EXHIBIT 10.23
MASTER LICENSE AGREEMENT
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This Master License Agreement ("Agreement") is made and entered into as
of the 24th day of October, 1996, by and between Merrill Lynch, Pierce, Fenner
& Smith Incorporated, a Delaware corporation, having a principal place of
business at Merrill Lynch World Headquarters North Tower, World Financial
Center, 250 Vesey Street, New York, New York 10281 ("Customer") and Seer
Technologies, Inc., a North Carolina corporation, having a principal place of
business at 8000 Regency Parkway, Cary, NC 27511 ("Licensor").
WITNESSETH
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That, for and in consideration of the mutual promises and covenants
hereinafter contained, the parties hereto agree as follows:
ARTICLE 1 - GRANT AND SCOPE OF LICENSE
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1.1 Licensor hereby grants to Customer a non-exclusive, limited license to use
those software products and related documentation ("Licensed Products")
described on each schedule executed by Licensor and Customer substantially in
the form of Exhibit 1 hereto ("Schedule") for its internal business purposes,
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commencing upon the delivery to Customer of such Licensed Products and
continuing thereafter until terminated in accordance with the provisions of this
Agreement or the applicable Schedule.
1.2 Each Schedule, when executed by an authorized representative of both
parties, shall constitute a separate agreement and except for any provisions
herein which are specifically excluded or modified in such Schedule, each such
Schedule shall incorporate therein all of the terms and conditions of this
Agreement. Each Schedule shall be consecutively numbered to facilitate
identification and shall include a description of the Licensed Products covered
thereunder, the standard published specifications together with other mutually
agreed to specifications for the Licensed Products ("Specifications"), the site
where the Licensed Products are to be installed ("Installation Site"), the date
the Licensed Products are to arrive at the Installation Site ("Scheduled
Delivery Date"), the number of licensed copies, the applicable license fee
("License Fee"), the annual maintenance fee ("Annual Maintenance Fee") and such
other terms and conditions as the parties may wish to include. In the event of
any conflict between the terms of this Agreement and the terms of any Schedule,
the terms of such Schedule shall govern.
1.3 Customer, its parent company or any of its or their subsidiary or
Affiliated Companies, may execute Schedules in accordance with the terms and
conditions of this Agreement. In such event, any such entity shall be considered
the "Customer" as such term is used herein and shall be subject to all of the
terms and conditions of this Agreement, except as expressly provided in the
Schedule. Any such Schedule shall be deemed to be a two-party agreement between
Licensor on the one hand and the Customer entity on the other hand; provided
that any discount applicable to Customer shall apply to such Schedule and such
Schedule shall be counted toward the
calculation of any discount. For purposes of this Agreement, an "Affiliated
Company" means any entity which directly or indirectly (i) controls Customer;
(ii) is controlled by Customer, (iii) is under common control with Customer or
(iv) acquires control of Customer. For purposes of this Agreement, "control"
shall mean the direct or beneficial ownership of a voting interest of over fifty
percent (50%), or the power, directly or indirectly, to elect or exercise a
controlling interest over a majority of the Board of Directors of a corporation
or a majority interest in the management of another type of organization or
entity.
1.4 The manner in which Customer is permitted to use Licensed Products pursuant
to any Schedule to this Agreement shall be designated in the applicable Schedule
in accordance with the following license types "License Type"):
1.4.1 Site License - Licensed Products provided pursuant to this Section
1.4.1 may be installed and simultaneously utilized by Customer on only
those computers that are located at the Installation Site indicated in the
applicable Schedule. Notwithstanding the foregoing, any Site License
granted pursuant to this Section 1.4.1 shall also include the permitted use
of the Licensed Products on any and all workstations, personal or portable
computers electronically connected to a server or host computer located at
such Installation Site as long as such workstations, personal or portable
computers are also located at the Installation Site.
