EXHIBIT 10.7
LICENSE AGREEMENT
THIS EXCLUSIVE LICENSE AGREEMENT (the "Agreement") is made as of June
1, 2004, 2004 (the "Effective Date") between QUALITY DESIGN SYSTEMS, INC., an
Iowa corporation with its principal office at 000 Xxxx Xxxxxxxxx Xxxxx,
Xxxxxxxx, Xxxxx 00000 ("QDS"), and ASA TIRE SYSTEMS, INC., a Delaware
corporation with its principal office at 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000
("ASA").
BACKGROUND:
QDS develops, licenses, markets, and services software and other
related products, including its proprietary TireMaster(R) software. ASA
distributes and markets software products, and related services to the tire
industry. ASA desires to market QDS' products and services.
Therefore, in consideration of the mutual covenants set forth in this
Agreement, the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.01 DEFINITIONS. In this Agreement, including the attached Exhibits,
unless specifically indicated otherwise, the following terms have the meanings
set forth in this Section 1.01:
(a) "Account Management" means the marketing and sale of
additional QDS Products and Services to a QDS Customer.
(b) "ASA Customer(s)" means any customer(s) who submits an
order for QDS Products and Services (defined later in this Section) and
who, prior to the Effective Date of this Agreement, is not party to an
end user license agreement or another agreement with QDS for the same
QDS Product or Service for which the current order is being submitted.
(c) "ASA Share" means the proportion of Revenue allocated to
ASA with respect to sale or licensing of a QDS Product or Service, as
indicated on Exhibit B.
(d) "Confidential Information" has the meaning provided in
Section 8.01 of this Agreement.
(e) "Documentation" means the written materials supplied with
QDS Products and Services.
(f) "Effective Date" means the date specified in the opening
paragraph of this Agreement.
(g) "Feedback" means any of ASA's suggestions, comments, other
forms of review, or solicited or unsolicited suggestions and ideas
regarding QDS Products and Services (as defined later in this Section).
(h) "Hardware" means computers and peripheral equipment.
(i) "Intellectual Property Rights" means all worldwide
intellectual property arising under statutory or common law, and
whether or not perfected, including without limitation, all: (i)
developments, inventions, modifications, derivative works, patches,
bridges, etc.; (ii) patents, patent applications, and potential patent
applications; (iii) rights associated with works of authorship,
including copyrights, copyright applications, and copyright
registrations; (iv) rights associated with trademarks, trademark
applications, and trademark registrations; (v) rights relating to the
protection of trade secrets and confidential information; (vi) any
other proprietary rights relating to intangible property (e.g., trade
dress or service xxxx rights); and (vii) divisions, continuations,
renewals, reissues, and extensions of the foregoing (as and to the
extent applicable) now existing, hereafter filed, issued or acquired.
(j) "Marks" means trademarks, trade names, trade designations,
or other identifiers of source, whether or not the right to such an
identifier of source arises under statutory or common law.
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(k) "QDS Customer" means any person or entity that is a party
to any software end user license agreement or other agreement with QDS
prior to the Effective Date of this Agreement.
(l) "QDS Products and Services" means the products and
services offered by QDS for distribution, licensing, or sale listed in
the attached Exhibit A.
(m) "QDS Share" means the proportion of Revenue allocated to
QDS with respect to sale or licensing of a QDS Product or Service, as
indicated on Exhibit B.
(n) "Revenues" means the total of all amounts received by ASA
with respect to sale or licensing of QDS Products and Services to ASA
Customers.
(o) "Territory" means the entire world.
1.02 EXHIBITS. The following exhibits are attached to and form part of this
Agreement:
Exhibit A: QDS Products and Services
Exhibit B: Allocation of Revenues
ARTICLE 2
License AND USE Rights
2.01 LICENSE. QDS hereby grants to ASA, subject to the terms and
conditions of this Agreement, an exclusive (including with respect to QDS) and
nontransferable right to use (for demonstration or application service provider
purposes), market, sell and distribute QDS Products and Services directly to ASA
Customers in the Territory, including the right to grant end-user sublicenses
and to offer application service provider services to ASA Customers. All
end-user sublicenses of the TireMaster(R) software and other software included
in the QDS Products and Services sold or licensed to ASA Customers will be
issued with ASA as licensor in a form reasonably approved by QDS.
