FORM OF SOFTWARE SOURCE CODE LICENSE AGREEMENT
THIS SOFTWARE SOURCE CODE LICENSE AGREEMENT ("License Agreement"), made
this ___ day of ________, 1998, between DATA BUSINESS FORMS, LTD., a Canadian
corporation ("Licensor"), and U.S. OFFICE PRODUCTS COMPANY, a Delaware
corporation ("Licensee");
W I T N E S S E T H:
For and in consideration of the mutual promises and covenants set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Definitions
The following definitions apply to this License Agreement:
(a) "Software" means the computer program owned by Licensor or a
subsidiary or affiliate of Licensor known as "Imagenet Document Manager".
(b) "Source Code" means all or any part of the program listings used by
Licensor or any subsidiary or affiliate of Licensor for the creation and
execution of the Software as of the date of this Agreement, as described in
Exhibit A.
(c) "Derived Applications" mean executable binaries, developed in whole
or in part by Licensee from the Source Code.
(d) "Derived Applications Source Code" means all or any part of the
program listing and other source materials for Derived Applications which are
created or derived in whole or in part from the Software, the Source Code, any
Derived Application or any other Derived Applications Source Code.
2. License
(a) Subject to the terms and conditions of this License Agreement,
Licensor grants Licensee a non-transferable, nonexclusive license to use the
Source Code for the sole purpose of developing and creating Derived
Applications. Licensee shall hold and keep the Source Code in strictest
confidence and disclose the Source Code to, and permit its use by, only those of
its employees who (i) need to know and use the Source Code for such purpose, and
(ii) have been informed of and agreed to the restrictions on disclosure and use
of the Source Code contained in this License Agreement.
(b) Licensee shall own only the magnetic or other physical media on
which the Source Code is recorded or fixed. Licensor retains all ownership
rights in and to the Source Code and all copies of the Source Code, regardless
of the form or media in or on which the original and such copies may
subsequently exist. This license is not a sale of the Source Code or any copy
thereof. Licensee acknowledges and agrees that it has no license or other
rights, pursuant to this License Agreement or otherwise in or to the Software or
(except as specifically provided in this License Agreement) the Source Code.
(c) Licensor has no obligation to provide to Licensee any revised,
enhanced, improved, or updated versions of the Source Code. Licensee agrees to
return to Licensor (or, at Licensor's direction, destroy) the original and all
existing copies of the Source Code after receiving notice of Licensor's
termination of this License Agreement.
(d) Unless earlier terminated by Licensor in accordance with its terms,
this License Agreement shall be deemed effective from the date Licensee receives
all or any part of the Source Code and shall continue for so long as Licensee or
any successor of Licensee continues to use or possess the Source Code and/or any
Derived Applications.
3. Restrictions on Use and Disclosure
(a) Licensee shall use the Source Code for the purpose set forth in
paragraph 2(a) above and for no other purpose, and shall at all times take all
necessary steps to protect the Source Code and Derived Applications Source Code
from distribution, theft or use contrary to the terms of this License Agreement.
In extension, and not limitation, of this obligation:
(i) Licensee shall protect and safeguard the Source Code and
Derived Applications Source Code in the same manner and to at least the same
extent as Licensee protects and safeguards its own proprietary trade secret
information, and take all additional measures and precautions requested by
Licensor to maintain the secrecy of the Source Code and Derived Applications
Source Code;
(ii) Licensee shall disseminate the Source Code within
Licensee's organization only on a "need to know" basis, and only to the extent
required for the permitted use of the Source Code specified in paragraph 2(a);
(iii) Licensee shall not disclose all or any part of the
Source Code or any Derived Applications Source Code to any subsidiary or parent
company or other affiliate of Licensee, or to any customer or potential
customer, or to any other third party in any manner, without first obtaining the
specific prior written consent of Licensor, which may be granted or withheld by
Licensor in its sole discretion; and
(iv) Licensee shall be fully responsible for any loss or
damage suffered by Licensor as a result of misuse or unauthorized disclosure of
all or any part of the Source Code or any Derived Applications Source Code by
Licensee or any party whose knowledge or possession of the same came from or
through Licensee.
