Exhibit 10.1


    
      
        

      


      Exhibit
        10.1

       

      Licensed
&
Developed
        Works Agreement
Statement of
        Work

      Base
        Agreement #4900PC0033
SOW#
        4906FL0029

      This
        Statement of Work (“SOW”) # 4906FL0029 adopts and incorporates by
        reference the terms and conditions of Licensed and Developed Works Agreement
        #
        4900PC0033/PDSC-99-1146 (“Base Agreement”) between International Business
        Machines Corporation (“Buyer”) and Pacific Decision Sciences Corporation
        (“Supplier”). This SOW is effective beginning on May 1, 2006 and will remain in
        effect until terminated. Transactions performed under this SOW will be conducted
        in accordance with and be subject to the terms and conditions of this SOW,
        the
        Base Agreement, and any applicable Work Authorizations (“WAs”). This SOW is not
        a WA. 

       

      This
        SOW supersedes and replaces SOW #4900PC0034/PDSC-99-9198 dated March
        31, 1999 and all amendments thereto. 

       

      1.0
Scope
        Of Work 

      Buyer
        licenses from Supplier a computer software program known as PDSC
        Service Management System, Version: 7.4 (Base Software) and all PDSC Service
        Modules currently installed at IBM, including RF and Web Interfaces, which
        enable those activities and capabilities described by Section 3.0 of this
        SOW.
        Supplier will provide to Buyer the Licensed Works described in Section 3.0
        of
        this SOW. Supplier will provide Buyer with maintenance and support for the
        Licensed Works as described in the Attachment entitled “Testing, Maintenance and
        Support.”. 

       

      2.0
        Definitions 

      The
        following definitions are applicable to this SOW and are in addition
        to or in place of, the definitions listed in Section 1.0 of the Base Agreement.
        

       

      Strategic
        Call Management Application– (hereinafter
“SCM”) means web-based Call Center application to support Buyer’s Global Service
        Delivery Process (“GSDP”) by improving customer service, reducing the dependency
        on multiple legacy environments, consolidating systems where appropriate,
        and
        enabling business changes to be introduced and delivered quickly on a global
        basis. The solution will introduce a service oriented architecture utilizing
        Buyer and Supplier services components. 

       

      3.0
Licensed
        Work 

      3.1   
Description
        of
        Licensed Work 

      General
        Description of Licensed Work: 

      	
               

            	
               

            	
               

            	
               

            
	
              1.

            	
              Code
                name and
                version number 

            
	
               

            	
              a.

            	
              PDSC
                Service
                Management System, Version: 7.4 (“Base Software”)

            
	
               

            	
              b.

            	
              All
                PDSC Service
                Modules and Subsystems (hereinafter “Modules”) currently installed at
                Buyer, including RF and Web Interfaces. 

            
	
               

            	
              c.

            	
              All
                Developed
                Works created by Supplier under the terms of an SOW between Buyer
                and
                Supplier 

            
	
              2.

            	
              General
                description of its function 

            
	
               

            	
              Service
                Modules and Subsystems 

            
	
               

            	
               

            
	
               

            	
              DISPATCH
                

            
	
               

            	
              •

            	
              Call
                Management
                

            
	
               

            	
              •

            	
              Installed
                Configuration Management 

            
	
               

            	
              •

            	
              Automatic
                Technician Assignment 

            
	
               

            	
              •

            	
              Complaint
                Management 

            
	
               

            	
              •

            	
              Full-time
                Background Escalation Routine 

            
	
               

            	
              TAC
                (Technical Assistance Center) 

            
	
               

            	
              •

            	
              Provides
                on-line
                telephone support to help diagnose and resolve problems


            
	
               

            	
              •

            	
              Expert
                System
                with self-learning database updated via Technician call close information
                

            
	
               

            	
              •

            	
              Problem-Symptom-Cause-Action
                Trees per Product 

            
	
               

            	
              SCHEDULING


            
	
               

            	
              •

            	
              Employees
                Calendar for Availability 

            
	
               

            	
              •

            	
              Planned
                Events
                Management (FCO, PM, Installs, Etc.) 

            
	
               

            	
              T&M
                BILLING 

            
	
               

            	
              •

            	
              Data
                collected
                from Service Call 

            
	
               

            	
              •

            	
              Approval
                Cycles
                and Limits 

            



      
        	
                 

              	
                 

              	
                 

              
	
                Licensed
                  and
                  Developed Works Agreement
Statement of Work LDWA_SOW)

              	
                Page
                  1 of 9

              	
                 

              


      


      

      
      


      Licensed
&
Developed
        Works Agreement
Statement of
        Work

       

      Base
        Agreement #4900PC0033
SOW#
        4906FL0029

       

      	
               

            	
               

            	
               

            	
               

            
	
               

            	
              •

            	
              Audit
                Trails
                

            
	
               

            	
              •

            	
              Invoicing
                

            
	
               

            	
              MAINTENANCE
                CONTRACTS 

            
	
               

            	
              •

            	
              Quotation
                Sales
                Cycle 

            
	
               

            	
              •

            	
              Prospect
–
                Proposal – Multiple Quotes – Contract 

            
	
               

            	
              •

            	
              Multiple
                Coverage Options 

            
	
               

            	
              •

            	
              Billing
                and
                Renewal Management 

            
	
