SOFTWARE LICENSING
AND
DISTRIBUTION AGREEMENT
Between
Xxxxxx Corporation
0000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
and
Cross/Z International, Inc.
00 Xxxxxxx Xxxxxxxxx Xxxx.
Xxxxxxxxx, Xxx Xxxx 00000
TABLE OF CONTENTS:
1. Definitions 1
2. License Rights 2
3. End User License 5
4. General Responsibilities of CrossZ 5
5. General Responsibilities of Xxxxxx 6
6. Disputes 6
7. Marketing Support 7
8. Maintenance and Support Services 8
9. Payment, Reporting and Taxes 8
10. Warranty 9
11. Confidential Information 10
12. Export Written Assurance 11
13. Term and Xxxxxxxxxxx 00
00. Intellectual Property Indemnification 12
15. Limitation of Liability 13
16. Press Releases 14
17. Assignment 14
18. Force Majeure 14
19. Severability 15
20. Waiver and Amendment 15
21. Compliance with Laws and Regulations 15
22. Notice 15
23. Relationship of Parties 16
24. Non-Solicitation 16
25. Governing Law 16
26. Headings 16
27. Cumulative Remedies 16
28. Right to Independent Development 17
29. Entire Agreement 17
Acceptance Signatures 17
Exhibit A 18
Exhibit B 19
Attachment 1 20
Attachment 2 21
Exhibit C 22
Exhibit D 23
This Software Licensing and Distribution Agreement ("Agreement")
entered into as of November 27, 1996 ("Effective Date") by and between Xxxxxx
Corporation, a Delaware corporation with principal offices located at 0000 Xxxx
Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000-0000, U.S.A. (hereafter "Xxxxxx") and Cross/Z
International, Inc., a California corporation ("CrossZ") with offices at 00
Xxxxxxx Xxxxxxxxx Xxxx., Xxxxxxxxx, Xxx Xxxx 00000, X.X.X.
WHEREAS, Xxxxxx wishes to license Software from CrossZ in order to
sublicense it to Distributors and End Users; and
WHEREAS, CrossZ is willing to license Software to Xxxxxx so Xxxxxx may
sublicense it to Distributors and End Users;
THEREFORE, in consideration of the terms and conditions set forth
below, the parties agree as follows:
1. DEFINITIONS
1.1 Binary Code means machine readable object and executable code.
1.2 Confidential information means any information, including but
not limited to all code, inventions, algorithms, know-how and ideas and all
other businesses, technical and financial information a party obtains from the
other party that is marked as "Confidential" or "Secret". The material financial
terms of this Agreement will be considered the Confidential Information of each
party. All information disclosed orally between developers or otherwise will be
Confidential information only if it is identified as such at the time of
disclosure and is confirmed to be Confidential Information in writing no more
than twenty (20) days later.
1.3 Software means, at any time, the then current Release of
CrossZ's Binary Code and Documentation for the CrossZ software products in
Exhibit A, and including all Maintenance Updates and future Releases provided to
Xxxxxx by CrossZ.
1.4 Demo means a copy of Software which may be run by Xxxxxx or
Distributors solely for the purpose of internal testing or evaluating Software
capabilities including demonstrations at trade shows.
1.5 Derivative of a work means a derivative work of that work as
such term is used in the United States Copyright Act of 1976, as amended, as
well as modified versions or releases that are not sufficiently different from
the work to constitute a separate derivative work under such Act.
1.6 Distributor means an entity authorized by Xxxxxx and approved
in writing by CrossZ to sublicense Software to End Users. CrossZ will not
unreasonably withhold such approval.
1.7 Documentation means all End User, marketing, training and
maintenance documentation relating to Software.
1.8 Effective Date means the effective date of this Agreement
referred to above.
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1.9 End User means an entity that enters into a sublicense with
Xxxxxx or a Distributor for that entity's internal use of Software.
1.10 Maintenance and Support Services means services provided by
CrossZ to Xxxxxx pursuant to this Agreement.
1.11 Maintenance Update means a new release of Software that fixes
flaws or bugs in previous versions of Software, but does not contain new
functionality and is generally released by CrossZ to End Users or other
resellers. CrossZ designates Maintenance Updates by changing the letter to the
right of the tenths digit (e.g. Version 3. 1a to 3.1 b).
1.12 Release (Major or Minor Release) means a release of Software
created by or for CrossZ that contains new software functionality and is
generally released by CrossZ to End Users or other resellers. CrossZ designates
Major Releases by changing the numeral to the left of the decimal point (e.g.
Release 3.0 to 4.0) and Minor Releases by changing the numeral to the immediate
right of the decimal point (e.g. Release 3.1 to 3.2.).
1.13 Royalty has the meaning ascribed to it in Attachment 1.
1.14 Source Code means the human readable code including related
documentation that must be converted into machine executable language by the use
of compilers, assemblers or interpreters.
1.15 Specifications means the Functional Specifications and
Performance Specifications of Software described in Exhibit A to this Agreement
respectively and any other specifications or performance characteristics
described in any Documentation.
1.16 Trial means a copy of Software which may be run by a potential
End User for a preset limited time (not to exceed ninety (90) days unless
otherwise agreed in writing by CrossZ) solely for the purpose of determining if
such End User will license Software beyond the Trial period.
1.17 Subsidiary of a party means a corporation or other entity of
which more than fifty percent (50%) of the outstanding stock or other equity
interests entitled to vote for the election of directors or equivalent governing
body is now or hereinafter controlled, directly or indirectly, by that party,
but such corporation or other entity shall be deemed to be a Subsidiary only so
long as such ownership exists.
2. LICENSE RIGHTS
CrossZ grants to Xxxxxx the following worldwide, non-exclusive,
non-transferable license for Software to:
2.1 Use Software for internal use, subject to the restrictions in
Exhibit B, and reproduce it as required for such use.
2.2 Use, reproduce, and sublicense (i) Demos to Distributors; and
(ii) Trials to End Users.
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2.3 Manufacture, distribute and sublicense Software to End Users
for their internal use only and to Distributors for sublicensing to End Users
for their internal use only. Maintenance documentation shall not be distributed
to End Users.
2.4 CrossZ grants to Xxxxxx a worldwide, non-exclusive license
under all of its intellectual property rights relative to Software and, with
respect to any patents, to combine Software with Xxxxxx hardware, software and
third party hardware and software; in each case only to the extent necessary for
Xxxxxx, Distributors, and End Users to exercise the rights and licenses granted
under Sections 2. 1-2.3 of this Agreement.
2.5 Xxxxxx Subsidiaries may use and sublicense Software under this
Agreement provided that such Subsidiaries agree to comply with the terms and
conditions of this Agreement to the same extent as Xxxxxx including abiding by
the same restrictions on sublicensing Software. The parties intend that all
transactions and dealings relating to this Agreement will be directly between
CrossZ and Xxxxxx in the United States. A breach of this Agreement or any
obligation hereunder by Xxxxxx or any of its Subsidiaries shall be deemed a
breach by Xxxxxx. The parties agree that claims for any such breach will be
pursued against Xxxxxx and not a Subsidiary unless under applicable law the
claim must be brought directly against the Subsidiary. Any such claim against a
Subsidiary shall not preclude a claim against Xxxxxx.
2.6 Except as set forth in Section 2.7, no rights with respect to
any Source Code are granted. Xxxxxx agrees, and shall require its End Users and
Distributors to agree (subject to local law), not to reverse engineer,
decompile, or attempt to derive source code from the Software. No rights are
granted except for the rights expressly granted under this Agreement, and all
other rights are expressly retained by CrossZ. Any activities by Xxxxxx with
respect to Software outside the scope of the licenses granted in this Agreement
shall be a material breach of this Agreement, and nothing in this Agreement
shall restrict CrossZ's right to bring an action for infringement.
2.7 Within sixty (60) days after signing of this Agreement, CrossZ
will execute a third party Source Code subscription escrow agreement ("Escrow
Agreement") substantially in the form attached as Exhibit C, to which Xxxxxx
will be a beneficiary, for deposit of Escrow Materials which will be subject to
verification at CrossZ's offices in Alameda, California by the escrow company
under CrossZ supervision. Verification shall not include examination of the
Source Code but shall be limited to compilation to demonstrate that the Source
Code corresponds to the Binary Code licensed to Xxxxxx. The Escrow Materials
shall consist of Software Source Code (with all existing comments) and existing
programmer documentation which a skilled programmer would customarily require to
understand and modify the Source Code. CrossZ will update the Escrow Materials
quarterly as necessary. All expenses and fees related to the establishment,
registration and continued subscription of such agreement will be paid by
Xxxxxx, including without limitation all fees payable by CrossZ pursuant to
Section 6 of the Escrow Agreement.