(b) Upon receiving notice of any legal demand, request or requirement
for disclosure of all or any part of the Source Code or any Derived Applications
Source Code, Licensee shall: (i) immediately notify Licensor of the existence,
terms and circumstances of such demand, request or requirements; (ii) consult
with Licensor on the advisability of taking legally available steps to resist or
narrow such demand, request or requirement; and (iii) assist Licensor in taking
any such steps Licensor deems to be advisable. If any Source Code or Derived
Applications Source Code must be disclosed as a result of any such demand,
request or requirement, Licensee shall disclose only that portion of the same
which it is advised by qualified legal counsel is legally required to be
disclosed, and exert its best efforts to obtain written assurance acceptable to
Licensor that confidential treatment will be accorded to the Source Code or
Derived Applications Source Code disclosed.
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(c) For a period of 30 months following the date hereof, Licensee shall
not use or permit use of the Source Code or any Derived Applications or Derived
Applications Source Code for the sale, distribution or management of business
forms, envelopes, commercial printing or print-on-demand services (collectively,
"Restricted Purposes"). During such 30-month period, Licensee may use the Source
Code to develop Derived Applications for Restricted Purposes, but may not offer
such Derived Applications to customers or otherwise use such Derived
Applications until after such 30-month period.
(d) Licensee shall not duplicate, disassemble, decompile, or otherwise
reverse engineer, or, other than the Derived Applications, create any derivative
works from, the Source Code or Software or use or attempt to obtain any
techniques, algorithms, processes, trade secrets, or proprietary information
contained in the Source Code or Software.
(e) Licensee shall own and retain all ownership rights in and to
Derived Applications and Derived Applications Source Code, except for ownership
rights in portions of the Source Code incorporated into or made part of Derived
Applications Source Code, which shall at all times be and remain the sole
property of Licensor or the subsidiary or affiliate of Licensor owning the
Source Code. Except as aforesaid, Licensor acknowledges and agrees that it has
no license or other rights, pursuant to this License Agreement or otherwise, in
or to the Derived Applications or the Derived Applications Source Code. In no
event shall Licensee incorporate any portion of the Software or Source Code into
any Derived Application. Licensee shall ensure that all Derived Applications
Source Code and media and packaging for it bears a legend acceptable to Licensor
acknowledging use of the Source Code therein.
4. Possession and Copying
(a) Licensee agrees that the Source Code will only be displayed on, or
used on, computers under the direct control and use of Licensee as specified on
Exhibit B. Licensee agrees to keep the original and all backup copies of the
Source Code in the possession or direct control of Licensee. Any backup copies
made by Licensee shall be complete copies of the entire Source Code. Partial
duplication or copying is not permitted.
(b) Licensee agrees to place a label on the outside of the physical
media containing backup copies showing the program name and Licensor's copyright
and trademark notices, in the same form as they appear on the original Source
Code media furnished by Licensor. All originals and copies of Derived
Applications and Derived Applications Source Code shall be clearly labeled to
indicate that they were created in whole or part from the Software and that
certain portions of them are subject to Licensor's copyright and other
proprietary rights.
(c) Licensee shall (i) notify Licensor in writing of all copies made of
the Source Code and by whom held and where used, and (ii) provide to Licensor a
description of all Derived Applications and Derived Applications Source Code
created from the Source Code, or any portion thereof.
(d) Licensor shall have the right at all reasonable times to enter
Licensee's facility and interview Licensee's officers and employees, for the
purpose of verifying Licensee's compliance with this License Agreement, and
Licensee shall provide access to its facilities and personnel, and otherwise
cooperate fully with any efforts by Licensor to verify Licensee's compliance
with this License Agreement.
