Exhibit 10(a)
SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT
SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT
This Agreement (the "Agreement"), dated December.' 1, 1997, is made and
entered into by and between BSD Development Partners, Ltd. (hereinafter "BSD"),
0 Xxxxxxx Xxxx Xxxx, Xxxxxxx Xxxx, Xxx Xxxx 00000, a partnership duly organized
and existing under the laws of the State of Delaware and RDX Acquisition Corp.
d/b/a RMTi, 4302 - 00 Xxxx Xxxxx Xxxx, Xxxxxx, Xxx Xxxxxxxxx 00000 (hereinafter
"RMTi"), a corporation duly organized under the laws of the State of Delaware.
PURPOSE
This Agreement sets forth the terms and conditions under which RMTi
grants to BSD, its successors and assigns, certain rights and licenses in and to
certain software products listed in Exhibit A (the "RMTi Products"). Included
among such terms and conditions are specific assurances intended for the benefit
of BSD's customers.
WHEREAS, RMTi owns the right to market, distribute and sell the RMTi
Products; and
WHEREAS, BSD wishes to obtain a license to market, distribute and
sub-license the RMTi Products; and
WHEREAS, RMTi wishes to grant to BSD a license to market, distribute
and sub-license the RMTi Products;
NOW THEREFORE, in consideration of the mutual promises and agreement
set forth herein, the parties agree as follows:
Section 1
DEFINITIONS
When used in this Agreement, the capitalized terms listed below shall
have the following meanings:
1.1. Code shall mean computer programming code in both Object Code
and Source Code.
1.1.1. Object Code shall mean the machine-readable
form of the Code.
1.1.2. Source Code shall mean the human-readable form
of the Code and related system documentation.
including all comments and any procedural code
such as job control language.
1.2 Confidential Information shall mean any information, in
whatever form, received by BSD from RMTi that is proprietary
or confidential to BSD or RMTi, as the case may be, or which
might permit BSD or RMTi, as the case may be, or any third
party to obtain a competitive advantage over those who do not
have access to the information, provided, however that
Confidential Information shall not include information which
(a) is or becomes a part of the public domain through no act
or omission of the party receiving such information, (b) was
in lawful possession of the parry receiving such information
prior to the disclosure by the other party and had not been
obtained by the parry receiving such information either
directly or indirectly from the other party or unlawfully from
any third party, (c) is lawfully disclosed to the party
receiving such information by a third party without
restriction on disclosure, or (d) is independently developed
by the parry receiving such information.
1.3 Derivative Work shall mean a work which is based on one or
more preexisting works, such as a revision, enhancement,
modification, translation, abridgment, condensation,
expansion, or any other form in which such preexisting works
may be recast, transformed or adapted, and which, if prepared
without authorization of the owner of the copyright in such
preexisting work, would constitute a copyright infringement.
For purposes hereof, a Derivative Work shall also include any
compilation that incorporates such a preexisting work.
1.4. Documentation shall mean user manuals and other written
materials that relate to the installation and operation of the
RMTi products.
1.5. End User shall mean any person or entity to whom BSD grants a
sublicense in accordance with the terms hereof to use the RMTi
Products.
1.6. End User Agreement shall mean the license or sub-license
agreement between BSD and an End User governing the use of the
RMTi Products.
1.7. Insolvency Event shall mean, with respect to any person or
entity, any act, event, or circumstance whereby:
1.7.1. An involuntary proceeding shall be commenced
or an involuntary petition shall be filed in a
court of competent jurisdiction seeking.
1.7.1.1. Relief in respect of such person or entity, or
of a substantial part of the property or
assets of such person or entity under Title 11
of the United States Code, as now constituted
or hereafter amended, or any other federal or
state bankruptcy, insolvency, receivership, or
similar law,
1.7.1.2. The appointment of a receiver, trustee,
custodian, sequestrator, conservator, or
similar official for such person or entity or
any substantial part of the property or assets
of such person or entity, or
1.7.1.3. The winding-up or liquidation of such person
or entity, and such proceeding or petition
shall continue undismissed for sixty (60) days
or an order or decree approving or ordering
any of the foregoing shall be entered; or
1.7.2. Such person or entity shall:
1.7.2.1. Voluntarily commence any proceeding or file
any petition seeking relief under Title 11 of
the United States Code, as now constituted or
hereafter amended, or any other federal or
state bankruptcy, insolvency, receivership, or
similar law,
1.7.2.2. Consent to the institution of, or fail to
contest in a timely and appropriate manner,
any proceeding or the filing of any petition
described in Part 1 above,
1.7.2.3. Apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator,
conservator, or similar official for such
person or entity or for a substantial part of
the property or assets of such person or
entity,
1.7.2.4. File an answer admitting the material
allegations of a petition filed against it in
any such proceeding,
1.7.2.5. Make a general assignment for the benefit of
creditors,
1.7.2.6. Become unable, admit in writing its inability,
or fail generally to pay its debts as they
become due, or
1.7.2.7. Take any action for the purpose of the
foregoing.
