EXHIBIT 10.47
A PORTION OF EXHIBIT HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT, AND HAS BEEN FILED
SEPARATELY WITH THE COMMISSION.
SOFTWARE LICENSE AGREEMENT
This Software Licensing Agreement (the "Agreement") is made and entered
into this 12th day of August, 1997, by and between Galacticomm Technologies,
Inc., a Florida company with its principal place of business located at 0000
X.X. 00xx Xxxxxx, Xxxxx 000, Xx. Xxxxxxxxxx, XX 00000 ("Licenser"), and Boca
Research, Inc., a Florida corporation, whose principal place of business is
located at 0000 Xxxxx Xxxxx Xxxx, Xxxx Xxxxx XX 00000 ("Licensee").
W I T N E S S E T H:
WHEREAS, Licenser has developed the proprietary software products
described in Exhibit A and commonly known as Licenser's Webcast (the
"Software"); and
WHEREAS, Licensee desires to acquire certain rights to the Software so
that Licensee may sub-license the Software to end-users for use in combination
with Licenser's Product Line; and
WHEREAS, Licenser agrees to grant the licenses contained herein in
consideration for Licensee's payment of royalties to Licenser based on Exhibit A
for sub-licenses of the Software with additional specifications in Exhibit C.
NOW THEREFORE, in consideration of the premises and the mutual promises
and covenants contained herein, the parties agree to the foregoing and as
follows:
1. GRANT OF LICENSE
1.1. Subject to the terms and conditions of this Agreement, Licenser
hereby grants to Licensee, and Licensee accepts, for the term of this Agreement
a limited, world-wide, non-exclusive, right and license to (a) use, copy,
distribute and sub-license the Software in object code form configured solely
for use in combination with Product, and (b) use the Software in combination
with Product to maintain, market, display, perform, distribute and license
Product. Any sub-license granted pursuant to this Agreement may be no longer in
term nor any less restrictive in scope than any corresponding Product license
granted to such sub-license.
1.2. Nothing herein shall be read to provide or permit Licensee access
to source code for the Software at any time or for any reason. Licensee shall
not modify the Software or decompile, disassemble or otherwise reverse engineer
the Software or any part thereof and/or endeavor to recreate the Source Code
from other information made available under this Agreement. Any sub-licenses
granted pursuant to this Agreement shall include the restrictions contained in
this Exhibit A.
1.3 Licensed Software Support, Testing and Server Support. Licenser
shall (a) provide support and assistance to Licensee's staff in developing
familiarity with the Licensed Software, (b) cooperate with Licensee in
developing manufacturing and testing plans and processes with respect to the
Licensed Software, (c) maintain the necessary hardware, software and personnel
to maintain an independent Listing Server. Licenser agrees to make every
reasonable mean to
immediately correct any malfunctions or downtime for this server and build a
backup plan in conjunction with the Licensee in case of a total Listing Server
shutdown or if the Licensee needs to move the Server Listing to a third party
site. Licenser also agrees to provide statistical data on the Listing Server to
determine growth, expansion and a hand-off point for the Listing Server. If the
Listing Server goes beyond 10,000 users with current equipment see Exhibit C,
then both parties agree to re-negotiate the Listing Server hosting agreement and
placement.
2. FEES AND PAYMENTS
2.1. Licensee shall pay to Licenser the royalties and fees set forth on
Exhibit A for each sub-license of the Software granted by Licensee to pursuant
to this Agreement. Royalties shall be remitted to Licenser thirty (30) days
after Licensee's grant of such sub-license for all product shipped with in that
30 day period. Other fees shall be remitted to Licenser as set forth on Exhibit
A, by the end of the first week of every month, for the previous month's
shipments.
2.2. Each party shall bear all of its respective costs and expenses
incurred by each in connection with each party's obligations under this
Agreement
2.3. At Licenser's request, at any time during this Agreement but no
more than twice per year, Licensee will permit an independent firm of
accountants and auditors selected by Licenser to audit the books and records of
Licensee and/or any distributors of Product to verify that Licensee has paid
Licenser the proper amount of fees and royalties pursuant to Exhibit A. Licenser
shall bear the costs associated with such an audit; provided, however, that if
such an audit reveals an underpayment of royalties to Licenser in an amount
greater than 5% of the amount due to Licenser, Licensee shall bear all costs
and expenses associated with such an audit and shall pay Licenser an amount
equal to one hundred and fifty (150%) of the total underpayment thus revealed.
