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PROPRIETARY SOFTWARE LICENSE
AGREEMENT
This is an Proprietary Software License Agreement
(“Agreement”) dated as of June 26, 2007 (the
“Effective Date”) by and between NAST
(“Client”), a security company having a place of
business at 8/1 Ak. Koroleva Ul, Moscow 129515 and Guardian
Technologies International (“Licensor”), a Deleware
corporation having its principal place of business at 516 Herndon
Parkway, Herndon, Virginia 20170 via its Russian Distributor
Terralink Technologies International located at 57 Profsoyuznaya,
Office 800, Moscow Russia 117420
1.
SOFTWARE LICE NSE
A.
Software License . Licensor
hereby grants to Client a perpetual, nonexclusive,
nontransferable license commencing on the Effective Date to use
the Guardian Technologies International, Inc.’s
(“Guardian”) computer software components (the
“Software”) and documentation (collectively, the
“Documentation”) listed in Exhibit A on the terms
and conditions of this Agreement. The term
“Software” as used in this Agreement includes any
maintenance releases to the Software that may be provided to
Client from time to time under pursuant to this Agreement, but
specifically excludes any other modifications or customizations
to the Software.
B.
License Limitation . Client
may use the Software only at the specific facilities identified
in Exhibit A and only on the terms and conditions of
this Agreement. Client may not use the Software as part of
a commercial time-sharing or service bureau operation or in any
other resale capacity. Client may use the Documentation
solely in support of the Software. Client agrees not to
reverse engineer, decompile, disassemble or extract, as
applicable, any ideas, algorithms or procedures from the
Software or Documentation for any reason. Client may not
use the System as a guide or template for the purposes of
determining specifications or requirements for or in any way
developing a similar or competing product. Client may not
reverse engineer or decompile the Software.
C.
Copies . Client may not copy
the Software. Client may copy the Documentation to support
Client’s licensed use of the Software in accordance with
this Agreement, subject to any restrictions specified in
Exhibit A . Any copies Client makes of the
Documentation, in whole or in part, are Licensor’s
property. Client agrees to reproduce and include
Licensor’s and Guardian’s copyright, trademark, and
other proprietary rights notices on any copies of the
Documentation, including partial copies.
D.
Ownership . This Agreement
does not convey to Client title or ownership of the Software and
Documentation, but only a right of limited use in accordance
with this Agreement. All terms and conditions of this
Agreement are material terms of the license granted by this
Agreement.
E.
Third Party Software . All
third party software provided by Licensor to Client as a part of
the Software is also subject to the terms and conditions of the
applicable third party license agreement. Changes in the
Software that Licensor may make from time to time may make it
necessary for Client to acquire, at its own expense, updated
versions of the third party software or additional third party
products. Licensor will have no warranty or maintenance
obligations for any Third Party Products or additional third
party products.
2.
HARDWARE LEASE
A.
Lease of Hardware .
Licensor leases to Client, and Client leases from Licensor, the
hardware listed or described in Exhibit A (the
“Hardware”). This Agreement does not convey to
Client title or ownership of the Hardware, but only a right of
limited use in accordance with this Agreement.
B.
Subleases . Client may not
sublease any or all of the Hardware or assign, transfer or
encumber Client’s rights, interests or obligations under
this Agreement. Any attempted sublease, assignment,
transfer or encumbrance in violation of the preceding sentence
will be null and void.
C.
True Lease . Licensor
retains full legal title to the Hardware notwithstanding the
possession and use of the Hardware by Client. It is the
intent of the parties that the transaction contemplated by this
Agreement (1) constitutes an lease from Licensor to Client for
purposes of Client's financial reporting pursuant to generally
accepted accounting principles, and (2) constitutes a true
lease, and not a sale of Hardware, for federal and state law,
income tax, bankruptcy and other purposes. Each of the
parties to this Agreement agrees that it will not, nor will any
person controlled by it, or under common control with it,
directly or indirectly, at any time take any action or fail to
take any action with respect to the filing of any income tax
return, including an amended income tax return, inconsistent
with Licensor’s status as owner and lessor of the
Hardware. Title to the Hardware will at all times
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Guardian Technologies International, Inc.
Proprietary Software License and Hardware Lease Agreement
Confidential and Proprietary
remain in Licensor, and Client acquires no
ownership, title, property, right, equity, or interest in the
Hardware other than its leasehold interest solely as lessee
subject to all the terms and conditions of this Agreement.
D.
Restrictions on Use of the
Hardware . Client may not install, or remove any
software on the Hardware, or make any other modifications to the
Hardware without Licensor’s prior written consent.
Client may not modify the Hardware in any way.
E.
Risk of Loss and Damage .
Client is responsible for any damage to or loss of the
Hardware that may occur during the Term or return shipment of
the Hardware from Client to Licensor. Client shall use
commercially reasonably efforts to keep the Hardware in the same
condition as when received, except for normal wear and tear.
Client must reimburse Licensor for the replacement value
of any Hardware damaged or lost during either the Term or return
shipping to Licensor.
3.
MAINTENANCE
During the Term, Licensor will provide the following maintena
nce services for the System.
A.
Licensor will consult with Client for a
reasonable amount of time by telephone during Licensor’s
normal business hours to assist Client in the use of the
System;
B.
Licensor will supply computer program code to
correct any Errors (as defined in section 6.A of this Agreement)
in the Software. If a suspected Error is attributable to a
cause other than the Software as delivered by Licensor, then
Client will pay for Licensor’s work on a
time-and-materials basis. If the Software module
containing the Error has been modified by non-Licensor
personnel, Licensor will charge Client on a time-and-materials
basis at Licensor’s then-current hourly rates for
analyzing and fixing the Error in Client’s version, and
for any installation assistance Client requires;
C.
