SOFTWARE LICENSE AGREEMENT
This Software License Agreement ("Agreement") is made in California on June 30,
1996, ("Effective date") between InTEXT Systems located at 000 Xxxxxx Xxxxxx,
Xxxxxx, XX 00000 (Licensor) and PaperClip Software, Inc. located at 0
Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, X.X. 00000 (Licensee) under which Licensor grants
Licensee certain rights in software technology developed or licensed by
Licensor ("the Technology"), to be used in Licensee's products ("the Products")
as defined in Exhibit A attached hereto and incorporated herein.
1. GRANT OF RIGHTS
1.1 Object Code License. Licensor hereby grants Licensee a worldwide,
nonexclusive license to use, copy, reproduce, translate, and distribute and
market binary copies of the Technology when integrated into the Product(s)
defined in Exhibit A. Licensee may distribute the Products under a shrinkwrap
license that enforces all the terms and conditions of this contract. Licensee
shall only license the binary copies of the Technology as part of the Products
and shall have no right to distribute such copies other than with the Products
as set forth in Exhibit A.
2. PAYMENT TERMS
2.1 Payments. In consideration of the above license grants, Licensee agrees to
make payments to Licensor as provided in Exhibit B hereto.
3. MAINTENANCE SERVICES, ENHANCEMENTS AND SUPPORT
3.1. Support of Licensee. Licensor agrees to provide Licensee, with the
technical support services as provided in Exhibit B.
3.2. End-User/Licensee Technical Support. Licensee shall make available to all
end-users of Technology the same level of service and support that it offers
for the Products. Licensee may, at its sole discretion, charge an end-user
support fee.
3.3. Travel. Should Licensee request Licensor employees or contractors to
travel to Licensee's facility, Licensee shall pay the reasonable incurred
expenses of such employees. All such travel shall be approved by Licensor and
Licensee in advance.
4. PAYMENTS AND ACCOUNTING
4.1. Payments. All payments and reporting shall be made as specified in Exhibit
B hereto.
4.2. Taxes. Licensee shall pay all license fees, taxes, including, but not
limited to, any applicable sales taxes and value added taxes, excises, customs
duties or charges levied or imposed on the Technology ordered except franchise
taxes or taxes based upon the net income of Licensor.
4.3. Inspection of Licensee's Records. Licensee agrees to maintain accurate
records covering all transactions related to the Technology. Licensor or an
independent Certified Public Accountant selected by Licensor shall have the
right, once per year and upon reasonable notice, to inspect the records of
Licensee upon which the reports are based and all records relating to payments
owed for the Technology copies distributed by Licensee. The costs of such audit
shall be born by Licensor unless the difference between license fees paid and
license fees due and owing is greater than five percent in which case Licensee
shall be responsible for such costs.
5. WARRANTIES, INDEMNIFICATION AND LIABILITY LIMITATIONS
5.1. Title. Licensor warrants that it has the legal right to grant the licenses
as set forth in this Agreement, and that such licenses do not infringe on any
third parties' proprietary or personal rights. Licensor further warrants that
there are no pending lawsuits concerning any aspect of the Technology.
5.2. Non-fringement. Should the Technology become, or in Licensor's opinion be
likely to become, the subject of any infringement claim or suit, Licensor
shall, at its option:
1 ) procure for Licensee the right to continue distributing the
Technology, as well as the right for Licensee and its customers to continue use
of the Technology, while maintaining its functionality; or,
2) settle the claim or suit.
5.3. DISCLAIMER. THE WARRANTIES PROVIDED BY LICENSOR HEREIN ARE THE ONLY
WARRANTIES PROVIDED BY LICENSOR WITH RESPECT TO THE TECHNOLOGY. SUCH WARRANTIES
ARE IN LIEU OF ALL OTHER WARRANTIES BY LICENSOR, EXPRESS OR IMPLIED, INCLUDING
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
WITH RESPECT TO THE TECHNOLOGY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING
WITHOUT LIMITATION LOSS OF PROFIT OR LOSS OR DESTRUCTION TO DATA.
5.4. Mutual Warranty. Licensor and Licensee shall make no warranty to any third
party, written or oral, on each others' behalf.
