Exhibit 10.5
ESCROW AGREEMENT AND INSTRUCTIONS
THIS ESCROW AGREEMENT is made by and between Business Cards Tomorrow, Inc.
("Customer") and Hence EDP ("Hence") with reference to the Customer enhanced
software system ACT2/Ingrid Area Composition & Typesetting system ("ACT 2"), and
the Agreement dated 5/6/93 ("the License/Sublicense Agreement") between Customer
and Hence.
To carry out the terms of the License/Sublicense Agreement, especially paragraph
14 thereof, Customer and Hence hereby give the following instructions to D.
Steve Cameron, Esq., 9430 Olympic Boulevard, Beverly Hills, California 90212
("Escrow Agent"):
1. Upon the execution of the License/Sublicense Agreement, Hence will deposit
in escrow with Escrow Agent the source code in machine readable form for ACT 2
and the custom software modifications, enhancements, and additions thereto for
Customer's use (the resultant package to be called ACT 2 with Customer
enhancements).
2. The source code deposited by Hence in escrow with Escrow Agent shall be
maintained by Escrow Agent for the sole benefit of Hence or its successors or
assigns, including Hence's President, Douglas W. Stout ("Stout"), provided that
Hence, its successors, assigns or Stout, is/are able to comply in all material
respects with Hence's obligations under the License/Sublicense Agreement.
3. As compensation in full for Escrow Agent's performance of all his services
hereunder, Hence shall pay to Escrow Agent a fixed fee of $100 per annum.
Except as may be determined by the Court pursuant to paragraph 4 below, all
expenses incurred by Escrow Agent in the performance of its duties hereunder
shall be for its own account, and Customer shall not be responsible therefor.
4. In the event Hence, its successors, assigns or Stout is/are unable to comply
in all material respects with Hence's obligations under the License/Sublicense
Agreement, (i.e. Hence is in default of a material provision of the
License/Sublicense Agreement or Hence has ceased doing business) Escrow Agent,
on the written demand of Customer pursuant to paragraph 14 of the
License/Sublicense Agreement shall deliver the source code to an authorized
representative of Customer. Escrow Agent shall not be or become liable for
damages or otherwise to Hence or to any person or entity as a result of its
compliance with Customer's demands pursuant to said paragraph 14.
5. Escrow Agent shall act hereunder as an escrow holder only and is not
responsible or liable in any manner whatever for the sufficiency, correctness,
genuineness or validity of the source code deposited with it in escrow, or with
respect to the rights or liabilities of any person or entity executing this
escrow agreement and instruction or the License/Sublicense Agreement.
6. Escrow Agent shall not be liable for any error or judgment or for any act
done or omitted by it in good faith, or for any mistake of fact or law except
for its own willful misconduct, and Escrow Agent shall have no duties to anyone
except Customer and Hence with respect to this escrow agreement and escrow
instructions.
7. No notices or demand to Escrow Agent shall be of any effect unless in
writing. No change of these instruction shall be of any effect unless in
writing signed by Customer and Hence, and no such writing shall be of any effect
unless given to Escrow Agent.
8. All notices and writings to be given hereunder shall be delivered in person
or forwarded by fax or ordinary mail addressed to Customer, Hence and/or Escrow
Agent at such addresses and fax numbers as may be designated by them in writing
to the other parties.
9. This escrow agreement and instructions shall be binding on the personal
representatives and successors and assigns of the parties hereto, and shall be
interpreted in accordance with the laws of the State of California.
10. Unless sooner terminated or canceled by Customer upon 30 days written
notice to Hence and Escrow Agent, the term of this escrow agreement and
instructions shall commence on the execution of the License/Sublicense Agreement
and continue for a period of 60 days after the termination, cancellation, or
expiration of the License/Sublicense Agreement.
11. This escrow agreement and instructions constitute the sole escrow agreement
and instructions between the parties and supersede all prior understandings,
writings, or other communications among the parties as to an escrow agreement
and instructions under the License/Sublicense Agreement.
Dated:
BUSINESS CARDS TOMORROW, INC.
By:
Dated: 5/6/93
Hence EDP
By:
Dated: 4/6/93
D. Steve Cameron
SOURCE LICENSE AGREEMENT
This Agreement is made by and between Hence EDP (hereinafter HENCE), 2021 Sperry
Avenue Suite 20, Ventura, California 93003, and the following licensee
(hereinafter LICENSEE).
