Exhibit 10.1
PURCHASE ORDER
------------------------------
THIS NUMBER MUST APPEAR ON ALL
DOCUMENTS AND PACKAGES
------------------------------
P.O. 28620
------------------------------
DATE 12/ 29/03 PAGE 1
------------------------------
[Omitted [OMITTED CUSTOMER NAME](1)
Trademark] CORPORATE PURCHASING
[OMITTED ADDRESS]
PHONE [OMITTED]
FAX [OMITTED]
087463 0002
SELLER RAPIDTRON SHIP TO: [OMITTED CUSTOMER NAME]
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ CLUB: BLANKET PURCHASE ▇▇▇▇▇
▇▇▇▇. ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Contact: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
DATE REQUIRED SEE BELOW SHIP VIA LOWEST- COST PROVIDER
FOB DELIVERED TERMS See Remarks
----------------------------
SELLER ACKNOWLEDGMENT
____________________________
----------------------------
---------------------------------------------------------------------------
PART NO. & DESCRIPTION QTY REC B/O PRICE(2) PER AMOUNT
---------------------------------------------------------------------------
22902 SATELLITE 0 [OMITTED] EA 0.00
ENTRY/EXIT TURNSTILE
(W/1 SATELLITE + SR/RF ANT)
22950 COMMUNICATIONS UNIT 0 [OMITTED] EA 0.00
COMPLETE
21505 POWER SUPPLY 0 [OMITTED] EA 0.00
21912 SUPPLY CABLE AND CONNECTORS 0 [OMITTED] EA 0.00
21706 ECM-READER SOFTWARE 0 [OMITTED] EA 0.00
21919 TURNSTILE BASE 0 [OMITTED] EA 0.00
COVER
---------------------------------------------------------------------------
(1) The customer name has been omitted as confidential and filed separately with
the SEC.
(2) The price has been omitted as confidential and filed separately with the SEC
TOTAL:
REQUESTED BY: RECEIVED BY:
DATE:
INSTRUCTIONS TO SUPPLIERS:
1. THIS ORDER IS SUBJECT TO THE INSTRUCTIONS LISTED BELOW AND THE TERMS AND
CONDITIONS PRINTED ON THE REVERSE SIDE HEREOF. WE RESERVE THE RIGHT TO
CANCEL IF NOT FILLED AS SPECIFIED.
2. SELLER MUST SIGN THE ACKNOWLEDGMENT COPY OF THIS PURCHASE ORDER AND RETURN
IT TO US IMMEDIATELY.
3. PACKING LIST MUST ACCOMPANY ALL DELIVERIES.
4. ORDER NUMBER MUST APPEAR ON ALL INVOICES, BILLS OF LADING, CORRESPONDENCE
AND PACKING LIST.
5. ▇▇▇▇ EACH SHIPPING CONTAINER TO SHOW ITEM CODE, DESCRIPTION OF CONTEXT,
PURCHASE ORDER NUMBER AND QUANTITY.
6. INVOICE MUST BE IN OUR HANDS NO LATER THAN 5 DAYS AFTER SHIPMENT.
7. ▇▇▇▇ OF LADING MUST ACCOMPANY ALL INVOICES.
8. PLEASE ADVISE US IMMEDIATELY IF DELIVERY CANNOT BE MADE AS REQUESTED.
--------------------------------------------------------------------------------
AUTHORIZED SIGNATURE
--------------------------------------------------------------------------------
AUTHORIZED SIGNATURE
EXECUTIVE APPROVAL ($1000.00 OR MORE)
SELLER-WHITE ACKNOWLEDGMENT-GREEN ACCOUNTS PAYABLE-PINK RECEIVING-CANARY
BUYER-BLUE
PURCHASE ORDER
------------------------------
THIS NUMBER MUST APPEAR ON ALL
DOCUMENTS AND PACKAGES
------------------------------
P.O. 28620
------------------------------
DATE 12/ 29/03 PAGE 2
------------------------------
[Omitted [OMITTED CUSTOMER NAME](1)
Trademark] CORPORATE PURCHASING
[OMITTED ADDRESS]
PHONE [OMITTED]
FAX [OMITTED]
087463 0002
SELLER RAPIDTRON SHIP TO: [OMITTED CUSTOMER NAME]
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ CLUB: BLANKET PURCHASE ▇▇▇▇▇
▇▇▇▇. ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Contact: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
DATE REQUIRED SEE BELOW SHIP VIA LOWEST- COST PROVIDER
FOB DELIVERED TERMS See Remarks
----------------------------
SELLER ACKNOWLEDGMENT
____________________________
----------------------------
---------------------------------------------------------------------
PART NO. & DESCRIPTION QTY REC B/O PRIC(2) PER AMOUNT
---------------------------------------------------------------------
22940 SSGX WAIST HIGH 0 [OMITTED] EA 0.00
SECURITY GATE
(W/PAIL- SAFE LOCK 90DEGRESS)
26810 TIMER RELAY ADAGATE 0 [OMITTED] EA 0.00
26802 TWO LANE-PUSH 0 [OMITTED] EA 0.00
BUTTON RELEASE
AX400 FLT AUTOMATIC 0 [OMITTED] EA 0.00
SWING GATE SYSTEM
( 180 DEGREES ELECTRIC )
22960 LIGHTS 0 [OMITTED] EA 0.00
39.5 X 2.25" 0 [OMITTED] EA 0.00
POST WITH BASE & END CAPS
( SSG-LO-SSS )
---------------------------------------------------------------------
(1) The customer name has been omitted as confidential and filed separately with
the SEC.
(2) The price has been omitted as confidential and file separately with the SEC
TOTAL:
REQUESTED BY: RECEIVED BY:
DATE:
INSTRUCTIONS TO SUPPLIERS:
9. THIS ORDER IS SUBJECT TO THE INSTRUCTIONS LISTED BELOW AND THE TERMS AND
CONDITIONS PRINTED ON THE REVERSE SIDE HEREOF. WE RESERVE THE RIGHT TO
CANCEL IF NOT FILLED AS SPECIFIED.
10. SELLER MUST SIGN THE ACKNOWLEDGMENT COPY OF THIS PURCHASE ORDER AND RETURN
IT TO US IMMEDIATELY.
11. PACKING LIST MUST ACCOMPANY ALL DELIVERIES.
12. ORDER NUMBER MUST APPEAR ON ALL INVOICES, BILLS OF LADING, CORRESPONDENCE
AND PACKING LIST.
13. ▇▇▇▇ EACH SHIPPING CONTAINER TO SHOW ITEM CODE, DESCRIPTION OF CONTEXT,
PURCHASE ORDER NUMBER AND QUANTITY.
14. INVOICE MUST BE IN OUR HANDS NO LATER THAN 5 DAYS AFTER SHIPMENT.
15. ▇▇▇▇ OF LADING MUST ACCOMPANY ALL INVOICES.
16. PLEASE ADVISE US IMMEDIATELY IF DELIVERY CANNOT BE MADE AS REQUESTED.
--------------------------------------------------------------------------------
AUTHORIZED SIGNATURE
--------------------------------------------------------------------------------
AUTHORIZED SIGNATURE
EXECUTIVE APPROVAL ($1000.00 OR MORE)
SELLER-WHITE ACKNOWLEDGMENT-GREEN ACCOUNTS PAYABLE-PINK RECEIVING-CANARY
BUYER-BLUE
PURCHASE ORDER
------------------------------
THIS NUMBER MUST APPEAR ON ALL
DOCUMENTS AND PACKAGES
------------------------------
P.O. 28620
------------------------------
DATE 12/ 29/03 PAGE 2
------------------------------
[Omitted [OMITTED CUSTOMER NAME](1)
Trademark] CORPORATE PURCHASING
[OMITTED ADDRESS]
PHONE [OMITTED]
FAX [OMITTED]
087463 0002
SELLER RAPIDTRON SHIP TO: [OMITTED CUSTOMER NAME]
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ CLUB: BLANKET PURCHASE ▇▇▇▇▇
▇▇▇▇. ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Contact: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
DATE REQUIRED SEE BELOW SHIP VIA LOWEST- COST PROVIDER
FOB DELIVERED TERMS See Remarks
----------------------------
SELLER ACKNOWLEDGMENT
____________________________
----------------------------
---------------------------------------------------------------------
PART NO. & DESCRIPTION QTY REC B/O PRICE(2) PER AMOUNT
---------------------------------------------------------------------
22940 SSGX WAIST HIGH 0 [OMITTED] EA 0.00
SECURITY GATE
(W/PAIL- SAFE LOCK 90DEGRESS)
26810 TIMER RELAY ADAGATE 0 [OMITTED] EA 0.00
26802 TWO LANE-PUSH 0 [OMITTED] EA 0.00
BUTTON RELEASE
AX400 FLT AUTOMATIC 0 [OMITTED] EA 0.00
SWING GATE SYSTEM
( 180 DEGREES ELECTRIC )
22960 LIGHTS 0 [OMITTED] EA 0.00
39.5 X 2.25" 0 [OMITTED] EA 0.00
POST WITH BASE & END CAPS
( SSG-LO-SSS )
---------------------------------------------------------------------
(1) The customer name has been omitted as confidential and filed separately with
the SEC.