2.7.1 Escrow Materials will be released from escrow to
Xxxxxx in the event (i) that CrossZ ceases to do business, or (ii) that CrossZ
discontinues support of the Software, or (iii) of a material breach by CrossZ of
support obligations hereunder which results in a termination by Xxxxxx under
13.2.1, and, in any event, that no assignee is appointed by CrossZ to assume the
obligations and responsibilities of supporting the Software under this
Agreement.
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2.7.2 The Escrow Agreement shall contain provisions giving
CrossZ the right to dispute whether the release conditions have been met. In
case of such dispute the parties will submit the matter to binding arbitration
with JAMS pursuant to Section 2.7.6. The sole question to be determined by the
arbitrators shall be whether or not a release condition existed at the time
Xxxxxx made a demand for release of the Escrow Materials, and if so, whether the
default causing such condition has been cured. If the arbitrators find that an
uncured release condition exists, the escrow agent shall promptly deliver the
Escrow Materials to Xxxxxx.
2.7.3 Upon release of Escrow Materials to Xxxxxx, Xxxxxx
shall have the right to use the Escrow Materials only for the purpose of
supporting the Software. In the event of Escrow Materials release, the
obligation to remit any maintenance and support payments will be reduced by the
then current maintenance portion of such payments.
2.7.4 In the event of Escrow Materials release, CrossZ
shall refund to Xxxxxx the unused portion of any Level 2 and 3 maintenance and
support fees prepaid by CrossZ by Xxxxxx.
2.7.5 Upon release of Escrow Materials to Xxxxxx, the
license to use such Escrow Materials will be subject to the following
conditions:
(i) Xxxxxx will keep copies of the Escrow
Materials only at a secure location in the United States to be specified by
Xxxxxx at the time of release of such Escrow Materials;
(ii) Xxxxxx may change the secure location,
within the United States, upon thirty (30) days, prior written notice to CrossZ;
(iii) Xxxxxx may make only as many copies of the
Escrow Materials for any Software as are reasonably necessary to exercise
Xxxxxx'x rights hereunder, but in no event more than three (3). Xxxxxx agrees to
use diligent efforts to prevent release or disclosure of all or any part of the
Escrow Materials to anyone other than Xxxxxx employees who have a need for
access to the Escrow Materials to perform their duties as permitted by this
Agreement.
(iv) Xxxxxx will grant access to the Escrow
Materials only to a reasonably limited number of its employees who have a need
for access to perform their duties as permitted by this Agreement. Xxxxxx may
not disclose any escrow Materials to any third party.
(v) Xxxxxx agrees to include in all copies of
any part of any Escrow Materials made by Xxxxxx the proprietary rights notices
contained in the original copy of Escrow Materials. This obligation applies to
partial, merged and modified copies.
(vi) Without limiting the foregoing, the Escrow
Materials shall be CrossZ Confidential Information and, without limitation,
Xxxxxx shall treat the Escrow Materials with at least the same care, to prevent
disclosure or misuse, as Xxxxxx uses for its own most confidential software
Source Code.
2.7.6 Issues or claims by either party which are submitted
to JAMS pursuant to Section 2.7.2 for arbitration shall proceed as follows:
Arbitration shall commence within fifteen (15) days of receipt of such notice
and shall be conducted by three (3) independent
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arbitrators with at least five (5) years of experience in the computer
software/hardware field in accordance with the standard arbitration procedures
established by JAMS, unless otherwise agreed by the parties. Each party shall
select an independent arbitrator within five (5) days of submission to JAMS and
the two arbitrators selected by the parties shall select the third independent
arbitrator within five (5) days of selection of the parties' arbitrators. If any
arbitrator is not selected during the time periods designated herein, then JAMS
shall select such arbitrators. The parties agree that the arbitrators' decision
shall be binding. Each party shall pay its own legal fees and the non-prevailing
party shall pay the arbitration fees.
2.7.7 Upon release of the Escrow Materials to Xxxxxx, (i)
CrossZ's Software support and maintenance obligations shall terminate, and (ii)
CrossZ shall refund to Xxxxxx, on a pro rata, customer by customer basis the
then unused portion of any maintenance fees paid to CrossZ by Xxxxxx (e.g., if
the Escrow Materials were released to Xxxxxx on July 1 and an Xxxxxx customer
had commenced a one year support and maintenance agreement with Xxxxxx January
1, then CrossZ would refund to Xxxxxx fifty percent (50%) of the maintenance fee
Xxxxxx paid to CrossZ for that customer for that year).
3. END USER LICENSE
3.1 Xxxxxx will license the Binary Code of Software to End Users
and require its Distributors to license Binary Code of Software to End Users
pursuant to, at its option, (a) a written agreement signed by the End User that
contains terms no less restrictive than the terms specified in Exhibit B, or (b)
a written agreement on or accompanying the Software media that is fully visible
to the End User before the media package is opened, that specifies that the End
User is accepting the license by opening the package and that has terms no less
restrictive than the terms specified in Exhibit B, provided that the alternative
specified in this clause (b) may be utilized only if a similar license is used
by Xxxxxx in licensing its own similar software products in the jurisdiction
where Software is to be so licensed. Xxxxxx will enforce the End User agreements
in order to protect CrossZ's rights, or shall take all actions reasonably
necessary or useful to enable CrossZ to do so.
3.2 Xxxxxx will license the Binary Code of Software to its
Distributors under terms and conditions no less protective of CrossZ's rights
than the terms and conditions of this Agreement.
4. GENERAL RESPONSIBILITIES OF CROSSZ
4.1 CrossZ will designate an official liaison to interface with
Xxxxxx for matters relating to this Agreement.
4.2 CrossZ agrees to have its senior management meet with Xxxxxx'x
management then responsible for the Software product at least quarterly to
review and address business and technical issues relating to Software and to
discuss, at a minimum, CrossZ development plans relating to Software. CrossZ
agrees to provide to Xxxxxx at least the same development plan information
relating to Software as it provides to its direct and indirect sales channels.
4.3 CrossZ will provide Xxxxxx with a master tape (or other
appropriate medium) of Software and Software Documentation in electronic format
within ten (10) business days of the execution of this Agreement.
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4.4 During the term of this Agreement, CrossZ will, at no charge
to Xxxxxx, provide reasonable assistance to Xxxxxx in installing the first two
(2) installations of the Software for each platform on which the Software
operates (e.g., two (2) MVS installations, two (2) UNIX installations).
5. GENERAL RESPONSIBILITIES OF XXXXXX
5.1 Xxxxxx will designate an official liaison to interface with
CrossZ for matters relating to this Agreement.
5.2 Xxxxxx'x management then responsible for the software product
will meet with CrossZ at least quarterly to review and address business and
technical issues.
5.3 Xxxxxx will manufacture by making copies from the master tape
of Software delivered by CrossZ to Xxxxxx and will produce documentation by
making copies form the electronic copy of the Documentation provided to Xxxxxx
by CrossZ.
5.4 Xxxxxx will maintain documents and records sufficient to
determine that it has been paid the appropriate Royalties for two (2) years
following each quarter.
5.5 The parties agree to jointly create an Xxxxxx Software "sales
kit," including literature and promotional materials, training materials, and
demonstration software. In addition, Xxxxxx agrees to create its own collateral
materials to promote the Software as part of Xxxxxx'x normal product set,
consistent with such materials for other Xxxxxx products.
5.6 Xxxxxx will at all times maintain competent technical and
sales personnel with respect to the Software, to enable Xxxxxx to represent the
Software competently and accurately and to provide competent installation,
implementation, and support. Xxxxxx will procure training from CrossZ as
necessary to accomplish this.
