LICENSE AGREEMENT
This License Agreement (this "Agreement") is entered into by and between
CapRock Communications Corp. ("CapRock"), a Texas corporation, and RiverRock
Systems, Ltd. ("RiverRock"), a Texas limited partnership, and is made effective
beginning on the date of last signature to this Agreement (the "Effective
Date").
R E C I T A L S
WHEREAS, RiverRock owns the System, as defined below; and
WHEREAS, pursuant to the conveyances discussed in the Partnership Agreement
(as defined below) and as more fully documented herein, RiverRock desires to
grant to CapRock and CapRock desires to receive from RiverRock, a license to the
System, as more fully described herein; and
WHEREAS, RiverRock and CapRock desire to enter into this Agreement to
document the agreement of the parties.
T E R M S A N D C O N D I T I O N S
NOW, THEREFORE, for and in consideration of the mutual premises set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby agree
as follows:
1. DEFINITIONS. The parties hereto agree that the following definitions
shall apply to this Agreement:
a. "Initial Commitment Period" shall mean the first three (3) years from
the Effective Date. Notwithstanding the preceding sentence, if after
the first three (3) years from the Effective Date, RiverRock is
continuing to be physically located within CapRock's business premises
or if RiverRock continues to use CapRock's data for test purposes,
then the Initial Commitment Period shall extend until such time as
RiverRock relocates to a business location separate from CapRock's
premises and RiverRock discontinues use of CapRock's data for testing
purposes.
b. "Maintenance" shall mean repairs, bug fixes and other maintenance or
upkeep to the System excluding: (i) System operational instruction;
(ii) installation of Specialized Customizations and Improvements or
Upgrades and Improvements, as provided in subparagraph 3.b.i., (iii)
administration of diskspace, user I.D.'s, back-ups, archives and
restores, and (iv) repairs necessitated by modifications to the System
not authorized by RiverRock.
LICENSE AGREEMENT Page 1
c. "Partnership Agreement" shall mean that certain Agreement of Limited
Partnership of RiverRock Systems, Ltd., dated _________________, and
entered into between CapRock, TTI and Xxxxx X. Xxxxxxxx.
d. "Specialized Customizations and Improvements" shall mean
customizations or improvements to the System specifically requested by
CapRock and that: (i) have not been previously developed for a third
party; (ii) are not currently being developed for a third party; and
(iii) are not described on and/or included within Schedule C to the
Partnership Agreement.
e. "System" shall mean that certain computer program, in object code
form, initially developed by CapRock and TTI (with CapRock and TTI
assigning all of their respective rights to the System developments to
RiverRock as part of the Partnership Agreement and as more fully
documented herein) for use as a computer, rating, billing and customer
care, accounting and reporting system, commonly referred to as the SQL
Billing System.
f. "TTI" shall mean Xxxxxxxx Technology, Inc., a Texas corporation.
g. "Upgrades and Improvements" shall mean any and all updates, upgrades,
new versions, enhancements and improvements to the System (excluding
only "Specialized Customizations and Improvements") as may be
developed by RiverRock internally and offered to RiverRock's
customers generally.
2. GRANT OF RIGHTS.
a. RiverRock hereby grants to CapRock and CapRock hereby accepts a
license (the "License") to use the System during the Term.
b. The License shall be perpetual, except as terminated pursuant to the
terms hereof.
c. The License will be royalty-free.
d. The License will be non-exclusive.
e. The License will be limited to use of the System on one server at a
central billing site, but shall permit LAN and WAN connectivity. For
purposes of LAN and WAN connectivity, the System software will be
stored on hardware located on one server at a central site, but
CapRock shall be permitted to link up to 250 terminals (whether
locally networked or accessed via modem or other communications
feature) with such terminals and/or PCs having sufficient System's
software, if any, to permit client functionality throughout the
terminals connected to the server. The license for any additional
terminals will be granted for consideration consistent with market
rates.
LICENSE AGREEMENT Page 2
f. The License will be non-sublicensable and shall only be assignable
pursuant to the terms of paragraph 12. below.
3. FINANCIAL OBLIGATIONS AND ACCOUNTING.
a. ROYALTY. RiverRock agrees that the grant of the License to the System
to CapRock shall be royalty-free.
b. UPGRADES AND IMPROVEMENTS.
i. During the Initial Commitment Period, RiverRock shall promptly
make available, and if approved by CapRock, promptly deliver to
CapRock all Upgrades and Improvements to the System, at no charge
to CapRock with such Upgrades and Improvements, upon the delivery
thereof, to constitute a portion of the System and to be governed
by the terms hereof. "Promptly," as used in this paragraph,
shall mean a time of delivery no later than the earlier of: (i)
reasonable business practice; (ii) thirty (30) days after
completion and final testing of the Upgrades and Improvements;
and (iii) the least amount of time of guaranteed delivery of
Upgrades and Improvements made to other RiverRock customers
(provided, however, that if Upgrades and Improvements are created
for a third party, RiverRock may install such Upgrades and
Improvements for such third party before making available and, if
accepted by CapRock, delivering such Upgrades and Improvements to
CapRock). CapRock will pay reasonable fees and expenses
associated with the installation of the Upgrades and
Improvements, such fees and expenses to be no greater than
RiverRock's customary billing practice, but shall have no
responsibility to pay any of RiverRock's development and/or
testing costs.
ii. After the Initial Commitment Period, RiverRock shall promptly
inform CapRock of all available Upgrades and Improvements.
CapRock, at its sole discretion, may decide to purchase one or
more offered Upgrades and Improvements. Upon acceptance of the
Upgrades and Improvements, such Upgrades and Improvements shall
be incorporated into this Agreement, upon installation, or in the
mutual agreement of the parties, CapRock and RiverRock may enter
into a license agreement documenting the grant of the license to
use the Upgrades and Improvements, in either case, for a
consideration consistent with market rates for such Upgrades and
Improvements.
c. SPECIALIZED CUSTOMIZATIONS AND IMPROVEMENTS. During the Term,
CapRock may request Specialized Customizations and Improvements.