(2) The price has been omitted as confidential and file separately with the SEC
TOTAL:
REQUESTED BY: RECEIVED BY:
DATE:
INSTRUCTIONS TO SUPPLIERS:
17. THIS ORDER IS SUBJECT TO THE INSTRUCTIONS LISTED BELOW AND THE TERMS AND
CONDITIONS PRINTED ON THE REVERSE SIDE HEREOF. WE RESERVE THE RIGHT TO
CANCEL IF NOT FILLED AS SPECIFIED.
18. SELLER MUST SIGN THE ACKNOWLEDGMENT COPY OF THIS PURCHASE ORDER AND RETURN
IT TO US IMMEDIATELY.
19. PACKING LIST MUST ACCOMPANY ALL DELIVERIES.
20. ORDER NUMBER MUST APPEAR ON ALL INVOICES, BILLS OF LADING, CORRESPONDENCE
AND PACKING LIST.
21. ▇▇▇▇ EACH SHIPPING CONTAINER TO SHOW ITEM CODE, DESCRIPTION OF CONTEXT,
PURCHASE ORDER NUMBER AND QUANTITY.
22. INVOICE MUST BE IN OUR HANDS NO LATER THAN 5 DAYS AFTER SHIPMENT.
23. ▇▇▇▇ OF LADING MUST ACCOMPANY ALL INVOICES.
24. PLEASE ADVISE US IMMEDIATELY IF DELIVERY CANNOT BE MADE AS REQUESTED.
--------------------------------------------------------------------------------
AUTHORIZED SIGNATURE
--------------------------------------------------------------------------------
AUTHORIZED SIGNATURE
EXECUTIVE APPROVAL ($1000.00 OR MORE)
SELLER-WHITE ACKNOWLEDGMENT-GREEN ACCOUNTS PAYABLE-PINK RECEIVING-CANARY
BUYER-BLUE
PURCHASE ORDER
------------------------------
THIS NUMBER MUST APPEAR ON ALL
DOCUMENTS AND PACKAGES
------------------------------
P.O. 28620
------------------------------
DATE 12/ 29/03 PAGE 4
------------------------------
[Omitted [OMITTED CUSTOMER NAME](1)
Trademark] CORPORATE PURCHASING
[OMITTED ADDRESS]
PHONE [OMITTED]
FAX [OMITTED]
087463 0002
SELLER RAPIDTRON SHIP TO: [OMITTED CUSTOMER NAME]
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ CLUB: BLANKET PURCHASE ▇▇▇▇▇
▇▇▇▇. ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Contact: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
DATE REQUIRED SEE BELOW SHIP VIA LOWEST- COST PROVIDER
FOB DELIVERED TERMS See Remarks
----------------------------
SELLER ACKNOWLEDGMENT
____________________________
----------------------------
---------------------------------------------------------------------
PART NO. & DESCRIPTION QTY REC B/O PRICE PER AMOUNT
---------------------------------------------------------------------
WARRANT: RAPIDTRON WILL REPLACE AT THEIR EXPENSE ANY
PART (S) LISTED ON THE CALLY TOTAL FITNESS PURSHASE ORDER.
FREE OF CHARGE. INCLUDING FREIGHT FOR A PERIOD OF 24 MONTHS
FROM DATE OF INSTALLATION THAT ARE ASSOICIATED WITH THE TURNSTILE AND 1
YEARON READERS AND SCANNERS. UNLESS THE FAILURE IS THE RESULT OF MISUSE
(MISUSE DEFINED AS NAT BEING SED IN TH ENORMAL COURSE OF OPERATION).
RAPIDTRON WILL PROVIDE AN 800 NUMBERS FROM 7AM TO 6PM PACIFIC TIME
MONDAY - FRIDAY FOR HARDWARE. PARTS AND MAINTENACE SUPPORT.
RAPIDTRON WILL PROVIDE TO [OMITTED CUSTOMER NAME] ALL NECESSARY
DOCUMENTTION REQUIRED TO DEVELOP A [OMITTED CUSTOMER NAME] OPERATING
MANUAL.
RAPIDTRON WILL PROVIDE TO [OMITTED CUSTOMER NAME] ALL NECESSARY
DOCUMENTATION REQUIRED TO DEVELOP A [OMITTED CUSTOMER NAME] INSTALLATION
MANUAL.
RAPIDTRON WILL DEVELOP ALL NECESSARY SOFTWARE REQUIRED FOR THE
OPERATION OF THE RAPIDTRON TURNSTILE TO INTERACT WITH [OMITTED CUSTOMER NAME].
(1) The customer name has been omitted as confidential and filed separately with
the SEC.
TOTAL:
REQUESTED BY: RECEIVED BY:
DATE:
INSTRUCTIONS TO SUPPLIERS:
25. THIS ORDER IS SUBJECT TO THE INSTRUCTIONS LISTED BELOW AND THE TERMS AND
CONDITIONS PRINTED ON THE REVERSE SIDE HEREOF. WE RESERVE THE RIGHT TO
CANCEL IF NOT FILLED AS SPECIFIED.
26. SELLER MUST SIGN THE ACKNOWLEDGMENT COPY OF THIS PURCHASE ORDER AND RETURN
IT TO US IMMEDIATELY.
27. PACKING LIST MUST ACCOMPANY ALL DELIVERIES.
28. ORDER NUMBER MUST APPEAR ON ALL INVOICES, BILLS OF LADING, CORRESPONDANCE
AND PACKING LIST.
29. ▇▇▇▇ EACH SHIPPING CONTAINER TO SHOW ITEM CODE, DESCRIPTION OF CONTEXT,
PURCHASE ORDER NUMBER AND QUANTITY.
30. INVOICE MUST BE IN OUR HANDS NO LATER THAN 5 DAYS AFTER SHIPMENT.
31. ▇▇▇▇ OF LADING MUST ACCOMPANY ALL INVOICES.
32. PLEASE ADVISE US IMMEDIATELY IF DELIVERY CANNOT BE MADE AS REQUESTED.
--------------------------------------------------------------------------------
AUTHORIZED SIGNATURE
--------------------------------------------------------------------------------
AUTHORIZED SIGNATURE
EXECUTIVE APPROVAL ($1000.00 OR MORE)
SELLER-WHITE ACKNOWLEDGMENT-GREEN ACCOUNTS PAYABLE-PINK RECEIVING-CANARY
BUYER-BLUE
PURCHASE ORDER
------------------------------
THIS NUMBER MUST APPEAR ON ALL
DOCUMENTS AND PACKAGES
------------------------------
P.O. 28620
------------------------------
DATE 12/ 29/03 PAGE 5
------------------------------
[Omitted [OMITTED CUSTOMER NAME](1)
Trademark] CORPORATE PURCHASING
[OMITTED ADDRESS]
PHONE [OMITTED]
FAX [OMITTED]
087463 0002
SELLER RAPIDTRON SHIP TO: [OMITTED CUSTOMER NAME]
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ CLUB: BLANKET PURCHASE ▇▇▇▇▇
▇▇▇▇. ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Contact: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
DATE REQUIRED SEE BELOW SHIP VIA LOWEST- COST PROVIDER
FOB DELIVERED TERMS See Remarks
----------------------------
SELLER ACKNOWLEDGMENT
____________________________
----------------------------
---------------------------------------------------------------------
PART NO. & DESCRIPTION QTY REC B/O PRICE PER AMOUNT
---------------------------------------------------------------------
TOTAL FITNESS CMS SYSTEM IN A MANNER THAT IS DEEMED ACCEPTABLE TO
[OMITTED CUSTOMER NAME].
