EXHIBIT 10.12
ADVENT SOFTWARE, INC.
SOFTWARE LICENSE AND SUPPORT AGREEMENT
THIS SOFTWARE LICENSE AND SUPPORT AGREEMENT ("Agreement") is entered into by and
between ADVENT SOFTWARE, INC. ("Advent"), a corporation organized under the laws
of the State of Delaware with a business address at 000 Xxxxxxx Xxxxxx, Xxxxx
Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 and
Company Name: Westwood Management Corporation ("Licensee")
Contact: Xxxxx Xxxxx/Xxxxxxxxx Xxxxxx
Address: 000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
It is effective as of the date of shipment of the Software ("Effective Date").
In consideration of the mutual promises and covenants stated below, the
parties hereby agree as follows:
I SOFTWARE LICENSE
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1. Definitions. The following terms are defined for the purposes of this
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Agreement as follows:
(a) "Software" means Advent's proprietary computer program(s) ordered by
Licensee from time to time and described in Exhibit A. "Software"
includes: (i) object code only; (ii) the version indicated in the Exhibit
A (if any); (iii) all material provided in connection with said program,
including, but not limited to diskettes, tapes, Documentation, and any
Updates (as defined in Exhibit B) hereafter furnished to Licensee by
Advent under this Agreement.
(b) "Third Party Software" means the proprietary software of certain third
parties which is enclosed in a separate envelope with the Software or is
embedded in the Software. Licensee understands and acknowledges that
Advent is not the owner of the Third Party Software.
(c) "Designated Equipment" means a primary CPU and one back-up CPU.
(d) "Use" means transferring any portion of any Software from storage units or
media into Designated Equipment for processing.
(e) "Documentation" means the documentation that accompanies the Software.
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2. Term. This Agreement commences on the Effective Date set forth above. It
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shall remain in force until Licensee discontinues the Use of all Software,
or the Agreement is otherwise terminated as provided herein.
3. License Grant. Advent hereby grants, and Licensee hereby accepts, on the
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terms and conditions stated herein, a nonexclusive, nontransferable and
nonassignable (except as expressly provided herein) license to Use the
Software on the primary system of Designated Equipment and to use the
Documentation in conjunction with the permitted Use of the Software. The
Software shall be Used solely by Licensee for processing data for Licensee
and Licensee's wholly owned subsidiaries and shall not be used to process
data, provide reports, or provide access to other output files for any
individual or entity in the investment management or securities transaction
business, other than Licensee. No third party other than Licensee's
employees may have access to the Software, either at the Licensee's
facilities or by any method of remote access, such as by modem. The
Software shall be Used only on such primary system if such system is
operating properly. If the primary system is inoperative, the Software
maybe Used on one backup system for that primary system. If the network
version of the Software is licensed hereunder, then the Licensee is
permitted to Use the Software on one server system and the number of
permitted concurrent users is limited to the number set forth on Exhibit A.
Licensee acknowledges and agrees that the Third Party Software is subject
to additional terms and conditions as described on the enclosed envelope
that includes such Third Party Software.
4. License Fee.
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(a) In consideration for the license granted herein, Licensee shall pay Advent
the amount set forth on Exhibit A plus applicable sales tax for the
software (the "Fee"). Such Fee will be payable upon Advent's execution of
this Agreement or as otherwise stated on Exhibit A and shall be
nonrefundable. Advent shall have no obligation to ship any Software or
provide any services until the Fee has been received.
(b) In addition Licensee will pay and be responsible for any excise, privilege,
sales, use, customs, value added, and any other similar tax (except taxes
imposed with respect to net income), assessment, tariff, levy, or surcharge
(including penalties and interest attributable thereto), imposed by or
under the authority of any foreign, United States, state, or local law with
respect to the license of Software as contemplated by this Agreement. When
Advent has the legal obligation to collect such taxes, the appropriate
amount shall be paid by Licensee to Advent.
