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EXHIBIT 2.3
SOFTWARE LICENSE AGREEMENT
This Software License Agreement (the "Agreement") is made this 8th day of
April, 1999, by and between Seagull Software Systems, Inc., a Georgia
corporation ("Seagull"), and ObjectShare, Inc., a Delaware corporation
("ObjectShare").
W I T N E S S E T H
WHEREAS, Seagull and ObjectShare have entered into that certain Asset
Purchase Agreement dated as of even date herewith (the "Purchase Agreement")
pursuant to which ObjectShare shall sell to Seagull and Seagull shall purchase
from ObjectShare the Rights and Assets (as such term is defined in the Asset
Purchase Agreement); and
WHEREAS, Seagull has agreed, as a condition precedent to ObjectShare's
obligations under the Purchase Agreement, to grant to ObjectShare a limited
right to use the computer program known as PARTS for Java, including both source
and object code (the "Software"), on the terms and conditions set forth in this
Agreement.
NOW THEREFORE, in consideration of the sum of $10.00 in hand paid by
ObjectShare to Seagull, and the mutual representations, warranties, covenants
and agreements contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. GRANT OF LICENSE. Subject to the terms and conditions of this
Agreement, Seagull hereby grants ObjectShare a world-wide, royalty-free,
non-transferable, limited license to (i) on a non-exclusive basis, use the
Software in perpetuity for training and consulting purposes, and (ii) on a
non-exclusive basis, (a) market and license the Software directly or indirectly
through distributors, for a period of one (1) year from the date hereof, to
third party end-users for the express purpose of building JAVA-based
applications, (b) perform in perpetuity maintenance modifications, bug-fixing,
error fixing and related support services for its then current licensees (the
"Support Services"), and (c) sub-license the Software to third parties for the
express purpose of providing Support Services on behalf of ObjectShare. Such
grant shall not, however, include: (a) the right to receive or use any future
modifications, upgrades or enhancements of the Software developed by Seagull, or
(b) the right, either directly or indirectly, to develop, support or market
software and developer's tools for (i) integrating existing AS/400 and/or
mainframe applications with each other and with new code and component objects,
(ii) building GUI clients, (iii) wrappering existing AS/400 and/or mainframe
code into objects, or (iv) developing Enterprise JavaBeans.
Other than as expressly set forth herein, ObjectShare may not copy,
disclose, provide, or otherwise make the Software available to others in any
form whatsoever.
2. PROPRIETARY RIGHTS. Except as expressly set forth in Paragraph 1
hereof, Seagull (and/or any entities from which Seagull licenses components of
the Software, as appropriate) shall retain
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all right, title and interest in and to the Software and all proprietary rights
therein and no title to the Software, or any proprietary rights therein, is
transferred to ObjectShare. ObjectShare agrees to take all commercially
reasonable precautions to secure and protect the Software from unauthorized use
or disclosure in violation of this Agreement. ObjectShare also agrees to take
all reasonable steps necessary to ensure that all employees and consultants
having access to the Software observe and perform the obligations of ObjectShare
under this Agreement.
3. DISCLAIMER OF WARRANTIES. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A
PARTICULAR PURPOSE. SEAGULL DOES NOT WARRANT THAT THE SOFTWARE WILL MEET THE
REQUIREMENTS OF OBJECTSHARE, OR THAT THE OPERATION OF THE SOFTWARE WILL BE
UNINTERRUPTED OR ERROR-FREE.
4. EXCLUSION OF DAMAGES. IN NO EVENT WILL SEAGULL OR ITS EMPLOYEES,
AGENTS, OFFICERS, DIRECTORS OR LICENSORS BE LIABLE TO OBJECTSHARE OR ANY THIRD
PARTY CLAIMING BY OR THROUGH OBJECTSHARE FOR ANY DAMAGES WHATSOEVER (INCLUDING
WITHOUT LIMITATION DIRECT OR INDIRECT DAMAGES FOR PERSONAL INJURY, LOSS OF
BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER PECUNIARY,
INCIDENTAL OR CONSEQUENTIAL LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE
SOFTWARE, EVEN IF SEAGULL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5. INJUNCTIVE RELIEF. Because of the unique and proprietary nature of the
Software, it is understood and agreed that Seagull's remedies at law for
ObjectShare's breach of this Agreement may be inadequate and that Seagull shall,
in addition to all other remedies at law or in equity, be entitled to injunctive
relief against ObjectShare without any requirement to post bond.
6. NOTICE. Any notice to be given hereunder shall be given at the address
of the parties as set forth above, or at such other address as the parties shall
provide to the other in writing from time to time. Such notice shall be made by
personal delivery or by overnight mail by a reputable carrier and shall be
effective as of the day delivered if made by personal delivery, and the day
after being sent if sent by overnight mail.
7. GENERAL. This Agreement supersedes all prior agreements concerning the
subject matter herein and may not be amended except in writing signed by the
parties. If any provision of this Agreement is held to be invalid, such
provision shall be deemed omitted. No waiver of any breach of any provision of
this Agreement shall constitute a waiver of any prior, current or subsequent
breach of the same or any provision hereof, and no waiver shall be effective
unless made in writing and executed by an authorized representative of each
party.
8. GOVERNING LAW; ASSIGNMENT. The laws of Georgia shall govern this
Agreement, and the parties consent to venue and jurisdiction in a federal or
state court in Georgia. Neither
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this Agreement nor any of ObjectShare's rights hereunder may be assigned,
licensed, pledged or otherwise transferred either voluntarily, by operation of
law, or otherwise without the prior written consent of Seagull, which consent
shall not be unreasonably withheld or delayed, provided, however, that
ObjectShare may, without the prior consent of Seagull, transfer this Agreement
(i) to the surviving corporation in a merger or consolidation to which it is a
party or to any person that acquires all or substantially all of its capital
stock or assets, or (ii) to any person or entity to which it transfers its
business relating to the Software.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their respective duly authorized officers as of the day and year
first above written.
SEAGULL SOFTWARE SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, President
OBJECTSHARE, INC.
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, Chairman, President
and Chief Executive Officer
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