6. DISPUTES
6.1 If a dispute arises between the parties under this Agreement
each party agrees that before resorting to judicial process the parties will
attempt to resolve it. The resolution of any such dispute will first be mutually
attempted by each party's designated liaison. If the dispute cannot be resolved
by the liaisons within three (3) business days of one party informing the other
party in writing of the issue in dispute, then the Xxxxxx liaison will promptly
refer the dispute to the senior management of the Xxxxxx organization which has
responsibility for the Software product and the CrossZ liaison will promptly
refer the dispute to its Senior Vice President who has responsibility for
Software and the CrossZ senior management will refer the dispute to CrossZ's
CEO. If these persons cannot resolve the dispute within ten (10) business days
then either party will have the right to proceed to resolve the suit by judicial
process. Notwithstanding the foregoing, each party shall be entitled, without
delay, to seek and obtain intern, temporary, or preliminary injunctive or other
equitable relief to protect its rights.
6.2 In any legal action arising out of or related to this
Agreement, between the parties hereto, the unsuccessful party will pay all
costs, including legal fees, of the prevailing party.
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7. MARKETING SUPPORT
7.1 CrossZ will provide to Xxxxxx available Software marketing
collateral and presentation material in electronic form at no cost. Such
materials will be delivered within ten (10) business days after the execution of
this Agreement.
7.2 Xxxxxx shall use CrossZ's logos, trademarks and product names,
with reasonable prominence, on each Software package. Xxxxxx will have the right
to use its own logos, trademarks or product names in addition to CrossZ's logos,
trademarks or product names on the software packaging, media labels and
marketing collaterals in connection with its marketing and licensing of
Software. If Xxxxxx adds its logos trademarks and product names to the software
packaging, media labels or marketing collaterals, Xxxxxx shall have the right to
make reasonable modifications (based on both parties interests) to the logos,
trademarks and representation of the Software product name. Any use of CrossZ's
logos, trademarks or product names pursuant to this section shall be subject to
the prior written approval of CrossZ as to form.
7.3 CrossZ will provide Xxxxxx the logo image, trademarks and
representation of the Software product name for Xxxxxx'x use pursuant to Section
7.2 of this Agreement.
7.4 Except as authorized in this Section 7, Xxxxxx shall have no
rights with respect to any CrossZ trademark or other product, service, or
company identifier ("CrossZ Trademarks").
7.5 Any and all good will arising from Xxxxxx'x use of the CrossZ
Trademarks shall inure solely to the benefit of CrossZ, and neither during nor
after the termination of this Agreement and the license granted hereunder shall
Xxxxxx assert any claim to the CrossZ Trademarks (or any confusingly similar
xxxx) or such good will. Xxxxxx shall use reasonable judgment and good faith to
prevent any action by Xxxxxx or its Distributors that could be detrimental to
the good will associated with the CrossZ Trademarks or with CrossZ. Xxxxxx
shall, during the term of this Agreement and after termination hereof, execute
such documents as CrossZ may request from time to time to ensure that all right,
title and interest in and to the CrossZ Trademarks reside with CrossZ. Without
limiting the foregoing, Xxxxxx shall not register any CrossZ Trademark, or any
xxxx confusingly similar to any CrossZ Trademark, in any country or territory.
7.6 Xxxxxx will notice CrossZ's copyright on software packaging,
media labels, marketing collateral and display screens generated by Software in
connection with its marketing of Software to the same extent that CrossZ notices
its copyright notice on its software packaging, media labels, marketing
collateral and display screens generated by Software.
7.7 Within ten (10) business days after the execution of this
Agreement and each release of a subsequent Release, CrossZ will provide to
Xxxxxx at no cost the following training:
7.7.1 One day of sales training for up to 15 Amdahl
personnel, at Xxxxxx'x training facilities in Sunnyvale, California or
at an agreed upon CrossZ location;
7.7.2 training of an Xxxxxx employees to enable such
employee to train other Xxxxxx employees.
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7.8 CrossZ will make its standard education course offering for
Software available to Xxxxxx, Distributors and End Users at a price at least as
low as the price CrossZ charges to any other such customer.
8. MAINTENANCE AND SUPPORT SERVICES
8.1 CrossZ shall provide second and third level software
Maintenance and Support Services to Xxxxxx for the Software currently marketed
by CrossZ and Release 1.5 and subsequent Release. These services will be
provided to Xxxxxx pursuant to the provisions of Attachment 2, provided that
problems can be recreated and the maintenance and support services are
implemented on Software operating on a standalone basis, i.e., not bundled.
Xxxxxx has responsibility for first level support.
8.2 Xxxxxx shall sell Software support and maintenance for at
least one year after installation for each copy of any MVS version of Software.
Xxxxxx shall provide to CrossZ prompt written notice of installation of each
copy of any MVS version of the Software.
9. PAYMENT, REPORTING AND TAXES
9.1 Xxxxxx will pay to CrossZ the per-copy Royalty and maintenance
prices as calculated pursuant to Attachment 1 for every copy of Software
distributed or sublicensed to Distributors or End Users, except for Software
distributed for Demo or Trial purposes. Xxxxxx shall pay Royalties arising out
of distribution of Software by its Subsidiaries. Internal use of the Software by
Xxxxxx and its Subsidiaries shall be royalty free. Xxxxxx will submit a Royalty
report with sufficient information for CrossZ to calculate the Royalties which
are due for each calendar quarter and pay such Royalties within thirty (30) days
after the end of each calendar quarter (ending March 31, June 30, September 30,
and December 31). Upon execution of this Agreement, Xxxxxx shall pay to CrossZ a
prepaid, nonrefundable (except as specifically set forth in Section 14.3)
Royalty of four hundred three thousand dollars ($403,000). At Xxxxxx'x option,
Xxxxxx may credit any such Royalties and maintenance fees (limited to Royalties
and maintenance fees accruing during the initial twenty-four (24) month term of
this Agreement only and not during any renewal term) against any prepaid
Royalties it has already paid to CrossZ.
9.2 All payments are to be made by telegraphic transfer to
CrossZ's bank account and are to be in U.S. Dollars. Royalties based on Sales in
other currencies shall be converted to United States dollars according to the
official rate of exchange for that currency, as published in the Wall Street
Journal (Western Edition) on the last day of the calendar month in which the
Royalty accrued (or, if not published on that day, the last publication day for
the Wall Street Journal (Western Edition) during that month). Late payments
shall bear interest at the lesser of one and one-half percent (1.5%) per month
or the maximum allowed by applicable law.
9.3 Xxxxxx will upon written request, but no more frequently than
annually (unless the preceding audit revealed a discrepancy), provide CrossZ
access to pertinent records (including without limitation records of
Subsidiaries) with respect to Royalties due to CrossZ under this Agreement.
Access will be provided during normal business hours, at a mutually acceptable
time, to an independent accounting organization, chosen and compensated by
CrossZ and reasonably acceptable to Xxxxxx. The accounting organization will
report to CrossZ only the number of licenses issued and per copy sublicense fees
paid or due and will keep confidential any other information it may discover in
the course of the audit. CrossZ will pay all costs and
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expenses in connection with such audit. If the audit reveals that Xxxxxx has
underpaid Royalties by an amount which is greater than $200,000, then Xxxxxx
will reimburse CrossZ for the expense of the audit.
9.4 Royalties will be paid in full without offset or deduction by
Xxxxxx relating to any withholding or action, state or local sales, use, value
added or other taxes, customs duties, or similar tariffs and fees which Xxxxxx
may be required to pay or collect upon the delivery of Software or upon
collection of sublicense fees or otherwise. Except for taxes based on CrossZ's
income, net worth or similar taxes, Xxxxxx agrees to pay such tax or levy.
Xxxxxx agrees to provide CrossZ with appropriate resale certificate numbers and
other documentation satisfactory to the applicable taxing authorities to
substantiate any claim or exemption from any such taxes or fees.
9.5 In addition, if either party sells Software-related services
(other than customary Software support and/or maintenance) to any End User and
the parties agree that such party (the "Contracting Party") will subcontract
performance of those services to the other party (the "Performing Party"), then
the Contracting Party shall pay to the Performing Party seventy-five percent
(75%) of all amounts charged by the Contracting Party for the services performed
or to be performed by the Performing Party. Payments shall be made quarterly
within thirty (30) days after each calendar quarter in which any payment of
amounts charged for such services accrues, in accordance with the procedures
specified in Sections 9.2 - 9.4 for royalties.
