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Exhibit 10.21
CONFIDENTIAL TREATMENT REQUESTED
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SOURCE CODE LICENSE AND
AMENDMENT TO OEM AGREEMENT
BETWEEN
CDP COMMUNICATIONS INC.
AND
MOBIUS MANAGEMENT SYSTEMS
MADE AS OF
AUGUST 12, 1997
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SOURCE CODE LICENSE AND
AMEND MENT TO OEM AGREEMENT
THIS AGREEMENT made as of the 12th day of August, 1997.
AMONG:
CDP COMMUNICATIONS INC., a corporation incorporated under the laws
of the Province of Ontario (hereinafter referred to as the "CDP")
and
MOBIUS MANAGEMENT SYSTEMS, INC. a corporation incorporated under the
laws of the State of Delaware (hereinafter referred to as "Mobius")
WHEREAS CDP and Mobius entered into an OEM Agreement dated as of
October 15, 1993, as amended by the parties pursuant to amending agreement dated
July 18, 1995, (the "OEM Agreement") pursuant to which CDP granted certain
rights to Mobius to use, reproduce and sublicense the object code * version of
CDP's *;
AND WHEREAS CDP, Mobius and FileSafe, Inc. entered into a Source
Code Escrow Agreement dated April 21, 1994 (the "Escrow Agreement") pursuant to
which CDP placed the source code * version of the * in escrow to be released to
Mobius only under certain specific conditions referred to therein;
AND WHEREAS CDP subsequently developed a * version of the * ;
AND WHEREAS Mobius wishes to license the object code to the *
version of the * for sublicensing to its customers pursuant to the OEM Agreement
and license the source code of the * version and the * version of the * for the
purposes more fully set forth herein, including to make certain enhancements and
to maintain such software for its customers, and CDP is willing to grant such a
license under certain restrictions and conditions;
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein and the payment by each
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of the parties to the other of the sum of ten dollars ($10.00) and other good
and valuable consideration (the adequacy of which consideration as to each of
the parties hereto is hereby mutually acknowledged), the parties hereto covenant
and agree, and as appropriate, amend the OEM Agreement, as follows:
ARTICLE I - INTERPRETATION
1.1 Definitions
In this Agreement, the following terms shall have the meanings
ascribed to them as follows:
(a) "Acceptance Tests" has the meaning set forth in Section 2.5(b);
(b) "CDP Source Code" means the source code to the * and the * versions
of the * and technical documentation relating thereto as such source
code exists as at the date first written above and as described in
Schedule A to this Agreement;
(c) "CDP Software" means the object code to the * and the * versions of
the * as licensed to Customers under the OEM Agreement;
(d) "Confidential Information" means the confidential, secret or
proprietary information of CDP, including technical, financial and
business information and software of CDP which has been or may
hereafter be disclosed, directly or indirectly to Mobius, either
orally, in writing or in any other material form, or delivered to
Mobius;
(e) "Customers" means those persons or entities who are validly
sublicensed by Mobius, in compliance with the OEM Agreement, as
end-users of the Software and the Added Value (as such terms are
defined in the OEM Agreement);
(f) "Enhancements" includes changes, modifications, derivations,
improvements, and additions to the CDP Source Code;
(g) "Intellectual Property Rights" means all intellectual and industrial
property rights including all rights to
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copyrights, copyright applications. trademarks, patents, inventions,
discoveries, patent applications, industrial designs, design rights,
trade secrets and information of a confidential nature; and
(h) "License Fee Period" means the * period during which License Fees
are payable as set forth in Schedule B to this Agreement.
ARTICLE 2 - LICENSE
2.1 Delivery of CDP Source Code
(a) CDP shall deliver to Mobius, at its offices at One Ramada Plaza, New
Rochelle, New York, one copy of the CDP Source Code and Mobius shall conduct
Acceptance Tests on the CDP Source Code in accordance with Section 2.5.
(b) In addition, the CDP Source Code shall include (i) the * ; and (ii)
the * .
