EXHIBIT 10.27
SOFTWARE LICENSE AGREEMENT
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Informix Software, Inc. ("Informix"), and the person or entity listed in
the signature block below ("Licensees") hereby agree that, after execution of
this agreement (this "Agreement") by Licensee and acceptance by Informix, the
terms and conditions of the following sections A through G and those of any
Informix Schedules shall apply to the use of the Products. All capitalized terms
used herein and not otherwise defined are defined in section G.
A. LICENSEE'S RIGHTS, REPRESENTATIONS AND OBLIGATIONS. 1. Informix hereby
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grants and Licensee hereby accepts the nonexclusive, nontransferable, royalty
bearing right and license within the United States ("Territory"), in accordance
with the User Documentation and this Agreement and only in conjunction with the
Computer System(s), to:
(a) use the Products for internal business purposes;
(b) copy object code of a Product into any computer readable form for back-up
purposes in support of Licensee's use of the Products;
(c) distribute the Products to Affiliate who have agreed to be bound by
provisions substantially similar to those contained in this Agreement for their
internal business purposes on the Computer Systems.
2. Use of the Products is restricted to the number of users, and the Computer
Systems which correspond to the machine class, if applicable, for which license
fees have been paid.
3. Except as specifically permitted by this Agreement, Licensee shall not
directly or indirectly (a) use any Confidential Information of Informix to
create any computer software program or user documentation which is
substantially similar to any Product; (b) reverse engineer, disassemble or
decompile, or otherwise attempt to derive the source code for, any Product; (c)
encumber, time-share, rent, or lease the rights granted by this Agreement; (d)
copy, manufacture, adopt, create derivative works of, translate, localize, port
or otherwise modify any Products or other Confidential Information of Informix
or grant anyone a license to engage in similar conduct. Results of any benchmark
or other performance tests run on the Products may not be disclosed to any third
party without Informix's prior written consent.
4. Licensee does not have, and shall not claim that it has, any right in or to
any of the Products or the Confidential Information received from Informix other
than as specifically granted by this Agreement. Licensee shall promptly notify
Informix of any actual or suspected unauthorized use of the Products or use or
disclosure of the Confidential Information received from Informix, and shall
provide reasonable assistance to Informix (at Informix's expense) in the
investigation and prosecution of such unauthorized use or disclosure.
5. Licensee shall comply with the Export Laws, Licensee hereby assures
Informix that it will not export or re-export directly or indirectly (including
via remote access) any part of the Product(s) or any Confidential Information to
any country for which a validated license is required under the Export Laws
without first obtaining a validated license. If at any time Informix determines
that the laws of any country in the Territory are or become insufficient to
protect Informix's intellectual or proprietary rights in the Products, both
parties will in good faith work with each other to protect Informix's
intellectual or proprietary rights in that country.
6. Products acquired with United States Federal Government funds or intended
for use within or for any United States federal agency are provided with
"Restricted Rights" as defined in DFARS 252.227-7013(c)(1)(ii) or FAR 52.227-19.
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The following Schedules which are attached hereto, are initialed by Licensee
and made a part of this Agreement by this reference
Informix Schedule for
Product Licensing
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LICENSEE: LICENSEE ACCEPTANCE:
/s/ ▇▇▇▇ ▇▇▇▇▇▇
GEOCITIES ----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Signature
ATTN: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
PHONE: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------
Printed Name and Title
6/30/98
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Date
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INFORMIX: LICENSEE ACCEPTANCE:
/s/ ▇▇▇▇ ▇▇▇▇▇
INFORMIX SOFTWARE, INC. ----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: GENERAL COUNSEL ▇▇▇▇ ▇▇▇▇▇, Vice President,
PHONE: (▇▇▇) ▇▇▇-▇▇▇▇ Legal General Counsel and
Secretary
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Printed Name and Title
6/30/98
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Effective Date
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B. CONFIDENTIALITY. 1. Except for the specific rights granted by this
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Agreement, neither party shall use or disclose any Confidential Information of
the other party. A party receiving Confidential Information from the other
shall use the highest commercially reasonable degree of care to protect that
Confidential Information, including ensuring that its employees with access to
such Confidential Information have agreed in writing not to disclose the
confidential Information have agreed in writing not to disclose the Confidential
Information. Within 15 days of the request of the disclosing party, and in its
sole discretion, the receiving party shall either return to the disclosing party
originals and copies of any Confidential Information and all information,
records and materials developed from them by the receiving party, or destroy the
same. Either party may only disclose the general nature, but not the specific
financial terms, of this Agreement without the prior consent of the other party,
provided Informix may provide a copy of this Agreement to any financial
institution in conjunction with a receivables financing transaction if such
financial institution agrees to keep this Agreement confidential.
