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EXHIBIT 10.11
LICENSING AGREEMENT FOR RAKIS SOFTWARE
BETWEEN
CBF SYSTEMS, INC.
(LICENSOR)
AND
INTERLINQ SOFTWARE CORPORATION
(LICENSEE)
This Agreement is made as of the 12 day of May, 1999, by and between CBF
Systems, Inc., a Michigan corporation, ("Licensor") and Interlinq Software
Corporation, a Washington corporation ("Licensee").
In consideration of the mutual promises contained herein, and for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by Licensee and Licensor, the parties hereto agree as follows:
1. Grant of License. In consideration for the payment of the
licensing fees paid or to be paid by Licensee pursuant to this Agreement,
Licensor grants Licensee a world wide, non-exclusive and non-transferable
license (the "License") to install, use, sublicense, and distribute the
Licensor's Products described in Exhibit "A" (the "Products & Prices") as
hereinafter set forth, and the associated engineering and program documentation
prepared by Licensor from time to time (collectively the "Documentation").
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2. Scope of License.
A. Licensee may:
1. Install, download and use the Licensor's
Products in Licensee's own facilities and permit its direct customer's to do the
same in their business facilities on an undefined number of central processing
units and network computer environments pursuant to the terms and conditions set
forth in this Agreement.
2. Use and distribute the Licensor's Products as
embedded within Licensee's software applications and/or to be bundled with
Licensee's set of components utilized by Licensee's direct customers. The term
"direct customer" as used herein is an entity for whom Licensee has provided
and/or modified Licensee's software application, exclusive of any entity who's
primary intent is to resell or redistribute Licensee's software application to
others.
3. Use, copy and distribute to all users in
either printed or electronic media, the human-readable material as provided by
Licensor to Licensee and enabling Licensee to fully utilize the Licensor's
Products, including operating instructions, user manuals, programming
documentation and the like.
4. Use and execute the Licensor's Products on
the computers owned/operated by Licensee and permit its direct customers to do
the same only for purposes of serving the internal needs of Licensee's business
and the use of Licensee's software at customer locations.
5. Store Licensor's Products machine-readable
instructions or data in, transmitted through, and displayed on machines
associated with Licensee's specified computers and permit its direct customers
to do the same.
6. Make and permit each of its direct customers
to make one copy of the Licensor's Products in machine/readable form for
emergency back-up purposes, but only so long as Licensor's xxxx remains affixed
to the copies of Licensor's Products; such emergency back-up copies to remain
the property of Licensor.
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7. Private label Licensor's Products to its
direct customers. Those modifications will not, in any case, affect any of the
Licensor's copyright messages already existing within the Licensor's Products.
In addition, Licensor will, at Licensee's direction, delete any reference to
Licensor's name and/or substitute Licensee's name in place thereof.
8. Licensee may use the Licensor's Products only
for those purposes specified in this Agreement (including without limitation
Exhibit "A" to this Agreement). Distribution of the Licensor's Products are
limited to Licensee's direct customers only. No work for hire, multiple-user
license or time sharing arrangement is permitted. Any other use or distribution
of the Licensor's Products is expressly prohibited. Licensee's rights granted by
this Agreement may not be transferred unless approved by Licensor. More
specifically, Licensee may, at any time with Licensor's written approval, such
approval not be withheld unreasonably, assign any and all of its rights granted
by this Agreement to (i) a person or entity that is controlled by Licensee
including without limitation a subsidiary of Licensee (an "affiliate") or (ii)
as set forth in Section 13F. Notwithstanding the foregoing, Licensee is
prohibited from assigning this Agreement to an entity whose business directly
competes with Licensor's primary business.
9. Licensee acknowledges that any placement of
Licensee's software with any entity that will resell or redistribute Licensee's
software (hereinafter "third parties"), either in its present format or with
modifications, will require such third parties to obtain a separate License
Agreement from Licensor, with terms, conditions and pricing unique to the
circumstances of that third party.
10. Licensee acknowledges that Licensor's
Products are built in part on products developed and owned by Licensor and
further that Licensor's Products rely upon a proprietary file format known as
.uff (universal file format) as employed within Licensor's other proprietary
products that work in conjunction with Licensor's Products. Licensee agrees to
make
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no changes, conversions, modifications or connections which would permit
Licensor's Products to work in conjunction with any other file format that is
unsupported by Licensor.
3. License Fee.
A. As full consideration to Licensor for Licensor's grant of the
License to Licensee, Licensee agrees to pay Licensor the license fees specified
in Exhibit "A" in the amount and at the time specified therein.
B. Licensee shall be responsible for any present or future
taxes, duties, tariffs, withholdings or fees of any nature whatsoever based on
Licensee's use of Licensor's Products, other than taxes based on Licensor's
income. Licensee shall promptly pay to Licensor an amount equal to such tax(es)
actually paid or required to be collected or paid by the Licensor.
D. Within thirty (30) days following the end of each of
Licensee's fiscal quarters during the term of this Agreement, Licensee shall
submit to Licensor a detailed royalty report that shall specify the net end-user
license values for new customers (as defined in Exhibit A) during the previous
quarter, together with the royalty fees due to Licensor. Licensee agrees to
allow Licensor's representatives, and/or independent auditors at Licensor's sole
expense, to audit and analyze appropriate and relevant accounting of records of
Licensee to verify accurate and full accounting for and payment of all monies
due to Licensor hereunder. Any such audit shall be permitted during business
hours within ten (10) days of receipt of Licensor's written request and shall
not interfere unduly with the business of Licensee. No audit (other than the
first audit) may be conducted less than six months after the previous audit. All
information made available to Licensor or its representative in any such
examination shall be held in confidence and not disclosed to any other person,
firm or corporation unless a dispute arises regarding the transactions subject
to such examination and provided however, that nothing herein contained shall be
construed to prevent Licensor and/or its duly authorized representatives from
testifying in any court of competent jurisdiction with respect to the
information obtained as a result of such examination in any action instituted to
enforce the rights of Licensor under this Agreement.
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4. Additional Fees. In addition to the initial License Fee, Licensee
will pay to Licensor the following fees for services rendered by Licensor:
A. Maintenance Fee. In consideration of Licensor's performance
of its maintenance obligations set forth herein, Licensee shall enter into a
mutually acceptable Maintenance Agreement (Exhibit B) covering Licensor's
Products. This Maintenance Agreement will be mandatory for the first year
following Acceptance of Licensor's Products and optional thereafter. The Annual
Maintenance Fee as set forth in Exhibit A shall be due and payable upon
commencement of the Maintenance Agreement. Any Annual Maintenance Fee after the
first year shall be determined by Licensor, subject to 7% annual increase cap,
and shall be payable by Licensee at the commencement of subsequent Maintenance
Agreement years.
5. Updates, Modifications and Corrections. So long as Licensee pays the
Annual Maintenance Fee, Licensor shall provide Licensee with all updates,
modifications, or, corrections, of the Licensor's Products which have the same
or greater functionality as their predecessors. However, Licensor shall have no
obligation to develop such items except as stipulated within the Maintenance
Agreement which must be in effect at such time. Such items shall be: (i)
delivered to Licensee as soon as they are available and (ii) accompanied by new
or revised Documentation as necessary or appropriate. These updates,
modifications, or, corrections of the Licensor's Products and associated
Documentation shall constitute Licensor's Products under this Agreement and
shall be covered by all terms of this Agreement, except that no additional
license fees or other payments shall be due on account thereof.
6. Product Acceptance by Licensee.
A. Not later than forty-five (45) days after the Date of this
Agreement, Licensor shall deliver to Licensee two (2) acceptable copies of the
fully functional object code version of the Licensor's Products suitable for
testing together with the appropriate documentation for the Licensor's Products
("Delivery").
