CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT UNDER RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
Exhibit 10.10
BEAR STEARNS & CO. INC.
SERVICE AGREEMENT
This Development and License Agreement (the "Agreement"), dated this 29th day of
July, 1998, is by and between Bear, Stearns & Co. Inc, a Delaware corporation,
having its principal offices at 245 Park Avenue, New York, NY 10167 and other
direct and indirect subsidiaries at the relevant time of its ultimate corporate
parent (collectively, "Bear Stearns"), and Predictive Systems, Inc, having
offices at 145 Hudson Street, New York, NY 10013 ("Predictive").
RECITALS
WHEREAS, Predictive wishes from time to time to perform Enterprise
Management services for Bear Stearns and Bear Stearns wishes to consider
engaging Predictive to perform such services (an "Assignment").
WHEREAS, in the interest of streamlining the startup phase of any such
Assignment, Bear Stearns and Predictive wish to agree in advance as to certain
terms and conditions under which such services may be rendered;
THEREFORE, for good and valuable consideration given pursuant to the
terms, conditions and covenants contained herein, Bear Stearns and Predictive
hereby agree as follows:
SECTION 1: STATEMENT OF WORK, SERVICES AND DELIVERABLES
1.1. Each Assignment will be commenced by a Statement of Work executed by
both Bear Stearns and Predictive (a "Statement of Work") referencing
this Agreement, and setting forth: (i) the deliverables to be produced
(the "Deliverables") and/or the other services to be performed (the
"Services"); (ii) the schedule for delivery of such Deliverables,
performance of such Services, and the date of completion of
Predictive's performance under the Statement of Work ("Completion
Date"); (iii) the agreed fees and costs consistent with this Agreement
for such Services and Deliverables ("Statement of Work Fees"); (iv) the
schedule for payment of such fees and costs ("Payment Schedule"); and
(v) the acceptance criteria against which the completeness of
deliverables will be measured ("Acceptance Criteria"). Notwithstanding
the foregoing, whether or not such Statement of Work sets forth the
items set forth in (i) through (v) above or refers to this Agreement,
the terms, conditions and provisions of this Agreement shall apply to
such Assignment and shall be automatically incorporated into such
Statement of Work, regardless of the terms discussed with any third
party.
1.2. As and when required by and Statement of Work and this Agreement,
Predictive shall perform for Bear Stearns the Services described in the
Statement of Work and shall deliver to Bear Stearns the Deliverables
described in the Statement of Work.
1.3. Notwithstanding the generality of Section 1.2., above and in addition
thereto, at the conclusion of each month during the term of each
Statement of Work, Predictive shall deliver to Bear Stearns all
Deliverables (including drafts and other work in progress) produced by
Predictive in the performance of the Statement of Work over the course
of that month.
1.4. Predictive warrants that it has or will provide the resources and
personnel necessary to carry out its work under each Statement of Work
and will use its best efforts to perform all work required under this
Agreement and each Statement of Work in a timely, skillful, and
efficient manner. Predictive shall not be responsible for any delay in
the performance of Services due to causes beyond reasonable control of
Predictive.
1.5. After completion of each milestone of the Statement of Work against
which a payment in the Payment Schedule is tied, (other than
obligations intended to survive acceptance by Bear Stearns), Predictive
will notify Bear Stearns in writing that Predictive has completed its
performance, that the Services are fully implemented, that the
Deliverables are fully implemented, and that Predictive's testing is
completed. Bear Stearns, with the cooperation and assistance of
Predictive, shall then be entitled to conduct a
comprehensive, integrated acceptance test of the Acceptance Criteria on
all the Services and Deliverables ("Acceptance Test"), and, if Bear
Stearns reasonably determines that any material part of the Acceptance
Criteria are not met during the Acceptance Test, to reject such
Services and/or Deliverables by notifying Predictive in writing.
