Exhibit 10.9
DEPLOYMENT PRODUCT
LICENSE AGREEMENT
THIS DEPLOYMENT PRODUCT LICENSE AGREEMENT is effective as of this th
day of , 199 and is entered into between TRANSFORMATION
PROCESSING INC. ("TPI"), a corporation having its principal place of business
at the address set forth below, and (the "User") having a place of business
at the address set forth below.
RECITALS
A. The User has certain software libraries, data and applications (the "User
Applications") which execute on the computer system described in Schedule A
(the "Target Computer System").
B. The User Applications use the technology licensed by TPI so that they will
execute under the Target Computer System.
C. The User Applications will only execute on the Target Computer System, in
conjunction with certain software function support licensed by TPI (the
"Deployment Products").
D. The execution of this license agreement is a condition of TPI providing the
User with the Deployment Products.
THE PARTIES HERETO AGREE AS FOLLOWS:
1. DELIVERY OF DEPLOYMENT PRODUCT: The Deployment Products include software
functionality for a computer called a Server ("Server Software"). The
Deployment Products also include software functionality that accommodates
end user access to that functionality provided by the Server Software
("Client Software"). The Deployment Products are available under license
from TPI for a specified number of concurrent users for both the Server
Software and Client Software as specified in Schedule B. The license
grants the User to install one (1) copy of the Server Software on the
computer called a Server and to install the Client Software on the User's
computer and workstations licensed under this Agreement.
2. SEPARATION OF COMPONENTS: The Deployment Products (Server Software and
Client Software) are licensed as a single product. The Deployment Products
and its component parts may not be separated for use by more than one (1)
User. The Deployment Products and its component parts may not be separated
for use on more than one (1) computer or server.
3. DEPLOYMENT PRODUCT LICENSE: There is an initial license fee and annual
support fees which must be paid under the Deployment Product License
Agreement, each of which is calculated in part on the number of concurrent
system users. The User may resell or install the
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TRANSFORMATION PROCESSING INC. DATE DEPLOYMENT PRODUCT LICENSE AGREEMENT
Deployment Products on more than one (1) computer or server provided that a
separate Deployment Product License Agreement is entered into for each such
installation.
(a) The Server Software and the components and their updates is
licensed for one (1) and the same Server.
(b) The Client Software and the components and their updates is
licensed for one (1) and the same client.
4. RESTRICTIONS: The User may only use the Deployment Products so long as
this license is in force. The User shall not:
(a) rent, lease, loan or distribute the Deployment Products; or
(b) use, copy, modify, merge or transfer the Deployment Products, or
any copy thereof, in whole or in part, except as expressly
provided in this agreement.
This license is restricted to the use of the Deployment Products in
conjunction with that number of concurrent system users on the computer
system described in Schedule A. If the User wishes to upgrade this license
to permit the use of the Deployment Products in conjunction with a larger
number of concurrent system users or on a system other than the computer
system described in Schedule A, TPI will upgrade this license upon payment
and execution of such supplementary license agreements.
5. SUPPORT: Subject to the terms of this agreement, TPI will provide the User
with the following support services for the Deployment Products:
(a) TPI will provide advice and assistance in the use of the
Deployment Products; and
(b) TPI will use all reasonable efforts to correct any defect in the
execution of the Deployment Products.
The support services will be provided by telephone (with long distance
charges payable by the User) during regular business hours of the TPI
office providing support services.
The User must be willing to assist TPI with additional information or
provide access to the User Applications which TPI may reasonably request.
During the first ninety (90) days following the delivery to the User, there
will be no charge for the support services. Thereafter, there will be no
charge for the support services if the support fees identified in the
Deployment Product License Agreement are current. Otherwise, TPI shall be
entitled to charge the User for support time at TPI s applicable hourly
rate. Charges will apply if TPI is asked to resolve problems caused by the
User not operating the Deployment Products as described in the user manual
"online" documentation and/or TPI provided materials or when TPI determines
that the cause of the problem is by nature the responsibility of the User.
Any supplemental software code and/or updates provided to the User as part
of the Support Services shall be considered part of the Deployment Products
and are subject to the terms and conditions of this Agreement. With
respect to technical information Users provide to TPI as part of the
Support Services, TPI may use such information for its business purposes,
including product support and development.
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TRANSFORMATION PROCESSING INC. DATE DEPLOYMENT PRODUCT LICENSE AGREEMENT
The User is expected to be familiar with the operating systems that the
Deployment Products execute under, the third-party database management
system uses for data storage, and any other third-party software utilized.
