PARAGON[LOGO]
SOFTWARE LICENSE AGREEMENT
rev. 05/05/98
This SOFTWARE LICENSE AGREEMENT (the "Agreement") is entered into
this day of December, 1999 by and between PARAGON MANAGEMENT SYSTEMS, INC.,
a California corporation located at 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000 ("Paragon"), and QUAKER FABRIC CORPORATION OF FALL
RIVER, a Massachusetts corporation located at 000 Xxxxxxxx Xxxxxx, Xxxx Xxxxx,
Xxxxxxxxxxxxx 00000 ("Licensee").
1. Definitions
1.1. "includes"; "including". Except where followed directly by the word
"only", the terms "includes" or "including" shall mean "includes, but is not
limited to" and "including, but not limited to" respectively, it being the
intention of the parties that any listing following thereafter is illustrative
and not exclusive or exhaustive.
1.2. "Software". The term "Software" shall mean the computer software
programs of Paragon identified in Exhibit "A" attached hereto and incorporated
herein in object code form only, and any versions of such programs which are
provided to Licensee subsequent to the Effective Date (as defined below).
1.3. "Documentation". The term "Documentation" shall mean the operator and
user manuals, training manuals, guides specifications and other documentation
customarily supplied by Paragon with the Software to licensees.
1.4. "Products". The term "Products" shall mean the Software, the
Documentation and any other materials provided to Licensee by Paragon hereunder.
The plural term "Products" is used even though there may be only one Product
licensed hereunder.
1.5. "Facility". The term "Facility" shall mean a single unit or business
activity of a business entity, which unit or business activity may be a
manufacturing unit, production unit, assembly unit, storage unit or distribution
unit. There may be more than one Facility within a single business entity, and
there may be more than one Facility within a single site of a business entity.
1.6. "Licensed Facility". The term "Licensed Facility" shall mean a
Facility as to which Licensee has licensed a Product hereunder.
1.7. "Designated Computer". The term "Designated Computer" shall mean the
computer system owned by, or leased exclusively to, Licensee and operated by
Licensee at Licensee's premises, designated on Exhibit "A" attached hereto and
incorporated herein by this reference.
1.8. "Effective Date". The term "Effective Date" shall mean the date first
set forth above which, upon execution of this Agreement by both parties, shall
be the effective date of this Agreement.
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1.9. "New Release". The term "New Release" shall mean a new version of a
Product prepared to incorporate one or more of the following: (i) improvement of
speed, performance, capacity, ease of use or other aspects of a Product; (ii)
correction of Nonconformities in the Software; (iii) the addition of features
and/or functionality; or (iv) revision of a Product as necessary or desirable
for the Product to operate with any upgraded versions of, or replacements for,
any operating system.
1.10. "Corrected Version". The term "Corrected Version" shall mean a
version of the Software prepared primarily for the purpose of correcting
Nonconformities where it is undesirable or impractical to delay the correction
of such Nonconformities until the next New Release.
1.11. Other Terms. The following other terms are defined in the Sections
cited:
"Cessation" - Section 15.2.
"Confidential Information" - Section 10.
"Nonconformity" - Section 15.1.1
"Warranty Period" - Section 15.1.1
2. Third Party Software
Licensee shall be solely responsible for obtaining, installing and
maintaining any third party software necessary for, or useful in, the operation
of the Products licensed by Licensee hereunder, at Licensee's sole expense.
Paragon has identified all necessary and recommended third party software in
Exhibit "A".
3. License and Term of Agreement
3.1. License. Subject to the terms and conditions set forth herein,
Paragon hereby grants to Licensee a nonexclusive, nontransferable,
nonsublicensable license to use the Products during the term of this Agreement,
on the Designated Computers located at the Licensed Facility or Licensed
Facilities identified in Exhibit "A" and only for the number of concurrent users
identified in Exhibit "A", and only for Licensee's internal data processing
purposes. Licensee may use the Products on a different computer or at a
different Facility during a temporary emergency, provided that; (i) such use is
under the control of Licensee; and (ii) such use continues only so long as is
reasonably necessary to accommodate the emergency conditions (and in no event
longer than _26_ weeks). Licensee assumes full responsibility for the
management, supervision and control of the Products, and shall take all measures
necessary to reasonably assure that all personnel using the Products are, in the
opinion of both parties, suitably qualified and trained for such use.
3.2. Addition of Licensed Facilities. Licensee, at its sole discretion,
shall have the absolute right to add an additional Licensed Facility under this
Agreement, provided that Licensee notify Paragon of its decision to add an
additional Licensed Facility and pays to Paragon the current list price for the
license fee for the number of authorized concurrent users at such new Licensed
Facility.
