License Agreement [eLoyalty as Licensor] - eLoyalty Corp. and Technology Solutions Co.
LICENSE AGREEMENT
(eLoyalty as Licensor)
This LICENSE AGREEMENT is entered into and is effective as of
_____________ day of _________________, 1999 by and between eLoyalty
Corporation, a Delaware corporation, having its principal place of business in
Chicago, Illinois ("eLoyalty" or "Licensor"), and Technology Solutions Company,
a Delaware corporation, having its principal place of business in Chicago,
Illinois ("TSC" or "Licensee").
RECITALS
WHEREAS, TSC provides, inter alia, information technology consulting
and strategic business consulting services that help clients improve operations,
transform customer relationships and build and enhance customer loyalty (as more
fully described in Exhibit A to the Reorganization Agreement defined below, the
"eLoyalty Business");
WHEREAS, pursuant to a Reorganization Agreement dated _____________
(the "Reorganization Agreement"), TSC has agreed to transfer and assign, or
cause to be transferred and assigned, to eLoyalty substantially all of the
assets and properties of the eLoyalty Business held by TSC and/or one or more of
its Subsidiaries, and eLoyalty has agreed to assume, or cause to be assumed by
one or more of its Subsidiaries, certain liabilities and obligations arising out
of or relating to the eLoyalty Business;
WHEREAS, pursuant to the transactions described above, TSC has
transferred to eLoyalty certain software, interfaces, methodologies, copyrights,
inventions, technology, trade secrets, know-how and related rights which are
primarily utilized in or related to the eLoyalty Business.
WHEREAS, TSC has retained those software, interfaces, methodologies,
copyrights, inventions, technology, trade secrets, know-how and related rights
which are used primarily in its retained business.
WHEREAS, Licensor desires to grant, and Licensee desires to accept, a
nonexclusive, royalty free, worldwide, perpetual license to use, manufacture,
make, have made, sell, sublicense, copy, create derivative works based upon,
modify, and otherwise exploit the above software, interfaces, methodologies,
copyrights, inventions, technology, trade secrets, know-how and related rights,
according to the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Licensee and Licensor
agree as follows:
<PAGE> 2
ARTICLE I
DEFINITIONS
Unless otherwise defined herein, each capitalized term used
herein that is defined in the Reorganization Agreement shall have the meaning
specified for such term in the Reorganization Agreement.
SECTION 1.01. "Agreement" shall mean this License Agreement and any
attached Exhibits.
SECTION 1.02. "Copyrights" shall mean all copyrights, both registered
and unregistered, which were assigned to Licensor pursuant to the Reorganization
Agreement and which were used in the Retained Business immediately prior to the
Effective Date.
SECTION 1.03. "Effective Date" shall mean the date of this Agreement.
SECTION 1.04. "Indemnified Party" shall mean a party that is entitled
to indemnification pursuant to ARTICLE VIII of this Agreement.
SECTION 1.05. "Indemnifying Party" shall mean a party that obligated to
indemnify an Indemnified Party pursuant to ARTICLE VIII of this Agreement.
SECTION 1.06. "Intellectual Property Rights" shall mean all Software,
Methodologies, Interfaces, Copyrights, and all business and technical
information, nonpatented inventions, discoveries, processes, formulations, trade
secrets, know-how, technical data and other intellectual property rights and all
related rights which were assigned to Licensor pursuant to the Reorganization
Agreement and which were used in the Retained Business immediately prior to the
Effective Date, including, without limitation, the interfaces described in
Exhibit 1, attached hereto and incorporated herein.
SECTION 1.07. "Interfaces" shall mean the software programs which
create interfaces between the Software and third party software programs which
were assigned to Licensor pursuant to the Reorganization Agreement and which
were used in the Retained Business immediately prior to the Effective Date,
including, without limitation, the interfaces described in Exhibit 1, attached
hereto and incorporated herein.