[OMITTED CUSTOMER NAME] WILL NOT BE RESPONSIABLE FOR ANY SOFTWARE
DEVELOPMENT OF 800 NUMBER INSTALLATION COSTS.
[OMITTED CUSTOMER NAME] WILL OWN RIGHTS TO ANY SOURCE CODE USED FOR
CMS/RAPIDTRON INTERGRATION AND OR OPERATION.
THE SOFTWARE LICENSE AGREEMENT ATTACHMENT "A" IS MADE PART OF THIS
PURCHASE ORDER AND ALL SUBSEQUENT RELEASES.
PRICING WILL BE HELD FIRM THRU 2004 UNTIL 100 TURSTILE SYSTEMS
ARE INSTALLED PER THE AGREED UPON INSTALLATION SCHEDULE.
THE SCHEDULE IS:
25 SYSTEMS JANUARY 2004
25 SYSTEMS FEBUARY 2004
25 SYSTEMS MARCH 2004
25 SYSTEMS APRIL 2004
PAYMENT TERMS FOR [OMITTED CUSTOMER NAME]:
1 The customer name has been omitted as confidential and filed separately with
the SEC.
TOTAL:
REQUESTED BY: RECEIVED BY:
DATE:
INSTRUCTIONS TO SUPPLIERS:
33. THIS ORDER IS SUBJECT TO THE INSTRUCTIONS LISTED BELOW AND THE TERMS AND
CONDITIONS PRINTED ON THE REVERSE SIDE HEREOF. WE RESERVE THE RIGHT TO
CANCEL IF NOT FILLED AS SPECIFIED.
34. SELLER MUST SIGN THE ACKNOWLEDGMENT COPY OF THIS PURCHASE ORDER AND RETURN
IT TO US IMMEDIATELY.
35. PACKING LIST MUST ACCOMPANY ALL DELIVERIES.
36. ORDER NUMBER MUST APPEAR ON ALL INVOICES, BILLS OF LADING, CORRESPONDANCE
AND PACKING LIST.
37. ▇▇▇▇ EACH SHIPPING CONTAINER TO SHOW ITEM CODE, DESCRIPTION OF CONTEXT,
PURCHASE ORDER NUMBER AND QUANTITY.
38. INVOICE MUST BE IN OUR HANDS NO LATER THAN 5 DAYS AFTER SHIPMENT.
39. ▇▇▇▇ OF LADING MUST ACCOMPANY ALL INVOICES.
40. PLEASE ADVISE US IMMEDIATELY IF DELIVERY CANNOT BE MADE AS REQUESTED.
--------------------------------------------------------------------------------
AUTHORIZED SIGNATURE
--------------------------------------------------------------------------------
AUTHORIZED SIGNATURE
EXECUTIVE APPROVAL ($1000.00 OR MORE)
SELLER-WHITE ACKNOWLEDGMENT-GREEN ACCOUNTS PAYABLE-PINK RECEIVING-CANARY
BUYER-BLUE
PURCHASE ORDER
------------------------------
THIS NUMBER MUST APPEAR ON ALL
DOCUMENTS AND PACKAGES
------------------------------
P.O. 28620
------------------------------
DATE 12/ 29/03 PAGE 6
------------------------------
[Omitted [OMITTED CUSTOMER NAME](1)
Trademark] CORPORATE PURCHASING
[OMITTED ADDRESS]
PHONE [OMITTED]
FAX [OMITTED]
087463 0002
SELLER RAPIDTRON SHIP TO: [OMITTED CUSTOMER NAME]
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ CLUB: BLANKET PURCHASE ▇▇▇▇▇
▇▇▇▇. ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Contact: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
DATE REQUIRED SEE BELOW SHIP VIA LOWEST- COST PROVIDER
FOB DELIVERED TERMS See Remarks
----------------------------
SELLER ACKNOWLEDGMENT
____________________________
----------------------------
---------------------------------------------------------------------
PART NO. & DESCRIPTION QTY REC B/O PRICE PER AMOUNT
---------------------------------------------------------------------
TURNSTILE SYSTEMS ARE TO BE INVOICED UPON COMPLETION OF INSTALLATION.
FIRST 25 SYSTEMS - NET [OMITTED PAYMENT DUE DATE](2)
SUBSEQUENT 75 SYSTEMS - NET [OMITTED PAYMENT DUE DATE]
(1) The customer name has been omitted as confidential and filed separately with
the SEC.
(2) The payment due date has been omitted as confidential and filed separately
with the SEC.
TAXABLE AMOUNT 0.00
REQUESTED BY: RECEIVED BY: TAX AMOUNT 0.00
DATE: FREIGHT TOTAL AMOUNT 0.00
INSTRUCTIONS TO SUPPLIERS:
41. THIS ORDER IS SUBJECT TO THE INSTRUCTIONS LISTED BELOW AND THE TERMS AND
CONDITIONS PRINTED ON THE REVERSE SIDE HEREOF. WE RESERVE THE RIGHT TO
CANCEL IF NOT FILLED AS SPECIFIED.
42. SELLER MUST SIGN THE ACKNOWLEDGMENT COPY OF THIS PURCHASE ORDER AND RETURN
IT TO US IMMEDIATELY.
43. PACKING LIST MUST ACCOMPANY ALL DELIVERIES.
44. ORDER NUMBER MUST APPEAR ON ALL INVOICES, BILLS OF LADING, CORRESPONDANCE
AND PACKING LIST.
45. ▇▇▇▇ EACH SHIPPING CONTAINER TO SHOW ITEM CODE, DESCRIPTION OF CONTEXT,
PURCHASE ORDER NUMBER AND QUANTITY.
46. INVOICE MUST BE IN OUR HANDS NO LATER THAN 5 DAYS AFTER SHIPMENT.
47. ▇▇▇▇ OF LADING MUST ACCOMPANY ALL INVOICES.
48. PLEASE ADVISE US IMMEDIATELY IF DELIVERY CANNOT BE MADE AS REQUESTED.
--------------------------------------------------------------------------------
AUTHORIZED SIGNATURE
--------------------------------------------------------------------------------
AUTHORIZED SIGNATURE
EXECUTIVE APPROVAL ($1000.00 OR MORE)
SELLER-WHITE ACKNOWLEDGMENT-GREEN ACCOUNTS PAYABLE-PINK RECEIVING-CANARY
BUYER-BLUE
ATTACHMENT "A" TO [OMITTED]1
Purchase Order 28620
-----
SOFTWARE LICENSE AGREEMENT
This Software License Agreement is entered into as of the 14th day of August,
2003 (the "Effective Date"), by and between [RAPIDTRON], a Nevada corporation
------
with an office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
("Licensor"), and [OMITTED], with an office at [OMITTED ADDRESS] ("[OMITTED]").
WHEREAS, [OMITTED] or its Affiliates may request that Licensor license the
Software and perform Maintenance Services and Licensor desires to license such
Software and to perform such Maintenance Services.
THEREFORE, in consideration of the mutual agreements below, and intending to be
legally bound, the parties agree:
_________________________
1 The name of the customer has been omitted as confidential and filed separately
with the SEC
1. DEFINITIONS
-----------
(1.1) "Affiliate" means any entity that controls, is controlled by, or is
---------
under common control with [OMITTED]. For purposes of this Agreement,
"control" means possessing, directly or indirectly, the power to direct or
cause the direction of the management, policies or operations of an entity,
whether through ownership of voting securities, by contract or otherwise.
(1.2) "Agreement" means this Software License Agreement, the Exhibits
---------
hereto, and any duly executed amendments thereto.
(1.3) "Customizations" means any Software programming developed, authored,
--------------
written and/or created by Licensor or its agents or subcontractors for or
on behalf of [OMITTED] in connection with this Agreement, including, but
not limited to, in connection with the implementation, installation, or
configuration of the Software.
(1.4) "Deposit Materials" means, collectively, the Source Code, the
------------------
functional specifications of the Software, object libraries, design
documentation, statements of principles of operations, schematics, and the
developer's guide and administrator's guide.
(1.5) "Documentation" means the user, operations and training manuals,
-------------
marketing materials, proposals, and responses to requests for information
or proposals, as well as any specifications reviewed by [OMITTED],
concerning the Software licensed hereunder.
(1.6) "Error" means any error in the code of the Software which prevents
-----
such Software from operating in accordance with: (i) the relevant
Documentation; or (ii) the user's reasonable expectations.
(1.7) "Escrow Agreement" means the agreement among Licensor, [OMITTED], and
-----------------
the Escrow Agent, which is attached hereto as Exhibit A.
