LICENSE AGREEMENT
BETWEEN
ACCESS TO INFORMATION
AND
PAYSYS INTERNATIONAL INC.
ACCESS TO INFORMATION
000 Xxxxxxxxx Xxxx, Xxxx. 0
Xxxx Xxxxx, XX 00000
(000x000-0000
LICENSE AGREEMENT
DATE OF ISSUE: OCTOBER 1, 1996
This agreement is executed between the following parties:
ACCESS TO INFORMATION
000 XXXXXXXXX XXXX,
XXXXXXXX 0, XXXXX 000
XXXX XXXXX, XX 00000
LICENSOR
and
PAYSYS INTERNATIONAL INCORPORATED
000 XXXXXXXXX XXXXX, XXXXX 000
XXXXXXXX, XX 00000
LICENSEE
WHEREAS, LICENSOR has developed software topics useful for converting software
programs originally designed for operation in a CICS COBOL VSAM type environment
into a form suitable for operation on AS/400 type computer equipment, and
WHEREAS, LICENSEE has one or more programs which are designed for operation in a
CICS COBOL VSAM type environment, and desires to make use of the aforesaid
software tools to convert such programs to run on AS/400 type computer
equipment,
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein. and the performances thereof, LICENSOR and LICENSEE do hereby
agree to the following terms and conditions:
LICENSE GRANT, DELIVERY, PRICE & PAYMENT, TERM & TERMINATION
LICENSE GRANT. LICENSOR hereby grants the LICENSEE a non exclusive license to
use the software tools identified in Schedule A, attached hereto (hereinafter
referred to as licensed programs). for the sole purpose of converting programs
or systems developed or licensed by LICENSEE originally designed to run in a
CICS COBOL VSAM type environment. This license is a non-exclusive limited-site
license as identified and limited in Schedule A.
DELIVERY. Promptly on the delivery of each IBM AS/400 to be used for
conversion, LICENSOR shall deliver to LICENSEE one copy of each of the
licensed programs in object code format (machine executable). A copy
of the licensed programs. in source code format will be maintained in
escrow by LICENSOR'S escrow agent, Xxxxx & Xxxxxx, Attorneys at Law,
0000 Xxxxxx Xxxx, Xxx Xxxxx, XX 00000
Conditions for release of source code are:
a) LICENSOR, its successors or assigns, has to have been dissolved, OR
b) LICENSOR, its successors or assigns, fails to provide the required
control module referred to on Schedule B within 15 days of the receipt
of CPU placement charges (royalties) as required by Schedule B., OR
c) LICENSOR, its successors or assigns fails to supply support for 30
consecutive days.
PRICE AND PAYMENT. In consideration for this license, LICENSEE shall pay
to LICENSOR a one-time KIlCS400 License Fee of $60,000 and an annual Charge
of $15,000 for a Maintenance Support Module (optional). Also an additional
$5,000 is to be paid to the LICENSOR for each runtime requested by the
LICENSEE for installation of the converted system on a clients AS/400.
Amounts and discounts of said charges, fees and the Payment Schedule for
same shall conform to Schedule B attached hereto.
TERM AND TERMINATION. This license shall become effective upon execution
of this Agreement by LICENSOR and LICENSEE, and shall be perpetual, but
shall terminate:
A. Thirty (30) days after LICENSOR gives LICENSEE notice of LICENSEE's
material breach of any provision of this license, including thirty
(30) or more days delinquency in the LICENSEE's payment of any fees
due
hereunder, unless LICENSEE has cured the breach.
B. Immediately upon any attempt by LICENSEE to assign, delegate,
sublicense (except to CPUs as permitted), or otherwise transfer this
license, the license programs, the documentation thereof, or any of
its rights or obligations under this license in violation of the
agreement; or any attempt by LICENSEE to convert programs or systems
not developed or licensed by LICENSEE.
CONFIDENTIALITY
CONFIDENTIALITY. LICENSEE acknowledges that the licensed software, source
code and documentation is the property and trade secret of LICENSOR, and
that any publication or disclosure to third parties of such confidential
information may cause immediate and irreparable harm to LICENSOR. LICENSEE
acknowledges the right of LICENSOR to take reasonable steps to protect its
own proprietary and confidential information. Therefore, LICENSEE will
take all reasonable steps to maintain the confidentiality of the
confidential information.