SECTION 1.08. "Methodologies" shall mean the methodologies,
architectures, processes, algorithms, including, without limitation all related
trade secrets and know-how, which were assigned to Licensor pursuant to the
Reorganization Agreement and which were used in the Retained Business
immediately prior to the Effective Date, including, without limitation, the
methodologies described in Exhibit 1, attached hereto and incorporated herein.
SECTION 1.09. "Retained Business" means those portions of the business
of TSC
2
<PAGE> 3
and its Subsidiaries as of the date of the Reorganization Agreement that are not
part of the eLoyalty Business.
SECTION 1.10. "Software" shall mean the computer software programs, in
source code and object code form, including, without limitation, all related
source diagrams, flow charts, specifications, documentation and all other
materials and documentation necessary to allow a reasonably skilled third party
programmer or technician to maintain, support or enhance the Software, which
were assigned to Licensor pursuant to the Reorganization Agreement and which
were used in the Retained Business immediately prior to the Effective Date,
including, without limitation, the computer software programs described in
Exhibit 1 attached hereto and incorporated herein.
ARTICLE II
LICENSE
SECTION 2.01. Grant of License. Subject to the terms of SECTION 10.02
herein, Licensor hereby grants, and Licensee hereby accepts, a nonexclusive,
royalty-free, worldwide, perpetual license to use, manufacture, make, have made,
sell, sublicense, copy, create derivative works based upon, modify, and
otherwise exploit the Intellectual Property Rights. The foregoing
notwithstanding, Licensee may only use the Intellectual Property Rights
designated in Exhibit 1 as "Nontransferable" for Licensee's internal business
purposes.
SECTION 2.02. Improvements. The license granted herein does not include
any improvements, enhancements, new versions, new releases, or other
modifications (collectively, "Improvements") to the Intellectual Property Rights
created or developed by Licensor subsequent to the Effective Date. Neither party
shall have an obligation to provide or otherwise disclose Improvements created
or developed by that party subsequent to the Effective Date to the other party.
SECTION 2.03. DISCLAIMER OF WARRANTY. ALL INTELLECTUAL PROPERTY RIGHTS
ARE BEING LICENSED ON AN "AS IS, WHERE IS" BASIS WITHOUT ANY REPRESENTATION OR
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, MARKETABILITY,
TITLE, VALUE, FREEDOM FROM ENCUMBRANCE OR ANY OTHER REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, AND LICENSEE SHALL BEAR THE ECONOMIC AND LEGAL RISKS THAT
ANY GRANT OF LICENSE OF SUCH INTELLECTUAL PROPERTY RIGHTS SHALL PROVE TO BE
INSUFFICIENT OR THAT LICENSOR'S TITLE TO ANY SUCH INTELLECTUAL PROPERTY RIGHTS
SHALL BE OTHER THAN GOOD AND MARKETABLE AND FREE OF ENCUMBRANCES.
ARTICLE III
TRAINING AND ASSISTANCE
SECTION 3.01. Provision of Assistance. If Licensee requires the
reasonable
3
<PAGE> 4
assistance of Licensor's personnel with respect to the rights granted to
Licensee in the Intellectual Property Rights, whether by means of training,
consultation or otherwise, upon receiving a written request from Licensee,
Licensor will provide to Licensee personnel in reasonable numbers and with
sufficient expertise to meet Licensee's reasonable requirements. Licensor's
obligations under this SECTION 3.01 to provide assistance will expire on June
30, 2000.
SECTION 3.02. Payment for Services. Licensee will pay for the services
of the above personnel at a rate to be mutually agreed upon, but in no event at
any higher rate than Licensor's standard rate for such personnel, and shall
reimburse Licensor for reasonable out of pocket expenses incurred in providing
such services.
ARTICLE IV
DISCLOSURE
SECTION 4.01. To the extent not already done, Licensor will, on the
Effective Date and thereafter on receiving a request from Licensee, provide to
Licensee any and all materials, documents, data, lists, drawings, schematics,
formulae and other information (whether in written, electronic or other format)
which were created on or before the Effective Date as Licensee may reasonably
require with respect to the rights granted to Licensee in the Intellectual
Property Rights.
