Unassociated Document


    
      
        
          

        

      

       

      Exhibit
        10.3

      
 

      	
               

            
	
              LICENSED
                AND DEVELOPED WORKS
                AGREEMENT

            
	
              AGREEMENT
                #PDSC-99-1146

            


       

       

      This
        Agreement dated as of April 1, 1999 (“Effective Date”),
        between International Business Machines Corporation, a New York corporation,
        having a place of business at 6300 Diagonal Highway, Boulder, Colorado 80301
        (“Buyer”) and Pacific Decision Sciences Corporation, a
        California corporation, having a place of business at 12341 Newport Avenue,
        Suite C100, Santa Ana, California 92705 (“Supplier”),
        establishes the basis for a multinational procurement relationship under
        which
        Supplier will provide Buyer the Deliverables and Services described in SOWs
        issued under this Agreement. 

       

      1.0
        Definitions:

      “Affiliates”
means
        entities that control, are controlled
        by, or are under common control with a party to this Agreement. 

      “Agreement”
means
        this agreement and any relevant
        statements of Work (“SOW”), Work Authorizations
        (“WA”), Participation Attachments (“PA”), and
        other attachments or appendices specifically referenced in this Agreement.
        

      “Appearance
        Design” means the appearance presented by an
        object, formed in hardware or by software, that creates a visual impression
        on
        an observer. Appearance Design refers to the ornamental and not the functional
        aspects of the object. 

      “Buyer”
means
        either IBM or one of its Affiliates which
        has signed a PA. 

      “Buyer
        Personnel” means agents, employees or contractors
        engaged by Buyer. 

      “Code”
means
        computer programming code, including both
“Object Code” (computer programming code substantially in
        binary form that is directly executable by a computer after processing, but
        without compilation, or assembly) and “Source Code” (computer
        programming code that may be displayed in a form readable and understandable
        by
        a programmer of ordinary skill, excluding Object Code). 

      “Deliverable”
means
        any item that Supplier prepares for
        or provides to Buyer as described in a SOW, Deliverables include Developed
        Works, Licensed Works, Preexisting Materials, and Tools. 

      “Derivative
        Work” means a work that is based on an
        underlying work and that would be a copyright infringement if prepared without
        the authorization of the copyright owner of the underlying work. 

      “Developed
        Works” means Deliverables including their
        Externals, developed in the performance of this Agreement that Buyer will
        own,
        and does not include Licensed Works, Preexisting Materials, Tools, or items
        specifically excluded in a SOW. 

      “Enhancements”
means
        changes or additions, other than
        Error Corrections, to the Licensed Work. If an Enhancement adds substantial
        value to the Licensed Work and is offered to customers for an additional
        charge
        it will be considered a “Major Enhancement”, and all other
        Enhancements, including those that support new releases of operating systems
        and
        devices, will be considered “Basic Enhancements”. 

      “Error
        Corrections” means revisions that correct errors
        and deficiencies (collectively referred to as “errors”) in the Licensed Work.


      “Externals”
means
        any pictorial, graphic, or audiovisual
        works generated by execution of code and any programming interfaces, languages
        or protocols implemented in code to enable interaction with other computer
        programs or end users. Externals do not include the code that implements
        them.


      “Invention”
means
        any ideas, designs, concepts,
        techniques, inventions, discoveries or improvements, whether or not patentable,
        conceived or reduced to practice by Supplier or Supplier Personnel in
        performance of this Agreement 
“Joint Inventions” means
        Inventions made by Supplier or Supplier Personnel with Buyer Personnel.


      “Licensed
        Work” is any material described in or that
        conforms to the Description of Licensed Work in the relevant SOW and includes
        Code, associated documentation, Externals, Error Corrections, and Enhancements.
        

      “Participation
        Attachment” or “PA”
means an agreement signed by an Affiliate or Affiliates
        which
        incorporates by reference the terms and conditions in this agreement, any
        relevant SOW, and other attachments or appendices specifically referenced
        in the
        PA. 

