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EXHIBIT 4.8
TECHNOLOGY AND PRODUCT LICENSE AGREEMENT
This Technology and Product License Agreement ("Agreement") is made effective
May 25, 2000 (the "Effective Date") by and among Jacada Ltd. ("Jacada"), located
at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Israel, and
Cortlandt Reade Technical Corporation, located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Licensor").
RECITALS
A. Licensor owns certain technology relating to cooperative processing
environments ("CPE").
B. Jacada wishes to license from the Licensor the CPE technology and
certain products incorporating the CPE technology in order to develop,
manufacture, and market products incorporating the CPE technology.
C. Licensor wishes to license the CPE technology and certain products
incorporating the CPE technology to Jacada subject to the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the covenants, promises and representations
set forth herein, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1.0 DEFINITIONS
1.1 "Confidential Information" means (a) information which if
disclosed (i) in tangible form, is clearly marked as confidential or
proprietary, or (ii) in intangible form (such as orally or visually), the
disclosing party identifies as confidential or proprietary at the time of
disclosure and provides a written summary of such information within thirty (30)
days of disclosure and (b) the Jacada Products.
1.2 "Closing" means the date upon which all of the conditions set
forth in Section 2.1 hereof are satisfied.
1.3 "CPE Product(s)" means those Product(s) described in
Attachment 1 and all modifications thereto.
1.4 "Derivative Work" means technology (including software
programs in source code and object code form) derived from the Licensed
Technology by or for Jacada pursuant to Section 4.0 below.
1.5 "Intellectual Property Rights" means worldwide common law and
statutory rights associated with (i) patents and patent applications; (ii) works
of authorship, including copyrights, copyright applications, copyright
registrations and "moral" rights; (iii) trade and industrial secrets and
confidential information and the protection thereof; (iv) other proprietary
rights relating to intangible intellectual property (specifically excluding
trademarks, tradenames and service marks); (v) analogous rights to those set
forth above; and (vi) divisions, continuations, renewals, reissuances and
extensions of the foregoing (as applicable) now existing or hereafter filed,
issued or acquired.
1.6 "Jacada Product(s)" means any product(s) made by or for Jacada
that incorporates a portion of the Licensed Technology, including the Derivative
Works, but does not include the Licensed Technology.
1.7 "Licensed Source Code" means the Source Code described in
Attachment 1 as the "Licensed Source Code".
1.8 "Licensed Technology" means the CPE Products in Source Code
form and all ideas, methods, concepts, know-how and technology related thereto,
and including the Licensed Source Code and including PAC
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Products described in Attachment 1 as the "Licensed Technology" including
Technical Documentation, User Documentation, error corrections and any test
suites provided to Jacada by Licensor hereunder.
1.9 "PAC" means platform adaptor component products which
incorporate the Licensed Technology as further described in Attachment 1.
1.10 "Product" means any software or hardware product owned by
Licensor which incorporates the CPE technology. In the case of software,
"Product" includes all computer programs, object code, Source Code, firmware,
listings, all platforms (such as UNIX, MVS, Windows NT, etc.), error
corrections, updates, upgrades, or the like, and documentation with respect to
such Product(s).
1.11 "Source Code" means program code in high-level computer
language readable by humans skilled in the language. "Source Code" includes
available related technical documentation and tools, including comments,
internal development tools and build environment.
1.12 "Technical Documentation" means implementation notes, training
materials and technical reference materials associated with Licensed Technology,
as further described in Attachment 1.
1.13 "User Documentation" means the manuals and other documents
which the Licensor provides with the Licensed Technology for use and reference
by end users.
2.0 CLOSING; CONDITIONS PRECEDENT.
2.1 Mutual Preconditions to Closing. Each party's obligations to
consummate and effect this Agreement and the transactions contemplated hereby
are subject to the fulfillment and satisfaction at or prior to the Closing of
each of the following conditions:
(a) Each party shall have obtained all corporate and
legal consents necessary to execute and deliver this Agreement and all related
documents and to consummate the transactions contemplated hereby;
(b) The representations and warranties of each party in
this Agreement shall be true and correct in all materials respects on and as of
the Closing as though representations and warranties were made on and as of the
Closing and each party shall have performed and complied in all material
respects with all covenants and obligations of this Agreement required to be
performed and complied with by the Closing.
