EXHIBIT 10.12
SOFTWARE LICENSE AGREEMENT
AGREEMENT NO. A0035730
This Software License Agreement ("Agreement") is between TurboWorx, Inc.
("Licensee"), with a place of business at 0 Xxxxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxxxxx 00000, and International Business Machines Corporation ("IBM"), a
New York corporation, through its Almaden Research Center, located at 000 Xxxxx
Xxxx, Xxx Xxxx, XX 00000.
WHEREAS, IBM has developed TSpaces software, a set of network
communication buffers that allow heterogeneous, Java-enabled devices to exchange
data; and
WHEREAS, Licensee wishes to obtain a license to the source code for the
TSpaces software for incorporation into its product offerings and distribution
as object code therein; and
WHEREAS, IBM is willing to license TSpaces software to Licensee,
subject to the terms and conditions of this Agreement;
NOW, THEREFORE, for good and valuable consideration as stated herein,
IBM and Licensee agree as follows:
1.0 DEFINITIONS
1.1 "Agreement" means this Software License Agreement.
1.2 "Customer" means an Enterprise using or licensing Offerings distributed
by Licensee, its Subsidiaries, and/or its or their authorized
distributors, dealers or remarketers.
1.3 "Effective Date" means the date upon which this Agreement has been
signed by both parties.
1.4 "Enterprise" is a legal entity (such as a corporation) and its
Subsidiaries.
1.5 "Licensed Software" means the documents and software, including source
code, listed in Appendix A and provided to Licensee pursuant to Article
2.0 of this Agreement..
1.6 "Net Revenue" means, with respect to any particular calendar quarter,
the invoice price, the license fee, or any other charge for an Offering
to a Customer after any applicable discounts or promotions, without any
deductions except for special packing costs, freight, warehousing,
transit insurance and duties, which may be excluded if such items are
separately stated in the invoice. The Net Revenue for an Offering
transferred to a Customer or other party without cash consideration,
excluding Offerings transferred as prototypes, engineering samples or
qualification units, will be deemed to be the average invoice price of
an Offering sold or licensed to a Customer over the previous three
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months, or in the absence of such transactions, the fair market value
of the Offering to a Customer.
1.7 "Offering" means any product, software or service offering designed
and/or produced by or on behalf of Licensee utilizing or incorporating
the Licensed Software or any part thereof, or any derivative thereof,
or which interacts with any or all of the Licensed Software using the
APIs of the Licensed Software, which is offered for sale or for
license, or otherwise marketed or transferred by Licensee, or its
Subsidiaries.
1.8 "Subsidiary" means a corporation, company or other entity:
i. more than 50% of whose outstanding shares or securities
(representing the right to vote for the election of directors or other
managing authority) are now or hereafter owned or controlled, directly
or indirectly, by a party hereto, but such corporation, company or
other entity will be deemed to be a Subsidiary only so long as such
ownership or control exists; or
ii. which does not have outstanding shares or securities, as
may be the case in a partnership, joint venture or unincorporated
association, but more than 50% of whose 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 will
be deemed to be a Subsidiary only so long as such ownership or control
exists.
2.0 INTELLECTUAL PROPERTY AND RIGHTS THEREUNDER
2.1 Subject to the terms of this Agreement, IBM grants to Licensee a
nonexclusive, worldwide copyright license, to prepare derivative works
of and to use, execute, reproduce, display, modify and perform the
source code for the Licensed Software within Licensee and its
Enterprise only, for the sole purpose of integrating the Licensed
Software into Offerings. Licensee will own the derivative works it
creates, subject to IBM's ownership of the Licensed Software as
delivered hereunder.
2.2 Subject to the terms of this Agreement, IBM grants to Licensee a
nonexclusive, worldwide, royalty bearing copyright license to
distribute copies of the object code of the Licensed Software only as
part of Offerings to Licensee Customers, either directly or through
Licensee Subsidiaries, authorized distributors, dealers or remarketers.
