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Exhibit 10.21
PROGRAM PRODUCT LICENSE AGREEMENT
Candle Corporation
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
(000) 000-0000
(VENDOR)
Agrees with
UNITED AIRLINES, DENVER TECHNOLOGICAL CENTER
0000 Xxxxx Xxxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
(CUSTOMER)
Date May 1, 1981
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No. C02-0307
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1. LICENSE
Vendor grants and Customer accepts on the terms and conditions
contained in this Agreement a non-assignable, non-transferable, non-exclusive
license to use the proprietary computer programs and related materials
("Products") referred to in Schedule A at the specified Customer locations.
2. TITLE
Vendor warrants and represents that it is the owner of the
Products. Title and full ownership rights to the Products shall remain the sole
property of the Vendor. Customer acknowledges, understands and agrees that the
Products constitute valuable proprietary assets and trade secrets of Vendor
embodying substantial creative efforts and confidential information.
3. SCOPE OF USE, TERMS AND FEES
Each Product may be used by the Customer only for Customer's
own use at the Customer location designated in Schedule A on the CPU for which
the Product is initially intended to be used. Customer may not change the
location of the use of any Product without the Vendor's prior written consent
(which will not be unreasonably withheld). Customer may not use any Product or
copy thereof on any CPU other than the CPU for which use of the Product was
initially intended without the prior written consent of Vendor (which will not
be unreasonably withheld) except, if the workload on that CPU is transferred to
a new CPU either temporarily as back-up or permanently, Customer may transfer
the use of that Product from the original CPU to the new CPU during the time
the workload is transferred to the new CPU; provided, however, that upon
Vendor's request, Customer shall inform Vendor in writing of the serial number
and location of the CPU upon which each Product is then being used and
thereafter shall inform Vendor in writing of the serial number and location of
any new CPU to which the use of any Product is permanently transferred. For use
of a Product on more than one CPU at the same or different locations, one copy
of the Products must be licensed for each additional CPU under the appropriate
additional copy reduced rate at the then current prices quoted by Vendor. The
term "use" in this Agreement shall mean (i) copying any portion of the
proprietary computer programs into the CPU for execution of the programs'
instructions and (ii) utilizing related materials and generated output of the
Products as contemplated by this Agreement.
4. LICENSE FEES
The license fee and the form and terms of payment for the
Products at the specified Customer location are set forth in Schedule A. The
license fee does not include personnel training, Product installation, on-site
support, fees for Product options, or alterations or enhancements to the
Products except as required to satisfy the warranty contained herein. The
license fees are payable on their specified payment dates.
5. TYPE OF LICENSE
Products may be licensed hereunder pursuant to either of the
following types of licenses:
A) Permanent License - Products are available on a permanent license basis for
a one-time fee as specified in Schedule A. The duration of a permanent license
to use the Products is perpetual.
B) Annual License - Products are available on a renewable yearly basis for the
annual fee designated in Schedule A. The usage period of the license is
specified in Schedule A.
6. RESPONSIBILITY OF CUSTOMER
Customer shall be exclusively responsible for the supervision,
management and control of its use of the Products, including but not limited to:
(a) assuming proper machine configuration, Products' installation, audit
controls and operating methods; (b) establishing adequate back-up plans; and
(c) Implementing sufficient procedures and check-points to satisfy its
requirements for restart and recovery in the event of a malfunction.
7. NON-DISCLOSURE AND NON-REPRODUCTION OF PROPRIETARY INFORMATION
A. Customer expressly acknowledges, understands, and agrees
that the Products contain confidential information and other data proprietary
to Vendor. Customer agrees not to allow any such confidential information or
data to be disclosed or reproduced except for use in accordance with Paragraph
3 or for archival or back-up purposes as provided in subparagraph D below.
B. Customer, its agents, servants, contractors, and employees,
agree to maintain all information and data contained in the Products, including
proprietary computer programs, documentation, generated output, modifications
and conversions, in strict confidence for Vendor. Customer agrees to take all
appropriate steps to insure that unauthorized persons having access to the
Products shall refrain from any unauthorized reproduction or disclosure of such
information and data, and agrees to restrict access to and display of such
information and data to such Customer personnel who (i) have a need to have
such access or see such display to enable Customer to fully utilize the
Products as contemplated by this Agreement and (ii) who have been advised
of and have agreed to treat the Products and such information and data in
accordance with this Paragraph 7.
C. Customer acknowledges that in the event of an unauthorized
reproduction or disclosure of any confidential information or data contained in
the Products. Vendor may not have an adequate remedy at law, and, therefore,
injunctive or other equitable relief may be sought to restrain such
reproduction or disclosure, threatened or actual.
