**Exhibit 10.40**

 

**SOFTWARE LICENSE AND SERVICESAGREEMENT  [DOMESTIC]**

 

THIS SOFTWARE LICENSE AND SERVICES AGREEMENT (“Agreement”)is made and entered into as of **[DATE]**(the “Effective Date”), by and between Primal Solutions, Inc., a Delawarecorporation, with its principal place of business at 18881 Von Karman Avenue,Suite 500, Irvine, California 92612 (“Primal”), and **[COMPANY NAME]**, a  **[STATE]****[ENTITYTYPE]** with its principal place of business at **[ADDRESS]**(“Company”).

ThisAgreement provides the terms and conditions under which Primal will license itssoftware and provide certain services to Company.  Based on the foregoing, and the covenants,representations, and warranties contained in this Agreement, the parties agreeas follows:

 

**AGREEMENT**

**1.             Conditions Precedent.**

**1.1         **Signature and Payment.  Primal’sobligations and the license grant in this Agreement are expressly conditionedon Primal’s prior receipt of: (i) a copy of the Agreement executed by anauthorized signatory of Company and (ii) any advance payments set forth inExhibit A.

**1.2         **Prerequisites.  Primal shallprocure, on Company’s behalf and at Company’s expense, or Company shallpurchase, at its sole expense, certain third party hardware and software, asset forth on Exhibit A (such hardware and software, the “Prerequisites”).  If Primal procures any of the Prerequisitesfor Company, Company shall reimburse Primal for such Prerequisites at theprices and on the terms set forth on Exhibit A.

**2.****                                     ****License****.**

**2.1**                               License Grant.  Subject to the terms and conditions of thisAgreement, Primal hereby grants to Company a limited, nonexclusive license forthe Term to install, load, execute, store and display one (1) copy of each typeof software set forth in Exhibit A (the “Software”), in object code form only, solelyat the location(s) set forth on Exhibit A, in exchange for the fees specifiedin Exhibit A, and solely for Company’s data processing needs and relatedinternal business purposes.

**2.2****                              **Restrictions.  The Software has been licensed, not sold, toCompany.  Primal reserves all rights notexpressly granted to Company in this Agreement. Without limitation, Company shall not: (i) transfer, sublicense, lend,rent, or otherwise distribute or make the Software available to any thirdparty; (ii) copy the Software, except that Company may make one copy of theSoftware for archival, back-up, and disaster recovery purposes; (iii) createderivative works from or otherwise modify the Software; (iv) disassemble,decompile, reverse engineer, or otherwise attempt to obtain the source code of theSoftware; (v) use the Software to provide services to any third party as aservice bureau, application service provider, managed service provider, or thelike; or (vi) authorize or encourage any third party to take any action prohibitedby this Agreement.

**2.3****                              **Open SourceRestrictions.  An “OpenSource License” is a license agreement that requires as a condition of use,modification, or distribution that the software that is the subject of thatagreement or other software incorporated into, derived from or distributed withsuch software be:  (i) disclosed ordistributed in source code form; (ii) licensed for the purpose of makingderivative works; or (iii) redistributable at no charge.  Company shall not, through any act oromission, cause any portion of the Software to become subject to an Open SourceLicense.

**2.4****                              **Proprietary Rights Notices.  Company shall not delete or in any manneralter the copyright, trademark, and other proprietary rights notices appearingon the Software.  Company shall reproducesuch notices on any copy it makes of the Software.

**3.****                                     ****Maintenance and Support****.**

**3.1****                              **Maintenance Services.  During the Maintenance Term (as definedbelow), Primal shall use commercially reasonable efforts to provide the “MaintenanceServices” described on Exhibit B to Company, subject to Company’s timelypayment of the Maintenance Services fees set forth in Exhibit B.  If Company does not purchase Maintenance Servicesfrom Primal, Primal shall have no obligation to provide maintenance or supportfor the Software.

**3.2****                              **Maintenance Term.  Primal will provide Maintenance Services forthe term specified on Exhibit B (the “Maintenance Term”).  The Maintenance Term will automatically renewfor unlimited, successive one-year terms, unless either party gives notice ofits intent not to renew at least 60 days prior to the expiration of thethen-current Maintenance Term.  Upon therenewal of each Maintenance Term, Primal shall have the right, in its sole andexclusive discretion, to increase the amount of the Maintenance Services fees;provided, however, that such increases will not exceed more than 10% per annumand 25% in a given three-year period.