               

            	
              •

            	
              Profitability
                Reporting 

            
	
               

            	
              INVENTORY
                AND DEPOT REPAIR 

            
	
               

            	
              •

            	
              EPO,
                Purchase
                Order, Field Replenishment Order 

            
	
               

            	
              •

            	
              Multiple
                Level
                Parts Stocking Echelon 

            
	
               

            	
              •

            	
              Serial
                Number
                History 

            
	
               

            	
              •

            	
              Parts
                Forecasting 

            
	
               

            	
              •

            	
              RMA
                management
                

            
	
               

            	
              •

            	
              Repair
                Process
                Management 

            
	
               

            	
              •

            	
              Asset
                Management
                

            
	
               

            	
              TRAINING
                

            
	
               

            	
              •

            	
              Training
                Facility/Class Room Scheduling 

            
	
               

            	
              •

            	
              Training
                Machines and Material Management 

            
	
               

            	
              •

            	
              Enrollment,
                Class Size, and Diploma Management 

            
	
               

            	
              •

            	
              Instructor
                Availability Scheduling 

            
	
               

            	
              •

            	
              Supports
                Free,
                Fee, Discounts, and Coupons Classes 

            
	
               

            	
              •

            	
              Automatic
                Update
                of Employee Skill Base 

            
	
               

            	
              ADDITIONAL
                FEATURES 

            
	
               

            	
              •

            	
              Web
                Enabled for
                Customer e-service 

            
	
               

            	
              •

            	
              Expert
                System
                Process (ESP) Scripting Tool 

            
	
               

            	
              •

            	
              Entitlement
                

            
	
               

            	
              •

            	
              Auto
                Routing and
                Scheduling 

            
	
               

            	
              •

            	
              RF
                Technician
                Device Driver 

            
	
               

            	
              •

            	
              Two-way
                and
                Alpha Paging 

            
	
               

            	
               

            	
              •

            	
              One-way
                Paging
                supported in Base System 

            
	
               

            	
               

            	
              •

            	
              Paging
                Options
                to Support All Paging devices and methods as well as All Carriers
                

            
	
               

            	
               

            	
              •

            	
              Auto
                Faxing
                

            
	
               

            	
              •

            	
              Remote
                Wireless
                via any Browser Device and a Cellular Phone 

            
	
               

            	
               

            	
              •

            	
              Field
                Sales and
                Technician Communication Option 

            
	
               

            	
               

            	
              •

            	
              Supports
                Internet Communications via any Browser Capable Device:


            
	
               

            	
               

            	
              •

            	
              Desktop,
                Laptop,
                Handheld, Palmtop, or WAP Phone 

            
	
               

            	
               

            	
              •

            	
              Supports
                Mixed
                Devices in the Field 

            
	
               

            	
              •

            	
              Bar
                Coding for
                Inventory and Depot Repair 

            
	
               

            	
               

            	
              •

            	
              Receiving
                and
                Shipping Support 

            
	
               

            	
               

            	
              •

            	
              Physical
                and
                Cycle Inventory Counts 

            
	
               

            	
               

            	
              •

            	
              Repair
                Process
                Routine Control 

            
	
               

            	
               

            	
               

            	
               

            
	
               

            	
              Data
                Importing/Exporting 

            
	
               

            	
              The
                Base
                Software contains standard API’s for importing and exporting files for
                keeping the Base Software in-sync with most of Supplier’s Legacy Systems
                such as CIS, QSAR, WPS, RCMS, MPI, CMR, PEW, CHIS, RTS and PIMS.
                Protocols
                include: ECI, MQSeries, as well as standard ASCII file formats used
                to
                export in various IBM compatible formats. 

            
	
               

            	
               

            
	
               

            	
              Views,
                printing, reports

            
	
               

            	
              Reports
                are
                available on-line, as well as predefined printed reports. Reports
                will be
                printable on networked or standalone printers


            


       

      
 

      
        	
                 

              	
                 

              	
                 

              
	
                Licensed
                  and Developed Works Agreement
Statement of Work
                  LDWA_SOW)

              	
                Page
                  2 of 9

              	
                 

              


      


      

      
      


      Licensed
&
Developed
        Works Agreement
Statement of
        Work

       

      Base
        Agreement #4900PC0033
SOW#
        4906FL0029

      	
               

            	
               

            	
               

            
	
               

            	
              Pre-written
                reports and forms will be available for viewing and printing. Notable
                among these forms are the Service Call Statistical Analysis, Contract
                Profitability and Inventory Forecasting Reports. Existing reports
                may be
                modified by users to customize them for their specific
                situations.

            
	
               

            	
               

            
	
               

            	
              The
                Base
                Software exports all required data to existing Supplier Data Warehouses.
                Users can also develop additional reports using third-party
                report-generating software such as Crystal Reports. The Base Software’s
                export data formats will support this option. 

            
	
               

            	
               

            
	
               

            	
              Security
                

            
	
               

            	
              The
                software
                will be accessed via user ID and password entered at AIX. Optionally,
                an
                application level password can be required. There will be 3 levels
                of
                security—operator, manager, and system administrator. 

            
	
               

            	
               

            
	
              3.

            	
              Documentation
                

            
	
               

            	
              a.

            	
              All
                documentation currently provided and co-developed with Buyer. Upon
                request, Supplier will provide Base Software documentation, if
                required.

