Standard Hardware Purchase And Software Lic. Agreement

STANDARD HARDWARE PURCHASE AND SOFTWARE LICENSE AGREEMENT


This Agreement is made and entered into as of the 21st day of September, 1998, by and between Monitoring Automation Systems ("MAS") and Security Associates International, Inc. ("Customer").


W I T N E S S E T H:


WHEREAS, MAS is a provider of certain computer hardware and software;


WHEREAS, Customer has requested MAS to provide Customer with certain hardware and software; and


WHEREAS, MAS is agreeable to selling and licensing such hardware and software, respectively, to Customer on the terms and conditions set forth herein.


NOW, THEREFORE, In consideration of the representations, warranties, covenants and agreements herein contained, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:


1. THE EQUIPMENT


1.1 SALE OF EQUIPMENT. MAS agrees to sell to Customer and Customer agrees to buy, on the terms and conditions set forth herein, the computer equipment listed in the System Purchase Form(s) (the "Equipment").


1.2 PRICE AND PAYMENT. The purchase price for the Equipment (excluding freight, taxes, and insurance which Customer shall pay) to be paid by Customer and payment terms for the Equipment are set forth in the System Purchase Form(s).


1.3 DELIVERY, INSTALLATION AND ACCEPTANCE.


(a) MAS shall deliver the Equipment in accordance with its delivery schedule as set forth in the System Purchase Form.


(b) Customer has elected MAS Installation Services. MAS shall install the Equipment at Customer's site, which site shall be readied by Customer in accordance with applicable specifications provided by MAS. Installation shall include successful operation of the Equipment using MAS's standard test procedures reasonably acceptable to Customer. Acceptance of the Equipment at each location hereunder shall be deemed to have occurred upon the earlier of: (i) the first live productive use of the Equipment, or (ii) thirty (30) days after installation of the Equipment at Customer's location provided that within said thirty (30) days Customer does not notify MAS, in writing, of a specific claimed defect of the Equipment to conform in all material respects to the


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published specifications thereof which are determined by MAS to be bona fide. Should Customer notify MAS within the time period set forth above of a defect which is determined by MAS to be bona fide, acceptance shall occur upon MAS remedying said defect. If a claimed defect is determined by MAS not to be bona fide, the time for acceptance of the Equipment shall not be affected and Customer shall reimburse MAS on a time and materials basis, including all expenses incurred by MAS for all services performed in connection therewith.


1.4 EQUIPMENT WARRANTY. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, MAS DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY AND ALL WARRANTIES WITH RESPECT TO THE EQUIPMENT PROVIDED HEREUNDER INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MAS WILL ASSIGN TO CUSTOMER ANY WARRANTY OFFERED BY THE MANUFACTURER OF SAID EQUIPMENT TO THE EXTENT SAID WARRANTIES MAY BE ASSIGNED.


1.5 STANDARD MANUFACTURER AGREEMENTS. To receive the Equipment Warranty and Licensed Software (defined below) Warranties as hereinafter provided, Customer must execute applicable agreements for either MAS's Equipment maintenance services or other MAS approved maintenance service for the Equipment.


1.6 CONFIDENTIALITY.


(a) MAS acknowledges that in fulfilling its obligations under this Agreement, it may have access to Customer information which is private, confidential and proprietary in nature ("Customer Confidential Information"). MAS represents and warrants that it will restrict access to Customer Confidential Information solely to its employees who require access to such information in order to fulfill MAS's obligations under this Agreement. Neither MAS, its officers, employees or agents shall disseminate or further copy, duplicate or otherwise communicate any Customer Confidential Information to any third party whatsoever without the written consent of an executive officer of Customer. MAS acknowledges that a breach of the confidentiality provisions of this Agreement may result in serious and irreparable harm to Customer for which there is no adequate remedy at law. In the event of such a breach, Customer shall be entitled to seek any temporary or permanent injunctive or other equitable relief in addition to any monetary damages hereunder. MAS acknowledges that Customer's disclosure of information regarding MAS, the Equipment or MAS's business to Customer's State or Federal regulatory agencies as required by applicable laws and regulations or as a result of judicial process shall not be deemed a violation of the confidentiality provisions of this Agreement.


