This Support Agreement (this "Agreement") is made and entered into as
of May 30, 2002 (the "Effective Date"), by and between Accrue Software,
Inc., a Delaware corporation ("Accrue") and Pilot Software Services Corp., a
Delaware corporation ("Licensor").
WHEREAS, Accrue and Licensor are party to a certain Asset Purchase
Agreement dated May 30, 2002; and
WHEREAS, pursuant to the transaction contemplated by the Asset Purchase
Agreement, Licensor desires to provide, and Accrue desire to receive, the
support set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereby agree as follows:
"Hit List Software" means the Hit List Software Products (as that term is
defined in the Asset Purchase Agreement) excluding the third party software
embedded therein pursuant to the agreements set forth in Section 1.01(a)(iv) --
5 of the Disclosure Schedule of the Asset Purchase Agreement.
"Pilot Software" means the Pilot Software Products (as that term is defined in
the Asset Purchase Agreement) excluding the third party software embedded
therein pursuant to the agreements set forth in Section 1.01(a)(iv) -- 5 of the
Disclosure Schedule of the Asset Purchase Agreement.
"Services" shall have the meaning set forth in Section 2.2.
"Software" means the Hit List Software and the Pilot Software.
Additional capitalized terms used herein shall have the same meaning set forth
in the Asset Purchase Agreement.
2. MAINTENANCE AND SUPPORT.
2.1 Licensor will provide to Accrue, all bug fixes, patches, workarounds and
other error corrections to the Software that Licensor generates and makes
generally available to its customers during the term of this Agreement.
2.2 Upon the request of Accrue, and subject to resource availability, Licensor
shall provide support services with respect to the Software to Accrue and its
customers ("Services"), on a time and materials basis.
2.2.1 Statements of Work. Accrue shall provide to Licensor a separate
statement of work ("SOW") for each project, assignment or task requested by
Accrue. Each SOW shall expire upon the completion of the services under the SOW.
Each SOW will become part of this Agreement by this reference when executed by
authorized representatives of Accrue and Licensor and shall include: (a) a
detailed description of the parties respective responsibilities; (b) an
estimated performance schedule; and (c) the deliverables, if any. A SOW may only
be amended or modified by a written document signed by authorized
representatives of the parties. Licensor will retain the sole and exclusive
right to control or direct the manner or means by which the Services are
performed and may subcontract any or all of the Services.
2.2.2 Data and Information. Accrue shall make available in a timely manner
at no charge to Licensor all technical data, computer facilities, programs,
files, documentation, test data, sample output, or other information and
resources reasonably required by Licensor for the performance of the Services.
Accrue will be responsible for, and assumes the risk of any problems resulting
from, the content, accuracy, completeness and consistency of all such data,
materials and information supplied by Accrue.
2.2.3 Equipment. Accrue shall provide, at no charge to Licensor, office
space and equipment (such as copies, fax machines, and modems) as Licensor
reasonably requires to perform the Services.
2.2.4 Contact Person. Each party will appoint, in writing, an employee or
agent of such party to act as the "Contact Person" for all communication between
the parties related to the Services. The Contact Person will be responsible for
monitoring the status of the Services and will schedule regular meetings with
both technical and management personnel of each party to review the status of
3.1. Accrue shall be billed on a monthly basis for all Services provided under
Section 2.2. All payments shall be made within thirty (30) days after receipt of
a valid invoice. Accrue will pay interest on any overdue amount at a rate equal
to the lesser of the maximum rate allowed by law or 1.5% per month, until such
amount is paid in full.
3.2 Accrue agrees to pay all sales, use, value-added, excise or similar taxes
imposed as a result of the services provided to Accrue hereunder (other than
taxes based on Licensor's income).
4. DISCLAIMER OF IMPLIED WARRANTIES.
4.1 Licensor warrants that the Services will be provided by qualified, competent
personnel and in accordance with generally accepted industry practices.
4.2 LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
5. CONFIDENTIAL INFORMATION.
5.1 Confidential Information. "Confidential Information" means any nonpublic and
proprietary information or materials relating to a party's marketing business or
technology which the disclosing party marks as "confidential" at the time of
disclosure or confirms in writing is confidential within a reasonable time (not
to exceed thirty (30) days) after disclosure. The terms and conditions (but not
the existence) of this Agreement shall be deemed Confidential Information of
each party. Notwithstanding the foregoing, Confidential Information does not
include, and nothing in this Agreement shall prohibit or limit either party's
use of, information (including but not limited to ideas, concepts, know-how,
techniques, and methodologies) (i) previously known to it, (ii) independently
developed by it, (iii) acquired by it from a third party which was not, to the
receiving party's knowledge, under an obligation to the disclosing party not to
disclose such information, or (iv) which is or becomes publicly available
through no breach by the receiving party of this Agreement.
