Exhibit 99.2
SOFTWARE LICENSE AGREEMENT
This Software License Agreement (this "Agreement") dated as of November 10,
1998, is entered into by and between GSE PROCESS SOLUTIONS, INC., a Delaware
corporation ("GSE") and THE SAGE SYSTEMS DIVISION of VALMET AUTOMATION (USA)
INC., 0000 Xxxxxxxxx, Xxxxxxx, XX, a Delaware corporation ("Valmet USA") and THE
SAGE SYSTEMS DIVISION of VALMET AUTOMATION (CANADA) LTD., 00000 Xxxxxxxxx Xxxx
X.X., Xxxxxxx, XX a Canadian Corporation ("Valmet Canada") (Valmet USA and
Valmet Canada shall be collectively referred to as "LICENSEE").
WHEREAS, GSE and Valmet USA have entered into the Asset Purchase Agreement
(as defined herein);
WHEREAS, pursuant to the Asset Purchase Agreement, Valmet USA is purchasing
certain assets of GSE's oil & gas business; and
WHEREAS, the assets to be acquired by Valmet USA do not include GSE's
SimSuite Pipeline Software or TotalVision Software; and
WHEREAS, in connection with the Asset Purchase Agreement, subject to the
terms and conditions contained in this Agreement, GSE desires to license to
Valmet USA, and Valmet USA desires to license from GSE, the SimSuite Pipeline
Software and the TotalVision Software; and
WHEREAS, Valmet USA may also desire to pursue such activities through
Valmet Canada, and GSE has agreed that the license rights granted hereunder
shall be extended to the Valmet Canada as well.
WHEREAS, the parties acknowledge and agree that, although GSE will retain
ownership rights in the software to be licensed hereunder, Licensee should be
provided sufficient license rights in such software to allow it, in the ordinary
course of business, to pursue business opportunities within certain agreed-upon
market limitations;
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants, and agreements of the parties herein set forth, the parties hereto,
intending to be legally bound, do hereby agree as follows:
1. Definitions
1.1. "Asset Purchase Agreement" means the Asset Purchase Agreement by and among
Valmet USA, GSE and certain parties affiliated with GSE, dated November 10,
1998.
1.2. "Claims" shall have the meaning given in Article 6.
1.3. "Closing Date" shall have the meaning ascribed to that term in the Asset
Purchase Agreement.
1.4. "Common Elements" shall have the meaning ascribed to that term in the Asset
Purchase Agreement.
1.5. "D/3 Software" means GSE's software known as the D/3 Distributed Control
System.
1.6. "Derivative" means any software, documentation or other item that is a
modification or translation of the Software, or that is otherwise, based upon,
incorporates, or a derivative work of some or all of the Software.
1.7. "New Elegant Software" means GSE's current version of the "Elegant"
software module (an electrical network modeling tool) forming part of GSE's
SimSuite Power software, and all subsequent updates and upgraded versions
thereof (but only so long as GSE continues to market such software).
1.8. "Permitted Derivative" means any Derivative that, (i) in the case of a
Derivative of the SimSuite Pipeline Software, is adapted for use in an
application for which Licensee is authorized to sublicense the SimSuite Pipeline
Software pursuant to Section 2.1 or 2.5, or (ii) in the case of a Derivative of
the TotalVision Software, is adapted for use as part of the S/3 Software, the
SimSuite Pipeline Software, Licensee's OASyS software or other SCADA software
and software products developed by Licensee for use in connection with SCADA
systems.
1.9. "Promotional Material" means promotional and marketing materials for
Software, which disclose the functionality of Software only in general terms and
which are intended for public dissemination free of any confidentiality
obligation, as such materials exist at the Closing Date.
1.10."S/3 Software" shall have the meaning ascribed to that term in the Asset
Purchase Agreement.
1.11."SCADA System" means a supervisory control and data acquisition system such
as the S/3 Software or Licensee's OASyS(R) product.
1.12."SimSuite Pipeline Software" shall have the meaning ascribed to that term
in the Asset Purchase Agreement.
