Preview of our top selling Technology Licensing Agreement
J.D. Edwards / Seagull Software Systems - Technology License Agreement Dated April 1, 1999
Effective Date: As of April 1, 1999
This Agreement is between Seagull Software Systems, Inc., a Georgia corporation with a principal place of business at 3340 Peachtree Road NE, Suite 900, Atlanta, GA 30326 ("SEAGULL") and J. D. Edwards & Company, a Colorado corporation with a principal place of business at One Technology Way, Denver CO 80237 ("Customer").
INTRODUCTION
SEAGULL's J Walk(TM) product line includes J Walk Developer, which is used by software development professionals to build enhancements to existing AS/400 applications. J Walk Developer yields .JWR Files. In order to operate, .JWR Files require (1) J Walk Server base license(s) corresponding to the AS/400 that hosts the enhanced application; and (2) J Walk Client licenses for any and all concurrent end-users of the .JWR Files and, optionally; (3) Additional J Walk Server licenses.
SEAGULL's GUI/4007"" product line includes GUI/400 ADK, which is used by software development professionals to build enhancements to existing AS/400 applications. GUI/400 ADK yields .AWR Files. In order to operate, .AWR Files require GUI/400 RTS Pro licenses for any and all concurrent end-users of the .AWR Files.
Customer has used J Walk and GUI/400 to enhance its WorldSoftware application; marketing the enhancements as an additional product called "WorldVision".
DEFINITIONS
A. "Developer Tools" means J Walk Developer or GUI/400 ADK
B. "Client Licenses" means GUI/400 RTS Pro or J Walk Client in object code
form
C. "GUI Panel Files" means .JWR files and/or .AWR files
D. "Components" means Client Licenses and/or J Walk Server in object code form
and all corrections and updates thereto which Customer is eligible to
receive under this Agreement, plus associated user documentation in
machine-readable form
E. "End Users" means an individual or entity that licenses Customer's
Application that has been enhanced with J Walk and/or GUI/400
F. "Customer's Application" means Customer's commercial software application
currently known as WorldSoftware.
WHEREAS:
A. SEAGULL develops, markets, and maintains J Walk and GUI/400 and is
currently shipping J Walk version 3.x and GUI/400 version 4.x; and
B. Customer has licensed J Walk Developer and GUI/400 ADK to develop a
graphical user interface ("GUI") and other enhancements for Customer's
Application; and
C. Customer distributes to licensed users of Customer's Application GUI Panel
Files in object code form in accordance with the terms of the J Walk
Developer and/or GUI/400 ADK Software License Agreement; and
D. Client Licenses and J Walk Server are SEAGULL products which are required
to activate Customer's GUI Panel Files; and
E. Customer wishes to facilitate GUI installation by also providing the Client
Licenses and J Walk Server to licensed users of Customer's Application
whether such licensed users are in Customer's organization or in third
party organizations ("End Users") in accordance with certain terms and
conditions;
NOW, THEREFORE, the parties hereto have executed this Agreement and agree to be bound by the terms and conditions hereof.
Attached hereto and incorporated by reference are the following documents:
Exhibit A: J Walk Developer Software License Agreement
Exhibit B: GUI/400 ADK Software License Agreement
Exhibit C: Standard Software License Agreements for the Components
Exhibit D: Price Schedule
Exhibit E: Support Services Agreement
Exhibit F: Escrow Agreement
1. GRANT OF LICENSE
A. SEAGULL hereby grants to Customer a non-transferable, worldwide,
non-exclusive, restricted right to (x) reproduce and/or have reproduced by
its authorized agent and (y) distribute Components to End Users, directly
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or through Customer's authorized distributors, subject to and in accordance
with the terms of this Agreement. Customer may reproduce and distribute
Components:
i. Only to End Users of Customer's Application for use solely with
Customer's Application.
ii. Only in conjunction with, linked to, and incorporated as part of
Customer's Application. No distribution may be made of Components as a
stand-alone product or in any form other than in conjunction with,
linked to and incorporated into Customer's Application.
