EXHIBIT 10.11
[LOGO] SOFTWARE LICENSE AGREEMENT
This Software License Agreement ("Agreement") is made effective as of ,
1999 ("Effective Date") between:
Quadrant International, Inc. ("QI") and ("Licensee")
As of the Effective Date, QI and the Licensee agree as follows:
1. DEFINITIONS. For the purposes of this Agreement,
(a) "QI Software" means QI's software DVD player, as more fully defined in
Schedule A, and subsequent versions thereof.
(b) "License Fee" means the amount of amounts referred to in Section 4 and set
out in Schedule A and payable by Licensee to QI under the terms of this
Agreement.
(c) "Territory" means the geographic area set out in Schedule A.
2. LICENSE. Subject to the terms and conditions of this Agreement, QI grants
to Licensee within the Territory the personal, non-exclusive, non-transferable
limited license and right, for the term of this Agreement, to reproduce the QI
Software and the right to sublicense and distribute to end users who purchase or
have purchased computer systems from Licensee copies of the QI Software,
pursuant to the End User License Agreement, or a substantially similar form, as
set out in Schedule B, to be used in conjunction with Licensee's products.
Nothing herein gives Licensee the right to distribute, or to authorize any other
entity to distribute, the QI Software as a stand-alone product.
3. TERM. Unless sooner terminated pursuant to Section 15 below, this
Agreement shall be effective for a period of one (1) year beginning on the
Effective Date, and shall continue thereafter from year to year until either
party notifies the other party in writing at least ninety (90) days prior to an
anniversary of the Effective Date of its intention not to renew as of such
anniversary date.
4. LICENSE FEES - QI SOFTWARE. A License Fee for each and every copy of QI
Software is payable on a "Per Copy" basis as provided in the attached Schedule
A. Licensee agrees to pay the applicable License Fee to QI when due. Licensee
further acknowledges and agrees that all payments pursuant to this Agreement
will be made by Licensee in U.S. dollars. The Per Copy payment method requires
Licensee to pay a License Fee on a monthly basis to QI for each and every copy
of the QI Software reproduced by Licensee, or provided to Licensee by QI, during
a month and which is sold, shipped, or otherwise distributed by Licensee.
Within fifteen (15) days following the end of each month, Licensee will provide
QI with a report detailing the numbers of copies reproduced or received by
Licensee and payment for the copies specified on the report. QI represents and
Licensee acknowledges that DOLBY license fees shall be in addition to the
Licensee Fees and shall be in the amount set out on Schedule A. QI further
represents and Licensee acknowledges that any license fees assessed during the
term of this agreement by DVD Forum, MPEG LA, CSS or other third parties shall
be in addition to the Licensee Fees as set forth in Schedule A.
5. PAYMENT TERMS. All License Fees and other amounts payable under this
Agreement shall be paid by Licensee to QI promptly when due and without any set-
off or deduction. Any late payments by Licensee shall be subject to added
interest at a rate of 1 1/2 percent per month that such payments are late.
6. AUDIT. During the term of this Agreement, Licensee agrees to keep all
usual and proper records and books of account an all usual and proper entries
relating to each and every copy of the QI Software sold, shipped or otherwise
distributed to a customer. In order to verify statements issued by Licensee and
Licensee's compliance with the terms of this Agreement, QI shall have the right
to: (i) audit the financial records of Licensee so as to verify the applicable
license fee; and (ii) inspect Licensee's facilities and procedures. The cost of
this audit shall be the responsibility of QI unless the audit shows an amount
owing to QI of at least five percent (5%) in addition to the amount paid by
Licensee, in which event Licensee shall be responsible for the costs of such
audit. In no event shall audits be more frequently than semi-annually unless the
immediately preceding audit disclosed a discrepancy.
7. TAXES. All fees and all other charges specified in this Agreement are
exclusive of all applicable goods and services taxes, provincial sales taxes and
any other taxes, including sales or use taxes (collectively called the "Purchase
Taxes"). Licensee shall pay all Purchase Taxes (other than taxes on QI's net
income), howsoever designated or levied, as a result of the transactions
contemplated by this Agreement.
8. OWNERSHIP. The QI Software is licensed, not sold, to Licensee only under
the terms of this Agreement. All right, title and interest in and to the QI
Software shall at all times remain with QI and its licensors and suppliers,
including any and all copyrights, patents, trade secrets, trademarks and other
intellectual property and proprietary rights to the QI Software.