**4.****                                     ****Professional Services****.**

**4.1****                              **Statements of Work.  Primal shall use commerciallyreasonable efforts to render, in a timely and professional manner, the services(the “Professional Services”) set forth on the statement(s) of work that areattached as Exhibit C or that may be executed from time to time by the parties(“Statements of Work”).  Company shallmake available to Primal any data; information; access to facilities, software,or 

 

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                                                other resources;and any other materials required by Primal to perform the Professional Services.  Company shall ensure that all such materials areaccurate and complete.

**4.2****                              **Change Orders.  Company may submit to Primal written requeststo change the scope of Professional Services described in a Statement of Work(each such request, a “Change Order Request”). Primal may, in its discretion, honor such Change Order Request, but Primalhas no obligation to do so.  If Primal electsto honor such a Change Order Request, then Primal will promptly notify Companyif it believes that the Change Order Request requires an adjustment to the feesor to the schedule for the performance of the Professional Services.  If so, the parties will negotiate in goodfaith a reasonable and equitable adjustment to the fees or schedule, asapplicable.  Primal will continue toperform Professional Services pursuant to the existing Statement of Work andwill have no obligation to honor any Change Order Request unless and until theparties have agreed in writing to such an adjustment.

**4.3****                              **Approvals.  Primal shallsubmit completed deliverables under any Statement of Work (“Deliverables”) toCompany for approval as follows:  Primalshall deliver such Deliverable(s) to Company (e.g., by notifying Company thatsuch Deliverable(s) are available to be viewed on Company’s servers).  Company shall approve the Deliverable(s) inwriting within two business days of its review. Failure by Company to approve such Deliverable(s) in writing within suchtwo business days:  (i) will be deemed anacceptance of such Deliverable(s) and (ii) may result in delays in production ordelays in delivery of the completed performance of the Professional Services;provided, further, that any use by Company of any Deliverables, other than fortesting and acceptance purposes, will constitute Company’s full acceptance ofsuch Deliverable(s).  If within such twobusiness days, Company notifies Primal in writing that it does not accept any Deliverable(s),it shall promptly provide to Primal a detailed writing listing Company’sreasons for not accepting each Deliverable. Such notice of non-acceptance will contain a mutually-agreed on extendedcompletion date for the Professional Services. Primal shall use commercially reasonable efforts to correct the listeddeficiencies and shall re-submit such Deliverable(s) in accordance with thisSection.  

**5.****                                     ****Ownershipof Intellectual Property Rights****.**

**5.1         **Pre-existing Intellectual Property Rights. Except as expressly provided in this Agreement, neither party will gainany ownership or other interest in or to any of the intellectual property orproprietary information of the other party by reason of this Agreement,operation of law, or otherwise.  Withoutlimitation, as between Primal and Company, Primal will retain exclusiveownership of the Software and all other intellectual property that it uses orprovides to Company in rendering the Maintenance or Professional Services.  

**5.2**                               Derivatives andDeliverables.  Primal shallexclusively own all intellectual property and other rights in and to:(i) the Deliverables and (ii) any corrections, modifications, upgrades,updates, new releases, new versions, or other derivative works of the Software(collectively “Deliverables”).  Primalshall, and hereby does, grant Company a license in and to any Derivatives andDeliverables created in accordance with this Agreement on the terms andconditions set forth in Section 2.

**6.****                                     ****Monetary Provisions****.**

**6.1****                              **Invoices;Payments.  Companyshall pay: (i) all fees as specified in each Exhibit and (ii) all invoices,without deduction or offset, within 30 days of receipt.  All payments shall be forwarded to “AccountsReceivable” at the Primal address specified above.  Outstanding amounts not paid when due willaccrue interest at the lower of 11⁄2% per month or the highest monthly rateallowed by applicable law, whichever is lower. The obligation to pay and the payment of any such interest will notoperate to extend any payment due date, and Primal waives no rights byaccepting late payment with interest. Company’s payment of all sums due Primal is a condition precedent to Company’srights under this Agreement.

