TERMS OF AGREEMENT
AGREEMENT made as of the _______ day of________________________, 19______ by
and between _____TRANSITION ANALYSIS COMPONENT TECHNOLOGY, INC. ("TACTech") and
( "Subscriber").
1. Service and Equipment.
A. The "Service" provided in connection with this Agreement consists of a
microcircuit management system which includes (i) one or more modules of a
search system for accessing a proprietary integrated database (the "TACTech
Database"), as set forth on Schedule A annexed hereto and by its terms made a
part hereof ("Schedule A"), (ii) the software relating to all such modules;
(iii) all documentation or user manuals relating to the TACTech Database
(collectively the "Documentation"), and (iv) an authorized copy of a particular
communications software program, in each case as are provided by TACTech to
Subscriber under this Agreement.
B. The "Equipment" provided in connection with this Agreement, other than
the communication software which is being provided to all Subscribers, will only
be provided by TACTech to a Subscriber which has all three modules described on
Schedule A hereto. Such Equipment, if any, will consist of (i) an IBM PS/2, (ii)
a 2400 band modem, and (iii) a Printer, all as more particularly described in
said Schedule A.
2. License. Subject to the terms of this Agreement, TACTech grants
Subscriber a non-exclusive, non-transferable limited site license (the
"License") to access data (the "Data") using the Service and Equipment, if any.
Except as otherwise provided herein, Subscriber will have access to the Database
through Subscriber's own computer equipment located in Subscriber's office at
such times as the Database is generally available for such access. The License
includes the right to generate printouts of specially formatted portions of the
Database, provided, however, that other than as required for Subscriber to
effectively utilize the Database, such printouts shall not be reproduced,
transferred, transmitted or distributed in any form or by any means to any
unaffiliated third parties by Subscriber without the prior written consent of
TACTech.
3. Limitation of License. TACTech represents that the Service and the
Database are the sole property of TACTech and are protected by appropriate
copyrights. Data may be stored in memory, manipulated, analyzed, reformatted,
printed and displayed for Subscriber use only. Subscriber may not redistribute,
reproduce, transfer or transmit (except to employees of Subscriber) any of the
specially formatted portions of the Data or the Database in any form or by any
means to any third party without TACTech's prior written consent. Subscriber may
use the Service, modules and Database only for its own internal purposes and
shall not use the Service and/or its individual components as a component of or
a basis for any materials, reports, database or the like prepared for commercial
sale, access or distribution outside Subscriber's organization. Subscriber is
not permitted to duplicate components of the service, or portions thereof, in
any way except that Subscriber may make archival copies of Subscriber's
individual search results generated by the input into the TACTech Database of
Subscriber's particular data for backup or support purposes only, provided that
such archival copies shall contain the same copyright notice and proprietary
markings as appear on the original software. Specific restrictions concerning
Subscriber's use of the Service, or portions thereof, include the following: (1)
Subscriber is permitted under this Agreement to use the Equipment, if any,
provided, however, that Subscriber agrees to take reasonable care in the use and
maintenance of such Equipment; (2) Subscriber may not reverse engineer,
decompile, modify in any way or create derivative works based on the Service, or
any portion thereof; and (3) portions of the TACTech Database limited to
individual search results may be copied onto electronic/magnetic media (or other
machine-readable form) solely for temporary use in conjunction with Subscriber's
editing or reformatting of data for purpose of making a single printout
(human-readable copy) thereof.
4. Rights in the Data. Except for the License granted herein, all right,
title and interest in the Database and the specially formatted Data in all
languages, formats and media throughout the world, are and shall continue to be,
the exclusive property of TACTech. Subscriber shall acquire no ownership rights
in or title to the Service, the Equipment (except as otherwise provided herein),
the TACTech Database, or any portions thereof. Subscriber's use of the Service
is subject to the disclaimers and restrictions on use contained herein.
