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EXHIBIT 10.22
INTERWORLD CORPORATION SOFTWARE LICENSE AGREEMENT
This Software License Agreement is entered into and made effective on February
4, 1998, between InterWorld Corporation ("InterWorld"), a Delaware corporation,
with offices at 000 Xxxxxx Xx., Xxx Xxxx X.X. 00000, and Digital Commerce
Corporation ("Client") a Delaware corporation, with offices at 00000 Xxxxxxx
Xxxxxx Xxxxx, Xxxxxx, XX 00000.
1. DEFINITIONS
"Agreement" means this Software License Agreement, Exhibit A, and any
other addenda attached hereto, and each Supplemental Exhibit A signed by both
parties. "Functionality Specifications" means the functionality of the Software
as described in the Documentation. "Software" means the object code (machine
readable) version of the software product(s) listed in Exhibit A, or any
subsequent Exhibit A, including prior and future releases. "Price List" means
the then-current price list for the country in which the Software a to be used.
"Documentation" means installation manuals and user manuals for the Software.
"Purchase Order" means a purchase authorization document issued by Client for
the licensing of InterWorld Software. "Designated Platform" means the computer
central processing unit ("CPU") and operating system software on which the
InterWorld Software is running and is located at the site designated on Exhibit
A.
2. LICENSE
2.1 InterWorld hereby grants to Client a non-exclusive,
non-transferable license to use the Software on the Designated Platform for: (i)
internal data processing at Client locations within the United States and
Canada; and (ii) enabling on-line users to access information about, and to
order electronically, products and services offered by Client on its Web site.
Client may make copies of the Software in accordance with any such rights
granted hereunder or set forth in an applicable Exhibit A. Client shall notify
InterWorld if Client elects to transfer the Software, at no additional charge to
Client: (i) to a different Client location; or (ii) from one Designated Platform
to another Designated Platform, provided such new Designated Platform runs the
same binary version of the Software and the same number of processors.
2.2 The Software and all copies (in whole or in part) shall remain the
exclusive property of InterWorld and its suppliers. Client shall not modify,
reverse, engineer, decompile or reverse assemble any Software or part thereof
(or otherwise attempt to derive the source code for the Software), except as
expressly described in the Documentation. Client shall not use the Software in a
timesharing arrangement nor encumber, rent, lease, transmit, distribute or
transfer the Software to any third party for any purpose.
2.3 Client may make a reasonable number of copies of the Software for
inactive back-up or archival purposes. Client may also make copies of the
Documentation for its own use.
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3. CONFIDENTIALITY
3.1 Neither party shall disclose or use any business and/or technical
information of the other party designated orally or in writing as "Confidential"
or "Proprietary" (together "Confidential Information") without the prior written
consent of the other party. "Confidential Information" includes, without
limitation, the Software, (including methods and concepts). Documentation and
all information relating to the disclosing party's business a financial affairs.
All Confidential Information shall remain the sole property of the disclosing
party.
3.2 Each party shall expressly undertake, using reasonable efforts not
less than it exercises for its own confidential materials, to retain in
confidence, and to require its employees and consultants to retain in confidence
all Confidential Information. Confidential Information shall not include any
information that: (i) is already known to the other party free of any obligation
to keep it confidential; (ii) is or becomes publicly known through no wrongful
act by the other party; (iii) is received by the other party from a third party
without any restriction on confidentiality; (iv) is independently developed by
one party without access to the Confidential Information of the other.
3.3 Client shall not release the results of any benchmark of the
Software to any third party without the prior written approval of InterWorld for
each such release.
4. PROPRIETARY NOTICES
The Software and related Documentation are proprietary and protected by
copyright, patent, trademark and/or trade secret law. All proprietary notices
incorporated in or fixed to the Software or Documentation shall be duplicated by
Client on all copies or extracts thereof and shall not be altered, removed or
obliterated.
5. AUDIT
InterWorld or its authorized representatives shall have the right,
during normal business hours to audit the relevant records of Client to verify
its compliance with this Agreement. If the number of copies of the Software is
found to be greater than that contracted for, or the platform on which the
Software is installed differs from the Designated Platform specified, Client
shall be invoiced for such additional copies at the price set forth in the
then-current Price List.
6. IDENTIFICATION
Client shall display the file containing the phrase "Powered by
InterWorld" on the initial screen seen by customers or other end-users when they
enter a Software application. InterWorld reserves the right periodically to
change this file, and Client shall use commercially reasonable efforts to effect
such change upon notice from and delivery by InterWorld of such revised file.