      “Preexisting
        Materials” means items including their
        Externals, contained within a Deliverable, in which the copyrights are owned
        by
        a third party or that Supplier prepared or had prepared outside the scope
        of
        this Agreement. Preexisting Materials exclude Tools, but may include material
        that is created by the use of Tools. 

      “Prices”
means
        the agreed upon payments and currency for
        Deliverables and Services, including all applicable fees, royalty payments
        and
        taxes, as specified in the relevant SOW. 

      “Products”
means
        an offering to customers or other
        users, whether or not branded by Buyer or its Affiliates, that includes the
        Licensed Work or a Derivative Work of a Licensed Work. 

      “Services”
means
        work that Supplier performs for Buyer
        as described in a SOW. 

      “Statement
        of Work” or “SOW” means any
        document attached to or included in this Agreement which describes the
        Deliverables and Services, including any requirements, specifications or
        schedules. 

      “Supplier”
means
        either Supplier or one of its
        Affiliates which has signed a PA. 

      “Supplier
        Personnel” means agents, employees or
        subcontractors engaged by Supplier. 

      “Tools”
means
        not commercially available software, and
        their Externals, required for the development, maintenance or implementation
        of
        a software Deliverable. 

       

       

      
        	
                 

              	
                 

              	
                 

              
	
                

              
	
                Licensed
                  & Developed Works Agreement #PDSC-99-1146 
LDWAR3 (03/30/99)
                  Modified

              	
                 1
                  of 7

              	
                Form
                  Release: 8/98
Revision: 2/99

              


      


      

      
      


      	
               

            
	
              LICENSED
                AND DEVELOPED WORKS
                AGREEMENT

            
	
              AGREEMENT
                #PDSC-99-1146

            


       

      “Work
        Authorization” or “WA” means
        Buyer’s authorization in either electronic or tangible form for Supplier to
        conduct transactions under this Agreement (i.e., a purchase order, bill of
        lading, or other Buyer designated document). A SOW is a WA only if designated
        as
        such in writing by Buyer. 

       

      2.0  Statement
        of Work

       

      2.1
        Licensed Works

      Supplier
        will deliver to Buyer: (i) one complete copy of the Licensed Work described
        in
        the relevant SOW; (ii) a completed Certificate of Originality in the form
        specified in the SOW with the Licensed Work and with each Enhancement to
        the
        Licensed Work; (iii) complete copies of all Tools, including updates to Tools
        as
        soon as practicable; and (iv) a complete list of all commercially available
        software required for the development, maintenance or implementation of a
        software Deliverable, including updates to the list as soon as
        practicable.

       

      2.2
        Additional Deliverables

      Supplier
        will provide the Deliverables and Services as specified in the relevant SOW
        only
        when specified in a WA. Supplier will begin work only after receiving written
        authorization from Buyer. Buyer may request changes to a SOW and Supplier
        will
        submit to Buyer the impact of such changes. Changes accepted by Buyer will
        be
        specified in an amended SOW or change order signed by both parties.

       

      2.3
        Enhancements and Error
        Corrections

      Supplier
        will provide to Buyer, at no charge, Basic Enhancements and Error Corrections
        for the Licensed Work beginning when Buyer accepts the Licensed Work and
        continuing for the Error Correction Warranty Period identified in the SOW.
        Supplier will also provide to Buyer, at no charge, Major Enhancements to
        the
        Licenced Work beginning when Buyer accepts the Licensed Work and continuing
        for
        the Major Enhancements Warranty Period identified in the SOW. After that
        period,
        Supplier will offer to Buyer within sixty (60) days of availability Major
        Enhancements to the Licensed Work that Supplier creates or authorizes others
        to
        create at terms no less favorable than those offered to Supplier’s most favored
        customers. If Buyer accepts Supplier’s offer, Buyer will amend the relevant SOW
        to include such charges, terms and conditions, and the Major Enhancements
        will
        become part of the Licensed Work.

       

      3.0
        Term and
        Termination

       

      3.1
        Term

      Deliverables
        and Services acquired by Buyer on or after the Effective
        Date will be covered by this Agreement. This Agreement will remain in effect
        until terminated.