RiverRock shall use all reasonable efforts to perform the Specialized
Customizations and Improvements on a timely basis. The compensation
for the Specialized Customizations and
LICENSE AGREEMENT Page 3
Improvements shall be negotiated in good faith by CapRock and
RiverRock, based on then existing market rates and conditions.
d. MAINTENANCE.
i. During the Initial Commitment Period, RiverRock shall perform
timely Maintenance to the System, at no charge to CapRock.
ii. After the Initial Commitment Period, RiverRock shall offer
Maintenance services to CapRock, at then reasonable business
terms (including, without limitation, length and cost of
agreement) for such services.
iii. RiverRock agrees to provide technical support with regard to use
of the System to CapRock in accordance with RiverRock's ordinary
business practices.
iv. Excluding the matters relating to the Source Code addressed in
paragraph 9. below, if RiverRock fails or refuses to begin
providing Maintenance, promptly, and in any event within three
(3) days after notice thereof by CapRock to RiverRock, or if
RiverRock fails or refuses to continue with good faith analysis
and repair after beginning such Maintenance, either during the
Initial Commitment Period or during any maintenance agreement
term thereafter, and if CapRock is required to use third parties
to provide and/or complete such Maintenance, then RiverRock shall
reimburse CapRock for the reasonable cost of such Maintenance.
4. TERM AND TERMINATION.
a. TERM. The rights granted under this Agreement by RiverRock to CapRock
shall commence upon the Effective Date and shall continue until
terminated pursuant to the terms of this Agreement (the "Term").
b. EARLY TERMINATION. This Agreement shall terminate only upon the
mutual consent of the parties or as described in paragraph 8. below.
5. WARRANTIES.
a. RiverRock does hereby warrant and represent to CapRock as follows:
i. RiverRock has the legal capacity and authority to enter into this
Agreement, to perform RiverRock's obligations hereunder, and to
become legally bound by the terms of this Agreement;
LICENSE AGREEMENT Page 4
ii. save and except claims that may arise from portions of the System
contributed by CapRock, such contribution as more fully
documented within the Xxxx of Sale attached hereto as Exhibit
"A", the System, whether in whole or in part, as developed by
RiverRock and/or its agents after the Effective Date, will not
infringe upon or misappropriate any trade secrets, copyrights,
trademarks, patents, privacy, publicity, service marks, or other
third party rights;
iii. save and except claims that may arise from portions of the System
contributed by CapRock, such contribution as more fully
documented within the Xxxx of Sale attached hereto as Exhibit
"A", the use of the System, as developed by RiverRock and/or its
agents after the Effective Date, whether in whole or in part,
will not infringe upon or misappropriate any trade secrets,
copyrights, trademarks, patents, privacy, publicity, service
marks, or other third party rights;
iv. RiverRock has and will maintain all consents and licenses
necessary to RiverRock's performance hereunder during the Term of
this Agreement;
v. by entering into this Agreement and/or by performing hereunder,
RiverRock is not, and will not be, in violation of any third
party agreement;
vi. all material defects identified during the beta phase of System
development will be corrected through RiverRock's Maintenance
obligations (as described herein); provided, however, that such
warranty and representation does not extend to defects arising
from unauthorized modifications to the System, performed by
CapRock without the consent or direction of RiverRock; and
vii. from and after the beta phase of System development, the System
will materially operate pursuant to the specifications for the
System stated in Exhibit "C" to the Partnership Agreement and in
any documentation prepared by RiverRock, and accepted by CapRock
in writing, and all maintenance and/or repair will be performed
as Maintenance (as described herein); provided, however, that
such warranty and representation does not extend to defects
arising from unauthorized modifications to the System, performed
by CapRock without the consent or direction of RiverRock.
b. CapRock does hereby warrant and represent to RiverRock as follows:
i. CapRock has the legal capacity and authority to enter into this
Agreement, to perform CapRock's obligations hereunder and to
become legally bound by the terms of this Agreement; and
ii. by entering into this Agreement and/or performing hereunder,
CapRock is not, and will not be, in violation of any third party
agreement.
LICENSE AGREEMENT Page 5
c. THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED HEREIN AND IN THE
PARTNERSHIP AGREEMENT RELATING TO THE OPERATION AND FUNCTIONALITY OF
THE SYSTEM ARE THE ONLY REPRESENTATIONS AND WARRANTIES MADE BY
RIVERROCK RELATING TO THE OPERATION AND FUNCTIONALITY OF THE SYSTEM.
EXPRESSLY EXCLUDED ARE ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE RELATING TO THE SYSTEM.
6. RIVERROCK INDEMNIFICATION.
a. RiverRock hereby agrees to indemnify, hold harmless and defend CapRock
and the CapRock Related Parties, as defined below, from and against
any and all "RiverRock Claims", which shall mean any and all damages,
demands, claims, losses, causes of action, liabilities, lawsuits,
judgments and expenses (including, without limitation, reasonable
attorneys' fees and expenses) arising from, relating to or in
connection with one (1) or more of the following:
i. a material breach of this Agreement by RiverRock;
ii. a claim that the System, as developed by RiverRock and/or its
agents after the Effective Date, whether in whole or in part,
infringes upon or misappropriates a patent, copyright, trademark,
trade secret, privacy, publicity or other proprietary right of
any third party; or
iii. a claim that the use of the System, as developed by RiverRock
and/or its agents after the Effective Date, infringes upon or
misappropriates a patent, copyright, trademark, trade secret,
privacy, publicity or other proprietary right of any third party.
b. For purposes of subparagraphs 6.a. and 6.b. and paragraph 23. below,
the term "CapRock Related Parties" shall mean predecessors, permitted
successors, permitted assigns, officers, directors, shareholders,
employees, agents and representatives of CapRock. CapRock agrees to
notify RiverRock of any such RiverRock Claims within a reasonable time
after CapRock learns of same. RiverRock, at its own expense, shall
defend CapRock and the CapRock Related Parties from any and all
RiverRock Claims. CapRock and the CapRock Related Parties reserve the
right to participate in any defense of the RiverRock Claims with
counsel of their choice, and at their own expense. In the event
RiverRock fails to provide a defense, then, in addition to all other
RiverRock Claims, RiverRock shall be liable for paying the reasonable
attorneys' fees and expenses incurred by CapRock and the CapRock
Related Parties regarding
LICENSE AGREEMENT Page 6
the defense of the RiverRock Claims. CapRock and the CapRock Related
Parties, as applicable, agree to reasonably assist in the defense of
the RiverRock Claims.
c. No settlement of the RiverRock Claims shall be valid or binding
without the prior approval of RiverRock, which approval shall not be
unreasonably delayed or withheld. No settlement may include any
admission of fault or liability on the part of the indemnified party
without the prior written consent of the indemnified party.
d. The parties agree that claims arising from the following shall be
excluded from the representations and warranties coverage of RiverRock
as set forth in paragraphs 6.a.ii. and 6.a.iii above: (1) claims that
may arise from portions of the System contributed by CapRock, such
contribution as more fully documented within the Xxxx of Sale attached
hereto as Exhibit "A"; and (2) claims that may arise from unauthorized
modifications to the System, performed by CapRock without the consent
or direction of RiverRock.