3.3. Addition of Concurrent Users At Existing Licensed Facility. License,
at it is sole discretion, shall have the absolute right to add additional
concurrent users at a then-existing Licensed Facility, Licensee notify Paragon
and pay to Paragon the difference between the current list price for the
increased number of users and the original price paid for the lower number of
users at such existing Licensed Facility.
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3.4. Back-Up and Archival Copies. Licensee shall have the right to make a
reasonable number of copies for back-up purposes, provided that no such backup
copies are used for any other purpose, and further provided that the use of
back-up copies does not have the effect of increasing the number of permitted
concurrent users. In addition, Licensee shall be permitted to make archival
copies as part of a regular program of computer system data archiving, provided
that such archival copies are used only for archival purposes or emergency
purposes, and further provided that the use of archival copies does not increase
the number of permitted concurrent users.
3.5. Documentation. Licensee may make such copies of the Documentation as
are reasonably necessary for its internal use of the Products by the permitted
number of simultaneous users, but may not make copies of the Documentation for
any other purpose.
3.6. No Service Bureau Use. Licensee shall not, under any circumstances,
use or permit the use of the Software in or on any service bureau, time-sharing
or in any situation where the computer system on which the Software is installed
may be accessed by any party other than Licensee.
4. License Fees
4.1. License Fees. Licensee shall pay Paragon the license fees set forth
in Exhibit "A" for the Products licensed, at the Licensed Facilities,, payable
upon execution of this agreement.
4.2. Maintenance Fees. In consideration of the Software and services
provided hereunder, Licensee shall pay Paragon the annual maintenance fees set
forth in Exhibit "A" as adjusted for the number of Licensed Facilities and
Concurrent Users set forth therein. Such payments shall be made in full in
advance. Paragon may increase the annual maintenance fees in connection with any
renewal of the term of this Agreement. Paragon shall give Licensee written
notice of any increase in maintenance fees at least thirty (30) days' prior to
the renewal date on which such increase is to take effect. Any price increases
shall not exceed the increase in the Consumer Price Index from the prior annual
period.
4.3. Fees For Unnecessary Use of Technical Support. Paragon shall have the
right to charge additional maintenance fees at Paragon's then-current rates for
unreasonable time spent providing technical support to Licensee's personnel with
respect to basic questions or problems that could have been readily resolved by
consultation of the Documentation, or with respect to matters which are not
directly related to the operation of a Product. Paragon shall provide Licensee
with written notice immediately upon Paragon's determination that Licensee's
usage of Technical Support is becoming unreasonable.
4.4 Not Used
4.5. Taxes. Licensee shall be solely responsible for all sales, use,
withholding property or other taxes applicable to the license granted pursuant
to this Agreement, other than taxes based on Paragon's U.S. net income or
employee and payroll taxes.
4.6. Late Payments. All payments to Vendor will be made in United States
dollars. Amounts outstanding over thirty (30) days may be assessed interest at a
rate equal to the lesser of one and one-half percent (1 1/2%) per month or the
maximum rate allowed by law, and such accrual of interest will be in addition,
and not in limitation of, any other rights or remedies which Paragon may have
under this Agreement or at law or in equity. In the event that any interest has
accrued, all amounts paid by Licensee will be credited first against such unpaid
interest.
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5. Delivery and Installation
5.1. Delivery. As soon as may be practicable after receipt of payment of
the initial license fee set forth in Exhibit "A" from Licensee, Paragon shall
deliver the Products to Licensee's Licensed Facility.
5.2. Installation. Licensee shall be solely responsible for installation
of the Software on each Designated Computer at each Licensed Facility.
6. Not Used
7. Maintenance
7.1. Support Period. The "Support Period" commences upon the Effective
Date and shall continue until the first anniversary of the Effective Date.
Licensee may renew the Support Period for one or more additional one-year terms
by giving notice of renewal not later than thirty (30) days before the
expiration of the then-current term and paying the annual renewal fee as set
forth in Section 4.2 and Exhibit A hereto.
7.2. Maintenance. During the Support Period, Paragon shall (i) provide to
Licensee reasonable telephone, facsimile, electronic mail or written
consultation concerning the use and operation of the Software during business
hours in the Eastern time zone and (ii) use reasonable diligence to correct
verifiable and reproducible Nonconformities on a timely basis. Should any
material Nonconformity be detected by either Licensee or Paragon, Paragon shall
immediately endeavor to either correct such Nonconformity, or provide a
reasonable workaround, within fourteen (14) days. Paragon shall endeavor to
provide Corrected Versions on a timely basis in light of the severity of the
Nonconformities existing at any particular time and the anticipated release of
the next New Release. Licensee understands and acknowledges that Nonconformity
corrections may be cumulative, and if Licensee fails to implement any
Nonconformity correction, Corrected Version or New Release delivered by Paragon,
subsequent Nonconformity corrections, Corrected Versions or New Releases may not
be effective. In addition, Paragon's response will be in accordance with Exhibit
B, which is attached hereto and incorporated herein.
