Exhibit 10.42
AMENDED AND RESTATED LIBERTY SOFTWARE LICENSE AGREEMENT
This Amended and Restated Liberty Software License Agreement ("Agreement") is
made and entered into as of the 31st day of March, 2002 (the "Effective Date")
between LIBERTY INTEGRATION SOFTWARE, INC., a British Columbia corporation,
having its offices at 000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, X.X., Xxxxxx X0X
0X0 ("Licensor"), and THE XXXXXXXX AND XXXXXXXX COMPANY, an Ohio corporation,
having its offices at Xxx Xxxxxxxx Xxx, Xxxxxxxxx, Xxxx 00000 ("Xxxxxxxx").
WITNESSES THAT WHEREAS:
A. Licensor and Xxxxxxxx entered into a Liberty Software License Agreement
effective as of January 18, 1999 (the "Prior Agreement") and a Source
Code Escrow Agreement effective as of the same date (the "Escrow
Agreement").
B. Licensor and Xxxxxxxx desire to amend and restate the Prior Agreement
in its entirety as set forth in this Agreement.
C. Licensor and Xxxxxxxx desire all licenses and rights granted or
provided to Xxxxxxxx for under the Prior Agreement to remain in effect
perpetually and become subject to and governed by the license
provisions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual obligations and rights of the
parties hereto, the parties hereby agree and covenant as follows:
1. INTERPRETATION. The following Schedules are all a material part of this
Agreement and are incorporated herein by this reference as if fully
written in this Agreement:
a) Definitions - Schedule 1;
b) Price Matrix - Schedule 2;
c) Software Description - Schedule 3;
d) Compatible Software and Hardware - Schedule 4;
e) Support Services - Schedule 5;
f) Mutually Approved Specifications and Documentation - Schedule
6; and
g) Source Code Escrow Agreement - Schedule 7.
2. DELIVERABLES. Licensor has delivered the Deliverables to Xxxxxxxx.
Licensor has delivered to Xxxxxxxx all software and technical
information appropriate to produce program encryption keys ("Program
Keys") that will permit the Liberty Software used by Xxxxxxxx
internally for development or Sublicensed and distributed by Xxxxxxxx
to Customers in accordance with this Agreement to operate fully without
restriction or time limits for Xxxxxxxx' uses and those of the properly
Sublicensed Xxxxxxxx Customers ("Program Key Software"). Licensor will
promptly provide all updates related to the Program Keys so that
Xxxxxxxx will at all times be able to produce an unlimited number of
Program Keys for the Liberty Software and Deliverables. If Xxxxxxxx
licenses New Releases pursuant to Section 8 herein, the Licensor will
promptly provide all Program Keys so that Xxxxxxxx will at all times
after licensing the New Releases be able to produce an unlimited number
of Program Keys for all New Releases.
3. INSTALLATION. Xxxxxxxx acknowledges that the Liberty Software and
Program Key Software have been installed on the hardware platforms
described in Schedule 4 and that Xxxxxxxx accepts the Liberty Software
and Program Key Software as operating substantially in accordance with
the material provisions of the Mutually Approved Specifications without
delays, interruptions, data loss, errors or defects, subject to the
Support and warranty obligations set forth herein.
4. LICENSE. Licensor hereby grants to Xxxxxxxx a non-exclusive,
irrevocable, personal, non-assignable (subject to Section 30 herein),
perpetual, world-wide, royalty-free, fully-paid license to:
a) install, copy, reproduce, modify, and create derivative works
of the Liberty Software, and use the Liberty Software and
authorize the employees and contractors of Xxxxxxxx to do so,
worldwide on an unlimited number of computers, workstations
and servers for an unlimited number of users for all purposes
of Xxxxxxxx at any and all locations.
b) integrate the Liberty Software with other software written or
otherwise provided by Xxxxxxxx to create the Xxxxxxxx Software
using Xxxxxxxx employees and contractors for distribution
pursuant to an unlimited number of Sublicenses.
c) market, publicly display, demonstrate, sublicense, duplicate
and distribute worldwide the Liberty Software and Deliverables
with the Xxxxxxxx Software directly and indirectly to an
unlimited number of Customers of Xxxxxxxx pursuant to
Sublicenses and authorize Customers to install, copy, use or
publicly display or demonstrate the Liberty Software and
Deliverables with the Xxxxxxxx Software or otherwise enjoy the
rights Xxxxxxxx holds to the Liberty Software and Deliverables
without limitations with the Xxxxxxxx Software.
d) copy, reproduce, modify and create derivative works of the
Documentation in an unlimited number and any form and
distribute the same to Customers worldwide pursuant to
Sublicenses and for Xxxxxxxx' internal uses including for
back-up and archives, marketing, distribution, sublicensing,
training, service, support and maintenance, all subject to the
terms hereof. If Xxxxxxxx makes any modifications to the
Documentation then Xxxxxxxx will send a copy of such
modifications to Licensor for Licensor's prior written
approval before it may be released to any Customers, which
approval will not be unreasonably withheld or delayed;
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e) use Licensor's trademarks, subject to the restrictions herein;
and
f) use the Program Key Software and produce, sublicense and
deliver to Customers an unlimited number of the Program Keys
to enable operation of the Liberty Software and Deliverables
for use with the Xxxxxxxx Software.
5. NEW RELEASES. From time to time Xxxxxxxx may request in writing that
Licensor provide to Xxxxxxxx any New Releases that are made generally
available in the marketplace or are made available to other customers
of Licensor that are high-volume licensees similarly situated to
Xxxxxxxx. Upon such request, Licensor will provide to Xxxxxxxx such New
Releases for the direct costs and expenses Licensor incurs in providing
any customizations required to use the New Releases with Xxxxxxxx
Software. Licensor will provide all such New Releases pursuant to a
perpetual license to use and sublicense an unlimited number of New
Releases on the terms set out herein under Section 4 (LICENSE) and at
the same time deposit an updated copy of the Source Code for such New
Release pursuant to the Source Code Escrow Agreement. Upon delivery and
Acceptance, all New Releases will be deemed to be part of the Liberty
Software.
