CORPORATE SOFTWARE LICENSE AGREEMENT
BETWEEN THE BOEING COMPANY AND TMSSEQUOIA INC.
Table of Contents
RECITALS
1. DEFINITIONS ....3
2. TERMS AND CONDITIONS ....5
3. DELIVERY AND RISK OF LOSS ....5
4. INSTALLATION ....7
5. ACCEPTANCE ....7
6. PRICES AND PAYMENT ....7
7. TAXES ....8
8. LICENSE ....8
9. SOURCE CODE ....11
10. EVALUATIONA AND TEST SOFTWARE ....13
11. WARRENTIES ....14
12. GENERAL PERFORMANCE ....15
13. SUPPORT SERVICES ....15
14. PROPRIETARY INFORMATION ....18
15. INFRINGEMENT ....20
16. PREMISES INDEMNIFICATION ....21
17. INSURANCE ....22
18. TERMINATION FOR CONVENIENCE ....23
19. CANCELLATION FOR DEFAULT ....23
20. DELAYS ....24
21. COMPLIANCE ....24
22. RECORDS AND AUDIT ....24
23. PROTECTION OF PROPERTY ....25
24. NOTICES ....25
25. RELATIONSHIP OF THE PARTIES AND THEIR EMPLOYEES ....25
26. DISASTER RECOVERY ....26
27. GENERAL PROVISIONS ....27
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CORPORATE SOFTWARE LICENSE AGREEMENT
Effective January 11, 2000, The Boeing Company ("Boeing"),
a Delaware ---------------
corporation, acting through its division, Boeing Shared Services
Group, and TMS, Inc. ("Supplier"), an Oklahoma corporation, agree to
the following terms and conditions.
RECITALS
A. Boeing and Supplier desire to establish now the terms and
conditions under which they will do business in the
future in order to expedite the placement and
fulfillment of orders.
B. Boeing and Supplier have specifically negotiated
these terms and
conditions with the express intent that they apply
to each order placed by Boeing with Supplier during
the term hereof.
NOW, in consideration of the recitals, mutual promises, and
covenants contained herein, the parties do agree as follows:
AGREEMENT
1. DEFINITIONS
As used herein, the following terms, when capitalized, shall
have the following meanings:
"The Boeing Company" is defined to include all current or futue
locations of The Boeing Company and any of its affiliates,
divisions, or current or future wholly owned subsidiaries,
including but not limited to McDonnell Douglas Corporation,
Douglas Aircraft and Boeing North American.
"Agreement" means these terms and conditions, each and every
Purchase Contract, all Exhibits now or hereafter made part of
this Agreement, which are incorporated by this reference, and
any other requirements or provisions attached to, incorporated
into, or otherwise specified in these terms and conditions or
any Purchase Contract.
"Authorized Boeing Representative" means the representative of
Boeing Shared Services Group-Puget Sound, Supplier Management &
Procurement or any other Boeing Materiel department who is
authorized by Boeing to act on behalf of Boeing in business
transactions with Supplier.
"Critical Program Error" means any Program Error or Key,
whether or not known to Boeing or any of its subsidiaries,
which has or may have substantial adverse impact on the
operations of Boeing or any of its subsidiaries or on use of
the Goods.
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"Documentation" means user manuals for the Goods, all addenda,
corrections, and new editions of these materials, and any other
materials, in any form, that Supplier customarily provides to
end-users of the Goods. Documentation includes, without
limitation, all of the published specifications for the Goods,
as of the date the applicable Purchase Contract takes effect.
"Goods" means all of the Licensed Software, all of the services
performed under the clause entitled "Support Services," and any
other services related to the Licensed Software.
"Key" means any key, node lock, time-out, or other function,
whether implemented by electronic, mechanical, or other means,
which restricts or may restrict exercise of any of the licenses
granted under this Agreement, based on residency on certain
computing equipment, frequency or duration of use, or other
limiting criteria.
"Embodiment" or "Embodiment of the Intellectual Property" means
the Licensed Software and any corrections, updates,
modifications, revisions, or enhancements of the Licensed
Software developed during the term of this Agreement, in both
object code and source code form, and all flow charts, logic
diagrams, programmers' notes, user manuals, listings, and such
other material necessary for the use, upkeep, maintenance, and
modification of all or any portion of the Licensed Software.
Embodiment includes, without limitation, the algorithms,
specifications, or other code or information required to
"unlock," remove, or disable any Key.
"Licensed Software" means the Program and its Documentation.
"Normal Working Hours" means all or any portion of Supplier's
normal prime shift period, Monday through Friday.
"Program" means each and every copy of the computer program or
programs, and all corrections, updates, new releases, and new
versions of such program(s), if any, ordered under this
Agreement, in any form, whether object or source code.
"Program Error" means code in any Program or information
contained in any Documentation, which makes the Licensed
Software inoperable, or which produces unintended results or
actions, or which produces results or actions other than those
described in the Documentation or this Agreement. Program
Error includes, without limitation, any Critical Program Error.
"Purchase Contract" means Boeing's written order or change
order to Supplier, which references this Agreement, for the
delivery of Goods.
"Site" means the entity or geographical location specified in
the Purchase Contract at which the Goods will be installed and
used under this Agreement. If "Site" in the Purchase Contract
is identified as The Boeing Company, the definition of The
Boeing Company in this Agreement applies.
"Subcontractor" means any subcontractor, at any tier, or any
other third party which performs any of Supplier's obligations
under this Agreement.
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"Warranty Period" means the ninety (90) days after acceptance
of the Goods and any subsequent period during which Supplier
performs under the clause entitled "Support Services."
"Version Release" means any Version of the Licensed Software
that provides one or more of the following: (i) major new
software applications or utilites, (ii) significant
enhancements to previously released applications or utilites,
and/or (iii) support for new hardware or or software
architecture. The version number of a Version Release is
designated by the first digit of its release number (i.e.
Licensed Software Version 1.0 designates the first Version
Release of the "Licensed Software"."Upgrade Release" means any
version of the Licensed Software or a portion thereof for the
purpose of providing one or more of the following; (i)
enhancements to previously released applications or utilities,
and/or (ii) support for new hardware or software architecture.
The version number of an Upgrade Release is designated by the
second digit of its release number (i.e. License Software 2.1
designates the first Upgrade Release to the second Version
Release of the Licensed Software.)
"Update Release" means any version of the Licensed Software or
a portion thereof for the purpose of providing one or more of
the following; (i) Error corrections, and/or support for new
hardware or software architecture. The version number of an
Update Release is designated by the third or greater digit of
its release number (i.e. License Software 2.11 designates the
first Update Release of the first Upgrade Release to the second
Versions Release of the Licensed Software".)
2. TERMS AND CONDITIONS
a. Terms and Conditions. This Agreement shall apply to all
copies of the Licensed Software provided to Boeing, whether by
Supplier or any of its authorized distributors, dealers, or
agents. These terms and conditions shall be perpetual unless
earlier terminated in accordance with the terms hereof or by
the mutual written consent of the parties. These terms and
conditions shall be incorporated into every Purchase Contract
described in the paragraph entitled "Orders" automatically and
without further formalities, as of the date the Purchase
Contract takes effect.
b. Orders. Goods may be ordered on the terms and conditions of
this Agreement solely by an Authorized Boeing Representative on
a Purchase Contract. Each Purchase Contract will be effective
upon written acknowledgment by Supplier or commencement of
performance by Supplier. Opening of a software package or the
performance of any other act which would otherwise constitute
acceptance of terms and conditions in Supplier's end user
agreement shall have no effect whatsoever. Each Purchase
Contract shall specify:
1) the Licensed Software ordered and the media on which it
is to be provided;
2) the price; and
3) the delivery schedule
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c. Objection. Except for the terms set forth in the paragraph
entitled "Orders," neither party shall be bound by, and each
specifically objects to, any term or condition which is
different from or in addition to the provisions of these terms
and conditions, unless such different or additional term or
condition is accompanied by an express reference to the
inconsistent term in these terms and conditions, or expressly
waives the prohibition of different or additional terms in this
paragraph, and is in writing signed by the party to be
obligated. Such a modification, however, will apply only to
the transaction covered by the Purchase Contract, and has no
effect whatsoever on the terms of this Agreement or the order
of precedence applicable to any other transactions under this
Agreement.
d. Order of Precedence. In the event of any inconsistency within
or relating to this Agreement, the following order of
precedence will apply:
1) Each Purchase Contract.