2. Notwithstanding the foregoing, nothing therein shall prevent a receiving
party from disclosing all or part of the Confidential Information which is
necessary to disclose pursuant to the lawful requirement of a governmental
agency or when disclosure is required by operation of law, provided, however,
that prior to any such disclosure, the receiving party shall use reasonable
efforts to (a) promptly notify the disclosing party in writing of such
requirements to disclose, and (b) cooperate fully with the disclosing party in
protecting against any such disclosure and/or obtaining a protective order.
3. Money or damages will not be an adequate remedy if this section B is
breached and therefore, either party may, in addition to any other legal or
equitable remedies, seek an injunction or similar equitable relief against such
breach.
C. LIMITED WARRANTIES AND REMEDIES. 1. Informix warrants that (a) use of
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unmodified Products, will not violate the intellectual property rights of any
third party under U.S. patent copyright trademark or trade secret law of the
United States; (b) it has full power and right to enter into this Agreement and
(c) during the first 90 days from the date Licensee receives an unmodified
Products ("Warranty Period") manufactured by Informix, the ;media for those
Products will, under normal use, be free of defects in materials and workmanship
and the Development Products will substantially conform to the User
Documentation.
2. EXCEPT FOR THESE EXPRESS LIMITED WARRANTIES, LICENSEE ACCEPTS THE PRODUCTS
"AS IS," WITH NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND,
INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. INFORMIX MAKES NO WARRANTIES REGARDING THE APPLICATION(S)
OR THE MEDIA OF THE PRODUCTS MANUFACTURED BY LICENSEE. Some jurisdictions do
not allow limitations on how long an implied warranty last, so the above
limitation may not apply to Licensee.
3. In the case of an alleged breach of sections C.1(a) or (b), Informix shall,
at its expense, indemnify, defend, save and hold harmless Licensee from and
against any claim, loss, expense or judgment (including reasonable attorney
fees) provided (a) Licensee promptly gives Informix written notice of the claim;
(b) Licensee provides all reasonable assistance at Informix's expense to defend
against the claim; and (c) Informix has the right to control the defense or
settlement of the claim provided that Informix does not enter into any
settlement or compromise that imposes any obligation or liability upon Licensee
without Licensee's prior written consent.
4. Licensee's sole remedy for Informix's breach of section C.1.(c) shall be
that during the Warranty Period, Informix shall, in its sole discretion, provide
modifications to keep the Products in substantial conformance with the User
Documentation, replace the Products, or refund the license fees paid to Informix
for the defective Products.
5. (A) EXCEPT FOR A BREACH OF SECTION A.3 OR B.1 OR WITH RESPECT TO INFORMIX'S
INDEMNITY OBLIGATION UNDER SECTION C.3, EACH PARTY'S LIABILITY TO THE OTHER OR
ANY THIRD PARTY FOR A CLAIM OF ANY KIND RELATED TO THIS AGREEMENT, ANY PRODUCT
OR ANY PRODUCT SERVICE, WHETHER FOR BREACH OF CONTRACT OR WARRANTY, STRICT
LIABILITY, NEGLIGENCE OR OTHERWISE, SHALL NOT EXCEED THE AGGREGATE OF FEES PAID
TO INFORMIX (IN THE CASE OF INFORMDO OR (IN THE CASE OF LICENSEE) PAID OR OWED
BY LICENSEE HEREUNDER FOR THE PRODUCT OR SERVICE INVOLVED IN THE CLAIM. (B)
EXCEPT FOR A BREACH OF SECTION A.3 OR B.1, IN NO EVENT CONSEQUENTIAL DAMAGES
(INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOST DATA, WORK
STOPPAGE, COMPUTER FAILURE OR MALFUNCTION), EVEN IF ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. Some jurisdictions do not allow the exclusion or limitation of
incidental or consequential damages, so the above limitation or exclusion may no
apply to Licensee. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE
TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN 1
YEAR AFTER THE EVENTS WHICH GAVE RISE TO THE CAUSE OF ACTION OCCURRED.
