Maintenance Agreement - XImage and Sagem SA
MAINTENANCE AGREEMENT
BETWEEN
XIMAGE
AND
SAGEM S.A., DEPARTEMENT MORPHO SYSTEMES
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TABLE OF CONTENTS
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<S> <C> <C>
1. Definitions...................................................................3
2. Term of Agreement.............................................................4
3. Software Maintenance Services.................................................4
4. Performance of Services.......................................................4
5. Customer Obligations and Warranties...........................................5
6. Charges.......................................................................5
7. Non disclosure................................................................5
8. Response by XIMAGE............................................................6
9. Intervention on site..........................................................6
10. Return and Repair.............................................................7
11. Injunctive Relief/Termination.................................................7
12. Indemnification...............................................................7
13. Termination...................................................................7
14. Disclaimer of Warranty........................................................8
15. Limitations of Liability......................................................8
16. Arbitration...................................................................9
17. Force Majeure.................................................................9
18. Successors and Assigns........................................................9
19. Amendments....................................................................9
20. Entire Agreement and Waiver...................................................10
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This Agreement is entered into this 31 January, 1994 by and between SAGEM
S.A., Departement MORPHO Systemes whose address is 33, route de la Bonne Dame,
77300 FONTAINEBLEAU, FRANCE (hereinafter referred to as MORPHO) and XIMAGE
corporation whose address is 1050 North Fifth Street, SAN JOSE, California
95112 (hereinafter referred to as XIMAGE) for the Customer Support and
Software Maintenance.
WITNESSETH
WHEREAS, XIMAGE and MORPHO have signed the "ForceField PSS Agreement" for the
purchase of services and the use of Software referred to hereafter as the
ForceField PSS System.
WHEREAS, XIMAGE has granted to MORPHO a perpetual and non-exclusive license,
transferable only to the Kuwait Government and solely for use with the PSS to
be installed and used as a portrait storage system in connection with the
AFIS sold to the Kuwait Government in Kuwait.
1. DEFINITIONS
The terms defined in this Section shall have the meaning as follows:
FIRST LEVEL OF MAINTENANCE means MORPHO will require the Kuwait Government to
contact MORPHO maintenance personnel for all problems associated with the
installed Force Field PSS System. MORPHO will respond with fixes and/or
workarounds to keep the system operational. MORPHO personnel may document any
software problems and refer them to XIMAGE for additional fixes or patches.
SECOND LEVEL OF MAINTENANCE means if Morpho's personnel can not start or keep
the system operational because of software problems, XIMAGE should be
contacted to provide all documented and replicated software Errors. XIMAGE
will make best efforts to support Morpho by any means available. Such an
undertaking is made in the knowledge that a telecommunications line between
the site and XIMAGE may not be in existance.
PROGRAM means ForceField PSS software developed by XIMAGE including the
Sybase and Focus software and includes all software provided under the
Maintenance Agreement.
PROGRAM SPECIFICATIONS means the specifications published by XIMAGE for a
particular version of the Program (if no such specification is available,
then the relevant documentation for a particular version of the Program).
EFFECTIVE DATE shall mean the Date of Installation of the PSS in Kuwait, i.e.
December 10, 1993.
ERROR means any material failure to operate in accordance with the program
specifications delivered from the specifications appended to the base
agreement. Error includes malfunctions and defects.
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2. TERM OF AGREEMENT
XIMAGE's obligations hereunder shall become effective upon the
"Effective Date" and, unless sooner terminated as provided herein, shall
remain in full force and effect for at least one year thereafter. This
Agreement shall automatically renew for consecutive one (1) year terms
at XIMAGE's then prevailing rates at the end of each one (1) year term
unless either party gives at least sixty (60) days prior written notice
of the non-renewal of this Agreement.