iii. Only to End Users in countries with copyright and proprietary rights
regulations sufficient to protect the Components in accordance with
the License Agreement.
iv. All distribution to and use by End Users must be subject to a software
license agreement no less restrictive or materially less protective of
SEAGULL's rights in the Components than SEAGULL's applicable standard
software license agreements for the Components attached hereto as
Exhibit C. For each jurisdiction in which Customer distributes the
Components, it is Customer's responsibility to use a software license
agreement which complies with the laws of the jurisdiction.
v. Including any and all of SEAGULL's trade secret, copyright, patent,
and trademark notices originally included in the Components as
provided to Customer by SEAGULL.
B. Customer agrees not to reverse engineer, reverse compile, or otherwise
disassemble the Components.
C. Under this license, Customer may copy, modify, revise and distribute to End
Users any user documentation provided with the Components without
limitation.
D. A reasonable number of copies of the Components may be used by Customer
employees on Customer computers at no charge for demonstration purposes.
From time to time, with SEAGULL's written approval, demonstration copies
may be provided to Customer's business partners and/or prospects subject to
any terms and conditions specified by SEAGULL.
E. Unless otherwise modified by express reference in this Agreement, Customer
agrees that Customer's use of J Walk Developer is governed in all respects
by the J Walk Developer Software License Agreement attached hereto as
Exhibit A and Customer's use of GUI/400 ADK is governed in all respects by
the GUI/400 ADK Software License Agreement attached hereto as Exhibit B.
F. The parties acknowledge that the Developer Tools and Components utilize
security devices and authorization codes (currently, physical devices and
software programs for the Developer Tools and a software license manager
for the components) to assist with the prevention of unauthorized or
unlicensed use of such software. Customer agrees not to interfere with the
operation of such security devices or authorization codes. Upon execution
of this Agreement and from time to time, SEAGULL will provide to Customer
sufficient security devices and authorization codes for Customer to utilize
the licensed copies of J Walk Developer and GUI/400 ADK during the term.
G. The rights of Customer to demonstrate, reproduce and distribute the
Components may be exercised by a Customer business partner who preloads the
Customer Application on an AS/400 and ships the pre-configured software and
hardware to an End User or other business partner, so long as Customer
causes such direct or indirect business partners to be bound by all the
terms and conditions of this Agreement, including without limitation,
subsection 1.A.ii above, except that the fees payable by such End User or
business partner and other economic terms (collectively, "Economic Terms")
may be established by Customer (subject to the obligations of Customer to
pay SEAGULL the fees hereunder). Customer agrees that all authorization
codes for End Users shall be generated by Customer from the Authorization
Code Generator (defined in Section 2 hereof) and not by any business
partner. Customer shall indemnify and hold harmless SEAGULL from and
against any and all losses, costs and damages arising from the failure to
cause such business partners to be bound by the terms and conditions of
this Agreement.
H. The rights of Customer to demonstrate, reproduce and distribute the
Components may be exercised by a Customer business partner who operates the
Customer's Application combined with the Components in an outsourcing
environment (such as serving multiple copies of Customer Applications on a
single computer server or multiple Customer Applications on multiple
computer servers), so long as (i) Customer causes such business partner to
be bound by all the terms and conditions of this Agreement, including
without limitation, subsection 1.A.ii above, except for Economic Terms
(subject to the obligations of Customer to pay SEAGULL the fees hereunder),
(ii) Customer provides to SEAGULL at least semiannually a list in writing
of all such business partners prior to the time that such business partner
begins to provide timeshare services utilizing the Components, (iii)
Customer provides to SEAGULL at least semiannually a list in writing of all
End Users who receive or are to receive services utilizing the Components
from each such business partner prior to or
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contemporaneously with the provision of such services by such business
partner, and (iv) Customer issues a separate authorization code from the
Authorization Code Generator for each single customer of Customer, even if
multiple customers share a single computer server, such that no customer of
Customer shares common Component files with another customer of Customer.
Customer shall indemnify and hold harmless SEAGULL from and against any and
all losses, costs and damages arising from the failure to cause such
business partners to be bound by the terms and conditions of this
Agreement.