"Software" means the SimSuite Pipeline Software and the TotalVision Software
1.14."Technical Documentation" shall have the meaning ascribed to that term in
the Asset Purchase Agreement.
1.15."TotalVision Software" shall have the meaning ascribed to that term in the
Asset Purchase Agreement.
1.16.All other capitalized terms used herein which are not defined shall have
the meanings ascribed to them in the Asset Purchase Agreement.
2. Grants of Licenses
2.1. SimSuite Pipeline Software.
(a) Subject to all the terms and conditions of this Agreement, GSE hereby
grants to Licensee, and Licensee hereby accepts from GSE, a perpetual (subject
to termination in accordance with Article 9), worldwide, nontransferable (except
in accordance with Article 11), exclusive license to:
(i) develop Permitted Derivatives of the SimSuite Pipeline Software;
(ii) use and demonstrate the SimSuite Pipeline Software and Permitted
Derivatives thereof, provided that such demonstration is without
disclosure of the source code for the SimSuite Pipeline Software
or of other Technical Documentation;
(iii)reproduce such copies of the SimSuite Pipeline Software and
Permitted Derivatives thereof as are reasonably required to enjoy
the rights granted in this Section 2.1.a;
(iv) reproduce, prepare derivative works of, and distribute
Promotional Materials and operators and users manuals relating to
the SimSuite Pipeline Software; and
(v) market and sublicense use of the SimSuite Pipeline Software and
Permitted Derivatives thereof, in object code form only;
provided, however, that such exclusive license shall be for use,
marketing and sublicensing of the SimSuite Pipeline Software,
Permitted Derivatives thereof and such Promotional Materials and
operators and users manuals only in connection with systems which
model or simulate the gathering, pipeline transportation and
distribution of oil, gas and petroleum products ("Oil & Gas").
Notwithstanding the foregoing, the license granted in this Section
2.1.a shall become a nonexclusive license if, within the earlier of:
(A) two (2) years following Licensee's delivery of the SimSuite
Pipeline Software implementation for Pacific Pipeline System, Inc.
pursuant to that certain agreement between GSE and Pacific Pipeline
System, Inc. dated July 1, 1997, or
(B) by March 31, 2002,
Licensee does not sublicense the SimSuite Pipeline Software to
another unaffiliated third party in a bona fide transaction as a
part of which reasonable consideration is paid to Licensee for such
sublicense and the applicable license fees are to GSE.
(b) Subject to all the terms and conditions of this Agreement, GSE hereby
grants to Licensee, and Licensee hereby accepts from GSE, a perpetual
(subject to termination in accordance with Article 9), worldwide,
nontransferable (except in accordance with Article 11), nonexclusive
license to:
(i) develop Permitted Derivatives of the SimSuite Pipeline Software;
(ii) use and demonstrate the SimSuite Pipeline Software and Permitted
Derivatives thereof, provided that such demonstration is without
disclosure of the source code for the SimSuite Pipeline Software
or of other Technical Documentation;
(iii)reproduce such copies of the SimSuite Pipeline Software and
Permitted Derivatives thereof as are reasonably required to enjoy
the rights granted in this Section 2.1.b;
(iv) reproduce, prepare derivative works of, and distribute
Promotional Materials and operators and users manuals relating to
the SimSuite Pipeline Software; and
(v) market and sublicense use of the SimSuite Pipeline Software and
Permitted Derivatives thereof, in object code form only;
provided, however, that such license shall be for use of the
SimSuite Pipeline Software, Permitted Derivatives thereof and such
Promotional Materials and operators and users manuals only in
connection with systems which model or simulate the transmission and
distribution of electric power ("Electric Power Distribution"), the
transportation and distribution of fresh water or collection and
transportation of waste water ("Water & Wastewater"), and rail
traction power distribution ("Rail Traction"); and provided further,
that for use in Electric Power Distribution and Water & Wastewater
applications, and Rail Traction. Licensee shall market or sublicense
the SimSuite Pipeline Software and Permitted Derivatives thereof
only as an integrated solution with a SCADA System (which may be
either an end-user's preexisting system or a Licensee-delivered
system).
