Licensed&Developed Works Agreement

 

Exhibit 10.2

 

 

This Statement of Work (“SOW”) # 4906FL0032 adopts and incorporates by reference the terms and conditions of Licensed and Developed Works Agreement # 4900PC0033/PDSC-99-1146 (“Base Agreement”) between International Business Machines (“Buyer”) and Pacific Decision Sciences Corporation (“Supplier”). This SOW is effective beginning on 1 May 2006 and will remain in effect until terminated. Transactions performed under this SOW will be conducted in accordance with and be subject to the terms and conditions of this SOW, the Base Agreement, and any applicable Work Authorizations (“WAs”). This SOW is not a WA.

 

This SOW supersedes and replaces SOW # 4900PC0034/PDSC-99-9198 dated March 31, 1999 and all amendments thereto.

 

1.0   Scope Of Work

Under the terms of SOW 4906FL0029, Buyer licensed from Supplier a computer software program known as PDSC Service Management System, Version: 7.4 (Base Software) and all PDSC Service Modules currently installed at Buyer, including RF and Web Interfaces. This SOW describes the Services that will be provided by Supplier in support of implementing the Licensed Works into the SCM Project.

 

2.0   Definitions

The following definitions are applicable to this SOW and are in addition to or in place of, the definitions listed in Section 1.0 of the Base Agreement:

 

Strategic Call Management Application– (hereinafter “SCM”) means web-based Call Center application to support Buyer’s Global Service Delivery Process (“GSDP”) by improving customer service, reducing the dependency on multiple legacy environments, consolidating systems where appropriate, and enabling business changes to be introduced and delivered quickly on a global basis. The solution will introduce a service oriented architecture utilizing Buyer and Supplier services components.

 

3.0   Description Of Deliverables And Services

 

3.1      Supplier personnel, working in conjunction with Buyer personnel, will be provided to support the implementation of the SCM Project.

 

Buyer will supply project management and administration, testing, and a percentage of programming support while Supplier will provide programmers and system architects that will transfer knowledge of Supplier’s Licensed Works and Modules to Buyer’s personnel to help build self sufficiency and skill balance within Buyer’s personnel. Supplier personnel will provide professional services and support to Buyer in the areas of design, development, testing, maintenance, and training on the Licensed Works and Developed Works.

 

SCM project implementation is divided into three releases.

 

An External Design Document (“EDD”) will be produced for each SCM release that defines the functionality that will be built and delivered for each release, along with the deployment dates for each release.

 

SCM Project Implementation Support Fee
Buyer will commit to utilize a minimum of ten (10) personnel from Supplier. Additional resources may be added at the request of Buyer for the duration of the following development stages:

 

 

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Buyer requests that the following Supplier personnel be assigned, by name, to the SCM project implementation effort described herein: David Dorret, David Englund, John Musgrave, Mike King, Matt Deguzman, Liz Dorrett, Rajesh Amenon, Sonny Vo. Buyer reserves the right to reject the assignment of any individual Supplier may assign to this SOW for any reason.

 

It is estimated that these Supplier personnel will be required for 12 to 18 months from the Effective Date of this SOW for SCM implementation. During this timeframe, and at Buyer’s discretion for future efforts, the ten (10) committed personnel resources under this contract may be used for any other projects involving use of the Licensed Works within Buyer’s organization.

 

The fee for each Supplier resource (person) provided here under is * per month per person.

 

All Supplier resources will submit weekly timesheets to Buyer’s project managers for the various projects they are working on. The timesheets will include: Name, Project(s) worked on, Date range of timesheet, Hours worked by day, and Total hours for week. Travel by all Supplier resources for Buyer’s projects will be governed by Section 6.2 of this SOW and must be approved by Buyer prior to travel taking place. Supplier will submit all receipts to Buyer for approval prior to invoicing for travel expenses.

 

4.0   Supplier’s Responsibilities

4.1 In addition to delivering Deliverables and Services on schedule, Supplier will:

 

4.2   Supplier’s Use of Subcontractors

Supplier may subcontract Services to be performed hereunder. Notwithstanding this subsection, Supplier’s use of subcontractors will not relieve Supplier of the responsibility for the subcontractor’s performance, and Supplier’s obligations and responsibilities assumed under this Agreement will be made equally applicable to subcontractors. Buyer reserves the right to reject Supplier’s use of a subcontractor in performance of this Agreement for any reason.

 

4.3   Third Party Code Warranty

Supplier represents and warrants on an ongoing basis that, before entering into this SOW, Supplier has disclosed to Buyer in writing the existence of any third party code, including without limitation open source code and freeware, (“Third Party Code”) that is included in or is provided in connection with the Deliverables and that Supplier and the Deliverables are in compliance with all licensing agreements applicable to such Third Party Code. Supplier further represents and warrants on an ongoing basis that, 1) before including any Third Party Code in any modifications, new releases, or new versions of the Deliverables under this SOW, Supplier will disclose to Buyer in writing the existence of such Third Party Code and 2) modified Deliverables or new releases or new versions of the Deliverables including Third Party Code will be in compliance with all licensing agreements applicable to such Third Party Code. Supplier will not provide to Buyer any Deliverables or modifications to or new releases or versions of Deliverables, that include Third Party Code, unless Buyer has approved the inclusion of such Third Party Code.

