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EXHIBIT B Exhibit 10.45
SOFTWARE LICENSE AGREEMENT
This Software License Agreement ("Agreement") made and entered
into between ijob, Inc. ("ijob"), with a business address of 00000
Xxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000 and Human Technologies, Inc.
("Customer"). Ijob and Customer agree that the following terms and
conditions shall govern in all cases when Ijob furnishes Program
Products (as hereinafter defined) to Customer:
1. DEFINITIONS.
1.1 "Agreement" means this Agreement, including any exhibits,
amendments, supplements, and addenda. The term "Agreement" also
includes any future written amendments, modifications or supplements
made pursuant to and in accordance with this Agreement.
1.2 "Program Product" means the computer software programs,
documentation, interfaces and related code identified in Exhibit A
attached hereto. This may include software from third parties from
whom Ijob has obtained a right to use and distribute.
1.3 "Executable Code" means computer programs assembled or compiled
in magnetic or electronic binary form on software media, which are
readable and usable by machines but not generally readable by humans
without reverse assembly, reverse compiling, or reverse engineering.
1.4 "Source Code" means computer programs written in higher-level
programming languages, sometimes accompanied by English language
comments which are intelligible to trained programmers and which may
be translated into Executable Code for operation on computer
equipment through the process of compiling.
1.7 "Documentation" means printed instructions, manuals,
descriptions, on-line help and diagrams pertaining to the Program
Products described in Exhibit A.
2. LICENSE. ijob hereby grants and the Customer accepts a
nontransferable, non-assignable and non-exclusive license to use the
Program Products listed on Exhibit A for its internal business
purposes and, subject to the terms, covenants, conditions and
limitations of this Agreement, to sublicense the same to third
parties; provided however and notwithstanding anything to the
contrary, neither Customer nor any of its sublicensees may use the
Program Products to compete either directly or indirectly with ijob
in the providing of Internet based employment referral, recruiting
and testing services; provided however, HT may continue to use and
develop its expatriate selection and testing program known as
Aipatriot@ to the extent that such program is solely used for the
selection and testing of employees to be sent or transferred overseas
by their employer. Customer may not grant a license to or otherwise
transfer the Program Products to any third party who competes with
ijob in the providing of Internet based employment referral,
recruiting and testing services. The license granted hereunder
extends to the United States and its Territories only. To the
extent that HT grants licenses as permitted by this Agreement, it is
not obligated to pay any royalties or additional license fees to ijob
therefore. The Customer shall shall take all reasonable actions to
prevent others from reverse engineering the Program Products,
decompiling or disassembling any code, or engineering derivative
products which duplicate the unique qualities of the Program
Products. All copies made by the terms of this Agreement and
derivative works based on the Program Products are subject to the
terms and conditions of this Agreement and shall state on such
copy(s) that they are, or include, the property of ijob, and that
such rights of ijob are protected under the copyright, trade secret
and confidentiality laws of the United States, and such other notices
as required by Ijob.
3. TERM. This Agreement is perpetual unless earlier terminated in
accordance with the provisions of this Agreement.
4. CONSIDERATION. This License is granted pursuant to the terms of
an Asset Purchase Agreement executed by and between ijob and Customer
as of the 12th day of June, 1997.
5. TERMINATION.
5.1 Upon termination of this Agreement, Customer shall immediately
discontinue use of the Program Products. Within one (1) week after
the date of termination of this Agreement, Customer will deliver to
Ijob the original and all copies, including partial copies and
modifications, of the Program Products and related documentation or
certify in writing to Ijob that all such Program Products and related
documentation has been destroyed by Customer and have been fully
removed from any computer(s) upon which they have been installed.
5.2 This Agreement shall immediately terminate without notice, to
the extent permitted by applicable law in the jurisdiction or
jurisdictions in question, if Customer files a petition in bankruptcy
(or is the subject of an involuntary petition in bankruptcy that is
not dismissed within sixty (60) days after the effective filing date
thereof); or is or becomes insolvent; or admits of a general
inability to pay its debts as they become due.
5.3 This Agreement shall terminate immediately upon any of the
following events, without the need for further action on the part of
Ijob, (i) if Customer breaches any of its obligations under this
Agreement relating to Ijob's intellectual property rights or
confidentiality in or to the Program Products or relating to export
controls of the Program Products or (ii) if Customer fails to cure
any other obligation it owes to Ijob pursuant to the terms of this
Agreement within thirty (30) days after receipt of written notice
thereof from Ijob.