2.3 Subject to the terms of this Agreement, IBM grants to Licensee a
nonexclusive, worldwide, fully paid up copyright license to use,
reproduce and execute the object code of the Licensed Software: (a)
within Licensee's enterprise for purposes of providing maintenance
services related to the Offerings to Licensee's customers, and (b) to
distribute copies of the object code of the Licensed Software, under
terms consistent with the license granted in this Section 2.3, only to
third parties providing development or other services related to the
Offerings to the Licensee, provided, however, that such third
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parties shall not use the Licensed Software for any production or
commercial purposes, or otherwise as a Customer.
2.4 The Licensed Software is licensed, not sold. IBM does not transfer
title to the copyright in the Licensed Software. Except as expressly
permitted herein, Licensee will not rent, lease, assign or otherwise
transfer the Licensed Software.
2.5 Licensee's Offering will be licensed under Licensee's end user license
agreement. Upon IBM's request, Licensee will provide IBM with the form
of Licensee's agreements used to license the Licensed Software as part
of Offerings. Licensee will obtain the Customer's agreement to
Licensee's license agreements that include, at a minimum, the
following: (a) authorization to make only one copy of the Offerings for
backup or archival purposes only; (b) prohibition from any other
copying or transferring of the Offering; (c) direction to destroy all
copies of the Offering, other than the one archival copy, within three
months after license termination; (d) prohibition from reverse
assembling, reverse compiling or translating the Offering except as
permitted by law without Licensee waiving this term of the license
agreement; (e) statements that: the Offering is copyrighted and
licensed; it is not sold; the end user license agreement does not pass
title to the Offering; (f) terms consistent with Article 8.2 of this
Agreement; and (g) the following provision: "Software provided under
this Agreement may contain or be derived from portions of code provided
by third parties under license to Licensee. Customer agrees that its
sole remedy under any cause of action shall be from Licensee and not
any such third party." Licensee will provide for any potential Customer
of Licensee's Offering the opportunity to review the terms of the
license for the Offering prior to installation. Licensee will ensure
that trademarks, copyrights and other notices included in Licensed
Software continue to appear when the Customer runs the Licensed
Software in the Offering.
2.6 IBM will ship or make available to Licensee the Licensed Software
listed in Appendix A, along with an itemized list of the contents of
such Licensed Software and its basic functions, no later than six weeks
after the Effective Date of the Agreement, unless otherwise mutually
agreed upon by the parties.
2.7 Licensee shall imbed or incorporate the Licensed Software in the
Offering. Licensee shall not offer for sale, license, or otherwise
distribute the Licensed Software unless and until imbedded or
incorporated into an Offering, and any such sale or distribution shall
be a material breach of this Agreement.
2.8 It is understood and agreed that IBM retains sole title and ownership
of the Licensed Software and all intellectual property rights related
thereto.
3.0 TECHNICAL COORDINATORS
Xxxxxx Xxxxxxx, for Licensee, and Xxxx Xxxxxx, for IBM, are the
Technical Coordinators for this Agreement. Each Technical Coordinator
will be responsible for
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exchanging information with the other party, coordinating the delivery
of the Licensed Software, and arranging all other matters pertinent to
this Agreement. Either party may change its Technical Coordinator by
giving written notice to the other party. The parties agree that the
Technical Coordinators will meet by phone monthly for one hour, or as
otherwise mutually agreed upon, so that IBM may apprise Licensee of
upcoming releases, bug fixes or other significant information, if any,
regarding the Licensed Software.
4.0 TECHNICAL ASSISTANCE AND CONSULTING
4.1 For the period beginning on the Effective Date of this Agreement and
ending on December 31, 2004 and for each 12 month period thereafter,
IBM will provide to Licensee up to ten (10) hours of Level III
technical assistance or consultation. Level III support provides
commercially reasonable efforts to isolate logical errors in the code
and deliver correction or circumvention (or notice that no correction
or circumvention is available). Level III support may be requested of
the designated IBM contact(s) via email or phone during regular
business hours only and by no more than two designated contact persons
on the Licensee staff. Each company's Technical Coordinator will
designate contact persons(s) for requesting and providing technical
assistance. Either party may change its contact person(s) upon prior
written notice to the other party.
