EXHIBIT 10.105
[LOGO] Perpetual Software SPSS Inc. Sales Telephone 800.543.2185
License Agreement 233 South Wacker Drive Sales Fax 312.651.3668
Chicago, IL 60606-6307
312.651.3000
SPSS Inc. ("SPSS"), a ____ corporation with a place of business at the address
set forth above, and Quaker Fabric Corporation of Fall River, a Massachusetts
corporation with a place of business at the address set forth above ("LICENSEE")
agree as follows:
1. Grant and Schedules
1.1 (a) SPSS grants to LICENSEE and its Affiliates a worldwide, non-exclusive,
paid-up, perpetual, irrevocable license to use, load, execute, display,
perform, reproduce, configure and operate the computer software products
specified in SCHEDULE A attached hereto or subsequently executed by the
parties (hereinafter the "SOFTWARE").
(b) SCHEDULE A, as amended from time to time by the written agreement of
the parties, which is made a part hereof with the same effect as if each
and every provision thereof were set forth in full herein, also provides
details of any other conditions related to the license granted hereunder
and any other matters that are in addition to those set forth in this
Agreement. In the event of any inconsistencies between the terms of this
Agreement and any SCHEDULE hereto, the terms and conditions in a given
SCHEDULE hereto shall take precedence over the terms and conditions in this
Agreement.
(c) For purposes of this Agreement, the term "Affiliates" means, with
respect to any party, any other entity Controlling, Controlled by or under
common Control with such party, where the term "Control" and its
derivatives means possessing, directly or indirectly, ownership of fifty
percent (50%) or more of the voting securities of an entity.
1.2 SPSS will provide the SOFTWARE to the site designated by LICENSEE within
five (5) days of the Effective Date or for any subsequent purchase within
five (5) days of the Effective Date of the applicable Schedule.
1.3 LICENSEE may from time to time order other software products from SPSS
pursuant to this Agreement and the appropriate SCHEDULE, and if such orders
are accepted in writing by SPSS, these products shall be considered to be
included in the definition of SOFTWARE. LICENSEE may submit subsequent
orders for other products SPSS makes available under this Agreement.
1.4 LICENSEE may make and operate a reasonable number of copies of Client and
Server SOFTWARE for operations, archival and backup purposes, in each case
subject to compliance with the license terms for such SOFTWARE set forth in
SCHEDULE A hereto. All copies of SOFTWARE shall remain subject to all terms
of this Agreement, and shall include the copyright notice and any other
proprietary notice set forth on the electronic copy of the SOFTWARE
delivered by SPSS to LICENSEE, and at a minimum shall include the
following:
"Copyright SPSS Inc. ______ (year)
Licensed Property of SPSS Inc.
All rights reserved"
This notice must appear internally in machine-readable form on each
electronic copy of the SOFTWARE. LICENSEE further agrees to complete the
customization process described in the documentation before making any
copies of the SOFTWARE.
1.5 SPSS will provide to LICENSEE one (1) electronic copy of the printed manual
with the master copy of the SOFTWARE delivered in accordance with Section
1.2 above. LICENSEE shall have the right to make a reasonable number of
copies of the manual and LICENSEE and its Affiliates shall have the right
to use such manual in connection with the license granted in Section 1.1
above.
1.6 Except as expressly set forth herein, SPSS retains all title and ownership
rights to the SOFTWARE, including all copies duplicated by LICENSEE under
this Agreement.
1.7 LICENSEE may permit use of and access to the SOFTWARE under this Agreement
by LICENSEE's or its Affiliates' (a) third party consultants, agents,
outsourcers and other contractors who are acting on behalf of or providing
services to LICENSEE or its Affiliates, or (b) through the SOFTWARE's
web-enabled interfaces, LICENSEE'S customers, vendors, suppliers or other
business partners who have a need to access or exchange data with the
SOFTWARE in order to view and generate reports and data (collectively,
"Authorized Third Parties"). In each case, LICENSEE shall require that such
third parties accessing or using the SOFTWARE comply with the relevant
restrictions contained herein.
2. Maintenance
2.1 SPSS will provide LICENSEE with on-going maintenance (as described in this
Section 2) of the SOFTWARE (and all subsequent releases thereof)
("Maintenance") for the Maintenance Term described in Section 3.3 hereof.
2.2 Maintenance, as used in this Agreement, includes (i) SPSS's provision to
LICENSEE of all enhancements, upgrades, new releases, corrections and
improvements to the SOFTWARE and manuals, when and if developed by SPSS or
its Affiliates and as otherwise set forth in SCHEDULE C attached hereto,
(ii) SOFTWARE error or deficiency correction as further described below and
in SCHEDULE C attached hereto; and (iii) technical assistance via the
telephone or email to LICENSEE's designated support representative as
further described below and in SCHEDULE C attached hereto. Maintenance
shall cover the current and one (1) prior release of the SOFTWARE, provided
that in no case shall SPSS discontinue Maintenance for any release of the
SOFTWARE sooner than 12 months following its delivery to LICENSEE. Unless
otherwise specified in this Agreement or in SCHEDULE C, maintenance does
not cover hardware, operating system, network or third party software not
provided by SPSS. Any troubleshooting by SPSS in relation to such third
party items will, with the prior written agreement of LICENSEE, be
considered Consulting Services and be charged for and treated in accordance
with Section 6 below.
2.3 SPSS shall be required to provide technical support only to the technical
support and information technology personnel of LICENSEE.
2.4 SPSS and LICENSEE shall execute concurrently with this Agreement a
"preferred beneficiary" source code escrow agreement with DSI Technology
Escrow Services (the "Escrow Agent"), and such escrow agreement is attached
hereto as SCHEDULE D (the "Escrow Agreement"), for the deposit of the
Source Code Form (as defined below) of the SOFTWARE into escrow no later
than five days following the execution hereof. SPSS hereby grants to
LICENSEE a worldwide, perpetual, irrevocable, royalty-free, paid-up right
and license, to (a) use, execute, load, copy, modify, prepare derivative
works, display and perform all or a portion of the Source Code Form of the
SOFTWARE to support, correct and enhance the SOFTWARE for the internal
business purposes of LICENSEE and its Affiliates; and (b) compile such
Source Code Form (including modifications thereto and derivative works
thereof) into object code form and use and execute such object code for the
internal business purposes of LICENSEE and its Affiliates. As specified in
the Escrow Agreement, the LICENSEE shall be entitled to access the Source
Code Form of the SOFTWARE only upon the occurrence of one or more of the
following events triggering release of the Source Code Form of the
SOFTWARE: (i) SPSS's material breach of its, maintenance or support
obligations, which breach is not cured within thirty (30) days following
notification thereof by LICENSEE; (ii) the termination of this Agreement by
LICENSEE pursuant to Section 5.2(b) hereof, (iii) SPSS's failure to
continue to do business in the ordinary course, (iv) SPSS becomes or is
declared insolvent or bankrupt, is the subject of any proceedings relating
to its liquidation, insolvency or for the appointment of a receiver or
similar officer for it, makes an assignment for the benefit of all or
substantially all of its creditors or enters into an agreement for the
composition, extension or readjustment of all or substantially all of its
obligations, or (v) SPSS fails to provide an update of the SOFTWARE which
is compatible with a new version of the IBM OS400 operating system within
one year following IBM's general release of such new version (collectively,
"Release Conditions"). As used above, for purposes of this Agreement, the
term "Source Code Form" shall means a form of software code in which a
computer program's logic is easily deduced by a human being with reasonable
skill in the art. Notwithstanding the foregoing, this Section 2.4 shall not
apply to "Essbase/400" software licensed by SPSS from Hyperion Solutions
Corporation, provided, however, that in the event of the occurrence of any
Release Condition as set forth above, LICENSEE shall have the right to
procure licenses, support and other services directly from Hyperion
Solutions Corporation for use in connection with SOFTWARE, and SPSS shall
secure on behalf of LICENSEE a credit with Hyperion Solutions Corporation
(or its Affiliate, as the case may be) in an amount equal to amounts paid
by LICENSEE to SPSS for "Essbase" software maintenance.
2.5 During the Maintenance Term, SPPS shall make available to LICENSEE the
training courses for the SOFTWARE in accordance with SCHEDULE E attached
hereto and at the prices set forth therein.
3. Payments
3.1 Subject to the terms and conditions hereof, LICENSEE agrees to pay SPSS the
License Fees specified in SCHEDULE A within one hundred and twenty (120)
days from the Effective Date, provided that the SOFTWARE is not returned by
LICENSEE to SPSS or this Agreement is not terminated by LICENSEE as a
result of SPSS's breach of its warranty obligations prior to such 120th day
and fails to cure the breach of warranty obligation in accordance with the
cure period set forth in Section 5.2a. In addition, LICENSEE shall pay SPSS
such amounts shown in each Statement of Work and/or Services Authorization
Form for Consulting Services within sixty (60) days from the date that
LICENSEE accepts the relevant deliverables or services. SPSS shall render
invoices in accordance with the schedule set forth in each such Statement
of Work and/or Services Authorization Form for Consulting Services. All
amounts are non-refundable except where otherwise indicated in this
Agreement or as provided by law.
3.2 If LICENSEE orders and SPSS accepts a subsequent order per Section 1.3,
then LICENSEE agrees to pay the applicable licensee fees for the SOFTWARE
within sixty (60) days from the date of LICENSEE's acceptance of such
SOFTWARE.
3.3 (a) LICENSEE shall pay fees ("Maintenance Fees") in respect of the
Maintenance services as set forth in this Section 3.3. SPSS shall provide
Maintenance to LICENSEE for every period for which LICENSEE pays
Maintenance Fees as set forth in this Section 3.3. The initial period for
which SPSS shall provide Maintenance
to LICENSEE, and LICENSEE shall pay the Maintenance Fees set forth in
Section 3.3(b) below, shall be for the period starting upon the Effective
Date and ending upon the first anniversary thereafter (the "Initial
Period"). Thereafter, SPSS' obligation to provide Maintenance, and
LICENSEE's obligation to pay the corresponding Maintenance Fees for such
Maintenance, shall automatically renew for additional successive terms of
one (1) year upon expiration of the Initial Period and each anniversary of
the expiration of the Initial Period (the Initial Period, and each such
annual period, are hereinafter referred to individually as an "Annual
Maintenance Period", and collectively, the "Maintenance Term"), unless
written notice of non-renewal of Maintenance is provided to SPSS by
LICENSEE at least forty-five (45) days prior to the next renewal date.
(b) For the Initial Period, the Maintenance Fee shall be $25,400.
Thereafter, the annual Maintenance Fee shall be $31,750, subject to
increase by SPSS upon written notice to LICENSEE not less than sixty (60)
days prior to the expiration of the then-current Annual Maintenance Period
at a rate not to exceed a percentage equal to the published U.S. Bureau of
Labor Statistics consumer price index (all cities' average) for the
immediately preceding calendar year.
