SOFTWARE LICENSE AND SERVICES AGREEMENT
SOFTWARE
LICENSE AND
SERVICES AGREEMENT
THIS
SOFTWARE LICENSE AND SERVICES AGREEMENT (this "Agreement") is made and entered
into this 8th
day of
June, 2007 (the "Effective Date") by and between TRANSPARENSEE
SYSTEMS, INC.,
a
Delaware corporation having its principal place of business at 000 Xxxx
0xx
Xxxxxx,
#0X, Xxx Xxxx, Xxx Xxxx 00000 ("Licensor"), and DIGITALFX
INTERNATIONAL, INC.,
a
Florida corporation having its principal place of business at 0000 Xxxx Xxxxxxx
Xxxx, Xxxxx #0, Xxx Xxxxx, Xxxxxx 00000 ("Licensee").
RECITALS
A.
Licensor is the owner of, or has acquired rights to, the Software and
Documentation (as defined below).
B.
Licensor desires to grant to Licensee and Licensee desires to obtain from
Licensor a nonexclusive license to use the Software and Documentation solely
in
accordance with the terms and on the conditions set forth in this
Agreement.
C.
Licensor desires to provide to Licensee the Services (as defined below),
and
Licensee desires to obtain from Licensor such Services.
D.
Licensee desires to resell the technology products offered by Licensor to
end
users under a private label, in accordance with the terms and conditions
set
forth herein.
NOW,
THEREFORE, the parties hereto agree as follows:
1.
DEFINITIONS.
1.1
"Documentation" shall mean all manuals, user documentation, and other related
materials pertaining to the Software which are furnished to Licensee by Licensor
in connection with the Software.
1.2
"Integration Services" shall mean the technical services required to integrate
the Software with the Licensee’s proprietary software to enable Licensee to run
the Software on Licensee’s primary systems of designated equipment, to showcase
the Software on Licensee’s web site, and to resell products developed from the
Software as provided herein.
1.3
"Software" shall mean the computer programs in machine readable object code
form
listed in Exhibit A attached hereto and any subsequent error corrections
or
updates supplied to Licensee by Licensor pursuant to this Agreement. Exhibit
"A"
may be amended from time to time by the parties in writing.
2.
GRANT
OF RIGHTS; PURCHASE OF SERVICES.
2.1
The
License granted for Software under this Agreement authorizes Licensee on
a
nonexclusive basis to use the Software for the license term set forth on
Exhibit
A. In addition, Licensor hereby grants to Licensee the right to resell the
products derived from the Software pursuant to the terms and conditions set
forth in the Reseller Agreement between the Parties hereto attached to this
Agreement as Exhibit B (the "Reseller Agreement").
2.2 Licensee
shall purchase from Licensor, and Licensor shall sell to Licensee, the
Integration Services as set forth on Exhibit A. Licensee will pay Licensor
the
fee for the Integration Services set forth on Exhibit A.
3.
DELIVERY OF SOFTWARE AND DOCUMENTATION.
Licensor
shall deliver to Licensee a master copy of the Software licensed hereunder
in
object code form, suitable for reproduction, in electronic files
only. Licensor
shall also deliver copies of Documentation in electronic files.
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4.
MODIFICATIONS.
4.1
Error
Corrections and Updates. Licensor will provide Licensee, at no cost to Licensee,
with error corrections, bug fixes, patches or other updates to the Software
licensed hereunder in object code form to the extent available in accordance
with Licensee's release schedule for a period of one (1) year from the date
of
shipment.
4.2
Other
Modifications. Licensee may, from time to time, request that Licensor
incorporate certain features, enhancements or modifications into the Software,
on terms to be mutually agreed.
4.3
Title
to Modifications. All such error corrections, bug fixes, patches, updates
or
other modifications shall be the sole property of Licensor.
5.
COPIES.
