Exhibit 10.6
SRI Agreement No. ____________
SOFTWARE DEVELOPMENT AGREEMENT
THIS SOFTWARE DEVELOPMENT AGREEMENT dated as of August 21, 1997,
(hereinafter "Agreement"), is entered into between SRI INTERNATIONAL, a
California nonprofit public benefit corporation (hereinafter "SRI"), having a
place of business located at 000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx
00000-0000, and CONNECTSOF COMMUNICATIONS CORPORATION, a Delaware corporation
(hereinafter "CCC"), having a place of business located at 00000 XX 00xx Xxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000.
WITNESSETH
WHEREAS, SRI owns or has rights in certain software commonly referred to by
SRI as its Open Agent Architecture Facilitator and Libraries;
WHEREAS, CCC desires to have SRI develop certain derivative works of the
Core OAA as defined below on the terms and subject to the conditions of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants herein contained, the parties hereby agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the terms defined in this article shall
have the respective meanings set forth below:
1.1 "CORE OAA" shall have the meaning set forth in the License
Agreement.
1.2 "Confidential Information" shall mean with respect to a party hereto
(the "Disclosing Party"), collectively, all technical, financial and
business information of any kind whatsoever, and all tangible and
intangible embodiments thereof of any kind whatsoever, disclosed by
the Disclosing Party to the other party hereto (the "Receiving
Party") or obtained by the Receiving Party through observation or
examination of the foregoing, but only to the extent such
information or embodiment is maintained as confidential by the
Disclosing Party and is marked or otherwise identified as
confidential when disclosed to the Receiving Party or, in the case
of information given verbally, is identified as confidential in a
written document received by the Receiving Party within forty-five
(45) days after verbal disclosure to the Receiving Party.
SRI Agreement No. ____________
1.3 "DEVELOPMENT PERIOD" shall mean the period commencing on the
Effective Date, and, unless terminated earlier as provided in this
Agreement or extended by the mutual written agreement of the
parties, expiring on the date that SRI delivers the Port to CCC in
accordance with the Statement of Work.
1.4 "DEVELOPMENT PROGRAM" shall mean the software development work
performed by SRI in accordance with the Statement of Work.
1.5 "EFFECTIVE DATE" shall mean the date first-written above.
1.6 "LICENSE AGREEMENT" shall mean the License Agreement dated s of the
date of this Agreement, between the parties (as renewed, amended or
restated from time to time).
1.7 "OBJECT CODE" shall mean any machine executable code derived in
whole or part from the Source Code.
1.8 "PERSON" shall mean an individual, corporation, partnership, limited
liability company, trust, business trust, assoc8iation, joint stock
company, joint venture, pool, syndicate, sole proprietorship,
unincorporated organization, governmental authority or any other
form of entity not specifically listed herein.
1.9 "PORT" shall mean the program which results from SRI's conversion
pursuant to the Development Program of all or part of the Core OAA
to a new programming paradigm using a refined communications model
to better support distributed objects. Port does not include
enhancements made by CCC to the4 Core OAA and agent library that are
outside4 the current scope of OAA.
1.10 "SOURCE CODE" shall mean all human readable code which documents
the4 Licensed Software (as defined in the License Agreement),
including all related compilers, utilities, listings, rest suites,
build scripts, libraries, design documentation, and technical
documentation.
1.11 "SRI INTELLECTUAL PROPERTY RIGHTS" shall mean all parents, patent
applications, copyrights, know-how and other intellectual property
rights in any country of any type whatsoever, in or to the Port, and
any other discoveries, inventions and results by SRI under the
Development Program.
1.12 "STATEMENT OF WORK" shall mean the description of the research and
development to be performed, attached hereto as Exhibit A, and
incorporated herein by this reference, as advised from time to time
by the written agreement of the parties.
SRI Agreement No. ____________
2. DEVELOPMENT PROGRAM
2.1 Conduct of Development. During the Development Period, SRI shall
conduct the Development Program in accordance with the Statement of
Work and in compliance in all material respects with all applicable
laws and regulations. SRI shall develop and provide CCC with the
Port in accordance with the Statement of Work. SRI shall use its
commercially reasonable efforts to provide CCC with the Port by
March 6, 1998.
2.2 Fees. In consideration for the development services to be performed
by SRI. CCC will pay SRI for the consulting and development
services in accordance with SRI's standard hourly rates for
comparable development services plus approved travel expenses. SRI
estimates that the Development Program can be completed for $126,000
plus approved travel expenses. All such travel expenses shall be
approved in writing in advance by CCC. SRI shall not incur charges
in conducting the Development Program in excess of the total amount
estimated, and CCC shall have no obligation to reimburse SRI for
charges incurred in excess of such total amount estimated, unless
otherwise expressly agreed to in writing by CCC. If it appears to
SRI that the Development Program cannot be completed without
incurring charges or expenses in excess of the total amount
estimated, SRI shall promptly notify CCC and CCC shall determine
whether to (a) discontinue the Development Program and terminate
this Agreement, or (b) authorize SRI to spend additional amounts, or
(c) revise the scope of the Development Program as appropriate.
Development fees are payable as follows:
PAYMENT DATE AMOUNT
--------------------------------------------- ------------
Upon execution of this Agreement $30,000
On the date 31 days after the Effective Date, $20,000
provided that this Agreement has not been
previously terminated by CCC pursuant to
Section 6.2 below
When the fees and expenses for work performed by SRI have reached an
aggregate of $50,000, SRI shall thereafter invoice CCC monthly for
fees and expenses incurred in the immediately preceding month, with
such invoices being due and payable thirty (30) days from receipt of
the invoice by CCC.
Upon receipt of the first payment listed above, SRI shall initiate
work on the Development Program.
2.3 RECORDS. SRI shall maintain records, in sufficient detail and in
good scientific manner, which shall reflect all work done and
results achieved in the performance of the Development Program
(including all data in the form required under any applicable laws
and regulations).
SRI Agreement No. ____________
3. DISCLAIMER OF WARRANTIES
3.1 EXCEPT AS EXPRESSLY STATED HEREIN OR IN THE LICENSE AGREEMENT, SRI
EXCLUDES AND DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED,
INLCUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANGEABILITY, AND FITNESS FOR A PARTICULR PURPOSE AND
NON-INFRINGEMENT, WITH RESPECT TO THE WORK PERFORMED UNDER THE
DEVELOPMENT PROGRAM. SRI DOES NOT WARRNT THE ACCOMPANYING
DOCUMENTATION AND ALL RESPONSIBILITY PERTAINING TO THE USE THEREOF
UNDER THIS AGREEMENT IS HEREBY ASSUMED BY CCC.