            
	
               

            	
               

            	
               

            
	
              4.

            	
              Delivery
                Requirements - Licensed Works and Service Modules will be delivered
                via
                secure File Transfer Protocol (“FTP”) 

            


      Specific
        Description of Licensed Work: 

      1.
        Code name and version number: 

      	
               

            	
               

            
	
              a)

            	
              format
                - AIX OS,
                Universe DB and System Builder 4GL Development tool 

            
	
              b)

            	
              required
                function - Call Management to support Buyer Global requirements
                

            
	
              c)

            	
              performance
                criteria – As per defined Buyer’s Performance Criteria 

            
	
              d)

            	
              quality
                criteria
                - As per defined Buyer’s Auditing Requirements 

            
	
              e)

            	
              Installation
                -
                As per defined Buyer’s Installation Requirements 

            
	
              f)

            	
              Resolution
                - N/A
                

            
	
              g)

            	
              product/operating
                system supported – Any operating system currently
                deployed or in development (IBM AIX, Linux, etc.) 

            
	
              h)

            	
              national
                language support version required - IBM NLS Support via Universe
                DB and
                System Builder 4GL Development Tool 

            


       

      3
        .2    Identification
        of Tools 

      Tools
        for the Licensed Work and any Developed Works are identified below.
        Supplier will update this list for all changes as soon as practicable after
        the
        change is identified. 

       

      
        	
                Description

              	
                Part
                  Number /
Model
Number

              	
                Version
                  /
Release

              	
                Owner

              
	
                1
                  SB
                  Client

              	
                SBClient

              	
                5.3.8
                  (build
                  386)

              	
                IBM

              
	
                2
                  System
                  Builder

              	
                System
                  Builder

              	
                5.3

              	
                IBM

              
	
                3
                  AIX

              	
                AIX

              	
                10.1

              	
                IBM

              


      

       

      3.3    
Basic
        Enhancement & Error Correction Warranty Period 

      For
        the term of this SOW, Supplier will provide to Buyer, at no charge,
        Major Enhancements, Basic Enhancements and Error Corrections to the Licensed
        Work. 

       

      4.0 
Rights
        In Licensed Works


      4.1    
Licensed
        Works

      Supplier
        grants Buyer and Buyer Personnel a nonexclusive, worldwide,
        perpetual, irrevocable, fully paid up and royalty free license to prepare
        and
        have prepared Derivative Works of the Licensed Works and to use, have used,
        execute, reproduce, transmit, display, perform, transfer and distribute
        internally within Buyer’s organization the Licensed Works and such Derivative
        Works, in any medium or distribution technology, and to grant others the
        rights
        granted herein. 

       

      
        	
                 

              	
                 

              	
                 

              
	
                Licensed
                  and
                  Developed Works Agreement
Statement of Work LDWA_SOW)

              	
                Page
                  3 of 9

              	
                 

              


      


      

      
      


      Licensed
&
Developed
        Works Agreement
Statement of
        Work

       

      Base
        Agreement #4900PC0033
SOW#
        4906FL0029

      4.2    
Patents
        

      The
        grant of rights and licenses to the Licensed Work and Derivative
        Works includes a nonexclusive, worldwide, perpetual, irrevocable, paid-up
        license under any patents and patent applications that are owned or licensable
        by Supplier now or in the future which may be (a) required to make, have
        made,
        use or have used the Licensed Works or its derivative works, or (b) required
        to
        license or transfer the Licensed Works or its derivative works. This license
        applies to the Licensed Works and any derivative works operating alone or
        in
        combination with equipment or Code. The license scope is to make, have made,
        use, have used, sell, license or transfer items, and to practice and have
        practiced methods, to the extent required to exercise the rights to the Licensed
        Works and Tools granted hereunder. 

       

      4.3    
Externals
        

      Supplier
        grants Buyer and Buyer Personnel a nonexclusive, worldwide,
        perpetual, irrevocable, paid-up license to prepare and have prepared Derivative
        Works of the Externals, and to use, have used, execute, reproduce, transmit,
        display, perform, transfer, and distribute internally within Buyer’s
        organization the Externals and such Derivative Works, in any medium or
        distribution technology, and to grant others the rights granted herein.


       

      4.4    
Names
        and
        Trademarks 

      Supplier
        grants Buyer a nonexclusive, worldwide, perpetual, irrevocable,
        paid-up license to use the names and trademarks Supplier uses to identify
        the
        Licensed Work for Buyer’s marketing of the Licensed Work and its derivative
        works. If Supplier objects to Buyer’s improper use of Supplier’s names or
        trademarks, Buyer will take reasonable steps necessary to resolve Supplier’s
        objections. Supplier may reasonably monitor the quality of Licensed Work
        bearing
        its trademark under this license. Any goodwill attaching to Buyer’s trademarks,
        service marks, or trade names belongs to Buyer and this Agreement does not
        grant
        Supplier any right to use them. 

       

      4.5    
Buyer’s
        Organization 

      As
        used in these License Grants, “Buyer’s organization” means any
        division of IBM or any of its subsidiaries in any location throughout the
        world.


