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EXHIBIT 2.2
SOFTWARE LICENSE AGREEMENT
This Software License Agreement ("Agreement") is entered into as of
June 4, 1998 ("Effective Date") by and between Comshare, Incorporated, a
Michigan corporation, having its principal place of business at 555 Briarwood
Circle, Ann Arbor, Michigan 48108 ("Licensor"), and JDA Software, Inc., an
Arizona corporation having its principal place of business at 11811 N. Tatum
Blvd., Suite 2000, Phoenix, Arizona 85028 ("Licensee").
WHEREAS, Licensor has sold and conveyed certain software products and
other assets of Licensor to Licensee under a separate Asset Purchase Agreement
dated June 4, 1998 (the "Asset Purchase Agreement");
WHEREAS, Licensor owns or otherwise has the rights to certain software
which is useful with and adds value to, the software products sold to Licensee;
and
WHEREAS, Licensee desires to obtain the right to use, modify,
reproduce, distribute, publicly display and publicly perform such software as
part of Licensee's normal course of business and pursuant to the terms and
conditions of this Agreement, and Licensor is willing to grant such license.
NOW, THEREFORE, in consideration of the foregoing and the covenants set
forth below, the parties agree as follows:
1. DEFINITIONS.
1.1 "AIM Software" shall mean the computer software programs identified
in Section 1 of Schedule A attached hereto, in object code and source code form,
programmer's comments, any related documentation, including user documentation
provided with such software, and any error corrections, updates or upgrades
thereto made available to Licensee under this Agreement.
1.2 "Decision Software" shall mean the computer software programs
identified in Section 2 of Schedule A attached hereto, in object code and source
code form, programmer's comments, any related documentation, including user
documentation provided with such software, and any error corrections, updates or
upgrades thereto made available to Licensee under this Agreement.
1.3 "Supporting Software" shall mean the computer software programs
identified in Section 3 of Schedule A attached hereto, in object code form, any
related documentation, including user documentation provided with such software,
and any error corrections, updates or upgrades thereto made available to
Licensee under this Agreement.
1.4 "Licensed Software" shall mean collectively, AIM Software, Decision
Software and Supporting Software.
1.5 "Acquired Products" shall mean the computer software programs
acquired by Licensee pursuant to, and listed on Schedule 1.55 of the Asset
Purchase Agreement.
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2. GRANT OF RIGHTS.
2.1 AIM Software License. Licensor hereby grants to Licensee a
royalty-free, fully paid-up, non-exclusive, irrevocable, perpetual, worldwide
unrestricted license to execute, modify, reproduce, publicly display, publicly
perform and prepare derivative works of the AIM Software.
2.2 Decision Software License. Licensor hereby grants to Licensee a
royalty-free fully paid-up, non-exclusive, irrevocable, perpetual, worldwide
license to execute, modify, reproduce, publicly display, publicly perform and
prepare derivative works of the Decision Software. For two years from the
Effective Date of this Agreement, Licensee's rights under this Section 2.2 shall
be restricted to use (i) by customers in the retail market only in conjunction
with product(s) owned by Licensee (including, but not limited to, the Acquired
Products); or (ii) by customers in the consumer packaged goods industry in
conjunction with Boost Sales and Margin Planning. After such time period,
Licensee's use of the Decision Software shall be unrestricted.
2.3 Supporting Software License. Licensor hereby grants to Licensee a
royalty-free, fully paid-up, non-exclusive, irrevocable, perpetual, worldwide
license to use, modify, execute, reproduce, publicly display and public perform
the Supporting Software for the sole purpose of allowing Licensee to utilize,
commercialize, market and license the Acquired Products to end users.
2.4 Distribution of Software. Licensor hereby grants to Licensee the
right to sell, market, exploit and distribute the Licensed Software, including
any derivative works created under the licenses granted in Section 2.1 ("AIM
Software License"), Section 2.2 ("Decision Software License") and Section 2.3
("Supporting Software License"), directly through any means or media now known
or hereafter invented indirectly or through subdistributors, resellers, other
third party distributors and Licensee's usual channels of distribution, subject
to the restrictions set forth in Section 2.2 for the Decision Software and any
applicable restrictions set forth in the Transition Distribution Agreement
attached as Exhibit A-4 to the Asset Purchase Agreement.
2.5 Delivery. Licensor agrees to deliver the Licensed Software to
Licensee on the Effective Date by making it available to Licensee at its present
location.
2.6 Trademark. Licensee may market the Licensed Software under a
trademark of its choice. Licensee is granted no rights to use any Licensor
trademark or trade name.