A. LICENSEE shall not, without LICENSOR's prior written consent, disclose
or make available any of the confidential information in any form to
anyone, except to employees or consultants of LICENSEE whose access is
necessary for LICENSEE's permitted use of the licensed programs.
B. LICENSEE shall require any employee and consultant having such access
to agree to maintain the confidentiality of the confidential
information.
C. LICENSEE shall make only that number of copies of the software program
and documentation which are necessary under the conditions specified
in Schedule A attached hereto.
D. LICENSEE shall not permit any other person or organization to copy any
of the licensed conversion utility programs or documentation, except
for a single copy to be held off-site for standard disaster recover
support.
E. Upon termination of this license, LICENSEE shall immediately cease
using the license programs, and return the licensed software and
documentation to LICENSOR, and destroy all copies of such software and
documentation which are maintained in non-removable memory or storage.
Within one (1) month after termination of this license, LICENSEE shall
certify in writing to LICENSOR that to the best of LICENSEE's
knowledge, all copies of the software and documentation have been
returned or destroyed.
F. LICENSOR acknowledges that the source code, documentation, property,
and trade secrets of LICENSEE are invaluable and that any publication
or disclosure to third parties of such confidential information may
cause immediate and irreparable harm to LICENSEE.
G. LICENSOR will take reasonable steps to maintain the confidentiality of
the confidential information such steps being those taken by LICENSOR
to protect its own proprietary and confidential information.
H. LICENSOR shall not disclose or make available any confidential
information of the LICENSEE in any form to anyone, except to employees
or consultants of LICENSOR whose access is necessary to fulfill the
obligations of this agreement.
I. LICENSOR shall require any employee and consultant having such access
to agree to maintain the confidentiality of the confidential
information.
J. LICENSOR shall make only that number of copies of any source code
necessary to fulfill the obligations of this agreement. LICENSOR shall
not permit any other person or organization to copy any confidential
information of the LICENSEE.
K. Upon termination of this license, LICENSOR shall immediately return
confidential information to LICENSEE and destroy all copies of source
and object code which are maintained in non-removable memory or
storage. Within one (1) month after termination of this license,
LICENSOR shall certify in writing to LICENSEE, that all copies have
been destroyed.
WARRANTY
WARRANTY. Except as stated in this agreement, its schedules and addenda
LICENSOR grants no expressed or implied warranty on any of the software or
documentation.
A. LlCENSOR warrants that the licensed programs, as delivered, are in
good working order and free from defects in design, materials and
workmanship when used without material alteration in accordance with
the instructions included in the documentation.
B. LICENSOR warrants to LICENSEE that LICENSOR has the right to license
the programs ant software as provided in this Agreement. If notified
of any judicial action or other claim against LICENSEE based on an
allegation that LICENSEE's use of the licensed programs infringes a
United States patent or copyright, or any property rights of a third
party or constitutes a misuse or appropriation of a trade secret,
LICENSOR will defend or resolve such action or claim at its expense
and will pay the costs and damages award in any such action or the
cost of settling such action or claim. In the event that any licensed
program is, in LlCENSOR's opinion, likely to or does become the
subject of infringement of a patent or copyright or other proprietary
rights, LICENSOR may at its option and expense procure for LICENSEE
the right to continue using the licensed programs, modify the licensed
programs to make them non-infringing or substitute other materials of
similar capability in order that LICENSEE may enjoy uninterrupted use
of the licensed programs.
LIABILITIES, AGREEMENT DISCLOSURE, NOTICE, ASSIGNMENTS
LIMITATION Of LLIABILITY: In no event will LICENSOR be liable for any
lost profits, or any claim or demand for consequential damages even if
LICENSOR has been advised of the possibility of such damages.
LICENSOR shall provide LICENSEE with proper instruction and support, as
stated in the Educational Module and Support Module outlined in Schedule B,
attached hereto. However, LICENSEE shall be solely responsible for assuring
proper use of the licensed programs and documentation.
AGREEMENT DISCLOSURE. Neither party will disclose the terms and
conditions of this Agreement without the prior written consent of the other
party.
