Exhibit
10.14
CERTAIN INFORMATION (INDICATED BY ASTERISKS) IN THIS EXHIBIT HAS
BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED
PORTIONS.
ONEVISION
®
SERVICE AND SOFTWARE LICENSE AGREEMENT
This
Agreement is entered into effective as of the 25th day of
April, 2007 (“Effective Date”), by and between
ForgeHouse, LLC, a limited liability company organized and
existing under the laws of the state of Georgia, US
(hereinafter referred to as “FORGEHOUSE”), and
Securitas Security Services USA, Inc., a corporation organized
and existing under the laws of the state of Delaware, US
(hereinafter referred to as "LICENSEE”).
WHEREAS,
FORGEHOUSE has developed a web-based service and related
computer software for use,
inter alia, in
building security services and is willing to provide such services,
grant a license to such software, and sell related equipment to
LICENSEE on the terms and conditions herein; and
WHEREAS,
LICENSEE is desirous of obtaining the web-based service, the
software, and the equipment from FORGEHOUSE in accordance with
the terms and provisions hereinafter set forth.
NOW,
THEREFORE, in consideration of the mutual promises, premises,
and covenants herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, FORGEHOUSE and LICENSEE hereby agree as
follows:
1.
DEFINITIONS
1.1
“Devices”
means the personal computers (“PCs”) and personal
digital assistants (“PDAs”) and related cabling
and other equipment owned and controlled by LICENSEE or
obtained from FORGEHOUSE, in use at Locations that allows for
the use of the Licensed Software to access the
Service.
1.2
“Documentation”
means the published documentation for the Service and the
Licensed Software provided by FORGEHOUSE to
LICENSEE.
1.3
“Host
Computer” means the computer(s) and associated hardware
and software owned and operated by FORGEHOUSE at
FORGEHOUSE’s location(s) on which the main operating
component modules of the “OneVision SV version
x.x” computer software resides and that FORGEHOUSE will
use to provide the Service to LICENSEE.
1.4
“Licensed
Software” means the “OneVision SV version
x.x” client computer software version for personal
computers and the “OneVision SV version x.x”
client computer software version for PDAs and any new releases
and versions thereof that FORGEHOUSE provides from time to
time to its customer base without additional
charge.
1.5
“Locations”
means the buildings or other physical structures of
LICENSEE’s customers in the United States and its
territories and possessions at which LICENSEE provides its
facility security services.
1.6
“Pricing
Schedule” means Exhibit A.
1.7
“Service”
means the online provision of comprehensive security
management tools for facility security services using the
OneVision SV version x.x software and the Host
Computer.
1.8
“Specifications”
means the technical specifications regarding the Service and
the Licensed Software in the Documentation.
2.
PROVISION OF SERVICE; LICENSE GRANT
2.1
During
the term of this Agreement, FORGEHOUSE will provide the
Service to LICENSEE and LICENSEE will accept and use the
Service. LICENSEE will notify FORGEHOUSE of each type of
Service access needed based on the Service types set forth on
Exhibit A and FORGEHOUSE will provide LICENSEE with the
necessary Devices, if applicable, at LICENSEE’s cost per
Section 4.4 below, as well as any necessary codes, users names
or passwords needed to access the Service. LICENSEE agrees to
use the Service at all times in accordance with the
Documentation and solely for purposes of assisting LICENSEE to
provide security services to its customers at Locations. The
Service will be provided twenty-four
hours (24) per day, seven (7) days per week
(“24x7”) except
as set forth in Section 7.2.
2.2
Personal
computers, monitors, keyboards, cabling and other equipment
may be purchased from third parties, but must meet the minimum
technical specifications set by FORGEHOUSE from time to
time.
