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EXHIBIT 10.27
SOFTWARE LICENSE AGREEMENT
INTELIC SOFTWARE SOLUTIONS INC. ("INTELIC")
This Agreement sets forth the terms and conditions under which Intelic will
license to you (RECIPIENT) the use of the object code to the Intelic ProChannel
Enterprise Software programs and any subsequent modules which Intelic supplies
to the RECIPIENT hereunder together with the related documentation (the
"SOFTWARE").
The use of the SOFTWARE in any manner means you accept the terms of this license
agreement.
1. OWNERSHIP. RECIPIENT acknowledges that the SOFTWARE and all copyrights
and other right, title and interest therein, are the sole property of Intelic
and its licensors, and that RECIPIENT shall gain no right, title or interest in
the SOFTWARE by virtue of this Agreement other than the non-exclusive right to
use the SOFTWARE expressly granted herein. Without limiting the foregoing,
RECIPIENT specifically acknowledges Intelic's exclusive ownership of any
modification, translation or adaptation of the SOFTWARE, and any other
improvement or development based thereon, which is developed, supplied,
installed or paid for by or on behalf of RECIPIENT. The SOFTWARE includes
certain components which are owned and copyrighted by Intelic's licensors,
Oracle, and Netscape. Nothing in this License Agreement constitutes a waiver of
Intelic's or its licensors' rights under the U. S. and International copyright
laws. Intelic acknowledges that it has not knowingly incorporated any mechanisms
into the Software that would render it useless.
2. LICENSE OF SOFTWARE. In consideration of RECIPIENT's payment of the
license fee payable hereunder, Intelic grants to RECIPIENT a personal,
nontransferable and nonexclusive license to use the SOFTWARE only on the server
for which it was licensed ("Licensed Server"), with a single production database
only. RECIPIENT represents, warrants and agrees that the SOFTWARE will be used
only for the benefit of RECIPIENT and its subsidiaries.
2.1 LICENSED SERVER. If the SOFTWARE is to be used by two or more
CPUs simultaneously, then RECIPIENT must license additional copies of
the SOFTWARE for each CPU. If the Licensed Server is a computer network,
the license granted hereunder permits RECIPIENT to use the SOFTWARE only
on a single database server or multi-terminal CPU at a time. If the
Intelic multi-user system is to be used on two or more database servers
or multi-terminal CPUs at a time, then RECIPIENT must license additional
copies of the SOFTWARE for each database server or multi-terminal CPU
computer system.
3. ANNUAL MAINTENANCE / SOFTWARE SUPPORT PROGRAM (SSP).
3.1 RECIPIENT shall be entitled to receive telephone support,
revised and corrected versions of the SOFTWARE ("Updates") and enhanced
and improved versions of the SOFTWARE ("Upgrades") as and when generally
released to Intelic's customers, upon payment to Intelic of an annual
SSP subscription fee.
3.2 This Agreement covers only the right to use the SOFTWARE. To the
extent RECIPIENT requires any related service (including installation,
training, and integration of Updates and Upgrades), RECIPIENT may
procure such services by a separate Professional Services Agreement with
Intelic.
4. RESTRICTIONS ON USE. RECIPIENT may not use this SOFTWARE in a service
bureau or interactive cable television business; RECIPIENT may not rent, lease
or grant sublicenses, leases or other rights in the SOFTWARE to others.
RECIPIENT shall implement all reasonable measures necessary to safeguard
Intelic's and its licensors' ownership of the SOFTWARE, including without
limitation: (i) to allow its employees, agents and third parties access to the
SOFTWARE only to the extent necessary to permit the performance of their
ordinary services to RECIPIENT and to require, as a condition to such access,
that they agree to comply with the provisions of this
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Agreement (ii) to cooperate with Intelic in the enforcement of such compliance
by RECIPIENT's employees, agents and third parties; (iii) not to permit the
removal or alteration of any copyright or confidentiality labels or notices
contained in or on the SOFTWARE; (iv) not to dissemble, decompile or reverse
engineer the SOFTWARE; and (v) not to duplicate or reproduce the SOFTWARE,
except that RECIPIENT may make one archival copy and, if necessary, one copy to
run temporarily on a replacement computer in an emergency, and then in either
case only if all copyright and confidentiality notices are included in or on
such copy. RECIPIENT may make a reasonable number of working copies of the
training data bases. RECIPIENT acknowledges that use or disclosure of the
SOFTWARE in violation of this AGREEMENT may cause irreparable harm to Intelic
and its licensors.
5. LIMITED PERFORMANCE WARRANTY. As long as RECIPIENT's SSP subscription
has not lapsed Intelic warrants that:
5.1 The SOFTWARE shall function substantially in accordance with the
related user documentation provided by Intelic. In the event that the
SOFTWARE fails to perform as warranted above then Intelic's sole
obligation shall be, at its option, to:
(i) modify the SOFTWARE to conform to the documentation,
unless the documentation is in error;
(ii) modify the documentation to accurately reflect the
actual operation of the SOFTWARE if the documentation is
in error; or
(iii) provide a workaround which will satisfactorily meet
RECIPIENT's requirements.