NOTICE: Any notice required or permitted by this Agreement shall be
sufficiently given when sent by registered or certified mail, and receipt
requested, postage prepaid, to the other party at the addresses shown on
page 1 of this Agreement.
ASSIGNMENTS: Neither party shall assign or transfer this Agreement
without the prior written consent of the other party, which consent shall
not be unreasonably withheld, provided that no consent shall be required if
such assignment or transfer arises solely from a merger or consolidation
involving a party under circumstances wherein the surviving party of such
merger or consolidation is a party hereto.
ARBITRATION
ARBITRATION: The parties agree to submit disputes between them relating
to this license and its formation, breach, performance, interpretation and
application to arbitration under the following terms and conditions:
A. LOCATION. Arbitration will be in Dupage County, Illinois, or any
other mutually acceptable location, administered by the American
Arbitration Association.
B. RULES & DISCOVERY. Arbitration will be under the Commercial
Arbitration Rules of the American Arbitration Association. Each party
will be entitled to discovery by requests for admission, by
depositions of no more than ten (10) individuals, but by no other
means.
C. ARBITRATORS. There will be three (3) arbitrators, and each will have
knowledge of and expedience in dealing with the computer software
industry.
D. TIME LIMITS. All discovery will be completed, and the arbitration
hearing will commence within ninety (90) days after appointment of the
arbitrators. Unless the arbitrators find that exceptional
circumstances justify delay, the hearing will be completed and an
award will be rendered in writing, within one-hundred twenty (120)
days after commencement of the hearing.
E. LANGUAGE. The arbitration will be conducted and all evidence will be
submitted to the arbitrators in the English language.
F. BINDING EFFECT. The award rendered in arbitration will be final and
binding and may be enforced in any court of competent jurisdiction.
G. COST AND ATTORNEY'S FEES. Unless the arbitrators find that
exceptional circumstances require otherwise, the arbitrators will
include in the award the prevailing party's costs of arbitration and
reasonable attorney's fees.
MISCELLANEOUS
12. MISCELLANEOUS.
A. CHOICE OF LAW. This license will be governed by and construed
according to the laws of the State of Illinois, without regard to
principles of conflicts of law.
B. AMENDMENT. This License may be amended or supplemented only by a
writing signed on behalf of both parties. No purchase order, invoice,
or similar document will amend this License, even if accepted by the
receiving party in writing.
C. WAIVER. No waiver will be implied from conduct or failure to enforce
rights. No waiver will be effective unless in a writing signed on
behalf of the party claimed to have waived.
D. CONTINGENCIES. Neither party will have the right to claim damages or
to terminate this License as a result of the other's failure or delay
in performance due to circumstances beyond its reasonable control,
such as labor disputes, strikes, lockouts, shortage of or inability to
obtain labor, fuel, raw materials or supplies, war, riot,
insurrection, epidemic, act of God, or governmental action not the
fault of the non-performing party.
E. SEVERABILITY. If any part of this Agreement is found invalid or
unenforceable, it will be enforced to the maximum extent permitted by
law, and other parts of this License will remain in force.
F. EQUITABLE RELIEF. Either party may have injunctive, preliminary or
other equitable relief to remedy any actual or threatened unauthorized
disclosure of confidential information or unauthorized disclosure of
confidential information or unauthorized use, copying, marketing,
distribution or sub-licensing of the software.
G. ENTIRE AGREEMENT. This document represents the entire agreement
between the parties relating to the pertinent programs and
documentation and supersedes all prior representations, discussions,
negotiations, and agreements, whether written or oral. This document
includes the Business Terms, Payment Terms, and other matters set
forth in Schedules A, B. and C, attached hereto.
H. NOTICES. All notices, reports, requests and other communications
required or permitted hereunder must be in writing. They will be
deemed given when (1) delivered, (ii) sent by telex with confirmation
by mail, (iii) sent by commercial overnight courier with written
verification of receipt, or (iv) scat by registered or certified mail,
postage prepaid in each case to the receiving party's Initial Address
for Notice set forth above or to any other address that the receiving
party may have provided for purposes of notice by notice hereunder.
I. ATTORNEYS FEES. In any suit to enforce this agreement, the prevailing
party will have the right to recover its costs and reasonable
attorney's fees and expenses, including cost, fees and expenses on
appeal.
