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EXHIBIT 10.7
LICENSE AND
OPTION AGREEMENT
This License and Option Agreement (the "Agreement"), which shall be effective as
of March 22, 2000, is by and between Insight Enterprises, Inc., a Delaware
corporation ("Insight"), and Information Management Systems, Inc., a California
corporation ("IMS").
In consideration of the mutual promises contained herein, Insight and IMS agree
as follow:
A. DEFINITIONS
1. "Affiliate" shall mean any person or entity controlling, controlled
by or under common control with Insight, any entity in which Insight or any such
person or entity has a significant investment and any person or entity whose
relationship with Insight or with an Affiliate of Insight is such that it
requires access to the Computer Systems of Insight and/or of an Affiliate of
Insight, as determined in Insight's sole discretion. Upon any assignment or
transfer of one or more licenses, this definition shall be modified
automatically so that, for purposes of this definition, "Insight" is deemed also
to include each assignee or transferee.
2. "Computer System" shall be interpreted in its broadest and most
comprehensive sense, and shall include but not be limited to host computer
systems, networked computer systems, stand-alone systems, terminal emulation
products and/or other future variations of similar operating, information
processing or data entry systems.
3. "Software" includes IMS/Basic, Forte and Infoterm software, and
various other related variations of such software, all as it may have been, or
may be, authored, changed, modified and/or enhanced by Insight or any of its
Affiliates.
B. ACKNOWLEDGMENT OF CURRENT LICENSE
The parties acknowledge that Insight and its Affiliates currently hold
a perpetual license identical in scope to the new license granted in Section C2,
for an unlimited number of users, to use the Software in the Computer Systems
and operations of Insight and its Affiliates. The parties further acknowledge
that part of the business of Insight and its Affiliates includes performing and
processing marketing, sales and fulfillment of orders for unrelated third
parties which manufacture, market and sell all types of products and services.
C. LICENSE
1. License and Option Fee. Upon the execution of this Agreement,
Insight shall pay to IMS a one-time fee of $150,000, which shall constitute the
total purchase price of the license described in Section C2 and the Option
described in Section D1.
IMS License Option Agreement
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2. Grant of License. In exchange for the fee described in Section C1,
IMS hereby grants to Insight an additional perpetual, nonexclusive license,
which authorizes an unlimited number of users to reproduce, duplicate and use
the Software in the Computer Systems and operations of a single corporate
family, including Affiliates, provided that such license may be transferred,
with or without consideration, either perpetually or temporarily with right of
reversion to the transferor, to an entity that is not an Affiliate of Insight.
Such license shall include the unrestricted, nonexclusive, company- and
Affiliate-wide perpetual license for the owner of the license to copy, author,
rewrite, change, alter, substitute, modify, enhance and use the source and
executable code in or relating to the Software, and all related documentation,
for or in any number or types of Computer Systems utilizing the Software to the
extent deemed necessary or appropriate by the owner of the license, in its sole
and absolute discretion, for the operations of such owner and/or any of its
Affiliates, which operations may include the providing of various types of
services to unrelated third parties. Any modifications, developments or
enhancements of the source code, executable code or documentation by any owner
of a license or its Affiliates shall remain as the property and within the sole
control of such owner of the license, and IMS shall have no rights or claims to
them whatsoever.
D. OPTION
1. Grant of Option. In exchange for the fee described in Section Cl,
IMS hereby grants to Insight a 20-year option to purchase an unlimited number of
perpetual, nonexclusive licenses, each of which will authorize an unlimited
number of users to reproduce, duplicate and use the software in the Computer
Systems and operations of a single corporate family, including Affiliates,
provided that, once purchased, any such license may be transferred, with or
without consideration, either perpetually or temporarily with right of reversion
to the transferor, to an entity that is not an Affiliate of Insight. Each such
license shall include the unrestricted, nonexclusive, Company- and
Affiliate-wide perpetual license for the owner of the license to copy, author,
rewrite, change, alter, substitute, modify, enhance and use the source and
executable code in or relating to the Software, and all related documentation,
for or in any number or types of Computer Systems utilizing the Software to the
extent deemed necessary or appropriate by the owner of the license, in its sole
and absolute discretion, for the operations of such owner and/or any of its
Affiliates, which operations may include the providing of various types of
services to unrelated third parties. Any modifications, developments or
enhancements of the source code, executable code or documentation by any owner
of a license or its Affiliates shall remain as the property and within the sole
control of such owner of the license, and IMS shall have no rights or claims to
them whatsoever.
