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Exhibit 10.33
SOFTWARE LICENSE AGREEMENT
This Agreement is made as of this first day of June, 1993, by and between Key
Information Systems, Inc. (hereinafter referred to as "KIS"), a New York
corporation and XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc. (hereinafter referred to as
"Licensee"), a New York corporation.
WHEREAS, KIS is the developer, manufacturer and worldwide supplier of
proprietary software products; and
WHEREAS, KIS desires to grant to Licensee and Licensee desires to obtain from
KIS a perpetual license to use the software products described below, all upon
the terms and conditions herein set forth;
NOW THEREFORE, in consideration of eighty-eight thousand, eight hundred dollars
($88,800.00) paid in hand to KIS and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. GRANT OF LICENSE. KIS hereby grants to Licensee a perpetual, non-exclusive,
and royalty-free worldwide license to use (on any computer utilizing the
operating system for which the Product (as hereinafter defined) was intended but
not on other operating systems), edit, compile, copy, modify, and merge the
software programs described on the attached Schedule A (said programs being
hereinafter referred to individually as a "Product" and collectively as
"Products") subject to the terms and conditions herein set forth. For the
purposes of this Agreement the word "Product(s)" shall mean KIS' computer
program(s) in machine executable form and the manuals and other user
documentation related thereto (together with any updates, modifications, or
corrections to or source code for any of the foregoing made subject to this
Agreement pursuant to Sections 4 or 5 hereof). KIS has previously delivered to
Licensee a copy of the aforesaid computer program(s) in machine executable form
and hereby agrees to deliver to Licensee manuals and other user documentation
(including without limitation operator documentation) therefor no later than
March 31, 1994. Licensee acknowledges that by virtue of this Agreement, Licensee
acquires only a license in the Product(s) and does not acquire any rights of
ownership in the Product(s) except that Licensee shall own and shall have the
right to possess, use, compile, copy, modify and merge, all in accordance with
this Agreement, and retain the copies of the Products delivered by KIS. This
Agreement and the license granted pursuant hereto may not be assigned,
sublicensed, or otherwise transferred by Licensee without prior written consent
from KIS, except to a successor to the business of Licensee through purchase,
merger, reorganization, assignment or otherwise, and the Products may be used,
edited, compiled, copied, modified and merged only for the operation of
Licensee's (or any permitted
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successor's or assign's) business and the business of Licensee's subsidiaries
and may not be marketed by Licensee.
This grant of license shall not include any third party product which may be
required as an enabling technology to run KIS software, acquisition of such
product(s) to be the sole responsibility of Licensee.
2. TERM. This Agreement shall be effective as of the date hereinbefore set
forth, and shall remain in force permanently.
3. TAXES AND DUTIES. All local personal property, sales, use, excise taxes
and/or any taxes in lieu thereof by any government, governmental agency or
entity with respect to the Product(s) or its use, the license of the Product(s)
or this Agreement itself, except taxes based on the net income of KIS, are the
responsibility of the Licensee.
4. UPDATES. KIS agrees that the machine executable code and related user
documentation for all updates, modifications, and corrections to the Product(s),
or conversions of the Product(s) to new operative platforms, supplied to
Licensee in connection with the performance of "Services" under a Service
Agreement of even date herewith between KIS and Licensee (the "Service
Agreement"), insofar as the proprietary rights in and to such materials are
owned by KIS and not by Licensee pursuant to the terms and conditions of the
Service Agreement, shall become part of the Products licensed to Licensee under
this Agreement and shall thereafter be included in the definition of Products
for all purposes of this Agreement.
5. SOURCE CODE. The parties agree to execute and deliver to a third party
escrow agent reasonably acceptable to the parties (the "Escrow Agent"), within
thirty (30) days of their execution of this Agreement, an Escrow Agreement
substantially in the form of Exhibit A attached hereto (the "Escrow Agreement")
for the release of the source code for the Product(s) and applicable system
documentation pertaining thereto (together, the "Source Code") upon the terms
and conditions set forth in Section 2 of the Escrow Agreement.
Any copy of the Source Code released to Licensee by the Escrow Agent or for any
cause under the Escrow Agreement shall become part of Products licensed to
Licensee under this Agreement and shall thereafter be included in the definition
of Products for all purposes of this Agreement; provided, however, that such
Source Code may only be used by Licensee to maintain the Product(s) at its or
their then-current level of functionality (unless Licensee exercises its option
to purchase an additional license to the Source Code pursuant to the Option
Agreement between Licensee and KIS of even date herewith (the "Option
Agreement")).