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2.02 Reservation of Rights. ASA hereby acknowledges that full ownership
and title to the QDS Products and Services belongs to QDS, subject to the rights
of ASA and the ASA Customers under this Agreement and any end-user sublicenses
granted hereunder.
2.03 Demonstration and Training Use. QDS hereby grants to ASA rights to
use demonstration copies of the QDS Products and Services with potential
customers for demonstration and marketing purposes, and with ASA's employees for
training and marketing purposes.
2.04 PRODUCT AND SERVICE REPRESENTATIONS. ASA is authorized to make or
repeat any statement or warranty made or contained in the Documentation,
provided that ASA shall not use certain parts of the Documentation to the
exclusion of others in a manner that exaggerates the benefits or risks of a
product or service, or in any other manner that deceives a third party as to the
benefits or rights associated with a product or service. Each party agrees to
comply with applicable state and federal laws or regulations relating to is
activities under this Agreement.
2.05 Product Development. QDS agrees to design, test and develop QDS
Products and Services for possible release in connection with its annual
development plan, as well as periodic upgrades to such products and services,
for licensing, sale or distribution.
2.06 Copies for Internal Use. QDS shall provide to ASA for ASA's
internal use in accordance with this Agreement, a demonstration copy of each
version, update, supplement, or modification of any QDS Product and Service
released by QDS during the term of this Agreement.
2.07 Restrictions on QDS Software. ASA shall not, without the prior
written consent of QDS, duplicate, translate, modify, copy, print out,
disassemble, decompile, reverse engineer, or otherwise alter any of the QDS
Products and Services, except ASA may make copies for routine backup purposes.
ASA shall not under any circumstances attempt, nor permit or encourage its
employees or agents, to decompile, decipher, disassemble, reverse engineer, or
otherwise decrypt or discover the source code for any of the QDS Products and
Services.
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2.08 Feedback. ASA may have occasion to provide feedback to QDS prior
to or during the course of this Agreement. ASA hereby grants to QDS a
non-exclusive, worldwide, perpetual, paid up and royalty free license to use,
market, sell and distribute Feedback in connection with the QDS Products and
Services, provided that QDS will not quote ASA in any published material without
ASA's prior written consent.
ARTICLE 3
DIVISION OF RESPONSIBILITIES
3.01 ASA and QDS shall each be responsible for the following indicated
activities, products, or services in regard to the QDS Products and Services:
(a) ASA Responsibilities: Marketing and sales of QDS Products
and Services, including pre-sale and post-sale support and acquisition
of Hardware and third-party software; Account Management; and
marketing. ASA shall invoice and collect all payments from ASA
Customers from the sale or licensing of QDS Products and Services
during the term of this Agreement, except for invoices for existing
support contracts and purchase orders outstanding from QDS Customers on
the Effective Date of this Agreement, which amounts shall be invoiced
and collected by QDS.
(b) QDS Responsibilities: Installation at customer sites;
training at QDS headquarters or at customer sites; support and software
maintenance; customer software development; product development,
including designing and testing code and development of product
documentation; and support, maintenance, and releases of software to
QDS Customers and ASA Customers. QDS shall refer all leads, inquiries
and sales prospects for QDS Products and Services to ASA during the
term of this Agreement.
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ARTICLE 4
RESTRICTIONS ON THE USE OF MARKS
4.01 LIMITED RIGHT TO USE. Each party shall retain all worldwide right,
title and interest in and to its own Marks. Nothing contained in this Agreement
shall give the other party any interest in such Marks. Each party agrees that it
will not at any time during or after this Agreement assert or claim any interest
in or do anything which may adversely affect the validity or enforceability of
any of the other party's Marks. Neither party will register, seek to register or
cause to be registered any of the other party's Marks without such party's prior
written consent.
