EXHIBIT 10.11
SOFTWARE LICENSE AND MARKETING AGREEMENT
THIS AGREEMENT is made effective January 4th, 1996 (the "Effective Date") by and
between SHOWCASE CORPORATION, a Minnesota Corporation having a principal place
of business at 4131 Highway 52 North, Rochester, MN 55901 USA (hereinafter
"Licensee") and AppSource, a Florida corporation, having a principal place of
business at Lakeside Center, 4751 Rosewood Drive, Orlando, FL 32806, U
SA(hereinafter "AppSource").
1. PRODUCT DESCRIPTION
a. WIRED FOR OLAP. The Product, Documentation and Licensee
Product which relate to this agreement are in Exhibit A
attached to this Agreement.
2. PRODUCT FEATURES
Licensee agrees that the Product meets the specifications set forth in
Exhibit A.
3. DELIVERY
AppSource agrees to deliver to Licensee a complete copy of the Product
no later than the date specified in the Delivery Schedule set forth in
Exhibit A attached hereto. A "complete copy" shall include five (5)
diskettes comprising a complete working copy of the Product in
executable form which satisfies the functional specifications set forth
in the Documentation. A complete copy shall also include the
Documentation in its existing printed form. AppSource shall deliver the
Product and Documentation to a common carrier selected by Licensee.
4. RIGHTS GRANTED
a. Rights In Product. Subject to the terms and conditions set
forth herein, AppSource hereby grants to Licensee a license to
market, use internally and distribute the Product and
Documentation, for use in Licensee Product, marketed and/or
distributed by Licensee as listed in Exhibit A of this
agreement on a world wide basis.
Licensee shall maintain exclusive rights to market the product
in conjunction with the IBM AS/400 midrange computer.
b. Ownership. Subject to the rights and licenses granted to
Licensee hereunder, AppSource shall retain all right, title
and interest in and to the Product including all copyrights.
Licensee shall have the right any time after the First
Agreement Year, as defined in section 8h below, to purchase
the source code for the Product
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for use only in conjunction with the IBM AS/400 midrange
computer for a price equal to (*). Licensee will own the
rights to the source code at no fee in the event of insolvency
or bankruptcy.
c. AppSource Marks. Licensee agrees to honor and use AppSource
trademarks, copyrights and trade names belonging to AppSource
("AppSource Marks"}. Licensee may not use AppSource Marks for
other purposes without the express written permission from
AppSource.
d. Third Party and License Terms. AppSource acknowledges that
Licensee's Software License Terms attached hereto as Exhibit C
provide AppSource with adequate protection of its intellectual
property with respect to Licensee's end- users (AppSource may
require different license terms for different countries or may
refuse to allow licensing in certain countries if it deems its
intellectual property cannot be adequately protected,
including a government restricted rights clause). Licensee may
not enter into a Licensing Agreement with any end-user whereby
the Product is sold, marketed or distributed separate from the
Licensee's Product or whereby the Product is sold, marketed or
distributed under separate identity from that of Licensee
Product. Licensee's Software License Agreement must include a
clause that stipulates end-users may not re-license the
Product. Licensee may sublicense the Product to
subdistributors who, in turn, sublicense the Product to
end-users.
e. Competition. Licensee must market, sell or distribute the
Product with Licensee Product. At no time shall Licensee be
entitled to enter into direct competition with AppSource
marketing efforts of the Product outside of the AS/400
marketplace or sell, market or distribute the Product separate
from Licensee Product.
f. Internal Use. AppSource grants to Licensee a (*) license to
use and reproduce the Product for use with Licensee Product
specified in Exhibit A.
g. Independent Software Resellers. Licensee will market and
distribute the Product and related services for the AS/400 to
independent software vendors (ISV). AppSource will market and
distribute the Product and related services for ISVs for all
non-AS/400 environments. In the event an ISV desires the
rights to distribute the Product on multiple platforms, the
ISV will negotiate separately with AppSource and Licensee for
those rights. AppSource and Licensee will exercise good faith
efforts to ensure that their respective ISV arrangements, with
mutual third parties, are compatible.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
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5. MANUFACTURING
a. All manufacturing of the required media for distribution of
the Product including PC diskettes and AS/400 tapes and
documentation will be the responsibility of the Licensee.
b. Product Translation. Licensee will pay (*) of any costs
associated with the translation of the Product. AppSource will
have the rights to these translated versions on non-AS/400
platforms.