       

      4.6    
        Outsourcing Services 

      Supplier
        grants Buyer and Buyer Personnel a nonexclusive, worldwide,
        perpetual, irrevocable, paid-up license to use the Licensed Works to provide
        services to legitimate customers of Buyer pursuant to an outsourcing services
        agreement being in place between Buyer and their outsourcing customer. In
        the
        event Buyer provides outsourcing services to licensed customers of the Licensed
        Works, Buyer will not owe Supplier a fee for access to or assignment of a
        license to such Licensed Work or for transfer of the applicable Licensed
        Work to
        a Buyer computer system which is of like configuration as the computer system
        for which the Licensed Work was licensed. The foregoing is subject to Buyer
        providing Supplier notice of such Licensed Work to be managed by Buyer and
        provided the Licensed Work will only be used on behalf of the customer. Upon
        expiration or termination of the agreement to provide outsourcing services
        to
        the customer, Buyer’s right to use that copy of the Licensed Work will end.


       

      5.0    
Taxes
        

      Supplier’s
        invoices shall state all applicable Taxes owed by Buyer, if
        any, by tax jurisdiction and with a proper breakdown between taxable and
        non-taxable Deliverables and Services. Supplier assumes responsibility to
        timely
        remit all such Tax payments to the appropriate governmental authority in
        each
        respective jurisdiction. Supplier agrees to use its best efforts to properly
        calculate any applicable Taxes at the time of invoice. Supplier and Buyer
        agree
        to cooperate to minimize, wherever possible and appropriate, any applicable
        Taxes, including reasonable notice and cooperation in connection with any
        audit.
        Supplier shall also bear sole responsibility for all taxes, assessments,
        or
        other levies on its own leased or purchased property, equipment or software.
        Buyer will pay incremental Taxes (which are additional Taxes due as a result
        of
        Supplier’s failure to properly invoice Buyer for the correct amount of Taxes)
        that are legally owed to Supplier. Supplier shall submit, within a reasonable
        amount of time, a “Tax Only Invoice” which represents the correct amount of
        Taxes owed. Supplier shall not request or expect payment for any fines,
        penalties, and/or interest on such incremental Taxes. This provision shall
        not
        apply when Buyer accrues the Tax or when a jurisdiction assesses such Tax
        on
        Buyer. If Buyer provides a direct pay certificate, certification of an exemption
        from Tax or reduced rate of Tax imposed by an applicable taxing 

       

      
        	
                 

              	
                 

              	
                 

              
	
                Licensed
                  and Developed Works Agreement
Statement of Work
                  LDWA_SOW)

              	
                Page
                  4 of 9

              	
                 

              


      

      

      
      


      Licensed
&
Developed
        Works Agreement
Statement of
        Work

       

      Base
        Agreement #4900PC0033
SOW#
        4906FL0029

      authority,
        then Supplier agrees not to invoice nor pay any such Tax
        unless and until the applicable taxing authority assesses such Tax, at which
        time Supplier shall invoice and Buyer agrees to pay any such Tax that is
        legally
        owed. 

       

      Buyer
        shall withhold Taxes as required under applicable law on payments
        made to Supplier hereunder and shall be required to remit to Supplier only
        the
        net proceeds thereof. Buyer agrees to remit in a timely manner all Taxes
        withheld to the appropriate government authority in each respective
        jurisdiction. 

       

      Supplier
        will reimburse Buyer from any claims by any jurisdiction
        relating to Taxes paid by Buyer to Supplier; and for any penalties, fines,
        additions to Tax or interest thereon imposed as a result of Supplier’s failure
        to timely remit the Tax payment to the appropriate governmental authority
        in
        each respective jurisdiction. Supplier shall also reimburse Buyer for any
        claims
        made by a taxing jurisdiction for penalties, fines, additions to Tax and
        the
        amount of interest thereon imposed with respect to Supplier’s failure to invoice
        Buyer for the correct amount of Tax. 

       

      6.0 
Supplier’s
        Responsibilities


      	
               

            	
               

            	
               

            	
               

            
	
              6.1

            	
              Supplier
                will deliver a completed Certificate of Originality for
                the Licensed Works provided under this SOW. Supplier will use the
                Certificate of Originality form set forth in the attachment to this
                SOW
                for these purposes. Buyer may suspend payment to Supplier for the
                Licensed
                Works if Supplier does not provide an acceptable Certificate of
                Originality. Payment will be made after Buyer receives and accepts
                the
                Certificate of Originality. 

            
	
               

            	
               

            
	
              6.2

            	
              Supplier
                will deliver a completed Confirmation of Assignment of
                Copyright form for the Licensed Works provided under this SOW. Supplier
                will use the Confirmation of Assignment of Copyright form set forth
                in the
                attachment to this SOW for these purposes. Buyer may suspend payment
                to
                Supplier for the Licensed Works if Supplier does not provide an acceptable
                Confirmation of Assignment of Copyright. Payment will be made after
                Buyer
                receives and accepts the Confirmation of Assignment of Copyright.
                

            
	
               

            	
               

            	
               

            	
               

            
	
              6.3

            	
              In
                addition to delivering Licensed Works, Supplier
                will:

            
	
               

            	
              •

            	
              participate
                in
                progress reviews, as requested by Buyer, to demonstrate Supplier’s
                performance of its obligations;

            
	
               

            	
              •

            	
              maintain
                records
                to verify authorship of Licensed Works and Developed Works for four
                (4)
                years after the termination or expiration of this SOW. On request,
                Supplier will deliver or otherwise make available this information
                in a
                form specified by Buyer;

            
	
               

            	
              •

            	
              as
                part of
                Supplier’s importation requirements, provide to Buyer on the commercial
                invoice:

            
	
               

            	
               

            	
              1.

