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EXHIBIT 10.20
SOFTWARE 2000
MASTER SOFTWARE LICENSE AGREEMENT
NUMBER 96-2283
This Master Software License Agreement (this "Agreement") is made as of the
last date written below, by and between SOFTWARE 2000, INC., a corporation
having a principal place of business at 00 Xxxxxxxxxxxxxx Xxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000, XXX ("SOFTWARE 2000") and XXXXXXX CENTRAL HOLDING, INC., a
corporation having a place of business at 0000 Xxxxxx Xxxxx Xxxx, Xxxxxxx,
Xxxxxxx 00000 ("CUSTOMER").
1. LICENSE GRANTED.
(a) Subject to all of the limitations and conditions contained in this
Agreement, SOFTWARE 2000 grants to CUSTOMER the following non-transferable and
non-exclusive license rights to use the software system(s) described in the
attached schedule(s) (the "Software Schedule(s)") and any corrections,
enhancements, updates and new releases thereto which are provided generally by
SOFTWARE 2000 to its customers who are active on maintenance for the software
system(s) and are not independently priced and licensed (the software
system(s), together with any corrections, enhancements, updates and new
releases being referred to as the "Software System(s)"), and the related system
and user documentation provided by SOFTWARE 2000. The Software System(s) and
documentation may be used solely within North America, in the ordinary business
activities of CUSTOMER, for its internal operations only. The Software
System(s) or portions thereof which operate on an IBM AS/400 computer may be
used only on the designated production computer specified in the Software
Schedule(s) (the "Designated Production Computer(s)") at the designated
production location(s) specified in the Software Schedule(s) (the "Designated
Production Location") The Software System(s) or portions thereof which operate
on a personal computer, if any, may be used only by the number of "client
seats" specified in the Software Schedule(s) (i.e. number of authorized
personal computer(s)). The Repository (as described in the technical
documentation provided by SOFTWARE 2000) may be installed and stored only on
the number of intermediate server(s) specified in the Software Schedule(s).
(b) The Software System(s) which operate on an IBM AS/400 computer may be used
on a temporary back-up computer located at the designated production
location(s) only if the designated production computer(s) is inoperative
because of a malfunction, the performance of preventive maintenance, or
engineering changes to the designated production computer(s).
(c) The Software System(s) (i) include source code for the Software Systems(s),
with the exception of source code for certain Software System(s) or portions
thereof, and (ii) do not include class libraries for any Infinium Software
System(s). Customer may from time to time request SOFTWARE 2000's then current
list of the Software System(s) or portions thereof for which source code and/or
class libraries are not provided.
2. OWNERSHIP; NON-DISCLOSURE AND COPIES
CUSTOMER acknowledges that the Software System(s); all source code,
object code, class libraries, user interface screens, algorithms, development
frameworks, repository, system designs, system logic flow, and processing
techniques and procedures related thereto; any system, user, or other
documentation related thereto; any copies and derivatives of any of the
foregoing, in whole or in part; as well as all copyright, patent, trade secret
and other proprietary rights in any of the foregoing; are and shall remain the
sole and exclusive confidential property of SOFTWARE 2000 or SOFTWARE 2000's
licensor. CUSTOMER AGREES THAT IT WILL NOT DISCLOSE OR OTHERWISE MAKE
AVAILABLE TO THIRD PARTIES THE SOFTWARE SYSTEM(S) OR RELATED DOCUMENTATION
EXCEPT WHEN DISCLOSURE IS NECESSARY TO THE CUSTOMER's PERMITTED USE HEREUNDER
OF THE SOFTWARE SYSTEM(S) AND THE THIRD PARTY AGREES TO BE BOUND BY THE TERMS
CONTAINED IN THIS AGREEMENT. CUSTOMER shall hold as SOFTWARE 2000's
confidential property, and shall further safeguard against disclosure, all
copies of the Software System(s) in whole or in part, and all other information
furnished by SOFTWARE 2000 to CUSTOMER in connection with the Software
System(s) licensed under this Agreement or in connection with any other product
or service or proposed product or service of SOFTWARE 2000, including all
source and object code (whether provided on physical media, electronically or
otherwise), all system documentation (in any form), and the terms and
conditions of this Agreement, in the same manner as it safeguards its own
confidential property against disclosure, provided that such safeguards are at
least equal to industry standards, and shall take such steps as are reasonably
necessary to ensure that the provisions of this Agreement relating to
confidentiality and non-disclosure are not violated by any employee, agent or
other representative of CUSTOMER. CUSTOMER shall not rent, lease, decompile,
disassemble, or reverse engineer any portion of the Software System(s).
