LICENSE AGREEMENT BETWEEN NETWEAVE CORPORATION AND
VERTEX INDUSTRIES, INC. LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT entered into by and between
Netweave Corporation ("Licensor"), a Delaware corporation, having
principal offices at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx,
00000, and Vertex Industries, Inc. ("Licensee"), a New Jersey
corporation, having principal offices located at 00 Xxxxx Xxxxxx,
Xxxxxxx, Xxx Xxxxxx, 00000, determines the rights and licenses granted
hereunder by Licensor to the Licensee in and to the Software
(hereinafter defined).
1. Definitions: As used in this Agreement, the following
definitions shall apply:
(a) "Licensed Product" shall mean collectively the
Software and Licensed Documentation (as hereinafter defined);
(b) "Software" shall mean the Software identified on
Schedule "A", annexed hereto and made a part hereof, in object code
form, all updates and revisions thereto supplied by Licensor during the
term hereof and all permitted copies of the foregoing;
(c) "Licensed Documentation" shall mean all documentation,
other than the Software, related to the Software supplied hereunder by
Licensor;
(d) "End User" shall mean the user that is granted a
sublicense by the Licensee to use the Licensed Product pursuant to the
terms and conditions set forth herein.
2. License and Sublicense:
(a) Licensor hereby grants to Licensee, and Licensee hereby
accepts, a non-exclusive license to develop, market, sell and support
the Licensed Product worldwide and further grants Licensee the
unrestricted right to grant sublicenses to End Users;
(b) Licensor hereby assigns to Licensee its existing
customer base for the Licensed Product as set forth on Schedule "B"
hereof and agrees to cease communications with such customers as of the
effective date of this license.
(c) Licensor hereby assigns to Licensee the right to use
the name "NetWeave" solely in connection with the marketing and sales of
sublicenses of the Licensed Product to End Users.
(d) Licensor hereby assigns to Licensee all of its right,
title and interest in and to the following Agreements:
(i) NetWeave Master Distribution Agreement dated
December 1, 1996, between NetWeave Corporation and SX Consulting ("MD").
(ii) Sales Representative Agreement between the
Sombers Group, Inc. and DAI Associates, Inc., dated April 24, 1991 (by
Sombers) and April 18, 1991 (by DAI).
(iii) NetWeave Sales Representative Agreement dated
August 1, 1995, between NetWeave Corporation and Xxx Xxxxxx &
Associates.
(e) Any sublicense granted hereunder by Licensee shall be
on terms and conditions consistent with this Agreement.
3. License Fees and Taxes: Licensee shall pay license fees for
the license granted hereunder, on a calendar quarterly basis, within ten
(10) days of quarter end, if funds were actually received by Licensee.
If funds due in a quarter were not received, Licensee shall pay Licensor such
license fees within ten (10) days of receipt by Licensee. License fees
shall be calculated according to the following schedule: (a) --
License Type Invoice Quarterly Revenues License Fee
Initial Licensing 0-$179,999 20%
Fee $180,000 and above 25%
Annual Licensing 12%
Fees
(b) All taxes based on or in any way measured by this
Agreement are included in the license fee paid hereunder;
(c) As of the effective date of this license, Licensee
shall be entitled to the proceeds of all Licensees' invoices for the
Licensed Product subject to payments due under Section 3(a) hereof;
(d) Unless otherwise specified, all payments will be made
in United States dollars and will be made by check or wire transfer to a
bank account specified by the Licensor;
(e) Late license fee payments will incur a late charge of
1.5% after fifteen (15) days of delinquency.
(f) Licensee shall pay Licensor advanced license fees in
the amount of Twenty Thousand ($20,000.00) Dollars within thirty (30)
days of all parties signing this License Agreement.
(g) Licensee shall pay to Amtrak the royalties due on
Initial License Fee and Annual License Fees pursuant to the agreement
between the Licensor and Amtrak known as Change order 9.
4. Term of Agreement: Unless otherwise terminated or cancelled
as provided herein, the term of this License Agreement shall commence on
the effective date of this Agreement and shall continue for six (6)
years from the effective date of this Agreement. This license may be
terminated in accordance with the provisions of Section 10 hereof. The
effective date hereof shall be February 17, 1997.