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5. Transfer or Reproduction
Licensee shall not sublicense, rent, lease, transfer, reproduce,
display or otherwise distribute the Source Code, or any portion thereof, except
as specifically provided in this License Agreement. Licensee may not transfer
any copy of the Source Code, or any portion thereof, to another person or entity
outside of the Licensee's immediate organization, on either a permanent or a
temporary basis. Licensee understands that unauthorized reproduction of copies
of the Source Code or unauthorized transfer of any copy of the Source Code may
subject Licensee to criminal and civil actions and liability, including, without
limitation, suit for damages, injunctive relief, and attorney fees.
6. Default
Licensor shall be entitled to immediately terminate this License
Agreement and all rights of Licensee herewith, in addition to all other rights
and remedies at law or in equity it may have, said rights and remedies being
cumulative, in the event Licensee (i) violates any provision of this License
Agreement and such violation continues for a period of ten (10) days following
the earlier of (A) Licensor providing Licensee written notice of such violation
and of Licensor's intention to terminate in the event such violation is not
remedied, or (B) Licensee or Licensee's employees having actual knowledge of
such violation, or (ii) becomes insolvent or initiates or has initiated against
it a bankruptcy or other insolvency proceeding.
7. Price and Payment
Licensee shall make payment to Licensor for the license and other
rights granted to it by this License Agreement pursuant to the fees and payment
`terms set forth on Exhibit C. In addition to license fees, Licensee shall pay
all taxes (including but not limited to, sales, use, privilege, ad valorem and
excise taxes, but excluding income taxes of Licensor) and duties paid or payable
by Licensor , however designated, levied or based on amounts payable to
Licensor, under this Agreement. Unless expressly modified in writing, all
payments hereunder shall be made in U.S. dollars and shall be payable within
thirty (30) days of the date due or receipt of any pertinent invoice. On any
invoice not paid within such thirty (30) day period, Licensee shall pay a
service charge accruing thereafter until the date of payment equal to the lesser
of (i) the rate of eighteen percent (18%) per annum, or (ii) the maximum lawful
interest rate applicable.
8. Patent/Copyright Infringement
If, as a result of any claim of infringement against any patent,
copyright, license or other property right, Licensee is prohibited from using
the Source Code, or if the Source Code becomes, or Licensor believes it is
likely to become, the subject of a claim of infringement, Licensee shall cease
use of the Source Code in its entirety and Licensor may, at Licensor's option,
either (i) procure or offer Licensee the opportunity to procure the additional
rights necessary to continue to use the Source Code for the purpose permitted by
this License Agreement; (ii) offer to replace or modify the Source Code, at
Licensor's cost and expense, so as to make it non-infringing; or (iii) terminate
this License Agreement on thirty (30) days' written notice. Licensee shall
notify Licensor promptly in writing of any claim or action of infringement of
which it has knowledge. The foregoing states the entire liability of Licensor
with respect to infringement of any copyrights, patents, licenses, trade secrets
or other property rights relating to the Source Code.
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9. Warranty Limitation and Disclaimer of Liability
Licensor has no control over the conditions under which Licensee uses
the Source Code and does not warrant the performance or results that may be
obtained by its use. Licensor shall have no obligation to correct any
deficiency. The parties understand and agree that this License Agreement does
not include any upgrades, enhancements, updates, new versions or the like of the
Source Code, or any obligation on the Licensor's part to perform any
maintenance. LICENSEE ACCEPTS THE SOURCE CODE "AS IS" AND THERE ARE NO
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OF
TITLE OR AGAINST INFRINGEMENT OF PATENT, COPYRIGHT OR OTHER RIGHTS OF THIRD
PARTIES. LICENSOR SHALL HAVE NO LIABILITY FOR SPECIAL, INDIRECT, DIRECT,
CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OR FOR ANY DAMAGES WHATSOEVER
RESULTING FROM BREACH OF WARRANTY, LOSS OF USE, DATA OR PROFITS, OR FOR CLAIMS
BY THIRD PARTIES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE
OR PERFORMANCE OF THE SOFTWARE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE
CONTRARY, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY BREACH OF THIS AGREEMENT
OR NEGLIGENCE. Licensee shall indemnify and hold Licensor harmless against any
claims, causes of action, damages, liabilities, or demands that stem from, or
are related to, Licensee's use of the Source Code, and/or the use by Licensee or
any third parties of any Derived Applications or Derived Applications Source
Code.
