Exhibit 10.2 Intertrade License Agreement
LICENSE AGREEMENT
THIS LICENSE AGREEMENT ("Agreement") is entered into this __26th__ day of
_October____, 2003, ("Effective Date") by and between Intertrade Capital Group
("Licensor"), and Bentley Companies ("Licensee").
AGREEMENT
1. DEFINITIONS. Unless otherwise defined herein, the following terms shall have
the meanings set forth below:
1.1. "Customization" - means any modification of or changes to the Software
performed by or on behalf of Licensor pursuant to a services agreement.
1.2. "Customized Software" - means the Software modified by Licensor for
Licensee pursuant to a services agreement executed by Licensor and Licensee.
1.3. "Defect" - means a material failure of the Software to substantially
conform to the functional specifications set forth in the current published
Documentation.
1.4. "Derivative Works" - means works of authorship based on one or more
pre-existing works of Licensor which are created by Licensor or on behalf of
Licensor, including Documentation, Software, Enhancements, Updates thereto, in
whatever form the work may be recast, transformed or adapted, including
translations, ports and screen reformatting.
1.5. "Designated Location" - means the CPU at the physical location identified
in Exhibit A on which Licensee may use the Software and a single web site
domain address (such as xxx.xxxxx.xx).
1.6. "Designated Operating Environment" - means the computer hardware and
software identified in Exhibit A, with which Licensee may use the Software.
1.7. "Development Work" - means original computer software developed by or on
behalf of Licensor for Licensee pursuant to a services agreement executed by
Licensor and Licensee.
1.8. "Documentation" - means the written, electronic, or recorded work
provided to Licensee in connection with the Software that describes the
functions and features, of the Software, including end user manuals.
1.9. "Enhancements" - means any software program, any part thereof, or any
improvement or addition thereto, or any materials not included in the Software
at the time of execution of this License, or that are subsequently developed
by Licensor, or on behalf of Licensor, which modify the Software to provide a
function or feature not originally offered or an improvement in function and
which relate to the Software and which are not major modifications and
separately priced by Licensor.
1
1.10. "Executable Code" - means the compiled or interpreted machine readable
program code executed by a computer to perform the functions of the Software.
1.11. "License Fee" - means fees charged for the License.
1.12. "Licensed Materials" - means the Software, Customized Software and
Development Work, if any, and Documentation covered by this Agreement or
services agreement between the parties hereto.
1.13. "Permitted Users" - means those employees, brokers, agents, clients,
and/or members of Licensee who have been trained properly in the use of and
are able to use properly the Licensed Materials.
1.14. "Software" - means the computer software program(s) covered by this
Agreement and described on Exhibit A attached hereto and made a part hereof
and all Updates and Enhancements thereto.
1.15. "Third Party Product" - means those third party software and hardware
products provided to Licensee by Licensor if any, all as further described in
Exhibit A attached hereto, subject to the terms and conditions set forth
herein.
1.16. "Updates" - means program logic changes made by Licensor to correct
Defects in the Software delivered hereunder.
2. LICENSE GRANT.
2.1. LICENSE TO SOFTWARE. Except as otherwise provided herein, Licensor hereby
grants to Licensee a perpetual, non-exclusive, non-transferable license to use
the Software and Documentation as set forth herein. Except as otherwise
expressly set forth in a services agreement, upon the completion, delivery and
acceptance of any Development Work or Customization pursuant to a services
agreement, such Customization or Development Work shall be considered part of
and incorporated into the Software and shall be subject to the terms and
conditions of this Agreement.
2.2. LICENSE TO THIRD PARTY PRODUCT. Licensor hereby grants to Licensee a
license to use the Third Party Product if any only as subject to the terms and
conditions of this Agreement and the terms and conditions applicable to a
particular product as set forth on Exhibit A. In the event of a conflict between
the terms and conditions of this Agreement and Exhibit A, the terms and
conditions of Exhibit A shall control.
2.3. USE. Licensee shall have the right to use and access the Software from a
single CPU at the Designated Location host provided by Licensor. The right to
use the Software shall include use by Licensee's affiliates or subsidiaries.
