Exhibit 10.26
[Letterhead]
OEM LICENSING AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of June 25, 1998
(the "Effective Date"), by and between Prime Recognition Corporation, a
California corporation ("PR"), with its principal place of business at Four
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and Restrac, Inc. ("Buyer"), a
Delaware corporation, with its principal place of business at ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Introduction
Prime Recognition owns or controls relevant rights to the products described
in Exhibit A ("Licensed Products"). Buyer wishes to license the Licensed
Products for incorporation into the products described in Exhibit B ("Buyer's
Products") and to distribute these products to third party customers.
1. License
▇. ▇▇▇▇▇ Subject to the terms and conditions of this Agreement, PR grants to
Buyer a non-exclusive, non-transferable, world-wide, license during the
term of this Agreement to (i) use Licensed Products (in object code form
only) for Buyer's own internal use in its development of the Buyer's
Products, (ii) copy Licensed Products solely to incorporate such copies
into the Buyer's Products, and (iii) distribute such copies solely as
part of the Buyer's Products. Buyer may sublicense its distribution
rights, but not its right to reproduce copies, to its resellers.
Notwithstanding the foregoing, Buyer may subcontract ability to
duplicate diskettes for its own manufacturing purposes.
Buyer shall not: (1) reverse engineer, decompile, disassemble, modify,
or alter Licensed Products, or grant to any third party the right to do
same, (2) market, distribute, or sublicense Licensed Products on a
stand-alone basis or as part of any product other than the Buyer's
Products, (3) market, distribute, or sublicense Licensed Products for use
on any hardware/software platform other than the Designated Platform
(defined in Exhibit A) and (4) create derivative works, the term
"derivative" shall be defined in the United States Copyright Act, Title 17
of U.S. Code, Section 101.
PR shall grant Buyer the right to draft end user reference materials. Buyer
shall have the right to incorporate portions of PR's copyrighted
documentation regarding the Licensed Products into Buyer's materials, as
long as all PR copyrights are preserved and PR copyright notices
reproduced.
Buyer shall be responsible for producing all materials, including
packaging, documentation, and disks, except as noted in Exhibit F.
b. Fees and Royalties Buyer shall pay to PR royalty fees as set forth in
Exhibit C in accordance with the payment schedule set forth in Section 1(d)
for each copy of Licensed Products distributed by Buyer under Section 1(a)
of this Agreement.
PR may, from time to time, release new versions of the Licensed Program
which contain bug fixes or very small enhancements ("Maintenance
Upgrades"). These versions are available to Buyer as per the terms of the
Maintenance Program in Exhibit E.
PR may, from time to time, release new versions of the Licensed Program
which contain significant enhancements, and/or added functionality
("Upgrades"). Additional fees may be charged by PR for copies of and the
right to sublicense such Upgrades, so long as any such fees are fairly
applied to all PR customers and not just Buyer and follow the terms of the
Maintenance Program in Exhibit E.
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c. Taxes Any and all amounts due to PR hereunder are exclusive of, and Buyer
shall pay, any sales, use, property, license, value added, withholding,
excise or similar tax, federal, state, or local, that may be imposed upon
or with respect to Licensed Products or its delivery, sale, use, or
possession and any insurance premiums, packing charges, inspection fees,
duties, tariffs, imposts, and similar charges, exclusive of taxes based on
PR's net income.
d. Payment Schedule, Reporting, and Audit Right Payments for royalties and
license fees accrued during any calendar quarter will be due within thirty
(30) days of the end of such calendar quarter. Buyer agrees to keep all
proper records relating to its distribution of Licensed Products under
this Agreement. PR may cause an audit to be made of the applicable records
in order to verify statements rendered hereunder. Any such audit shall be
conducted only by a certified public accountant and shall be conducted
during regular business hours at Buyer's offices and in such a manner as
not to interfere with Buyer's normal business activities. In no event
shall an audit be made more frequently than annually. PR shall bear the
expenses of any such audit unless such audit reveals that royalties paid by
Buyer under Section I(b) for any quarter are less than 90% of what should
have been paid by Buyer for such quarter, in which event the costs of such
audit shall be borne by Buyer, plus a fee equal to 1.5% of the amount due
per month, calculated from the date such payment was due. Prompt payment
of any amount found due and owing PR, including audit expenses due PR under
this Section, shall be made by Buyer upon demand by PR.