"Acceptance" shall mean the receipt by Predictive of written
notification from Bear Stearns that the Acceptance Test on the Services
and Deliverables has been successfully completed. Any rejection shall
state specifically the manner in which the Services and Deliverables
are defective. In the event of rejection, Predictive shall correct any
deficiencies and shall resubmit such Services and Deliverables for
further Acceptance Testing in accordance with this paragraph. Bear
Stearns shall not be invoiced for more than 80% of the aggregate amount
due for any Services or Deliverables until such Services and
Deliverables satisfy the Acceptance Test and are accepted by Bear
Stearns pursuant to this Section 1.5.
SECTION 2: PROPRIETARY RIGHTS IN DELIVERABLES, ETC.
2.1 Predictive agrees that (i) any and all Deliverables, (ii) any and all
original other works of authorship, including, but not limited to all,
user documentation, papers, documents, drawings, databases and other
compilations which may be created, compiled or produced by Predictive
or any of its subcontractors, consultants or employees in the course of
performing Services or producing Deliverables for Bear Stearns (along
with the items described in (i) above, collectively, "Works of
Authorship"), and (iii) any and all copyrights and other proprietary
rights and all foreign and domestic, registered and unregistered,
copyrights, applications for registrations therefor and other
proprietary rights related to any Works of Authorship (collectively,
"Copyrights"), shall be deemed to be works made for hire for and the
exclusive property of Bear Stearns. Except to the extent specifically
agreed in the Statement of Work, to the extent that Predictive has or
obtains any right, title or interest in or to any Work of Authorship of
Copyright, Predictive hereby assigns and agrees to assign to Bear
Stearns all of such right, title and interest therein and thereto, and
to the extent that any employee, agent or sub-contractor of Predictive
has or obtains any right, title or interest in or to any Work of
Authorship or Copyright, Predictive shall cause such employee, agent or
sub-contractor to assign to Bear Stearns all of such right, title and
interest therein and thereto.
2.2. To the extent that any Deliverables or Services embody, contain or
disclose any ideas, concepts, know-how, inventions, formulas,
techniques, processes, ideas, algorithms, discoveries, designs,
developments, improvements, techniques or expertise that are known by
Predictive prior to Predictive's work for Bear Stearns or is developed
by Predictive during the course of Predictive's work for Bear Stearns
(collectively "Know-How") of Predictive, Predictive shall retain
ownership of such Know-How, provided that Bear Stearns shall have the
full, unrestricted and non-exclusive right to use, disclose, prepare
works of authorship based upon any Know-How embodied by, contained in
or disclosed by the Deliverables of Services and to copy, display and
distribute any such works of authorship.
2.3. Nothing herein shall prevent Predictive from providing services
substantially similar to those contemplated herein, whether for a
competitor of Bear Stearns or otherwise, and the parties expressly
agree that in providing such services, or in developing its general,
commercially available software products, Predictive may directly or
indirectly utilize residual know-how in its area of expertise not
specific to Bear Stearns resulting from the performance of the services
contemplated herein.
2.4. Upon the request of Bear Stearns, Predictive shall at Bear Stearns'
reasonable out-of-pocket cost and expense do all acts and things,
including, but not limited to, making and executing documents,
applications, deeds, license agreements, assignments, transfers,
conveyances, powers of attorney and instruments, using its best efforts
to obtain the cooperation of and bringing claims and actions against
its employees, ex-employees, agents, ex-agents and independent
contractors and giving information and testimony, in each case,
requested at any time and from time to time by Bear Stearns, in its
good faith discretion, to vest, secure, defend, protect and/or evidence
the right, title and ownership of Bear Stearns in and to any and all
Works of Authorship and Copyrights. Predictive hereby appoints Bear
Stearns and is successors and assigns as Predictive's attorney-in-fact,
with full power of substitution, in the name and stead of Predictive or
Bear Stearns, for the benefit of Bear Stearns and its successors and
assigns, to from time to time do any and all such acts and things which
Predictive is obligated to do under his paragraph. Predictive declares
that the appointment made and the powers granted hereby are coupled
with an interest and are irrevocable.
