EXHIBIT 10.12
SQL FINANCIALS INTERNATIONAL, INC.
SOFTWARE LICENSE AND SUPPORT AGREEMENT
THIS AGREEMENT ("Agreement"), effective as of the date shown on Exhibit A,
is by and between SQL FINANCIALS INTERNATIONAL, INC. d/b/a SQL FINANCIALS(R),
a Delaware corporation with its principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("SFI") and Technology Ventures, L.L.C. and ▇▇▇▇▇▇
Consulting Group, Inc. ("You" and "Your"), Georgia entities with their principal
place of business specified on Exhibit A.
For and in consideration of the representations set forth herein, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. DEFINITIONS.
------------
As used in this Agreement and the exhibit(s) hereto; the following terms
shall have the meaning and definition as specified below:
A. Accepted Order(s) means a written amendment executed by You and
-----------------
accepted by SFI in accordance with the procedure described in Section 12 of this
Agreement.
B. Application means any one of the computer software programs in object-
-----------
code form comprising the Software and listed in Exhibit A and in Accepted
Order(s).
C. Application Fee means the amount of money in U.S. dollars specified on
---------------
Exhibit A and any Accepted Order(s) for the licensing rights to the Software and
Third-Party Software.
D. Confidential Information includes, but is not limited to, the terms of
------------------------
this Agreement, Third-Party Software, and, to the extent such information is not
defined as a Trade Secret in Paragraph 1.O below, any other information marked
or noticed as confidential by either party. "Confidential Information" does not
include information that has become publicly known or available without breach
of this Agreement.
E. Database Server means the authorized number of individual computers
---------------
connected to Your network, as specified in Exhibit A and any Accepted Orders, on
which the Database Software is installed.
F. Database Software means a single copy of the database management system
-----------------
software, as identified in Exhibit A and any Accepted Orders, installed on the
authorized Database Server(s).
G. Designated Employee means up to three of Your employees as identified
-------------------
in Exhibit A who are responsible for contacting SFI via the SFI support line for
the services described in Section 5 of this Agreement. You may change a
"Designated Employee" by notifying SFI in writing.
H. Documentation means the reference materials owned and provided by SFI
-------------
to You which instruct You in the requirements, structure, operation, and
maintenance of the Software. Documentation is provided in a combination of
printed and electronic formats.
I. Full Users are defined as each Workstation on which the Application(s)
----------
are installed and/or used, or to which the Application(s) are distributed for
use over Your internal network.
J. License Term means the period of time beginning with the effective date
------------
identified in Exhibit A and ending forty years thereafter.
K. Location(s) means Your place of business specified in Exhibit A.
-----------
Notwithstanding the foregoing, upon Your payment to SFI of the applicable fees
designated in Accepted Order(s), the addresses of additional sites described in
Accepted Order(s) are included and made part of this definition with respect to
the Software described on such Accepted Order(s).
L. Software means (a) the object-code version of the computer software
--------
Applications; (b) the periodic improvements of or additions to the functionality
set forth in the Documentation; (c) the Documentation; and (d) any other
enhancements, modifications, or revisions of the foregoing and all copies of the
foregoing.
M. Support Terms mean the terms and conditions of Section 5 of this
-------------
Agreement pursuant to which SFI will provide specific support services to You as
set forth therein.
N. Third-Party Software means the computer software applications owned or
--------------------
distributed by certain third parties, in machine-readable object-code form and
any accompanying documentation, which are identified in Exhibit A and any
Accepted Order(s).
O. Trade Secret means information, without regard to form, including, but
------------
not limited to, the Software, technical or nontechnical data, research data, a
formula, a pattern, a compilation, a program, a device, a method, a technique, a
drawing, a process, financial data, financial plans, product plans, or a list of
actual or potential customers or suppliers which is not commonly known by or
available to the public, and which information (i) derives economic value,
actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use, and (ii) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
P. Workstations mean Your computer workstations which are connected to the
------------
Database Server(s) via a local area or telecommunications network.
Q. You or Your means the entity identified under the recital set forth
-----------
above and any person, firm, corporation, partnership, association, or other
entity which now or in the future controls, is controlled by, or is under common
control with You, provided such entity is not a competitor of SFI.
