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EXHIBIT 10.7
TECHNOLOGY AND SOFTWARE LICENSE AGREEMENT
This Technology and Software License Agreement is effective as of the ___ day of
___________, 2000 (the "Effective Date") and is by and between Enmax
Corporation, a Utah corporation ("Licensor"), and XxxxxxxXxx.xxx, Inc., a Utah
corporation ("Licensee").
SECTION 1 - DEFINITIONS APPLICABLE IN THIS AGREEMENT
1.1 "HMMS TECHNOLOGY" means all such technology and Computer Programs and all
existing and future inventions, know-how, products, methods, processes, ideas,
data, experimental results, and works of authorship of Licensor, including a
computer software system for use in inventorying, management and tracking of
hazardous waste and hazardous materials.
1.2 "COMPUTER PROGRAMS" includes, without limitation, the following: (a) the
source code, object code, executable code, machine readable code, binary and all
other forms of the computer programs and all Documentation therefor and to the
HMMS Technology, and (b) the most current version thereof and all prior and
subsequent versions thereof.
1.3 "LICENSOR INTELLECTUAL PROPERTY" means any and all copyrights, trade
secrets, patent rights, trademarks, skill, know how and other intellectual
property in or relating to HMMS Technology. "Licensor Intellectual Property"
includes, with respect to any jurisdiction, any and all copyright registrations
and applications, and patents and patent applications of Licensor relating to
HMMS Technology.
1.4 "DEVELOPMENT ENVIRONMENT" means the programming documentation, software
tools, utilities, development automation software, and other code, materials and
items used by Licensor's programmers to compile, develop, maintain and enhance
HMMS Technology. Anything needed to compile, build, service, modify, maintain or
revise HMMS Technology (other than commercially available operating systems,
compilers, tool kits and products) shall be included in and with the Development
Environment. If a component of the Development Environment is commercially
available to the public, Licensor need not deliver, but must specifically
identify the component for Licensee.
1.5 "DOCUMENTATION" means all use, programming and maintenance documentation,
including user manuals, programming manuals, logic flow charts, and programming
notes.
SECTION 2 - LICENSE
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2.1 EXCLUSIVE LICENSE. Licensor hereby grants to Licensee a worldwide,
perpetual, fully paid up, royalty free, exclusive license, to use, copy,
display, perform, practice and improve HMMS Technology and Licensor Intellectual
Property, and to make and have made HMMS Technology, and to modify, enhance and
improve HMMS Technology (including the Computer Programs thereof) and Licensor
Intellectual Property, and to create derivative works based on HMMS Technology
or Licensor Intellectual Property (the "License").
2.2 RIGHT TO SUBLICENSE. The License includes the right for Licensee to grant
sublicenses under the License. Licensee has no implied obligations under the
License.
SECTION 3 - DEVELOPMENT AND DELIVERY OF HMMS TECHNOLOGY
3.1 DEVELOPMENT OF PROGRAM AND DOCUMENTATION. Licensee develop, test, debug,
market and own any technology, Computer Programs, products or services based on
or as an update, expansion, revision or replacement of all or any of the HMMS
Technology.
3.2 DELIVERY. Licensor has or shall deliver to Licensee the Deliverables for
HMMS Technology to the extent it exists as of the date of such delivery.
3.3 DELIVERABLES. Licensor shall deliver to Licensee the following
"Deliverables" for HMMS Technology software: (a) the HMMS Technology source
code, and (b) the HMMS Technology Documentation and Development Environment
(defined in Section 3.4). As to non-software forms of HMMS Technology, the
"Deliverables" will include such documents, written descriptions, media,
samples, and other tangible representations as are useful or necessary for
complete disclosure and transfer of HMMS Technology to Licensee.
3.4 HMMS TECHNOLOGY TRANSFER. Licensor shall fully disclose and transfer the
HMMS Technology to Licensee. Licensor shall provide such disclosures as are
reasonably requested by Licensee from time to time. Licensor shall have its best
programmers and technical support personnel available to Licensee for question
and answer purposes and other disclosures.
3.5 ACCURACY OF DATA. Licensor agrees to furnish and deliver to Licensee, as
promptly as practicable following the Effective Date, all HMMS Technology to the
extent same is owned, possessed or otherwise becomes available to Licensor.
SECTION 4 - PROTECTION
4.1 ENFORCEMENT. If either Party learns of a possible infringement,
misappropriation or any challenge to any Licensor Intellectual Property by a
third party, then the Party
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shall promptly give notice thereof to the other, together with a copy of all
evidence, materials and correspondence relating thereto. Licensee has the
authority, right and power, but not the obligation, to enforce the Licensor
Intellectual Property against any infringer or misappropriator for infringement
or misappropriation, and any challenges to the Licensor Intellectual Property,
including its validity or enforceability, provided such infringement,
misappropriation or challenge would reasonably affect the Permitted Purposes.