4.02 PROPRIETARY NOTICES AND BRANDING. QDS shall not remove, efface, or
obscure any copyright notices or other proprietary notices or legends from any
software, product, or Documentation provided to ASA hereunder. ASA shall
properly use QDS' Marks when referencing the QDS Products and Services. ASA
agrees to: (i) include the QDS Marks on any promotional or marketing material
that refers to the QDS Products and Services; (ii) provide a reasonable number
of samples of such promotional or marketing material to QDS; and (iii) obtain
QDS' prior written approval of such promotional or marketing material before it
is published or in any manner communicated to third parties in oral, written, or
electronic form, including posting on the world wide web. QDS agrees to: (i)
include the XXX Xxxxx on any promotional or marketing material that refers to
ASA's marketing and sales of QDS Products and Services; and (ii) obtain ASA's
prior written approval of such promotional or marketing material before it is
published or in any manner communicated to third parties in oral, written, or
electronic form, including posting on the world wide web, provided that QDS
shall have no obligation to produce any such promotional or marketing material.
4.03 POST-TERMINATION. Upon expiration or termination of this
Agreement, each party shall: (i) immediately cease distribution of all items in
its possession which bear the other party's Marks; (ii) as promptly as is
practicable cease all use of the other party's Marks; (iii) agree not use any
xxxx which is confusingly similar to the other party's Marks; and (iv) return to
the other party all Documentation and similar materials in such party's
possession or shall destroy such items and certify their destruction to the
other party.
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ARTICLE 5
Customer Relations and Ordering
5.01 CUSTOMER PAYMENT. Payments by ASA Customers for all QDS Products
and Services shall be made directly to ASA. ASA shall be responsible for the
collection and accounting for all amounts paid by (i) any ASA Customer and (ii)
any QDS Customer with respect to Account Management activities, relating to the
QDS Products and Services. Neither party is responsible for any customer's
unpaid or delinquent payments due to the other party, but QDS and ASA shall
cooperate in efforts to collect any such unpaid amounts. ASA shall be
responsible for the collection and the remittance to the appropriate
jurisdiction of any and all applicable taxes relating to payments made by ASA
Customers, and ASA will hold QDS harmless from any taxes that are assessed
(whether against QDS or ASA) with respect to such sales.
5.02 ORDER PROCESSING. QDS and ASA shall agree on list prices all QDS
Products and Services, and orders for QDS Products and Services at prices other
than such list prices will not be accepted without prior mutual agreement of QDS
and ASA. ASA shall timely process all orders obtained by ASA for any of the QDS
Products and Services and arrange for the delivery or installation of the QDS
Products and Services. QDS shall cooperate in the prompt delivery or
installation of the QDS Products and Services.
5.03 CONTINUED CUSTOMER SUPPORT AND TRAINING. During the term of this
Agreement, QDS shall make available: (i) continuing technical support for the
QDS Products and Services; (ii) product development and customization services
for the QDS Products and Services in accordance with its annual operating plan;
and (iii) customer training at QDS's headquarters or customer's site.
5.04 CUSTOMER CONTACT. If at any time ASA is notified of an ASA
Customer's or QDS Customer's request that ASA limit or cease its solicitation of
that customer, ASA shall comply with all legal requirements relating to
unsolicited contacts with customers.
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ARTICLE 6
Allocation of Revenues
6.01 LICENSE FEE AND PREPAID QDS SHARE. In consideration of the rights
granted to ASA by QDS under this Agreement, ASA will pay to QDS,
contemporaneously with the execution of this Agreement, a one-time license fee
of $200,000.00 ("License Fee"), and a prepayment of the QDS Share of $200,000.00
("Prepaid QDS Share").
6.02 ALLOCATION OF REVENUES. ASA agrees to pay the QDS Share to QDS
based on the monthly Revenues from the sale or licensing of the QDS Products and
Services to ASA Customers according to the schedule attached as Exhibit B
("Allocation of Revenues"), according to the cash method of accounting.
6.03. PAYMENT OF QDS SHARE. The parties shall credit the monthly QDS
Share due to QDS from ASA against the Prepaid QDS Share, as the QDS Share is
earned, until such a time as the accumulated QDS Share due to QDS exceeds the
Prepaid QDS Share amount, at which time the QDS Share exceeding the amount of
the Prepaid QDS Share shall be paid by ASA directly to QDS. No later than 20
days after the end of each calendar month commencing with June 2004, according
to the cash method of accounting, (a) ASA will provide QDS with a full
accounting of all sales or licenses of QDS Products and Services, all Revenues,
and the QDS Share due for each such calendar month, and (b) the QDS Share due to
QDS by ASA under this Agreement will be credited against the Prepaid QDS Share
or paid to QDS.
