Quantech License and Services Agreement - Corbel & Co., Total Administrative Benefit Systems Inc. d/b/a Pentab and Fidelity Investments Institutional Services Inc.
EXECUTION COPY
QUANTECH LICENSE AND SERVICES AGREEMENT
This Agreement is entered into this 10th day of April , 1996 by and
between CORBEL & COMPANY, a Florida corporation with its principal place of
business in Jacksonville, Florida, on behalf of itself and its wholly-owned
subsidiary, TOTAL ADMINISTRATIVE BENEFIT SYSTEMS, INC. (d/b/a Pentab) (referred
to hereinafter collectively, for all purposes, as "Licensor") and FIDELITY
INVESTMENTS INSTITUTIONAL SERVICES, INC. ("Licensee"), a Massachusetts
corporation with its principal place of business in Boston, Massachusetts, who
agree for themselves, their successors and assigns as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the meanings set forth below:
1.1. "Affiliate" means any other Person directly or
indirectly Controlling, Controlled by or under common Control with a Person.
1.2. "Agreement" means this Agreement, including all
Schedules and Exhibits, as the same may be amended from time to time.
1.3. "Confidential Information" means any and all
information concerning the businesses and affairs of any of the parties that is
not already generally or readily obtainable by the public or is publicly known
or becomes publicly known through no fault of such party.
1.4. "Control" means an ownership interest of forty
percent (40%) or more.
1.5. "Copyrights" means United States and foreign
copyrights, whether registered or unregistered, and pending applications to
register the same.
1.6. "Documentation" means all written, graphic and
electronic materials currently in Licensor's possession, that describe the
structure, function or use of the Quantech Software or any Enhancement,
including all specifications, system documentation and user manuals.
1.7. "Enhancements" means any modification, enhancement,
refinement, variation or new version of the Quantech Software, in both object
code and source code form, and all Documentation relating thereto, that is
created by Licensor and made generally commercially available to the then
current licensees of the Quantech Software as an upgrade (whether or not a
maintenance fee is charged to such licensee for the upgrade), during the period
commencing on the date hereof and ending two years thereafter. Enhancement
shall not include any new version of, or a replacement to, the Quantech
Software that is available only as a newly licensed product.
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1.8. "Intellectual Property" means Patent Rights,
Copyrights, Trade Secrets and proprietary information, all applications for any
of the foregoing, and any license or agreements granting rights related to the
foregoing.
1.9. "Knowledge" means actual knowledge after reasonable
investigation.
1.10. "Licensor" has the meaning set forth in the preamble
above.
1.11. "Patent Rights" means United States and foreign
patents, patent applications, continuations, continuations-in-part, divisions,
reissues, patent disclosures, inventions (whether or not patentable) or
improvements thereto.
1.12. "Person" means an individual, a partnership, a
corporation, an association, a joint stock company, a trust, a joint venture,
an unincorporated organization, or a governmental entity (or any department,
agency, or political subdivision thereof).
1.13. "Trademarks" means United States and foreign
trademarks, service marks, trade dress, trade names and logos, whether
registered or unregistered, and pending applications to register the foregoing,
together with all translations, adaptations, derivations, and combinations
thereof and including all goodwill associated therewith.
1.14. "Trade Secrets" means confidential ideas, trade
secrets, know-how, concepts, methods, processes, formulas, reports, data,
customer lists, mailing lists, business plans, or other proprietary
information.
1.15. "Quantech Software" means the most current, premium
version, as of the date of this Agreement, of the computer software program
described in Schedule A, attached hereto and incorporated herein, and commonly
referred to by Licensor as "Quantech", in both object code and source code
form, and all Documentation relating thereto.
2. LICENSE.
2.1. Perpetual License. Licensor hereby grants to Licensee,
and Licensee hereby accepts from Licensor, subject to payment of the one-time
license fee pursuant to Section 3.1, a perpetual, irrevocable, nonexclusive,
worldwide right and license, with a right to grant sublicenses (to the extent
provided herein), to use, reproduce, modify, display, distribute and create
derivative works of the Quantech Software. Licensor further grants to
Licensee, and Licensee hereby accepts from Licensor, subject to payment of the
one-time license fee pursuant to Section 3.1, a perpetual, irrevocable,
nonexclusive, worldwide right and license, with a right to grant sublicenses
(to the extent provided herein), to use any of Licensor's Intellectual Property
that is embodied in the Quantech Software or the Documentation. Except as
otherwise provided herein, the rights granted to Licensee hereunder are
noncancellable, transferable and assignable.
