EXHIBIT 10.20
BASE SOFTWARE LICENSE
This Base Software License agreement (this "License Agreement") is
made this 9th day of May, 1994, by and between Xxxxxxxx Consulting ("AC"),
an Illinois partnership with its principal place of business at 00 X.
Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, and The Zondervan Corporation
("Client"), a Michigan corporation with its principal place of business at
0000 Xxxxxxxxx X.X., Xxxxx Xxxxxx, Xxxxxxxx 00000; and is made with respect
to Client's operating division known as Family Bookstores ("Family"), which
has its central office in Grand Rapids, Michigan.
BACKGROUND
Pursuant to a certain Strategic Technology License and Services
Agreement ("Principal Agreement") of even date herewith between AC and
Client, AC has promised to design, develop, create and/or obtain, and
install for Client a new management information system. As provided in the
Principal Agreement: (i) the "Base Software" consists of all of the
software components (as the same may exist from time to time) of the "New
System" (as defined in the Principal Agreement), other than the "Client
Components" (as defined in the Principal Agreement); and (ii) the Base
Software is being licensed to Client under this License Agreement. The
Base Software consists of a portion thereof that is being or will be
licensed by third parties to AC ("Third Party Software"), and the balance,
which is proprietary to AC and is also being licensed by AC to Client
hereunder.
All words and phrases used as defined terms in the Principal Agreement
shall have the same meanings herein.
AGREEMENT
Now, therefore, in consideration of the foregoing and of the mutual
promises set forth below, the parties agree as follows:
1. SOFTWARE LICENSE
A. AC grants to Client, and Client accepts, the non-exclusive
right and license to use the Base Software at the Data Center and the
Retail Stores during the term of this License Agreement for the sole
purpose of using the New System, including any and all output thereof
pertaining to the business of Family.
B. Client acknowledges that the Third Party Software consists
of the JDA System and other software that has been or may be licensed to AC
under various non-exclusive license agreements. Client promises and agrees
not to copy, distribute, transfer (by any means), display, sublicense,
rent, reverse-engineer, decompile, or disassemble the Base Software nor
commit any other act or omission that would constitute a breach or default
under the Principal Agreement or a breach or default or basis for
termination of any license agreement pertaining to the JDA System or of any
license agreement whose provisions are known to Client and that pertain to
any other Third Party Software. Client agrees to defend, indemnify and
hold harmless AC from and against any claims by third parties that Client
has committed or caused a breach or default under any such license
agreement pertaining to Third Party Software.
C. Client acknowledges that all right, title and interest in
the Base Software shall remain with AC or, in the case of Third Party
Software, with the third party licensor and with AC as licensee, and that
Client has not through this license acquired any right, title, interest,
copyright, trade secret, patent, or other proprietary rights in the Base
Software or in any changes, updates, corrections, modifications,
enhancements, or derivative works thereof (other than the rights of usage
granted in paragraph 1.A hereof).
D. Client shall only use the Base Software on the Hardware at
the Data Center and the Retail Stores and such use shall be limited to use
by Client's authorized employees and other persons as are providing
services to Client for purposes specifically related to a use of the Base
Software permitted by this License Agreement, and to such third parties as
Client shall engage in accordance with the provisions of Sections 3.4 or
3.5 of the Principal Agreement. Client shall not copy the Base Software,
or any part thereof, except for the purpose of making one back-up copy;
however, Client may utilize, upon prior notice to and written approval of
AC, the Base Software temporarily or permanently on different equipment
should the Hardware become inoperable, or temporarily at a different
location.