1.5 Customer may make additional copies of each of the Licensed Products for
use at the applicable Installation Site and shall be entitled to keep copies of
the Licensed Products off Customer's premises for purposes of safekeeping,
without payment of an additional license fee therefor. Customer may, at any
time upon written notice to Licensor, transfer any license to use the Licensed
Products to any other Customer site at no additional charge provided however
that Customer's rights at new site do not exceed Customer's rights at the former
site and that all use of Licensed Products at former site ceases. Customer may
use any Licensed Product at any location of Customer on a temporary emergency
backup basis
1.6 As between Licensor and Customer, Licensor retains title to the Licensed
Products provided hereunder and does not convey any proprietary interest therein
to Customer other than the licenses as specified herein.
1.7 Customer acknowledges that Licensor considers the Licensed Products
provided hereunder to be proprietary to Licensor. For as-long as the Licensed
Products are in Customer's possession, Customer agrees that unless Customer has
obtained Licensor's prior written consent (such consent not to be unreasonably
withheld), Customer shall keep the applicable Licensed Products confidential and
prevent disclosure of such Licensed Products to any person, firm or enterprise
other than Customer, its subsidiaries and affiliated companies and its or their
employees (for purposes not inconsistent with Customer's permitted use of the
Licensed Products), employees or representatives of Licensor, or other persons
on Customer's premises for purposes related to Customer's permitted use of the
Licensed Products.
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1.7.1 Notwithstanding the foregoing, Customer shall not be required to
take any steps to keep confidential and prevent disclosure of the Licensed
Products other than those steps Customer normally takes to protect its own
similar confidential information. Customer's obligation of confidentiality
shall not apply to information which: (i) is already known to Customer at
the time of disclosure; (ii) is obtained by Customer from a third party
without restrictions; (iii) is public information; or (iv) is independently
developed by Customer.
1.8 Licensor hereby acknowledges and agrees that Customer shall have the right
to modify any of the Licensed Products provided to Customer hereunder and may
use and combine such with other programs and/or material to form an updated work
provided such rights are granted in the Schedule. If such rights are granted,
Customer's ownership of updated works are subject to Licensor's copyright in its
material contained in the updated works. Customer may not distribute Licensed
Products or updated works outside Customer's internal business purposes.
1.9 Licensor agrees to give Customer discounts for the Licensed Products in
accordance, with the provisions of Exhibit 2 which is attached hereto and made a
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part hereof.
1.10 This Agreement shall commence as of the date first above written and shall
continue in effect thereafter unless and until terminated in accordance with the
provisions of this Agreement.
ARTICLE 2 - DELIVERY; INSTALLATION; ACCEPTANCE
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2.1 Licensor agrees, to deliver the Licensed Products on the Scheduled Delivery
Date to the applicable Installation Site.
2.2 Licensor agrees to install the Licensed Products ready for use and in good
working order at the applicable Installation Site as soon as practicable after
delivery but in no event more than 10 days after delivery. Licensor agrees to
repair any damage caused by Licensor, its employees, agents, or contractors
during installation and Licensor will hold Customer harmless from any and all
claims, losses, or expenses (including reasonable attorneys' fees) arising from
such installation.
2.3 Following successful completion of the installation of each Licensed
Product, Licensor shall tender such Licensed Product to Customer for On-Site
acceptance testing and Customer shall conduct an acceptance test of such
Licensed Product for a thirty (30) day period (the "Acceptance Test"), to
determine if the Licensed Product performs in accordance with: (i) the
Specifications; (ii) selected other test criteria as are mutually agreed to by
Licensor and Customer in the applicable Schedule, [(i) and (ii) are collectively
the "Acceptance Test Criteria")]; Licensor agrees to assist Customer, as needed,
in the performance of such Acceptance Test.
2.4 Customer agrees to notify Licensor in writing within five (5) days after
expiration of the Acceptance Test of either its acceptance or rejection of the
applicable Licensed Product.
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2.4.1 If Customer rejects any Licensed Product, Customer may: (i)
immediately terminate the applicable Schedule without any further
obligation or liability of any kind; or (ii) require Licensor to correct
the deficiencies disclosed by the Acceptance Test Criteria and repeat such
Acceptance Test until successfully completed, reserving the right to
terminate as aforesaid at anytime. Upon any such termination, Customer
agrees to return a copies of the Licensed Products involved, together with
any materials furnished to Customer by Licensor in connection therewith,
without further obligation or liability of any kind to Licensor.
