OEM and Development Agreement - Excalibur Technologies Corp. and ImageWare Software Inc.
EXCALIBUR TECHNOLOGIES CORPORATION
OEM & DEVELOPMENT AGREEMENT
BETWEEN
EXCALIBUR TECHNOLOGIES CORPORATION
AND
IMAGEWARE SOFTWARE, INC.
This License Agreement is made by and between Excalibur Technologies Corporation
("Excalibur"), a corporation organized and existing under the laws of the state
of Delaware, with its principal place of business at 1921 Gallows Road, Suite
200 Vienna, VA 22182, and ImageWare Software, Inc. ("OEM"), a corporation
organized and existing under the laws of the state of California, with its
principal place of business at 15373 Innovation Drive, Suite 120, San Diego, CA,
92128. This Agreement shall be effective on the date of the last signature
affixed hereto ("Effective Date").
In consideration of the mutual covenants, terms and conditions, and other
valuable consideration contained herein, Excalibur and OEM agree:
1. DEFINITIONS.
1.1 LICENSED PRODUCT. The term "Licensed Product" means the computer
programs, in object code only, as specified in Schedule 1 and as
detailed in Excalibur's Product Specifications incorporated herein by
reference.
1.2 LICENSED SOURCE CODE PRODUCT. The term "Licensed Source Code Product"
means the computer programs in object code and source code, as
specified in Schedule 2 and as detailed in Excalibur's Product
Specifications and user and developer documentation attached thereto.
1.3 INTEGRATED SYSTEM. The term "Integrated System" means OEM's
application incorporating the Licensed Product and/or additional
products to be named in writing to Excalibur during the Term of this
Agreement, and to be agreed upon in writing by Excalibur, such
agreement not to be unreasonably withheld.
1.4 END-USER. The term "End-User" means OEM's customer who accesses the
Licensed Product by using the Integrated System.
1.5 TERRITORY. The term "Territory" means Worldwide.
1.6 DOCUMENTATION. The term "Documentation" means a functional
description of the Licensed Product, directions for installation,
verification of installation, use, and any other explanatory material
necessary for an End-User to perform all of the functions of the
Licensed Product.
1.7 SUPPLEMENTS. The term "Supplements" means a computer program that
compliments or may be used in conjunction with the Licensed Product,
but which is not required for the Licensed Product to substantially
operate within the Licensed Product specifications.
1.8 INITIAL SHIP DATE. The term "Initial Ship Date" means the date OEM
ships to an End-User the first available release of the Integrated
System.
1.9 DERIVATIVE WORK. The term "Derivative Work" shall mean a work that is
based on the Licensed Product or Licensed Source Code Product, that,
if prepared without authorization of Excalibur, would constitute an
infringement of Excalibur's intellectual property rights.
1.10 BETA. The term "Beta" as it applies to the deliverable software code
under this Agreement shall mean the object code tested by Excalibur
but as of the date of delivery not installed at a commercial site.
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2. LICENSE.
2.1 In accordance with the terms of this Agreement, Excalibur grants to
OEM, and OEM accepts from Excalibur, a non-exclusive, sublicensable
in combination with Integrated System, license to combine in
non-printed machine readable form the Licensed Product into OEM's
applications, to create an Integrated System and to market and make
the Licensed Product available, in the Territory. Such license shall
be perpetual so long as OEM is in compliance with the material terms
of this Agreement.
2.2 Except as provided for in section 20.6 herein, Excalibur grants to
OEM a non-exclusive, non-transferable, non-assignable, royalty
bearing license which shall be perpetual and irrevocable so long as
OEM is in compliance with the material terms of this Agreement to use
at its election the Licensed Source Code Product, in each instance,
in conducting development, and utilizing the Licensed Source Code
Product to create new products which shall be Derivative Works or
composite works and to license, sublicense or otherwise commercially
utilize or dispose of such Derivative Works as OEM shall see fit in
its sole discretion.
During the Term of this Agreement.