(c) LICENSEE shall have the right to reinstate maintenance services
following its election not to renew maintenance at any time, provided,
however, that if LICENSEE elects to resume Maintenance for the SOFTWARE
following non-renewal, LICENSEE shall pay in advance a reinstatement fee
equal to ten percent (10%) of the Maintenance Fees that otherwise would
have become due for each year in which LICENSEE elected not to receive
Maintenance, plus a pro-rated portion of the Maintenance Fee due for the
balance of the next Annual Maintenance Period.
3.4 All payments are exclusive of any tariffs, duties or taxes imposed or
levied by any government or governmental agency. LICENSEE shall be liable
for payment of all such taxes, however designated, levied or based on
LICENSEE's possession or use of the SOFTWARE or on this Agreement,
including without limitation, state or local sales, use, value-added and
personal property tax, but excluding any tax on the net income of SPSS.
3.5 Notwithstanding anything to the contrary in this Agreement, to the extent
that SPSS is late in delivering or providing to LICENSEE any product or
service that SPSS is required to deliver or make available to LICENSEE
hereunder, the time for performance of LICENSEE's obligations hereunder
related to such product or service, including payment obligations, shall be
extended for a corresponding period of time.
4. Restricted Use
4.1 The Server SOFTWARE may be installed and operated under this Agreement only
on computer servers which are owned, controlled or leased by LICENSEE or
its Affiliates or authorized third parties.
4.2 LICENSEE agrees to use the SOFTWARE only the internal requirements of
LICENSEE or its Affiliates and not for commercial timesharing, rental, or
service bureau use.
4.3 Subject to the software escrow provisions set forth in Section 2.5 hereof,
LICENSEE agrees not (a) to create, or attempt to create, or authorize or
help others to create the source code from the SOFTWARE furnished pursuant
to this Agreement, or (b) to reverse engineer or decompile the SOFTWARE.
5. Term And Termination
5.1 This Agreement shall commence on the date hereof and continue in effect
indefinitely, unless earlier terminated in accordance with this Section 5.
5.2 (a) If either party materially defaults in the performance of any of its
duties or obligations under this Agreement, which default is not cured
within 30 days after written notice is given to the defaulting party
specifying such default, the party not in default may, by giving written
notice thereof to the defaulting party, terminate this Agreement as of the
date of receipt by the defaulting party of such notice.
(b) Subject to Title 11, United States Code, if either party becomes or is
declared insolvent or bankrupt, is the subject of any proceedings relating
to its liquidation, insolvency or for the appointment of a receiver or
similar officer for it, makes an assignment for the benefit of all or
substantially all of its creditors or enters into an agreement for the
composition, extension or readjustment of all or substantially all of its
obligations, then the other party may, by giving written notice thereof to
such party, terminate this Agreement as of a date specified in such notice
of termination.
(c) LICENSEE shall have the right to terminate this Agreement as set forth
in 7.2, if SPSS fails to cure in the timeframe set forth in Section 5.2a
above, and 8.4.
5.3 Upon termination of this Agreement by SPSS pursuant to Section 5.2(a) or
5.2(b) above, LICENSEE shall pay promptly any undisputed fees which may be
due. Notwithstanding anything to the contrary, this Section 5.3 and the
following additional Sections and Articles shall survive the termination of
this Agreement for any reason: 1.1, 1.4, 1.5, 1.6, 1.7, 2.1 through 2.5,
3.1, 3.3, 3.4, 4.1 through 4.4, 6.2, 7 and 8. For the avoidance of doubt,
once LICENSEE has paid the full amount of the License Fee specified in
SCHEDULE A, the licenses granted to LICENSEE in Section 1.1 hereof and
SCHEDULE A hereto and all related rights hereunder shall become irrevocable
and will survive any termination of this Agreement for any reason other
than termination by LICENSEE under Section 7.2, and SPSS shall have no
right to terminate such licenses for any reason.
6. Consulting Services
6.1 From time to time during the term of this Agreement as mutually agreed by
the parties, SPSS may provide LICENSEE certain Consulting Services such as
development of SOFTWARE customizations, training and the like. For each
Consulting Services project the parties will agree in advance a written
Statement of Work and/or Services Authorization Form (each, a "Statement of
Work"), which will contain a description of the Consulting Services to be
performed, a description of and specifications for the deliverables to be
provided to LICENSEE as a result of such Consulting Services
("Deliverables"), an estimated timeline, fees, and all additional terms
that are applicable to the project. A Statement of Work must be signed by
both parties prior to SPSS beginning the project and it may only be
modified by a change order signed by both parties. Each Statement of Work
(including any executed change order) shall be deemed a part of this
Agreement. In the event of any conflict between the terms of this Agreement
and a Statement of Work, the terms of the Statement of Work shall prevail.
In the event that any Statement of Work contains one or more fee estimates,
the parties agree that in no event shall the actual fees charged by SPSS to
LICENSEE for the completion of the work set forth therein exceed one
hundred and ten percent (110%) of such fee estimates unless LICENSEE is
requesting work to be performed that is different than what is set forth in
the particular Statement of Work.
6.2 Except as otherwise agreed in a Statement of Work on a case-by-case basis,
LICENSEE shall own all right, title and interest (including, without
limitation, all patents, copyrights, trade secrets, and other intellectual
property) in and to all Deliverables, and any ideas, know-how and programs
which may be developed by SPSS or a subcontractor as a result of the
provision of Consulting Services to LICENSEE hereunder. SPSS hereby agrees
to assign to LICENSEE and, at the request of SPSS, shall execute and
deliver to LICENSEE without further consideration, such documents,
assignments and instruments required by LICENSEE in order to evidence and
effect the foregoing assignments. Notwithstanding anything to the contrary
herein, SPSS and its personnel shall be free to use and employ the
generalized skills and expertise resulting from its provision of the
Consulting Services.
6.3 SPSS shall discuss in good faith with LICENSEE the availability, if any, of
maintenance and support services for any Deliverables proposed to be
provided under a Statement of Work. If agreed in a Statement of Work on a
case-by-case basis, SPSS shall provide Maintenance for the Deliverables
provided to LICENSEE under Statements of Work hereunder. The foregoing
shall not be construed to limit or modify in any way the obligation of SPSS
to provide Maintenance with respect to the SOFTWARE.
6.4 Either party may terminate a Statement of Work if the other party fails to
cure its material breach thereof within thirty (30) days after written
notice from the other party of such breach. In addition, LICENSEE may
terminate a Statement of Work at any time without cause with thirty (30)
days prior written notice to SPSS. Upon early termination of a Statement(s)
of Work by LICENSEE without cause, LICENSEE shall pay to SPSS all amounts
due to SPSS for work performed by SPSS through the date of termination.
Termination of a Statement(s) of Work shall not constitute a basis for
SPSS's termination of this Agreement under Section 5 hereof. Upon the
termination of this Agreement, all Statements of Work shall automatically
terminate.
6.5 All Deliverables shall be subject to the testing and acceptance procedures
of in the applicable Statement of Work (if any). Upon acceptance by
LICENSEE pursuant to the Statement of Work or, if the Statement of Work
does not contain acceptance testing procedures, upon delivery to LICENSEE,
Deliverables shall be considered to constitute "SOFTWARE" for all purposes
hereunder.
6.6 SPSS shall perform all Consulting Services in a timely, professional and
workmanlike manner in accordance with the relevant Statement(s) of Work and
the highest standards prevailing in the industry. All Deliverables provided
under the Statements of Work shall, for a period of one hundred and eighty
(180) days from their delivery to LICENSEE, operate substantially in
accordance with the specifications and descriptions set forth in the
Statement of Work and their documentation, and without material error or
interruption, provided that the Deliverables are operated substantially in
accordance with their documentation.
6.7 In the event that the Deliverables do not comply with the warranties set
forth herein, SPSS upon notification from LICENSEE will begin the process
of duplicating the error and, if it is an error in the Deliverable that
causes the deliverable to be in breach of the warranty set forth in Section
6.6 above, begin the process of correcting such error. SPSS shall correct
such non-compliance within the timeframes set forth in Section 5.2a above.
If SPSS fails to provide corrected Deliverables to LICENSEE within such
timeframes, LICENSEE may terminate the Statement of Work and return the
Deliverables to SPSS for a full refund of all amounts paid by LICENSEE
under the Statement of Work.
7. Warranties
7.1 SPSS hereby represents and warrants to LICENSEE that:
(a) SPSS has all right, title, interest and authority necessary in order to
grant the licenses and rights granted herein;
(b) The SOFTWARE as delivered to LICENSEE (including Deliverables) does
not, to SPSS's knowledge, infringe, and LICENSEE's use of the SOFTWARE in
accordance with this Agreement will not, to SPSS's knowledge, infringe, any
patent, copyright, trademark or other intellectual property right of any
third party, nor constitute a misappropriation of any trade secret; no
claim has been brought or threatened against SPSS or its Affiliates or
suppliers alleging any of the foregoing; and
(c) SPSS will ensure that the SOFTWARE, including any additional elements,
updates, enhancements, upgrades or other modifications delivered to
LICENSEE hereunder, does not contain any (i) program code or programming
instruction or set of instructions intentionally designed to disrupt,
disable, harm, interfere with or otherwise adversely affect computer
programs, data files or operations; or (ii) other code typically described
as a virus or by similar terms, including Trojan horse, worm or backdoor.
7.2 (a) SPSS represents and warrants to LICENSEE that the SOFTWARE will, for a
period of two hundred ten (210) days from the Effective Date, operate
substantially in accordance with the specifications and descriptions set
forth in SCHEDULE B attached hereto and its documentation (collectively,
the "Specifications"), and without material error or interruption, provided
that the SOFTWARE is operated substantially in accordance with its
documentation.
(b) In the event that the SOFTWARE does not comply with the warranties set
forth herein, SPSS upon notification from LICENSEE will begin the process
of duplicating the error and, if it is an error in the SOFTWARE that causes
the SOFTWARE to be in breach of the warranty set forth in 7.2a, begin the
process of correcting such error. SPSS shall correct such non-compliance
within the timeframes set forth in Section 5.2a above. If SPSS fails to
provide corrected SOFTWARE to LICENSEE within such timeframe, LICENSEE may
terminate this Agreement and return the SOFTWARE to SPSS for a full refund
of all amounts paid by LICENSEE hereunder.
7.3 SPSS warrants that all Maintenance services and other services provided
under this Agreement shall be provided in a timely, professional and
workmanlike manner in accordance with the highest standards prevailing in
the industry.
7.4 (a) EXCEPT FOR THE WARRANTIES PROVIDED IN THIS AGREEMENT, THERE ARE NO
WARRANTIES EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL
SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED.
(b) EXCEPT FOR (I) SPSS'S INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THIRD
PARTY CLAIMS UNDER SECTION 7.5 HEREOF, (II) A BREACH BY SPSS OF SECTION 8.6
HEREOF, OR (III) PROPERTY DAMAGE OR PHYSICAL INJURY OR DEATH, IN NO EVENT
SHALL EITHER PARTY BE RESPONSIBLE FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES
OR LOST PROFITS, EVEN IF SUCH PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE.
