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EXHIBIT 10.45
CONFIDENTIAL TREATMENT REQUESTED
DYAD CORPORATION
LICENSE AND DISTRIBUTION AGREEMENT
This License and Distribution Agreement (this "Agreement") is entered
into as of March 5, 1997 by and between Phoenix International Ltd., Inc., a
Florida corporation ("Phoenix"), and Dyad Corporation, a Georgia corporation
("Dyad").
RECITALS
Dyad is in the process of developing certain automated loan, mortgage
and financial services delivery machines for use in the financial services
industry. Phoenix has made a capital investment in Dyad pursuant to the Stock
Purchase Agreement between them of even date herewith, and wishes to promote
and sell Dyad's products domestically in conjunction with its own products and
to have an exclusive right to promote and sell Dyad's products internationally.
NOW, THEREFORE, in consideration and furtherance of the foregoing, the
parties hereto, intending to be legally bound, agree as follows:
1. DEFINITIONS
As used in this Agreement, capitalized terms shall have the following
meanings:
1.1. Confidential Information means any business, technical or
other information furnished by one party hereto to the other
or disclosed to the other as a result of examination or
inspection of the other party's facilities or products,
whether such information is disclosed in writing or orally.
Confidential Information shall in all cases include all source
and object code, development level documentation, and similar
technical information regarding the Products and Phoenix
Software and all marketing, business and product development
information. Confidential Information shall not include
information which (a) at the time of disclosure is in the
public domain or thereafter enters the public domain for
reasons not attributable to any act or omission of the
receiving party in breach of its obligations hereunder, (b)
which the receiving party can show was in its possession prior
to the disclosure thereof by the disclosing party, or (c)
which the receiving party can show it acquired from a third
party who does not thereby breach an obligation of confidence
to the disclosing party and who discloses it in good faith.
1.2. Documentation means the documentation associated with the
Products as produced and provided by Dyad to Phoenix.
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1.3. End User means a customer who purchases the Products and/or
licenses the Software from Phoenix.
1.4. End User License means the agreement to be entered into
between Phoenix and each End User pursuant to Section 9.1
granting the End User a license to use the Products and/or the
Software.
1.5. Intellectual Property Rights means all copyrights and design
rights, whether registered or unregistered, patents or patent
applications, know-how, trade secrets, and Confidential
Information related to or arising in the Products, Software or
Documentation, including all applicable architecture, designs,
modules, routines, programming, command structures,
interfaces, and any Modifications thereto.
1.6. Modification means a work which is based upon one or more
preexisting works, such as a revision, modification,
translation, abridgement, condensation, expansion, or any
other form in which such preexisting works may be recast,
transformed, or adapted, and shall include any work that
incorporates or is combined with such a preexisting work or
any portion thereof.
1.7. Modify means to make a Modification.
1.8. Phoenix Customer means a U.S. customer of Phoenix who has
purchased a license for and is using the Phoenix Software.
1.9. Phoenix Marketing Agents means those persons who have been
authorized by Phoenix to sell, market and/or distribute the
Phoenix Software.
1.10. Phoenix Software means the software of Phoenix known as the
Phoenix Retail Banking System.
1.11. Prime Rate means the prime rate (or base rate) reported in the
"Money Rates" column or section of The Wall Street Journal as
being the base rate on corporate loans at larger U.S. money
center banks on the first date on which The Wall Street
Journal is published in each month.
1.12. Products means the current and future versions of the Dyad
products currently referred to by Dyad as the Automatic Loan
Machine and the MoneyPro Video Conferencing Kiosk System, and
the associated Software and Documentation. Additional
products may be added by agreement of the parties as they are
developed or acquired by Dyad.
1.13. Trademarks means the trademarks, service marks and trade names
used by Dyad in connection with the Products, whether
registered or unregistered.
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1.14. Software means the Software developed and owned by Dyad and
required for operation of the Products, including all
interfaces, additions, and Modifications thereto and new
releases thereof delivered to Phoenix under this Agreement.
