1
EXHIBIT 2.3
TECHNOLOGY LICENSE AGREEMENT
This Technology License Agreement (this "AGREEMENT") is made and
entered into as of November 23, 1999 (the "EFFECTIVE DATE"), by and between HNC
Software Inc., a Delaware corporation having its principal place of business at
0000 Xxxxxxxxxxx Xxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 ("HNC"), and Retek Inc.
("RETEK"), a Delaware corporation having its principal place of business at
Midwest Plaza, 000 Xxxxxxxx Xxxx, 00xx Xxxxx, Xxxxxxxxxxx, XX 00000 and, solely
for purposes of Section 3.3, Retek Information Systems Inc., a Delaware
corporation ("RIS").
RECITALS
A. As of the Effective Date, Retek is a wholly-owned subsidiary of HNC,
and RIS is a wholly-owned subsidiary of HNC.
B. HNC's Board of Directors has determined that it is in the best
interests of HNC and its stockholders to separate the businesses of Retek and
RIS from HNC's other operations. In furtherance of that objective, HNC has also
determined that it is appropriate and desirable for HNC to contribute and
transfer to Retek all of the capital stock of RIS which HNC owns (so that RIS
will become a wholly-owned subsidiary of Retek), and that Retek issue and sell
shares of its common stock in an initial public offering registered under the
Securities Act of 1933, as amended, as contemplated by a Separation Agreement
among HNC, Retek and RIS dated as of November 23, 1999 (the "SEPARATION
AGREEMENT").
C. HNC has previously given RIS access to certain software and know-how
owned by HNC, which RIS has incorporated into certain RIS products, and the
parties desire to enter into this Agreement, pursuant to the Separation
Agreement, in order to confirm the terms and conditions on which Retek will be
licensed, on a non-exclusive basis, to use such HNC software and know-how.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual agreements, provisions and covenants contained in this Agreement, the
parties hereby agree as follows:
ARTICLE 1: CERTAIN DEFINITIONS
For the purposes of this Agreement:
1.1 "DERIVATIVE WORK" mean any additions, modifications, improvements
or enhancements based upon or incorporating the Licensed Technology, such as
modifications, enhancements or any other form in which the Licensed Software may
be recast, transformed or adapted.
2
1.2 "FIELD OF USE" means, and is limited to, the field of software
products and/or software-based services that are both: (a) designed specifically
to provide, automate, manage and/or otherwise facilitate any one or more of the
following functions or applications for Retailers (as defined below) and/or the
members of their Retail Supply Chain (as defined below): the design,
manufacture, assembly, shipment, import, storage, delivery, tracking, marketing,
merchandising, retail store management, inventory planning, inventory management
and/or the pricing of, consumer goods sold at retail; and (b) marketed for
ultimate use solely by Retailers and/or the members of their Retail Supply
Chain. The "Field of Use" shall not include any functions or applications not
expressly described in the preceding sentence, and shall, without limitation,
not include any functions or applications relating to risk management.
1.3 "INTELLECTUAL PROPERTY RIGHTS" means, collectively, all of the
following worldwide intangible legal rights, whether or not filed, perfected,
registered or recorded and whether now or hereafter existing, filed, issued or
acquired: (i) patents, patent applications, and patent rights, including any and
all continuations, divisions, reissues, reexaminations or extensions thereof;
(ii) rights associated with works of authorship, including but not limited to
copyrights, copyright applications and copyright registrations, Moral Rights (as
defined below); (iii) rights relating to the protection of trade secrets,
know-how and other confidential information, including but not limited to rights
in industrial property and all associated information and other confidential or
proprietary information; (iv) industrial design rights; and (v) any rights
analogous to those set forth in the preceding clauses and any other proprietary
rights relating to intangible property; but specifically excluding trademarks,
service marks, logos, trade dress, trade names and service names;
1.4 "LICENSED KNOW-HOW" means the proprietary know-how and trade
secrets related to the Licensed Software which were delivered by HNC to Retek in
tangible form on or before October 15, 1999, and all Intellectual Property
Rights therein.
