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Exhibit 10.5
EXCLUSIVE WORLDWIDE SOFTWARE LICENSE AGREEMENT
The following constitutes an Exclusive Worldwide Software License
Agreement between Xxxxxxxxx Xxxxxxxxx d/b/a Enterprise Hospitality Solutions
and Enterprise Hospitality Solutions, Inc., (collectively "EHS" or "Licensor")
on the one hand, and MAI Systems Corporation, and all of its affiliates and
subsidiaries("MAI") on the other hand, with respect to the Lodging Touch client
server software applications specified herein. The parties hereby acknowledge
and agree as follows:
1. TERMINATION OF 1996 LICENSE AGREEMENT -- All parties jointly agree
and acknowledge that the October 1996 License Agreement between MAI
Systems Corporation and Xxxxxxxxx Xxxxxxxxx d/b/a Enterprise
Hospitality Solutions, and all amendments thereto, is hereby
terminated effective as of September 30, 1999.
2. SOURCE CODE -- EHS agrees to provide MAI with a copy of the
existing source code, object code, specifications and documentation
for the existing Lodging Touch client server software applications, as
listed in Exhibit A to this letter, on or before September 30, 1999.
3. EXCLUSIVE WORLDWIDE SOFTWARE LICENSE/USE OF LODGING TOUCH NAME/EHS
NAMED ACCOUNTS -- Effective as of October 1, 1999, MAI shall obtain an
exclusive worldwide license to market, distribute, and modify the
software applications listed in Exhibit A, and all enhancements and
derivative works which are subsequently created by MAI or under MAI's
direction. MAI shall also acquire a non-exclusive license to the use
of the Lodging Touch name and the Lodging Touch trademark with respect
to the software application listed in Exhibit A. EHS agrees that it
will not release any new property management software applications
under the Lodging Touch name. Notwithstanding the foregoing, however,
the foregoing grant of rights to MAI shall be non-exclusive with
respect to the Named Accounts, as listed in Exhibit B hereto. MAI
shall be granted a non-exclusive royalty-free worldwide right to use
the database scheme (EHSBASE) developed by EHS. EHS agrees that it
shall only use its own copy of the source code for the applications as
described in Exhibit A (and any EHS derivative works or enhancements
thereto) to service the Named Accounts listed in Exhibit B. The
parties agree that any derivative works based upon the licensed
software created by MAI under this Agreement, and all intellectual
property, trade secret and other proprietary rights therein and
thereto, shall be the sole and exclusive property to MAI, both during
and following the expiration or other termination of this Agreement.
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4. ROYALTIES TO EHS - MAI agrees to pay EHS on or before the last
business day of each month a 10% royalty on the net software price (1) of
all properties that are serialized during the preceding month with respect
to the software applications listed in Exhibit A,(2) including all revenues
generated from all derivative works or enhancements to the software that
are subsequently created by MAI or under MAI's supervision. The
serialization process for these software applications will be conducted
jointly by EHS and MAI. EHS shall retain full audit rights which it may
invoke not more than two times per year. If MAI fails to pay any of the
royalties due for any two (2) consecutive months, then EHS shall be
entitled to give MAI notice of the breach, and MAI shall cure within
fifteen (15) days. In the event that, following such notice by EHS, MAI
fails to cure and fails to pay EHS any portion of the total royalties that
are due for any three (3) consecutive months, then all of MAI's rights
under this Agreement shall immediately terminate, without any further
notice requirements or opportunity to cure(3).
5. JOINT PRESS RELEASE - The parties will draft a joint press release
announcing their new agreement. The press release will not be distributed
unless and until this Agreement is executed by all parties.
6. RELEASE OF ALL OTHER CLAIMS - Except as specified in this Agreement,
the parties will waive all claims they may have against each other as of
the effective date of this Agreement, and each party shall bear its own
costs and attorneys' fees.
7. EHS Warranties
7.1 Ownership. Licensor warrants, represents and agrees with respect
to the licensed software and documentation contained in Exhibit A
and materials provided to MAI by Licensor, that (i) Licensor has
full and sufficient right to grant the rights and/or license
granted to MAI hereunder free of all liens, claims, encumbrances
and other restrictions; and (ii) the licensed software and
documentation (Exhibit A), including all preexisting works used or
incorporated in the licensed software and documentation (Exhibit
A), does not
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(1) The "net software price" is the price for the software as specified in the
contract between MAI and its customer, less (i) any discounts given by MAI,
(ii) returns, and (iii) any federal, state or foreign sales, excise, or other
taxes or tariffs imposed on the licensing, manufacture and/or distribution of
the software (not including taxes on net income).
(2) Notwithstanding the above. The royalty rates payable to EHS with respect
to all software under the Joint Armed Services agreement as reflected in the
Contract Line Item Numbers (CLIN), shall be reduced to 20%.
