Technology License Agreement - Logility Inc. and American Software Inc.
TECHNOLOGY LICENSE AGREEMENT
LOGILITY, INC. - AMERICAN SOFTWARE, INC.
THIS TECHNOLOGY LICENSE AGREEMENT (the "Agreement") is made as of August 1,
1997, by and between LOGILITY, INC., a Georgia corporation ("Logility") and
AMERICAN SOFTWARE, INC., a Georgia corporation, for itself and its Affiliate
companies (hereinafter collectively, "American Software").
WHEREAS, Logility is the owner of certain technology related to Logility's
Value Chain Planning and Execution Solutions software products, and American
Software desires a license to use such technology in order to maintain and
support end-users of such software products, and Logility is willing to grant
such a license to American Software, upon the terms and conditions set forth
herein.
NOW THEREFORE, in consideration of the foregoing premises, the mutual
covenants set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Logility and American
Software hereby agree as follows:
1. DEFINITIONS. All capitalized terms used herein and not otherwise
defined shall have the following meanings:
"AFFILIATE" of a person shall mean a Person that directly, or
indirectly through one or more intermediaries, controls, is controlled by
or is under common control with such person. "Control" (and, with
correlative meanings, the terms "controlled by" and "under common control
with") shall mean the possession of the power to direct or cause the
direction of the management and policies of such person, whether through
the ownership of voting stock, by contract or otherwise. In the case of a
corporation, "control" shall mean, among other things, the direct or
indirect ownership of more than 50% of its outstanding voting stock. For
purposes of this Agreement, American Software shall not be deemed an
Affiliate of Logility, and Logility shall not be deemed an Affiliate of
American Software.
"END-USER" shall mean a Person that licenses or has licensed one or
more Products from American Software.
"IMPROVEMENTS" shall have the meaning ascribed to such term in Section
2.3 hereof.
"PERSON" shall mean any individual, partnership, corporation, firm,
association, unincorporated organization, joint venture, trust, limited
liability company or other entity.
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"PRODUCTS" shall mean, collectively, all Logility's Value Chain
Planning and Execution Solutions, including WarehousePRO, Transportation
Management, and Transportation Planning software products now or hereafter
owned by Logility.
"PROPRIETARY RIGHTS" shall mean all patent rights, copyrights, trade
secret rights, trademarks and similar rights.
"SOFTWARE TECHNOLOGY" shall mean all Technology used in connection
with the Products.
"TECHNOLOGY" shall mean public and nonpublic technical or other
information, inventions, trade secrets, know-how, processes, formulations,
concepts, ideas, data and testing results, experimental methods, and any
other written, printed or electronically stored materials.
"THIRD PARTY" shall mean any Person other than Logility, American
Software or an Affiliate of Logility or American Software.
2. GRANT OF LICENSES.
2.1. GRANT OF ROYALTY-FREE LICENSE. Subject to the terms and
conditions of this Agreement, Logility hereby grants to American Software a non-
exclusive, non-transferable (subject to Sections 2.2, 2.3 and 7.9) worldwide,
perpetual right and license under its Proprietary Rights to use, execute,
reproduce, display, modify and prepare Derivative Works of, the Products for the
limited purpose of maintaining and supporting End-Users of the Products. The
foregoing license shall be fully paid and royalty-free.
2.2. SUBLICENSE RIGHTS.
2.2.1. Subject to the terms and conditions of this Agreement,
American Software shall have the right to grant sublicenses of the rights
granted under Section 2.1 hereof to End-Users of the Products for the limited
purpose of maintaining and supporting such End-Users' use of the Products.
2.3 IMPROVEMENTS.
2.3.1 American Software and Logility shall each promptly
disclose to the other any and all enhancements and improvements which they make
or acquire in relation to the Products or, derivatives thereof ("Improvements");
provided, however, that the foregoing shall not require either party to disclose
to the other any Improvement which it makes specifically for a Third Party and
which such party is restricted from disclosing to the other party pursuant to
the terms of its agreement with the Third Party.
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2.3.2 Subject to the terms and conditions of this Agreement,
American Software hereby grants to Logility in respect of Improvements made by
American Software, and Logility hereby grants to American Software in respect of
Improvements made by Logility, a non-exclusive, non-transferable, fully paid,
worldwide, perpetual right and license under their respective Proprietary
Rights, to use, execute, reproduce, display, modify and prepare Derivative Works
of said Improvements.
2.3.3 Subject to the terms and conditions of this Agreement,
each party shall have the right to grant sublicenses of the rights granted to it
under Section 2.3.2 hereof to (i) its respective Affiliates, and (ii) End-Users
of Products incorporating the Improvements without prior permission of the other
party.
