EXHIBIT 10.13
SOFTWARE LICENSE AGREEMENT
--------------------------
(Unocal Agreement No. 09580)
SOFTWARE LICENSE AGREEMENT ("Agreement"), entered into by and
between Union Oil Company of California doing business as Unocal with offices at
000 Xxxxx Xxxxxxxx, Xxxx, Xxxxxxxxxx 00000 ("LICENSOR") and National
Auto/Truckstops, Inc., with offices at 0000 X. Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx
00000 ("LICENSEE").
WHEREAS, LICENSOR and LICENSEE have entered into an Asset Purchase
Agreement, dated as of November 23, 1992 (the "Asset Purchase Agreement"); and
WHEREAS, each of LICENSOR and LICENSEE is obligated under the Asset
Purchase Agreement to enter into this Agreement; and
WHEREAS, LICENSOR has developed and/or had developed for it a
proprietary software program called Access 76 software comprised of source,
object and executable code as well as related procedural code ("Licensed
Programs"); and
WHEREAS, LICENSOR has developed the Licensed Programs for LICENSOR's
own internal use and LICENSOR has not released the Licensed Programs for general
distribution; and
WHEREAS, LICENSEE desires to acquire the Licensed Programs for its
own internal use; and
WHEREAS, in order to enhance LICENSOR's relationship with LICENSEE,
LICENSOR has agreed to provide a no-charge license to LICENSEE to use the
Licensed Programs in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants and promises in this Agreement, LICENSOR and LICENSEE hereby agree as
follows:
ARTICLE I
PURPOSE
1.1 Each capitalized term used herein but not otherwise defined
shall have the respective meaning assigned to it in the Asset Purchase
Agreement.
1.2 LICENSEE voluntarily requests that LICENSOR license the use
of the Licensed Programs to LICENSEE for LICENSEE to use the Licensed Programs
at LICENSEE'S sole risk. LICENSEE acknowledges that the Licensed Programs are
not
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released or intended by LICENSOR for general distribution and may contain known
and unknown errors.
1.3 LICENSOR shall license to LICENSEE, at no charge, the Licensed
Programs in source code form with some selected documentation sufficient for
LICENSEE to make use of the Licensed Programs.
1.4 LICENSOR shall not provide maintenance, upgrade, and enhancement
support or services for the Licensed Programs. LICENSOR is not in the trade or
business of developing software such as the Licensed Programs and LICENSOR shall
have no obligation to provide any support for the Licensed Programs regardless
of whether or not it is released by LICENSOR as a commercial product for general
distribution.
ARTICLE II
GRANT OF LICENSE
2.1 LICENSOR hereby grants to LICENSEE, and LICENSEE hereby accepts
a nonexclusive, royalty-free license to install and use the Licensed Programs
solely for LICENSEE's own internal use. LICENSOR hereby grants to LICENSEE the
right to sublicense only the Access 76 portion of the Licensed Programs in
object code form (not source code) to Operators, Resellers, franchisees or other
Persons whether or not associated with the A/TS Network. LICENSOR agrees that it
will not sublicense the source code to other Persons. Both parties agree that
each will not grant any license or sublicense to the Access 76 portion for the
Licensed Programs to any third party for use in a manner and marketing area
likely to be in competition with the operations of the other party and/or its
Affiliates.
2.2 LICENSEE may make a reasonable number of copies of the Licensed
Programs solely for backup purposes and for purposes of sublicensing in
accordance with Paragraph 2.1. LICENSEE shall place LICENSOR's copyright and/or
proprietary rights notices on any such backup copies of the Licensed Program(s)
which LICENSEE makes.
ARTICLE III
LICENSEE'S OBLIGATIONS
3.1 LICENSEE shall treat the Licensed Programs as the confidential
trade secret of LICENSOR, and LICENSEE shall not disclose or make available the
Licensed Programs in any form whatsoever to any third party, except for those
employees, agents or sublicensees (as permitted under Paragraph 2.1) of LICENSEE
that have agreed to use and keep confidential the Licensed Program(s) as
provided in this
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Agreement. LICENSEE shall not use or sublicense the Licensed Programs beyond
the scope of the license granted herein.