5.5. Indemnification by Licensee. Licensee agrees to indemnify and hold
harmless Licensor and its officers and employees from all costs, expenses
(including attorneys' fees), losses, liabilities, damages, and settlements that
Licensor may incur as a result of a suit or claim based on Licensee's
marketing, demonstration, and/or distribution of the Technology, if Licensee's
combination or modification of the Technology is such as to cause the
Technology to infringe on the proprietary rights of a third party where the
Technology provided to the Licensee as provided by Licensor absent such
combination or modification would not so infringe, provided that Licensor:
1 ) promptly notified Licensee of any such claim or suit in writing
and gives Licensee the opportunity to defend or settle any claim or suit at
Licensee's expense; and,
2) cooperates fully with Licensee in defending or settling any such
claim or suit. Licensee shall control the defense and settlement of any such
claim or suit including the selection of counsel. Licensee shall make no
settlement or other resolution of such claims which will require payments or
action by Licensor without Licensor's approval.
5.5.1 Indemnification by Licensor. Licensor shall indemnify Licensee against
any judgment by a court of competent jurisdiction based on a claim that
Licensor does not have sufficient right, title or interest in Technology to
enter in to this agreement, or that Technology infringes or violates any
Patent, Copyright, or trade secret, provided Licensee shall have given Licensor
prompt notice of any such claim and sole control of the defense. Licensor shall
have the right, at its option, either to obtain for Licensee the right to
continue use of the Technology, substitute other computer software which has
substantially the same operating capabilities and specifications as the
Technology, or modify Technology so that it has substantially the same
operating capabilities and specifications and is no longer infringing. In the
event that none of the above options are
reasonably available, Licensee's sole and exclusive remedy shall be to
terminate this Agreement and obtain a refund of the License Fee paid to
Licensor.
5.5.2 Licensor shall have no liability for any claim based on modification of
the Technology made by Licensee. Licensee warrants that any modifications made
by it shall not infringe any patents, copyright or other third party rights.
5.6. Remedies for Breach. [SECTION DELETED]
5.7 The maximum amount of Licensor's or Licensee's liability hereunder to any
and all causes of action relating to or arising out of section 5 shall be the
total payments received by Licensor from Licensee hereunder as of the date such
liability is finally determined by a court of law.
6. LICENSOR'S PROPRIETARY RIGHTS
6.1. Licensor's Title. Licensor retains title to the Technology, including the
code and the visual aspects of the Technology, translations, derivative works,
and to all copyrights and trademarks to those items. Licensor shall have no
ownership interest in products developed by Licensee.
All Right, Title and Interest to the Software Development Kits ("SDKs) shall
belong to Licensor.
6.2. Protection of Licensor's Copyrights and Trademarks. Licensee agrees that
it shall not represent in any manner that it has ownership of any of the
copyrights or trademarks of Licensor. Licensee also agrees that it shall
not at any time do or cause to be done any act contesting or in any way
impairing any part of Licensor's right, title and interest in any of
Licensor's copyrights or trademarks irrespective of whether such
copyrights or trademarks are registered in the jurisdiction in which
Licensee is located or does business.
7. TERM AND TERMINATION
7.1. Term. Unless earlier terminated pursuant to the provisions hereof, this
Agreement shall remain in effect and shall be renewable according to the terms
set forth in Exhibit B hereto.
7.2. Termination for Cause. Either party shall have the right to terminate this
Agreement upon a default by the other party on any of its material obligations
under this Agreement, unless within thirty (30) calendar days after written
notice of such default, such party remedies such default.
7.3. Return of Proprietary Materials. Upon the expiration or the termination of
this Agreement, for any reason, Licensee shall immediately discontinue use,
sale and distribution of the Technology.
7.4. Survival after Termination. All sublicensees to use the Technology which
are properly granted to end users under the shrinkwrap license attached shall
survive any termination of this Agreement. Licensor agrees to provide such end
users with support for the product at Licensor's then-current rates or, at
Licensor's sole option, to delegate such support responsibilities to an
appropriate third party. The confidentiality and warranty provisions of this
Agreement shall survive and continue to bind the parties for three (3) years
after termination.