3. SOFTWARE MAINTENANCE SERVICES
XIMAGE will provide to MORPHO during the term hereof "Software
Maintenance Services" which shall include remedial maintenance service
(i.e, error fixing and/or work arounds) for any significant error,
malfunction or defect (collectively in "Error") in the Software so that
the Software will operate in accordance with the specifications set
forth in the related documentation. Correction of Errors is subject to
MORPHO's prompt notification to XIMAGE of the nature and description of
the Error provided that the Error is not caused by the abuse, misuse or
neglect of the products by MORPHO. In addition, XIMAGE will provide the
following as additional Customer Support Services:
(a) telephone support as reasonably requested by MORPHO at the rate of
$100 per hour for all hours in excess of 40 hours in any one-year
term;
(b) on-site visits to MORPHO's sites as determined to be necessary by
Morpho for Error correction, unless error correction is normally
performed via Dial up from the XImage facility in San Jose;
(c) give title to all modifications and improvements to the PSS
Software which XIMAGE generally makes available to its other
customers (at no additional Charge) under standard software
maintenance agreements relating to the Software.
If MORPHO requests XIMAGE to perform any other services, the related terms
and conditions shall be based on further separate agreement between the
parties. This Agreement and the rights and duties contained herein are not be
deemed to cover maintenance services with respect to hardware. Such may be
decided in accordance with paragraph 9.
4. PERFORMANCE OF SERVICES
When XIMAGE provides Software Maintenance Services which require the use
of the hardware portion of equipment which utilizes the Software (the
"Equipment"), MORPHO shall make such Equipment available to XIMAGE at and
for reasonable times, and in no event will MORPHO charge XIMAGE for such
use of such Equipment. All Software Maintenance Services covered by the
Maintenance Charges will be performed during the regular business hours
of XIMAGE (Monday-Friday, exclusive holidays). If Software Maintenance
Services are performed outside regular business hours, MORPHO will pay
the additional charges, if any, as at XIMAGES then current charges.
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5. CUSTOMER OBLIGATIONS AND WARRANTIES
The obligations of XIMAGE to provide Software Maintenance Services are
subject to MORPHO using the Equipment in accordance with their
respective operating manuals and recommended procedures, and causing
proper and recommended Equipment Maintenance Services to be performed,
including selecting a site which complies with the environmental
requirements suggested by the manufacturer of the Equipment or XIMAGE
and utilizing appropriate back-up procedures with respect to the
Software and data.
6. CHARGES
The total annual maintenance charge amounts to US $24502 for the first
year of maintenance. MORPHO shall pay all charges under this Agreement,
including the total Annual Maintenance Charge, within thirty (30) days
after receipt of a valid invoice from XIMAGE. Thereafter, the then
applicable Annual Maintenance Charge shall be invoiced to, and paid by
MORPHO prior to the beginning of the next annual maintenance period. All
other charges under this Agreement shall be invoiced by XIMAGE and shall
be due and payable within thirty (30) days after receipt of the invoice.
The Annual Maintenance Charge includes all federal, state, county,
local, or other taxes arising in the United States or its states (or
other internal jurisdictions), but does not include all taxes arising
under any law other than that of the United States. MORPHO shall be
responsible for all taxes arising under the law of any jurisdiction
except the United States and its states (and other internal
jurisdisctions).
7. NON DISCLOSURE
Each party agrees to maintain in confidence what it knows or has reason
to know is regarded as confidential by the other party ("Confidential
Information"). The Confidential Information will include, but will not
be limited to, trade secrets, the structure, sequence and organization
of the program, marketing plans, blueprints, techniques, processes,
procedures and formulae. Each party will use the Confidential Information
solely to accomplish the purposes of the Agreement. Each party will not
disclose the Confidential Information to any person except its employees
or consultants to whom it is necessary to disclose the Confidential
Information for such purposes. Each party agrees that the Confidential
Information will be disclosed or made available only to those of its
employees or consultants who have agreed to receive it under termes at
least as restrictive as those specified in this Agreement. Each party will
use reasonable measures to maintain the confidentiality of the Confidential
Information, but not less than the measures it uses for its confidential
information or similar type. Each party will immediately give notice to the
Disclosing Party of any unauthorized use or disclosure of the Confidential
Information. The Recipient agrees to assist the disclosing party in
remedying any such unauthorized use or disclosure of the Confidential
Information. This obligation will not apply to the extent that the
Recipient can demonstrate:
(a) the disclosed information at the time of disclosure is part of the
public domain;
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(b) the disclosed information became part of the public domain, by
publication or otherwise, except by breach of the provisions of this
Agreement;
(c) the disclosed information can be established by written evidence to
have been in the possession of the Recipient at the time of
disclosure;
(d) the disclosed information is received from a third party without
similar restrictions and without breach of this Agreement; or
(e) the disclosed information is required to be disclosed by a
government agency to further the objectives of this agreement, such
as to obtain permission to distribute the Program of by a proper
court of competent jurisdiction; provided, however, that the
Recipient wil use its best efforts to minimize the disclosure of
such information and will consult with and assist the Disclosing
Party in obtaining a protective order prior to such disclosure.
