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EXHIBIT 10.13
CONFIDENTIAL TREATMENT
Confidential material has been omitted
and filed separately with the Securities
and Exchange Commission. Astericks
denote such omissions.
LICENSE AGREEMENT
THIS AGREEMENT is made as of the 28th day of May, 1996, between Best!Xxxx, Inc.,
of 000 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx, XXX ("Licensor") and Data-Tech
Software Pty. Ltd, of 0 Xxxxxxx Xxxx, Xxxxxxxxx, XXX 0000, Xxxxxxxxx
("Licensee").
WHEREAS:
A) Licensor is the owner of all right, title and interest in and to
certain small business accounting software products listed on EXHIBIT A
hereto (collectively, the "Bestware Products").
B) Licensor licenses other software currently in development, as listed
and described on EXHIBITS B and C hereto ("Casper" and "People
Manager TM", respectively), from affiliated entities, namely its
parent corporation, Best Programs, Inc. ("Best") and a sister
corporation, Abra Cadabra Software, Inc. ("Abra"). The term
"Casper" shall automatically be expanded to include any
modifications to the product provided by Licensor, Best or Abra to
Licensee during the term of this Agreement whether pursuant to
Section 4 hereof or otherwise.
C) Licensor has the right to license and/or sublicense (collectively
herein "license") tile Bestware Products, Casper and People Manager to
Licensee and to provide Licensee with source code to the such products.
D) Licensee desires to obtain a license and/or sublicense (collectively
herein "license") to copy, modify, make derivative works from, support,
distribute and use the Products (as defined below) pursuant to all the
terms of this Agreement.
E) Licensor agrees to license the Products to Licensee pursuant to all
the terms of this Agreement.
NOW THEREFORE, in consideration of the premises, covenants and agreements
contained herein, the parties hereto agree as follows:
1. DEFINITIONS
In this Agreement:
- "Bestware Customer Lists" means all customer and prospect lists for the
Bestware Products owned by Licensor as of the Effective Date, including
customer lists created by Licensor's international distributors which
are owned by Licensor by virtue of such distribution relationships and
are in Licensor's possession as of the Effective Date or, even if not
owned, are under Licensor's control or in Licensor's possession as of
the Effective Date, but only to the extent that Licensor has the right
with regard to such lists to sublicense its rights to Licensee
hereunder. but specifically excluding the DT-Australia Customer Lists
(as defined below).
- "Derivative Products" means all modified Software and Documentation
produced by Licensee or by a third party on Licensee's behalf after the
Effective Date, but specifically does not include the changes made by
Best to Casper or any other Product pursuant to Section 4 of this
Agreement which changes shall automatically become part of the Products
hereunder.
- "Documentation" means the installation instructions and user manual
together with all other documentation customarily supplied by Licensor
for use with the Products, or any part thereof, including portions
incorporated in Derivative Products.
- "DT-Australia Agreement" means that certain Vendor International
Distribution Agreement dated January 1, 1996 between Licensor and
Licensee, as the Pacific Rim distributor of the Bestware Products,
which shall be terminated by mutual agreement of the parties, as of the
Effective Date, pursuant to a termination agreement in the form attached
hereto as EXHIBIT D.
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- "DT-Australia Customer Lists" means all customer and prospect lists for
the Bestware Products owned by Licensee as of the Effective Date or,
even if not owned, that are under Licensee's control or in Licensee's
possession as of the Effective Date.
- "Effective Date" means the date first set forth above.
- "Independent Competitive Product" means a software product developed by
Licensee or any other entity other than Licensor that performs
substantially the same functions as any Product and which is not a
Derivative Product.
- "Low End Accounting Software Product" means an integrated general ledger
accounting software product that has the following characteristics: (a)
a customer base populated primarily by customers that have less than
fifty employees and less than $5 million in annual revenues; and(b) are
sold for less than $400 suggested retail.
- "Management Agreement" means a separate management agreement that
Licensor may enter into, in its sole discretion, pursuant to which it
will hire a U.S. entity to run its day-to-day U.S. operations. Licensor
shall permit Licensee to sublicense its rights hereunder to such entity
(the "Management Company"), provided that (i) Licensee obtains
Licensor's prior approval of the Management Company, which approval
shall not be unreasonably denied; and (ii) such Management Agreement
shall comply with all the terms of this Agreement.
- "Overlap Code" means that code in Abra's payroll software modules that
overlap with the payroll code in the MYOB payroll module, including
without limitation, the code modules designated as "PayEng.ccp" and
"PayEngl.ccp."
- "People Manager Territory" means the countries listed on EXHIBIT E to
this Agreement.
- "Products" means (a) the Bestware Products, as they exist on the
Effective Date of this Agreement including all versions thereof in
existence on the date of this Agreement which are owned by Licensor,
including the UK version which was created by Licensor's UK distributor,
Best Programs Ltd., (b) Casper, a product currently in development which
includes those elements described on EXHIBIT B hereto, and (c) People
Manager, a product currently in development which includes those
elements described on EXHIBIT C hereto. The term "Products" does not
include any separate products (i.e., products for which a separate
charge will be made in addition to any standard support/upgrade fee)
currently being developed by Licensor, any modifications to Casper or
People Manager developed by Licensor after the Effective Date (except as
specifically provided in Section 4 below) or any resulting new Licensor
products unless and until such time as the parties mutually agree in
writing to include such products in the definition of "Products."
- "SLA" means a software license agreement in the form previously supplied
by Licensor to Licensee permitting use of the Software by end user
customers, or any software license agreement form adopted by Licensee
which is no less protective of Licensor's proprietary rights in the
Products than Licensor's form, to the extent permitted by law in the
relevant territory.
- "Software" means that part of the Products consisting of computer
software programs.
- "Trade Marks" includes the name of Licensor and such other trademarks of
Licensor (whether registered or applied to be registered as a trade or
service xxxx, or unregistered) which are listed on EXHIBIT F to this
Agreement.
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2. LICENSES AND LICENSE RESTRICTIONS
2.1 Grants by Product
a) BESTWARE PRODUCTS. Subject to all the terms and conditions of
THE AGREEMENT, Licensor hereby grants Licensee an exclusive,
worldwide, nontransferable license to use, copy, modify, create
Derivative Products from, support, market and distribute, The
Bestware Products, and to sublicense such Bestware Products and
any Derivative Products created therefrom, in object code form
only, to end users for use in accordance with the terms of an
SLA. Licensee acknowledges that the exclusivity of the license
granted in this Section 2.1(a) is qualified by and subject to
(i) Licensor's retention, on Abra's behalf, of nonexclusive
rights to market, copy, distribute, modify, license and in any
other way, use the Overlap Code, and (ii) the existence of
certain pre-existing distribution agreements granted by Licensor
to various third parties prior to the date hereof A list of all
such agreements is set forth on EXHIBIT G hereto. As between
Licensor and Licensee, these agreements shall be treated as set
forth in Section 2.4 below.
b) CASPER. Subject to all the terms and conditions of the
Agreement, Licensor hereby grants Licensee a non-exclusive,
worldwide, nontransferable license to use, copy. modify, create
Derivative Products from, support, market and distribute,
Casper, and to sublicense Casper and any Derivative Products
created therefrom, in object code form only, to end users for
use in accordance with the terms of an SLA.
c) PEOPLE MANAGER. Subject to all the terms and conditions of the
Agreement, Licensor hereby grants Licensee (i) a non-exclusive,
nontransferable license to use, copy, modify, create Derivative
Products from, People Manager, (ii) an exclusive
-nontransferable license to market, distribute and support
People Manager and any Derivative Products created therefrom,
solely in the People Manager Territory, and (iii) all exclusive,
nontransferable license to sublicense People Manager and any
Derivative Products created therefrom, in object code form only,
to end users solely in (the People Manager Territory for use in
accordance with the terms of an SLA.
d) SUBLICENSING. The licenses granted to Licensee in subsections
(a) through (c) above may not be sublicensed to a third party
except (i) as specifically permitted in the case of
subdistribution agreements pursuant to Section 2.4 below and
(ii) that such rights may be sublicensed pursuant to the
Management Agreement.
2.2 Source Code License by Product -
a) BESTWARE PRODUCTS. Subject to all the terms and conditions of
this Agreement, including without limitation the source code
limitations in Section 3 below, Licensor hereby grants Licensee
an exclusive, non-transferable license to use, copy and modify
the source code version of the Bestware Products and related
Documentation to create Derivative Products thereof and to
incorporate the source and/or the object code or portions
thereof in the Derivative Products, subject to Licensor's
retained rights as set forth in Section 2.1(a) above.
b) CASPER AND PEOPLE MANAGER. Subject to all the terms and
conditions of this Agreement, including without limitation the
source code limitations in Section 3 below, Licensor hereby
grants Licensee a non-exclusive, non-transferable license to
use, copy and modify the source code version of Casper and
People Manager and related Documentation to create Derivative
Products thereof and to incorporate the source and/or the object
code or portions thereof in the Derivative Products. In the case
of People Manager, the Derivative Works created may only be for
use in the People Manager Territory.
c) SUBLICENSING. The licenses granted to Licensee in subsections
(a) and (b) above may not be sublicensed to a third party except
that such rights only be sublicensed pursuant to the
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Management Agreement or as reasonably necessary to allow for
localization of the Products within the authorized territories.
2.3 Bestware Customer List License - Subject to all the terms and conditions
of this Agreement, Licensor hereby grants Licensee an exclusive,
non-transferable license to use the Bestware Customer Lists solely in
its marketing, support and distribution of the Bestware Products, the
Derivative Products, the Independent Competitive Products, and Casper
during the term of this Agreement. This license may not be sublicensed
other than (i) pursuant to the Management Agreement, or (ii) pursuant to
customer list rental arrangements of the type conducted by Licensor
prior to the Effective Date and provided that no such rental shall be
made to any manufacturer or distributor of products which compete with
the Products for the purpose of promoting any product that competes with
any of the Products.
