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Exhibit 10.6
SOFTWARE LICENSE AGREEMENT
This SOFTWARE LICENSE AGREEMENT (this "Agreement") effective as
of the 31st day of March, 1999, by and between PREVENT SYSTEMS, INC., an Alabama
corporation ("Licensor"), and Xxxxxxx.xxx, a Delaware corporation ("Customer").
1. LIMITED LICENSE
1.1 GRANT. Licensor grants to Customer a personal, non-transferable,
non-exclusive, unlimited-scope site license to use, in
accordance with and for the duration of this Agreement,
Licensor's proprietary applications Software identified on
Schedule A to this Agreement ("Software") and the related
documentation listed on Schedule A ("Documentation"), as the
Software and Documentation may be modified, revised and updated
in accordance with this Agreement.
1.2 DESIGNATED COMPUTER(S) AND LOCATION(S). The Software may be
installed and used only at the Customer location(s) listed on
Schedule B to this Agreement ("Designated Location(s)") and on
any computer(s) operated by Customer at the listed locations,
except that:
(a) Customer may change a Designated Location to another
Customer location by giving prompt written notice to
Licensor (in accordance with Section 9.1) stating the
address of the new location and certifying that there are
no copies of the software in operation at the replaced
location.
(b) If Customer transfers a Designated Location or control
over the operation thereof, then Customer shall change the
Designated Location in accordance with Section 1.2(a).
(c) Customer may use the Software for disaster recovery
testing or production purposes provided that Customer
requires its disaster recovery vendor to comply with the
provisions of Section 7. Customer shall be fully liable
for any breach of this Agreement by its disaster recovery
vendor.
1.3 SCOPE. Customer may use the Software and Documentation only in
the ordinary course of its business operations and for its own
business purposes. Customer shall use the Software only in
accordance with the Documentation.
1.4 COPIES. Customer may use only the copies of the Software and
Documentation that are provided by Licensor, except that
Customer may copy the Software and Documentation to the extent
reasonably necessary for routine backup and disaster recovery
purposes.
2. INSTALLATION, ACCEPTANCE AND TRAINING
2.1 INITIAL INSTALLATION. Subject to Customer's performance of its
obligations in Section 4, Licensor shall provide and Customer
shall accept the Minimum Installation Support described on
Schedule C. This shall include delivery to Customer of the
Initial Copy of the
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Software and Documentation (as defined in Schedule A),
installation of the Software on or before the Installation Date
(as defined in Schedule A) at the Initial Installation Site(s)
(defined on Schedule B), and assistance with any other
implementation or related activities described on Schedule C.
Subject to the availability of Licensor's personnel and at
Licensor's then standard rates, Licensor shall provide to
Customer additional installation support services reasonably
requested by Customer. After delivery, Customer shall bear all
risk of loss or damage to all copies of the Software and
Documentation reasonably requested by Customer.
2.2 ACCEPTANCE. Licensor shall given written notice to Customer (in
accordance with Section 9.1) certifying that installation of the
Software at the Installation Site(s) is completed. Customer
shall be deemed to have accepted the Software thirty (30) days
after receiving Licensor's notice, unless both, during that
period, the Software fails to perform in accordance with the
Documentation in some material respect that precludes acceptance
of the Software by Customer, and, by the end of that 30-day
period, Customer gives written notice of nonacceptance to
Licensor (in accordance with Section 9.1) describing the
material failure in reasonable detail and explaining why the
failure precludes acceptance of the Software by Customer. If
Customer gives a proper notice of nonacceptance to Licensor,
then:
(a) Licensor shall investigate the reported failure. Customer
shall provide to Licensor reasonably detailed
documentation and explanation, together with underlying
data, to substantiate the failure and to assist Licensor
in its efforts to diagnose and correct the failure.
(b) If Licensor determines, reasonably and in good faith, that
there was no material failure to perform or that the
failure to perform was not attributable to a defect in the
Software or an act or omission of Licensor, then Licensor
shall given written notice to Customer (in accordance with
Section 9.1) explaining that determination in reasonable
detail, and Customer shall be deemed to have accepted the
Software as of the date of Licensor's notice.