Licensee may do so in its own name and/or the name of Licensor. Licensee shall
be entitled to any damages, attorneys' fees, and other remedies and relief
granted and any payments and other consideration given in settlement. In the
event of any dispute, litigation or arbitration involving Licensee and relating
to HMMS Technology or Licensor Intellectual Property, the Parties shall fully
cooperate with and assist each other in connection with such dispute,
litigation, arbitration or settlement.
4.2 PROTECTION OF INTELLECTUAL PROPERTY. Licensor shall be reasonably diligent
in registering, patenting, maintaining and protecting Licensor Intellectual
Property during the term of the License. Licensor shall keep Licensee informed
of the filing, prosecution, progress, maintenance, and status of trademark
applications, copyright applications and patent applications, as well as any
resulting registrations and patents.
4.3 COOPERATION. The Parties agree to reasonably cooperate with each other,
without fees or remuneration, in obtaining of any and all governmental listings,
approvals, validations and/or certifications necessary or desirable for
enjoyment of the License under this Agreement.
SECTION 5 - CONFIDENTIALITY
5.1 MUTUAL OBLIGATION. Each Party may possess unpublished works of authorship,
drawings, data, formulae, photographs, software programs, samples,
specifications, designs, proprietary information, secret production processes,
methods and apparatus, know-how, and other trade secrets and other data and
technical and/or business information which it is contemplated may or will be
furnished to the other Party during the course of the Agreement (collectively
"Proprietary Data"). Subject to the terms of this Agreement: (a) as between the
Parties, any and all such Proprietary Data shall remain the exclusive property
of the furnishing Party; and (b) the receiving Party agrees to keep the same
confidential in the same manner it treats its own confidential information and
to require its employees who may be required to have access to same to keep the
same confidential during the term of this Agreement and thereafter, and to
return same including all copies thereof to the furnishing Party upon
termination of this Agreement, except as may be necessary to carry out its
respective obligations hereunder; (c) the receiving Party agrees to keep all
documents and other material bearing or incorporating the Proprietary Data at
the recipient's usual places of business; and (d) the receiving Party further
agrees not to use for any purpose, reproduce, transform, or store any of said
Proprietary Data upon an externally
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accessible computer or electronic information retrieval system or to transmit it
in any form or by any means whatsoever outside of its usual place of business.
5.2 EXCEPTIONS. Nothing in Section 5.1 or elsewhere within this Agreement,
express or implied to the contrary, shall in any way be construed as creating
any obligations of either Party with respect to, or in any way restricting or
impairing the right of either Licensor or Licensee, to continue their respective
businesses, disclose or use, in any manner any of the following:
(a) information which at the time of disclosure has been lawfully published or
is in the public domain, or is or has been generally available to the trade or
the public;
(b) information which after disclosure becomes lawfully published or becomes
part of the public domain, or becomes available to the trade or the public
otherwise than through a breach of this Agreement by the recipient;
(c) information which was known to the recipient prior to receipt from the
disclosing Party, provided such prior knowledge can adequately be substantiated
by documentary evidence antedating the disclosure by the other Party or by sworn
corroboration testimony;
(d) information which becomes known to the receiving Party from a source which
legally derives such information independently of the disclosing Party under
this Agreement;
(e) information released by the disclosing Party without restriction to anyone;
or
(f) information which is independently developed by the receiving Party which
the receiving Party can so substantiate by documentary evidence antedating the
disclosure by the other Party or by sworn corroboration testimony.
SECTION 6 - SPECIAL PROVISIONS
6.1 INDEMNIFICATION. Licensor shall indemnify Licensee and its directors,
officers, shareholders, employees, representatives and customers against and
hold them harmless from: (a) any claim by a third party that HMMS Technology
infringes any copyrights, trade secrets, patents or other intellectual property;
(b) any claim by a third party that this Agreement is in violation or breach of
any contract, assignment, license or sublicense to which Licensor is a party or
has knowledge; (c) any claim relating to any past, present or future use,
licensing, sublicensing, distribution, marketing or commercialization of HMMS
Technology by Licensor; (d) any claim asserted by any customer of Licensor
relating to HMMS Technology or any business activity of Licensor; and (e) any
litigation, judgments, awards, attorneys' fees, liabilities,
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settlements, damages, losses and expenses relating to or arising from (a), (b),
(c) or (d), above in this Section 6.1.
6.2 EXPORT ACT. Licensee warrants that neither the HMMS Technology (including
Computer Programs) nor any software or Documentation associated therewith or
based thereon will be made available or exported by or through Licensee to any
country in contravention of any law or regulation of the United States or any of
its agencies, including the Export Administration Act and regulations relating
thereto and any successor legislation or regulations thereto.
SECTION 7 - WARRANTIES
7.1 INFRINGEMENT. Licensor warrants to Licensee that HMMS Technology does not
and will not, and the use and copying of HMMS Technology by Licensee and
Licensee Controlled Subsidiaries will not, infringe or violate any copyright,
patent, trade secret, trademark or other right of any third party. Licensor
warrants to Licensee that it has no knowledge of, or reason to believe, that any
third party may claim any rights to HMMS Technology contrary to or inconsistent
with this Agreement.