Licensee shall have the right to use the Software and Documentation only as set
forth in this Agreement or in the Documentation. Any other use of the Software
shall constitute an Event of Default under this Agreement. Unless otherwise
agreed by the parties hereto in writing, Licensee shall not use the Software in
the operation of a service bureau or time sharing arrangement or provide same to
a disaster recovery provider; nor shall Licensee modify, assign, sublicense,
sell or rent the Software unless agreed upon by the parties. Any rights not
expressly granted herein are hereby expressly reserved to Licensor. Licensee
understands and agrees that, in order to facilitate quality control, whenever an
error message is generated in connection with Licensee's use of the Software, a
copy of the error message is emailed to Licensor.
2.4. ACCESS. Access to the Software shall be granted only to Permitted Users.
2
2.5. SINGLE POINT OF CONTACT. Licensee shall designate a single point of contact
to communicate with Licensor in all matters relating to this Agreement,
including notifications of changes to Permitted Users at the Designated Location
or the Designated Operating Environment.. The identity of the contact may be
changed upon five (5) days written notice to Licensor.
2.6. CHANGES. No changes with regard to the Designated Locations, Permitted
Users, or the Designated Operating Environment shall be made without the written
consent of Licensor.
2.7. COPIES. Licensor shall provide one (1) copy of the Software, in online
accessible form, and one (1) copy of the accompanying Documentation to Licensee
in electronic format. Licensee shall make no copies of the Software. Any copy of
the Documentation shall be clearly marked as proprietary to Licensee and contain
Licensor's proprietary notices. Additional copies of Documentation will be made
available to Licensee by Licensor at an additional charge.
2.8. TRANSFER. Licensee may request to transfer the Software and Documentation
to a different Designated Location if hosting becomes unacceptable to industry
standards, upon written acceptance by Licensor. Such transfer shall obligate
License to pay a transfer fee of Three Thousand Dollars ($3000.00) to Licensor.
Upon transfer, the new physical location shall become Designated Location for
the purposes of this Agreement. Notwithstanding the foregoing, Licensee
understands and agrees that Licensor's approval may be contingent upon agreement
of the parties to different or additional terms and that Licensor may, at its
sole discretion, terminate or modify any services or maintenance and support
agreements executed in connection herewith. Notwithstanding the foregoing,
Licensee understands and agrees that Third Party Products or licenses if any may
not be transferred without the consent of the applicable third party vendors.
2.9. LOGO. Licensee shall maintain on its Home Page the "Powered by Virtual
Barter" logo as provided by Licensor.
3. INSTALLATION; MAINTENANCE AND SUPPORT.
3.1. DELIVERY. Licensor shall deliver the Software and Documentation to Licensee
at the Designated Location; provided, however, that all modification of the
Software and any Updates and Enhancements shall be conducted pursuant to a
service agreement and shall be priced separately.
3.2. ENHANCEMENTS AND UPDATES. Licensor shall provide Enhancements and Updates
to Licensee at no charge so long as a maintenance and support agreement between
the parties is in effect and Licensee has paid the fees due thereunder. Upon
delivery to Licensee, such Enhancements and Updates shall be subject to the
terms and conditions of this Agreement and shall be deemed incorporated into and
made part of the Software.
4.OWNERSHIP. Except as otherwise expressly agreed in writing, as between
Licensor and Licensee, Licensor shall have exclusive ownership of all Licensed
Materials and all Derivative Works and written, electronic, or recorded
products, data, reports, or other materials resulting from performance of
additional services that affect the Licensed Materials or Derivative Works and
all other intellectual property rights, including copyrights, trademarks,
service marks, and trade secrets attributable to the foregoing (collectively
"Intellectual Property"); provided however, that the Intellectual Property shall
not include proprietary data of Licensee. Licensee shall have no ownership or
proprietary right in the Intellectual Property and shall not use the
Intellectual Property for any purpose not approved in writing by Licensor.
5. PAYMENTS.
3
5.1. LICENSE FEES. In consideration of the license granted under this Agreement,
Licensee shall pay a License Fee as described on Exhibit A. Unless otherwise
provided in Exhibit A. License Fees charged hereunder shall be due and payable
within fifteen (15) days of the date of Licensor's invoice to Licensee. Amounts
remaining unpaid thereafter shall be subject to a late charge of one and one
half percent (1.5%) per month or the maximum rate allowed by law, whichever is
less.
