Exhibit 10.7
SOFTWARE LICENSE AGREEMENT Agreement No.
CCSSLA01
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AN AGREEMENT made the 16th day of November, 2000 between
TCS (CANADA) LIMITED, a Company incorporated under the laws of
Ontario, with registered offices located at 000 Xxxxxx Xxxxx, Xxxxx
000, Xxxxxxxx, Xxxxxxx, Xxxxxx, X0X 0X0, (hereinafter referred to as
the "Licensor") and
SECURITY BANCORP INC., a Company incorporated under the laws of
Alberta with registered offices at Bldg. F, Unit 3 - 0000 0xx Xxxxxx
X.X., Xxxxxxx, Xxxxxxx, Xxxxxx, X0X 0X0, (hereinafter referred to as
the "Licensee").
WHEREAS:
(a) the Licensor developed and markets certain TCS Point of Sale
Terminal Application products, each of which contains programs and
documentation; and
(b) the Licensee desires to acquire one or more licenses to use these
products. The TCS Point of Sale Terminal Applications licensed under
this agreement are specifically named in Schedule A.
NOW THEREFORE for good and valuable consideration, the receipt of which by each
is hereby acknowledged, Licensor and Licensee agree as follows:
1. Definitions
The following expressions shall, where the context so permits, have the meanings
hereby respectively assigned to them.
1.1 "Acceptance" is as defined in section 2.2.
1.2 "Agreement" means this Agreement concluded between the Licensee and
the Licensor named therein incorporating these Conditions and
includes:
(a) any alteration of the said Agreement which may be agreed in
writing between the Licensee and the Licensor, and
(b) all specifications or other documents which are prepared
pursuant to the said Agreement which may be agreed in writing
between the Licensee and the Licensor.
1.3 "Delivery" is completed when the Licensee initially receives
shipment of the System or if the Licensee has assigned the task of
installation to the Licensor, which said service is negotiated under
a separate agreement, then Delivery is completed when the Licensor
initially installs the System in an Eligible Point of Sale Terminal
owned by the Licensee.
SOFTWARE LICENSE AGREEMENT No. SBCSLA01
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Delivery is unique for each first installation of a unique TCS Point
of Sale Terminal Application Product licensed by the Licensee.
1.4 "Eligible Point of Sale Terminal" means one of the devices listed in
Schedule A, as eligible for the licensed product, and which is owned
or leased by the Licensee, or third party persons under contract or
agreement with the Licensee and operated by or for the Licensee.
1.5 "Licensee" means Security Bancorp Inc. and includes its successors
and assigns.
1.6 "Licensor" means TCS (Canada) Limited named in the Agreement who by
the Agreement grants license to use the Software License and
includes its successors and permitted assigns.
1.7 "Program/Software" means the set of instructions to be provided by
the Licensor necessary for the control, operation and performance of
the System.
1.8 "System" shall mean the software program components marketed by
Licensor known as the TCS Point of Sale Terminal Application
Products and any subsequent releases thereof and related
documentation. The System is unique for each Terminal Application.
The different Terminal Applications are specified in Schedule A.
1.9 "Term" shall mean a period of five (5) years from the date of
execution of this Agreement by both parties.
2. Grant of License
2.1 In consideration of the license fees to be paid by Licensee to
Licensor as hereinafter provided, the Licensor hereby grants to
Licensee a non-assignable, non-transferable and non-exclusive
perpetual license to use the System for itself, subject to the terms
and conditions specified herein. The Licensee shall not transfer,
sub-license or assign the System or this Agreement without prior
consent of the Licensor.
2.2 For a period of thirty (30) days after the Delivery Date (the
"Testing Period"), the Licensee shall be entitled to conduct such
tests, at its own cost, as it considers necessary to verify whether
the System functions in accordance with the specifications. The
Licensee will issue a notice signifying Acceptance of the System,
after completing tests to its satisfaction. If any deficiencies are
found, the Licensee will inform the Licensor of the deficiency in
detail, and in writing. The Licensor will have a minimum of
thirty-one (31) business days to provide corrections for the
discrepancy. Following receipt of the correction, the Licensee will
have a further twenty (20) days (the "Extended Testing Period") to
complete testing. If the Licensee does not notify the Licensor of
Acceptance or of deficiencies within the aforesaid periods, the
Licensee will be deemed to have issued notice of Acceptance on the
later of:
(a) the last day of the Testing Period.