2) These terms and conditions.
3) The specifications, technical descriptions,
statements of work, schedules, drawings, and
designs prepared by or at the direction of Boeing.
4) The specifications, technical descriptions,
statements of work, schedules, drawings, and
designs, other than those described in
subparagraph (3), prepared by Supplier, including,
without limitation, those contained in Supplier's
proposal and any correspondence or statements made
by Supplier leading up to contract award.
3. DELIVERY AND RISK OF LOSS
a. Delivery. Unless the Purchase Contract specifies a different
delivery point, all deliveries under this Agreement shall be
F.O.B. destination. Title and risk of loss of all of the Goods
except the Program shall pass to Boeing on delivery. Only risk
of loss, not title, of the Program shall pass to Boeing on
delivery.
b. Delivery Schedule. Shipment and delivery under this Agreement
shall be strictly in accordance with the quantities and schedules
specified in the Purchase Contract and with the other
requirements of this Agreement. Supplier shall promptly notify
Boeing in writing of any delay in delivery, the reasons
therefore, and the actions being taken by Supplier to overcome or
minimize the delay. If requested by Boeing, Supplier shall, at
Supplier's expense, ship via air or other fast transportation to
avoid or minimize the delay to the maximum extent possible.
c. Packing and Shipment. Supplier shall prepare and pack the Goods
to prevent damage and deterioration and comply with carrier
tariffs. Charges for preparation for shipment (including packing
and crating) are included in the price unless separately
specified in the Purchase Contract. Supplier shall not include
vermiculite or other hazardous substance in any packing material
included with the Goods.
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d. Returns. All returns of rejected or defective Goods, and the
shipment of repair or replacement parts for the Goods, shall be
at Supplier's risk and expense.
e. Media. The Licensed Software shall be delivered on the media
specified in the Purchase Contract. If no media is specified,
Supplier will deliver the Licensed Software on the media that
Supplier customarily provides to end-users of the Goods.
4. INSTALLATION
a. Site Preparation. Prior to delivery of the Goods, Boeing shall
prepare each Site in accordance with instructions provided by
Supplier at least thirty (30) days prior to delivery, if
appropriate.
b. Installation. Unless otherwise specified in the Purchase
Contract, Boeing shall install the Goods at each Site, using its
own tools, equipment, and materials. Supplier will install the
Goods if any special tools, equipment or materials are required
at no expense to Boeing.
c. Secure Facility. If the Goods are to be installed at a secure
facility, Supplier shall:
1) Prior to beginning the installation work provide Boeing
with a list (including description quantity and serial
numbers) of Supplier's tools and equipment to be used in the
installation work.
2) Upon completion of the installation work but prior to
removal of such tools and equipment from Boeing premises
notify Boeing of the removal
3) Comply strictly with written direction from Boeing
specifying the schedule and manner for removal.
5. ACCEPTANCE
a. Acceptance. Acceptance of the Goods shall occur when the Goods
meet all of the requirements of this Agreement, but in no event
later than thirty (30) days after installation, unless Boeing has
requested an extension for a commercially reasonable period of
time for acceptance testing.
b. Conditions. Acceptance of the Goods is subject to inspection and
acceptance testing by Boeing in accordance with this Agreement.
c. Acts Not Constituting Acceptance. Neither trial use nor testing
of the Goods incremental or final payment nor passage of title
constitutes acceptance or prejudices Boeing's right to reject
acceptance of all or any portion of the Goods.
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6. PRICES AND PAYMENT
a. Price. Any price specified in the Purchase Contract for the
purchase of Goods is a firm fixed price. Any price specified
in the Purchase Contract for the purchase of a license to any of the
Licensed Software is for a fully paid-up perpetual license under the
clause entitled "License" and for a fully paid-up contingent source
code license under any clause entitled "Source Code."
b. Payment. Supplier shall issue a separate invoice for each .
delivery. The invoice however shall not be issued before
shipment. Payment will be mailed thirty (30) days after receipt
of a correct invoice. If the Goods have not been accepted by the
close of this period payment will be made
promptly after acceptance of the Goods. For purposes of prompt
payment discounts if any the payment due date will be computed
from acceptance or receipt of a correct invoice whichever is
later to the date Boeing's check is mailed or otherwise tendered.
Supplier will prominently display notice of any applicable prompt
payment discounts on the invoice. Unless taxes or other
applicable charges are itemized any discount may be taken on the
full amount of the invoice
7. TAXES
All taxes, including, but not limited to, federal, state, and
local income taxes; franchise taxes; federal, state, and local
sales and use taxes (except sales or use taxes imposed on account
of a transaction made under this Agreement); gross receipts
taxes; and property taxes, are deemed to be included in the price
of the Goods. If state or local sales or use tax, valueadded
tax, or custom duty tax is applicable to any of the Goods, it
shall be so noted on the Purchase Contract, and Supplier shall
bill the tax separately on its invoice.
8. LICENSE
a. Grant. With respect to all copies of the Program in object
code form, and all copies of the Documentation in any form,
Supplier hereby grants and shall grant to Boeing and its
subsidiaries and the nonBoeing entities (users) requiring use
of the Program. a nonexclusive, perpetual, worldwide license
to:
1) Use the Program on any computing equipment within The
Boeing Company. This use right includes the right to
share use of the Program by multiple central processing
units or by multiple users, provided Boeing tenders the
applicable license fee, if any, to Supplier. If the
anticipated number of users of the Program will exceed the
number of licenses purchased from Supplier with respect to
such copies ("Licenses"), Boeing shall have a reasonable
mechanism or process in place to monitor that the number
of copies of software installed does not exceed the total
number of Software Licenses purchased. If the Purchase
Contract specifies "Site License" no additional license
fee is required.
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2) Transfer the Program between computing equipment. This
transfer right includes the right to transfer any copy of
the Licensed Software between computing equipment at no
additional cost.
3) Make additional copies of the Licensed Software as
reasonably necessary for backup or archival purposes, or
for benchmark or other temporary testing.
4) Combine the Program with one or more other programs,
provided any portion of the Program involved continues to
be subject to the terms and conditions of this Agreement.
5) Make, or have made, as many additional copies of the
Licensed Software as may be required to satisfy Boeing
requirements within the Site, provided the Purchase
Contract specifies "Site License."
6) Change the form of the Documentation. This conversion
right includes the right to edit and reformat any of the
Documentation. It also includes the right to convert any
of the Documentation into machine-readable form, whether
for on-line or other kinds of electronic access.
7) Make, or have made, additional copies of and use the
Licensed Software, whether at the Site or other locations,
for the duration of any of the trigger events which give
rise to a source license under any clause entitled "Source
Code,". Provided and to the extent this contingent
reproduction right is exercised, the copies of
Licensed Software made under it are, and thenceforth will
be, covered by the license granted under this Agreement.
8) This license includes the right to authorize employees or
agents of Boeing suppliers or subcontractors who are
performing work for Boeing on Boeing premises to perform
any of the activities described in subparagraphs (1)
through (7) above.