e. Proper Sublicensing Buyer shall distribute Licensed Products under this
Agreement by sublicensing to its customers, which may include end users or
resellers, the right to use Licensed Products solely as part of the
Buyer's Products, and all sublicenses of Licensed Products by Buyer shall
be written in nature and include, terms and conditions similar to those
set forth in Exhibit D. Should any customer breach the terms and
conditions in Exhibit D, Buyer agrees to promptly notify PR of the breach.
If such breach remains uncured beyond 30 days Buyer will, upon written
request of PR, immediately terminate the license of such customer.
2. Support; Maintenance Buyer shall have the sole responsibility for
first-line technical support of the Buyer's Products. Buyer shall not
refer end users to PR unless first screened by Buyer. At Prime
Recognition's discretion, technical support may be made available to those
customers.
Buyer must purchase, and renew annually, PR's current maintenance program
("Maintenance") for all Licensed Products used and distributed by Buyer,
including development tool kits licensed for internal development efforts.
If maintenance program on any product lapses then, until maintenance
program on all products has been reinstated, (1) PR will discontinue its
maintenance program to Buyer, and (2) PR will not license additional units
or options to Buyer. Notwithstanding the foregoing, the parties agree that
Buyer shall not be required to pay Maintenance fees for any copy of a
Licensed Product that is no longer being supported under Buyer's own
maintenance program. PR's Maintenance program and fees are described in
Exhibit E, attached hereto. The parties agree that, regardless of when the
fees are paid, Maintenance shall not begin on an externally licensed unit
of the Licensed Product until such unit has been distributed by Buyer.
3. Marketing Buyer shall reproduce PR's trademarks, copyright, and any other
proprietary rights notice on all copies of Licensed Products distributed
by Buyer under this Agreement. If PR or its trademarks are mentioned in
any marketing or product text Buyer will use the trademarks which PR uses
in conjunction with marketing and distributing the PR products. PR shall
own, and Buyer shall assert no ownership interest in any of the marks PR
uses in connection with PR products.
4. Warranties, Disclaimers and Limitations of Liability
a. PR's Warranty
i. Functionality Warranty PR warrants for a period of 90 days from the
Effective Date that Licensed Products will perform the functions
described in the Product Manual when properly operated in accordance
with the Product Manual on the Designated Platform. For any breach of
the above warranty, Buyer's exclusive remedy, and PR's entire
liability, shall be for PR, as its own expense, to correct (including
developing suitable workarounds) any reported Program Error, Program
Error defined as a reproducible and repeatable error in Licensed
Products which prevent Licensed Products from substantially conforming
to or performing in accordance with the Product Manual. If PR is unable
to correct such error conditions within a 30 day period from the date
first reported to PR, then PR shall refund to Buyer all license fees
and royalties paid under Section I(b) of the Agreement. PR does not
warrant that the operation of Licensed Products will be uninterrupted
or error-free, or that all errors
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will be corrected, or that Licensed Products will satisfy Buyer's
requirements or that Licensed Products will operate in the
combinations which Buyer may select.
ii. Media Warranty. PR warrants the media containing Licensed Products to
be free of defects in materials and workmanship under normal use for 90
days from and after the date on which the media is delivered to Buyer.