2. MARKETING APPOINTMENT
2.1. Domestic
Dyad hereby grants Phoenix the exclusive right to market, sell
and license the Products to Phoenix Customers, and the
non-exclusive right to market the Products to potential
Phoenix Customers and to market, license and sell the Products
to persons who originate loans or mortgages on behalf of
Phoenix' Customers, including by way of example car dealers,
furniture retailers, and real estate agents. Dyad shall not,
and shall not allow any of its other marketing or distribution
persons to market the Products to Phoenix' potential customers
who are actively considering and working with Phoenix
regarding a license for the Phoenix Software. Phoenix shall
provide a list of such potential customers to Dyad from time
to time.
2.2. International
Dyad hereby grants Phoenix the exclusive right to market, sell
and license the Products worldwide outside of the U.S. The
exclusivity of such international marketing right shall be
contingent upon Phoenix meeting the following minimum Net
Revenue (as defined in Section 5.3) from sale or license of
the Products and Software outside of the U.S.:
XXX by XXXXXXXXXXXX
If such target is not met by Phoenix, Phoenix' rights under
this Section 2.2 shall become immediately and automatically
non-exclusive. Additionally, such exclusivity may terminate
as set forth in Section 10.1 below.
2.3. Marketing Agents
Phoenix may sublicense the rights granted in this Section 2 to
any of its subsidiaries or Marketing Agents subject to the
following terms and restrictions: (a) Phoenix may not provide
any Product, or sublicense any rights hereunder, to any
competitor of Dyad or any person developing, marketing or
selling a competitive product; (b) such party is authorized to
and is actively marketing, licensing or distributing the
Phoenix Software; (c) Phoenix shall be responsible for
ensuring compliance by each such party with all applicable
terms and conditions of this Agreement respecting the use and
protection of the Confidential Information and Intellectual
Property Rights of Dyad; and (d) Phoenix shall use
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the same amount of care and protection in dealing with
each such party with respect to the Products as it provides
and uses with respect to the Phoenix Software.
3. LICENSE
3.1. License Grant
Subject to the terms and conditions of this Agreement, and in
support of the other rights granted hereunder, Dyad hereby
grants Phoenix the following rights and licenses with respect
to the Products:
(a) To make copies of the Software in object code form
only and copies of the Documentation for distribution
to End Users as authorized by paragraph 3.1(b) below
and for use by Phoenix as authorized by paragraphs
3.1(c) and 3.1(d) below;
(b) To distribute copies of the Software to End Users who
have duly executed End User License Agreements
concerning the Products or the Software.
(c) To install and use the Software on Phoenix' own
computer systems and to use the Documentation for
demonstration, training and support of End Users.
(d) To make Modifications to the Software in conjunction
with Dyad as authorized by Section 4 below.
(e) To use the Trademarks relating to the Products,
provided, however, that such use shall be subject to
reasonable advertising and promotion guidelines which
Dyad may provide from time to time. Dyad reserves
the right to disallow any use of the Trademarks which
would in any way, in Dyad's opinion, harm the
validity or value of the Trademarks.
3.2. Restrictions
(a) Phoenix shall not copy, adapt, modify or reproduce
the Software in any manner whatsoever other than as
expressly provided in this Agreement without the
prior written consent of Dyad.
(b) Phoenix may not provide the Software to any third
party except pursuant to a fully executed End User
License or to Phoenix Marketing Agents pursuant to
Section 2.3.
(c) Phoenix may not use the Products in production for
the benefit of any third party, except as otherwise
allowed by written agreement between Dyad and
Phoenix.
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XXX-CONFIDENTIAL TREATMENT REQUESTED
(d) During the term of this Agreement for the two years
thereafter, Phoenix may not use, rely on, or refer to
the Products, the Software, or any Confidential
Information of Dyad to develop, have developed,
support or invest in, directly or indirectly, the
development of any product which has, entirely or
partially, the same functions as any of the Products
or Software or which would be in direct or indirect
competition with any of the Products, or to sell
competing products or services.
