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
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