7. CAPROCK INDEMNIFICATION.
a. CapRock hereby agrees to indemnify, hold harmless and defend RiverRock
and the RiverRock Related Parties, as defined below, from and against
any and all "CapRock Claims", which shall mean any and all damages,
demands, claims, losses, causes of action, liabilities, lawsuits,
judgments and expenses (including, without limitation, reasonable
attorneys' fees and expenses) arising from or relating to a material
breach of this Agreement by CapRock and arising from unauthorized
modifications to the System, performed by CapRock without the consent
or direction of RiverRock.
b. For purposes of subparagraphs 7.a. and 7.b. and paragraph 23. below,
the term "RiverRock Related Parties" shall mean predecessors,
permitted successors, permitted assigns, officers, partners (including
the officers, directors and shareholders of such partners), employees,
agents and representatives of RiverRock. RiverRock agrees to notify
CapRock of any such CapRock Claims within a reasonable time after
RiverRock learns of same. CapRock, at its own expense, shall defend
RiverRock and the RiverRock Related Parties from any and all CapRock
Claims. RiverRock and the RiverRock Related Parties reserve the right
to participate in any defense of the CapRock Claims with counsel of
their choice, and at their own expense. In the event CapRock fails to
provide a defense, then, in addition to all other CapRock Claims,
CapRock shall be liable for paying the reasonable attorneys' fees and
expenses incurred by RiverRock and the RiverRock Related Parties
regarding the defense of the CapRock Claims. RiverRock and the
RiverRock Related Parties, as applicable, agree to reasonably assist
in the defense of the CapRock Claims.
c. No settlement of the CapRock Claims shall be valid or binding without
the prior approval of CapRock, which approval shall not be
unreasonably delayed or withheld.
LICENSE AGREEMENT Page 7
No settlement may include any admission of fault or liability on the
part of the indemnified party without the prior written consent of
the indemnified party.
8. REMEDIES.
a. REMEDIES UPON A BREACH BY RIVERROCK: In the event of a material
breach of this Agreement by RiverRock, and a failure by RiverRock to
cure such material breach within thirty (30) days after delivery by
CapRock of written notice of such material breach to RiverRock,
CapRock shall be permitted to pursue all remedies available at law or
equity, including, without limitation, a termination of this
Agreement. Notwithstanding the preceding, the right of CapRock to
terminate this Agreement after such thirty (30) day period shall be
deferred, if, and only if: (i) the breach relates to the operation of
the System or the provision of Maintenance; and (ii) RiverRock has
begun the Maintenance within the original thirty (30) day period and
such Maintenance has continued with good faith analysis and repair.
If for any ten (10) day period, RiverRock shall cease such good faith
analysis and repair, CapRock may pursue all remedies at law or equity,
including, without limitation, termination of this Agreement, with
such termination effective upon receipt of written notice by
RiverRock. Notwithstanding any other terms hereof, RiverRock shall
have no liability for consequential, exemplary or incidental damages
relating to or arising out of the operation or functionality of the
System other than the obligations to perform Maintenance on the System
and/or the provision of the Upgrades and Improvements as described in
this Agreement, and the other remedies set forth in the Partnership
Agreement.
b. REMEDIES UPON A BREACH BY CAPROCK: In the event of a material breach
of this Agreement by CapRock and CapRock's failure to cure such
material breach within thirty (30) days from CapRock's receipt of a
written notice of default from RiverRock, RiverRock's shall be
permitted to pursue all remedies available at law or equity; provided,
however, that RiverRock may only terminate the License upon the
following:
i. continued failure of CapRock to pay any fees or payments
described herein for thirty (30) days after written notice of
such failure is delivered by RiverRock to CapRock; or
ii. material breach of the Agreement, other than as described in
subparagraph 8.b.i. above or as a result of a Source Code
Disclosure, and the continuation of such material breach for
thirty (30) days after delivery of written notice by RiverRock to
CapRock identifying such material breach. The parties
acknowledge and agree that a Source Code Disclosure shall mean a
disclosure of the Source Code other than as permitted by this
Agreement. Upon a Source Code Disclosure, RiverRock may pursue
against CapRock or third
LICENSE AGREEMENT Page 8
parties, and CapRock agrees to cooperate in pursuing remedies
against third parties, all remedies at law or in equity save and
except that such remedy shall not include termination of the
License.
If a dispute exists as to whether or not a fee or payment is due or if
a material breach of the Agreement has occurred, either party may
submit this dispute to the ADR provisions (the "ADR Proceedings") of
paragraph 24. below for resolution. If a party hereto (the "Alleging
Party") submits a fee, payment or material breach dispute to the ADR
Proceedings, the termination rights of the other party hereto (the
"Non-Alleging Party"), if any, shall be deferred until the Non-
Alleging Party receives a favorable outcome from the ADR Proceedings
finding such fee or payment is due or that a material breach by the
Alleging Party occurred, and the continuation of such failed payment
or breach for ten (10) days after the Alleging Party's receipt of
notice of such ADR determination.
c. NON-WAIVER: Pursuit of any remedy by either party shall not
constitute a waiver of any other right or remedy by such party under
this Agreement or under applicable law.
9. SOURCE CODE.
a. Upon execution of this Agreement, RiverRock shall deliver to the
CapRock Lockbox Representative a complete copy of the source code for
the System (the "System Source Code"). With the delivery of each
Upgrade and Improvement or Specialized Customizations and
Improvements, RiverRock shall deliver to the CapRock Lockbox
Representative the System Source Code supporting the same.
Periodically, no more often than twice during any calendar year,
CapRock may request, and RiverRock shall deliver a complete and
current copy of the System Source Code. Upon any delivery of a
revised and/or updated full copy of the System Source Code, CapRock
shall return all prior copies of the System Source Code to RiverRock.
