1
Exhibit 10.10
IBM VoiceType Application Factory for Windows 95TM
Run-time License Agreement ("AGREEMENT")
This Agreement is valid only if signed and received by IBM by 12/31/96.
PART I. DEFINITIONS
1.1 Applications are copies of software products that include Code that you
develop and provide to Customers and internal end users under your
company agreements. An Application includes the original release only
of the same product.
1.2 Code is the U.S. English only beta version of the IBM VoiceType
Run-time files for Windows 95 as listed on the VoiceType Application
Factory for Windows 95 CD-ROM in the RUNTIME DOC file.
1.3 Customer is an end user authorized to use the Applications for internal
productive use and not for remarketing. Customers do not include your
internal end users.
1.4 Distributors are any business entitled you use to distribute
Applications.
1.5 Enhancements are changes or additions other than Maintenance
Modifications, to the Code.
1.6 Maintenance Modifications are revisions that correct any mistake,
problem or defect that causes the Code in your Application to
malfunction or to fail to meet its specifications.
1.7 Trademark is the IBM VoiceType name or other trademark or logo
designated by IBM to you in writing.
PART 2. LICENSE AND WARRANTY
2.1 IBM licenses you under its copyrights an internal license to prepare
derivative works of the file ICSSWAPLDLL to the extent required to
produce Applications in accordance with the instructions as detailed in
the IBM VoiceType Application Factor Technical Reference Manual. IBM
further licenses you under its copyrights an external license to
reproduce and distribute this derivative work in Applications. This
license includes the right to license others to use and execute the
derivative works only as part of Applications.
2.2 You may not, except as otherwise provided herein.
a) use, copy, modify, merge, or transfer copies of the Code
except as provided in this license;
b) reverse, assemble or reverse compile the Code; or
c) sublicense, rent, lease, or assign the Code.
23. IBM grants you a nonexclusive, limited, nontransferable worldwide
personal right to use the Trademark as described herein.
2
2.4 At IBM's request, you will provide copies of your agreements used to
license the Code as part of your Application. You will obtain the
Customer's agreement to, and ensure your internal end users comply
with, Customer obligations in your agreements that include the
substance of the following:
a) authorization to make one copy of the Code for backup or
archival purposes only.
b) authorization to transfer the Code as part of the Application
to another party provided:
1) the Customer transfers a copy of the license
agreement, related licensed materials and at least
one unaltered copy of the Application to the other
party; and
2) such transfer terminates the Customers license;
c) prohibition from any other copying of the Code,
d) direction to destroy or disable all copies of the Code upon
license termination;
e) prohibition from reverse assembling, reverse compiling or
translating the Code except as permitted by law without the
possibility of contractual waiver; and
f) statements that:
1) the Code is copyrighted and licensed; it is not sold.
You do not pass title to the Code;
2) the Applications provided may contain, or be
derivative works of, materials licensed by a third
party. You have assumed responsibility for these
materials and their use in the Application.
You also will state in your written agreements with Customers that
third party suppliers of the Code disclaim all implied warranties. This
disclaimer will include the implied warranties of noninfringement,
merchantability and fitness for a particular purpose. These agreements
will also limit liabilities to a reasonable amount and state, in
comparable words, "The collective liabilities of the seller/licenser
and its third party suppliers are subject to the limitation of
liabilities described in this agreement. Third party suppliers disclaim
all liability for consequential or other indirect damages. The third
party supplier is an intended beneficiary of these limitations and
disclaimers and the limitation of liabilities for seller/licensor and
its suppliers are not cumulative."
2.5 IBM DOES NOT WARRANT THAT THE CODE OR APPLICATIONS WILL MEET THE
REQUIREMENTS OF YOU, YOUR DISTRIBUTORS OR CUSTOMERS, OR THAT THEIR
OPERATION WILL BE UNINTERRUPTED OR ERROR FREE, IBM PROVIDES THE CODE
"AS IS" WITHOUT WARRANTY, IBM DISCLAIMS ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR NONINFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
2.6 Notwithstanding the foregoing provisions of this section, nothing
herein shall be deemed to grant any other implied rights or licenses to
you.
PART 3. YOUR RESPONSIBILITIES
3.1 In the event you create an Application you will:
2
3
a) integrate and distribute the Code as specified in Section 2
into all copies of the Application.
b) provide the Code in object code only under your license
agreement as part of your Application;
c) include written copyrights and other notices on the
Application sufficient to protect or intellectual property
rights of IBM and others in the Code.
d) include on the Application a U.S. Government user limited and
restricted rights notice that complies .
e) be solely responsible to anyone receiving your Application for
any support, service, Enhancements, Maintenance Modifications,
or technical or other assistance; and
f) not provide anything to the end users that would enable them
to invoke the Code directly.
