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EXHIBIT 10.11
SOFTWARE ESCROW AGREEMENT
This Escrow Agreement ("Agreement") is made as of this 18th day of
February, 2000, by and between Summus, Ltd. ("Licensor"), Fort Xxxx Escrow
Services, Inc. ("Fort Xxxx") and High Speed Net Solutions, Inc. ("Licensee").
PRELIMINARY STATEMENT. Licensor and Licensee have entered into a
Software License Agreement and Software Maintenance Agreement, both dated
February 18, 2000 (together, the "License Documents"), pursuant to which
Licensee has rights to receive Licensor's MaxxSystem software product, including
New Versions as defined in the License Documents (all together, the "Licensed
Software"). Licensor intends to deliver to Fort Xxxx a sealed package containing
magnetic tapes, disks, disk packs, or other forms of media, in machine readable
form, and the written documentation prepared in connection therewith, containing
the source code of the Licensed Software (the "Deposit Materials"). Licensor
desires Fort Xxxx to hold the Deposit Materials, and, upon certain events,
deliver the Deposit Materials to Licensee, in accordance with the terms hereof.
Now, therefore, in consideration of the foregoing, of the mutual
promises hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. DELIVERY BY LICENSOR. Within thirty (30) days of each delivery of
each new object code version of Licensed Software to Licensee, Licensor shall
provide to Fort Xxxx a new set of Deposit Materials containing the complete
source code for the then current version of Licensed Software provided to
Licensee under the License Documents, together with a copy of Exhibit B to this
Agreement, completed with a description of the Deposit Materials. Each set of
Deposit Materials shall contain commented source code, proprietary Summus tools
and lists of any commercially available products required to compile the source
code, and all information in human-readable form and on suitable media to enable
a reasonably skilled programmer or analyst to understand, maintain and correct
the Licensed Software without the assistance of any other person. Licensor shall
be solely responsible for delivering to Fort Xxxx the Deposit Materials. Fort
Xxxx shall hold the Deposit Materials in accordance with the terms hereof. Fort
Xxxx shall have no obligation to verify the completeness or accuracy of the
Deposit Materials.
2. DUPLICATION. Fort Xxxx may duplicate the Deposit Materials by any
means in order to comply with the terms and provisions of this Agreement,
provided that Licensee shall bear the expense of duplication. Alternatively,
Fort Xxxx, by notice to Licensor, may require Licensor to reasonably promptly
duplicate the Deposit Materials.
3. NOTIFICATION OF DEPOSITS. Simultaneous with the delivery to Fort
Xxxx of each set of Deposit Materials, Licensor shall deliver to Fort Xxxx and
to Licensee a written statement specifically identifying all items deposited and
stating that the Deposit, so deposited have been inspected by Licensor and are
complete and accurate.
4. DELIVERY BY FORT XXXX
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4.1 DELIVERY BY FORT XXXX TO LICENSEE. Fort Xxxx shall deliver
the Deposit Materials, or a copy thereof, to Licensee only in the event that:
(a) Licensor notifies Fort Xxxx to effect such
delivery to Licensee at a specific address, the notification being accompanied
by a check payable to Fort Xxxx in the amount of one hundred dollars ($100.00);
or
(b) Fort Xxxx receives from Licensee:
(i) written notification that Licensor
has failed in a material respect to
support the Licensed Software as
required by the License Documents
or that Licensor has otherwise
defaulted in a material respect
under the License Documents
("Licensor Default") and any
applicable cure period under the
License Documents has expired;
(ii) evidence satisfactory to Fort Xxxx
that Licensee has previously
notified Licensor of such Licensor
Default in writing;
(iii) a written demand that the Deposit
Materials be released and delivered
to Licensee;
(iv) a written undertaking from the
Licensee that the Deposit Materials
being supplied to the Licensee will
be used only as permitted under the
terms of the License Agreement;
(v) specific instructions from the
Licensee for this delivery; and
(vi) a check payable to Fort Xxxx in the
amount of one hundred dollars
($100.00).