2.3
During
the term of this Agreement, FORGEHOUSE hereby grants to
LICENSEE, and LICENSEE hereby accepts, a, non-transferable,
limited license to use the Licensed Software at the Locations
solely for purposes of LICENSEE’s provision of
facility security
services to its customers. This license includes the right to copy
a master disk of the Licensed Software that will include the
“ThickClient” version of the Licensed Software for PCs,
the “MORe” version of the Licensed Software for PDAs,
and the “Desktop Administrator” version of the Licensed
Software for Managers and Administrators, and the Documentation
solely for the number of licenses paid for and solely for
installation and use of the Licensed Software on Devices used by
Licensee for accessing the Service at Locations. This license shall
be exclusive for LICENSEE’s customized versions of the
Licensed Software as set forth in more detail in Exhibit B and
subject to the other terms and conditions set forth on Exhibit B
and this Agreement. Notwithstanding the limitation to Locations set
forth in the first sentence of this Section 2.3, LICENSEE’s
users who use the Service under a manager/administrator’s
Service Fee (as defined below), may access the Service from any
location in the United States. Upon LICENSEE’s failure to
meet the requirements for exclusivity set forth in Exclusivity
Requirements, the license granted in this Section 2.2 will
automatically revert to a non-exclusive license.
2.4
FORGEHOUSE
agrees to provide LICENSEE with a set of existing
Documentation for the Licensed Software.
2.5
The
parties agree that all rights, including, but not limited to,
rights under the federal copyright and patent laws and the
trade secret laws, to the Service, the Licensed Software and
the Documentation are and shall remain the sole and exclusive
property of FORGEHOUSE. LICENSEE agrees not to challenge
FORGEHOUSE’s ownership in or enforceability of
FORGEHOUSE’s rights in and to the Licensed Software, the
Service or the Documentation. With regard to LICENSEE’s
requested modifications to the Licensed Software the parties
agree that such modifications will be, owned by FORGEHOUSE,
but LICENSEE will be allowed exclusive use of such
modifications for a period of four (4) months. LICENSEE shall
not make application, domestically or internationally, for any
copyright or patent right with regard to the Licensed
Software.
2.6
All
data provided by LICENSEE to FORGEHOUSE during the course of
the Service regarding LICENSEE’s security services, and
all intellectual property rights thereto, shall be the sole
property of LICENSEE. FORGEHOUSE shall have no duty or
obligation (a) to investigate the veracity or accuracy of such
data or (b) update or correct such data.
2.7
No
rights or licenses to the Licensed Software, the Service or
the Documentation other than those expressly granted in this
Section 2 are granted, whether expressly, by implication or
estoppel or otherwise.
2.8
Under
no circumstances shall this Agreement be considered or
construed in any way as the sale of the Licensed Software or
the Documentation or the sale of any copy thereof, whether
such copy is made by FORGEHOUSE or LICENSEE.
2.9
FORGEHOUSE
will not be providing any content or applications for LICENSEE
under this Agreement other than the Licensed Software. The
Licensed Software must be used on PCs and PDAs that meet
FORGEHOUSE’s minimum configuration and technical
requirements. LICENSEE is solely responsible for maintaining
the confidentiality of its user names and passwords. LICENSEE
agrees that FORGEHOUSE has recommended that LICENSEE’s
user names and passwords not be stored on the applicable
personal computers but as of the Effective Date LICENSEE has
elected to not follow such recommendation.
2.10
LICENSEE
understands and agrees that FORGEHOUSE may, from time to time,
and in its sole discretion, change the content or format of
the Service, Licensed Software, Documentation or the media of
delivery, in accordance with general changes made to its
standard service and product offering. However, FORGEHOUSE
will not make material changes to the content or format of the
Service, Licensed Software, Documentation or the media of
delivery without LICENSEE’S prior written consent, which
will not be unreasonably withheld.
2.11
THE
SERVICE, THE LICENSED SOFTWARE, THE DOCUMENTATION, THE
EQUIPMENT AND ANY RELATED DOCUMENTATION PROVIDED BY FORGEHOUSE
TO LICENSEE IS RESTRICTED, HAS BEEN DEVELOPED AT PRIVATE
EXPENSE AND IS PROVIDED SOLELY IN ACCORDANCE WITH THE EXPRESS
PROVISIONS OF THIS AGREEMENT. The Licensed Software is
“Commercial Computer Software” under DFARS
227-7202 and FAR 12.212. Any use, duplication, or disclosure
by the United States Government is governed solely by the
terms of this Agreement or, if specifically required under the
applicable federal contract, by the RESTRICTED RIGHTS
provisions set forth in one of the following clauses:
subparagraph (1) (ii) of the RIGHTS IN DATA AND COMPUTER
SOFTWARE clause of DFARS 252.227-7013 (48 C.F.R. Section
252.227-7013 (OCT 1988), Alternate III (g) (3) of the RIGHTS
IN DATA-GENERAL clause of FAR 52.227-14 (JUN 1987), or FAR
52.227-19 (JUN 1987). Contractor/manufacturer is ForgeHouse
LLC, 3651 Peachtree Parkway, Suite E-436, Suwanee, Georgia
30024 USA.
3.
