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EXHIBIT 10.10
SOFTWARE LICENSE AGREEMENT--METERWORKS
(SOURCE CODE)
This Agreement is entered into this 31st day of August, 2002
(the
"Effective Date") by and between Hifn, Inc., a Delaware
corporation with
principal offices at 750 University Avenue, Los Gatos,
California 95032
("Licensor") and Siegler Technology Development, L.L.C., a
Delaware limited
liability company with principal offices at 1100 East Woodfield
Road, Suite 100,
Schaumburg, Illinois 60173 ("Licensee").
RECITALS
WHEREAS, Licensor desires to grant to Licensee, and Licensee
desires to
receive from Licensor, a non-exclusive license to incorporate
Licensor's
proprietary Licensed Software (as hereinafter defined) known as
MeterWorks into
Licensee Products (as hereinafter defined) and to distribute the
Licensed
Software, in object code format only, with Licensee's Products
in accordance
with the terms of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual
covenants contained herein, the parties agree as follows:
1. DEFINITIONS
For purposes of this Agreement the following terms shall have
the
meanings set forth below:
1.1 Authorized Location. "Authorized Location" means any
location or
locations of Licensee's office or offices, now or hereafter in
existence from
time to time.
1.2 Derivative Works. "Derivative Works" means any software
programs,
and copies thereof, which are developed by Licensee and which
are based on or
incorporate any part of the Licensed Software delivered by
Licensor hereunder,
including without limitation any revision, modification,
translation (including
compilation or recapitulation by computer), abridgment,
condensation, expansion,
or any other form in which the Licensed Software may be recast,
transformed or
adapted, and that, if prepared without Licensor's authorization,
would
constitute a copyright or trade secret infringement of the
Licensed Software.
1.3 Licensed Software. "Licensed Software" means Licensor's
proprietary
Source Code software (marketed by Licensor under the tradename
MeterWorks), as
more fully described on Schedule A attached to this Agreement,
including any
updates, improvements or modifications hereinafter furnished to
Licensee by
Licensor in connection with the Licensed Software, whether
requested by Licensee
or initiated by Licensor.
1.4 Licensee. "Licensee" means Siegler Technology Development,
L.L.C.
and any subsidiary, parent or other affiliated entity of Siegler
Technology
Development, L.L.C.
1.5 Licensee Products. "Licensee Products" means those
Licensee
products which incorporate the Licensed Software and which are
further described
on Schedule B attached to this Agreement, as it may be amended
from time to time
by mutual agreement of the parties.
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Licensee may add products which are substantially similar or
within the existing
product family, to the products listed on Schedule B without
Licensor's consent
as long as there is no change in control of Licensee.
1.6 Licensor Documentation. "Licensor Documentation" means all
written
or electronic technical documentation furnished by Licensor
during the term of
this Agreement that relates to the Licensed Software, including
without
limitation any and all algorithms, listings, flow charts,
operation instructions
and other documentation.
1.7 Object Code. "Object Code" means the Licensed Software
supplied by
Licensor to Licensee hereunder, or Derivative Works developed by
Licensee
hereunder, in machine-readable, compiled object code form.
1.8 Revenue. "Revenue" shall mean the gross amount actually
received by
or accrued to Licensee less sales taxes and customs duties and
refunds for
returns actually paid by Licensee from such amounts and bad debt
written off as
uncollectable (unless later collected) for (i) sale,
distribution, or use of a
Licensee Product; or (ii) the provision of products based in any
part upon or
using a Licensee Product.
1.9 Software Upgrades. "Software Upgrades" means new versions of
the
Licensed Software developed by Licensor that provide substantial
new
functionality or performance in addition to the features
provided by the version
of the Licensed Software described on Schedule A.
1.10 Source Code. "Source Code" means the computer source code
for the
Licensed Software supplied by Licensor to Licensee hereunder,
including any
updates, improvements, or modifications hereinafter furnished to
Licensee by
Licensor in connection with the Source Code, whether requested
by Licensee or
initiated by Licensor.
1.11 Source Materials. "Source Materials" means:
(a) the computer source code for the Licensed Software
supplied by Licensor to Licensee hereunder, including source
code
Modifications containing Licensor's confidential information in
human
perceivable form; and
(b) all other human perceivable or readily reverse
engineered
descriptions and implementations of the Licensed Software or
portion
thereof.
1.12 Nonconformance. "Nonconformance" means any material
discrepancy
between the functionality of the Binary Version and the
functionality described
in the RFCs 1757, 1513, 2021 and 2074. Conformance to RFCs 1757,
1513, 2021 and
2074 shall be the joint responsibility of Licensor and
Licensee.
