EXHIBIT 10.48
Agreement Number: ML-038
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Effective Date: October 25, 1996
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LICENSE AGREEMENT
This License Agreement (the "Agreement") made this 25th day of October, 1996 by
and among MILLENNIUM DYNAMICS, INC., 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000
("Millennium Dynamics, Inc.") and XXXXXXXX BRANDS INTERNATIONAL, INC., 000 Xxxx
Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 (hereinafter collectively referred to as
the "Customer").
W I T N E S S E T H:
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WHEREAS, Millennium Dynamics, Inc. has developed and is the owner of certain
computer software programs it desires to license to the Customer; and
WHEREAS, the Customer desires to license such programs from Millennium Dynamics,
Inc.
NOW, THEREFORE, in consideration of the mutual terms and conditions set forth
herein, the parties agree hereto as follows:
1. DEFINITIONS.
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For purposes of this Agreement, the following terms shall have the meanings set
forth below:
1.1 Confidential Information -- "Confidential Information" means the Software
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(as defined herein) and all information disclosed to or known by the
Customer about Millennium Dynamics, Inc.'s marketing strategy, business
practices, customers, finances, products, software, computer programs,
services, methods and processes. "Confidential Information" also includes
any and all information which this Agreement provides shall be deemed to
be Confidential Information.
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1.2 Agreement. -- This "Agreement" shall mean and include this document, all
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Schedules, Appendices, Product Description Manuals, and Addenda attached to
this document or added to it by amendment or incorporated herein by
references.
2. GRANT.
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Subject to the terms and conditions of this Agreement and in consideration of
the payment of specified fees by the Customer, Millennium Dynamics, Inc. hereby
grants to the Customer a nonexclusive right to use the object code version of
each computer program listed on the Software Schedule attached hereto and
incorporated herein by reference and all manuals, instructions, documentation
coding sheets and other documents or information relating thereto (collectively,
the "Software") at the computer site(s) and on the CPU(s) indicated for such
programs on the Software Schedule. This license is for the designated CPU(s) at
the designated site. The Customer has no right to copy any of the Software,
except for purposes of system backup. On any backup copy of the Software, the
Customer shall reproduce all original copyright notices and claims of
confidentiality, proprietary rights or trade secret.
3. LIMITS ON USE.
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The Customer shall use the Software for the Customer's internal purposes only
for its own business purposes and shall not use the Software for the benefit of
or to provide services to any third party or unaffiliated organization. Without
limiting the generality of the foregoing restriction, the Customer shall not use
any of the Software to perform data processing services or service bureau
activated for a third party or an unaffiliated organization. The license
granted to Customer hereunder does permit the Customer to use the Software for
the benefit of Customer's affiliates, so long as such use is on the designated
CPU(s) at the designated site identified on the Software Schedule.
4. FEES AND TAXES.
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For each site listed on the Software Schedule, the Customer shall pay to
Millennium Dynamics, Inc. the license fees specified on the Software Schedule
upon installation of the Software at such site.
4.1 Due Date. -- Unless otherwise specified in this Agreement, all amounts
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payable by the Customer to Millennium Dynamics, Inc. shall be paid within
thirty (30) days after the date of Millennium Dynamics, Inc.'s invoice to
the Customer for such amounts.
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4.2 Late Payment. -- If the Customer fails to make payment when due
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hereunder, then the Customer shall pay interest to Millennium Dynamics,
Inc. at the rate of one and one half percent (1.5%) per month for any
unpaid balance (including previously accrued interest charges) outstanding
at the end of each calendar month after payment is first due. The Customer
shall also pay Millennium Dynamics, Inc. for any reasonable expenses
(including attorneys' fees) incurred by Millennium Dynamics, Inc. in
connection with the collection of any amounts due to Millennium Dynamics,
Inc. from the Customer.
4.3 Taxes. -- All amounts specified in this Agreement to be paid to Millennium
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Dynamics, Inc. by the Customer are net of taxes. Thus, if Millennium
Dynamics, Inc. or the Customer is required to pay any sales, use, export,
import, excise or other taxes (whether federal, state, local or otherwise)
imposed with respect to this Agreement or any of the transactions
contemplated hereby, such taxes shall be paid by the Customer or the
Customer shall reimburse Millennium Dynamics, Inc. for any such taxes paid
by Millennium Dynamics, Inc. Taxes based on Millennium Dynamics, Inc.'s
net income and Millennium Dynamics, Inc.'s franchise taxes shall be the
sole responsibility of Millennium Dynamics, Inc.