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SECTION 3: CHARGES, FEES, PAYMENTS AND INVOICING
3.1. Payment shall be made as set forth in the applicable Statement of Work.
3.2. The prices and charges hereunder do not include any excise, sales or
use taxes or duties. If any excise, sales or use taxes or duties, are,
or should ultimately be, assessed against or is required to be
collected by Predictive or by any taxing authority in connection with
their performance required hereunder, Bear Stearns agrees to pay an
amount equal to any and all such charges, except where Bear Stearns is
exempt by law and Bear Stearns provides a bona fide exemption
certificate to Predictive.
3.3. Bear Stearns shall make all payments due hereunder within 30 days from
the receipt of a correct and proper invoice.
SECTION 4. PERSONNEL
4.1. All personnel assigned to supply the Deliverables and perform the
Services shall be full-time employees of Predictive (subject to Section
11.6 hereof), shall be fully qualified to perform the tasks assigned to
them, and shall perform all such tasks in a competent and professional
manner. Predictive is an independent contractor. None of Predictive nor
Predictive's or any Predictive agent's or subcontractor's employees are
or shall be deemed for any purpose to be employees of Bear Stearns.
Bear Stearns shall not be responsible for, and Predictive shall
indemnify and hold Bear Stearns harmless against, any cost, expense,
liability, claim, damages, action, or proceeding relating to any
payroll-related taxes for any person who performs any Services,
produces and Deliverables, or provides maintenance, support or training
to be performed, produced or provided by Predictive hereunder or any
claim arising out of or relating to the employment or application for
employment of any such person.
4.2. Predictive shall maintain, throughout the performance of its
obligations under this Agreement, a policy of Worker's Compensation and
Disability Insurance with a minimum limit of $1 Million. Predictive
shall also provide Bear Stearns with a waiver of the insurers'
Subrogation Rights with respect to losses paid under the Worker's
Compensation or Employers' Liability coverage. Evidence of Predictive's
insurance shall be in the form of a certificate of insurance naming
Bear Stearns as an additional insured and including a thirty (30) day
advance written notice of change and/or cancellation of coverage.
Predictive, prior to commencement of any services, shall provide to
Bear Stearns said certificates from its insurers indicating the amount
of insurance coverage, the nature of such coverage and expiration dates
of each policy.
4.3. While this Agreement is in effect, and for a period of twelve months
subsequent to the termination of this Agreement, neither Predictive nor
Bear Stearns (including either party's subsidiaries and affiliates)
shall (i) solicit for employment any of the other party's employees,
without the prior written consent of such other party or (ii) employ,
either directly or indirectly (as a consultant, independent contractor
or otherwise), any of the other party's employees.
SECTION 5: SUPPORT
5.1. Predictive guarantees that it will make available EMS Support as
described in the Statement of Work on the terms set forth in this
Agreement for a period of at least [****] of the date hereof.
5.2. The annual maintenance fees shall not exceed [****]
5.3. Predictive shall provide training, instruction and consultation to Bear
Stearns as set forth in the relevant Statement of Work. Such services
are to be used at a time to be mutually agreed upon by the parties and
Bear Stearns shall reimburse Predictive for all reasonable
out-of-pocket expenses, including all transportation, lodging, meals
and other expenditures related to providing such services.
**** Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
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SECTION 6. WARRANTIES
Predictive represents, warrants and covenants to Bear Stearns as the date hereof
and of Acceptance under each Statement of Work as follows:
6.1. To the best of its knowledge and belief, Predictive owns or otherwise
has the valid right by contract or otherwise to deliver and assign to
Bear Stearns the Deliverables and all other Works of Authorship and the
Copyrights and to grant to Bear Stearns the rights as defined in this
Agreement.
6.2. To the best of its knowledge, Bear Stearns may use the Deliverables and
otherwise fully exploit the rights thereto set forth herein without
infringement of any such proprietary rights of third parties, and there
is currently no actual or threatened suit by any such third party based
upon an alleged violation by Predictive of any such proprietary rights.
THE LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE ONLY WARRANTIES MADE
BY PREDICTIVE. PREDICTIVE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS.