(c) EXCEPT FOR (I) SPSS'S INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THIRD
PARTY CLAIMS UNDER SECTION 7.5 HEREOF, (II) A BREACH BY SPSS OF SECTION 8.6
HEREOF, OR (III) PROPERTY DAMAGE OR PHYSICAL INJURY OR DEATH, NEITHER
PARTY'S LIABILITY ARISING OUT OF THIS AGREEMENT SHALL IN ANY EVENT EXCEED
THE AGGREGATE AMOUNT OF LICENSE AND OTHER FEES PAID OR PAYABLE HEREUNDER
PLUS $100,000.
7.5 (a) SPSS agrees to indemnify, defend, and hold harmless LICENSEE and its
officers, directors, employees, agents, Authorized Third Parties and
Affiliates (the "Indemnified Parties") from and against any and all third
party claims, demands, costs, actions, costs, damages, settlements and
liabilities (including all reasonable attorneys' fees and court costs) of
any kind whatsoever, arising directly or indirectly out of claims that any
use of the SOFTWARE or any Deliverables in accordance with this Agreement
infringe on the intellectual property rights of a third party or
constitutes a misappropriation of the trade secrets of a third party, or
has caused any other injury to any third party. LICENSEE shall provide SPSS
with prompt notice of any such claim or action. SPSS shall have sole
control over the defense or settlement of any such claim, provided that
LICENSEE may participate in the defense of any claim through its own
counsel, and at its own expense. SPSS shall not agree to any settlement of
any such claim that does not include a complete release of LICENSEE from
all liability with respect thereto or that imposes any liability,
obligation or restriction on LICENSEE with the prior written consent of
LICENSEE.
(b) SPSS shall have no obligation for any claim of infringement arising
from (i) the modification of the SOFTWARE by LICENSEE without SPSS prior
approval, where such infringement would not have arisen but for such
modification; or (ii) any combination of the SOFTWARE with products not
supplied by LICENSOR and not contemplated by the Specifications, where such
infringement would not have arisen but for such combination.
(c) In the event that any SOFTWARE is held in a suit or proceeding to
infringe any intellectual property rights of a third party (or constitute
the misappropriation of a trade secret of a third party) and the use of
such SOFTWARE is enjoined, or LICENSEE has an objective basis for believing
that the SOFTWARE is likely to be found to infringe or constitute a
misappropriation, or likely to be enjoined, then SPSS shall, at its
expense, either (i) secure for LICENSEE the right to continue using the
SOFTWARE, or (ii) replace or modify the SOFTWARE so that it becomes
non-infringing; provided, however, if (i) and (ii) are not reasonably
practicable,
SPSS shall refund to LICENSEE all amounts paid hereunder for the affected
SOFTWARE, provided, however, that such refund shall be subject to reduction
on a straight line depreciation basis over a period of five (5) years
starting as of the date that the most recent infringing version of the
SOFTWARE is provided to LICENSEE.
8. General Provisions
8.1 LICENSEE agrees that this Agreement may not be assigned and that SOFTWARE
may not be transferred or sublicensed without the prior written consent of
SPSS which consent shall not be unreasonably withheld, conditioned or
delayed; provided, however, that LICENSEE shall have the right to assign
any of its rights and obligations under this Agreement without the consent
or approval of SPSS (i) to an entity which acquires all or substantially
all of the assets of LICENSEE relating to the subject matter hereof, or
(ii) to any subsidiary or Affiliate or successor in a merger, acquisition,
restructuring or reorganization of LICENSEE, provided that such assignee
assumes in writing LICENSEE's obligations hereunder.
8.2 LICENSEE grants SPSS the right to engage an independent third party
consultant reasonably acceptable to LICENSEE to conduct, at SPSS's sole
expense, a reasonable audit during normal business hours upon no less than
thirty (30) days prior written notice to LICENSEE once per calendar year to
verify that LICENSEE is using the SOFTWARE pursuant to the provisions of
this Agreement. LICENSEE agrees to allow SPSS reasonable access to
LICENSEE's premises and to use commercially reasonable efforts to cooperate
in the conduct such an audit.
8.3 This agreement together with all SCHEDULE(s) attached hereto (the
"Agreement") supersedes all prior agreements, proposals, representations
and communications between the parties relating to the subject matter
herein. In the case of conflict between this Agreement and purchase orders
issued for the SOFTWARE, the terms of this Agreement shall prevail.
8.4 SPSS shall not be liable for delays or nonperformance of this Agreement to
the extent caused by fires, accidents or other force majeure events beyond
the control of SPSS; provided, however, that if SPSS fails to comply with
the terms and conditions of this Agreement for a period of thirty (30) days
or more as a result of one or more force majeure events, LICENSEE shall
have the right to terminate this Agreement upon written notice to SPSS.
8.5 SPSS shall have no right to use LICENSEE's name in marketing, advertising
and public relations material without LICENSEE's prior written consent, on
a case-by-case basis.
8.6 (a) Each party shall hold strictly confidential and shall not disclose to
any third party the terms and conditions of this Agreement. In addition,
SPSS understands that this Agreement and SPSS' licenses, services and other
activities hereunder shall involve access to confidential, proprietary or
trade secret information or materials of LICENSEE (or its affiliates,
licensors, suppliers, vendors, clients, customers or any other third party
to whom LICENSEE owes a duty of confidentiality), in whatever form,
tangible or intangible, whether disclosed or provided to SPSS before or
after the execution of this Agreement (collectively, "Proprietary
Information").
(b) SPSS agrees during the term of this Agreement and thereafter that it
(i) shall take all steps reasonably necessary to hold LICENSEE's
Proprietary Information in trust and confidence; (ii) shall use Proprietary
Information only for the benefit of LICENSEE (and not for the benefit of
SPSS or any third party), (iii) shall not use Proprietary Information in
any manner or for any purpose not expressly set forth in this Agreement;
(iv) shall reproduce such Proprietary Information only to the extent
reasonably required to fulfill SPSS's obligations hereunder; and (v) shall
not disclose, deliver, provide, disseminate or otherwise make available,
directly or indirectly, any Proprietary Information to any third party.
SPSS may disclose Proprietary Information only to SPSS's employees and
agents who have a need to know such Proprietary Information, and who are
each obligated by a written agreement to comply with confidentiality
provisions no less restrictive than those set forth in this Agreement. SPSS
shall take the same degree of care that it uses to protect its own
confidential and proprietary information of similar nature and importance
(but in no event less than reasonable care) to protect the confidentiality
and avoid the unauthorized use, disclosure, publication, or dissemination
of Proprietary Information.
(c) The foregoing obligations in Section 8.6(b) shall not apply to any
Proprietary Information to the extent SPSS can prove such Proprietary
Information (a) is or has become generally known other than by any act or
omission of SPSS; or (b) was rightfully known by SPSS prior to the time of
first disclosure to SPSS. In addition, SPSS may use or disclose Proprietary
Information to the extent SPSS is legally compelled to disclose such
Proprietary Information, provided that SPSS shall use reasonable efforts to
give advance notice of such compelled disclosure to LICENSEE, and shall
cooperate with LICENSEE in connection with any efforts to prevent or limit
the scope of such disclosure and/or use of the Proprietary Information.
8.7 If a part of this Agreement is held unenforceable or invalid or prohibited
under law, it shall be deleted from this Agreement and shall not affect the
enforceability of the other parts of this Agreement.
8.8 This Agreement shall be interpreted under the laws of the Commonwealth of
Massachusetts of the United States of America. With respect to claims
initiated by LICENSEE, both parties hereby irrevocably consent to the
non-exclusive jurisdiction of the courts of the Commonwealth of
Massachusetts. With respect to claims initiated by SPSS, both parties
hereby irrevocably consent to the non-exclusive jurisdiction of the courts
of the State of Illinois.
IN WITNESS WHEREOF, the parties, through their authorized representatives, have
executed this Agreement as of the date last written below ("Effective Date").
For Quaker Fabric Corporation of Fall River (LICENSEE) For SPSS Inc
Signature: Signature:
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Printed Name: Printed Name:
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Title: Title:
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Date: Date:
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SCHEDULES TO
SOFTWARE LICENSE AGREEMENT
The following Schedules are hereby incorporated into this Software License
Agreement:
SCHEDULE A SOFTWARE AND LICENSE FEES
SCHEDULE B SPECIFICATIONS
SCHEDULE C MAINTENANCE AND PERFORMANCE METRICS
SCHEDULE D SOURCE CODE ESCROW AGREEMENT
SCHEDULE E TRAINING
SCHEDULE A
SOFTWARE AND LICENSE FEES
SCHEDULE A
LICENSEE and SPSS agree that the use of the SOFTWARE products listed in this
Schedule A shall be subject to the terms and conditions of the Software License
Agreement attached or previously executed between the parties.
1. Definitions
For the purposes of this Schedule and the Software License Agreement, the
term listed below shall have the following meaning: 1.1 "AUTHORIZED END-USER"
shall mean any person who is affiliated with LICENSEE or its Affiliates or
Authorized Third Parties as (i) a full-time or part-time employee; or (ii), a
full-time or part-time faculty member; or (iii) a third party contractor while
working on LICENSEE'S business.
2. Additional License Grant Terms
2.1 Where appropriate the SOFTWARE is referred to as CLIENT SOFTWARE or SERVER
SOFTWARE. SOFTWARE covered by a Per-Seat License or a Concurrent User
License is referred to as CLIENT SOFTWARE. SOFTWARE covered by a Server
License is referred to as SERVER SOFTWARE. In addition to the license terms
set froth in Software License Agreement to which this Schedule A is
attached, the following terms apply to the specific types of licenses
described below:
2.1.1 Per-Seat License
With respect to each item of SOFTWARE designated in this Schedule A as
having a "Per-Seat License" (if any), the license is limited to use and
operation on as many specific client computers as indicated in the
Schedule. Each per-seat license is exclusively dedicated for the use of a
single AUTHORIZED END-USER on one specific client computer accessing the
SERVER SOFTWARE (to be licensed separately) on a server.
2.1.2 Concurrent User License
With respect to each item of SOFTWARE designated in this Schedule A as
having a "Concurrent User License", the license is limited to use and
operation on an unspecified number of computers located in any office of
the LICENSEE or any of its Affiliates or Authorized Third Parties (whether
or not in the United States) accessing the SERVER SOFTWARE (to be licensed
separately) on a server (as defined in Section 2.1.3 below), provided that
the total number of client computers which may access the server to use the
SERVER SOFTWARE at the same time is limited to the number of clients
specified in this Schedule A. Such limit of concurrent users may in no way
be circumvented through the use of third party interface or multiplexing
software or in any other manner whatsoever.
