Exhibit 10.3
Contract of Sale and License Agreement
This Contract of Sale and License Agreement ("Agreement") is made 10/19/99,
between Real Time Strategies, Inc. d/b/a RTS Wireless, a New York Corporation
with offices at 00 Xxxx Xxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000 ("RTS") and
America Online, Inc. ("AOL"), a Delaware corporation, with offices at 00000 XXX
Xxx, Xxxxxx, Xxxxxxxx 00000.
1. Definitions. Capitalized terms used in this Agreement shall be defined as set
forth in this Section 1 or as expressly set forth elsewhere in this Agreement.
a. "Acceptance" shall mean the earlier of (i) when AOL determines to its
reasonable satisfaction that the Goods are installed and materially
conform to the product standards specified in Section 2, and (ii) when AOL
makes commercial use of the Goods; provided, however, that use of the
Goods for internal and beta testing purposes shall not be considered
"commercial use."
b. "Affiliates" shall mean an agent, distributor, or franchisee of AOL, or
an entity in which AOL owns, directly or indirectly, at least a nineteen
percent (19%) equity interest.
c. "Annual Support Plan" shall mean the RTS Wireless Customer Care Program
Support Plan Agreement between the parties executed herewith.
d. "Goods" shall mean the Hardware and Software.
e. "Hardware" shall mean the server equipment as set forth in Appendices A
and B.
f. [DELETION]
g. "Software" shall mean the RTS Software and the Third Party Software.
h. "Third Party Software" shall mean the third party software sublicensed
by RTS to AOL as set forth in Appendices A and B..
2. Deliverables. RTS shall provide AOL with the Goods and training relating
thereto, as follows:
a. Hardware. From time to time, AOL and its Affiliates may, in their sole
discretion, place one or more written orders for Hardware to RTS. RTS
agrees to sell such Hardware to AOL and its Affiliates in accordance with
the terms and conditions of this Agreement.
b. [DELETION]
c. Training. During the term of this Agreement, and provided that an
Annual Support Plan is in effect, RTS shall provide AOL (and/or its
designated contractors or Affiliates) with three (3) days of training per
year, at a time and location to be reasonably determined by AOL, about the
configuration, installation, maintenance and use of the Goods provided
under this Agreement. Such training shall be reasonably sufficient to
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Certain information included in this document has been deleted pursuant to a
request filed with the Securities and Exchange Commission to treat such
information as confidential under Rule 406 promulgated under the Securities
Act of 1933, as amended.
permit AOL to properly configure, install, maintain and use the Software
with the Hardware and equivalent equipment. AOL shall reimburse RTS for
actual travel and living expenses reasonably incurred in connection with
such training, subject to AOL's prior written approval.
3. Installation. The initial installation of Goods shall consist of the
configuration and installation of Software for two Alerting Servers, two Voice
Servers and one Database Server Cluster, as set forth in Appendix B
(collectively, the "Initial Software"). For amounts payable under Section 5(c),
RTS shall configure and install the Initial Software on the Hardware or
equivalent equipment independently obtained by AOL, such that the installed
system conforms with the specifications and performance standards in RTS's
proposal and quotation set forth in Appendix B, and such other specifications
and testing standards as are mutually agreed upon by the parties. AOL shall
reimburse RTS for actual travel and living expenses reasonably incurred in
connection with installation services, subject to AOL's prior written approval.
Upon AOL's written request, RTS shall perform configuration and installation of
subsequent deliveries of Goods, in accordance with a fee schedule to be mutually
agreed upon by the parties.
4. Title/Risk of Loss. Goods shall be delivered F.O.B. Plainview, NY. All costs
associated with shipping which include but are not limited to freight, handling,
insurance, taxes and duties, will be prepaid by RTS and added to the invoice
amount. Unless specified on each order, shipments will be wherever possible via
FedEx economy service.
5. Payment. All payments hereunder shall be made to RTS Wireless, 00 Xxxx
Xxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000.
a. Hardware and Third Party Software. Payment for Hardware and Third Party
Software shall be made in accordance with the prices listed in Appendix A
as follows:
(i) [DELETION] within thirty (30) days after contract execution by
both parties (for the initial order of Goods), and thirty (30) days
after placement of a written order by AOL (for subsequent orders of
Goods);
(ii) [DELETION] within thirty (30) days after (A) installation and
Acceptance of the Goods, if RTS is performing installation services;
provided, however, that in the event installation is delayed more
than ten (10) days after delivery of the Goods to AOL for reasons
entirely within AOL's reasonable control, then this payment shall be
made within forty (40) days after delivery; and (B) delivery of the
Goods, if RTS is not performing installation services.