       

      3.2
        Termination of this Agreement

      Either
        party may terminate this Agreement, without any cancellation charge, for
        a
        material breach of the Agreement by the other party or if the other party
        becomes insolvent or files or has filed against it a petition in bankruptcy
        (“Cause”), to the extent permitted by law. Such termination will be effective at
        the end of a thirty (30) day written notice period if the Cause remains uncured.
        Either party may terminate this Agreement without Cause when there are no
        outstanding SOWs or WAs.

       

      3.3
        Termination of a SOW or WA

      Buyer
        may
        terminate a SOW or a WA with or without Cause. Upon termination, in accordance
        with Buyer’s written direction, Supplier will immediately: (i) cease work; (ii)
        prepare and submit to Buyer an itemization of all completed and partially
        completed Deliverables and Services: (iii) deliver to Buyer Deliverables
        satisfactorily completed up to the date of termination at the agreed upon
        Prices
        in the relevant SOW; and (iv) deliver upon request any work in process. In
        the
        event Buyer terminates without Cause, Buyer will compensate Supplier for
        the
        actual and reasonable expenses incurred by Supplier for work in process up
        to
        and including the date of termination, provided such expenses do not exceed
        the
        Prices.

       

      3.4
        Effect of Termination

      Termination
        of this Agreement or a SOW will not affect any licenses granted in the Licensed
        Work or Tools delivered or due to Buyer prior to the effective date of
        termination or Supplier’s obligation to provide Basic Enhancements and Error
        Corrections. In the event of termination for Cause, Buyer will not be obligated
        to make any payments due on or after the effective date of termination, other
        than royalty payments incurred, if any.

       

      4.0
        Pricing 

      Supplier
        will provide Deliverables and Services to Buyer for the Prices. Except for
        pre-approved expenses specified in the

       

      
        	
                 

              	
                 

              	
                 

              
	
                

              
	
                Licensed
                  & Developed Works Agreement #PDSC-99-1146 
LDWAR3 (03/30/99)
                  Modified

              	
                 2
                  of
                  7

              	
                Form
                  Release: 8/98
Revision: 2/99

              


      


      

      
      


      	
               

            
	
              LICENSED
                AND DEVELOPED WORKS
                AGREEMENT

            
	
              AGREEMENT
                # PDSC
                -99-1146

            


       

      relevant
        SOW, the Prices for Deliverables and Services specified in a WA and accepted
        by
        Buyer will be the only amount due to Supplier from Buyer.

       

      5.0 Payments
        and Acceptance

       

      5.1
        Acceptance

      Payment
        of
        royalties or invoices will not be deemed acceptance of Deliverables or Services,
        but rather such Deliverables or Services will be subject to inspection, test
        and
        rejection in accordance with the acceptance or completion criteria as specified
        in the relevant SOW. Buyer may, at its option, either reject Deliverables
        or
        Services that do not comply with the acceptance or completion criteria for
        a
        refund, or require Supplier, upon Buyer’s written instruction, to repair or
        replace such Deliverables or re-perfom such Services, without charge and
        in a
        timely manner.

       

      5.2
        Royalty Payments

      Royalties
        for Licensed Works will be specified in the relevant SOW. Buyer may suspend
        payments to Supplier for a Licensed Work if Supplier does not provide a properly
        completed Certificate of Originality. Payment will resume upon Buyer’s receipt
        of an acceptable Certificate. If Supplier fails to perform any of its
        obligations, Buyer may reduce any amounts due Supplier by an amount equal
        to the
        value not received, or have Supplier reimburse Buyer for the value not
        received.

       

      5.3
Royalty
        Calculations

      Royalties,
        if any, are paid against revenue recorded by Buyer for a royalty payment
        quarter. Payment will be made by the last day of the second calendar month
        following the royalty payment quarter. All payments will be made in U.S.
        dollars. Payments based on foreign revenue will be converted to U.S. dollars
        on
        a monthly basis at the rate of exchange published by Reuters Financial Service
        on approximately the same day each month. Terms for payment of any non-royalty
        payments will be specified in the relevant SOW or WA.