2.2 Preconditions to Closing. The obligations of Jacada to
consummate and effect this Agreement and the transactions contemplated hereby
are subject to the fulfillment and satisfaction at or prior to the Closing of
each of the following conditions:
(a) Intellectual Property Agreements. Licensor shall have
produced any and all documentation or agreements which purport to transfer
Intellectual Property Rights in the Licensed Technology to Licensor, including
but not limited to, those listed on Attachment 2;
(b) Third Party Consents. Any and all required consents,
waivers, and approvals including those listed on Attachment 2 shall have been
obtained;
(c) Employment Arrangements. Two persons selected by
Jacada who will support the Licensed Technology shall have entered into
"at-will" employment arrangements reasonably satisfactory to Jacada and subject
to and in compliance with Jacada's standard Human Resources policies and
procedures;
(d) Disclaimers of Ownership. Licensor shall have
delivered to Jacada in a form acceptable to Jacada either (i) certificates from
each of Precise Connectivity Solutions Ltd., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and Precise Software
Solutions Ltd. (the "Third Parties") which either disclaim any ownership
interest in the Licensed
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Technology or consent to the terms and conditions of this Agreement or (ii)
evidence that the Third Parties have no ownership rights in the Licensed
Technology;
(e) Delivery by the Licensor. Licensor shall have
delivered the Licensed Technology pursuant to Section 3.0;
(f) Certificate of Licensor. Licensor shall have
delivered to Jacada a certificate executed on behalf of Licensor by its
President and Chief Executive Officer to the effect that, as of the Closing:
(i) all representations and warranties made by
the Licensor in this Agreement are true and
correct in all material respects;
(ii) all covenants and obligations of this
Agreement to be performed by Licensor on or
before such date have been so performed in
all material respects; and
(iii) the conditions set forth in this Section
have been satisfied; and
(g) Project Plan and Implementation Schedule. Licensor
shall have delivered to Jacada and Jacada shall have accepted the Project Plan
and Implementation Schedule for the Project, all as defined and described in
Section 13 hereof.
3.0 DELIVERY.
3.1 Delivery.
(a) Licensed Technology and Documentation. Licensor will
deliver to Jacada the Licensed Technology in Source Code form no later than the
Effective Date at a location to be designated by Jacada. In addition, Licensor
will provide to Jacada such other documentation and information as may be
reasonably required to enable Jacada to install and test the Licensed Technology
for compliance and acceptance by Jacada.
(b) Means of Delivery. All deliveries to Jacada shall be
made FCA Destination (INCO Terms, 1990) and pursuant to Jacada's written
instructions with respect to form (physical or electronic) and location.
3.2 Source Code Review. Until the Closing, Jacada shall have the
right to review and evaluate the Licensed Technology. Based on its review,
Jacada may determine in its sole discretion that it does not desire to license
the Licensed Technology. In this event, Jacada shall be entitled to terminate
this Agreement upon written notice to Licensor without liability.
4.0 LICENSE GRANTS AND RESTRICTIONS
4.1 Source Code License. Licensor grants to Jacada a paid-up,
non-exclusive, perpetual, irrevocable and worldwide license under Licensor's
Intellectual Property Rights to (i) copy, use internally, modify and enhance the
Source Code of the Licensed Technology to create Derivative Works, and to
support the Licensed Technology and integrate the Licensed Technology with
Jacada Products or other products, (ii) compile Source Code of the Licensed
Technology and Derivative Works into object code for use, display,
demonstration, marketing, distribution and sublicensing to third parties through
single or multiple tiers of distribution, and (iii) display, demonstrate,
market, distribute and sublicense Source Code copies of the Licensed Technology
and Derivative Works on any media or via any electronic or other distribution
method now known or later discovered. For the avoidance of doubt, the parties
expressly agree that the foregoing license shall be deemed to grant to Jacada
all of the rights and licenses to the Licensed Technology which are necessary
for Jacada to exercise all of the rights of an owner of the Licensed Technology,
subject to Sections 4.2, 5.1 and 9 hereof. Licensor expressly agrees that the
foregoing license is transferable to any third party (i) in connection with the
transfer by Jacada of any of its product lines in which the Licensed Technology
is incorporated; or (ii) which acquires all or substantially all of its assets
or stock, by operation of law or otherwise.
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4.2 Third Party Licenses. Jacada's sublicense agreement(s) shall
be consistent with Jacada's rights and obligations under this Agreement to the
extent permitted in all material respects.
4.3 Moral Rights. Licensor waives and agrees never to assert,
either during or following the term of this Agreement, any "moral" or equivalent
rights (including, without limitation, rights of attribution, integrity,
disclosure, and withdrawal) or to institute or maintain any action against
Jacada relative to any such rights in the Licensed Technology, Derivative Works,
error corrections or any Jacada Product. To the extent that such rights cannot
be waived by operation of law, Licensor grants Jacada a license to such rights
sufficient to allow Jacada to exercise the rights granted in this Agreement.
4.4 Technology Audit. Prior to the Closing, Jacada may, upon
reasonable notice to Licensor and at Jacada's sole expense, inspect Licensor's
facilities, its products and support efforts to evaluate and ensure compliance
with this Agreement. Jacada may conduct such inspections either directly through
its own employees or through an independent third party. Jacada will pay for any
such inspection. All such inspections shall be subject to the confidentiality
provisions of this Agreement.