2.4 Dealers/Distributors - During the term of this Agreement, Licensee's
right to sublicense its distribution rights to third parties is solely
as set forth in this Section 2.4, except that the requirements set forth
in subsection (a) below shall not apply to any of the Licensor
distribution agreements set forth on EXHIBIT G, which are entered into
between Licensee and such distributor after the Effective Date, if such
are executed under the same (or substantially similar) terms as those
originally agreed to by Licensor.
a) APPOINTMENT - Licensee shall have the right to sublicense
distributors and dealers to distribute the Products to
end-users, subject to the terms of this Section 2.4. Licensee
agrees that subdistributors and dealers authorized by Licensee
to distribute the Products shall assume obligations relating to
the marketing and distribution of the Products equivalent to
those assumed by Licensee hereunder, with regard to (a) the
protection of Licensor's Trade Marks, Products and confidential
information; (b) record keeping and inspection, and (c)
disclaimer of liability. Further, Licensee shall limit the scope
of rights granted to any such party such that the rights so
granted in no way exceed the rights granted to Licensee
hereunder (in particular, the territorial limitations of the
People Manager product). Further, Licensee agrees to indemnify
Licensor and hold Licensor harmless from any and all claims
brought against Licensor by any such distributor/dealer or
against any damages arising from any such distributor/dealer
relationship, unless such claims arise due to the negligent act
or misconduct of licensor. In no event shall Licensee grant any
distributor or dealer access or rights to any Product source
code without Licensor's prior written consent. All distributor
and dealer agreements shall automatically terminate upon
termination of this Agreement due to default by Licensee.
b) BREACH OF OBLIGATIONS - If at any time during the term of this
Agreement, Licensor has reason to believe that any distributor
or dealer is in violation of any material provision of its
distributor or dealer agreement, including without limitation
those provisions relating to treatment of Licensor Trade Marks
or confidential information, Licensor shall so notify Licensee
and the parties shall consult in good faith to determine the
action to be taken by Licensee under the applicable distributor
or dealer agreement. Licensee shall agree to take all reasonable
actions, up to and including legal action against any
distributor or dealer, if such action is reasonably necessary to
protect Licensor's proprietary rights. Licensee shall pay the
costs, expenses and attorneys' fees of any such action. Licensor
agrees that it will cooperate fully with Licensee in prosecuting
or settling any such claim and shall negotiate with Licensee
reasonably and in good faith as necessary with regard to
continuing prosecution or settling the claim. In addition, each
distributor agreement shall provide that Licensor shall have the
right to enforce the terms of such agreement as long as this
Agreement remains in effect.
c) DT-AUSTRALIA AGREEMENT - On the Effective Date, the parties
shall mutually agree to terminate the DT-Australia Agreement,
pursuant to a termination agreement in the form attached hereto
as EXHIBIT D.
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d) OTHER EXISTING LICENSOR DISTRIBUTION AGREEMENTS - Promptly after
the Effective Date, Licensor, in conjunction with Licensee (or
the Management company, if Licensee so designates), will notify
all of the distributors listed on EXHIBIT G, that it is
terminating its relationship with such distributor as soon as
legally permitted under the terms of Licensor's then-current
agreement with each such distributor. As soon as possible after
the Effective Date, Licensee agrees to undertake a commercially
reasonable effort to execute new agreements with such parties,
During the period between the Effective Date and the date of
termination of these agreements (the "Transfer Period"),
Licensee agrees that it shall serve as Licensor's agent in
relation to such agreements and shall fulfill all of Licensor's
obligations thereunder. In consideration therefore, Licensee
shall be entitled to collect and retain all fees paid by such
third parties to Licensor which relate to transactions occurring
under such agreements after the Effective Date. The mechanics
of operation of such distribution agreements during the Transfer
Period, as between Licensor and Licensee, shall be as set forth
in detail in a separate agreement of even date herewith between
Licensor and the Management Company, if any (the "Transition
Agreement"). If there is any conflict between the terms of this
paragraph and the terms of the Transition Agreement dealing with
management of those distribution agreements listed on EXHIBIT G,
Licensor and Licensee agree that the terms of the Transition
Agreement shall govern. Licensor agrees to indemnify Licensee
and hold Licensee harmless from any and all claims brought
against Licensee by any such distributor/dealer (a) for improper
termination of its distribution agreement by Licensor, or (b)
under its distribution agreement during the Transfer Period;
provided, however that Licensor shall have no liability for any
such claims that arise due to the negligent act or misconduct of
Licensee, whether in its role as Licensor's agent or otherwise.
Conversely, Licensee agrees to indemnify Licensor and hold
Licensor harmless from any and all claims brought against
Licensor by any such distributor/dealer under its distribution
agreement during the Transfer Period, which arise from the
negligent act or misconduct of Licensee, whether in its role as
Licensor's agent or otherwise.
e) ROYALTIES - All royalties paid to Licensee from its
subdistributors shall be commercially reasonable.
2.5 End User Licensing - With every Product and Derivative Product
distribution by Licensee or on Licensee's behalf, Licensee shall include
an SLA. In addition, during the term of this Agreement, each such
agreement shall provide that Licensor shall have the right to enforce
the terms of such agreement. Licensee agrees to use its best efforts to
enforce the obligations of its agreements and to inform Licensor
immediately of any known breach of such obligations.
2.6 Relationship between the Parties - During the term of this Agreement,
Licensee shall act as an independent contractor and shall neither be,
nor represent itself to be, an employee or agent of Licensor except as
specifically permitted herein. Licensee shall in no event have authority
to bind or incur any liability or make any commitment on behalf of
Licensor. Nothing in this Agreement shall be construed as constituting
Licensee and Licensor as partners, or as creating the relationship of
employer and employee, franchiser and franchisees master and servant, or
principal and agent (except as specifically permitted herein) between
them.
2.7 Licensor Rights - Notwithstanding any other provision of this Agreement,
neither Licensor nor any of its affiliates shall be treated as in breach
of any obligation to Licensee in relation to:
a) Any copy of the Bestware Products distributed or marketed before
the Effective Date, or any copy of People Manager distributed or
marketed other than by Licensor into the People Manager
Territory before the Effective Date;
b) Any copy of People Manager imported into the People Manager
Territory after the Effective Date for supply within the People
Manager Territory where such copy is lawfully marketed in parts
outside the People Manager Territory, but Licensor will use
reasonable efforts, unless prohibited by law, to discourage such
activities if timely notified of their occurrence by the
Licensee;
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c) Any Licensor products other than the People Manager Products in
the People Manager Territory, and the Bestware Products.
2.8 Competing Products -
LICENSEE:
a) DURING THE TERM. Licensee may during the term of this Agreement
develop, manufacture or distribute goods which compete with the
Products (including any Independent Competitive Product), as
long as Licensee pays Licensor a royalty on the receipts
therefrom as part of the revenue calculation set forth on
EXHIBIT H hereof.
b) AFTER TERMINATION FOR CAUSE BY LICENSOR DUE TO DEFAULT BY
LICENSEE. Further, in the case of termination of this Agreement
by Licensor due to default by Licensee, Licensee shall not
directly or indirectly as an individual proprietor, partner,
stockholder, officer, employee, director, joint venturer,
investor, lender, or in any other capacity whatsoever (other
than as the holder of not more than five percent (5%) of the
total outstanding stock of a publicly held company), for one
year after the date of such termination, engage in the business
of developing, marketing or distributing goods which compete
with the Products.
LICENSOR:
c) DURING THE TERM. During the term of this Agreement, Licensor
shall not directly or indirectly as an individual proprietor,
partner, stockholder, officer, employee, director, joint
venturer, investor, lender, or in any other capacity whatsoever
(other than as the holder of not more than five percent (5%) of
the total outstanding stock of a publicly held company), engage
in the business of developing, marketing or distributing a Low
End Accounting Software Product.
d) AFTER TERMINATION FOR CAUSE BY LICENSEE DUE TO DEFAULT BY
LICENSOR. For the period of four years from the Effective Date
of this Agreement, Licensor shall not directly or indirectly as
an individual proprietor, partner, stockholder, officer,
employee, director, joint venturer, investor, lender, or in any
other capacity whatsoever (other than as the holder of not more
than five percent (5%) of the total outstanding stock of a
publicly held company), engage in the business of developing,
marketing or distributing a Low End Accounting Software Product.
e) EXCLUSIONS. Nothing in Sections 2.8(c) or 2.8(d) is intended to
in any way restrict Licensor, Best or Abra's right to develop,
market, distribute, or sublicense (i) any product based on,
related to, or derived from the Casper or People Manager
technology (which right with regard to People Manager, during
the term of this Agreement, shall be restricted to areas outside
of the People Manager Territory), as long as such derivative
product is not a Low End Accounting Software Product, or (ii) an
integrated payroll module with Casper, People Manager (which
right with regard to People Manager, during the term of this
Agreement, shall be restricted to areas outside of the People
Manager Territory) or any other software product, which module
may or may not include the Overlap Code, in Licensor's sole
discretion; or (iii) a corporate budgeting product. Further,
notwithstanding Sections 2.8(c) or 2.8(d), in the event that
Licensor, Best or Abra shall merge with, or acquire the assets
of, another business, and such business was developing and/or
marketing prior to the merger or acquisition, in addition to
other products, one or more Low End Accounting Software
Products, the restrictions of Section 2.8(c) and 2.8(d) shall
not apply to such Low End Accounting Software Product(s) after
completion of the merger or acquisition, on the grounds that the
competition between the Bestware Product(s) and such Low End
Accounting Software Products pre-existed such merger or
acquisition.
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f) BEST/ABRA AGREEMENT. On or before the Effective Date, Licensor
shall obtain the written agreement of Best and Abra to abide by
the terms of Sections 2.8(c) and (d).
2.9 Activities relating to People Manager outside the People Manager
Territory - Unless otherwise agreed by Licensor in writing, Licensee
shall not at any time either during or after the term of this Agreement
and in relation to People Manager, seek customers, establish any branch
or maintain any distribution depot for the distribution of People
Manager outside the People Manager Territory without written
authorization from the Licensor.