Licensee may request to purchase additional Level III support in 10
hour blocks at the rate of $2,000 for each 10 hour block. Upon IBM's
agreement to provide such additional amounts of Level III support, IBM
will invoice Licensee, and Licensee shall pay such invoice within 30
days of receipt. IBM will have no obligation to provide such additional
Level III support until such invoice is paid in full. Fees for Level
III Support do not apply toward guaranteed minimum royalties on
Offerings incorporating Licensed Software. Licensee is also responsible
for payment of IBM's reasonable travel and living expenses in the event
IBM agrees to provide the technical assistance or consultation at a
location other than the IBM Almaden Research Center.
4.2 Subject to the limitations of the agreed upon Level III support
commitment, IBM and Licensee agree that it is in the best interests of
both parties for Licensee to use in its Offerings the current version
of the Licensed Software, and the Technical Coordinators shall work
together to facilitate Licensee's incorporation of appropriate updates,
modifications, error corrections, or enhancements into its Offerings.
Notwithstanding the forgoing, IBM shall have no obligation to update,
modify, enhance, or add to the Licensed Software, or to deliver to
Licensee any such updates, modifications or enhancements to Licensee in
the event such are made.
4.3 As agreed upon by the Technical Coordinators, but no less frequently
than quarterly, Licensee shall provide to IBM in source code format any
error corrections ("Error Corrections") that Licensee develops for the
Licensed Software, either as a result of Licensee's own initiative or
based on technical consultations with IBM. Subject to the terms of this
Agreement, Licensee grants to IBM a nonexclusive, worldwide copyright
license, to prepare derivative works of and to use, execute, reproduce,
display, modify,
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perform and distribute, and to sublicense others to the same rights as
those granted to IBM hereunder, the source code and/or the object code
for the Error Corrections without limitation. Licensee shall provide
IBM with a certificate of originality or the equivalent for each Error
Correction provided to IBM.
5.0 CONSIDERATION
5.1 Subject to the terms and conditions of this Section 5.0, Licensee shall
pay IBM a royalty of 3% (three percent) of Net Revenue for any sale,
license or other transfer of an Offering, or any Licensee-developed
derivative thereof. Notwithstanding such royalty payment obligation,
for each Calendar Quarter during which this Agreement is in effect,
beginning on or after January 1, 2004, Licensee shall pay IBM, , a
nonrefundable minimum royalty in the amount specified in the table
below.
Year Amount Payable each
Quarter as a Minimum
Quarterly Royalty
2004 $7,500
2005 $10,000
2006 $12,500
2007 $15,000
2008 $17,500
The following shall contribute toward Licensee's minimum quarterly
royalty payment obligation: (i) payment of any royalties due for any
sale, license, or other transfer of an Offering to a Customer, (ii) for
any sale, license or other transfer of an Offering to a Customer
incurring $50,000 or more in aggregate actual or potential payment
obligations to Licensee as part of any single transaction or multiple
related transactions (aggregate payment obligations includes payments
from all sources, including but not limited to products, services or
maintenance), Licensee shall pay IBM a nonrefundable minimum royalty of
$1,500, and (iii) in the event that the total amount due IBM under (i)
and (ii) above for a quarter does not equal or exceed the Licensee's
minimum quarterly payment obligation, Licensee shall pay IBM the
difference.
For each Customer, the balance, if any, of the minimum amount paid
under (ii) above that exceeds the actual royalty due IBM (a "Royalty
Credit Balance") will be applied until exhausted toward Licensee's
future royalty payment obligations for such Customer only. Any future
royalty payments due IBM that are deducted from a Customer's Royalty
Credit Balance shall not apply toward Licensee's ongoing minimum
quarterly royalty payment obligation.
For example, for a Customer transaction in which Licensee pays IBM the
$1,500 minimum under (ii) above, if the actual royalty due IBM for such
transaction is $500, the
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$1,000 balance paid will be treated as a Royalty Credit Balance to be
applied against royalties due IBM from subsequent sales to the same
Customer. After the Royalty Credit Balance is exhausted in this manner,
Licensee would pay IBM the standard royalty on all sales, licenses or
transfers of the Offering.