2.3 OEM shall require each End-User of Integrated System, in whole or in
part to be subject to the restrictions set forth in this Section 2.3.
Such restrictions shall be set forth either in a written agreement
signed by the End-User prior to or upon receipt of the Integrated
System, or in a preprinted statement that accompanies the Integrated
System in a conspicuous and fully visible manner at the time of their
transfer.
By accepting delivery of the Integrated System or by executing a
written agreement, the recipient must agree to be bound by the
restrictions in the following sections.
2.3.1 The End-User may (1) use the Licensed Product only as an
integral component of the Integrated System; (2) make one copy
of the Integrated System in machine-readable form for
nonproductive backup purposes only; and (3) use the Integrated
System only for internal purposes and not for service bureau
work, or time-sharing arrangements unless authorized in
writing by Excalibur.
2.3.2 The End-User may not use, copy, modify, or transfer the
Integrated System, or any copy, adaptation, transcription, or
merged portion thereof, except as expressly permitted by
Excalibur. The End-User rights are nonexclusive and
nonassignable. If the End-User transfers possession of any
copy, adaptation, transcription, or merged portion of the
Integrated System to any other party (except to a successor
in interest of the End-User's business that assumes all of
the End-User's obligations with respect to the Integrated
System), the End-User's rights in the Integrated System are
automatically terminated.
2.3.3 Excalibur shall have the sole and exclusive ownership of all
right, title, and interest in and to the Licensed Product,
including ownership of all trade secrets and copyrights
pertaining thereto, subject only to the rights and privileges
expressly granted by Excalibur hereunder.
2.3.4 The End-User is not entitled to receive Source Code, and
under no circumstances may the End-User reverse-compile or
reverse-assemble the Object Code.
2.3.5 The OEM must reproduce and include in all copies of the
Integrated System, the copyright notice(s) and proprietary
legend(s) of Excalibur as they appear in the Licensed Product
and on the media containing the Licensed Product supplied to
End Users by OEM or by OEM to its distributors.
2.3.6 The End-User's obligations hereunder remain in effect for as
long as it continues to possess or use the Licensed Product
as a component of the Integrated System, and such obligations
shall be for the benefit of Excalibur and shall be
enforceable by Excalibur.
2.3.7 During the term of this Agreement, Excalibur agrees that it
will not execute a license to deliver the source code that is
being licensed to OEM hereunder as Licensed Product or
Licensed Source Code Product to the firms listed in Schedule 3
attached hereto, or to directly or indirectly for a period of
six months from the date of this Agreement either by itself or
with third parties develop or market any product competing
with the Licensed Source Code Product or Licensed Product.
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3. IMPLEMENTATION PROGRAM.
3.1 Within ten (10) business days of the Effective Date, Excalibur shall
commence delivery to OEM, in object code form, the Licensed Product
and in source code form, the Licensed Source Code Product.
3.2 OEM agrees to integrate the Licensed Product with an application, and
fully test and debug the Integrated System prior to licensing the
Integrated System to an End-User. Excalibur shall be responsible for
fully debugging and testing the Licensed product prior to delivery
to OEM. Excalibur shall transfer the source and object code for the
Licensed Source Code Product "as is".
3.3 During the Term of this Agreement, other Excalibur supported versions
of the Licensed Product may be delivered to OEM from time to time.
Excalibur shall be responsible for porting and testing the additional
versions prior to delivery to the OEM.
4. GENERAL DUTIES OF OEM.
4.1 During the Term and any extension of this Agreement, OEM agrees to
use its best efforts to actively promote and market in the Territory
the Licensed Product as part of the Integrated System and shall
incorporate a reference to the name EXCALIBUR TECHNOLOGIES (in
appropriate marketing literature and advertising).
4.2 OEM shall ensure that in all its marketing literature, advertising,
and dealings with End-Users relating to the Licensed Product, OEM
will clearly indicate that it is acting as the licensee of
Excalibur and not as its agent or partner.
4.3 OEM shall provide End-Users, a suitable training and support
service necessary to use the Licensed Product as part of the
Integrated System.