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2.2. Enhancements. Subject to the terms and conditions
hereof, Licensor hereby grants to Licensee, and Licensee hereby accepts from
Licensor, a perpetual, irrevocable, nonexclusive, worldwide right and license,
with a right to grant sublicenses (to the extent provided herein), to use,
reproduce, modify, display, distribute and create derivative works of the
Enhancements. Subject to the terms and conditions hereof, Licensor further
grants to Licensee, and Licensee hereby accepts from Licensor, a perpetual,
irrevocable, nonexclusive, worldwide right and license, with a right to grant
sublicenses (to the extent provided herein), to use any of Licensor's
Intellectual Property (whether or not patentable or patented) that is embodied
in the Enhancements. Except as otherwise provided herein, the rights granted
to Licensee hereunder are noncancellable, transferable and assignable.
2.3. Sublicense Rights.
2.3.1. Object Code. Licensee may sublicense to its
Affiliates and to third parties the rights granted in Sections 2.1 and 2.2
above with respect to all or any part of the object code version of the
Quantech Software or any Enhancements.
2.3.2. Source Code. Licensee may sublicense to its
Affiliates and to third parties the rights granted in Sections 2.1 and 2.2
above with respect to all or any part of the source code version of the
Quantech Software or any Enhancements, provided that, during the period
commencing on the date hereof and ending three years thereafter, Licensee shall
not (and shall not permit any Affiliate to), directly or indirectly, disclose,
license, sublicense, assign, transfer or otherwise provide to any third party
all or any part of the source code version of the Quantech Software or any
Enhancements or any related Documentation or Intellectual Property.
2.4. Ownership Rights. Except as expressly provided herein,
Licensor retains all right, title and interest in the Quantech Software and the
Enhancements and in all Intellectual Property rights in or relating thereto.
As between Licensor and Licensee, and subject to Licensor's retained rights
with respect to the underlying Quantech Software and any Enhancements and the
Intellectual Property in or relating thereto, Licensee shall own all right,
title and interest in all modifications, enhancements, refinements, variations
or new versions of the Quantech Software, and in all Intellectual Property
rights in or relating thereto, hereafter developed by Licensee.
2.5 Delivery of Materials. Simultaneously with the execution
hereof, Licensor shall deliver to Licensee one source code copy and one object
code copy of the Quantech Software, together with one copy of all of the then
existing Documentation, to Licensee's site in Massachusetts. Licensor shall
promptly deliver to Licensee one source code copy and one object code copy of
any Enhancements, together with one copy of all the then existing Documentation
relating thereto, upon first making such Enhancement commercially available.
3. PAYMENTS.
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3.1. License Fees. In consideration of the rights granted to
Licensee under Section 2 hereof, Licensee shall pay Licensor a one-time license
fee of Three Million Dollars ($3,000,000), to become payable upon the
execution of this Agreement, and to be paid by the close of business on April
12, 1996, by wire transfer of immediately available funds in accordance with
written wire transfer instructions provided to Licensee by Licensor on or prior
to the date hereof. Licensor and Licensee agree that of the total amount of
the license fee due hereunder, Two Hundred Fifty Thousand Dollars ($250,000)
shall be in consideration for the rights granted under Section 2.1 above, with
respect to Licensee's internal use of the Software and Enhancements. Upon
payment of the one-time license fee hereunder, the license granted to licensee
under Section 2 hereof shall be fully paid but not royalty free.
3.2. Royalties.
3.2.1. Obligation to Pay Royalties. Commencing on
the date hereof and continuing thereafter for a period of two (2) years,
Licensee shall pay to Licensor royalty payments, as calculated in Section
3.2.2, if, and only if, Licensee or any of its Affiliates enters into one or
more agreements to sublicense third party end-users, in accordance with Section
2.3 hereof, the right to use the Quantech Software, any Enhancements or any
modifications, enhancements, refinements, or variations created by Licensee,
installed at any such third party end-user's site for its internal use.
3.2.2. Calculation of Royalties. In the event a
royalty payment is due with respect to any third party end-user (as described
in Section 3.2.1), such royalty payment shall be equal to the lesser of (a)
$25,000 or (b) 25% of any license fee paid to Licensee or its Affiliates by
that third-party end-user, whether or not payable to Licensee in installments,
to become payable upon the signing of a binding agreement between Licensee or
its Affiliates and such third party end-user. No royalties shall be paid in
respect of any service bureau, maintenance or other non-license related
recurring revenue.