(c) CDP shall have no obligation to deliver any source code for any
products which CDP licenses separately from the CDP Software (to the extent that
such source code is not incorporated in, or otherwise forms a part of, the CDP
Software). Notwithstanding the foregoing Mobius agrees that it shall separately
purchase or otherwise acquire a license * or its functional equivalent to be
used together with the CDP Source Code and CDP shall have no obligation to
provide or cover the cost of licensing such additional software.
2.2 Use of CDP Source Code by Mobius
(a) Mobius shall have and CDP hereby grants to Mobius, a perpetual,
non-transferrable, non-exclusive license, to be exercised by its employees,
officers, directors and duly authorized agents, to (i) maintain, modify and
update the CDP Source Code, and (ii) develop Enhancements to the CDP Source
Code.
(b) Mobius acknowledges and agrees that prior to the end of the License
Fee Period, the rights granted under Subsection 2.1(a) are granted solely to
enable Mobius to provide maintenance and support services to Customers and to
develop Enhancements to the CDP Software. Mobius agrees to only market,
distribute or license the Enhancements developed by or for Mobius to Customers
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in accordance with the terms of the OEM Agreement as amended by
the terms hereof.
2.3 Obligations of Mobius
(a) Mobius shall establish a secure location to maintain the CDP Source
Code and shall maintain the CDP Source Code in the same manner, and under the
same controls and conditions as it maintains its own proprietary and
confidential source code.
(b) Except as provided in this Agreement, Mobius agrees that it shall not
divulge, disclose or otherwise make available to third parties the CDP Source
Code, without the express prior written consent of CDP, which consent shall not
be unreasonably withheld.
(c) Mobius agrees not to use the CDP Source Code or any part thereof
during the License Fee Period to develop any software, or source material for
creating software, which may compete with the CDP Software.
(d) During the License Fee Period and for one year thereafter, Mobius
agrees not to solicit, directly or indirectly, any of CDP's * OEMs or strategic
partners for the purpose of developing, licensing to or otherwise promoting an
object designed solely to * .
2.4 Turnover and Training
CDP shall provide Mobius with up to 10 days (in two or three sessions, at
times mutually agreeable to the parties) of turnover and training on-site at
Mobius' offices in New Rochelle, New York. A senior CDP representative,
knowledgeable in both versions of the CDP Source Code, shall be made available
for such purposes. Mobius shall reimburse CDP for all reasonable travel and
living expenses incurred pursuant to this Section 2.4. Unless otherwise agreed
to in writing by the parties, six months from the date of delivery as set forth
in Section 2.1(a) hereof all remaining rights to turnover and training services
as set forth herein shall terminate regardless of whether any turnover and
training days have accrued to such date, provided that CDP has not unduly
delayed the delivery of such services.
2.5 Acceptance
(a) Upon delivery of the CDP Source Code, Mobius shall have two business
days (the "Approval Period") after delivery thereof within which to approve or
reject the CDP Source Code. If Mobius does not reject or approve the CDP Source
Code within the Approval Period, the CDP Source Code shall be deemed to be
accepted by Mobius.
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(b) All to be conducted by Mobius during the Approval Period (the
"Acceptance Tests") shall be conducted on a single computer disconnected from
any network and all such testing shall be conducted in the presence of a senior
CDP developer. The Acceptance Tests shall consist solely of (i) establishing
that the CDP Source Code compiles and link edits, and (ii) confirming that the
compiled files of the CDP Source Code accurately compared to the CDP Software.
(c) If, upon conducting the Acceptance Tests Mobius has a reasonable
objection to the CDP Source Code, Mobius may reject the CDP Source Code. In such
event, Mobius will deliver to CDP within the Approval Period a notice setting
forth the specific reasons for rejection and CDP shall make commercial and
reasonable efforts to make the appropriate changes and redeliver the revised CDP
Source Code. Mobius shall again be entitled to an Approval Period to accept or
reject the revised CDP Source Code.