7. Licensee shall, at its expense, indemnify defend, save and hold harmless
Informix from any claim brought or filed by a third party against Informix
solely due to any failure by Licensee, its employees or agents to act in
accordance with the terms of this Agreement, provided (a) Informix promptly
gives Licensee written notice of the claim; (b) Informix provides all reasonable
assistance as Licensee's expense to defend against the claim; and (c) Licensee
has the right to control the defense or settlement of the claim provided that
Licensee does not enter into any settlement or compromise that imposes any
obligation or liability upon Informix without Informix's prior written consent.
D. RECORDS, AUDITS AND PAYMENTS. 1. Licensee shall maintain complete and
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accurate records indicating where each Product has been installed and the number
of users for each Product and, if applicable, the machine class ("Copy
Records"). If Licensee has been granted, manufacturing rights or Licensee's
Territory extends beyond the United States and Canada, then within 10 business
days of the end of every other month, Licensee shall deliver to Informix the
Copy Records applicable to the prior two-month period, accompanied by any
payment due to Informix relating to such Copy Records.
2. No more than once each year, at Informix's expense and with 5 days' prior
written notice, Informix may appoint an independent auditor reasonably
acceptable to Licensee, with such expense to be shared equally between Informix
and Licensee, to audit all records of Licensee relating to this Agreement during
Licensee's normal business hours. If an audit reveals that the amount which
should have been paid to Informix is 5% or more greater than the amount reported
by Licensee, Licensee shall pay the cost of the audit to Informix. Any shortfall
uncovered as a result of an audit, as well as the cost of the audit, if required
by the preceding sentence, shall be paid by Licensee to Informix within 30 days
of the date Informix notifies Licensee that an amount is due.
3. Notwithstanding section D.2 above, if Informix reasonably suspects that
Licensee has breached sections A.3., B.1. or D.1, Informix may audit Licensee's
Product related activities upon 24 hours' notice.
4. Unless otherwise specified, Licensee shall pay to Informix a license fee
for Products ("License Fee") and fees for maintenance and support services at
the price set forth in the Price List.
5. Licensee shall have the right to finance its payment obligations hereunder
through financing arranged through a financing company reasonably satisfactory
to Informix. Licensee's failure to obtain such financing, however, shall not
defer or otherwise relive Licensee of such payment obligations.
6. Licensee shall pay any amounts owed to Informix on the date specified in
and according to the terms of this Agreement and any applicable Informix
Schedule. If a due date is not specified, the related payment shall be made by
Licensee in accordance with Informix's invoice. If Informix reasonably
determines that Licensee's credit rating does not support "net-30" terms,
Licensee shall prepay all fees. Each party is solely responsible for its own
expenses incurred in the performance of this Agreement. If Licensee fails to
make any payment when due, Informix may suspend delivery of Products or services
until the past due payment is made. Any payment which falls due on a weekend or
public holiday shall be due on the business day immediately preceding the
weekend day or public holiday.
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7. If a receiver or other liquidating officer is appointed for substantially
all of the assets or business of Licensee, if Licensee makes an assignment for
the benefit of creditors. If Licensee becomes insolvent or bankrupt or the
rights or interest of Licensee under this Agreement become an asset under any
bankruptcy, insolvency or reorganization proceeding, then Licensee must prepay
all fees, and this Agreement and any Informix Schedules shall be governed by the
then current, applicable bankruptcy and insolvency laws.
8. Payments shall be in United States dollars. Any overdue amount shall bear
interest at the maximum rate allowed by law. Costs of conversion, outside
collection and related bank charges shall be paid by Licensee. Licensee shall
be responsible for all taxes, tariffs and transportation costs related to this
Agreement (including any value added or sales taxes) other than taxes on
Informix's income. All shipments by Informix shall be F.O.B. origin.