Licensee: Business Cards Tomorrow, Inc.
Address: 3000 Northeast 30th Place, Fifth Floor, Fort Lauderdale, FL 33306
RECITALS
HENCE is the owner of all rights and interest in and to the Licensed Source
Program(s) together with all of the related materials and documentation set
forth in Schedule "A" to this Agreement, and other related material which HENCE
may from time-to-time make available. Such programs and related materials are
hereinafter collectively referred to as the "Licensed Source Program". LICENSEE
desires to acquire from HENCE the non-exclusive right to use the Licensed Source
Program on the terms set forth in this Agreement.
1. LICENSE GRANT AND LIMITATIONS.
(a) HENCE hereby grants and LICENSEE hereby accepts a non-transferable, non-
assignable, and non-exclusive right and license to use the Licensed Source
Program solely in LICENSEE's business and in that of its wholly owned
subsidiaries and divisions.
(b) This Agreement shall become effective from the date on which it is accepted
by HENCE and will remain in effect until terminated by HENCE or by LICENSEE as
set forth in this Agreement.
(c) HENCE retains title to the Licensed Source Program, and such additional
software programs and related materials and documentation which HENCE may from
time-to-time make available. HENCE retains all rights and copyrights,
trademarks, service marks, or other proprietary markings.
(d) In using the Licensed Source Program, the LICENSEE shall reproduce and
include thereon HENCE's copyright notice, trademark, service mark, or other
proprietary markings, together with any confidential legends.
2. LICENSEE'S OBLIGATIONS.
(a) LICENSEE may use the Licensed Source Program and all resultant software,
developments, improvements or modifications only in its own businesses and that
of its wholly owned subsidiaries and divisions.
(b) LICENSEE shall perform all installation, training, and maintenance with
respect to the Licensed Source Program.
(c) LICENSEE acknowledges and agrees that the Licensed Source Program, as well
as all resultant software, developments, improvements or modifications, together
with all related materials and documentation, is a trade secret that is to
remain the property of HENCE. LICENSEE shall not disclose any such information
to any third party other than to its wholly owned subsidiaries and divisions
pursuant to the terms of this Agreement. LICENSEE shall instruct all personnel
to keep such information confidential.
(d) Except for the use by Licensee and its wholly owned subsidiaries and
divisions, LICENSEE shall not copy, or permit anyone else, to copy, in whole or
in part, the Licensed Source Program, including data or program files provided
by HENCE under this Agreement without the expressed written consent of HENCE.
(e) LICENSEE agrees that any disclosure of the Licensed Source Program in
contravention of the terms of this Agreement constitutes a material breach of
this Agreement and shall terminate the license granted by this Agreement.
LICENSEE further agrees that it shall be strictly liable for all damages to
HENCE that result from any such improper disclosure of the Licensed Source
Program.
(f) LICENSEE shall not use the Licensed Source Program, or any resultant
software, developments, improvements or modifications to compete with HENCE.
Any such use shall constitute a material breach of this Agreement, and LICENSEE
shall be strictly liable for all damages to HENCE as a result.
3. CONSIDERATION FOR SOURCE LICENSE.
(a) The consideration to be paid by LICENSEE for the Licensed Source Program is
$250,000.00.
(b) LICENSEE shall pay all sales, use, excise or other taxes that may be
imposed by virtue of this Agreement or upon the use of the Licensed Source
Program.
4. REPLACEMENT COPIES.
HENCE shall send or transmit to LICENSEE, within ten working days after written
notice by LICENSEE, a replacement copy of any Licensed Source Program that is
lost or damaged.
5. WARRANTY
(a) HENCE hereby warrants its ownership and marketing rights to the Licensed
Source Program, and that the Licensed Source Program as delivered by HENCE is
capable operating in conformance with the Licensed Source Program's applicable
description.
(b) EXCEPT AS SPECIFICALLY PROVIDED IN THIS PARAGRAPH, HENCE MAKES NO
WARRANTIES EITHER EXPRESS OR IMPLIED AS TO ANY MATTER WHATSOEVER, INCLUDING,
WITHOUT LIMITATIONS, THE CONDITION OF THE LICENSED SOURCE PROGRAM, ITS
MERCHANTABILITY, OR ITS FITNESS FOR ANY PARTICULAR USE.