(c) If the provisions of paragraphs 4.1(a) or 4.1(b)
are satisfied, and Fort Xxxx does not receive an Objection Notice within the
Objection Period pursuant to paragraph (d) below, Fort Xxxx shall, within five
(5) business days after receipt of the notification and check specified in
paragraph 4.1(a) and expiration of the Objection Period, deliver the Deposit
Materials in accordance with the applicable instructions. Fort Xxxx shall not
release the Deposit Materials if it receives an Objection Notice within the
Objection Period absent a court order, final order of arbitration or joint
written instructions of the Licensor and Licensee.
(d) Fort Xxxx shall, within five (5) business days
after receipt of all the documents specified in paragraph 4.1(b), send by
certified mail to Licensor a photostatic copy of all such documents. Licensor
shall have fifteen (15) days from the date on which Licensor receives such
documents ("Objection Period") to notify Fort Xxxx of its objection ("Objection
Notice") to the proposed release of the Deposit Materials to Licensee and to
request that the issue of Licensee's entitlement to a copy of the Deposit
Materials be submitted to arbitration in accordance with the following
provisions:
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(i) If Licensor shall send an Objection
Notice to Fort Xxxx during the
Objection Period, the matter shall
be submitted to, and settled by
arbitration by, a panel of three
(3) arbitrators chosen by the
Atlanta Regional Office of the
American Arbitration Association in
accordance with the rules of the
American Arbitration Association.
The arbitrators shall apply Georgia
law. At least one (1) arbitrator
shall be reasonably familiar with
the computer software industry. The
decision of the arbitrators shall
be binding and conclusive on all
parties involved, and judgment upon
their decision may be entered in a
court of competent jurisdiction.
All costs of the arbitration
incurred by Fort Xxxx, including
reasonable attorneys' fees and
costs, shall be paid by the party
which does not prevail in the
arbitration; provided, however, if
the arbitration is settled prior to
a decision by the arbitrators, the
Licensor and Licensee shall each
pay 50% of all such costs.
(ii) The parties shall proceed in good
faith and with all due speed to
complete arbitration within one
month of the receipt by Fort Xxxx
of the Objection Notice. The
arbitrators shall have authority to
reasonably alter the arbitration
rules to achieve that goal. There
shall be no discovery, except as
directed by the arbitrators, and
the period for oral arguments shall
be limited to two days.
(iii) Licensor may, at any time prior to
the commencement of arbitration
proceedings, notify Fort Xxxx that
Licensor has withdrawn the
Objection Notice.
(e) Upon receipt of the Deposit Materials, Licensee
may use the Deposit Materials solely for the purpose of maintaining the Licensed
Software. The Deposit Materials will be considered confidential information of
Licensor to be treated by Licensee in accordance with the confidentiality
provisions of the License Documents.
(f) Both Licensor and Licensee agree that Fort Xxxx
shall not be required to deliver Deposit Materials until all such fees then due
Fort Xxxx have been paid.
4.2 DELIVERY BY FORT XXXX TO LICENSOR. Fort Xxxx shal release
and deliver the Deposit Materials to Licensor upon termination of this Agreement
in accordance with paragraph 7(a) hereof.
5. INDEMNITY. Licensor and Licensee shall, jointly and severally,
indemnify and hold harmless Fort Xxxx and each of its directors, officers,
agents, employees and stockholders ("Fort Xxxx Indemnities") absolutely and
forever, from and against any and all claims, actions, damages, suits,
liabilities, obligations, costs, fees, charges, and any other expenses
whatsoever, including reasonable attorneys' fees and costs, that may be asserted
against any Fort Xxxx Indemnitee in connection with this Agreement or the
performance of Fort Xxxx or any Fort Xxxx Indemnitee hereunder.
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6. DISPUTES AND INTERPLEADER.