5. ADDITIONAL SITES OR CPU(S).
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New sites or CPU(s) other than those listed on the Software Schedule will
require a license fee as specified in the Software Schedule. Any upgrade of a
CPU will also require an additional fee as determined by Millennium Dynamics,
Inc. The new site or CPU(s) fee shall be listed on an amended Software Schedule
and the license fee shall be paid in accordance with Section 4. above.
6. CONFIDENTIALITY AND OWNERSHIP.
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The Software and all derivatives and modifications thereof (including ones made
by or for the Customer) shall at all times be and remain the property of
Millennium Dynamics, Inc., and the Customer shall have no rights thereto except
as explicitly provided elsewhere in this Agreement. The Software and all
derivatives and modifications thereof shall be deemed to be Confidential
Information of Millennium Dynamics, Inc. and shall be subject to the terms and
provisions of this Agreement which govern Confidential Information.
6.1 General. -- The Customer will keep confidential, will use only for the
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Customer's benefit as expressly permitted elsewhere in this Agreement and
will not disclose to others without Millennium Dynamics, Inc.'s prior
written approval, all Confidential Information.
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6.2 Limited Access. -- The Customer shall limit access to Confidential
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Information to those employees who require such access in order to permit
the Customer to use the Confidential Information as expressly permitted
elsewhere in this Agreement in furtherance of the Customer's business.
6.3 Best Efforts. -- The Customer shall take all reasonable precautions to
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maintain the confidentiality of all Confidential Information. Without
limiting the generality of the foregoing, the Customer shall employ
precautions for the protection of Confidential Information which are no
less stringent than those employed by the Customer to protect its own
confidential and proprietary information and/or trade secrets.
6.4 Return or Destruction. -- If at any time the Customer has in its possession
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or under its control one or more copies (whether partial or complete) of
any Confidential Information which the Customer does not at such time,
pursuant to the terms of this Agreement, have the right to use at the
designated site(s) and/or on the designated CPU(s), then the Customer shall
(without the requirement of any notice or demand from Millennium Dynamics,
Inc.) either deliver to Millennium Dynamics, Inc. or destroy all such
copies, whether partial or whole and regardless of form. If the Customer
elects to destroy such copies, it agrees to notify Millennium Dynamics,
Inc. promptly that such copies have been destroyed.
7. EXCLUSION OF WARRANTIES.
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Except as explicitly provided elsewhere in this Agreement, all information,
products and/or services provided to the Customer by Millennium Dynamics, Inc.
are provided "as is" and without any express or implied warranties whatsoever,
including, but not limited to any implied warranty of merchantability or fitness
for a particular purpose.
8. LIMITED WARRANTIES.
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8.1 General Provisions. -- In any case for which two or more limitations of
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Millennium Dynamics, Inc.'s liability are specified in this Agreement,
Millennium Dynamics, Inc.'s liability shall be limited to the smallest of
such limitations. In no event shall Millennium Dynamics, Inc. be liable
(under any contract, tort, or other theory) for any special, indirect,
incidental or consequential damages arising out of or in connection with
this Agreement, including, without limitation, loss of anticipated profits
or loss resulting from business disruption, even if Millennium Dynamics,
Inc. has been advised of the possibility of such damages. In no event
shall the liability of Millennium Dynamics, Inc. for damages arising out of
or in connection with this Agreement (under any contract, tort, or other
theory) exceed the amount of all payments actually
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received by Millennium Dynamics, Inc. from the Customer in connection with
the programs responsible for such damage.
8.2 Media. -- Millennium Dynamics, Inc. hereby warrants to the Customer that
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all of the magnetic media delivered to the Customer by Millennium Dynamics,
Inc. on which any of the Software is recorded (including any disks or
tapes, but excluding the information recorded thereon) are free from
defects in materials and faulty workmanship at the time of shipment by
Millennium Dynamics, Inc. If any defect exists at the time of shipment
which is detected within ninety (90) days of the time of shipment, then the
defective item will be replaced by Millennium Dynamics, Inc. at no charge
to the Customer. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES ON THE
MAGNETIC MEDIA, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN NO EVENT SHALL
MILLENNIUM DYNAMICS, INC. BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES ARISING FROM ANY DEFECTS IN THE MAGNETIC MEDIA.
