Exhibit 10.35
SOFTWARE ASSIGNMENT AGREEMENT
THIS AGREEMENT is made by and between S-CUBED INTERNATIONAL CORPORATION
("S-CUBED"), X.X. Xxx 0000, Xxxxxxxx, Xxxxxxxxxxx 00000 and COMPUTRON SOFTWARE,
INC. ("COMPUTRON"), 000 Xxxxx 00 Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000.
WHEREAS, the parties have previously entered into certain agreements, including,
without limitation, the Marketing Agreement for Computer Software with a
Contract Effective Date of January 23, 1995, the Addendum thereto and the
amendatory letter dated May 26, 1998 (collectively, the "Prior Agreements"),
providing for, among other things, S-CUBED's provision to COMPUTRON of the
software programs identified in EXHIBIT A, attached hereto and made a part of
this Agreement (the "Software").
WHEREAS, the parties wish to terminate the Prior Agreements and make final
provisions relating to the Software.
NOW, THEREFORE, for good and valuable consideration, the parties hereby agree as
follows:
1. Upon execution of this Agreement, S-CUBED shall deliver to COMPUTRON one (1)
master copy of both the object code and source code of the Software, and any
related documentation.
2. In consideration for the payment by COMPUTRON to S-CUBED of $125,000.00 (the
"Fee"), COMPUTRON and S-CUBED agree that the Software, and any related
documentation, shall belong exclusively to COMPUTRON, whether or not COMPUTRON
uses such material, and S-CUBED hereby irrevocably assigns, and shall cause its
employees and subcontractors (including, without limitation, Software Brewers
Inc.) to irrevocably assign, all rights of every kind, including, without
limitation, copyrights, in the Software to COMPUTRON. No rights to or in the
Software are reserved to S-CUBED or to S-CUBED's employees or subcontractors.
COMPUTRON shall have the right to use, in any media, and by any means or
methods, now known or hereafter known, all of the Software, any part or parts
thereof, or none of the Software, as COMPUTRON sees fit, and COMPUTRON may alter
the Software, add to it, or combine the Software with any other work or works,
in COMPUTRON's sole discretion.
3. COMPUTRON shall pay the Fee to S-CUBED as follows: $50,000.00 upon signing of
this Agreement by the last party to do so and $75,000.00 within ninety (90) days
following such signing.
4. S-CUBED hereby warrants and represents to COMPUTRON that the Software, and
any related documentation, has not been copied, without permission, from the
work of any third party, that COMPUTRON will own, pursuant to this Agreement,
all necessary proprietary rights (including, without limitation, patent,
trademark, trade secrets and copyright rights) in the Software and such
documentation, and that the Software and such documentation do not, and will
not, infringe upon the proprietary rights of third parties. S-CUBED hereby
agrees to execute
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and deliver, and to cause its employees and subcontractors to execute and
deliver, all further instruments and documents as COMPUTRON shall deem necessary
or advisable to evidence, establish, maintain or defend COMPUTRON's rights in or
to the Software and such material (for example, any forms required by the
Copyright Office).
5. S-CUBED hereby agrees to and shall defend, indemnify and hold COMPUTRON and
its affiliates, successors, assigns and licensees harmless from and against any
and all claims, liabilities, losses, judgements, suits, damages, costs, charges,
awards and counsel fees relating to any claim of patent, copyright, trade secret
or other intellectual property right infringement made by third parties with
respect to the Software, as provided to COMPUTRON by S-CUBED. Without limiting
the generality of the foregoing, S-CUBED, its principals, employees and
subcontractors shall fully cooperate in any defense by COMPUTRON of any such
infringement claims.
6. COMPUTRON shall be solely responsible for maintaining and supporting the
Software for COMPUTRON's end users at COMPUTRON's sole expense. COMPUTRON may
purchase from S-CUBED support services with respect to the Software upon terms
and conditions, including fees, hereafter agreed to by the parties.
7. (a) The Prior Agreements, and all remaining obligations of the parties
hereunder, are hereby terminated. Without limiting the generality of the
foregoing, (i) S-CUBED has no further obligations to deliver the "Report
Interplay" (also referred to as the "Report Interlink") product (i.e., the file
named ri.exe) to COMPUTRON and COMPUTRON has no further right or license to
sublicense or distribute earlier versions of the "Report Interplay" product
which were delivered to COMPUTRON (COMPUTRON to return all copies of the "Report
Interplay" product in its possession to S-CUBED within thirty (30) days after
its signing of this Agreement), and (ii) neither party has any further
obligations to the other party under the "level of effort" arrangements under
the Prior Agreements.
(b) S-CUBED hereby grants to COMPUTRON and its affiliates a paid up
license to sublicense, whether in the past or in the future, any software
product (other than (i) the Software assigned herein, and (ii) the "Report
Interplay" product referred to in Paragraph 7(a) above) previously provided to
COMPUTRON by S-CUBED under the Addendum, and the amendatory letter dated May 26,
1998, included as part of the Prior Agreements. COMPUTRON has no rights to
receive support for, or further enhancements of, the software referred to in
this paragraph from S-CUBED.
8. This Agreement will be governed by the laws of the State of New York, without
regard to its conflict-of-laws rules.
9. The invalidity or unenforceability of any term or condition of this Agreement
shall in no way affect the remaining terms or conditions. As used in this
Agreement, the singular of any term includes the plural and the plural includes
the singular, whenever the context so requires.
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10. This Agreement sets forth the entire understanding, and hereby supersedes
any and all prior agreements (including, without limitation, the Prior
Agreements), oral or written, heretofore made, between the parties with respect
to the subject matter of this Agreement, and there are no representations,
warranties, covenants, agreements or understandings, oral or otherwise, express
or implied, affecting this Agreement not expressly set forth herein. No delay on
the part of either party in exercising any of its respective rights hereunder or
the failure to exercise the same, nor the acquiescence in or waiver of a breach
of any term, provision or condition of this Agreement shall be deemed or
construed to operate as a waiver of such rights or acquiescence thereto, except
in the specific instance for which given. None of the terms, conditions or
provisions of this Agreement shall have been held to have been changed, varied,
waived, modified or altered, except by a statement in writing signed by duly
authorized representatives of both parties.
S-CUBED INTERNATIONAL CORPORATION COMPUTRON SOFTWARE, INC.
By: By:
--------------------------------- ---------------------------------
J. Xxxxx Xxxx Xxxxxxx X. Xxxxxxxxx
Vice President Executive Vice President and
Chief Financial Officer
Date: Date:
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EXHIBIT A
SOFTWARE
COOL PAINTER COMPONENTS consist of "sbrcopgr.dll" and "sbrprset.dll". These
components are responsible for the screen display of the overlay form, and the
management of the end-user's interaction with the display.
POWER INTERACTIVE COMPONENTS consist of "Rep.OCX", which includes most of the
source code from the earlier DLLs used in the COOL Painter Components, but adds
an OLE interface and some new features to handle interfaces to a charting
component and some other additional functions.