5.2 An Offering is considered "sold" when billed or invoiced by Licensee,
or its Subsidiaries or thirty (30) days from the date of delivery,
whichever is earlier. An Offering is considered "licensed" when a
license is entered into between Licensee, or its Subsidiaries and a
licensee or thirty (30) days from the date of delivery, whichever is
earlier. An Offering is considered "otherwise transferred" when not
sold or licensed, but delivered by Licensee or its Subsidiaries to
others, or used for its and/or its Subsidiaries' internal production,
use or consumption.
5.3 All royalties and other payments will be paid in US Dollars. All
royalties will be due and payable within thirty (30) days after the end
of each Calendar Quarter, beginning with the first Calendar Quarter of
2004. Licensee will provide to IBM, within thirty (30) days after the
conclusion of each Calendar Quarter, a written quarterly report of all
royalty payments due IBM for the previous Calendar Quarter. The
quarterly report shall be in a format to be defined and mutually agreed
upon by the parties, and will include at a minimum a summary for the
Calendar Quarter of the number of Offerings sold, licensed, or
otherwise transferred by Licensee, and the calculation of the total
payments owed IBM. Such royalty report shall be reviewed and certified
as accuracy and completeness by Xxxxxx Xxxxxxx, Vice President of
Operations and Chief Technical Officer of Licensee, or another officer
of Licensee as mutually agreed upon by the parties in writing. The
consideration set forth in this Article 5 does not include the payment
of fees for technical assistance and consultation due pursuant to
Article 4.1 above or amounts due IBM as reimbursement for reasonable
travel and living expenses.
5.4 "Calendar Quarter" will mean the consecutive three month periods ending
on March 31, June 30, September 30, and December 31.
5.5 Payments due under Articles 5.1, and 5.2 will be sent by electronic
funds transfer to:
IBM Director of Licensing
The Bank of New York
0 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Credit Account No. 000-0000-000
ABA No. 0000-0000-0
Reports will be sent by mail to:
IBM Director of Licensing
Intellectual Property & Licensing
International Business Machines Corporation
0
Xxxxx Xxxxxx Xxxxx, XX - XX000
Armonk, New York 10504-1785
with a copy to:
Almaden Research Center
International Business Machines Corporation
000 Xxxxx Xxxx
Xxx Xxxx, XX 00000
Attn.: Business Relations
5.6 A License Reference Number will be assigned to this Agreement by IBM
upon execution of the Agreement. This number must be included in all
communications, including wire transfer payments, royalty reports, tax
credit certificates, letters, faxes and e-mail messages pertaining to
the payments made pursuant to Articles 5.1 and 5.2.
5.7 In order that the payments and reports required by this Agreement may
be verified, Licensee will keep detailed records which determine
payment(s) due to IBM under this Agreement for a period of at least six
(6) years after the Calendar Quarter in which such Offerings were sold,
licensed, or otherwise transferred.
5.8 Upon IBM's request, but no more frequently than annually (unless in
response to a dispute), Licensee will permit an independent accounting
firm chosen by IBM to have access upon reasonable prior notice at
Licensee's offices during normal business hours to such Licensee
records and information as may be necessary to determine the
correctness of any report or payment made or due under this Agreement.
Licensee will provide its full cooperation in such an audit.
If an audit should disclose any underpayment of payments due IBM,
Licensee will, within thirty (30) days after notice of such
underpayment, pay IBM such amount, together with a late payment fee
calculated in accordance with Article 5.9 below. The cost of the audit
will be at IBM's expense, except if the audit reveals an underpayment
greater than Ten Thousand Dollars ($10,000), in which case Licensee
will pay IBM's reasonable expenses related to the audit.
In addition, IBM may, at any time during the term for payment of
royalties under Article 5.0, request that Licensee investigate
identified Offerings being sold or otherwise transferred by or on
behalf of Licensee without royalty payments to IBM, to determine
whether royalties are due IBM pursuant to Article 5.0. Licensee agrees
to investigate in good faith, provide a report to IBM of the results of
the investigation, and pay royalties on such Offerings within 90 days
of the request to investigate if Licensee's investigation reveals that
royalties are payable under Article 5.0.
