Exhibit 10.27
Portions of this Exhibit have been omitted pursuant to a confidential treatment
request filed with the Securities and Exchange Commission. An (*) identifies
where such confidential treatment has been omitted. The omitted portions have
been filed separately with the Securities and Exchange Commission.
SOFTWARE AND TRADEMARK LICENSE AGREEMENT
This Software and Trademark License Agreement (the "AGREEMENT") is made
as of November 18, 1998 (the "EFFECTIVE DATE") by and between Xxxxxx.xxx,
Inc., a Delaware corporation with its principal place of business at 0000 Xxxxxx
Xxx. Xxxxxxx, Xxxxxxxxxx 00000 ("AMAZON"), Junglee Corp., a Delaware
corporation, with its principal place of business at 0000 Xxxxxx Xxx. Xxxxxxx,
Xxxxxxxxxx 00000 ("JUNGLEE") and Restrac, Inc. a Delaware corporation with its
principal place of business at 00 Xxxxxxxx Xxx. Xxxxxxxxx, XX 00000 ("RESTRAC").
Junglee and Amazon shall hereinafter collectively be referred to as "SELLER".
RECITALS
A. WHEREAS, Junglee has developed proprietary computer Software,
defined below, which searches, retrieves, organizes and presents employment data
from disparate sources; and
B. WHEREAS, the parties desire that Restrac obtain an exclusive license
to use such Software and certain related trademarks solely in accordance with
the terms and conditions of this Agreement.
NOW THEREFORE, for good and valuable consideration the parties hereby
agree as follows:
1. DEFINITIONS.
"FIELD OF USE" means *****************************************
*****************************************************************************
*****************************************************************************
*****************************************************************************
*****************************************************************************
*****************************************************************************
*******************************.
"JUNGLEE TRADEMARKS" means the trademarks, service marks, logos,
slogans, and trade names listed on EXHIBIT B.
"SOFTWARE" means the software described on EXHIBIT A, AS IT
EXISTS AS OF THE EFFECTIVE DATE, and any other associated code and documentation
provided by Seller hereunder. The Software does not include any Third Party
Software.
"SOURCE CODE" means the source code of the Software, together
with any associated programmers' notes and/or technical documentation.
"THIRD PARTY SOFTWARE" means the third party software products
set forth on EXHIBIT A.
22
2. GRANT OF RIGHTS.
2.1 SOURCE CODE LICENSE. Subject to the terms and conditions of this
Agreement, Seller hereby grants Restrac a paid-up, irrevocable (except as
provided in Section 9.2), non-exclusive (except as provided in Section 2.3
below), non-transferable (except as provided in Section 14.6 below),
non-sublicensable (except as provided in Section 2.5 below), worldwide license
to internally use, copy, modify and make derivative works from the Source Code
of the Software to provide information, products and services marketed solely
within the Field of Use.
2.2 OBJECT CODE LICENSE. Subject to the terms and conditions of this
Agreement, Seller hereby grants Restrac a paid-up, irrevocable, non-exclusive
(except as provided in Section 2.3 below) and non-transferable (except as
provided in Section 14.6 below) worldwide license to use, copy, sublicense
(provided such sublicense complies with Section 2.4 below) and distribute the
object code of the Software to provide information, products and services
marketed solely within the Field of Use.
2.3 EXCLUSIVE USE. For a period ***************** commencing upon the
Effective Date, Seller shall neither use nor market any Software to provide
services within the Field of Use. For a period ***************** commencing upon
the Effective Date, Seller will not use nor authorize another to use the Junglee
Marks in connection with marketing any services specifically within the Field of
Use. **************************************************************************
*************************************************************************
*****************************************************************************
*****************************************************************************
********************************************************. Notwithstanding the
foregoing, Seller shall not at any time sell, license or otherwise transfer
(collectively, "transfer") all or substantially all of the Software or any of
the Junglee Marks to any third party if the terms of such transfer permit such
third party broad usage of the Software or the Marks within the Field of Use
similar to, or broader than, that granted under this Agreement or if such
transfer includes the Source Code; PROVIDED, HOWEVER, that this prohibition on
transfer shall not apply to transfers to Amazon's affiliates or to a third party
who acquires all or substantially all of Amazon's assets or to the surviving
entity in a merger in which Amazon's stockholders prior to the merger hold less
than a majority of the shares of such surviving entity following such merger.
2.4 RESTRICTIONS.
2.4.1 Restrac has no right to, and shall not, provide access
to, transfer, sublicense or otherwise distribute the Software Source Code to any
third party, except as expressly provided in this Agreement, or as approved in
advance and in writing by Seller.
2.4.2 Restrac will not (a) use, copy, modify, access or make
derivative works from the Software except for use in the Field of Use and
subject to all other restrictions set forth in this Agreement; or (b) copy or
modify the Source Code for the Software, except as necessary to use the Software
in accordance with the license rights granted under Sections 2.1 and 2.2, and
subject to all other restrictions set forth in this Agreement.
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2.4.3 Restrac shall not (a) permit any third party to reverse
engineer, disassemble, decompile or otherwise attempt to derive source code from
the object code of the Software (and shall include restrictions prohibiting such
activities in all agreements relating to the Software), or (b) make the Software
available to any third parties other than as expressly permitted in this
Agreement.
2.4.4 Subject to the restrictions set forth elsewhere in this
Agreement, Restrac shall not sublicense the object code of the Software, nor use
such Software to provide services within the Field of Use, unless such
sublicense or service is provided pursuant to a written agreement which:
(a) Contains terms and conditions to protect Seller and its
proprietary rights in the Software and Confidential Information to at
least the same degree as the terms and conditions of this Agreement;
(b) Makes no warranties or representations on behalf of
Seller;
(c) Does not grant any rights with respect to the Software
beyond those granted to Restrac under this Agreement; and
(d) Only allows further sublicensing or access under a written
agreement containing these same terms and conditions.
Restrac shall keep written records of all such agreements and shall permit
Seller to review all such agreements for compliance with the provisions of this
Agreement upon providing ten (10) days written notice to Restrac.
2.5 SOURCE CODE ESCROW. Restrac may provide access to the Source Code
to third parties solely (i) in accordance with the terms and conditions of a
source code escrow agreement substantially in the form of EXHIBIT C hereto
("ESCROW AGREEMENT"); and (ii) provided that each such third party agrees in
writing to be bound by such Escrow Agreement in the course of licensing Restrac
products which incorporate the Software. Such access shall be limited to each
third party using the Source Code solely to maintain and support the Software
for its internal business purposes and solely within the Field of Use. Seller
shall be made an express third-party beneficiary of each such Escrow Agreement,
with the right to enforce such agreement in accordance with its terms. Restrac
shall provide Seller with written notice of (i) each third party who enters into
an Escrow Agreement within thirty (30) days of such execution; (ii) each third
party who makes a claim or demand that it is entitled to receive the Source Code
under an Escrow Agreement, together with reasonable details of such claim,
within five (5) days of Restrac becoming aware of such claim; and (iii) the
occurrence of any such release within five (5) days thereafter. Restrac shall
use its best efforts to prevent any such release of the Source Code and shall
keep Seller reasonably informed of its response to any such claim or demand.
2.6 ASSIGNMENT OF THIRD PARTY SOFTWARE LICENSES. Seller will use its
reasonable efforts to assign to Restrac all license agreements granting Seller
rights in the Third Party
24
Software, and Restrac agrees to accept such assignment. To the extent such
agreements are assigned to Restrac, Restrac hereby assumes all responsibilities
and obligations under such agreements.
