CONFIDENTIAL TREATMENT STATEMENT: CERTAIN INFORMATION HAS BEEN OMITTED FROM
--------------------------------
THIS AGREEMENT PURSUANT TO AN APPLICATION FOR AN ORDER GRANTING CONFIDENTIAL
TREATMENT TO SUCH INFORMATION. THE OMITTED PORTIONS OF THIS AGREEMENT ARE
DENOTED BY THE MARK "[CONFIDENTIAL TREATMENT REQUESTED--SEE CONFIDENTIAL
TREATMENT STATEMENT ON PAGE ONE HEREOF]" AND HAVE BEEN FILED SEPARATELY WITH
THE COMMISSION.
EXHIBIT 10.10
S0FTSENSE COMPUTER PRODUCTS INC. COMPU-TOUCH/(R)/
S0FTWARE LICENSE, SUPPORT AND EQUIPMENT PURCHASE AGREEMENT
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THIS SOFTWARE LICENSE, SUPPORT AND EQUIPMENT PURCHASE AGREEMENT (this
"Agreement") is entered into this 27th day of May, 1994, (the "Execution Date")
between SOFTSENSE COMPUTER PRODUCTS INC., a New York corporation, with its
principal place of business at 0000 Xxxxxxx Xxxxx, Xxxxx X-0000, Xxxxxxx,
Xxxxxxx 00000 (hereinafter "Softsense"), and Emro Marketing Company, a
corporation organized and existing under the laws of the State of Delaware, with
its principal place of business at 000 Xxxxxxxx Xxxxx, Xxxx, Xxxx 00000
(hereinafter "Customer"). Except as may otherwise be stated herein or as
hereafter may be agreed by the parties, this Agreement shall be deemed effective
as of August 13, 1993 (the "Effective Date"). Without limiting the applicability
of this Agreement to transactions occurring on or after the Execution Date, all
transactions of the type contemplated by this Agreement having occurred on or
after the Effective Date and before the Execution Date shall be deemed to be,
and have been, subject to the terms and conditions hereof.
NOW, THEREFORE, for and in consideration of the mutual promises,
warranties, and representations set forth in this Agreement and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. BACKGROUND. Softsense is the developer and owner of copyrighted Open
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Architecture computer programs (and associated copyrighted documentation)
operable on Open Architecture, IBM compatible microcomputer equipment, which are
designed for use in managing convenience stores and similar retail
establishments and which together are commonly referred to as Compu-Touch
Software. The purpose of this Agreement is to establish terms and conditions
which will apply, as appropriate, to the current and future licensing of Compu-
Touch Software, support of Compu-Touch Software and the purchase, staging,
support and maintenance of computer Equipment to be used in conjunction with
Compu-Touch Software.
2. DEFINITIONS. In this Agreement, the following terms shall have the
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meanings set forth below:
2.1 "Enhancement" shall mean any minor change or addition to the
Software that, when made, adds new function or improves the Software's utility,
efficiency, functional capability or application, but that does not constitute
solely an Error Correction. "Enhancement" does not include separately priced or
separately marketed computer programs, even if such computer programs are
designed to interface with the Software.
2.2 "Equipment" shall mean the computer equipment, parts and supplies
purchased from Softsense by the Customer hereunder.
2.3 "Error" shall mean any failure of the Software to conform in all
material respects to the specifications for the Software published from time to
time by Softsense and provided to the Customer.
2.4 "Error Correction" shall mean either a modification or addition
that, when made or added to the Software, establishes material conformity of the
Software to its specifications, or a procedure or routine that helps eliminate
the practical adverse effect on the Customer of such nonconformity.
2.5 "Releases" shall mean new versions of the Software, which new
versions may include both Error Corrections and Enhancements.
2.6 "Order" shall mean a Customer issued purchase order in substantial
conformity with the purchase order attached hereto and marked as Exhibit A which
when accepted by Softsense shall bind the parties hereto to the terms of this
Agreement and the terms on the face of the purchase order with respect to
Software and/or Equipment listed thereon. An Order which has been signed by
Softsense and returned to Customer or upon which Softsense has issued an invoice
to Customer or upon which Softsense has otherwise commenced performance shall be
considered accepted by Softsense ("Accepted Order"). In addition to identifying
subject Software and Equipment, the Order shall identify the applicable pricing
Addendum to this Agreement and shall detail delivery date and Customer location
for Software and/or staged Equipment. Only those terms on the face (not back) of
the Accepted Order shall be enforceable and a statement thereon shall so note.
2.7 "Software" shall mean only the Softsense developed and owned
computer programs designed for use in managing convenience stores and similar
retail establishments licensed to the Customer under this Agreement, consisting
solely of machine readable computer code for operation with Open Architecture,
IBM-compatible computer equipment. "Software" is intended to include Softsense's
copyrighted user manuals and other written materials including specifications
relating to the Software. "Software" shall also include Enhancements, Releases,
Error Corrections, modifications, revisions, conversions, upgrades, or additions
to the Software that are made available to the Customer as part of the support
services provided by Softsense hereunder. "Software" shall not include computer
programs developed by Softsense at the specific request of Customer, for use
either in conjunction with Software or otherwise, and in respect of which
Softsense and Customer have specifically agreed in writing on a case-by-case
basis that ownership rights, as between Softsense and Customer, shall be in
Customer.
2.8 "Open Architecture", in relation to Equipment and third party
hardware, shall mean that any and all components of Equipment can be replaced by
third-party hardware components which at a minimum meet the specifications and
protocols, as designated by Softsense, for the Equipment and that such
replacement components will function in a manner equal to or better than would
the Equipment in running the Software or other Open Architecture computer
program applications which are IBM compatible. "Open Architecture", in relation
to Software and other computer program applications, shall mean that the
Software or other computer programs shall be capable of operating to their
fullest potential on third-party Open Architecture IBM compatible hardware, and
components thereof, which at a minimum meet the specifications and protocols for
the Equipment which are provided to Customer pursuant to this Agreement.
3. S0FTWARE AND EQUIPMENT; ORDERING AND PAYMENT. Specific Software and
--------------------------------------------
Equipment may be ordered by the Customer under this Agreement by complying with
the ordering procedures mutually agreed upon by Softsense and the Customer,
which, at a minimum, will require Customer's submission of a signed Order to
Softsense and Softsense's acceptance thereof pursuant to Paragraph 2.6 above.
Unless otherwise agreed to by the parties, the Accepted Order shall serve to
perfect licensing of the Software at each Customer location ("Licensed Site")
listed in the Accepted Order effective as to each Licensed Site upon delivery of
the Software to such Licensed Site. Except as may otherwise be agreed by the
parties, payment terms shall be net 30 days from date of invoice but, unless
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delivery is delayed beyond that set forth in the Accepted Order at the request
or by other actions of Customer, no earlier than 10 days after delivery.
4. SOFTWARE.
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4.1 Licenses.
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4.1.1 Subject to compliance by the Customer with the terms hereof,
including payment of all license fees set forth herein, Softsense hereby grants
to the Customer, a nonexclusive, nontransferable and nonassignable (except as
permitted by Section 19), limited license to install, use and execute the
Software at each Licensed Site solely in support of the Customer's business
activities and, with respect to the Software program titled "Home Office
Application Module", to use such program at its office location(s) and, as
appropriate and as contemplated by said Software, at Licensed Sites where other
Software programs are licensed. The Customer acknowledges and agrees that a
separate license from Softsense is required for each Customer location where the
Software will be used, as designated in applicable Accepted Orders. The Customer
may make one master copy of the Software for "archival" or "back-up" purposes
only, which Customer may use with respect to any Licensed Site provided such
copy is labeled with Softsense's name and the version of the Software copied and
the label contains Softsense's copyright notices.
4.1.2 Notwithstanding the license granted in Paragraph 4.1.1, no
license is granted to the Customer to copy, reproduce or modify the Software, or
to adapt, transcribe, or merge the Software or any portion thereof, except with
Softsense's express written consent. The Customer has no right to market, sell,
sublicense, disseminate, distribute or otherwise transfer the Software or any
portion thereof, unless expressly authorized by Softsense in an Addendum to this
Agreement. The Customer shall not decompile, disassemble or reverse engineer the
Software, or attempt to do so.
4.1.3 With respect to computer programs provided by Softsense
other than the Software, and other than computer programs owned by Customer for
which no license shall be required, any right and license to use such computer
programs will be specified on the license agreement provided by the manufacturer
of such computer programs which Softsense shall cause to be issued and delivered
or transferred to Customer.
4.1.4 The licenses for Software granted to the Customer hereunder
is limited to the United States and the Software shall not be used outside the
United States without first notifying and obtaining Softsense's consent, which
consent will not be unreasonably withheld by Softsense, after taking into
consideration, among other factors, the extent of legal protection provided to
intellectual property by the country where the Customer desires to use the
Software.
4.2 SOFTWARE SOURCE CODE.
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4.2.1 Subject to compliance by the Customer with the terms hereof,
Softsense hereby grants to the Customer, a non-exclusive, nontransferable and
non-assignable (except as permitted by Section 19) limited license in the source
code versions of the Software, all protocols regarding Software and Equipment
not otherwise provided to Customer pursuant to this Agreement and all associated
documentation (collectively, the "Source Code"), for the purposes of supporting
customer's internal use of the Software licensed to Customer under Paragraph
4.1.1 hereof under those circumstances
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where Customer would be entitled to receive copies of the Source Code versions
of the Software and all associated documentation. Nothing in the limited
license granted in this Paragraph 4.1.5 shall entitle Customer to make copies of
the Software other than as may be permitted under the terms of this Agreement
without paying the appropriate license fee to Softsense or to its successors or
assigns. Customer shall be entitled to receive a copy of the Source Code version
of each Software program then currently licensed and installed at Licensed Sites
and at its office location(s) (along with any protocols and associated
documentation) only in the event that Softsense is unable or unwilling to (i)
substantially fulfill its obligations under the terms of its warranty set forth
in Paragraph 4.4.1 hereof or (ii) substantially fulfill its obligations to
provide Software support services under the provisions of Section 6 hereof
including, without limitation, Softsense's termination, pursuant to Section 11
hereof, of the Software maintenance and support provisions other than for cause,
and fulfillment of such obligations are not available from a successor or
assignee of Softsense acceptable to Customer (which acceptance shall be in
writing and which acceptance shall not be unreasonably withheld) under terms
and conditions substantially the same as set forth herein as pertains to the
fulfillment of such obligations. Upon receipt of the Source Code version of any
Software program, Customer agrees to protect same in accordance with the
provisions of Section 8 hereof, specifically taking such action as may be
reasonably required to preserve the confidential and trade secret nature of any
Source Code.
4.2.2 Until such time as Customer shall become entitled to receive
the Source code version of any or all Software licensed and installed at a
Licensed Site or at Customer's office location(s), as applicable, appropriate
Source Code versions of the Software shall be placed in escrow, at Softsense's
sole cost with an escrow agent mutually acceptable to both parties under such
terms and conditions that are in conformity with the provisions of this
Agreement and which otherwise are mutually agreeable to the parties and the
escrow agent. Within two (2) days of delivery of the Source Code version or
versions of the Software (including any protocols or associated documentation
and any modifications or upgrades to the Source Code, protocols or associated
documentation) to the escrow agent, Softsense shall notify Customer in writing
as to which Source Code version or versions have been so delivered. Customer may
confirm delivery of the Source Code version or versions to the escrow agent by
any reasonable means at Customer's sole cost and expense; provided, however that
confirmation by inspection of the Source Code by Customer or its agent shall
only be with the written consent of Softsense, which consent shall not be
unreasonably withheld.
