Exhibit 10.24
SOFTWARE LICENSE AGREEMENT
--------------------------
THIS SOFTWARE LICENSE AGREEMENT (the "Agreement") is made and entered into
as of this 27th day of February, 1997 (the "Effective Date"), by and between
QUALITATIVE MARKETING SOFTWARE, INC. ("Licensor"), a Delaware corporation with
its principal offices located at ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and COMPS INFOSYSTEMS, INC. ("Licensee"), a
Delaware corporation with its principal offices located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
R E C I T A L S:
WHEREAS, Licensor, as the result of the expenditure of time, skill, effort
and money, has designed, developed, and produced, and is the owner of the entire
right, title and interest in and to, certain software and databases and the
documentation associated therewith as more particularly described on Schedule A
----------
attached hereto (defined below, collectively, as the "Licensed Products"); and
WHEREAS, Licensee desires to obtain from Licensor, and Licensor desires to
grant to Licensee, a non-exclusive, non-transferable, non-assignable license to
use the Licensed Products solely for the Licensed Use, in accordance with the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, which shall be deemed an
integral part of this Agreement and not as mere recitals hereto, and in
consideration of the mutual covenants, representations, agreements and
conditions herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound thereby, agree as follows:
1. DEFINITIONS.
-----------
1.1 Definitions. As used in this Agreement, the following terms (which
appear herein as capitalized terms) shall have the meaning set forth below:
"Affiliate," when used with respect to any Person. shall mean any
----------
Person controlling, controlled by or under common control with such Person.
"Agreement" shall mean this Software License Agreement, as originally
---------
executed and as amended, modified or supplemented thereafter in accordance with
its terms.
CSF PW
--- --
Licensee Licensor
1
"Business Day" shall mean a day which is not a Saturday or a Sunday or
------------
a bank holiday under the laws of the United States.
"CASS" shall mean Coding Accuracy Support System as defined by the
----
USPS.
"CPU" shall mean a single computer central processing unit, including
---
its associated equipment.
"Communications" shall have the meaning specified in Section 22.l.
--------------
"Confidential Information" shall have the meaning specified in Section
------------------------
16. 1.
"Database Update" shall mean a change, modification or other update of
---------------
any Database.
"Databases" shall mean the directories and other files more
---------
particularly described on Schedule A attached hereto under the caption
----------
"Databases," as they exist on the Effective Date and any Database Updates
thereto.
"Designated CPU" shall mean a single computer central processing unit,
--------------
including its associated equipment, owned or leased by Licensee, the
manufacturer, operating system and location of which are specified on Schedule B
----------
attached hereto.
"Disputes" shall have the meaning specified in Section 23.5.
--------
"Documentation" shall mean the standard user manual or other
-------------
documentation or explanatory material related to the Licensed Software and the
Databases more particularly described on Schedule A attached hereto under the
caption "Documentation," developed by Licensor and supplied by Licensor to
Licensee for use in connection with the Licensed Software and the Databases, and
any subsequent versions thereof which Licensee may receive from Licensor.
"Effective Date" shall have the meaning specified in the first
--------------
sentence of this Agreement, which shall be deemed to be the date of execution of
this Agreement by Licensor and Licensee.
"Equipment" shall mean the hardware and other equipment comprising the
---------
system in which the Licensed Software and Databases are installed, including the
Designated CPU.
CSF PW
--- --
Licensee Licensor
2
"Initial License Fee" shall have the meaning specified in Section 3.1.
-------------------
"Initial Term" shall have the meaning specified in Section 4. 1.
------------
"License" shall mean the license granted to Licensee by Licensor
-------
pursuant to Section 2. 1.
"Licensed Products" shall mean the Licensed Software, the Databases
-----------------
arid the Documentation.
"Licensed Software" shall mean the object code (machine readable)
-----------------
version of Licensor's computer software program more particularly described on
Schedule A attached hereto under the caption "Licensed Software," as it exists
on the Effective Date and any Updates and Upgrades thereto. "Licensed Software"
shall not include the source code version.
"Licensed Use" shall mean and be restricted to the reading into and
------------
out of memory of the Licensed Software and the Databases and the execution of
the Licensed Software and the Databases, in whole or in part, by the Designated
CPU solely for the internal purposes of Licensee in connection with the
operation of the Licensee Services, and the utilization of the Documentation in
connection therewith. "Licensed Use" shall not include the transmission of any
of the Licensed Software or the Databases via any on-line service or
telecommunication network or on the Internet.
"Licensee" shall mean the entity specified in the first sentence of
--------
this Agreement as Licensee.
"Licensee Services" shall mean standardizing addresses and appending
-----------------
geographic coordinates to Licensee's data during data entry. Licensee will be
permitted to license its data to third parties, provided that Licensee is not in
violation of any other agreement, including the BLR Agreement for the BLR
Geocoding database.
"Licensor" shall mean the entity specified in the first sentence of
--------
this Agreement as Licensor.
"Losses" shall mean any and all claims, demands, costs, losses,
------
damages, liabilities, fines, penalties and expenses (including, without
limitation, reasonable attorneys' fees) of any kind or nature whatsoever,
whether imposed, incurred or asserted.
CSF PW
--- --
Licensee Licensor
3
"MSP" shall mean the Maintenance Support Program to be provided by
---
Licensor to Licensee hereunder in connection with the Licensed Products, as more
particularly described in Section 8.
"Person" shall mean any corporation, association, partnership, joint
------
venture, trust, organization, business, individual, government, governmental
agency or political subdivision thereof, or any other entity or institution of
any type whatsoever.
"Renewal Date" shall mean the first day of any Renewal Term.
------------
"Renewal License Fee" shall have the meaning specified in Section 3.2.
-------------------
"Renewal Term" shall have the meaning specified in Section 4.2.
------------
"Restrictions on Use" shall have the meaning specified in Section 2.l.
-------------------
"USPS" shall mean the United States Postal Service.
----
"Update" shall mean a change, modification or other update of the
------
Licensed Software made to correct an error (i.e., bug fix), defect or other
problem and/or to maintain the operational quality of the Licensed Software,
which is not an Upgrade.
"Upgrade" shall mean a new release of the Licensed Software, or any
-------
part thereof, which adds major new functionality or features to the last version
of the Licensed Software.
"Warranty Period" shall have the meaning specified in Section 12. 1.
---------------
2. GRANT OF LICENSE.
----------------
2.1 Grant of License. Subject to the terms and conditions set forth in
this Agreement (including the full payment of all license fees), Licensor hereby
grants to Licensee during the term of this Agreement, and Licensee hereby
accepts, a non-exclusive, non-transferable, non-assignable license (the
"License") (i) to use the Licensed Software and the Databases only on the
Designated CPU for the Licensed Use and (ii) to use the Documentation in support
of the Licensed Use, provided that, the License granted hereunder shall be
subject to the restrictions set forth on Schedule A attached hereto
----------
(collectively, the "Restrictions on Use").