6.04 PRIORITIES IN ALLOCATING REVENUE. If amounts are due from any ASA
Customer for more than one type of QDS Product and Service included in a single
invoice or in a group of invoices for one project or one order, any amount
received from such ASA Customer shall, as between ASA and QDS and for the
purpose of ASA's payment of the QDS Share, be deemed to have been paid for
particular QDS Products and Services included in that single invoice or the
group of invoices for that one project or one order, in the following order of
priority:
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1. Support and Software Maintenance;
2. Installation, Training, and Client Services;
3. Custom Software Development;
4. Account Management;
5. Hardware;
6. License Fees/Application Service Fees.
ARTICLE 7
RECORD KEEPING, INSPECTION AND AUDIT
7.01 RECORD KEEPING. Each of the parties shall keep proper records of
all sales to ASA Customers, Revenues, the QDS Share, and the ASA Share generated
under this Agreement in accordance with applicable laws and generally accepted
accounting principles consistently applied during the term of this Agreement.
Each party will provide the other with periodical reports as the other may from
time to time reasonably request.
7.02 RIGHT TO INSPECT. Each party shall have the right, upon reasonable
notice, to inspect the books and records and all other documents and material in
the other party's possession or control with respect to sales to ASA Customers,
Revenues, the ASA Share, and the QDS Share generated under this Agreement. All
such books and records shall be maintained and made accessible for inspection at
a location in the United States for at least two (2) years after termination of
this Agreement.
ARTICLE 8
Employment Taxes and Benefits; Insurance
Each party acknowledges and agrees that it will be solely responsible
for the following:
(a) paying all salaries, wages, benefits, and other
compensation of its employees or contractors in connection with its
activities under this Agreement;
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(b) paying all travel, lodging, and other expenses of its
employees or contractors in connection with performing activities on
its behalf under this Agreement; and,
(c) withholding and paying all applicable payroll taxes and
contributions, including, without limitation, federal, state, and local
income taxes, FICA, FUTA and state unemployment, workers' compensation,
and disability insurance for its employees and contractors.
ARTICLE 9
CONFIDENTIALITY
9.01 CONFIDENTIAL INFORMATION. This Agreement, the terms, conditions,
pricing and fees information conveyed under this Agreement, all information
concerning QDS Customers, ASA Customers, and any potential customers solicited
by ASA for QDS Products and Services during the term of this Agreement, all
information relating to the QDS Products and Services and the Intellectual
Property, and any other information or documents exchanged by the parties
arising out of or relating to this Agreement, as well as any copies, extracts,
notes, summaries or other writings based on such information (collectively,
"Confidential Information") are confidential and shall not be disclosed, orally
or in writing by a party to any third party without the prior written consent of
the other party, unless such information: (i) was already generally available to
the public; (ii) was disclosed by a third party who is not under any obligation
of confidentiality; or (iii) is required to be disclosed by law. ASA may
disclose to its employees and representatives and QDS may disclose to its
employees and representatives, the Confidential Information that is reasonably
necessary for such a party to perform its obligations under this Agreement, but
neither party shall use or permit the use of the other party's Confidential
Information by any person or entity for any other purpose whatsoever. If either
party is requested or required (by deposition, interrogatories, requests for
information or documents in legal proceedings, subpoena, civil investigative
demand, or other similar process) to disclose any of the Confidential
Information, such party shall provide the other party with prompt written notice
of any such request or requirement so that the other party may seek a protective
order or other appropriate remedy and/or waive compliance with the provisions of
this Section 9.01. The terms of Article 9 of this Agreement relating to this
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Confidential Information shall survive the expiration or earlier termination of
this Agreement for a period of five years.
9.02 DEGREE OF CARE. Each party shall maintain the Confidential
Information of the other party with at least the same degree of care it uses to
protect its own proprietary information of a similar nature or sensitivity, but
no less than reasonable care under the circumstances. Each party shall advise
the other party in writing of any misappropriation or misuse of Confidential
Information of the other party of which the notifying party becomes aware.