4.2.3 Customer shall be entitled to give the escrow agent a
written Notice of Instructions to Release Source Code ("Release Notice") upon
the occurrence of any event described in Paragraph 4.2.1 hereof that would
entitle Customer to receive any Source Code version or versions. Such Release
Notice shall be delivered to the escrow agent with a copy sent to Softsense. In
order for a Release Notice to be effective it must be in substantial compliance
with the following requirements:
(i) Be clearly and conspicuously labeled "Notice of Instructions to
Release Source Code";
(ii) Specifically refer to this Agreement by Execution Date and by
identification of the parties;
(iii) Specifically refer to any written escrow agreement executed in
connection herewith by Execution Date and by identifying the
parties and the escrow agent;
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(iv) Specify the nature and circumstances of the event(s) or
condition(s) described in Paragraph 4.2.1 hereof that entitle
Customer to receive the source code version or versions of the
Software;
(v) Specifically identify the Software and version or versions
thereof for which the Source Code is being sought;
(vi) Demand delivery of the relevant Source Code version or versions.
4.2.4 Customer shall provide escrow agent with evidence of Softsense's
receipt of the Release Notice, including evidence of the date of such receipt,
or, alternatively, evidence of Customer's good faith attempts to provide such
Release Notice to Softsense pursuant to the terms of Section 16 hereof when
receipt of such Release Notice is either refused by Softsense or otherwise such
Release Notice was undeliverable to Softsense. Except as may be otherwise
provided hereafter in this Section 4.2, twenty-one (21) days after the earlier
of (a) Softsense's receipt of the Release Notice, (b) the date upon which
Softsense refused receipt of the Release Notice or (c) the date upon which the
escrow agent received evidence from Customer of Customer's good faith attempt
to deliver the Release Notice to Softsense which Release Notice was
undeliverable, escrow agent shall distribute, deliver and transfer the Source
Code version or versions demanded in the Release Notice to Customer and shall
simultaneously deliver to Softsense a written notice evidencing such delivery.
4.2.5 Softsense shall have twenty-one (21) days after receipt of its
copy of the Release Notice (the "Cure Period") to use its reasonable efforts to
determine the grounds upon which Customer claims it is entitled to the demanded
Source Code version or versions and to cure any problems giving rise to the
Release Notice. To such ends, Customer shall co-operate with any reasonable
request of Softsense during the Cure Period. In the event that Softsense, in
good faith, believes it has cured or corrected the event(s) or condition(s)
allegedly giving rise to the Release Notice, Softsense shall deliver to the
escrow agent a letter specifying the cure or correction to the event(s) or
condition(s) allegedly giving rise to the Release Notice ("Cure Notice") with a
copy of such Cure Notice being sent or delivered to Customer. If upon receipt of
the Release Notice Softsense believes, in good faith, that the event(s) or
condition(s) alleged in the Release Notice giving rise to such Release Notice
did not occur or do not exist or otherwise are events or conditions that are not
sufficient to entitle Customer to receive the demanded Source Code version or
versions, Softsense shall deliver to the escrow agent, prior to the expiration
of the Cure Period, a letter stating specifically the basis and reasons for
which it believes that Customer is not entitled to the demanded Source Code
version or versions ("Objection Notice") with a copy of such Objection Notice to
be sent or delivered to Customer. In the event that Softsense has refused
receipt of a Release Notice or in the event that a Release Notice to Softsense
was undeliverable after Customer's good faith efforts to deliver such Release
Notice, the Cure Period shall commence on either the date receipt of the Release
Notice was refused or the date upon which Customer provided escrow agent with
evidence that the Release Notice was undeliverable, whichever is appropriate.
4.2.6 Notification to the escrow agent as called for in this Section 4.2
shall be either by hand delivery or by certified mail, postage prepaid, return
receipt requested. Notification to either party as called for in this Section
4.2 shall be in accordance with the provisions of Section 16 hereof. Where such
notice or notification to a party is a copy of a notice or notification to the
escrow agent it shall be delivered or mailed no later than two (2) business days
after notification has been delivered or sent to the escrow agent. Either party
may withdraw its Release Notice, Cure Notice or
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Objection Notice at any time by giving written notice of such withdrawal to the
escrow agent with a copy of such withdrawal sent to the other party. The parties
agree to act in good faith and reasonably with respect to the issuance of any
Release Notice, Cure Notice or Objection Notice and to use their best efforts to
insure that there is a justifiable basis for issuing such notices and that such
justification is reasonably set forth in such notices.
4.2.7 In the event that the escrow agent has received a Release Notice
and, in a timely manner, has received either a Cure Notice or an Objection
Notice and if neither Customer's or Softsense's notice is withdrawn within ten
(10) days of the escrow agent's receipt of the later of such notices, the escrow
agent shall immediately refer the dispute to binding arbitration as provided
herein. The arbitration proceeding shall be conducted, in accordance with the
commercial rules of the American Arbitration Association then prevailing, by a
panel of not less than three (3) arbitrators appointed by the American
Arbitration Association, at least one of whom must have substantial experience
in the field of computer software technology and licensing. The sole issue(s)
for arbitration shall be whether an event or condition giving rise to a Release
Notice has occurred, whether Customer correctly provided the escrow agent and
Softsense with the Release Notice and, when appropriate, whether Softsense
properly and timely cured or corrected the event(s) or condition(s) allegedly
giving rise to the Release Notice.
4.2.8 If the arbitrators determine that event(s) or condition(s)
giving rise to a Release Notice occurred and that Customer acted correctly in
providing the escrow agent and Softsense with copies of the Release Notice and
that Softsense did not properly and timely cure or correct the event(s) or
condition(s) allegedly giving rise to the Release Notice then the arbitrators
shall notify the parties and the escrow agent shall immediately distribute,
deliver and transfer the demanded Source Code version or versions to Customer.
Alternatively, if the arbitrators determine that the event(s) or condition(s)
allegedly giving rise to the Release Notice did not occur or that Customer did
not act correctly in providing either the escrow agent or Softsense with copies
of the Release Notice or that Softsense did properly and timely cure or correct
the event(s) or condition(s) giving rise to the Release Notice and that Customer
did not act correctly in failing to withdraw the Release Notice, then the
arbitrators shall notify the parties and the escrow agent shall not distribute,
deliver or transfer the demanded Source Code version or versions of the Software
to Customer and the Release Notice shall be deemed extinguished.
4.2.9 The decision of the arbitrators shall be final and binding on
Softsense and Customer and may be entered and enforced in any court of competent
jurisdiction by either party. Unless the arbitrator shall, for good cause,
determine otherwise, the prevailing party in the arbitration proceeding shall be
awarded reasonable attorneys' fees, expert witness costs and expenses and all
other reasonable costs and expenses incurred directly or indirectly in
connection with the proceeding after the escrow agent referred the dispute to
arbitration.
4.3 OWNERSHIP OF SOFTWARE.
---------------------
4.3.1 The Customer acknowledges and agrees that as between the
Customer and Softsense, Softsense is the owner of the Software and all portions
thereof, including all modifications, changes, Enhancements, Releases, Error
Corrections, upgrades, updates and additions, whether made by Softsense or by a
third party with Softsense's permission.
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4.3.2 The Customer acknowledges and agrees that, except for the
Customer's licenses described in Section 4.1 of this Agreement, which licenses
are not coupled with an interest, the Customer has no right, title and interest
in the Software, in any form, or in any copies thereof, including all worldwide
copyrights, trade secrets, patent rights and any other Proprietary Information
(as defined in Paragraph 8.1) and confidential information rights therein.
Additionally, the Software shall remain the property of Softsense even if the
Customer, its employees or its contractors may have contributed to the
conception of such work or helped in its development. Anything in this Paragraph
4.3.2 to the contrary notwithstanding, with respect to any computer program
developed by Softsense at the specific request of Customer, for use either in
conjunction with Software or otherwise, and in respect of which Softsense and
Customer have specifically agreed that, as between Customer and Softsense, such
computer program is owned by Customer, Softsense shall execute and deliver to
Customer any document which Customer may reasonably request to evidence such
ownership in Customer.
4.3.3 Except in the context of claims by third parties who have
established, by virtue of a final non-appealable judgment or order issued by a
court of competent jurisdiction, ownership rights to the Software or to any
specific portion thereof which are superior to those of Softsense, Customer
hereby agrees not to challenge the validity of Softsense's ownership of the
Software as well as not to challenge the copyrights or patent rights or
confidential and proprietary information rights of Softsense and the Customer
shall not otherwise impair the rights and interest of Softsense therein.
4.3.4 Nothing herein shall be construed as granting the Customer any
right, title or interest in or to the trade names or trademarks owned or used by
Softsense.
4.3.5 Nothing herein shall restrict Softsense from granting similar
rights and licenses to the Software to other individuals and entities.
4.4 SOFTWARE LIMITED WARRANTY AND DISCLAIMERS.
-----------------------------------------
4.4.1 Softsense hereby warrants to the Customer that the Software (i)
is of Open Architecture design, (ii) will conform, when shipped to the Customer,
to the product features, functionality and specifications generally published by
Softsense from time-to-time and (iii) can be loaded into, and be made
operational in, the Equipment or Open Architecture third-party hardware
components without assistance from Softsense. If Customer believes there is a
defect in the Software such that it does not meet at a minimum the product
features and functionality as ever published by Softsense, Softsense must be
notified immediately, but no later than ninety (90) days following delivery of
the Software or of any subsequent Release to the Customer. As the Customer's
exclusive remedy and the sole measure of any recoverable damages incurred by the
Customer or any third party for breach of this limited express warranty with
respect to the Software (including any subsequent Release), Softsense shall
repair or replace, at Softsense's option, the defective Software or defective
Release such that Customer is provided with Software or a Release which is not
defective. Such repair or replacement shall be at Softsense's risk and expense.
Softsense shall have no obligation under this Paragraph 4.4.1 should the
Software be modified, altered, merged or subjected to misuse, neglect, accident
or improper use by the Customer or any third party. Softsense does not warrant
that the Software will operate in conjunction with non-Softsense computer
programs not recommended or approved by Softsense.
4.4.2 THE CUSTOMER UNDERSTANDS AND AGREES THAT THE LIMITED EXPRESS
WARRANTY SET FORTH ABOVE IN PARAGRAPH 4.4.1 IS EXCLUSIVE
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AND SOFTSENSE DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY NATURE WHATSOEVER
WITH RESPECT TO THE SOFTWARE, ANY REVISIONS OR ADDITIONS TO THE SOFTWARE AND ANY
SUPPORT SERVICES PROVIDED TO CUSTOMER PURSUANT TO PARAGRAPH 6.1 OF THIS
AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, PARTICULARLY INCLUDING
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4.5 Softsense will defend the Customer against any claim that such
Software supplied infringes a United States patent or copyright and, subject to
the limitation of liability set forth in Paragraph 9.1 herein, pay all fines,
costs, damages and attorneys' fees that a court finally awards as a result of a
determination of patent or copyright infringement. To qualify for such defense
and payment, the Customer must: (i) provide Softsense with prompt written notice
of the initial claim and lawsuit relating thereto, (ii) permit Softsense the
right to defend, compromise or settle the lawsuit in the sole discretion of
Softsense (provided that Customer may participate in the defense and settlement
of any such lawsuit in the event that Softsense is unable or unwilling to
adequately defend Customer or to pay any liability that may be determined), and
(iii) provide Softsense with all available and relevant information, and with
reasonable assistance, authority and cooperation to enable Softsense to defend,
compromise or settle the lawsuit as provided herein. If such claim has occurred
or in Softsense's judgment is likely to occur, the Customer agrees to allow
Softsense, at Softsense's option and expense, to modify the Software so that it
becomes non-infringing, or to procure the right for the Customer to continue
using the Software or to substitute the Software; and if such remedies are not,
in Softsense's judgment, reasonably available, then upon written request, the
Customer will return the Software to Softsense for a credit as mutually
determined by Softsense and the Customer. The defense offered in this Paragraph
4.5 shall not apply to any claim to the extent based upon the combination,
operation or use of the Software with data or computer programs not manufactured
by Softsense. THE FOREGOING STATES THE ENTIRE OBLIGATION OF SOFTSENSE FOR PATENT
AND COPYRIGHT INFRINGEMENT WITH RESPECT TO THE SOFTWARE.