10. U.S. Government Rights
If any Derived Application or Derived Applications Source Code, or any
portion thereof, is acquired by or on behalf of the U.S. Government, Licensee
shall assure that (i) it is so acquired as restricted computer software as
defined at FAR 52.227-19(a), or as commercial computer software or commercial
computer software documentation as defined at DFARS 252.227-7014(a); and (ii) it
is acquired subject to the terms of this License Agreement and to the
restrictions on use, duplication and disclosure as set forth in FAR
52.227-19(c)(1) and (2), DFARS 252.227-7202-3(a), or FAR 12.212, as applicable.
11. Notices
All communications or notices permitted or required to be given or
served under this License Agreement shall be in writing, shall be delivered to
the appropriate party's address as set forth below, and shall be deemed to have
been duly given or served if delivered in person or within three (3) days of
being deposited in the United States mail, certified mail, return receipt
requested as follows:
If to Licensor: Workflow Management, Inc.
240 Royal Palm Way
Palm Beach, Florida 33480
(561) 659-6551
Attn: Claudia S. Amlie, Esq.
Vice President and General Counsel
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If to Licensee:
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12. Arbitration
Except for the right of either party to apply to a court of competent
jurisdiction for a temporary restraining order, injunction or other provisional
remedy or equitable relief to preserve the status quo or prevent irreparable
harm pending the selection and confirmation of a panel of arbitrators, any
controversy or claim arising out of or relating to this Agreement shall be
settled by arbitration in Norfolk, Virginia in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment upon the
award rendered by the arbitrators may be entered in any court in the City of
Norfolk, Virginia having jurisdiction thereof. Arbitration shall be conducted by
a panel of three members. Licensor and Licensee each shall select one member and
the third member, who shall be the chairman, shall be selected by agreement
between the other two members. The chairman shall be an attorney at law, and the
other members shall have a background or training in computer law, computer
science or marketing of computer products. The arbitrators shall include in any
award the prevailing party's reasonable attorneys' fees and costs, and the
prevailing party in any legal action to enforce its rights under this or any
other provision of this License Agreement shall likewise be entitled to recover
its reasonable attorney's fees and costs from the other party.
13. General Conditions
This License Agreement shall be governed by, and construed in
accordance with, the substantive laws of the Commonwealth of Virginia. Licensee
and Licensor irrevocably submit to jurisdiction in, and agree that any action
brought by Licensee arising out of this License Agreement shall be brought in,
the Circuit Court or Federal District Court, as the case may be, in Norfolk,
Virginia. The delay or failure of either party to enforce any of the provisions
of this License Agreement shall not be construed to be a waiver of any right of
that party. The termination of this License Agreement shall not affect the
provisions of this License Agreement, which by their terms and meaning are of a
continuing nature. This License Agreement sets forth the entire understanding
and agreement between Licensor and Licensee with respect to its subject matter
and merges any and all prior oral or written communications and agreements
between them with respect to the Source Code. If any provision of this License
Agreement shall be held illegal, invalid, or unenforceable, the remaining
provisions shall remain in full force and effect. Licensee may not assign or
transfer any of its rights or obligations under this License Agreement without
the express written consent of Licensor. This License Agreement shall be binding
upon and inure to the benefit of Licensor and Licensee and their respective
successors and permitted assigns. The paragraph headings in this License
Agreement are for convenience only, form no part of this License Agreement, and
do not affect its interpretation.
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WITNESS the following signatures, thereunto duly authorized:
LICENSOR:
WORKFLOW MANAGEMENT, INC.,
a Delaware corporation
By:
-----------------------------------------
Its:
LICENSEE:
U.S. OFFICE PRODUCTS COMPANY,
a Delaware corporation
By:
-----------------------------------------
Its:
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