EXHIBIT 10.13
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SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT ("Agreement") is entered into as of
this 17th day of October, 1996 (the "Effective Date") between Ryder Truck
Rental, Inc., a Florida corporation with its principal place of business at 0000
X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000 (hereinafter "Ryder") and Ryder TRS, Inc.
(f/k/a RCTR Holdings, Inc.), a Delaware corporation with its principal place of
business at 0000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000 (hereinafter "TRS").
TRS and Ryder are at times referred to herein individually as a "Party" and
collectively, as the "Parties".
WHEREAS, Ryder and TRS are parties to an Asset and Stock Purchase
Agreement dated September 19, 1996 (the "Asset Purchase Agreement") under which
TRS is purchasing from Ryder certain assets and businesses of Ryder's Consumer
Truck Rental division ("Division") and under which the Parties have agreed
that: (i) TRS will be granted a license to use, pursuant to the terms and
conditions set forth herein, certain computer software and related documentation
currently used by Ryder, and (ii) Ryder will be granted a license to use,
pursuant to the terms and conditions set forth herein, certain computer software
and related documentation transferred from Ryder to TRS under the Asset Purchase
Agreement.
NOW, THEREFORE, in consideration of the rights and obligations set
forth herein and in the Asset Purchase Agreement, the adequacy of which is
hereby acknowledged, the Parties agree as follows:
1 Definitions. The following terms, when used in this Agreement with initial
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capital letters, shall have the respective meanings set forth in this
Section 1. Capitalized terms not defined in this Section 1 shall have the
meanings given in the Asset Purchase Agreement.
1.1 TRS Software. The term "TRS Software" means those software programs
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set forth on Exhibit A to this Agreement and Related Documentation
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pertaining thereto.
1.2 Related Documentation. The term "Related Documentation" as used
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herein shall mean human-readable source code with comments,
user/operator/programmer documentation, manuals, data/file
structures, or any other related materials, but only to the extent
such materials are in existence and presently available for use in
the normal course as of the Effective Date of this Agreement.
1.3 Ryder Software. The term "Ryder Software" means those software
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programs set forth on Exhibit B to this Agreement and Related
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Documentation pertaining thereto.
2 Ryder's License to TRS. Subject to the terms and conditions set forth
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herein and Section 6.2(d) of the Asset Purchase Agreement, Ryder hereby grants
to TRS and its Affiliates a worldwide, perpetual, royalty-free, nontransferable
(subject to the provisions set forth herein), non-exclusive license to use, copy
and modify the Ryder Software and make derivative works therefrom at any site
and on any computer central processing unit(s). The Software may be utilized by
employees and agents of TRS, provided, however, that any agents who utilize the
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Ryder Software agree to be bound by the restrictions contained in Sections 7 and
10.7 herein.
3 TRS's License to Ryder. Subject to the terms and conditions of this
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Agreement, TRS grants to Ryder and its Affiliates a worldwide, perpetual,
royalty-free, nontransferable (subject to the provisions set forth herein),
nonexclusive license, to use, copy and modify the TRS Software and make
derivative works therefrom at any site and on any computer central processing
unit to use in Ryder's business operations provided, however, that Ryder shall
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not use the TRS Software in contravention of the non-compete provisions of the
Asset Purchase Agreement. The Software may be utilized by employees and agents
of Ryder, provided, however, that any agents who utilize the TRS Software agree
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to be bound by the restrictions contained in Sections 7 and 10.7 herein.
4 Royalties and Fees.
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Neither party shall be entitled to royalties or license fees in
consideration of the licenses granted under this Agreement.
5 Termination.
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5.1 Termination for Breach.
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(a) If either Party (hereinafter called the "Breaching Party") shall
breach any of its material obligations under this Agreement, the other
Party (hereinafter called the "Non-Breaching Party") may give written
notice to the Breaching Party specifying the nature of such breach and
stating that the Non-Breaching Party intends to terminate the license it
granted to the other Party hereunder if such default is not cured within
forty-five (45) days of such written notice. If any breach so specified
is not cured within such period, the Non-Breaching Party may elect to
immediately terminate the license it granted to the other Party hereunder.
Such termination shall be effective upon giving a written notice of
termination from the Non-
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Breaching Party to the Breaching Party and shall be without prejudice to
any other remedy which may be available to the Non-Breaching Party against
the Breaching Party .
