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Exhibit 10.10
SOFTWARE LICENSE AGREEMENT
This License Agreement (hereinafter "Agreement") is made and entered
into, as of the date of final signature by both parties as set forth below, by
and between Summus, Ltd. with its principal place of business located at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter referred to as "Licensor") and
Raytheon Company, acting by and through its Electronic Systems Division, with
offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter referred to as
("Licensee").
Whereas, Licensor warrants that it has developed at private expense and
is the owner of the right, title and interest in and to certain Summus Wavelet
Compression Software (hereinafter defined and referred to as "Licensed
Software");
Whereas, Licensee is under contract with the U.S. Government in
connection with the so-called "ASTAMIDS DEM/VAL" program (hereinafter "Program")
which Program presently extends through November 1996 (unless otherwise extended
by agreement with the Government); and
Whereas, Licensee desires to obtain the right and license to (a) use
the Licensed Software in connection with the performance of its contract for the
Program, (b) incorporate the Licensed Software into certain DAP machines to be
supplied to the U.S. Government in connection with the Program and (c) to
provide the Licensed Software to the U.S. Government in accordance with the
applicable Federal Procurement Regulations cited below; and
Whereas, Licensor is willing to grant Licensee such rights and licenses
subject to the terms and conditions set forth below.
Now, therefore, in consideration of the promises and the mutual
covenants and agreements contained herein, Licensor and Licensee hereby agree as
follows:
1. DEFINITIONS
The Licensed Software shall mean Licensor's Still Image Compression
Software including associated user documentation. Five (5) copies of
the Licensed Software shall be deliverable to Licensee as wavelet
compression software (object/DLL) for use in a DAP operating system
pursuant to the terms of this Agreement, including delivery of source
code for selected portions thereof as mutually agreed in writing by the
parties. The five (5) copies of Licensed Software to be supplied
hereunder may be adapted by Licensor pursuant to the terms of the
related subcontract between the parties referred to in Section 3 below.
The licenses granted herein with respect to Licensed Software shall
include any such adaptations incorporated in the five (5) licensed
copies by Licensor. "DLL" means digital linked library.
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2. DELIVERY
Licensor shall deliver five (5) copies of the Licensed Software to
Licensee for use by Licensee solely in accordance with the provisions
of this Agreement and for incorporation in the five (5) DAP machines to
be supplied to the Government in connection with the Program.
3. ANCILLARY SERVICES AND TECHNICAL SUPPORT
In connection with Licensee's use of the Licensed Software and its
incorporation in the five (5) DAP machines to be supplied to the
Government in connection with the Program, Licensor shall provide
certain ancillary engineering, programming and support services to
Licensor in accordance with a separate subcontract (hereinafter
"Subcontract") between the parties.
4. PERFORMANCE GOALS
The acceptance criteria and performance goals for the Licensed Software
shall be as set forth in the Scope of Work attached as an exhibit to
the Subcontract.
5. LICENSE FEES AND PAYMENT
The license fee payable by Licensee for the rights and licenses granted
to it hereunder is Twenty Five Thousand Dollars ($25,000) payable as
follows:
(a) Twelve Thousand Five Hundred Dollars ($12,500) within thirty
(30) days after execution of this Agreement, execution of the
Subcontract and receipt of Licensor's invoice therefor; and
(b) Twelve Thousand Five Hundred Dollars ($12,500) within thirty
(30) days after delivery to Licensee of the Licensed Software
and Licensee's receipt of Licensor's invoice for same.
6. GRANT OF LICENSE
(a) Licensor hereby grants to Licensee:
(i) a non-exclusive license to use the Licensed Software
in its own operations solely in connection with and
for purposes of the performance of its contract for
the Program; and
(ii) a non-exclusive license to incorporate the Licensed
Software supplied by Licensor hereunder into the five
(5) DAP machines to be supplied by Licensee to the
U.S. Government solely in
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connection with and for purposes of the performance
of Licensee's contract for the Program; and
(iii) the right to transfer the Licensed Software received
hereunder to the U.S. Government in accordance with
the Restricted Rights provisions of Clause
252.227-7013 of the Defense Acquisition Regulations
or equivalent Federal Procurement Regulations
providing for restricted rights in commercial
software; and
(iv) the right to make one (1) back-up copy of the
Licensed Software.