5. Performance Criteria: Licensee shall meet the following
performance criteria. Failure to meet the criteria shall be grounds for
termination of the License Agreement in accordance with Section 10
hereof, at the option of Licensor:
Year Minimum License Fee
1 $40,000.00
2 $50,000.00
3 $60,000.00
4 and beyond 10% annual increase from the prior year
Nothing in this Section shall modify the obligation of
Licensor to pay all license fees actually due under Section 3.
6. Protection of Licensed Product:
(a) Licensee acknowledges Licensor's representations that
the Licensed Product is the property of Licensor. Licensor retains full
proprietary rights to the Licensed Product to independently develop,
market, sell and support the Licensed Product itself, or grant licenses
to any other party, provided, however, that if the terms of such license
are more favorable than extended to Licensee, this Agreement shall be
modified to grant such more favorable terms to Licensee;
(b) Licensor shall provide Licensee with the source code
for all software associated with the Licensed Product. See Section 16
herein. It is specifically understood and agreed that Licensee shall be
permitted to retain said source code in furtherance of the license
granted by this Agreement and any sublicenses granted by Licensee in the
event: (1) Any Order of dissolution or liquidation of Licensor shall be
entered into by any Court of competent jurisdiction; or (2) a Decree or
Order for relief is entered by a Court having jurisdiction over Licensor
in an involuntary case, under any applicable bankruptcy, insolvency or
any other similar law, now or hereafter in effect, or appointing a
receiver, liquidator or similar official for any substantial part of
Licensor's property, or ordering the winding-up or liquidation of
Licensor's affairs, or granting Licensor a suspension of payments; or
(3) Licensor shall commence a voluntary case under any applicable
Federal or State bankruptcy, insolvency, or other similar law, now or
hereafter in effect, or Licensor shall consent to the entry of an Order
for relief in any involuntary action under any such law, or shall
consent to the appointment of or taking of possession by a receiver,
liquidator, trustee, custodian, creditors committee, sequestrator, or
other similar official for any substantial part of Licensor's property,
or ordering the winding-up or liquidation of Licensor's affairs, or
granting Licensor a suspension of payments; or (4) Licensor makes an
assignment for the benefit of creditors (other than solely an assignment
of money due); or (5) Licensor shall take corporate action in
contemplation of the furtherance of any of the foregoing.
(c) It is specifically understood however that this
Agreement is executory in nature and subject to rejection in Bankruptcy
Court, in which event Licensor shall, if ordered by such Court, return
the source code to Licensor and cease using same.
7. Reproduction and Modification of Software:
(a) Licensee may reproduce the Licensed Product; but all
copies of the Licensed Product, in whole or in part, shall contain all
of Licensor's restrictive and proprietary notices in form and content as
they appear on or in the Licensed Product provided to Licensee
hereunder;
(b) Licensee may modify the Software and merge it into
existing software, provided such modified Software and resulting merged
Software shall be deemed to constitute the Licensed Product for purpose
of this Agreement and, except as otherwise expressly provided herein,
shall be subject to all of the terms and conditions hereof.
8. Warranty: The Licensed Product is being licensed "as is".
9. Proprietary Rights Indemnity:
(a) Licensor shall defend or settle, at its own expense,
any claim made against Licensee and/or End Users that the use of the
Licensed Product infringes any patent, copyright, trade secret or other
proprietary right, and shall indemnify Licensee and End Users and hold
them harmless against all damages, judgments and attorneys' fees arising
out of the foregoing, provided that Licensee and End Users shall give
Licensor prompt written notice of such claim;
(b) If a claim is made that the use of the Licensed
Product infringes any patent, copyright, trade secret or other proprietary
right, Licensor shall either procure for Licensee and End Users a right
to continue using the Licensed Product, modify it to make it non-infringing,
but continue to meet the specifications therefor, or replace it with
non-infringing software of like functionality that meets the specifications
for the Licensed Product.
