Exhibit 10.60
SOURCE LICENSE AGREEMENT
This Source License Agreement (the "Agreement"), dated July 13, 1999, is
entered into by and between Celerity Solutions, Inc., a Delaware corporation,
with offices at 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxxx, 00000
("Licensor"), and Xxxx Xxxx, currently the CEO of Celerity Solutions Inc. whose
home address is 0 Xxxxxxxxx Xxxx, Xxxxxxxxx XX 00000 ("Licensee").
RECITALS
A. Licensor is the owner of certain computer software.
B. Licensee desires to obtain a license to use such software, and Licensor
desires to grant such a license, upon and subject to the terms and conditions
contained in this Agreement.
AGREEMENT
In consideration of the foregoing recitals and the mutual covenants set
forth below, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement, each of the following terms
shall have the meaning stated in this Section 1:
1.1 Licensed Software. "Licensed Software" shall mean the Supply Chain
Planner Software.
1.2 Supply Chain Planner Software. " SCP Software" shall mean the
Source Code and Object Code for that certain software, the Source Code of
which is described on Exhibit A attached hereto.
1.3 Documentation. " Documentation" shall mean technical, user and
marketing materials pertaining to the Licensed Software, together with
other materials created by Licensor to facilitate the usage of Third Party
Tools, all as the same shall exist on the date of this Agreement. Such
materials include, without limitation, procedures manuals, text to the
on-line help, database schematics, program specifications, functional
specifications, flow charts, white papers, published bug lists and features
lists.
1.4 Enhancement. "Enhancement" shall mean (a) any new version, update
or release of the Licensed Software or the Documentation or any prior
Enhancement, (b) any change or addition that, when made or added to the
Licensed Software or Documentation or any prior Enhancement, changes its
utility, efficiency or functional capability, or (c) any change or addition
that, when made or added to the Licensed Software or Documentation or any
prior Enhancement, corrects an error, or a procedure or routine that, when
observed eliminates the adverse effect of that error on the Licensed
Software, Documentation or prior Enhancement.
1.5 Licensee Enhancements. "Licensee Enhancements" shall mean
Enhancements which are developed by Licensee.
1.6 Derivative Works. "Derivative Works" shall mean any Enhancement or
other work that is based upon the Licensed Software or Documentation or a
prior Derivative Work thereof, such as a revision, modification,
translation, abridgement, condensation, expansion, or any other form in
which such preexisting works may be recast, transformed, or adapted, and
that, if prepared without authorization of the owner of the copyright in
such preexisting work, would constitute a copyright infringement.
1.7 Third Party Tools. "Third Party Tools" shall mean all of the third
party software utilized by Licensor to support the creation, development,
maintenance and installation of the Licensed Software, without limitation,
the Third Party Tools identified on Exhibit B.
1.8 Source Code. "Source Code" shall mean computer programming code in
a form that a human, familiar with computer language, may deduce with
reasonable ease, or in an encoded machine readable form, such as
recordation on a magnetic tape or floppy disk, which can be processed by a
computer to produce a printed document that a human, familiar with computer
language, may deduce with reasonable ease.
1.9 Object Code. "Object Code"shall mean computer programming code
that results when a computer translates or processes Source Code into
machine language intermediate code that is not convenient to human
understanding of the program logic, but which is appropriate for execution
or interpretation by a computer.
2. Title.
2.1 Licensor Title. Licensee acknowledges and agrees that, as between
Licensor and Licensee, all right, title and interest in and to the Licensed
Software and the Documentation, as they exist as of the date of this
Agreement and all copyrights and other intellectual property rights with
respect to these items shall be owned exclusively by Licensor.
2.2 Licensee Title. Licensor acknowledges and agrees that, as between
Licensor and Licensee, all right, title and interest in and to (a) all
Licensee Enhancements, (b) all Derivative Works prepared by Licensee
(subject to Licensor's ownership of the preexisting work from which the
Derivative Work is derived, if applicable), and (c) all copyrights and
other intellectual property rights with respect to the items referred to in
clauses (a) and (b), shall be owned exclusively by Licensee.
3. Grant of License.
3.1 Grant of License by Licensor. Subject to the terms and conditions
contained in this Agreement, Licensor hereby grants to Licensee a
perpetual, worldwide, irrevocable, non-exclusive, assignable, transferable
and sub-licensable license to (a) use (for any purpose), execute,
reproduce, market and distribute the Licensed Software, Documentation, all
Licensee Enhancements and other Derivative Works, and (b) make Licensee
Enhancements and other Derivative Works.