1.5 "LICENSED SOFTWARE" means the software described in Exhibit A
hereto, in the form in which such software has been delivered by HNC to RIS
prior to the Effective Date, and all Intellectual Property Rights therein.
1.6 "LICENSED TECHNOLOGY" means the Licensed Know-How and the Licensed
Software, collectively.
1.7 "MORAL RIGHTS" means any rights of paternity or integrity, any
right to claim authorship of, to object to or prevent any distortion, mutilation
or modification of, or other derogatory action in relation to, the subject work,
whether or not such would be prejudicial to the author's honor or reputation, to
withdraw from circulation or control the publication or distribution of the
subject work, and any similar right, existing under judicial or statutory law of
any country in the world, or under any treaty, regardless of whether or not such
right is denominated or generally referred to as a "moral" right.
2
3
1.8 "PERMITTED DERIVATIVE WORK" means a software product that is a
Derivative Work that is solely within the Field of Use. The term "Permitted
Derivative Work" does not include any software product that addresses any
different business function or functions than those expressly included within
the Field of Use.
1.9 "RETAILERS" means businesses whose primary business is the sale of
consumer goods at retail.
1.10 "RETAIL SUPPLY CHAIN" means wholesalers, distributors,
manufacturers, suppliers, brokers, bailors and transporters of consumer goods
sold at retail.
ARTICLE 2: NON-EXCLUSIVE LICENSE GRANT
2.1 LICENSE GRANT. Subject to the terms, conditions and limitations of
this Agreement, HNC hereby grants to Retek a non-exclusive, non-transferable,
worldwide, perpetual, royalty-free (except as provided in Article 4 hereof)
license under HNC's Intellectual Property Rights:
(a) to use Licensed Technology internally and to copy Licensed
Software internally, solely (i) for internal purposes, and/or (ii) to create and
test Permitted Derivative Works;
(b) to market, sell, license and distribute Licensed Software
and/or Permitted Derivative Works created by Retek pursuant to the license
rights granted in subparagraph 2.1(a) above, but only as an embedded component
of a software product that is solely within the Field of Use; and
(c) to use Licensed Technology and/or Permitted Derivative
Works created by Retek pursuant to the license rights granted in subparagraph
2.1(a) above, in each case only internally and only in order to provide services
that are solely within the Field of Use to Retailers and members of their Retail
Supply Chains.
2.2 RESTRICTIONS. Notwithstanding anything herein to the contrary,
Retek is not licensed to, and Retek expressly agrees that it shall not (and
shall not permit any third party to):
(a) provide any third party with access to (i) any source code
of any Licensed Software or any Derivative Work of the Licensed Technology,
except that Retek's licensees may be provided with source code solely for their
internal use without any right to further copy or distribute such source code,
which restriction shall be included in all Retek's license agreements with its
licensees, or (ii) to any Licensed Know-How in any form whatsoever;
(b) sublicense or otherwise allow or permit any third party to
create or develop any Derivative Work of any Licensed Technology.
3
4
In addition, Retek acknowledges and agrees that, except to the extent
necessary for Retek to exercise its rights under the licenses granted in this
Agreement, Retek is not being granted, and will not hold, any license or other
rights whatsoever with respect to HNC's proprietary context vector technology.
Retek acknowledges and agrees that the restrictions set forth in this
Section 2 constitute a material inducement and consideration for HNC's
willingness to grant the licenses set forth in Section 2.1. Any failure of Retek
to adhere to these restrictions will be considered a material failure of
consideration and a material breach of this Agreement that will entitle HNC to
terminate this Agreement and all Retek's rights and licenses hereunder upon
written notice to Retek in accordance with the provisions of Section 10.2(b).
2.3 RESERVATION OF RIGHTS. Retek's rights in the Licensed Technology
are hereby limited to those license rights expressly granted to Retek under
Section 2.1 of this Agreement and all rights not expressly granted to Retek
herein are expressly reserved and retained by HNC.