(c) If Licensee modifies the Licensed Product, Licensee
shall defend or settle, at its own expense, any claim made against
Licensor that the use of the Licensed Product infringes any patent,
copyright, trade secret or other proprietary right, and shall indemnify
Licensor and hold it harmless against all damages, judgments and
attorneys' fees arising out of the foregoing, provided that Licensor
shall give Licensee prompt written notice of such claim.
10. Termination/Cancellation:
(a) Licensor shall have the right to terminate this
Agreement by giving written notice to Licensee upon the occurrence of
any of the following events: (1) Licensee fails to make full and
complete payment of license fees when due and payable under Section 3,
written notice has been provided to Licensee, and Licensee fails to cure
same within ten (10) days of such notice, (2) Licensee fails to perform
any covenant or obligation under this Agreement, or under any Agreement
assigned to Licensee as part of this Agreement, and fails to correct
such nonperformance within thirty (30) days after written notice from
Licensor specifying the nature of such non-performance, (3) Licensee
sells or markets a competing product with the product being licensed
hereunder, notice has been provided to Licensee by Licensor of same, and
Licensee fails to cease selling or marketing such competing
product within fifteen (15) days of such notice, (4) Any Order of
dissolution or liquidation of Licensee shall be entered into by any
Court of competent jurisdiction; or (5) a Decree or Order for relief is
entered by a Court having jurisdiction over Licensee in an involuntary
case, under any applicable bankruptcy, insolvency or any other similar
law, now or hereafter in effect, or appointing a receiver, liquidator or
similar official for any substantial part of Licensee's property, or
ordering the winding-up or liquidation of Licensee's affairs, or
granting Licensee a suspension of payments; or (6) Licensee shall
commence a voluntary case under any applicable Federal or State
bankruptcy, insolvency, or other similar law, now or hereafter in
effect, or Licensee shall consent to the entry of an Order for relief in
any involuntary action under any such law, or shall consent to the
appointment of or taking of possession by a receiver, liquidator,
trustee, custodian, creditors committee, sequestrator, or other similar
official for any substantial part of Licensee's property, or ordering
the winding-up or liquidation of Licensee's affairs, or granting
Licensee a suspension of payments; or (7) Licensee makes an assignment
for the benefit of creditors (other than solely an assignment of money
due); or (8) Licensee shall fail generally to pay its debts as such
debts become due; or (9) Licensee shall take corporate action in
contemplation of the furtherance of any of the foregoing; or (10)
Licensee uses the License Agreement as collateral for any debt.
(b) Upon the termination of this Agreement pursuant to
this Section 10, Licensee shall pay all license fees required under Section 3
accruing up to the effective date of such termination. After the
effective date of the termination of this Agreement, Licensee's rights with
respect to the Licensed Product shall be the same as if this Agreement had
not been entered into, except that Licensee shall be entitled to all license
fees due it up to and including the effective date of such termination.
11. Change in Corporate Status: This license shall not be
affected in any manner by any change in the status of Licensor,
including, but not limited to, Licensor's merging or consolidating with
another entity, whether or not Licensor is the surviving entity, a
purchase of all or substantially all of Licensor's assets or a purchase
of its capital stock, or any other change in corporate structure or
ownership of Licensor. This license will bind and inure to the benefit
of the parties hereto and their respective successors and permitted
assigns.
12. Limitation of Liability: In no event shall either party
hereto be liable to the other party or End Users for indirect, special
or consequential damages or lost profits, arising out of or related to
this License Agreement, or the performance or breach thereof, even if
such party has been advised of the possibility thereof.
13. Updates: Until termination of this Agreement, Licensor will
offer all Licensed Product upgrades to Licensee.
14. Delivery and Acceptance: Licensor shall deliver the source
code, a master copy and one additional copy of the Licensed Product upon
execution of this Agreement.
15. Reporting: Within forty-five (45) days after the end of each
calendar quarter, Licensee shall send Licensor a written report on the
sales of the Licensed Product. This is for reporting purposes only and
shall not affect payment terms. Each report shall specify (a) the
number of copies of the Licensed Product distributed and the customer,
(b) per copy license fees and (c) the total license fees received and
due to Licensor.