5.9 IBM will be entitled to late payment fees on payments due but not
received within thirty (30) days after the due date. Late payment fees
are defined as the lesser of one percent
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(1%) of the amount due, compounded each subsequent thirty (30) day
period that payments remain unpaid, or the highest rate permitted by
law.
5.10 Licensee will bear and pay all taxes (including, but not limited to,
sales, property and value added taxes) imposed by any governmental
entity of any country in which Licensee is doing business, except that
Licensee will not be liable for any taxes based on IBM's net income.
Taxes paid by Licensee will not be deducted from or credited against
payments due IBM.
6.0 TERM AND TERMINATION
6.1 The term of this Agreement ("Term") will commence on the Effective Date
and will expire on December 31, 2008.
6.2 If any default of this Agreement occurs, and such default is not cured
within thirty (30) days after written notice from the non-defaulting
party, the non-defaulting party shall have the right to terminate this
Agreement by giving written notice of termination to the defaulting
party, which termination shall be effective thirty (30) days after
receipt of such written notice of termination.
6.3 IBM may terminate this Agreement if Licensee becomes insolvent, is
dissolved or liquidated, has a petition in bankruptcy, reorganization,
dissolution or liquidation, or similar action filed by or against it,
is adjudicated a bankrupt, has a receiver appointed for its business,
or makes an assignment for the benefit of creditors.
6.4 Upon the termination of this Agreement under this Article 6.0, the
licenses granted to Licensee under Article 2.0 above shall terminate,
and Licensee shall make no further use of, nor sell, license or
otherwise transfer, the Licensed Software, provided, however, that
after any termination except for Licensee's default, Licensee may
continue to collect recurring license fees from Customers that licensed
Offerings under a term license while the Agreement was in effect, and
shall pay IBM royalties arising therefrom until such term licenses
expire or are terminated. Upon termination, Licensee agrees to return
all copies of the Licensed Software or destroy the Licensed Software
then in its possession and certify its destruction no later than five
(5) days after the termination date specified in the termination
notice. Licensee's payment obligations under Article 5.0 shall survive
any termination of this Agreement.
6.5 Either party may terminate this Agreement at any time by notifying the
other party upon sixty (60) days prior written notice. Licensee's
payment obligation under Article 5.0 shall survive any termination of
this Agreement, and Licensee shall pay IBM the Minimum Quarterly
Royalty payment, as provided in Section 5.1, for the Calendar Quarter
in which such termination is effective.
6.6 Notwithstanding any other provision of this Agreement, any licenses
granted to Customers in or to any Offering prior to termination of this
Agreement shall not be
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affected by such termination, but shall survive the termination of this
Agreement and remain in effect in accordance with its terms.
7.0 CONFIDENTIALITY
7.1 "IBM Confidential Information" means the Licensed Software, in both
source and object code form, provided to Licensee by IBM pursuant to
this Agreement. "Licensee Confidential Information" means all Licensee
quarterly royalty reports furnished under this Agreement, and the
identity of Licensee's Customers.
7.2 Subject to Section 7.3 below, IBM Confidential Information and Licensee
Confidential Information will be kept confidential under the terms of
Confidential Disclosure Agreement ("CDA"), No. 3554 between IBM and
Licensee as modified by Supplement 1 thereto. The parties agree that
this Section 7.2 extends the term of the CDA, as provided in Supplement
1, to be consistent with the term of this Agreement.
7.3 Notwithstanding the terms of the CDA, IBM source code will be held
confidential by Licensee for a period of seven (7) years from the
original expiration date of this Agreement, whether or not terminated
earlier for any reason, and Licensee agrees to use IBM source code only
for purposes of this Agreement or otherwise for the benefit of IBM.
7.4 Nothing herein shall be construed to prevent a party from seeking or
obtaining injunctive relief against the actual or threatened disclosure
by the other party of its Confidential Information.
8.0 WARRANTY, REPRESENTATIONS, DISCLAIMER, INDEMNIFICATION AND LIMITATION
OF LIABILITY
8.1 IBM warrants that it has the right to grant the licenses granted in
Article 2.0.