2.4.2 If Customer accepts any Licensed Product, Licensor may invoice
Customer, at any time after the date that Customer has notified Licensor in
writing of the acceptance of such Licensed Product (the "Acceptance Date"),
for the applicable License Fee, and such invoice shall be payable by
Customer within thirty (30) days of Customer's receipt of said invoice.
ARTICLE 3 - SOFTWARE ESCROW
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ARTICLE 4 - DOCUMENTATION AND TRAINING
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4.1 On the Scheduled Delivery Date for each of the Licensed Products, Licensor
shall deliver to Customer at the applicable Installation Site one (1) copy of
its standard operational instructions and documentation for such Licensed
Products. Such operational instructions and program documentation shall
include, but shall not be limited to, the following: a Licensed Products Users'
Guide; a copy of associated control statements required for operation, and use
of the object code (including control statements for assembly, linkage and other
utilities) in machine readable form; and any other documentation used to
describe the Licensed Products and which is provided by Licensor to its other
customers.
4.1.1 The documentation furnished in accordance with Section 4.1 hereof
shall conform to generally accepted industry standards for the use,
operations and internal operating logic of the Licensed Products provided
hereunder.
4.1.2 If the documentation described in Section 4.1 is revised at any time
or if additional documentation is developed by Licensor with respect to the
Licensed Products, Customer shall be entitled to receive, at no charge for
so long as maintenance services are to be provided by Licensor in
accordance with Article 5 hereof, copies of such revised or additional
documentation produced by Licensor.
4.1.3 Customer shall have the right to reproduce any documentation
provided hereunder in order to satisfy its own internal requirements
provided that such reproduction shall solely be for the use of Customer and
shall contain Licensor's proprietary and/or copyright notice(s). If
Customer requests Licensor to furnish additional copies of any
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such documentation, Licensor shall furnish such additional copies to
Customer at Licensor's then current standard charge.
4.2 Additional training, orientation and other support services not otherwise
specified herein or in the applicable Schedule as no cost items will be
furnished by Licensor at Customer's request, at Licensor's standard, published
charges then in effect for same. The location of such training, orientation and
technical support shall be at the applicable Installation Site or at such other
mutually agreed upon location(s). The scheduling for such training, orientation
and technical support shall be determined by Customer.
ARTICLE 5 - MAINTENANCE OF LICENSED PRODUCTS
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5.1 Commencing upon the date of delivery of each Licensed Product and
continuing thereafter in accordance with the provisions of this Agreement,
Licensor agrees to provide the following maintenance services for such Licensed
Product ("Maintenance Services"):
5.1.1 Licensor shall correct any failure of the Licensed Product to
operate in accordance with the applicable Acceptance Test Criteria.
5.1.2 Licensor shall provide to Customer all revisions, updates,
improvements, modifications, corrections, releases and enhancements (the
"Updates") to the Licensed Products. Such Updates shall not degrade the
performance, functioning or operation of the Licensed Products provided
hereunder. If any such Updates are acceptable to Customer, Licensor agrees
to give Customer all necessary telephonic assistance to install same, at no
cost to Customer. If any such Update is not acceptable to Customer,
Customer may refuse to accept same, and, in such event, Licensor agrees to
maintain the Licensed Product in the form in effect on the date Licensor
requested Customer to accept any such Update. For purposes of this
Agreement, an Update once incorporated into any Licensed Product hereunder
shall be considered a "Licensed Product" for all purposes hereunder.
5.1.3 Licensor shall make available to Customer, at no additional cost,
any and all modifications to each Licensed Product that may be required to
enable same to operate in conjunction with any new generally available
releases of the operating system of the equipment on which such Licensed
Product is installed as soon as Licensor has installed and operated said
modification for its own internal use or for the use of any one of
Licensor's other commercial customers.