B. Following Delivery and the commencement of testing by
Licensee, Licensee shall promptly advise Licensor of the discovery of any
programming error or anomaly
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(an "Error"). Licensor shall promptly correct all Errors and each such item
shall again be subject to the acceptance procedure described herein.
C. In the event that the Licensor's Products fails to achieve
product acceptance in 60 days after the date of delivery (other than as a result
of a delay caused by Licensee), Licensee may, without limiting any of its other
remedies:
1. Extend the time for Licensor's performance;
2. Terminate this Agreement effective immediately upon
notice to Licensor and receive an immediate refund of any monies paid to
Licensor pursuant to Section 3 hereof.
7. Installation and Training.
A. Initial Install at Direct Customer Site:
Licensor shall provide to Licensee, at no additional cost to Licensee, the
following installation support at a direct customer's site for each of the three
of Licensee's product groups, as requested by Licensee, with Licensor being
reimbursed by Licensee for the reasonable travel and lodging costs incurred by
Licensor for the initial installation of Licensor's Products:
1. An on-site technical person for up to one (1) week.
Any services required by Licensee in excess of such stated time periods shall be
paid for by Licensee at Licensor's then prevailing hourly rates for such persons
plus all travel, lodging and related expenses.
Deployment Allowance at Licensee's Site: Licensor will provide
an allowance of up to 350 hours of time in support of Licensor's release of the
five major, scheduled version releases. This allowance will be for time incurred
by Licensor's primary development contractor in installing, training and problem
resolution at the Licensee's site. Any support requirement requested by Licensee
in addition to this allowance shall be paid for by Licensee at Licensor's then
prevailing hourly rates for such persons.
8. Licensor's Obligations.
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A. So long as Licensee pays the Annual Maintenance Fee, should
an error in any of the Licensor's Products be identified by Licensor, Licensee,
Licensor's other customers or any other party at any time, then Licensor will,
at Licensor's expense, make the necessary corrections to such Licensor's
Products and deliver corrected versions as directed by Licensee. Licensor shall
undertake such error or correction process upon the earlier of Licensor's
discovery of the applicable error or Licensor's receipt of notice of the error.
This shall be Licensor's sole obligations with respect to an error. In the event
Licensor furnishes Licensee with an electronic file containing any defect or
bug, including any defective disc or other medium, Licensor shall properly
replace such electronic file at no cost to Licensee.
B. To the extent that Licensor's Products perform calculations
related to the year 2000, and it is expressly stated that the Licensor's
Products generally rely upon such year 2000 data as generated by the software of
others, Licensor's Products do and will remain capable of correctly performing
all functions, calculations, comparisons and sequencing both before, during and
after the year 2000 without error or degradation of performance.
9. Licensor's Proprietary Rights.
A. Subject to Licensee's rights and license under Section 1
hereof, Licensee agrees that: (i) Licensor is and shall be the sole and
exclusive owner of all intellectual property rights in and to the Licensor's
Programs; and (ii) Licensee will honor and respect Licensor's copyrights and
other intellectual property rights in and to the Licensor's Programs, and
Licensee will not take (nor cause any person or entity to take) any actions
detrimentally inconsistent therewith. Except as otherwise allowed by this
Agreement, Licensee agrees that any copies of the Licensor's Products which it
makes pursuant to this Agreement shall bear all copyright, trademark and other
proprietary notices included therein by Licensor.
B. Licensee may not use, copy, modify or distribute the
Licensor's Products (electronically or otherwise), or any copy, annotation,
transcription, or merge portion thereof, except as provided in this Agreement or
as expressly authorized by Licensor. Licensee may not reverse assemble, reverse
compile or otherwise translate the Licensor's Product. Licensee shall
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use commercially reasonable efforts to protect the Licensor's Products against
improper use including, but not limited to, notifying Licensee's customers using
the Licensor's Products hereunder that use of the Licensor's Products may only
be in connection with Licensee's or the customer's business, and not for purpose
of re-selling or re-marketing the Licensor's Products.
C. In the event of an actual breach of the provisions of this
Section 9, Licensor, after providing written notice of such actual breach which
permits Licensee a thirty (30) day period to cure such actual breach, shall be
entitled to request an injunction restraining the Licensee from such breach, and
this shall be in addition to any of the rights or remedies to which Licensor may
be entitled.
D. Licensee acknowledges that the Licensor's Products represent
a substantial investment by Licensor in compliance, composition, computer system
compatibility and creation costs. Licensee further acknowledges that Licensor
claims that the value of the Licensor's Products is protected under various
intellectual property laws such as trademark, copyright, trade secrets and/or
the Berne Convention Implementation Act of 1988 and/or applicable common law.
The grant of the License to Licensee does not imply or convey permission to
reproduce, employ or otherwise use the Licensor's Products, except as set forth
in this Agreement. The acknowledgment and agreement of Licensee to the
provisions of this Paragraph D is an essential part of the License absent which
Licensor would not have entered into this Agreement with Licensee.
E. Licensor represents and warrants to Licensee that Licensor
owns or otherwise has all rights, title and interest to the Licensor's Products
and all modifications and enhancements to the Licensor's Products, and all
applicable rights to the patents, copyrights, trademarks and trade secrets used
in the Licensor's Products. Neither the Licensor's Products nor any part thereof
infringes or misappropriates any copyright, patent, trade secret or other
proprietary right of any third party. Licensor agrees to indemnify and hold
Licensee and its customers harmless from any and all damages, costs,
liabilities, expenses and attorneys fees (including without limitation royalties
and license fees) incurred by Licensee which arise out of
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any claim, suit or proceeding alleging that use of the Licensor's Products
infringes upon any copyright, patent, trade secret or any other proprietary
right of any third party. Licensor shall defend, compromise or settle any such
claim, suit or proceeding without Licensee or its customers incurring liability
and Licensee shall give Licensor all available information, assistance and
authority to enable Licensor to do so. If any claim, demand or action brought
hereunder against Licensor or Licensee is based on allegations which, if true,
is made which, if true, would constitute a breach of the warranty of
non-infringement contained in this Section 8.E., then Licensor, at its option
and expense, shall have the right to do any one or more of the following:
1. Obtain for Licensee the right to continue using
Licensor's Products or components of Licensor's Products or modified versions
thereof while ensuring that the Licensor's Products maintain all of their
functionality, or,
2. Replace all or part of the Licensor's Products or
components with non-infringing Products or components while ensuring that the
Licensor's Products maintain all of their functionality, or,
3. Terminate the license granted Licensee to the
Licensor's Products or components and refund to the Licensee an amount equal to
the payments made by Licensee as of the date of the breach of this warranty of
non-infringement.
10. Term and Termination. The term of this Agreement shall commence as
of the date hereof and shall continue until terminated for any of the following
reasons:
A. Licensee fails to pay Licensor any license fees or charges,
excluding Maintenance Fees and such non-payment has not been cured within thirty
(30) days following Licensor's written notice thereof.
B. Licensee is in material default of any other provisions
hereof and such material default has not been cured within thirty (30) days
after Licensor gives Licensee written notice thereof.
C. The parties mutually agree in writing to terminate this
Agreement.
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D. Ninety (90) days notice from Licensee to Licensor.
E. Licensee becomes insolvent or seeks protection voluntarily or
involuntarily under any bankruptcy law or discontinues it business style as it
now exists.
In the event of any termination pursuant to Section 10, the Licensee
shall cease any further deployment at new customers' sites of the Licensor's
Products. Licensee is specifically permitted, in the event of such termination,
to continue to support with Licensor's Products its then installed customer
base, conditioned upon all applicable portions of this Agreement being honored
during this time, until such time as a mutually agreed upon cessation date is
determined by Licensor and Licensee or two years from date of termination, which
ever comes first.