5.2 Protection of Confidential Information. Neither party will provide, disclose
or otherwise make available to any third party any of the disclosing party's
Confidential Information. Except as expressly provided herein, the receiving
party will not use or disclose such Confidential Information without the
disclosing party's prior written consent, except to the receiving party's
employees or consultants on a need-to-know basis, provided that any such
consultants have executed written agreements restricting use or disclosure of
such Confidential Information that are at least as restrictive as the receiving
party's obligations under this Section 5. In addition to the foregoing
nondisclosure obligations, the receiving party agrees to use at least the same
care and precaution in protecting such Confidential Information as the receiving
party uses to protect the receiving party's own confidential and proprietary
information and trade secrets, and in no event less than reasonable care. The
receiving party shall return all Confidential Information promptly upon the
request of the disclosing party or upon termination of this Agreement.
5.3 Equitable Remedy. Each party acknowledges that due to the unique nature of
the other party's Confidential Information, the disclosing party will not have
an adequate remedy in money or damages in the event of any unauthorized use or
disclosure of such party's Confidential Information. In addition to any other
remedies that may be available in law, in equity or otherwise, each party shall
be entitled to seek any injunctive relief that may be appropriate to prevent
such unauthorized use or disclosure.
6. TERM AND TERMINATION.
6.1 Term. This Agreement is effective as of the Effective Date, and will
continue in effect for a period of two (2) years unless earlier terminated
pursuant to this Section 7.
6.2 Termination. Either party may terminate this Agreement if the other party
materially breaches this Agreement and such breach has not been cured within
sixty (60) days after written notice thereof.
6.3 Survival. Sections 5 (for a period of 3 years) and 7, as well as any accrued
but unpaid payment obligations, shall survive the termination or expiration of
7. LIMITATION OF LIABILITY.
7.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT OR FOR BREACH
HEREOF FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND,
INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING
THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8.1 Independent Contractor Status. Each party agrees and acknowledges that in
its performance of its obligations under this Agreement, it is an independent
contractor of the other party, and is solely responsible for its own activities.
Neither party shall have any authority to make commitments or enter into
contracts on behalf of, bind or otherwise obligate the other party in any manner
whatsoever. No joint venture, franchise or partnership is intended to be formed
by this Agreement.
8.2 Entire Agreement; Amendment. This Agreement constitutes the entire Agreement
between the parties with respect to the subject matter hereof and supersedes all
prior contemporaneous oral or written understandings or agreements among the
parties which relate to the subject matter hereof. No modification or amendment
of this Agreement or any of its provisions shall be binding upon any party
unless made in writing and duly executed by authorized representatives of all
8.3 Governing Law and Jurisdiction. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of California without
regard to the conflicts of laws principles thereof. All disputes arising out of
or related to this Agreement will be subject to the exclusive jurisdiction and
venue of the California state and federal courts located in Santa Clara County,
California and the parties hereby consent to such jurisdiction and venue. The
United Nations Convention on Contracts for the Sale of Goods does not apply to
8.4 Assignment. Neither party may assign or transfer, whether voluntarily, by
operation of law, or otherwise, any rights or delegate any duties under this
Agreement without the prior written consent of the other party. Any purported
transfer, assignment or delegation without such prior written consent will be
null and void and of no force or effect. Notwithstanding the foregoing, both
parties shall have the right to assign this Agreement to any successor to
substantially all of its business or assets to which this Agreement relates,
whether by merger, sale of assets, sale of stock, reorganization or otherwise.
Subject to the foregoing, this Agreement
will bind and inure to the benefit of the parties and their respective
successors and permitted assigns.
8.5 Notices. All notices, requests, consents and other communications which are
required or permitted hereunder shall be in writing, and shall be delivered by
registered U.S. mail, postage prepaid (effective three (3) days after mailing)
or sent by facsimile or electronic mail, with a confirmation copy simultaneously
sent by U.S. mail, postage prepaid (effective upon transmission), at the
addresses set forth on the signature page. Notice of change of address shall be
given in the same manner as other communications.
8.6 Severability. If any provision of this Agreement is held to be invalid,
illegal or unenforceable for any reason, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
8.7 Counterparts. This Agreement may be executed in two counterparts, both of
which taken together shall constitute a single instrument. Execution and
delivery of this Agreement may be evidenced by facsimile transmission.
IN WITNESS WHEREOF Accrue and Licensor, intending to be legally bound by
the terms of this Agreement, have caused this Agreement to be executed by their
duly authorized representatives as of the Effective Date.
ACCRUE SOFTWARE, INC.
PILOT SOFTWARE SERVICES CORP.