       

      5.4
        Exceptions to Royalty Payment
        Obligations

      Buyer
        has
        no royalty obligation for: (a) the Licensed Work or its Derivative Works
        used
        for: (i) Buyer’s or Buyer Personnel’s internal use; (ii) development,
        maintenance or support activities conducted by Buyer or Buyer Personnel;
        (iii)
        marketing demonstrations, customer testing or trial periods (including early
        support, prerelease, encrypted or locked sampler distributions not resulting
        in
        a license for full productive use, or other similar programs), Product training
        or education; or (iv) backup and archival purposes; (b) a copy of the Product
        installed by a licensed end user on an alternate work station (e.g., home
        terminal or laptop), provided the end user may not use the Product on both
        work
        stations at the same time; (c) the Licensed Work (or a functionally equivalent
        work) that becomes available generally to third parties without a payment
        obligation; (d) documentation provided with, contained in, or derived from
        the
        Licensed Work; (e) Error Corrections or Basic Enhancements; (f) warranty
        replacement copies of the Product; and (g) Externals.

       

      6.0
        Electronic Commerce

       

      The
        parties
        will conduct transactions using an electronic commerce approach under which
        the
        parties will electronically transmit and receive legally binding purchase
        and
        sale obligations (“Documents”), including electronic credit entries transmitted
        by Buyer to the Supplier account specified in the relevant SOW. Each party,
        at
        its own expense, will provide and maintain the equipment, software, services
        and
        testing necessary for it to effectively and reliably transmit and receive
        such
        Documents. Either party may use a third party services provider for network
        services, provided the other party is given sixty (60) days prior written
        notice
        of any changes to such services. A Document will be deemed received upon
        arrival
        at the receiving party’s mailbox or Internet address and the receiving party
        will promptly send an acknowledgment of such receipt. The receiving party
        will
        promptly notify the originating party if a Document is received in an
        unintelligible form, provided that the originating party can be identified.
        In
        the absence of such notice, the originating party’s record of the contents of
        such Document will prevail. Each party will authenticate Documents using
        a
        digital signature or User ID, as specified by Buyer, and will maintain security
        procedures to prevent its unauthorized use.

       

      7.0
        Ongoing Warranties

       

      Supplier
        makes the following ongoing representations and warranties: (i) it has the
        right
        to enter into this Agreement and its performance of this Agreement will not
        violate the terms of any contract, obligation, law, regulation or ordinance
        to
        which it is or becomes subject; (ii) no claim, lien, or action exists or
        is
        threatened against Supplier that would interfere with Buyer’s rights under this
        Agreement; (iii) Deliverables are safe for any use consistent with and will
        comply with the warranties, specifications and requirements in this Agreement;
        (iv) Services will be performed using reasonable care and skill and in
        accordance with the

       

      
        	
                 

              	
                 

              	
                 

              
	
                

              	
                

              	
                

              
	
                Licensed
                  & Developed Works Agreement # PDSC-99-1146

                
                  LDWAR3
                    (03/30/99) Modified

                

              	
                3
                  of
                  7

              	
                Form
                  Release: 8/98
Revision: 2/99

              
	
                 

              	
                 

              	
                 

              


      


      

      
      



      	
               

            
	
              LICENSED
                AND DEVELOPED WORKS
                AGREEMENT

            
	
              AGREEMENT
                #
                PDSC-99-1146

            


       

      relevant
        SOW; (v) Deliverables and Services which interact in any capacity with date
        data
        are Year 2000 ready such that when used in accordance with their associated
        documentation they are capable of correctly processing, providing, receiving
        and
        displaying date data, as well as exchanging accurate date data with all products
        with which the Deliverables or Services are intended to be used within and
        between the twentieth and twenty-first centuries; vi) Deliverables will be
        tested for, and do not contain, harmful code; (vii) Deliverables and Services
        do
        not infringe any privacy, publicity, reputation or intellectual property
        right
        of a third party; and (viii) all authors have agreed not to assert their
        moral
        rights (personal rights associated with authorship of a work under applicable
        law) in the Deliverables, to the extent permitted by law.
THE
        WARRANTIES AND CONDITIONS IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES
        AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THOSE WARRANTIES OR CONDITIONS
        OF
        MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.