(b) the last day of the Extended Testing Period following receipt
of a correction.
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Notwithstanding the foregoing, if the Licensee commences using the
System in the live operations of its business, the Licensee will be
deemed to have issued a notice signifying Acceptance of the System.
3. Use
3.1 Licensee may not use the System except in the carrying out of its
daily business by employees or agents of the Licensee, and has no
right to use, modify, make derivations of, convert, adopt, alter,
print, copy or display the System in whole or in part except as
expressly provided in this Agreement.
4. Payment of Fees
4.1 Licensee shall pay to the Licensor license fees in accordance with
Schedule A hereto on the terms as set out therein. The Licensee
shall pay, [CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION].
4.2 All amounts payable as a result of this agreement are due
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION]. The Licensee agrees to
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION].
5. Provision of Installation
5.1 Licensee is responsible for installation by using such services as
are defined by the Licensor for the purpose of installing the
System. Such services are negotiated under a separate agreement.
6. Copyright and Proprietary Rights
6.1 Licensor shall retain all right, title and interest to the copyright
in the System and all other proprietary rights therein and in all
materials supplied to the Licensee hereunder.
6.2 The Licensee understands and agrees that the System constitutes
confidential and proprietary information of the Licensor and
represents a trade secret of great value to the Licensor. The
Licensee agrees to maintain the said System in strict confidence and
except as provided for in this Agreement, agrees not to disclose,
duplicate, or otherwise reproduce, directly or indirectly, the
System in whole or in part, or any materials relating thereto; the
Licensee agrees to take all reasonable precautions to ensure that no
unauthorized persons shall have access to the System and that all
authorized persons having access to the System shall refrain from
any such disclosure, duplication or reproduction or removal. If any
unauthorized use is made of the System by a third party as a result
of the Licensee's negligence, or the negligence of those for whom
the Licensee is in law responsible, Licensee shall pay to
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Licensor immediately on demand, an amount equal to the fees which
such third party would have been obliged to pay had Licensor granted
a license to the unauthorized user at the beginning of the period of
unauthorized use. Licensee agrees to pay all costs including
reasonable legal fees incurred by Licensor in restraining
unauthorized use.
7. Warranties
7.1 Licensor represents and warrants to Licensee that as of the date
hereof Licensor has the right to grant the licenses and other rights
granted herein and that the System does not infringe any patent,
copyright, trademark or other intellectual property right (including
trade secrets) or similar right, of any third party. Licensor
further represents and warrants to Licensee that no claim, whether
or not embodied in an action past or present of infringement of any
copyright, patent, trademark or other intellectual property right or
similar right has been made or is pending against the Licensor
relative to the System.
7.2 The Licensor warrants that at the date of Acceptance of each unique
TCS Point of Sale Terminal Application and for a period of thirty
(30) days thereafter (the "Warranty Period"), the System will
operate substantially in accordance with the applicable
specifications previously supplied to Licensee. The Licensor's sole
liability under this warranty shall be to respond to programming
errors upon written notification from Licensee during the Warranty
Period.
Such notification shall describe the deficiency and shall be
reproducible using procedures, which can be carried out by Licensor
on equipment similar to that of the Licensee. Licensor shall use its
best efforts to respond to a defect by issuing corrected information
such as documentation or corrected code or a bypass by telephone,
e-mail, facsimile transmission or magnetic medium.
Licensor shall have the opportunity to make repeated efforts within
a reasonable time to respond to programming errors. Licensee
acknowledges that Licensor does not represent or warrant that:
(a) The operation of the System will be error free;
(b) The operation of the System will not be interrupted by reason
of defect therein.
This Warranty shall not apply if:
(a) the System is not used in accordance with the Licensor's
instruction;
(b) any part of the System shall have been altered, modified, or
converted by the Licensee;
(c) any of the Licensee's equipment shall malfunction; or
(d) any other cause within the control of the Licensee results in
part of the System becoming inoperative.