9.03 INJUNCTIVE RELIEF. QDS and ASA acknowledge that a party's
Confidential Information is valuable property of each party respectively and
that any unauthorized use or disclosure of such information by the other party
would cause irreparable harm for which a party's remedies at law would be
inadequate. Accordingly, QDS and ASA acknowledge and agree that each party shall
be entitled, in addition to any other remedies available to it at law or in
equity, to seek the issuance of injunctive or other equitable relief from the
other without the posting of any bond in the case of an actual or threatened
breach of the obligations set forth in Article 9 of this Agreement.
9.04 RETURN OF CONFIDENTIAL INFORMATION. Upon the expiration or earlier
termination of this Agreement, each party shall: (i) immediately return to the
other party all Confidential Information and all other materials provided to it
by the other party, including but not limited to any demonstration copies and
Documentation, within ten days after a written demand for such return; (ii) then
promptly thereafter, destroy, or permanently delete from all computer hard
drives and servers all documents, memoranda, notes, or other writings prepared
for the party which are based on or relate to the other party's Confidential
Information; and (iii) certify in writing to the other party that all such
material has been so returned or destroyed; provided, however, that copies of
such Confidential Information and materials may be retained solely to the extent
and for the time period necessary to enable a party to fulfill its obligations
to customers or other third parties with respect to performance on orders from
Customers accepted but not fully performed by ASA or QDS before expiration or
termination of this Agreement, up to a maximum of 90 days after such expiration
or termination.
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ARTICLE 10
Term and Termination
10.01 TERM. The term of this Agreement (the "Term") shall begin on the
Effective Date and shall remain in effect through December 31, 2005, unless the
Agreement is earlier terminated as further provided in this Article 10.
10.02 TERMINATION WITH CAUSE. If (a) either party commits or allows any
breach of any provision of this Agreement that is incurable, or that is curable
but not cured within thirty days after written notice of such breach is given to
the breaching party by the other party, or (b) either party becomes insolvent or
seeks protection, voluntarily or involuntarily, under any bankruptcy law, then
the non-breaching party may immediately terminate this Agreement upon written
notice of immediate termination given to the other party.
10.03 TERMINATION AT WILL. A party may terminate this Agreement without
cause before the end of the term of this Agreement by providing the other party
with written notice of such termination, in which case the Agreement will
terminate 30 days following the other party's receipt of such notice.
10.04 TERMINATION AT WILL BY QDS. If QDS terminates this Agreement
without cause as provided for in Section 10.03 of this Agreement, QDS shall
refund to ASA (a) the full amount of the License Fee and (b) any amount of
Prepaid QDS Share not earned as of the date of termination, less any Prepaid QDS
Share to be earned after the date of termination with respect to any orders for
QDS Products or Services received by ASA prior to the date of termination.
10.05 TERMINATION BY ASA WITH CAUSE. If ASA terminates this Agreement
for cause as provided in Section 10.02 of this Agreement, then QDS shall refund
to ASA (a) a portion of the License Fee, to be determined by multiplying the
total amount of the License Fee times the number of calendar months remaining in
the Term of this Agreement (with any partial month of more than 15 days rounded
up to a whole number) divided by 19, and (b) any amount of the Prepaid QDS Share
not earned as of the date of termination, less any Prepaid QDS Share to be
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earned after the date of termination with respect to any orders for QDS Products
or Services received by ASA prior to the date of termination.
10.06 TERMINATION BY QDS WITH CAUSE, BY ASA AT WILL, OR EXPIRATION UPON
THE END OF THE TERM. If QDS terminates this Agreement with cause as provide for
in Section 10.02 of this Agreement, if ASA terminates this Agreement at will as
provided for in Section 10.03 of this Agreement, or if the Agreement expires at
the end of the Term: (a) QDS shall keep all of the License Fee and Prepaid QDS
Share; (b) ASA shall promptly turn over to QDS all records and information in
ASA's possession regarding sales prospects for the QDS Products and Services
identified or developed by ASA during the term of this Agreement; provided,
however, that copies of such records and information may be retained solely to
the extent and for the time period necessary to enable ASA to fulfill its
obligations to customers or other third parties with respect to performance on
orders from customers accepted but not fully performed by ASA before expiration
or termination of this Agreement, up to a maximum of 90 days after the date of
such termination or expiration; and (c) ASA shall cooperate with QDS to
facilitate QDS' possible hiring of any ASA employees who worked exclusively with
customers utilizing the QDS Products and Services during the term of this
Agreement.