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6. CONFIDENTIALITY. Licensee acknowledges that the Products constitute
proprietary information and trade secrets which are the property of KIS.
Licensee shall exercise reasonable precautions for the protection of trade
secrets and proprietary information to insure that KIS trade secrets and
proprietary information are not disclosed to third parties except to affiliates
or service providers of Licensee requiring access to such information in the
performance of services for Licensee.
7. PATENTS AND COPYRIGHTS. KIS agrees to indemnify, defend and hold harmless
Licensee, its officers, directors, employees, affiliates, agents, control
persons, persons, successors and assigns (collectively, the "Indemnified
Party"), from and against any claim asserted or suit or proceeding alleging that
all or any part of the product(s) infringes or misappropriates a patent,
trademark, copyright, trade secret or other intellectual property right of a
third party. The Indemnified Party will give KIS prompt written notice of, and
at KIS' sole expense, full and complete authority, information and assistance in
the defense of, such claim, suit or proceeding; provided that (a) no such claim,
suit or proceeding in which the Indemnified Party is named as a party may be
settled by KIS without the Indemnified Party's prior written consent; and (b)
KIS' selection of counsel must be reasonably satisfactory to the Indemnified
Party.
In addition, KIS shall, in the event any part of the Product(s) is held to
constitute an infringement or misappropriation, use its best efforts to either
procure for Licensee the right to continue using that item under the terms set
forth in this Agreement, or replace or modify that item so that it becomes
non-infringing and not a misappropriation, provided that such replacement or
modified item has the same functional capabilities and performance
characteristics as the replaced or modified item.
The foregoing two paragraphs state the entire liability and obligation of KIS
with respect to infringement or misappropriation of any patent, trademark,
copyright, trade secret or other intellectual property right by all or any part
of the Product(s).
Notwithstanding the foregoing, KIS shall not be liable for any claim of patent,
trademark, or copyright infringement to the extent that such claim is based on
the use or combination of the Product(s) with any other software not supplied to
Licensee by KIS, Licensee's modification of the Product(s), or Licensee's use of
other than the latest available release of the Product(s) supplied to Licensee
by KIS.
8. WARRANTIES. KIS hereby represents and warrants:
(a) That it owns, free and clear of all liens, claims, and encumbrances
which would interfere with or affect the license granted to Licensee hereby, the
proprietary rights in and has the right to license (including without limitation
the license granted
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to Licensee hereby) and distribute any Product or other software programs which
it markets.
(b) That Schedule A represents a complete and accurate listing of all
KIS software utilized by Licensee in the conduct of its business as of the date
of this Agreement.
(c) That when the Product(s) is delivered and installed it (they) will
operate on the computer(s) and operating system(s) as specified on Schedule A in
accordance with the specifications set forth on Schedule B attached hereto.
(d) That to KIS' knowledge and belief, no Product contains or will
contain any virus or any timer, clock, counter or other limiting design or
routine which causes it to become erased, inoperable, or otherwise incapable of
being used in the manner for which it is designed and licensed, whether
triggered by a certain number of uses or copies, a lapse of a certain period of
time, or the occurrence or lapse of any similar trigger factor including its
installation on or removal to a central processing unit with a different serial
number, model number, or other identification different from that on the central
processing unit at Licensee's premises, and that any such timers, clocks,
counters or other limiting designs or routines which are discovered will be
immediately removed or remedied at KIS' expense.
(e) That KIS is a corporation duly organized, validly existing and in
good standing under the laws of the State of New York.
(f) That KIS has full power and authority (including full corporate
power and authority) to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid and legally binding
obligation of KIS, enforceable in accordance with its terms and conditions.
(g) That the documentation for the Product(s) to be delivered to
Licensee pursuant to Section 1 shall contain an accurate and complete
description of the programs included in the Product(s) and an accurate and
complete explanation of the use thereof, and will be sufficient to allow
Licensee to conduct the day-to-day operation of said programs and such
documentation shall meet or exceed in quality and completeness the standard in
the industry for documentation of similar software programs intended for very
limited distribution.