2.4 TRADEMARKS. Nothing herein shall be construed to grant any right or
license to Retek to use any of HNC's trademarks, service marks, logos, trade
dress, trade names, product names, or service names or goodwill associated
therewith.
2.5 NO RIGHT TO UPDATES, ETC. Neither HNC nor any of its affiliates
shall have any obligation whatsoever to provide Retek with any update, upgrade,
new version, new release, modification or enhancement of any Licensed
Technology.
ARTICLE 3: OWNERSHIP
3.1 HNC OWNERSHIP. Retek acknowledges that HNC and its suppliers own
all right, title and interest in and to the Licensed Technology and all
Intellectual Property Rights therein. Retek will not delete or in any manner
alter the copyright, or other proprietary rights notices of HNC appearing on or
in the Licensed Technology as delivered to Retek. Retek will reproduce such
notices on all copies it makes of the Licensed Technology (including Derivative
Works of Licensed Technology), in whole or in part. In addition, Retek will use
its reasonable efforts to protect HNC's Intellectual Property Rights in the
Licensed Technology and will report promptly to HNC any infringement of such
rights of which Retek becomes aware. HNC reserves the right at its discretion to
assert claims against third parties for infringement or misappropriation of its
Intellectual Property Rights in the Licensed Technology and to retain all
compensation, damages and other amount payable to HNC with regard to such
infringement or misappropriation.
3.2 RETEK OWNERSHIP. Subject to the license grants set forth in Section
2.1 and HNC's ownership rights described in Section 3.1, Retek will own all
worldwide right, title and interest in and to the Permitted Derivative Works
created by Retek pursuant to and in accordance with Section 2.1. Retek shall not
have or acquire any right, title or interest whatsoever in or to any of the
Licensed Technology or any Intellectual Property Rights
4
5
therein. Notwithstanding the provisions of this Section, Retek shall not exploit
any Derivative Works created by Retek in any manner other than the manner in
which Retek is expressly licensed to exploit the Licensed Technology or any
Permitted Derivative Works under Section 2.1. Neither Retek nor any of its
affiliates shall be obligated to license or otherwise provide HNC any Derivative
Works of the Licensed Technology for HNC's use.
3.3 DFM. The parties acknowledge and agree that: (a) Retek currently
markets a software product known as the "Demand Forecasting Module" (the "DFM"),
which was originally known as "SkuPlan"; (b) the DFM was originally developed by
HNC and its formerly existing wholly-owned subsidiary Xxxx Xxxxx Associates,
Inc., a Georgia corporation ("NTA") that was merged with and into RIS, with use
of Underlying Technology (as defined below); and (c) the DFM has been further
developed by RIS with the support and assistance of HNC and use of Underlying
Technology (as defined below). The parties further acknowledge and agree that:
(a) RIS owns the DFM, subject to HNC's retained ownership of the Underlying
Technology (as defined below); (b) HNC shall retain ownership of the Underlying
Technology and all Intellectual Property Rights associated therewith; and (c)
Retek is hereby granted by HNC a perpetual, non-exclusive, irrevocable,
worldwide, royalty-free license to (i) use the Underlying Technology to develop
products and services with functions and applications that are solely within the
Field of Use; and (ii) market, sell, license and distribute the Underlying
Technology as an embedded component of the DFM and other products and services
with functions and applications that are solely within the Field of Use. The
term "UNDERLYING TECHNOLOGY" means any software, technology, know-how,
proprietary techniques and other trade secrets that HNC provided to NTA or RIS
at any time prior to October 15, 1999 for the purpose of developing the DFM
and/or any prior version of the DFM. Retek acknowledges and agrees, on behalf of
itself and RIS, that HNC shall be entitled to freely use, develop, license,
sell, lease, market and commercially exploit any Underlying Technology in any
manner.
ARTICLE 4: ROYALTIES
In the event that HNC's grant, or Retek's exercise, of any of the
license rights set forth in this Agreement triggers an obligation on the part of
HNC or any of its affiliates to pay any royalty or other payment to a third
party by virtue of any agreement or fact existing on or before the Effective
Date, then Retek shall be responsible for the payment of such royalties or other
payments in full and shall indemnify HNC against all such royalties and other
payments.