6. OBJECT AND SOURCE CODE. The Liberty Software and the Deliverable are in
executable object code and Licensor and Xxxxxxxx reaffirm the Source
Code Escrow Agreement. Licensor represents that it has since the date
of the Source Code Escrow Agreement, delivered all materials to the
Escrow Agent as may have been required under the Source Code Escrow
Agreement and the Prior Agreement. As applicable, Licensor will deliver
to Escrow Agent all updates, New Releases and New Products to the
Escrow Agent for the Source Code for the Liberty Software and Program
Key Software within thirty (30) days of making such updates, New
Releases and New Products available to Xxxxxxxx or generally available
to the marketplace for the purpose of being held in escrow in
accordance with the terms of the Source Code Escrow Agreement. The
parties will each pay one-half of the cost of the escrow service
charges payable to Escrow Agent. Licensor shall be entitled to add
other parties to the Source Code Escrow Agreement as beneficiaries
provided that no such addition will diminish any rights of or impose
any obligations on Xxxxxxxx thereunder. Other than the fees set forth
herein or any other fees payable for the licenses or support services
related to the updated, New Releases or New Products, Xxxxxxxx shall
not be obligated to pay any additional amounts as a condition to
licensor's obligation to deliver any updates, New Release or New
Product to the Escrow Agent. Notwithstanding anything to the contrary
in the Source Code Escrow Agreement, Xxxxxxxx will be entitled to
receive the source code from the Escrow Agent if Licensor ceases to
provide Support Services pursuant to this Agreement or as requested by
Xxxxxxxx or if the Source Code Escrow Agreement terminates for any
reason.
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7. SUBLICENSES. Licensor agrees that it will not contact the Customers
directly without the prior consent of Xxxxxxxx. Any Sublicenses granted
by Xxxxxxxx to Customers will be on the terms and conditions of the
Xxxxxxxx Customer License, as it may be modified by Xxxxxxxx from time
to time either in general or as to particular Customers. Xxxxxxxx may
also sublicense the Xxxxxxxx Software through any distributor, agent or
other remarketer. Xxxxxxxx may exercise any of the foregoing rights
directly or indirectly through sublicensees and may enter into
sublicenses with sublicensees to effectuate any such arrangement. All
versions of the Liberty Software designed to operate on different
hardware and operating system platforms are available for Xxxxxxxx to
use, market and Sublicense pursuant to the Licenses granted herein.
8. MAINTENANCE. Xxxxxxxx is only entitled to provide support and New
Releases, if applicable, to Xxxxxxxx Customers that are properly
Sublicensed for the Liberty Software by Xxxxxxxx. Commencing on the
Effective Date, Licensor will provide to Xxxxxxxx the Support Services
described on the attached Schedule 5 for the current version of the
Liberty Software used together with the Xxxxxxxx Software as of the
Effective Date ("Support Services"). During the Term, as requested by
Xxxxxxxx Licensor will provide one-hundred and twenty-five (125) hours
of Support Services annually ("Annual Standard Support") to Xxxxxxxx
without charging Xxxxxxxx any fees in addition to the payments set
forth in Section 9 of this Agreement. If Xxxxxxxx requests Support
Services in excess of the Annual Standard Support, then Licensor will
provide the Support Services at the rates that Licensor generally
offers in the marketplace to its similarly situated high-volume
licensees ("Excess Support Fees"). If Xxxxxxxx licenses any Updates or
New Releases, then upon written request of Xxxxxxxx, Licensor will
provide support services for updates and New Releases at the rates that
Licensor generally offers in the marketplace to its similarly situated
high-volume licensees.
9. PAYMENTS. In consideration of the license and rights granted herein
(the "License"), and the other obligations of Licensor under this
Agreement, Xxxxxxxx shall pay to Licensor the sum of Two Million
Dollars ($2,000,000) by a negotiable instrument drawn upon immediately
available funds upon full execution of this Agreement by Licensor and
Xxxxxxxx. Except for any undisputed amounts owed by Xxxxxxxx to
Licensor for licenses for the Liberty Software or Support received from
the Licensor between October 1, 2001 through March 31, 2002 which will
be paid by Xxxxxxxx pursuant to the payment provisions of the Prior
Agreement, this payment satisfies and is full payment for any and all
outstanding or unpaid amounts, fees charges or other sums Xxxxxxxx owes
or may owe for licenses, Deliverables and services received prior to
the Effective Date of this Agreement and for licenses, Deliverables and
services provided pursuant to this Agreement and the Prior Agreement.
Except for the payment required under the preceding sentence, any
amounts Xxxxxxxx may owe for Excess Support Fees pursuant to Section 8
or any amounts Xxxxxxxx may owe to license New Releases or receive
support services for New Releases, Xxxxxxxx shall not have any
obligation to pay any amounts, fees, charges, royalties or other sums
to Licensor and any previous sums owed and other liabilities of
Xxxxxxxx to Licensor or its affiliates are released and satisfied in
full hereby.
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a) Licensor will invoice Xxxxxxxx at the end of each calendar
quarter for any Excess Support Fees or licenses or support
services related to New Releases ordered by Xxxxxxxx related
to the previous calendar quarter and such amounts will be due
and owing thirty (30) days after Xxxxxxxx receives such
invoice. If Xxxxxxxx has failed to pay any sums owed hereunder
for the Excess Support Fees for more than 45 days after
written notice of the failure to pay has been given by
Licensor to Xxxxxxxx, then such unpaid sum shall accrue late
payment interest at the rate of the Prime Rate announced by
NationsBank in Atlanta, Georgia plus two (2%) percent per
annum, provided the interest rate shall not exceed the rate
permitted by law or 12%, whichever is less.
b) Xxxxxxxx shall pay and indemnify and save Licensor harmless
from all sales, commodity and other like taxes and
governmental charges applicable to the licenses granted and
services provided herein, except that Xxxxxxxx will not be
obligated to pay any Canadian taxes other than those due and
payable directly from the sale by Xxxxxxxx of a Sublicense to
a Customer.
10. [INTENTIONALLY OMITTED]
11. [INTENTIONALLY OMITTED]
12. MARKETING AND DISTRIBUTION LIMITATIONS. The Liberty Software may be
marketed and the Program Keys distributed only as part of the Xxxxxxxx
Software and Xxxxxxxx shall not integrate any part of the Liberty
Software into any other products or grant any sublicenses whatsoever to
use the Liberty Software except as it is integrated into the Xxxxxxxx
Software. Xxxxxxxx may market the Xxxxxxxx Software under any Xxxxxxxx'
trademark or product name selected by Xxxxxxxx, either alone or with
Licensor's trademarks for the Liberty Software, provided that any use
by Xxxxxxxx of Licensor's trademarks will be subject to any trademark
usage guidelines provided by Licensor to ensure that such trademarks
are protected and preserved as such. Nothing contained herein will be
deemed to give Xxxxxxxx any rights or ownership in the Licensor's
trademarks except the rights herein specified.