7.3. New Releases. Each New Release which Paragon releases to its
customers during the Support Period shall be provided to Licensee at no charge
(other than the maintenance fee payable pursuant to this Agreement as set forth
in Exhibit A hereto). Licensee understands and acknowledges that New Releases
may be cumulative, and if Licensee fails to implement any New Release delivered
by Paragon, subsequent New Releases may not be effective. Paragon shall deliver
such New Release or Corrected Version to Licensee at each Licensed Facility
authorized to use the Product underlying the New Release. Each New Release
delivered to Licensee shall be subject to all of the rights, obligations, terms
and conditions of the License Agreement upon delivery.
7.4. No Paragon Obligation As To Hardware or Other Software. Paragon shall
not have any obligation to Licensee to provide maintenance or technical support
for any hardware or to any software other than the Software provided by Paragon
hereunder. Without limiting the generality of the foregoing, Paragon shall have
no maintenance or technical support obligation to Licensee for operating
systems, third party databases and related software, client/server tools,
networks, printers, personal computers, terminal emulation software,
communications packages or any hardware, whether or not purchased from Paragon.
The foregoing shall not be construed to relieve Paragon of responsibility for
any incompatibility or operational problem between the Software and any hardware
or other software where the specifications of or documentation for the
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Software state that the Software is compatible or will operate with such
hardware or other software.
7.5. Exclusions From Maintenance and Technical Support. The following are
excluded from Paragon's obligations under this Agreement, and Paragon shall have
no obligations to Licensee with respect to:
(a) Any problem with a Product resulting from the misuse, improper use
or alteration of the Product or any portion thereof by Licensee, or
from the failure by Licensee to use the Product in accordance with
the Documentation and any instructions given by Paragon technical
personnel;
(b) Any problem caused by modifications not provided by Paragon;
(c) Any problem resulting from the combination of a Product with other
software programs or programming not provided by Paragon and not
expressly identified by Paragon as being compatible with the
Product;
(d) Any problem arising with respect to the use of a version of a
Product other than the most current New Release, where such problem
was corrected in a version subsequent to the version Licensee is
then using and the subsequent version was made available to
Licensee; and
(e) Any problem relating to the sufficiency, installation or maintenance
(or lack thereof) of any equipment, telecommunications lines,
communications interfaces or other hardware necessary to operate a
Product or used by Licensee in the operation of a Product.
7.6 Termination By Paragon For Failure To Implement New Releases. Paragon
shall have the right to terminate the Support Period in the event that Licensee
does not implement any New Release within one (1) year after such New Release is
delivered to Licensee, except in the case where Licensee does not accept such
New Release in accordance with Section 7.3 above. Such termination of the
Support Period shall be effected by giving Licensee sixty (60) days' advance
written notice of termination, and if Licensee does not implement the New
Release within such sixty-day period, this Agreement shall terminate.
8. Expenses
Except as expressly set forth herein, each party shall bear all expenses
incurred by such party in connection with its performance hereunder. In no event
shall either party incur any expense whatsoever on behalf of the other party
without first having received express written authorization from such other
party.
9. Escrow of Source Code
Paragon will promptly deliver a complete copy of the source code for the
Software to an escrow agent selected by mutual agreement of the parties, upon
execution of this Agreement. Paragon will provide the escrow agent with
reasonable written instructions specifying the conditions under which Licensee
shall be entitled to receive a copy of the source code. These conditions are
limited to cessation of operations by Paragon or its successors or if Paragon
ceases to support and maintain the Software. Paragon will provide Licensee with
copy of the final escrow agreement.
10. Term; Termination
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10.1. Term of Agreement. This Agreement shall become effective on the
Effective Date and shall remain in full force and effect until terminated by
either party pursuant to the terms and conditions set forth in this Section 10.
10.2. Termination For Cause. Either party may terminate this Agreement at
any time in the event that the other party materially fails to perform any of
its material obligations hereunder. Such termination shall be effected by giving
thirty (30) days' written notice of termination to the other party stating in
reasonable detail the asserted failure. If before the end of the thirty (30) day
notice period the party against whom such failure was asserted cures the
asserted failure, to the reasonable satisfaction of the notifying party, then
the notice of termination shall be void and this Agreement shall continue in
force. (Termination shall be immediate if it is due to a breach of Section 11).
10.3. Termination Without Cause By Licensee. Licensee may terminate this
Agreement without cause at any time by giving thirty (30) days' written notice
of termination to Paragon, but such termination shall not entitle Licensee to a
refund of any fees paid under this Agreement, nor shall it relieve Licensee of
the obligation to pay any fees which were due and payable as of the date on
which notice of termination was given.
