EXHIBIT 10
LICENSE AND DISTRIBUTION AGREEMENT
This License and Distribution Agreement ("Agreement") is made as of May 11,
2002 by and between Viisage Technology, Inc., a Delaware corporation having its
principal place of business at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Viisage") and Hummingbird Defense Systems, Inc., a Nevada corporation having
its principal place of business at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ("Hummingbird").
Recitals
1. Viisage is in the owner of, and is in the business of developing,
marketing, licensing and selling facial recognition technology and products
("Viisage Technology" as defined herein) and related identification and
surveillance products.
2. Hummingbird is the owner of and is in the business of developing,
marketing, licensing and selling command and control software systems, including
its process equipment control system product called "PECOS" ("Hummingbird
Technology" as defined herein).
3. Viisage wishes to develop and distribute applications incorporating
Hummingbird Technology, and Hummingbird wishes to develop and distribute
applications that incorporate Viisage Technology, subject to the exclusivity
provisions provided for in this Agreement.
4. The parties wish to license their respective technology to each other
and to cooperate in developing and marketing applications that incorporate both
of their technologies, as such are described above.
5. The parties do not intend to engage in the joint development of
products and applications pursuant to this Agreement and will negotiate the
terms of any joint development of products and applications in a separate
written agreement upon undertaking any such joint development.
Accordingly, Viisage and Hummingbird, in consideration of the mutual promises
contained herein and intending to be legally bound, agree to the following terms
and conditions:
Terms and Conditions
1. Defined Terms
1.1 Authorized Distributor means a Licensee distributor of Licensee
Applications that: (a) has been approved by Licensor to distribute Applications;
(b) has agreed in writing to comply with the relevant provisions of this
Agreement, including, without limitation, all of the restrictions on use and
distribution of the Applications, the representations, and the payment and
notice requirements; and (c) for which Licensee has agreed to accept
responsibility for ensuring compliance with all of Authorized Distributors
obligations under this Agreement, including payment to Licensor.
1.2 Authorized Field means use of Viisage Applications and Hummingbird
Applications by Customers in the markets described on Exhibit A attached hereto.
1.3 Applications means Hummingbird Applications and Viisage Applications,
collectively.
1.4 Customer means an end-user that sublicenses Viisage Applications from
Viisage or Hummingbird Applications from Hummingbird pursuant to a Customer
Contract.
1.5 Customer Contract means an agreement that Licensee enters into with a
Customer to license Applications for internal end use only by Customer in the
Authorized Field; such agreement to include the sublicensing terms and
conditions set forth in Section 6 and to otherwise comply with the relevant
terms and conditions of this Agreement.
1.6 Documentation means the user training manual(s) and any other
materials supplied by Licensor for use with the Licensor's Technology.
1.7 Effective Date means May 11, 2002, the date on which this Agreement
is signed.
1.8 Hummingbird Applications mean applications (i.e. systems that include
Viisage Technology and Hummingbird Technology as part of a command and control
solution) developed by Hummingbird or on behalf of Hummingbird that incorporate
Viisage Technology pursuant to the terms of this Agreement.
1.9 Hummingbird Technology means Hummingbird's software systems listed in
Exhibit A.
1.10 Licensee shall be used to refer to the party that is the licensee of
the technology in the relevant provision (i.e. Viisage is the Licensee with
respect to use of Hummingbird Technology, Marks and Documentation and
Hummingbird is the Licensee with respect to Viisage Technology, Marks and
Documentation).
1.11 Licensor shall mean the party that is the owner and licensor of the
Technology, Documentation and Marks in the relevant provision (i.e. Viisage is
the Licensor with respect to Viisage Technology, Documentation and Marks, and
Hummingbird is the Licensor with respect to Hummingbird Technology,
Documentation and Marks).
1.12 Viisage Applications mean applications (i.e. systems that include
Viisage Technology and Hummingbird Technology as part of a command and control
solution) developed by Viisage or on behalf of Viisage that incorporate
Hummingbird Technology pursuant to the terms of this Agreement.
1.13 Viisage Technology means Viisage's facial recognition technology and
products listed in Exhibit A, in executable machine code form only.
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2. Grants of Licenses and Distribution Rights
2.1 Cross-Licenses and Distribution Rights.
2.1.1 License Grant to Hummingbird. Subject to the terms and
conditions of this Agreement, Viisage hereby grants to Hummingbird, and
Hummingbird hereby accepts from Viisage, a worldwide, limited, non-transferable,
non-exclusive license during the term of this Agreement to: (a) integrate
Viisage Technology into Hummingbird Applications for distribution to Customers
in the Authorized Field, provided that such integration shall not involve any
modifications of or alternations to Viisage Technology; (b) sub-license Viisage
Technology to sub-contractors solely for internal use for the purpose of
developing Hummingbird Applications for Hummingbird and providing support to
Customers on behalf of Hummingbird during the term of and subject to the
limitations of this Agreement, provided that such sub-contractors agree to the
relevant terms and conditions of this Agreement in writing, including, without
limitation, the provisions regarding confidentiality and limitations on use of
Viisage Technology; (c) market, distribute, and grant limited term or perpetual
sublicenses to the Viisage Technology as part of the Hummingbird Applications to
Customers in the Authorized Field; (d) use Viisage Technology solely in
connection with marketing, demonstrating and selling Hummingbird Applications to
Customers; (e) provide installation and support services for Customers as
required under Customer Contracts for so long as such Customer Contracts remain
in effect; and (f) to sub-license Hummingbird's Authorized Distributors to
market, distribute and grant limited term or perpetual sublicenses to the
Viisage Technology as part of the Hummingbird Applications to Customers in the
Authorized Field and to use the Viisage Technology in connection with marketing,
selling and supporting such Customers. Hummingbird acknowledges and agrees that
the rights and licenses granted to Hummingbird herein are subject to the
limitations contained herein and are contingent upon Hummingbird's and its
sub-contractors and its Authorized Distributors full compliance with the terms
and conditions of this Agreement.