SECTION 7: LIMITATIONS OF LIABILITY
7.1. EXCEPT AS STATED HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT AND/OR CONSEQUENTIAL DAMAGES OF ANY KIND,
RESULTING FROM EITHER PARTY'S PERFORMANCE OR FAILURE TO PERFORM
PURSUANT TO THE TERMS OF THIS AGREEMENT OR ANY OF THE ATTACHMENTS OR
EXHIBITS HERETO, OR RESULTING FROM THE FURNISHING, PERFORMANCE OR USE
OR LOSS OF ANY LICENSED PRODUCTS OR OTHER MATERIALS DELIVERED TO BEAR
STEARNS THEREUNDER, INCLUDING WITHOUT LIMITATION ANY INTERRUPTION OF
BUSINESS, WHETHER RESULTING FROM BREACH OF CONTRACT OR BREACH OF
WARRANTY, EVEN IF THE PARTIES HERETO HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
7.2. Notwithstanding anything set forth in this Agreement, no limitation of
liability of exculpation of either party hereto shall apply to:
(a) any liability arising out of or in connection with acts or
omissions that constitute bad faith, willful misconduct, gross
negligence, or intentional breach of this Agreement;
(b) losses by the other party (or any of its affiliates) that arise
in connection with any infringement or misappropriation of the
other party's (or any of its affiliate's) intellectual property
by the party to be exculpated (or any of its affiliates);
(c) any liability, loss or claim arising out of a breach by such
party of Section 6, 8 or 9 hereof; or
(d) any liability, loss or claim arising out of or related to any
claim that any of the Deliverables infringe any copyright, trade
secret or other proprietary right of a third party.
SECTION 8: NON-DISCLOSURE
8.1. Predictive acknowledges that in the course of performing its
obligations hereunder, Predictive and its agents, representatives,
employees and sub-contractors may have access to information relating
to Bear Stearns, its business, customers, correspondents, finances,
activities, securities or future positions, software, systems,
strategies or plans that is non-public, proprietary or confidential in
nature(all the foregoing, along with the Deliverables and the
Specifications, collectively, "Bear Stearns Information"). Predictive
shall and shall cause its subcontractors and affiliates and
Predictive's and its subcontractors' and affiliates' agents,
representatives, and employees to (i) keep all Bear Stearns Information
confidential; (ii) not disclose any Bear Stearns Information or any
part thereof, in any manner whatsoever, without Bear Stearns'
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prior written consent, and (iii) not use any Bear Stearns Information
or any part thereof, other than to enable Predictive to perform its
obligations under this Agreement. Moreover, Predictive shall and shall
cause its subcontractors and affiliates and Predictive's and its
subcontractors' and affiliates' agents, representatives, and employees
to reveal Bear Stearns Information only to its agents, representatives
and employees who need to know such Information in connection with this
Agreement, who are informed by Predictive of the confidential nature of
such Bear Stearns Information and who shall agree (in writing) to act
in accordance with the terms and conditions of this provision. All
media on which any Bear Stearns Information may be recorded or located,
including, without limitation, documents, papers, outlines, samples,
photocopies, photographs, films, drawings, descriptions, reproductions,
cards, tapes, discs and other storage facilities (collectively, "Bear
Stearns Documentation") made by Predictive or any of its employees,
agents representatives, or sub-contractors in the course of performing
Services or producing Deliverables for Bear Stearns, or that come into
the possession of Predictive or any of its employees, agents
representatives, or sub-contractors in the course of performing
Services or producing Deliverables for Bear Stearns, are the property
of Bear Stearns and shall be returned to Bear Stearns by Predictive
upon the earlier of request by Bear Stearns or termination of
Predictive's engagement by Bear Stearns. Predictive shall not, and
shall cause its any of its employees, agents representatives, or
sub-contractors who obtain or have obtained possession of or develop or
have developed any Bear Stearns Documentation not to, deliver, copy, or
in any way allow any Bear Stearns Documentation to be delivered to or
used, examined or copied by any third party without the written
direction or consent of Bear Stearns. Predictive shall, and shall cause
its employees and agents to, place an appropriate emblem or other
annotation on any and all Bear Stearns Documentation that is in the
possession of Predictive or any of its employees or agents evidencing
Bear Stearns' ownership of such Bear Stearns Documentation. Predictive
acknowledges that the use or disclosure of any Bear Stearns Information
in a manner inconsistent with this Agreement may cause Bear Stearns
irreparable damage, and that Bear Stearns shall have the right to seek
injunctive relief to prevent such unauthorized use or disclosure, and
to such damages as are occasioned by such unauthorized use or
disclosure.