5.1
Printed Matter. Except as specifically set forth herein, no Software or
Documentation which is provided by Licensee pursuant to this Agreement in
human
readable form, such as written or printed documents, shall be copied in whole
or
in part by Licensee without Licensor's prior written agreement. Additional
copies of printed materials may be obtained from Licensor at the charges
then in
effect.
5.2
Machine Readable Matter. Except as specifically set forth herein or in the
Reseller Agreement, any Software provided in machine readable form may not
be
copied by Licensee in whole or in part, except for Licensee's backup or archive
purposes. Licensee agrees to maintain appropriate records of the number and
location of all copies of the Software and make such records available upon
Licensor's request. Licensee further agrees to reproduce all copyright and
other
proprietary notices on all copies of the Software in the same form and manner
that such copyright and other proprietary notices are originally included
on the
Software.
6.
LICENSE FEES.
In
consideration of the license rights granted in Article 2 above, Licensee
shall
pay the License Fees or other consideration for the Software and Documentation
as set forth on Exhibit A attached hereto.
7.
PROTECTION OF SOFTWARE.
7.1
Proprietary Notices. Licensee agrees to respect and not to remove, obliterate,
or cancel from view any copyright, trademark, confidentiality or other
proprietary notice, xxxx, or legend appearing on any of the Software or output
generated by the Software, and to reproduce and include same on each copy
of the
Software.
7.2
No
Reverse Engineering. Licensee agrees not to modify, reverse engineer,
disassemble, or decompile the Software, or any portion thereof.
7.3
Ownership. Licensee further acknowledges that all copies of the Software
in any
form provided by Licensor or made by Licensor are the sole property of Licensor
and/or its suppliers. Licensee shall not have any right, title, or interest
to
any such Software or copies thereof except as provided in this Agreement,
and
further shall secure and protect all Software and Documentation consistent
with
maintenance of Licensor’s proprietary rights therein.
8.
CONFIDENTIALITY.
8.1
Acknowledgement. Licensee hereby acknowledges and agrees that the Software
and
Documentation constitute and contain valuable proprietary products and trade
secrets of Licensor and/or its suppliers, embodying substantial creative
efforts
and confidential information, ideas, and expressions. Accordingly, Licensee
agrees to treat (and take precautions to ensure that its employees treat)
the
Software and Documentation as confidential in accordance with the
confidentiality requirements and conditions set forth below.
8.2
Maintenance of Confidential Information. Each party agrees to keep confidential
all confidential information disclosed to it by the other party in accordance
herewith (the other party’s "Confidential Information"), and to protect the
confidentiality thereof in the same manner it protects the confidentiality
of
similar information and data of its own (at all times exercising at least
a
reasonable degree of care in the protection of the Confidential Information);
provided, however, that neither party shall have any such obligation with
respect to use or disclosure to others not parties to this Agreement of such
Confidential Information as can be established to: (a) have been known publicly;
(b) have been known generally in the industry before communication by the
disclosing party to the recipient; (c) have become know publicly, without
fault
on the part of the recipient, subsequent to disclosure by the disclosing
party;
(d) have been known otherwise by the recipient before communication by the
disclosing party; or (e) have been received by the recipient without any
obligation of confidentiality from a source (other than the disclosing party)
lawfully having possession of such information.
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8.3
Injunctive Relief. Each party hereto acknowledges that the unauthorized use,
transfer or disclosure of the other party’s Confidential Information will (i)
substantially diminish the value to the disclosing party of the trade secrets
and other proprietary interests that are or relate to the subject of this
Agreement; (ii) render the disclosing party's remedy at law for such
unauthorized use, disclosure or transfer inadequate; and (iii) cause irreparable
injury in a short period of time. If either party hereto breaches any of
its
obligations with respect to the use or confidentiality of the other party’s
Confidential Information, the disclosing party shall be entitled to equitable
relief to protect its interests therein, including, but not limited to,
preliminary and permanent injunctive relief.
8.4
Survival. Each party's obligations under this Article 8 will survive the
termination of this Agreement or of any license granted under this Agreement
for
whatever reason.
9.
WARRANTIES; SUPERIOR RIGHTS.