(c) GSE hereby grants Licensee the right to use the trademark "SimSuite
Pipeline" in connection with the license grants for the SimSuite Pipeline
Software described in sub-sections (a) and (b) above; provided, however,
that Licensee shall not be permitted to use the trademarks "SimSuite
Power", "SimSuite Pro" or "SimSuite" (except when used within the xxxx
"SimSuite Pipeline"). Licensee agrees that its use of the trademark
"SimSuite Pipeline" will be at least consistent with the quality of GSE's
use of such trademark prior to the Closing Date and that its use of such
trademark shall inure to GSE as the owner of the trademark.
2.2. Total Vision Software
Subject to all the terms and conditions of this Agreement, GSE hereby grants to
Licensee, and Licensee hereby accepts from GSE a perpetual (subject to
termination in accordance with Article 9), worldwide, nontransferable (except in
accordance with Article 11), license to:
(a) develop Permitted Derivatives of the TotalVision Software;
(b) use and demonstrate the TotalVision Software and Permitted
Derivatives thereof, provided that such use and demonstration is
without disclosure of the source code or other Technical
Documentation for the TotalVision Software;
(c) reproduce such copies of the TotalVision Software and Permitted
Derivatives thereof as are reasonably required to enjoy the
rights granted in this Section 2.2;
(d) reproduce, prepare derivative works of and distribute Promotional
Materials and operators and users manuals relating to the
TotalVision Software; and
(e) market and sublicense use of TotalVision and its Permitted
Derivatives in object code form only;
provided that Licensee shall market or sublicense TotalVision and
its Permitted Derivatives and Promotional Materials and operators
and users manuals only as part of or bundled with the S/3 Software,
the SimSuite Pipeline Software, Licensee's OASyS software or other
SCADA software and software products developed by Licensee for use
in connection with SCADA systems.
This license is exclusive for the use, marketing and sub-licensing
of the TotalVision Software with SCADA systems and modeling and
simulation systems used in connection with the gathering, pipeline
transportation and distribution of oil, gas and petroleum products
only, and non-exclusive for all other markets.
2.3. New Elegant Software
Subject to all the terms and conditions of this Agreement, GSE hereby grants to
Licensee, and Licensee hereby accepts from GSE a non-exclusive, perpetual
(subject to termination in accordance with Article 9), worldwide,
nontransferable (except in accordance with Article 11), license to:
(a) develop Permitted Derivatives of the New Elegant Software;
(b) use and demonstrate the New Elegant Software and Permitted
Derivatives thereof, provided that such use and demonstration is
without disclosure of the source code for the New Elegant
Software;
(c) reproduce such copies of the New Elegant Software and Permitted
Derivatives thereof as are reasonably required to enjoy the
rights granted in this Section 2.3;
(d) reproduce, prepare derivative works of and distribute Promotional
Materials and Technical Documentation relating to the New Elegant
Software; and
(e) market and sublicense use of the New Elegant Software and its
Permitted Derivatives in object code form only;
subject to the following:
* Buyer's license will be solely for use in applications
involving the transmission and distribution of electric
power and the distribution of electric power for rail
traction purposes only;
* Buyer shall market or sublicense the New Elegant Software
only as an integrated solution with a SCADA system, which
may be either an end-user's pre-existing system or a Buyer
delivered system; and
* The list price for each copy of the New Elegant Software
delivered by Licensee to its customers shall be $25,000 USD.
2.4. Intentionally Deleted
2.5. Marketing and Sublicensing of Software and Permitted Derivatives.
(a) When marketing or sublicensing the Software and Permitted Derivatives,
Licensee shall (i) include in each copy of the Software or a Permitted
Derivative distributed by Licensee, copyright and proprietary rights
notices approved, as to content and placement, by GSE in writing; (ii)
make no representations and warranties, and assume no other
obligations, on behalf of GSE; and (iii) enter into a written
sublicense agreement with each sublicensee which affords GSE no less
protection than the form of License Agreement attached hereto as
Exhibit A.
