Exhibit 10.1
SOFTWARE LICENSE AGREEMENT
PARK CITY GROUP, INC. CANNON EQUIPMENT COMPANY
P.O. BOX 5000 15100 BUSINESS PARKWAY
PARK CITY, UTAH 84060 ROSEMOUNT, MN 55068
ATTN: RANDALL K. FIELDS ATTN:
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Software License Fee
Supply Chain Profit Link, as described in Exhibit 1,
including an unlimited number of locations
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Total License Fee Amount Due $3,000,000.00
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We grant, and you accept, a perpetual, non-exclusive and non-transferable
license for you and your affiliates to use the Software listed above, subject to
all the terms of this License.
While such license does not include the right to transfer or sublicense (other
than to your affiliates), we acknowledge and agree that you may utilize the
Software in support of store layout design, collation and dissemination of
retail sales intelligence, design and manufacture of display systems and other
product and services businesses, and that such utilization will include, among
other matters, making the results that are produced from using the Software
available to retailers and brand-owners in order to measure the efficacy of the
products and services provided by or through you or your affiliates to any such
retailer and brand-owner. The Total Amount Due is payable upon delivery of the
Software and execution of a software escrow agreement for your benefit with a
third party escrow agent reasonably satisfactory to you (the "Effective Date").
Maintenance service commences after expiration of the limited warranty service
period of ninety (90) days. The cost for maintenance for the first nine (9)
months of maintenance following the limited warranty period is included in the
Total License Fee Amount. Maintenance of the Software shall continue thereafter
annually unless and until terminated by you on not less than thirty (30) days
prior written notice to us. The cost of maintenance is calculated as 18% of the
then current license fee for the applications included in this agreement for the
first year following the initial nine (9) month period payable at the beginning
of the maintenance period for which payment is made. For all subsequent years
for which maintenance services may be contracted the maintenance fee may be
increased annually to reflect the change in the Consumer Price Index. If you
elect to cancel and later wish to resume maintenance services, you will, as a
condition of maintenance resumption, pay us all maintenance fees that would have
been due from the date of cancellation to the date of resumption, as if you had
not cancelled maintenance services. With respect to maintenance services, you
will reimburse us for all charges that we incur in computer-to-computer
communications and for travel, accommodations and other reasonable out-of-pocket
expenses for such services performed outside of Park City, Utah with your
consent, which may not be unreasonably withheld. Any additional services or
other offerings from Park City Group for the benefit of Customer will be covered
under separate agreement(s).
The Software is licensed, not sold.
Licensee: Licensor:
CANNON EQUIPMENT COMPANY PARK CITY GROUP, INC.
By:____________________________________ By:______________________________
Name:__________________________________ Name:____________________________
Title:_________________________________ Title:___________________________
Date:__________________________________ Date:____________________________
General License Terms and Limited Warranty
1. DEFINITIONS
1.1 "Software" means the application software (in object code form)
listed on the front hereof, and all corrections, updates , modifications and
replacement versions or products to such software that we provide to you.
1.2 "Documentation" means specifications, users manuals and other
documentation supplied by us with the Software, and all updates that we provide
to you.
1.3 "Product" means the Software and the Documentation, and also
includes any hardware or software devices used to enable execution of the
Software.
2. LICENSE
2.1 What You Are Entitled To Do. You and your affiliates may (a) copy
and use the Software on any number of computers, servers and terminals,
including networked and multi-user computers and terminals, with any number of
your clients, and on your host computers and communications servers; (b) copy
the Documentation for use with the Software; (c) use the Product only in your
business and/or that of your affiliates, including use of the Software in
support of store layout design, collation and dissemination of retail sales
intelligence, design and manufacture of display systems and other product and
services businesses, and that such utilization will include, among other
matters, making the results that are produced from using the Software available
to retailers and brand-owners in order to measure the efficacy of the products
and services provided by or through you or your affiliates to any such retailer
and brand-owner and (d) make backup and archival copies of the Software. You may
transfer the Software between computers. You must maintain a record of all
copies made of the Product, and permit us to verify the locations and computers
on which the Software is installed.
2.2 What You Are Not Entitled To Do. You will not (a) install the
Software on your client's computers; (b) assign, license or voluntarily
transfer, whether by operation of law or otherwise, your rights hereunder; (c)
loan, rent, lease or sublicense the Product; (d) use the Software to perform
services for others other than as specified in paragraph 2.1(c); (e) decompile,
disassemble or otherwise reverse engineer the Software; (f) modify, translate or
create derivative works of the Product unless you are then entitled to
possession of the source code for the Software; or (g) remove any copyright or
other proprietary designations from the Product.
2.3 Third Party Product. If the Software incorporates other software
licensed to us ("Third Party Software"), we grant to you a non-exclusive,
non-transferable and non-assignable sublicense to use such Third Party Software.