5.1.4 Licensor shall provide remote technical assistance and consultation
to Customer through its Action Line Telephone Support Services, Monday
through Friday, from 7:00am to 7:00pm EST. Action Line representatives
will record all error reports and coordinate responses in the following
manner:
For all reported errors, Licensor will assign a Call Tracking Number.
Calls will be returned according to the Severity Levels indicated in Tables
I - III below.
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Licensor may provide repairs by furnishing Maintenance Releases (MNT's) or
Corrective Service Disks (CSD's) for Customer installation.
Table I: Severity Level Definitions:
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Severity Level Definition
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Severity Level 1 All environments. A critical condition affecting Customer's
production environment with no acceptable workaround. Requires
constant dedicated Customer and Licensor resources.
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Severity Level 2 All environments. A severe restriction, but not a complete
obstacle, to Customer's ability to use the Licensed Products. No
acceptable workaround. Licensor may request Customer resources
as necessary.
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Severity Level 3 All environments. A limitation on Customer's use of the Licensed
Products, but an acceptable workaround exists.
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Table II: Response Times
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Severity Level Initial Response Temporary Schedule Permanent
Resolution Date Resolution
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1 1 hour 1 day ASAP Emergency fix
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2 1 day 7 days 30 days CSD
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3 2 days 30 days 60 days MNT
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Initial Response: The time to return a call to begin error investigation.
Temporary Resolution: The offer of a temporary fix or workaround, if
available, for acceptance by Customer.
Scheduling Date: The date on which Licensor will schedule the availability
date of a permanent fix.
Permanent Resolution: The mechanism for providing the final fix.
Table III Availability of Error Correction Services
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Period Following Severity 1 Severity 2 Severity 3
Superseding Release
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12 Months after Release Date Emergency Fix CSD MNT
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12-18 Months Emergency Fix CSD Not Available
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18-24 Months Emergency Fix Not Available Not Available
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Over 24 Months Not Available Not Available Not Available
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5.1.5 Licensor shall correct any malfunction, defect or nonconformity in
each Licensed Product provided hereunder following telephonic
notification by Customer to Licensor of
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any such malfunction, defect or nonconformity which prevents the Licensed
Product from performing in accordance with the Acceptance Test Criteria,
the documentation provided hereunder and such other warranties,
descriptions and specifications as may be set forth herein or in a
Schedule. If in the determination of Customer, any malfunctions, defect or
nonconformity cannot be satisfactorily corrected through such telephone
communication, Licensor agrees to respond by having at least one (1)
maintenance person trained in the Licensed Products at the Installation
Site within twenty-four (24) hours of Customer's initial request. If such
problem is the result of Customer misuse of Licensed Product or unrelated
to Licensed Product, Customer shall reimburse Licensor at Licensor's then
current published standard rates for such services.
5.1.6 Licensor will repair any damage caused by its employees, agents, or
contractors while performing the Maintenance Services and Licensor will
hold Customer harmless from any and all claims, losses, or expenses
(including reasonable attorneys' fees) arising from such Maintenance
Services.
5.2 Commencing upon the date of delivery of each Licensed Product and for a
period of ninety (90) days from the Acceptance Date thereof, Licensor shall
provide Maintenance Services at no charge to Customer. Thereafter, Licensor
shall provide Maintenance Services for the Annual Maintenance Fee set forth on
the applicable Schedule, which shall not exceed eighteen percent (18%) of the
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applicable License Fee set forth on the applicable Schedule.
5.2.1 Notwithstanding anything to the contrary contained in Section 5.2,
Licensor shall not increase the Annual Maintenance Fee for any of the
Licensed Products unless Licensor increases its list prices for the
Licensed Products on which the Maintenance Fee is calculated for all of
Licensor's customers generally, whereupon Licensor may then increase the
Annual Maintenance Fee effective upon the second and each succeeding
anniversary of the Acceptance Date of the Licensed Products involved
provided that such increase shall not exceed five percent (5%) of the
Annual Maintenance Fee in effect for the twelve (12) month period
immediately prior to such increase and provided further that after any such
increase the charge payable by Customer shall not exceed Licensor's then
current standard charge for such service.