6. INDEMNITY
(a) If notified promptly in writing of any judicial action brought against
LICENSEE based on an allegation that LICENSEE's use of the Licensed Source
Program infringes a United States patent or copyright, any rights of a third
party or constitutes misuse or misappropriation of a trade secret
("Infringement"), HENCE will defend such action at its expense and will pay the
costs and damages awarded in any such action or the costs of settling such
action, provided that HENCE shall have the sole control of the defense of any
such action and all negotiations for its settlement or compromise, In the event
that a final injunction shall be obtained against LICENSEE's use of the Licensed
Source Program by reason of Infringement, or in HENCE's opinion be likely to
become the subject of a claim of Infringement, HENCE may at its option and
expense either: (i) secure for LICENSEE the right to continue to use the
Licensed Source Program as
contemplated hereunder; or (ii) replace or modify the licensed Program to make
its use hereunder non-infringing while being capable of performing the same
function. If neither option is reasonably available to Hence, then this
Agreement may be terminated at the option of either party hereto without further
obligation or liability.
(b) HENCE shall have no liability for any claim of infringement based on
LICENSEE's use or combination of the Licensed Source Program with products or
data of the type for which the Licensed Source Program was neither designed nor
intended.
7. LIMITATIONS OF LIABILITY
(a) HENCE SHALL NOT BE LIABLE FOR LOSS OF PROFIT, LOSS OF BUSINESS, OR OTHER
FINANCIAL LOSS WHICH MAY BE CAUSED BY, DIRECTLY OR INDIRECTLY, THE INADEQUACY OF
THE LICENSED SOURCE PROGRAM FOR ANY PURPOSE OR USE THEREOF OR BY ANY DEFECT OR
DEFICIENCY THEREIN.
(b) LICENSEE agrees that, except as provided in Paragraph 5 (Warranties),
HENCE's liability for damages, if any, shall not exceed the consideration paid
to HENCE by LICENSEE under this Agreement. No action, regardless of form,
arising out of any transaction under this Agreement may be brought by either
party more than one year after the injured party has knowledge of the occurrence
which gives rise to the cause of such action.
8. TERMINATION
(a) Basis for termination by HENCE: HENCE shall have the right without
obligation or liability to LICENSEE: (i) to terminate this Agreement if LICENSEE
fails to pay the full consideration due under this Agreement; or (ii) if
LICENSEE commits any other breach of this Agreement, and, if remediable, fails
to remedy such a breach within thirty (30) days after written notice by HENCE of
such a breach; or (iii) if LICENSEE ceases business; or (iv) if a petition in
bankruptcy is filed by or against LICENSEE; or (v) if a receiver, trustee in
bankruptcy or other similar officer is appointed to take charge of all or part
of LICENSEE's property. LICENSEE's obligation to pay the full consideration for
the Licensed Source Program shall survive the termination of this Agreement by
HENCE.
(b) Basis for Termination by LICENSEE: LICENSEE shall have the right, without
further obligation or liability to HENCE, except as specified in Paragraph 2
(LICENSEE's Obligations), and Paragraph 8(a) (Termination) to terminate this
Agreement if HENCE commits any breach of this Agreement and fails to remedy such
breach within thirty (30) days after written notice by LICENSEE of such breach.
(c) Disposition of Licensed Source Program on Termination: LICENSEE's
obligation to pay the full consideration shall survive the termination of this
Agreement. Upon the expiration or termination of this Agreement for any reason,
the license and all other rights granted hereunder to LICENSEE shall immediately
cease, and LICENSEE shall immediately: (I) return the Licensed Source Program to
HENCE together with all documentation, notes and other material respecting the
License Program; (ii) purge all copies of the Licensed Source Program or any
portion thereof from all systems and from any computer storage medium or device
on which LICENSEE has placed or permitted others to place the Licensed Source
Program; and (iii) give HENCE a written certification that through its best
efforts and to the best of its knowledge, LICENSEE has complied with all of its
obligations under Paragraph 8(c).
9. GENERAL PROVISIONS
(a) Unless otherwise provided by this Agreement, any notice required or
permitted by this Agreement to either party shall be deemed to have been duly
given if in writing and delivered personally, sent via facsimile, or mailed by
first-class mail, postage prepaid and addressed to HENCE and LICENSEE at the
address contained in this Agreement or at such other addresses as HENCE and
LICENSEE may give from time to time.
