PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT.
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
MUSE TECHNOLOGIES, INC.
SUPER VALUE-ADDED RESELLER (S-VAR) AGREEMENT
THIS AGREEMENT dated June 19, 1998, by and between Continuum
Resources International, ASA having headquarters at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
(hereafter, "S-VAR and S-VAR Subsidiary(ies)", and Muse Technologies, Inc.,
(hereafter "MTI") a Delaware Corporation having headquarters at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
WHEREAS, MTI has proprietary rights in certain software identified in
Attachment A hereto, and made a part hereof, (hereinafter referred to as "MTI
Licensed Product(s)"), and whereas MTI wishes to enhance the marketing, sales
and distribution of MTI Licensed Product(s). MTI has established its S-VAR
Program under which MTI sells to S-VAR(s) for integration of S-VAR product(s)
with the MTI Licensed Product(s).
WHEREAS, MTI is willing to grant such rights to market, sell and
distribute MTI Licensed Product(s) as described in MTI's Price List,
Attachment A. In addition, S-VAR is empowered to initiate and participate in
negotiations, upon MTI written approval and within the assigned Trading Area,
between MTI and 3rd parties (who are brought to MTI by S-VAR), for other MTI
VAR agreements. If "Up-front" money is paid to MTI for any of these
agreements, S-VAR is entitled to share in the "Up-front" revenue on a [ * ]
basis with MTI. ("Up-front" money is required from any reseller partner who
purchases a territory with exclusivity within the designated assigned Trading
Area for reselling MTI products.)
WHEREAS, S-VAR or S-VAR Subsidiary(ies) wishes to acquire the right
to integrate the MTI Licensed Product(s) and to resell with S-VAR Product(s)
in conjunction with their business and in accordance to the terms and
conditions of this Agreement, and whereas, S-VAR agrees to participate in
MTI's S-VAR Program and to market, sell and distribute the MTI Products to
End-Users of the S-VAR within the S-VAR's designated assigned Trading Area.
THEREFORE, S-VAR or S-VAR Subsidiary(ies) and MTI desire to enter
into this Agreement to set forth all of the obligations of the parties with
respect to the foregoing terms and conditions that are applicable herewith and
with those terms and conditions which may be agreed upon by both parties and
incorporated within this agreement from time to time as modifications.
ATTACHMENTS:
ATTACHMENT A, Muse Price List with Standard Terms &
Conditions,
ATTACHMENT B, End-User Software License Agreement,
ATTACHMENT C, Volume Commitment and Reseller Discount
Schedule,
ATTACHMENT C, (Exhibit 1): S-VAR Sales Schedule Commitment,
ATTACHMENT D, S-VAR Application Software and Hardware
Product(s),
ATTACHMENT E, S-VAR Agreement, Modifications
are incorporated into and form a part of this agreement. The original forms of
all Attachments listed above are the versions of the Attachments which are in
effect as of the date of this agreement. Muse may, from time to time, in
mutual agreement with S-VAR, modify Attachments A, B, and C; and also may,
from time to time, change the terms of the MTI S-VAR Reseller Program, but
will offer to S-VAR the option to elect either continuance of this agreement,
or adoption of the new agreement. In the event of a change to Attachment A,
MTI will provide a written notice of amendment to the S-VAR, which will after
30 days become a part of this agreement and will supersede any prior
notifications sent to the S-VAR subject to the referenced modifications.
DEFINITIONS: (as used in this agreement)
(Diamond) "Application" means S-VAR's application software
and hardware products(s) and services as submitted
to MTI for approval by the S-VAR and identified on
Attachment D.
(Diamond) "Volume Commitment" means S-VAR's committed sales
volume within S-VAR's designated trading area as
listed on Exhibit 1.
(Diamond) "Confidential Information" means information and/or
materials containing information which concern,
without limitation, MTI's software secrets,
business plans, customers, technology or products,
and are proprietary and/or confidential in nature.
(Diamond) "Effective Date" means the date upon which the term
of this agreement will commence, and after MTI
signs this agreement on the signature page hereof.
In the case of a Master VAR, or S-VAR agreement,
the effective date of the contract will be no later
than ten days after all required signatures are on
the agreement, and on the day in which the
"up-front" funds have been transferred to the MTI
bank accounts.
(Diamond) "End User" means S-VAR's customers or S-VAR's
Subsidiary(ies), which shall only be the ultimate
End-Users of Product(s), (i.e. S-VAR may not market
or distribute MTI Licensed Product(s) through
intermediaries such as contractors, dealers or
other distributors.) End-Users shall not include
any agency, department, or entity of the U.S.
Government, unless previously agreed to by MTI in
writing as an integrated part of the S-VAR's
Trading Area.
2
(Diamond) "Software License" means MTI's standard End-User
Software License agreement, as may be amended from
time to time by MTI, Attachment B.
(Diamond) "Product(s)" means any combination of equipment and
licensed software.
(Diamond) "S-VAR Subsidiary(ies)" means any entity of which
50% or more of the voting rights are owned or
controlled, directly or indirectly, by S-VAR;
provided, however, that such entity shall be deemed
to be a S-VAR Subsidiary only for so long as such
ownership or control exists by the S-VAR.
(Diamond) "S-VAR Transfer of Software License Agreement
Attachment" is an attachment of the standard MTI
Software License Agreement which S-VAR, in
accordance with MTI Software License Agreement,
will complete and forward to MTI whenever it
resells MTI Licensed Product(s).
(Diamond) "Trademarks" means any trademark, or marks or
tradename which MTI may designate or use, or adapt
from time to time.
(Diamond) "MTI License Product" shall mean all current
versions of MTI software programs identified in
MTI's Price List, Attachment A, and the
documentation used in conjunction therewith, in
final form only, in existence as of the Effective
Date of the contract.
(Diamond) "Know How" means the valuable, confidential,
proprietary information of MTI relating to the
contents, workings, installation and implementation
of the MTI Licensed Product(s).
(Diamond) "Market" means the right of S-VAR to promote and
offer MTI Licensed Product(s), together with the
right to directly transfer ownership of MTI
software license(s) to its End-Users to use the MTI
Licensed Product(s) with a designated CPU.
(Diamond) "Trading Area" means the designated territory in
which the S-VAR may sell MTI Licensed Product(s).
NOW THEREFORE, in consideration of the covenants and conditions set
forth herein, the parties hereto agree as follows:
3
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
1. SALE OF MTI LICENSED PRODUCT(S)
1.1 Sale of MTI Licensed Product(s). MTI agrees to sell to S-VAR, and
S-VAR agrees to purchase MTI Licensed Product(s) under the terms and
conditions of this Agreement for the S-VAR's Market. Payment terms
are net [ * ] days after the date of invoice by MTI to S-VAR, and
deliveries will be made F.O.B. Albuquerque, New Mexico.
1.2 Trading Area. MTI authorizes S-VAR to resell MTI Licensed
Product(s) and services on an industry exclusive basis within the
following Trading Area:
o The Petroleum Industry, U.S. Wide
o The International Petroleum Industry,
(Any International order of MTI Licensed Products by S-VAR must be
pre-approved in writing by MTI prior to the sale, due to the fact
that MTI must limit sales to countries which are restricted by U.S.
Federal Laws.)
1.3 Licensed Product. As used in this agreement, "Licensed
Product(s)" means the proprietary software and operating system
product modifications distributed by MTI as the MTI Licensed
Product(s).
1.4 Standard Terms and Conditions: MTI Standard Terms and Conditions
of Sale, Attachment A, are hereby incorporated into and made a part
this contract. In the case of conflicting terms between this S-VAR
agreement and MTI's Standard Terms and Conditions, the terms of this
S-VAR agreement will prevail.