10.07 EFFECT OF TERMINATION. Upon the effective date of termination of
this Agreement for any reason, ASA shall (a) direct all ASA Customers to make
all future payments due for QDS Products or Services to QDS at an address
provided by QDS; (b) forward to QDS all payments received from ASA Customers
with respect to QDS Products and Services; and (c) assign to QDS all rights of
ASA as licensor under any licenses or sublicences issued by ASA with respect to
any QDS Products or Services, provided, however, that ASA may receive and retain
for its own account, to the extent provided in Article 6 of this Agreement, the
ASA Share of payments from ASA Customers for accounts receivable existing as of
the date of termination of this Agreement, and accounts receivable arising from
orders from ASA Customers entered before such termination but not fully
performed until after such termination.. If this Agreement is ever deemed to
have been terminated for any reason, the following shall survive the termination
of this Agreement: (i) claims of one party against the other party that have
accrued, in accordance with this Agreement, prior to the effective date of such
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termination; (ii) covenants of indemnity or confidentiality provided in this
Agreement; and (iii) all covenants and agreements to be performed and/or
observed by a party under this Agreement after the termination of this Agreement
or which by their nature survive such termination (including but not limited to
Section 2.08). Without limiting the forgoing, the expiration or termination of
this Agreement shall not affect an ASA Customer's right to receive or use
purchased QDS Products and Services, nor shall it affect or limit ASA's right to
deliver (for a maximum of 90 days after termination or expiration by this
Agreement) QDS Products or Services to customers from whom ASA has accepted an
order prior to the expiration or termination of this Agreement.
ARTICLE 11
Limitation of Liability
11.01 LIMITATION OF LIABILITY TO CUSTOMERS. QDS' entire liability to AN
ASA Customer and an ASA customer's exclusive remedy shall be limited to the
remedies provided for under the applicable end user license agreement between
ASA and the customer.
11.02 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY
LIABILITY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL
DAMAGES OF THE OTHER PARTY IN ANY WAY ARISING OUT OF THIS AGREEMENT AND HOWEVER
CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO LOSS OF
PROFITS OR LOSS OF DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY REMEDY.
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ARTICLE 12
INDEMNIFICATION
12.01 ASA'S OBLIGATIONS. ASA shall indemnify and hold QDS harmless from
and against any and all claims, liabilities, demands, causes of action, damages,
losses, and expenses (including reasonable attorneys' fees) arising out of or in
connection with any of the following: (i) breach of this Agreement by ASA; (ii)
violation of any applicable federal, state, or local law, regulation, ordinance,
rule, or standard by ASA or any of its employees or contractors, including but
not limited to the Fair Labor Standards Act and any law or regulation relating
to the method, form, or content of ASA's communications with customers or other
third parties, except with respect to content provided by QDS; (iii) any actual
or alleged negligent, willful, or wrongful act or omission by ASA or any of its
employees or contractors; and (iv) the use of the QDS Products and Services
Documentation or QDS Marks, resulting in any claims that such use infringes any
Marks or Intellectual Property Rights of any third party, to the extent that
such claim arises from any modification of or addition to the QDS Products and
Services Documentation or the QDS Marks by ASA.
12.02 QDS'S OBLIGATIONS. QDS shall defend, protect, indemnify, and hold
ASA harmless from and against any and all claims, liabilities, demands, causes
of action, damages, losses, and expenses (including reasonable attorneys' fees)
arising out of or in connection with any of the following: (i) breach of this
Agreement by QDS; (ii) violation of any applicable federal, state, or local law,
regulation, ordinance, rule, or standard by QDS or any of its employees or
contractors, including but not limited to the Fair Labor Standards Act and any
law or regulation relating to the method, form, or content of ASA's
communications with customers or other third parties to the extent such content
was provided by QDS; (iii) any actual or alleged negligent, willful, or wrongful
act or omission by QDS or any of its employees or contractors; (iv) the use,
sale, marketing, distribution, or sublicensing as authorized in the Agreement by
ASA or any ASA customer, of the QDS Products and Services Documentation, or QDS
Marks, resulting in any claims that such use, sale, marketing, distribution, or
sublicensing infringes any Marks or Intellectual Property Right of any third
party, except to the extent that such claim arises from any modification of or
addition to the QDS Products and Services Documentation or the QDS Marks by ASA,
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and provided that in any such action, claim or demand, ASA provides QDS with any
information in ASA's possession which would be reasonably necessary to defend
against such action, claim, or demand.