As used herein, the "CapRock Lockbox Representative" shall mean two
officers of CapRock, as agreed upon by CapRock and RiverRock. The
initial CapRock Lockbox Representative shall be Xxx Xxxxxx and Xxxx
Xxxxxxxx. The CapRock Lockbox Representatives may only be replaced or
removed by the written agreement of both CapRock and RiverRock. If
there is ever a refusal or excessive delay (exceeding ten (10) days
after written notice) of RiverRock in reasonably approving a CapRock
Lockbox Representative, the parties acknowledge and agree that the
CapRock Lockbox Representative shall be the individual serving in the
following officer position of CapRock, to be selected in the following
successive order: Chief Executive Officer, Executive Vice President,
President and Chief Financial Officer. After such designation,
RiverRock agrees to execute any and all reasonable documentation
necessary to provide such individual Lockbox (as defined below)
access. Upon request by the President of RiverRock, the CapRock
Lockbox Representative shall
LICENSE AGREEMENT Page 9
accompany a RiverRock representative, at such time reasonably
requested by RiverRock, for purposes of inspection of the content
of the Lockbox.
b. Upon receipt of the System Source Code, the CapRock Lockbox
Representative shall deliver the same to a safe deposit box (the
"Lockbox") at a financial institution (the "Lockbox Institution")
mutually agreed upon by CapRock and RiverRock. The initial Lockbox
Institution shall be ________________________. The Lockbox
Institution may only be changed by the written agreement of both
CapRock and RiverRock. The only persons having authority to access
the Lockbox will be the CapRock Lockbox Representatives.
c. If CapRock identifies what it in good faith believes to be a System
error causing a malfunction to the System operation, CapRock shall
contact a RiverRock Contact (the "Initial Error Notice"). As used
herein, the initial "RiverRock Contacts" shall mean any RiverRock
employee, including, without limitation, Xxxxx X. Xxxxxxxx. From time
to time, by written notice, RiverRock may change and/or limit the
RiverRock Contacts, but at no time shall the number of RiverRock
Contacts be less than four (4); provided, however, that if the total
number of RiverRock employees is less than four (4), the number of
RiverRock Contacts shall be equal to the number of RiverRock
employees.
d. The RiverRock Contacts shall respond to CapRock with reasonable
suggestions, if any, as to how to address the identified error or to
identify the time frame in which RiverRock can begin an analysis and
repair.
e. If within three (3) days from the Initial Error Notice, RiverRock has
not begun a good faith analysis concerning, and good faith efforts
with regard to, the repair of the identified error, the CapRock
Lockbox Representatives, or either of them, shall have the authority
to, and may, retrieve the System Source Code from the Lockbox and
deliver the System Source Code to the CapRock System Analyst. Prior
to retrieval of the System Source Code from the Lockbox, CapRock shall
provide notice to RiverRock by e-mail, telephone message or fax;
provided, however, that CapRock has no obligation to await a response
to such e-mail, telephone message or fax prior to retrieving the
System Source Code. The initial "CapRock System Analyst" shall be
Xxxx Xxxx. The CapRock System Analyst may be changed only by the
written agreement of RiverRock and CapRock, such agreement not to be
unreasonably withheld or delayed. If it becomes necessary to
designate a replacement, each of RiverRock and CapRock agree to
cooperate reasonably and in good faith regarding designation of a
replacement CapRock System Analyst. However, if a CapRock System
Analyst has not been agreed upon, within ten (10) days of written
request from CapRock to RiverRock for such agreement, CapRock shall
designate CapRock's highest ranking programmer as the CapRock System
Analyst.
LICENSE AGREEMENT Page 10
f. For seven (7) days after removal of the System Source Code from the
Lockbox, the CapRock System Analyst shall have the authority to review
the System Source Code with the design of identifying and correcting
the identified System error. While other personnel, whether CapRock
or otherwise, may provide assistance to the CapRock System Analyst's
efforts to correct the System error, such other personnel shall not
have access or the authority to review the System Source Code. If
during such seven (7) day period, RiverRock personnel responds to the
Initial Error Notice and in good faith begins substantial analysis and
repair of the identified error, the System Source Code will be
returned to the Lockbox and the CapRock System Analyst will turn error
analysis and repair over to RiverRock.
g. If after the seven (7) day period described in the preceding
subparagraph the CapRock System Analyst has not been able to repair
the System error and if RiverRock has still failed to begin good faith
analysis and repair efforts, CapRock has the authority to hire a third
party systems analyst, whether an individual or firm (the "Third Party
System Analyst") to begin repair efforts. The Third Party System
Analyst shall have access to the System Source Code to facilitate
these repairs. If RiverRock responds to the Initial Error Notice and
in good faith begins substantial analysis and repair of the identified
error during the period that the Third Party System Analyst has access
to the System Source Code, then the System Source Code will be
returned to the Lockbox and the Third Party System Analyst will turn
error analysis and repair over to RiverRock.
h. The System Source Code will only be revealed to the CapRock System
Analyst or the Third Party System Analyst after such party has
executed a non-disclosure and confidentiality agreement in a form
agreeable to both RiverRock and CapRock.
i. The parties acknowledge that the provisions of this paragraph 9. are
unique based upon the special relationship existing between the
parties. If the License is assigned by CapRock to any entity other
than a CapRock Permitted Assignee, as defined in paragraph 12. below,
or if CapRock sells all or substantially all of its assets or equity
to an entity other than a CapRock Permitted Assignee, this paragraph
shall be deleted in its entirety.
j. Except as permitted by the terms and conditions of this paragraph 9,
CapRock agrees not to disclose the System Source Code to any party.
k. Upon termination of this paragraph 9 or upon termination of this
Agreement, CapRock agrees to return all copies of the System Source
Code to RiverRock.
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10. CONFIDENTIALITY.
a. "Confidential Information" shall include, but not be limited to,
financial information, business plans, customer lists, billing
information, software source code technology, software object code
technology, other trade secrets, personnel information, and any other
material known to be or marked as confidential or proprietary.
b. It is understood and agreed that any Confidential Information of
either party hereto that may from time to time be made available or
become known to the other party hereto is to be treated as
confidential, is to be copied only as necessary to further the purpose
of this Agreement, is to be used solely in connection with performance
under this Agreement, and is to be disclosed only to employees who
have a need for access; provided, however, that the System Source Code
shall not be copied and may only be used pursuant to the terms and
conditions of paragraph 9.
c. In order to protect the confidentiality of the other party's
Confidential Information, each party hereto agrees to use measures
similar to or more restrictive than those measures each party uses to
protect its own similar Confidential Information; provided that, at a
minimum, the measures to be taken shall be reasonable and shall be
customary in the industry.
d. "Confidential Information" shall NOT include information that:
i. is now or subsequently becomes generally available to the public
with the prior written consent of the owner of such information;
ii. is released, in writing, by the owner of such information for
general publication;
iii. is independently developed by the receiving party without the use
of any Confidential Information or any other information received
in violation of a nondisclosure and/or confidentiality agreement;
or
iv. the receiving party lawfully obtains from a third party who has
the lawful right, in writing, to transfer or disclose such
information, without restriction.
e. Notwithstanding anything contained herein to the contrary, it shall
not be a breach of this provision for either party to disclose such
information required to be disclosed in connection with an
administrative, regulatory or judicial process or proceeding;
provided, however, that prompt notice to the non-disclosing party is
given of the possibility of such disclosure and that the party which
may be compelled to disclose shall use all reasonable efforts to
resist disclosure and to otherwise protect the
LICENSE AGREEMENT Page 12
information from further disclosure, including, without limitation,
seeking a protective order or similar ruling on the proceeding.