3.2 You will reproduce on all copies of the Application, all copyright
notices, acknowledgments of contributions, and legends of ownership of
the Trademark(s) appearing in or on corresponding portions of the Code.
In addition, you will include the Trademark(s) on your Application
packaging or a statement indicating IBM VoiceType technology is
included in your Application in accordance with instructions provided
by IBM which may change from time to time. You will use the appropriate
trademark and trademark symbol (either "TM" or an R in a circle in a
superscript in the United States and as appropriate under local law
elsewhere) and clearly indicate IBM's ownership of its trademarks
whenever the Trademark is first displayed in the Application and as
mentioned in any advertisements, brochure, package or in any other
manner in connection with the Application. Your use of the Trademark
shall only be in connection with your marketing of the Application and
not with any other goods or services offered by you and will only be
used to make factual statements. You will not, at any time during the
term of this Agreement, use any name or trademark confusingly similar
to the Trademark and you agree that your use of the Trademark will not
directly or indirectly create in or for you any right, title or
interest in the Trademark. You agree that the Trademark together with
the goodwill of the business symbolized thereby are the sole and
exclusive properties of IBM. The use by you of the Trademark shall
inure solely to the benefit of IBM. Your name or trademarks will not be
displayed in relation to the Trademark in a manner that suggests that
your name or trademarks are part of or related to the Trademark. You
may not display the Trademark as prominent or more prominent than your
name, trademarks, tradenames or those of any third party. At IBM's
request, you agree to change any promotional, advertising or related
materials which IBM determines to be inaccurate, objectionable,
misleading or a misuse of the Trademark. You will be responsible for
the expense of any such change.
3.3 You agree that it is of fundamental important to IBM that Code bearing
Trademark(s) be of the highest quality and integrity and that the
Trademark(s) be property used and displayed. IBM shall have the
absolute and uncontested right to inspect and verify the quality of
goods sold, licensed, or transferred using the Trademark(s). Upon
request you will make a reasonable number of specimens of such goods
available for IBM's inspection. IBM shall promptly notify you of any
failure to satisfy IBM quality standards following IBM's inspection. If
you fail to
3
4
meet the quality standards set forth in this Agreement, you shall be
deemed to be in breach hereof which must be corrected to IBM's
satisfaction within thirty (30) days of being put on notice. Until such
breach is corrected you may not sell or distribute any Code with the
Trademark(s).
PART 4. ORDERS AND PAYMENT
4.1 You will pay IBM the royalties listed below. IBM will not issue
invoices for royalties due. You will pay royalties to IBM as specified
below. All royalties for licenses to Code must be paid by December 31,
1996.
4.2 Royalty payments, except as described in Section 4.3 are due 30 days
after the end of each calendar quarter during which Applications are
distributed, licensed or placed in service. All payments will be made
in U.S. dollars.
4.3 Royalty payments for Applications distributed or licensed after
09/30/96 are due on or before December 31, 1996.
4.4 For each copy of your Application, or a derivative work of it, that you
license or distribute you will pay IBM the applicable fixed dollar
royalty amount in the following table:
LICENSES AMOUNT
First 250 $250.00
251-20,000 $ 1.00
20,001-100,000 $ 0.50
100,000+ $ 0.25
4.5 You will pay amounts equal to any applicable taxed resulting from any
transaction under this Agreement unless you can show that you are
exempt. This does not include taxed based on IBM's net income. You are
responsible for personal property taxes and any import or export duties
or tariffs resulting from the shipment, import or export of any
Applications.
4.6 You will provide a statement with each payment that includes the
following information for each Distributor and each country where you
license the Code.
a) number of copies of Code in Applications you provide to
Distributors;
b) number of copies of Code in Applications licensed to
Customers;
c) number of copies of Code licensed to you internal end users;
d) total royalties due; and
e) an explanation of the royalty calculation.
In addition, you will provide a statement with payment that includes
the number of copies of Code which you are ordering to license in
Applications for the period as described in Section 5.2 below.
4
5
4.7 You will send your signed Agreement, all fees, royalties and taxes, and
the statement of royalties, to the following address:
ORM Branch Office JWQ
Mail Drop 305
000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
You will reference "VoiceType Application Factory for Windows 95
Run-Time" on your statement.
PART 5. TERM AND TERMINATION
5.1 This Agreement begins on the date you sign below and shall terminate on
December 31, 1996. IBM may terminate this Agreement for your breach by
providing a 30 day notice that describes the breach. The termination
will not be effective if the breach is cured within the notice period.
Termination or expiration of the Agreement does not affect previously
granted paid-up rights and licenses to Customers and your internal end
users for so long as they remain in compliance with your customer
license agreements.
