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Confidential information indicated by [*] is information omitted pursuant to
application for confidential treatment and is filed separately with the
Commission.
EXHIBIT 10.87
Focus Soft, Inc.
MASTER SOFTWARE LICENSE (#F-122)
This Master Software License Agreement (this "Agreement") is made as of the last
date written below, by and between FocusSoft Inc., a corporation having a
principal place of business at 304 Whittington Parkway Louisville, Kentucky
40222, USA ("FocusSoft") and Medicis, a corporation having a place of business
at 4343 East Camelback Rd, Phoenix, AZ 85018 ("CUSTOMER").
GENERAL TERMS AND CONDITIONS
1. LICENSE GRANTED.
Subject to all of the limitations and conditions contained in this Agreement,
FocusSoft hereby grants to CUSTOMER a non-transferable and non-exclusive license
to (i) use the software system(s) (the "Software System(s)") described in the
schedule(s) attached hereto (the "Software Schedule(s)") and any corrections,
enhancements, updates and new versions provided by FocusSoft to CUSTOMER under
this Agreement, within North America, in the ordinary business activities of
CUSTOMER for its internal operations only, on the production computers specified
in the Software Schedule(s) at the locations specified in the Software
Schedule(s), and (ii) use the system documentation provided by Focus Soft to
CUSTOMER in connection with CUSTOMER's permitted use of the Software System(s).
This license does not include the right to use the Software System(s) or the
system documentation to process the data of any third parties, whether any such
third parties are related to CUSTOMER or not.
2. TERM.
This Agreement shall remain in effect until terminated pursuant to the
provisions of this Agreement.
3. PAYMENT.
For each Software System, CUSTOMER shall pay FocusSoft or its agent or designee,
license and service fees in accordance with the payment terms specified in the
Software Schedule(s). CUSTOMER shall pay FocusSoft, within thirty (30) days of
billing by FocusSoft, all charges for travel and out-of-pocket expenses incurred
by FocusSoft, in connection with training, maintenance, implementation and
support for the Software Systems(s) and, if CUSTOMER elects to continue
maintenance for the Software Systems(s), for ongoing maintenance fees.
4. TAXES.
CUSTOMER shall pay all taxes or duties, fees and governmental charges, however
designated, (including personal property taxes, sales taxes, use taxes and
customs duties), but not including any income or corporate excise taxes accessed
against Focus Soft, arising from, or based upon, the Software System(s) licensed
hereunder, the license fee for the Software System(s), other amounts payable
under this Agreement, any services provided under this Agreement or the
operation and use of the Software Systems(s).
5. DELIVERY.
Within thirty (30) days after the date of this Agreement, or such later date
specified in a Software Schedule, FocusSoft will deliver to CUSTOMER the
Software System(s) and all related documentation.
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6. MODIFICATIONS.
CUSTOMER may modify the Software Systems(s) only in order to adapt the Software
Systems(s) for CUSTOMER's permitted use hereunder, provided, however, FocusSoft
maintenance and support and warranty obligations set forth in Paragraphs 10 and
11 shall apply only to the unmodified Software System(s) and to corrections,
enhancements, updates and new versions provided by FocusSoft relating thereto.
If modifications are made by CUSTOMER that result in Focus Soft being relieved
of its obligation to provide maintenance and support services, Focus Soft shall
not be required to reimburse CUSTOMER for any prepaid maintenance and support.
7. WARRANTY OF TITLE.
FocusSoft represents and warrants that it is the lawful owner or licensee of the
Software System(s) and has full legal power and authority to license the
Software Systems(s) to CUSTOMER as provided in this Agreement.