b. RTS Software. Payment for RTS Software shall be as follows:
(i) [DELETION], payable within thirty (30) days after execution of
this Agreement by both parties;
(ii) [DELETION], payable within thirty (30) days after installation
by RTS and Acceptance by AOL of the Initial Software;
(iii) [DELETION], payable within thirty (30) days after [DELETION];
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(iv) [DELETION], payable within thirty (30) days after [DELETION].
c. Installation. AOL shall pay [DELETION] within thirty (30) days after
installation by RTS of the Initial Cluster, as set forth in Section 2.
d. Support. AOL shall pay the first year of support fees under the Annual
Support Plan contemporaneously with payments due under Section 5(b)(ii).
If AOL should fail to make any payments in accordance with this Section 5, RTS
shall provide written notification to AOL of such late payment. If AOL does not
make payment to RTS within thirty (30) days following such notice, RTS at its
option may treat AOL's failure to pay as a material breach of this Agreement,
and may terminate this Agreement and/or seek legal remedies. Termination shall
not have any effect on AOL's existing rights to Hardware already purchased and
Software already licensed hereunder, which shall survive termination.
6. Delivery. Timeframe for delivery of Goods shall be as reasonably specified by
AOL after consultation with RTS. RTS shall use commercially reasonable efforts
to deliver the Software to AOL by electronic means, such as through an ftp site.
RTS is responsible for proper packaging so the Goods will arrive at the
destination without damage.
7. Payment of Taxes. AOL agrees to pay all taxes of every description, federal,
state, and municipal, that arise as a result of this sale, excluding income
taxes.
8. Warranties.
a. Performance. RTS warrants that all Goods shall be free of defects in
material and workmanship and shall conform to the details set forth in the
proposal and quotation which is attached to this agreement as Appendix B.
RTS will repair or replace any non-conforming Goods in accordance with the
Annual Support Plan. The limited warranty does not apply if the
non-conformity is due to alteration, neglect, misuse, or abuse by
customer; if repairs have been attempted by anyone other than RTS or a
party authorized by RTS; or if the non-conformity is caused by accident,
acts of God, or other causes beyond the reasonable control of RTS and its
licensors.
b. Year 2000. RTS warrants that without any requirement for any human
intervention whatsoever (i) the overall operation, functions and
performance of the Goods will be unaffected in any way by any date data,
date setting, date value, date input or other date related data and any
combination thereof (collectively with records using such data, the "Date
Data"), whether falling on, after or before September 9, 1999, December
31, 1999 or January 1, 2000 (collectively, the "Millennium Dates"); (ii)
the Goods will correctly and accurately store, define, merge, archive,
display, recognize, return, manage, extract, support, calculate, compare,
manipulate, sort, accept, sequence, present and conduct any other
operation or process on, any Date Data, will not abnormally end as a
result of Date Data, and will move backwards and forwards across Date Data
without error relating to or occasioned by Date Data; and (iii) the Goods
shall correctly accommodate same century and multi-century formulas in
data calculations, shall process two digit century Date Data in a manner
that correctly resolves any ambiguities as to
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intended century date and shall correctly reflect each century in Date
Data values and Date Data interface values.
c. Authority and Rights. RTS represents and warrants that it has the
authority and all rights necessary to grant the rights and licenses and to
fulfill the obligations set forth in this Agreement. In the event of any
breach or threatened breach of the foregoing representation and warranty
with respect to the Goods, AOL's sole remedy shall be to require RTS to
either: i) procure, at RTS' expense, the right to use the Goods in
accordance with this Agreement, or ii) replace the Goods or any part
thereof that is in breach, such replacement to be with Goods of comparable
functionality that does not cause any breach. AOL represents and warrants
that it has the authority and power necessary to carry out its obligations
under this Agreement.
d. Disclaimer. RTS makes no warranties, expressed or implied, except as
specifically stated above. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
e. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
ANY LOST PROFITS, OR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF
ANY NATURE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
f. Indemnity. RTS agrees to defend, indemnify, hold harmless, and protect
AOL, its affiliates, successors, assignees, customers, and users from any
and all claims, demands, suits at law or equity, and all expenses
including attorney's fees, involving infringement or alleged infringement
of any patent, trademark, or copyright resulting from the purchase, use,
or sale of the Goods.