4. MODIFICATIONS
4.1. Product Interface
Dyad and Phoenix shall work in conjunction with one another to
develop an interface between the Products and the Phoenix
Software. Each party shall pay its own costs associated with
the development of such interface. Upon completion, those
parts of the interface which are separable from the Software
and the Phoenix Software shall be jointly owned by Phoenix and
Dyad.
4.2. Localization Modifications
From time to time, Phoenix may request that the Software be
Modified for use in other countries, which Modifications may
include translations into other languages and Modifications
required for compliance by the Products with local rules and
regulations governing financial institutions. Phoenix and
Dyad shall jointly develop the parameters for such
Modifications and a reasonable schedule for completion.
Unless otherwise agreed by the parties, such Modifications
shall be produced by Dyad, and Phoenix shall pay Dyad for such
Modifications at its then current time and material rates plus
travel and lodging expenses related to such Modifications.
5. REPORTING, FEES AND PAYMENT
5.1. Initial License Fee
Contemporaneously with the execution of this Agreement,
Phoenix shall pay Dyad a License Fee in the amount of XXXX for
the license of the Software to XXX of its customers. Such
amount shall be paid by delivering XXX to Dyad in immediately
available funds by either wire transfer or cashier's check, as
agreed by the parties, and by delivering a promissory note in
the amount of XXX, payable on or before XXXXX. No additional
license fee in excess of the continuing royalties below shall
be due for customers in excess of XXX.
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XXX-CONFIDENTIAL TREATMENT REQUESTED
5.2. Continuing Royalties
For payment of the initial license fee above, Phoenix may keep
the first XXX in Net Revenue (as defined below) from the sale,
license and maintenance of the Products. In addition to the
initial license fee, after the first XXXX in NetRevenue,
Phoenix shall pay to Dyad a percentage of its Net Revenues as
follows: (i) XX of the Net Revenue received by Phoenix from
the XXXXXX of the Products including, without limitation,
XXXXXXXXXXXXX; (ii) XXX of its Net Revenue from XXXXXXXX of
the Products; and (iii) Phoenix and Dyad shall XXXXXXXXX based
on XXXXXXXXXX. It is anticipated that Dyad will assist with
initial implementations and that Phoenix will eventually
handle implementations on its own. Amounts due Dyad hereunder
shall be paid to Dyad by the tenth business day following the
receipt of such revenue by Phoenix, and shall be accompanied
by the name of the End User, their address, and the number of
locations where each End User is using the Products.
5.3. Pricing and Determination of Net Revenue
(a) Phoenix and Dyad shall work together and use their
best efforts to jointly develop pricing terms for the
Products to be offered to End Users (the "Price
List"). Phoenix shall adhere to the Price List in
all sales and licenses of the Products and Software,
or any components thereof. The Price List shall be
reviewed by the parties periodically and revised to
reflect customer requirements, changes in the market,
products costs, and other relevant factors. Dyad
shall not offer pricing for the Products which are
materially better than those contained in the Price
List. Phoenix shall be responsible for the invoice
and collection of all fees owed by End Users.
(b) For purposes of this Agreement, Net Revenues shall be
defined as gross revenue received by Phoenix, minus
hardware and other out-of-pocket expenses reasonably
incurred by Phoenix associated with such revenue.
For the purpose of determining gross revenue, fees
collected by Phoenix shall be deemed to be the higher
of (i) the fees actually collected by Phoenix or (ii)
the fees set forth in the Price List. If the amount
of a particular fee cannot be determined because it
is included in the bulk fees for the Phoenix Software
or otherwise, the Price List fee shall be used to
determine gross revenue.
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5.4. Other Fees
From time to time Dyad may provide additional programming or
consulting services to Phoenix not otherwise covered by this
Agreement. Such services shall be detailed in a work order
agreed to by both parties setting forth the services to be
provided and the estimated schedule for completion of such
services. Dyad shall xxxx Phoenix for such services
XXXXXXXXXXXXXXXXXXXXXXXX, plus reimbursement for reasonable
related travel, lodging, meals, and other out-of-pocket
expenses. Phoenix shall pay Dyad all properly invoiced
amounts therefore within ten business days following receipt
of such invoice.
