CUSTOM SOFTWARE DEVELOPMENT AND LICENSE AGREEMENT
This Custom Software Development and License Agreement (the "Agreement") is
effective as of March 1, 1998 between College Resource Management, Inc., a
Delaware Corporation, with its principal place of business at 000 X. Xxxxxxx
Xxxxx 000, Xxxxx Xxxxxxx, Xxxxx ("Licensee") and International Business
Consulting, Inc. a Bahamas corporation ("Licensor").
RECITALS
WHEREAS, Licensee desires Licensor to create a custom computer program and
user manual (the "Program") for the purpose of operating Licensee's business on
Licensee's hardware; and
WHEREAS, Licensor is willing and has the expertise and international
technical resources and connections required to create the Program, subject to
the License in favor of Licensee as set forth below; and
WHEREAS, Licensee is willing to compensate Licensor for undertaking to
create a custom software application suited to Licensee's needs,
NOW THEREFORE, in consideration for the mutual promises, covenants, and
agreements made below, the parties, intending to be legally bound, agree as
follows:
LICENSE & DEVELOPMENT AGREEMENT
1. CREATION OF SPECIFICATIONS. Within thirty (30) days after the above date,
the Licensor will provide the Licensee with flow charts and performance
specifications for the Program. After the Licensor incorporates the Licensee's
modifications, if any, the parties will approve, in writing, the final flow
charts, performance specifications, and acceptance test standards (the "Final
Specifications").
2. PRICE, TERM, AND TERMINATION.
2.1 LICENSE FEES. As consideration for Licensor's development of the Program,
Licensee shall pay to Licensor a quarterly license fee of
One-hundred-twenty-five-thousand ($125,000) U.S. dollars during the term of the
License created by this Agreement, as defined in Section 8 of this Agreement.
Within thirty (30) days after the parties agree to the Final Specifications, the
Licensee shall make an initial payment of Two-hundred-fifty-thousand ($250,000)
U.S. dollars to Licensor as prepayment of the first two quarterly payments,
representing the second and third quarters of 1998. Quarterly license fee
payments shall be due and payable on the last day of each calendar quarter. A
late fee of 1.5% per late payment shall apply to any overdue payments. A payment
shall be considered overdue on the 30th calendar day after the due date.
2.2 TERM AND OPTION TO PURCHASE RIGHTS. The term of the License created by this
Agreement shall be five (5) years. At the completion of the License term,
Licensee shall have the option to purchase Licensor's full right, title, and
interest in the software Program and any patents or copyrights obtained by
Licensor on the Program for a purchase price of Five-hundred-thousand ($500,000)
U.S. dollars. Licensee's option to purchase Licensor's rights to the software
Program shall expire within ninety (90) days if not exercised by Licensee.
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2.3 Upon termination of this Agreement, Licensee shall return all magnetic or
optical copies of the licensed Program and any documentation received. Licensee
shall make no magnetic copies, and shall permanently erase all backup tapes or
other magnetic storage devices which contain all or part of the Program.
3. CREATION OF THE PROGRAM. Within one-hundred-twenty (120) days after
agreeing to the Final Specifications, the Licensor will create, test, and then
deliver to the Licensee the software portion of the Program, that the Licensee
will install onto its computer. A representative of the Licensor and the
Licensee will then jointly perform an acceptance test. If the Program does not
meet the Final Specifications, the Licensor will promptly correct and re-submit
the Program for acceptance testing. When the Program performs in accordance with
the Final Specifications, the Licensee will deliver to the Licensor a
certificate of acceptance (see Exhibit A). Once the certificate of acceptance is
delivered, the Licensor will prepare the applicable user manuals and deliver
them within thirty (30) days after the date of the certificate of acceptance.
4. MODIFICATIONS. If the Licensee desires to modify the Final Specifications,
it will notify the Licensor, and the Licensor will quote a price and revised
timetable that will be incorporated into a change order signed by both parties.
5. TRAINING. Upon delivery of the Program to the Licensee, the Licensor will
provide the Licensee with training of up to thirty (30) days, of the Licensee's
employees in the use of the Program. Licensee will reimburse the Licensor for
the reasonable out-of-pocket expenses incurred by employees of the Licensor
(transportation, room, and board in connection with the training).
6. UPDATES AND ENHANCEMENTS. Although the Licensor is not obligated to update
or enhance the Program, if it does it will promptly notify the Licensee who will
have the right to acquire the updated material at the Licensor's regular and
established prices.
7. OWNERSHIP OF THE PROGRAM. The entire right, title, and interest in the
Program and all materials relating to the Program belong to the Licensor,
subject to the license grant set forth in Section 8 of this Agreement.
8. LICENSE GRANT. The Licensor grants to the Licensee a non transferable,
exclusive, worldwide right and license to use the Program for the Licensee's
internal purposes only, subject to the terms of this Agreement (the "License").
