Exhibit 10.6*
SOFTWARE LICENSING AGREEMENT
THIS SOFTWARE LICENSING AGREEMENT (this "Agreement"), made and entered by
and between Pencom Systems Incorporated, doing business as PSW Technologies
(hereinafter "PSW"), a New York corporation with its principal offices at 0000
Xxxxxxx xx Xxxxx Xxxxxxx Xxxxx Xxxxxx, Xxxxx 00000, and Canon Computer Systems
Incorporated (hereinafter "CCSI"), a California corporation with its principal
offices at 0000 Xxxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000:
WITNESSETH:
WHEREAS, pursuant to that certain Software Development Agreement between
Pencom Systems Incorporated and CCSI dated March 9, 1994, as amended by the
Phase Three Amendment to Software Development Agreement dated March 7, 1995
("Development Agreement"), CCSI hired Pencom to develop a wholesale distribution
system based on object oriented technology for tracking CCSI's imports and
exports, monitoring inventory, processing customer orders, tracking distribution
of CCSI products, and generating sales and marketing reports.
WHEREAS, on February 15, 1996, Pencom Software, a division of Pencom
Systems, Inc., changed its name to PSW Technologies;
WHEREAS, PSW desires to license back from CCSI certain of the object
oriented technology it developed for CCSI under the Development Agreement;
WHEREAS, CCSI is willing to grant such rights and licenses on the terms
and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and intending to be legally bound, the parties hereby agree as follows:
Section 1
DEFINITION OF TERMS
The definition of terms set forth in this Section 1 shall apply in this
Agreement (in addition to terms expressly defined elsewhere herein) including
any and all exhibits, addenda, and amendments made to or incorporated herein now
or in the future.
1.1 "Deliverables." Any and all tangible products developed by PSW for
CCSI under the Development Agreement, including all object diagrams, functional
specifications, prototypes, reports, conversion tools, class libraries, the
"source" code and object code, and all necessary Documentation therefor and
further including enhancements, modifications, and corrections made to the
Deliverables by PSW pursuant to support, training, and maintenance services
provided to CCSI or otherwise at the request and expense of PSW.
* Confidential treatment is requested for certain portions of Exhibit 10.6
pursuant to Rule 406 under the Securities Act of 1933. The portions of
Exhibit 10.6 which have been omitted are denoted by an asterisk [*]. The
omitted portions of Exhibit 10.6 have been filed with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933.
1.2 "Documentation." All textual material relating to the Deliverables,
including flow charts, operating instructions, and related technical
information. Documentation shall also include customary end-user materials, such
as user manuals and training materials and sample source code used for training
and documentation purposes.
1.3 "Object 21 Systems Library." Those certain Deliverables as specified
in Schedule A that DO NOT contain specific rules or information pertaining to
CCSI's unique business methods.
l.4 "Object 21 Business Library." Those certain Deliverables as specified
in Schedule A that DO contain specific rules or information pertaining to CCSI's
unique business methods.
1.5 "Object 21 Library." The Object 21 Systems Library and the Object 21
Business Library.
1.6 "CCSI Enhancements." Changes, corrections, modifications, or
additions, including all new releases and applications, made by CCSI to the
Object 21 Library and related Documentation.
1.7 "PSW Enhancements." Changes, corrections, modifications, or additions,
including all new releases and applications, made by PSW to the Object 21
Library and related Documentation apart from its obligations pursuant to the
Development Agreement and not at CCSI's request and expense, including the
conversion of the Object 21 Library from the NeXTSTEP language into a more open
platform (e.g. OpenSTEP).
1.8 "Product." Any deliverables licensed by PSW that includes the Object
21 Library, CCSI Enhancements, PSW Enhancements, or related Documentation.
"Product" may include one or more separately priced PSW offerings.
1.9 "Customer." Any end user customers to whom PSW or Resellers may market
and sell the Product, either directly or indirectly, under the terms and
conditions of this Agreement.
1.10 "Reseller." Any of PSW's authorized resellers.
1.11 "Direct Customer." Any Resellers and any end user Customers to whom
PSW directly markets and sells the Product.
1.12 "Computer Business." The Computer Business shall be defined to
include the research, development, production, marketing, selling, distribution,
or leasing of computer hardware, computer hardware peripherals, integrated
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document management systems or cameras, or the performance of development,
consulting, training, or maintenance services relating to computer hardware,
computer hardware peripherals, integrated document management systems, or
cameras.
Section 2
GRANT OF LICENSES FROM CCSI TO PSW
2.1 Scope of License Grant. CCSI hereby grants to PSW, and PSW hereby
accepts, the following nontransferable worldwide rights and licenses:
2.1.1 a royalty-free right to use, execute, modify, and reproduce
(in any medium) the Object 21 Library, the CCSI Enhancements and related
Documentation for internal business purposes.
2.1.2 a royalty-bearing license to distribute the Product to Direct
Customers.
2.1.3 a royalty-bearing license to authorize Resellers to distribute
the Product to Customers, either on a stand-alone basis or for use in
conjunction with Resellers' computer application programs.
The foregoing rights and licenses shall be nonexclusive, except that the United
States license shall be exclusive for five (5) years from the date hereof.
2.2 Customer License. Any distribution of the Product by PSW to Customers
shall be pursuant to the terms and conditions of PSW's Customer license in the
form attached hereto as Schedule B or to a form that contains the minimum terms
and conditions of and is no less restrictive in protecting CCSI's interests than
such agreement attached hereto as Schedule B. Any distribution of the Product by
PSW to Resellers and then by Resellers to Customers shall be pursuant to the
terms and conditions of PSW's Reseller agreement in the form attached hereto as
Schedule C or to a form that contains the minimum terms and conditions of and is
no less restrictive in protecting CCSI's interests than such agreement attached
hereto as Schedule C. PSW agrees to provide and to require its Resellers to
provide in a conspicuous manner one copy of the Customer license attached as
Schedule 2 to Schedule C hereto with each Product. PSW agrees to report to CCSI
any known or suspected violation(s) of the Customer license agreement or
Reseller agreements and to reasonably cooperate with CCSI in any enforcement
actions taken by CCSI. If a conflict arises between Schedule B and any other
Customer license agreement, the terms of Schedule B shall prevail. If a conflict
arises between Schedule C and any other Reseller agreements, the terms of
Schedule C shall prevail. PSW shall undertake reasonable efforts to enforce the
terms of any license agreement between
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PSW or its Resellers and a Customer as it relates to the Products. No Customers
shall have any right to sublicense the Product unless they are also a Reseller.