5.5. Expenses
Except as otherwise expressly set forth herein, Phoenix shall
be responsible for all of its own marketing and other expenses
related to the subject matter of this Agreement.
5.6. Taxes
Phoenix shall be responsible for paying all U.S. and foreign
taxes that are imposed due to the transactions contemplated by
this Agreement, including all applicable excise, property,
VAT, sales and use, or similar taxes, any income taxes or
withholding requirement in addition to or in lieu thereof
(exclusive only of United States Federal, state or local taxes
based upon the net income of Dyad), and any customs, import,
export or other duties, levies, tariffs, taxes, or other
similar charges. Phoenix shall indemnify and hold Dyad
harmless from any and all expenses related to Phoenix failure
to pay such taxes, and if Dyad is required to pay any taxes
for which Phoenix is responsible hereunder, Phoenix shall
promptly reimburse Dyad therefore.
6. HARDWARE
Phoenix shall purchase, and shall cause all End Users to purchase, all
hardware required for the Products from Dyad (including the automatic
loan machines and the video kiosks for the mortgage system). Dyad
shall sell such hardware to Phoenix at cost. Upon request, Dyad will
review alternative hardware and software configurations proposed by
Phoenix and may, in its sole discretion, approve such configurations.
7. SOFTWARE INTEGRATION
Certain portions of the Software may be appropriate for use with the
Phoenix Software apart from their applicability to the functionality
of the Products. Dyad and Phoenix shall work together to identify
such components of the Software, and to formulate a plan for
integration of such software components with and into the Phoenix
Software. Phoenix and/or Dyad shall Modify such software components
as may be necessary to
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enable them to work independently of the Products and in conjunction
with the Phoenix Software. Phoenix and Dyad shall work together to
enter into an agreement setting forth pricing, ownership, license, and
revenue sharing terms for the license of such Software products to
Phoenix' Customers. Such terms shall be no less favorable to Phoenix
than the terms of this Agreement. Phoenix shall bear and/or shall
reimburse Dyad for all costs associated with such Modifications.
8. OBLIGATIONS OF DYAD
8.1. Copies of the Software
Dyad shall provide Phoenix with a reasonable number of copies
of the Software and Documentation as necessary for Phoenix to
fulfill its obligations and exercise its rights hereunder.
All Software and Documentation shall be provided in English
unless otherwise translated as provided in Section 4.2 above.
8.2. Maintenance and Support
Dyad shall provide the following maintenance and support to
Phoenix for the Products:
(a) Dyad shall deliver all future Modifications and new
versions and releases of the Software to Phoenix
which Dyad has prepared for license to its customers.
Such Modifications and new releases shall become part
of the Products and subject to this Agreement upon
delivery.
(b) Dyad shall use its reasonable commercial efforts to
correct or provide work around solutions for material
reproducible errors in the Products reported to Dyad
by Phoenix. Phoenix shall provide all information
required by Dyad to reproduce and correct such
errors. Material errors are those which cause the
Products to operate other than in conformity with
their documentation or which interfere with an End
User's proper use of the Products or Software.
(c) Dyad shall provide telephone support to Phoenix for
the Products and Software to assist Phoenix in the
provision of maintenance and support of the Products
and Software to End Users as required under Section
10.3 below.
8.3. Exceptions
The following matters are not covered by maintenance or
support under this Agreement:
(a) Any problem resulting from the misuse, improper use,
alteration, or damage of any of the Software;
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(b) Any problem caused by the Modifications of any
version of the Software not made or authorized by
Dyad; or
(c) Any problem resulting from the use of the Software
with other programming or with hardware
configurations not approved in writing by Dyad.
8.4. Training
Dyad shall provide technical assistance and training to
Phoenix as reasonably requested by Phoenix for its own
personnel at no charge; provided, however, that Phoenix shall
reimburse Dyad for all expenses incurred by Dyad (including
travel and lodging expenses) in providing such assistance and
training. Additionally, Dyad personnel shall assist and work
with Phoenix' personnel in the first XXX installations of
Products for End Users.