11. Negation of Warranty and Limitation of Liability.
A. The Licensor's Products are provided on an "as-is" basis, and
except as expressly set forth in this Agreement, there are no warranties,
expressed or implied, including but not limited to, any warranty of
merchantability or fitness for a particular purpose. Licensee acknowledges that
Licensee has examined or will examine Licensor's Products and found them
acceptable for Licensee's purposes as set forth in this Agreement. Licensee
shall be solely responsible for the selection, use, efficiency and suitability
of the Licensor's Products and Licensor shall have no liability therefore.
Furthermore, Licensor shall not be responsible for installing Licensor's
Products nor for training Licensee's personnel in the operation of Licensor's
Products, except as detailed in this Agreement.
B. In no event shall Licensor be liable for any indirect,
special or consequential damages or lost profits arising out of or related to
this Agreement or the performance or breach hereof, even if Licensor has been
advised of the possibility thereof, including but not limited to, any loss of
data or software, even if the cause thereof is the inability of Licensor to
correct any errors, malfunctions and defects in the software. Licensor's
liability to Licensee, if any, shall in no event exceed the total of the license
fees paid to Licensor hereunder by Licensee.
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12. Source Code Escrow. Licensor shall place in escrow with Fort Xxxx
Escrow Services, Inc., and both Licensor and Licensee shall enter into a
standard Ft. Xxxx Three Party Agreement (Exhibit C), with Licensor absorbing the
costs thereof, the compiled source code for all of the Licensor's Products used
at any time by Licensee, as updated from time to time (the "Source Code"). Upon
the occurrence of any of the following events, the Source Code shall be released
to Licensee:
A. (i) The commencement by Licensor as debtor of any case or
proceeding under any bankruptcy, insolvency, reorganization, liquidation,
dissolution or similar law, or Licensor seeking the appointment of a receiver,
trustee, custodian, marshal (of assets) or similar official for Licensor or any
substantial part of its property; or (ii) the commencement of any such case or
proceeding against Licensor, or another seeking such appointment, or the filing
against Licensor of an application for a protective decree that (a) is consented
to or not timely contested by Licensor, (b) results in the entry of an order for
relief, such an appointment, the issuance of such a protective decree or the
entry of an order having a similar effect, or (c) is not dismissed within ninety
(90) days; or (iii) the making of a general assignment by Licensor for the
benefit of its creditors; or (iv) an admission in writing by Licensor of its
inability to pay its debts as they become due or the nonpayment generally by
Licensor of its debts as they become due.
B. Material non-performance by Licensor of its obligations under
this Agreement and such non-performance continues for a period of thirty (30)
days after Licensee gives notice to Licensor of such non-performance.
C. This Agreement is terminated by Licensor without cause or for
any cause other than those described elsewhere in Section 10.
In the event the Source Code is so released to Licensee, Licensee agrees
that it will not at any time use the Source Code for the purpose of selling or
licensing the Licensor's Products to entities which are not its then existing
customers, except if such release is for the events covered in 12.B above, in
which case Licensee may continue to sell and deploy to new customers. No
termination of this Agreement shall release Licensee from its obligations to pay
Licensor any
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royalties or fees, which accrued prior to such termination or which shall accrue
to Licensor after the effective date of such termination.
13. Miscellaneous.
A. Notices. All notices, demands, requests, claims and other
communications given in connection with this Agreement shall be in writing and
shall be deemed duly given upon delivery if served personally or three (3) days
after mailing if mailed by registered or certified United States mail, return
receipt requested, postage prepaid. Either party may send any notice, demand,
request, etc., in connection with this Agreement using any other means
(including expedited courier, facsimile transmission or electronic mail), but no
such communication shall be deemed to have been duly given unless and until it
is actually received by the intended recipient. Notices shall be directed to the
parties at their respective addresses set forth in the signature blocks below or
at such other addresses as the parties may indicate by notice.
B. Severability. If any provision of this Agreement is found to
be unenforceable pursuant to an applicable judicial decree or decision, the
provision shall be deemed to apply only to the maximum extent permitted by law,
and the remainder of this Agreement shall remain valid and enforceable according
to its terms.
C. Interpretation. The titles and headings of the various
sections of this Agreement are intended solely for reference and are not
intended to explain, modify or place any interpretation upon any provision of
this Agreement. The language used in this Agreement shall be deemed to be the
language chosen by the parties to express their mutual intent, and no rule of
strict construction shall be applied against either party. The provisions of
this Agreement shall be interpreted in a reasonable manner to effect the
purposes and intents of the parties.
E. Entire Agreement; Inconsistencies. This Agreement, which
includes and hereby incorporates the attached EXHIBIT A THROUGH C constitutes
and sets forth the entire agreement between Licensee and Licensor concerning the
subject matter of this Agreement and supersedes any prior promises,
understandings, agreements, representations and warranties,
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written or oral. If any inconsistencies should arise between the provisions of
this Agreement and the provisions of the Exhibits, the provisions of this
Agreement shall control.
E. Modifications; Waivers. No provision of this Agreement may be
changed, waived, discharged, modified, or amended except by an instrument in
writing signed by the party to be charged. No delay or failure on the part of a
party to exercise any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any power or right preclude
any other further exercise thereof, or the exercise of any other power or right.
F. Assignment. Subject to the limitations of Section 2.A.8.,
Licensee may assign its rights or delegate its duties under this Agreement, in
whole or in part only to any Affiliate or other successor in interest to
licensee who agrees in writing to the terms of this Agreement. Subject to the
preceding sentence, this Agreement shall be binding on and inure to the benefit
of the parties and their respective successors and assigns.
G. Survival. The rights and obligations of the parties
thereunder shall survive any termination of this Agreement.
H. Costs. If any legal action, arbitration or other proceeding
is instituted to enforce or declare rights under any provisions of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation under or in connection with this Agreement, the prevailing
party shall be entitled to recover reasonable attorneys' fees and other costs
incurred in that action, arbitration or proceeding in addition to any other
relief to which the party may be entitled.
I. Non-exclusive Remedies. No remedy conferred or reserved in
this Agreement is intended to be exclusive of any other available remedy or
remedies, and each and every remedy shall be cumulative and shall be in addition
to and not to the exclusion of every other remedy now or hereafter existing at
law or in equity, including foreign laws.
J. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan.
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K. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
L. Force Majeure. Neither of the parties shall be deemed to be
in default or to have breached any provision of this Agreement as a result of
any delay, failure in performance, or interruption of service resulting directly
or indirectly from acts of God, acts of civil or military authorities, civil
disturbances, wars, strikes or other labor disputes, fires, transportation
contingencies, laws, regulations, acts or orders of any government or agency or
official thereof, other catastrophes or any other similar occurrences beyond the
party's reasonable control. In every case, the delay or failure in performance
or interruption of service must be without the fault or negligence of the party
claiming the excusable delay, and the party claiming the excusable delay must
promptly notify the other party of the delay and the reason therefor. Any
performance time under this Agreement shall be considered extended for a period
of time equivalent to the time lost because of any delay which is excusable
under this Paragraph M; provided, however, that if any excusable delay continues
for a period of more than 30 days, the party not claiming the excusable delay
shall have the option of terminating this Agreement upon written notice to the
party claiming the excusable delay.
M. Authority. If the person signing this Agreement is doing so
in a representative capacity, then by signing below, the representative
warrants, in his/her individual capacity, that his/her principal has approved
the terms and conditions of this Agreement and has duly authorized him/her to
execute and deliver this Agreement on his/her principal's behalf.
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This Agreement is executed on this 12 day of May, 1999.
