Software License And Services Agreement

This Software License and Services Agreement is made as of June 30, 2004 ("Effective Date") by and between PeopleSoft USA, Inc. ("PeopleSoft"), a Colorado corporation having a principal place of business at 4460 Hacienda Drive, P.O. Box 8018, Pleasanton, California 94588-8618 and ("Licensee"), a Delaware corporation having a principal place of business at 16115 Northwest 52nd Avenue; Miami, FL 33014.


1. LICENSE 1.1 PeopleSoft grants Licensee a perpetual (except as otherwise stated in
Section 6), irrevocable (except as otherwise stated in Section 6),
nonexclusive, nontransferable license to:


(a) make and run copies of the Software for Licensee's internal
data processing operations on one or more servers and/or
workstations located at facilities owned or leased by Licensee
or its Designates in the Territory;
(b) access and use the Software and provide access to Designates;
(c) modify or merge the Software with other software, and use such
modified or merged software;
(d) make and use copies of, and modify, the Documentation and use
such Documentation as modified;
(e) provide access to the Software to third parties that have a
need to access the Software in the course of providing
services to Licensee concerning Licensee's use of the Software
subject to the terms and conditions specified herein,
including, without limitation, Section 9.4


No modification or merger of the Software with other software or modification of the Documentation, however extensive, shall diminish PeopleSoft's or its licensors' right, title or interest in the Software and Documentation. 1.2 PeopleSoft shall provide Licensee with the number of copies of the Software as specified in the applicable Schedule(s), and shall provide Licensee with an equal number of copies of the Documentation.


2. LIMITATIONS ON LICENSE
2.1 Except as otherwise specified in this Agreement, Licensee
shall not:
a. Intentionally access or use any portion of the Software
delivered by PeopleSoft but not expressly licensed and paid
for by Licensee;
b. Intentionally access or use any Software, except through
enterprise integration points documented by PeopleSoft;
c. Cause or permit decompilation or reverse assembly of all or
any portion of the Software, except as expressly permitted by
applicable law;
d. Disclose or publish performance benchmark results for Software
(as delivered or subsequently modified) without PeopleSoft's
prior written consent;
e. Transfer the Software to a different software database
platform or operating system, except as may be specifically
provided for in the Schedule;
f. Export or use the Software or Documentation in violation of
U.S., Canadian, or other applicable laws or regulations,
including the U.S. Department of Commerce export
administration regulations;
g. Use or authorize the use of, the Software except as expressly
permitted herein;
h. Use Third Party Software except solely in conjunction with the
Software;
i. Delete, fail to reproduce or modify, any patent, copyright,
trademark or other proprietary rights notices which appear on
or in the Software or Documentation;
j. Directly or indirectly, sublicense, relicense, distribute,
disclose, use, rent or lease the Software or Documentation, or
any portion thereof, for third party use, third party
training, facilities management, time-sharing, use as an
application service provider, or service bureau use; or
k. Use the Software to create new applications, modules, products
or services. 2.2 PeopleSoft reserves all rights not expressly granted in this Agreement.


3. FEES AND PAYMENT TERMS 3.1 Except as otherwise specified in a Schedule and/or this Agreement, Licensee shall pay, or cause a third party to pay, PeopleSoft one hundred percent (100%) of Total Fees (as specified on the applicable Schedule) on or before that date which is thirty (30) calendar days after the receipt of PeopleSoft's invoice. Unless explicitly stated in this Schedule