ARTICLE V
TERM AND TERMINATION
SECTION 5.01. Term of License. The license granted in ARTICLE II of
this Agreement shall continue in full force and effect until terminated in
accordance with the terms of this Agreement.
SECTION 5.02. Termination of License. This Agreement may be terminated
upon 45 days written notice by either party if the other party is in breach of a
material term of this Agreement provided that, in the case of a breach which is
capable of remedy, such breach has not been remedied within 45 days of receipt
of that written notice.
SECTION 5.03. Survival of Obligations. In the event of termination of
this Agreement, ARTICLE I, ARTICLE VII, ARTICLE IX, and ARTICLE X will survive
and remain in force.
ARTICLE VI
OWNERSHIP
SECTION 6.01. Licensor's Rights. Licensee acknowledges that Licensor is
the sole and exclusive owner of all right, title and interest in and to the
Intellectual Property Rights.
4
<PAGE> 5
Nothing contained herein shall create, nor shall be construed as, an assignment
of any right, title or interest in or to such Intellectual Property Rights other
than as granted in ARTICLE II; it being acknowledged that all other right, title
and interest in and to such Intellectual Property Rights, is expressly reserved
by Licensor. Licensee agrees that it will do nothing inconsistent with
Licensor's ownership of, or rights in such Intellectual Property Rights, and
that all use of such Intellectual Property Rights, shall inure to the benefit
of, and be on behalf of, the Licensor. Subject to the provisions of ARTICLE VII,
Licensor, at its expense, agrees to take all steps reasonably necessary to
protect, enforce or otherwise maintain in full force and effect such
Intellectual Property Rights, as applicable, including, without limitation, the
filing of any required renewals and the payment of any required fees, taxes or
other payments that may become due. Licensee shall cooperate with Licensor in
connection with such steps at Licensor's reasonable request and at Licensor's
expense. Licensor shall not allow any registration or application for any such
Intellectual Property Rights to lapse without prior written notice to Licensee.
If Licensor so notifies Licensee, (a) Licensee has the right, but not the
obligation to take such steps, at Licensee's expense and in Licensor's name, if
necessary, to protect or maintain such Intellectual Property Rights, and (b)
Licensor shall cooperate with Licensee at Licensee's reasonable request and at
Licensee's expense.
SECTION 6.02. Markings. Licensee agrees that any products or processes
manufactured, made, offered, sold or otherwise distributed by it pursuant to the
license(s) granted hereunder shall bear a legal notice in such form as may be
prescribed by law or otherwise as reasonably prescribed by the Licensor from
time to time.
ARTICLE VII
INFRINGEMENT
SECTION 7.01. Notice of Infringement. Each party will notify the other
of any claim, action, threat or situation in which it believes that the
Intellectual Property Rights are or may be infringed by a third party. Licensor
shall have a reasonable amount of time to investigate the situation and shall
inform Licensee in writing whether it intends to enforce its rights against such
third party.
SECTION 7.02. Enforcement by Licensor. If Licensor decides to enforce
its rights, it shall do so at its expense and Licensee shall cooperate with
Licensor at Licensor's reasonable request and expense. Licensee shall have the
right to participate in such enforcement with counsel of its choice, but such
participation shall be at its expense unless requested by Licensor.
SECTION 7.03. Enforcement by Licensee. If Licensor decides not to
enforce its rights, Licensee may choose to do so at its own expense. In such a
situation, Licensor shall cooperate with Licensee at Licensee's reasonable
request and expense and Licensee shall have the right to bring any actions in
Licensor's name, if necessary. Licensor shall have the right to participate in
such enforcement with counsel of its choice, but such participation shall be at
its expense unless requested by Licensee.