5.2.2 Licensor agrees to invoice Customer annually in advance for the
Annual Maintenance Fee at least sixty (60) days prior to the anniversary of
the Acceptance Date for the Licensed Product involved. Each such invoice
shall be payable within thirty (30) days of the anniversary of the
Acceptance Date; provided, however, that Customer shall have the right to
terminate Maintenance Services at any time upon written notice to Licensor.
5.2.3 Customer may reinstate Maintenance Services for any Licensed Product
hereunder by paying a reinstatement charge consisting of an amount
equivalent to the pro rata portion of Annual Maintenance Fee that would
have been due hereunder for the period elapsed since termination of
Maintenance Services; provided, however, that such
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reinstatement charge shall not exceed thirty five percent (35%) of the
license fee for such Licensed Product in effect at the time of
reinstatement.
ARTICLE 6 - WARRANTIES
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6.1 Licensor warrants to Customer that: (i) Licensor has the right to furnish
to Customer the Licensed Products and other materials covered hereunder free of
all liens, claims, encumbrances and other restrictions except as stated to the
contrary herein; (ii) Customer shall quietly and peacefully possess the Licensed
Products and other materials furnished hereunder subject to and in accordance
with the provisions of this Agreement; and (iii) Customer's permitted use and
possession of the Licensed Products and other materials will not be interrupted
or otherwise disturbed by any entity asserting a claim under or through
Licensor.
6.2 Licensor warrants that each of the Licensed Products for a period of ninety
(90) days after installation and acceptance: (i) shall be free from any defects
in material; and (ii) shall perform substantially in all material respects in
accordance with the applicable Acceptance Test Criteria and Licensor's operating
and user documentation applicable to the version of the Licensed Products
provided to Customer hereunder and such other warranties, descriptions and
specifications set forth hereunder.
6.3 Licensor warrants to Customer that the documentation provided by Licensor
hereunder will faithfully and accurately reflect the Licensed Products provided
to Customer hereunder.
6.4 Licensor warrants that commencing upon the delivery of each Licensed
Product and for a period of ninety (90) days from the Acceptance Date thereof,
Licensor shall, at no charge to Customer, maintain such Licensed Product in
accordance with Article 5, and thereafter for so long as Customer has subscribed
to Maintenance Services hereunder.
6.5 Licensor warrants that any Maintenance Services or other services provided
by Licensor hereunder will be performed in a professional manner by qualified
personnel.
6.6 Licensor further warrants and represents that the Licensed Products
provided to Customer hereunder are compliant with the Standards For Year 2000
Operation (as such term is defined below). Licensor agrees to provide, upon
request by Customer, evidence sufficient to demonstrate adequate testing of the
Licensed Products to meet the foregoing requirements. For the purposes of this
Agreement, the Standards For Year 2000 Operation shall mean that the occurrence
in or use by the Licensed Products of dates on or after January 1, 2000 (the
"Millennial Dates") will not adversely affect the performance of the Licensed
Products with respect to date-dependent data, computations, output, or other
functions (including, without limitation, calculating, comparing and sequencing)
and that the Licensed Products will create, store, process and output
information related to or including Millennial Dates without errors or
omissions. In the event that the Licensed Products fail to do so comply,
Licensor shall, promptly upon request by and at no charge to Customer, furnish
such materials and services as shall be necessary to bring the Licensed Products
into-compliance.
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ARTICLE 7 - PATENT AND COPYRIGHT INRINGEMENT
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7.1 Licensor agrees to defend and/or handle at its own expense, any claim or
action against Customer, its parent company, and/or its or their subsidiaries or
affiliated companies, for actual or alleged infringement of any patent,
copyright or similar property right (including, but not limited to,
misappropriation of trade secrets) based upon the Licensed Products or any other
materials furnished hereunder by Licensor or based on Customer's use thereof.
7.1.1 Licensor shall have the sole right to conduct the defense of any
such claim or action and all negotiations for its settlement or compromise,
unless otherwise mutually agreed to in writing between the parties hereto.