2.6 Modifications to the * Version of the CDP Source Code
Prior to September 30, 1997, CDP shall deliver to Mobius a modified
copy of the * version of the CDP Source Code with * as set forth in the
memorandum of Mobius to CDP dated August 8, 1997, a copy of which is attached
hereto as Schedule D.
2.7 Update of the * Version of the CDP Source Code
Once available, CDP shall deliver to Mobius an update of the *
version of the CDP Source Code and such update shall include (i) the
modifications to such source code as are set forth in the memorandum of Mobius
to CDP dated August 11, 1997, a copy of which is attached hereto as Schedule E,
and (ii) the * set forth in Schedule D.
ARTICLE 3 - TITLE AND OWNERSHIP
3.1 Property of CDP
The entire Intellectual Property Right, title and interest in the
CDP Source Code shall be retained as the sole property of CDP. Mobius
acknowledges and agrees that this Agreement does not transfer to Mobius any
Intellectual Property Right, title or interest with respect to the CDP Source
Code and that all such Intellectual Property Rights, title and interest belong
exclusively to CDP.
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3.2 Enhancements
Mobius shall own the entire Intellectual Property Right, title and
interest in any Enhancements to the CDP Source Code developed by or on behalf of
Mobius. Unless otherwise provided in writing, CDP shall own the entire
Intellectual Property Right, title and interest in all Enhancements to the CDP
Source Code not developed by or on behalf of Mobius. Any Enhancements made by or
on behalf of Mobius shall not in any way prohibit or affect CDP's right to
develop any Enhancements to the CDP Source Code for its own purposes or for
other licensees.
ARTICLE 4 - CONFIDENTIAL INFORMATION
4.1 Confidentiality Obligation
(a) Mobius shall use no less than the same means it uses to protect its
similar confidential and proprietary information, but in any event not less than
reasonable means, to prevent the disclosure and to protect the confidentiality
of the Confidential Information. Mobius agrees that it will not use the
Confidential Information except for the purposes of this Agreement and as
authorized herein.
(b) Mobius acknowledges that the CDP Source Code constitutes Confidential
Information which information shall not be accessed other than by Mobius and its
employees, officers, directors and duly authorized agents who reasonably require
such access for the purposes of this Agreement and who are required to protect
the confidentiality of the Confidential Information. Mobius agrees to strictly
enforce such requirements with regards to the Confidential Information.
(c) Notwithstanding subsections 4.1(a) and 4.1(b), Mobius may use or
disclose the Confidential Information to the extent that such Confidential
Information is (i) already known by Mobius without an obligation of
confidentiality, (ii) publicly known or becomes publicly known through no
unauthorized act of Mobius, (iii) rightfully received from a third party, (iv)
independently developed by Mobius without use of the Confidential Information,
(v) approved by CDP for disclosure, or (vi) required to be disclosed pursuant to
a requirement of a governmental agency or law so long as Mobius provides CDP
with notice of such requirement prior to any such disclosure and takes all
reasonable steps available to maintain the information in confidence.
4.2 Return of Confidentiality Information
Upon the termination of this Agreement and upon the request of CDP,
Mobius will return to CDP all documents and
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information, however recorded, including but not limited to drawings,
specifications, descriptions, or other papers, tapes, or any other media which
contain any of the Confidential Information.
4.3 Loss of Confidential Information
In the event of any unauthorized disclosure or loss of, or inability
to account for Confidential Information, Mobius will notify CDP immediately.
4.4 Equitable Relief
Mobius acknowledges and agrees that the Confidential Information
constitutes valuable trade secrets of CDP, and that any unauthorized
reproduction and/or disclosure of such information by Mobius may cause
irreparable harm for which CDP's remedies at law may be inadequate. Mobius
hereby agrees that CDP may be entitled, in addition to any other remedies
available to it at law or in equity, to seek injunctive relief to prevent the
breach or threatened breach of Mobius' obligations hereunder.
ARTICLE 5 - PRICE AND PAYMENT
5.1 License Fees
As compensation for the rights granted herein and in satisfaction of
Mobius' OEM Royalty obligations pursuant to the OEM Agreement, Mobius shall be
charged and agrees to pay the license fees (the "License Fees") at the times and
in the amounts as set out in Schedule B. All License Fees are in United States
dollars.
