***Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 230.406
SOFTWARE LICENSE AGREEMENT
This Software License Agreement ("Agreement") entered on September 23,
1998 by and between ASSIST CORNERSTONE TECHNOLOGIES, INC., ("ASSIST") and
000.XXX, Inc., ("LICENSEE").
RECITALS
WHEREAS, ASSIST owns and desires to license its computer software and
related documentation; and
WHEREAS, LICENSEE desires to obtain a non-exclusive license to use
ASSIST'S computer software and related documentation.
NOW, THEREFORE, the parties intending to be legally bound agree as follows:
1. DEFINITIONS. When used in this Agreement, these terms shall have the
following meanings:
(a) LICENSED SOFTWARE means the software delivered to LICENSEE in
accordance with the terms of this Agreement and described as
follows:
General Lodger, Accounts Payable, Accounts Receivable, Purchasing,
Order Entry, Catalogue, Inventory, Sales Analysis, and EIS.
(b) RELATED DOCUMENTATION means reference manuals which provide field
by field descriptions for each software module licensed,
2. WARRANTY ASSIST warrants that each item of Software and any upgrade is
free from defects in workmanship and material and shall function
substantially as described in the Related Documentation for a period
of [...***...] from the date the Software item or upgrade is shipped
by ASSIST.
ASSIST hereby represents and warrants that the Software is year 2000
ready. By year 2000 ready, we mean that the Software, when used in
accordance with the Related Documentation, is capable of correctly
processing, providing and/or receiving date data within and between
the 20th and 21st centuries, provided that all products ( including
hardware, software, and firmware ) used with the Software properly
exchange accurate date data with it.
If any item of Software fails to so function during its warranty period, ASSIST
will provide a suitable fix, patch or workaround for the problem or replace the
item. THE FOREGOING WARRANTIES AND LIMITATIONS ARE EXCLUSIVE REMEDIES AND ARE IN
LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED,
*CONFIDENTIAL TREATMENT REQUESTED
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INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
3. GRANT OF LICENSE. ASSIST grants LICENSEE a non-exclusive,
non-transferable license to use the ASSIST Modules listed in Paragraph l(a)
above and Related Documentation.
LICENSEE shall have the right to customize the Licensed Software for its
own internal use; provided that if LICENSEE in any fashion modifies or
customizes the Licensed Software, ASSIST shall have the right to choose whether
it will or will not offer Licensed Software maintenance and support to LICENSEE.
In the event any modification and/or enhancement to the licensed Software is
created by LICENSEE or ASSIST at LICENSEE's request, all rights to the
enhancement or modification shall be owned by ASSIST, including any and all
derivative rights, moral rights, conceptual rights, patent rights, copyright or
other intellectual property rights. LICENSEE agrees to and hereby does assign to
ASSIST any and all such rights in such enhancement and/or modifications for
ASSIST's sole and exclusive use.
ASSIST agrees to provide at no additional cost transfer media including
diskettes, tapes, and/or data cartridges, and to replace defective diskettes,
tapes and/or data cartridges during the initial installation and warranty.
ASSIST agrees to provide at no additional cost as part of the license, one
set of Related Documentation for each module licensed. Additional sets of
Related Documentation may be licensed by LICENSEE at the rate then being charged
by ASSIST.
4. RIGHTS AND RESPONSIBILITIES OF LICENSEE. LICENSEE shall:
(a) Use the Licensed Software only in connection with its own
options and only on the IBM AS/400 Computer, Model 170-2291, identified by the
CPU Serial Number of______________;
(b) Refrain from selling, renting, leasing, or otherwise transferring
or assigning its right to use any or all of the Licensed Software and Related
Documentation.
(c) Other than to create backup copies of the Licensed Software for
disaster recovery, not copy, modify, enhance, or translate the Licensed Software
or Related Documentation without the prior written consent of ASSIST. LICENSEE
shall not disclose, publish, transfer, translate, release or otherwise make
available the Licensed Software or Related Documentation, in any form, to any
person, (other than an employee of LICENSEE who requires such information to use
the Licensed Software), or to another entity, without prior written consent of
ASSIST.