4.6 Softsense hereby warrants and represents to the Customer that
Softsense is the author of the Software and has full and exclusive right, title
and interest in the Software, including the exclusive right to grant the
licenses and rights granted herein to the Software and the Software is free and
clear of any lien, claim or encumbrance whatsoever.
4.7 The parties acknowledge that as of the Effective Date Softsense is
using Foxpro, Clipper and Microsoft C as developmental application tools in
designing the Software which is contemplated by this Agreement and that the
Software is designed to operate with Microsoft DOS and Novell LAN operational
packages. Softsense agrees to provide Customer with a minimum of six (6) months
prior written notice before it makes operational any Software or any Releases
requiring a change or upgrade to the existing operational or application
packages including, but not limited to Foxpro, Clipper and Microsoft C.
4.8 License fees associated with the license of Software will be
specified by this Agreement and detailed, by reference or otherwise, on Accepted
Orders.
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5. EQUIPMENT.
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5.1 Title to all the Equipment purchased hereunder will pass to the
Customer upon the earlier of payment to Softsense of all charges related to the
Equipment and identification of the Equipment to the Agreement or delivery of
the Equipment to Emro. Softsense shall retain a security interest in any
particular piece of Equipment until all charges due hereunder for such piece of
Equipment are paid in full. The Customer will execute any financing statements
reasonably deemed necessary by Softsense to perfect its security interest. This
Agreement shall serve as a security agreement and the customer authorizes
Softsense at Softsense's expense to file a copy of this Agreement or any
financing statements reasonably deemed necessary to protect Softsense's security
interest. Third-party peripherals delivered to Softsense for staging shall at
all times be titled in Customer and Softsense shall have the duties of a bailee
with respect to such peripherals. Without limiting the foregoing sentence,
Softsense agrees that upon delivery of third-party peripherals to Softsense's
offices, it will perform a commercially reasonable inspection to determine if
there is any evidence of damage having occurred to the peripherals while in
transit. Softsense shall advise the carrier of such damage by noting the damaged
condition of any peripheral or of the shipping container or carton on the bill
of lading at the time that Softsense signs for receipt of the peripherals.
Softsense shall advise Customer as soon as reasonably possible whenever third-
party peripherals in its custody or control are damaged.
5.2 Within a reasonable time after the Effective Date, Softsense shall
provide Customer with all specifications for any Equipment, and components
thereof, which may be contemplated for sale and purchase pursuant to this
Agreement. Specifications to be provided shall include, without limitation, PC
specifications, storage requirements, input/output interface requirements, touch
screen specifications and modem specifications. Specifications for new
Equipment, and components thereof, which come within the contemplation of this
Agreement for sale and purchase subsequent to the Effective Date shall be
provided by Softsense to Customer within a reasonable time after such Equipment
and components come within the contemplation of this Agreement. Softsense shall
notify Customer of any material changes in Equipment, including without
limitation any changes in any specifications previously provided, within a
reasonable time of such changes being made. In no event will Softsense provide
notification of Equipment changes less than ninety (90) days prior to shipment
of Equipment and Customer shall be entitled to cancel its Accepted Order for any
or all of such Equipment, and for associated Software, third-party computer
programs and related services, if any, prior to shipment if any Equipment
changes are unacceptable.
5.3 Delivery of the staged Equipment and third-party peripherals will
be made in accordance with the Accepted Order therefor and the Equipment and
third-party peripherals will be delivered to the Customer's location set forth
in the Accepted Order. Softsense shall make all shipping arrangements, subject
to Customer's right to approve the carrier, but shall invoice Customer for
shipping charges. Softsense assumes all risk of loss, damage and destruction to
the Equipment prior to delivery of the Equipment to the Customer, regardless of
the carrier.
5.4 Softsense warrants that it is authorized to sell and transfer title
of any Equipment (including authorization to assign any licenses for any
associated computer programs not part of the Software) delivered to Customer
pursuant to this Agreement and to any Accepted Order. Softsense shall assign to
Customer any licenses, as well as any warranties of title and rights of
indemnification for claims of patent or copyright infringement, which Softsense
may have respecting the Equipment and any associated computer programs. In the
alternative, Softsense shall use reasonable efforts to cause the
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manufacturers, suppliers or owners, as appropriate, of the Equipment and any
associated computer programs to convey to Customer appropriate licenses,
warranties of title and indemnifications. In the event of any claim against
Customer by any third party based on infringement of any patent or copyright,
Softsense shall cooperate with any reasonable request from Customer for help and
support in Customer's defense of such claim or in Customer's efforts to obtain
recourse from the manufacturers, suppliers or owners, as appropriate, of the
Equipment and any associated computer programs. Except as stated in this
Section 5.4, for any Equipment and any associated computer programs not part of
the Software, Softsense shall have no obligations or liability to the Customer
for any claim that the Equipment or such computer programs infringe a United
States patent or copyright. The Customer's sole recourse will be against the
manufacturer of such Equipment or computer programs to the extent that the
manufacturer assumes any responsibility for patent or copyright infringement.
This Paragraph 5.4 states Softsense's entire obligation regarding patent and
copyright infringement with respect to the Equipment and computer programs other
than the Software.
5.5 Equipment Warranties.
--------------------
5.5.1 Softsense, under its Equipment Warranty Plan, warrants all
Equipment against defects in material and workmanship and against malfunction or
non-fuction for one (1) year from the beginning of Live Operation of the
Equipment at the Customer Location set forth in the Accepted Order. "Live
Operation" shall mean that point of time at which the Equipment is successfully
used on an ongoing basis in conjunction with the Software as part of Customer's
Point of Sale system in the selling of convenience store and motor fuel
products. The Equipment Warranty Plan shall not apply to consumable parts or
supplies which are used up or which wear out in the normal day-to-day operation
of the Equipment (receipt printer paper, ribbons etc.) in the time frame which
such parts and supplies would be reasonably expected to be consumed.
Malfunctioning Equipment or damage to Equipment caused by the following
circumstances may not be considered by Softsense as qualifying for coverage
under the Equipment Warranty Plan:
(i) Failure to operate continually the Equipment in an operating
environment similar to current Emro operations;
(ii) Use of the Equipment other than for purposes contemplated by
Softsense as generally described in materials published by Softsense
respecting the Compu-Touch System;
(iii) Accident, disaster (including flood, fire and lightning) or
transportation;
(iv) Alteration by the Customer or any third party other than Softsense;
and
(v) Misuse or abuse of the Equipment or Customer's failure to properly
fulfill any maintenance requirements for which the Customer may be
responsible.
5.5.2 Under this Equipment Warranty Plan, Softsense will:
(a) Work with the Customer Employees at Customer's Licensed
Sites and/or home office help desk to determine failing Equipment components.
(b) Provide support for third-party computer programs
associated with the Equipment and provided by or through Softsense at the time
the Equipment is delivered to Customer. Such support shall not include providing
new Releases of such programs nor providing Error Corrections
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or Enhancements which would not be permitted by the manufacturer or owner of
such third-party programs.
(c) Accept failing Equipment components from Customer. (All
costs associated with delivering failing Equipment to Softsense's Atlanta office
shall be the responsibility of Customer.)
(d) Repair or replace the failing Equipment component (at its
own discretion), and provide replacement Equipment to Customer using standard
overnight shipment methodology in Severity Level 1 and Severity Level 2
problems, and three day shipping methodology for problems other than Severity
Level 1 or Severity Level 2. Severity levels as used herein are as defined in
Paragraph 6.1 hereof. With respect to any particular Equipment defect or
malfunction covered under the Equipment Warranty Plan, Customer and Softsense
will assign a Severity Level in accordance with the schedule set forth in
Paragraph 6.1 hereof.
(e) Pay for all costs associated with delivering the repaired
or replaced Equipment to the Licensed Site.
5.5.3 Customer shall have options to enroll in the Equipment
Warranty Plan described in Paragraphs 5.5.1 and 5.5.2 above for four additional
one-year periods after the original Equipment Warranty Plan has expired.
Customer may exercise each option for coverage under such Extended Equipment
Warranty Plan by giving written notice to Softsense of its desire for continual
coverage for an additional period prior to the end of any current Equipment
Warranty Plan period. Should Customer fail to timely exercise its option to
enroll in the Extended Equipment Warranty Plan for any particular period, its
option to enroll in any subsequent Extended Equipment Warranty Plan period shall
be terminated.
5.5.4 In consideration for Softsense providing Extended Equipment
Warranty Plan coverage hereunder, Customer agrees to pay a monthly Extended
Equipment Warranty Plan fee equal to .625% (based on an annual percentage of
7.5%) of the total charges paid or to be paid by the Customer for each Equipment
item (excluding costs of staging, shipping and any taxes which Customer may have
paid pursuant to Paragraph 23.4 hereof) for which Extended Equipment Warranty
Plan coverage applies. To the extent the Customer purchases additional Equipment
items for which it desires to receive Extended Equipment Warranty Plan coverage,
the monthly support fee will be recalculated based upon the new total charges
paid or to be paid by the Customer for Equipment items (excluding costs of
staging, shipping and taxes which Customer may have paid pursuant to Paragraph
23.4 hereof) qualifying for Extended Equipment Warranty Plan coverage. Extended
Equipment Warranty Plan fees will be invoiced in advance by Softsense on a
monthly basis as of the beginning of each calendar month that the Extended
Equipment Warranty Plan is in effect. The Customer shall pay all invoiced
amounts according to the terms specified therein, which will be at least net 30
days. For any Equipment item which qualifies for coverage under the Extended
Equipment Warranty Plan and which is installed by the Customer for a period of
twelve months or more, the Extended Equipment Warranty Plan fee associated with
such Equipment item may be adjusted by Softsense on the 1st day of February of
each year based on the change up or down in the United States Producer Price
Index For All Commodities (1982=100) as published by U.S. Department of Labor -
Bureau of Labor Statistics or successor index, in each case measured by
Softsense on January 1 as compared with January 1 of the previous year.
5.5.5 If the Customer fails to pay any Extended Equipment Warranty
Plan fees due hereunder for any reasons other than due cause, Softsense has the
right to suspend or terminate
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Extended Equipment Warranty Plan coverage or any part thereof but only after
Softsense has given Customer thirty (30) days prior written notice and then only
if Customer has not made payment of all past due extended Equipment Warranty
Plan fees.
5.5.6 In addition to any warranties extended to Customer by
Softsense under this Section 5.5 hereof, to the extent that the Equipment and
any associated computer programs are covered by warranties against defects,
malfunction or non-function from the manufacturer or supplier of such Equipment
and associated computer programs which warranties are broader in scope or
duration than the warranties extended by Softsense herein, Softsense agrees to
use reasonable efforts to obtain the benefits of such warranties for Customer
including, where permitted, the assignment by Softsense to Customer of any
applicable warranties that have been extended to Softsense. The issuance of
similar warranties by the manufacturer or supplier directly to Customer will
relieve Softsense from any obligation to secure for Customer the benefits of
warranties that have been extended to Softsense.
5.6 Charges associated with the purchase of Equipment will be
specified by this Agreement and detailed, by reference or otherwise, on Accepted
Orders.