8.3 Software. -- For each program listed on the Software Schedule, subject to
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the limitations of liability contained in this Agreement, Millennium
Dynamics, Inc. warrants that such program (as delivered to the Customer
and when used by the Customer without modification for its intended purpose
and in accordance with this Agreement) (i) does not and will not infringe,
violate or invade any copyright, trade secret, patent, or other proprietary
right of any third party, and (ii) so long as such program is supported by
Millennium Dynamics, Inc. and unmodified by the Customer and used in
accordance with this Agreement, it will operate substantially as specified
within the product description manual. EXCEPT FOR THE FOREGOING WARRANTIES
OF NON-INFRINGEMENT AND OPERATION IN SUBSTANTIAL COMPLIANCE WITH
SPECIFICATIONS, THE SOFTWARE IS PROVIDED "AS IS", WITHOUT ANY EXPRESS OR
IMPLIED WARRANTIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.4 Limitation of Liability. -- IN NO EVENT SHALL MILLENNIUM DYNAMICS, INC. BE
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LIABLE (UNDER ANY CONTRACT, TORT, OR OTHER THEORY) FOR ANY SPECIAL,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE PERFORMANCE
OF THIS AGREEMENT OR IN CONNECTION WITH THE SOFTWARE, INCLUDING, WITHOUT
LIMITATION, LOSS OF ANTICIPATED PROFITS OR LOSS RESULTING FROM BUSINESS
DISRUPTION, EVEN IF MILLENNIUM DYNAMICS, INC. HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF
MILLENNIUM DYNAMICS, INC. FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH
THE USE OR PERFORMANCE OF THE SOFTWARE (UNDER ANY CONTRACT,
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TORT OR OTHER THEORY) EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY
MILLENNIUM DYNAMICS, INC. FROM THE CUSTOMER IN CONNECTION WITH THE
PROGRAM(S) RESPONSIBLE FOR SUCH DAMAGES.
8.5 Correction of Errors. -- The Customer understands and accepts the risk
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that errors may exist or occur in the Software, and agrees that no such
error will be deemed to violate the warranty contained in subpart (ii) of
Section 8.3 of this Agreement, provided Millennium Dynamics, Inc.
diligently investigates and corrects such error after the Customer reports
it to Millennium Dynamics, Inc. Without limiting the generality of the
foregoing, the Customer accepts responsibility for testing the accuracy of
any and all conversion generated by the Software and agrees that in the
event of any error, Millennium Dynamics, Inc. shall have no liability for
any lost profits or other damages suffered by the Customer in connection
with the Customer's reliance upon the results of such conversion.
8.6 Indemnification. -- Subject to the limitations of liability contained in
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this Agreement, and this Section 8, Millennium Dynamics, Inc. agrees to
indemnify and hold harmless the Customer from all costs, expenses
(including reasonable attorneys' fees), losses, liabilities, damages, and
settlements arising out of or in connection with any claim or suit based on
allegations which, if true, would constitute a breach of the warranty of
non-infringement contained in subpart (i) of Section 8.3 of this
Agreement. HOWEVER, IN NO EVENT SHALL THE LIABILITY OF MILLENNIUM
DYNAMICS, INC. UNDER THIS SECTION 8.6 EXCEED THE AMOUNT OF FEES ACTUALLY
RECEIVED BY MILLENNIUM DYNAMICS, INC. FROM THE CUSTOMER IN CONNECTION WITH
THE PROGRAM(S) WHICH PURPORTEDLY VIOLATE SUCH WARRANTY.
8.6.1 Notice. -- The Customer shall as soon as practicable, notify
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Millennium Dynamics, Inc. in writing of any claim or suit which
might give rise to a claim for indemnification by Millennium
Dynamics, Inc. hereunder.
8.6.2 Defense. -- In the event of such a claim or suit, Millennium
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Dynamics, Inc. will employ counsel for the defense and settlement
thereof, shall file proper pleadings in said suit within the time
required by law, and shall keep the Customer informed of all
developments. If the suit is brought to trial, Millennium
Dynamics, Inc. shall conduct the defense thereof. The Customer,
at its own election and expense, shall always have the right to
employ its own counsel and to monitor Millennium Dynamics, Inc.'s
activities. In such event, Millennium Dynamics, Inc. and the
Customer shall cooperate fully.