4.4 OEM shall be solely responsible for the Licensing of the Integrated
System to End-Users.
4.5 Upon execution of this agreement between Excalibur and OEM, and
following approval of OEM, OEM shall allow Excalibur the right to
release a general press announcement to selected publications in
addition to the right to use OEM as a reference account in selected
publications at Excalibur's discretion.
5. GENERAL DUTIES OF EXCALIBUR.
5.1 Excalibur shall support OEM's marketing activities in relation to
the Licensed Product by providing, at no charge to OEM, such advice
and assistance, in relation to the Licensed Product as OEM may
reasonably request from time to time. Such assistance may include
but shall not be limited to technical support in the preparation of
proposals and operation and use of the Licensed Product,
competitive product research and information, oral presentations to
prospective End-Users, and joint marketing, sales, and promotional
programs in which the parties agree to collaborate.
5.2 In accordance with the provisions in Section 6.0, Excalibur shall
provide OEM with an updated version of the Licensed Product and
associated Documentation as new versions become available.
Excalibur shall provide these updated versions no later than thirty
(30) days after Excalibur makes the same versions commercially
available to the marketplace.
5.3 Technical phone support to OEM for the Licensed Product will be
provided from Excalibur's Carlsbad, California engineering support
office. Support shall be available 8:00 AM to 5:00 PM Pacific time,
Monday through Friday, excluding Excalibur observed holidays. On
site support will be available to OEM at the rates described in
Subsection 6, of this Agreement.
5.4 Excalibur will assist OEM in developing a business and marketing
plan with specific goals for developing the markets for the
Integrated System as well as meeting the sales objectives
envisioned by the parties.
6. ROYALTIES AND SUPPORT FEES.
6.1 In consideration of the license granted by Excalibur to OEM under
this Agreement, OEM agrees to:
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6.1.1 Pay Excalibur a non-cancelable, non-refundable 18 (eighteen)
month prepaid royalty and distribution fee of $100,000. This
distribution fee shall authorize OEM to distribute an
unlimited number of copies of the Licensed Product as an
integrated component of the Integrated System for a period
of 18 months. Payment of this distribution fee shall be on
or before July 15, 1998.
6.1.2 OEM shall be authorized to distribute copies of the Licensed
Product only as an integrated component of the Integrated
System. Any other type of distribution of the Licensed
Product is strictly prohibited.
6.1.3 OEM agrees to pay Excalibur a royalty of (1) 25% of the net
sale price net of returns, promotional discounts, and
shipping to end users of OEM's End-User Application
Integrated System or Derivative Work that incorporates all
or any portion of the Excalibur Face DataBlade Description,
or (2) a royalty of 10% of the net sale price net of returns
and promotional discounts and shipping to end users of OEM's
End User Application Integrated System or Derivative Work
that incorporates all or any portion of Excalibur Face
Recognition SDK, or (3) a royalty of 10% of the sale price
net of returns, promotional discounts and shipping to end
users of OEM's Integrated System or Derivative Works that
incorporates Excalibur Visual RetrievalWare. Until such time
that such royalties payable to Excalibur exceeds $100,000 no
royalties will be paid to Excalibur during the Agreement
Term. Thereafter, OEM agrees to pay such royalties due
Excalibur on a quarterly basis on or before the 15th of the
month following the quarter within which payment for such
sales for the OEM End-User Application product have been
made. For the purposes of this Agreement, a quarter shall be
defined as the 3 months ended March 31, June 30, September
30, and December 31.
6.2 On an as required basis, Excalibur shall provide on site technical
support to OEM during the implementation program through the
Initial Ship Date. OEM shall pay Excalibur at the rate of $2,000
per day, and reimburse for all reasonable transportation, lodging,
and per diem expenses incurred by Excalibur's technical
representative. At the beginning of each month, Excalibur shall a
provide a summary statement and invoice to the OEM for services
rendered during the previous month. Payments to Excalibur for
services provided herein are due thirty (30) days after receipt of
Excalibur's invoice. If ordered under separate agreement during a
one year period from the date of this Agreement, Excalibur will
provide consulting service to ImageWare at a rate of $1,250.00 per
day. Travel, costs and expenses shall be billed in addition.