9.1
Ownership. Licensor represents that it is the owner of the entire right,
title,
and interest in and to Software, and that it has the sole right to grant
licenses thereunder, and that it has not granted licenses thereto to any
other
entity that would restrict rights granted hereunder except as expressly stated
herein.
9.2
Limited Warranty. Licensor represents and warrants to Licensee that the Software
will perform substantially as described in Licensor's then current Documentation
for such Software for the length of the Term.
9.3
Limitations. Notwithstanding the warranty provisions set forth in Section
9.2
above, all of Licensor's obligations with respect to such warranties shall
be
contingent on Licensee's use of the Software in accordance with this Agreement
and in accordance with Licensor's instructions as provided by Licensor in
the
Documentation, as such instructions may be amended, supplemented, or modified
by
Licensor from time to time. Licensor shall have no warranty obligations with
respect to any failures of the Software which are the result of accident,
abuse,
misapplication, extreme power surge or extreme electromagnetic
field.
9.4
Licensee's Sole Remedy. Licensor's entire liability and Licensee's exclusive
remedy shall be, at Licensee's option, either (a) repair or replacement of
the
Software upon its return to Licensor, or (b) damages following return of
the
Software in the amount of $75,000, prorated over the Initial Term of this
Agreement (e.g. if the breach of warranty occurs on the System Activation
Date,
the amount of the damages would be $75,000; if such breach occurred on the
first
anniversary of the System Activation Date the damages would be $37,500, and
if
such breach occurred on the last day of the Initial Term the damages would
be
$0); provided Licensor receives written notice from Licensee during the warranty
period of a breach of warranty. Any replacement Software will be warranted
for
the remainder of the Term.
9.5
Disclaimer of Warranties. LICENSOR DOES NOT REPRESENT OR WARRANT THAT ALL
ERRORS
IN THE SOFTWARE AND DOCUMENTATION WILL BE CORRECTED. THE WARRANTIES STATED
IN
SECTION 9.2 ABOVE ARE THE SOLE AND THE EXCLUSIVE WARRANTIES OFFERED BY LICENSOR.
THERE ARE NO OTHER WARRANTIES RESPECTING THE SOFTWARE AND DOCUMENTATION OR
SERVICES PROVIDED HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO ANY WARRANTY OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR
PURPOSE, EVEN IF LICENSOR HAS BEEN INFORMED OF SUCH PURPOSE. NO AGENT OF
LICENSOR IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF LICENSOR
AS SET FORTH HEREIN.
9.6
Limitation of Liability. LICENSEE ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION
WHICH LICENSOR IS CHARGING HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR
ASSUMPTION BY LICENSOR OF THE RISK OF LICENSEE'S CONSEQUENTIAL OR INCIDENTAL
DAMAGES WHICH MAY ARISE IN CONNECTION WITH LICENSEE'S USE OF THE SOFTWARE
AND
DOCUMENTATION. ACCORDINGLY, LICENSEE AGREES THAT LICENSOR SHALL NOT BE
RESPONSIBLE TO LICENSEE FOR ANY LOSS-OF-PROFIT, INDIRECT, INCIDENTAL, SPECIAL,
OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE LICENSING OR USE OF THE SOFTWARE
OR
DOCUMENTATION. Any provision herein to the contrary notwithstanding, the
maximum
liability of Licensor to any person, firm or corporation whatsoever arising
out
of or in connection with any license, use or other employment of any Software
delivered to Licensee hereunder, whether such liability arises from any claim
based on breach or repudiation of contract, warranty, tort or otherwise,
shall
in no case exceed the actual price paid to Licensor by Licensee for the Software
whose license, use, or other employment gives rise to the liability. The
essential purpose of this provision is to limit the potential liability of
Licensor arising out of this Agreement. The parties acknowledge that the
limitations set forth in this Article 9 are damages in the amount of $75,000,
prorated over the Initial Term of this Agreement, and that, were Licensor
to
assume any further liability other than as set forth herein, such consideration
would of necessity be set substantially higher.