2.1.3 Server License
With respect to each item of SOFTWARE designated in this Schedule A as
having a "Server License", the license is limited to use and operation on a
single server with a single or multiple CPU or on one or more designated
logical partition within a server with a single or multiple CPU for the use
by AUTHORIZED END-USERS. The installation on further partitions within a
server, or on one or more different servers with similar processing
capability, shall not require the purchase of any additional licenses.
2.2 If LICENSEE is licensing the products "Analyzer" and "Essbase" or
"Warehouse Builder" or if LICENSEE is purchasing a Project License, the
following additional terms apply to such products only:
2.2.1 If LICENSEE is licensing both "Analyzer" and "Essbase", LICENSEE is
granted a free one (1) seat License to use "Warehouse Manager", the
SOFTWARE necessary to add databases for use in "Analyzer". The right to use
the free License for "Warehouse Manager" is strictly limited to the
addition of databases for use in "Analyzer" and to the use of the User
Setting function ("Analyzer Designer"). Except as otherwise set forth
herein, any use of "Warehouse Manager" beyond this restricted use needs a
separate, fully payable license.
2.2.2 If LICENSEE is licensing "Warehouse Builder", either the source or the
target server must be designated as the control server. The number of
AS/400 servers on which the Warehouse Builder software may be installed
shall be as set forth on the attached schedule, and shall be without
reference to the number of processors included in any machine.
2.3 SOFTWARE is installed on a computer or workstation when it is loaded into
temporary memory (i.e. RAM) or installed into permanent memory (e.g. hard
disk, CD-ROM, or other storage device) of that computer or workstation.
However installation of the CLIENT SOFTWARE on a network server for the
sole purpose of internal distribution within LICENSEE and/or its Affiliates
shall not constitute use for which a separate license is required, provided
LICENSEE has a separate license for each computer or workstation to which
the CLIENT SOFTWARE is distributed.
2.4 This Section shall only apply if LICENSEE is licensing the "Strategy"
SOFTWARE or IBM DB2/OLAP SOFTWARE. That SOFTWARE contains technology from
IBM Corporation called DAV4J (hereinafter "Program"). Program contains
contributions from IBM and many other sources (hereinafter "Contributors").
The terms of the Agreement to which this SCHEDULE is appended shall apply
to LICENSEE's use of Program, except for the following: (i) SPSS and the
Contributors
effectively disclaim all warranties and conditions, express and implied,
including warranties or conditions of title and non-infringement, and
implied warranties or conditions of merchantability and fitness for a
particular purpose; (ii) SPSS and the Contributors disclaim all liability
for damages, including direct, indirect, special, incidental, and
consequential damages, such as lost profits. To receive a copy of the
Program source code and a description of the changes that SPSS made to the
Program source code, LICENSEE should refer to the URL location on the SPSS
web site "Strategy" Support Web Site, indicated in the "Strategy" Support
Documentation. The foregoing shall not diminish SPSS's obligation to
provide Maintenance Services with respect to the full SOFTWARE package
provided to LICENSEE, including the Program.
Address: Coordinator:
Organization: Quaker Fabric Corporation Name: Mr. Robert B. Myers
Address: 941 Grinnell Street Title and Director of Information Technology
P.O.BOX 2139 email bmyers@quakerfabric.com
Fall River, MA 02721 address:
Invoice Address if different:
Shipping Address if different:
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License/ License Fees
Operating Service Unit List License (Excluding shipping
SOFTWARE System Type. Quantity Fee and taxes)
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Query/Report Writer Conc 10 $ 14,000.00
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Enterprise Reporting Server 1 $ 28,000.00
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Essbase/400 server Server 1 $ 25,000.00
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ShowCase Analyzer server 1-way 1 $ 15,000.00
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Essbase/400 users/seats Conc 5 $ 15,750.00
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ShowCase Analyzer users/seats Conc 5 $ 7,000.00
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Warehouse Builder DB2/400 Server 1 $ 17,500.00
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Warehouse Builder BPCS Source Server 2 $ 8,000.00
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Warehouse Manager 1-way 3 $ 13,500.00
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Financial Deployment Accelerator Server 1 N/C
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Sales Deployment Accelerator Server 1 N/C
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Warehouse Builder NT/Oracle Source Server Unlimited N/C
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Annual Support and Maintenance $ 31,750.00
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Server Licenses can run on
multiple CPUs at no additional
charge.
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TOTAL $175,500.00
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The following information is necessary to generate a password for the system:
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AS/400 Serial # Model Number & Feature Code OS Version
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Agreed by Agreed by
LICENSEE: SPSS Inc:
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Authorized Signature Authorized Signature
Printed Name: Printed Name:
Title: Date: Title: Date:
SCHEDULE B
SPECIFICATIONS
STRATEGY Overview
SPSS Solutions Group Product Overview
Warehouse Manager
Warehouse Manager helps day-to-day management of your data warehouse or
production database. By using this single, integrated solution, with an
interface similar to that of Microsoft'r' Explorer'TM', your system
administrators can manage and monitor warehouse security and access, data
simplification, resource allocation, and other aspects of your warehouse. The
warehouse manager product allows the administrator to grant or revoke authority
from library level, table level, column level and row level by individual users
or group of users.
Query
The Query component of SPSS Solutions Group STRATEGY allows your organization to
access data, whether it is contained in transactional, operational or ERP
systems or centralized in data marts or a data warehouse. Query lets your
company's end-users probe data without direct IT assistance. Query improves
productivity by allowing users to access both relational and multidimensional
databases and download information into familiar desktop applications, including
Microsoft'r' Excel, Lotus'r' 1-2-3 and Microsoft'r' Word. Use of this product
will allow different users who have the same security level that are querying
the same data to obtain consistent results.
Report Writer
Report Writer helps end-users create reports of their data analyses.
Drag-and-drop features, graphics and other elements make report design intuitive
for the beginner, while powerful query and calculation capabilities enable more
advanced users to design specialized reports.
With Report Writer, end-users can carry out scheduled or ad hoc data analysis.
And since Query is fully integrated into Report Writer, they receive unmatched
access to your underlying data. If you create a canned report in Report Writer,
different users, who have the same security level, can use Query to access the
same data and show the same results by using the canned report created in Report
Writer.
Enterprise Reporting
Allows your organization to save reports run by Query or other STRATEGY
front-end tools and refresh these reports either on a regular schedule or as
needed. You can distribute reports over the web. And end-users can even probe
data dynamically over the web.
Warehouse Builder
Warehouse Builder transforms and simplifies your online transaction processing
data into information for end-users. It enables your organization to create data
marts or a data warehouse and automatically populate relational tables or
multidimensional cubes. Warehouse Builder also provides for the replication of
operational data from one system to another. This tool is a main reason why you
can bring your enterprise wide data together in one centralized location - the
AS/400. Warehouse Builder can pull from data sources such as, other AS/400s,
Oracle, SQL Server, Lotus Notes and Domino, MS Access, and MS Excel
Essbase for Online Analytical Processing (OLAP)
With Essbase/400, your company gains the power to share and analyze current data
to support the planning and forecasting activities.
Industry-leading Essbase technologies deliver give your organization the ability
to perform not only historical data analysis but also budgeting and planning,
"what if" analyses.
Analyzer
Analyzer allows your company's end-users to access multidimensional and
relational data stores, analyze that information and even "drill through" to the
underlying detailed data. They can easily display information as charts,
spreadsheets, or custom reports. This
powerful viewer sorts, ranks, filters, calculates and graphs data for deeper
understanding at a glance. Analyzer allows users to store and manage these
views, making it possible to share information throughout the enterprise.
Analyzer for the Web
Brings the power of Analyzer to your company's intranet. Operating over common
Internet browsers, such as Microsoft'r' Internet Explorer or Netscape'r'
Navigator, Analyzer for the Web allows users to create, store and manage
graphical views of data, which can then be shared electronically throughout the
enterprise.
SCHEDULE C
MAINTENANCE AND PERFORMANCE METRICS
SPSS will make available to LICENSEE updates, maintenance and support services
as set forth below with respect to the SOFTWARE, and any release thereof
delivered by SPSS to LICENSEE hereunder.
I. UPDATES
Updates, error corrections and new releases of the Software shall be provided to
LICENSEE in electronic form, when and if they are made available by SPSS. If
SPSS cannot provide an update, error correction or new release via electronic
form, SPSS will send such upgrade in the format available.
II. SUPPORT as set forth below.
Introduction
This document describes the support and standards of support provided by
SPSS Inc to LICENSEE. SPSS Inc is committed to providing a high level of
support to ensure that LICENSEE will realize the complete value of their
investment in SPSS products.
This agreement is intended to guarantee that users receive an acceptable
level of response to their needs and to ensure common expectations of
quality and timeframes for support provided by the SPSS Support
organization. The Support organization's goal is:
o Timely and effective technical support of SPSS products to enable
our customers to realize the full value of their investment in
SPSS products.
This level of support will be provided throughout LICENSEE for all
supported hardware and software configurations.
Supported Technology
SPSS Inc will provide support to LICENSEE for those SPSS features and/or
products that LICENSEE has covered under a current maintenance contract.
SPSS will be unable to provide support for operating system releases not
supported by the manufacturer.
Customer Service
Service Access:
All requests for technical support should be directed to SPSS Inc,
Technical Support. SPSS Technical Support services are accessible via:
o Phone
o Email
Problem Priority:
All support requests will be assigned a tracking number by SPSS which will
be provided to the LICENSEE support requestor. At the time a problem is
reported, the requestor will be asked to provide an assessment of the
impact the problem is having on LICENSEE . The following designations will
be used to assign problem severity based on the information provided by
LICENSEE:
o Severity 1 - Critical problem. Application or significant module
unavailable or the results produced by application are erroneous
as result of error in the application. No acceptable workaround
available.
o Severity 2 - High Impact. Function limited or workaround
difficult to implement.
o Severity 3 - Low Impact. Cosmetic change such as screen wording
or a typographical error.
Hours of Operation:
SPSS Technical Support is available 9:00am to 5:00pm CST, Monday through
Friday except for nationally recognized holidays, President's Day,
Christmas Eve Day and the Friday after Thanksgiving.
Service Measures:
Problems:
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Severity Reporting Method Response
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1,2,3 Telephone 100% - 4 business hours
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1,2,3 Email 100% - 4 business hours
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Defects:
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Priority Estimated Correction Times*
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1 Bypass or fix within 24 hours
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2 Bypass or fix within 30 days
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3 Bypass or fix in next release
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* "Bypass or fix" means that substantial functionality has been restored to
the SOFTWARE with no material impact on LICENSEE's ability to use or access
the SOFTWARE.
For priority 1 errors, SPSS shall use best efforts to meet the estimated
correction times set forth above.
Problem Updates:
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Severity Frequency
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1 Every 4 hours and upon request by LICENSEE
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2 Daily (unless otherwise mutually agreed upon)
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3 Weekly (unless otherwise mutually agreed upon)
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SPSS will also make available to LICENSEE access to an online
knowledgebase. This online system can be accessed any time of the day or
week.