D. Customer may transport or transmit a copy or the original of
any Products to another CPU for back-up use when required by CPU malfunction,
provided (i) the copy or original is destroyed or returned to the original
location when the malfunction is corrected and (ii) Customer abides by all
provisions of this Paragraph 7 Customer agrees to reproduce and include
Vendor's proprietary and copyright notice on any copies, in whole or in part,
in any form, of the Products.
E. The provisions of this Paragraph 7 shall survive the
termination of this Agreement.
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8. PATENT AND COPYRIGHT INDEMNIFICATION
Vendor warrants that the Products do not infringe upon or violate
any patent, copyright, trade secret, or any other proprietary right of any third
party. Vendor will defend at its expense any action brought against Customer to
the extent that it is based on a claim that licensed Products, used within the
scope of the license hereunder, infringe a copyright in the United States or a
United States patent, and subject to the limitation of liability stated herein.
Vendor will pay any costs and damages finally awarded against the Customer in
such action which are attributable to such claim, provided that Customer
notifies Vendor promptly in writing of the claim, allows Vendor to fully
participate in the defense of such claim and does not agree to any settlement
of such claim without Vendor's consent. Should the licensed Products become, or
in Vendor's opinion be likely to become, the subject of a claim of infringement
of a copyright or a patent, Vendor may procure for the Customer the right to
continue using the licensed Products, may replace or modify them to make them
non-infringing, or may terminate the license of them. Vendor shall have no
liability for any claim of copyright or patent infringement based on (i) use of
other than the latest unmodified release of the licensed Products from Vendor
if such infringement would have been avoided by the use of the latest release
of the licensed Products (of which Customer had notice and an opportunity to
use) or (ii) use or combination of the licensed Products with non-Vendor
programs or data if such infringement would have been avoided by the use or
combination of the licensed Products with other, or without, such programs or
data. The foregoing states the entire liability of Vendor with respect to
infringement of any copyrights or patents by the licensed Products or any parts
thereof and Vendor shall have no liability with respect to any other
proprietary rights.
9. LIABILITY
Except as specified in this Paragraph 9 or elsewhere in this
Agreement, Vendor shall not be liable for any loss or damage that may arise in
connection with the furnishing, performance or use by Customer of Products,
including, without limitation, any indirect, special, incidental or
consequential damages. The remedies of Customer set forth under Paragraph 9
hereof shall be the sole and exclusive remedies of Customer for any breach of
any obligations of Vendor hereunder or otherwise and (except as otherwise
provided in Paragraph 8 hereof) in no event shall Customer be entitled to any
monetary damages against Vendor in excess of the amounts paid to Vendor by
Customer hereunder. No action, regardless of form, arising out of the
transactions under this Agreement may be brought by either party more than two
years after the cause of action has accrued, except that an action for
non-payment may be brought within two years after the date of last payment.
10. WARRANTY
Vendor warrants that at the time of delivery of the original
Products supplied to Customer and for a period of one (1) year thereafter, the
original Products will be in substantial accordance with specifications in the
applicable technical reference manual. The extent of Vendor's liability under
this warranty shall be limited to the correction or replacement as soon as
practicable of any substantial deviation in the original Products (or any
subsequent releases of Products) from the specifications in the applicable
technical reference manual, which Vendor determines to be necessary, at
Vendor's own cost and expense, provided written notice of such substantial
deviations is received by Vendor during the warranty period. This warranty shall
not apply if: (i) the Products (or parts thereof) shall not be used in
accordance with Vendor's instructions; (ii) the Products shall have been
altered, modified or converted by Customer without the written approval of
Vendor; (iii) any of Customer's equipment shall malfunction; or (iv) any other
cause within the control of Customer shall result in any part of the Products
becoming inoperative or substantially deviating from the specifications in the
applicable technical reference manual. THE FOREGOING WARRANTY IS IN LIEU OF
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. MAINTENANCE AND ENHANCEMENT PLAN
A. A maintenance and enhancement plan (hereinafter referred to as
the "Plan") is available to Customer as specified in Xxxxxxxxxx 00X, 00X, 00X.
The Plan includes the following provisions:
(1) Code Corrections - To supply code corrections as required to correct
substantial deviations of a Product from specifications of the current
applicable technical reference manual. However, if Customer has modified the
Product, Vendor at its discretion may require Customer to demonstrate that any
deviation of the Product was not caused by Customer's modification.
(2) Product Updates - To supply improvements, extensions, and other changes to
the Products which Vendor, at its discretion, deems to be logical improvements
or extensions to the original Products supplied to the Customer.
