1
EXHIBIT 10.109
DAYBREAK - THE BIG PICTURES(TM)
MASTER LICENSE AGREEMENT
THIS MASTER LICENSE AGREEMENT (the "AGREEMENT") is entered into this
twenty second day of December, 1999, by and between SUPERSOLUTIONS CORPORATION,
a Minnesota corporation ("SUPERSOLUTIONS") and ONYX ACCEPTANCE CORPORATION, a
Delaware corporation ("LICENSEE").
WITNESSETH:
WHEREAS, SuperSolutions has developed at great expense and over a long
period of time a configuration of software and related documentation; and
WHEREAS, SuperSolutions and Licensee desire to enter into an agreement
involving the licensing by SuperSolutions of certain software and systems to
Licensee;
NOW, THEREFORE, for and in consideration of the premises and the mutual
promises, covenants and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned, desiring to be legally bound, hereby agree as
follows:
SECTION 1
DEFINITIONS
For purposes of this Agreement, the following terms shall be defined as
follows:
(a) "DOCUMENTATION" shall mean and include the SuperSolutions' manuals
delivered to Licensee which explain or teach the use or operation of the System
(as defined below).
(b) "BASIC HARDWARE SYSTEM" shall consist of that certain basic
configuration of machinery and equipment required to operate the System as more
fully described on the attached EXHIBIT A, incorporated herein by this
reference.
(c) "LICENSEE" shall include the party listed as Licensee in the first
paragraph of this Agreement, as well as all successors, affiliates or assigns.
(d) "SUPERSOLUTIONS" shall include SuperSolutions and any predecessors,
successors, affiliates or assigns.
(e) "MEDIA" includes the media upon which the Software is delivered to
Licensee.
(f) "OFFICE" shall mean and include the location of Licensee set forth
in the applicable Software License Schedule attached hereto and incorporated
herein by this reference, where Licensee's designated central processing unit
(the "DESIGNATED SERVER/CPU") is located, which is the sole location where the
Software may be used. Licensee may transfer the Software from the Designated
Server/CPU to a backup Server/CPU when the Designated Server/CPU is temporarily
inoperable, until operable status is restored to the Designated Server/CPU.
Licensee may also, with notice to SuperSolutions, (i) designate a new or
additional Office or Offices, and (ii) store the Software at an alternative
location as part of a disaster recovery plan.
(g) "PERSON" OR "PERSONS" includes any individuals, firms, corporations,
partnerships, joint ventures, trusts, associations, agencies, governmental
bodies or other entities.
2
(h) "SOFTWARE" shall include the software licensed to Licensee by
SuperSolutions hereunder which is set forth in a Software License Schedule from
time to time as agreed to by the parties.
(i) "SOFTWARE LICENSE SCHEDULES" shall mean the schedules attached
hereto from time to time, and hereby made a part hereof, which describe the
specific Daybreak - The Big Picture (TM) software being licensed by
SuperSolutions to Licensee. Each Software License Schedule hereto incorporates
all of the terms and conditions of this Agreement and shall contain such
additional terms and conditions as the parties agree upon for the Software.
Q) "SYSTEM" shall be defined as the collective configuration of the
Software and the Documentation licensed to Licensee pursuant to this Agreement.
SECTION 2.
LICENSE OF THE SOFTWARE AND THE DOCUMENTATION
SuperSolutions hereby grants to Licensee, and Licensee hereby accepts
from SuperSolutions, a perpetual, private, transferable, nonsublicenseable and
non-exclusive license, in object form only, to use the Software for the
legitimate and legal business purposes of Licensee, all pursuant and subject to
the terms and conditions set forth in this Agreement. This license is restricted
to the internal use by Licensee of the Software, and Licensee may not sell,
assign, sublicense or otherwise transfer the Software or use it to provide
services to others, with the exception of (i) providing services for liquidating
portfolios and (ii) a sale, assignment, or transfer in connection with a sale or
transfer of all, or substantially all, of Licensee's stock and/or assets.
Licensee may not, directly or indirectly, solicit, market or provide or perform
service bureau processing, any form of host processing services or similar type
services or act as an application service provider utilizing the Software, with
the exception of providing such services for liquidating portfolios. Licensee
may, directly or indirectly, provide any type of products or services utilizing
the Software through or involving the Internet or a similar or competing
computer network. The Software may be utilized by an unlimited number of
end-users of Licensee.