E. Client shall keep confidential and protect the Base Software
from disclosure to any person except those persons permitted to have access
to it under this paragraph 1.E. Client shall advise all persons with access
to the Base Software of the confidential and proprietary nature of the Base
Software and of the restrictions imposed by this License Agreement. Client
shall limit access to the Base Software to such limited number of employees
and other persons as are providing services to Client for purposes
specifically related to a use of the Base Software permitted by this
License Agreement, and to such third parties as Client shall engage in
accordance with the provisions of Sections 3.4 or 3.5 of the Principal
Agreement. Client shall cause such employees and other persons to protect
the confidentiality of the Base Software, consistently with Client's
obligations hereunder and Client's usual procedures for protecting
confidential information. Nothing in this License 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
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known to it without obligation of confidence, (ii) independently developed
by it, (iii) acquired by it from a third party which is not, to its
knowledge, under an obligation of confidence with respect to such
information, or (iv) that is or becomes publicly available through no
breach of this License Agreement. In the event either party receives a
subpoena or other validly issued administrative or judicial process
requesting confidential information of the other party, it shall provide
prompt notice to the other of such receipt. The party receiving the
subpoena shall thereafter be entitled to comply with such subpoena or other
process to the extent permitted by law. Client will not be required to
implement or assure physical security of the premises where the Base
Software is used by Client so as to prohibit third party access to such
premises.
2. PAYMENT
Client shall pay AC the charges set forth in the Schedule of Charges
attached hereto as Schedule I. The monthly charge for each month shall be
payable on or before the first (1st) day of such month. All payments shall
be made in United States dollars to AC at the address set forth on the
first page of this License Agreement, and if not paid when due, will be
subject to interest on the unpaid balance at the rate of one percent (1%)
per month.
3. TERM
A. The term of the license granted under this License Agreement
shall commence on the date hereof and end on June 30, 2024, unless earlier
terminated as provided in paragraph 3.B., below.
B. The term of the licenses granted under this License
Agreement shall end:
i) simultaneously with the end of the Term of the
Principal Agreement ("Term") if said Term shall end
before July 1, 1995; or
ii) as of July 1, 1995, unless Client, on or before July 1,
1995 (or on or before the end of the applicable cure
period, as provided in the Principal Agreement, for any
Problem as to which notice of the existence of the
Problem was delivered to the defaulting party to said
agreement on or before July 1, 1995), shall have
executed and delivered to AC (and to any assignee
pursuant to Section 6 hereof) the "System Acceptance"
contemplated by Section 13.6 of the Principal
Agreement; or
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iii) by action of AC, if AC shall elect to end the term
pursuant to clause 8(i) of this License Agreement.
4. PAYMENTS TO BE UNCONDITIONAL
The obligations of Client to make payment of the amounts required
under paragraph 2 hereof or under any other paragraphs hereof and to
perform and observe the other covenants and agreements contained herein
shall be absolute and unconditional in all events, except that Client shall
have no obligation to make any payment for which the date for payment, as
specified in Schedule I hereto, shall occur after the term of the license
granted hereunder shall have terminated if such termination shall occur
pursuant to the terms of paragraph 3.B. hereof. Notwithstanding any
dispute between Client and AC under this License Agreement or the Principal
Agreement, or between Client and any other person, partnership or entity,
Client shall make all payments when due and Client shall not assert any
right of setoff or counterclaim against its obligation to make payments
hereunder, nor shall any payments otherwise required hereunder be abated
through accident or unforeseen circumstances. Notwithstanding the
foregoing or the following provisions of this Section 4, AC and any
assignee of AC may enter into a written agreement authorizing AC to direct
the Client to make payments hereunder to AC in the event such assignee
defaults in its obligation to advance funds to AC and Client is hereby
authorized and directed to comply with any such instructions given by AC
and such assignee pursuant to such an agreement.
Furthermore, Client's obligations under this Agreement are separate
from, and shall not impair or be impaired by, any other agreements between
the parties, including (but not limited to) the Principal Agreement.
5. DISCLAIMER OF WARRANTIES
AC MAKES NO WARRANTEES OR GUARANTEES, EITHER EXPRESS OR IMPLIED, FROM
A COURSE OF PERFORMANCE OR DEALING OR TRADE USAGE, OR OF UNINTERRUPTED
OPERATION WITHOUT ERROR, OR OTHERWISE. THERE ARE NO IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. In no event shall AC
be liable for any actions, direct, incidental, indirect, special,
consequential or other damages of any kind in connection with or arising
out of this License Agreement or the existence, furnishing, functioning or
Client's use of any item provided for in this License Agreement; Client's
sole remedy and recourse for any claim regarding the Base Software or
otherwise as to AC's performance hereunder shall be to terminate this
Agreement in accordance with the provisions of Section 3 hereof (if
applicable) and/or to pursue any applicable remedies under the Principal
Agreement. In no event will AC or its assigns or transferees be liable to
Client under this Agreement, directly or indirectly, for AC's performance
or nonperformance under the Principal Agreement.