(b) Customer acknowledges that in fulfilling its obligations under this Agreement, it may have access to MAS information which is private, confidential and proprietary in nature ("MAS Confidential Information"). Customer represents and warrants that it will restrict access to MAS Confidential Information solely to its employees who require access to such information in order to fulfill Customer's obligations under this Agreement. Neither Customer, its officers,


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employees or agents shall disseminate or further copy, duplicate or otherwise communicate any MAS Confidential Information to any third party whatsoever without the written consent of an executive officer of MAS. Customer acknowledges that a breach of the confidentiality provisions of this Agreement may result in serious and irreparable harm to MAS for which there is no adequate remedy at law. In the event of such a breach, MAS shall be entitled to seek any temporary or permanent injunctive or other equitable relief in addition to any monetary damages hereunder. Customer acknowledges that MAS's disclosure of information regarding Customer, the Equipment or Customer's business to MAS's State or Federal regulatory agencies as required by applicable laws and regulations or as a result of judicial process shall not be deemed a violation of the confidentiality provisions of this Agreement.


(c) Customer Confidential Information and MAS Confidential Information for purposes hereof shall include any and all software, agreements, policies, customer lists, customer data and any other information which relates to Customer's or MAS's (as appropriate) (or a third party's) data processing, research and development, trade secrets or business affairs, but does not include: (i) written information legally acquired prior to negotiations leading to this Agreement, (ii) information which is or becomes a matter of public knowledge, and (iii) information which is or becomes available from third parties who in making such disclosure breach no confidentiality obligation.


1.7 TITLE TO EQUIPMENT. MAS warrants that it shall have good title to any Equipment purchased by Customer under this Agreement, free and clear of all liens and encumbrances. Title to the Equipment shall vest in and risk of loss or damage shall pass to Customer upon delivery of the Equipment to the common carrier for shipping ("Delivery Date"). Until Customer pays in full the total price due for each piece of Equipment as specified in the System Purchase Form(s), MAS shall have a security interest in such piece of Equipment. Customer agrees to execute, promptly upon demand by MAS, any financing statement, security agreement and like documents and to take any other action reasonably requested by MAS in order to perfect MAS's security interest hereunder.


2. THE LICENSED SOFTWARE


2.1 THE LICENSE. Subject to the following terms, MAS hereby grants to Customer, and Customer hereby accepts from MAS, a perpetual, non-exclusive, and non-transferable license (the "License") to use the computer software and documentation specified in the System Purchase Form(s) (hereinafter "Licensed Software") terminable as provided herein. The Licensed Software and Equipment are together referred to as the "System."


2.2 USE OF LICENSED SOFTWARE. (a) The Licensed Software shall be used only with the Equipment and at the Customer site identified in the System Purchase Form(s). Licensed Software may be utilized for the benefit of Customer, its subsidiaries, affiliates and any direct or indirect parent or any subsidiary of such parent ("Affiliate"). The Customer may not copy the Licensed Software or permit the same to be copied, except to create three copies of the Licensed Software in machine-readable form for bona fide back-up or archival purposes and only in support of the use of


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the Licensed Software on the Equipment. Each copy shall include all copyright and trade secret notices existing on the Licensed Software displayed in the manner originally displayed on the Licensed Software. Customer shall not adapt the Licensed Software in any way or use it to create a derivative work.


(b) MAS shall supply to Client the standard MAS documentation necessary for Customer to use the System.


(c) Any updates, replacements, revisions, enhancements, additions or conversions to the Licensed Software or any associated documentation supplied to Customer by MAS shall become a part of the Licensed Software and be subject to this Agreement.


2.3 TERM. The License shall commence on the Delivery Date and will remain in effect unless terminated pursuant to this Agreement.


2.4 LICENSE FEE AND PAYMENT. The license fee and payment terms for the Licensed Software are as set forth in the System Purchase Form(s).


2.5 LICENSED SOFTWARE OWNERSHIP; NON-INFRINGEMENT. MAS represents and warrants that it is the owner of the Licensed Software or an authorized licensee thereof with full right to license such Licensed Software to Customer as provided in this Agreement, and that neither the Licensed Software or any part thereof, nor Customer's use thereof in the manner provided for herein, infringes or misappropriates any copyright, patent, trade secret, mask work or other proprietary right of any third party. Subject to the terms of this Agreement, MAS agrees to indemnify and hold Customer harmless from any damages resulting from any infringement claim. In the event any such infringing Licensed Software is embedded in another MAS product or in the operating system of a third party, and the operation of such product (hardware or software) is materially affected by the inability to use the infringing Licensed Software, Customer shall be entitled to a full refund with respect to such product. In the event a third party claims that the Licensed Software infringes its patent, copyright o ...