3. MAINTENANCE.
3.1 Support for Licensed Software. Licensee agrees that it shall
provide technical support for Licensed Software to all channel partners and
end-users. Licensee shall ensure that all questions regarding the use or
operation of any software marketed by Licensee are addressed to and answered by
Licensee, and Licensee will not represent to any third party that Licensor is
available to answer any customer questions directly. Licensor shall refer to
Licensee any customer service questions relating to Licensed Software
distributed by Licensee.
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3.2 Licensor Maintenance Obligations. Licensor shall have no
responsibility to provide any maintenance services (including but not limited to
updates, enhancements, error corrections or bug fixes) with respect to the
Licensed Software except as provided in this Section 3.2. Licensor shall provide
to Licensee at no charge: (i) the next release of the Architect Component of the
AIM Software (the "Architect") presently scheduled for June 30, 1998, and (ii)
the next major release of the Architect subsequent to the release described in
subsection (i) above.
3.3 Additional Support. During the first year of this Agreement,
Licensor shall provide to Licensee, without cost and for a period not to exceed
six (6) months, assistance relating to the Architect, as follows: Up to three
(3) qualified individuals employed or contracted by Licensee may receive
orientation and training concerning the Architect at Licensor's headquarters of
the same type as if they were new employees of Licensor. The training shall be
conducted by those employees of Licensor who are primarily responsible for the
development of the Architect and shall not unreasonably interfere with
Licensor's normal business operations.
4. SOURCE CODE ESCROW. Within thirty (30) days after the Effective Date of this
Agreement, Licensor shall deposit the source code for the AIM Software and the
Decision Software with a third party escrow agent under terms and conditions
mutually agreeable by both Licensor and Licensee. Licensee shall thereafter have
thirty (30) days to inspect and verify such deposit is an accurate
representation of the AIM Software and the Decision Software. In the event a
dispute arises between the parties as to whether certain software was sold to
Licensee as part of the Acquired Products under the Asset Purchase Agreement or
licensed to Licensee as part of the AIM Software under this Agreement or with
respect to the parties' relative responsibilities for infringement or other
obligations, the parties hereby agree that the software escrowed pursuant to
this section is a complete copy of the AIM Software and the Decision Software
and constitutes that portion of the software to which Licensor retains title and
ownership and may be used to settle any dispute between the parties.
5. WARRANTY.
5.1 Warranty of Title. Licensor represents and warrants it is the owner
of the Licensed Software except as identified in Section 3 of Schedule A and has
complete and lawful authority to grant Licensee the rights hereunder.
5.2 Warranty of Escrow Deposit. Licensor represents and warrants the
software deposited in escrow in accordance with Section 4 of this Agreement is
identical to the AIM Software and the Decision Software delivered under Section
2.5 of this Agreement.
5.3 Disclaimer. EXCEPT AS SPECIFICALLY WARRANTED ABOVE, LICENSOR MAKES
NO OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO
ANY SUCH MATERIALS, AND LICENSOR SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
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6. PROPERTY RIGHTS.
6.1 Property Rights. Licensee acknowledges and agrees that Licensor
owns all right, title, and interest in the AIM Software and Decision Software
now or hereafter subject to this Agreement. Licensor acknowledges and agrees
that Licensee owns all right, title, and interest in any derivative software
developed by Licensee from the AIM Software and Decision Software now or
hereafter subject to this Agreement and Licensor has no right or license to such
derivative works.
6.2 Indemnity. Licensor shall defend and indemnify Licensee, at
Licensor's expense, against any claim or suit against Licensee based on (i) an
alleged infringement of a copyright or United States or European Community
patent; or (ii) a misappropriation of a trade secret of a third party arising
out of, relating to or resulting from the use of the Licensed Software, and
Licensor shall pay all (a) costs; (b) settlements; or (c) judgments finally
awarded provided that Licensor has the right solely to control the defense of
the Litigation, Licensee takes such actions and gives Licensor all necessary
assistance, at Licensor's expense, as Licensor may reasonably request and
Licensee gives Licensor prompt written notice of any claim. If a judgment is
obtained against Licensee's use of any part of the Licensed Software or if
Licensor considers that there is a likelihood of the claim of infringement
succeeding, it shall, at its option and expense, modify or substitute the
Licensed Software or obtain the right for Licensee to continue use. Licensor
shall have no obligation to defend and indemnify under this section, and
Licensee shall defend and indemnify Licensor on the same terms, to the extent
that the claim or liability is based upon modification of the Licensed Software
not made by or through Licensor. This Section states Licensor's entire liability
for infringement with respect to the AIM Software or Decision Software.
7. LIMITATION OF LIABILITY. Except as may be provided otherwise in Section 6.2,
IN NO EVENT SHALL LICENSOR HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR
SPECIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS.