2.1.2 License Grant to Viisage. Subject to the terms and conditions of
this Agreement, Hummingbird hereby grants to Viisage, and Viisage hereby accepts
from Hummingbird, a worldwide, limited, non-transferable, non-exclusive license
during the term of this Agreement to: (a) integrate Hummingbird Technology into
Viisage Applications for distribution to Customers in the Authorized Field,
provided that such integration shall not, without prior written approval of
Hummingbird, involve any modifications of, or alternations to, Hummingbird
Technology; (b) sub-license Hummingbird Technology to sub-contractors solely for
internal use for the purpose of developing Viisage Applications for Viisage and
providing support to Customers on behalf of Viisage during the term of and
subject to the limitations of this Agreement, provided that such sub-contractors
agree to the relevant terms and conditions of this Agreement in writing,
including, without limitation, the provisions regarding confidentiality and
limitations on use of Hummingbird Technology; (c) market, distribute, and grant
limited term or perpetual sublicenses to the Hummingbird Technology as part of
the Viisage Applications to Customers in the Authorized Field; (d) use
Hummingbird Technology solely in connection with testing, marketing,
demonstrating and selling Viisage Applications to Customers; (e) provide
installation and support services for Customers as required under Customer
Contracts for so long as such Customer Contracts remain in effect; and (f) to
sub-license Viisage's Authorized Distributors to market, distribute and grant
limited term or perpetual sublicenses to the Hummingbird Technology as part of
the Viisage Applications to Customers in the Authorized Field and to use the
Hummingbird Technology in connection with marketing, selling and supporting such
Customers. Viisage acknowledges and agrees that the rights and licenses granted
to Viisage herein are subject to the
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limitations contained herein and are contingent upon Viisage's and its
sub-contractors and its Authorized Distributors full compliance with the terms
and conditions of this Agreement.
2.1.3 Exclusive Use of Licensee Technology in Applications. Both
parties acknowledge that the other party will be providing training, proprietary
information, marketing techniques and making other such investments of time and
resources to support this distribution relationship in reliance on the other
party's investment of time and resources in promoting the Applications. Each
party agrees that it will not purchase, distribute, resell or market any
products or services or applications that include such products and services
provided by a third party that are similar to or compete with the other party's
Technology (Hummingbird Technology and Viisage Technology respectively) during
the term of this Agreement, provided that each party may obtain such products to
satisfy specific business opportunities if the other party is unable to satisfy
it's reasonable commercial needs for such products after being provided with a
reasonable opportunity to do so.
2.2 Limitation of Rights of Licensee.
2.2.1 Licensor does not grant Licensee or Authorized Distributors any
title to or ownership interests in the Licensor Technology, Licensor
Documentation, or any extensions, modifications, upgrades, improvements, or
parts thereof. Except as otherwise expressly provided for in this Agreement,
Licensee and Authorized Distributors shall not have any right to transfer or
assign their license to Licensor Technology or any of their rights under this
Agreement.
2.2.2 Licensee and Licensee's Authorized Distributors shall not have
any right to modify or to create derivative works from Licensor Technology,
provided that Licensee may develop and market Licensee Applications that
incorporate the Licensor Technology in unaltered and unmodified form. Licensee
and its Authorized Distributors shall have no right to receive, review, or
otherwise use or have access to the source code for Licensor's Technology and
Licensee and Authorized Distributors may use and distribute Licensor Technology
only as incorporated into Licensee Applications, only in executable machine code
form, and only to Customers.
2.2.3 All rights in Viisage Technology, and related facial recognition
technology, including but not limited to modifications, extensions, and
improvements thereto, all of Viisage's ideas and their tangible expression, all
product specifications and applications developed by or on behalf of Viisage,
and all Viisage confidential information, trade secrets, trademarks, service
marks, patents, and copyrights, are and will remain the property of Viisage or
its licensors. This Agreement and the licenses granted hereunder are subject to
all restrictions of Viisage licensors of licensor technology embedded in Viisage
Technology.
2.2.4 All rights in Hummingbird Technology, including but not limited
to modifications, extensions, and improvements thereto, all of Hummingbird's
ideas and their tangible expression, all product specifications and applications
developed by or on behalf of Hummingbird, and all Hummingbird confidential
information, trade secrets, trademarks, service marks, patents, and copyrights,
are and will remain the property of Hummingbird or its licensors. This Agreement
and the licenses granted hereunder are subject to all restrictions of
Hummingbird licensors of licensor technology embedded in Hummingbird Technology.
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2.3 Distribution Rights.
2.3.1 Subject to the terms and conditions of this Agreement, Licensor
grants Licensee the right to distribute and to allow its Authorized Distributors
to distribute Licensor Technology that is incorporated into Licensee
Applications to Customers in the Authorized Field, provided that Licensor
Technology is distributed by Licensee and its Authorized Distributors in
accordance with the terms and conditions of this Agreement. Licensee accepts
such appointment and acknowledges and agrees that this appointment and the
rights and licenses granted to Licensee are subject to the limitations contained
herein and are contingent upon Licensee's and its sub-contractors' and
Authorized Distributors' full compliance with the terms and conditions of this
Agreement.
2.3.2 Licensee represents and warrants that it has the power and
authority to enter into and perform its obligations under this Agreement, that
it and its Authorized Distributors do not have any obligations that would
interfere with their performance hereunder, and that the terms of this Agreement
and performance of Licensee's and its Authorized Distributors' obligations under
this Agreement will not violate any applicable laws or regulations in any
relevant jurisdictions.
2.3.3 Licensee shall remain responsible for all obligations to
Licensee's Customers that purchase Licensee Applications from Licensee and its
Authorized Distributors, except as expressly provided in this Agreement.
2.3.4 Licensee and its Authorized Distributors each shall: (a) comply
with the requirements of all applicable laws, rules, regulations and orders of
governmental or regulatory authorities; (b) preserve and maintain its legal
existence and all of its material rights, privileges, and licenses; and (c)
promptly give Licensor notice of all legal or arbitral proceedings, and of all
proceedings by or before any governmental or regulatory authority or agency, and
any material development in respect of such legal or other proceedings affecting
Licensee. Licensee shall notify Licensor in writing within three (3) days of
Licensee's receipt of any notice of threatened or actual litigation or claims
made by a Customer or other parties involving the Licensor Technology or
Licensee Applications.
2.3.5 Licensee shall maintain product liability, and errors and
omissions insurance in amounts reasonably approved by Licensor.
2.3.6 Licensee shall provide Licensor with a copy of any Licensee
Applications that are developed by or on behalf of Licensee prior to commercial
release, unless the parties agree otherwise, and Licensee Applications must
satisfy any of Licensor's basic guidelines on use of Licensor Technology as may
be provided from time to time by Licensor.
2.4 No Reverse Engineering or Modification. Licensee and its
Authorized Distributors may not modify, decompile, copy, disassemble, translate,
or reverse engineer Licensor Technology and may not copy or otherwise reproduce
or modify any Licensor Documentation without the prior written consent of
Licensor, provided that Licensee and its Authorized Distributors may each make
one archival copy of the Licensor Technology to be used only for back up
purposes.
2.5 Display of Trademarks.
2.5.1 Unless otherwise requested by Licensor, Licensee agrees to use
the proprietary, registered name and marks of Licensor and the applicable
product trademarks of
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Licensor (collectively, the "Licensor Marks") on all Licensee Applications that
are distributed to Customers. Licensee agrees not to adapt or use any of the
Licensor Marks in any manner except as expressly provided in this Agreement or
as requested by Licensor, and Licensor shall have the right to inspect Licensee
Applications utilizing the Licensor Marks. Licensee may not alter any
proprietary markings on Licensor Technology or on the Licensor Documentation,
including copyright, trademark, and patent legends, without Licensor's prior
written permission.