13. ACCEPTANCE OF NEW SOFTWARE. For New Releases and any New Products,
Xxxxxxxx shall ensure that all hardware on which the New Releases or
New Products are to be installed is in good operating order. Xxxxxxxx
will be deemed to have accepted that the New Releases or New Products,
as the case may be, operates in accordance with the documentation and
the mutually approved specifications therefore unless an officer of
Xxxxxxxx has, within 60 Days After Installation thereof in accordance
with the work order or development contract with respect thereto, given
written notice (a "Defect Notice") to Licensor that there are material
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delays, interruptions, data loss, errors or defects in the New Releases
or New Products, as the case may be with all particulars thereof. If
Licensor does not receive a Defect Notice by the end of 60 Days After
Installation then the New Releases or New Products will be deemed to be
accepted by Xxxxxxxx and all amounts payable, if any, by Xxxxxxxx
therefore will then be due and payable as provided for in an applicable
work order or development contract for New Products. If Licensor
receives a Defect Notice within 60 Days After Installation then:
a) Xxxxxxxx may continue using the previous version of the New
Releases or New Products and will cease all use of the New
Releases or New Products;
b) Licensor will continue providing all Support Services for the
previous version of the New Releases or New Products in
accordance with the applicable Support Services agreement
between Xxxxxxxx and Licensor; and
c) Licensor shall use its best commercial efforts to correct any
errors preventing the New Releases or New Products, as the
case may be, from operating in accordance with the
specifications therefore in the work order or development
contract for New Products, if any.
14. TERMINATION OF NEW PRODUCT RIGHTS. If a New Product is provided to
Xxxxxxxx pursuant to a statement of work under which Xxxxxxxx is
obligated to pay Licensor fees for the New Product (other than fees
related to support services), then if a New Product does not operate in
accordance with the specifications therefore within three months after
60 Days After Installation then Xxxxxxxx shall be entitled to elect to
terminate its right and any obligations to continue using such New
Products and if Xxxxxxxx so terminates its rights then Licensor shall
refund any sums pre-paid with respect to such New Product that has not
been credited to charges under this Agreement including interest owed
by Xxxxxxxx, except as otherwise provided for in the work order or
development contract for the New Product.
15. CUSTOM CHANGES. Xxxxxxxx may request that Licensor perform certain
development activities. In the event of such a request, Licensor agrees
to the following unless such actions would make it difficult for
Licensor to pursue its own development plans or make it difficult to be
competitive in its business:
1) Pay the Time and Material costs of Licensor to develop the new
products outside of their current Roadmap/Development
direction and Licensor will perform such development as
provided below.
2) If the timeframe does not meet Xxxxxxxx' requirements, then
Xxxxxxxx can request an escalation of the schedule and pay
Time and Material costs to release the new product earlier.
3) In the event that any of the products that Xxxxxxxx has paid
to develop are offered by Liberty to the market then Xxxxxxxx
will be reimbursed for the sums previously paid by Xxxxxxxx
for such development by Licensor paying to Xxxxxxxx each
Quarter a sum equal to twenty (20%) percent of the license fee
received by Licensor from licensing that software to the
market for the new product until the total sums paid by
Xxxxxxxx for such development have been paid in full.
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As provided above, Licensor will make changes to any of the Liberty
Software if Xxxxxxxx requests such changes provided that Licensor shall
not be requested to and will not change any of the Liberty Software
that would cause it to cease to be Standard Compliant. The cost of
changes to any existing Liberty Software and New Releases will be
charged to Xxxxxxxx at the lowest rates then charged by Licensor for
such work to its other customers, provided that Xxxxxxxx will not be
obligated to pay for changes required for the Liberty Software to
conform to the Documentation and the Mutually Approved Specifications
or required pursuant to the Support Services or warranty provisions of
this Agreement or the Support Services Schedule ("Time and Materials").
16. TRAINING. Licensor will provide, for the additional charges from time
to time agreed upon by both parties, training at the times and
locations requested by Xxxxxxxx for its employees and contractors in
the proper operation of the Liberty Software, the proper installation
and configuration of the Liberty Software by Xxxxxxxx' employees and
contractors and the proper support, maintenance, error correction,
problem resolution and end user training appropriate for Xxxxxxxx'
employees and contractors to maintain and train Xxxxxxxx' employees and
Customers. Xxxxxxxx agrees to reimburse Licensor for expenses or other
charges that have been previously approved in writing by Xxxxxxxx.
Xxxxxxxx will have the right to train additional personnel at its cost.
Licensor will, for the additional charges from time to time agreed upon
by both parties, provide Xxxxxxxx with all training manuals and
courseware (in all formats) that Licensor has available from time to
time. During the Term, Licensor will provide such training for the
charges of $2,000 per day or the then current training prices of
Liberty if less plus actual, reasonable travel expenses incurred by
Licensor in providing the training, provided that Xxxxxxxx will not be
required to pay for any expenses that are not substantiated by a
receipt.
17. REFERRAL FEES. Nothing herein shall prevent Licensor from directly
granting licenses to use or sublicense the use of the Liberty Software
to any parties. If Xxxxxxxx delivers a written notice to Licensor of a
prospective licensee in the Applicable Market that would be interested
in purchasing licenses for the Liberty Software, expressly excepting
Automated Data Processing Company (ADP) ("Prospect") and subsequently
Licensor does license the Liberty Software to such Prospect then
Licensor will pay to Xxxxxxxx a referral fee equal to three (3%)
percent of the total license fees paid by the Prospect to Licensor for
Liberty Software licenses, provided that if Licensor was already in
contact with that Prospect then Xxxxxxxx will only be entitled to a
referral fee if Xxxxxxxx introduced Licensor to a decision maker at the
Prospect who Licensor had not previously met.