       

      8.0
        Delivery

       

      Deliverables
        or Services will be delivered as specified in the relevant
        SOW. If Supplier cannot comply with a delivery commitment, Supplier will
        promptly notify Buyer of a revised delivery date and Buyer may: (i) cancel
        without charge Deliverables or Services not yet delivered; (ii) procure such
        Deliverables or Services elsewhere and charge Supplier the cost differential;
        and (iii) exercise all other remedies provided at law, in equity and in this
        Agreement.

       

      9.0
        Intellectual Property

       

      9.1
        Licensed
        Works

      Supplier
        grants Buyer the rights in the Licensed Works as specified in the relevant
        SOW.
        Subject to Supplier’s ownership of the Licensed Work and Tools, Buyer will own
        any Derivative Works it creates.

       

      9.2
        Work Made for
        Hire

      All
        Developed Works belong exclusively to Buyer and are works made for hire.
        If any
        Developed Works are not considered works made for hire owned by Buyer by
        operation of law, Supplier assigns the ownership of copyrights in such works
        to
        Buyer.

       

      9.3
        Preexisting
        Materials

      Supplier
        will not include any Preexisting Materials in any Deliverable other than a
        Licensed Work unless they are listed in the relevant SOW. Supplier grants
        Buyer
        a nonexclusive, worldwide, perpetual, irrevocable, paid-up, license to prepare
        and have prepared Derivative Works of Preexisting Materials and to use, have
        used, execute, reproduce, transmit, display, perform, transfer, distribute,
        and
        sublicense Preexisting Materials or their Derivative Works, and to grant
        others
        the rights granted in this Subsection.

       

      9.4
        Tools

      Supplier
        will not include Tools in Deliverables unless they are listed in the relevant
        SOW. Supplier grants Buyer a nonexclusive, worldwide, perpetual, irrevocable,
        paid-up, license to prepare and have prepared Derivative Works of Tools,
        and to
        use, have used, execute, reproduce, transmit, display and perform Tools or
        their
        Derivative Works.

       

      9.5
        Invention
        Rights

      Supplier
        will promptly provide to Buyer a complete written disclosure for each Invention
        which identifies the features or concepts which Supplier believes to be new
        or
        different. Inventions are owned by Supplier, except for Joint Inventions
        and
        Inventions relating to an Appearance Design. Supplier grants to Buyer an
        irrevocable, nonexclusive, worldwide, perpetual paid-up
        license under these Inventions (including any patent applications filed on
        or
        patents issued claiming Inventions). The license scope is to make, have made,
        use, have used, sell, license or transfer items and to practice and have
        practiced methods. Supplier assigns to Buyer all Inventions, and patents
        issuing
        on them, relating to an Appearance Design. 

       

      9.6
        Joint Invention
        Rights

      The
        parties
        will jointly own all Joint Inventions and resulting patents. Either party
        may
        license others under Joint Inventions (including any patent applications
        filed
        on or patents issued claiming Joint Inventions) without accounting to or
        consent
        from the other. 

       

      9.7
        Perfection of
        Copyrights

      Upon
        request, Supplier will provide to Buyer a “Certificate of Originality” or
        equivalent documentation to verify authorship of Deliverables. Supplier will
        confirm assignment of copyright for Developed Works using the “Confirmation of
        Assignment of Copyright” form and will assist Buyer in perfecting such
        copyrights. Supplier will be responsible for registration, maintenance and
        enforcement of copyrights for Licensed Works and Preexisting Materials. If
        Supplier does not register a copyright in 

       

      
        	
                 

              	
                 

              	
                 

              
	
                

              	
                

              	
                

              
	
                Licensed
                  & Developed Works Agreement # PDSC-99-1146

                
                  LDWAR3
                    (03/30/99) Modified

                

              	
                4
                  of
                  7

              	
                Form
                  Release: 8/98
Revision: 2/99

              
	
                 

              	
                 

              	
                 

              


      


      

      
      


      LICENSED
        AND DEVELOPED WORKS AGREEMENT

      AGREEMENT
        #PDSC-99-1146

       

      Licensed
        Works or Preexisting Materials, Supplier authorizes Buyer to act as its agent
        in
        the copyright registration of such Licensed Works or Preexisting Materials.
        