3.2 LICENSEE agrees that unless it has LICENSOR's prior written
permission, it will not associate the Licensed Programs or any results obtained
from the use thereof with LICENSOR or LICENSEE's operation.
3.3 LICENSEE acknowledges that in order to be executed, the Licensed
Program requires certain third party software, described more fully in Schedule
I. LICENSEE further acknowledges that LICENSOR does not have the right to grant
sub-licenses to such software. LICENSEE agrees that prior to use of the Licensed
Program in any manner, LICENSEE will obtain necessary Licenses from the vendors
of such third-party software.
ARTICLE IV
TERM
4.1 This Agreement is effective on the first date written in the
signature section or on the date LICENSEE actually receives the Licensed
Programs, whichever is earlier. This Agreement and the license shall expire
ninety-nine (99) years after the effective date.
4.2 LICENSOR may terminate this Agreement at any time by notice to
LICENSEE if LICENSEE breaches any material term or condition of this Agreement
and fails to cure any such breach within thirty (30) days of LICENSEE's receipt
of notice of breach. On any termination, LICENSEE shall, at LICENSOR's
direction, return or destroy all copies of the Licensed Programs and cease all
use of the Licensed Programs or any derivative work.
ARTICLE V
CONSIDERATION
No monetary condition is given for this license. Neither party shall
charge the other any fees or expenses relating to this Agreement. Each party
shall bear its own expenses resulting from this Agreement, if any.
ARTICLE VI
EXCLUSION OF WARRANTIES; LIMITATION OF LIABILITY
6.1 LICENSOR MAKES NO REPRESENTATION, GUARANTEE, OR WARRANTY
WHATSOEVER WITH RESPECT TO THE LICENSED PROGRAMS, WHETHER EXPRESS OR IMPLIED,
WHETHER ARISING BY
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CUSTOM, TRADE USAGE, COURSE OF PERFORMANCE OR OTHERWISE, AND WHETHER REGARDING
ITS ACCURACY, OR ITS SUITABILITY FOR LICENSEE'S PURPOSES OF OTHERWISE. LICENSOR
SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS
FOR A PARTICULAR PURPOSE. LICENSEE ACKNOWLEDGES THAT THE LICENSED PROGRAMS WERE
DEVELOPED BY LICENSOR FOR LICENSOR'S OWN USE, AND LICENSEE AGREES TO ACCEPT EACH
OF THE LICENSED PROGRAMS "AS IS."
6.2 IN NO EVENT SHALL LICENSOR BE LIABLE TO ANY PARTY FOR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND
RESULTING FROM LOSS OF USE, DATA, OR PROFITS, OR ARISING OUT OF THIS AGREEMENT
OR LICENSEE'S USE OF ANY OF THE LICENSED PROGRAMS, IRRESPECTIVE OF WHETHER
LICENSOR MAY HAVE BEEN NOTIFIED THAT SUCH DAMAGES WERE FORESEEABLE OR LIKELY,
AND IRRESPECTIVE OF THE CAUSE OF ACTION OR THEORY UPON WHICH LIABILITY FOR SUCH
DAMAGES MIGHT BE ALLEGED, INCLUDING BUT NOT LIMITED TO INFRINGEMENT, NEGLIGENCE
(ACTIVE OR PASSIVE) OR OTHER TORT, BREACH OF CONTRACT, BREACH OF DUTY OR
WARRANTY (EXPRESS OR IMPLIED), STRICT LIABILITY, OR OTHERWISE WHETHER AT LAW, IN
EQUITY, OR OTHERWISE.
6.3 Each party agrees to unconditionally release, defend, indemnify
and hold the other party (indemnitee) harmless from and against any and all
claims, actions, liabilities, expenses, or damages (including but not limited to
attorney's fees and litigation expenses incurred by indemnitee to enforce this
Agreement or to prevent its breach, or both), hereinafter "claims," arising out
of the use of the Licensed Programs by the indemnifying party and/or its
licensee(s). LICENSEE AND LICENSOR STIPULATE THAT THIS AGREEMENT IS NOT AN
AGREEMENT AFFECTING THE PUBLIC, NOR IS IT A "CONSTRUCTION CONTRACT" (AS DEFINED
BY CALIFORNIA CIVIL CODE SECTION 2783), OR AN AGREEMENT CONTAINED IN, COLLATERAL
TO, OR AFFECTING A CONSTRUCTION CONTRACT.