18. TERM. The term of all licenses and sublicense granted hereunder shall
be perpetual and shall not be subject to expiration or termination for
any reason whatsoever. As to the support and other obligations under
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this Agreement, the term shall begin on the Effective Date and continue
for five (5) years thereafter. At least sixty (60) days prior to the
end of this Agreement, upon Xxxxxxxx' written request, Xxxxxxxx may
renew this Agreement for successive one (1) year periods and Licensor
will continue to provide the Support Services at the rates that
Licensor generally offers in the marketplace to its similarly situated
high-volume licensees. Regardless of the termination or expiration of
the Term, all of Xxxxxxxx' rights and licenses granted under this
Agreement are perpetual and shall not terminate for any reason
whatsoever.
19. XXXXXXXX COVENANTS. Xxxxxxxx will loan and deliver to Licensor upon
reasonable request:
a) one copy of the Xxxxxxxx Software and associated documentation
in the format specified by Licensor for use only in Licensor's
office for internal use only to provide Support Services to
Xxxxxxxx and for no other purposes; and
b) one (1) system of hardware and operating system that
replicates Xxxxxxxx' then current computing environment to
assist Licensor with support, maintenance and design
enhancements, provided that Xxxxxxxx will deliver such
equipment and hardware described in this sub-section within
thirty (30) days of full execution of this Agreement.
Upon Xxxxxxxx' written request, Licensor will return all copies of the
Xxxxxxxx' Software to Xxxxxxxx, and Licensor's obligation to provide
Support Services to Xxxxxxxx will terminate upon such return of the
Xxxxxxxx' Software.
20. WARRANTY. Licensor warrants to Xxxxxxxx that:
a) the Liberty Software is and any New Releases and New Products
will be free of material defects, bugs, viruses, time bombs,
disabling code, trojan horses, or errors that prevent or can
prevent it from operating in accordance with the Documentation
and the Mutually Approved Specifications in the 120 days after
Post GCA Installation in the Customer's site;
b) the Liberty Software is and any New Products will be
compatible with and will perform in accordance with the
Documentation and Mutually Approved Specifications in
conjunction with and on the same platform with the Compatible
Software and Hardware and the current data and data format of
Xxxxxxxx, provided that data format is fully and accurately
converted as provided in the Documentation and Mutually
Approved Specifications. Licensor will within a commercially
reasonable period after notice of any failure of the Liberty
Software, provided such notice is received by Liberty within
the 60 Days After Installation, correct such failure to
conform to the Documentation and the Mutually Approved
Specifications;
c) all responses and corrections by Licensor will be accomplished
in a commercially reasonable period of time in accordance with
the procedures set forth in the Support Services Schedule;
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d) Licensor will not make any changes to the Liberty Software in
a New Release that results in the Liberty Software released
earlier failing to operate or perform in accordance with the
Documentation and Mutually Approved Specifications in a manner
which adversely affects performance or compatibility in any
manner unless approved by Xxxxxxxx in a writing signed by a
duly authorized Vice President or President; and
e) the Source Code for the Liberty Software deposited from time
to time into escrow will compile into an object code version
that conforms to the foregoing warranty.
f) Licensor holds all rights necessary to grant the licenses and
benefits to Xxxxxxxx as set forth in this Agreement and that
execution of this Agreement does not breach or violate any
other agreement to which Licensor is a party.
THE WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES,
WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
21. [INTENTIONALLY OMITTED]
22. INFRINGEMENT. On being notified, Licensor will promptly investigate and
defend, at its expense, all Actions in which Xxxxxxxx, is made a
defendant or claimed potential defendant for any alleged infringement,
contributory infringement, inducement of infringement or unauthorized
or unlawful use of any patent, copyright, trademark, trade secret, mask
work, proprietary data or other information, or claim of right, title
or interest by another party in any Liberty Software, New Product or
Documentation, in any case resulting from the sale, use, lease or other
disposition of any Liberty Software under this Agreement
("Infringement"). In order to be entitled to the benefit of this
indemnity, Xxxxxxxx must: (i) provide Licensor with prompt written
notice of all details of the initial claim and lawsuit relating
thereto; (ii) permit Licensor the right to defend, appeal, compromise
or settle the lawsuit in the reasonable judgment of Licensor; and (iii)
provide Licensor with all available information, reasonable assistance,
authority and cooperation to enable Licensor to defend, appeal,
compromise or settle the lawsuit. Licensor will pay and discharge all
judgments or decrees rendered in any such Action against Xxxxxxxx to
the extent that the Liberty Software or any New Product is the cause
thereof. Licensor may settle any Action on terms and conditions of
Licensor's selection, provided they are not in conflict with the terms
of this Agreement and Licensor pays all settlement amounts. Xxxxxxxx
may participate in any Action at its expense, subject to the additional
rights described below. If Licensor fails to promptly investigate,
defend, appeal or settle, then Xxxxxxxx will, following written
notification to Licensor and the elapse of at least 30 days after such
notice is received by Licensor if during such time Licensor has not
taken reasonable steps to investigate, defend, appeal or settle the
matter, have the right from that time on to have sole control of the
defense of such Action and all negotiations for its settlement or
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compromise, and Licensor will pay, as they become due, all costs,
expenses, and reasonable attorneys' and experts' fees incurred by
Xxxxxxxx in undertaking such actions and any judgments or decrees which
may be rendered against or any settlements or compromises that may be
entered into by Xxxxxxxx relating to a claim indemnified against
hereunder to the extent that the Liberty Software or any New Product is
the cause thereof. Licensor indemnifies and agrees to hold harmless
Xxxxxxxx from all costs, expenses, liabilities, damages and attorneys'
and experts' fees arising from any alleged or actual Infringement and
will pay all judgments and other amounts payable on any settlement or
compromise arising from all Actions involving Infringement.
23. LIABILITY LIMITS. In no event xxxx Xxxxxxxx, or any of its officers,
directors, employees, shareholders or representatives be liable to
Licensor or any other party for any special, indirect, incidental,
exemplary or consequential damages, even if Xxxxxxxx has been notified
of the possibility or likelihood of such damages occurring, regardless
of the form of action, whether in contract, negligence, strict
liability, tort, products liability or otherwise. In no event xxxx
Xxxxxxxx' liability for any damages to Licensor or to any third party
in the aggregate ever exceed the amount of one hundred and fifty (150%)
percent of the aggregate license fees and other sums paid by Xxxxxxxx
hereunder, regardless of the form of action, whether in contract,
negligence, strict liability, tort, products liability or otherwise.