2.7 RESERVATION OF RIGHTS. Except as expressly provided herein, Seller
does not grant to Restrac any right or license, express or implied, in any of
its intellectual or tangible property, including without limitation the Software
or Junglee Trademarks. Seller and its suppliers reserve all rights and licenses
in and to the Software and Junglee Trademarks not expressly granted to Restrac
under this Agreement.
2.8 COVENANT NOT TO XXX. Seller hereby covenants and agrees that, for
so long as the license for the Source Code is in effect hereunder, it shall not
institute, or have instituted, any suit or action at law or in equity against
Restrac, its successors or assigns, relating to the marketing of information,
products and services by Restrac solely within the Field of Use using any part
of the Software which is the subject of a patent or patent application owned by
or licensed to Seller and existing on the date of this Agreement.
3. PAYMENTS. In consideration of the licenses granted hereunder, Restrac shall
issue to Amazon the securities, and pay Seller the amounts, allocated to this
Agreement in Schedule 1.5 of the Asset Purchase Agreement between the parties
dated as of even date herewith (the "ASSET PURCHASE AGREEMENT").
4. OBLIGATIONS OF RESTRAC.
4.1 SUPPORT. Except for Seller's transition obligations as specifically
set forth in Section 8 of, and EXHIBIT C to, the Asset Purchase Agreement,
Restrac shall be solely responsible for all support, maintenance and development
of the Software in connection with its use by Restrac in accordance with this
Agreement.
4.2 RESTRAC COVENANTS. Restrac will: (i) conduct business in a manner
that reflects favorably at all times on the Software, Junglee Trademarks, and
the good name, good will and reputation of Seller; (ii) avoid deceptive,
misleading or unethical practices that are or might be detrimental to Seller,
the Junglee Trademarks, Software or the public; (iii) make no false or
misleading representations with regard to Seller or the Software; and (iv) not
publish or employ, or cooperate in the publication or employment of, any
misleading or deceptive advertising material with regard to Seller or the
Software.
4.3 COMPLIANCE WITH U.S. EXPORT LAWS. Restrac acknowledges that all
Software including documentation and other technical data are subject to export
controls imposed by the U.S. Export Administration Act of 1979, as amended (the
"ACT"), and the regulations promulgated thereunder. Restrac will not export or
reexport (directly or indirectly) any Software or documentation or other
technical data therefor without complying with the Act and the regulations
thereunder.
25
4.4 COSTS AND EXPENSES. Except as expressly provided herein or agreed
to in writing by Seller and Restrac, Restrac will pay all costs and expenses
incurred in the performance of Restrac's obligations under this Agreement.
4.5 INFRASTRUCTURE. Except as provided in EXHIBIT C to the Asset
Purchase Agreement, Restrac shall be solely responsible for establishing all
infrastructure and facilities necessary to support the Software and related
hardware, including, without limitation, implementing all electrical
connections, network connections, HVAC, and other site requirements.
4.6 SOLICITATION OF EMPLOYEES. Because of the trade secret subject
matter of each party's business, each party agrees that, except as expressly
permitted in writing by the other party, it will not solicit the services of any
of the employees, consultants, or suppliers of the other party for a period of
three (3) years commencing upon the Effective Date.
5. ENFORCEMENT. Restrac will enforce all of its agreements with third parties to
the extent that such agreements materially relate to or could materially affect
Seller or its rights. As such agreements materially relate to or could
materially affect Seller or its intellectual property, including without
limitation its Confidential Information and Software, Restrac shall make Seller
an express third party beneficiary of the clauses giving rise to such relation
or effect in each such agreement, with the right, in Seller's sole discretion,
to enforce such clauses in each such agreement in accordance with its terms.
Upon receipt of notice of any material breach of such clauses from Seller,
Restrac shall promptly commence appropriate enforcement action. Restrac will
provide Seller with written notice of any material breach of any of the
foregoing agreements that relates to or could affect Seller or its intellectual
property promptly upon learning of any such breach, and shall co-operate with
Seller in prosecuting any such breach.
6. PROPRIETARY RIGHTS.
6.1 OWNERSHIP. As between Restrac and Seller, Seller owns and shall
retain all right, title and interest in and to the Software, including
without limitation all copyrights, patents, trade secrets and other
intellectual property rights therein. Restrac shall not encumber, grant a
security interest in, register, or otherwise take any action inconsistent
with Seller's ownership interest in the Software. As between Restrac and
Seller, Restrac shall own all right, title and interest in and to any
modifications or derivative works of the Software created by or for Restrac
under Section 2.1 (excluding any modifications or derivative works that may
be made by Seller, other than as may be expressly agreed in writing by the
parties), and subject to Seller's underlying rights in the Software. At no
time during or after the term of this Agreement shall Restrac challenge or
assist others to challenge Seller's intellectual property rights in the
Software. Subject to the following three (3) sentences, Seller shall have the
sole right to prosecute any infringements of Seller's intellectual property
rights in the Software. However, if such infringement relates solely to the
Field of Use, and does not affect Seller's rights or relationships outside of
the Field of Use, Restrac shall have the sole right to prosecute such
infringement for so long as Section 2.3 is in effect. If Section 2.3
terminates or expires, then either party shall have the right to prosecute
such infringement that relates solely to the Field of Use and does not affect
Seller's rights or
26
relationships outside of the Field of Use. If an infringement materially affects
the Field of Use, but is not solely related to the Field of Use, Restrac may
prosecute such infringement, solely as it relates to the Field of Use, only if
Seller does not take affirmative action to prosecute such infringement within
sixty (60) days of its receipt of written notice of such infringement from
Restrac. To the extent that Restrac obtains any patents which represent an
improvement to the Software and such patents are filed within five (5) years of
the Effective Date ("RESTRAC SOFTWARE PATENTS"), Restrac hereby covenants and
agrees that it shall not institute, or have instituted, any suit or action at
law or in equity against the Seller, or any wholly-owned subsidiaries,
successors or assigns of the Seller, claiming infringement of any of the Restrac
Software Patents. To the extent that Seller obtains any patents which represent
an improvement to the Software and such patents are filed within five (5) years
of the Effective Date ("SELLER SOFTWARE PATENTS"), Seller hereby covenants and
agrees that it shall not institute, or have instituted, any suit or action at
law or in equity against Restrac, or any wholly-owned subsidiaries, successors
or assigns of Restrac, claiming infringement of any of the Seller Software
Patents.
6.2 PROPRIETARY NOTICES. Restrac shall not remove, obscure or alter
Seller's copyright or patent notices on the Software, except as may be
reasonably requested by Seller.
6.3 TRADEMARK USE.
(a) TRADEMARK USE. During the first five (5) years of the term of
this Agreement, Restrac may display the Junglee Trademarks on and in connection
with the Software. Restrac's use of the Junglee Trademarks shall not create any
right, title or interest therein. Restrac shall use the Junglee Trademarks only
in a manner which complies in all material respects with Seller's then-current
trademark guidelines, and all such use shall be for Seller's benefit.