1.8. Intellectual Property shall mean the intangible legal rights
or interests evidenced by or embodied in (1) any idea, design,
concept, technique, invention, discovery, or improvement,
whether or not patentable, but including patents, patent
applications, trade secrets, and know-how, (2) any work of
authorship, whether or not copyrightable, but including
copyrights and any moral rights recognized by law, and (3) any
other similar rights, in each case on a worldwide basis.
1.9. Licensed Trademarks shall mean the trademarks and service
marks of RMTi that are provided to BSD for use in conjunction
with this Agreement.
1.10. Marketing Materials shall mean the advertising and marketing
materials made available to BSD by RMTi.
1.11. New Customers shall mean persons or entities that, as of the
date of this Agreement, are not licensees of RMTi.
1.12. Proper Exceptions shall mean Code and Documentation that is
the subject of a grant of rights to RMTi sufficient to
authorize BSD to exercise its rights and licenses in the RMTi
Products without further restriction or obligation and without
regard to the possibility of any voluntary or involuntary
termination of the agreement under which RMTi received such
grant of rights.
1.13. RMTi Products shall mean (1) the Object Code and Documentation
described in Exhibit B, and (2) all Updates that BSD is
entitled to receive from time to time pursuant to Section 5.2
hereof.
1.14. Sub Distributor shall mean an individual or entity who obtains
a sublicense from BSD to market, distribute, and sub-license
the RMTi Products to New Customers.
1.15. Subsidiary shall mean a corporation, company, or other entity
more than fifty percent (50%) of whose outstanding shares or
securities (representing the right to vote for the election of
directors or other managing authority) are, or which does not
have outstanding shares or securities, as may be the case in
a partnership, joint venture, or unincorporated association,
but more than fifty percent (50%) of the ownership interest
representing the right to make the decisions for such
corporation, company, or other entity is, now or hereafter,
owned or controlled, directly or indirectly, by a party
hereto, but such corporation, company, or other entity shall
be deemed to be a Subsidiary only so long as such ownership or
control exists.
1.16. Third-Party Work shall mean any Code or Documentation in which
any person or entity other than RMTi or BSD owns any pertinent
intellectual property rights and which either is incorporated
in the RMTi Products or represents a preexisting work of which
the RMTi Products is a Derivative Work.
1.17. Updates shall mean all changes or additions, including all
modifications, revisions, or enhancements, to Code or
Documentation that correct errors, problems, or defects, or
that provide corrections, or that improve functions, add new
functions, or improve performance by changes in or additions
to system design or coding.
Section 2
GRANT OF RIGHT AND LICENSES
2.1 Scope. Subject to all of the terms and conditions of this
Agreement, RMTi hereby appoints BSD, its successors and
assigns, as a non-exclusive world wide distributor to license
and sub-license the RMTi Products in Object Code form only and
BSD hereby accepts such appointment and agrees to act in such
capacity.
2.2. No Restriction. Nothing in this Agreement shall be deemed to
limit or prevent RMTi, directly or indirectly, from marketing,
distributing, licensing or selling the RMTi Products anywhere
throughout the world.
2.3. Right to Grant Licenses and Sub-licenses. BSD may appoint Sub
Distributors for the sub-license of the RMTi Products and
authorize others (including its Subsidiaries, dealers,
distributors, and agents) to license and sub-license the RMTi
Products in Object Code form only, provided that each
Sub-Distributor shall be bound by an agreement with BSD that
(i) protects the confidentiality of, and RMTi's proprietary
rights in the Confidential Information to the same extent as
provided herein, (ii) limits the liability of RMTi to the same
extent as provided herein.
2.4. Use of the Licensed Trademarks. A license to use the Licensed
Trademarks solely in connection with the marketing,
distribution, sublicensing and support of the RMTi Products in
compliance with this Agreement
2.5. Information and Documents. RMTi further grants to BSD, its
successors and assigns, a worldwide, nonexclusive right and
license to copy Documentation and Marketing Materials that
RMTi may provide to BSD, its successors and assigns, in
connection with the use of the RMTi Products.
2.6. Third-Party Works. RMTi shall at all times assure that the
RMTi Products, in executable form, is free from Third-Party
Works, except for the Proper Exceptions.
2.7. Irrevocability. Except as expressly provided herein, this
Agreement and the rights and licenses granted hereunder shall
not be impaired or diminished by the occurrence or continuance
of any breach of any other agreement between the parties, any
lack of capacity or authority, any reorganization,
liquidation, dissolution, merger, or consolidation, any
Insolvency, Event, or any other change of circumstances of
RMTi or BSD.