(b) LICENSEE shall not assign this Agreement or its rights hereunder without the
prior written consent of HENCE. Any attempt to make such an assignment without
HENCE's consent shall be void.
(c) HENCE and LICENSEE agree that this Agreement shall be modified only by a
written agreement duly executed by persons authorized to execute agreements on
their behalf.
(d) HENCE and LICENSEE agree that no failure to exercise, and no delay in
exercising any right, power, or privilege under this Agreement on the part of
either party shall operate as a waiver of any right, power, or privilege
hereunder. HENCE and LICENSEE further agree that no single or partial non
exercise of any right, power, or privilege under this Agreement shall preclude
further exercise thereof.
(e) If any legal action or proceeding is necessary to enforce the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees
in addition to any other relief to which that party may be entitled. This
provision shall be construed as applicable to the entire Agreement.
(f) If any or part of this Agreement is found or deemed by a court of competent
jurisdiction to be invalid or unenforceable, that part shall be severable from
the remainder of this Agreement and shall not cause the invalidity of
unenforceability of the remainder of this Agreement.
(g) This Agreement shall be deemed to have been made in, and shall be construed
pursuant to, the laws of the State of California.
(h) HENCE and LICENSEE acknowledge and agree that this Agreement is the complete
and exclusive statement of the mutual understanding of the parties and that it
supersedes and cancels all previous written and oral agreements and
communication relating to the subject matter of this Agreement.
Accepted By:
HENCE
Name: Douglas W. Stout
Title: President
Date: 5/6/93
LICENSEE
Name: Kurt Nielsen
Title: VP R & D
Date: 4/15/93
EXHIBIT B
PROGRAM LICENSE AGREEMENT
PERPETUAL LICENSE
This Agreement is made by and between Hence EDP (hereinafter HENCE), 2021 Sperry
Avenue Suite 20, Ventura, California 93003, and the following licensee
(hereinafter CUSTOMER).
Licensee: Business Cards Tomorrow, Inc.
Address: 3000 Northeast 30th Place, Fifth Floor, Fort Lauderdale, FL 33306
1. PROGRAM LICENSE
(a) HENCE hereby grants and Customer hereby accepts a perpetual non-
transferable, non-assignable, and non-exclusive right and license to use the
Licensed Program(s) together with all of the related materials and documentation
set forth in Schedule "A" to this Agreement, and other related materials which
HENCE may from time-to-time make available. Such programs and related materials
are hereinafter collectively referred to as the licensed Program.
(b) The use of the Licensed Program shall be limited to installation and use on
a single Central Processing Unit (CPU) designated by model, serial number and
location, or a Local Area Network of CPU's (LAN) designated by model, serial
number (of network) and location, as set forth in Schedule "B" to this
Agreement. If the Licensed Program will be used on more than one CPU or LAN, an
additional license will be required for each CPU or LAN. The CPU or LAN is
hereinafter called SYSTEM.
(c) CUSTOMER shall have the right to transfer the location of the SYSTEM or
transfer the Licensed Program to a different System from time-to-time, including
temporary transfers due to malfunctions of the designated SYSTEM, provided,
however, that prior written notice shall be furnished to HENCE for any permanent
transfer and that the Licensed Program shall not be installed and used on more
than one SYSTEM at a time.
(d) The rights and license granted CUSTOMER to use the Licensed Program are
restricted solely and exclusively to the CUSTOMER (or a declared subsidiary or
affiliate of CUSTOMER and identified to HENCE as a subsidiary or affiliate in
Schedule "B"), and may not be assigned, sub-licensed or subleased or otherwise
made available for use by third parties. For purposes of this Agreement, use is
defined as copying any portion of the Licensed Program's instructions or data
from storage units or media into a CPU for processing.
(e) CUSTOMER shall have no right to assign this Agreement without prior written
consent of HENCE, except that CUSTOMER shall have the right upon prior written
notice to HENCE to assign without such consent to any company succeeding to all
or substantially all of CUSTOMER's business and assets, provided that such
assignee shall sign an agreement with HENCE acknowledging said assignment and
the acceptance of all terms, conditions, and obligations of this Agreement as
imposed on CUSTOMER herein. In the event of such assignment, CUSTOMER's rights
under this Agreement shall be terminated, and CUSTOMER's obligations under this
Agreement shall be discharged, except for the protection, security and non-
disclosure obligations assumed by CUSTOMER on signing this Agreement.