1.5 Trading Area Restrictions: MTI Reserves the following Trading
Areas within the Petroleum Industry to be "non-protected for
exclusivity", and restricts the S-VAR from marketing, selling, or
distributing the MTI licensed product (s) in the following areas
except when specifically approved by MTI in writing:
o Relational Database for Non-Petroleum based
Applications
o Commercial Banking and Financial Applications
2. DISTRIBUTION OF MTI LICENSED PRODUCT(S)
2.1 Grant of MTI S-VAR License. Subject to the terms and conditions
of this Agreement, MTI grants to S-VAR, and S-VAR accepts from MTI,
an exclusive and
4
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
non-transferable license to market, sell and distribute copies of
the MTI Licensed Product(s) supplied to S-VAR by MTI, solely within
the assigned designated Trading Area and Markets as defined in
section 1.2 of the Agreement. (Shipments by the S-VAR outside the
United States must be specifically approved by MTI in writing prior
to offer being made). S-VAR acknowledges that nothing in this
Agreement precludes MTI from distributing the MTI License Product(s)
directly to MTI End-Users or through other contractors, dealers,
distributors, and value-added resellers in this market or any other
vertical markets, industries or brokerages. [ * ]
[ * ]
[ * ]
[ * ]
[ * ]
S-VAR may only sell MTI Licensed Product(s) in the assigned
Trading Area where it is able to provide adequate face-to-face
support for the product, and maintain a showroom and/or demonstration
facility to promote, demonstrate and sell the S-VAR product(s) in
which MTI Licensed Product(s) will be integrated. S-VAR shall not
sell or offer to sell product outside the assigned Trading Area or to
entities, departments or agencies of the U.S. Government outside the
Trading Area without MTI's prior written permission.
2.2 Title to MTI Licensed Product(s).
S-VAR shall be deemed to have purchased from MTI, for distribution
under this Agreement, only the magnetic and other physical media on
which copies of the MTI Licensed Product(s) are delivered by MTI.
Title to the Licensed Product(s) shall at all times remain with MTI
and nothing in this Agreement shall be construed to effect a transfer
of ownership of the MTI Licensed Product(s), which is licensed only
and not sold to S-VAR's customers.
2.3 Distribution Copies.
For each copy of the MTI Licensed Product(s) to be supplied to S-VAR
under this Agreement, MTI will deliver one copy of the computer
programs on magnetic media or via electronic transfer. Neither S-VAR
nor their customers shall have any rights to the source code for the
MTI Licensed Product(s) under this Agreement.
2.4 End-User Licenses.
All copies of the MTI Licensed Product(s) distributed under this
Agreement by the S-VAR shall be subject to the terms and conditions
of the MTI Software License Agreement and the MTI S-VAR Transfer of
Software License Agreement, a copy of both of which are attached as
Attachment B to this Agreement. Except as provided otherwise
5
below, S-VAR may distribute a copy of the MTI Software Licensed
Product(s) only if the MTI Software License Agreement has been signed
by the S-VAR and the MTI S-VAR Transfer of Software License Agreement
for the S-VAR's End User has been completed and signed by both
parties and returned to MTI corporate office for registration by MTI.
S-VAR shall have no authority to modify any provision of the MTI
Software License Agreement and the MTI S-VAR Transfer of Software
License Agreement Attachment. However, when notified of an END-USER
requested change to either the MTI Software License Agreement or the
MTI S-VAR Transfer of Software License Agreement Attachment, MTI will
not unreasonably refuse changes therein. VAR S-VAR agrees to refer
all inquiries concerning customized MTI Software Licenses for use of
the (i.e., site licenses, floating licenses, etc.), MTI Licensed
Product(s) to MTI.
2.5 Certain Restrictions. S-VAR agrees that it will not: (a) copy or
otherwise duplicate the Licensed Product(s) or any part thereof, (b)
rent, lease, lend or otherwise transfer on a temporary basis any copy
of the Licensed Product(s) without completing MTI's S-VAR Transfer of
Software License Agreement Attachment and forwarding to MTI for
registration by MTI, C distribute any copy of the Licensed Product(s)
in violation of any provision of this Agreement, or (3) prepare any
derivative works not approved for distribution by MTI based on the
MTI Licensed Product(s) or otherwise modify or adapt the MTI License
Product(s) in any manner without written approval of MTI. MTI shall
be entitled to terminate this Agreement immediately upon written
notice to S-VAR in the event of any violation of this section.
2.6 Support Provider: In the event S-VAR desires to become an
authorized support provider for MTI products, each S-VAR entity,
(i.e., office, employee) that will provide support must be approved
by MTI and participate in MTI training for the MTI products to be
supported.
2.7 MTI Derivative Products: MTI will enter into discussions with
S-VAR relative to marketing or sales of derivative products which
will not require MTI development or run-time licenses but in which
will be embedded MTI licensed products.
3. MARKETING AND PROMOTION
3.1 Marketing Materials. MTI will make available to S-VAR at
reproduction charge only, such promotional materials for the MTI
Licensed Product(s) as MTI may from time to time make generally
available to other participants in the MTI S-VAR Programs. MTI may,
in its sole discretion, include S-VAR's name on such promotional
materials as MTI determines to be appropriate.
3.2 Trademarks and Trade Names
6
3.2.1 S-VAR acknowledges and agrees that all rights in trade
names, and the "MTI" product name and all trademarks and
service marks associated therewith, and any and all
packaging, trade dress, advertising and marketing materials
MTI creates or develops for the MTI License Product(s), are
and shall at all times
remain MTI's exclusive property and S-VAR will acquire no interest
therein by virtue of this Agreement or S-VAR's performance
thereunder.
3.2.2 MTI hereby grants to S-VAR a nonexclusive license to
use MTI's product names and trademark(s) in S-VAR's
marketing, sales and distribution of the MTI Licensed
Product(s), subject to and in accordance with the terms and
conditions of this Agreement. MTI makes no warranty, express
or implied, as to the use of validity of its trade names and
marks.
3.2.3 Unless otherwise directed in writing by MTI, S-VAR
shall refer to MTI Licensed Product(s) in all advertising,
marketing and similar materials prepared by S-VAR as
(upsilon)uSE(TM) (Multidimensional, User-oriented, Synthetic
Environment) or to other MTI trademarks, logos or product
names and services as appropriate (together "MTI Marks").
S-VAR shall comply with all written guidelines furnished by
MTI. S-VAR shall include in all materials referring to the
MTI Licensed Product(s) the following legend, or such
similar legends as MTI may direct concerning the MTI Marks:
"(upsilon)uSE(TM) (Multidimensional, User-oriented, Synthetic
Environment)" and the MTI logo are trademarks of Muse
Technologies, Inc. S-VAR shall not distribute any
advertising, marketing and similar materials referring to
the MTI Licensed Product(s) or MTI unless MTI has approved
the form of such materials in advance in writing.
3.2.4 S-VAR shall in no way use the MTI Marks, or any
product name or trademark or service ▇▇▇▇ of MTI, or any
confusingly similar name or make, as part of S-VAR's
corporate name or trademark. Upon termination of this
Agreement, S-VAR shall cease to use any proprietary name or
▇▇▇▇ of MTI or any confusingly similar name or ▇▇▇▇.
4. TECHNICAL SUPPORT
4.1 Support to End-Users. At S-VAR's sole expense, S-VAR agrees to
maintain a qualified support staff capable of providing technical
support services as S-VAR's customers may require. S-VAR shall make
its support staff available to customers for telephone consultation
during S-VAR's normal business hours, with charges for this support
at the discretion of the S-VAR. The S-VAR may also refer its
customers to MTI for any additional support services required, but
S-VAR's customers will be charged at MTI's published rates for this
service, and the referral will be accepted by MTI at MTI's
7
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
option. Where MTI provides direct support at S-VAR's customer's
outside the U.S.A., MTI shall charge a surcharge of [ * ] above its
published support rates, and actual and reasonable expenses for
travel and subsistence will be added.
4.2 MTI support to S-VAR. MTI shall make its License Product(s)
support staff available during MTI's ordinary business hours for
reasonable telephone technical consultation services with personnel
from S-VAR's support staff responsible for the Licensed Product. MTI
shall furnish such technical consultation services to S-VAR's
End-User customers at MTI's normal hourly rate as published by
established catalogue price lists. The license fee does not include
installation or annual maintenance of the software. MTI will furnish
installation and maintenance services as mutually agreed upon by MTI
and S-VAR, if desired by licensee, for additional installation fee
listed in MTI standard price list, Attachment A.
5. UPDATES
5.1 MTI Updates. MTI may from time to time make available, either
with or without charge, updated, enhanced or corrected revisions of
the Licensed Product (referred to below as "Updated Versions") and
will promptly notify S-VAR of the availability and cost to S-VAR of
such Updated Versions. S-VAR shall promptly notify the end-users to
which it has distributed the MTI Licensed Product(s) of the
availability of such Update Versions and with information on how to
procure such version and its cost for Updated Versions which MTI
makes this information available to S-VAR without charge. S-VAR will
furnish such versions to end-users who request the same without
charge to the end-user other than reasonable charges for
shipping/handling and for any installation services provided by
S-VAR. MTI may, in its sole discretion, make Updated Versions
available to end-users directly from MTI or through contractors,
dealers or other third parties.
