonable person, familiar with Licensee’s (or the Affiliates’) business and the industry in which it operates, that such information or materials are of a confidential or proprietary nature; or,


Any non-public, personal, financial or identifying information of an individual, including Licensee’s or an Affiliate’s customers or employees (“Nonpublic Personal Information”).


12.3   Duty of Care. The Party receiving (“Receiving Party”) Confidential Information of the other Party (“Disclosing Party”) will exercise at least the same degree of care with respect to the Disclosing Party’s Confidential Information that t

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