2.3 Reseller Agreement. Any distribution of the Product by PSW to
Resellers, whether for further distribution on a stand-alone basis or for use in
conjunction with Resellers' computer application programs, shall be pursuant to
the terms and conditions of the PSW's Reseller agreement in the form attached
hereto as Schedule C or to a form that contains the minimum terms and conditions
of and is no less restrictive in protecting CCSI's interests than the Reseller
agreement attached hereto as Schedule C. PSW agrees to report to CCSI any known
or suspected violation(s) of the Reseller agreement and to reasonably cooperate
with CCSI in any enforcement actions taken by CCSI. If a conflict arises between
Schedule C and any other Reseller agreement, the terms of Schedule C shall
prevail. Resellers shall be bound by the restriction contained in Section 2.5.
2.4 Continuing Rights of CCSI. Subject to the rights granted in this
Xxxxxxx 0, XXXX shall retain all ownership of and full rights to continue to
use and market the Deliverables and the CCSI Enhancements and all right, title
and interest in and to all copyrights, patent rights or trade secret rights
associated with the Deliverables and the CCSI Enhancements.
2.5 Marketing Restrictions. PSW shall not directly or indirectly market or
license the Object 21 Business Library to any Customer engaged in whole or in
part in the Computer Business unless prior written authorization is received
from CCSI.
Section 3
GRANT OF LICENSE FROM PSW TO CCSI
3.1 PSW Enhancements. PSW hereby grants to CCSI, and CCSI hereby accepts,
a royalty-free, irrevocable, nonexclusive, and fully paid-up license to use,
execute, modify, reproduce (in any medium), and distribute the PSW Enhancements
for internal CCSI use and to sublicense any or all of such rights to the
affiliates of CCSI's ultimate parent Canon Inc. for their internal use.
3.2 PSW Determination of Marketing and Pricing. Except as provided herein,
PSW shall retain full discretion with respect to all decisions relating to
distribution and marketing of the Product, including, without limitation, the
determination to introduce or withdraw the Product, and the terms, conditions,
and pricing of the Product. PSW shall use its best efforts to promote the
Product or to continue any such promotion once commenced.
3.3 PSW Ownership. All PSW Enhancements shall be owned exclusively by PSW.
Nothing herein shall be construed to assign or transfer any intellectual
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property rights in the Deliverables or CCSI Enhancements, in which CCSI retains
all right, title, and interest subject only to the rights and license herein
granted.
Section 4
DELIVERY
4.1 Deliverables. As of the date hereof, PSW acknowledges that it already
has in its possession a copy of the Object 21 Library and related Documentation.
4.2 CCSI Enhancements. CCSI shall deliver copies of any CCSI Enhancements
to PSW at PSW's request CCSI shall keep PSW advised as to its plans for
preparation of any CCSI Enhancements.
4.3 PSW Enhancements. PSW shall provide to CCSI any PSW Enhancements made
by PSW during the term of this Agreement. PSW shall keep CCSI advised as to its
plans for preparation of PSW Enhancements. PSW agrees that, at a minimum, no
later than one (1) year from implementation of the Deliverables pursuant to the
Development Agreement it shall deliver to CCSI at no charge the converted Object
21 Systems Library from the NeXTSTEP language into the OpenSTEP platform in both
object and source code format.
Section 5
ROYALTY PAYMENTS AND REPORTS
5.1 Royalty Payments. In consideration of the rights in and licenses to
the Object 21 Library and CCSI Enhancements granted by this Agreement, PSW shall
pay to CCSI a [*] royalty on Net Sales Revenue of the Products on
a calendar quarterly basis. "Net Sales Revenue" means gross sales revenue less
customary trade discounts actually given, returns actually credited, and
transportation and taxes separately itemized and actually charged to and paid by
the Direct Customers. No other costs incurred in the manufacture, sales,
distribution, license, or lease of the Product shall be deducted in calculating
the royalty obligation of PSW. It is understood that PSW may increase or
decrease any prices, charges, or fees relating to any Product without notice to
or approval of CCSI. Royalties shall be paid by check to CCSI within thirty (30)
days after the last of each such quarter.
5.2 Royalty Reports. At the same time PSW makes its royalty payment to
CCSI pursuant to Section 5.1, PSW shall furnish to CCSI a royalty report
including (a) the number of Products shipped during such calendar quarter, (b)
which Object 21 Library Deliverables, CCSI Enhancements, and PSW Enhancements
are incorporated within or used in the development of the Product; and (c) and
any and all other information necessary for the determination of royalties under
this Agreement.
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5.3 Royalty Records. PSW shall keep or cause to be kept full and accurate
accounts and records of all transactions made by it and by its Resellers under
this Agreement in form such that all amounts owing hereunder to CCSI may be
readily and accurately determined. PSW shall use commercially reasonable efforts
to assure that its Resellers are (a) accurately reporting to PSW all
transactions with Customers and (b) otherwise complying with this Agreement. All
books of account and records kept under this Section 5 shall be retained by PSW
for at least two (2) years after the termination of this Agreement.
5.4 Royalty Base Confirmation. PSW shall, upon written request once each
calendar year, provide access to records with respect to the licenses granted
under this Agreement, during normal business hours, to an independent accounting
organization chosen and compensated by CCSI for purposes of a confirming audit
with respect to royalty payments. PSW shall promptly make any payments due as a
result of the audit, and PSW shall reimburse CCSI for the costs of such audit if
the audit determines that any such report pursuant to Section 5.2 is understated
by more than five percent (5%).
Section 6
COPYRIGHT NOTICES AND ENFORCEMENT
6.1 Copyright Notices. PSW shall not remove any existing copyright or
other proprietary rights notices from the Object 21 Library. PSW agrees that any
Product distributed to Resellers or Direct Customers shall contain an
appropriate copyright notice in the name of CCSI as to the CCSI-owned portions
of the Product.
6.2 Enforcement of Copyright. PSW shall be responsible to enforce CCSI and
PSW copyright infringement by Customers of the Product to the extent reasonable
under the circumstances. A failure by PSW to so enforce rights against
infringers of such copyrights within a reasonable period of time after
appropriate notification, if such failure results in a material loss of value of
licenses granted to PSW herein, shall be considered a material breach of this
Agreement by PSW.