2.5.2 Licensee and its Authorized Distributors shall have a limited,
non-exclusive, non-transferable, license to use and display the Licensor Marks
on the Licensee Applications and in connection with the marketing and
distribution of Licensee Applications in the Authorized Field during the Term,
all in accordance with such specifications for use of the Licensor Marks as
Licensor may, in its discretion, establish and modify from time to time and
subject to any other requirements imposed by this Agreement.
2.5.3 Licensee and each of its Authorized Distributors acknowledges
and agrees that: (a) the Marks are and shall remain the sole property of
Licensor; (b) nothing in this Agreement shall convey to Licensee or its
Authorized Distributors any right of ownership in the Licensor's Marks; (c)
Licensee and Authorized Distributors shall not now or in the future contest the
validity of the Licensor's Marks; and (d) Licensee and its Authorized
Distributors each shall not in any manner take any action that would impair the
value of, or goodwill associated with, such Licensor Marks and with the Licensor
Technology.
3. Royalties and Support Fees Payable by Hummingbird to Viisage
3.1 Fees. In consideration for the license granted to Hummingbird under
this Agreement and other rights and benefits granted hereunder, Hummingbird
agrees to pay the fees specified in Exhibit B ("Viisage Fees" as defined
therein) according to the payment terms provided for therein. Hummingbird's
Authorized Distributors shall be required to pay the same Viisage Fees, and
Hummingbird shall be responsible for ensuring payment to Viisage of the Viisage
Fees payable by Hummingbird's Authorized Distributors.
3.2 Payments. All payments to be made pursuant to this Section 3 shall be
made in United States Dollars. Late payments shall bear interest at the then
prime rate published in the Wall Street Journal plus 4%.
3.3 Taxes. Hummingbird shall pay any duties and excise taxes, now or
hereafter applied on the sale, transportation, import, export, licensing or use
of Hummingbird Applications, including sales tax, value added tax or similar
tax. Any taxes imposed by government or any amount in lieu thereof, including
interest and penalties thereon, paid or payable at any time by Viisage in
connection with Viisage's license to Hummingbird, exclusive of taxes based on
Viisage's net income, shall be borne by Hummingbird .
3.4 Periodic Reports, Audits. On a quarterly basis Hummingbird will
furnish to Viisage a report of revenues generated from Hummingbird Applications,
including gross sales and sublicense fees from sales of Hummingbird Applications
by Hummingbird and its Authorized Distributors, and including Customer
information if requested by Viisage. During the term of this Agreement and for
six (6) months after termination, at Viisage's reasonable request and at its
expense, at mutually agreeable times, Viisage or its agent or representative
will
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be provided reasonable access during normal business hours to Hummingbird's and
its Authorized Distributors' books and records for purposes of inspecting and
auditing books and records relating to this Agreement, the distribution and
licensing of Hummingbird Applications, and the fees due to Viisage pursuant to
this Agreement.
4. Royalties and Support Fees Payable by Viisage
4.1 Fees. In consideration for the license granted to Viisage under this
Agreement and other rights and benefits granted hereunder, Viisage agrees to pay
the fees specified in Exhibit C ("Hummingbird Fees" as such are defined
therein), according to the payment terms provided for therein. Viisage's
Authorized Distributors shall be required to pay the same Hummingbird Fees, and
Viisage shall be responsible for ensuring payment to Hummingbird of the
Hummingbird Fees payable by Viisage's Authorized Distributors.
4.2 Payments. For the first one million dollars ($1,000,000) of
Hummingbird Fees payable to Hummingbird by Viisage pursuant to this Agreement,
the Hummingbird Fees shall be payable in shares of the common stock of Viisage
("Shares"), based on a price per share of $4.50 (the "Share Price"). The number
of Shares payable to Hummingbird in satisfaction of the Hummingbird Fees shall
be calculated at the end of each quarter dating from the Effective Date and
shall be determined by dividing the total amount of Hummingbird Fees by the
Share Price. Any additional Hummingbird Fees shall be paid in United States
dollars according to the payment terms provided in Exhibit C.
4.3 Registration of Shares.
(a) Hummingbird acknowledges and understands that prior to the
registration of the Shares as provided below, the Shares are "restricted
securities" as defined in Rule 144 promulgated under the Securities Act of 1933,
as amended. Hummingbird understands that no disposition or transfer of the
Shares may be made in the absence of (i) an opinion of counsel, in form and
substance reasonably satisfactory to Viisage, that such transfer may be made
without registration under the Securities Act or (ii) such registration.
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(b) Viisage agrees that, no later than (i) six months after the date of
this Agreement or (ii) the date on which Shares are first issued to Hummingbird
hereunder, whichever is later, it will prepare and file with the Securities and
Exchange Commission ("Commission") a registration statement under the Securities
Act (the "Registration Statement"), so as to permit the public resale of the
Shares by Hummingbird. Hummingbird agrees that, if applicable, Viisage may
convert any Registration Statement filed on Form S-1 (or similar long-form
registration statement) to a short-form Registration Statement on Form S-3 by
post-effective amendment if Viisage in good faith determines that such
conversion is advisable or desirable. Viisage will maintain the Registration
Statement filed hereunder (or any post-effective amendment) effective under the
Securities Act until all of the Shares have been sold pursuant to such
Registration Statement or all Shares then held by Hummingbird are eligible to be
sold under an exemption from the registration requirements of the Securities
Act. All fees, disbursements and out-of-pocket expenses and costs incurred by
Viisage in connection with the preparation and filing of the Registration
Statement shall be borne by Viisage. Hummingbird shall bear the cost of
underwriting and/or brokerage discounts, fees and commissions, if any,
applicable to the Shares being registered and the fees and expenses of its
counsel.
(c) Nothing herein shall preclude Viisage from selling securities, or
including selling shareholders other than Hummingbird, under any Registration
Statement filed in satisfaction of this Section 4.3.
(d) If, at any time or from time to time after the effective date of any
Registration Statement, Viisage notifies Hummingbird in writing of the existence
of a Potential Material Event (as defined below), Hummingbird shall not offer or
sell any Shares or engage in any other transaction involving or relating to the
Shares from the time of the giving of notice with respect to a Potential
Material Event until Hummingbird receives written notice from Viisage that such
Potential Material Event either has been disclosed to the public or no longer
constitutes a Potential Material Event. If a Potential Material Event occurs
prior to the date the Registration Statement is required to be filed, then
Viisage's obligation to file such Registration Statement shall be delayed
without penalty for not more than thirty (30) days. "Potential Material Event"
means any of the following: (a) the possession by Viisage of material
information not ripe for disclosure in a registration statement, as determined
in good faith by Viisage that disclosure of such information in a Registration
Statement would be detrimental to the business and affairs of Viisage; or (b)
any material engagement or activity by Viisage which would, in the good faith
determination of Viisage, be adversely affected by disclosure in a registration
statement at such time, which determination shall be accompanied by a good faith
determination by Viisage that the Registration Statement would be materially
misleading absent the inclusion of such information.