TPI may charge the User for any support services (whether during the first
ninety (90) days or otherwise) which arise out of the User's
misunderstanding of the Target Computer System as described in Schedule A.
6. LICENSES FEES: The User agrees to pay to TPI the one-time initial license
fee and the annual support fees described in Schedule B as the same become
due under this Agreement. The one-time initial license fee is due upon
execution of this Agreement. The first annual support fee is payable upon
execution of this Agreement. Subsequent annual support fees are due on
each anniversary of the date of this Agreement.
7. CURRENCY, TAXES AND PAYMENT TERMS: All references in this agreement to
dollars are expressed in U.S.A. currency except where otherwise noted and
all amounts payable to TPI shall be paid in U.S.A. dollars. The fees
payable under this Agreement do not include any taxes or duties which, if
applicable, will be billed in addition to the fees and shall be payable by
the User upon invoice. All amounts owing under this Agreement which are
not paid when due shall bear interest at the lesser of the highest rate
permitted at law and the Prime Rate plus 2% per annum until paid in full.
The Prime Rate shall mean the prime commercial lending rate of interest per
annum charged from time to time during the currency of this Agreement by
the Bank of Montreal (the "Bank") for demand loans in Canadian funds made
at the main branch of the Bank in Toronto, Ontario (and if at any time
there is more than one (1) such prime commercial lending rate of the Bank,
the Prime Rate shall be the highest prime commercial lending rate of the
Bank).
8. CONFIDENTIALITY: The User acknowledges that the Deployment Products and the
whole of the ideas, concepts, know-how and techniques contained therein
(collectively the "Confidential Information") are trade secrets which
required substantial efforts to create and develop. The User agrees not to
use the Confidential Information except as permitted under this Agreement.
The User may not reverse engineer, decompile, or disassemble the Deployment
Products, except and only to the extent that such activity is expressly
permitted by applicable law, notwithstanding this limitation. The User
agrees to hold the Confidential Information in confidence with the same
degree of care it uses with its own confidential information (using at
least a reasonable standard of care) and not to disclose such Confidential
Information in any form whatsoever except to those of its employees and
subcontractors who have a need to use the same in the normal course of
their work and who have agreed to abide by the provisions of this
Agreement.
9. DISCLAIMER OF WARRANTY: THE DEPLOYMENT PRODUCTS ARE PROVIDED "AS IS" AND
WITHOUT WARRANTY OF ANY KIND. TPI DISCLAIMS ALL WARRANTIES, EITHER EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THE WARRANTY
AGAINST LATENT DEFECTS; ANY WARRANTY AGAINST INFRINGEMENT WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, TPI MAKES NO WARRANTY: (A) WITH RESPECT
TO THE CHARACTERISTICS OF EXECUTION OF THE DEPLOYMENT PRODUCTS (INCLUDING
RESPONSE TIME, CHARACTERISTICS OF USE OF MACHINE TIME AND OTHER OPERATING
FUNCTIONS WITH ANY PARTICULAR EQUIPMENT); (B) THAT THE FUNCTIONS CONTAINED
IN THE DEPLOYMENT PRODUCTS WILL
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TRANSFORMATION PROCESSING INC. DATE DEPLOYMENT PRODUCT LICENSE AGREEMENT
SATISFY THE NEEDS OF THE USER; (C) THAT THE OPERATION OF THE DEPLOYMENT
PRODUCT WILL BE ERROR FREE OR UNINTERRUPTED; OR (D) THAT DEFECTS AND
PROGRAMMING ERRORS IN THE DEPLOYMENT PRODUCTS WILL BE DETECTED OR
CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TPI OR A TPI
REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF
THIS WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY.
10. LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE,
SHALL TPI OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OR DAMAGE WHATSOEVER THAT
RESULTS FROM THE USE OF OR INABILITY TO USE THE DEPLOYMENT PRODUCTS,
INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE OR PROFITS,
BUSINESS INTERRUPTION, LOSS OF SOFTWARE OR INFORMATION, FAILURE TO REALIZE
EXPECTED SAVINGS OR ANY OTHER PECUNIARY LOSS OF ANY NATURE WHATSOEVER
INCLUDING INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF TPI OR A TPI
REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SAME. SOME
JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION
MAY NOT APPLY. IN NO EVENT SHALL THE TOTAL LIABILITY OF TPI TO THE USER
FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION UNDER ANY LEGAL THEORY
(INCLUDING, WITHOUT LIMITATION, CONTRACT, FUNDAMENTAL BREACH OR BREACH OF A
FUNDAMENTAL TERM, TORT OR NEGLIGENCE) EXCEED THE AMOUNTS PAID BY THE USER
TO TPI UNDER THIS AGREEMENT DURING THE YEAR PRECEDING THE MAKING OF THE
CLAIM.