9. OBLIGATIONS OF PHOENIX
9.1. End User Agreements
Phoenix shall require each End User to enter into an End User
License with Phoenix prior to delivery of any Product to such
End User. Phoenix shall furnish each form of End User License
Phoenix proposes to use to Dyad for its approval. End User
License shall contain appropriate terms regarding ownership of
intellectual property, licensing terms, protection of
confidential information and other terms as may be reasonably
requested by Dyad. Phoenix shall use all reasonable efforts
to enforce the terms of End User Licenses and to ensure
compliance by End Users. Phoenix shall inform Dyad of all
known breaches of End User Licenses.
9.2. End Users
Phoenix shall notify Dyad of potential customers for the
Products. Dyad shall notify Phoenix of marketing conflicts
with Dyad's marketing efforts to such potential customers. In
case of conflict, the senior sales managers of Phoenix and
Dyad shall determine whose sales force shall market to the
customer. If no resolution can be reached, the decision of
Dyad as to such customer shall be final.
9.3. End User Support
Phoenix shall provide all maintenance and support to End
Users. Dyad shall not be responsible for support of any End
User, but shall only provide such assistance to Phoenix'
support staff as they may require from time to time to resolve
End User problems. Phoenix shall maintain a qualified support
staff capable of
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providing such support and maintenance and shall
maintain a telephone support line during Phoenix regular
business hours for provision of telephone support to End
Users.
9.4. Customer Contacts
Phoenix will work exclusively with Dyad with respect to any
business opportunity presented to Phoenix by Dyad or obtained
by Phoenix as a result of its working relationship with Dyad.
9.5. Notices, Logos and Marks.
Phoenix shall not alter, erase or obscure any notices,
legends, or trademarks or alter any indications of ownership
such as copyright, serial number or any other designations or
security provisions featured on copies of the Software and
Documentation, and shall include all such features on all
copies of the Software and Documentation made by Phoenix.
9.6. Copies of Materials
Prior to use, Phoenix shall send to Dyad for review and
approval copies of all advertising, marketing and product
materials related to the Products or Software proposed to be
used by Phoenix. Such approval by Dyad shall not be
unreasonably withheld.
9.7. Compliance with Laws
(a) Phoenix shall, at its own expense, be responsible for
insuring compliance with all laws relating to the
export and license of the Products by Phoenix
hereunder, and shall procure all licenses and pay all
fees and other charges required thereby.
(b) Phoenix may not ship, export or re-export the
Products or any other information, process, product
or service obtained directly or indirectly from Dyad
to any country or entity which is the subject of any
prohibition imposed by the U.S. Export Administration
Act of 1979, U.S. Executive Orders, the U.S.
Department of Commerce, the North Atlantic Treaty
Organization, or any other U.S. or foreign law.
(c) Phoenix hereby agrees that it and its directors,
officers, employees, and agents will comply with the
Foreign Corrupt Practices Act of 1977, as amended.
10. TERM AND REVIEW
10.1. Term
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This Agreement shall become effective on the date first set
forth above and shall continue for an initial term of 5 years.
This Agreement shall automatically renew for successive terms
of two years thereafter. After the initial 5 year term,
either party may terminate this Agreement upon 180 days' prior
written notice. Phoenix' exclusivity with respect to the
rights granted under Section 2.2 shall expire at the end of 3
years following the date of this Agreement, unless extended by
mutual agreement of the parties.
10.2. Termination
Either party may terminate this Agreement at any time on at
least thirty (30) days' prior written notice following a
material breach of the terms of this Agreement by the other
party which is not cured within such notice period. Dyad may
terminate this Agreement upon thirty (30) days' prior written
notice if Phoenix either (i) incurs a conflict of interest of
significant impact, or (ii) fails to devote reasonable effort
to the license of the Software to End Users, which failure is
not cured within the notice period. Phoenix may terminate
this Agreement upon 60 days' prior written notice to Dyad.