6. PRODUCT MARKETING
a. Marketing Rights. Licensee shall have the authority to market
or not market the Product as it deems appropriate provided
Licensee does not violate AppSource's Rights (as in paragraph
4 above) in the Product. In the event Licensee rejects an
enhanced or modified Product, Licensee shall be entitled to
continue to distribute the previous version of that Product.
b. Non-Restrictive Relationship. Except as provided in Section
4a, this Agreement shall not preclude AppSource from entering
into the same or similar agreement with third parties for
distribution of the Product.
c. Escrow. AppSource agrees to maintain current versions of all
code for the System in deposit with a mutually agreed on code
escrow service, and to register, and maintain as registered,
Licensee as a party that may have access to such code under
certain "release conditions". Such "release conditions" shall
consist of any one or more of the following circumstances
remaining uncorrected for more than thirty (30) days: filing
for relief under any section of the United States Bankruptcy
Code, the making by AppSource of a general assignment for the
benefit of creditors, the appointment of a receiver or trustee
of AppSource's business property or any other action by
AppSource under any insolvency or similar law for the purpose
of its bankruptcy, reorganization or liquidation. AppSource
shall deliver promptly after the date hereof to escrow agent
the source code and related documentation and at the same time
notify Licensee of such delivery. AppSource shall bear the
fees charged by the escrow agent for such registration of the
System code.
7. PRODUCT MAINTENANCE AND SUPPORT
a. General. The parties anticipate that Licensee will make best
efforts to provide direct, primary support for the Product to
end-user customers. Licensee will be
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
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responsible for supporting Licensee Product and the Product as
it relates to Licensee Product. AppSource will provide at no
charge support to Licensee with respect to the Product,
including on-line support as further set forth below.
b. AppSource Support to Licensee. AppSource will provide Licensee
with ongoing maintenance and technical support for the
Product. Maintenance and support shall include:
(i) Receiving defect reports from Licensee and fixing
defects or providing workarounds.
(ii) Maintaining a telephone number of Licensee to call
during normal business hours to report problems and
receive assistance.
(iii) Providing a knowledgeable support contact for
providing technical support.
c. Response to Defects. AppSource shall make any necessary
changes to the Product so that the Product functions and
performs substantially in accordance with its published
documentation. If Licensee believes a bug exists, Licensee
will notify AppSource of the bug, at which time it will be
categorized as follows:
(i) Severity Level 1 Bug. An error which causes the
system or a major component of it to stop or renders
it otherwise unusable, or data corruption bug.
(ii) Severity Level 2 Bug. All other errors whereby the
user can continue to operate.
The Licensee will provide information in writing as to how the
bug was created, and if possible, printouts showing the
problem. AppSource shall respond to Severity Level 1 bugs
within (*) hours of notice by Licensee. AppSource shall use
the best efforts to promptly correct any Product errors of
Severity Level 1. Severity Level 2 bugs will be corrected and
released to Licensee during subsequent Product maintenance
releases. AppSource agrees to continue support upon expiration
or termination of this Agreement at it's generally available
commercial rates.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
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d. Support of Previous Versions of Product. Support of previous
Product versions will be limited to two previous versions and
standard telephone support to the users and will not include
corrective action as set forth in Section 7.c above.
e. Product Upgrades. AppSource will promptly provide Licensee
with a master copy of any upgrade to the Product, which is
made generally available during the term of this agreement,
for distribution to Licensee customers.
f. Support & Maintenance Fees. The support and maintenance fee
will be priced at (*) of the cumulative prior months
royalties. Licensee will pay $(*) in prepaid maintenance
expenses. This prepaid maintenance will be offset against
monthly maintenance accrued during the term of this agreement.
Maintenance fees will be due within fifteen (15) days of
reporting monthly royalties as specified in section 8b below.
8. PAYMENT
a. Royalty Payments. Licensee will pay a fee equal to (*) of the
current list price of the Product on the UNIX platform.
AppSource may change it's list price at it's sole discretion
upon 90 days written notice to Licensee.