CUSTOMER may not copy the Software System(s) without the prior written
permission of SOFTWARE 2000, except to make a copy of any program which is
required as an essential step in its utilization or to make an archival or
back-up copy of the Software System(s). CUSTOMER shall not alter or remove any
SOFTWARE 2000 or other copyright notice from the Software System(s), the
documentation or any permitted copies thereof and shall ensure that all copies
contain any such SOFTWARE 2000 or other copyright notice. CUSTOMER shall
indemnify and save SOFTWARE 2000 harmless from any and all damages arising out
of or in connection with a breach of this Paragraph 2, including but not
limited to the legal fees and disbursements of SOFTWARE 2000 incurred in
connection with any breach or threatened breach of this Paragraph 2. CUSTOMER
agrees that if it learns of any breach of the non-disclosure provisions
contained herein, it shall, within ten (10) business days of learning of any
such breach, notify SOFTWARE 2000 in writing of the breach, specifying fully
the nature and manner of the breach. CUSTOMER further agrees to cooperate fully
with SOFTWARE 2000 in any investigations and legal actions relating to such
breach, including legal actions for injunctive or other equitable relief, that
SOFTWARE 2000 may take in connection with such breach.
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3. PAYMENT; TAXES
With each Software System, CUSTOMER shall pay SOFTWARE 2000, or its agent or
designee, license and, if applicable, professional service fees in accordance
with the payment terms specified in the Software Schedule(s). CUSTOMER shall
pay SOFTWARE 2000, within thirty (30) days of billing by SOFTWARE 2000, all
charges for travel and out-of-pocket expenses incurred by SOFTWARE 2000 in
connection with training, education or other professional services provided by
SOFTWARE 2000, and, for so long as SOFTWARE 2000 is maintaining the Software
System(s) and CUSTOMER has elected to continue such maintenance, for ongoing
maintenance fees and expenses related thereto. CUSTOMER shall pay all taxes or
duties, fees and governmental charges, however designated, (including personal
property taxes, sales taxes, use taxes and customs duties but not including any
income or corporate excise taxes assessed against SOFTWARE 2000) arising from,
or based upon, the Software System(s) licensed hereunder, the license fee for
the Software System(s), other amounts payable under this Agreement, any services
provided under this Agreement or the operation and use of the Software
System(s), CUSTOMER shall pay SOFTWARE 2000's then current administrative fee
in connection with any transfer of a Software System from one Designated
Production Computer to another.
4. DELIVERY.
Within thirty (30) days after the date of execution of this Agreement by
SOFTWARE 2000, or such later date specified in a Software Schedule, SOFTWARE
2000 will deliver to CUSTOMER the Software System(s) and all related
documentation.
5. MODIFICATIONS.
CUSTOMER may modify the Software System(s) only in order to adapt the Software
System(s) for CUSTOMER's permitted use hereunder, provided, however, SOFTWARE
2000's maintenance and warranty obligations set forth in Paragraph 6 and 7
shall apply only to the version of the Software System(s) released generally by
SOFTWARE 2000 to its customers and not to any version which has been modified
by CUSTOMER. If modifications are made by CUSTOMER that result in SOFTWARE
2000 being relieved of its obligation to provide maintenance services, SOFTWARE
2000 shall not be required to reimburse CUSTOMER for any prepaid maintenance.
6. MAINTENANCE SERVICES; PROFESSIONAL SERVICES. CUSTOMER may purchase
maintenance for the Software System(s) for so long as SOFTWARE 2000 continues
to maintain such Software System(s), and in accordance with SOFTWARE 2000's
then current maintenance policies. Maintenance services do not include the
maintenance of conversion programs, interfaces or other software delivered as
part of professional services under this or any other agreement for
professional services. Professional services will be priced on a time and
materials basis at SOFTWARE 2000's then current rates or at such other rates as
may be set forth in the Software Schedule(s) or a separate Professional
Services Agreement or similar agreement, and, at SOFTWARE 2000's discretion,
will be subject to the execution by CUSTOMER of a Professional Services
Agreement or similar agreement. For these purposes, one (1) consulting equals
one (1) person for eight (8) hours and one (1) education credit equals one (1)
person in one (1) class for one (1) day. All professional services provided by
SOFTWARE 2000, which are not listed on a Software Schedule(s) to this Agreement
or provided under a Professional Services Agreement, including but not limited
to services provided by SOFTWARE 2000's support organization, shall be deemed
to have been provided under this Agreement.
