THIS SOFTWARE LICENSE AGREEMENT is effective today, by and between AGENT SYSTEMS, INC., a Texas corporation (hereinafter known as "AGENT"), and the installer of this software (hereinafter known as "LICENSEE") who agree as follows:
1. For the purposes of this Agreement the term "Licensed Materials" shall be defined to include The Smart Box(TM) System, Version 1.0 or later, in object code form, the manuals in printed form and on CD-ROM, and all other instructional and informational material created and delivered by AGENT under the terms of the Agreement between LICENSEE and AGENT for a Fare Collection System (collectively, the "FCS Agreement").
2. This Agreement is entered into in conjunction with the documents comprising the FCS Agreement. The terms of the FCS Agreement are incorporated into this Agreement by this reference. Should there be any conflict between the terms of this Agreement and any provision of the FCS Agreement, the terms of the FCS Agreement shall control in accordance with the Order of Precedence established in the FCS Agreement.
3. In accordance with the FCS Agreement, the LICENSEE will be responsible for assuring the proper location, use, management, security for and supervision of the Licensed Materials, audit controls, operating methods, and office procedures for establishing the necessary controls over access to data, and for establishing all proper checkpoints and procedures necessary for the intended use of the Licensed Materials, and for the security of the stored data.
4. AGENT claims to own copyrights in the Licensed Materials including but not limited to the AGENT software programs, in all software developed by AGENT for use under the FCS Agreement, and in the manual of instruction. LICENSEE agrees that it will use such copyrighted items only in accordance with the license and for the term set forth within the provisions of this Agreement and the FCS Agreement. LICENSEE acknowledges the claim of AGENT, that LICENSEE is acquiring no title or property rights in such copyrighted material, and that LICENSEE's interests are only those of a LICENSEE as specifically set forth hereinafter.
5. AGENT is the owner of valuable trademark rights in the trademarks "Agent," "The Agent," "Agent Systems," "The Smart Box" and in other affiliated words, designs, configurations and logos used in conjunction with the System described in this Agreement and the FCS Agreement. Except for application of these marks to the equipment manual and programs done by AGENT, the use of these marks, logos and designs by LICENSEE in advertising, or in any other manner, is specifically prohibited without the prior written consent of AGENT.
6. AGENT hereby grants to LICENSEE a paid-up, nonexclusive, nontransferable, perpetual license to use the Licensed Materials under the following terms and conditions:
6.1. LICENSEE is granted a license to use the Licensed Materials for the term of this license and to exercise its rights to the fare collection system under the FCS Agreement.
6.2. The license to use the Licensed Materials is limited to the installation at the fare collection system as set out in the FCS Agreement, and no others.
6.3. The license granted by this Agreement does not include the right to copy the Licensed Materials except: (1) as may be reasonably necessary for authorized use and for back-up and archival purposes (as allowed under the U.S. Copyright Act); and (2) for the copying of manuals by LICENSEE for the exclusive use of LICENSEE in the operation of equipment purchased under the FCS Agreement.
6.4. LICENSEE may transfer and/or assign this Agreement and/or its license to use the Licensed Materials to a third party (i.e., an affiliate, outside contractor, successor, etc.), if LICENSEE goes out of existence or decides to outsource its information technology or other operations currently being handled by LICENSEE in-house.
6.5. This Agreement does not limit the number of individuals authorized to use the Licensed Materials concurrently.
6.6. LICENSEE shall not operate the Licensed Materials in any central processing unit, farebox, or sales station other than those purchased under the terms of the FCS Agreement, without the prior written consent of AGENT.
6.7. The license granted under the terms of this Agreement shall continue for so long as LICENSEE is using the fare collection system purchased under the FCS Agreement. This license may be terminated by LICENSEE in accordance with the FCS Agreement, and by AGENT if any of the following events occur and are not cured by LICENSEE within thirty (30) days of LICENSEE's receipt of written notice of the event from AGENT:
6.7.1 LICENSEE's unauthorized copying of the Licensed Materials, or LICENSEE's use the Licensed Materials in equipment not permitted under the terms of this Agreement or the FCS Agreement, unless LICENSEE has sought and received the prior written consent to do so from AGENT.