5.7 Nothing in this Agreement shall be construed as an obligation
on Customer's part to purchase Equipment for any reason including, without
limitation, in order to be entitled to purchase Software or licenses therefor or
in order to run Software.
6. S0FTWARE SUPPORT SERVICES.
-------------------------
6.1 For each Software program licensed and installed at a Licensed
Site, Softsense will provide the following maintenance and support services:
(i) 24-hour toll-free remote assistance via telephone and/or modem;
(ii) All Enhancements and Releases to the Software to which the
support services apply;
(iii) All Software specifications and all documentation concerning
transmission file layouts, database file layouts, protocols
between any and all peripheral devices, and Software related
information which Customer may require to effectively support its
locations;
(iv) Training materials for all Software including, without
limitation, Quick Reference Guides, Prevention Maintenance
Guides, Trouble Shooting Guides, User Manuals and System Manuals
as any of such may be available from time-to-time;
(v) Periodically published newsletters (Compu-News and Touch-Talk);
(vi) Access to Softsense personnel during normal business hours via
electronic mail;
(vii) Correction of verifiable and reproducible Errors when reported to
Softsense by the Customer; and
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(viii) Reports respecting all calls made to Softsense's help desk including,
without limitation, number of calls, date and time of calls,
identification of Licensed Sites for which calls were received and
services provided in respect of such calls, such reports to be made
to Customer no less frequently than each calendar quarter.
After verifying an Error, the Customer will be responsible for logging the
Error, for notifying Softsense immediately of such Error by facsimile
transmission to Softsense a Compu-Touch Change Request form (a copy of which is
attached hereto as Exhibit B) setting forth appropriate details respecting the
Error, and for providing sufficient documentation, if available, to Softsense
via the 24-hour toll free remote assistance hot line or via electronic mail in
order for Softsense to reproduce the alleged Error. If the Error is verified,
the Customer and Softsense will assign a Severity Level to the verified Error in
accordance with the schedule set forth below. Thereupon, Softsense will use
reasonable diligence to attempt to provide the Customer with a fix/Error
Correction of the verified Error by providing the Customer with the corrected
computer program code in accordance with the response time designated below for
each Severity Level. In the event that the verified Error is not valid,
Softsense shall notify the Customer promptly with its rationale for such a
determination.
Severity Level Definitions
--------------------------
SEVERITY 1 -
The Customer is unable to use the Software and/or the Equipment and the
problem, in Customer's reasonable determination, results in a critical
impact on the Customer's operations consisting of, but not limited to,
Customer's inability to sell fuel and/or other merchandise or inability to
close a shift, site controller inoperability or system error message or, in
connection with Customer's monthly closeouts, Customer's inability to
transmit Daily Sales Reports or otherwise report correctly at the end of
any calendar month for any day of that month.
SEVERITY 2 -
The Customer is able to use the Software and/or the Equipment but, in
Customer's reasonable determination, Customer is severely restricted in
doing so including, but not limited to, Customer's inability to receive
merchandise or to transmit Daily Sales Reports or otherwise report
correctly (except that Customer's inability to transmit Daily Sales Reports
or otherwise report correctly in connection with Customer's monthly
closeouts shall be a Severity Level 1 Error, as provided above), Customer
being limited to only one POS or Customer's back office down, the failure
of credit card interface or intermittent system lock up or failure.
SEVERITY 3 -
The Customer is able to use the Software and/or Equipment with limited
functions which limitations, as determined by Customer, are not critical to
the Customer's overall operations.
SEVERITY 4 -
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There is no impact to running the Software.
Softsense shall respond to a verified Error based on the Severity Level as
follows:
SEVERITY 1 -
Softsense shall use its best efforts to provide an emergency fix or bypass
to allow the Customer to become operational within twenty-four (24) hours
of Softsense's receipt of notice of the verified Error. The Customer will
provide user data when possible.
SEVERITY 2 -
Softsense will provide an emergency fix or bypass within seventy-two (72)
hours of Softsense's receipt of notice of the verified Error, with an Error
Correction due to the Customer within five (5) days of such receipt.
SEVERITY 3 -
Softsense will provide an Error Correction to the Customer within forty-
five (45) days of Softsense's receipt of notice of the verified Error.
SEVERITY 4 -
Softsense will provide an Error Correction at times mutually agreeable to
Softsense and the Customer.
Support services for Software licensed hereunder will be deemed initiated as of
the date of delivery of the Software to the Licensed Site specified on the
applicable Accepted Order.
6.2 Support services provided by Softsense under this Agreement are
subject to the following limitations:
(a) Software defects or abnormal operation of the Software
resulting from the Customer's misuse or improper use of the Software or
Equipment, or from combining or merging the Software with any computer equipment
not meeting the specifications provided by Softsense for the Equipment or
computer programs not supplied by Softsense (or not approved by Softsense to be
combined or merged with the Software) may not be considered Errors by Softsense
for which maintenance and support services will be provided at no additional
charge hereunder.
(b) Softsense shall be responsible for providing support services
for any version of a Software program that Customer may choose to use in its
operations; provided, however, that Softsense's responsibility for support
services for any particular version of a Software program shall not extend
beyond five (5) years from the date that the next version of such Software was
available to Customer. Customer will endeavor to use the most recent Release so
long as its use is compatible with Customer's business objectives.
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(c) The Customer acknowledges that unless it provides an
operational telephone line tied into a modem, Softsense will be unable to
provide remote modem assistance.
(d) Additional support services requested by the Customer
(including custom development of computer programs) may be provided by Softsense
for an additional fee mutually agreed upon by the Customer and Softsense.
6.3 Except as may pertain to Error Corrections or Enhancements that are
made and installed by Softsense in response to Severity Level 1 situations,
Customer shall have the right to test and verify any version of the Software and
all changes to the Software before such versions of or changes to the Software
are distributed to and installed at any Customer locations. The foregoing
notwithstanding, Softsense will ensure that each Enhancement, Error Correction
and Release provided by Softsense and installed at any Licensed Site will not
cause loss of any then existing functionality nor any loss of Open Architecture
capability.
6.4 In consideration for Softsense providing Software support services
hereunder, the Customer agrees to pay a monthly support fee equal to 1.25%
(based on an annual percentage of 15%) of the total one-time license fees paid
or to be paid by the Customer for each copy of each Software program currently
licensed and installed by the Customer. To the extent the Customer licenses and
installs additional Software, the monthly support fee will be recalculated based
upon the new total one-time license fees paid or to be paid by the Customer.
Support service fees for each Software program will be invoiced in advance by
Softsense on a monthly basis as of the beginning of each calendar month
commencing with the use of the Software in Live Operation as that term is
defined in Paragraph 5.5.1 above. The Customer shall pay all invoiced amounts
according to the terms specified therein, which will be at least net 30 days.
For any Software program which is licensed and installed for a period of twelve
months or more, the support fee associated with such Software program may be
adjusted by Softsense on the 1st day of February of each year based on the
change up or down in the United States Producer Price Index For All Commodities
(1982=100) as published by the U.S. Department of Labor - Bureau of Labor
Statistics or successor index, in each case measured by Softsense on January 1
as compared with January 1 of the previous year.
6.5 CUSTOMER'S HELP DESK AND CREDIT HOURS.
-------------------------------------
6.5.1 It is the understanding of Softsense that Customer intends to
staff and maintain its own help desk which will be accessible to all of
Customer's store employees. The purpose of this help desk will be to provide
first 1ine support for Software and Equipment related questions and problems.
Customer shall identify to Softsense, from time to time, those of Customer's
help desk representatives and certain other of Customer's Computer Services
Organization personnel ("Authorized Representatives") who shall be entitled to
contact Softsense directly to initiate, monitor and otherwise be involved in,
from Customer's side, Softsense's Software maintenance and support service and
Softsense's Equipment Warranty Plan (including Extended Equipment Warranty Plan)
support and repair and replacement service. Customer's store employees will be
instructed to contact Customer's help desk for Software support and assistance
and with respect to any Equipment problems before any support is sought from
Softsense on any particular question or problem. In no event shall any of
Customer's employees, except Authorized Representatives, initiate Software
support service or Equipment Warranty Plan service directly from Softsense or
otherwise be in direct communication with Softsense support service personnel
regarding Software or Equipment support or service without the approval of one
of Customer's
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Authorized Representatives and only after appropriate arrangements are made by
such Authorized Representative with Softsense support service personnel.
Procedures for providing Software support and Equipment Warranty Plan support
and service shall hereafter be agreed to, from time to time, by Softsense and
Customer's Manager of Computer Services, with respect to general procedures, and
by Softsense and the appropriate Customer Authorized Representative(s), with
respect to any particular question or problem, with such procedures in all
events to be in conformity with the requirements and provisions of this
Agreement.
6.5.2 For so long as Customer maintains a help desk as described
hereinabove, Softsense will provide credit hours to Customer which Customer may
use to have Softsense: (a) consult with Customer or vendors of Customer on
matters within the expertise of Softsense which would not be considered Software
maintenance and support services as described in Paragraph 6.1 above, (b)
develop Customer-specific computer programs or training programs or (c) provide
other services as the parties may hereafter mutually agree. Credit hours to
which Customer shall become entitled as provided in this Paragraph 6.5.1 shall
be computed based on the number of Software licenses in effect during any
Contract Year so long as such licenses are for Software that is entitled to
Software support under Section 6 hereof during any part of the Contract Year.
For purposes of this Section 6.5, Contract Years shall be those twelve (12)
month periods commencing on the Effective Date and on those anniversaries of the
Effective Date so long as this Agreement shall be in effect. Credit hours shall
be calculated as follows:
[Confidential treatment requested--See Confidential Treatment
Statement on page one hereof.]
Credit hours shall be earned by Customer with respect to any Software license as
soon as the criteria set forth in this Paragraph 6.5.2 have been met for any
particular Software license. Once earned, credit hours may be accrued and used
at any time while this Agreement is in effect. Nothing herein shall be construed
to limit the use of credit hours for use in respect to services rendered solely
at or for the Customer location where such credit hour or hour(s) were earned.
The following are examples of the foregoing provisions and are not modifications
of, or additions to, any term, condition or provision of this Paragraph 6.5.2:
[Confidential treatment requested--See Confidential Treatment
Statement on page one hereof.]
-16-
6.5.3 The existence of Customer's own help desk as provided in
Paragraph 6.5.1 above shall in no way reduce or alter the support service fee as
provided in Paragraph 6.4 hereof nor reduce the obligation of Softsense to
provide all support services called for under this Agreement for so long as
support service fees are paid. Without limiting anything in this Section 6.5,
Softsense agrees in all events that so long as support service fees are properly
paid, it will be available to provide Software support services to Customer 24
hours per day, seven days per week, 52 weeks per year.
6.6 If the Customer fails to pay any Software support fee due hereunder
for any reason other than for due cause, Softsense has the right to suspend or
terminate such support services or any part thereof but only after Softsense has
given Customer thirty (30) days prior written notice and then only if Customer
has not made payment of all past due Software support fees.
7. SYSTEM STAGING.
--------------
7.1 At Customer's option, as shall be indicated on Accepted Orders,
Softsense shall stage, as necessary, Equipment, Software, third-party
peripherals, and computer programs associated with the Equipment and/or the
third-party peripherals prior to shipment of such items to Customer by
Softsense. Except as may otherwise be agreed, staging shall include the
following:
(i) Installation of disk drives and electronic circuit boards in
Equipment.
-17-
(ii) Building and labeling all cables for easy on-site
installation and maintenance.
(iii) Installation of third-party computer programs.
(iv) Installation of Software.
(v) Setup of site specific parameters (i.e. pump types, layout,
number of registers, store operating hours, etc.).