5.0 OWNERSHIP AND PROPRIETARY NOTICES
5.1 Licensed Technology. Licensor asserts that it is the sole and
exclusive owner of the Licensed Technology and associated Intellectual Property
Rights therein. Jacada agrees that, as between Licensor and Jacada, Licensor is
the owner of the Licensed Technology and Licensor's associated Intellectual
Property Rights. Notwithstanding the foregoing, nothing herein shall be deemed a
transfer or license by Jacada of any Intellectual Property Rights that Jacada
may now possess or acquire in the future which may cover any aspect of the
Licensed Technology or the Derivative Works.
5.2 Derivative Works. Subject to Licensor's underlying
Intellectual Property Rights in the Licensed Technology, Jacada shall own all
Derivative Works, Jacada Products and associated Intellectual Property Rights
therein. Jacada may register the copyright in Derivative Works in its own name,
identifying Licensor's interest in the Licensed Technology as required by
applicable Copyright Office rules and regulations.
5.3 Further Assurances. Each party hereby assigns to the other any
Intellectual Property Rights in newly developed technology necessary to effect
the allocation of ownership set forth in this Section 5.0 and shall take such
reasonable additional actions as may be required, if any, to perfect the other's
ownership interest in accordance herewith including, without limitation, the
execution and delivery of necessary and appropriate instruments of assignment
(in recordable form, where necessary). To this end, Licensor hereby irrevocably
designates and appoints Jacada as its agent and attorney-in-fact to act for and
in its behalf and stead to execute, register and file any such applications, and
to do all other lawfully permitted acts to further the registration, prosecution
and issuance of patents, copyrights or similar protections with the same legal
force and effect as if executed by Licensor.
5.4 Proprietary Notices. Jacada agrees to place on the Jacada
Products or associated Documentation a general acknowledgement of the
proprietary interests of Jacada's suppliers (but not specifically identifying
Licensor). Jacada shall not remove any of Licensor's proprietary notices
embedded in the Licensed Technology which are not visible to end users of the
Jacada Products. Jacada may place its own copyright and other proprietary
notices on the Jacada Products and/or any Derivative Works.
6.0 PAYMENTS.
6.1 License Fee. In consideration of the licenses granted
hereunder and subject to the terms and conditions of this Agreement, Jacada
shall pay to Licensor as full consideration for such licenses and the covenants
made in connection with the transactions contemplated hereby, a one-time license
fee of One Million Five Hundred Thousand Dollars (US$1,500,000.00) (the "License
Fee"), payable as follows:
(a) Jacada shall pay to Licensor the sum of $500,000.00
at Closing.
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(b) Upon acceptance by Jacada of the deliverables
described in Section 13, Jacada shall pay to Licensor the sum of $700,000.00.
(c) Three (3) months after the date that the Jacada
Product which incorporates the Licensed Technology is made generally available
by Jacada, Jacada shall pay to Licensor the sum of $300,000.00.
6.2 Taxes. Licensor shall pay all taxes, levies, or duties
associated with the delivery of the Licensed Technology or the payment of the
License Fee by Jacada hereunder, whether based on gross revenue, the delivery,
possession, or use of the Licensed Technology or otherwise.
6.3 Expenses. Whether or not the transactions contemplated
hereunder are consummated, all fees and expenses incurred in connection with the
negotiation or effectuation of the terms and conditions of this Agreement and
the transactions contemplated hereby, including without limitation all legal,
accounting, financial, advisory, consulting and other fees and expenses of third
parties, shall be the obligation of the respective party incurring such fees and
expenses.
7.0 MAINTENANCE AND SUPPORT SERVICES.
7.1 Error Correction and Support Services. In consideration of the
License Fee, Licensor shall provide or cause a third party reasonably acceptable
to Jacada to provide to Jacada all error corrections for the Licensed Technology
which are created by or for Licensor and remain under the control of Licensor.
7.2 Transfer of Information. Licensor shall provide or cause a
third party reasonably acceptable to Jacada to provide Jacada with reasonable
assistance as necessary to enable Jacada to use and modify the Licensed
Technology and support the Jacada Products as contemplated herein including, as
may be reasonably required, provision of on-site training, engineering support
and available technical documents which remains under Licensor's control. Jacada
acknowledges and agrees that the individuals to be employed by Jacada as
referred to in Section 2.2(c) hereof are intended to provide the transfer of
information required herein in their capacity as employees of Jacada after the
Closing.
8.0 TERM AND TERMINATION.
8.1 Term of Agreement. The term of this Agreement shall be
perpetual unless terminated sooner in accordance herewith.