(d) Not remove ASSIST's copyright notices from any copies of the
Licensed Software made for purposes of backup.
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(e) Pay any and all applicable sales, use, income or excise tax levied
as a result of this grant of license and the services provided hereunder.
LICENSEE shall be responsible for the payment of any property tax levied as a
result of the ownership or grant of this License or the ownership or use of the
Licensed Software and Related Documentation pursuant to this License.
5. PROPRIETARY DATA; CONFIDENTIALITY. LICENSEE acknowledges that the
information contained in the Licensed Software and Related Documentation is
confidential and contains trade secrets and proprietary data belonging to ASSIST
and that the presence of copyright notices on the median containing the Licensed
Software or the Related Documentation does not constitute publication or
otherwise impair the confidential nature thereof. LICENSEE shall implement all
reasonable measures in its use of the Licensed Software and Related
Documentation necessary to safeguard ASSIST's ownership of, and the
confidentiality of the Licensed Software modules listed in 1(a) above. LICENSEE
and ASSIST recognize that during the course of the installation, service and
support of the Licensed Software system, ASSIST employees may at LICENSEE's
request, have access to information about LICENSEE, LICENSEE affiliates or
LICENSEE's customers. ASSIST and its employees shall keep confidential and shall
not disclose to third parties any information including financial information or
any other information which ASSIST views or obtains in connection with the
installation and ongoing maintenance of the Licensed Software system.
6. INFRINGEMENT. ASSIST represents that it owns all the Licensed Software
and Related Documentation and ASSIST will defend at its expense any claim or
action brought against LICENSEE to the extent that such claim or action is based
upon a claim that the Licensed Software or Related Documentation, used within
the scope of this Agreement by LICENSEE infringes on a United States copyright,
United States patent or trade secret. ASSIST will pay all adjudicated claims and
all settlements entered into and all damages and costs awarded against LICENSEE
including but not limited to reasonable attorneys fees that are awarded against
LICENSEE provided that:
(a) LICENSEE gives ASSIST immediate written notice of all claims of
any such infringement and any suits brought or threatened against LICENSEE due
to such infringement;
(b) LICENSEE gives ASSIST authority to assume the defense through its
own counsel and to compromise or settle any such suits (any non-adjudicated
settlement must be agreed to by ASSIST);
(c) LICENSEE provides full information, cooperation, and support
necessary to assist defense or settlement of the claim;
(d) Such action is not based on any copyright, trade secret, patent or
other proprietary information where
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(i) the software has been altered by LICENSEE if such
infringement would have been avoided by the use of unaltered software; or
(ii) the use of the Licensed Software with non-ASSIST software
system or data, if such infringement would have been avoided by the use of the
Licensed Software without such other software, system or data; and
(e) LICENSEE has obtained or will obtain all third party software and
licenses which are necessary to operate the Licensed Software.
The foregoing states the entire liability of ASSIST with respect to
infringement or claimed infringement of any copyrights, patents or trade secrets
or other intellectual property rights by the Licensed Software and Related
Documentation or any part thereof.
7. LICENSE FEE. In consideration of the license granted hereby, LICENSEE
shall pay ASSIST a single one-time license fee of [...***...]. The license
fee is based on the size of the IBM AS/400 processor on which the Licensed
Software is licensed to run. If the LICENSEE upgrades the IBM AS/400
processor, LICENSEE shall notify ASSIST of such upgrade, and ASSIST has the
right to appropriately increase the license fee and any such increase will be
based on the difference in price between the size of processor on which the
Licensed Software is licensed to run and the upgraded model.
8. TERMS Upon execution of this Agreement, ASSIST shall make available to
LICENSEE, the Licensed Software and Related Documentation and company personnel
to install and train LICENSEE's employees to use said system.
(a) LICENSEE agrees to pay [...***...] the full amount of the
license fee upon execution of this Agreement. [...***...] of the full amount
on October 15th, 1998. [...***...] of the full amount upon completion of the
installation and pilot test. The remaining [...***...] of the full license
fee will be paid upon going live or January 31st, 1998 whichever occurs first.