10. WARRANTY
10.1 While CrossZ does not warrant that the operation of Software
will be error-free or uninterrupted, until ninety (90) days after its initial
delivery to Xxxxxx, CrossZ does warrant that Software will perform in
substantial conformance to the Documentation (excluding documentation relating
to training) and Specifications and that the media, as delivered by CrossZ
containing Software will be free of defects during the warranty period. CrossZ's
sole obligation under this warranty will be to use diligent efforts to correct
non-conformities in Software and to repair or replace any such defective media.
10.2 CrossZ makes no warranty that Software will work in
combination with any hardware or applications provided by third parties except
as provided in the Documentation.
10.3 CrossZ warrants that Software contains no encryption code or
cryptographic capability which for the purpose of export would require a license
under the ARMS Export Control Act and the International Traffic in Arms
Regulations.
10.4 CrossZ represents and warrants that (a) it is the owner of all
rights, title and interest in Software necessary to permit Xxxxxx to exercise
all of Xxxxxx'x rights under this Agreement, (b) it has not assigned,
transferred, licensed, pledged or otherwise encumbered Software or any
underlying technology or intellectual property rights with respect to Software
in any manner that conflicts with Xxxxxx'x rights under this Agreement, (c)
entering into this Agreement and exercising its rights under this Agreement will
not violate any right of, breach, or result in any obligation by CrossZ or
Xxxxxx to any third party under any agreement or arrangement between CrossZ and
such third party, (d) to the best of its knowledge, no claim, whether or not
embodied in an action past or present, or infringement of any copyright, patent,
trade secret or trademark has been made or is pending against it or to its
knowledge any entity
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from which it has obtained such rights relative to Software (e) to the best of
its knowledge, Software provided by CrossZ to Xxxxxx does not infringe any third
party intellectual property rights, (f) no licenses, permissions or releases of
third party rights are necessary for it to perform under this Agreement, and (g)
it has and will have written agreements with its employees and contractors
sufficient for the development of Software or the license of Software to Xxxxxx
as provided under this Agreement.
10.5 THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW,
STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE.
11. CONFIDENTIAL INFORMATION
11.1 Each party agrees that Confidential Information disclosed by a
party will be considered the Confidential Information of that party. Except as
expressly and unambiguously allowed herein, the receiving party will hold the
disclosing party's Confidential Information in confidence and not disclose it to
third parties except for the purposes of this Agreement and under a written
agreement no less restrictive than the terms of this Section, and will treat the
disclosing party's Confidential Information with at least the same degree of
care taken to protect its own similar Confidential Information but in no event
with less than reasonable care. Each party receiving Confidential Information
further agrees to limit disclosure of such information to those of its employees
and contractors who have a need for such information to effect the use permitted
under this Agreement and who are bound under a written agreement to keep such
information confidential. For purposes of this Agreement each party's standard
employee agreement conferring Confidential Information issues will satisfy this
requirement with respect to its employees.
11.2 Notwithstanding the foregoing, the receiving party will not be
required to protect or hold in confidence any information which:
11.2.1 becomes publicly known through no wrongful act or
omission of the receiving party; or
11.2.2 becomes known or was previously known to the
receiving party, without confidential restriction, from a third party unless the
receiving party had or should have had knowledge of this confidentiality; or
11.2.3 is approved by the disclosing party for disclosure
without restriction in a written document which is signed by a duly
authorized officer of the disclosing party; or
11.2.4 is independently developed by the receiving party
without use of the other party's Confidential Information.
11.3 Disclosure of Confidential information will not be precluded
by Section 11.2 if such disclosure is:
11.3.1 necessary to establish rights under this Agreement
(subject however to the receiving party's obligation at its expense to make a
good faith attempt to obtain a protective order prior to such disclosure);
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11.3.2 required by law or regulation or in response to a
valid order of a court or other governmental body of a country or political
subdivision thereof, provided that the receiving party gives prompt written
notice to the disclosing party to enable the disclosing party to seek a
protective order or prevent the disclosure.
11.4 If such Confidential Information is relevant to the material
financial terms and conditions of this Agreement then in addition to the
exceptions of Section 11.3 disclosure of Confidential Information will not be
precluded by Section 11.2 if such disclosure is:
11.4.1 to legal counsel of the parties, accountants, and
other professional advisors;
11.4.2 in confidence, to banks, investors and other
financing sources and their advisors;
11.4.3 in connection with the enforcement of this Agreement
or rights under this Agreement; or
11.4.4 in confidence, in connection with an actual or
prospective merger or acquisition or similar transaction.
11.5 All Confidential Information together with all copies thereof
which have been made by the receiving party will remain the property of the
disclosing party.
12. EXPORT WRITTEN ASSURANCE
CrossZ will provide all information under its control reasonably
requested by Xxxxxx, including all information with respect to encryption code
or cryptographic capabilities of Software, to assist Xxxxxx to obtain any export
or import licenses for Software. Xxxxxx agrees to comply with all U.S. Export
control laws, including the U.S. Export Administration Act and its associated
regulations.
13. TERM AND TERMINATION
13.1 This Agreement will become effective on the Effective Date.
Unless earlier terminated in accordance with this Section 13, this Agreement
will remain in full force and effect for a period of twenty-four (24) months.
Thereafter, this Agreement will be automatically extended (without additional
prepaid royalty obligation) for renewal terms of twelve (12) months each,
provided, however that either party may terminate it as of the end of its then
current term by giving written notice of termination at least ninety (90) days
prior to the end of the then current term. In addition, at any time after the
initial twenty-four (24) month term of this Agreement, either party shall be
entitled to terminate this Agreement, for its convenience for any reason or for
no reason, on at least six (6) months written notice to the other party. This
Agreement will be considered an agreement for a fixed terms regardless of the
number of renewals that may take place.
13.2 This Agreement may be terminated by a party upon the
occurrences of any of the following events:
-11-
13.2.1 If the other party materially breaches any material
provision of this Agreement, or if CrossZ material breaches the
maintenance and support service agreement entered into by Xxxxxx and
CrossZ for Maintenance and Support Services, and, in any such case, the
breaching party fails to substantially cure such breach within thirty
(30) days of written notice by the non-breaching party describing the
breach. In addition, CrossZ shall be entitled to terminate this
Agreement, and Xxxxxx'x right to market and distribute the Software,
pursuant to this Section in any particular country or countries if
Xxxxxx is not complying with its obligations pursuant to Section 5.6
with respect to that country or countries and does not cure such
failure within thirty (30) days after notice from CrossZ.
13.2.2 If the other party ceases to do business, or
otherwise terminates its business operations, or if there is a change
in control of the other party (except for a change in the control of
Xxxxxx involving Fujitsu, Ltd. or another company controlled by
Fujitsu, Ltd.).
13.2.3 If the other party seeks protection under any
bankruptcy, receivership, trust deed, creditors arrangement,
composition or comparable proceeding, or if any such proceeding is
instituted against the other party (and not dismissed within one
hundred and twenty (120) days);
13.3 Upon termination or expiration of this Agreement the following
will occur:
13.3.1 Xxxxxx'x obligations to pay Royalties under Section
9 will continue provided, however, that if Xxxxxx terminates pursuant
to Section 13.2.1 Xxxxxx may offset any such Royalties against any
damages it may have sustained as a result of CrossZ's breach of this
Agreement or the maintenance and support services agreement.
13.3.2 All rights and licenses of Xxxxxx will terminate,
except that then existing licenses to End Users for Software will
remain in effect.
13 3.3 Each party will immediately cease using any logos,
trademarks, service marks, product names and other designations of the
other except to the extent required in connection with the existing
licenses to End Users.
13.3.4 Each party will return to the other its Confidential
Information unless it was expressly provided for use in sales
promotions or as part of a sale.
13.3.5 In addition to those Sections referred to in
13.3.1-5 (which survive termination of this Agreement only to the
extent provided therein), the following Sections of this Agreement will
survive a termination of this Agreement for any reason: Payment,
Reporting and Taxes; Warranty; Confidential Information; Expert Written
Assurance; Intellectual Property Indemnification; Limitation of
Liability; Severability; Compliance With Laws and Regulations;
Governing Law; Cumulative Remedies; and Entire Agreement. Section 8
(Maintenance and Support Services), together with Xxxxxx'x obligation
to make support and maintenance payments as set forth in Attachment 1,
shall survive any termination except for termination by CrossZ for
Xxxxxx'x failure to pay support and maintenance payments.