(vi) Testing of individual components and overall system as it
will be used at the site.
(vii) Installation and testing of third-party peripherals.
(viii) Repacking of all Equipment and third-party peripherals for
shipping.
7.2 Staging of third-party peripherals shall be dependent upon such
items being delivered to Softsense for integration. Customer shall be
responsible for shipping such third-party peripherals (including responsibility
for costs associated with such shipping) to Softsense's Atlanta offices.
7.3 Charges associated with the system staging will be specified by
this Agreement and detailed, by reference or otherwise, on Accepted Orders
issued by Customer and accepted by Softsense.
8. NONDISCLOSURE AND CONFIDENTIALITY.
---------------------------------
8.1 For purposes of this Agreement, the term "Proprietary
Information" shall mean all ideas, concepts, techniques, know-how, technical
information, business information or other data, information or material of a
non-public nature, in whatever form, which belongs to one of the parties hereto
and which is received by the other party hereto. Without limiting the foregoing,
Proprietary Information of Softsense shall include the Software and Proprietary
Information of Customer shall include Customer-owned computer programs which are
developed for Customer by Softsense. Each party shall endeavor to identify its
Proprietary Information as such prior to its being communicated to the other
party; however, failure to make such identification shall not alone change the
classification of information from Proprietary Information to non proprietary
information. The foregoing definitions of "Proprietary Information"
notwithstanding, in no event shall the term "Proprietary Information" include:
(i) information which at the time of disclosure is in the public
domain;
(ii) information which, after disclosure, enters the pubic domain
except where such entering is a result of a breach of this
agreement or any other agreement of confidentiality; and
(iii) information which is otherwise independently obtained by either
party free from any obligation of confidentiality.
-18-
8.2 Each party shall:
a. hold in strict confidence all Proprietary Information of the
other party, using at a minimum the same degree of care to avoid disclosure of
such Proprietary Information as would be used with respect to its own
confidential information of like importance; and
b. use the Proprietary Information of the other party solely for
the purpose of computer program (including Software) and hardware (including
Equipment and third-party peripheral) development and implementation
specifically for Customer use. Each party shall only disclose Proprietary
Information of the other party to its employees or advisors as such individuals
have a need to know the Proprietary Information for the purposes specifically
allowed herein and shall only make such disclosures after advising such
employees and advisors of the confidential nature of the information and of the
provisions of this Section 8 and after obtaining such individuals acknowledgment
of and agreement to the terms of this Section 8. Each party agrees not to
disclose to anyone other than those individuals to whom disclosure may be made
in accordance with this Paragraph 8.2 that any Proprietary Information is being
furnished to either party by or on behalf of the other party.
8.3 If either party is required by legal process to disclose any of
the Proprietary Information of the other party, the party so required to
disclose agrees to provide the other party with prompt notice of such
requirements so that the other party may seek an appropriate protective order
and/or waive compliance by and with the provisions hereof, as such other party
in its sole discretion deems appropriate.
8.4 Each party agrees to return or destroy all documents and other
materials which incorporate Proprietary Information of the other party upon
demand by the other party. Each party shall also deliver to the other party or
shall destroy, at such time as the other party shall instruct, all other written
or computer stored material containing, reflecting or based on any data or
information contained in the Proprietary Information of the other party (whether
prepared by either party hereto or otherwise) and the party requested to return
or destroy documents and materials will retain no copies, extracts or other
reproductions, in whole or in part, of such Proprietary Information.
8.5 In the event that Softsense, or any individual to whom Proprietary
Information of Customer may be disclosed by Softsense, fails to observe the
terms and conditions hereof, Customer, in addition to any other available
remedy, may obtain an order restraining Softsense, or any individual to whom
Proprietary Information of Customer may have been disclosed by Softsense, from
breaching these terms and conditions. Softsense agrees to protect, defend,
indemnify and hold harmless Customer and its employees, officers and members of
its Board of Directors from any claims, damages, personal injuries, losses,
costs or expenses which Customer or its employees, officers or directors may
incur due to the improper use or disclosure of Customer's Proprietary
Information by Softsense or by its employees, agents or contractors or by any
other person or entity to whom Softsense discloses, directly or indirectly, such
Proprietary Information. The failure of Customer to pursue its rights hereunder
or any remedy available to enforce such rights shall not be deemed a waiver with
respect to any past, continuing or future breach or default by Softsense or any
individual or entity to whom Customer's Proprietary Information may have been
disclosed by Softsense, directly or indirectly. In the event that Customer, or
any individual to whom Proprietary Information of Softsense may be disclosed by
Customer, fails to observe the terms and conditions hereof, Softsense, in
addition to any other available remedy, may obtain an order restraining
Customer, or any individual to whom Proprietary Information
-19-
of Softsense may have been disclosed by Xxxxxxxx, from breaching these terms and
conditions. Customer agrees to protect, defend, indemnify and hold harmless
Softsense and its employees, officers and members of its Board of Directors from
any claims, damages, personal injuries, losses, costs or expenses which
Softsense or its employees, officers or directors may incur due to the improper
use or disclosure of Softsense's Proprietary Information by Customer or by its
employees, agents or contractors or by any other person or entity to whom
Customer discloses, directly or indirectly, such Proprietary Information. The
failure of Softsense to pursue its rights hereunder or any remedy available to
enforce such rights shall not be deemed a waiver with respect to any past,
continuing or future breach or default by Customer or any individual or entity
to whom Softsense's Proprietary Information may have been disclosed by Customer,
directly or indirectly.
8.6 All confidentiality agreements set forth in any subsequent
agreements between the parties hereto regarding the subject matter hereof shall
be cumulative in addition to the terms and conditions stated herein. The
provisions of this Section 8 shall survive the expiration or termination of this
Agreement.
9. LIMITATION OF LIABILITY AND DAMAGES.
-----------------------------------
9.1 THE CUSTOMER ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL
SOFTSENSE, ANY AFFILIATE OR ANY OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, OR
REPRESENTATIVES OF SOFTSENSE BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR
ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGE OR LOSS OF ANY NATURE
INCLUDING, BUT NOT LIMITED TO, DAMAGES RESULTING FROM DELAY, LOSS OF PROFITS,
INJURY TO PERSON (EXCLUDING BODILY INJURY OR DEATH), OR LOSS OF GOODWILL WHICH
MAY ARISE IN CONNECTION WITH THE SOFTWARE, ANY REVISIONS OR ADDITIONS THERETO,
ANY COPIES THEREOF, THE EQUIPMENT, SOFTWARE SUPPORT SERVICES, EQUIPMENT WARRANTY
PLAN OR OTHERWISE PERTAINING TO THIS AGREEMENT, EVEN IF SOFTSENSE HAS BEEN
NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, BUT
EXCLUDING SPECIFICALLY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR
LOSSES ARISING FROM OR RELATED TO SOFTSENSE'S BREACH, IF ANY, OF ITS OBLIGATIONS
UNDER SECTION 8 OF THIS AGREEMENT. THE PARTIES AGREE THAT ANY LIMITATION OF
LIABILITY SET FORTH IN THIS PARAGRAPH 9.1 SHALL SURVIVE IN FULL FORCE AND EFFECT
DESPITE ANY FAILURE OF AN EXCLUSIVE REMEDY.
9.2 THE CUSTOMER AGREES THAT SOFTSENSE'S LIABILITY FOR DAMAGES TO THE
CUSTOMER OR ANY THIRD PARTY FOR ANY CAUSE WHATSOEVER RELATED TO THIS AGREEMENT,
THE SOFTWARE, EQUIPMENT, SOFTWARE SUPPORT SERVICES, OR EQUIPMENT WARRANTY PLAN
SERVICES AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT
INCLUDING NEGLIGENCE OR STRICT LIABILITY, SHALL BE LIMITED TO ALL PAYMENTS
RECEIVED BY SOFTSENSE FROM THE CUSTOMER HEREUNDER (NET OF EXPENSES, INCLUDING
LICENSE FEES, PAID TO THIRD PARTIES ON BEHALF OF CUSTOMER) FOR THE PARTICULAR
SOFTWARE PROGRAM, EQUIPMENT COMPONENT OR SUPPORT ACTIVITY THAT CAUSED THE DAMAGE
OR THAT IS THE SUBJECT MATTER OF, OR IS DIRECTLY RELATED TO, THE CAUSE OF
ACTION. THIS LIMITATION OF LIABILITY WILL NOT APPLY TO CLAIMS FOR PATENT OR
COPYRIGHT INFRINGEMENT AS SET FORTH IN PARAGRAPH 4.5 NOR TO CLAIMS FOR BODILY
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INJURY, DEATH OR DAMAGE OR DESTRUCTION OR REAL OR PERSONAL PROPERTY NOR TO
CLAIMS ARISING FROM OR RELATED TO ANY BREACH BY SOFTSENSE OF ITS OBLIGATIONS
UNDER SECTION 8 OF THIS AGREEMENT. IN NO EVENT WILL SOFTSENSE BE LIABLE FOR ANY
DAMAGES ARISING FROM PERFORMANCE OR NONPERFORMANCE OF THE SOFTWARE OR EQUIPMENT
CAUSED BY THE CUSTOMER'S OR ANY THIRD PARTY'S FAILURE TO PERFORM ITS OR THEIR
RESPONSIBILITIES.
9.3 SOFTSENSE SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR MISUSE OF
THE SOFTWARE OR USE OF THE SOFTWARE BY UNTRAINED PERSONNEL, FOR IMPROPER ENTRY
OF DATA BY CUSTOMER OR BY ITS EMPLOYEES OR AGENTS IN CONNECTION WITH THE
SOFTWARE OR FOR ANY PROBLEMS ENCOUNTERED IN CONNECTION WITH EQUIPMENT SUPPLIED
BY SOFTSENSE OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, MISUSE OR
INCORRECT OPERATION. THE CUSTOMER UNDERSTANDS THAT THE USE OF ANY EQUIPMENT
OUTSIDE THE MANUFACTURER'S RECOMMENDED SPECIFICATIONS MAY SERIOUSLY AFFECT THE
PERFORMANCE OF THE SOFTWARE. SOFTSENSE SHALL NOT BE HELD LIABLE OR RESPONSIBLE
FOR EXTERNAL ENVIRONMENTAL CONDITIONS THAT MAY AFFECT THE PERFORMANCE OF THE
SOFTWARE OR EQUIPMENT INCLUDING, BUT NOT LIMITED TO, LOSS OR INTERRUPTION OF
POWER, INTERRUPTION OR DEGRADATION OF PHONE LINE SERVICE OR INTEGRITY, OR OTHER
SUCH FACTORS.
10. PROMOTIONAL MATERIAL. Only upon the review, as appropriate, and
--------------------
express written approval of a party to this Agreement may the other party to
this Agreement represent verbally, electronically or in any printed or visual
promotion, advertisement, or informational brochure that the Customer is a user
of the Software and a customer of Softsense. No representation shall be deemed
approved, regardless of any purported approval, unless such representation is
true, accurate and correct.
11. TERMINATION.
-----------
11.1 This Agreement is effective from the Effective Date and will
remain in effect until terminated by the Customer upon sixty (60) days' written
notice, or otherwise as provided in this Paragraph 11, or by Softsense as set
forth in this Paragraph 11. Termination of this Agreement may be partial as to
Equipment purchase provisions or Software maintenance and support provisions or
Extended Equipment Warranty Plan provisions; provided, however, that any such
partial termination or terminations shall not otherwise affect Customer's
Software licenses (including its rights with respect to documentation and other
items included in the definition of Software set forth in Paragraph 2.7 hereof)
or its obligations thereunder. The licenses granted by this Agreement may be
terminated by the Customer effective only when all Software (including
documentation, and other items included in the definition of Software set forth
in Paragraph 2.7 hereof which have been provided by Softsense hereunder) has
been returned to Softsense or destroyed upon instructions from Softsense.