(b) LICENSEE acknowledges and agrees that it has been informed that
the Licensed Software contains a "time bomb" which will not be deactivated
until LICENSEE has paid ASSIST for the full amount of the license fee.
9. LIMITED WARRANTY. LICENSEE accepts the Licensed Software for the
functions it will perform for LICENSEE, LICENSEE having conducted its own
investigation therein.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ASSIST DOES NOT MAKE, AND
LICENSEE HEREBY EXPRESSLY WAIVES, ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
ANY AND ALL WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR
PURPOSE. IN NO EVENT SHALL ASSIST BE
*CONFIDENTIAL TREATMENT REQUESTED
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LIABLE FOR ANY DAMAGES, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES,
ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE PROVIDED By ASSIST
HEREUNDER, EVEN IF ASSIST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT SHALL ASSIST BE LIABLE TO LICENSEE OR ANY THIRD PARTY
FOR ANY REASON.
LIMITATION OF LIABILITY. Except for claims of infringement, as provided
herein, and except for loss caused to LICENSEE by intentional acts or
omissions by ASSIST, the entire liability of ASSIST for any claim of defect
or breach of warranty, and the sole exclusive remedy of LICENSEE shall be the
replacement of any transfer media which does not meet the limited warranty.
EXCEPT AS OTHERWISE PROVIDED HEREIN, IN NO EVENT WILL ASSIST OR ANY OF ITS
OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT
LIMITED TO, LOST PROFITS, LOST SAVINGS OR OTHER DIRECT, INDIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OF, INABILITY TO USE, OR THE
RESULT OF USING LICENSED SOFTWARE AND RELATED DOCUMENTATION, EVEN IF ASSIST
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR ANY CLAIM BY ANY PARTY.
10. MAINTENANCE AND SUPPORT. As and when available from time to time and
when generally released by ASSIST to its customers, ASSIST shall provide to
LICENSEE updates and upgrades for the Licensed Software and make available to
LICENSEE across via telephone, Support through the Assist support desk, for
advise regarding the use of the Licensed Software. At the expiration of the
three month warranty, LICENSEE shall pay an annual fee for ongoing software
Support and upgrades at the rate established by ASSIST, which is currently
[...***...] of the list price of the software. If LICENSEE upgrades the
Licensed Software, it is entitled to one copy of the latest Related
Documentation for each module installed. Additional Related Documentation may
be licensed by LICENSEE at the rate then being charged by ASSIST. Support
does not include, among other things, supporting custom programs or fixing
and/or modifying any data. If LICENSEE does not elect to pay an annual fee
for ongoing software Support and upgrades, LICENSEE may elect to pay ASSIST
the hourly and per/call rate then being charged by ASSIST for ongoing Support
and LICENSEE shall also pay the software upgrade charge set by ASSIST if
LICENSEE desires the software upgrades. Any requested Related Documentation
will be provided to LICENSEE at the rate then being charged by ASSIST.
11. GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of the state of Utah, and any action hereunder shall be
brought in Salt Lake County, State of Utah.
12. LICENSED SOFTWARE AND RELATED DOCUMENTATION OWNERSHIP. LICENSEE
acknowledges that ASSIST is the sole owner and developer of the Licensed
Software and Related Documentation. All rights, title and interest in or to the
Licensed Software and Related
*CONFIDENTIAL TREATMENT REQUESTED
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Documentation, and any copyrights, including moral rights, and all rights to
make reproductions and any information on or contained within the Licensed
Software, and all trademarks, patents or trade secrets associated with the
Licensed Software, wherever resident and on whatever media, shall remain with
ASSIST. LICENSEE shall take all reasonable steps necessary to protect the
proprietary nature of the software and Related Documentation against any
unauthorized use and/or disclosure.