2. AUTHORIZATION CODES
Upon execution of this Agreement, SEAGULL will provide to Customer a
computer software program in executable code only that is designed to
generate authorization codes ("Authorization Code Generator") which
activates the license management routines within the Components. Customer
is licensed to use the Authorization Code Generator internally during the
term solely for the purposes of generating the authorization codes required
to activate the Components sublicensed by Customer. The Authorization Code
Generator itself will automatically expire on each anniversary of the
Effective Date. So long as Customer is not in default under the terms and
conditions of this Agreement, SEAGULL will reactivate the Authorization
Code Generator promptly at or before the Authorization Code Generator
expires. Customer acknowledges and agrees that the Authorization Code
Generator automatically generates and sends to SEAGULL certain information
about each End User, including the following:
a. End User Company Name
b. AS/400 Serial Number and Location (City, State/Province, Country)
c. Number of Client Licenses requested
Customer shall not interfere with the operation of the Authorization Code
Generator or prevent the information generated by the Authorization Code
Generator from being delivered electronically to SEAGULL.
3. FEES AND PAYMENT
In consideration for the rights and privileges granted under this
Agreement, Customer shall pay to SEAGULL a license fee for each Client
License requested as described in Section 2 above or otherwise distributed
directly or indirectly by Customer to End Users for use as contemplated by
this Agreement. All requests for Client Licenses as described above shall
be considered to be governed by this Agreement. The license fee payable
shall be in accordance with the price schedule attached hereto as Exhibit
D. For clarification purposes, the parties acknowledge that there is no
separate license fee payable for copies of the J Walk Server software, the
license fees for such software being based on the number of concurrent
users of the Client Licenses.
SEAGULL shall invoice Customer quarterly for all license fees, sales, use,
value added and similar taxes, and shipping charges (if any) accrued during
the quarter and Customer agrees to pay such invoices within twenty (20)
days of receipt. Past due amounts will be subject to a late fee of 1.5% per
month. Security devices may interrupt the use of software for which fees
due have not been paid.
4. SUPPORT SERVICES
Support services as defined per the Support Services Agreement attached
hereto as Exhibit E are included at no additional charge for the term of
this Agreement. In accordance with SEAGULL's standard procedures, support
services are provided to Developer Kit licensees.
Customer is considered to have a valid license for the following Development Kits.
5 GUI/400 ADK
5 J Walk Developer
Customer shall receive one master copy of software updates (including
updates to the Components) for the above-referenced Developer Kits and may
apply such software updates to each of said Developer Kits. In turn,
Customer may provide applicable updates to the Components to any and all
End Users for whom a license fee has been paid to SEAGULL in accordance
with the terms of this Agreement. Such updates may also be distributed to
End Users licensed to use the Components prior to the effective date of
this Agreement under prior agreements between the parties. Notwithstanding
the foregoing, SEAGULL may elect not to provide Customer with new versions
of J Walk Server that incorporate functional enhancements that increase the
capabilities of J Walk Server beyond the capabilities provided as of the
Effective Date ("New Versions"). Any license of New Versions is subject to
each party mutually agreeing to such license at a later time. For the
purposes of describing whether additional capabilities are incorporated
into a version of J Walk Server, the capabilities of J Walk Server are
currently as follows: J Walk Server connects to the Customer Application
running on AS/400 computers, maintains a persistent connection, stores and
manages user interface definitions (i.e., .JWR files and .AWR files) and
delivers a thin client viewer to Microsoft Windows and JAVA users. To the
extent that any New
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Versions are not provided to Customer without charge, Seagull shall develop
and provide to Customer without charge an update to the Developer Tools and
Components, as applicable, that contains any error corrections contained in
such New Versions that are applicable to the versions of such software
licensed by Customer herein.
Customer may designate up to ten individuals who are authorized to contact
SEAGULL Customer Support for hotline telephone support services.