Patches:
Fixes to reported product problems will be made available to LICENSEE on
the SPSS Technical Support web site. The fixes will be available for
downloading and installation.
Quality:
All SPSS releases are tested by a Quality Assurance Test Team. Individual
emergency patches (for high severity problems) generally will not have the
same level of testing prior to being made available to LICENSEE. In these
cases, SPSS will work with LICENSEE to assist in making an informed
decision on installing the emergency patch.
Emergency Situations:
In the event of a severe problem with the SPSS software, LICENSEE will
contact SPSS support via one of the communication channels and inform SPSS
that this problem is considered to be severe. In addition, it is strongly
recommended that for serious problems, LICENSEE contact the Manager of
Technical Support and apprise the manager of the situation. The Manager of
Support will work closely with LICENSEE management to resolve the issue in
as expeditious a manner possible and minimize the impact of the problem on
LICENSEE's business operations.
Customer Responsibilities:
LICENSEE agrees to maintain their systems on a supported release of SPSS
software. In addition, they will not attempt to make modifications to the
existing code without prior approval from SPSS. Any modifications to the
software will not be supported without prior arrangement.
In some cases it may become necessary to remotely connect to LICENSEE
system(s) to collect diagnostic information. If such a circumstance arises,
SPSS Support will work with LICENSEE's management to arrange for such
connection. LICENSEE agrees to provide reasonable access to their system(s)
for such problem resolution. All information obtained by SPSS as a result
of access to LICENSEE's systems or otherwise through performance of
Maintenance Services shall constitute Proprietary Information of LICENSEE.
Problem Escalation
Escalation Procedure - In the event SPSS has responded to LICENSEE's
request but has been unable to provide either a temporary or permanent
resolution or a plan for so doing within a twenty four (24) hour timeframe
for a Severity Level 1 situation, Licensee should notify the SPSS's Support
Manager to inform him/her of the situation and the SPSS Support Manager and
LICENSEE shall meet via the phone to discuss the situation If after 48
hours the situation is still unresolved, the LICENSEE should notify the
Vice President of Global Support and inform him of the situation and meet
with him via the phone to discuss the situation The SPSS Support Manager,
and if necessary, Vice President of Global Support will remain involved in
any Severity 1 situations that get reported to them in accordance with this
paragraph.
SCHEDULE D
SOURCE CODE ESCROW AGREEMENT AND THIRD PARTY BENEFICIARY FORM
MASTER PREFERRED ESCROW AGREEMENT
Master Number ___________________
This agreement "Agreement" is effective _____________, 20___ among DSI
Technology Escrow Services, Inc. ("DSI"), ______________________________________
("Depositor") and any additional party signing the Acceptance Form attached to
this Agreement ("Preferred Beneficiary"), who collectively may be referred to in
this Agreement as the parties ("Parties").
A. Depositor and Preferred Beneficiary have entered or will enter into a license
agreement, development agreement, and/or other agreement regarding certain
proprietary technology of Depositor (referred to in this Agreement as "the
License Agreement").
B. Depositor desires to avoid disclosure of its proprietary technology except
under certain limited circumstances.
C. The availability of the proprietary technology of Depositor is critical to
Preferred Beneficiary in the conduct of its business and, therefore, Preferred
Beneficiary needs access to the proprietary technology under certain limited
circumstances.
D. Depositor and Preferred Beneficiary desire to establish an escrow with DSI to
provide for the retention, administration and controlled access of certain
proprietary technology materials of Depositor.
E. The parties desire this Agreement to be supplementary to the License
Agreement pursuant to 11 United States [Bankruptcy] Code, Section 365(n).
ARTICLE 1 -- DEPOSITS
1.1 Obligation to Make Deposit. Upon the signing of this Agreement by the
parties, including the signing of the Acceptance Form, and Exhibit D naming the
Deposit Account, Depositor shall deliver to DSI the proprietary technology and
other materials ("Deposit Materials") required to be deposited by the License
Agreement or, if the License Agreement does not identify the materials to be
deposited with DSI, then such materials will be identified on Exhibit A. If
Exhibit A is applicable, it is to be prepared and signed by Depositor and
Preferred Beneficiary. DSI shall have no obligation with respect to the
preparation, signing or delivery of Exhibit A.
1.2 Identification of Tangible Media. Prior to the delivery of the Deposit
Materials to DSI, Depositor shall conspicuously label for identification each
document, magnetic tape, disk, or other tangible media upon which the Deposit
Materials are written or stored. Additionally, Depositor shall complete Exhibit
B to this Agreement by listing each such tangible media by the item label
description, the type of media and the quantity. Exhibit B shall be signed by
Depositor and delivered to DSI with the Deposit Materials. Unless and until
Depositor makes the initial deposit with DSI, DSI shall have no obligation with
respect to this Agreement, except the obligation to notify the parties regarding
the status of the account as required in Section 2.2 below.
1.3. Escrow Account Name Identification. Subject to this Section 1, and at the
time Depositor makes the initial deposit with DSI in accordance with Section 1.2
above, Depositor shall complete and sign Exhibit D naming the initial account
upon which the Deposit Materials are written or stored. Any new deposits
referencing new account names made subsequent to the signing of this Agreement,
intended by the Depositor to be held in a separate account and maintained
separately from the initial account, but made a part of this Agreement, shall be
provided for by the Depositor on Exhibit E, and Exhibit E shall be signed by the
Depositor and DSI.
1.4 Acceptance of Deposit. When DSI receives the Deposit Materials, DSI will
conduct a deposit inspection. At completion of the deposit inspection, if DSI
determines that the labeling of the tangible media matches the item descriptions
and quantity on Exhibit B, DSI will date and sign Exhibit B and mail a copy
thereof to Depositor and Preferred Beneficiary. If DSI determines that the
labeling does not match the item descriptions or quantity on Exhibit B, DSI will
(a) note the discrepancies in writing on Exhibit B; (b) date and sign Exhibit B
with the exceptions noted; and (c) mail a copy of Exhibit B to Depositor and
Preferred Beneficiary. DSI's acceptance of the deposit occurs upon the signing
of Exhibit B by DSI. Delivery of the signed Exhibit B to Preferred
Beneficiary is Preferred Beneficiary's notice that the Deposit Materials have
been received and accepted by DSI. Other than DSI's inspection of the Deposit
Materials, DSI shall have no obligation to the accuracy, completeness,
functionality, performance or non-performance of the Deposit Materials.
1.5. Depositor's Representations. Depositor represents as follows:
a. Depositor lawfully possesses all of the Deposit Materials deposited
with DSI;
b. With respect to all of the Deposit Materials, Depositor has the right
and authority to grant to DSI and Preferred Beneficiary the rights as
provided in this Agreement;
c. As of the effective date of this Agreement and thereafter, the Deposit
Materials will not be the subject of a lien or encumbrances that will
prohibit, limit, or alter the rights and obligations of DSI under this
Agreement;
d. The Deposit Materials consist of the proprietary technology and other
materials identified either in the License Agreement or Exhibit A, as
the case may be; and
e. The Deposit Materials are readable and useable in their current form
or, if any portion of the Deposit Materials is encrypted, the
decryption tools and decryption keys have also been deposited.
1.6 Verification. Upon receipt of a written request from Preferred Beneficiary,
DSI and Preferred Beneficiary may enter into a separate proposal agreement
pursuant to which DSI will agree, upon certain terms and conditions, to inspect
the Deposit Materials for the purpose of verifying its accuracy, completeness,
sufficiency and quality ("Verification Proposal Agreement"). Depositor shall
reasonably cooperate with DSI by providing its facilities, computer software
systems, and technical and support personnel for verification whenever
reasonably necessary. If a verification is elected after the Deposit Materials
have been delivered to DSI, then only DSI, or at DSI's election, an independent
contractor or company selected by DSI, may perform the verification.
1.7 Deposit Updates. Unless otherwise provided by the License Agreement,
Depositor shall update the Deposit Materials within sixty (60) days of each
release of a new version of the product, which is subject to the License
Agreement. Such updates will be added to the existing deposit. All deposit
updates shall be listed on a new Exhibit B and the new Exhibit B shall be signed
by Depositor. Each Exhibit B will be held and maintained separately within the
escrow account. An independent record will be created which will document the
activity for each Exhibit B. The processing of all deposit updates shall be in
accordance with Sections 1.2 through 1.6 above. All references in this Agreement
to the Deposit Materials shall include the initial Deposit Materials and any
updates.
1.8 Removal of Deposit Materials. The Deposit Materials may be removed and/or
exchanged only on written instructions signed by Depositor and Preferred
Beneficiary, or as otherwise provided in this Agreement.
ARTICLE 2 -- CONFIDENTIALITY AND RECORD KEEPING
2.1 Confidentiality. DSI shall have the obligation to reasonably protect the
confidentiality of the Deposit Materials. Except as provided in this Agreement
or any subsequent agreement between the Parties, DSI shall not disclose,
transfer, make available, or use the Deposit Materials. DSI shall not disclose
the terms of this Agreement to any third party. If DSI receives a subpoena or
any other order from a court or other judicial tribunal pertaining to the
disclosure or release of the Deposit Materials, DSI will immediately notify the
parties to this Agreement unless prohibited by law. It shall be the
responsibility of Depositor and/or Preferred Beneficiary to challenge any such
order; provided, however, that DSI does not waive its rights to present its
position with respect to any such order. DSI will not be required to disobey any
order from a court or other judicial tribunal including, but not limited to,
notices delivered pursuant to 7.6 below.
2.2 Status Reports. DSI will issue to Depositor and Preferred Beneficiary a
report profiling the account history semi-annually.
ARTICLE 3 -- RIGHT TO MAKE COPIES
3.1 Right to Make Copies. DSI shall have the right to make copies of the Deposit
Materials as reasonably necessary to perform this Agreement. DSI shall copy all
copyright, nondisclosure, and other proprietary notices and titles contained on
the Deposit Materials onto any copies made by DSI. With all Deposit Materials
submitted to DSI, Depositor shall provide any and all instructions as may be
necessary to duplicate the Deposit Materials including but not limited to the
hardware and/or software needed. Any copying expenses incurred by DSI as a
result of a request to copy will be borne by the party requesting the copies.
Alternatively, DSI may notify Depositor requiring its reasonable cooperation in
promptly copying the Deposit Materials in order for DSI to perform this
Agreement.
ARTICLE 4 -- RELEASE OF DEPOSIT
4.1 Release Conditions. As used in this Agreement, "Release Condition" shall
mean the existence with correction of an of the following conditions for a
period of thirty (30) days:
a. Entry of an order as to Depositor under Title 11 of the United States
Code
b. The making by Depositor of a general assignment for the benefit of
creditors
c. The appointment of a general receiver or trustee in bankruptcy of
Depositor's business
d. Action by Depositor under any state insolvency or similar law for the
purpose of Depositor's bankruptcy, reorganization or liquidation.
