Exhibit 10.5
SPSS INC.
LICENSE AGREEMENT
This License Agreement (the "Agreement"), between, SPSS Inc., a
Delaware Corporation located at 000 X. Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000
("SPSS") and Accurate Assessments, Inc., an Iowa Corporation located at 0000
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxxxxx 00000 ("AA"), is entered into this
30th day of June, 1999 the effective date.
WHEREAS, AA wishes to license, reproduce and distribute the software
described in this Agreement in conjunction with AA's own software products,
including but not limited to certain software developed, marketed and/or sold
under the name Root Cause Analyst; and
WHEREAS, SPSS is willing to enter into this Agreement with AA under
the terms and conditions set forth below;
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto agree to the
following terms and conditions.
1 DEFINITIONS
1.1 "SOFTWARE" means those discrete components of allCLEAR version 4.5
software as set forth in the Exhibit together with any upgrades or
enhancements that may be available from SPSS from time to time.
1.2 "Perpetual Single-User License" means a fully-paid up right for the
software to be installed on a single stand alone computer, not a network or a
server. The right to use is only taken away by a violation of the license
agreement.
2 GRANT
2.1 Subject to the provisions contained herein, SPSS grants to AA a
non-exclusive worldwide license to reproduce, use, sell, distribute, or
otherwise dispose of, new Perpetual Single-User Licenses of the SOFTWARE in
object code form in conjunction with AA's own software products including but
not limited to certain software developed, marketed and/or sold under the
name Root Cause Analyst.
2.2 Within fifteen (15) working days of the signing of this Agreement
SPSS shall provide AA with appropriate master media incorporating the
SOFTWARE. AA hereby covenants and agrees to (i) immediately stop using this
master and return it to SPSS upon termination of the Agreement, and (ii)
protect the master from theft or reproduction in the same manner as AA would
protect any material proprietary to AA that AA considers valuable and
confidential. For the avoidance of doubt AA hereby acknowledges and agrees
that SPSS is the owner of the master and retains all title and ownership
rights to the SOFTWARE and the copyright therein.
3 SUPPORT
3.1 AA shall provide direct technical support to all organizations that
purchase licenses of the SOFTWARE from AA.
3.2 SPSS shall provide a sufficient number of personnel to provide
"second-tier" support (including operating suggestions and troubleshooting
skills) to AA's technical support personnel in their efforts to support the
SOFTWARE, Monday through Friday (excluding SPSS company holidays) between the
hours of 9:00 through 5:00 PM, Central Standard Time.
4 PAYMENTS AND AUDIT RIGHTS
4.1 On the effective date there will become due to SPSS from AA the
non-refundable sum of fifty thousand U.S. dollars ($50,000) in payment for
the rights granted under 2.1 in respect of 625 copies of the SOFTWARE. This
amount will be paid as
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follows: (1) $25,000 on or before September 30, 1999 and (2) $25,000 on or
before December 31, 1999.
4.2 For each additional copy after the 625th copy of the SOFTWARE that
is used, sold, distributed or otherwise disposed of by AA, AA shall pay SPSS
a royalty of eighty U.S. dollars ($80).
The royalty shall be increased each calendar year in proportion to the
increase (if any) in the index last published prior to the effective date of
this Agreement and that last published prior to January 1 of each year of the
Agreement. If there is a decrease in the index, the royalty required to be
paid shall be as set forth in this Agreement and shall not be decreased by
any amount. The index used shall be the U.S. City Average All Urban Consumer
Price Index (all items) published by the Department of Labor or if that index
shall cease to be published, the nearest index having like effect.
4.3 AA shall keep true and detailed accounts and records of SOFTWARE
used, sold, distributed or otherwise disposed of. Within five (5) business
days of the end calendar quarter, AA shall (i) provide SPSS with a report
that contains the number of copies of SOFTWARE used, sold, distributed or
otherwise disposed of, together with the name, address, phone and, if
available, the facsimile and email address of the licensee, and (ii) send
with the report the amount, if any shown to be due to SPSS, in accordance
with 4.2 above.
