NAVTECH APPLIED RESEARCH, INC.
Software License Agreement
THIS IS A Software License Agreement (called the "Agreement") between Navtech
Applied Research, Inc., an Ontario corporation with its principal place of
business located at 000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx, X0X
0X0 (called "NARI") and Compuflight, Inc., a Delaware corporation, with its
principal place of business located at 0000 Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx
00000 (called "Compuflight").
1.0 BACKGROUND CONTEXT.
1.1 In July 1998, NARI acquired the Weather and NOTAM System Software
described in Exhibit A (called the "NARI Software").
1.2 The NARI Software is a very complex tool that may be used as the
central component of a computerized weather data processing and reporting
system.
1.3 Compuflight is in the business of providing flight route planning and
other data to airlines and other air traffic managers.
1.4 Compuflight desires to license the NARI Software so that it will have
the ability to add weather data to the information it provides to its present
and future customers.
1.5 This Agreement sets forth the terms and conditions under which
Compuflight is licensed to use the NARI Software.
2.0 GRANT OF LICENSE.
2.1 NARI grants Compuflight a non-exclusive, non-transferable license to do
each of the following for the duration of this Agreement: (a) install the NARI
Software on computer systems located at Compuflight's place or places of
business, (b) configure the NARI Software for use in Compuflight's business, (c)
modify and create derivatives of the NARI Software to the extent reasonably
necessary to maintain and enhance the NARI Software for use in Compuflight's
business, and (d) use the NARI Software to process data for Compuflight's
internal use and for sale to Compuflight's customers.
2.2 Compuflight may exercise its rights under this License directly using
its own facilities, personnel, or contractors and may also exercise its rights
using the facilities, personnel, or contractors of its wholly owned subsidiary.
2.3 Compuflight is expressly prohibited from sublicensing any of
Compuflight's rights under this Agreement to any third party and may only
distribute processed data to its third party customers.
2.4 All copies of the NARI Software, including the original copies provided
by NARI and any copies or derivatives of the NARI Software created by
Compuflight shall be kept in the possession and under the control of Compuflight
or its authorized wholly owned subsidiary at all times.
2.5 NARI reserves all rights not expressly granted to Compuflight under
this Agreement.
3.0 TERM OF THIS LICENSE.
3.1 The term of this Agreement is for a period of one (1) year beginning on
August 1, 1998 and ending on July 31, 1999. Thereafter, this Agreement shall
automatically renew for an additional one (1) year term beginning on August 1
and ending the following July 31 each time it expires unless either party gives
the other written notice, not less than sixty (60) days before the beginning of
any renewal term, that it does not want the Agreement to automatically renew on
the expiration of the then current term. The automatic renewal of this Agreement
in accordance with this Paragraph 3.0 shall not renew or extend any warranty
beyond its initial term provided in this Agreement.
3.2 Either party shall have the right to terminate this Agreement at any
time if the other party commits a material breach of this Agreement and fails to
cure that breach within sixty (60) days after receiving written notice of the
breach from the non breaching party unless the breach is cured before the end of
the sixty day cure period.
3.3 Upon the expiration or termination of this Agreement Compuflight shall
promptly destroy all copies of the NARI Software and its derivatives.
Compuflight's management shall provide NARI with written certification that all
copies of the NARI Software and its derivatives have been destroyed within
thirty (30) days after the effective date of the expiration or termination of
this Agreement.
4.0 RECORD KEEPING, ROYALTY PAYMENTS, AND AUDIT RIGHTS.
4.1 Compuflight shall have complete discursion in the marketing of data
processed using the NARI Software or its derivatives except that Compuflight
shall price, market, and distribute the data it processes using the NARI
Software or its derivatives separately from Compuflight's other products, data,
and services. Compuflight shall set up and maintain a separate set of accounts
to record the entire gross revenue it receives from the sale of data processed
using the NARI Software or its derivatives following generally accepted
accounting practices (called the "Gross Revenue"). The components of Gross
Revenue are described and defined in Exhibit B. All records and payments will be
maintained in U. S. Dollars, and any revenue received in other currencies shall
be converted to U. S. Dollars by Compuflight for record keeping, reporting, and
payment purposes under this Agreement.
4.2 Compuflight shall allocate the Gross Revenue it receives from the sale
of data processed using the NARI Software into a "Royalty Base Account" and a
"Non Royalty Base Account" in accordance with the definitions and criteria set
forth in Exhibit B.