4. General Terms.
4.1 Term. The term of this Agreement shall commence on the date of
this Agreement and shall continue in perpetuity (or for the longest period
of time otherwise permitted by law), unless sooner terminated by either
Party as provided in Section 4.4 below.
4.2 Delivery of Licensed Software. Within thirty (30) days following
the date of this Agreement, Licensor shall deliver to Licensee (a) copies
of the Licensed Software (in both Object Code and Source Code form),
including the most recent version thereof and all prior versions, and (b)
copies of the Documentation.
4.3 License Fees. In consideration of the rights granted to Licensee
under this Agreement, Licensee shall pay a license fee to Licensor of
$200,000. Licensee will pay this fee through a reduction in the outstanding
amount owed by Licensor under that certain Non-Negotiable Promissory Note
and Security Agreement dated March 31, 1997 in the original principal
amount of $1,613,177 executed by Licensor in favor of Licensee.
4.4 Non-Compete. Licensee agrees not to license, sublicense, assigns,
sell or otherwise transfer the Licensed Software to a third party until the
early of (a) 12 months after Licensee leaves the employment of Licensor or
any successor in interest or (b) the date Licensor files, or has filed
against it, a petition or other action under any federal or state
bankruptcy or debtor relief laws, or makes an assignment for the benefit of
its creditors.
5. Protection of Proprietary Rights.
5.1 Confidentiality Obligations of Licensee; Copyright Notices.
Licensee shall protect the confidentiality of the Licensed Software, and
the Documentation, using at least as great a degree of care as it uses in
protecting its own highly valuable and confidential trade secrets, but no
less than a reasonable degree of care under the circumstances. Licensee
shall not remove from any copies of the Licensed Software of the
Documentation, any copyright notice of Licensor appearing thereon, and
shall include such copyright notice at the appropriate place on each copy
of the Licensed Software, and the Documentation made by Licensee.
5.2 Trademarks. Licensee acknowledges that Licensor shall continue to
exclusively own all right, title and interest in and to all trademarks
currently used by Licensor in connection with the Licensed Software and the
Documentation and Licensee further acknowledges and agrees that it shall
not in any way utilize such trademarks without the express written consent
of Licensor.
5.3 Residuals. Each of the parties acknowledges that during the course
of the exercise of the rights and obligations granted or imposed by this
Agreement the parties will be given access to confidential information
belonging to each other. Each of the parties shall be free, either during
the term of this Agreement or thereafter, to use for any purpose the
"residuals" resulting from access to or work with such confidential
information. The term "residuals" for purposes of this Agreement shall mean
non-confidential information which may be retained by either party,
including non-confidential ideas, concepts, know-how or techniques
contained therein. Accordingly, but without limiting the generality of the
foregoing, either party shall be free to use "residuals" to develop
software which is similar to and/or competitive with software belonging to
either party to which either party is given access during the course of the
exercise of the rights and obligations granted or imposed under this
Agreement, and the other party shall neither have any right, title or
interest therein, nor shall it be entitled to receive royalties with
respect thereto.
5.4 Limitations on Confidentiality. The restrictions set forth in
Section 5.1 above respecting confidentiality shall not apply to any
material which is (a) rightfully in the public domain; (b) rightfully
received by the receiving party from a third party without any obligation
of confidentiality imposed by the owner of the material in question or
applicable law; (c) rightfully known to the receiving party without any
limitation on use or disclosure prior to its receipt from the other party;
(d) independently developed by personnel of the receiving party; or (e)
generally made available to third parties by the owner of the material in
question without restriction on disclosure. In the event that either party
is requested or required by any tribunal, court or governmental agency (by
oral questions, interrogatories, requests for information or documents,
subpoena, civil investigative demand, formal request or similar process) to
disclose the confidential material of the other party, the party who has
been so requested or required shall provide the other party with prompt
notice of such request(s) so that such party may seek an appropriate
protective order and/or waive the other party's compliance with the
provisions of Section 5 .1, as the case may be. If, in the absence of a
protective order or the receipt of a waiver from the owner of the material
in question, the other party is nevertheless advised by its counsel in
writing that it is required under applicable law to disclose the
information so requested to such tribunal, court or governmental agency,
such party may disclose such information to such tribunal, court or
governmental agency without liability under this Agreement.
6. Competitive Software; Competition. Licensor acknowledges that
Licensee may at any time after termination of the Non-Compete period, as
mentioned in Section 4.5 contained herein, develop, market, distribute
and/or license software products similar to and/or competitive with the
Licensed Software and that nothing contained in this Agreement shall limit
in any way Licensee's right to do so.