(c) If Licensor determines that there was a material failure
to perform that was attributable to a defect in the
Software or an act or omission of Licensor, and if
Licensor cannot, correct the failure within thirty (30)
days (or such longer period as may be reasonable under the
circumstances) after receipt of Customer's notice of
nonacceptance, then Customer shall promptly return to
Licensor all copies of the Software and Documentation and
any other items delivered to Customer by Licensor, and
Licensor shall then refund to Customer the unused
pro-rata portion of the Annual License Fee paid by
Customer in accordance with Section 5.1. If, within such
period, Licensor does correct the failure, then Licensor
shall give written notice to Customer (in accordance with
Section 9.1) certifying that the failure has been
corrected, and another thirty (30) day acceptance period
shall begin in accordance with this Section 2.2.
2.3 TRAINING. Licensor shall provide and Customer shall accept the
Minimum Training described on Schedule C. This shall include
basic training in the use of the Software for the number of
Customer's employees set forth on Schedule C. Subject to the
availability of
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Licensor's personnel, Licensor shall provide to Customer additional
training services reasonably requested by Customer at Licensor's then
current rates.
3. LICENSOR'S OTHER OBLIGATIONS
3.1 ONGOING SUPPORT SERVICES. Customer shall pay Licensor an annual
software maintenance fee of $75,000.00 (the "Annual Maintenance
Fee"). Licensor shall provide to Customer all updates, upgrades,
refinements, fixes, improvements, enhancements, and new versions to
the Software that Licensor incorporates generally into the Software
without additional charge.
3.2 CONSULTING AND CUSTOM DEVELOPMENT. At Customer's option, Licensor
will preform custom development work in accordance with mutually
agreed upon terms and conditions to be set forth in a separate
contract. If Customer elects to contract with Licensor to perform
custom development work, Customer will pay Licensor at fair market
rates for each incident of custom work required. Fair market rates
for custom development work will typically be $1,500.00 per man-day,
for normally scheduled work; however, this figure is an estimate only
and will be mutually agreed upon in the separate contract. "Rush"
projects will be bid at a higher rate, depending on programmer
availability at the time of Customer's request. Upon receipt of
Customer's requirements, Licensor will provide a good faith estimate
of the work to be performed and the estimated total cost to perform
the custom development work Payment for any custom development work
shall be paid 50% upon commencement of the work and 50% upon
Customer's acceptance (to be more specifically detailed by separate
contract). Licensor will retain ownership of the Software, as
customized, and will continue to maintain the software, for the
duration of the agreement, at no additional cost to Customer.
3.3 INITIAL DEVELOPMENT WORK. Licensor shall perform an initial
modification (the "Initial Modification") to the Software for the sum
of $35,000.00 (the "Initial Modification Fee").
4. CUSTOMER'S OTHER OBLIGATIONS
4.1 PROCUREMENT OF HARDWARE. Customer shall be responsible, at its
expense, for procuring and maintaining the computer hardware, systems
software and other items which comprise the Specified Configuration
(defined in Schedule A), and for updating the Specified Configuration
in accordance with Licensor's published updates to Schedule A. If not
yet completed, Customer shall complete its procurement and
installation of the Specified Configuration(s) for the Initial
Installation Site(s) at least fifteen (15) days before the
Installation Date.
4.2 ACCESS TO FACILITIES AND EMPLOYEES. Customer shall provide to
Licensor access to the Designated Location(s) and Customer's
equipment and employees, and shall otherwise cooperate with Licensor,
as reasonably necessary for Licensor to perform its installation,
training, and other obligations under this Agreement. Customer shall
devote all equipment, facilities, personnel and other resources
reasonably necessary to install the Software and begin using the
Software in production or in the ordinary course of its business on a
timely basis as contemplated by this Agreement.
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4.3 CERTAIN LEGAL REQUIREMENTS. Customer shall be responsible, at its
expense, for complying with all applicable laws and regulations of
each jurisdiction where there is a Designated Location of the
Software, including without limitation laws and regulations
pertaining to (a) exports or imports of software and related
property, (b) use or remote use of software and related property, or
(c) registration of this Agreement. Customer shall indemnify, save
and hold harmless Licensor (and its affiliates, and the respective
directors, officers, employees and agents of Licensor and its
affiliates) from and against all actions, claims, damages or
liabilities (including reasonable attorneys' fees), at law or in
equity, arising out of any violation by Customer of any such laws or
regulations.