1.13 RFC 1757. "RFC 1757" means the document identified as
Request for
Comments 1757, Remote Network Monitoring Management Information
Base, as
published by the Internet Engineering Task Force, March
1995.
1.14 RFC 1513. "RFC 1513" means the document identified as
Request for
Comments, 1513 Token Ring Extensions to the Remote Network
Monitoring MIB, as
published by the Internet Engineering Task Force, September
1993.
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1.15 RFC 2021. "RFC 2021" means the document identified as
Request for
Comments, 2021 Remote Network Monitoring Information Base
version 2, dated
January 1997.
1.16 RFC 2074. "RFC 2074" means the document identified as
Request for
Comments, 2074 Remote Network Monitoring MIB Protocol Directory,
dated January
1997.
2. LICENSE GRANT
2.1 Modification License. Subject to the terms and conditions of
this
Agreement, Licensor hereby grants to Licensee, under all of
Licensor's
intellectual property rights in and to the Licensed Software, a
non-exclusive,
non-transferable (except as provided in Section 11.1, below),
worldwide license,
without right to sublicense, of the Licensed Software, the
Licensed
Documentation, and the Source Code and the Source Materials,
with rights to use,
modify, reproduce and prepare Derivative Works of the Source
Code and the
Licensor Documentation solely at the Authorized Location for the
purpose of
creating, maintaining and enhancing the Licensee Products. The
parties
acknowledge and agree that the Licensed Software, in Object
Code, or Derivative
Works form can be embedded in products offered for sale or
license (with rights
to sublicense) by Licensee ("Licensee Products") and
notwithstanding anything to
the contrary contained in this Agreement and notwithstanding any
restrictive
language set forth in Section 2.2 or Section 2.3 below, Licensee
shall have the
express right to sell and/or license Licensee Products
containing the Object
Code or Derivative Works form of the Licensed Software to third
parties; such
activity shall:
(a) not be deemed to violate any restrictions contained
herein
with respect to sublicensing of the Object Code of the
Licensed
Software;
(b) survive the termination of this Agreement (except in the
case of a Breach by Licensee under Section 8.1); and
(c) not create any further liability or obligations of
Licensee to Licensor.
2.2 Object Code Reproduction License. Subject to the terms
and
conditions of this Agreement, Licensor hereby grants to
Licensee, under all of
Licensor's intellectual property rights in and to the Licensed
Software, a
non-exclusive, non-transferable (except as provided in Section
11.1 below)
license to reproduce, in Object Code format only, the Licensed
Software and/or
Derivative Works as part of the Licensee Products. Licensee
shall make no use of
any copies of the Licensed Software and/or Derivative Works
reproduced pursuant
to this Section 2.2 except as provided by the distribution
license set forth in
Section 2.3 below. Licensee shall be permitted to sublicense the
reproduction
rights granted under this Section 2.2 to third parties.
2.3 Distribution License. Subject to the terms and conditions of
this
Agreement, Licensor hereby grants to Licensee, under all of
Licensor's
intellectual property rights in and to the Licensed Software, a
worldwide,
non-exclusive, non-transferable (except as provided in Section
11.1 below)
license to distribute copies, in Object Code format only, of the
Licensed
Software and/or Derivative Works only as incorporated into the
Licensee
Products. Except as expressly provided in Section 2.4 below,
Licensee shall have
no right to sublicense the rights granted under this Section 2.3
by Licensor.
Licensee shall not distribute or market the Licensed Software
and/or Derivative
Works in any manner except as expressly provided in this Section
2.3.
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2.4 Sublicensing of Licensed Software by Licensee.
2.4.1 Restrictions. Each Licensee Product shall be distributed
by
Licensee or its distributors with a license, which applies to
the Licensed
Software and/or Derivative Works and which shall contain terms
that are at least
as protective of Licensor's rights as are the terms set forth on
Schedule C
attached to this Agreement. Licensor shall provide Licensee with
a copy of such
license and any subsequent versions thereof for its use in
licensing the
Licensed Software and/or Derivative Works.
2.4.2 Warranties & Indemnity. Licensee shall be solely
responsible for, and Licensor shall have no obligation to honor,
any
representations or warranties that Licensee provides with
respect to the
Licensee Products. Licensee shall be solely responsible for, and
Licensor shall
have no obligation to honor, any warranties that Licensee
provides to its
customers with respect to the Licensed Software, Derivative
Works or Licensee
Products. Licensee shall defend any claim against Licensor
arising in connection
with any such warranties to Licensee's customers, express,
implied, statutory,
or otherwise, and shall pay any settlements or damages awarded
to Licensor that
are based on any such warranty.
