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SOFTWARE LICENSE & DISTRIBUTION AGREEMENT
This Agreement is made as of the 8th day of December, 1996
BETWEEN: SYNCRONYS SOFTCORP, a Nevada corporation with its principal
place of business at 0000 Xxxx Xxxxxxxxx, Xxxxxx Xxxx, XX,
00000
("Distributor")
AND: ACCELERATION SOFTWARE INTERNATIONAL CORPORATION, a Washington
corporation with its principal place of business at 0000 XX
Xxxx Xxxx Xxxx Xxxxxxx, XX 00000
("Developer")
WITNESS THAT WHEREAS Developer has developed a Windows 95 software program
entitled "SuperFassst!" which Distributor wishes to distribute pursuant to the
terms of this Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises
and the mutual agreements and covenants herein contained (the receipt and
adequacy of such consideration is hereby mutually acknowledged by each party),
the parties hereby covenant and agree as follows:
SECTION 1. DEFINITIONS
1.01 "SOFTWARE" shall mean an object copy of the hard drive accelerator
called SuperFassst! for Windows '95 on a CD-ROM (or other media if available)
packaged for retail sale to end users, in retail packaging to be approved by
Developer in accordance with Section 2.06, together with modifications,
revisions and error corrections which Developer shall make available to
Distributor from time to time.
1.02 "END USER" shall mean any third party which obtains a copy of the
Software to fulfill its own computer aided instruction or tool needs.
1.03 "SALE" OR "SELLING" OR "PURCHASE" OR "PURCHASING" of Software or a copy
of the Software shall mean, with respect to the intellectual property rights
related to such Software, the grant or acquisition, respectively, of a license
to use the Software. With respect to tangible property, such terms shall be
accorded their common meanings. In either case, such terms shall (i) include
all sales, licenses, transfers or other dispositions for value, (ii) include use
by Distributor, and (iii) be deemed a sale not later than when recorded as such
on the books or records of Distributor which are maintained for financial
statement purposes.
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1.04 "SITE LICENSES" shall mean licensing software for multiple computers or
multiple users. It is intended that the industry standard usage of selling
software to corporations using site, enterprise, server, seat or processor-based
licenses and similar transactions be incorporated into the definition of Site
Licenses.
1.05 "OEM BUNDLING" shall mean licensing software for resale only in
combination with one or more other items, typically hardware. It is intended
that the industry standard usage of selling software via OEM licensing, bundling
and similar transactions be incorporated into the definition of OEM Bundling.
1.06 "DIRECT MARKETING" shall mean the promotion and selling of software
directly to End Users without using a reseller, specifically using the Internet,
online sales, and direct mail. It is intended that the industry standard usage
of direct marketing be incorporated into the definition of Direct Marketing.
1.07 "RETAIL CHANNEL" shall mean all resellers who purchase the Software for
ultimate sale to an individual and specifically excludes Site Licenses, OEM
Bundling and Direct Marketing.
SECTION 2. APPOINTMENT AND AUTHORITY OF DISTRIBUTOR
2.01 GRANT OF LICENSE. Developer hereby grants to Distributor a license to
distribute and market (a) the English language version of the Software into the
Retail Channel on an exclusive basis and Direct Marketing on a non-exclusive
basis for the United States and Canada, (b) if Distributor achieves the "Launch
Plan" described in Section 2.02, the English and German language version of the
Software into the Retail Channel on an exclusive basis and Direct Marketing on a
nonexclusive basis in Germany, and (c) the English language version of the
Software into the Retail Channel and Direct Marketing on a non-exclusive basis
for the rest of the world except for France, Poland and Japan (the "License").
Distributor may in its discretion from time to time sub-license, transfer or
assign in whole or part an interest in the license in sub-sections (b) and (c)
above, to any other person for the purposes of increasing distribution and sales
of the Software outside of United States and Canada; provided however, that any
such sub-license, transfer or assignment shall be subject to Developer's rights
contained in this Agreement and shall not in any way relieve Distributor of its
obligations to Developer hereunder.