Section 3
CERTAIN OBLIGATIONS OF BSD
3.1 Promotion of RMTi Products. BSD shall be obligated to promote
the distribution and use of the RMTi Products in compliance
with this Agreement and to:
o use commercially reasonable efforts to solicit orders
for the RMTi Products .
o use commercially reasonable efforts to conduct
demonstration of the RMTi Products at customer sites and at
its own offices.
o maintain adequate office space, facilities, personnel
and management to promote distribution and use of the RMTi
Products.
o in all correspondence or other dealings relating to
or concerned with the RMTi Products, BSD will clearly indicate
that it is acting as a distributor and not as the author or
developer of the RMTi Products.
3.2 Promotion of RMTi Maintenance Services. BSD shall be obligated
to promote RMTi's standard maintenance services as described
in Exhibit B. BSD will be entitled to compensation based on
the initial maintenance sale only.
3.3 End User Agreement. Prior to or upon delivery of a RMTi
Product to an End User, BSD shall enter into a binding End
User Agreement wit the End User, which End User Agreement
shall contain at a minimum the terms set forth on Exhibit C to
this Agreement. BSD shall enforce all of the material terms
and continuation of the End User Agreement with respect to the
RMTi Products.
Section 4
ROYALTIES AND PAYMENTS
4.1 Royalties. In consideration of the rights and licenses granted
to BSD pursuant to Section 3 hereof, BSD agrees to pay RMTi a
non-refundable total license fee of $1.200,000 USD. The rights
of the licenses granted to BSD from RMTi, as defined in this
Agreement, will be granted when - payment is received by RMTi
from BSD for each geographic region as defined below:
$250,000 USD United States
$250,000 USD Canada and Mexico
$250,000 USD Europe
$250,000 USD Asia
$200,000 USD remainder of the world wide territory
RMTi shall deliver a complete set of the RMTi Products upon
RMTi's receipt of the initial non-refundable license fee of
$250,000 for the territory of the United States.
In addition, for each sub-license of the RMTi Products, BSD
will pay RMTi 3% of the net sales revenue generated by BSD and
BSD Sub Distributors as a result of the RMTi Products sales.
The royalty amounts will be paid to RMTi within 30 days after
the end of each calendar quarter and will include a statement
certified by an officer of BSD, showing each customer of BSD
who has licensed the RMTi Products during such previous
calendar quarter and the amounts paid by each customer for
each license. BSD may also be held responsible for additional
charges associated with Updates, to the extent permitted under
Section 5.2 hereof.
4.2. Records Inspection Rights. BSD shall keep and maintain, in
accordance with generally accepted accounting principles,
full, clear and accurate books, records and accounts in
sufficient detail from which the royalties payable to RMTi
pursuant to the terms of this Agreement may be readily
determined. BSD shall permit an independent certified public
accounting firm selected by RMTi and reasonably acceptable to
BSD to examine said books, records and accounts from time to
time during its regular business hours for the purpose of
determining the royalties payable to RMTi hereunder. Prompt
adjustment shall be made to all previous royalty payments or
credits to compensate for any errors or omissions disclosed by
any such examination or inspection. Any of RMTi's costs and
expenses in connection with such examination shall be borne by
RMTi; provided, however, that if such independent certified
public accounting firm discovers an error or omission in said
books, records and accounts which results in a change to the
royalty payments in excess of $5,000, BSD shall pay all costs
and expenses for such examination.
4.3. Maintenance Fees. BSD customers who sublicense the RMTi
Products may enter into maintenance agreements with RMTi in
the form of RMTi's standard maintenance agreement, and in such
event BSD shall be entitled to retain 30% of the maintenance
fees charged under such agreements during the initial term of
such agreements. RMTi will provide end users with the option
to renew their annual or three year maintenance agreements
upon expiration. BSD will be compensated for the initial term
of the maintenance agreement only.
4.4. No Other Payments Obligation. Except as provided in Section
4.1 hereof, the rights and licenses granted hereunder shall be
paid-up, and no further royalty, fee, charge, or payment shall
be required of BSD, its Subsidiaries, or its or their
distributors, dealers, or customers in respect of the grant or
exercise of the rights and licenses granted hereunder. This
Section 4 constitutes the complete and exclusive statement of
royalties, fees, charges, and payments to which RMTi shall or
may be entitled with respect to all rights and licenses
granted in and to the RMTi Products hereunder.
Section 5
CERTAIN OBLIGATIONS OF RMTi
5.1. Initial Deliveries. Simultaneously with the execution and
delivery of this Agreement by the parties, and the
non-refundable license fee paid by BSD to RMTi, RMTi shall
deliver a complete set of the RMTi Products to BSD.