LICENSEE HEREBY EXPRESSLY AGREES AND ACKNOWLEDGES THAT THE FOREGOING WARRANTIES,
TOGETHER WITH THE WARRANTIES SET FORTH IN THE SERVICE AGREEMENT, THE ESCROW
AGREEMENT, AND THE OPTION AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES
EXPRESSED OR IMPLIED INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE AND ARE
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THE ONLY WARRANTIES MADE BY KIS IN CONNECTION WITH THE PRODUCT(S) AND THE
INSTALLATION ASSISTANCE, IF ANY, RENDERED BY KIS.
Licensee agrees that no affirmation, representation or warranty by any
agent, employee, or representative of KIS with respect to the Product(s) shall
bind KIS or be enforceable by Licensee unless it is specifically included within
this Agreement, the Service Agreement, the Escrow Agreement or the Option
Agreement.
9. LIMITATION OF LIABILITY. LICENSEE AND KIS AGREE THAT NEITHER LICENSEE
NOR KISS SHALL BE LIABLE FOR ANY LOST PROFITS, SPECIAL, CONSEQUENTIAL, OR
INCIDENTAL DAMAGES FOR BREACH OF THIS AGREEMENT (EXCEPT FOR CLAIMS FOR WHICH
LICENSEE IS INDEMNIFIED BY KIS PURSUANT TO SECTION 7) EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THIS LIMITATION SHALL NOT
APPLY WITH RESPECT TO ANY INTENTIONAL AND MALICIOUS BREACH OF THIS AGREEMENT BY
EITHER PARTY.
10. SEVERABILITY. In the event that any provision of this Agreement or
application hereof to any party or in any circumstances shall be determined to
be invalid, unlawful, or unenforceable to any extent, the remainder of this
Agreement, and the application of any provision to parties or circumstances
other than those as to which it is determined to be unlawful, invalid or
enforceable, shall not be affected thereby, and each remaining provision of this
Agreement shall continue to be valid and may be enforced to the fullest extent
permitted by law.
11. CONSTRUCTION. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the choice
of law rules thereof.
12. NOTICES. Any notice, request demand or other communication provided
for or permitted hereunder shall be in writing and may be personally delivered,
or sent by certified mail return receipt requested, or by overnight courier, to
the following address:
To KIS: Key Information Systems, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxx, President
Fax Number: (000) 000-0000
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To MCM: XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc.
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx, President
Fax Number: (000) 000-0000
or such other address as a party may give the other parties by written notice as
provided herein. Any notice, request, demand or other communication shall be
deemed to have been given when received.
13. GENERAL. (a) This Agreement, together with the Service Agreement, the
Option Agreement, and the Escrow Agreement, contains the entire contract between
the parties, and supersedes all previous communications, representations, or
agreements whether written or oral, with respect to the subject matter hereof
and thereof, and the parties represent to each other that they have not relied
on any such communication.
(b) This Agreement may not be waived, altered or modified
except by written agreement signed by both of the parties.
(c) In all references herein to any parties, persons,
entities, or corporations, the use of any particular gender or the plural or
singular number is intended to include the appropriate gender or number as the
text of the foregoing instrument may require.
(d) This Agreement shall be binding upon and inure to the
benefit of the parties and their permitted successors and assigns.
14. EXECUTION. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one agreement.
15. SURVIVAL. This Agreement shall survive the transfer of any proprietary
rights in the Product(s) to any third party and, prior to any such transfer, KIS
agrees to notify said third party of this Agreement and obtain from such party a
written consent to the license granted hereby. Any transfer of a proprietary
right in the Product(s) in violation of this Section 15 shall be null and void
ab initio.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
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KEY INFORMATION SYSTEMS, INC, XXXXXXXX, XXXXXXXX & XXXXXX,
a New York corporation INC., a New York Corporation
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Authorized Signature Authorized Signature
Name: Xxxxxx X. Xxxx Name: Xxxxxxx X. Xxxxxxx
Title: President Title: President
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SCHEDULE A
PRODUCT SCHEDULE
KISNET-2000, a product architecture which spans multiple processing platforms
and incorporates:
KISNET-C, which denotes the software system(s) developed to support and
facilitate the contribution of data to information vendors; with
outbound option for Telerate, Xxxxxx-Xxxxxx, ADP & Quotron and others
(as added), and input options for
Wang Word Processing Document
SIMTEL local and remote,
SIMTEL Express, & MCM Data Base
MENU-SCRIPT, FILE-SCRIPT, SELF-SCRIPT,
HELP-SCRIPT, FAX-SCRIPT (FOR
XXXXXX BOX ONLY), DOCU-MATE (and others, as added)
KISNET-D, which denotes the software system(s) developed to receive and
display information derived from a variety of sources, including
without limitation Telerate, Xxxxxx-Xxxxxx, PR-Newswire, and other
sources.
