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EXHIBIT 10.20
ICHAT, INC.
SOFTWARE LICENSE AGREEMENT
THIS IS A LICENSE AGREEMENT AND NOT AN AGREEMENT FOR SALE.
This Software License Agreement ("Agreement") is entered into as of 2/28,
1997, between ichat, Inc., a Texas corporation, with its principal place of
business at 0000 Xxxxx Xxxxx Xxxxxxxxxx, Xxxxx X000, Xxxxxx, Xxxxx 00000
("ichat, Inc."), and DIDAX INC. 0000 Xxxx Xxxxx Xxxxx 000 Xxxxxxxxx, XX 00000
Whereas, ichat, Inc. owns, or has licensed from the owner(s), copyrights and
other rights in ichat, Inc.'s software products ("Software") and associated
documentation provided by ichat, Inc. under this Agreement and listed on
Attachment A hereto; whereas, Licensee desires to receive a non-exclusive
license to use such Software as provided below; and whereas, ichat, Inc. is
willing to grant such non-exclusive license to Licensee on the terms and
conditions set forth below; the parties agree as follows:
1. License Grant. Subject to the terms of this Agreement, ichat, Inc.
grants Licensee a non-transferable, non-sublicensable, non-exclusive license
to use the Software (i) on multiple file servers at the Licensed Site specified
on Attachment A and (ii) only in accordance with the applicable user
documentation provided by ichat, Inc., for access by persons who are authorized
to directly access that server through Licensee's Web site. This license and
the terms and conditions of this Agreement shall extend to any upgrades or new
versions of the Software provided to Licensee.
2. Restrictions. Under no circumstances shall Licensee (a), (b), (c) make
any copies of the Software, except for one copy solely for back-up purposes,
(d) modify, or create a derivative work of the Software, (e) provide, rent, or
lease the Software to any third party, (f) reverse engineer, decompile,
disassemble or otherwise attempt to reconstruct or discover any source code,
underlying ideas, algorithms, file formats or programming interfaces of the
Software or allow any other party to do the same, or (g) remove any product
identification, copyright or other notices from the Software or associated
documentation. Any copies of the Software made in violation of this Agreement
shall be deemed copyright infringement.
3. Ownership of Software. As between the parties to this Agreement,
ichat, Inc. retains title to and ownership of and all proprietary rights with
respect to the Software, any accompanying printed materials and all copies and
portions thereof. The Software and accompanying printed materials are protected
by copyright, trademark and trade secret laws and international treaty
provisions. The Software is licensed and not sold.
4. Payment. Upon execution of this Agreement or commencement of any
renewal term, Licensee shall pay the annual license fees for the Software set
forth in Attachment A hereto. All payments shall be made in U.S. dollars in the
United States. All such license fees are exclusive of shipping, taxes, duties
and the like, which shall be paid by Licensee. All late payments shall be
assessed a service charge of 1.5% per month, to the extent allowed by law.
5. Customer Support. ichat, Inc. shall provide telephone and email
support service to Licensee during ichat, Inc.'s normal business hours (8am to
6pm CST, Monday through Friday) for answering questions regarding the Software.
Support shall include at no additional charge to Licensee improvements and
upgrades to the Software that ichat, Inc. regularly provides to its other
customers. Licensee shall designate an individual employee of Licensee as
license administrator in connection with this Agreement ("License
Administrator"). All telephone or written contact with ichat, Inc. shall be
performed by the License Administrator. Licensee shall notify ichat, Inc. in
writing promptly upon a change of the designated License Administrator.
6. Confidentiality. Licensee agrees that the Software and all code,
inventions, algorithms, know-how and ideas it obtains from ichat. Inc. and all
other business, technical and financial information it obtains from ichat, Inc.
are the confidential property of ichat, Inc. and its licensors ("Proprietary
Information"). Except as expressly and unambiguously allowed herein, Licensee
will hold in confidence and not use or disclose any Proprietary Information and
shall similarly bind its employees in writing. Licensee's nondisclosure
obligation shall not apply to information it can document is generally
available to the public (other than through breach of this Agreement).
7. Term and Termination.
a. Term of Agreement. This Agreement and the license granted herein
shall be effective from the date of this Agreement. The term of this Agreement
and the license shall run for one (1) year after ichat, Inc. first ships the
Software, unless and until terminated as provided in this Section. The term may
be extended annually for additional one (1) year periods upon payment by
Licensee of the appropriate, then current annual license fees, unless ichat,
Inc. gives Licensee notice of termination thirty (30) days
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before expiration of the current term. In addition, the license may be
terminated as provided below in this Section; however, upon termination, the
terms of this Agreement, except for Sections 1 and 5, will otherwise survive
and remain in effect.