8. OWNERSHIP, NON-DISCLOSURE AND COPIES.
(a) CUSTOMER acknowledges that the Software System(s); all source code, object
code and algorithms relating thereto; all user interface screens generated by
the Software System(s); all updates, upgrades modifications and enhancements
thereto, provided by FocusSoft, client or third party, any copies of the
foregoing, in whole or in part; as well as all copyright, patent, trade secret
and other proprietary rights therein, are and shall remain the sole and
exclusive confidential property of FocusSoft or Focus Soft licensor. CUSTOMER
AGREES THAT IT WILL NOT DISCLOSE OR OTHERWISE MAKE AVAILABLE TO THIRD PARTIES
THE SOFTWARE SYSTEMS(S) EXCEPT WHEN SUCH DISCLOSURE IS NECESSARY TO THE
CUSTOMER's PERMITTED USE HEREUNDER OF THE SOFTWARE SYSTEMS(S) AND SUCH THIRD
PARTY AGREES TO BE BOUND BY THE TERMS CONTAINED IN THIS PARAGRAPH 8. CUSTOMER
shall hold as FocusSoft confidential property, and shall further safeguard
against disclosure, all copies of the Software System(s) and all other
information furnished by FocusSoft to CUSTOMER in connection with the Software
System(s), including, but not limited to, all source and object code, all system
documentation relating to the Software System(s), and the terms and conditions
of this Agreement, in the same manner as it safeguards its own confidential
property against disclosure, provided that such safeguards are at least equal to
industry standards, and shall take such steps as are reasonably necessary to
ensure that the provisions of this Agreement relating to confidentiality and
non-disclosure are not violated by any employee, agent or other representative
of CUSTOMER. CUSTOMER shall not decompile, disassemble, or reverse engineer any
portion of the Software System(s). CUSTOMER shall indemnify and save FocusSoft
harmless from any and all damages arising out of or in connection with a breach
of this Paragraph 8, including but not limited to the legal fees and
disbursements of FocusSoft incurred in connection with any breach or threatened
breach of the Paragraph 8. CUSTOMER agrees that if it learns of any breach of
the non-disclosure provisions contained herein, it shall, within ten (10)
business days of learning of any such breach, notify FocusSoft in writing of the
breach, specifying fully the nature and manner of the breach. CUSTOMER further
agrees to cooperate fully with FocusSoft in any investigations and legal actions
relating to such breach, including legal actions for injunctive or other
equitable relief, that FocusSoft may take in order to eliminate and cure the
breach.
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(b) CUSTOMER may not copy the Software Systems(s) without the prior written
permission of FocusSoft except (i) to make a copy of any program which is
required as an essential step in its utilization or (ii) to make an archival or
back-up copy of the Software System(s) and related documentation. CUSTOMER may
copy the system documentation provided by FocusSoft to CUSTOMER in connection
with CUSTOMER's permitted use of the Software System(s). CUSTOMER shall not
alter or remove any FocusSoft or other copyright notice from the Software
System(s), the system documentation or any permitted copied thereof.
(c) The Source Code Escrow Package may be released from escrow to CUSTOMER, upon
the occurrence of one or more of the following "Escrow Release Events", defined
as (i) if LICENSOR becomes insolvent or admits insolvency or admits a general
inability to pay its debts as they become due; (ii) if LICENSOR files a petition
for protection under the Bankruptcy Code of the United States, or an involuntary
petition in bankruptcy is filed against LICENSOR and is not dismissed with sixty
(60) days thereafter. The current Source Code Escrow holder is Howard S. Strum,
Attorney. Any change in holder of the account will be forwarded to CUSTOMER.
9. USE/CHANGE OF LOCATION.
CUSTOMER may redesignate the location of the production computers on which the
Software System(s) may be used by giving advance written notice to FocusSoft
stating the reason(s) for the proposed change of location. The Software
Systems(s) may also be used on a back-up computer located at the designated
location if the designated computer is inoperative because of (i) a malfunction,
(ii) the performance of preventive maintenance or (iii) engineering changes to
the designated computer. Any such computer shall be located within North
America.
10. MAINTENANCE AND SUPPORT.
An initial period of maintenance for the Software Systems(s) as provided in the
Software Schedule(s) is included in the license fee.
