EXHIBIT 10.3
LICENSE
AGREEMENT
This License Agreement (“Agreement”)
is effective as of January 1, 2009 (the “Effective
Date”) by and between, on one hand, Primal Solutions, Inc, a
Delaware corporation (“Primal”), and Wireless Billing
Systems, a California corporation (“WBS”) (WBS and
Primal, collectively, “Licensee”), and, on the other
hand, BillWise, Inc., a California corporation
(“BillWise”) (BillWise and Licensee, each a
“Party” and collectively the “Parties”),
with respect to the following facts:
WHEREAS, the Parties have entered into that
certain Asset Purchase Agreement dated as of the Effective Date
(“APA”), pursuant to which BillWise is purchasing
certain assets from, and assuming certain obligations and
liabilities of, Licensee, including the Software and
Trademarks;
WHEREAS, Licensee requires a license back to the
Software and Trademarks in order to perform certain of its
obligations under the APA and to continue to service its customers
(excluding the Transferred Customers) existing as of December 31,
2008 (“Customers”); and
WHEREAS, BillWise is willing to grant Licensee
such a license pursuant to the terms and conditions of this
Agreement.
NOW, THEREFORE, based on the foregoing premises
and in consideration of the promises contained in this Agreement,
the Parties agree as follows:
. Capitalized terms used in this
Agreement have the meanings ascribed to them below or where defined
in this Agreement. Any capitalized terms used and not
defined in this Agreement have the meanings ascribed to such terms
in the APA.
1.1
“Affiliate” means, with respect to an entity,
any other entity that controls, is controlled by, or is under
common control with such entity. For the purposes of
this Agreement, the term “control” means the
possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of any such person
whether through the ownership of voting securities, by contract, or
otherwise.
1.2
“Confidential Information” means all information
regarding a Party’s business or affairs, including, without
limitation, the Software, business concepts, processes, methods,
systems, know-how, devices, formulas, product specifications,
marketing methods, prices, customer lists, methods of operation,
and other information, whether in oral, written, or electronic
form, that is either designated as confidential or that is
disclosed under circumstances such that a reasonable person would
know it is confidential. The terms, but not the
existence, of this Agreement are confidential. The
following information will not be deemed Confidential
Information: (i) information that is or becomes
publicly available through no fault of the Party obligated to keep
it confidential; (ii) information with regard to the other
Party that was rightfully known by a Party prior to commencement of
discussions regarding the subject matter of the Agreement; (iii)
information that was independently developed by a Party without use
of the Confidential Information; and (iv) information rightfully
disclosed to a Party by a third party without continuing
restrictions on its use or disclosure.
1.3
“including” means including, without
limitation.
1.4
“Intellectual Property Rights” means any and all
of the following (by whatever name or term known or designated) now
known or hereafter existing anywhere in the
world: (i) rights associated with works of
authorship, including, without limitation, all exclusive
exploitation rights, copyrights, moral rights, and mask work
rights; (ii) trade secret rights and other Confidential
Information;
(iii) patents (including, without limitation,
reissues, divisions, reexaminations, extensions, provisionals,
continuations, and continuations-in-part thereof), designs, and
other industrial property rights; (iv) source code, object
code, formulas, ideas, concepts, mask works, methods, know-how,
processes, devices, and the like, whether or not any of the
foregoing are subject to protection under law; (v) all
registrations, applications, renewals, extensions, continuations,
divisions, reissues, and the like; and (vi) all other
intellectual property and proprietary rights of every kind and
nature whether arising by operation of law, contract, license, or
otherwise, including trademark, service mark, trade dress, and
other marks based on designation of source or origin.
1.5
“Software” means all of the software transferred
to BillWise pursuant to the APA (including Connect IXC, Access IM,
Connect RTR, IPC, WPM, Marketing Dashboard and Revenue Assurance
Suite), and any derivative works, modifications, or improvements
thereof produced by or on behalf of Licensee to the extent Licensee
retains ownership and has the right to transfer ownership thereof,
in each case including all associated source code, object code,
documentation, and related Intellectual Property Rights; provided
that “Software,” for purposes of this Agreement, shall
not include Connect CCB, Communications Resources Manager (CRM),
and EBP&P.
1.6
“Trademarks” means the trademarks,
service marks, trade dress, and similar indicia that were
transferred to BillWise pursuant to the APA that are used to
identify or distinguish the various products associated with the
Software.
1.7
“Use” means use, copy, distribute, create
derivative works from, modify, display, perform, transmit, make,
sublicense, offer to sublicense, import, maintain, and
improve.
2.
LICENSE . Subject to the terms and conditions of
this Agreement, BillWise hereby grants Licensee a worldwide,
royalty free and fully-paid, irrevocable, and non-transferable
right and license, under all Intellectual Property Rights, to Use
the Software and Trademarks solely for the purposes
of: (i) providing services as necessary to support
BillWise pursuant to the terms of the APA and as otherwise
requested by BillWise and (ii) while Licensee has outstanding
contractual obligations to Customers, providing its services to
such Customers, including, without limitation, Time-Warner Cable,
Inc., and otherwise as necessary to fulfill its obligations under
its agreements with such Customers, as amended or otherwise
modified. Notwithstanding the foregoing, Licensee may
not sell or transfer any license to the Software except consistent
with past practices in the ordinary course of its
business.
3.1
Ownership of Intellectual Property Rights
. Except for the rights expressly granted under this
Agreement, BillWise will own all Intellectual Property Rights and
all other right, title, and interest in and to the Software and
Trademarks. No right or license will be implied by
estoppel or otherwise, other than the rights and licenses expressly
granted in this Agreement, and all rights not specifically granted
to Licensee in this Agreement
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