5.2 Taxes and Import Duties
Except as stated above, License Fees are exclusive of all local
jurisdiction, sales, use, occupational or similar taxes now in force or enacted
in future, all of which shall be paid by Mobius, except for such taxes as are
imposed on CDP's income, which shall be paid by CDP. Mobius is responsible for
obtaining and providing to CDP any certificate of exemption or similar document
required to exempt any sale or license from sales, use or similar tax liability.
5.3 Late Payment Charges
Notwithstanding any other rights or remedies CDP may have under this
Agreement or at law, if Mobius falls to pay any amounts within 30 days after
payment is due, interest on overdue
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amounts shall accrue at the rate of 18% per annum (1.5% per month) on such
unpaid amounts.
ARTICLE 6 - WARRANTIES, INDEMNITIES, LIMIT OF LIABILITY
6.1 Warranty
The CDP Source Code is provide "AS-IS" without any warranty
whatsoever except that CDP warrants and represents to Mobius that it is the
owner of the CDP Source Code and that it has full right and authority to enter
into this Agreement.
6.2 Disclaimer
(a) EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, CDP MAKES NO
CONDITIONS OR WARRANTIES, EITHER EXPRESSED OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY CONDITION OR WARRANTY OF
MERCHANTABILITY OR MERCHANTABLE QUALITY OF THE SOFTWARE OR ITS FITNESS FOR ANY
PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A
COURSE OF DEALING OR USAGE OF TRADE. IN NO EVENT WILL CDP BE LIABLE FOR ANY
DAMAGES, INCLUDING BUT NOT LIMITED TO (i) DAMAGES CAUSED BY THE MOBIUS' FAILURE
TO PERFORM ITS COVENANTS AND RESPONSIBILITIES, FOR ANY REASON, INCLUDING,
WITHOUT LIMITATION, CDP'S NEGLIGENCE; (ii) DAMAGES CAUSED BY REPAIRS OR
ALTERATIONS DONE WITHOUT CDP'S WRITTEN APPROVAL; (iii) DAMAGES DUE TO
DETERIORATION DURING PERIODS OF STORAGE BY THE MOBIUS, (iv) LOST DATA; OR (v)
ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES.
6.3 Limit of Liability
CDP'S LIABILITY FOR DAMAGES TO MOBIUS FOR ANY CAUSE (OTHER THAN AS
CONTEMPLATED BY SECTION 6.4 BELOW), REGARDLESS OF THE FORM OF ACTION INCLUDING
NEGLIGENCE, SHALL NOT EXCEED THE LICENSE FEES PAID BY MOBIUS PURSUANT TO THIS
AGREEMENT DURING THE TWENTY-FOUR MONTHS PRIOR TO THE MONTH IN WHICH MOBIUS
NOTIFIES CDP OF SUCH CLAIM OR POTENTIAL CLAIM.
6.4 Patent Copyright and Trade Secret Indemnification
(a) At its expense, CDP will defend any action brought against
Mobius, and pay all reasonable expenses and damages of Mobius, for any claims
that the CDP Source Code infringes a patent, copyright or trade secret of a
third party (a "Source Code Infringement") effective in Canada or the United
States provided Mobius notifies CDP promptly in writing of the action (and all
prior claims relating to such action) and gives CDP sole control of the defence
and negotiations for its settlement or compromise. CDP shall pay all damages and
costs awarded therein
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against Mobius but shall not be responsible for any compromise made without its
consent. In the event of a final judgment which prohibits Mobius' continued use
of the CDP Source Code by reason of a Source Code Infringement, or if at any
time CDP is of the opinion that the CDP Source Code is likely to become the
cause of an action for infringement, CDP's sole obligation will be to use its
best efforts to (i) obtain, at no additional cost to Mobius, the rights to
continued use of the CDP Source Code; (ii) replace or modify the CDP Source Code
so that it is no longer infringing, but maintaining equivalent functionality to
the infringing part; or (iii) remove and refund the amount paid to CDP in
License Fees by Mobius, less two percent per month of use as depreciation.