4.3 Compuflight shall accrue a royalty payable to NARI equal to ten percent
(10%) of the revenue allocated to the Royalty Base Account each month as it is
received by Compuflight.
4.4 A royalty report setting forth the Gross Revenue for the preceding
month, the amount allocated to the Non Royalty Base Account, the amount
allocated to the Royalty Base Account, and the amount of the royalty due to NARI
shall be prepared and sent to NARI within thirty (30) days after the end of each
month in which Compuflight receives any Gross Revenue from the sale of data
processed using the NARI Software or its derivatives.
4.5 The monthly royalty due to NARI under this Agreement may either be
applied to the payment of any amounts due to Compuflight from NARI, paid by a
bank check payable to NARI, or some combination of the two in Compuflight's
reasonable discretion.
4.6 If any royalty report is not provided and any payment due is not
credited against NARI's obligations to Compuflight or paid to NARI within
fifteen (15) days after the due date, the royalty due shall be subject to a late
payment charge equal to one and one half percent (11/2%) per month or fraction
thereof from the original due date until it is actually paid or credited to
NARI's obligations to Compuflight (or the highest amount allowed by law,
whichever is less).
4.7 NARI shall have the right to have an independent certified public
accountant retained and paid by the NARI audit Compuflight's records once each
year to verify the accuracy of Compuflight's records and royalty reports. In the
event that any such audit discloses an underpayment of more than two percent
(2%), Compuflight shall reimburse the NARI for the reasonable cost of the audit.
Compuflight shall promptly pay any past due royalties together with a late
payment charge calculated from the original due date until the past due amount
is paid at a rate eighteen percent (18%) per annum or the highest amount allowed
by law, whichever is less.
5.0 SOURCE CODE.
NARI will provide the NARI Software to Compuflight in both source code and
executable code form.
6.0 SOFTWARE SUPPORT.
NARI will provide Compuflight with the source code for the NARI Software
under this License, and accordingly Compuflight will be solely responsible for
providing its own technical support and software maintenance services as and
when they are required. NARI shall have no support obligation to Compuflight
under this Agreement. The level and structure of the royalties Compuflight is
required to pay to NARI under this Agreement reflect the allocation of support
and maintenance responsibilities for the NARI Software to Compuflight.
7.0 NONDISCLOSURE OBLIGATION.
7.1 All copies of the NARI Software, including the original copies provided
by NARI and any copies or derivatives of the NARI Software created by
Compuflight, shall be deemed to be NARI's confidential information. Compuflight
shall protect all copies of the NARI Software and its derivatives from
unauthorized use or disclosure.
7.2 Compuflight shall only use the NARI Software as provided in this
Agreement, and for a period of three (3) years from the date of this Agreement
expires or terminates, Compuflight shall not disclose any information related to
the NARI Software or its derivatives to any other person, firm, or corporation,
or use the information for its own benefit except as expressly provided in this
Agreement. Compuflight shall use reasonable care to prevent use or disclosure of
the NARI Software or related information, and no less stringent degree of care
to avoid disclosure or use of such software and information than Compuflight
employs with respect to its own confidential software and information which it
does not wish to be disseminated, published or disclosed.
7.3 The following shall not be deemed to be confidential, and Compuflight
shall not owe a duty of confidentiality to NARI with respect to information
that:
7.3.1 is already known to Compuflight at the time of disclosure
through lawful channels of communication; or
7.3.3 is or becomes publicly known through no wrongful act of
Compuflight; or
7.3.4 is rightfully received from a third party without similar
restriction and without breach of this Agreement; or
7.3.5 is independently developed by Compuflight without breach of this
Agreement; or
7.3.6 is furnished to a third party by NARI without a similar
restriction on the third party's rights; or
7.3.7 is approved for release by written authorization of NARI.
8.0 LIMITED WARRANTY AND DISCLAIMER OF LIABILITY.
The NARI Software provided under this Agreement is a complex business tool.
Its successful installation and operation is dependent in large part on the
skill of Compuflight in designing and completing its implementation of the NARI
Software and upon the operating practices and procedures employed by Compuflight
in its use of the NARI Software.
8.1 NARI warrants that the original media which the NARI Software is
recorded on and the documentation provided with it are free from defects in
material and workmanship under normal use. NARI warrants that the NARI Software
itself will perform substantially in accordance with the specifications set
forth in the documentation provided with the NARI Software, provided that the
software is properly configured, installed, and operated by Compuflight.