8.2 Termination Prior to Closing.
(a) Pre-Close Termination. Except as provided in Section
8.3 below, this Agreement may be terminated and the transactions contemplated
hereunder abandoned at any time prior to the Closing:
(i) by mutual written consent of Jacada and
Licensor;
(ii) by Jacada or by Licensor if: (A) the Closing
has not occurred by July 30, 2000; provided, however, that the
right to terminate this Agreement under this Section
8.2(a)(ii) shall not be available to any party whose action or
failure to act has been a principal cause of or resulted in
the failure of transactions contemplated hereunder to occur on
or before such date and such action or failure constitutes a
breach of this Agreement; (B) there shall be a final
nonappealable order of a court of competent jurisdiction in
effect preventing consummation of the transactions
contemplated hereunder, or (C) there shall be any statute,
rule, regulation or order enacted, promulgated or issued or
deemed applicable to the transactions contemplated hereunder
by any government entity that would make consummation of the
transactions contemplated hereunder illegal;
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(iii) by Jacada if there shall be any action
taken, or any statute, rule, regulation or order enacted,
promulgated or issued or deemed applicable to the transactions
contemplated hereunder by any government entity, which would
prohibit, materially restrict or otherwise affect Jacada's
ability to utilize, practice or exercise the license grants to
the Intellectual Property Rights in the Licensed Technology;
(iv) by Jacada if it is not in material breach of
its obligations under this Agreement and there has been a
material breach of any representation, warranty, covenant or
agreement contained in this Agreement on the part of Licensor
and such breach has not been cured within ten (10) calendar
days after written notice to Licensor (provided that no cure
period shall be required for a breach which by its nature
cannot be cured);
(v) by Jacada, at its sole option, prior to the
Closing; or
(vi) by Licensor if it is not in material breach
of its obligations under this Agreement and there has been a
material breach of any representation, warranty, covenant or
agreement contained in this Agreement on the part of Jacada
and such breach has not been cured within ten (10) calendar
days after written notice to Jacada (provided that, no cure
period shall be required for a breach which by its nature
cannot be cured).
(b) Effect. In the event of termination of this Agreement
as provided in Section 8.2(a), this Agreement shall forthwith become void and
there shall be no liability or obligation on the part of Jacada or Licensor,
provided that each party shall remain liable for any breaches of this Agreement;
provided further that, the provisions of Sections 6.3, 9.0, 14.0 and this
Section 8.2(b) shall remain in full force and effect and survive any termination
of this Agreement.
8.3 Termination After Closing.
(a) Post-Close Termination. If either party fails to
comply with any material term of this Agreement, the other party may terminate
this Agreement following sixty (60) days' written notice to the defaulting party
specifying any such breach unless, within the period of such notice, all
breaches specified therein are remedied. If the breach is one which, by its
nature, cannot be fully remedied in sixty (60) days, the parties shall cooperate
to prepare a mutually acceptable plan to cure the breach during which time and
then pursuant to which breaching party shall undertake diligent good faith
efforts to remedy the breach and continue to use reasonable, good faith and
diligent efforts to promptly remedy the breach. If the parties are unable to
agree upon a plan to remedy the breach following thirty (30) days and the breach
remains unremedied, the non-breaching party may terminate this Agreement. If,
after the parties have agreed upon a remedial plan, the breaching party, fails
to comply with said plan, the non-breaching party may thereafter terminate this
Agreement effective on written notice.
(b) Licensor's Insolvency. In the event Licensor becomes
insolvent, enters into voluntary or involuntary bankruptcy, ceases to conduct
business or assigns its interests in this Agreement to a third party creditor:
(i) Jacada may continue to exercise the license rights granted to it pursuant to
Section 4.0; and (ii) Jacada reserves all rights in the Licensed Technology and
related materials to protect Jacada's interests therein pursuant to Section
365(n) (and any amendment thereto) of the U.S. Bankruptcy Code.
(c) Effect of Termination or Expiration.
(i) Executory Obligations. In the event this
Agreement expires or is terminated for any reason, the
Parties' executory obligations to each other, except for any
outstanding payments due, shall also terminate except as
expressly provided in this Section 8.0.
(ii) Upon the expiration or termination of this
Agreement for Licensor's material breach, Jacada shall
continue to have the rights granted under Section 4.0 and
Section 7.0 with respect
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to the Licensed Technology. All licenses and sublicenses
granted by Jacada prior to such termination shall remain in
full force and effect.
(d) Survival. Section 4.0 (License Grant), Section 5
(Ownership and Proprietary Notices), 9.0 (Confidential Information), 10.0
(Warranty), 11.0 (Indemnification), 12.0 (Limitation of Liability), and 14.0
(Miscellaneous) of this Agreement shall survive any termination or expiration of
the Agreement.
9.0 CONFIDENTIAL INFORMATION
9.1 Obligation. Except as provided and permitted in this
Agreement, neither party may use, copy, distribute or disclose Confidential
Information it receives from the party under this Agreement, without the prior
written authorization of the disclosing party. Each party must hold in
confidence Confidential Information received from the other and must protect the
confidentiality thereof with the same degree of care that it exercises with
respect to its own information of like importance, but in no event less than
reasonable time, for the term of this Agreement (but in no event more than three
(3) years from the date of receipt of the Confidential Information). Neither
party shall be liable for any inadvertent or unauthorized disclosure of
Confidential Information, provided that it exercises at least the standard of
care set forth above to prevent disclosure and takes reasonable steps to
mitigate any damage and prevent further disclosure.