8. CONFIDENTIAL INFORMATION.
8.1 Definition. As used in this Agreement, the term "Confidential
Information" shall mean any information disclosed by one party to the other
pursuant to this Agreement which is in written, graphic, machine readable or
other tangible form and is marked "Confidential".
8.2 General. Each party shall treat as confidential all Confidential
Information of the other party, shall not use such Confidential Information
except as expressly set forth herein or otherwise authorized in writing, shall
implement reasonable procedures to prohibit the disclosure, unauthorized
duplication, misuse or removal of the other party's Confidential Information and
shall not disclose such Confidential Information to any third party except as
may be necessary and required in connection with the rights and obligations of
such party under this Agreement, and subject to confidentiality obligations at
least as protective as those set forth herein. Without limiting the foregoing,
each of the parties shall use at least the same procedures and degree of care
which it uses to prevent the disclosure of its own confidential information of
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like importance to prevent the disclosure of Confidential Information disclosed
to it by the other party under this Agreement, but in no event less than
reasonable care.
8.3 Exceptions. Notwithstanding the above, neither party shall have
liability to the other with regard to any Confidential Information of the other
which: (i) was generally known and available in the public domain at the time it
was disclosed or becomes generally known and available in the public domain
through no fault of the receiver; (ii) was known to the receiver at the time of
disclosure; (iii) is disclosed with the prior written approval of the
disclosure; (iv) was independently developed by the receiver without any use of
the Confidential Information; (v) becomes known to the receiver from a source
other than the disclosure without breach of this Agreement by the receiver and
otherwise not in violation of the discloser's rights; or (vi) was in response to
a valid order by a court or other governmental body, was otherwise required by
law, or was necessary to establish the right of either party under this
Agreement.
8.4 Remedies. If either party breaches any of its obligations with
respect to confidentiality and unauthorized use of Confidential Information
hereunder, the other party shall be entitled to seek equitable relief to protect
its interest therein, including but not limited to injunctive relief, as well as
money damages.
9. MISCELLANEOUS.
9.1 Governing Law. It is the intention of the parties hereto that the
laws of the State of Arizona (irrespective of its choice of law principles)
shall govern the validity of this Agreement, the construction of its terms, and
the interpretation and enforcement of the rights and duties of the parties
hereto.
9.2 Assignment; Binding upon Successors and Assigns. Neither of the
parties hereto may assign any of its rights or obligations hereunder without the
prior written consent of the other party, which consent shall not be
unreasonably withheld; provided, however, that (a) Licensee may assign its
rights under this Agreement to any majority-owned subsidiary of Licensee,
provided that Licensee guarantees the obligations of such subsidiary hereunder
or (b) either party may assign its rights or obligations to any successor
through any merger or consolidation, or purchase of all or substantially all of
the party's stock or all or substantially all of the assets related to the
Products (in the case of Licensee) or the Licensed Software (in the case of
Licensor). This Agreement will be binding upon and inure to the benefit of the
parties hereto and their respective permitted successors and assigns.
9.3 Severability. If any provision of this Agreement, or the
application thereof, shall for any reason and to any extent be held to be
invalid or unenforceable, the remainder of this Agreement and the application of
such provision to other persons or circumstances shall be interpreted so as best
to reasonably effect the intent of the parties hereto. The parties further agree
to replace such invalid or unenforceable provision of this Agreement with a
valid and enforceable provision which will achieve, to the extent possible, the
economic, business and other purposes of the invalid or unenforceable provision.
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9.4 Entire Agreement. This Agreement, the Schedules hereto, and the
documents referenced herein, constitute the entire understanding and agreement
of the parties hereto with respect to the subject matter hereof and thereof and
supersede all prior and contemporaneous agreements or understandings,
inducements or conditions, express or implied, written or oral, between the
parties with respect hereto.