ARTICLE 13
Warranties
13.01 LIMITED WARRANTY. QDS warrants that any physical media containing
QDS Products or Services furnished by QDS to ASA or by QDS to end users will be
free from defects in material and workmanship under normal use for a period of
ninety (90) days from the date of delivery.
13.02 WARRANTIES DISCLAIMED. To the MAXIMUM extent permitted by law,
QDS HEREBY DISCLAIMS ALL WARRANTIES and Conditions (together "Warranties") with
respect to products, DoCumentation, and services PROVIDED under this Agreement,
whether such Warranties are EXPRESS, IMPLIED, OR STATUTORY, other than those
Warranties identified expressly in this agreement OR IN ANY END-USER SUBLICENSE
AGREEMENTS, including but not limited to warranties of non-infringement, or
merchantability and fitness for a particular purpose.
ARTICLE 14
Miscellaneous
14.01 INDEPENDENT CONTRACTOR. The relationship between the parties is
that of independent contractors and buyer and seller; nothing in this Agreement
is intended, and nothing shall be construed to create, an employer-employee,
co-employer, partnership, or joint venture relationship between the parties.
14.02 Compliance With Applicable Law. Each party shall be solely
responsible for its compliance with all federal, state, and local laws,
regulations, ordinances, rules or standards relating to its activities under
this Agreement, including but not limited to any of the foregoing pertaining to
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the method, form, and substance of communications by a party to potential
customers or other third parties.
14.03 ASSIGNMENT. Neither party may assign this Agreement or any rights
or obligations hereunder, by operation of law or otherwise, without prior
written consent of the other party.
14.04 NOTICES. All notices between the parties required under this
Agreement shall be in writing and shall be deemed to have been given: (i) in the
case of personal delivery (including by overnight private courier delivery),
when delivered to the address set forth herein; (ii) in the case of mailing,
three days after deposit in the United States Mail, postage prepaid, by
certified mail, addressed as set forth herein; (iii) in the case of facsimile
transmissions, upon completion of the transmissions with receipt confirmed; and
(iv) in all other cases, when received by the other party.
If to ASA, to: 00 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
ATTN: Xxxxx Xxxxxxxx
Email: xxxxxxxxx@xxxxxx.xxx
Phone: (000) 000-0000, Ext. 555
Fax: (000) 000-0000
If to QDS, to: 000 Xxxx Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
ATTN: Xxxxx Xxxxxxxx
Email: xxxxxxxxx@xxxxxxxxxx.xxx
Phone: 000-000-0000
Fax: 000-000-0000
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With copy to: Legal and Risk Management Services
Bandag, Incorporated
0000 Xxxxx Xxxxxxx 00
Xxxxxxxxx, XX 00000
14.05 Authorization to Fax. By providing a facsimile number in Article
14 of this Agreement, each party agrees to receive facsimile advertisements and
communications from the other party.
14.06 GOVERNING LAW; FORUM SELECTION. This Agreement shall be governed
in all respects, including validity, interpretation, and effect, by the laws of
the State of Iowa, U.S.A. excluding Iowa law with respect to conflicts of law.
Each party to this agrees to settle all disputes by binding arbitration in
Chicago, Illinois, under the rules then in effect of the American Arbitration
Association. The arbitrator(s) shall determine how all expenses relating to the
arbitration shall be paid, including without limitation, the respective expenses
of each party, the fees of each arbitrator and the administrative fee of the
American Arbitration Association. In the event that within thirty (30) days
after submission of any dispute to arbitration, the parties cannot mutually
agree on one arbitrator, each party shall each select one arbitrator, and the
two arbitrators so selected shall select a third arbitrator. The arbitrator or
arbitrators, as the case may be, shall set a limited time period and establish
procedures designed to reduce the cost and time for discovery while allowing the
parties an opportunity, adequate in the sole judgment of the arbitrator or
majority of the three arbitrators, as the case may be, to discover relevant
information from the opposing parties about the subject matter of the dispute.
The decision of the arbitrator or a majority of the three arbitrators, as the
case may be, shall be binding and conclusive upon the parties to this Agreement.