10.4. Effect of Termination. On or before the effective date of any
termination of this Agreement, whether for or without cause , Licensee shall:
(i) cease all use of the Products; (ii) remove all copies of the Software from
its computers; (iii) return to Paragon all Documentation and any other materials
provided by Paragon, and all copies thereof; and (iv) deliver a certificate to
Paragon certifying Licensee's compliance with the foregoing. Except as expressly
set forth, no termination of this Agreement shall relieve Licensee of any
obligation for amounts due to Paragon as of the effective date of termination.
10.5. Survival. The rights and obligations set forth in Sections 4.5, 4.6,
10.4 and Sections 11 through 18 shall survive any termination of this Agreement
for any reason whatsoever.
11. Confidentiality
11.1. Confidential Information. For purposes of this Agreement,
"Confidential Information" shall mean any information, whether or not owned or
developed by the disclosing party, which the receiving party may obtain
knowledge of through or as a result of the relationship established hereunder
with the disclosing party, access to the disclosing party's premises, or
communications with the disclosing party's employees or independent contractors.
"Confidential Information" includes, but is not limited to, information about
the disclosing party's finances, operations and maintenance, algorithms, trade
secrets, computer programs, design, technology, ideas, know-how, processes,
formulas, compositions, data, techniques, improvements, inventions (whether
patentable or not), works of authorship, business and product development plans,
call tracking tables, problem resolution data, customer history tables,
maintenance contract tables, other customer information and other information
concerning the disclosing party's actual or anticipated business, research or
development, or which is received in confidence by or for the Company from any
other person. Confidential Information also includes any information which the
disclosing party obtains from any third party which the disclosing party treats
as proprietary or designates as Confidential Information. Confidential
Information shall not include information that (i) is known by the receiving
party at the time of receipt from the disclosing party and which is not subject
to any other non-disclosure agreement between the parties; (ii) is now, or
hereafter becomes, generally known to the industry through no fault of the
receiving party, or which is later intentionally published or generally
disclosed to the public by the disclosing party; or (iii) is
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otherwise lawfully and independently developed by the receiving party, or is
lawfully acquired from a third party without any obligation of confidentiality.
The receiving party shall bear the burden of showing that any of the foregoing
exclusions applies to any information or materials. The parties acknowledge that
any disclosure or unauthorized use of Confidential Information will constitute a
material breach of this Agreement and cause substantial harm to the disclosing
party for which damages would not be a fully adequate remedy, and, therefore, in
the event of any such breach, in addition to other available remedies, the
disclosing party shall have the right to obtain injunctive relief.
11.2. No Use or Disclosure. Each party agrees to hold in confidence, not
to use and not to disclose or reveal to any person or entity the Confidential
Information received hereunder without the clear and express prior written
consent of a duly authorized representative of the disclosing party. Each party
agrees that it shall only be permitted to use the other party's Confidential
Information to the limited extent necessary to fulfill its obligations under
this Agreement.
11.3. Legally Required Disclosure. In the event a receiving party hereto
is directed to disclose any portion of a disclosing party's Confidential
Information or any other materials proprietary to the disclosing party in
conjunction with a judicial proceeding or arbitration or pursuant to any other
legal order or requirement, such receiving party shall immediately notify the
disclosing party both orally and in writing, and shall provide reasonable
cooperation to the disclosing party should the disclosing party seek a
protective order or other relief with respect to the directed disclosure.
12. Nonsolicitation
Each party agrees that it will not, during the term of this Agreement and
for a period of twelve (12) months thereafter, directly or indirectly solicit,
interfere with, or entice away from the other party any employee or independent
contractor of such other party, or attempt to do so.
13. Ownership; Proprietary Rights
13.1. Paragon. As between the parties title to the Products and any and
all other products, trade secrets and other proprietary information of Paragon
and all copies of all or any portion thereof, all proprietary rights therein and
thereto, and all related intellectual property rights, shall remain with
Paragon. Licensee shall reproduce and include in all permitted copies of the
Products all proprietary rights notices or legends of Paragon as they appear in
the original from which the copies were made. Licensee shall not remove, cover,
alter, or obfuscate any copyright notices or other proprietary rights notices
placed or embedded by Paragon on or in the Products. Licensee shall not have a
right to, and shall not, modify, translate, adapt or create derivative works
based on any Product, or merge any Product into any other program or materials.
Licensee agrees not to, directly or indirectly, decompile, disassemble, reverse
engineer or otherwise attempt to discover the source code or underlying ideas or
algorithms of any Product. License shall not copy (except as otherwise permitted
hereunder), rent, lease, distribute, assign, or otherwise transfer rights to any
Product or use any Product for the benefit of a third party.