7.2 Licensor further agrees to indemnify and hold Customer, its parent company,
and/or its or their subsidiaries and affiliated companies, harmless from and
against any and all liabilities, losses, costs, damages, and expenses (including
reasonable attorneys' fees) associated with any such claim or action incurred by
Customer, its parent company, and/or its or their subsidiaries or affiliated
companies in accordance with this Article 7.
7.2.1 Licensor shall have no liability for any claim of infringement based
on: a) use of an release of Licensed Products modified for or by Customer
if such infringement would have been avoided by the use of an unmodified
release of Licensed Products that Licensor had provided to Customer in
advance of any such claim; or b) the combination, operation, or use of any
Licensed Products furnished under this Agreement with programs or data not
furnished by Licensor if such infringement would have been avoided by the
use of the Licensed Products without such programs or data.
7.3 Both Licensor and Customer agree to give each other prompt written notice
of any threat, warning or notice of any such claim or action against the other
or any other user or any supplier of components of the Licensed Product covered
hereunder, which could have an adverse impact on Customer's use of same,
provided such party knows or has reason to know of such claim or action.
ARTICLE 8 - CONFIDENTIAL INFORMATION OF CUSTOMER
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8.1 During the term of this Agreement and for a period of five (5) years from
the date of termination of this Agreement, Licensor will regard and preserve as
confidential all information related to the business of Customer, its parent
company, and/or its or their subsidiaries, affiliated companies or clients that
may be obtained by Licensor from any source as a result of this Agreement.
Licensor will not, without first obtaining Customer's prior written consent,
disclose to any person, firm or enterprise, or use for its benefit, any
information relating to the pricing, methods, processes, financial data, lists,
apparatus, statistics, programs, research, developments or related information
of Customer, its parent company, and/or its or their subsidiaries, affiliated
companies or clients concerning past, present or future business activities of
said entities.
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8.1.1 Notwithstanding the foregoing, Licensor shall not have an obligation
of confidentiality, with respect to information provided by the Customer
which: (i) is already known at the time of disclosure or is properly
obtained from a third party (without restriction); (ii) is public
information; (iii) is independently developed by a party; or (iv) is
required to be disclosed by law or court order (provided, however, that the
disclosing party shall advise the other party of such requirement in
advance of disclosure).
ARTICLE 9 - TAXES
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9.1 Customer agrees to pay (in accordance with Section 9.2 below) all taxes
levied by a duly constituted taxing authority against or upon the Licensed
Product or their use, or arising out of this Agreement, exclusive, however, of
Licensor's personal property taxes and taxes based on Licensor's income, which
taxes shall be paid by Licensor.
9.2 Customer agrees to pay any tax for which it is responsible under the terms
of Section 9.1 hereof, which may be levied on or assessed against Customer
directly, and, if any such tax is paid by Licensor, to reimburse Licensor
therefor, upon receipt by Customer of proof of payment acceptable to Customer.
9.3 Licensor shall promptly notify Customer of any tax liability or potential
tax liability, and of any pending or threatened tax audit or other proceeding
that could lead to the imposition of tax liability against Customer, and shall
afford Customer all reasonable opportunity to participate in any such audit or
preceding affecting its interests. Customer shall not be liable for (and
Licensor shall pay) any tax liability imposed as a result of any audit where
Customer is not provided with such notice and opportunity to participate.
ARTICLE 10 - MATERIAL BREACH
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10.1 In the event of any material breach of, or material misrepresentation
relating to, any Schedule by either party, the other party may terminate this
Agreement or said Schedule by giving thirty (30) days' prior written notice
thereof and/or pursue any other remedies and rights at law or in equity;
provided, however, that this Agreement or such Schedule will not terminate at
the end of said thirty (30) days' notice period if the party in breach has cured
the misrepresentation or breach of which it has been notified prior to the
expiration of said thirty (30) days.