Judgment upon any award rendered by the arbitrator(s) may be entered in any
court having jurisdiction.
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14.07 EFFECT. This Agreement sets forth the entire agreement of the
parties relating to the subject matter hereof and supersedes all prior
agreements and understandings between the parties relating to the subject matter
hereof. It binds and benefits the parties and their successors in interest,
heirs, beneficiaries, legal representatives, and permitted assigns.
14.08 SEVERABILITY. The unenforceability, invalidity, or illegality of
any provision does not affect or impair any other provision or render it
unenforceable, invalid, or illegal.
14.09 INTERPRETATION. Wherever used in this Agreement, unless the
context clearly indicates otherwise, the use of the singular includes the
plural, and vice versa; and the use of any gender is applicable to any other
gender. The captions are for convenience only and do not affect the
interpretation of this Agreement. The word "including," when following any
general statement, term, or matter, shall not be construed to limit that
statement, term, or matter to the specific items or matters, whether or not
nonlimiting language (such as "without limitation," or "but not limited to," or
words of similar import) is also used, but rather shall be deemed to refer to
all other items or matters that could reasonably fall within the broadest
possible scope of that general statement, term, or matter.
14.10 NON-WAIVER. A party's failure to enforce at any time or for any
period of time any provision of this Agreement or to exercise any right or
remedy does not constitute a waiver of such provision, right, or remedy, or
prevent such party thereafter from enforcing any or all provisions and
exercising any or all rights and remedies. The exercise of any right or remedy
does not constitute an election or prevent the exercise of any or all rights or
remedies.
14.11 THIRD PARTIES. No provisions of this Agreement are intended, nor
will be interpreted, to provide or to create any third party beneficiary rights
or any other rights of any kind in any client, customer, affiliate, stockholder,
employee, partner of any party hereto, or any other person or entity unless
specifically provided otherwise herein, and, except as so provided, all
provisions hereof will be personal solely between the parties to this Agreement.
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14.12 AMENDMENT. No amendment or modification of this Agreement is
effective unless made in writing and signed by each party.
14.13 COUNTERPARTS. This Agreement may be signed in several
counterparts, each of which will be an original and all of which will constitute
one agreement.
The parties have duly executed and agreed to be bound by this Agreement
by the signatures of their authorized representatives below.
QUALITY DESIGN SYSTEMS, INC. ASA Tire Systems, Inc.
By: /s/ Xxxxxxx X. Xxxxx, Vice President By: /s/ Xxxxxxxx X. XxXxxxxx, VP &
Treasurer
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EXHIBIT A
TO EXCLUSIVE LICENSE AGREEMENT BETWEEN
QUALITY DESIGN SYSTEMS, INC. AND
ASA TIRE SYSTEMS INC.
DATED JUNE 1, 2004
QDS PRODUCTS AND SERVICES
-------------------------
QDS Products and Services include the following:
QDS' TireMaster(R) Software, together with hardware and related
products and services currently licensed or sold, or hereafter developed, or
offered for license or sale, by QDS' facility located in Meridian, Idaho, either
as an enterprise or application service provider solution.
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EXHIBIT B
TO EXCLUSIVE LICENSE AGREEMENT BETWEEN
QUALITY DESIGN SYSTEMS, INC. AND
ASA TIRE SYSTEMS, INC.
DATED JUNE 1, 2004
ALLOCATION OF REVENUES
----------------------
Activity, product or Responsible Party Percentage of Percentage of
service Revenues to be Revenues to be
retained by ASA paid by ASA to
QDS
------------------------- ------------------ --------------- ---------------
Marketing Products / ASA 80 % 20%
Services
Sales Including Pre and
Post Sales Support
Hardware ASA 80 % 20%
License Fees/ Application ASA 80% 20%
Service Provider Fees for
ASA Customers
Account Management ASA 20% 80%
Installation, Training, QDS 20% 80%
and Client Services (at
QDS Headquarters or
Customer's site)
Support and Software QDS 20% 80%
Maintenance
Custom Software QDS 20% 80%
Development
Product Development- QDS None None
Design Code, Testing and
Documentation
Marketing ASA None None
Support, Maintenance, and QDS None 100%
Releases to QDS Customers
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