RE: Service Bureau Prohibitions

Hi Ursula,

I'll ask Bob Hillier to find out who our Legato contact is. Clearly, we need this backup software on day 1. We will also look into the Rational relationship. It is not as critical as it is used for development (we have licenses for Rose and for ClearCase and ClearQuest).

--jay

-----Original Message-----
From: Ursula.Mills@ubsw.com [mailto:Ursula.Mills@ubsw.com]
Sent: Sat 1/5/2002 5:31 PM
To: Webb, Jay; Kitchen, Louise
Cc:
Subject: FW: Service Bureau Prohibitions

Hi Louise / Jay

If you can help shed any light on your vendor relationship with Legato
and Rational, and whether you believe there is scope for reviewing
these licenses with a view to changing the relevant license agreements,
that would be extremely helpful. We understand that both these
products would be critical components to running the Netco systems.

Thx
Ursula

-----Original Message-----
From: Roger.Ross
Sent: 05 January 2002 18:07
To: bwells
Cc: Roger.Ross; stephen.kahn; Mills, Ursula
Subject: RE: Service Bureau Prohibitions

Thanks Bert. As promised, I am following up with E Company on the
various
assigned agreements that prohibit providing service to a third party.
Feel
free to have Ursula pursue the question simultaneously. I am also
looking
into what services the parties intend Fire to provide for transition as
this is not a part of the transaction that I have been following
closely to
date.

Roger

"Wells, Bert" <bwells@cov.com< on 01/05/2002 01:46:31 PM
cc: "'ursula.mills@ubsw.com'" <ursula.mills@ubsw.com<
Subject: RE: Service Bureau Prohibitions

< This message is from a law firm and may contain information that
< is confidential or legally privileged. If you are not the
< intended recipient, please immediately advise the sender by
< reply e-mail that this message has been inadvertently
< transmitted to you and delete this e-mail from your system.
< Thank you for your cooperation.
<
<
< Steve and Roger,
<
< We are reviewing a sampling of third party software licenses E
< Company entered and seem to have found two licenses not
< previously noted by E Company as containing an express
< prohibition on use as part of a service bureau. As I discussed
< with Roger briefly yesterday, this we assume is as much an issue
< for you as it would be for us because operation of the IT on a
< service bureau basis initially is a key mutual expectation.
< Both licenses are listed on your draft Schedule 2.1(f)(i) to the
< Contribution Agreement so I'm guessing they are material to the
< Business and the relevant software would have to be operated for
< U Company's benefit. U Company hasn't spoken to any E Company
< IT personnel to learn the significance of the affected software,
< but Ursula Mills is planning to raise the question with Jay Webb
< or another appropriate person.
<
The two licenses are:

1. Enterprise Software License Agreement between Legato
Systems, Inc. and [E] Corp, dated as of Sept. 27, 2001, respecting
numerous software products generally branded with the names
NetWorker, GEMS, Celestra, Octopus and others. Section 2.2
provides: "Restrictions on Use. Licensee shall not, and shall
not aid, abet or permit any third party to: . . . (iii) . . . use
for timesharing or service bureau purposes or otherwise use . . .
the Software . . . for the benefit of third parties . . . ."

2. Products License Agreement #3185 Modified for [E]
Corp, issued by Ration Software Corp., dated as of Feb. 17, 1998,
respecting various software products branded Clearcase, Rational,
Purify, and Quantify and others. Section 1.1 provides: "General
Grant of License. . . . You may not rent, lease or use the Product
in a service bureau capacity. . . . ."

We continue to review the agreements for the Service
Bureau issue as it is the most pressing from a time perspective.
We have already found several ambiguous licenses and will bring
those to your attention as a group later.

If other express provisions such as the above turn up, I
will let you know on a case by case basis as this issue is one our
IT personnel are taking seriously.

Bert

< ....................................................
< Bert Wells
< Covington & Burling
< 1330 Avenue of the Americas
< New York, New York 10019
< (212) 841-1074 (voice)
< (212) 841-1010 (fax)
< bwells@cov.com
< ....................................................
<

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