5.2 Termination for Insolvency.
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Either Party may immediately terminate the license it granted to the
other Party hereunder by a written notice to the other without any prior
written notice upon the occurrence of any of the following events: (i)
the other Party voluntarily enters into proceedings in bankruptcy or
insolvency; (ii) the other Party shall make an assignment for the benefit
of creditors; (iii) a petition shall be filed against the other Party
under a bankruptcy law, a corporate reorganization law, or any other law
for the relief of debtors (or similar law in purpose or effect) and such
petition shall not have been dismissed within sixty (60) days; or (iv) the
other Party enters into liquidation or dissolution proceedings.
5.3 Effects of Termination.
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5.3.1 Termination of Ryder Software License. Upon termination of
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the license of the Ryder Software for any reason, TRS shall immediately
cease using the Ryder Software and shall return all copies of the Ryder
Software in its possession to Ryder.
5.3.2 Termination of TRS Software License. Upon termination of the
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license of the TRS Software for any reason, Ryder shall immediately cease
using the TRS Software and shall return all copies of the TRS Software in
its possession to TRS.
6 Warranty Disclaimer and Limitation of Damages. THE RYDER SOFTWARE AND THE
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TRS SOFTWARE ARE PROVIDED "AS IS" AND "WITH ALL FAULTS." NEITHER PARTY
SHALL HAVE ANY OBLIGATION UNDER THIS AGREEMENT TO PROVIDE TO THE OTHER
PARTY ANY MAINTENANCE OR SUPPORT SERVICES WHATSOEVER WITH RESPECT TO THE
SOFTWARE IT IS LICENSING TO THE OTHER PARTY HEREUNDER (INCLUDING, WITHOUT
LIMITATION, ANY SERVICES TO CORRECT MALFUNCTIONS, MODIFY OR ENHANCE THE
SOFTWARE), PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT BE DEEMED TO
RELIEVE RYDER FROM ANY OF ITS OBLIGATIONS SET FORTH IN THE MIS SUPPORT
AGREEMENT OF EVEN DATE. RYDER AND TRS EXPRESSLY DISCLAIM ALL WARRANTIES
WITH RESPECT TO THE RYDER SOFTWARE AND THE TRS SOFTWARE, RESPECTIVELY,
WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY USAGE OF TRADE
OR COURSE OF DEALING, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (EXCEPT AS
EXPRESSLY SET FORTH IN THE ASSET PURCHASE AGREEMENT), NO MISAPPROPRIATION
(EXCEPT AS EXPRESSLY SET FORTH IN THE ASSET PURCHASE AGREEMENT) AND
NONINFRINGEMENT (EXCEPT AS EXPRESSLY SET FORTH IN THE ASSET PURCHASE
AGREEMENT). NEITHER PARTY
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SHALL IN ANY EVENT BE LIABLE FOR PUNITIVE, SPECIAL, DIRECT, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES
FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR ANY OTHER LOSS)
ARISING FROM OR RELATING TO ANY CLAIM MADE UNDER THIS AGREEMENT OR
REGARDING THE LICENSES GRANTED HEREUNDER, WHETHER CLAIMED UNDER CONTRACT,
TORT OR ANY OTHER LEGAL THEORY OR FOR LOSS OR DAMAGE TO THE OTHER PARTY'S
DATA OR PROGRAMMING; PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT
PRECLUDE EITHER PARTY FROM EXERCISING ANY OF ITS RIGHTS UNDER THE ASSET
PURCHASE AGREEMENT IN ACCORDANCE WITH THE TERMS THEREOF. EXCEPT AS SET
FORTH IN SECTION 9, RYDER'S AND TRS'S SOLE LIABILITY TO EACH OTHER AND
THEIR SOLE REMEDY AVAILABLE UNDER THIS AGREEMENT SHALL BE REASONABLE
COOPERATION IN OBTAINING FOR THE ACCOUNT OF THE USER REPAIR OR REPLACEMENT
OF THE FUNCTIONALITY OF ANY SOFTWARE THAT FAILS TO CONTINUE TO PERFORM AT
THE LEVEL AT WHICH IT PERFORMS AS OF THE CLOSING.