(b) Upon written notice by Licensee of its desire promptly to market and
sublicense use of the SimSuite Pipeline Software and its Permitted
Derivatives for use in applications other than those provided for in
Section 2.1 of this Agreement, GSE shall not unreasonably refuse to
grant a license, on terms substantially the same as the terms of the
grant in Section 2.1.b, subject to agreement of the parties as the
amount of the license fees, to market and sublicense use of the
SimSuite Pipeline Software and its Permitted Derivatives in the
additional market.
(c) Notwithstanding sub-sections (a) and (b) above, Licensee shall not
use, market or sublicense the Software for process control
applications, without the prior written consent of GSE, which may be
withheld in GSE's sole discretion.
2.6. Sub-distributors
Licensee may market and sublicense the Software to Licensee's sub-distributors,
only for redistribution to end users, provided that Licensee obtains from the
sub-distributor a signed agreement under which the sub-distributor agrees to
market and sublicense the Software only in accordance with the terms and
conditions of this Agreement and on terms which afford GSE no less protection
than the terms of this Agreement.
2.7. Title, Notices, Acceptance, Etc.
(a) Licensee acknowledges that GSE owns the patent, copyright, trade
secret and other proprietary rights in the Software and Promotional
Materials and all copies of the Software. GSE grants Licensee no
licenses or other rights with respect thereto, including any licenses
by implication or estoppel, except as expressly granted by this
Agreement. Licensee shall not develop Derivatives or use, demonstrate,
market, copy, sublicense, distribute or disclose the Software or
Derivatives except as specifically authorized herein.
(b) GSE acknowledges that Licensee will own any patent, copyright, trade
secret and other proprietary rights arising from the development of
Permitted Derivatives by and for Licensee, subject to GSE's rights in
the Software. Subject to all the terms and conditions of this
Agreement, Licensee hereby grants to GSE, and GSE hereby accepts from
Licensee, a perpetual, worldwide, nontransferable (except in
accordance with Article 11), nonexclusive license under all of
Licensee's patent, copyright, trade secret and other proprietary
rights in Derivatives to use, reproduce, adapt, distribute, perform
and display any software or other item and to authorize others to do
the same.
(c) Licensee hereby acknowledges GSE's delivery and Licensee's acceptance
of the Software by virtue of the activities contemplated by the Asset
Purchase Agreement.
(d) For a period of one (1) year, commencing on the Closing Date, Licensee
may use in its marketing of the Software and Permitted Derivatives
truthful statements identifying the Software as a former product of
GSE; provided that Licensee shall use GSE's name only in such
statements and not use GSE's name or any trademark of GSE as a
trademark (except for trademarks transferred to Licensee pursuant to
the Asset Purchase Agreement). Thereafter, except as provided in
Section 2.5.a. with respect to copyright and proprietary rights
notices, Licensee shall not identify GSE in its marketing of Software
and Derivatives. At no time shall Licensee provide to any third party
any false or misleading description of fact, or false or misleading
representation of fact, or engage in any other activity which is
likely to suggest that GSE is the then-current source of supply for
the Software or Permitted Derivatives or otherwise cause confusion, or
cause mistake, or to deceive as to the affiliation, connection, or
association of GSE with Licensee, the Software, Derivatives or
Promotional Material.
3. Right Of First Refusal
3.1. GSE shall not sell, transfer, assign or otherwise dispose of the SimSuite
Pipeline Software without first offering to sell the SimSuite Pipeline Software
to Licensee in accordance with this Article. If GSE receives a bona fide offer
(an "Offer") from a third party not related to or affiliated with GSE, to
purchase GSE's rights in the SimSuite Pipeline Software, and GSE is prepared to
accept the Offer, GSE shall first make an offer in writing to Licensee to sell
the SimSuite Pipeline Software to Buyer on the same terms and conditions as the
Offer. Notwithstanding the above, GSE may sell, transfer or assign the SimSuite
Pipeline Software to an affiliate or parent company without regard to the
restrictions in this Article, provided that the affiliate or parent company
agrees to be bound by this Agreement.