7. Disclaimer of Warranties.
7.1 Disclaimer of Licensor's Warranties. Licensee acknowledges and
agrees that, except as stated in Section 8 below, the Licensed Software and
Documentation will be provided to Licensee "as is." EXCEPT AS SPECIFICALLY
PROVIDED, IN THIS AGREEMENT LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL
WARRANTIES PERTAINING TO THE LICENSED SOFTWARE AND THE DOCUMENTATION, OR
THE USE THEREOF, INCLUDING BUT NOT LIMITED TO, ALL WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. Representations and Warranties.
8.1 Representations and Warranties by Licensor. Licensor hereby
represents and warrants to Licensee that (a) Licensor is the sole owner of
all right, title and interest in and to the Licensed Software and the
Documentation as the same exist as of the date of this Agreement, and of
all copyrights and other intellectual property rights with respect thereto,
(b) Licensee's exercise of the rights granted to it under this Agreement
with respect to the Licensed Software, and the Documentation will not
violate any copyright or other intellectual property right of any other
person or entity.
8.2 Representations and Warranties by Licensee. Licensee hereby
represents and warrants to Licensor that (a) Licensor will be the sole
owner of all right, title and interest in and to any and all Licensee
Enhancements, and of all copyrights and other intellectual property rights
with respect thereto, and (b) Licensor's exercise of the rights granted to
it under this Agreement with respect to the Licensee Enhancements will not
violate any copyright or other intellectual property right of any other
person or entity.
9. Additional Covenants.
9.1 Hiring of Employees. Licensor and Licensee each acknowledge that
it would receive substantial value and that the other would be deprived of
the benefits of its work force if it were to hire any person who is, as of
the date of this Agreement, a full-time employee of the other party, unless
at least twelve months shall have elapsed between the termination of such
person's employment with one party and his or her hiring by the other
party. It is further acknowledged that a breach of this Section 9.1 would
result in injury to the non-breaching party that would be difficult or
impossible to accurately ascertain. Therefore, because of the impossibility
of ascertaining actual damages, it is agreed that in the event of a breach
of this Section 9.1, the breaching party will pay to the other party with
respect to each such breach the sum of Fifty Thousand Dollars ($50,000), as
liquidated damages and not as a penalty. The parties agree that the amount
of liquidated damages specified herein represents a reasonable
approximation of the damages which would be incurred as a result of the
breach of this Section 9.1.
10. Indemnification.
10.1 Indemnification by Licensor. Licensor shall indemnify, defend,
and hold Licensee harmless from and against any and all losses,
liabilities, claims, obligations, costs and expenses, including but not
limited to reasonable attorneys' fees, suffered or incurred by Licensee as
the result of the inaccuracy of any representation or warranty made by
Licensor in this Agreement, or the breach by Licensor of any of its
covenants or obligations under this Agreement; provided, however, that in
no event shall Licensor's liability hereunder exceed $200,000.
10.2 Indemnification by Licensee. Licensee shall indemnify, defend,
and hold Licensor harmless from and against any and all losses,
liabilities, claims, obligations, costs and expenses, including but not
limited to reasonable attorneys' fees, suffered or incurred by Licensor as
the result of the inaccuracy of any representation or warranty made by
Licensee in this Agreement, or the breach by Licensee of any of its
covenants or obligations under this Agreement.
11. Miscellaneous.
11.1 Modification. No amendment or addition to, or modification of,
any provision contained in this Agreement shall be effective unless fully
set forth in writing signed by both of the parties hereto.
11.2 Attorneys' Fees. In the event of any arbitration or proceeding
arising out of or related to t his Agreement, the prevailing party shall be
entitled to recover from the other party all of the prevailing party's
costs and expenses incurred in connection with such arbitration or
proceeding, including court costs and reasonable attorneys' fees.
11.3 Choice of Law. This Agreement shall be governed by and construed
under the laws of the Commonwealth of Massachusetts, irrespective of such
state's choice-of-law principles.
11.4 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof, and is
the final, complete and exclusive expression of the terms and conditions
thereof. All prior or contemporaneous agreements, representations,
negotiations and understandings of the parties hereto, oral or written,
express or implied, are hereby superseded and merged herein.
11.5 Captions. The captions of the sections and subsections of this
Agreement are inserted solely for convenience of reference and are not a
part of and are not intended to govern, limit or aid in the construction of
any term or provision hereof.
11.6 General Interpretation. The terms of this Agreement have been
negotiated by the parties hereto and the language used in this Agreement
shall be deemed to be the language chosen by the parties hereto to express
their mutual intent. This Agreement shall be construed without regard to
any presumption or rule requiring construction against the party causing
such instrument or any portion thereof to be drafted, or in favor of the
party receiving a particular benefit under the agreement. No rule of strict
construction will be applied against any person.