Licensor:
CBF Systems, Inc., a Michigan corporation
By: /s/ X.X. XXXX
--------------------------------------
Name: X.X. Xxxx
Title: President
Address:
00000 Xxxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
Licensee:
Interlinq Software Corporation,
a Washington corporation
By: /s/ XXXXXXXX XXXXXX
--------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Executive Vice-President
Address: 00000 XX 00xx Xxxxxx
Xxxxxxxx, XX 00000
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EXHIBIT A
PRODUCTS & PRICES
This Exhibit is an integral part of a Licensing
Agreement dated May 12, 1999
Between
CBF Systems, Inc
And
Interlinq Software Corporation
1. Licensor's Products. The following proprietary products, commercially
trademarked by Licensor, are the deliverables under this Agreement:
X. Xxxxx Complete (version 4.1): Our client-server based, scalable
document control system.
X. Xxxxx Laptop: Our laptop subset of Rakis Complete, based upon
Access Jet.
C. I-32 Forms Design (version 6.0): An Interlinq labeled version of
our forms design tool to be embedded within Licensee's software for
use of their end users.
X. Xxxxx Complete, Rakis Laptop and I-32 Forms Design Maintenance:
Licensor will provide a software maintenance function to Licensee for
bug fixes, modifications and corrections to these products.
E. .pcl to .uff Conversion Program: Licensor will provide Licensee
with a conversion routine for Licensee to distribute to its end-users
to facilitate the conversion of custom forms created by the end-user
in Licensee's format to Licensor's I-32 .uff format.
F. Standard CDE's, Templates and Universal Template: Licensor will
create and deliver to Licensee an agreed upon list and number of
Standard CDE's, Templates and Universal Template in support of
Licensor's Standard Forms Library for Licensee to embed within
Licensee's software.
G. Entre Forms Set: Licensor will create and permit the embedding of
an agreed upon forms set for deployment with Licensee's Entre Loan
Origination System. This forms set will be maintained as to compliance
and file format by Licensor. Licensee is permitted to distribute the
forms set to its licensed end-users.
H. Core Document Set: Licensor will provide and maintain the Core
Document Set (some 63 forms) for Licensee to distribute without
additional charge to its end-users. This is based on condition that
Licensee will support Licensor's Compliance Subscription Program as
the primary mechanism for Licensee's end-users to obtain their
mortgage lending documents.
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2. Componentry Utilized. Rakis, and the subsets of Rakis listed in Section 1,
employ licensed software components from the following companies:
Product Name Version Company
------------ ------- -------
Windows 95 95 Microsoft
Windows NT 4.0 Microsoft
Visual Basic 6.0 Microsoft
Visual C++ 5.0 Microsoft
SQL Server 7.0 Microsoft
Access Jet Office 97 Microsoft
SmartBatch(32) 2.03 Online Tool Works
LanYard 3.18 CBF Systems, Inc.
SeaReach 3.37 CBF Systems, Inc.
SpreadVBX 2.5.3. Farpoint Technologies
Crystal Reports 4.3/5.0 Seagate
3. Pricing.
A. License Fees:
1. Licensee shall pay the following ONE TIME License fee to Licensor
OF $812,500. Such fees shall be invoiced and payable upon the EARLIER
of a.) Delivery of the products, or b) JUNE 30, 1999. THE PRODUCTS
INCLUDE:
x. Xxxxx Complete (version 4.1):
x. Xxxxx Laptop
c. I-32 Design -0-
B. Additional License Fees for Existing Users of Licensee's Products:
1. Licensee will pay a license fee for each copy of the private
labeled I-32 Forms Design that is embedded with Licensee's products
and delivered to an end-user. License fee per copy: $25.00
C. Additional License Fees for New Customers of Licensee's Products:
1. Licensee will pay to Licensor a flat percentage of Licensee's net
end-user license value for all new customers of Licensee's TC, LMS
and/or Entre products for the right to embed and distribute Licensor's
Products within Licensee's software. A new customer is defined as any
end-user not a licensed customer of Licensee's named software products
as of June 30, 1999. Net end-user license value is defined as
Licensee's revenue for TC, LMS and/or Entre invoiced by Licensee to an
end-user, net of any discounts, bad debts, and, exclusive of taxes,
shipping and returns. Licensee will report and remit this percentage
within thirty (30) days following the close of each of Licensee's
fiscal quarters. The flat percentage is established at: 2% of Net
End-User License Value.
2. Licensee will pay a license fee for each copy of the private
labeled I-32 Forms Design that is embedded with Licensee's products
and delivered to a new end-user as defined above. License fee per
copy: $25.00.
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X. Xxxxx Complete, Rakis Laptop and I-32 Forms Design Maintenance: As detailed
in Exhibit C of this Agreement, Licensor products include a Maintenance
Agreement for bug fixes, modifications, corrections, updates (collectively
referred to as "Releases"), and, further Releases issued by Licensor to
the supported products. The Maintenance Agreement is mandatory during the
first year of the base License Agreement and is optional on the part of the
Licensee for subsequent years. Annual Maintenance Contract: $55,000
E. Implementation and Training: Licensor, at Licensee's request, will provide
its quotation for either of these professional services which in Licensee's
sole judgement are required over and above the services offered within
Licensor's base License Agreement.
This Exhibit A of the License Agreement is executed on this 12 day of May,
1999.
Licensor: Licensee:
CBF Systems, Inc., Interlinq Software Corporation
a Michigan corporation a Washington corporation
By: /s/ XXXXXX X. XXXX By: /s/ XXXXXXXX XXXXXX
----------------------- ---------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxxxxx Xxxxxx
Title: President Title: EVP
Address: Address:
00000 Xxxxxxx Xxxx Xxxx 00000 XX 00xx Xx.
Xxxxxx, XX 00000 Xxxxxxxx, XX 00000
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EXHIBIT B
SOFTWARE MAINTENANCE AGREEMENT
This Software Maintenance Agreement ("Agreement") is made by and between
Interlinq Software Corporation, a Washington corporation ("Interlinq") and CBF
Systems, Inc., a Michigan corporation ("CBF"), effective as of the 12 day of
May, 1999.
RECITALS UNDERLYING THIS AGREEMENT
Recital A. Interlinq and CBF entered into a certain Software License
Agreement dated May 12, 1999, ("License Agreement") providing for the grant to
Interlinq by CBF of a non-exclusive license to use CBF's Rakis Software ("Rakis
Programs").
Recital B. The License Agreement requires that CBF maintain the Rakis
Programs for at least the first year following Acceptance of the Rakis Programs
by Interlinq and prepare and present Interlinq with a Software Maintenance
Agreement defining the parties' duties with regard thereto.
Recital C. Interlinq and CBF desire to enter into this Software Maintenance
Agreement reflecting CBF's responsibilities for maintenance of the Rakis
Programs.
NOW, THEREFORE, for and in consideration of the premises and of the mutual
representations, warranties, covenants, and agreements contained herein, and
upon the terms and subject to the conditions hereinafter set forth, the parties
agree as follows:
1.0. Duties of CBF. During the term of this Agreement, CBF shall perform
the following services concerning the Rakis Programs:
1.1. CBF shall provide to Interlinq all updates, corrections, and,
modifications (collectively referred to as "Releases") to the Rakis Programs in
the form of fixes and further releases that CBF makes generally available to
all licensed end-users as a part of its obligations under its Software
Maintenance Agreements. Such Releases shall be without additional charges and
shall be distributed at least once each year.
1.2. The Releases, when delivered, shall become part of the Rakis
Programs, shall be maintained in accordance with this Agreement, and shall
otherwise be subject to all of the terms of the License Agreement.