13.2. Licensee. Nothing in this Agreement shall be construed as giving
Paragon any ownership interest of any kind whatsoever in, or any right to use,
any data or property of Licensee.
14. Technical Disabling Measures
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Licensee understands and acknowledges that Paragon may have included
instructions within the Software that will make the Software inaccessible
without an authorized password or will render the Software inoperative in
unauthorized use (including unauthorized copies), and that the Software may
become inoperative in the event any attempt is made to disable these
instructions. Licensee agrees that it will not make, nor will it permit any
other person to make, any attempts, either direct or indirect, to disable,
circumvent or otherwise render ineffective these instructions. In the event that
the Software becomes inoperative as a result of a violation of this Section 14,
Paragon's warranties set forth in this Agreement will be void with respect to
the Software and product affected, and Paragon shall be under no obligation to
restore the operability of the Software or to provide Licensee with an operable
copy of the Software.
15. Paragon Representations and Warranties; Disclaimers; Limitations of
Liability
15.1. Product Operation.
15.1.1. Warranty. As used herein, the term "Nonconformity" shall
mean a material design error, design defect, functional defect, programming
error or anomaly, virus, data error or deviation from the Documentation. For a
period of ninety (90) days commencing upon the Effective Date (the "Warranty
Period"), Paragon represents and warrants to Licensee only that the Products as
delivered to Licensee are or will be free from any Nonconformities, and will
operate substantially in conformance with the Documentation when used in full
compliance with the instructions in the Documentation.
15.1.2. Correction and Remedies. Should any reproducible
Nonconformity be detected at any time during the Warranty Period, Paragon shall,
at its sole expense, either (i) correct such Nonconformity within a reasonable
time after Licensee gives detailed written notice of such Nonconformity to
Paragon, or (ii) provide a reasonable workaround. In the event that Licensee
discovers any apparent Nonconformity, Licensee shall notify Paragon in writing,
specifying the nature of the claimed Nonconformity and the conditions in which
it arises in sufficient detail for Paragon to reproduce the Nonconformity in as
much detail as Licensee is reasonably able to provide. Licensee agrees to give
Paragon reasonable cooperation, and reasonable access to Licensee's data and/or
computer system, in connection with Paragon's reproduction of the Nonconformity
and correction thereof. If Paragon is unable to, or otherwise does not, correct
the Nonconformity or provide a workaround within a reasonable time, then
Licensee may, as its sole remedy and Paragon's sole liability, terminate this
Agreement in accordance with Sections 10.2 and 10.4 above and receive a refund
of the license fees paid by Licensee to Paragon hereunder, provided that such
refund shall not become due until Licensee has completed compliance with Section
10.4 above.
15.2. Warranty Void. The representations and warranties set forth in
Section 15.1.1 above shall be void if Licensee makes any attempt to, or does:
(i) modify any Product; (ii) access the Software from unauthorized workstations
or computers; (iii) defeat any technical protection measures embedded in the
Software; or (iv) use any Product in any other unauthorized manner.
15.3 Year 2000 Warranty. Paragon applications are year 2000 compliant and
warranted on all supported platforms including without limitation the designated
computer shown in Exhibit A. Paragon Applications store dates internally in
integer format as seconds elapsed since January 1st 1970. For external display
purposes Paragon Applications offer a long (YYYY/MM/DD) and a short date format
(YY/MM/DD). The short format is default and interprets years less than 1970 as
21st century dates. The display of the long date format is dependent on a
display parameter that can be set statically at startup or dynamically during
run-time.
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15.4. DISCLAIMERS. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 15.1.1
ABOVE, PARAGON MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, WITH RESPECT
TO THE PRODUCTS OR ANY SERVICES, AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES,
INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT. PARAGON ALSO MAKES NO WARRANTIES
REGARDING NON-INTERRUPTION OF USE OR FREEDOM FROM BUGS. LICENSEE WILL NOT MAKE
ANY WARRANTIES, EXPRESS OR IMPLIED ON BEHALF OF PARAGON TO ANY THIRD PARTY
RELATING TO THE PRODUCTS OR ANY SERVICES. FURHTERMORE LICENSEE SHALL NOT HAVE
THE RIGHT TO PASS THROUGH ANY WARRANTIES MADE HEREUNDER.
15.5. No Combination Claims. Notwithstanding anything to the contrary
contained in this Agreement, Paragon shall not be liable to Licensee for any
claim of any kind arising from or based upon the combination, operation or use
of any Product with any other equipment, data or programming not supplied or
specified by Paragon, as set forth in Exhibit A or arising from problems
peculiar to Licensee's computer system configuration, or arising from any
alteration or modification of any Product not performed by Paragon.