6. TERM AND TERMINATION
6.1 Term of Agreement. This Agreement shall become effective on the
date executed by the parties to sign and shall remain in effect for
an initial term ending three (3) years from such date (the "Initial
Term"). Thereafter, this Agreement shall be renewed for successive
three (3) year periods (the "Renewal Term") unless either party gives
written notice of termination not less than sixty (60) days prior to
the termination of the Initial Term or any Renewal Term. As long as
S-VAR continues to meet quotas listed on Exhibit 1 to Attachment C of
this agreement, MTI will not terminate this agreement without cause
nor refuse to renew agreement for successive terms. The provisions of
this
8
Section 6.1 are subject to all termination provisions of this
Agreement, including Section 6.2 below.
6.2 Default and Termination. S-VAR may terminate this Agreement if
MTI materially defaults in the performance of its obligations
thereunder and fails to cure such default within ninety (90) days
after written notice thereof from S-VAR. Such termination shall be by
S-VAR's sole remedy in the event of default by MTI.
S-VAR shall be deemed in material default under this
Agreement if S-VAR fails to pay any amounts when due thereunder,
cancels or attempts to cancel this Agreement prior to delivery, or
refuses delivery, or otherwise fails to perform its obligations. In
the event of a material default by S-VAR, MTI may, upon written
notice to S-VAR: (1) suspend its performance and withhold shipments
in whole or in part, and/ or (2) terminate this Agreement, and/or (3)
declare all sums owing to MTI immediately due and payable and/or (4)
recall products in transit, retake the same and repossess any
products held by MTI for S-VAR's account, without the necessity of
any other proceedings, and S-VAR agrees that all products so recalled
taken or repossessed shall be the property of MTI, provided that
S-VAR is given credit therefore.
Exercise of any of the foregoing remedies by MTI shall not preclude
exercise of any of the others, and neither the existence nor exercise
of any such remedies shall be construed as limiting, in any manner, any
of the rights or remedies available to MTI under the Uniform Commercial
Code or other laws.
6.3 Non Performance to Contracted Sales Volumes. At the option of MTI
if S-VAR fails to achieve Committed Sales Volumes as defined in
▇▇▇▇▇▇▇ ▇, ▇-▇▇▇ Sales Schedules Commitment, MTI reserves the right
to terminate this contract or reduce future discounts allowable.
6.4 Effect of Termination. Upon any termination of this Agreement,
S-VAR shall immediately discontinue any distribution of the Licensed
Product and shall immediately return to MTI at S-VAR's expense, MTI
Licensed Product(s) not yet purchased, MTI Confidential Materials,
and Marketing Materials in S-VAR's possession. S-VAR shall continue
to be obligated for any amounts due MTI as of the date of
termination. MTI shall retain rights to all customer identification
and ancillary information as part of its normal MTI End-User license
registration process. In the event MTI terminates this agreement with
S-VAR, MTI agrees to provide continued support and maintenance
directly to end users of S-VAR as long as end-user continues to pay
the required maintenance and renewal fees directly to MTI.
7. ORDERS AND PRICES
7.1 Orders. All orders from S-VAR for MTI Licensed Product(s) shall
be paid in US Dollars and subject to this Agreement, and the terms
and conditions of this
9
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
Agreement shall supersede any conflicting or additional terms and
conditions contained in S-VAR's purchase orders except that such
purchase orders shall be effective as to quantity of copies ordered
by S-VAR. All orders are subject to acceptance in writing by MTI at
its principal place of business, and shall not be binding until the
earlier of such acceptance or shipment, and in the case or shipment,
only as to the portion of the order actually shipped.
7.2 Price. MTI's current list prices, rates and license fees are
listed in Attachment A, and may he updated from time to time.
International pricing for MTI Licensed Product(s) will incur a [ * ]
surcharge on all shipments outside the US. All International
shipments are required to be pre-paid prior to shipment. MTI shall
provide written notice to S-VAR at least thirty (30) days prior to
the effective date of any increase or decrease to its current list
prices. S-VAR will pay MTI for each MTI Licensed Product(s) or
Services shipped by MTI pursuant to S-VAR's orders. Payment terms are
net [ * ]. The price shall be equal to MTI's current list price less
discount in effect on the date the order is received by MTI as
defined in Attachment C (Reseller Discount Schedule). MTI further
guarantees that all S-VAR's within the MTI S-VAR Program (except for
Master S-VARS) will receive an equally discounted rate for equal
sales volume commitment described by the annual volume commitment
table shown in Exhibit 1. MTI guarantees S-VAR that the listed
selling price to MTI's direct customers will not fall below S-VAR's
discounted prices and result in an non-competitive pricing scenario
for the S-VAR.
7.3 Taxes. The price of the MTI Licensed Product(s) established under
this Agreement does not include any federal, state or local sales,
use, value-added or other taxes and fees which MTI may be required to
pay or collect upon delivery to S-VAR. S-VAR agrees to pay MTI the
amount of any such taxes or fees upon receipt of MTI's invoice
thereof.
7.4 Payment Terms. For MTI contracted services or consultation, an
initial advanced deposit of [ * ]is required to begin work by MTI.
Payment for the MTI Licensed Product(s) and contract services ordered
by the S-VAR shall be due [ * ] days from the date of shipment or as
otherwise provided.
7.5 Shipment and Risk of Loss. S-VAR will be responsible for, and pay
all shipping charges incurred by MTI in shipping MTI Licensed
Product(s) to S-VAR. All risk of loss or damage to any shipment will
pass to S-VAR upon delivery by MTI to the shipper. MTI Licensed
Product(s) shall be shipped F.O.B. Albuquerque, New Mexico to any
location in the United States designated by S-VAR when delivered to
the shipper at the shipping point. MTI reserves the right to ship
products collect. In the event S-VAR rejects or revokes acceptance of
the products for any reason, all risk of loss and/or
10
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
damage to such products shall remain at S-VAR's expense unless and
until the same are returned at S-VAR's expense to such place as MTI
may designate in writing.
7.6 Deliveries. MTI may make partial shipments, to be separately
invoiced and paid when due in accordance with the payment terms set
forth above. MTI will use all reasonable efforts to meet S-VAR's
delivery schedule, but shall not be liable for any failure or delay
in shipment due to any cause beyond MTI's control. MTI reserves the
right to refuse, cancel or delay shipment when S-VAR is delinquent in
payments to MTI, or when S-VAR has failed to perform its obligations
under this Agreement. S-VAR agrees that such delay in delivering or
failure to deliver or perform any part of this Agreement shall not be
grounds for S-VAR to terminate or refuse to comply with any provision
of this Agreement and no penalty of any kind shall be effective
against MTI for delay or failure, provided, however, that if the
delay or failure extends beyond [ * ] from the originally scheduled
date either party may, with written notice to the other, terminate
this Agreement without further liability. Each shipment shall be
considered a separate and independent transaction and payment for
each shipment shall be due accordingly.
7.7 Acceptance. All products delivered thereunder shall be deemed
accepted by S-VAR as conforming to this Agreement, and S-VAR shall
have no right to revoke any acceptance, unless written notice of the
claimed nonconformity is received by MTI within [ * ] days of
delivery thereof. Notwithstanding the foregoing, any use of a product
by S-VAR, its agents, employees, contractors or licensees, for any
purpose after delivery thereof, shall constitute acceptance of that
product by S-VAR.
7.8 S-VAR Export Control. S-VAR shall abide by the export control
laws and regulations of the United States Department of Commerce and
other United States governmental regulations relating to the export
of MTI Licensed Product(s). Failure to obtain an export control
license or other authority from the United States Government may
result in criminal liability under US Laws. All export requirements
will be registered by S-VAR with the United States Export Agency and
copies of all filings will be provided to MTI.
8. INFRINGEMENT
8.1 Infringement. The sale of MTI Licensed Product(s) thereunder does
not convey any express or implied license under any patent,
copyright, trademark or other proprietary rights owned or controlled
by MTI, whether relating to the MTI Licensed Product(s) sold to any
manufacturing process of MTI or other matter. All rights under any
such patent copyright, trademark or other proprietary rights are
expressly reserved by MTI.