2. TERM
This Agreement is effective from the date on which it is accepted by HENCE and
will remain in effect until terminated by HENCE or by CUSTOMER as set forth in
this Agreement.
3. CONSIDERATION
The consideration for this Agreement is $40,000.00, plus installation fees
outlined in Schedule E, payable as follows:
(a) The sum of $20,000.00 in lawful money of the United States of signing of
this Agreement by CUSTOMER.
(b) The sum of $20,000.00 in lawful money of the United States 30 days after
installation and training.
(c) Fees for optional installation and training (Schedule E) will be separately
invoiced and will be payable 30 days after installation and training.
4. INSTALLATION AND TRAINING
(a) The Licensed Program will be delivered 30 to 60 days after execution of
this Agreement by HENCE. If an INSTALLATION and TRAINING option are outlined in
Schedule E, HENCE will install the Licensed Program on CUSTOMER's designated
SYSTEM, and perform any necessary modifications required to permit the full use
thereof by CUSTOMER in accordance with that option. CUSTOMER will provide all
necessary computer time.
(b) INSTALLATION is scheduled for May 1, 1993 and will take place then unless
both parties agree to a difference schedule prior to that date.
(c) After installation, HENCE will conduct training at the CUSTOMER site, on
the operation and use of the Licensed Program.
5. PROGRAMMING SERVICES
(a) HENCE shall, at no cost to CUSTOMER, correct Licensed Program errors
detected by CUSTOMER during the period ended 180 days after the completion of
the installation, provided that the error can be recreated with the latest
release of the Licensed Program.
(b) If HENCE is called upon by CUSTOMER to correct an error, and such error is
found to be caused by CUSTOMER's misuse of the Licensed Program, CUSTOMER
supplied data, SYSTEM or operator failure of any other cause not inherent in the
Licensed Program, HENCE reserves the right to charge CUSTOMER for such service
on a time and materials basis, at HENCE's standard rates then in effect.
6. PERMISSION TO COPY OR MODIFY LICENSED PROGRAM
(a) CUSTOMER shall not copy, or permit anyone else to copy, in whole or part,
the Licensed Program, including data or program files provided by HENCE under
this Agreement without the express written consent of HENCE.
(b) CUSTOMER agrees that any disclosure of the Licensed Program to a third party
constitutes a material breach of this Agreement and shall terminate the license
granted by this agreement in addition to the other methods of termination set
forth in Paragraph 12 of this Agreement.
(c) CUSTOMER further agrees that it shall be strictly liable for all damages to
HENCE that result from any disclosure of the Licensed Program to any third
party.
(d) CUSTOMER may not modify any portion of the Licensed Program, without express
written consent of HENCE.
7. REPLACEMENT COPIES
HENCE shall send or transmit to CUSTOMER, within 3 working days after notice by
CUSTOMER, a replacement copy of any Licensed Program that is lost or damaged.
The cost for such replacement will be limited to the costs of the storage media,
computer time and deliver or telephone line time.
8. PROTECTION AND SECURITY
(a) The ideas and expressions thereof contained in the Licensed Program are
acknowledged to be proprietary information belonging to HENCE. The Licensed
Program is provided by HENCE to CUSTOMER in confidence and solely for the
private use of CUSTOMER as expressly provided herein.
(b) CUSTOMER shall not provide, disclose, or permit to be disclosed all or any
part of the Licensed Program except as necessary for the authorized use thereof.
(c) CUSTOMER shall adopt and follow reasonable procedures to maintain the
confidentiality of the Licensed Program, and agrees to take appropriate action,
by agreement or otherwise, with its employees or other persons permitted access
to the Licensed Program, and to satisfy its obligations under this Agreement
particularly with respect to use, copying modification, protection and security
of the Licensed Program.
(d) CUSTOMER acknowledges that HENCE retains title of the Licensed Program and
that HENCE shall be free to license the Licensed Program to any other person,
firm, corporation or governmental entity at any time for any purpose whatsoever.
9. WARRANTY
(a) HENCE hereby warrants its ownership and marketing rights to the Licensed
Program, and that the Licensed Program as delivered by HENCE, if properly
installed in accordance with HENCE's instructions, is capable operating in
conformance with the Licensed Program's applicable description as set forth
during training and in Schedule "C" (Options and Enhancements).