3. SOURCE CODE.
3.1 Permitted Uses. Promptly after the Effective Date of this Agreement,
Licensor shall provide a copy of Product source code to Licensee, and
Licensor hereby grants Licensee the right to use such copy in order for
Licensee to modify and enhance the Products for the purpose of producing
Derivative Products for end-users that are competitive in the
marketplace and for supporting and repairing the Products and any such
Derivative Products.
3.2 Obligations - During the term of this Agreement, Licensee shall have no
rights to disclose, sell, license, distribute, encumber, or in any way
transfer the source code, or any portion thereof, to any third party
without Licensor's prior written approval and will at all times hold the
source code in the strictest confidence. Licensee may give access to the
source code only to those Licensee employees and consultants, or those
employees and consultants of the Management Company, if any, who must
access the code in order to make the modifications permitted hereunder.
All such employees and consultants who are given access to the source
code must sign, or have signed, a confidentiality agreement imposing
confidentiality obligations substantially similar to those set forth in
this Section 3.2. During the term of this Agreement, Licensee agrees
that it shall keep (and shall require the Management Company, if any, to
keep) written records of all those persons who have access to Licensor
Product source code, and shall provide such records to Licensor if
Licensor so requests in connection with a bona fide investigation of
copyright infringement of any Licensor Product or for any legitimate
business reason. Licensee shall use its best efforts (and shall require
the Management Company, if any, to commit to the same level of effort)
to safeguard the Licensor Product source code and to ensure that no
unauthorized persons have access to the source code, and that no persons
authorized to have such access (i.e., specified employees and
consultants) shall take any action which would be in violation of either
their confidentiality agreement or this Agreement if taken by Licensee.
With regard to all Products, the foregoing obligations relating to
confidentiality and nondisclosure will subsist during the term of this
Agreement and (i) with regard to People Manager and Casper source code,
will survive for five (5) years after the date of expiration or any
termination of this Agreement and (ii) with regard to the Bestware
Products source code, will survive for five (5) years after the date of
any termination of this Agreement by Licensor due to default by
Licensee.
3.3 Ownership of Changes. All Derivative Products created by any third party
on Licensee's behalf, including without limitation those made by the
Management Company, if any, shall be owned by Licensee. During the term
of the Agreement, Licensee shall obtain written assignments of ownership
from any such third parties.
3.4 Retention Procedures; Escrow.
a. Within thirty days, Licensee agrees to institute a source and
customer list retention procedure whereby, no less than once per
quarter, Licensee will send the then current version of the
Bestware Customer Lists, the DT-Australia Customer Lists and
the Product source code (including all Derivative Product
source code) to an off site, secure, third party record
retention facility. During the term of this Agreement, Licensor
shall at its request, during normal business hours, be given
access to the records so retained in order to verify that the
obligations under this paragraph are being met. Licensor's right
to such access shall terminate automatically upon expiration of
this Agreement or termination of this Agreement by Licensee due
to default by Licensor. Upon any
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termination of this Agreement by Licensor due to default by
Licensee, Licensee shall promptly instruct the third party
record retention facility to turn over all materials in its
possession to Licensor. Any disputes relating to the release of
the materials from the third party record retention facility
shall be settled by arbitration. As appropriate, Licensee may
delegate some or all of the obligations set forth in this
subsection 3.3(a) to the Management Company, if any; provided
that the Management Agreement contain obligations equivalent to
those set forth in this subsection.
b. In addition, within thirty days of the Effective Date, Licensee
and Licensor shall enter into an escrow agreement mutually
acceptable to Licensee and Licensor which shall remain in effect
during the term of this Agreement. The escrow agreement shall
provide, in general, that no less frequently than once every six
months during the term of this Agreement, Licensee shall deliver
the source code of the then current Products, and Derivative
Products, plus the then current Bestware and DT Australia
Customer Lists, to the escrow agent. Licensor shall be given
access to such source code and Customer Lists in the event that
this Agreement terminates due to breach by Licensee. If
termination occurs due to expiration or due to breach by
Licensor, the escrow agent will deliver all of the escrow
materials to Licensee. Any disputes relating to the release of
the escrowed materials from escrow shall be settled by
arbitration, as described in more detail in the escrow
agreement. Licensor shall pay all escrow fees. The escrow
agreement shall terminate upon delivery of the escrowed
materials to either Licensee or Licensor.
3.5 Breach of Section 3 Obligations. Any violation of the terms of Sections
3.2 and 3.3 by Licensee shall be considered a material breach of this
Agreement by Licensee. Licensee shall promptly report to Licensor any
violation of Section 3.2 and shall take further steps as may be
requested by Licensor to prevent or remedy any such violation, at
Licensee's cost. In addition, because unauthorized use or transfer of
the Licensor Product source code or the Customer Lists would diminish
substantially the value of such program and irrevocably harm Licensor,
if Licensee breaches the provisions of Section 3.2, Licensor shall be
entitled to injunctive and/or other equitable relief, in addition to
other remedies afforded by this Agreement or by law, to prevent or
remedy a breach of Section 3.2.
3.6 Return of Materials - Upon any termination of this Agreement due to
default by Licensee, Licensee shall immediately return all copies of the
Product source code to Licensor, including all source code for any
Derivative Products created during the term of this Agreement, and the
Bestware Customer Lists.
4. CASPER MODIFICATIONS. Licensor agrees that during the eighteen month
period commencing on the Effective Date, it has contracted with Best to have
Best provide Licensee with up to 600 hours of technical consulting support on
Casper, free of charge, with no more than 300 hours being utilized in the final
six months of such period. The parties agree that such 600 hours may be utilized
by Licensee towards Casper development in accordance with the procedure set
forth in detail in EXHIBIT I. Upon request, during the term of this Agreement,
additional Casper development services shall be provided by Best to Licensee at
a specified rate as set forth in EXHIBIT I. Further, during the twelve month
period commencing on the Effective Date, Best has committed to Licensee that it
will deliver to Licensee any enhancements to Casper that it creates during such
period provided, however, that nothing in this sentence shall be interpreted as
a commitment on Licensee or Best's part to create any such enhancements.
5. OWNERSHIP OF PRODUCTS AND CUSTOMER LISTS
5.1 Products Existing as of the Effective Date - Licensee acknowledges and
agrees that all Products licensed to Licensee by Licensor hereunder,
whether in object or source code form, are and shall remain the sole
and exclusive property of Licensor, Best or Abra, as applicable.
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5.2 Modified Products Delivered by Licensor, Best or Abra. Any modified
Products delivered to Licensee during the term of this Agreement by
either Licensor, Best or Abra and whether pursuant to Section 4 or
otherwise, are and shall remain the property of such delivering party.
5.3 Derivative Products Created by Licensee Hereunder - Licensor agrees that
any Derivative Products created by Licensee hereunder shall be and
remain the sole and exclusive property of Licensee, except for any
elements of such Derivative Products that consist of Licensor Product
source code, which are and shall remain the sole and exclusive property
of Licensor. The ownership rights of Licensee set forth in this
paragraph are further subject to the transfer of ownership provisions
set forth in Section 6 below.
5.4 Customer Lists - The Bestware Customer Lists are and shall remain the
sole and exclusive property of Licensor.
6 COMMENCEMENT, DURATION AND TERMINATION
6.1 Commencement and Duration - This Agreement shall commence on the
Effective Date and, unless earlier terminated as herein provided or
renewed by the mutual written agreement of the parties, shall expire on
the date upon which Licensee has fully paid the total amount of royalty
required by this Agreement as though this Agreement had run its full
four year term, as set forth in EXHIBIT H. Such a termination is
referred to herein as "expiration."
6.2 Termination by Licensor - Licensor shall have the right without
liability to Licensee to terminate this Agreement forthwith upon written
notice in the event that Licensee shall:
a) Be in breach of any material term or any obligation on its part
to be performed and shall have failed to remedy such breach
within sixty (60) days from the date of written notice
specifying the breach and requiring its remedy; or
b) Be adjudged insolvent or bankrupt, take or have taken against it
any proceedings or action seeking relief, reorganization or
arrangement under any laws relating to insolvency (excluding an
intended reorganization undertaken with the approval of the
other party), make or suffer any assignment for the benefit of
creditors, suffer the appointment of any receiver, liquidator,
or trustee of any or its property or assets, or suffer
liquidation, dissolution, or winding up of its business or any
analogous action taken on account of its financial position; or
c) Assign this Agreement to a third party in violation of the
assignment provisions set forth herein; or
d) Not achieve the royalty cap for any twelve month period as set
forth on EXHIBIT H hereof; provided however that for any twelve
month period in which Licensee does not achieve the royalty cap,
Licensee shall have the right to make a lump sum payment to
Licensor of the deficiency at the time it makes its last payment
of royalties for such twelve month period.
Termination by Licensor pursuant to this Section 6.2 may be referred to
herein as "termination due to default by Licensee" or "termination due
to breach by Licensee."
6.3 Termination by Licensee - Licensee shall have the right without
liability to Licensor to terminate this Agreement forthwith upon written
notice in the event that Licensor shall:
a) Be in breach of any material term or any obligation on its part
to be performed and shall have failed to remedy such breach
within sixty (60) days from the date of written notice
specifying the breach and requiring its remedy; or
b) Be adjudged insolvent or bankrupt, take or have taken against it
any proceedings or action seeking relief, reorganization or
arrangement under any laws relating to
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insolvency (excluding an intended reorganization undertaken with
the approval of the other party), make or suffer any assignment
for the benefit of creditors, suffer the appointment of any
receiver, liquidator, or trustee of any of its property or
assets, or suffer liquidation, dissolution, or winding up of its
business or any analogous action taken on account of its
financial position; or
c) Assign this Agreement to a third party in violation of the
assignment provisions set forth herein.
Termination by Licensee pursuant to this Section 6.3 may be referred to
herein as "termination due to default by Licensor" or "termination due
to breach by Licensor."