**6.2****                              **Expenses.  Company shall reimburse Primalfor its reasonable, documented costs and expenses incurred directly inconnection with the Maintenance Services or Professional Services (including,without limitation, coach airfare, meals, phone, and lodging).

**6.3****                              **Taxes.  All amounts payable by Companyare exclusive of (and Company shall be solely responsible for) all taxesimposed by any governmental entity on the transactions contemplated by thisAgreement, excluding taxes based on Primal’s net income.  When Primal has the legal obligation to payor collect such taxes, it will invoice Company unless Company provides Primalwith a valid tax exemption certificate authorized by the appropriate taxingauthority.

**7.****                                     ****Term; Termination****.**

**7.1****                              **Term.  The term of this Agreement (the “Term”) willcommence on the Effective Date and will continue for five years unless earlier terminated as provided below.  Thereafter, this Agreement will renewautomatically for unlimited, successive one-yearrenewal Terms until terminated, unless a party gives written notice tothe other of its intent not to renew at least 60 days prior to the expirationof the then-current Term.

**7.2****                              **Termination by Right.  Either party may terminate this Agreement uponwritten notice in the event of a material breach by the other party, if suchbreach remains uncured for 60 days following such written notice.  Primal may also terminate this Agreement:  (i) immediately as provided in Section 12.4;(ii) upon written notice if Company breaches any of its paymentobligations to Primal and such breach remains uncured for 30 days following suchwritten notice; or (iii) on five days written notice, as provided inSection 10.2.  Termination will beeffective immediately and automatically on the expiration of the applicablenotice period, without further notice or action by either party.

 

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**7.3****                              **Use of Software.  Upon termination or expiration of thisAgreement, Company shall immediately delete or destroy all copies of theSoftware, Derivatives, and Deliverables, and any portion of any of theforegoing (including, without limitation, any documentation) in its possessionor control.  Within 20 days following thedate of such termination or expiration, an officer of Company shall certify inwriting to Primal that Company has complied with the terms of this Section.

**7.4****                              **General Termination Matters.  All liabilities accruing up to the expirationof the Term or any termination of this Agreement will survive such date.  Within 30 days of any termination, Companyshall pay to Primal the total amount of all fees and expenses that would havebecome payable through the end of the then-current Term.  The then-current Maintenance Term and allStatements of Work will terminate.  Thefollowing provisions will survive expiration or termination:  1.1, 5, 6, 7.3, 7.4, 8.4, 9, 10, 11, 12.1,12.2, 12.3, and 13.

**8.****                                     ****Representations and Warranties****.**

**8.1****                              **Software Warranty.

**8.1(a)****                **Warranty.  For 90 days after its installationand for the duration of the Maintenance Term (if any), Primal warrants that:  (i) the Software will operate free of anymaterial errors and in material conformance with its documentation andspecifications and (ii) the Software will interoperate with the Prerequisites,free of any material errors, provided that the Prerequisites are functioningproperly.

**8.1(b)****                **Warranty ClaimsProcedure.  Any failureof the Software to operate in accordance with the foregoing warranty will bedeemed an “Error.”  Company shallpromptly notify Primal of, and adequately describe, the Error.  Company’s exclusive remedy and Primal’s soleobligation for any breach of the warranty in Section 8.1(a) will be thefollowing:  (i) to provide Companywith a replacement copy of the Software containing any correction ormodification needed to remedy the Error or (ii) to use commercially reasonableefforts to correct the Error, which may include consultation with themanufacturer or licensor of the Prerequisites, in accordance with Exhibit B.  Company’s sole and exclusive remedy forPrimal’s failure to correct the Error will be the receipt of credits inaccordance with Exhibit B.  Primal shallnot be obligated to remedy any Error which cannot be adequately reproduced byPrimal.  The warranties set forth in thisSection do not apply if the Software has been:  (a) altered, except by Primal or in accordancewith its instructions; (b) used in conjunction with another product (except forthe Prerequisites) resulting in the Error; (c) used other than in its mostcurrent version (to the extent that any failure of the Software would have beenavoided by the use of the most current version); or (d) damaged by improperenvironment, abuse, misuse, accident or negligence.  If Primal determines that the Error has beencaused by (a)-(d), Primal shall inform Company, and Company shall have theright to engage Primal to attempt to fix such Error, for which it willcompensate Primal in accordance with Exhibit B.