6.4 The indemnity provided herein is intended by the parties to be
effective to the maximum extent permitted by the applicable law and should be so
construed and interpreted by any reviewing court or arbitrator.
ARTICLE VII
GENERAL
7.1 The obligations of the parties in Article 3 and Article 6 shall
survive any expiration or termination of this Agreement.
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7.2 This Agreement, together with the Asset Purchase Agreement,
states the entire agreement between the parties concerning its subject matter
and supersedes all related prior oral and written negotiations and
understandings. No representation, condition, understanding, statement of
intention or agreement of any kind, oral or written, shall bind either party
unless set forth or specifically incorporated in this Agreement.
7.3 No waiver, alteration, modification or cancellation of any of
the provisions of this Agreement shall be binding unless made in writing and
signed by the parties. The waiver by either party of any breach of this
Agreement shall not be a waiver of any subsequent breach, nor shall it be a
waiver of the underlying obligation.
7.4 The license to use the Licensed Programs is personal to LICENSEE
and LICENSEE may not transfer, sublicense or disclose the Licensed Programs to
any other party or assign this Agreement, except as provided expressly in this
Agreement, without the express written permission of LICENSOR. Notwithstanding
the foregoing, LICENSEE may assign its rights under this Agreement to any of its
lenders upon the sale (whether by sale of stock, merger, sale of assets or
otherwise) of all or substantially all of the assets of the business conducted
by LICENSEE. Any such assignment shall not relieve LICENSEE of its obligations
under Articles 3 and 6.
7.5 If any provision in this Agreement is, for any reason, held
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision contained in this
Agreement.
7.6 All notices, requests, demands, claims and other communications
hereunder shall be in writing. Any notice, request, demand, claim or other
communication hereunder shall be deemed duly given (i) if personally delivered,
when so delivered, (ii) if mailed, two Business Days after having been sent by
registered or certified mail, return receipt requested, postage prepaid and
addressed to the intended recipient as set forth below, (iii) if given by telex
or telecopier, once such notice or other communication is transmitted to the
telex or telecopier number specified below and the appropriate answer back or
telephonic confirmation is received, provided that such notice or other
communication is promptly thereafter mailed in accordance with the provisions of
clause (ii) above or (iv) if sent through a reputable overnight delivery service
in circumstances to which such service guarantees next day delivery, the day
following being so sent:
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If to UNOCAL:
Union Oil Company of California
X.X. Xxx 00
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxx, Xxxxxxxxxx 00000
Attn: Chief License Counsel
(for legal notices)
Telecopy: (000) 000-0000
If to LICENSEE:
National Auto/Truckstops, Inc.
c/o Unocal Products and Chemicals Division
0000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
Copy to: The Clipper Group, L.P.
Park Avenue Plaza
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxxxx
Telecopier: (000) 000-0000
Copy to: Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. Xxxx, Esq.
Telecopier: (000) 000-0000
Either party may give notice, request, demand, claim or other communication
hereunder using any other means (including ordinary mail or electronic mail),
but no such notice, request, demand, claim or other communication shall be
deemed to have been duly given unless it actually is received by the individual
for whom it is intended. Either party may change the address to which notices,
requests, demands, claims and other communications hereunder are to be delivered
by giving the other party notice in the manner herein set forth.
7.7 THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, EXCLUDING ITS CONFLICT OF LAWS
RULES.
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ARTICLE VIII
SIGNATURES
NATIONAL AUTO/TRUCKSTOPS, INC. UNION OIL COMPANY OF CALIFORNIA
By: /s/ Xxxxx Xxxxxxxxx By: /s/ X.X. Xxxxxxxxx
----------------------------- -----------------------------
Name: Xxxxx Xxxxxxxxx Name: X.X. Xxxxxxxxx
Title: Vice President and Title: Vice President
Chief Financial Officer