2. SOFTWARE LICENSE.
-----------------
A. SFI grants to You, and You accept, a limited, nonexclusive, and
nontransferable license during the License Term to use each Application and the
Third-Party Software solely for Your own internal operations. For Your
production needs, the license granted herein permits You to use each Application
with a single production copy of the Database Software. One or more
Applications may access the same production copy of the Database Software, or
each Application may access its own separate copy provided You do not exceed the
authorized number of Database Servers. Your access to the Database Software via
the Workstations shall at no time exceed the number of Full Users specified in
Exhibit A and any Accepted Order(s).
B. SFI will provide You with one copy of the Documentation for each
Application. You may reproduce copies of the Documentation to be used solely
for Your internal purposes in accordance with this Agreement.
C. You may make a reasonable number of copies of the Software as needed
solely for back-up, archival, and testing purposes. Such copies must be
maintained in a secure area with limited access.
D. You will not alter, remove, modify, or suppress any proprietary notices
placed on or contained within the Software and Third-Party Software. You will
also ensure that all such proprietary notices and confidentiality legends appear
on all copies of the Software and Third-Party Software.
E. Except as expressly authorized in this Agreement, You may not copy or
reproduce the Software or Third-Party Software. Under no circumstances will You
modify, distribute or transfer (by any means), display, sublicense, rent, lease,
reverse engineer, decompile, or disassemble the Software or Third-Party Software
or use the Software or Third-Party Software in a service bureau or time- sharing
environment. SFI reserves all other rights not expressly granted to You
hereunder.
F. SFI may deliver the Software in compact disc ("CD") format. Such CD may
contain applications which You have not licensed the right to use and which are
password protected. You agree that the term "Application(s)" used in the
context of Your licensing rights under this Agreement shall mean only the
Applications described in Exhibit A and any Accepted Orders, and that You shall
not access, use, or disclose in any manner whatsoever any applications which You
have not licensed and that all copyrights, Trade Secrets, and other proprietary
rights in and to such unlicensed applications shall remained vested in SFI.
G. With advance notice, You will allow SFI to enter the Location(s) during
regular business hours in order for SFI to verify Your usage of the Software and
Third-Party Software is in compliance with this Agreement.
3. DELIVERY AND IMPLEMENTATION.
----------------------------
A. SFI shall deliver one copy of the applicable Software and Third-Party
Software (if any) to You within a reasonable period of time following Your
payment of the Application Fee(s) described in Exhibit A or in Accepted
Order(s), if any. SFI shall be responsible for all freight and insurance
related to shipment of the Software to the Location(s), and bear all risk of
loss of shipment to the Location(s) as specified in the Accepted Order(s). The
Location "Contact Person" designated on Exhibit A and any Accepted Order(s) will
be the person SFI contacts for all matters related to the delivery of the
Software.
B. Upon Your request and subject to the availability of personnel, SFI
will provide You with implementation and training services on a time-and-
materials basis at SFI's then-current rates plus out-of-pocket expenses incurred
by SFI in rendering such services. Invoices relative to implementation and
training will be paid in accordance with the provisions of Section 11.D. Each
party will perform its respective responsibilities to effect a successful
implementation of the Software.
C. You will provide an environment for installation and operation of the
Software which meets the standard system requirements described in the
Documentation. SFI is not responsible for obtaining or selling to You the
hardware and all third-party software needed in order to meet the standard
system requirements or maintenance or support thereof.
4. TERM.
-----
A. This Agreement will become effective on the effective date of this
Agreement and will remain in full force and effect until the expiration of the
License Term unless earlier terminated as provided in Section 4.B.
Notwithstanding the foregoing, the Support Terms shall become effective on the
effective date of this Agreement and shall remain in full force and effect
thereafter for an initial term of one year, unless earlier terminated as
provided in this Section 4.A. or in Section 4.B. At the end of the initial one-
year term of the Support Terms and upon payment of the applicable annual support
fee, the Support Terms will automatically renew for successive one-year terms.