8.7 Right to Cure or Terminate. -- If any claim or suit based on allegations,
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which, if true, would constitute a breach of the warranty of non-
infringement contained in subpart (i) of Section 8.3 of this Agreement with
respect to one of the
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program(s) listed on the Software Schedule, is brought or threatened
against either Millennium Dynamics, Inc. or the Customer, then Millennium
Dynamics, Inc. shall have the right, at its option and expense, to do any
one or more of the following:
8.7.1 Obtain for the Customer the right to continue using such program
or a modified version thereof;
8.7.2 Replace all or part of such program with a non-infringing
program, or
8.7.3 Terminate the license granted to the Customer with respect to
such program and refund to the Customer an amount equal to the
unamortized portion of the license fees paid to Millennium
Dynamics, Inc. by the Customer in connection with such program.
For these purposes, license fees shall be amortized on a straight
line method over five years; thus, the unamortized portion of an
license fee would be equal to the greater of (a) zero and (b) the
initial license fee divided by 5, then divide that quotient by
12, and multiply that quotient by the difference between 60 and
the number of months since the license fee was received by
Millennium Dynamics, Inc. (for example, 6,000 (divided by) 5 =
1,200; 1,200 (divided by) 12 = 100; 100 x (60 - 12) = $4,800).
9. MAINTENANCE.
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9.1 Error Correction. -- So long as Millennium Dynamics, Inc. continues to
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support the programs listed on the Software Schedule, Millennium Dynamics,
Inc. agrees to diligently investigate and attempt to correct any error in
such programs reported to Millennium Dynamics, Inc. by the Customer and
determined by Millennium Dynamics, Inc. to be an error in such programs or
in the operating procedures recommended by Millennium Dynamics, Inc. Such
services shall be provided at no additional cost to the Customer.
However, if Millennium Dynamics, Inc. determines that any error reported by
the Customer is not an error in such programs or operating procedures, the
Customer promptly shall pay Millennium Dynamics, Inc. for its services in
investigating and/or correcting such error at Millennium Dynamics, Inc.'s
then current consulting fees and shall reimburse Millennium Dynamics, Inc.
for reasonable travel and living costs incurred in connection with such
services.
9.2 Updates and Related Products. -- For each program listed on the Software
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Schedule, Millennium Dynamics, Inc. may from time to time, at Millennium
Dynamics, Inc.'s option, develop and distribute a new version or revision
of such program (an "Update") or a new product which is related to such
program and may in fact be a derivative of such program (a "Related
Product"). In
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general, a program which simply corrects errors or enhances the existing
features and functions of a program is an Update, while one which adds new
functions and features is a Related Product. Whenever there is any question
whether a particular program is an Update or a Related Product, Millennium
Dynamics, Inc. shall make a determination which shall be binding upon both
Millennium Dynamics, Inc. and the Customer.
Millennium Dynamics, Inc. shall provide to the Customer, for the
maintenance fees identified on the Software Schedule, all Updates to all
programs listed on the Software Schedule (herein referred to as
"Maintenance"). All Updates provided to the Customer hereunder shall be
deemed to be Software and confidential information and shall be subject to
the provisions of this Agreement. The Customer will be contractually
obligated to maintain the Software based on the most recent version that
Millennium Dynamics, Inc. releases. Failure by the Customer to do so will
release Millennium Dynamics, Inc. of any warranty or performance liability
hereunder. Millennium Dynamics, Inc. shall offer to the Customer, for
additional fees to be determined by Millennium Dynamics, Inc. at the time
of the offering, the option to add any Related Product to the Software
Schedule.
9.3 Maintenance Fees. -- The Customer shall receive the first year of
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Maintenance at no charge. The first year of Maintenance shall commence on
the effective date of this Agreement and shall terminate automatically on
the day before the first anniversary of the effective date of this
Agreement. The second year and each year thereafter of Maintenance shall
be calculated in the same manner. The Customer shall have the option to
purchase subsequent years of Maintenance at the rate identified on the
Software Schedule. Customer shall notify Millennium Dynamics, Inc. thirty
(30) days before the end of the first anniversary of the effective date of
this Agreement whether it intends to acquire Maintenance for the subsequent
period. Customer may elect to terminate Maintenance for any subsequent
period by providing Millennium Dynamics, Inc. notice thirty (30) days
before the anniversary of an effective date of this Agreement. A
termination of maintenance does not preclude the Customer from using the
Software. However, if the Customer elects at any time not to receive
Maintenance and then subsequently makes such an election, Customer shall be
required to pay for the periods during which Maintenance is not provided as
a condition to receiving Maintenance for the current period.