(1.8) "License Fee" means the license fee for the Software as specified in
------------
Exhibit B.
(1.9) "Maintenance Fee" means the maintenance fee for the Software, as
----------------
specified Exhibit B, for the ongoing provision of Maintenance Services
after the expiration of the Warranty Period for such Software.
(1.10) "Maintenance Services" means the maintenance and support services for
---------------------
each Software, as described in Exhibit C.
(1.11) "Object Code" means the machine-executable code form of the Software.
------------
(1.12) "Representatives" means Licensor's officers, directors, employees,
---------------
agents and subcontractors (and their employees).
(1.13) "Software" means the computer program licensed hereunder, including
--------
the Object Code and Source Code, to [OMITTED], as described in Exhibit B
hereto, and all Upgrades, Customizations, Documentation, Work-Arounds,
error-corrections, patches and bug fixes.
(1.14) "Source Code" means the human readable form of code for the Software
------------
which (i) will be narrated fully with logic diagrams, flow charts and any
other materials sufficient to enable a reasonably skilled programmer to
readily interpret, build, modify, load, use, support and maintain the code
and to perform or caused to be performed such actions as are licensed
hereunder, and (ii) can readily be compiled by a computer or assembler for
execution.
(1.15) "System" means any of [OMITTED], its Affiliates' or, with respect to
------
those third parties permitted to use the Software pursuant to Section (2.1)
("Grant of License"), any such third party's, software, firmware, hardware,
computer systems and devices, and networks, whether owned, leased or rented
by [OMITTED], any of its Affiliates or, as applicable, any such third
party, or otherwise provided for the benefit, or under the control, of any
of the foregoing.
2. LICENSE
-------
(2.1) Grant of License. Licensor hereby grants the [OMITTED] a
------------------
non-transferable (except as set forth in Section (13.6) ("Assignment")),
non-exclusive, paid-up, perpetual, irrevocable, worldwide license to (i)
use, and to permit its third-party service providers to use on behalf of
[OMITTED] and or its Affiliates, the Software, including the Deposit
Materials and Documentation for any business purpose of [OMITTED], (ii)
make as many copies of the Software and the Documentation as [OMITTED]
reasonably deems necessary, including, but not limited to, backup and
archival copies,
(iii) modify the Software for [OMITTED] own purposes and use in accordance
with the provisions of this Agreement, through the services of [OMITTED]
employees or independent contractors, and (iv) merge, integrate, or combine
the Software with, and use the Software in conjunction with, other
software, hardware, programs, routines, and/or subroutines developed or
acquired by [OMITTED]. Further, as specified in Exhibit B, the Software is
licensed for use by other third parties as set forth in such Exhibit. Any
use by any third party as permitted in this Section (2.1) or Exhibit B will
be subject to any applicable terms and conditions contained in this
Agreement.
(2.2) Third-Party Software. A list of all third-party software included
---------------------
within, or required to operate, the Software is described in Exhibit B.
Licensor hereby grants to [OMITTED] the license rights necessary for
[OMITTED] to use all such third-party software in accordance with the terms
of this Agreement.
3. DELIVERABLES AND INSTALLATION
-----------------------------
(3.1) Deliverables. Licensor will deliver to [OMITTED] promptly after the
------------
Effective Date hereof, such Software together with two (2) copies of the
relevant Documentation in printed form and one (1) copy in a reproducible
electronic form reasonably acceptable to [OMITTED]. Upon [OMITTED] request,
Licensor will provide [OMITTED] with additional reproducible electronic
copies of the then-current Documentation and other materials free of charge
and will provide [OMITTED] with additional printed copies of such materials
at Licensor's then-current published rates for such copies.
(3.2) Installation. Installation of the Software is the responsibility of
------------
Licensor and will be completed by the Implementation Date set forth in
Exhibit B at no cost to [OMITTED].
4. NON-DISCLOSURE
--------------
(4.1) Confidential Information. "Confidential Information" includes (i) all
------------------------
information related to the business of [OMITTED] and any of its Affiliates,
clients and other third parties, to which Licensor has access, whether in
oral, written, graphic or machine-readable form, in the course of or in
connection with this Agreement; (ii) all notes, analyses and studies
prepared by Licensor or any of its Representatives, during the term of this
Agreement or anytime thereafter, incorporating any of the information
described in this Article 4, and (iii) the terms and conditions of this
Agreement.
(4.2) Restrictions. Licensor will keep the Confidential Information
------------
confidential. Licensor may disclose the Confidential Information to its
Representatives who have a need to know such Confidential Information
solely in connection with this Agreement. Licensor will cause such
Representatives to comply with this Agreement and will assume full
responsibility for any breach of this Agreement by any such
Representatives. Licensor will not transfer or disclose any Confidential
Information to any third party without [OMITTED] prior written permission
and without such third party having a contractual obligation (consistent
with this Article 4 ("Non-Disclosure")) to keep such Confidential
Information confidential. Licensor will not use any Confidential
Information for any purpose other than to provide the Software and any
related services to [OMITTED] under this Agreement.
(4.3) Exclusions. Licensor will not be prohibited from using information
----------
that: (i) is obtained by Licensor from the public domain without breach of
this Agreement and independently of Licensor's knowledge of any
Confidential Information; (ii) was lawfully and demonstrably in the
possession of Licensor prior to its receipt from [OMITTED]; (iii) is
independently developed by Licensor without use of or reference to
[OMITTED] Confidential Information; or (iv) becomes known by Licensor from
a third party independently of Licensor's knowledge of the Confidential
Information and is not subject to an obligation of confidentiality.
(4.7) Disposition of Confidential Information on Termination or Expiration.
---------------------------------------------------------------------
Upon termination or expiration of this Agreement or upon [OMITTED] written
request, Licensor will return to [OMITTED] all copies of Confidential
Information already in Licensor's possession or within its control.
Alternatively, with [OMITTED] prior written consent, Licensor may destroy
such Confidential Information, in which case an officer of Licensor will
certify in writing to [OMITTED] that all such Confidential Information has
been so destroyed.
11
5. OWNERSHIP
---------
Subject to Section (13.1) ("Escrow Obligations"), Licensor does not convey any
proprietary interest in or to the Software other than the license rights set
forth in this Agreement.
6. LICENSE FEES AND OTHER PAYMENTS
-------------------------------
(6.1) License Fees. No License Fees or Maintenance Fees will be due or
-------------
owed, with respect to the Software unless and until: (i) [OMITTED] accepts
the Software under Article 7 ("Acceptance Testing"); (ii) Licensor submits
to [OMITTED] evidence that it has delivered the Deposit Materials as
required under Section (13.1) ("Escrow Obligations"); and (iii) [OMITTED]
receives an invoice under Section (6.5) ("Invoices") for the relevant
License Fees or Maintenance Fees.
(6.2) Maintenance Fees. If [OMITTED] purchases Maintenance Services
-----------------
pursuant to Article 9, [OMITTED] will pay the relevant Maintenance Fee,
which Maintenance Fee is payable quarterly. Licensor may invoice for
Maintenance Services up to ninety (90) days in advance and [OMITTED] will
pay such invoices under Section (6.5).
(6.3) Taxes. Unless specifically agreed: (i) Licensor will be solely
-----
responsible for and [OMITTED] will not owe any applicable sales or use tax;
and (ii) all License Fees and Maintenance Fees stated in Exhibit B are
deemed inclusive of all forms and types of taxes in all jurisdictions. In
no event will [OMITTED] owe any taxes attributable to Licensor's income.
(6.4) Expenses. Licensor is solely responsible for any expenses incurred by
--------
it or at its direction in connection with the Software.
(6.5) Invoices. Licensor will provide [OMITTED] with an itemized invoice
--------
for all License Fees and Maintenance Fees that become due hereunder. Each
valid and undisputed invoice will be due and payable within sixty (60) days
after [OMITTED] receipt of such invoice.
(6.6) Most Favored Terms. Licensor represents and warrants that the terms
--------------------
and conditions (including the pricing terms) of this Agreement are and will
be comparable to or better than the terms and conditions offered by
Licensor to any of its commercial customers of equal or lesser size for
comparable software programs, deliverables or services. An officer of
Licensor will certify in writing Licensor's compliance with this Section
(6.6) within thirty (30) days of each anniversary of the Effective Date.
