EXHIBIT 10.26
LICENSE AGREEMENT
This License Agreement (this "Agreement") is made and entered into this 2nd day
of Dec., 1998, between COMPS INFOSYSTEMS, INC., having an office at Suite 100,
9888 Carroll Centre Road, San Diego, California USA 92126 ("LICENSEE") and
NCOMPASS LABS INC., having an office at Second Floor, Hudson House, 321 Water
Street, Vancouver, British Columbia Canada V6B 1B8 ("NCompass").
RECITALS
A. LICENSEE and NCompass are manufacturers of computer software;
B. NCompass is the manufacturer and owner of a certain computer software
program known as the NCompass ScriptActive(TM) ActiveX(TM) Plug-in;
C. LICENSEE is the manufacturer of certain computer software programs which use
ActiveX technology ("ActiveX");
D. LICENSEE desires to obtain, and NCompass is willing to grant, a license to a
modified version of the NCompass ScriptActive(TM) ActiveX(TM) Plug-in to
enable LICENSEE's end users using a Netscape browser platform to view
LICENSEE's Spectrum software product and/or any successor products.
AGREEMENT
IN CONSIDERATION OF the premises and mutual covenants contained in this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. INTERPRETATION
1.1 DEFINITIONS. In this Agreement, the following words shall have the
following meanings:
(a) "CONFIDENTIAL INFORMATION" shall mean all information, documentation,
knowledge or data of an intellectual, technical, scientific,
commercial or industrial nature relating to the business or
Intellectual Property of the disclosing party, including, without
limitation, the Source Code of the Licensed Material and information
of a financial, planning, cost, pricing or marketing nature which
derives actual or potential value from not being generally known or
reasonably ascertainable, whether developed by the disclosing party or
received by the disclosing party from a third party in circumstances
which oblige it to protect such information from unauthorized use or
disclosure, but shall not include any information which:
(i) now or hereafter becomes generally known to the public or is
generally known within the computer software industry, without
breach of this Agreement;
(ii) can be proved by the receiving party to have been known by it
before disclosure;
(iii) can be proved by the receiving party to have been received by a
third party without breach of a duty of confidentiality or
wrongful appropriation of trade secrets;
(iv) can be proved by the receiving party to have been developed by
it independently of any disclosure hereunder; or
(v) is required to be disclosed by law, court order or regulatory
process.
(b) "INTELLECTUAL PROPERTY" shall mean any discoveries, improvements,
ideas, patents, copyrights, trade marks, industrial designs, mask
works, trade secrets, goodwill and the like, including, without
limitation, computer programs, source codes, technical writings,
pictorial reproductions, drawings and other graphic representations,
whether or not copyrighted or patented or registered or protected, or
capable of such registration or protection.
(c) "LICENSED MATERIAL" shall mean the Source Code to the NCompass
ScriptActive(TM) ActiveX(TM) Plug-in installation program and the
Object Code to the modified version of the NCompass ScriptActive(TM)
ActiveX(TM) Plug-in (customized to function only with the LICENSEE
Product), which is more fully described in Schedule A attached to
this Agreement, together with all Updates to which LICENSEE is
entitled under the terms of this Agreement.
(d) "OBJECT CODE" shall mean computer code in a form for execution on a
computer and/or the code that results from running Source Code through
a compiler.
(e) "SOURCE CODE" shall mean computer code in high-level, human readable
language, including comments, and all tools and documentation
reasonably necessary to build and/or modify such code.
(f) "TECHNICAL SUPPORT SERVICES" shall mean the technical support services
provided by NCompass to LICENSEE as set out in Schedule B.
(g) "BUG" shall mean any failure of the Licensed Materials to function
within the specifications as set forth in Schedule A and the
documentation accompanying the Licensed Materials, except for those
failures which do not cause loss of end user data and do not prevent
end users from performing production tasks or for which there is a
known work-around which has been provided to LICENSEE.
(h) "DEVELOPMENT SERVICES" shall mean development services which generate
enhancements to the Licensed Material specific to the requirements of
LICENSEE (including development services required to enable LICENSEE's
end users using a Netscape Navigator platform to view any successor
products to LICENSEE's software product) and which are in addition to
the functionality described in Schedule A and Updates, as described
herein.
(i) "UPDATES" shall mean all maintenance releases, releases supporting
any and all releases of Netscape Navigator or Netscape's WWW browser
which are made commercially available during the terms of this
Agreement, patches, Bug fixes and error corrections to the Licensed
Material that do not provide significant additional functionality to
the Licensed Material and, for avoidance of doubt, does not include
enhancements generated by Development Services.
(j) "LICENSEE PRODUCT" shall mean LICENSEE's Spectrum software product
and/or any successor products which use ActiveX technology.
1.2 CURRENCY. All references to monetary amounts in this Agreement shall mean
the lawful currency of the United States of America and all payments
hereunder shall be made in such currency.