(b) Notwithstanding Subsection 6.4(a), CDP shall have no liability for any
Source Code Infringement or claim thereof based on (i) use of other than the
unaltered CDP Source Code not approved in writing by CDP, (ii) use of a
combination of the CDP Source Code with software, data or equipment not approved
in writing or supplied by CDP, (iii) use of CDP Source Code with Enhancements
developed by or for Mobius, or (iv) use of the CDP Source Code in a manner for
which the CDP Source Code was not designed.
(c) At its expense, Mobius will defend any action brought against CDP and
pay all reasonable expenses and damages of CDP for any claims, suit or
proceeding that (i) an Enhancement or Enhancements developed by or for Mobius,
(ii) use of the CDP Source Code other than as contemplated by this Agreement, or
(iii) use of the CDP Source Code as modified, altered or combined with any
equipment, device or software not supplied or approved by CDP, infringes a
patent, copyright or trade secret of a third party effective in Canada or the
United States provided CDP notifies Mobius promptly in writing of the action
(and all prior claims relating to such action) and gives Mobius sole control of
the defence and negotiations for its settlement or compromise. Mobius shall pay
all damages and costs awarded therein against CDP but shall not be responsible
for any compromise made without its consent.
ARTICLE 7 - TERM AND TERMINATION
7.1 Term and Termination
This Agreement will commence on the date first written above and
will remain in force unless terminated hereunder.
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7.2 Termination for Default
In the event Mobius fails to cure any material breach of this
Agreement which is capable of cure within ten business days of receipt of
written notice thereof from CDP, then CDP, in its sole discretion, shall, in
addition to any other remedy which it may be entitled to at law, have the right
to terminate this Agreement by written notice to Mobius on a date specified
therein. CDP shall have the right to terminate this Agreement by notice in
writing to Mobius in the event Mobius fails to cure any breach of this Agreement
which is not capable of cure including a breach of Article 4 (which shall be
deemed not to be curable).
7.3 Termination upon Insolvency
Either party may terminate this Agreement if the other party is
dissolved, becomes insolvent, passes a resolution for its winding up (or an
order is made by a court of competent jurisdiction for the winding up of the
other party), an administration order is made in relation to the other party or
a receiver, trustee, or liquidator is appointed over, or takes possession of,
any of the other party's assets, the other party makes an arrangement or
composition with its creditors generally, the other party makes an assignment
for the benefit of its creditors or an application to a court of competent
jurisdiction for protection from its creditors generally, or the other party
ceases operations.
7.4 Termination of OEM Agreement
This Agreement shall automatically terminate upon CDP's termination
of the OEM Agreement for material breach by Mobius during the License Fee
Period.
7.5 Survival
The parties hereto agree that the provisions hereof requiring
performance or fulfillment after the expiry or earlier termination of this
Agreement shall survive such expiry or earlier termination. Articles 3, 4 and 5
and Sections 2.2, 2.3, 6.3, 6.4, 7.5 and 7.6 shall survive the termination of
this Agreement.
7.6 Effect of Termination
Within five business days of the effective date of the termination
of this Agreement, Mobius shall return to CDP all copies of the CDP Source Code
in its possession or under its control.
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ARTICLE 8 - AMENDMENTS TO THE OEM AGREEMENT
AND TERMINATION OF THE ESCROW AGREEMENT
8.1 Amendments to the OEM Agreement
The OEM Agreement is hereby amended by:
(i) deleting Section 1.1 in its entirety and replacing it with the
following new Section 1.1:
1.1 "Added Value" means the value to be added by the OEM to
the CDP Products by embedding the CDP Products in any
Mobius product.
(ii) insert a new Section 1.6.1.1 as follows:
"License Fee Period" shall have the meaning set forth in the
Source Code License Agreement between Mobius and CDP dated
August 12, 1997.