11
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
The foregoing state MTI's sole liability for any claim based
upon or related to any alleged infringement of any patent or other
intellectual property rights. MTI shall have no liability for any
claim of infringement which is based on a combination of products
furnished under this Agreement with products, equipment or materials
nor furnished here under, or based upon any items made with the
products furnished under this Agreement. S-VAR shall defend and hold
MTI harmless against any claimed infringement of patents, trademarks
or other intellectual property rights arising out of compliance by
MTI with S-VAR's designs, specifications or instructions.
9. WARRANTY: LIMITATIONS ON LIABILITY
9.1 Limited Warranty. For [ * ] days following the delivery of the
MTI Licensed Product(s) to S-VAR, the MTI Licensed Product(s) will
substantially conform to MTI's then current User Documentation for
the MTI Licensed Product(s) and shall be free of defects. S-VAR
agrees that MTI's sole liability and S-VAR's sole remedy for
non-conformities or defects in the MTI Licensed Product(s) shall be
that for such [ * ] after delivery for the same, MTI will: (a)
correct any reproducible failure of the Licensed Products to
substantially confirm to such specifications; (b) replace defective
media with conforming media.
9.2 Compatibility. MTI further warrants that the Licensed Products
are compatible with the systems and environments identified within
the Commercial MTI price list.
9.3 No Other Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH
ABOVE, AND IN MTI's SOFTWARE LICENSE AGREEMENT MTI MAKES NO EXPRESS
OR IMPLIED WARRANTY WITH RESPECT TO THE MTI LICENSED PRODUCT(S),
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE; AND THE EXPRESS WARRANTY STATED
ABOVE IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF MTI FOR DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE, OR
PERFORMANCE OF THE LICENSED PRODUCTS.
THE AGGREGATE LIABILITY TO MTI, IN DAMAGES OR OTHERWISE,
SHALL IN NO EVENT EXCEED THE PAYMENT, IF ANY, RECEIVED BY MTI FOR THE
PRODUCTS FURNISHED OR TO BE FURNISHED, AS THE CASE MAY BE, WHICH IS
THE SUBJECT OF CLAIM OR DISPUTE. IN NO EVENT SHALL MTI BE LIABLE FOR
SIMILAR LOSS OR DAMAGES OF ANY KIND, HOWEVER CAUSED, OR ANY PUNITIVE
DAMAGES OR RESULTING FROM ANY BREACH
12
OF WARRANT, WHETHER EXPRESS OR IMPLIED, OR OTHERWISE, RELATING TO THE
PRODUCTS EVEN IF S-VAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES OR IF THE REMEDIES HEREIN ARE FOUND INADEQUATE. NO ACTION,
REGARDLESS OF FORM, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
AGREEMENT OR PRODUCTS FURNISHED BY MTI MAY BE BROUGHT BY S-VAR MORE
THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUED.
THE PARTIES EXPRESSLY AGREE THAT LIMITATIONS ON MTI's
LIABILITY FOR S-VAR's DAMAGES AS PROVIDED IN SECTION 9 ABOVE SHALL BE
INDEPENDENT OF THE REMEDIES PROVISION OF SECTION 9 AND SHALL BE VALID
AND ENFORCEABLE WHETHER OR NOT THE REMEDIES SET FORTH IN SECTION 9
"FAIL OF THEIR ESSENTIAL PURPOSE" UNDER SECTION 2-719(2) OF THE
UNIFORM COMMERCIAL CODE.
10. RELATIONSHIP OF THE PARTIES
The relationship between MTI and S-VAR under this Agreement is
intended to be that of independent contractors. Nothing in this agreement
shall be construed to create any partnership, joint venture or agency
relationship of any kind. Neither party has any authority under this Agreement
to assume or create any obligations on behalf of or in the name of the other
party or to bind the other party, to any contract, Agreement or undertaking
with any third party.
11. NOTICES
All notices in connection with this Agreement shall be in writing and
shall be sent, in person or by first-class mail, postage prepaid, to the
address for the recipient set forth by its signature below or to such other
address as such party may hereafter specify by notice to the other. Such
notices shall be deemed given when delivered to the other party or, if sooner,
three (3) days after mailing if mailed by certified or registered mail,
postage prepaid.
12. GENERAL
12.1 Applicable Law. This Agreement and all disputes in any way
related to, arising under, in connection with, or incident to this
Agreement shall be governed by the laws of the United States of
America, and the State of New Mexico (excluding New Mexico's conflict
of laws rules which would refer to and apply the substantive laws of
another jurisdiction). The Parties expressly agree that this
Agreement shall not be subject to the United Nations Convention on
the International Sale of Goods. Any suit or proceedings thereunder
shall be brought only in Albuquerque, New Mexico, and each of the
Parties consent to the personal jurisdiction of the courts located
therein.
13
12.2 Arbitration. Any claim or dispute between the parties arising
out of or in connection with this Agreement or the breach or
performance hereof shall be determined exclusively by arbitration in
the state of New Mexico, in accordance with the then applicable rules
of the American Arbitration Association except for matters involving
less than $50,000 (exclusive of interest and costs) and except for
claims of infringement of MTI's proprietary rights in the Licensed
Product(s) or any trade name, trademark or service ▇▇▇▇ of MTI or
violations of Section 2.5 of this agreement. The determination and
any award in such arbitration will be final and binding on the
parties, and judgment thereon may be entered in any court of
competent jurisdiction.
12.3 Costs of Enforcement. In the event any judicial or arbitration
proceedings between the parties are commenced with respect to any
claim or dispute arising out of or in connection with this Agreement,
or the breach or performance hereof, the party who prevails in such
action upon the final determination thereof shall be awarded, in
addition to such amounts as may be awarded in the action, its costs
and expenses incurred in prosecuting or defending the action
including reasonable fees and expenses of counsel.
12.4 Security Interest. Upon delivery to S-VAR, MTI reserves a
security interest in MTI Licensed Product(s) for which payment has
not been received. S-VAR shall execute any documents required to
perfect MTI's security interest. Upon default by S-VAR, MTI shall
have all of the rights of a secured party under the Uniform
Commercial Code.
12.5 Waiver. No failure by a party at any time to require performance
of any provision of this Agreement will affect the right of such
party to require performance at any later time. No waiver by a party
of a breach of any provision of this Agreement shall be construed as
a waiver of any succeeding breach of such provision or a waiver of
the provision itself. No waiver shall be effective unless in writing
and signed by the party sought to be charged therewith.
12.6 Assignment. Neither this Agreement nor any license or right here
under may be assigned or sub-licensed by S-VAR, in whole or in part,
without the express written consent of MTI, which consent may be
withhold in MTI's sole discretion. Any prohibited assignment or
sub-license shall be void. In the event of any change in the ownership
of a controlling equity interest in S-VAR, MTI may terminate this
Agreement upon written notice to S-VAR, but MTI shall remain obligated
thereunder notwithstanding any such assignment.
12.7 Binding Effect. This Agreement shall be binding upon and insure
to the benefit of the successors and permitted assigns of the
respective parties hereto.
12.8 Severability. If any provision of this Agreement is declared by
a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions of this Agreement will
nevertheless continue in full force and effect without being impaired
or invalidated in any way.
14
12.9 Caption. The captions contained in this Agreement are for
reference only and shall not be used in the construction and
interpretation of this Agreement.
12.10 Entire Agreement. This Agreement constitutes the entire
understanding and Agreement of the parties hereto with respect to the
subject matter hereof, and supersedes all prior Agreements or
understandings, written or oral, between parties with respect to such
subject matter.
12.11 Modification. This Agreement may not be amended except by a
written instrument signed by both parties.
12.12 Compliance with all laws. S-VAR agrees it will perform its
obligations under this Agreement in accordance with all applicable U.S.A.
laws, rules and regulations now or hereafter in effect, including but not
limited to those laws, rules and regulations regarding the testing, licensing,
registrations and administrative filings and disclosures, manufacture,
distribution and exporting of the MTI Licensed Product(s) within the United
States and within relevant foreign countries.
15
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
by their authorized representative on the date indicated below:
Continuum Resources International ▇▇▇ ▇▇▇▇ Technologies, Inc.