CUSTOMER SHALL REMAIN SOLELY RESPONSIBLE TO END USERS FOR SUPPORT, SERVICE,
UPDATES, MAINTENANCE OR TECHNICAL ASSISTANCE. END USERS SHALL HAVE NO RIGHT
TO CONTACT SEAGULL DIRECTLY FOR CUSTOMER SUPPORT AND MAINTENANCE SERVICES
UNDER THIS AGREEMENT.
5. TITLE
Customer acknowledges that the Components are proprietary to SEAGULL and
that SEAGULL retains all right, title and interest in and to the
Components, including without limitation all copyrights and other
proprietary rights.
6 TERM
The term of this Agreement shall commence on April 1, 1999 and end on
October 31, 2001, unless terminated in accordance with Section 7 below.
7. TERMINATION
Either party may terminate this Agreement by written notice to the other
party under the following conditions:
A. If the other party shall file petition of bankruptcy, shall be
adjudicated bankrupt, shall take advantage of the insolvency laws as a
debtor of any jurisdiction to which it is subject, shall take
assignment for benefit of creditors, shall be voluntarily or
involuntarily dissolved, admit in writing its inability to pay debts
as they come due, or shall have a receiver, trustee or any other
officer appointed for its property and such receiver, trustee or other
court officer not dismissed within ninety (90) days of his/her
appointment.
B. Should either party fail to fulfill any of its material obligations
hereunder and shall have failed to cure such default within thirty
(30) days after receipt of written notice describing such default, the
nondefaulting party may, at its option, terminate this Agreement by
giving written notice of termination to the defaulting party,
effective immediately.
C. In the event that Customer has not purchased at least 25,000 Client
Licenses during the period beginning April 1, 1999 and ending October
31, 2000; SEAGULL shall have the right in its sole discretion to
terminate this Agreement by written notice, effective immediately.
8. EFFECT OF TERMINATION
Upon the expiration or earlier termination of this Agreement, Customer
shall have no further right to market or grant rights with respect to the
use of the Components except that:
A. Customer may continue to grant rights, in accordance with the
provisions of this Agreement, for a period of one hundred eighty (180)
days following the expiration or earlier termination of this Agreement
in order to complete quotations or orders made prior to the date of
such expiration or earlier termination ("Wind-Down Use") provided
however that Wind-Down Use shall be null and void in the event of
termination of this Agreement by SEAGULL for cause as described in
Section 7.13 above.
B. In the event of (i) expiration of this Agreement or (ii) SEAGULL's
termination of this Agreement in accordance with the provisions of
Section 7.C above, Customer shall have the right to license the
Components for distribution to End Users under SEAGULL's then-current
standard commercial terms, conditions and pricing. So long as SEAGULL
provides for a program of support for the Components licensed by an
End User, after the term hereof SEAGULL agrees to provide software
support to End Users subject to all of the terms and conditions of
SEAGULL's then-current standard commercial terms, conditions and
pricing.
C. Upon the expiration or earlier termination of this Agreement, End
Users may continue to use the Components in perpetuity provided
appropriate license fees have been paid to SEAGULL therefor, and
provided such use is in accordance with the terms of this Agreement.
D. In the event of termination or expiration of this Agreement, the
provisions of Sections 3, 5, 8 through 14, 16, 17, 18, 20, 21, 22, 23,
24, 27, and 28 shall survive in perpetuity, unless otherwise expressly
limited.