9. TRADEMARKS AND TRADENAMES. Licensee shall not remove, alter or obscure any
QI trademark, logo or similar identifying xxxx on the QI Software. Licensee
recognizes QI's ownership and title to the trademark "QI", all other trademarks
and trade names of QI and the goodwill attaching thereto. If QI, in its sole
discretion, determines that any of Licensee's advertising, promotional or other
materials are inaccurate or misleading with respect to QI or the QI Software or
are inaccurate or misleading with respect to, or otherwise misuse, QI trademarks
or trade names, Licensee will, upon notice from QI, promptly change or correct
such materials at its own expense.
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[LOGO] SOFTWARE LICENSE AGREEMENT
10. PRODUCT SUPPORT. QI shall be responsible for providing reasonable
maintenance and support to Licensee for QI Software consistent with QI's then
current customer and product support policies. Licensee agrees that Licensee is
solely responsible for any and all support to be provided to end users for QI
software.
11. RESTRICTIONS.
(a) QI represents and Licensee acknowledges that the QI Software contains
proprietary and confidential information of QI and constitutes trade secrets of
QI (collectively referred to as "Confidential Information") and are protected by
copyright, patent, and or trade secret laws and international treaties.
Licensee acknowledges the proprietary rights of QI in and to the QI Software and
Licensee agrees not to decompile, reverse engineer or otherwise determine the
operation of the products or permit any third party to do so.
(b) Licensee agrees to implement and support a mutually agreed upon Copy
Protection mechanism as requested by QI.
(c) Licensee will not and will not authorize any other entity to copy, modify,
disclose or transfer to any person all or any part of the QI Software, except as
expressly authorized in section 2 of this Agreement.
(d) Licensee will not make the QI Software available for distribution on-line
via the Internet or a bulletin board, or by any other electronic means.
(e) Licensee will not knowingly distribute to any customer who infringes QI's
proprietary rights in the QI Software.
(f) Licensee represents and warrants that it is a licensee of Macrovision
Corporation ("Macrovision") and is permitted under its license agreement with
Macrovision to sell and distribute QI software including such functionality.
(g) Licensee represents and warrants that it is a licensee of CSS and is
permitted under its license agreement with CSS to sell and distribute QI
software including such functionality.
12. INDEMNIFICATION.
(a) QI agrees to defend Licensee against, and pay the amount of any adverse
final judgment (or settlement to which QI consents) resulting from any third
party claims alleging that the QI Software as licensed under this Agreement
infringes any U.S. patent, copyright, or trade secret. QI's obligation under
this section is conditioned on Licensee's agreement that if the QI Software, in
QI's opinion, is likely to become the subject of such a claim, Licensee will
permit QI, at QI's option and expense, to either procure for Licensee the right
to continue marketing and using the allegedly infringing QI Software or replace
or modify them so as to become non-infringing. If neither of the foregoing
alternatives is available on terms which are reasonable in QI's sole judgement,
QI may terminate the license under this Agreement and Licensee shall immediately
cease shipping and or distributing copies of the QI Software.
(b) QI shall have no obligation with respect to any claim based upon: (i)
Licensee's combination of the QI Software with any other product provided such
claim would have been avoided without such combination; (ii) modifications or
changes made by Licensee to the QI Software; (iii) use of other than the most
current unaltered release of the QI Software; (iv) continued use of the QI
Software after Licensee first receives notice or such claim or action; (v) use
of the QI Software in a manner for which they were not designed or not according
to their specifications; or (vi) a claim of infringement of any essential
patents or intellectual property rights related to the MPEGII standard or any
other industry standard relating to DVD.
(c) Licensee will, at its expense, defend QI against any claim that the QI
Software infringe a patent or copyright of a third party which claim is not
subject to indemnification by QI under the above paragraph. Additionally,
Licensee will, at its expense defend QI against (a) any claim that arises out of
any alleged breach of warranty or representation given by Licensee in this
Agreement; (b) any breach of any obligation of Licensee under this Agreement.
Licensee will pay resulting costs and damages finally awarded by a court subject
to the paragraph below.
(d) To qualify for such defense and payment, the indemnified party must: (i)
give the indemnifying party prompt written notice of any such claim; and (ii)
allow the indemnifying party to control the defense and cooperate with the
indemnifying party in the defense and settlement negotiations.