b. Termination by Licensee. Upon termination by Licensee for any
reason, Licensee will cease all use of the Software and destroy or return to
ichat, Inc. the Software and all documentation and copies thereof to ichat,
Inc. along with a signed written statement expressing Licensee's desire to
terminate the license and certifying that Licensee has destroyed or returned to
ichat, Inc., and is no longer in possession of, any Software, related
documentation or any copies, portions or derivatives of any of the foregoing.
c. Termination by ichat, Inc.. ichat, Inc. may immediately terminate
this Agreement immediately upon the occurrence of any of the following events:
(1) if Licensee ceases to do business, or otherwise terminates its
business operations; or
(2) if Licensee shall fail to promptly secure or renew any license,
registration, permit, authorization or approval necessary for the conduct of
its business in the manner contemplated by this Agreement, or if any such
license, registration, permit, authorization or approval is revoked or
suspended and not reinstated within thirty (30) days; or
(3) if Licensee materially breaches any material provision of this
Agreement and fails to fully cure such breach within thirty (30) days (ten (10)
days in the case of a failure to pay and immediately in the case of a breach of
Sections 2 or 6 of written notice describing the breach; or
(4) if Licensee shall seek protection under any bankruptcy,
receivership, trust deed, creditors arrangement, composition or comparable
proceeding, or if any such proceeding is instituted against the other (and not
dismissed within ninety (90) days).
Upon such termination by ichat, Inc., Licensee will cease all use of the
Software and destroy or return to ichat, Inc. the Software and all
documentation and copies thereof to ichat, Inc. along with a signed written
statement certifying that Licensee has destroyed or returned to ichat, Inc.,
and is no longer in possession of, any Software, related documentation or any
copies, portions or derivatives of any of the foregoing.
d. Neither party shall incur any liability whatsoever for any damage,
loss or expenses of any kind suffered or incurred by the other (or for any
compensation to the other) arising from or incident to any termination of this
Agreement by such party which complies with the terms of the Agreement whether
or not such party is aware of any such damage, loss or expenses.
8. Limited Warranty and Disclaimer. ichat, Inc. warrants that for a
period of ninety (90) days from the date of Licensee's receipt of the Software
(i) the Software will perform substantially in accordance with the accompanying
printed materials and (ii) the medium upon which the Software is provided by
ichat, Inc. to Licensee shall be free from defects in material and workmanship
under normal use. This warranty covers only problems reported to ichat, Inc.
during the warranty period. WARRANTY DISCLAIMER: EXCEPT AS EXPRESSLY STATED
HEREIN, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. LICENSEE
BEARS ALL RISK RELATING TO QUALITY AND PERFORMANCE OF THE SOFTWARE. The
performance of the Software varies with various manufacturers' equipment with
which it is used. ichat, Inc. does not warrant that the Software or the
functions contained in the Software will meet Licensee's requirements, operate
without interruption or be error free. Licensee's exclusive remedy for breach
by ichat, Inc. of its limited warranty set forth above shall be replacement of
any defective Software or medium upon its return to ichat, Inc. within the
warranty period, or if ichat, Inc. is unable to provide a replacement which is
free of defect, a pro rata refund of the license fee paid by Licensee.
9. Limitation of Liability. ANY LIABILITY OF ichat, Inc. WILL BE LIMITED
TO PRODUCT REPLACEMENT OR, IF REPLACEMENT IS INADEQUATE OR IN ichat, Inc.'s
OPINION IMPRACTICAL, TO REFUND OF THE LICENSE FEE. IN NO EVENT SHALL ichat,
Inc. BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR THEORY FOR
ANY INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF
PROFITS, BUSINESS INTERRUPTION, LOSS OR INACCURACY OF INFORMATION OR COST OR
PROCUREMENT), ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN
IF ichat, Inc. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT
WILL ichat, Inc.'s LIABILITY EXCEED THE AMOUNT PAID BY LICENSEE FOR THE
SOFTWARE.
10. Government Use. If Licensee is a unit or agency of the government, or
acquiring the Software with government funds, the software and documentation
are provided subject to ichat, Inc.'s standard commercial license; provided,
however, that any
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contracts with non-defense agencies subject to the FAR, the Government shall
have the rights set forth in subparagraph (c) of FAR 52.227-19, "Commercial
Computer Software-Restricted Rights," as applicable.
