Exhibit 99.2
TECHNOLOGY LICENSE AGREEMENT
This Technology License Agreement ("License Agreement") is made as of the 4th
day of September, 1997 ("Effective Date"), by and between Pro CD, Inc.
("Licensor"), a Delaware corporation with a place of business at 000 Xxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000-0000 (and CD-Rom Technologies, Inc.
("Licensee"), a Delaware corporation with a place of business at 0000 Xxxxx
00/xx/ Xxxxxx, P.O. Box 27347, Xxxxx, Xxxxxxxx 00000.
WHEREAS, for the terms and the mutual covenants contained herein, and for other
good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties agree as follows:
ARTICLE I - DEFINITIONS
1.1 "Licensee" shall include the above-named company and any divisions,
subsidiaries or affiliates of such company.
1.2 "Technology" shall include Licensor's SelectPhone search engine technology
and Licensor's SelectLink technology, including the source codes and all
Licensor updates thereto.
1.3 "Documentation" shall include all manuals, specifications and written
correspondence including electronic, machine-readable form regarding the
Technology.
ARTICLE II - LICENSE
2.1 Subject to all of the terms and conditions of this License Agreement and
that certain Agreement of Sale ("Agreement") dated July 24, 1997, Licensor
hereby grants to Licensee a perpetual, transferable license ("License") to use
the Technology in accordance with paragraph 1(d) of the Agreement, such License
to be exclusive to Licensee for Business (as defined in the Agreement) sales,
except that Licensor shall continue to have the right to use the licensed
technology for its own purposes and except for other licenses therefor in
existence as of the date of the Agreement. Licensee agrees to accept electronic
delivery(ies) of the Technology from Licensor at Licensee's Xxxxxx Lake, Iowa
facility.
2.2 Licensee shall pay Licensor a license fee of Eight Million Dollars
($8,000,000) for the Technology, payable over two (2) years in quarterly
installments of One Million Dollars ($1,000,000) each. Licensee shall pay
Licensor a fee of Five Hundred Dollars ($500.00) for the Documentation.
2.3 Licensee shall pay to Licensor all taxes (including, without limitation,
sales, use, property, excise, value added and gross receipts) levied upon this
License Agreement or the Technology, except taxes based upon Licensor's net
income or corporate franchise. Licensee may provide Licensor with a tax
exemption number or affidavit of exemption; provided, however, that Licensee
agrees to indemnify Licensor for any taxes, penalties and interest arising from
claimed exemptions which are disallowed by any governmental agency.
2.4 Title and ownership rights to the Technology, Documentation, and other
materials relating thereto supplied by Licensor to Licensee shall remain in
Licensor, and Licensee acknowledges that the same are subject to the proprietary
rights of Licensor. Licensee agrees that the Technology, Documentation and all
information or data relating thereto supplied by Licensor are trade secrets of
Licensor except where otherwise noted. Licensee further understands that all
operator manuals, training aids and other written materials produced by Licensor
are subject to copyright laws.
ARTICLE III - TECHNOLOGY OWNERSHIP
Licensor represents that it has full right, title and authority to license the
Technology to Licensee. Licensee specifically acknowledges that this License
Agreement is not and shall not be construed as an assignment, sale or any other
transfer of title or ownership rights in the Technology or the Documentation to
Licensee.
ARTICLE IV - WARRANTY
4.1 EXCEPT AS OTHERWISE PROVIDED HEREIN, THE TECHNOLOGY IS PROVIDED "AS IS"
WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN
THE TECHNOLOGY WILL MEET LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF THE
TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR FREE.
4.2 Licensee's exclusive remedies for damage or loss arising from use of the
Technology or from Licensor's support services or breach of warranty hereunder
shall be the repair or replacement of the Technology at no cost to Licensee. In
the event that repair or replacement is not possible within a reasonable period
of time, Licensee shall be entitled to terminate the License. Licensor shall
have no liability for any problems in the Technology caused by alteration or
modification by Licensee, or for problems arising out of the malfunction of
Licensee's equipment or other technology not supplied by Licensor.
