SOFTWARE LICENSE AGREEMENT
This Agreement is entered into on December 19, 1997, by and between ▇▇▇▇▇
▇. Cinnamon, a individual residing at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ("Publisher"), and Software Publishing Corporation, a Delaware
corporation with offices at ▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
("Developer").
BACKGROUND
WHEREAS, Developer has investigated and has commenced certain development
activities with respect thereto of an Internet database reporting software
product tentatively entitled "Metareport" (the "Software"), and Publisher
desires to develop, market, publish and distribute copies of the Software on an
exclusive basis, under a name to be selected by Publisher.
NOW THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS
(a) Software means the Software, including any and all associated patents
to the extent that the same are utilized by the Software
(b) Software Package means a package intended for marketing and including a
copy of the Software (in executable object code form only) a license agreement,
and other supplementary materials, as determined in the sole discretion of
Publisher.
(c) End User means a person or entity that acquires a Software for use
rather than resale or distribution.
(d) OEM means a person or entity that acquires an interest in the Software
for incorporation as a component of its product or products or as a separate
product.
2. GRANT OF LICENSE
Developer hereby grants to Publisher the exclusive perpetual world-wide
right to use, copy, modify, enhance, prepare derivative works based upon,
manufacture, package, market, distribute, display, sell, lease and otherwise
transfer copies of the Software under any name selected by Publisher, and not
any other aspect of the Developer's Intelligent Formatting technology. Publisher
may also sublicense the foregoing rights; provided, that the royalties set forth
in Section 7 hereof shall apply to any such sublicense. Notwithstanding anything
to the contrary set forth herein, (a) the Developer and any and all subsidiaries
and affiliates of the Developer shall at all times have the right to use the
Software and the Software Package internally, for its and their own accounts and
benefits and (b) the Developer shall own all Software derivative works licensed
to Publisher pursuant hereto. The Company will not market or sell any product
which is competitive with the
Software for two (2) years after the date hereof and the Company shall not
at any time use any Software derivative works developed by Publisher in
connection with products which are competitive with the Software.
3. DELIVERY
Within 90 days of the date hereof, Developer shall deliver to Publisher one
copy of the Software (in both source and executable object code form, to the
extent available) in the Software's current form and all related documentation,
plans, pre-cursor software (to the extent available), tools and modules.
4 PRODUCT NAME
Publisher may, in its sole discretion, select the name(s) under which the
Software will be marketed (the "Product Name"). Publisher shall own all right,
title and interest in and to such Product Name, and all use thereof shall inure
to the benefit of Publisher. Developer shall have the right to refer to such
Product Name for promotional purposes.
5. MARKETING
(a) Marketing Efforts. Publisher shall determine, in Publisher's reasonable
discretion, the manner and method of marketing and distribution of the Software,
including, but not limited to, marketing expenditures, advertising and
promotion, packaging, channels of distribution and any suggested retail or other
price of the Software. Publisher makes no guarantee of success regarding
Publisher's efforts under this Agreement and makes no commitment whatever with
respect to revenue to be achieved or Royalties to be earned from the Software.
(b) Marketing Costs. Except as expressly set forth herein, Publisher will
bear all costs of manufacturing, marketing and distributing the Software.
(c) Right to Discontinue Marketing. Developer acknowledges that there is no
assurance that the Software will be successfully introduced in the marketplace
or that the Software will generate any specified amount of Royalties payable to
Developer. Developer further agrees that Publisher shall have the right, in
Publisher's sole discretion, to discontinue marketing and/or exploitation of any
or all of the Software at any time, in which event the license granted by this
Agreement shall become non-exclusive
(d) Right to Develop and Market Similar Software. Nothing contained in this
Agreement shall be construed as prohibiting Publisher from developing and
marketing software which is similar in function to the Software, provided that
such software is developed without infringement of Developer's trade secret and
other proprietary rights.
6. SUPPORT FOR END USERS OR OTHERS
Developer shall have no obligation to provide technical support to any End
Users or users of the Software.