ESCROW OF SOURCE CODE
SuperSolutions certifies that it has deposited a copy of the source code of the
Software and all related documentation necessary to install, operate and
maintain the Software and System with: an escrow agent that is mutually agreed
upon by Licensee and SuperSolutions.
Such source code and documentation will be promptly updated with the escrow
agent following substantial changes or modifications to the source code or
documentation. Such copies of the source code and documentation will be held in
escrow and in the event of adjudication of SuperSolutions as bankrupt, or upon
failure, refusal or other inability of SuperSolutions to provide maintenance
services to Licensee in a commercially practicable manner and as required under
this Agreement or another agreement, Licensee will, upon notice to the escrow
agent and payment of the duplication cost and other handling charges of the
escrow agent, be entitled to obtain a copy of such source code and documentation
from the escrow agent. Thereafter, Licensee shall continue to enjoy its license
to use the Software and System as permitted under this Agreement and the
applicable Software License Schedule, and may utilize the source code to perform
maintenance on the Software. Licensee shall be entitled at its own cost to
periodically audit the escrowed source code and documentation to ensure
SuperSolutions' compliance with this Section.
This Section is separate from Licensee's ability to purchase the source code and
related documentation in accordance with Software License Schedule No. 001.
However, if SuperSolutions fails to deliver the source code and related
documentation after payment by Licensee of the agreed cost shown in such
Software License Schedule, then Licensee may obtain the source code and related
documentation from the escrow agent.
2
3
SECTION 3.
DESIGN AND APPROVAL SPECIFICATIONS
Licensee acknowledges that SuperSolutions has developed comprehensive
application programs, packages, and documentation contained in the System which
includes existing Daybreak functionality in addition to the Gap Analysis
functionality described in the Onyx Gap Analysis in EXHIBIT B attached hereto
and incorporated herein by this reference (the "SPECIFICATIONS").
SECTION 4.
TRAINING
SuperSolutions shall perform training pursuant to the terms set forth in
the applicable Software License Schedule. Licensee and SuperSolutions shall
mutually agree upon the manner in which Licensee's employees shall be trained in
the methodology, operation and use of the System as well as the length of
training for each of those employees (the "TRAINING"). All Training shall take
place at such locations as Licensee and SuperSolutions shall agree upon, and
Training shall be conducted by SuperSolutions personnel as determined by
SuperSolutions.
SECTION 5.
DELIVERY OF THE SOFTWARE AND THE DOCUMENTATION
(a) As soon as reasonably possible after receipt of the initial license
fee installment as set forth in the Software License Schedule, SuperSolutions
shall deliver the Software and Documentation to Licensee for installation as set
forth in a Software License Schedule. Licensee shall acknowledge receipt of the
Software and Documentation in writing.
(b) SuperSolutions shall retain title to the Software (including any
enhancements, modifications or alterations), all rights of Licensee in and to
the Software being expressly limited to the license granted under this
Agreement. Licensee shall not alter or remove any copyright or proprietary
rights markings or other identification on the Software or any component thereof
indicating SuperSolutions' ownership.
(c) A copy of this Agreement, once executed, may also be filed with such
appropriate officials or offices as SuperSolutions shall deem necessary or
appropriate to evidence the interests in the Software, the Documentation and the
System retained by SuperSolutions and those rights granted to Licensee.
(d) Notwithstanding anything herein to the contrary, as between
SuperSolutions and Licensee, ownership of the System, the Software and the
Documentation shall at all times be and remain vested in SuperSolutions, and as
a result, Licensee agrees to grant, execute and deliver to SuperSolutions any
and all instruments, writings, documents and evidences of ownership, security
and other interests retained by SuperSolutions in the license granted to
Licensee hereunder, which SuperSolutions shall in its reasonable discretion deem
reasonably necessary or appropriate from time to time.
SECTION 6.
TESTING AND ACCEPTANCE
(a) SuperSolutions shall make the Software available to Licensee for
review and use to permit Licensee to verify that the Software meets the
Specifications. This review period ("Review Period") will terminate on the
thirtieth (30th) day after live production date by Licensee.