10.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE, ONE TO THE OTHER, FOR INDIRECT,
SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE
FURNISHING, PERFORMANCE, OR USE OF THE LICENSED PRODUCTS AND/OR SERVICES
PROVIDED FOR IN THIS AGREEMENT, EXCEPT TO THE EXTENT SUCH DAMAGES ARE INCLUDED
IN AN AWARD AGAINST CUSTOMER RESULTING FROM A CLAIM FOR WHICH CUSTOMER IS
INDEMNIFIED HEREUNDER AND EXCEPT FOR PERSONAL INJURY OR DEATH, OR DAMAGE TO REAL
PROPERTY TO THE EXTENT SUCH PERSONAL INJURY, DEATH, OR DAMAGE
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TO REAL PROPERTY IS CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF THE OTHER
PARTY.
ARTICLE 11 - EXCUSABLE DELAYS
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11.1 In no event shall either party be liable one to the other, for any delay or
failure to perform hereunder, which delay or failure to perform is due to causes
beyond the control of said party, including, but not limited to, acts of God;
acts of the public enemy; acts of the United States of America, or any state,
territory or political division of the United States of America, or of the
District of Columbia; fires; floods; epidemics; quarantine restrictions;
strikes; freight embargoes; and unusually severe weather conditions.
11.1.1 Notwithstanding the provisions of Section 11.1 hereof in every case
the delay or failure to perform must be beyond the control and without the
fault or negligence of the party claiming excusable delay.
11.2 Performance times under any Schedule shall be considered extended for a
period of time equivalent to the time lost because of any delay which is
excusable under this Article 11. If any such excusable delay shall last for a
period of more than thirty (30) consecutive calendar days, the party not relying
on the excusable delay, at its option, may terminate such Schedule.
ARTICLE 12 - THIRD PARTY CLAIMS
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12.1 Each party will indemnify, defend, and hold harmless the other from any
claims, losses, or expenses (including reasonable attorneys' fees) arising from
third party claims relating to or arising out of (i) the negligence, breach of
contract, or misrepresentation of such party, its officers, employees, agents,
or representatives, or (ii) the assertion of any strict liability standard.
ARTICLE 13 - NOTICES
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13.1 Any notices or other communications required or permitted to be given or
delivered under this Agreement shall be in writing (unless otherwise
specifically provided herein) and shall be sufficiently given if delivered
personally or mailed by first-class mail, postage prepaid, to Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Merrill Lynch World Headquarters, World
Financial Center, South Tower, New York, NY 16080-6122 Attention: Group Manager
Technology Acquisitions, and to Seer Technologies, Inc. 8000 Regency Parkway,
Cary, NC 27511, Attention: General Counsel or to such other address or addressee
as either party may from time to time designate to the other by written notice.
13.2 Any such notice or other communication shall be deemed to be given when it
is personally delivered or as of the date it is placed in the mails in the
manner specified.
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ARTICLE 14 - ADVERTISING OR PUBLICITY
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14.1 Neither party shall use the name or symbol of the other in advertising or
publicity releases without securing the prior written consent of the other.
ARTICLE 15 - ASSIGNMENT
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15.1 This Agreement shall be binding upon the parties and their respective legal
successors and permitted assigns.
15.2 Neither party may assign this Agreement and/or any Schedules hereunder,
along with any or all of the respective rights and obligations without the prior
written consent of the other party and any such attempted assignment shall be
void; provided however, that, upon written notice to Licensor, Customer may
assign this Agreement and/or any Schedules hereunder, along with any or all of
the respective rights and/or obligations to its parent company or to one of its
subsidiaries or affiliated companies, without the consent of Licensor and
provided, further, that upon written notice to Customer, Licensor may assign
this Agreement and/or any Schedules hereunder, along with any or all of the
respective rights and/or obligations, to an assignee in connection with an
assignment by Licensor of all of its rights and obligations with respect to a
Licensed Product subject thereto, without the consent of Customer provided
however, for as long as Maintenance Services are provided pursuant to this
Agreement and/or any Schedule, if such assignee is a direct competitor of
Customer's in the retail brokerage industry, such assignment is subject to
Customer's consent, which consent shall not be unreasonably withheld. In the
event that Customer fails to consent to such assignment, Licensor shall have the
right to terminate the Maintenance Services.