7. ROYALTIES
(a) Royalties. Publisher shall pay Royalties to Developer equal to:
(1) two (2%) percent of Publisher's Net Receipts with respect to sales
to End-Users; and
(2) Fifteen (15%) of any and all consideration received by Publisher
in connection with the sale, assignment, license to OEMs (i.e.
other than End-Users) of this Agreement, the license granted under
this Agreement or the Software in any manner, directly or
indirectly, including the incremental value of any employment,
consulting or non-competition agreement entered into by Publisher
or any affiliate thereof with any such transferee, assignee or
licensee or any affiliate thereof to the extent exceeding $250,000
per year.
(b) Net Receipts. For purposes of this Agreement, "Net Receipts" shall mean
cash or cash equivalents received by Publisher in connection with the licensing,
sale or other commercial exploitation of the Software, less (i) returns and
customary credits and refunds consistent with normal business practices and (ii)
any federal, state or foreign sales, excise or other taxes or tariffs imposed on
the Software (not including any tax based on Publisher's net income).
(c) Payment. Within 45 days after the end of each calendar quarter,
Publisher shall remit to Developer the Royalties due on Net Receipts received by
Publisher during the immediately preceding calendar quarter and provide
Publisher with a written report specifying the Software shipped, sold or
licensed during such quarter, the Net Receipts received by Publisher during such
quarter and the calculation of the Royalties due to Developer in connection
therewith.
(d) Books and Records. Publisher agrees to maintain adequate books and
records relating to the production and distribution of the Software, and the
receipt of payment with respect thereto. Such books and records shall be
available at their place of keeping for inspection by an independent certified
public accountant chosen and paid by Developer to audit and analyze appropriate
and relevant accounting records of Publisher at Publisher's premises to verity
accurate and full accounting for and payment of all moneys due Developer
hereunder. Any such audit shall be permitted during business hours upon three or
more days' advanced written request. Developer may conduct such audit once per
year in a manner so as not to unreasonably interfere with Publisher's normal
business.
(e) Demo Disks. Publisher may, in its sole discretion, prepare, manufacture
and distribute a limited version of the Software for the purpose of
demonstrating the Software (the
"Demo Disk"). No Royalties will be due to Developer with respect to any use
or distribution of Demo Disks.
(f) Evaluation Copies. Publisher may, in its sole discretion, distribute
copies of the Software at no charge for the purpose of demonstrating the
Software or for other promotional purposes (the "Evaluation Copies"). No
Royalties will be due to Developer with respect to any use or distribution of
Evaluation Copies.
8. WARRANTY BY DEVELOPER
(a) Authority. Developer represents and warrants to Publisher that
Developer has the full right, power and authority to enter into and perform this
Agreement.
9. LIMITATION OF LIABILITY
THE LIABILITY OF EITHER PARTY TO THE OTHER SHALL BE LIMITED TO DIRECT
DAMAGES AND SHALL NOT EXCEED THE AMOUNT OF THE ROYALTIES PAID BY PUBLISHER TO
DEVELOPER HEREUNDER. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR INCIDENTAL,
SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) SUFFERED BY THE
OTHER, EVEN IF IT HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
10. TERM AND TERMINATION
(a) Term. This Agreement shall become effective on the date set forth above
and shall continue until terminated by either party as set forth in this
Section.
(b) Software Not Accepted. Developer may terminate this Agreement if
Publisher has not accepted the Software by March 15, 1998.
(c) Material Breach. Either party may terminate this Agreement for any
material breach of this Agreement by the other party that is not cured within 30
days of written notice.
(d) Events on Termination. Notwithstanding termination or expiration of
this Agreement for any reason whatsoever, Publisher shall have the continuing
right to market and distribute the Software manufactured prior to the effective
date of termination or expiration. Termination of this Agreement shall not
release Publisher from its obligation to pay Developer any Royalties which
accrued prior to such termination or which shall accrue to Developer after the
effective date of such termination.
(e) Right to Retain Use. No termination of this Agreement for any reason
whatsoever shall limit in any way Publisher's right to use the Software for its
own purposes and for the purpose of providing technical support to End Users of
the Software, but Publisher may not manufacture or distribute copies of the
Software except as expressly provided herein.