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and/or the Agreement, all fees specified herein: (i) are non-cancelable, non-refundable and non-contingent; (ii) are payable in U.S. dollars; and (iii) shall be sent to the attention of PeopleSoft's Accounts Receivable Department. Payments which are not received on the due date shall bear interest at the lesser of eighteen percent (18%) per annum or the maximum rate allowed under applicable law. 3.2 Excluding taxes based on PeopleSoft's income, Licensee is liable for all taxes relating to the Software, Documentation, and/or Services whether or not PeopleSoft invoices Licensee for such taxes, duties or customs fees, unless Licensee has provided PeopleSoft with a valid tax exemption or direct pay certificate which exempts Licensee from such payments. 3.3 PeopleSoft reserves the right to withhold performance of any obligations, whether arising under this Agreement or otherwise, and/or change its credit terms, in the event of Licensee's nonpayment when due of any amounts owed to PeopleSoft and such nonpayment remains uncured for more than thirty (30) days after written notice thereof. 3.4 If Licensee's internal procedures require that a purchase order be issued as a prerequisite to payment of any amounts due to PeopleSoft, it will timely issue such purchase order and inform PeopleSoft of the number and amount thereof. Licensee agrees that the absence of a purchase order, other ordering document or administrative procedure may not be raised as a defense to avoid or impair the performance of any of Licensee's obligations hereunder, including payment of amounts owed to PeopleSoft.


4. TITLE AND PROTECTION 4.1 The Software and Documentation contain valuable intellectual property rights and proprietary information. PeopleSoft (or its licensors) retains title to the Software and Documentation, and all copyright and other rights to all portions of the Software and Documentation, and all modifications and alterations thereto, and all copies thereof. Licensee is not obligated to notify or disclose PeopleSoft of its modifications.


Except as specified herein, Licensee does not acquire any rights, express or implied, in the Software and Documentation, and has no right to commercialize or transfer any Software or Documentation, in whole or in part, or any modifications or alterations thereto. No license, right, or interest in any PeopleSoft trademark, trade name, or service mark is granted pursuant to this Agreement.


4.2 Title to the physical media for the Software and the Documentation vests in Licensee upon PeopleSoft's shipment to Licensee.


4.3 The Software was developed at private expense, is commercial, and is published and copyrighted. The Software may be transferred to the U.S. government only with the prior written consent of an officer of PeopleSoft and solely with "Restricted Rights" as that term is defined in FAR 52.227-19(c)(2) (or DFAR 252.227-202.32 (c)(1) if the transfer is to a defense-related agency) or subsequent citation. If Licensee is an agency of the United States government or licensing the Software for operation on behalf of the United States government, the Software is licensed to Licensee with rights no greater than those set forth in Federal Acquisition Regulation 52.227-19(c)(2) [or DFAR 252.227-7202.32 (c)(1) if the Licensee is a defense-related agency] or subsequent citation.


5. INDEMNITIES 5.1 PeopleSoft will defend and indemnify (including the associated legal expenses) Licensee, its Affiliates and their respective officers, directors, employees, agents, successors and assigns against any claims by third parties for damages incurred by such third parties alleging that the Software infringes the third party's intellectual property rights ("Indemnified Claim"). Licensee will give PeopleSoft prompt written notice of such claim, and information, reasonable assistance, and the sole authority to defend or settle such claim.


In addition to the obligations stated above, in the event that PeopleSoft becomes aware of an actual or potential Indemnified Claim, PeopleSoft shall, in its reasonable judgment and in a commercially reasonable timeframe, and at its option and expense either: (i) obtain for Licensee the right to continue using the allegedly infringing Software; or (ii) replace or modify the allegedly infringing Software so that it becomes noninfringing while providing substantially similar functionality.


PeopleSoft will have no obligation to defend or indemnify Licensee in the event that Licensee agrees to settle any infringement claim without the prior written consent of the General Counsel for PeopleSoft, Inc. (which shall not be unreasonably withheld) or for any liability arising out of or relating to any allegations or claims of infringement, to the extent the alleged infringement is based on: (a) a modification of the Software by anyone other than PeopleSoft or its


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agents that is not an Update; (b) use of the Software other than in accordance with the Documentation or the terms of this Agreement; (c) use of a release of the Software no longer supported by PeopleSoft because PeopleSoft has replaced or modified the Software so as to make it non-infringing; provided Licensee was notified by PeopleSoft of the potential infringement and the availability of such replacement or modification, and given a reasonable opportunity to implement the replacement or modification prior to the use which serves as the basis for the claim of infringement; (d) use of a release of the Software without having implemented all Updates provided by PeopleSoft, the use of which would have cured the alleged infringement; (e) exclusively on any Third Party Software, unless otherwise specified in a Schedule; (f) use of the Software in combination with any other hardware, software (other than Third Party Software) or material where, absent such combination, the Software would not be infringing, or (g) Software or Services for which PeopleSoft has not been paid in accordance with the terms of this Agreement. This Section states PeopleSoft's entire liability for actual or alleged infringements and Licensee's sole and exclusive remedy in relation thereto.