4.2 Filing For Release. If Preferred Beneficiary believes in good faith that a
Release Condition has occurred, Preferred Beneficiary may provide to DSI written
notice of the occurrence of the Release Condition and a request for the release
of the Deposit Materials. Within five (5) business days of receipt of a written
notice, DSI shall provide a copy of the notice to Depositor. DSI will promptly
notify the Parties unless DSI acknowledges or discovers independently, or
through the Parties, its need for additional documentation or information in
order to comply with this section. Such need for additional documentation or
information may extend the time period for DSI's performance under this section.
4.3 Contrary Instructions. From the date DSI mails the notice requesting release
of the Deposit Materials, Depositor shall have ten (10) business days to deliver
to DSI contrary instructions ("Contrary Instructions"). Contrary Instructions
shall mean the written representation by Depositor that a Release Condition has
not occurred or has been cured. Upon receipt of Contrary Instructions, DSI shall
send a copy to Preferred Beneficiary by commercial express mail. Additionally,
DSI shall notify both Depositor and Preferred Beneficiary that there is a
dispute to be resolved pursuant to the Section 7.4. Subject to Section 5.2 of
this Agreement, DSI will continue to store the Deposit Materials without release
pending (a) joint instructions from Depositor and Preferred Beneficiary; (b)
dispute resolution pursuant to Section 7.4; or (c) order from a court of
competent jurisdiction.
4.4 Release of Deposit. If DSI does not receive Contrary Instructions from the
Depositor, DSI is authorized to release the Deposit Materials to the Preferred
Beneficiary or, if more than one beneficiary is registered to the deposit, to
release a copy of the Deposit Materials to the Preferred Beneficiary. However,
DSI is entitled to receive any fees due DSI before making the release. Any
copying expenses will be chargeable to Preferred Beneficiary. Upon any such
release, the escrow arrangement will terminate as it relates to the Depositor
and Preferred Beneficiary involved in the release.
4.5 Right to Use Following Release. Unless otherwise provided in the License
Agreement, upon release of the Deposit Materials in accordance with this Article
4, Preferred Beneficiary shall have the right to use the Deposit Materials for
the sole purpose of continuing the benefits afforded to Preferred Beneficiary by
the License Agreement. Preferred Beneficiary shall be obligated to maintain the
confidentiality of the released Deposit Materials.
ARTICLE 5 -- TERM AND TERMINATION
5.1 Term of Agreement. The initial term of this Agreement is for a period of one
(1) year. Thereafter, this Agreement shall automatically renew from year-to-year
unless (a) Depositor and Preferred Beneficiary jointly instruct DSI in writing
that the Agreement is terminated; (b) DSI instructs Depositor and Preferred
Beneficiary in writing ninety (90) days after its renewal date that the
Agreement is terminated for nonpayment in accordance with Section 5.2; or (c)
DSI reserves the right to terminate this Agreement, for any reason, other than
nonpayment, by providing Depositor and Preferred Beneficiary sixty (60) days
written notice of its intent to terminate this Agreement. If the Deposit
Materials are subject to another escrow agreement with DSI, DSI reserves the
right, after the initial one year term, to adjust the anniversary date of the
Agreement to match the then prevailing anniversary date of such other escrow
arrangements.
5.2 Termination for Nonpayment. In the event of the nonpayment of fees owed to
DSI, DSI shall provide written notice of delinquency to the parties to this
Agreement affected by such delinquency. Any such party shall have the right to
make the payment to DSI to cure the default. If the past due payment is not
received in full by DSI within one (1) month of the date of such notice,
then at any time thereafter DSI shall have the right to terminate this Agreement
to the extent it relates to the delinquent party by sending written notice of
termination to such affected parties. DSI shall have no obligation to take any
action under this Agreement so long as any payment due to DSI remains unpaid.
5.3 Disposition of Deposit Materials Upon Termination. Subject to the foregoing
termination provisions, and upon termination of this Agreement, DSI shall
destroy, return, or otherwise deliver the Deposit Materials in accordance with
Depositor's instructions. If there are no instructions, DSI may, at its sole
discretion, destroy the Deposit Materials or return them to Depositor. DSI shall
have no obligation to destroy or return the Deposit Materials if the Deposit
Materials are subject to another escrow agreement with DSI or have been released
to the Preferred Beneficiary in accordance with Section 4.4.
5.4 Survival of Terms Following Termination. Upon termination of this Agreement,
the following provisions of this Agreement shall survive:
a. Depositor's Representations (Section 1.5);
b. The obligations of confidentiality with respect to the Deposit
Materials;
c. The obligation to pay DSI any fees and expenses due;
d. The provisions of Article 7; and
e. Any provisions in this Agreement which specifically state they survive
the termination of this Agreement.
ARTICLE 6 -- DSI'S FEES
6.1 Fee Schedule. DSI is entitled to be paid its standard fees and expenses
applicable to the services provided. DSI shall notify the party responsible for
payment of DSI's fees at least sixty (60) days prior to any increase in fees.
For any service not listed on DSI's standard fee schedule, DSI will provide a
quote prior to rendering the service, if requested.
6.2 Payment Terms. DSI shall not be required to perform any service, including
release of any Deposit Materials under Article 4, unless the payment for such
service and any outstanding balances owed to DSI are paid in full. Fees are due
upon receipt of a signed contract or receipt of the Deposit Materials whichever
is earliest. If invoiced fees are not paid, DSI may terminate this Agreement in
accordance with Section 5.2.
ARTICLE 7 -- LIABILITY AND DISPUTES
7.1 Right to Rely on Instructions. DSI may act in reliance upon any instruction,
instrument, or signature reasonably believed by DSI to be genuine. DSI may
assume that any employee of a party to this Agreement who gives any written
notice, request, or instruction has the authority to do so. DSI will not be
required to inquire into the truth or evaluate the merit of any statement or
representation contained in any notice or document. DSI shall not be responsible
for failure to act as a result of causes beyond the reasonable control of DSI.
7.2 Indemnification. Depositor and Preferred Beneficiary each agree to
indemnify, defend and hold harmless DSI from any and all claims, actions,
damages, arbitration fees and expenses, costs, attorney's fees and other
liabilities ("Liabilities") incurred by DSI relating in any way to this escrow
arrangement except where it is adjudged that DSI acted with gross negligence or
willful misconduct.
7.3 Limitation of Liability. In no event will DSI be liable for any incidental,
indirect, special, exemplary, punitive or consequential damages, including, but
not limited to, damages (including loss of data, revenue, and/or profits) costs
or expenses (including legal fees and expenses), whether foreseeable or
unforeseeable, that may arise out of or in connection with this Agreement; and
in no event shall the collective liability of DSI exceed ten times the fees paid
under this Agreement. The foregoing limitation of liability does not apply with
respect to any acts of gross negligence, personal injury claims, property damage
claims (excluding the Deposit), or intellectual property infringement
("Exclusions"). With the exception of the Exclusions, DSI shall in no event be
liable for any incidental, punitive, special, indirect or consequential damages.
7.4 Dispute Resolution. Any dispute relating to or arising from this Agreement
shall be submitted to, and settled by arbitration by a single arbitrator chosen
by the Chicago Regional Office of the American Arbitration Association in
accordance with the Commercial Rules of the American Arbitration Association.
The arbitrator shall apply Illinois law. Unless otherwise agreed by Depositor
and Preferred Beneficiary, arbitration will take place in Chicago, Illinois,
U.S.A. Any court having jurisdiction over the matter may enter
judgment on the award of the arbitrator. Service of a petition to confirm the
arbitration award may be made by First Class mail or by commercial express mail,
to the attorney for the party or, if unrepresented, to the party at the last
known business address. If, however, Depositor and/or Preferred Beneficiary
refuses to submit to arbitration, the matter shall not be submitted to
arbitration and DSI may submit the matter to any court of competent
jurisdiction. Any costs of arbitration incurred by DSI, including reasonable
attorney's fees and costs, shall be divided equally and paid by Depositor and
Preferred Beneficiary.
7.5 Controlling Law. This Agreement is to be governed and construed in
accordance with the laws of the State of Illinois, without regard to its
conflict of law provisions.
7.6 Notice of Requested Order. If any party intends to obtain an order from the
arbitrator or any court of competent jurisdiction, which may direct DSI to take,
or refrain from taking any action, that party shall:
a. Give DSI at least five (5) business days prior notice of the hearing;
b. Include in any such order that, as a precondition to DSI's obligation,
DSI be paid in full for any past due fees and be paid for the
reasonable value of the services to be rendered pursuant to such
order; and
c. Ensure that DSI not be required to deliver the original (as opposed to
a copy) of the Deposit Materials if DSI may need to retain the
original in its possession to fulfill any of its other escrow duties.
ARTICLE 8 -- GENERAL PROVISIONS
8.1 Entire Agreement. This Agreement, which includes the Acceptance Form and
Exhibits A, B, C, D and E described herein, embodies the entire understanding
among all of the parties with respect to its subject matter and supersedes all
previous communications, representations or understandings, either oral or
written. DSI is not a party to the License Agreement between Depositor and
Preferred Beneficiary and has no knowledge of any of the terms or provisions of
any such License Agreement. DSI's only obligations to Depositor or Preferred
Beneficiary are as set forth in this Agreement. No amendment or modification of
this Agreement shall be valid or binding unless signed by all the parties
hereto, except that Exhibit A need not be signed by DSI, Exhibit B need not be
signed by Preferred Beneficiary, Exhibit C need not be signed by any party,
Exhibit D need not be signed by Preferred Beneficiary or DSI and the Acceptance
Form need only be signed by the parties identified therein.
8.2 Notices. All notices, invoices, payments, deposits and other documents and
communications shall be given to the parties at the addresses specified in the
attached Exhibit C and Acceptance Form. It shall be the responsibility of the
parties to notify each other as provided in this Section in the event of a
change of address. The parties shall have the right to rely on the last known
address of the other parties. Any correctly addressed notice or last known
address of the other parties that is relied on herein that is refused,
unclaimed, or undeliverable because of an act or omission of the party to be
notified as provided herein shall be deemed effective as of the first date that
said notice was refused, unclaimed, or deemed undeliverable by the postal
authorities by mail, through messenger or commercial express delivery services.
Unless otherwise provided in this Agreement, all documents and communications
may be delivered by First Class mail.
8.3 Severability. In the event any provision of this Agreement is found to be
invalid, voidable or unenforceable, the parties agree that unless it materially
affects the entire intent and purpose of this Agreement, such invalidity,
voidability or unenforceability shall affect neither the validity of this
Agreement nor the remaining provisions herein, and the provision in question
shall be deemed to be replaced with a valid and enforceable provision most
closely reflecting the intent and purpose of the original provision.