(b) SELLER APPROVAL. Restrac shall submit to Seller all
representations of the Junglee Trademarks that Restrac intends to use for
Seller's approval of design, color, and other details. Restrac shall not
publish, disseminate, exhibit, or otherwise distribute any material bearing such
representations without Seller's prior approval. Restrac shall submit to Seller
prior to publication any advertising, press release, promotion, marketing
materials, and publicity used by Restrac in its efforts to promote Seller or the
Restrac Service for Seller's prior written approval, which approval shall not be
unreasonably withheld. If Seller does not approve of any materials submitted by
Restrac to Seller under this Section 6.3(b), Seller will provide comments in
writing detailing Seller's reasons for such rejection. If such comments are not
received by Restrac within ten (10) business days of Seller's receipt of such
materials, such materials shall be deemed approved.
(c) GOODWILL. If Restrac, in the course of promoting and marketing
its products or services, acquires any goodwill or reputation in any of the
Junglee Trademarks, all such goodwill or reputation shall automatically vest in
Seller when and as, on an on-going basis, such acquisition of goodwill or
reputation occurs, without any separate payment or other consideration of any
kind to Restrac and Restrac agrees to take all such actions necessary to
27
effect such vesting. Restrac shall not contest the validity of any of the
Junglee Trademarks or Seller's exclusive ownership of them.
(d) ADOPTION OF MARKS. Restrac shall not adopt, use, or register,
whether as a corporate name, trademark, service xxxx or other indication of
origin, any of the Junglee Trademarks, or any word or xxxx confusingly similar
to the Junglee Trademarks in any jurisdiction.
(e) NO CONTINUING RIGHTS. Upon any termination of this Agreement in
its entirety, Restrac will immediately cease all display, advertising and use of
all Junglee Trademarks and will not thereafter use, advertise or display any
trademark, trade name, logo or designation which is, or any part of which is,
similar to or confusing with any Seller Trademark.
(f) OBLIGATION TO PROTECT. Restrac agrees to use reasonable efforts
to protect Seller's proprietary rights in the Software and Junglee Trademarks,
and to cooperate at Seller's expense in Seller's efforts to protect such
proprietary rights. Restrac agrees to promptly notify Seller of any known or
suspected breach of such proprietary rights that comes to Restrac's attention.
7. CONFIDENTIALITY.
7.1 CONFIDENTIAL INFORMATION. "Confidential Information" means (a) the
terms and conditions of this Agreement; and (b) any and all other information
disclosed by one party to the other which is marked "confidential" or
"proprietary," including oral information which is designated confidential at
the time of disclosure, provided that it is reduced to a written summary marked
"confidential" which is supplied to the other party within thirty (30) days of
the oral disclosure. All information regarding the Software, including without
limitation, all information with respect to the use, installation and operation
of the Software, shall be deemed Seller Confidential Information whether or nor
it is designated as Confidential Information.
7.2 EXCLUSIONS. "Confidential Information" does not include any
information that the receiving party can demonstrate by written records: (a) was
rightfully known to the receiving party prior to its disclosure hereunder by the
disclosing party; (b) is independently developed by the receiving party; (c) is
or becomes publicly known through no wrongful act of the receiving party; (d)
has been rightfully received from a third party whom the receiving party has
reasonable grounds to believe is authorized to make such disclosure without
restriction; (e) has been approved for public release by the disclosing party's
prior written authorization; or (f) must be produced or disclosed pursuant to
applicable law, regulation or court order, provided that the receiving party
provides prompt advance notice thereof to enable the disclosing party to seek a
protective order or otherwise prevent such disclosure. In addition, either party
may disclose the existence and terms of this Agreement in connection with a
potential acquisition of substantially the entire business of such entity
relating to the Field of Use or a private or public offering of such party's
securities, provided that such party shall at all times use reasonable efforts
to limit the disclosure of, and protect the confidentiality of all such
information. Such party will provide the other with advanced notice of any such
potential acquisition or private or public offerings.
28
7.3 PRESERVING CONFIDENTIALITY. Each party hereby agrees that it shall
not use any Confidential Information received from the other party other than as
expressly permitted under the terms of this Agreement or as expressly authorized
in writing by the other party. Each party shall use the same degree of care to
protect the other party's Confidential Information as it uses to protect its own
Confidential Information of like nature, but in no circumstances less than
reasonable care. Neither party shall disclose the other party's Confidential
Information to any person or entity other than its officers, employees and
consultants who need access to such Confidential Information in order to effect
the intent of this Agreement.
7.4 SOURCE CODE. Restrac acknowledges that the Source Code of the
Software is highly valuable and sensitive Seller Confidential Information, and
Restrac shall, if such an agreement is not already in effect with the applicable
individual and entity, require each employee, subcontractor and consultant given
access to the Source Code to first sign a confidentiality agreement with Restrac
that protects the Source Code to at least the same extent as the terms of this
Agreement. Restrac shall make Seller an express third-party beneficiary of each
such agreement, with the right, in Seller's sole discretion, to enforce such
agreement in accordance with its terms. Restrac will use its reasonable best
efforts to implement procedures to maintain the confidentiality of all Source
Code in its possession or control, including without limitation procedures to
control the access to the Source Code. Except as specifically permitted in
Section 2.5 in connection with a source code escrow, or 14.6 of this Agreement
in connection with the sale of the business of Restrac, Restrac shall not allow
any third-party to access the Source Code unless such access is first approved
in writing by Seller in each instance or unless such third party is an employee,
subcontractor or consultant of Restrac who has complied with this Section 7.4.
Restrac shall at all times keep all copies of the Source Code at Restrac 's
principal corporate offices, which are currently located at the address first
set forth above. Any use or storage of copies of the Source Code at any other
locations is expressly prohibited, unless prior written permission has been
granted by Seller. Restrac hereby assures Seller that it shall use its
reasonable best efforts and whatever means reasonably necessary to prevent
removal of or access to the Source Code by outside electronic, networked or
other means from the location designated above. Restrac shall keep a written log
of all individuals who have access to the Source Code, and shall promptly
provide Seller with a copy of such log from time to time upon Seller's
reasonable request.
8. REPRESENTATIONS AND WARRANTIES.
8.1 BY SELLER. Seller represents and warrants that: (a) Seller has not
granted, and will not grant during the term of this Agreement, any rights in or
to the Software that conflict with the rights granted to Restrac hereunder; and
(b) Seller has the right, power and authority to grant the rights and licenses
specified in this Agreement.
8.2 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, ALL
SELLER SERVICES AND SOFTWARE ARE PROVIDED TO RESTRAC "AS IS." EACH PARTYMAKES NO
OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE,
REGARDING ANY SOFTWARE OR
29
SERVICES, AND EACH PARTY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. SELLER DOES NOT WARRANT
THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE, THIRD-PARTY SOFTWARE OR ANY
RELATED SERVICES WILL MEET RESTRAC'S REQUIREMENTS OR THAT THE OPERATION OF THE
SOFTWARE, THIRD-PARTY SOFTWARE, SERVICE OR HOSTING ENVIRONMENT WILL BE
UNINTERRUPTED OR ERROR-FREE.
8.3 NO WARRANTY AS TO HOSTING SERVICES OR THIRD PARTY SOFTWARE. ALL
THIRD PARTY SERVICES (INCLUDING HOSTING SERVICES), AND THE THIRD PARTY SOFTWARE
IS PROVIDED TO RESTRAC "AS IS." SELLER MAKES NO WARRANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING ANY THIRD-PARTY SERVICES,
OR THIRD-PARTY SOFTWARE, AND SELLER SPECIFICALLY DISCLAIMS ANY IMPLIED
WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR
PURPOSE.