(e) Hummingbird will cooperate with Viisage in all respects in connection
with the Registration Statement, including timely supplying all information
reasonably requested by Viisage (which shall include all information regarding
Hummingbird and the proposed manner of sale of the Shares required to be
disclosed in any Registration Statement) and executing and returning all
documents reasonably requested in connection with the registration and sale of
the Shares and entering into and performing its obligations under any
underwriting agreement, if the offering is an underwritten offering, in usual
and customary form, with the managing underwriter or underwriters of such
underwritten offering. Any delay or delays caused by Hummingbird's
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failure to cooperate as required hereunder shall extend the period in which
Viisage is required to file the Registration Statement.
4.4 Taxes. Viisage shall pay any duties and excise taxes, now or hereafter
applied on the sale, transportation, import, export, licensing or use of Viisage
Applications, including sales tax, value added tax or similar tax. Any taxes
imposed by government or any amount in lieu thereof, including interest and
penalties thereon, paid or payable at any time by Hummingbird in connection with
Hummingbird's license to Viisage, exclusive of taxes based on Hummingbird's net
income, shall be borne by Viisage.
4.5 Periodic Reports, Audits. On a quarterly basis Viisage will furnish to
Hummingbird a report of revenues generated from the Viisage Applications,
including gross sales and sublicense fees from sales of Viisage Applications by
Viisage and its Authorized Distributors, and including Customer information if
requested by Hummingbird. During the term of this Agreement and for six (6)
months after termination, at Hummingbird's reasonable request and at its
expense, at mutually agreeable times, Hummingbird or its agent or representative
will be provided reasonable access during normal business hours to Viisage's
books and records for purposes of inspecting and auditing books and records
relating to this Agreement, the distribution and licensing of the Viisage
Applications, and the fees due to Hummingbird pursuant to this Agreement.
5. Publicity; Marketing
5.1 Publicity. Each Party shall obtain the other Party's prior written
approval for all press releases and similar publications relating to use of
Applications.
5.2 Marketing and Support. During the term of this Agreement, the Parties
agree to cooperate in their marketing activities and may from time to time
engage in joint promotional activities. The Parties agree to work together to
avoid any channel conflicts when selling their respective Applications to
Customers.
6. Sublicense Terms and Conditions
6.1 Sublicense Terms and Conditions relating to Viisage Technology. All
Customer Contracts shall include sublicensing terms which are materially similar
to the terms provided on Exhibit D attached hereto, as may be amended from time
to time by Viisage, and shall be subject to the reasonable approval of Viisage,
such approval not to be unreasonably withheld or delayed. Viisage shall have the
right, in its discretion, to withhold its approval of any terms which materially
conflict with the substance of the terms set forth on Exhibit D. Viisage shall
have no liability, and Hummingbird shall indemnify Viisage, with respect to any
terms or conditions that Hummingbird or its Authorized Distributors include that
vary from sublicensing terms that have been approved by Viisage in writing.
6.2 Sublicense Terms and Conditions relating to Hummingbird Technology.
All Customer Contracts shall include sublicensing terms which are materially
similar to the terms provided on Exhibit E attached hereto, as may be amended
from time to time by Hummingbird, and shall be subject to the reasonable
approval of Hummingbird, such approval not to be unreasonably withheld or
delayed. Hummingbird shall have the right, in its discretion, to
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withhold its approval of any terms which materially conflict with the substance
of the terms set forth on Exhibit E. Hummingbird shall have no liability, and
Viisage shall indemnify Hummingbird, with respect to any terms or conditions
that Viisage or its Authorized Distributors includes that vary from sublicensing
terms that have been approved by Hummingbird in writing.
6.3 Limitation on Representations. Licensee and its Authorized
Distributors shall not make any representations or warranties to any third party
as to the specifications, capabilities, or performance of the Licensor
Technology, except with Licensor's prior written consent, which consent may be
withheld by Licensor in its sole discretion.
7. Support and Training
7.1 Training. Licensor will provide a reasonable number of Licensee
personnel with training on how to use and support the Licensor Technology from
time to time during the term of this Agreement at no charge to Licensee,
provided that Licensee shall be responsible for all travel and related expenses
incurred by Licensee. Such training shall be conducted at mutually agreeable
times at the Licensor's headquarters unless the parties agree to hold the
training sessions at another location.
7.2 Engineering Assistance Provided. From time to time in its sole
discretion, Licensor may offer to Licensee product coordination and software
application support from Licensee's engineering staff at Licensor's then current
commercial rates and according to Licensor's then current payment terms, and
subject to availability.
7.3 Customer Support. Licensee shall be solely responsible for, and agrees
to provide, or require its Authorized Distributors to provide, adequate
installation services and support to Customers for Licensee Applications.
7.4 Licensee's Rights to Enhancements and Upgrades. Licensee and its
Authorized Distributors shall have a non-transferable, non-exclusive right and
license to receive, use and sublicense to Customers upgrades and enhancements to
Licensor Technology that are made available for commercial use by Licensor
during the term of this Agreement for the Support Fees provided for in Section 3
and 4 of this Agreement, as applicable. Upgrades and enhancements to Licensor
Technology shall be subject to the same terms and restrictions on use as the
Licensor Technology.
8. Representations and Warranties; Limitations of Remedies
8.1 Mutual Representations and Warranties. Each of the parties represents
and warrants that: (a) it is a corporation duly organized, validly existing, and
in good standing under the laws of the jurisdiction of its incorporation and all
necessary action, corporate or otherwise, has been taken by it to execute,
deliver, and perform this Agreement; and the execution, delivery, and
performance of this Agreement does not violate any applicable charter or bylaws;
and (b) the execution and performance of this Agreement does not, and will not
breach, any duty owed by said party to any other person, corporation, or entity.
8.2 THE LICENSORS' TECHNOLOGY, DOCUMENTATION, AND APPLICATIONS ARE
PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND,
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EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT. LICENSORS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THEIR
RESPECTIVE TECHNOLOGY AND APPLICATIONS WILL MEET LICENSEES' OR ANY AUTHORIZED
DISTRIBUTORS' OR CUSTOMER'S REQUIREMENTS, OR THAT OPERATION OF THE LICENSORS'
TECHNOLOGY THEREIN WILL BE UNINTERRUPTED OR ERROR FREE.
8.3 Exclusion of Consequential Damages. IN NO EVENT SHALL LICENSOR BE
LIABLE TO LICENSEE, SUB-CONTRATORS, AUTHORIZED DISTRIBUTORS, OR ANY CUSTOMER OR
OTHER END USER FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING,
BUT NOT LIMITED TO, LOST PROFITS, LOST OPPORTUNITIES, COSTS OF DELAY, ANY
FAILURE OF DELIVERY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR
LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF THE PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WITH THE EXCEPTION OF ANY DAMAGES
ARISING UNDER SECTION 10.