Licensor acknowledges and agrees that in no event shall Xxxxxxxx'
officers, directors, employees, shareholders or representatives be
liable to Licensor. The parties agree that these limits of liability
shall survive and continue in full force and effect despite any
termination or expiration of the Term.
24. OWNERSHIP. The License is not a sale of the Liberty Software,
Documentation or any copies thereof. Licensor retains all ownership of
the Liberty Software and the Documentation and all copies thereof
regardless of the form or media in which such copies may exist and
Xxxxxxxx only receives those rights to licenses to the Liberty Software
and Documentation as set forth herein. Xxxxxxxx will own any works
created by Xxxxxxxx; however, it is understood that this sentence will
not give Xxxxxxxx any ownership rights in the Liberty Software and
Documentation.
25. MARKS. Xxxxxxxx will not claim any trademarks, tradenames, logos or
other indicia of Licensor which indicate the source of the Liberty
Products or use any such marks in any manner inconsistent with the
guidelines published by Licensor. Licensor will not claim any marks of
Xxxxxxxx or use any such marks in any manner inconsistent with the
guidelines published by Xxxxxxxx. Licensor will be entitled to refer to
Xxxxxxxx as a user of Liberty Software in Liberty marketing materials,
provided that Xxxxxxxx first approves in writing in each case the
manner and form of the reference.
26. USER RESTRICTIONS. Xxxxxxxx will not make any attempts or assist any
third party in any way to translate, modify, adapt, disassemble,
decompile or reverse engineer the Liberty Software or create derivative
works based on the Liberty Software or Documentation except as
otherwise provided herein. Xxxxxxxx will use and distribute the Liberty
Software only in compliance with all applicable laws including the
export and import laws of United States. Licensor warrants that the
Liberty Software is not subject to any export or import restrictions or
tariffs of Canada.
Page 10
27. LIMITATION OF LIABILITY. The liability and obligations of Licensor
hereunder shall be limited as follows:
a) INFRINGEMENT CONSEQUENTIAL DAMAGES. In no event will
Licensor's liability to Xxxxxxxx or any other party for
special, indirect, incidental, exemplary or consequential
damages actually suffered by Xxxxxxxx as a result of
liabilities, obligations, indemnities and warranties under
Section 22 exceed 400% of the aggregate license fees and other
sums paid by Xxxxxxxx hereunder (the "Aggregate Fees"), even
if Licensor has been notified of the possibility or likelihood
of such damages occurring ("Licensor Has Been Notified").
b) INFRINGEMENT DIRECT DAMAGES. In no event will Licensor's
liability to Xxxxxxxx or any other party for direct damages,
liabilities, obligations, indemnities and warranties under
Section 22 that are not covered by clause (a) above ("Direct
Damages") exceed 500% of the Aggregate Fees, even if Licensor
Has Been Notified.
c) NO OTHER CONSEQUENTIAL DAMAGES. Except for any liability and
obligations related to personal injury, death or property
damages, in no event will Licensor have any liability
whatsoever to Xxxxxxxx or any other party for any special,
indirect, incidental, exemplary or consequential damages other
than those referred to in clauses (a) hereof.
d) OTHER DIRECT DAMAGES. Except for any liability and obligations
related to personal injury, death or property damages, in no
event will Licensor's liability to Xxxxxxxx or any other party
for any direct damages other than those referred to in clause
(b) hereof exceed 150% of the Aggregate Fees, even if Licensor
Has Been Notified.
e) FORM OF ACTION. The limitations herein shall be applicable
regardless of the form of action, whether in contract,
negligence, strict liability, tort, products liability or
otherwise.
f) SURVIVAL. The parties agree that these limits of liability
shall survive and continue in full force and effect despite
any termination or expiration of the Term.
g) DIRECTORS, OFFICERS ETC. NOT LIABLE. In no event will any of
Licensor's officers, directors, employees, shareholders or
representatives be liable to Xxxxxxxx or any other party for
any damages arising under this Agreement from any cause
whatsoever.
28. GOVERNING LAW. This license will be governed by the substantive laws of
the State of Ohio in the United Sates without regard to conflict of
laws provisions. The United States Convention on the International Sale
of Goods and the United Nations Convention on the Formation of
Contracts for the International Sales of Goods will not be applied to
this Agreement. This document is written in English and English is the
controlling language for the Agreement. Licensor will comply, in the
performance of this Agreement, with all applicable federal, state,
local and other governmental laws and regulations.
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29. SEVERABILITY. In the event a provision of this Agreement will be held
unenforceable, it will be deemed severable from the remaining
provisions and will in no way affect the validity or enforceability of
this Agreement.
30. ASSIGNMENT. Xxxxxxxx may not assign its rights without the consent of
Licensor, which will not be unreasonably withheld or delayed. Licensor
may not assign its rights without the consent of Xxxxxxxx, which will
not be unreasonably withheld or delayed. Notwithstanding the above,
either party may assign its rights in the event of a sale of all or
substantially all the assets or stock of the assignor or pursuant to a
merger or reorganization as long as the assignor remains liable and
obligated hereunder and the assignee assumes all liabilities and agrees
to perform all obligations hereunder.
31. NOTICES. Except as otherwise specifically provided herein, any notice
required or permitted to be sent by this Agreement will be in writing,
addressed, in the case of Xxxxxxxx, to the attention of the Legal
Department, and in the case of Licensor, to the attention of the Chief
Financial Officer, and will be (i) delivered by hand, (ii) sent by a
nationally recognized overnight courier, (iii) sent by fax to Xxxxxxxx
at 000-000-0000 or to Licensor at 000-000-0000 (if the receiving
machine confirms receipt through answerback and the sending machine
prints a paper copy of the answerback message), or (iv) mailed by
registered, certified mail or other pre-paid, receipted delivery
service, return receipt requested, to the address of the recipient set
forth in the first paragraph of this Agreement or such other address as
Xxxxxxxx or Licensor may give notice of to the other from time to time.
32. ENTIRE AGREEMENT. This Agreement and the attached Schedules constitute
the entire agreement of the parties and supersede any other agreement
or understanding, written or oral, that may have been made or entered
into with regard to the subject matter hereof by Licensor or Xxxxxxxx
including the Prior Agreement. Licensor agrees that no further sums are
owed by Xxxxxxxx pursuant to the interim letter agreement between the
parties dated November 25, 1998 or the Prior Agreement.