9.2 Exceptions. Section 9.1 does not apply to any portion of the
Confidential Information which a receiving party can demonstrate:
(a) is now, or hereafter becomes, through no act or
failure to act on the part of receiving party, generally known in the computer
industry;
(b) was possessed by the receiving party without an
obligation of confidentiality at the time of receiving such Confidential
Information;
(c) is rightfully obtained by the receiving party without
restriction on disclosure; or
(d) is independently developed by receiving party without
any use of the Confidential Information.
9.3 Employee Access. Each party must inform its employees having
access to the other's Confidential Information of restrictions required to
comply with this Section. The employees shall be contractually required to
comply with this Section. Each party agrees to provide notice to the other
immediately after learning of or having reason to suspect a breach of any of the
restrictions of this Section 9.0.
9.4 Non-Solicitation, Licensor agrees that it will not solicit any
Jacada employee for employment during the term of this Agreement or for three
(3) years thereafter.
9.5 Legally Required Disclosures. The receiving party may divulge
Confidential Information pursuant to statute, regulation or the order of a court
of competent jurisdiction, provided that such party notifies the other party.
9.6 Independent Development. Each party understands that the other
may develop or receive information similar to the Confidential Information.
Subject to copyrights and patent rights of each party, (i) either party may
develop or acquire technology or products, for itself or others, that are
similar to or competitive with the technology or products of the disclosing
party; and (ii) each party is free to use (but not disclose to third parties)
information which may be retained in the unaided memory of recipient's employees
or contractors who have had access to the Confidential Information of the other
party disclosed hereunder; provided, however, that information inherently
disclosed in products shall not be subject to this limitation.
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9.7 Distribution. Notwithstanding any other provision of this
Agreement, the parties acknowledge and agree that Jacada may distribute the
Licensed Technology and Derivative Works thereof using any of Jacada's business
models for distributing software.
9.8 Publicity. Neither party shall disclose the existence or the
terms and conditions of this Agreement to any third party, except as may be
required to implement and enforce the terms of this Agreement, or as may be
required by legal procedure or by law, or as may be required by an existing or
potential investor, acquiring company, bank or other financial institution,
under appropriate non-disclosure terms in connection with a merger, acquisition,
financing, loan agreement or similar corporate transaction. Licensor shall not,
without first obtaining the written consent of the other party, announce this
Agreement in a press release or other promotional material.
10.0 WARRANTIES AND DISCLAIMER OF WARRANTY.
10.1 Ownership and Non-infringement. As of the Effective Date and
continuing thereafter, Licensor represents and warrants that (i) the Licensed
Technology will not infringe or misappropriate any Intellectual Property Rights
or trademarks of any third party; (ii) Licensor is the sole owner of the
Licensed Technology and has the sole and exclusive right and power to enter into
this Agreement and grant the licenses set forth herein; (iii) except for the
license to Sun Microsystems, Inc. and its distributors in the United Kingdom,
and Licensor's exclusive license grant to PCS, Licensor has not transferred
ownership of, or granted any license of or right to use, or authorized the
retention of any rights to use any Intellectual Property Right in the Licensed
Technology to any other person; and (iv) none of the Intellectual Property
Rights in the Licensed Technology was developed by or on behalf of or using any
grants or subsidies of any governmental entity.
10.2 Conformity to Documentation. Licensor represents and warrants
that the Licensed Technology conforms to the Technical Documentation in all
material respects.
10.3 Viruses. Licensor represents and warrants that the Licensed
Technology and associated media contain no computer instructions designed to (a)
disrupt, damage or interfere with use of computer or telecommunications
equipment or facilities, or (b) disrupt or corrupt the use, operation or results
of any computer program.
10.4 Work Products. With respect to the consulting and development
services to be provided and the Work Products to be developed under Section 13
hereof, Licensor represents and warrants that:
(a) the work to be performed hereunder shall be of the
highest professional quality and will conform to generally accepted standards
for software in the software development field. Any services performed by
Licensor which are determined by Jacada to be of less than the highest
professional quality or which contain errors or defects shall be corrected by
Licensor without charge to Jacada;
(b) the Work Products will contain only (A) original
material created by Licensor or (B) material which has been properly licensed
from third parties and has been used by Licensor consistent with the licenses
for such materials;
(c) the Work Products will be original works, and
Licensor has not entered and will not enter into any contract or agreement which
would prohibit or affect this Agreement or diminish Jacada's rights in and to
the Work Product;
(d) the Work Products have not been assigned, transferred
or otherwise encumbered, and the Work Products, or any portion thereof, do not
infringe any patents, copyrights, trade secrets, or other proprietary rights of
any third party, and Licensor has no reason to believe that any such
infringement or claims thereof could be made by third parties;
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(e) the Work Products shall conform to any specifications
or other documentation provided by Jacada to Licensor or developed by Licensor
and approved by Jacada, including the specifications to be agreed upon by the
parties in connection with Licensor's obligations under Section 13 hereof; and
(f) the Work Products have not been published,
distributed or disclosed in a manner which would cause the loss of copyright
protection under federal law or a loss of Jacada's ownership or trade secret
rights in the Work Products.