11. RESPONSIBILITY OF USER: The User is the only party responsible for the use
of the Deployment Products. The User agrees to use the necessary
verification controls and operating techniques to satisfy its needs with
respect to error detection, security, back-up and restart in case of
failure or destruction of the User s software, the Deployment Products or
any of the User s files and data. TPI strongly recommends that the User
test the Deployment Products before operation with the User s software and
data.
12. INDEMNIFICATION BY USER: The User agrees to defend TPI against any action,
suit or claim against TPI by any third party resulting from the use of, or
inability to use, the Deployment Products by the User and the User agrees
to indemnify and hold TPI harmless from and against all damages,
liabilities, losses and expenses, including reasonable attorney s fees and
all court costs, incurred by TPI as a result of any such action, suit or
claim.
13. TERM: This Agreement and the license granted hereunder shall come into
force upon execution of this Agreement and payment of the initial license
fee, and shall remain in force until this Agreement is terminated. The
User may terminate this Agreement at any time by discontinuing any further
use of the Deployment Products and returning to TPI all copies of the
Deployment Products. TPI shall be entitled to terminate this Agreement by
giving written notice of termination if the User fails to pay any amount
owing under this Agreement or fails to abide by any of the terms of this
agreement and such failure continues for ten (10) days after written notice
to remedy such failure is given. This Agreement will automatically
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TRANSFORMATION PROCESSING INC. DATE DEPLOYMENT PRODUCT LICENSE AGREEMENT
terminate without notice if the User becomes bankrupt or insolvent, or
makes an assignment for the benefit of its creditors, or if a liquidation
order is made against the User or if the User takes advantage of any
statute relating to insolvency, bankruptcy, or arrangements with creditors.
Upon termination of this Agreement, the User shall cease all further use of
the Deployment Products and return to TPI all copies of the Deployment
Products in its possession or control. Instead of such return, TPI may, at
its option, require the User to destroy such copies and provide TPI with
satisfactory evidence of such destruction. Those provisions of this
Agreement which by their nature are intended to survive the termination of
this Agreement (including, without limitation, Sections 8, 9 and 11) shall
survive the termination of this Agreement.
14. NOTICE: Any notice required or permitted under this Agreement shall be
given to the address for notice set out below or to such other address of
which notice is given. Such notice may be given by personal delivery
(including courier delivery), prepaid mail or facsimile. Such notice shall
be considered received on the date of actual receipt at the address for
notice.
15. ASSIGNMENT: The license granted by this Agreement extends only to the User
and not to any other person, firm, partnership, corporation or other
entity, even if such may constitute a subsidiary or an affiliate of the
User. This Agreement can only be assigned with the prior written consent
of TPI and upon the conditions stipulated by TPI.
16. SOFTWARE TRANSFER: The User may permanently transfer all of the Users
rights under this Agreement, provided the User retains no copies, transfers
all of the Deployment Products (including all component parts, the media
and printed materials, any upgrades, and this Agreement), notice of the
User's name, company and address and the name, company and the address of
the company to whom the User is transferring the rights granted herein, and
the recipient agrees to the terms of this Agreement. If the Deployment
Products have been upgraded by TPI, any transfer must include all prior
versions of the Deployment Products. If the Deployment Products are
received as part of a subscription, any transfer must include all prior
deliverables of Deployment Products and all other subscription
deliverables.
17. OTHER TERMS: This agreement sets forth the entire understanding between
the parties relating to the subject matter hereof, and there are no
agreements, promises, representations or understandings between the parties
other than as set forth herein. No amendment or modification of this
agreement shall be effective unless in writing and signed by the parties to
this Agreement. No term, covenant or condition of this Agreement shall be
deemed to have been waived by either party to this Agreement unless such
waiver is in writing, and then such waiver shall only to the specific
event or circumstance described in such waiver. This Agreement shall be
governed by the laws in force at the User's address for notice set forth
below. The section headings in this Agreement are for convenience of
reference and do not affect the meaning of sections. This Agreement shall
enure to the benefit of, and be binding upon, the parties hereto and their
respective legal personal representatives, successors and permitted
assigns.
