EXHIBIT 10.23
AGREEMENT
This License Agreement is made and entered into this 31st day of October, 1991,
by and between Microware Systems Corporation, an Iowa Corporation with its place
of business at 0000 XX 000xx Xxxxxx, Xxx Xxxxxx, Xxxx, 00000 (called
"Microware"), and Firearms Training Systems, Inc. (called the "Licensee").
1. DEFINITIONS:
a. "Software" shall mean the component modules of the software product titled
* XX-0 Xxxxxxxxxx - XX00000/00/00
Xxxxxx Xxxxx File Manager (RBF)
as may be specified in Appendix A-1.
b. "Copy" shall mean both complete and partial editions of the Software.
c. "Distribute" shall mean the sale, lease, leased, loan, internal use, or
other distribution of Software by Licensee.
d. "Specifications" shall refer to the functional description of the Software
given in the current version of the applicable Microware User's Manual.
e. "Error" shall mean a demonstrable instance of adverse and incorrect
operation of the Software not in conformance to its Specification.
f. "Per Copy Royalty" shall be the sum of Six hundred twenty-five ($625.00)
U.S. Dollars.
g. "Advance Royalty Fee" shall be the sum of Six thousand two hundred fifty
($6,250.00) U.S. Dollars.
h. "Minimum Extension Quantity" shall refer to a minimum of two (2) Copies of
Software.
i. "The Official Address" for notices under this Agreement shall be:
Microware: Microware Systems Corporation
0000 XX 000 Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Attention: Corporate Administration
Licensee: Firearms Training Systems Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Technical Contact: Xxxx Xxxxxx
2. DISTRIBUTION LICENSE:
Microware hereby grants Licensee a worldwide non-exclusive license to Distribute
Software subject to the terms and conditions of this Agreement.
3. ROYALTIES AND PAYMENT:
a. Licensee shall pay Microware the Advance Royally Fee, which represents
Per Copy Royalties for the first 10 CPU's (Central Processing Unit(s) for which
Copies of Software will be Distributed, upon Licensee's signature of this
Agreement.
b. Licensee may extend this Agreement to Distribute Software for additional
CPU's by prepaying to Microware a Per Copy Royalty for each additional CPU for
which the Software will be Distributed. All extensions shall be in lots equal to
or greater than the Minimum Extension Quantity.
c. Licensee agrees to pay all shipping charges for materials shipped by
Microware under this Agreement, and any taxes, duties, licenses, fees, or
tariffs imposed by any state or other governmental body or agency on the
production, storage, licensing, sale, transportation, import, export or use of
the Software. Microware shall be responsible for all taxes based upon its net
income.
4. ACCEPTANCE
a. Licensee shall evaluate Software and submit a written acceptance or
rejection to Microware within sixty days after receipt of Software. Rejection
shall be based solely on non-conformance of Software to its Specification. If no
timely written rejection is given or if Licensee Distributes any Copies outside
Licensee's organization, Software shall be considered accepted for all purposes
of this Agreement.
b. If Licensee rejects Software, Microware shall have a period of sixty days
from receipt of the rejection notice to correct Software and resubmit it to
Licensee for acceptance testing under the terms and conditions set forth in
Section 4(a) above.
c. If Licensee properly rejects the resubmitted Software, Licensee may
terminate this Agreement by returning Software including all Copies made by
Licensee, and all materials shipped by Microware to Licensee under this
Agreement. Within thirty days of receipt by Microware of said Software and
materials, Microware shall provide Licensee written notification of termination
of this Agreement, and shall refund the Advance Royalty Payment. The provisions
of Section 14 of this Agreement shall apply during and after such termination.
5. DISTRIBUTION OF SOFTWARE:
a. Licensee shall Distribute Software in object form only, except for
specific files as may be specified in Appendix A-2.
b. Licensee shall only Distribute the Software configured for use with CPU's
it manufactures and markets.
c. Microware shall provide Licensee with a Microware Certification Label for
each per Copy Royalty fee paid. Licensee agrees that a Microware Certification
Label shall be affixed to each computer system or CPU that contains a Copy of
Software Distributed by Licensee.
d. All Copies of Software Distributed by Licensee shall include Microware
copyright notices on the media label and imbedded in the Software object code.