7. ACCEPTANCE TESTING
(7.1) Acceptance Testing. [OMITTED] is entitled to perform Acceptance
-------------------
Testing of the Software. The term "Acceptance Testing" means testing
performed by [OMITTED] to determine whether the Software complies with: (i)
the Documentation; and (ii) [OMITTED] reasonable expectations. If [OMITTED]
reasonably determines that such Software complies with the foregoing or
otherwise decides in its sole discretion to accept the Software, [OMITTED]
will notify Licensor in writing of its acceptance of the Software
("Acceptance"). [OMITTED] will use reasonable commercial efforts to notify
Licensor on or before any acceptance date set forth in Exhibit B
("Acceptance Date"). Payment by [OMITTED] of any License Fees, Maintenance
Fees or other consideration to Licensor or use of the Software by [OMITTED]
prior to Acceptance will not constitute [OMITTED] Acceptance of such
Software. Further, Acceptance of the Software will be revocable by
[OMITTED] upon failure of Acceptance Testing for the Software or later
discovery of material defects, deficiencies or nonconformity in the
accepted Software which were not reasonably discoverable by [OMITTED] prior
to such Acceptance.
(7.2) Failure of Acceptance Testing. If [OMITTED] notifies Licensor that
--------------------------------
the Software or any portion thereof fails to pass Acceptance Testing,
Licensor will correct all deficiencies not later than ten (10) calendar
days after receipt of [OMITTED] notice of such failure. Within thirty (30)
calendar days after such corrections have been made, [OMITTED] will retest
the Software. If the Software still fails Acceptance Testing, [OMITTED]
may, in its sole discretion: (i) grant Licensor additional time to correct
the outstanding deficiencies; or (ii) without prejudice to any of [OMITTED]
other rights and remedies under this Agreement or at law or in equity,
terminate this Agreement, in which event [OMITTED] promptly will return or
destroy all copies of the Software and Licensor will refund
12
promptly any License Fees, Maintenance Fees or other consideration paid to
Licensor thereunder.
8. REPRESENTATIONS, WARRANTIES, COVENANTS AND LIMITATION OF LIABILITY
------------------------------------------------------------------------
(8.1) Noninfringement. Licensor represents, warrants and covenants that:
---------------
(i) it has and will have all rights, titles, licenses, intellectual
property, permissions and approvals necessary in connection with its
performance under this Agreement and to grant [OMITTED] the rights granted
hereunder; (ii) neither the Software nor its use as contemplated under this
Agreement, do or will infringe, violate, trespass or in any manner
contravene or breach any patent, copyright, trademark, license or other
property or proprietary right or constitute the unauthorized use or
misappropriation of any trade secret of any third party; and (iii) the
Software, and its use as contemplated hereunder, complies and will comply
with all applicable laws.
(8.2) Maintenance Services. Licensor represents, warrants and covenants
---------------------
that: (i) all Maintenance Services and other services provided in
connection with this Agreement are and will be performed to the best of
Licensor's ability and in an effective, timely, professional and
workmanlike manner; (ii) Licensor personnel performing any services
hereunder will be appropriately trained and have a level of skill
commensurate with the requirements of this Agreement, and Licensor will
promptly replace any person who is performing services under this Agreement
upon [OMITTED] reasonable request; (iii) Licensor has no present plan or
intent to discontinue the availability of Maintenance Services (including
the provision of Upgrades) for the Software and will give [OMITTED] prompt
written notice of any such future plan or intent; and (iv) any and all
Upgrades shall at all times be compatible with the Software, any and all
hardware provided by Licensor, and any and all Customizations to the
Software created by Licensor hereunder.
(8.3) Provided Resources. Licensor represents, warrants, and covenants that
-------------------
(i) all of the services, Software, systems, hardware, equipment, and other
resources and materials that are provided by Licensor to [OMITTED],
otherwise utilized by Licensor, or approved by Licensor for utilization by
[OMITTED], shall be fully and successfully integrated and interfaced with
and shall be compatible with, all software, services, systems, items, and
other resources that are owned by or leased or licensed to [OMITTED]
(including, but not limited to, any and all hardware provided by Licensor
to {OMITTED]), or that are provided to {OMITTED] by third-party service
provider, and (ii) none of the Software, hardware, or other items provided
to [OMITTED] by Licensor shall be adversely affected by, or shall adversely
affect, those of any such third-party providers or [OMITTED] Affiliates,
whether as to functionality, speed, service levels, interconnectivity,
reliability, availability, performance, response times, or otherwise.
(8.4) Viruses. Licensor represents, warrants and covenants that the
-------
Software does not and will not contain any computer code designed to
disrupt, disable, harm, or otherwise impede in any manner, including
aesthetical disruptions or distortions, the operation of the Software or
any System (referred to as "viruses" or "worms").
(8.5) Other Code. Licensor represents, warrants and covenants that the
-----------
Software does not and will not contain any computer code that: (i) would
disable the Software or any System or impair in any way their operation
based on the elapsing of a period of time, the exceeding of an authorized
number of copies, or the advancement to a particular date or other numeral
(referred to as "time bombs", "time locks", or "drop dead" devices); or
(ii) would permit Licensor or any third party to access the Software or any
System (referred to as "traps", "access codes" or "trap door" devices).
(8.6) Date-related Functions. Licensor represents, warrants and covenants
-----------------------
that the Software will operate in a manner which is consistent with their
intended use and which prevents ambiguous or erroneous output, including
with respect to all date-related data and functions.
(8.7) Defects; Errors. Licensor represents, warrants and covenants that (i)
---------------
the Software will properly operate without a defect or an Error, and (ii)
the Software will properly scale to [OMITTED] technical environment and in
accordance with [OMITTED] reasonable requirements. Without limiting the
foregoing, Licensor represents, warrants and covenants that each Software
will operate properly in conjunction with [OMITTED] current operating
environment and in conjunction with any reasonable, standard upgrades to
such operating
13
environment. Upon Acceptance and thereafter for the [ONE HUNDRED EIGHTY
(180)] day period following such Acceptance (the "Warranty Period"), and
thereafter during periods for which [OMITTED] has purchased Maintenance
Services, if [OMITTED] reports any non-compliance with this Section (8.7),
Licensor will correct such non-compliance, at no additional cost to
[OMITTED], in accordance with Exhibit C.
(8.8) Documentation. Licensor represents, warrants and covenants that the
-------------
Documentation: (i) does and will accurately and completely describe the
Software; (ii) is and will be complete, free of errors and sufficiently
detailed to allow [OMITTED] personnel to operate and use such Software; and
(iii) will be updated as and when any Upgrade is provided for such Software
and such updated Documentation will be delivered by Licensor to [OMITTED]
promptly upon any such update pursuant to Section (3.1) ("Deliverables").
(8.9) Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER
----------
PARTY MAKES ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
(8.10) Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
------------------------
THIS AGREEMENT, IN NO EVENT WILL LICENSOR OR [OMITTED] OR ITS AFFILIATES BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE
DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) EVEN IF IT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING,
NO LIMITATION OR EXCLUSION OF LICENSOR'S LIABILITY WILL APPLY WITH RESPECT
TO ANY CLAIMS ARISING OUT OF OR RELATING TO ARTICLES 4 ("NON-DISCLOSURE")
AND ARTICLE 10 ("INTELLECTUAL PROPERTY INDEMNIFICATION") OF THIS AGREEMENT,
OR ITS WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, OR ANY CLAIMS FOR PERSONAL
INJURY OR PROPERTY DAMAGE (INCLUDING WITHOUT LIMITATION ALL COSTS
ASSOCIATED WITH THE RECOVERY OR REPLACEMENT OF LOST OR DAMAGED DATA).
9. SERVICES
--------
(9.1) Maintenance Services. During the term of this Agreement, Licensor
---------------------
provides [OMITTED] with an open offer to purchase Maintenance Services, in
accordance with the terms set forth in Section (6.1) ("Maintenance Fees"),
for the Software. Any payment for Maintenance Services will commence after
the expiration of the relevant Warranty Period. Maintenance Services for
the Software will automatically renew for one (1) year periods, or such
other period as mutually agreed upon in writing by the parties. Licensor
will provide [OMITTED] with written notice of each such automatic renewal
at least ninety (90) days prior to the end of the then-current Maintenance
Services term and [OMITTED] may elect not to renew such Maintenance
Services within thirty (30) days of such written notice or, if Licensor
fails to provide written notice, at any time thereafter. Without limiting
the foregoing, [OMITTED] may terminate the relevant Maintenance Services at
the end of any quarter during the relevant Maintenance Services term upon
thirty (30) days' prior written notice to Licensor. The Maintenance
Services to be provided by Licensor to [OMITTED] are set forth in Exhibit
C.