16. Recordkeeping: Licensee agrees to make the following records
available to Licensor and to keep them for a period of at least three
(3) years: (a) Copies of Reports: Copies of all reports to Licensor
and copies of original agreements, bills and invoices containing the
information needed to prepare them;
(b) Customer Lists: Records of (i) the name, address and
telephone number of each customer to whom or to which any part of the
Licensed Product is distributed by or for Licensee, (ii) the name of an
individual contact if the customer is an organization and the version
number(s) of each Licensed Product distributed to each customer.
17. Audits: Licensor shall have the right, at least once per
calendar year during the term of this license, to have independent
Certified Public Accountants reasonably acceptable to Licensee, audit
all records that this license requires Licensee to be made and kept.
Licensor shall pay the auditor's fee. All audits will be in confidence,
and the auditor's will disclose to Licensor only the information
necessary to verify payments due.
18. Confidential Information:
(a) Both Licensor and Licensee acknowledge that in order
to perform under this Agreement they will have access to and will be
entrusted with confidential and proprietary information, including, but
not limited to, trade secrets, financial information, technical and
product information, and marketing strategies of the other party. The
term "trade secrets" shall include, but not be limited to, any
information or data related to the business operations or
products of the party providing said information (the "Disclosing
Party"), its customers or suppliers names, addresses or business
requirements, as any of the foregoing may exist from time-to-time,
including those which have been or are being developed, and the results
of any research or pilot programs conducted or being conducted by said
Disclosing Party (the foregoing confidential and proprietary
information, trade secrets, financial information, technical and product
information and marketing strategies hereinafter defined as the
"Proprietary Information"). Each party which receives such Proprietary
Information (the "Receiving Party") hereby agrees not to disclose any
Proprietary Information to any person, firm or entity and not to use any
such Proprietary Information, directly or indirectly, for its own
benefit or for the benefit of any person, firm or entity other than the
Disclosing Party or as authorized herein or in writing by the Disclosing
Party, for the term of this Agreement and for a period of five (5) years
thereafter;
(b) The disclosure by the Receiving Party of the
Proprietary Information to the competitors of the Disclosing Party or
the general public shall be detrimental to the best interests of the
Disclosing Party. The prevention of disclosure of Proprietary
Information to a third party will be exercised with the utmost diligence
and with the same degree of care that each party takes to preserve or
safeguard its own Proprietary Information. Each party
agrees to be responsible for any material breach, or threatened breach,
of this Agreement by said party or its officers, directors, employees or
agents. In the event of a breach, or threatened breach of this
Agreement, each party, in addition to, and not by limitation of any
other remedies available in law or equity, shall be entitled to
injunctive relief to the extent permitted by applicable law;
(c) A Receiving Party hereunder will have no obligations
with respect to any Proprietary Information if the same is (i) in the
public domain at the time of disclosure, or is subsequently made
available to the general public without restriction by the Disclosing
Party; (ii) known to the Receiving Party at the time of disclosure,
without restrictions on its use, or independently developed by the
Receiving Party, and there is adequate verifiable documentation to
demonstrate either condition; (iii) used or disclosed with prior written
approval of the Disclosing Party; (iv) required to be disclosed pursuant
to any State or Federal regulatory laws or regulations applicable to
public companies or others.
19. Miscellaneous:
(a) Licensee agrees that in the event Licensor grants a
sublicense to any customer who is not part of the existing customer base
which is being assigned to Licensee pursuant to this Agreement and for
which Licensor may not grant additional licenses and/or additional
sublicenses, it shall provide support to such customer at commercially
reasonable rates, as arranged with Licensee prior to quotation to the
customer.
(b) Licensor shall notify Licensee of any sales contracts
that may lead to an customer sublicense. Licensee shall immediately
either: (1) Log the contact as being a lead of the Licensor, or (2)
Indicate that this is a lead of Licensee, and Licensor should refrain
from further pursuit of this sale. Notwithstanding the above, Licensor
and Licensee may agree to mutual terms to jointly pursue the
opportunity.