6.3 In order for Excalibur to provide software maintenance for the
Licensed Product, OEM must purchase yearly maintenance at a rate of
15% of the distribution fee as referenced in section 6.1.1 above.
Excalibur shall have no responsibility to maintain the Licensed
Product unless OEM purchases annual maintenance provided by
Excalibur.
The Licensed Source Code Products under Schedule 12 hereto are
licensed "as is" and no maintenance shall be provided. Limited
telephone support shall be provided (1-2 hours per week) by
Excalibur for a period of 6 weeks from the date of this Agreement.
7. LIMITED WARRANTY AND DISCLAIMER OF LIABILITY.
7.1 Excalibur warrants that it is, and on the date of delivery of
Licensed Product and Licensed Source Code Product, will be, the
sole owner of all copyrights and intellectual property rights for
the Licensed Product and Licensed Source Code Product; that it has,
and on the Effective Date will have, the full right and authority
to enter into this Agreement.
7.2 Excalibur warrants that the Licensed Product and updates of the
Licensed Product provided under this Agreement will substantially
perform in accordance with the published specifications for a
period of 90 days following delivery to OEM. In the event the
Licensed Product fails to perform substantially in accourdance with
the published specifications, and Excalibur is unable to correct
any major non-conformance within 90 days of written notification by
OEM, OEM's sole remedy shall be a return of the applicable royalty
fees paid to Excalibur for the Licensed Product.
7.3 Excalibur does not warrant that the functions contained in the
Licensed Product or in any update will meet the requirements of OEM.
7.4 Except as set out in Subsections 7.1 and 7.2, the warranties
contained in Subsection 7.1 and 7.2 are made in lieu of all other
express warranties, whether oral or written. Only an authorized
officer of Excalibur may make modifications to this warranty or
additional warranties binding on Excalibur, and such modifications
or additional warranties must be in
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writing. Accordingly, additional statements such as those made in
advertising or presentations, whether oral or written, do not
constitute warranties by Excalibur and should not be relied upon as
such.
7.5 DISCLAIMER OF WARRANTIES. EXCEPT AS PROVIDED IN THIS AGREEMENT,
EXCALIBUR GRANTS NO IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND NO EXPRESS WARRANTIES OTHER THAN THOSE SET
FORTH HEREIN. EXCALIBUR GRANTS NO WARRANTIES WITH RESPECT TO THE
SOURCE CODE PORTIONS OF THE LICENSED PRODUCTS.
8. INDEMNIFICATION.
8.1 Excalibur, at its own expense, will indemnify, hold harmless, and
defend OEM for any action brought against OEM to the extent that it
is based on a claim that the Licensed Source Code Product, or
Licensed Product or any update of the Licensed Product used within
the scope of this Agreement infringes any patent, copyright,
license, trade secret, or other proprietary right of a third party
in the Territory, provided that Excalibur is immediately notified
in writing of such a claim. Excalibur shall have the right to
control the defense of all such claims, lawsuits, and other
proceedings. In no event shall OEM settle any such claim, lawsuit,
or proceeding without Excalibur's prior written approval. Excalibur
shall have no liability for any claim under this section if a claim
for patent, copyright, license, or trade secret infringement is
based on the unauthorized modification of the Licensed Product by
OEM, its employees, or agents.
8.2 In the event a preliminary or final judgment shall be obtained
against OEM's use or operation of the Licensed Product, or any part
thereof, by reason of an alleged infringement, Excalibur may
replace at its election, in whole or in part, the Licensed Product
with a substantially compatible and functionally equivalent
computer program or modify the Licensed Product to avoid the
infringement.