-12-
14. INTELLECTUAL PROPERTY INDEMNIFICATION
14.1 CrossZ hereby agrees to defend or settle at its expense any
claim against Xxxxxx, Distributors or End Users that Software infringes a
worldwide copyright or trade secret, or a patent or trademark in the United
States, the European Union, Japan, Canada, Australia, or any other country where
CrossZ does business. CrossZ will indemnify and hold harmless Xxxxxx,
Distributors or End Users against and from costs and attorney's fees awarded as
a result of any such claim and any judgment or arbitration award finally awarded
or the amount of the settlement thereof, provided that CrossZ is promptly
notified of the claim in writing, is given full control of the defense and
settlement thereof, and, at its request and expense (except the value of
employee time) is given reasonable assistance by Xxxxxx or Distributor or End
User, as the case may be. In the event of such a claim, CrossZ may procure for
Xxxxxx, Distributors or End User the right to continue to market, use and
license Software as provided under this Agreement, or to replace or modify it to
make it non-infringing but substantially equivalent in functionality and
performance. Notwithstanding the foregoing, CrossZ will have no obligation under
this Section 14.1 with respect to the circumstances specified in Section 14.2.
14.2 Xxxxxx hereby agrees to defend or settle at its expense any
claim against CrossZ that (i) the modification of Software other than by CrossZ,
or (ii) the combination of Software with other software, hardware or services,
infringes (which infringement would not have occurred but for such modification
or combination) a worldwide copyright or trade secret, or a patent or trademark
in the Untied States, the European Union, Japan, Canada, Australia. Xxxxxx will
indemnify and hold CrossZ harmless against and from costs and attorney's fees
awarded as a result of any such claim, and any judgment and arbitration award
finally awarded or the amount of the settlement thereof, provided that Xxxxxx is
promptly notified of the claim in writing, is given full control of the defense
and settlement thereof, and, at its request and expense (except the value of
employee time) is given reasonable assistance by CrossZ.
14.3 In the event the use of Software is enjoined as a result of a
claim of infringement described in Section 14.1, CrossZ shall use reasonable
commercial efforts to in any order, procure on reasonable terms for Xxxxxx,
Distributors, and End Users the right to continue using Software, or to replace
or modify it so that it is outside the scope of the injunction but is
substantially equivalent in functionality and performance. In addition to other
remedies available to Xxxxxx, if neither of those actions is reasonably feasible
despite CrossZ's reasonable commercial efforts, CrossZ will pay to Xxxxxx any
amount Xxxxxx refunds to Distributors or End Users as a result of the
injunction, up to the amount received by CrossZ with respect thereto.
14.4 Notwithstanding any other provision of this Agreement, the
foregoing states CrossZ's sole liability and obligation, and Xxxxxx'x (and
Distributors' and End Users') exclusive remedy, arising out of any actual or
alleged intellectual property infringement.
15. LIMITATION OF LIABILITY
15.1 In no event will either party be liable under this Agreement
or under contract, negligence, strict liability or other equitable theory for
any costs of substitute products or services, or for any indirect, special or
consequential damages or lost business or profits, even if the party has been
advised of the possibility of such damages.
-13-
15.2 Subject to Section 15.1 above, each party's total aggregate
liability to the other for all claims under this Agreement or under contract,
negligence, strict liability or other equitable theory will be limited to the
amount already paid and due to be paid to CrossZ by Xxxxxx as Royalties except
that Xxxxxx'x liability pursuant to the preceding clause shall be in addition to
Xxxxxx'x obligation to pay all amounts due to be paid to CrossZ.
15.3 The limitations of liability set forth in Sections 15.1 and
15.2 above will not apply to claims of personal injury, death, or tangible
property damage, to liability for infringement of the other party's intellectual
property rights, or to CrossZ's or Xxxxxx'x obligations and liabilities pursuant
to Section 14, PROVIDED that each party's liability to the other party for
infringement of the other party's intellectual property rights shall not exceed
the greater of two million dollars ($2,000,000) or the total amounts paid or
payable by Xxxxxx to CrossZ pursuant to this Agreement, PROVIDED FURTHER that if
the infringement was authorized by management personnel at the director level or
higher (e.g., director, vice president, president, etc. ), then this maximum
liability shall be the greater of ten million dollars ($10,000,000) or the total
amounts paid or payable by Xxxxxx to CrossZ pursuant to this Agreement. In the
event of any such infringement, the infringing party shall, at its expense, (i)
provide prompt and full written notice to the other party describing the
infringing activities, (ii) immediately cease the infringing activity, and (iii)
use its diligent and reasonable best efforts to eliminate or minimize the
effects of the infringing activities.
16. PRESS RELEASES
Either party may issue a press release describing Xxxxxx'x intent as a
distributor of Software. Each party will have the right of prior approval of any
press release proposed by the other party which approval will not be
unreasonably withheld. If such written approval or nonapproval is not received
within five (5) business days of the date a written request for approval is
received by the other party's liaison, the request for the press release will be
considered approved. In any case, CrossZ will not issue any press releases in
connection with Xxxxxx'x Software offering until after Xxxxxx announces its
product offering related to Software.
17. ASSIGNMENT
Neither party will, without the prior written consent of the other,
sell, transfer, assign or subcontract in whole or in part any right or
obligation hereunder, except to an entity (but not a competitor of the other
party) who acquires all or substantially all of the relevant assets or business
of the party, whether by sale, merger or acquisition. Any attempted assignment
in violation of this section shall be void.
18. FORCE MAJEURE
Notwithstanding anything else in this Agreement, except for the
obligation to pay money, no default, delay or failure to perform on the part of
either party will be chargeable hereunder if such default, delay or failure to
perform is due to causes beyond that party's reasonable control. In such event,
any dates or times by which the party is otherwise scheduled to perform will be
extended automatically for a period of time equal in duration to the time that
the cause for such default, delay or failure to perform is in effect.
-14-
19. SEVERABILITY
If any provision of this Agreement is held to be illegal or
unenforceable, that provision will be limited or eliminated to the extent
necessary so that this Agreement will otherwise remain in full force and effect
and be enforceable.
20. WAIVER AND AMENDMENT
This Agreement shall not be modified except by a written agreement
dated subsequent to the date of this Agreement and signed by a Vice President or
a more senior officer of each of the parties. No waiver of any breach of, or
failure to exercise any right under, any provision of this Agreement will
constitute a waiver of any prior, concurrent or subsequent breach of or right
under the same or any other provision hereof, and no waiver shall be effective
unless made in writing and signed by a Vice President of the waiving party. This
Agreement will take precedence over additional or different terms of any
purchase order, confirmation, invoice or similar document (all of which terms
shall be void), even if accepted in writing by both parties, and waivers and
amendments will be effective only if made by non pre-printed agreements
constituting an amendment or waiver.
21. COMPLIANCE WITH LAWS AND REGULATIONS
Each party hereto will at its own expense comply with all laws, rules
and regulations of competent public authorities relating to its duties,
obligations and performance under this Agreement and will procure all licenses
and pay all fees and other charges required thereby.
22. NOTICES
22.1 All notices, demands and other communications under this
Agreement will be made in English and will be deemed to have been given when two
(2) working days have passed after transmission by facsimile or delivery by hand
or by overnight courier, or when five (5) working days have passed after the
transmission by certified airmail, return receipt requested. If notice is made
by facsimile, a confirming copy of the same will also be sent by mail to the
same address.
22.2 Such notices, requests, demands and other communications will
be sent to the following addresses, unless the party changing its address
notifies the other party of the change by fifteen (15) days prior written
notice.
For Xxxxxx:
Xxxxxx Corporation M/S
0000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
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Copy to: Xxxxxx Law Department
Xxxxxx Corporation M/S
0000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
For CrossZ: President or Chief Executive Officer
CrossZ International, Inc.