(c) Choice of Law: This license will be governed by and
construed according to the laws of the State of New Jersey, without
regard to conflicts of law, and the Courts of the State of New Jersey
will have exclusive jurisdiction over the resolution of any conflict
arising under this Agreement;
(d) Amendment: This license may be amended or supplemented
only by a writing signed on behalf of both parties;
(e) Waiver: No waiver will be implied from conduct or
failure to enforce rights. No waiver will be effective unless in a writing
signed on behalf of the party claimed to have waived;
(f) Contingencies: Neither party will have the right to
claim damages or to terminate this license as a result of the other's
failure or delay in performance due to circumstances beyond its
reasonable control, such as labor disputes, strikes, lockouts, shortages
of or inability to obtain labor, fuel, raw materials or supplies, war,
riot, insurrection, epidemic, Act of God, or governmental action not the
fault of the non-performing party;
(g) Severability: If any part of this license is found
invalid or unenforceable, it will be enforced to the maximum extent
permitted by law, and the other parts of this license will remain in
force;
(h) Entire Agreement: This license represents the entire
agreement between the parties relating to the Licensed Product and
supersedes all prior representations, discussions, negotiations and
agreements, whether written or oral;
(i) Notices: All notices, reports, requests and other
communications required or permitted hereunder must be in writing. They
will be deemed given when: (i) delivered personally, (ii) sent by telex,
(iii) sent by commercial overnight courier with written verification of
receipt, or (iv) sent by registered or certified mail, postage prepaid -
- in each case to the respective party's address hereto:
To Licensee: Vertex Industries, Inc.
00 Xxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxx
To Licensor: Netweave Corporation
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xx. X.X. Xxxxxxxxxx
(j) Attorneys' Fees: In any suit to enforce this
Agreement, the prevailing party will have the right to recover its costs
and reasonable attorneys' fees and expenses, including costs, fees and
expenses on appeal;
(k) Relationship of Parties: The parties to this license
are independent entities. There is no relationship or partnership,
agency, employment, franchise or joint venture between the parties.
Neither party has the authority to bind the other or incur any
obligation on its behalf;
(l) Exhibits: The following exhibits are part of this
license:
Exhibit "A" Description of the Netweave
Product Line for the Vertex
License Agreement
Exhibit "B" Customer List
(m) Assignment: This Agreement may not be assigned by
either party hereto without the written consent of the other party;
(n) Survival: The provisions of Sections 3, 8, 9, 10,
12, 15,16, 18, and 19 shall survive any termination, cancellation or
expiration of this Agreement.
(o) Counterparts: This License may be executed in a
number of counterparts, and each shall be deemed to be part of the whole.
LICENSOR:
NETWEAVE CORPORATION
BY: s/ X. X. Xxxxxxxxxx
LICENSEE:
VERTEX INDUSTRIES, INC.
BY: s/ Xxxxxx X. Xxxx 2/19/97
EXHIBIT "A"
NetWeave Product Description
NetWeave is a software middleware product that allows disparate
computing systems to interoperate with each other. NetWeave supports
most major host systems, including those from IBM, Digital, Unisys,
Tandem, Stratus and large UNIX systems, as well as all of the PC, UNIX
and Macintosh workstation variants.
NetWeave allows applications on any of these platforms to
communicate with applications on other platforms, and have access to
data stored in foreign legacy or SQL databases. NetWeave services
include:
- interactive messaging
- queued messaging
- broadcast messaging
- remote data access and update
- data replication
- file transfer
- data conversion
- transaction management
- security
The NetWeave Product Suite consists of the following components:
1. The NetWeave Distributed Services Product ("NWDS"),
consisting of an application library and a NetWeave Agent process, which
performs many of the value added services.
2. The Reliable File Transfer Utility, which is available as
both an API and a command line program, and which is used for the
reliable restartable transfer of binary and text files between NWDS
supported hardware platforms.
3. The NetWeave Utility which allows real time replication
driven by an update log file rather than by instructing the application
with the NetWeave API.
4. The NetWeave Version 2 ("NW2") application (i.e. "old
NetWeave"), is a previous, incompatible version of the NetWeave product
in use by approximately 50% of the NetWeave customer base. Sales of NW2
still occur to existing customers wishing to expand, but not upgrade,
their NetWeave software.