3.2 NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS A REPRESENTATION
MADE OR WARRANTY GIVEN BY SRI THAT ANY PATENT WILL ISSUE BASED UPON
ANY WORK PERFORMED BY SRI UNDER THE DEVELOPMENT PROGRAM OR, SUBJECT
TO THE REPRESENTATIONS GIVEN IN PARAGRAPH 2.2 OF THE LICENSE
AGREEMENT, THAT SUCH WORK WILL NOT INFRINGE UPON THE PATENT OR
PROPRIETARY RIGHTS OF ANY OTHER PERSON.
4. CONFIDENTIALITY
4.1 CONFIDENTIAL INFORMATION. Each party shall maintain in confidence
the Source code and other Confidential Information disclosed by the
other party. Subject to the provisions of Section 3.2 of the
License Agreement neither party shall use, disclose or grant the use
of the other's Confidential Information except on a need-to-know
basis to those directors, officers, employees, agents, sublicensees
and permitted assignees, to the extent such disclosure is reasonably
necessary in connection with its activities as expressly authorized
by this Agreement, prior to disclosure, the party wishing to
disclose the other's confidential Information shall obtain the
written agreement of any such Person, who is not otherwise bound by
fiduciary obligations to it, to hold in confidence and not make use
of the confidential Information for any purpose other than those
permitted by this Agreement. Each party shall notify the other upon
discovery of any unauthorized use or disclosure of that party's
Confidential Information.
4.2 PERMITTED DISCLOSURES. The nonuse and nondisclosure obligations
contained in this article shall not apply to the extent that:
(a) The Receiving Party is required to
(i) disclose information by law, order or regulation of
governmental agency or a court of competent
jurisdiction; or
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(ii) the information was rightfully known by the Receiving
Party (as shown by its written records) prior to the
date of disclosure to it by the Disclosing Party; or
(iii) the information was disclosed to the Receiving Party on
an unrestricted basis from a third party not under a
duty of confidentiality to the Disclosing Party or
(iv) the information was independently developed by
employees or agents of the Receiving Party without
access to the Confidential Information of the
Disclosing Party.
4.3 TERMS OF THIS AGREEMENT. Except as otherwise provided in this
article, SRI and CCC shall not disclose any terms or conditions of
this Agreement to any third party without the prior consent of the
other party.
4.4 USE OF NAMES: Except as required by law, neither CCC nor SRI shall
issue any press release or other public statements in connection
with this Agreement intended for use in the public media in a manner
suggesting any endorsement by the other of CCC or SRI, respectively,
without the prior approval of such other party, which approval shall
not be unreasonably withheld or delayed. Notwithstanding the above,
with the prior approval of the other as to form, either SRI or CCC
may acknowledge to third parties the other party's contributions to
the Licensed Software or to CCC's Licensed Products under the
License Agreement.
5. INTELLECTUAL PROPERTY RIGHTS
SRI shall exclusively own all right, title and interest in and to the Port
and any other discoveries, inventions and results of the Development
Program, together with all SRI Intellectual Property Rights. CCC shall
acquire no right, title, license or interest in or to the Port and any
other discoveries, inventions and results of the Development Program or in
the SRI Intellectual property Rights pursuant to this Agreement. Any and
all license rights granted by SRI to CCC therein or thereto shall be
expressly set forth in the License Agreement executed simultaneously with
this Agreement or in a subsequent written document duly negotiated,
executed and delivered by both parties.
6. TERMINATION
6.1 EXPIRATION. This Agreement shall expire at the end of the
Development Period, unless terminated earlier as provided herein or
extended by mutual written agreement of the parties.
6.2 TERMINATION BY CCC FOR PATENT INFRINGEMENT REASONS. If patent
counsel for CCC reasonably determines that the Licensed Software is
reasonably likely to infringe the valid patent claims of a third
party and (as a result thereof) CCC reasonably
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believes that it will be unable to commercialize the Licensed
Software, CCC shall have the right (but not the obligation) to
terminate this Agreement by giving SRI express written notice
thereof on or before the date 30 days after the Effective Date. SRI
will reasonably cooperate with CCC and its patent counsel to conduct
patent due diligence during such time period. If CCC fails to
timely give such notice, then CCC shall have no right to terminate
this Agreement pursuant to this Section 6.2.
6.3 TERMINATION FOR BREACH. Except as otherwise provided in the article
below regarding force majeure, a party may terminate this Agreement:
(a) upon or after the material breach of this Agreement or the
License Agreement by the other party if that party has not
cured such breach within either
(i) ten (10) days after receipt of written notice thereof
by the non-breaching party for breaches involving the
payment of money; or
(ii) thirty (30) days after receipt of written notice
thereof by the non-breaching party for breaches not
involving the payment of money; or
(b) if the other party voluntarily commences any action or seeks
any relief regarding its liquidation, reorganization,
dissolution or similar act or any other relief under any
bankruptcy, insolvency or similar law against the other party,
without its consent, which continues undismissed or unstayed
for a period of sixty (60) days.
6.4 SURVIVAL.
6.4.1 Termination of this Agreement for any reason shall not
release either party hereto from any liability which at the
time of such termination has already accrued to the other
party.
6.4.2 Expiration or termination of this Agreement shall not
relieve the parties of any obligation accruing prior to such
expiration or termination, and the provisions of Article 4
shall survive the expiration or termination of this
Agreement.
6.5 PAYMENT DUE AFTER TERMINATION. In the event of termination by
either party (other than by CCC under Section 6.3 above), SRI shall
be entitled to receive payment of all unpaid amounts for services
completed prior to the date of termination, for contractual
commitments made to third parties prior to the notice of termination
to the extent that liability for such commitments cannot be
mitigated and for such reasonable costs and expenses as are
necessary to terminate the services.
SRI Agreement No. ____________
7. LIMITED LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY
FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES (INCLUDING
LOST PROFITS OR ANTICIPATED REVENUES) ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR WITH RESPECT TO ANY CLAIM, DEMAND, ACTION OR OTHER PROCEEDING
RELATING TO THIS AGREEMENT HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY
(INCLUDING NEGLIGENCE) WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF UCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THIS AGREEMENT, IN NO EVENT SHALL SRI'S LIABILITY OWING TO CCC OR ANY THIRD
PARTY WITH RESPECT TO ANY CLAIM, DEMAND, ACTION OR OTHER PROCEEDING
RELATING TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CCC TO
SRI UNDER THIS AGREEMENT AND THE LICENSE AGREEMENT.
8. DISPUTE RESOLUTION
8.1 COMMERCIAL ARBITRATION. Except for the right of either party to
apply to a court of competent jurisdiction for a temporary
restraining order or preliminary injunction to preserve the status
quo or prevent irreparable harm pending the selection and
confirmation of a panel of arbitrators, any dispute arising under
this Agreement shall be resolved through mediation and arbitration.
The parties agree to first try to resolve the dispute informally
with the help of a mutually agreed upon mediator. If the parties
cannot agree on a mediator or fail to arrive at a mutually
satisfactory solution through mediation, the parties agree to submit
their dispute to binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association. The arbitration shall take place in San Francisco,
California if initiated by CCC and in Seattle, Washington if
initiated by SRI.