All fees are calculated in US Dollars.
b. Payment of Royalties. Licensee will report per unit royalties
on or before the 30th of the month following the month in
which they were sold. Per unit royalty payments will be due
within fifteen (15) days of reporting monthly sales. Any other
fees associated with this Agreement will be due and payable on
a net 30 basis.
d. AppSource Audit Rights. Licensee shall keep true and accurate
records of all Products distributed, in accordance with
generally accepted accounting principles, consistently
applied. No more frequently than once a year and during
regular business hours, AppSource shall have the right (upon
two business days prior notice) to have a certified public
accountant selected by AppSource audit the books of Licensee.
AppSource shall pay the cost of such audit unless such audit
should reveal an underpayment by Licensee of 5% or greater at
which such time as audit costs would be the responsibility of
Licensee.
e. To ensure that Licensee maintains the exclusive right to
distribute the Product, Licensee must meet it's minimum
royalty payment commitments outlined in Sections 8.h below.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
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f. If Licensee fails to meet its minimum royalty payment
commitments specified below for any given Agreement Year (as
defined below), Licensee has the option to pay AppSource the
remaining balance of the commitment for that Agreement Year
within thirty (30) days after the end of that Agreement Year,
thereby meeting it's commitment and protecting it's exclusive
distribution rights for the subsequent Agreement Year period.
g. If Licensee fails to meet it's minimum royalty payment
commitments outlined below for a particular Agreement Year and
elects not to pay AppSource the remaining balance of the
commitment for that Agreement year, the exclusive distribution
rights granted Licensee shall terminate and AppSource shall
have the right to grant third parties non-exclusive licenses
to prepare and distribute the Product on the AS/400 platform.
Licensee shall continue to have non-exclusive marketing rights
for the Product.
h. The first Agreement Year (i.e. Year One, and each anniversary
of the Ship Date thereafter shall be referred to as Year "X")
will commence on the earlier of (I) the production release
date for the Licensee Product, or (II) six (6) months from the
Effective Date of this agreement ("Ship Date") and end of the
day immediately preceding the first anniversary of the Ship
Date. This will require twelve (12) month cumulative royalty
payment to AppSource of (*) during Year One.
i. Year Two will start twelve (12) months following the Ship Date
and will require a twelve (12) month cumulative royalty
payment to AppSource of (*).
j. Year Three will start twenty four (24) months following the
Ship Date and will require a twelve (12) month cumulative
royalty payment to AppSource of (*).
k. Year Four will start thirty six (36) months following the Ship
Date and will require a twelve (12) month cumulative royalty
payment to AppSource of (*).
l. Year Five will start forty eight (48) months following the
Ship Date and will require a twelve (12) month cumulative
royalty payment to AppSource of (*).
9. CONFIDENTIAL INFORMATION
Neither party desires the confidential information of the other and
each agrees to pass on such non confidential information as may be
necessary to resolve an issue. However, if during the term of this
Agreement, either party requires access to information which the other
party considers to be confidential or proprietary ("Confidential
Information"), the
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
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information may be exchanged in confidence, but each party must first
agree to disclose and receive the information in confidence in
accordance with the terms of the Non Disclosure Agreement as indicated
in Exhibit F.
Confidential Information shall not include that which:
a) is in the public domain prior to the disclosure to
the receiving party;
b) is lawfully in the receiving party's possession prior
to the disclosure;
c) becomes part of the public domain by publication or
otherwise through no unauthorized act or omission on
the part of the receiving party; or
d) is developed by the receiving party independent of
any Confidential Information of the disclosing party.
The burden of proving that informations is excepted under
sections 9a-d shall be on the receiving party.
10. WARRANTY
a. Warranty of Software. AppSource warrants that the Product will
conform to its Documentation at the time the master disk is
delivered to Licensee and for a period of ninety (90) days
thereafter. AppSource makes no warranty to the end- users, any
such warrant to be made and honored by Licensee. NO OTHER
WARRANTY OR CONDITION, EXPRESSED OR IMPLIED, INCLUDING
WARRANTIES OR CONDITIONS RELATED TO FITNESS FOR PURPOSE OR
MERCHANTABILITY, ARE GRANTED TO LICENSEE OR END-USERS, AND ALL
SUCH WARRANTIES AND CONDITIONS ARE EXPRESSLY AND SPECIFICALLY
EXCLUDED.
b. Defective Software. Should the Product fail to meet the
warranty set forth above, Licensee should return the Product
within the ninety day period. AppSource will then, at is sole
option, either terminate this Agreement (in writing) or
correct the problem such that the Product conforms with its
documentation. If AppSource elects to terminate this Agreement
pursuant to this Paragraph 10.b in the first 90 days,
AppSource shall refund to Licensee any royalties paid for
returned products as of date of termination.