(9.2) Customization Services. Upon receipt of a written request from
-----------------------
[OMITTED], Licensor shall promptly perform for [OMITTED] any and all
services requested by [OMITTED] with respect to the customization,
integration, implementation, or modification of the Software, which
services Licensor shall perform on a time-and-materials basis at the rate
of [$150.00] per hour. Licensor shall invoice [OMITTED] for any and all
-------
such services in accordance with the terms of Section (6.5) hereof.
[OMITTED] shall not be responsible for, and shall have no liability for,
services performed by Licensor without [OMITTED] written approval.
10. INTELLECTUAL PROPERTY INDEMNIFICATION
-------------------------------------
(10.1) Indemnification by Licensor. Licensor, at its expense, will
-----------------------------
indemnify, defend and hold harmless [OMITTED] and its Affiliates and any of
their officers, directors, employees, agents, consultants, other
representatives and any third
14
parties permitted to use the Software pursuant to Section (2.1) ("Grant of
License") (collectively, the "Indemnified Parties") from all liabilities,
costs, losses, damages and expenses (including reasonable attorneys' and
experts' fees and expenses as well as interparty damages caused by Licensor
or third parties) and will reimburse such fees and expenses as they are
incurred, including in connection with any claim or action threatened or
brought against the Indemnified Parties, arising out of or relating to any
claim that the Software or any portion or use thereof, any related
Maintenance Services, or any other services performed by Licensor
hereunder: (i) constitutes an infringement, violation, trespass,
contravention or breach of any patent, copyright, trademark, license or
other property or proprietary right of any third party, or constitutes the
unauthorized use or misappropriation of any trade secret of any third
party; or (ii) is not in compliance with any applicable law. [OMITTED] will
promptly notify Licensor of any such claim or action and will reasonably
cooperate with Licensor in the defense of such claim or action, at
Licensor's expense.
(10.2) [OMITTED] Right to Participate. Licensor will have the right to
---------------------------------
conduct the defense of any such claim or action and all negotiations for
its settlement or compromise except that [OMITTED] may in its sole
discretion participate in the defense of any such claim or action at
[OMITTED] expense. Without limiting the foregoing, Licensor may not,
without [OMITTED] prior written consent, settle, compromise or consent to
the entry of any judgment in any such commenced or threatened claim or
action, unless such settlement, compromise or consent: (i) includes an
unconditional release of the relevant Indemnified Parties from all
liability arising out of such commenced or threatened claim or action; and
(ii) is solely monetary in nature and does not include a statement as to,
or an admission of fault, culpability or failure to act by or on behalf of,
any Indemnified Party or otherwise adversely affect any Indemnified Party.
If Licensor fails to appoint an attorney within ten (10) calendar days
after [OMITTED] has notified Licensor of any such claim or action, or after
Licensor becomes aware of such claim or action, whichever is earlier,
[OMITTED] will have the right to select and appoint an alternative attorney
and the reasonable cost and expense thereof will be paid by Licensor.
(10.3) Election of Remedy. If the Software or related Maintenance Service or
------------------
other service, or any portion thereof, becomes, or in Licensor's or
[OMITTED] reasonable opinion is likely to become, the subject of any such
claim or action, then [OMITTED] may require Licensor to either: (i) procure
for [OMITTED] the right to continue using the Software or such service, or
such portion thereof, as contemplated hereunder; (ii) modify the Software
or such service, or such portion thereof, to render same non-infringing
(provided such modification does not adversely affect the use of such
Software or such service, or such portion thereof, as reasonably determined
by [OMITTED]); or (iii) replace same with an equally suitable, functionally
equivalent, compatible, non-infringing software program or such service, as
reasonably determined by [OMITTED]. If none of the foregoing is possible
and if such Software or service, or such portion thereof, is found to
infringe by a court, Licensor or [OMITTED] will have the right to terminate
the Agreement with respect to such Software or service and Licensor will
refund to [OMITTED] all amounts paid by [OMITTED] for such Software or
service. Any termination of the Agreement by [OMITTED] under this Section
(10.3) will be without prejudice to any other rights and remedies which
[OMITTED] may have under this Agreement or at law or in equity.
11. TERM
----
(11.1) Term. This Agreement is effective as of the Effective Date and will
----
continue until terminated in accordance with Article 13.
12. TERMINATION
-----------
(12.1) Termination for Material Breach. If a party materially breaches this
--------------------------------
Agreement (the "Defaulting Party"), and such breach is incapable of cure,
or with respect to such breaches capable of cure, such Defaulting Party
does not cure such breach within twenty (20) days after written notice of
material breach, the non-defaulting party may terminate the Agreement upon
written notice to the Defaulting Party. Termination of this Agreement will
be without prejudice to any other rights and remedies that the
non-defaulting party may have under this Agreement or at law or in equity.
15
(12.2) Effect of Termination. Any termination of this Agreement will not
-----------------------
terminate the license and, in addition to all of [OMITTED] other rights and
remedies under this Agreement or at law or in equity [OMITTED] will be
entitled to retain and use all copies of the Software in [OMITTED]
possession or control.
(12.3) Bankruptcy Proceeding; Escrow. Upon termination by [OMITTED] of this
------------------------------
Agreement pursuant to Section (12.1) ("Termination for Material Breach"),
or if Licensor: (i) becomes insolvent or generally fails to pay, or admits
in writing its inability to pay, its debts as they become due; (ii) applies
for or consents to the appointment of a trustee, receiver or other
custodian for Licensor, or makes a general assignment for the benefit of
its creditors; (iii) commences any bankruptcy, reorganization, debt
arrangement, or other case or proceeding under any bankruptcy or insolvency
law, or any dissolution or liquidation proceedings (each, a "Bankruptcy
Proceeding"); or (iv) has a Bankruptcy Proceeding commenced against it and
such Bankruptcy Proceeding is not dismissed within thirty (30) days, then
[OMITTED] will be entitled to receive access to the Deposit Materials in
accordance with the procedures set forth in the Escrow Agreement. The
Escrow Agreement is supplementary to this Agreement pursuant to 11 U.S.C.
365(n), as the same may be amended or supplemented from time to time.
13. GENERAL
(13.1) Escrow Obligations. In accordance with the Escrow Agreement, Licensor
------------------
will deposit with the Escrow Agent the relevant Deposit Materials upon
Acceptance of each Software. Licensor will also update the Deposit
Materials with the Escrow Agent as required pursuant to the Escrow
Agreement, which updates will include updated Deposit Materials for all
Upgrades provided hereunder. Upon [OMITTED] request, but no more than once
per year unless Licensor is not in compliance with its escrow obligations,
Licensor will certify in writing its compliance with this Section (13.1)
and with the Escrow Agreement, which certification will be signed by an
officer of Licensor. Each of the Deposit Materials will be released to
[OMITTED] as set forth in this Agreement in accordance with the procedures
set forth in the Escrow Agreement upon the occurrence of any of the
following events: (i) Licensor fails to provide any services to be provided
under this Agreement for a period that exceeds three (3) days, including,
but not limited to, with respect to the Software or any hardware provided
by Licensor to [OMITTED]; or (ii) any of the conditions described in
Section 0 hereof are met. [OMITTED] will solely own all right, title and
interest in and to and have the exclusive right to use any modifications to
the Software, including the Source Code and any other Deposit Materials
made by or for [OMITTED] after the release of the Deposit Materials. For
purposes of this Agreement, "Escrow Agent" means the independent third
party that has been appointed pursuant to the Escrow Agreement to hold a
copy of the Deposit Materials in accordance with the terms and conditions
of the Escrow Agreement.
(13.2) License of Intellectual Property; 365(n). The Software and the
--------------------------------------------
Deposit Materials are "intellectual property" as defined in 11 U.S.C.
101(35A) which have been licensed hereunder in a contemporaneous exchange
for value and this Agreement will be governed by 11 U.S.C. 365(n), as the
same may be amended or supplemented from time to time, if Licensor files
for bankruptcy.
(13.3) UCITA Not Applicable. This Agreement and the transactions
----------------------
contemplated herein is not and will never be subject to the Uniform
Computer Information Transactions Act (prepared by the National Conference
of Commissioners on Uniform State Laws) as currently enacted by any
jurisdiction or as may be codified or amended from time to time by any
jurisdiction.