9. TECHNICAL SUPPORT AND UPDATES.
9.1 Subject to OEM's payment of the annual support fees contained in
Subsection 6.3, Excalibur, shall provide OEM with support of a
technical nature with respect to all aspects of the Licensed
Product and updates to the Licensed Product including their
installation and use.
9.2 During the Term, and any extension thereof and subject to OEM's
payment of support fees, Excalibur shall provide to OEM all
versions of, and all updates to the Licensed Product as Excalibur
may make commercially available to its customers.
9.3 Updates include enhancements and corrections of the Licensed
Product. Use of updates with or in place of the Licensed Product
shall be fully governed by and subject to the terms of this
Agreement relating to the reproduction and use of the Licensed
Product. Any portion of the Licensed Product replaced by an update
shall be promptly destroyed by OEM.
10. CONFIDENTIALITY.
10.1 Each party shall keep secret and confidential all confidential
information disclosed by the other about its business or the
Licensed Product or trade secrets, and shall not use such
information, nor disclose such information to any third party,
except to the extent that will enable OEM to fulfill its
obligations under this Agreement, including the right to disclose
such information as may be necessary in promoting the Licensed
Product to prospective End-Users in the Territory.
10.2 If either party hereto receives from the other party written
information which is marked or understood to be "Confidential"
and/or "Proprietary", the receiving party agrees not to use such
information except in the performance of this Agreement, and to
treat such information in the same manner as it treats its own
confidential information, and to prevent unauthorized use or
disclosure, of the confidential information. The obligation to keep
information confidential shall not apply to any such information
that has been disclosed in publicly available sources; is, through
no fault of the party receiving the confidential information,
hereafter disclosed in a publicly available source; is in rightful
possession of the party receiving the confidential information
without an obligation of confidentiality; or is required to be
disclosed by operation of law.
10.3 Excalibur represents and OEM hereby acknowledges that the source
and object code constituting the Licensed Product and updates of
the Licensed Product which are embodied on magnetic or other
storage media contains confidential and trade secret material. OEM,
its employees, and agents agree that they will not attempt to
decompile or disassemble the
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object code of the Licensed Product or updates. OEM further agrees
to use all reasonable endeavors to ensure that its employees and
agents observe this Subsection 10.3.
10.4 OEM agrees to maintain the confidentiality of the Licensed Product
and to protect as a trade secret any portion of the Licensed
Product which has not been publicly disclosed by using reasonable
endeavors to prevent any unauthorized copying, use, distribution,
installation, or transferring possession of the Licensed Product as
described in Subsection 12.2 of this Agreement by OEM, its
employees, or agents.
11. PROPRIETARY NOTICES.
11.1 OEM agrees to reproduce fully the trade secret or copyright notice
or other proprietary notices provided by Excalibur from time to
time and shall ensure that they appear clearly on all copies of the
Integrated System being licensed to End-Users. In order to protect
Excalibur's trade secrets and copyrights in the Licensed Product,
OEM agrees not to attempt in any way to obliterate or destroy the
trade secret or copyright notice. Violation of any provision in
this Subsection shall be the basis for the immediate termination of
this Agreement.
12. TITLE TO AND RIGHTS IN LICENSED PRODUCT & LICENSED SOURCE CODE PRODUCT.
12.1 The Licensed Product and updates of the Licensed Product are
proprietary to Excalibur, and title to them shall remain with
Excalibur. All applicable common law and statutory rights in the
Licensed Product and updates of the Licensed Product, including,
but not limited to, rights in confidential and trade secret
material, source code, object code, trademarks, service marks,
patents, and copyrights, shall be and will remain the property of
Excalibur. OEM shall have no right, title, or interest in such
proprietary rights except as provided in this Agreement.