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9) Boeing entities (users): Any external non Boeing users
requiring access to the Program in support of a Boeing
Project, must accept and agree to Suppliers end user
license agreement.. Supplier will provide the end user
license agreement to Boeing. Boeing will distribute the
Program. Boeing will distribute the Supplier end user
license agreement either as part of an installation
process of the Program or by any other means, that require
the displaying and accepting of Suppliers end user license
agreement by the non Boeing user, prior to access to the
Program.b. License of Prior Releases or Versions of
Licensed Software. Supplier hereby grants Boeing the
right and option to license a release or version of the
Licensed Software which it has previously licensed, is
other than the current release or version, and is no
longer available from Supplier. This option may be
exercised by Boeing through issuance of a Purchase
Contract, specifying the prior release or version and the
number of copies, whereupon Supplier hereby grants and
shall grant Boeing the right to make, or have made, as
many additional copies of the Licensed Software as may be
required to satisfy Boeing requirements for the prior
release or version of the Licensed Software, provided
Boeing tenders the applicable license fee for each copy to
Supplier.
c. Surplus or Disposal. No license granted under this
Agreement is transferable except to another party in
connection with the surplus or disposal of any
computing equipment, provided the transferee agrees to
assume and comply with all of Boeing's obligations
under this Agreement with respect to the Licensed
Software involved or has a license agreement with
Supplier covering the Licensed Software.
d. Object Code. Boeing is not obligated to keep the Licensed
Software in object code or written form confidential. Nothing
in this Agreement is intended to establish, or should be
construed as establishing, any kind of confidential
relationship between Boeing and Supplier with respect to the
Licensed Software in object code form, regardless of any
markings, screen displays, or other notices given by Supplier
at any time. Boeing shall refrain, however, from any reverse
compilation, disassembly, or other attempt to obtain the
Licensed Software in source code form, except in accordance
with any clause entitled "Source Code."
e. No Restrictions. Except for the functions and features
expressly disclosed in the Documentation, Supplier represents
and warrants that the Program:
1) Contains no hidden files.
2) Will not replicate, transmit, or activate itself without
control of a person operating the computing equipment on
which it resides.
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3) Will not alter, damage, or erase any data or computer
programs without control of a person operating the
computing equipment on which it resides.
4) Supplier's Commerically Off The Shelf Licensed Software
(COTS) contains license control mechanisms, (Keys),
however, any distribution of the Licensed Software to
Boeing shall contain settings that disable any such
license control mechanisms (Keys).
Provided and to the extent the Program has any of the
foregoing attributes, Supplier further represents and
warrants that this Agreement and the Documentation
together provide Boeing with the algorithms,
specifications, and other code or information required to
exercise any license granted under this Agreement without
restriction. In the event Supplier breaches either of
these warranties for any reason, and fails to cure the
breach within the first six hours of its normal prime
shift period, Monday through Friday, following receipt of
Boeing's deficiency notice, Boeing may reverse compile,
disassemble, or otherwise obtain such algorithms,
specifications, other code, or information from the
Licensed Software or any other program materials, and then
may use them to conform or restore the Licensed Software
to the condition first warranted under subparagraphs (1)
(4) inclusive.
Misuse of Licensed Software. In the event Supplier has knowledge, or
has reason to believe, that Boeing is using the Licensed Software
beyond the scope of the license granted under this Agreement, Supplier
shall notify Boeing of the alleged misuse, in writing, in accordance
with the clause entitled "Notices." Upon receipt of such notice, or in
the event Boeing itself has reason to believe that misuse of the
Licensed Software may be occurring, Boeing shall promptly investigate
the alleged misuse, and shall destroy any unauthorized copies of the
Licensed Software, or submit a written request to Supplier for
authorization to continue using some or all of them, and in either
case pay any license fees owed for such copies. Boeing shall provide
Supplier with a written report which summarizes the results of
Boeing's investigation into the alleged misuse and what actions Boeing
took to correct it. THIS IS SUPPLIER'S SOLE AND EXCLUSIVE REMEDY FOR
MISUSE OF THE LICENSED SOFTWARE SO LONG AS BOEING PERFORMS ITS
INVESTIGATION AND MAKES PAYMENT TO SUPPLIER IN A TIMELY
FASHION.9.SOURCE CODE
a. Contingent Source License. Supplier hereby grants and shall
grant Boeing and its subsidiaries a nonexclusive perpetual,
worldwide source code license in and to the Licensed Software,
subject to the terms and conditions set forth in this clause.
b. Boeing's Rights Prior to Rejection. Unless and until
Supplier's trustee in bankruptcy rejects this Agreement as an
executory contract, Boeing shall have the following rights and
license with respect to any Program then covered by the clause
entitled "Support Services."
(1) Boeing may request delivery of, and Supplier or its
trustee shall deliver, the Embodiment of the Intellectual
Property upon the occurrence of one or more of the
trigger events described in the paragraph entitled
"Trigger Events" of this clause. If the trigger event
occurs solely on account of a Key, however, the request
for and delivery of the Embodiment shall be limited to
the algorithms, specifications, or other code or
information required to "unlock," remove, or disable the
Key.
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(2) Provided and to the extent Supplier fails to deliver
those portions of the Embodiment that are Key-related
within the first eight (8) Normal Working Hours after
receipt of any delivery request made under subparagraph
(1) in connection with a Key, or fails to deliver the
entire Embodiment within the first twenty-four (24)
Normal Working Hours after receipt of any other delivery
request made under subparagraph (1), Boeing may reverse
assemble, decompile, or otherwise reverse engineer all or
any portion of the Embodiment from any copy of the
Licensed Software then in its possession.
(3) Boeing may use, copy, compile, and prepare derivative
works based on all or any portion of the Embodiment thus
obtained in connection with continued exercise of the
license granted under the clause entitled "License,"
including, without limitation, correction of Program
Errors.
c. Boeing's Rights After Rejection. As of rejection of
this Agreement as an executory contract by Supplier's
trustee in bankruptcy, Boeing shall have the following
rights and license with respect to any Program,
regardless of whether it is then covered by the clause
entitled "Support Services."
(1) Boeing may request delivery of, and Supplier or its
trustee shall deliver, the Embodiment of the Intellectual
Property upon the occurrence of one or more of the
trigger events described in the paragraph entitled
"Trigger Events" of this clause. If the trigger event
occurs solely on account of a Key, however, the request
for and delivery of the Embodiment shall be limited to
the algorithms, specifications, or other code or
information required to "unlock," remove, or disable the
Key.
(2) Provided and to the extent Supplier fails to deliver
those portions of the Embodiment that are Key-related
within the first eight (8) Normal Working Hours after
receipt of any delivery request made under subparagraph
(1) in connection with a Key, or fails to deliver the
entire Embodiment within the first twenty-four (24)
Normal Working Hours after receipt of any other delivery
request made under subparagraph (1), Boeing may reverse
assemble, decompile, or otherwise reverse engineer all or
any portion of the Embodiment from any copy of the
Licensed Software then in its possession.
(3) Boeing may use, copy, compile, and prepare derivative
works based on all or any portion of the Embodiment thus
obtained in connection with (i) continued exercise of the
license granted under the clause entitled "License,"
including without limitation correction of any errors,
whether or not Program Errors, and (ii) modification or
enhancement of the Program.
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d. Trigger Events. The license granted under this clause is
granted and vested as of the effective date of this Agreement
and takes effect automatically upon the occurrence of the
following events:
(1) With respect to any Program covered by the clause
entitled "Support Services," Supplier fails to correct a
Critical Program Error, despite response to the Boeing
trouble report pursuant to that clause.