8.2 SELECTION OF ARBITRATORS. The arbitration may be conducted by one
impartial arbitrator by mutual agreement or by three arbitrators if
the parties are unable to agree on a single arbitrator within ten
(10) days of first demand for arbitration. All arbitrators are to
be selected from a panel provided by the American Arbitration
Association. The chair shall be an attorney at law, and all
arbitrators shall have a background or training either in computer
law, computer software technology or marketing of computer software
products.
8.3 DISCOVERY AND ARBITRATION PROCEDURES. Upon request of a party, the
arbitrators shall have the authority to permit discovery to the
extent they deem appropriate. A court reporter shall record the
arbitration hearing and the reporter's transcript shall be the
official transcript of the proceeding. The arbitrators shall have
no power to add or detract from the agreements of the parties and
may not make any
SRI Agreement No. ____________
ruling or award that does not conform to the terms and conditions of
this Agreement. The arbitrators shall have no authority to award
punitive damages or any other damages not measured by the prevailing
party's actual damages. The arbitrators shall specify the basis for
any damage award and the types of damages awarded. The decision of
the arbitrators shall be final and binding on the parties and may be
entered and enforced in any court of competent jurisdiction by
either party.
8.4 COSTS AND ATTORNEY'S FEES. The prevailing party in the arbitration
proceedings shall be awarded reasonable attorneys fees, expert
witness costs and expenses and all other costs and expenses incurred
in connection with the proceedings, unless the arbitrators shall for
good cause determine.
9. REPRESENTATIONS AND WARRANTIES
9.1 CORPORATE EXISTENCE AND POWER. Such party (a) is a corporation duly
organized, validly existing and in good standing under the laws of
the state in which it is incorporated; (b) has the corporate power
and authority and the legal right to own and operate its property
and assets, to lease the property and assets it operates under
lease, and to carry on its business as it is now being conducted and
(c) is in compliance with all requirements of applicable law, except
to the extent that any noncompliance would not have a material
adverse effect on the properties, business, financial or other
condition of it and would not materially adversely affect its
ability to perform its obligations under the Agreement.
9.2 AUTHORIZATION AND ENFORCEMENT OF OBLIGATIONS. Such party (a) has
the corporate power and authority and the legal right to enter into
the Agreement and to perform its obligations hereunder and (b) has
taken all necessary corporate action on its part to authorize the
execution and delivery of the Agreement and the performance of its
obligations hereunder. The Agreement has been duly executed and
delivered on behalf of such party, and constitutes a legal, valid,
binding obligation, enforceable against such party in accordance
with its terms.
9.3 NO CONSENTS. All necessary consents, approvals and authorizations
of all governmental authorities and other Persons required to be
obtained by such party in connection with the Agreement have been
obtained.
9.4 NO CONFLICT. The execution and delivery of the Agreement and the
performance of such party's obligations hereunder (a) do not
conflict with or violate any requirement of applicable laws or
regulations, and (b) do not conflict with, or constitute a default
under, any contractual obligation of it.
10. GENERAL
SRI Agreement No. ____________
10.1 GOVERNING LAW. This Agreement shall be governed by, and construed
and interpreted in accordance with, the laws of California, without
regard to conflicts of laws principles.
10.2 INDEPENDENT CONTRACTORS. The relationship of CCC and SRI
established by this Agreement is that of independent contractors.
Nothing in this Agreement shall be construed to create any other
relationship between CCC and SRI. Neither party shall have any
right, power or authority to assume, create or incur any expense,
liability or obligation, express or implied, on behalf of the other.
10.3 ASSIGNMENT. This Agreement may not be assigned or transferred
(directly or indirectly) by either party whether voluntarily, by
operation of law, change in control or otherwise, without the prior
express written consent of the other party, except to any entity
under common control with a party or an entity that succeeds to all
or substantially all of the assigning party's business or assets
relating to this Agreement whether by sale, merger, operation of law
or otherwise; provided that such assignee or transferee agrees in
writing to be bound by the terms and conditions of this Agreement.
Any assignment or transfer in violation of this section shall be
void.
10.4 FORCE MAJEURE. Neither party shall be held liable or responsible to
the other party nor be deemed to have defaulted under or breached
this Agreement for failure or delay in fulfilling or performing any
term of this Agreement (other than the payment of money) to the
extent, and for so long as, such failure or delay is caused by or
results from causes beyond the reasonable control of the affected
party including but not limited to fires, earthquakes, floods,
embargoes, wars, acts of war (whether war is declared or not),
insurrections, riots, civil commotions, strikes, lockouts or other
labor disturbances, acts of God or acts, omissions or delays in
acting by any governmental authority or other party.
10.5 NOTICES. Any consent, notice or other communication required or
permitted to be given or made under this Agreement by one party to
the other party shall be made in writing and delivered by any lawful
means and addressed to the other party t its address indicated
below, or to such other address or to such other address as the
addressee shall have last furnished in writing to the addressor.
Except as otherwise provided in this Agreement, such consent,
notice, or communication shall be effective upon receipt by the
addressee.
If to SRI: If to CCC:
--------- ---------
SRI International ConnectSoft Communications
000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000 00000 XX 00xx Xxxxx, Xxxxx 000,
Attn: Xxxxxx X. Xxxxx Xxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000 Attn: President
Facsimile: (000) 000-0000 Telephone: 000-000-0000
SRI Agreement No. ____________
Facsimile: 000-000-0000
With a copy to:
--------------
Greenberg, Traurig, Hoffman,
Lipoff, Xxxxx & Quentel
Citicorp Center
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
10.6 MODIFICATION; WAIVER. This Agreement may not be altered, amended or
modified in any way except by a writing signed by the party against
whom enforcement is sought. The failure of a party to enforce any
provision of this Agreement shall not be construed to be a waiver of
the right of such party to thereafter enforce that provision or any
other provision or right.
10.7 HEADINGS. Headings included herein are for convenience only, do not
form a part of this Agreement and shall not be used in any way to
construe or interpret this Agreement.
10.8 SEVERABILITY. If any provision of this Agreement shall be found by
a court to be void, invalid or unenforceable, the same shall be
reformed to comply with applicable law or stricken if not so
conformable, so as not to affect the validity or enforceability of
the remainder of this Agreement.
10.9 ENTIRE AGREEMENT. The parties hereto acknowledge that this
Agreement, the License Agreement and their respective Exhibits set
forth the entire agreement and understanding of the parties hereto
as to the subject matter hereof and thereof, and supersedes all
prior discussions, agreements and writings in respect hereto.