5.2 Up to December 31, 1997, you may license and distribute copies of Code
as part of your Application, for such copies of Code which were ordered
and which royalty payment was made on or before December 31, 1996.
5.3 The following sections will survive and extend beyond termination or
expiration of this Agreement.
a) Section 2.4;
b) Section 3 (for all authorized copies of the Application
distributed after termination); and
c) Sections 5, 6 and 7.
PART 6. LIMITATION OF LIABILITY
6.1 Except as provided below, IBM is only responsible for the amount of
actual loss or damage, up to the amount you paid for the Code that are
the subject of the claim.
6.2 IBM is responsible for bodily injury (including death) and damage to
real property or tangible personal property caused by the Code as
provided by IBM. You are responsible for bodily injury (including
death) and damage to real property or tangible personal property caused
by the your Applications. You indemnify and hold IBM harmless from and
against any claims or liabilities arising out of the use, reproduction,
or distribution of your Application. IBM is not responsible for damages
arising from or related to use of the Code in any country where you are
not authorized to market Applications.
5
6
6.3 Neither party is liable to the other for economic consequential damages
(including lost profits or savings) or incidental damages, even if
informed that they may occur. Under no circumstances will IBM indemnify
you or be liable for any of the following:
a) third party claims against you for losses or damages other
than those described in Section 6.l2 above;
b) loss of, or damage to, any records or data;
c) testing, safety or performance of your Applications;
d) your modifications of the Code or its use in other than its
specified environment;
e) the combination, operation or use of the Code with any
product, data or apparatus that IBM did not provide; or
f) the use of the Code for medical applications or with nuclear
materials or other hazardous activities.
PART 7. GENERAL
7.1 The terms of this Agreement will prevail. Terms in your purchase orders
and IBM's invoices are void.
7.2 You will maintain relevant records to support invoices issued or
payments made to IBM and to show you have otherwise complied with this
Agreement. You will retain and make available records for three years
from the date of the related transaction or payment. If IBM requests,
you will make financial records available to an independent auditor
chose and compensated by IBM. IBM's requests will be in writing and
will not occur more than once each year. If any audit discovers that
you underpaid IBM, you will pay the amount due plus interest and
attorney's fees. Interest accrues from the payment due date. The
interest rate is the lower of 2% per month or the highest interest rate
allowed by law. If you have underpaid IBM by more than 5% , you will
reimburse IBM for all expenses associated with the audit. On IBM's
request, you will provide assurances satisfactory to IBM, including
substantiating documentation, showing that you have been and are in
compliance with the terms of this Agreement. IBM may also have other
remedies under the law and this Agreement.
7.3 Your Distributor agreements for Applications will be consistent with
your obligations under this Agreement. You will ensure that your
Distributors comply with these obligations. IBM may survey your
Distributors to review compliance.
7.4 You may not assign or transfer this Agreement or your rights under it
or delegate or subcontract your obligations without IBM's prior written
approval.
7.5 This is the exclusive agreement between the parties related to this
subject matter. For a change to the Agreement to be valid, both parties
must sign it. No approval, consent or waiver will be enforceable unless
signed by the granting party. Failure to insist on strict performance
or to
6
7
exercise a right when entitled does not prevent a party from doing so
later for that breach or a future one.
7.6 IBM does not have any plans at this time to provide Maintenance
Modifications or Enhancements for the Code during the term of this
Agreement.
7.7 You are authorized to distribute Code in your Applications worldwide
except as prohibited by applicable law. In addition, upon notice from
IBM, you will discontinue distribution in any jurisdiction where IBM,
in its discretion, determines it cannot adequately protect its
intellectual property in the Code. IBM provides Programs with limited
and restricted rights for U.S. Government users. You are the exporter
of record.
7.8 Neither party will issue press releases or other publicity regarding
this Agreement or our relationship under it without the prior written
approval of the other party.
7.9 Neither party may bring an action, regardless of form, more than two
years after the cause of action arose. Both parties will act in good
faith to resolve disputes. Each party waives its rights to a jury trial
in any resulting litigation. This Agreement is governed by the laws of
the State of New York and litigation will only be commenced in this
State.
By signing below you agree to the terms of this Agreement. Once signed you agree
that any reproduction made by reliable means (for example, photocopy or
facsimile) is an original unless prohibited by local law.
Signature: /s/ Xxxx Xxxxxxxx
-----------------------------------
Print Name: Xxxx Xxxxxxxx
Company Name: Registry Magic, Inc.
Application Name: Advanced Royalties
Address: 000 X.X. 00xx Xxxxx
Xxxx Xxxxx, XX 00000
Phone: 000 000 0000
Fax: 000 000 0000
Date: 12/27/96
7