Licensee shall reproduce this copyright notices exactly as provided in the
original Software as provided by Microware, however, Microware may from time to
time reasonably specify or change their content in order to conform with any
future changes in applicable laws and regulations.
e. Microware shall provide Licensee with applicable Microware User's
Manual(s) as specified in Appendix A-3. Licensee agrees that this Agreement does
not convey or confer the right to reproduce or duplicate any Microware-supplied
documentation.
6. ACCURATE RECORDS:
a. Licensee shall keep true, accurate and consistent records containing
regular entries relating to the disposition of each Copy of Software Distributed
by Licensee. These records shall be available for examination during normal
business hours by independent accountants representing Microware, who shall be
entitled to perform an audit and to make copies and extracts, and receive any
explanations that may reasonably be requested. Microware is responsible for
payment of the accountant's fees, except that Licensee shall be responsible for
such fees in the event the examination discloses a discrepancy in Licensee's
favor of more than two percent of the payment of royalties due under this
Agreement.
b. Licensee agrees to provide Microware within 30 days after the end of each
calendar quarter, a report of the total number of Copies of Software Distributed
by Licensee during each prior quarterly period. Licensee shall commence
providing Microware such quarterly reports within 30 days following the end of
the calendar quarter in which this Agreement is signed.
7. WARRANTY:
Licensee and Microware both acknowledge that all complex software and hardware
systems (such as Software and Licensee's computer system) cannot be proven
absolutely error-free, therefore:
a. For a one-year period commencing on Licensee's receipt of Software,
Microware will make its best efforts to correct any Error(s) reported by
Licensee. Licensee shall report each Error in writing using Microware's standard
Product Discrepancy Report form and including sufficient example programs as may
be necessary to demonstrate the Error.
b. If Microware is not able to correct or provide an effective work-around
for an Error within ninety days from the date the Error was reported by
Licensee, then at Licensee's option: (i) the correction period may be extended
as may be agreed by the parties, (ii) Licensee may waive correction of the
Error, (iii) this Agreement may be terminated by Licensee if it is determined
that the Error is of such a nature as to render Software unusable. In the event
of such termination, Microware will refund to Licensee
one hundred percent of the Advance Royalty Payment, and Licensee shall
immediately cease all use and Distribution of Software.
c. In the event a reported Error may be due to a modification or improvement
made to Software by Licensee, Microware shall be responsible for correcting the
Error only if the Error can be demonstrated on the version of Software directly
supplied by Microware.
d. The rights and remedies granted to Licensee under this Section constitute
Licensee's sole and exclusive remedy against Microware, its officers, agents,
and employees for any liability or obligation arising out of or in connection
with this Agreement, the condition of Software, Microware's duties to correct
Errors or any other action, performance or omission hereunder.
e. This warranty is made directly by Microware only to Licensee and is not
applicable or transferable to sub-licensees, to purchasers of the products of
Licensee or any of their subsidiaries or to any other party.
THIS WARRANTY STATED ABOVE IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY MADE
BY MICROWARE. MICROWARE DOES NOT MAKE AND LICENSEE EXPRESSLY HEREBY WAIVES, ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED. WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED. MICROWARE SHALL HAVE NO
LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE
OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF
IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF
MICROWARE FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR
PERFORMANCE OF THE SOFTWARE.
8. NON-DISCLOSURE OF SOURCE CODE:
Microware represents and Licensee agrees that Microware's business depends on
Microware's ability to license Microware's software products and related
materials, and that disclosure of Microware source code will give rise to
irreparable injury to Microware inadequately compensable in monetary damages and
would seriously impair Microware's ability to do business. Therefore the
parties agree:
a. Licensee shall not reproduce, duplicate, copy, publish or otherwise disclose,
distribute or disseminate the Software source code, or any other materials
provided to Licensee by Microware under this License Agreement except for
internal use upon the Licensee's premises, or as authorized in writing by
Microware.