CSF PW
--- --
Licensee Licensor
4
2.2 Licensed Use. The Licensed Software and the Databases may be used
only on the Designated CPU and the Licensed Products may be used solely to
process Licensee's own data in connection with the Licensee Services; it being
expressly understood and agreed by Licensee that "Licensed Use" shall not
include using the Licensed Products at the request of or for the benefit of any
third parties or otherwise transmitting data via any telecommunication source,
device or medium.
2.3 Additional Licenses. Licensee understands that the Licensed Software
and the Databases cannot be transferred to, or used in connection with, any CPU
that is not licensed by Licensor to operate the Licensed Software and the
Databases. In the event Licensee desires to use the Licensed Software and the
Databases on additional CPU(s), Licensee shall first obtain an additional
license from Licensor for the Licensed Software and Databases for each such
additional CPU(s). Licensee acknowledges that such additional licenses shall be
made available to Licensee at Licensor's then-prevailing license fees.
2.4 Upgrades. Some of the Upgrades produced by Licensor during the term
of this Agreement may include additional functionality or features which go
beyond the scope of the capabilities of the Licensed Software delivered by
Licensor pursuant to this Agreement and which require additional databases. If
Licensee requests any such Upgrade (including any additional databases),
Licensee acknowledges that this will require an additional license from Licensor
and that Licensee will be charged an additional license fee in connection
therewith.
2.5 Transfer of License. Licensee may not, directly or indirectly, sell,
assign, sublicense, lease, rent, distribute, or otherwise transfer the License,
the Licensed Products, or any rights therein to any other Person, or to any
other computer other than the Designated CPU, unless Licensee first obtains the
written consent of Licensor.
2.6 Non-Exclusive Nature. Licensee acknowledges and agrees that the
License granted hereunder and the relationship between the parties is non-
exclusive. Licensee further acknowledges and agrees that Licensor retains the
right to grant similar licenses to use the Licensed Products to other Persons.
2.7 No Sale and Purchase or Lease. Notwithstanding anything to the
contrary contained herein, the parties agree that this transaction is not a sale
and purchase nor a lease of the Licensed Products.
3. LICENSE FEES; OTHER CHARGES; TAXES.
----------------------------------
3.1 Initial License Fee. In consideration of the License and other rights
granted by Licensor to Licensee hereunder, Licensee shall pay to Licensor the
initial license fee set forth on Schedule C attached hereto (the "Initial
----------
License Fee") for the Initial Term, in accordance with
CSF PW
--- --
Licensee Licensor
5
the payment schedule set forth therein. Licensee acknowledges and agrees that
the Initial License Fee shall be deemed nonrefundable and fully earned by
Licensor upon payment thereof by Licensee in consideration of the administrative
and other expenses incurred by Licensor in granting the License to Licensee.
3.2 Renewal License Fee. In the event this Agreement and the License
granted hereunder are renewed pursuant to Section 4.2, Licensee shall pay to
Licensor the renewal license fee set forth on Schedule D attached hereto (the
----------
"Renewal License Fee") for each Renewal Term, in accordance with the payment
schedule set forth therein. Licensee acknowledges and agrees that the Renewal
License Fee shall be deemed non-refundable and fully earned by Licensor upon
payment therefor by Licensee.
3.3 Maintenance Support Program Fees. Except as otherwise set forth
herein, the fee for any Updates, Database Updates, Upgrades. or consulting or
other services relating to the Licensed Products which Licensor performs in
connection with the MSP shall be as set forth on Schedules C and D attached
----------- -
hereto, and shall be payable in accordance with the payment schedule set forth
therein. Licensee acknowledges and agrees that the MSP fees shall be deemed
nonrefundable and fully earned by Licensor upon payment therefor by Licensee.
3.4 Out-of-Pocket Expenses. All reasonable, pre-approved out-of-pocket
expenses incurred by Licensor in performing its obligations under this
Agreement, including but not limited to travel, meals, and lodging, shall be
paid by Licensee within thirty (30) days after Licensee's receipt of the invoice
therefor.
3.5 Payment; Interest Charges. Except as otherwise set forth herein, all
fees, charges and expenses to be paid by Licensee pursuant to this Agreement are
due and payable upon Licensee's receipt of Licensor's invoice therefor. All
amounts not paid when due shall bear interest at the rate of one and one-half
percent (1.5%) per month or at the highest contract rate allowed by law,
whichever is less, from the date due until paid, which interest shall be added
to the unpaid amount due and owing by Licensee to Licensor. Subject to the
right to cure set forth in Section 17.3.1, the failure of Licensee to pay any
amounts when due shall constitute sufficient cause for Licensor to suspend or
terminate this Agreement, including Licensor's obligation to provide the MSP
(including any Updates, Database Updates and Upgrades) and all express
warranties of Licensor under Section 12.l. In addition, Licensee agrees to pay
all costs involved in collecting overdue amounts, including reasonable
attorneys' fees.
3.6 Applicable Taxes. In addition to the fees and charges due hereunder,
Licensee shall be liable for all local, state and federal sales, use,
withholding, excise, personal property, value-added, or other similar taxes,
assessments or duties which may now or hereafter be imposed upon this Agreement
or which are based on or in any way relating to this Agreement, the Licensed
Products, or any services related thereto, excluding, however, taxes measured on
Licensor's income. Licensee shall pay or reimburse Licensor for any such taxes
and Licensor
CSF PW
--- --
Licensee Licensor
6
may add such taxes to the invoices submitted to Licensee by Licensor as provided
herein. Licensee agrees to indemnify Licensor as to all such taxes.
3.7 No Right of Setoff. Licensee shall have no right of setoff against
any payments due Licensor pursuant to this Agreement, whether on account of any
claims or alleged claims against Licensor under this Agreement or otherwise.
4. TERM; RENEWAL.
-------------
4.1 Term. The term of this Agreement shall commence on the Effective Date
and shall continue and remain in full force and effect for a period of one (1)
year from the Effective Date (the "Initial Term"), unless otherwise earlier
terminated in accordance with the provisions of Section 17.
4.2 Renewal. Except as otherwise provided herein, upon the expiration of
the Initial Term or any Renewal Term, as the case may be, this Agreement shall
be automatically renewed for an additional one (1) year period (each such year a
"Renewal Term") without notice unless no less than sixty (60) days prior to the
expiration of the Initial Term or any Renewal Term, as the case may be, either
party notifies the other party in writing of its intent not to renew this
Agreement. If no such notice is received within said time frame, Licensee shall
be deemed to have renewed this Agreement and shall pay for all charges and fees
in connection therewith in accordance with Section 3.2. Notwithstanding anything
to the contrary contained herein, this Agreement shall not be renewed if, at the
Renewal Date, any of the following conditions have not been satisfied (unless
waived by Licensor in writing):
4.2.1 Licensee shall not be in default in any payments due to
Licensor under this Agreement or any other agreement and shall have timely
met all such obligations;
4.2.2 Licensee shall not be in breach or violation of any of the
other terms, conditions or provisions of this Agreement or any other
agreement between Licensee and Licensor; and
4.2.3 Licensee shall have paid to Licensor the Renewal License Fee.
The determination as to the satisfaction of any of the above conditions by
Licensee is in the sole discretion of Licensor. Licensor may determine to
refuse to renew this Agreement, where any of the above conditions are not met,
at any time at or prior to the Renewal Date.