(2) With respect to any Program, whether or not covered by
the clause entitled "Support Services," Supplier breaches
any of the warranties set forth in the paragraph entitled
"No Restrictions" of the clause entitled "License" or in
the paragraphs entitled "Software Warranties" or
"Support" of the clause entitled "Warranties," and fails
to cure the breach in a timely fashion. Provided and to
the extent the breach is caused by a Key, however, the
cure period will be the first six (6) Normal Working
Hours after receipt of Boeing's deficiency notice. Any
business interruption, whether temporary or permanent,
resulting in the failure of suport obligations shall
constitute a trigger event for purposes of the grant of a
contingent source code license as referenced in
subparagraph (a) of the Source
Code Clause.
e. Verification. At Boeing's request, during Normal Working
Hours, Supplier shall, in the presence of Boeing
representatives, compile and test the Program source code for
Boeing on Supplier's equipment for the purpose of verifying
that it satisfies the requirements of this clause.
f. Source License Term. The license granted under subparagraph
(3) of the paragraph entitled "Boeing's Rights Prior to
Rejection" of this clause will remain in effect for the
duration of the trigger event which gave rise to it, plus a
reasonable transition period during which Supplier resumes
performance of its obligations under the clause entitled
"Support Services" to Boeing's satisfaction. Except as set
forth below, the license granted under subparagraph (3) of the
paragraph entitled "Boeing's Rights After Rejection" of this
clause, however, will remain in effect so long as Boeing is
entitled to use the Program in object code form under this
Agreement, both during and after the trigger event which gave
rise to it. In this event, Boeing may, but need not, resume
coverage under the clause entitled "Support Services,"
whereupon the license granted under subparagraph (3) of the
paragraph entitled "Boeing's Rights After Rejection" of this
clause will lapse as of Supplier's acceptance of a Purchase
Contract for the resumed coverage.
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g. Employment. As of the effective date of any source license
granted under this clause, Boeing may, at its sole discretion,
solicit for employment and hire any of Supplier's employees who
are or may be able to assist Boeing in understanding the
Licensed Software and exercising this license. Provided and to
the extent Boeing does so, Supplier hereby releases, and shall
release, any such employees from any restrictions imposed on
him or her by any contrary provision in any agreement between
Supplier and such employees. In addition, Supplier hereby
waives, releases, and renounces any claim against Boeing or any
of its subsidiaries arising out of the solicitation or hiring
of such employees in accordance with this paragraph.
h. Embodiment. Upon delivery to Boeing by Supplier, the
Embodiment will be treated as Supplier's Proprietary
Information under the clause entitled "Proprietary
Information."
i. Irreparable Harm. Any delay or failure to deliver the
Embodiment in accordance with this clause will cause Boeing
irreparable harm. Likewise, certain disclosures of the
Licensed Software in source code form will cause Supplier
irreparable harm. Either party may plead this acknowledgment
when and if it seeks equitable relief in connection with this
Agreement.
10. EVALUATION AND TEST SOFTWARE
a. Evaluation Programs. From time to time during the term of
this Agreement, Boeing may order, and Supplier may deliver or
authorize Boeing to make an additional copy of, any Program for
evaluation or testing, at no charge, subject to the terms and
conditions set forth in this clause. (Any Program thus
obtained is referred to in this clause as an "Evaluation
Program.")
b. Limited License. Boeing may install and use each Evaluation
Program for the period specified in the Purchase Contract under
which it is ordered, and then only on a single computer
processing unit at the location designated in the Purchase
Contract. Promptly after the close of this period, Boeing
shall destroy the Evaluation Program unless Boeing exercises
its option under the paragraph entitled "Option to License" of
this clause.
c. Preproduction Software. Each Evaluation Program ordered and
obtained by Boeing under this clause for alpha or beta testing
will be treated as Supplier's Proprietary Information in
accordance with the clause entitled "Proprietary Information,"
even though it is or may be provided in object code form.
d. Reports. Boeing may, but need not, prepare and furnish
Supplier a report, setting forth the results of any alpha or
beta testing conducted by Boeing under the paragraph entitled
"Preproduction Software" of this clause. Each and every such
report is not intended to be, nor should it be used or
construed as, any kind of product endorsement by Boeing.
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e. Indemnity. Supplier shall use each and every report
contemplated by the paragraph entitled "Reports" of this clause
at its own risk. Supplier shall defend, indemnify, and hold
harmless Boeing and its subsidiaries and their respective
directors, officers, employees, and agents from and against all
actions, causes of action, liabilities, claims, suits,
judgments, liens, awards, and damages of any kind and nature
whatsoever (hereinafter referred to as "Claims"), and expenses,
costs of litigation (including without limitation clerk,
paralegal, and expert witness costs), and reasonable attorneys'
fees related thereto, or incident to establishing the right to
indemnification, whether or not specifically awardable under
any court rules, to the extent such Claims arise from any such
report, or the use or disclosure of any of the information
contained in the report. In no event shall Supplier's
obligations hereunder be limited to the extent of any insurance
available to or provided by Supplier or any Subcontractor.
f. Supplier's Responsibilities. Every Evaluation Program will be
furnished to Boeing "AS IS" and will not be subject to the
clauses entitled "License," "Source Code," if any, or "Support
Services," unless and until Boeing exercises its option to
license it under the paragraph entitled "Option to License" of
this clause.
g. Option to License. Should Boeing decide to license any
Evaluation Program, Boeing may issue a Purchase Contract to
this effect, whereupon it will be considered "Licensed
Software" and will be subject to the clause entitled "License,"
along with all of the other terms and conditions of this
Agreement, except this clause, as of Supplier's acceptance of
the Purchase Contract.
h. No Cost Loan. Supplier shall loan equipment software or
other items to Boeing in accordance with the Exhibit
entitled "No Cost System Loans " if any.
11. WARRANTIES
a. Software Warranties. Supplier warrants the following to
Boeing and its subsidiaries during the Warranty Period:
1) Media Defects. The media on which the Licensed Software
is provided to Boeing shall be free of defects in
material and workmanship.
2) Functions and Features. The Program shall possess the
functions and features contemplated by the
Documentation.
3) Performance. The Program shall perform in accordance
with the Documentation.
4) Program Errors. The Licensed Software shall be free of
any Critical Program Errors.
5) Date Functions. The Licensed Software must correctly
process all dates past Decembr 31, 1999, and all date
related information and processes.
15
6) Compatibility. The Program shall be compatible with the
operating system, application programs, computing
equipment, and networks contemplated by the
Documentation.
7) Conformance to Requirements. The Licensed Software
shall conform in all respects to all of the requirements
of this Agreement.
b. Availability. Supplier warrants the following to Boeing and
its subsidiaries, both during and after the Warranty Period:
1) Discontinued Goods. Supplier shall continue to provide
support for three (3) years after discontinuance of any
of the Licensed Software.
2) Old Releases. Supplier shall continue to provide
support for at least two releases of the Licensed
Software below the level of the current release.
For purposes of this paragraph the term "support" means the
support described in paragraphs (a) and (b) of the clause
entitled "Support Services."
c. Warranty Exclusions. The warranty coverage under this clause
does not apply to any defect caused by any negligent act or
omission of Boeing or by use of the Goods in an operating
environment not contemplated by the Documentation or this
Agreement.
12. GENERAL PERFORMANCE
Supplier represents and warrants that Supplier has the legal right
to enter into, and perform its obligations under, this Agreement,
including, without limitation, the right to deliver and grant a
license with respect to the Goods.
13. SUPPORT SERVICES
During the Warranty Period, Supplier shall provide the following
support services at no charge to Boeing. Thereafter, Supplier
shall provide the following support services, if ordered under a
Boeing Purchase Contract, at a price to be mutually agreed upon.
Such price shall, in no event, exceed Supplier's standard price
for the provision of support services.
a. Software Maintenance. Boeing has the option of purchasing
Premium Maintenance or Standard Annual maintenance. Supplier
shall maintain the Licensed Software in accordance with the
chosen Software Maintenace plan as indicated on the Boeing
Purchase Contract and under the terms and conditions of Clause
12 Support Services of this Agreement. SubClauses b f of this
Clause apply to both the Premium and Standard Annual
Maintenance.