8.4 NO WARRANTY AS TO FINANCIAL OUTCOME. Restrac acknowledges that
Restrac has no expectation and has received no assurances that any the Software
or any related services will generate any anticipated amount of profits, or that
Restrac will receive any amount of profits by virtue of this Agreement.
9. DURATION AND TERMINATION OF AGREEMENT.
9.1 TERM. Except as provided for herein, the term of this Agreement
shall commence on the Effective Date and continue perpetually.
9.2 TERMINATION. Notwithstanding the provisions of this Section 9 or
any other provisions of this Agreement, this Agreement, or portions of this
Agreement as the case may be, may be terminated at any time as set forth below.
(a) SELLER TERMINATION FOR CAUSE. Until the fifth anniversary of
the Effective Date of this Agreement, Seller may terminate Restrac's license for
the Source Code set forth in Section 2.1 if Restrac intentionally or by gross
negligence materially fails to perform or is in default of any of its
obligations, duties or responsibilities relating to the Software source code
under Sections 2.4.1, 2.4.3, 2.5 or 7 of this Agreement, Restrac fails to remedy
such breach within thirty (30) days following Restrac's receipt of written
notice of such breach and such breach is continuing at the time such termination
becomes effective.
(b) RESTRAC TERMINATION FOR CAUSE. Restrac may terminate this
Agreement at any time in the event that Seller fails to perform any material
obligation, warranty, duty or responsibility or is in default with respect to
any material term or condition undertaken by Seller under this Agreement and
such failure or default continues unremedied for a period of thirty (30) days
following Seller's receipt of such written notice of such failure or default.
30
(c) EFFECT OF TERMINATION. Upon any termination of this Agreement
by Restrac all licenses hereunder shall immediately terminate and each party
shall promptly return all Confidential Information of the other party. Upon any
termination by Seller pursuant to Section 9.2(a) above, all Restrac's license to
the Source Code set forth in Section 2.1 shall immediately terminate and Restrac
shall promptly return all Seller Confidential Information relating to the Source
Code.
(d) NO DAMAGES FOR TERMINATION. NEITHER SELLER NOR RESTRAC SHALL,
AS THE CASE MAY BE, BE LIABLE TO THE OTHER FOR DAMAGES OF ANY KIND, INCLUDING
INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE TERMINATION BY IT OF THIS
AGREEMENT IN ACCORDANCE WITH THIS SECTION 9. RESTRAC WAIVES ANY RIGHT IT MAY
HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION BY SELLER OF THIS
AGREEMENT IN ACCORDANCE WITH THIS SECTION 9 UNDER THE LAW OF ANY TERRITORY OR
OTHERWISE, OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT. Neither Seller
nor Restrac, as the case may be, will be liable to the other on account of
termination of this Agreement in accordance with this Section 9 for
reimbursement or damages for the loss of goodwill, prospective profits or
anticipated income, or on account of any expenditures, investments, leases or
commitments made by either Seller or Restrac, as the case may be, or for any
other reason whatsoever based upon or growing out of such termination. Restrac
acknowledges that (i) Restrac has no expectation and has received no assurances
that any investment by Restrac in the Software will be recovered or recouped,
and (ii) Restrac will not have or acquire by virtue of this Agreement or
otherwise any vested, proprietary or other right in the Software or in
"goodwill" created by its efforts hereunder. THE PARTIES ACKNOWLEDGE THAT THIS
SECTION HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR SELLER TO ENTER INTO THIS
AGREEMENT AND THAT SELLER WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE
LIMITATIONS OF LIABILITY AS SET FORTH HEREIN.
(e) SURVIVAL. Sections 2.2, 2.4, 5, 6.1, 6.2, 7, 9.2(c), 9.2(d) and
10 through 14 shall survive any termination or expiration of this Agreement.
10. RELATIONSHIP OF THE PARTIES. Restrac's relationship with Seller during the
term of this Agreement will be that of an independent contractor. Neither party
will have, and will not represent that it has, any power, right or authority to
bind the other party, or to assume or create any obligation or responsibility,
express or implied, on behalf of the other party or in the other party's name,
except as herein expressly provided.
11. INDEMNIFICATION.
11.1 INDEMNIFICATION OF RESTRAC. Seller will, at its expense, defend
and hold harmless Restrac against and, subject to the limitations set forth
herein, pay all costs and damages made in settlement or awarded against Restrac
and all reasonable attorney's fees and costs of litigation resulting from any
claim based on an allegation that the Software or Junglee Trademarks, when
31
used as permitted under this Agreement, infringe a U.S. Patent or foreign
equivalent thereof issued as of the Effective Date, copyright, trade secret or
trademark of a third party. Notwithstanding the foregoing, in the event that the
Software or Junglee Trademarks or any portions thereof, is held, or in Seller's
reasonable opinion, is likely to be held to constitute an infringement, Seller,
at its option and expense, shall either (i) modify or replace such infringing
Software or Junglee Trademarks so as to make them non-infringing or (ii) procure
the right to continue to use such infringing Software or Junglee Trademarks.
11.2 NO COMBINATION CLAIMS. Notwithstanding Section 11.1, Seller shall
not be liable to Restrac for any claim arising from or based upon the
combination, operation or use of any Software with equipment, data or
programming not supplied by Seller, or arising from any alteration or
modification of the Software by a party other than Seller.
11.3 INDEMNIFICATION OF SELLER. Except for claims indemnified by Seller
in Section 11.1 above (as limited by Section 11.2), Restrac agrees to indemnify
Seller (including paying all reasonable attorneys' fees and costs of litigation)
against and hold Seller harmless from, any and all claims by any other party
resulting from Restrac's and/or Restrac's representatives', distributors',
and/or contractors' acts, omissions or misrepresentations, regardless of the
form of action, and excluding any claims that would have not have arisen but for
Seller's breach of this Agreement.
11.4 PROCEDURES FOR INDEMNIFICATION. If any action, suit or proceeding
will be commenced by a third party against, or any claim or demand be asserted
against, Seller or Restrac, as the case may be, in respect of which Seller or
Restrac is entitled to demand indemnification under Section 11 of this
Agreement, then as a condition precedent thereto, the party seeking
indemnification ("INDEMNITEE") will promptly notify the other party
("INDEMNITOR") in writing to that effect and with reasonable particularity. The
Indemnitor will have the right to assume the control of the defense, compromise
or settlement of such action, suit, proceeding or claim, including the selection
of counsel, subject to the right of the Indemnitee to participate (at its own
expense and with counsel of its choice) in the defense, compromise or settlement
of such action, suit, proceeding, claim or demand, and in connection therewith
the Indemnitee will cooperate fully in all respects with the Indemnitor in any
such defense, compromise or settlement. The Indemnitor will not compromise or
settle any such action, suit, proceeding, claim or demand without the prior
written consent of the Indemnitee, which consent will not be unreasonably
withheld or delayed. So long as the Indemnitor is defending in good faith any
such action, suit, proceeding, claim or demand asserted by a third party against
the Indemnitee, the Indemnitee will not settle or compromise such action, suit,
proceeding, claim or demand without the prior written consent of the Indemnitor,
which consent will not be unreasonably withheld or delayed. The Indemnitee will
make available to the Indemnitor or its agents all records and other materials
in the Indemnitee's possession reasonably required for contesting any third
party claim or demand. If the Indemnitor will fail to promptly and adequately
defend any such action, suit, proceeding, claim or demand, or if there is an
inherent conflict between the legal or factual positions of Indemnitor and
Indemnitee, then the Indemnitee may defend, through counsel of its own choosing,
such action, suit, proceeding, claim or demand and (so long as Indemnitee gives
32
the Indemnitor at least ten (10) days' notice of the terms of the proposed
settlement thereof and permits the Indemnitor to then undertake the defense
thereof if Indemnitor objects to the proposed settlement) to settle such action,
suit, proceeding, claim or demand and to recover from the Indemnitor the amount
of such losses.