This phrase shall be a hypertext link to the following Universal Resource
Locator ("URL"): xxx.xxxxxxxxxx.xxx.
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7. EXPORT CONTROL
Client shall not transfer, directly or indirectly, any restricted
Software or technical data received from InterWorld, or the direct product of
such data, to any destination subject to export restrictions under U.S. law,
unless prior written authorization has been obtained from the appropriate U.S.
agency.
8. PAYMENTS
8.1 Upon InterWorld's receipt of Client's Purchase Order, InterWorld
shall deliver the applicable Software and Documentation to Client by physical
medium, electronically or otherwise.
8.2 Payment is due InterWorld upon execution of this Agreement, or in
the case of subsequent licensing of Software, as specified on the applicable
Exhibit A. Client will pay all applicable shipping charges and sales, use,
personal property or similar taxes, tariffs or governmental charges, exclusive
of InterWorld's income and corporate franchise taxes. Client shall reimburse
InterWorld for all reasonable costs incurred (including reasonable attorneys'
fees) in collecting past due amounts.
8.3 Client must purchase a support and maintenance plan ("Support") for
the first year for all Software licensed hereunder. Client will be invoiced for
first year Support upon execution of this Agreement. Support shall commence on
the date of invoice. Fees for Support in subsequent years may be purchased
annually in advance ("Support Fees"). Client will be invoiced one month prior to
the anniversary of the Support commencement date, unless Client notifies
InterWorld in writing of its desire not to renew maintenance 60 days prior to
the end of the existing maintenance period. The renewal invoices will be due net
thirty (30) days from the invoice date. Client may reinstate lapsed Support for
any then currently supported Software by paying all Support Fees in arrears and
all time and travel expenses incurred in updating the Software to the current
version.
9. SUPPORT AND MAINTENANCE
Provided Client has paid applicable Support Fees, InterWorld shall
support the Software in accordance with the then current policies and procedures
for such support plan and as follows: Client shall designate a primary and
secondary Client support staff for all communications with InterWorld's
technical support representatives; each support staff may communicate with
InterWorld via telephone, facsimile or email for problem resolution during
InterWorld's published Support hours corresponding to the level of Support
purchased; and InterWorld shall make available to Client all updates to the
Software commercially released by InterWorld during the Support year. Updates
consist of new releases of a particular Software version which provides
functional enhancements and error corrections (for example 1.1 to 1.2).
Depending on the level of Support purchased by Client, InterWorld may reserve
the right to charge a fee for functional enhancements included in the updates.
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10. WARRANTY/LIMITATION OF LIABILITY
10.1 InterWorld warrants that, for a period of ninety (90) days after
receipt by Client of the Software (the "Warranty Period"), the media on which
the Software is delivered will be free of defects in material and workmanship
under normal use and the unmodified Software, when properly installed and used,
will conform in all material respects to the Functional Specifications. Clients
sole remedy in the event of non conformity of the Software, at InterWorld's,
option will be replacement of the defective Software or a refund of the license
fees paid for the affected Software.
10.2 THE EXPRESS WARRANTY SET FORTH IN SECTION 10.1 CONSTITUTES THE
ONLY WARRANTY WITH RESPECT TO THE SOFTWARE. INTERWORLD MAKES NO OTHER
REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN
FACT OR BY OPERATION OF LAW). INTERWORLD EXPRESSLY DISCLAIMS ALL WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR USE OR A PARTICULAR PURPOSE, AGAINST
INFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE
OF TRADE. INTERWORLD DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE, THAT IT
WILL SUIT THE CLIENT'S APPLICATIONS OR REQUIREMENTS OR OPERATE IN THE
COMBINATIONS WHICH MAY BE SELECTED FOR USE BY THE CLIENT, OR THAT THE OPERATION
OF THE SOFTWARE WILL BE SECURE OR UNINTERRUPTED.