            	
              the
                Harmonized
                Tariff Code of the importing country for every Product; and
                

            
	
               

            	
               

            	
              2.

            	
              an
                invoice
                description that provides enough detail to verify the categorical
                classification of every Product.

            
	
               

            	
              •

            	
              for
                all Supplier
                Software, supply Buyer with a report outlining the current version
                numbers
                and anticipated cessation of support dates for that Software. This
                report
                must be provided on a biannual basis or more frequently if required
                by
                Buyer 

            
	
               

            	
               

            	
               

            
	
              6.4

            	
              Testing

            
	
               

            	
              •

            	
              Supplier
                will
                perform the following tests prior to delivery of the Licensed Work
                (“Pre-Delivery Testing”): 

            
	
               

            	
               

            	
              1.

            	
              component
                testing;

            
	
               

            	
               

            	
              2.

            	
              functional
                verification testing; 

            
	
               

            	
               

            	
              3.

            	
              system
                testing;
                and 

            
	
               

            	
               

            	
              4.

            	
              compatibility
                testing. 

            
	
               

            	
              •

            	
              Upon
                Buyer’s
                request, the details of such testing will be mutually agreed to by
                the
                parties. 

            
	
               

            	
              •

            	
              Supplier
                will
                provide to Buyer concurrent with each delivery of a Licensed Work
                all test
                results, test scenarios, test cases, and test reports associated
                with the
                Pre-Delivery Testing. 

            


       

      6.5  Asset
        Protection


      In
        the event that assets are loaned to Supplier and there is no separate
        loan agreement in place between Buyer and Supplier for those assets, Supplier
        will be responsible for risk of loss and for the return of those assets to
        Buyer. 

       

      
        	
                 

              	
                 

              	
                 

              
	
                Licensed
                  and Developed Works Agreement
Statement of Work
                  LDWA_SOW)

              	
                Page
                  5 of 9

              	
                 

              


      


      

      
      


      Licensed
&
Developed
        Works Agreement
Statement of
        Work

       

      Base
        Agreement #4900PC0033
SOW# 4906FL0029


      6.6   
Third
        Party Code
        Warranty 

      Supplier
        represents and warrants on an ongoing basis that, before
        entering into this SOW, Supplier has disclosed to Buyer in writing the existence
        of any third party code, including without limitation open source code and
        freeware, (“Third Party Code”) that is included in or is provided in connection
        with the Deliverables and that Supplier and the Deliverables are in compliance
        with all licensing agreements applicable to such Third Party Code. Supplier
        further represents and warrants on an ongoing basis that, 1) before including
        any Third Party Code in any modifications, new releases, or new versions
        of the
        Deliverables under this SOW, Supplier will disclose to Buyer in writing the
        existence of such Third Party Code and 2) modified Deliverables or new releases
        or new versions of the Deliverables including Third Party Code will be in
        compliance with all licensing agreements applicable to such Third Party Code.
        Supplier will not provide to Buyer any Deliverables or modifications to or
        new
        releases or versions of Deliverables, that include Third Party Code, unless
        Buyer has approved the inclusion of such Third Party Code. 

       

      6.7   
Financial
        Reporting 

      Upon
        Buyer request, Supplier will provide a Dun and Bradstreet report or
        similar report at Supplier’s expense to Buyer. Submission of the Dun and
        Bradstreet report must be initiated through the IBM Global Procurement Supply
        Portal and routed directly from Dun and Bradstreet to Buyer. Supplier will
        be
        responsible for the full cost of the report at the price established by Dun
        and
        Bradstreet, and no rebate, refund or other discount which may be applicable
        to
        Buyer or its Affiliates will apply to the price of the report purchased by
        Supplier. 

       

      7.0 
Quality
        Measurements


      7.1.
  
Supplier
        represents that it has a product
        and service quality program for the Licensed Works that:


      	
               

            	
               

            	
               

            
	
               

            	
              1)

            	
              includes
                performance targets; 

            
	
               

            	
              2)

            	
              includes
                assessment of engineering, development and test processes;
                

            
	
               

            	
              3)

            	
              includes
                configuration and change management processes;
                

            
	
               

            	
              4)

            	
              includes
                assessment of the quality of Deliverables, Products and
                Services; 

            
	
               

            	
              5)

            	
              documents
                non-conformances; and 

            
	
               

            	
              6)

            	
              includes
                processes to correct errors or other non-conformances.
                Supplier will periodically, as negotiated, provide Buyer its standard
                product development life cycle and error metrics. An example of the
                data
                of interest is included in the Attachment entitled “Sample Data Collection
                Form for Supplier”. 

            



      	
               

            	
               

            
	
              7.2

            	
              The
                parties agree that the Attachment entitled “Quality
                Requirements for Commercially Available Software” is hereby incorporated
                by reference into this Agreement. 

            


       

      8.0  
Buyer’s
        Responsibilities


      	
               

            	
               

            	
               

            
	
               

            	
              1.

            	
              Prompt
                Payment
                per the payment terms in section 9.0 

            
	
               

            	
              2.