ARTICLE 5: WARRANTY DISCLAIMER
THE LICENSED TECHNOLOGY IS PROVIDED ON AN "AS IS" BASIS WITHOUT
WARRANTY OF ANY KIND AND HNC AND ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR
PURPOSE. HNC DOES NOT WARRANT THAT THE LICENSED TECHNOLOGY IS ERROR-FREE OR THAT
IT WILL MEET RETEK'S REQUIREMENTS OR THAT THE OPERATION OF THE
5
6
LICENSED TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS IN THE
LICENSED TECHNOLOGY OR NONCONFORMITY TO ITS DOCUMENTATION CAN OR WILL BE
CORRECTED.
ARTICLE 6: CONFIDENTIAL INFORMATION
6.1 DEFINITION. "CONFIDENTIAL INFORMATION" means confidential and
proprietary information of HNC and its affiliates ("DISCLOSING PARTY") that is
disclosed to Retek and its affiliates (collectively, "RECEIVING PARTY") which,
in the case of written information, is marked "confidential" or "proprietary"
and which, in the case of information disclosed orally, is identified at the
time of the disclosure as confidential and proprietary and will be summarized
and confirmed in writing as such by the Disclosing Party within thirty (30)
calendar days of the disclosure. Confidential Information shall not include
information that: (i) is now or subsequently becomes generally available to the
public through no fault or breach of the Receiving Party; (ii) is independently
developed by the Receiving Party after the Effective Date without the use of any
Confidential Information of Disclosing Party; or (iii) the Receiving Party
rightfully obtains from a third party who has the right to transfer or disclose
it. Notwithstanding anything herein to the contrary, each party acknowledges
that all of the Licensed Technology (in any form) shall be deemed "Confidential
Information" of HNC for all purposes of this Agreement, whether or not it is so
marked or designated by HNC.
6.2 NONDISCLOSURE. The Receiving Party shall not disclose, publish, or
disseminate the Confidential Information of the Disclosing Party to anyone other
than those of such Receiving Party's employees and consultants with a need to
know, or as may by required by legal process, and the Receiving Party agrees to
use the same degree of care that it takes to hold in confidence its own most
valuable proprietary information, but not less than reasonable care, to prevent
any unauthorized use, disclosure, publication, or dissemination of the
Disclosing Party's Confidential Information. The Receiving Party agrees to
accept and use the Disclosing Party's Confidential Information only for the
purpose of carrying out its authorized activities under this Agreement. In the
event a Receiving Party is required to disclose Disclosing Party's Confidential
Information by an order of a court or governmental agency, then the Receiving
Party shall first give written notice to the Disclosing Party to allow the
Disclosing Party to make a reasonable effort to obtain a protective order or
other confidential treatment for the Confidential Information.
ARTICLE 7: INJUNCTIVE RELIEF
Retek acknowledges that any breach of its obligations under this
Agreement with respect to the Licensed Technology, HNC's Intellectual Property
Rights or HNC's Confidential Information or any failure by Retek to use Licensed
Technology strictly in accordance with the license rights granted to Retek under
Section 2.1 of this Agreement and the additional restrictions contained in
Section 2.2 of this Agreement will cause HNC irreparable injury for which there
are inadequate remedies at law, and therefore, HNC will be entitled to equitable
relief (including but not limited to injunctive relief and the remedy of
6
7
specific performance) in addition to all other rights and remedies provided by
this Agreement or available at law.
ARTICLE 8: INDEMNITY
Retek will be solely responsible for any commercial or legal liability
that may arise as a result of Retek's exercise of any of the license rights
granted by HNC to Retek under this Agreement, and Retek shall defend, indemnify,
and hold HNC harmless from and against any and all suits, claims, proceedings,
judgments, awards, damages, loss, liability, cost and expenses (including
without limitation reasonable attorney's fees and other related costs) that are
incurred or suffered by HNC or any of its affiliates, directors, officers,
employees, or agents to the extent they arise or result, directly or indirectly,
from (i) Retek's exercise of any license or other rights granted to Retek under
this Agreement; or (ii) the conduct of Retek's business directly or through any
affiliate of Retek.