(hereinafter, together with any additional, successor or substitute
programs performing essentially similar functions, the "Product(s)"),
for the Wang-VS operating system or any other operating system for
which the programs are adapted.
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SCHEDULE B
PRODUCT OPERATION SPECIFICATIONS
KISNET-C [Contribution/Outbound].
KISNET-C is the multi-vendor contribution system used by MCM to update
many information vendors from one centralized platform. Whenever a page is
updated on the central platform using KISNET-C, the KISNET-C system transmits
the updated text to as many of the following as appropriate performing a number
of format conversions automatically. Terminal editing capabilities simulate the
capabilities of a Telerate terminal for most functions.
Vendors:
Telerate
Xxxxxx-Xxxxxx
Direct Feeds via Xxxxxx-Xxxxxx
Quotron
ADP
FAX
Reuters (IDN)
Others (as added)
KISNET-D [Distribution/inbound].
KISNET-D automatically processes information feeds from multiple
vendors and resolves them to a set of data structures. The feeds include:
TDPF (Telerate)
KRDF (Knight Ridder)
PR NEWS WIRE
Others (As added)
KISNET-D organizes headlines from multiple sources into one
chronologically ordered display. The analyst can select a story to view from one
common screen without regard to the origin of the story.
KISNET-D simulates most of the functionality of a Telerate or
Xxxxxx-Xxxxxx terminal (or others, as added). As authorized user can alternate
among his choice of vendor terminal simulations (currently Telerate & Knight
Ridder). He can view any authorized page from either service when in the
simulation mode for that service on KISNET-D. It is also possible to retrieve
Telerate pages (or others, as added) programmatically on demand and store them
in a data base.
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KISNET-D also provides a single-key link to KISNET-C thereby providing the users
the ability to edit and transmit their pages.
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Exhibit A
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Escrow Agreement") dated as of ,
1993 by and among Key Information Systems, Inc. ("KIS"), XxXxxxxx, Xxxxxxxx &
Xxxxxx, Inc. ("MCM"), and (the "Escrow Agent").
WHEREAS, MCM has entered into a Software License Agreement with KIS dated as of
June 1, 1993 (the "Software License Agreement") whereby MCM has licensed from
KIS certain computer software described in Schedule A attached hereto (the
"Software");
WHEREAS, KIS desires not to disclose the source code (such source code, together
with the applicable system documentation therefor (which system documentation
shall include, without limitation, such system documentation as is reasonably
available to KIS at the time of the initial deposit of the Source Code pursuant
to Section 1 of this Agreement) and all updates, modifications or corrections to
any of the foregoing, is hereinafter collectively referred to as the "Source
Code") for the Software;
WHEREAS, KIS agrees with MCM that upon certain events MCM shall be able to
obtain the Source Code, and KIS agrees to deliver the Source Code to the Escrow
Agent;
NOW THEREFORE, in consideration of the agreements herein contained, KIS, MCM and
the Escrow Agent agree as follows:
1. DEPOSIT OF SOURCE CODE
Within thirty (30) days of the date of this Agreement, KIS agrees to
deliver to the Escrow Agent, and the Escrow Agent agrees to accept from
KIS, one good working order copy of the Source Code. Within thirty (30)
days after any material revision or update to the Software and in any
event no less frequently than once every six (6) months after the
initial Source Code deposit, KIS agrees to deliver to the Escrow Agent,
and Escrow Agent agrees to accept from KIS, an updated copy of the
Source Code including all modifications or corrections to the Source
Code created by KIS in the performance of services for MCM pursuant to
a Service Agreement between MCM and KIS dated as of June 1, 1993 (the
"Service Agreement"). All deliveries of Source Code to the Escrow Agent
shall be made in the form of magnetic media (except that system
documentation shall be in printed form), in a format mutually (and
reasonably) agreed to by MCM and KIS. KIS will provide the Escrow Agent
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and MCM an inventory listing of the Source Code upon each deposit of an
item with the Escrow Agent. The Escrow Agent will acknowledge to KIS
and MCM receipt of the items listed on such inventory and shall, upon
each such deposit, return to KIS all copies of the Source Code
superseded by such deposit except the two most recent copies preceding
the copy deposited. The Source Code held by the Escrow Agent shall
remain the exclusive property of KIS, and the Escrow Agent shall not
use the Source Code or disclose the same to any third party except as
specifically provided for herein; provided, however, that, subject to
the rights reserved for KIS in the Software License Agreement, and
except for superseded copies of the Source Code returned to KIS
pursuant to this Section 1, all right, title and interest in and to any
copies of the Source Code delivered to the Escrow Agent pursuant to
this Agreement shall pass to and vest in the Escrow Agent for the
purposes described herein upon delivery and shall pass to and vest in
MCM immediately and automatically upon delivery thereof to MCM pursuant
to Section 2 without the need for any further action, instrument or
payment. The Escrow Agent will hold the Source Code in safekeeping
unless and until it is authorized to release the Source Code pursuant
to Section 2 hereof.