 

* Confidential Treatment Requested

 

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5.0   Buyer’s Responsibilities

 

5.2     Acceptance Testing

5.2.1     Acceptance Testing of Developed Works

Buyer may commence acceptance testing, and perform such tests as Buyer deems appropriate to determine if:
a. the Developed Works meet the specifications described in the EDD;
b. the Developed Works execute repetitively within the environment defined by Buyer; and
c. Buyer can successfully execute to completion all functional and system test scenarios conducted by Buyer. Buyer’s testing does not relieve Supplier of its obligations under this Agreement.

 

5.2.2     Error Correction and Acceptance

In the event Buyer encounters any errors in the Developed Works during such testing, Buyer will notify Supplier and may provide Supplier with the test results and other available documentation of the errors. Notwithstanding anything that may be construed to the contrary, Buyer is under no obligation to identify any errors or to provide Supplier with notice of any errors. Within 30 days from Buyer’s notification of errors, Supplier will correct all such errors and resubmit the Developed Works to Buyer. Buyer will then restart its acceptance testing of the Developed Works. Upon Buyer’s successful completion of its acceptance testing, Buyer will provide notice to Supplier of its acceptance of the Developed Works. Acceptance of the Developed Works by Buyer does not relieve Supplier of any of its responsibilities under the Agreement, including but not limited to warranty responsibility, applicable quality requirements, infringement or product liability.

 

5.2.3     Waiver of Acceptance Testing

Buyer may, at its sole discretion, waive requirements for its acceptance testing of the Developed Works. Any such waiver must be in writing and signed by Buyer. Buyer’s testing does not relieve Supplier of its obligations under this Agreement. Buyer has no obligation to identify errors.

 

6.0   Payments

6.1     Payment Terms

The terms of payment are net 60 days either after receipt of Supplier’s valid invoice for Services.

 

6.2    Travel Expense Guidelines

Buyer will reimburse Supplier for the following travel expenses only, provided they are incurred in the performance of this Agreement and with Buyer’s prior written approval: (i) tolls, parking fees, taxis, buses or auto rentals fees for autos rented from a Buyer designated rental company; (ii) personal automobile use under the applicable automobile allowance plan, excluding normal commutation; (iii) air transportation at the economy, tourist or coach class rate for the most direct route of a scheduled airline; (iv) reasonable lodging charges commensurate with the average rates charged for the immediate area, not to exceed $125.00 per day; (v) reasonable and actual meal expenses up to $35.00 per day; (vi) necessary business calls made on Buyer’s behalf; (vii) reasonable tipping; (viii) reasonable valet and laundry charges if a trip extends beyond four (4) days. All reservations made by Supplier must be made through Buyer’s designated travel agency as specified by the Buyer Travel Expense Guidelines. Any exception to the Buyer Travel Expense Guidelines must be approved by Buyer prior to travel. Supplier must submit an invoice listing all travel expenses, and all applicable receipts for lodging, airline travel, rental cars or any other reimbursable expenditures to the Technical Coordinator listed in this SOW. Buyer will not reimburse Supplier for personal expenses.

 

7.0 Communications

All communications between the parties will be carried out through the following designated coordinators. All notices required in writing under this Agreement will be made to the appropriate contact listed below at the following addresses and will be effective upon actual receipt. Notices may be transmitted electronically, by registered or certified mail, or courier. All notices, with the exception of legal notices, may also be provided by facsimile.

 

 

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Business Coordinators
FOR SUPPLIER				FOR BUYER
Name		Mike Feder		Name		Mark Carey
Title		President		Title		SCM Project Executive
Address		400 Royal Palm Way		Address		3039 Cornwallis Rd
		Suite 410				RTP, NC 27709
		Palm Beach, FL 33480
Phone		561 ###-###-####		Phone		919 ###-###-####
Fax				Fax		919 ###-###-####
E-mail		***@***		E-mail		***@***
Legal Coordinators
FOR SUPPLIER				FOR BUYER
Name		Michael Krawitz		Name		Ron Leviner
Title		Executive VP, General Counsel		Title		Staff Attorney
Address		400 Royal Palm Way		Address		294 ROUTE 100 SOMERS,
		Suite 410				NY 10589
		Palm Beach, FL 33480
Phone		561 ###-###-####		Phone		914 ###-###-####
Fax				Fax		(Fax notice shall be valid only when verbal confirmation of receipt is obtained.)
E-mail		***@***		E-mail		***@***
Technical Coordinators
FOR SUPPLIER				FOR BUYER
Name		David Dorret		Name		David Nusbaum
Title		Chief Technology Officer		Title		SCM Architect
Address		180 South Prospect		Address		3605 HWY 52 N
		Suite 250				ROCHESTER MN 55901
		Tustin, CA 92780
Phone		(714) 832-2200 ext 52		Phone		507 ###-###-####
Fax				Fax		507 ###-###-####
E-mail		***@***		E-mail		***@***

 

8.0   On Premises Guidelines

Supplier will ensure that Supplier Personnel assigned to work on Buyer’s premises will comply with this Section

 

8.1 Access to Premises

Supplier will:

 

 

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Upon Buyer’s request, Supplier will provide documentation to verify compliance with this Subsection.