11. Miscellaneous. This Agreement is not assignable, transferable or
sublicensable by Licensee without the prior written consent of ichat, Inc.; any
attempt to do so shall be void. Any notice, report, approval or consent
required or permitted hereunder shall be in writing and will be deemed to have
been effectively given: (i) immediately upon personal delivery or facsimile
transmission to the parties to be notified, (ii) one (1) day after deposit with
a commercial overnight courier with tracking capabilities, or (iii) three (3)
days after deposit with the United States Postal Service, by registered or
certified mail, postage prepaid to the respective addresses of the parties as
set forth above. The waiver by either party of a breach of this Agreement or
any right hereunder shall not constitute a waiver of any subsequent breach of
this Agreement; nor shall any delay by either party to exercise any right under
this Agreement operate as a waiver of any such right. If any provision of this
Agreement shall be adjudged by any court of competent jurisdiction to be
unenforceable or invalid, that provision shall be limited or eliminated to the
minimum extent necessary so that this Agreement shall otherwise remain in full
force and effect and enforceable. This Agreement shall be construed pursuant to
the laws of the State of Texas and the United States without regard to
conflicts of laws provisions thereof and without regard to the United Nations
Convention on Contracts for the Sale of Goods. To the extent that EC law is
applicable, the restriction on reverse engineering is limited to prohibit such
activity to the maximum extent without violating the EC Directive on the legal
protection on computer programs. The prevailing party in any action to enforce
this Agreement shall be entitled to recover costs and expenses including,
without limitation, attorneys' fees. The parties agree that a material breach
of this Agreement adversely affecting ichat, Inc.'s proprietary rights in the
Software would cause irreparable injury to ichat, Inc. for which monetary
damages would not be an adequate remedy and that ichat, Inc. shall entitled to
equitable relief in addition to any remedies it may have hereunder or at law.
Both parties agree that this Agreement is the complete and exclusive statement
of the mutual understanding of the parties and supercedes and cancels all
previous written and oral agreements and communications relating to the
subject matter of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first written above.
ichat, Inc.: LICENSEE: DIDAX INC.
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By: [SIG] By: [SIG]
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Title: CFO Title: Director of Technical Marketing
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ATTACHMENT A Page 1 of 2
ICHAT, INC., SOFTWARE AND LICENSE FEES
PROPOSAL TO DIDAX INC.
FEBRUARY 28, 1997
ANNUAL SOFTWARE LICENSE FEE
ichat, Inc. ROOMS 2.2 SERVER web-integrated, real-time communications server
with Event Moderation (EM) package built in, including threaded message boards
when available.
ANNUAL LICENSE FEES:
SIMULTANEOUS
USERS YEAR 1 YEAR 2
1000 $7,500 $7,500
As part of the Annual License Fee DIDAX will split ad revenue with ichat, Inc.
at a rate of 50% to ichat and 50% to DIDAX after expenses with a cap payment of
$20,000 in each year.
MODERATED EVENT RENTAL PRICING:
For large moderated events ichat, Inc. will open up the number of users at a
rate of $1.00 per user with a minimum rental of 1000 users. Example 2000 users
= $2000.
The ROOMS server software will be opened up for the Event one week before the
event then closed down one day after the event.
As a promotions incentive to sign a License Agreement in February this pricing
offer expires 2/28/97. This pricing will not be extended beyond this date.
PAYMENT TERMS
Net 30 Days. Delivery; Fedex ASAP
TRAINING
1 Day Class, Our Fast Start Training program is available on site to DIDAX INC.
at $1,500 per day plus travel expenses. At that time ichat will train how to
set up and configuration of the ROOMS server and how to run online moderated
events per DIDAX INC.'s specifications.
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ATTACHMENT A Page 2 of 2
ICHAT, INC., SOFTWARE AND LICENSE FEES
TECHNICAL SUPPORT. MAINTENANCE & UPGRADES
In exchange for an annual fee, DIDAX INC. will receive technical support under
ichat, Inc.'s standard support program 8:00am to 6:00pm M-F Central Standard
Time through phone in 800 # or e-mail. Access to software maintenance, upgrades
and enhancements to ROOMS server and client technology for the period of the
License Agreement.
LICENSE FOR DISTRIBUTION OF CLIENT TECHNOLOGY
ichat, Inc. will provide DIDAX INC. with the right to distribute to DIDAX
INC.'s customers and employees the ichat, Inc. client product line through
downloads or CD's at no additional charge. ichat, Inc.'s robust client product
line ensures that every potential customer can join an event using at least one
of our seven different clients available for Windows 3.1, XX, 00, Mac OS 68K,
PPC, UNIX, Netscape Navigator, Microsoft Explorer and Java. ichat, Inc.
maintains these clients with new enhancements and new releases of which DIDAX
INC. will be entitled to over the term of the license agreement.
SHOWCASE CLIENT
In exchange for the discounted pricing, DIDAX INC. will agree to appear as a
showcase client for ichat, Inc.. The duties of a showcase client include
issuing a joint press release with ichat, Inc. announcing the relationship.
Participating in an ichat, Inc., DIDAX INC. created "Success Story" after
implementation to be published by ichat, Inc. Acting as a reference site for
prospective ichat, Inc. customers.
NON-DISCLOSURE
DIDAX INC. will agree not to disclose any of the pricing terms of this proposal
or the final agreement.
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