(b) Licensee may discontinue the license with respect to any specific
Software License Schedule if SuperSolutions receives written notice to such
effect during the Review Period for such Software
3
4
License Schedule, and all obligations of the parties under such Software License
Schedule will terminate and Licensee will receive a refund of fifty (50) percent
of all monies paid with respect to such Software License Schedule. The Software
shall be deemed accepted unless SuperSolutions receives written notice of
rejection prior to the expiration of the Review Period.
SECTION 7.
TERM
(a) This Agreement shall continue indefinitely unless terminated in
accordance with its provisions.
(b) Each Software license granted under this Agreement shall commence
upon acceptance of the Software by Licensee and shall continue in perpetuity
unless sooner terminated in accordance with the provisions of this Agreement.
SECTION 8.
LICENSE AND OTHER FEES
(a) Licensee shall pay SuperSolutions in accordance with the payment
schedule corresponding to each Software License Schedule.
(b) Invoices shall identify such charges as may be payable under this
Agreement for products, services and other items supplied in the performance of
this Agreement. Invoices submitted by SuperSolutions are due and payable fifteen
(15) days after receipt. Invoices not paid when due shall be subject to an
interest charge at the prime rate as established by Citibank, N.A., plus two
percent (2%).
(c) All reasonable air fare, lodging, transportation, telecommunications
and related out-of-pocket expenses incurred by SuperSolutions and any of its
employees, officers, agents or independent contractors in connection with their
performance under this Agreement, including all other costs and expenses in
connection with the transporting, operating, repairing and disconnecting of the
System, shall be paid by Licensee. SuperSolutions will provide the necessary
resources to meet the timeliness of the development schedule. Travel related
expenses will not exceed $20,000 per month without prior written approval of
Licensee and will be in accordance with Licensee's standard travel policies.
SuperSolutions employees and contractors shall perform services at Licensee's
location as reasonably requested by Licensee.
(d) In addition to any other right or remedy available to
SuperSolutions, if Licensee fails to timely make any payment or reimbursement of
any sum due SuperSolutions hereunder after any applicable cure periods,
SuperSolutions shall have the option, in its reasonable discretion, to
immediately and without any notice, cease performing any duty, obligation or
work for or on behalf of Licensee until such time as Licensee shall bring itself
current on all sums owed SuperSolutions, including any applicable penalty or
late charge.
(e) In addition to all fees, expenses or sums due SuperSolutions
pursuant to this Agreement, Licensee shall remain liable for and shall pay on a
timely basis an amount equal to all assessments, fees, duties, charges,
penalties, interest, withholdings or taxes (whether sales, use, excise, personal
property or otherwise) paid, payable or required to be collected or paid by
SuperSolutions or Licensee, which are levied or based on or as a result of the
licensing of the System, the Software and the Documentation or this Agreement,
except gross income or franchise taxes of SuperSolutions arising out of this
Agreement or out of the licensing of the System, the Software, and the
Documentation.
4
5
SECTION 9.
WARRANTIES AND DISCLAIMERS
(a) SuperSolutions warrants to Licensee that, for ninety (90) days from
the date of delivery thereof to Licensee, all Media delivered to Licensee shall
be free from defects in materials and workmanship under normal use, conditions
and service, and all Software will conform to the Specifications; provided,
however, that if Licensee shall have modified (without SuperSolutions' written
approval), damaged or abused the Software or Media in any way, the foregoing
warranty shall be NULL AND VOID, notwithstanding anything herein to the
contrary. If during this ninety (90) day period a defect should appear in any
such Media, or the Software shall not conform to the Specifications, Licensee's
sole and exclusive remedy is to return such defective Media or Software and
satisfactory proof of its delivery date to SuperSolutions, and SuperSolutions'
sole responsibility thereafter shall be to replace such defective Media or
Software without charge; provided, however, that SuperSolutions may, in its sole
discretion, refuse to honor any warranty claim if the defect on the Media or
Software alleged to be defective has resulted from accident, abuse or misuse.
(b) SuperSolutions shall have no responsibility with respect to errors
in the Software occurring in whole or in substantial part by reason of: (i)
Licensee modifications WITHOUT WRITTEN APPROVAL by SuperSolutions; (ii)
Licensee's negligence or misuse of the Software; (iii) computer equipment
malfunction; or (iv) any other causes external to the Software not arising by
reason of the fault or negligence of SuperSolutions.