TERM/TERMINATION
3.1
The
term of this Agreement shall commence on the Effective Date
and shall continue until the third (3
rd )
anniversary thereof (“Term”).
3.2
Either
party shall have the right to terminate this Agreement and the
license granted herein if the other party commits a Default
under this Agreement that is not cured with thirty (30) days
prior written notice thereof. A “Default” means
any one or more of the following events: (i) a party
voluntarily commences or files a petition for relief seeking
liquidation, reorganization or other relief under federal,
state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect (ii) an involuntary
proceeding shall be commenced or an involuntary petition shall
be filed seeking (a) liquidation, reorganization or other
relief in respect of a party, or any of its subsidiaries or
its debts, or of a substantial part of a party’s assets,
under any federal, state, or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (b)
the appointment of a receiver, trustee, custodian,
sequestrator, conservator, or similar official for the party
or any of its subsidiaries, or for a substantial part of a
party’s assets, or an order or decree approving or
ordering any of the circumstances in (a) or (b) and such
proceeding is not dismissed within sixty (60) days thereof;
(iii) one of the parties voluntarily dissolves or attempts to
dissolve itself as a corporation; (iv) one of the parties
shall become unable to pay and admits in writing its inability
to pay, or fails to pay, its debts as they become due; or (v)
a material breach of a term or condition of this Agreement,
including but not limited to, the failure of LICENSEE to
timely pay Fees in accordance herewith. Upon the occurrence of
a Default, the non-defaulting party shall provide written
notice to the other party of the Default and the defaulting
party shall have thirty (30) days from the defaulting
party’s receipt of notice of Default to cure the same.
If the defaulting party shall not effect such cure within such
thirty (30) day period, then the non-defaulting party shall
have the right but not the obligation to terminate this
Agreement. The parties’ rights as set forth in this
Section 3.2 are cumulative and in addition to any other rights
the parties may have at law or in equity.
3.3
LICENSEE
shall have the right to terminate this Agreement at any time,
without cause or penalty, upon twelve (12) or more
months’ prior written notice to FORGEHOUSE.
3.4
Within
ninety (90) days after the date of effective termination as
provided for in Section 3.2 above, LICENSEE, its agents and
contractors shall deliver to FORGEHOUSE all originals and
copies of the Licensed Software and Documentation, and cease
use of the Service, the Licensed Software and
Documentation.
3.5
All
provisions of this Agreement that by their nature are
continuing shall survive the expiration or termination of this
Agreement, including, but not limited to, Sections 2.5, 3.3,
4, 5.2 through 5.5, 6.1, 7.2.4, 7.3, 7.4, 7.5, 8, 9 and
10.
4.
LICENSE FEES; PURCHASE OF EQUIPMENT
4.1
For
the provision of the Service and the license of the Licensed
Software during the Term, LICENSEE shall pay to FORGEHOUSE the
annual service fees set forth in the Pricing Schedule
(collectively “ Service Fees”). The Base Service
Fee as set forth in Exhibit A is payable on the first of each
month for that month. The Additional Annual Service Fees for
all activated Service Types are payable upon receipt of
invoice for that Annual Service Period. Types of Service as
set forth in Exhibit A, may be re-assigned to any user and/or
site at any time by LICENSEE for the remainder of the
respected Annual Service Period. The Service Fees also shall
cover the Tier 2 support as set forth in Exhibit C. Additional
support, when available, will be provided for an extra
charge.
