1.1. This is an Agreement, effective as of the ____ day of ______ month in
__________ year ("Effective Date") between American Coders, Ltd. ("Vendor") of Raleigh, NC
and its customer ________________ ("Customer") at location
_______________________________________________ in the City of ______________________
in the State/Provice of ______________________ in the Country of ____________________
("Authorized Location") under which Vendor is licensing type ______________________
as stated in section 2.17
software on a non-exclusive
basis for the customer's own use under the terms and conditions stated
As used in this Agreement, the following definitions shall apply:
2.1. "Agreement" shall mean this Agreement between Vendor and Customer.
2.2. "Confidential Information" shall mean any information relating to or disclosed in the course of the Agreement, which is or should be reasonably understood to be confidential or proprietary to the disclosing party. "Confidential Information" shall not include information (a) already lawfully known to the receiving party, (b) disclosed in published materials, (c) generally known to the public or (d) lawfully obtained from any third party not under any obligation of confidentiality to this discloser.
2.3. "Customer" shall mean the party so designated on the first page of this agreement.
2.4. "Derivative Work" shall mean any work sufficiently based upon the Program such that copying it without permission would infringe on the copyright of the Program.
2.5. "Delivery Date" shall mean the date that Vendor ships the Program to Customer.
2.6. "Documentation" shall mean the user manual(s) and any other materials supplied by Vendor for use with the Program or with any Release.
2.7. "Effective Date" shall mean the date set forth above.
2.8. "License Fee" shall mean the fee for licensing the Program or Programs specified in the Program Description and Price Schedule attached as Schedule A to the Agreement.
2.9. "Program" shall mean the source code of Open Business Objects For EDI - OBOE Basic Edition together with its Documentation, as further described in Schedule A.
2.10. The term "Release" shall mean any version of a Program or any materials which are supplied by Vendor at or after the delivery of a Program, including any software provided for the purpose of improving the functions or performance of the Program, changing the intellectual property contained in the Program, expanding the capability or ease of operation of the Program, or for the purpose of fixing errors in program logic, together with Documentation.
2.11. The term "Software Support" shall mean support and maintenance services for Programs provided for in the separate Software Support License.
2.12. The term "Software Support Fee" shall mean that applicable annual fee due for Software Support in accordance with Vendor's Software Support Schedule in the separate Software Support License.
2.13. The term "Software Support Schedule" shall mean Vendor's written statement of Software Support offered and the fees due for such Software Support as it may be in effect from time to time. Vendor reserves the right to change the Software Support Schedule without notice.
2.14. "Vendor" shall mean American Coders, Ltd Post Office Box 97462 Raleigh NC 27624
2.15. The term "Authorized location" shall mean the authorized location set forth above.
2.16. The term "Authorized Users" shall mean the employees of the Customer.
2.17. The term "License Type" that for each machine on which Derivative Work is installed, a valid run-time license must exist. Fees according to License Type are specified in Schedule B
2.17.1 The term "Single License" allows installation and execution of Derivative Work on a single machine per license.
2.17.2 The term "Site License" allows installation and execution of Derivative Work on multiple machines within a single physical location (i.e. an office or data center location at a single physical address)
2.17.3 The term "Enterprise License" allows installation and execution
of Derivative Work on multiple machines in multiple locations throughout
the licensed company's facilities.
3. GRANT OF LICENSE
3.1. Vendor hereby grants to Customer, and Customer hereby accepts, a non-exclusive license to use the Program subject to the terms and provisions of this Agreement.
3.2. The license granted by this Agreement authorizes use of the Program only at the Authorized Location by Authorized Users, except as provided for in 3.5 below.
3.3. Customer shall maintain adequate records of usage and copying of the Program by Authorized Users to assure compliance with the limitations of this license. Such records shall be available to Vendor for inspection upon reasonable request.