This license shall in no way be construed to confer rights to develop derivative
works of the Licensed Software, or to make improvements, additions, revisions,
alterations, or other modifications to the Licensed Software without the prior
written consent of the Licensor.
9. MULTIPLE COPIES. For its internal purposes only, the Licensee may make
copies of and use the Program on as many computers and terminals as it owns or
leases.
10. TRANSFER OF LICENSEE'S LICENSE. The Licensee does not have the right to
sell or otherwise transfer its copies of the Program or the license granted in
Section 8 without the express written consent of the Licensor, except in
connection with a merger or the sale of all or substantially all of its assets.
In the event of such a merger or sale, the permitted successor must notify the
Licensor of its succession to the Licensee's rights and agree in writing to be
bound by the terms of this Agreement.
11. LABELS. Each copy of the Program must be conspicuously labeled or otherwise
marked in such a manner that indicates that the material is the property of the
Licensor and may not be
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used or copied except as permitted by this Agreement.
12. DEFECTS. In the event of any defect in the Program within two (2) year(s)
after the date of the certificate of acceptance, the Licensee will notify the
Licensor in writing. At no charge, the Licensor will then take prompt action to
remedy and correct any failure of the Program to meet the Final Specifications.
However, if the Licensee makes modifications to the Program, the remedy set
forth in this Section (12) will not apply.
13. WAIVER OF WARRANTY. Aside from the warranty made in Section 12 above, the
Licensor makes no other warranty of any kind, express or implied, including,
without limitation, warranties of merchantability. The Licensor will not be
liable for any damages, whether direct, indirect, special, or consequential. The
Licensee agrees that the programs are not consumer goods for purposes of federal
or state warranty laws.
14. ASSIGNMENT. Licensee may not assign its rights under this Agreement, or the
license created by this Agreement without the express written consent of the
Licensor.
15. GENERAL PROVISIONS.
15.1 WAIVER, AMENDMENT, MODIFICATION. No waiver, amendment or modification,
including those by custom, usage of trade, or course of dealing, of any
provision of this Agreement will be effective unless in writing and signed by
the party against whom such waiver, amendment or modification is sought to be
enforced. No waiver by any party of any default in performance by the other
party under this Agreement or of any breach or series of breaches by the other
party of any of the terms or conditions of this Agreement will constitute a
waiver of any subsequent default in performance under this Agreement or any
subsequent breach of any terms or conditions of that Agreement. Performance of
any obligation required of a party under this agreement may be waived only by a
written waiver signed by a duly authorized officer of the other party, that
waiver will be effective only with respect to the specific obligation described
in that waiver.
15.2 SETTLEMENT OF DISPUTES.
15.2.1 INJUNCTIVE RELIEF.
15.2.2 The Licensee agrees that if any unauthorized Program copy is made or if
the Program is used in violation of this Contract, the Licensor will have the
right to obtain an injunction against that unauthorized copying or use, in
addition to any other rights and remedies to which the Licensor may be entitled.
15.2.3 Each party acknowledges and agrees that if there is any material breach
of this Agreement, including, without limitation, unauthorized use or disclosure
of confidential information or other information of the other party, the
non-breaching party will suffer irreparable injury that cannot be compensated by
money damages and therefore will not have an adequate remedy at law.
Accordingly, if either party institutes an action or proceeding to enforce the
provisions of this Agreement, such party will be entitled to obtain such
injunctive relief, specific performance, or other equitable remedy from a court
of competent jurisdiction as may be necessary or appropriate to prevent or
curtail any such breach, threatened or actual. These will be in addition to and
without prejudice to such other rights as such party may have in law or in
equity.
15.2.4 Any dispute, controversy, or claim arising out of or related to this
Agreement, or the
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creation, validity, interpretation, breach, or termination of this Agreement
that has not been resolved amicably among the parties by mediation, will be
submitted to binding arbitration using the following procedure:
15.2.5 The arbitration will be held in the United States, at a location mutually
convenient to the parties, before a panel of three arbitrators. Either party may
demand arbitration in writing, serving on the other party a statement of the
dispute, controversy, or claim, and the facts relating to it, in reasonable
detail, and the arbitrator nominated by that party. Within thirty (30) days
after such demand, the other party will name its arbitrator, and the two
arbitrators named by the parties will, within ten (10) days, select a third
arbitrator. The arbitration will be governed by the Commercial Arbitration Rules
of the American Arbitration Association (the "AAA"), except as expressly
provided in this Article. However, the arbitration will be administered by any
organization mutually agreed upon by the parties. If the parties are unable to
agree upon the organization to administer the arbitration, it will be
administered by the AAA. The arbitrators may not amend or disregard any
provision of this section.