10.5 No Licenses to Competitors. Licensor warrants and agrees that
during the term of this Agreement it will not license the Licensed Technology to
any of the parties listed on Attachment 3 without the prior written consent of
Jacada.
10.6 Disclaimer. EXCEPT AS PROVIDED IN THIS AGREEMENT, LICENSOR
DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO,
THE WARRANTIES OF DESIGN, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11.0. INDEMNIFICATION
11.1 Indemnification by Licensor. Licensor will indemnify, defend,
and hold harmless at its expense, any and all claims, losses, liabilities,
damages, costs and expenses, including reasonable attorneys' fees and expenses
of investigation (hereinafter individually a "Loss" and collectively "Losses")
incurred by Jacada directly or indirectly as a result of: (i) any claim made or
action brought against Jacada to the extent that it is based on a claim that any
use or distribution or sublicense of the Licensed Technology in accordance with
this Agreement: (A) infringes any third party Intellectual Property Rights or
trademarks; or (B) caused damage to Jacada or a third party; or (ii) any breach
or inaccuracy of a representation or warranty of Licensor contained in this
Agreement. Licensor will indemnify Jacada from any settlements, costs, damages
and fees incurred by Jacada in such action which are attributable to such claim;
provided that Jacada notifies Licensor in writing of the claim, permits Licensor
to defend, compromise or settle the claim and provides all reasonably available
information, assistance and authority to Licensor. Expenses incurred by Jacada
hereunder will be reimbursed by Licensor.
11.2 Indemnification by Jacada. Jacada will indemnify, defend, and
hold harmless at its expense, any claim made or action brought against Licensor
to the extent that it is based on a claim that any use or distribution of the
Jacada Product in accordance with this Agreement: (i) infringes any third party
intellectual property rights, provided however, that the claim is based upon the
use and distribution of the Jacada Product and the claim is not based upon the
unmodified Licensed Technology. Jacada will indemnify the Licensor from any
settlements, costs, damages and fees incurred by the Licensor in such action
which are attributable to such claim; provided that the Licensor notifies Jacada
in writing of the claim, permits Jacada to defend, compromise or settle the
claim and provides all reasonably available information, assistance and
authority to Jacada.
11.3 Exceptions. Licensor shall have no obligation to defend or
indemnify Jacada for any claim based on the use of other than the then current
release of the Licensed Technology which is provided to Jacada by Licensor, if
such claim could have been avoided by the use of the current release of the
Licensed Technology (which was similar in terms of product capabilities to the
earlier version) and such version had been made available to Jacada on terms
comparable to those applicable to prior releases (but without additional charge)
but Jacada, with knowledge of the potential claim, chose to retain the prior
version.
11.3 Remedies. Should the Licensed Technology become, or in
Licensor's reasonable opinion, be likely to become the subject of a claim of
infringement of any Intellectual Property Rights associated with the Licensed
Technology, Licensor shall, at its sole expense either: (i) procure for Jacada
the right to continue to use the Licensed Technology; or (ii) replace or modify
the Licensed Technology to make it non-infringing, provided that the same
functions are performed by the replaced or modified Licensed Technology. If (i)
or (ii) are not reasonably possible or are technically infeasible, respectively,
Licensor shall so notify Jacada in writing and Jacada may elect, at its option,
either to: (a) relinquish Jacada's license to use such Licensed Technology and
Licensor shall fully refund to Jacada any amount paid for such Licensed
Technology; or (b) continue to use the Licensed Technology; provided
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that Licensor shall have no further obligation to indemnify and defend Jacada
following the date of such notice for such infringement and Jacada shall have no
further obligation to pay any further fees to Licensor.
12.0 LIMITATION OF LIABILITY
EXCEPT FOR DAMAGES ARISING PURSUANT TO A BREACH OF SECTION 10 AND IN CONNECTION
WITH EACH PARTY'S OBLIGATION OF INDEMNITY TO THE OTHER, IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR AN AMOUNT IN EXCESS OF TWO TIMES (2X) THE TOTAL FEES PAID BY
JACADA FOR THE LICENSED TECHNOLOGY NOR FOR ANY LOST REVENUES, PROFITS OR OTHER
SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS
AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF
SUCH DAMAGES. Notwithstanding the foregoing, the parties agree that Licensor's
liability for the failure of Licensor to deliver or cause to be delivered
acceptable deliverables under Section 13 hereof shall be limited to the amount
of fees actually paid by Jacada to Licensor hereunder.