ARTICLE 9: EXCLUSION OF DAMAGES; LIMITATION OF LIABILITY
(a) IN NO EVENT SHALL HNC BE LIABLE TO RETEK OR TO ANY THIRD PARTY FOR
ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT
LIMITATION LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR THE USE, OPERATION OR PERFORMANCE OF ANY OF
THE LICENSED TECHNOLOGY, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON
CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE,
AND WHETHER OR NOT HNC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR
DAMAGE.
(b) IN NO EVENT SHALL HNC'S AGGREGATE CUMULATIVE TOTAL LIABILITY UNDER
THIS AGREEMENT EXCEED $10,000.
(c) THIS SECTION IS A MATERIAL INDUCEMENT AND CONDITION TO HNC FOR
ENTERING INTO THIS AGREEMENT.
ARTICLE 10: TERM AND TERMINATION
10.1 TERM. This Agreement will commence on the Effective Date and will
remain in full force and effect thereafter unless terminated in accordance with
the terms of this Agreement.
10.2 MATERIAL BREACH.
(a) Subject to the provisions of Section 10.2(b), HNC shall have the
right to immediately terminate this Agreement and all licenses granted by HNC
hereunder upon written notice to Retek if Retek breaches any material term or
condition of this Agreement and
7
8
fails to fully cure such breach within thirty (30) days after receiving written
notice of such breach from HNC.
(b) Notwithstanding the foregoing provisions of Section 10.2(a), and in
addition to HNC's rights under Section 10.2(a), HNC shall have the right to
immediately terminate this Agreement and all licenses granted by HNC hereunder
upon written notice to Retek if Retek breaches any of its obligations under
Section 2.1 or Section 2.2 of this Agreement and fails to fully cure such breach
within four (4) business days after receiving written notice of such breach from
HNC.
10.3 INSOLVENCY. Either party shall have the right to terminate this
Agreement immediately upon notice to the other party if the other party: (a)
becomes the subject of a voluntary petition in bankruptcy or any voluntary
proceeding relating to insolvency, receivership, liquidation, or composition for
the benefit of creditors; or (b) becomes the subject of an involuntary petition
in bankruptcy or any involuntary proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of creditors, if such
petition or proceeding is not dismissed within sixty (60) days of filing.
10.4 CERTAIN OTHER EVENTS OF TERMINATION.
(a) Upon the occurrence of (i) any breach or violation by Retek of its
obligations under Section 5.5 (Certain Post-Distribution Transactions) of the
Separation Agreement; or (ii) the occurrence of any event that would trigger an
indemnification obligation of Retek under Section 5.5 of the Separation
Agreement, HNC shall be entitled to immediately terminate this Agreement and all
Retek's rights and licenses hereunder upon giving written notice to Retek.