b. Licensee shall take due care to secure and protect the Software and shall
make and keep only the minimum number of copies of the Software source code as
may be required for technical or archival reasons, and will ensure that each
copy is marked with a clearly legible confidentiality notice. Licensee shall
restrict access to the Software source code and any other confidential materials
to its bona-fide full-time employees, or consultants who have signed an
appropriate nondisclosure agreement, and who have a bona-fide need for such
access.
c. Licensee may not market, license, sell, or otherwise distribute any software
derived in part or whole from the Software source code or based on techniques
revealed by Licensee's inspection of the Software source code.
d. Licensee consents to an injunction or other equitable relief if sought by
Microware from a court of competent jurisdiction against the breach of any of
the terms of this License Agreement, in addition to any other legal remedies
which may be available to Microware.
e. The Licensee's obligations under this section shall survive any termination
or expiration of this License Agreement and shall extend until the earlier of
such time as the information protected hereby is in the public domain through no
fault of the Licensee or its employees, or fifteen (15) years following
termination or expiration of this License Agreement.
9. UPDATE PERIOD:
For a one-year period commencing on the date stated at the beginning of this
Agreement, Microware shall provide Licensee with master copies of any new
releases or updated versions of the Software as may be officially released by
Microware to its commercial customers.
10. OWNERSHIP AND TRADEMARKS:
a. Licensee acknowledges that all right, title and interest in software and its
documentation shall belong solely and exclusively to Microware.
b. Licensee is authorized to reproduce applicable Microware trademarks and
service remarks in connection with the distribution, advertising, marketing, and
promotion of Licensee's products incorporating Software, provided that
appropriate trademark notices are included.
11. INDEMNIFICATIONS:
a. Microware represents that it has sufficient right, title and interest in the
Software to make this Agreement. Microware agrees to defend at its expense any
claim, suit or action against Licensee based on a claim that Microware does not
have sufficient right, title, and interest in the Software as furnished by
Microware, or that the Software infringes on any United States copyright,
patents, licenses, trade secrets or other proprietary rights, and to pay the
amount of any settlement, award, or the costs and damages finally awarded after
appeal, if any, in any such claim, suit or action, provided (1) that Microware
is notified promptly in writing of any notice of claim or of threatened or
actual suit and (2) at Microware's request and expense Microware is given
assistance for the defense of same, Microware's liability under this Section
11(a) is limited to one hundred (100) percent of the payments received by
Microware under Section 5(a). Licensee shall have the right to approve or reject
any settlement proposed by Microware which would result in a recovery exceeding
the limitation of liability of Section 12.
Following notice of a threatened or actual claim, suit or action under this
Section 11(a), Microware may, at its option, procure for Licensee the right to
continue to use the Software as furnished or to replace or modify the Software
to make it non-infringing. If Microware elects to replace or modify the
Software, such replacement or modification shall meet the specifications in the
applicable Microware User(s) Manual current as of the date of replacement or
modification. The foregoing states the entire liability of Microware with
respect to the infringement of the Software or any part thereof of any
copyrights, patents, licensee, trade secrets or other proprietary rights, and
Licensee expressly waive any such other liabilities.
b. Licensee shall indemnify and agree to hold harmless Microware from any loss,
liability or costs (including attorneys' fees) arising out of or in any way
connected to claims from all other parties, including subsidiaries, sublicensees
and purchasers of Licensee's products, relating to any claims, suits or actions
relating to the Software or any parts thereof, except as provided in Section
11(a) above.
12. LIMITATION OF LIABILITY:
Microware's liability to Licensee under any provision of this Agreement shall be
limited to the amount actually paid by Licensee to Microware under this
Agreement. Microware's limitation of liability is cumulative with all Licensee
payments to Microware being aggregated to determine satisfaction of the limit.
The existence of more than one claim or suit will not enlarge or extend the
limit. Licensee releases Microware from all obligations, liabilities, claims, or
demands in excess of the limitation. The parties acknowledge the other parts of
this Agreement rely upon inclusion of this Section herein.