Section 7
INDEMNIFICATION AND INSURANCE
7.1 Indemnity for Product. PSW agrees to indemnity and hold harmless CCSI
and its affiliates, officers, agents, directors, and employees, against any and
all claims, actions, proceedings, expenses, damages and liabilities (including
but not limited to any governmental investigations, complaints and actions) and
reasonable attorney's fees, arising out of or in connection with (a) any breach
of this Agreement by PSW, including its representations, warranties and
covenants, (b) any Product or any information contained therein and the use
thereof, and (c) any claim or action
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for personal injury, death or other cause of action involving product liability
claims arising from or relating to any Product.
7.2 Infringement of Intellectual Property Rights. PSW shall, at its own
expense, defend any claim or demand made, or suit instituted, against CCSI or
its affiliates, officers, agents, directors, and employees, which is based on an
allegation that (a) any Product sold, licensed, or distributed by PSW hereunder
infringes or violates any copyright, patent, trademark, or trade name of any
third party, (b) any Product contains, embodies or incorporates any trade secret
or proprietary information of any third party, or (c) the use, license or
modification of the Product constitutes a violation of the trade secrets or
proprietary rights of such third party, and shall indemnity, hold harmless and
defend CCSI or its affiliates, officers, agents, directors, and employees
against any claim, loss, expense or judgment, including reasonable attorney's
fees, which arises from any of the preceding allegations (a) through (c),
provided that CCSI gives PSW prompt notice in writing of any such allegations
and permits PSW through PSW's counsel to defend the same and gives PSW all
available information, assistance and authority to enable PSW to assume such
defense. PSW shall be permitted to control the defense of any such suit,
including appeals from any judgment therein and any negotiations for the
settlement or compromise thereof, with authority to enter into a settlement or
compromise with the prior written consent of CCSI, which will not be
unreasonably withheld. PSW shall have the affirmative obligation to diligently
and effectively defend against any such claim. If CCSI determines that PSW is
not diligently and effectively defending against such a claim, CCSI shall have
the absolute right and option to intervene in any such suit and participate or
assume control of the defense of the suit but will not have any obligation to do
so. CCSI shall have no obligation to defend PSW, or to pay any such costs,
damages, and attorney fees for any claim based upon the combination, operation,
or use of the Product.
7.3 Insurance. PSW agrees to maintain during the term of this Agreement
general liability insurance covering claims arising under the indemnification
provisions as set forth above in Sections 7.1 and 7.2, which insurance shall be
in amounts and of a type customarily maintained by companies similarly situated,
providing at least one million dollars ($1,000,000.00) coverage per occurrence.
Upon execution of this Agreement, PSW shall provide to CCSI a certificate of
insurance flaming CCSI and its affiliates, including their respective officers,
directors, agents and employees, as additional named insureds on such insurance
coverage. PSW's purchase of the commercial general liability insurance shall not
relieve PSW of any other of its obligations or liabilities under this Agreement
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Section 8
TERM AND TERMINATION
8.1 Basic Term. This Agreement shall be effective on the date first above
written and shall remain in force unless it terminates as provided below.
8.2 Termination for Default. This Agreement shall terminate upon the
bankruptcy or insolvency of either party.
8.3 Termination for Breach. In the event of a material breach of this
Agreement by either party, the other party may terminate this Agreement by
giving thirty (30) days' prior written notice thereof; provided that this
Agreement shall not terminate if the party in breach has cured the breach of
which it has been notified prior to the expiration of the thirty (30) days.
8.4 Post-Termination Provisions. In the event of any termination of the
entire Agreement, then (a) the provisions of Sections 3, 5.3, 6, 7, and 9 shall
survive as necessary to effectuate their purposes and shall bind the parties and
their legal representatives, successors, and assigns, and (b) Customer licenses
and Reseller agreements then existing by virtue of rights exercised prior to the
effective date of termination under this Agreement and any royalty obligations
of PSW with respect thereto shall survive and continue.
Section 9
CONFIDENTIAL INFORMATION
9.1 CCSI Information. In connection with this Agreement, CCSI has provided
and shall provide PSW with certain information that is proprietary and
confidential to CCSI and necessary or useful for PSW to exploit the licenses
granted hereunder.
9.2 Confidentiality. The term "Confidential Information" as used herein
shall mean any information disclosed by CCSI to PSW pursuant to Section 9.1
above in a written or other tangible form clearly identified as being
confidential. Oral or visual information shall not be considered as Confidential
Information unless it is designated confidential at the time of oral or visual
disclosure and reduced to a writing clearly marked as being confidential that is
sent to PSW by CCSI within thirty (30) days after such oral or visual
disclosure. For the purpose of this Agreement, any Deliverable or CCSI
Enhancement shall be deemed Confidential Information.
9.3 Treatment of Confidential Information. During this Agreement and
thereafter, PSW shall keep the Confidential Information in strict confidence and
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shall not disclose it to any person, firm or corporation outside PSW, nor use
the same for any purpose other than performing the Agreement. In addition, PSW
agrees to safeguard the Confidential Information by restricting its internal
dissemination to only those employees within PSW having a need to know the
Confidential Information for purposes of this Agreement. PSW has full
responsibility to ensure that all employees who are given access to the
Confidential Information maintain the confidentiality of the Confidential
Information, whether or not such employees continue to be employees of PSW.
9.4 Exceptions to Treatment of Confidential Information. Notwithstanding
Section 9.3 above, PSW shall have no confidential obligation and no use
restriction hereunder with respect to any Confidential Information that:
(1) is already known to PSW at the time of disclosure thereof
as evidenced by written records;
(2) is or becomes publicly known through no wrongful act of PSW
at or subsequent to the time of disclosure thereof; or
(3) is permitted for release by prior written consent of CCSI.
These exceptions shall not apply to information that is classified as
Confidential Information pursuant to the Development Agreement.
9.5 Tangible Embodiments. Any and all written or tangible embodiments of
information disclosed to PSW by CCSI hereunder shall be and remain the property
of CCSI, and PSW agrees promptly to return such tangible embodiments, including
any copy thereof, to CCSI upon termination of this Agreement.
9.6 PSW Information. It is understood that CCSI does not desire to receive
any confidential information from PSW and accordingly, with respect to any
information provided by PSW, including all PSW Enhancements, CCSI shall have no
confidential obligation and no use restriction and CCSI may freely use such
information for any purpose permitted under the license granted in Section 3.1.
9.7 Intellectual Property. Except to the extent necessary to perform PSW's
obligations hereunder or as otherwise provided herein, no license or right,
expressed or implied, is hereby conveyed or granted to PSW for any invention,
patent application, patent, copyright, know-how, trade secret or other
intellectual property of CCSI.