3.2. GSE's offer to Licensee shall be open for acceptance by Licensee for thirty
(30) days after its receipt. If no acceptance is received from Licensee within
the thirty (30) day period, the offer to sell shall be deemed to have been
refused by Licensee and GSE may proceed with selling the SimSuite Pipeline
Software at a price not less than the price, and on terms not more favorable
than the terms at which the SimSuite Pipeline Software was offered to Licensee.
3.3. If no sale of the SimSuite Pipeline Software is completed by GSE within
ninety (90) days following the date of rejection (or deemed rejection) by
Licensee of GSEs offer, GSE shall be required, before selling, transferring,'
assigning or otherwise disposing of the SimSuite Pipeline Software, to again
offer the SimSuite Pipeline Software to Licensee in the manner set out above.
3.4. The provisions of this Article shall not apply to commercial arrangements
within the ordinary course of GSE's business outside the markets for which
Licensee's rights are exclusive under this Agreement.
4. Intentionally Deleted
5. Confidentiality
5.1. For the purpose of this Article, the term "Confidential Information" means
the Software, Derivatives to the extent they incorporate Software or information
contained in Software, and any other material or information relating to the
Software that GSE treats as confidential and provides to Licensee in connection
with this Agreement; provided that "Confidential Information" does not include
any material or information that Licensee can demonstrate: (i) is or becomes
publicly known through no fault of Licensee, (ii) is rightfully obtained by
Licensee from a third party not obligated to preserve its confidentiality. (iii)
by clear and convincing documentation, was already known to Licensee prior to
the delivery of any Software licensed pursuant to this Agreement through no
infringement of any proprietary right of GSE or breach of an obligation of
confidentiality owed to GSE, and (iv) by clear and convincing documentation, has
been independently developed by Licensee without access to the Software licensed
pursuant to this Agreement.
5.2. Licensee shall not use Confidential Information for any purpose other than
in accordance with this Agreement and shall not disclose Confidential
Information to any person other than its employees who have signed a written
nondisclosure agreement comparable in scope to this Article and have a need to
know such Confidential Information. Notwithstanding the foregoing, Licensee may
disclose Confidential Information to the extent required by a court or other
governmental authority, provided that (i) Licensee gives GSE reasonable notice
of the disclosure, (ii) Licensee uses reasonable efforts to resist disclosing
the Confidential Information, (iii) Licensee cooperates with GSE on a request to
obtain a protective order or otherwise limit the disclosure, and (iv) as soon as
reasonably possible, Licensee provides a letter from its counsel confirming that
the Confidential Information is, in fact, required to be disclosed.
5.3. Licensee shall guard against unauthorized access to or disclosure of
Confidential Information by commercially reasonable procedures, which in no
event shall be less protective than the procedures employed by Licensee to
protect its own similar information. Without limiting the generality of the
foregoing, Licensee shall (i) store or use the source code for the Software only
on computers separated from public networks and from private networks that could
allow access to employees who do not have a need to know such source code; (ii)
maintain logs of the location of all copies of such source code and of the
employees having access thereto; and (iii) provide copies of such logs to GSE
upon GSE's request.
5.4. The parties acknowledge that Licensee's breach of this Article 5 would
cause GSE irreparable injury for which it would not have an adequate remedy at
law. In the event of a breach, the non-breaching party shall be entitled to
injunctive relief in addition to any other remedies it may have at law or in
equity.
6. Infringement Warranty and Indemnity
6.1 GSE represents and warrants that it has the right to license the Software to
Licensee. GSE shall indemnify, defend, and hold harmless Licensee and its
respective successors and assigns and the directors, officers, employees,
managing partners and agents of each (collectively, the "Licensee Group"), at,
and at any time after, the Closing Date, from and against any and all demands,
claims, actions, or causes of action, assessments, losses, damages, liabilities,
costs, and expenses, including reasonable fees and expenses of counsel, other
expenses of investigation, handling, and litigation, and settlement amounts
(collectively, a "Loss" or "Losses"), asserted against, resulting to, imposed
upon, or incurred by the Licensee Group, directly or indirectly, by reason of,
resulting from, or arising in connection with any use of the Software by the
Licensee or its customers in the same manner used by GSE prior to the Closing
Date that infringes the intellectual property rights of any person under the
laws of the United States or Canada or infringes:
(1) a patent or copyright under the laws of the countries listed in
Exhibit B; or
(2) a trade secret under the laws of any country, if the same acts
also would constitute a misappropriation of trade secrets under
the laws of the United States.