12.2 OEM is prohibited from distributing, transferring possession of, or
otherwise making available copies of the Licensed Product to any
person other than its employees with the right to know, and from
reproducing and installing the Licensed Product, except as
authorized under Section 2 of this Agreement. OEM shall advise all
End-Users that they are prohibited from reproducing, distributing,
transferring possession of, or otherwise making available copies of
the Licensed Product, and from installing copies of the Licensed
Product on any computer not within the Territory. OEM is prohibited
from making any modifications, adaptations, enhancements, changes,
or derivative works of the Licensed Product, and OEM shall advise
all users that they are prohibited from making any modifications,
adaptations, enhancements, changes, or derivative works of the
Licensed Product. Violation of any provision in this Subsection
shall be the basis for immediate termination of this Agreement in
accordance with Subsection 18.1.1.
12.3 The parties expressly recognize that intellectual property rights
may be created pursuant to this Agreement. The parties hereto
expressly agree that both during and upon termination of this
Agreement, any intellectual property rights of any nature
whatsoever that are conceived and arise directly or indirectly from
use by OEM of the Licensed Source Code Product, including, without
limitation, all rights in collective and Derivative Works, in their
entirety, including without limitation all rights in the portion of
such work or intellectual property rights comprising all or part of
the Licensed Source Code Product, shall be owned in full and
without reservation by OEM. However, all title to the Licensed
Source Code Product in the version licensed under the terms of this
Agreement, as at the date of this Agreement, shall remain with
Excalibur. However, in addition, so long as any product created by
OEM shall include such portions of Licensed Source Code Product
such that such new product would constitute a Derivative Work, OEM
shall pay Excalibur the applicable royalty set out above for the
term of this Agreement.
13. LIMITATION OF REMEDIES.
13.1 IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS DIRECTORS, OFFICERS,
AGENTS, EMPLOYEES OR ADVISORS BE LIABLE IN CONTRACT OR IN TORT
(INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE) OR
FOR ANY WARRANTY OR UPON ANY OTHER LEGAL OR EQUITABLE GROUND FOR
ANY LOSS OF USE, PROFIT OR REVENUE, OR FOR ANY LOSS OR EXPENSE, OR
ANY DIRECT, INDIRECT CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE,
EXEMPLARY OR OTHER DAMAGES INCURRED OR SUFFERED, IN CONNECTION WITH
THIS AGREEMENT, THE LICENSED PRODUCT, OR THE DOCUMENTATION. THE
LIABILITY OF EXCALIBUR FOR ANY CLAIM, LIABILITY,
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DAMAGE, PENALTY, LOSS OR EXPENSE SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY OEM
TO EXCALIBUR HEREUNDER. THE PROVISIONS OF THIS CLAUSE SHALL BE SUBJECT TO, AND
SHALL NOT LIMIT, THE PROVISIONS OF CLAUSE 8 AND 10 OF THIS AGREEMENT.
14. RELATIONSHIP OF THE PARTIES.
14.1 For purposes of this Agreement, OEM is not an agent of Excalibur,
and OEM has no express or implied authority to act on behalf of or
make any representations whatsoever on behalf of Excalibur.
Excalibur has no right to control any activities of OEM outside
the terms of this Agreement.
15. TAXES.
15.1 OEM shall, in addition to other amounts payable under this
Agreement, pay all taxes, with the exception of income taxes,
levied or imposed by reason of the transactions contemplated in
this Agreement. OEM shall promptly pay to Excalibur an amount
equal to any such tax(es) actually paid or required to be
collected or paid by Excalibur. Excalibur shall be liable for
payment of all taxes levied on its net income arising out of or
related to this Agreement.
16. SUPPLEMENTS.
16.1 From time to time, Excalibur may make supplements available to
OEM. SUPPLEMENTS ARE NOT LICENSED UNDER THE TERMS OF THIS
AGREEMENT. Subject to availability, OEM may make special
arrangements with Excalibur to license the Supplement for use as
part of the Integrated System.
17. AGREEMENT TERM.
17.1 This Agreement shall commence on the Effective Date and shall
remain in effect perpetually for a period of 3 (three) years with
respect to Licensed Source Code Product and for 18 (eighteen)
months with respect to Licensed Product ("Term"). Thereafter it
shall automatically terminate with the understanding that the
parties shall make best efforts to renegotiate a mutually
beneficial agreement.