5.2. TAXES. Licensee agrees to pay all present or future sales, excise, import,
use, value-added or other similar taxes or duties (not including taxes or duties
on the income of Licensor) levied or based on payments made pursuant to this
Agreement.
6. TERMINATION.
6.1. TERMINATION FOR DEFAULT. By giving written notice, either party may
terminate this Agreement upon the occurrence of one or more of the following
events, which shall constitute a non-exclusive Event of Default under this
Agreement:
6.1.1. Either party fails to perform any material covenant, agreement,
obligation, term or condition contained herein;
6.1.2. Either party fails to comply with the provisions of the confidentiality
agreement executed by and between the parties hereto;
6.1.3. Either party attempts to assign, terminate or cancel this Agreement
contrary to the terms thereof;
6.1.4. Licensee fails to make payment as provided herein;
6.1.5. Either party ceases to do business as a going concern, makes an
assignment for the benefit of creditors, admits in writing its inability to pay
debts as they become due, files a petition in bankruptcy (except in connection
with a reorganization under which the business of such party is continued and
performance of all its obligations under this Agreement shall continue) or
appoints a receiver, acquiesces in the appointment of a receiver or trustee, or
liquidator for it or any substantial party of its assets or properties.
6.2. EVENTS OF DEFAULT by either party shall not be cause for termination if the
defaulting party cures such default (if the default is susceptible to cure)
within thirty (30) days of receipt of written notice of default from the other
party.
6.3. RIGHTS UPON TERMINATION. Upon an uncured Event of Default, the
non-breaching party may, except as limited by this Agreement, seek all legal and
equitable remedies to which it is entitled. The remedies set forth herein shall
be deemed cumulative and not exclusive and may be exercised by the non-breaching
party, successively or concurrently, in addition to any other remedies available
to it. Upon termination by Licensor for Licensee's default, all amounts under
this Agreement shall become immediately due and payable.
6.4. DUTIES UPON TERMINATION. Upon termination of this Agreement, each party
shall return to the other any confidential information in its possession
belonging to such other party.
7.RELATIONSHIP OF THE PARTIES. The relationship of the parties established by
this Agreement is solely that of independent contractors, and nothing contained
in this Agreement shall be construed to (a) give any party the power to direct
4
and control the day-to-day activities of the other; or (b) constitute such
parties as partners, joint ventures, co-owners or otherwise as participants in a
joint or common undertaking; or (c) make either party an agent of the other for
any purpose whatsoever. Neither party nor its agents or employees is the
representative of the other for any purpose, and neither has power or authority
to act as agent, employee to represent, to act for, bind, or otherwise create or
assume any obligation on behalf of the other.
8. WARRANTY.
8.1. LIMITED WARRANTY. Licensor warrants that for a period of six (6) months
from delivery the Software shall operate without Defects. THIS LIMITED EXPRESS
WARRANTY SPECIFIED ABOVE IS THE ONLY WARRANTY MADE BY LICENSOR AND THERE ARE NO
OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE,
INCLUDING WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.2. NEGATION OF WARRANTY. The above warranty shall be negated by (a) the use of
the Software by any user not a permitted user, (b) Licensee's use of the
Software in a manner not permitted by this Agreement, (c) Licensee's
unauthorized use of the Software in conjunction with third party software not
expressly approved by Licensor, or (e) installation or use of the Software in an
environment other than the Designated Operating Environment.
8.3. REMEDIES. Remedies for the breach of warranty obligations hereunder shall
be limited to replacement or repair of such non-conforming Software. THE
FOREGOING SHALL BE LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR ANY MALFUNCTION OR
DEFECT IN THE SOFTWARE. IF SUCH MALFUNCTIONS OR DEFECT MATERIALLY IMPAIRS
LICENSEE'S USE OF THE SOFTWARE AND CANNOT BE CURED AS PROVIDED IN THIS SECTION,
THEN LICENSEE'S ALTERNATIVE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE THIS
AGREEMENT WITHOUT FURTHER LIABILITY TO LICENSOR OR DAMAGES HEREUNDER. THIS
WARRANTY IS NON-TRANSFERABLE.
8.4. LIMITATION OF LIABILITY. Subject to Section 8.2, Licensor's liability on
any claim of damages arising out of this Agreement shall be limited to direct
damages and shall not exceed the amounts paid by Licensee to Licensor under this
Agreement. In no event shall Licensor be liable for indirect, exemplary,
incidental, special or consequential damages arising from this Agreement, even
if Licensor has been advised of the possibility or likelihood of such damages.