8.2 EXCEPT AS PROVIDED IN ARTICLE 8.1, THE LICENSED SOFTWARE ANY OTHER
DELIVERABLES, AND ANY SERVICES PROVIDED UNDER THIS AGREEMENT ARE
PROVIDED "AS IS", AND IBM MAKES NO WARRANTY, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE UNDER THIS
AGREEMENT.
IBM DOES NOT REPRESENT OR WARRANT:
(i) that Licensee will successfully produce Offerings using or based on
the Licensed Software;
(ii) that the Licensed Software provided under this Agreement will meet
the requirements of Licensee, its Subsidiaries, or its or their
distributors, dealers, or remarketers, or any of its or their
Customers; or
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(iii) that the Licensed Software or any other items provided under this
Agreement do not infringe any third party patents or any other
intellectual property right.
8.3 Licensee will, at Licensee's expense, defend, indemnify and hold
harmless IBM, its Subsidiaries, and its and their officers, directors,
agents, representatives and employees from and against any and all
claims, demands, damages, liabilities, penalties, and expenses,
including, but not limited to, reasonable attorney's fees and costs,
whether arising in contract, tort or otherwise, wherever and by
whomever brought, arising out of, in connection with a claim brought
against IBM by any third party (other than an IBM Subsidiary),
resulting from (i) Licensee's modification of the Licensed Software or
integration of the Licensed Software into Offerings; (ii) distribution
or licensing of Offerings, either alone or in combination with other
Licensee offerings, or (iii) Licensee's breach of this Agreement. Such
obligation to defend, indemnify and hold harmless is subject to and
conditioned on: (i) IBM promptly notifying Licensee in writing of such
claim, demand, damage, liability, penalty or expense; (ii) IBM
cooperating with Licensee, at Licensee's expense, in the defense of the
claim, as may be reasonably requested by Licensee; and (iii) Licensee
having full control over the defense (including selection and
management of counsel) and any monetary settlement of the matter;
provided however, IBM may participate in any such defense at its own
expense. IBM's consent is required for any non monetary settlement or
other resolution of the matter which may materially and adversely
affect IBM.
8.4 If an infringement claim is threatened or actually made with respect to
the Licensed Software, IBM may (at its option) replace the Licensed
Software with a software program that is at least functionally
equivalent. If IBM determines that such a software program is not
reasonably available, Licensee agrees to return any copies of the
Licensed Software and IBM will have the right to terminate the
Agreement.
8.5 Except for either party's breach of Article 7.0, Licensee's breach of
Article 2, and the costs of indemnification under Article 8.3, each
party's cumulative liability for damages to the other party under this
Agreement, for any cause whatsoever, regardless of form or action,
shall be limited to US$100,000. The foregoing does not apply to any
payment obligation due and owing under this Agreement.
8.6 Except for breach of Article 2.0 and 7.0, and for any costs of
indemnification under Article 8.3, neither party shall be liable to the
other for indirect, incidental or consequential damages arising out of
or caused by the performance or nonperformance of this Agreement, the
breach of its terms and conditions, or the termination of this
Agreement. In addition, IBM shall not be liable for any claim by
Licensee based on any third party claim (except as specifically set
forth in Article 8.4).
9.0 GENERAL PROVISIONS
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9.1 This Agreement does not confer any rights to use in advertising,
publicity or other marketing activities any name, trade name,
trademark, or other designation of either party hereto, including any
contraction, abbreviation, or simulation of any of the foregoing
without prior written agreement.
9.2 All notices, other than those related to payments under Article 5.0
(which will be governed by the notice requirements in Article 5.0),
will be in writing and will be valid and sufficient if sent by: (1)
registered or certified mail, return receipt requested, postage
prepaid; (2) by facsimile (provided the receipt of the facsimile is
evidenced by a printed record of completion of transmission); or (3) by
express mail or courier service providing a receipt of delivery.