2. GRANT OF RIGHTS AND OBLIGATIONS
2.1 GRANT OF LICENSE. NCompass hereby grants to LICENSEE a non-transferable,
non-exclusive, worldwide license directly and through third parties
(including the right of any third party at any tier to further sublicense
solely in conjunction with the distribution of the LICENSEE Product) to
reproduce, distribute, license, sell, rent and lease copies of the Licensed
Material in Object Code form only, and derivative works
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thereof, as a component of the LICENSEE Product for a 12 month period
commencing upon the date of execution of this Agreement (the "Initial
Term").
2.2 RENEWAL. Provided that LICENSEE is not in material breach of this
Agreement, LICENSEE may renew the grant of license for a further 12 month
period upon expiration of the Initial Term (the "Renewal Term") subject to
the terms contained herein and by providing NCompass with written notice
thereof at least 30 days prior to expiration of the Initial Term and by
paying to NCompass the renewal license fee at a price to be agreed upon
between the parties.
2.3 MANUFACTURING COSTS. Except as otherwise set out in this Agreement,
NCompass shall not be responsible for any manufacturing or distribution
costs of LICENSEE relating to the use of the Licensed Material by LICENSEE.
LICENSEE shall bear all costs of reproducing and distributing the Licensed
Material in accordance with the terms and conditions of this Agreement.
3. LICENSE FEE
3.1 LICENSE FEE. LICENSEE shall pay to NCompass a royalty (the "License Fee")
for all copies of the LICENSEE Product sold by LICENSEE as follows:
(a) within 30 days of execution of this Agreement, LICENSEE shall make the
first nonrefundable royalty prepayment of three thousand six hundred
(US$3,600) against the first 1,000 client computers upon which the
Licensed Material in installed ("Copies") during the Initial Term;
(b) within 120 days of execution of this Agreement, LICENSEE shall make
the second nonrefundable royalty prepayment of three thousand six
hundred (US$3,600) against the first 1,000 client computers upon which
the Licensed Material is installed ("Copies") during the Initial Term;
(c) LICENSEE shall pay NCompass a royalty of four dollars (US$4.00) per
copy for the next 2,000 Copies or any portion thereof of Copies
licensed during the Initial Term; and
(d) LICENSEE shall pay NCompass a royalty of three dollars (US$3.00) per
copy for any copies in excess of the first 3,000 Copies licensed
during the Initial Term.
LICENSEE agrees to furnish to NCompass, within 30 days of the end of each
three month period following execution of this Agreement, a written report
certified by the Chief Financial Officer of LICENSEE verifying the number
of Copies licensed during the preceding three month period, and to make
full payment of all monies due NCompass within 30 days thereafter.
3.2 TAXES. All amounts payable under this Agreement do not include taxes.
LICENSEE shall be responsible for the payment of any federal, provincial,
state or local taxes which may apply to the payments hereunder; provided,
that LICENSEE shall not be responsible for the payment of any taxes based
on the income or revenue of NCompass.
3.3 MODIFICATIONS. Except as expressly authorized by NCompass in writing,
LICENSEE shall not, and shall ensure that its sublicensees, employees,
agents or others acting on its behalf, do not:
(a) modify, translate, reverse engineer, decompile, disassemble, create
derivative works of or copy the Licensed Material or any accompanying
documentation; and
(b) remove, alter, cover, or fail to reproduce any copyright notices or
other proprietary rights, notices, placed on or embedded in the
Licensed Material by NCompass.
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4. DELIVERY OF LICENSED MATERIAL
4.1 DELIVERY. NCompass shall deliver the Licensed Material to LICENSEE
electronically within seven business days of execution of this Agreement,
in such form and content as instructed by LICENSEE. The Licensed Material
shall be deemed delivered upon delivery by NCompass to LICENSEE of the
Licensed Materials and LICENSEE's successful download of the Licensed
Materials.
4.2 ACCEPTANCE. Upon receipt of the Licensed Material, LICENSEE shall evaluate
the Licensed Material and shall submit a written notice of acceptance or
written notice of rejection to NCompass within 15 business days of receipt
by LICENSEE of the Licensed Material (the "Acceptance Period"). Conformity
to the specifications and warranties set out in this Agreement shall solely
determine LICENSEE's right to accept or reject the Licensed Material.
4.3 DEEMED ACCEPTANCE. If LICENSEE fails to notify NCompass of acceptance
within the Acceptance Period, or notifies NCompass of the acceptance of the
Licensed Material within the Acceptance Period but fails to provide
confirmation in writing, the Licensed Material shall be deemed accepted and
such an event shall constitute approval, sign-off and acceptance by
LICENSEE of the Licensed Material provided by NCompass under this
Agreement.