2.02 LAUNCH PLAN. Distributor will use its best efforts to market and sell
the Software in a manner to maximize the sales potential of the Software. If
Distributor has at least [CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION] copies of the Software placed in the Retail
Channel in the United States and Canada with retailers which represent not less
than 70% of computer software retail sales as determined by PC Data within three
months following the Commencement Date (as defined in Section 10.01), the
"Launch Plan" will be
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deemed to have been met, and Distributor will have the rights in Germany
described in Section 2.01(b). Distributor acknowledges that EU trade rules
prohibit absolute exclusivity, but if the Launch Plan is met, Developer will not
appoint any other distributor of the Software in the Retail Channel for Germany.
2.03 RESERVATIONS FROM GRANT.
(a) Developer reserves all rights not specifically granted in Section 2.01,
including, without limitation, all rights to OEM Bundling and Site Licenses and
non-exclusive rights to Direct Marketing, as well as any and all rights to
Developer products other than the Software. All OEM Bundling, Site Licenses and
Direct Marketing undertaken by the Developer shall use the name SuperFassst! (or
others names that are different from the name selected by Distributor). The
version of the Software available on a large scale via OEM Bundling will not be
at a higher revision level than the version available in retail updated by free
Internet upgrades. Developer shall release major new revisions not less than
six (6) months apart.
(b) In the event that Distributor cannot resolve the pre-existing liabilities of
Xxxxxxx Synergy Corporation to Computer City and Micro Central (in an
arrangement approved by Developer) for amounts not more than $ [CONFIDENTIAL
PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION] in cash
payments plus not more than $ [CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION] in Developer's foregone revenues (e.g., product
credit) before February 15, 1997, Developer retains the right to distribute to
Computer City and Micro Central not more than 8,000 units of a premium priced
retail version of the Software combined with other software, whose distribution
price shall not be less than $ [CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION]. Such distribution by the Developer shall be
done in a way to minimize any negative impact on the sales and marketing of the
Software.
2.04 MARKET DATA. Distributor shall, where available, provide Developer
with (a) quarterly Software sales numbers through distributors, resellers, sales
representatives and End Users (b) marketing and merchandising programs completed
and planned, (c) any other information of benefit to Developer in cooperating
with Distributor and developing modifications to the Software or new products.
2.05 MINIMUM PERFORMANCE REQUIREMENTS. Distributor shall purchase a minimum
of [CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION] copies of the Software from Developer during the six (6) month
period following the Commencement Date, defined in Section 10.01, and
[CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
copies for each subsequent six (6) month period, during the term of this
Agreement.
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2.06 DISTRIBUTOR RESPONSIBILITIES. Distributor shall, at its cost, produce
retail packaging, media label artwork, user's manuals, localization of non-code
resources to German if German language rights are granted as per 2.01(b), and
sales and marketing materials for the Software and shall use its best efforts to
pursue aggressive sales and marketing to realize the maximum sales potential for
the Software. All such packaging and materials shall be provided to Developer
for its review and approval, such approval not to be unreasonably withheld or
delayed. Failure by Developer to approve or disapprove a component within seven
(7) business days shall be deemed to be approval for that component. For
SuperFassst! the parties have agreed at minimum that (a) Distributor shall not
use "SuperFassst!" as the product name, but rather will use a different name of
its choice, (b) reference to the "SuperFassst! Technology" will appear in
reasonable prominence on the front of the box, (c) Developer's corporate logo
and "created by" attribution will appear in reasonable prominence on the back of
the box and (d) the appropriate legal trademark and copyright notices will
appear in fine print on the box.
2.07 DISTRIBUTOR REPRESENTATIONS. Distributor represents to Developer that
it has full right and authority to enter into this Agreement and to perform its
obligations under this Agreement. This Agreement and Distributor's performance
hereunder, do not conflict with or cause a breach under any agreement, license
or other instrument, or law, rule, order or regulation to which the Distributor
is bound or subject.
SECTION 3. PRODUCTION OF SOFTWARE
3.01 PRODUCTION. Developer shall, at its cost and at a facility of its
selection, reproduce the executable code of Software on a electronic media (with
media label artwork provided per Section 2.06) in a form suitable for use in
retail packaging and shall deliver same to location(s) specified by Distributor.
Developer shall use its best efforts to make available a reasonably secure
floppy based version of the Software. The parties agree to fully cooperate to
minimize delivery costs and production costs, such production costs shall not
exceed $ [CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION] per media. Under no circumstances shall Distributor replicate or
otherwise duplicate Software, on CD-ROM discs or otherwise, or obtain such
replicated or duplicated Software from any source other than Developer.