(c) EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN SECTION 9 HEREOF, THE
SOFTWARE, THE DOCUMENTATION, THE SYSTEM AND THE MEDIA ARE PROVIDED "AS IS", AND
THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE,
WITH RESPECT TO THE SOFTWARE, THE DOCUMENTATION, THE SYSTEM, THE MEDIA OR ANY OF
THEM. NOR DOES SUPERSOLUTIONS WARRANT THAT THE FUNCTIONS CONTAINED IN ANY PART
OF THE SYSTEM WILL MEET LICENSEE'S, ANY CUSTOMER'S OR ANY OTHER PERSON'S
REQUIREMENTS OR THAT THE USE AND OPERATION OF THE SYSTEM WILL BE UNINTERRUPTED
OR ERROR-FREE.
(d) SUPERSOLUTIONS SHALL NOT HAVE ANY LIABILITY TO LICENSEE OR ANY OTHER
PERSON FOR ANY CLAIM, LOSS OR DAMAGE OF ANY KIND OR NATURE, ARISING OUT OF OR IN
CONNECTION WITH: ANY LOSS OF PROFITS, SALES, BUSINESS OR OTHER CONSEQUENTIAL OR
SPECIAL LOSS OR DAMAGE OF ANY KIND OR NATURE.
(e) SUPERSOLUTIONS DISCLAIMS ANY WARRANTY OR REPRESENTATION THAT THE
SOFTWARE COMPLIES WITH ANY REQUIREMENTS OF LAW APPLICABLE TO THE CONSUMER
LENDING BUSINESS RELATED TO LICENSEE OR ITS CUSTOMERS.
SECTION 10.
CONFIDENTIALITY
(a) Licensee acknowledges that the System disclosed and tendered
pursuant to this Agreement, including, without limitation, the source and object
code of the Software, consists of commercially valuable trade secrets and
proprietary products of SuperSolutions, the development of which has involved
the expenditure of substantial amounts of time and money and the use of skilled
persons. Licensee acknowledges that the System contains and is confidential and
proprietary trade secret information of SuperSolutions, as between
SuperSolutions and Licensee, disclosed to Licensee on a confidential basis, to
be used only as may be expressly permitted by the terms and conditions of this
Agreement.
5
6
(b) Each party hereby covenants and agrees that during the term of this
Agreement and for all times thereafter, it shall not, without the express prior
written consent of the other party, publish, disclose, divulge, sell, assign,
give or otherwise transfer or release any confidential and proprietary trade
secret information of the other party or the System, in whole or in part, alone
or in combination with any other information to any Person, or entity, or for
its own benefit or the benefit of any Person or entity, except as required with
respect to Licensee's operation of its business or of the System in accordance
with this Agreement.
(c) Each party hereby covenants and agrees that during the term of this
Agreement and for all times thereafter it shall require all of its employees,
agents and independent contractors who shall have any access to the System or
any confidential and proprietary trade secret information of the other party, to
abide by the terms and conditions of this Agreement, and each party shall
further be responsible and indemnify the other party for any and all costs,
expenses, losses, injuries or damages suffered by the other party as a result of
the breach, threatened breach or violation of the terms of this Agreement,
including, without limitation, this Section 10, committed or performed by such
party or any employee, agent or independent contractor of such party.
SECTION 11.
OWNERSHIP OF THE SYSTEM AND COPYING THEREOF
(a) During the term of this Agreement and for all times thereafter, as
between SuperSolutions and Licensee, SuperSolutions shall retain sole title to,
copyright in and full ownership of the System and all parts thereof, including,
without limitation the Software and the Documentation, SuperSolutions being the
exclusive owner thereof and of all rights therein, whether or not any portion
thereof is or may be validly copyrighted, patented or similarly protected.
(b) Until and unless the source code and related documentation is
purchased or otherwise received by Licensee in accordance with the terms of this
Agreement, neither the System nor any portion thereof may be amended, used to
create derivative works, modified, copied, decoded, decompiled, reprinted,
duplicated, translated, adapted, altered or recreated, directly or indirectly,
in whole or in part, alone or in combination with any data processing system or
software or otherwise, without the express prior written consent of
SuperSolutions, which consent may be withheld in SuperSolutions' reasonable
discretion; nor may the System, or any part thereof, be used for any purpose
other than the legitimate business purposes of Licensee for which it was
intended, unless otherwise permitted in writing by SuperSolutions under the
terms of this Agreement.