2. RELEASE OF SOURCE CODE
2.1 MCM may, by written notice (the "Claim Notice") to the Escrow
Agent, assert that it is entitled to receive a copy of the
Source Code because one of the following events shall have
occurred: (a) KIS or any successor or assign permitted by the
Service Agreement is unable, unwilling or unavailable to
provide support and maintenance services for the Software
under substantially similar terms and conditions as those with
respect to Software maintenance (but without regard to other
Services) set forth in the Service Agreement (except for
increases in the fee payable for maintenance services pursuant
to Schedule D of the Service Agreement commensurate with
increases in the consumer price index during the relevant time
period); (b) KIS (or any permitted successor or assign then
providing Services under the Service Agreement) has become
insolvent, has made a general assignment for the benefit of
creditors, has suffered or permitted the appointment of a
receiver for its business or assets, has become the subject of
any bankruptcy or insolvency proceeding (not commenced by MCM)
which has not been dismissed or stayed within thirty (30) days
of the commencement of such proceeding, or has wound up or
liquidated; or (c) MCM has terminated the Service Agreement
pursuant to Section 19(b)(i) thereof. The Claim Notice shall
specify which of the foregoing events the License asserts has
occurred to entitle the Licensee to receive the Source Code.
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2.2 No later than three (3) business days after receipt by the
Escrow Agent of a Claim Notice, the Escrow Agent shall give
notice thereof and deliver a copy of such Claim Notice to KIS.
KIS shall have seven (7) days after its receipt of the copy of
a Claim Notice to give notice to Escrow Agent that KIS
disputes the accuracy of the Claim Notice. In the event KIS
does not give notice within said seven (7) day period to the
Escrow Agent that it disputes the accuracy of the Claim
Notice, the Escrow Agent shall promptly deliver a copy of all
of the Source Code then held by it to MCM. However, in the
event KIS does give notice to the Escrow Agreement within said
seven (7) day time period that it does dispute the accuracy of
the Claim Notice, the Escrow Agent shall immediately notify
MCM of such fact and MCM and KIS shall attempt in good faith
to agree upon their respective rights to the Source Code. If
MCM and KIS do so agree, a memorandum setting forth such
agreement shall be prepared and signed by both MCM and KIS and
delivered to the Escrow Agent. The Escrow Agent shall be
entitled to rely on any such memorandum and distribute the
Source Code in accordance with the terms thereof. If no such
agreement can be reached within five (5) business days after
delivery of such written objection, either MCM or KIS may
demand arbitration of the matter; in such event, MCM and KIS
shall each select one disinterested arbitrator from a list
submitted by the American Arbitration Association and the two
selected shall select a third arbitrator from the list. All
arbitration hearings shall be conducted in New York, New York
and the arbitration panel shall provide the parties with a
detailed written statement of the panel's findings of fact and
conclusions of law respecting its award. The arbitration award
shall be binding and conclusive upon MCM and KIS and the
Escrow Agent shall be entitled to act in accordance with such
decision. Any such arbitration shall be under the then current
Commercial Arbitration Rules of the American Arbitration
Association. The arbitrators shall be instructed that time is
of the essence, and shall agree to use their best efforts to
make a decision within twenty (20) days of their appointment.
The parties agree to expedite the arbitration by making all
relevant evidence and statements of position promptly. Any
unreasonable delay in presenting evidence or arguments of a
party will justify the arbitrators in proceeding without such
evidence and arguments. Each party to an arbitration shall pay
its own expenses. The fee of the arbitrator and the
administrative fee of the American Arbitration Association
shall be paid one-half (1/2) by each of MCM and KIS.