5. Tandem Print Process.
6. NetWeave Demo Modules, consisting of a Windows NT-based
script set, a Visual Basic messaging module for use between two Windows
based PCs, and PowerBuilder guaranteed messaging facility, for use on
Windows PCs as well. In addition, a script execution facility known as
TST exists on all platforms, and an Interactive Test Facility known as
WinDemo exists for use on Windows based PCs.
7. The NetWeave documentation sets for both NWDS and NW2. The
NWDS documentation set consists of an API guide, a configuration guide
and a programmer's guide. The NW2 documentation set consists of an API
guide and a configuration guide.
NetWeave pricing is done as Initial Licensing Fees ("ILF") and
follow on Annual Licensing Fees ("ALF"). The ILF pricing model is three
dimensional, in that license options (database access, broadcasting),
machine size (PC, Midrange Server), and quantity discounting play a role
in determining the price of a given configuration. A mandatory ALF is
charged to all customers, which provides to the customer software
upgrades resulting from product enhancements, defect remedies and
operating system updates.
EXHIBIT "B"
NetWeave Corporation
Customer List
Europe
CUSTOMER CITY COUNTRY
ALTA Copernhagen Denmark
Apple Cork Ireland
Bankhaus Aufhauser Munich Germany
BHP Melbourne Australia
Credit Lyonnais (CLY) Paris France
Credit Agricole (CNCA) Paris France
Dell Limerick Ireland
Dell Asia Pacific Penang Malysia
Hungarian State Railways Budapest Hungary
Xxxx Xxxxxxx Sydney Australia
General Bank Rotterdam The Netherlands
Lloyds Bank London England
Logica London England
New Zealand Stock Exchange Wellington NewZealand
North Umbria Police North Umbria UK
Societe Generale Frankfurt Germany
NetWeave Corporation
Customer List
United States
Customer City State
AMTRAK Philadelphia PA
Apple Computer, Inc. Austin TX
Apple Computer Inc. Napa CA
Apple Computer Inc. Fountain CO
BHC Securities Philadelphia PA
BP Oil Company Cleveland OH
Bridge Data Systems Xx. Xxxxx XX
Xxxxx & Xx. Xxxxxx XX
Chevron Information Technology San Ramon CA
Competitive Media Reporting West Chester PA
Dell Computer Corporation Austin TX
Digi Trade, Inc. New York NY
Electronic Payment Services Wilimington DE
Kaiser Permanente Walnut Creek CA
Maryland Procurement Fort Xxxxx MD
Mayo Foundation Rochester MN
Naval Air Warfare Center Indianapolis IN
PPG Industries, Inc. Pittsburgh PA
PPG Industries, Inc. Cleveland OH
PPG Industries, Inc. Deleware OH
QVC, Inc. West Chester PA
Repap Wisconsin, Inc. Xxxxxxxx WI
Societe General New York NY
Tandem Computers, Inc. Cupertino CA
USAA San Antonio TX
NetWeave Corporation
Customer List
Canada
Customer City/State Country
TELUS Communications,Inc. Edmonton, Alberta Canada
BCTEL Systems Solutions, Inc. Xxxxxxx, Xxxxxxx Xxx Xxxxxx
Xxxx Xxxxxx Xxxxxx, Xxxxxx Xxxxxx
Mediatel Xxxx Canada Ottawa, Ontario Canada
Xxxx Canada Ottawa, Ontario Canada
Xxxx Sygma Toronto, Ontario Canada
Maritime Telegraph & Telephone Halifax, Nova Scotia Canada
MTS Netcom, Inc. Winnipeg, Manitoba Canada
New Brunswick Teleph Co., Ltd St Xxxx Xxx Brunswk Canada
NewTel Communications St John's Newfundlnd Canada
Quebec Telephone Rimouski, Quebec Canada
Sask Tel Procurement Regina Saskatchewan Canada
SHL Systemhouse Inc. Xxxxxxxx Xxxxxxx Xxxxxx
Stentor Canadian Network Mgmt Ottawa Ontario Canada
Stentor (SCNM) Xxxxxx Xxxxxxx Xxxxxx
