RE: Quallaby / Evaluation Agreement

Mark,
Has Quallaby been sent the signed document?
Thanks,
Rick

-----Original Message-----
From: Greenberg, Mark
Sent: Tuesday, September 18, 2001 10:30 PM
To: "DeZenzo, Ray" <rdezenzo@quallaby.com<@ENRON
Cc: Jones, Tana; Shoup, Rick; Greenberg, Mark
Subject: RE: Quallaby / Evaluation Agreement

Ray -

The changes made are acceptable. I will have two originals circulated internally for signature and forward them to your company for counter-signature.

As I will be out of the office through tomorrow, it may be the end of the week before you have the agreements in hand.

Mark

-----Original Message-----
From: "DeZenzo, Ray" <rdezenzo@quallaby.com<@ENRON
Sent: Mon 9/17/2001 5:37 PM
To: Greenberg, Mark
Cc: Shoup, Rick; Axbey, Tom; Borchgrevink, Jack
Subject: RE: Quallaby / Evaluation Agreement

Mark,

Attached you'll find a clean and blackline version of the revised agreement which reflects changes resulting from your items 1,2,3 and 5 below. The intent behind not changing item 4 is that if Enron were to use the software in one of the identified "dangerous or hazardous" uses Enron would be on it's own. If you have any further questions or comments please do not hesitate to contact me at 978 322-4220. Otherwise please arrange to execute 1 original and fax it to me at 978 322-4100 for counter signing.

Thanks,

Ray

-----Original Message-----

From: Mark.Greenberg@enron.com [ <mailto:Mark.Greenberg@enron.com< <<mailto:Mark.Greenberg@enron.com<< ]

Sent: Monday, September 17, 2001 10:44 AM

To: rdezenzo@quallaby.com

Cc: Rick.Shoup@enron.com

Subject: RE: Quallaby / Evaluation Agreement

Ray -

Thanks for the response and the black line. Below are my additional

comments:

1. The reference to "Hardware Products" needs to be deleted, as does the

Schedule B. It is my understanding that the hardware is provided by a

different vendor. If it is necessary to reference the hardware as a

requirement for running the software programs, this should be listed in

Schedule A as a specification.

2. Paragraph 2.1 - the term "its best efforts" should be replaced with

"reasonable efforts" and, if it is Quallaby's position that Enron pursue

confidential treatment of the information, despite legal requirements to

disclosed placed on Enron, the reasonable cost for pursuing this protection

should be borne by Quallaby.

3. Paragraph 3.2 - the change made at the end of the paragraph needs to

read "... BUT SPECIFICALLY EXCLUDING ANY WARRANTIES ASSOCIATED WITH THE

INDEMNITY OBLIGATIONS OF SECTION 3.1(a) AND 3.1(b) ABOVE." Since neither

of the referenced provisions are, themselves, warranties, it is incorrect

to reference them in 3.2 as being warranties.

4. Paragraph 3.3 - the following language should be inserted after the

word "applications" - "save and except for any indemnity obligations of

Quallaby set forth in Section 3.1 above." By not having this reference, it

is possible that section 3.3 could be read to negate Quallaby's obligations

as set out in Section 3.1.

5. In Section 5 of the Agreement - a new paragraph should be added as

paragraph 5.9 to indicate as follows: "The provisions of Sections 2, 3 and

4 shall survive any termination or expiration of this Agreement." This is

more so important now that Quallaby has included specific provisions

enabling it to terminate the agreement upon a threat of an infringement

claim.

With changes in the areas indicated above incorporated into the agreement,

we are prepared to move this matter forward.

Thanks for your continued assistance and cooperation.

Mark

-----Original Message-----

From: "DeZenzo, Ray" <rdezenzo@quallaby.com<@ENRON

[ <mailto:IMCEANOTES-+22DeZenzo+2C+20Ray+22+20+3Crdezenzo+40quallaby+2Ecom+3E+40ENRON@ENRON.com< <<mailto:IMCEANOTES-+22DeZenzo+2C+20Ray+22+20+3Crdezenzo+40quallaby+2Ecom+3E+40ENRON@ENRON.com<< ]

Sent: Monday, September 17, 2001 7:44 AM

To: Greenberg, Mark

Cc: Shoup, Rick; Borchgrevink, Jack; Axbey, Tom

Subject: Quallaby / Evaluation Agreement

Mark,

Attached you'll find a clean and blackline version of the

Evaluation Agreement. We have accepted many of your changes and

rearranged others. If you have any questions or would like to discuss

any component of the agreement please do not hesitate to contact me

directly at 978 322-4220. Otherwise please arrange to execute 1

original and fax it to me at 978 322-4100 for counter signing.

Thanks,

Ray DeZenzo

CFO

Quallaby Corporation

<<Evaluation Agreement - Enron - 010917.DOC<< <<Evaluation Agreement -

Enron - 010917-BL.DOC<<

- Evaluation Agreement - Enron - 010917.DOC << File: Evaluation

Agreement - Enron - 010917.DOC <<

- Evaluation Agreement - Enron - 010917-BL.DOC << File: Evaluation

Agreement - Enron - 010917-BL.DOC <<

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- Evaluation Agreement - Enron - 010917-2.DOC <<Evaluation Agreement - Enron - 010917-2.DOC<<

- Evaluation Agreement - Enron - 010917-2-BL.DOC <<Evaluation Agreement - Enron - 010917-2-BL.DOC<<