10.3 THE TOTAL LIABILITY OF INTERWORLD AND ITS SUPPLIERS, INCLUDING BUT
NOT LIMITED TO LIABILITY ARISING OUT OF CONTRACT, TORT, BREACH OF WARRANTY, OR
CONDITIONS, CLAIMS BY THIRD PARTIES OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED
THE UNAMORTIZED LICENSE FEES PAID BY CLIENT FOR THE SOFTWARE WHICH GAVE RISE TO
THE CLAIM. INTERWORLD'S SUPPLIERS SHALL NOT BE LIABLE FOR DIRECT DAMAGES
HEREUNDER AND IN NO EVENT SHALL INTERWORLD OR ITS SUPPLIERS BE LIABLE FOR LOSS
OF PROFITS, LOSS OR INACCURACY OF DATA OR ANY INDIRECT, SPECIAL. INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION THE COST OF ANY SUBSTITUTE
PROCUREMENT (EVEN IF SUCH PARTY HAD BEEN ADVISED OF THE POSSIBILITY THEREOF.
11. INFRINGEMENT INDEMNITY
InterWorld, at its own expense, shall (i) defend, or at its option,
settle any claim or suit against Client on the basis of infringement of any
trademark, copyright, trade secret or United States patent ("Intellectual
Property Right") by the Software or use thereof, and (ii) pay all damages and
expenses finally awarded by a court against Client as a result of such claim or
any settlement thereof, provided that: (a) InterWorld has sole control of the
defense and/or settlement, and (b) Client promptly notifies InterWorld of such
claim, and (c) Client cooperates with InterWorld in the defense of such claim or
any related settlement. (Client shall be reimbursed for any reasonable
out-of-pocket expenses). If the Software a alleged to be infringing or is
enjoined, InterWorld shall, at its expense,
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defend such claim and do one of the following: (A) procure for the Client the
right to use the Software; (B) replace the Software or affected part thereof
with other suitable software; or (C) modify the Software or the affected part
thereof to make it non-infringing. If the foregoing is not commercially
reasonable, InterWorld shall terminate this Agreement and refund the unamortized
aggregate payments made by Client for the Software or affected part thereof.
InterWorld shall not have any obligations under this Section 11 to the extent a
claim a based upon (I) use of any altered version of the Software, (II) use,
operation a combination of the Software on or with programs, data, equipment or
documentation not provided by InterWorld, (III) any information, data,
illustrations, graphics, pictures, text or other content placed on the Web site
by Client or any third party, and (IV) any activities of Client or its
representatives after InterWorld has notified Client that such activities may
result in the infringement of the intellectual property rights of any third
party. This Section 10 states the entire liability of InterWorld and the
exclusive remedy of Client with respect to any alleged infringement by the
Software or any part thereof.
12. TERMINATION
12.1 InterWorld may terminate a license if Client has not paid the
license fees therefor within 15 calendar days after written notice that payment
is past due. Either party may terminate this Agreement if the other party fails
to cure a material breach of any term or condition of this Agreement within
sixty (60) days of receipt of written notice by the other party specifying such
breach.
12.2 Upon termination of this Agreement, Client shall cease using the
Software, Documentation and Confidential Information received from InterWorld
and shall certify to InterWorld in writing that all copies (whether or not
modified or merged with other materials) have been destroyed or returned to
InterWorld. Termination shall not limit either pursuing any other remedies
available to it, including injunctive relief, nor shall it relieve Client of its
obligations to pay InterWorld all fees accrued prior to the effective date of
termination. Sections 3.6, 10.1, 10.3, 11 and 12 shall survive termination of
this Agreement.
13. GENERAL
13.1 Assignment. Neither this Agreement nor any license granted
hereunder may be assigned by Client without the prior written consent of
InterWorld. This Agreement shall inure to the benefit of, and be enforceable by
the successors and permitted assigns of the parties.
13.2 Entire Agreement. This Agreement contains the entire understanding
of the parties with respect to subject matter hereof and supersedes all prior
agreements and understandings between the parties. This Agreement may only be
altered or otherwise amended pursuant to an instrument in writing signed by both
parties, except that either party may waive any obligation owed to it by the
other party. The waiver by either party of any provisions of this Agreement
shall not operate or be construed as a waiver of any breach.
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13.3 Notices. All notices, claims certificates, requests, demands and
other consents hereunder shall be in writing and either delivered personally, or
sent by first days express carrier or confirmed facsimile transmission to the
address of the party listed above to the attention of its Chief Financial
Officer or General Counsel. All notices shall be deemed given on the business
day actually received
13.4 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without giving effect to
principles governing conflicts of laws.
