Exhibit 10.10
SYSTEM SOFTWARE LICENSE AGREEMENT
THIS SYSTEM SOFTWARE LICENSE AGREEMENT is effective as of this _____
DAY of ______________, 19___ and is entered into between Transformation
Processing Inc. ("TPI"), a corporation having its principal place of business at
the address set forth below, and _________________ (the "User") having a place
of business at the address set forth below.
RECITALS
A. The User has certain software libraries which execute on the computer
system described in Schedule "A" (the "Original System").
B. The User's software libraries have been converted (the "Converted
Software") using theTransform/3X technology licensed by TPI so that they
will execute under UNIX on the computer system described under Schedule "B"
(the "Target UNIX System").
C. The Converted Software will only execute on the Target UNIX System if it is
executed in conjunction with certain function support software (the "System
Software") and a hardware key (the "Key") to be provided by TPI.
D. The execution of this license agreement is a condition of TPI providing the
User with the System Software and Key.
THE PARTIES HERETO AGREE AS FOLLOWS:
1. DELIVERY OF SYSTEM PRODUCT: Upon the execution of this agreement and
payment to TPI of the initial fee described below, TPI will provide the
User with a copy of the System Software, a Key which enables one copy of
the System Software to execute on the Target UNIX System and a copy of the
documentation (the "Documentation") made available by TPI for use by
licensed users of the System Software. In this agreement, the System
Software, Key and Documentation are collectively referred to as the "System
Product". The User may only use the System Product on the terms and
conditions contained in this agreement and so long as the license granted
under this agreement is in force.
2. LICENSE: TPI grants to the User, and the User accepts, a personal,
non-transferable and non-exclusive right to use the System Product, subject
to the terms of this agreement. The User may (a) use the System Product
only on a single Target UNIX System, (b) modify those functions of the
System Software delivered by TPI to the User in source code, and (c) copy
the System Software into any machine readable form for back-up purposes
only. Title to the System Product, including copyright and other property
rights therein, will not pass to the User. The User does not acquire any
interest or right in or to the System Product, except the right to use and
copy the same strictly in accordance with the provisions of this agreement.
The User agrees to reproduce any copyright, trade-xxxx, ownership,
confidentiality or other similar notices contained on the System Product on
any copy of the System Product.
3. RESTRICTIONS: The User may only use the System Product so long as this
license is in force. The User shall not (a) rent, lease, loan or distribute
the System Product, (b) reverse engineer, decompile or disassemble the
System Software or Key, (c) use, copy, modify, merge or transfer the System
Product,
--------------------------------------------------------------------------------
SYSTEM LICENSE 1 TRANSFORMATION PROCESSING INC.
or any copy thereof, in whole or in part, except as expressly provided in
this agreement. The User acknowledges and agrees that the System Product
and license are restricted to the execution of software which previously
executed on the Original System and which was converted using the
Transform/3X technology to execute on the Target UNIX System. This license
is restricted to the use of the System Product in conjunction with that
number of concurrent system users on the Target UNIX System described in
Schedule "B". If the User wishes to upgrade this license to permit the use
of the System Product in conjunction with a larger number of concurrent
system users or on a system other than the Target UNIX System, TPI will
upgrade this license upon payment of TPI's upgrade fee and execution of
such supplementary license agreement as TPI may require. Any upgrade of
this license to include a system other than the Target UNIX System is
subject to the availability of appropriate porting and other software
necessary to achieve such upgrade. It may also be necessary for the User to
obtain a license from the owner of the software which previously executed
on the Original System to execute the Converted Software on the Target UNIX
System.
