EXHIBIT 10.33
CONTRACT
FOR
COMPUTER SOFTWARE
POSTALSOFT SOFTWARE LICENSE AGREEMENT
This Contract Agreement is entered into effective the 13TH day of FEBRUARY,
1996, by and between INTERNATIONAL BILLING SERVICES, INC., with offices at 5220
ROBERT J. MATTHEWS PARKWAY, EL DORADO HILLS, CALIFORNIA 95762, hereinafter
referred to as "Customer," and Postalsoft, Inc., a Wisconsin corporation engaged
in the business of distributing computer hardware and software with principal
offices at 4439 MORMON COULEE RD., LA CROSSE, WISCONSIN 54601-6245, hereinafter
referred to as "POSTALSOFT." In consideration of the payments, agreements,
covenants, and mutual undertakings hereinafter set forth, the parties agree as
follows:
This Agreement consists of this document together with the following
attachments, which are incorporated herein by reference:
ATTACHMENT A: Designated Postalsoft Software Schedule
ATTACHMENT B: Designated Performance Schedule
ATTACHMENT C: Designated Extended Service Program (ESP) Schedule
POSTALSOFT and CUSTOMER agree that the terms set out below will apply to any
CUSTOMER order for POSTALSOFT Licensed Software. Under these terms and
conditions Postalsoft will furnish such Licensed Software to CUSTOMER, and grant
to CUSTOMER a perpetual, nontransferable and nonexclusive limited license of the
software for the Territory known as the United States of America, subject to the
terms set forth below.
For the purpose of simplifying the ordering procedure under this Agreement,
CUSTOMER and POSTALSOFT may amend this Agreement to allow future additional
Licensed Software to become subject to this Agreement when a written POSTALSOFT
PRODUCT ADDENDUM is signed by Customer and accepted by POSTALSOFT.
THE CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT INCLUDING THE TERMS
SET FORTH BELOW, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND
CONDITIONS. FURTHER, CUSTOMER AGREES THAT THIS AGREEMENT IS THE COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL
PROPOSALS, CONCURRENT OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER
COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT.
GENERAL PROVISIONS
A. DEFINITIONS
1. LICENSED SOFTWARE. For purposes of this Agreement, "Licensed Software"
shall mean licensed data processing programs consisting of a series of
computer instructions or statements and any related licensed materials,
such as data base files and operating instructions, which programs and
materials are listed in ATTACHMENT A and the POSTALSOFT PRODUCT ADDENDUM.
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2. ESP. For purposes of this Agreement, "ESP", shall mean Extended Service
Program comprising changes or corrections to Licensed Software to make the
Licensed Software perform the functions described in the User Manuals, or
to otherwise correct errors contained in Licensed Software.
B. LICENSE TERMS AND RESTRICTIONS
1. Each license granted under this Agreement authorizes the CUSTOMER to:
a. use the Licensed Software only at a specific installation site and on
a specific computer as designated in ATTACHMENT A and/or the
POSTALSOFT PRODUCT ADDENDUM and
b. utilize operating instructions and User Manuals in support of the use
of the Licensed Software, and
c. make one (1) copy of the Licensed Software in machine-readable form
solely for backup purposes. Additional copying of Licensed Software
is unauthorized.
2. Licensed Software documentation, including User Manuals and instructions in
printed form, may not be copied. Additional copies of printed materials
may be obtained under license from POSTALSOFT at the charges then in
effect.
3. The CUSTOMER is authorized to transfer any license to and use the Licensed
Software on a backup machine, installation or location designated in
ATTACHMENT A and/or the POSTALSOFT PRODUCT ADDENDUM, if the designated site
is temporarily inoperable or unusable and POSTALSOFT is immediately
notified of such use in writing, but in no event shall such temporary
period exceed ninety (90) days.
4. This License does not include the right to sublicense, transfer, or assign
the Licensed Software without the prior written consent of POSTALSOFT and
any such attempted sublicense, transfer, or assignment is unauthorized.
5. The Customer agrees not to remove or obscure Postalsoft's property rights
notices, or alter, decompile or disassemble the programs supplied in object
code form.
C. CUSTOMER RIGHTS AND OBLIGATIONS
1. INSTALLATION AND ACCEPTANCE. Installation of the Licensed Software can be
performed by POSTALSOFT or CUSTOMER. Installation responsibility is
designated in the CONTRACT FOR INSTALLATION AND TRAINING. The Licensed
Software shall be deemed accepted once the Licensed Software performs the
functions described in the User Manual.