SECTION 12.
CARE OF THE SYSTEM
(a) Licensee shall at all times throughout the term of this Agreement
keep the System in its sole possession and control and shall not transfer or
move the System, or any part thereof, from the Office without prior notice to
SuperSolutions.
(b) Upon any termination of the applicable Software License Schedule,
Licensee shall, at its expense, return each and every copy of every portion of
the System, including, without limitations all of Licensee's notes, memoranda,
tape cartridges, or other writings containing parts of the System, to
SuperSolutions at the location designated by SuperSolutions, in the same
operating order, repair, condition and appearance as of the date hereof,
reasonable wear and tear excepted.
(c) The System shall at all times remain the property of SuperSolutions,
who may affix decals or notices thereto or thereon to indicate SuperSolutions'
ownership thereof. Licensee shall not permit removal or concealment of any such
decals or notices, or allow or take any action which would tend to
6
7
diminish or eliminate SuperSolutions' ownership, security or other interest in
or proof of ownership of the System.
(d) Licensee shall immediate notify SuperSolutions of all details
concerning any loss, theft, damage or destruction to all or any part of the
System. Except as may be otherwise provided for herein, all risks of loss,
theft, damage or destruction to the System or any part thereof, however incurred
or occasioned, shall be borne by Licensee, unless arising from or related to the
actions or inaction of SuperSolutions.
(e) If any items of the System are rendered unusable as a result of any
physical damage or destruction, Licensee shall give to SuperSolutions immediate
notice thereof and this Agreement shall continue in full force and effect,
except as hereinafter set forth. Licensee shall be responsible to SuperSolutions
for any cost incurred by SuperSolutions or any sums which must be expended to
repair or replace the damaged or destroyed portion of the System, unless arising
from or related to the actions or inaction of SuperSolutions.
(f) Licensee shall use the System in a careful and proper manner, shall
comply with and conform to all governmental laws, rules and regulations relating
thereto, and shall cause the System to be operated in accordance with the
manufacturer's or supplier's instructions, manuals, and the Documentation.
(g) Licensee acknowledges that the System, including, without limitation
the Software and the Documentation, is subject or will be subject to various
copyrights or patents or both and trade secret protection, and Licensee hereby
agrees to undertake no action which shall in any manner reduce, diminish,
eliminate or jeopardize the effect and enforceability of the copyrights or
patents or both owned or licensed by SuperSolutions or SuperSolutions' trade
secret protection therein.
(h) Licensee further acknowledges that the names and marks "Daybreak -
The Big Picture" and "Daybreak," and other names and marks used by
SuperSolutions from time to time are trade names, trademarks or service marks of
SuperSolutions, whether registered or not, and are owned and licensed by
SuperSolutions, and Licensee shall not undertake any actions which shall in any
manner reduce, diminish, eliminate, jeopardize or effect the enforceability or
ownership interest of SuperSolutions in such names and marks.
SECTION 13.
REPRESENTATIONS AND WARRANTIES
In order to induce each other to enter into this Agreement and for
SuperSolutions to license the Software, the Documentation and the System to
Licensee hereunder, each party hereby represents and warrants to the other that:
(a) It is duly organized and validly existing and in good standing under
the laws of the state of its formation;
(b) It, and the individuals executing this Agreement on its behalf, have
full power, authority and the legal right to execute, deliver and perform all
provisions of this Agreement, and the execution, delivery and performance hereof
has been duly authorized by all necessary action and constitutes a legal, valid
and fully binding obligation enforceable against it in accordance with its own
terms;
(c) The execution, delivery and performance of this Agreement has been
consented to and authorized by all Persons required to consent and authorize and
will not contravene any law, regulation, judgment or decree applicable to it or
will not cause a breach of or default in any other agreement, contract or
understanding to which it is a party;
7
8
(d) It shall operate its business and take all reasonable actions
necessary to ensure all employees, agents and independent contractors perform
any and all actions necessary to fully comply with this Agreement; and
(e) It shall comply with and ensure the compliance of all of its
employees, agents and independent contractors with all of the confidentiality
provisions hereof, including, without limitation, Section 10 hereof, throughout
the term of this Agreement, and after any expiration or termination of the term
hereof.