Possession by Distributor of a "Gold Disc" or other medium commonly used to
replicate or duplicate software shall not be construed as evidence that
Distributor has any right to replicate or duplicate Software.
3.02 ORDERS. Distributor will place written purchase orders with the
Developer for the Software with at least five (5) days production lead time and
shipping instructions and shall pay for such orders, including shipping and any
other associated charges in accordance with Section 6.03.
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3.03 SOFTWARE RETURNS. Distributor shall have the right not more than once
per month to return Software media to the Developer for credit (up to a monthly
maximum of half of the average monthly volume of Software media delivered
to Distributor for the previous three months) who shall issue to Distributor an
RMA for such returns. This Section 3.03 together with Section 7.01 are
Distributor's sole and exclusive return rights.
SECTION 4. END USER RESTRICTIONS
Distributor shall distribute the Software only in its original, unopened
packages and subject to a "shrink-wrap" or other appropriate license agreement,
which shall be subject to approval by Developer, such approval not to be
unreasonably withheld or delayed.
SECTION 5. RESTRICTIONS ON DISTRIBUTOR
Distributor agrees not to reverse assemble, decompile, or otherwise attempt to
derive source code from the Software, modify the Software or translate the
software. Distributor further agrees to comply with all laws, foreign and
domestic in connection with the marketing and selling of the Software.
SECTION 6. PAYMENT
6.01 PAYMENT AMOUNT. Distributor shall pay Developer an amount equal to
[CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
% of the Gross Revenues realized by Distributor for the sale of the Software
("Payment Amount"). Gross Revenues shall mean the amount booked less returns as
per Section 3.03 and 7.01, less return reserve in accordance with GAAP (the
current amount is approximately 10% to 15% of units) and such return reserve
will be utilized before the returns allowed in Section 3.03 and 7.01, less
freight out and less industry standard cash discounts not to exceed 3%. Both
parties agree on an initial Payment Amount of at least [CONFIDENTIAL PORTION HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION] dollars per unit of
Software delivered to Distributor, less the returns specified in 3.03 and 7.01.
Distributor will notify Developer of any price changes, however any pricing
reduction shall be agreed to in writing by both parties, acting reasonably to
maximize long term revenues. The Payment Amount is in addition to reimbursement
to Developer of the cost of the Software media and shipping charges.
6.02 ADVANCE PAYMENT. Distributor shall, no later than December 20, 1996,
pay Developer a non-refundable two hundred and fifty thousand dollars ($250,000)
as an advance against the Payment Amount and reimbursement for the cost of the
Software media.
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6.03 ON-GOING PAYMENTS. Upon depletion of the Advance Payment, the
Distributor shall pay the Developer in respect of the Payment Amount and the
cost of the Software media $ [CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION] per CD-ROM disc (or other media) delivered to
the Distributor net 15 days with the balance due net 75 days. In the event that
the Distributor fails to pay net 15 more than three times in any given year or
is ever more than 30 days late, then Developer shall have the option to change
terms to COD rather than net 15 days.
6.04 RECONCILIATIONS AND AUDIT. Distributor shall maintain accurate books
and records pertaining to the production and distribution of Software.
Distributor shall provide an account reconciliation within thirty (30) days
after the end of each calendar quarter, for the sales made during such quarter.
Each reconciliation shall be accompanied by a detailed statement showing the
basis on which such payment was calculated. Upon fifteen days notice by
Developer, Distributor shall provide access to its books and records during
ordinary business hours to an independent certified public accounting firm,
retained by Developer on a non-contingency basis to review Distributor's books
to verify such calculations. Such verification shall occur no more than twice
annually. Such verification shall be at Developer's expense, unless the
verification reflects an underpayment of seven and a half percent (7.5%) or more
of the amount that should have been paid for the period audited, in which case
Distributor shall bear the expense of such audit. Interest of one and one-half
percent (1.5%) per month shall be paid on payments not timely made.
6.05 TRANSACTIONS WITH AFFILIATES. All transactions by Distributor with
Affiliates shall be at fair market prices for comparable transactions between
unrelated parties, including a reasonable profit on such transactions.