(3) Either party shall retain all rights to seek damages or injunctive relief
from the other as a result of any breach of this Agreement.
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infringe any patent, copyright, trademark or other intellectual
property rights (including trade secrets), privacy, publicity or
similar rights of any third party, nor has any claim (whether or
not embodied in an action, past or present,) of such infringement
been threatened or asserted, and no such claim is pending against
Licensor or, insofar as Licensor is aware, against any third
party. Licensor further warrants that the software listed in
Exhibit A and the related documentation do not incorporate and are
not derived from any third party software or other materials. If
MAI or any successor company files a claim against EHS for breach
of any of the warranties or representations contained in this
paragraph, the prevailing party in that action shall be entitled
to recover reasonable costs, expenses and attorneys' fees. EHS IS
PROVIDING THE SOFTWARE UNDER THIS AGREEMENT "AS-IS". EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT, EHS MAKES NO OTHER
WARRANTIES WITH RESPECT TO THE SOFTWARE, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.2 No Code Designed to Damage: Licensor represents, warrants and
agrees that to the best of Licensor's knowledge the licensed
software contained in Exhibit A shall not contain any code,
programming instruction or set of instructions that is
intentionally constructed with the ability to damage, interfere
with or otherwise adversely affect computer programs, data files,
or hardware without the consent and intent of the computer user,
including without limitation code such as "viruses," "Trojan
horses," "bombs," "worms," or similar disabling, destructive,
self-replicating or paralyzing programs, or programs that
interfere with use of the Licensed Software by locking out
computer users or require the use of passwords or other mechanisms
that inhibit use, or programs that disable or interfere with use
of the licensed software listed in Exhibit A after the expiration
of a designated period of time. Licensor shall promptly notify MAI
of any Licensor knowledge or suspicion of any such problem that
might affect the licensed software (Exhibit A) or any materials
delivered to MAI by Licensor hereunder.
8. ENTIRE AGREEMENT - This Agreement and the attachments hereto
constitute the entire understanding and agreement between the parties with
respect to the subject matters identified herein, and it supercedes any and
all prior or contemporaneous oral or written communications between the
parties with respect to the subject matter hereof. This Agreement may not
be amended,
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modified or altered in any way except by a writing duly signed by an
authorized representative of the parties. The payments to be received
under this Agreement are freely assignable. The duties and obligations
of the parties may be assigned with the written consent of the other
party, which consent will not be unreasonably withheld provided that
MAI may assign this agreement to an affiliate of MAI without obtaining
such consent.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
effective as of August 20, 1999.
MAI SYSTEMS CORPORATION
By: /s/ W. Xxxxx Xxxxxxxx
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W. Xxxxx Xxxxxxxx
Chief Executive Officer
XXXXXXXXX XXXXXXXXX d/b/a ENTERPRISE HOSPITALITY SOLUTIONS
By: /s/ Xxxxxxxxx Xxxxxxxxx
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Xxxxxxxxx Xxxxxxxxx
ENTERPRISE HOSPITALITY SOLUTIONS, INC.
By: /s/ Xxxxxxxxx Xxxxxxxxx
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Xxxxxxxxx Xxxxxxxxx
President and Chief Executive Officer
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EXHIBIT A
Lodging Touch Client/Server Software Suite Owned By MAI
Cerebro/Libica -- Hospitality Operations
Central Reservation -- PMWIN Powerbuilder 6.5 code base
Central Information -- PMWIN Powerbuilder 6.5 code base
Property Management -- PMWIN Powerbuilder 6.5 code base
Wholesaler -- PMWIN Powerbuilder 6.5 code base
Catering -- PMWIN Powerbuilder 6.5 code base
Contact Management -- PMWIN Powerbuilder 6.5 code base
Kiosk -- ONETOUCH Powerbuilder 6.5 code base
Cenacolo -- Hospitality Food & Beverage Operations
Point of Sale -- FBWIN Powerbuilder 6.5 code base
Cost and Inventory Control -- MAYOLICA Powerbuilder 6.5 code base
Interfaces -- Hospitality Interfaces
DataMover Plus -- DMPLUS Powerbuilder 6.5 code base
UMM -- UMM Powerbuilder 6.5 code base
UMMIPU -- UMMIPU Powerbuilder 6.5 code base
UMMCRS -- UMMCRS Powerbuilder 6.5 code base
EMLQ -- EMLQ Powerbuilder 6.5 code base
LQCON -- LQCON Powerbuilder 6.5 code base
YM -- Only Specifications available, no code presently written, this is for
the future Talus Interface
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EXHIBIT B
EHS NAMED ACCOUNTS
1. Best Western International
2. Xxx Xxxxx Hotels
3. Choice Hotels
4. Marriott Hotels
5. Tradewinds
6. Starwood
7. Joint Armed Services