9.8 Trademarks. No license or right, expressed or implied, is hereby
conveyed or granted to PSW to use any trademark of CCSI or any of its affiliates
in any advertising, marketing, or distribution of the Products by PSW, without
the prior express written consent of CCSI. PSW shall have the right to include
CCSI in a
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list of its customers and to refer in PSW marketing materials to the development
work PSW has performed for CCSI, provided that PSW shall obtain CCSI's prior
written consent to such usage, which consent shall not unreasonably be refused.
9.9 Enforcement. PSW understands and agrees that the obligations and
restrictions provided herein are necessary and reasonable in order to protect
the business of CCSI, and CCSI would be irreparably harmed by any breach or
threatened breach hereof. In addition to any other remedies available for breach
thereof, CCSI shall be entitled to obtain injunctive relief against a threatened
breach or continuation of any such breach, without the necessity of providing
actual damages.
9.10 Confidentiality of Terms. Neither party shall, without written
authorization of the other, disclose to any third party the terms and conditions
of this Agreement except as may be necessary to establish or assert rights
hereunder or as required by law; provided, however, that either party may, on a
confidential basis, disclose this Agreement to its accountants, attorneys, and
financing organizations.
Section 10
RELATIONSHIP TO DEVELOPMENT AGREEMENT
Nothing in this Agreement shall be construed as amending or limiting the
Development Agreement. All rights and obligations thereunder remain valid and
binding on the parties, including without limitation Section 4 of the Phase
Three Amendment to the Development Agreement.
Section 11
GENERAL
11.1 Entire Agreement. The provisions herein constitute the entire
agreement between the parties with respect to the subject matter hereof and
supersede all prior agreements, oral or written, and all other communications
relating to the subject matter hereof. No amendment or modification of any
provision of this Agreement will be effective unless set forth in a document
that purports to amend this Agreement and is executed by both parties.
11.2 Assignment. PSW shall not sell, transfer, assign, or subcontract any
right or obligation hereunder except as expressly provided herein without the
prior written consent of CCSI. Any act in derogation of the foregoing shall be
null and void. Notwithstanding the foregoing two sentences, PSW may assign this
Agreement in connection with the sale, reorganization, or other disposition of
all or substantially all of the assets of PSW or any affiliate or subsidiary or
division thereof, provided that (1) any such assignee agrees in writing with
CCSI to comply with PSW's obligations under this Agreement, and (2) in the case
of an assignment
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in which PSW survives, PSW remains subject to all of its obligations under this
Agreement. Subject to the foregoing, this Agreement shall be for the benefit of
and be binding upon the parties' successors.
11.3 Force Majeure. Except for failures to make any payment when due,
neither party shall be held liable for failure to fulfill its obligations
hereunder if such failure is due to a natural calamity, act of government, or
similar cause beyond the control of such party.
11.4 Governing Law. The validity, construction, and performance of this
Agreement shall be governed by the substantive law of the State of
California, without regard to its conflicts of law provisions.
11.5 Severability. If any provision of this Agreement is held by a court
of competent jurisdiction to be contrary to law, the remaining provisions of the
Agreement will remain in full force and effect.
11.6 Compliance with Laws and Regulations. CCSI and PSW shall comply with
all laws, rules, and regulations of competent public authorities relating to the
duties, obligations, and performance under this Agreement and shall procure all
licenses and pay all fees and other charges required thereby.
11.7 Notices. Any notices required or permitted to be made or given by
either party hereto pursuant to this Agreement will be deemed sufficiently made
or given on the fifth day after the date of mailing if sent to such party by
certified mail, postage prepaid, addressed as set forth below or to such other
address as a party shall designate by written notice given to the other party.
As of the date hereof, any notice to be given to CCSI shall be addressed
to:
Canon Computer Systems, Inc.
0000 Xxx Xxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Director, Information Systems
Canon Computer Systems, Inc.
0000 Xxx Xxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
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As of the date hereof, any notice to be given to PSW shall be addressed to:
PSW Technologies
0000 Xxxxxxx xx Xxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: President
PSW Technologies
0000 Xxxxxxx xx Xxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Vice President and General Manager
11.8 Waiver. A failure of either party to exercise any right provided for
herein shall not be deemed a waiver of any right under this Agreement.
11.9 Rights Outside of Agreements. Subject to Section 10, nothing
contained in this Agreement shall be construed as limiting rights that the
parties may enjoy outside the scope of the licenses granted and the obligations
and restrictions set forth or treated herein.
IN WITNESS THEREOF, the parties have caused this Agreement to be signed below by
their duly authorized representatives and to be effective as of the later date
written below:
PSW
Pencom Systems Incorporated
By: /s/ [Illegible]
----------------------------------------------
Date: 26 May 1996
CCSI
Canon Computer Systems, Inc.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------------
Xxxxxxx Xxxxxx, Vice President, Operations
Date: June 13, 1996
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SOFTWARE LICENSING AGREEMENT
SCHEDULE A
Confidential treatment is requested for pages A-1 through A-14 [14 pages] of
Exhibit 10.6. The omitted pages have been filed with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act.
SOFTWARE LICENSING AGREEMENT
SCHEDULE B
Minimum Terms for Customer License Agreement
(The following terms are the minimum terms which will be included in any
Customer license agreement. In the minimum terms, PSW Technologies will be
referred to as PSW and the end user licensing the Product will be referred to as
CLIENT.)
Section 1
DEFINITION OF TERMS
The definition of terms set forth in this Section 1 shall apply in this
Agreement (in addition to terms expressly defined elsewhere herein) including
any and all exhibits, addenda, and amendments made to or incorporated herein now
or in the future.
1.1 "Deliverables." Any and all tangible products delivered by PSW for
CLIENT under this Agreement, including all object diagrams, functional
specifications, prototypes, reports, conversion tools, class libraries, the
"source" code and object code, and all necessary Documentation therefor and
further including enhancements, modifications, and corrections made to the
Deliverables by PSW pursuant to support, training, and maintenance services
provided to CLIENT by PSW.
1.2 "Documentation." All textual material relating to the Deliverables,
including flow charts, operating instructions, and related technical
information. Documentation shall include user manuals, help text, training
materials, and sample source code used for training and documentation purposes.
1.3 "PSW Systems Library." Those Deliverables in Schedule 1 that are
specified to be part of the PSW Systems Library.
1.4 "PSW Business Library." Those Deliverables in Schedule 1 that are
specified to be part of the PSW Business Library.