13. ASSIGNMENT AND SUBLICENSES:
a. This agreement shall not be assigned in whole or part by either party to
any other party (including subsidiaries, affiliates, and corporate parent(s)
except (i) with the prior written approval of the other party, or to (ii) any
corporate successor, or (iii) purchaser of substantially all of the assets of
the party's computer products business. The assigning party shall give ten days
advance written notice of a proposed assignment to the other party. In the
event of any assignment by Licensee, the assignee shall agree in writing to
abide by the conditions of this Agreement and to any other terms that Microware
may reasonably request.
b. Licensee shall not sublicense any of its rights under this Agreement to
any other person or entity except as specifically authorized in writing by
Microware.
14. TERM AND TERMINATION OF AGREEMENT:
a. This Agreement shall be effective from the date stated at the beginning
of this Agreement until its termination in accordance with the terms of this
Agreement or ten years from the stated date of this Agreement, whichever is
earlier.
b. Microware may terminate this Agreement by giving notice to Licensee: (i)
if Licensee fails to perform or comply with this Agreement or any provision
thereof, or (ii) if Licensee is the subject of a voluntary or involuntary
petition under any Bankruptcy Act. Termination for Licensee's breach of Section
8 shall be effective as of the day notice is given; otherwise termination shall
be effective thirty days following Microware's giving of notice if the
occurrence giving rise to the right of termination has not been cured.
c. If Microware is the subject of a voluntary or involuntary petition under
any Bankruptcy Act, this Agreement shall survive and Licensee's rights hereunder
shall continue.
d. If this Agreement is terminated, Licensee shall return all full or
partial copies of Software and any other material furnished by Microware to
Licensee within ten days following the termination date, including any in-house
copies Licensee may have produced. At the termination of this Agreement
Licensee will be deemed to have and conveyed back to Microware all rights in and
to Software. Termination under this provision shall not relieve Licensee of the
obligations it has under this Agreement. From and after termination Licensee
will not use internally or employ Software and related materials delivered to
Microware to Licensee as part of any product which Licensee may Distribute.
e. Termination by Licensee not due to Microware's default, or by Microware
as a result of Licensee's default shall result in forfeiture of all sums paid by
Licensee under this Agreement including all prepaid royalties. The rights and
remedies of Microware provided in this section shall not be exclusive and are in
addition to any other rights and remedies provided by law or this Agreement.
15. NOTICES AND REQUESTS:
All notices, requests and reports in connection with this Agreement shall be
deemed given as of the day they are deposited in the local postal system,
postage prepaid, certified or registered, return receipt requested, or
transmitted via confirmable telefacsimile or telex, and addressed to the other
party's Official Address.
16. CONTROLLING LAW AND CONTROVERSIES:
This Agreement shall be construed and controlled by the laws of the United
States of America and of the State of Iowa. The parties agree that any
controversy arising under this Agreement shall be submitted to the courts
located in Polk County, Iowa, USA, and Licensee consents to the jurisdiction and
venue of such courts for such controversies. If either party employs attorneys
to enforce any rights arising out of or related to this Agreement, the party
prevailing shall be entitled to recover reasonable attorney's fees from the
other party.
17. MODIFICATION, SEVERABILITY, WAIVER, FORCE MAJEURE:
a. This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and merges all prior and contemporaneous
communications. It shall not be modified except by a written agreement dated and
signed on behalf of Microware and Licensee by their respective duly authorized
representatives.
If any provision of this Agreement shall be found to be invalid or unenforceable
for any reason, the remaining provisions nevertheless shall remain in full force
and effect.
c. Any waiver on the part of any parties hereto shall not imply the waiver
of any other right or interest of such party, or any subsequent waiver.
d. Except for failure to pay sums required under this Agreement, the parties
hereto shall not be responsible for any failure or delay in the performance of
any obligations hereunder caused by acts of God of the public enemy, flood,
fire, natural disaster, war or preclusive acts of any governmental authority.
18. EXPORT AND USE RESTRICTIONS:
Microware Software is licensed with the express understanding that Licensee will
not reexport -- directly or indirectly -- such Software, or the direct product
of such Software, unless the Export Administration Regulations of the U.S.
Department of Commerce explicitly permit such reexport, or the Office of Export
Licensing of the U.S. Department of Commerce first grants authorization in
writing.