15.6. LIMITATION OF PARAGON LIABILITY; EXCLUSION OF CERTAIN DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, PARAGON WILL NOT
BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I)
FOR ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE LICENSE FEES PAID TO PARAGON
HEREUNDER, OR (II) FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES.
15.7 LIMITATION OF LICENSEE LIABILITY, EXCLUSION OR CERTAIN DAMAGES. IN NO
EVENT SHALL LICENSEE BE LIABLE TO PARAGON FOR ANY SPECIAL, LIQUIDATED, PUNITIVE,
CONSEQUENTIAL OR REPLACEMENT DAMAGES.
16. Indemnification
16.1. Indemnification By Paragon. If any alleged infringement of a U.S.
patent, copyright, trademark or misappropriation of a trade secret is asserted
by a third party against Licensee based upon its use of the Products, Licensee
will not be liable for and Paragon will indemnify, and hold Licensee harmless
against any loss, damage or amounts finally awarded by a court or in a
settlement to such party (and reasonable attorneys' fees and costs in connection
therewith), provided that Paragon shall have received from Licensee notice of
said claim within ten (10) days of Licensee's receipt of such claim; further
provided that Paragon shall have the right, if it so chooses, to control and
direct the investigation, defense, or settlement of such claims; and further
provided that Paragon shall receive the reasonable cooperation and assistance of
Licensee. In the event an infringement is determined or, if required by
settlement, Paragon may substitute for a Product a substantially similar
product, or, alternatively, Paragon may procure for Licensee the right to
continue using the Product, so as eliminate the infringement.
16.2. Correction and Remedies. In the event that any Product is, or in the
reasonable judgment of Paragon is likely to become, the subject of any legal
action based upon a claim of infringement, Paragon may demand that Licensee
cease to use such Product until and unless there is a final judgment or other
final resolution establishing Paragon's right to continue using the Product. In
the event that Licensee ceases to use the Product as a result of any legal
action or threatened legal action upon Paragon's demand (a "Cessation"), Paragon
shall (i) modify the Product so as to
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eliminate the infringement, (ii) procure the right for Licensee to use the
Product, or (iii) provide Licensee with functionally equivalent software to use
in place of the Product, so as to eliminate the infringement. In the event that
Paragon is not able to achieve any of the foregoing in a commercially reasonable
manner or at a commercially reasonable cost, in Paragon's reasonable discretion,
then except for Paragon's indemnification obligation provided in Section 16.1
above, Licensee's sole remedy, and Paragon's sole liability, with respect to a
Cessation and/or with respect to any infringement by a Product, shall be to
terminate this Agreement in accordance with Sections 10.2 and 10.4 above and
receive a refund of the unamortized portion of the license fees paid by Licensee
to Paragon hereunder, based upon three-year straight-line depreciation
commencing upon the Effective Date, provided that such refund shall not become
due until Licensee has completed compliance with Section 10.4 above.
16.3. Indemnification By Licensee. Paragon shall not be liable for, and
Licensee, at its sole expense, will defend, indemnify and hold Paragon harmless
from and with respect to, any loss or damage (including reasonable attorneys'
fees and costs) incurred in connection with, any suit or proceeding brought by a
third party against Paragon insofar as such suit or proceeding shall be based
upon:
(i) any claim incident to an infringement not resulting primarily
from the Products (including any claim under any theory of
product liability with respect to any product of Licensee or
any component thereof);
(ii) any claim with respect to the use of the Products not strictly
in accordance with this Agreement;
(iii) any claim arising out of or relating to any act or omission of
Licensee;
(iv) any claim with respect to the Products or portions or
components thereof modified after shipment by Paragon to the
extent the alleged infringement results from such
modification, or combined with other products, processes or
materials; or
(v) Any claim where the allegedly infringing activity continues
after Licensee is notified thereof and informed of
modifications that would have avoided the alleged
infringement,
provided Paragon gives Licensee prompt written notice within ten (10) days of
any such claim and provides Licensee such reasonable cooperation and assistance
as Licensee may request from time to time in the defense thereof. Licensee shall
pay any damages and costs assessed against Paragon (or paid or payable by
Paragon pursuant to a settlement agreement) in connection with such a suit or
proceeding, provided Paragon has given Licensee prompt written notice within ten
(10) days of such claim. Licensee shall have the right, if it chooses, to
control and direct the investigation, defense, or settlement of such claims.
17. Notices
Except as specifically provided herein, all notices required hereunder
shall be in writing and shall be given by: (i) personal delivery, in which case
notice shall be deemed effective upon personal delivery; or (ii) national
overnight courier service, in which case notice shall be deemed effective one
(1) business day following deposit with the national overnight courier service;
or (iii) U.S. mail, certified or registered, postage prepaid, return receipt
requested, in which case notice shall be deemed effective three (3) days
following deposit in the U.S. mail. The addresses for
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giving notice shall be the parties' respective addresses first set forth above,
or any other address as shall be specified by a party in a written notice to the
other party.