5. Term of Agreement. This Agreement and the license granted hereunder, upon
acceptance by TACTech, shall remain in force for a period of one (1) year from
the date of this Agreement unless terminated by either party upon thirty (30)
days prior written notice to the other party. In addition to any rights or
remedies available to it, TACTech may terminate this Agreement and all licenses
hereunder if Subscriber commits a material breach of any provision of this
Agreement. This Agreement, may, by mutual written agreement, be renewed for
successive one (1) year periods, prior to the expiration of the then current
term and subject to the then current prices, provided, however, that
Subscriber's first renewal of this Agreement shall be at the prices in effect on
the date of this Agreement, except that new or additional services then being
provided to Subscriber for a separate or additional fee shall be added to the
prices otherwise prevailing. Renewals shall also be subject to termination as
provided herein. If TACTech introduces new or additional services or
significantly modifies existing modules or services, TACTech may charge a
separate or additional fee therefor, provided TACTech notifies Subscriber of
such separate or additional fee. Such notification will be deemed to modify
Schedule A hereto; provided, however, Subscriber may decline to subscribe to
such new or additional services in which case Subscriber shall not be obligated
to pay any separate or additional fees thereon. If TACTech terminates this
Agreement or Subscriber's access to the Database due to no fault of Subscriber,
TACTech shall refund to Subscriber a pro rata portion of the Subscription fees.
6. Responsibilities of Subscriber. The terms of this Agreement are
applicable to all Licenses, user identification numbers and passwords issued
under this Agreement. The documentation and any other software materials
relating to the Service, including all portions thereof, except where expressly
stated otherwise, contain proprietary information and are protected by
copyright, trade secret and other laws respecting proprietary rights. Subscriber
shall take all necessary action to restrict, control and limit and shall be
responsible for all access to and use of the Database and Data contained therein
by Subscriber's personnel and/or by the use of Subscriber's passwords, whether
or not Subscriber has knowledge of or authorizes such access and use. In the
event of the loss or theft of a password, it is the responsibility of Subscriber
to notify TACTech in writing, and Subscriber shall be relieved of liability for
charges incurred on such password after TACTech's receipt of notice and an
opportunity during regular business hours to terminate the stolen password.
7. Charges. The charges and costs payable by Subscriber shall be as stated
in Schedule A hereto. Billing and payment shall also be provided in said
Schedule A.
8. Passwords. Subscriber will receive one or more passwords which can be
used to access and use the Database. Passwords may be restricted from accessing
certain data on the Database.
9. Copyright. Unless each printout page or other form of retrieved specially
formatted Data contains a TACTech copyright notice, Subscriber shall insure that
the following TACTech copyright notice (including the then current calendar
year) appears thereon, unless otherwise instructed: COPR. (c) ACTECH [YEAR].
10. Training. TACTech will provide Subscriber with such training at
locations and times designated by TACTech, and such user manuals, as it
customarily provides to other Subscribers who are granted access to the Database
and as are set forth on Schedule A hereto. Costs incurred by Subscriber for
travel, lodging, meals and related costs associated with such training will be
borne by Subscriber.
11. Disclaimer of Warranty. The Service is provided by TACTech to Subscriber
for use as a guide only. Accordingly:
A. TACTech warrants (a) that it has the right to license the use of the
Service pursuant to this Agreement; and (b) that, for the duration of this
Agreement, the Service and all Equipment supplied by TACTech and used in
accordance with the accompanying Documentation will function in accordance with
TACTech's published specifications. Except for the foregoing warranty, TACTech
MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OF FITNESS FOR A
PARTICULAR PURPOSE. PART OF THE DATA IN THE DATABASE ORIGINATES FROM THIRD
PARTIES; TACTech DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS OF
CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE, WITH RESPECT TO
THE USE OR THE RESULTS OF THE USE OF THAT DATA OR ANY OTHER ELEMENT IN THE
SERVICE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SERVICE IS
ASSUMED BY SUBSCRIBER.
B. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TACTech, ITS AGENTS
OR ITS EMPLOYEES SHALL CREATE A WARRANTY AND SUBSCRIBER MAY NOT RELY ON ANY SUCH
INFORMATION OR ADVICE.
C. TACTech SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL
OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS
INFORMATION AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE
OR THE EQUIPMENT, WHETHER OR NOT FORESEEABLE, WHETHER OR NOT CAUSED BY THE
NEGLIGENCE OF TACTech AND/OR ITS SUPPLIERS, AND WHETHER OR NOT EXCLUSIVE
REMEDIES ARE DEEMED TO HAVE FAILED, EVEN IF TACTech HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
D. THE LIABILITY OF TACTech UNDER THIS AGREEMENT SHALL IN NO EVENT
EXCEED THE FEES PAID BY SUBSCRIBER HEREUNDER.
12. Indemnification.
(a) Except as otherwise provided in this Section 12, Subscriber
assumes sole responsibility for all use by it of the Database and the Data
therein and hereby indemnifies and holds TACTech, its affiliates and agents,
harmless against any liability or claim of any person arising from such use of
the Database or the Data derived therefrom.