J. RELATIONSHIP OF PARTIES. The parties to this License are independent
contractors. There is no relationship of partnership, agency,
employment, franchise or joint venture between the parties. Neither
party has the authority to bind the other or incur any obligation on
its behalf.
NON-HIRING
NON-HIRING. During the term of this Agreement and for a period of one (1)
year thereafter, neither party shall employ, or attempt to employ any
employee of the other, or induce or attempt to induce any employee to leave
the employ of the other.
SCHEDULE A STATEMENT OF PRODUCTS AND SERVICES
1) LlCENSOR will provide one (1) copy of the KIKS400 convention utility
(Licensed Programs) for the conversion of the Vision PLUS package, to be
installed at the address of LICENSEE stated on Page 1. The utility will be
installed on one IBM AS/400, as stated on Schedule B, attached hereto, for
which LICENSEE must provide the Serial Number(s).
2) LICENSEE will provide to LICENSOR, (30) days written notice prior to a
physical relocation of software and hardware, or replacement of hardware.
Replacement hardware is required to be primary support platform
SCHEDULE B CHARGES AND PAYMENT SCHEDULE
CHARGES:
KIKS TOOLBOX (LICENSED PROGRAMS) for Vision
PLUS conversion: $60,000.00 (For Model __)
KIKS EDUCATIONAL MODULE (See Note 1): $2,500.00 ( Per resource )
KIKS CONVERSION SUPPORT MODULES (See Note 2): $15,000.00 ( Per Year)
KIKS400 RUNTIME LIBRARY INSTALL (See Note 3):
PAYMENT DUE 30 DAYS AFTER INSTALLATION $5,000.00 ( Each )
EXTRA CPU CHARGES: (See Note 4): $7,500.00 (For Model___)
NOTES:
The (optional) Educational Module ($2,500 per resource) is a 5-day hands-on
instruction in conversion methodology. During the educational sessions,
Licensee resources submit programs for conversion and clean compile,
followed by unit testing Licensee resources also receive instruction in
JCL-to-AS/400-CL conversion. Education takes place at ATI. Education is
available at client site, when travel and related out-of-pocket expenses
for attending ATI resources is borne by Licensee. To be billed and decided
upon, under a separate document.
The Maintenance Module provides updates and support on an annual basis.
Information and support is supplied on standard KlKS400 conversion-related
issues and/or those enhancements made to the tool identified during the
conversion of the 150 online programs selected by the Licensee. The
Conversion support model is renewable annually, at the client's option.
CHARGES AND PAYMENT SCHEDULE (CONTINUED)
A. It grants unlimited technical phone support, during ATI standard
business hours, to Licensee resources pertaining to the functionality
embedded within that version of KIKS400.
B. It provides for electronic linkage between Licensee and Licensor CPUs.
Line Charges for this service must be done by Licensee.
C. It entitles the Licensee to any enhancements made to the base
Conversion Utility or its documentation.
This is a royalty charge for every additional AS/400 beyond the Destination
AS/400 on which the CLIENT locates converted code (i.e., on the AS/400s of
CLIENT'S customers).
This is an additional charge if the Licensee decides to locate the
conversion utility on multiple AS/400's for the conversion of the Vision
PLUS system
CHARGES TOTALS and DISCOUNTS cont.
1. $60,000.00 License
1. $15,000.00 Support, ONE YEAR
-----------
$75,000.00 Sub Total
1. -$30.000.00 Preferred customer discount for
multiple licenses
1. -$5,000.00 Discount as long as the
----------- maintenance on the CardPac
system is in force
$40,000.00 Total license cost and first
year's maintenance
SCHEDULE of PAYMENT
$ 30,000.00 with signed License agreement
$10,000.00 100% due upon signing of one
years maintenance agreement
THIS LICENSE OFFER EXPIRES 30 DAYS AFTER DATE OF ISSUE.
SIGNATURES OF AGREEMENT PARTIES:
FOR LlCENSOR:
Signature: /s/ Xxxx Paolollo
--------------------------------
Name: Xxxx Paolollo
--------------------------------
Title: Senior Vice President
--------------------------------
Date: September 30, 1996
--------------------------------
FOR LICENSEE:
Signature: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
--------------------------------
Title: Controller / Assistant Secretary
---------------------------------
Date: October 1, 1996
--------------------------------