By: /s/ ▇.▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇.▇▇▇▇▇
----------------------------- --------------------
Name: ▇.▇. ▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------- --------------------
Title: CEO Title: President
----------------------------- --------------------
Date: 6/19/98 Date: 6/19/98
----------------------------- --------------------
Address for Notices: Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇▇▇ #▇▇▇
----------------------------- ---------------------------
Houston
----------------------------- ---------------------------
▇▇ ▇▇▇▇▇
----------------------------- ---------------------------
Phone: (▇▇▇) ▇▇▇ ▇▇▇▇ Phone:
--------------------
FAX: (▇▇▇) ▇▇▇ ▇▇▇▇ FAX :
--------------------
16
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
ATTACHMENT A
(Muse U.S. Price List and Standard Terms & Conditions)
U.S. COMMERCIAL PRICE LIST
1/1/98
PRODUCTS & PRODUCT SUPPORT SERVICES
PRODUCT
SOFTWARE DEVELOPMENT LICENSE ANNUAL SUPPORT AND INSTALLATION &
LICENSE MAINTENANCE INTEGRATION
------------------------- --------------- -------------------- -----------------
SINGLE USER
Foundation [ * ] [ * ] [ * ]
Renaissance [ * ] [ * ] [ * ]
SHARED ENVIRONMENT
Continuum Foundation
Renaissance with [ * ] [ * ] [ * ]
Continuum Module
APPLICATION RUN-TIME
LICENSE
Foundation [ * ] [ * ]
Renaissance [ * ] [ * ]
Continuum Foundation
Renaissance Continuum [ * ] [ * ]
APPLICATION PRODUCTS
Solar System Development [ * ] [ * ]
Run-Time Model [ * ] [ * ]
StarDust Model [ * ] [ * ]
Development [ * ] [ * ]
Run-Time Model
17
ATTACHMENT A, PAGE 2
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
FEA Analyzer [ * ] [ * ]
Development [ * ] [ * ]
Run-Time
ADD-ON MODULES
Audio Software [ * ] [ * ] configuration dependent
Voice Recognition [ * ] [ * ] configuration dependent
Speech Synthesis [ * ] [ * ] configuration dependent
Real Time Collision [ * ] [ * ] configuration dependent
Detect
TRAINING & CUSTOM
SUPPORT SERVICES
Training Class # PEOPLE ON-SITE OFF-SITE
Site Administration
(hardware) 5 2 days [ * ] [ * ]
Site Administration
(Software) 5 3 days [ * ] [ * ]
Application Development
Introductory 5 5 days [ * ] [ * ]
Application Development
Advanced 3 days [ * ] [ * ]
Custom Classes Available
Note: All International Orders require a [ * ] addendum to above listed prices:
18
ATTACHMENT A, PAGE 3
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
TRAINING & CUSTOM SUPPORT SERVICES
Training Class # Persons Duration On-Site (?) Off-Site (?)
Site Administration 5 2 Days [ * ] [ * ]
(hardware)
Site Administration 5 3 Days [ * ] [ * ]
(Software)
Application Development 5 5 Days [ * ] [ * ]
Introductory
Application Development 5 3 Days [ * ] [ * ]
Advanced
Custom Classes Available
CONSULTING SERVICES
Technical Support 1 [ * ] [ * ]
1 1st Day [ * ] [ * ]
Design Support 1 .5 day [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
Note: All International sales require [ * ] addendum to the above listed
prices, in addition to actual and reasonable expenses to be covered in the
case of required travel.
19
ATTACHMENT A, PAGE 4
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
MTI STANDARD TERMS AND CONDITIONS
PAYMENT TERMS:
Payment for the MTI Licensed Product(s) and Services shall be due according to
the terms in the S-VAR purchase order or S-VAR agreement. If payment is not
received according to such terms, MTI shall have the right to discontinue the
Licensee's usage of Software and Licensee hereby waives any rights to
continued usage of the MTI Licensed Product(s) if the payments are not met
according to the Payment Terms. Payment Terms are net [ * ] days from MTI
invoice date. MTI shall be held harmless by S-VAR for any claim whatsoever
arising out of discontinuance of usage of the Software by the S-VAR's due to
nonpayment.
For MTI contracted services, contracted development or consultation to S-VAR's
customer where referrals are made, an initial advanced deposit of [ * ] is
required to begin work by MTI. Payment for balance of contract services
ordered by the S-VAR shall be due [ * ] days from the date of shipment or as
otherwise provided.
TAXES:
Prices are exclusive of all royalties, gross receipts, sales, use and like
taxes. Any tax that MTI may be required to collect or pay upon the delivery of
the MTI Licenysed Product(s) or the performance of services described in this
Agreement shall be paid by the S-VAR, and such sums shall be due and payable
upon delivery or performance [ * ]days from date of invoice. No discounts will
apply.
PRODUCT SPECIFICATION CHANGES:
MTI reserves the right, without limitations and without obtaining prior
approval from or notice to the S-VAR, to make changes in and to the Software
and MTI Licensed Product(s) and services; (a) when required for purposes of
safety; or (b) to meet MTI product development specifications.
DELIVERIES:
Deliveries of MTI Licensed Product(s)will be made F.O.B. Albuquerque, New
Mexico.
INTERNATIONAL SALES:
International orders accepted by MTI will be required to be paid in full at
time of the order. No dating will be allowed. Terms are payment upon receipt
of Order.
20
ATTACHMENT B
(End User Software License Agreement)
SOFTWARE LICENSE AGREEMENT
THIS AGREEMENT by and between Muse Technologies, Inc., with offices
at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and Continuum
Resources, ASA having headquarters at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ (hereinafter referred to as "LICENSEE').
WHEREAS, Muse Technologies, Inc. has proprietary rights in certain
software identified in Appendix A attached hereto and made a part hereof
(hereinafter referred to as "Software") and
WHEREAS, LICENSEE wishes to acquire the right to use the Software in
conjunction with its business; and
WHEREAS; Muse Technologies, Inc. is willing to grant such rights as
defined in consideration of the payment by S-VAR of the required fees as set
forth in the Muse Technologies, Inc. Commercial Price List for Muse
Technologies, Inc. software licenses, and contingent upon agreement of
LICENSEE to be bound by the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the covenants and conditions set
forth herein, the parties hereto agree as follows:
1. LICENSEE SUBJECT TO LICENSEE's PERFORMANCE OF ITS OBLIGATIONS
UNDER THIS AGREEMENT:
(a) Muse Technologies, Inc. grants to LICENSEE a nonexclusive,
nontransferable license to use the Software in object code form in the
location and only for the number of seats set forth in Appendix A of this
Agreement under LICENSEE INFORMATION.
(b) LICENSEE may copy the Software in machine-readable form only for
backup or archival purposes for License's sole use.
(c) LICENSEE shall not reverse assemble or reverse compile the
Software in whole or in part. All copies of the Software made by LICENSEE
shall be and remain the property of Muse Technologies, Inc. LICENSEE shall not
use, reproduce, translate, modify, display, perform, sell, license,
sub-license, or otherwise distribute, transfer or dispose of the Software
except as expressly provided for in this Agreement.
(d) No other license rights and no title or ownership rights in the
Software are hereby granted or transferred to LICENSEE under this Agreement.
21
ATTACHMENT B, PAGE 2
(e) LICENSEE shall use the Software for its own intern al use and for
that of its 50% or more owned subsidiaries and shall not provide use of the
Software to any third party or provide services or products to any third party
using the Software except as provided for herein.
2. FEES
LICENSEE shall pay to Muse Technologies, Inc. the fee set forth in
the Muse Technologies, Inc. Commercial Price List for use of the Software. The
fee for the License and maintenance shall be paid by LICENSEE upon execution
of this Agreement, and each subsequent maintenance renewal fee shall be paid
by LICENSEE prior to the end of each anniversary date (the date of this
Agreement).
3. RETENTION OF TITLE & OWNERSHIP OF INTELLECTUAL PROPERTY OWNERSHIP
(a) Title to all intellectual property rights, including without
limitation, patent, trademark, copyright and trade secret rights in and to the
Software, including derivative works of the Software; and, title to all
ownership rights in all copies of all media bearing the Software, are and
shall remain in Muse Technologies, Inc. LICENSEE shall, upon the reasonable
request of Muse Technologies, Inc., executive any documents necessary to
transfer any ownership in rights or title to such Software or other materials
to Muse Technologies, Inc.