5.2. Delivery of Updates. RMTi shall, promptly following their
incorporation by RMTi in any version of the RMTi Products or
their issuance to any BSD, BSD Sub Distributor, or customer of
RMTi for use in combination with the RMTi Products, offer to
BSD a complete set of all Updates arising from time to time.
BSD may be required, as a condition to receipt of such
Updates, to pay any reasonable charge associated with Updates
of such a substantial nature as to command an increase in
price for all customers of RMTi. Only those customers of BSD
or any BSD Sub Distributor who have maintenance agreements
with RMTi at that time will be entitled to receive such
Updates from BSD. BSD shall reimburse RMTi for reasonable
out-of-pocket costs of media, copy charges, shipping charges
or supplies incurred as a result of such retrieval.
5.3. Further Deliveries. From and after any involuntary termination
of this Agreement pursuant to Section 7.2.2 hereof, BSD and
its designees (including such of its Sub Distributors and
customers as may be expressly afforded such right by BSD)
shall at all times be entitled to at least one full set of all
media and other tangible property representing or containing
the RMTi Products, which shall promptly be delivered to BSD
and/or such designees upon its or their request to the extent
it or they at any time do not have possession of any part
thereof. BSD shall reimburse RMTi for reasonable out-of-pocket
costs of media, copy charges, shipping charges or supplies
incurred as a result of such retrieval.
Section 6
REPRESENTATIONS AND WARRANTIES
RMTi makes the following representations and warranties for the benefit
of BSD and its Sub Distributors and customers.
6.1. No Conflict. RMTi represents and warrants that it is under no
obligation or restriction, nor will it assume any such
obligation or restriction, that does or would in any way
interfere or conflict with, or that does or would present a
conflict of interest concerning, the performance to be
rendered by RMTi hereunder or the rights and licenses granted
to BSD hereunder.
6.2. Ownership and Authority. RMTi represents and warrants that (1)
it is the sole owner of the RMTi Products, free from
Third-Party Works, except for the Proper Exceptions; (2) RMTi
has full and sufficient right to grant the rights and/or
licenses granted to BSD hereunder; (3) the RMTi Products have
not been published under circumstances which have caused a
loss of copyright therein; and (4) when used for its intended
purposes and in accordance with its specifications, the RMTi
Products do not infringe any Intellectual Property rights, nor
has any claim (whether or not embodied in an action, past or
present) of such infringement been threatened or asserted, and
no such claim is pending, against RMTi or (insofar as RMTi is
aware) against any entity from which RMTi has obtained such
rights.
6.3. Conformity of RMTi Products. RMTi represents and warrants that
the RMTi Products (1) have been or shall be prepared by RMTi
(or its assignors or predecessors-in-interest) with
professional diligence and skill, (2) will function on the
machines and with operating systems for which it is designed,
and (3) will substantially conform to the Documentation.
Section 7
INDEMNIFICATION
7.1. RMTi hereby agrees to indemnify, defend and hold harmless BSD,
its officers, directors, principals, employees, affiliates,
and shareholders, and their successors and assigns from and
against any and all claims, damages, losses, liability,
deficiencies, actions, suits, proceedings, costs or legal
expenses (collectively the "Losses") arising out of or
resulting from: (i) any breach of or (ii) any and all costs
and expenses (including reasonable attorneys' and paralegals'
fees) related to the foregoing, and as more fully described
below.
7.2. If BSD receives written notice of the commencement of any
legal action, suit or proceeding with respect to which RMTi is
or may be obligated to provide indemnification pursuant to
this Section 7, BSD shall, within thirty (30) days of the
receipt of such written notice, give RMTi written notice
thereof (a "Claim Notice"). Failure to give such Claim Notice
within such thirty (30) day period shall not constitute a
waiver by BSD of its right to indemnity hereunder with respect
to such action, suit or proceeding. Upon receipt by RMTi of a
Claim Notice from BSD with respect to any claim for
indemnification which is based upon a claim made by a third
party ("Third Party Claim"), BSD may assume the defense of the
Third Party Claim with counsel of its own choosing, as
described below. RMTi shall cooperate in the defense of the
Third Party Claim and shall furnish such records, information
and testimony and attend all such conferences, discovery
proceedings, hearings, trial and appeals as may be reasonably
required in connection therewith. BSD shall have the right to
employ its own counsel in any such action, but the fees and
expenses of such counsel shall be at the expense of BSD unless
RMTi shall not have promptly employed counsel to assume the
defense of the Third Party Claim, in which event such fees and
expenses shall be borne solely by RMTi. RMTi shall not satisfy
or settle any Third Parry Claim for which indemnification has
been sought and is available hereunder, without the prior
written consent of BSD. If RMTi shall fail with reasonable
promptness either to defend such Third Party Claim or to
satisfy or settle the same, BSD may defend, satisfy or settle
the Third Party Claim at the expense of RMTi and RMTi shall
pay to BSD the amount of any such loss within ten (10) days
after written demand therefore. The indemnification provisions
hereunder shall survive the termination of this Agreement.