SPSS understands that AA must protect its proprietary information, including
its customer base, and therefore SPSS agrees that it may not use the
information provided by AA pursuant to this Section 4.3 for any purpose other
than to verify the number of copies of SOFTWARE used, sold, distributed or
otherwise disposed of. If SPSS uses the information for any other purpose,
then AA may terminate the Agreement immediately and shall not be obligated to
make any payments then due to SPSS, notwithstanding the provisions of Section
5.3 of the Agreement.
4.4 In order to maintain the license granted under this Agreement, AA
shall be required to use, sell, distribute or otherwise dispose of SOFTWARE
in sufficient numbers to obligate AA to pay to SPSS a royalty in the amount
of one hundred thousand U.S. dollars ($100,000) by September 30, 2000 and
thereafter one hundred thousand U.S. dollars ($100,000) in each subsequent
year by September 30 of each such year.
4.5 All payments shall be made in U.S. currency and shall be made by
check, money order, or wire transfer to such financial institution and
account number as may be specified by SPSS from time to time, or by such
method as SPSS may specify in writing. When making any payment required
pursuant to the terms of this Agreement, AA shall pay all taxes, if any,
required to be paid thereon pursuant to the laws of the United States or any
other government having competent jurisdiction. Such payments shall be made
without deduction, other than such amounts as AA is required to deduct or
withhold by law. For the avoidance of doubt, and without limiting the
generality of this paragraph 4.4, no deduction shall be taken for taxes,
fees, bank charges or other costs or duties applicable to the amounts payable
to SPSS. In respect of any deduction required by law, AA shall use all
reasonable endeavors to assist SPSS to claim recovery or exemption under any
double taxation or similar agreement and AA shall provide SPSS with evidence
of all sums paid or deducted pursuant hereto.
4.6 Any payment required hereunder that is made late (including unpaid
portions if incomplete payments) shall bear interest at the prime rate as
publicly announced from time to time, plus two (2) percentage points. The
parties also agree as follows:
(a) Any payment received more than thirty (30) days after becoming due
shall be deemed "late" for purposes of this paragraph; and
(b) Any interest charged or paid in excess of the maximum rate permitted
by applicable law shall be deemed the result of a mistake and shall
be refunded to AA.
4.7 If a payment due SPSS is more
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than thirty (30) days past due; 1) SPSS shall have a right to suspend their
obligations hereunder, and 2) AA's rights set forth in Section 2.1 shall be
suspended until the amount past due is paid in full.
4.8 SPSS shall have the right to audit or have audited once per calendar
year upon ten (10) business days prior written notice to AA, such books and
records of AA as may be necessary to verify the reports referred to in
paragraph 4.2 and to satisfy SPSS that the royalty and other payment
provisions of this Agreement are being complied with. If the verification
discloses any underpayment to SPSS of more than five per cent (5%) of the
amount due then AA shall promptly reimburse SPSS for the costs of such audit.
Provided however, that should AA dispute the results of any such audit. AA
may cause to be conducted an independent audit, at AA's expense, to verify
the audit performed by or on behalf of SPSS. If AA's audit discloses that any
alleged underpayment did not exceed five per cent (5%), then AA shall not be
obligated to reimburse SPSS for the costs of SPSS' audit.
5 TERM AND TERMINATION
5.1 This Agreement shall become effective upon signing by AA and SPSS and
shall run until December 31, 2000. Thereafter this Agreement shall
automatically renew for additional one (1) year terms unless either party
gives written notice to the contrary at least forty-five (45) days before the
anniversary date.
5.2 SPSS or AA may terminate this Agreement upon written notice if the
other party violates any of the provisions of this Agreement and fails to
correct the violation with thirty (30) days following a written notice
specifying the breach.
5.3 In addition either party may terminate this Agreement for any reason
upon sixty (60) days prior written notice to the other party.
5.4 Upon termination of this Agreement, AA shall pay promptly any
amounts which may be due in accordance with Section 4.0 above. AA shall have
a right to retain one (1) copy of the SOFTWARE, at each of AA's locations,
for the purpose of providing technical support to AA's customers.
6 WARRANTIES
6.1 SPSS and AA warrant that they have a right to enter into this
Agreement.
6.2 The media on which the SOFTWARE is furnished is warranted to be free
of defects in workmanship and material under normal use for a period of sixty
(60) days from the date of shipment by SPSS. The sole responsibility of SPSS
and AA's exclusive remedy under this warranty will be to receive a
replacement of the media.