8.2 Notwithstanding anything set forth in this Agreement, the
confidentiality provisions of this Agreement, including, but not
limited to the above shall not apply to: (a) information which (i) is
already in the possession of the party subject to the confidentiality
obligations, ii) is or become generally available to the public other
than as a result of improper disclosure by the party subject to the
confidentiality obligations or its agents, representatives or employees
iii) is independently developed by the party subject to the
confidentiality obligations, or (iv) become available to the party
subject to the confidentiality obligations on a non-confidential basis
from a source which, to the best of such party's knowledge, is not
prohibited from disclosing such information to the party subject to the
confidentiality obligations by a legal, contractual or fiduciary
obligation to the party subject to the confidentiality obligations, or
(b) disclosures required by applicable law, rule, regulation or order
or to legal counsel or auditors of the party who are subject to an
obligation of confidentiality.
SECTION 9: INFRINGEMENT INDEMNIFICATION
9.1 Predictive shall indemnify, defend and hold harmless Bear Stearns for,
from and against any and all losses, liabilities, damages, demands,
claims (including without limitation taxes), and costs, payments and
expenses (including without limitation any and all reasonable
attorneys' fees, reasonable costs of investigation, litigation and
settlement, interest and any judgments and penalties) (collectively,
"Losses") as incurred, arising out of, or in connection with any claims
made against Bear Stearns in connection with any allegations that any
of the Deliverables or their use, sale, disclosure, execution,
reproduction, modification, adaptation, distribution, performance or
display, infringe or misappropriate any copyright, patent, trademark,
service mark, trade secret or other forms of proprietary rights of any
third party. Bear Stearns shall give Predictive prompt notice of any
such claim made against it, shall allow Predictive control of the
defense of any such claim made against it, and shall give Predictive
all reasonable assistance requested by Predictive in writing in
connection therewith.
9.2 If, as a result of any such claim, any preliminary injunction or other
injunctive relief is entered against Bear Stearns, or any temporary
restraining order is obtained affecting Bear Stearns which materially
restricts or in any way precludes any further use of any of the
Deliverables, THEN Predictive shall refund to Bear
5
Stearns all license fees and unused maintenance fees (on a pro-rata
basis) paid to Predictive by Bear Stearns, and upon such refund this
Agreement shall be deemed terminated under hereunder; provided,
however, that the foregoing shall not apply if upon issuance of any
such preliminary or other form of injunction or temporary restraining
order, Predictive either:
(a) obtains promptly for Bear Stearns the right to continue to use
the Deliverables which are the subject of the claim of
infringement without additional cost to Bear Stearns, or
(b) provides without cost to Bear Stearns an equally satisfactory
substitute Deliverables which achieve the same objectives as
the Deliverables which are the subject of the claim of
infringement, is equally practicable and functional and does
not infringe any copyright, patent, trade secret or other form
of proprietary or intellectual property rights of third
parties.
SECTION 10: TERMINATION/BANKRUPTCY
10.1 Termination For Convenience By Bear Stearns. Bear Stearns may terminate
this Agreement or a particular Statement of Work by giving thirty (30)
days advance written notice to Predictive. Bear Stearns shall then pay
within (30) days all unpaid amounts that have been incurred as of the
date of termination plus a termination charge equal to thirty percent
(30%) of the total remaining fees that would have been due under the
terminated Statement(s) of Work, if the remainder of the Services
described therein had been fully performed. The remainder balance shall
be computed by subtracting the value of paid invoices from the total
value of the Services under the terminated Statement(s) of Work. The
parties agree that such termination charge shall constitute
consideration for Predictive's time, effort and expense in preparing to
perform its obligations, hereunder, as actual damages are difficult to
ascertain. Predictive shall promptly deliver to Bear Stearns all
Deliverables performed for and prepaid by Bear Stearns prior to the
termination relating to such Statement of Work.