7 Confidential Information. Each Party shall use reasonable efforts, and at
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least the same care that it uses to protect its own proprietary information
of like importance, to prevent unauthorized dissemination or disclosure of
the software owned by the other Party both during and after the term of
this Agreement.
8 Software Ownership.
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8.1 Ryder Software. The Ryder Software and Related Documentation are the
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property of Ryder and remain so even after delivery to TRS.
8.2 TRS Software. The TRS Software and Related Documentation are the
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property of TRS and remain so even after delivery to Ryder.
9 Remedies. Each Party acknowledges that its breach of Article 2 (in the
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case of TRS), Article 3 (in the case of Ryder), Article 7 (in the case of
each Party) or Section 10.7 (in the case of each Party) would cause
immediate and irreparable harm to the other Party for which money damages
would be inadequate. Therefore, each Party shall be entitled to injunctive
relief for the other Party's breach of said Articles without proof of
actual damages and without the posting of bond or other security. Such
remedy shall not be deemed to be the exclusive remedy for breach of said
Articles but shall be in addition to all other remedies available at law or
in equity.
10 General.
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10.1 Relationship of the Parties. It is expressly understood and agreed
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that this Agreement does not constitute either Party as an employee,
partner, joint venturer, agent or other representative of the other
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Party for any purpose whatsoever. Neither Party has the right or
authority to enter into any contract, warranty, guarantee or other
undertaking in the name of or for the account of the other Party, or
to assume or create any obligation or liability of any kind, express
or implied, on behalf of the other Party, or to bind the other Party
in any manner whatsoever, or hold itself out as having any right,
power or authority to create any such obligation or liability on
behalf of the other or to bind the other Party in any manner
whatsoever (except as to any actions taken by either Party at the
express written request and direction of the other Party).
10.2 Force Majeure. Neither Party shall be liable for its failure or
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delay in fulfilling its obligations hereunder, if such failure or delay is
caused by fire, flood, weather conditions or other Acts of God, invasions,
insurrections, riots, closing of the public highways, strike, lockout or
other labor dispute, civil unrest, war or any other reason beyond the
reasonable control of the Party. In the case of strikes, lockouts or
other labor disputes, it is understood that such event is beyond the
reasonable control of the party suffering the event unless and until the
Party is able to resolve it in a manner which such Party deems reasonable
and appropriate.
10.3 Counterparts. This Agreement may be executed in one or more
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counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more counterparts have been signed
by each of the parties and delivered to the other party. Copies of
executed counterparts transmitted by telecopy, telefax or other electronic
transmission service shall be considered original executed counterparts
for purposes of this Section, provided receipt of copies of such
counterparts is confirmed.
10.4 Governing Law; Jurisdiction and Forum.
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10.4.1 This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without reference to the
choice of law principles thereof, except for matters of Florida corporate
law, as to which such law shall apply.
10.4.2 Ryder and TRS hereby irrevocably submit to the jurisdiction
of any New York State or Federal court sitting in the City of New York in
any action or proceeding arising out of this Agreement or the transactions
contemplated hereby. Ryder and TRS hereby irrevocably waive the defense of
an inconvenient forum to the maintenance of any such action or proceeding.
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10.4.3 By the execution and delivery of this Agreement, TRS (i)
irrevocably designates and appoints Xxx Xxxx & Associates ("JA&A"), 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent upon which
process may be served in any action or proceeding arising out of or
relating to this Agreement so long as JA&A maintains a place of business at
an address in New York City; provided that TRS may at any time designate
and appoint in lieu of JA&A The Corporation Trust Company ("CTC") care of
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CT Corporation System, at 0000 Xxxxxxxx, 00xx xxxxx, xx xxx Xxxx xx Xxx
Xxxx, Xxxxxx of New York, State of New York, to so serve, (ii) submits to
the personal jurisdiction of any state or federal court in the State of New
York in any such action or proceeding, and (iii) agrees that service of
process upon CTC shall be deemed in every respect effective service of
process upon TRS in any such action or proceeding. TRS further agrees to
take any and all action, including the execution and filing of any and all
such documents and instruments, as may be necessary to continue such
designation and appointment of CTC in full force and effect so long as this
Agreement shall be in effect. The foregoing shall not limit the rights of
any party to serve process in any other manner permitted by law.
