Exhibit 10.26
AGREEMENT
This Agreement ("Agreement") is made to be effective as of January 7,
2002 (the "Effective Date"), by and between Sourcenext Corporation
("Sourcenext"), with offices at Arai Xxxxxxxx 0X, 0-0-0 Xxxxxxxx, Xxxx-xx, Xxxxx
000 XXXXX; and Acceleration Software International Corporation ("Acceleration"),
with offices at 0000 XX Xxxxxxxx Xxx 000X, Xxxxxxx, XX 00000 XXX. In
consideration of the mutual covenants contained herein, the parties agree as
follows:
1. Background. Sourcenext and Acceleration have had an ongoing relationship
whereby Acceleration has provided various products and services to Sourcenext.
The parties now desire to supercede all previous agreements and consolidate
their relationship with this Agreement, which shall cover all products and
services, and all updates, upgrades, and enhancements thereto to be provided in
object code form (or source code form, if provided by Acceleration in its sole
discretion) by Acceleration to Sourcenext at any time before the Effective Date
and up until the termination of this Agreement, including but not limited to
d-Time, Superfassst, and Webcelerator (collectively, the "Products"). It is
envisioned that in some cases Acceleration might provide end user services or
third party modules for extra fees as agreed upon on a case by case basis with
Sourcenext, which shall be over and above the payment described in Section 2
below, and such end user services or third party modules shall not be considered
part of Products.
2. Payment. In consideration of this Agreement, Sourcenext shall pay
Acceleration one hundred fifty thousand dollars ($150,000) per month for each
month that this Agreement is in force. When making payments to Acceleration,
Sourcenext may deduct all legally required taxes, withholdings, or other
set-offs, which currently is 10%. Upon execution of this Agreement, any prior
alleged amounts owed by one party to the other shall be deemed fully paid, and
the parties shall begin anew with the new payment schedule of $150,000 per month
to be paid by the 7th of every month.
3. License. Acceleration grants Sourcenext, under all of Acceleration's
intellectual property and proprietary rights, the following exclusive,
perpetual, irrevocable, royalty free, fully paid up rights for the country of
Japan: (1) to make, use, copy, modify, and create derivative works (when
possible) of the Products, (2) to publicly perform or display, import,
broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease
or lend copies of the Products, and derivative works thereof, and (3) to
sublicense to third parties the foregoing rights, including the right to
sublicense to further third parties. After termination of this Agreement, the
exclusive above will become non-exclusive. The foregoing license shall survive
any termination of this Agreement. Acceleration agrees that all Japanese names
and trademarks used in connection with the Products in Japan, including but not
limited to KYOSOKU, are the property of Sourcenext, and Acceleration hereby
assigns, and agrees to assign, all rights therein to Sourcenext.
4. Services. Acceleration shall maintain, support, enhance, and provide
services in connection with the Products as requested by Sourcenext.
5. Warranty and Indemnity. Acceleration represents and warrants that: (i) it
has the right, title and authority to enter into this Agreement and grant
the rights to Sourcenext set forth herein, and Acceleration shall not enter into
any agreement or do, or allow any third party to do, anything contrary to such
rights without prior written
approval of Sourcenext, and (ii) the Products shall not infringe any
patent, copyright, trademark, trade secret or other right of any third party.
Acceleration will indemnify, defend and hold Sourcenext harmless against all
claims, liabilities, damages, and expenses of any nature (including reasonable
attorneys' fees and costs) arising from any claim that, if true, would be a
breach of any Acceleration warranty.
6. Termination. This Agreement shall continue until terminated as set forth
herein. Either party in its sole discretion may terminate this Agreement at any
time after May 31, 2002 by giving 3 months prior written notice to the other
party. During the 3 month transition period, the obligations and
responsibilities of each party remains in full effect. In addition, either party
may terminate this Agreement if the other party defaults on any material term or
condition of this Agreement and does not cure such default within thirty (30)
days after receiving written notice thereof.
7. Miscellaneous. If any part of this Agreement shall be held invalid or
unenforceable, this Agreement shall be construed as if it did not contain such
portion, and the rights and obligations of the parties shall be construed and
enforced accordingly. This Agreement is the complete and exclusive agreement and
understanding between the parties concerning the Products, and supercedes all
previous or contemporaneous understandings, negotiations and proposals, whether
oral or written. No waiver, modification, amendment, consent or discharge in
connection with this Agreement shall be binding upon either party unless in
writing and signed by an authorized representatives of Acceleration and the
President of Sourcenext. Failure or delay on the part of any party to exercise
any right, remedy, power or privilege hereunder will not operate as a waiver. In
addition to those provisions which survive by their terms, Sections 3, 5 and 7
shall survive any termination or expiration of this Agreement. This Agreement
shall be governed by and interpreted under the laws of the State of Washington
without reference to that body of law known as conflicts of law, and the parties
consent to jurisdiction by the state and federal courts sitting in King County,
Washington. In any dispute arising out of or related to this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys fees and
costs.
INTENDING TO BE LEGALLY BOUND, the parties have executed this Agreement
to be effective as of the Effective Date.
Sourcenext Corporation Acceleration Software
International Corporation
By: /s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Xxxxxxxx Xxxxxxx Xxxxx Xxxxxxx
Date: Jan. 7, 2002 Date: Jan. 9, 2002
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