SECTION 14.
MAINTENANCE
The parties shall execute the SuperSolutions Corporation Daybreak - The
Big Picture (TM) Service Level Agreement ("Service Level Agreement") attached
hereto as EXHIBIT C.
SECTION 15.
REMEDIES, DAMAGES, INJUNCTIONS AND SPECIFIC PERFORMANCE
(a) It is expressly understood and agreed by the parties that many of
the covenants and agreements of each party and its employees, agents or
independent contractors pursuant to this Agreement shall survive any termination
of this Agreement, are special, unique and of extraordinary character, and in
addition to all remedies provided for elsewhere herein in the event of the
occurrence of any default or breach hereunder by a party or any of its
employees, agents, or independent contractors of any term, provision, section,
or paragraph of this Agreement to be performed by such party or any of its
employees, agents or independent contractors, the non-defaulting party shall be
entitled, if it so elects, to institute and prosecute proceedings in any court
of competent jurisdiction, either at law or in equity, and shall be entitled to
such relief as may be available to it at law or in equity, including injunctive
relief and specific performance.
(b) Without limiting the generality of the foregoing, Licensee hereby
expressly acknowledges that upon the occurrence of any "Default" (as defined in
Section 17(a) hereof) or "Event of Default" (as defined in Section 17(b)
hereof), SuperSolutions shall be entitled to maintain any proceedings to: (i)
obtain damages for any Default of this Agreement; (ii) recover the entirety of
the license fee; (iii) order the specific performance by Licensee or its
employees, agents or independent contractors; or (iv) obtain preliminary
injunctive relief, permanent injunctive relief or both, as well as an equitable
accounting of all profits and benefits arising out of such violation or Event of
Default; all of which above rights and remedies shall be cumulative and in
addition to any other rights or remedies to which SuperSolutions may be
entitled.
SECTION 16.
INDEMNITY
(a) Licensee shall indemnify and hold SuperSolutions harmless from any
and all liabilities, losses, damages, expenses, legal or otherwise, causes of
action, suits, claims or judgments arising from injury or loss to any Person,
property or business or loss of income resulting from or based upon the actual
or alleged use or operation of the System, or any portion thereof, by Licensee,
and Licensee shall at its own cost and expense, defend any and all suits or
other actions which may be brought against SuperSolutions, either alone or in
conjunction with others upon such claim or claims and shall satisfy, pay and
discharge all judgments, costs and fines that may be recovered against
SuperSolutions in any such suit or other actions. Any expense, including all
reasonable attorneys' fees, which SuperSolutions may pay or incur in defending
any such suits or other actions, as well as any judgments, costs, penalties,
8
9
damages and fines in any such suits or other actions which shall be paid by
SuperSolutions shall be immediately repaid to SuperSolutions by Licensee.
(b) Provided that Licensee notifies SuperSolutions promptly in writing
of any such action or claim, and SuperSolutions may fully participate in or take
over the exclusive defense of and decisions regarding any settlement of any such
action or claim, SuperSolutions agrees to defend, at its expense, actions
properly brought against Licensee to the extent that such actions contend that
the Software used by Licensee within the scope of the license granted hereunder
infringes an enforceable United States copyright or an enforceable United States
patent; provided that any such actions are not the result of the actions or
omissions of Licensee other than the use and possession of the Software pursuant
to this Agreement; and, notwithstanding any limitations on liability stated
herein, SuperSolutions will pay any damages finally awarded against Licensee in
any such action which are attributable to such claim. If the Software becomes,
or in SuperSolutions' opinion is likely to become, the subject of a claim of
infringement of an enforceable United States copyright or an enforceable United
States patent, SuperSolutions may: (i) procure for Licensee the right to
continue using the Software; or (ii) replace or modify the Software to make it
non-infringing or (iii) refund the entire license fee and related license costs.
Notwithstanding the foregoing or anything herein to the contrary,
SuperSolutions' indemnity obligations set forth in this Section 16(b) shall
immediately be terminated and voided and SuperSolutions shall have no liability
for any claim of copyright or patent infringement or otherwise with respect to
the Software if Licensee makes or permits to be made any modifications to the
Software, without written approval of SuperSolutions, or misuses or abuses the
Software, or uses the Software other than as permitted herein.