(b) EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION, HENCE MAKES NO WARRANTIES
EITHER EXPRESS OR IMPLIED AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT
LIMITATIONS, THE CONDITION OF THE LICENSED PROGRAM, ITS MERCHANTABILITY, OR ITS
FITNESS FOR ANY PARTICULAR USE.
10. INDEMNITY
(a) If notified promptly in writing of any judicial action brought against
CUSTOMER based on an allegation that CUSTOMER's use of the Licensed Program
infringes a United States patent or copyright, any rights of a third party or
constitutes misuse or misappropriation of a trade secret ("Infringement"), HENCE
will defend such action at its expense, will keep customer advised of the
proceedings and will pay the costs and damages awarded in any such action or the
costs of settling such action, provided that HENCE shall have the sole control
of the defense of any such action and all negotiations for its settlement or
compromise. In the event that a final injunction shall be obtained against
CUSTOMER's use of the Licensed Program by reason of Infringement, or in HENCE's
opinion be likely to become the subject of a claim of Infringement, HENCE may at
its option and expense either: (i) secure for CUSTOMER the right to continue to
use the Licensed Program as contemplated hereunder; or (ii) replace or modify
the licensed Program to make its use hereunder non-infringing while being
capable of performing the same function. If neither option is reasonably
available to Hence, then this Agreement may be terminated at the option of
either party hereto without further obligation or liability other than as
provided in Section 12 (Termination) hereof except that HENCE shall promptly
refund to CUSTOMER that portion of the License fee payable hereunder, obtained
by multiplying said price by a fraction, the denominator of which is 36 months,
and the numerator of which is 36 months less the number of full months since
execution of this Agreement by HENCE.
(b) Any modification or attempted modification of the Licensed Program by
CUSTOMER or any failure by CUSTOMER to implement any improvements or updates to
the Licensed Program as supplied by HENCE shall void this indemnity unless
CUSTOMER has obtained prior written authorization from HENCE permitting such
modification, attempted modification or failure to implement. HENCE shall have
no liability for any claim of infringement based on CUSTOMER's use or
combination of the Licensed Program with products or data of the type for which
the Licensed Program was neither designed nor intended.
11. LIMITATIONS OF LIABILITY
(a) HENCE SHALL NOT BE LIABLE OR LOSS OF PROFIT, LOSS OF BUSINESS, OR OTHER
FINANCIAL LOSS WHICH MAY BE CAUSED BY, DIRECTLY OR INDIRECTLY, THE INADEQUACY OF
THE LICENSED PROGRAM FOR ANY PURPOSE OR USE THEREOF OR BY ANY DEFECT OR
DEFICIENCY THEREIN.
(b) CUSTOMER agrees that, except as provided in Paragraph 10 (Indemnity),
HENCE's liability for damages, if any, shall not exceed the charges paid to
HENCE by CUSTOMER for use of the Licensed Program under this Agreement. No
action, regardless of form, arising out of any transaction under this Agreement
may be brought by either party more than one year after written notification by
the injured party that he has knowledge of the occurrence which gives rise to
the cause of such action.
12. TERMINATION
(a) Basis for termination by HENCE. HENCE shall have the right without
obligation or liability to CUSTOMER: (i) to terminate this Agreement if CUSTOMER
is delinquent in making payments of any sum due under this Agreement and
continues to be delinquent for a period of sixty (60) days after the last day
payment is due, provided, however, a written notice is given to CUSTOMER by
HENCE of the expiration date of the aforementioned sixty (60) day delinquency
period at least ten (10) days prior to the occurrence of said expiration date;
or (ii) to terminate this Agreement if CUSTOMER commits any other breach of this
Agreement and fails to remedy such a breach within thirty (30) days after
written notice by HENCE of such a breach. CUSTOMER'S obligation to pay all
accrued charges shall survive the termination of this Agreement. HENCE's
termination of this Agreement and repossession of the Licensed Program shall be
without prejudice to any other remedies that HENCE may lawfully have.
(b) Basis for Termination by CUSTOMER. CUSTOMER shall have the right, without
further obligation or liability to HENCE, except as specified in Section 8
(Protection and Security), and 12(c) (Disposition of Licensed Program on
Termination) to terminate this Agreement if HENCE commits any breach of this
Agreement and fails to remedy such breach within thirty (30) days after written
notice by CUSTOMER of such breach, in which event, HENCE shall reimburse
CUSTOMER in the same manner as for the removal of the Licensed Program due to
infringement under Section 10 (Indemnity).