3. IMPROVEMENTS
Except as otherwise provided in this Agreement, Licenser shall have the
exclusive right to create or develop any improvement, customization,
enhancement, extension, alteration, modification, upgrade or derivative work;
(collectively, an "Improvement") of the Software. Any such Improvements may be
made a part of the Software and subject to the terms of this Agreement upon
mutual agreement of the parties including any additional fees, royalties, or
restrictions applicable thereto.
4. CONFIDENTIALITY; OWNERSHIP
4.1. "Confidential Information" means the Software, specifications and
any other information and material marked by either party as confidential that
is delivered or disclosed by the disclosing party or, if such additional
information and material are orally disclosed, are described by written
memorandum that designates them as confidential and is delivered within thirty
(30) days of the oral disclosure. Notwithstanding the foregoing, Confidential
Information
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but in no event less than a reasonable level of care. The parties shall be
permitted to disclose to the appropriate authorities information that is
required to be disclosed pursuant to a court order or other due process of law
as a matter of public record; provided, however, the disclosing party shall be
provided the opportunity to contest such court order prior to the Confidential
Information being disclosed to such court order.
4.3. Except as otherwise provided herein, no title to ownership of the
Software in any form or any of its parts is hereby transferred to Licensee and
Licensee's rights shall at all times be subject to Licenser's world-wide
intellectual property rights, the world-wide intellectual property rights of any
third parties licensing technology to Licenser, and the restrictions set forth
in this Agreement.
4.4. Except as otherwise provided in this Agreement, upon termination
of this Agreement, Licensee shall promptly return to Licenser all materials that
were delivered to Licensee by Licenser hereunder including all Confidential
Information, and any copies thereof. Licensee will cause an officer to certify
to Licenser in writing that Licensee has complied with this section. Likewise,
upon termination of this Agreement, Licenser shall promptly return to Licensee
all of Licensee's Confidential Information and any copies thereof, and will
cause an officer to certify to Licensee in writing that Licenser has complied
with this section.
5. PROPRIETARY RIGHTS
5.1. "Trademarks" shall mean the trade name "Licenser" and any other
trade name, trademark or service xxxx owned by or licensed by Licenser for use
on or with the Software regardless of whether or not such marks are registered
with the U.S. Patent and Trademark Office or any other domestic or foreign
registrar of trademarks. "Copyrights" shall mean any of the copyrights owned by
or licensed to Licenser for use on, in, or with the Software regardless of
whether or not such copyrights are registered with the U.S. Register of
Copyrights or any other domestic or foreign registrar of copyrights.
"Proprietary Rights" shall mean the Trademarks, Copyrights, and all trade
secrets and other proprietary rights of Licenser, collectively.
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Software to become inoperable or otherwise incapable of being used in the full
manner for which it was designed and created (a "Software Limitation").
Additionally, there is no Software Limitation that would be triggered by: (a)
the Software being used or copied a certain number of times, or after the lapse
of a certain period of time; or (b) the occurrence or lapse of any similar
triggering factor or event. Licenser further agrees that it shall correct any
Software Limitation promptly upon its discovery and at no cost to Licensee. The
Software delivered by Licenser will be free from physical defects in the media
that tangibly embodies such copy. Licenser shall replace any copy of the
Software provided by Licenser that fails to comply with this warranty at
Licenser's expense.
6.3. Except as otherwise set forth above, the Software is provided "AS
IS" and Licenser does not warrant that: (a) the Software will meet the needs of
Licensee or its Licensees,
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(b) the Software will be error-free; or (c) the Software will function properly
on all hardware, operating systems, or software platforms.