Notices will be effective upon receipt. Notices will be addressed to
the parties at the following addresses:
To IBM:
Almaden Research Center
International Business Machines Corporation
000 Xxxxx Xxxx
Xxx Xxxx, XX 00000
Attn.: Business Relations
To Licensee:
Turboworx, Inc.
0 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Either party may change its address by a notice given to the other
party in the manner set forth above.
9.3 Neither party will be liable for any failure or delay in the
performance of its obligations under this Agreement if such failure or
delay is due to acts of God, acts of the other party, fire, flood,
natural catastrophe, acts of any government or of any civil or military
authority, national emergencies, riots, war, insurrection, strikes, or
any occurrence beyond the reasonable control of such party.
9.4 Each party agrees to comply and to reasonably assist the other in
complying with applicable U.S. federal, state and local laws,
regulations and ordinances as they apply to this Agreement, including,
without limitation, those laws and regulations of the U.S. Department
of Commerce relating to the export or re-export of technical data or
commodities.
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9.5 Except as specifically set forth in this Agreement, no license is
granted or implied, either directly or indirectly, by implication or
estoppel or otherwise, to either party under any patent, copyright or
other intellectual property right of the other party.
9.6 Licensee may not assign, delegate or otherwise transfer this Agreement
or its rights or obligations hereunder without the prior written
consent of IBM. Notwithstanding the foregoing, Licensee may assign this
Agreement in connection with the merger of Licensee with another party,
the acquisition of Licensee by another party, or the sale of all or
substantially all of the assets of Licensee to another party, provided
that (a) the acquiring party is not involved in a dispute with IBM
related to intellectual property rights of any kind, and (b) the
acquiring party shall agree in writing to assume and be bound by all of
Licensee's obligations under this Agreement (c) prior written notice of
such assignment is provided to IBM. ANY ASSIGNMENT OTHER THAN AS
EXPRESSLY PROVIDED IN THIS SECTION 9.6 IS VOID.
9.7 Except for claims arising out of Articles 5.0, 7.0 or 8.3, neither
party may bring an action, regardless of form, arising out of the
performance of this Agreement more than one year after the cause of
action has accrued.
9.8 This Agreement will not be construed to establish any form of
partnership, agency, franchise or joint venture of any kind between
Licensee and IBM, nor to constitute either party as the agent,
employee, legal representative, or any other form of representative of
the other.
9.9 Each party acknowledges that it has not relied on any promises,
inducements, representations or other statements made by the other
party regarding the commercial viability, profitability or success in
the marketplace of any Offerings, and that each party's decision to
enter into this Agreement is made independently from the other party.
9.10 Each party represents that it has, or will have, in place appropriate
agreements with its employees or others whose services the party may
require, sufficient to enable such party to comply with all the
provisions of this Agreement.
9.11 Nothing in this Agreement will be construed to limit the right of
either party, alone or with others, to design, develop, make, procure,
market and/or maintain offerings, now or in the future, which may
constitute competitive alternatives to the Licensed Software.
9.12 If any provision of this Agreement is held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions will in no way be affected or impaired thereby so
long as the intent of the parties can be preserved.
9.13 This Agreement is governed by the laws of the State of New York,
without regard to the conflict of laws provisions thereof. Any
litigation relating to this Agreement will be brought in a U.S. federal
court if there is jurisdiction. The parties waive the right to trial by
jury in any matter which arises under this Agreement.
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9.14 Any rights and obligations which by their nature survive and continue
after any expiration or termination of this Agreement will survive and
continue and will bind the parties and their successors and permitted
assigns, until such obligations are fulfilled.
9.15 This Agreement and the Appendix are the complete and exclusive
agreement between the parties regarding the subject matter hereof and
supersede any prior oral or written communications or understandings
between the parties related to the subject matter hereof.
By signing below, the parties agree to the terms of this Agreement.
INTERNATIONAL BUSINESS TURBOWORX, INC.
MACHINES CORPORATION
------------------------------ ------------------------------
Xxxxx Xxxxx Xxxxxx Xxxxxxx
Manager, Business Development Vice President, Operations
Date: Date:
------------------------- -------------------------
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APPENDIX A
"Licensed Software" includes the following:
TSpaces version 3.0
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