8.2 NARI expressly excludes any warranty that the NARI Software is Year
2000 compliant or that it will properly process date information after December
31, 1999. Compuflight assumes the entire responsibility for testing its
implementation of the NARI Software for year 2000 compliance and for correcting
any year 2000 problems that may exist in Compuflight's installation of the NARI
Software. This warranty is designated as a Year 2000 Readiness Disclosure under
the Year 2000 Information And Readiness Disclosure Act.
8.3 The above warranties are made for a period of ninety (90) days from the
commencement of the initial term of this Agreement. Items replaced under
warranty will be warranted for the remainder of the original warranty term or
thirty (30) days whichever is greater.
8.4 If there is a defect in any media or documentation, NARI will replace
the defective item without charge on an exchange basis.
8.5 If the NARI Software itself does not perform in substantial accordance
with the specifications set forth in the documentation provided by NARI or if
there is an error in the documentation, NARI will either replace or correct the
defective NARI Software or documentation without additional charge. This will be
done by providing Compuflight with corrective code, a corrected copy of the NARI
Software, or corrected documentation on an exchange basis, at NARI's option. If
for any reason, NARI is unable to cure a breach of this warranty after a
reasonable effort, NARI may, at its sole option, terminate this license and
refund the royalties actually paid by Compuflight for the defective delivery.
8.6 NARI does not warrant that the functions contained in the NARI Software
will meet Compuflight's requirements or that the operation of the NARI Software
will be uninterrupted or error free. The warranty does not cover any media or
documentation which has been subjected to damage or abuse by Compuflight. The
NARI Software warranty does not cover any copy of the NARI Software once it has
been altered or changed in any way by Compuflight. NARI is not responsible under
this warranty for problems caused by changes in the operating characteristics of
the computer hardware or operating systems which are made after the execution of
this Agreement or the delivery of the NARI Software, whichever first occurs, nor
for problems in the interaction of the NARI Software with any other software
unless it is provided or specified by NARI.
8.7 ANY IMPLIED WARRANTIES COVERING THE MEDIA, THE DOCUMENTATION, OR THE
NARI SOFTWARE INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED.
8.8 NARI SHALL NOT IN ANY CASE BE LIABLE FOR SPECIAL, INCIDENTAL,
CONSEQUENTIAL, INDIRECT, OR OTHER SIMILAR DAMAGES ARISING FROM BREACH OF
WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL THEORY EVEN IF NARI
OR ITS AGENT HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.9 In order to obtain warranty replacements for any defective NARI
Software or documentation, Compuflight must contact NARI during the warranty
period. Compuflight must be able to provide NARI with sufficient technical
information about the nature of the apparent problem and the precise
circumstances that give rise to the problem, to enable NARI to reproduce the
difficulty.
8.10 The warranties set forth above are in lieu of all other warranties,
whether oral, written, express, or implied, and THE REMEDIES SET FORTH ABOVE ARE
CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES. Only an authorized officer of NARI may
make modifications to this warranty, or additional warranties binding on NARI.
Accordingly, additional statements such as advertising or presentations, whether
oral or written, do not constitute warranties by NARI and should not be relied
upon as such.
9.0 PATENT, COPYRIGHT, TRADEMARK, AND TRADE SECRET INDEMNITY.
NARI will defend or settle, at NARI's expense, any action brought against
Compuflight based on a claim that the use of the NARI Software as provided for
in this Agreement infringes any U.S. patent, U. S. trademark, or any copyright,
or trade secret rights of a third party, provided that Compuflight, at
Compuflight's expense, (a) notifies NARI promptly in writing of any claim, (b)
supplies NARI with all available information, assistance and authority that NARI
requires to defend or settle the claim, and (c) that Compuflight permits NARI to
control the defense, compromise, or settlement of the claim. Compuflight may not
incur any cost or expense subject to this indemnity without the advance written
consent of NARI. If NARI determines that the NARI Software does or is likely to
infringe the rights of a third party, NARI may at its option: (a) procure at no
cost to Compuflight the right to continue to use the NARI Software in accordance
with this Agreement, (b) replace or modify the NARI Software to avoid the
infringement on an exchange basis, or (c) terminate this Agreement and refund
the license royalties paid by Compuflight for the use of the NARI Software
during the three (3) months immediately preceding the termination of this
Agreement under this provision of Paragraph 9.0. This provision states NARI's
entire liability for any infringement of any third party rights.