13.0 CONSULTING AND DEVELOPMENT SERVICES
13.1 Services. For the License Fee set forth herein, Licensor
agrees to provide or cause a third party reasonably acceptable to Jacada to
provide the consulting and development services to integrate the Licensed
Technology into the Jacada Products (the "Project") as more particularly
described in a project plan to be developed by Licensor and accepted by Jacada
prior to Closing (the "Project Plan"). The Project Plan shall include the
Implementation Schedule described in Section 13.3. The materials resulting from
Licensor's services are sometimes hereinafter referred to as "Work Product."
13.2 Ownership.
(a) Licensor agrees that all work performed by it for
Jacada or for including, without limitation, all software, code, and
documentation as well as all program materials, flow charts, notes, outlines,
and the like created in connection therewith and any Confidential Information
developed or generated by Licensor in the course of working for Jacada, shall be
the sole property of Jacada as its creation, translation, compilation or
fixation in a tangible medium of expression. Licensor further agrees that any
inventions or ideas in whole or in part conceived or made by it during or after
the term of its provision of consulting services to Jacada which are made
through the use of any of Jacada's Confidential Information or any of Jacada's
equipment, facilities, or which result from any work performed by Licensor for
Jacada, shall belong exclusively to Jacada and shall be considered part ofthe
Work Product and Jacada's Confidential Information for purposes of this
Agreement.
(b) Jacada shall own all right, title and interest in and
to the Work Products, including all copyrights and proprietary rights therein.
Licensor expressly acknowledges that the parties have agreed that all
copyrightable aspects of the Work Product are to be considered "works made for
hire" within the meaning of the Copyright Act of 1976, as amended (the "Act"),
of which Jacada is to be the "author" within the meaning of such Act. All such
copyrightable works, as well as all copies of such works in whatever medium
fixed or embodied, shall be owned exclusively by Jacada as its creation, and
Licensor hereby expressly disclaims any interest in any of them. Licensor
expressly acknowledges that it is not a joint author and that the Work Products
and all other work created by Licensor hereunder are not joint works under the
Act.
(c) In the event (and to the extent) that any Work
Product or any part or element thereof is found as a matter of law not to be a
"work made for hire" within the meaning of the Act, Licensor hereby conveys and
assigns to Jacada the sole and exclusive right, title and interest in the
ownership to all such Work Products, and all copies of any of them, without
further consideration, and agrees to assist Jacada to register, and from time to
time to enforce, all patents, copyrights and other rights and protections
relating to the Work Product and the Intellectual Property Rights therein in any
and all countries. To that end, Licensor agrees to execute and deliver all
documents requested by Jacada in connection therewith, and irrevocably
designates and appoints Jacada as its agent and attorney-in-fact to act for and
in its behalf and stead to execute, register and file any such applications, and
to do all
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other lawfully permitted acts to further the registration, prosecution and
issuance of patents, copyrights or similar protections with the same legal force
and effect as if executed by Licensor.
(d) Jacada does not wish to incorporate any unlicensed or
unauthorized materials into its products. Therefore, Licensor agrees that it
will not knowingly disclose to Jacada, or cause Jacada to use any information or
material which is confidential to any third party unless Jacada has a written
agreement with such third party or Jacada otherwise has the right to receive and
use such information. Licensor will not incorporate into Licensor's work any
materials which are subject to the copyrights of any third party unless Jacada
has a written agreement with such third party or otherwise has the right to
receive and use such information.
13.3 Implementation Schedule. An implementation schedule shall be a
part of the Project Plan and shall set forth the expectations of the parties as
to the timing of the various stages of the Project and delivery of the Work
Product (the "Implementation Schedule"). Licensor recognizes that time and
timely performance are of the essence in this Agreement. Failure by Licensor to
implement and integrate the Licensed Technology with the Jacada Products and
complete the Project according to the Implementation Schedule shall result in
expense and damage to Jacada. Additionally, Licensor shall use its best efforts
to ensure that any such delay does not result in slippage of later deadlines.
13.4 Acceptance Testing.
(a) Jacada shall conduct the acceptance tests provided
for herein or agreed upon by the parties (the "Acceptance Tests") after Licensor
has certified to Jacada in writing that Licensor's testing of the deliverables
which are part of the Work Product is completed, and that the deliverables are
fully operational and ready for acceptance testing by Jacada. The Acceptance
Tests shall include verification of whether:
(i) the deliverables conform to the specifications and/or
the requirements set forth in the Project Plan or other
documents;
(ii) the Licensed Technology has been fully integrated
into the Jacada Products, and that the integrated product is
capable of running on a repetitive basis without failure and
meets or exceeds the performance standards set by Jacada; and
(iii) any and all other criteria set forth in any
agreed-upon specifications have been met.
(c) Following its receipt of the Licensor's
certification, Jacada shall perform and conduct the Acceptance Tests. Jacada
shall notify Licensor in writing whether the deliverable has passed the
Acceptance Tests. Licensor personnel may be present at such Acceptance Tests at
no cost to Jacada. All Acceptance Tests will be conducted in accordance with the
Implementation Schedule.