4.4 NON-COMPLIANCE. If LICENSEE provides NCompass with a notice of rejection
within the Acceptance Period stating that the Licensed Material does not
comply with the specifications or warranties set out in this Agreement, and
provides NCompass with a full disclosure of how the Licensed Material is
unsatisfactory, NCompass shall promptly correct such portion of the
Licensed Material. If NCompass fails to correct any portion of the Licensed
Material within 15 days after receipt of the notice of rejection, or fails
to deliver any portion of the Licensed Material within the dates specified
in the delivery schedule set out in Article 4.1 of this Agreement, LICENSEE
may, at LICENSEE's option:
(a) extend the correction or delivery period for such portion of the
Licensed Material; or
(b) return the Licensed Material to NCompass and receive a full refund of
any monies paid and terminate this Agreement with no further
obligation to NCompass.
This is the sole remedy available to LICENSEE in connection with such
termination.
5. TECHNICAL SUPPORT, MAINTENANCE AND DEVELOPMENT SERVICES
5.1 INITIAL TERM SUPPORT SERVICES. NCompass shall provide to LICENSEE, during
the Initial Term, the Technical Support Services, for a fee in the amount
of two thousand eight hundred dollars (US$2,800) for the Initial Tenn.
Within 30 days of execution of this Agreement, LICENSEE shall make the
first installment payment against the Technical Support Services fee of one
thousand four hundred dollars (US$1,400) and within 120 days of execution
of this Agreement, LICENSEE shall make the second installment payment
against the Technical Support Services fee of one thousand four hundred
dollars (US$1,400).
5.2 RENEWAL TERM SUPPORT SERVICES. LICENSEE may renew the Technical Support
Services provided by NCompass under Article 5.1 for the Renewal Term, upon
written notice at least 30 days prior to expiration of the Initial Term.
LICENSEE shall pay to NCompass for the Renewal Term, a fee in the amount of
two thousand eight hundred dollars (US$2,800), for Technical Support
Services. Such fee shall be due and payable within 60 days of the
commencement of the Renewal Term.
5.3 AUTHORIZED REPRESENTATIVES. LICENSEE shall appoint up to three persons and
NCompass shall appoint up to three persons as their respective authorized
support representatives who shall deal exclusively in the receipt and
provision of the Technical Support Services.
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5.4 BEST EFFORTS. In providing the Technical Support Services, NCompass shall
cooperate with LICENSEE and use its best efforts to resolve reported
support issues or correct errors within its control in the Licensed
Material and will issue such materials as are required to effect such
corrections.
5.5 NO ADDITIONAL SUPPORT. LICENSEE shall be responsible for all technical
support services provided to its sublicensees, distributors and end users.
NCompass shall not be responsible for the provision of Technical Support
Services or any other technical support services to any person other than
LICENSEE. LICENSEE shall not direct its sublicensees, distributors or end
users to contact NCompass without the prior consent of NCompass.
5.6 UPDATES. LICENSEE acknowledges and agrees that NCompass may, from time to
time, develop Updates. For so long as LICENSEE is paying to NCompass the
fee for Technical Support Services, NCompass shall provide Updates to
LICENSEE at no additional cost. NCompass shall provide LICENSEE advance
notice of the release of any Update and shall promptly provide LICENSEE
with copies of such Updates upon their initial release.
5.7 TRAINING. During the Initial Term and the Renewal Term, NCompass shall
provide to LICENSEE training in the use of the Licensed Material at the
rate of one hundred and twenty-five dollars (US$125) per hour. LICENSEE
shall also reimburse NCompass for its reasonable travel and accommodation
expenses incurred in providing such training.
5.8 DEVELOPMENT SERVICES. During the Initial Term and the Renewal Term,
NCompass shall make available to LICENSEE, software development services
relating to enhancements of the Licensed Material specific to the
requirements of LICENSEE and in addition to the functionality as set out in
Schedule A, at the rate of one hundred and twenty-five dollars (US$125) per
hour.
6. PROPRIETARY RIGHTS AND OBLIGATIONS
6.1 ACKNOWLEDGMENT OF RIGHTS. LICENSEE hereby acknowledges and agrees that the
Licensed Material embodies NCompass' Intellectual Property and all right,
title and interest in and to NCompass' Intellectual Property, including the
Licensed Material. LICENSEE agrees that such rights shall remain the sole
and exclusive property of NCompass and no rights therein shall vest in
LICENSEE, except as expressly set out in this Agreement. LICENSEE shall
indicate to each of its sublicensees that NCompass' Licensed Material is
owned by or licensed to NCompass.
6.2 PROTECTION OF CONFIDENTIAL INFORMATION. Except as provided in this
agreement, LICENSEE and NCompass shall maintain all Confidential
Information of the other party disclosed to it in strict confidence and
shall not disclose same to any person except to its employees or
contractors having a need to know under this Agreement. LICENSEE and
NCompass agree to take all safeguards and actions to maintain the
confidentiality of the other party's Confidential Information to the extent
normally taken in protecting their own Confidential Information and in any
event to a commercially reasonable standard.