4. SUPPORT: If the User encounters problems in using the System Product, TPI
recommends that the User first contact the party which converted the
Converted Software. In most cases, that party is in the best position to
identify the problem and provide a solution. For problems related to the
System Product which are not solved by the party which provided the
conversion services, the User may use the telephone support services
provided by TPI. This support service will provide advice and assistance
concerning the use of the System Product. This support service is provided
free of charge during the first 90 days following delivery of the System
Product to the User. After 90 days, the User will be charged at the then
applicable hourly rate for advice or assistance which, in the opinion of
TPI, would not have been required by the User had the User referred to the
Documentation or operated the System Product in accordance with the
Documentation. The User is expected to be familiar with UNIX and TPI may
charge the User for any support services (whether during the first 90 days
or otherwise) which arise out of the User's misunderstanding of the UNIX
system which the User is using. The support services will be provided by
telephone (with long distance charges payable by the User) during regular
business hours of the TPI office providing the support services. The
support services will be provided only on the condition that the User has a
modem and that, upon request by TPI, the User allows TPI to log on by modem
to the User s computer and have access to the Converted Software and System
Software which is experiencing the problem and any additional information
or software which TPI may reasonably request. There is no assurance that
TPI will be able to detect or correct any defect or programming error in
the System Product encountered by the User.
The User shall have access to TPI's System Product bulletin board and TPI
shall send technical bulletins to the User at the same time as such
bulletins are sent to other users of the System Product generally. If TPI
updates the System Product to correct any defect in the System Product, TPI
will send a copy of the updated release to the User, free of charge, at the
same time as TPI supplies the same to its other users generally. The User
agrees to install and use the updated release when received and destroy
all but the immediately preceding release of the System Product. Updated
releases of the System Product shall not include enhancements to the System
Product and TPI may charge a fee for any enhanced version of the System
Product offered to the User. TPI shall be under no obligation to provide
support services to the User when there are overdue payments owing by the
User to TPI or in relation to problems caused by modifications to the
System Software made by any party other than TPI. Any services provided by
TPI with respect to problems caused by such modifications will be charged
at the applicable hourly rate of TPI.
5. LICENSES FEES: The User agrees to pay to TPI the initial fee and the
annual fees described in Schedule "C" as the same become due under this
agreement. The initial fee is payable upon execution of this agreement and
the annual fees are payable on each anniversary of the date of this
agreement.
6. CURRENCY, TAXES AND PAYMENT TERMS: All references in this agreement to
dollars are expressed in United States currency except where otherwise
noted and all amounts payable to TPI shall be paid in United States
dollars. The fees payable under this agreement do not include any taxes or
duties which,
--------------------------------------------------------------------------------
SYSTEM LICENSE 2 TRANSFORMATION PROCESSING INC.
if applicable, will be billed in addition to the fees and shall be payable
by the User upon invoice. All amounts owing under this agreement which are
not paid when due shall bear interest at the lesser of the highest rate
permitted at law and the Prime Rate plus 2% per annum until paid in full.
The Prime Rate shall mean the prime commercial lending rate of interest per
annum charged from time to time during the currency of this agreement by
the Bank of Montreal (the "Bank") for demand loans in United States funds
made at the main branch of the Bank in Toronto, Ontario (and if at any time
there is more than one such prime commercial lending rate of the Bank, the
Prime Rate shall be the highest prime commercial lending rate of the Bank).
7. CONFIDENTIALITY: The User acknowledges that the System Product and the
whole of the ideas, concepts, know-how and techniques contained therein
(collectively the "Confidential Information") are trade secrets which
required substantial efforts to create and develop. The User agrees not to
use the Confidential Information except as permitted under this agreement.
The User agrees to hold the Confidential Information in confidence with the
same degree of care it uses with its own confidential information (using at
least a reasonable standard of care) and not to disclose such Confidential
Information in any form whatsoever except to those of its employees and
subcontractors who have a need to use the same in the normal course of
their work and who have agreed to abide by the provisions of this
agreement.
8. DISCLAIMER OF WARRANTY: THE SYSTEM PRODUCT IS PROVIDED "AS IS" AND
WITHOUT WARRANTY OF ANY KIND. TPI DISCLAIMS ALL WARRANTIES, EITHER EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THE WARRANTY
AGAINST LATENT DEFECTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
TPI MAKES NO WARRANTY: (A) WITH RESPECT TO THE CHARACTERISTICS OF
EXECUTION OF THE DEVELOPMENT PRODUCT (INCLUDING RESPONSE TIME,
CHARACTERISTICS OF USE OF MACHINE TIME AND OTHER OPERATING FUNCTIONS WITH
ANY PARTICULAR EQUIPMENT), (B) THAT THE FUNCTIONS CONTAINED IN THE
DEVELOPMENT PRODUCT WILL SATISFY THE NEEDS OF THE DEVELOPER , (C) THAT THE
OPERATION OF THE DEVELOPMENT PRODUCT WILL BE ERROR FREE OR UNINTERRUPTED,
OR (D) THAT DEFECTS AND PROGRAMMING ERRORS IN THE DEVELOPMENT PRODUCT WILL
BE DETECTED OR CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN
BY TPI OR A TPI REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY
INCREASE THE SCOPE OF THIS WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY.
9. LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE,
SHALL TPI OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OR DAMAGE WHATSOEVER THAT
RESULTS FROM THE USE OF OR INABILITY TO USE THE DEVELOPMENT PRODUCT,
INCLUDING, WITHOUT LIMITATION, DAMAGAES FOR LOSS OF REVENUE OR PROFITS,
BUSINESS INTERRUPTION, LOSS OF SOFTWARE OR INFORMATION, FAILURE TO REALIZE
EXPECTED SAVINGS OR ANY OTHER PECUNIARY LOSS OF ANY NATURE WHATSOEVER
INCLUDING INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF TPI OR A TPI
REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SAME. SOME
JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABLILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION
MAY NOT APPLY. In no event shall the total liability of TPI to the
Developer for all damages, losses, and causes of action under any legal
theory (including, without limitation, contract, fundamental breach or
breach of a fundamental term, tort or negligence) exceed the amounts paid
by the Developer to TPI under this agreement during the year preceding the
making of the claim.
10. RESPONSIBILITY OF USER: The User is the only party responsible for the use
of the System Product for the User's activities. The User agrees to use
the necessary verification controls and operating techniques to satisfy its
needs with respect to error detection, security, back-up and restart in
case of failure or destruction of the User's software, the System Product
or any of the User's files and data. TPI strongly recommends that the User
test the System Product before operation with the User's software and data.
--------------------------------------------------------------------------------
SYSTEM LICENSE 3 TRANSFORMATION PROCESSING INC.
11. INDEMNIFICATION BY USER: The User agrees to defend TPI against any action,
suit or claim against TPI by any third party resulting from the use of, or
inability to use, the System product by the User and the User agrees to
indemnify and hold TPI harmless from and against all damages, liabilities,
losses and expenses, including reasonable attorney's fees and all court
costs, incurred by TPI as a result of any such action, suit or claim.
12. TERM: This agreement and the license granted hereunder shall come into
force upon execution of this agreement and payment of the initial fee and
shall remain in force until this agreement is terminated. The User may
terminate this agreement at any time by discontinuing any further use of
the System Product and returning to TPI all copies of the System Product.
TPI shall be entitled to terminate this agreement by giving written notice
of termination if the User fails to pay any amount owing under this
agreement or fails to abide by any of the terms of this agreement and such
failure continues for ten (10) days after written notice to remedy such
failure is given. This agreement will automatically terminate without
notice if the User becomes bankrupt or insolvent, or makes an assignment
for the benefit of its creditors, or if a liquidation order is made against
the User or if the User takes advantage of any statute relating to
insolvency, bankruptcy, or arrangements with creditors. Upon termination of
this agreement, the User shall cease all further use of the System Product
and return to TPI all copies of the System Product in its possession or
control. Instead of such return, TPI may, at its option, require the User
to destroy such copies and provide TPI with satisfactory evidence of such
destruction. Those provisions of this agreement which by their nature are
intended to survive the termination of this agreement (including, without
limitation, sections 8, 9 and 11) shall survive the termination of this
agreement.
13. U.S GOVERNMENT RESTRICTED RIGHTS: This section applies if the System
Product is licensed to the U.S government or one of its agencies or
instrumentalities:
"The System Product and Documentation are provided with RESTRICTED RIGHTS.
Use, duplication or disclosure by the U.S. Government is subject to
restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in
Technical Data and Computer Software clause at DFARS 252.227-7013 or
subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted
Rights at 48 CFR 52.227-19, as applicable. The contractor/manufacturer is
Transformation Processing Inc., 0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0"
14. NOTICE: Any notice required or permitted under this agreement shall be
given to the address for notice set out below or to such other address of
which notice is given. Such notice may be given by personal delivery
(including courier delivery), prepaid mail or telecopy. Such notice shall
be considered received on the date of actual receipt at the address for
notice.