10.3. Effect of Termination
Notwithstanding the termination of this Agreement, Dyad shall
continue to be entitled to the fees earned under this
Agreement.
10.4. Survival
Notwithstanding termination of this Agreement for any reason
(including, without limitation, by notice pursuant to Section
10.2), Sections 3.2(d), 5.2, 12, (Indemnification by Phoenix),
13 (Title to Intellectual Property), 14 (Confidentiality) and
16 (General) shall continue to have effect as shall any other
provisions which by their nature or necessary implication
ought or were intended to continue to have effect, and End
User Licenses of customers already granted prior to the date
of such termination shall continue to be valid.
10.5. Actions Upon Termination
Upon termination Phoenix shall:
(a) promptly cease to use, license, market or promote
the Products;
(b) return all copies of the Products in the possession
of Phoenix to Dyad and shall cease using the same for
any purpose whatsoever;
(c) for a period of six (6) months following termination,
refer to Dyad all prospective customers and all
inquiries received by it relating to the Products;
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(d) return and deliver or cause to be returned and
delivered to Dyad all memoranda, notes, reports,
documents or media relating to or containing
Confidential Information, including any copies or
extracts thereof.
(e) if termination is by Dyad due to breach by Phoenix,
and Phoenix fails to provide continuing support to
End Users pursuant to its obligations under End User
License or other maintenance agreements, Phoenix
shall assign all End User Licenses and other such
agreements to Dyad to the extent required for Dyad to
provide support of the Products to End Users.
Phoenix shall certify its compliance with this Section upon
the written request of Dyad. Notwithstanding the foregoing or
the termination of this Agreement, provided Phoenix is current
and continues to make all payments due Dyad hereunder, has not
breached any material term of this Agreement, and continues to
provide maintenance and support to End Users in accordance
with the terms of the agreements Phoenix may have with such
End Users, Phoenix may continue to use the Products solely for
the purposes of providing maintenance and support of the
Products to End Users under continuing End User Licenses,
maintenance agreements, or other written agreement.
11. WARRANTY
11.1. No Warranty
Dyad's maintenance obligations to Phoenix under Section 8.2
above are in lieu of any warranty with respect to the Products
or the Software. DYAD DISCLAIMS ANY AND ALL OTHER
REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS INCLUDING
(WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
11.2. Limitation of Liability and Damages
DYAD'S LIABILITY FOR ANY AND ALL DAMAGES SHALL BE LIMITED TO
THE REMEDIES PROVIDED HEREIN. NEITHER PARTY SHALL HAVE ANY
LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF PROFITS, INTERRUPTION OF
BUSINESS, OR ANY OTHER MONETARY LOSS, ARISING OUT OF THE USE
OR INABILITY TO USE THE PRODUCTS OR THE SOFTWARE, OR FOR
MISSTATEMENTS, MISTAKES OR OMISSIONS IN THE DOCUMENTATION,
EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE POSSIBILITY OF
SUCH DAMAGES. Neither party shall be responsible to any
customer or End User for the quality of service or performance
of
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products furnished by the other party. Each party is
solely responsible for establishing the prices of its own
products, services and associated deliverables.
12. INDEMNIFICATION BY PHOENIX.
12.1. Infringement of Intellectual Property Rights.
If a third party claims that the Products infringe any patent,
copyright, trade secret, or similar Intellectual Property
Rights, Dyad shall (as long as Phoenix is not in default under
this Agreement or any other agreement with Phoenix) indemnify
and defend Phoenix against such claim at Dyad's expense,
provided that Phoenix promptly notifies Dyad in writing of any
such claim, allows Dyad to control all negotiations and
litigation related thereto, and cooperates with Dyad in the
defense and disposition of such claim, including any related
settlement negotiations.