 

8.2   General Business Activity Restrictions

Supplier will ensure that Supplier Personnel assigned to work on Buyer’s premises:

 

8.3   Buyer’s Safety and Security Guidelines

Supplier will ensure that Supplier Personnel assigned to work on Buyer’s premises:

Supplier will promptly notify Buyer of any accident or security incidents involving loss of or misuse or damage to Buyer’s intellectual or physical assets; physical altercations; assaults; or harassment and provide Buyer with a copy of any accident or incident report involving the above. Supplier must coordinate with Buyer access to Buyer’s premises during non-regular working hours.

 

8.4   Asset Control

In the event Supplier Personnel has access to information, information assets, supplies or other property, including property owned by third parties but provided to Supplier Personnel by Buyer (“Buyer Assets”), Supplier Personnel:

 

8.5   Supervision of Supplier’s Personnel

Suppliers will provide consistent and effective supervision of its Personnel provided under this Agreement, at no additional cost to Buyer. Consistent and effective supervision shall include regular interaction and communication with Supplier’s Personnel either in person or through other effective means. Supplier’s supervisor shall be responsible for exercising full supervisory authority over all day-to-day employment relationship decisions relating to Supplier’s Personnel, including those decisions relating to: wages, hours, terms and conditions of employment,

 

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hiring, discipline, performance evaluations, termination, counseling and scheduling. Supplier’s supervisors responsible for each work location will be responsible to know that work location’s planned holiday (and other closing) schedules and the impacts all such schedules have on Supplier’s Personnel. Supplier will conduct orientation sessions with its Personnel before placement on an assignment with Buyer, during which orientation such Personnel will be told who their supervisor is and how that supervisor can be contacted. Supplier will, from time to time, ensure that all of its Personnel working under this Agreement continue to be aware of this information. Supplier shall also be responsible for training its Personnel that any employment related issues should be brought forward in the first instance to Supplier and not Buyer. Where such issues relate to actions which are alleged to have been taken by Buyer or Buyer’s Personnel, Supplier will notify Buyer immediately in order that appropriate investigative action can be taken. Notwithstanding any other language or agreement to the contrary, Buyer will not, and Supplier agrees that Buyer has no responsibility to approve any Supplier Personnel’s time sheets. If Buyer should review, sign and/or submit Supplier Personnel’s timesheets, whether manually or electronically, as part of Buyer’s billing verification processes, the parties acknowledge and agree that such review, signature and/or submittal shall in no way constitute concurrence or approval of such timesheets, nor create any other commitment or obligation on the part of Buyer to Supplier or Supplier Personnel.

 

9.0 Additional Provisions

The following are additional provisions that modify the referenced Sections of the Base Agreement as follows:

 

Section 1.0 – Definitions– Add the following definitions:

“Electronic Self-Help” means a process where Supplier electronically disables, removes, or otherwise prevents the use of its software product without the Buyer’s or Buyer’s Customer’s cooperation or consent. Electronic Self-Help could be done through electronic or other means (for example: remotely through “back doors” or hidden entrances in the software or through hidden shut-down commands in the software that can be activated by phone or in other ways).

 

“Taxes” means any and all applicable taxes, charges, fees, levies or other assessments imposed or collected by any governmental entity worldwide or any political subdivision thereof and however designated or levied on sales of Deliverables or Services, or sales, use, transfer, goods and services or value added tax or any other duties or fees related to any payment made by Buyer to Supplier for Deliverables and/or Services provided by Supplier to Buyer under or pursuant to this Agreement; exclusive, however, of any taxes imposed upon the net income or capital of Supplier, any taxes in lieu of such net income taxes and any other taxes which are to be borne by Supplier under law.

 

Section 7.0 – Ongoing Warranties– Add the following ongoing representations and warranties:
Supplier makes the following ongoing representations and warranties:

 

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Section 11.0 – Limitation of Liability – Add the following:

In no event will either party be liable for the respective actions or omissions of its Affiliates under this Agreement.

 

Supplier acknowledges and agrees that all WA’s or PA’s issued by Buyer’s Affiliate(s) are independent agreements between Supplier or Supplier Affiliate and the Buyer Affiliate. Buyer shall not be liable to Supplier or Supplier Affiliate(s) for any actions or inactions of any Buyer Affiliate(s) under a WA or PA, nor shall any actions or inactions by Buyer’s Affiliate(s) constitute a breach of the Agreement between Buyer and Supplier.

 

Section 14.0 – General – Add the following:

Supplier will be familiar and will strictly comply with all laws and regulations on bribery, corruption, and prohibited business practices. Supplier and its Affiliates have not and will not offer, promise or make or agree to make any payments or gifts (of money or anything of value) directly or indirectly to anyone for the purpose of influencing, or inducing anyone to influence decisions in favor of, Buyer or any of its Affiliates.

 

 

 

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