            	
              Provide
                Project
                Management and other project skills to SCM Releases
                

            


       

      9.0 
Payments


      9.1    
Payment
        Terms 

      The
        terms of payment are net 60 days either after receipt of Supplier’s
        valid invoice or after receipt of the Deliverables or Services, whichever
        is
        later. 

       

      9.2 
        Payment for Licensed Works 

      Buyer
        will pay certain amounts to Supplier when the following milestones
        of the SCM Initiative are achieved. An External Design Document (“EDD”) will be
        produced for each SCM release that defines the functionality that will be
        built
        and delivered for each release, along with the delivery/acceptance dates
        for
        each release. Buyer has sole authority to determine that Deliverables under
        the
        EDD’s are acceptable for delivery: 

       

       

      
        	
                 

              	
                 

              
	
                Licensed
                  and
                  Developed Works Agreement

              	
                Page
                  6 of 9

              
	
                Statement
                  of Work LDWA_SOW) 

              	
                 

              


      


      

      
      


      Licensed
&
Developed
        Works Agreement
Statement of
        Work

       

      Base
        Agreement #4900PC0033
SOW#
        4906FL0029

       

      	
               

            	
               

            	
               

            	
               

            	
               

            
	
               

            	
              Milestones

            	
               

            	
               

            	
              Payment

            
	
               

            	
            	
               

            	
               

            	
            
	
              1.

            	
              Upon
                Supplier’s delivery of the Licensed Work which substantially complies
                with
                its
                specifications, Service Modules, Certificate of Originality, and
Confirmation
                of
                Assignment of Copyright Form

            	
               

            	
               

            	
              $2,500,000

            
	
               

            	
               

            	
               

            	
               

            	
               

            
	
              
                2.

              

            	
              
                Delivery
                  of SCM Release 0

              

            	
               

            	
               

            	
              
                 
*

              

            
	
               

            
	
              3.

            	
              
                Delivery
                  of SCM Release 0.5

              

            	
               

            	
               

            	
               
*

            
	
               

            
	
              4.

            	
              Delivery
                of SCM Release 1.0

            	
               

            	
               

            	
               
*

            
	
               

            
	
               

            	
               

            	
              Total:

            	
               

            	
              $5,000,000

            


       

      
 

      	
               

            	
               

            	
               

            	
               

            
	
              9.3

            	
              Ongoing
                Maintenance Support and
                Fee



            
	
              a.

            	
              At
                Buyer’s option, Supplier programmer resources will be made
                available to maintain the Licensed Works and
                the
                implemented solution as well as provide additional new development
                /
                customizations of the Licensed
                Works
                as required. Ongoing support means:

            
	
               

            	
              •

            	
              7/24
                coverage of production environment;

            
	
               

            	
              •

            	
              Developer
                management and support, and;

            
	
               

            	
              •

            	
              40
                hours a week new development per programmer

            
	
              b.

            	
              Support
                Fee Structure. Payment will be graduated upon the number of
                programmers dedicated to the ongoing maintenance and support described
                above:

            
	
               

            	
               

            	
              •

            	
              *
                per month per programmer for less than 5
                programmers

            
	
               

            	
               

            	
              •

            	
              *
                per month per programmer for greater than 4 and less then 10
                programmers

            
	
               

            	
               

            	
              •

            	
              *
                per month per programmer for 10 or more Supplier programmers or
                support personnel

            


       

      10.0  
Communications
        

      All
        communications between the parties will be carried out through the
        following designated coordinators. All notices required in writing under
        this
        Agreement will be made to the appropriate contact listed below at the following
        addresses and will be effective upon actual receipt. Notices may be transmitted
        electronically, by registered or certified mail, or courier. All notices,
        with
        the exception of legal notices, may also be provided by facsimile. 

       

      
        	
                 

              	
                 

              	
                 

              	
                 

              	
                 

              	
                 

              	
                 

              
	
                Business
                  Coordinators

              	
                 

              	
                 

              	
                 

              	
                 

              
	
                FOR
                  SUPPLIER

              	
                 

              	
                 

              	
                 

              	
                FOR
                  BUYER

              	
                 

              	
                 

              
	
                Name

              	
                 

              	
                Mike
                  Feder

              	
                 

              	
                Name

              	
                 

              	
                Mark
                  Carey

              
	
                Title

              	
                 

              	
                President

              	
                 

              	
                Title

              	
                 

              	
                SCM
                  Project Executive

              
	
                Address

              	
                 

              	
                400
                  Royal Palm Way
Suite 410
Palm Beach, FL 33480

              	
                 

              	
                Address

              	
                 

              	
                3039
                  Cornwallis Rd
RTP, NC 27709

              
	
                Phone

              	
                 

              	
                561-805-8028

              	
                 

              	
                Phone

              	
                 

              	
                919-543-3540

              
	
                Fax

              	
                 

              	
                 

              	
                 

              	
                Fax

              	
                 

              	
                919-486-2768

              
	
                E-mail

              	
                 

              	
                mfeder@adsx.com

              	
                 

              	
                E-mail

              	
                 

              	
                mcarey@us.ibm.com

              


      


      
        	
                 

              	
                 

              	
                 

              	
                 

              	
                 

              	
                 

              	
                 

              
	
                Legal
                  Coordinators

              	
                 