2. ESP. CUSTOMER shall purchase the Extended Service Program (ESP) for the
Licensed Software as set forth in ATTACHMENT C. Following the initial ESP
period, CUSTOMER shall have the option to renew for successive twelve (12)
month periods. POSTALSOFT shall notify the CUSTOMER thirty (30) days or
more prior to the end of each ESP period. Subject to the provisions of
Section E.2. hereof, under no circumstances shall CUSTOMER cancel or
terminate the ESP midterm and shall only terminate for the successive
period by nonrenewal.
3. CONFIDENTIALITY. The performance of this Agreement may provide each party
with confidential information concerning the other party's business or
business practices. Both parties agree to hold all such information in
strict confidence and not to disclose or divulge same to any third party
for any reason whatsoever without the prior written consent of the
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other party. Such confidential material and information must be designated
in writing at the time of disclosure.
4. INVOICING AND PAYMENT. Invoices shall be issued by POSTALSOFT upon
delivery of the Licensed Software and sixty (60) days prior to the renewal
of any ESP service. Such invoices shall be due and payable within thirty
(30) days for the Licensed Software and ESP service. Invoices not paid
within such thirty (30) days will have a one (1) percent per month interest
charge, or the maximum interest allowed by law if less, assessed against
the unpaid balance.
D. PROPRIETARY RIGHTS OF POSTALSOFT
1. PROPRIETARY RIGHTS. The Licensed Software and all programs developed
hereunder and all copies thereof are proprietary to POSTALSOFT and title
thereto remains in POSTALSOFT. All applicable rights to patents,
copyrights, and trade secrets in the Licensed Software or any modifications
or derivative works made at CUSTOMER'S request are and shall remain in
POSTALSOFT. CUSTOMER shall not sell, transfer, publish, disclose, display,
or otherwise make available the Licensed Software or copies thereof to
others without Postalsoft's prior written consent. CUSTOMER agrees to
secure and protect each module, software product, documentation, and copies
thereof in a manner consistent with the maintenance of Postalsoft's rights
therein and to take appropriate action by instruction or agreement with its
employees or consultants who are permitted access to each program or
software product to satisfy its obligations hereunder. All copies made by
the CUSTOMER of the Licensed Software and other programs developed
hereunder, including translations, compilations, partial copies with
modifications, and updated works, are the property of POSTALSOFT.
Violation of any provision of this paragraph shall be the basis for
immediate termination of this License Agreement.
CUSTOMER, in recognition of the fact that the Licensed Software contains
highly confidential and proprietary POSTALSOFT information and that
POSTALSOFT will be irreparably damaged if the security of the Licensed
Software is breached, agrees that POSTALSOFT is entitled to injunctive
relief and damages as may be determined by a court of competent
jurisdiction.
2. TERMINATION AND SURVIVAL BEYOND TERMINATION. The terms and provisions
contained in this Section D shall survive the termination of this Agreement
or any license hereunder. Upon any termination of a license hereunder,
CUSTOMER shall return the Licensed Software and delete all copies thereof
from its libraries. At POSTALSOFT'S request, CUSTOMER shall certify in
writing, in a form acceptable to POSTALSOFT, that it has complied with its
obligations under this Section D.
E. LIMITED WARRANTY AND LIABILITY
1. LIMITED WARRANTY
a. POSTALSOFT warrants, that for a period of ninety (90) days from
acceptance , not to exceed one hundred twenty (120) days from
installation of any Licensed Software as provided in Section C. 1
hereof, such Licensed Software, when properly installed, will perform
the functions described in its User Manuals subject to the
understanding that the Licensed Software and information in any
database will become dated if CUSTOMER fails to subscribe to ESP, and
accordingly, all warranties and obligations of POSTALSOFT shall
terminate with any ESP termination.
After ninety (90) days from the acceptance date, error corrections
made to the Licensed Software will only be made available as a service
of the Extended Service Program.
Notwithstanding the foregoing, as enhanced versions of the Licensed
Software are released to current ESP CUSTOMERS, POSTALSOFT'S
obligations to correct problems in the
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Licensed Software shall only apply to the most recent version of same.