E. TERMINATION. 1. This Agreement shall be effective until terminated. This
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Agreement shall terminate: (a) for cause or for failure to pay any amount when
due, upon 30 days prior written notice by either party to the other, unless the
cause is susceptible of being and is cured within the 30 day notice period; or
(b) immediately upon written notice to Licensee in the event Licensee breaches
section A.3. The date termination becomes effective is called the "Termination
Date." Termination of this Agreement terminates all Informix Schedules.
2. (a) If this Agreement is terminated because of a breach of section A.3, all
rights granted under this Agreement will terminate. (b) If this Agreement is
terminated for any other reason, all rights granted under this Agreement will
terminate, except for Licensee's continued right to use Products for which the
license fees have been paid to Informix. Use after the Termination Date shall
be subject to those provisions of this Agreement which survive termination.
3. Subject to section E.2.(b), within 30 days of the Termination Date, all
products, related materials and Confidential Information in Licensee's
possession or control shall be returned to Informix or, upon Informix's written
request, destroyed by Licensee.
4. If Licensee's breach is the cause of termination, no additional Product
shall be provided to Licensee on account of any remaining balance of any
prepayment and such amount shall be retained by Informix.
5. Sections A.3, 4. (first sentence only), and 5.; B; C; D. (for a two (2) year
period following termination); E; and F5. and 7, will survive any termination of
this Agreement.
F. GENERAL PROVISIONS. 1. Informix and Licensee are independent contractors
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and will so represent themselves in all regard. Neither party may bind the other
in any way.
2. Licensee may not assign this Agreement without the prior written consent of
Informix, which consent will not be unreasonably withheld. Notwithstanding the
foregoing, Licensee may assign its rights under this Agreement to an acquirer of
all or substantially all of its stock, assets or business or by operation of law
resulting from a reincorporation of Licensee without Informix's consent provided
such entity agrees in writing to be bound by the provisions of this Agreement
and further provided that such entity is not a direct competitor of Informix.
Any purported assignment in contravention of this section is null and void. A
transfer of a controlling interest in the equity of Licensee shall be deemed an
assignment for purposes of this subsection. Subject to the foregoing, this
Agreement will bind and inure to the benefit of any successors or assign.
3. Neither party will be responsible for failure of performance, other than for
an obligation to pay money, due to causes beyond its control, including, without
limitation, acts of God or nature; labor disputes; sovereign acts of any
federal, state or foreign government or shortage of materials.
4. Notices will be delivered to a party's address stated in the signature block
of this Agreement, or to another address which a party properly notified the
other that notices should be sent.
5. This Agreement is the complete and exclusive statement of the parties to
this Agreement on these subjects, and supersedes all prior written or oral
proposals and understandings relating thereto, including the End User Agreement
enclosed with the "shrink-wrap" version of a Product This Agreement may only be
modified by a writing signed by an officer of Informix and an authorized
representative of Licensee. This Agreement takes precedence over any purchase
order issued by Licensee, which is accepted by Informix for administrative
convenience only. If any court of competent jurisdiction determines that any
provision of this Agreement is invalid, the remainder of the Agreement will
continue in full force and effect. The offending provision shall be interpreted
to whatever extent possible to give effect to its stated intent.
6. Failure to require performance of any provision or waiver of a breach of a
provision does not waive a party's right to subsequently require full and proper
performance of that provision. Singular terms will be construed as plural, and
vice versa, Section headings are for convenience only and will not be considered
part of this Agreement.
7. This Agreement is governed by the laws of the State of California, without
giving effect to its conflict of law provisions. The United Nations Convention
on Contracts for the International Sale of Goods will not apply to this
Agreement. Each party submits to the jurisdiction of the appropriate state or
federal courts in California. Informix may seek to specifically enforce or
prevent a breach of any term of this Agreement in the appropriate ▇▇▇▇▇ of any
state or country in which the Products are deployed by Licensee or in which
Licensee maintains an office. The prevailing party in any suit under this
Agreement shall recover all costs, expenses and reasonable attorney fees
incurred in such action. Nothing in this Agreement will be deemed a waiver by
either party of any and all available legal or equitable remedies.