11.5 EXCLUSIVE REMEDY AND ENTIRE LIABILITY. THE PROVISIONS OF SECTION
11 STATE RESTRAC'S SOLE AND EXCLUSIVE REMEDY, AND SELLER'S SOLE AND EXCLUSIVE
DUTY AND LIABILITY FOR ANY CLAIM OF PATENT, TRADEMARK, TRADE SECRET, COPYRIGHT
OR OTHER PROPRIETARY RIGHTS INFRINGEMENT.
12. LIMITED LIABILITY. EXCEPT AS A RESULT OF A BREACH OF SECTIONS 2.4, 2.5, 4.6,
OR 7, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES SUFFERED BY THE
OTHER PARTY, ITS AFFILIATES, DISTRIBUTORS, CUSTOMERS OR OTHERS ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE SOFTWARE OR SERVICE, FOR ALL CAUSES OF ACTION
OF ANY KIND (INCLUDING TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY AND BREACH
OF WARRANTY) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS
ESSENTIAL PURPOSE OR OTHERWISE. EXCEPT AS A RESULT OF A BREACH OF SECTIONS 2.4,
2.5, 4.6 OR 7, IN NO EVENT SHALL EITHER PARTY'S LIABILITY HEREUNDER EXCEED THE
CASH AMOUNTS PAID BY RESTRAC TO SELLER HEREUNDER.
13. ARBITRATION.
13.1 AGREEMENT TO SUBMIT. Except for disputes arising out of or related
to Seller's rights in the Software or Junglee Trademarks, or either party's
rights in its Confidential Information, the parties agree to submit disputes
between them arising out of or relating to this Agreement and its formation,
breach, performance, interpretation and application to arbitration as follows:
13.2 NOTICE. Each party will provide written notice to the other party
of any dispute within six (6) months of the date when the dispute is first
discovered. If a party fails to provide such notice, recovery on the dispute
will be barred.
13.3 ARBITRATION RULES. Arbitration will be conducted pursuant to the
Commercial Arbitration Rules of the American Arbitration Association, as
modified herein. The venue for Arbitration shall be Seattle, Washington if filed
by Restrac, and Boston, Massachusetts if filed by Seller. Within fifteen (15)
days after the date that written notice is provided to the other party, each
party will appoint a single arbitrator, and within an additional fifteen (15)
days thereafter, the two parties so chosen will appoint a third arbitrator. All
arbitrators will have knowledge of and experience regarding the computer
industry. The arbitration hearing will be commenced within sixty (60) days after
the appointment of all three arbitrators and the hearing will be completed and
an award rendered in writing within thirty (30) days after the commencement of
33
the hearing, unless the arbitrators determine that exceptional circumstances
justify delay. Each party will have the right to take up to four (4) evidentiary
depositions, and exchange one set of document production requests and one set of
not more than twenty-five interrogatories, without subparts, prior to the
hearing. The arbitration award will be final and binding and may be enforced in
any court of competent jurisdiction.
14. GENERAL.
14.1 WAIVER. The waiver by either party of any default by the other
shall not waive subsequent defaults of the same or different kind.
14.2 NOTICES. All notices and demands hereunder will be in writing and
will be served by personal service, mail, overnight delivery or confirmed
facsimile transmission at the address of the receiving party set forth in this
Agreement (or at such different address as may be designated by such party by
written notice to the other party). All notices or demands by mail shall be by
certified or registered airmail, return receipt requested, and shall be deemed
complete and effective upon receipt.
14.3 ATTORNEYS' FEES. In the event any litigation is brought by either
party in connection with this Agreement, the prevailing party in such litigation
shall be entitled to recover from the other party all the costs, reasonable
attorneys' fees and other expenses incurred by such prevailing party in the
litigation.
14.4 CONTROLLING LAW, JURISDICTION AND SEVERABILITY. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Washington, excluding the Convention on Contracts for the International Sale of
Goods and that body of law known as conflicts of laws. The English-language
version of this Agreement controls when interpreting this Agreement.
14.5 SEVERABILITY. In the event that any of the provisions of this
Agreement shall be held by a court or other tribunal of competent jurisdiction
to be unenforceable, such provision will be enforced to the maximum extent
permissible and the remaining portions of this Agreement shall remain in full
force and effect.
14.6 ASSIGNMENT. This Agreement will not be assignable by either party,
and neither party may delegate its duties hereunder without the prior written
consent of the other, such consent not to be unreasonably withheld; provided,
however, that either party may assign this Agreement to a subsidiary or entity
controlling, controlled by or under common control with such party, or that
purchases or owns all or substantially all of such party's assets or outstanding
shares, or to an entity that purchases all or substantially all of the assets of
its business in the Field of Use. The provisions hereof shall be binding upon
and inure to the benefit of the parties, their successors and permitted assigns.
Any such permitted assignee must agree in writing to be bound by the terms and
conditions of this Agreement in order for such assignment to be of effect. Any
assignment or transfer not in accordance with this section shall be null and
void.
34
14.7 COMPLIANCE WITH LAW. Each party will comply with all applicable
international, national, state, regional and local laws and regulations in
performing its duties hereunder and in any of its dealings under this Agreement.
14.8 EQUITABLE RELIEF. Each party acknowledges that any breach of its
obligations under this Agreement with respect to the proprietary rights or
confidential information of other party will cause other party irreparable
injury for which there are inadequate remedies at law, and therefore either
party will be entitled to equitable relief in addition to all other remedies
provided by this Agreement or available at law.
14.9 NON-EXCLUSIVE REMEDY. The exercise by either party of any remedy
under this Agreement will be without prejudice to its other remedies under this
Agreement or otherwise.
14.10 INJUNCTIVE RELIEF. Restrac acknowledges that any breach of its
obligations under this Agreement with respect to the Intellectual Property
Rights or Confidential Information of Seller will cause Seller irreparable
injury for which there are inadequate remedies at law, and therefore, Seller
will be entitled to equitable relief in addition to all other remedies provided
by this Agreement or available at law.
14.11 ENTIRE AGREEMENT. This Agreement, including the exhibits attached
hereto, constitutes the complete and exclusive agreement between the parties
pertaining to the subject matter hereof, and supersedes in their entirety any
and all written or oral agreements previously existing between the parties with
respect to such subject matter. Restrac acknowledges that it is not entering
into this Agreement on the basis of any representations not expressly contained
herein. Any modifications of this Agreement must be in writing and signed by
both parties hereto. Any such modification shall be binding upon Seller only if
and when signed by one of its duly authorized officers.
35
14.12 DUE EXECUTION; COUNTERPARTS. The party executing this Agreement
represents and warrants that he or she has been duly authorized under its
charter documents and applicable law to execute this Agreement on behalf of such
party. This Agreement may be executed in counterparts, each of which will be
deemed an original, but both of which together will constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the Effective Date.