10.10 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but both of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
SRI INTERNATIONAL CONNECTSOFT COMMUNICATIONS
CORPORATION
_____________________ ------------------------
SRI Agreement No. ____________
By: Xxxxx Xxxxx By: Xxxxxx Xxxxxx
Title: Senior Contract Administrator Title: President
SRI Agreement No. ____________
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (hereinafter "Agreement") is made as of August 21,
1997, (the "Effective Date") by and between SRI INTERNATIONAL, a California
nonprofit public benefit corporation, having a place of business at 000
Xxxxxxxxxx Xxxxxx, Xxxxx Xxxx, XX 00000 (hereinafter "SRI") and CONNECTSOFT
COMMUNICATIONS CORPORATION, a Delaware corporation (hereinafter "CCC"), having a
place of business at 00000 XX 00xx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000.
WITNESSETH
WHEREAS, SRI has developed, is continuing to develop and has rights to
certain software commonly referred to by SRI as its Open Agent Architecture
Facilitator and Libraries;
WHEREAS, concurrently herewith, the parties are entering into a Software
Development Agreement pursuant to which CCC is engaging SRI to develop certain
derivative works of such software;
WHEREAS, CCC desires to obtain, and SRI is willing to grant, a license to
such software and derivative works on the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and provisions hereinafter set forth, the parties do hereby agree as follows:
ARTICLES
1. DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
indicated:
1.1 "ADD-ONS OR PLUG-IN" shall mean enhancements to Core OAA whose
purpose is to facilitate the writing, debugging, documentation, and
distribution of OAA agents.
1.2 "CONFIDENTIAL INFORMATION" shall mean with respect to a party hereto
(the "Disclosing Party"), collectively, all technical, financial and
business information of any kind whatsoever, and all tangible and
intangible embodiments thereof of any kind whatsoever, and all
tangible and intangible embodiments thereof of any kind whatsoever,
disclosed by the Disclosing Party to the other party hereto (the
"Receiving Party") or obtained by the Receiving Party through
observation or examination of the foregoing, but only to the extent
such information or embodiment is maintained as confidential by the
Disclosing Party and is marked or otherwise identified as
confidential when disclosed to the Receiving Party or, in the case
of information given verbally, is identified as confidential in a
written document received by the Receiving Party within forty-five
(45) days after verbal disclosure to the Receiving Party.
SRI Agreement No. ____________
1.3 "CORE OAA" shall mean the current version of the Source Code, Object
Code, materials, information, data and documentation, which exists
and is in the custody and control of SRI as its Open Agent
Architecture Facilitator and Libraries and is more particularly
described on Exhibit A.
1.4 "CORE OAA ENHANCEMENTS" shall mean those certain algorithms and
documentation which constitute modifications or enhancements to the
Core OAA and which are developed by SRI prior to the third
anniversary of the date of this Agreement.
1.5 "DERIVATIVE WORK" shall mean a work that is based upon the Port,
such as revision, modification, translation, expansion, or any other
form in which such Port may be recast, transformed or adapted and
that if prepared without the authorization of SRI would constitute
copyright infringement or other infringement of the proprietary
rights of SRI.
1.6 "LICENSED PRODUCT" shall mean a product or process which, directly
or indirectly, incorporates, contains, is derived by use of or is
made using the Licensed Software or a Derivative Work.
1.7 "LICENSED SOFTWARE" shall mean, collectively, the Core OAA, the Core
OAA Enhancements and the Port, in both Source Code and Object Code
Form.
1.8 "NET SALES" shall mean, with respect to any Licensed Product, the
invoiced sales price of such Licensed Product billed to independent
customers who are not affiliates, less to the extent included in the
invoiced sales price, (a) credits, allowances, discounts and rebates
to, and chargebacks from the account of, such independent customers
for damaged, rejected or returned Licensed Product; (b) actual
freight and insurance costs incurred in transporting such Licensed
Product in final form to such customers; (c) cash, quantity and
trade discounts; and (d) sales, use, value-added and other taxes or
governmental charges incurred in connection with the exportation or
importation of such Licensed Product in final form.
1.9 "OBJECT CODE" shall mean any machine executable code derived in
whole or in part from the Source Code.
1.10 "PERSON" shall mean an individual, corporation, partnership, limited
liability company, trust, business trust, association, joint stock
company, joint venture, pool, syndicate, sole proprietorship,
unincorporated organization, governmental authority or any other
form of entity not specifically listed herein.
1.11 "PORT" shall have the meaning set forth in the Software Development
Agreement.
SRI Agreement No. ____________
1.12 "SOFTWARE DEVELOPMENT AGREEMENT" shall mean the Software Development
Agreement dated as of the date of this Agreement, between the
parties (as amended or restated from time to time).
1.13 "SOURCE CODE" shall mean all human readable code which documents the
Licensed Software, including all related compilers, utilities,
listings, test suites, build scripts, libraries, design
documentation, and technical documentation.
1.14 "SRI INTELLECTUAL PROPERTY RIGHTS" shall mean all patents, patent
applications, copyrights, know-how and other intellectual property
rights in any country of any type whatsoever, owned by or licensed
to SRI, in or to the Licensed Software, all to the extent and only
to the extent that it is owned by or licensed to SRI, and SRI has
the right to grant CCC licenses, immunities and other rights
thereunder without payment of any fees or royalties to third
parties.
2. REPRESENTATIONS
2.1 Each party hereby represents and warrants to the other party as
follows;
2.1.1 CORPORATE EXISTENCE AND POWER. Such party (a) is a
corporation duly organized, validly existing and in good
standing under the laws of the state in which it is
incorporated; (b) has the corporate power and authority and
the legal right to own and operate its property and assets,
to lease the property and assets it operates under lease,
and to carry on its business as it is now being conducted;
and (c) is in compliance with all requirements of applicable
law, except to the extent that any noncompliance would not
have a material adverse effect on the properties, business,
financial or other condition of it and would not materially
adversely affect its ability to perform its obligations
under this Agreement.
2.1.2 AUTHORIZATION AND ENFORCEMENT OF OBLIGATIONS. Such party
(a) has the corporate power and authority and the legal
right to enter into this Agreement and to perform its
obligations hereunder and (b) has taken all necessary
corporate action on its part to authorize the execution and
delivery of this Agreement and the performance of its
obligations hereunder. This Agreement has been duly
executed and delivered on behalf of such party, and
constitutes a legal, valid, binding obligation, enforceable
against such party in accordance with its terms.
2.1.3 NO CONSENTS. All necessary consents, approvals and
authorizations of all governmental authorities and other
Persons required to be obtained by such party in connection
with this Agreement have been obtained.
2.1.4 NO CONFLICT. The execution and delivery of this Agreement
and the performance of such party's obligations hereunder
(a) do not confict with
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or violate any requirement of applicable laws or
regulations, and (b) do not conflict with, or constitute a
default under, any contractual obligation of it.