During such 90 day period, Buyer may return defective media to PR and
same will be replaced without charge. Such replacement of media is
Buyer's exclusive remedy and PR's entire liability in the event of a
media defect.
iii. Year 2000 Compliance. PR warrants that the Licensed Products are
designed to be used prior to, during, and after the calendar year
2000 A.D., and that the Licensed Products will operate during each
such time period without error relating to date data, specifically
including any error relating to, or the product of, date data which
represents or references different centuries or more than one century
provided that all products, particularly the operating system
software, used in combination with such Licensed Products properly
exchange date data with it. ("Year 2000 Compliant"). Specifically:
(1) the Licensed Products will not abnormally end or provide invalid
or incorrect results as a result of date data, specifically including
date data which represents or references different centuries or more
than one century; (2) the Licensed Products has been designed to
ensure year 2000 compatibility, including, but not limited to, date
data century recognition, calculations which accommodate same century
and multi-century formulas and date values, and date data interface
values that reflect the century; (3) the Licensed Products are and
will continue to be Year 2000 Compliant. All date processing by the
Licensed Products will include four digit year format and recognize
and correctly process dates for Leap Year.
iv. Time-bomb Warranty. PR further warrants that the Licensed Products do
not and shall not contain any viruses, traps, time-bombs, worms,
trojan horses, protect codes, data destruct keys or any other
instructions that may terminate or disrupt the operation of the
Licensed Products at any time or for any purpose, except for that code
that tests for the presence of the required (and correctly configured)
hardware key.
b. Warranty Disclaimers and Limitations. THE WARRANTIES ABOVE ARE EXCLUSIVE
AND IN LIEU OF ALL OTHER WARRANTEES, WHETHER EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. Any misuse or unauthorized
modification of the Licensed Products shall void this warranty. Repair or
replacement of a part, code, or other item, if performed within the initial
90 day period, and after 60th day shall extend the warranty period to 30
days from the time of such repair or replacement.
c. No Warranty Pass-Through. Buyer shall not pass through to its customers or
any other third party the warranties made by PR under this Section 4, shall
make no other representations to its customers or any other third party on
behalf of PR, and shall expressly indicate to its customers that they must
look solely to Buyer in connection with any problems, warranty, claim, or
other matters concerning Licensed Products. No warranty, representation or
agreement herein shall be deemed to be made for the benefit of any customer
of Buyer or any other third party.
d. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF
PROFITS, REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY,
WHETHER IN AN ACTION IN CONTRACT OR TORT, OR BASED ON A WARRANTY, EVEN IF THE
OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PR'S
LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE
AMOUNTS ACTUALLY PAID BY BUYER TO PR UNDER THIS AGREEMENT. THE FOREGOING
LIMITATIONS SHALL NOT APPLY TO PR'S INDEMNITY OBLIGATIONS UNDER SECTION 5
HEREOF.
5. Indemnity
a. PR Indemnity. PR shall be responsible for and shall indemnify, defend and
hold Buyer harmless from any and all losses, liability, or damages arising
out of, or incurred, in connection with a claim that Licensed Products, if
used within the scope of this Agreement, infringes a United States
copyright or patent ("Claim"), and PR will indemnify Buyer from any
damages finally awarded based upon a Claim, provided that: (i) Buyer
notifies PR in writing within 30 days of any Claim, (ii) PR has sole
control of the defense and all related settlement negotiations, and (iii)
Buyer provides PR with the assistance, information and authority
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necessary to perform the above. Reasonable out-of-pocket expenses
incurred by Buyer in providing such assistance will be reimbursed by PR.
PR shall have no liability for any Claim to the extent it is based on:
(i) use of a superseded or altered release of Licensed Products if such
infringement would have been avoided by the use of current unaltered
releases of Licensed Products that PR provides to Buyer or (ii) the
combination, operation, or use of Licensed Products with products or data
not furnished by PR if such infringement would have been avoided by the
use of Licensed Products without such products or data. In the event
Licensed Products is held or is believed by PR to infringe a Claim, PR
shall have the option, at its expense, to (i) modify Licensed Products to
be non-infringing, (ii) obtain for Buyer the right to continue using
Licensed Products, or (iii) terminate this Agreement and refund to Buyer
all license fees and royalties paid under Section 1(b) of this Agreement.