12.2. Limitations.
If such a claim is made or appears possible, Dyad may, at its
option, secure for Phoenix the right to continue to use the
Products, or modify or replace the infringing Product so it is
non-infringing. Dyad has no obligation hereunder for any
claim based on a modified version of a Product which has not
been approved by Dyad, or for any combination, operation or
use of the Products with a non-approved operating environment
or with any program, product, data or apparatus not approved
in writing by Dyad. Dyad shall have no obligation hereunder
for any claim based on theories of law that are not
substantially equivalent to laws, treaties and conventions
applicable to U.S. patents, copyrights, trade secrets, and
similar intellectual property rights. THIS SECTION 12 STATES
DYAD'S ENTIRE OBLIGATION TO PHOENIX WITH RESPECT TO MATTERS OF
TITLE OR ANY CLAIM OF INFRINGEMENT THEREOF.
13. TITLE TO INTELLECTUAL PROPERTY
All right title and interest in and to all copies of the Products,
Software and Documentation and all Intellectual Property Rights
pertaining thereto shall vest exclusively with Dyad, including the
Intellectual Property Rights in all Modifications and other related
works created by or for Dyad, Phoenix, or any End User, including
their personnel and permitted agents or contractors (except as
otherwise expressly stated herein). To the extent rights in
Modifications and all Intellectual Property Rights therein do not
automatically and fully vest exclusively in Dyad, Phoenix agrees to
and hereby does assign to Dyad all such rights, and shall execute all
such other agreements as Dyad may require to effect such assignment.
To the extent Modifications are produced by or under the supervision
of Dyad, Dyad hereby grants to Phoenix a non-transferrable, and
royalty free license to reproduce, license and distribute such
Modifications, but only to the extent they are marketed and licensed
or sold to End Users for use solely with duly licensed versions of the
Software pursuant to End User Licenses in effect with Phoenix.
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Neither party, without the express prior written approval of the other
shall use the trademarks, service marks, or proprietary words or
symbols of the other. Notwithstanding the foregoing, nothing
contained in this Agreement shall affect either party's rights to use
any trademarks, service marks, or proprietary words or symbols of the
other to the extent otherwise permitted by applicable law or by
written agreement between the parties.
14. CONFIDENTIALITY
Except as otherwise provided herein or as allowed by the prior written
consent of the other party, for the term of this Agreement and for a
period of three (3) years following the termination of this Agreement
(and for ten (10) years with respect to source code for any Software),
each party hereto (a) shall receive all Confidential Information of
the other in strict confidence, (b) shall use the same degree of care
which it uses to protect its own Confidential information to maintain
the confidentiality and secrecy thereof, (c) shall disclose the
Confidential Information, and permit the Confidential Information to
be disclosed, only to its employees who need access to the
Confidential Information to carry out the terms and intent of this
Agreement, and (d) shall use the Confidential Information only in
furtherance of its rights and obligations set forth in this Agreement.
Both the parties shall keep confidential the terms and conditions of
this Agreement, but not its existence, and all other information which
is designated in writing as confidential by one party to the other.
Notwithstanding the foregoing, a party may make such disclosures as
may be required by order of a court of competent jurisdiction,
administrative agency or other government body, or by law rule or
regulation, provided, however, that to the extent possible, it gives
the other party prior written notice of such requirement and assists
the other party in its efforts to oppose such requirement.
15. EMPLOYEES
During the term of this Agreement and for a period of twelve (12)
months thereafter, neither party will directly or indirectly solicit
for employment or employ any employee of the other without the prior
written consent of the other.
16. GENERAL
16.1. No Authority to Bind the Other Party
The parties to this Agreement are independent contractors and,
except as provided in this Agreement or otherwise in a writing
signed by both parties, neither party is authorized to act on
behalf of the other or to bind the other. This Agreement does
not establish any relationship of agency, partnership, or
joint venture. Each party shall bear responsibility for its
own employees, including terms of employment, wages, hours,
tax withholding, required insurance, and daily direction and
control. Except as otherwise set forth in an Addendum, the
relationship created hereunder is non-exclusive as to each
party.