(iii) amend Section 1.9 by (i) adding the words "or any portion or
element thereof" following the words "software programs" and
prior to the words "listed on", and (ii) deleting the words
"and all future modifications and enhancements thereto" at the
end of Section 1.9.
(iv) inserting in the first sentence of the first paragraph of
Section 2.1(i) the word "perpetual," following the words
"grants OEM the" and before the word "non-exclusive" and (ii)
the words ", during the License Fee Period," following the
words "condition that" and before the words "the OEM only".
(v) deleting Section 3 in its entirety.
(vi) amend Section 6.1 by (a) inserting the word "perpetual,"
following the word "a" and before the word "non-exclusive",
(b) deleting the word "and" following the words "this
Agreement" and replacing it with the words "(i) during the
License Fee Period and subject," and (c) inserting at the end
of the first sentence of Section 6.1 the words ", and (ii)
upon the conclusion of the License Fee Period, for any use
whatsoever, provided
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such use is not otherwise restricted by this Agreement."
(vii) amending Section 6.4 by inserting at the beginning of the
fourth sentence of the first paragraph of Section 6.4 the
words "During the License Fee Period."
(viii) deleting Articles 12 and 13 in their entirety;
(ix) amending Section 16.1 by inserting at the beginning of the
second sentence the words, "During the License Fee Period";
(x) deleting Section 19.1.3 and the first paragraph of Section
19.2 each in their entirety;
(xi) deleting Schedule A in its entirety;
(xii) deleting the sentence under the heading "Software" in Schedule
B, in its entirety and replacing it with "The object code to
the * version of CDP's * and the object code to the * version
of CDP's * , as described in Schedule A to the Source Code
License Agreement between CDP and Mobius dated August 12,
1997."; and
(xiii) deleting the table and sentence preceding the table in
Schedule B in its entirety and replacing it with the following
"The payment of OEM of the License Fees (as such term is
defined in the Source Code License Agreement between CDP and
Mobius dated August 12, 1997) payable under such Source Code
License Agreement shall fully satisfy any and all OEM Royalty
obligations of OEM hereunder. Following the end of the License
Fee Period, no further OEM Royalties shall be payable."
8.2 Confirmation of OEM Agreement
The OEM Agreement as amended hereby, is hereby ratified and
confirmed in all respects, and is binding upon the parties thereto and their
successors.
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8.3 Termination of the Escrow Agreement
Effective upon acceptance of the CDP Source Code, the Escrow
Agreement shall be terminated and Mobius acknowledges that as of such date it
shall have no further rights thereunder. Mobius hereby consents to the delivery
of the Source Materials (as such term is defined in the Escrow Agreement) to CDP
and agrees to deliver to CDP the form of notice set forth in Schedule C hereto
upon receipt of the CDP Source Code.
8.4 Conflicts with OEM Agreement
In the event there is any conflict or inconsistency between the
terms of OEM Agreement and the terms of this Agreement, the terms of this
Agreement shall govern.
ARTICLE 9 - GENERAL
9.1 Headings
The division of this Agreement into Articles and Sections and the
insertion of headings are for convenience of reference only and shall not affect
the construction or interpretation of this Agreement. The terms "this
Agreement", "hereof', "hereunder" and similar expressions refer to this
Agreement and not to any particular Article or Section or other portion hereof
and include any agreement supplemental hereto. Unless something in the subject
matter or context is inconsistent therewith, references herein to Articles or
Sections are to Articles or Sections of this Agreement.
9.2 Extended Meanings
In this Agreement words importing the singular number only shall
include the plural and vice versa, and words importing persons shall include
individuals, partnerships, associations, unincorporated organizations and
corporations. The terms "provision" and "provisions" refer to terms, conditions,
provisions, covenants, obligations, undertakings, warranties and representations
in this Agreement.
9.3 Ambiguities
The parties hereto agree that each of them has participated in the
drafting of this Agreement and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not apply to the
interpretation of this Agreement.