1.5 "PSW Object Library." The combination of the PSW Systems Library and
the PSW Business Library.
1.6 "CLIENT Enhancements." Changes, corrections, modifications, or
additions, including all new releases and applications, made by CLIENT to the
PSW Object Library and related Documentation.
B-1
1.7 "PSW Enhancements." Changes, corrections, modifications, or additions,
including all new releases and applications, made by PSW to the PSW object
Library and related Documentation.
1.8 "Computer Business." The Computer Business shall be defined to include
the research, development, production, marketing, selling, distribution, or
leasing of computer hardware, computer hardware peripherals, integrated document
management systems or cameras, or the performance of development, consulting,
training, or maintenance services relating to computer hardware, computer
hardware peripherals, integrated document management systems, or cameras.
1.9 "PSW Licensors." Other parties who have licensed portions of the
Deliverables to PSW under separate agreements.
Section 2
GRANT AND SCOPE OF RIGHTS FROM PSW TO CLIENT
2.1 Scope of License. PSW grants to CLIENT the right to use, execute,
modify, and reproduce, and distribute for internal use the licensed portions of
the PSW Object Library as specified in Schedule 1 and any PSW Enhancements.
Schedule 2 specifies the extent of the CLIENT's business as it pertains to this
license.
2.2 License Restrictions. CLIENT is not authorized to distribute or
sublicense the PSW Object Library or PSW Enhancements to any party currently in
or planning to enter the Computer Business as defined in Section 1. CLIENT is
not authorized to operate a service bureau utilizing any Deliverables, CLIENT
Enhancements, or PSW Enhancements.
2.3 Representation and Warranty of CLIENT Business. If CLIENT is licensing
any portion of the PSW Business Library, CLIENT represents and warrants by
signing this Agreement that neither it nor its subsidiaries, affiliates, or
divisions is are not currently in, nor planning to enter the Computer Business
as defined in Section 1. If CLIENT is licensing any portion of the PSW Business
Library and either it or any of its subsidiaries, affiliates, or divisions
desires to enter the Computer Business, then prior to entering such Computer
Business CLIENT shall return all licensed portions of the PSW Business Library
to PSW and shall provide a sworn statement to PSW averring that no copies of the
PSW Business Library remain on any computer system or otherwise within its
possession or control.
(Sections 3 and 4 intentionally omitted)
B-2
Section 5
CONFIDENTIAL INFORMATION
5.1 PSW Information. In connection with this Agreement, PSW has provided
and shall provide CLIENT with certain information that is proprietary and
confidential to PSW or the PSW Licensors and necessary or useful for CLIENT to
exploit the licenses granted hereunder.
5.2 Confidentiality. The term "Confidential Information" as used herein
shall mean any information disclosed by PSW to CLIENT pursuant to Section 5.1
above in a written or other tangible form clearly identified as being
confidential. Oral or visual information shall not be considered as Confidential
Information unless it is designated confidential at the time of oral or visual
disclosure and reduced to a writing clearly marked as being confidential that is
sent to CLIENT by PSW within thirty (30) days after such oral or visual
disclosure. For the purpose of this Agreement, any Deliverable or PSW
Enhancement shall be deemed Confidential Information.
5.3 Treatment of Confidential Information. During this Agreement and
thereafter, CLIENT shall keep the Confidential Information in strict confidence
and shall not disclose it to any person, firm or corporation outside CLIENT, nor
use the same for any purpose other than performing the Agreement. In addition,
CLIENT agrees to safeguard the Confidential Information by restricting its
internal dissemination to only those employees within CLIENT having a need to
know the Confidential Information for purposes of this Agreement. CLIENT has
full responsibility to ensure that all employees who are given access to the
Confidential Information maintain the confidentiality of the Confidential
Information, whether or not such employees continue to be employees of CLIENT.
5.4 Exceptions to Treatment of Confidential Information. Notwithstanding
Section 5.3 above, CLIENT shall have no confidential obligation and no use
restriction hereunder with respect to any Confidential Information that:
(1) is already known to CLIENT at the time of disclosure thereof as
evidenced by written records;
(2) is or becomes publicly known through no wrongful act of CLIENT at
or subsequent to the time of disclosure thereof; or
(3) is permitted for release by prior written consent of PSW.
5.5 Tangible Embodiments. Any and all written or tangible embodiments of
information disclosed to CLIENT by PSW hereunder shall be and remain the
B-3
property of PSW, and CLIENT agrees promptly to return such tangible embodiments,
including any copy thereof, to PSW upon termination of this Agreement.
5.6 Intellectual Property. Except to the extent necessary to perform
CLIENT's obligations hereunder or as otherwise provided herein, no license or
right, expressed or implied, is hereby conveyed or granted to CLIENT for any
invention, patent application, patent, copyright, know-how, trade secret or
other intellectual property of PSW or PSW Licensors.
5.7 Trademarks. No license or right, expressed or implied, is hereby
conveyed or granted to CLIENT to use any trademark of PSW without the prior
express written consent of PSW or any trademark of any PSW Licensors without the
prior express written consent of such PSW Licensor.
5.8 Enforcement. CLIENT understands and agrees that the obligations and
restrictions provided herein are necessary and reasonable in order to protect
the business of PSW and the PSW Licensors, and PSW and the PSW Licensors would
be irreparably harmed by any breach or threatened breach hereof. In addition to
any other remedies available for breach thereof, PSW and the PSW Licensors shall
be entitled to obtain injunctive relief against a threatened breach or
continuation of any such breach, without the necessity of providing actual
damages.
5.9 Confidentiality of Other Parties. CLIENT acknowledges that portions of
the PSW Object Library may be licensed by PSW from other parties. To the degree
that the identity of and terms of those license agreements are made known to
CLIENT for the execution of this Agreement, CLIENT shall keep this Confidential
Information in strict confidence and shall not disclose it to any person, firm
or corporation except as required to execute this Agreement; provided, however,
that either party may, on a confidential basis, disclose those Agreements to its
accountants, attorneys, and financing organizations.