6.3 SOFTWARE IS LICENSED "AS IS" WITHOUT WARRANTY AS TO ITS PERFORMANCE,
EXCEPT FOR THE MEDIA WARRANTY PROVIDED ABOVE. THERE ARE NO WARRANTIES
EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL SPSS
BE RESPONSIBLE FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES OR LOST PROFITS,
EVEN IF SPSS HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
6.4 SPSS agrees to defend, or settle at its option, any action against
AA arising from a claim that the SOFTWARE infringes any patent or property
right, provided that i) SPSS is promptly notified of such action and is given
control over the defense or settlement thereof, ii) infringement is not
caused by a modification made to the SOFTWARE by AA, and iii) the charge of
infringement has not arisen from the use of the SOFTWARE in combination with
other hardware or software components where it is the combination with is
charged to infringe. SPSS shall at its option and expense secure for AA the
right to continue selling licenses of the SOFTWARE or replace or modify it so
that it becomes non-infringing.
7 INDEMNIFICATION AND COVENANTS
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7.1 Subject to SPSS' obligations under Section 6.4 above, AA shall
indemnify and agree to hold SPSS harmless from and against any and all
losses, expenses, suits and demands brought by any third party arising out of
any claim relating to; (i) AA's products or services, or (ii) AA's
obligations pursuant to this Agreement. SPSS shall promptly notify AA in
writing of such action and give AA authority, information, and assistance for
the defense of any such suit or proceeding.
7.2 AA agrees to make no representations, warranties, or guarantees to
customers, prospective customers or other third parties with respect to the
specifications, features, or capabilities of the software in SOFTWARE that
are inconsistent with or in addition to the literature distributed or
approved by SPSS (including all warranties and disclaimers contained in such
literature).
8 SERVICES PROVIDED BY SPSS
8.1 SPSS shall provide an appropriate SPSS training course for six
individuals nominated by AA at a time and location to be mutually agreed.
This training will be at no cost to AA except for any travel expenses that
may be incurred.
8.2 SPSS shall provide AA with one (1) set of marketing materials to
assist AA in their effort to market the SOFTWARE. Such materials may consist
to positioning information, feature-benefit grids for the SOFTWARE, logos,
screen captures and SOFTWARE demos. AA shall be charged the same price SPSS
charges its offices for any additional copies of the marketing materials
needed.
8.3 SPSS shall provide AA with any material developed by SPSS that may
assist AA in their effort to integrate the SOFTWARE in AA's software
product(s).
8.4 SPSS shall provide AA, on an annual basis, with any information in
regards to SPSS' plans for the SOFTWARE.
8.5 The parties shall jointly announce the relationship via a press
release at a mutually agreed to time and to post information about the
relationship on the SPSS Web site.
8.6 AA shall have a right to use relevant SPSS trademarks, logos and
trade names while promoting the SOFTWARE. AA shall follow SPSS corporate
standards in their use of such items. If SPSS determines that a standard was
not followed, SPSS shall have the right to request AA to stop using the
promotional piece immediately and redo it at AA's own expense.
9 AA OBLIGATIONS
9.1 AA shall use all commercially reasonable efforts to promote and
market the SOFTWARE.
9.2 AA shall provide SPSS with two (2) copies of any material developed
by AA promoting SPSS or the SOFTWARE.
9.3 Neither AA nor SPSS shall, without the prior written consent of the
other party, recruit or hire any personnel of the other party for the term of
this Agreement and an additional six (6) months after this Agreement has
expired.
9.4 AA shall clearly and properly xxxx the documentation, packaging or
literature relating to the AA software which incorporates the SPSS SOFTWARE,
in a manner consistent with applicable laws and regulations, so as to
indicate the existence of the copyright in the SOFTWARE and that the
copyright is licensed from SPSS. Such marking shall be in such form as the
parties agree in writing prior to the use of such form.
10 GENERAL PROVISIONS
10.1 AA agrees that this Agreement and the SOFTWARE may not be assigned
or transferred, except as provided herein, without the written consent of
SPSS.