(b) It is agreed that TACTech shall defend at its expense any suit
against Subscriber based on a claim that any software access to the Data and the
Database purchased by Subscriber infringes any United States Letters of Patent
or Copyright or violates any trade secret or other proprietary right of any
third party, except that TACTech shall have no liability with respect to those
claims under Letters Patent covering combinations of such software access with
software not furnished by TACTech. TACTech shall pay costs and damages finally
awarded in any such suit provided that TACTech is notified in writing of the
suit and give authority, information and assistance at TACTech's expense for the
defense of same, up to, but not in excess of the amount of all fees paid in the
prior twelve months by Subscriber to TACTech.
13. Force Majeure. Neither TACTech, its affiliates or agents shall be
liable or deemed to be in default for delays, failure in performance or loss
resulting directly or indirectly from any cause or circumstance beyond its
reasonable control including, but not limited to acts of God, war, riot,
embargoes, acts of civil or military authority, fire, flood, accidents, strikes
or labor shortages, shortages of transportation facilities or software programs
not included in the service, delays or interruptions due to electronic or
mechanical equipment failures, to telephone or other interconnect problems, to
defects or to the elements, or other causes or conditions over which TACTech,
its affiliates and its agents have no direct control.
14. Return of Material and Equipment. Upon termination of this Agreement
for any reason whatsoever, subscriber must return at the expense of TACTech, by
a traceable means of transit selected by TACTech forthwith to TACTech all
Equipment, if any, manuals, user guides and similar materials, provided by
TACTech in connection with the use of the Database.
15. Limitation of Claims. No claims, regardless of form, which in any
way arises out of this Agreement or the use of, or inability to use, the
Database or the Data, may be made, nor action based upon such claim brought, by
either party, more than one year after the cause of action has accrued.
16. Effect of Agreement. This Agreement (which shall include all addenda
and schedules hereto) embodies the entire understanding between the parties with
respect to the subject matter hereof and supersedes any and all prior
understandings and agreements, oral or written, relating hereto.
17. Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California
18. No Assignment. Neither this Agreement nor any part or portion hereof
shall be assigned, sublicensed or otherwise transferred by either party without
the other party's prior written consent.
19. General Provisions. Should any provision of this Agreement be held
to be void, invalid, unenforceable or illegal by a court, the validity and
enforceability of the other provisions shall not be affected thereby. Failure of
either party to enforce any provision of this Agreement shall not constitute or
be construed as a waiver of such provision or of the right to enforce such
provision. This Agreement may be executed in counterparts which taken together
shall constitute one Agreement, and either party may execute this Agreement by
signing any such counterpart.
20. Notices; Consent to Service. Any notice, request, election, payment
or other communication required or permitted to be given by any party under any
provision of this Agreement shall be sufficient if in writing and personally
delivered or mailed first class, postage prepaid, by registered or certified
mail, return receipt requested, to the following address, or to such other
address as any party shall designate upon written notice to the other party
pursuant to this Section 20.
IF TO TACTech: IF TO SUBSCRIBER:
Transition Analysis Component
Technology, Inc. _________________________
00000 Xxxx Xxxxx Xxxxxxx _________________________
Xxxxx Xxxxx, XX 00000 _________________________
21. Conflict. In the event of any conflict or inconsistency between the
provisions of this Agreement and any other agreement or document between TACTech
and Subscriber, the provisions of this Agreement shall prevail.
TRANSITION ANALYSIS COMPONENT SUBSCRIBER:
TECHNOLOGY, INC.
By:________________________________ Firm Name: ______________________________
Title: ____________________________ By: _____________________________________
Date: ____________________________ Title: __________________________________
Date: ___________________________________
RIDER TO AGREEMENT (THE "AGREEMENT") DATED
MAY 19, 1993 BETWEEN TRANSITION ANALYSIS
OF COMPONENT TECHNOLOGY, INC. ("TACTech") AND
ARROW ELECTRONICS INC. ("SUBSCRIBER")
1. All capitalized terms used in this Rider but not defined herein shall
have the meanings ascribed to them in the Agreement. In the event of
any inconsistency between the terms of this Rider and the terms of the
Agreement, the terms of this Rider shall prevail.
2. The first sentence of Section "2. License" shall be deleted and the
following sentences shall be substituted in its place:
"Subject to the terms of this Agreement, TACTech grants
Subscriber a non-transferable limited use license (the
"License") to access data (the "Data") using the Service and
Equipment, if any. TACTech agrees that during the term of this
Agreement TACTech will not grant to any other party a license,
or otherwise authorize any other party, to have access to the
Data using the Service if such other party is in the business
of distributing electronic component parts, except that the
foregoing shall not apply to Rochester Electronics for so long
as it remains a distributor of obsolete or DMS products for
the D.O.D. and its contractors. It is expressly understood and
agreed that a party which is in the business of manufacturing
electronic component parts and selling those parts which it
manufactures shall not be deemed a party which is in the
business of distributing electronic component parts."