Either party may cause the Support Terms not to be automatically renewed by
notice to the other party given not less than thirty days prior to the end of
the initial term or any renewal term of the Support Terms, subject to Section
4.C. of this Agreement and to portions of this Agreement which shall remain in
full force and effect in accordance with their terms.
B. Either party may terminate this Agreement upon the occurrence of a
material breach hereof by the other party, which material breach has not been
cured within thirty days after receipt of written notice thereof by the
breaching party from the other. Notwithstanding the foregoing, in the event
such breach is a material breach of the Support Terms and remains uncured for
the thirty-day period stated above, the nonbreaching party may only terminate
the Support Terms and the remaining provisions of this Agreement shall continue
in full force and effect.
C. Upon either expiration or termination of the license granted herein,
You shall immediately return to SFI all Software and Third-Party Software
(including any and all copies thereof) and all SFI Trade Secret and Confidential
Information; shall render unusable any Software and Third-Party Software or
portion thereof loaded on the server(s) or Workstations; and shall cause an
authorized representative of Your business to certify in writing that You have
complied with this Section 4.C. In the event of termination of the Support Terms
based on a material breach by SFI which is not cured as set forth herein, SFI
will refund to You the unused portion of the annual support fee paid for such
term based on a prorata abatement over the one-year term.
D. Each party agrees not to disclose Confidential Information obtained
from the other party for a period of three years beyond the termination of this
Agreement. Each party agrees its obligation to maintain the confidentiality of
the other party's Trade Secrets shall survive termination of this Agreement, as
shall the provisions set forth in Sections 6.B, 8, and 9.
5. SUPPORT TERMS.
--------------
A. For the annual support fee portion of the Application Fee set forth in
Exhibit A and in Accepted Order(s), if any, SFI agrees to provide the support
services as described in this Section 5.
B. SFI will:
(1) provide reasonable telephone assistance during SFI's normal
support hours to Your Designated Employees relating to the use of the
Software and Third-Party Software;
(2) make available to You new releases of the Software from time to
time as they become available to SFI's customers in general;
(3) make available to You new releases of the Third-Party Software
that SFI deems compatible with the Software from time to time as they
become available to SFI and are tested and qualified by SFI; and
(4) furnish one copy per Application of updated Documentation on the
use and operation of the Software.
C. You will:
(1) provide SFI with all information determined reasonably necessary
by SFI to replicate and resolve any Software or Third-Party Software
problem You encounter:
(2) in the event SFI must travel to the Location in order to resolve a
Software or Third-Party Software problem, provide SFI with access to and
use of all information and facilities determined reasonably necessary by
SFI to replicate and resolve any Software or Third-Party Software problem
You encounter;
(3) maintain the Software and Third-Party Software at the release
levels specified by SFI and maintain the release level of third-party
products required for operation of the Software as approved for use by SFI;
(4) operate the Software and Third-Party Software on a computer system
consistent with the standard system requirements described in the
Documentation and any updates thereto; and
(5) employ data processing or systems administration personnel with
sufficient knowledge and expertise to effectively operate and maintain the
Software and any Third-Party Software in Your technical environment.
D. SFI will provide the support services described in this Section 5 only
for the then-current and immediately prior release of the Software as of the
date of Your request for services. With respect to a release other than the
then-current and immediately prior releases, SFI reserves the right to determine
whether or not to make available support services and the terms and fees of such
services, if any.
E. SFI reserves the right to discontinue support of the Third-Party
Software with or without cause upon thirty days prior notice to You. In such
event, SFI will refund to You the unused portion of the annual support fee paid
for such term based on a prorata abatement over the one-year term.
F. SFI shall not be obligated to support an Application, or portion
thereof, in which You by any program or process other than the Application (i)
delete or modify the database tables, indexes, or procedures created and
maintained by the Application, or (ii) add to, delete, or modify the data
maintained in the database tables, unless procedures for such changes are
provided by SFI in the Application Documentation or under the direction of SFI's
Customer Support and You perform the changes in accordance therewith.
6. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
---------------------------------------
A. You acknowledge SFI owns or has the right to distribute the Software
and Third-Party Software. You further acknowledge the Software is unpublished
and embodies SFI's copyrights and Trade Secrets.