The operation of the Software does not require you to have rights to other
software not licensed to us except for Windows, Terminal Services, Oracle or SQL
Database.
3. SELECTION AND USE
You are solely responsible for the Software's selection, and unless we
are hosting it for you also its installation, operation and proper use
(including its conformity as implemented to local laws), verifying data input,
output and results obtained, making back-ups, and providing data files or tables
for the operation of the Software.
4. PROPRIETARY RIGHTS
We have copyrights in the Product, and patents or patents pending in
portions of the Product, and retain all intellectual property rights in
inventions, applications and other works of authorship prepared or derived using
the Product, excluding your proprietary business information, materials, trade
marks and forms reproduced in your implementation of the Product. The Product
contains trade secrets and information proprietary to us. In addition, you may
learn other information, which we designate as, or from its nature or the
circumstances of its disclosure should have been known to be, confidential or
proprietary to us. Unless compelled by legal process, you may not use, disclose,
provide or otherwise make the Product or any such information (including the
terms of this License) available to any person other than your employees with a
need to know, persons retained for its installation, your agents, consultants
and customers bound by confidentiality covenants consistent with your
confidentiality obligations hereunder, and will ensure that any access to the
Product or such information will comply with this License. The foregoing
obligations shall not apply to information which: (i) is publicly available
prior to the date of this agreement; (ii) becomes publicly available after the
date of this agreement through no wrongful act of the Receiving Party; (iii) is
furnished to others by the Disclosing Party without any proprietary restrictions
on their right to use or disclose; (iv) is known by the Receiving Party without
any proprietary restrictions at the time of receipt of such information from the
Disclosing Party or becomes rightfully known to the receiving Party without
proprietary restrictions from a source other than the Disclosing Party; or (v)
is independently developed by the Receiving Party by persons who did not have
access, directly or indirectly, to the Proprietary Information.
You also have copyrights in your products, and/or patents or patents
pending in your products, and we acknowledge and agree that you retain all
intellectual property rights in inventions, applications and other works of
authorship prepared or derived using your products, excluding our proprietary
business information, materials, trade marks and forms reproduced in your
implementation of the Product. In the course of our relationship we may learn
other information, which you designate as, or from its nature or the
circumstances of its disclosure should have been known to be, confidential or
proprietary to you. Unless compelled by legal process, we will not use,
disclose, provide or otherwise make any such information (including the terms of
this License) available to any person other than our employees with a need to
know, persons retained for its installation, our agents, and consultants bound
by confidentiality covenants consistent with our confidentiality obligations
hereunder, and will ensure that any access to your products or such information
will comply with this paragraph. The foregoing obligations shall not apply to
information which: (i) is publicly available prior to the date of this
agreement; (ii) becomes publicly available after the date of this agreement
through no wrongful act of the Receiving Party; (iii) is furnished to others by
the Disclosing Party without any proprietary restrictions on their right to use
or disclose; (iv) is known by the Receiving Party without any proprietary
restrictions at the time of receipt of such information from the Disclosing
Party or becomes rightfully known to the receiving Party without proprietary
restrictions from a source other than the Disclosing Party; or (v) is
independently developed by the Receiving Party by persons who did not have
access, directly or indirectly, to the Proprietary Information.
5. LIMITED WARRANTY
5.1 What Our Limited Warranty Covers. We warrant that the Software
delivered to you will conform in all material respects to specifications
contained in the Documentation, to the description thereof set forth in Exhibit
1 hereto, to the version of the Software previously delivered to you and to the
most recent version of the Software on the date of delivery, will be free of
computer viruses and will be free from "material" defects, for a period of
ninety (90) days after delivery. During the warranty period, and thereafter so
long as you subscribe and pay for our maintenance services, we will (a) provide
you with hot line telephone support from 9:00 a.m. to 5:00 p.m. MST, on regular
business days, excluding our holidays; (b) provide you with corrections, updates
and other modifications that we develop and make available to our maintenance
customers without additional charge; and (c) provide, as soon as is reasonably
practicable, an avoidance procedure for or correction to any breach of the
foregoing warranty. For such purpose, a defect is "material" if it causes
execution of the Software to terminate abnormally, produces misleading or
incorrect results, does not perform a function described in the Documentation,
or impairs data integrity. If we are unable after reasonable efforts to provide
an avoidance procedure or correction curing such breach, you may (i) during the
limited warranty period, terminate your license of the defective Software module
or, (ii) during any maintenance period, terminate your license and our
maintenance services for the defective Software module. EXCEPT FOR ANY REMEDIES
THAT MAY BE AVAILABLE TO YOU UNDER THE SOFTWARE ESCROW AGREEMENT, THE PROVISIONS
OF THIS SECTION 5.1 SET FORTH OUR ENTIRE LIABILITY AND YOUR SOLE REMEDIES WITH
RESPECT TO OUR WARRANTY AND MAINTENANCE SERVICES. Services are available only
for the most current and the immediately preceding version or edition of the
Software. You will provide us with a personal computer or workstation identical
to and configured exactly like the personal computers or workstations on which
you have installed the Software (we will return the computer or workstation when
our maintenance services end). Either of us may terminate maintenance services
at the end of the current period on 30 days prior notice.