       

      9.8
        Perfection of Invention Rights

      Supplier
        will identify all countries in which it will seek patent protection for each
        Invention. Supplier authorizes Buyer to act as its agent in obtaining patent
        protection for the Inventions in countries where Supplier does not seek patent
        protection. Supplier will, at Buyer’s expense, assist in the filing of patent
        applications on Inventions and have required documents signed.

       

      9.9
        Names and Trademarks

      Except
        to
        the extent permitted by local law, neither party shall have the right to
        use the
        trademarks, trade names or logos of the other party in connection with any
        product, promotion or publication without the prior written approval of the
        other party.

       

      10.0
        Indemnification

       

      10.1
        General Indemnification

      Supplier
        will defend, hold harmless and indemnify, including attorney’s fees, Buyer and
        Buyer Personnel against claims that arise or are alleged to have arisen as
        a
        result of negligent or intentional acts or omissions of Supplier or Supplier
        Personnel or breach by Supplier of any term of this Agreement. 

       

      10.2
        Intellectual Property
        Indemnification

      Supplier
        will defend, or at Buyer’s option cooperate in the defense of, hold harmless and
        indemnify, including attorney’s fees, Buyer and Buyer Personnel from claims that
        Supplier’s Deliverables or Services infringe the intellectual property rights of
        a third party. If such a claim is or is likely to be made, Supplier will,
        at its
        own expense, exercise the first of the following remedies that is practicable:
        (i) obtain for Buyer the right to continue to use, sell and license the
        Deliverables and Services consistent with this Agreement; (ii) modify
        Deliverables and Services so they are non-infringing and in compliance with
        this
        Agreement; (iii) replace the Deliverables and Services with non-infringing
        ones
        that comply with this Agreement; or (iv) at Buyer’s request, accept the
        cancellation of infringing Services and the return of infringing Deliverables
        and refund any amount paid. 

       

      10.3
        Exceptions to Indemnification

      Supplier
        will have no obligation to indemnify Buyer or Buyer Personnel for claims
        that
        Supplier’s Deliverables or Services infringe the intellectual property rights of
        a third party to the extent such claims arise as a result of Supplier’s
        implementation of a Buyer originated design or Buyer’s modification of the
        Deliverables.

       

      11.0
        Limitation of Liability

      In
        no event
        will Buyer be liable to Supplier for any lost revenues, lost profits,
        incidental, indirect, consequential, special or punitive damages. 

       

      12.0
        Supplier and Supplier Personnel

       

      Supplier
        is
        an independent contractor and this Agreement does not create an agency
        relationship between Buyer and Supplier or Buyer and Supplier Personnel.
        Buyer
        assumes no liability or responsibility for Supplier Personnel. Supplier will:
        (i) ensure it and Supplier Personnel are in compliance with all laws,
        regulations, ordinances, and licensing requirements; (ii) be responsible
        for the
        supervision, control, compensation, withholdings, health and safety of Supplier
        Personnel; (iii) ensure Supplier Personnel performing Services on Buyer’s
        premises comply with the On Premises Guidelines; and (iv) inform Buyer if
        a
        former employee of Buyer will be assigned work under this Agreement, such
        assignment subject to Buyer approval.