11. ENTIRE AGREEMENT. Except as may be contained in the Partnership
Agreement and its related documents (including, without limitation, the
Management Services Agreement), this Agreement and the Exhibits attached hereto
constitute the entire understanding between RiverRock and CapRock regarding the
subject matter hereof. No prior or present agreements or representations
regarding the subject matter hereof shall be binding upon any of the parties
hereto unless incorporated in this Agreement. No modification or change in this
Agreement shall be valid or binding upon the parties unless in writing and
executed by the parties to be bound thereby.
12. ASSIGNMENT. This Agreement is unique and personal and may not be
assigned except to a CapRock Permitted Assignee or except with the prior written
consent of both parties. As used herein, a "CapRock Permitted Assignee" shall
mean any entity to which the security holders of CapRock shall maintain direct
or indirect control. The parties agree that the occurrence of any one (1) or
more of the following shall cause a loss of "direct or indirect control" of the
assigning party (the "Assignor") and shall not be permitted except with the
prior written consent of the other party hereto:
a. the issuance or Transfer of an amount of the Assignor's securities or
other equity to elect a majority of Assignor's board of directors,
general partners, or other controlling body; or
b. the Transfer of all or substantially all of Assignor's assets, whether
in one transaction or a series of related transactions; or
c. the reorganization, merger or consolidation of Assignor with any other
entity with the reasonably likely result that the owners of the
Assignor on the date of the signing of such agreement relating to such
reorganization, merger or consolidation will not have sufficient
voting power after giving effect to such transaction to elect a
majority of the board of directors, general partners or other
controlling body of the surviving entity.
As used herein this paragraph 12., "Transfer" shall mean any sale, assignment,
transfer, lease or other disposal of property. Without limiting the foregoing,
the parties specifically acknowledge and agree that CapRock may assign its
rights under this Agreement to any one of the resultant entities arising from
that certain Agreement and Plan of Merger and Plan of Exchange among IWL
Holdings Corp., IWL Communications Incorporated, IWL Acquisition Corp., CapRock
Communications Corp., CapRock Acquisition Corp. and CapRock Fiber Network, Ltd.
dated on or about February 16, 1998.
13. CHOICE OF LAW, VENUE AND SERVICE OF PROCESS. This Agreement shall be
construed in accordance with the laws of the State of Texas and applicable
United States federal law and all claims and/or lawsuits in connection with this
Agreement must be brought in Dallas County, Texas, wherein exclusive venue shall
lie.
LICENSE AGREEMENT Page 13
14. ATTORNEYS' FEES. Except as otherwise provided herein, in the event of
litigation regarding this Agreement, the prevailing litigant shall be allowed to
recover the prevailing litigant's attorneys' fees, expenses, and costs of court
from the losing litigant.
15. DELIVERY OF NOTICES AND DELIVERY OF PAYMENTS. Unless otherwise
directed in writing by the parties, all notices given hereunder and all payments
to be made hereunder shall be sent to the addresses, as applicable, set forth on
the signature page hereof. All notices, requests, consents and other
communications under this Agreement shall be in writing and shall be deemed to
have been delivered on the date personally delivered or three (3) days after the
date deposited in the United States Postal Service, postage prepaid, by
certified mail, return receipt requested, or telegraphed and confirmed, or
delivered by electronic facsimile and confirmed. Any notice to CapRock shall
also be sent to its counsel: Xxxxxxx X. Xxxxxxx, Esquire, Hiersche, Martens,
Hayward, Xxxxxxxx & Xxxxxx, P.C., 00000 Xxxxxx Xxxxxxx, Xxxxx 000, XX 00,
Xxxxxx, Xxxxx 00000. Any notice to RiverRock shall also be sent to its
counsel: Xxxx Xxxxxxx, Esquire, Xxxxx Xxxxxxx Rain Xxxxxxx, 0000 Xxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxx 00000-0000.
16. NO PARTNERSHIP, ETC. This Agreement does not constitute and shall not
be construed as constituting a partnership or joint venture between CapRock and
RiverRock. Neither party shall have any right to obligate or bind the other
party in any manner whatsoever, and nothing herein contained shall give, or is
intended to give, any rights of any kind to any third persons.
17. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which will be deemed to be an original, and each of which alone and all
of which together, shall constitute one and the same instrument, but in making
proof of this Agreement it shall not be necessary to produce or account for each
copy of any counterpart other than the counterpart signed by the party against
whom this Agreement is to be enforced. This Agreement may be transmitted by
facsimile, and it is the intent of the parties for the facsimile (or a photocopy
thereof) of any autograph printed by a receiving facsimile machine to be an
original signature and for the facsimile (or a photocopy thereof) and any
complete photocopy of the Agreement to be deemed an original counterpart.
18. CAPTIONS. All captions in this Agreement are intended solely for the
convenience of the parties, and none shall effect the meaning or construction of
any provision.
19. FREE NEGOTIATION. The terms and conditions of this Agreement have
been negotiated fully and freely among the parties. Accordingly, the
preparation of this Agreement by counsel for a given party will not be material
to the construction hereof, and the terms of this Agreement shall not be
strictly construed against such party.
20. SEVERABILITY. If any provision of this Agreement shall be held
invalid or unenforceable, such invalidity or unenforceability shall attach only
to such provision and shall not in any manner affect or render invalid or
unenforceable any other provisions of this Agreement. This Agreement shall be
carried out as if any such invalid or unenforceable provision were not contained
LICENSE AGREEMENT Page 14
herein, and in place thereof, the parties desire that a court of competent
jurisdiction reform such part, term or provision in such manner as to
approximate the intent of the parties as expressed in this Agreement.
21. SURVIVAL. The following provisions shall survive the expiration or
earlier termination of this Agreement: paragraphs 6., 7., 9.k., 10., 13., 21.
and 23.
22. CONTRIBUTION OF SYSTEM OWNERSHIP. As noted above, and as more fully
described in the Partnership Agreement, in consideration of the rights and
obligations set forth herein, and in the Partnership Agreement CapRock and TTI
have agreed to contribute all of their respective ownership rights in and to the
System as part of their respective capital contributions to the Partnership.