11. LIABILITY AND INDEMNIFICATION
a. Limitations on Liability. AppSource shall not be responsible
for any damages or expenses resulting from alterations or
unauthorized use of the Product, or from the
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unintended and unforeseen results obtained by Licensee
resulting from such use. Termination of the Agreement pursuant
to its various termination terms shall not result in liability
of AppSource to Licensee for damage, loss or expense, and
Licensee expressly waives such claims.
Should any law under which this Agreement be interpreted to
prohibit exclusion of certain conditions or warranties, the
required conditions or warranties shall be deemed included.
The liability of AppSource for any breach of such term,
condition or warranty shall be limited, at the option of
AppSource, to any one or more of the following: (a)
replacement of the Product with equivalent software; (b)
repair of the Product; (c) payment of the cost of replacing
the Product or of acquiring equivalent software; (d) payment
of the cost of having the Product repaired.
AppSource or Licensee shall not be liable for any loss of
earnings, profits or goodwill or other consequential, special
or incidental damage suffered by any person including
Licensee's Clients caused directly or indirectly by the
furnishing of the Product or Licensee Product pursuant to this
Agreement, or for any other loss of business or damage arising
under this Agreement except for such loss or damages caused by
the gross negligence or willful misconduct on the part of
Licensee or AppSource, its agents, employees, independent
contractors or persons acting under his direction or control.
b. Copyright & Patent Infringement. AppSource shall, at its cost,
defend or, at its sole option, settle any claim or suit
brought against Licensee on the issue that the Product
infringes a copyright, patent or other proprietary right of
any third party provided that Licensee (a) notifies AppSource
promptly in writing of any such claim or suit; (b) gives
AppSource full information and assistance in settling and/or
defending the suit; and (c) gives AppSource full authority and
control of the defense and/or settlement of any such action.
AppSource shall not be liable for any costs or expenses
incurred (a) by Licensee without AppSource's prior written
authorization; (b) for any claim based on the use of
combination of the Product with any other software not
provided by AppSource; (c) for any claim based on Licensee's
modification of the Product; (d) from use of other than the
latest available version of the Product, or (e) any
transaction entered into by Licensee relating to the Product
without AppSource's prior written consent which will not be
unreasonably withheld.
If the Product becomes subject to a claim of infringement for
which AppSource may become liable, AppSource may at its option
(a) obtain the right to continue using the Product; (b)
replace or modify the Product to make it non-infringing so
long as the replacement or modification meets substantially
similar specifications; or (c) terminate the licenses. EXCEPT
FOR THESE REMEDIES, APPSOURCE
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SHALL HAVE NO LIABILITY TO LICENSEE OR ITS CUSTOMERS FOR
COPYRIGHT INFRINGEMENT, AND SHALL IN NO INSTANCE HAVE ANY
LIABILITY TO LICENSEE FOR DIRECT, INDIRECT OR CONSEQUENTIAL
DAMAGES FROM INFRINGEMENT OTHER THAN AS SET FORTH IN THIS
SECTION 11.b.
12. PROTECTION OF INTELLECTUAL PROPERTY
Copyrights. Licensee acknowledges AppSource's representation that the
Product and Documentation are protected under the copyright laws of the
United States and certain other countries that have entered into
treaties with the United States, in either registered or unregistered
form. Licensee acknowledges that AppSource owns these copyrights and
has the following exclusive rights with regard to the Product: to
reproduce the Product and documentation in any and all forms; to adapt,
transform or rearrange the Product and documentation; to prepare
derivative software; and to control the distribution of the Product and
documentation. Licensee agrees, and shall have its customers who are
not end-users agree, not to act in contravention of any of AppSource's
rights or to assist others in doing so. Licensee agrees and shall have
its customers agree to preserve all copyright notices in the Product
and documentation. Licensee shall do all things necessary to preserve
AppSource's copyright protection in any country where Licensee licenses
Licensee Products. In the event the Product is licensed in a country
which does not authorize protection of the Product by copyright,
Licensee shall take whatever actions are necessary to preserve
AppSource's rights in the Product under the law of such country.