(3) Technical Support - To supply a reasonable amount of consulting assistance
in the event of difficulties in the use of the Products or in the
interpretation of results of Product use, to the extent of mail and telephone
contact. If on-site assistance is required and the problem is the failure of
the Product(s) to perform to specifications, no charge will be made, if the
problem is due to other causes, Vendor's standard consulting rates for such
services will be applicable.
B. If Customer has a permanent license, Customer is subscribed in
the Plan at no cost for a period of one (1) year following the delivery date of
the Products. On each anniversary date of delivery thereafter, Customer shall be
invoiced the fee for the Plan for the following year. If Customer is under an
annual license, Customer is automatically subscribed in the Plan at no
additional cost for the duration of the annual license agreement.
C. The initial fee for the Plan for each copy of Products shall
be as designated in Schedule A. The fee may be changed annually upon thirty (30)
days prior written notice to Customer. Customers with copies at additional
locations and/or with optional features having different anniversary dates than
the first installation will be invoiced for the Plan for all installations and
options on the first anniversary date of the first installation and there shall
be included in such invoice a prorated portion of the fee for the additional
location copies and/or optional features ordered after the first installation.
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cancels his subscription in the Plan may at a later time renew his subscription
and receive the benefits of the Plan upon payment of the annual fee for the
Plan in effect at the time of renewal plus a reinstatement fee equal to (i) the
difference between the permanent license fee of Products specified in Schedule A
and the permanent license fee for such Products prevailing at the time of
subscription renewal, or (ii) Five Hundred Dollars ($500), whichever is greater.
12. LIQUIDATION OF VENDOR
In the event that Vendor is liquidated, dissolved or ceases to
carry on business on a regular basis, and such business or the part thereof
pertaining to Customer and the obligations connected therewith are not assumed
by any successor or assignee of Vendor, a current copy of the source program
statements and documentation of the Products being utilized by Customer will be
made available to Customer and Customer will have a non-exclusive, perpetual,
paid-up license to the source program statements and documentation. It is
understood and agreed that such source code statements and documentation are to
be utilized solely for the internal support and maintenance of the Products and
are not to be disclosed to any person or entity except in the furtherance of
such support and maintenance.
13. DELAYS
The Vendor shall not be liable for delays in the performance of
its obligations hereunder due to causes beyond its reasonable control including
but not limited to Acts of God, strikes or inability to obtain labor or
materials.
14. NOTIFICATION
All notices which any party may be required or desire to give
to any other party shall be in writing and shall be given by personal service,
registered mail, or certified mail to the other party at his respective address
set forth at the beginning of this Agreement. Mailed notices shall be deemed to
be received on the fifth California business day following the date of
mailing.
15. SUCCESSION
This Agreement, together with all schedules or modifications
now and hereafter made a part hereof shall be binding on the respective parties
and their respective heirs, executors, administrators, legal representatives,
successors and assigns.
16. GOVERNING LAW
This Agreement shall be governed by the laws of the State of
California without giving effect to the conflict of laws provisions thereof.
This Agreement constitutes the entire agreement and understanding between the
parties relating to the license and use of the Products, and all other prior
agreements, arrangements or understandings, oral or written, are merged into
and superseded by the terms of this Agreement. Title and Paragraph headings are
for convenient reference and are not a part of this Agreement.
17. INVALID PROVISIONS
No waiver of any breach of this Agreement shall constitute a
waiver of any other breach of the same or other provisions of this Agreement
and no waiver shall be effective unless made in writing. In the event that any
provisions herein shall be illegal or unenforceable, such provision shall be
covered and the entire Agreement shall not fail but the balance of the Agreement
shall continue in full force and effect.
18. TERM
This Agreement shall commence on the date of execution hereof
and it shall remain in force until all Products designated in Schedule A have
completed their specified usage periods.
19. TERMINATION
Upon completion of a specified usage period for Products
designated in Schedule A, Customer has the option to (i) agree to continue use
of the Products designated on Schedule A for an additional usage period at the
then current price of a license of the Products; or (ii) terminate usage of the
Products designated on Schedule A, and, within ten (10) days, return to Vendor
all Products supplied to Customer and destroy or delete all copies of the
Products including but not limited to any Vendor supplied information, load
modules, back-up archival information, data sets and documentation. Customer
will verify this action in writing to Vendor. Upon termination of this
Agreement or the license of any Product in any other fashion, the provisions of
option (ii) above shall apply.
