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SOFTWARE LICENSE AGREEMENT

End User License Agreement

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This End User License Agreement involves

PATRIOT COAL CORP | 12 Third Party Software | PATRIOT COAL CORPORATION | PEABODY ENERGY CORPORATION

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Title: SOFTWARE LICENSE AGREEMENT
Governing Law: Delaware     Date: 10/25/2007

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exv10w14
 

Exhibit 10.14
EXECUTION COPY
SOFTWARE LICENSE AGREEMENT
     This SOFTWARE LICENSE AGREEMENT (“Agreement”) is made and entered into this 22nd day of October, 2007 (“Effective Date”) by and between PEABODY ENERGY CORPORATION, a Delaware corporation located at (“Licensor”) and PATRIOT COAL CORPORATION, a Delaware corporation (“Licensee”).
     WHEREAS, pursuant to section 10.01 of the Separation Agreement, Plan of Reorganization and Distribution, dated as of October 22, 2007, by and between Licensor and Licensee (“Separation Agreement”), Licensor agreed to provide a license to Licensee to certain software and related documentation after the Closing date;
     NOW THEREFORE, in consideration of the premises and the mutual promises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1 — GRANT OF LICENSE
     1.1 Grant of License. Subject to the terms and conditions herein, Licensor hereby grants to Licensee during the Term a fully paid-up, non-exclusive license (i) to install, copy and distribute internally, use and create, improvements, enhancements and modifications (“Improvements”) to the software listed on Schedule A hereto (the “Software”), in each case, solely in connection with Licensee’s operation of its business (subject to Section 8.1 of this Agreement), and (ii) to copy and distribute internally, use and create Improvements to any related documentation developed by Licensor that pertains to the operation of the Software (“Related Documentation”).
     1.2 Third Party Software. The license in Section 1 is conditioned upon Licensee’s prior acquisition, at Licensee’s expense, of a license to all third party software, applications, code or other proprietary data or information set forth on Schedule B (“Third Party Software”) sufficient to enable Licensee to enjoy such license as set forth herein.
     1.3 Provision of Software and Related Documentation. Promptly after the Effective Date, Licensor shall provide Licensee (i) the most current copies of the source code for the Software, if available, (ii) copies of the Software in executable form, and (iii) copies of the Related Documentation. All copies of the Software provided by Licensor to Licensee shall be in computer readable format identical to that used by Licensor in connection with its operation of the Business immediately prior to the Effective Date.
     1.4 Improvements. Licensor may, but is under no obligation to, provide Licensee with Improvements it makes to the Software and Related Documentation after the Effective Date. If Licensor provides Licensee with Improvements, the parties will negotiate in good faith as to the price Licensee will pay Licensor for the Improvements. Licensee may create its own

 


 

Improvements to the Software, and all rights and intellectual property rights therein shall be owned by Licensor, provided that such Improvements shall be included in the “Software” licensed under Section 1.1 of this Agreement. Licensee must notify Licensor of any material Improvements it creates to the Software no more than six (6) months after it creates such Improvements and must provide Licensor with copies of all software, applications, code or other proprietary data or information relating to such Improvements.
     1.5 Rights Reserved. All rights not expressly granted to Licensee herein are reserved to Licensor. Licensee disclaims any right to use the Software except in accordance with the express grant provided in this Section 1.
Section 2 — OWNERSHIP OF SOFTWARE
     2.1 Ownership of Software. As between the parties, Licensee agrees that Licensor is the sole and exclusive owner of all right, title and interest, including intellectual property rights, in and to the Software and Related Documentation. Licensee agrees not to directly or indirectly question, attack, contest or in any other manner impugn Licensor’s rights in the Software and Related Documentation or the enforceability of this Agreement, including without limitation, in any action, claim, suit or proceeding (“Action”) in which enforcement of a provision of this Agreement is sought; nor shall Licensee willingly become a party adverse to Licensor in any Action in which a third party contests same.
Section 3 — OBLIGATIONS OF LICENSEE
     3.1 Copyright Notice. Licensee shall not remove any copyright notice or other proprietary or restrictive notice or legend contained or included in the Software or displayed on the Related Documentation and shall reproduce and copy all such notices and legends on any and all permissible copies of the Software or Related Documentation made hereunder.
     3.2 Copying, Distribution and Modification. Licensee shall not distribute the Software or Related Documentation except to its employees who need to use it to operate its business. Without limiting Section 5 of this Agreement, Licensee shall use reasonable efforts to prevent persons from unauthorized copying, access to, or use of the Software and Related Documentation.
     3.3 Compliance with Applicable Laws. Licensee shall, at its sole expense, comply at all times with all applicable laws and regulations pertaining to the use of the Software and Related Documentation.
Section 4 — REPRESENTATIONS AND WARRANTIES
     4.1 By Both Parties. Each party represents and warrants to the other party that it has the full power and authority to enter into this Agreement. Each party further represents that it has not entered, nor will it enter, into any agreements that would conflict with its obligations