(b) Upon the occurrence of any Change of Control (as defined below)
this Agreement and all Retek's rights and licenses hereunder shall automatically
terminate unless, prior to the occurrence of such Change of Control, HNC has
consented to such Change of Control in a writing executed by an officer of HNC;
provided that HNC will not unreasonably withhold its consent to the consummation
of a Change of Control. For purposes of the preceding sentence, HNC will be
deemed to have reasonably withheld its consent to a Change of Control if any
person or entity who would acquire direct or indirect control (as defined below)
of Retek pursuant to such Change of Control then conducts a business that is
directly or indirectly competitive with a business then conducted by HNC or any
of its affiliates. As used herein, the term "CHANGE OF CONTROL" means: (i) a
transaction or series of related transactions that results in the sale or other
disposition of all or substantially all of Retek's assets; or (ii) a merger or
consolidation in which Retek is not the surviving corporation or in which, if
Retek is the surviving corporation, the shareholders of Retek immediately prior
to the consummation of such merger or consolidation do not, immediately after
consummation of such merger or consolidation, own stock or other securities of
Retek that possess a majority of the voting power of all Retek's outstanding
stock and other securities and the power to elect a majority of the members of
Retek's board of directors; or (iii) a transaction or series of related
8
9
transactions (which may include without limitation a tender offer for Retek's
stock or the issuance, sale or exchange of stock of Retek) if the shareholders
of Retek immediately prior to the initial such transaction do not, immediately
after consummation of such transaction or any of such related transactions, own
stock or other securities of Retek that possess a majority of the voting power
of all Retek's outstanding stock and other securities and the power to elect a
majority of the members of Retek's board of directors. As used herein, the term
"CONTROL" (including, with correlative meanings, the terms, "CONTROLS"
"CONTROLLING", "CONTROLLED BY" or "UNDER COMMON CONTROL WITH") with respect to a
designated person means the possession, directly or indirectly, of the power to
vote a majority of the securities having voting power for the election of
directors (or other persons acting in similar capacities) of such person or
otherwise to direct or cause the direction of the management and policies of
such person, whether through the ownership of voting securities, by contract or
otherwise.
10.5 CESSATION OF BUSINESS. In the event Retek winds up, dissolves or
otherwise ceases doing business, HNC shall be entitled to terminate this
Agreement immediately upon written notice to Retek.
10.6 EFFECT OF TERMINATION. Upon termination of this Agreement: (a) the
rights and licenses granted to Retek pursuant to this Agreement will
automatically terminate, and (b) Retek shall, within thirty (30) days, ship to
HNC or destroy (including purging from any system or storage media) all items
all Licensed Technology and other Confidential Information in its possession or
control, and an officer of Retek shall certify in writing that Retek as complied
with the provisions of this Section. However, termination of this Agreement will
not terminate customer software licenses validly granted by Retek in accordance
with this Agreement prior to the effective date of termination of this
Agreement.
10.7 NONEXCLUSIVE REMEDY. Termination of this Agreement by either party
will be a nonexclusive remedy for breach and will be without prejudice to any
other right or remedy of such party.
10.8 NO DAMAGES FOR TERMINATION. NEITHER PARTY WILL BE LIABLE TO THE
OTHER FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION INCIDENTAL OR
CONSEQUENTIAL DAMAGES, DAMAGES FOR THE LOSS OF GOODWILL, PROSPECTIVE PROFITS OR
ANTICIPATED INCOME, OR DAMAGES RESULTING FROM ANY EXPENDITURES, INVESTMENTS,
LEASES OR COMMITMENTS MADE BY EITHER PARTY ON ACCOUNT OF THE TERMINATION OR
EXPIRATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS.
10.9 SURVIVAL. The rights and obligations of the parties under the
following Articles of this Agreement shall survive any termination of this
Agreement: Article 3 (Ownership), Article 4 (Royalties), Article 5 (Warranty
Disclaimer) Article 6 (Confidentiality), Article 7 (Injunctive Relief), Article
8 (Indemnity), Article 9 (Exclusion of Damages), Article 10 (Term and
Termination) and Article 11 (General Provisions).
9
10
ARTICLE 11: GENERAL PROVISIONS
11.1 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the internal laws of the State of California, without reference
to its conflict of law rules.
11.2 COMPLIANCE WITH LAWS. Retek agrees to comply in all material
respects with all applicable laws, rules, and regulations in connection with its
activities under this Agreement, including without limitation, any applicable
export controls imposed by the U.S. Export Administration Act of 1978, as
amended (the "ACT") and the regulations promulgated under the Act.
11.3 ASSIGNMENT. Retek may not assign this Agreement or assign its
license rights hereunder in whole or in part without HNC's prior written
consent. Any attempt to assign this Agreement or assign or sublicense Retek's
license rights hereunder without such consent will be void and of no effect. For
purposes of this Agreement, any Change of Control (as defined in Section
10.4(b)) shall be governed by the provisions of Section 10.4(b) and not the
provisions of this Section 11.3. Subject to the terms of this Section 11.3, this
Agreement will bind and inure to the benefit of the parties and their respective
successors and permitted assigns.