(b) The above references to DFAR 252.227-7013 are based on
Licensor's representation that the Licensed Software is
commercial software developed at private expense. It is
understood that any technical data or software which is first
developed at Government expense are subject to the applicable
Federal Procurement Regulations governing same. The rights and
licenses granted above with respect to the Licensed Software
include within their scope the Licensed Software as it may be
adapted by Licensor pursuant to the Subcontract, except that
the Government's rights with respect to any technical data,
invention or modification first made under the Subcontract at
Government expense shall be subject to the applicable DFAR
provisions set forth in the Subcontract.
(c) In order to be afforded benefit of the Restricted Rights
provisions referred to in Section 6(a)(iii) above, Licensor
shall be required to ▇▇▇▇ the Licensed Software with the
applicable Restricted Rights Legend required under DFAR
252.227-7013.
7. TERM AND TERMINATION
(a) This Agreement shall become effective upon execution of both
this Agreement and the related Subcontract. Unless terminated
by reason of Licensee's failure to pay amounts due under
Section 5 above, the licenses granted to Licensee hereunder
shall continue for so long as necessary to complete its
obligations to the Government under its contract for the
Program. The rights and licenses of the Government shall be in
accordance with the applicable procurement regulations
referred to above.
(b) In the event that Licensee is in breach of any payment
obligation under Section 5 above, Licensor may terminate this
Agreement upon thirty (30) days written notice to the Licensee
unless the alleged breach is cured within said thirty (30) day
period. In the event that Licensor is in
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breach of its obligations under Section 2 above, Licensee may
terminate this Agreement upon thirty (30) days written notice
to the Licensor unless the alleged breach is cured within said
thirty (30) day period. Termination shall not affect any
confidentiality obligations under the Proprietary Information
Agreement referred to in Section 7 below which obligations
shall survive for the period stated in said Proprietary
Information Agreement.
8. PROPRIETARY INFORMATION
Licensor represents that the Licensed Software incorporates
confidential proprietary information and Licensee agrees to treat such
information in accordance with the requirements of the Proprietary
Information Agreement of February 1, 1994 except that, notwithstanding
anything in said Proprietary Information Agreement to the contrary:
(a) In order to be afforded protection hereunder, the Licensed
Software and any related proprietary information must be
identified by Licensor in human readable form with Licensor's
name and statement of its proprietary nature;
(b) Licensee may provide the Licensed Software to the U.S.
Government in accordance with the provisions of Section 6
above;
(c) Licensee may disclose Licensor's proprietary information to
its employees in connection with the authorized uses of the
Licensed Software provided that such parties are subject to
appropriate obligations of confidentiality and solely to the
extent required in connection with Licensee's performance of
its contract for the Program; and
(d) Licensee may disclose Licensor's proprietary information (in
object code/DLL form only) to its subcontractors, other
companies which may be team members for the Program, vendors,
consultants and affiliates if such disclosure is reasonably
required in connection with the continued performance of the
contract for the Program and provided that such parties have
undertaken appropriate confidentiality obligations at least as
restrictive as those contained herein.
(e) Licensee's obligations under this Section 8 shall not exceed
use of the customary degree of care which it exercises in
protecting its own proprietary information of similar
character (Licensor's source code documentation shall be
treated with the same degree of care as Licensee treats its
own source code documentation of similar character)
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and in no event will Licensee be liable if such standard of
care is used. Licensee shall identify to Licensor each
individual within Licensee's organization who receives
Licensor source code within fifteen (15) business days of the
date such individual receives such source code.