16
Premium Maintenace if purchased: This maintenance shall include, as a minimum,
the annual delivery to Boeing of all corrections, Version Releases, Upgrade
Releases and Update Releases, together with all accompanying Documentation,
promptly after final testing, but in no event later than three (3) days after
the date made available to Supplier's general customer base. These annual
deliveries will be made by Supplier at no charge. From time to time, however,
Boeing may request and Supplier shall make additional deliveries, subject to
reimbursement by Boeing of Supplier's shipping and handling costs. Boeing may,
but need not, use any, some, or all of the corrections, updates, new releases,
or new versions of the Program delivered under this clause. Premium Maintenance
shall not include devliery of any releases containing royality-bearing thrid
party tecyhnology such as OCR. At Boeing's request, Supplier shall work with
Boeing and the third party supplier to negotiate a license for any royality
bearing third party technology. . Premium maintenance is at 15% of the total
acquired Program fee paid by Boeing.
Standard Annual Maintenance if purchased: This maintenance shall include, as a
minimum, the annual delivery to Boeing of all corrections Update Releases and
discounted upgrades to new Version Releases and Upgrade Releases together with
all accompanying Documentation, promptly after final testing, but in no event
later than three (3) days after the date made available to Supplier's general
customer base. These annual deliveries will be made by Supplier at no charge.
From time to time, however, Boeing may request and Supplier shall make
additional deliveries, subject to reimbursement by Boeing of Supplier's shipping
and handling costs. Boeing may, but need not, use any, some, or all of the
corrections, updates, new releases, or new versions of the Program delivered
under this clause. Standard Annual Maintenance is provided at an annual flat fee
for each license purchased.
Supplier is required, provided Boeing purchases Premium or Standard Annual
Maintenance, to maintain the uniquely developed Boeing "mime type" in the
current and all future Version Releases, Upgrade Releases and Update Releases at
no additional cost. Supplier shall have the right, at its sole discretion, to
futher enhance or change the methods incorpoated into their Program, modify
existing features in the Program or add additional features to the Program
provided Supplier ensures that the backward compatibity with the Boeing funded
development is maintained in any future Program Version Release, Upgrade Release
and Update Release. Boeing may, at its discretion, adopt any new enhancements
or use any new methods provided in future versions of the Program and relieve
Supplier of the backward compatibilty requirement. Such relief must be in
writing from Boeing to Supplier as defined in Clause 23 Notices.
b. Hot Line. Supplier shall maintain a telephone "hot line" with
which Boeing can report Program Errors to Supplier twenty-four
(24) hours a day, seven (7) days a week, or obtain ongoing
technical assistance as may be required for Boeing to
understand and use the Licensed Software. The hot line shall
be available for live communication during Normal Working
Hours. If unable to provide live communication for all or any
portion of the remaining twenty-four (24) hours a day, Supplier
shall provide a telephone message recording device which will
effectively record Boeing's reports.
c. Classification of Program Errors. Supplier shall correct any
Program Error which becomes known to it, in accordance with the
severity of the Program Error involved and its actual or
potential impact upon Boeing operations. Boeing shall inform
Supplier of these facts when making its trouble report.
Boeing reserves the right to reclassify any Program Error as a
Critical Program Error, or vice versa, at any time. The fact
that a Program Error is not classified as a Critical Program
Error, however, shall in no way prejudice Boeing's rights or
remedies under this Agreement.
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d. Response. Supplier shall respond to every Boeing trouble
report, as follows, commencing upon receipt of Boeing's trouble
report:
1) Error Reporting. Within the first four (4) Normal
Working Hours, Supplier shall provide telephone
consultation to Boeing.
2) Non-Critical Program Errors. For Program Errors other
than Critical Program Errors, Supplier shall use its best
efforts to correct them, either through the development
and provision of corrective code for the Program, or
corrective addenda or substitute pages for the
Documentation, or both. Supplier shall promptly replace
any "work-around," "patches," or other temporary
correction provided to Boeing in response to a Program
Error with permanent correction, and in any event shall
include such permanent correction in the next release of
the Licensed Software.
3) Critical Errors. For Critical Program Errors other than
a Key, Supplier shall respond in the same manner as that
described in the preceding paragraph, but shall deliver a
suitable "work-around," "patch," or other temporary
correction suitable to restore lost functionality and
performance within the first twenty-four (24) Normal
Working Hours. For a Key, Supplier shall "unlock,"
remove, or disable the Key, or shall provide Boeing with
the algorithms, code, specifications, or other means to do
so, within the first six (6) Normal Working Hours.
4) Extraordinary Circumstances. If Supplier encounters
unforeseen circumstances which delay or make it impossible
for Supplier to perform the obligations set forth above,
Supplier shall cooperate with Boeing to provide
appropriate work-arounds, interim support, onsite
personnel, or other remedial measures commensurate with
the severity and impact of the Program Error.
Failure by the Supplier to restore lost functionality and performance
within the applicable period set forth above, or any longer period
prescribed by the Authorized Boeing Representative, is a failure to
perform under this clause, and constitutes a trigger event under the
paragraph entitled "Trigger Events" of any clause entitled "Source
Code."
e. Other Users. Should Supplier learn of a Program Error from any
user other than Boeing or one of its subsidiaries, Supplier
shall notify Boeing of the Program Error and its potential
impact on Boeing operations promptly, and shall respond in
accordance with the procedure described in the paragraph
entitled "Response" of this clause, as if the Program Error was
reported by Boeing.
f. Support for Corrections toVersion Releases, Upgrade Releases
and Update Releases. . Any modifications to Documentation,
additional Documentation, training, or technical assistance
required for, or on account of, the installation of any
corrections toVersion Releases, Upgrade Releases, and Update
Release of the Program shall be provided promptly by Supplier.
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g. Diagnostic Data. From time to time, Supplier may request, and
Boeing shall furnish (to the extent it has the legal right to
do so), certain data generated by the Program, as reasonably
required by Supplier to perform its obligations under this
clause. Such data will be treated as Boeing's Proprietary
Information in accordance with the clause entitled "Proprietary
Information" regardless of the markings, screen displays, or
other notices provided, or not provided, on or in conjunction
with such data.
h. Supplier shall provide Boeing one (1) year notice of intent to
discontinue maintenance on any particular version of Licensed
Software.
i. Should Supplier choose to consolidate, merge, rename, split,
repackage etc., the Licenses Software currently being used by
Boeing, with any other software products it licenses, for
whatever reason, Boeing will not be required to pay any
additional maintenance fees, or the increased license fees, due
to the consolidation, merge, rename, split or repackaging, fee
for the acquisition of future licenses. If Boeing has requested
the consolidation, merge, rename, split, repackage etc.,
Supplier and Boeing will mutually agree at the time of the
consolidation on the approprieate increased fee. Should Boeing
choose to accept the consolidated, merged, renamed, split,
repackaged software Boeing would accordingly pay the higher
price.
14. PROPRIETARY INFORMATION
a. Definition. For purposes of this Agreement, the term
"Proprietary Information" means code or information which
relates to and is disclosed by one party (the "originating
party") to the other party (the "receiving party") in
connection with a Purchase Contract or other matter within the
scope of this Agreement (hereinafter referred to as the
"Project"), provided that, when disclosed, such information is
in written or other permanent form (a "permanent record")
and is identified as proprietary to the originating party by
clear and conspicuous markings. Any such information in
another form when disclosed shall be considered Proprietary
Information only if and to the extent the originating party
informs the receiving party of the proprietary nature of the
information prior to the disclosure, and thereafter creates a
permanent record of the disclosure, as described above, and
delivers it to the receiving party promptly but in no event
more than thirty (30) days after the original disclosure.