3.2.3. Payment Terms. Licensee shall pay royalties
to Licensor hereunder on a quarterly basis. Such payment shall be made no
later than forty-five (45) days following the end of each calendar quarter
based on the license fees actually received by Licensee and its Affiliates
during such calendar quarter. At the time of each payment, Licensee shall
provide Licensor with a royalty statement in sufficient detail to allow
Licensor to understand the calculation of royalties reflected thereon and, upon
reasonable advance written request to Licensee by Licensor, Licensee shall
permit Licensor (but no more than twice in any 12 month period) to audit such
books, contracts and records of Licensee as may be reasonably required to
confirm the accuracy of such calculations. Upon payment of any royalties due
Licensor under this Section 3.2, the license granted herein shall be
royalty-free.
3.3. Additional Payments. Subject to the provisions of
Section 3.4 hereof, Licensee shall pay Licensor Two Million Dollars
($2,000,000), to become payable upon the Closing of the transaction
contemplated in that certain Asset Purchase Agreement, dated as of
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April 10, 1996, by and among Licensee, Broadway & Seymour, Inc. and certain
wholly-owned subsidiaries of Broadway & Seymour (the "Purchase Agreement"),
with such funds to be paid by wire transfer of immediately available funds in
accordance with written wire transfer instructions provided to Licensee by
Licensor, as follows:
3.3.1. Closing Under Purchase Agreement. Licensee
shall pay Licensor, upon the Closing under the Purchase Agreement, One Million
Dollars ($1,000,000), with such funds to be paid by wire transfer of
immediately available funds in accordance with written wire transfer
instructions provided to Licensee by Licensor on or before the date of such
Closing.
3.3.2. Completion of Training Services. Within ten
(10) days of completion of Licensor's obligation to provide the Training
Services set forth in Section 4 hereof, Licensee shall pay Licensor One
Million Dollars ($1,000,000), with such funds to be paid by wire transfer of
immediately available funds in accordance with written wire transfer
instructions provided to Licensee by Licensor.
Licensor and Licensee agree that of the total amount of the additional payments
due under this Section 3.3, Nine Hundred Thousand Dollars ($900,000) shall be
in consideration for the Transition Services, One Hundred Thousand Dollars
($100,000) shall be in consideration of the Training Services and One Million
Dollars ($1,000,000) shall be in consideration of the rights granted under
Section 2.2 above.
3.4. Certain Additional Payments Conditioned upon Closing.
In the event that no Closing occurs under the Purchase Agreement, the parties
agree as follows:
3.4.1. Licensee shall have no obligation whatsoever
to make the payment as provided for in Section 3.3.1.
3.4.2. Licensee shall have no obligation to make the
payment as provided for in Section 3.3.2, provided that Licensee shall pay
Licensor $100,000 in respect of the Training Services, within ten (10) days of
completion of Licensor's obligation to provide the Training Services set forth
in Section 4 hereof.
3.4.3. Licensor shall have no further obligation (a)
to provide Licensee with Enhancements, as provided in Section 2.2 or (b) to
provide the Transition Services, as set forth in Section 4. Licensee shall,
however, continue to be obligated to provide the Training Services as set forth
in Section 4 and the Consulting Services as set forth in Section 5.
4. TRAINING AND TRANSITION SERVICES.
4.1. Transition Services. Subject to provisions of Section
3.4 hereof, to facilitate the transfer of knowledge between the parties
contemplated by this Agreement, Licensor agrees that, during the period
commencing on the date payment is first made to Licensor under Section
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3.3.1, and ending on September 30, 1996, Licensor shall provide to Licensee
consulting and advisory services (the "Transition Services"), including
consultation and advice on product development, strategic planning and similar
issues, relating to the Quantech Software and Enhancements. Notwithstanding
the foregoing, Licensor shall not be required to perform any Transition
Services that (a) would cause it to breach any agreement binding on it, (b)
would require disclosure of confidential or proprietary information of
Licensor, (c) or would be otherwise unreasonably burdensome with respect to the
continuing business of Licensor.