4.3 EXCEPT AS PROVIDED IN ARTICLE V HEREIN, IN NO EVENT SHALL LICENSOR'S
LIABILITY, ARISING OUT OF OR BASED UPON THIS LICENSE AGREEMENT REGARDLESS OF THE
FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, INCLUDING, WITHOUT
LIMITATION, ANY ACTION IN TORT OR CONTRACT, EXCEED ONE MILLION AND NO/100
DOLLARS ($1,000,000.00).
ARTICLE V - PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY
5.1 Licensor warrants that the use of the Technology will not infringe upon
any United States patent, copyright or trade secret. Licensor, at its own
expense, will defend or settle any claim, suit or proceeding brought by a third
party against Licensee alleging infringement, and Licensor shall indemnify
Licensee for all costs (including attorneys' fees and costs) or damages awarded
as a result of such infringement, provided that Licensor is given prompt notice
of any such claim, suit or proceeding and sole control of the defense of such
claim, suit or proceeding, including negotiations, appeals and settlements;
provided, however, that if Licensor does not proceed diligently to defend,
Licensee shall have the right, but not the obligation, to control the defense
without impairing its indemnification rights hereunder. Licensee agrees to
provide reasonable information and assistance to Licensor, at Licensor's
expense. This indemnity shall not apply to any claim of infringement resulting
from Licensee's modification of the Technology or the combination of the
Technology with other software not provided by Licensor.
5.2 If the Technology is held to infringe, or in Licensor's opinion is likely
to be held to infringe, any third party intellectual property right, Licensor
shall, at its expense, secure the right for Licensee to continue using the
Technology or shall replace or modify the Technology to make it noninfringing.
If commercially reasonable efforts to achieve the foregoing are unsuccessful,
Licensee shall be entitled to terminate the License.
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ARTICLE VI - LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL
OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING WITHOUT LIMITATION, DAMAGES
FOR LOSS OF GOOD WILL, WORK STOPPAGE, DATA LOSS, LOST PROFITS OR COMPUTER
FAILURE, REGARDLESS OF THE FORM IN WHICH ANY LEGAL ACTION OR EQUITABLE ACTION
MAY BE BROUGHT, INCLUDING WITHOUT LIMITATION, ANY ACTION IN TORT OR CONTRACT.
ARTICLE VII - MISCELLANEOUS
7.1 Each party agrees to perform its obligations hereunder in accordance with
all applicable laws, rules and regulations now or hereafter in effect. If any
term or provision of this License Agreement shall be found to be illegal or
unenforceable, then notwithstanding such a finding, this License Agreement shall
remain in full force and effect, and the illegal or unenforceable provision
shall be deemed stricken.
7.2 The persons signing this License Agreement on behalf of the respective
parties have been properly authorized and empowered to do so. Any notice
required or permitted to be given hereunder shall be in writing sent by
certified or registered mail addressed to the parties at their respective
addresses set forth above.
7.3 This License Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to conflict of law
principles.
7.4 Neither party shall be liable for delays in performance or non-performance
under this License Agreement caused by such events as fires, power failures or
surges, strikes, riots, war, governmental regulation, failure of third parties,
acts of God, or, without limiting the generality of the foregoing, causes beyond
the parties' control.
7.5 The headings used in this License Agreement are for reference purposes
only and shall not be deemed a substantive part of this License Agreement.
7.6 No amendment or waiver of any provision of this License Agreement shall be
effective unless the same shall be in writing and signed by the authorized
representative of each party. Any waiver or consent given by the parties shall
be effective only in the specific instance and for the specific purpose for
which it is given.
7.7 Licensee shall have the right, but not the obligation, to offset against
the fees payable hereunder as provided in paragraph 15 of the Agreement.
7.8 This License Agreement and the applicable portions of the Agreement
constitute the entire agreement between the parties and supersedes all proposals
or prior agreements, whether written or oral, regarding the subject matter of
this License Agreement.
7.9 This License Agreement may be executed in any number of counterparts,
including facsimile copies, each of which may be executed by less than all of
the parties hereto, each of which shall be enforceable with respect to the
parties actually executing such counterparts, and all of which together shall
constitute one document.
[Signature Page To Follow.]
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IN WITNESS WHEREOF, the parties caused this License Agreement to be executed by
their duly authorized representative as of the date first written above.
CD-ROM TECHNOLOGIES, INC. PRO CD, INC.
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Signature Signature
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Printed Name Printed Name
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Title Title
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