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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.
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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