8.4 Aggregate Limit. IN NO CASE SHALL THE AGGREGATE AMOUNT OF DAMAGES
PAYABLE BY LICENSOR TO LICENSEE OR TO A LICENSEE'S AUTHORIZED DISTRIBUTOR FOR
ANY CLAIM ARISING FROM THE LICENSOR'S TECHNOLOGY, APPLICATIONS, OR THIS
AGREEMENT EXCEED THE AMOUNTS PAID BY LICENSEE OR AUTHORIZED DISTRIBUTOR TO
LICENSOR, RESPECTIVELY, PURSUANT TO SECTION 3 (FOR VIISAGE AS LICENSOR) and
SECTION 4 (FOR HUMMINGBIRD AS LICENSOR) UNDER THIS AGREEMENT, DURING THE SIX
MONTH PERIOD PRIOR TO SUCH CLAIM, WITH THE EXCEPTION OF CLAIMS ARISING UNDER
SECTION 10.
9. Confidentiality; Non-Solicitation; Conflicting Obligations
9.1 Non-Disclosure. Each Party will keep confidential and will not
disclose to any third party, or appropriate for its own use or for the use of
any third party (except as contemplated under this Agreement and in accordance
with the terms herein), any Confidential Information received from the other
Party, and will take reasonable precautions to protect such information from
unauthorized disclosure, except that a party may disclose Confidential
Information: (a) to its employees or representatives who need to know to further
the purposes of the Agreement, and (b) as required by law, regulation, or court
order. If a Party is legally compelled to disclose Confidential Information of
the other Party hereto, said Party will provide the other Party with prompt
prior written notice and an opportunity (if then available) to contest the
propriety of such order or subpoena (or to arrange appropriate safeguards
against any further disclosure by the entity seeking to compel disclosure of
such Confidential Information). For purposes of this Agreement, "Confidential
Information" means confidential or proprietary information or material of the
disclosing Party, including, without limitation, intellectual property, trade
secrets, computer programs, technology, data, specifications, and know-how.
"Confidential Information" will not include those portions of information that
are: (a) in the public domain through no unlawful act or fault of the receiving
Party, or (b) provided by a third party who was free to lawfully disclose it.
Authorized Distributors shall similarly agree to this provision.
11
9.2 Non-Solicitation. The Parties acknowledge that each Party has incurred
substantial effort and expense in locating and training their respective
personnel. Accordingly, and as a material inducement to entering into this
Agreement, the Parties hereby agree that, except as expressly agreed to by the
Parties, neither they, nor their affiliates, successors or assigns shall
directly or indirectly solicit or accept solicitations to hire, or hire, or
otherwise retain the services of the other Party's personnel at any time while
this Agreement is in effect or within one (1) year thereafter without the other
Party's prior written consent in each instance.
9.3 Conflicting Obligations. Each Party represents that the Party does not
have any existing obligations or duties or arrangements with third parties that
would interfere with its ability to perform under this Agreement and each party
agrees not to enter into or undertake any arrangements that would interfere
with, undermine, or conflict with its obligations under this Agreement.
9.4 Equitable Remedies. The Parties acknowledge that the restrictions set
forth in this Section 9 in this Agreement are reasonable to protect the other
party's business interests. Accordingly, the Parties acknowledge that a
violation of a provision of this Section 9 would cause immediate and irreparable
harm to the other Party. Therefore, the Parties agree that in addition to any
other legal and/or equitable relief of remedies available to the other Party for
enforcement of the terms of this Section 9, the other Party shall be entitled to
injunctive relief against any violation of this Section 9.
10. Indemnification
10.1 Licensor Indemnification. Licensor shall defend or, at its option,
settle any claim or proceeding brought against Licensee or its Authorized
Distributors to the extent that it is based on an assertion that the Licensor
Technology infringe any United States patent or copyright of any third party,
and shall indemnify Licensee against all costs, damages, and expenses (including
reasonable attorneys fees) incurred by Licensee which result from any such
claim, provided that Licensor shall have no liability hereunder unless (i)
Licensee gives prompt written notice of any such claim or proceeding to
Licensor, (ii) Licensor has sole control of the defense of any such claim or
proceeding and all negotiations for its compromise or settlement, and (iii)
Licensee reasonably cooperates in the defense and settlement thereof and does
not admit liability or settle such claim without Licensor's written consent. In
the event that Licensor Technology or any part thereof is likely to become, in
Licensor's opinion, or become, the subject of a claim, suit, proceeding, or
action for infringement or misappropriation of a United States patent or
copyright or trade secret, Licensor shall have the right, at its option and
expense, to perform one of the following in its discretion: (a) replace Licensor
Technology with compatible, functionally equivalent non-infringing technology;
(b) modify Licensor Technology to make them non-infringing without impairing
Licensee's ability to use and operate Licensor Technology in accordance with
Licensor Documentation; or (c) procure, at no increased cost to Licensee, the
right to continue using Licensor Technology.
10.2 Non-Infringing Releases. If Licensor supplies, at its expense, a
non-infringing release of Licensor Technology or non-infringing replacement
products, Licensee and its Authorized Distributors shall require the Customer to
permit installation of such non-infringing releases or products on its system or
hardware and terminate use of prior release(s) of Licensee Applications.
12
10.3 No Liability. Licensor shall have no liability to Licensee that is
based on or arises out of the use of the Licensee Applications or any component
thereof when any modification not authorized in writing by Licensor causes
infringement, where the infringement is attributable in whole or in part to
Licensee Application, or where the combination of Licensor Technology with other
hardware or software not licensed, provided by, or approved by Licensor causes
the infringement.
10.4 Discontinuance of Products. If, in its judgment, Licensor deems that,
due to a claim or proceeding based on alleged infringement, it is not
commercially feasible for Licensor to implement the remedies specified in
10.1(a) through (c) above, Licensor may require Licensee, upon thirty (30) days
written notice, to terminate the use of Licensor Technology. Thirty days after
notice to cease the use of Licensor Technology, including use in Licensee
Applications, the Agreement shall terminate as to the Licensor Technology
involved, and Licensee shall receive reasonable compensation on a pro-rated
basis, as determined by Licensor acting in good faith, for fees paid under
Sections 3 or 4 as applicable.
10.5 Indemnification by Licensee. Licensee shall indemnify Licensor and its
directors, officers, employees and agents from, and hold each of them harmless
against, any and all losses, liabilities, claims, damages or expenses incurred
by any of them arising out of or by reason of any claim, investigation,
litigation or other proceeding (including any threatened investigation or
litigation or other proceedings) relating to any act or service performed by
Licensee or Licensee's sub-contractors or Authorized Distributors hereunder, or
arising from the use or sublicense by Licensee and its Authorized Distributors
of Licensee Applications, including without limitation the reasonable fees and
disbursements of counsel incurred in connection with any such investigation or
litigation or other proceedings (but excluding any such losses, liabilities,
claims, damages or expenses incurred by reason of the gross negligence or
willful misconduct of the person to be indemnified and any losses attributable
to claims under Section 10.1).