XXXXXX.XXX, INC.
SIGNATURE:
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PRINTED NAME:
------------------------------------------------
TITLE:
-------------------------------------------------------
DATE:
--------------------------------------------------------
JUNGLEE, CORP.
SIGNATURE:
---------------------------------------------------
PRINTED NAME:
------------------------------------------------
TITLE:
-------------------------------------------------------
DATE:
--------------------------------------------------------
RESTRAC, INC.
SIGNATURE:
---------------------------------------------------
PRINTED NAME:
------------------------------------------------
TITLE:
-------------------------------------------------------
DATE:
--------------------------------------------------------
36
EXHIBIT A
TO THE LICENSE AGREEMENT
SOFTWARE
The following Junglee Software, in source code and object code forms, for all
versions currently in production, in beta testing or under development (as
more fully described in the technical documentation attached hereto and
incorporated by reference):
1. Korak, including Virtual Database Management System (VDB), Site Definition
Language (SDL) and Mapping Definition Language (MDL)
2. Job Canopy (versions 1.0, 1.01, 1.03 and 1.1)
3. Scripts to generate Integrated Data Tables (IDT) and Configurable IDT(s)
4. Reports (versions 1.0, 1.01 and 1.1)
5. Junglee Extraction Language (JEL engine)
6. All Employment Extractors
7. All Employment Wrappers
8. Self Publishing (version 1.0)
9. ASP--PLS/Oracle
10. Junglee Super
11. Jute
12. Web Monitor
37
THIRD-PARTY SOFTWARE
Seller will purchase for Buyer any third-party software necessary to transfer
the servers identified in Schedule 2.5 to the Asset Purchase Agreement.
In addition, to the extent permitted by the Seller's respective license
agreements, Seller will assign its licenses to the following:
1. Sun Solaris 2.x
2. Oracle Server MLE; Oracle Server V8 (attached Oracle documentation is
hereby incorporated by reference)
3. PLS, including CPL Version 6.3, PL Version 4.15, PL Web Version 3.0,
PL Web-Co Version 1.x, PL Web Turbo Version 2.6
4. Netscape Enterprise Server for Solaris
38
EXHIBIT B
TO THE LICENSE AGREEMENT
JUNGLEE TRADEMARKS
JUNGLEE
JOBS BY JUNGLEE
JOBCANOPY
SPECIFICATIONS AS TO APPEARANCE, ETC., ARE ATTACHED.
39
EXHIBIT C
TO THE LICENSE AGREEMENT
FORM OF SOURCE CODE ESCROW AGREEMENT
Attached.
40
EXHIBIT C
FORM OF
SOURCE CODE ESCROW AGREEMENT
This Agreement (the "Agreement") is made as of ______________ among
RESTRAC, INC. ("Licensor"), DSI TECHNOLOGY ESCROW SERVICES ("Escrow Agent"),
and those entities that become parties to this Agreement pursuant to Section
16 below ("Licensee").
1. BACKGROUND. Licensor has licensed or will license the Licensed
Program (as defined below) to each Licensee pursuant to a written software
license agreement (a "License Agreement"). Licensor has agreed to place in
escrow the Source Code (as defined below) for the Licensed Program, to be
released to Licensees upon the occurrence of certain events as hereinafter
described.
2. CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the following respective meanings:
(a) LICENSED PROGRAM. The computer program(s), consisting of a
series of instructions or statements in machine readable, object code form
only, licensed to Licensees by Licensor pursuant to License Agreements.
(b) SOURCE CODE. The version of the source code used by Licensor
to generate the Licensed Program, contained on one or more magnetic tapes or
other media, together with a print-out of the source code listing.
(c) DOCUMENTATION. Explanatory information, whether in
machine-readable form or otherwise, which would assist a software engineer in
understanding the structure, purpose and operation of the Source Code.
(d) INFORMATION. The Source Code and the Documentation,
collectively.
(e) UPDATE EVENT. The delivery to Licensees of any new release
of the Licensed Program or the expiration of twelve months since the most
recent Update Event if the Source Code has been modified in the interim.
(f) UPDATE INFORMATION. All information, including without
limitation additional and/or replacement Source Code and Documentation,
necessary to bring the Information in escrow prior to an Update Event into
compliance with the definition of Information contained in Section 2(d) after
the occurrence of such Update Event. The term "Information" shall be deemed
to include any such Update Information for the purposes of this Agreement.
41
3. APPOINTMENT OF ESCROW AGENT. Escrow Agent is hereby appointed
and accepts appointment to act as escrow agent hereunder.
4. FEES OF ESCROW AGENT.
(a) All fees of Escrow Agent in connection with its duties
hereunder shall be paid by and shared equally by all parties who are
Licensees at the time such fees become due or, if there are no Licensees at
any such time, by Licensor.
(b) Escrow Agent's fees for the initial year of service are due
in full within sixty (60) days after the execution of this Agreement. Annual
renewal fees will be due in full upon the receipt of invoice unless otherwise
specified by the invoice. Late payments are subject to interest at the rate
of one and one-half percent per month (18% per annum) from the due date.
(c) Escrow Agent's fees will be as specified in its standard fee
schedule as modified from time to time. Escrow Agent shall notify Licensor
and each Licensee at least ninety (90) days prior to any increase in its
fees. For any service not listed on its standard fee schedule, Escrow Agent
shall provide a price quotation prior to rendering such service.
5. REPRESENTATIONS AND WARRANTIES. Licensor represents and warrants
to each Licensee as follows:
(a) Licensor has the right to enter into and perform this
Agreement, to grant each Licensee the license granted pursuant to Section
10(a) of this Agreement and to deposit the Information under the terms of
this Agreement.
(b) The Information initially deposited hereunder is reasonably
sufficient to enable a software engineer, skilled in the art of computer
programming and without recourse to collateral sources of assistance other
than commercially available computer programs, to independently compile the
Licensed Program and to modify the Licensed Program.
EXCEPT AS STATED ABOVE, LICENSOR DISCLAIMS ALL WARRANTIES, WHETHER
EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE INFORMATION,
INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. IN NO EVENT SHALL LICENSOR BE LIABLE FOR SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS
OF DATA OR LOSS OF USE DAMAGES, ARISING OUT OF OR WITH RESPECT TO THIS
AGREEMENT OR THE INFORMATION.
42
6. DEPOSIT OF INFORMATION INTO ESCROW. Within thirty (30) days after
the execution of this Agreement by Licensor and Escrow Agent, Licensor shall
deliver to Escrow Agent one copy of the Information in one or more sealed
packages (a "Deposit"), each of which shall be separately labeled and
accompanied by a separate written list of its contents in the form of EXHIBIT
B attached hereto (an "EXHIBIT B"). Thereafter, within thirty (30) days after
the occurrence of any Update Event, Licensor shall deliver one copy of the
Update Information in a sealed package to Escrow Agent accompanied by an
EXHIBIT B. Each EXHIBIT B shall be signed by Licensor prior to submission to
Escrow Agent. Upon the delivery of any Update Information to Escrow Agent,
Licensor may instruct Escrow Agent to return to it any previously delivered
Information (other than the most recent and one previous versions of the
Information) which is no longer necessary to satisfy Licensor's obligations
under this Agreement.
7. ACCEPTANCE AND STORAGE OF INFORMATION.
(a) Upon receipt of any Information hereunder, Escrow Agent shall
visually match the accompanying EXHIBIT B to the labels on the Deposit.
