Software License and
Maintenance Agreement ("AGREEMENT")
THIS AGREEMENT
IS BETWEEN MSS TECHNOLOGIES, INC. ("DISTRIBUTOR") AND EXABYTE
CORPORATION HAVING ITS PRINCIPAL PLACE OF BUSINESS AT 2108
55 STREET BOULDER, CO 80303 . The terms of this Agreement shall
apply to the Software (defined below), and all Maintenance provided
by MSS to Customer. For purposes of this Agreement, "Customer"
shall include EXABYTE CORPORATION and its Affiliates
(defined below).
THE LICENSED
PRODUCTS ARE LICENSED BY MSS FROM J.D. EDWARDS WORLD SOURCE
COMPANY, A COLORADO CORPORATION ("J.D. EDWARDS SOURCE"). J.D.
EDWARDS AND J.D. EDWARDS SOURCE ARE OWNED ULTIMATELY BY J.D.
EDWARDS & COMPANY, A DELAWARE CORPORATION. J.D. EDWARDS &
COMPANY, J.D. EDWARDS WORLD SOLUTIONS COMPANY, AND J.D. EDWARDS
SOURCE HAVE THEIR PRINCIPAL PLACES OF BUSINESS AT ONE TECHNOLOGY
WAY, DENVER, COLORADO 80237. J.D. EDWARDS EUROPE, LTD. AND J.D.
EDWARDS (ASIA PACIFIC) PTE. LTD HAVE THEIR PRINCIPAL PLACES OF
BUSINESS AT DUBLIN, IRELAND AND SINGAPORE, RESPECTIVELY.
ARTICLE I.
DEFINITIONS
For purposes of
this Agreement, the following terms shall mean:
1. Accessory
Software
Software
delivered with the Licensed Products but which require Customer to
agree to a separate license with a third party (such as a "pop up",
"shrink wrap", "click" or other license) prior to their
use.
2.
Affiliate(s)
Those entities
under common control and ownership of the entity first identified
as the Customer above. Common control and ownership is defined as
direct or indirect ownership of a voting interest of greater than
fifty percent (50%) or the right or power, directly or indirectly,
to elect a majority of the Board of Directors. Customer agrees to
confirm the Affiliate status of an entity upon request by MSS. In
the event an Affiliate ceases to comply with this definition, this
Agreement will terminate solely as it relates to the former
Affiliate in accordance with the termination provisions in Article
IV, Section 9.
3.
Attachment
The document by
which Customer licenses the Licensed Products and orders Services
and/or Maintenance and which shall, upon signature of both parties,
be incorporated into this Agreement.
4.
Client(s)
The computer
(including operating system) or device used by Licensed Users to
access and use the Licensed Products through the means of an end
user software program or interface (including a web-browser or
Java-enabled interface) and which processes and/or issues commands
for processing on a Server. These include, but are not limited to,
personal computers, network computers, Windows Terminals, and other
similar hardware or display devices.
5.
Confidential Information
The a) Licensed
Products, b) Developed Software and c) other information of the
parties when it is presented in printed, written, graphic, or
photographic or other tangible form (but including information
received, stored or transmitted electronically) and marked as
"confidential", "Proprietary", "Disclosure Private", or
"Restricted" by the Discloser. Confidential Information also
includes information of the parties, when presented in oral form,
that is recorded as written minutes or notes of such oral
presentations and which are marked "Confidential" and provided to
Recipient within thirty (30) days after the date of
disclosure.
6. Customer
System(s)
The Deployment
Server(s), associated enterprise server(s), Clients, application
and database servers, and other Servers on which the Licensed
Products are installed and/or deployed by Customer.
7.
Deployment Server(s)
The Server
designated on an Attachment to this Agreement and utilzed to deploy
the Licensed Products to the Clients, enterprise server and/or
other Servers on which the Licensed Products reside in a
distributed network environment.
8. Derived
Software
Software
programs or modifications to the Software created through the use
of a development tool licensed hereunder and developed by Customer,
its employees or third party agents (not MSS).
9. Developed
Software
Software
programs or modifications to the Licensed Products developed by MSS
for Customer including source (if any) and object code for such
Developed Software and any related documentation. MSS shall own all
right, title and interest in any Developed Software.
10.
Discloser
The party
disclosing Confidential information.
11. License
Fee
The fee defined
in Article IV, Section 10(A).
12. Licensed
Product(s)
The computer
programming code, including object code and any source code which
may be provided, for the software programs identified as Licensed
Products in each Attachment to this Agreement, any Software Updates
(as defined in the Maintenance Agreement) and the Published Product
Specifications. The Licensed Products do not include Accessory
Software.
13. Licensed
Users
Users licensed
to access and use the Licensed Products in accordance with any user
type definitions(s) contained the Attachment(s) to this
Agreement.
14.