6.7.2 Failure or refusal of LICENSEE to pay any undisputed amount owing to AGENT under the terms of the FCS Agreement when due.
6.7.3 LICENSEE performing any act of bankruptcy, or being placed under the protection of the Federal Bankruptcy Courts, either voluntarily or involuntarily.
6.7.4 Unpermitted use by LICENSEE of any trademark, design or logo belonging to AGENT.
6.7.5 Any unpermitted transfer or assignment by LICENSEE of Licensed Materials.
6.7.6 Any unpermitted transfer or assignment by LICENSEE of this Agreement.
6.7.6 Loss by LICENSEE of the right to use any of the equipment purchased under the FCS Agreement, whether by passage of time, sale, foreclosure or otherwise, except as expressly authorized above.
6.7.7 LICENSEE ceasing to use the Licensed Materials.
6.8 By executing this Agreement, the LICENSEE acknowledges the copyright claims of AGENT to the Licensed Materials.
6.9 AGENT warrants that the Licensed Materials shall conform to and operate in accordance with all of the warranties set forth in the FCS Agreement.
6.10 Immediately upon the termination of this license, LICENSEE shall cease using the Licensed Materials, and shall return all such Licensed Materials to AGENT at the then current address for giving written notice. No copies of Licensed Materials shall be retained by LICENSEE.
7. During the term of this Agreement, AGENT shall provide LICENSEE with all required technical information and assistance, such as data base structure, data base definition, parameter settings, etc. During the Warranty Period, as defined in the FCS Agreement, such information and assistance shall be provided to LICENSEE at no charge. After the expiration of the Warranty Period, such information and assistance shall be provided to LICENSEE at AGENT's lowest rates for support then being charged to its most favored customer(s). The fees charged to LICENSEE for technical information and assistance may not be increased by more than ten percent (10%) in the aggregate over the first five (5) years after the expiration of the Warranty Period.
8. In the event that AGENT commits a Default, AGENT shall release to LICENSEE the most recently updated version of the Source Code(s) to the Licensed Materials, to the extent that AGENT has the right to do so, with limited rights for LICENSEE to use the Licensed Materials in support of the fare collection systems sold to LICENSEE under the FCS Agreement. As used in this Section:
8.1 "Source Code" means the human understandable computer language version of the Licensed Materials and Updates, including any programmer notes and remarks incorporated in the documentation, and any source listing and documentation therefore which is necessary or helpful in using, technically supporting, maintaining, debugging or modifying the Licensed Materials.
8.2 "Default" meaning any circumstance where AGENT is not fulfilling its technical support obligations under this Agreement and/or the FCS Agreement or circumstances where there is a defect in the Licensed Materials which prevents LICENSEE from using the Licensed Materials for its intended purposes, including through liquidation, acquisition, merger, transfer of assets, bankruptcy, or the like; or where AGENT discontinues technical support for any portion of the computer system environment for which LICENSEE is licensed to use of the Licensed Materials; or if there is a change of company ownership or management after which the Licensed Materials are not supported at the level prior to such change.
8.3 "Updated" or "Updates" refers to "new releases" in which any changes to the Licensed Materials, such additional functionality, improvements to Software speed, new features, improved compatibility, bug-fixes and other error corrections have been incorporated into the source code."
9. Written notice will be considered effective at the time actually received after mailing by first class mail, postage prepaid, to the parties at the following addresses:
Brian Waters, President
Agent Systems, Inc.
2015 Midway Road
Suite 111
Dallas, TX 75006-4918
(972) 774-0400
(972) 392-7301 FAX
The address for giving notice may be changed by complying with the written notice provisions of this paragraph.