CSF PW
--- --
Licensee Licensor
7
5. PROPERTY RIGHTS.
---------------
5.1 Property Rights in Licensor. Licensee acknowledges that: (i) Licensor
owns the full right, title and interest in and to the Licensed Products and all
copies thereof, including all associated patents, copyrights, trademarks, trade
names, trade secrets and other intellectual property rights; (ii) all right,
title and interest in and to the Licensed Products and all copies thereof,
including all associated patents, copyrights, trademarks, trade names, trade
secrets and other intellectual property rights, are, and shall at all times
remain, the exclusive property of Licensor; and (iii) Licensee shall have no
right or interest as to the Licensed Products or any copies thereof, including
all associated patents, copyrights, trademarks, trade names, trade secrets and
other intellectual property rights, except as a licensee as expressly set forth
in this Agreement.
5.2 Third Party Data Files. Notwithstanding anything to the contrary
contained Herein, Licensor does not own, and Licensee shall have no right or
interest in, any third party data files used to prepare the Databases, including
any USPS data files. Licensor shall be responsible for paying all fees due to
third parties for the license of such data files.
5.3 BLR Geocoding File. Licensee acknowledges that the geocoding data is
being licensed directly from Business Location Research (BLR) and all license
fees due for such license shall be paid directly to BLR. Licensee further
acknowledges that Licensor will require written notice from BLR of such license.
In the event Licensee fails to maintain the license with BLR, or if said license
is canceled or terminated, the same shall not terminate this Agreement or
Licensee's obligations hereunder, including payment of the Initial License Fee
or Renewal License Fee, as the case may be. In the event the license for use of
the BLR Geocoding database between Licensee and BLR is terminated, Licensee will
pay Licensor the license fee for the QMS Geocoding database as set forth in
Schedule D attached hereto.
----------
6. DELIVERY OF LICENSED PRODUCTS; RISK OF LOSS.
-------------------------------------------
6.1 Delivery of Licensed Products. Within a reasonable time after the
Effective Date, Licensor shall furnish Licensee one (1) master copy of the
Licensed Products. Licensor shall not be liable to Licensee for any delay in
the delivery of the Licensed Products.
6.2 Risk of Loss. Upon delivery of the Licensed Products, Licensee
assumes all risk of loss with respect to the Licensed Products.
7. INSTALLATION; TRAINING.
----------------------
7.1 Installation. Licensee shall be solely responsible for installing the
Licensed Software and the Databases on the Designated CPU. Licensee may request
assistance from
CSF PW
--- --
Licensee Licensor
8
Licensor in the installation of the Licensed Software and the Databases, which
services shall be charged to Licensee at Licensor's then-current hourly rates.
7.2 Data Entry. Data entry and verification of the data input to and
output from the Licensed Software and the Databases shall be the sole
responsibility of Licensee. Licensee shall be responsible for the conversion of
its current data to the format required by the Licensed Software and the
Databases.
7.3 Training. No training in the use of the Licensed Products will be
provided by Licensor. Licensee may request training assistance from Licensor,
which training shall be charged to Licensee at Licensor's then-current hourly
rates.
8. MAINTENANCE SUPPORT PROGRAM.
---------------------------
8.1 Maintenance Support Program. During the Initial Term and each Renewal
Term of this Agreement, Licensor agrees to provide and Licensee agrees to accept
the maintenance and support services with respect to the most current version of
the Licensed Software and Databases as set forth in this Section 8. The fees for
such maintenance and support services are set forth on Schedules C and D
----------- -
attached hereto.
8.2 Updates. Licensor will make reasonable efforts to correct any
material errors in the most current version of the Licensed Software and
Databases from time to time and shall provide Licensee with copies of all
Updates and Database Updates as they are released and made generally available
by Licensor to its customers from time to time; provided that Licensor shall use
its best efforts to provide the Database Updates to Licensee every two (2)
months. All Updates and Database Updates shall be owned by Licensor and shall
be subject to the terms and conditions of this Agreement.
8.3 Upgrades. Subject to the provisions of Section 2.4, Licensor agrees
to provide Licensee with copies of all Upgrades as they are released and made
generally available by Licensor to its customers from time to time. All
Upgrades shall be owned by Licensor and shall be subject to the terms and
conditions of this Agreement.
8.4 Negation of MSP and Express Warranties. Licensee understands and
acknowledges that the Licensed Software and the Databases will become dated and
will be automatically rendered inoperable if Licensee fails to install any
Licensed Software or Database within thirty (30) days of its receipt of same
from Licensor. If Licensee so fails to install any Licensed Software or
Database, all obligations of Licensor as to the MSP and all warranties of
Licensor under Section 12.1 shall terminate and be null and void and of no
further force and effect.
CSF PW
--- --
Licensee Licensor
9
8.5 Telephone Support. Licensor shall provide telephone support to
Licensee out of its service office in Boulder, Colorado on Monday through Friday
(holidays excluded) between the Hours of 8:00 a.m. and 5:00 p.m., Mountain
Standard Time, with respect to questions regarding the use of the most current
version of the Licensed Products. Hours of service are subject to change at any
time by Licensor without notice. This telephone support shall be available to
Licensee at no cost beyond the fees set forth on Schedules C and D attached
----------- -
hereto, provided the frequency and length of calls are reasonable.
8.6 Costs of Excluded Items. If it is determined by Licensor that any
apparent problem with the Licensed Products that is reported to Licensor by
Licensee is due to the acts or omissions of Licensee or its employees, hardware
problems, use of unqualified personnel, user error, alteration of the Licensed
Products by Licensee or any third party, the use of an out-of-date version of
the Licensed Products, or failure to comply with the terms and conditions of
this Agreement, Licensor shall notify Licensee and such time and expenses
associated with such support effort shall be billed by Licensor at its then-
current hourly rates and paid by Licensee within thirty (30) days of its receipt
of the invoice therefor.
8.7 On-Site Services. Licensor shall have no obligation to provide any
services at Licensee's site.
8.8 Hardware Maintenance. Licensor shall have no obligation to provide
maintenance or repair for any hardware or associated operated system. Hardware
maintenance shall be the sole responsibility of Licensee.
8.9 No Additional Services. Licensor is under no obligation to provide
any additional services and any agreements for same will be separate from and in
addition to this Agreement at Licensor's then-current hourly rates plus
expenses.
9. REPRODUCTION OF LICENSED PRODUCTS.
---------------------------------
9.1 Licensed Software and Databases. The Licensed Software and the
Databases may not be copied or duplicated by Licensee, in whole or in part,
except that Licensee may copy the Licensed Software and the Databases solely for
use on the Designated CPU or for necessary security back-up purposes. The
original and all copies of the Licensed Software and the Databases, in whole or
in part, which are made or used by or in the possession of Licensee shall be and
shall remain the property of Licensor and shall be kept by Licensee at the
location of the Equipment in which they are first installed as set forth on
Schedule B attached hereto.