6.4. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT,
Licenser DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND
SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
6.5. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS
ESSENTIAL PURPOSE, IN NO EVENT SHALL LICENSER BE LIABLE TO LICENSEE, ANY
LICENSEE OR SUB LICENSEE, OR ANY OTHER THIRD PARTY FOR ANY LOST DATA, LOST
PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, DOWNTIME, CONSEQUENTIAL,
EXEMPLARY, INDIRECT, PUNITIVE, INCIDENTAL, COVER, OR SPECIAL DAMAGES OR COSTS
(INCLUDING ATTORNEYS' FEES) OR LOSS OF GOODWILL RESULTING FROM ANY CLAIM
(INCLUDING BUT NOT LIMITED TO ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT,
NEGLIGENCE, STRICT LIABILITY, OR PRODUCTS LIABLITY) REGARDING THIS AGREEMENT OR
RESULTING FROM OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SOFTWARE
OR ANY PRODUCT OF LICENSEE INCORPORATING ALL OR ANY PORTION OF THE SOFTWARE,
EVEN IF LICENSER HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. IN NO EVENT
SHALL THE TOTAL LIABILITY OF LICENSER UNDER THIS AGREEMENT FOR ALL CAUSES OF
ACTION (EXCEPT COPYRIGHT, PATENT AND TRADEMARK INFRINGEMENTS) ON A CUMULATIVE
BASIS EXCEED THE LESSER OF $50,000.00 OR THE FEES PAID TO LICENSER UNDER THIS
AGREEMENT. Licensee acknowledges and agrees that the fees charged by Licenser in
this Agreement reflect the allocation of risks, including, without limitation,
the foregoing limitation of damages and the limited warranty set forth in this
section. A modification of the allocation of risks set forth in this Agreement
would affect the fees charged by Licenser, and in consideration of such fees,
Licensee agrees to such allocation of risks.
7. MARKETING AND PROMOTION OBLIGATIONS
Licensee shall, on all Products that includes the Software, be
co-branded using the Licenser name and logo in a prominent position on all
product, packaging, promotional and advertising materials for Products that
include the Software other than products shipped to OEMs, unless otherwise
approved by OEM. Licenser shall also be accorded credit: (a) if there is an
initial "splash" screen, on such "splash" screen in second position to Licensee;
and (b) in an "About Box" in Product. For purposes of this section, "second
position" for Licenser means that Licensee's logo may be larger than Licenser's
logo.
8. INDEMNIFICATION
8.1. Licenser agrees to defend, indemnify, and hold Licensee, its
Licensees, sub Licensees, officers, directors, employees and agents harmless
from any loss, cost, expense,
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(c) Licensee modify the Software to render it non-infringing, while remaining
like capability.
8.2 Licensee agrees to defend, indemnify, and hold Licenser, its
officers, directors, employees and agents harmless from any loss, cost, expense,
damage, or liability (including reasonable attorneys' fees), arising out of: (a)
any claim that Product infringes or violates any third party's trademark,
patent, copyright, trade secret or other proprietary rights; or (b) the use by
Licensee, its Licensees or sub-Licensees of the Software or information or data
retrieved from or produced by the Software. Licenser shall promptly notify
Licensee in writing of such action and give Licensee authority, information, and
assistance for the defense of such suit or proceeding.
9. TERMINATION
9.1. The term of this Agreement shall be one (1) year from the date set
forth above and shall be automatically renewed for subsequent one (1) year
periods. After the initial period either party may terminate this agreement upon
one hundred and eighty (180) days written notice to the other party.
9.2. Licenser shall have the right to terminate this Agreement
immediately upon written notice to Licensee if: (a) commits a material breach or
default with respect to any of its duties and obligations under this Agreement
and such default has not been cured within (30) days after delivery to Licensee
of notice thereof; (b) ceases to do business as a going concern, makes an
assignment of its assets for the benefit of its creditors, is unable or admits
in writing its inability to pay its debts as they become due, or becomes
insolvent, suspends or abandons its business; (c) authorizes, applies for or
consents to the appointment of a trustee or receiver of all or a substantial
part of its assets; (d) files a voluntary petition under any bankruptcy or
insolvency law or files a voluntary petition under the reorganization provisions
of the laws of the United States; or (e) a court assumes jurisdiction over
Licensee's assets.
9.3. Licensee may, at its sole option, terminate this Agreement
immediately upon written notice to Licenser if: (a) Licenser commits a breach or
default with respect to any of its duties and obligations under this Agreement
and such default has not been cured within thirty days after delivery to
Licenser of notice thereof; (b) Licenser ceases to do business as a going
concern, makes an assignment of its assets for the benefit of its creditors, is
unable or admits in writing its inability to pay its debts as they become due,
or becomes insolvent, suspends or abandons its business; (c) Licenser
authorizes, applies for or consents to the appointment of a trustee or receiver
of all or a substantial part of its assets; (d) Licenser files a voluntary
petition under any bankruptcy or insolvency law or files a voluntary petition
under the reorganization
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10.4. Any notice or communication required or permitted under this
Agreement shall be in writing and deemed received by a party when personally
delivered to it or, if addressed to the party at the address of such party
specified herein or at such other address as specified by such party in a notice
delivered to the other party in accordance with this Section: When sent by fax
with proof of receipt; when received by overnight courier service (provided it
shall be deemed
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received no more than two (2) business days after delivery to such courier's
drop-off site); or when received by certified or registered mail (provided it
shall be deemed received no more than five (5) business days after posting).