**8.2****                              **Prerequisites.  If Primal determines that an Error has beencaused by the Prerequisites or any other third-party product, Primal shallinform Company, and Company shall have the right to engage Primal to attempt tofix such Error, for which it will compensate Primal in accordance with ExhibitB.  Primal shall reasonably cooperate, atCompany’s expense, in assisting Company to enforce any warranties provided bythe manufacturer or licensor of the Prerequisites.

**8.3****                              **Service Warranty. ** **Primal herebyrepresents and warrants to Company that:  (i) it will perform all Professional andMaintenance Services in a competent, workmanlike manner and (ii) theDeliverables will be free of any material defects or errors for a period of 90days following their acceptance by Company. The terms of the Warranty Claims Procedure described in Section 8.1(b) willgovern any claims by Company relating to the Deliverables.

**8.4****                              **By Each Party.** **Each party represents and warrants tothe other that: (i) it has the full corporate right, power, and authority toenter into and to perform the acts required of it under this Agreement; (ii) theexecution and delivery of this Agreement and the performance of its obligationsdo not and will not violate any agreement to which it is or will be otherwisebound; and (iii) it will comply with all applicable laws, rules, and regulationsin exercising its rights and performing its obligations under this Agreement.

**9.****                                     ****Disclaimers; Exclusions;Limitations****.**

**9.1****                              **DISCLAIMER OFWARRANTIES.  EXCEPT ASEXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTYSPECIFICALLY DISCLAIMS, ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KINDRELATING TO THE PROFESSIONAL SERVICES, MAINTENANCE SERVICES, PREREQUISITES,DELIVERABLES, AND SOFTWARE AND USE OF ALL OF THE FOREGOING (INCLUDING, WITHOUTLIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,AND NON-INFRINGEMENT), AS WELL AS ANY WARRANTIES THAT THE PROFESSIONALSERVICES, MAINTENANCE SERVICES, THE PREREQUISITES, THE DELIVERABLES, AND THESOFTWARE WILL ACHIEVE A PARTICULAR RESULT, OR WILL BE UNINTERRUPTED ORERROR-FREE.  OTHER THAN AS EXPRESSLYPROVIDED IN SECTIONS 8.1 AND 8.2, PRIMAL MAKES NO REPRESENTATIONS ANDWARRANTIES, AND ASSUMES NO OBLIGATIONS OR LIABILITY, ARISING FROM, RELATING TO,OR CONNECTED WITH THE PREREQUISITES.

**9.2****                              **EXCLUSION OFDAMAGES.  EXCEPT IN CONNECTION WITH ACLAIM BASED ON AN INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTYRIGHTS OR UNAUTHORIZED USE OR DISCLOSURE OF ITS CONFIDENTIAL INFORMATION, IN NOEVENT WILL EITHER PARTY BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANYINDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL 

 

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                                                DAMAGES OF ANYKIND (INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING FROM BREACH OFCONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), INCLUDING,WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, DATA, OR USE, OR FOR INTERRUPTEDCOMMUNICATIONS, OR FROM ANY DEFECT, ERROR, OR MALFUNCTION OF THE PROFESSIONALSERVICES, MAINTENANCE SERVICES, PREREQUISITES, DELIVERABLES, OR SOFTWARE, EVENIF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OR SHOULD KNOW OF THEPOSSIBILITY OF SUCH DAMAGES.

**9.3****                              **LIMITATION OFLIABILITY.  EXCEPT INCONNECTION WITH A CLAIM BASED ON AN INFRINGEMENT OF THE OTHER PARTY’SINTELLECTUAL PROPERTY RIGHTS OR UNAUTHORIZED USE OR DISCLOSURE OF ITSCONFIDENTIAL INFORMATION, IN NO EVENT WILL THE TOTAL, AGGREGATE LIABILITY OFEITHER PARTY TO THE OTHER ARISING FROM, RELATING TO, OR CONNECTED WITH THISAGREEMENT EXCEED THE AMOUNT OF THE SUMS OWED TO PRIMAL UNDER THIS AGREEMENT.