10.0 GENERAL CONDITIONS.
10.1 This Agreement shall in all respects be interpreted, construed in
accordance with, and governed by the internal laws of the State of California,
without regard to the rules on conflict of laws. The parties exclude the
application of the 1980 United Nations Convention on Contracts for the
International Sale of Goods if otherwise applicable. The place of making and the
place of performance for all purposes shall be Monterey, California regardless
of the actual place of execution or performance. In the event of any litigation
between the parties, the parties stipulate that the sole and exclusive
jurisdiction for such action shall be in the State Courts for the County of
Monterey, California or the United States District Court for the Northern
District of California. Both parties agree that the above referenced courts
shall have personal and exclusive jurisdiction over the parties for any dispute
arising out of this Agreement that is not covered by the Arbitration provision.
10.2 Except for the right of either party to apply to a court of competent
jurisdiction for a Temporary Restraining Order, a Preliminary Injunction, or
other equitable relief to preserve the status quo or prevent irreparable harm
pending the selection and confirmation of the arbitrator(s), all disputes,
controversies, or differences which may arise between the parties, out of, in
relation to, or in connection with this Agreement, or the breach thereof, shall
be finally settled by binding arbitration pursuant to the Commercial Arbitration
Rules of the American Arbitration Association in effect as of the date the
dispute arises. Any such arbitration shall be under the rules and administration
of the American Arbitration Association's San Francisco office, and all hearings
shall be held in the city of San Jose, California. The arbitrator(s) shall
enforce the express terms of this Agreement, shall follow the applicable law
where the Agreement is silent on a matter in dispute, and shall have no
authority to award punitive damages nor any damages expressly excluded by the
terms of this Agreement. All proceedings in any arbitration shall be conducted
in the English language. The arbitrator's award may be enforced in any court of
competent jurisdiction.
10.3 This Agreement sets forth the entire agreement and understanding of
the parties relating to the subject matter herein and merges all prior
discussions, proposals, advertising, or other exchanges between them. No
modification of or amendment to this Agreement, nor any waiver of any rights
under this Agreement, shall be effective unless in writing and signed by both
parties to this Agreement.
10.4 Any notice required or permitted by this Agreement shall be in writing
and shall be sent by FAX and confirmed by prepaid express courier or registered
air mail addressed to the other party at the address shown at the beginning of
this Agreement or at such other address for which such party gives notice
hereunder. Such notice shall be deemed to have been given the earlier of the
date of actual receipt or five (5) days after deposit in the mail.
10.5 Nonperformance of either party shall be excused to the extent that
performance is rendered impossible by strike, fire, flood, earthquakes,
governmental acts or orders or restrictions, failure of suppliers, or
contractors, or any other reason where failure to perform is beyond the control
and not caused by the negligence of the non-performing party.
10.6 If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
10.7 This Agreement is not transferable without the prior written consent
of NARI. Once transferred, this Agreement shall be binding upon and be for the
benefit of both the original and the substitute parties hereto, their successors
and assignees.
10.8 In any litigation or arbitration between the parties, the prevailing
party shall be entitled to reasonable attorney fees and all costs of proceedings
incurred in enforcing this Agreement.
10.9 In no case shall NARI's liability under this Agreement exceed the
royalties paid by Compuflight during the three (3) months immediately preceding
the data the claim giving rise to the liability accrued.
10.10 NARI rejects any and all printed terms and conditions contained on
any purchase order or other ordering document submitted by Compuflight now and
hereafter. The parties' performance under this Agreement shall be governed
exclusively by the terms and conditions contained in this Agreement and any
signed written amendments, supplements, extensions to it.
10.11 Paragraph headings are for convenience only and shall not be
considered in the interpretation of this Agreement.
10.12 NARI and Compuflight are and shall remain independent contractors.
Neither party is the representative or agent of the other and neither party
shall have any power to assume any obligations on behalf of the other.
10.13 This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one
instrument.
10.13 NARI and Compuflight agree that the terms and conditions of this
Agreement are confidential, and that neither party shall disclose the contents
of this Agreement without the prior written consent of the other.
EXECUTED BY THE PARTIES AS PROVIDED BELOW:
Navtech Applied Research, Inc. Compuflight, Inc.
By: /s/ Xxxxxxx English By: /s/ Xxxxx Xxxxxx
--------------------------- ---------------------------
Title: President Title: Chief Operating Officer
-------------------------- ---------------------------
Date: August 1, 1998 Date: August 1, 1998