5.2 Licensee will defend and indemnify PeopleSoft against any claims by third parties for damages incurred by such third parties, alleging that any data or materials produced and/or distributed and/or received in any media resulting from use of the Software: (i) are factually inaccurate, misleading or deceptive; (ii) infringe or misappropriate any intellectual property rights any third party; (iii) are libelous, defamatory, obscene or pornographic, (iv) comprise unsolicited commercial e-mail or spam, or (v) violate civil or criminal laws or regulations, including those regulating the use and distribution of content on the Internet and protection of personal privacy, provided that such claims are not solely attributable to a nonconformity of the Software to perform substantially in accordance with the Documentation or to the Software violating any civil or criminal laws or regulations. PeopleSoft will give Licensee prompt written notice of such claim and information, reasonable assistance, and the sole authority to defend or settle such claim. 5.3 EXCEPT FOR LICENSEE'S INFRINGEMENT OF PEOPLESOFT'S INTELLECTUAL PROPERTY RIGHTS, THE FOREGOING PROVISIONS OF THIS SECTION ENTITLED "INDEMNITIES" STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF THE PARTIES, AND THE EXCLUSIVE REMEDY OF THE INDEMNIFIED PARTY, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS.


6. TERM AND TERMINATION 6.1 This Agreement will remain in effect perpetually unless and until terminated pursuant to this Section entitled "Term and Termination". 6.2 Either party may terminate this Agreement in the event of the other party's failure to materially comply with any term of this Agreement and such noncompliance remains uncured for more than thirty (30) days after written notice thereof. 6.3 Upon termination, Licensee shall immediately cease using and destroy or return to PeopleSoft all copies of PeopleSoft's Confidential Information, including, without limitation, Software and Documentation in any form, including partial copies and modified versions, and shall certify in writing to PeopleSoft that all such copies have been destroyed or returned. 6.4 Except as expressly provided otherwise in this Agreement, (i) all remedies available to either party are cumulative and not exclusive; and (ii) termination of this Agreement or any license shall not limit either party from pursuing other remedies available to it, including injunctive relief. Upon termination, all amounts owed under this Agreement and all Schedules shall immediately become due and payable.


7. LIMITED WARRANTY 7.1 PeopleSoft warrants that the Software, as delivered to Licensee, for a period of eighteen (18) months from the applicable Schedule Effective Date will perform substantially in accordance with the Documentation, provided that: (a) Licensee remains a compliant, continuous subscriber to Support Services and has installed all maintenance Updates provided by PeopleSoft, which would have cured the alleged nonconformity to perform in accordance with the Documentation; (b) Licensee is using the Software in accordance with the Documentation; (c) any error or defect detected is reproducible by PeopleSoft; (d) the performance issue, error or defect does not relate exclusively to Third Party Software; and (e) Licensee notifies PeopleSoft of such nonconformance within the warranty period or within thirty days following expiration of the warranty period.


PeopleSoft warrants that it has title to, or the authority to grant a license to, the Software, excluding Third Party Software, to Licensee in accordance with the terms of this Agreement. As to Third Party Software, PeopleSoft warrants that it is licensed by the third party that has licensed the Third Party Software to PeopleSoft, to sublicense such Third Party


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Software to Licensee pursuant to the terms of this Agreement. Licensee's sole and exclusive remedy for any breach of the foregoing warranties shall be the remedy set forth in Section 7. of this Agreement.