2.2 SRI represents and warrants to CCC as follows:
2.2.1 the Licensed Software does not infringe the copyrights of
any third party or constitute a misappropriation of the
trade secrets of any third party;
2.2.2 to the best current actual knowledge of Xxxxxxx Xxxxxxxx,
Xxxx Xxxxxx, Xxxxxx X. Xxxxx, Xxx Xxxxx, Xxxx Xxxxx and Xx
Xxxxx, the Licensed Software does not infringe the patent
rights of any third party; and
2.2.3 to the best current actual knowledge of Xxxxxxx Xxxxxxxx,
Xxxx Xxxxxx, Xxxxxx X. Xxxxx, Xxx Xxxxx, Xxxx Xxxxx and Xx
Xxxxx, there is no pending or threatened litigation,
including court, administrative or arbitration proceedings,
which if decided adversely to SRI would materially adversely
affect SRI's ownership rights in the Licensed Software, or
the right of SRI to grant the licenses hereunder.
3. LICENSE
3.1 GRANT. On the terms and subject to the conditions of this
Agreement, SRI hereby grants to CCC a non-exclusive, worldwide,
royalty-bearing, license, with the right to grant sublicenses
(subject to the provisions of Section 3.2 below), under the SRI
Intellectual Property Rights (a) to use, copy and reproduce the
Licensed Software, (b) to prepare Derivative Work based upon the
Licensed Software and to use, xxx and reproduce such Derivative
Works, and (c) to market, distribute and otherwise exploit the
Licensed Software and such Derivative Works by sale or other
transfer of ownership, or by rental, lease or lending.
3.2 SUBLICENSES. CCC shall not transfer the Source Code to any third
party, for any purpose whatsoever, except
(a) to a customer, contractor or collaborator of CCC who has a need
to know and then only for the purpose of developing Licensed
Products for CCC or incorporating CCC software into another
Licensed Product for CCC; provided, however, that any such
customer, contractor or collaborator shall agree in writing to
maintain in confidence, the Source Code and all other SRI
Confidential Information, as defined in Article 5, to refrain
from transferring the Source Code and all other SRI
Confidential Information to any third party, and to only use
the Source Code and all other SRI Confidential Information for
the limited purpose for which CCC has transferred that
information.
SRI Agreement No. ____________
(b) Upon request, CCC shall deliver to SRI a copy of each
sublicense of the Licensed Software executed under this
Agreement. Each sublicense shall be subject to the terms and
conditions of this Agreement.
3.3 GOVERNMENTAL RIGHTS. The parties understand that some or all of the
SRI Intellectual Property Rights may have been developed with
funding from the United States Government and, if so, that the
United States Government may have certain rights thereto under 35
U.S.C. Sections 200 ET SEQ.
3.4 RETAINED RIGHTS.
Notwithstanding Section 3.1 above, the parties acknowledge and agree
that the license granted to CCC by this Agreement is subject to
SRI's reservation of the below rights:
(a) the right to use the Licensed Software for research and
government purposes without restriction;
(b) certain rights in favor of the United States Government
pursuant to Title 00 Xxxxxx Xxxxxx Code Chapter 18 and the
regulations promulgated thereunder; and
(c) the right to license the Port to third parties subject to the
following restrictions on SRI and such third parties (other
than the United States government) for the period beginning on
the date on which the parties execute this Agreement and ending
either eighteen (18) months thereafter or twelve (12) months
after the first commercial sale hereunder by CCC, whichever is
earlier.
(i) the third party licensee may not sell or distribute
products which, directly or indirectly, incorporate,
contain, are derived byuse of or are made using the
Port; and
(ii) neither the third party licensee nor SRI may publicly
announce that the third party's products incorporate or
are based upon the Port.
After the expiration of the above period, SRI shall have the
right to license Port to any third party for any commercial
purpose without restriction.
3.5 TECHNICAL ASSISTANCE
3.5.1 Upon execution of this Agreement, SRI shall disclose and
make available to CCC such information as is available to
SRI and was not previously disclosed to CCC regarding the
Licensed Software. From time to time during the term of
this Agreement, SRI shall disclose and make available to CCC
such additional information as is available to SRI and was
not
SRI Agreement No. ____________
previously disclosed to CCC regarding the Licensed Software.
Notwithstanding anything to the contrary in this Agreement,
except as expressly set forth in the Software Development
Agreement, SRI shall have no obligation to develop any
updates or enhancements to, or future versions of the
Licensed Software.
3.5.2 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 2.2 ABOVE, THE
LICENSED SOFTWARE AND ALL INFORMATION PROVIDED BY SRI UNDER
THIS AGREEMENT ARE PROVIDED "AS IS" AND WITHOUT ANY
REPRESENTATION OR WARRANTY OF MERCHANTIBILITY OR FITNESS FOR
ANY PARTICULAR PURPOSE OR ANY WARRANTY THAT THE USE OF THE
INFORMATION OR MATERIALS WILL NOT INFRINGE OR VIOLATE ANY
PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER
PERSON.
3.6 OPTION TO CERTAIN IMPROVEMENTS. If SRI develops any Add-ons or
Plug-ins to the Core OAA and desires to license the same to any
third party prior to the third anniversary of the date of this
Agreement, then to the extent that SRI has the right to grant CCC
licenses, immunities and other rights thereunder without payment of
any fees or royalties to third parties, SRI shall offer to CCC the
opportunity to obtain a non-exclusive license thereto on terms and
conditions no less favorable to CCC than the terms and conditions
that SRI offers to any third party.
4. ROYALTIES
4.1 ROYALTY RATE. In consideration for the grant of the licenses
hereunder, CCC shall pay to SRI royalties in the amount of one
percent (1%) of Net Sales of Licensed Products.
4.2 REPORTS, EXCHANGE RATES. During the term of this Agreement, CCC
shall furnish to SRI a quarterly written report showing in
reasonably specific detail (a) the gross sales of each Licensed
Product sold by CCC, its affiliates and its sublicensees during the
reporting period; (b) the calculation of Net Sales from such gross
sales; (c) the calculation of the royalties payable in United States
dollars, if any, which shall have accrued hereunder based upon Net
Sales of each Licensed Product; and (d) the exchange rates used in
determining the amount of United States dollars. With respect to
sales of Licensed Products invoiced in United States dollars, the
gross sales, Net Sales, and royalties payable shall be expressed in
United States dollars. With respect to sales of Licensed Products
invoiced in a currency other than United States dollars, the gross
sales, Net Sale and royalties payable shall be expressed in the
domestic currency of the party making the sale together with the
United States dollar equivalent of the royalty payable, calculated
using the average of the closing buying rate for such currency
quoted in the continental terms method of quoting exchange rates
(local currency
SRI Agreement No. ____________
per US$1) by Bank of America NT&SA in London, England on each of
the last business day of each month in the quarter prior to the date
of payment. Reports shall be due on the sixtieth (60th) day
following the close of each quarter. CCC shall keep complete and
accurate records in sufficient detail to properly reflect all gross
sales and Net Sales and to enable the royalties payable hereunder to
be determined.