6.3 PROTECTION OF INTELLECTUAL PROPERTY. LICENSEE and NCompass agree to take
all safeguards and lawful actions reasonably requested by the other party
to protect the Intellectual Property of the other party, including, without
limitation, promptly notifying the other party upon becoming aware of:
(a) any notices, actions, threats, or allegations regarding the Licensed
Material or any of the other party's Intellectual Property; or
(b) any infringement or suspected infringement by any third parties of
any of the other party's Intellectual Property.
Each party agrees to provide, at the other party's expense, all reasonable
assistance in the registration of any of the other party's Intellectual
Property in any jurisdiction.
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6.4 USE OF NCOMPASS TRADEMARKS. "NCompass", "ScriptActive", and all other
trademarks and trade names adopted by NCompass to identify the Licensed
Material and other NCompass products or services are and shall remain the
property of NCompass and the benefit and goodwill accruing from the usage
of such trademarks and trade names by LICENSEE shall belong to NCompass.
LICENSEE shall have the right to use the trademarks "NCompass" and
"ScriptActive" solely to refer to the Licensed Material, provided that
LICENSEE shall:
(a) comply with NCompass' trademark guidelines as set forth on Schedule C
attached hereto;
(b) include, in any use of any trademark of NCompass, the symbol "TM" and
the following statement "___________ is a trademark of NCompass Labs
Inc., Vancouver, Canada";
(c) not use the trademarks "NCompass" and "ScriptActive" as any portion
of the LICENSEE trade name or for any of LICENSEE's products;
(d) at no time challenge or assist others in challenging any NCompass
trademark or the registration thereof;
(e) at no time attempt to register any trademarks or trade names
confusingly similar to any NCompass trademark or trade name;
(f) at no time register, translate or substitute any NCompass trademark or
trade names anywhere in the world without NCompass' express prior
written consent; and
(g) include within the packaging of the LICENSEE Product, a graphic
design of the NCompass logo and text identifying NCompass as the
supplier of the Licensed Material.
NCompass shall provide copies of its trademark guidelines as they may be
modified from time to time in quantities reasonably requested by LICENSEE,
and LICENSEE may distribute copies of such guidelines to users of the
Licensed Material. LICENSEE shall have no other rights to use the
trademarks or trade names except as provided herein.
6.5 USE OF LICENSEE LOGO. LICENSEE hereby grants to NCompass a non-
transferable, non-exclusive, fully paid-up, worldwide license to exhibit
the LICENSEE logo on the NCompass Web site, until such right is revoked by
LICENSEE by notice in writing to NCompass. NCompass acknowledges and agrees
that the logo shall remain the property of LICENSEE and that any benefit
and goodwill accruing from the usage of such logo by NCompass shall belong
to LICENSEE. NCompass shall have no other rights to use the logo, except as
provided herein.
6.6 MARKETING RESPONSIBILITIES OF LICENSEE. In marketing and selling the
Licensed Material, LICENSEE shall take all reasonable steps to avoid
deceptive or misleading practices which may be detrimental to NCompass or
to the market for the Licensed Material.
7. REPRESENTATIONS AND WARRANTIES
7.1 NCOMPASS REPRESENTATIONS AND WARRANTIES. NCompass represents and warrants:
(a) that it has the right and power to license the Licensed Material;
(b) that the execution and delivery of this Agreement does not violate or
constitute a breach of the terms of any agreement, document, charter
or by laws to which NCompass is a party or otherwise bound;
(c) to the best of its knowledge and belief, the Licensed Materials do not
infringe any patent, copyright, trademark, trade secret or other
intellectual property rights of any third party;
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(d) that it has full corporate right, power and authority to enter into
this Agreement and performs the acts required of it hereunder; and
(e) neither this Agreement (or any term hereof) nor the performance of its
obligations under this Agreement, is restricted by, contrary to, in
conflict with, ineffective under, requires registration or approval or
tax withholding under any law or regulation.
7.2 LICENSEE REPRESENTATIONS AND WARRANTIES. LICENSEE represents and warrants:
(a) that it has full corporate right, power and authority to enter into
this Agreement and performs the acts required of it hereunder; and
(b) neither this Agreement (or any term hereof) nor the performance of its
obligations under this Agreement, is restricted by, contrary to, in
conflict with, ineffective under, requires registration or approval or
tax withholding under any law or regulation.
8. SOFTWARE WARRANTY
8.1 SOFTWARE FUNCTIONALITY. NCompass warrants that the Licensed Material, if
operated as directed, will substantially achieve the functionality
described in Schedule A and in its documentation. NCompass does not warrant
that the use of the Licensed Material will be uninterrupted or that the
operation of the Licensed Material will be error-free or secure.