4.2. Training Services. Subject to provisions of Section 3.4
hereof, to further facilitate the transfer of knowledge between the parties
contemplated by this Agreement, Licensor agrees that, during the period
commencing on the date payment is first made to Licensor under Section 3.3.1,
or, in the event such payment is not made on or before May 31, 1996, as
provided in Section 3.4.2, and ending on September 30, 1996, Licensor shall
provide to Licensee training services (the "Training Services"), subject to
the following terms and conditions:
4.2.1. Personnel; Location; Hours; Schedule. In
order to fulfill its obligation to provide Training Services, Licensor shall
make available to Licensee at Licensee's facilities in Massachusetts, or at
such other location as is mutually agreed to by the parties, the following
specific employees of Licensor for the stated amount of time:
Ken Simmons 20 business days (160 man-hours)
John Stinmeyer 20 business days (160 man-hours)
Paul Schneider 20 business days (160 man-hours)
In the event that one or more of the above employees is no longer an employee
of Licensor, Licensor shall make available to Licensee substitute employee(s),
subject to the prior approval of Licensee (which approval shall not be
unreasonably withheld), which employee(s) shall possess a level of skill and
competence consistent with that of skilled and competent computer industry
professionals with a combination of experience at the systems level and
specific experience with the Quantech Software appropriate for the provision of
the required Training Services. The parties shall work out a mutually
agreeable schedule, in minimum increments of one day, for the Training Services
to be provided by Licensor.
4.2.2. Expenses. Licensee shall reimburse Licensor
for any reasonable out-of-pocket expenses incurred by Licensor in providing the
Training Services.
4.2.3. Ownership Rights. Licensor hereby
acknowledges that Licensee shall own all right, title and interest in and to
the Copyright in any and all software and Documentation developed by employees
of Licensor pursuant to this Section 4. All code, documentation and other
written, graphic or electronic materials developed by employees of Licensor
pursuant to this Section 4 (whether individually or jointly with other persons)
are intended to be a "work made for hire" and Licensor hereby assigns to
Licensee any Copyright rights that it may have therein. Licensor agrees to
execute and deliver to Licensee any
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assignments or other documents as may be reasonably required to vest all such
Copyright rights in Licensee. Licensee hereby acknowledges that Licensor shall
retain all Intellectual Property rights other than the Copyright in such
software and Documentation.
5. CONSULTING SERVICES. Subject to the provisions of Section 3.4, in
addition to the Training Services provided by Licensor to Licensee pursuant to
Section 4 hereof, during the period commencing on (a) the date payment is first
made to Licensor under Section 3.3.1, or (b) in the event such payment is not
made, as provided in Section 3.4.2, on May 31, 1996, and ending two (2) years
thereafter, Licensor shall provide Licensee with additional consulting services
(the "Consulting Services"), to complete the transfer of knowledge contemplated
by this Agreement, subject to the following terms and conditions:
5.1. Personnel; Location. In order to fulfill its obligation
to provide Consulting Services, Licensor shall make available to Licensee at
Licensee's facilities in Massachusetts, or at such other location as is
mutually agreed to by the parties, the following specific employees of
Licensor:
Ken Simmons
John Stinmeyer
Paul Schneider
The Consulting Services shall be provided by Licensor, from time to time, upon
request by Licensee and upon reasonable prior notice to Licensor. In the event
that one or more of the above employees is no longer an employee of Licensor,
Licensor shall make available to Licensee substitute employee(s), subject to
the prior approval of Licensee, which employee(s) shall possess a level of
skill and competence consistent with that of skilled and competent computer
industry professionals with a combination of experience at the systems level
and specific experience with the Quantech Software appropriate for the
provision of the required Consulting Services.
5.2. Minimum Number of Hours; Hourly Rate; Schedule. If
requested by Licensee, Licensor shall provide up to 250 man-hours of Consulting
Services pursuant to this Section 5. Licensee shall pay Licensor at Licensor's
then prevailing rates for similar consulting services, which rates shall not be
unreasonable in light of the scope of work to be provided, and which rates
shall not exceed $150.00 per hour. The parties shall work out a mutually
agreeable schedule for the Consulting Services to be provided by Licensor;
provided that any work performed in Massachusetts shall be in minimum
increments of 1 day.
5.3. Expenses. Licensee shall reimburse Licensor for any
reasonable out-of-pocket expenses incurred by Licensor in providing the
Consulting Services.
5.4. Ownership Rights. Licensor hereby acknowledges that
Licensee shall own all right, title and interest in and to the Copyright in any
and all software and Documentation developed by employees of Licensor pursuant
to this Section 5. All code, documentation and
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other written, graphic or electronic materials developed by employees of
Licensor pursuant to this Section 5 (whether individually or jointly with other
persons) are intended to be a "work made for hire" and Licensor hereby assigns
to Licensee any Copyright rights that it may have therein. Licensor agrees to
execute and deliver to Licensee any assignments or other documents as may be
reasonably required to vest all such Copyright rights in Licensee. Licensee
hereby acknowledges that Licensor shall retain all Intellectual Property rights
other than the Copyright in such software and Documentation.