Section 8
TERM AND TERMINATION
8.1. Term of Agreement. This Agreement shall become effective
commencing on the date first set forth above. Unless
terminated hereunder, this Agreement shall remain in force
through the expiration of all copyrights and other
intellectual property rights in the RMTi Products.
8.2. Termination.
8.2.1. This Agreement may be terminated by mutual
consent of RMTi and BSD at any time.
8.2.2. Any other termination of this Agreement shall
be wrongful and beyond the scope of this
Agreement and shall in no way terminate or
xxxxx the rights and licenses granted under
Section 3 hereof, which shall remain in full
force and effect.
8.2.3. No termination, modification, or waiver of
this Agreement or its provisions shall have
any effect whatsoever on the rights and
licenses previously granted by BSD to any
Subsidiary, distributor, dealer, or customer.
Section 9
LIMITATION OF LIABILITIES
9.1. Exclusion of Indirect Damages, Etc. Neither parry shall be
entitled to indirect, incidental, or consequential damages,
including lost profits based on any breach or default of this
Agreement by the other party.
9.2. Maximum Liability. In no event shall BSD be liable to RMTi,
its successors and assigns, for damages exceeding the license
fees and royalty amounts paid based on the actual scope of
BSD's use of the RMTi
Products. In no event shall RMTi be liable to BSD, it successors and
assigns, for damages exceeding the license fees and royalty amounts paid.
Section 10
GENERAL
10.1. Notice or Payments. Any notice or payment required or
permitted to be made or given by either party hereto pursuant
to this Agreement will be sufficiently made or given on the
date of issuance if sent by such party to the other parry by
mail, telecopy, commercial courier, personal delivery, or a
similar reliable delivery method, addressed as set forth below
or to such other address as a party shall designate by written
notice given to the other party.
In the case of BSD:
BSD
0 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000
Attn.: Xxxxxxx Xxxxxxx, President
In the case of RMTi:
RMTi
00 Xxxx Xxxxx Xxxx Xxxxx 000
Xxxxxx, XX 00000
Attn.: Xxxxx X. Xxxxxx, President
10.2. Independent Contractor. RMTi is and shall remain an
independent contractor with respect to all performance
rendered pursuant to this Agreement. Neither RMTi nor any of
its employees shall be considered an employee or agent of BSD
for any purpose.
10.3. Compliance With Laws and Regulations. RMTi and BSD shall each,
at their own expense, comply with any governmental law,
statute, ordinance, administrative order, rule, or regulation
relating to its duties under this Agreement and shall procure
all licenses and pay all fees and other charges required
thereby.
10.4. Taxes. RMTi and BSD shall each have their own responsibility
for the payment of all taxes and duties imposed by all
governmental entities, as they pertain to its duties,
obligations, and performance under this Agreement.
10.5. Trademarks. BSD will identify the RMTi Products prepared by
RMTi as having been developed by RMTi.
10.6. Time of the Essence. Unless otherwise specified in this
Agreement, time shall be of the essence with respect to the
duties, obligations, and performance of RMTi under this
Agreement.
10.7. Assignment. Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to
include the successors and assigns of such parry; and all
covenants, promises, and agreements by or on behalf of RMTi or
BSD that are contained in this Agreement shall bind and inure
to the benefit of their respective successors and assigns.
10.8. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW HAMPSHIRE
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY IN
SUCH JURISDICTION.
10.9. Amendment/Waiver. No amendment or modification of this
Agreement shall be effective unless set forth in a writing
executed by authorized representatives of both parties. No
waiver of any provision of this Agreement shall be effective
unless it is set forth in a writing which refers to the
provisions so waived and the instrument in which such
provision is contained and is executed by an authorized
representative of the party waiving its rights. No failure or
delay by either party in exercising any right, power, or
remedy will operate as a waiver of any such right, power, or
remedy.
10.10. Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be contrary to law, the
remaining provisions of this Agreement will remain in full
force and effect.
10.11. Freedom of Action. This Agreement shall not be construed to
limit BSD's right to obtain services or software programs from
other sources, to prohibit or restrict BSD from independently
developing or acquiring competitive materials, or to restrict
BSD from making, having made, using, leasing, licensing,
selling, or otherwise disposing of any products or services
whatsoever.