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1.3. CBF shall correct, within a reasonable period of time as defined by
Section 3, any material, reproducible error or malfunction in the Rakis
Programs. CBF agrees to commence correction within eight (8) business hours
after such error or malfunction is detected. If CBF, in its discretion, requests
written verification of an error or malfunction discovered by Interlinq,
Interlinq shall immediately provide such verification, by telecopy or overnight
mail, setting forth in reasonable detail the respects in which the Rakis
Programs fail to perform. An error or malfunction shall be "material" if it
represents a nonconformity with CBF's current published specifications for the
Rakis Programs and Interlinq, in its discretion, determines (and notifies CBF)
that such error or malfunction interferes with its use or its direct customers'
use of the Rakis Programs.
1.4. Interlinq shall reimburse CBF at CBF's then current time and material
rates for all work of CBF spent investigating an error or malfunction that is
caused by a modification to the Rakis Programs that was neither made nor
authorized by CBF.
1.5. CBF shall, during the hours of 8:00 a.m. to 5:00 p.m. Pacific Time on
weekdays (exclusive of holidays), make reasonable telephone support available to
Interlinq.
2.0. RAKIS Program Modifications. Interlinq may at any time request that
CBF make additional modifications to the Rakis Programs to add functions or
improve performance. CBF shall, within sixty (60) days after receiving
Interlinq's request in writing, take one of the following actions, in its sole
discretion:
2.1. Notify Interlinq that CBF has determined that the modification would
be of sufficient interest to enough licensees that CBF intends to
provide such modification as part of its regular maintenance service.
Such notice shall specify an estimated date on which the modification
may be supplied.
2.2. Notify Interlinq that CBF has determined that the modification will be
undertaken only on an individual basis and provide Interlinq with a
written estimate of the charges for performing such modification. If
Interlinq accepts CBF's proposal by written notice, CBF agrees to
perform the modification for the estimated charges plus out-of-pocket
expenses for travel and materials. Interlinq acknowledges that CBF may
impose additional charges, calculated at its then current time and
material rates, for work performed to accommodate revisions to the
request for modification if such revisions are requested by Interlinq
after Interlinq accepts the estimate. If CBF subsequently decides to
include any substantial part of such modification in its regular
maintenance services for other end-users, it shall rebate one half of
the amount previously paid for such service by Interlinq.
3. Service Response and Correction Times. CBF agrees to respond to each
request for
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support, maintenance and other assistance as quickly as reasonably possible,
but in any event within the following service levels:
3.1. Severity 1 bugs defined as Rakis print client or print server
crashing, or causing data loss, or breaks in major functionality, or
severe problems with no available workarounds.
Response Time: One hour
Problem Identification: One day
Problem Resolution: One day
Preferred Notification: Telephonic with written follow-up detailing
problem
3.2. Severity 2 bugs defined as annoying, contributes to overall
instability, crashes in obscure cases or in non critical modules, breaks
in minor functionality where there is a work around, but the work around
is cumbersome.
Response Time: One day
Problem Identification: One week
Problem Resolution: Two weeks
Preferred Notification: Telephonic with written follow-up detailing
problem
3.3. Severity 3 bugs defined as minor, does not impair functionality, may
affect "fit and finish".
Response Time: One week
Problem Identification: One month
Problem Resolution: With release
Preferred Notification: Electronic with detail of problem
3.4. Severity 4 bugs defined as trivial
Response Time: One week
Problem Resolution: With release
Preferred Notification: Electronic with written detail of problem
3.5. Response Time is defined as acknowledgement of reported problem with
detailed description. Problem Identification is defined as clear
understanding of problem cause and our best effort in its reproduction in
a development or test environment. Problem Resolution defined as
distribution of appropriate code or instructions to remedy problem and
includes remedies that may reclassify problems from a higher severity
level to a lower severity level for continued Identification and
Resolution. Aforementioned response times defined between the hours of
8:00 a.m. and 5:00 p.m. weekdays, Pacific Time excluding banking and
federal holidays. The measure of CBF's response shall commence upon
Interlinq' delivery of notice (written, facsimile, telephonic, electronic
or otherwise) to CBF at 00000 Xxxxxxx Xxxx xxxx, Xxxxxx, XX 00000, (810)
293-8100 or as designated by CBF. CBF agrees to use good faith efforts to
promptly cure each problem claimed by Interlinq, upon notice from
Interlinq as hereinbefore described.
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4. Travel and Lodging. Any travel, lodging and related expenditures
incurred by CBF's personnel in connection with the provision of services under
this Agreement shall be CBF's sole responsibility unless CBF obtains prior
written approval from Interlinq, in which case Interlinq agrees to reimburse
CBF for reasonably incurred expenses in accordance with Interlinq's
reimbursement policies.
5. Term. For a period commencing on the effective date hereof and ending
one (1) year thereafter, CBF agrees to perform its obligations under this
Agreement. Interlinq may, at its option, extend CBF's obligations under this
agreement for successive additional one-year terms, upon written notice to CBF,
given prior to the end of the then current term, provided Interlinq agrees to
pay the fees set forth in the following Section 7.
7. Fees and Taxes. In consideration of CBF's performance of its
obligations hereunder, Interlinq shall pay to CBF an annual maintenance fee for
the first year of this Agreement of Fifty-Five Thousand Dollars ($55,000.00).
The annual maintenance fees shall include all applicable taxes based on or in
any way measured by this Agreement or any services related thereto. If
Interlinq challenges the applicability of any such taxes, it shall pay the same
to CBF and Interlinq may thereafter challenge such tax and seek refund thereof.
The annual maintenance fees and taxes shall be due and payable in advance
within ten days after the due date set forth hereof and the submission of an
invoice therefor by CBF. Interlinq shall pay a late payment charge of 1.5
percent per month, or the maximum rate permitted by applicable law, whichever is
less, on any unpaid amounts for each calendar month or fraction thereof that
any payment to CBF is more than thirty (30) days in arrears.
8. Proprietary Rights and Indemnification. CBF shall own the entire right,
title and interest in and to all corrections, programs, information and work
product conceived, created or developed as a result of or related to the
performance of this Agreement, including all proprietary rights therein or
based thereon. All Modifications provided to Interlinq shall become part of the
RAKIS Programs and their use by Interlinq shall be governed by the terms and
conditions of the License Agreement.
9. Negation of Warranty. CBF DOES NOT WARRANT THE SERVICES PROVIDED UNDER
THIS AGREEMENT OR THAT THE RAKIS PROGRAMS WILL MEET OR CONTINUE TO MEET THE
SPECIFICATIONS OR THAT ANY OR ALL ERRORS, MALFUNCTIONS AND DEFECTS CAN OR WILL
BE CORRECTED. ALL CORRECTIONS, PROGRAMS, INFORMATION AND SERVICES ARE PROVIDED
ON AN "AS IS" BASIS, SUBJECT TO CBF'S BEST EFFORTS, AND THERE ARE NO
WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.
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10. Limitation of Liability.
A. CBF SHALL NOT BE LIABLE TO INTERLINQ FOR ANY DAMAGES RESULTING FROM
OR RELATED TO THE SERVICES PERFORMED BY CBF HEREUNDER, INCLUDING, BUT NOT
LIMITED TO, ANY LOSS OF DATA OR SOFTWARE, INABILITY OF CBF TO CORRECT ANY
ERRORS, MALFUNCTIONS AND DEFECTS IN THE SOFTWARE, OR DELAY OF CBF IN PERFORMING
ANY SERVICES HEREUNDER.