4.4 MANAGEMENT, CONTROL AND IMPLEMENTATION. Customer is responsible for
the adequacy of the Customer's intended application and use. Licensor
will provide assistance to Customer for implementation and
installation in accordance with the terms of this Agreement; however,
Customer shall be responsible for the management, internal control,
and implementation of the Software, including acquiring adequate
computer hardware, insuring proper machine configuration and program
installation. Licensor recommends as part of the implementation of
the Software that Customer operate the Software in parallel with the
Customer's existing methods and systems until Customer has completed
the implementation.
5. PAYMENTS
5.1 ANNUAL LICENSE FEE. Customer shall pay to Licensor an annual fee (the
"Annual License Fee") in the amount stated on Schedule C, in
accordance with the payment terms stated on Schedule C.
5.2 SERVICE FEES. Customer shall pay to Licensor the service fees stated
on Schedule C for Annual Maintenance and Initial Modification. In
each case where service fees are not specified on Schedule C, then
the fees for such services shall be based upon Licensor's then
standard professional fee rates. Licensor's standard professional fee
rates in effect on the date of this Agreement are stated on Schedule
C and are subject to increase in the ordinary course of business.
5.3 EXPENSE REIMBURSEMENTS. Whenever any services are provided by Licensor
at a Customer location or any other location requested by Customer
other than one of Licensor's locations, Customer shall reimburse
Licensor for its reasonable travel, lodging, meal and related expenses
incurred by Licensor's personnel in providing such services.
5.4 OTHER FEES. If Customer requires replacement or additional copies of
the Software or Documentation, or if Customer assigns or otherwise
transfers this Agreement with Licensor's consent (in accordance with
Section 9.3), then Customer shall pay to Licensor the corresponding
fees stated on Schedule C.
5.5 TAXES. The fees and other amounts payable by Customer to Licensor
under this Agreement do not include any taxes of any jurisdiction
that may be assessed or imposed upon the copies of the Software and
Documentation delivered to Customer, the license granted under this
Agreement or the services provided under this Agreement, or otherwise
assessed or imposed in connection with the transactions contemplated
by this Agreement, including sales, use,
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excise, value added, personal property, export, import and withholding
taxes, excluding only taxes based upon Licensor's net income. Customer
shall directly pay any such taxes assessed against it or the
transactions contemplated herein, and Customer shall promptly
reimburse Licensor for any such taxes payable or collectable by
Licensor.
5.6 PAYMENT TERMS. Monthly license fees shall be invoiced by Licensor
monthly in advance as per Schedule C. All other fees and all expense
reimbursements shall be invoiced by Licensor as and when incurred. All
invoices shall be sent to Customer's address for invoices stated on
schedule B. Customer's payments shall be due within thirty (30) days
after receipt of invoice. Interest at the rate of eighteen percent
(18%) per annum (or, if lower, the maximum rate permitted by
applicable law) shall accrue on any amount not paid by Customer to
Licensor when due under this Agreement, and shall be payable by
Customer to Licensor on demand. Except as provided in Section 2.2(c)
and 6.2(c), all fees and other amounts paid by Customer under this
Agreement are non-refundable.
5.7 CERTAIN REMEDIES FOR NONPAYMENT. If Customer fails to pay to Licensor,
within ten (10) days after Licensor makes written demand thereof, any
past-due amount payable under this Agreement (including interest
thereon) that is not the subject of a good faith dispute as to which
Customer has given written notice to Licensor (in accordance with
Section 9.1) explaining its position in reasonable detail, then, in
addition to all other rights and remedies which Licensor may have at
law or in equity, Licensor may, in its sole discretion and without
further notice to Customer, suspend performance of any or all of its
obligations under this Agreement (including its ongoing support
services under Section 3.1), and/or activate internal controls in the
Software that are designed to disable the normal operation of the
Software, until all past due amounts are paid in full.