8. RESPONSE BY XIMAGE.
XIMAGE will maintain a 24 hour a day reporting facility to accept calls
from MORPHO. XIMAGE agrees to respond to any telephone call made, within
30 minutes.
9. INTERVENTION ON SITE.
In the event that MORPHO require the attendance of an XIMAGE engineer on
site, XIMAGE shall upon such a demand (either written or verbal) make
their best efforts to dispatch the engineer as expeditiously as
possible. XIMAGE undertake to have an engineer on site in Kuwait within
72 hours from the time the request was made, exclusive of the time
required to arrange for travel and obtain the required documents, and
the actual travel time itself.
In such cases where on site intervention is required MORPHO shall pay
for all travel expenses (Business Class), hotel accomodation and
reasonable subsistence. XIMAGE shall charge for the time of the engineer
only when he/she is on site or in exceptional circumstances when away
from the site but directly involved in work connected with the PSS.
XIMAGE will not charge for travel time.
All interventions on site are subject to a minimum total charge of
$2,000. Hourly rate for intervention is $125.00 (one hundred and twenty
five Dollars).
Following any intervention on site XIMAGE shall provide a full written
technical report to MORPHO.
XImage is not required to send an engineer to the Kuwait site if either
active or potentially pending hostilities exist in the region, and a
reasonable person might fear the possibility of bodily harm.
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10. RETURN AND REPAIR
MORPHO may, at its option, return equipment to XIMAGE for repair. XIMAGE
will make its best efforts to liaise with the supplier of the equipment
and to expeditiously repair and return the equipment. XIMAGE reserves the
right to charge an administration fee of $100 per shipment in such cases.
11. INJUNCTIVE RELIEF/TERMINATION
MORPHO acknowledges and agrees that any violation of the provisions of
Section 7 herein by MORPHO will result in irreparable harm to XIMAGE and
that money damages would provide inadequate remedy. Accordingly, in
addition to any other rights and remedies available to XIMAGE hereunder
or at law, XIMAGE shall be entitled to injunctive or other equitable
relief to restrain any such violation and to such other and further
relief as a court may deem proper under the circumstances. In addition
to any other rights of XIMAGE hereunder, the rights granted MORPHO to
use the Software by license or otherwise may be terminated by XIMAGE for
any material breach of Section 7 upon written notice given to MORPHO and
MORPHO shall return to XIMAGE all of the Software.
12. INDEMNIFICATION
MORPHO hereby indemnifies and holds XIMAGE harmless from any and all
claims, suits, actions and procedures brought or filed by third parties
and from all damages, penalties, losses, costs and expenses (including
without limitation, attorney's fees) arising out of, or related to, any
act or omission of MORPHO and its employees or agents in connection with
MORPHO's obligation herein.
XIMAGE hereby indemnifies and agrees to hold MORPHO harmless from any
claim of any third party that any of the Software infringes any United
States patent, copyright, trademark or other property right held by a
third party provided that XIMAGE is notified promptly by MORPHO of any
such claim (including any threatened claim) and XIMAGE shall have had
sole control of the defense with respect to same (including the
settlement of such claim). The foregoing indemnification by XIMAGE shall
not apply with respect to any claim based, in whole or part, on any
modification of the Software made by any person other than XIMAGE.
13. TERMINATION
Without prejudice to any other of its rights or remedies, either party
may elect to terminate the rights and obligations contained in this
Agreement:
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(a) Upon sixty (60) days' written notice if the other party has failed
to perform any material obligation required to be performed by it
pursuant to this Agreement and such failure has not been cured
within such a sixty (60) day period, or
(b) Upon sixty (60) days' written notice if the other party has failed
to make timely payment of any amounts required to be paid hereunder,
or
(c) Immediately, (i) if a petition in bankruptcy has been filed by or
against the other party, (ii) if the other party has made an
assignment for the benefit of creditors, (iii) if a receiver has
been appointed or applied for by the other party, or (iv) if the
other party has admitted in writing its inability to pay its debts
as they become due and payable.