13. QI REPRESENTATIONS AND WARRANTIES.
(a) QI represents and warrants to Licensee that it has the requisite power and
authority to enter into and carry out the terms of this Agreement.
(b) QI is either the owner of the QI Software and all intellectual property
rights therein or has procured all necessary rights and licenses from the owners
of such rights to enter into and carry out the terms of this Agreement.
14. DISCLAIMERS. LICENSEE AGREES AND UNDERSTANDS THAT QI SOFTWARE IS PROVIDED
"AS IS" AND QI MAKES NO WARRANTIES, PROMISES, CONDITIONS OR UNDERTAKINGS
WHATSOEVER, WHETHER EXPRESS, IMPLIED, COLLATERAL OR OTHERWISE, WITH REGARD TO
THE QI SOFTWARE, ORANY PARTS THEREOF, OR ANY SERVICES DELIVERED OR INTENDED TO
BE DELIVERED UNDER THIS AGREEMENT, AND THAT QI EXPLICITLY DISCLAIMS ALL
WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICUALR PURPOSE AND ALL
OTHER WARRANTIES, WHETHER ARISING BY STATUTE, OR OPERATION OF LAW, OR FROM A
COURSE OF DEALING, OR USAGE OF TRADE, OR OTHERWISE. FURTHER, QI EXPRESSLY DOES
NOT WARRANT THAT THE QI SOFTWARE, OR ANY PARTS THEREOF WILL BE ERROR FREE, WILL
OPERATE WITHOUT INTERRUPTION OR WILL BE COMPATIBLE WITH ANY HARDWARE OR SOFTWARE
POSSESSED OR TO BE POSSESSED BY LICESNSEE OR ANY END USERS.
15. LIMITATIONS OF LIABILITY. EXCEPT FOR LICENSEE'S BREACH OF SECTION 11(a),
NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, INCIDENTAL,
INDIRECT, ECONOMIC, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF
ANY BREACH OR FAILURE UNDER THIS AGREEMENT, INCLUDING
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[LOGO] SOFTWARE LICENSE AGREEMENT
16. THOSE ARISING FROM INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY
INTELLECTURAL PROPERTY RIGHT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. QI's sole and total liability and Licensee's sole remedy for any cause
of action shall be limited to the lesser of: (i) payments previously made by
Licensee to QI under this Agreement or (ii) one hundred thousand dollars
($100,000).
17. TERMINATION. QI shall have the right to automatically terminate this
Agreement and all licenses granted thereunder, immediately upon giving notice to
Licensee in the event that Licensee distributes the QI Software in a manner or
to a party not permitted hereunder, or if Licensee makes an assignment in
bankruptcy, is adjudicated a bankrupt, takes advantage of the insolvency laws of
any jurisdiction, makes an assignment for the benefit of creditors, is
dissolved, admits in writing its inability to pay debts as they become due, or
has a receiver or trustee appointed for its properties. QI may terminate this
Agreement upon thirty (30) days notice if Licensee breaches any other provisions
of this Agreement and fails to remedy the breach within such thirty (30) day
notice period. The following provisions survive termination or expiration of
this Agreement: Sections, 5,6,8,9,10,11,13, and 14.
18. GENERAL CONTRACT PROVISIONS.
(a) Any notice required under this Agreement shall be in writing and shall be
sufficiently given if delivered personally, or if transmitted by facsimile with
an original signed copy delivered personally within twenty-four hours
thereafter, or mailed by prepaid registered post addressed to QI or Licensee at
their respective addresses set forth at the beginning of this Agreement or at
such other then current address as is specified by notice.
(b) Neither this Agreement nor the license granted hereunder, are transferable
by the Licensee and any attempt by the Licensee to assign or transfer any of the
rights, duties or obligations hereunder is void.
(c) Both parties are independent contractors. Neither party will have the
authority to act for and or bind the other in any way, or to represent that
either is responsible for the acts of the other. Nothing herein will be
construed as forming a partnership or agency between the parties.
(d) Licensee hereby certifies that none of the QI Software or Improvements are
or will be intended for shipment, either directly or indirectly, to any country
in respect of which export restrictions or sanctions have been applied by the
Government of the United States. Licensee also agrees that it will obtain any
and all necessary export licenses.