11. Term and Termination
11.1 Term. The Agreement shall commence upon the date first set forth above
and shall continue for a term of three (3) years unless it is sooner terminated
as provided for herein or by the mutual written agreement of the parties. This
Agreement shall automatically renew for one (1) additional three (3) year terms
unless either party provides written notice of that party's intent to terminate
the Agreement at least thirty (30) days prior to the anniversary of any one year
period. The terms of any sublicensing agreements with Authorized Distributors
shall not extend beyond the term of this Agreement, and shall terminate with
this Agreement.
11.2 Default. If either Party materially breaches any of its non-monetary
obligations under this Agreement and any such breach continues for a period of
thirty (30) days after it receives written notice of such breach (provided that
if the breach is curable, the thirty (30) day period shall be extended while the
breaching party diligently pursues a cure), then the non-breaching party shall
have the right to terminate its obligations under this Agreement, effective upon
written notice to the breaching party. A breach of the terms of this Agreement
by Licensee's Authorized Distributor shall be treated as a breach by Licensee
and Licensee shall be responsible for remedying the breach and/or terminating
the Authorized Distributor.
13
11.3 Termination by Licensor. In addition to the foregoing, Licensor may
terminate this Agreement in the following circumstances:
11.3.1 Immediately upon notice if Licensee or Licensee's
sub-contractors commit a material breach of any of their obligations concerning
the scope of use or the protection of the Licensor Technology, or Confidential
Information; or
11.3.2 Immediately upon notice if Licensee's Authorized Distributor
commits a material breach of any of its obligations concerning the scope of use
or protection of the Licensor's Technology or Applications, or Confidential
Information and Licensee fails to take appropriate action, including termination
of its agreement with the breaching Authorized Distributor; or
11.3.3 Immediately upon notice if Licensee (a) seeks the
liquidation, reorganization, dissolution or winding-up of itself, (b) applies
for or consents to the appointment of, or the taking of possession by, a
receiver, custodian, trustee or liquidator of itself or of all or a substantial
part of its assets, (c) makes a general assignment for the benefit of its
creditors, (d) commences a voluntary case under the applicable bankruptcy laws,
or (e) files a petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding-up or composition or
readjustment of debts, or is reasonably likely to engage in any of the above
(and Licensee agrees to terminate any of its Authorized Distributors who takes
any of the above actions); or
11.3.4 Immediately upon notice if a proceeding or case shall be
commenced or is reasonably likely to commence against Licensee without the
application or consent of Licensee and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any of the
following shall be entered and continue unstayed and in effect, for a period of
sixty (60) days from and after the date service of process is effected upon the
party, seeking (a) Licensee's liquidation, reorganization, dissolution or
winding-up, or the composition or readjustment of its debts, (b) the appointment
of a trustee, receiver, custodian, liquidator or the like of Licensee or of all
or any substantial part of its assets, or (c) similar relief in respect of
Licensee under any law relating to bankruptcy, insolvency, reorganization,
winding-up or the composition or readjustment of debts (and Licensee agrees to
terminate any Authorized Distributor who is subject to any of the above actions
or events).
11.4 Consequences. Upon termination of this Agreement, the License to use
the Licensor Technology shall terminate, and Licensee shall, unless otherwise
agreed to by Licensor in writing, (a) destroy or promptly return to Licensor all
copies of the Licensor Technology and Licensor Documentation and any other
Confidential Information, (b) cease to use and distribute Licensee Applications,
and (c) cease to use any Licensor Marks, and ensure that its sub-contractors do
the same. Following the termination of this Agreement, each existing Customer as
of the date of termination shall have the right to continue to use the Licensee
Applications pursuant to Customer Contracts existing as of the date of
termination, provided that the amounts specified in Section 3.1 or Section 4.1,
as appropriate, are paid to Licensor and that Licensee shall continue to support
existing Customer Contracts. In no event shall the termination of this Agreement
relieve Licensee of its obligation to pay the amounts payable to Licensor
hereunder. Licensee shall require the same conditions of any of its terminated
Authorized Distributors (including amounts payable by its Authorized
Distributors).
12. Government Regulations, Government Users, and Foreign Corrupt Practices Act
14
12.1 Licensee is familiar with the Foreign Corrupt Practices Act of 1977 of
the United States of America, as amended (the "FCPA"), its purposes and the
rules and regulations promulgated thereunder, and has not made or taken any
action which would cause Licensee to be in violation of the FCPA. There is not
now, nor has there ever been, any employment of or beneficial ownership of
Licensee or sub-contractors or Licensee's Authorized Distributors by any
governmental or political official in any country in the world.
12.2 Licensee shall indemnify Licensor and its directors, officers,
employees, attorneys and agents from, and hold each of them harmless against,
any and all losses, liabilities, claims, damages or expenses (including
reasonable attorney's fees) incurred by any of them arising out of or by reason
of any pending or threatened investigation of litigation or other proceedings
relating to any violation or suspected violation of the provisions of the FCPA
which gives rise to such investigation, litigation or other proceedings relating
to actions or activities of Licensee or its Authorized Distributors.
12.3 If the terms of this Agreement are such as to require or make it
appropriate that this Agreement or any part of it to be registered with or
reported to any national or supranational agency in any area in which Licensee
will do business hereunder, Licensee will, at its expense, promptly undertake
such registration or report and will supply prompt notice and appropriate
verification of any such registration or report and any agency ruling resulting
therefrom.
12.4 All Licensor Technology is provided with RESTRICTED RIGHTS under
Federal Acquisition Regulations and agency supplements to them. Use, duplication
or disclosure by the Government of the United States of America, its agencies or
instrumentalities is subject to restriction as set forth in subparagraph
(c)(1)(ii) of the Rights in Technical Data and Compute Software clause at DFAR
252,227-7013, or subparagraphs (c)(1) and (2) of the Commercial Computer
Software - Restricted Rights Clause at 48 CFR 52.227-19, as applicable, or
successor provision.
13. Products Orders and Delivery
13.1 Licensee shall place orders for Licensor Technology during the term of
this Agreement via Licensor standard purchase orders transmitted to Licensor.
Shipments shall be made to Licensee at the address provided in Section 14.5
unless otherwise agreed to by the parties. Risk of loss of Licensor Technology
shall pass to Licensee upon delivery by Licensor to Licensee.
13.2 Licensor will provide Licensee with Licensor Technology within ten
(10) days or receipt of a purchase order from Licensee. Licensor shall be
entitled to an additional two (2) weeks to deliver Licensor Technology upon
request by Viisage.