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9. WARRANTIES AND INDEMNIFICATION FOR COPYRIGHT INFRINGEMENT
SEAGULL hereby warrants and represents that the Software is valid and
existing and that SEAGULL owns, or has licensed from the owner, all rights
in the Software necessary to grant the rights herein and there are no
conflicting claims relating to the rights granted herein. The use of
SEAGULL's software as described herein shall not infringe the copyrights,
trademarks, U.S. patents issued as of the Effective Date, and trade secrets
of any third party. As Customers' sole remedy for any breach of any warranty
in this paragraph, SEAGULL agrees to indemnify and hold Customer and End
Users harmless from all loss, expense and damage arising out of any legal
action or suit based upon any claim that the Components infringe on a
copyright, trademarks or trade secrets of any third party, excluding any
claim of such party for consequential damages for losses, profits or
otherwise. By way of clarification, the parties agree that damages in the
nature of a royalty or license fee claimed by a third party alleging an
infringement of such third party's intellectual property rights shall not be
deemed a claim for consequential damages or lost profits. SEAGULL will
defend, at its own expense, any action brought against Customer or End Users
to the extent that it is based on such claim, and will pay all costs and
damages finally awarded in any such suit, including attorney's fees incurred
by Customer or End Users on the conditions: (i) that SEAGULL be notified
promptly in writing by Customer or End User of any notice of any such claim;
and (ii) that SEAGULL shall have sole control of the defense of any actions
against such claim in negotiations toward a settlement or a compromise.
SEAGULL further warrants that to the best of its knowledge, at the time of
shipment from SEAGULL the Software is free of any and all viruses, Trojan
horses, trap doors or any other devices or mechanisms which are intended to
cause the Software to perform any material functions other than those
specified or intended by SEAGULL's published product specifications and that
are intended to halt, disrupt, or sabotage the operation of the Software,
excluding, however the disabling procedures permitted under this Agreement.
SEAGULL further warrants that for a period of thirty (30) days following the
date of installation of the Software at an End User site pursuant to a
license granted by Customer for the Software, the Software will perform
substantially in accordance with SEAGULL's published specifications in
effect on the date of such installation. SEAGULL further warrants that the
published specifications for the Software are accurate in all material
respects however the Software is subject to continued revision and may, at
times, be at variance with such published product specifications and may
contain immaterial defects or errors. During the warranty period, SEAGULL
agrees to correct all substantive errors in the unmodified Software as
reported in writing by Customer, and Customer and its End Users will be
entitled to all corrections to the unmodified Software at no charge.
SEAGULL represents and warrants that the most current releases and all
subsequent releases of the Components (as further described in this Section)
are Millennium Compliant. For purposes of this provision, "Millennium
Compliant" means that the Components: (i) accurately processes date data
(including, but not limited to, calculating, comparing and sequencing) from,
into, and between the twentieth and twenty-first centuries, and (ii)
operates during the time period specified above without error or
interruption relating to date data which represents or references different
centuries or more than one century, provided that all products (e.g.,
hardware, software and firmware) used in combination with the Components
properly exchange date data with the Software. For the purposes of this
Section 9, the most current releases of the Components include (i) GUI/400
RTS Pro release 3.3C2 and higher and (ii) J WALK CLIENT AND J WALK SERVER
RELEASE 2.2 AND HIGHER.
10. DISCLAIMER OF WARRANTY
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE COMPONENTS,
DEVELOPER TOOLS, ALL DOCUMENTATION THEREOF, AND ALL SERVICES PROVIDED
HEREUNDER ARE PROVIDED "AS IS." SEAGULL MAKES NO REPRESENTATION NOR
WARRANTIES, EXPRESSED NOR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER
REGARDING THE COMPONENTS OR DEVELOPER TOOLS OR THEIR USE AND OPERATION ALONE
OR IN COMBINATION WITH CUSTOMER'S APPLICATION OR OTHERWISE. Customer shall
indemnify, defend, and hold SEAGULL harmless from any and all claims,
damages, losses, liabilities, costs and expenses (including reasonable
attorney's fees) arising out of or in connection with Customer's granting to
End Users, business partners or other third parties greater warranties or
indemnifications than are provided to Customer by SEAGULL under this
Agreement or by any representations made by or on behalf of Customer that
are in addition to or in conflict with representations made by SEAGULL in
writing. SEAGULL shall promptly notify Customer of any such claim and shall
provide reasonable cooperation and assistance in connection with such
claims. Neither Customer, its employees, agents, or distributors have any
right to make any other representation, warranty or promise with respect to
the Components.