       

      13.0
        Insurance

       

      Supplier
        will maintain at its expense: (i) comprehensive general or public liability
        insurance with a minimum limit per occurrence or accident of $1,000,000 (or
        local currency equivalent); (ii) workers’ compensation or employer’s liability
        as required by local law, such policies waiving any subrogation rights against
        Buyer; and (iii) automobile liability insurance as required by local statute
        but
        not less than $1,000,000 (or local currency equivalent) if a vehicle will
        be
        used in the performance of this Agreement. Insurance required under this
        Subsection will name Buyer as an additional insured with respect to Buyer’s
        insurable interest, will be primary or non-contributory regarding insured
        damages or expenses, and will be purchased from insurers of sound
        internationally recognized financial standing.

       

      
        	
                 

              	
                 

              	
                 

              
	
                

              	
                

              	
                

              
	
                Licensed
                  & Developed Works Agreement #PDSC-99-1146
LDWAR3 (03/30/99)
                  Modified

              	
                5
                  of
                  7

              	
                Form
                  Release: 8/98
Revision: 2/99

              


      


      

      
      


      LICENSED
        AND DEVELOPED WORKS AGREEMENT

      AGREEMENT
        #PDSC-99-1146

       

      14.0
        General

       

      14.1
        Amendments

      This
        Agreement may only be amended by a writing specifically referencing this
        Agreement which has been signed by authorized representatives of the parties.
        

       

      14.2
        Assignment

      Neither
        party will assign their rights or delegate or subcontract their duties under
        this Agreement to third parties or affiliates without the prior written consent
        of the other party, such consent not to be withheld unreasonably, except
        that
        Buyer may assign this Agreement in conjunction with the sale of a substantial
        of
        its business utilizing this Agreement. Any unauthorized assignment of this
        Agreement is void. 

       

      14.3
        Choice of Law and Forum; Waiver of Jury Trial; Limitation
        of Action

      This
        Agreement and the performance of transactions under this Agreement will be
        governed by the laws of the country where the Buyer entering into the relevant
        Agreement or PA is located, except that the laws of the State of New York
        applicable to contracts executed in and performed entirely within that State
        will apply if any part of the transaction is performed within the United
        States.
        The parties expressly waive any right to a jury trial regarding disputes
        related
        to this Agreement. Unless otherwise provided by local law without the
        possibility of contractual waiver or limitation, any legal or other action
        related to a breach of this Agreement must be commenced no later than two
        (2)
        years from the date on which the cause of action arose. 

       

      14.4
        Communications

      All
        communications between the parties regarding this Agreement will be conducted
        through the parties’ representatives as specified in the relevant SOW.


       

      14.5
        Counterparts

      This
        Agreement may be signed in one or more counterparts, each of which will be
        deemed to be an original and all of which when taken together will constitute
        the same agreement. Any copy of this Agreement made by reliable means is
        considered an original. 

       

      14.6
        Exchange of Information

      Unless
        required otherwise by law, all information exchanged by the parties will
        be
        considered non-confidential. If the parties require the exchange of confidential
        information, such exchange will be made under a confidentiality agreement.
        The
        parties will not publicize the terms or conditions of this Agreement in any
        advertising, marketing or promotional materials except as may be required
        by
        law, provided the party publicizing obtains any confidentiality treatment
        available. Supplier will use information regarding this Agreement only in
        the
        performance of this Agreement. For any business personal information relating
        to
        Supplier Personnel that Supplier provides to Buyer, Supplier has obtained
        the
        agreement of the Supplier Personnel to release the information to Buyer and
        to
        allow Buyer to use such information in connection with this Agreement.


       

      14.7
        Freedom of Action

      This
        Agreement is nonexclusive and either party may design, develop, manufacture,
        acquire or market competitive products or services. Buyer will independently
        establish prices for resale of Deliverables or Services and is not obligated
        to
        announce or market any Products or Services and does not guarantee the success
        of its marketing efforts, if any.

       

      14.8
        Force Majeure

      Neither
        party will be in default or liable for any delay or failure to comply with
        this
        Agreement due to any act beyond the control of the affected party, excluding
        labor disputes, provided such party immediately notifies the other.

       

      14.9
        Obligations of Affiliates

      Affiliates
        will acknowledge acceptance of the terms and conditions of this Agreement
        through the signing of a PA before conducting any transaction under this
        Agreement.