(e) This agreement and all Schedules shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, and Licensee
hereby agrees to submit to the jurisdiction of the courts of the Commonwealth of
Pennsylvania notwithstanding any other provision expressed or implied in either
the Agreement or the Schedules.
(f) If any part of this Agreement is unenforceable because of any rule of law
or public policy, such unenforceable provision shall be severed from this
Agreement, and this severance shall not affect the remainder of this Agreement.
(g) Neither party shall be responsible to the other for non-performance or
delay in performance occasioned by any cause beyond its control. If any such
delay occurs then any applicable time period shall be automatically extended for
a period equal to the time lost, provided that the party affected makes
reasonable efforts to correct the reason for delay and gives to the other party
prompt notice of the delay.
QUADRANT INTERNATIONAL, INC. LICENSEE
--------------------------- --------
By: _______________________________ By: ______________________________
Name: _____________________________ Name: ____________________________
Title: ____________________________ Title: ___________________________
Date: _____________________________ Date: ____________________________
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[LOGO] SOFTWARE LICENSE AGREEMENT
SCHEDULE "A"
------------
1. QI SOFTWARE (list software to be provided, including version number, if
any):
________________________________________________________________________________
________________________________________________________________________________
to operate in conjunction with QI's (list QI's hardware product(s)):
________________________________________________________________________________
________________________________________________________________________________
2. TERRITORY
The license granted to Licensee is limited to the following geographic
territory:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
3. LICENSE FEES:
Licensee shall pay QI License Fees of per copy of the QI Software or
Improvement made by Licensee or provided to Licensee by QI under the terms of
this Agreement.
4. MINIMUM LICENSE PAYMENT:
Licensee agrees to purchase during each oneyear period covered by this Agreement
no less than copies of the QI Software or Improvement made by Licensee or
provided to Licensee by QI under the terms of this Agreement.
5. DOLBY LICENSEE FEES:
Licensee acknowledges that per unit Dolby license fees in the following amount
are in addition to the Licensee Fees referred to above:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
6. OTHER LICENSEE FEES:
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[LOGO] SOFTWARE LICENSE AGREEMENT
Licensee acknowledges that the following per unit license fees in the following
amounts are in addition to the Licensee Fees referred to above:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
7. ADDITIONAL PROVISIONS:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
PLEASE READ THIS LICENSE CAREFULLY BEFORE USING THE SOFTWARE. BY USING THE
SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE.
1. License. The software accompanying this License (hereinafter "Software"),
regardless of the media on which it is distributed, are licensed to you by
Quadrant International, Inc. ("QI") for use solely in conjunction with QI
hardware products purchased with the Software ("QI Hardware"). You own the
medium on which the Software is recorded, but QI and QI's Licensors (referred to
collectively as "QI") retain title to the Software and related documentation.
You may:
a) use the Software solely in conjunction with the QI Hardware on a single
computer;
b) make one copy of the Software in machine-readable form for backup purposes
only. You must reproduce on such copy QI's copyright notice and any other
proprietary legends that were on the original copy of the Software;
c) transfer all your license rights in the Software provided you must also
transfer a copy of this License, the backup copy of the Software, the QI
Hardware and the related documentation and provided the other party reads and
agrees to accept the terms and conditions of this License. Upon such transfer
your license is then terminated.
2. Restrictions. The Software contains copyrighted material, patented
material, trade secrets and or other proprietary material. In order to protect
them, and except as permitted by applicable legislation, you may not:
a) decompile, reverse engineer, disassemble or otherwise reduce the Software
to a human-perceivable form;
b) modify, network, rent, lend, loan, distribute or create derivative works
based upon the Software in whole or in part; or
c) electronically transmit the Software from one computer to another or over a
network or otherwise transfer the Software except as permitted by this License.
3. Termination. This License is effective until terminated. You may terminate
this License at any time by destroying the Software, related documentation and
all copies thereof. This License will terminate immediately without notice from
QI if you fail to comply with any provision of this License. Upon termination
you must destroy the Software, related documentation and all copies thereof.
4. Government End Users. If you are acquiring the Software on behalf of any
unit or agency of the United States Government, the following provisions apply.