11.7 Notices. All notices, requests, demands, and other communications
required to or permitted to be given under this Agreement shall be in
writing and shall be conclusively deemed to have been duly given (i) when
hand delivered to the other party; or (ii) when received when sent by telex
or facsimile at the address and number set forth below (provided, however,
that notices given by facsimile shall not be effective unless either (a) a
duplicate copy of such facsimile notice is promptly given by depositing the
same in a United States post office with first-class postage prepaid and
addressed to the parties as set forth below, or (b) the receiving party
delivers a written confirmation of receipt for such notice either by
facsimile or any other method permitted under this Section; additionally,
any notice given by telex or facsimile shall be deemed received on the next
business day if such notice is received after 5:00 p.m. (recipient's time)
or on a nonbusiness day); or (iii) three (3) business days after the same
have been deposited in a United States post office with first class or
certified mail return receipt requested postage prepaid and addressed to
the parties as set forth below; or (iv) the next business day after the
same have been deposited with a national overnight delivery service
reasonably approved by the parties (Federal Express and DHL WorldWide
Express being deemed approved by the parties), postage prepaid, addressed
to the parties as set forth below with next-business-day delivery
guaranteed, provided that the sending party receives a confirmation of
delivery from the delivery service provider.
If to Licensor:
Celerity Solutions, Inc.
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Chief Executive Officer
FAX (000) 000-0000
If to Licensee:
Xxxx Xxxx
0 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Each party shall make an ordinary, good faith effort to ensure that it will
accept or receive notices that are given in accordance with this Section,
and that any person to be given notice actually receives such notice. A
party may change or supplement the addresses given above, or designate
additional addresses, for purposes of this Section by giving the other
party written notice of the new address in the manner set forth above.
11.8 Relationship of Parties. Each party acknowledges that it is an
independent entity and is not subject to the control of the other party in
any manner except as otherwise expressly provided herein. Nothing contained
herein shall be construed to constitute the parties as partners or joint
venturers, or to render either party liable for any of the debts or
obligations of the other party. Neither party has any authority to bind the
other party in any manner whatsoever except as otherwise expressly provided
herein.
11.9 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original but all of which
taken together shall constitute but one and the same instrument.
11.10 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
heirs, representatives, successors and assigns.
[THE SIGNATURES HERETO APPEAR ON THE FOLLOWING PAGE.]
IN WITNESS WHEREOF, the parties hereto have executed this Source License
Agreement.
CELERITY SOLUTIONS, INC.
By: /s/Xxxx Xxxx
---------------------------
Its: President
XXXX XXXX
By: /s/ Xxxx Xxxx
---------------------------
EXHIBIT A
DESCRIPTION OF SUPPLY CHAIN PLANNER SOFTWARE
The SCP software is all of the C, C++, and Visual Basic software related to
Supply Chain Planning, Supply Chain Monitoring, Transportation Planning and Load
Building. that Celerity obtained through the acquisition of Client Server
Technologies Inc., on March 31, 1997, plus all of the subsequent versions which
have been developed from the date of that acquisition through the date of this
Agreement. Without limiting the generality of the foregoing, the SCP Software is
further defined, without any limitation, as a system that (a) receives messages
for supply, demand, forecast and inventory balances, (b) contains a model for
resupplying items and locations, (c) maintains a schedule of planned order for
each product and location, (d) performs xxxx-of-material explosions and plans
resultant material requirements, (e) monitors supply and demand and generates
appropriate exception notices on request, (e) provides the ability to establish
multiple planning databases called planning domains and allows the user to link
supply and demand across domains, (f) provides transportation planning and load
building facilities, (g) provides the ability to browse and page through graphs
projecting inventory availability for multiple products at multiple locations.
Capitalized terms which are used in this Description of the Supply Chain
Planner Software and which are not otherwise defined herein shall have the
meaning given to them in the Agreement.
EXHIBIT B
THIRD PARTY TOOLS
Tool Name Tool Description Purpose
Oracle 7.3.x Relational Database Continuum Server Database
Personal Oracle 7.3.x Relational Database for Laptop Server Database for demos on Laptop
Microsoft Visual C++ Programming language WMS RF
Pro-C Compiler 2.2.4 Pre Compiler for C Pre-compile SQL based C code into C code
MS Visual Source Safe Version Control Version Control
PL/SQL Oracle Debugger Oracle PL/SQL Debugger Debugging PL/SQL code running on the
server
Doc to Help Online Help documentation Tool Creation of online documentation for
help screen integrated into the
application
Micro Focus COBOL Programming language Development of the Micro Focus based
products