This Section 5a states Buyer's exclusive remedy and PR's entire liability
for any infringement.
b. Buyer Indemnity Buyer shall be responsible and shall indemnify and hold
PR harmless for any and all losses, liability, or damages arising out of,
or incurred, in connection with (i) Buyer's use of Licensed Products,
except for warranty claims under Section 4(a) above and third party
infringement claims as set forth in Section 5(a) above, and (ii) any
unauthorized representation, warranty, or agreement, express or implied,
made by Buyer to any of its customers or any other third party with
respect to Licensed Products, provided that: (i) PR notifies Buyer in
writing within 30 days of any Claim, (ii) Buyer has sole control of the
defense and all related settlement negotiations, and (iii) PR provides
Buyer with the assistance, information and authority necessary to perform
the above. Reasonable out-of-pocket expenses incurred by PR in providing
such assistance will be reimbursed by Buyer. This Section 5b states PR's
exclusive remedy and Buyer's entire liability for any of the actions
described above.
6. Proprietary Rights
a. Ownership of Proprietary Rights PR shall retain all of its rights or
title to and ownership of all copyrights, trademarks, trade secrets,
patents, and all other intellectual property rights related to or
embodied in Licensed Products. Except as otherwise expressly provided in
this Agreement, Buyer has no right, title, or interest in Licensed
Products or any intellectual property right relating to Licensed Products.
b. Non-disclosure By operation of and performance under this Agreement, the
parties may have access to information that is confidential to one
another (the "Confidential Information"). The Confidential Information
shall be limited to Licensed Products and information related thereto,
which are PR's Confidential Information, and all information clearly
marked as confidential. A party's Confidential Information shall not
include information which: (i) is or becomes a part of the public domain
through no act or omission of the other party; (ii) was already in the
other party's lawful possession, all as is documented by the other party;
(iii) is lawfully disclosed to the other party by a third party without
restriction on such disclosure; or (iv) is independently developed by the
other party without violation of this Agreement. The parties agree not to
disclose or make each other's Confidential Information available, in any
form, to any third party or to use each other's Confidential Information
except as expressly permitted in this Agreement. Each party agrees to
take all reasonable steps to ensure that Confidential Information is not
disclosed or distributed by its employees or agents (who have access to
same because of and on a need-to-know basis) in violation of any
provision of this Agreement. Notwithstanding any restrictions on use of
Confidential Information contained in the Agreement, but subject to
applicable copyright and patent rights of the parties set forth herein,
each party shall be free to use the Residuals from any Confidential
Information and any ideas and/or concepts contained therein for any
purpose, including use in the development, manufacture, marketing and
maintenance of products and services. "Residuals" means information
contained in Confidential Information in intangible form which may be
retained in unaided memory by those employees of one party to this
Agreement who have had access to Confidential Information of the other
party pursuant to the Agreement.
7. Export Law Compliance, U.S. Government Rights and Compliance with Laws
Buyer understands and recognizes that Licensed Products and other
materials made available to it hereunder maybe subject to the export
administration regulations of the United States Department of Commerce
and other United States government regulations related to the export of
technical data and equipment and products produced therefrom. Buyer is
familiar with and agrees to comply with all such regulations, including
any future modifications thereof, in connection with the distribution of
Licensed Products. Buyer further acknowledges that it is knowledgeable
about U.S. Government export licensing requirements or that it will
become so prior to engaging, directly or indirectly, in any export
transaction involving Licensed Products, related documentation or PR
technical data.
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Licensed Products and documentation are provided with Restricted Rights.
Use, duplication or disclosure by the U.S. Government is subject to
restrictions as set forth in subparagraph (c)(1)(i) of the Rights in
Technical Data and Computer Software clause at 15 CFR 252.227-7013.
Buyer agrees to place equivalent language on any Buyer's Products that
include Licensed Products to maintain this protection. Furthermore, if
applicable, Buyer shall be responsible for obtaining at its own expense
all required non-U.S. governmental approvals and authorizations in
connection with its marketing and distribution of Licensed Products.