6. REPRESENTATIONS AND WARRANTIES OF LICENSOR. Licensor hereby
represents and warrants to Licensee, the following:
6.1. Authorization; Enforceability. Licensor has the
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. This Agreement has been duly executed and
delivered by Licensor and constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms and conditions.
6.2. Ownership. Licensor has all the necessary right, title
and interest in the Quantech Software and the Enhancements to grant the
licenses contemplated herein, including all necessary rights to any portion of
the Quantech Software or any Enhancement created by an independent contractor
or other third party. The foregoing warranty shall not apply to any
modifications, changes, enhancements, updates, conversions, upgrades, or
additions made to the Quantech Software or any Enhancement by any person or
entity other than Licensor unless approved by Licensor. The exclusive remedy
for any breach of this Section 6.2 shall be indemnification as provided in
Section 9 hereof.
6.3. Infringement. The use of the Quantech Software and any
Enhancements by the Licensee will not violate (a) the Patent Rights of any
third party in the United States or Canada, (b) the Copyright of any third
party in any country that is a party to the Berne Convention or (c) the Trade
Secrets of any third party. The foregoing warranty shall not apply to any
modifications, changes, enhancements, updates, conversions, upgrades, or
additions made to the Quantech Software or any Enhancement by any person or
entity other than Licensor unless approved by Licensor. The Quantech Software
and any Enhancements are free and clear of any claim of third party
infringement of any Intellectual Property right, and there are no actions
proceeding, pending, or to the best Knowledge of Licensor, threatened which
claim that the Quantech Software or any Enhancements, or any part thereof,
infringes upon or is infringed by any Intellectual Property right of any third
party. The exclusive remedy for any breach of this Section 6.3 shall be
indemnification as provided in Section 9 hereof
6.4. Conformance with Specifications. For a period of two
(2) years after the initial installation of the Quantech Software on Licensee's
site (the "Warranty Period"), the Quantech Software and any Enhancements will
be free of any defect rendering the program unfit for the purpose of the
functions described in the Documents listed in Schedule A hereto. The
foregoing warranty shall not apply to any modifications, changes, enhancements,
updates,
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conversions, upgrades, or additions made to the Quantech Software or any
Enhancement by any person or entity other than Licensor unless approved by
Licensor. If during the Warranty Period the Quantech Software or any
Enhancement does not comply with the provisions of this Section 6.4, and
Licensee promptly delivers written notice thereof to Licensor, Licensor shall
correct, cure or otherwise remedy the Quantech Software or Enhancement so that
it complies with this Section 6.4.
6.5. Security Measures, etc. The Quantech Software and any
Enhancement does not contain any mechanism that would enable Licensor or any
other party to disable the Quantech Software or any Enhancement or make it
inaccessible to a user. Licensor agrees to use its best efforts to ensure that
the Quantech Software and any Enhancement in the form delivered to Licensee
does not contain any computer virus or worm.
6.6. Disclaimer; Limitation of Liability. EXCEPT AS
OTHERWISE PROVIDED HEREIN, LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY SHALL BE LIABLE FOR
INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO
LOST PROFITS ARISING OUT OF THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, OR
ANY OTHER LEGAL THEORY, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. COVENANTS. The parties agree as follows:
7.1 Licensor Covenants.
7.1.1. Independent Contractors. Licensor will not
use any independent contractor or other third party to develop proprietary
components of the Enhancements, unless all rights in proprietary components
developed by independent contractors or other third parties have been or will
be assigned to Licensor and licensed to Licensee.
7.1.2. Linkages. Licensor covenants and agrees to
modify the Quantech Software to include linkage functionality for
electronically clearing transactions, including an optional, nonexclusive
capability for Quantech Software licensees to link to Licensee's clearing
capability, all as described more fully in Schedule B, attached hereto and
incorporated herein, in addition to any other linkage functionality or clearing
capabilities that Licensor elects to include, such modification to be completed
by December 31, 1996. Until such time as the parties mutually agree that the
linkage functionality described above in the Quantech Software has become
obsolete or otherwise impracticable, Licensor shall (subject to the provisions
of Schedule B) include in all future versions, modifications and enhancements
of the Quantech Software, as soon as reasonably practicable, given the
magnitude of the work required, as an optional function, the capability for
Quantech Software licensees to link to Licensee's clearing capability.