9.4 Limited Warranties. -- The warranty granted by Millennium Dynamics, Inc.
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herein for Maintenance is a limited warranty only. The parties agree that
this is a contract for services and is not covered by Article 2 of the
Uniform Commercial Code. Millennium Dynamics, Inc. agrees that it will
perform all services hereunder in a proper and workmanlike manner in
accordance with industry standards. THIS WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
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IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN NO EVENT SHALL MILLENNIUM
DYNAMICS, INC. BE LIABLE (UNDER ANY CONTRACT, TORT, OR OTHER THEORY) FOR
ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM
THE PERFORMANCE OF THIS AGREEMENT OR IN CONNECTION WITH MAINTENANCE,
INCLUDING, WITHOUT LIMITATION, LOSS OF ANTICIPATED PROFITS OR LOSS
RESULTING FROM BUSINESS DISRUPTION, EVEN IF MILLENNIUM DYNAMICS, INC. HAS
BEEN ADVISED TO THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE
LIABILITY OF MILLENNIUM DYNAMICS, INC. FOR DAMAGES ARISING OUT OF OR IN
CONNECTION WITH MAINTENANCE (UNDER ANY CONTRACT, TORT OR OTHER THEORY)
EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY MILLENNIUM DYNAMICS, INC.
FROM THE CUSTOMER IN CONNECTION WITH MAINTENANCE.
9.5 Unsupported Programs. -- If the Software Schedule indicates that a
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particular program is unsupported, Millennium Dynamics, Inc. shall have no
obligation to correct errors in such program. If Millennium Dynamics, Inc.
no longer wishes to support a program which is listed on the Software
Schedule, then Millennium Dynamics, Inc. shall have the right to amend the
Software Schedule to indicate that such program is unsupported in
accordance with the following procedure:
9.5.1 Millennium Dynamics, Inc. shall provide written notice to the
Customer that the program will cease to be supported on a
specified date (the "Cutoff Date") which must be at least six (6)
months in the future;
9.5.2 Until after the Cutoff Date, Millennium Dynamics, Inc. shall
continue to support such program and the Customer shall continue
to pay any fee(s) specified on the Software Schedule for such
program; and
9.5.3 On and after the Cutoff Date, the Software Schedule shall be
amended to indicate that such program is unsupported. Millennium
Dynamics, Inc. shall have no further obligation to correct errors
in the Program, the warranty contained in subpart (ii) of Section
8.3 of this Agreement shall no longer be effective with respect
to such program, and the Customer shall have the right to receive
a copy of the source code for such program as provided in Section
9.4 of this Agreement.
9.6 Source Code. -- For any program listed on the Software Schedule, if
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Millennium Dynamics, Inc. fails to fulfill its obligations under Section
8.5 of this Agreement or if such program is designated as unsupported on
the Software Schedule, then the Customer shall have the right to receive
upon demand a copy of the source code for such program subject to the
following terms and conditions:
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9.6.1 The source code for such program shall be deemed to be
Confidential Information of Millennium Dynamics, Inc. and shall
be subject to the terms and provisions of the Agreement which
govern Confidential Information;
9.6.2 The Customer shall have a nonexclusive right to use the source
code version of such program for the limited purpose of
maintaining the object code version of such program so that it
can be used by the Customer at the designated sites and on the
designated CPU(s) listed on the Software Schedule.
9.6.3 The source code for such program shall be deemed to be Software
within the meaning of this Agreement.
9.7 Source Code Escrow.
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Millennium Dynamics, Inc. will maintain a copy of the source code for the
Software in escrow for the benefit of the Customer and all other customers of
Millennium Dynamics, Inc. with Star Bank N.A., 000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxx 00000. Millennium Dynamics, Inc. will pay all fees associated with such
source code escrow.
10. INSTALLATION.
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Millennium Dynamics, Inc.'s standard initial installation shall be no more than
delivery of a copy of the licensed programs to the designated site. If the
Customer requests that Millennium Dynamics, Inc. perform more extensive
installation procedures, then the Customer shall pay Millennium Dynamics, Inc.
for such services at Millennium Dynamics, Inc.'s then current consulting rates
and shall reimburse Millennium Dynamics, Inc. for reasonable travel and living
expenses.