Proprietary Information includes, without limitation, code or
information contemplated by any clause entitled "Source Code,"
the paragraph entitled "Preproduction Software" of the clause
entitled "Evaluation and Test Software," and the paragraph
entitled "Diagnostic Data" of the clause entitled "Support
Services." Proprietary Information does not include the
Program in object code form or the Documentation.
b. Disclosure and Use. The receiving party shall preserve
Proprietary Information received from the originating party in
confidence, and shall refrain from disclosing such Proprietary
Information to any third party without written authorization
from the originating party. Except for the Licensed Software
in source code form, these obligations will terminate three
(3) years after receipt. During the term of the Project, the
receiving party shall use Proprietary Information received
from the originating party solely in connection with the
Project. The disclosure and use obligations set forth above
shall be considered satisfied by the receiving party through
the exercise of the degree of care, but in no event less than
reasonable care, used to restrict disclosure and use of its
own information of like kind and importance.
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c. Exception. This Agreement shall not restrict disclosure or
use of Proprietary Information that is:
1) Known to the receiving party without restriction when
received, or thereafter is developed independently by the
receiving party, without reference to Proprietary
Information of the originating party; or
2) Obtained from a source other than the originating party
through no breach of confidence by the receiving party;
or
3) In the public domain when received, or thereafter enters
the public domain through no fault of the receiving
party; or
4) Disclosed by the originating party to a third party
without restriction; or
5) Required by applicable law or regulation, provided the
receiving party notifies the originating party of the
requirement promptly, and cooperates with the originating
party (at the request and expense of the originating
party) in contesting the requirement.
d. No Other Rights Granted. Proprietary Information shall remain
the property of the originating party. Except for the rights
expressly granted under this Agreement, neither this Agreement
nor the disclosure of Proprietary Information hereunder shall
be construed as granting any right or license under any trade
secrets, copyrights, inventions, or patents now or hereafter
owned or controlled by either party. This Agreement does not
grant any right or license, or impose any restriction on use
or disclosure with respect to information, other than
Proprietary Information, disclosed or received by either party
in connection with the Project.
e. Wind-up Activities. Upon termination of the Project and
unless instructed to do otherwise by the originating party,
the receiving party shall cease use of and destroy all of the
Proprietary Information, if any, received from the originating
party. The originating party may request, and the receiving
party shall provide, written certification of the destruction.
Notwithstanding the foregoing, each party may retain one copy
of each and every permanent record of the Proprietary
Information disclosed to it under this Agreement solely as a
record of the disclosure.
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f. Transfer of Employees. Supplier acknowledges that Boeing is
or may be using third-party programs, documentation, computing
equipment, and other products which provide functionality and
capabilities similar to those provided by the Goods.
Likewise, Boeing acknowledges that Supplier is developing, or
may desire to develop, new and improved products which address
the needs and requirements of customers similar to Boeing.
Notwithstanding any other provision of this clause or this
Agreement, therefore, so long as each party does not knowingly
disclose Proprietary Information received from the other
party, each party may transfer and allow those employees who
have had access to and reviewed the other party's Proprietary
Information under this Agreement to use the ideas, concepts,
and know-how gained from such access in other assignments.
15. INFRINGEMENT
a. Indemnity. Supplier shall defend, indemnify, and hold
harmless Boeing and its subsidiaries and their respective
directors, officers, employees, and agents from and against
all actions, causes of action, liabilities, claims, suits,
judgments, liens, awards, and damages of any kind and nature
whatsoever (hereinafter referred to as "Claims") and expenses,
costs of litigation (including without limitation clerk,
paralegal, and expert witness costs), and reasonable
attorneys' fees related thereto, or incident to establishing
the right to indemnification, whether or not specifically
awardable under any court rules, to the extent such Claims
arise out of the infringement of any patent or copyright by
the Goods, or involve the wrongful use of any trade secret or
confidential information. The foregoing notwithstanding,
Supplier shall not be liable to Boeing for Boeing's
consequential damages or lost profits as a result of any
permanent injunction referred to in the paragraph entitled
"Cancellation of License" below. Boeing shall give Supplier
notice of all Claims made against Boeing or any of its
subsidiaries and shall cooperate with Supplier (at Supplier's
expense) in the defense or settlement of such Claims. In no
event shall Supplier's obligations hereunder be limited to the
extent of any insurance available to or provided by Supplier
or any Subcontractor.
b. Exclusions. The paragraph entitled "Indemnity" of this clause
does not apply to any Claim arising out of the unauthorized
modification, combination, operation, or use of the Goods by
Boeing or any of its subsidiaries, to the extent the Claim
would not have arisen had such modification, combination,
operation, or use not occurred.
c. Cure. As soon as Supplier or Boeing has reason to believe a
Claim is likely to be made against Boeing or any of its
subsidiaries, Supplier shall, promptly and at its sole
expense, use its best efforts to settle, avoid, or otherwise
cure the Claim by one of the following procedures:
1) Obtain a license for Boeing and its subsidiaries to
continue using the Goods giving rise to the Claim in
accordance with this Agreement.
2) Modify such Goods to make them noninfringing, while
maintaining the equivalent or better functionality,
features, and performance.
3) Replace such Goods with a noninfringing product, either
from Supplier or another supplier, having the equivalent
or better functionality, features and performance.
21
The procedures are set forth above in order of precedence. Supplier shall
pursue each of these procedures in the order stated until the cure is
accomplished. Boeing reserves the right, however, to direct Supplier to attempt
these procedures in a different order, in the interest of minimizing the adverse
impact of the cure on Boeing operations. These obligations are in addition to,
not in lieu of, Supplier's obligations under the paragraph entitled "Indemnity"
of this clause, and any other remedy provided at law or in equity.
d. Cancellation of License. If, despite its best efforts to do
so, Supplier is unable to effect a cure under the paragraph
entitled "Cure" of this clause, and a permanent injunction
ordering Boeing and its subsidiaries to cease further use of
the Goods is issued by a court of competent jurisdiction,
either party may cancel the Purchase Contract under which the
Goods were ordered, either in whole or in part, whereupon
Boeing may return all or any portion of the Goods to Supplier
for a full refund. Any license granted under this Agreement
with respect to the returned Goods will terminate as of the
effective date of the cancellation. This remedy is in
addition to, not in lieu of, Supplier's obligations under the
paragraph entitled "Indemnity" of this clause, and any other
remedy provided at law or equity.
16. PREMISES INDEMNIFICATION
a. Supplier's Indemnity. Supplier shall defend, indemnify, and
hold harmless Boeing, its subsidiaries, and their respective
directors, officers, employees, and agents (hereinafter
referred to as "Indemnitees") from and against all actions,
causes of action, liabilities, claims, suits, judgments,
liens, awards, and damages, of any kind and nature whatsoever
(hereinafter referred to as "Premises Claims"), for property
damage, bodily injury, or death (including, without
limitation, claims of the employees of Supplier or any
Subcontractor) and expenses, costs of litigation (including
without limitation clerk, paralegal, and expert witness
costs), and reasonable attorneys' fees related thereto, or
incident to establishing the right to indemnification, whether
or not specifically awardable under any court rules, arising
out of or in any way related to the performance of the
Agreement by Supplier or any Subcontractor, or their
respective employees, including, without limitation, the
provision of services, personnel, facilities, equipment,
support, supervision, or review, to the extent such Premises
Claims arise from any negligent act or omission or willful
misconduct of Supplier or any Subcontractor, or their
respective employees. Supplier expressly waives any immunity
under industrial insurance, whether arising from Title 51 of
the Revised Code of Washington, or any other statute or
source, to the extent of the indemnity set forth in this
paragraph. In no event shall Supplier's obligations hereunder
be limited to the extent of any insurance available to or
provided by Supplier or any Subcontractor.
b. Subcontractor Indemnification. Supplier shall require each
Subcontractor to provide an indemnity, enforceable by, and for
the benefit of, the Indemnitees, to the same extent required
of Supplier.