SECTION 17.
DEFAULTS AND EVENTS OF DEFAULT
(a) Any one or more of the following events shall constitute a "Default"
under this Agreement:
(i) Licensee shall fail to make on a timely basis or delay in
making any payment of any fees, amounts or other sums owing to
SuperSolutions as such fees, amounts or other sums shall become due and
owing to SuperSolutions; or
(ii) Licensee or any of its employees, agents or independent
contractors shall breach, default in the performance of or fail to
perform or observe any material duty, obligation or other covenant,
condition or agreement to be performed or observed by it or them with
respect to this Agreement, or any other agreement between the parties
hereto; or
(iii) Any material covenant, agreement, representation or
warranty made by Licensee herein or in any document, certificate or
financial or other statement hereafter furnished by Licensee to
SuperSolutions in connection with this Agreement or any other agreement
between the parties hereto shall prove at any time to have been untrue,
false or misleading in any material respect as of the time when made to
the best of Licensee's knowledge and belief after due inquiry.
(b) Any of the following events shall constitute an "Event of Default"
under this Agreement:
(i) The failure of Licensee to cure any Default pursuant to
Section 17(a)(i) hereof within five (5) days from the date Licensee
receives written notice of any such Default; or
(ii) The failure of Licensee to cure any Default pursuant to
Section 17(a)(ii) or 17(a)(iii) hereof within thirty (30) days from the
date Licensee receives written notice of any such Default.
9
10
SECTION 18.
REMEDIES
(a) If any Event of Default shall occur hereunder, SuperSolutions may,
at its option, at any time thereafter without notice, do any one or more of the
following with respect to this Agreement and the System, or any part thereof, as
SuperSolutions in its sole discretion shall elect:
(i) SuperSolutions may enter upon any premises of Licensee and
the Office and any other location where the System, or any part thereof,
is located and render inoperative the System, or any part thereof, all
without liability for or by reason of such entry or taking of
possession; or
(ii) SuperSolutions may exercise any other right or remedy which
may be available to it pursuant to this Agreement or any other agreement
between the parties hereto or under applicable law, or proceed by
appropriate court action to enforce the terms hereof or to recover
damages for the breach hereof.
(b) In addition to Sections 18(a)(i), through (ii) hereof, Licensee
shall be liable for any and all unpaid rents, fees, sums and all other amounts
due SuperSolutions before or during the exercise of any of the foregoing
remedies and for all reasonable legal fees and other costs and expenses incurred
by reason of the occurrence of any Event of Default or the exercise of
SuperSolutions' remedies with respect thereto.
(c) No remedy referred to in this Section 18 or elsewhere in this
Agreement is intended to be exclusive, but each shall be cumulative and in
addition to any other remedy referred to herein or otherwise available to either
party at law or in equity, and the exercise or beginning of exercise by either
party of any one or more of such remedies shall not preclude the simultaneous or
later exercise by either party of any or all such other remedies. No express or
implied waiver by SuperSolutions of an Event of Default shall in any way be, or
be construed to be, a waiver of any future or subsequent Event of Default.
(d) In any legal or other proceedings arising from or related to this
Agreement, the prevailing party shall be awarded its reasonable attorney fees
and costs incurred.
SECTION 19.
NOTICES
(a) All notices, demands and other communications required or permitted
to be given hereunder shall be in writing, and shall be deemed to have been
given upon the earlier of receipt or five (5) days after mailing in the United
States mail, first class postage prepaid, certified mail, return receipt
requested, addressed as follows or to such other address as any of the following
entities may from time to time designate in writing to the other entity listed
below:
(i) SuperSolutions:
SuperSolutions Corporation
00000 Xxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxxx, XX 00000-0000
Attn: President
10
11
(i) Licensee:
Onyx Acceptance Corporation
00000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxx Xxxxx, XX 00000
Attn: President
With a copy Attn: General Counsel
SECTION 20.
MISCELLANEOUS
(a) Any section of this Agreement which is prohibited or unenforceable
shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining sections hereof or portions thereof. To the
extent permitted by applicable law, both parties hereby waive any provision of
law which renders any section hereof prohibited or unenforceable in any respect.