9.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
9.6 Arbitration.
(a) If any dispute relating to this Agreement arises between
the parties, and no agreement relating to such dispute can be reached after good
faith negotiation, either Licensee or Licensor may, by written notice to the
other, demand arbitration of the matter unless the dispute is at issue in
pending litigation with a third party, in which event arbitration shall not be
commenced until such dispute is resolved or both parties agree to arbitration;
and in either such event the matter shall be settled by arbitration conducted by
one arbitrator. Licensee and Licensor shall agree on the arbitrator, provided
that if Licensee and Licensor cannot agree on such arbitrator, either Licensee
or Licensor can request that the Judicial Arbitration and Mediation Services
("JAMS") select the arbitrator. The arbitrator shall set a limited time period
and establish procedures designed to reduce the cost and time for discovery
while allowing the parties an opportunity, adequate in the sole judgment of the
arbitrator, to discover relevant information from the opposing parties about the
subject matter of the dispute. The arbitrator shall rule upon motions to compel
or limit discovery and shall have the authority to impose sanctions, including
attorneys' fees and costs, to the same extent as a court of competent law or
equity, should the arbitrator determine that discovery was sought without
substantial justification or that discovery was refused or objected to without
substantial justification. Subject to the foregoing, the arbitration shall
proceed under the rules of the American Arbitration Association. The decision of
the arbitrator shall be written, shall be in accordance with applicable law and
with this Agreement, and shall be supported by written findings of fact and
conclusion of law which shall set forth the basis for the decision of the
arbitrator. The decision of the arbitrator as to the validity and amount of any
claim shall be binding and conclusive upon the parties to this Agreement.
(b) Judgment upon any award rendered by the arbitrator may be
entered in any court having jurisdiction. Any such arbitration shall be held in
Chicago, Illinois under the commercial rules then in effect of the American
Arbitration Association.
9.7 Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party shall be deemed cumulative with
and not exclusive of any other remedy conferred hereby or by law on such party,
and the exercise of any one remedy shall not preclude the exercise of any other.
9.8 Waiver. No action taken pursuant to this Agreement, including
without limitation any investigation by or on behalf of any party, shall be
deemed to constitute a waiver by the
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party taking such action of compliance with any representation, warranty,
condition or agreement contained herein. Waiver of the breach of any one or more
provisions of this Agreement shall not be deemed or construed to be a waiver of
other breaches or subsequent breaches of the same provisions.
9.9 Notices. All notices and other communications hereunder will be in
writing and will be deemed given (a) upon receipt if delivered personally (or if
mailed by registered or certified mail), (b) the day after dispatch if sent by
overnight courier, (c) upon dispatch if transmitted by telecopier or other means
of facsimile transmission (and confirmed by a copy delivered in accordance with
clause (a) or (b)), properly addressed to the parties at the following
addresses:
Licensor: Comshare, Incorporated
555 Briarwood Circle
Ann Arbor, Michigan 48108
Attention: President
Facsimile No. (734) 997-4140
Parent or Licensee: JDA Software Group, Inc.
JDA Enterprise, Inc.
11811 North Tatum Blvd., Suite 2000
Phoenix, Arizona 85028
Attention: Karen Nagle, Esq.
General Counsel
Facsimile No. (602) 404-5520
Either party may change its address for such communications by giving
notice thereof to the other party in conformity with this section.
9.10 Construction and Interpretation of Agreement.
(a) This Agreement has been negotiated by the parties hereto and their
respective attorneys, and the language hereof shall not be construed for or
against either party by reason of it having drafted such language.
(b) The titles and headings herein are for reference purposes only and
shall not in any manner limit the construction of this Agreement, which shall be
considered as a whole.
9.11 No Joint Venture. Nothing contained in this Agreement shall be
deemed or construed as creating a joint venture or partnership between any of
the parties hereto. No party is by virtue of this Agreement authorized as an
agent, employee or legal representative of any other party. No party shall have
the power to control the activities and operations of any other and their status
is, and at all times, will continue to be, that of independent contractors with
respect to each other. No party shall have any power or authority to bind or
commit any other. No party shall hold itself out as having any authority or
relationship in contravention of this Section.
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9.12 Absence of Third Party Beneficiary Rights. No provisions of this
Agreement are intended, nor shall be interpreted, to provide or create any third
party beneficiary rights or any other rights of any kind in any client,
customer, affiliate, shareholder, partner of any party hereto or any other
person or entity unless specifically provided otherwise herein, and, except as
so provided, all provisions hereof shall be personal solely between the parties
to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by duly authorized officers or representatives as of the date first above
written.
LICENSOR LICENSEE
COMSHARE, INCORPORATED JDA SOFTWARE, INC.
By:_____________________________________ By:_________________________________
Dennis G. Ganster Brent W. Lippman
President Chief Executive Officer
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SCHEDULE A
LICENSED SOFTWARE
Section 1: AIM Software
Architect
Non-retail Portions of Arthur Information Manager:
Loader Aggregator
Structure Engine
Section 2: Decision Software
MMT
CS Client
Decision Access Module, including, but not limited to:
EQL
MMT Router
FTE
Administrator application
Decision Desktop Container:
includes Grid value-added features, Assortment Data Source,
EQL.OCX and Channel.OCX, which comprise all of the material
components, functions and features of Decision Desktop
Container required for development and operation Arthur
Assortment Planning.
Section 3: Supporting Software
None
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