**9.4****                              **BASIS OF BARGAIN.  THE PARTIES HAVE AGREED THAT THE DISCLAIMERS,EXCLUSIONS, AND LIMITATIONS SPECIFIED IN THIS AGREEMENT WILL REMAIN IN FULLFORCE AND EFFECT EVEN IF ANY SUCH SECTION (OR PORTION THEREOF) IS FOUND TO HAVEFAILED OF ITS ESSENTIAL PURPOSE.  THEPARTIES ACKNOWLEDGE AND AGREE THAT PRIMAL HAS SET ITS PRICES AND ENTERED INTOTHIS AGREEMENT IN RELIANCE ON SUCH DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS,WHICH ALLOCATE THE RISK BETWEEN PRIMAL AND COMPANY AND FORM A BASIS OF THEBARGAIN BETWEEN THE PARTIES.

**10.****                              ****Indemnity****.**

**10.1****                       **By Primal.  Primal shall defend, indemnify, and holdCompany and its affiliates and each of their respective shareholders,directors, officers, successors, and assigns harmless from any damage, loss,cost, liability, or expense (including reasonable attorneys’ and experts’ fees)(collectively, “Losses”) arising from, relating to, or connected with anyclaim, action, or demand (a “Claim”) brought by a third party alleging:  (i) that the Software infringes any UnitedStates copyright or United States patent in force on or before the EffectiveDate; (ii) death or personal injury caused by Primal’s negligence; (iii)violation of applicable law; or (iv) gross negligence or willful misconduct byPrimal.  Primalshall have no obligation to indemnify Company if Company is more than 30 dayslate with respect to any fees that it owes Primal.

**10.2****                       **InfringementClaims.  If Company’s right to use theSoftware, in Primal’s opinion, may be enjoined due to the type of claimspecified in Section 10.1(i) above (an “Infringement Claim”), then Primal may,at its sole option and expense: (i) procure for Company the right to continue using the Software;(ii) replace or modify the Software so that it is non-infringing; or(iii) if options (i) and (ii) above cannot be accomplished despite Primal’sreasonable efforts, then Primal may terminate this Agreement on five dayswritten notice.  Primal will have no obligation whatsoever in connection with anInfringement Claim to the extent that it results from: (i) modificationsto the Software made by a party other than Primal, if a claim would not haveoccurred but for such modifications; (ii) the combination, operation oruse of the Software with equipment, devices, software or data that are notPrerequisites or otherwise expressly authorized by Primal, if a claim would nothave occurred but for such combination, operation or use; (iii) Company’sfailure to use updated or modified Software provided by Primal;(iv) Primal’s use of any designs or specifications provided by Company; or(v) Company’s use or distribution of the Software other than in accordancewith this Agreement.  This Section10 states Primal’s complete obligation and Company’s sole and exclusive remedywith respect to an Infringement Claim.

**10.3****                       **By Company.  Company shall defend, indemnify, and holdPrimal and its affiliates and each of their respective shareholders, directors,officers, successors, and assigns from any and all Losses arising from,relating to, or connected with any Claim brought by a third partyalleging:  (i) a breach by Company of anyof its representations or warranties under this Agreement; (ii) an act oromission by Company causing Primal to breach this Agreement or infringe theintellectual property rights of a third party; (iii) death or personal injurycaused by Company’s negligence; (iv) violation of applicable law; or (v) grossnegligence or willful misconduct by Company.

**10.4****                       **IndemnificationProcedure.  A partyseeking indemnification pursuant to the terms of this Section (an “IndemnifiedParty”) must:  (i) promptly notifythe other party (the “Indemnifying Party”) in writing of the Claim;(ii) grant the Indemnifying Party sole control of the defense andsettlement of the Claim, provided that the Indemnified Party has the right toreasonably approve the terms of any settlement before being bound by it, such approvalnot to be unreasonably withheld or delayed; and (iii) provide theIndemnifying Party, at such party’s expense, with all assistance, informationand authority reasonably required for the defense and settlement of the Claim.