(13.4) Insurance. Licensor will, during the term of this Agreement, at its
---------
sole cost and expense, obtain and maintain in full force and effect,
subject to [OMITTED] reasonable approval, (i) Errors and Omissions
Insurance (including network security, cyber-attack and web content
liability) in an amount of at least Five Million Dollars ($5,000,000)
naming [OMITTED] and [OMITTED] Affiliates as additional insureds and
covering them with respect to actions of Licensor's Representatives, and
(ii) insurance covering the infringement of a third party's intellectual
property in an amount of at least one million dollars ($1,000,000) and
naming [OMITTED] and [OMITTED] Affiliates as additional insureds (as their
interests may appear). Licensor will provide [OMITTED] with a copy of all
relevant certificates of insurance upon [OMITTED] request including those
evidencing
16
that [OMITTED] has been added as an additional insured.
(13.5) Security and Supervision. Licensor's personnel, when on [OMITTED]
--------------------------
premises or accessing [OMITTED] networks or providing maintenance services
hereunder, will comply with all of [OMITTED] security, supervision and
other standard procedures applicable to such personnel.
(13.6) Assignment. Neither party will assign, as a result of a change of
----------
control (which shall be deemed to be an assignment) or by operation of law
or otherwise, its rights or obligations under this Agreement without the
prior written consent of the other party and any attempt to do so without
such consent will be null and void. For purposes of this Section (13.6),
"change of control" will mean the direct or indirect change in the
ownership, operation or control of a party, whether resulting from merger,
acquisition (including an acquisition of substantially all of the assets of
such party), consolidation or otherwise.
(13.7) Former Affiliates. In the event that any Affiliate of [OMITTED] or
------------------
any portion of the business or operations thereof undergoes a change in
control (a "Former Affiliate") Licensor will continue to provide such
Former Affiliate the license and services described in this Agreement for a
period of twelve (12) months following such change in control, and after
such twelve (12) month period, Licensor will offer to provide such Former
Affiliate a license to use the Software and to provide to such Former
Affiliate all related services and all other rights and protections on the
same terms and conditions as provided to such Former Affiliate under this
Agreement prior to any such change in control. In the event that a Former
Affiliate receives a license from Licensor pursuant to this Section (13.7),
[OMITTED] will receive a reduction in its License Fees and Maintenance Fees
proportionate to its reduced usage of Software Products and Maintenance
Services.
(13.8) Notices. All notices given under this Agreement must be in writing,
-------
sent to the person and address designated in the this Agreement or to such
other addresses as Licensor or [OMITTED] may designate pursuant to this
Section (13.8), by certified mail (return receipt requested), overnight
courier or personal delivery. Notice will be deemed given upon receipt. A
copy (which will not constitute notice hereunder) of any notice given by
Licensor to [OMITTED] will likewise be sent to:
[OMITTED]
Attn:
---------------------------------------
[omitted]
----------------------------------------------
----------------------------------------------
Facsimile: [omitted]
Subject to Section (13.12) ("No Waiver by Conduct"), other notices may be given
by facsimile or email.
(13.9) Remedies. Each party acknowledges that a breach of certain of its
--------
obligations under this Agreement, other than any payment obligations
hereunder, may result in irreparable and continuing damage to the other
party for which monetary damages may not be sufficient, and agrees that the
other party will be entitled to seek, in addition to its other rights and
remedies hereunder or at law, injunctive or all other equitable relief, and
such further relief as may be proper from a court of competent
jurisdiction.
(13.10) Interpretation. The terms and conditions of this Agreement are the
--------------
result of negotiations between the parties. The parties intend that this
Agreement should not be construed in favor of or against any party by
reason of the extent to which any party or its professional advisors
participated in the preparation or drafting of the Agreement.
(13.11) Entire Agreement. This Agreement, as well as the Escrow Agreement,
-----------------
constitutes the complete agreement and understanding between the parties
with respect to the subject matter hereof, and supersedes all prior
agreements and understandings between the parties.
(13.12) No Waiver by Conduct. No waiver of any of the terms of this Agreement
--------------------
will be valid unless in writing and designated as such. Any forbearance or
delay on the part of either party in enforcing any of its rights under this
Agreement will not be construed as a waiver of such right to enforce same
for such occurrence or any other occurrence.
(13.13) Independent Contractor. Licensor acknowledges that it is acting as an
----------------------
independent contractor, that Licensor is solely responsible for its actions
or inactions, and that nothing in this Agreement will be construed to
create an agency or employment relationship between [OMITTED] and Licensor
or its Representatives. Licensor is not authorized to enter into contracts
or
17
agreements on behalf of [OMITTED] or to otherwise create obligations of
[OMITTED] to third parties. Neither Licensor nor any of its Representatives
are [OMITTED] employees for any purpose, including for: (i) federal, state
or local tax, employment, withholding or reporting purposes; or (ii)
eligibility or entitlement to any benefit under any of the [OMITTED]
employee benefit plans (including those that are subject to the Employee
Retirement Income Security Act of 1974, as amended), incentive,
compensation or other employee programs or policies.
(13.14) No Publicity. Licensor agrees not to disclose the identity of
-------------
[OMITTED] or its Affiliates or any of their directors, officers, managers,
employees, consultants or agents as a customer or prospective customer of
Licensor or the existence or nature of this Agreement.
(13.15) Severability. If any one or more of the provisions of this Agreement
------------
are for any reason held to be invalid, illegal or unenforceable by a court
of competent jurisdiction, the remaining provisions of this Agreement will
be unimpaired and will remain in full force and effect, and the invalid,
illegal or unenforceable provision will be replaced by a valid, legal and
enforceable provision that comes closest to the intent of the parties
underlying the invalid, illegal or unenforceable provision.
(13.16) Survival. Any provision of this Agreement which, by its nature, would
--------
survive termination or expiration of this Agreement will survive any such
termination or expiration of this Agreement, including Articles/Sections
(2.1) ("Grant of License"), 4 ("Non-Disclosure"), 5 ("Ownership"), (7.2)
("Failure of Acceptance Testing"), 8 ("Representations, Warranties,
Covenants and Limitation of Liability"), 10 ("Intellectual Property
Indemnification"), 12 ("Termination"), and 13 ("General").
(13.17) Governing Law and Choice of Forum. This Agreement will be governed
------------------------------------
by, and construed in accordance with, the internal laws of the State of
Illinois, without regard to its choice of laws principles. The parties
hereby irrevocably consent to the exclusive jurisdiction of, and venue in,
any federal or state court of competent jurisdiction located in the County
of ▇▇▇▇, Illinois for the purposes of adjudicating any matter arising from
or in connection with this Agreement.
(13.18) Counterparts; Method of Amendment. This Software License Agreement
------------------------------------
and any amendments thereto may be executed in counterparts and will not be
effective or enforceable unless and until it is executed with the
handwritten signature of an authorized representative of each of the
relevant entities. Without limiting the foregoing, none of the following
will amend or modify this Agreement: (i) terms and conditions which are
displayed or conveyed electronically or are associated with, or are
responded to by the operation of a mouse or other pointing device, typing
on a keyboard, "virtual" actions, an automated computer program, the
removal of shrinkwrap, the opening of a package, the loading or use of
software or other goods or services, or any other action other than such a
handwritten signature as described in the previous sentence; or (ii)
payment by [OMITTED] of any License Fees, Maintenance Fees or other
consideration to Licensor or use of or any other action with respect to the
Software or any services.
18
IN WITNESS WHEREOF, the parties have caused this Software License Agreement to
be executed by their duly authorized representatives.
LICENSOR: RAPIDTRON, INC.
----------------
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: CEO/PRESIDENT
Date: 08/14/03
[OMITTED]
By: /S/ OMITTED
---------------------------------------------
Name: OMITTED
Title: Senior Vice President [ILLEGIBLE]
Date: 08/20/03
19
EXHIBIT A
---------
ESCROW AGREEMENT
See Attached
Exhibit A, Page 1
EXHIBIT B
---------
This Exhibit is entered into as of the __ day of June, 2003, pursuant to, and
incorporates herein by reference the terms and conditions of, the Software
License Agreement, entered into as of the __ day of June, 2003 (the "Software
License Agreement"), by and between [OMITTED] ("[OMITTED") and
____________________ ("Licensor").
Licensor will provide and license the following Software to [OMITTED] and its
Affiliates under the terms and conditions of the Software License Agreement and
this Exhibit:
I. DESCRIPTION OF SOFTWARE AND INSTALLATION AND ACCEPTANCE DATES:
The software consists of two compiled Microsoft COM objects named
PiiAGC20.dll and PiiSrv.dll. The purpose of these objects is to allow
[OMITTED] proprietary application to interface with the Rapidtron's access
control gates.