8.4 Successors and Assigns. This Agreement shall be binding upon and shall inure
to the benefit of the successors and assigns of the parties. However, DSI shall
have no obligation in performing this Agreement to recognize any successor or
assign of Depositor or Preferred Beneficiary unless DSI receives clear,
authoritative and conclusive written evidence of the change of parties.
8.5 Waiver. Any term of this Agreement may be waived by the party entitled to
the benefits thereof, provided that any such waiver must be in writing and
signed by the party against whom the enforcement of the waiver is sought. No
waiver of any condition, or breach of any provision of this Agreement, in any
one or more instances, shall be deemed to be a further or continuing waiver of
such condition or breach. Delay or failure to exercise any right or remedy shall
not be deemed the waiver of that right or remedy.
8.6 Regulations. Depositor and Preferred Beneficiary are responsible for and
warrant compliance with all applicable laws, rules and regulations, including
but not limited to customs laws, import, export, and re-export laws and
government regulations of any country from or to which the Deposit Materials may
be delivered in accordance with the provisions of this Agreement.
8.7 Attorney's Fees. In any litigation or other proceeding by which one party
either seeks to enforce its rights under this Agreement (whether in contract,
tort, or both) or seeks declaration of any rights or obligations under this
Agreement, the prevailing party who has proven in court by court decree,
judgment or arbitrator's decision that the other party has materially breached
its representation and/or warranty under this Agreement shall be awarded
reasonable attorneys' fees, together with any costs and expenses, to resolve the
dispute and to enforce final judgement.
8.8 No Third Party Rights. This Agreement is made solely for the benefit of the
Parties to this Agreement and their respective permitted successors and assigns,
and no other person or entity shall have or acquire any right by virtue of this
Agreement unless otherwise agreed to by all the parties hereto.
8.9 Authority to Sign. Each of the Parties herein represents and warrants that
the execution, delivery, and performance of this Agreement has been duly
authorized and signed by a person who meets statutory or other binding approval
to sign on behalf of its business organization as named in this Agreement.
8.10 Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument.
DSI Technology Escrow Services, Inc.
- ----------------------------------------
Depositor
By: By:
------------------------------------ ---------------------------------
Name: Name:
---------------------------------- -------------------------------
Title: Title:
--------------------------------- ------------------------------
Date: Date:
---------------------------------- -------------------------------
EXHIBIT A
MATERIALS TO BE DEPOSITED
Account Number ______________________
Depositor represents to Preferred Beneficiary that Deposit Materials delivered
to DSI shall consist of the following:
- --------------------------------------- --------------------------------------
Depositor Preferred Beneficiary
By: By:
----------------------------------- ----------------------------------
Name: Name:
--------------------------------- --------------------------------
Title: Title:
-------------------------------- -------------------------------
Date: Date:
--------------------------------- --------------------------------
EXHIBIT B
DESCRIPTION OF DEPOSIT MATERIALS
Depositor Company Name _________________________________________________________
Account Number _________________________________________________________________
Product Name _________________________________ Version _________________________
(Product Name will appear as Exhibit B Name on Account History report)
DEPOSIT MATERIAL DESCRIPTION:
Quantity Media Type & Size Label Description of Each Separate Item
_________ Disk 3.5" or ____
_________ DAT tape ____mm
_________ CD-ROM
_________ Data cartridge tape ____
_________ TK 70 or ____ tape
_________ Magnetic tape ____
_________ Documentation
_________ Other __________________
PRODUCT DESCRIPTION:
Environment ____________________________________________________________________
DEPOSIT MATERIAL INFORMATION:
Is the media or are any of the files encrypted? Yes / No If yes, please include
any passwords and the decryption tools.
Encryption tool name _____________________ Version _____________________________
Hardware required ______________________________________________________________
Software required ______________________________________________________________
Other required information _____________________________________________________
I certify for Depositor that the DSI has inspected and accepted
above described Deposit Materials the above materials
have been transmitted to DSI: (any exceptions are noted above):
Signature Signature
--------------------------- -----------------------------
Print Name Print Name
-------------------------- ----------------------------
Date Date Accepted
-------------------------------- -------------------------
Exhibit B#
----------------------------
EXHIBIT C
DESIGNATED CONTACT
Master Number ______________________
Notices, deposit material returns and Invoices to Depositor should be
communications to Depositor should addressed to:
be addressed to:
Company Name: _________________________ _____________________________________
Address: ______________________________ _____________________________________
______________________________ _____________________________________
______________________________ _____________________________________
Designated Contact: ___________________ Contact: ____________________________
Telephone: ____________________________ _____________________________________
Facsimile: ____________________________ P.O.#, if required: _________________
E-mail: _______________________________
Verification Contact: _________________
Telephone/E-mail: _____________________
_______________________________________
Requests to change the designated contact should be given in writing by the
designated contact or an authorized employee.
DSI has two Operations Centers to All invoice fee remittances to DSI
service you. Agreements, Deposit should be addressed to:
Materials and notices to DSI should be
addressed to: (select location)
Attn: Client Services DSI Technology Escrow Services, Inc.
9265 Sky Park Court, Suite 202 PO Box 45156
San Diego, CA 92123 San Francisco, CA 94145-0156
Telephone: (858) 499-1600
Facsimile: (858) 694-1919
E-mail: clientservices@dsiescrow.com
or
Date: ___________________________
Attn: Client Services
2100 Norcross Parkway, Suite 150
Norcross, GA 30071
Telephone: 770-239-9200
Facsimile: 770-239-9201
E-mail: clientservices@dsiescrow.com
EXHIBIT D
NAME OF INITIAL ACCOUNT
Account Number ______________________________________
_______________________________ ("Depositor") has entered into a Master
Preferred Escrow Agreement with DSI Technology Escrow Services, Inc. ("DSI").
Pursuant to that Agreement, Depositor may deposit certain Deposit Materials with
DSI.
The initial account will be referenced by the following name:
______________________________________________________________.
- ---------------------------------------
Depositor
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Date:
---------------------------------
EXHIBIT E
ADDITIONAL ESCROW ACCOUNT
TO MASTER PREFERRED ESCROW AGREEMENT
Master Number _________________________
New Account Number ______________________
_______________________________ ("Depositor") has entered into a Master
Preferred Escrow Agreement with DSI Technology Escrow Services, Inc. ("DSI").
Pursuant to that Agreement, Depositor may deposit certain Deposit Materials with
DSI.
Depositor desires that new Deposit Materials be held in a separate account and
be maintained separately from the initial account. By execution of this Exhibit
E, DSI will establish a separate account for the new Deposit Materials. The new
account will be referenced by the following name: _____________________________.
Depositor hereby agrees that all terms and conditions of the existing Master
Preferred Escrow Agreement previously entered into by Depositor and DSI will
govern this account. The termination or expiration of any other account of
Depositor will not affect this account.
DSI Technology Escrow Services, Inc.
- ----------------------------------------
Depositor
By: By:
----------------------------------- ---------------------------------
Name: Name:
--------------------------------- -------------------------------
Title: Title:
-------------------------------- ------------------------------
Date: Date:
--------------------------------- -------------------------------
PREFERRED BENEFICIARY
ACCEPTANCE FORM
Account Number ______________________
Depositor, Preferred Beneficiary and DSI Technology Escrow Services, Inc.
("DSI"), hereby acknowledge that ___________________________ is the Preferred
Beneficiary referred to in the Master Preferred Escrow Agreement effective
___________, 20__ with DSI as the escrow agent and ___________________ as the
Depositor. Preferred Beneficiary hereby agrees to be bound by all provisions of
such Agreement.
Depositor hereby enrolls Preferred Beneficiary to the following account(s):
Account Name Account Number
_______________________________________ _____________________________________
_______________________________________ _____________________________________
_______________________________________ _____________________________________
Notices and communications to Preferred
Beneficiary should be addressed to: Invoices should be addressed to:
Company Name: _________________________ _____________________________________
Address: ______________________________ _____________________________________
______________________________ _____________________________________
______________________________ _____________________________________
Designated Contact: ___________________ Contact: ____________________________
Telephone: ____________________________ _____________________________________
Facsimile:_____________________________ P.O.#, if required:__________________
E-mail: _____________________________
- --------------------------------------- -------------------------------------
Preferred Beneficiary Depositor
By: By:
----------------------------------- ---------------------------------
Name: Name:
--------------------------------- -------------------------------
Title: Title:
-------------------------------- ------------------------------
Date: Date:
--------------------------------- -------------------------------
DSI Technology Escrow Services, Inc.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Date:
---------------------------------
PREFERRED BENEFICIARY ACCEPTANCE FORM
Account Number ________________
Depositor, Preferred Beneficiary and DSI Technology Escrow Services, Inc.
("DSI"), hereby acknowledge that Quaker Fabrics is the Preferred Beneficiary
referred to in the Master Preferred Escrow Agreement ("Agreement") effective
December 20, 2002 with DSI as the escrow agent and SPSS Inc. as the Depositor.
Preferred Beneficiary hereby agrees to be bound by all provisions of such
Agreement.
By signing below, the parties agree that the release conditions set forth in the
Master Preferred Escrow Agreement shall be replaced with the following
conditions:
(i) SPSS Inc.'s material breach of its maintenance or support obligations, which
breach is not cured within thirty (30) days following notification thereof by
Quaker Fabrics ; (ii) the termination of the License Agreement entered into by
SPSS Inc. and Quaker Fabrics, dated December 31, 2002, (hereinafter "Licensed
Agreement"), which a copy has been provided to DSI Technology Escrow Services,
Inc. pursuant to Section 5.2(b) of the License Agreement, (iii) SPSS Inc.'s
failure to continue to do business in the ordinary course, (iv) SPSS Inc.
becomes or is declared insolvent or bankrupt, is the subject of any proceedings
relating to its liquidation, insolvency or for the appointment of a receiver or
similar officer for it, makes an assignment for the benefit of all or
substantially all of its creditors or enters into an agreement for the
composition, extension or readjustment of all or substantially all of its
obligations, or (v) SPSS Inc. fails to provide an update of the software
licensed under the License Agreement with a new version of the IBM OS400
operating system within one year following IBM's general release of such new
version (collectively, "Release Conditions").
Notices and communications to Invoices should be addressed to:
Preferred Beneficiary should be
addressed to:
Company Name:
Address:
Designated Contact: Contact:
Telephone: Telephone:
Facsimile: P.O.# if required:
SPSS Inc. Quaker Fabrics
Depositor Preferred Beneficiary
By: By:
----------------------------------- ---------------------------------
Name: Name:
--------------------------------- -------------------------------
Title: Title:
-------------------------------- ------------------------------
Date: Date:
--------------------------------- -------------------------------
DSI Technology Escrow Services, Inc.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Date:
---------------------------------
SCHEDULE E
TRAINING
Training Courses
Here is a listing of SPSS Solutions Group training courses offered in North
America. Each course will have a detailed course description, the dates and
locations offered, and the cost for participating. The courses are divided
into three categories End User, Business Analyst and IT Professional.