11. WARRANTY.
(a) FocusSoft warrants that, as long as CUSTOMER is on active maintenance for
the Software System(s), the Software System(s) will operate in substantial
conformity with the Functional Documentation supplied by FocusSoft within the
Software System(s) when used in strict compliance therewith. ("Functional
Documentation" is the "help text" and/or the "how to" text provided within the
Software System(s).) This warranty is contingent upon (a) CUSTOMER's
installation of all corrections, enhancements, updates and new versions provided
by FocusSoft to CUSTOMER under this Agreement and (b) the absence of damage or
abuse to the Software System(s). Notwithstanding the foregoing, CUSTOMER
acknowledges that since the Software System(s) is complex and, therefore, may
have defects, CUSTOMER's sole and exclusive remedy for any such defects shall be
as follows: If the Software System(s) fails to perform as warranted, FocusSoft
shall, within a reasonable period of time, provide all reasonable programming
services to correct programming errors in the Software System(s) or, at its
option, replace the Software System(s).
(b) FOCUSSOFT MAKES NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, WITH RESPECT
TO THE SOFTWARE SYSTEM(S), ITS (THEIR) MERCHANTABILITY OR ITS (THEIR) FITNESS
FOR ANY PARTICULAR PURPOSE. FOCUSSOFT SHALL NOT BE LIABLE IN ANY EVENT FOR LOSS
OF PROFITS, BUSINESS, USE OR DATA NOR FOR INTERRUPTION OF BUSINESS NOR FOR ANY
OTHER DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY
DEFECT IN THE SOFTWARE SYSTEM(S) OR FROM ITS (THEIR) USE. THE LIMITATIONS ON
FOCUSSOFT LIABILITY STATED HEREIN SHALL NOT BE WAIVED OR ALTERED ON ACCOUNT OF
FOCUSSOFT PROVIDING OR RENDERING OF TECHNICAL, PROGRAMMING OR OTHER ADVICE OR
SERVICE IN CONNECTION WITH THE SOFTWARE SYSTEM(S). SHOULD ANY OF THE FOREGOING
DISCLAIMERS BE HELD INVALID, IN WHOLE OR IN PART, FOR ANY REASON, IN NO EVENT
SHALL FOCUSSOFT BE LIABLE FOR DAMAGES IN EXCESS OF THE LICENSE FEE(S) ACTUALLY
PAID BY CUSTOMER TO FOCUSSOFT.
12. TRANSFER.
CUSTOMER shall not, voluntarily, sublicense, sell, assign, give or otherwise
transfer the license granted hereunder, or any copies of the Software System(s)
or any other information furnished by FocusSoft to CUSTOMER, to any person or
entity or permit any person or entity other than CUSTOMER to use the Software
System(s).
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13. TERMINATION
(a) FocusSoft may terminate this Agreement and the license to use the Software
System(s) granted hereunder by giving written notice to CUSTOMER if CUSTOMER (i)
fails to pay any amount due hereunder within thirty (30) days of the date such
amount is due, (ii) breaches any of its obligations under Paragraphs 8 or 12;
(iii) fails to perform any other material obligation hereunder if such failure
has not been cured within thirty (30) days after FocusSoft has given CUSTOMER
notice of such failure; or (iv) causes or permits the winding up or liquidation
of its affairs, voluntarily, or by order of a court adjudging CUSTOMER bankrupt
or insolvent or approving as properly filed a petition seeking reorganization of
CUSTOMER.
(b) Upon any termination of this Agreement, CUSTOMER shall cease to use the
Software System(s) and shall return to FocusSoft the Software System(s) and all
copies thereof and all proprietary and confidential property of FocusSoft,
including, without limitation, all source code, object code and system
documentation. CUSTOMER shall expunge all copies of the source code or object
code from its designated single production computer or any other computer
containing such codes and shall provide a certificate of an officer of CUSTOMER
stating respect to CUSTOMER's failure to comply with the provisions of this
Agreement. CUSTOMER agrees that Paragraphs 4, 8, 11, 12, 13 and 15 of this
Agreement shall survive any termination of this Agreement and shall remain in
full force and effect.