14. DISCLAIMER OF WARRANTY
XIMAGE MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED
(INCLUDING WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE) WITH RESPECT TO THE SERVICES, SOFTWARE OR DOCUMENTS PROVIDED
(OR TO BE PROVIDED) HEREUNDER.
15. LIMITATIONS OF LIABILITY
MORPHO agrees that XIMAGE's total liability to MORPHO for any damages
suffered in connection with, or arising out of, this Agreement or
MORPHO's use of any documentation, product or service provided (or to be
provided) hereunder, regardless of whether any such liability is based
upon contract, tort or other basis, shall be limited to an amount not to
exceed the basic Monthly Maintenance Charges, for a sixty (60) day term
under this Agreement.
IN NO EVENT SHALL, XIMAGE BE LIABLE TO MORPHO FOR ANY INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING WITHOUT
LIMITATION, DAMAGES ARISING FROM LOSS OF BUSINESS, DATA, PROFITS OR
GOODWILL) INCURRED OR SUFFERED BY MORPHO IN CONNECTION WITH, OR ARISING
OUT OF, THIS AGREEMENT OR MORPHO'S USE OF ANY DOCUMENTATION OR SOFTWARE
OR SERVICES PROVIDED, OR TO BE PROVIDED, HEREUNDER, EVEN IF XIMAGE HAS
BEEN APPRISED OF THE LIKELIHOOD OF THE SAME. NO ACTION, REGARDLESS OF
FORM, RELATED TO TRANSACTIONS OCCURRING UNDER, OR CONTEMPLATED BY, THIS
AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER
THE CAUSE OF ACTION HAS ACCRUED.
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16. ARBITRATION.
Except as provided in Section 8 herein, in the event of any dispute or
controversy between the parties hereto arising out of or relating to
this Agreement or any transaction contemplated hereunder, such dispute
or controversy shall be submitted to arbitration under the Commercial
Rules of Arbitration of the American Arbitration Association sited in
Washington State, USA for decision in any such matter in accordance with
the then applicable rules of the American Arbitration Association or any
successor organization. The determination of the arbitrators shall not
be subject to judicial review, provided however, that any award or
determination rendered by the arbitrators may be enforced any court of
jurisdiction.
17. FORCE MAJEURE.
XIMAGE shall not be liable for any failure or delay in performing its
obligation hereunder due to any cause beyond its reasonable control,
including without limitation, fire, accident, acts of public enemy, war,
rebellion, labor dispute or unrest, insurrection, sabotage,
transportation delays (other than administrative oversights), shortage
of raw material, energy or machinery, acts of God, government or the
judiciary.
18. SUCCESSORS AND ASSIGNS
The interests of MORPHO in this Agreement are personal and shall not be
assigned, transferred, shared or divided in any manner by MORPHO without a
prior written consent of XIMAGE. Subject to the foregoing, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto
and their heirs, representatives, successors and permitted assignees.
19. AMENDMENTS
No supplement, modification or amendment of any term, provision or
condition of this Agreement shall be binding or enforceable unless
executed in writing by the parties hereto.
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20. ENTIRE AGREEMENT AND WAIVER
This Agreement contains the entire agreement between the parties hereto
and supersedes all prior contemporaneous agreements, arrangements,
negotiation and understandings between the parties hereto, relating to the
subject matter hereof except any prior or contemporaneous Software licenses
between the parties. There are no other understandings, statements, promises
or inducements, oral or otherwise, contrary to the terms of this Agreement.
No representations, warranties, covenants or conditions, express or implied,
whether by statute or otherwise, other than as set forth herein have been
made by any party hereto. No waiver of any term, provision, or condition of
this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be, or shall constitute, a waiver of any other
provision hereof, whether or not similar, nor shall such waiver constitute a
continuing waiver, and no waiver shall be binding unless executed in writing
by the party making the waiver.
[Illegible], 31 January, 1994
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/s/ [Illegible] /s/ [Illegible]
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XIMAGE SAGEM
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