18. LANGUAGE: The parties hereto have requested that this agreement be drafted
in English. Les parties aux presentes ont exige que le present contrat
soit redige en langue anglaise.
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TRANSFORMATION PROCESSING INC. DATE DEPLOYMENT PRODUCT LICENSE AGREEMENT
IN WITNESS WHEREOF THE PARTIES HAVE SIGNED THIS AGREEMENT AS OF THE DATE
STATED ON PAGE ONE HEREOF BY THEIR OFFICERS DULY AUTHORIZED AS THEY SO DECLARE.
USER TRANSFORMATION PROCESSING INC.
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxx
Xxxxxx
X0X 0X0
By:________________________________ By:___________________________________
(Signature) (Signature)
___________________________________ ______________________________________
Name of Signing Officer (Please Print) Name of Signing Officer (Please Print)
___________________________________ ______________________________________
Title (Please Print) Title (Please Print)
___________________________________ TRANSFORMATION PROCESSING INC.
USER'S ADDRESS FOR NOTICE: ADDRESS FOR NOTICE:
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxx
Same as above. Canada L5N 2X4
TELEPHONE: (000) 000-0000 TELEPHONE: (000) 000-0000
FACSIMILE: (000) 000-0000 FACSIMILE: (000) 000-0000
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TRANSFORMATION PROCESSING INC. DATE DEPLOYMENT PRODUCT LICENSE AGREEMENT
SCHEDULE A
TARGET COMPUTER SYSTEMS
CPU
SYSTEM SERIAL # MODEL / MEMORY / DISK
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EXAMPLE
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TERMINALS
MANUFACTURER
NAME M/C TYPE MODEL LOCAL /REMOTE/INTERFACE TYPE
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EXAMPLE
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PRINTERS
MANUFACTURER
NAME M/C TYPE MODEL LOCAL /REMOTE/INTERFACE TYPE
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EXAMPLE
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TRANSFORMATION PROCESSING INC. DATE DEPLOYMENT PRODUCT LICENSE AGREEMENT
TAPE DRIVES
MANUFACTURER
NAME M/C TYPE MODEL LOCAL /REMOTE/INTERFACE TYPE
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EXAMPLE
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OPERATING SYSTEM
OPERATING SYSTEM VERSION
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EXAMPLE
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COMPILER VERSION
COMPILER SYSTEM VERSION
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EXAMPLE
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OTHER VERSION
OTHER SYSTEM VERSION
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EXAMPLE
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TRANSFORMATION PROCESSING INC. DATE DEPLOYMENT PRODUCT LICENSE AGREEMENT
SCHEDULE B
LICENSE FEES AND ANNUAL SUPPORT FEES
Based on the number of concurrent users identified in Schedule B (the "Target
Computer System"), the initial license fees and annual support fees payable to
TPI for the use of the Deployment Products granted under this Agreement are as
follows. Amounts are expressed in the U.S.A. currency.
1. DEPLOYMENT PRODUCTS INITIAL FEE
(a) SERVER SOFTWARE: A one-time initial license fee will be charged at a
rate of $695.00 per concurrent user. The total number of concurrent
users is identified as two (2).
The one-time initial license fee is $ 1390.00.
(b) CLIENT SOFTWARE: A one-time initial license fee will be charged at a
rate of $295.00 per concurrent user. The total number of concurrent
users is identified as two(2).
The one-time initial license fee is $ 590.00.
DEPLOYMENT PRODUCT SUPPORT FEE
(a) SERVER SOFTWARE: The annual support fee is charged at a rate of 15%
of the one-time initial license fee. The first payment is due upon
execution of this Agreement. Subsequent payments are due on each
Anniversary Date of this Agreement.
The annual support fee is $ 208.50.
(b) CLIENT SOFTWARE: The annual support fee is charged at a rate of 10% of
the one-time initial license fee. The first payment is due upon
execution of this Agreement. Subsequent payments are due on each
Anniversary Date of this Agreement.
The annual support fee is $ 59.00.
The one-time initial license fee and annual support fees do not include any
taxes or duties which, if applicable, will be charged in addition to those fees
set out in this Agreement
Prices are subject to change with thirty (30) days prior written notice.
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TRANSFORMATION PROCESSING INC. DATE DEPLOYMENT PRODUCT LICENSE AGREEMENT