10.12. Third-Party Beneficiaries. It is expressly agreed that (1) the
persons and entities referred to in Section 3.2 hereof, and
(2) the Subsidiaries, Sub Distributors, distributors, dealers,
and customers referred to in Section 7.2 hereof shall
constitute identified third-parry beneficiaries under this
Agreement, and no termination, modification, or waiver shall
be permitted in any manner adversely affecting their interests
without their prior written consent.
10.13. Entire Agreement. The provisions of this Agreement and its
Attachments, by their terms, constitute the entire agreement
between the parties and supersede all prior agreements, oral
or written, and all other communications relating to the
subject matter hereof.
IN WITNESS WHEREOF, the parties hereof have caused this Agreement to be
executed by their respective authorized representatives.
Exhibit A
RMTi Products
Software shall include the below described software, including object code,
documentation and all modifications or enhancements:
AS/400 Programs
o RMTi's Mail System (RMSemail)
o RMTi's Fax System (RFSfax)
o Extend - 400 (used for IBM Office Vision and RMSemail integration)
PC DOS Programs
RFS-PC, a front end PC fax program designed for RFSfax RMS Fax, a PC program
designed to operate with RMSemail
Exhibit B
SOFTWARE LICENSE AGREEMENT
Software License Agreement between__________________________ ("Licensee") and
RDX Acquisition Corp. d/b/a RMTi. #302 - 00 Xxxx Xxxxx Xxxx, Xxxxxx XX, 00000
("RMTi"). This agreement sets forth the terms and conditions under which RMTi
licenses Licensee to use the machine readable object code described as 'Program'
below and supporting documentation delivered with the Program.
LICENSE: In consideration of the license fee paid, RMTi grants to Licensee a
perpetual, personal, non-transferable and non-exclusive license to use the
Program on a single host computer processing unit ("CPU") at the location
specified below.
WARRANTY: RMTi warrants that RMTi shall correct at its expense, any errors or
defects, reported in writing within 90 days of the shipment date of the Program,
which prevent the Program from performing in substantial compliance with the
functional specifications of the documentation accompanying the Program. Except
for the express warranty made in this paragraph, RMTi makes no other warranties,
express or implied, with respect to the Program, including any implied warranty
of merchantability or of fitness for a particular purpose.
AUTHORITY: RMTi warrants that it has the full power and authority to grant the
rights described by this agreement and also warrants that the Program does not
infringe any intellectual property of any third party. RMTi shall indemnify and
hold Licensee harmless from and against any loss, cost, liability and expense
arising out of any breach or claimed breach of this warranty. In the event of a
claimed breach, Licensee will notify RMTi immediately.
PROPRIETARY PROPERTY: Licensee acknowledges that the Program and the supporting
documentation constitute copyrighted, proprietary property and trade secrets of
RM T i and will remain the property of RMTi or other parties with which RMTi has
a licensing agreement. Licensee agrees not to copy the machine readable Program,
except to provide sufficient backup and for no other reason, and agrees not to
copy printed supporting documentation. Licensee's obligation with respect to
Program shall survive any termination, expiration or assignment of this
agreement.
LIMITATION OF LIABILITY: Licensee agrees that, except for RMTi's obligations
described above under 'Authority'. RMTi's liability for damages under this
Agreement, regardless of the form of action, is limited to the License Fee
received under this Agreement. In no event will RMTi be liable for any
incidental or consequential damages. even if it has been advised of the
possibility of such damages.
TAXES: Licensee will pay any sales tax, use tax, personal property tax or any
other taxes, however designated, resulting from this Agreement, excluding taxes
based on RMTi's net income.
MISCELLANEOUS: This Agreement is the complete and exclusive statement of
agreement between the parties which supersedes any and all other agreements
between the parties, oral or written, relating to the subject matter hereof.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New Hampshire, USA. This Agreement is effective upon execution by
an authorized signatory of RMTi. In any action to enforce this Agreement, the
prevailing party shall be awarded all court costs and reasonable attorney's fees
incurred.
Licensee: For RMTi
Authorized Signature: By:
Printed Name: Title:
Title: Date: Date:
Licensed Program Description:
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agreement o Last
Exhibit C
PRODUCT MAINTENANCE AGREEMENT
Product Maintenance Agreement between ___________________ ("Customer") and RMTi
#302 - 00 Xxxx Xxxxx Xxxx. Xxxxxx, XX 00000 ("RMTi").
WITNESSETH: Whereas, RMTi provides maintenance and support services for the
Product(s) described in Appendix A attached, hereinafter "PRODUCT", and whereas,
Customer desires maintenance and support services for the PRODUCT; Now
therefore, in consideration of the mutual covenants, promises and understandings
herein, the parties agree as follows:
SERVICES: RMTi agrees to provide the services below for the PRODUCT.