2.4.3 Infringements. Licensee agrees to use reasonable
commercial
efforts to enforce violations or infringements under any
sublicense agreements
for the Licensed Software and/or Derivative Works and to inform
Licensor
promptly of any known violation, infringement or breach.
2.5 Rights in Licensee Products and Derivative Products. The
Derivative
Works, the Licensee Products and any enhancements or
improvements created by
Licensee by embedding Licensor's intellectual property rights in
such Products
shall constitute the sole and exclusive property of
Licensee.
2.6 Documentation. Licensee shall be responsible for preparing
end-user
documentation for Licensee Products that incorporate the
Licensed Software
and/or Derivative Works. For such purpose, Licensor hereby
grants to Licensee a
non-exclusive, non transferable license (except as provided in
Section 11.1) to
modify and create derivative works of those portions of the
Licensor
Documentation that are not labeled "Licensor Confidential,"
proprietary or by a
similar term and are designated by Licensor as usable for such
purpose.
Appropriate credits shall be given to Licensor in such
documentation.
Licensor agrees that during the term of this Agreement it shall
make
available for review by Licensee and Licensee's designated
representatives,
subject to appropriate confidentiality agreements, if any
reasonably required by
Licensor, copies of all Licensor Documentation, Source Materials
and Source
Code.
2.7 Proprietary Notices. Licensee agrees that each copy of the
Licensed
Software, Derivative Works and Documentation, and all
packaging-related medium
used for their distribution, shall include reproductions of the
copyright
notices and other proprietary legends of Licensor, in computer
Object Code
format or otherwise, which accompany such items. Licensee shall
not remove,
efface or obscure any copyright notices or other proprietary
notices or legends
from any Licensor materials provided hereunder.
2.8 Ownership; Derivative Works. Licensor shall retain all
right, title
and interest, including all intellectual property rights, in and
to the Licensed
Software and Licensor
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Documentation. The Licensee shall own all Derivative Works
created solely by the
Licensee to the extent that such ownership by Licensee of the
Derivative Works
shall not effect, abridge, encumber, diminish, or otherwise
impair the
intellectual and any other property rights of Licensor in and to
the Licensed
Software.
2.9 Upgrades and Enhancements to Source Code. If Licensee elects
to
obtain upgrades and enhancements to the Source Code, Licensor
shall promptly
provide Licensee with any upgrades, modifications, revisions or
enhancements to
the Source Code (the "Upgrade Services"). In such event,
Licensee shall pay
Licensor an annual upgrade fee equal to $15,000, payable 90 days
after execution
of this Agreement (the "Upgrade Fee"), and on each anniversary
date of such
ninetieth day thereafter. The $15,000 Upgrade Fee is the total
annual fee for
Upgrades hereunder and under the MeterFlow Agreement. The
Upgrade Services, and
Licensee's obligation to pay the Upgrade Fee, may be
discontinued by Licensee at
any time by written notice to Licensor.
3. LICENSE FEES AND ROYALTIES
As consideration for the licenses granted by Licensor to
Licensee
pursuant to Section 2 above, Licensee agrees to pay license fees
and royalties
to Licensor pursuant to the payment plan set forth on Schedule D
attached to
this Agreement.
4. [INTENTIONALLY DELETED]
5. WARRANTIES, MAINTENANCE AND UPGRADES
5.1 Ownership Warranty. Licensor warrants that it is the owner
of the
Licensed Software and the Licensor Documentation and that it has
the right to
grant the licenses described in Section 2 above.
5.2 Limited Warranty. Licensor warrants that for a period of one
year
following delivery to Licensee, the Licensed Software ("Initial
Warranty
Period") will perform substantially in accordance with the
specifications set
forth on Schedule A. Licensor does not warrant that the Licensed
Software will
be error-free or will operate without interruption. Licensee's
exclusive remedy
for breach of the warranty contained in this Section 5.2 shall
be to notify
Licensor of the problem in which event Licensor shall use all
reasonable efforts
to correct such problem. If Licensor, after reasonable efforts,
is unable to
remedy any material failure of the Licensed Software to perform
in accordance
with these specifications, Licensee may terminate this Agreement
and shall have
no further obligations hereunder. Licensor makes no warranty
with respect to the
Derivative Works.
5.3 Maintenance. Licensor shall provide Licensee with
maintenance for
the Licensed Software in accordance with the terms of Schedule E
attached to
this Agreement (the "Maintenance Services"). The fee for the
Maintenance
Services shall be $15,000 per year, with the initial fee due and
payable upon
expiration of the Initial Warranty Period set forth in Section
5.2 and covering
the period ending one year after expiration of the Initial
Warranty Period.