If any portion of the Software is held to constitute an infringement or
misappropriation and its use is enjoined (or if GSE believes that any such
portion may be so held and enjoined), GSE may at its own expense:
(a) procure for Licensee the right to continue using such portion of
the Software;
(b) replace such portion of the Software with a non-infringing and
non-misappropriating functional equivalent satisfactory to
Licensee; or
(c) modify such portion of the Software in a way satisfactory to
Licensee so that it becomes non-infringing and
non-misappropriating.
6.2 Licensee shall indemnify, defend, and hold harmless GSE and its successors
and assigns and the directors, officers, employees, and agents of GSE
(collectively, the "GSE Group"), at, and at any time after, the Closing Date,
from and against any and all Losses asserted against, resulting to, imposed
upon, or incurred by the GSE Group, directly or indirectly, by reason of,
resulting from, or arising in connection with Licensee's use or distribution of
the Software or Derivatives, except to the extent that such Losses are subject
to GSE's indemnification obligations under the provisions of Section 6.1 of this
Agreement or Article 11.1 of the Asset Purchase Agreement.
6.3 The party entitled to indemnification hereunder (the "Claimant") shall
promptly deliver to the party liable for such indemnification hereunder (the
"Obligor") notice in writing (the "Required Notice") of any claim for recovery
under Section 6.1 or Section 6.2, specifying in reasonable detail the nature of
the Loss, and, if known, the amount, or an estimate of the amount, of the
liability arising therefrom (the "Claim"). The Claimant shall provide to the
Obligor as promptly as practicable thereafter information and documentation
reasonably requested by the Obligor to support and verify the claim asserted,
provided that, in so doing, it may restrict or condition any disclosure in the
interest of preserving privileges of importance in any foreseeable litigation.
6.4 The parties agree that any breach of the foregoing representation and
warranty in this Article 6 or claim to indemnification under this Article 6 is
subject to the provisions of Articles 11.3, 11.4, 11.5 and 11.6 of the Asset
Purchase Agreement.
7. Warranties
EXCEPT AS PROVIDED IN SECTION 6.1, SOFTWARE AND PROMOTIONAL MATERIALS ARE
PROVIDED "AS IS," AND GSE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability
GSE SHALL NOT BE LIABLE HEREUNDER FOR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THEIR POSSIBILITY.
9. Termination
If Licensee fails to comply with any material provision of this Agreement, GSE
may give Licensee written notice of breach and, unless such breach is fully
cured within thirty (30) days after the receipt of notice by Licensee, GSE may
thereupon, at its option, terminate this Agreement upon further written notice
to Licensee.
10. Notices
Any notice, request, instruction, other communication or other document to be
given hereunder by any party hereto to the other party shall be in writing and
delivered personally, telecopied or sent by recognized overnight delivery
service, and shall be deemed given when so delivered personally, telecopied
(with appropriate confirmation of receipt) or received, as follows:
If to GSE, to:
GSE Process Solutions, Inc.
0000 Xxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
If to Licensee, to:
Valmet Automation SAGE Systems Division
X/X 00000 Xxxxxxxxx Xxxx X.X.
Xxxxxxx, XX, Xxxxxx, X0X 0X0
Attention: Xxxxxxx Xxxxxx
with copies to:
Arent Fox Xxxxxxx Xxxxxxx & Xxxx
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxx X. XxXxxxxx, Esq.
or at such other addresses for a party as shall be specified by notice to the
other party.