The obligations mentioned above, which survive the term of this Agreement, cover
reexports to any of the following countries: The People's Republic of China,
Afghanistan, or those countries described as Country Groups Q, S, W, Y or Z in
the U.S. Export Administration Regulations. These Country Groups, at the present
time, consist of the following countries: Albania, Bulgaria, Cambodia, Cuba,
Czechoslovakia, Estonia, Hungary, Laos, Latvia, Libya, Lithuania, Mongolian
People's Republic, North Korea, Poland, Romania, The Union of Soviet Socialist
Republics, and Vietnam.
19. BINDING EFFECT:
Subject to the limitations hereinbefore expressed, this Agreement will inure to
the benefit of and shall be binding upon the parties, their successors,
administrators, heirs, and assigns.
IN WITNESS HEREOF, the parties have hereunto set their hands and seals as of the
date stated at the beginning of this Agreement. All signed copies of this
Agreement shall be deemed originals.
For Microware:
Name: /s/ Xxxxxxx X. Xxxx
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Title: V.P. MKTG.
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For Licensee: Firearms Training Systems
Name: /s/ Xxxx Xxxxx
--------------
Title: Director of Finance
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APPENDIX B is attached hereto and incorporated herein.
Microware Initials /s/ CB
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Licensee Initials /s/ GM
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APPENDIX A
Industrial XX-0
X-0 Specification of Product
Kernel, Syscache, Init and Sysgo
Sequential Character File Manager, sample drivers and descriptors
Pipe File Manager, sample drivers and descriptors
Math and CIO libraries
Utility commands: Break, Date, Deiniz, Devs, Dump, Echo, Events, Exbin, Help,
Ident, Irqo, Link, Mdir, Mfree, printenv, Procs, Setime, Shell, Sleep, Tmode,
Unlink and Xmode.
"Math881" and CIO020" modules are additionally included with Industrial XX-
0/00000 and OS-9/68030. The "Maps" utility and "SSM851" are additionally
included with Industrial OS-9/88030.
A-2 Source Code Files Authorized For Distribution
Init, Sysgo and Syscache
High level device drivers modified for use with Licensee's computer system and
not containing "bootstrap" routine
Device descriptors
System macro files (MACROS)
System definition files (DEFS)
Library files (LIB)
Any related defsfiles and makefiles
A-3 Software User Documentation
Microware shall provide Licensee with one copy of the applicable Microware
User's Manuals for its internal use.
Microware Initials /s/ CB
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Licensee Initials /s/ GM
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APPENDIX A
Random Block File Manager
A-1 Specification of Product
Random Block File Manager, sample drivers and descriptors
Utility commands:
Atir Backup Binex Build Cfp Cmp Code
Compress Copy Count Dcheck Deal Deldir Dir
Diskcache Dsave Edt Expand Fixmod Format Free
Freelore Fsave Grep List Load Login Makdir
Make Merge Moded 089gen Pd Pr Qsert
Rename Rainsplit Save Tee Touch Tr Tamon
Uname
A-2 Source Code Files Authorized For Distribution
High level device drivers modified for use with Licensee's computer system and
not containing "bootstrap" routines
Device descriptors
System macro files (MACROS)
System definition files (DEFS)
Library files (LIB)
Any related diskfiles and makefiles
A-3 Software User Documentation
Microware shall provide Licensee with one copy of the applicable Microware
User's Manuals for its internal use.
Microware Initials /s/ CB
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Licensee Initials /s/ GM
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APPENDIX B
1. On or before December 19, 1991, Licensee may, at its option, modify and
upgrade this agreement as is stated below by paying Microware the sum of six
thousand two hundred and fifty ($6,250) U.S. Dollars and providing Microware
with two Licensee-Initialed copies of this Appendix.
Section 1(f) shall be changed from "six-hundred twenty-five ($625)
to "one hundred twenty-five ($125).
Section 1(g) shall be changed from "six thousand two hundred fifty
($6,250) to "twelve thousand five hundred ($12,500)".
Section 1(h) shall be changed from "two (2)" to "ten (10)".
Section 3(a) shall be changed from "10" to "100".
2. Upon receipt of such payment and notification, Microware shall provide
Licensee with ninety additional Certification Labels and One Microware
Initialed copy of the Licensee-supplied Appendix.
Microware Initials /s/ CB
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Licensee Initials _______