B. IN NO EVENT SHALL CBF BE LIABLE TO INTERLINQ FOR ANY INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO
THIS AGREEMENT, EVEN IF CBF HAS BEEN ADVISED OF THE POSSIBILITY THEREOF OR KNEW
OR SHOULD HAVE KNOWN THEREOF. CBF'S LIABILITY HEREUNDER TO INTERLINQ IF ANY,
SHALL IN NO EVENT EXCEED THE CURRENT YEAR'S ANNUAL MAINTENANCE FEES PAID TO CBF
HEREUNDER BY INTERLINQ.
11. Termination/Cancellation. This Agreement may be terminated by CBF if
Interlinq fails to pay within thirty (30) days from receipt of an invoice the
maintenance fees due CBF hereunder. In addition, this Agreement may be
terminated/canceled by either party if the other party is in default of any
material provision, including non-payment, of this Agreement, provided written
notice of such alleged default has been given to the other party and such
other party has not cured such default within thirty (30) days after the
receipt of such notice. The failure of either party hereunder to exercise its
rights of termination/cancellation as provided herein shall not be deemed a
waiver or limitation of the rights of such party to subsequently
terminate/cancel this Agreement for any other or similar default. In the event
termination results from a breach or default by CBF, Interlinq shall be
entitled to a pro rata reimbursement of the annual maintenance fee based upon
the number of months remaining in the then current term of this Agreement.
12. Miscellaneous.
12.1. Notices. All notices, demands, requests, claims and other
communications given in connection with this Agreement shall be in writing and
shall be deemed duly given upon delivery if served personally or three (3) days
after mailing if mailed by registered or certified United States mail, return
receipt requested, postage prepaid. Either party may send any notice, demand,
request, etc., in connection with this Agreement using any other means
(including expedited courier, facsimile transmission or electronic mail), but
no such communication shall be deemed to have been duly given unless and until
it is actually received by the intended recipient. Notices shall be directed to
the parties at their respective addresses set forth in the signature blocks
below or at such other addresses as the parties may indicate by notice.
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12.2. Severability. If any provision of this Agreement is found to be
unenforceable pursuant to an applicable judicial decree or decision, the
provision shall be deemed to apply only to the maximum extent permitted by law,
and the remainder of this Agreement shall remain valid and enforceable
according to its terms.
12.3. Interpretation. The titles and headings of the various sections of
this Agreement are intended solely for reference and are not intended to
explain, modify or place any interpretation upon any provision of this
Agreement. The language used in this Agreement shall be deemed to be the
language chosen by the parties to express their mutual intent, and no rule of
strict construction shall be applied against either party. Any rule of law or
legal decision that would require interpretation of any ambiguities in this
Agreement against the party who has drafted it is not applicable and is hereby
waived by each party. The provisions of this Agreement shall be interpreted in
a reasonable manner to effect the purposes and intents of the parties.
12.4. Entire Agreement; Inconsistencies. This Agreement constitutes and
sets forth the entire agreement between Interlinq and CBF concerning the
subject matter of this Agreement and supersedes any prior promises,
understandings, agreements, representations and warranties, written or oral.
12.5. Modifications; Waivers. No provision of this Agreement may be
changed, waived, discharged, modified, or amended except by an instrument in
writing signed by the party to be charged. No delay or failure on the part of a
party to exercise any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any power or right
preclude any other further exercise thereof, or the exercise of any other power
or right. Only an executive officer of Interlinq and CBF is authorized to
execute any waivers, modifications, amendments or other changes to this
Agreement on behalf of Interlinq and CBF.
12.6. Assignment. Interlinq may assign its rights to this Agreement in
accordance with the Assignment restrictions contained in Section 2.A.8. of the
License Agreement. Subject to the preceding sentence, this Agreement shall be
binding on and inure to the benefit of the parties and their respective
successors and assigns.
12.7. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Michigan, without giving
effect to any choice or conflict of law provision or rule (whether of the
State of Michigan or any other jurisdiction), that would cause the application
of the laws of any jurisdiction other than the State of Michigan.
12.8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12.9. Force Majeure. Neither of the parties shall be deemed to be in
default or to have
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breached any provision of this Agreement as a result of any delay, failure in
performance, or interruption of service resulting directly or indirectly from
acts of God, acts of civil or military authorities, civil disturbances, wars,
strikes or other labor disputes, fires, transportation contingencies, laws,
regulations, acts or orders of any government or agency of official thereof,
other catastrophes or any other similar occurrences beyond the party's
reasonable control. In every case, the delay or failure in performance or
interruption of service must be without the fault or negligence of the party
claiming the excusable delay, and the party claiming the excusable delay must
promptly notify the other party of the delay and the reason therefor. Any
performance time under this Agreement shall be considered extended for a period
of time equivalent to the time lost because of any delay which is excusable
under this Section 12; provided, however, that if any excusable delay continues
for a period of more than thirty (30) days, the party not claiming the
excusable delay shall have the option of terminating this Agreement upon
written notice to the party claiming the excusable delay.
12.10. Authority. If the person signing this Agreement is doing so in a
representative capacity, then by signing below, the representative warrants, in
his/her individual capacity, that his/her principal has approved the terms and
conditions of this Agreement and has duly authorized him/her to execute and
deliver this Agreement on his/her principal's behalf.
12.11. CBF's Ability to Sub-Contract. CBF hereby notifies Licensee that
it intends to sub-contract this Maintenance Agreement to a vendor of its sole
choosing and that vendor has reviewed and accepted each condition and
requirement of this Maintenance Agreement. Such sub-contract does not in any
way relieve CBF from fulfilling any of the terms and obligations of this
Maintenance Agreement.
This Agreement is executed on this 12 day of May 1999.
Interlinq: CBF:
Interlinq Software Corporation CBF Systems,Inc.
a Washington corporation a Michigan corporation
By: /s/ XXXXXXXX XXXXXX By: /s/ XXXXXX X. XXXX
--------------------------------- ---------------------------------
Its: EVP Its: President
Address: Address:
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EXHIBIT C
SOFTWARE ESCROW AGREEMENT
This Escrow Agreement ("Agreement") is made as of this 12 day of May, 1999,
by and between CBF Systems, Inc ("Producer"), Fort Xxxx Escrow Services, Inc.
("Fort Xxxx") and Interlinq Software Corporation ("Licensee").
Preliminary Statement. Producer intends to deliver to Fort Xxxx a sealed
package containing magnetic tapes, disks, disk packs, or other forms of media,
in machine readable form, and the written documentation prepared in connection
therewith, and any subsequent updates or changes thereto (the "Deposit
Materials") for the computer software products (the "System(s)"), all as
identified from time to time on Attachment #2 hereto. Producer desires Fort Xxxx
to hold the Deposit Materials, and, upon certain events, deliver the Deposit
Materials (or a copy thereof) to Licensee, in accordance with the terms hereof.
Now, therefore, in consideration of the foregoing, of the mutual promises
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Delivery by Producer. Producer shall be solely responsible for
delivering to Fort Xxxx the Deposit Materials as soon as practicable. Fort Xxxx
shall hold the Deposit Materials in accordance with the terms hereof and shall
have no obligation to verify the completeness or accuracy of the Deposit
Materials.
2. Duplication; Updates.
(a) Fort Xxxx may duplicate the Deposit Materials by any means in order to
comply with the terms and provisions of this Agreement, provided that Licensee
shall bear the expense of duplication. Alternately, Fort Xxxx, by notice to
Producer, may reasonably require Producer to promptly duplicate the Deposit
Materials.
(b) Producer shall deposit with Fort Xxxx any modifications, updates, new
releases or documentation related to the Deposit Materials by delivering to Fort
Xxxx an updated version of the Deposit Materials ("Additional Deposit") as soon
as practicable after the modifications, updates, new releases and documentation
have been developed by Producer. Fort Xxxx shall have no obligation to verify
the accuracy or completeness of any Additional Deposit or to verify that any
Additional Deposit is in fact a copy of the Deposit Materials or any
modification, update, or new release thereof.