5.8 LIMITED AVAILABILITY. For 180 days from the effective date of this
Agreement (the "Limited Availability Period"), Licensor shall not sell
the Software to the following direct competitors (the "Direct
Competitors") of Customer: (a) NetCreations, Inc. (PostMaster Direct);
(b) American List Council; (c) Excite (Matchlogic, DeliverE, Website
Postoffice); (d) Sift; (e) Email Channel; (F) Digital Impact; (G)
Topica; (h) Popular Demand; (i) Edirect; (j) World Data; and (k) EKG
(Xxxx Xxxx). After the Limited Availability Period expires, Licensor
shall be free to sell the Software to a Direct Competitor but Licensor
shall notify Customer in writing (in accordance with Section 9.1) if
Licensor is seriously considering a sale to a Director Competitor.
6. WARRANTIES AND LIMITATIONS
6.1 PERFORMANCE. Licensor warrants to Customer that the Software, in the
form delivered to Customer by Licensor and when properly used for the
purpose and in the manner specifically authorized by this Agreement,
will perform as described in the Documentation in all material
respects. Licensor's only obligation under this warranty is to comply
with the provisions of Section 2.2 with respect to any material
failure to perform described in a notice of nonacceptance given by
Customer to Licensor in accordance with Section 2.2.
6.2 RIGHT TO LICENSE; NO INFRINGEMENT. Licensor warrants to Customer that
to the best of its knowledge, except for any third-party products for
which Licensor acts as licensing agent, it has the full legal right
to grant to Customer the license granted under this Agreement, and
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that the Software and Documentation, in the form delivered to Customer
by Licensor and when properly used for the purpose and in the manner
specifically authorized by this Agreement, do not infringe in any
material respect upon any United State patent or copyright or any
trade secret or other proprietary right of any person. Licensor shall
have no liability under this Section 6.2 unless Customer gives written
notice to Licensor (in accordance with Section 9.1) within ten (10)
days after any applicable infringement claim is initiated against
Customer and allows Licensor to have sole control of the defense or
settlement of the claim. If any applicable infringement claim is
initiated, or in Licensor's sole opinion is likely to be initiated,
then Customer's sole and exclusive remedy for a breach or alleged
breach of Licensor's warranty in this Section 6.2 shall be that
Licensor shall, at its sole option and expense, either:
(a) modify or replace all or the infringing part of the Software or
Documentation so that it is no longer infringing, provided that
the Software functionality does not change in any material
adverse respect; or
(b) procure for Customer the right to continue using the infringing
part of the Software or Documentation; or
(c) remove all or the infringing part of the Software or
Documentation, and refund to Customer the pro-rata unused portion
of the Annual License Fee paid by Customer to Licensor under
Section 5.1, in which case this Agreement shall terminate with
respect to the Software or part thereof removed.
6.3 EXCLUSION FOR UNAUTHORIZED ACTIONS. Licensor shall have no liability
under any provision of this Agreement with respect to any performance
problem, claim of infringement or other matter to the extent
attributable to any unauthorized or improper use or modification of
the Software, any combination of the Software with other software, any
use of any version of the Software other than the latest release of
the Software that is then generally available to Licensor's customer
base, or any breach of this Agreement by Customer.
6.4 FORCE MAJEURE. Licensor shall not be liable for, nor shall Licensor be
considered in breach of this Agreement due to, any failure to perform
its obligations under this Agreement as a result of a cause beyond its
control, including any act of God or a public enemy, act of any
military, civil or regulatory authority, change in any law or
regulation, fire, flood, earthquake, storm or other like event,
disruption or outage of communications, power or other utility, labor
problem, unavailability of supplies, or any other cause, whether
similar or dissimilar to any of the foregoing, which could not have
been prevented by Licensor with reasonable care.