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10.
INDEMNIFICATION
10.1
Licensor shall indemnify, hold harmless and defend Licensee against any action
brought against Licensee to the extent that such action is based on a claim
that
the unmodified Software, when used in accordance with this Agreement, infringes
a United States copyright or patent, and Licensor shall pay all costs (including
attorneys’ fees), and any damages finally awarded or settlements approved by
Licensor; provided, that Licensee promptly notifies Licensor in writing of
any
claim, gives Licensor sole control of the defense and settlement thereof
and
provides all reasonable assistance in connection therewith. If any Software
is
finally adjudged to so infringe, or in Licensor's opinion is likely to become
the subject of such a claim, Licensor shall, at its option, either: (i) procure
for Licensee the right to continue using the Software (ii) modify or replace
the
Software to make it noninfringing, or (iii) permit the Licensee to return
the
Software and receive damages in the amount of $75,000, prorated over the
Initial
Term of this Agreement (e.g. if the Software is returned pursuant to this
Section 10.1 on the System Activation Date, the amount of the damages would
be
$75,000; if the Software was returned on the first anniversary of the System
Activation Date the damages would be $37,500, and if the Software was returned
on the last day of the Initial Term the damages would be $0). Licensor shall
have no liability regarding any claim arising out of: (w) use of other than
a
current, unaltered release of the Software unless the infringing portion
is also
in the then current, unaltered release, (x) use of the Software in combination
with non-Licensor software, data or equipment if the infringement was caused
by
such use or combination, (y) any modification or derivation of the Software
not
specifically authorized in writing by Licensor or (z) use of third party
software. THE FOREGOING STATES THE ENTIRE LIABILITY OF LICENSOR AND THE
EXCLUSIVE REMEDY FOR LICENSEE RELATING TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT
OF ANY COPYRIGHT OR OTHER PROPRIETARY RIGHT BY THE SOFTWARE.
10.2
Except for the foregoing infringement claims, Licensee shall indemnify and
hold
harmless Licensor and its officers, agents and employees from and against
any
claims, demands, or causes of action whatsoever, including without limitation
those arising on account of Licensee's modification or enhancement of the
Software or otherwise caused by, or arising out of, or resulting from, the
exercise or practice of the license granted hereunder by Licensee, its
sublicensees, if any, its subsidiaries or their officers, employees, agents
or
representatives.
11.
RESELLER AGREEMENT. The parties agree that they shall enter into a Reseller
Agreement pursuant to which Licensee shall resell products of Licensor, on
the
terms set forth in the Reseller Agreement, a copy of which is attached hereto
as
Exhibit B.
12.
DEFAULT AND TERMINATION.
12.1
Events of Default. This Agreement may be terminated by the nondefaulting
party
if any of the following events of default occur: (1) if a party materially
fails
to perform or comply with this Agreement or any provision hereof; (2) if
either
party fails to strictly comply with the provisions of Section 9
(Confidentiality) or makes an assignment in violation of Section 14
(Nonassignability); (3) if a party becomes insolvent or admits in writing
its
inability to pay its debts as they mature, or makes an assignment for the
benefit of creditors; (4) if a petition under any foreign, state, or United
States bankruptcy act, receivership statute, or the like, as they now exist,
or
as they may be amended, is filed by a party; or (5) if such a petition is
filed
by any third party, or an application for a receiver is made by anyone and
such
petition or application is not resolved favorably within ninety (90)
days.
12.2
Effective Date of Termination. Termination due to a material breach of Articles
2 (Grant of Rights), 5 (Copies), 7 (Protection of Software), or 8
(Confidentiality) shall be effective on notice. In all other cases, termination
shall be effective thirty (30) days after notice of termination to the
defaulting party if the defaults have not been cured within such thirty (30)
day
period.
12.3
Obligations on Expiration of Termination. Within ten (10) days after termination
of this Agreement, Licensee shall cease and desist all use of the Software
and
Documentation and shall return to Licensor all full or partial copies of
the
Software and Documentation in Licensee's possession or under its
control.