33. AMENDMENT. No provision of any communication or invoice sent by
Licensor will be effective to modify any terms of any order or this
Agreement. This Agreement may not be altered, amended or modified
except by formal agreement in writing signed by duly authorized
representatives of both parties, except as expressly provided herein.
Only a vice-president or higher officer of Xxxxxxxx can be an
authorized representative of Xxxxxxxx provided that Xxxxxxxx will on
request from Licensor provide Licensor with a list of the names of such
individuals.
Page 12
34. NO WAIVER. Any waiver or delay in the exercise by a party of its right
to enforce any provision of this Agreement for any breach by the other
party will not prejudice such party's right of enforcement for such
breach or any further, continuing or other breach by the other party.
35. NO LIMITATION. Neither this Agreement nor Licensor's responsibilities
hereunder will be construed as preventing or in any way limiting
Xxxxxxxx' right to acquire, develop, market, distribute, sublicense,
support or maintain, at any time, any products or parts similar or
related to or competitive with the Liberty Software, including by
purchase from any third party vendors or by development by Xxxxxxxx or
any third party on Xxxxxxxx' behalf. Xxxxxxxx will determine, in the
exercise of its sole discretion, the level, if any, of effort it will
exert to market or promote the Xxxxxxxx Software.
36. CONFIDENTIALITY. Except as permitted by this Agreement, neither party
will use the Confidential Information of the other. Each party will use
reasonable efforts, to the extent it does for its own proprietary and
confidential information of like nature, to prevent any Confidential
Information of the other party from being disclosed to third parties.
Xxxxxxxx and Licensor covenant not to use any Confidential Information
of the other except in the proper performance of its obligations under
this Agreement. This paragraph will not apply to any information which
is:
a) or becomes public knowledge through no wrongful act of the
receiving party;
b) already known to the receiving party;
c) rightfully obtained by the receiving party from any third
party without similar restriction and without breach of any
obligation owed to the disclosing party;
d) independently developed by the receiving party but not in
contravention of this Agreement;
e) furnished to a third party by the disclosing party without a
similar restriction on the third party's rights;
f) disclosed pursuant to a lawful requirement or request of a
governmental agency;
g) approved for release by written authorization of the
disclosing party; or
h) disclosed in an enforcement or defense in a court of law
pursuant to this Agreement or as is appropriate to assert and
protect the rights of either party.
Despite the restrictions of this paragraph, Xxxxxxxx will be entitled
to provide Licensor's Confidential Information to third party
contractors of Xxxxxxxx who have executed a written confidentiality
agreement, provided that Licensor is expressly stated to be a
beneficiary of such confidentiality agreement and Xxxxxxxx provides
Licensor with copies of all such confidentiality agreements forthwith
after they are executed. If Licensor refers to Xxxxxxxx in any of
Licensor's promotional material in any media then Licensor xxxx
Xxxx 13
strictly comply with any restrictions or standards applicable to the
use of Xxxxxxxx' name or trademarks that Xxxxxxxx may specify. Licensor
will not use Xxxxxxxx'x name or any of its trademarks, service marks,
trade names or logos, except with the express prior written consent of
Xxxxxxxx to the specific use. The provisions of this Section shall
survive for any trade secret for so long as such information qualifies
as a trade secret under applicable law and for five years following
initial disclosure of the applicable Confidential Information that does
not rise to the level of a trade secret. Licensor and Xxxxxxxx each
acknowledges that all information concerning the other party, its
business plans, proprietary rights, customers and suppliers will be
deemed Confidential Information of such other party.
37. CONFIDENTIALITY REGARDING SPECIFIC INFORMATION. Licensor acknowledges
that it may from time to time have access to confidential information
of Xxxxxxxx and Customers including Xxxxxxxx' methods of providing
installation, implementation and related services for any and all
computer hardware, software, peripherals and other products connected
to or associated with the Xxxxxxxx' Software or hardware products
(collectively and individually the "Xxxxxxxx Confidential
Information"). Licensor agrees that all information regarding the
Xxxxxxxx Confidential Information is Confidential Information for
purposes of this Agreement.
38. NO PARTNERSHIP. Xxxxxxxx and Licensor hereby confirm that the
relationship between them is that of independent contractors and they
are not and do not intend to be partners or joint venturers and that
neither party has any authority or right to contract in the name of or
on behalf of the other party.
39. NO SOLICITATION. Neither party will solicit for employment the
employees of the other party hereto using knowledge about that employee
or contact with that employee that was obtained through the performance
of this Agreement. Nothing herein will prohibit either party from
hiring any employees of the other party unless such employees were
solicited by personnel who knew of that employee because of performance
pursuant to this Agreement.
40. AFFILIATE OBLIGATIONS. Xxxxxxxx will (i) advise Licensor of all
Affiliates who are using or distributing the Liberty Software, and (ii)
take commercially reasonable steps to ensure that all Affiliates who
are using the Liberty Software will observe all the terms and
conditions of the license and all covenants related thereto. Xxxxxxxx
shall indemnify Liberty from the damages resulting from default of any
obligations of this Agreement by any of its Affiliates, provided
Licensor gives Xxxxxxxx prompt notice of such default and opportunity
to defend and cure the default.
41. CURRENCY. All references to dollars are to the currency of the United
States.
42. [INTENTIONALLY OMITTED]
43. INVESTMENT. Within five (5) business days after the Effective Date: (a)
Xxxxxxxx shall loan $500,000 to Licensor's parent company, General
Automation, Inc. ("GA") by wire transfer of immediately available
funds; and (b) GA shall execute an unsecured promissory note in favor
of Xxxxxxxx in the original principal amount of $500,000 and containing
Page 14
the following terms: (i) interest at the rate ten percent (10%) per
annum prior to maturity and fourteen percent (14%) per annum after
maturity; (ii) mandatory conversion into securities of GA and or its
affiliates issued as part of an arms length capital-raising by GA in an
amount of at least $500,000 (exclusive of the converted Xxxxxxxx note)
which is anticipated to close not more than 60 days after the Effective
Date; and (iii) other customary terms for investments of this amount
and type ("the Investment"). The licenses and other rights granted to
Xxxxxxxx under this Agreement shall be effective as of the Effective
Date and shall not be conditioned upon closing of the Investment.