8. Term, Termination, and Effect of Termination
a. Term The term of this Agreement shall commence on the Effective Date and
continue for three years thereafter, unless and until earlier terminated
pursuant to Section 6(b) of this Agreement. After this term the
Agreement will automatically renew on each anniversary of the Effective
Date unless either party gives the other written notice of non-renewal
at least one hundred and eighty (180) days prior to such anniversary.
b. Termination by Either Party Notwithstanding anything herein contained to
the contrary, either party, as applicable, shall have the right, in
addition and without prejudice to any other rights or remedies, to
terminate this Agreement as follows:
i. by either party, effective immediately upon written notice if the
other party commits any material breach of the terms hereof which
shall not have been remedied within 30 days of the receipt by the
party in default of notice specifying the breach and requiring its
remedy; or
ii. by either party, effective immediately upon written notice if (A)
all or a substantial portion of the assets of the other party are
transferred to an assignee for the benefit of creditors, to a
receiver or to a trustee in bankruptcy, (B) a proceeding is
commenced by or against the other party for relief under bankruptcy
or similar laws and such proceeding is not dismissed within 50 days,
or (C) the other party is adjudged bankrupt.
c. Effect of Termination Termination or expiration of this Agreement shall
not affect any other rights of either party which may have accrued up to
the date of such termination or expiration and (i) Buyer shall not be
relieved of any obligation for any sums due to PR under this Agreement;
(ii) neither party shall be relieved of any confidentiality obligation
under Section 4(b) of this Agreement; and neither party shall be
relieved of its indemnity obligation under Section 5 of this Agreement.
d. Buyer's Duties Upon Termination Upon any termination or expiration of
this Agreement, Buyer agrees to immediately cease using or distributing
Licensed Products and certify in writing to PR within 30 days after such
termination that Buyer has destroyed, or permanently erased, or has
returned to PR, all copies of Licensed Products and all related
documentation (in all forms, partial or complete).
PR will provide a credit to Buyer for up to twelve (12) units in Buyer's
inventory (not yet sublicensed to users) at time of termination subject
to following conditions: (a) If Buyers owes monies to PR, this credit
will be used to reduce debt first. Any excess credit will be refunded to
Buyer, and (b) hardware keys and any other PR sourced materials must be
returned for each unit.
No termination or expiration of this Agreement shall affect the rights
of end-users or resellers, who acquired the Licensed Products (as part
of the Buyer's Products) pursuant to this Agreement.
9. Miscellaneous
a. Assignment, Benefits and Binding Nature of Agreement Buyer may not
assign, sublicense (except as expressly permitted in this Agreement) or
transfer its rights or delegate its obligations under this Agreement
without the prior written consent of PR, which shall not be unreasonably
withheld. Notwithstanding the foregoing, Buyer may assign the Agreement
(without PR's consent) to an entity which controls it, it controls or
with which it is under common control. In the case of any permitted
assignment or transfer of or under this Agreement, this Agreement or the
relevant provisions shall be binding upon, and inure to the benefit of,
the successors, executors, heirs, representatives, administrators, and
assigns of the parties hereto.
b. Entire Agreement This Agreement, along with the Exhibits attached and
referenced herein, embodies the final, complete and exclusive
understanding between the parties, and replaces and supersedes all
previous oral or written agreements, understandings,
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or arrangements between the parties with respect to the subject matter
contained herein. This Agreement may not be modified or amended except in a
writing signed by an authorized officer of each party hereto.
c. Force Majoure Neither party shall be liable to the other for its failure
to perform any of its obligations under this Agreement, except for payment
obligations, during any period in which such performance is delayed or
rendered impracticable or impossible due to circumstances beyond its
reasonable control, provided that the party experiencing the delay promptly
notifies the other of the delay.
d. Notice Except as otherwise provided in this Agreement, notices required to
be given pursuant to this Agreement shall be effective when received, and
shall be sufficient if given in writing, hand-delivered, sent by First Class
United States Mail, return receipt requested (for all types of
correspondence), postage prepaid, or sent by overnight courier service and
addressed as follows:
To PR: To Buyer:
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Prime Recognition Restrac, Inc.