POSTALSOFT shall not be obligated to correct any error in an old
version of the Licensed Software if the error has been corrected in a
newer version, notwithstanding that the CUSTOMER may not have received
such newer version by reason of its failure to have elected to receive
ESP hereunder.
b. POSTALSOFT further warrants its rights to enter into this Agreement
and/or the right to grant this License and agrees to defend or settle,
at its expense, any action at law against CUSTOMER arising from a
claim that any Licensed Software infringes any intellectual property
right, or at POSTALSOFT'S option, it may terminate this License and
refund the license fee paid, proratably, based upon a thirty-six (36)
month useful life of the Licensed Software subject to CUSTOMER'S
obligation under Section D.2 hereof.
c. POSTALSOFT MAKES NO FURTHER WARRANTY AND DISCLAIMS ANY AND ALL OTHER
WARRANTIES OF ANY KIND OR NATURE WHETHER WRITTEN OR VERBAL, INCLUDING,
BUT NOT LIMITED TO, WARRANTIES OF RESULTS, PERFORMANCE,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, RESOURCE
UTILIZATION, RESPONSE TIME, OR SYSTEM OVERHEAD.
2. LIMITED LIABILITY. POSTALSOFT'S entire liability and CUSTOMER'S exclusive
remedy shall be as follows:
a. In situations involving performance or nonperformance of Licensed
Software furnished under this Agreement, CUSTOMER'S sole remedy is
replacement or correction of the Licensed Software by POSTALSOFT so
that it will perform the functions as described in the User Manuals.
In the event POSTALSOFT is unable to correct the deficiency within a
reasonable period of time, which in no event shall be less than sixty
(60) days, POSTALSOFT'S liability shall be limited to:
(1) a refund of the license fee paid by CUSTOMER to POSTALSOFT for
the specific Licensed Software in question, provided the claim of
nonperformance is made by CUSTOMER and received by POSTALSOFT
within the ninety (90) day warranty period as set forth in
Section E. 1. a. hereof, or
(2) a refund of the unused, prepaid, prorata ESP fee, if the claim is
received after the expiration of the ninety (90) day warranty
period. All claims made by CUSTOMER hereunder must be in writing.
b. In no event shall POSTALSOFT be liable for any lost profits, or other
special consequential or punitive damages, even if POSTALSOFT has
been advised of the possibility of such damages, or for any claim
against CUSTOMER by any other party, except with regard to an action
for infringement of intellectual property rights.
3. MODIFICATION TO SOFTWARE. In the event CUSTOMER changes or modifies the
Licensed Software in any manner, all warranties given hereunder are
canceled and same shall release POSTALSOFT of any further obligation or
liability.
F. DEFAULT
In the event CUSTOMER fails to make any payment within thirty (30) days of
the due date or breaches any other material covenant contained in this
Software License Agreement or any Addendum or Supplement hereto, the
license granted hereunder shall immediately terminate and CUSTOMER shall
return the Licensed Software and delete all copies thereof from its
libraries. In addition, CUSTOMER agrees to pay all costs, including
reasonable attorneys fees, incurred by POSTALSOFT as a result of any such
default, including costs of collection.
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G. INDEMNIFICATION
1. CUSTOMER shall indemnify and hold POSTALSOFT harmless from any costs,
expenses, or liability resulting from any claim based on CUSTOMER'S use or
possession of the licensed program, excluding claims based upon
POSTALSOFT'S negligence or patent, copyright, or similar infringement of
third-party rights. Such indemnity will survive the termination or
expiration of this Agreement.
2. If any action is instituted against CUSTOMER based upon a claim that the
Licensed Software or any component or use thereof infringes a U.S. patent
or copyright, POSTALSOFT shall, for and on behalf of CUSTOMER, defend and
indemnify such action at POSTALSOFT'S expense, provided CUSTOMER has
promptly notified POSTALSOFT in writing of such action and POSTALSOFT has
sole control of the defense and any settlement negotiations. POSTALSOFT
shall have no liability if the action arises out of any modifications to
the Licensed Software without the express written permission of POSTALSOFT;
or any use of the Licensed Software in combination with any other system,
equipment or software not furnished by POSTALSOFT or approved by POSTALSOFT
in writing.
Notwithstanding the foregoing, if a claim of such infringement is made and
appears likely to result in the entry of an injunction against the use of
the Licensed Products or portions thereof, POSTALSOFT may choose to do any
of the following: (a) modify the Licensed Product so that it is not
infringing, (b) obtain the right for the CUSTOMER to continue to use the
Licensed Products, (c) substitute non-infringing software which provides
substantially comparable functions, or (d) terminate this License Agreement
and return all License Fees paid by CUSTOMER on a pro-rata basis based on a
three (3) year useful life of the Licensed Products.
H. ASSIGNMENT OR TRANSFER
Neither this Agreement nor any rights or obligations hereunder shall be
assigned or otherwise transferred by CUSTOMER without the prior written
consent of POSTALSOFT.