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7.1.3. Effect of Bankruptcy of Licensor. Licensor
agrees that if Licensor as a debtor-in-possession or if a trustee in
bankruptcy rejects this agreement, Licensee may elect to retain its rights
under the Agreement as provided in Section 365(n) of the United States
Bankruptcy Code. Upon written request of Licensee to Licensor or the trustee
in bankruptcy, Licensor or such trustee shall allow Licensee to exercise its
rights under this Agreement and shall not interfere with the rights of the
Licensee as provided in this Agreement. The foregoing shall survive the
termination or expiration of this Agreement for any reason whatsoever.
7.1.4. General Right to Develop and Market. With
the exception of Licensor's obligations under Section 7.1.2 hereof, nothing in
this Agreement shall be construed as limiting or restricting Licensor's right
to modify, enhance and develop new versions of the Quantech Software and to
market such software to third parties, in whatever manner Licensor determines,
in its sole discretion, to be in its best interest.
7.1.5. No Other Licensor Obligations. Except as
expressly provided herein or as provided in any subsequent agreement between
the parties, Licensor has no obligation to create or provide to Licensee any
enhancements, modifications or updates to the Quantech Software or
Documentation or to provide any maintenance, training or other services to
Licensee of any nature whatsoever. Licensee acknowledges that the Quantech
Software will not function properly without the use of hardware and software
owned by third parties and Licensee agrees that it shall have the sole
responsibility for purchasing any such hardware and obtaining licenses to any
such software.
7.2. Licensee Covenants.
7.2.1. No Use of Quantech Trademark. Licensee shall
not use the trademark "Quantech", or any phrase that is confusingly similar to
the trademark "Quantech", to market or identify the Quantech Software or any
derivative work thereof or any other software product that performs similar
functions. Except as required by Section 7.2.3 hereof, Licensee shall not
identify Licensor as the source of Licensee's software programs based on the
Quantech Software.
7.2.2. Exports. In no event may Licensee export any
Quantech Software or Documentation or use any Quantech Software or
Documentation outside the United States unless it has complied fully with all
relevant regulations of the U.S. Department of Commerce and with the U.S.
Export Administration Act.
7.2.3. Protection of Licensor's Intellectual
Property Rights. Licensee shall take reasonable steps to protect Licensor's
intellectual property rights in the Quantech Software and Documentation
including, without limitation, retaining all legends relating to copyright on
all copies of the Quantech Software and Documentation and advising Licensor
should Licensee discover that any third party is infringing Licensor's
intellectual property rights in the Quantech Software or Documentation.
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7.2.4. Non-Hire and Non-Solicitation of Employees.
Licensee covenants and agrees that, during the period commencing on the date
hereof and ending on September 30, 1996, Licensee will not, directly or
indirectly without the written consent of Licensor, recruit, offer employment,
employ (including employment as a consultant), lure or entice away any of the
individuals referenced in Sections 4 and 5 hereof employed by the Licensor, or
otherwise to induce such individuals to leave the employ of the Licensor.
Licensee covenants and agrees that, during the period commencing on September
30, 1996 and ending on December 31, 1996, Licensee will not, directly or
indirectly without the written consent of Licensor, recruit, lure or entice
away any of the individuals referenced in Sections 4 and 5 hereof employed by
the Licensor, or otherwise take affirmative steps to induce such individuals to
leave the employ of the Licensor.
8. CONFIDENTIALITY. Each of the parties will treat and hold as such
all of the Confidential Information of the other party, refrain from using any
of the Confidential Information except in connection with this Agreement, and
deliver promptly to the party to which it relates or destroy, at the request
and option of such party, all tangible embodiments (and all copies) of the
Confidential Information which are in its possession. In the event that any of
the parties is requested or required (by oral question or request for
information or documents in any legal proceeding, interrogatory, subpoena,
civil investigative demand, or similar process) to disclose any Confidential
Information of any other party, that such party will notify the other party
promptly of the request or requirement so that the other party may seek an
appropriate protective order or waive compliance with the provisions of this
Section 8. If, in the absence of a protective order or the receipt of a waiver
hereunder, any of the parties is, on the advice of counsel, compelled to
disclose Confidential Information of any other party, to any tribunal or else
stand liable for contempt, that such party may disclose the Confidential
Information to the tribunal; provided, however, that the disclosing party shall
use its best efforts to obtain, at the request of the other party, an order or
other assurance that confidential treatment will be accorded to such portion of
the Confidential Information required to be disclosed as the other party shall
designate.