00 Xxxxxxx Xxxxxxxx Xxxx.
Xxxxxxxxx, Xxx Xxxx 00000
23. RELATIONSHIP OF PARTIES
23.1 Xxxxxx will at all times during the term of this Agreement act
as, and will contract on its own behalf and in its own name as principal. Xxxxxx
will not, without CrossZ's express prior written permission, except as expressly
provided for in this Agreement, obligate CrossZ in any manner, including without
limitation, making any representations or offering any guarantees on behalf of
CrossZ or about Software. In all dealings in connection with this Agreement,
Xxxxxx will not represent CrossZ as being in a relationship with Xxxxxx other
than as an authorized distributor of CrossZ Software.
23.2 Nothing in this Agreement will be construed as creating a
relationship between the parties of partnership, joint-venturers, or as
conferring on Xxxxxx the right to assume obligations or responsibilities on
behalf of CrossZ.
24. NON-SOLICITATION
Xxxxxx and CrossZ agree during the term of this Agreement not to
solicit, directly or indirectly, employees of the other party for employment, or
as consultants or contractors, unless otherwise agreed to in writing by the
party whose employee is proposed to be solicited by the other party. Nothing in
this provision is intended to limit the ability of either Xxxxxx or CrossZ to
hire employees of the other as employees, consultants or contractors where such
hiring opportunity was publicly advertised or was part of a job fair to which
the public was invited.
25. GOVERNING LAW
The validity, construction and performance of this Agreement will be
governed by the laws of the State of California and the United States without
regard to the conflict of law provisions thereof, and without regard to the
United Nations Convention on Contracts for the International Sale of Goods.
26. HEADINGS
The title of this Agreement and the headings of Sections contained herein are
for convenience and reference only and will have no effect upon the
interpretation or construction of the provisions of this Agreement.
-16-
27. CUMULATIVE REMEDIES
The right of termination will not be the sole remedy under this
Agreement. Whether or not termination is effected, unless specifically provided
otherwise, all other remedies provided for under this Agreement or in law or
equity will remain available to the parties.
28. RIGHT TO INDEPENDENT DEVELOPMENT
Nothing in this Agreement will prevent Xxxxxx from independently
developing (or having developed for it), licensing and marketing directly or
indirectly any product similar to Software provided that in doing so Xxxxxx does
not violate any provision of this Agreement or infringe any of CrossZ's or its
suppliers' intellectual property rights with respect to Software.
29. ENTIRE AGREEMENT
The provisions herein, including all amendments, attachments or
exhibits which refer to this Agreement, constitute the entire agreement between
the parties and supersede all prior agreements, oral or written, and all other
communications between them and/or their agents relating to the subject matter
hereof. No representations were made by either party or its agents as a basis
for entering into this Agreement other than those specifically stated herein.
Acceptance Signatures
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
below by their duly authorized representatives indicating acceptance of the
terms and conditions herein.
FOR XXXXXX
------------------------------
Accepted and Agreed to by:
Signature: /s/ Xxxxxxx Xxx
Name: Xxxxxxx Xxx
Title: Vice President and General Manager, Telecom Business Unit
Date: November 27, 1996
FOR CROSSZ
Accepted and Accepted by
Signature: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice-President
Date: 11/29/96
-17-
EXHIBIT A
to
Software Licensing and Distribution Agreement
by and between
Xxxxxx Corporation and Cross/Z International, Inc.
SOFTWARE:
1. CrossZ Query Object System:
a. Query Object Engine
b. Query Object DBA
c. Query Object Designer
d. Query Object Open
2. Query Object Viewer
3. Query Object Voyager
FUNCTIONAL SPECIFICATIONS AND PERFORMANCE SPECIFICATIONS
(See attached copy of FAX per Xxxxxxx Xxxxxxxx to Xxxx Xxxxxx, Re:
Documentation, dated 11/27/96.)
-00-
XXXXXX
XXXXXXXX
FAX
DATE: 11/27/96
To: Xxxx Xxxxxx
From: Xxxxxxx Xxxxxxxx
RE: Documentation and specifications for Attachment A of
our agreement
End user and systems administrator documentation, for the following products,
will be delivered to Xxxxxx within 5 business days: QueryObject Engine,
QueryObject DBA, QueryObject Designer and QueryObject Viewer.
Individual data sheets for each of the products and an installation guide for
QueryObject Open are in process and will be made available within 90 days.
Documentation for the as yet unreleased Voyager product will be made available
simultaneously with the release of the product.
Return Phone: 000.000.0000
EXHIBIT B
to
Software Licensing and Distribution Agreement
by and Between
Xxxxxx Corporation and Cross/Z International, Inc.
End User License Agreements
TERMS OF END USER LICENSE AGREEMENT
The End User License Agreement that Xxxxxx (or Xxxxxx'x Distributors) will use
in licensing Software to End Users will provide for, at a minimum, the
following:
1. LICENSE(S) TO SOFTWARE. The End User is only licensed to use one copy
of the Binary Code of Software for internal purposes. The End User is granted no
right to make modifications to the Software or otherwise create Derivatives
thereof. Xxxxxx or its licensors retain all title to the Software, and all
copies thereof. Upon termination of the license, the End User shall return all
copies of the Software to Xxxxxx (or its Distributor).
2. LICENSE FEE. The End User will pay a license fee for each copy of the
Software licensed under Paragraph 1.
3. PROHIBITIONS ON COPYING OR DISCLOSURE. The End User is prohibited from
making any copies (other than for backup purposes) of Software and is prohibited
from disclosing the Binary Code of Software or any of the Documentation (except
for marketing materials) to any third party.
4. SOURCE CODE. The End User is granted no rights with respect to any
Source Code and agrees (subject to local law) not to reverse engineer,
decompile, or derive Source Code from the Software.
5. NO ASSIGNMENT. The End User is prohibited from assigning any of its
rights under the End User License Agreement to any third party.
6. OUTSOURCING. The End User may provide a copy of the Binary Code of
Software to a third party that is acting as an outsourcer for the End User (and
only the End User) regarding such Binary Code of Software provided that such
Outsourcer is bound by confidentiality obligations and prohibitions on copying
no less restrictive than those in the End User License Agreement and is
authorized to use the Software only to provide data processing services on
behalf of the End User.
-19-
ATTACHMENT 1
to
Software Licensing and Distribution Agreement
by and Between
Xxxxxx Corporation and Cross/Z International, Inc.
Royalty: Fifty percent (50%) of CrossZ's then current retail
quantity-of-one price for the Software in the country to which
that copy of the Software is shipped or otherwise distributed by
Xxxxxx. Xxxxxx will be entitled to a royalty credit for Software
copies for which a full refund is provided by Xxxxxx if Xxxxxx so
notifies CrossZ in writing (i) in the case of MVS versions of the
Software, no later than ninety (90) days after installation of the
applicable Software copy, but in no event later than one hundred
twenty (120) days after Xxxxxx'x delivery of the applicable
Software copy to its customer, and (ii) in the case of all other
versions of the Software, no later than ninety (90) days after
Xxxxxx'x delivery of the applicable Software copy to its customer.
Xxxxxx shall provide to CrossZ prompt written notice of
installation of each copy of any MVS version of the Software.
CrossZ will consider in good faith each Xxxxxx request to adjust
the royalty for special bids or projects; for countries which
impose a withholding tax but in which a corresponding increase in
Xxxxxx'x price would not be competitive; and to permit Xxxxxx to
sell site licenses, enterprise licenses, and the like for an
agreed royalty. A guideline for these special cases shall be fifty
percent (50%) of Xxxxxx'x selling price of the applicable license,
but this shall only be a guideline and shall not be binding on the
parties. Nothing herein shall obligate CrossZ to agree to any
particular arrangement or royalty in any particular case.
Maintenance: For each Software customer to which Xxxxxx provides Software
support or maintenance, Xxxxxx shall pay to CrossZ an annual fee
equal to thirteen and one-half percent ( 13.5%) of CrossZ's then
current retail quantity-of-one price for the Software in the
country in which the Software is being used. If Xxxxxx is selling
Software support and maintenance in one year subscriptions, this
fee will be due upon the commencement of the one year subscription
period, and CrossZ's then current retail quantity-of-one price for
the Software shall be determined as of that same date. If Xxxxxx
is selling Software support and maintenance on any other basis,
the parties shall establish another payment schedule which
provides to CrossZ the same annual fee of thirteen and one-half
percent (13.5%) of CrossZ's then current retail quantity-of-one
price for the Software in the country in which the Software is
being used. This fee shall apply whether Xxxxxx sells Software
support and maintenance separately, bundles it with the Software
price, or otherwise provides such support or maintenance.