7.2 OWNERSHIP. Licensor warrants that Licensor is and will be the sole and
exclusive owner of HMMS Technology and Licensor Intellectual Property and that
they are not, and will not become, subject to any assignment, license,
sublicense, encumbrance, restriction or defect in title or to any other
agreement in conflict with this Agreement or Licensee's right to use the HMMS
Technology and otherwise exercise the License.
7.3 NO CONFLICTING AGREEMENTS; GOVERNMENT CONTRACTS. Licensor warrants that this
Agreement is not in conflict with any other agreement to which Licensor is a
party or with any obligation of Licensor to any third party. Licensee
understands that certain government agencies may have licenses to use HMMS
software or all or part of the HMMS Technology and that Licensee's rights in the
same are subject to such rights.
SECTION 8 - GENERAL PROVISIONS
8.1 RELATIONSHIP. Licensor and Licensee are separate and individual entities.
This Agreement does not convey any authority or power upon either Party to make
any agreement or commitment in the name of or on behalf of the other Party, or
for the Parties jointly, or to incur any liability or indebtedness whatsoever
for the account of the other. This Agreement shall not be deemed to constitute
the Parties as partners or joint venturers, and neither Party, nor their
respective agents and employees, shall under any circumstances be deemed the
agent or representative of the other.
8.2 SEVERABILITY. In case any one or more of the provisions contained herein
shall,
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for any reason, be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provisions of this Agreement, and such provision shall be construed, narrowed
and limited to the extent necessary to remove such invalidity, illegality or
unenforceability with respect to the applicable law as it shall then be applied.
8.3 GOVERNING LAW AND CHOICE OF FORUM. This Agreement shall be governed,
construed and enforced in accordance with the laws of the state of Utah without
regard to conflict or choice of law principles. Any litigation or arbitration
between the Parties relating to this Agreement or its subject matter shall be
exclusively conducted in Salt Lake Count, Utah. The Parties hereby submit to
such jurisdiction and venue.
8.4 FINAL AGREEMENT. This Agreement constitutes the final, complete and
exclusive agreement and understanding between the Parties relative to the
subject matter hereof, and supersedes all prior agreements, understandings,
negotiations, correspondence, and discussions, written or oral, between the
Parties with respect thereto.
8.5 MODIFICATION OF AGREEMENT. Any rescission, modification, revision or
amendment of this Agreement shall not be effective unless made in a writing
executed by both of the Parties.
8.6 WAIVER. Any waiver of, or promise not to enforce, any right under this
Agreement shall not be enforceable unless evidenced by a writing signed by the
Party making said waiver or promise.
8.7 HEADINGS. The section and other headings in this Agreement are for the
purpose of convenience only and shall not limit, enlarge or affect any of the
covenants, terms, conditions or provisions of this Agreement.
8.8 CONSTRUCTION. The wording used in this Agreement is the wording chosen by
the Parties to express their mutual intent, and no rule of strict construction
shall be applied against any Party. Whenever the context reasonably permits, the
singular shall include the plural, the plural shall include the singular, and
the whole shall include any part thereof.
8.9 NOTICES. All notices and reports, wherever required in this Agreement, shall
be in writing. Notices and reports shall be deemed to have been sufficiently
given if a copy is sent both (a) by facsimile, and (b) by reputable
international commercial courier to the Parties at the respective address then
current addresses. Notices shall be effective upon actual receipt thereof.
8.10 SUCCESSORS. This Agreement shall be binding upon and inure to the benefit
of the Parties and their respective permitted successors and assigns.
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8.11 ASSIGNMENT. This Agreement is assignable by Licensee, provided that the
assignee agrees in writing to assume the obligations of Licensee under this
Agreement.
8.12 FURTHER ASSURANCES. Licensor shall execute and deliver to Licensee such
additional documents and shall take shall additional action as Licensee
reasonably requests to better effectuate or evidence the License or intent of
this Agreement.
8.13 COUNTERPARTS. This Agreement may be executed in any number of duplicate
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. The persons signing below
represent that they are duly authorized to execute this Agreement for and on
behalf of the Party for whom they are signing.
8.14 AUTHORIZED EXECUTION. The individuals signing this Agreement below
represent that they are duly authorized to execute this Agreement for and on
behalf of the Party for whom they are signing.
AGREED TO AND ACCEPTED BY:
Enmax Corporation ("Licensor")
By (signature): /s/ XXXXXXX XXXXXXXX
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Name (print): Xxxxxxx Xxxxxxxx
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Title: Executive Vice President
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XxxxxxxXxx.xxx, Inc. ("Licensee")
By (signature): /s/ XXXX XXXXXXX
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Name (print): Xxxx Xxxxxxx
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Title: President
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