Functional/Technical Requirements:
---------------------------------
- The Software shall at all times operate and properly function on a
Windows platform and in a Citrix environment. The Software should in
no way limit the number of concurrent users that can access a single
server.
- The Software shall at all times remain compatible and function
properly on a TCP/IP network configured with multiple subnets.
- The Software shall at all times remain compatible and function
properly with all versions of the Rapidtron hardware and firmware
installed at [OMITTED] locations.
Implementation Date (date by which installation must be complete):
-----------------------------------------------------------------
Implementation complete
Acceptance Date (date by which [OMITTED] may accept the Software):
-----------------------------------------------------------------
ACCEPTANCE COMPLETE EXCEPT FOR DEMONSTRATION OF ABILITY TO SCALE TO 400
PLUS CLUBS
Third-Party Software:
--------------------
II. TRAINING: COMPLETE
III. PAYMENTS:
Paid-up License Fees
--------------------
Quarterly Maintenance Fees
--------------------------
IV. SPECIAL CONDITIONS (IF ANY):
1. The Software may be used by the following third parties pursuant to
Section 2.2(ii) of the Software License: any and all franchisees,
subsidiaries, and joint ventures of [OMITTED], which, for the purposes of
this Agreement, shall be deemed "Affiliates" pursuant to the Agreement.
Exhibit B, Page 1
Exhibit 10.1
EXHIBIT C
---------
MAINTENANCE SERVICES AGREEMENT
Licensor will provide [OMITTED] with the following Maintenance Services with
respect to the Software:
1. 24 x 7 Support; Severity Levels. Licensor will provide support services on
--------------------------------
a 7 a.m. CST to 10 p.m. CST x 365 basis and will respond to service
requests and correct Errors or provide a Work-Around in accordance with the
severity level reasonably assigned by [OMITTED] as follows:
SEVERITY LEVEL RESPONSE TIME CORRECTION TIME
Severity 1 One (1) hour Four (4) hours
Severity 2 One (1) hour Eight (8) hours
Severity 3 Three (3) hours Seventy-two (72) hours
Severity 4 Twenty-four (24) hours Two (2) weeks
(a) A Severity 1 Error: (i) causes the Software to cease operating or
operating in any material respect; or (ii) is likely to directly or
indirectly delete, impair, damage or corrupt (collectively with (i),
"Damage") any System or [OMITTED] data. A Severity 1 Error will also
include any Error in the Software that poses directly or indirectly
imminent harm to any System or [OMITTED] data.
(b) A Severity 2 Error: (i) causes a significant function of the Software
to be impaired although it still operates; (ii) may cause Damage to
any System or [OMITTED] data; or (iii) may have a material adverse
impact on [OMITTED] business.
(c) A Severity 3 Error causes a minor function of the Software to be
impaired which adversely affects, or is likely to adversely affect,
[OMITTED] business.
(d) A Severity 4 Error causes a minor function to be impaired, but there
is no likely adverse effect on [OMITTED] business.
As used herein, a "Work-Around" means a temporary work-around, patch
or bypass supplied by Licensor in order to temporarily correct the
Error; provided, however, that: (a) the Software's functionality,
-------- -------
compatibility or use is not adversely affected; and (b) the
Work-Around is not unduly burdensome to [OMITTED]. Notwithstanding the
availability of a Work-Around, Licensor will continue to work to fix
the Error and, in any event, provide [OMITTED] with the applicable
permanent correction within: (i) ten (10) calendar days for a Severity
1 or 2 Error; or (ii) three (3) weeks for a Severity 3 or 4 Error.
2.2 (a) Notification of Errors; Response. [OMITTED] may notify Licensor of
-----------------------------------
any Errors, including the Severity Levels of such Errors, via Licensor's
help desk, which can be reached at [▇▇▇-▇▇▇-▇▇▇▇] on the days and during
the hours of [7 a.m. CST to 10 p.m. CST], and otherwise via beeper at
----------------------------
[N/A*]]. Licensor will respond to [OMITTED] by phone as soon as possible
and in any event within the relevant response time set forth in Section 1
of this Exhibit C. *If no one is at this number it will be automatically
transferred to an active number.
(b) Error Resolution. If [OMITTED] notifies Licensor of a Severity 1, 2
-----------------
or 3 Error, Licensor will assign a programmer to correct such Error within
the relevant response time for such Error. The programmer will use best
efforts to correct the Error in an expeditious manner and will inform
[OMITTED] of the programmer's progress, including the steps taken to
resolve the Error, the expected time for resolution of the Error and any
resolution of the Error.
(c) Error Escalation. If the Error has not been corrected, or a
-----------------
Work-Around has not been provided, within the relevant correction time
periods set forth in Section 1 of this Exhibit C, then Licensor will
escalate the Error immediately to Licensor's senior programmer who wrote
the Software or, if such programmer is not available, to one of Licensor's
other senior programmers (collectively, the "Senior Programmer"). The
Senior Programmer will use best efforts to correct the Error in an
expeditious manner and will inform [OMITTED] of the Senior Programmer's
progress, including the steps taken to resolve the Error, the expected time
for resolution of the Error and any resolution of the Error. Licensor will
provide the Senior Programmer with as much assistance as necessary to fix
the problem as soon as possible. If the Senior Programmer cannot correct
such Error within a reasonable time period as determined by [OMITTED] in
its sole discretion, Licensor will, within twenty-four (24) hours of
[OMITTED] request, provide on-site services at no additional cost to
[OMITTED]. Further, with [OMITTED] prior consent,
Licensor may log-in to [OMITTED] computer system and access the Software
solely for the purposes of Error diagnosis, correction and installation.
3. Material Breach upon Failure of Error Correction. It will be deemed a
-----------------------------------------------------
material breach of the Agreement if Licensor will fail: (a) with respect to
Severity 1, 2 or 3 Errors, to comply with the time periods set forth in
Section 1 of this Exhibit C two (2) times during any ninety (90) day
period; or (b) to correct, or provide a Work-Around for, a Severity 1 or 2
Error within seventy-two (72) hours after [OMITTED] original notice
thereof. Upon the occurrence of such event, in addition to (and not in lieu
of) any other rights and remedies available to [OMITTED] under this
Agreement or at law or in equity, [OMITTED] may, in its sole discretion:
(i) if such material breach occurs during the relevant Warranty Period,
notwithstanding the twenty (20) day time period in Section (12.1) of
this Agreement, immediately terminate the Agreement in which case
Licensor will promptly refund all amounts paid by [OMITTED] to
Licensor thereunder; or
(ii) if such material breach occurs during or after the expiration of the
relevant Warranty Period, notwithstanding the twenty (20) day time
period set forth in Section (12.1) of this Agreement, immediately
terminate this Agreement in accordance with Article 13 ("Termination")
of this Agreement.
4. Maintenance for Upgrades. Licensor will provide [OMITTED] with prior
--------------------------
written notice (by as much time as practicable but in no event less than
(10) days) of the release by Licensor of any revision, upgrade,
error-correction, change, enhancement, amendment or modification to the
Software, including modifications necessary to allow the Software to work
in connection with revisions to the relevant operating system(s) (each, an
"Upgrade", which term also includes a Work-Around), and will provide such
Upgrade to [OMITTED] with detailed instructions concerning installation at
no additional cost to [OMITTED]. If [OMITTED] requests Licensor to
demonstrate such Upgrade, Licensor will promptly demonstrate such Upgrade
to {OMITTED] at no additional cost. If [OMITTED] requests Licensor to
install such Upgrade, Licensor will promptly install such Upgrade at no
additional cost. Notwithstanding anything to the contrary contained herein,
[OMITTED] will not be required to install or have installed any Upgrade
that adversely affects [OMITTED] use of the Software or any System or
imposes any undue burden on [OMITTED]. In any event, Licensor will continue
to provide the services described in this Exhibit C in connection with at
least the version that is then-currently installed on the relevant
System(s) and the two most recent prior versions of the Software. If any
Upgrade is installed, such Upgrade will thereupon be deemed to be part of
the Software.