5. Copies. No Software or Documentation which is provided by Advent pursuant
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to this Agreement in human readable form shall be copied in whole or in
part by Licensee without Advent's prior written agreement. Additional
copies of printed materials may be obtained from Advent at the charge then
in effect. No Software in machine readable form may be copied by Licensee
in whole or part, except for one copy for Licensee's backup or archival
purposes. Licensee agrees to reproduce all copyright and other proprietary
notices on all copies of the Software and Documentation in the same form
and manner that such copyright and other proprietary notices are included
on the Software or Documentation.
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6. Proprietary Rights and Nondisclosure.
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(a) Licensee recognizes the special value and importance of the protection of
proprietary and confidential information in the highly competitive computer
software field. The Software and Documentation, although copyrighted, are
unpublished and contain proprietary and confidential information of Advent
and are considered by Advent to be trade secrets. Licensee agrees to hold
the Software and Documentation in confidence. Without limiting the
foregoing, Licensee agrees to protect the Software and Documentation at
least to the same extent that Licensee protects its own similar
confidential information and to take all reasonable precautions consistent
with generally accepted standards in the data processing industry to
safeguard the confidentiality of the Software and Documentation.
(b) Licensee shall not provide, disclose or otherwise make available the
Software or Documentation to any person other than Licensee's on-site
employees, contractors and agents having need to Use the Software in
conjunction with the Designated Equipment as permitted by the license
granted in Section 3 above, except with Advent's prior written consent.
Licensee may not use the Software or Documentation except as expressly
provided in Section 3.
(c) Licensee agrees that it will not reverse engineer, reverse assemble,
decompile, or otherwise attempt to derive source code from the Software,
and no rights with respect to Software source code are granted to Licensee.
(d) Title to all Software and any copies of the Software, and portions thereof,
and all intellectual property rights (patent, trade secret, copyright,
trademark and similar rights) in and to the Software and Documentation
shall remain in Advent.
(e) The obligations with respect to nonuse and nondisclosure shall not apply to
information which is or becomes publicly known through no fault of Licensee
and is otherwise not in violation of Advent's rights.
7. Intellectual Property Indemnity.
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(a) Advent shall defend, or at its option, settle any claims brought against
Licensee for infringement of any third party United States copyright,
patent, and any other proprietary rights of any third party by the Software
and shall reimburse Licensee for any judgments, damages, costs or expenses
payable by Licensee to the party bringing such action together with
reasonable attorneys' fees relating thereto. Licensee agrees that Advent
shall be relieved of its obligations under this Section 7 unless Licensee
notifies Advent promptly in writing of and gives Advent the exclusive
authority to defend or settle such claim and gives Advent proper and full
information and assistance to settle or defend any such claim.
(b) If the Software, or any part thereof, is, or in the opinion of Advent may
become, the subject of any claim for infringement of any third party United
states copyright, patent, and any other proprietary rights of any third
party, or if it is adjudicatively determined that the Software, or any part
thereof, infringes any third party United States copyright, patent, and any
other proprietary rights of any third party, then Advent may, at its option
and expense, either (i) procure for Licensee the right to Use the Software
or (ii) replace or modify the
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Software or parts thereof, with other suitable and reasonably equivalent
technology so that the Software becomes noninfringing or (iii) if it is not
commercially reasonable to take the actions specified in items (i) and (ii)
immediately preceding, terminate this Agreement.
(c) The provisions of this Section 7 shall not apply to the Third Party
Software.
IN NO EVENT SHALL ADVENT'S LIABILITY UNDER THIS SECTION 7 EXCEED THE
AMOUNTS PAID BY LICENSEE TO ADVENT PURSUANT TO THIS AGREEMENT UP TO THE
TIME OF THE CLAIM. THE FOREGOING PROVISIONS OF THIS SECTION 7 STATE THE
ENTIRE LIABILITY AND OBLIGATIONS OF ADVENT TO LICENSEE WITH RESPECT TO ANY
ALLEGED INFRINGEMENT OF PATENTS, COPYRIGHTS, OR OTHER INTELLECTUAL PROPERTY
RIGHTS BY THE SOFTWARE OR DOCUMENTATION.