IN WITNESS WHEREOF Xxxxxxxx and Licensor have executed and delivered this
Agreement by their respective duly authorized signatories as of the date first
above written.
LIBERTY INTEGRATION SOFTWARE THE XXXXXXXX AND XXXXXXXX COMPANY
By: By:
---------------------------------- ---------------------------------
Title: Title:
Date: Date:
-------------------------------- --------------------------------
Page 15
SCHEDULE 1
DEFINITIONS
In addition to definitions set out in the Agreement, the following terms have
the meanings set forth below for purposes of this Agreement and all Schedules
thereto and ancillary documents:
1. "60 Days After Installation" means, with respect to any software
provided by Licensor hereunder, the period between the date of
completion of Post GCA Installation of such software in accordance with
the applicable specifications and terms of delivery and the 60th day
thereafter.
2. "Actions" means any bona fide allegations, claims, suits, cause of
action, arbitrations, actions, or proceedings.
3. "Affiliates" means any wholly-owned subsidiaries of Xxxxxxxx and any
subsidiaries in which Xxxxxxxx owns at least twenty (20%) percent of
the voting equity interests, but only while and as long as it remains
so owned by Xxxxxxxx.
4. "Applicable Market" means the market for:
a) the retail sale, short term rental or extended term lease of
new or used automobiles, pickups, trucks, trailers, vans and
other vehicles ("other vehicles" to include motorcycles and
other power sports equipment and recreational vehicles) or the
repair or sale of replacement parts, tires, batteries and
automotive accessories for new or used automobiles, pickups,
trucks, trailers, vans or other vehicles; or
b) the distribution of new or used automobiles, pickups, trucks,
vans and other vehicles; or
c) the manufacture of new or used automobiles, pickups, trucks,
vans and other vehicles.
5. "Compatible Software and Hardware" means the software and hardware
described in Schedule 4.
6. "Confidential Information" of a party means the party's trades secrets
under applicable law and any proprietary or confidential information
disclosed to the other party in confidence, whether or not marked
"CONFIDENTIAL".
7. "Critical Error" means an error that causes the Liberty Software or any
New Product to produce materially incorrect results or to cease or
delay program operation in such a manner as to have a materially
adverse impact on the use of the Liberty Software or New Product in the
user's business, including, without limitation, errors that cause it to
"hang" or "crash".
8. "Customers" means the customers of Xxxxxxxx who are granted Sublicenses
to use the Xxxxxxxx Software.
9. "Deliverables" means the Golden Master CD-ROMs of the Liberty Software,
Documentation (in hard copy printed form similar to that form delivered
by Licensor to its customers) and the program and documentation
therefore explaining the logic to produce the software key which
permits the Liberty Software to be operable by Customers.
10. "Documentation" means all documents described in Schedule 3.
11. "Escrow Agent" means the party is the assignee of the Source Code
Escrow Agreement between Xxxxxxxx and Licensor (the original escrow
agent, Fort Xxxx, having since assigned its rights).
12. "Liberty Software" means the software products in object code
executable form only described in Schedule 3 and all New Releases and
modifications thereto developed or marketed by Licensor, in all cases
as provided by Licensor unmodified by any other party including
Xxxxxxxx.
13. "Licensor" means Liberty Integration Software, Inc.
14. "Mutually Approved Specifications" means the specifications and
Xxxxxxxx requirements attached and/or described in Schedule 6 and such
additional specifications as may be added thereto with respect to any
New Releases or New Products.
15. "New Liberty Software" means all software licensed by Licensor to the
market that implements a standard that is published by a recognized
standards group or industry leader. Such software must be considered a
follow on or alternative to the Liberty Software, for example ODBC and
OLEdb, except that New Liberty Software will not include the software
developed by Licensor and known as "Liberator."
16. "New Products" means object code executable files for any custom
software products prepared for Xxxxxxxx by Licensor delivered hereunder
or pursuant to any work order or development contract between Xxxxxxxx
and Licensor.
17. "New Releases" means object code executable files for: (a) all present
and future versions, releases, enhancements, error corrections and
updates for any portion of the Liberty Software and Program Key
Software released by Licensor; (b) subject to the condition stated
therein, New Liberty Software; and (c) any new Products that have
substantially new functionality, even if such products are based on or
otherwise include the Liberty Software or functionality or features
included in the Liberty Software or Program Key Software.
2
18. "Post GCA Installation" means that the particular version of the
Xxxxxxxx Software referred to has been released by Xxxxxxxx'
engineering department and has been through a pilot test lasting not
more than 90 days and has, subsequent to the pilot test, been installed
at the site of any Customer that was not involved in the pilot test or
continues to be used by a Customer that was involved in the pilot test.
19. "Program Key" - is defined in Section 2 of this Agreement.
20. "Program Key Software" - is defined in Section 2 of this Agreement.
21. "Xxxxxxxx" means The Xxxxxxxx and Xxxxxxxx Company and its Affiliates.
22. "Xxxxxxxx Software" means the software products and data structures
marketed by Xxxxxxxx and Affiliates related to the product line (and
related services) commonly referred to as the ERA system as it may be
updated from time to time (including without limitation any changes to
the name of the ERA product line or changes to the hardware platform).
23. "Xxxxxxxx' Customer License" means the standard form license agreement
entered by Xxxxxxxx with its Customers for use of the Xxxxxxxx
Software, provided that Xxxxxxxx shall give prior written notice to
Licensor of changes that materially reduce the protection of Licensor.
24. "Source Code" means the human readable programming software code and
other forms of software programming code that can be compiled or
converted into machine executable object code versions of the user
loadable programs and the programmers' flow charts, comments and notes
to all such code, software and related materials and any modifications,
revisions, enhancements, error corrections, upgrades of or replacements
for such items in all printed, electronic and other forms.
25. "Standard Compliant" with respect to a program means that the program
conforms to the published Open Database Connectivity standard or the
published Java Database Connectivity standard.
26. "Sublicense" means the right of a Customer to use the components of the
Liberty Software that are integrated into the Xxxxxxxx Software
pursuant to a Xxxxxxxx' Customer License and the applicable Program
Key..
27. "Support" means support and maintenance services to be provided by
Licensor pursuant to this Agreement as described in the Support
Services Schedule.
28. "Term" shall have the meaning set forth in Section 18.