The limitations of liability set forth herein do not apply to any legal or
equitable obligation that Licensor has or may have to indemnify Licensee for any
reason.
9. INDEMNIFICATION.
9.1. BY LICENSOR. Licensor shall indemnify, defend and hold harmless Licensee
against any loss, damage or expense incurred by Licensee as a result of claims,
actions, or proceedings brought by any third party alleging infringement by the
Software and Documentation, Updates, and Enhancements relating thereto of
copyright, trademark, patent, or other proprietary rights, and against its
reasonable attorneys' fees and any money damages or costs awarded in respect of
any such claim(s) and any suit raising any such claim(s); provided, however,
that (a) Licensee shall have given Licensor prompt written notice of any such
claim, demand, suit or action; (b) Licensee shall cooperate with said defense by
complying with Licensor's reasonable instructions and requests to Licensee in
connection with said defense; and (c) Licensor shall have control of the defense
of such claim, suit, demand, or action and the settlement or compromise thereof.
Further, Licensor shall have no liability for any infringement action or claim
that is based upon or arising from the matters described in Section 9.2. If a
temporary or permanent injunction is obtained against Licensee's use of the
Software as a result of the matters described in this section, Licensor shall,
at its option and expense, either procure for Licensee the right to continue
using the Software or replace or modify the Software or infringing portion
5
thereof so that it no longer infringes the alleged proprietary right. This
Section 9.1 sets forth the exclusive remedy of Licensee against Licensor with
respect to any action or claim described herein. Licensor shall not indemnify
Licensee for uses, damages or expenses incurred by Licensee as a result of
claims, actions or proceedings brought by any third party based on code or
design specifications provided to Licensor by Licensee.
9.2. BY LICENSEE. Licensee shall indemnify, defend and hold harmless Licensor
against any loss, damage or expense incurred by Licensor as a result of claims,
actions, or proceedings brought by any third party arising from (a) Licensee's
use of the Software other than the Designated Operating Environment or in a
manner not permitted by this Agreement, (b) Licensee's unauthorized use of the
Software in conjunction with third party software not expressly approved by
Licensor, (c) Licensee's installation or use of the Software in an environment
other than the Designated operating Environment; (d) acts of negligence or
willful misconduct by any employees of Licensee relating to this Agreement; or
(e) code or design specifications provided by Licensee to Licensor in connection
with Licensor's performance of Development Work, Customization or modification
of Software. Licensee will indemnify Licensor against its reasonable attorneys'
fees and any money damages or costs awarded in respect of any such claim(s) and
any suit raising any such claim(s).
10. GOVERNING LAW. As an incentive to alternative dispute resolution the parties
have agreed concerning disputes arising hereunder: (1) Licensor may only
commence legal proceedings against Licensee in a state or federal court sitting
in (INSERT LICENSEE'S COUNTY HERE)_County California, in which event, this
License agreement will be construed under the internal laws of the State of
California AND (2) Licensee may only commence legal proceedings against Licensor
in state or federal court sitting in New York, in which event, this License
Agreement will be construed under the internal laws of the State of New York;
provided that once litigation is initiated by one of the parties, the parties,
the other may assert counterclaims in those proceedings.
11. MISCELLANEOUS.
11.1. BINDING NATURE AND ASSIGNMENT. This Agreement shall bind the parties and
their successors and permitted assigns. Neither party may assign this Agreement
without the prior written consent of the other except that with respect to
Licensor the term "assignment" shall not include any transfer by merger,
acquisition, stock transfer or other consolidation of Licensor with another
entity. Any other assignment attempted without the written consent of the other
party shall be void.
11.2. NOTICES. Any notice, consent or other communication in connection with the
Agreement shall be in writing and may be delivered in person, by mail or by
facsimile copy. If hand delivered, the notice shall be effective upon delivery.
If by facsimile copy, the notice shall be effective when sent. If served by
mail, the notice shall be effective three (3) business days after being
deposited with the United States Postal Service by certified mail, return
receipt requested, addressed appropriately to the intended recipient, as
follows:
If to Licensor: ATTN: Intertrade Capital Group 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
If to Licensee: ATTN: Bentley Companies
-----------------
Each party may change its address for notification purposes by giving the other
party written notice of the new address and the date upon which it shall become
effective.