B. All right, title, and interest in the Software, including without
limitation, all copyrights, Trade Secrets, and other intellectual property
rights pertaining thereto shall remain vested in SFI. You do not claim any title
or ownership of the Third-Party Software.
C. Each party acknowledges that certain information it will acquire from
the other party may constitute Trade Secrets and Confidential Information.
Having acknowledged the foregoing, each party agrees (i) to exercise the same
degree of care and protection (but no less than a reasonable degree of care and
protection) with respect to the other party's Trade Secrets and Confidential
Information as each party exercises with respect to its own Trade Secrets and
Confidential Information; and (ii) not to, directly or indirectly, disclose,
copy, transfer or allow access to any Trade Secrets and Confidential Information
obtained from the other party; provided, however, each party may disclose Trade
Secrets and Confidential Information to its employees and third parties
performing services for such party related to the purposes of this Agreement who
have a need to know and who have agreed in writing to comply with the
restrictions set forth herein.
D. Anything herein to the contrary notwithstanding, You agree not to
demonstrate the Software, or operation thereof, or reveal any of SFI's Trade
Secrets and Confidential Information to any known competitor of SFI without the
prior written consent of SFI. Furthermore, You agree to keep the Software and
Third-Party Software free and clear of all claims, liens, and encumbrances.
E. Each party agrees that monetary damages shall not be an adequate remedy
for breach of its respective obligations of confidentiality set forth herein and
that in addition to all other remedies to which it may be entitled, the
nonbreaching party shall have the right to apply to a court of competent
jurisdiction for a temporary restraining order, preliminary injunction, or other
equitable relief to preserve the status quo or prevent irreparable harm in the
event there is a breach or threatened breach of the provisions set forth in this
Section 6.
7. LIMITED WARRANTIES AND DISCLAIMERS.
-----------------------------------
A. SFI represents and warrants that (i) SFI has the right to grant the
license granted herein, and (ii) so long as You maintain and are in compliance
with the Support Terms, the Software will be free of material defects and will
operate in accordance with the Documentation.
B. SFI will take appropriate action to correct any material
nonconformities with the limited warranty set forth in Section 7.A. of which SFI
receives notice from You; or, at SFI's option, SFI will replace the
nonconforming portion of the Software. The limited warranty set forth in
Section 7.A. shall not apply to (and You shall pay SFI at SFI's then-current
rates for additional services performed by SFI in connection therewith)
nonconformities reasonably determined by SFI to have been caused by any of the
following: (i) deletions or modifications to the Software, database tables,
indexes, or procedures performed by a party other than SFI and not under SFI's
direction; (ii) additions, deletions, or modifications to the data maintained in
the database tables created and maintained by the Application by any program or
process other than the Application; (iii) negligence in the operation or use of
the Software; or (iv) use, adjustments, installation, or malfunction of any
products or goods other than those authorized by SFI.
C. THE LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT ARE MADE FOR THE
BENEFIT OF YOU ONLY. THE REMEDIES DESCRIBED IN SECTION 7.B. ARE THE SOLE AND
EXCLUSIVE REMEDIES FOR BREACH OF THE LIMITED WARRANTY MADE IN SECTION 7.A.
THERE ARE NO OTHER WARRANTIES OR CONDITIONS, WHETHER WRITTEN OR ORAL, EXPRESS OR
IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, THE SOFTWARE
(INCLUDING ANY THIRD-PARTY SOFTWARE PRODUCTS), OR ANY OTHER GOODS OR SERVICES
PROVIDED BY SFI, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY OR AGAINST INFRINGEMENT OR IMPLIED WARRANTIES OR CONDITIONS OF
FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES DESCRIBED IN THIS SECTION 7 ARE
THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH HEREOF.