11. MANUALS.
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11.1 No Charge. -- Millennium Dynamics, Inc. will provide to the Customer, at no
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additional cost to the Customer, the number of manuals for each program as
indicated on the Software Schedule.
11.2 Additional Charge. -- The Customer shall pay all shipping charges for
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copies of manuals and other documentation which is sent to the Customer by
Millennium Dynamics, Inc.
12. SPECIAL LICENSES
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If Millennium Dynamics, Inc. provides any program to the Customer which is not
listed on the Software Schedule, then (a) such program shall be deemed
Confidential Information and (b) the Customer shall have no right to use, copy
or disclose such program unless the Customer is granted such rights pursuant to
some other license or sublicense agreement between the Customer and Millennium
Dynamics, Inc. or a third party specified by Millennium Dynamics, Inc. (a
"Special License"). If Millennium Dynamics, Inc. provides any such software to
the Customer pursuant to a Special License, then the Customer shall be bound by
the terms and conditions of such Special License.
13. EDUCATION.
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13.1 Training Classes. -- The Customer will be entitled to have two (2)
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individuals of its selection attend a two day training class held in
Cincinnati, Ohio at the offices of Millennium Dynamics, Inc. There will be
no additional cost to the Customer for attendance of its designees at this
class. Travel and other expenses for the attendance of these individuals
are the responsibility of the Customer.
13.2 Telephone Support -- At no extra cost, Millennium Dynamics, Inc. will
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provide reasonable user support for the Customer's employees by telephone
in connection with the Customer's use of information, products and services
provided to the Customer by Millennium Dynamics, Inc. pursuant to this
Agreement. Such support shall be limited to answering questions about the
use and/or operation of such information, products and/or services.
Millennium Dynamics, Inc. shall have no obligation pursuant to this Section
to perform any design or consulting services for the Customer.
14. TERMINATION.
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14.1 Procedure. -- This Agreement may be terminated as follows:
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14.1.1 Breach. -- Except as otherwise provided, in the event of breach
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of any of the terms or conditions of this Agreement, the non-
defaulting party may terminate this Agreement upon sixty (60)
days prior written notice to the defaulting party specifying with
particularity the breach. If the defaulting party shall, within
such sixty (60) days, cure the breach complained of and advise
the non-defaulting party of such cure, this Agreement shall
continue in full force and effect as if the notice of termination
had not been issued; otherwise, this Agreement shall terminate at
the end of such sixty (60) day period.
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14.1.2 Insolvency. -- In the event that the Customer becomes insolvent
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or voluntarily or involuntarily bankrupt or is unable to meet its
obligations when they become due or if a receiver or other
liquidating officer is appointed for substantially all of the
assets or business of the Customer or if the Customer makes an
assignment for the benefit of creditors, Millennium Dynamics,
Inc. may immediately terminate this Agreement by notice to the
Customer.
14.1.3 Mutual Agreement. -- This Agreement may be terminated by the
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mutual agreement of the parties. The understanding of the parties
must be in writing and signed by both parties.
14.2 Effects of Termination. -- The following provisions shall apply in the
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event this Agreement expires or is terminated for any reason whatsoever:
14.2.1 Return of Confidential Information. -- The Customer shall return
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promptly or destroy all copies (in whatever form and whether full
or partial) of all Confidential Information which is in the
Customer's possession or under its control. Within thirty (30)
days after termination, the Customer shall provide written
confirmation to Millennium Dynamics, Inc. that all copies have
not been returned or have been destroyed. The Customer shall also
implement appropriate measures to safeguard the confidentiality
of any Confidential Information which, by virtue of its
intangibility, cannot be physically returned or destroyed.
14.2.2 Payments. -- The Customer shall remain obligated to pay all
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amounts already owed to Millennium Dynamics, Inc. hereunder. All
amounts due to Millennium Dynamics, Inc. hereunder shall become
immediately due and payable.
14.2.3 Provisions Which Survive. -- Millennium Dynamics, Inc.'s rights
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and the Customer's obligations pursuant to Sections 6
(Confidentiality) and 18 (Export) shall survive the termination
and/or expiration of this Agreement.