3.4. The Program is licensed for use on five workstation at the location as specified as the Authorized Location defined in section 1.1, Authorized Users of the Program at each such workstation may install a copy of the Program on a single home and/or a single portable computer without the Customer paying an additional license fee, if (a) such use constitutes no more than twenty (20) percent of such Authorized User's usage of the Program and (b) the Authorized User has only one copy of the Program in use at any time. Customer shall take all necessary steps to assure compliance with the limitations of this provision.
3.5. Customer shall have no rights to distribute the Program to any third parties provided, however, that Vendor grants the non-exclusive rights for the Customer to distribute binary code developed and compiled from the Program as part of a Customer product as follows:-
3.5.1 Vendor hereby authorizes the customer to reproduce or distribute Derivative Works in machine readable binary code format ("REDISTRIBUTABLES") as per the License Type for an additional fee of $150.00 USD per copy distributed..
3.5.2 The REDISTRUBUTABLES may only be distributed in binary code form outside the Authorized Location.
3.5.3 Customer shall not use Vendor's name, trademarks, logo or copyrighted materials to market Customer products. except as expressly provided for in Paragraph 3.5.4 below.
3.5.4 Customer shall include a copyright notice and any other legends specified by Vendor as part of Customer product.
3.5.5 Customer shall indemnify, hold harmless and defend Vendor from and against any claims, loss, damage, cost, or expense, including attorney's fees and any resulting costs, that arise or result from the distribution of Customer products containing derivative work.
3.5.6 Customer will not permit further distribution of the Program unless express written permission is obtained from Vendor.
3.5.7 Any products developed by Customer will contain terms and conditions reasonably calculated to protect the parties' proprietary rights in the Software and acceptable to Vendor. These conditions will be at least as protective of Vendor as those included in the binary code license used by Vendor
3.5.8 Customer will not redistribute the program in
in a product that is
competitive with Vendor's current products in their present or future
4. SCOPE OF THE AGREEMENT
4.1. This Agreement shall apply to each Program or Release of a Program
that Customer is currently licensing from Vendor or shall license in the
5. RESTRICTION AGAINST THIRD PARTY USE
5.1. The Program may not be used by any person or entity that is not an Authorized User without written permission from American Coders, Ltd.
5.2 For distributed copies of the program as specified in section 3.5.1
Customer will notify Vendor of the number of copies being distributed and the names
and locations of where the distributed copy will be used.
6. COPIES OF THE PROGRAM
6.1. Vendor shall furnish to Customer one copy of the Program.
6.2. Customer shall have the right to make one copy of the Source code for the Program solely for archive purposes. On such archival copy, Customer shall mark copyright, trademark, patent, and/or trade secret notices identical to those on the copy of the Program provided to Customer.
6.3. Vendor shall furnish to Customer one electronic copy of the Documentation. Upon request, at Vendor's option, additional copies of the Documentation may be supplied to Customer at Vendor's then current price. Customer may not, without the prior written consent of Vendor, copy or otherwise reproduce any Documentation.
6.4. Customer shall be entitled to make additional copies
of the Program and Documentation to the extent necessary for authorized use of the
Program by Authorized Users at the Authorized Location. Customer shall
reproduce and include copyright or trade secret notices and any other legends
included in the Program, on any and all copies in the same form as included
in the copies provided to Customer.
7.1. Installation of the Program shall be Customer's responsibility.
Customer shall follow the installation procedures contained in the Documentation.
8.1. The Program will be deemed accepted when the Program has been installed
and performs substantially as described in the Documentation.
9. PAYMENT OF PROGRAM LICENSE FEE
9.1. In consideration of the license granted under this Agreement, full
payment as specified in the License Type specifications
is due to the Vendor from the Customer upon execution
of this agreement.
10. ACKNOWLEDGMENT OF VENDOR'S OWNERSHIP RIGHTS
10.1. Customer acknowledges that it obtains no ownership rights in the
Program under the terms of this Agreement. All rights in the Program including
but not limited to Confidential Information, trade secrets, trademarks,
service marks, patents, and copyrights are, shall be and will remain the
property of Vendor. All copies of the Program delivered to Customer, or
made by Customer remain the property of Vendor.