6.06 LETTER OF CREDIT. Distributor shall, not later than December 20, 1996,
provide Developer with a formal letter of credit (in a form acceptable to
Developer, such acceptance not to be unreasonably withheld or delayed) drawn on
a major US Bank in the amount of six hundred thousand dollars ($600,000). The
Developer may, ninety (90) days after the first anniversary of the Commencement
Date, draw down an amount equal to the difference between eight-hundred fifty
thousand dollars ($850,000) and the actual Payment Amounts paid to Developer,
provided that the principal amount of the Letter of Credit may be reduced in
accordance with Section 9.05.
6.07 DISTRIBUTOR OPTIONS. Prior to December 20, 1996, Distributor shall
grant Developer or its designees 200,000 options on terms not less favorable
than provided in Distributor's stock option plan, to purchase Distributor's
common stock at the closing bid price as of the date hereof which shall vest and
be exercisable as follows:
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(a) 25,000 options upon achieving aggregate unit sales of the
Software equal to or in excess of 62,500 units;
(b) an additional 25,000 options upon achieving aggregate unit
sales of the Software equal to or in excess of 125,000 units;
(c) an additional 25,000 options upon achieving aggregate unit
sales of the Software equal to or in excess of 187,500 units;
(d) an additional 25,000 options upon achieving aggregate unit
sales of the Software equal to or in excess of 250,000 units;
(e) an additional 50,000 options upon achieving aggregate unit
sales of the Software equal to or in excess of 350,000 units;
and
(f) an additional 50,000 options upon achieving aggregate unit
sales of the Software equal to or in excess of 450,000 units;
and
6.08 BUNDLED TRANSACTIONS. Where Software is bundled with another software
product, the portion of the gross revenues attributed to the Software shall be
based upon and apportioned in accordance with the retail prices of the
constituent parts of the bundle. In no event will Distributor or any of its
resellers bundle the Software with other products (whether "hard" bundled or
"soft" bundled and whether with software or hardware) without Developer's prior
written consent.
SECTION 7. DEVELOPER'S WARRANTY
7.01 WARRANTY. Developer warrants that the media on which the Software is
delivered will be free of defects in material and workmanship for a period of
ninety (90) days from delivery to Distributor. Software that an end user returns
(accompanied by a Distributor certification for each shipment) will be treated
as defective media. As the sole remedy for this warranty, Developer shall either
replace the defective media or repay the full amount it received for the
Software plus shipping charges to the Distributor at Distributor's option. This
Section 7.01 together with Section 3.03 are Distributor's sole and exclusive
return rights.
7.02 LIMITATION OF LIABILITY AND REMEDIES. EXCEPT AS SET FORTH IN THIS
AGREEMENT, DEVELOPER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
AND SPECIFICALLY EXCLUDES ANY WARRANTY THAT THE SOFTWARE IS FIT FOR ANY
PARTICULAR PURPOSE AND FURTHER SPECIFICALLY EXCLUDES ANY IMPLIED WARRANTIES OF
MERCHANTABILITY. THE STATED WARRANTIES, COVENANTS AND REMEDIES SET FORTH IN
THIS AGREEMENT ARE IN LIEU OF ALL OTHER OBLIGATIONS OR LIABILITIES ON THE PART
OF DEVELOPER FOR DAMAGES
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OR OTHER RELIEF, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INDIRECT OR
CONSEQUENTIAL DAMAGES THAT IN ANY WAY ARISE OUT OF OR IN CONNECTION WITH THE USE
AND/OR THE PERFORMANCE OF THE SOFTWARE. IN NO EVENT EXCEPT FOR (A) FRAUD BY THE
DEVELOPER, (B) FAILURE, REFUSAL OR INABILITY OF THE DEVELOPER TO PROVIDE THE
SOFTWARE MEDIA AND (C) THE INDEMNIFICATION OBLIGATIONS OF SECTION 13, SHALL THE
LIABILITY OF DEVELOPER TO DISTRIBUTOR PURSUANT TO THIS AGREEMENT EXCEED THE
AMOUNT RECEIVED BY DEVELOPER FROM DISTRIBUTOR WITH RESPECT TO THE SOFTWARE.
