EXHIBIT 10.8
SOFTWARE LICENSE AGREEMENT
This Software License Agreement ("Agreement") is made and effective this
September 1, 2002 by and between Innovative Systems, LLC ("Developer") and
Volcom Stone Board Wear, Inc. ("Licensee").
Developer has developed and licenses to users its software program marketed
under the name Full Circle Apparel Software (the "Software").
Licensee desires to utilize a copy of the Software.
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
Developer and Licensee agree as follows:
1. LICENSE:
Developer hereby grants to Licensee a perpetual, non-exclusive, limited license
to use the Software in the United States of America as set forth in this
Agreement.
2. RESTRICTIONS:
Licensee shall not modify, copy, duplicate, reproduce, license or sublicense
the Software, or transfer or convey the Software or any right in the Software
to anyone else without the prior written consent of Developer; provided that
Licensee may make one copy of the Software for backup or archival purposes.
3. FEE:
In consideration for the grant of the license and the use of the Software,
Licensee agrees to pay Developer the sum of license fee.
4. WARRANTY OF TITLE:
Developer hereby represents and warrants to Licensee that Developer is the
owner of the Software or otherwise has the right to grant to Licensee the
rights set forth in this Agreement. In the event any breach or threatened
breach of the foregoing representation and warranty, Licensee's sole remedy
shall be to require Developer or to either: i) procure, at Developer's expense,
the right to use the Software, ii) replace the Software or any part thereof
that is in breach and replace it with Software of comparable functionality that
does not cause any breach, or iii) refund to Licensee the full amount of the
license fee upon the return of the Software and all copies thereof to Developer.
5. WARRANTY OF FUNCTIONALITY:
A. For a period of ninety days following delivery of the Software to Licensee
(the "Warranty Period"), Developer warrants that the Software shall perform in
all material respects according to the Developer's specifications concerning
the Software when used with the appropriate computer
equipment. Licensee shall promptly notify Developer and Developer shall
correct any deficiencies in the software at no expense to the Licensee. It
will be at Developers discretion if said deficiencies are covered under
warranty. Licensee's sole remedy shall be that Developer shall correct the
Software so that it operates according to the warranty. This warranty shall not
apply to the Software if modified by anyone or if used improperly or on an
operating environment not approved by Licensor.
B. In the event of any defect in the media upon which the Software is provided
arising within ninety days of the date of delivery of the Software, upon return
to Developer of the Software upon the original media, Developer shall provide
Licensee a new copy of the Software.
6. SOFTWARE MAINTENANCE:
A. Standard maintenance. During the Warranty Period, Developer shall provide to
Licensee any new, corrected or enhanced version of the Software as created by
Developer. Such enhancement shall include all modifications to the Software
which increase the speed, efficiency or ease of use of the Software, or add
additional capabilities or functionality to the Software.
B. Optional maintenance. After expiration of the Warranty Period, Licensee may
continue to receive maintenance support on a monthly basis. The charge for such
optional maintenance support shall be Developer's regular list price for
maintenance and support for the Software as published from time to time by
Developer. Developer will deliver a software maintenance agreement for review
and execution if Licensee requires software maintenance. If Licensee fails to
take software maintenance Licensee may still receive support but at Developers
non-maintenance rates. Under the non-maintenance support any new, corrected or
enhanced version of the software as created by developer will be available to
Licensee but Licensee shall pay for any such enhancements. Developer may elect
to discontinue maintenance at any time upon notice to Licensee, and refund of
any then unearned maintenance fees.
7. PAYMENT
Payment of the license fee shall be in accordance with proposal delivered to
Licensee. Payment of any other amount owed by Licensee to Developer pursuant to
this Agreement shall be paid within thirty (30) days following invoice from
Developer. In the event any overdue amount owed by Licensee is not paid
following ten (10) days written notice from Developer, then in addition to any
other amount due, Developer may impose and Licensee shall pay a late payment
charge at the rate of one percent (1%) per month on any overdue amount.
8. TAXES
In addition to all other amounts due hereunder, Licensee shall also pay to
Developer, or reimburse Developer as appropriate, all amounts due for property
tax on the Software and for sales, use, excise taxes or other taxes which are
measured directly by payments made by Licensee to Developer. In no event shall
Licensee be obligated to pay any tax paid on the income of Developer or paid
for Developer's privilege of doing business.
9. WARRANTY DISCLAIMER
DEVELOPER'S WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE
AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY:
Developer shall not be responsible for, and shall not pay, any amount of
incidental, consequential or other indirect damages, whether based on lost
revenue or otherwise, regardless of whether Developer was advised of the
possibility of such losses in advance. In no event shall Developer's liability
hereunder exceed the amount of license fees paid by Licensee, regardless of
whether Licensee's claim is based on contract, tort, strict liability, product
liability or otherwise.
11. NOTICE:
Any notice required by this Agreement or given in connection with it, shall be
in writing and shall be given to the appropriate party by personal delivery or
by certified mail, postage prepaid, or recognized overnight delivery services.
Innovative Systems, LLC
00000 Xxxxxx Xxx #000
Xxxxxx Xxxxx, XX 00000
12. GOVERNING LAW:
This Agreement shall be construed and enforced in accordance with the laws of
the state of California.
13. NO ASSIGNMENT:
Neither this Agreement nor any interest in this Agreement may be assigned by
Licensee without the prior express written approval of Developer.
14. FINAL AGREEMENT:
This Agreement terminates and supersedes all prior understandings or agreements
on the subject matter hereof. This Agreement may be modified only by a further
writing that is duly executed by both parties.
15. SEVERABILITY:
If any term of this Agreement is held by a court of competent jurisdiction to be
invalid or unenforceable, then this Agreement, including all of the remaining
terms, will remain in full force and effect as if such invalid or unenforceable
term had never been included.
16. HEADINGS:
Headings used in this Agreement are provided for convenience only and shall not
be used to construe meaning or intent.
IN WITNESS WHEREOF, Developer and Licensee have executed this Software License
Agreement on the day and year first above written.
Innovative Systems, LLC Volcom Stone Board Wear, Inc.
Xxxxxx X. Xxxxxxxx Xxxx Xxxxxxx
Principal CFO
00000 Xxxxxx Xxx #000 0000 Xxxxxxxx Xxx.
Xxxxxx Xxxxx, XX 00000 Xxxxx Xxxx, XX 00000