11. Assignment
11.1. This Agreement shall not be assignable by either party hereto, whether by
written instrument or by operation of law, without the written consent of the
other party, which consent shall not be withheld unreasonably; provided that
either party may assign this Agreement to any entity into which such party is
merged or to which all or substantially all the assets of its business relating
to the Software is transferred (subject to the right of first refusal provided
in Article 3 hereof), if such party provides the other party prior written
notice of such assignment together with a written confirmation by the assignee,
reasonably satisfactory in form and substance to the other party, that such
assignee agrees to, and agrees to be bound by, all of the terms and conditions
of this Agreement. Any purported assignment in violation of this Article 11
shall be void.
11.2. Licensee agrees that, should it intend to assign or otherwise transfer,
including by merger or other operation of law, any or all of its rights under
this Agreement as permitted by this Section 11.1 to any of GSE's direct
competitors in the computer-based simulation business, or an affiliate of such a
competitor of GSE, GSE shall have a right of first refusal to acquire any and
all rights under this Agreement intended to be assigned or otherwise
transferred. Accordingly, Licensee shall not assign or otherwise transfer its
rights under this Agreement without first offering such rights to GSE and
permitting GSE thirty (30) days to evaluate whether to acquire the same on the
terms offered by Licensee. If GSE manifests its desire to acquire the rights
under this Agreement on the terms offered, the parties shall consummate the
assignment or other transfer within thirty (30) days. Only if GSE elects in
writing not to acquire the same on the terms offered or the thirty (30) day
period passes without GSE electing in writing to acquire the same on the terms
offered may Licensee sell the rights under this Agreement to a third party, and
only then for the price and on the terms offered to GSE.
12. Export Controls
12.1. Licensee shall comply with any export control laws and regulations
applicable to the Software. Licensee shall indemnify GSE for any and all damages
and fines resulting from a violation of applicable export control laws and
regulations that occurs after the Closing Date.
13. Miscellaneous
13.1. This Agreement (including any and all Exhibits hereto), the Asset Purchase
Agreement, and the other certificates, agreements, and other instruments to be
executed and delivered by the parties in connection with the transactions
contemplated hereby, constitute the sole understanding of the parties with
respect to the subject matter hereof. No amendment, modification, or alteration
of the terms or provisions of this Agreement shall be binding unless the same
shall be in writing and duly executed by the parties hereto.
13.2. This Agreement may be executed in one or more counterparts, each of which
shall for all purposes be deemed to be an original and all of which shall
constitute the same instrument.
13.3. The headings of the Articles of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or
to affect the construction hereof.
13.4. Any of the terms or conditions of this Agreement may be waived in writing
at any time by the party that is entitled to the benefits thereof. No waiver of
any of the provisions of this Agreement shall be deemed to or shall constitute a
waiver of any other provision hereof (whether or not similar).
13.5. This Agreement shall be construed in accordance with and governed by the
laws of the State of Maryland without giving effect to the principles of
conflicts of law thereof.
13.6. GSE and Licensee shall consult with each other before issuing any press
releases or otherwise making any public statements with respect to this
Agreement and the transactions contemplated hereby. Neither GSE nor Licensee
shall issue any such press release or make any public statement without the
agreement of the other party, except as such party's counsel advises in writing
may be required by law.
13.7. With the exception of the parties to this Agreement there shall exist no
right of any person to claim a beneficial interest in this Agreement or any
rights occurring by virtue of this Agreement.
13.8. All covenants, agreements, representations, and warranties made herein
shall survive the execution and delivery of this Agreement and the Closing and
shall not be deemed waived or otherwise affected by any investigation made by
any party hereto.
13.9. Words of inclusion shall not be construed as terms of limitation herein,
so that references to "included" matters shall be regarded as nonexclusive,
noncharacterizing illustrations.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed on its behalf on the date indicated.
GSE PROCESS SOLUTIONS, INC.
By:
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Name:
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Title:
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THE SAGE SYSTEMS DIVISION
OF VALMET AUTOMATION (USA), INC.
By:
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Name:
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Title:
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THE SAGE SYSTEMS DIVISION
OF VALMET AUTOMATION (CANADA) LTD.
By:
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Name:
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Title:
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