Licensee acknowledges that sophisticated computer software such as
the System may contain latent defects, which may not be discovered
or eliminated by Licensor during
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creation or testing of the System, notwithstanding that Licensor
fulfils the highest industry standards in the development of the
System. Therefore, Licensee agrees that;
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR
CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY AND FITNESS FOR A
PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW
OR FROM A COURSE OF DELAY OR USAGE OR TRADE. LICENSOR SHALL NOT BE
LIABLE FOR ANY LOSS OR DAMAGE INCLUDING WITHOUT LIMITATION OF PROFIT
OR BUSINESS OR SIMILAR FINANCIAL LOSS OR ANY OTHER INDIRECT, SPECIAL
OR CONSEQUENTIAL DAMAGES WHICH MAY BE CAUSED DIRECTLY OR INDIRECTLY
BY THE INADEQUACY OF THE SYSTEM OR ANY DEFECT OR DEFICIENCY THEREIN.
LICENSEE AGREES THAT EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPH 7
HEREOF LICENSOR'S LIABILITY UNDER THIS AGREEMENT FOR DAMAGES FOR
LOSS OR INJURY SHALL NOT EXCEED THE AMOUNT PAID TO THE LICENSOR BY
THE LICENSEE HEREUNDER.
8. Provision of Software Support Services
8.1 Licensor agrees to provide support for the System for the Term, at a
price specified in Schedule A.
8.2 The Licensor will supply telephone and electronic mail ("e-mail")
assistance to the Licensee during the Licensor's regular business
days, Monday through Friday from 09:00 to 17:00 Eastern Standard
Time (EST), from the Licensor's designated office location. Through
this assistance the Licensor will accept reports of System Defects
and will provide error analysis and correction in accordance with
section 8.5, if correction can be made by telephone and will
incorporate system corrections in future releases.
8.3 The telephone and e-mail service described in section 8.2 is not to
be used for educational purposes. If the Licensor determines that
the assistance service is being used for educational purposes, the
Licensee shall pay to the Licensor, the Licensor's then current
standard service fees for educational services.
8.4 The Licensor shall, if, as and when it deems necessary, provide the
Licensee with releases for the System, which may contain repairs of
reported programming errors and, if applicable, any documentation
amendments applicable to the System release. These releases do not
include functional enhancements
8.5 If the Licensee suspects that a System Defect exists in the System,
the Licensee shall notify the Licensor by facsimile, in writing or
by e-mail of its suspicions. A System Defect is defined as an
instance whereby the System does not operate in accordance with the
specifications. This notification shall comprehensively describe the
nature of the suspected defect and provide details of the
circumstances of its occurrence. Upon receipt of the Licensee's
notice, the Licensor shall use its best efforts to confirm the
existence of the defect. If the Licensor confirms the existence of
the
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defect, the Licensor shall correct it as part of its obligations
hereunder; if the Licensor determines that no such defects exist the
Licensee shall pay the Licensor for its efforts at the Licensors
hourly rate then in effect.
8.6 If the Licensee has elected not to subscribe for the software
support service, the Licensee may at any time purchase the latest
release at the cost specified in Schedule A.
8.7 From time to time the Licensor will make new releases of the System
available to paid up subscribers of the software support service.
When a new release becomes available, all previous releases will no
longer be available for deployment.
9. Indemnification
9.1 Licensor agrees to indemnify and hold harmless Licensee against any
and all claims, suits, actions, proceedings, judgments, damages and
legal and other expenses arising out of a breach of the warranty set
forth in Section 8 provided that the System is being used in
accordance with the terms and conditions of the Agreement and under
normal use and that Licensee notifies Licensor in writing promptly
after receiving notice of any such claim or suit and allows Licensor
the opportunity to defend or settle any such claim or suit at its
own expense. Licensee agrees to co-operate fully with Licensor in
the defense of any claim or suit. If any claim has occurred,
Licensee agrees to permit Licensor at its option and expense either
to procure for Licensee the right to continue using the System or to
replace or modify same so that it becomes non-infringing. If neither
of the foregoing alternatives is reasonably available, Licensee
agrees on three (3) month's written notice from Licensor to return
or destroy all copies of the System received from Licensor pursuant
hereto. Licensor will refund in mentioned cases all license fees
paid by Licensee up to the moment. Licensor shall have no obligation
to defend Licensee or to pay costs, damages and legal fees for any
claim based on any portion of the System that has been modified by
Licensee or for any claim based upon the combination, operation or
use of the System with programs or data not supplied by Licensor.