8.2 SOFTWARE REPRODUCTION. NCompass accepts no responsibility for defects in
material and workmanship associated with the reproduction of the Licensed
Material by LICENSEE, nor in the media containing the Licensed Material
provided by LICENSEE to its sublicensees and end users.
8.3 INDEMNITY. NCompass shall indemnify and hold LICENSEE harmless and will
defend, at its own expense (including reasonable legal fees of LICENSEE),
any threatened or actual suit against LICENSEE based upon a claim that the
Licensed Material, its use or the documentation therefor infringes upon a
patent, copyright, trade secret or other intellectual property right of any
third party, and will pay any settlement, costs and damages awarded;
provided that:
(a) such infringement has not resulted from a modification of the Licensed
Material which has been effected by or for LICENSEE including without
limitation as a result of the provision of Development Services. For
avoidance of doubt, the indemnification obligation of NCompass, if
any, relating to the provision to LICENSEE of Development Services may
be addressed by the parties in any separate agreement relating to the
provision of Development Services;
(b) NCompass is promptly notified in writing of any notice received by
LICENSEE of any claim or of any threatened or actual suit, but the
failure to give such prompt notice shall not relieve NCompass of its
obligations hereunder unless such delay results in a material
prejudice to the defense thereof;
(c) NCompass shall have the right to control the defense of any claims,
suits or proceedings and LICENSEE shall not settle any claims, suits,
or proceedings without NCompass' prior consent;
(d) at NCompass' request and expense, LICENSEE shall provide all
reasonable aid and assistance for the defense of any such claims,
suits or proceedings;
(e) such infringement has not resulted from a combination of the Licensed
Material with any other products, processes or material where the
alleged infringement relates to such combination (but not, for
clarification, where the alleged infringement relates wholly to the
Licensed Materials not in combination with any other product, process
or material) including, without limitation, the LICENSEE Product; and
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(f) LICENSEE does not, within a period of time which is commercially
reasonable in the circumstances, continue any allegedly infringing
activity after being notified thereof or after having been informed of
modifications that would have avoided the alleged infringement.
In the event that, at any time, LICENSEE or its sublicensees are deprived
by a court order of the right to market, distribute or sell the Licensed
Material based on a claim that the Licensed Materials infringe upon any
patent, copyright, trademark, trade secret or other intellectual property
right of a third party, NCompass shall, at its sole expense, use reasonable
efforts to: (i) procure on commercially reasonable terms such rights as may
be required; or (ii) modify the Licensed Material in a manner sufficient to
assure LICENSEE and its sublicensees that they have the right to continue
to market, distribute or sell the Licensed Material in the manner
contemplated by this Agreement and in such a manner that the modified
Licensed Material will substantially conform to the technical
specifications of the current Licensed Material, as updated from time to
time, without further infringement. If in the reasonable opinion of
NCompass such options are not viable, NCompass may terminate this Agreement
and refund all fees paid by LICENSEE to NCompass whereupon LICENSEE shall
have no further remedies or recourse to NCompass.
THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF NCOMPASS FOR
PATENT, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT
INFRINGEMENT FROM ANY THIRD PARTY AND IS IN LIEU OF ANY AND ALL WARRANTIES,
EXPRESS OR IMPLIED, OR STATUTORY IN REGARD THERETO.
8.4 LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF WARRANTY CLAIM WHICH IS
COVERED BY ARTICLE 8.1 AND THE REMEDIES AVAILABLE TO LICENSEE UNDER ARTICLE
4.4 IN CONNECTION WITH A NOTICE OF REJECTION PROVIDED BY LICENSEE WITHIN
THE ACCEPTANCE PERIOD, NCOMPASS' LIABILITY UNDER, OR FOR BREACH OF, OR
ARISING OUT OF THIS AGREEMENT AND/OR THE LICENSE OF THE LICENSED MATERIAL,
IS LIMITED TO AN AMOUNT EQUAL TO THE AMOUNT PAID BY LICENSEE UNDER ARTICLE
3.1 OF THIS AGREEMENT. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY
CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND BUSINESS
INTERRUPTION), INDIRECT, INCIDENTAL, SPECIAL, ECONOMIC, OR PUNITIVE DAMAGES
ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS
AGREEMENT, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, BREACH OF
WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
8.5 SPECIFIC EXCLUSION OF OTHER WARRANTIES. EXCEPT FOR A BREACH OF WARRANTY
CLAIM WHICH IS COVERED BY ARTICLE 8.1 AND THE REMEDIES AVAILABLE TO
LICENSEE UNDER ARTICLE 4.4 IN CONNECTION WITH A NOTICE OF REJECTION
PROVIDED BY LICENSEE WITHIN THE ACCEPTANCE PERIOD, NCOMPASS MAKES NO OTHER
WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY KIND WHATSOEVER, EITHER
EXPRESS OR IMPLIED WHETHER ARISING BY STATUTE, CONTRACT, TORT, PRODUCT
LIABILITY OR OTHERWISE, REGARDING THE LICENSED MATERIAL OR ANY OTHER
MATERIALS OR SERVICES TO BE SUPPLIED HEREUNDER BY NCOMPASS, INCLUDING, BUT
NOT LIMITED TO, WARRANTIES, REPRESENTATIONS AND GUARANTEES AS TO
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN, TITLE, CONDITION
OR QUALITY OF THE LICENSED MATERIALS OR OTHER MATERIALS AND SERVICES
SUPPLIED BY NCOMPASS HEREUNDER.