5.2 If RECIPIENT finds physical defects in the media on which the
SOFTWARE is distributed or in the documentation, Intelic will replace
the media or documentation at no charge, provided RECIPIENT returns the
item to be replaced and such defects are not caused by misuse or abuse
of the media.
5.3 None of the foregoing warranties shall apply to the extent that
any alleged infringement or defect derives from:
(i) a combination of the SOFTWARE with any program, equipment or
device not approved by Intelic Software Solutions;
(ii) any modification or customization of the SOFTWARE by or on
behalf of RECIPIENT; or
(iii) RECIPIENT's failure to install promptly any Updates, or Upgrades
provided by Intelic under this Agreement.
These remedies shall only be available to RECIPIENT during the period covered by
the Software Support Program. If the RECIPIENT is not a current subscriber to
the Software Support Program then the above warranties do not apply. RECIPIENT's
remedies as set forth above are the sole and exclusive remedies to which
RECIPIENT is entitled in the event that the SOFTWARE fails to operate as
warranted.
6. DISCLAIMER OF OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN SECTION
5, THE SOFTWARE IS PROVIDED WITH NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
RECIPIENT ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE AND
ACCOMPANYING DOCUMENTATION MATERIALS TO ACHIEVE RECIPIENTS INTENDED RESULTS, AND
FOR THE INSTALLATION, USE AND RESULTS OF THE SOFTWARE. IN NO EVENT WILL INTELIC
OR ITS LICENSORS BE LIABLE TO RECIPIENT OR ANY OTHER PERSON FOR DIRECT,
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR
INABILITY TO USE THE SOFTWARE, TRAINING PROGRAMS OR DOCUMENTATION, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ALL INFORMATION REGARDING SOFTWARE
AND SERVICES IS AS PRESENTED BY INTELIC TO RECIPIENT.
7. TERMINATION. Intelic shall have the right to terminate this Agreement
upon sixty (60) calendar days' written notice if RECIPIENT breaches any of its
obligations under this Agreement. RECIPIENT shall, upon the effective date of
such notice, immediately, (i) purge all SOFTWARE from the Licensed Server and
all other computer systems, storage media and other files, (ii) return to
Intelic all copies (including partial copies) of the SOFTWARE and the related
documentation, and (iii) certify to Intelic in writing that it has complied with
the foregoing obligations and has not provided total or partial copies of the
SOFTWARE to any third party. Termination by Intelic shall not affect
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RECIPIENTS obligation to make payments of all outstanding amounts owed to
Intelic. In the event that RECIPIENT breaches this Agreement, Intelic shall be
entitled to all available damages and remedies provided by law, including
reasonable fees of attorneys and other professionals, in addition to its right
to terminate this Agreement. In no event shall Intelic or its licensors be
liable to RECIPIENT for any direct, indirect, special or consequential damages
as a result of termination of this Agreement for whatever reason.
8. MISCELLANEOUS. No amendment of this Agreement or waiver of any rights
hereunder shall be effective unless in writing and signed by the party against
whom enforcement is sought, other than the addition of subsequent SOFTWARE
modules. This Agreement and attached exhibit and addendum agreements, if any,
constitute the complete agreement of the parties and supersedes all previous
understandings, agreements or representations, written or oral, between the
parties on this subject matter.
8.1 This Agreement is specific to the RECIPIENT and neither this
Agreement nor any of RECIPIENT's rights or duties hereunder shall be
assigned, sublicensed, sold or otherwise transferred by RECIPIENT,
including to any successor-in-interest to RECIPIENT's rights in the
Licensed SOFTWARE, without Intelic's prior written consent. Any such
attempted assignment, sublicense, sale or other transfer shall be void.
8.2 In the event that any one or more provisions of this Agreement
is unenforceable, the enforceability of the remaining provisions shall
be unimpaired.
8.3 This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California, United States of
America.
8.4 The parties agree that they will use their best efforts to
amicably resolve any dispute arising out of or relating to this
Agreement. Any controversy, claim or dispute that cannot be so resolved
shall be settled by final binding arbitration in accordance with the
rules of the American Arbitration Association, and judgment upon the
award rendered by the arbitrator or arbitrators may be entered in any
court having jurisdiction thereof. Any such arbitration shall be
conducted in the city where the Intelic's headquarters are located, or
such other place as may be mutually agreed upon by the parties. Within
fifteen (15) days after the commencement of the arbitration, each party
shall select one person to act as arbitrator, and the two arbitrators so
selected shall select a third arbitrator within ten (10) days of their
appointment. Each party shall bear its own costs and expenses and an
equal share of the arbitrators expenses and administrative fees of
arbitration.
FOR RECIPIENT (DIODES INCORPORATED):
/s/ Xxxx Xxxxx
TITLE: CFO
Authorized Signature
Xxxx Xxxxx
DATE: 3/1/99
FOR INTELIC SOFTWARE SOLUTIONS, INC.:
/s/ Xxxxxxx Xxxx
TITLE: President
Authorized Signature
Xxxxxxx Xxxx
DATE: 3/4/99
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