10. Term and Termination
10.1 The term of this Agreement shall commence on the earlier of the date
of execution of this Agreement by both parties or the Delivery Date
and shall continue for the Term unless sooner terminated in
accordance with the provisions set forth hereinafter.
10.2 Licensee shall have the right to terminate this Agreement during the
Testing Period or the Warranty Period, if the software does not
materially conform to its specifications. This shall be the sole
legal remedy and extent of the Licensor's liability under this
condition. Any fees paid up to this moment will be refunded by the
Licensor.
10.3 Licensor shall have the right to terminate this Agreement at any
time in the event of a material breach by Licensee of its obligation
under this Agreement. Such termination shall become effective thirty
(30) days after the receipt of written notice by Licensee of such
breach, unless the Licensee shall have corrected the breach before
the expiration of the thirty
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(30) day period. On termination of this Agreement, no refund of any
portion of the Licensee fee shall be required.
10.4 Notwithstanding any termination of this Agreement, the
representations and warranties under the Sections entitled
"Warranties" and the rights and obligations under the Sections
entitled "Copyright and Proprietary Rights", "Payment of Fees" and
"Indemnification" shall survive and continue and shall bind the
parties and their legal representatives, successors, heirs and
assigns.
10.5 Upon termination of this Agreement, all rights granted to Licensee
hereunder shall revert to Licensor. Licensee agrees to return all
proprietary materials furnished to it hereunder.
11. General
11.1 Assignment
11.1.1 This Agreement and the rights and obligations hereunder shall not be
assigned in whole or in part by either party without the prior
written consent of the other party and any proposed assignment
without such written consent shall be void and of no effect.
Notwithstanding anything herein, either party shall be entitled to
assign its rights and obligations under this Agreement to a
subsidiary of that party provided that such subsidiary shall agree
in writing to be bound by the terms and conditions hereof in lieu of
the original party. The covenants, conditions and obligations herein
contained shall be binding upon and inure to the benefit of the
heirs, successors and permitted assigns of the parties hereto.
11.2 Notice
11.2.1 Any notice, payment, or other communication required or permitted to
be made or given to either party hereto personally delivered or if
sent to such party by facsimile with the original sent by registered
mail (except that certified or registered mail may be used where
delivery is in the same country of mailing), postage prepaid,
addressed to it at its address set forth in this Agreement, or to
such other address as it shall designate by written notice given to
the other party. Any such notice, payment or communication shall be
deemed to be given or made if delivered, when delivered and if
mailed, on the date of mailing.
Address for Notices to Security Bancorp Inc.
Xxxx. X, Xxxx 0 - 0000 0xx Xxxxxx X.X.,
Xxxxxxx, Xxxxxxx,
Xxxxxx, X0X 0X0
Facsimile: 000-000-0000
e-mail: Xxx@xxxxxxxxxxxxxxxxxx.xxx
Address for Notices to TCS (Canada) Limited:
000 Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxx,
Xxxxxx, X0X 0X0
Facsimile: 000-000-0000
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11.3 Currency
11.3.1 All reference in this Agreement and the Attachments to "dollars",
"CAD", and "$" shall mean lawful currency of Canada.
11.4 Force Majeure
11.4.1 Those obligations which allegedly cannot be met due to force
majeure, and only those obligations, shall be suspended during the
continuance of the force majeure occurrence, and the inability to
perform such obligations shall not be a breach of this Agreement;
provided, however; that the party availing itself of force majeure
shall continue to exercise all due diligence to overcome the
inability. As used herein, "Force Majeure" shall mean causes without
a party's fault or negligence including, but not limited to, Acts of
God, accident, war, fire, lockout, strike or labour dispute, riot or
civil commotion, act of the public enemy, enactment, rule, order or
act of civil or military authority, acts or omissions of the other
party or judicial action.