Escrow Agent shall not be responsible for verifying the contents of the
Deposit or validating the accuracy of Licensor's labeling of the Deposit. If
Escrow Agent determines that there is a discrepancy between the EXHIBIT B and
the labels on the Deposit, Escrow Agent shall notify Licensor within five (5)
days after receipt thereof, and Licensor shall promptly correct such
discrepancy. Acceptance of the Information shall occur when Escrow Agent
determines that the EXHIBIT B matches the labels on the Deposit. Upon
acceptance, Escrow Agent shall sign the EXHIBIT B and mail copies thereof to
Licensor and each Licensee.
(b) After acceptance, Escrow Agent shall store and maintain the
Information in such an environment or facility as Escrow Agent determines, in
its discretion, is suitable for the safekeeping of the Information. Escrow
Agent shall not permit any person to have access to the Information other
than in accordance with this Agreement, and shall maintain security measures,
in accordance with reasonable professional standards, to prevent unauthorized
access to the Information. Escrow Agent shall not release the Information
except in accordance with the provisions of this Agreement.
8. INSPECTION OF INFORMATION. Each Licensee shall have the right at
its sole expense from time to time during the term of this Agreement, upon
reasonable notice to Escrow Agent and Licensor, to designate a representative
to inspect, test and review the Information in the presence of a
representative of Escrow Agent and a representative of Licensor, if Licensor
so chooses, during normal business hours for the purpose of determining the
completeness and adequacy of the Information. Such representative shall be an
independent accounting or consulting firm, not employed or regularly retained
by or affiliated with such Licensee, as may be reasonably
43
acceptable to Licensor, As a condition to such inspection, such
representative shall execute a confidentiality agreement in form and
substance reasonably acceptable to Licensor.
9. RELEASE AND DELIVERY OF INFORMATION.
(a) A Licensee may request in writing that Escrow Agent deliver
the Information to such Licensee upon the occurrence of any of the following
events (a "Triggering Event"):
(i) Licensor materially breaches its support and maintenance
obligations for the Licensed Program under any written agreement between
Licensor and such Licensee and such breach remains uncured for sixty (60)
days after delivery of written notice thereof to Licensor;
(ii) Licensor ceases to offer support and maintenance services
for the Licensed Program and such cessation continues for sixty (60) days
after delivery of written notice thereof to Licensor; or
(iii) The institution by or against Licensor of any proceedings
under the United States Bankruptcy Code or any other federal or state
bankruptcy, reorganization, receivership, insolvency or other similar law
affecting the rights of creditors generally;
(b) Upon receipt by Escrow Agent of notice from a Licensee of a
Triggering Event, Escrow Agent shall promptly deliver a copy of such notice
to Licensor. Escrow Agent shall, twenty (20) days after delivery of such
notice to Licensor, deliver the Information to such Licensee, unless within
such twenty (20) day period Licensor shall have delivered to Escrow Agent and
such Licensee a written denial that such Triggering Event has occurred. If
Escrow Agent receives such denial within such twenty (20) day period, such
Licensee's entitlement to receive the Information under this Agreement shall
be resolved by arbitration pursuant to Section 15 of this Agreement, and
Escrow Agent shall retain possession of the Information pending the final
determination by the Arbitration Panel, which determination may be relied
upon by Escrow Agent without further inquiry.
10. POSSESSION, USE AND PROTECTION OF THE INFORMATION.
(a) If the Information is released to a Licensee pursuant to this
Agreement, Licensor hereby grants to such Licensee a non-exclusive,
royalty-free, non-assignable license to possess and use the Information
solely for the internal support and maintenance of the Licensed Program, and
solely in accordance with the terms of the License Agreement. Except as set
forth in Section 10(b), such Licensee shall not disclose, market, license,
sell, distribute, sublicense or in any other manner
44
make the Information available to third parties. Such Licensee shall not
under any circumstances copy, duplicate or otherwise reproduce any
Information except as required for the internal support and maintenance of
the Licensed Program.
(b) Each Licensee acknowledges and agrees that title to the
Information shall remain with Licensor (or its licensors, as the case may be)
at all times and that the Information shall remain confidential and
proprietary to Licensor (or its licensors, as the case may be). If the
Information is released to a Licensee pursuant to this Agreement, the
Information shall be received and held by such Licensee in confidence until
it falls into the public domain without breach of this Agreement by such
Licensee. Such Licensee shall limit use of and access to the Information to
such of its employees (or third parties reasonably acceptable to Licensor) as
are directly involved in the internal support and maintenance of the Licensed
Program and who are bound by written agreement to preserve the confidentiality
thereof. Such Licensee shall promptly report to Licensor any actual or
suspected violation of this Section 10 and shall take all reasonable further
steps requested by Licensor to prevent or remedy any such violation.
(c) If, following the release of the Information to a Licensee,
Licensor subsequently establishes pursuant to Section 15 that the conditions
which constituted a Triggering Event no longer exist, such Licensee shall
immediately cease use of such Information and return such Information (and
all copies thereof) to Escrow Agent together with an EXHIBIT B. Upon Escrow
Agent's acceptance of such Information in accordance with Section 7(a), such
Information shall be held in escrow in accordance with this Agreement until
another Triggering Event shall have occurred.
11. TERMINATION.
(a) This Agreement shall continue in effect with respect to a
Licensee until the termination or expiration of the License Agreement between
Licensor and such Licensee unless sooner terminated by the written agreement
of Licensor and such Licensee or for non-payment of Escrow Agent's fees
pursuant to Section 11(b) below, The termination of this Agreement with
respect to a Licensee shall not terminate this Agreement with respect to
other Licensees, except as provided in Section 11(b) below.
(b) This Agreement shall have an initial term of one year,
commencing on the date set forth above in the first sentence of this
Agreement (the "Effective Date"). This Agreement shall automatically be
renewed for additional one-year periods upon receipt by Escrow Agent of the
specified renewal fees. The initial "Renewal Date" of this Agreement is one
year from the Effective Date and in succeeding years is one year from the
most recent Renewal Date. In the event that the renewal fees are not received
within thirty (30) days prior to the Renewal Date, Escrow Agent shall notify
Licensor and each Licensee that this Agreement will expire
45
on the Renewal Date unless the renewal fees are paid. If Escrow Agent does
not receive the renewal fees by the Renewal Date, this Agreement shall expire
on the Renewal Date without further notice and without liability of Escrow
Agent to the parties to this Agreement.
(c) If this Agreement expires or is otherwise terminated with
respect to a Licensee, all duties and obligations of Escrow Agent to such
Licensee shall terminate, and if this Agreement expires or is otherwise
terminated with respect to all Licensees, all duties and obligations of
Escrow Agent to Licensor and all Licensees shall terminate. If Licensor
requests the return of the Information upon expiration or termination of this
Agreement with respect to all Licensees, Escrow Agent shall return the
Information to Licensor only after Escrow Agent's outstanding invoices and
deposit return fees have been paid. If such fee(s) are not received by Escrow
Agent within thirty (30) days after expiration or termination of this
Agreement with respect to all Licensees, Escrow Agent shall, at its option,
destroy or return the Information to Licensor.