11. CONFIDENTIAL INFORMATION
11.1. Customer acknowledges that the Program and the Documentation contain proprietary and Confidential Information of Vendor. Customer agrees to keep the Program and Documentation in confidence and to take all reasonable precautions to ensure that no unauthorized persons have access to the Program and Documentation and that no unauthorized copies are made. Breach of this provision shall be grounds for immediate termination of this Agreement without further obligation to Customer, at Vendor's option.
11.2. Customer may not alter any proprietary markings on the Program,
including copyright, trademark, trade secret, and patent legends.
12. CUSTOMER'S OBLIGATION FOR DATA PROTECTION
12.1. Vendor understands that Customer may perform daily backups of
the data on the computer system used by the Program so that the likelihood
of data loss is minimized. Customer shall be solely responsible for backup
software and hardware. Customer shall provide the safe storage of all backup
tapes and/or disks in order to ensure compliance with the terms of this
Agreement. Customer shall be responsible for keeping its computer system
free of computer viruses.
13.1. The Program is delivered "as is" without any warranties of any kind. Specifically, Vendor does not warrant that the Program will be error free or that the Program will run without interruption
13.2. VENDOR DISCLAIMS ALL OTHER WARRANTIES, EITHER STATUTORY, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT, WITH RESPECT TO THE PROGRAM AND THE ACCOMPANYING WRITTEN MATERIALS.
13.3. VENDOR WILL NOT BE LIABLE FOR LOST PROFITS, LOSS OF DATA, LOST OPPORTUNITIES, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES UNDER ANY CIRCUMSTANCES.
13.4. The Program is not fault tolerant and is not designed, manufactured
or intended for use in on-line control equipment in hazardous environments
requiring fail-safe performance in which failure of Program or REDISTRIBUTABLES
or Derived Works could lead directly to death, personal injury or severe
physical or environmental damage ("High Risk Activities"). Customer will
not use Program to distribute or resell REDISTRIBUTABLES or Derived Works
for High Risk Activities.
14. OVERALL LIMITATION OF DAMAGES
14.1. IN NO CASE SHALL THE AGGREGATE AMOUNT OF DAMAGES PAYABLE TO CUSTOMER
FROM ANY AND ALL PARTIES FOR ANY CLAIM ARISING FROM THE PROGRAM OR THIS
AGREEMENT (INCLUDING, WITHOUT LIMITATION VENDOR'S INDEMNIFICATION
OBLIGATIONS CONTAINED HEREIN)
EXCEED THE AMOUNTS PAID BY CUSTOMER TO VENDOR UNDER THIS AGREEMENT.
15.1. Vendor agrees to indemnify and hold Customer harmless against any loss, damage, expense, or cost, including reasonable attorneys' fees, arising out of any claim, demand, or suit asserting that the Program infringes or violates any copyright, patent, trade secret, trademark, or proprietary right existing under the laws of the United States or any state or territory thereof ("Claim"), subject to the overall limitation of damages hereunder.
15.2. The indemnification obligation in this section shall be effective only if (1) at the time of the alleged infringement, Customer was using a currently supported version of the Program listed in Vendor's then current Supported Products List, (2) Customer gave prompt notice of the Claim and permitted Vendor to defend, and (3) Customer has reasonably cooperated in the defense of the claim. Vendor shall have no obligation to Customer to defend or satisfy any claims made against Customer that arise from the use, sale, licensing or other disposition of the Program by Customer other than as permitted by this Agreement or from the Customer's modification of the Program.