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9.4 Assignment
This Agreement shall be binding on the parties hereto and their
respective successors and assigns. Neither party may, or shall have the power
to, assign this Agreement or the benefit thereof, in whole or in part, except
(i) with the prior written consent of the other party, which consent shall not
be unreasonably withheld, and (ii) by either party in connection with the sale
of all or substantially all of its property and assets or in connection with a
merger, amalgamation, or other reorganization of the party, provided that the
successor or assignee, as the case may be, undertakes in writing to the other
party to be bound by the provisions of this Agreement.
9.5 Amendments and Waiver
No modification of or amendment to this Agreement shall be valid or
binding unless set forth in writing and duly executed by the parties hereto and
no waiver of any breach of any term or provision of this Agreement shall be
effective or binding unless made in writing and signed by the party purporting
to give the same and, unless otherwise provided, shall be limited to the
specific breach waived.
9.6 Further Assurances
Each of the parties hereto shall from time to time execute and
deliver all such further documents and instruments and do all acts and things as
the other party may reasonably require to effectively carry out this Agreement.
9.7 Consents and Approvals
Where a party is required hereunder to grant a consent or an
approval, unless something in the subject matter or context is inconsistent
therewith, the granting of the consent or the approval shall not be unreasonably
withheld or delayed.
9.8 Notices
All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given on the
first business day after personal delivery, delivery by overnight courier
service or transmittal by facsimile, on the fifth business day after being sent
by First Class Mail, postage prepaid, as follows:
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(a) If to CDP, to:
CDP Communications Inc.
00 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0Xx
Attention: President
Facsimile No.: (000) 000-0000
(b) If to Mobius, to:
Mobius Management Systems, Inc.
Xxx Xxxxxx Xxxxx
Xxx Xxxxxxxx, Xxx Xxxx 00000
Attention: President
Facsimile No.: (000) 000-0000
If a party changes its address for notification purposes, then it shall give the
other party written notice of the new address and the date on which it shall
become effective.
9.9 Severability
If a court or other lawful authority of competent jurisdiction
declares any provision, Article or Section of this Agreement invalid, illegal or
unenforceable, this Agreement will continue in full force and effect with
respect to all other provisions, Articles and Sections and all rights and
remedies accrued under such other provisions, Articles and Sections will survive
any such declaration.
9.10 Governing Law
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
9.11 Entire Agreement
This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and cancels and supersedes any
prior understandings and agreements between the parties hereto with respect
thereto.
9.12 Counterparts
This Agreement may be executed in any number of counterparts which
may be delivered by facsimile transmission, each of which shall be deemed to be
an original and all of which taken together shall be deemed to constitute one
and the same
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instrument, and it shall not be necessary in establishing proof of this
Agreement to produce or account for more than one such counterpart.
IN WITNESS WHEREOF the parties have executed this Agreement.
CDP COMMUNICATIONS INC.
BY: /s/ X.Xxxxxxxxx
----------------------------------
Name: X.Xxxxxxxxx
Title: President
MOBIUS MANAGEMENT SYSTEMS, INC.
BY: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
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SCHEDULE A
DESCRIPTION OF CDP SOURCE CODE
The CDP * consists of two major components:
o *
o *
*
The transform component consists of the following sub components:
o *
o *
o *
o *
The conversion component is * . * . This lets the applications program
control the persistence * . * .
This same conversion logic applies to all * . The conversion * and the *
communicates through * .
The viewing and printing component renders * pages and objects * .
*
*
*
*
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SCHEDULE B
LICENSE FEES
(1) Mobius acknowledges that all sums previously paid by Mobius to CDP pursuant
to the OEM Agreement have been fully earned by CDP for services rendered prior
to the date of this Agreement.
(2) Upon execution of this Agreement and prior to delivery of the CDP Source
Code, Mobius shall pay the amount set forth on the invoice enclosed as Appendix
B1 to this Schedule and Mobius acknowledges that such amount constitutes the OEM
Royalties outstanding under the OEM Agreement as at the date immediately prior
to the date of this Agreement and that such amount is due and payable to CDP in
addition to any amount earned by CDP as referred to in (1) to this Schedule B.