5.2 What Our Limited Warranty Does Not Cover. We do not warrant
uninterrupted or error-free operation, compatibility with hardware or software
not specified in the documentation, or anything concerning Third Party Software.
Our warranty will terminate (a) if the Software is not installed, operated and
maintained in accordance with instructions and specifications contained in the
Documentation or is modified in a manner not authorized by us, (b) if
corrections, updates and modifications supplied by us are not implemented or (c)
if you do not reasonably cooperate with us so that we can fulfill our
responsibilities hereunder.
5.3 NO OTHER WARRANTIES. THE ABOVE WARRANTY IS MADE IN LIEU OF, AND WE
DISCLAIM, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
6. PATENTS AND COPYRIGHTS
We will defend you against claims that the Software or any portion
thereof infringes a U.S. patent or copyright, and pay (a) all costs, damages and
attorney's fees finally awarded against you as a result of such claim, and (b)
any settlement of such claim, provided that you notify us promptly in writing of
such claim, give us complete authority and control of, and fully cooperate with
us in, the defense and settlement of such claim. If any such claim occurs, or in
our sole opinion is likely to occur, we will in our sole discretion and at our
own expense (i) procure for you the right to continue use of the infringing
Software, (ii) modify or replace the Software so that it becomes non-infringing,
without impairing its functionality, or (iii) direct you to cease using the
infringing Software. If we direct you to cease use, or if we cannot provide a
right to continue use, or a replacement or modification, of the infringing
Software, we will refund your license fee for the infringing Software or
infringing portion thereof, less a charge for use based on straight-line
amortization of such fee over five (5) years. We have no liability or obligation
for claims based on (A) modifications not authorized or supplied by us, (B) the
combination of the Software with other software or hardware not specified in the
Documentation, (C) infringement by Third Party Software alone, rather than in
combination with the Software, (D) claims that could have been avoided by timely
implementation of corrections, updates and modifications provided by us and (E)
any settlement made by you without our consent. THIS SECTION 6 STATES OUR ENTIRE
OBLIGATION FOR INFRINGEMENT CLAIMS.
7. MAXIMUM AGGREGATE LIABILITY. IN NO EVENT WILL OUR TOTAL LIABILITY FROM ALL
CAUSES OF ACTION OF ANY KIND RELATED TO THIS LICENSE, INCLUDING TORT, CONTRACT,
NEGLIGENCE AND STRICT LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU TO US.
8. EXCLUSION OF CERTAIN DAMAGES. REGARDLESS WHETHER ANY REMEDY SET FORTH HEREIN
FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL WE BE LIABLE FOR
ANY LOST PROFITS OR DATA, OR ANY FORM OF SPECIAL, INCIDENTAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, EVEN IF WE KNEW OR HAD REASON TO
KNOW IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
9. NO RIGHT OF TERMINATION; REMEDIES
This License is non-terminable, without prejudice to the right of each
party to sue the other for breach of contract and recover damages.
10. GENERAL
10.1 Attorney's Fees. The prevailing party in any legal action
concerning this License is entitled to recover its reasonable attorney's fees
and costs following a final judgment.
10.2 Construction; Headings. Section headings are for convenience and
will not affect the construction or interpretation of any provisions of this
License.
10.3 Entire Agreement. This License contains our entire agreement, and
may be modified only by a signed written document. THIS LICENSE MAY NOT BE
CONTRADICTED BY EVIDENCE OF ANY ALLEGED ORAL AGREEMENT. ALL PRIOR ORAL
DISCUSSIONS ARE MERGED IN THIS LICENSE. No course of dealing or failure or delay
in exercising any right, privilege, remedy or option will operate as a waiver of
any right, privilege, remedy or option under this License.
10.4 Announcement. We reserve the right to publish public notification
of a contractual agreement between the parties and that we will not disclose the
specific terms and conditions of the agreement.
10.5 Export. The Software is subject to restrictions and controls
imposed under U.S. export laws. You certify that neither the Software nor any
direct product thereof is being or will be exported or re-exported, directly or
indirectly, to any country for which a validated license is required under such
laws without first obtaining such a validated license.
10.6 Excusable Delays. We are not liable for delays in or failure of
performance due to causes beyond our reasonable control.
10.7 Governing Law. This License is governed by the laws of Utah,
excluding laws pertaining to choice of law. Any provision found to be
unenforceable or invalid will be severable and will not affect the
enforceability or validity of the other provisions to the maximum extent
permissible.