6.5 DISCLAIMER AND EXCLUSION. EXCEPT AS EXPRESSLY STATED IN THIS
AGREEMENT, LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL OR
WRITTEN, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE
SOFTWARE OR ANY OTHER MATTER PERTAINING TO THIS AGREEMENT. LICENSOR'S
TOTAL LIABILITY UNDER THIS AGREEMENT SHALL UNDER NO CIRCUMSTANCES
EXCEED THE INITIAL LICENSE FEE ACTUALLY PAID BY CUSTOMER TO LICENSOR
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UNDER THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL LICENSOR BE LIABLE
TO CUSTOMER OR ANY OTHER PERSON FOR LOST REVENUES, SPECIAL DAMAGES,
EXEMPLARY DAMAGES, OR CONSEQUENTIAL DAMAGES OF ANY NATURE, WHETHER OR
NOT FORESEEABLE.
6.6 OTHER LIMITATIONS. The warranties made by Licensor in this Agreement,
and the obligations of Licensor under this Agreement, run only to
Customer and not to its affiliates, as customers or any other persons.
Under no circumstances shall any other person be considered a third
party beneficiary of this Agreement or otherwise entitled to any
rights or remedies under this Agreement. Customer shall have no rights
or remedies against Licensor except as specifically provided in this
Agreement. No action or claim of any type relating to this Agreement
may be brought or made by Customer more than one (1) year after
Customer first has knowledge of the basis for the action or claim.
6.7 SIZING. Sizing is the process of estimating the amount of computer
equipment and types of hardware and software features needed to
execute the Software on the designated Computer under particular
circumstances and to achieve certain performance goals. Customer
acknowledges that Licensor will perform a sizing only upon Customer's
request and using the Customer's own data and estimates. Customer
acknowledges that Customer has all, and that Licensor in no way has
any responsibility for the choice of the Designated Computer, its
features, and the use of the Software to achieve any performance
goals. EXCEPT AS MAY BE EXPRESSLY PROVIDED HEREIN, LICENSOR MAKES NO
WARRANTY AS TO THE ADEQUACY OR CAPACITY OF THE DESIGNATED COMPUTER OR
THE PERFORMANCE OF THE SOFTWARE ON THE DESIGNATED COMPUTER.
7. CONFIDENTIALITY, OWNERSHIP AND RESTRICTIVE COVENANTS
7.1 CONFIDENTIAL INFORMATION. All business information disclosed by one
party to the other in connection with this Agreement shall be treated
as confidential information (the "Confidential Information") unless it
is or later becomes publicly available through no fault of the other
party or it was or later is rightfully developed or obtained by the
other party from independent sources free from any duty of
confidentiality. Each party's confidential information shall be held
in strict confidence by the other party, using, at a minimum, the same
standard of care as it uses to protect its own confidential
information, and shall not be used or disclosed by the other party for
any purpose except as necessary to implement or perform this
Agreement, or except as required by law provided that the other party
is given a reasonable opportunity to obtain a protective order.
Without limiting the generality of the foregoing, such confidential
information shall include Customer's data and details of Customer's
computer operations and the terms and pricing of this Agreement.
7.2 LICENSOR'S PROPRIETARY ITEMS. Customer acknowledges that the Software
and Documentation, the object code and the source code for the
Software, the visual expressions, data formats, screen formats, report
formats and other design features of the Software, all ideas, methods,
algorithms, formulae and concepts used in developing and/or
incorporated into the Software and Documentation, all future
modifications, revisions, updates, releases, refinements, improvements
and enhancements of the Software or Documentation, all derivative
works based upon any of the foregoing, and all copies of the foregoing
(referred to, collectively, as "Proprietary Items") are trade secrets
and proprietary property solely of
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Licensor, having great commercial value to Licensor. Customer
acknowledges that the restrictions in this Agreements are reasonable
and necessary to protect Licensor's legitimate business interests. If
Licensor declares bankruptcy or otherwise ceases to do business,
Customer shall have the right to gain access to the latest version of
the Software's source code, including modifications made for customer
and related documentation, for the sole purpose of fulfilling its
rights under this Agreement; however, the title to the Software's
source code shall neither transfer nor pass to Customer under this or
any other circumstance.