PEOPLESOFT DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR THAT THE SOFTWARE WILL RUN UNINTERRUPTED, OR THAT ALL SOFTWARE ERRORS CAN OR WILL BE CORRECTED.


PeopleSoft warrants that the execution, delivery and performance of this Agreement has been duly and validly authorized by all necessary corporate action of the part of PeopleSoft (none of which actions have been modified or rescinded, and all of which actions are in full force and effect), and that this Agreement constitutes a valid and binding obligation of PeopleSoft enforceable in accordance with its terms.


Licensee warrants that the execution, delivery and performance of this Agreement has been duly and validly authorized by all necessary corporate action of the part of Licensee (none of which actions have been modified or rescinded, and all of which actions are in full force and effect), and that this Agreement constitutes a valid and binding obligation of Licensee enforceable in accordance with its terms.


7.2 PeopleSoft warrants that the Services will be performed consistent with generally accepted industry standards, provided that Licensee notifies PeopleSoft within one (1) month of performance of the Services that Licensee believes such Services were not performed consistent with generally accepted industry standards. PeopleSoft warrants that the Support Services will be performed in accordance with PeopleSoft's Support Services Terms and Conditions as specified in the Exhibit attached hereto. No specific result from the provision of such Services is assured or guaranteed. 7.3 For any breach of the warranties contained in this Agreement, PeopleSoft shall, in addition to any and all other remedies available at law or in equity: 7.3.1 For Services, at PeopleSoft's sole option, (i) the reperformance of the Services which were not as warranted at no additional charge by PeopleSoft to Licensee, or (ii) refund of the fees paid to PeopleSoft for the Services which were not as warranted. 7.3.2 For Software which does not conform to the warranties contained in this Agreement, PeopleSoft will, at its sole option, and provided Licensee otherwise complies with the terms of this Agreement: repair or replace the nonconforming Software within a commercially reasonable period of time after receiving notice from Licensee of such nonconformance. 7.4 Licensee accepts sole responsibility for (i) Licensee's system configuration, design and requirements, (ii) the selection of the Software to achieve Licensee's intended results, and (iii) modifications, changes or alterations to the Software by anyone other than PeopleSoft or its agents that is not an Update. Licensee acknowledges that it has had an opportunity to review the Documentation, it understands the functionality of the Software and its ability to work with Licensee's systems and to support Licensee's business, and that it has made its own evaluation in deciding to license the Software. 7.5 PeopleSoft will pass through to Licensee, to the fullest extent possible, the warranties from PeopleSoft's licensors as they relate to Third Party Software. 7.6 EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY SCHEDULE HERETO), NEITHER PARTY MAKES ANY WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT, THE SOFTWARE, DOCUMENTATION, OR ANY SERVICES PROVIDED HEREUNDER INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND EACH PARTY EXPRESSLY DISCLAIMS ANY SUCH WARRANTIES AND CONDITIONS.


8. LIMITATION OF LIABILITY EXCEPT FOR CLAIMS: (I) ALLEGEDLY ARISING OUT OF INFRINGEMENT, OR MISUSE OF EITHER PARTY'S INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OR THEIR USE IN A MANNER WHICH IS INCONSISTENT WITH THE TERMS OF THIS AGREEMENT; (II) ALLEGEDLY ARISING OUT OF EITHER PARTY'S VIOLATION OF UNITED STATES OR OTHER LAWS APPLICABLE TO THE SOFTWARE OR DOCUMENTATION, INCLUDING U.S. DEPARTMENT OF COMMERCE EXPORT ADMINISTRATION REGULATIONS; AND (III) BY THIRD PARTIES RECOVERABLE BY LICENSEE UNDER THE SECTION ENTITLED, "INTELLECTUAL PROPERTY INDEMNITY";, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES RESULTING FROM LOST DATA OR LOST PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.