10.2 Termination For Breach by Bear Stearns. If Bear Stearns fails to pay
any outstanding charges within forty-five (45) days after receipt of
written notice of delinquency, or if Bear Stearns fails to perform or
observe any other material term or condition of this Agreement for
forty-five (45) days after receipt of written notice from Predictive of
such failure, Bear Stearns shall be in default and Predictive may,
without prejudice to any other right or remedy, suspend performance
under, or terminate in its entirety, or in relation to a particular
Statement of Work. Any unpaid charges or other obligations accrued to
such termination shall survive termination of this Agreement or
Statement of Work, as applicable.
10.3 Termination For Breach by Predictive. If Predictive fails to perform or
observe any other material term or condition of this Agreement and/or
Statement(s) of Work for forty-five (45) days after Predictive's
receipt of written notice from Bear Stearns of such failure and has not
commenced performance or observance of such material term or condition
within such 45-day period, Bear Stearns shall have the option of
immediately terminating the Agreement and/or Statement of Work involved
in whole or in part, without further obligation including any
additional payments, liability or penalty of any kind.
10.4 If Predictive becomes the subject of a case commenced under Title 11 of
the United States Code (the "Bankruptcy Code") and Predictive, as
debtor-in-possession, or a trustee appointed for Predictive ("Trustee")
decides to reject this Agreement and/or any Statement of Work pursuant
to Section 365(n) of the Bankruptcy Code, then Bear Stearns, in
addition to all rights conferred by the Bankruptcy Code and other
applicable law, shall have the right to treat this Agreement and/or
such Statement of Work as terminated or to retain its rights
thereunder. If Bear Stearns decides to retain its rights under this
Agreement and/or Statement of Work, as the case may be, then (i) on
written request of Bear Stearns, Predictive or the Trustee shall
provide Bear Stearns with any and all information, Deliverables and any
other Works of Authorship held by the Trustee, Escrow Agent or
Predictive; and (ii) Predictive or the Trustee shall not interfere with
the rights of Bear Stearns pursuant to this Agreement including, but
not limited to the right to obtain any information pertaining to the
foregoing from any other entity or individual, including employees,
consultants and former employees and consultants of Predictive.
Predictive acknowledges and consents that the automatic stay imposed by
Section 362 of the Bankruptcy Code shall be automatically lifted,
modified and/or vacated to allow Bear Stearns to realize any and all of
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its rights herein. The provisions of this paragraph shall also apply in
the event that Predictive or the Trustee has not rejected this
Agreement or any Statement of Work. The parties hereby agree and affirm
that the payments already paid by Bear Stearns as of the date of a
rejection under the Bankruptcy Code, as described in the first sentence
hereof, are full consideration for Predictive's obligation and
undertakings under this Agreement and all applicable Statements of
Work. These payments shall not be deemed to be royalty payments for the
purpose of Section 365(n) of the Bankruptcy Code and if Predictive or
the Trustee rejects this Agreement or any Statement of Work and Bear
Stearns decides to retain its rights thereunder, Bear Stearns shall be
relieved from its obligation to make such payments.
10.3. Notwithstanding anything set forth in this Agreement, the assignments
made and licenses granted in this Agreement shall survive the
expiration or termination of the Agreement, regardless of the cause.
SECTION 11: MISCELLANEOUS
11.1. If any provision of this Agreement is declared or found to be invalid,
illegal, unenforceable or void, then both parties shall be relieved of
all obligations arising under such provision, but only to the extent
that such provision is invalid, illegal, unenforceable or void, it
being the intent and agreement of the parties that this Agreement shall
be deemed amended by modifying such provision to the extent necessary
to make it valid, legal and enforceable while preserving its intent or,
if that is not possible, by substituting therefor another provision
that is valid, legal and enforceable and achieves the same objective.
Each party agrees that it will perform its obligations hereunder in
accordance with all applicable laws, rules and regulations now or
hereafter in effect.