6.4 Consequences of Expiration or Termination by Licensee due to Default by
Licensor - Upon termination of this Agreement due to expiration or due
to termination by Licensee due to default by Licensor:
a) No further royalties shall be paid by Licensee to Licensor under
this License Agreement.
b) Any provision of this Agreement expressly stated to survive, or
impliedly surviving, termination shall remain in full force and
effect.
c) All licenses granted by Licensor to Licensee hereunder shall
automatically terminate on the date of expiration or termination
and Licensee shall have no further right to copy, modify,
distribute or market any Product or Derivative Product (unless
Product source code is eliminated therefrom), or in any way use
the Bestware Customer Lists, or the Trade Marks. No SLAs shall
be affected, which shall continue in full force in accordance
with their terms.
d) Licensee shall retain any and all right, title and interest that
Licensee may have in and to any of the Derivative Products by
virtue of the changes it has made to the Products hereunder.
e) No rights of either party accrued at the date of termination
shall be affected or prejudiced.
6.5 Consequences of Termination Due to Default by Licensee - Upon
termination of this Agreement by Licensor due to Default by Licensee:
a) Payment by Licensee to Licensor of any royalties owed or deemed
to be owing shall be handled as set forth in that certain Deed
of Company Charge signed by Licensor, a form of which is
attached hereto as EXHIBIT J (the "Charge"), and in such other
security documents and guaranties as may have been provided
pursuant to Section 8.1 below due to the fact that termination
due to default by Licensee shall constitute and "Event of
Default" under such document(s).
b) Any provision of this Agreement expressly stated to survive, or
impliedly surviving, termination shall remain in full force and
effect.
c) Licensee shall assign to Licensor and agrees to assign to
Licensor, irrevocably and in perpetuity, any and all right,
title and interest that Licensee may have in and to any of the
Products and Derivative Products. Licensee further agrees,
during and subsequent to the term of this Agreement, entirely at
Licensee's expense and without further consideration, to
document the assignment of all right, title, and interest in
such products to Licensor. Promptly upon Licensor's request,
Licensee agrees that Licensee will execute any appropriate
assignment document.
d) All licenses granted by Licensor to Licensee hereunder shall
automatically terminate on the date of termination of this
Agreement and Licensee shall have no further right to
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copy, modify, distribute or market any Product or Derivative
Product, or in any way use the Bestware Customer Lists or the
Trade Marks. No SLAs shall be affected, which shall continue in
full force in accordance with their terms.
e) Licensee shall give instructions so that all materials being
held by third parties pursuant to the terms of Section 3.4 above
shall be released to Licensor.
f) No rights of either party accrued at the date of termination
shall be affected or prejudiced.
6.6 Licensee's Alternative Remedy in the Case of Licensor Bankruptcy.
Licensor acknowledges that if a trustee in bankruptcy, or Licensor as a
debtor-in-possession in a case under the Bankruptcy Code rejects this
Agreement, Licensee may elect, in its sole discretion, instead of
terminating the Agreement for Licensor default as provided in Section
6.3 above, to retain its rights under this Agreement as provided in
Section 365(n) of the Bankruptcy Code, provided all royalties are paid
to Licensor when due hereunder. Upon written request of to Licensor or
the Bankruptcy Trustee, Licensor or such Bankruptcy Trustee shall not
interfere with the rights of Licensee as provided in this Agreement.
7. DUTIES OF LICENSEE
7.1 Best Efforts Obligation. Licensee shall use its best efforts to maintain
the Products so that they are competitive in the marketplace and shall
vigorously and aggressively promote the Products, subject to Licensee's
right to determine, in its best business interests, to discontinue
maintaining and updating a product in any particular geographic area.
7.2 Marketing and Advertising - Licensee shall indemnify and hold Licensor
harmless from all damages incurred by Licensor as a result of Licensee's
advertising or promotional materials with respect to the Products.
7.3 Support - It is a condition of this Agreement that Licensee (including
its distributors and dealers) shall establish and thereafter operate an
efficient support service in relation to the Products. In no
circumstances will Licensor, or any affiliate of Licensor, be required
to provide support, modifications or updates for the Products, other
than that to be provided by Best as detailed in Section 4 above.
Licensee shall be solely responsible for supporting the Products and for
training its dealers and distributors in respect of support.
7.4 Warranty Work, etc. - Licensee shall provide all warranty service for
end users for all Products, whether sold, licensed or otherwise
distributed by Licensor prior to the Effective Date or by Licensee after
the Effective Date.
7.5 Compliance with Laws, etc. - Licensee shall comply with all laws,
statutes and regulations affecting the Products and/or the performance
by Licensee of its obligations hereunder. Licensee agrees that it will
not sell, license, or re-export the Products so as to violate any of the
export control laws of the United States.
7.6 Reports - Licensee shall submit to Licensor, within thirty days of
Licensor's written request therefor, which request may be made no more
than quarterly, written sales and activity reports in such form and at
such intervals as Licensor shall require. Such reports may include
shipments of Products, Dollar volume, etc. If the Management Company is
to maintain such records on Licensee's behalf pursuant to the Management
Agreement, Licensee shall insure that such reports are timely delivered
by the Management Company to Licensor.
7.7 Inspection - Licensee shall allow representatives of Licensor on
reasonable notice and during normal working hours, to examine Licensee's
place(s) of business and/or inventories of the Products for the purpose
of verifying to the satisfaction of the Licensor that Licensee is
performing its obligations under this Agreement; Licensee shall use its
best efforts to procure
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rights allowing Licensor on reasonable notice and during normal working
hours access to the Management Company's and sub-distributors' places of
business for similar inspections.
7.8 General Information and Assistance - Licensee shall immediately advise
Licensor of any legal notices served on Licensee that might affect
Licensor.
7.9 Records. Promptly after the Effective Date, Licensor shall provide
Licensee with access to such books, records and accounts (or copies
thereof), including financial information, correspondence, production
records, and other similar information as necessary for Licensee to
fully exploit the licenses granted hereunder. Such books, records and
accounts shall remain the property of Licensor and Licensor shall have
the right to remove such books, records and accounts from Licensee's
premises at any time, provided that Licensor shall allow Licensee
sufficient time to make copies of any such books, records and accounts
it reasonably needs to retain in order to operate its business. With
regard to any records that Licensor maintains at a separate facility,
Licensee shall have the right for a period of three years following the
Effective Date to have reasonable access to those books, records and
accounts, including financial and tax information, correspondence,
production records, employment records and other records to the extent
any of the foregoing relates to the business of developing, marketing
and distributing the Products, and solely for the purpose of complying
with its obligations under applicable securities, tax, environmental,
employment or other laws and regulations, or any other reasonable
purpose relative to the operation of its ongoing business. With regard
to those books, records and accounts of Licensor still in Licensee's
possession at the time of expiration of this Agreement or termination
due to breach by Licensor, Licensee shall maintain such books, records
and accounts, including financial information, correspondence,
production records, and other similar information until at least June 1,
2000. Thereafter, Licensee may destroy such books, records and accounts
after giving no less than thirty days prior written notice to Licensor
which notice shall give Licensor the opportunity to take possession of
breach by Licensee, Licensee will promptly return all Licensor books,
records and accounts to Licensor.
7.10 References. No written or printed material, including, without
limitation, any catalogue, brochure, sales or any kind of promotion
material or other selling material, that contains the name of or
references Best, Best Programs Ltd, Best Programs - Canada, or Abra
shall be used publicly or distributed by Licensee until such names or
references are deleted or covered by a sticker acceptable to Best or
Abra, as applicable. If there is any conflict between the terms of this
paragraph and the terms of the Transition Agreement dealing with the use
of materials referencing Best or Abra after the Effective Date, Licensor
and Licensee agree that the terms of the Transition Agreement shall
govern.
7.11 Affirmative Covenants - From the Effective Date of this Agreement until
termination or expiration hereof, Licensee covenants and agrees that it
and its subsidiaries shall:
FINANCIAL REPORTS.
a) Furnish to Licensor, within 30 days after the end of each
quarter, an unaudited financial report of the Licensee which
report shall include the following: (i) a profit and loss
statement and cash flow statement for such quarter, together
with a cumulative profit and loss statement and cash flow
statement from the first day of the current fiscal year to the
last day of such quarter, which statements shall be comparative
to the corresponding period of the prior fiscal year and shall
be prepared in accordance with Australian applicable accounting
standards and Australian Accounting Standards and Statements of
Accounting Concepts, consistently applied; and (ii) a balance
sheet as of the last day of such quarter, which balance sheet
shall be prepared in accordance with Australian applicable
accounting standards and Australian Accounting Standards and
Statements of Accounting Concepts, consistently applied.
b) Furnish to Licensor, within 120 days after the end of each
fiscal year of the Licensee, "Audited" financial statements of
the Licensee which shall include a profit and loss
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statement and cash flow statement for such fiscal year and a
balance sheet as of the last day thereof, each prepared in
accordance with Australian applicable accounting standards and
Australian Accounting Standards and Statements of Accounting
Concepts, consistently applied and accompanied by the auditors'
report of a reputable Charted Accountant as may be chosen by the
Licensee.
In the context of this subparagraph, "Audited" shall refer to an
independent Investigating Accountant's Report prepared in
relation to the end of year financial statements. The report
should specifically address the verification of the balance
sheet accounts in relation to cash balances, bank balances,
accounts receivable balances, accounts payable balances together
with investigation into the correctness of the Gross Revenue (as
defined in Exhibit H) for the year, compliance with negative and
affirmative covenants, and reporting as to any material
differences or balances in the financial statements.
TAX RETURNS AND PAYMENT OF TAXES.
c) File all lawful tax returns and other reports which it is
required by law to file, maintain adequate reserves for the
payment of all taxes imposed upon it, its income, its sales, or
its profits, or upon any assets or properties belonging to it
and pay and discharge all such taxes prior to the date on which
penalties attached thereto.