              	
                 

              	
                 

              	
                 

              
	
                FOR
                  SUPPLIER

              	
                 

              	
                 

              	
                 

              	
                FOR
                  BUYER

              	
                 

              	
                 

              
	
                Name

              	
                 

              	
                Michael
                  Krawitz

              	
                 

              	
                Name

              	
                 

              	
                Ron
                  Leviner

              
	
                Title

              	
                 

              	
                Executive
                  VP, General Counsel

              	
                 

              	
                Title

              	
                 

              	
                Staff
                  Attorney

              
	
                Address

              	
                 

              	
                400
                  Royal Palm Way
Suite 410
Palm Beach, FL 33480

              	
                 

              	
                Address

              	
                 

              	
                294
                  ROUTE 100 SOMERS, NY 10589

              
	
                Phone

              	
                 

              	
                561-805-8005

              	
                 

              	
                Phone

              	
                 

              	
                914-766-4562

              


      

       

      *
        Confidential Treatment Requested

       

      
        	
                 

              	
                 

              
	
                Licensed
                  and Developed Works Agreement
Statement of Work
                  LDWA_SOW)

              	
                Page
                  7 of 9

              


      


      

      
      


      Licensed
&
Developed
        Works Agreement
Statement of
        Work

       

      Base
        Agreement #4900PC0033
SOW# 4906FL0029


      
        	
                 

              	
                 

              	
                 

              	
                 

              	
                 

              	
                 

              	
                 

              
	
                Fax

              	
                 

              	
                 

              	
                 

              	
                Fax
                  (Fax notice shall be valid only when verbal confirmation of receipt
                  is
                  obtained.)

              	
                 

              	
                 

              
	
                E-mail

              	
                 

              	
                mkrawitz@adsx.com

              	
                 

              	
                E-mail

              	
                 

              	
                rleviner@us.ibm.com

              
	
                 

              	
                 

              	
                 

              	
                 

              	
                 

              	
                 

              	
                 

              
	
                Technical
                  Coordinators

              	
                 

              	
                 

              	
                 

              	
                 

              
	
                FOR
                  SUPPLIER

              	
                 

              	
                FOR
                  BUYER

              	
                 

              	
                 

              
	
                Name

              	
                 

              	
                David
                  Dorret

              	
                 

              	
                Name

              	
                 

              	
                David
                  Nusbaum

              
	
                Title

              	
                 

              	
                Chief
                  Technology Officer

              	
                 

              	
                Title

              	
                 

              	
                SCM
                  Architect

              
	
                Address

              	
                 

              	
                180
                  South Prospect
Suite 250
Tustin, CA 92780

              	
                 

              	
                Address

              	
                 

              	
                3605
                  HWY 52 N
ROCHESTER MN 55901

              
	
                Phone

              	
                 

              	
                (714)
                  832-2200 ext 52

              	
                 

              	
                Phone

              	
                 

              	
                507-286-6323

              
	
                Fax

              	
                 

              	
                 

              	
                 

              	
                Fax

              	
                 

              	
                507-253-0389

              
	
                E-mail

              	
                 

              	
                david.dorret@PDSC.COM

              	
                 

              	
                E-mail

              	
                 

              	
                nusbaum@us.ibm.com

              


      

       

      11.0  
Electronic
        Commerce


      Unless
        previously submitted by Supplier, in order to initiate electronic
        transfer of payments associated with this SOW, Supplier will complete the
        attached form entitled “Authorization for Electronic Funds Transfer” and fax the
        completed form to Accounts Payable at the number included on the form.


       

      12.0  
Additional
        Provisions


      The
        following are additional provisions that modify the referenced
        Sections of the Base Agreement as follows: 

       

      Section
        1.0 – Definitions – Add the following
        definitions: 

      “Electronic
        Self-Help” means a process where Supplier
        electronically disables, removes, or otherwise prevents the use of its software
        product without the Buyer’s or Buyer’s Customer’s cooperation or consent.
        Electronic Self-Help could be done through electronic or other means (for
        example: remotely through “back doors” or hidden entrances in the software or
        through hidden shut-down commands in the software that can be activated by
        phone
        or in other ways). 

       

      “Taxes”
        means any and all applicable taxes, charges,
        fees, levies or other assessments imposed or collected by any governmental
        entity worldwide or any political subdivision thereof and however designated
        or
        levied on sales of Deliverables or Services, or sales, use, transfer, goods
        and
        services or value added tax or any other duties or fees related to any payment
        made by Buyer to Supplier for Deliverables and/or Services provided by Supplier
        to Buyer under or pursuant to this Agreement; exclusive, however, of any
        taxes
        imposed upon the net income or capital of Supplier, any taxes in lieu of
        such
        net income taxes and any other taxes which are to be borne by Supplier under
        law. 