Four Buttercup Street ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The parties may change the name and address of the person to whom all notices
or other documents required under this Agreement must be sent at any time by
giving written notice to the other party.
f. Governing Law This Agreement shall be interpreted in accordance with the
laws of the state of California.
g. Waiver The failure of either party to enforce the provisions of this
Agreement shall not be deemed a waiver of such provisions or of the right of
such party thereafter to enforce such provisions.
h. Severability In the event that any provision of this Agreement shall be
held to be unenforceable or invalid, the enforceable or valid portion thereof
and the remaining provisions of this Agreement will remain in full force and
effect.
i. Independent Contractors The parties are not employees or legal
representatives of the other party for any purpose. Neither party shall have
the authority to enter into any contracts in the name of or on behalf of the
other party.
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IN WITNESS THEREOF, the undersigned have executed and delivered this
Agreement by their duly authorized representatives as of the date first set
forth above.
Prime Recognition Corporation Restrac, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------- ------------------------------
(signature) (signature)
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
President Chief Financial Officer
Date: 7-2-98 Date: 6-26-98
------------------------- -----------------------
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Exhibit A
---------
Licensed Products
-----------------
Product ID Description
---------- -----------
OCR-NT-L3 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇
OCR-DS Image Deskew
OCR-IE Image Enhancement
OCR-ETO Enhanced Text Output
OCR-CILR Confidence/Image Location Reporting
Designated Platform
-------------------
Windows NT and all hardware which supports this operating system and Intel CPU
binary compatibility, and meets PR's then current minimum system requirements.
Current System Requirements
32MB of Free RAM (assumes standard configuration, excludes RAM required by OS
and other resident applications)
Active LPT1 Printer Port with no other hardware keys present
20MB of free disk space
CD ROM drive (for installation)
Future system requirements may differ.
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Exhibit B
---------
Buyer's Products
----------------
Restrac Hire for Intranet
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Exhibit C
Licensing Fees, Terms and Conditions
Product Versions
PR will provide Buyer with Versions 2.70, and 3.0 of the above mentioned
licensed products. Buyer will sublicense only one version at any one time.
Products with Version 2.70 may be upgraded to Version 3.0 for a special price
of **** (**** ** *********) until 7/1/99.
Configuration
The minimum PrimeOCR configuration to be used by Buyer is shown in Exhibit A.
********** ******** *******, *** **** ******* ********* ** *** *********, ***
** ***** *** ** ********* **** ** *** **** ******* ****** ******** ***** (***
** **** *****, ***** ** ***** ***** ***** ** ***** (*-*)) *** ** *******. ***
******* ******* *** ********** ** **** *******: (*) ***-** "****** ****"
****** (*/**** ******), ******* ******** ** ***, *** (*) ***-*** "*** ******"
******, ********* ** ** **'* ********** *** **** ** ******** ** * **** **
**** *****, ********* ******** ****** *******. ** *** ****** ** **** ******,
********* ** *********, ***** ********* ******* ****** **************,
********* *** *** ******* **, ******* ****** ** ******** ******, ****** **'*
******* ** *** *** ******* ** ***** ******* ***** **** *********.
******** ****** ******** *** *****
***** (*-*) ***** *** ******** ******** ******** ** ***** *** ********
******** ***** ** ***** ** ***** ***** ********. ***** ******** ****** ** ***
*** ********* ** ** *** ***** ********* ***,*** (***** ********) ** ********
******** ***** ******** **** *** ***** ** ***** *****. *** ******* *****
******** ** ***. **** ******* ******** *** ** ********* ** *** ***** **
******* ********** ** ** ***** ***,***.
Maintenance
A first year annual maintenance program is required for every product
licensed. After the first year, if Buyer has its customer under a maintenance
agreement then PR maintence program is also in effect. However, at any point
in time, payments to PR for maintenance programs must be equivalent to at
least 50% of all outstanding units being covered by the maintenance program.