(3) Upon acceptance of the CDP Source Code in accordance with Section 2.5 of
this Agreement and for the initial * of the Agreement, a License Fee shall be
payable on the last day of each calendar month in the amounts set forth below:
Year Monthly Fee
---- -----------
* *
* *
* *
* *
* *
* *
Following the end of the * , no further License Fees shall be payable.
----------
* The Redacted Material Has Been Separately Filed With The Commission.
20
APPENDIX B1
CDP Communications Inc. INVOICE
& Electronic File Imaging Systems, Inc.
00 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000 INVOICE No: XXX000
Xxxxxxx, Xxxxxxx X0X 0X0 DATE: 1 August, 1997
000.000.0000 Fax 000.000.0000
To: Mobius Managements, Inc. Ship To:
Xxx Xxxxxx Xxxxx Xxxx
Xxx Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
----------------------------------------------------------------------------------------
SALESPERSON PO NUMBER DATE SHIPPED SHIPPED VIA F.O.B. POINT TERMS
----------------------------------------------------------------------------------------
COD
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
QUANTITY DESCRIPTION UNIT PRICE AMOUNT
----------------------------------------------------------------------------------------
o * *
o * *
o * *
o All sales reported in 7/11/97 account schedule
o US Funds
-----------------------------------------------------------------------------------------
SUBTOTAL *
GST 7% TAX
PST 8% TAX
----------
TOTAL DUE *
----------
Make all checks payable to: CDP Communications Inc.
If you have any questions concerning this invoice, call: Xxxxxxx Xxxx,
000-000-0000
THANK YOU FOR YOUR BUSINESS!
----------
* The Redacted Material Has Been Separately Filed With The Commission.
21
SCHEDULE C
NOTICE
To: FileSafe, Inc.
Re: Escrow Agreement dated April 21, 1994 between CDP Communications Inc.,
Mobius Management Systems, Inc. and FileSafe, Inc. (the "Escrow
Agreement")
The undersigned each hereby agree to the termination of the Escrow
Agreement as of the date hereof and direct FileSafe Inc. to release all escrowed
materials to CDP Communications Inc.
DATED August 12, 1997
CDP COMMUNICATIONS INC.
By:
--------------------------------
MOBIUS MANAGEMENT SYSTEMS, INC.
By:
--------------------------------
22
SCHEDULE D
MOBIUS Memorandum
To: Xxx Xxxxxx
Xxxx Xxxxxxxxx
From: Xxx Xxxxxxxx
Date: August 11, 1997
Subject: *
================================================================================
Date
Incident Reported Symptom Status
--------------------------------------------------------------------------------
710144 1/30/97 * 8/6-- *
--------------------------------------------------------------------------------
720601 4/4/97 * 8/11 *
--------------------------------------------------------------------------------
750549 6/6/97 *. 8/11--*
--------------------------------------------------------------------------------
720715 4/7/97 * 8/6-- *
750961
--------------------------------------------------------------------------------
740176 6/27/97 * 8/11-- *.
--------------------------------------------------------------------------------
760935 8/4/97 *. 8/11-- *
================================================================================
* The Redacted Material Has Been Separately Filed With The Commission.
23
SCHEDULE E
MOBIUS Memorandum
To: Xxx Xxxxxx
Xxxx Xxxxxxxxx
From: Xxx Xxxxxxxx
Date: August 11, 1997
Subject: *
================================================================================
Date
Issue Reported Description Status
--------------------------------------------------------------------------------
1 8/6/97 * 8/6 *
--------------------------------------------------------------------------------
2 8/6/97 * 8/6 *
--------------------------------------------------------------------------------
3 8/6/97 * 8/6 *.
--------------------------------------------------------------------------------
4 8/6/97 *. 8/6 *
--------------------------------------------------------------------------------
5 *.
--------------------------------------------------------------------------------
6 *
--------------------------------------------------------------------------------
7 * *
================================================================================
----------
* The Redacted Material Has Been Separately Filed With The Commission.