8. Informix agrees to add Licensee's name to the Informix Licensee list
respecting Informix's standard source code escrow agent, Brambles NSD, Inc. This
procedure will provide Licensee with the source code to Payment Products on
restricted basis as described below. Such copy will be placed in escrow and
updated at Informix's expense and made available to Licensee on a restricted
basis for use only in connection with Licensee's internal maintenance and
support purposes. Licensee shall obtain said source code pursuant to the terms
and conditions of the Informix Software Deposit Agreements with Brambles NSD,
Inc. as amended from time to time, and Licensee agrees to execute and return the
"Licensee of Record Acceptance" form upon receipt by Brambles NSD, Inc. Licensee
shall pay the then current applicable source code license fee for its use of the
source code.
G. DEFINITIONS. "Affiliate" means any person, corporation or other entity
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which, directly or indirectly, through one or more intermediaries, controls or
is controlled by, or is under common control with another person, corporation or
entity.
"Computer Systems" means the computer systems on which Informix has made the
Products generally commercially available.
"Confidential Information" means Informix pricing or information concerning new
Informix products, trade secrets and other property rights; and any business,
marketing or technical information disclosed by Informix or Licensee in relation
to this Agreement and identified in writing as confidential by, or proprietary
to, the disclosing party. Confidential Information does not include information
(a) already in the possession of the receiving party without an obligation of
confidentiality, (b) hereafter rightfully furnished to the receiving party by a
third party without a breach of any separate nondisclosure obligation, (c)
publicly available without breach of this Agreement (i.e., information in the
public domain), (d) furnished by the disclosing party to a third party without
restriction on subsequent disclosure, or (e) independently developed by the
receiving party without reliance on the Confidential Information.
"Development Product" means the standard proprietary Informix computer software
packages made generally commercially available by Informix within the Territory,
which include the object code form of the computer programs on magnetic media,
User Documentation and an End User Agreement.
"Effective Date" means the date reflected in the signature block of this
Agreement.
"End User" means, as appropriate, either Licensee or any third party individual,
business or governmental entity which acquires one or more copies of the
Products for personal or internal business use, and not for transfer to others.
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"End User Agreement" means the standard Informix agreement accompanying each
copy of the Products which specifies the terms and conditions by which an End
User may use the Products.
"Export Laws" means all laws, administrative regulations, and executive orders
of any applicable jurisdiction relating to the control of imports and exports of
commodities and technical data, including, without limitation, the Export
Administration. Regulations of the U.S. Department of Commerce, the
International Traffic in Arms Regulations of the U.S. Department of Commerce,
the International Traffic in Arms Regulations of the U.S. Department of State,
and the Enhanced Proliferation Control Initiative.
"Informix Schedule" means a form containing additional terms and connections of
this Agreement which is (i) attached to this Agreement or, (ii) when placed
after the Effective Date, refers to this Agreement and initialed by Licensee.
"New Product" means a release and any associated User Documentation which
Informix in its sole discretion designates as a New Product is made generally
commercially available by Informix; and is marketed by Informix as a New Product
even if it is capable of being integrated with a Product.
"Price List" means the Informix price list for the United States and Canada, in
effect at the time Licensee orders Products from Informix. The price of
Products deployed within the United States and Canada shall be as set forth in
the Price List. The price for Products deployed outside the United States and
Canada shall be 1.25 times the price set forth in the Price List.
"Product" means, as applicable, the Development Products, the Runtime Products
or all such products as Informix makes generally commercially available.
"Runtime Product" means a portion of the Development Product which is composed
of various modules and libraries made generally commercially available by
Informix within the Territory as either runtime files or files which are
included only in a linked form. Runtime Products include an End User Agreement
but do not include User Documentation.
"Schedule Effective Date: means the date reflected on the front of an Informix
Schedule.
"User" as defined in the Price List, and as of the Effective Date, means for
User-based Products, the maximum number of concurrent Users at any one instance
in time. using this definition, Informix counts a batch process or an individual
as one User. however, when an individual has multiple connections to a User-
based Product, Informix counts these connections as multiple Users. When
customers use a multiplexing front end, such as a transaction manager, to reduce
the number of direct connections to the database, Informix counts the number of
front-end connections as Users, rather than counting the smaller number of
backend connections.
"User Documentation" means the Informix user manual(s) and other written
materials on proper installation and use of, and which are normally distributed
with, the software portion of the Products.
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