Section 6
REPRESENTATIONS AND WARRANTIES
CLIENT acknowledges and agrees that any representations and warranties regarding
the Deliverables are provided by PSW and that its sole remedy for breach
hereunder shall be against PSW and not against the PSW Licensors. THE PSW
LICENSORS EXPRESSLY DISCLAIM ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO
THE DELIVERABLES OR THE RESULTS OBTAINED FROM USING THE SAME, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
B-4
Section 7
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL PSW OR THE PSW LICENSORS BE LIABLE FOR SPECIAL,
EXEMPLARY, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO
LEGAL FEES, LOSS OF PROFITS, LOSS OR INACCURACY OF DATA, OR LOSS RESULTING FROM
BUSINESS DISRUPTION, EVEN IF PSW OR THE PSW LICENSORS HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
Section 8
THIRD-PARTY BENEFICIARY
CLIENT acknowledges that the Deliverables and Confidential Information include
that of the PSW Licensors and that the PSW Licensors are third-party
beneficiaries of this Agreement with all the rights of PSW to enforce the
obligations of this Agreement against CLIENT.
Section 9
U.S. GOVERNMENT RESTRICTED RIGHTS
If this license is acquired under a U.S. Government contract, use, duplication
or disclosure by the U.S. Government is subject to restrictions as set forth in
DFARS 252.227-7013(c)(ii) for Department of Defense contracts and as set forth
in FAR 52.227-19(a)-(d) for civilian agency contracts. PSW and the PSW Licensors
reserve all unpublished rights under the United States copyright laws.
(remainder of Customer license agreement intentionally omitted)
B-5
SOFTWARE LICENSING AGREEMENT
SCHEDULE B
Minimum Terms for Customer License Agreement
Schedule 1
(include Deliverables containing relevant objects from Schedule A of the
Software License Agreement between CCSI and PSW and indicate which objects they
contain.)
B-6
SOFTWARE LICENSING AGREEMENT
SCHEDULE B
Minimum Terms for Customer License Agreement
Schedule 2
(description of the locations, sites, divisions, and legal entities defining
the boundaries of the CLIENT's business for purposes of this agreement)
B-7
SOFTWARE LICENSING AGREEMENT
SCHEDULE C
Minimum Terms for Reseller Agreement
(The following terms are the minimum terms which will be included in the
Reseller Agreement. In the minimum terms, Reseller will be referred to as
RESELLER, and the Customer license agreement will be referred to as an End User
License Agreement. The Reseller agreement will serve as an extension to the
Customer license agreement, which is attached as Schedule B of the Software
Licensing Agreement. All Resellers must be licensed first as a Customer.)
WITNESSETH:
WHEREAS, pursuant to that certain End User License Agreement between PSW
and RESELLER dated _____________, RESELLER desires the right to resell portions
of the Deliverables and PSW Object Library to other parties.
WHEREAS, PSW is willing and able to grant such rights and licenses on the
terms and conditions set forth herein;
Section 1
DEFINITION OF TERMS
The definition of terms set forth in this Section 1 shall apply in this
Agreement (in addition to terms expressly defined elsewhere herein) including
any and all exhibits, addenda, and amendments made to or incorporated herein now
or in the future.
1.1 "De1iverables." Any and all tangible products delivered by PSW for
RESELLER under this Agreement, including all object diagrams, functional
specifications, prototypes, reports, conversion tools, class libraries, the
"source" code and object code, and all necessary Documentation therefor and
further including enhancements, modifications, and corrections made to the
Deliverables by PSW pursuant to support, training, and maintenance services
provided to RESELLER by PSW.
1.2 "Documentation." All textual material relating to the Deliverables,
including flow charts, operating instructions, and related technical
information. Documentation shall include user manuals, help text, training
materials, and sample source code used for training and documentation purposes.
C-1
1.3 "PSW Systems Library." Those Deliverables in Schedule 1 that are
specified to be part of the PSW Systems Library.
l.4 "PSW Business Library." Those Deliverables in Schedule 1 that are
specified to be part of the PSW Business Library.
1.5 "PSW Object Library." The combination of the PSW Systems Library and
the PSW Business Library.
1.6 "PSW Enhancements." Changes, corrections, modifications, or additions,
including all new releases and applications, made by PSW to the PSW Object
Library and related Documentation.
1.7 "RESELLER Enhancements." Changes, corrections, modifications, or
additions, including all new releases and applications, made by RESELLER to the
PSW Object Library and related Documentation.
1.8 "Computer Business." The Computer Business shall be defined to include
the research, development, production, marketing, selling, distribution, or
leasing of computer hardware, computer hardware peripherals, integrated document
management systems or cameras, or the performance of development, consulting,
training, or maintenance services relating to computer hardware, computer
hardware peripherals, integrated document management systems, or cameras.
1.9 "PSW Licensors". Other parties who have licensed portions of the
Deliverables to PSW under separate agreements.
1.10 "Customer." Any end user customers to whom RESELLER directly markets
and sells the Product and who sign an End User License Agreement as minimally
defined in Schedule 2.
1.11 "Product" Any deliverables licensed by PSW that includes the Object
21 Library, CCSI Enhancements, PSW Enhancements, Documentation, or other
Deliverables. "Product" may include one or more separately priced PSW
offerings.
1.12 "End User License Agreement." The license agreement signed by an end
user customer of the reseller as minimally specified in Schedule 2.
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Section 2
GRANT AND SCOPE OF RIGHTS FROM PSW TO RESELLER
2.1 Scope of Rights Granted. PSW hereby grants to RESELLER, and RESELLER,
hereby accepts, a nontransferable, nonexclusive right to distribute the
Deliverables to Customers.
2.2 Rights Restrictions. RESELLER is not authorized to distribute or
sublicense the PSW Business Library or PSW Enhancements to any party currently
in or planning to enter the Computer Business as defined in Section 1.
2.3 End User License Agreement. Any distribution of the Product by
RESELLER shall be pursuant to the terms and conditions of the End User License
Agreement in the form attached hereto as Schedule 2. The terms and conditions of
such End User License shall serve as the minimum documentation distributed by
RESELLER defining each Customer's rights and obligations regarding the Product
and RESELLER agrees to provide in a conspicuous manner one copy of the End User
License with each Product. Although RESELLER shall not be liable to PSW for any
Customer's failure to comply with the terms and conditions of the End User
License agreement, RESELLER agrees to report to PSW any known or suspected
violation(s) of the Customer license agreement and to reasonably cooperate with
PSW in any enforcement actions taken by PSW.
Section 3
OWNERSHIP
3.1 Continuing Rights. PSW and PSW Licensors shall retain full ownership
of and full rights to continue to use and market the Deliverables and the PSW
Enhancements and all rights, title and interest in and to all copyrights, patent
rights or trade secret rights associated with the Deliverables and the PSW
Enhancements.
3.2 Copyrights. RESELLER shall not remove any existing copyright or other
proprietary rights notices from the PSW Object Library, PSW Enhancements, or the
Deliverables.