12. RESPONSIBILITIES AND LIABILITIES OF ESCROW AGENT. Escrow Agent
shall not be liable under this Agreement with respect to the condition or
contents of the Information or for any action taken or omitted in compliance
with this Agreement in good faith and in the exercise of Escrow Agent's own
good judgment or in reliance on advice of Escrow Agent's counsel or for any
other cause unless a court of competent jurisdiction finds that Escrow
Agent's conduct was (i) willful misconduct, (ii) fraudulent, (iii) grossly
negligent, (iv) in bad faith or (v) in disregard of or contrary to the terms
of this Agreement. Escrow Agent shall be obligated only for the performance
of such duties as are specifically set forth in this Agreement and may rely
and shall be protected in relying on or refraining from acting on any order
or instrument reasonably and actually believed by it to be genuine and to
have been signed or presented by the proper party or parties. Escrow Agent
shall not be responsible for or be required to enforce any of the terms or
conditions of any agreement between Licensor and any Licensee. Escrow Agent
shall not be responsible or liable in any manner whatsoever for the
performance by Licensor or any Licensee of their respective obligations under
this Agreement.
13. RESIGNATION AND DISCHARGE; SUCCESSOR ESCROW AGENT.
(a) Escrow Agent may resign at any time, effective on such date
specified in a written notice of resignation delivered to Licensor and each
Licensee at least ninety (90) days prior to such effective date. Escrow Agent
may be discharged at any time, with or without cause, by written agreement of
Licensor and a majority in number of Licensees, effective upon receipt of
written notice of such discharge from Licensor. The resignation or discharge
of Escrow Agent shall not affect the right of Escrow Agent to be paid for its
services through the date of resignation or discharge.
46
(b) In the event of the resignation or discharge of Escrow Agent,
Licensor shall appoint a successor Escrow Agent (who shall be reasonably
acceptable to a majority in number of Licensees), and such successor Escrow
Agent shall assume the rights, powers and responsibilities of Escrow Agent
hereunder upon its written agreement to act as Escrow Agent hereunder and to
become a party hereto.
(c) Escrow Agent's obligations hereunder shall terminate upon the
effective date of its resignation or discharge, except that it shall continue
to hold the Information in accordance with this Agreement until a successor
Escrow Agent is appointed, at which time Escrow Agent shall deliver the
Information to such successor Escrow Agent. If no successor Escrow Agent is
appointed within thirty (30) days after the effective date of such
resignation or discharge, Escrow Agent shall deliver the Information to the
Arbitration Panel pursuant to Section 15, shall give written notice of the
same to Licensor and each Licensee and shall have no further responsibility
with respect thereto.
14. INDEMNIFICATION. Licensor and each Licensee, jointly and
severally, agree to indemnify, defend and hold Escrow Agent harmless against
any loss, liability or expense, including reasonable attorneys' fees,
incurred by Escrow Agent as a result of any action taken or omitted in
compliance with this Agreement in good faith and in the exercise of Escrow
Agent's own good judgment or in reliance on advice of Escrow Agent's counsel
or for any other cause unless a court of competent jurisdiction finds that
Escrow Agent's conduct was (i) willful misconduct, (ii) fraudulent, (iii)
grossly negligent, (iv) in bad faith or (v) in disregard of or contrary to
the terms of this Agreement.
15. ARBITRATION. Any dispute regarding the occurrence or
non-occurrence of a Triggering Event shall be submitted to arbitration before
a panel of arbitrators selected in accordance with the commercial rules of
the American Arbitration Association (the "Arbitration Panel"). If the
Arbitration Panel determines that a Triggering Event has occurred with
respect to a Licensee, Escrow Agent shall immediately release the Information
to such Licensee, provided that if it is subsequently determined pursuant to
a final adjudication of the dispute that a Triggering Event has not occurred,
Licensee shall immediately cease use of the Information, shall return the
Information to Escrow Agent, and shall destroy all other copies of the
Information, or any part thereof, in its possession. If the Arbitration Panel
determines that a Triggering Event has not occurred, Escrow Agent shall
continue to hold the Information in accordance with this Agreement. The
proceedings of the Arbitration Panel shall be held, and any determination of
the Arbitration Panel shall be deemed to have been made, in Boston,
Massachusetts. All questions of law shall be decided in accordance with the
laws of the Commonwealth of Massachusetts.
47
16. ADDITION OF LICENSEES. Licensor may, in its sole discretion and
without obtaining the consent of Escrow Agent or any Licensee, add its
customers as Licensees under this Agreement. Licensor and each such customer
so added shall execute a Counterpart Signature Page to this Agreement
substantially in the form of EXHIBIT C attached hereto, which shall be
promptly delivered to Escrow Agent. Escrow Agent shall acknowledge receipt of
such Counterpart Signature Page by signing it and returning copies to
Licensor and such Licensee, and such Licensee shall thereafter be deemed a
"Licensee" for all purposes of this Agreement.
17. THIRD-PARTY BENEFICIARY: Licensor and each Licensee hereby agree
that Xxxxxx.xxx, Inc. shall be a third-party beneficiary of the rights of
Licensor under this Agreement, with the power to enforce this Agreement in
accordance with its terms, to the extent that this Agreement governs the
disposition of any Source Code or Documentation that constitute or consist of
source code or documentation licensed by Xxxxxx.xxx, Inc. to Licensor under
the Software and Trademark License Agreement dated as of November __, 1998 by
and among Xxxxxx.xxx, Inc., Junglee Corp and Licensor. Xxxxxx.xxx, Inc. will
have no obligation or liability to Escrow Agent or any Licensee hereunder.
18. NOTICES. All notices required or permitted hereunder shall be
given in writing and shall be deemed delivered upon (i) delivery by messenger
or overnight courier service or (ii) three (3) days following the date of
mailing by registered or certified mail, postage prepaid, addressed to
Licensor or Escrow Agent at the applicable address set forth in EXHIBIT A
attached hereto and addressed to a Licensee at the address set forth on the
applicable Counterpart Signature page. Any party may change its address by
ten (10) days' written notice given to the other party in the manner set
forth in this Section 18.
19. GOVERNING LAW. This Agreement is made in and shall be construed
in accordance with the laws of the Commonwealth of Massachusetts.
20. NO WAIVER. No delay or omission by any party in exercising any
right under this Agreement shall operate as a waiver of that or any other
right. A waiver or consent given by a party on any one occasion shall be
effective only in that instance and shall not be construed as a bar or waiver
of any right on any other occasion.
21. SEVERABILITY. In the event that any provision of this Agreement
shall be invalid, illegal or otherwise unenforceable, the validity, legality
and enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
22. SUCCESSORS AND ASSIGNS. Neither Licensor nor any Licensee may
assign this Agreement without the written consent of the other, except that
no such consent shall be required for an assignment in connection with the
sale of all or substantially
48
all of a party's business by merger, sale of stock, sale of assets or otherwise.
Escrow Agent may not assign this Agreement without the written consent of
Licensor and a majority in number of Licensees. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the parties, their
respective executors, administrators, successors and assigns.
23. AMENDMENT. This Agreement may be amended or modified only by a
written instrument executed by Escrow Agent, Licensor and a majority in number
of Licensees.
24. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall
constitute but one Agreement binding on the parties.
25. CAPTIONS. The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope
or substance of any section of this Agreement.
SIGNATURES ON FOLLOWING PAGE.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as a sealed instrument as of the day and year set forth above.
RESTRAC, INC.
By:
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Name:
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Title:
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DSI TECHNOLOGY ESCROW SERVICES
By:
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Name:
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Title:
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