I. MISCELLANEOUS
1. AMENDMENTS AND NOTICES. All Amendments, Addendums and Supplements to this
Agreement shall be in writing and signed by both parties. In no event
shall terms contained in any related purchase order or invoice be made a
part of this Agreement. All notices and claims shall be made only in
writing and shall be deemed made upon receipt. Any nonwritten notice or
claim shall be of no effect.
2. NOT BINDING UNTIL ACCEPTED. This Agreement and all Supplements thereto
shall not be binding until it is signed and accepted by POSTALSOFT at its
headquarters in the State of Wisconsin.
3. FORCE MAJORA. Neither party shall be responsible for failure to perform
caused by reason of any act of God, labor dispute, nondelivery by supplier,
fire, flood, legal action, governmental order or regulation, or any other
causes beyond its control.
4. CAPTIONS AND HEADINGS. All captions, headings, and titles contained in this
Agreement are for convenience and reference purposes only and shall not be
deemed a part of this Agreement.
5. PARTIAL INVALIDITY. If any part of this Agreement, or the application
thereof, is for any reason held or otherwise found to be unenforceable, it
shall be deemed severable and the
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validity of the remainder of this Agreement or the application of such
provisions to other circumstances shall not be affected thereby.
6. TAXES. CUSTOMER shall, in addition to the other amounts payable under this
License Agreement pay all sales and other taxes, federal, state, or
otherwise, however designated, which are levied or imposed by reason of
transactions contemplated by this License Agreement. Without limiting the
foregoing, CUSTOMER shall promptly pay to POSTALSOFT an amount equal to any
such item actually paid, or required to be collected or paid by POSTALSOFT.
7. GOVERNMENT LAW AND JURISDICTION. This Agreement shall be governed and
enforced under the laws of the State of Wisconsin. Any paragraph,
subparagraph, sentence or phrase of this Agreement that is contrary to the
laws of the State of Wisconsin and/or unenforceable shall not affect the
validity or enforceability of any other paragraph, subparagraph, sentence,
or phrase of this Agreement, and shall be modified or deleted to conform
with the applicable laws of the State of Wisconsin.
8. BENEFIT. This Agreement shall be binding upon and inure to the benefit of
POSTALSOFT'S successors and assigns.
9. U.S. GOVERNMENT RESTRICTED RIGHTS. The software and documentation are
provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the
Government is subject to restrictions as set forth in subparagraph
(c)(1)(ii) of the Rights In Technical Data and Computer Software clause at
DFARS 252.227-7018 or subparagraphs (c)(1) and (2) of the Commercial
Computer Software-Restricted Rights at 48 CFR 52-227 as applicable.
Manufacturer is POSTALSOFT, Inc. 4439 Mormon Coulee Rd., La Crosse,
Wisconsin 54601-8231.
IN WITNESS WHEREOF, the CUSTOMER aud POSTALSOFT have executed this Agreement
effective as of the date established on Page 1.
ATTEST: POSTALSOFT, INC.
BY:
---------------------------
TITLE: CONTRACTS MANAGER
------------------------
DATE: 2/14/96
-------------------------
ATTEST: Customer
BY:
---------------------------------
TITLE: SR. V.P., Systems & Technology
------------------------------
DATE: 2/26/96
-------------------------------
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ATTACHMENT A
LIMITED VOLUME LICENSE - 1 BILLION RECORD CEILING
QTY DESCRIPTION PRICE
1 PW ACE Canada Library [*]
1 PW Presort Plus 4x [*]
1 PW 1st Cl PST Plus 4x [*]
1 Piece Variable Size & Dimension [*]
TOTAL SOFTWARE COSTS [*]
The above licensed PostWare will be used in the following Operating
System Environment:
REGS
utilizing the following Central Processing Unit:
SILICON GRAPHICS INC.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
ATTACHMENT B
DESIGNATED PERFORMANCE SCHEDULE
MILESTONE APPROXIMATE DAYS FROM
CONTRACT SIGNING
Place Order for Software On Execution
Test and Install Software On Execution
Software Invoiced to CUSTOMER On Execution
Invoices shall be issued by POSTALSOFT upon delivery of the Licensed Software
and sixty (60) days prior to the renewal of any ESP service. Such invoices
shall be due and payable within thirty (30) days and thirty (30) days for the
Licensed Software and ESP service, respectively.
ATTACHMENT C
DESIGNATED EXTENDED SERVICE PROGRAM (ESP) SCHEDULE
QTY DESCRIPTION PRICE
3 yr PW ACE Canada Library [*]
3 yr PW Presort Plus 4x [*]
3 yr PW 1st Cl PST Plus 4x [*]
3 yr Piece Variable Size & Dimension [*]
3 yr Canadian Directory [*]
TOTAL ESP COSTS [*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.