3. The following sentence shall be added as the last sentence of Section
"3. Limitation of License":
"The License does not authorize Subscriber to have more than
three simultaneous users of the Service and only authorizes
use of the Service by employees of Subscriber's
____________________ Division."
4. Section "5. Term of Agreement" shall be restated in its entirety as
follows:
"This Agreement and the license granted hereunder, upon
acceptance by TACTech, shall remain in force for a period of
three (3) years from the date of this Agreement, subject
however to earlier termination upon written notice of election
to so terminate given by either party if (i) the other party
commits a material breach of this Agreement and fails to cure
same within 15 days of written notice thereof from the
non-defaulting party, or (ii) the other party becomes
insolvent or bankrupt or admits in writing its inability to
pay its debts as they mature, or makes an assignment for the
benefit of creditors, or ceases to function as a going concern
or to conduct its
operations in the normal course of business. This Agreement,
may, by mutual written agreement, be renewed for successive
one (1) year periods, prior to the expiration of the then
current term and subject to the then current prices. Renewals
shall also be subject to termination as provided herein. If
TACTech introduces new or additional modules or services or
significantly modifies existing modules or services, TACTech
may charge a separate or additional fee therefor, provided
TACTech notifies Subscriber of such separate or additional
fee. Such notification will be deemed to modify Schedule A
hereto; provided however, Subscriber may decline to subscribe
to such new or additional services in which case Subscriber
shall not be obligated to pay any separate or additional fees
thereon and TACTech shall be free to grant other parties the
right to subscribe to such new or additional service
regardless of the business in which such party is engaged."
IN WITNESS WHEREOF, the undersigned have executed this Rider to
Agreement on the 19th day of May, 1993.
TRANSITION ANALYSIS
COMPONENT TECHNOLOGY, INC. SUBSCRIBER
By: /s/ Xxxxxx X. Xxxxx Firm Name: Arrow Electronics, Inc.
---------------------- --------------------------
Title: By: /s/ Xxxxxx X. Xxxxxxx
------------------- ---------------------------------
Date: May 19, 1993 Title: Senior Vice President
---------------------- ------------------------------
Date: May 19, 1993
-------------------------------
SCHEDULE A
1. Fee Structure
The annual fee for a subscription to the A.I.M. and M.A.X. Modules shall be
$72,000. Such price includes umlimited usage via a local 1-714 area
telephone number. The following features apply to the A.I.M. and M.A.X.
Modules:
A.I.M. MODULE (includes LOOK-UP)
TRAINING: Mandatory for two days at TACTech facility for
any two (2) employees of Subscriber. $400 for
each additional person. (Does not include
transportation or lodging).
SUPPORT: Manual
TACTech will input up to 500 parts into this
module
Tutorial Disk
Subscriber research support
Technical Support
Three-month system review
EQUIPMENT: Terminal Emulation Software
M.A.X. MODULES (includes LOOK-UP)
TRAINING: OPTIONAL, one day only.
SUPPORT: Manual
Technical Support
Tutorial Disk
Three-month system review
Subscriber research support
EQUIPMENT: Terminal Emulation Software
2. Basic Subscription
The License includes new Subscriber material, manuals, a system password,
and an authorized copy of a terminal emulation software program. Each
Subscriber will receive a user identification number.
3. Availability of Database
Subject to the provisions of the next sentence, TACTech will make a Database
available to Subscriber seven days per week, 24 hours per day. Service will
not be provided on any day which is a legal holiday under federal or state
law. Availability of service is subject to change by TACTech with prior
written notice.
4. Billing and Payment Procedure
Invoices in the amount of $6,000 each, will be issued as of the first day of
each month and payment is due on or before the tenth (10th) day of the
month. In the event that Subscriber does not make payment within fifteen
(15) days of the due date, TACTech may terminate this Agreement and/or may
cease to provide the Service to Subscriber until such time as Subscriber
pays to TACTech the full amount due to TACTech, and/or may exercise any other
remedies provided by law; in additional, TACTech may charge Subscriber up to
the maximum legal interest on any unpaid balance.
5. Passwords
Each Password issued to Subscriber will access the Service and Database
existing on the date the license is issued to Subscriber.