BUSINESS INSURANCE.
d) Maintain insurance coverage by financially sound and reputable
insurers in such forms and amounts and against such risks as are
customary for corporations of established reputation. Provide a
certificate of insurance to Licensor within ninety days of the
Effective Date and on an annual basis.
INSURANCE.
e) Maintain life insurance coverage on Xxxx Xxxxxx, and Xxxxx
Xxxxxxx by financially sound and reputable insurers in such
forms and amounts and against such risks as are customary for
corporations of established reputation. Such amount should cover
at least one-sixth of any unpaid royalty obligation per person.
Proceeds from this policy necessary for payment of such royalty
obligation should be escrowed for payment to Licensor should
Licensee's revenues not be sufficient to satisfy all royalty
obligations set forth in Exhibit H at any time during the
remainder of this Agreement's four year term. Provide a
certificate of insurance to Licensor within ninety days of the
Effective Date and on an annual basis.
7.12 Negative Covenants - From the Effective Date of this Agreement until
termination or expiration hereof, Licensee covenants and agrees that it
and its subsidiaries shall not take the following actions without prior
approval by Licensor:
a) Merge or consolidate with or acquire all or any substantial
portion of the assets or capital stock of any entity in any
transactions involving payments by Licensee of consideration
having a total fair market value in excess of the "Limitation
Amount." For purposes of this Section 7.12, the term "Limitation
Amount" shall mean, as of the Effective Date, $1 million dollars
(the "Base Amount"), and thereafter, an amount calculated as:
(I) the Base Amount, plus (II) the amount of royalties actually
paid under the License Agreement multiplied by 120%.
b) Except for sales, leases, transfers or other dispositions of
assets made in the ordinary course of business, sell, lease,
transfer, license or otherwise dispose of any of its or its
subsidiaries' assets or properties (including transfers among
the Licensee and its subsidiaries) having a fair market value in
excess of 20% of the Net Book Value of the Licensee and its
subsidiaries, either singularly or in the aggregate. For
purposes of this
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Subsection (b), the term "Net Book Value" shall mean the net
assets of the business following add-back of the Unit Holder
loan balances.
c) In any Agreement year, until the royalty cap for such Agreement
year has been fully paid to Licensor, and Licensee has
accumulated and reserved at least 25% of the next year's royalty
cap, (I) declare or pay dividends upon any of Licensee's capital
stock or make any distributions in respect of Licensee's profits
or distribute Licensee's assets or properties to any person
except for the crediting of shareholder and unit holder loan
accounts, stock dividends or splits, nor (II) lend money to
shareholders, unit holders and/or directors, or repay any
shareholder or unit holder loans, except, in either case, as
required to comply with necessary trust, accounting or taxation
law.
d) Enter into any agreement or arrangement with any affiliate
whereby Licensee agrees to pay management fees, service fees,
licensing fees, consulting fees, research and development fees,
royalties or any other form of compensation to such affiliate,
except for fees or compensation for services rendered where such
fees or compensation are comparable to similar fees which would
be paid to unrelated third parties for the same or similar
services.
e) Pay compensation to any officer or director or senior manager of
Licensee representing an increase in excess of 15% of their base
compensation from the prior year (which compensation does not
include distributions or commissions). Licensee agrees that
commissions and bonuses, if granted shall be granted consistent
with historical commission or bonus plans or pursuant to plans
approved by the Licensor.
f) [INTENTIONALLY DELETED]
g) Commit or incur debt financing in excess of the Limitation
Amount (excluding any debt owed to Licensor) and, shall not
create, incur, assume or suffer to exist any Senior Indebtedness
in excess of the lesser of (I) the Limitation Amount, and (II)
an amount determined pursuant to the following table:
Agreement Year Amount of Senior Indebtedness Permitted
-------------- ---------------------------------------
First None
Second $500,000
Third $1.5 million
Fourth $2.5 million
The term "Senior Indebtedness" shall mean (x) all future
indebtedness of Licensee for money borrowed from any bank, trust
company, insurance company or other private, commercial or
governmental lending institutions, up to the limits set forth
above, regardless of whether such indebtedness is secured by
assets of Licensee, and to which indebtedness the royalties owed
to Licensor hereunder are expressly subordinated in writing.
With regard to any indebtedness that is junior in payment to
Licensor, the promissory note of Licensee evidencing such junior
indebtedness shall contain subordination provisions effectively
subordinating the junior creditor's indebtedness to that of
Licensor and any holder of Senior Indebtedness,
7.13 Board Observer - From the Effective Date of this Agreement until
termination or expiration hereof, Licensee covenants and agrees that
Licensor shall have the right to designate one representative who shall
be entitled to attend all Licensee Board of Directors Meetings. Such
Board of Directors shall meet no fewer than once annually and may hold
meetings by teleconference. Licensee will give Licensor's representative
reasonable prior notice of any Licensee Board of Directors meeting. The
representative designated by the Licensor shall be entitled to
reimbursement of all reasonable out-of-pocket expenses incurred in
connection with attendance at such meeting provided, however, that such
representative must obtain prior approval from Licensee for expenses
greater than One Thousand Dollars ($ 1,000) per meeting. Any action
taken by Licensor's representative shall not be deemed or otherwise
construed as an act or omission by Licensor.
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8. ROYALTIES AND PAYMENTS
8.1 Royalties - In consideration of the licenses granted to Licensee
hereunder, Licensee shall pay Licensor a royalty calculated as set forth
on EXHIBIT H to this Agreement. For each twelve month period during the
term of this Agreement, measured from the Effective Date, Licensee shall
not pay more than the royalty cap amount set forth for such year on
EXHIBIT H. Consequently, when any year's cap is satisfied, Licensee
shall have no further obligation to pay or accrue further royalties in
such year, accrual to begin again on the next anniversary of the
Effective Date. The annual royalty caps shall be secured by the Charge
which shall be executed by Licensee as of the Effective Date. Further,
the Management Company, if any, and any company affiliated with Licensee
that is established after the Effective Date, shall, promptly upon
Licensor's request enter into a Security Agreement and a Guaranty,
substantially in the form set forth on EXHIBITS K AND L hereto (which
form may need modification depending on the country/jurisdiction
involved). In addition, Licensee's Australian directors shall execute
a Deed in the form attached as EXHIBIT M.
8.2 Payment Terms - Royalties are to be accrued monthly. Royalties must be
paid by the fifteenth day of the month following each Agreement quarter.
Unless otherwise agreed by Licensor in writing, Licensee shall pay by
wire transfer to a bank account designated by Licensor. All payments
shall be made in US dollars.
8.3 Taxes, Imposts, Duties, etc. - All payments required under this
Agreement are exclusive of taxes, imposts and duties of whatever nature
and howsoever arising, and Licensee shall bear and be responsible for
the payment of all such taxes (including without limitation Value Added
Tax or GST), imposts and duties (except for taxes based on Licensor's
income other than credited income taxes paid by Licensee in Australia on
behalf of Licensor). When any tax is required to be paid by Licensee,
Licensee shall pay such tax, including any interest or penalties,
directly to the taxing authority. If any tax is required to be paid by
Licensor as a result of this Agreement (except for taxes based on
Licensor's income other than credited income taxes paid by Licensee in
Australia on behalf of Licensor), the full amount of such tax, including
any interest and penalties, will be billed to Licensee separately,
whether or not this Agreement is then in effect and promptly paid to
Licensor by Licensee.
8.4 Reimbursement - Licensee shall promptly reimburse Licensor for all
travel, accommodation and subsistence expenses incurred by Licensor in
providing assistance to or otherwise at the request of Licensee
provided, however, that Licensor must obtain prior approval from
Licensee for expenses greater than One Thousand Dollars ($ 1,000).
8.5 Audit - Licensee agrees to create and maintain, until the expiration of
two years after the last royalty payment under this Agreement is made,
sufficient books, records, and accounts regarding Licensee's licensing,
distribution and other activities and the royalties paid Licensor
hereunder. Licensor shall have the right, once per year during the term
of this Agreement and not more than once in the twelve month period
following Licensee's last payment of royalties hereunder (except in the
case where such last payment triggers expiration of this Agreement) and
at Licensor's expense, to have an accountant examine such books, records
and accounts during Licensee's normal business hours in order to verify
the accuracy and sufficiency of Licensee's payments to Licensor under
this Agreement. A condition to any such examination shall be that the
accountant shall execute an appropriate confidentiality agreement with
respect to Licensee's nonpublic or proprietary information. If any such
examination or inspection discloses a shortfall or overpayment in the
royalties due to Licensor hereunder, the appropriate party shall
reimburse the other party for the full amount of such shortfall or
overpayment. Should the audit discover a shortfall of twenty five
thousand dollars ($25,000) or more in any one year, Licensee shall
reimburse Licensor for the reasonable costs of such audit.
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9. WARRANTIES; DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
9.1 Warranties.
a. Licensor represents and warrants that: (i) it either owns, or
has a valid license to sublicense to Licensee, the Products and
the Trade Marks; (ii) the use and sublicensing of the Products
in the form delivered by Licensor to Licensee (and without
regard to use in any Derivative Product), will not infringe any
copyright, trade secret or other proprietary right of any third
party; (iii) the use of the Trade Marks in the U.S. will not
infringe any trade xxxx of any third party; and (iv) it has the
corporate authority to enter into and fulfill this Agreement.
The warranty set forth in subsection (ii) shall not apply to any
modifications to the Products made or caused to be made by
Licensee.
b. Licensee represents and warrants that it has the corporate
authority to enter into and fulfill this Agreement.
9.2. Disclaimer of Warranty. EXCEPT FOR THE WARRANTIES SPECIFICALLY SET FORTH
IN SECTION 9.1, NEITHER PARTY MAKES ANY WARRANTIES OR REPRESENTATIONS OF
ANY NATURE WHATEVER INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ALL EXPRESS WARRANTIES AND
IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY
EXCLUDED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSOR
HEREBY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS AS TO PERFORMANCE OF
THE PRODUCTS, WHICH ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.
