Exhibit 10.9
Tivoli
Marking Client/Server(TM)
Tivoli Systems Inc.
Loan Agreement
Tivoli Systems Inc. ("Tivoli"), a Texas corporation, with its principal place of
business address at 0000 Xxxxxxx xx Xxxxx Xxxxxxx, Xxxxx, Xxxxxxxxx Xxxxx Xxx,
Xxxxx 000, Xxxxxx, XX 00000, desires to loan to Pencom Software ("Pencom") with
its business location at 0000 Xxxxxxx xx Xxxxx Xxxxxxx Xxxxx Xxxxxx Xxxxx 00000
and Pencom desires to receive, use and protect, certain loaned hardware
products, which are the property of Tivoli Systems Inc., in accordance with the
terms and conditions contained herein.
1. Effective Date: November 15, 1995.
2. Loan Expiration Date: The Loan Term and this Agreement Term shall expire on
November 15, 1996.
3. Use of Products: Tivoli grants to Pencom the right to use the Products for
the purpose of porting Tivoli Software. Title to and ownership of the
Products and all copies thereof shall remain the property of Tivoli Systems
Inc. Pencom shall not mortgage, pledge or encumber the Products in any
way. Pencom shall keep the products in good working order during the term
of this Agreement.
All installation, deinstallation, maintenance and repairs of the Products
must be performed by Pencom Software, Inc.
4. Location. Pencom shall keep the Products at the address set forth above
and shall not move the Products without the prior written consent of
Tivoli.
5. Loss or Damage- Pencom shall immediately notify Tivoli for any loss or
damage to the Products. Pencom shall be responsible for any loss or damage
to the Products and shall pay Tivoli the value of the Products damaged or
destroyed while in the custody of Pencom.
7. Termination: Tivoli may terminate this Agreement prior to the Loan
Expiration Date for any reason upon ten (10) days written notice or
immediately upon notice of any breach by Pencom of the provisions of this
Agreement. Within fifteen days (15) following expiration or termination of
this Agreement, Pencom shall return to Tivoli all of the Products in
tangible form in its possession. Any additional copies Software held by
Pencom which are not returned to Tivoli shall be destroyed by Pencom within
the fifteen day period and such destruction will be certified to Tivoli.
8. Warranty and Liability Disclaimer: The Products disclosed under this
Agreement are delivered "as is" and Tivoli makes no warranty of any kind
with respect to the accuracy of such Products or its suitability for any
particular use or with respect to freedom from bugs or uninterrupted use.
TIVOLI DISCLAIMS ALL WARRANTIES RELATING TO THE PRODUCT, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT
OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. PENCOM ACKNOWLEDGES AND AGREES THAT TIVOLI SHALL NOT BE LIABLE
UNDER THIS AGREEMENT OR OTHERWISE AS A RESULT OF PENCOM'S USE OF ANY
SOFTWARE OR PRODUCTS PROVIDED BY TIVOLI, WHETHER AS AS RESULT OF
CONTRACTUAL, NEGLIGENCE, STRICT LIABILITY OR FOR ANY REASON OR CAUSE
WHATSOEVER, FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENT
DAMAGES.
10. Non-assignability. The rights and obligations arising under this Agreement
may not be assigned by Pencom without the express written consent of the
other party and any purported assignment without such written consent shall
be void.
11. Agreement Execution; Controlling Law; and Severability. This Agreement
shall become effective only upon its execution by both Tivoli and Pencom
and it shall be governed by and construed in accordance with the laws of
the State of Texas, U.S.A. In any action to enforce this Agreement the
prevailing party will be entitled to cost and attorneys fees. In the event
that any of the provision of this Agreement shall be held unenforceable,
such provision shall be limited or eliminated to the minimum extent
necessary so that this Agreement shall otherwise remain in full force and
effect and enforceable.
12. Entire Agreement. This Agreement and Exhibit A attached hereto constitutes
the entire agreement between the parties. All additions and modifications
to this Agreement must be made in writing referencing this Agreement and
must be signed by both parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
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Tivoli Systems Inc. ("Tivoli") Pencom Systems ("Pencom")
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxx Boruvka
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Authorized Signature Authorized Signature
Xxxxxx X. Xxxxxxxx Xxxxx Boruvka
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Name Name
Mgr. Development Services Software Eng.
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Title Title
11/16/95 11/18/95
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Date Date
p. 2
LOAN AGREEMENT
EXHIBIT A
Quantity System Description
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1 4GB external SCSI disk in enclosure with cable and terminator.
Manufacture ZZYZX Worstation Peripherals, serial number 95110062.
P. 3