----------
9.2 Documentation. In no event may Licensee copy or duplicate, or
transmit via any medium, in whole or in part, the Documentation, but additional
copies of the Documentation will
CSF PW
--- --
Licensee Licensor
10
be made available to Licensee upon request at a nominal fee for copying and
shipping and Handling.
10. MODIFICATION OF LICENSED SOFTWARE AND DATABASES.
-----------------------------------------------
10.1 No Modification by Licensee. Licensee shall not alter, modify,
change, decompile, disassemble or reverse engineer the Licensed Software or any
Database.
10.2 Merger of Licensed Software. Licensee may, at its expense, merge the
Licensed Software into other software programs to form an updated work for the
Licensed Use, provided such resulting merged software shall be subject to all of
the terms and conditions of this Agreement.
11. PROTECTION OF TRADE SECRETS.
---------------------------
11.1 Licensed Products. Licensee agrees that the Licensed Products and
all associated patents, copyrights, trademarks, trade names, trade secrets and
other intellectual property rights are the exclusive property, and constitute a
valuable trade secret, of Licensor. Licensee agrees not to seek to discover or
to disclose any of Licensor's trade secrets by disassembling, decompiling or
otherwise reverse engineering the Licensed Software or Databases. Licensee
shall not disclose, disseminate, transmit via any medium whatsoever, or make
available the Licensed Products, or any portion thereof, to third parties
without Licensor's prior written consent.
11.2 Source Code. The source code for the Licensed Software shall not be
disclosed or made available to Licensee. Licensee shall not create, derive or
discover, or attempt to create, derive or discover, by reverse compiling,
reverse engineering, reverse assembling or otherwise, the source code for the
Licensed Software or any part thereof from the object code format or from other
information made available to Licensee under this Agreement or otherwise.
12. LIMITED WARRANTY AND DISCLAIMER.
-------------------------------
12.1 Limited Warranty. Licensor warrants that, for a period of ninety
(90) days from the date of shipment of any Licensed Software or Database to
Licensee (the "Warranty Period"), such Licensed Software or Database, as the
case may be, will perform substantially according to its product description as
specified in the Documentation under normal use and that the diskettes and/or CD
ROMs on which the Licensed Software and Databases furnished to Licensee are
recorded will be free from defects in materials and workmanship. The foregoing
warranty shall be null and void and of no force and effect if the Licensed
Software or Database fails to perform as a result of accident, neglect or
misuse, user error, electrical power damage, or in the event that all or any
part of the Licensed Software or Database is installed improperly or on any
computer
CSF PW
--- --
Licensee Licensor
11
equipment other than the Designated CPU or used with any operating system for
which the Licensed Software or Database is not designed, or if the Licensed
Software or Database is altered or modified or is incorrectly merged with other
software by Licensee or any third party.
12.2 Sole and Exclusive Remedy. Licensee acknowledges that Licensor's
sole obligation and liability and Licensee's sole and exclusive remedy for a
breach of the express warranty under Section 12.1 shall be the replacement or
repair of any Licensed Software or Database and/or diskette(s) and/or CD ROM(S)
not meeting Licensor's limited warranty, provided that Licensor receives, during
the applicable Warranty Period, written notice of a defect or other problem and
Licensee thereafter promptly returns the Licensed Products to Licensor for
replacement or repair. If Licensor is unable to deliver such a replacement or
make such repair within a reasonable period of time thereafter (which in no
event shall be less than sixty (60) days after its receipt of the Licensed
Products), Licensee may terminate this Agreement by returning the Licensed
Products to Licensor, and Licensor shall thereafter refund to Licensee that
portion of the Initial License Fee or the Renewal License Fee, as the case may
be, paid by Licensee which is attributable to the remaining portion of the
Initial Term or the Renewal Term, as the case may be (commencing with the date
of Licensor's receipt of the Licensed Products as described in the preceding
sentence) as full payment of all obligations of Licensor pursuant to this
Agreement.
12.3 Warranty Disclaimer. THE FOREGOING LIMITED WARRANTY IS IN LIEU OF
ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, AND CONSTITUTES THE
SOLE AND EXCLUSIVE WARRANTY OF LICENSOR WITH RESPECT TO THE LICENSED PRODUCTS.
EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN SECTION 12.1, LICENSOR
SPECIFICALLY DISCLAIMS, AND LICENSEE RELEASES AND WAIVES, ALL WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE AND PURPOSE OR ANY WARRANTY
ARISING UNDER STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING, COURSE OF
PERFORMANCE OR USAGE OF TRADE. Without limiting the generality of the
foregoing, Licensor does not warrant that the Licensed Software or any Database
is accurate or will meet Licensee's requirements, will operate in any
combination that may be selected for use by Licensee or in combination with
other software, or will operate uninterrupted or error free. Furthermore,
Licensor does not warrant that all software errors, defects or inefficiencies
will be corrected, nor does Licensor assume any liability for failure to correct
any such error, defect or inefficiency. Licensor makes no warranty, and
Licensee assumes the entire risk, as to the integrity of any data and the
results, capabilities, suitability, use or performance of the Licensed Products.
IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE FOR ANY DAMAGES RESULTING FROM
OR RELATED TO THE USE OR PERFORMANCE OF THE LICENSED PRODUCTS.
CSF PW
--- --
Licensee Licensor
12
13. LIMITATION OF LIABILITY.
-----------------------
IT IS UNDERSTOOD AND AGREED THAT LICENSOR'S TOTAL LIABILITY UNDER THIS
AGREEMENT, IF ANY, FOR ANY DAMAGES SUFFERED BY LICENSEE, ANY PARTY CLAIMING ON
BEHALF OF OR THROUGH LICENSEE, OR ANY OTHER THIRD PARTY, WHETHER IN CONTRACT, IN
TORT, UNDER ANY WARRANTY THEORY, IN NEGLIGENCE, OR OTHERWISE, SHALL BE LIMITED
TO DIRECT DAMAGES AND SHALL NOT EXCEED THE AMOUNT OF FEES PAID TO LICENSOR BY
LICENSEE PURSUANT TO THIS AGREEMENT FOR THE LICENSED PRODUCTS FOR THE SIX (6)
MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO ANY SUCH CLAIM. THE
LICENSE FEE CHARGED HEREIN IS A CONSIDERATION IN LIMITING LICENSOR'S LIABILITY
HEREUNDER. LICENSEE UNDERSTANDS THAT UNDER NO CIRCUMSTANCES SHALL LICENSOR BE
LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES SUFFERED BY LICENSEE, ANY PARTY CLAIMING ON BEHALF OF OR
THROUGH LICENSEE, OR ANY OTHER THIRD PARTY RESULTING FROM OR ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, INCLUDING LOSS
OF BUSINESS OR PROFITS, BUSINESS INTERRUPTION, OR DAMAGE OR DESTRUCTION OF DATA,
EVEN IF LICENSOR HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NO ACTION, REGARDLESS OF FORM OR BASIS, ARISING OUT OF THE TRANSACTIONS UNDER
THIS AGREEMENT MAY BE BROUGHT BY LICENSEE MORE THAN ONE (1) YEAR AFTER LICENSEE
KNEW OR SHOULD HAVE KNOWN OF THE OCCURRENCE OF THE EVENT(S) WHICH GAVE RISE TO
SUCH ACTION.
14. PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY.
--------------------------------------------
14.1 Right to License. Licensor represents and warrants that it is the
owner of the Licensed Products (except as disclosed in Section 5.2 as to any
third party data files) and that it has the right and authority to grant the
License hereunder with respect to the Licensed Products.
14.2 Notification to Licensor. In the event Licensee has any knowledge of
any infringement of, litigation instituted with respect to, or challenge to, the
Licensed Products by any Person, Licensee shall immediately notify Licensor.
Additionally, in such event, Licensee shall immediately furnish to Licensor
copies of all correspondence, notices, advertising, complaints, legal documents,
and other written materials relating to any such infringement, litigation or
challenge which it may have in its possession.
14.3 Investigation, Defense and Indemnification. Licensor agrees to
investigate promptly and defend Licensee against any claim, demand, suit or
action brought against Licensee based on any claim that the use by Licensee of
the then-current version of the Licensed Products delivered by Licensor to
Licensee infringes any existing United States patent, copyright or trade secret
of any third party, provided Licensee (i) provides timely notice of any such
claim,
CSF PW
--- --
Licensee Licensor
13
demand, suit or action to Licensor, (ii) is not using the Licensed Products in
an unauthorized manner, and (iii) agrees to cooperate fully with Licensor and to
execute any and all documents and take any and all action deemed necessary or
advisable by Licensor to protect the Licensed Products and Licensor's interests
therein. If all of the conditions in (i)-(iii) are met, Licensor agrees to
assume the defense of such claim, demand, suit or action, with counsel of
Licensor's choice, and indemnify and hold harmless Licensee from and against any
and all damages and costs (including reasonable attorneys' fees) finally awarded
by a court against Licensee as a result of any such claim, demand, suit or
action; provided that Licensor's obligation to pay damages and costs shall not
exceed the total sum specifically set forth in Section 13, and provided further
that Licensor will not be responsible for any damages or costs under any
compromise made by Licensee without Licensor's written consent. In the event
Licensor decides to assume the defense of any such claim, demand, suit or action
and so indemnify Licensee, Licensee shall be bound by the terms of any
settlement agreement entered into by Licensor.
14.4 Non-infringing Use. If, in Licensor's opinion, any of the Licensed
Products are likely to become the subject of a claim for infringement or if, as
a result of any such claim, demand, suit or action, Licensee is enjoined from
using any of the Licensed Products, Licensor may, at its own expense and at its
option, (i) procure for Licensee the right to continue using such Licensed
Product, (ii) replace the same with non-infringing software of equivalent
function or performance, or (iii) modify such Licensed Product so that it
becomes non-infringing. If none of these options is reasonably practical,
Licensor may terminate this Agreement, whereupon Licensor shall refund to
Licensee that portion of the Initial License Fee or Renewal License Fee, as the
case may be, paid by Licensee which is attributable to the remaining portion of
the Initial Term or the Renewal Term, as the case may be, as full payment of all
obligations of Licensor pursuant to this Agreement.
14.5 No Further Indemnity. Licensor shall have no obligation with respect
to any such infringement claim based upon Licensee's modification of the
Licensed Products or their combination, merger, operation or use with equipment,
data, software or other items not furnished by Licensor, provided such
infringement would have been avoided but for such combination or merger. EXCEPT
AS SPECIFICALLY PROVIDED IN THIS SECTION 14, LICENSOR SHALL HAVE NO LIABILITY TO
LICENSEE FOR THE INFRINGEMENT OF ANY PATENTS, COPYRIGHTS, TRADE SECRETS OR OTHER
PROPRIETARY RIGHTS BY THE LICENSED PRODUCTS OR ANY PORTION THEREOF.
15. LICENSEE INDEMNIFICATION.
------------------------
Licensee hereby agrees to indemnify and hold harmless Licensor, its
officers, directors, shareholders, employees, agents, insurers, attorneys,
successors, and assigns from and against any and all Losses resulting directly
or indirectly from (i) any and all acts and omissions of Licensee, its
employees, or agents with respect to the Licensed Products, including, without
limitation, Licensee's negligent or intentional misrepresentation of Licensor or
the Licensed Products, the use, operation or possession of the Licensed Products
by Licensee, or any breach of any term or provision of this Agreement by
Licensee, and (ii) any claim, demand, suit or action
CSF PW
--- --
Licensee Licensor
14
brought against Licensor that Licensee's use of its software programs infringes
the intellectual property of a third party.
16. CONFIDENTIAL INFORMATION; NON-SOLICITATION.
------------------------------------------
16.1 Confidential Information. Licensee acknowledges and agrees that the
Licensed Products are protected by the law of copyright, are very valuable,
special and unique assets of Licensor, and contain trade secrets and proprietary
information, and that Licensor has a proprietary interest in such Licensed
Products and all ideas, trade secrets, procedures, processes, methods, systems,
techniques, algorithms and concepts contained therein or related thereto,
whether disclosed orally or in writing or by any other media (collectively, the
"Confidential Information"), and such Confidential Information shall remain the
sole and exclusive property of Licensor. In performance of its duties
hereunder, Licensor will also be receiving information deemed confidential by
Licensee (also, "Confidential Information"). The party receiving any such
Confidential Information (the "Receiving Party") shall hold such Confidential
Information in strictest confidence, for the exclusive use of the Receiving
Party, and the Receiving Party will not take any action in derogation of such
confidentiality and agrees that its use and disclosure of the Confidential
Information must be continuously controlled. The Receiving Party shall take all
reasonable steps to insure that the Confidential Information is not used by or
made available or furnished or disclosed to any Person (other than the Receiving
Party's employees directly concerned with the Licensed Use and who need such
disclosure for the conduct of their ordinary responsibilities), including, but
not limited to, taking all steps it takes to protect information, data or other
tangible and intangible property of its own that it regards as proprietary or
confidential. The Receiving Party shall instruct its employees and agents
having access to the Confidential Information regarding the terms and
limitations contained in this Section 16.
16.2 Non-Confidential Information. Information shall not be deemed
"Confidential Information" which:
16.2.1 is or has become publicly known as of the date of receipt by
the Receiving Party other than through disclosure by the Receiving Party;
or
16.2.2 is already in the possession of, or actually and demonstrably
is known to, the Receiving Party at the time of disclosure; or
16.2.3 is approved for public release by written authorization from
the party disclosing any Confidential Information.