5
<PAGE> 6
SECTION 7.04. Infringement of Third Party Rights. If either party
becomes aware of any allegation, claim, actions or threats brought by any third
party on the grounds that any of the Intellectual Property Rights infringe a
third party's rights they shall notify the other immediately. If a final
injunction is obtained against Licensee's use of the Intellectual Property
Rights by reason of such infringement, or if in Licensor's reasonable opinion
the Intellectual Property Rights are likely to become the subject of a claim for
such infringement, then either party may terminate this Agreement upon 15 days
written notice with respect to the Intellectual Property Right that is the
subject of such infringement claim.
ARTICLE VIII
INDEMNITY
SECTION 8.01. By Licensee. Licensee shall indemnify, defend and hold
harmless Licensor and each of its Affiliates, directors, officers, employees and
agents, and each of the heirs, executors, successors and assigns of any of the
foregoing (collectively, the "Licensor Indemnified Parties"), from and against
any and all expenses incurred in connection with investigating, defending or
asserting any claim, action, suit or proceeding incident to any matter
indemnified against hereunder (including court filing fees, court costs,
arbitration fees or costs, witness fees, and reasonable fees and disbursements
of legal counsel, investigators, expert witnesses, consultants, accountants and
other professionals) (hereinafter, "Expenses") and any and all losses, costs,
obligations, liabilities, settlement payments, awards, judgments, fines,
penalties, damages, fees, expenses, deficiencies, claims or other charges,
absolute or contingent, matured or unmatured, liquidated or unliquidated,
accrued or unaccrued, known or unknown (including, without limitation, the costs
and expenses of any and all such actions, threatened actions, demands,
assessments, judgments, settlements and compromises relating thereto and
attorneys' fees and any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any such actions or threatened
actions) ("hereinafter, "Losses") incurred or suffered by Licensor (and/or one
or more of the Licensor Indemnified Parties), in connection with, relating to,
arising out of or due to, directly or indirectly, claims, causes of actions and
demands based upon the use by Licensee of the Intellectual Property Rights.
SECTION 8.02. By Licensor. Licensor shall indemnify, defend and hold
harmless Licensee and each of its Affiliates, directors, officers, employees and
agents, and each of the heirs, executors, successors and assigns of any of the
foregoing (collectively, the "Licensee Indemnified Parties"), from and against
any and all Expenses and any and all Losses incurred or suffered by Licensee
(and/or one or more of the Licensee Indemnified Parties), in connection with,
relating to, arising out of or due to, directly or indirectly, claims, causes of
actions and demands based upon the use by Licensor of the Intellectual Property
Rights.
SECTION 8.03. Procedures for Indemnification of Third Party Claims.
(a) If any third party shall make any claim or commence any arbitration
proceeding or suit (collectively, a "Third Party Claim") against any one or more
of the Indemnified Parties with
6
<PAGE> 7
respect to which an Indemnified Party intends to make any claim for
indemnification against Licensor under SECTION 8.01 or against Licensee under
SECTION 8.02, such Indemnified Party shall promptly give written notice to the
Indemnifying Party describing such Third Party Claim in reasonable detail, and
the following provisions shall apply. Notwithstanding the foregoing, the failure
of any Indemnified Party to provide notice in accordance with this subsection
(a) shall not relieve the related Indemnifying Party of its obligations under
this ARTICLE VIII, except to the extent that such Indemnifying Party is actually
prejudiced by such failure to provide notice.