4.3 AUDITS
4.3.1 Upon the prior written request of SRI and not more than once
in each calendar year, CCC shall permit an independent
certified public accounting firm of nationally recognized
standing, selected by SRI and reasonably acceptable to CCC,
at SRI's expense, to have access during normal business
hours to such of the records of CCC as may be reasonably
necessary to verify the accuracy of the royalty reports
hereunder for any calendar year ending not more than
thirty-six (36) months prior to the date of such request.
The accounting firm shall disclose to SRI only whether the
records are correct or not and the specific details
concerning any discrepancies. No other information shall be
shared.
4.3.2 If such accounting firm concludes that additional royalties
were owed during such period, CCC shall pay the additional
royalties within thirty (30) days of the date SRI delivers
to CCC such accounting firm's written report so concluding.
The fees charged by such accounting firm shall be paid by
SRI; PROVIDED, HOWEVER, if the audit discloses that the
royalties payable by CCC for the audited period are more
than one hundred five percent (105%) of the royalties
actually paid for such period, then CCC shall pay the
reasonable fees and expenses charged by such accounting
firm.
4.3.3 CCC shall include in each permitted sublicense granted by it
pursuant to this Agreement a provision requiring the
sublicensee to make reports to CCC, and to keep and maintain
records of sales made pursuant to such sublicense.
4.3.4 SRI shall treat all financial information subject to review
under this Article 4 or under any sublicense agreement as
confidential, and shall cause its accounting firm to retain
all such financial information in confidence.
4.4 PAYMENT TERMS. Royalties shown to have accrued by each royalty
report provided for under this Article 4 shall be due and payable on
the date such royalty report is due. Payment of royalties in whole
or in part may be made in advance of such due date.
4.5 PAYMENT METHOD. All payments by CCC to SRI under this Agreement
shall be paid in United States dollars, and all such payments shall
be originated from a
SRI Agreement No. ____________
United States bank located in the United States and made by bank
wire transfer in immediately available funds to such account as SRI
shall designate before such payment is due.
4.6 EXCHANGE CONTROL. If at any time legal restrictions prevent the
prompt remittance of part or all royalties with respect to any
country where the Licensed Product is sold, payment shall be made
through such lawful means or methods as CCC reasonably shall
determine and to which SRI does not reasonably object.
4.7 WITHHOLDING TAXES. All amounts owing from CCC to SRI under this
Agreement are net amounts, and shall be grossed-up to account for
any withholding taxes, value-added taxes or other taxes, levies or
charges with respect to such amounts payable by CCC or required to
be withheld by CCC, other than (a) United States taxes, and (b)
taxes are imposed solely by reason of SRI having a permanent
establishment in any other country or otherwise being subject to
taxation by such other country (except solely by reason of the
license granted under this Agreement).
5. CONFIDENTIALITY
5.1 CONFIDENTIAL INFORMATION. Each party shall maintain in confidence
the Source Code and other Confidential Information disclosed by the
other party. Subject to the provisions of Section 3.2 above,
neither party shall use, disclose or grant the use of the other's
Confidential Information except on a need-to-know basis to those
directors, officers, employees, agents, collaborators, sublicensees
and permitted assignees, to the extent such disclosure is reasonably
necessary in connection with its activities as expressly authorized
by this Agreement. To the extent that disclosure is authorized by
this Agreement, prior to disclosure, the party wishing to disclose
the other's Confidential Information shall obtain the written
agreement of any such Person, who is not otherwise bound by
fiduciary obligations to it, to hold in confidence and not make use
of the Confidential Information for any purpose other than those
permitted by this Agreement. Each party shall notify the other upon
discovery of any unauthorized use or disclosure of the other party's
Confidential Information.
5.2 PERMITTED DISCLOSURES. The nonuse and nondisclosure obligations
contained in this article shall not apply to the extent that:
(a) The Receiving Party is required to
(i) disclose information by law, order or regulation of a
governmental agency or a court of competent
jurisdiction; or
(ii) disclose information to any governmental agency for
purposes of obtaining approval to test or market a
product, provided in either case that the Receiving
Party shall provide written notice thereof to
SRI Agreement No. ____________
the Disclosing Party and sufficient opportunity to
object, time permitting, to any such disclosure or to
request confidential treatment thereof; or
(b) The Receiving Party can demonstrate that
(i) the information was public knowledge at the time of
such disclosure by the Receiving Party, or thereafter
became public knowledge, other than as a result of acts
attributable to the Receiving party in violation
hereof; or
(ii) the information was rightfully known by the Receiving
Party (as shown by its written records) prior to the
date of disclosure to it by the Disclosing Party; or
(iii) the information was disclosed to the Receiving Party on
an unrestricted basis from a third party not under a
duty of confidentiality to the Disclosing Party; or
(iv) the information was independently developed by
employees or agents of the Receiving Party without
access to the Confidential Information of the
Disclosing Party.
5.3 OTHER PERMITTED DISCLOSURES. CCC may disclose SRI's Confidential
Information and/or the terms of this Agreement to potential
investors and potential corporate partners provided CCC uses
reasonable means to protect the confidentiality of the SRI
Confidential Information disclosed.
5.4 CONFIDENTIAL TERMS. Except as expressly provided herein (including
without limitation in connection with CCC's exercise of its right to
grant sublicenses), each party agrees not to disclose any terms of
this Agreement to any third party without the consent of the other
party, except as required by securities or other applicable laws, to
prospective investors and to such party's accountants, attorneys and
other professional advisors, or otherwise under reasonable
conditions of confidentiality.
6. DUE DILIGENCE
CCC shall have discretion over the commercialization of the Licensed
Products. However, CCC agrees to use its commercially reasonable efforts
to introduce commercially one or more Licensed Product(s) as soon as
practical, consistent with sound and reasonable business practices and
judgments. CCC shall be deemed to have satisfied its obligations under
this Section 6.1 if CCC has an ongoing and active development program or
marketing program, as appropriate, directed toward bringing such Licensed
Products to market and meeting the market demand therefor.
SRI Agreement No. ____________
7. TERMINATION
7.1 AUTOMATIC TERMINATION. This Agreement shall terminate
automatically, without further action by either party, upon
termination of the Development Agreement by CCC pursuant to Section
6.2 thereof.
7.2 TERMINATION BY CCC. After termination of the Software Development
Agreement, CCC may terminate this Agreement at any time upon ninety
(90) days prior express written notice to SRI.
7.3 TERMINATION FOR BREACH. Except as otherwise provided in the article
below regarding force majeure, a party may terminate this Agreement:
(a) upon or after the material breach of this Agreement or the
Development Agreement by the other party if that party has not
cured such breach within either
(i) ten (10) days after receipt of written notice thereof
by the non-breaching party for breaches involving the
payment of money; or
(ii) thirty (30) days after receipt of written notice
thereof by the non-breaching party for breaches not
involving the payment of money; or
(b) if the other party voluntarily commences any action or seeks
any relief regarding its liquidation, reorganization,
dissolution or similar act or under any bankruptcy, insolvency
or similar law; or
(c) if a proceeding is commenced or an order, judgment or decree is
entered seeking the liquidation, reorganization, dissolution or
similar law against the other party, without its consent, which
continues undismissed or unstayed for a period of sixty (60)
days.