15.2.6 The expenses of arbitration will be borne by the party against whom the
decision is rendered, or apportioned in accordance with the decision of the
arbitrators if there is a compromise decision. Judgment upon any award may be
entered in any court of competent jurisdiction. All notices from one party to
the other relating to any arbitration under this agreement will be in writing
and will be effective if given in accordance with Section 15.13 below.
15.3 PROPRIETARY INFORMATION. Each party acknowledges that it may be furnished
with or may otherwise receive or have access to information or material which
relates to past, present or future products, software, research development,
inventions, processes, techniques, designs or technical information and data,
marketing plans, and so on, (The "Proprietary Information"). Each party agrees
to preserve and protect the confidentiality of the Proprietary Information and
all of its physical forms, whether disclosed to the other party before this
Agreement is signed or afterward. In addition, a party will not disclose or
disseminate the Proprietary Information for its own benefit or for the benefit
of any third party. The previously stated obligations do not apply to any
information which (1) is publicly known; (2) is given to a party by someone else
who is not obligated to maintain confidentiality; or (3) a party had already
developed prior to the day this Agreement is signed, as evidenced by documents.
Neither party will take or cause to be taken any physical forms of Proprietary
Information (nor make copies of same) without the other party's written
permission. Within three (3) days after the termination of this Agreement (or
any other time at the other party's request), a party will return to the other
party all copies of Proprietary Information in tangible form. Despite any other
provisions of this Agreement, the requirements of this Section will survive
termination of this Agreement.
15.4 INDEPENDENT LICENSOR. Nothing in this Agreement will be deemed to place the
parties in the relationship of employer / employee, partners, or joint
venturers. Neither party will have any right to obligate or bind the other in
any manner, except as provided for in this Agreement. Each party agrees and
acknowledges that it will not hold itself out as an authorized agent with the
power to bind the other party in any manner. Each party will be responsible for
any withholding taxes, payroll taxes, disability insurance payments,
unemployment taxes, and other similar taxes or charges with respect to its
activities in relation to performance of its obligations under this agreement.
15.5 CUMULATIVE RIGHTS. Any specific right or remedy provided in this Agreement
will not be exclusive but will be cumulative upon all other rights and remedies
set forth in this section and allowed under applicable law.
15.6 GOVERNING LAW. This Agreement will be governed by the laws of the State of
Delaware
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applicable to agreements made and fully performed in Delaware by Delaware
residents.
15.7 ENTIRE AGREEMENT. The parties acknowledge that this Agreement expresses
their entire understanding and Agreement, and that there have been no
warranties, representations, covenants or understandings made by either party to
the other except such as are expressly set forth in this section. The parties
further acknowledge that this Agreement supersedes, terminates and otherwise
renders null and void any and all prior or contemporaneous Agreements or
contracts, whether written or oral, entered into between Licensor and Licensee
with respect to the matters expressly set forth in this Agreement.
15.8 COUNTERPARTS. This Agreement may be executed in multiple counterparts, any
one of which will be deemed an original, but all of which will constitute one
and the same instrument.
15.9 COMPLIANCE WITH LAW. Both parties agree to comply with all applicable
federal, state, and local laws and regulations in performing their duties.
15.10 SEVERABILITY. If any provision of this Agreement is found invalid or
unenforceable under judicial decree or decision, the remainder will remain valid
and enforceable according to its terms. Without limiting the previous, it is
expressly understood and agreed that each and every provision of this Agreement
that provides for a limitation of liability, disclaimer of warranties, or
exclusion of damages is intended by the parties to be severable and independent
of any other provision and to be enforced as such. Further, it is expressly
understood and agreed that if any remedy under this agreement is determined to
have failed of its essential purpose, all other limitations of liability and
exclusion of damages set forth in this section will remain in full force and
effect.
15.11 NOTICES. All notices, demands or consents required or permitted under this
agreement will be in writing and will be delivered or mailed certified return
receipt requested to the respective parties at the addresses set forth above or
at such other address as such party will specify to the other party in writing.
Any notice required or permitted to be given by the provisions of this Agreement
will be conclusively deemed to have been received on the day it is delivered to
that party by U.S. Mail with acknowledgment of receipt or by any commercial
courier providing equivalent acknowledgment of receipt.
Captions and section headings used in this Agreement are for convenience
only and are not a part of this Agreement and will not be used in construing it.
We have carefully reviewed this contract and agree to and accept its terms
and conditions. We are executing this Agreement as of the day and year first
written above.
LICENSEE LICENSOR
College Resource Management, Inc. International Business Consulting, Inc.
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By By
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Title Title
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EXHIBIT A
CERTIFICATE OF ACCEPTANCE
The undersigned Licensee acknowledges that the Program has been found to
perform in accordance with the Final Specifications of the Agreement and accepts
the Program.
Date:
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College Resource Management, Inc.
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By:
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Title:
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