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17. INSURANCE
a. Commercial General Liability. Throughout the period of
performance of this Agreement and until final acceptance by
Boeing, Supplier shall carry and maintain, and shall ensure
that all Subcontractors carry and maintain, Comprehensive
General Liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury,
including death, and property damage combined. Such insurance
shall be in a form and with insurers acceptable to Boeing, and
shall contain coverage for all premises and operations, broad
form property damage, contractual liability, and products and
completed operations insurance.
b. Automobile Liability. If licensed vehicles will be used in
connection with the performance of this Agreement, Supplier
shall carry and maintain, and ensure that any Subcontractor
who uses a licensed vehicle in connection with the performance
of this Agreement carries and maintains, throughout the period
of performance of the Agreement, Automobile Liability
insurance covering all vehicles, whether owned, hired, rented,
borrowed, or otherwise, with limits of liability of not less
than One Million Dollars ($1,000,000) per occurrence combined
single limit for bodily injury and property damage.
c. Workers' Compensation and Employers Liability. Throughout
the period of performance of this Agreement and until final
acceptance by Boeing, Supplier shall carry and maintain, and
ensure that all Subcontractors carry and maintain, insurance
in accordance with the applicable laws relating to workers'
compensation with respect to all of its employees working on
or about Boeing premises, regardless of whether such coverage
or insurance is mandatory or merely elective under the law. If
Boeing is required by any applicable law to pay workers'
compensation premiums with respect to employees of Supplier or
any Subcontractor, Supplier shall reimburse Boeing for such
payment.
d. Certificates of Insurance.
(1) Prior to the commencement of the period of performance,
Supplier shall provide to the Authorized Boeing
Representative for review and approval certificates of
insurance reflecting full compliance with the
requirements set forth in the paragraphs entitled
"Commercial General Liability," "Automobile Liability,"
and "Worker's Compensation and Employers Liability" of
this clause. Such certificates shall be kept current and
in compliance throughout the period of performance and
until final acceptance by Boeing, and shall provide for
thirty (30) days advance written notice to Boeing in the
event of cancellation or material change adversely
affecting the interests of Boeing. Any policy or
policies providing the insurance required under this
clause may be inspected by Boeing upon request.
(2) Supplier at Supplier's expense shall maintain or cause to
be procured and maintained the policies of insurance
required under this clause. Any self retained layer,
deductibles, and exclusions in coverage in such policies
shall be assumed by, for the account of, and at the sole
risk of Supplier or the Subcontractor which provides the
insurance and to the extent applicable shall be paid by
such Supplier or Subcontractor. In no event shall the
liability of Supplier or any Subcontractor be limited to
the extent of any insurance available to or provided by
Supplier or any Subcontractor, or to the minimum limits
of insurance required under this clause.
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18. TERMINATION FOR CONVENIENCE
a. Termination. Boeing may terminate any Purchase Contract in
whole or in part by providing notice of such termination to
Supplier specifying the extent and effective date of such
termination thereof. On the specified termination
dateSupplier shall (i) stop work under the Purchase Contract
to the extent specified in the termination notice and (ii)
cease shipment of all Goods covered by the termination notice
other than those already delivered and accepted in accordance
with this Agreement as of the termination date. Supplier
shall continue to perform those obligations under this
Agreement to the extent not terminated.
b. Effect of Termination. In the event and to the extent of any
termination under this clause, all obligations of Supplier and
all rights and licenses of Boeing under the Purchase Contract
involved shall thereupon be terminated, but only with respect
to the Goods covered by the termination notice. Supplier shall
continue to perform those obligatons under this Agreement to
the extent not terminated.
c. Termination Payment. In the event and to the extent of any
termination under this clause, Boeing's total liability shall
be to pay Supplier the purchase price for all Goods delivered
and accepted, but not paid for under the Purchase Contract, on
or prior to the termination date specified in the termination
notice. Supplier shall give Boeing written notice of its
intent to submit any claims for compensation under this clause
within thirty (30) days after the effective date of
termination, and shall submit all such claims within sixty
(60) days after the effective date of termination. Supplier
hereby waives, releases, and renounces any claim for
compensation not made within this period.
19. CANCELLATION FOR DEFAULT
a. Cancellation. Either party may cancel any Purchase Contract,
in whole or in part, to the extent the other party fails to
perform any of its material obligations under the Purchase
Contract, and does not cure the failure within thirty (30)
days after service of a default notice, specifying the
failure; except that for breaches of the clauses entitled
"Delivery and Risk of Loss" or "Warranties," the defaulting
party shall have ten (10) days to cure after service of a
default notice, specifying the failure.
b. Effect of Cancellation. In the event and to the extent of
any cancellation under this clause, all obligations of the
nondefaulting party and all rights and licenses of the
defaulting party under the Purchase Contract shall thereupon
be canceled, but only with respect to the Goods covered by the
cancellation notice, and all rights and licenses of the
nondefaulting party and all accrued obligations of the
defaulting party under the Purchase Contract shall survive.
24
c. Cancellation Payment. In the event and to the extent of any
cancellation by Supplier under this clause, Boeing's total
liability shall be to pay Supplier for the Goods delivered and
accepted, but not paid for under the Purchase Contract, on or
prior to the effective date of cancellation. Boeing may
return, and Supplier shall have no claim against Boeing for,
Goods not accepted by Boeing or for rejected Goods. Supplier
shall give Boeing written notice of its intent to submit any
claims for compensation under this clause within thirty (30)
days after the effective date of cancellation, and shall
submit all such claims within sixty (60) days after the
effective date of cancellation. Supplier hereby waives,
releases, and renounces any claim for compensation not made
within this period.
d. Termination for Convenience. If, after issuance of a default
notice under the paragraph entitled "Cancellation" of this
clause by Boeing, it is determined for any reason that the
Supplier was not in default, or that the default was
excusable under the provisions of this Agreement, then there
will be no cancellation and the Purchase Contract will be
terminated for convenience in accordance with the provisions
of the clause entitled "Termination for Convenience," as of
the date the cancellation would have taken effect under this
clause.
20. DELAYS
The time for performance by either party under this Agreement
shall be extended for a period equal to any delay caused by
unforeseeable causes beyond the control of the party. These
causes include acts of God, acts of war, epidemics, fire, power
failure, and labor difficulties between the party and its
employees.
21. COMPLIANCE
a. With Applicable Laws. Supplier warrants that in the performance of its
obligations under this Agreement, it has complied with or will comply
with Chapters 6, 7, and 12 of the Fair Labor Standards Act, as amended,
and the regulations of the U.S. Department of Labor issued thereunder.
The provision entitled "Equal Opportunity" set forth in FAR 52.222-26 is
incorporated herein by this reference, except that "Contractor" means
Supplier. Upon request, Supplier shall submit certification that it
performed its obligations under this Agreement in accordance with the
foregoing warranty.
b. With Boeing and Local Rules and Regulations. Supplier shall ensure
that
any Employees on any Boeing premises (i) comply with Boeing's employee
rules of conduct, including, without limitation, Boeing's security and
safety procedures, and (ii) comply with all federal, state, and local
health, safety, and environmental laws and regulations applicable to
such Boeing premises.
c. With Export Laws and Regulations. Boeing shall comply with the laws
and regulations of the United States and its departments and agencies,
relating to the export of technical data.
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22. RECORDS AND AUDIT
For a period no less than three (3) years after final payment under each and
every Purchase Contract, Supplier shall retain source data supporting list
prices for all items billed to Boeing. Source data means documents, including,
without limitation, price lists dating back to the time the order was placed,
sufficient to verify the correctness of the price charged Boeing. Supplier
shall, upon request by Boeing, make such data available to Boeing for
examination, reproduction, and audit.