* Repair or replacement of faulty PRODUCT or components at RMTi's
option. PRODUCT must be returned to RMTi. When possible, RMTi shall
ship replacement components within 24 hours of a failure.
* Technical manual updates as released for each PRODUCT.*
* Customer use of Hot Line Telephone service for access to RMTi support
staff during weekdays (statutory holidays excluded) from 8:00 a.m. to 8:00 p.m.
EST.
* Program PRODUCT Release Notices and Program PRODUCT Releases on
magnetic media.
* Correction of Program PRODUCT errors which cause processing errors,
provided such errors can be shown to exist in Program PRODUCT code unaltered by
Customer.
* User Manual updates as required for each Program PRODUCT Release.
TERMINATION AND RENEWAL: This agreement shall be considered renewed for a
further month period each anniversary date unless terminated by either RMTi or
Customer by written notice, at least 30 days prior to the anniversary date.
Should Customer terminate this agreement and subsequently wish to renew this
maintenance agreement, a renewal fee equal to the annual maintenance fee will be
payable, in advance, together with the annual maintenance fee.
TRAINING/INSTALLATION/SUPPORT EXPENSES: RMTi will be reimbursed by the Customer
at current rates for Customer requested support, training and assistance not
covered by this agreement. All travel costs, accommodation, meals, car rentals,
telephone charges and other miscellaneous expenses incurred by RMTi, in
performance of this agreement, shall be reimbursed by the Customer at cost. All
reimbursements are due within 20 days of invoice.
COPYRIGHT AN'D CONFIDENTIALITY: The Customer hereby acknowledges that all
PRODUCT materials provided under the terms of this agreement are copyrighted,
proprietary and confidential property of RMTi or other parties. Customer hereby
agrees to hold in strictest confidence all material and information provided, to
refrain from disclosing any such information to a third party, to use this data
or information only in the performance of this agreement and to release it only
to those individuals requiring such information. Customer's obligation with
respect to PRODUCT materials received from RMTi shall survive any termination,
expiration or assignment of this agreement.
EFFECTIVE DATE: This agreement shall commence on_________and shall extend for
from that date.
ANNUAL MAINTENANCE FEE: Customer agrees to pay an Annual Maintenance fee of
$___billed annually in advance. RMTi reserves the right to vary the annual
maintenance fee after a period of 12 months from the commencement of this
agreement, in accordance with it's then current rates.
PRODUCT MAINTENANCE AGREEMENT
LEGAL FEES AND WAIVER: In the event of a breach of any of the covenants or
agreements contained herein by Customer or RMTi, the breaching party shall pay
all costs and expenses including a reasonable attorney's fee which may arise or
accrue from enforcing this agreement.
The Customer agrees that RMTi's liability hereunder for damages shall not exceed
the maintenance fee paid for the PRODUCT and shall in no event include any
incidental or consequential damages. In addition, since each customer
configuration and planned method of use is unique, it is the customer's
responsibility to ensure that this PRODUCT will operate satisfactorily in their
environment. It is RMTi's intention to keep this PRODUCT functionally compatible
with future releases of IBM hardware and software, and with external networks to
which it may connect, but this cannot be guaranteed. Furthermore, if this
PRODUCT interfaces with external networks where the precise content or timing of
message delivery is important, it is the responsibility of the Customer to
establish appropriate verification procedures.
GOVERNING LAWS: This agreement shall be interpreted according to the Laws of the
State of New Hampshire. USA. It is understood and agreed by the parties hereto
that if any part, term or provision of this contract is held by the courts to be
illegal or in conflict with any law(s) of the state where made, the validity of
the remaining portions or provisions shall not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the contract
did not contain the particular part, term or provision held to be invalid:
SPECIFIC EXCLUSIONS: The following are specifically excluded from the
services covered by this agreement:
* Repair of PRODUCT or correction of problems caused as a result of
tampering with the PRODUCT, caused by misuse or unintended use of the
PRODUCT, or caused as a result of an act of God (including but not
limited to lightning damage, flood damage or power loss).
* Any and all shipping costs associated with installation or upgrade of
the PRODUCT with the specific exception of costs resulting from
replacement of software or components determined, by RMTi, to be
defective at time of or within a reasonable period after install.
* Training of Customer personnel or installation of PRODUCT.
Any RMTi costs associated with correcting such problems for Customer will be
billed to Customer on a time and materials basis.
THE CUSTOMER ACKNOWLEDGES THAT THEY HAVE READ THIS AGREEMENT, UNDERSTANDS IT AND
AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE CUSTOMER AGREES
THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF AGREEMENT BETWEEN THE PARTIES
WHICH SUPERSEDES ALL PROPOSALS OF PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL
OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT.