15. INDEMNIFICATION BY CUSTOMER.
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The Customer agrees to indemnify and hold harmless Millennium Dynamics, Inc.,
its subsidiaries and affiliates, and the officers, directors, employees, and
agents of any of them from all costs, expenses (including reasonable attorneys'
fees), losses, liabilities, damages and settlements arising out of or in
connection with any claim or suit based on allegations which, if true, would
constitute a breach of this Agreement.
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15.1 Notice. -- Millennium Dynamics, Inc. shall as soon as practicable, notify
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the Customer in writing of any claim or suit which might give rise to a
claim for indemnification by the Customer hereunder.
15.2 Defense. -- In the event of such claim or suit, the Customer will employ
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counsel for the defense thereof, shall file proper pleadings in said suit
within the time required by law, and shall keep Millennium Dynamics, Inc.
informed of all developments. If the suit is brought to trial, the
Customer shall conduct the defense thereof. Millennium Dynamics, Inc., at
its own election and expense, shall always have the right to employ its own
counsel and may monitor the Customer's activities. In such event, the
Customer and Millennium Dynamics, Inc. shall cooperate fully.
16. ASSIGNMENT.
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This Agreement and the Customer's rights hereunder may not and cannot be
assigned, sublicensed, sold, mortgaged, pledged or otherwise transferred by the
Customer without Millennium Dynamics, Inc.'s prior written consent.
17. EXPORT.
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Regardless of any disclosure made by the Customer to Millennium Dynamics, Inc.
of an ultimate destination of any product, service, information or Confidential
Information provided in connection with this Agreement ("the Products"), the
Customer will not export or re-export, either directly or indirectly, any the
Products or any system incorporating the Products, without first obtaining an
appropriate license or authorization therefor from the United States government,
if required by United States law.
The Customer will not, without first obtaining an appropriate license or
authorization therefor from the United States government, if required by United
States law, directly or indirectly, export, re-export, transmit or disclose to
anyone or use, act upon, or provide services which involve the use of, any
information of any kind (including, without limitation, any Confidential
Information) (a) which can be used, or adopted for use, in the design,
production, manufacturing, utilization or reconstruction of articles or
materials and (b) which was disclosed to the Customer by Millennium Dynamics,
Inc. or relates to any Products, this Agreement, or any transaction hereunder.
The Customer shall notify Millennium Dynamics, Inc. if the Customer knows,
believes or has any reason to suspect that any of the Products are being or have
been exported or re-exported without proper licenses or authorizations.
18. ADVERTISING.
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The Customer hereby authorizes Millennium Dynamics, Inc. to use the Customer's
name as a reference during verbal conversations concerning the Software. Any
other advertising involving the Customers's name will require the prior written
consent of the Customer. The Customer shall not use the name and/or logo of
Millennium Dynamics, Inc., without obtaining the prior written consent of
Millennium Dynamics, Inc.
19. INJUNCTIONS.
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The Customer agrees that because any unauthorized use or disclosure of
Confidential Information could cause Millennium Dynamics, Inc. irreparable
damage, Millennium Dynamics, Inc. is entitled to obtain injunctive relief in
the event of any unauthorized use or disclosure of Confidential Information.
20. ENTIRE AGREEMENT.
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This Agreement (including the associated schedules, appendices, product
description manuals and addenda) constitute the entire agreement between
Millennium Dynamics, Inc. and the Customer relating to the subject matter hereof
and this Agreement supersedes all prior negotiations, agreements and
understandings between them relating to the subject matter hereof and no
modifications and/or additions to this Agreement shall be binding on either
party unless in writing and signed by the party against whom enforcement is
sought.
21. WAIVER.
-------
No waiver of any provision of this Agreement shall be effective unless made in
writing. No waiver of any breach of any provision of this Agreement shall
constitute a waiver of any subsequent breach of the same or any other provision
of this Agreement. Failure to enforce any contract term shall not be deemed a
waiver of future enforcement of that or any other term.
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22. NOTICE.
------
All notices permitted or required under this Agreement shall be directed to the
address set forth on the first page hereof or to such address as either party
may from time to time specify by written notice to the other. Any notice shall
be transmitted in one or more of the following ways:
22.1 In writing, delivered in person, effective upon delivery;
22.2 Mailed by first class, registered or certified mail, return receipt
requested, postage prepaid, effective 5 days after mailing;
22.3 Sent by telex or telecopy, or other digital telecommunications medium
providing a verifiable transcript, and original sent by first class mail,
postage prepaid, effective upon receipt.