Attached hereto as Exhibits "A" and "B" are copies of Bills of Sale and
Assignment which CapRock and TTI agree to execute with execution of this
Agreement to confirm this transfer and conveyance and which are hereby
incorporated by reference.
23. CAPROCK AND TTI INDEMNIFICATION OBLIGATIONS.
a. CapRock hereby agrees to indemnify, hold harmless and defend
RiverRock, the RiverRock Related Parties, as defined in subparagraph
7.b. above, TTI and the TTI Related Parties, as defined below, from
and against all "CapRock Systems Claims," which shall mean any and all
damages, demands, claims, losses, causes of action, liabilities,
lawsuits, judgments and expenses (including, without limitation,
reasonable attorneys' fees and expenses) arising from, relating to or
in connection with one (1) or more of the following:
i. a claim that any part of the System, as contributed to RiverRock
by CapRock, whether in whole or in part, infringes upon or
misappropriates a patent, copyright, trademark, trade secret,
privacy, publicity or other proprietary right of any third party;
or
ii. a claim that the use of any part of the System, as contributed to
RiverRock by CapRock, whether in whole or in part, infringes upon
or misappropriates a patent, copyright, trademark, trade secret,
privacy, publicity or other proprietary right of any third party.
b. For purposes of subparagraphs 23.a. and 23.b. "TTI Related Parties"
shall mean predecessors, successors, assigns, officers, directors,
shareholders, employees, agents and representatives of TTI. RiverRock
and/or TTI agree to notify CapRock of any such CapRock Systems Claims
within a reasonable time after RiverRock and/or TTI learns of same.
CapRock, at its own expense, shall defend RiverRock, the RiverRock
Related Parties, TTI and the TTI Related Parties from any and all
CapRock Systems Claims. RiverRock, the RiverRock Related Parties, TTI
and the TTI Related Parties reserve the right to participate in any
defense of the CapRock Systems Claims with
LICENSE AGREEMENT Page 15
counsel of their choice, and at their expense. In the event
CapRock fails to provide a defense, then, in addition to all other
CapRock Systems Claims, CapRock shall be liable for paying the
reasonable attorneys' fees and expenses incurred by RiverRock, the
RiverRock Related Parties, TTI and the TTI Related Parties
regarding the defense of the CapRock Systems Claims. RiverRock,
the RiverRock Related Parties, TTI and the TTI Related Parties, as
applicable, agree to reasonably assist in the defense of the
CapRock Systems Claims.
c. No settlement of the CapRock Systems Claims shall be valid or binding
without the prior approval of each of RiverRock and TTI, which
approvals shall not be unreasonably delayed or withheld. No
settlement may include any admission of fault or liability on the part
of the indemnified party without the prior written consent of the
indemnified party.
d. TTI hereby agrees to indemnify, hold harmless and defend RiverRock,
the RiverRock Related Parties, as defined in subparagraph 7.b. above,
CapRock and the CapRock Related Parties, as defined in subparagraph
6.b. above, from and against all "TTI Systems Claims," which shall
mean any and all damages, demands, claims, losses, causes of action,
liabilities, lawsuits, judgments and expenses (including, without
limitation, reasonable attorneys' fees and expenses) arising from,
relating to or in connection with one (1) or more of the following:
i. a claim that any part of the System, as contributed to RiverRock
by TTI, whether in whole or in part, infringes upon or
misappropriates a patent, copyright, trademark, trade secret,
privacy, publicity or other proprietary right of any third party;
or
ii. a claim that the use of any part of the System, as contributed to
RiverRock by TTI, whether in whole or in part, infringes upon or
misappropriates a patent, copyright, trademark, trade secret,
privacy, publicity or other proprietary right of any third party.
e. RiverRock and CapRock agree to notify TTI of any such TTI Systems
Claims within a reasonable time after RiverRock and/or CapRock learns
of same. TTI, at its own expense, shall defend RiverRock, the
RiverRock Related Parties, CapRock and the CapRock Related Parties
from any and all TTI Systems Claims. RiverRock, the RiverRock Related
Parties, CapRock and the CapRock Related Parties reserve the right to
participate in any defense of the TTI Systems Claims with counsel of
their choice, and at their expense. In the event CapRock fails to
provide a defense, then, in addition to all other TTI Systems Claims,
TTI shall be liable for paying the reasonable attorneys' fees and
expenses incurred by RiverRock, the RiverRock Related Parties, CapRock
and the CapRock Related Parties regarding the defense of the TTI
Systems Claims. RiverRock, the RiverRock Related Parties, CapRock and
LICENSE AGREEMENT Page 16
the CapRock Related Parties, as applicable, agree to reasonably assist
in the defense of the TTI Systems Claims.
f. No settlement of the TTI Systems Claims shall be valid or binding
without the prior approval of each of RiverRock and CapRock, which
approvals shall not be unreasonably delayed or withheld. No
settlement may include any admission of fault or liability on the part
of the indemnified party without the prior written consent of the
indemnified party.
24. ALTERNATIVE DISPUTE RESOLUTION.
a. MEDIATION. The parties agree to submit any dispute arising out of
paragraph 8. of this Agreement to non-binding mediation prior to
bringing such claim, controversy or dispute in an arbitral tribunal,
court or any other tribunal. The mediation shall be conducted in
Dallas, Texas, through either an individual mediator or a mediator
appointed by a mediation services organization or body experienced in
the mediation of general business disputes, agreed upon by the parties
and, failing such agreement within a reasonable period of time after a
party has notified the other party of its desire to seek mediation of
such dispute (not to exceed ten (10) days), by the American
Arbitration Association in accordance with its rules governing
mediation. The costs and expenses of mediation, including
compensation and expenses of the mediator (and except for the
attorneys' fees incurred by the parties), shall be borne by the
parties equally.
b. ARBITRATION.
i. If the parties are unable to resolve the claim, controversy or
dispute within sixty (60) days after the mediator has been
chosen, then any such controversy or dispute shall be finally
settled by arbitration in accordance with the terms hereof. Such
arbitration may be initiated by any party serving upon the other
party notice (1) stating that the notifying party desires to have
such controversy reviewed by a board of the arbitrators, and
(2) naming one person whom such party chooses to act as one of
the three arbitrators. Within fifteen (15) days after receipt of
such a notice, the other party shall designate one person to act
as arbitrator and shall notify the party requesting arbitration
of such designation and the name of the person so designated. If
the party upon whom a request for arbitration is served shall
fail to designate its arbitrator within fifteen (15) days after
receipt of such a notice, then the arbitrator designated by the
party requesting arbitration shall act as the sole arbitrator to
resolve the controversy at hand.