7.3 OWNERSHIP RIGHTS. All Proprietary Items provided to Customer under
this Agreement are being provided on a strictly confidential and
limited use basis. Title to all Proprietary Items and all related
patent, copyright, trademark, trade secret, intellectual property and
other ownership rights shall remain exclusively with Licensor, even
with respect to such items that were created by Licensor specifically
for or on behalf of Customer. This Agreement is not an agreement of
sale, and no title, patent, copyright, trademark, trade secret,
intellectual property or other ownership rights to any Proprietary
Items are transferred to Customer by virtue of this Agreement. All
copies of Proprietary Items in Customer's possession shall remain the
exclusive property of Licensor and shall be deemed to be on loan to
Customer during the term of this Agreement.
7.4 DISCLOSURE RESTRICTIONS. All Confidential Information and Proprietary
Items in Customer's possession, whether or not authorized, shall be
held in strict confidence by Customer, and Customer shall take all
steps reasonably necessary to preserve the confidentiality thereof
throughout the term of this Agreement and for five (5) years following
the expiration or termination of this Agreement. Customer shall not,
directly or indirectly, communicate, publish, display, loan, give or
otherwise disclose any Proprietary Item to any person, or permit any
person to have access to Proprietary Items other than those of its
employees whose responsibilities require such use or access. Customer
shall advise all such employees, before they receive access to or
possession of any Proprietary Items, of the confidential nature of the
Proprietary Items and require them to sign a nondisclosure agreement
containing the terms of this Section 7. Customer shall be liable for
any breach of this Agreement by any of its employees and any other
person who obtains access to or possession of any Proprietary Item
from or through Customer.
7.5 USE RESTRICTIONS. Customer shall not do, nor shall it permit any other
person to do, any of the following:
(a) use any Proprietary Item for any purpose, at any location or in
any manner not specifically authorized by this Agreement;
(b) make or retain any copy of any Proprietary Item except as
specifically authorized by this Agreement; or
(c) create or recreate the source code for the Software, or
re-engineer, reverse engineer, decompile or disassemble the
Software; or
(d) modify, adapt, translate or create derivative works based upon
the Software or Documentation, or combine or merge any part of
the Software or Documentation
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with or into any other software or documentation, except as
mutually agreed upon and as contemplated in this Agreement; or
(e) refer to or otherwise use any Proprietary Item as part of any
effort to develop a program having any functional attributes,
visual expressions or other features similar to those of the
Software or to compete with Licensor; or
(f) remove, erase or tamper with any copyright or other proprietary
notice printed or stamped on, affixed to, or encoded or recorded
in any Proprietary Item, or fail to preserve all copyright and
other proprietary notices in any copy of any Proprietary Item
made by Customer; or
(g) sell, market, license, sublicense, distribute or otherwise grant
to any persons, including any outsourcer, vendor, consultant or
partner, any right to use any Proprietary Item, whether on
Customer's behalf or otherwise; or
(h) aside from Customer's authorized employees at the Designated
Location, use the Software to conduct any type of service bureau
or time-sharing operation or to provide remote processing,
network processing, network telecommunications or similar
services to any person, whether on a fee basis or otherwise; or
(i) attempt to do any of the foregoing.
7.6 NOTICE AND REMEDY OF BREACHES. Customer shall promptly give written
notice to Licensor (in accordance with Section 9.1) of any actual or
suspected breach by Customer of any of the provisions of this Section
7, whether or not intentional, and Customer shall, at its expense,
take all steps reasonably requested by Licensor to prevent or remedy
the breach.
7.7 AUDIT. Licensor may, at its expense and by giving reasonably advance
written notice to Customer (in accordance with Section 9.1), enter
Customer locations during normal business hours and audit the
Customer's compliance with the provisions of this Section 7. If
Licensor discovers Customer is not in compliance with the provisions
of this Section 7 in any material respect, then Customer shall
reimburse Licensor for the expenses incurred by Licensor in conducting
the audit.
7.8 ENFORCEMENT. Customer acknowledges that any breach of any of the
provisions of this Section 7 shall result in irreparable injury to
Licensor for which money damages could not adequately compensate. If
there is a breach, then Licensor shall be entitled, in addition to
all other rights and remedies which Licensor may have at law or in
equity, to have a decree of specific performance or an injunction
issued by an competent court, requiring the breach to be cured or
enjoining all person involved from continuing the breach. The
existence of any claim or cause of action which Customer or any other
person may have against Licensor shall not constitute a defense or
bar to the enforcement of any of the provisions of this Section 7.