       

      Section
        7.0 – Ongoing Warranties – Add the following
        ongoing representations and warranties: Supplier makes the following ongoing
        representations and warranties: 

      	
               

            	
               

            
	
              •

            	
              Supplier
                will
                not engage in Electronic Self-Help; 

            
	
              •

            	
              Deliverables
                and
                Services which interact in any capacity with monetary data are euro
                ready
                such that when used in accordance with their associated documentation
                they
                are capable of correctly processing monetary data in the euro denomination
                and respecting the euro currency formatting conventions (including
                the
                euro sign); 

            
	
              •

            	
              Supplier
                is
                knowledgeable with, and is and will remain in full compliance with
                all
                applicable export and import laws, regulations, orders, and policies
                (including, but not limited to, securing all necessary clearance
                requirements, export and import licenses and exemptions from, and
                making
                all proper filings with appropriate governmental bodies and/or disclosures
                relating to the release or transfer of technology and software to
                non U.S.
                nationals in the U.S., or outside the U.S., release or transfer of
                technology and software having U.S. content or derived from U.S.-origin
                software or technology); it is knowledgeable with
                

            



      
        	
                 

              	
                 

              
	
                Licensed
                  and
                  Developed Works Agreement 
Statement of Work LDWA_SOW)

              	
                Page
                  8 of 9

              


      


      

      
      


      Licensed
&
Developed
        Works Agreement
Statement of
        Work

       

      Base
        Agreement #4900PC0033
SOW# 4906FL0029


      	
               

            	
               

            
	
               

            	
              applicable
                supply chain security recommendations issued by applicable governments
                and
                industry standards organizations and will make best efforts to comply
                with
                such recommendations; 

            
	
              •

            	
              Unless
                authorized by applicable government license or regulation, including
                but
                not limited to any U.S. authorization, Supplier will not directly
                or
                indirectly export or reexport, at any time, any technical information,
                technology, software, or other commodity furnished or developed under
                this, or any other, agreement between the parties, or any other product
                that is developed or produced from or using Buyer’s technical information,
                technology, software, or other commodity provided under this Agreement
                to
                any prohibited country (including release of such technical information,
                technology, software, or other commodity to nationals, wherever they
                may
                be located, of any prohibited country) as specified in applicable
                export,
                embargo, and sanctions regulations; 

            
	
              •

            	
              Supplier
                will
                not use, disclose, or transfer across borders any information that
                is
                processed for Buyer that may identify an individual (Personal Data),
                except to the extent necessary to perform under this Agreement; and
                

            
	
              •

            	
              Supplier
                will
                comply with all applicable data privacy laws and regulations, will
                implement and maintain appropriate technical and other protections
                for the
                Personal Data, will report any breaches of protection of Personal
                Data,
                and will cooperate fully with Buyer’s requests for access to, correction
                of, and destruction of Personal Data in Supplier’s possession.
                

            


       

      Section
        11.0 – Limitation of Liability – Add the
        following: 

      In
        no event will either party be liable for the respective actions or
        omissions of its Affiliates under this Agreement. 

       

      Supplier
        acknowledges and agrees that all WA’s or PA’s issued by Buyer’s
        Affiliate(s) are independent agreements between Supplier or Supplier Affiliate
        and the Buyer Affiliate. Buyer shall not be liable to Supplier or Supplier
        Affiliate(s) for any actions or inactions of any Buyer Affiliate(s) under
        a WA
        or PA, nor shall any actions or inactions by Buyer’s Affiliate(s) constitute a
        breach of the Agreement between Buyer and Supplier. 

       

      Section
        14.0 – General – Add the following:


      Supplier
        will be familiar and will strictly comply with all laws and
        regulations on bribery, corruption, and prohibited business practices. Supplier
        and its Affiliates have not and will not offer, promise or make or agree
        to make
        any payments or gifts (of money or anything of value) directly or indirectly
        to
        anyone for the purpose of influencing, or inducing anyone to influence decisions
        in favor of, Buyer or any of its Affiliates. 

       

      	
               

            	
               

            	
               

            	
               

            	
               

            
	
              ACCEPTED
                AND AGREED TO:

            	
              ACCEPTED
                AND AGREED TO:

            
	
              International
                Business Machines Corp.

            	
              Pacific
                Decision Sciences Corporation

            
	
              By:

               

              /s/ Howard Nicholas

            	
              5/10/06

            	
               

            	
              By:

/s/
                David Englund

            	
              5/9/06

            
	
              Buyer
                Signature

            	
              Date

            	
               

            	
              Supplier
                Signature

            	
              Date

            
	
               

            	
               

            	
               

            	
               

            	
               

            
	
              Howard
                Nicholas

            	
               

            	
               

            	
              David
                Englund

            	
               

            
	
              Printed
                Name

            	
               

            	
               

            	
              Printed
                Name

            	
               

            
	
              Enterprise
                Software Procurement Relationship
Manager – IBM Global
                Procurement

            	
              Executive
                Vice President

              Pacific
                Decision Sciences Corporation

            	
               

            
	
              Title
&
                Organization



            	
               

            	
               

            	
              Title
&
                Organization

            	
               

            
	
              Buyer
                Address:

            	
               

            	
               

            	
              Supplier
                Address:

            	
               

            
	
              11400
                Burnet
                Road

            	
               

            	
               

            	
              180
                South
                Prospect

            	
               

            
	
              Austin,
                TX
                78758

            	
               

            	
               

            	
              Suite
                250

            	
               

            
	
               

            	
               

            	
               

            	
              Tustin,
                CA
                92780

            	
               

            


       

      
 

      
        	
                 

              	
                 

              
	
                Licensed
                  and
                  Developed Works Agreement

              	
                Page
                  9 of
                  9

              
	
                Statement
                  of
                  Work LDWA_SOW)