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16.2. Successors and Assigns
Except as otherwise provided in this Agreement, neither party
may assign this Agreement or any rights or obligations
hereunder without the prior written consent of the other
party. Any such attempted assignment without such prior
written consent shall be void and of no force and effect.
This Agreement shall inure to the benefit of and shall be
binding upon the permitted successors and assigns of the
parties hereto.
16.3. Governing Law; Jurisdiction
The construction and interpretation of, and the rights and
obligations of the parties pursuant to this Agreement shall be
governed by the laws of the State of Georgia.
16.4. Force Majeure
Neither party shall be liable for any failure of or delay in
the performance of this Agreement for the period that such
failure or delay is due to acts of God, public enemy, civil
war, strikes or labor disputes, or any other cause beyond the
parties' reasonable control. Each party agrees to notify the
other party promptly of the occurrence of any such cause and
to carry out this Agreement as promptly as practicable after
such cause has terminated.
16.5. Severability
In the event that any part of this Agreement is declared by
any court or other judicial or administrative body to be null,
void or unenforceable, said provision shall survive to the
extent if is not so declared, and all of the other provisions
of this Agreement shall remain in full force and effect.
16.6. Notices
All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have
been duly given: (i) on the date of service if served
personally on the party to whom notice is to be given; (ii) on
the day of transmission if sent via facsimile transmission to
the facsimile number given below, and telephonic confirmation
of receipt is obtained promptly after completion of
transmission; (iii) on the second day after delivery to
Federal Express or similar overnight courier or the Express
Mail service maintained by the United States Postal Service;
or (iv) on the fifth day after mailing, if mailed to the party
to whom notice is to be given, by first class air mail,
registered or certified, postage prepaid and properly
addressed, to the party as follows:
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XXX-CONFIDENTIAL TREATMENT REQUESTED
If to Phoenix: Phoenix International Ltd., Inc.
000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
If to Dyad : Dyad Corporation
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: XXX
Either party may change its address for the purpose of this
Section by giving the other parties written notice of its new
address in the manner set forth above.
16.7. Amendments; Waivers
This Agreement may be amended or modified, and any of the
terms, covenants, representations, warranties or conditions
hereof may be waived, only by a written instrument executed by
the parties hereto, or in the case of a waiver, by the party
waiving compliance. Any waiver by any party of a condition,
or of the breach of any provision, term, covenant,
representation or warranty contained in this Agreement, in any
one or more instances, shall not be deemed to be nor construed
as furthering or continuing waiver of any such condition, or
of the breach of any other provision, term, covenant,
representation or warranty of this Agreement.
16.8. Entire Agreement
This Agreement contains the entire understanding between the
parties hereto with respect to the transactions contemplated
hereby and supersedes and replaces all prior and
contemporaneous agreements and understandings, oral or
written, with regard to such transactions. All schedules and
addenda hereto and any documents and instruments delivered
pursuant to any provision hereof are expressly made a part of
this Agreement as fully as though completely set forth herein.
The rights of the parties are only as set forth herein, and
there are and shall be no implied rights or obligations
whatsoever.
16.9. Parties in Interest
Nothing in this Agreement is intended to confer any rights or
remedies under this Agreement on any persons other than
Phoenix and Dyad and their respective successors and permitted
assigns. Nothing in this Agreement is intended to
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relieve or discharge the obligations or liability of
any third persons to Phoenix or Dyad.
16.10. Section and Paragraph Headings
The section and paragraph headings in this Agreement are for
reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
16.11. Counterparts
This Agreement may be executed in counterparts, each of which
shall be deemed an original, but both of which shall
constitute the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
Phoenix International Ltd., Inc.: Dyad Corporation:
By:/s/ Xxxxxx Xxxxxxxxxx By:/s/ Xxxx Xxxxxxx
------------------------------- ------------------------------------
Signature Signature
Xxxxxx Xxxxxxxxxx Xxxx Xxxxxxx
---------------------------------- ---------------------------------------
Name (Print) Name (Print)
Chairman & CEO Chairman
---------------------------------- ---------------------------------------
Title (Print) Title (Print)
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