18. DEFAULT AND TERMINATION.
18.1 Either party may terminate this Agreement immediately by notice in
writing to the other if:
18.1.1. one party materially defaults on any of its obligations
under this Agreement, and the other party shall give
written notice of such default, and, if the party in
default has not cured the default within thirty (30) days
of the notice, the other party shall have the right to
terminate this Agreement; or
18.1.2. the other party becomes or threatens to become or is at
risk of becoming insolvent or declares bankruptcy; or
18.1.3. the other party ceases or threatens to cease the
operations of its business.
18.2 Excalibur may terminate this Agreement immediately if OEM fails to
make timely payment to Excalibur for the distribution fee, and/or
support fees contained in Section 6 of this Agreement.
18.3 Upon termination of this Agreement the license granted under this
Agreement to use the Licensed Product is immediately revoked. In
the event this Agreement is terminated OEM shall cease the
licensing and all marketing activities of the Integrated System
and return to Excalibur all copies of the Licensed Product,
updates and Documentation in OEM's possession or control. In the
alternative, upon request of Excalibur, OEM shall destroy all such
copies of the Licensed Product, updates and Documentation and
certify in writing that they have been destroyed. TERMINATION
SHALL NOT RELIEVE OEM OF THEIR OBLIGATIONS REGARDING THE
CONFIDENTIALITY OF THE LICENSED PRODUCT AND UPDATES. OEM's End
Users that have purchased perpetual licenses of the Integrated
System(s) shall have the right to continue to use the Licensed
Product or Licensed Source Code Product as part of an Integrated
System.
18.4 Without limiting any of the provisions contained in Subsection
18.1, in the event of termination as a result of OEM's failure to
comply with any of its obligations under this Agreement, OEM shall
continue to be obligated for any
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payments due as of the date of termination. Termination of the
license shall be in addition to, and not in lieu of, any equitable
remedies available to Excalibur.
19. ARBITRATION.
19.1 Except for the right of either party to apply to a court of
competent jurisdiction for a temporary restraining order, a
preliminary injunction, or other equitable relief to preserve the
status quo or prevent irreparable harm, any controversy or claim
arising out of or relating to this Agreement or to its breach
shall be finally settled by binding arbitration. Any such
arbitration will to be conducted in the in the State of
California, by one arbitrator, to be appointed, and to conduct
arbitration pursuant to the RULES OF THE AMERICAN ARBITRATION
ASSOCIATION. The parties hereby agree to exclude any right of
application or appeal to any court in any jurisdiction whatsoever,
arising from or with respect to any award, by such arbitrator.
20. GENERAL.
20.1 Each party acknowledges that it has read this Agreement and any
exhibit, understands them, and agrees to be bound by their terms
and conditions, and further agrees that they are the complete and
exclusive statement of the agreement between the parties which
supersedes and merges all prior proposals, understandings, and all
other agreements, oral and written, between the parties relating
to this Agreement. This Agreement may not be modified or altered
except by written instrument duly executed by both parties.
20.2 Any notice or communication required or permitted in this
Agreement shall be in writing and shall be deemed to have been
duly given on the day of service if served personally, or by
electronic means, or three (3) days after mailing if mailed by
first class mail, registered or certified, postage prepaid, and
addressed as follows:
TO: EXCALIBUR: TO: OEM:
Excalibur Technologies Corporation ImageWear Software, Inc.
1921 Gallows Road, Suite 200 15373 Innovation Drive, Suite 120
Vienna, VA 22102 San Diego, CA 92128
Attn: Contracts Manager Attn:
20.3 Governing Laws. This Agreement and performance under this
Agreement shall be governed by the laws of the State of Virginia.
20.4 Limitations Period. No action, regardless of form, arising out of
this Agreement may be brought by either party more than two (2)
years after the cause of action has arisen.
20.5 Severability. If any provision of this Agreement is invalid under
any applicable statute or rule of law, it is to that extent to be
deemed omitted. The remainder of the Agreement shall be valid and
enforceable to the maximum extent possible.