9. INDEMNIFICATION. Licensor shall indemnify, defend and hold
Licensee harmless from and against any and all suits, actions, damages, losses,
costs and expenses (including court costs and attorneys' fees should Licensor
breach its obligation to defend) and other liabilities arising from or in
connection with any claim arising out of a breach of Licensor's representations
and warranties contained in Sections 6.2 and 6.3 hereof and shall pay all costs
and damages awarded. Licensee shall promptly notify Licensor of any such
claim. Licensor shall retain sole control over the defense and settlement of
such claim, and Licensee shall cooperate with Licensor in the defense of the
claim. Licensee shall have the right, at its option, to participate in the
defense of any such claim at its sole expense. At Licensor's option, Licensor
may satisfy its entire obligation under this Section (other than claims for
damages brought by third parties and any expenses incurred in defending any
third party claims) by: (a) with the prior written consent of Licensee (such
consent not to be unreasonably withheld) modifying the Quantech Software or
Documentation or any Enhancement so that it performs comparable functions
without infringement; or (b) obtaining a royalty-free, perpetual, irrevocable,
nonexclusive, transferable
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right and license for Licensee to use, transfer, copy, display, distribute,
sublicense and prepare derivative works of source code and object code copies
of the infringing Quantech Software or Documentation in accordance with the
terms of this Agreement.
10. MISCELLANEOUS.
10.1. No Third Party Beneficiaries. This Agreement shall not
confer any rights or remedies upon any Person other than the parties and their
respective successors and permitted assigns.
10.2. Entire Agreement. This Agreement (including the
documents referred to herein) constitutes the entire agreement between the
parties and supersedes any prior understandings, agreements, or representations
by or between the parties, written or oral, to the extent they related in any
way to the subject matter hereof.
10.3. Succession and Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties named herein and their
respective successors and permitted assigns. This Agreement shall, subject to
the terms and conditions hereof, be freely assignable by the parties; provided,
however, for a period commencing on the date hereof and ending three years
thereafter, Licensee shall not assign this Agreement or its rights or
obligations hereunder to any Person which is not an Affiliate of Licensee
without the prior written consent of Licensor, and provided further that
Licensee shall require any Affiliates who are assignees to comply with
provisions of this Agreement, including this Section 10.3.
10.4. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
10.5. Headings. The section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
10.6. Notices. All notices, requests, demands, claims, and
other communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given (i) upon
confirmation of facsimile, (ii) when sent by overnight delivery and (iii) when
mailed by registered or certified mail return receipt requested and postage
prepaid at the following address:
If to Licensor:
1660 Prudential Drive
Jacksonville, FL 32207
Telefax: 904-399-5551
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Attn: President
Copy to:
-------
Broadway & Seymour, Inc.
128 South Tryon Street
Charlotte, NC 28202
Attn: General Counsel
Telefax: (704) 344-3542
If to Licensee:
--------------
82 Devonshire Street
Boston, MA 02109
Telefax: (617) 476-0932
Attn: President
Copy to:
-------
82 Devonshire Street
Boston, MA 02109
Telefax: (617) 476-0932
Attn: General Counsel
Any party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been
duly given unless and until it actually is received by the intended recipient.
Any party may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other
party notice in the manner herein set forth.
10.7. Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of The Commonwealth of
Massachusetts without giving effect to any choice or conflict of law provision
or rule (whether of The Commonwealth of Massachusetts or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than The Commonwealth of Massachusetts.
10.8. Amendments and Waivers. No amendment of any provision
of this Agreement shall be valid unless the same shall be in writing and signed
by the parties. No waiver by any party of any default, misrepresentation, or
breach of warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default,
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<PAGE> 14
misrepresentation, or breach of warranty or covenant hereunder or affect in any
way any rights arising by virtue of any prior or subsequent occurrence.
10.9. Severability. Any term or provision of this Agreement
that is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
10.10. Expenses. Each of the Licensor and Licensee will bear
its own costs and expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions contemplated hereby.
10.11. Relationship of Parties. This Agreement is not
intended to and does not create a partnership or joint venture relationship
among the parties. No employee of Licensor shall be entitled to any Licensee
benefits and no such employee is covered by the workers compensation insurance
of Licensee. Neither party has authority to enter into any contracts or
agreements on behalf of the other or to make any warranties or representations
that purport to bind the other.