(a) Fort Xxxx may submit any matter in an interpleader or
similar action other than a matter submitted to arbitration after Fort Xxxx'x
receipt of an Objection Notice under Section 4 and the parties under this
Agreement submit the matter to such arbitration as described in Section 4 of
this Agreement. Any and all costs incurred by Fort Xxxx in connection therewith,
including reasonable attorneys' fees and costs, shall be borne 50% by each of
Licensor and Licensee.
(b) Fort Xxxx shall perform any acts ordered by any court of
competent jurisdiction, without any liability or obligation to any party
hereunder by reason of such act.
7. TERM AND RENEWAL.
(a) The term of this Agreement shall be coincident and
coterminous with the License Documents. [This Agreement shall be automatically
extended for an additional term of one year ("Additional Term") at the end of
the Initial Term and at the end of each Additional Term hereunder unless, on or
before ninety (90) days prior to the end of the Initial Term or an Additional
Term, as the case may be, any party notifies the other parties that it wishes to
terminate the Agreement at the end of such term.] At such time of termination,
all fees due under this Agreement to Fort Xxxx must be paid prior to
termination.
(b) In the event of termination of this Agreement in
accordance with paragraph 7(a) hereof, Licensee shall pay all fees due Fort Xxxx
and shall promptly notify Licensor that this Agreement has been terminated and
that Fort Xxxx shall return to Licensor all copies of the Deposit Materials then
in its possession.
8. FEES. Licensor and Licensee shall pay to Fort Xxxx the applicable
fees in accordance with Exhibit A as compensation for Fort Xxxx'x services under
this Agreement. The first years fees are due upon receipt of the signed contract
or Deposit Materials, whichever comes first and shall be paid in U.S. Dollars.
(a) PAYMENT. Fort Xxxx shall issue an invoice to Licensee
following execution of this Agreement ("Initial Invoice"), on the commencement
of any Additional Term hereunder, and in connection with the performance of any
additional services hereunder. Payment is due upon receipt of invoice,
irrespective of when the Deposit Materials are received. All fees and charges
are exclusive of, and Licensee is responsible for the payment of, all sales, use
and like taxes. Fort Xxxx shall have no obligations under this Agreement until
the Initial Invoice has been paid in full by Licensee.
(b) NONPAYMENT. In the event of non-payment of any fees or
charges invoiced by Fort Xxxx, Fort Xxxx shall give notice of non-payment of any
fee due and payable hereunder to the Licensee and, in such an event, the
Licensee shall have the right to pay the unpaid fee within ten (10) days after
receipt of notice from Fort Xxxx. If Licensee fails to pay in full all fees due
during such ten (10) day period, Fort Xxxx shall give notice of non-payment of
any fee due and payable hereunder to Licensor and, in such event, Licensor shall
have the right to pay the unpaid fee within ten (10) days of receipt of such
notice from Fort Xxxx. Upon payment of the unpaid fee by either the Licensor or
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Licensee, as the case may be, this Agreement shall continue in full force
and effect until the end of the applicable term. Failure to pay the unpaid fee
under this paragraph 8(b) by both Licensor and Licensee shall result in
termination of this Agreement.
9. OWNERSHIP OF DEPOSIT MATERIALS. The parties recognize and
acknowledge that ownership of the Deposit Materials shall remain with Licensor
at all times.
10. AVAILABLE VERIFICATION SERVICES. Upon receipt of a written request
from Licensee, Fort Xxxx and Licensee may enter into a separate agreement
pursuant to which Fort Xxxx will agree, upon certain terms and conditions, to
inspect the Deposit Materials for the purpose of verifying its relevance,
completeness, currency, accuracy and functionality ("Technical Verification
Agreement"). Upon written request from Licensor, Fort Xxxx will issue to
Licensor a copy of any written technical verification report rendered in
connection with such engagement. If Fort Xxxx and Licensee enter into such
Technical Verification Agreement, Licensor shall reasonably cooperate with Fort
Xxxx by providing its facilities, computer systems, and technical and support
personnel for technical verification whenever reasonably necessary. If requested
by Licensee, Licensor shall permit one employee of Licensee to be present at
Licensor's facility during any such verification of the Deposit Materials.