-20-
ATTACHMENT 2
to
Software Licensing and Distribution Agreement
by and Between
Xxxxxx Corporation and Cross/Z International, Inc.
Technical Product Support for Generally Available Software Releases
This section describes the technical product support to Xxxxxx
Corporation that is available when a Software Release becomes generally
available.
Within ninety (90) days after the date of this Agreement, the parties will
complete this Attachment 2 substantially in the form attached hereto as Exhibit
D.
-21-
EXHIBIT C
FORM OF ESCROW AGREEMENT
[Attached]
-22-
SOURCEFLEX
SOFTWARE SOURCE CODE ESCROW AGREEMENT
SOURCEFILE NUMBER:__________
This Software Source Code Escrow Agreement, dated as of__________, 199_
by and between FileSafe, Inc., a California corporation, doing business as
SourceFile ("SourceFile") located at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx, 00000 and ____________________________________ located at
_____________________________________________ ("Depositor"), and each
Beneficiary identified by Depositor to SourceFile as provided for in Paragraph 3
hereof (each a "Beneficiary", collectively the "Beneficiaries").
RECITALS:
A. Pursuant to certain software license agreements (each a
"License Agreement", collectively the "License Agreements"), Depositor licenses
to certain licensees certain software in object code form (the "Software"). A
description of each Software effective as of the date hereof, is attached hereto
as EXHIBIT "A".
B. The Software is the proprietary and confidential information
of Depositor, and Depositor desires to protect such ownership and
confidentiality.
C. Depositor desires to ensure the availability to its
Beneficiaries of the source code and all necessary proprietary information
related to the Software as set forth in the License Agreements (the "Source
Material") in the event certain conditions set forth in Paragraph 4 of this
Agreement should occur.
AGREEMENT:
1. DELIVERY OF SOURCE MATERIAL TO SOURCEFILE. Depositor shall
deliver to SourceFile a parcel (the "Parcel") sealed by Depositor, which
Depositor represents and warrants is two copies of the Source Material.
SourceFile has no knowledge of, and makes no representations with respect to,
the contents or substance of the Parcel, the Software or the Source Material.
2. ACKNOWLEDGEMENT OF RECEIPT BY SOURCEFILE. Promptly after
receipt of the Parcel and of any supplements to the Source Material, SourceFile
shall notify in writing such Beneficiaries for which Depositor has paid
SourceFile the fee for such notice. Depositor shall provide quarterly
supplements to the Source Material for the latest version of the Software.
Depositor shall send to SourceFile a duplicate of the Source Material within
three (3) days after receiving written notice from SourceFile that the Source
Material has been destroyed or damaged. All supplements shall be subject to the
terms and provisions of this Agreement. SourceFile will notify Beneficiary and
Depositor of each update to the Source Material. Such notification will be sent
via certified mail, return receipt required.
3. ACKNOWLEDGEMENT BE BENEFICIARIES. For purposes of this
Agreement, a licensee of the Software shall be a Beneficiary hereunder with such
rights of a Beneficiary as set forth
-23-
herein, ONLY IF (i) such licensee is identified on the current schedule of
Software licensees delivered to SourceFile by Depositor from time to time AND
(ii) such licensee has sent to SourceFile a fully executed copy of the form of
acknowledgement attached hereto as EXHIBIT "B", in which such licensee accepts
the terms of this Agreement. The name and addresses of the Beneficiaries shall
be described in one or more schedules of Beneficiaries to be presented to
SourceFile from time to time by Depositor. A schedule of Beneficiaries effective
as of the date of this Agreement is attached hereto as EXHIBIT "C". All other
licensees of the Software shall have no rights hereunder and SourceFile shall
have no duties to such licensees.
4. TERMS AND CONDITIONS OF THE SOURCE MATERIAL ESCROW. The Parcel
shall be held by SourceFile upon the following terms and conditions:
(i) In the event that (1) SourceFile is notified by A Beneficiary that
Depositor is unwilling or unable to support or maintain the Software in breach
of its License Agreement with Beneficiary and that the Beneficiary has given
Depositor written notice of such breach (the "Release Condition") and (2)
Beneficiary has paid to SourceFile all fees and charges then due and owing,
SourceFile shall follow the following procedures set forth in this Section 4,
parts (ii), (iii) and (iv).
(ii) SourceFile shall promptly notify Depositor of the occurrence of
the Release Condition and shall provide to Depositor a copy of Beneficiary's
notice to SourceFile.
(iii) If SourceFile does not receive Contrary Instructions, as defined
below, from Depositor within thirty (30) days following SourceFile's delivery of
a copy of such notice to Depositor, SourceFile shall deliver a copy of the
Source Material to that Beneficiary. "Contrary Instructions" for the purposes of
this sub-section 3 shall mean the filing of written notice with SourceFile by
Depositor, with a copy to the Beneficiary demanding delivery, stating that the
Release Condition has not occurred or has been cured.
(iv) If SourceFile receives Contrary Instructions from Depositor within
thirty (30) days of the giving of such notice to Depositor, SourceFile shall not
deliver a copy of the Source Material to the Beneficiary, but shall continue to
store the Parcel until: (1) otherwise directed by the Depositor and Beneficiary
jointly; or (2) SourceFile has received a copy of an order of a court of
competent jurisdiction or a written decision by an arbitrator handling the
matter, directing SourceFile as to the disposition of the Source Material.
5. TERM OF AGREEMENT. This Agreement shall have an initial term
of three (3) years. The term shall be automatically renewed on a yearly basis
thereafter, unless Depositor or SourceFile notifies the other party in writing
at least forty-five (45) days prior to the end of the then current term of its
intention to terminate this Agreement. SourceFile shall provide at least a
thirty (30) day notice to Beneficiary of either SourceFile's or Depositor's
intention to terminate this Agreement.
-24-
6. COMPENSATION OF SOURCEFILE. Depositor agrees to pay SourceFile
reasonable fees for the initial establishment of the Escrow, and the Beneficiary
shall pay SourceFile reasonable compensating for all other services to be
rendered hereunder (including without limitation annual maintenance fees), in
each case in accordance with SourceFile's then current schedule of fees. Any
fees associated with Escrow Release Requests and Technical Review/Verification
Requests initiated by a Beneficiary must be paid by that Beneficiary in
accordance with SourceFile's then current schedule of fees. Depositor or the
Beneficiary requesting additional services, as applicable. will pay or reimburse
SourceFile upon request for all reasonable expenses, disbursements and advances,
including software duplication charges incurred or made by it in connection with
carrying out such requested duties hereunder. SourceFile's schedule of fees for
the initial term of this Agreement is attached to this Agreement as EXHIBIT "D".
SourceFile will provide to Depositor and each Beneficiary at least sixty (60)
days prior written notice of any increase in SourceFile's fees.
7. LIMITATION OF DUTIES OF SOURCEFILE. SourceFile undertakes to
perform only such duties as are expressly set forth herein.
8. LIMITATION OF LIABILITY OF SOURCEFILE. SourceFile may rely on
and shall suffer no liability as a result of acting or refraining from acting
upon any written notice, instruction or request furnished to SourceFile
hereunder which is reasonably believed by SourceFile to be genuine and to have
been signed or presented by a person reasonably believed by SourceFile to be
authorized to act on behalf of the parties hereto. SourceFile shall not be
liable for any action taken by it in good faith and believed by it to be
authorized or within the rights or powers conferred upon it by this Agreement.
SourceFile may consult with legal counsel of its own choice, and shall have full
and complete authorization and protection for any action taken or suffered by it
hereunder in good faith and in accordance with the opinion of such counsel.
9. INDEMNIFICATION OF SOURCEFILE. Depositor and Beneficiary agree
to defend and indemnify SourceFile and to hold SourceFile harmless from and
against all claims, actions and suits, whether in contract or in tort, except
for personal injury and tangible property damage to the extent caused by
SourceFile, and from and against any and all liabilities, damages payable to
third parties, costs, charges, penalties, counsel fees and other expenses of any
nature (including, without limitation, settlement costs) incurred by SourceFile
with respect to such claims, actions, and suits, as a result of performance of
this Agreement except in the event that SourceFile acted with gross negligence
or willful misconduct or in breach of this Agreement. In addition, Depositor and
Beneficiary shall only be jointly liable to the extent that (i) they are jointly
negligent and then on a prorated basis, or (ii) neither Depositor or Beneficiary
is negligent.