ii. If the parties have designated arbitrators the two arbitrators
designated shall promptly select a third arbitrator. If the two
arbitrators chosen by the parties
LICENSE AGREEMENT Page 17
hereto are not able to agree on such third arbitrator within
thirty (30) days after the second arbitrator is designated,
unless such time is extended by the parties, then either
arbitrator, on five (5) days' notice to the other, shall apply
to the American Arbitration Association to designate and appoint
such third arbitrator as promptly as practicable.
iii. The parties agree that all mediators and arbitrators chosen
pursuant to Sections 24.a. and 24.b. above shall not in any
manner be related to or affiliated with CapRock or RiverRock.
iv. The arbitral proceedings shall be conducted in Dallas, Texas in
accordance with and subject to the commercial arbitration rules
of the American Arbitration Association in effect from time to
time.
v. The decision in writing of the arbitrator(s) so selected or
appointed shall be final and conclusive upon both parties. The
costs and expenses of arbitration, including the compensation and
expenses of the arbitrator(s), shall be borne by the parties as
the arbitrator(s) may determine. Either party may apply to any
court which has jurisdiction for an order conforming the award.
Any right of either party to judicial action on any matter
subject to arbitration hereunder is hereby waived, except suit to
enforce the arbitration award.
25. OWNERSHIP OF THE SYSTEM. From and after execution of the Partnership
Agreement and this Agreement, including, without limitation, execution and
delivery of the Xxxx of Sales and Assignments attached hereto, and subject to
the rights granted to CapRock herein, title to and all applicable rights to
patents, copyrights, trademarks and trade secrets in the System, any Upgrades
and Improvements, any Specialized Customizations and Improvements and any other
modifications made to the System, whether or not authorized by RiverRock, shall
be the property of RiverRock.
LICENSE AGREEMENT Page 18
By signing in the spaces provided below, the parties have agreed to all of
the terms and conditions set forth in this Agreement.
AGREED: AGREED:
RIVERROCK SYSTEMS, LTD. CAPROCK COMMUNICATIONS
CORP.
By: Xxxxxxxx Technology, Inc.
General Partner
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxx Xxxxxx
------------------------------ ---------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxx Xxxxxx
---------------------------- -------------------------------
Title: President Title: Executive V.P.
--------------------------- ------------------------------
Address: 0000 Xxxxx Xxxxx Xxxx. Address: 00000 Xxxx Xxxx, Xxxxx 0000
------------------------- ----------------------------
Xxxxxx, XX 00000 Xxxxxx, Xxxxx 00000
--------------------------------- ------------------------------------
Telephone: 000-000-0000 Telephone: 000-000-0000
----------------------- --------------------------
Telecopier: 000-000-0000 Telecopier: 000-000-0000
---------------------- -------------------------
Date of Execution: June 16, 1998 Date of Execution: June 16, 1998
--------------- ------------------
AGREED FOR PURPOSES OF
PARAGRAPHS 22. AND 23. ONLY:
XXXXXXXX TECHNOLOGY, INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
----------------------------
Title: President
---------------------------
Address: 0000 Xxxxx Xxxxx Xxxx.
-------------------------
Xxxxxx, XX 00000
---------------------------------
Telephone: 000-000-0000
-----------------------
Telecopier: 000-000-0000
----------------------
Date of Execution: June 16, 1998
---------------
LICENSE AGREEMENT Page 19
EXHIBIT "A"
XXXX OF SALE AND ASSIGNMENT
This Xxxx of Sale and Assignment is made and entered into effective the
____ day of May, 1998, in Dallas, Texas, by and between CAPROCK COMMUNICATIONS
CORP., a Texas corporation ("CapRock"), and RIVERROCK SYSTEMS, LTD., a Texas
limited partnership ("RiverRock" or "Transferee").
WHEREAS, effective this date, CapRock did enter into and execute that
certain Agreement of Limited Partnership of RiverRock Systems, Ltd. (the
"Partnership Agreement"); and
WHEREAS, as part of CapRock's capital contribution to RiverRock, CapRock
did agree to transfer and assign all of its right, title and interest in and to
the SQL Billing System (the "System") to RiverRock, with CapRock receiving a
non-exclusive license with regard to future use of the System, all as more fully
described in the Partnership Agreement; and
WHEREAS, the parties hereto desire to enter into this Xxxx of Sale and
Assignment to document the foregoing;
NOW THEREFORE, in consideration of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, CapRock and Transferee hereby agree as follows:
1. CapRock does hereby convey, transfer, assign, set over and deliver to
Transferee all of its right, title and interest in and to that certain software
program titled the SQL Billing System, including any and all source code, object
code, algorithms, drawings, schematics, modules, routines, subroutines,
techniques, other documentation and the like, and whether such coding or other
related material is in final, beta or any other stages of progress (the
"Software");
2. In further recognition of the full transfer of the Software, CapRock
hereby CONVEYS, QUITCLAIMS, GRANTS, TRANSFERS and ASSIGNS to Transferee and
Transferee hereby accepts from CapRock the CONVEYANCE, QUITCLAIM, GRANT,
TRANSFER and ASSIGNMENT, of all CapRock's right, title and interest, of any kind
and nature, free from all liens, claims and encumbrances, throughout the world,
in perpetuity, in and to the Software, and in and to all derivatives which may
be made therefrom (the "Derivatives"), in all media existing today and/or
hereafter developed, including, without limitation, all rights to xxx for past
infringement in and to the Software and including the copyrights, trademarks,
service marks, patents, knowhow, inventions, discoveries, trade secrets,
proprietary and confidential information relating in and to the Software and the
Derivatives, and all extensions and renewals thereof.
LICENSE AGREEMENT Page 20
3. The terms and conditions of this Xxxx of Sale and Assignment shall
inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and assigns of the parties hereto.
4. THIS XXXX OF SALE AND ASSIGNMENT IS MADE PURSUANT TO AND SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND
APPLICABLE FEDERAL LAW. THE APPROPRIATE STATE OR FEDERAL COURTS LOCATED IN
DALLAS COUNTY, TEXAS, SHALL HAVE JURISDICTION OVER ALL MATTERS ARISING UNDER
THIS XXXX OF SALE AND ASSIGNMENT AND SHALL BE THE PROPER FORUMS IN WHICH TO
ADJUDICATE SUCH MATTERS.