The Government agrees the Software and documentation were developed at private
expense and are provided with "RESTRICTED RIGHTS". Use, duplication, or
disclosure by the Government is subject to restrictions as set forth in FAR
52.227-14, DFAR 252.227-7013, its successors or applicable agency rights in
technical data or computer software. In the event that this License, or any
part thereof, is deemed inconsistent with the minimum rights identified in the
Restricted Rights provisions, the minimum rights shall prevail.
5. No Other License. No rights or licenses are granted by QI under this
License, expressly or by implication, with respect to any proprietary
information or patent, copyright, trade secret or other intellectual property
right owned or controlled by QI, except as expressly provided.
6. Additional Licenses. DISTRIBUTION OR USE OF THE SOFTWARE WITH AN OPERATING
SYSTEM MAY REQUIRE ADDITIONAL LICENSES FROM THE OPERATING SYSTEM VENDOR.
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[LOGO] SOFTWARE LICENSE AGREEMENT
7. Disclaimer of Warranty on Software. You expressly acknowledge and agree
that use of the Software is at your sole risk. The Software and related
documentation are provided "AS IS" and without warranty of any kind and QI
EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. QI DOES NOT WARRANTY THAT THE FUNCTIONS CONTAINED IN THE
SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL
BE UNINTURRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE
CORRECTED. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS
ASSUMED BY YOU. FURTHERMORE, QI DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS
REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR RELATED
DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS,
OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY QI OR QI'S
AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE
SCOPE OF THIS WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU (AND NOT QI OR
QI'S AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY
SERVICING, REPAIR OR CORRECTION. THE SOFTWARE IS NOT INTENDED FOR USE IN
MEDICAL, LIFE SAVING OR LIFE SUSTAINING APPLICATIONS. SOME JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY
TO YOU.
8. Limitation of Liability. UNDER NO CIRCUMSTANCES INCLUDING NEGLIGENCE,
SHALL QI, OR ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU FOR
ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES
FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERUPTION, LOSS OF BUSINESS
INFORMATION, AND THE LIKE) ARISING OUT OF THE USE, MISUSE OR INABILITY TO USE
THE SOFTWARE OR RELATED DOCUMENTATION, BREACH OR DEFAULT, INCLUDING THOSE
ARISEING FROM INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY PATENT, TRADEMARK,
COPYRIGHT OR OTHER INTELLECTUAL PROPERY RIGHT, BY QI, EVEN IF QI OR QI'S
AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY
NOT APPLY TO YOU. QI will not be liable for 1) loss of, or damage to, your
records or data or 2) any damages claimed by you based on any third party claim.
In no event shall QI's total liability to you for all damages, losses, and
causes of action (whether in contract, tort (including negligence) or otherwise)
exceed the amount paid by you for the Software.
9. Controlling Law and Severability. This License shall be governed by and
construed under the laws of the Commonwealth of Pennsylvania without reference
to its conflict of law principles. In the event of any conflicts between
foreign law, rules, and regulations, and United States law, rules, and
regulations, United States law, rules and regulations shall prevail and govern.
The United Nations Convention on Contracts for the International Sale of Goods
shall not apply to this License. If for any reason a court of competent
jurisdiction finds any provision of this License or portion thereof, to be
unenforceable, that provision of the License shall be enforced to the maximum
extent permissible so as to effect the intent of the parties, and the remainder
of this License shall continue in full force and effect.
10. Complete Agreement. This License constitutes the entire agreement between
the parties with respect to the use of the Software and the related
documentation, and supersedes all prior or contemporaneous understandings or
agreements, written or oral, regarding such subject matter. No amendment to or
modification of this License will be binding unless in writing and signed by a
duly authorized representative of QI.
CONFIRMATION OF MACROVISION LICENSE
Licensee also requests that the QI Software include functionality to enable the
display of DVD video via analogue TV out and therefore, Licensee represents and
warrants that it is a licensee of Macrovision Corporation ("Macrovision") and is
permitted under its license agreement with Macrovision to sell and distribute QI
software including such functionality. Licensee will indemnify, defend, and
hold QI, its subsidiaries, successors, officers, suppliers, directors and
employees harmless from any and all actions, causes of action, claims, demands,
costs, liabilities, expenses and damages, including reasonable attorneys' fees,
arising out of or in connection with Licensee's failure to obtain or maintain
licenses required by Macrovision.
LICENSEE
--------
By:
Name:
Title:
Date:
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