13. ASSISTANCE by LICENSEE. LICENSEE shall provide ASSIST with full, good
faith cooperation and such information as may be required by ASSIST in order to
provide the services hereunder. In particular, LICENSEE shall:
(a) provide ASSIST with specific and detailed information concerning
LICENSEE's workflow and procedures as they related to the Licensed Software;
(b) make available to ASSIST the data and files needed to implement
and test the Licensed Software; and
(c) make available to ASSIST, personnel of LICENSEE for the
development and testing of the Licensed Software and training users hereof.
14. MISCELLANEOUS. The following miscellaneous provisions shall apply to
this Agreement:
(a) MODIFICATION OF AGREEMENT. This Agreement can only be modified
by a separate writing, other than an instrument of payment, signed by all
parties.
(b) DEFAULT. If either party defaults in any of the covenants or
agreements herein contained, the defaulting party will pay all costs and
expenses, including reasonable attorneys fees, incurred by the other party in
enforcing its rights arising under this Agreement, whether incurred through
legal action or otherwise, including reasonable attorneys fees incurred in
enforcing any arbitration award or decision.
(c) ENFORCEMENT. LICENSEE acknowledges that any remedy of law for
breach of any confidentiality provisions or non-disclosure provisions herein
would be inadequate, acknowledges that ASSIST would be irreparably damaged by
any actual or threatened breach thereof, and agrees that ASSIST shall be
entitled to an injunction restraining LICENSEE from any actual or threatened
breach of such provision, as well as any further appropriate equitable relief
without any bond, or other security being required. In addition to the
foregoing, ASSIST shall be entitled to any remedies available at law, equity,
or by statute.
(d) SEVERABILITY. If and to the extent that any court of competent
jurisdiction holds any Provision or any part hereof to be invalid or
unenforceable, such holding shall in no way affect the validity of the
remainder of this Agreement.
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(e) WAIVER. No failure by either party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement,
or to exercise any right or remedy upon the breach thereof, shall constitute
a waiver of any breach of this Agreement.
(f) ENTIRE AGREEMENT. This Agreement contains the entire agreement
of the parties and supersedes all prior agreements, negotiations, and
understandings between the parties.
15. ASSIGNMENT. Customer may transfer or assign its rights under this
agreement to a third party located in Canada or the USA who has purchased all
or substantially all of the customers assets or capital stock who is not a
competitor of Assist and who agrees in writing in advance to be bound by the
terms herein. Except as provided above Customer is prohibited from
transferring or assigning, encumbering or otherwise pledging any of its
rights or obligations under this agreement without prior written consent of
Assist which shall not be unreasonably denied.
16. ACKNOWLEDGMENT. LICENSEE ACKNOWLEDGES THAT ITS AUTHORIZED AGENTS
HAVE READ AND UNDERSTAND THIS SOFTWARE LICENSE AGREEMENT, AND THAT THE
LICENSEE AGREES TO BE BOUND BY ITS TERMS, AND CONDITIONS. LICENSEE
ACKNOWLEDGES THAT THIS WRITTEN AGREEMENT EXPRESSES THE ENTIRE AGREEMENT
BETWEEN LICENSEE AND ASSIST AND SUPERCEDES ANY PRIOR COMMUNICATIONS, ORAL OR
WRITTEN, RELATING TO THE SUBJECT MATTER HEREOF.
17. NOTICE. Any notice required or permitted to be sent under this
Agreement, shall be delivered by hand or mailed by registered or certified
mail, return receipt requested, to 000.XXX, Inc. at 000 XX 00xx Xxx, Xxxxx
000, Xxxxxxxx, XX 00000 and to ASSIST CORNERSTONE TECHNOLOGIES, INC., at 00
Xxxx 000 Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000.
IN WITNESS WHEREOF, the parties have signed this Software License
Agreement as of the date above first written.
ASSIST CORNERSTONE LICENSEE
TECHNOLOGIES, INC.
Signature: /s/ Xxxxxxx Xxxxxxx Signature: /s/ Xxxxxxx X. Xxxx
--------------------------- ---------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxx
-------------------------------- --------------------------------
Title: CFO Title: PRESIDENT, CEO
------------------------------- -------------------------------
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