10.2 Except as otherwise expressly stated herein, the General Terms and
Conditions set forth above and the Exhibit constitute the entire, final and
exclusive
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understanding and agreement between the parties, pertaining to the subject
matter hereof and supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions whether oral or written, of the
parties. The provisions of these General Terms and Conditions may not be
amended or supplemented in any way except by written agreement executed by
both parties hereto.
10.3 Nothing contained in this Agreement, nor any action taken by any
party to this Agreement, shall be deemed to constitute AA (or any of AA's
employees, agents, or representatives) an employee, agent, or legal
representative of SPSS, nor to create any, joint venture, association, or
syndicate among or between the parties, nor to confer on AA any express or
implied right, power or authority to enter into any agreement or commitment
on behalf of (nor to impose any obligation upon) SPSS.
10.4 The formation, operation and performance of this Agreement shall be
governed, construed, applied and enforced in accordance with the laws of
State of Illinois. The parties consent and agree that all cases, claims, and
controversies based upon this Agreement shall be adjudicated only in an
Illinois court located in Northern Illinois. Each party consents to the
jurisdiction of such courts over any such case, claim or controversy, to such
courts being the proper venue therefore, and to the jurisdiction of such
courts over each of the parties.
10.5 Each party shall keep confidential and shall not appropriate for its
own use, reveal, or disclose to anyone, except as necessary to fulfil a
party's obligations hereunder, any confidential information of the other
which may become known to it prior to or during the term of this Agreement.
Each party agrees to take necessary and prudent steps to protect and maintain
the confidentiality of any such confidential or proprietary information of
the other. "Confidential or proprietary information" shall mean any
information maintained as confidential by the other which is not publicly
known and not lawfully available without restriction from a third party. In
particular, any Confidential Information received as a result of this
Agreement is considered "insider information" and shall not be used by the
recipient or communicated to another person for the purpose of obtaining a
gain or avoiding a loss in transacting SPSS securities or the securities of
another public company. Upon termination of this Agreement, AA and SPSS will
each return the other's confidential information.
IN WITNESS WHEREOF, the parties, by their duly authorized
representatives, have executed this Agreement as of the day first above
written.
SPSS INC.: ACCURATE ASSESSMENTS INC.:
BY: /s/ Illegible BY: /s/ Xxxxxxx X. Xxxxx
-------------------------- -------------------------------
Authorized Signature Authorized Signature
/s/ Illegible Xxxxxxx X. Xxxxx
----------------------------- -----------------------------------
Printed Name Printed Name
Legal Counsel CEO
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Title Title
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EXHIBIT
SOFTWARE
SPSS allCLEAR version 4.5 with the following amendments.
CHANGES:
1 Remove the left-to-right and bottom-up orientations leaving only the
top-down and right-to-left orientations available. (Button bar and
diagram properties).
2 Remove the "Change Artist" button/function. Default to "Dali"
3 Remove the "Rebuild" button/function.
4 Remove the "Attachments" functionality from every place it is found.
5 Remove access to "Data Fields" and "Notes".
6 Remove "Slanted" and "Curved" options and default all connections to
right-angle.
7 Remove "IF"/"CASE"/"LOOP" button and macro options from the toolbar and
other places they may reside.
8 Remove "Deployment" option from all places where it resides "Insert" and
"Format" specifically.
9 Remove "Picture" and "Object" option from the "insert" menu.
10 Remove from the Right-Click menu (with a specific box selected): Box
Information, Launch, and Select "Glued Object".
11 There will only be three templates-1) Blank, 2) Standard Flow Chart, and
3) RCA which is the custom template.
12 Under Edit "Diamond defaults" Cluster layout, remove the IF and CASE
layout sets (purple diamond and green oval). Also remove these from the
Diagrammer dialog. In the latter case the shapes portion of the dialog
should be retained (leave the yellow and blue).
BUG FIXES:
1. Fix problems with fonts that extend beyond borders of boxes. Also, when
non-default fonts are used, text is grayed-out and the color cannot be
changed.
2. Fix Shadow and Cascade so that they work together as they did in
previous versions.
3. Fix large diagrams limitation on the number of lines brought to the
forefront. When boxes have a cascade border (width of 2) and there are a
large number of them, some of them cannot be brought to front. This
means that some of the arrowheads are obscured.
4. In the diagram properties box "Space between line" cannot be increased
above 0.14 inches.
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