[this space intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
the year and date first above written.
CORBEL & CO. FIDELITY INVESTMENTS INSTITUTIONAL
SERVICES, INC.
By: /s/ Alan C. Stanford By: /s/ Paul J. Hondros
--------------------------- ---------------------------
Title: Vice President Title: President
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<PAGE> 16
SCHEDULE A
QUANTECH SOFTWARE DELIVERABLES
1. Quantech is defined as the source code, object code, database and data
definitions for the components listed below to handle 401(k), Profit
Sharing, Money Purchase Plans, etc.:
1.1 Quantech Professional and optional modules including, but not
limited to the following:
1.1.1 10 1/2 with Calculations
1.1.2 1099's
1.1.3 Compliance testing
1.1.4 Standard Reports
1.1.5 Global Transactions
1.1.6 Electronic Census Import/Export Data Entry Routines
1.1.7 Data Collection Module
1.1.8 Age Weighted/Cross-Testing
1.1.9 Participant Loans
1.1.10 Target Benefit
1.1.11 Client Management System
1.1.12 Trust Accounting
1.1.13 Allocation Import Link Package
1.1.14 Investment Download
1.1.15 Insurance
1.2 Delrina Form Flow software required for:
1.2.1 Administrative Government Forms
1.2.2 Legal Government Forms
1.3 Voice Response interfaces to:
1.3.1 Edify
1.3.2 Intervoice
1.4 Crystal Report Writer interface
1.5 Proprietary Database Wrapper
1.6 Security device for licensing key
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<PAGE> 17
2. The warranty contained in Section 6.4 shall correspond to the
following Quantech Documentation:
2.1 Quantech Starter's Guide
2.2 Quantech Government Forms Nonintegrated System Users Guide
2.3 Quantech Client Management System Users Guide
2.4 Quantech Owners and Installation Manual
2.5 Quantech Report Writer Users Guide
2.6 Quantech Defined Contribution and Integrated Applications
Users Guide
2.7 Quantech System Reference Manual (3 page overview that
accompanies license agreements)
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SCHEDULE B
QUANTECH LINKAGES
Corbel will develop, maintain and enhance linkage interfaces from Quantech to
AMTrust/AMPreferred and FTS as highlighted below and fully defined in the
Fidelity Investments Linkage Project-Business Requirements and Functional
Specifications Document attached as Exhibit A hereto (Section 6; dated
11/6/95).
The interface development responsibility is limited to the files referenced
below, or files of similar nature, required to accomplish the stated business
purpose of maintaining Quantech links with AMTrust/AMPreferred and FTS.
1. TRUST LINKAGES (QUANTECH TO AMTRUST/AMPREFERRED)
1.1 Implement interfaces between the record keeping system and the
trust system. The interfaces will enable single processing or
data entry for like processing events occurring on both the
trust and record keeping systems.
1.2 The interfaces include, but are not limited to, the following:
1.2.1 Contribution Data File
1.2.2 Trade Order Processing
1.2.3 Acknowledgment Processing
1.2.4 Trade Confirm Processing
1.2.5 Position Reconciliation
1.2.6 Price/Rate File Processing
1.2.7 Dividend/Capital Gain Processing
1.2.8 Deposit Advice
1.2.9 Cusip File Processing
1.2.10 Security Master Updates
1.3 All interfaces will be defined, tested and in production by
12/31/96.
1.4 Future modifications resulting from Fidelity initiated
changes, will be performed by Corbel at the expense of
Fidelity, and be delivered in a timely manner.
2. TRADING LINKAGES (QUANTECH TO FTS)
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2.1 Implement full interfaces between the record keeping system
and the mutual fund trade order processing system. The
linkages will enable automatic trade placement/execution for
401(k) activity originating on the record keeping system.
These interfaces will be used when AMTrust/AMPreferred is not
the trust solution.
2.2 The interfaces include, but are not limited to, the following:
2.2.1 Trade Order Processing
2.2.2 Acknowledgment Processing
2.2.3 Trade Confirm Processing
2.2.4 Position Reconciliation
2.2.5 Price/Rate File Processing
2.2.6 Dividend/Capital Gain Processing
2.2.7 Reinvest Trade Confirmation
2.2.8 Cusip File Processing
2.2.9 Security Master Updates
2.3 All interfaces will be defined, tested and in production by
12/31/96.
2.4 Future modifications resulting from Fidelity initiated
changes, will be performed by Corbel at the expense of
Fidelity, and be delivered in a timely manner.
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