(b) LICENSEE agrees that ownership of the copyright and all other
intellectual property rights and title to any software and other materials
used by Muse Technologies, Inc. to create the Software or to perform services
delivered by Muse Technologies, Inc. under this Agreement shall reside in Muse
Technologies, Inc. or those parties licensing the same to Muse Technologies,
Inc. and that LICENSEE possesses no ownership or claim to ownership of such
rights or title. Such Software and other materials proprietary to Muse
Technologies, Inc. or others shall be deemed to include, by way of example and
not in limitation, portions or software code, menu structures, database
schema, generic documentation text, interface components and design used by
Muse Technologies, Inc. to perform its services and to deliver Software as
required under Appendix A. LICENSEE shall, upon the reasonable request of Muse
Technologies, Inc., execute any documents necessary to transfer any ownership
in rights or title to such software or other materials to Muse Technologies,
Inc. Muse Technologies, Inc. hereby grants to LICENSEE the nonexclusive right
to use such software and materials proprietary to Muse Technologies, Inc. in
products limited to and incorporated within the Software specified in Appendix
A.
22
ATTACHMENT B, PAGE 3
4. PROPRIETARY, COPYRIGHT AND TRADE SECRET NOTICES
LICENSEE shall reproduce and include Muse Technologies, Inc.'s
proprietary, copyright and trade secret notices on all copies, in whole or in
part, in any form and in any medium including partial copies or modifications
of the Software made thereunder. Such notices shall be in substantially the
same form and location as they appear on the original form from which the
copies or modifications are made. LICENSEE shall not remove any proprietary,
copyright or trade secret notices from the Software.
5. CONFIDENTIAL INFORMATION AND NONDISCLOSURE
(a) During the term of this Agreement and for a period of five (5)
years thereafter, LICENSEE agrees to hold in confidence and not disclose to
others any information with respect to the Software or any portions or
modifications thereof with the following exceptions:
(1) information the LICENSEE can show by written
documentation was in its possession prior to receipt
of the Software; and
(2) any portion of the Software which becomes available
to the public through no fault of LICENSEE; and
(3) information which is disclosed to LICENSEE by a
third party who is not under obligation of
confidentiality to Muse Technologies, Inc. with
respect thereto; and
(4) information which was developed by or for LICENSEE
independent of the Software.
(b) LICENSEE may divulge the Software and portions and modifications
thereof to consultants of Licensee which may operate and work with such
Software solely for the benefit of LICENSEE; provided such consultant(s) are
in substantial compliance with the terms and conditions of this Agreement and
are under an obligation to LICENSEE not to disclose the Software consistent
with the terms and conditions of this Section or terms and conditions
substantially in conformity with this Section or Section 3 of the Technical
Services and Option Agreement between the parties. Muse Technologies, Inc.
shall be under no duty to correct portions of the Software added or modified
by persons or entities other than Muse Technologies, Inc., its employees or
agents.
(c) LICENSEE acknowledges that any publication or disclosure to third
parties of confidential information may cause immediate and irreparable harm
to Muse Technologies, Inc. LICENSEE shall take all reasonable steps to ensure
that no unauthorized person or entity shall
23
ATTACHMENT B, PAGE 4
have access to any portion of the Software and that no unauthorized copy in
whole or in part in any form shall be made, other than as provided herein.
6. TERM RENEWAL AND TERMINATION
(a) This license becomes effective upon execution by both parties and
upon receipt by Muse Technologies, Inc. of an executed copy of this Agreement
and shall remain in effect until
terminated by either party as provided for herein. Maintenance shall be for
one (1) year upon payment of the annual renewal fees.
(b) LICENSEE may terminate this Agreement by notifying Muse
Technologies, Inc. of its intent to terminate with at least thirty (30) days
prior written notice and LICENSEE agrees to return the Software and all copies
and modifications thereof to Muse Technologies, Inc. immediately after
termination.
(c) Muse Technologies, Inc. may terminate this Agreement if LICENSEE
fails to comply with any of the terms and conditions of the Agreement and such
failure is not cured within thirty (30) days of LICENSEE's receipt of written
notice from Muse Technologies, Inc. specifying the nature of such
failure.
(d) This Agreement shall automatically terminate upon any act of
bankruptcy by or against LICENSEE or upon any general assignment for the
benefit of creditors of LICENSEE or upon any attachment or execution of
judgment of process against LICENSEE or its assets or upon dissolution of the
LICENSEE, and in any such event Muse Technologies, Inc. shall have the right
to immediate possession of the Software and all copies and modifications
therefor
(e) Upon termination of this Agreement, LICENSEE shall cease all
further use of the Software, and, notwithstanding such termination, all
obligations under Sections titled "Retention of Title & Ownership of
Intellectual Property." "Indemnification," "Confidential Information and
Nondisclosure" and "Limitations and Remedies" shall survive and continue to
bind the parties after the date of termination.
(f) Upon termination of this Agreement, LICENSEE shall not be
entitled, nor shall Muse Technologies, Inc. be obligated to pay any refund to
LICENSEE sums paid by LICENSEE to Muse Technologies, Inc. prior to
termination, which sums have been earned by Muse Technologies, Inc. date of
termination. LICENSEE shall pay to Muse Technologies, Inc. all sums accrued
and owned by Muse Technologies, Inc. up to and including the date of
termination.
24
ATTACHMENT B, PAGE 5
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
7. LIMITED WARRANTY
THE SOFTWARE IS WARRANTED FOR A PERIOD OF [ * ] DAYS FROM SUCCESSFUL
INSTALLATION TO PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE DOCUMENTATION
PROVIDED WITH THE SOFTWARE AT THE TIME OF INSTALLATION AND IN SUBSTANTIAL
ACCORDANCE WITH THE RELEASE AND VERSIONS OF THE SOFTWARE PROVIDED TO LICENSEE
DURING THE TERM OF THIS AGREEMENT ARE WARRANTED TO BE SUBSTANTIALLY COMPATIBLE
WITH CUSTOMIZED SOFTWARE APPLICATIONS DEVELOPED BY MUSE TECHNOLOGIES, INC. FOR
THE LICENSEE. HOWEVER THAT DURING SUCH TERM, LICENSEE SUBSCRIBES TO MUSE
TECHNOLOGIES, INC.'S THEN CURRENT SOFTWARE UPGRADE AND SUPPORT SERVICES. TO
THE EXTENT ANY RESULTING NONCONFORMITY RESULTS IN SUCH CUSTOMIZED SOFTWARE
APPLICATIONS TO BE INOPERATIVE OR ANY DIMINISHED FUNCTIONS ARE NOT INCIDENTAL,
MUSE TECHNOLOGIES, INC. SHALL EXPEDITIOUSLY INITIATE AND DILIGENTLY PURSUE
CORRECTION THEREOF.
EXCEPT AS PROVIDED FOR HEREIN, THE SOFTWARE IS PROVIDED "AS IS,"
WITHOUT ADDITIONAL WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED,
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND
PERFORMANCE OF THE SOFTWARE IS WITH THE LICENSEE.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES,
SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES
YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE
TO STATE.
MUSE TECHNOLOGIES, INC. DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED
IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE
SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
(a) Muse Technologies, Inc. makes nor warranties, express or implied,
including warranties of merchantability and fitness for a particular purpose,
upon software, hardware of services manufactured or supplied by parties other
than Muse Technologies, Inc., the only warranties being those which are
otherwise provided by such other manufacturer or supplier of the software,
hardware or services, and LICENSEE will look only to the manufacturer or
supplier for the performance of any such warranties.
25
ATTACHMENT B, PAGE 6
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
(b) Muse Technologies, Inc. warrants to LICENSEE that the machine
readable media on which the Software if furnished is free from defects and
materials and workmanship under normal use and service for a period of [ * ]
days from the date hereof. During such period, Muse Technologies, Inc. will
replace any defective media on which the Software has been furnished.
(c) Unless expressly set forth in Section 10 of this Agreement, Muse
Technologies, Inc. shall be UNDER no duty whatsoever to provide revisions,
updates or maintenance duties concerning the Software.
8. LIMITATIONS AND REMEDIES
(a) Except as set forth in Section 7(a) above, and Sections 8(a)(1),
8(a)(2), 8(a)(3), and 10 below, Muse Technologies, Inc. shall not be held to
any liability with respect to any claim by LICENSEE or any third party on
account of or arising from the use of the Software. In no event shall Muse
Technologies, Inc. be liable for indirect, incidental, special or
consequential damages arising out of this Agreement or its existence,
furnishing, functioning, or the LICENSEE's use of the Software (even if Muse
Technologies, Inc. has been advised of the possibility of such damages).