3. Notification of Deposits. Simultaneous with the delivery to Fort Xxxx
of the Deposit Materials or any Additional Deposit, as the case may be, Producer
shall deliver to Fort Xxxx and to Licensee a written statement specifically
identifying all items deposited and stating that the Deposit Materials or any
Additional Deposit, as the case may be, so deposited have been inspected by
Producer and are complete and accurate. Fort Xxxx shall, within ten (10)
business days of receipt of any Deposit Materials, send notification to Producer
and Licensee that it has received from Producer such Deposit Materials.
4. Delivery by Fort Xxxx.
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4.1 Delivery by Fort Xxxx to Licensee. Fort Xxxx shall deliver the
Deposit Materials, or a copy thereof, to Licensee only in the event that:
(a) Producer notifies Fort Xxxx to effect such delivery to Licensee at a
specific address, the notification being accompanied by a check payable to Fort
Xxxx in the amount of one hundred dollars ($100.00); or
(b) Fort Xxxx receives from Licensee:
(i) written notification that Producer has failed in a material
respect to support the applicable System as required by a
license agreement ("License Agreement") between Licensee and
Producer or that Producer has otherwise defaulted in a material
respect under the License Agreement ("Producer Default");
(ii) evidence satisfactory to Fort Xxxx that Licensee has previously
notified Producer of such Producer Default in writing;
(iii) a written demand that the Deposit Materials be released and
delivered to Licensee;
(iv) a written undertaking from the Licensee that the Deposit
Materials being supplied to the Licensee will be used only as
permitted under the terms of the License Agreement;
(v) specific instructions from the Licensee for this delivery; and
(vi) an initial check payable to Fort Xxxx in the amount of one
hundred dollars ($100.00).
(c) If the provisions of paragraph 4.1(a) are satisfied, Fort Xxxx shall,
within five (5) business days after receipt of the notification and check
specified in paragraph 4.1(a), deliver the Deposit Materials in accordance with
the applicable instructions.
(d) If the provisions of paragraph 4.1(b) are met, Fort Xxxx shall,
within five (5) business days after receipt of all the documents specified in
paragraph 4.1(b), send to Producer a photostatic copy of all such documents.
Producer shall have fifteen (15) days from the date on which Producer receives
such documents ("Objection Period") to notify Fort Xxxx of its objection
("Objection Notice") to the release of the Deposit Materials to Licensee and to
request that the issue of Licensee's entitlement to a copy of the Deposit
Materials be submitted to arbitration in accordance with the following
provisions:
(i) If Producer shall send an Objection Notice to Fort Xxxx during
the Objection Period, the matter shall be submitted to, and
settled by arbitration by, a panel of three (3) arbitrators
chosen by the Atlanta Regional Office of the American
Arbitration Association in accordance with the rules of the
American Arbitration Association. The Arbitrators shall apply
Georgia law. At least one (1) arbitrator shall be reasonably
familiar with the computer software industry. The decision of
the arbitrators shall be binding and conclusive on all parties
involved, and judgment upon their decision may be entered in a
court of competent jurisdiction. All costs of the arbitration
incurred by Fort Xxxx, including reasonable attorneys' fees and
costs, shall be paid by the party which does not prevail in the
arbitration;
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provided, however, if the arbitration is settled prior to a
decision by the arbitrators, the Producer and Licensee shall each
pay 50% of all such costs.
(ii) Producer may, at any time prior to the commencement of
arbitration proceedings, notify Fort Xxxx that Producer has
withdrawn the Objection Notice. Upon receipt of any such notice
from Producer, Fort Xxxx shall reasonably promptly deliver the
Deposit Materials to Licensee in accordance with the instructions
specified in paragraph 4.1(b)(v).
(e) If, at the end of the Objection Period, Fort Xxxx has not received an
Objection Notice from Producer, then Fort Xxxx shall reasonably promptly
deliver the Deposit Materials to Licensee in accordance with the instructions
specified in paragraph 4.1(b)(v). Both Producer and Licensee agree that Fort
Xxxx shall not be required to deliver such Deposit Materials until all such fees
then due Fort Xxxx have been paid.
4.2 Delivery by Fort Xxxx to Producer. Fort Xxxx shall release and
deliver the Deposit Materials to Producer upon termination of this Agreement in
accordance with paragraph 7(a) hereof.
5. Indemnity. Producer and Licensee shall, jointly and severally,
indemnify and hold harmless Fort Xxxx and each of its directors, officers,
agents, employees and stockholders ("Fort Xxxx Indemnities") absolutely and
forever, from and against any and all claims, actions, damages, suits,
liabilities, obligations, costs, fees, charges, and any other expenses
whatsoever, including reasonable attorneys' fees and costs, that may be
asserted against any Fort Xxxx Indemnitee in connection with this Agreement or
the performance of Fort Xxxx or any Fort Xxxx Indemnitee hereunder.
6. Disputes and Interpleader
(a) Fort Xxxx may submit the matter to any court of competent
jurisdiction in an interpleader or similar action other than a matter
submitted to arbitration after Fort Xxxx'x receipt of an Objection Notice under
Section 4 and the parties under this Agreement submit the matter to such
arbitration as described in Section 4 of this Agreement. Any and all costs
incurred by Fort Xxxx in connection therewith, including reasonable attorneys'
fees and costs, shall be borne 50% by each of Producer and Licensee.
(b) Fort Xxxx shall perform any acts ordered by any court of competent
jurisdiction, without any liability or obligation to any party hereunder by
reason of such act.
7. Term and Renewal.
(a) The initial term of this Agreement shall be two (2) years, commencing
on the date hereof (the "Initial Term"). This Agreement shall be automatically
extended for an additional term of one year ("Additional Term") at the end of
the Initial Term and at the end of each Additional Term hereunder and shall
continue to be in effect as long as the License Agreement for Rakis Software,
dated 5-12-99 is in effect.
(b) In the event of termination of this Agreement in accordance with
paragraph 7(a) hereof, Producer shall pay all fees due Fort Xxxx and shall
promptly notify Producer that this Agreement has been terminated and that Fort
Xxxx shall return to Producer all copies of the Deposit Materials then in its
possession.
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(c) Should, for any reason, the parties agree to place the Source Code
with an Escrow Agent other than Ft. Xxxx, the parties will mutually instruct
Ft. Xxxx in writing to toward the Source Code to the designated Escrow Agent.
8. Fees. Producer and Licensee shall pay to Fort Xxxx the applicable
fees in accordance with Attachment #1 as compensation for Fort Xxxx'x services
under the Agreement. The first years fees are due upon receipt of the signed
contract or Deposit Materials, whichever comes first, and shall be paid in U.S.
Dollars.
(a) Payment. Fort Xxxx shall issue an invoice to Producer following
execution of this Agreement ("Initial Invoice"), on the commencement of any
Additional Term hereunder, and in connection with the performance of any
additional services hereunder. Payment is due upon receipt of invoice. All fees
and charges are exclusive of, and Producer is responsible for the payment of,
all sales, use and like taxes. Fort Xxxx shall have no obligations under this
Agreement until the Initial Invoice has been paid in full by Producer.
(b) Nonpayment. In the event of non-payment of any Fees or charges
invoiced by Fort Xxxx, Fort Xxxx shall give notice of non-payment of any fee due
and payable hereunder to the Producer and, in such an event, the Producer shall
have the right to pay the unpaid fee within ten (10) days after receipt of
notice from Fort Xxxx. If Producer fails to pay in full all fees due during such
ten (10) day period, Fort Xxxx shall give notice of non-payment of any fee due
and payable hereunder to Licensee and, in such event, Licensee shall have the
right to pay the unpaid fee within ten (10) days of receipt of such notice from
Fort Xxxx. Upon payment of the unpaid fee by either the Producer or Licensee, as
the case may be, this Agreement shall continue in full force and effect until
the end of the applicable term. Failure to pay the unpaid fee under this
paragraph 8(b) by both Producer and Licensee shall result in termination of this
Agreement.