Termination of the use of the Software by the Customer at one or more Licensed
Sites shall not be deemed a termination of this Agreement provided the Customer
continues to use the Software at other Licensed Sites.
11.2 Softsense may terminate this Agreement upon the occurrence of a
material breach hereof (including, without limitation, non-payment of fees) by
the Customer, which breach, unless otherwise agreed, has not been cured, with
respect to nonpayment of fees, within fifteen (15) days after the date of
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written notice thereof to the Customer by Softsense, and with respect to any
other material breach, within forty five (45) days after the date of written
notice thereof to the Customer by Softsense. Said notice will identify and
describe the basis for such termination. If prior to expiration of any cure
period, as stated above, the Customer cures such default, termination shall not
take place. Unless the material breach giving rise to termination of this
Agreement under this Paragraph 11.2 pertains to breach of the terms of the
Software license, failure to pay license fees or unauthorized disclosure of the
Software pursuant to the terms of the Software license or the terms of Section 8
of this Agreement, termination of this Agreement shall not terminate any
Software license previously granted and perfected. Termination of support
services hereunder will not otherwise affect the Customer's licenses to the
Software.
11.3 Either party may terminate this Agreement immediately upon the
filing by the other party of a voluntary petition in bankruptcy or a voluntary
petition or answer seeking reorganization, arrangement, or readjustment of its
debts, or any agreement by the other party indicating its consent to, approval,
or acquiescence in any petition or proceeding, or the application by the other
party for or the consent or acquiescence of the other party to the appointment
of a receiver or trustee or the filing of an involuntary petition against the
other party seeking reorganization, rearrangement or readjustment of its debts
or for any other relief under any insolvency act or law, now or hereafter
existing, or the involuntary appointment of a receiver or trustee for all or a
substantial part of the other party's property or assets. Termination of this
Agreement under the provisions of this Paragraph 11.3 shall not terminate any
Software license previously granted and perfected for which the Software license
fee has been previously paid and the terms of which have not otherwise been
breached.
11.4 Upon expiration or termination of this Agreement for any reason,
each party shall use its best efforts to return to the other party all property
belonging to the other party including, but not limited to, as appropriate, all
copies of the Software and other computer programs together with documentation
or other materials related thereto, and all Equipment not fully paid for
hereunder. Upon termination or expiration of this Agreement, the provisions of
this Agreement providing for payment of charges to Softsense, protection of the
parties' respective proprietary rights including Proprietary Information,
Softsense's warranties, the parties' respective limitations of liability and
other provisions of this Agreement concerning the ongoing interest of the
parties including, but not limited to, the provisions of Sections 4.3, 4.5, 4.6,
5.5, 8, 9, 15, 17, 18, 22, 23, shall continue and survive in full force and
effect.
12. INDEPENDENT PRINCIPALS. Softsense and the Customer are independent
-----------------------
principals in all actions contemplated by this Agreement. This Agreement shall
not be construed to create or authorize any partnership, joint venture or agency
relationship, nor to authorize either party hereto to make any commitment or
agreement binding on the other party hereto, without such other party's prior
written consent. In addition, each party hereto acknowledges that neither it nor
its employees are eligible to participate in any employee benefit programs
offered by the other party hereto. Each party hereto further understands that
neither it nor its employees are covered under the other party's workers'
compensation insurance or unemployment insurance coverage.
13. FORCE MAJEURE. Neither party shall be in default by reason of any
-------------
failure in performance of this Agreement if such failure arises, directly or
indirectly, out of causes reasonably beyond the control or foreseeability of
Softsense including, but not limited to, default by suppliers, acts of God or of
the public enemy, U.S. or foreign governmental acts in either a sovereign or
contractual capacity, transportation contingencies, fire, flood, epidemic,
restrictions, and strikes.
-22-
14. NO WAIVER. Except as limited by any applicable Statute of Limitation
---------
or Statute of Repose or by any other provision of this Agreement, neither party
shall by mere lapse of time without giving notice or taking other action
hereunder be deemed to have waived any breach by the other party of any of the
provisions of this Agreement. Furthermore, the waiver by either party of a
particular breach of this Agreement by the other party shall not be construed
as, or constitute, a continuing waiver of such breach, or of other breaches of
the same or other provisions of this Agreement.
15. EQUITABLE REMEDIES AND SPECIFIC PERFORMANCE. Both parties acknowledge
-------------------------------------------
that each provision in this Agreement providing for the protection of a parties
copyrights, patents, Proprietary Information, trade secrets and other
proprietary rights, is material to this Agreement. The parties acknowledge that
any threatened or actual breach of such copyrights, patents, proprietary rights
or trade secrets or the threatened or actual disclosure of Proprietary
Information shall constitute immediate and irreparable harm to the party owning
such rights, patents, secrets or Proprietary Information, for which equitable
remedies may be awarded by a court of competent jurisdiction.
16. NOTICES. All notices and other communications required or permitted to
-------
be given under this Agreement shall be in writing and shall be considered
effective when (i) mailed by registered or certified mail, postage pre-paid,
return receipt requested, or (ii) hand delivered. All such notices shall be
addressed as shown below or to such other address as may be designated by a
party hereto by written notice to the other party. Addresses for notices are as
follows:
If to Softsense: If to the Customer:
--------------- ------------------
Softsense Computer Products Inc. Emro Marketing Company
0000 Xxxxxxx Xxxxx P.O. Box 1500
Suite E-5200 Springfield, OH 45501
Atlanta, Georgia 30328 ATTENTION: Corporate Manager,
ATTENTION: Director of Operations Commercial and Development
With a courtesy copy to: With a courtesy copy to:
----------------------- -----------------------
Xxxxxxx X. Xxxxxxxxxx, Esquire As may hereafter be designated by
Xxxxx, Xxxxxxxx & Xxxxxxx, LLP Customer from time-to-time.
0000 Xxxxxxxxx Xxxx, X.X.
Suite 1800
Atlanta, Georgia 30326
17. GOVERNING LAW. This Agreement shall be governed, construed, and
-------------
interpreted in accordance with the laws of the State of Georgia. The Customer
stipulates and admits that it is transacting business in Xxxxxx County in the
State of Georgia.
18. AUTHORITY TO CONTRACT. Each party warrants and represents to the
---------------------
other that to the best of its knowledge it is legally free to enter into this
Agreement, that its execution of this Agreement has been duly authorized and
that full performance of the terms and conditions of this Agreement shall not
conflict with or violate any terms or conditions of any other agreement by which
it is bound.
-23-
19. ASSIGNMENT. The Customer represents that it is acting on its own
----------
behalf and is not acting as an agent for or on behalf of any third party, and
further agrees that it may not assign its rights or obligations under this
Agreement without the prior written consent of Softsense, except to a successor
of all or substantially all of the business assets and properties which are
associated with the use of the Software and Equipment licensed and purchased
hereunder (e.g. sale by the Customer of those Licensed Sites where the Software
is operated) and provided such successor agrees in writing to be bound by the
terms of this Agreement and all Accepted Orders executed in connection with the
Customer's use of the Software. Nothing herein shall preclude the Customer from
transferring the Software and Software license to a different location owned and
operated by the Customer provided the Customer executes and delivers to
Softsense a notice respecting the transfer and use of the Software and Software
license at such different location which notice shall identify both the Licensed
Site from which the Software and Software license are being transferred and the
different location to which the Software and Software license are being
transferred. Delivery of such notice will be effective to designate the
different location as a Licensed Site and to remove such designation from the
location from which the Software and Software license are transferred. Finally,
the Customer may transfer its license to one or more Software programs without
the prior written consent of Softsense if the transferee is the successor of the
Customer's business where the Software is installed (e.g. the Licensed Site
where the Software programs to be transferred are installed) and the transferee
executes an agreement with Softsense substantially similar to this Agreement,
provided, however, that such a transfer shall not relieve the Customer of its
obligation to fulfill the terms and conditions hereof.
20. SEVERABILITY. If any provision hereof is declared invalid by a court
------------
of competent jurisdiction, such provision shall be ineffective only to the
extent of such invalidity so that the remainder of that provision and all
remaining provisions of this Agreement will continue in full force and effect
and be enforced to the maximum extent permitted by applicable law.
21. AMENDMENTS. This Agreement can be amended or supplemented only by an
----------
instrument in writing signed by authorized representatives of both parties.
22. LIMITATION OF ACTIONS. No action, regardless of form, whether based on
---------------------
contract, strict liability, or tort, including any action based on negligence,
arising out of this Agreement, may be brought (i) in the case of an action
arising out of a breach of the terms and conditions of Paragraph 8 herein, more
than five years after such cause of action has arisen or (ii) in the case of any
other action, more than two years after the cause of action has arisen, except
that in the case of an action for monies due, an action may be brought within
two years of the date of the last payment.
23. GENERAL.
-------
23.1 Each of the parties hereto acknowledges that it has read this
Agreement, understands it, and agrees to be bound by its terms. The parties
further agree that this Agreement and the Accepted Orders are the complete and
exclusive statement of agreement between the parties relating to the subject
matter of this Agreement and supersede and cancel all previous understandings,
representations, conditions, warranties and all other communications between the
parties relating to the subject matter of this Agreement.
23.2 The terms and conditions of any Exhibits or Addenda and now or
hereafter attached to this Agreement are incorporated by this reference and made
a part of this Agreement.
-24-
23.3 Variance from the terms and conditions of this Agreement in any Order
or other written communication shall be of no force or effect except to the
extent accepted or agreed to by Softsense. In the event of a conflict between
the terms of this Agreement and the terms of a written communication from
Softsense other than as contemplated hereby, the terms and conditions specified
in this Agreement shall take precedence.
23.4 In addition to the charges due under this Agreement, the Customer
agrees to pay amounts equal to any federal, state and local taxes designated,
levied or based on this Agreement or any activities hereunder, exclusive of
taxes based on Softsense's net income. Any personal property taxes assessable on
the Equipment after delivery to Customer shall be paid by the Customer. Any
amount owed by Customer to Softsense which becomes overdue may, at Softsense's
option, bear interest equal to .66% per month.
23.5 The Agreement is not valid or binding upon Softsense until accepted
by Softsense as evidenced by the execution of this Agreement by an authorized
representative.
23.6 Softsense shall secure and maintain in force, while this Agreement
remains in effect, insurance with a financially responsible insurance company or
companies acceptable to Customer, of the kinds and in the minimum amounts stated
below, provided that such amounts are minimum limits only:
(a) Worker's Compensation as required by the laws of the State in
which services subject of this Agreement and any Accepted Order are to be
performed. Employer's Liability Insurance shall have a limit of at least five
hundred thousand dollars ($500,000) per occurrence.
(b) Public liability insurance applying to all operations pursuant to
or in connection with this Agreement, including any and all amendments or
changes hereto, with a combined single limit of at least five hundred thousand
dollars ($500,000) per occurrence, and covering, without limitation,
premises/operations, completed operations, and independent contractors,
contractual liability.
(c) Automobile liability insurance with a combined single limit of at
least five hundred thousand dollars ($500,000) per occurrence.