       

      14.10
        Prior Communications and Order of
        Precedence

      This
        Agreement replaces any prior oral or written agreements or other communication
        between the parties with respect to the subject matter of this Agreement,
        excluding any confidential disclosure agreements. In the event of any conflict
        in these documents, the order of precedence will be: (i) the quantity, payment
        and delivery terms of the relevant WA; (ii) the relevant SOW; (iii) the relevant
        PA; (iv) this agreement; and (v) the remaining terms of the relevant
        WA.

       

      
        	
                 

              	
                 

              	
                 

              
	
                

              	
                

              	
                

              
	
                Licensed
                  & Developed Works Agreement #PDSC-99-1146
LDWAR3 (03/30/99)
                  Modified

              	
                6
                  of
                  7

              	
                Form
                  Release: 8/98
Revision: 2/99

              


      


      

      
      


      	
               

            
	
              LICENSED
                AND DEVELOPED WORKS
                AGREEMENT

            
	
              AGREEMENT
                #PDSC-99-1146

            


       

      14.11
        Record Keeping and Audit
        Rights

      Supplier
        will maintain (and provide to Buyer upon request) relevant accounting records
        to
        support invoices under this Agreement and proof of required permits and
        professional licenses, for a period of time as required by local law, but
        not
        for less than three (3) years following completion or termination of the
        relevant SOW. All accounting records will be maintained in accordance with
        generally accepted accounting principles. 

       

      14.12
        Severability

      If
        any term
        in this Agreement is found by competent judicial authority to be unenforceable
        in any respect, the validity of the remainder of this Agreement will be
        unaffected, provided that such unenforceability does not materially affect
        the
        parties’ rights under this Agreement.

       

      14.13
        Survival

      The
        provisions set forth in the following Sections and Subsections of this Agreement
        will survive after termination of this Agreement and will remain in effect
        until
        fulfilled: “Ongoing Warranties”, “Intellectual Property”, “Indemnification”,
“Limitation of Liability”, “Record Keeping and Audit Rights”, “Choice of Law and
        Forum; Waiver of Jury Trial; Limitation of Action”, “Exchange of Information”,
        and “Prior Communications and Order of Precedence”.

       

      14.14
        Waiver

      An
        effective waiver under this Agreement must be in writing signed by the party
        waiving its right. A waiver by either party of any instance of the other
        party’s
        noncompliance with any obligation or responsibility under this Agreement
        will
        not be deemed a waiver of subsequent instances.

       

      	
               

            	
               

            	
               

            	
               

            	
               

            
	
              ACCEPTED
                AND AGREED TO:

            	
               

            	
              ACCEPTED
                AND AGREED TO:

            
	
               

            	
               

            
	
              PACIFIC
                DECISION
                SCIENCES
CORPORATION

            	
               

            	
              INTERNATIONAL
                BUSINESS MACHINES
                CORPORATION

            
	
               

            	
               

            
	
              By: 

            	
              

            	
               

            	
              By: 

            	
               

            
	
               

            	
              Authorized
                Signature

            	
               

            	
               

            	
              Authorized
                Signature

            
	
               

            	
               

            	
               

            	
               

            	
               

            
	
              Hark
                Vasa 

            	
               

            	
              Richard
                J. Couture 

            
	
              Printed
                Name

            	
               

            	
              Printed
                Name

            
	
               

            	
               

            	
               

            
	
              President


            	
               

            	
              Contract
                Administrator

            
	
              Title

            	
               

            	
              Title

            
	
               

            	
               

            	
               

            
	
              March
                31, 1999

            	
               

            	
               

            
	
              Date

            	
               

            	
              Date

            



      
        	
                 

              	
                 

              	
                 

              
	
                 

                 

                 

                 

              
	
                Licensed
                  & Developed Works Agreement #PDSC-99-1146 
LDWAR3 (03/30/99)
                  Modified

              	
                 7
                  of 7

              	
                Form
                  Release: 8/98
Revision:
                  2/99