15.3. To reduce or mitigate damages, Vendor may at its own expense procure
the right for Customer to continue licensing and distributing the Program
or replace it with a non infringing product. If Vendor supplies a non infringing
Release of the Program, Customer shall promptly install it on its computer
system, and terminate use of prior Releases of the Program. If Customer
is not entitled to such non infringing Release under the terms of the Vendor's
Software Support arrangement with Customer, Customer shall pay any applicable
fee for upgrading to the non infringing Release, as stated in Vendor's
then current fee schedule, within thirty (30) days of delivery of such
Release. If, in its judgment, Vendor deems that, due to the Claim or for
any other reason, it is not in Vendor's practical interest to continue
distributing a Program, Vendor may require customer, upon thirty (30) days
written notice, to terminate use of a Program. Thirty days after notice
to terminate use of a Program, this Agreement shall terminate as to the
Program involved, Customer shall receive a refund of a percentage of the
current year's Software Support Fee for the Program corresponding to the
remaining portion of the year, and in addition, if such termination takes
place during the first year after the Delivery Date, a refund of a percentage
of the License Fee for such Program corresponding to the remaining portion
of the first year. THE FOREGOING IS CUSTOMER'S EXCLUSIVE REMEDY AGAINST
ANY AND ALL PARTIES FOR ANY CLAIM ARISING FROM OR RELATING TO LOSS OF USE
OF THE PROGRAM OR TO ANY OTHER DAMAGE ARISING AS A RESULT OF THIS PROVISION.
16. RESTRICTIONS ON TRANSFER TO A NEW LOCATION
16.1. Customer may not transfer the storage or operation of a Program to a location other than the Authorized Location except that Customer may move Program to a new site within 20 miles of Authorized Location. Customer will notify Vendor in writing within five (5) days of such a move.
16.2. If the storage and operation of a Program is moved to a location other than a Permitted New Authorized Location, Vendor may suspend Software Support. However, Vendor shall not be required to refund any Software Support Fee.
16.3. If Customer is temporarily unable to use a Program at the Authorized Location because of conditions beyond Customer's control, Customer may use the Program at another location on a temporary basis. Such use, if not otherwise authorized by this Agreement, shall be permitted only as long as is necessary in response to such conditions. Customer shall provide Vendor notice within five (5) days if this provision is invoked, and shall also give notice within five (5) days when the Program is returned to the Authorized Location.
16.4. In case of any move of the Program permitted under this Agreement,
shipment of the Program to the new site shall be at Customer's sole expense,
risk, and control, and Customer shall be solely responsible for the protection
of the Program during transport and while at the new site.
17. TERM AND TERMINATION
17.1. The term of this Agreement shall commence upon the Effective Date and shall continue in effect until terminated as provided for herein.
17.2. It is agreed that either party may terminate this Agreement immediately upon written notice to the other party in the event that such other party (a) becomes insolvent or makes an assignment for the benefit of creditors; (b) files or has filed against it any petition under any Title of the United States Code or under any applicable bankruptcy, insolvency, reorganization or similar debtor relief law which is not discharged within thirty (30) days of said filing, or (c) requests or suffers the appointment of a trustee or receiver, or the entry of an attachment or execution as to a substantial part of its business or assets.
17.3. Vendor may terminate this Agreement, and the license provided
for herein, in the event Customer (a) fails to make when due any License
Fee payment or other terms required under this Agreement; (b) commits a
material breach of any of its obligations concerning scope of use or the
protection of the Program, Documentation, intellectual property of Vendor,
and Confidential Information; or (c) materially breaches any of its other
obligations under any provision of this Agreement, which breach is not
remedied within thirty (30) days after notice thereof by Vendor to Customer.
18. RIGHTS UPON TERMINATION
18.1. Upon termination of this Agreement, Customer's license to use the Program shall terminate, and Customer shall immediately turn over to Vendor all copies of the Program and Documentation, and any other Confidential Information relating to the Program and Documentation and shall remove and erase completely any copies of the Program installed or recorded on any hard disk or other storage medium. Customer is not required, however, to recall any previously shipped Derivative Works or products containing REDISTRIBUTABLES described in section 3.5. Customer shall promptly certify to Vendor in writing that it has complied with this requirement.