7
<PAGE> 8
(b) The Indemnifying Party shall have 20 business days after receipt of
the notice referred to in subsection (a) above to notify the Indemnified Party
that it elects to conduct and control the defense of such Third Party Claim. If
the Indemnifying Party does not give the foregoing notice, the Indemnified Party
shall have the right to defend, contest, settle or compromise such Third Party
Claim in the exercise of its exclusive discretion subject to the provisions of
subsection (c) below, and the Indemnifying Party shall, upon request from any of
the Indemnified Parties, promptly pay to such Indemnified Parties in accordance
with the other terms of this subsection (b) the amount of any Expense or Loss
resulting from their liability to the third party claimant. If the Indemnifying
Party gives the foregoing notice, the Indemnifying Party shall have the right to
undertake, conduct and control, through counsel reasonably acceptable to the
Indemnified Party, and at its sole expense, the conduct and settlement of such
Third Party Claim, and the Indemnified Party shall cooperate with the
Indemnifying Party in connection therewith, provided that (i) the Indemnifying
Party shall not thereby permit any lien, encumbrance or other adverse charge to
thereafter attach to any asset of any Indemnified Party; (ii) the Indemnifying
Party shall not thereby permit any injunction against any Indemnified Party;
(iii) the Indemnifying Party shall permit the Indemnified Party and counsel
chosen by the Indemnified Party and reasonably acceptable to the Indemnifying
Party to monitor such conduct or settlement and shall provide the Indemnified
Party and such counsel with such information regarding such Third Party Claim as
either of them may reasonably request (which request may be general or
specific), but the fees and expenses of such counsel (including allocated costs
of in-house counsel and other personnel) shall be borne by the Indemnified Party
unless (1) the Indemnifying Party and the Indemnified Party shall have mutually
agreed to the retention of such counsel or (2) the named parties to any such
Third Party Claim include the Indemnified Party and the Indemnifying Party and
in the reasonable opinion of counsel to the Indemnified Party representation of
both parties by the same counsel would be inappropriate due to actual or likely
conflicts of interest between them, in either of which cases the reasonable fees
and disbursements of counsel for such Indemnified Party (including allocated
costs of in-house counsel and other personnel) shall be reimbursed by the
Indemnifying Party to the Indemnified Party; and (iv) the Indemnifying Party
shall agree promptly to reimburse to the extent required under this ARTICLE VIII
the Indemnified Party for the full amount of any Expense or Loss resulting from
such Third Party Claim and all related expenses incurred by the Indemnified
Party. In no event shall the Indemnifying Party, without the prior written
consent of the Indemnified Party, settle or compromise any claim or consent to
the entry of any judgment that does not include as an unconditional term thereof
the giving by the claimant or the plaintiff to the Indemnified Party a release
from all liability in respect of such claim.
If the Indemnifying Party shall not have undertaken the
conduct and control of the defense of any Third Party Claim as provided above,
the Indemnifying Party shall nevertheless be entitled through counsel chosen by
the Indemnifying Party and reasonably acceptable to the Indemnified Party to
monitor the conduct or settlement of such claim by the Indemnified Party, and
the Indemnified Party shall provide the Indemnifying Party and such counsel with
such information regarding such Third Party Claim as either of them may
reasonably request (which
8
<PAGE> 9
request may be general or specific), but all costs and expenses incurred in
connection with such monitoring shall be borne by the Indemnifying Party.
(c) So long as the Indemnifying Party is contesting any such Third
Party Claim in good faith, the Indemnified Party shall not pay or settle any
such Third Party Claim. Notwithstanding the foregoing, the Indemnified Party
shall have the right to pay or settle any such Third Party Claim, provided that
in such event the Indemnified Party shall waive any right to indemnity therefor
by the Indemnifying Party, and no amount in respect thereof shall be claimed as
an Expense or a Loss under this subsection (c).
If the Indemnifying Party shall have undertaken the conduct
and control of the defense of any Third Party Claim as provided above, the
Indemnified Party, on not less than 30 days prior written notice to the
Indemnifying Party, may make settlement (including payment in full) of such
Third Party Claim, and such settlement shall be binding upon the Parties for the
purposes hereof, unless within said 30-day period the Indemnifying Party shall
have requested the Indemnified Party to contest such Third Party Claim at the
expense of the Indemnifying Party. In such event, the Indemnified Party shall
promptly comply with such request and the Indemnifying Party shall have the
right to direct the defense of such claim or any litigation based thereon
subject to all of the conditions of subsection (b) above. Notwithstanding
anything in this subsection (c) to the contrary, if the Indemnified Party, in
the belief that a claim may materially and adversely affect it other than as a
result of money damages or other money payments, advises the Indemnifying Party
that it has determined to settle a claim, the Indemnified Party shall have the
right to do so at its own cost and expense, without any requirement to contest
such claim at the request of the Indemnifying Party, but without any right under
the provisions of this subsection (c) for indemnification by the Indemnifying
Party.