Pricing of maintenance program is 15% of the then current list price of
license. Maintenance program costs are discounted by the then current
discount level. First year maintenance program costs are due at the same time
as license costs are due.
On the annual anniversary of this Agreement the maintenance program costs of
all licensed programs are aggregated into one term which runs from the
Anniversary date to the next Anniversary date. Any products licensed for the
first time in the prior year will be prorated so that the maintenance
coverage for these products now extends to the next Anniversary date. PR will
prepare and send an invoice of this cost at it's earliest convenience after
Anniversary date, and invoice is due 30 days after receipt by Buyer, with
overdue balances accruing a 1.5% per month fee.
Security
Each PrimeOCR unit licensed will include a hardware key for security.
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Special Table (C-2) & (C-3) Discounts
Fees for "New Customer"
Table (C-2) shows a final per unit cost of **,***.** ** *****'* *******
******** *****. This represents a *** discount off of PR's list prices at the
time of Effective Date and is available to any new Restrac Hire for Intranet
customer, "New Customer" subject to the conditions noted below. One year of
maintenance program charges are included in Buyer's initial Fees and are
discounted at the special rate. The discount on subsequent year maintenance
program renewals will follow the schedule outlined in Table (C-1).
The New Customer discount (***) and cost (**,***.**) shown in Table (C-2)
expire one year after the Effective Date of this Agreement. After that time,
New Customer pricing can change based upon Buyer's current discount level and
price changes to PR's products.
Fees for "Upgrade Customer"
Table (C-3) provides the same PrimeOCR configuration shown in Table (C-2),
but includes an even lower cost of **,***.** for existing Restrac Hire
customers who upgrade to Hire for Intranet, "Upgrade Customer". This ***
discount (calculated from PR's list prices at the time of Effective Date) is
restricted to existing (pre V4.0) Restrac Hire customers and subject to the
conditions noted below. One year of maintenance program charges are included
in Buyer's initial Fees and are discounted at the special rate. The discount
on subsequent year maintenance program renewals will follow the schedule
outlined in Table (C-1).
The number of Upgrade Customer units available for license is limited to ***.
Additional units may be licensed at the then current New Customer price.
The Upgrade Customer discount (***) and cost (**,***.**) shown in Table (C-3)
expire two years after the Effective Date of this Agreement. Additional units
may be licensed at the then current New Customer price.
Table (C-2) & (C-3) Discount Conditions
To qualify for the discounts shown in Tables (C-2) and (C-3), Buyer must
adhere to the following conditions:
Configuration: The minimum configuration to be used by Buyer for all
licenses is shown in Table (C-2).
**********: *** ***** *** ***** ******** *** ** ******* ********, ***
*** ******** ******* ** ********. *** *******, ** ***** ******** ***
**,***.** ***** *** ******** ********* ********* ** **** *** ********,
***** **** **** **** ** ******* *** **,***.** ******* **** *** ** ********
** * *** **** *** ******** ******** ** **** ** ********* *** * ******
*******.
***-*******: ** ******* *** *** *** ********, ***** **** ***-******* **
"******* ********" *****. ***** **** *** ********** ********* *****, ****
**** ****** *** ***-******* ** ** "*** ********" *****. *** ***** **** ***
***-******* ** ***** ** ***** ** ***** ** ***** (*-*). ****** ***** (*)
**** ** ********* ** *** ********* ***** **** *** **** ** ***-******* **
** *** ** **** **** ***** ** *****.
Returns: None of the Pre-License fees are refundable, for example,
refunds shown in Section 8(d) do not apply to the Pre-License units.