11.4 ATTORNEYS' FEES. In the event that any action or proceeding is
brought in connection with this Agreement, the prevailing party shall be
entitled to recover its costs and reasonable attorneys' fees following a final
judgment.
11.5 SEVERABILITY. If for any reason a court of competent jurisdiction
finds any provision of this Agreement invalid or unenforceable, then that
provision of the Agreement will not be voided, but rather will be enforced to
the maximum extent legally permissible and the other provisions of this
Agreement will remain in full force and effect.
11.6 INDEPENDENT CONTRACTOR. The parties to this Agreement are
independent contractors and this Agreement will not establish any relationship
of partnership, joint venture, employment, franchise, or agency between the
parties. Neither party will have the power to bind the other or incur
obligations on the other's behalf without the other's prior written consent.
11.7 NOTICES. All notices required or permitted under this Agreement
will be in writing and delivered by confirmed facsimile transmission, by courier
or overnight delivery service, or by certified mail, and in each instance will
be deemed given upon receipt. All communications to a party will be sent to the
address of the party set forth in the preamble above or to such other address as
may be specified by such party to the other in accordance with this Section.
Either party may change its address for notices under this Agreement by giving
written notice to the other party by the means specified in this Section.
10
11
11.8 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which will be deemed an original, but both of which together will constitute
one and the same instrument.
11.9 ENTIRE AGREEMENT. This Agreement, together with the Separation
Agreement, constitutes the complete and exclusive agreement between the parties
with respect to the subject matter hereof, superseding and replacing any and all
prior and contemporaneous agreements, communications, and understandings (both
written and oral) regarding such subject matter.
11.10 MODIFICATION. No modification to this Agreement, nor any waiver
of any rights, shall be effective unless consented to in writing and the waiver
of any breach or default shall not constitute a waiver of any other right or of
any subsequent breach or default.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the Effective Date by their duly authorized representatives.
HNC SOFTWARE INC. RETEK INC.
By: /s/ X.X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------- -----------------------------------
Name: X.X. Xxxxxx Name: Xxxxxxx X. Xxxxxxx
---------------------------- --------------------------------
Title: Title:
C.F.O VP, Finance & Administration
---------------------------- --------------------------------
SOLELY FOR PURPOSES OF SECTION 3.3
RETEK INFORMATION SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------------
Title: VP, Finance & Administration
--------------------------------
[SIGNATURE PAGE TO TECHNOLOGY LICENSE AGREEMENT]
11
12
EXHIBIT A
TO
TECHNOLOGY LICENSE AGREEMENT BETWEEN HNC SOFTWARE INC. AND RETEK INC.
LICENSED SOFTWARE
The Licensed Software consists of the following items of software:
1) SELECTPROFILE
The SelectProfile software delivered to Retek on or about November
1998, which embodies HNC context vector technology and which includes
modules for:
(a) context vector learning: representing transactional data with high
dimensional vectors ("CVs"), and learning the relationships between
items of transactional data.
(b) context vector profiling of transaction streams: representing
consumers, merchants, and products, or other entities using CVs, based
on their respective aggregate transactions.
(c) context vector comparison: comparing CV's with each other to
determine similarity, including but not limited to determining
similarities between consumers, merchants, and/or products.
(d) context vector clustering: grouping CV's clusters, and creating
summary vectors to represent the clusters, including but not limited to
the creation of merchant clusters, consumer clusters, and/or product
clusters.
(e) fast vector storage and retrieval: efficient storage of CVs and
high speed retrieval of CVs.
2) MARKDOWN MANAGEMENT
The Markdown Management software delivered to Retek on or about
February 15th, 1999, which embodies dynamic programming technology for
optimizing retail pricing to maximize profit.
3) MULTI-ECHELON INVENTORY MANAGEMENT
The Multi-Echelon Inventory Management software delivered to Retek on
or about March 15th, 1999 which embodies re-enforcement learning
technology to optimize retail inventory across multiple stores and
multiple distribution centers.
12