Licensor will provide Client with all
enhancements to the Software that Licensor develops and
generally makes available at no charge to other licensees of the
Software (“Enhancements”);
D.
If the Hardware does not conform with its
manufacturer’s specifications, Client may return such
Hardware unit (the “Returned Hardware”) for repair
or exchange as provided in this Section 3.D. Upon
Client’s valid request, Licensor will issue an Return
Material Authorization (“RMA”) within one business
day. Client may not make, and Licensor will not accept,
returns of Hardware for repair or exchange unless Client first
obtains an RMA. Upon issuance of an RMA, Licensor will
ship a replacement Hardware unit (the “Replacement
Hardware”) to Client within one business day, freight
pre-paid. Client will ship the Returned Hardware to
Licensor, freight pre-paid, on the next business day after
receiving the replacement unit. Licensor will test the
Returned Hardware upon receipt and verify that it is defective.
(1)
If the Returned Hardware is defective,
(i) Licensor will credit Client for the cost of the freight
to return the Returned Hardware; and (ii) Client may retain
the Replacement Hardware as a replacement for the Returned
Hardware and the Replacement Hardware will become a part of the
Hardware under this Agreement.
(2)
If the Returned Hardware is not defective,
Licensor will return it to Client and (i) Client will
return the Replacement Hardware to Licensor at Client’s
expense; and (ii) Licensor may invoice Client for a sum not
to exceed $60.00 per man-hour for the time and personnel
required to test the Returned Hardware, as well as the shipping
and handling fees to return the Returned Hardware to Client.
4.
CHARGES
A.
Fees . As compensation for
the Software license provided under Section 1, Client will
pay the fees specified to be paid in accordance with
Exhibit A . As compensation for the Software
Maintenance provided under Section 1, Client will pay the
fees specified to be paid with respect to the initial Term
(“Initial Term Fees”) in accordance with
Exhibit A . Client’s ability to extend
the Term of this Maintenance Agreement for additional one year
periods pursuant to Section 9.A is expressly conditioned
upon Client’s payment of the fees specified to be paid
with respect to each extension of the Term (“Additional
Term Fees”) in accordance with Exhibit A .
5.
NONDI SCLOSURE
A.
“Confidential Information” means any
and all information that is confidential or a trade secret and
is furnished or disclosed to Client under this Agreement,
including, without limitation, information owned by Guardian or
Licensor. The Software and Documentation are Confidential
Information of Guardian. In addition, Confidential
Information includes the specific business
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Guardian Technologies International, Inc.
Proprietary Software License and Hardware Lease Agreement
Confidential and Proprietary
terms of this Agreement and any other
information that is marked as “Confidential,”
“Proprietary,” “Trade Secret,” or in
some other manner to indicate its confidential, proprietary or
trade secret nature.
B.
Confidential Information will remain the
property of Guardian or Licensor, as applicable, and Client will
not be deemed by virtue of this Agreement or any access to
Confidential Information to have acquired any right, title or
interest in or to the Confidential Information. Client
agrees: (i) to hold the Confidential Information in strict
confidence; (ii) to limit disclosure of the Confidential
Information to Client’s own employees having a need to
know the Confidential Information for the purposes of this
Agreement; (iii) not to disclose any Confidential Information to
any third party; (iv) to use the Confidential Information
solely and exclusively in accordance with the terms of this
Agreement in order to carry out its obligations and exercise its
rights under this Agreement; (v) to afford the Confidential
Information at least the same level of protection against
unauthorized disclosure or use as Client normally uses to
protect its own information of a similar character, but in no
event less than reasonably care; and (vi) to notify
Guardian and Licensor promptly of any unauthorized use or
disclosure of the Confidential Information and to cooperate with
and assist Licensor in every reasonable way to stop or minimize
such unauthorized use or disclosure.
C.
Client agrees that if a court of competent
jurisdiction determines that Client has breached, or attempted
or threatened to breach, its confidentiality obligations or
Guardian’s or Licensor’s proprietary rights, money
damages will not provide an adequate remedy. Accordingly,
Guardian will be entitled to seek appropriate injunctive relief
and other measures restraining further attempted or threatened
breaches of such obligations. Such relief or measures will
be in addition to, and not in lieu of, any other rights and
remedies available to Licensor.
6.
WARRANTY.
A.
Licensor warrants
during the first one (1) year after the Effective Date (the
“Warranty Period”), that performance of the Software
will not deviate materially from the specifications identified
in Exhibit A (the “Specifications”).
A material deviation of the Software from its
Specifications is referred to in this Agreement as an
“Error.” If Client belie ves there has been a breach of this warranty
it must notify Licensor in writing within the Warranty Period
describing the Error in sufficient detail to enable Licensor to
recreate it. If there has been a breach of this warranty,
then Licensor’s sole obligation, and Client’s
exclusive remedy, will be for Licensor to correct the Error at
no charge. However, if Licensor is unable to correct an
Error after repeated efforts, Client will also be entitled to an
equitable adjustment in the Initial Term Fees to reflect any
reduction in the value of the Software as a result of the
uncorrected Error. If a reported
breach of warranty is attributable to a cause other than a
breach of this warranty, then Licensor will be entitled to
payment for its investigation and correction efforts on a time
and materials basis at Licensor’s then-current rates.
B.
Licensor warrants during the Warranty Period,
that performance of the Hardware will not deviate materially
from the manufacturer’s specifications. If Client
believes there has been a breach of this warranty it must notify
Licensor in writing within
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