ARTICLE 16 - GOVERNTNG LAW
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16.1 The validity of this Agreement, the construction and enforcement of its
terms, and the interpretation of the rights and duties of the parties shall be
governed by the laws of the State of New York.
ARTICLE 17 - MODIFICATION-AMENDMENT, SUPPLEMENT AND WAIVER
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17.1 No modification, amendment, supplement to or waiver of this Agreement or
any of its provisions shall be binding upon the parties hereto unless made in
writing and duly signed by both parties.
17.2 A failure or delay of either party to this Agreement to enforce at any time
any of the provisions of this Agreement, or to exercise any option which is
herein provided, or to require at any time performance of any of the provisions
hereof, shall in no way be construed to be a waiver of such provision of this
Agreement.
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ARTICLE 18 - SEVERABILITY
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18.1 In the event any one or more of the provisions of this Agreement shall for
any reason be held to be invalid, illegal or unenforceable, the remaining
provisions of this Agreement shall be unimpaired, and the invalid, illegal or
unenforceable provision shall be replaced by a mutually acceptable provision,
which being valid, legal and enforceable, comes closest to the intention of the
parties underlying the invalid, illegal or unenforceable provision.
ARTICLE 19 - EXHIBITS AND ATTACHMENTS
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19.1 The terms and conditions of any and all Attachments, Exhibits and other
attachments to this Agreement are incorporated herein by this reference and
shall constitute part of this Agreement as if fully set forth herein.
ARTICLE 20 - HEADINGS
---------------------
20.1 The headings in this Agreement are for purposes of reference only and
shall not in any way limit or affect the meaning or interpretation of any of the
terms hereof.
ARTICLE 21 - ENTIRE AGREEMENT
-----------------------------
21.1 This Agreement, together with all the Attachments, Exhibits and other
attachments hereto, constitutes the entire Agreement between the parties and
supersedes all previous agreements, promises, proposals, representations,
understanding and negotiations, whether written or oral between the parties
respecting the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto, each acting under due and proper
authority, have executed this Agreement as of the day, month and year first
above written.
SEER TECHNOLOGIES, INC. MERRILL LYNCK PIERCE, FENNER
& SMITH INCORPORATED
By: ____________________________ By: _____________________________
Name: __________________________ Name: ___________________________
Title: _________________________ Title: __________________________
Date: __________________________ Date: ___________________________
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EXHIBIT 1
---------
SCHEDULE NO. 01
---------------
This Schedule, dated as of ____________, 19___, is issued pursuant to, and
incorporates herein, the Master License Agreement dated as of ____________,
19___, ("Agreement"), by and between Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Customer") and .("Licensor'). Any term not otherwise defined
herein shall have the meaning ascribed to it in the Agreement.
DESCRIPTION OF Scheduled Delivery Date:
- --------------
LICENSED PRODUCTS:
- ------------------
Installation Site:
- ------------------
License Fee: $
------------ __________
Annual Maintenance Fee: $
----------------------- ___________
Specifications: See Attachment 1 annexed hereto and made a part hereof.
- -------------- ------------
IN WITNESS WHEREOF, the parties hereto, each acting with proper authority, have
executed this Schedule No.___ as of the day, month and year first above written.
MERRELL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By: ____________________________ By: _______________________________
Name: __________________________ Name: _____________________________
(type or print) (type or print)
Title: _________________________ Title: ____________________________
Date: __________________________ Date: _____________________________
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ATTACHMENT 1 TO SCHEDULE NO. 01
-------------------------------
STANDARD PUBLISHED SPECIFICATIONS TO LICENSED PRODUCTS
------------------------------------------------------
15
EXHIBIT 2
---------
Discount Schedule
Customer and any other entity authorized by the Agreement to execute a Schedule
to this Agreement by Section 1.3 will be entitled to a discount of twenty
percent (20%) from Licensor's then current list prices for the applicable
software.
16