AGREED AND ACCEPTED: AGREED AND ACCEPTED:
SIGNATURE: XXXX X. XXXXXX SIGNATURE: /s/
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NAME: Xxxx Xxxxxx NAME:
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TITLE: Vice President - Sales TITLE:
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DATE: May 14, 1981 DATE:
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(VENDOR) (CUSTOMER)
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By: ______________________________ By:______________________________
XXXX X. XXXXXXXXX Xxxxxx XxxXxxxxx
Name: ______________________________ Name:____________________________
Purchasing Agent Manager, Contract Admin.
Title: ______________________________ Title:___________________________
12/17/90 December 19, 1990
Date: ______________________________ Date:____________________________
Purchase Order#:________________________________
(For invoicing only) Contract Number 7
ADDENDUM
This Addendum is attached to and made a part of Program Product License
Agreement No. C02-0307 (44115) ("the Agreement") commencing May 1, 1981 by and
between Candle Corporation ("Candle") and united Air Lines, Inc., Denver
Technological Center ("Licensee").
1. Candle acknowledges that Licensee has formed Covia partnership
("Covia") and has assigned Program product License agreement No.
C02-0307 (44115), with the exception of Schedule No. 4, the Permanent
License for OMEGAMON/MVS/XA commencing July 14, 1986, to Covia and the
new Licensee name is Covia partnership.
2. Consent is hereby given by Candle to transfer and assign the Agreement
and all Schedules (except Schedule No. 4) referencing the Agreement to
Covia effective January 2, 1988.
3. Covia hereby accepts the transfer and assignment of the Agreement and
all such Schedules referencing the Agreement and agrees to be bound by
all obligations and duties set forth in the Agreement and all such
Schedules referencing the Agreement.
4. Licensee shall continue to be bound by its obligations as set forth in
the Agreement.
5. There is no special or one-time fee for the transfer and assignment of
the Agreement.
6. Consent is hereby given by Candle to transfer said Schedule No. 4 to
united air Lines, Inc. ("United") Program Product License agreement No.
C02-0028 (37702) effective January 2, 1988.
7. United hereby accepts the transfer of said Schedule No. 4 to Agreement
No. C02-0028 (37702).
Agreed and Accepted: Agreed and Accepted:
CANDLE CORPORATION UNITED AIR LINES, INC.
By:_____________________________ By:__________________________________
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Agreed and Accepted: Agreed and Accepted:
Name: Xxxx Xxxxxxxxx Name: XXXXXX X. XXXXXX
Title: Manager, Contracts Title: Manager of Purchasing - Electronics
Date: 05-24-90 Date: 5/15/90
Agreed and Accepted:
COVIA PARTNERSHIP
By:____________________________
Name: XXXXXX X. XXXXXXXXX
Title: Vice President, Finance/Admin - CFO
Date: May 15, 1990
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ADDENDUM
This Addendum is attached to and made a part of Program Product License
Agreement No. C02-0307 (44115) ("the Agreement") commencing May 1, 1981 by and
between Candle Corporation ("Candle") and United Air Lines, Inc., Denver
Technological Center ("Licensee").
1. Candle acknowledges that Licensee has formed Covia Partnership ("Covia") and
has assigned Program Product License Agreement No. C02-0307 (44115), with
the exception of Schedule No. 4, the Permanent License for OMEGAMON/MVS/XA
commencing July 14, 1986, to Covia and the new Licensee name is Covia
Partnership.
2. Consent is hereby given by Candle to transfer and assign the Agreement and
all Schedules (except Schedule No. 4) referencing the Agreement to Covia
effective January 2, 1988.
3. Covia hereby accepts the transfer and assignment of the Agreement and all
such Schedules referencing the Agreement and agrees to be bound by all
obligations and duties set forth in the Agreement and all such Schedules
referencing the Agreement.
4. Licensee shall continue to be bound by its obligations as set forth in the
Agreement.
5. There is no special or one-time fee for the transfer and assignment of the
Agreement.
6. Consent is hereby given by Candle to transfer said Schedule No. 4 to United
Air Lines, Inc. ("United") Program Product License Agreement No. C02-0028
(37702) effective January 2, 1988.
7. United hereby accepts the transfer of said Schedule No. 4 to Agreement No.
C02-0028 (37702).
Agreed and Accepted: Agreed and Accepted:
CANDLE CORPORATION UNITED AIR LINES, INC.
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxx Xxxxxxxxx Name: Xxxxxx X. Xxxxxx
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Title: Manager, Contracts Title: Manager of Purchasing -
--------------------- Electronics
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Date: 05-24-90 Date: 05/15/90
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Agreed and Accepted:
COVIA PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: XXXXXX X. XXXXXXXXX
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Title: Vice President Finance/Administration
Chief Financial Officer
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Date: May 15, 1990
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