10.5 Entire Agreement. This Agreement and the Schedules and Exhibits
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hereto contain the entire agreement between the parties with respect to
the subject matter hereof and there are no agreements, understandings,
representations or warranties between the parties other than those set
forth or referred to herein. This Agreement is not intended to confer
upon anyone not a party hereto any rights or remedies hereunder.
10.6 Notices. All notices shall be in writing and delivered personally or
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sent by nationally recognized overnight delivery service (e.g., Federal
Express) or registered or certified mail, return receipt requested, to the
appropriate address set forth below. Notices to Ryder shall be addressed
to:
Ryder Truck Rental, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: President
with a copy to:
Ryder System, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: General Counsel
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or at such other address and to the attention of such other person as
Ryder may designate by written notice to TRS. Notices to TRS shall be
addressed to:
Ryder TRS, Inc.
c/o Questor Management Company
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: President
with a copy to:
Ryder TRS, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
or at such other address and to the attention of such other person as
TRS may designate by written notice to Ryder.
10.7 Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of the parties hereto and their respective successors
and permitted assigns; provided, that neither party may assign this
Agreement without the prior written consent of the other party.
Notwithstanding the foregoing: (i) TRS may assign this Agreement, upon 10
days prior written notice to and without the consent of Ryder, to a party
who purchases or acquires, as a going concern, the business of TRS or all
or substantially all of TRS's assets, provided, however, that any assignee
of this Agreement must (a) agree with Ryder, in writing, to be bound by
the terms and provisions hereof, (b) have a debt/equity ratio as good as
TRS's at the time of execution hereof, (c) be the assignee of the
competition provisions in Section 6.2(d) of the Asset Purchase Agreement
and the following agreements defined in the Asset Purchase Agreement (to
the extent such agreements are still existing at the time of such
assignment): (1) the Copyright License Agreement, (2) the Administrative
Services Agreement, (3) the Trademark Agreement, (4) the Dealer Agreement,
(5) the Vehicle Maintenance Agreement, (6) the MIS Support Agreement, and
(7) the Used Truck Sales Agreement, and (d) not be one of the parties set
forth in paragraph number 8 on Schedule 3 of the Trademark Agreement, (ii)
Ryder may assign this Agreement, upon 10 days prior written notice to and
without the consent of TRS, to a party who purchases or acquires, as a
going concern, the business of Ryder or all or substantially all of
Ryder's assets, provided, however, that any assignee of
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this Agreement must (a) agree with TRS, in writing, to be bound by the
terms and provisions hereof, and (b) have a debt/equity ratio a good as
Ryder's at the time of execution hereof. TRS may assign its rights
hereunder to any lenders which provide financing to TRS for the purpose of
consummating the transactions contemplated under the Asset Purchase
Agreement, or refinancing any such financing, including any successors
thereto.
10.8 Headings; Definitions. The headings contained in this Agreement are
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inserted for convenience of reference only and will not affect the meaning
or interpretation of the Agreement. All references to Sections or
Articles contained herein mean Sections or Articles of this Agreement
unless otherwise stated. All capitalized terms defined herein are equally
applicable to both the singular and plural forms of such terms.
10.9 Amendments and Waivers. This Agreement may not be modified or
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amended except by an instrument or instruments in writing signed by the
party against whom enforcement of any such modification or amendment is
sought. Either party hereto may, only by an instrument in writing, waive
compliance by the other party hereto with any term or provision hereof on
the part of such other party hereto to be performed or complied with. The
waiver by any party hereto of a breach of any term or provision hereof
shall not be construed as a waiver of any subsequent breach.
10.10 Interpretation; Absence of Presumption. This Agreement shall be
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construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting or causing
any instrument to be drafted.
10.11 Severability. Any provision hereof which is invalid or
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unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions
hereof.
10.12 Survival. The provisions contained in Sections 5.3, 6, 7, 9 and
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this Section 10 shall survive the termination of this Agreement for any
reason whatsoever.
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IN WITNESS WHEREOF, the parties have caused this Software License
Agreement to be executed by their duly authorized officers as of the date first
written above.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC. (f/k/a
"RYDER" RCTR HOLDINGS, INC.)
"TRS"
By: /s/Xxxxxx X. Xxxxx By:/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxx Xxxxxxx X. Xxxxxxx
Executive V.P.-Development Senior Vice President &
Treasurer
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