8. CONFIDENTIALITY
8.1. Retention of Proprietary Rights in Confidential Information. Each party
may disclose to the other confidential information, including but without
limitation information concerning its inventions, know-how, trade secrets, as
may be necessary to further the performance of this Agreement. All such
confidential information disclosed hereunder, including the content of this
Agreement, shall remain the sole property of the party disclosing the same, and
the receiving party shall have no interest or rights with respect thereto
except as set forth herein.
8.2. Confidentiality. Each party agrees to preserve and protect the
confidentiality of any information provided pursuant to this Agreement, and all
documents and other materials containing such information, to the same extent
that it protects its own proprietary information. Neither party shall use
confidential information of the other party for its own benefit, or for the
benefit of a third party, except as authorized under the terms and conditions
of this Agreement.
9. TRAINING
9.1. Provisions for Training. Licensor agrees to provide training and support
in the use of the Technology to Licensee at Licensor's facilities at times,
frequencies and fees mutually acceptable to the parties.
10. REVISIONS
10.1. Advance Notice. Licensor will use reasonable efforts to give Licensee
ninety (90) days advance notice of the introduction of new revisions of the
Technology which are distributed by Licensor to similarly situated customers as
Licensee.
11. GENERAL
11.1. Governing Law. This Agreement shall be subject to and governed in all
respects, including issues of validity, interpretation, performance and
enforcement, by the statutes and laws of the State of California.
11.2. Entire Agreement. This Agreement, which shall be deemed to include the
Exhibits attached hereto and made a part hereof, constitutes the entire
Agreement and understanding between the parties and integrates all prior
discussions between them related to its subject matter. No modification of any
of the terms of this Agreement shall be valid unless in writing and signed by
an authorized representative of each party.
11.3. Assignment. This Agreement is assignable by Licensor. Licensee may assign
this Agreement if substantial control of Licensee is transferred as the result
of a merger, acquisition or similar event; provided, however, that such
assignment is not made to a direct competitor of Licensors who markets
Technology similar to Licensor's. This Agreement shall apply to and bind any
successor or assigns of the parties hereto.
11.4. Notice. Any notice or communication to be given pursuant to the terms of
this Agreement shall be sufficient if given in writing and personally
delivered, mailed by first class, certified or registered mail or sent as a
facsimile to the parties to the following addresses:
InTEXT Systems Corp. PaperClip Software Inc.
000 Xxxxxxxxxx Xxxxxx, Xxx. 000 0 Xxxxxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
XXX XXX
Fax: (000) 000-0000 Attn: Xxxxxxx Xxxxx
11.5. Force Majeure. Neither party shall be liable for any delay or failure to
comply with any terms of this Agreement due wholly or in part to Force Majeure
which may not be overcome by due diligence. Nothing in this paragraph shall
excuse Licensee from timely payment of any amounts due Licensor.
11.6. Survival of Obligations. The indemnification, payment and reporting
obligations for periods prior to termination in this Agreement shall survive
the expiration or termination of this Agreement.
11.7. Waiver. A waiver, expressed or implied, by either party of any default by
the other in the observance and performance of any of the conditions, covenants
or duties set forth herein shall not constitute or be construed as a waiver of
any subsequent or other default.
11.8. Independent Contractors. The parties acknowledge and agree that they are
dealing with each other hereunder as independent contractors. Neither Licensee
nor any of its affiliates, agents, employees or legal representatives are, nor
shall they be deemed affiliates, agents, employees or legal representatives of
Licensor. Nothing contained in this Agreement shall be interpreted as
constituting either party as the joint venture or partner of the other party or
as conferring upon either party the power of authority to bind the other party
in any transaction with third parties.
11.9. Disputes. The interpretation of or any dispute under this Agreement shall
be resolved in accordance with California law. The parties agree to submit to
non-binding mediation prior to taking legal action unless other legal rights or
remedies are negatively impacted.
Licensor Licensee
/s/ Xxxxx X. Xxxxx /s/ Xxxxxxx Xxxxx
------------------ -----------------
By: Xxxxx X. Xxxxx By: Xxxxxxx Xxxxx
Title: Controller Title: CEO
[INTEXT LETTERHEAD]
July 15, 1996
Xxxxxxx Xxxxx, CEO
PaperClip Software, Inc.
0 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Dear Xxxxxxx,
I have enclosed the signed original Software License Agreement for your files.
Regards,
/s/ Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
enclosure