9. [DELETION]
10. Force Majeure. If performance of this Agreement or any obligation under this
Agreement is prevented, restricted, or interfered with by causes beyond either
party's reasonable control ("Force Majeure"), and if the party unable to carry
out its obligations gives the other party prompt written notice of such event,
then the obligations of the party invoking this provision shall be suspended to
the extent necessary by such event. The term Force Majeure shall include,
without limitation, acts of God, fire, explosion, vandalism, storm or other
similar occurrence, orders or acts of military or civil authority, or by
national emergencies, insurrections, riots, wars, supplier failures, shortages,
breach, or delays.
The excused party shall use reasonable efforts under the circumstances to avoid
or remove such causes of non-performance and shall proceed to perform with
reasonable dispatch whenever such causes are removed or ceased. An act or
omission shall be deemed within the reasonable control of a party if committed,
omitted, or caused by such party, or its employees, officers, agents, or
affiliates.
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11. Dispute Resolution. In the event of any dispute or controversy arising out
of or relating to this Agreement, the parties agree to exercise their best
efforts to resolve the dispute as soon as possible. The parties shall, without
delay, continue to perform their respective obligations under this Agreement
which are not affected by the dispute. To invoke the dispute resolution process
set forth in this Section 11, the invoking party shall give to the other party
written notice of its decision to do so, including a description of the issues
subject to the dispute and a proposed resolution thereof. Designated
representatives of both parties shall attempt to resolve the dispute within five
(5) working days after such notice. If those designated representative cannot
resolve the dispute, the parties shall meet at a mutually agreeable location and
describe the dispute and their respective proposals for resolution to a senior
executive of AOL and the President of RTS, who shall act in good faith to
resolve the dispute.
12. Confidentiality. Both parties acknowledge that during the course of this
Agreement, each may obtain confidential information regarding the other party's
business. Such information shall be marked or otherwise identified to be
confidential at the time of the disclosure. Both parties agree to treat all such
information and the terms of this Agreement as confidential and to take all
reasonable precautions against disclosure of such information to unauthorized
third parties during and after the term of this Agreement. Upon request by a
disclosing party, all documents relating to the confidential information will be
returned to such disclosing party. The confidentiality obligations set forth in
this Agreement do not apply with respect to information that (i) was in the
receiving party's possession before receipt from the disclosing party; (ii) is
or becomes a matter of public knowledge through no fault of the receiving party;
(iii) is rightfully received by the receiving party from a third party without a
duty of confidentiality; (ii) is disclosed by the disclosing party to a third
party without a duty of confidentiality on the third party; (v) is independently
developed by the receiving party; (vi) is disclosed under compulsion of law,
except that the receiving party will disclose only such information as is
legally required and will use reasonable efforts to obtain confidential
treatment for any confidential information that is so disclosed; or (vii) is
disclosed by the receiving party with the disclosing party's prior written
approval.
13. Publicity. RTS shall not make any public statement or press announcement
concerning this Agreement or AOL without AOL's prior written consent.
14. Assignment. Neither party shall assign or subcontract its rights and duties
under this Agreement without the prior written consent of the other party, given
that consent will not be unreasonably withheld.
15. Entire Agreement. This Agreement, including Appendices A and B and the
Annual Support Plan, contains the entire agreement of the parties with respect
to the subject matter contained herein, and there are no other promises or
conditions in any other agreement whether oral or written. This Agreement
supersedes any prior written or oral agreements between the parties.
16. Amendment. This Agreement may be modified or amended if the amendment is
made in writing and is signed by both parties.
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17. Severability. If any provision of this Agreement shall be held to be invalid
or unenforceable for any reason, the remaining provisions shall continue to be
valid and enforceable. If a court finds that any provision of this Agreement is
invalid or unenforceable, then such provision shall be replaced with a valid
provision that most closely approximates the economic effect and intent of the
invalid provision, and the Agreement shall be deemed to be written, construed,
and enforced as so limited.
18. Waiver of Contractual Right. The failure of either party to enforce any
provision of this Agreement shall not be construed as a waiver or limitation of
that party's right to subsequently enforce and compel strict compliance with
every provision of this Agreement.
19. Applicable Law. This Agreement shall be governed by the laws of the State of
New York, without reference to its conflicts of laws provisions.
Real Time Strategies, Inc. d/b/a RTS Wireless
By: /s/ Xxxxxxx Kravita
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Title: Executive Vice President and Chief Financial Officer
America Online, Inc.
By: /s/ Xxxxx Colbwin
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Title: President, Business Affairs
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Appendix A
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[DELETION]
Appendix B
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[DELETION]