8. Termination. In the event Licensee neglects or fails to perform or observe
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any of its obligations under this Agreement, or if any assignment shall be
made of its business for the benefit of creditors, or if a receiver,
trustee in bankruptcy or a similar officer is appointed to take charge of
all or part of its property, or if Licensee is adjudged as bankrupt, then
this Agreement shall terminate immediately and automatically upon notice by
Advent. Upon termination of any license, Licensee will, at Advent's option,
either return the Software and Documentation to Advent or destroy the
original and all copies and parts thereof. Sections 4 (License Fee), 6
(Proprietary Rights and Xxxxxxxxxxxxx), 0 (Intellectual Property
Indemnity), 9 (Warranty and Disclaimer), 10 (Limitation of Liability), 11
(Licensee Indemnity) and Section II (General) shall survive termination of
this Agreement.
9. Warranty and disclaimer.
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(a) Advent warrants Software media (i.e., the diskettes or tapes on which the
Software is provided) against defects in materials and workmanship for a
period of one year from the date of shipment. During the media warranty
period, Advent will, at its option, either repair or replace defective
Software media. Such repair or replacement shall be the exclusive remedy
for any breach of the warranty set forth in this Section 9(a).
(b) Advent warrants that during the one-year period following the date of
shipment, the Software will perform substantially in accordance with
Advent's published Documentation. Advent shall use commercially reasonable
efforts to remedy or supply a temporary fix, or make an emergency bypass,
if the Software yields incorrect results and if Advent reproduces the
problem in a current, unaltered release of the Software. such efforts shall
be the exclusive remedy for breach of the warranty set forth in this
Section 9(b).
(c) THE WARRANTIES STATED ABOVE AND THE REMEDIES STATED FOR BREACH THEREOF ARE
THE SOLE AND EXCLUSIVE WARRANTIES AND REMEDIES OFFERED BY ADVENT IN
CONNECTION WITH THE SOFTWARE, SOFTWARE MEDIA AND DOCUMENTATION. THERE ARE
NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT
LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
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(d) ADVENT FURTHER PROVIDES THE THIRD PARTY SOFTWARE "AS IS" AND DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10. Limitation of Liability. Advent's liability arising out of or in connection
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with this Agreement or any software licensed hereunder (including Software
or the Third Party Software) shall not exceed the amounts paid by Licensee
for the software giving rise to such liability. IN NO EVENT WILL ADVENT BE
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LIABLE FOR LOST PROFITS, TRADING OR EXECUTION LOSSES, OR FOR ANY
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INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, HOWEVER CAUSED AND ON ANY
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THEORY OF LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING
ANY LIABILITY ARISING OUT OF OR RELATING TO THE THIRD PARTY SOFTWARE, EVEN
IF ADVENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). THESE
LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF
ANY LIMITED REMEDY PROVIDED HEREUNDER. The parties acknowledge that the
limitations set forth in this Section 11 are integral to the amount of
consideration levied under this Agreement.
11. Licensee Indemnity. Licensee shall indemnify and hold Advent harmless from
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any claims, demands, liabilities, actions, suits or proceedings asserted or
claimed by any third party, and agrees to undertake the cost of defending
same, including reasonable attorneys' fees, when such claims, demands,
liabilities, actions, suits or proceedings arise out of Licensee's use of
the Software. Licensee shall be given timely notice of and shall have the
option to undertake and conduct the defense of any such claim, demand,
liability, action, suit or proceeding.