23. PROTECTION OF PROPERTY
Unless otherwise specified, upon delivery to Supplier, or manufacture or
acquisition by Supplier, of any materials, parts, tooling, data, or other
property, title to which is in Boeing, Supplier assumes the risk of, and shall
be responsible for, any loss thereof or damage thereto. In accordance with the
provisions of the Purchase Contract, but in any event upon delivery of the
Goods, Supplier shall return such property to Boeing in the condition in which
it was received except for reasonable wear and tear and except for such property
as has been incorporated in the Goods or reasonably consumed in the performance
of this Agreement.
24. NOTICES
Any notice, authorization, designation, request, or instruction under or in
connection with this Agreement to be effective shall be in writing and shall be
deemed duly given or served upon delivery, addressed as set forth below. Either
party may notify the other in the foregoing manner of any other address to which
such communications are to be addressed under this Agreement.
BOEING: SUPPLIER:
The Boeing Company TMS, Inc.
Supplier Management & Procurement 206 W. 6th Avenue
P. O. Box 3707 M/S Stillwater, OK 74074
Seattle, WA 98124-2207 Attn: Shari McClure -
Product Manager
Attention:
25. RELATIONSHIP OF THE PARTIES AND THEIR EMPLOYEES
a. Independent Contractors. Supplier is an independent contractor. Nothing
in this Agreement shall be construed as creating any relationship
between Supplier and Boeing other than that of buyer and seller, or
licensor and licensee. This Agreement is not intended to be, nor shall
it be construed as, a joint venture, association, partnership,
franchise, or other form of business organization or agency
relationship.
b. No Agency. Neither party shall have any right, power, or authority to
assume, create, or incur any expense, liability, or obligation, express
or implied, on behalf of the other, except as expressly provided herein.
c. Employees. Supplier's employees who perform Supplier's obligations
under this Agreement shall at all times be and remain employees of
Supplier, not
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employees of Boeing. Supplier shall pay Supplier's employees, and shall
ensure that each of its Subcontractors pays its employees, all wages,
salaries, overtime, and other amounts due to such employees. Supplier
shall be responsible for, and shall ensure that each of its
Subcontractors shall be responsible for, all reports, payments, and
other obligations respecting their respective employees, including
without limitation, those related to social security, income tax
withholding, unemployment compensation, workers' compensation, and
employee benefit plans.
d. Non-Solicitaiton - Except for the conditions set forth in Clauses #18
Termination for Convenience and #19 Cancellation for Default, of this
Agreement, during the term of this Agreement and for a period of six (6)
months thereafter, both Boeing and Supplier agree not to solicit for
hiring, nor attempt to solicit, the services of any employee of the
other without prior written consent. Any breach of this provionsion
shall entitle the injured party to recover liquidated damages against
the other equal to the expected recruiting and training costs for a
replacement person which the parties agree shall be considered to be
seventy-five percetn (75%) of the applicable person's annual
compensation.
Employees may on their own accord, provided netiher party has directly solictied
the employee, change jobs between Boeing and Supplier and neither Boeing or
Supplier will unfairly prevent that employee from changing employers.
26. DISASTER RECOVERY
In the event of a disaster or catastrophe totally or partially disabling
Boeing's computing or telecommunications capability, whether due to natural or
man-made causes, Supplier agrees to use its best efforts to aid in the prompt
restoration of computing or telecommunications capability, including but not
limited to furnishing of emergency replacements of Goods upon request via
overnight delivery, provision of maintenance services, and providing technical
assistance to Boeing in its attempts to recover data. Boeing shall be treated
at least as favorably as Supplier's most favored customer in the event that the
disaster or catastrophe affects others. Boeing and Supplier shall negotiate in
good faith to provide reimbursement to Supplier for the actual costs of time,
materials, and shipping involved in such emergency response.
27. GENERAL PROVISIONS
a. Severability. If any provision of this Agreement shall be held by a
court of competent jurisdiction to be illegal, invalid, or
unenforceable, the remaining provisions shall remain in full force and
effect.
b. Assignment. Neither this Agreement, nor any obligations under it, may
be assigned or delegated by either party without the prior written
consent of the other party, except that Boeing may unilaterally assign
this Agreement, in whole or in part, to any subsidiary of Boeing.
c. Publicity. Neither party shall use the name of the other party in any
news release, public announcement, advertisement, or other form of
publicity without securing the prior written consent of the other.
Neither party shall disclose any of the terms of this Agreement to any
third party without the prior written consent of the other, except to
the party's auditors or attorneys or under subpoena duly issued by a
court of competent jurisdiction. Notwithstanding the foregoing, Boeing
hereby consents to Supplier's inclusion of Boeing's name in a customer
listing published in a prospectus or annual report, provided Boeing is
not the sole customer listed.
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d. Survival. Except for any licenses expressly terminated or canceled,
all licenses granted under this Agreement, all indemnities, warranties,
and representations made under this Agreement, and all accrued
obligations under the clause entitled "Proprietary Information" and the
paragraph entitled "Publicity" will survive cancellation or termination
of this Agreement. Cancellation or termination of this Agreement or any
Purchase Contract shall not affect operation of those provisions of this
Agreement which, by their terms, survive or are required to effectuate
the intent of the parties, as reflected by this Agreement.
e. Third Party Beneficiary. Every subsidiary of Boeing is an intended
third-party beneficiary of this Agreement with rights of enforcement.
f. Rights and Remedies. Except as limited under this Agreement, the rights
and remedies afforded to each party under this Agreement are in addition
to any other rights or remedies, at law or in equity, or otherwise,
including, without limitation, the rights and remedies of Boeing as a
licensee of intellectual property under 11 U.S.C. 365(n) (e.g., to
retain its rights under this Agreement, and to request and obtain a copy
of the source code and associated programmer's notes of any computer
software provided to Boeing under this Agreement in object code form, as
the embodiment of such intellectual property).
g. Waiver. Either party's failure to exercise any of its rights under
this Agreement shall not constitute a waiver of any past, present, or
future right or remedy.
h. Litigation. The prevailing party in any litigation arising out of this
Agreement shall be entitled to recover its expenses, costs of litigation
(including without limitation clerk, paralegal, and expert witness
costs), and reasonable attorneys' fees from the losing party, whether or
not specifically awardable under any court rules. The venue for any
such litigation shall be King County, Washington.
i. Controlling Law. This Agreement shall be construed under and governed
by the law of the State of Washington, without regard to conflict of law
provisions.
j. Acknowledgement. Supplier acknowledges that it has not been induced to
enter into this Agreement by any representations or promises not
specifically stated in this Agreement, and that the provisions of this
Agreement (including, without limitation, the clauses entitled
"Infringement" and "Premises Indemnification") have been negotiated by
the parties and reflect an allocation of risk between the parties which
is a basis of their bargain, both now and with respect to each and every
Purchase Contract.
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k. Amendments. These terms and conditions may not be changed, amended, or
modified, except by an amendment in writing, executed by the Authorized
Boeing Representative and an authorized representative of Supplier.
Complete Agreement. This Agreement contains the complete and exclusive
statement of the terms of the agreement between Boeing and Supplier with respect
to the Goods, and merges any prior or contemporaneous agreements, commitments,
proposals, representations, or communications, oral or written, with respect to
the Goods.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate originals by their duly authorized representatives as of the dates set
forth below.
THE BOEING COMPANY TMS, Inc.
(Acting through its division,
Boeing Shared Services Group)
By /s/ Nancy Davenport By /s/ Richard P. Scanlan
Title: Sr. Procurement Agent Title: VP Internet Product
Date: 1/10/2000 Date: 1/27/2000
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