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11. LIMITATION OF LIABILITY
Neither SEAGULL nor Customer shall be liable for any loss of earnings,
profit or good will suffered by any person including the other party's
customers or for any incidental or consequential damages of any other
person whatsoever or howsoever caused even if either party had been advised
of the possibility of such damages caused either directly or indirectly by
the furnishing of the Components pursuant to this Agreement or for any
other loss of business or damage to the other party or the other party's
customers except where such loss or damage is caused by the gross
negligence or willful misconduct on the part of such party, its agents,
employees, independent contractors or persons acting under its direction or
control. No action, regardless of form, arising out of the transactions
under this Agreement may be brought by Customer more than one (1) year
after the cause of action has occurred.
12. INDEMNIFICATION BY CUSTOMER
Except as otherwise explicitly provided in this Agreement, Customer shall
indemnify, defend, and hold SEAGULL harmless from any and all claims,
damages, losses, liabilities, costs and expenses (including reasonable
attorney's fees) arising out of or in connection with Customer's
distribution of the Components or the use of the Components incorporated in
Customer's Application. SEAGULL shall promptly notify Customer of any such
claim and shall provide reasonable cooperation and assistance in connection
with such claims.
13. EXPORT
Customer may not export or re-export the Components except as authorized by
United States law and the laws of the jurisdiction in which Customer's
Application was obtained. In particular, but without limitation, the
Components may not be exported or re-exported (i) into (or to a national or
resident of) Cuba, Iran, Iraq, Libya, North Korea, Syria or any other U.S.
embargoed country (unless such countries cease to be so limited by United
States laws or regulations) or (ii) to anyone on the U.S. Treasury
Department's list of Specially Designated Nationals or the U.S. Department
of Commerce's Table of Denial Orders. Subject to the foregoing, Customer
may export or re-export the Components.
14. CONFIDENTIAL INFORMATION
Each party to this Agreement may furnish the other party to this Agreement
with certain proprietary or nonpublic information (the "Disclosed
Information"). The furnishing party shall be the "Discloser" and the
receiving party shall be the "Recipient".
For purposes of this Agreement, Confidential Information is defined
as:
(i) Disclosed Information in printed, written, electronic, graphic,
photographic or other tangible form marked as "Confidential",
"Proprietary", "Private", "Restricted", or "Trade Secret" by
Discloser;
(ii) Customer's Application, the Components, and Developer Tools
(collectively, the "Confidential Software");
(iii) Disclosed Information in oral or demonstrative form, recorded as
written minutes or notes of such presentations, which minutes or
notes must be so marked and provided to Recipient within thirty
(30) days after the date of disclosure of the Disclosed
Information;
(iv) Disclosed Information relating to unreleased products or
resolution of technical problems;
(v) all items generated by the Recipient that contain, reflect, or
are derived from Confidential Information under the preceding
clauses (i), (ii), (iii), and (iv); and
(vi) the prices and other economic terms of the parties' relationship
with each other.
Confidential Information shall not include information that:
(i) is or becomes part of the public domain without violation of this
Agreement by Recipient;
(ii) is already in Recipient's possession free of any restriction on
use or disclosure;
(iii) becomes available to Recipient from a third party provided that
such party was free from restriction on disclosure of the
information; or
(iv) has been independently developed by Recipient.
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If Recipient is required by legal proceeding discovery request, Freedom of Information Act (or state equivalent) request, investigative demand, subpoena, court or government order to disclose Confidential Information, Recipient may disclose such Confidential Information provided that:
(i) the disclosure is limited to the extent and purpose legally required;
and
(ii) prior to any disclosure, Recipient shall immediately notify Discloser
in writing of the existence, terms, and conditions of the required
disclosure and, at Discloser's request and expense, cooperate in
obtaining a protective order or other reliable assurance that
confidential treatment will be accorded the Confidential Information.
Except as may be otherwise specifically permitted under this Agreement, Recipient shall hold the Confidential Information in confidence and only disclose the Confidential Information to its officers, employees, consultants, counsel, independent contractors, or agents (collectively "Representatives") who: need the Confidential Information to assist the Recipient for an Authorized Purpose; are under a legal obligation not to disclose the Confidential Information; and
(i) for other than Recipient's employees, have executed a nondisclosure or
confidentiality agreement with Recipient, a copy of which shall be
supplied to Discloser upon request, at least as protective as this
Agreement of the Confidential Information of Discloser.