6. OWNERSHIP. Nothing in this Agreement shall be deemed to give
Customer ownership rights in or title to all or any portion of the
Program Products. Customer acknowledges that the Program Products
are proprietary to ijob, or third parties from whom Ijob has obtained
a right to use and distribute, and that the sole and exclusive title,
right and interest in and to the Program Products and all related
documentation and any alterations, new releases, new versions or any
other modifications or Enhancements, or Updates of the Program
Products and any copies thereof and any and all documentation
relating thereto are and shall remain in Ijob, or such third parties
from whom Ijob has obtained a right to use and distribute the same.
All applicable legal and statutory rights in the Program Products,
Source code, Executable code, patents, and copyrights are and shall
remain the property of Ijob, or third parties from whom Ijob has
obtained a right to use and distribute the same. Nothing in this
Agreement shall preclude Ijob from developing Program Products or
Documentation which are competitive, irrespective of their
similarity, to Program Products or Documentation which might be
produced for or provided to Customer pursuant to this Agreement.
7. CONFIDENTIALITY. The Program Products contains confidential
information protected by copyright, trade secret and trademark laws.
The Customer may not remove or alter ownership and copyright notices
or such other notices on or in the media or the Program Products.
Customer shall take all reasonable steps to protect and maintain the
confidentiality of the Agreement and the Program Products. The
Customer shall not disclose this Agreement or any portion of the
Program Products to any person other than its own employees who have
a need to use such Program Products in furtherance of the Customer's
business. The Customer shall advise each of its employees with any
such access of such confidentiality requirements. The provisions of
this Agreement relating to confidentiality shall survive the
termination of this Agreement. Customer shall take or cause to be
taken all reasonable precautions to hold in confidence, and to
prevent the disclosure or communication to third parties of, and
shall not disclose or communicate to third parties, without Ijob's
prior written consent, all information, data and know-how pertaining
to the design and operation of the Program Products, including, but
not limited to, Source and Executable Code, tapes, machine listings
and flowcharts and documentation relating thereto.
8. DISCLAIMER OF ALL WARRANTIES. THE PROGRAM PRODUCTS ARE
DELIVERED TO CUSTOMER AS IS, WHERE IS. IJOB DISCLAIMS ANY AND ALL
WARRANTIES, OR CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED,
ORAL OR WRITTEN), WITH RESPECT TO THE PROGRAM PRODUCTS OR ANY PART
THEREOF, INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF
TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR
PURPOSE (WHETHER OR NOT IJOB KNOWS, HAS REASON TO KNOW, HAS BEEN
ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER
ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE,
OR BY COURSE OF DEALING, OR BY COURSE OF PERFORMANCE UNDER ANY OTHER
CONTRACT BETWEEN THE PARTIES HERETO. IN ADDITION, IJOB EXPRESSLY
DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN
CUSTOMER WITH RESPECT TO THE PROGRAM PRODUCTS OR ANY PART THEREOF.
9. IN NO EVENT SHALL IJOB BE LIABLE TO CUSTOMER NOR TO ANY PERSON
CLAIMING RIGHTS DERIVED FROM CUSTOMER'S RIGHTS FOR ANY DAMAGES OF ANY
KIND OR NATURE, INCLUDING WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, INCIDENTAL, CONSEQUENTIAL AND EXEMPLARY DAMAGES..
10 Ijob and Customer each acknowledge that the provisions of this
Agreement were negotiated to reflect an informed, voluntary
allocation between them of all risks (both known and unknown)
associated with the transactions associated with this Agreement. The
warranty disclaimers and limitations in this Agreement are intended
to limit the circumstances of liability. The remedy limitations, and
the limitations of liability, are separately intended to limit the
forms of relief available to Customer.
11. OTHER PROVISIONS.
11.1 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between Ijob and Customer concerning the subject matter
hereof. No prior or contemporaneous representations, inducements,
promises, or agreements, oral or otherwise, between Ijob and customer
with reference thereto will be of any force or effect.
11.2 MODIFICATION. No modification, amendment or waiver of any of
the provisions of this Agreement, and no prior approval required by
this Agreement, shall be effective unless in writing signed by the
parties. Writings signed on behalf of Ijob shall be signed by an
officer of the corporation. Any provision of Customer's purchase
order or other request for products or services under this Agreement
that is in any way inconsistent with or in addition to the terms and
conditions of this Agreement, shall not bind Ijob. Ijob's failure to
object to any such provision shall not be construed as a waiver of
the terms and conditions of this Agreement nor as acceptance of any
such provision.
11.3 CHOICE OF LAW. This Agreement shall be governed by the laws of
the State of Oklahoma and the venue of any action for enforcement of
any of the terms covenants or conditions of this Agreement, or
otherwise, shall be in the State of Oklahoma.