SECTION 8. ADDITIONAL OBLIGATIONS OF DISTRIBUTOR
8.01 PROMOTION OF SOFTWARE OR TECHNOLOGY. Distributor shall, at its own
expense, vigorously promote the distribution of the Software. Such promotion
shall include, but shall not be limited to, advertising the Software in
publications, participating in trade shows, establishing appropriate
distribution channels and merchandising programs, and directly soliciting orders
from customers for Software. Developer shall provide Distributor with 500 copies
of the Software per year free of charge for NFR and promotional purposes.
8.02 COMPETITIVE SALES. During the term of this Agreement and for three
months after termination, Distributor shall not market or sell any product
directly competitive with the current version of the Software or a significant
subset thereof. In addition, during the term of this Agreement and for twelve
months after termination, Distributor shall not use the tradename of the
Software or artwork uniquely associated with the Software to market or sell any
software product directly competitive with the current version of the Software
or a significant subset thereof.
SECTION 9. ADDITIONAL OBLIGATIONS OF DEVELOPER
9.01 NEW DEVELOPMENTS. Developer shall provide Distributor reasonable
notice of new developments in connection with the Software.
9.02 MARKETING ASSISTANCE. Developer shall provide Distributor with market
data which is obtained by Developer and relates to the Software and which may
benefit Distributor in distributing the Software.
9.03 TECHNICAL ACCEPTANCE. Developer shall at its sole expense be
responsible for running industry standard quality assurance tests on
SuperFassst! prior to providing it to Distributor for release. Developer shall
fully cooperate with Distributor in its due diligence approval of SuperFassst!
and the behavior of the underlying technology, ("Technical Acceptance"). For the
initial release, Technical Acceptance shall be deemed to have been satisfied
upon Developer's receipt of the Advance Payment described in 6.02 and the
Software shall also be deemed to be Technically Superior. For future formal
releases, Technical Acceptance shall be deemed to have been satisfied upon
reasonable agreement between the parties.
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9.04 USERS MANUAL. Distributor shall at its sole expense, but with the
reasonable cooperation and input of Developer, be responsible for preparing the
users manual for the Software. Developer shall provide Distributor with the
electronic form of the current SuperFassst! user manual.
9.05 TECHNICAL SUPERIORITY. Developer shall maintain the Technical
Superiority of SuperFassst! Software and its underlying technology. Technical
Superiority shall mean not less than 25% performance improvement over Windows 95
and its subsequent releases ("OS Competitor") and/or competitive software
products ("Product Competitor") on tests proposed by Developer and accepted by
an independent testing laboratory (to be mutually agreed by the parties, acting
reasonably). As soon as practicable after release of a new OS Competitor or
Product Competitor, the then current version of the Software and such product
shall be provided to an independent testing laboratory. In the event that the
Software is determined by that testing laboratory not to be Technically
Superior, then Developer shall have forty-five (45) days to deliver to
Distributor a version of the Software which is Technically Superior or otherwise
delivers mutually agreed to added functionality to restore the leadership
positioning of the Software in the Retail Channel, failing which the sole
recourse is to reduce the principal amount of the Letter of Credit referred to
in Section 6.06 by either (a) equal to the Payment Amount referred to in Section
6.01 multiplied by the unit sell through of the Product Competitor as reported
in PC Data or (b) $500 per day from the release date of the OS Competitor as
reported in PC Data, such reductions shall stop after the first anniversary of
the Commencement Date.
9.06 SUPPORT. Developer shall at its sole expense be responsible for
providing reasonable professional end-user technical support for the Software
with access by way of toll-free phone, fax, mail and e-mail. Developer shall at
its sole expense be responsible for correcting bugs or providing reasonable
workarounds for the Software as and when the need arises. Distributor shall give
Developer notice of all Software "bugs" promptly upon discovery and, in the case
of Fatal or Severe bugs, within forty-eight (48) hours after discovery.
9.07 PERFORMANCE VALIDATION. Developer shall provide Distributor detailed
benchmark procedures and results to characterize the performance of the Software
across a wide spectrum of computers. Technical descriptions of the black box
behavior of the Software will be provided in a white paper sanitized of
proprietary information to convey the expected performance behavior of the
Software.