8. INDEMNIFICATIONS.
-----------------
A. SFI shall defend, at its expense, any action (or portion thereof)
brought against You based solely on a claim that the Software infringes upon a
United States copyright or violates the proprietary trade secret of any third
party. SFI will indemnify You and hold You harmless against damages and costs,
including attorneys' fees, finally awarded against You in such actions which are
directly attributable to such claims; provided SFI is given prompt written
notice of such claim, reasonable assistance from You, and sole authority to
defend or settle such claim. If the Software becomes, or in SFI's opinion is
likely to become, the subject of such a claim of infringement, then SFI may, at
its option: (i) procure for You the right to use the Software free of any
liability for infringement or violation; or (ii) replace or modify the Software
to make it noninfringing or nonviolating. SFI shall have no liability for any
claim based on use or modification of the Software other than as specified in
this Agreement and the Documentation or use of third-party products either
independently or with the Software. THIS SECTION SETS FORTH THE COMPLETE
LIABILITY OF SFI WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
B. You acknowledge the Software is an information software package only
and that the Software is designed merely to assist You, Your agents, and
employees in the performance of their professional activities and is not
intended to replace the professional skill and judgment of You, Your agents, or
employees. You shall be solely responsible for the accuracy and adequacy of
information and data furnished for processing and any use made by You, Your
agents or employees of the data output by the Software and any reliance thereon.
You shall indemnify, defend, and hold harmless SFI and its affiliates and their
respective officers, directors, shareholders, agents, and representatives
against any and all liabilities, obligations, losses, costs, damages, and other
expenses and attorneys' fees relating to any claim by any third party arising
from or relating to this Agreement or Your use of the Software or any output
thereof (except to the extent SFI is obligated to indemnify You as described in
Section 8.A.), provided SFI gives You prompt written notice of such claim,
reasonable assistance, and sole authority to defend or settle such claim.
9. LIMITATION OF LIABILITY.
------------------------
A. EXCEPT FOR THE SPECIFIC LIABILITIES ASSUMED BY SFI UNDER SECTION 8.A.,
UNDER NO CIRCUMSTANCES SHALL SFI OR ANY SUPPLIER OF SFI HAVE ANY LIABILITY TO
YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT,
OR SPECIAL DAMAGES OR COSTS (INCLUDING ATTORNEYS' FEES) OR LOSS OF GOODWILL
RESULTING FROM ANY CLAIM (INCLUDING ANY CAUSE OF ACTION IN CONTRACT, TORT,
NEGLIGENCE, STRICT LIABILITY, OR PRODUCTS LIABILITY) REGARDING THIS AGREEMENT OR
RESULTING FROM OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE, OR
PERFORMANCE OR NONPERFORMANCE OF, THE SOFTWARE, THE THIRD-PARTY SOFTWARE, OR ANY
OTHER GOODS OR SERVICES PROVIDED BY SFI OR ITS SUPPLIERS, OR ANY COMPONENT
THEREOF, EVEN IF SFI OR SUCH SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES OR COSTS.
B. EXCEPT FOR THE SPECIFIC LIABILITIES ASSUMED BY SFI UNDER SECTION
8.A., IN NO EVENT SHALL SFI OR ANY THIRD-PARTY SUPPLIER OF SOFTWARE PRODUCTS BE
LIABLE TO YOU UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM
OR ACTION, IN AN AMOUNT THAT EXCEEDS THE LICENSE FEE PORTION OF THE APPLICATION
FEE PAID BY YOU FOR THE PARTICULAR APPLICATION INVOLVED. FOR PURPOSES OF THIS
SECTION 9.B ONLY, THE LICENSE FEE PORTION OF THE APPLICATION FEE SHALL BE DEEMED
TO BE EIGHTY PERCENT OF SUCH APPLICATION FEE. SFI SHALL HAVE NO LIABILITY FOR
ANY DAMAGES WHATSOEVER RELATING TO ANY PRODUCTS, GOODS, OR SERVICES NOT PROVIDED
BY SFI.
C. You acknowledge and agree that the fees charged by SFI in this
Agreement reflect the allocation of risks including (but not limited to) the
foregoing limitation of liability and the exclusive remedies described in
Section 7.B. A modification of the allocation of risks set forth in this
Agreement would affect the fees charged by SFI, and in consideration of such
fees, You agree to such allocations of risk.