SECTION 8.04. Procedures for Indemnification of Direct Claims. Any
claim for indemnification on account of an Expense or a Loss made directly by
the Indemnified Party against the Indemnifying Party and that does not result
from a third party claim shall be asserted by written notice from the
Indemnified Party to the Indemnifying Party specifically claiming
indemnification hereunder. Such Indemnifying Party shall have a period of 30
business days after the receipt of such notice within which to respond thereto.
If such Indemnifying Party does not respond within such 30 business-day period,
such Indemnifying Party shall be deemed to have accepted responsibility to make
payment and shall have no further right to contest the validity of such claim.
If such Indemnifying Party does respond within such 30 business-day period and
rejects such claim in whole or in part, such Indemnified Party shall be free to
pursue resolution as provided in SECTION 10.09.
ARTICLE IX
CONFIDENTIALITY AND NONDISCLOSURE
Licensee and Licensor acknowledge that the terms of this Agreement and
the Intellectual Property Rights licensed hereunder constitute confidential and
proprietary information (collectively "Confidential Information"), the
disclosure of which to, or use by, third parties will
9
<PAGE> 10
be damaging. Each party agrees to hold, and have its employees and agents hold,
any and all such Confidential Information belonging to the other in the same
manner as it protects its own confidential information of like kind, but in no
event shall it exercise less than due diligence and care, and to use the
Confidential Information only for purposes consistent with this Agreement. The
parties agree that irreparable harm can be occasioned to the other party by
disclosure of the Confidential Information in violation of the requirements of
this Article and therefore either party may seek to enjoin any actual or
threatened use, disclosure or compromise by the other party in contravention of
this ARTICLE IX. The foregoing shall not prohibit or limit Licensee's use of
information, including, but not limited to, ideas, concepts, know-how,
techniques and methodologies: (i) independently developed by Licensee after the
Effective Date without reference to the other party's Confidential Information;
(ii) acquired by Licensee from a third party without continuing restriction on
use; or (iii) which is or becomes, publicly available through no breach by
Licensee of this Agreement. In addition, Licensee may disclose the Confidential
Information to the extent that its disclosure is required by law, valid
subpoena, or court or government order, provided, however, that Licensee
provides prompt notice of such required disclosure to Licensor and Licensee
shall have made a reasonable effort to obtain a protective order or other
reliable assurance affording it confidential treatment and limiting its use
solely for the purpose for which the law or order requires.
10
<PAGE> 11
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Entire Agreement. This Agreement and the Reorganization
Agreement, including the Schedules and Exhibits referred to herein and therein
and the documents delivered pursuant hereto and thereto, constitute the entire
agreement between the parties with respect to the subject matter contained
herein, and supersede all prior agreements, negotiations, discussions,
understandings, writings and commitments between the parties with respect to
such subject matter.
SECTION 10.02. Successors and Assigns.
(a) Subject to the terms of (b) below, this Agreement shall be binding
upon and inure to the benefit of the parties hereto and thereto, respectively,
and their successors and permitted assigns, and the rights granted or duties or
obligations undertaken hereunder may be assigned, sold, sublicensed,
subcontracted or otherwise transferred by either party, provided that if a party
assigns, sells or otherwise transfers all or substantially all of its rights,
duties or obligations hereunder, it shall provide prior written notification
thereof to the other party.
(b) The rights granted to Licensee hereunder in the Intellectual
Property Rights designated in Exhibit 1 as "Nontransferable" may not be
assigned, sold, sublicensed, subcontracted or otherwise transferred by Licensee
without Licensor's prior written consent, except to an Affiliate of Licensee.