7.4 SURVIVAL
7.4.1 Termination of this Agreement for any reason shall not
release either party hereto from any liability which at the
time of such termination has already accrued to the other
party.
7.4.2 In the event this Agreement is terminated for any reason,
CCC and its Affiliates shall have the right to sell or
otherwise dispose of the stock of any Licensed Products then
on hand.
7.4.3 Articles 5 and 8 shall survive the expiration and any
termination of this Agreement. Except as otherwise provided
in this Article 7, all rights and
SRI Agreement No. ____________
obligations of the parties under this Agreement shall
terminate upon the expiration or termination of this
Agreement.
7.4.4 Upon termination of this Agreement, all licenses granted
herein shall cease, except that (i) termination (other than
termination pursuant to Section 7.1 above) shall not affect
the rights of any users of License Products that acquired
such Licensed Products prior to the effective date of
termination, and (ii) following termination (other than
termination pursuant to Section 7.1 above), CCC shall have a
perpetual limited license to use the License Software solely
for the purpose of providing technical support to users of
the Licensed Products that acquired such Licensed Products
prior to the effective date of the termination.
8. INDEMNIFICATION
8.1 INDEMNIFICATION BY CCC. CCC shall hold SRI and its directors,
trustees, officers, employees, agents and the successors and assigns
of any of the foregoing harmless against any and all losses,
liabilities, damages and expenses (including reasonable attorneys'
fees and costs) incurred as a result of any claim, demand, action or
proceeding by any third party resulting from, in conjunction with,
or arising out of the acts or omissions of CCC including but not
limited to the:
(a) use by CCC, its directors, trustees, officers, employees,
contractors, subcontractors and agents, of the Licensed
Software or the SRI Intellectual Property Rights; or
(b) development, design, manufacture, distribution or use of
Licensed Products.
8.2 INDEMNIFICATION BY SRI. SRI shall hold CCC and its directors,
officers, employees, agents and the successors and assigns of any of
the foregoing harmless from any and all losses, liabilities, damages
and expenses (including reasonable attorneys' fees and costs)
incurred as a result of any claim, demand, action or proceeding by
any third party resulting from, in conjunction with, or arising out
of any material misrepresentation by SRI under Article 2 of this
Agreement.
8.3 PROCEDURE. A party (the "Indemnitee") that intends to claim
indemnification under this article shall promptly notify the other
party (the "Indemnitor") of any claim, demand, action or other
proceeding with respect to which the Indemnitee intends to claim
such indemnification. The Indemnitor shall have the right to
participate in, and to the extent it so desires, jointly with any
other Indemnitor similarly noticed, to assume the defense thereof
with counsel selected by the Indemnitor at the Indemnitor's sole
expense. The Indemnitee shall have the right in its discretion to
be represented by independent counsel of its own selection at its
sole expense; PROVIDED, HOWEVER, that the expenses of such
independent
SRI Agreement No. ____________
counsel shall be paid by the Indemnitor if representation of the
Indemnitor by the counsel retained by the Indemnitor would be
inappropriate due to actual or potential differing interests between
the Indemnitee and any other party represented by such counsel in
such claim, demand, action or other proceeding. The Indemnitor's
indemnity obligations under this article shall not apply to amounts
paid in any settlement if effected without the prior express written
consent of the Indemnitor, which consent shall not be unreasonably
withheld or delayed. The Indemnitor shall not settle or consent to
an adverse judgment in any such claim, demand, action or other
proceeding that adversely affects the rights or interests of any
Indemnitee or imposes additional obligations on such Indemnitee,
without the prior written consent of such Indemnitee. The
Indemnitee, its employees and agents, shall cooperate fully with the
Indemnitor and its legal representatives in the investigation of any
claim, demand, action or other proceeding covered by this
indemnification.
9. USE OF NAMES
EXCEPT AS REQUIRED BY LAW, NEITHER CCC NOR SRI SHALL ISSUE ANY PRESS
RELEASE OR OTHER PUBLIC STATEMENTS IN CONNECTION WITH THIS AGREEMENT
INTENDED FOR USE IN THE PUBLIC MEDIA IN A MANNER SUGGESTING ANY ENDORSEMENT
BY THE OTHER OF CCC OR SRI, RESPECTIVELY, WITHOUT THE PRIOR APPROVAL OF
SUCH OTHER PARTY, WHICH APPROVAL SHALL NOT BE UNREASONABLY WITHHELD OR
DELAYED. NOTWITHSTANDING THE ABOVE, WITH THE PRIOR APPROVAL OF THE OTHER
AS TO FORM, EITHER SRI OR CCC MAY ACKNOWLEDGE TO THIRD PARTIES THE OTHER
PARTY'S CONTRIBUTIONS TO THE LICENSED SOFTWARE OR TO CCC'S LICENSED
PRODUCTS UNDER THIS AGREEMENT. WHERE PRACTICAL, CCC SHALL ACKNOWLEDGE
SRI'S DEVELOPMENT OF CORE OAA AND THE LICENSED SOFTWARE WHEN MARKETING ANY
OF THE LICENSED PRODUCTS WHICH INCORPORATE, RELY ON, OR IN ANY WAY USE CORE
OAA OR THE LICENSED SOFTWARE.
10. DISPUTE RESOLUTION
10.1 COMMERCIAL ARBITRATION. Except for the right of either party to
apply to a court of competent jurisdiction for a temporary
restraining order or preliminary injunction to preserve the status
quo or prevent irreparable harm pending the selection and
confirmation of a panel of arbitrators, any dispute arising under
this Agreement shall be resolved through mediation and arbitration.
The parties agree to first try to resolve the dispute informally
with the help of a mutually agreed upon mediator. If the parties
cannot agree on a mediator or fail to arrive at a mutually
satisfactory solution through mediation within ten days following
the commencement of such mediation, the parties agree to submit
their dispute to binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association. The arbitration shall take place in San
SRI Agreement No. ____________
Francisco, California if initiated by CCC and in Seattle, Washington
if initiated by SRI.
10.2 SELECTION OF ARBITRATORS. The arbitration may be conducted by one
impartial arbitrator by mutual agreement or by three arbitrators if
the parties are unable to agree on a single arbitrator within ten
(10) days of first demand for arbitration. All arbitrators are to
be selected from a panel provided by the American Arbitration
Association. The chair shall be an attorney at law, and all
arbitrators shall have a background or training either in computer
law, computer software technology or marketing of computer software
products.