10. FORCE MAJEURE.
--------------
Neither party shall be liable for any delay or failure in performance of
this Agreement if caused by an act of God or any factor beyond control of the
party. In any such event, the date for the party's performance shall be deferred
for a period of time equal to the time lost by reason of such act of God or
other factor beyond control, provided that the delayed party shall notify the
other party of such occurrence and shall cooperate with the other party in
minimizing any adverse impact of such occurrence.
11. PAYMENT TERMS.
--------------
A. Upon Your execution of this Agreement, You will pay SFI the total
fee(s) described in Exhibit A. With respect to additional items and
professional services ordered after the effective date of this Agreement
pursuant to an Accepted Order, You will pay SFI the total fee(s) described in
such Accepted Order on the dates specified therein or, if not specified, thirty
days from the date of the invoice. In addition, and provided the Support Terms
have not been terminated in accordance with Section 4 of this Agreement, You
will pay to SFI the then-current annual support fee for the Software and the
Third-Party Software on each anniversary date of the effective date of this
Agreement which payment will be made on the first day of the month in which the
anniversary date of the effective date occurs. The annual support fee will be
prorated for a partial month if the effective date is not the first day of a
month.
B. You will pay SFI all reasonable out-of-pocket expenses incurred by SFI
relating to the performance of the services specified hereunder. Any services
provided by SFI to You which are beyond the included services described in this
Agreement will be at SFI's then-current rates.
C. You will be responsible for payment of all applicable sales, use, ad
valorem, and excise taxes; duties; and assessments relating to the goods and
services provided hereunder. You shall hold SFI harmless from all claims and
liability arising from Your failure to pay such taxes.
D. Each of the amounts payable by You to SFI under this Agreement will be
due and payable on the date specified herein or, if not specified, thirty days
from the date of the invoice. SFI's obligations and Your rights under this
Agreement are conditioned upon Your payment of the fees and other charges
described herein. Any amount payable pursuant to this Agreement which is not
paid within thirty (30) days of the date of invoice shall be delinquent and
shall bear interest at the rate of one and one half percent (1.5%), or the
maximum legal rate if less, for each month or portion thereof it is delinquent;
You shall pay such interest, along with all costs and reasonable attorneys' fees
incurred by SFI in the collection of such delinquent amounts. All fees and
charges related to this Agreement are in U.S. dollars.
12. ADDITIONAL ITEMS.
-----------------
A. Additional items of Software, Third-Party Software, professional
services, and the right to operate the Software (i) with additional Full Users,
or (ii) with access to additional production copies of the Database Software, or
any one or more of the foregoing, may be added to this Agreement by execution of
an amendment to this Agreement in accordance with the procedure described in
this Section 12.
B. In the event You desire to license such additional items, You must (i)
have an authorized representative execute an amendment to this Agreement
detailing such request, and (ii) remit such order request to SFI. Upon
acceptance by SFI, SFI will execute the amendment and return a fully executed
copy to You for Your files. Such additional items shall be governed by the
terms and conditions of this Agreement. If the request is accompanied by Your
purchase order, any preprinted terms and conditions appearing on such purchase
order shall not apply to or become part of this Agreement regardless of any
statement to the contrary contained in or specified on such form.
13. NOTICES.
--------
All notices under this Agreement shall be in writing and shall be deemed to
be effectively given if made as follows: (i) if hand delivered, when received,
(ii) if mailed, three days after being deposited postage prepaid in the United
States mail, and sent via certified mail, return receipt requested, (iii) if
faxed, on the date of the fax confirmation, or (iv) if mailed for overnight
delivery, when delivered by the overnight delivery carrier, if to SFI, to the
Vice President of Operations or to the Contracts Manager at the address set
forth in the first paragraph of this Agreement, and if to You, to Your employee
identified in Exhibit A under the heading "Notices to You" at the address set
forth therein. Each party may change the address or title of the person to whom
notices will be sent by giving notice in the manner set forth herein.
14. GENERAL.
--------
A. This Agreement represents the complete and exclusive statement of the
mutual understanding of the parties with respect to the subject matter hereof
and supersedes and cancels all previous and contemporaneous written and oral
agreements and communications relating to the subject matter of this Agreement.
B. This Agreement may not be amended, supplemented, or otherwise modified
except by an instrument in writing signed by each of the parties hereto.