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EXCEPT FOR CLAIMS: (I) ALLEGEDLY ARISING OUT OF INFRINGEMENT, OR MISUSE OF EITHER PARTY'S INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OR THEIR USE IN A MANNER WHICH IS INCONSISTENT WITH THE TERMS OF THIS AGREEMENT; (II) ALLEGEDLY ARISING OUT OF EITHER PARTY'S VIOLATION OF UNITED STATES OR OTHER LAWS APPLICABLE TO THE SOFTWARE OR DOCUMENTATION, INCLUDING U.S. DEPARTMENT OF COMMERCE EXPORT ADMINISTRATION REGULATIONS; (III) BY THIRD PARTIES RECOVERABLE BY LICENSEE UNDER THE SECTION ENTITLED, "INTELLECTUAL PROPERTY INDEMNITY"; AND (IV) NONPAYMENT OF AMOUNTS OWED TO EITHER PARTY, NEITHER PARTY'S LIABILITY FOR DAMAGES ARISING OUT OF, RELATING TO OR IN ANY WAY CONNECTED WITH THE RELATIONSHIP OF THE PARTIES, THIS AGREEMENT, ITS NEGOTIATION OR TERMINATION, OR THE PROVISION OR NON-PROVISION OF SOFTWARE, DOCUMENTATION OR SERVICES (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL EXCEED TWO (2) TIMES THE AGGREGATE AMOUNT PAID BY LICENSEE TO PEOPLESOFT UNDER THE APPLICABLE SCHEDULE FROM WHICH THE CLAIM AROSE. THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY SET FORTH IN THIS SECTION ENTITLED "LIMITATION OF LIABILITY". LICENSEE ACKNOWLEDGES THAT WITHOUT ITS AGREEMENT TO THE LIMITATIONS CONTAINED HEREIN, THE FEES CHARGED FOR THE SOFTWARE AND SERVICES WOULD BE HIGHER.


9. NONDISCLOSURE OBLIGATIONS 9.1 Definitions. (a) PeopleSoft's Confidential Information includes, without limitation, the Software, object and source code for the Software, and any associated documentation; information concerning PeopleSoft's plans for products or functionality, or service offerings; business polices or practices; information identified as proprietary or confidential to PeopleSoft; any agreements and the terms, conditions, and pricing contained in the agreement(s); information received from others that PeopleSoft has agreed to keep confidential or to not disclose; PeopleSoft's research activities and plans, marketing and sales plans, strategic plans, forecasts, training materials, pricing and pricing strategies, methods of operation, internal controls, security procedures, licensee lists; unpublished financial information; and information presented to Licensee in focus groups, guide groups, or other advisory groups sponsored by PeopleSoft or its customers.


(b) Licensee's Confidential Information means any and all information disclosed by Licensee to PeopleSoft which is identified as confidential or proprietary, including information concerning Licensee's plans for products or service offerings; business polices or practices; information identified as proprietary or confidential to Licensee; Licensee's research activities and plans, marketing and sales plans, strategic plans, forecasts, methods of operation, internal controls, security procedures, Licensee customer lists; and unpublished financial information;


(c) Discloser is the party that is disclosing Confidential Information.


(d) Recipient is the party that is receiving Confidential Information.


9.2 During the course of the parties' relationship, they may have access to Confidential Information of the other. Recipient will not disclose Discloser's Confidential Information, orally or in writing, to any third party without the prior written consent of Discloser, except as provided below. The parties will protect each other's Confidential Information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which the Recipient utilizes for its own information that it does not wish disclosed to others. Recipient shall use Discloser's Confidential Information only to the extent necessary to exercise its rights or perform its obligations hereunder. 9.3 The Agreement imposes no obligation on Recipient with respect to Discloser's Confidential Information that Recipient can establish by legally sufficient evidence: (a) was, prior to receipt from Discloser, in the possession of, or rightfully known by Recipient, without an obligation to Discloser to maintain its confidentiality; (b) is or becomes generally known to the public or comes into the public domain without violation of the Agreement or without a violation of an obligation of confidentiality owed to the Discloser; or (c) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality to Discloser. For purposes of this Section, a disclosure of Confidential Information will not render the Confidential Information "generally known to the public" when the (i) disclosure is enjoined by Discloser, (ii) disclosure is the subject of a written settlement agreement between Discloser and a third party resolving a dispute between Discloser and such third party as to the alleged wrongful disclosure of the Confidential Information, provided that such information remains confidential pursuant to the terms of the settlement, or (iii) disclosing party is held liable to Discloser for damages in an action alleging wrongful disclosure or misappropriation of the Confidential Information. 9.4 Recipient may provide access to and use of the Discloser's Confidential Information only to those third parties that have a need to use and access the Confidential Information in the course of providing services to Recipient concerning