18.2. Upon termination of this Agreement, Customer shall pay to Vendor all fees due through the effective date of such termination. Unless otherwise specified herein or otherwise agreed in writing, all fees collected or accrued prior to the date of termination shall be retained by Vendor without any pro rata refund to Customer.
18.3. The termination of this Agreement shall not extinguish any rights
or obligations of the parties relating to protection of Confidential Information.
19.1. Customer may not sell, pledge, assign, sublicense, or otherwise
transfer or share its rights or delegate its obligations under this Agreement
without the prior written consent of Vendor, which Vendor may withhold
in its sole discretion. Any attempted sale, pledge, assignment, sublicense
or other transfer in violation hereof shall be void and of no force or
effect. Vendor may assign its rights and delegate its duties hereunder
at any time without the consent of Customer.
20. GENERAL PROVISIONS
20.1. Applicable Law. This Agreement shall be construed pursuant to substantive law of the State of North Carolina .
20.2. Shipping Costs and Risk of Loss. All costs relating to the shipment of the Program and the Documentation, including freight and insurance costs, shall be borne by Customer. Upon delivery of the Program and the Documentation, Customer shall assume all risk of loss and damage to the Program and the Documentation, and shall at its sole cost and expense replace any lost or damaged portion thereof.
20.3. Taxes. Customer shall pay, in addition to the other amounts payable under this Agreement, all local, state and federal excise, sales, use, personal property, gross receipts and similar taxes (excluding taxes imposed on or measured by Vendor's net income) levied or imposed by reason of the transactions under this Agreement. Customer shall, upon demand, pay to Vendor an amount equal to any such tax actually paid or required to be collected or paid by Vendor.
20.4. Required Consents. Customer warrants that it has obtained lawful permission to use all hardware and software required in order for the Program to be used on Customer's computer system.
20.5. Public Reference. Customer consents to the public use of its name as a customer of Vendor.
20.6. Modification. This Agreement may not be modified or amended except by writing which is signed by authorized representatives of each of the parties.
20.7. Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies or any other cause beyond the control of such party ("Force Majeure") provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof and uses its best efforts to cure the delay. In the event of such Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure but not in excess of three (3) months.
20.8. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter hereof and supersedes any prior oral or written promises or agreements except for the Escrow Agreement described in section 21. There are no promises, covenants or undertakings other than those expressly set forth in this Agreement.
20.9. Equitable Remedies. The parties recognize that money damages is not an adequate remedy for any breach or threatened breach of any obligation hereunder by Customer involving intellectual property, Confidential Information or use of the Program beyond the scope of the license granted by this Agreement. The parties therefore agree that in addition to any other remedies available hereunder, by law or otherwise, Vendor shall be entitled to an injunction against any such continued breach by Customer of such obligations.
20.10. Attorney's fees. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and other costs incurred in that action or proceedings in addition to any other relief to which they may be entitled without the necessity of showing irreparable injury or damage and without the necessity of posting a bond.
20.11. EXPORT. Customer shall not export, re-export or transfer, whether directly or indirectly, the Program or Derived Works or REDISTRIBUTABLES, to any person or company who is a legal resident or is controlled by a legal resident of any proscribed country listed in the U.S. Export Administration Regulations (or any equivalent thereof) unless properly authorized by the U.S. Government.
So agreed between the parties signing below.
For American Coders, Ltd.