3
SCHEDULE 2
[INTENTIONALLY OMITTED]
SCHEDULE 3
[INTENTIONALLY OMITTED]
SCHEDULE 4
[INTENTIONALLY OMITTED]
SCHEDULE 5
[INTENTIONALLY OMITTED]
SCHEDULE 6
[INTENTIONALLY OMITTED]
SCHEDULE 7
[INTENTIONALLY OMITTED]
EXHIBIT A
---------
FEES TO BE PAID BY LICENSEE FOR THE FIRST FULL YEAR AFTER THE DATE OF THIS
AGREEMENT SHALL BE AS FOLLOWS:
Non-standard Agreement $____
Initialization fee $____
Maintenance/Storage fee $____
Maintenance/Storage fee (foreign license) $____
Registration fee $____
Product Updates $____
FEES TO BE PAID BY LICENSEE FOR THE SECOND FULL YEAR AFTER THE DATE OF THIS
AGREEMENT SHALL BE AS FOLLOWS:
Maintenance/storage fee $____
Maintenance/storage fee (foreign license) $____
Registration fee $____
Product Updates $____
PAYABLE BY LICENSEE TO FORT XXXX
Release of SOURCE CODE
At PRODUCER'S request $____
At LICENSEE'S request $____
Thereafter, fees shall be subject to the then-current pricing of Fort Xxxx,
provided that such prices shall not increase by more than 10% per annum from the
prices as set forth above.
EXHIBIT B
---------
Company Name
-------------------------------
Product Name
--------------------------------
Version # Date:
---------------------------------- ---------------------
Description of Materials Deposited:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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EXHIBIT C
SOURCE CODE COPY LICENSE ("SOURCE AGREEMENT")
I. LICENSE.
A. In the event that the SOURCE CODE COPY shall be delivered out
of escrow to LICENSEE pursuant to the terms of the AGREEMENT,
PRODUCER hereby grants to such LICENSEE and its contractors a
limited, non-exclusive, non-transferable license to all
license rights granted under the license agreement previously
granted by PRODUCER to LICENSEE and also to use, modify,
support, compile, correct, maintain and update the SOURCE CODE
COPY in such respects as may be necessary or appropriate for
LICENSEE and its contractors to exercise the rights and
licenses granted to it in the License and Warranty, which
rights and licenses shall survive the termination of that
agreement solely as set forth in that agreement.
Notwithstanding the foregoing or anything in the Agreement or
Exhibits thereto, under no circumstances may the SOURCE CODE
be distributed, sold, licensed, leased, or otherwise
transferred, by any means or in any form; and the SOURCE CODE
may be disclosed only as set forth in Section II.B. hereof.
B. LICENSEE may make a limited number of copies of the SOURCE
CODE COPY as necessary to exercise the license granted herein
and for archival purposes, provided LICENSEE reproduces
PRODUCER's proprietary notice and confidentiality legends on
all such copies. LICENSEE shall not alter, remove, modify,
obscure or suppress any proprietary notices or confidentiality
legends placed on or contained within the SOURCE CODE COPY.
C. This license does not provide LICENSEE with title or ownership
of the SOURCE CODE COPY, but only a limited right to use the
SOURCE CODE COPY as provided herein. Any use of the SOURCE
CODE COPY not expressly provided for in this LICENSE AGREEMENT
is prohibited.
II. CONFIDENTIALITY.
A. LICENSEE acknowledges that the SOURCE CODE COPY is a
commercially valuable proprietary product of PRODUCER, the
design and development of which reflect the effort of skilled
development experts and the investment of considerable time
and money. LICENSEE acknowledges that the SOURCE CODE COPY
contains substantial trade secrets of PRODUCER which PRODUCER
shall entrust to LICENSEE in confidence to use and copy only
as expressly authorized by this SOURCE AGREEMENT. LICENSEE
further acknowledges that PRODUCER claims and reserves all
rights and benefits afforded under federal copyright law in
the SOURCE CODE COPY. Any copying or distribution of such
copyrighted work not expressly authorized by this SOURCE
AGREEMENT is strictly forbidden.
B. In addition to those limitations on LICENSEE'S rights set
forth above, LICENSEE shall not at any time disclose or
disseminate the trade secrets embodied in the SOURCE CODE COPY
to any third party. Notwithstanding the foregoing, LICENSEE
may disclose the SOURCE CODE COPY only to those of its full
time employees who need the SOURCE CODE COPY in the
performance of duties in full accordance with this LICENSE
AGREEMENT, but only after LICENSEE shall have (i) informed the
recipient of the confidential and proprietary nature of the
SOURCE CODE COPY, (ii) instructed the recipient to keep the
SOURCE CODE COPY confidential, and (iii) received from the
recipient a duly executed copy of any agreement restricting
recipient's disclosure and use of the SOURCE CODE COPY in a
manner consistent with the restrictions set out in this SOURCE
AGREEMENT. Under no circumstances may LICENSEE disclose or
disseminate such trade secrets to any competitor of PRODUCER.
LICENSEE shall devote its best efforts to ensure that all
persons afforded access to the SOURCE CODE COPY protect
PRODUCER's trade secrets against unauthorized use,
dissemination or disclosure.
C. As used herein, the term, "trade secrets," shall mean any
information of PRODUCER which (a) derives economic value,
actual or potential, from not being generally known to and not
being readily ascertainable by proper means by, other persons
who can obtain economic value from its disclosure or use, and
(b) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
III. NO WARRANTIES. WITH REGARD TO THE SOURCE CODE COPY PROVIDED TO LICENSEE
HEREUNDER, PRODUCER MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING
BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
IV. GENERAL.
This LICENSE AGREEMENT represents the complete and exclusive statement
of the mutual understanding of the parties with respect to the subject
matter hereof and supersedes and cancels all previous and
contemporaneous written and oral agreements and communications relating
to the subject matter of this SOURCE AGREEMENT. This SOURCE AGREEMENT
shall be governed by, interpreted and construed in accordance with the
laws of the State of Georgia, without giving effect to that body of law
known as conflict of laws. If any provision of this SOURCE AGREEMENT is
held invalid by a court of competent jurisdiction, such invalidity
shall not affect the enforceability of any other provisions contained
in this SOURCE AGREEMENT and the remaining portions of this SOURCE
AGREEMENT shall continue in full force and effect.