13.3 Inspection and Acceptance Licensee shall inspect Licensor Technology
immediately upon delivery and shall, within seven (7) calendar days, give
written notice to Licensor of any claim for damages or shortages, and written
notice to Licensee for any defects in the Licensor Technology. If Licensee fails
to give any such notice the Licensor Technology be deemed accepted for all
purposes of this Agreement.
14. Miscellaneous
15
14.1 Survival. The terms and conditions of Sections 2.2, 2.4, 2.5.3, 3.4,
4.5, 6, 8, 9, 10, 11.4, and 12 shall survive the termination of this Agreement.
14.2 Force Majeure. Neither party to this Agreement shall be liable for any
delay in its performance or failure to perform (other than payment of sums due)
resulting from causes beyond its control and not attributable to its fault or
negligence, including, but not limited to, electrical or other utilities failure
(including telecommunications failure), delays in or failures of performance by
the other party, acts of civil or military authority, acts of God or of the
public enemy, war, civil disorder, embargo, strike, fire, or natural disaster
(each, a "Force Majeure Event"). Neither party shall be liable for any damages
or other claims resulting from a Force Majeure Event or termination as a result
thereof as provided in this section.
14.3 Further Assistance. Each party agrees to execute and deliver, or cause
to be executed and delivered, such further instruments and do and cause to be
done such further acts and things that may be necessary or as the other party
hereto may at any time and from time to time reasonably request in connection
with this Agreement or to carry out the provisions and purposes of, or to better
assure and confirm unto such other party its rights and remedies under, this
Agreement.
14.4 Independent Contractors. This Agreement shall not constitute or
otherwise imply a joint venture, partnership, employment relationship, or any
other form of business association of any kind. Each party to this Agreement
shall act as an independent contractor.
14.5 Notice. All notices under this Agreement shall be in writing and sent
by overnight courier service or hand-delivered, or by e-mail or facsimile
transmission with a confirmatory copy sent in writing by overnight mail, to each
applicable party at the address set forth below or at such other address as to
which such party may inform the other parties in writing in compliance with the
terms of this Section:
If to Viisage: Viisage Technology, Inc.
Att: President
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to Hummingbird: Hummingbird Defense Systems
Attn: President
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
14.6 Assignment; Binding Effect. Licensee shall not assign this Agreement
or the License granted hereunder except as mutually agreed upon in writing.
Viisage shall have the right to assign its rights and obligations under this
Agreement in its discretion. This Agreement shall be binding upon and
enforceable by and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
16
14.7 Severability. If any one or more of the provisions contained in the
Agreement is or become invalid, illegal or unenforceable in any jurisdiction or
in any applicable law, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired and, in such case, the Parties hereto oblige themselves to reach the
purpose of the invalid provisions by a new, valid and legal stipulation.
14.8 Miscellaneous. This Agreement, including all exhibits hereto and any
non-disclosure agreements entered into by the Parties relating to this
Agreement, constitutes the entire agreement of the parties with respect to the
subject matter hereof and supersedes all previous oral or written agreements.
This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts, without regard to its choice of law rules, and the Parties (and
sub-contractors and Authorized Distributors) agree to be subject to the
jurisdiction of the courts of the Commonwealth of Massachusetts and the federal
courts located therein. This Agreement may not be modified or amended except by
a writing which is signed by the duly authorized representatives of each of the
Parties. The failure of either Party to exercise any right or the waiver by
either Party of any breach, shall not prevent a subsequent exercise of such
right or be deemed a waiver of any subsequent breach of the same of any other
term of the Agreement. This Agreement may be executed in counterparts. Headings
are for convenience only.
Agreed, under seal, as of the date first set forth above.
HUMMINGBIRD DEFENSE VIISAGE TECHNOLOGY, INC.
SYSTEMS INC.
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: CEO/H.DS.I. Title: President & CEO
17
Exhibit A
Markets Included in Authorized Field
"Authorized Field" means use of Applications by Customers in the following
market(s):
All markets, worldwide, with the exception of use in Korea and use in
connection with access control and surveillance systems used by owners and
operators of pipe lines and power plants and use in connection with automated
cashier machine technologies used in gaming environments (collectively "Excluded
Fields"); provided that certain Customers within the Excluded Fields may be
included in the Authorized Field with the prior written consent of Viisage and
of its exclusive licensees in such Excluded Fields.
Viisage Facial Recognition Products and Technology Licensed Under this
Agreement
"Viisage Technology" shall mean the executable machine code of the Viisage
facial recognition products and technology that are made commercially available
to vendors and licensees during the term of this Agreement.
Hummingbird Products and Technology Licensed Under this Agreement
"Hummingbird Technology" shall mean:
All existing PECOS command and control software products existing on the
date this Agreement is executed and any new versions and modifications of such
products and any related products existing or developed by Hummingbird during
the term of this Agreement.
Exhibit B
License Fees Payable by Hummingbird
Fees set forth on Viisage Authorized Dealer Price Schedule rev. 3/1/02.
Payment Terms
All prices are in U.S. dollars and shall be made by bank wire transfer to an
account designated by Viisage.
Viisage Fees are payable on a quarterly basis dating from the effective date of
this Agreement, on the last business day of each such quarter.
2
Exhibit C
License Fees Payable by Viisage
Fees set forth on Hummingbird Authorized Dealer Price Schedule
furnished to Viisage.
For payment received in Shares, the recipient of such Shares agrees to sign a
standard investment representation letter confirming, among other things, status
as an accredited investor under the federal securities laws.
Payment Terms
All prices are in U.S. dollars and shall be made as provided in Section 4.
Viisage Fees are payable on a quarterly basis dating from the effective date of
this Agreement, on the last business day of each such quarter.
3
Exhibit D
APPROVED SUBLICENSING TERMS
SECTION 1. DEFINITIONS
As used in this Agreement, the following definitions shall apply:
1.1 "Authorized Field" shall mean _________.
1.2 "Confidential Information" shall mean the Products, Documentation,
and other information that is identified by Licensor as confidential or
proprietary. Confidential Information does not include information (a) already
known to or independently developed by Licensee and which is not based upon or
derived from Licensor's Confidential Information, (b) generally known to the
public through no wrongful act or fault of Licensee, or (c) disclosed by a third
party who has a right to do so without restriction as to disclosure thereof.
1.3 "Documentation" shall mean the user training manual(s) and any other
materials supplied by Licensor for use with the Products.
1.4 "Licensor" shall mean _____________.
1.5 "Products" shall mean the machine-readable object code of any
software related to or incorporated into the products being licensed under this
Agreement, as such are described in Exhibit ___ attached hereto, including any
modifications, enhancements, or upgrades thereto.
SECTION 2. GRANT OF LICENSE
Subject to the terms and conditions of this Agreement, Licensor hereby
grants to Licensee, and Licensee hereby accepts, a limited, non-exclusive,
non-transferable license to use the Products, along with related Documentation,
for internal end use only and only in the Authorized Field (the "License").