 


 

hereunder or render it incapable of performing satisfactorily hereunder.
     4.2 By Licensor. Licensor represents and warrants to Licensee (i) that it is the sole and exclusive owner of the Software and Related Documentation, (ii) that it has the right to grant the license of the Software and Related Documentation to Licensee under this Agreement, (iii) that there are no pending or, to its knowledge, threatened, Actions (as defined in the Separation Agreement) as of the date hereof that seek to limit, cancel or challenge the validity, enforceability, ownership or use of, or Licensor’s rights in, the Software and Related Documentation, (iv) that no third party has sent Licensor any cease and desist letters relating to the Software and Related Documentation, (v) that it is not aware of any claim of infringement by a third party with respect to Licensor’s use of the Software or Related Documentation to date, (vi) that Licensee’s authorized use of such Software and Related Documentation pursuant to this Agreement shall not infringe the copyright or trade secret rights of any third party, and (vii) that, to its knowledge, no third party is infringing Licensor’s rights in the Software and Related Documentation.
     4.3 Licensor Indemnification. Licensor shall indemnify, defend and hold harmless Licensee, and each of its directors, officers, employees and agents (the “Licensee Indemnitees”) from and against any and all Indemnifiable Losses (as defined in the Separation Agreement) incurred or suffered by any of the Licensee Indemnitees and arising out of, or due to, Licensor’s breach of this Agreement or any representation, warranty, covenant or agreement hereunder.
     4.4 Licensee Indemnification. Licensee shall indemnify, defend and hold harmless Licensor, and each of its directors, officers, employees and agents (the “Licensor Indemnitees”) from and against any and all Indemnifiable Losses (as defined in the Separation Agreement) incurred or suffered by any of the Licensor Indemnitees and arising out of, or due to, Licensee’s breach of this Agreement, or any representation, warranty, covenant or agreement hereunder.
     4.5 Limitations on Licensor Liability. (a) Licensor makes no representation or warranty to Licensee that the Software or Related Documentation will meet Licensee’s requirements, that the operation of the Software will be free of errors, bugs, defects, viruses or other corruptants, or that the results obtained from the Software and the Related Documentation will be accurate, reliable, valuable or serve Licensee’s purposes.
     (b) EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SOFTWARE AND RELATED DOCUMENTATION ARE LICENSED TO LICENSEE “AS IS,” AND LICENSOR DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES RESPECTING THE SOFTWARE AND RELATED DOCUMENTATION, INCLUDING ALL WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY OR ACCURACY. LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND RELATED DOCUMENTATION AND ANY RESULTS DERIVED THEREFROM.
     IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INDIRECT,

 


 

EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOST SAVINGS, LOST SALES OR BUSINESS, AND/OR LOSS DUE TO BUSINESS INTERRUPTION OR LICENSEE’S INABILITY TO USE THE SOFTWARE OR ANY COMPONENTS THEREOF OR THE RELATED DOCUMENTATION) ARISING OUT OF OR RELATING TO THIS AGREEMENT, ON ANY THEORY, WHETHER OR NOT FORESEEABLE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.
Section 5 — CONFIDENTIALITY
     5.1 Licensee’s Obligations. Licensee acknowledges that the Software and Related Documentation may contain highly valuable trade secrets of Licensor. Therefore, Licensee agrees to maintain, safeguard and protect the highly confidential nature of the Software and Related Documentation, and shall prevent its unauthorized copying, access or use by third parties.
     5.2 Confidentiality Obligations. To the extent that either party receives any non-public, proprietary, or confidential information from the other party in the course of its performance under this Agreement, the parties agree that the confidentiality provisions of the Separation Agreement, as set forth in Section 13.04 therein, shall apply to the extent they are applicable and shall survive the termination of this Agreement.
     5.3 Use by Third Parties. Licensee may disclose Licensor’
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