9.3 Limitation of Liability. THE LIABILITY OF EACH PARTY WITH RESPECT TO
THE SUBJECT MATTER OF THIS AGREEMENT SHALL BE LIMITED, EXCEPT IN
CONNECTION WITH UNPAID ROYALTIES, TO THE ROYALTY AMOUNTS ACTUALLY PAID
OR TO BE PAID HEREUNDER, BUT SHALL IN NO EVENT EXCEED $6,765,000. IN NO
EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL EXEMPLARY OR OTHER DAMAGES OR LOSS OF REVENUES,
LOSS OF INCOME, LOSS OF PROFITS OR OTHER FINANCIAL REMEDIES IN EXCESS OF
ONE HUNDRED THOUSAND DOLLARS ($100,000).
IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INCIDENTAL, INDIRECT,
SPECIAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF,
THIS AGREEMENT OR IN CONNECTION WITH, OR ARISING OUT OF, THE EXISTENCE,
FURNISHING, FUNCTIONING, OR LICENSEE'S OR ANY THIRD PARTY'S USE, OF ANY
PRODUCTS, ITEMS OR SERVICES PROVIDED FOR IN THIS AGREEMENT. LICENSOR AND
LICENSEE ACKNOWLEDGE THAT THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN
INCLUDED AS A MATERIAL INDUCEMENT FOR LICENSOR TO ENTER THIS AGREEMENT
AND THAT LICENSOR WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE
LIMITATIONS ON ITS LIABILITY SET FORTH.
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10. INDEMNIFICATION
10.1 By Licensor.
a. Infringement. In the event of a claim for infringement of any
copyright or trademark, trade secret or other proprietary right
by any Product in the form delivered by Licensor to Licensee
(and without regard to use in any Derivative Product), Licensor
shall promptly, and at its expense and option, either: (i)
secure for Licensee the right to continue marketing and/or using
the infringing matter, (ii) replace or modify the infringing
matter so as to make it non-infringing (provided there is no
loss of features or functionality), with Licensee to promptly
provide the non-infringing replacement to its sublicensees,
dealers, and subdistributors; provided, however, if commercially
reasonable efforts to achieve the foregoing are unsuccessful,
Licensor shall so notify Licensee thereof, and Licensee shall
have the right to terminate this Agreement due to breach by
Licensor. In addition, Licensor will defend, indemnify and hold
Licensee harmless from any and all claims, losses, liabilities,
costs, damages, and expenses arising from a claim for
infringement of any copyright or trademark, trade secret or
other proprietary right by any Product in the form delivered by
Licensor to Licensee (and without regard to use in any
Derivative Product), subject to Section 10.3 below. This Section
10.1 (a) sets forth Licensee's sole remedy for Licensor's breach
of the warranty set forth in Section 9. 1 (a)(ii) above.
b. Other Indemnities. In the event of a claim against Licensee for
Licensor's negligence or willful misconduct in connection with
its performance under this Agreement, Licensor shall indemnify
and hold Licensee harmless from any and all claims, losses,
liabilities, costs (including reasonable attorneys' fees),
damages, and expenses, subject to Section 10.3 below.
10.2 By Licensee. In the event of a claim against Licensor (i) for
infringement of any copyright, trademark, trade secret, or other
proprietary right by the combination of the Licensee computer software
with an otherwise infringement-free Product; (ii) for any representation
or warranty made by Licensee to any third party with respect to any
Derivative Product; or (iii) for Licensee's negligence or willful
misconduct in connection with its performance under this Agreement,
Licensee shall indemnify and hold Licensor harmless from any and all
claims, losses, liabilities, costs (including reasonable attorneys'
fees), damages, and expenses, provided Licensor complies with the
procedural requirements of Section 10.3 below. In addition, Licensee
agrees to indemnify and hold Licensor harmless from any and all third
party claims, losses, liabilities, costs (including reasonable
attorneys' fees), damages, and expenses which may arise from the use of
the Derivative Products or any other item furnished by Licensee to any
such third party hereunder, subject to Section 10.3 below.
10.3 Indemnification Procedure. Whenever any claim shall arise for
indemnification under this Agreement, the party seeking indemnification
(the "Indemnified Party") shall promptly notify the party from whom
indemnification is sought (the "Indemnifying Party") of the claim and,
when known, the facts constituting the basis for such claim. In
connection with any claim giving rise to indemnity hereunder resulting
from or arising out of any claim by a person who is not a party to this
Agreement, the Indemnifying Party at its sole cost and expense may, upon
written notice to the Indemnified Party, assume the defense of any such
claim or legal proceeding if it acknowledges to the Indemnified Party in
writing its obligations to indemnify the Indemnified Party with respect
to all elements of such claim. The Indemnified Party shall be entitled
to participate in (but not control) the defense of any such action, with
its counsel and at its own expense, provided that if the Indemnifying
Party assumes control of such defense and the Indemnified Party
reasonably concludes that the Indemnifying Party and the Indemnified
Party have conflicting interests or different defenses available with
respect to such action, suit or proceeding, the reasonable fees and
expenses of counsel to the Indemnified Party shall be considered
"damages" for purposes of the Agreement. If the Indemnifying Party does
not assume the defense of any such claim or litigation resulting
therefrom within 30 days after the date such claim is made, (a) the
Indemnified Party may defend against such claim or litigation, in such
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manner as it may deem appropriate, and (b) the Indemnifying Party shall
be entitled to participate in (but not control) the defense of such
action, with its counsel and at its own expense. If the Indemnifying
Party thereafter seeks to question the manner in which the Indemnified
Party defended such third party claim, the Indemnifying Party shall
have the burden to prove by, a preponderance of the evidence that the
Indemnified Party did not defend or settle such third party claim in a
reasonably prudent manner. In either case, the party controlling the
defense shall keep the other party advised of the status of such action,
suit or proceeding and the defense thereof and shall consider in good
faith recommendations made by tile other party with respect thereto.
None of the parties shall agree to any settlement of any such action,
suit or proceeding without the prior written consent of the other
party(s), which shall not be unreasonably withheld. All claims and
actions for indemnity pursuant to this License Agreement for breach of
any representation or warranty made herein shall be asserted or
maintained in writing by a party hereto no later than one year after the
Effective Date. Any indemnification under this Agreement shall be
effected by payment of cash or delivery of a cashiers or bank check.
10.4 Certain Pre-Effective Date Liabilities. The respective liabilities of
the parties with regard to Product returns and with regard to warranty
claims made by customers relating to Products sold before the Effective
Date shall be as set forth in the Transition Agreement.
11. TRADE MARKS
11.1 Licensee Acknowledgment - Licensee acknowledges the exclusive right of
Licensor in and to all of the Trade Marks, all of the copyrights in
Documentation, Software and all other material covered by this Agreement
During the term of this Agreement, Licensor hereby grants Licensee an
exclusive license to use the Trade Marks and copyrights solely for the
purpose of conducting the business contemplated by this Agreement.
11.2 Guidelines - Licensee agrees that at all times during the term of this
Agreement it shall abide by Licensor's guidelines regarding proper use
of Licensor's Trade Marks, as shall be provided to Licensee by Licensor
from time to time.
11.3 Manner of Use - Whenever Licensee is permitted to employ any of the
Trade Marks in any written material, Licensee shall so note by use of an
asterisk and a footnote reading "Trademark of [INSERT THEN CURRENT NAME
OF LICENSOR]", or "Registered Trademark of [INSERT THEN CURRENT NAME OF
LICENSOR]", or as otherwise requested by Licensor. Licensee will use the
Trade Marks only in connection with the Products or the Derivative
Products. Licensee agrees that the ownership of the Trade Marks and the
goodwill relating thereto shall remain vested in Licensor. If requested
by Licensor, Licensee shall assist Licensor to register the Trade Marks
in any territory, at the expense of Licensor but Licensee shall not
itself seek to register the Trade Marks in its name. Licensee covenants
and agrees with the Licensor to perform all acts, deeds and things
reasonably necessary and requested by Licensor to maintain and keep the
registrations, if any, of the Trade Marks in full force and effect and
take all appropriate steps to prevent any actual or threatened
infringement thereof.
11.4 License Limitation - No right or license under any patent, copyright,
trademark or trade name or other intellectual property right of Licensor
is granted by, or is to be inferred from, any provision in this
Agreement except as expressly provided herein. Specifically, Licensee
acknowledges that it has not been granted a license to use the trademark
"People Manager" and shall have no right to use such xxxx, or any
confusingly similar xxxx, in connection with the People Manager product
either during the term of this Agreement or at any time thereafter.
11.5 Notices and Legends. Licensee agrees to include in any reproduction of
the Software and in every Derivative Product, and all reproductions of
Documentation and in packages and containers for the Derivative Products
and the Documentation, reproductions of Licensor's restricted rights
notices, copyright notices and other proprietary legends of Licensor.
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12. CONFIDENTIALITY
12.1 Confidentiality - Each party agrees to keep secret and not to disclose
any confidential or proprietary information of the other (including
without limitation the terms of this Agreement) acquired hereunder or in
connection herewith except as authorized in writing by the party owning
the confidential information and shall keep and shall require its
officers, directors, and employees to keep confidential such
information. As used herein, "confidential information" means all trade
secrets, know-how, technical, operating, financial and other information
relating to the business, products, customers and suppliers. Each party
shall immediately upon termination of this Agreement, surrender to the
other all of the other's confidential or proprietary material. The
obligation herein to keep such information confidential shall continue
in effect after as well as before the expiration or termination of this
Agreement and unless and until the information concerned becomes freely
publicly available.
12.2 Public Announcements. The parties agree that from the Effective Date
until one year after the date of termination of this Agreement, except
as otherwise required by law, any and all public announcements or other
public communications concerning this Agreement and the licenses granted
hereunder shall be subject to the approval of all parties, which
approval shall not be unreasonably withheld; provided that the Licensee
shall have no restriction upon announcements or other publications
connected with marketing the Licensee's products in the normal course.