11.5 Waiver
11.5.1 Failure to enforce any rights hereunder, irrespective of the length
of time for which such failure continues, shall not constitute a
waiver of those or any other rights.
11.6 Titles
11.6.1 Titles or captions contained in this Agreement are inserted only for
convenient reference, and in no way define, limit or describe the
scope or intent of this Agreement or any provisions hereof.
11.7 Entire Agreement
11.7.1 The foregoing provisions and Schedule A of this Agreement constitute
the entire Agreement between the parties and shall supersede all
prior Agreements, oral or written and all other communications
between them relating to the subject matter hereof. No changes or
additions to this Agreement shall have effect unless in writing and
properly executed by both parties.
11.8 Governing Law
11.8.1 This Agreement shall be construed, and the legal relations between
the parties hereto shall be determined, in accordance with the laws
of Ontario, Canada in force therein.
IN WITNESS WHEREOF, the Licensor and the Licensee have hereunto set
their hands.
TCS (CANADA) LIMITED SECURITY BANCORP INC.
Date: Date:
------------------------- -----------------------------
Signed: Signed:
----------------------- ---------------------------
Name: Xxxx Xxxxx Name:
------------------------- -----------------------------
Title: Vice-President Title:
------------------------ ----------------------------
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SCHEDULE A No. SBCSLAO1
The following specific licenses are granted by the License Agreement named
above, subject to the fees and terms stated in this schedule.
1. Currency
All amounts are quoted in Canadian Dollars.
2. Definitions
2.1 "Delivery" is completed when the Licensee initially receives shipment of
the System or if the Licensee has assigned the task of installation to the
Licensor, which said service is negotiated under a separate agreement,
then Delivery is completed when the Licensor initially installs the System
in an Eligible Point of Sale Terminal owned by the Licensee. Delivery is
unique for each first installation of a unique TCS Point of Sale Terminal
Application Product licensed by the Licensee.
2.2 "Eligible Point of Sale Terminal" means one of the devices listed in
Schedule A, as eligible for the licensed product, and which is owned or
leased by the Licensee, or third party persons under contract or agreement
with the Licensee and operated by or for the Licensee.
2.3 "Term" shall mean a period of five (5) years from the date of execution of
this Agreement by both parties.
3. Terms of License.
3.1 The following table lists the Point of Sale Terminal Application Products
available under this agreement and the Eligible point of sale Terminals
for each. The table also indicates which specific product licenses have
been granted by way of initials by both the Licensee and Licenser.
--------------------------------------------------------------------------------
11.9 Terminal Application 11.10 Eligible Terminals 11.11 License Granted
Product Name Licensee Licenser
--------------------------------------------------------------------------------
TCS Retail Application Hypercom ICES500
ICE5500 (Dial) V1.0
--------------------------------------------------------------------------------
TCS Restaurant and Hypercom ICE5500
Entertainment Application
ICE5500 (Dial) V1.0
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4. License and Support Pees Payable
4.1 Please choose one of the following options:
|_| [CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION].
OR
|_| [CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION].
Note that one license is required for each installation of the System in a
terminal.
4.2 If the one-time per installation fee is chosen, please indicate if
software support services are being contracted for at the following price:
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION].
|_| Yes |_| No
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION].
4.3 If support services are declined then a release of the System may be
purchased by the Licensee at a cost [CONFIDENTIAL PORTION DELETED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
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5. Payment Schedule
5.1 Payment of license fee is due as follows:
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION].
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION].
5.2 Payment of per terminal support fee is due [CONFIDENTIAL PORTION DELETED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
5.3 Payment for a release, if support services were declined, is [CONFIDENTIAL
PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION].
5.4 Invoices for payment may be presented by the Licensor to the Licensee
following the achievement of these events. Invoices are due [CONFIDENTIAL
PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION], and are subject to the terms of the license agreement.
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