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6. ASSIGNMENT BY AC
AC's rights to receive payment of Client's monetary obligations
hereunder, AC's rights to be indemnified by Client as set forth herein, and
AC's other rights and remedies with respect to any of the foregoing,
including those set forth in Section 8 hereof (collectively, the
"Assignable Interest"), may be assigned and reassigned in whole or in part
to one or more assignees or subassignees by AC, at any time subsequent to
its execution without the necessity of obtaining the consent of Client.
Upon Client's receipt of written notice of AC's assignment or transfer of
all or any part of AC's Assignable Interest hereunder, Client agrees to
attorn to and recognize any such purchaser(s), assignee(s) or transferee(s)
(jointly, if more than one) as the licensor under this License Agreement,
and Client shall make payments under this License Agreement to AC or, If
directed by AC, to the most recent assignee(s) or transferee(s) of AC's
interest of which Client has received written notice. Upon written
request, Client agrees to execute and deliver such certificates or other
instruments as may reasonably be requested, including but not limited to a
separate acknowledgment of assignment and attornment certificate in the
customary form as to any purchaser's, assignee's or transferee's right,
title and interest in, to and under the Assignable Interest. Without
limiting the generality of the foregoing, Client agrees that
notwithstanding any assignment by AC hereunder, Client shall defend and
indemnify AC against any and all liability incurred by AC as a result of
Client breaching any of its obligations under this License Agreement,
including but not limited to its obligation to make payments required by
this License Agreement.
7. EVENTS OF DEFAULT DEFINED
The following shall be "events of default" under this License
Agreement and the terms "event of default" and "default" shall mean,
whenever they are used in this License Agreement, any one or more of the
following events:
i) Failure by Client to pay to AC and/or its assigns any
payment when due hereunder, and Client further fails to
pay such amount within fourteen (14) days after the
delivery to it of written notice of non-payment;
ii) Client fails to perform any of its duties or
obligations hereunder and fails to cure such failure
within thirty (30) days after delivery to it of written
notice of such failure to perform; or
iii) Client becomes insolvent, or is unable to pay its debts
as they become due, or makes an assignment for the
benefit of creditors, applies or consents to the
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appointment of a receiver, trustee, conservator or
liquidator of Client or of any of its assets, or a
petition for relief is filed by Client under any
bankruptcy, insolvency, reorganization or similar laws,
or a petition in, or a proceeding under, any
bankruptcy, insolvency, reorganization or similar laws
filed or instituted against Client and is not dismissed
or fully stayed within sixty (60) days after the filing
or institution thereof.
8. REMEDIES ON DEFAULT
Whenever any event of default referred to in Section 7 hereof shall
have happened and be continuing, AC shall have the right, at its sole
option without further demand or notice, to take one or any combination of
the following remedial steps:
i) End the term of the licenses granted under this License
Agreement, by so notifying Client, and (with or without
having thus ended the term of such licenses) retake
possession of the Base Software or request Client to
redeliver the Base Software to AC. Client agrees that
since the Base Software has been procured or developed
specifically for it and contains licensed materials
that are proprietary to third parties, AC shall not be
obligated to sell or relicense the Base Software for
the account of Client for the purpose of applying the
proceeds to pay the costs and expenses of such
repossession and disposition and/or the applicable
purchase price and accrued interest thereon;
ii) Instruct Client to cease use of the Base Software.