4.2
All
Service Fees shall be paid by LICENSEE to FORGEHOUSE in
advance in United States of America Dollars. All invoices for
equipment shall be payable thirty (30) days from the date of
invoice. All shipping fees and costs with respect to Devices
and Licensed Software will be paid by LICENSEE.
4.3
LICENSEE
shall be liable for and shall pay any and all income,
franchise, sales, use, personal property, ad valorem, value
added, stamp or other tax, levy, customs duty, or other impost
or fee, including withheld taxes, on the Service, the Licensed
Software and any Devices purchased from FORGEHOUSE, whether
now in force or enacted or levied in the future, except a tax
based on the net income of FORGEHOUSE, together with all
penalties, fines and interest thereon, that in any way arises
out
of
this Agreement, whether on or measured by the price, the charges,
or on the Service, Licensed Software or Devices furnished, or their
use, however designated, levied or based (hereinafter collectively
called "Tax"). This section will apply during and after termination
of this Agreement.
4.4
LICENSEE
may purchase Devices from FORGEHOUSE at the prices set forth
on Exhibit A, which prices are exclusive of any Tax and
Shipping and are subject to change upon thirty (30) days prior
written notice and agreement of LICENSEE.
4.5
FORGEHOUSE
is not the manufacturer of any Devices, and as such,
FORGEHOUSE will not provide any warranty (including, but not
limited to, any implied warranty of merchantability or fitness
for a particular purpose) with any Devices sold to LICENSEE.
No terms of LICENSEE’s purchase order or any other
document not signed by FORGEHOUSE and LICENSEE can alter these
terms and conditions for the sale of Devices. FORGEHOUSE will
pass through to LICENSEE any warranties provided by the
manufacturers of the Devices where available.
FORGEHOUSE’s cumulative liability arising out of the
Devices sold by FORGEHOUSE to LICENSEE will not exceed the
price paid by LICENSEE to FORGEHOUSE for the applicable
Devices.
5.
IMPLEMENTATION OF THE SERVICE; SERVICE FEE AUDIT
RIGHTS
5.1
The
Service will be implemented by FORGEHOUSE upon payment by
LICENSEE of the
initial quarterly installment of the annual Service Fee for
the number of PCs and PDAs needed by Service Type pursuant to
Exhibit A. Once such fees are paid, FORGEHOUSE will promptly
provide to LICENSEE the authentication codes for each such
unit, and a master disk of the Licensed Software version for
each Device that LICENSEE may use to create only those copies
of the Licensed Software as necessary to allow access to the
Service by the PCs and PDAs paid for by LICENSEE. Each
authentication code may be used only with a single PC or
PDA.
5.2
LICENSEE
will maintain records regarding each user of the Service and
Licensed Software and the number of copies made of each
version of the Licensed Software (PC and PDA). Upon request,
LICENSEE will provide copies of such records to FORGEHOUSE and
FORGEHOUSE, or its appointed designee, shall, upon five (5)
days notice to LICENSEE, have the right to have a qualified
accountant selected by FORGEHOUSE audit the records of
LICENSEE to the extent necessary to verify LICENSEE’s
report, including the right to examine, photocopy and make
extracts from such records. Such records shall be made
available to FORGEHOUSE’s accountant at LICENSEE’s
notice address. FORGEHOUSE shall use reasonable efforts to
have the audit performed during regular business hours and
LICENSEE shall cooperate with and assist FORGEHOUSE’s
accountant for the purpose of facilitating such
audit
5.3
Any
underpayment of Service Fees revealed by such audit shall be
immediately due and payable. If the audit reveals an
underpayment equal to or greater than five percent (5%) of the
Service Fees due for any contract year, the payment shall bear
interest at the rate of one and one-half percent (1½%)
per month, or the maximum extent permitted by law, whichever
is lesser, calculated from the time the Service Fee was
originally due until the date of such remittance. If such
deficiency is found, LICENSEE also shall pay to FORGEHOUSE the
cost of such audit, including any collection fees or other
pertinent legal fees. The operation of this provision is
without prejudice to any other right or remedy FORGEHOUSE may
have pursuant to the terms of this Agreement or the law.
LICENSEE shall not set off any amounts against any payment of
its Service Fees due FORGEHOUSE unless agreed in writing by
FORGEHOUSE prior thereto.