8. TERMINATION
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8.1 TERMINATION. The initial term of this Agreement shall be two (2)
years beginning on the effective date of this Agreement. This
Agreement shall automatically, and without further action by the
parties, renew for subsequent and additional one (1) year terms (the
"Renewal Terms"). Either Customer or Licensor may terminate this
Agreement by notifying the other party in writing (in accordance with
Section 9.1) at least sixty (60) days before any Renewal Term.
8.2 TERMINATION BY CUSTOMER. Licensor will provide written notice (in
accordance with Section 9.1) if it decides to license the Software to
a Direct Competitor of Customer as listed in Section 5.8. After the
first ten (10) months of this Agreement, upon receipt of Licensor's
notice, Customer will have the option to terminate this Agreement by
providing written notice (in accordance with Section 9.1) to
Licensor. Upon Customer's termination in accordance with this Section
8.2, Customer shall pay Licensor a termination penalty equal to two
(2) months of the prorated Annual License Fee.
8.3 TERMINATION BY LICENSOR. Licensor may immediately terminate this
Agreement, by giving written notice of termination to Customer (in
accordance with Section 9.1), upon the occurrence of any of the
following events:
(a) Customer fails to pay to Licensor, within ten (10) days after
Licensor makes written demand thereof, any past-due amount
payable under this Agreement (including interest thereon) that is
not the subject of a good faith dispute as to which Customer has
given written notice to Licensor (in accordance with Section 9.1)
explaining its position in reasonable detail.
(b) Customer breaches, in any material respect, any of the provisions
of Section 7 or Section 9.3.
(c) Customer breaches any of its other obligations under this
Agreement and does not cure the breach within thirty (30) days
after Licensor gives written notice to Customer (in accordance
with Section 9.1) describing the breach in reasonable detail.
(d) Customer dissolves or liquidates or otherwise discontinues all
or a significant part of its business operations.
8.4 EXPIRATION OF TERM. Unless terminated earlier pursuant to Section 8.1
or 8.2 hereof, this Agreement shall automatically terminate at the end
of twenty (20) years after the Acceptance Date.
8.5 EFFECT OF TERMINATION. Upon a termination of this Agreement, whether
under this Section 8 or otherwise, Customer shall discontinue all use
of the Software and Documentation, Customer shall promptly return to
Licensor all copies of the Software, the Documentation and any other
Proprietary Items then in Customer's possession, and Customer shall
give written notice to Licensor (in accordance with Section 9.1)
certifying that all copies of the Software have been permanently
deleted from its computers. Customers shall remain liable for all
payments due to Licensor with respect to the period ending on the
date of
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termination. The provisions of Sections 5, 6, (excluding 6.1) and 7
shall survive any termination of this Agreement, whether under this
Section 8 or otherwise.
9. OTHER PROVISIONS
9.1 NOTICE. All notices, consents and other communications under or
regarding this Agreement shall be in writing and shall be deemed to
have been received on the earlier of the date of actual receipt, the
third business day after being mailed by first class certified mail,
or the first business day after being sent by a reputable overnight
delivery service. Any notice may be given by facsimile, provided
that a signed written original is sent by one of the preceding
methods within twenty-four (24) hours thereafter. Customer's address
for notices is stated on Schedule B. Licensor's address for notices
is Revnet Systems, Inc., Attn: Xxxxxx Xxxxxxxx, CEO, 0000 Xxxxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000. Either party may change its
address for notices by giving written notice of the new address to
the other party in accordance with this Section 9.1.
9.2 DEFINED TERMS. As used in this Agreement, the following terms have
the following meanings:
(a) "affiliate" means, with respect to a specified person, any
person which directly or indirectly controls, is controlled
by, or is under common control with the specified person as
of the date of this Agreement, for as long as such
relationship remains in effect.
(b) "copy" means any paper, disk, tape, film, memory device, or
other material or object on or in which any words, object
code, source code or other symbols are written, recorded or
encoded, whether permanent or transitory.
(c) "including" means including but not limited to.