11. BANKRUPTCY. Licensor and Licensee acknowledge that this Agreement
is an "agreement supplementary to" the License Agreement as provided in Section
365 (n) of Xxxxx 00, Xxxxxx Xxxxxx Code (the "Bankruptcy Code"). Licensor
acknowledges that if Licensor as a debtor in possession or a trustee in
Bankruptcy in a case under the Bankruptcy Code rejects the License Agreement or
this Agreement, Licensee may elect to retain its rights under the License
Agreement and this Agreement as provided in Section 365 (n) of the Bankruptcy
Code. Upon written request of Licensee to Licensor or the Bankruptcy Trustee,
Licensor or such Bankruptcy Trustee shall not interfere with the rights of
Licensee as provided in the License Agreement and this Agreement, including the
right to obtain the Deposit Material from Fort Xxxx.
12. MISCELLANEOUS.
(a) REMEDIES. Except for intentional misrepresentation, gross
negligence or intentional misconduct, Fort Xxxx shall not be liable to Licensor
or to Licensee for any act, or failure to act, by Fort Xxxx in connection with
this Agreement. Any liability of Fort Xxxx regardless of the cause shall be
limited to the fees exchanged under this Agreement. Fort Xxxx will not be liable
for special, indirect, incidental or consequential damages hereunder.
(b) NATURAL DEGENERATION; UPDATED VERSION. In addition, the
parties acknowledge that as a result of the passage of time alone, the Deposit
Materials are susceptible to loss of quality ("Natural Degeneration"). It is
further acknowledged that Fort Xxxx shall have no liability or responsibility to
any person or entity for any Natural Degeneration. For the purpose of reducing
the risk of Natural Degeneration, Licensor shall deliver to Fort Xxxx a new copy
of the Deposit Materials at least once every three years.
(c) PERMITTED RELIANCE AND ABSTENTION. Fort Xxxx may rely and
shall be fully protected in acting or refraining from acting upon any notice or
other document believed by Fort Xxxx in good faith to be genuine and to have
been signed or presented by the proper person or entity. Fort Xxxx shall have no
duties or responsibilities except those expressly set forth herein.
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(d) INDEPENDENT CONTRACTOR. Fort Xxxx is a independent
contractor, and is not an employee or agent of either the Licensor or Licensee.
(e) AMENDMENTS. This Agreement shall not be modified or
amended except by another agreement in writing executed by the parties hereto.
(f) ENTIRE AGREEMENT. This Agreement, including all exhibits
hereto, supersedes all prior discussions, understandings and agreements between
the parties with respect to the matters contained herein, and constitutes the
entire agreement between the parties with respect to the matters contemplated
herein. All exhibits attached hereto are by this reference made a part of this
Agreement and are incorporated herein.
(g) COUNTERPARTS; GOVERNING LAW. This Agreement may be
executed in counterparts, each of which when so executed shall be deemed to be
an original and all of which when taken together shall constitute one and the
same Agreement. This Agreement shall be construed and enforced in accordance
with the laws of the State of Georgia.
(h) CONFIDENTIALITY. Fort Xxxx will hold and release the
Deposit Materials only in accordance with the terms and conditions hereof, and
will maintain the confidentiality of the Deposit Materials.
(i) NOTICES. All notices, requests, demands or other
communications required or permitted to be given or made under this Agreement
shall be in writing and shall be delivered by hand or by commercial overnight
delivery service which provides for evidence of receipt, or mailed by certified
mail, return receipt requested, postage prepaid. If delivered personally or by
commercial overnight delivery service, the date on which the notice, request,
instruction or document is delivered shall be the date on which delivery is
deemed to be made, and if delivered by mail, the date on which such notice,
request, instruction or document is received shall be the date on which delivery
is deemed to be made. Any party may change its address for the purpose of this
Agreement by notice in writing to the other parties as provided herein.