7. WARRANTIES. (a) SOFTWARE 2000 represents and warrants that it is the lawful
owner or licensee of the Software System(s) and has full legal power and
authority to license the Software System(s) to CUSTOMER as provided in this
Agreement. (b) SOFTWARE 2000 warrants that, for as long as CUSTOMER is active
on maintenance for the Software System(s), the Software System(s) will operate
in substantial conformity with the Functional Documentation supplied by
SOFTWARE 2000 within the Software System(s) when used in strict compliance
therewith; provided, however, that any graphical user interface separately
priced and licensed hereunder (including but not limited to Infinium: Desktop
Manager) will operate only in conjunction with certain Software System(s) and
releases thereto in accordance with a list published by SOFTWARE 2000 from time
to time. ("Functional Documentation" is the "help text" and/or the "how to"
text provided within the Software System(s).) This warranty is contingent upon
(a) CUSTOMER's installation of all corrections, enhancements, updates, and new
releases provided by SOFTWARE 2000 to CUSTOMER as part of maintenance services
and (b) the absence of damage or abuse to the Software System(s).
Notwithstanding the foregoing, CUSTOMER acknowledges that (i) it is solely
responsible for having the appropriate compatible network(s) and operating
system environment(s), and (ii) since the Software System(s) is complex and,
therefore, may have defects, CUSTOMER'S sole and exclusive remedy for any such
defects shall be as follows: If the Software System(s) fails to perform as
warranted, SOFTWARE 2000 shall, within a reasonable period of time, provide all
reasonable programming services to correct programming errors in the Software
System(s), or at its sole option, replace the Software System(s). (c) Any
professional services provided under this Agreement are provided "as is"
without representation of warranty of any kind or nature. (d) SOFTWARE 2000
may offer CUSTOMER the opportunity to license programs of third parties by
agreement between CUSTOMER and the third party (including but not limited to,
"shrink wrap" agreements). SOFTWARE 2000 MAKES NO REPRESENTATION OR WARRANTY
WITH RESPECT TO SUCH PROGRAMS. CUSTOMER agrees that SOFTWARE 2000 shall have
no responsibility or liability whatsoever with respect to such programs and
that any damage, loss, expense, claim, suit, or other problem arising in
connection with such programs shall be exclusively between CUSTOMER and such
third parties.
8. DISCLAIMER OF WARRANTIES.
EXCEPT AS EXPRESSLY SET FORTH IN PARAGRAPH 7, SOFTWARE 2000 MAKES NO WARRANTY
OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
ANY IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
ANY WARRANTIES OF QUALITY OR PERFORMANCE, OR ANY WARRANTIES OF COMPATIBILITY
WITH HARDWARE OR WITH NETWORK OR OPERATING SYSTEM ENVIRONMENTS OR WITH
NON-SOFTWARE 2000 SOFTWARE.
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9. LIMITATIONS OF LIABILITY.
________ event shall Software 2000's aggregate, cumulative monetary
liability for any damages under or related to this Agreement from any cause
whatsoever, regardless of the form of action, exceed the license fees actually
paid by CUSTOMER to SOFTWARE 2000 for the applicable Software System(s).
Without affecting the applicability of the preceding sentence, in no event will
SOFTWARE 2000 or its officers, directors, affiliates, employees, agents or
representatives, be liable for loss of profits, business, use or data, nor for
interruption of business, nor for any other indirect, incidental,
consequential or punitive damages even if SOFTWARE 2000 was advised of the
possibility thereof, regardless of the form of action.