2.3 The Escrow Agent shall deliver the Source Code to KIS or MCM
at any time upon the joint written instructions of KIS and
MCM.
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2.4 Upon the delivery by the Escrow Agent of the Source Code to
KIS or to MCM in accordance herewith, the Escrow Agent shall
be discharged of all responsibility for any further action
hereunder and the obligations of the Escrow Agent created
hereby shall terminate.
3. PAYMENT TO ESCROW AGENT
The Escrow Agent shall receive from MCM a fee in the amount agreed to
from time to time by the Escrow Agent and MCM and reimbursement of all
reasonable out-of-pocket expenses incurred by Escrow Agent in the
performance of its duties hereunder. MCM shall provide KIS with
duplicate copies of all invoices received by MCM from the Escrow Agent.
4. WARRANTIES
KIS hereby represents and warrants:
(a) That it owns all proprietary rights in the Source Code and has
the right to deposit it with the Escrow Agent, free and clear
of all liens, claims and encumbrances which would interfere
with or affect any rights granted by KIS in the copies of the
Source Code to be deposited with Escrow Agent or released to
MCM hereunder.
(b) That the Source Code deposited with the Escrow Agent pursuant
to this Agreement conforms to the updated object code provided
to MCM pursuant to the Service Agreement.
(c) That the Source Code is operational, and does not contain
computer instructions or code intended to impede, interfere
with or limit the day-to-day operation and maintenance of the
Software by a third-party computer programmer.
(d) That all system documentation delivered to the Escrow Agent as
part of the Source Code following the conversion of the Source
Code for its operation on the VAX or Sun platform shall meet
or exceed in quality and completeness the standard in the
industry for system documentation of similar software programs
intended for very limited distribution.
The warranties set forth herein shall survive the termination of this
Escrow Agreement for any reason whatsoever.
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5. TERMINATION
This Escrow Agreement shall terminate on the delivery of the Source
Code in accordance with Section 2 hereof. The Escrow Agent may
terminate this Escrow Agreement by sixty (60) days' written notice to
KIS and MCM, and upon the effective date of any such termination shall
deliver the Source Code only to a successor Escrow Agent designated by
MCM and consented to by KIS, such consent to not be unreasonably
withheld or delayed, or as otherwise jointly directed in writing by MCM
and KIS.
6. LIMITATION ON ESCROW AGENT'S RESPONSIBILITY AND LIABILITY
6.1 The Escrow Agent shall not examine or inspect the Source Code.
The Escrow Agent's obligation for safekeeping shall be limited
to providing the same degree of care for the Source Code as it
maintains for its valuable information and property and that
of its customers stored in the form of magnetic media at the
same location. However, KIS and MCM agree and acknowledge that
the Escrow Agent shall not be responsible for any loss or
damage to the Source Code due to changes in atmospheric
conditions (including, but not limited to, failure of the air
condition system), unless such changes are proximately caused
by the gross negligence or willful misconduct of the Escrow
Agent.
6.2 The Escrow Agent shall be protected, in connection with the
carrying out of its duties hereunder, in acting upon any
written notice, request, waiver, consent, receipt or other
paper or document delivered to the Escrow Agent.
6.3 In no event shall the Escrow Agent be liable for any act or
failure to act under the provisions of this Escrow Agreement
except when its acts are the result of its gross negligence or
malfeasance. The Escrow Agent shall have no duties except
those which are expressly set forth herein, and it shall not
be bound by any waiver, modification, amendment, termination,
or rescission of this Escrow Agreement unless in writing
signed by KIS and MCM and if the Escrow Agent's duties are
affected, unless it shall have given its prior written consent
thereto.
6.4 KIS and MCM hereby jointly and severally indemnify the Escrow
Agent against any loss, liability, cost, expense, or damage
(other than any caused by the gross negligence or willful
misconduct of the Escrow Agent), including reasonable costs of
litigation and counsel fees, arising from and in connection
with the performance of its duties under this Agreement.
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6.5 The Escrow Agent acts hereunder as depository only, and is not
responsible or liable in any manner for the sufficiency,
correctness, genuineness or validity of any instrument
delivered to it hereunder, or with respect to the form or
execution of the same.