15. ASSIGNMENT: The license granted by this agreement extends only to the User
and not to any other person, firm, partnership, corporation or other
entity, even if such may constitute a subsidiary or an affiliate of the
User. This agreement can only be assigned with the prior written consent of
TPI and upon the conditions stipulated by TPI.
16. OTHER TERMS: This agreement sets forth the entire understanding between
the parties relating to the subject matter hereof, and there are no
agreements, promises, representations or understandings between the parties
other than as set forth herein. No amendment or modification of this
agreement shall be effective unless in writing and signed by the parties to
this agreement. No term, covenant or condition of this agreement shall be
deemed to have been waived by either party to this agreement unless such
waiver is in writing, and then such waiver shall only to the specific
event or circumstance described in such waiver. This agreement shall be
governed by the laws in force at the User's address for notice set forth
below. The section headings in this agreement are for convenience of
reference and do not affect the meaning of sections. This agreement shall
enure to the benefit of, and be binding
--------------------------------------------------------------------------------
SYSTEM LICENSE 4 TRANSFORMATION PROCESSING INC.
upon, the parties hereto and their respective legal personal
representatives, successors and permitted assigns.
17. LANGUAGE: The parties hereto have requested that this agreement be drafted
in English. Les parties aux presentes ont exige que le present contrat soit
redige en langue anglaise.
In witness whereof the parties have signed this agreement as of the date
stated on page 1 hereof by their officers duly authorized as they so declare.
________________________________ TRANSFORMATION PROCESSING INC.
Full Legal Name of Customer
By: /s/ By: /s/ Xxxx XxXxxx
_____________________________ _____________________________
_______________________________ Xxxx XxXxxx
Name of Signing Officer President & C.O.O.
_______________________________
Title
_______________________________
User's Address for Notice: TPI's Address for Notice:
_______________________________ 0000 Xxxxxxxx Xxxx, Xxxxx 000
_______________________________ Mississauga, Ontario
_______________________________ Canada L5N 2X4
_______________________________
TELEPHONE: ________________ TELEPHONE: (000) 000-0000
TELECOPIER: ________________ TELECOPIER: (000) 000-0000
SYSTEM LICENSE
SCHEDULE "A"
ORIGINAL SYSTEM
--------------------------------------------------------------------------------
SYSTEM LICENSE 5 TRANSFORMATION PROCESSING INC.
A. COMPUTER. The Converted Software originally ran on the following computer:
IBM System 34 / / IBM System 36 /X/ IBM System 38 / / IBM AS/400 / /
B. LANGUAGE. The Converted Software was originally written in the following
language:
RPG II /X/ RPG III / / RPG 400 / / OCL / / CL / / COBOL /X/
SCHEDULE "B"
TARGET UNIX SYSTEM
A. COMPUTER The Converted Software is to be run on the following computer:
Make: ______________
Model: ______________
B. OPERATING SYSTEM The computer described above operated with the following
operating system:
Operating System: _______________
C. CONCURRENT SYSTEM USERS The computer will be operated with the following
number of concurrent System Users:
Number of Concurrent System Users: _____________
SCHEDULE "C"
FEES AND TERMS OF PAYMENT
Based on the information in Schedule "A" and "B", the initial fee and
annual fees payable for the license to use the System Product granted under this
agreement are as follows. Amounts are expressed in the United States currency.
INITIAL FEE: a non-recurring initial license fee of US $_______________. The
initial fee shall be paid by the User prior to delivery to the
User of the System Product.
ANNUAL FEES: On each anniversary of the date of this agreement (the
"Anniversary Date"), the User shall pay an annual license fee to
TPI equal to 18% of the published initial fee chargeable by TPI
on the Anniversary Date for the granting of a license to use the
System Product in the circumstances described in Schedules "A"
and "B" (subject to adjustment in the case of any change in the
number of concurrent system users over that described in section
C of Schedule "B").
The initial fee and annual fees do not include any taxes or duties which, if
applicable, will be billed to the User in addition to the initial fee and the
annual fee.
--------------------------------------------------------------------------------
SYSTEM LICENSE 6 TRANSFORMATION PROCESSING INC.