C. You agree to cooperate with SFI as reasonably necessary to permit SFI
to comply with the laws and administrative regulations of the United States
relating to the control of exports of commodities and technical data. You also
agree not to export or re-export directly or indirectly (including via remote
access) any of the computer software provided by SFI to You (including any
Confidential Information and Trade Secrets of SFI) to any country for which
export or re-export is forbidden or for which a validated license is required
under U.S. law. The parties agree that the United Nations Convention on
Contracts for the International Sale of Goods shall not apply to this Agreement
in any respect.
D. The exhibits referenced in this Agreement are attached hereto and
incorporated herein by reference. In case of any conflict between this
Agreement (excluding the exhibits) and one or more of the exhibits, the
provisions of this Agreement (excluding the exhibits) shall control and govern.
E. The invalidity or unenforceability of one or more provisions of this
Agreement shall not affect the validity or enforceability of any of the other
provisions hereof, and this Agreement shall be construed in all respects as if
such invalid or unenforceable provisions were omitted. Without limiting the
generality of the preceding sentence, if any remedy set forth in this Agreement
is determined to have failed of its essential purpose, then all other provisions
of this Agreement, including the limitation of liability and exclusion of
damages shall remain in full force and effect. The failure of either party to
exercise any of its rights under this Agreement shall not be deemed a waiver or
forfeiture of such rights.
F. This Agreement shall bind and inure to the benefit of each party hereto
and its respective successors and assigns. You may not assign, transfer, or
pledge this Agreement, or any interest, license, or rights of any kind herein,
in any manner, without the express written consent of SFI.
G. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original but all of which together shall be deemed for
all purposes to constitute one and the same instrument.
H. The titles of sections are for convenience of reference only and shall
not be deemed to be a part of this Agreement.
I. This Agreement shall be governed by and construed in accordance with
the laws of the State of Georgia without giving effect to the conflict of law
principles.
ATTACHED HERETO AND MADE A PART HEREOF: Exhibit A, Addendum 1.
IN WITNESS WHEREOF, each party has executed this Agreement as of the
effective date set forth in Exhibit A and represents and warrants to the other
that it is legally free to enter into this Agreement and that its execution has
been duly authorized.
YOU:
SFI:
TECHNOLOGY VENTURES, L.L.C. SQL FINANCIALS INTERNATIONAL, INC.
▇▇▇▇▇▇ CONSULTING GROUP, INC. D/B/A SQL FINANCIALS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------- -----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Titles: Sole Manager, Technology Title: President
Ventures, L.L.C.
President, ▇▇▇▇▇▇ Consulting
Group, Inc.
Date: February 5, 1998 Date: February 5, 1998
---------------------------- --------------------------------
ADDENDUM 1
TO THE SQL FINANCIALS INTERNATIONAL, INC.
SOFTWARE LICENSE AND SUPPORT AGREEMENT WITH
TECHNOLOGY VENTURES, L.L.C. AND ▇▇▇▇▇▇ CONSULTING GROUP, INC.
THIS ADDENDUM 1 ("Addendum 1") is by and between SQL FINANCIALS
INTERNATIONAL, INC. d/b/a SQL Financials(R) ("SFI") and TECHNOLOGY VENTURES,
L.L.C. and ▇▇▇▇▇▇ CONSULTING GROUP, INC. ("You" and "Your") and amends the
Software License and Support Agreement between SFI and You of even date herewith
(the "Agreement").
For and in consideration of the representations set forth herein, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. PRECEDENCE OF ADDENDUM.
-----------------------
The Addendum shall be considered a part of the Agreement as if fully set
forth therein. However, if any term or condition of the Addendum conflicts
with any term or condition of the Agreement, then such term or condition of the
Addendum shall control.
2. DEFINITIONS.
------------
A. Section 1.B. of the Agreement is hereby deleted in its entirety and
replaced with the following:
"Application means any one of the computer software programs comprising the
-----------
Software as set forth in Exhibit A, including any additional Software provided
to You by SFI from time to time (i.e. Order Entry, Inventory Management and/or
Treasury Management Software as set forth below)."