13. TERM AND TERMINATION
a. Term. This Agreement shall have an initial term from the
effective date and shall expire five (5) years from the
effective date of the Agreement unless terminated earlier as
permitted below.
b. Termination for Cause. AppSource may terminate this Agreement
upon the happening of any of the following events if Licensee
fails to cure the problem within thirty (30) days of notice of
an intent to cancel if not cured:
(i) Licensee fails to make any payment when due; or
(ii) Licensee materially breaches any representation,
warranty, or any material term of this Agreement or
fails to perform any duty required hereunder; or
(iii) Licensee fails to comply with any legal
prerequisites, formalities and/or material government
regulations; or
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(iv) Licensee ceased to conduct its business in a normal
manner; or
(v) Licensee sells, markets or distributes the Product
without Licensee Product.
c. Termination by Licensee. Licensee may terminate this Agreement
upon the happening of one of the following events if AppSource
fails to cure the problem within thirty (30) days of notice of
any intent to cancel if not cured:
(i) AppSource breaches any warranty or material term of
this Agreement or fails to perform any duty required
hereunder; or
(ii) AppSource fails to comply with any legal
prerequisites, formalities, and/or material
government regulation.
(iii) AppSource ceases to conduct its business in a normal
manner, provided that it shall not be grounds for
termination if AppSource merges into another company
and the surviving company continues to conduct
AppSource's business.
d. Effect of Termination. Licensee agrees that upon expiration or
termination of this Agreement under this Paragraph 13,
AppSource is discharged from any further obligations under
this Agreement and Licensee's rights to distribute and license
Software and to use AppSource's trade name and trademarks
shall cease as of the date of such expiration or termination
except as follows: Within thirty (30) days of the delivery by
AppSource or receipt by AppSource of a notice of termination
at the end of any term or expiration, or within thirty (30)
days after automatic termination or termination for cause,
Licensee shall: (1) return to AppSource the master disk(s);
(2) destroy all copies of the Product in whatever form they
exist, including deleting all copies from any electronic
memories; and (3) remove the Product from all Licensee Product
not yet shipped; provided, however, that Licensee shall be
permitted to ship Licensee Product (containing the Product) to
all end users with which it has a contractual obligation to do
so, whether through subdistributors or otherwise (as of the
termination or expiration date). All licenses for the Product
previously given to end-users by or through Licensee, provided
they were in accordance with the terms of this Agreement,
shall continue in effect after termination or expiration of
the Agreement. Licensee may not license any inventory of
Licensee Product containing the Product after the termination
date unless a prior written agreement has been reached with
AppSource.
All requirements of indemnification, payment, and terms
related to use or protection of intellectual property or
confidential information, and provisions
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related to venue and choice of laws, shall survive termination
or expiration of this Agreement. AppSource shall be entitled
to pursue all available remedies against Licensee for breach
of the Agreement or damages caused by Licensee.
f. Continuing Interest. Licensee warrants and acknowledges that
Licensee does not now have, nor shall have after termination
or expiration, any continuing interest or rights to the good
will, assets or proceeds of AppSource, and that AppSource's
sole responsibilities and liabilities are as set forth herein.
AppSource's right to terminate is absolute, and Licensee
acknowledges it has considered the term of the Agreement and
the termination provisions in making expenditures of money and
time in preparing for the performance of this Agreement and
has further considered the possible loss or damage on account
of the loss of prospective profits or anticipated sales or on
account of expenditures, investments, leases, property
improvements or commitments in connection with the good will
or business of Licensee resulting from the ending of this
Agreement. AppSource shall have no liability to Licensee as a
result of termination or expiration of this Agreement in
accordance with its terms, including without limitation claims
relating to loss of profit, goodwill, creation of clientele,
advertising costs, costs of samples or supplies, termination
of employees, employee's salaries or any other items.