20.6 Assignment. This License is personal to OEM and its affiliates
and subsidiaries of 51% or greater ownership and may not be
assigned or sub-let except with the express prior written consent
of Excalibur, such consent not to be unreasonably withheld or
delayed.
20.8 Waiver. The waiver or failure of either party to exercise in any
respect any right provided for in this Agreement shall not be
deemed a waiver of any further right under this Agreement.
20.9 Headings. The headings that appear at the beginning of the
several sections contained in this Agreement have been inserted
for identification and reference purposes only and shall not be
used in the construction and interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement.
AGREED: AGREED:
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EXCALIBUR TECHNOLOGIES CORPORATION: IMAGEWARE SOFTWARE, INC.
Signature /s/ Dan C. Stroman Signature /s/ Paul Devermann
Dan C. Stroman Paul Devermann
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Name Name
Director of Customer Accounting Vice President
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Title Title
Date April 30, 1998 Date 4/30/98
SCHEDULES TO THIS AGREEMENT
Schedule 1: Licensed Product
Schedule 2: Licensed Source Code Products
Schedule 3: List of Firms that will not be licensed the source code licensed to
OEM hereunder as Licensed Product or Licensed Source Code Product
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SCHEDULE 1
LICENSED PRODUCT
The Licensed Product shall be comprised of the following components.
1. Excalibur's Visual RetrievalWare (SDK
The Excalibur Visual RetrievalWare SDK
The Excalibur Visual RetrievalWare Software Developers Kit (SDK) is a
programming toolkit for building image analysis and pattern recognition
applications involving the recognition and retrieval of images. The components
include C and C++ class libraries, a Tel/Tk interpreter, several sample programs
with source code, and thorough reference documentation. The SDK enables the
generic manipulation, indexing and retrieval of images and is being provided for
image conversion and manipulation. It includes an Image Processing Library,
Feature Extraction support library and other related tools to support the
development of customer applications and Feature Extractors. The SDK could be
enhanced to support other non-image datatypes to allow the creation of a wider
range of multimedia or rich data type feature extractors.
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SCHEDULE 2
LICENSED SOURCE CODE PRODUCT
1. Face DataBlade for the Informix Universal Server (Includes source code).
2. Face Recognition SDK and Face Feature Extractors (Includes source code and
test/sample programs).
Excalibur Face DataBlade Description (EFR)
Excalibur is providing ImageWare with an "as is" source code license for the EFR
DataBlade. Additionally Excalibur is providing an "as is" source code license
for the Excalibur Face Recognition SDK and a binary copy of the current version
of Visual RetrievalWare.
The EFR DataBlade Module is based on feature vector algorithms and processing
techniques unique to Excalibur. This DataBlade will allow the creation of user
applications to create databases based on the characteristics, or features,
extracted from a face. These features will be learned into image indices (using
the secondary access method, efrnet), and will be used to search for images
containing characteristics similar to a clue image.
The EFR DataBlade will consist of the following components:
- THE FACE CLIENT COMPONENT. This component contains the client
functions that perform the necessary preprocessing steps on an image that
contains one or more faces.
- THE FACE FEATURES COMPONENT. A variety of types and server
functions that make up the efrnet secondary access method. This access method
will provide the necessary functions to create and maintain face indices, and
allows for indexing and searching a database of faces.
- THE FACE PROCESSING COMPONENT. This component provides the server
functions to support indexing, search and retrieval of face images. The
function, which extracts the facial features, will be included in this group, as
will the positive identification capability.
- SQL interface for client application development. The SQL API will allow
third parties to develop database applications that incorporate tables
derived from the results of learning image data into indices produced by the
EFR DataBlade.
Excalibur Face Recognition SDK
The Excalibur Face Recognition SDK, provides an API for indexing, searching and
retrieving face images. Components of the Face SDK are embedded within the EFR
DataBlade. Additionally, specific Face Recognition feature extraction algorithms
are included for functions such as face and eye location in addition to the face
indexing and retrieval.
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