(1) Muse Technologies, Inc. warrants that it will undertake
to investigate and attempt to correct any significant malfunction in the
Software reported by LICENSEE in accordance with the provisions contained in
Section (a), above.
(2) During such period, Muse Technologies, Inc. will replace
any defective media on which the Software has been furnished.
(3) Muse Technologies, Inc. will, in its sole discretion and
at its own expense, either procure for LICENSEE the right to continue using
the Software, replace it with a non-infringing product providing substantially
the same capabilities or remove it and refund an equitable portion of the
payment therefore.
(b) No action, regardless of form, arising out of this Agreement may
be brought by either party more than two (2) years after the cause of action
has arisen or in the case of an action for nonpayment, more than two (2) years
from the date the last payment was due.
9. INDEMNIFICATION
Muse Technologies, Inc. will indemnify and hold LICENSEE harmless
against the liabilities and costs, including reasonable attorneys' fees, of
defending any suit arising from
26
ATTACHMENT B, PAGE 7
alleged infringement by the Software of any United States patent, trade
secret, copyright or any other intellectual property right of a third party,
provided that Muse Technologies, Inc. is notified promptly in writing of such
claim of infringement and is given full authority, information and assistance
in settling or defending such claim. Muse Technologies, Inc. shall have no
liability whatsoever thereunder with respect to any claims settled by LICENSEE
without Muse Technologies, Inc.'s prior written consent.
The foregoing states the entire liability of Muse Technologies, Inc.
with respect to infringement of third party intellectual property right by the
Software or any part thereof or by its operation.
10. MAINTENANCE
(a) Muse Technologies, Inc. shall provide the maintenance requested
by LICENSEE for the fees specified and set forth in MTI Commercial Price List.
Annual maintenance charges shall be per the MTI commercial price listing per
year, at Licensee's option, for the duration of this license. In no case shall
such maintenance charges exceed the normal fees charged other licensees for
the number of copies licensed.
(b) Muse Technologies, Inc. shall provide reasonable telephone
support to LICENSEE between the hours of 9 AM to 6 PM, EST, except for
national holidays and such reasonable local holidays (up to 6 per year) as
LICENSEE may have been given prior written notice.
(c) In the event the Software evidences a malfunction critically
affecting the operation thereof, Muse Technologies, Inc. shall begin and
diligently pursue correction of such malfunction within one (1) working day of
notification by LICENSEE or discovery by Muse Technologies, Inc.. In the event
correction is not reasonably possible within six (6) working days, Muse
Technologies, Inc. shall provide a "work around" within such period and then
shall continue to diligently pursue proper correction thereof.
In the event such malfunction is not critical to the operation of the
Software, correction of such malfunction shall be provided with normal updates
to the Software which shall be provided LICENSEE not less than once each six
(6) months.
All corrections, modification and updates shall have proper
documentation provided with the new versions of the Software, as such, are
required for the proper operation of the Software. All other documentation
corrections shall be provided LICENSEE within thirty (30) days of forwarding
the Software.
27
ATTACHMENT B, PAGE 8
11. TAXES
(a) The payment required under this License Agreement is exclusive of
taxes, and LICENSEE agrees to bear and be responsible for payment of all
sales, use, rental receipt, personal property, or any other taxes which may be
levied or assessed against LICENSEE, including any licensing, sales taxes or
equivalent taxes levied by state authorities upon sales of goods or services
at point of sale or delivery. LICENSEE shall not be responsible for any taxes
imposed on Muse Technologies, Inc.'s net worth, corporate gross receipts
(except for sales taxes or equivalent taxes as set forth above) or upon any
franchise operations.
(b) Notwithstanding the above, LICENSEE is not required to reimburse
Muse Technologies, Inc. for net income tax liability of Muse Technologies,
Inc. attributable to the License payment arising from this Agreement.
12. NON-COMPETITION
LICENSEE expressly acknowledges that Muse Technologies, Inc. may at
its sole option, provide other entities or persons services licenses similar,
greater or lesser than those services and licenses granted to LICENSEE by this
Agreement. LICENSEE further acknowledges that Muse Technologies, Inc. may,
during the term of this Agreement, perform work for itself or others and that
such work by Muse Technologies, Inc., in and of itself, shall not constitute a
breach of Muse Technologies, Inc.'s duties under this Agreement. LICENSEE
agrees that such work performed by Muse Technologies, Inc. for others may
include software and other materials proprietary to Muse Technologies, Inc.
and used by Muse Technologies, Inc. to create the services and Software
delivered by Muse Technologies, Inc. to LICENSEE under this Agreement. Such
Software and other materials proprietary to Muse Technologies, Inc. or others
shall be deemed to include, by way of example and not in limitation, portions
of software code, menu structures, database schema, generic documentation
text, interface components and design used by Muse Technologies, Inc.
Additional MISCELLANEOUS terms:
(a) Amendments. No amendment to this Agreement shall be effective and
binding until it is reduced to writing and signed by duly authorized
representatives of both parties. Unless expressly agreed to in writing by Muse
Technologies, Inc., and subsequent purchase order, letter of intent, invoice
or other Agreement or other communication--whether oral or written--issued by
one party to the other shall not be binding on the receiving party to the
extent that such terms and conditions are additional to or inconsistent with
those contained in this Agreement.
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ATTACHMENT B, PAGE 9
(b) Consent to Breach Not Waiver. No term or provision of this
Agreement shall be deemed waived and no breach excused, unless such waiver or
consent is in writing and signed by the party claimed to have waived or
consented. Any consent by any party to, or waiver of, a breach by the other,
whether express or implied, shall not constitute a consent to, waiver of, or
excuse for any other different or subsequent breach.
(c) Addresses for Notice and Payments. Any notice or payments from
one party to the other party required under this Agreement shall be deemed
made on the date of receipt as sent by certified mail, return receipt
requested (Notice), or as sent first-class, postage prepaid (Payments) and
addressed to the locations and person specified below:
(d) Execution by Counterparts. This Agreement shall become effective
and binding upon the parties when executed by both parties. This Agreement may
be executed in two counterparts, both of which for all purposes shall
constitute one Agreement, effective upon the latest date of signature of the
counterparts, and shall be binding on all parties notwithstanding that all
parties may not have signed the same counterpart.
13. ASSIGNMENT
This Agreement, the License or the Software to which they apply may
not be assigned, delegated, sub-licensed, pledged or otherwise transferred by
LICENSEE to any party without prior written consent from Muse Technologies,
Inc.
14. MISCELLANEOUS
(a) Should any portion of this Agreement be found invalid under any
applicable statute or rule of law, this Agreement shall be deemed to remain in
full force and effect with the omission of such portion.
(b) This Agreement shall be governed by and interpreted in accordance
with the laws of the State of New Mexico.
(c) This Agreement constitutes the entire agreement between the
parties hereto which supersedes all proposals, oral or written, and all other
communications between the parties which relates to the subject manner of this
Agreement.
29
ATTACHMENT B, PAGE 10
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date of the last signature hereto.
Muse Technologies, Inc.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title President
Date 6/19/98
Continuum Resources International, ASA
By /s/ ▇.▇. ▇▇▇▇
Name ▇.▇. ▇▇▇▇
Title CEO
Date 6/19/98
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Software Location Continuum Resources, ASA
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
No. of Seats: ____
Seat Location 1:
----------------------
----------------------
----------------------
----------------------
----------------------
Seat Location 2:
----------------------
----------------------
----------------------
----------------------
----------------------
Seat Location 3:
----------------------
----------------------
----------------------
----------------------
----------------------
30
ATTACHMENT B, PAGE 11
Seat Location 4:
----------------------
----------------------
----------------------
----------------------
----------------------
Seat Location 5:
----------------------
----------------------
----------------------
----------------------
----------------------
31
ATTACHMENT B, PAGE 12
MUSE TECHNOLOGIES, INC.
S-VAR TRANSFER OF SOFTWARE LICENSE AGREEMENT
TO
End-User
ACKNOWLEDGMENT: S-VAR certifies and End-User confirms compliance to terms and
conditions of the MTI End-User Software License Agreement by signature hereon.
