Exhibit 10(p)
Source Code License Agreement
This Source Code License Agreement ("this Agreement") entered into by INFO
Enterprises, Inc., having its executive offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("INFO"), and TRACER Design, Inc. ("Licensee") and
effective as of the date of the latest signature hereto ("Effective Date").
WHEREAS, INFO agrees to license to Licensee and Licensee agrees to license from
INFO the Source Code identified on the Schedule of Programs.
NOW THEREFORE, the parties mutually agree as follows:
1. Definitions
"Software" means the computer program or programs in source code or
binary code form listed in the Schedule of Programs.
2. Grant of License
INFO grants to Licensee a non-exclusive and transferable license, with
the right to sublicense, the Software listed on the Schedule of Programs.
3. Payment
A. Fees. The license fee applicable to the Software is a one time
fee of $25,000.
B. Payment of License Fee. The License fee of $25,000 is due upon
execution and delivery hereof.
C. Taxes. Licensee agrees to pay all license fees, assessments,
sales, use, personal property, excise and other taxes,
together with any penalties or interest thereon on either INFO
or Licensee upon or with respect to the Software while the
Software are subject to this License (excluding those taxes on
the net income of INFO).
4. Software Remains INFO's Property
A. Ownership. Title to the Software, all copies thereof, and all
rights therein, including all rights, title, and interest in
patents, copyrights, trade secrets and any other intellectual
property, shall remain vested in INFO. INFO shall acquire no
rights or title of any kind to any modifications of the
Software made by or for Licensee or a Sub-Licensee, which
shall own all rights and title therein. INFO shall have no
obligation to provide to Licensee any updates or modifications
made by or for it.
B. Valuable Proprietary Information. Licensee acknowledges INFO's
representation that the Software contains valuable proprietary
information and that unauthorized dissemination of the
Software could cause irreparable harm. Therefore, Licensee and
INFO agree to hold the Software in confidence and will take
any appropriate action by instruction, agreement or
Source Code License Agreement
02/23/96
Page 2
otherwise, with any person permitted access to the Software so
as to enable Licensee or INFO, as applicable, to hold the
Software in confidence using the same degree of care as
Licensee or INFO, as applicable, uses for the protection of
its own proprietary software, but in no event less than
reasonable care, and to otherwise satisfy its obligations
under this Agreement.
C. Proprietary Markings. Licensee agrees not to alter, remove, or
destroy, any patent, copyright, trademark, trade secret or
proprietary notices, legends, or markings placed upon or
contained in the Software.
5. Right to Copy
Licensee shall have the unrestricted right to modify and copy the
Software, subject to Section 4 ( C ) above.
6. Trademarks and Service Marks
7. Term and Termination
A. Term. The term of this Agreement shall be perpetual unless
terminated under the provisions in section 7B hereinafter.
B. Termination. This Agreement may be terminated by Licensee upon
thirty (30) days prior written notice. INFO may terminate this
Agreement if Licensee is in default of any of the terms and
conditions of this Agreement and fails to cure such default
within thirty (30) days prior written notice, or in the event
Licensee files or has filed against any bankruptcy,
insolvency, or receivership proceeding.
C. Termination Certificate. In the event a termination of this
Agreement:
a) Licensee shall promptly return to INFO or certify to
the destruction of the original and all copies, in
whole or in part, in any form, of the Software;
b) INFO and Licensee shall promptly return to each other
or certify to the destruction of confidential and
proprietary information of the other which is in
tangible form and to which neither has a right of
retention; and
c) Any sublicenses granted by Licensee prior to such
termination shall nevertheless remain in full force
and effect.
8. Maintenance
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INFO shall not be responsible for maintenance or field service of the
Software or derivative versions under this Agreement.
9. Warranty and Disclaimer
A. INFO DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE
SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS OR THAT THE
OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
B. NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY,
INCLUDING IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR
PARTICULAR PURPOSE, ARE GRANTED TO LICENSEE.
10. Patent and Copyright Indemnity
A. INFO agrees that it will defend any suit or proceeding brought
against Licensee and will pay all damages and costs finally
awarded in any such suit or proceeding, insofar as such suit
or proceeding is based on a claim that the Software infringes
any patent, copyright or trade secret of the United States,
provided that INFO is notified promptly by Licensee in writing
of any such claim and at its expense is given full and
complete authority (including settlement authority, provided
that INFO shall have no authority to obligate Licensee in any
way), information and assistance by Licensee for such defense.
B. In the event that the use of the Software is enjoined as a
result of such suit, or, if in the opinion of INFO, the
Software is likely to become the subject of a claim of
infringement of a patent, copyright, or trade secret of the
United States, INFO at its own election and expense shall (i)
procure for Licensee the right to continue to use the
Software; (ii) modify or replace the Software so that it
becomes non-infringing while giving equivalent performance; or
at INFO's sole election, (iii) receive back the Software and
refund to Licensee the license fee paid by Licensee.
C. INFO shall not indemnify Licensee if any infringement or claim
is based upon (i) Software developed at Licensee's request and
in accordance with Licensee's specifications; (u)
modifications by Licensee or Sub-Licensee of the Software if
the Software in nonmodified form is noninfringing; (iii) the
interconnection or use of the Software in combination with
equipment or software if the Software standing alone would not
be infringing.
11. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS LICENSE
AGREEMENT, INCLUDING INFRINGEMENT CLAIMS, FOR THE EXISTENCE,
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02/23/96
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FURNISHING, FUNCTIONS, OR LICENSEE'S USE OF THE SOFTWARE EVEN IF THE
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Miscellaneous
A. Force Majeure. A party shall not be liable for non-performance
of this Agreement, nor construed to be in default hereunder,
to the extent to which the non-performance or default is
caused by events or conditions beyond that party's control,
and provided that the party gives prompt notice of the event
or condition and makes all reasonable efforts to perform.