6
11.3. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one single agreement
between the parties.
11.4. HEADINGS. The articles and sections headings and the table of contents are
for reference and convenience only and shall not be considered in the
interpretation of this Agreement.
11.5. APPROVALS AND SIMILAR ACTIONS. Where agreement, approval, acceptance,
consent or similar action by either party is required by any provision of this
Agreement, such action shall not be unreasonably delayed or withheld, unless
specifically permitted by this Agreement.
11.6. PUBLICITY. Licensor may prepare press releases concerning the existence of
this Agreement and may reference Licensee and this Agreement in its advertising,
sales promotions, trade shows, or other marketing material.
11.7. FORCE MAJEURE. Neither party shall be liable to the other by reason of any
failure of performance hereunder (except failure to pay) if such failure arises
out of causes beyond such party's reasonable control, despite the reasonable
efforts and without the fault or negligence of such party. Any party
experiencing such an event shall give as prompt notice as possible under the
circumstances.
11.8. SEVERABILITY. If any provision of this Agreement is held to be
unenforceable, then both parties shall be relieved of all obligations arising
under such provision, but only to the extent that such provision is
unenforceable, and this Agreement shall be deemed amended by modifying such
provision to the extent necessary to make it enforceable while preserving its
intent or, if that is not possible, by substituting another provision that is
enforceable and achieves the same objective and economic result. IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT EACH PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A
LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, INDEMNIFICATION OR EXCLUSION
OF DAMAGES OR OTHER REMEDIES IS INTENDED TO BE ENFORCED AS SUCH. FURTHER, IT IS
EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY UNDER THIS
AGREEMENT IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS
OF LIABILITY AND EXCLUSIONS OF DAMAGES OR OTHER REMEDIES SHALL REMAIN IN EFFECT.
11.9. WAIVER. No delay or omission by either party to exercise any right or
power it has under this Agreement shall impair or be construed as a waiver of
such right or power. A waiver by either party of any covenant or breach shall
not be construed to be a waiver of any succeeding breach or of any other
covenant. All waivers must be in writing and signed by the party waiving its
rights.
11.10. ATTORNEYS' FEES. If any legal action or other proceeding is brought for
the enforcement of this Agreement, or because of an alleged dispute, breach,
default or misrepresentation in connection with any of the provisions of this
Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and other costs incurred in that action or proceeding, in
addition to any other relief to which it may be entitled.
11.11. NO THIRD PARTY BENEFICIARIES. The parties agree that this Agreement is
for the benefit of the parties hereto and is not intended to confer any legal
rights or benefits on any third party and that there are no third party
beneficiaries to this Agreement or any part or specific provision of this
Agreement.
11.12. COMPLIANCE WITH LAWS. Each party shall comply with all governmental,
including international, federal, state, and local laws, statutes, rules and
regulations applicable to this Agreement and in the conduct of its business.
7
Failure to comply with this provision shall constitute a material default under
this Agreement entitling the non-breaching party to terminate this Agreement.
11.13. ENTIRE AGREEMENT. This Agreement, including all of its attachments, each
of which is incorporated into this Agreement, is the entire agreement between
the parties with respect to its subject matter, and there are no other
representations, understandings or agreements between the parties relative to
such subject matter. No amendment to, or change, waiver or discharge of any
provision of this Agreement shall be valid unless in writing and signed by any
authorized representative of the party against which such amendment, change,
waiver or discharge is sought to be enforced.
11.14. SURVIVAL OF PROVISIONS. Provisions 4, 6.2, 6.3, 8.3, 8.4, 9, 10, 11.6,
and 11.10 and all accrued and unpaid obligations arising hereunder shall survive
the termination hereof.
ACKNOWLEDGED AND AGREED TO, as of the day and year first written above.
LICENSEE
By: /s/ Xxxxxx Xxx
-------------------------------------------------
Printed Name: Xxxxxx xxx
-----------------------------------------
Title: CEO
------------------------------------------------
Date:
------------------------------------------------
LICENSOR
By: /s/ Xxxxx Xxxx
-------------------------------------------------
Printed Name: Xxxxx Xxxx
----------------------------------------
Title:
------------------------------------------------
Date:
------------------------------------------------
8