13.
NOTICES. All notices, authorizations, and requests in connection with this
Agreement shall be deemed given (i) five days after being deposited in the
U.S.
mail, postage prepaid, certified or registered, return receipt requested;
or
(ii) one day after being sent by overnight courier, charges prepaid, with
a
confirming fax; and addressed as first set forth above or to such other address
as the party to receive the notice or request so designates by written notice
to
the other.
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14.
NONASSIGNABILITY. Neither party hereto shall assign this Agreement or its
rights
hereunder without the prior written consent of the other party; except that
a
party may assign this Agreement to any parent company or subsidiary, any
affiliate under common control with the party, any successor to the assets
of
the party as a result of a merger, or any purchaser of all or substantially
all
of the assets or equity of the party.
15.
GOVERNING LAW; JURISDICTION AND VENUE. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws
of
the State of New York.
16.
SEVERABILITY. If any provision of this Agreement shall be held by a court
of
competent jurisdiction to be illegal, invalid or unenforceable, the remaining
provisions shall remain in full force and effect.
17.
MISCELLANEOUS. This Agreement and its exhibits contain the entire understanding
and agreement between the parties respecting the subject matter hereof. This
Agreement may not be supplemented, modified, amended, released or discharged
except by an instrument in writing signed by each party's duly authorized
representative. All captions and headings in this Agreement are for purposes
of
convenience only and shall not affect the construction or interpretation
of any
of its provisions. Any waiver by either party of any default or breach hereunder
shall not constitute a waiver of any provision of this Agreement or of any
subsequent default or breach of the same or a different kind.
IN
WITNESS WHEREOF, the parties have caused their duly authorized representatives
to execute this Agreement as of the date first set forth above.
Transparensee
Systems, Inc.
By: /s/
Xxxxxx X. Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
Chief Executive Officer
DigitalFX
International, Inc.
By: /s/
Xxxxx
Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Chairman, CEO & President
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EXHIBIT
A
SOFTWARE
AND CONSIDERATION
Description
of Software
A
search
engine that indexes information held in a database and allows users to: (1)
increase the speed of database queries; (2) query data more flexibly than
can be
done with an SQL query; and (3) perform "closest to" and "most similar to"
queries on structured data.
Description
of the Integration Services
Licensor
shall provide the appropriately qualified personnel to perform the Front-End
and
Back-End technical services required to integrate the Software with Licensee’s
proprietary software to enable Licensee to run the Software on Licensee’s
primary systems of designated equipment, to showcase the Software on Licensee’s
web site, and to resell products developed from the Software as provided
herein.
The Integration Services will be complete on the date (the "System Activation
Date") on which Licensee’s system is activated with the Software running on it
as warranted in this Agreement.
All
reasonable travel expenses incurred by Licensor personnel in connection with
the
performance of the Integration Services shall be paid by Licensee.
License
Fee and Fees for Integration Services
The
license fee for the Initial Term (as hereinafter defined) and the fee for
Integration Services, including (i) Back-End Integration, and (ii) Front
End
Integration up to a maximum of $*****, shall be $*****. The license fee for
the
Renewal Term, if any, shall be $***** per year. For purposes of calculating
the
cost of Front-End Integration, the cost per day, per person, shall be $*****.
Any fees for Front-End Integration in excess of $***** shall be paid by
Licensee.
License
Term
This
Agreement shall become effective and the Parties’ obligations shall commence
upon the Effective Date, and continue for a period of two (2) years from
the
System Activation Date unless sooner terminated as provided in this Agreement
(the "Initial Term"). This Agreement will be automatically renewed for an
additional two (2) year term (the "Renewal Term") after the expiration of
the
Initial Term unless Licensee shall give Licensor written notice of its intent
to
cancel at least thirty (30) days prior to the expiration of the Initial Term.
The Initial Term and the Renewal Term, if any, shall be referred to hereunder,
collectively, as the "Term" of this Agreement.
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