B. Section 1.C. of the Agreement is hereby deleted in its entirety and
replaced with the following:
"Application Fee means the consideration paid or given by You as specified
---------------
in Exhibit A for the licensing rights to the Software and Third-Party Software."
3. DELIVERY AND IMPLEMENTATION
---------------------------
The first sentence of Section 3.A. of the Agreement is hereby deleted in
its entirety and replaced with the following:
"SFI shall deliver one copy of all Software and Third-Party Software to You
promptly upon its general availability. In the event SFI, in its sole
discretion, develops, or acquires the right from a third party(s) to sublicense,
without additional payment to the Third-Party, Software designed for Order
Entry, Inventory Management, or Treasury Management, SFI agrees to deliver such
Software to You promptly upon its general availability."
4. TERM.
-----
A. The second and third sentences of Section 4.A. of the Agreement are
hereby deleted in their entirety and replaced with the following:
"Notwithstanding the foregoing, the Support Terms shall become effective on
the effective date of this Agreement and shall remain in full force and effect
thereafter for an initial term ending December 31, 1998, unless earlier
terminated as provided in this Section 4.A. or in Section 4.B. At the end of
each term of the Support Terms, the Support Terms will automatically renew for
successive one-year terms, provided Technology Ventures, L.L.C. continues to
own at least 100,000 shares of the outstanding common stock of SFI (the
"Ownership Interest"). In the event Technology Ventures, L.L.C. does not retain
an Ownership Interest in SFI, You may renew the Support Terms by paying SFI for
such support at SFI's then-current list price for such support."
5. SUPPORT TERMS.
--------------
Section 5.A. of the Agreement is hereby deleted in its entirety and
replaced with the following:
"SFI agrees to provide the support services as described in this Section 5
during each term of these Support Terms provided You have not made any changes
to the Software."
6. LIMITATION OF LIABILITY.
------------------------
The second sentence of Section 9.B. is hereby deleted in its entirety.
7. CHANGE OF OWNERSHIP.
--------------------
As of the effective date (as to Technology Ventures, L.L.C.) of this
Agreement, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ holds a controlling interest in Technology Ventures,
L.L.C., which has a controlling interest in ▇▇▇▇▇▇ Consulting Group, Inc. In
the event the controlling interest in Technology Ventures, L.L.C. is no longer
held by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, or Technology Ventures, L.L.C. no longer holds a
controlling interest in ▇▇▇▇▇▇ Consulting Group, Inc., SFI may, at its sole
discretion, impose an annual support fee. Any fees imposed under this section
shall be due and payable within thirty (30) days after the date of the invoice.
For the purposes of this paragraph, "controlling interest" shall mean a majority
ownership interest in either Technology Ventures, L.L.C. or ▇▇▇▇▇▇ Consulting
Group, Inc.
In the event that a competitor of SFI becomes a holder of any interest in
Technology Ventures, L.L.C. or ▇▇▇▇▇▇ Consulting Group, Inc., or Technology
Ventures, L.L.C. or ▇▇▇▇▇▇ Consulting Group, Inc. become a holder of any
interest in a competitor of SFI, SFI may, at its sole discretion either (a)
terminate this Agreement in its entirety with no penalty, and You must comply
with Section 4.C. of the Agreement; or (b) impose a license fee for the Software
or an annual support fee or both. Any fees imposed under this section shall be
due and payable within thirty (30) days after the date of the invoice.
IN WITNESS WHEREOF, each party has executed this Addendum 1 as of the
effective date set forth in Exhibit A and represents and warrants to the other
that it is legally free to enter into this agreement and that its execution has
been duly authorized.
YOU: SFI:
TECHNOLOGY VENTURES, L.L.C. SQL FINANCIALS INTERNATIONAL, INC.
▇▇▇▇▇▇ CONSULTING GROUP, INC. D/B/A SQL FINANCIALS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------ -----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Titles: Sole Manager, Technology Title: President
Ventures, L.L.C.
President, ▇▇▇▇▇▇ Consulting
Group, Inc.
Date: February 5, 1998 Date: February 5, 1998
----------------------------- ----------------------------------