Client agrees that AC is entitled to injunctive relief
if necessary to enforce this remedy;
iii) Recover payment from, and/or damages against Client in
an amount equal to the present value (based upon an
assumed internal interest rate per annum equal to the
then-current yield on U.S. Treasury bills of a term
equal to the period between the date of such recovery
and June 30, 2001) of the sum of all remaining payments
to be made under this License Agreement, plus all other
damages to which AC is legally or equitably entitled
and all of its expenses (including reasonable
attorneys' fees) of collection; and
iv) Take whatever action at law or in equity may appear
necessary or desirable to compensate AC for the
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consideration given by it under this License Agreement
and to enforce its rights to the Base Software.
9. NO REMEDY EXCLUSIVE
No remedy herein conferred upon or reserved to AC is intended to be
exclusive, and every such remedy shall be cumulative and shall be in
addition to every other remedy given under this License Agreement or now or
hereafter existing at law or in equity. No delay or omission to exercise
any right or power accruing upon any default shall impair any such right or
power, nor shall it be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed
expedient.
10. NO IMPAIRMENT OF AC OBLIGATIONS UNDER PRINCIPAL AGREEMENT
Nothing contained in this License Agreement shall negate, modify or
supersede any of the representations, warranties, duties and obligations of
AC to Client under the Principal Agreement.
11. NOTICES
All notices, certificates or other communications hereunder shall be
sufficiently given and shall be deemed given when delivered or mailed by
registered mail, postage prepaid, to the parties at the following
addresses:
To AC:
Xxxxxxxx Consulting
00 X. Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Treasurer
To Client:
The Zondervan Corporation
0000 Xxxxxxxxx X.X.
Xxxxx Xxxxxx, XX 00000
All such notices shall be deemed given when received (if delivered
personally) or on the third (3rd) business day after the mailing thereof
(if mailed).
12. ASSIGNMENT BY CLIENT
Client may not assign its rights or delegate its obligations under
this License Agreement, in part or whole, without the prior written consent
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of AC, and any such attempted assignment or delegations shall be void;
provided, however, that Client shall have the right to assign this License
Agreement to any Affiliate of Client or to any person or entity that
acquires substantially all of the assets of Client's Family division,
without the consent of AC (and of any assignee of AC pursuant to Section 6
hereof) ("Assignee") upon giving AC (and any Assignee of whom AC shall have
notified Client in accordance with Section 6 of this License Agreement)
written notice of such assignment. Notwithstanding the foregoing, no such
assignment shall relieve Client of its liability for the performance of its
obligations under this License Agreement.
13. SEVERABILITY
In the event any provision of this License Agreement shall be held
invalid or unenforceable by any court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any other provision
hereof.
14. AMENDMENTS, CHANGES AND MODIFICATIONS
This License Agreement may be amended in writing by AC and Client.
15. EXECUTION IN COUNTERPARTS
This License Agreement may be simultaneously executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
16. APPLICABLE LAW
This License Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
17. CAPTIONS
The captions or headings in this License Agreement are for convenience
only and in no way define, limit or describe the scope of intent of any
provisions or sections of this License Agreement.
18. PLACE OF SUIT
Any action or proceeding arising out of or related to this License
Agreement may be brought only in an appropriate court in Illinois.
19. PARTNER NON-RECOURSE
Notwithstanding anything contained in this License Agreement to the
contrary, recourse for the payment or performance of any obligation of AC
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on account of any provisions of this License Agreement shall be had only
against the assets, property and rights of AC. No partner of AC shall have
any personal liability for or on account of any provision of this License
Agreement, nor shall any assets or property (including the partners'
interest in any voluntary investment partnership organized or sponsored by
AC or any affiliate thereof) of any individual partner of AC be taken for
or be subject to execution on account of any provision of this License
Agreement. Nothing herein contained shall prevent the collection of any
indebtedness owed to AC by a partner thereof.
IN WITNESS WHEREOF, the parties have executed this License Agreement
by their respective duly authorized representatives specified below. All of
the above occurred as of the date first above written.
Xxxxxxxx Consulting The Zondervan Corporation
By: /S/ By: /S/ XXXXXX X. XXXXXXXX
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Title: PARTNER Title: PRESIDENT
Date: MAY 10, 1994 Date: MAY 9, 1994
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