Published Product Specifications
All on-line
help material included within the Licensed Products and all of the
user, technical, and training guides (in whatever media) associated
with the Licensed Products, as they may exist from time to
time.
15.
Recipient
The party
receiving Confidential information.
16.
Server
A device
(including operating system) that processes the commands or
requests of a Client or multiple clients, and/or that stores
information for use by such Client(s).
17.
Software
The Licensed
Products and Developed Software.
18.
Supported Platform(s) The hardware and software platforms which are
supported by J.D. Edwards for specific release
of the Licensed Products as documented from time to time in the
Published Product Specifications.
ARTICLE II. SOFTWARE LICENSE
("LICENSE")
1. LICENSE
GRANT
(A) Subject to
the terms and conditions in this Agreement, MSS grants to Customer
a non-exclusive, non-transferable, perpetual limited license to use
the Licensed Products on the Customer System(s) indicated in any
Attachments executed from time to time by the parties. MSS
represents that it possesses all rights and interests in the
Licensed Products necessary to enter into this Agreement. Customer
has the right to use only the Licensed Products selected on any
Attachment to this Agreement and shall have no right to use any
other Licensed Products that are delivered to Customer but not
selected and Licensed hereunder.
(B) Subject to
the terms and conditions in this Agreement MSS grants to Customers
a non-exclusive, non-transferable perpetual limited license to use
any Developed Software.
(C) MSS grants
to Customer the right to create Derived Software without the
consent of MSS. Customer shall own all right, title and interest in
and to any Derived Software except MSS shall retain sole ownership
of such portions of the Derived Software that contain part or all
of the Software. Use of such Software included in the Derived
Software shall remain subject to the provisions of this
Agreement.
2. LICENSE
USE
(A) Customer
shall use the Software only on the Customer System(s) identified in
Attachments attendant to this Agreement or identified in writing as
provided pursuant to subsection (D) of this section. Customer shall
not copy the Software without the written permission of MSS except
for a reasonable number of copies necessary for Customer's backup,
archival and in-house disaster recovery purposes. Subject to the
notification provisions contained in this Article, Customer may
also copy the Software as reasonably necessary to support the
maximum number of Licensed Users licensed under this Agreement.
Customer will reproduce and include the patent, copyright, trade
secret, trademark or other restrictive and proprietary legends from
the original on all copies. All copies will be subject to the terms
of this Agreement. Customer shall not allow the Software to be used
by anyone other than its employees, except for those accesses
provided for under Section 3 of this Article and Article IV,
Section 2. The Software may not be used or sublicensed by Customer
for the purpose of commercial timesharing, service bureau or other
rental or sharing arrangements. MSS may, from time to time, deny
Customer the right to license in or move the Software to certain
countries in order to protect MSS' intellectual property
interests.
(B) Customer
shall not:
(i)
reverse engineer any part of the Software, provided, however, that
if the Licensed Products are located in a jurisdiction whose laws
explicitly permit some form or reverse engineering, Customer may do
so solely to the extent so permitted by such law. Customer agrees
to notify MSS prior to doing so;
(ii) distribute, sell or otherwise transfer any part of the
Software; and
(iii) remove the patent, copyright, trade secret, trademark, or
other proprietary protection legends or notices that appear on or
in the Software.
(C) Customer
may provide for disaster recovery services on a computer system
provided for such purpose by a third party organization. The
Software loaded upon a disaster recovery system will only be
operational, other than for disaster recovery test purposes, in
case of disaster conditions and inoperability of the Customer
System(s). Customer agrees to cease using the Software on the
disaster recovery system immediately upon restoration of the
Customer System(s) to proper operating condition. Customer agrees
to provide MSS an original of the MSS Non-disclosure Agreement
executed by the third party organization and notice of the
location, computer type, and model and serial number (if
applicable) of the cpu(s) on which the Licensed Products will be
installed. Customer agrees to be fully responsible to MSS for all
damages for any unauthorized use, disclosure, or duplication of the
Software resulting from its possession by the third party
organization.
(D) Customer
shall notify MSS in writing of any of the following
changes:
(i) a change in location of a Deployment Server or Customer
System(s).
(ii)
a reallocation of the number of Licensed Users for any Deployment
Server(s) or Customer System(s).
(iii) a change in any model, feature, serial number, and allocation
of Licensed Users for an AS/400 on which the WorldSoftware is
installed.
In addition,
Customer shall provide fifteen (15) days advance written notice for
any change in the type of Supported Platform for any Customer
System.