6.6 The Escrow Agent may consult with legal counsel in the event
of any dispute or question as to the construction of any of
the provisions hereof or its duties hereunder, and it shall
incur no liability and shall be fully protected in acting in
accordance with the opinion and instructions of such counsel;
provided, however, that such counsel shall not have a conflict
of interest by virtue of representing MCM or KIS or their
respective officers, shareholders, employees, agents, assigns
or successors in interest in any form.
6.7 In the event of any disagreement between KIS and MCM or any
other person resulting in adverse claims and demands being
made in connection with or for any papers, money or property
involved herein, or affected hereby, the Escrow Agent shall be
entitled to refuse to comply with any demand or claim, as long
as such disagreement shall continue, and in so refusing to
make any delivery or other disposition of any money, papers or
property involved or affected hereby, the Escrow Agent shall
not be or become liable to KIS or MCM or any other person for
its refusal to comply with such conflicting or adverse demands
and the Escrow Agent shall be entitled to refuse and refrain
to act until:
(a) The rights of the adverse claimants shall have been
settled by final order, decree or judgment of the
arbitrators provided in Section 2.2 above, or shall
have been fully adjudicated in a court assuming and
having jurisdiction of the parties in such
disagreement, or
(b) All differences shall have been adjusted by agreement
and the Escrow Agent shall have been notified thereof
in writing, signed by all parties interested.
7. VERIFICATION OF SOURCE CODE
To verify the authenticity of any copy of the Source Code deposited
with the Escrow Agent pursuant to Section 1, MCM or an independent
third party selected by MCM and reasonably satisfactory to KIS may be
present, at MCM's option, during the creation and delivery to the
Escrow Agent of any or all copies of the Source Code to be deposited
with the Escrow Agent pursuant to Section 1 and may verify the copying
procedures and results to its reasonable satisfaction at such time;
provided, however, that, to enable MCM to exercise
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its option pursuant to this Section 7, KIS agrees to notify MCM no less
than three (3) business days in advance of KIS' intent to create a copy
of the Source Code for deposit with the Escrow Agent.
8. NOTICES
Any notice, request demand or other communication provided for or
permitted hereunder shall be in writing and may be personally
delivered, or sent by certified mail return receipt requested, or by
overnight courier, to the following address:
To KIS: Key Information Systems, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxx, President
Fax Number: (000) 000-0000
To Escrow Agent:
Fax Number:
To MCM: XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc.
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx, President
Fax Number: (000) 000-0000
or such other address as a party may give the other parties by written
notice as provided herein. Any notice, request, demand or other
communication shall be deemed to have been given when received.
9. SEVERABILITY
In the event that any provision of this Agreement or application hereof
to any party or in any circumstances shall be determined to be invalid,
unlawful, or unenforceable to any extent, the remainder of this
Agreement, and the application of any provision to parties or
circumstances other than those as to which it is determined to be
unlawful, invalid or enforceable, shall not be affected thereby, and
each remaining provision of this Agreement shall
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continue to be valid and may be enforced to the fullest extent
permitted by law.
10. CONSTRUCTION
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to the choice of law
rules thereof.
11. ASSIGNMENT
This Agreement may not be assigned or otherwise transferred by either
KIS or MCM without the prior written consent of the other; except that
either party may assign its rights and obligations under this Agreement
to any permitted assignee which succeeds to said party's right and
obligations under the Service Agreement and the Software License
Agreement in accordance with the terms thereof.
12. GENERAL
(a) This Agreement, together with the Software License Agreement, the
Service Agreement, and the Option Agreement, contains the entire
contract between the parties, and supersedes all previous
communications, representations, or agreements whether written or oral,
with respect to the subject matter hereof and thereof, and the parties
represent to each other that they have not relied on any such
communication.
(b) In all references herein to any parties, persons, entitles, or
corporations, the use of any particular gender or the plural or
singular number is intended to include the appropriate gender or number
as the text of the foregoing instrument may require.
(c) This Agreement shall be binding upon and inure to the benefit of
the parties and their permitted successors and assigns.
13. EXECUTION
This Agreement may be executed in counterparts, each of which shall be
deemed to be an original but all of which together shall constitute one
agreement.
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IN WITNESS WHEREOF, the parties have caused this Escrow Agreement to be executed
by their fully authorized representatives as of the day and year first above
written.
KEY INFORMATION SYSTEMS, INC.
By:_________________________________
Its:________________________________
XXXXXXXX, XXXXXXXX & XXXXXX, INC.
By:_________________________________
Its:________________________________
____________________________________
By:_________________________________
Its:________________________________
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