(ii) Customer may also disclose the Components to customers and business
partners of Customer so long as such persons and entities enter into
written obligations of nondisclosure or confidentiality preventing
disclosure or use except as expressly authorized under the terms of
the license of the Components, which terms shall be no greater than
the license rights expressly allowed hereunder to such customers and
business partners of Customer.
Recipient shall be responsible for any violation of this Agreement by its Representatives and shall use reasonable efforts to restrain its Representatives (including Representatives who, subsequent to the date of this Agreement, become former Representatives) from unauthorized use or disclosure of the Confidential Information.
Recipient shall not export, re-export, or otherwise transmit, directly or indirectly, any software, information, data, or other materials received from Discloser except in full compliance with all United States and other applicable laws and regulations.
Neither the existence of this Agreement nor any disclosure of Confidential Information grants the Recipient any license or rights to or in any Confidential Information. Recipient shall not remove any copyright, trademark, patent, or other proprietary legend on or in the Confidential Information of Discloser. All Confidential Information shall, between Discloser and Recipient, remain the property of Discloser. Upon Discloser's written request, Recipient shall promptly: return all Confidential Information (except for the Confidential Software) of Discloser; and
destroy, and provide written certification to Discloser of such
destruction, all other materials embodying the Confidential
Information of Discloser.
Notwithstanding the preceding sentence, Recipient shall be entitled, solely for dispute resolution purposes, to
(i) retain one copy of the Confidential Information, including any
embodiments. Any such retained copy shall continue to be governed by
the terms and conditions of this Agreement notwithstanding any
termination of this Agreement.
The parties stipulate that a breach of this section 14 by Recipient will cause immediate and irreparable harm and significant injury to Discloser, for which there is no adequate remedy at law and that Discloser shall be entitled, in addition to any other rights and remedies it may have, to specific performance and other equitable remedies to restrain any threatened, continuing, or further breach of this Agreement without proof of actual damages sustained by Discloser. Recipient shall immediately advise Discloser of any discovered breach by Recipient or its
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Representatives of this Agreement and shall reasonably cooperate, at
Recipient's expense, with Discloser in retrieving the disclosed
Confidential Information and restricting any continuing breach
The obligations of this Section 14 shall remain in effect during the term
hereof and, with respect to that Confidential Information that is a trade
secret under law, for so long as such information remains a trade secret
thereafter, and with respect to Confidential Information that is not a
trade secret under law, for a period of three years thereafter. This
section shall survive any termination of this Agreement.
15. SOURCE CODE ACCESS
SEAGULL agrees to maintain current versions of source code for the
Components in deposit with Data Securities International ("DSI") or such
source code escrow service as is mutually agreeable to the parties, and to
register Customer as party that may have access to all such source code
under terms and conditions equal in all material respects to the source
code escrow account currently maintained per the attached Exhibit F.
Customer shall bear the fees charged by escrow agent to maintain such
source code escrow account.
In the event of termination of this Agreement, SEAGULL's obligation to
maintain the above-referenced source code escrow agreement shall terminate
unless Customer and SEAGULL enter into a written maintenance services
agreement mutually acceptable to the parties.
16. TAXES
Customer shall pay all taxes related to orders placed under this Agreement
including without limitation any sales or use tax and any import duties
(and any related interest or penalty), except any income tax imposed upon
SEAGULL by any government entity.
17. BOOKS AND RECORDS'
At its cost, SEAGULL shall be entitled to inspect Customer's books and
records pertaining to the subject matter of this Agreement upon reasonable
notice to Customer and during normal business hours, during the term hereof
and for a period of 2 years after termination of this Agreement.
18. NOTICES
Notices and other communications hereunder shall be in writing or by
facsimile transmission subsequently confirmed in writing, and shall be
deemed to be given when transmitted or disposed in the United States mail,
postage pre-paid, return receipt requested, addressed to the Contracts
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