8.6 RISK ALLOCATION. THE PROVISIONS OF THIS ARTICLE ALLOCATE THE RISKS BETWEEN
THE PARTIES UNDER THIS AGREEMENT. THE FEES PROVIDED FOR IN THIS AGREEMENT
REFLECT THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED
HEREIN.
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9. TERMINATION AND DEFAULT
9.1 TERMINATION. This Agreement may be terminated:
(a) by LICENSEE at any time, in which event LICENSEE shall have no
liability for future scheduled payments under Article 3.1 hereof;
(b) by NCompass in accordance with Article 8.3 of this Agreement;
(c) at either party's option if the other party materially defaults in the
performance or observance of any of its material obligations under
this Agreement and does not remedy the default within 30 days of
receiving written demand to do so;
(d) by NCompass if LICENSEE fails to pay promptly any amount due and
payable under this Agreement; or
(e) at either party's option if the other party becomes insolvent or
bankrupt or makes an assignment for the benefit of creditors, or if a
receiver or trustee in bankruptcy is appointed for the other party, or
if any proceeding in bankruptcy, receivership, or liquidation is
instituted against the other party and is not dismissed within 30
days.
The right of termination will be in addition to all other rights and
remedies available for default or wrong doing, for example, either party
may seek injunctive relief. When either party has the option to terminate,
it may exercise that option by giving the other party written notice of
such termination, which will be effective upon receipt.
LICENSEE EXPRESSLY WAIVES AND RENOUNCES ANY CLAIM TO COMPENSATION OR
INDEMNITIES THAT MAY EXIST UNDER THE LAWS OF ANY APPLICABLE JURISDICTION
FOR ANY TERMINATION OF BUSINESS RELATIONSHIP BY A FOREIGN BUSINESS ENTITY
EXCEPT FOR THE TERMS DELINEATED IN THIS AGREEMENT.
9.2 EFFECT OF TERMINATION. Upon termination of this Agreement for LICENSEE's
material breach, LICENSEE shall cease using, reproducing, marketing,
distributing and selling the Licensed Material, shall discontinue all use
of any of NCompass' trademarks, and shall not use any other trademarks that
are confusingly similar to the NCompass trademarks. NCompass agrees that
upon expiration or termination of this Agreement, for any reason other than
for a material breach by LICENSEE, LICENSEE may have the right to continue
to sublicense and distribute the LICENSEE Products containing the Licensed
Materials, as follows:
(a) upon the expiry of the term of this Agreement, then for no longer
than 30 days thereafter; or
(b) upon breach of this Agreement by NCompass, then for no longer than 90
days after the termination date.
9.3 RETURN OF DOCUMENTATION. Except as otherwise provided for in this
Agreement, within 30 days of termination of this Agreement, LICENSEE shall,
at its own expense, return to NCompass, or certify in writing, that it has
destroyed all NCompass documentation in its possession, including, without
limitation, all material in its possession or control which contains or
refers to any of NCompass' Confidential Information.
9.4 RIGHTS OF END USERS SURVIVE TERMINATION. All end user licenses properly
granted by LICENSEE prior to the expiry or termination of this Agreement
shall survive any expiry or termination of this Agreement.
9.5 SUBLICENSES. LICENSEE agrees to provide in all of its sublicense
agreements with third parties that any rights to further sublicense or
distribute the Licensed Material under such agreements will terminate upon
termination of this Agreement. All such sublicenses shall contain
provisions for the protection of
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NCompass' rights in the Licensed Material that are no less restrictive
than those provisions set forth in Articles 2.1, 6.1, 6.2, 6.3, 6.4 and
10.10 and those provisions for the limitation of liability as set forth in
Article 8 of this Agreement. In each jurisdiction in which the Licensed
Material is distributed, LICENSEE shall be responsible to ensure that all
sublicenses are enforceable and in compliance with the laws of those
jurisdictions. LICENSEE shall be solely responsible for, and NCompass
shall have no obligation to honor, any warranty or indemnification
obligations made by LICENSEE to any sublicensee to the extent that such
obligations exceed those of NCompass to LICENSEE under this Agreement.