16.3 Non-Solicitation; Non-Competition. In consideration of Licensor's
transmittal of the Confidential Information to Licensee, Licensee agrees that,
during the term of this Agreement and for a period of two (2) years thereafter,
neither it nor any of its Affiliates:
CSF PW
--- --
Licensee Licensor
15
16.3.1 shall, directly or indirectly, solicit, hire or otherwise
retain as an employee or independent contractor any present or former
employee of or consultant to Licensor who was assigned to the development,
marketing or maintenance of any part of the Licensed Products, nor solicit,
encourage or request any such employee to leave the employ of Licensor; or
16.3.2 shall compete, directly or indirectly, with Licensor in the
creation, manufacture, sale, licensing, marketing or distribution of
software programs and materials which are similar to or which compete with
the Licensed Products within the geographic areas in which the Licensed
Products are then offered for sale or license; provided, however, that this
provision shall not prohibit Licensee from developing a software program
for internal business purposes only.
16.4 Specific Performance. Each party specifically agrees that any breach
of this Section 16 will result in irreparable injury to the other party and the
other party shall be entitled (without the necessity of posting any bond or
establishing the inadequacy of damages as a remedy) to specific performance and
injunctive relief to correct and/or enjoin any such breach or threatened breach
in addition to all other remedies which might be available. In the event any
such action is brought by Licensor, the parties hereby agree that the United
States District Court for the Middle District of Florida, Tampa Division shall
have exclusive Jurisdiction to hear and determine any such action. In the event
any such action is brought by Licensee. the parties hereby agree that the United
States District Court for the County of San Diego shall not have exclusive
jurisdiction to hear and determine any such action. Each party hereby expressly
submits and consents in advance to such jurisdiction and venue in any such
action and agrees that service of any summons and complaint, or other process or
papers, may be made by registered or certified mail, return receipt requested,
addressed to such party at the address to which notices are to be sent pursuant
to Section 22.1 hereof.
16.5 Independent Covenants The covenants and agreements of the parties
set forth in this Section 16 shall be construed as agreements independent of any
other provision of any agreement, and the existence of any claim or cause of
action, whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement of the covenants and agreements contained herein.
17. TERMINATION OF AGREEMENT.
------------------------
17.1 By Licensor or Licensee. This Agreement and the License and other
rights granted hereunder may be terminated by Licensor or Licensee:
17.1.1 at the end of the Initial Term or any Renewal Term by giving
the other party written notice of its intent not to renew no less than
sixty (60) days prior to the expiration of the Initial Term or any Renewal
Term, as the case may be; or
CSF PW
--- --
Licensee Licensor
16
17.1.2 immediately where the other party (the "breaching party")
breaches any term or provision of this Agreement (excluding any failure to
make any payment hereunder, which shall be governed by Section 17.3. 1) and
fails to cure such breach within thirty (30) days after written notice of
such breach from the non-breaching party.
17.2 By Licensee Only. This Agreement and the License and other rights
granted hereunder may be terminated by Licensee as set forth in the last
sentence of Section 12.2.
17.3 By Licensor Only. This Agreement and the License and other rights
granted hereunder may be terminated immediately by Licensor by written notice to
Licensee:
17.3.1 where Licensee fails to make any payment hereunder when due,
and fails to cure such breach within ten (10) days after the due date of
payment; or
17.3.2 in the event (i) of an assignment by Licensee for the benefit
of creditors; (ii) Licensee shall become insolvent, or shall be unable to
pay its debts as they mature, or shall admit in writing its inability to
pay its debts as they mature; (iii) of Licensee's dissolution or loss of
charter by forfeiture; (iv) Licensee is adjudged bankrupt or insolvent by a
United States court of competent jurisdiction; (v) a trustee or receiver is
appointed for Licensee or its assets or any substantial part thereof, (vi)
Licensee files a voluntary petition under any bankruptcy or other similar
law providing for its reorganization, dissolution or liquidation, or any
involuntary petition under any bankruptcy or other similar law is filed
against Licensee; (vii) Licensee shall consent to the appointment of a
receiver or a trustee for itself or its assets or of any substantial part
thereof, or (viii) any substantial part of Licensee's property becomes
subject to any levy, seizure, assignment, application, or sale for or by a
creditor or government agency; or
17.3.3 in the event Licensee breaches any of the provisions of
Sections 2.5, 10.1, 11 or 16; or
17.3.4 as set forth in Section 14.4.
18. EFFECT OF TERMINATION.
---------------------
18.1 Effect of Termination. Immediately upon any termination,
cancellation or expiration of this Agreement or of any License granted hereunder
for any reason:
18.1.1 all rights and Licenses granted to Licensee under this
Agreement shall cease and terminate and Licensee shall have no right
thereafter to use, and shall cease the use of, the Licensed Products or any
portion thereof,
CSF PW
--- --
Licensee Licensor
17
18.1.2 Licensee shall return the originals of the Licensed Products
and all copies thereof, in whole or in part, to Licensor;
18.1.3 Licensee shall remove the Licensed Software and Databases and
all portions thereof from any merged software, including as permitted
pursuant to Section 10.2;
18.1.4 Licensee shall pay to Licensor any and all outstanding fees,
charges, payments and expenses due pursuant to this Agreement;
18.1.5 Licensor shall have the right, at any time, to take possession
of the Licensed Products and all copies thereof wherever located, without
demand or notice; and
18.1.6 Licensor may cease performance of all of Licensor's
obligations hereunder without liability to Licensee, including the MSP
(which will cause the Licensed Software and the Databases to become dated
and automatically rendered inoperable) and all express warranties contained
under Section 12. 1.
18.2 Certification by Licensee. Within ten (10) days following the date
of termination, cancellation or expiration of this Agreement, Licensee shall
certify in writing to Licensor its compliance with the provisions of Section 18.
1.
18.3 Survival. The provisions of Sections 3.6, 5.1, 12, 13, 15, 16, 18.1,
18.2, 23.4 and 23.5 shall survive the termination, cancellation or expiration of
this Agreement for any reason.
19. FORCE MAJEURE.
-------------
Licensor shall not be liable to Licensee for any delay or failure by
Licensor in the performance of its obligations under this Agreement or otherwise
if such delay or failure arises from any cause or causes beyond the control of
Licensor including, without limitation, labor shortages or disputes, strikes,
other labor or industrial disturbances, delays in transportation, acts of God,
floods, lightning, fire, epidemic, shortages of materials, rationing, utility or
communication failures, earthquakes, casualty, war, acts of the public enemy, an
act of civil or military authority, sabotage, explosives, riots, insurrections,
embargoes, blockades, actions, restrictions, regulations or orders of any
government, agency or subdivision thereof, or failure of suppliers.
CSF PW
--- --
Licensee Licensor
18
20. EXPORT REGULATIONS; U.S. GOVERNMENT RESTRICTIONS.
------------------------------------------------
20.1 Export Regulations. Licensee acknowledges that the Licensed Products
and any direct products thereof may be subject to United States export laws,
statutes and regulations, and that Licensee will at all times comply with the
provisions of such laws, statutes and regulations including obtaining any
necessary or required licenses. Licensee shall not export or re-export or
otherwise transmit, directly or indirectly, the Licensed Products or any direct
products thereof into, or use the Licensed Products or any direct products
thereof in, any country prohibited or restricted under United States export
laws, statutes or regulations or any other applicable laws.