10.5. Every provision of this Agreement is intended to be severable; if
any term or provision is determined to be illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity of the
remainder of this Agreement. Without limiting the generality of the preceding
sentence, if any remedy set forth in this Agreement is determined to have failed
its essential purpose, then all other provisions of this Agreement, including
without limitation the limitation of liability and exclusion of damages, shall
remain in full force and effect. The titles of sections are for convenience of
reference only.
IN WITNESS WHEREOF, the parties, by their duly authorized
representatives, have executed this Agreement as of the date first written
above.
LICENSER: LICENSEE:
GALACTICOMM TECHNOLOGIES, INC. BOCA RESEARCH, INC.
/s/ XXXXXXX XXXXXXX /s/ XXXXXXXXXX X. XXXXXX
-------------------------------- -----------------------------------
By: Xxxxxxx Xxxxxxx By:
Title: President Title: Director of Purchasing
& Product Marketing
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EXHIBIT A
ROYALTY PER UNIT - DISTRIBUTION SCHEDULE
Boca Research Boca Research Boca Research Boca Research Boca Research
33.6K Modems 56K Modems Camera Kits Cameras Capture Cards
Volume 35,000 per month 18,000 per month 1,250 per month 2,500 per month 1,250 per month
Licensed * WSC WSC WPER & WSC WPER & WSC WPER & WSC
Exclusivity YES WSC/1 YR YES WSC/1 YR YES WSC/1 YR YES WSC/1 YR YES WSC/1 YR
Royalty (*)
at 75-100% ***** ***** ***** ***** *****
Volume
Volume
Scale
0-95% ***** ***** ***** ***** *****
06-50% ***** ***** ***** ***** *****
51 -74% ***** ***** ***** ***** *****
On all sales of the full version of Webcast Personal, Galacticomm Technologies
will receive a $***** per unit license fee. The list server for all Webcast
products shall be provided and hosted exclusively by Galacticomm Technologies,
Inc. Royalty Schedule will be reviewed quarterly to address current market
conditions.
Licenser will have the right to revoke exclusivity or re-negotiate this
Agreement if Licensee pays royalties of less then $100,000 per quarter or if
royalties are less then $120,000.00 for two (2) consecutive quarters.
* See Exhibit B
*****Confidential Portion. This portion of the exhibit has been omitted pursuant
to a request for confidential treatment, and has been filed separately with the
Commission.
PRODUCT DEFINITIONS
EXHIBIT B
CODE
WEBCAST SCREEN CAPTURE No Camera needed to capture images or any part of the desktop and WSC
display live on an html page.
WEBCAST PERSONAL Broadcast streaming Live Audio and video to 4 viewers. WPER
WEBCAST PROSERVER NT Server and Broadcast Machine needed for up to 250 viewers. WPRO
Supports Live Camera's and Capturing of desktop images for one broadcaster.
WEBCAST PROSERVER ADD-ONS Additional 5 broadcasters allowed on ProServer. WPRA
LITE A 30 Day demo of the full product LITE
RETAIL A package of the full product RETL
EXHIBIT C
SPECIAL MODIFICATION REQUIREMENTS
1. Licensee will be allowed to rename the product for its use as long as
Licenser is still listed as the copyright holder and developer with
appropriate co-branding as described in section 7 of this agreement.
2. Licenser will setup, maintain and host a new Listing Server provided by
Licensee for the Licenser products sold by Licensee. This new Listing
Server will only mention Licensee as the seller of Licenser's products. The
looks of this site will be designed by Licensee and implemented by
Licenser.
3. The Listing Server consists of a Pentium Pro 200-Class Machine with 128
Megs of Ram, a 2 Gigabyte hard drive and network card. For software, we
require Windows NT Server 4.0 and IIS. The estimate cost to Licensee for
the Listing Server hardware and software is $ 2,800.00.
4. Licenser agrees to enhance the Software product by adding a log file of
viewers for the broadcaster to view at any time which viewers came to the
site. This enhancement is estimated at a development cost of $1,000.00 and
will be paid for by Licensee.
S. Licenser agrees to also enhance the Listing Server for licensee to report
hits of total viewers to the participating broadcasters at an estimated
development cost of $750.00 to be paid for by Licensee.
6. All other cosmetic and functional changes to the Software contracted by
Licensee will be billed on an hourly rate of $100.00 per hour once approved
by Licenser.