10. TERM; TERMINATION AND OTHER REMEDIES OF SOFTWARE 2000.
(a) This Agreement shall remain in effect until terminated pursuant to this
Paragraph 10. If CUSTOMER (i) fails to pay any amount due hereunder within
thirty (30) days of the date such amount is due, (ii) breaches any of its
obligations under Paragraph 2 or the first sentence of Paragraph 11; (iii)
fails to perform any other material obligation hereunder if such failure has
not been cured within thirty (30) days after SOFTWARE 2000 has given CUSTOMER
notice of such failure; or (iv) causes or permits the winding up or liquidation
of its affairs, voluntarily, or by order of a court adjudging CUSTOMER bankrupt
or insolvent or approving as properly filed a petition seeking reorganization
of CUSTOMER, then SOFTWARE 2000 may, in its sole discretion, do all or any of
the following: terminate this Agreement and/or the license to use the Software
System(s) granted hereunder, by providing written notice to CUSTOMER, suspend
and/or terminate performance of any maintenance, professional or other
services, upon delivery of written notice to CUSTOMER, and/or disable or
deactivate the Software System(s) to the extent it is technically possible to
do so and/or refuse to issue the key or other mechanism which enables the
Software Systems(s) to operate on any computer(s), upon delivery of written
notice to CUSTOMER.
(b) Upon any termination of this Agreement and/or the license to use any
software System(s), CUSTOMER shall cease to use the Software System(s) and
shall return to SOFTWARE 2000 the Software System(s) and all copies thereof and
all proprietary and confidential property of SOFTWARE 2000, including, without
limitation, all source code, object code and documentation. CUSTOMER shall
expunge all copies of the source code or object code from its designated single
production computer or any other computer containing such codes and shall
provide a certificate of an officer of CUSTOMER stating that all such codes
have been expunged from its computer hardware. SOFTWARE 2000 shall also have
such other legal and equitable rights and remedies to which it may be entitled
with respect to CUSTOMER's failure to comply with the provisions of this
Agreement. CUSTOMER agrees that Paragraphs 2, 3, 7, 8, 9, 10 and 11 of this
Agreement shall survive any termination of this Agreement and/or any license to
use a Software System and shall remain in full force and effect.
11. GENERAL.
CUSTOMER shall not, voluntarily or involuntarily, sublicense, sell, assign,
give or otherwise transfer the license granted hereunder, or any copies of the
Software System(s) or any other information furnished by SOFTWARE 2000 to
CUSTOMER. This Agreement, which shall include all schedules and addenda
attached hereto or as may be executed hereafter in reference to this Agreement,
may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument. This
Agreement shall be governed by and interpreted under the laws of the
Commonwealth of Massachusetts without giving effect to the conflict of laws
principles thereof. This Agreement sets forth the entire understanding between
the parties, is binding upon and inures to the benefit of the parties hereto and
their respective successors and may be amended only by a written instrument
executed by both an officer of SOFTWARE 2000 and by CUSTOMER. If two or more
entities are named herein as CUSTOMER, their obligations shall be joint and
several. This Agreement supersedes any and all prior and contemporaneous
conversations, understandings and agreements between the parties, including any
request for proposal or similar document and any responses thereto and any oral
or written information or advice given by SOFTWARE 2000, its employees, agents
or representatives, all of which are of no further force and effect, and
supersedes the terms of any and all purchase orders or invoices. The execution
of any amendment, schedule or addenda hereto after the date of this Agreement
shall also be deemed to supersede any and all conversations, understandings and
agreements or similar documents and responses thereto and any oral or written
information or advice given by SOFTWARE 2000, its employees, agents or
representatives, which are prior to or contemporaneous with the execution of
such amendment, schedule, or addenda, and any and all purchase orders or
invoices are related thereto. If any provision of this Agreement shall be
held by a court of competent jurisdiction to be contrary to law, that provision
will be enforced to delay the maximum extent permissible, and the remaining
provisions of this Agreement will remain in full force and effect. Neither the
failure nor any delay on the part of either party to exercise any right, remedy,
power or privilege under this Agreement shall operate as a waiver thereof. No
claim or action, regardless of form, arising out of this Agreement, other than
a claim or action relating to a breach of Paragraph 2 or the first sentence of
this Paragraph 11, may be brought by either party more than one (1) year after
the cause of action has arisen.
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EACH PARTY HAS CAUSED THIS AGREEMENT TO BE EXECUTED BY ITS DULY AUTHORIZED
OFFICIALS(S).
SOFTWARE 2000, INC. XXXXXXX CENTRAL HOLDING, INC.
By: /s/ Xxxx Xxxxx Xxxxx By:/s/ Xxxx X. Xxxxxx
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Name: Xxxx Xxxxx Xxxxx Name: Xxxx X. Xxxxxx
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Title: Vice President Title: CFO
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Date: Oct 31, 1996 Date: 10-30-96
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