(d) "person" means any individual, sole proprietorship, joint
venture, partnership, corporation, company, firm, bank,
association, cooperative, trust, estate, government,
governmental agency, regulatory authority, or other entity of
any nature.
9.3 PARTIES IN INTEREST. The Agreement shall bind, benefit and be
enforceable by and against Licensor and Customer and, to the extent
permitted hereby, their respective successors and assigns. Customer
shall not assign this Agreement or any of its rights hereunder, nor
delegate any of its obligations hereunder, without Licensor's prior
written consent. Licensor's consent shall not be unreasonably
withheld in the case of a proposed assignment to a purchaser of a
successor to substantially all of Customer's business, or to an
affiliate of Customer, provided that the scope of the license
granted hereunder does not change and Customer guarantees the
obligations of the assignee. Any change in control of Customer, and
any assignment by merger or otherwise by operation of law, shall
constitute an assignment to this Agreement by Customer for purposes
of this Section 9.3. If Licensor merges with another entity or sells
substantially all of its business to another entity (the other
entity being referred to as the "Acquiring Entity"), Licensor's
rights and obligations assigned in this Agreement will transfer to
the Acquiring Entity and Customer will be
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entitled to continue asserting its rights and obligations under this
Agreement against the Acquiring Party.
9.4 RELATIONSHIP. The relationship between the parties created by this
Agreement is that of independent contractors and not partners, joint
ventures or agents.
9.5 ENTIRE UNDERSTANDING. This Agreement, which includes and incorporates the
Schedules referred to herein, states the entire understanding between the
parties with respect to its subject matter, and supersedes all prior
proposals, marketing material, negotiations and other written or oral
communications between the parties with respect to the subject matter of
this Agreement. Any written, printed or other materials which Licensor
provides to Customer that are not included in the Documentation are
provided on an "as is" basis, without warranty, and solely as an
accommodation to Customer.
9.6 MODIFICATION AND WAIVER. No modification of this Agreement, and no waiver
of any breach of this Agreement, shall be effective unless in writing and
signed by an authorized representative of the party against whom
enforcement is sought. No waiver of any breach of this Agreement, and no
course of dealing between the parties, shall be construed as a waiver of
any subsequent breach of this Agreement.
9.7 SEVERABILITY. A determination that any provision of this Agreement is
invalid or unenforceable shall not affect the other provisions of this
Agreement.
9.8 HEADINGS. Section headings are for convenience or reference only and shall
not affect the interpretation of this Agreement.
9.9 JURISDICTION AND PROCESS. In any action relating to this Agreement, (a)
each of the parties irrevocably consents to the exclusive jurisdiction and
venue of the federal and state courts located in the State of Alabama, (b)
each of the parties irrevocably waives the right to trial by jury, (c) each
of the parties irrevocably consents to service of process by first class
certified mail, return receipt requested, postage prepaid, to the address
at which the party is to receive notice in accordance with Section, and (d)
the prevailing party shall be entitled to recover its reasonable attorney's
fees (including, if applicable, charges for in-house counsel), court costs
and other legal expenses from the other party.
9.10 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF ALABAMA EXCLUDING CHOICE OF LAW.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on their behalf on the 4th day of June 1999.
REVNET SYSTEMS, INC.,
an Alabama corporation
"LICENSOR"
By: [Signature Illegible]
------------------------------------
Its: CEO
------------------------------------
???????
By: [Signature Illegible]
------------------------------
Its: VP Marketing
------------------------------
XXXXXXX.XXX,
a Delaware corporation
"CUSTOMER"
By: [Signature Illegible]
------------------------------------
Its: ???
-----------------------------------
???????
By: [Signature Illegible]
------------------------------
Its: VP
------------------------------
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SCHEDULE A
TO SOFTWARE LICENSE AGREEMENT
DATED AS OF MARCH 31, 1999
--------------------------------------------------------------------------------
SOFTWARE AND RELATED INFORMATION
--------------------------------------------------------------------------------
SOFTWARE: UnityMail, including UnityPost and API
DOCUMENTATION: To be delivered after completion of installation.
SPECIFIED
CONFIGURATION: n/a
--------------------------------------------
Customer's Name: Xxxxxxx.xxx
---------------------------
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