11.2. Headings are for reference purposes only.
11.3 Any notices required or permitted to be sent hereunder shall be served
personally or by registered or certified mail, return receipt
requested, reputable overnight delivery services such as Federal
Express, Airborne Express or DHL, or by facsimile with confirmation of
receipt; to the addresses listed above.
11.4. This Agreement shall be interpreted and construed in accordance with
the Copyright laws of the United States and the internal law of State
of New York, without regard to the conflicts of law principles thereof,
and any action brought in relation to this Agreement shall be brought
in a Federal or state court in the City of New York and Licensee and
Licensor hereby irrevocably consent to the jurisdiction of such Courts,
and both parties hereby waiving any claim or defense that such forum is
not convenient or proper. Each party hereby consents to service of
process by any means authorized by New York law (other than by
publication). Each party waives any right to trial by jury with respect
to any dispute, suit, action or proceeding arising out of or relating
to this Agreement or otherwise relating to the relationship of the
parties, whether in contract, tort or otherwise.
11.5. This Agreement may not be modified or altered except by a written
instrument executed by both parties. The failure of either party to
exercise in any respect any right provided for herein shall not be
deemed a waiver of any rights. This Agreement, together with each
Statement of Work hereunder, constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes
and merges all prior proposals, understandings and all other
agreements, oral and written between the parties relating to such
subject matter. The rights and remedies of Bear Stearns under this
Agreement and any Statement of Work are cumulative.
11.6. Neither party may assign this Agreement or any Statement of Work or
delegate any obligations hereunder or thereunder, except that
Predictive may sub-contract some or all of its performance under the
Agreement only with the written consent of Bear Stearns, which shall
not be unreasonably withheld; provided, however, that all obligations
of Predictive under this Agreement shall apply fully to any such
sub-contractor as if it were "Predictive" under this Agreement and
Predictive shall remain fully liable for the performance of such
assignee or sub-contractor hereunder; and Bear Stearns may from time to
time assign this Agreement, in whole or in part, to one or more of its
then affiliates, and to the extent of any such assignment, the relevant
references in this agreement to shall apply to such affiliate.
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11.7. To the extent that, and only to the extent that, this Agreement
otherwise obligates Bear Stearns to reimburse Predictive for any travel
(including lodging, meals or similar expenses), such obligation is
subject to the following conditions and limitations: (a) the travel
expenses may not exceed the expense of travel to the relevant Bear
Stearns facility from the nearest Predictive facility or office, (b)
any such travel must be at the request of Bear Stearns's designated
liaison person, (c) Predictive provides Bear Stearns with a listing of
all of Predictive's support locations and indicating the nearest
support location to Bear Stearns's location, (d) the travel expenses do
not exceed $150 per day plus carrier travel (lowest coach fare), (e)
Predictive makes travel arrangements via Bear Stearns's Travel
Department, and (f) the travel is in accordance with Bear Stearns's
Travel Policies/Procedures.
11.8. Predictive acknowledges that, as is the custom and practice in Bear
Stearns's industry, from time to time Bear Stearns monitors and/or
records certain telephone lines and other communications devices going
into or out of Bear Stearns's premises, and to the extent that any such
monitoring and/or recording occurs relating to any telephone call and
other communication going into or out of Bear Stearns's premises
involving Predictive or any of its employees, agents and
sub-contractors, then Predictive, on behalf of its self and its
employees, agents and sub-contractors, consents thereto or will ensure
such other party consents thereto.
11.9. Predictive shall not use Bear Stearns's or any of its affiliates' name
or trademarks or service marks without Bear Stearns's written consent.
IN WITNESS WHEREOF, the parties, by their duly authorized representatives,
hereto have executed this Agreement as of the day and year noted below.
Bear, Stearns & Co. Inc. Predictive Systems, Inc.
- ----------------------------------- -----------------------------------
/s/ Geryl W. Darington /s/ Ronald Pettengill
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Signature Signature
Geryl W. Darington Ronald G. Pettengill
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Print or Type Name Print or Type Name
Senior Managing Director CEO
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Title Title
7/27/98 7/29/98
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Date Date
8