End User Training
ShowCase'r' Analyzer'TM' Training- 1 day $500.00
This class provides end user training on Analyzer, a component of the
STRATEGY suite of business intelligence products. Training will emphasize
the use of Analyzer functions for performing the following tasks:
o Accessing data in a multidimensional database using the Analyzer Windows
application
o Creating ad-hoc reports to conduct trend, financial, sales, and "what if"
analyses
o Creating reports that include pivoting, traffic-lighting, sorting, ranking,
filtering, and calculations
o Designing customized forms and pinboards for viewing data
o Accessing data in a multidimensional database from a Web browser
o Accessing relational data in special structures called data models and
lookups
ShowCase'r''TM' Query Training- 2 days $1000.00
This class provides comprehensive end user training for Query, a component
of the STRATEGY suite of business intelligence products. The class begins
with learning basic query building skills, and ends with publishing queries
as reports. Learning experiences include creating joins, adding variables
and prompts, and creating new columns and conditions with SQL functions.
Query can use certain Microsoft Windows'r' applications as alternate data
viewers and provides add-in features for Microsoft'r' Excel'TM' and Lotus
1-2-3'r' spreadsheets. These add-in features can add additional
functionality to your existing spreadsheet applications. Sharing and
publishing queries and reports through a client/server environment using
STRATEGY's Enterprise Reporting is also introduced.
ShowCase'r''TM' Advanced Query Training- 2 days $1000.00
This class begins with defining expressions and building complex conditions
using SQL. Extensive time will be spent using the Query add-ins with
Microsoft Excel. The student will learn how to work with Structured Query
Language (SQL) to create Subselects and Unions. The use of dates and the
data storage of dates are discussed, as well as porting data from multiple
data sources, and the use of the SQL functions in a complex expression.
Available resources and error handling will be discussed. Sharing and
publishing of queries using the STRATEGY Enterprise Reporting feature are
introduced. The class presents information from an advanced end-user
perspective through presentation and hands-on learning experiences.
End User Training (cont.)
ShowCase'r''TM' Report Writer Training- 1 day $500.00
This class provides comprehensive end user training for Report Writer'TM'.
Report Writer is a data presentation tool that utilizes Query for data
retrieval. This class emphasizes using Report Writer functions and will not
cover learning the basic query building skills. Instead, this Report Writer
class will integrate the user-friendly ShowCase Query interface and
incorporate GUI report writing capabilities for formatting and analysis.
This is accomplished with the use of columnar reports, crosstab reports,
form reports, label reports, charting and graphics to enhance the look of a
query. Report Writer features are also emphasized through creating complex
derived fields with macros.
Business Analyst Training
Microsoft'r' Excel'TM' for Essbase'r' Training- 1 day $600.00
This class provides comprehensive training for business analysts and end
users. The processes of accessing and analyzing data maintained in Essbase
multidimensional databases using Microsoft Excel are emphasized. The
following functionality of Essbase Microsoft Excel Add-ins is presented:
basic data access using ad hoc reporting, advanced data retrieval, and
formal reports and charts. Basic data access techniques introduce the
student to common Essbase terminology, logging on to the Essbase server,
basic data retrieval methods, and configuring add-in environment options.
Users will be able to create quick, customized reports that can be used for
analysis and reporting. Advanced data access focuses on customizing
specific data selection and filtering techniques by using member selection
options and the database query functions. Finally, students will learn how
to create more formal or permanent reports, which include spreadsheet
formulas and charts based on Essbase data. The class addresses topics
through lecture and provides hands-on exercises to reinforce the learning
points.
IT Professional Training
ShowCase'r''TM' Enterprise Reporting Training- 1 day $500.00
This course covers the installation and configuration of ShowCase
Enterprise Reporting'TM' from the ground up. Topics include server setup,
client needs, the configuration of enterprise servers, managing security,
and troubleshooting. End-user functionality is also emphasized. The class
addresses topics through lecture and provides hands-on exercises to
reinforce the learning points.
IT Professional Training (cont.)
ShowCase'r''TM' Warehouse Manager Training- 1 day $500.00
This class provides comprehensive technical training on the Warehouse
Manager'TM' product and on the Data Views function in Query'TM'.
Warehouse Manager training emphasizes the use of Warehouse Manager
functions for performing the following tasks:
o Managing server options and settings required for STRATEGY functions
o Creating and managing iSeries (AS/400) user profiles
o Allocating and managing iSeries resources for users of Query and Report
Writer'TM'
o Setting security values for controlling access to iSeries objects and
STRATEGY applications
o Managing licenses for STRATEGY products
o Creating alias names for iSeries objects
o Running pre-built STRATEGY reports and auditing STRATEGY usage
The Data Views training focuses on using Query to create SQL views on the
iSeries.
Lab exercises are included to reinforce the learning experience
ShowCase'r''TM' Warehouse Builder Training- 1 day $500.00
Warehouse Builder allows IT professionals to move operational data from
iSeries (AS/400) transaction databases to an iSeries data warehouse server.
While Warehouse Builder may be used for simple data replication, it also
may be used to cleanse and transform data, summarize data, and track
transaction history information at transfer time. Additionally, Warehouse
Builder may be used to automatically load and calculate Essbase for iSeries
or other multidimensional databases. Warehouse Builder integrates STRATEGY
Query's graphical user interface for selection of tables, rows, and columns
to transfer. It enables users to build expressions, to create aggregated
files, to create indexes on the target system, to define SQL statements for
execution on the source or target system either before or after a transfer,
to append information to existing target tables, to add timestamps to rows
moved during a distribution, and to call other user programs. Users define
how and when to move data by combining transfers into distribution sets,
scheduling the distribution sets to execute by time or event, and defining
the order of distributions within a set.
Developed by product specialists and professional instructors, this class
provides comprehensive, technical training for IT professionals using
Warehouse Builder. The creation of complex source and target distribution
definitions and the creation and execution of distribution sets are
emphasized. Lab exercises are included to reinforce the learning points.
Also included is information about distribution performance issues, which
facilitates the building of "resource effective" distributions.
IT Professional Training (cont.)
ShowCase'r' Introduction to Essbase'r' Training- 3 days $1,800.00
The basic class provides comprehensive, technical training for IT
professionals. The processes of building, maintaining, and managing
multidimensional databases are emphasized. The following functionality of
Essbase iSeries is presented: the structure of an Essbase database,
Application Manager, generation of Essbase outlines and rule files,
Attribute Dimensions, Formula Editor, calc scripts, and data navigation.
Warehouse Builder'TM' is discussed in the class as an aid to the
development of multidimensional databases. Warehouse Builder may be used to
automatically load and calculate Essbase or other multidimensional
databases. Warehouse Builder integrates STRATEGY Query's graphical user
interface for selection of tables, rows, and columns to transfer. End users
may also examine Essbase databases using the Microsoft Excel and Lotus
1-2-3 add-ins shipped with Essbase or using Analyzer'TM'. In addition,
Essbase includes a set of modules that allows users to translate, analyze,
and report foreign financial data. The class addresses topics through
lecture and provides hands-on exercises to reinforce the learning points.
ShowCase Training Calendar
- --------------------------------------------------------------------------------
Date Event Location
- --------------------------------------------------------------------------------
9/9/02-9/10/02 Query Training Chicago, Illinois
- --------------------------------------------------------------------------------
9/11/02 Report Writer Training Chicago, Illinois
- --------------------------------------------------------------------------------
9/12/02-9/13/02 Advanced Query Training Chicago, Illinois
- --------------------------------------------------------------------------------
9/16/02-9/18/02 Introduction to Essbase Training Chicago, Illinois
- --------------------------------------------------------------------------------
9/19/02 Analyzer Training Chicago, Illinois
- --------------------------------------------------------------------------------
9/20/02 Excel for Essbase Training Chicago, Illinois
- --------------------------------------------------------------------------------
9/23/02-9/24/02 Query Training San Francisco, California
- --------------------------------------------------------------------------------
9/23/02 Query Training Chicago, Illinois
- --------------------------------------------------------------------------------
9/25/02 Report Writer Training San Francisco, California
- --------------------------------------------------------------------------------
9/25/02 Warehouse Manager Training Chicago, Illinois
- --------------------------------------------------------------------------------
9/26/02-9/27/02 Advanced Query Training San Francisco, California
- --------------------------------------------------------------------------------
9/26/02 Advanced Query Training Chicago, Illinois
- --------------------------------------------------------------------------------
10/7/02-10/8/02 Query Training Orlando, Florida
- --------------------------------------------------------------------------------
10/9/02 Report Writer Training Orlando, Florida
- --------------------------------------------------------------------------------
10/10/02-10/11/02 Advanced Query Training Las Vegas, Nevada
- --------------------------------------------------------------------------------
10/14/02-10/15/02 Query Training Chicago, Illinois
- --------------------------------------------------------------------------------
10/15/02 Analyzer Training Chicago, Illinois
- --------------------------------------------------------------------------------
10/16/02 Report Writer Training Chicago, Illinois
- --------------------------------------------------------------------------------
10/17/02-10/18/02 Advanced Query Training Chicago, Illinois
- --------------------------------------------------------------------------------
10/21/02-10/23/02 Introduction to Essbase Training Chicago, Illinois
- --------------------------------------------------------------------------------
10/24/02 Analyzer Training Chicago, Illinois
- --------------------------------------------------------------------------------
11/4/02-11/5/02 Query Training Las Vegas, Nevada
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
11/6/02 Report Writer Training Las Vegas, Nevada
- --------------------------------------------------------------------------------
11/7/02-11/8/02 Advanced Query Training Las Vegas, Nevada
- --------------------------------------------------------------------------------
11/11/02-11/12/02 Query Training Chicago, Illinois
- --------------------------------------------------------------------------------
11/13/02 Report Writer Training Chicago, Illinois
- --------------------------------------------------------------------------------
11/14/02-11/15/02 Advanced Query Training Chicago, Illinois
- --------------------------------------------------------------------------------
11/18/02-11/20/02 Introduction to Essbase Training Chicago, Illinois
- --------------------------------------------------------------------------------
11/21/02 Analyzer Training Chicago, Illinois
- --------------------------------------------------------------------------------
11/22/02 Enterprise Reporting Training Chicago, Illinois
- --------------------------------------------------------------------------------
12/9/02-12/10/02 Query Training Chicago, Illinois
- --------------------------------------------------------------------------------
12/11/02 Report Writer Training Chicago, Illinois
- --------------------------------------------------------------------------------
12/12/02-12/13/02 Advanced Query Training Chicago, Illinois
- --------------------------------------------------------------------------------
12/16/02-12/18/02 Introduction to Essbase Training Chicago, Illinois
- --------------------------------------------------------------------------------
12/19/02 Analyzer Training Chicago, Illinois
- --------------------------------------------------------------------------------
12/20/02 Excel for Essbase Training Chicago, Illinois
- --------------------------------------------------------------------------------