13.5 Severability. The provisions of this Agreement are severable and,
in the event a court of competent jurisdiction shall determine one or more of
the provisions contained in this Agreement is invalid, illegal or unenforceable
in any respect, the remaining provisions of this Agreement shall remain in full
force and effect.
13.6 Relationship of the Parties. The parties an independent
contractors and not an employee, agent, partner of, a joint venture with the
other party. Neither party shall have the right to bind the other party to any
agreement with a third party or to incur any obligation or liability on behalf
of the other party.
13.7 Joint Publicity. Within 30 days after the Software licensed under
this Agreement is delivered, Client agrees to cooperate with InterWorld to
create and issue a joint press release stating that Client is using InterWorld
Software. Such press release shall describe the nature of the business
relationship and Client's use of the Software. The press release is subject to
final approval by Client, which approval shall not be unreasonably withheld.
InterWorld may thereafter identify Client as a licensee of the software in its
advertising and marketing materials.
13.8 Amortization. For purposes of this Agreement, amortization shall
be __________ straight line method over a three year period.
13.9 U.S. Government Restricted Rights. Use, duplication or disclosure
by the U.S. Government is subject to restrictions set forth, as applicable, at:
FAR 52.227-1 Alternate III(g)(3)(i), 48 CFR Ch. 1 (10-1-96 Edition); FAR
52.227-19 (JUN 0000 Xx. 1 (10-1-96 Edition); DFARS 252.227-7013(b)(3)(A) (NOV
1995), 48 CFR Ch. 2 Edition); DFARS 252.227-7014(b)(3) (JUN 1995), 00 XXX Xx. 2
(10-1-96 Edition); 252.227-7016(b)(2) (JUN 1995), 48 CFR Ch. 2 (10-1-96
Edition). Manufacturer is Corporation, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000.
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The parties have caused this Agreement to be executed by their
respective authorized representatives.
INTERWORLD CORPORATION CLIENT: DIGITAL COMMERCE
CORPORATION
BY: /s/ Xxxx Xxxxxxxx BY: /s/ Xxxxxxx X. Xxxxxxxx
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its authorized representative its authorized representative
NAME: Xxxx Xxxxxxxx NAME: Xxxxxxx X. Xxxxxxxx
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TITLE: President, COO TITLE: Chief Financial Officer
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ADDENDUM TO INTERWORLD SOFTWARE LICENSE AGREEMENT
This addendum ("Addendum") entered into and made effective on February 4,1998,
supplements and amends the terms and conditions of the InterWorld Corporation
Software License Agreement dated February 4, 1998 ("Agreement") between
InterWorld Corporation ("InterWorld") and Digital Commerce Corporation
("Client") specific to the transaction contained in the Exhibit A attached
hereto and dated February 4, 1998. Capitalized terms not otherwise defined
herein shall have the meaning set forth in the Agreement. In the event of any
conflict or inconsistency between the Agreement and this Addendum, the latter
shall govern.
Client and InterWorld agree as follows:
Section 6. Identification, "initial screen" is hereby amended to "About" page.
Section 8.2 Payments, specific to the attached Exhibit A dated February 4, 1998,
and herein referenced as "Initial Transaction", is hereby amended as follows:
"Payment specific to the Initial Transaction is due and payable on the earlier
of 120 days from the date of execution of this Agreement or upon Client's
completion of its current round of corporate financing, specifically $15
million. In the event of the latter, payment to InterWorld shall be the lesser
of 25% of the total financing round or 100% of the license and maintenance fees
contained on the above referenced Exhibit A. Should the payment to InterWorld
not sufficiently cover the fees contained on the above referenced Exhibit A, the
remaining amount shall be paid in three equal monthly payments with the first
payable on the first day of the new quarter and the next two payments due on the
1st day of the two following months."
Section 9. InterWorld's current Support Policies and Procedures are attached
hereto.
Section 13.7 is hereby amended to include the following, "In addition, both
parties agree to develop and implement joint marketing plans for the promotion
of Client's business as such pertains to the use of the Software. Both parties
shall use best efforts to develop such plans within 60 days of execution of this
Agreement."
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Except as amended above, the Agreement shall remain in full force and effect.
InterWorld Corporation Digital Commerce Corp.
/s/ Xxxx Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxxx
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By: (authorized signature) By: (authorized signature)
Xxxx Xxxxxxxx, President & COO Xxxxxxx X. Xxxxxxxx, CFO
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Name and Title Name and Title
2/4/98 2/4/98
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Date Date
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