9.6 TERMINATION OF TECHNICAL SUPPORT SERVICES. In the event that NCompass is
unable or unwilling to provide Technical Support Services under Articles
5.1, 5.2 or 5.6 (as applicable) during the period for which the License
Fee described in Article 3.1 has been paid in full, then, upon written
request by LICENSEE, NCompass shall grant to LICENSEE a non-transferable,
non-exclusive limited license to use the Source Code of the Licensed
Material for the sole purpose of correcting Bugs, performing the limited
fixes and enhancements described in Schedule B hereto and the development
of Updates as defined in Article 5.6. This limited license shall terminate
on the earlier of;
(a) the date of termination or expiry of this Agreement; and
(b) the date, if any, upon which NCompass recommences the provision of
the Technical Support Services.
Notwithstanding any other provision of this Agreement, LICENSEE shall not
license to, or permit the use of, the Source Code of the Licensed Material
by any other person. LICENSEE acknowledges that the use by LICENSEE of the
Source Code of the Licensed Material shall in no event give it or be
deemed to give it any legal or equitable, proprietary right, title or
interest in and to such Bug corrections, fixes, enhancements and Updates
resulting therefrom, except for LICENSEE's right to use the same solely as
provided in this Agreement.
10. GENERAL PROVISIONS
10.1 AMENDMENT. This Agreement shall not be subject to amendment, modification
or discharge in whole or in part except by written instrument signed by
NCompass and LICENSEE. Any and all riders or endorsements attached to this
Agreement and signed by the parties hereto shall have the same force and
effect as if incorporated into the numbered terms and provisions of this
Agreement.
10.2 ASSIGNMENT. LICENSEE and NCompass may not assign this Agreement in whole
or in part, except with the prior written consent of the other, such
consent not to be unreasonably withheld. LICENSEE may not delegate its
authority hereunder without the prior written consent of NCompass.
Notwithstanding the foregoing, either party may assign its interest in
this Agreement without the prior written consent of the other party, if
such assignment is to a third party that is acquiring substantially all of
the assignee's business assets or stock.
10.3 CORPORATE AUTHORITY. The persons executing this Agreement covenant and
warrant that they have the right, power, legal capacity, and appropriate
corporate authority to enter into this Agreement on behalf of the
corporation for which they sign below.
10.4 COUNTERPARTS. This Agreement may be executed in counterparts with the
same effect as if both parties had signed the same document. Both
counterparts shall be construed together and shall constitute one and the
same agreement. This Agreement may be executed by the parties and
transmitted by facsimile transmission and if so executed and transmitted
this Agreement shall be for all purposes as effective as if the parties
had delivered an executed original Agreement.
10.5 ENTIRE AGREEMENT. This Agreement supersedes all prior agreements and
understandings between the parties about its subject matter and is the
entire agreement between the parties in respect to the Licensed Material.
This Agreement may not be amended except by written agreement signed by
both parties.
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10.6 ENUREMENT. This Agreement shall be binding upon and enure to the
benefit of the parties, and their successors and permitted assigns.
10.7 FURTHER ASSURANCES. NCompass and LICENSEE shall both execute and
deliver such further instruments and do such further acts as may be
required to implement the intent of this Agreement.
10.8 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Province of British Columbia, and the
parties hereto irrevocably submit to the jurisdiction of the courts of
such province. In any action or suit to enforce any right or remedy
under this Agreement or to interpret any provision of this Agreement,
the prevailing party shall be entitled to recover its costs, including
reasonable attorneys' fees.
10.9 INDEPENDENT CONTRACTORS. The parties are independent contractors. No
employment, partnership, joint venture or agency relationship is created
by this Agreement and one party cannot commit the other.
10.10 EXPORT LAWS. LICENSEE shall comply with the U.S. Foreign Corrupt
Practices Act and all export laws, restrictions and regulations of the
Department of Commerce or other United States or foreign agency or
authority and will not export or allow the export of any Licensed
Material in violation of any such restrictions, laws or regulations.
10.11 FORCE MAJEURE. Neither party shall be liable for its failure to
perform any of its obligations hereunder (other than failure to make any
payments when due hereunder) during any period in which performance is
prevented, interrupted or delayed by fire, flood, war, embargo, riot,
the intervention of any government authority, shortages of labor,
materials or delay in transportation beyond the reasonable control of
the party expecting same (each a "Force Majeure"), except that lack of
funds or credit shall not constitute a Force Majeure. The party
suffering such Force Majeure shall immediately notify the other party of
the Force Majeure.
10.12 NOTICE. Any notice or other communication, except a notice of
termination or default, required or permitted to be given under this
Agreement may be delivered personally or be sent by first class mail,
postage prepaid, or by overnight courier to LICENSEE or NCompass at the
address indicated on page one hereof, and any such notice or other
communication shall be deemed to have been given to the party to whom it
was addressed and received by that party on delivery, if delivered
personally, and on the fifth business day following the mailing thereof,
if mailed. Either party may change the address to which notice is to be
given as provided herein. A notice of termination or default shall be
sent by registered mail, return receipt requested.