9.08 DEVELOPER REPRESENTATIONS. Developer represents to Distributor that
it has full right and authority to enter into this Agreement. This Agreement
and Developer's performance hereunder, do not conflict with or cause a breach
under
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any agreement, license or other instrument, or law, rule, order or regulation to
which the Developer is bound or subject. Developer further represents to
Distributor that it has good and valid title to the Software code and to grant
the License, free and clear of any claims, encumbrance, rights and obligations.
9.09 GOLD MASTER ESCROW. Developer shall from time to time place a true,
correct and complete gold master copy of the executable code of the Software and
all major revisions thereto with Data Base, Inc. as escrow agent, in accordance
with an industry standard escrow agreement approved by Distributor, such
approval not be unreasonably withheld or delayed. In the event that the
Developer goes into bankruptcy or insolvency and as a result thereafter fails,
refuses or is unable to provide the Software media to the Distributor in
accordance with orders placed by Distributor under Section 3 and does not cure
such failure within 20 days after notice by Distributor specifying the failure
and specifically stating that Distributor intends to obtain the Software from
the escrow agent, Developer hereby irrevocably directs such escrow agent to
deliver such gold master copy of the Software to the Distributor who shall use
such copy exclusively for use in accordance with the Agreement.
9.10 PRODUCT LIABILITY INSURANCE. Developer shall obtain (and during the
term of this Agreement shall maintain) product liability insurance with respect
to Software limited by $1,000,000 per occurrence and a maximum of $3,000,000
liability. Developer will name Distributor as an Additional Insured on such
policy and will utilize such insurance against any product liability claim with
respect to the Software. Distributor agrees to provide Developer with notice of
any such claim as promptly as possible and in any event within the time periods
required of an Additional Insured in accordance with the policy.
SECTION 10. TERM, RENEWAL AND TERMINATION
10.01 TERM. The License shall be for a term of three (3) years from the
earlier of (a) the date of first availability of the Software at any reseller or
(b) February 15, 1997 (the "Commencement Date") unless terminated earlier under
the provisions of this Agreement. This term shall automatically renew for two
(2) additional one (1) year periods provided Distributor has met the Minimum
Performance Requirements set forth in Section 2.05. Failure by Distributor to
meet the Minimum Performance Requirements shall not constitute a breach of this
Agreement. Failure of Distributor to obtain written approval of the Letter of
Credit described in 6.06 prior to December 20, 1996 shall give Developer the
option to terminate this Agreement.
10.02 CONVERSION TO NON-EXCLUSIVE DISTRIBUTORSHIP. In the event Distributor
fails to meet Minimum Performance Requirements of Section 2.05, Developer shall
have the option to make the License completely non-exclusive; provided
Distributor is notified at least three months before the Software will be
available in the Retail Channel via another party, such notice can be given
during the Distributor's
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exclusive period if reasonable projections indicate likely failure to meet the
Minimum Performance Requirements. In the event an alternate source of the
Software is in the Retail Channel before the first anniversary of the
Commencement Date, the principal amount of the Letter of Credit (under Section
6.06) shall be reduced by an amount equal to the Payment Amount referred to in
Section 6.01 multiplied by the unit sell through of such Software as reported in
PC Data.
10.03 BREACH AND TERMINATION. Prior to terminating this Agreement,
requesting arbitration, filing suit or taking similar action upon a breach of
this Agreement by either party, the non-breaching party shall give the breaching
party notice of the basis for asserting such breach. If the breaching party
fails to cure such breach within thirty (30) days, and the breach is a material
breach, the non-breaching party may terminate this Agreement. If the breach is
the non-payment of any amounts due under this Agreement, the breach shall be
deemed to be a material breach, and the breaching party shall have fifteen (15)
days to cure such breach. Sections 8.02, 11, 12, 13 and 14 shall survive
termination or expiration of this Agreement for any reason.
10.04 WAIVER OF LIABILITY ON TERMINATION. Should this Agreement or any portion
thereof lawfully expire, terminate or not be renewed, neither party will be
liable to the other because of such event for reimbursement of costs or expenses
or for damages on account of the loss of prospective profits, anticipated sales,
goodwill or on account of expenditures, inventory, investments, leases or
commitment in connection with the business of Developer or Distributor, or for
any other reason whatsoever flowing from such event. Such event shall not,
however, relieve either party of any obligation incurred before termination or
of liability for breach of any of the provisions of this Agreement. The parties
hereby specifically waive, to the maximum extent permitted by law, any claims
for compensation damages arising out of the lawful termination or expiration of
this Agreement in accordance with its terms.