**11.****                              ****Confidentiality****.**

**11.1****                       **Definition.  Confidential Information means informationand materials (regardless of whether in oral, written or electronic form) concerninga party’s operations, business, or intellectual property rights that aredesignated as confidential or that, based on its nature or the nature of itsdisclosure, a reasonable person would know is confidential, including, withoutlimitation, the terms of this Agreement. “Confidential Information” does not include information that: (i) isknown by such party at the time of receipt from the other party and is notsubject to an independent obligation of confidentiality; (ii) is now or becomesgenerally known in the industry through no fault of the receiving party; (iii)is acquired from a third party in rightful possession thereof and under noobligation of confidentiality; or (iv) is otherwise lawfully and 

 

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                                                independentlydeveloped by such party without reference to the other party’s ConfidentialInformation.

**11.2****                       **Obligation.  Each party shall:  (a) not use or authorize the use of theConfidential Information of the other party for any purpose other than tofulfill its obligations under this Agreement; (b) hold such ConfidentialInformation in strict confidence and protect such Confidential Information withthe same degree of care (but no less than a reasonable degree of care) normallyused to protect its own similar Confidential Information; (c) take all steps asmay be reasonably necessary to prevent such Confidential Information from beingrevealed to any person or entity other than to those of its employees who havea need to know such Confidential Information to enable it to fulfill itsobligations under this Agreement; and (d) not copy or reproduce anyConfidential Information in any media (except as may be strictly necessary toenable it to fulfill its obligations under this Agreement).  The parties further agree that if eitherparty is directed to disclose any portion of any Confidential Information ofthe other party by operation of law, rule, or regulation, it shall immediatelynotify the other party and, at the sole cost of the other party, shall assistthe other party in seeking a suitable protective order or assurance ofconfidential treatment.

**12.****                              ****Enforcement Matters****.**

**12.1****                       **Governing Lawand Jurisdiction.  ThisAgreement and all matters arising from, relating to, or connected with thisAgreement will be governed by the laws of the State of California withoutregard to conflicts of laws principles. With respect to any litigation arising from, relating to, or connectedwith this Agreement, each party irrevocably: (i) submits to the exclusive jurisdiction of any state or federal courtlocated in Orange County, California and (ii) waives, to the fullest extentpermitted by law, the defenses of lack of personal jurisdiction, inconvenientforum, and improper venue.

**12.2****                       **Attorneys’ Fees.  The prevailing party in any action orproceeding arising from, relating to, or connected with this Agreement will beawarded its attorneys’ and experts’ fees. Any award of attorneys’ fees under this Section 12.2 will not accruetowards the Limitation of Liability in Section 9.3.

**12.3****                       **InjunctiveRelief.  Company acknowledges and agreesthat the Software, and Primal’s intellectual property rights therein, are of aunique and extraordinary character and that the unauthorized use thereof wouldcause Primal irreparable harm, which could not be adequately remedied bymonetary damages.  Accordingly, ifCompany breaches or threatens to breach any of the provisions of Section 2 orotherwise infringes or threatens to infringe Primal’s intellectual propertyrights, Primal shall have the right to obtain injunctive or other equitablerelief on an expedited basis, without the need to post a bond or othersecurity.

**12.4****                       **Verification and Audit.  At Primal’s written request or as may bespecified in an Exhibit, Company shall furnish Primal with a certificationsigned by an officer of Company verifying that the Software is being usedsolely as permitted under this Agreement. On at least 30 days prior written notice, Primal may audit Company’s useof the Software to ensure that Company is complying with the terms of thisAgreement, including, without limitation, the payment of fees.  Any such audit will be conducted duringregular business hours at Company’s facilities (or remotely) and Primal willuse reasonable efforts to avoid unreasonable interference with Company’sbusiness activities.  Company shall providePrimal with access to the relevant Company records and facilities.  If the audit reveals that the Company hasused the Software beyond the scope of its license, or has failed to pay fees applicableto its use of the Software, Company shall cure such breach within 10 days followingwritten notice.  If Company fails to doso, Primal may terminate this Agreement immediately on written notice.