10.13 SEVERABILITY. If any provision of this Agreement is held unenforceable
by a court of competent jurisdiction for any reason whatsoever, the
unenforceability shall not affect the enforceability of the remaining
provisions of this Agreement and the unenforceable or invalid provision
shall be severable from the remainder of this Agreement.
10.14 SURVIVAL. Articles 6.2, 8.3, 9.2, 9.3 and 9.4 shall survive termination
of this Agreement.
10.15 WAIVER. No notice of waiver of any term of this Agreement will be
effective unless in writing signed by the party making such waiver and
no waiver of any breach will constitute a waiver of any subsequent or
continuing breach. The failure of either party to assert any claim in
timely fashion will not alter or restrict any such party's fight to
assert any claim for a subsequent breach.
10.16 HEADINGS. The section headings appearing in this Agreement are inserted
only as a matter of convenience and in no way define, limit, construe or
describe the scope or intent of any such section nor in any way effect
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of
the date first above written.
NCOMPASS LABS INC.
by its authorized signatory:
/s/ /Dane Chauvel December 3, 1998
- ------------------------------------ ------------------------------------
Dane Chauvel Date
Chief Financial Officer
COMPS INFOSYSTEMS, INC.
by its authorized signatory:
/s/ Bob Evatt 12/2/98
- ------------------------------------ ------------------------------------
Name: Bob Evatt Date
Title: AVP, PRODUCT DEVELOPMENT
Page 12 of 15
SCHEDULE A
LICENSED MATERIAL SPECIFICATIONS
MODIFIED VERSION OF THE NCOMPASS SCRIPTACTIVE(TM) PLUG-IN
VERSION 2.9.0.5
PLATFORMS SUPPORTED
Runs under Windows(TM) NT 4.0 and Windows(TM) 95.
Works with Netscape Navigator(TM) 3.0, 3.01, 3.02, 3.03 and 3.04 and
Communicator(TM) 4.0, 4.01, 4.02, 4.03, 4.04, 4.05 and 4.06.
ARCHITECTURE
Written using Visual C++ 5.0 with Service Pack 3.
FUNCTIONALITY
Supports the ActiveX framework, including ActiveX Controls and ActiveX Scripting
through VBScript. Supports signed ActiveX Controls.
Contains the NCompass Conversion Tool which is used to modify Internet Explorer
specific HTML files to a format compatible with the Netscape browser.
Page 13 of 15
SCHEDULE B
TECHNICAL SUPPORT SERVICES
NCompass shall:
1. promptly provide LICENSEE written notice of known Bugs found in the
Licensed Material; and
2. upon receipt of notice from LICENSEE of a Bug, in sufficient detail to
permit NCompass to identify the Bug, provide to LICENSEE one of the
following solutions, such choice to be at the discretion of NCompass:
(a) an existing correction to the Licensed Material,
(b) a new correction to the Licensed Material,
(c) a request for more information regarding the Bug, or
(d) a report explaining how and when NCompass plans to address the
Bug; and
3. make reasonable efforts to resolve Bugs within its control in the
Licensed Material within a reasonable period of time; and
4. use its best efforts to remedy the error or Bug as soon as is feasible
if an error or Bug occurs in the Licensed Materials which renders the
Licensed Materials or the LICENSEE Product inoperable.
NCompass shall ship Updates to LICENSEE when they become available and such
releases will list the Bug fixes and enhancements.
NCompass shall provide the Technical Support Services to LICENSEE by telephone,
e-mail, facsimile or mail between the regular business hours of 8:30 AM (PST)
and 5:30 PM (PST).
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SCHEDULE C
NCOMPASS GUIDELINES FOR PROPRIETARY NOTICES AND DEVICES
1 All trademarks that do not use designs must be presented as follows:
NCOMPASS
2 The symbol TM should appear beside all trademarks on the right shoulder of
the trademarks, unless there is a good reason for not doing so. By way of
example:
NCOMPASS(TM)
3 A legend or footnote should appear where the trademark is used reading:
(TM) denotes trademarks of NCompass Labs Inc., used under license by
USER.
This type of system requires fairly extensive usage of the symbol (TM) in
the material to which the footnote refers. If that is not possible, the
symbol can be used only with the first appearance of each trademark, or
asterisks can be used, or a statement similar to the following can be used:
NCOMPASS is a trademark of NCompass Labs Inc., used under license by
USER.
4 After a trademark is registered in the United States Patent and Trademark
Office, when that trademark is used, the (TM) symbol will be replaced by
the (R) symbol for all of the foregoing purposes.
5 All written and graphic material bearing the trademarks, including print
advertising, should bear a copyright notice consisting of all the following
components:
(a) the symbol (C);
(b) the name NCompass Labs Inc.; and
(c) the year that copies of the subject material is first published by
distribution of copies to the public.
By way of example, if an item is first published in the year 1998, an
appropriate notice would be:
"(C) NCompass Labs Inc. 1998".
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