14. ARBITRATION
Any dispute relating to the interpretation or performance of this Agreement
shall be resolved through binding arbitration conducted in Louisville, Kentucky,
in accordance with the then-existing rules of the American Arbitration
Association in Accordance with Kentucky law, and judgment upon any arbitration
award may be entered by the state or federal court of appropriate jurisdiction.
15. GENERAL.
This Agreement, which shall include all schedules and addenda attached hereto,
may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument. This
Agreement shall be governed by and interpreted under the laws of the
Commonwealth of Kentucky. This Agreement sets forth the entire understanding
between the parties, is binding upon and inures to the benefit of the parties
hereto and their respective successors and may be amended only by a written
instrument executed by both an officer of FocusSoft and by CUSTOMER. If two or
more entities are named herein as CUSTOMER, their obligations shall be joint and
several. This Agreement supersedes any and all prior and contemporaneous
conversations, understandings and agreements between the parties, including any
request for proposal or similar document and any responses thereto, all of which
are of no further force and effect, and supersedes the terms of any and all
purchase orders or invoices. Neither the failure nor any delay on the part of
either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof. No claim or action, regardless of
form, arising out of this Agreement may be brought by either party more than one
(1) year after the cause of action has arisen.
EACH PARTY HAS CAUSED THIS AGREEMENT TO BE EXECUTED BY ITS DULY AUTHORIZED
OFFICIAL(S).
FocusSoft, Inc. Medicis Corporation
By: /s/ John V. Lococo By: /s/ Mark A. Prygocki Sr.
Name: John V. Lococo Name: Mark A. Prygocki Sr.
Title: President Title: Chief Financial Officer
Date: April 2, 1997 Date: March 31, 1997
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MEDICIS
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SOFTWARE PROPOSAL
MARCH 31, 1997
SCHEDULE A
CONFIDENTIAL
MILLENIA PROPOSAL
- -----------------
MILLENIA SOFTWARE
- -----------------
Customer Service, Purchasing, Inventory, Manufacturing, Scheduler II, Quality
Control, Receiving, Shipping
Proposal for [*] users
FocusSoft Millenia software ([*] users) $[*]
Additional users [*] are [*] each ([*] users) ([*] users [*]) $[*]
users [*] are $[*] each ([*] users [*]) $[*]
Millenia Tool Kit (front end source code) $[*]
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TOTAL FOR FOCUSSOFT MILLENIA SOFTWARE $[*]
([*] price for [*] users and Millenia Tool Kit is [*]. The [*]
of [*] which provides [*] users at [*], is only valid if the Millenia
Tool Kit is purchased and the Software License Agreement is signed by
March 31st, 1997.)
MILLENIA SERVICES (ESTIMATE)
- ----------------------------
Millenia Training [*] hours at $[*] hour $[*]
Millenia Project Management [*] hours at $[*] hour $[*]
Millenia setup [*] hours at $[*] hour $[*]
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TOTAL FOCUSSOFT SERVICES (ESTIMATE) $[*]
TOTAL FOR FOCUSSOFT SOLUTION (ESTIMATE) $150,500
- ---------------------------------------
OPTIONAL
- --------
Source Code Escrow Package $[*]
- - [*] months period of maintenance on FocusSoft software commencing on the date
of delivery of the software is included in the license fee. After the first
[*] month period the current annual software maintenance price is [*] percent
([*]) of the software price.
- - Price quote includes FocusSoft's standard interface between Millenia and
Platinum SQL Server software. An updated interface from FocusSoft will be
provided within [*] months of Platinum issuing a new release. The updated
interface is included in the [*] maintenance fee.
- - Price quote is valid under the condition that the Software License Agreement
is signed by March 31, 1997.
- - Travel expenses not included.
- - Payment terms: [*] with Agreement, [*] net 30 days from Agreement, [*] by
June 30, 1997.
[FocusSoft, Inc. Logo]
*[Confidential Information Extracted]