20.2 U.S. Government Restrictions. The Licensed Products are provided
with Restricted Rights. Use, duplication or disclosure by the United States
Government is subject to restrictions as set for in subparagraph (c)(1)(ii) of
The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013
or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted
Rights at 48 CFR 52.227, as applicable.
21. INDEPENDENT CONTRACTOR RELATIONSHIP.
-----------------------------------
21.1 Independent Contractors Only. The relationship of Licensor and
Licensee is that of independent contractors, and nothing contained in this
Agreement shall be construed to (i) give either party the power to direct and
control the day-to-day activities of the other, (ii) constitute the parties as
partners, joint venturers, co-owners or otherwise as participants in a joint or
common undertaking, (iii) allow either party to act on behalf of or bind the
other party or create or assume any obligation on behalf of the other party for
any purpose whatsoever, or (iv) create any ownership interest in Licensee or any
other Person as to the Licensed Products. All financial obligations associated
with Licensee's business are the sole responsibility of Licensee.
22. COMMUNICATIONS.
--------------
22.1 Communications. Whether expressly so stated or not, all notices,
demands, requests and other communications required or permitted by or provided
for in this Agreement (collectively, "Communications") shall be given in writing
to the parties at their respective addresses set forth above in the first
sentence of this Agreement, or at such other address as a party shall designate
for itself in writing in accordance with this Section 22. Communications may be
transmitted (i) by personal delivery, (ii) by delivery by messenger, express or
air courier, or similar courier, or (iii) by delivery by United States first
class certified or registered mail, postage prepaid. Except as otherwise
provided in this Agreement, delivery or service of any Communication shall be
deemed effective only upon receipt; provided, any Communication received after
5:00 p.m. local time of place of receipt, or on a day other than a Business Day,
shall be deemed received on the next succeeding Business Day.
CSF PW
--- --
Licensee Licensor
19
22.2 Change of Address. Each party agrees to provide the other party at
least ten (10) days advance notice of any change in its principal business
location. In addition, Licensee agrees to provide Licensor at least ten (10)
days advance notice of any change in the location of Designated CPU.
3. MISCELLANEOUS PROVISIONS.
------------------------
23.1 Entire Agreement. This Agreement, including all of the Schedules
referenced herein and attached hereto, constitutes the entire agreement between
the parties hereto pertaining to the subject matter hereof, and supersedes,
supplants, and renders null and void any and all prior and contemporaneous
negotiations, discussions, proposals, agreements, understandings,
representations or communications, oral or written, of the parties hereto with
respect to the subject matter hereof
23.2 Binding Effect. This Agreement shall be binding upon, inure to the
benefit of, and be enforceable by the parties hereto and their respective
successors and permitted assigns.
23.3 Amendment. This Agreement may be amended only by a writing duly
executed by the authorized representatives of the parties hereto which makes
specific reference to this Agreement.
3.4 Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Florida, without regard to
the choice of law provisions of that State.
3.5 Arbitration of Disputes. Except as otherwise expressly provided
herein, all claims, disputes and other matters in question arising out of or
relating to this Agreement, including the breach or interpretation hereof
(collectively, "Disputes"), shall be resolved by arbitration in Tampa, Florida
(if initiated by Licensor) or San Diego, California (if initiated by Licensee)
by a panel of three (3) arbitrators. Either party may initiate arbitration by
giving the other party written notice containing a brief description of the
Dispute(s) to be arbitrated and the monetary amount involved. If the parties
are unable to agree as to the settlement of the Dispute within ten (10) days of
such written notice, then, within twenty (20) days of such written notice, each
party shall select an arbitrator and the two arbitrators selected by the parties
shall select a third arbitrator. Any arbitrator selected hereunder shall be a
commercial person knowledgeable in data processing and the licensing of computer
software. No person shall serve as an arbitrator who has, or has had, any
expectation of acquiring any business or financial relationship with either of
the parties hereto or who has acquired from either party or any other source
detailed prior knowledge of the matter in dispute. A decision by a majority of
the panel of arbitrators, when reduced to writing and signed by the arbitrators,
shall be final and binding upon the parties and judgment thereon may be entered
by any court of competent jurisdiction. Any award of the panel of arbitrators
shall include an award of reasonable attorneys' fees and costs and interest for
CSF PW
--- --
Licensee Licensor
20
such period as shall fully compensate the party in whose favor the award is
entered for the loss of use of the funds in question. The parties shall use
their best efforts to assure that all arbitration proceedings shall be held and
conducted so that the panel's award shall be rendered in writing within sixty
(60) days after the arbitration has been initiated. Any arbitration under this
Agreement shall be subject to and conducted in accordance with the rules and
procedures of the American Arbitration Association for commercial arbitration in
effect at the time arbitration is initiated.
23.6 Assignment. Neither party may assign or transfer its rights or
obligations under this Agreement except with the express written consent of the
other party; provided, however, that a successor in interest by merger, by
operation of law, purchase or otherwise of the entire business of either party
shall acquire all rights and obligations of such party hereunder without the
necessity of obtaining prior written consent. Any assignment without such
consent shall be null and void and of no force and effect.
23.7 Waiver. No party to this Agreement shall be deemed to have waived
any of its rights, powers or remedies under this Agreement unless such waiver is
expressly set forth in a writing signed by the waiving party. No written waiver
of any provision of this Agreement shall be deemed to be, or shall constitute,
(i) a waiver of any other provision of this Agreement, whether or not similar,
or (ii) a continuing or subsequent waiver of the same or another provision of
this Agreement. The failure of either party to enforce at any time any of the
provisions of this Agreement, or the failure to require at any time performance
by the other party of any of the provisions of this Agreement, will in no way be
construed to be a present or future waiver of any such provisions, or in any way
affect the validity of either party to enforce each and every such provision
thereafter.
23.8 Captions. The captions and headings of Sections and subsections
contained in this Agreement are provided for convenience of reference only and
shall not be considered a part hereof for purposes of interpreting this
Agreement, and, therefore, such captions and headings do not define, modify,
limit, describe or affect in any way the meaning or intent of this Agreement or
any of its terms or provisions.
23.9 Gender, Etc. Whenever the context shall require, the use of the
masculine gender herein shall be deemed to include the feminine gender and the
neuter gender, and the use of the singular or the plural herein shall be deemed
to include the plural or the singular, as the case may be.
23.10 Severability. If any Section or other provision of this Agreement,
or the application of such Section or provision, is held invalid, then the
remainder of this Agreement, and the application of such Section or provision to
persons or circumstances other than those with respect to which it is held
invalid, shall not in any way be affected or impaired thereby. In the event
that any provision of this Agreement becomes or is declared by a court of
competent jurisdiction or panel of arbitrators to be illegal, unenforceable or
void, this Agreement shall
CSF PW
--- --
Licensee Licensor
21
continue in full force and effect without said provision. The parties agree to
negotiate in good faith a substitute valid and enforceable provision that most
nearly effects the parties' intent and to be bound by the mutually agreed
substitute provision. Notwithstanding anything to the contrary contained herein,
if any of the provisions of Section 16 are found to be invalid, then the parties
hereto agree to enter into such other agreement as will validly afford, to the
greatest extent possible, the protection intended by that Section.