(j) SURVIVAL. Paragraphs 5, 6, 8, 9 and 11 shall survive any
termination of this Agreement.
(k) NO WAIVER. No failure on the part of any party hereto to
exercise, and no delay in exercising any right, power or single or partial
exercise of any right, power or remedy by any party will preclude any other or
further exercise thereof or the exercise of any other right, power or remedy. No
express waiver or assent by any party hereto to any breach of or default in any
term or condition of this Agreement shall constitute a waiver of or an assent to
any succeeding breach of or default in the same or any other term or condition
hereof.
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IN WITNESS WHEREOF each of the parties has caused its duly authorized
officer to execute this Agreement as of the date and year first above written.
Fort Xxxx Escrow Services, Inc.
0000 Xxxxxxxx Xxxx. Xxxxx 000 Phone Number 0 000-000-0000
Xxxxxxxx, Xxxxxxx 00000 Fax Number 000-000-0000
Attn: Xxxxx Xxxxxx
By: /s/ Xxxxx Xxxxx
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Print Name: Xxxxx Xxxxx Title: Account Executive
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Licensor
By: /s/ Xxxxx Xxxxxxx
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Print Name: Xx. Xxxxx Xxxxxxx Title: Chairman of Summus
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Address: 000 Xxxxxxxxxxxx Xxxxxx Mall
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Suite 600
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Xxxxxxx, XX 00000
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Phone: 000-000-0000 Fax: 000-000-0000
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Licensee
By: /s/ Xxxxxx Xxx
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Print Name: Xxxx Xxx Title: EVP & Acting CEO
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Address: 000 Xxxxxxxxxxxx Xxxxxx Mall
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Suite 2120
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Xxxxxxx, XX 00000
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Phone: 000-000-0000 Fax: 000-000-0000
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EXHIBIT A
FEE SCHEDULE
Fees to be paid by Licensee shall be as follows:
Initialization fee (one time only) $ 850
($765 for current clients)
Annual maintenance fee
includes two Deposit Material updates $ 1000 product
includes one cubic foot of storage space
International (outside of U.S.) - $ 1000/product
Additional Updates $ 150
(above two per year)
Additional Storage Space $ 150/cubic foot
Payable by Licensee or Licensor:
Due Upon Licensee's or Licensor's
Request for Release of Deposit Materials $100 for initial 2 hrs
$50/hour for
additional hours
A ten percent discount is credited towards the initialization fee for current
Fort Xxxx clients. Fees due upon receipt of signed contract or Deposit Material,
whichever comes first and shall be paid in U.S. Dollars. The renewal date for
this Agreement will occur on the anniversary of the first invoice. Thereafter,
fees shall be subject to their current pricing, provided that such prices shall
not increase by more than 10% per year.
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EXHIBIT B
B1. Product Name: ___________________________________________________
Version #:_______________________________________________________
Prepared and Confirmed by: ______________________________________________
Title: _________________________________________ Date: _______________
Signature: _______________________________________________________________
Type of deposit:
____ Initial Deposit
____ Update Deposit to replace current deposits
____ Other (please describe)____________________________
ITEMS DEPOSITED:
Quantity Media Type Description of Material
A) ___________ ____________ _____________________________________
B) ___________ ____________ ____________________________________
C) __________ ____________ ____________________________________
B2. Product Name: ____________________________________________________
Version #: _______________________________________________________
Prepared and Confirmed by: _______________________________________________
Title: _________________________________________ Date: ________________
Signature: _______________________________________________________________
Type of deposit:
____ Initial Deposit
____ Update Deposit to replace current deposits
____ Other (please describe) ___________________________
ITEMS DEPOSITED:
Quantity Media Type Description of Material
A) ___________ ____________ ___________________________________
B) ___________ ____________ ___________________________________
C) ___________ ____________ ___________________________________
(please copy page as necessary)