Customer: For RMTi:
Authorized Signature: By: _
Printed Name: Title:
Title: Date: Date:
RMTi PRODUCT MAINTENANCE
AGREEMENT APPENDIX A
PRODUCT SCHEDULE
Program Products:
ACCEPTED AND AGREED TO:
(RMTi)
/s/ Xxxxx X. Xxxxxx
By: ___________________________
Xxxxx X. Xxxxxx
Title: President
ACCEPTED AND AGREED TO:
(BSD)
/s/ Xxxxxxx Xxxxxxx
By:___________________________
Xxxxxxx Xxxxxxx
Title: President
ADDENDUM TO SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT
THIS ADDENDUM, dated May 31. 1998, is made to the Software License and
Distribution Agreement dated December.31, 1997 (the "Agreement") by and between
BSD Development Partners, Ltd. (hereinafter "BSD"), 0 Xxxxxxx Xxxx Xxxx, Xxxxxxx
Xxxx, XX 00000, and RDX Acquisition Corp. d/b/a RMTi, #302 00 Xxxx Xxxxx Xxxx,
Xxxxxx, XX 00000 (hereinafter "RMTi").
WHEREAS, BSD and RMTi wish to amend and supplement the terms of the
Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the parties agree as follows:
1. Additional RMTi Products. Exhibit A to the Agreement sets forth the
list of products of RMTi currently included in the definition of RMTi Products
(the "Existing RMTi Products"). There shall be added to Exhibit A, the following
products of RMTi to the extent set forth below (the "Additional RMTi Products):
RMTi's Interactive Voice Response System (RVSvoice)
RVS-PC, a PC DOS program designed to operate with RVSvoice
RMX Connect: BSD is appointed a sub-distributor for RMX Connect
subject to the restrictions and obligations set forth in the
Software License and Distribution Agreement dated November 15,
1996 between RMTi and The Boston Software Works, Inc. ("BSW").
This appointment is subject to BSD's agreement to comply with
all of the terms of such License Agreement applicable to it as a
sub-distributor including without limitation the agreement to
enter into a Sub-distribution Agreement in form and substance
satisfactory to BSW with minimum terms set forth in Exhibit G-1
hereto. BSD's rights shall be limited to the object code only.
2. The payments and geographic regions set forth in Section 4.1 of the
..Agreement are hereby amended as follows:
With respect to the non-refundable license fees of $750,000 paid by BSD
to RMTi to date, the following rights have been granted with respect to
the following products:
$250,000
United States with respect to the existing RMTi Products
SECOND ADDENDUM TO SOFTWARE LICENSE
AND DISTRIBUTION AGREEMENT
THIS SECOND ADDENDUM, dated December 29, 1998, is made to the Software
License and Distribution Agreement dated December 31, 1997 (the "Agreement'") by
and between BDS Development Partners, Ltd. (hereinafter "BSD"), 0 Xxxxxxx Xxxx
Xxxx, Xxxxxxx Xxxx. XX 00000, and RDX Acquisition Corp. ;d/b/a RMTi. 9302 00
Xxxx Xxxxx Xxxx, Xxxxxx, XX 00000 (hereinafter "RMTi").
WHEREAS, the Agreement was amended and supplemented by an Addendum
dated May 31, 1998;
WHEREAS, in consideration of the timely payment by BSD of the final
nonrefundable license fee due under Section 4.1 of the Agreement, BSD and RMTi
wish to further amend and supplement the terms of the Agreement as hereinafter
set forth to discount the final payment by $25,000.
NOW THERFORE, in consideration of the mutual promises and agreements
set forth herein. the parties agree as follows:
1. Section 4.1 of the Agreement is hereby amended to provide that
the total nonrefundable license fee shall be $1,175,000 USD.
2. The payments and geographic regions set forth in Section 4.1
of the Agreement are hereby amended as follows:
With respect to the non-refundable license fees of $1,000.000 paid by BSD to
Riti1Ti to date, the following rights have been granted with respect to the
following ~ products:
$250,000
United States with respect to the Existing RMTi Products
$250,000
Canada and Mexico with respect to the Existing RI~1Ti Products
$250,000
Europe with respect to the Existing RMTi Products
$250,000
United States and Europe with respect to the Additional RMTi Products
With respect to the additional payments of the non-refundable license fees due:
$175,000
Canada and Mexico with respect to the Additional RMTi Products
3. Continuing Effect. Except as specifically supplemented or
amended herein, the License shall continue in full force and effect, including
without limitation all of the other royalty provisions of Section 4.1 of the
Agreement.
BSD DEVELOPMENT PARTNERS, LTD.
BY: /s/ Xxxxxxx Xxxxxxx
-------------------------
RDX ACQUISITION CORP.
BY: /s/ Xxxxx X. Xxxxxx
-------------------------
Xxxxx X. Xxxxxx