(d) If any deliverable fails to pass the Acceptance
Tests, Jacada shall so notify Licensor in writing specifying the nature of such
failure, and Licensor shall have five (5) business days to correct such failure
after which Jacada shall repeat the Acceptance Tests. If the deliverable again
fails to pass the Acceptance Tests, Licensor acknowledges that Jacada shall have
the option to (i) extend Licensor's right to continue attempting to cure the
failures for a specified period of time, however, in no event shall such
extension exceed a period of five (5) Business Days for each such extension, or
(ii) terminate the consulting and development services hereunder, in which event
Jacada shall not owe the payment described in Section 6.1 (b) or (c).
14.0 MISCELLANEOUS
14.1 Force Majeure. A party is not liable for non-performance of
this Agreement, to the extent to which the nonperformance is caused by events or
conditions beyond that party's control and the party gives prompt written notice
to the other party and makes all reasonable efforts to perform; provided,
however, that if Licensor fails to provide support or development for more than
sixty (60) days, Jacada may offset amounts incurred by it as a result of such
failure to perform against fees otherwise due hereunder.
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14.2 Severability. In the event that any part of this Agreement is
found to be unenforceable, such part and the remainder shall continue in effect,
to the extent permissible by law and consistent with the intent of the parties
as of the Effective Date.
14.3 Relationship of the Parties. No employees, consultants,
contractors or agents of one party shall, as a result of this Agreement, be
considered agents, employees, partners, franchisees or joint venturers of the
other party, nor do they have any authority to bind the other party by contract
or otherwise to any obligation. They will not represent to the contrary, either
expressly, or implicitly.
14.4 Choice of Law: Jurisdiction and Venue. This Agreement is made
under and shall be governed by and construed in accordance with the laws of the
State of Georgia (except that body of law controlling conflict of laws) and
specifically excluding from application to this Agreement that law known as the
United Nations Convention on the International Sale of Goods. The parties hereby
exclusively and irrevocably submit to, and waive any objection against the
personal jurisdiction of the United States District Court for the Northern
District of Georgia, and the state courts of the State of Georgia for ▇▇▇▇▇▇
County.
14.5 Import and Export Laws. Licensed Technology, including without
limitation, technical data, is subject to U.S. export control laws and may be
subject to export or import regulation in other countries. The parties agree to
comply strictly with all such regulations and acknowledge that they have the
responsibility to obtain such licenses to export, re-export or import the
Licensed Technology as may be required.
14.6 Notices. All notices required hereunder must be in writing and
receipt must be confirmed. Notices required with respect to Term and Termination
and Indemnification must be provided by express courier. Notices shall be
provided to the addressesses set forth in the preamble of this Agreement. In
addition, any notice from Licensor to Jacada should be sent to Jacada Inc., ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇, Attention: General
Counsel.
14.7 No Exclusive Remedy. Unless specifically designated, nothing
in this Agreement shall be construed as an exclusive remedy.
14.8 Counterparts. This Agreement may be executed in counterparts,
each of which will be deemed an original, and all of which will constitute one
agreement.
14.9 Construction. This Agreement has been negotiated by the
parties and by their respective counsel. This Agreement will be interpreted
without any strict construction in favor of or against either party. The
original of this Agreement has been written in English, and such version shall
be the governing version of the Agreement. To the extent allowed under
applicable law, Licensor waives any right it may have, if any, under any law or
regulation to have this Agreement written in a language other than English.
14.10 Entire Agreement. This Agreement, including all Attachments
hereto, constitutes the entire agreement between the parties with respect to the
subject matter hereof, and supersedes and replaces all prior and contemporaneous
understandings or agreements, written or oral regarding such subject matter.
14.11 Amendment and Waiver. Unless otherwise provided herein, this
Agreement may not be modified, amended, or rescinded, in whole or part except by
a written instrument signed by the duty authorized representatives of both
parties. Failure to either party to enforce any provision of this Agreement
shall not be deemed a waiver of future enforcement of that or any other
provision. A waiver shall be effective upon execution by the waiving party.
14.12 Assignment. Neither party may assign or otherwise transfer any
of its rights or obligations under this Agreement, without the prior written
consent of the other party, except that Jacada may assign this Agreement to any
of its subsidiaries or an affiliated company.
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14.13 No Third Party Beneficiaries. This Agreement is made for the
benefit of the parties, and not for the benefit of any third parties unless
otherwise agreed to by the parties.
14.4 Survival. The terms and conditions of this Agreement and the
obligations, warranties and covenants of the parties set forth herein shall
survive the Closing.
IN WITNESS WHEREOF the parties have caused this Agreement to be signed
by their duly authorized representatives.
JACADA LTD. CORTLANDT READE TECHNICAL
CORPORATION
By: /s/ By: /s/
---------------------------------- --------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------- -----------------------------
Title: CEO Title: President
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