(b) This Agreement may not be amended orally, but only by an instrument
in writing signed by the party against which the enforcement of the change,
waiver, discharge or amendment is sought. No delay or failure on the part of
either party to exercise any power or right hereunder shall operate as a waiver
thereof, nor as an acquiescence in any default, nor shall any single or partial
exercise of any power or right preclude any other or further exercise thereof,
or the exercise of any other power or right.
(c) This Agreement, including all Exhibits hereto and all Software
License Schedules, contains the full, final and exclusive statement of the
agreement between SuperSolutions and Licensee relating to the license of the
Software, the Documentation and the System and all other matters set forth
herein and supersedes all other oral and written understandings to the contrary.
(d) This Agreement and the covenants and agreements contained herein
shall be binding upon, and inure to the benefit of each party and its respective
successors and assigns. Licensee may not assign its rights in and to this
Agreement, the Software or any Software License Schedule without prior written
notice to SuperSolutions.
(e) The headings of the sections in this Agreement are for the
convenience of reference only, are not a part of this Agreement and shall not be
deemed to affect the meaning or construction of any of the provisions hereof.
(f) This Agreement may be executed by the parties hereto in any number
of separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute but one and the
same instrument.
(g) This Agreement shall be interpreted and construed, and the legal
relationships created hereby shall be construed in accordance with the laws of
the State of Minnesota, without regard to conflicts of law provisions. Licensee
hereby (i) agrees that any litigation, action or proceeding arising out of or
relating to this Agreement shall be instituted in any state or federal court
only in Minneapolis, Minnesota, (ii) waives any objection which it might have
now or hereafter to the venue of any such litigation, action or proceeding,
(iii) irrevocably submits to the jurisdiction of any such court in any such
litigation, action or proceeding, and (iv) waives any claim or defense of
inconvenient forum. Licensee hereby consents to service of process by registered
mail, return receipt requested, at such party's address and expressly waives the
benefit of any contrary provision of foreign law.
(h) Notwithstanding anything herein to the contrary, the entirety of
Sections 1, 9, 10, 11, 12, 13, 15, 16, 17, 18 and 20 shall survive any
termination hereof.
11
12
(i) Should a provision of this Agreement require interpretation, it is
agreed that the court, individual, agency or entity interpreting or construing
this Agreement shall not apply the assumption that the terms hereof shall be
more strictly construed against the party preparing this Agreement, it being
agreed that both parties hereto have participated in the preparation of this
Agreement.
(j) Each party agrees to submit to each other for review and approval
prior to issuance, publication, or dissemination any publications,
advertisement, press releases or other materials that may use or display the
trade names, trademarks, or otherwise identify either party, and no such
publication, advertisements, press releases or other materials shall be issued,
published, or disseminated without prior review and written approval.
(k) SuperSolutions and Licensee each agree that, until the earlier of
one year after the termination of this Agreement or one year after an employee's
or independent contractor's termination of employment or contract, neither it
nor any of its subsidiaries or affiliates shall, except with the prior written
consent of the other, offer employment to or employ or contract with any person
employed or contracted by the other or any subsidiary or affiliate of the other
if such person was involved directly or indirectly in the use or implementation
of the System by Licensee.
(l) No Third Party Beneficiaries. Nothing herein expressed or implied is
intended or shall be construed as conferring upon or giving to any person, firm
or corporation other than the parties hereto any rights or benefits under or by
reason of this Agreement, other than MBIA Insurance Corporation or another
financial insurer of Licensee.
12
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly authorized, executed and delivered under the seal as of the day and year
first above written.
"LICENSOR"
SUPERSOLUTIONS CORPORATION
By /s/ [SIGNATURE ILLEGIBLE]
---------------------------------------
Title President 12/23/99
----------------------------------
"LICENSEE"
ONYX ACCEPTANCE CORPORATION
By /s/ XXXX X. XXXXXXX
---------------------------------------
Title SVP, CIO 12/30/99
----------------------------------
13
14
EXHIBIT A
BASIC HARDWARE SYSTEM
TO BE DETERMINED BY LICENSEE.
14
15
EXHIBIT B
SPECIFICATIONS
SEE ATTACHED LOAN SERVICING AND COLLECTION SERVICES GAP ANALYSIS
15
16
EXHIBIT C
SERVICE LEVEL AGREEMENT
SEE ATTACHED.
16