B. Assignment. This Agreement and the rights granted hereunder
may be assigned by either party without the prior written
consent of the other party.
C. Risk of Loss. If the Software is lost, damaged, or destroyed
by any cause during shipment from INFO to Licensee, INFO will
replace the Software and its storage media at no additional
charge or cost to the Licensee.
D. Export Restrictions. Licensee agrees that it will not, in any
form, export, reexport, resell, ship or divert, or cause to be
exported, reexported, resold, shipped or diverted, directly or
indirectly, the Software to any country for which the United
States Government or any agency thereof at the time of export
or reexport requires an export license or other governmental
approval without first obtaining such license or approval.
E. Severability. If any part of this Agreement is found to be
invalid or unenforceable, this Agreement shall be construed
and interpreted without reference to such part.
F. Choice of Law. This Agreement shall be governed in accordance
with the laws of the State of Arizona.
G. Mediation. Excluding any Intellectual Property Claims, the
parties agree that claims and disputes will be submitted to
non-binding mediation in Phoenix, Arizona, within ten (10)
days after a written request for mediation prior to initiation
of any formal legal process. Cost of mediation will be shared
equally.
H. Waiver. No term or provision hereof shall be deemed waived and
no breach excused unless such waiver or consent shall be in
writing and signed by the party claimed to have waived or
consented.
I. Notice. Whenever notice is required to be given in writing
hereunder, notice shall be deemed given when received by
express mail to the addresses set forth below. The parties
shall promptly notify each other in writing of any changes in
address.
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TO INFO ENTERPRISES: TO LICENSEE:
INFO ENTERPRISES TRACER DESIGN, INC.
Attn: New Enterprises Attn: President
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
J. Headings. The headings used herein are intended solely for
ease of reference and are not intended to describe, construe,
or interpret this Agreement.
K. Relationship of the Parties. The relationship between the
parties to this Agreement is that of licensor and licensee.
This Agreement shall not be construed to create a relationship
of partners, brokers, employees, servants, or agents as
between the parties.
L. Confidentiality. If any information provided by one party is
considered confidential and proprietary, it shall require
execution of a separate Non-Disclosure Agreement.
13. Entire Agreement
This Agreement together with the Schedule of Programs, constitutes the
entire understanding of the parties hereto and supersedes any and all
prior or contemporaneous representations or agreements, whether written
or oral, between the parties, and cannot be changed or modified unless in
a writing signed by the parties hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the day and year of the last
signature below.
INFO ENTERPRISES, INC. LICENSEE
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Full Legal Name)
/s/ ▇. ▇. ▇▇▇▇ /s/
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(Authorized Signature) (Authorized Signature)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Typed Name) (Typed Name)
Chief Operating Officer President
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(Title) (Title)
February 23,1996 February 23,1996
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(Date) (Date)
Source Code License Agreement
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Page 6
SCHEDULE OF PROGRAMS FOR SOURCE CODE LICENSE AGREEMENT
This Schedule of Programs for licensing the Software listed below is made and
entered into by INFO Enterprises, Inc. and the Licensee named below. The terms
and conditions of the Source Code License Agreement are incorporated into and
made a part of this Schedule of Programs. INFO agrees to license to Licensee and
Licensee agrees to license from INFO the Software listed below.
LICENSEE: TRACER Design. Inc.
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(Full Legal Name)
ADDRESS: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ #▇▇▇
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PRODUCT DESCRIPTION LICENSE FEE
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1. Cyberhunt Intellectual Property Titles of Programs provided below: $25,000
club_clues. c chgpwd.create ▇▇▇▇▇▇▇.▇▇
clue_updates get_form_info.create newsform
makeguess2db.c list_form_results.create newspost
makeguessform . c answers_it. create next
creatdb.sql forms_dt.create page
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇ questions_dt.create page2
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇ user_info_dt.create pagerform2
MakePrizeDisplay user_login_it.create prev
nextgame_form access.sql pwd2db.c
register_form ▇▇▇▇▇▇▇▇▇▇.▇▇ register.c
showprize.c comment.sql showebrc.c
showwinners.c dump.tables submitebrc.c
clubregister.c ▇▇▇▇▇▇▇▇.▇▇ club_info.create
clubregister_form response.sql clues .create
cluepage response.sql.all prizes.create
clues.c ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇ user_clues.create
confirm.c ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇ activate_clue.create
found.c MakeNotice club_clues.create
▇▇▇▇▇▇.▇▇ ▇▇▇▇▇▇▇▇▇▇.▇▇ clubregistration.create
showclue.c chgpwd clue_solved.create
list_forms.sql comment_form clue_status.create
answers.create cyberhunt_header clues_for_user.create
forms.create cyberhunt_footer enter_clue.create
question_type.create form getguess.create
questions.create hpage prize_report.create
services.create imagemap.c submitguess.create
user_info.create locate oicgi.c
adduseranswer.create mailform oicgi.h
adduserinfo.create mailto.c
adduserlogin.create mdy
Source Code License Agreement
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Page 7
INFO ENTERPRISES, INC. LICENSEE
▇. ▇. ▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Authorized Signature) (Authorized Signature)
Gregorv ▇. ▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Typed Name) (Typed Name)
Chief Operating Officer President
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(Title) (Title)
February 23, 1996 February 23, 1996
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(Date) (Date)