SECTION 10.03. Waiver. Any term or provision of this Agreement may be
waived, or the time for its performance may be extended, by the party or parties
entitled to the benefit thereof. Any such waiver shall be validly and
sufficiently given for the purposes of this Agreement if, as to any party, it is
in writing signed by an authorized representative of such party. The failure of
any party to enforce at any time any provision of this Agreement shall not be
construed to be a waiver of such provision, or in any way to affect the validity
of this Agreement or any part hereof or the right of any party thereafter to
enforce each and every such provision. No waiver of any breach of this Agreement
shall be held to constitute a waiver of any other or subsequent breach.
SECTION 10.04. Notices. All notices, requests, claims, demands and
other communications required or permitted hereunder shall be in writing and
shall be deemed given or delivered (i) when delivered personally, (ii) if
transmitted by facsimile when confirmation of transmission is received, (iii) if
sent by registered or certified mail, postage prepaid, return receipt requested,
on the third business day after mailing or (iv) if sent by private courier when
received; and shall be addressed as follows:
If to TSC, to:
11
<PAGE> 12
Technology Solutions Company
205 North Michigan Avenue
Suite 1500
Chicago, Illinois 60601
Attention: ______________
Telecopy: _______________
Facsimile: _____________
If to eLoyalty, to:
eLoyalty Corporation
[205 North Michigan Avenue]
[Suite 1500]
Chicago, Illinois 60601
Attention: _______________
Telecopy: ______________
Facsimile: ______________
or to such other address as such Party may indicate by a notice delivered to the
other Party.
SECTION 10.05. Partial Invalidity. If any term or provisions of this
Agreement shall be found to be illegal or unenforceable, then notwithstanding
such illegality or unenforceability, this Agreement shall remain in full force
and effect and such term or provisions shall be deemed to be deleted.
SECTION 10.06. Amendment. This Agreement shall not be amended, modified
or supplemented except by a written instrument signed by an authorized
representative of each of the parties.
SECTION 10.07. Execution in Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original
instrument, but all of which shall be considered one and the same agreement, and
shall become binding when one or more counterparts have been signed by and
delivered to each of the parties.
SECTION 10.08. Choice of Law and Forum. This Agreement shall be
governed by and construed and enforced in accordance with the substantive laws
(except for any otherwise applicable conflicts of law provisions) of the State
of Illinois and the federal laws of the United States of America applicable
therein, as though all acts and omissions related hereto occurred in Illinois.
Any lawsuit arising from or related to this Agreement shall be brought only in
the United States District for the Northern District of Illinois or the Circuit
Court of Cook County, Illinois. To the extent permissible by law, the parties
hereby consent to the jurisdiction and venue of such
12
<PAGE> 13
courts. Each party hereby waives, releases and agrees not to assert, and agrees
to cause its Affiliates to waive, release and not to assert, any rights such
party or its Affiliates may have under any foreign law or regulation that would
be inconsistent with the terms of this Agreement as governed by Illinois law.
SECTION 10.09. Dispute Resolution. Any and all disputes, controversies
or claims (whether sounding in contract, tort or otherwise) that may arise out
of or relate to, or arise under or in connection with, this Agreement, or the
transactions contemplated hereby (including all actions taken in furtherance of
the transactions contemplated hereby on or prior to the date hereof), shall be
subject to the dispute resolution procedures set forth in the Reorganization
Agreement.
SECTION 10.10. Relationship Of Parties. Nothing contained in this
agreement shall be construed to imply a joint venture, partnership, or
principal-agent relationship between the parties; and, except as provided
otherwise herein, neither party by virtue of this Agreement shall have any
right, power or authority, express or implied, to act on behalf of or enter into
undertaking binding the other party. This Agreement shall not be construed to
create rights, express or implied, on behalf of, or for the use of, any parties,
aside from Licensee and Licensor, and Licensee and Licensor shall not be
obligated, separately or jointly, to any third parties or any third party
beneficiaries by virtue of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their authorized representatives as of the date first above
written.
TECHNOLOGY SOLUTIONS COMPANY
By: ________________________________
[Name]
[Title]
ELOYALTY CORPORATION
By: ________________________________
[Name]
[Title]
13