12. Assignments and Sublicenses. Licensee may assign this Agreement to any
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successor in interest or other third party only if (a) Advent agrees to
such assignment in writing and (b) such successor in interest or other
third party agrees in writing to be bound by all the terms and conditions
of this Agreement. This Agreement may not otherwise be assigned or
otherwise transferred by Licensee without Advent's prior written consent.
Licensee shall have no right to sublicense the rights granted hereunder.
13. Precedence. The provisions of any other written communication, purchase
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order, or verbal representation shall not apply to the license of the
Software or to the obligations of Advent as described in this Agreement.
14. Reporting Requirement. Upon request, Licensee agrees to provide Advent with
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information relating to the cumulative total of the fair market value of
assets managed by Licensee (Assets Under Management). Advent may request,
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not more than once annually, that Licensee provide to Advent Form ADV (if
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applicable), or some other reporting medium, including any such
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functionality contained in the Software that will report the Assets Under
Management. Licensee acknowledges that as the total of Licensee's Assets
Under Management changes there may be subsequent changes in support
services fees or subsequent purchases of Software licenses.
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II GENERAL
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15. Governing Law. This Agreement shall be governed by the laws of the State of
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California, including its Uniform Commercial Code.
16. Jurisdiction and Arbitration. If Licensee's location set forth above is
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within any state, territory, or possession of the United States, any
dispute or claim arising out of or in relation to this Agreement, or the
interpretation, making, performance, breach or termination thereof shall be
resolved by the federal or state courts, as applicable, located in San
Francisco, California.
17. English Language. This Agreement is in the English language only, which
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language shall be controlling in all respects, and all versions hereof in
any other language shall be for accommodation only and shall not be binding
upon the parties hereto. All communications and notices to be made or given
pursuant to this Agreement shall be in the English language.
18. Notices. any notice required or permitted to be given under this Agreement
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shall be delivered (i) by hand, (ii) by registered or certified mail,
postage prepaid, return receipt requested, to the address of the other
party first set forth above or to such other address as a party may
designate by written notice, (iii) by overnight courier, or (iv) by fax
with confirming letter mailed under the conditions described in (ii).
Notice so give shall be deemed effective when received, or if not received
by reason of fault of addressee, when delivered.
19. No Waiver. the waiver by either party of a breach of any provisions of this
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Agreement or the failure by either party to exercise any right hereunder
shall not operate or be construed as a waiver of any subsequent breach of
that right or as a waiver of any other right.
20. Severability. In the event that any provision of provisions shall be held
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to be unenforceable, those provisions shall in good faith be renegotiated
to be enforceable and shall reflect as closely as possible the intent of
the original provisions of this Agreement. Such negotiations shall not
affect the enforceability of the remainder of the Agreement.
21. Force Majeure. Nonperformance of either party, except for the making of
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payments, shall be excused to the extent that performance is rendered
impossible by strike, fire, flood, earthquake, governmental acts or orders
or restrictions, failure of suppliers, or any other reason when failure to
perform is beyond the control and not caused by the negligence of the
nonperforming party.
22. Amendments. Any amendment or modification to this Agreement shall be
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effective only if reduced to writing and signed by duly authorized
representatives of Advent and Licensee.
23. Entire Agreement. THIS DOCUMENT CONSTITUTES THE WHOLE AND ENTIRE AGREEMENT
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BETWEEN LICENSEE AND ADVENT WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
NO VERBAL OR WRITTEN COMMITMENTS NOT REFERENCED HEREIN SHALL APPLY.
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This Agreement does not constitute an offer by Advent and it shall not be
effective until signed by both parties.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
Effective Date.
ADVENT SOFTWARE, INC. LICENSEE (Principal/Officer of
Company Only)
By: /s/ XXXXXXXX XXXX By: /s/ XXXXX XXXXX
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(Signature) (Signature)
Xxxxxxxx Xxxx Xxxxx Xxxxx
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(Printed Name) (Printed Name)
VP Finance President
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(Title) (Title)
as of April 3, 1996 April 3, 1996
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(Date) (Date)
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