Thereafter, the Licensee may, but shall not be obligated to,
continue the
Maintenance Services, in its discretion, by payment of a $15,000
Maintenance Fee
for each year thereafter. The $15,000 Maintenance Fee is the
total annual
Maintenance Fee hereunder and under the MeterFlow Agreement.
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5.4 End User Support. Licensee shall, at its own expense, be
solely
responsible for providing technical support and training to its
customers for
Licensee Products. Licensee shall be solely responsible for, and
Licensor shall
have no obligation to honor, any warranties that Licensee
provides to its
customers with respect to the Licensed Software. Licensee shall
defend any claim
against Licensor arising in connection with any such warranties
to Licensee's
customers, express, implied, statutory, or otherwise, and shall
pay any
settlements or damages awarded to Licensor that are based on any
such warranty
5.5 Product Functionality. Licensor warrants that for a period
of one
(1) year from the receipt of the Licensed Software (as defined
in Schedule A),
the Source Code version will contain no Non-Conformances. During
the Initial
Warranty Period, if Licensee notifies Licensor of a
Non-Conformance, Licensor,
at its own expense, shall bring the Source Code version into
substantial
conformance with the appropriate RFC's as outlined in Schedule G
of this
Agreement. As set forth in Section 5.3, above, Licensor will
support the
Licensed Software in conjunction with the support and
maintenance services set
forth in Schedule E provided that the Licensee pays for such
services after
expiration of the Initial Warranty Period as outlined in
Schedule E and Section
5.3 above.
5.6 Licensor Warranty Disclaimer. EXCEPT AS SET FORTH IN THIS
SECTION
5, LICENSOR HEREBY DISCLAIMS ALL WARRANTIES TO LICENSEE OR ITS
CUSTOMERS,
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE
LICENSED SOFTWARE
OR DERIVATIVE WORKS, INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE EXPRESS
LIMITED
WARRANTY STATED ABOVE IS IN LIEU OF ALL LIABILITIES OR
OBLIGATIONS OF LICENSOR
FOR DAMAGES INCLUDING, BUT NOT LIMITED TO, INCIDENTAL OR
CONSEQUENTIAL DAMAGES
OCCURRING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF
THE LICENSED
SOFTWARE, DOCUMENTATION, SOURCE CODE, SOURCE MATERIALS OR
DERIVATIVE WORKS.
6. TRADEMARKS
Licensee acknowledges that, any symbols, trademarks and service
marks
adopted by Licensor to identify the Licensed Software
("Trademarks") belong to
Licensor and that Licensee shall have no rights in such
Trademarks except as
expressly set forth herein. All Licensee documentation,
associated brochures,
packaging and advertising shall display the MeterWorks Enabled
logo. Such
Trademarks shall be used in accordance with Licensor's
guidelines for use of the
Trademarks issued from time to time. Samples of all materials
that may be
distributed by Licensee displaying the Trademarks shall be
submitted to Licensor
upon Licensor's reasonable request to verify compliance with
Licensor's
guidelines for use of the Trademarks, and the Trademarks shall
be used only in a
form so approved by Licensor. Any good will arising out of the
use of Licensor's
Trademarks hereunder shall inure to the benefit of Licensor. At
no time will
Licensee challenge or assist others to challenge Licensor's
MeterWorks to
identify the Licensed Software or the registration thereof or
attempt to
register any trademarks, marks or trade names confusingly
similar to those
Trademarks.
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7. INTELLECTUAL PROPERTY INDEMNITY
7.1 Indemnity. Licensor shall defend Licensee against any claim
that
the Licensed Software used within the scope of this Agreement
infringes a United
States copyright or trade secret under applicable state or
federal law and shall
pay any settlements entered into or damages awarded against
Licensee to the
extent based on such a claim, provided that (i) Licensee
notifies Licensor
promptly in writing of the claim; (ii) Licensor has sole control
of the defense
and all related settlement negotiations; (iii) Licensee provides
Licensor with
all necessary assistance, information, and authority to perform
the above;
provided that if in providing such assistance, Licensee is
obligated to provide
personnel to spend time beyond that normally expected with
respect to minor,
routine inquiries, Licensee shall not be obligated to provide
such assistance
unless its personnel are compensated at the fully burdened cost
of their
employment plus reimbursement for all associated out-of-pocket
expenses, with
respect to all time spent in assisting Licensor with respect to
the foregoing.
If Licensor fulfills its defense obligations hereunder, Licensee
shall defer to
Licensor's forum selection for any such infringement
actions.
7.2 Exclusions. Licensor shall have no liability for any claim
of
infringement based on (i) use of other than the latest release
of the Licensed
Software if the infringement would have been avoided by use
of
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