11
***** (***)
****** ******** ********
---------------------------------------------
********
** ***** ******
******* *** ****** ********
---------------------------------------------
***** ******* ***
---------------------------------------------
******* * ******* ***
---------------------------------------------
******* * ******* ***
---------------------------------------------
******** * ******** ***
---------------------------------------------
******** * ******** ***
---------------------------------------------
******** * ******** ***
---------------------------------------------
******** ** ***** ***
---------------------------------------------
******** ********
**** **********
---------------------------------------------
******* * ******* ***
---------------------------------------------
******* * ******* ***
---------------------------------------------
******* ** ***** ***
---------------------------------------------
12
***** *****
**** *** *** *********
-----------------------------------------------------------------------
******* ** *********** *****
-----------------------------------------------------------------------
********* ******** ** *********
-----------------------------------------------------------------------
****** ***** ****** *******
-----------------------------------------------------------------------
****** ***** *********** *******
-----------------------------------------------------------------------
******* ******** **** ****** *********
-----------------------------------------------------------------------
******** **************** ********
********* *********
-----------------------------------------------------------------------
*********** *********
-------------------------------------------------------
******** **********
-------------------------------------------------------
******** ***** ***********
-------------------------------------------------------
******** *** ******** ******
-------------------------------------------------------
***** *********
-------------------------------------------------------
***** *****
**** *** ********* *********
-------------------------------------------------------
******** **********
-------------------------------------------------------
******** ***** ************
-------------------------------------------------------
******** *** ******** ******
-------------------------------------------------------
***** *********
-------------------------------------------------------
***** *****
***** *********** ********
--------------------------------------------------------------------------
******** ******** **** **** ***** ******
--------------------------------------------------------------------------
** ******* ******** ********* ***********
--------------------------------------------------------------------------
** *** ******** ********* ***********
--------------------------------------------------------------------------
***** ***********
----------------------------
13
Exhibit D
End User Sublicense
-------------------
Minimum Terms and Conditions
----------------------------
(Attach Restrac's standard Software License Agreement)
14
Exhibit E
Prime Recognition Maintenance Program
Benefits
--------
Technical Support
Unlimited contacts at no charge
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
8:30AM-6:00PM Pacific Time, Monday-Friday
except Holidays
FAX: ▇▇▇-▇▇▇-▇▇▇▇
EMAIL: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
FTP: ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Access To Maintenance Upgrades
No charge
Contact Technical support for availability of
new releases
Discount on Feature Upgrades
50% discount on list cost of upgrade
Contact Sales for information on availability
and pricing
Access to Onsite Support
$125/hour, 4 hour minimum including travel time
Plus travel expenses
$500 plus expected travel expenses paid up
front
Prime Recognition may refuse an onsite
support request
Cost
----
15% of purchase price per year, paid at beginning of year. Succeeding year
maintenance price increases are limited to a maximum of 5% per year.
If program is terminated no refund is made for any remaining period of
coverage.
If program is terminated and then reinstated, normal maintenance price is
incurred for period in which maintenance was not purchased.
15
Limitations
-----------
(1) Technical support is limited to Prime Recognition's products running
under supported environments.
(2) All Prime Recognition products licensed by user must be under a active
Prime Recognition maintenance program to receive maintenance on any product.
(3) Prime Recognition does not warrant that its software is free of defects,
nor does it warrant that it can fix any or all defects. Prime Recognition
does warrant that it will use standard levels of effort to fix bugs
identified, or develop "work arounds", in a timely manner. Prime Recognition
offers one level of resolution escalation. Customers may send Prime
Recognition a written letter documenting problem. Prime Recognition has three
days to accept the problem as conforming to its maintenance requirements
(e.g., software is operating on a supported platform, problem is not caused
by a third party product from user, etc.). If accepted Prime Recognition has
another three days to fix problem, develop a work around, document to user
why fix will take more than three days to fix, or document to user why
problem can not be fixed.
(4) Versions more than one year old will be supported at PR's discretion.
16
Exhibit F
Responsibilities for Licensed Product Components
------------------------------------------------
PR will supply all hardware keys at its expense. Buyer must order from PR the
specific configuration of options that will be or have been licensed to
Buyer's customer. PR will program key and deliver key to Buyer with a 3
business day turnaround. The number of keys supplied to Buyer should match
the number of Licensed Products licensed in any quarter. PR will not accept
returns of keys unless they are proven defective.
17