3. THIRD
PARTY ACCESS
MSS agrees that
Customer may allow its customers, vendors or other entities in a
similar relationship to Customer to access the Licensed Products
and use the same for the purpose of conducting inquiries and other
limited activities so long as Customer can demonstrate the
following:
(i) none of the aforementioned entities, at any time, has access to
J.D. Edwards' source code;
(ii) their access is restricted to screen access and to those
specific functions they are required to perform;
(iii) under no circumstances will they use the Software to operate
their own businesses;
(iv) the provision of the J.D. Edwards software or services is not
the primary purpose, value, performance, or cost of the
relationship between Customer and the entity;
(v) the entity does not compete with J.D. Edwards;
(vi) such access is not a violation of the Article IV, Section 11,
Export Controls; and
(vii) each such user shall be licensed as a Licensed User under
this Agreement.
In
consideration of this grant of access by MSS, Customer agrees to
take all necessary steps to insure that the Licensed Products and
the trade secret, proprietary and/or confidential information
contained within the Licensed Products are not disclosed under this
provision to any person other than the entities described above who
have a need for access and use as provided above. Customer further
agrees to be responsible for all the acts and omissions of the
third parties who are granted access under the Section as if they
were Customer's own acts or omissions, and Customer agrees to
indemnify MSS against any damages it incurs resulting from such
accesses.
4.
AUDIT
On MSS' written
request, not more frequently than annually, Customer shall furnish
MSS with a signed certification (i) verifying that the Licensed
Products are being used pursuant to the provisions of this
Agreement and Attachment(s), including the limitations on Licensed
Users; and (ii) listing the locations and types of the Customer
System(s), and the location of the Licensed Users (including user
type) associated with each Customer System and at any other
location accessing the Customer System(s) via remove access. MSS,
not more frequently than annually and at its own expense, may audit
Customer's use of the Licensed Products. Any such audit shall be
conducted during regular business hours at Customer's facilities
and shall not unreasonably interfere with Customer's business
activities. If a certificate of an audit reveals that Customer has
underpaid fees to MSS, Customer shall be invoiced for such
underpaid fees at MSS' then-current list prices for the actual
number of users. If the underpaid fees exceed [...***...] percent
([...***...]%) of the License Fees paid, then Customer also shall
pay MSS' reasonable costs of conducting the audit.
ARTICLE III. SOFTWARE
UPDATES/SUPPORT LINE
("MAINTENANCE")
1.
MAINTENANCE SERVICES
(A) Maintenance
includes the Software Updates and Support Line services. Customer
may request and MSS will provide Maintenance for the Licensed
Products licensed by customer under Article II of this Agreement to
the same extent and degree that MSS makes such Maintenance
generally available to its Customers. Customer may not elect to
exclude any of the Licensed Products or Licensed Users from the
Maintenance services during the Period of Coverage. If Licensed
Products are being used in a client/server or distributed network
environment ,Customer agrees to make a reasonable effort to
establish and maintain an internal competency center or help desk
which provides a central point of contact with the MSS Support Line
to coordinate the Maintenance provided under this
Agreement.
(B) Sixty (60)
days prior to the end of the Period of Coverage MSS shall provide
Customer with a quote to extend Maintenance for one (1) year at
MSS' then current prices.
(C) Maintenance
shall be provided in accordance with MSS' policies in effect at the
beginning of each annual renewal of the Period of Coverage. Fees
for the reinstatement of lapsed Maintenance shall be charged in
accordance with MSS' policy for reinstatement fees in effect on the
date of such reinstatement.
(D) All
software or data delivered by the Support Line shall become part of
the Licensed Products.
*Confidential Treatment
Requested
(E) Customer is
responsible for the installation of all software or data delivered
by the Support Line, and upgrades from one release to the next of
the Licensed Products.
ARTICLE IV.
GENERAL
1.
PROPRIETARY RIGHTS
(A) The
Software provided under this Agreement has substantial monetary
value and is proprietary to J.D. Edwards Source. The Software
contains trade secrets, inventions, ideas, data, source and object
codes, and other works of authorship protected by copyright and
trade secret laws, and may be the subject of one or more pending
patent applications or issued patents. The Licensed Products may
also include copyrighted and proprietary material of third parties
for which J.D. Edwards and J.D. Edwards Source have been granted a
right to use and distribute. J.D. Edwards Source and any third
party suppliers shall retain ownership of all rights, title and
interest to their respective portions of the Licensed Products and
all releases thereof. All enhancements and modifications made by
MSS or J.D. Edwards which are provided under the warranty or
Software Update provisions of this Agreement will remain
proprietary to J.D. Edwards Source.
(B) Upon
Knowledge of any unauthorized possession or use of, or access to,
any Software licensed hereunder, Customer shall notify MSS as soon
as possible. Customer shall promptly furnish MSS with full details
of such situation, assist in, preventing any recurrence thereof,
and cooperate at MSS or J.D. Edwards' expense in any litigation or
other proceedings reasonably necessary to protect the intellectual
property rights of J. D. Edwards' and J.D. Edwards
Source.
(C) The
Licensed Products contain software protection procedures which, in
the event of unauthorized use, may limit access to the Licensed
Products or which may limit the number of users having access
to