22.4 Sent by overnight mail, billed to the sender, effective the next day.
23. FORCE MAJEURE.
--------------
Neither party shall not be held liable to the other for failure to perform any
of its obligations hereunder where such performance is prevented or interfered
with by riots, wars or hostilities between any nations, Acts of God, fires,
storms, floods, earthquakes, strikes, labor disputes, shortages or curtailments
of raw materials, labor, power or other utility services, any government
restrictions, and other similar or dissimilar contingencies beyond the
reasonable control of the non-participating party.
24. GOVERNING LAW AND VENUE.
------------------------
This Agreement shall be deemed to have been executed in Cincinnati, Ohio
U.S.A., and shall be governed by and construed in accordance with the laws of
the United States and the laws of the State of Ohio, U.S.A. The Customer
hereby consents generally to the jurisdiction of the courts of the State of
Ohio and of any United States federal court.
25. SEVERABILITY.
-------------
The provisions hereof are severable. If any provision of this Agreement is
invalid or unenforceable in any circumstances, then (i) in such circumstances
such provision shall be interpreted as though it provided for the maximum
permissible obligation or right, (ii) the application of such provision in any
other circumstances shall not be
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affected thereby, and (iii) the application of the remaining provisions hereof
shall not be affected thereby.
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26. CUMULATIVE REMEDIES.
-------------------
Except as otherwise provided herein, all rights and remedies conferred hereunder
shall be cumulative and may be exercised singularly or concurrently.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed and delivered by its duly authorized officers as of the day and year
first above written.
XXXXXXXX BRANDS INTERNATIONAL, INC. MILLENNIUM DYNAMICS, INC.
/s/ (Illegible) /s/ Xxxxxxx X. Xxxx
By: _______________________________ By: __________________________________
Xxxxxxx X. Xxxx
Name: _____________________________ Name: ________________________________
Assistant Secretary
Title: ____________________________ Title: _______________________________
10/25/96
Date: _____________________________ Date: ________________________________
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SOFTWARE SCHEDULE
-----------------
1. Software Programs.
-----------------
a. JCL/Proc Analyzer.
b. COBOL Copy Library Converter.
c. COBOL Program Converter.
d. Assembler Program Converter.
e. File and Transaction Converter.
f. Universal Text Scanner.
g. Bridge Utility.
2. Site Address.
-------------
000 Xxxx Xxxxx Xxxxxx, 00xx xxxxx
-----------------------------------------------------------------
Xxxxxxxxxx, Xxxx 00000
-----------------------------------------------------------------
3. Designated CPU(s) at site.
-------------------------
9672 R21
-----------------------------------------------------------------
Serial No. 000671
-----------------------------------------------------------------
Millennium Dynamics, Inc. acknowledges that the Customer has future plans
to acquire a new CPU on or before December 31, 1997. This new CPU may
involve an upgrade. Millennium Dynamics, Inc. hereby grants to the
Customer the authority to install the Software on any new CPU acquired
without any additional fees. This authority is granted so long as the
Software only operates on one CPU and the Customer notifies Millennium
Dynamics, Inc. of the new installation. Such notice by the Customer to
Millennium Dynamics, Inc. shall be made thirty (30) days before the change
is to occur. The Customer hereby acknowledges that in order to obtain a
new copy of the Software to be provided for the purpose of this
arrangement, the Customer must notify Millennium Dynamics, Inc. of its plan
within the time frame identified above and provide the necessary
information requested by Millennium Dynamics, Inc.
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4. License Fees.
------------
Initial License Fee No charge
Total Cost No charge
This License Fee includes the designated CPU(s) at the designated site.
Additional sites and CPU(s) will require an addendum to this Software
Schedule.
6. Maintenance Fees.
----------------
There is no annual maintenance fee for the software products identified on
this Software Schedule. All other services, including consulting services,
are to be incurred on a time and material basis.
7. Education.
---------
a. The License Fee includes two (2) attendees from the designated site for
a two (2) day training session in Cincinnati, Ohio.
b. The Customer may request on-site training which will consist of two (2)
days of training for ten (10) individuals at a cost of $5,000 plus all
travel and living expenses incurred in connection with the training at
the Customer's site.
8. Manuals
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The License Fee includes four (4) copies of installation/user manuals. The
Customer is not permitted to reproduce copies of the installation/user
manual, without the prior written permission of Millennium Dynamics, Inc.
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