14. MISCELLANEOUS PROVISIONS
a. Notices. Unless otherwise stated, all notices required under
this Agreement shall be in writing and shall be considered
given upon personal delivery of the written notice or within
forty-eight (48) hours after deposit in the U.S. mail,
certified or registered, and appropriately addressed to
AppSource or Licensee.
b. Governing Law. This Agreement is made under and shall be
construed in accordance with the laws of the State of Florida,
USA.
c. No Publication. Each party agrees not to publicize or disclose
the terms of this Agreement to any third party without the
consent of the other; provided, however, that the parties have
agreed to the release set forth in Exhibit E attached hereto.
In particular, no press releases shall be made without the
mutual consent of each party.
e. Severability. The terms of this Agreement shall be applicable
severally to each Product and any dispute affecting either
party's rights or obligations as to one or more Product(s)
shall not affect the rights granted hereunder as to any other
Licensed Software.
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f. Heading. The captions of Sections of the Agreement are for
reference only and are not to be construed in any way as
terms.
g. No Assignment. Licensee may not assign or transfer any of the
rights or responsibilities set forth herein without the
express written consent of the other party which shall not be
unreasonably withheld and any purported attempt to do so shall
be deemed void.
h. Dispute Resolutions. Any and all disputes in connection with
or arising out of this Agreement shall, insofar as possible,
be settled amicably by the parties. The parties agree to
negotiate in good faith to settle any such disputes. The
parties further agree to escalate any such disputes to
progressively higher levels of management in their respective
organizations in order to settle such disputes.
i. No Waiver. Neither party's failure to exercise any of its
rights hereunder shall constitute or be deemed a waiver or
forfeiture of any such rights.
j. Exhibits. Each Exhibit referred to herein is hereby
incorporated in full within this Agreement wherever reference
to such Exhibit is made.
k. Modifications. This Agreement may only be modified by a
writing signed by an authorized representative of both
AppSource and Licensee.
l. Entire Agreement. This document represents the entire
agreement between the parties as to the matters set forth and
integrates all prior discussion or understanding between them.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their
duly authorized representatives on the date first written above.
AppSource Licensee
By: /s/ Richard Daley By: /s/ John Freund
----------------------------- -----------------------------------
Typed Name: Richard Daley Typed Name: John Freund
--------------------- ---------------------------
Title: President Title: Vice President, Marketing
-------------------------- --------------------------------
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EXHIBIT A
SOFTWARE PRODUCTS
1. PRODUCT
WIRED for OLAP for Windows
2. DOCUMENTATION
Documentation. As used in this agreement, "Documentation"
shall mean such user and technical manuals and other
documentation that AppSource ordinarily makes available with
the Product. Documentation will describe all features of the
Product and consist of:
a. WIRED for OLAP Manual in its existing form.
3. LICENSEE PRODUCTS
ShowCase Analyzer for Microsoft Windows which incorporates the
Product
4. DELIVERY SCHEDULE
All items in 1 and 2 to be delivered within ten (10) working
days of any order placed.
5. SPECIFICATIONS
WIRED For OLAP Version 1.0 for Windows
Runs under Windows 3.1 or Higher
Compatible with DOS 3.1 or higher
Minimum 8 MB RAM
Minimum 486 based processor
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EXHIBIT B
AppSource MARKS
1. AppSource MARKS
Manual and software copyright 1995 by AppSource. All rights reserved.
2. STANDARDS OF QUALITY
a. Software containing any of AppSource's Marks shall be
designed, manufacture and reproduced to exceed or meet the
quality of comparable products manufactured or reproduced by
AppSource, and will meet any additional specifications defined
by AppSource (in consultation with Licensee) to be necessary
in view of conditions relating to the availability of
materials, processes, labor and the like.
b. AppSource Marks may only be reproduced in accordance with the
standards supplied by AppSource.
c. Upon request by AppSource, Licensee will promptly submit to
AppSource (or AppSource's designated representative) samples
of any Software containing AppSource's Marks for inspection
and testing.
d. In the event that AppSource determines that any Software fails
to meet these Standards of Quality, AppSource may give notice
of breach. Upon notice of breach, Licensee shall immediately
cease the use of AppSource's Marks on or in relation to those
Licensed Software products identified in the notice of breach
which fail to meet the Standard of Quality. Licensee shall
remove all labels or other indications of AppSource's Marks
already placed on such products or packages thereof in its
possession or control prior to shipping or transferring these
products to a third party.
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