The License granted authorizes the operation and use of the Products only
by employees or agents of the Licensee ("Authorized Users") on the designated
computer hardware authorized by Licensor ("Authorized Hardware") at the
designated locations authorized by Licensor ("Authorized Locations"), and
pursuant to the terms set forth herein. If the Products is installed on a
network, access is restricted to Authorized Users at Authorized Locations on
Authorized Hardware. Licensee will be responsible for ensuring that Authorized
Users abide by the terms of this Agreement. The License is subject to third
party proprietary rights which have been licensed to Licensor and, accordingly,
this Agreement and the License granted hereunder are subject to all such third
party's rights and restrictions.
SECTION 3. NO OWNERSHIP RIGHTS
4
The grant of the License hereunder does not grant Licensee any title to or
ownership rights or interest in the Products, Documentation, or any part
thereof. Licensee shall not have any right to sublicense, transfer, or assign
the Products or any of its rights under this Agreement, or to modify, market,
copy (except for back up purposes as expressly authorized herein), or distribute
the Products or make the Products available to any person other than Authorized
Users, or to create derivative works from the Products. This section shall
survive the expiration or termination of this Agreement.
SECTION 4. RESTRICTIONS ON USE OF PRODUCTS AND DOCUMENTATION
4.1 Licensee may make and maintain no more than one archival copy of the
Products to be used for backup purposes, and such archival copy shall contain
all legends and notices and will be subject to the same restrictions as the
original Products. Licensee may not otherwise copy or reproduce the Products and
may not distribute the Products.
4.2 Licensee may not copy or otherwise reproduce any Documentation.
4.3 Licensee may not modify, create derivative works from, decompile,
disassemble, translate, or reverse engineer the Products. Licensee shall not
modify third party software embedded or contained in or provided with the
Products.
4.4 Licensee may not alter any proprietary markings on the packaging of
the Products or on the Documentation, including copyright, trademark, and patent
legends.
4.5 This section shall survive the termination or expiration of this
Agreement.
SECTION 5. CONFIDENTIAL INFORMATION
5.1 Licensee acknowledges that the Products and the Documentation
contain Confidential Information. Licensee agrees to keep confidential and not
to disclose the Confidential Information (except with the prior written consent
of Licensor ) and to take the same precautions it takes in protecting its own
confidential information (and in no event less than the industry standard) to
ensure that no unauthorized persons have access to the Confidential Information
and that no unauthorized copies are made, provided, however, that Licensee may
disclose Confidential Information as required by law, regulation, or court order
and to Licensee's employees or agents who have a need to receive or use such
Confidential Information and who shall be obligated in a similar manner. If
Licensee is legally compelled to disclose such Confidential Information,
Licensee shall provide Licensor with prompt prior written notice of such
requirement and an opportunity for Licensor to participate in such legal
proceedings to the greatest extent possible.
5.2 Upon expiration or termination of this Agreement, Licensee shall
promptly return to Licensor all Confidential Information and copies of the
Products or certify to Licensor that such Confidential Information and Products
have been destroyed.
5
5.3 Licensee acknowledges that the restrictions on the use, duplication,
and disclosure of the Confidential Information as set forth herein are
reasonable to protect Licensor`s business interests. Licensee acknowledges that
a violation of a provision of this section would cause immediate and irreparable
harm to Licensor. Therefore, Licensee agrees that in addition to any other legal
and/or equitable remedies available to Licensor for enforcement of the terms
hereof, Licensor shall be entitled to injunctive relief against any violation of
this section.
5.4 This section shall survive the expiration or termination of this
Agreement.
SECTION 6. DISCLAIMER OF LIABILITY; LIMITATION ON DAMAGES.
6.1 Licensor warrants that with normal use and service under ordinary
operating conditions, the Products will perform substantially in accordance with
accompanying Documentation for ninety (90) days after the date Licensor delivers
the Products to Licensee or its authorized agent, provided that such Products
have not been modified or altered by anyone other than Licensor or the third
party that has licensed the Products to the Licensee. This warranty shall be
void and shall not apply to Products in the event of modification without
Licensors written consent, accident, neglect, misuse, failure to maintain a
suitable operating environment, tampering, or any other event other than
ordinary use.
6.2 LICENSOR AND ANY THIRD PARTY FROM WHOM LICENSOR HAS LICENSED THE
PRODUCTS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS AND DOCUMENTATION.
6.3 LICENSOR AND ANY THIRD PARTY FROM WHOM LICENSOR HAS LICENSED THE
PRODUCTS WILL NOT BE LIABLE FOR LOST PROFITS, LOST OPPORTUNITIES, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR TORT DAMAGES ARISING OUT OF THIS
AGREEMENT, EVEN IF LICENSOR OR SUCH THIRD PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
6.4 LICENSEE'S EXCLUSIVE REMEDY AGAINST ANY PARTY FOR NONPERFORMANCE OF
THE WARRANTY SHALL BE LICENSOR'S CORRECTION OF ANY ERROR OR DEFECT IN THE
PRODUCT OF WHICH LICENSEE HAS GIVEN NOTICE TO LICENSOR OR AN EQUITABLE REFUND OF
THE AMOUNTS PAID TO LICENSOR HEREUNDER WHICH RELATE TO THE DEFECTIVE PRODUCTS.
IN NO CASE SHALL THE AGGREGATE AMOUNT OF DAMAGES PAYABLE TO LICENSEE FROM ANY
AND ALL PARTIES FOR ANY CLAIM ARISING FROM THE PRODUCTS OR THIS AGREEMENT
(INCLUDING,WITHOUT LIMITATION, ITS WARRANTY AND INDEMNIFICATIONPROVISIONS)
EXCEED THE AMOUNTS PAID BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT.
6.5 This section shall survive the expiration or termination of this
Agreement.
SECTION 7. TERMINATION; RIGHTS AND OBLIGATIONS UPON TERMINATION
6
7.1 Licensor may terminate this Agreement in the event Licensee commits
a material breach of any of its obligations concerning the scope of use or the
protection of the Products, Documentation, or Confidential Information.
7.2 Upon termination of this Agreement, Licensee's license to use the
Products shall terminate, and Licensee shall immediately turn over to Licensor
all copies of the Products, Documentation and any other Confidential Information
relating to the Products and Documentation, and Licensee shall provide evidence
to Licensor of having removed and erased completely any copies of the Products
installed or recorded on any hard disk or other storage medium at all Authorized
Locations (or new locations permitted by mutual written agreement under the
Agreement, as well as any other location(s) where it may be found). Licensee
shall return original magnetic media and Documentation provided by Licensor for
the Products and any and all later releases that have been made available to
Licensee.
7
EXHIBIT E
Approved sub-licensing terms for Hummingbird Technology
{Same terms as Exhibit D}
8