10.3 DISCOVERY AND ARBITRATION PROCEDURES. Upon request of a party, the
arbitrators shall have the authority to permit discovery to the
extent they deem appropriate. A court reporter shall record the
arbitration hearing and the reporter's transcript shall be the
official transcript of the proceeding. The arbitrators shall have
no power to add or detract from the agreements of the parties and
may not make any ruling or award that does not conform to the terms
and conditions of this Agreement. The arbitrators shall have no
authority to award punitive damages or any other damages not
measured by the prevailing party's actual damages. The arbitrators
shall specify the basis for any damage award and the types of
damages awarded. The decision of the arbitrators shall be final and
binding on the parties and may be entered and enforced in any court
of competent jurisdiction by either party.
10.4 COSTS AND ATTORNEY'S FEES. The prevailing party in the arbitration
proceedings shall be awarded reasonable attorney fees, expert
witness costs and expenses and all other costs and expenses incurred
in connection with the proceedings, unless the arbitrators shall for
good cause determine otherwise.
11. GENERAL
11.1 GOVERNING LAW. This Agreement shall be governed by, and construed
and interpreted in accordance with, the laws of California, without
regard to conflicts of laws principles.
11.2 INDEPENDENT CONTRACTORS. The relationship of CCC and SRI
established by this Agreement is that of independent contractors.
Nothing in this Agreement shall be construed to create any other
relationship between CCC and SRI. Neither party shall have any
right, power or authority to assume, create or incur any expense,
liability or obligation, express or implied, on behalf of the other.
11.3 ASSIGNMENT. This Agreement may not be assigned or transferred
(directly or indirectly) by CCC whether voluntarily, by operation of
law, change in control or otherwise, without the prior express
written consent of SRI, except to an entity under common control
with CCC or an entity that succeeds to all or substantially all of
CCC's business or assets relating to this Agreement whether by sale,
SRI Agreement No. ____________
merger, operation of law or otherwise, provided that such assignee
or transferee agrees in writing to be bound by the terms and
conditions of this Agreement. Any assignment or transfer in
violation of this section shall be void.
11.4 INSURANCE. CCC shall maintain comprehensive general liability
insurance, including contractual and product liability (when it has
products) insurance, against claims for bodily injury or property
damage arising from its activities contemplated by this Agreement,
with insurance companies reasonably acceptable to SRI, and in
amounts not less than $1,000,000 per occurrence and $2,000,000 in
the aggregate. CCC shall maintain such insurance for so long as it
continues to conduct its activities contemplated by this Agreement
and thereafter for so long as CCC maintains insurance for itself
covering such activities. Upon request, CCC shall provide SRI with
certificates of insurance evidencing CCC's compliance with the
insurance requirements of this section.
11.5 LIMITATION OF LIABILITY. EXCEPT AS SET FORTH IN ARTICLE 8, NEITHER
PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY
SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES (INCLUDING
LOST OR ANTICIPATED REVENUES OR PROFITS RELATING TO THE SAME),
ARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT, WHETHER SUCH
CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR
OTHERWISE, EVEN IF AN AUTHORIZED REPRESENTATIVE OF SUCH PARTY IS
ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SAME. NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL SRI'S
LIABILITY OWING TO CCC OR ANY THIRD PARTY WITH RESPECT TO ANY CLAIM,
DEMAND, ACTION OR OTHER PROCEEDING RELATING TO THIS AGREEMENT OR THE
DEVELOPMENT AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CCC
TO SRI UNDER THIS AGREEMENT AND THE SOFTWARE DEVELOPMENT AGREEMENT.
11.6 FORCE MAJEURE. Neither party shall be held liable or responsible to
the other party nor be deemed to have defaulted under or breached
this Agreement for failure or delay in fulfilling or performing any
term of this Agreement (other than the payment of money) to the
extent, and for so long as, such failure or delay is caused by or
results from causes beyond the reasonable control of the affected
party including but not limited to fires, earthquakes, floods,
embargoes, wars, acts of war (whether war is declared or not),
insurrections, riots, civil commotions, strikes, lockouts or other
labor disturbances, acts of God or acts, omissions or delays in
acting by any governmental authority or other party.
11.7 NOTICES. Any consent, notice or other communication required or
permitted to be given or made under this Agreement by one party to
the other party shall be made in writing and delivered by any lawful
means and addressed to the other party at
SRI Agreement No. ____________
its address indicated below, or to such other address or to such
other address as the addressee shall have last furnished in writing
to the addressor. Except as otherwise provided in this Agreement,
such consent, notice, or communication shall be effective upon
receipt by the addressee.
SRI Agreement No. ____________
IF TO SRI: IF TO CCC:
--------- ---------
SRI INTERNATIONAL CONNECTSOFT COMMUNICATIONS CORPORATION
000 XXXXXXXXXX XXXXXX 00000 XX 00XX XXXXX, XXXXX 000
XXXXX XXXX, XXXXXXXXXX 00000 XXXXXXXX, XXXXXXXXXX 00000
ATTN: XXXXXX X. XXXXX ATTN: PRESIDENT
TELEPHONE: (000) 000-0000 TELEPHONE: (000) 000-0000
FACSIMILE: (000) 000-0000 FACSIMILE: (000) 000-0000
WITH A COPY TO:
--------------
GREENBERG, TRAURIG, HOFFMAN,
LIPOFF, XXXXX & QUENTEL
CITICORP CENTER
000 X. 00XX XXXXXX
XXX XXXX, XXX XXXX 00000
ATTN: XXXX XXXXX
TELEPHONE: (000) 000-0000
FACSIMILE: (000) 000-0000
11.8 COMPLIANCE WITH LAW. CCC and SRI each shall comply with all
applicable federal, state and local laws and regulations in
connection with its activities pursuant to this Agreement.
11.9 MODIFICATION: WAIVER. This Agreement may not be altered, amended
or modified in any way except by a writing signed by the party
against whom enforcement is sought. The failure of a party to
enforce any provision of this Agreement shall not be construed to be
a waiver of the right of such party to thereafter enforce that
provision or any other provision or right.
11.10 HEADINGS. Headings included herein are for convenience only, do not
form a part of this Agreement and shall not be used in any way to
construe or interpret this Agreement.
11.11 SEVERABILITY. If any provision of this Agreement shall be found by
a court to be void, invalid or unenforceable, the same shall be
reformed to comply with applicable law or stricken if not so
conformable, so as not to affect the validity or enforceability of
the remainder of this Agreement.
11.12 ENTIRE AGREEMENT. The parties hereto acknowledge that this
Agreement, the Software Development Agreement and their respective
Exhibits set forth the
SRI Agreement No. ____________
entire agreement and understanding of the parties hereto as to the
subject matter hereof, and thereof and supersedes all prior
discussions, agreements and writings in respect hereto.
11.13 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but both of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
SRI INTERNATIONAL CONNECTSOFT COMMUNICATIONS
CORPORATION
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxx Xxxxxx
------------------------- -----------------------
By: Xxxxxx X. Xxxxx By: Xxxxxx Xxxxxx
Title: Senior Vice President and Title: President
General Counsel