(d) Such other or increased insurance coverage(s) as may be required
by law. Softsense shall also require each and every of its subcontractors which
shall do work hereunder to maintain insurance in force meeting all of the
requirements specified above. Except for the Worker's Compensation policy,
Customer shall be named as additional insured under all policies of insurance,
and all policies shall waive all rights of subrogation against Customer, its
parent or affiliated corporation(s), and its or their agents, employees and
underwriters with respect to all claims arising out of, or in any way connected
with, this Agreement and Accepted Orders in respect hereof. Before commencing
Work, Softsense shall furnish Customer with Certificates of Insurance verifying
that all insurance required of Softsense is in force. The Certificates shall
include the stipulation that no change in, or cancellation of, any policy or
policies will be made without written notice to Customer at least thirty (30)
days prior to such change or cancellation. If requested by Customer, Softsense
shall have its subcontractors furnish the same evidence of insurance required of
Softsense. The minimum insurance required by Customer herein shall not limit or
diminish in any way the respective rights and obligations of the parties under
-25-
this Agreement, nor shall such coverage be construed as a limit or extension of
Softsense's liability under this Agreement or otherwise. The purchase of
insurance by Softsense shall, in no event, relieve Softsense from liability
hereunder.
23.7 Softsense agrees to notify its employees, subcontractors, agents and
representatives of Customer's Drug and Alcohol Policy (The Policy). The Policy
prohibits Softsense's employees, subcontractors, agents and representatives
from:
(a) using, possessing, distributing or selling drugs while on
Customer's premises or while engaged in business related thereto;
(b) consuming or possessing alcohol in an unsealed or open container
while on the Customer's premises;
(c) reporting to perform work for Customer with unauthorized drugs in
his or her body or while under the influence of alcohol; or
(d) refusing to submit to routine searches of their person, their
personal property, and Customer or Softsense assigned property, while entering,
on, or leaving the premises.
Softsense agrees to remove and replace, for the purpose of fulfilling its
obligations to Customer under this Agreement any of its employees,
subcontractors, agents or representatives found to be in violation of The
Policy, or those employees that Customer believes to be in violation of The
Policy whose compliance with The Policy cannot be certified to by Softsense
based upon laboratory testing acceptable to Customer. The foregoing
notwithstanding, no employee, subcontractor, agent or representative of
Softsense shall be required to submit to searches which are not permitted by
law.
23.8 The possession of alcohol in an unsealed or open container, drugs or
drug-related paraphernalia, firearms, explosives, weapons, and hazardous
substances or articles is prohibited on the premises of Customer. Entry onto
said premises by Softsense, its employees, agents, representatives or
subcontractors constitutes consent to and recognition of the right of Customer
and its authorized representatives to search the person, automobile, and other
property of individuals while entering, on, or departing said premises.
Softsense agrees to inform its employees, agents representatives and
subcontractors of this implied consent prior to such individual's entry onto
Customer's premises.
IN WITNESS WHEREOF, Softsense and the Customer have caused this Agreement
to be executed by their respective duly authorized representatives as of the
date first above written.
-26-
ACCEPTED BY:
"CUSTOMER" "SOFTSENSE"
EMRO MARKETING COMPANY SOFTSENSE COMPUTER PRODUCTS INC.
By: /s/ X.X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------ -----------------------------------
(Authorized Signature) (Authorized Signature)
Name (Print): X.X. Xxxxxxx Name (Print): Xxxxxx X. Xxxxxxxx
-------------------- -------------------------
Title: President Title: Treasurer
--------------------------- --------------------------------
-27-
ADDENDUM NO. 1
TO
SOFTSENSE COMPUTER PRODUCTS INC. COMPU-TOUCH(R)
SOFTWARE LICENSE, SUPPORT AND EQUIPMENT PURCHASE AGREEMENT
This Addendum ("Addendum No. 1") to the Softsense Computer Products Inc.
Compu-Touch(R) Software License, Support and Equipment Purchase Agreement dated
May 27, 1994, ("Agreement") between Softsense Computer Products Inc.
(.Softsense") and Emro Marketing Company ("Customer") is entered into on the
27th day of May, 1994. The terms "Effective Date" and "Execution Date" as used
in this Addendum No. 1 shall mean those dates as identified in the Agreement by
such terms, respectively, notwithstanding the date upon which this Addendum No.
1 may be signed. Except as may otherwise be specifically provided herein, the
terms and conditions of this Addendum shall be deemed effective on and after the
Effective Date.
1. The parties agree that any conflict between the terms of the Agreement
and those of this Addendum No. 1 shall be resolved in favor of the terms of this
Addendum No. 1 so long as this Addendum No. 1, or any term hereof subject of
such conflict, remains in effect.
2. This Addendum No. 1 shall serve as formal price confirmation to
Customer for specified Equipment and Software licenses and for system staging,
installation and training as more fully set forth herein. Any Order issued by
Customer and accepted by Softsense referencing Addendum No. 1, while Addendum
No. 1 remains in effect, shall be deemed to have incorporated the prices and
terms hereof applicable to such Accepted Order except to the extent otherwise
set forth on the face of such Accepted Order.
3. This section of Addendum No. 1 describes all possible Equipment and
components thereof and their related costs. These components can be combined in
a variety of ways depending on the layout and volume of each Licensed Site. At
a minimum a Site Controller, Point-of-Sale station and a Back Office station
must be configured. Hardware required to run Software at the home office is not
included in this Addendum No. 1. These Equipment prices are valid for one year
from the date this Addendum No. 1 is entered into.
SITE CONTROLLER [Confidential treatment requested--
See Confidential Treatment Statement
on page one hereof.]
--------------------------------------------------------------------------
486SX-25MHz Cached Compu-Touch Server PC
1.44MB 3.5" Floppy disk Drive
8MB Random Access Memory
Monochrome Card
120MB SCSI Hard Disk Drive
120MB SCSI Novell Back Up Hard Drive
120MB Point-of-Sale Back Up Hard Drive
SCSI Host Adapter for Primary Hard Drive
SCSI Host Adapter for Backup Hard Drive
Novell Netware V4.XX 5-user license
Ethernet network card and hub
Sound Capability
8 port serial port board
Co-Session remote communications software
9600 Baud Modem for home office communications
2400 Baud Modem for Credit Authorization
Credit Card slip printer
Speakers for sound board
Uninterruptible Power Supply
Monochrome monitor
Keyboard
A/B Switch for pump redundancy
80 column report printer
Label printer
All necessary cables
POINT-OF-SALE STATION [Confidential treatment requested--
See Confidential Treatment Statement
on page one hereof.]
--------------------------------------------------------------------------
486SX-25MHz Compu-Touch POS PC
4MB Random Access Memory
1MB SVGA Card
Monochrome Card
Ethernet Card
Touch screen controller card
8 Port serial port board
Sound Capability
Boot PROM
MS DOS 6.XX
Uninterruptible Power Supply (UPS)
Mini Keyboard
Magnetic Stripe reader
Touch-Screen Monitor
Monochrome Monitor
Receipt Printer
Automatic Cash Drawer w/ open/close sensor
Speakers for sound board
All necessary cables
BACK OFFICE STATION [Confidential treatment requested--
See Confidential Treatment Statement
on page one hereof.]
--------------------------------------------------------------------------
486SX-25MHz Compu-Touch Back Office PC
4MB Random Access Memory
VGA Card
Ethernet Card
Boot PROM
MS DOS 6.XX
Keyboard
Uninterruptible Power Supply
VGA Monitor
All necessary cables
-2-
HAND-HELD TERMINAL [Confidential treatment requested--
See Confidential Treatment Statement
on page one hereof.]
--------------------------------------------------------------------------
Norand RT1020 Package with Integrated Scanner
Terminal with battery
Multiplexer
Radio Base
Remote Charger
Extra Battery
Softsense will work with Customer, Gilbarco, and Tokheim to provide an interface
between the Software and electronic fuel dispensers manufactured by these
companies without the use of a pump controller, if this is technically possible
and the appropriate information is provided to Softsense by these companies
(i.e. PAM1000, DHC). Until that interface is completed, Customer will be
responsible for supplying the XXX or DHC. Once the direct interface is complete,
Softsense will provide the direct interface through a current loop to RS232
converter at a price to be agreed upon separately.
4. This section of Addendum No. 1 describes Compu-Touch Software and the
license fees therefor. [Confidential treatment requested--See Confidential
Treatment Statement on page one hereof.] The Compu-Touch Software set may
only be licensed as a complete set. The Set includes the following modules:
a. BASE SOFTWARE
This module is the heart of Compu-Touch. All point-of-sale functions
are controlled through this module. This includes all touch-screen
capabilities, scanning, receipt printing, etc. Softsense will make
available to Customer a menu on the Base Software that will allow for
the execution of third-party, Open Architecture computer program
applications which are compatible with the Software. Softsense does
not make any warranty regarding such third-party applications but any
DOS based program that can run on a standard DOS compatible machine
should work without error. Softsense will make available to Customer
all Software generated data for use with third-party program
applications. This data will be available on a read-only basis.
Softsense is not responsible for any corruption to Software data files
as a result of Customer's use of any third-party application except
with respect to proper use of third-party programs provided by or
through Softsense or recommended by Softsense.
b. ADVANCED CONTROL MODULE
This module provides for real-time, item-level inventory control. It
supports the hand-held computer, allowing Direct Store Delivery and
physical audit recording.
c. FUEL CONTROL MODULE
The Fuel Control Software module allows for complete control of fuel
transactions through the point-of-sale touch-screen. All fuel
transactions are billed out through the
-3-
touch-screen and are recorded on the electronic journal. The fuel
control module also manages fuel inventory and interfaces to various
electronic tank monitors.
d. HOME OFFICE APPLICATION MODULE
The Home Office Application Module includes communication capability
between the Licensed Site and the home office including a remote
assistance program. It also includes office price book maintenance,
and store reporting. The Home Office Application Module includes
Software that will be loaded on the system located at the Licensed
Site and the system located at the home office.
The license fee for the Compu-Touch Software Set is based on the number of sets
installed. The following chart describes the license fee for various
installation levels:
# OF LICENSED SITES INSTALLED DIS. PRICE
-------------------------------------------------------------------------
1-300 [Confidential treatment requested--
301-500 See Confidential Treatment Statement
501-1000 on page one hereof.]
less than 1000
The parties agree that Software support service fees contemplated by and
provided for in Paragraph 6.4 of the Agreement shall be determined and
calculated in conformity with the license fees set forth in the chart
immediately above notwithstanding that Customer may be entitled to, and may
take, the special discount provided for in Paragraph 6 of this Addendum No. 1
and notwithstanding that Paragraph 6.4 of the Agreement provides that Software
support service fees are to be calculated as a percentage of the one-time
license fee actually paid or to be paid by the Customer.
5. At no additional cost to Customer, upon the execution of the Agreement
by both parties, Softsense will provide Customer with the standalone computer
programs, including the source codes therefor, developed by Softsense and
Customer to support Customer's Daily Sales Report, Payroll and Distributor order
entry. For purposes of this Addendum Section 5, the term "standalone" means that
the computer programs subject hereof are capable of reading Open Architecture
data bases, including without limitation the Software data bases, and are
capable of accepting keyed-in data. As between Customer and Softsense, title to
these programs will be in Customer and Softsense will execute any document which
Customer may reasonably request to perfect title thereof in Customer. Customer
acknowledges that at some time in the future Softsense may desire to reacquire
an ownership interest in the standalone computer programs subject of this
Paragraph 5 or otherwise may wish to have the right to resell versions of these
programs to third parties. The parties agree that in such event or events that
they will renegotiate ownership rights or other interests in such programs on a
case-by-case basis. Anything to the contrary above notwithstanding, so long as
they are used in conjunction with the Software and are not modified by Customer
or by a third-party not an agent for Softsense, the programs subject of this
Addendum Section 5 shall be supported by Softsense pursuant to the terms and
conditions of Section 6 of the Agreement as if such programs were Software;
provided, however, that Enhancements made to the subject programs at the
specific request of Customer and which are not made solely for the purpose of
making the subject programs compatible with new Releases shall be subject to
additional fees to be
-4-
separately negotiated by the parties. Additionally Softsense agrees to provide
support for unmodified programs subject of this Addendum Section 5 upon mutually
agreed terms and conditions should Customer use any of the programs solely in
conjunction with computer program applications other than the Software.