In no event shall the Licensee or Licensor at any time disclose the
financial terms of this Agreement or any other agreement contemplated in
this Agreement, except as required by law.
13. GENERAL
13.1 Force Majeure - If the performance of any part of this Agreement or
order issued under it shall be interfered with for any length of time by
Governmental restrictions, war, civil commotion, riots, strike, lock
out, shortage of labor or materials, lack of shipping space, and acts of
God such as typhoon, flood, fire, or any other similar causes which are
beyond die control of the parties, neither party shall be responsible
for delay or failure of performance of this Agreement. If such failure
shall continue for a period of more than three (3) months, either party
shall have the right forthwith to terminate this Agreement due to breach
of a material term by the nonperforming party, pursuant to the
termination provisions of Section 6, except that the sixty day cure
period shall be reduced to fourteen days.
13.2 Waiver - The failure of either party to enforce any of the provisions of
this Agreement or to exercise any right hereunder shall not constitute a
waiver of the same or prejudice that party's right to enforce the same
thereafter.
13.3 Notices - All notices required or permitted under this Agreement shall
be in writing and shall be deemed to have been given upon personal
delivery or sending by telex or facsimile (as long as written
confirmation is received) or three days after depositing in the mail,
first-class, with postage prepaid or, for all international notices, and
for domestic notices if such service is selected, three days after
sending by Federal Express (or equivalent overnight courier service).
The addresses of the parties (until written notice of change shall have
been given) shall be as follows:
For Licensor:
Best!Xxxx, Inc.
c/o Best Programs, Inc.
00000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
XXX
ATTN: President
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with copy to:
Xxxxxxx Xxxxxx
c/o Best Programs, Inc.
00000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000 XXX
For Licensee:
DATA-TECH SOFTWARE PTY LTD
0 Xxxxxxx Xxxx
Xxxxxxxxx
Xxxxxxxx 0000
XXXXXXXXX
ATTN: Xxxxx Xxxxxxx
with copy to:
Best!Xxxx, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
ATTN: President
13.4 Entire Agreement - This Agreement constitutes the entire agreement in
respect of business hereby contemplated by and between the parties and
supersedes all previous agreements, negotiations, and commitments in
respect thereto, and shall not be changed or modified in any manner,
except by mutual consent in writing of subsequent dates signed by duly
authorized representatives of each party to this Agreement.
13.5 Exclusive Remedies. Except for any matter for which injunctive relief is
sought (as, for example, any infringement of Licensor's proprietary
rights) or any matter involving Licensor's rights under the Charge, the
Deed or any other security agreement(s)executed by Licensee or any
Licensee affiliate on Licensor's behalf (the "Security Agreements"), the
parties hereby agree that they may resort to only those dispute
resolution remedies explicitly set forth in this Section 13.5 in the
event of any disagreement, dispute, breach or claim of breach,
non-performance or repudiation hereunder; the entire transaction
represented hereby and the structure and amount of the fees and other
financial terms of this Agreement are based upon strict compliance with
this Paragraph 13.5, and the exclusive remedies set forth herein have
been explicitly bargained for and negotiated and shall bind the parties
as an integral part of this Agreement in accordance with the following
terms and conditions:
a) Internal Resolution Procedure. In the event that the parties
have any disagreement, dispute, breach or claim of breach,
non-performance, or repudiation arising from, related to or in
connection with this Agreement or any of the terms or conditions
hereof, or any transaction hereunder, including, but not limited
to, either party's failure or alleged failure to comply with any
of the provisions of this Agreement (hereinafter collectively
the "Dispute"), the parties shall first conduct a management
procedure as follows. Within ten (10) calendar days of the time
that a senior management representative of either party having
the authorization to do so informs the other party of a Dispute
by sending a written notice specifically referencing and
invoking this Paragraph 13.5, the parties shall conduct a
meeting at a location halfway between the locations of the two
parties (unless otherwise agreed) and use their best efforts to
either: (a) resolve the matter and set forth such resolution in
writing, or (b) define the Dispute in writing including a
description of the position of each party.
(b) Arbitration Resolution Procedure. If the parties are unable to
reach an agreement pursuant to subparagraph (a) above, the
Dispute shall be resolved by mandatory, binding, expedited
arbitration in accordance with the Commercial Arbitration Rules
of the American Arbitration Association before an arbitrator
with knowledge and experience in the areas of computer software
licensing. The result of the arbitration shall be final and
binding, and judgment upon the award rendered by the arbitrator
may
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be entered in any court having jurisdiction thereof. The decision
of the arbitrator shall be in writing. He or she shall be
compensated by the party that does not substantially prevail in
the arbitration, and the party responsible for payment shall be
specified in the arbitrators award. IN NO EVENT SHALL THE
ARBITRATOR HAVE THE POWER TO MODIFY, AMEND, OR OTHERWISE CHANGE
OR ADD TO ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT OR ANY
EXHIBIT HERETO WITHOUT THE EXPRESS WRITTEN APPROVAL OF BOTH
PARTIES. The internal laws of the State of New Jersey shall
govern the enforcement of the award and the principles set forth
in this Agreement shall be applied by the arbitrators for both
evidence and substantive law questions during the arbitration,
including the rendering of the award. Judgment upon the award of
the arbitrator, enforced in accordance with New Jersey law, shall
be final and binding upon the parties and may be entered in any
court in the country of either of the parties hereto. The parties
acknowledge and stipulate that this is a commercial contract and
that any award, judgment or order, interim or final. shall be
enforceable as a commercial award, judgment or order wherever
such enforcement is sought. The arbitrator shall give effect to
the applicable statute of limitation in determining any claim,
and any controversy concerning whether an issue is arbitrable
shall be determined by the arbitrators. The arbitration
proceeding and all evidence taken shall be treated as
confidential information hereunder.
13.6 Governing Law and Jurisdiction - This Agreement shall be construed and
governed in accordance with the laws of the State of New Jersey, U.S.A.
except for that body of law known as conflicts of law, and excluding any
applicable provisions of the United Nations Convention on Contract for
International Sales of Goods. The parties hereto hereby irrevocably
submit to the exclusive jurisdiction of the New Jersey courts and hereby
waive any present or future objection to any such venue, and irrevocably
consent and submit unconditionally to the jurisdiction for itself and in
respect of any of its property of any such court. The parties further
agree that final judgment against either party in any action or
proceeding arising out of or relating to this Agreement or the Security
Agreements shall be conclusive and may be enforced in any other
jurisdiction within or outside the United States of America by suit on
the judgment, a certified or exemplified copy of which shall be
conclusive evidence of the fact and of the amount of the obligation. As
soon as practical after the Effective Date of this Agreement, Licensee
shall irrevocably appoint an agent in New Jersey to accept service of
proceedings on its behalf. Licensee shall maintain such appointment
continuously in effect at all times which License is obligated under the
Security Agreements. Upon request, Licensee shall provide Licensor with
proof that it continues to maintain an authorized agent in New Jersey.
13.7 Assignment - Licensee may not assign this Agreement or any rights
hereunder without the prior written consent of Licensor. Licensor may
not assign this Agreement nor any rights hereunder without the prior
written consent of Licensee to any third party unless (a) such third
party agrees to assume all of Licensor's obligations, and (b) such party
is not a named competitor of Licensee listed on Exhibit N hereto.
Anything to the contrary herein notwithstanding, Licensor shall be
permitted at any time to assign this Agreement, without consent, but
with notice (a) to any subsidiary or associated company of Licensor,
provided such entity consents to assume all of Licensor's obligations
hereunder, and (b) pursuant to any merger, consolidation, change in
control or other reorganization, provided the surviving entity consents
to assume all of Licensor's obligations hereunder. Any attempted
assignment of this Agreement in contravention of this provision shall be
void and of no effect. Subject to the foregoing, this Agreement shall
bind and inure to the benefit of the respective parties hereto and their
successors, and assigns.
13.8 Severability - If any of the provisions, or portions hereof, are invalid
under any applicable stature or rule of law then, that provision
notwithstanding this Agreement shall remain in full force and effect.
13.9 Headings - Headings are included in this Agreement for convenience only,
and shall not form a part of it for the purposes of construction.
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13.10 Authorized Representatives - Each party represents and warrants that the
person signing on its behalf is duly authorized to bind such party and
that the execution, delivery and performance of this Agreement and the
performance by Licensor and Licensee of their respective obligations
have been duly authorized by all requisite corporate action.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed
under seal by their duly authorized representatives.
BEST!XXXX, INC. DATA-TECH SOFTWARE PTY. LIMITED
By: Xxxxxx X. Xxxxxxx, Treasurer By: Xxxxxx Xxxxx Xxxxxxx, Director
Signature: /s/ Xxxxxx X. Xxxxxxx Signature: /s/ Xxxxxx Xxxxx Xxxxxxx
---------------------- -------------------------
Date: 5/28/96 Date: 5/28/96
------- -------
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LICENSE AGREEMENT
Exhibit A - Products
M.Y.O.B. Accounting Software for the Macintosh
M.Y.O.B. Accounting Software for Windows
M.Y.O.B. Accounting Software for the Macintosh with Payroll
M.Y.O.B. Accounting Software for Windows with Payroll
BESTBOOKS for the Macintosh
BESTBOOKS for Windows
Durga (to be delivered "as is," as of the Effective Date)
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LICENSE AGREEMENT
Exhibit B - CASPER
[To be provided promptly after Closing]
24
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LICENSE AGREEMENT
Exhibit C - PEOPLE MANAGER
[To be provided promptly after Closing]
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LICENSE AGREEMENT
Exhibit D - Termination Agreement
May 28, 1996
Mr. Xxxxxx Xxxxx Xxxxxxx
Director
Data-Tech Software Pty Ltd
0 Xxxxxxx Xxxx
Xxxxxxxxx, XXX 0000, Xxxxxxxxx
Dear Xxxxx:
This Letter Agreement will terminate the Vendor International Distribution
Agreement dated January 1, 1996 (the "Agreement") between Best!Xxxx, Inc. and
Data-Tech Software Pty. Ltd, as of the close of business on May 28, 1996, under
the following terms and conditions.