18. Miscellaneous
18.1. Entire Agreement. This Agreement (including all the exhibits hereto)
constitutes the entire understanding and agreement between the parties hereto
and supersedes any and all prior or contemporaneous representations,
understandings and agreements between Licensee and Paragon with respect to the
subject matter hereof. This Agreement shall not be modified, amended or in any
way altered except by an instrument in writing signed by an officer of Paragon
and by Licensee.
18.2. Amendments. All amendments or modifications of this Agreement shall
be binding upon the parties so long as the same shall be in writing and executed
by the parties hereto in accordance with the other terms of this Agreement
regarding modifications.
18.3. Waiver. No waiver of any provision of this Agreement or any rights
or obligations of either party hereunder shall be effective, except pursuant to
a written instrument signed by the party or parties waiving compliance, and any
such waiver shall be effective only in the specific instance and for the
specific purpose stated in such writing.
18.4. Paragon Right To Publicly Identify Licensee As User. Paragon shall
have the right to make reasonable reference to Licensee as a user of the
Products in communications between Paragon and individual customers or potential
customers and in public communications such as advertising, promotional
materials and press releases.
18.5 Cooperation and Assistance. Licensee agrees to give Paragon
reasonable cooperation, and reasonable access to Licensee's data and/or computer
system, in connection with Paragon's performance of its obligations under this
Agreement. Without limiting the generality of the foregoing, Licensee will
furnish to Paragon upon Paragon's reasonable request: (i) listings of output and
any other data that Paragon may require or request in order to reproduce any
problem and the operating conditions under which such problem occurred; and (ii)
information concerning Licensee's use of a Product and concerning Licensee's
operating, manufacturing and user environment.
18.5A Exclusivity. Paragon agrees not to license the Software to Xxxx
Inc., Mastercraft, Main Street Textiles L.P., Xxxx Fabrics Corp. or any of their
subsidiaries for a period of six (6) months from the Effective Date of this
Agreement.
18.6. No Assignment by Licensee. Licensee may not assign or transfer this
Agreement or any of its rights, duties or obligations hereunder and this
Agreement may not be involuntarily assigned or assigned by operation of law,
without the prior written consent of Paragon, which consent may be granted or
withheld by Paragon in its sole discretion, but with such consent of Paragon not
to be unreasonably withheld. The sale or transfer of any portion of Licensee's
business (including to any corporation owning, owned by or affiliated with
Licensee), or the combination of any of Licensee's business with any other
business (including with any corporation owning, owned by or affiliated with
Licensee), shall be considered an assignment for purposes of this Agreement and
subject to the prohibition set forth in this Section 18.6. Any attempted
assignment without such consent shall be null and void. Paragon shall have the
unrestricted right to assign or transfer this Agreement or any interest herein
(including rights and duties of performance). This Agreement shall be binding
upon and inure to the benefit of each of the parties hereto and their respective
legal successors and permitted assigns.
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18.7. Independent Parties. Nothing contained herein shall be deemed to
create or construed as creating a joint venture or partnership between Licensee
and Paragon. Neither party is, by virtue of this Agreement or otherwise,
authorized as an agent or legal representative of the other party. Neither party
is granted any right or authority to assume or to create any obligation or
responsibility, express or implied, on behalf of or in the name of the other
party or to bind such other party in any manner. Further, it is not the
intention of this Agreement or of the parties hereto to confer a third party
beneficiary right of action upon any third party or entity whatsoever, and
nothing set forth in this Agreement shall be construed so as to confer upon any
third party or entity other than the parties hereto a right of action under this
Agreement or in any manner whatsoever.
18.8. Severability of Provisions. In the event that any provision hereof
is found invalid or unenforceable pursuant to judicial decree or decision, the
remainder of this Agreement shall remain valid and enforceable, and shall be
enforced, according to its terms.
18.9. Force Majeure. No party hereto shall be deemed in default if its
performance or obligations hereunder are delayed or become impossible or
impractical by reason of any act of God, war, fire, earthquake, labor dispute,
accident, civil commotion, epidemic, act of government or government agency or
officers, or any other cause beyond such party's control.
18.10. Governing Law. This Agreement shall be governed by the laws and
judicial decisions of the Commonwealth of Massachusetts, and the choice-of-law
provisions of Massachusetts law shall not be applied to substitute the law of
any other State or nation, to which jurisdiction the parties submit.