23.11 Parties in Interest. Nothing in this Agreement, express or implied,
is intended to confer any rights, benefits or remedies under or by reason of
this Agreement on any Person other than the parties to it and their respective
successors and permitted assigns, nor is anything in this Agreement intended to
relieve or discharge any obligation of any third Person to any party hereto or
give any third Person any right to subrogation or action over or against any
party to this Agreement.
23.12 No Presumption. In the event of any uncertainty in the terms of
this Agreement, there shall exist no presumption against either party that such
uncertainty arose from the preparation of this Agreement by such party.
23.13 Any Inconsistencies. To the extent there is any inconsistency
between this Agreement, on the one hand, and any purchase order or other
document issued in connection with this Agreement, on the other hand, this
Agreement shall control over any inconsistency appearing in any purchase order
or other document issued in connection with this Agreement.
23.14 Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original and
all of which together shall constitute one and the same instrument, and in
making proof hereof it shall not be necessary to produce or account for more
than one such counterpart.
23.15 Attorneys' Fees and Costs of Enforcement. The parties hereto agree
that should it become necessary for any party hereto to employ an attorney to
enforce any of its rights hereunder against any other party hereto, the
prevailing party shall be entitled, in addition to any other rights and remedies
it may have, to reimbursement from the non-prevailing party of all costs and
expenses, including reasonable attorneys' fees, costs of arbitration and court
costs.
23.16 Computation of Time. Except as is otherwise expressly provided in
this Agreement, all periods of time shall be computed by including Saturdays,
Sundays and holidays.
23.17 Approval of Licensor. Whenever this Agreement requires or provides
for any approval, acceptance, waiver or consent by Licensor, such approval,
acceptance, waiver or consent must in every case be in writing.
CSF PW
--- --
Licensee Licensor
22
23.18 Further Assurances. Each party agrees to execute and deliver any
and all papers, documents and instruments or take such further actions as the
other party may reasonably require to carry out the terms of this Agreement.
23.19 Remedies. All remedies shall be cumulative and not alternative and
in addition to all other rights and remedies available in law and in equity.
23.20 Recitals. The parties hereby agree that each and all of the
Recitals set forth herein are true and correct and are incorporated by this
reference and made a part of this Agreement for all purposes.
23.21 Other Rules of Construction. For purposes of this Agreement, the
following rules of construction shall also apply, whether expressly so stated or
not:
23.21.l All of the Schedules referred to in this Agreement shall be
deemed incorporated into this Agreement by this reference and made a part
of this Agreement for all purposes as if fully set forth in this Agreement.
23.21.2 References in this Agreement to Sections and Schedules are
references to Sections of and Schedules attached to this Agreement, except
as expressly otherwise indicated.
23.21.3 Any phrase containing the term "include" or "including"
shall mean including without limitation.
23.21.4 Unless the context requires otherwise, the words "herein,"
"hereof," "hereunder," and other words of similar import refer to this
Agreement as a whole and not to any particular section, subsection or
clause.
23.21.5 Unless the context requires otherwise, any reference to a
statute shall include and shall be deemed to be a reference to such
statute, or any successor statute to such statute, and to the regulations
promulgated thereunder, with all amendments made thereto and in force from
time to time.
CSF PW
--- --
Licensee Licensor
23
IN WITNESS WHEREOF, Licensor and Licensee have executed this Agreement as
of the Effective Date.
COMPS INFOSYSTEMS, INC. QUALITATIVE MARKETING SOFTWARE, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇
------------------------------ ----------------------------
Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Print Name: ▇▇▇▇ ▇▇▇▇
----------------------
Title: V.P. Marketing Title: President
---------------------------
"Licensee" "Licensor"
CSF PW
--- --
Licensee Licensor
24
SCHEDULE A
----------
Licensed Software, Documentation, Databases, and
------------------------------------------------
Restrictions on Use
-------------------
A. Licensed Software GeoStan(TM) [Library]* -- Non-CASS
StarData(TM) -- Non-CASS
CENTRUS(TM) ACM demo -- 100 record limit
*Licensee may replace the GeoStan [Library] with the GeoStan [OCX] when the OCX
is available.
B. Documentation GeoStan(TM) Reference Manual
StarData(TM) User Guide
CENTRUS User Guide
C. Databases a. Qualitative Marketing Software's GeoStan(TM)
Address Standardization and Business Location
Research (BLR) Geocoding database files
(called GSDS) and required support files for
the United States.
-------------
b. Qualitative Marketing Software's BLR ZIP+4
Centroid File(s) (called Z9s), or its
suitable replacement, which Licensor has
license to resell and distribute, for the
United States.
-------------
D. Restrictions on Use
Licensee agrees that the Licensed Products:
(1) shall not be CASS certified for address standardization;
(2) shall not be transmitted on the Internet; and
(3) shall only process a maximum of 500,000 records annually.
CSF PW
--- --
Licensee Licensor
25
SCHEDULE B
----------
Designated CPS and Users
------------------------
The Licensed Software and Databases are licensed to Licensee for the following
Designated CPS and users:
GeoStan(TM), StarData(TM), and CENTRUS(TM) ACM (demo)
-----------------------------------------------------
Designated CPU Manufacturer: PC
Operating System: Windows(R) NT
Location: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Sites 1
Users 10
CSF PW
--- --
Licensee Licensor
26
SCHEDULE C
----------
Initial License Fee
-------------------
Software
GeoStan [Library] $10,000.00
StarData No charge
CENTRUS No Charge
Geocoding Database licensed directly from BLR
USPS Database $ 3,000.00
MSP $ 1,500.00
Total Initial License Fee for
Licensed Products and MSP $14,500.00*
Terms $4,853.00 plus applicable sales tax and
shipping ($60.00) due at offices of Licensor
on the Effective Date;
$4,853.00 plus applicable sales tax due at
offices of Licensor on or before march 20,
1997; and
$4,794.00 plus applicable sales tax due at
offices of Licensor on or before April 21,
1997.
CSF PW
--- --
Licensee Licensor
27
SCHEDULE D
----------
Renewal License Fee
-------------------
Geocoding Database licensed directly from BLR
USPS Database $3,000.00
MSP $1,500.00
Total Renewal License Fee for $4,500.00*
Licensed Products and MSP
Terms Payment due at offices of Licensor on the
Renewal Date
(optional - QMS Geocoding $2,000.00
database**)
*Does not include shipping or applicable sales tax.
**In the event Licensee elects to License the QMS Geocoding database,
payment of $6,500.00* shall be due at offices of Licensor as set forth above
under "Terms".
CSF PW
--- --
Licensee Licensor
28