RE: Quallaby / Evaluation Agreement

Ray -

I apologize. It appears that I did not circulate the agreement for signature. I have done so this a.m. and it should be sent to you later today.

One note, in Paragraph 2.1, Quallaby had inserted the phrase "best efforts" in relation to action by Enron to procure protection for disclosed information. I have revised this one item to read "reasonable efforts" - which is consistent with my comments made in other areas of the agreement.

Thanks for the patience and, once again, I apologize for the delay.

Mark

-----Original Message-----
From: "DeZenzo, Ray" <rdezenzo@quallaby.com<@ENRON [mailto:IMCEANOTES-+22DeZenzo+2C+20Ray+22+20+3Crdezenzo+40quallaby+2Ecom+3E+40ENRON@ENRON.com]
Sent: Thursday, October 04, 2001 7:51 AM
To: Shoup, Rick; Greenberg, Mark
Cc: Jones, Tana; Cummings, Dan
Subject: RE: Quallaby / Evaluation Agreement

Quallaby has not rec'd anything.
Please confirm use of the following address:
Quallaby Corporation
59 Composite Way, Suite 400
Lowell, MA 01851
Attn: Ray DeZenzo
Thanks.
-----Original Message-----
From: Rick.Shoup@enron.com [mailto:Rick.Shoup@enron.com << File: mailto:Rick.Shoup@enron.com << ]
Sent: Wednesday, October 03, 2001 7:13 PM
To: Mark.Greenberg@enron.com; rdezenzo@quallaby.com
Cc: Tana.Jones@enron.com; Dan.Cummings@enron.com
Subject: 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 << File: mailto:Mark.Greenberg@enron.com <<
<mailto:Mark.Greenberg@enron.com << File: mailto:Mark.Greenberg@enron.com << < <<mailto:Mark.Greenberg@enron.com << File: 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 << File: 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 << File: 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 << File: 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 <<
**********************************************************************
This e-mail is the property of Enron Corp. and/or its relevant
affiliate and may contain confidential and privileged material for the
sole use of the intended recipient (s). Any review, use, distribution
or disclosure by others is strictly prohibited. If you are not the
intended recipient (or authorized to receive for the recipient),
please contact the sender or reply to Enron Corp. at
enron.messaging.administration@enron.com and delete all copies of the
message. This e-mail (and any attachments hereto) are not intended to
be an offer (or an acceptance) and do not create or evidence a binding
and enforceable contract between Enron Corp. (or any of its
affiliates) and the intended recipient or any other party, and may not
be relied on by anyone as the basis of a contract by estoppel or
otherwise. Thank you.
**********************************************************************
- 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<<