11.4 ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement, or its breach, or its validity or
interpretation, except claims for injunctive relief and claims
involving necessary third parties who refuse to participate, shall be
settled by binding arbitration in accordance with the then current
Commercial Arbitration Rules of the American Arbitration Association
("AAA"). The location for the arbitration shall be in Oklahoma
County, Oklahoma. Such arbitration shall be heard and determined by
a panel of three (3) arbitrators in accordance with the then current
rules or regulations of the AAA relating to commercial disputes. One
arbitrator shall be appointed by each party to serve on the panel.
One neutral arbitrator shall be appointed by the AAA and shall serve
as chair-person of the three arbitrator panel. Such neutral
arbitrator shall be an attorney with experience in handling disputes
relating to software license agreements. The arbitration award shall
be binding on the parties and may be enforced in any court of
competent jurisdiction. The prevailing party in such arbitration
shall be entitled to recover its reasonable attorney fees and costs
incurred in such arbitration proceeding.
11.5 ASSIGNMENT. Customer may not assign this Agreement or the
rights and obligations created hereunder without the prior written
consent Ijob.
11.6 BINDING. This Agreement is binding on, and inures to the
benefit of, Ijob, the Customer, and their respective successors and
assigns to the extent permitted by this Agreement.
11.7 COMPLIANCE WITH LAWS. Each party shall comply with all
applicable laws and regulations.
11.8 FORCE MAJEURE. Ijob shall not be responsible for failure of
performance due to causes beyond its control, including, but not
limited to, accidents, acts of God, labor disputes, or the actions of
any Government agency.
11.9 CAPTIONS. The captions of the various paragraphs herein are for
convenience only, and they are not intended to be any part of the
body or text of this Agreement, nor are they intended to be referred
to in construing any of the provisions hereof.
11.10 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, any of which shall be deemed to be an original.
11.11 INDEPENDENT CONTRACTORS. Ijob and the Customer are
strictly independent contractors. Neither party has the right to
bind the other in any manner, and nothing in this Agreement shall be
interpreted to make either party the agent or legal representative of
the other or to make the parties joint venturers or partners.
11.12 JOINT EFFORTS. This Agreement has been prepared and
negotiations in connection therewith have been carried on by the
joint efforts of the parties to this Agreement. This Agreement is to
be construed simply and fairly and not strictly for or against any of
the parties to this Agreement.
11.13 ATTORNEY FEES. In the event that litigation or arbitration
is instituted between the parties in connection with any controversy
or dispute arising from, under or related to this Agreement the
prevailing party in such litigation shall be entitled to recover its
reasonable attorney fees and costs, including without limitation,
deposition costs relating to such litigation and further including,
without limitation, any such attorney fees or costs incurred as a
result of any appeal related to such litigation.
11.14 AUDIT. In furtherance of any and all of Ijob's rights
under this Agreement ijob may, at its expense and without notice to
the Customer, but during the Customer's regular business hours, enter
upon the Customer's premises to audit the number of copies of Program
Products made under this Agreement and the Customer's compliance with
the other provisions of this Agreement.
11.15 SEVERABILITY. If any provision of this Agreement shall be
invalid or unenforceable, the remaining provisions of this Agreement
shall not be affected thereby and each remaining provision shall be
valid and enforceable to the fullest extent permitted by law.
11.16 NONWAIVER. The failure of Ijob at any time to require
performance by Customer of any provision of this Agreement shall in
no way affect the right of Ijob to require performance of that
provision. Any waiver by Ijob of any breach of any provision of this
Agreement shall not be construed as a waiver of any continuing of
succeeding breach of such provision, a waiver of that provision
itself or a waiver of any right under this Agreement.
11.17 TRADEMARK USAGE. Customer shall not make any use of any of
Ijob's intellectual property, including but not limited to,
trademarks, service marks, trade names, or corporate name for any
reason or purpose without the prior express written consent of Ijob.
11.18 NOTICE. All communications and notices provided for or
permitted hereunder shall be effective when made in writing and shall
be personally delivered, mailed by certified mail, postage prepaid,
or sent by overnight courier to the addresses set forth below or to
such other address as either party shall have communicated by written
notice to the other.
The parties agree and acknowledge that they have read this agreement,
understand it, and that they shall be bound by its terms and
conditions. The "Effective Date" of the Agreement shall be the later
of the dates shown below.
ijob, INC. HUMAN TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxxx Xxxxx Name: Xxxxx X. Xxxxxxxx
Its: Vice President Its: President
Date: June 12, 1997 Date: June 12, 1997