Softsense agrees to provide programming level support to Customer should
Customer wish to modify the programs subject of this Addendum Section 5;
provided, however, that no programming level support for such programs will be
provided by Softsense until after the rollout of Customer's first sixty (60)
store locations.
6. Based on Customer's fulfillment of the conditions set forth in
Paragraph 7 hereof, Softsense will grant an additional flat rate discount of
$1,000 to each Software license fee ordered prior to the Execution Date.
Applying this discount results in the following net Software license fee at each
discount level:
# OF STORES INSTALLED NET PRICE
--------------------------------------------------------------------
1-300 [Confidential treatment requested--
301-500 See Confidential Treatment Statement
501-1000 on page one hereof.]
less than 1000
In the event that Customer becomes entitled to and takes the discount provided
for in this Paragraph 6 with respect to any particular Software license, the
provisions of Paragraph 4 of this Addendum respecting the computation of
Software support service fees shall prevail with respect to all Software
support. The Software encompassed by this proposal does not include a computer
based training module or an entry level back office system. However, in the
event that Softsense develops a computer based training module, and Customer
decides that the module would suit its business needs, Customer may choose to
have the training module included in the system [Confidential treatment
requested--See Confidential Treatment Statement on page one hereof.] The
computer based training module will consist of a CD ROM player and Softsense
Software which will allow Customer to prepare computer based training suited
to its needs.
7. [Confidential treatment requested--See Confidential Treatment
Statement on page one hereof.]
a. DOWN PAYMENT
Customer shall have made or shall make a down payment at the time this
Addendum No. 1 is signed by both parties equal to the Compu-Touch
Software Set price for the first 30 stores to be installed.
[Confidential treatment requested--See Confidential Treatment
Statement on page one hereof.] Anything in the Agreement to the
contrary notwithstanding, tender of the down payment and any
subsequent prepayment of license fees shall effectuate, subject to the
terms and conditions of Section 4 of the Agreement, the immediate
grant to Customer of a Software license, as set forth in Paragraph
4.1.1 of the Agreement, with respect only to those licenses for which
Customer has prepaid but for which Customer has not yet received the
Software program, regardless of whether or not Customer has issued an
Order for such Software and whether or not a specific Licensed Site
has been designated for such Software license or licenses. In the
event that at the time of prepayment a Licensed Site has not been
determined for a license, Customer shall subsequently issue an Order
which shall determine the Licensed Site for such license.
-5-
b. EQUIPMENT ORDER
Equipment upon which Software subject of Paragraphs 6 and 7 hereof is
to run shall be ordered at the same time such Software is ordered.
c. PAYMENT POLICY
Customer shall adhere to the following payment policy for Equipment
and Software:
i. Customer will issue an Order to Softsense via FAX.
ii. Softsense will generate a corresponding invoice and FAX it to
Customer.
iii. Customer will process the invoice and remit payment to Softsense
within 15 business days of receiving the invoice.
iv. Softsense will deliver the Equipment and Software to Customer
within 45 days of Order date unless a later delivery date is
indicated by Customer.
8. Notwithstanding anything to the contrary in the Agreement or in this
Addendum No. 1, Softsense agrees to provide Customer with a cash rebate for each
complete Software set (as described in Section 4 of this Addendum No. 1) ordered
based on the number of Software sets ordered and license fees therefor paid
(each such order and payment being referred to hereinafter as a, "Software set
purchased") by Customer on or after the Execution Date. The cash rebate amounts
will be as follows:
NO. OF SOFTWARE SETS PURCHASED CASH REBATE PER SOFTWARE SET PURCHASED
-------------------------------- --------------------------------------
1-700 [Confidential treatment requested--
700 and above See Confidential Treatment Statement
on page one hereof.]
Rights to the cash rebate for each Software set purchased shall accrue
immediately upon Customer's payment of the license fee therefor. Except in the
event of Softsense's inability to perform, materially, its obligations under the
Software purchase and sale provisions or the Software maintenance and support
provisions of the Agreement and under any addendum or amendment thereto (in
which event Customer shall become entitled to demand and to receive immediate
payment of all cash rebates accrued), Customer shall not be entitled to payment
of cash rebates until a total of seven hundred (700) Software sets have been
purchased by Customer on or after the Execution Date and, thereafter, until each
additional one hundred (100) Software sets have been purchased by Customer. The
cash rebates shall be paid by Softsense within twenty (20) days after Customer
has purchased the threshold number of Software sets. In the event that Softsense
is unable to pay the cash rebates when due, Customer shall have the option of
using any or all of the amount due to purchase additional Software licenses and
of requiring Softsense to deliver a promissory note in the amount of any cash
rebates which have not been used to purchase additional Software. The
aforementioned note shall bear simple interest on the unpaid principal at the
rate of six percent (6%) per annum from the date Customer purchased the last of
threshold number of Software sets which triggered the obligation of Softsense to
pay accrued cash rebates. The principal balance of the note shall be paid in
five (5) equal installments due and payable annually, commencing on
-6-
the first anniversary date of the execution of the note, with any accrued and
unpaid interest due and payable upon the payment of each annual installment
payment of the principal balance.
9. In order to be entitled to accrual and payment of the cash rebates set
forth above in Section 8, Customer shall comply with the following:
a. MINIMUM ORDERS
Contemporaneously with the execution of this Addendum No 1, Customer
shall issue an Order for three Hundred (300) Software license sets.
Additionally, subject to normal approval procedures for Customer's
budget, within ten (10) business days of Customer receiving formal
notification from its parent approving Customer's 1995 capital budget,
Customer shall issue an Order which, at a minimum, shall be for the
lesser of three hundred fifty (350) Software sets or the number of
Software sets approved in Customer's 1995 capital budget. Subject to
reasonably anticipated business conditions and prudent business
judgement, Xxxxxxxx agrees to use good faith efforts to seek approval
for the purchase of at least three hundred fifty (350) Software sets in
its 1995 capital budget. Anything in the Agreement to the contrary
notwithstanding, payment of license fees prior to the delivery of
Software to a Licensed Site shall effectuate, subject to the terms and
conditions of Section 4 of the Agreement, the immediate grant to
Customer of a Software license, as set forth in Paragraph 4.1.1 of the
Agreement, with respect only to those licenses for which Customer has
paid but which Customer but has not yet received the Software,
regardless of whether or not Customer has issued an Order for such
Software and whether or not a specific Licensed Site has been designated
for such Software license or licenses. In the event that at the time of
prepayment a Licensed Site has not been determined for a license,
Customer shall subsequently issue an Order which shall determine the
Licensed Site for such license.
b. PAYMENT POLICY
Customer shall adhere to the following payment policy for Software:
i. Customer will issue an Order to Softsense via FAX.
ii. Softsense will generate a corresponding invoice and FAX it to
Customer.
iii. Customer will process the invoice and remit payment to Softsense
within 15 business days of receiving the invoice.
iv. Softsense will deliver the Software within 15 days of the Order
date unless a later delivery date is indicated by the Customer;
provided, however, that if the Software is ordered in conjunction
with Equipment upon which it is to be run, Softsense will deliver
the Equipment and Software to Customer within 45 days of the Order
date unless a later delivery date is indicated by Customer.
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10. The cost of system staging indicated in this Section 10 is based on
the Software and Equipment components described above and the third-party
peripherals purchased by Customer from another supplier set forth in the
itemization below:
EQUIPMENT STAGING COST
------------------------------------------------------------------------
Site Controller $111
Point-of-Sales Station $ 78
Dedicated Back Office Station $ 38
Hand-Held Terminal $ 20
Point-of-Sale Scanner (third-party peripheral) $ 15
Automatic Change Dispenser (third-party peripheral) $ 15
11. At Customer's option, as shall be indicated on an Accepted Order,
Softsense shall provide installation and/or training services at a rate of
[Confidential treatment requested--See Confidential Treatment Statement
on page one hereof.] per installer/trainer plus travel related expenses.
12. This section of Addendum No. 1 pertains to related sales of Equipment
and Software to Information Resources Inc. ("IRI").
a. Softsense acknowledges that Customer has entered into a separate
agreement with IRI wherein IRI has agreed to provide Customer with
Software and staged Equipment (along with associated computer
programs) and third-party peripherals as such may be defined or
described in the Agreement and this Addendum No. 1. Except as may be
otherwise set forth in this Section 12, Softsense agrees, as
applicable, to sell, stage and deliver Equipment and third-party
peripherals to and/or at the direction of IRI, as appropriate, at the
prices and costs set forth in this Addendum No. 1 for the purpose of
IRI fulfilling its obligations under the terms of its agreement with
Customer. Except as may be otherwise set forth in this Section 12,
Softsense agrees that for the purpose of IRI fulfilling its
obligations under the terms of its agreement with Customer, Softsense
will permit IRI to purchase Software licenses at license fees set
forth in this Addendum No. 1 with the understanding that licenses so
purchased shall be granted directly to Customer in accordance with the
terms and conditions of the Agreement including, specifically, the
terms and conditions of Section 4 thereof. Anything in the Agreement
or in this Addendum No. 1 to the contrary notwithstanding, the cash
rebate provisions and the conditions for receiving same, as set forth
in Sections 8 and 9 hereof, shall not apply to any purchases of
Software made by IRI and all purchases of Software by IRI, whether
before or after the Execution Date, shall be entitled to the flat rate
discount set forth in Section 6 hereof if the appropriate conditions
of Section 7 shall have been met by IRI. With respect to any Software
purchased by IRI but licensed to Customer, the provisions of Section 6
of the Agreement, including all rights and obligations stated therein,
shall apply to Softsense and Customer.
b. Softsense shall make all shipping arrangements for Equipment purchased
by IRI, as contemplated hereby, subject to Customer's right to approve
the carrier. Softsense shall invoice IRI for shipping charges relating
to such purchases.
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c. Anything in this Addendum No. 1 to the contrary notwithstanding, the
purchase price to IRI for the Hand-Held Terminal described in Section
3 above shall be $2,500.00. The warranty coverage on Equipment sold to
IRI, as contemplated hereby, as such warranty coverage is described in
Section 5 of the Agreement, shall only be enforceable by Customer. IRI
shall be charged a Warranty Transfer fee of $300.00 which will result
in the transfer to Customer of all rights and obligations of the
Equipment Warranty Plan with respect to Equipment purchased by IRI
including the right to exercise options for Extended Equipment
Warranty Plan coverage as set forth in Paragraph 5.5.3 of the
Agreement. The determination of charges for Extended Equipment
Warranty Plan coverage for Equipment purchased by IRI shall be based
on charges paid by IRI for each Equipment item (excluding the costs of
staging, shipping and any taxes which IRI may have paid pursuant to
terms similar to those in Paragraph 23.4 of the Agreement) subject of
the Extended Equipment Warranty Plan.
d. IRI shall be entitled to the flat rate discount on Software license
fees as set forth in Section 6 hereof on the condition that IRI
complies with the Payment Policy provisions for Equipment and Software
set forth in Section 7 above.
IN WITNESS WHEREOF, Softsense and Customer have caused this Addendum No. 1
to be executed by their respective duly authorized representative.
EMRO MARKETING COMPANY SOFTSENSE COMPUTER PRODUCTS
("CUSTOMER") INC. ("SOFTSENSE")
By: /s/ X.X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------ -----------------------------------
Name: X.X. Xxxxxxx Name: Xxxxxx X. Xxxxxxxx
---------------------------- ---------------------------------
Title: President Title: Treasurer
--------------------------- --------------------------------
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