10. RECORD KEEPING AND INSPECTION OF SOFTWARE. SourceFile shall
maintain complete written records of all materials deposited by Depositor
pursuant to this Agreement. During the term of this Agreement, Depositor shall
be entitled at reasonable times during normal business hours and upon reasonable
notice to SourceFile to inspect the records of SourceFile maintained pursuant to
this Agreement and to inspect the facilities of SourceFile and the physical
condition of the Source Material.
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11. TECHNICAL VERIFICATION. Beneficiary reserves the option to
request SourceFile to verify the Source Material for completeness and accuracy.
SourceFile may elect to perform the verification only at the Depositor's site.
Depositor agrees to cooperate with SourceFile in the verification process by
providing its facilities and computer systems and by permitting SourceFile and
at least one employee of Beneficiary to be present during the verification of
Source Material. Verification shall not include examination of the Source Code
but shall be limited to compilation to demonstrate that the Source Code
corresponds to the Binary Code licensed to the Beneficiary.
12. RESTRICTION ON ACCESS TO AND USE OF SOURCE MATERIAL. Except as
required to carry out its duties hereunder, SourceFile shall not permit any
SourceFile employee, Beneficiary or any other person access to the Source
Material except as provided herein, unless consented to in writing by Depositor.
SourceFile shall use its best efforts to avoid unauthorized access to the Source
Material by its employees or any other person. SourceFile shall use the Source
Material only for the purposes of this Agreement.
13. BANKRUPTCY. Depositor and Beneficiary acknowledge that this
Agreement is an "agreement supplementary to" the License Agreement as provided
in Xxxxxxx 000 (x) xx Xxxxx 00, Xxxxxx Xxxxx Code (the "Bankruptcy Code").
Depositor acknowledges that if Depositor, as a debtor in possession or a trustee
in Bankruptcy in a case under the Bankruptcy Code, rejects the License Agreement
or this Agreement, Beneficiary 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 Beneficiary to Depositor or the Bankruptcy
Trustee, Depositor or such Bankruptcy Trustee shall not interfere with the
rights of Beneficiary as provided in the License Agreement and this Agreement,
including the right to obtain the Source Material from SourceFile.
14. NOTICES. Any notice or other communication required or
permitted under this Agreement shall be in writing and shall be deemed to have
been duly given on the date service is served personally, sent by overnight
courier, or five (5) days after the date of mailing if sent registered mail,
postage prepaid, return receipt required, and addressed as follows or to such
other address or facsimile number as either party may, from time to time,
designate in a written notice given in like manner:
TO DEPOSITOR: _______________________
_______________________
_______________________
_______________________
_______________________
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TO SOURCEFILE: SourceFile
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Customer Service
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
TO BENEFICIARY: As set forth in Exhibit "C" Schedule of Beneficiaries.
15. MISCELLANEOUS PROVISIONS.
(a) WAIVER. Any term of this Agreement may be waived by the
party entitled to the benefits thereof, provided that any such waiver must be in
writing and signed by the party against whom the enforcement of the waiver is
sought. No waiver of any condition, or of the breach of any provision of this
Agreement, in any one or more instances, shall be deemed to be a further or
continuing waiver of such condition or breach. Delay or failure to exercise any
right or remedy shall not be deemed the waiver of that right or remedy.
(b) MODIFICATION OR AMENDMENT. Any modification or amendment
of any provision of this Agreement must be in writing, signed by the parties
hereto and dated subsequent to the date hereof.
(c) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without regard
to the conflict of law provisions thereof.
(d) HEADINGS; SEVERABILITY. The headings appearing at the
beginning of the sections contained in this Agreement have been inserted for
identification and reference purposes only and shall not be used to determine
the construction or interpretation of this Agreement. If any provision of this
Agreement is held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
(e) FURTHER ASSURANCES. The parties agree to perform all acts
and execute all supplementary instruments or documents which may be reasonably
necessary to carry out the provisions of this Agreement.
(f) ENTIRE AGREEMENT. This Agreement, including the Exhibits
hereto, contains the entire understanding between the parties' and supersedes
all previous communications, representations and contracts, oral or written,
between the parties, with respect to the subject matter thereof. It is agreed
and understood that this document and agreement shall be the whole and only
agreement between the parties hereto with regard to these escrow instructions
and the obligations of SourceFile herein in connection with this Agreement, and
shall supersede and
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cancel any prior instructions. SourceFile is specifically directed to follow
these instructions only and SourceFile shall have no responsibility to follow
the terms of any prior agreements or oral understandings.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
DEPOSITOR SOURCEFILE
FILESAFE, INC.
A CALIFORNIA CORPORATION
By:___________________________ By:___________________________
Name:_________________________ Name:_________________________
Title:________________________ Title:________________________
Date:_________________________ Date:_________________________
[SOURCEFILE\B\SOURCE.FLX]
DOCUMENT VERSION DATE: JULY 8, 1994
DOCUMENT PRINT DATE: FEBRUARY 18, 1997
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EXHIBIT "A-____ (-____)"
DESCRIPTION OF SOURCE MATERIAL
SOURCEFILE ACCOUNT #:
The Depositor agrees to deposit the Source Material for the benefit of the
Licensee of this attached escrow arrangement. Below is the acknowledgement that
the deposit arrived at SourceFile in good order. It is completed by the
Depositor and visually inspected by SourceFile. A copy of this form will be
shared with the Licensee of the Source Material. (As multiple deposits are made,
please make copies of this form and number them appropriately. For example, the
initial deposit will be Exhibit "A-l", the supplemental one would be "A-1-2, the
next deposit would be "A-2", supplemental one would be "A-2-2", and so on.)
1. Source Material Deposit
Product Name __________________________________________
Version_____________________________________________
2. Type of Media
- there can be more than one type (i.e. diskette, tape, hardcopy
materials, etc.)
- please include the quantity of type (i.e. two (2) diskettes)
_____________________________________________________
_____________________________________________________
_____________________________________________________
3. Please check one of the following:
Initial Deposit _______ Supplemental_____ Replacement_____*
*If Replacement then: Destroy Deposit ________or Return Deposit____
................................................................................
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Completed by: Visually verified by:
DEPOSITOR SOURCEFILE
signature_______________________ signature______________________
name____________________________ name___________________________
title___________________________ Client Services
date____________________________ date_________________________________
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EXHIBIT "B"
FORM OF ACKNOWLEDGEMENT BY BENEFICIARY
The undersigned hereby acknowledges, accepts and agrees to be bound by
the terms of the attached SourceFlex Software Source Code Escrow Agreement,
SourceFile account number _____________ by and between SourceFile as Escrow
Agent and ______________, as Depositor, dated ___________________, 199_.
BENEFICIARY: By:____________________________________
Name:__________________________________
Title:_________________________________
Address:_______________________________
_______________________________
_______________________________
Phone:_________________________________
Fax:___________________________________
DEPOSITOR: _______________________________________
_______________________________________
Phone:_________________________________
Fax:___________________________________
Please send CERTIFIED OR REGISTERED MAIL to
SOURCEFILE: SOURCEFILE
0000 Xxxx Xxxxx Xxx.
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Client Services
Phone: 000.000.0000
Fax: 000.000.0000
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XXXXXXX "X"
XXXXXXXX OF BENEFICIARIES OF THE SOFTWARE
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EXHIBIT "D"
SCHEDULE OF NOTICES
Deposit notices should be sent to: By:_______________________________
Name:_____________________________
Title:____________________________
Address:__________________________
_______________________________
_______________________________
Phone:____________________________
Fax:______________________________
Deposit notices should be sent to: By:_______________________________
Name:_____________________________
Title:____________________________
Address:__________________________
_______________________________
_______________________________
Phone:____________________________
Fax:______________________________
Invoices should be sent to: By:_______________________________
Name:_____________________________
Title:____________________________
Address:__________________________
_______________________________
_______________________________
Phone:____________________________
Fax:______________________________
Invoices should be sent to: By:_______________________________
Name:_____________________________
Title:____________________________
Address:__________________________
_______________________________
_______________________________
Phone:____________________________
Fax:______________________________
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