Schedule A - Source code file names
Source code file name for American Coders LTD's Open Business Objects For EDI - OBOE Basic Edition
com.americancoders.edi.BinaryDE.java com.americancoders.edi.BinaryTokenizer.java com.americancoders.edi.CharDE.java com.americancoders.edi.CompositeDE.java com.americancoders.edi.DataElement.java com.americancoders.edi.DataTokenizer.java com.americancoders.edi.DateDE.java com.americancoders.edi.DocumentErrors.java com.americancoders.edi.EDIDocumentHandler.java com.americancoders.edi.EDIDocumentParser.java com.americancoders.edi.EDIFact.EDIFactDocumentParser.java com.americancoders.edi.EDIFact.EDIFactDocumentHandler.java com.americancoders.edi.EDIFact.EDIFactEnvelope.java com.americancoders.edi.EDIFact.EDIFactFunctionalGroup.java com.americancoders.edi.EDIFact.Message_Header.java com.americancoders.edi.EDIXMLParser.java com.americancoders.edi.Envelope.java com.americancoders.edi.EnvelopeFactory.java com.americancoders.edi.FixedLengthParser.java com.americancoders.edi.FunctionalGroup.java com.americancoders.edi.ICompositeDEContainer.java com.americancoders.edi.IContainedObject.java com.americancoders.edi.IDDE.java com.americancoders.edi.IDList.java com.americancoders.edi.IDListParser.java com.americancoders.edi.IDListProcessor.java com.americancoders.edi.IDataElementContainer.java com.americancoders.edi.IDataTokenizer.java com.americancoders.edi.IIdentifier.java com.americancoders.edi.ISegmentContainer.java com.americancoders.edi.ITemplateLoopContainer.java com.americancoders.edi.ITemplateSegmentContainer.java com.americancoders.edi.ITokenizer.java com.americancoders.edi.Loop.java com.americancoders.edi.LoopAndSegmentContainer.java com.americancoders.edi.NumericDE.java com.americancoders.edi.OBOEException.java com.americancoders.edi.ReaderTokenizer.java com.americancoders.edi.RealDE.java com.americancoders.edi.Segment.java com.americancoders.edi.SegmentContainer.java com.americancoders.edi.Table.java com.americancoders.edi.TemplateComposite.java com.americancoders.edi.TemplateDE.java com.americancoders.edi.TemplateEnvelope.java com.americancoders.edi.TemplateFunctionalGroup.java com.americancoders.edi.TemplateLoop.java com.americancoders.edi.TemplateLoopContainer.java com.americancoders.edi.TemplateSegment.java com.americancoders.edi.TemplateSegmentContainer.java com.americancoders.edi.TemplateTable.java com.americancoders.edi.TemplateTransactionSet.java com.americancoders.edi.TimeDE.java com.americancoders.edi.Tokenizer.java com.americancoders.edi.TransactionSet.java com.americancoders.edi.TransactionSetFactory.java com.americancoders.edi.ValidXMLEDIParser.java com.americancoders.edi.X12.Functional_Acknowledgment.java com.americancoders.edi.X12.Note_Special_Instruction.java com.americancoders.edi.X12.X12DocumentHandler.java com.americancoders.edi.X12.X12DocumentParser.java com.americancoders.edi.X12.X12Envelope.java com.americancoders.edi.X12.X12FunctionalGroup.java com.americancoders.samples.EdifactExample.java com.americancoders.samples.SampleX12DocumentHandler.java com.americancoders.samples.SampleX12DocumentHandlerAndViewer.java com.americancoders.samples.build997.java com.americancoders.samples.viewsample.java com.americancoders.samples.viewsamples.java com.americancoders.util.ByteArrayDataBinary.java com.americancoders.util.FTPClient.java com.americancoders.util.LogFile.java com.americancoders.util.Util.java
Schedule B - Fee Schedule
|Additional Features and Support Packages|
|Additional Run-time Licenses - onsite||$50 - per machine|
|Binary Distribution License - per copy||$250||Unlimited Binary Distribution License||$10000|
|6 months email support||$3500|
|All Rules files from either X12 or EDIFACT.
Such as 4010 for X12
or D99A for EDIFACT
1 month free telephone support.
12 months free email support.
|Rules Files||$90.00 per transaction set.|
|One month email support||$500|
|One month telephone support||$2000|