(f) Sublicenses Upon Termination. Any sublicenses granted by Publisher
prior to the termination of this Agreement shall survive such termination
provided that continuing royalty obligations are complied with and such
sublicense has been granted in accordance with this Agreement.
11. GENERAL PROVISIONS
(a) Assignment. This Agreement may not be assigned by Publisher or by
operation of law to any other person, persons, firms, or corporation without the
express written approval of Developer, which approval will not be unreasonably
withheld. Notwithstanding the foregoing, Publisher may assign this Agreement to
a corporation of which Publisher is a majority stockholder.
(b) Notices. All requests, demands, notices and other communications
required or otherwise given under this Agreement shall be sufficiently given if
delivered by hand against written receipt therefor, or forwarded by overnight
courier, facsimile transmission or mailed by registered or certified mail,
postage prepaid, addressed as follows:
If to the Publisher, to: ▇▇▇▇▇ ▇. Cinnamon
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Developer, to: Software Publishing Corporation Holdings, Inc.
▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
With a Copy to: ▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
or, in the case of any of the parties hereto, at such other address as such
party shall have furnished in writing, in accordance with this Paragraph 11(b),
to each of the other parties hereto. Each such request, demand, notice or other
communication shall be deemed given (i) on the date of delivery by hand, or by
facsimile transmission, (ii) on the first business day following the date of
delivery to an overnight courier or (iii) three business days following mailing
by registered or certified mail.
(c) Successors and Assigns: Holders as Beneficiaries. This Agreement shall
inure to the benefit of and be binding upon the parties and their respective
successors and assigns. Nothing in this Agreement shall be deemed to impose on
any of the Rightsholders any obligations to or in respect of any other
Rightsholder.
(d) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
conflicts of laws principles thereof.
(g) Severability: Specific Enforcement. In the event that any one or more
of the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal, or unenforceable in any respect of any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained herein shall not be in
any way impaired thereby, it being intended that all of the rights and
privileges of the parties hereto shall be enforceable to the fullest extent
permitted by law. Each of the parties hereto acknowledge that the other party
hereto would not have an adequate remedy at law for money damages in the event
that any of the covenants or agreements of any other party in this Agreement
were not performed in accordance with its terms and therefore agrees that the
other parties shall be entitled to specific enforcement of such covenants or
agreements and to injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) Entire Agreement; Survival; Termination. This Agreement is intended by
the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and therein.
There are no restrictions, promises, warranties or undertakings, with respect to
the subject matter hereof, other than those set forth or referred to herein and
therein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matters.
(i) Relationship of the Parties. Each party is acting as an independent
contractor and not as an agent, partner, or joint venturer with the other party
for any purpose. Except as provided in this Agreement, neither party shall have
any right, power, or authority to act or to create any obligation, express or
implied, on behalf of the other.
(j) Force Majeure. Neither party shall be responsible for delays or failure
of performance resulting from acts beyond the reasonable control of such party.
Such acts shall include, but not be limited to, acts of God, strikes, walkouts,
riots, acts of war, epidemics, failure of suppliers to perform, governmental
regulations, power failure(s), earthquakes, or other disasters.
(k) Survival of Certain Provisions. The warranties and indemnification and
confidentiality obligations set forth in the Agreement shall survive the
termination of this Agreement by either party for any reason.
(h) All Amendments In Writing. No provisions in either party's purchase
orders, or in any other business forms employed by either party will supersede
the terms and conditions of this Agreement, and no supplement, modification, or
amendment of this Agreement shall be binding, unless executed in writing by a
duly authorized representative of each party to this Agreement.
(i) Entire Agreement. The parties have read this Agreement and agree to be
bound by its terms, and further agree that it constitutes the complete and
entire agreement of the parties and supersedes all previous communications, oral
or written, and all other communications between them relating to the license
and to the subject matter hereof. No representations or statements of any kind
made by either party, which are not expressly stated herein, shall be binding on
such party.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first specified above.
"DEVELOPER" "PUBLISHER"
SOFTWARE PUBLISHING CORPORATION ▇▇▇▇▇ ▇. CINNAMON
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. Cinnamon
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. Cinnamon
Title: Vice President and Chief Operating
Officer