9. Ownership of Deposit Materials. The parties recognize and
acknowledge that ownership of the Deposit Materials shall remain with Producer
at all times.
10. Available Verification Services. Upon receipt of a written request
from Licensee, Fort Xxxx and Licensee may enter into a separate agreement
pursuant to which Fort Xxxx will agree, upon certain terms and conditions, to
inspect the Deposit Materials for the purpose of verifying its relevance,
completeness, currency, accuracy and functionality ("Technical Verification
Agreement"). Upon written request from Producer, Fort Xxxx will issue to
Producer a copy of any written technical verification report rendered in
connection with such engagement. If Fort Xxxx and Licensee enter into such
Technical Verification Agreement, Producer shall reasonably cooperate with Fort
Xxxx by providing its facilities, computer systems, and technical and support
personnel for technical verification whenever reasonably necessary. If
requested by Licensee, Producer shall permit one employee of Licensee to be
present at Producer's facility during any such verification of the Deposit
Materials.
11. Bankruptcy. Producer and Licensee acknowledge that this Agreement is
an "agreement supplementary to" the License Agreement as provided in Section
365(n) of Xxxxx 00, Xxxxxx Xxxxxx Code (the "Bankruptcy Code"). Producer
acknowledges that if Producer as a debtor in possession or a trustee in
Bankruptcy in a case under the Bankruptcy Code rejects the License Agreement or
this Agreement, Licensee may elect to retain its rights under the License
Agreement and this Agreement as provided in Section 365(n) of the Bankruptcy
Code. Upon written request of License to Producer or the Bankruptcy Trustee,
Producer or such Bankruptcy Trustee shall not interfere with the rights of
Licensee as provided in the License Agreement and this Agreement, including the
right to obtain the Deposit Material from Fort Xxxx.
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12. Miscellaneous.
(a) Remedies. Except for intentional misrepresentation, gross negligence
or intentional misconduct, Fort Xxxx shall not be liable to Producer or to
Licensee for any act, or failure to act, by Fort Xxxx in connection with this
Agreement. Any liability of Fort Xxxx regardless of the cause shall be limited
to the fees exchanged under this Agreement. Fort Xxxx will not be liable for
special, indirect, incidental or consequential damages hereunder.
(b) Natural Degeneration; Updated Version. In addition, the parties
acknowledge that as a result of the passage of time alone, the Deposit Materials
are susceptible to loss of quality ("Natural Degeneration"). It is further
acknowledged that Fort Xxxx shall have no liability or responsibility to any
person or entity for any Natural Degeneration. For the purpose of reducing the
risk of Natural Degeneration, Producer shall deliver to Fort Xxxx a new copy of
the Deposit Materials at least once every three years.
(c) Permitted Reliance and Abstention. Fort Xxxx may rely and shall be
fully protected in acting or refraining from acting upon any notice or other
document believed by Fort Xxxx in good faith to be genuine and to have been
signed or presented by the proper person or entity. Fort Xxxx shall have no
duties or responsibilities except those expressly set forth herein.
(d) Independent Contractor. Fort Xxxx is an independent contractor, and is
not an employee or agent of either the Producer or Licensee.
(e) Amendments. This Agreement shall not be modified or amended except by
another agreement in writing executed by the parties hereto.
(f) Entire Agreement. This Agreement, including all attachments hereto,
supersedes all prior discussions, understandings and agreements between the
parties with respect to the matters contained herein, and constitutes the entire
agreement between the parties with respect to the matters contemplated herein.
All Attachments hereto are by this reference made a part of this Agreement and
are incorporated herein.
(g) Counterparts; Governing Law. This Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
Agreement. This Agreement shall be construed and enforced in accordance with the
laws of the State of Georgia.
(h) Confidentiality. Fort Xxxx will hold and release the Deposit Materials
only in accordance with the terms and conditions hereof, and will maintain the
confidentiality of the Deposit Materials.
(i) Notices. All notices, requests, demands or other communications
required or permitted to be given or made under this Agreement shall be in
writing and shall be delivered by hand or by commercial overnight delivery
service which provides for evidence of receipt, or mailed by certified mail,
return receipt requested, postage prepaid. If delivered personally or by
commercial overnight delivery service, the date on which the notice, request,
instruction or document is delivered shall be the date on which delivery is
deemed to be made, and if delivered by mail, the date on which such notice,
request, instruction or
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document is received shall be the date on which delivery is deemed to be made.
Any party may change its address for the purpose of this Agreement by notice in
writing to the other parties as provided herein.
(j) Survival. Paragraphs 5, 6, 8, 9 and 12 shall survive any
termination of this Agreement.
(k) No Waiver. No failure on the part of any party hereto to
exercise, and no delay in exercising any right, power or single or partial
exercise of any right, power or remedy by any party will preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
No express waiver or assent by any party hereto to any breach of or default in
any term or condition of this Agreement shall constitute a waiver of or an
assent to any succeeding breach of or default in the same or any other term or
condition hereof.
IN WITNESS WHEREOF each of the parties has caused its duly authorized
officer to execute this Agreement as of the date and year first above written.
FORT XXXX ESCROW SERVICES, INC.
0000X Xxxxxx Xxxxxx Phone: 0-000-000-0000
Xxxxxxxxx, Xxxxxxx 00000-0000 Fax: 0-000-000-0000
E-mail: xxxx@xxxxxxxxxxxxxx.xxx
By: Title:
-------------------------------- -----------------
Print Name:
-------------------------------------------------------
PRODUCER
By: /s/ XXXXXX X. XXXX Title: President
-------------------------------- -----------------
Print Name: Xxxxxx X. Xxxx
Address: 00000 00 Xxxx Xxxx
Xxxxxx, XX 00000
Phone: 000-000-0000 Fax: 000-000-0000
E-mail: Xxxxx@xxx.xxx
LICENSEE
By: /s/ XXXXXXXX XXXXXX Title: EVP
-------------------------------- -----------------
Print Name: Xxxxxxxx Xxxxxx
------------------------------------------------------
Address: 00000 XX 00xx Xx.
---------------------------------------------------------
Xxxxxxxx, XX 00000
---------------------------------------------------------
---------------------------------------------------------
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Phone: 000-000-0000 Fax:
------------ ----------------
E-mail: xxxx@xxxxxxxxx.xxx
----------------------------------
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ATTACHMENT #1
FEE SCHEDULE
FEES TO BE PAID BY PRODUCER SHALL BE AS FOLLOWS:
Initialization fee (one time only) $850
($765) for current clients)
Annual maintenance/storage fee
- includes two Deposit Material updates $900
- includes one cubic foot of storage space
- if Producer is outside North America - $1000/Product
--------------------------------------------------------------------------------
ADDITIONAL SERVICES AVAILABLE:
Additional Updates $150/Product
(above two per year)
Additional Storage Space $150/Cubic foot
Payable by Licensee or Producer Only Upon
Release Request:
Due Only Upon Licensee's or Producer's
Request for Release of Deposit Materials $100/Product per Licensee for
initial 2 hrs. and $50/hour for
each additional hour
--------------------------------------------------------------------------------
Fees due in full, in US dollars, upon receipt of signed contract or deposit
material, whichever comes first. Thereafter, fees shall be subject to their
current pricing, provided that such prices shall not increase by more than 10%
per year. The renewal date for this Agreement will occur on the anniversary of
the first invoice.
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