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Licensee's use of the Software and have agreed to non-disclosure obligations substantially similar to those contained herein. Disclosure of Discloser's Confidential Information by any such third party will be deemed a breach by Recipient hereunder. To the extent Recipient may be required to disclose Confidential Information in a legal proceeding, Recipient may make such disclosure provided that Recipient notifies Discloser of such requirement prior to disclosure and makes diligent efforts to avoid and/or limit disclosure, and cooperates with Discloser in seeking a protective order. 9.5 The Recipient will not obtain, by virtue of the Agreement, any right, title, or interest in any Confidential Information of the Discloser, except as expressly provided herein. Immediately on termination of the Agreement, each party will certify in writing to the other that all copies of Confidential Information in any form, including partial copies, have been destroyed or returned to the Discloser, unless explicitly permitted in writing otherwise by the Discloser. 9.6. ALL CONFIDENTIAL INFORMATION PROVIDED TO THE RECIPIENT IS "AS-IS" AND WITHOUT WARRANTY OR CONDITION OF ANY KIND, UNLESS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT.


10. NOTICE All notices required by this Agreement shall be in writing and sent by regular mail, certified mail, overnight courier, personal delivery, or facsimile (if confirmed by regular mail, certified mail, overnight courier, or personal delivery) to the addresses indicated on the first page of this Agreement, or such other address as either party may indicate by at least ten (10) days prior written notice to the other party. Notices to PeopleSoft shall be sent to the attention of PeopleSoft's General Counsel. Notice will be effective on the date shown on the delivery receipt or facsimile confirmation or, if sent by regular mail or where there is no written evidence of delivery, on actual receipt or refusal of receipt.


11. ASSIGNMENT Licensee may not assign or transfer this Agreement (by operation of law, as a result of a change of control, or otherwise), grant a security interest in the Software, or sublicense the Software without the prior written consent of PeopleSoft (such consent not to be unreasonably withheld or delayed), and any such assignment, grant or sublicense without such consent shall be null and void. Notwithstanding the foregoing, in the event of a merger, consolidation or acquisition of all or substantially all of the assets or stock of Licensee, Licensee may assign its rights under this Agreement to the resulting entity upon written notice to PeopleSoft, provided that such entity: (a) is not a PeopleSoft competitor; (b) is not an entity that has failed to, or is unable or unwilling to, protect the confidentiality of the Software or PeopleSoft's intellectual property and proprietary rights; (c) possesses sufficient resources (financial or otherwise) to perform Licensee's obligations under this Agreement; (d) is not a Licensee of PeopleSoft Software; and (e) signs an amendment with PeopleSoft assuming all of the obligations of Licensee under this Agreement. In addition, Licensee understands and agrees that a condition of assignment shall be the payment of additional license fees in accordance with PeopleSoft's pricing in effect at the time of the assignment, including any fees owed to expand the scope of use for this Agreement and the applicable Schedule(s) beyond the scope of use of the original licensing entity.


12. SURVIVABILITY The terms of Sections herein entitled "Title and Protection", "Term and Termination", "Limited Warranty", "Limitation of Liability", "Nondisclosure Obligations", "Indemnities" (with respect to claims arising from use of the Software during the term of the Agreement) "Notice", "Survivability", "General", and "Definitions" shall survive termination of this Agreement.


13. GENERAL The Agreement is made in and will be governed by the ...