Section 4
TERM
4.1 Basic Term. This agreement shall be effective on the date first above
written and shall remain in force until __________________ (date when RESELLER
rights terminate).
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4.2 Loss of Rights by PSW. In the event that PSW shall lose any of its
sublicenses or rights due to breach, bankruptcy, insolvency, or any other event,
the rights and obligations in this agreement shall continue until the
termination date.
Section 5
CONFIDENTIAL INFORMATION
Treatment of Confidential Information as defined in the End User License
agreement shall apply to this Agreement as well.
Section 6
REPRESENTATIONS AND WARRANTIES
RESELLER acknowledges and agrees that any representations and warranties
regarding the Deliverables are provided by PSW and that its sole remedy for
breach hereunder shall be against PSW and not against the PSW Licensors. THE PSW
LICENSORS EXPRESSLY DISCLAIM ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO
THE DELIVERABLES OR THE RESULTS OBTAINED FROM USING THE SAME, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Section 7
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL PSW OR THE PSW LICENSORS BE LIABLE FOR SPECIAL,
EXEMPLARY, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO
LEGAL FEES, LOSS OF PROFITS, LOSS OR INACCURACY OF DATA, OR LOSS RESULTING FROM
BUSINESS DISRUPTION, EVEN IF PSW OR THE PSW LICENSORS HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
Section 8
THIRD-PARTY BENEFICIARY
RESELLER acknowledges that the Deliverables and Confidential Information include
that of the PSW Licensors and that the PSW Licensors are third-party
beneficiaries of this Agreement with all the rights of PSW to enforce the
obligations of this Agreement against RESELLER.
C-4
Section 9
U.S. GOVERNMENT RESTRICTED RIGHTS
If this license is acquired under a U.S. Government contract, use, duplication
or disclosure by the U.S. Government is subject to restrictions as set forth in
DFARS 252.227-7013(c)(ii) for Department of Defense contracts and as set forth
in FAR 52.227-19(a)-(d) for civilian agency contracts. PSW and the PSW Licensors
reserve all unpublished rights under the United States copyright laws.
(remainder of reseller agreement intentionally omitted)
C-5
SOFTWARE LICENSING AGREEMENT
SCHEDULE C
Schedule 1
(include Deliverables containing relevant objects from Schedule A of the
Software License Agreement between CCSI and PSW and indicate which objects they
contain)
C-6
SOFTWARE LICENSING AGREEMENT
SCHEDULE C
Minimum Terms for Reseller Agreement
Schedule 2 - Minimum Terms for Customer License Agreement
(The following terms are the minimum terms for Customers which will be included
in any Customer license agreement conveyed by a PSW Reseller. In the minimum
terms, the Reseller will be referred to as RESELLER and the Customer the Product
will be referred to as CLIENT.)
Section 1
DEFINITION OF TERMS
The definition of terms set forth in this Section 1 shall apply in this
Agreement (in addition to terms expressly defined elsewhere herein) including
any and all exhibits, addenda, and amendments made to or incorporated herein now
or in the future.
1.1 "Deliverables." Any and all tangible products delivered by RESELLER
for CLIENT under this Agreement, including all object diagrams, functional
specifications, prototypes, reports, conversion tools, class libraries, the
"source" code and object code, and all necessary Documentation therefor and
further including enhancements, modifications, and corrections made to the
Deliverables by RESELLER pursuant to support, training, and maintenance services
provided to CLIENT by RESELLER.
1.2 "Documentation." All textual material relating to the Deliverables,
including flow charts, operating instructions, and related technical
information. Documentation shall include user manuals, help text, training
materials, and sample source code used for training and documentation purposes.
1.3 "RESELLER Systems Library." Those Deliverables in Schedule 1 that are
specified to be part of the RESELLER Systems Library.
1.4 "RESELLER Business Library." Those Deliverables in Schedule 1 that are
specified to be part of the RESELLER Business Library.
1.5 "RESELLER Object Library." The combination of the RESELLER Systems
Library and the RESELLER Business Library.
C-7
1.6 "CLIENT Enhancements." Changes, corrections, modifications, or
additions, including all new releases and applications, made by CLIENT to the
RESELLER Object Library and related Documentation.
1.7 "RESELLER Enhancements." Changes, corrections, modifications, or
additions, including all new releases and applications, made by RESELLER to the
RESELLER Object Library and related Documentation.
1.8 "Computer Business." The Computer Business shall be defined to include
the research, development, production, marketing, selling, distribution, or
leasing of computer hardware, computer hardware peripherals, integrated document
management systems or cameras, or the performance of development, consulting,
training, or maintenance services relating to computer hardware, computer
hardware peripherals, integrated document management systems, or cameras.
1.9 "RESELLER Licensors." Other parties who have licensed portions of the
Deliverables to RESELLER under separate agreements.
Section 2
GRANT AND SCOPE OF RIGHTS FROM RESELLER TO CLIENT
2.1 Scope of License. RESELLER hereby grants to CLIENT the right to use,
execute, modify, and reproduce, and distribute for internal use the licensed
portions of the RESELLER Object Library as specified in Schedule 1 and any
RESELLER Enhancements. Schedule 2 specifies the extent of the CLIENT's business
as it pertains to this license.
2.2 License Restrictions. CLIENT is not authorized to distribute or
sublicense the RESELLER Object Library or RESELLER Enhancements to any party
currently in or planning to enter the Computer Business as defined in Section 1.
CLIENT is not authorized to operate a service bureau utilizing any Deliverables,
CLIENT Enhancements, or RESELLER Enhancements.
2.3 Representation and Warranty of CLIENT Business. If CLIENT is licensing
any portion of the RESELLER Business Library, CLIENT represents and warrants by
signing this Agreement that neither it nor its subsidiaries, affiliates, or
divisions are not currently in, nor planning to enter the Computer Business
as defined in Section 1. If CLIENT is licensing any portion of the RESELLER
Business Library and either it or any of its subsidiaries, affiliates, or
divisions desires to enter the Computer Business, then prior to entering such
Computer Business CLIENT shall return all licensed portions of the RESELLER
Business Library to RESELLER and shall provide a sworn statement to RESELLER
averring that no copies of the
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RESELLER Business Library remain on any computer system or otherwise within its
possession or control.