**13.****                              ****General Terms****.**

**13.1****                       **Notices.  Any notices or other communications permittedor required will be in writing and be deemed given:  (i) on delivery, if personally delivered,(ii) on delivery, if delivered by reputable overnight courier that providesproof of delivery, or (iii) three business days following deposit in the UnitedStates mail, first class, postage prepaid, certified or registered, and returnreceipt requested.

**13.2****                       **Export Controls.  Both parties shall adhere to all applicablelaws, regulations and rules relating to the export of technical data.

**13.3****                       **Government-RestrictedRights.  If the Software or documentation is licensedby an agency of the United States Government subject to the DFAR, the Softwareand documentation is commercial computer software and commercial computersoftware documentation under DFAR 227.7202 (or any successor regulation havingsimilar effect) and the Government has only the rights specified in thisAgreement.  For other agencies of theUnited States Government, the Software and documentation is restricted computersoftware and is provided with the rights under paragraph (c) of the CommercialComputer Software — Restricted Rights clause at FAR 52.227-19 (June 1987) orany successor provision having similar effect, and the such a licenseeacknowledges that it is not feasible to affix the notice set out in paragraph(c)(4) of that clause.

**13.4****                       **Force Majeure.  Neither party will be liable for any failureor delay in the performance of its obligations (except for the payment ofmoney) because of strikes, shortages, riots, insurrection, fires, flood, storm,explosions, earthquakes, acts of God, war, terrorism, governmental action,supplier problems, or any other force majeure event.  Each party will use its reasonable efforts tonotify the other party of the occurrence of such an event within three businessdays of obtaining knowledge that such event will cause such a failure or delay.

**13.5****                       **General Matters.  The parties are independent contractors and nojoint venture, partnership, employment, agency or similar arrangement iscreated 

 

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                                                between them.  Neither party has the right or power to actfor or on behalf of the other or to bind the other in any respect.  This Agreement will be binding on each partyand its successors and permitted assigns. This Agreement may not be assigned by either party without the otherparty’s prior written consent, except that Primal may assign this Agreement inconnection with a merger, sale of its business relating to this Agreement,stock purchase, reorganization, or the like. This Agreement (including the Exhibits and Statements of Work hereto,which are incorporated herein by this reference) contains the entireunderstanding of the parties regarding its subject matter, and supersedes allprior and contemporaneous agreements and understandings between the partiesregarding thereto.  If the terms of thisAgreement conflict with any Exhibit or Statement of Work, the documents willgovern and be given precedence in the following order: (i) this Agreement; (ii)Exhibit A; (iii) Exhibit B; and (iv) Exhibit C, except with respect to any “specialcontract terms” that may be included in an Exhibit, which will take precedenceover this Agreement.  Except as expresslyprovided in this Agreement, this Agreement may only be modified, supplemented,amended or waived in a writing signed by both parties.  No failure or delay by a party in exercisingany right, power, or privilege under this Agreement will operate as a waiverthereof.  The invalidity or unenforceabilityof any provision of this Agreement will not affect the validity orenforceability of any other provision of this Agreement, all of which willremain in full force and effect.  ThisAgreement will be construed as if drafted jointly by the parties, and eitherparty’s failure to obtain legal counsel or other advice in connection with thisAgreement, constitutes a waiver of any objection or claim that may be based onsuch failure.  This Agreement may beexecuted in counterparts, both of which taken together will constitute one andthe same document.  Facsimile signatures willbe treated in all respects as having the same effect as an original signature.

The parties have executedthis Agreement as of the Effective Date.

 
| **PRIMAL SOLUTIONS, INC.** | ** **        | **COMPANY** |
|----------------------------|-------------------|-------------|
| ** **                 | ** **        | ** **  |
| **By:**                    |              | ** **  | **By:** |   |
| ** **                 | *(Signature)*     | ** **  | ** ** | *(Signature)* |
| **Name:**                  |              | ** **  | **Name:** |   |
| ** **                 | *(Print or Type)* | ** **  | ** ** | *(Print or Type)* |
| **Title:**                 |              | ** **  | **Title:** |   |
| ** **                 | *(Print or Type)* | ** **  | ** ** | *(Print or Type)* |

 

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