All of the rights and obligations of Best!Xxxx and Data-Tech expressly stated to
survive, or impliedly surviving, termination under the Agreement shall not
survive termination and shall be of no force and effect after termination,
except that:
a. All rights and obligations of indemnification set forth in the
Agreement as they would apply to events that occur prior to termination
shall survive termination;
b. All royalties accrued by Data-Tech as of the date of termination will
be paid to Best!Xxxx within thirty days of termination; and
c. The rights and obligations set forth in the first sentence of Section 7.9
and in all of Section 8.6 of the Agreement with respect to transactions
occurring before the date of termination shall survive termination.
Please sign below to show your assent and approval to the immediate termination
of the Agreement under the terms and conditions described in this Letter
Agreement.
Very Truly Yours,
Best!Xxxx, Inc. AGREED AND CONSENTED TO:
Data-Tech Software Pty. Ltd
By:__________________________ By:________________________________
Xxxxxx Xxxxxxx, Treasurer Xxxxx Xxxxxxx, Director
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LICENSE AGREEMENT
Exhibit E - People Manager Territory
Licensee is authorized to sell People Manager in the following countries only:
a. Australia
b. New Zealand
c. Papua New Guinea
d. Fiji
x. Xxxxxxx Islands
f. Vanuatu
x. Xxxx Islands
h. Malaysia (distributor)
i. Brunei
j. South Africa (distributor)
k. Singapore (distributor)
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LICENSE AGREEMENT
Exhibit F - Trademarks
MYOB(R)
BESTBOOKS(R)
BEST!XXXX(R)
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LICENSE AGREEMENT
Exhibit G - Existing Distribution Agreements
WRITTEN AGREEMENTS DATE SIGNED
--------------------------------------------------------------------------------
Merisel November 20, 1990
000 Xxxxx Xxxx Xxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
--------------------------------------------------------------------------------
Merisel, CPD Amendment to prior agreement January 1992
described above
--------------------------------------------------------------------------------
Merisel, CPD Amendment (to prior agreement February 1, 1994
described above) pertaining only to Canada
--------------------------------------------------------------------------------
U.S. Software Resource Inc. December 30th, 1991
8 Digital Xxxxx/Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
--------------------------------------------------------------------------------
PC Connection July 11, 1990
--------------------------------------------------------------------------------
Ingrain Micro Inc. March 25, 1993
0000 X. Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
--------------------------------------------------------------------------------
Xxxxxx Micro Inc. (Canada) September 1, 1993
000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx X0X 0X0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ORAL AGREEMENTS
--------------------------------------------------------------------------------
Merisel (Canada) (Unclear if this is the Merisel
CPD Amendment of February 1, 1994 pertaining
only to Canada, described above)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Egghead
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Micro Warehouse
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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CONFIDENTIAL TREATMENT
Confidential material has been omitted
and filed separately with the Securities
and Exchange Commission. Astericks
denote such omissions.
LICENSE AGREEMENT
Exhibit H - Royalties
*
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LICENSE AGREEMENT
Exhibit I - Consulting Services Procedure
A. As provided for in Section 4, Casper Modifications, Licensor agrees that
during the first 12 months following the Effective Date, Best has committed to
Licensor that it will deliver to Licensee any enhancement to Casper that it
creates during those 12 months. Specifically, as part of that commitment, Best
will provide to Licensee any enhancements to the Casper architecture that result
from the Best Budgets development effort if, as a result of such effort,
enhancements are made to the original Casper architecture or any part of such
architecture.
B. As also provided for in Section 4, Casper Modifications, Best will provide
Licensee with up to 600 hours of technical consulting support on Casper, at no
charge to Licensee. The 600 hours can be utilized over an 18 month period
measured from the Effective Date, with no more than 300 hours being expended in
the final 6 months of the 18 months.
The technical managers of Best and Licensee have agreed to the following
procedure whereby Licensee will expend the 600 hours to have Best assist in the
design and then have Best develop certain components for Licensee. For those
components, the following process will be put in place:
Specification Phase:
Licensee or its Management Company will make a proposal for a component to
be designed and implemented by Best. Best and Licensee or, if Licensee so
designates, its Management Company, will enter into an effort to complete
a reasonable specification of the components functionality and user
interface. A specification template, designed during the Casper project,
will be provided to the Management Company. This template outlines the
appropriate information necessary to complete the definition phase. The
template has been included at the end of this document.
In addition to the specifications document, an "Acceptance Criteria"
document will be completed. The Acceptance Criteria document will define
criteria under which both parties agree to completion of the component.
This may include performance bench marks, zero defect level, etc.
The hours exercised by Best engineers during this phase will be deducted
from the 600 hour pool. This should be a 1-2 week phase. To use the
hours most effectively Licensee or its Management Company should come to
the table with a complete specification document, focusing the time spent
on educating the engineers on the component and working through any
technical issues.
SCHEDULE PHASE:
The schedule phase will be a brief period of time during which the Best
engineers and the Management Company QA will evaluate the specifications
and arrive at a schedule and total number of man hours necessary to
deliver the component, 50% of the hours exercised by Best engineers during
this phase will be deducted from the 600 hour pool.
IMPLEMENTATION AND STABILIZATION PHASE:
The implementation and stabilization phase will cover the design,
development, QA and delivery of the component by the Best engineers.
The hours exercised by Best engineers during this phase will be deducted
from the 600 hour pool. If at any time during the project the Best project
manager reasonably anticipates that the project costs will exceed the
estimate by more than 10%, the Best project manager will notify Licensee
of the number of hours that Best estimates will be required to complete
such task and will not continue to work on such task until Licensee
approves the revised estimate.
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C. Additional Casper Consulting. Should Licensee determine that it wishes to
contract additional technical consulting/development work on the Casper
product to Best Programs, the procedure for doing so is as follows:
1. Licensee will advise Best of its interest in having the work performed
and will provide Best with a description of the project.
2. Best will evaluate the request with respect to the work to be performed
and (the availability of resources. Best will provide Licensee with an
estimate for the project, indicating projected cost and schedule for the
project along with a summary of its understanding of the work to be
performed and the deliverables of the project.
The cost will be estimated using the following labor rates:
Vice President $200 per hour
Senior Engineer $100 - $150 per hour
Jr. Eng/QA analyst $ 50 per hour
The schedule will be based on the availability of resources, assuming a
start date no earlier than two months from the date of the request.
3. Licensee will review the estimate and advise Best of its decision as to
whether or not it wishes to proceed with the project.
4. If Licensee wishes to proceed, Best and Licensee will then enter into
the negotiation of a specific contract, utilizing the project process
defined above in B.
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TEMPLATE:
Area (Component) Outline:
1. BACKGROUND. (Describes the component in a general fashion and to the
extent necessary and appropriate, what the user expects to do, not how
they expect to do it). This aids in engineer and QA comprehension of
the area especially those that don't necessarily map to real world
things.
Another area this is important for is in framing the UI design.
Understanding the profile of the end user is critical in making good
decisions about information flow.
Some attributes that would be invaluable are profile of user (job, needs,
desires, etc.), frequency of usage (once in a while, every day,
constantly, etc.), and typical tasks the user would do with this component
(batch enter checks that are mailed in by customers, quick access to card
information when filling out an invoice when they are on the phone to
verify address. name and other critical info, etc.).
II. LOGIC SPECIFICATION
A. Rules (such as what to do when trying to delete an account that has
posted transactions, the exact steps needed to post a sales journal entry,
workflow rules, etc.).
B. Boundaries (such as allow no more than 5 fiscal years of budgets,
performance or memory benchmarks, etc.)
C. Security (such as a user should be permitted to have access to any or
all of the following; Budgets, History, and Account Profile, or no one may
be executing Financial reports when a journal entry is submitted, etc.).
III. UI SPECIFICATION
A. Screens (bitmap snapshots such as Xxxxx has created)
B. Menus - DropDown & PopUp (if applicable; snapshots such as Xxxxx has
created)
C. UI interaction descriptions (such as clicking "Apply" should save the
changed information and not close the window, or clicking "Add All" should
move all entries from the Shown Fields listbox to the Tab Stop listbox).
D. Error/Warning Messages (such as Error 123: This account already
exists.; greatly aids development, QA and doc in discerning error/warning
conditions.)
E. Field Attributes (note: these are per field)
1. Smart enabling?
2. Editable field value defaults
3. Display only?
4. Accelerators
5. Smart filling?
6. Validations
7. Single Select? (if a list type field)
8. Required field?
9. Icons/Bitmaps (especially for MDI windows, trees, bitmap
buttons, and tabs).
10. Popup menu tie in with (B).
11. Length
12. Expected type (date, string, money, number, etc.).
13. Formatting (all uppercase, all lowercase, MM/DD/YY, MM/YY, etc.)
14. Quantity/Capacity (especially for lists, trees and grids).
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15. Descriptive name
16. Status line help text (if applicable)
17. Drill down enabled? (if so, what does it drill down into?)
IV. ANALYSIS SPECIFICATION
A. Reports
1. Logic Specification (similar to II)
2. UI specification (similar to III)
B. Graphs & Other Output
1. Logic Specification (similar to II)
2. UI specification (similar to III)
C. Audit Trail (events/actions in component that should generate an audit
event and what information is contained in the audit event itself).
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LICENSE AGREEMENT
Exhibit J - Licensee Security Agreement
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LICENSE AGREEMENT
Exhibit K - Management Company Security Agreement
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LICENSE AGREEMENT
Exhibit L - Management Company Guarantee
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LICENSE AGREEMENT
Exhibit M - Deed of Owners
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LICENSE AGREEMENT
Exhibit N - Competitive Companies
Intuit
DacEasy
Peachtree
Checkmark
Aatrix
Big Software
MTX International
Abacus Accounting Systems
Satori
M-USA
Brilliant
Pegasus
Reckon Software
Sybiz
Attache
Pastel
Sage
Business Vision
39