Continuum Resources, ASA Company (End-User)
By: By:
------------------------------- ------------------------------
Name: Name:
------------------------------- ------------------------------
Title: Title:
------------------------------- ------------------------------
Date: Date:
------------------------------- ------------------------------
Address for Notices: Address for Notices:
------------------------------- ------------------------------
------------------------------- ------------------------------
------------------------------- ------------------------------
Phone: Phone:
------------------------------- ------------------------------
FAX: FAX:
------------------------------- ------------------------------
32
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
ATTACHMENT C
(Volume Commitment and Discount Schedules)
o Normal VAR Volume Sales Commitment: (due to MTI after discount to VAR)
Tier U.S. Dollar Commitment:
1 [ * ]
2 [ * ]
3 [ * ]
4 [ * ]
o Normal VAR Reseller Discount Schedule:
Foundation Renaissance
Discount Foundation Renaissance Development Development
Tier RT License RT License Licence Licence Continuum
1 [ * ] [ * ] [ * ] [ * ] [ * ]
2 [ * ] [ * ] [ * ] [ * ] [ * ]
3 [ * ] [ * ] [ * ] [ * ] [ * ]
4 [ * ] [ * ] [ * ] [ * ] [ * ]
o Master-VAR Discount Schedule:
MTI allows [ * ] discount to Master VARs on all items purchased from
MTI with exception to maintenance, support services, consulting services, and
training.
o S-VAR Discount Schedule:
MTI allows [ * ] discount on all items purchased from MTI with
exception to maintenance, support services, consulting services, and training.
33
ATTACHMENT C, (Exhibit #1)
S-VAR COMMITMENT SALES SCHEDULE
o Continuum Resources ASA Commitment for S-VAR Status:
I. $5,000,000.00 "up-front" payment to MTI to purchase exclusive
representation of MTI products to the global petroleum Industry as
per terms of this agreement.
II Commitment to produce at least the following revenue stream for
sale of MTI products:
A. For Initial Term of agreement:
$12,000,000 commitment volume of revenue due Must Technologies, Inc.
over the three (3) year term of the contract.
as per following table:
Year #1 Year #2 Year #3
Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4
$.5M $.5M $.5M $.5M $1M $1M $1M $1M $1M $1M $2M $2M
B. For Optional Renewal Terms of agreement:
$12,000,000 committed volume of revenue due Muse Technologies, Inc.
over the next three (3) year term of the contract.
as per following table:
Year #1 Year #2 Year #3
Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4
$1M $1M $1M $1M $1M $1M $1M $1M $1M $1M $1M $1M
34
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
III. S-VAR Responsibilities and entitlements:
1. Sales revenue as per terms of this agreement for all petroleum
industry end users sold by either MTI or S-VAR within the Global
Petroleum Industry.
2. Distribution rights and revenue stream for all additional Value Added
Resellers within the petroleum industry brought into Master VAR or
normal VAR status by either Continuum Resources, ASA or Muse.
3. Straight [ * ] discount on all products listed in Muse Commercial
Price List for items purchased from MTI for shipment to S-VAR
customers. (excluding installations, training, support services and
documentation.)
4. MTI will hire a support team consisting of (4) persons, to be
dedicated to the success of the S-VAR's sales efforts. (Refer to
Attachment E, paragraph 10.)
5. S-VAR is empowered to initiate and participate in negotiations, upon
MTI written approval and within the assigned Trading Area, between
MTI and 3rd parties (who are brought to MTI by S-VAR), for other MTI
VAR agreements. If "up-front" money is paid to MTI for any of these
agreements, S-VAR is entitled to share in the "up-front" revenue on a
[ * ]basis with MTI. ("Up-front" money is required from any reseller
partner who purchases a territory with exclusivity within the
designated assigned Trading Area for reselling MTI products.)
S-VAR Signature and Agreement to Commitment:
Name: /s/ ▇.▇.▇▇▇▇
----------------------------
Title: CEO
----------------------------
35
ATTACHMENT D
(S-VAR Application Software and Hardware Product(s))
S-VAR Software Applications:
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
S-VAR Hardware Systems:
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
36
ATTACHMENT E
Contract Modifications
1. MTI grants to S-VAR the right of integration of S-VAR's application with
MTI's licensed products.
2. MTI will allow S-VAR to initiate and participate in negotiations with other
potential VAR candidates outside the S-VAR's "trading area", if request is
made in writing and approved by MTI, however, MTI reserves final right of
approval.
3. MTI agrees to allow S-VAR to integrate S-VAR applications with MTI licensed
products and resell the derivative product or service within the "trading
area" at a price to be determined solely by S-VAR, assuming a royalty fee has
been mutually negotiated by MTI and S-VAR.
4. Confidential Information" means either parties information and/or materials
containing information which concern, without limitation, MTI or S-VAR's
software secrets, business plans, customers, technology or products and are
marked proprietary and/or confidential in nature.
5. "International Sales" means sales outside of the territory of the United
States.
6. For volume commitment purposes, sales will be deemed "booked" in the
quarter in which a firm order is placed by S-VAR and accepted by MTI.
7. Add to paragraph 1.2 Trading Area:
"All petroleum or oil and gas companies and their consultants, geophysical,
geological, reservoir, facilities, pipeline, construction and field and general
contractors and suppliers of oil and gas related technologies, both onshore and
offshore in all locations worldwide with the exception of those areas restricted
by US Government Export Regulations and those applications defined below."
8. Add to paragraph 1.5 Trading Area Restrictions:
"Nothing in this trading area restriction shall be construed as limiting
S-VAR's ability to sell any form of database product or other product relating
to financial, economic, or other cost effective considerations of oil and gas
operations as an extension of developments of other allowed oil and gas
applications."
9. If MTI sells directly to the petroleum market, bypassing S-VAR, MTI will
allow the value of such sale to apply toward the Volume Commitment" of S-VAR.
37
ATTACHMENT E, PAGE 2
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
10. MTI will indemnify and hold S-VAR harmless against the liabilities and
costs, including reasonable attorney's fees, for defending any suit arising
out of alleged infringement by MTI's licensed product(s) of any patent, trade
secret, copyright or any other intellectual property right of a third party,
provided that MTI is notified promptly in writing of such claim of
infringement and is given full authority, information and assistance in
settling or defending such claim. MTI shall have no liability whatsoever
thereunder with respect to any claims settled by S-VAR without MTI's prior
written permission.
11. MTI will hire a support team consisting of (4) persons to be dedicated to
the success of the S-VAR's sales and development efforts. The support staff
will be available for direction by S-VAR. Where products/applications are
developed jointly and where the MTI staffs role is the development of
enhancements, additions to the MTI environment there will be no charge for
services however MTI will have the right to include such development within
the MTI product range where development is done in which S-VAR wishes to
retain 100% of the rights to the application than S-VAR will pay for the MTI
staff services required to integrate the application. Other product
development will be handled on a cased by case basis with agreed royalties
occurring to S-VAR and MTI as appropriate.
12. The revenue stream detailed in Attachment C, Exhibit #1, is based on
current MTI projections of both price and introduction of new products and
upgrades. [ * ]
[ * ]
[ * ]
13. [ * ]
[ * ]
[ * ]
14. MTI agrees to allow under separate agreement, and consistent with the
standard MTI Master-VAR program, a Master-VAR Agreement to exist with
Continuum Resources International, ASA, or its' designee, which will allow
marketing the MTI product family within the Scandinavian Countries as follows
with no restrictions placed upon the vertical markets within the referenced
Countries, subject to MTI approval of designee, and subject to the minimal
incremental commitment of [ * ]
- ▇▇▇▇▇▇ - ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇ - ▇▇▇▇▇▇▇
▇▇. MTI agrees to allow under separate agreement, and consistent with the
standard MTI Master-VAR program, a Master-VAR agreement with Continuum
Resources International , ASA or its' designee, to market the MTI family of
products to the Medical Industry in the United
38
ATTACHMENT E, PAGE 3
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
Kingdom, subject to MTI approval of designee, and subject to the minimal
incremental commitment of [ * ]
16. MTI will pay up to [ * ] of booth space rental at [ * ] Petroleum Industry
Conferences world-wide subject to actual costs of booth space rental not to
exceed [ * ]. At these conferences, MTI will provide [ * ]
17. MTI will honor all terms of this agreement subject to complete funding of
the S-VAR Agreement having been completed prior to September 30, 1998;. and
with payment being completed according to the following schedule:
[ * ]
[ * ]
39