Section 3
OWNERSHIP
3.1 RESELLER Enhancements. RESELLER shall own all RESELLER Enhancements.
3.2 CLIENT Enhancements. CLIENT shall own all CLIENT Enhancements.
3.3 Continuing Rights. RESELLER and RESELLER Licensors shall retain full
ownership of and full rights to continue to use and market the Deliverables and
RESELLER Enhancements and all rights, title and interest in and to all
copyrights, patent rights, and trade secret rights associated with the
Deliverables and RESELLER Enhancements.
3.4 Copyrights. CLIENT shall not remove any existing copyright or other
proprietary rights notices from the RESELLER Object Library, RESELLER
Enhancements or the Deliverables.
Section 4
TERM
4.1 Loss of Rights by RESELLER. In the event that RESELLER shall lose any
of its sublicenses or rights due to breach, bankruptcy, insolvency, or any other
event, the rights and obligations in this agreement shall continue.
Section 5
CONFIDENTIAL INFORMATION
5.1 RESELLER Information. In connection with this Agreement, RESELLER has
provided and shall provide CLIENT with certain information that is proprietary
and confidential to RESELLER or the RESELLER Licensors and necessary or useful
for CLIENT to exploit the licenses granted hereunder.
5.2 Confidentiality. The term "Confidential Information" as used herein
shall mean any information disclosed by RESELLER to CLIENT pursuant to Section
5.1 above in a written or other tangible form clearly identified as being
confidential. Oral or visual information shall not be considered as Confidential
Information unless it is designated confidential at the time of oral or visual
disclosure and
C-9
reduced to a writing clearly marked as being confidential that is sent to CLIENT
by RESELLER within thirty (30) days after such oral or visual disclosure. For
the purpose of this Agreement, any Deliverable or RESELLER Enhancement shall be
deemed Confidential Information.
5.3 Treatment of Confidential Information. During this Agreement and
thereafter, CLIENT shall keep the Confidential Information in strict confidence
and shall not disclose it to any person, firm or corporation outside CLIENT, nor
use the same for any purpose other than performing the Agreement. In addition,
CLIENT agrees to guard the Confidential Information by restricting its internal
dissemination to only those employees within CLIENT having a need to know the
Confidential Information for purposes of this Agreement. CLIENT has full
responsibility to ensure that all employees who are given access to the
Confidential Information maintain the confidentiality of the Confidential
Information, whether or not such employees continue to be employees of CLIENT.
5.4 Exceptions to Treatment of Confidential Information.
Notwithstanding Section 5.3 above, CLIENT shall have no confidential
obligation and no use restriction hereunder with respect to any Confidential
Information that
(1) is already known to CLIENT at the time of disclosure thereof as
evidenced by written records;
(2) is or becomes publicly known through no wrongful act of CLIENT at
or subsequent to the time of disclosure thereof; or
(3) is permitted for release by prior written consent of RESELLER.
5.5 Tangible Embodiments. Any and all written or tangible embodiments of
information disclosed to CLIENT by RESELLER hereunder shall be and remain the
property of RESELLER, and CLIENT agrees promptly to return such tangible
embodiments, including any copy thereof, to RESELLER upon termination of this
Agreement.
5.6 Intellectual Property. Except to the extent necessary to perform
CLIENT's obligations hereunder or as otherwise provided herein, no license or
right, expressed or implied, is hereby conveyed or granted to CLIENT for any
invention, patent application, patent, copyright, know-how, trade secret or
other intellectual property of RESELLER or RESELLER Licensors.
5.7 Trademarks. No license or right, expressed or implied, is hereby
conveyed or granted to CLIENT to use any trademark of RESELLER without the prior
express written consent of RESELLER or any trademark of any RESELLER Licensor
without the prior express written consent of such RESELLER Licensor.
C-10
5.8 Enforcement. CLIENT understands and agrees that the obligations and
restrictions provided herein are necessary and reasonable in order to protect
the business of RESELLER and the RESELLER Licensors, and RESELLER and the
RESELLER Licensors would be irreparably harmed by any breach or threatened
breach hereof. In addition to any other remedies available for breach thereof,
RESELLER and the RESELLER Licensors shall be entitled to obtain injunctive
relief against a threatened breach or continuation of any such breach, without
the necessity of providing actual damages.
5.9 Confidentiality of Other Parties. CLIENT acknowledges that portions of
the RESELLER object Library may be licensed by RESELLER from other parties. To
the degree that the identity of and terms of those license agreements are made
known to CLIENT for the execution of this Agreement, CLIENT shall keep this
Confidential Information in strict confidence and shall not disclose it to any
person, firm or corporation except as required to execute this Agreement;
provided, however, that either party may, on a confidential basis, disclose
those Agreements to its accountants, attorneys, and financing organizations.
Section 6
REPRESENTATIONS AND WARRANTIES
CLIENT acknowledges and agrees that any representations and warranties regarding
the Deliverables are provided by RESELLER and that its sole remedy for breach
hereunder shall be against RESELLER and not against the Reseller Licensors. THE
RESELLER LICENSORS EXPRESSLY DISCLAIM ANY WARRANTY, EXPRESS OR IMPLIED, WITH
RESPECT TO THE DELIVERABLES OR THE RESULTS OBTAINED FROM USING THE SAME,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
Section 7
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL RESELLER OR THE RESELLER LICENSORS BE LIABLE FOR
SPECIAL, EXEMPLARY, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT
LIMITED TO LEGAL FEES, LOSS OF PROFITS, LOSS OR INACCURACY OF DATA, OR LOSS
RESULTING FROM BUSINESS DISRUPTION, EVEN IF RESELLER OR THE RESELLER LICENSORS
HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
C-11
Section 8
THIRD-PARTY BENEFICIARY
CLIENT acknowledges that the Deliverables and Confidential Information include
that of the Reseller Licensors and that the Reseller Licensors are third-party
beneficiaries of this Agreement with all the rights of Reseller to enforce the
obligations of this Agreement against CLIENT.
Section 9
U.S. GOVERNMENT RESTRICTED RIGHTS
If this license is acquired under a U.S. Government contract, use, duplication
or disclosure by the U.S. Government is subject to restrictions as set forth in
DFARS 252.227-7013(c)(ii) for Department of Defense contracts and as set forth
in FAR 52.227-19(a)-(d) for civilian agency contracts. RESELLER and the RESELLER
Licensors reserve all unpublished rights under the United States copyright laws.
(remainder of the reseller's Customer license agreement intentionally omitted)
(Schedules 1 and 2 to this End User Agreement are the same as Schedules 1 and 2
to PSW's end user agreement, which is Schedule B to Software Licensing
Agreement)
C-12