2. Exercise of Option. In order to exercise the option described in
Section DI, Insight shall give notice, at anytime or from time to time, on or
before March 31, 2020, to IMS of each such exercise, and pay $150,000 to IMS for
each license purchased.
IMS License Option Agreement
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E. MISCELLANEOUS
1. Warranty. IMS warrants that it owns all rights necessary for the
licensing of the Software as provided in this Agreement. IMS shall indemnify and
hold Insight, and all assignees and transferees of existing licenses, the new
license granted by Section C2, and all licenses acquired upon exercises of the
option described in Section D1, and the successors and assigns of each, harmless
from and against any claim of infringement of any patent, copyright or other
intellectual property right based upon the Software, provided IMS receives
reasonable notice of and the opportunity to defend any such claim. IMS shall
defend and settle at its sole expense all suits or proceedings arising out of
the foregoing. No settlement which prevents Insight, and all assignees and
transferees of the existing license, the new license granted by Section C2, and
all licenses acquired upon exercises of the option described in Section D1, and
the successors and assigns of each, from continuing to use the Software as
provided under this Agreement shall be made without its or their prior written
consent. In all events, Insight, and all assignees and transferees of the
existing license, the new license granted by Section C2, and all licenses
acquired upon exercises of the option described in Section D1, and the
successors and assigns of each, shall have the right to participate at its or
their own expense in the defense of any such suit or proceeding through counsel
of its or their own choosing.
2. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes any previous written or oral agreements
between the parties with respect to the subject matter hereof. Any modification
or amendment of this Agreement shall be in writing and executed by both parties.
3. Severability. IMS agrees that if any terms under this Agreement are
held unenforceable for any reason or to any extent, such terms shall be reduced
or otherwise modified by the Court or arbitrator to the minimum extent necessary
to make them valid and enforceable. If any such term or provision cannot be so
modified, it shall be severed and the remaining terms and provisions of this
Agreement shall be interpreted in such a way as to give maximum validity and
enforceability to this Agreement. The remaining terms and provisions hereof
shall continue in full force and effect.
4. Consequential Damages. Other than for breach of warranty of title by
IMS, neither party will be liable to the other party (nor to any person claiming
rights derived from the other party's rights) for incidental, consequential,
special, punitive or exemplary damages of any kind.
5. Governing Law. This Agreement shall be governed by and construed
according to the laws of the State of Arizona, irrespective of its choice of law
principles. The parties consent to the exclusive jurisdiction of the courts
located in Maricopa County, Arizona and waive all objections to this forum.
6. Prevailing Party. The prevailing party in any dispute regarding this
Agreement shall be entitled to receive, in addition to any other remedy or
award, reasonable attorneys' fees and costs determined, in the case of
litigation, by the court and not a jury.
IMS License Option Agreement
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7. Headings. The headings of the Sections of this Agreement are for
convenience only and are not to be considered a part of the Agreement or used in
determining its meaning.
8. Successors and Assigns. Except as otherwise provided herein, this
Agreement shall be binding upon, and shall inure to the benefit of, the parties,
their successors and assigns, and trustees in bankruptcy, whether by operation
of law or due to change in ownership or otherwise.
9. Valid Authority. IMS represents and warrants that it is a
corporation, duly organized, validly existing and in good standing under the
laws of its state of domicile, and that it has valid authority under its charter
documents and is fully authorized and permitted by its board of directors to
enter into this Agreement, to execute any and all documentation required herein
and to perform the terms of this Agreement. This Agreement is a valid and
binding legal obligation of IMS and is enforceable in accordance with its terms.
IMS will not enter into any agreement if the execution and/or performance of it
would violate or interfere with this Agreement or any right granted hereunder,
or have a material adverse effect on Insight.
10. Independent Entities. IMS and Insight each have separate and
independent rights and obligations under this Agreement. Nothing contained
herein shall be construed as creating, forming or constituting any agency,
partnership, joint venture, merger or consolidation of IMS and Insight for any
purpose or in any respect.
11. Survival of Representations and Warranties. The representations and
warranties made herein shall survive the execution of this Agreement unless
expressly indicated otherwise.
12. Counterparts. This Agreement may be executed in any number of
counterpart copies, each of which shall be deemed an original but which together
shall constitute a single instrument. In providing proof of this Agreement, it
shall not be necessary to produce or account for more than one such counterpart.
Each of the parties hereto has caused this Agreement to be executed by its duly
authorized officer as of the date first written above.
INSIGHT ENTERPRISES, INC., INFORMATION MANAGEMENT SYSTEMS, INC.,
a Delaware corporation a California corporation
By: By:
Title: Title:
IMS License Option Agreement
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