SECTION 11. PROPERTY RIGHTS
Distributor agrees that Developer owns all right, title and interest in the
Software now or hereafter subject to this Agreement, and in all patents,
trademarks, trade names, inventions, copyrights, know-how, trade secrets, and
any other proprietary information relating to the design, operation or
maintenance of the Software, all technology contained therein and the
SuperFassst! trademarks, and advertising, sales, marketing materials and artwork
that Developer creates in connection with the Software. The use by Distributor
of any of these property rights is authorized only for the purposes set forth in
this Agreement, and upon termination of this Agreement for any reason such
authorization shall cease except to the extent necessary for Distributor to
provide maintenance to its existing customers for the Software. Software source
code shall be disclosed by Developer to Distributor only in Developer's sole
discretion. Distributor shall own and at all times continue to own
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copyright, trademarks and other intellectual property rights to such names
as Distributor shall market SuperFassst! under and to all other advertising,
sales and marketing materials and artwork that Distributor creates in connection
with the Software.
SECTION 12. INDEMNIFICATION OF DEVELOPER
Distributor warrants that it will not make any false or misleading statements to
any End User or potential End User and also that it will not make any
representation or warranty to any customer outside the End User license
agreement. Distributor agrees, at its own expense, to defend and indemnify
Developer, if necessary, against any actions, liabilities, costs, damages,
claims, losses and expenses (including but not limited to attorney's fees)
arising out of Distributor's breach of this warranty. Distributor agrees to
provide Developer with notice of any such claim as promptly as possible.
SECTION 13. INDEMNIFICATION OF DISTRIBUTOR
Developer agrees to defend, indemnify and hold Distributor harmless from and
against any and all claims, demands, liabilities, actions, judgments, and
expenses, including attorney's fees and expenses reasonably incurred by, against
or of Distributor, arising out of any breach of Section 9.08 or any product
liability claim with respect to the Software. Distributor agrees to provide
Developer with notice of any such claim as promptly as possible.
SECTION 14. CONFIDENTIALITY
14.01 DEFINITION. "Confidential Information" shall mean any information, idea,
technology, know-how, invention, algorithm, data, process, technique, program,
computer software, computer code and related documentation, work-in-process,
future development, engineering, manufacturing, marketing, business, technical,
financial or personal matter relating to the parties, their research,
development, present or future products, sales, customers, employees,
opportunities, market, or business, whether in oral, written, graphic or
electronic form, that is treated as confidential by the respective parties and
identified as such at the time of disclosure to the other party. In addition,
the material terms and conditions of this Agreement shall be treated as
Confidential Information.
14.02 MAINTAINING CONFIDENCE. Developer and Distributor, their respective
officers, employees, agents, representatives, and permitted assigns shall hold
in confidence Confidential Information belonging to the other; and shall use
such Confidential Information only during the term of this Agreement and only as
expressly permitted herein. The material terms and conditions of this Agreement
shall be considered Confidential Information. Each party may disclose such
Confidential Information belonging to the other to its employees with a need to
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know, provided that such employees are bound to maintain the confidentiality of
such Confidential Information. Non-disclosure obligation shall not apply to such
information if the party can document (a) has entered the public domain and is
generally available to the public as a result of no act or omission of the party
or its employees or agents, (b) is lawfully received by the party from third
parties without restriction and without breach of any duty of non disclosure by
any such third party, or (c) is developed independently by the party without
reference to the Confidential Information. The parties shall use reasonable
efforts to identify and prevent any unauthorized use or disclosure of
Confidential Information, and shall advise each other in the event one party
learns or has reason to believe that any person has violated or intends to
violate the terms of this Agreement, and will cooperate in seeking injunctive
relief against such person.
SECTION 15. GENERAL
15.01 NO ASSIGNMENT. Subject to the provisions of Section 2.01 herein,
neither party may assign all or any part of its interest in or to this Agreement
without the written consent of the other party and any purported assignment
without such consent shall be void.