5. In case of any one or more of the provisions of this Xxxx of Sale and
Assignment shall, for any reason, be held to be invalid, illegal, or
unenforceable in any effect, any other provision hereof and this instrument
shall be construed as if such invalid, illegal, or unenforceable provision(s)
had never been contained herein. Such invalid, illegal, or unenforceable
provision(s) shall be given effect to the maximum extent permitted by law.
6. The terms and conditions of this Xxxx of Sale and Assignment have been
negotiated fully and freely among the parties hereto, all of whom have had the
full and complete opportunity to be represented by legal counsel. This Xxxx of
Sale and Assignment may not be modified or amended except by an instrument in
writing executed by both CapRock and Transferee.
7. CapRock does hereby bind itself and its successors and assigns to
forever warrant and defend the title to the Software unto Transferee, against
all persons whosoever claiming, or to claim the same, or any part thereof.
CapRock does hereby represent and warrant to Transferee that: (a) the Software
does not infringe on any intellectual property right of any person or entity and
is hereby transferred and assigned to Transferee free and clear of any and all
claims, liens and encumbrances; (b) CapRock has all right and authority to enter
into and fulfill the terms of this Xxxx of Sale and Assignment; and (c) CapRock
owns fifty percent (50%) of the System and is transferring all such ownership to
RiverRock.
IN WITNESS WHEREOF, the undersigned parties hereto have executed this Xxxx
of Sale and Assignment effective the date first above written.
CAPROCK COMMUNICATIONS CORP. RIVERROCK SYSTEMS, LTD.
By: Xxxxxxxx Technology, Inc.
General Partner
By: /s/ Xxx Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx
------------------------------ --------------------------------
Name: Xxx Xxxxxx Name: Xxxxx X. Xxxxxxxx
---------------------------- ------------------------------
Title: Executive Vice President Title: President
--------------------------- -----------------------------
Date of Execution: June 16, 1998 Date of Execution: June 16, 1998
--------------- -----------------
LICENSE AGREEMENT Page 21
EXHIBIT "B"
XXXX OF SALE AND ASSIGNMENT
This Xxxx of Sale and Assignment is made and entered into effective the
____ day of May, 1998, in Dallas, Texas, by and between XXXXXXXX TECHNOLOGY,
INC. a Texas corporation ("TTI"), and RIVERROCK SYSTEMS, LTD., a Texas limited
partnership ("RiverRock" or "Transferee").
WHEREAS, effective this date, TTI did enter into and execute that certain
Agreement of Limited Partnership of RiverRock Systems, Ltd. (the "Partnership
Agreement"); and
WHEREAS, as part of TTI's capital contribution to RiverRock, TTI did agree
to transfer and assign all of its right, title and interest in and to the SQL
Billing System (the "System") to RiverRock; and
WHEREAS, the parties hereto desire to enter into this Xxxx of Sale and
Assignment to document the foregoing;
NOW THEREFORE, in consideration of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, TTI and Transferee hereby agree as follows:
1. TTI does hereby convey, transfer, assign, set over and deliver to
Transferee all of its right, title and interest in and to that certain software
program titled the SQL Billing System, including any and all source code, object
code, algorithms, drawings, schematics, modules, routines, subroutines,
techniques, other documentation and the like, and whether such coding or other
related material is in final, beta or any other stages of progress (the
"Software");
2. In further recognition of the full transfer of the Software, TTI
hereby CONVEYS, QUITCLAIMS, GRANTS, TRANSFERS and ASSIGNS to Transferee and
Transferee hereby accepts from TTI the CONVEYANCE, QUITCLAIM, GRANT, TRANSFER
and ASSIGNMENT, of all TTI's right, title and interest, of any kind and nature,
free from all liens, claims and encumbrances, throughout the world, in
perpetuity, in and to the Software, and in and to all derivatives which may be
made therefrom (the "Derivatives"), in all media existing today and/or hereafter
developed, including, without limitation, all rights to xxx for past
infringement in and to the Software and including the copyrights, trademarks,
service marks, patents, knowhow, inventions, discoveries, trade secrets,
proprietary and confidential information relating in and to the Software and the
Derivatives, and all extensions and renewals thereof.
LICENSE AGREEMENT Page 22
3. The terms and conditions of this Xxxx of Sale and Assignment shall
inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and assigns of the parties hereto.
4. THIS XXXX OF SALE AND ASSIGNMENT IS MADE PURSUANT TO AND SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND
APPLICABLE FEDERAL LAW. THE APPROPRIATE STATE OR FEDERAL COURTS LOCATED IN
DALLAS COUNTY, TEXAS, SHALL HAVE JURISDICTION OVER ALL MATTERS ARISING UNDER
THIS XXXX OF SALE AND ASSIGNMENT AND SHALL BE THE PROPER FORUMS IN WHICH TO
ADJUDICATE SUCH MATTERS.
5. In case of any one or more of the provisions of this Xxxx of Sale and
Assignment shall, for any reason, be held to be invalid, illegal, or
unenforceable in any effect, any other provision hereof and this instrument
shall be construed as if such invalid, illegal, or unenforceable provision(s)
had never been contained herein. Such invalid, illegal, or unenforceable
provision(s) shall be given effect to the maximum extent permitted by law.
6. The terms and conditions of this Xxxx of Sale and Assignment have been
negotiated fully and freely among the parties hereto, all of whom have had the
full and complete opportunity to be represented by legal counsel. This Xxxx of
Sale and Assignment may not be modified or amended except by an instrument in
writing executed by both TTI and Transferee.
7. TTI does hereby bind itself and its successors and assigns to forever
warrant and defend the title to the Software unto Transferee, against all
persons whosoever claiming, or to claim the same, or any part thereof. TTI does
hereby represent and warrant to Transferee that: (a) the Software does not
infringe on any intellectual property right of any person or entity and is
hereby transferred and assigned to Transferee free and clear of any and all
claims, liens and encumbrances; (b) TTI has all right and authority to enter
into and fulfill the terms of this Xxxx of Sale and Assignment; and (c) TTI owns
fifty percent (50%) of the System and is transferring all such ownership to
RiverRock.
IN WITNESS WHEREOF, the undersigned parties hereto have executed this Xxxx
of Sale and Assignment effective the date first above written.
XXXXXXXX TECHNOLOGY, INC. RIVERROCK SYSTEMS, LTD.
By: Xxxxxxxx Technology, Inc.
General Partner
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
------------------------------ --------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxxxx
---------------------------- ------------------------------
Title: President Title: President
--------------------------- -----------------------------
Date of Execution: June 16, 1998 Date of Execution: June 16, 1998
--------------- -----------------
LICENSE AGREEMENT Page 23
June 11, 1998
LICENSE AGREEMENT Page 24