(c) Disposition of Licensed Program on Termination. Upon the expiration or
termination of this Agreement for any reason, the license and all other rights
granted hereunder to CUSTOMER shall immediately cease, and CUSTOMER shall
immediately: (i) return the Licensed Program to HENCE together with all
documentation, notes and other material respecting the License Program; (ii)
purge all copies of the Licensed Program or any portion thereof from all systems
and from any computer storage medium or device on which CUSTOMER has placed or
permitted others to place the Licensed Program; and (iii) give HENCE a written
certification that through its best efforts and to the best of its knowledge,
CUSTOMER has complied with all of its obligations under Section 12(c).
13. SALES AND USE TAXES
There shall be added to the charges applicable under this Agreement amounts
equal to any taxes, however designated, levied or based on such charges or upon
this Agreement or services rendered in connection with any of the foregoing, or
any taxes or amounts in lieu thereof paid or payable by HENCE in respect of the
foregoing, exclusive of ordinary personal property taxes assessed against or
payable by HENCE and taxes based upon net income.
14. SUBSEQUENT MAINTENANCE
(a) HENCE agrees to provide continuing maintenance and enhancements for an
hourly fee based on HENCE's rates which are outlined in Section "D" (Maintenance
Fees) of this License. HENCE reserves the right to change this fee or rate from
time to time and agrees to give CUSTOMER written notification 90 days before
such an increase.
(b) Response time for maintenance will depend on HENCE's workload of other
clients with similar requirements, but the highest priority will be given to a
situation where CUSTOMER is inoperative because the LICENSED PROGRAM is failing.
15. GENERAL PROVISIONS
(a) This Agreement and all matters relating to it or obligations arising in
respect to it shall be governed by the laws by the State of California. Venue
for all disputes arising from this Agreement shall be Los Angeles, California.
(b) Any waiver of HENCE of any particular breach hereunder by CUSTOMER shall
not constitute a continuing waiver or a waiver of any other breach or default,
and any waiver of CUSTOMER of any particular breach hereunder by HENCE shall not
constitute a continuing waiver or a waiver of any other breach or default.
(c) Any provisions in this Agreement that may be invalid or illegal in any
State shall fall by itself in that State, but shall in no way be held to
invalidate any of the remaining provisions otherwise not invalid or illegal.
(d) This Agreement expresses the entire understanding of the parties with
reference to the subject matter hereof, and no representations or agreements
modifying or supplementing the terms of the Agreement shall be valid unless in
writing signed by a person authorized to sign agreements on behalf of each
party.
(e) The term "this Agreement" as used herein includes any future written
Agreements, modifications, amendments, or supplements made in accordance
herewith.
(f) The foregoing terms and conditions shall prevail, regardless of any
variations in the terms and conditions of any order submitted by CUSTOMER.
(g) If any legal action or proceeding is necessary to enforce the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees
in addition to any other relief to which that party may be entitled. This
provision shall be construed as applicable to the entire Agreement.
Accepted By:
HENCE
Name: Douglas W. Stout
Title: President
Date: 5/6/93
LICENSEE
Name: Kurt Nielsen
Title: VP R & D
Date: 4/15/93
SCHEDULE A
LICENSED PROGRAM
The Licensed Programs and related materials to be provided by HENCE to CUSTOMER
under this Agreement are as follows: Standard ACT 2 System, including all
software outlined by the Hence EDP ACT 2 User's Manual.
SCHEDULE B
DESIGNATED SYSTEM FOR LICENSED PROGRAM
1. NAME OF INSTALLATION:
2. LOCATION:
3. SYSTEM MANUFACTURER, TYPE, AND MODEL NUMBER: (To be determined)
4. SYSTEM SERIAL NUMBER: (To be determined)
5. OPERATING SYSTEM: (Novell NetWare, version to be determined)
SCHEDULE C
OPTIONS & ENHANCEMENTS
Standard ACT 2 System, any additional options or enhancements will be determined
and priced during integration.
SCHEDULE D
MAINTENANCE FEES
SCHEDULE E
INSTALLATION & TRAINING
Installation and training in accordance with preceding Agreement between Hence
EDP and BCT.
EXHIBIT C