18.11. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
Paragon Management Systems, Inc. Quaker Fabric Corporation of Fall River
Signature: _______________________ Signature:____________________________
Name: ____________________________ Name:_________________________________
(Please Print) (Please Print)
Title:____________________________ Title:________________________________
Date:_____________________________ Date:_________________________________
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EXHIBIT A
1. SOFTWARE
Licensee is granted a Global Site License for the following Paragon
Products :
o Supply Chain Planner SCP
o Global Strategic Planner GSP
o Global Real-time ATP GRA
o Material and Capacity Planner MCP
o Reactive and Dynamic SchedulerRDS
o Demand Planner PDP
o Real-time Event Monitor REM
o I-Collaboration Tools Java Clients and Communication
Third Party Software
No purchase of third party software is needed for the standard use of
above Paragon Applications.
2. LICENSED FACILITIES & NUMBER OF CONCURRENT USERS
Licensee has the right, subject to this License Agreement, to install any
of the above Software (on single or multiple servers) as needed at any
Licensee's locations for which Licensee holds a minimum interest of
fifty-one percent (51%) of the voting shares, without limitation on the
numbers of users or required memory size, for a three (3) year period
commencing upon the execution of this Agreement. This includes sites that
may be acquired by Licensee within the next three (3) year period but
excludes any sites of any company that may acquire Licensee
Facilities.Thereafter, additional server licenses may be purchased as
outlined below in section 3.
3. LICENSE FEES & MAINTENANCE FEES
License Fees: $700,000.00; $231,000.00 due upon signing of this License
Agreement, $231,000.00 due March 31, 2000, $238,000.00 due May 15, 2000.
Additional Software: All additional Licenses of the Software listed above
in item 1of this Exhibit A may be purchased at a thirty-five percent (35%)
discount from the then current list price, for a period of three (3) years
from the date this contract is executed. Thereafter, Licensee shall pay
for any additional servers or in facilities at the then current list
prices less a thirty-five percent (35%) discount.
Maintenance Fees and Support Period: Maintenance Fees are $105,000.00for
the first year beginning one (1) year from the effective date. Maintenance
Fees are subject to annual increases not to exceed the increase in the
Consumer Price Index for the prior annual period and shall be due at
twelve (12) month intervals thereafter. Maintenance fees on additional
Licenses will be fifteen percent (15%) of the Licensee purchase cost.
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EXHIBIT B
MAINTENANCE PROCEDURES
Software Support Policy
The Software Support Policy covers the process and procedures surrounding the
correction of defects and management of enhancements to the existing release of
the software. The policy is structured so that the customer is given the highest
level of responsiveness possible, while still maintaining a quality release, and
efficiency in bringing new features to the market place. The policy is divided
into software defect support and software enhancement support.
Software Defect Support
Software Defects are reported and categorized into one of five categories by the
user. As progress is made on the problem or as an implementation proceeds, the
category will be changed. The problems are classified as follows:
Category 1 - Production system crashes or no work around is available to out of
production system problem.
Category 2 - Implementation system crashes or no work around is available to key
implementation feature or function. Production system problem has temporary work
around available, but is affecting the performance of the system.
Category 3 - Implementation system has functionality not working, but temporary
work around exists. Production system has satisfactory work around.
Category 4 - Functionality not working, but satisfactory work around exists for
key features.
Category 5 - Functionality not working, but satisfactory work around exists for
features that has alternative features available, or is not key to business
process.
Category 1
Defects are called into the support center and immediately reported to the
Director of development responsible for the particular area of the product. The
support center will instruct and help the client prepare the problem report and
test model that shows the defect. The problem is worked on during the current
workday. The support staff with the help of R&D staff works to determine a
software work around. Once a work around is determined the problem is
reclassified. If no workaround is possible with the installed software, then the
problem remains a level 1 bug and a software fix is released in the current
version of the software as soon as it can be determined and corrected. Releases
can be sent to the customer by FTP.
Category 2
Defects are given to the R&D support staff for corrective action as soon as the
supporting documentation and sample defect model are received. If the defect is
not corrected in three (3) days the problem is elevated to the attention of the
R&D Development Director. Once a correction has been determined and made in the
software, it is released in the current release as soon as possible to the
customer. Releases can be sent to the customer by FTP.
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Category 3
Defects are addressed by the support desk in three (3) working days to see if an
alternate work around or feature is available. After receipt of the defect
report and sample model, the defect is scheduled with the R&D department to be
corrected at a time that will not impact the production environment or
implementation. If the correction schedule for the defect is not met the R&D
Director is notified. The release is sent to the customer in the current
version, when a bug fix release is scheduled. The release date is driven based
on all defects Category 3 or higher.
Category 4 and Category 5
The support desk logs in the defect report along with the sample model. The R&D
staff corrects the defects in a future release. The defect is scheduled based on
the workload of the R&D department and the impact of the defect. The defect
correction is made available in the next production release after it is
corrected.
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