5.4
If
such audit reveals an underpayment equal to or greater than
twenty (20%) percent of the Service Fees due for a contract
year, FORGEHOUSE may, at its sole option, immediately
terminate the Agreement upon notice to LICENSEE, even if
LICENSEE tenders the audit deficiency and associated costs and
expenses of the audit itself.
5.5
If
LICENSEE is late two (2) or more consecutive times with the
payment of Service Fees, FORGEHOUSE shall thereafter have the
right, but not the obligation, to terminate this Agreement
with no right to cure by LICENSEE. The acceptance of late
payments hereunder or the acceptance of an incomplete contract
year report, (i) shall not constitute a waiver by FORGEHOUSE
of any of its rights under this Agreement and (ii) shall not
cure any default which might exist.
6.
LEGAL COMPLIANCE
6.1
Any
and all uses of the Service and the Licensed Software by
LICENSEE shall be in compliance with all applicable and
necessary governmental approvals and all applicable laws,
rules and regulations. LICENSEE shall immediately inform
FORGEHOUSE in writing of any material complaint by any
consumer or governmental body relevant to the Service or the
Licensed Software, and the status and resolution thereof.
LICENSEE shall at its own cost move expeditiously to resolve,
and commit FORGEHOUSE to resolve, and assist FORGEHOUSE to
resolve, any such complaint.
7.
DISCLAIMER OF WARRANTIES AND LIMITATIONS OF
LIABILITY
7.1
Each
party hereby represents that it has the right to enter into
this Agreement.
7.2
Limited
Warranty.
7.2.1
Performance.
During the term of this Agreement, FORGEHOUSE warrants that
the Service and the Licensed Software will perform
substantially in accordance with the Specifications.
FORGEHOUSE
will use its best efforts to correct any interruptions of the
service, and bugs in the LICENSE SOFTWARE.
7.2.2
Downtime.
FORGEHOUSE agrees that the Service will be available to
LICENSEE ninety-eight percent (98%) of the time except for:
(a) scheduled downtime (i.e., unavailability) for scheduled
maintenance (“Scheduled Downtime”) which
FORGEHOUSE either notifies LICENSEE of twenty-four (24) hours
in advance or that are conducted during FORGEHOUSE’s
normal scheduled maintenance windows (which will be mutually
agreed upon): (b) unscheduled maintenance necessary, in
FORGEHOUSE’s sole discretion, to avoid a threat to the
Service or Host Computer; (c) LICENSEE equipment or software
failures; or (d) downtime caused by Force Majeure (as defined
below) (“Uptime SLA”). Scheduled Downtime shall
mean no more than four (4) hours per calendar week (Sunday
through Saturday) and shall be conducted during mutually
agreed upon maintenance windows. LICENSEE’s sole and
exclusive remedy, and FORGEHOUSE’s sole and exclusive
liability, for breach of this Uptime SLA shall be the issuance
of a credit by FORGEHOUSE to LICENSEE for each day of Service
during which this Uptime SLA is not met
(“Credit”).
7.2.3
Credits.
In order to claim Credits, LICENSEE must open a trouble ticket
with FORGEHOUSE during the downtime as set forth in EXHIBIT D.
All downtimes will be measured from the time the ticket is
received and validated by FORGEHOUSE to the time FORGEHOUSE,
in its reasonable discretion is able to resolve the issue.
LICENSEE may not receive more than one (1) Credit per downtime
incident. LICENSEE must be a FORGEHOUSE customer in good
standing to receive the Credit and must be using the Service
and Licensed Software in compliance with this Agreement. No
Credit will be applied to accounts that are past-due or for
accounts that are cancelled before the conditions for payment
of the Credit are met. Upon cancellation of the LICENSEE's
account, any outstanding or previously accrued Credits will be
forfeited. Credits will be applied against the following
month’s Service fee. Credits will not be applied against
past due balances.
7.2.4
Scope
of Warranties. The limited warranties and Uptime SLA set forth
in this Section 7.2 shall not apply: (a) if the Service or the
Licensed Software is not used by LICENSEE in accordance with
the Specifications or Documentation
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