9. WARRANTIES
(a) Licensor represents and warrants that it owns the entire
right, title and interest in the Licensed Software and that it
has all necessary rights to grant the rights and licenses
contained herein.
(b) Licensor represents and warrants that there have been no
claims of infringement with respect to the Licensed Software
and that to the best of its knowledge and reasonable belief
the use of the Licensed Software in the manner authorized
herein does not infringe any third party patent, copyright or
other intellectual property right.
(c) Licensor warrants that, at the time of delivery hereunder, the
Licensed Software supplied by Licensor hereunder shall perform
in substantial accordance with the mutually agreed performance
goals and applicable user documentation and Licensor shall, as
its sole liability with respect to such warranty, provide
reasonable debugging and support services to Licensee.
(d) Licensee is responsible for selection of the Licensed Software
as suitable for its intended purposes and Licensor does not
warrant that the Licensed Software is suitable for such
purposes or that operation of the Licensed Software will be
uninterrupted and error free and Licensor shall have no
obligation hereunder with respect to Licensee's reliance on
the results obtained from the use of Licensed Software.
(e) Neither party to this Agreement shall, under any
circumstances, be liable for loss of business or profits or
any consequential, incidental, punitive or similar damages for
any cause whatsoever, whether in contract or in tort,
including negligence.
10. ENTIRE AGREEMENT
This document, the associated Purchase Order/Subcontract, the
associated Statement of Work and associated Proprietary Disclosure
Agreement contains the entire agreement between the parties related to
the Licensed Software and associated services and may be amended only
by written amendment executed by the respective duly authorized
representative of each party.
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11. INDEPENDENCE OF PARTIES
Each party hereto shall act as an independent contractor and not as an
agent or partner of or joint venturer of the other.
12. TRANSFERABILITY
This Agreement may not be assigned or transferred by either party, in
whole or in part, without the prior written consent of the other party,
with the following exceptions:
(a) Licensee may assign this Agreement to any wholly owned
subsidiary of Licensee which agrees in writing to be bound by
the terms hereof but only if and to the extent required in
connection with the continued performance of the contract for
the Program; and
(b) Licensee may assign this Agreement to any party acquiring all
or substantially all of its business and assets related to the
Program which agrees in writing to be bound by the terms
thereof.
13. REPRESENTATION AS TO RIGHT TO ENTER THIS AGREEMENT
Both parties represent and warrant that they have the right to enter
into this Agreement and that there are no outstanding assignments,
grants, licenses, encumbrances, obligations or agreements, either
written or oral or implied, inconsistent with this Agreement.
14. ARBITRATION
In the event of any dispute between the parties concerning the
performance or nonperformance of the provisions of this Agreement, such
disputes shall be conclusively determined by and under the rules of the
American Arbitration Association. The site of any arbitration shall be
Atlanta, Georgia. The prevailing party shall be entitled to recover all
costs incurred, including reasonable attorneys' fees, which shall be
awarded as a part of the arbitrator's decision. The arbitrator's
decision shall be considered final and binding upon the parties and may
be entered as a judgment in any court of competent jurisdiction. The
award of the arbitrator(s) may include compensatory damages against
either party but under no circumstances will the arbitrator(s) be
authorized to, nor shall the arbitrator(s) award punitive,
consequential or multiple damages against either party.
15. NOTICES
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All notices given hereunder shall be in writing and directed to ▇▇▇▇▇
▇▇▇▇▇, Summus, Ltd., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇, ▇▇ ▇▇▇▇▇ in the case
of notices to Licensor and to Raytheon Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇. ▇▇▇▇▇▇, Manager, Development
Subcontracts M/S T2FN9 in the case of notices to Licensee.
In Witnesseth whereof, the parties hereto have executed this Agreement
in duplicate effective as of the date first set forth above on page 1 hereof.
Agreed: Agreed:
SUMMUS, LTD. RAYTHEON COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: President Title: Manager, Subcontracts
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Date: 2/21/95 Date: 2/23/95
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