15.02 EXPENSES. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses.
15.03 NOTICES. All notices, requests, demands or directions relating to this
Agreement shall be in writing and delivered via courier addressed to the
appropriate party at the address of such party as set out below, or to such
other addresses as may be specified by one party to the other parties by notice
in writing. Any notice, request, demand, direction authorization or other
communication given shall be deemed to have been received by the party to whom
it was given on the third business day following the sending thereof by courier.
If to Developer: Acceleration Software International Corporation
0000 XX Xxxx Xxxx Xxxx
Xxxxxxx, XX 00000, Xxxxxx Xxxxxx
If to Distributor: Syncronys Softcorp
0000 Xxxx Xxxx.
Xxxxxx Xxxx, XX 00000, Xxxxxx Xxxxxx
15.04 ARBITRATION, JURISDICTION AND VENUE. Any controversy or claim between the
parties arising out of or relating to this Agreement or any alleged breach
thereof shall be resolved by arbitration conducted in greater Seattle,
Washington in accordance with the Commercial Arbitration Rules of the American
Arbitration Association then in effect by a single arbitrator knowledgeable
about the
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development, distribution and licensing of computer software. Either party may
submit such controversy or claim for arbitration by giving written notice. The
arbitrator shall apply the law of the State of California as more fully set
forth in Section 15.05. The decision of the arbitrator, including, without
limitation, with respect to specific performance of this Agreement shall be
final and binding upon the parties. The parties may seek from the court a
provisional remedy in connection with an arbitrable controversy or claim and
such application to the court shall not waive any right of arbitration. The
prevailing party in any such arbitration shall be entitled to recover from the
non prevailing party in addition to all other relief, all reasonable costs and
expenses, including, without limitation, attorneys fees and expert witness fees,
actually incurred by such party in connection with such arbitration. Each of the
parties, by executing this Agreement, unconditionally submits to the
jurisdiction of the courts of the State of Washington and of the United States
with respect to the enforcement of this provision or any arbitration award
hereunder and agrees to accept service of process in California.
15.05 CHOICE OF LAW. This Agreement shall be governed by and construed under
the laws of the State of California without regard to conflict of laws
principles or the U.N. Convention on Contracts for the International Sale of
Goods.
15.06 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, whether written
or oral, made between the parties hereto, and there do not exist any
representations, warranties, terms or conditions, expressed or implied,
statutory or otherwise, and no agreements collateral hereto, other than as
expressly set forth or referred to in this Agreement.
15.07 INUREMENT. This Agreement and each of the terms and provisions hereof
shall inure to the benefit of and be binding upon the parties hereto and their
respective heirs, executors, administrators, personal representatives,
successors and permitted assigns.
15.08 SEVERABILITY. If any one or more of the provisions contained in this
Agreement should be invalid, illegal or unenforceable in any respect in any
jurisdiction, the validity, legality and enforceability of such provision or
provisions shall not in any way be affected or impaired thereby in any other
jurisdiction and the validity, legality and enforceability of the remaining
provisions contained herein shall not in anyway be affected or impaired thereby.
15.09 FURTHER ASSURANCES. The parties hereto shall with reasonable diligence
do all such things and provide all such reasonable assurances as may be required
to consummate the transactions contemplated hereby, and each party hereto shall
provide such further documents or instruments required by the other party as may
be reasonably necessary or desirable to effect the purpose of this Agreement and
carry out its provisions.
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15.10 NO JOINT VENTURE. Neither party hereto shall use the name, trademark or
other identification of the other party in any manner except as authorized by
the other party. Nothing contained herein shall be construed to (a) give either
party the power to direct or control the day-to-day activities of the other or
(b) constitute the parties as partners, joint ventures, co-owners or otherwise
as participants in a joint or common undertaking. All financial obligations
associated with each party's business is the sole and exclusive responsibility
of that party. Distributor shall not constitute, and shall take no action which
would cause it to be treated as, a "permanent establishment" of Developer within
the meaning of the tax laws of any country.
IN WITNESS WHEREOF, the parties have entered into this Agreement effective as of
the date provided above.
SYNCRONYS SOFTCORP
___________________________________________________
Per: Xxxxxx X. Xxxxxx, EVP - Marketing
ACCELERATION SOFTWARE INTERNATIONAL CORPORATION
___________________________________________________
Per: Xxxxx X. Xxxxxxx, C.E.O.
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