3. TERM AND TERMINATION.
3.1 TERM. This Agreement shall be effective as of the Effective
Date and shall continue in full force and effect indefinitely, unless terminated
earlier as provided in Section 3.2 hereof.
3.2 EARLY TERMINATION.
3.2.1 EARLY TERMINATION BY LOGILITY. Logility shall have the
right to terminate this Agreement upon written notice of termination to American
Software in the event that:
(a) At any time, American Software or its Affiliates fail to perform
or observe, or otherwise breach any of American Software's material obligations
under this Agreement, and such failure or breach continues unremedied for a
period of ninety (90) days after receipt by American Software of written notice
thereof from Logility or, in the event that such failure or breach is not
capable of cure within ninety (90) days, for such longer period of time as
American Software is vigorously pursuing such cure in good faith; or
(b) American Software shall either (i) seek the liquidation,
reorganization, dissolution or winding-up of itself or the composition or
readjustment of its debts, (ii) apply for or consent to the appointment of, or
the taking possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its assets, (iii) make a general assignment
for the benefit of its creditors, (iv) commence a voluntary case under the
bankruptcy code, (v) file a petition seeking to take advantage of any other law
relating to bankruptcy, reorganization, winding-up or composition or
readjustment of debts, or (vi) adopt any resolution of its board of directors or
stockholders for the purpose of effecting any of the foregoing.
3.2.2 EARLY TERMINATION BY AMERICAN SOFTWARE. American
Software shall have the right to terminate this Agreement, with or without
cause, at any time on sixty (60) days' prior written notice to Logility.
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3.3 EFFECTS OF TERMINATION.
3.3.1 If either party terminates this Agreement pursuant to
Section 3.2. hereof:
(a) all rights to the Technology, Products and Improvements
licensed by Logility to American Software hereunder shall revert solely to
Logility, and all rights to American Software's Improvements licensed by
American Software to Logility hereunder shall revert solely to American
Software;
(b) any sublicense by either party to End-Users previously
granted shall survive such termination;
(c) any sublicense of American Software's rights hereunder that
has been granted to an Affiliate may be terminated or maintained directly
between Logility and the Affiliate, as Logility shall elect in its sole
discretion; and
(d) each party's obligations, liabilities and indemnities
hereunder in respect of the Products previously sold by such party, its
Affiliates or permitted sublicensees shall survive termination.
4. CONFIDENTIALITY
4.1. American Software and Logility each agrees that all Technology,
Improvements and other technical, business, and financial information it obtains
from the other party ("Proprietary Information") is the confidential property of
the disclosing party. Except as expressly allowed herein, each party will hold
the Proprietary Information of the other party in confidence and shall not use
or disclose such Proprietary Information. However, the foregoing confidentiality
obligation shall not apply to information which the receiving party can
document:
(a) is or has become readily publicly available without
restriction through no fault of the receiving party or its employees or
agents;
(b) is received without restriction from a third party lawfully
in possession of such information and lawfully empowered to disclose such
information;
(c) was rightfully in the possession of the receiving party
without restriction prior to its disclosure by the other party; or
(d) was independently developed by employees or consultants of
the receiving party without access to the Proprietary Information of the
other party.
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4.2. American Software and Logility each agrees that there is no
adequate remedy at law for a breach of Section 4.1 above and that such a breach
would irreparably harm the other and that the other party is entitled to
equitable relief (including, without limitations, injunctions) with respect to
any such breach or potential breach, in addition to any other remedies.
5. REPRESENTATIONS, WARRANTIES AND INDEMNITIES.
5.1. Logility represents and warrants to American Software that it
has the full power and authority to enter into this Agreement and grant all
licenses granted to American Software hereunder in respect of the Software
Technology and the Products.
5.2. American Software represents and warrants to Logility that it
has full power and authority to enter into this Agreement and will carry on its
obligations hereunder promptly and in good faith.
5.3. American Software and Logility each warrants to the other that
it shall have adequate rights and authority to license to the other any and all
Improvements described in Section 2.3 that it makes or acquires.
5.4 EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 5.1 AND 5.3 HEREOF,
LOGILITY MAKES NO WARRANTY WITH RESPECT TO ANY TECHNOLOGY, PRODUCT, SERVICE,
RIGHT OR OTHER SUBJECT MATTER OF THIS AGREEMENT, AND HEREBY DISCLAIMS WARRANTIES
OF MERCHANT-ABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH
RESPECT TO ANY AND ALL OF THE FOREGOING.
5.5. American Software and Logility shall each (the "Indemnifying
Party") indemnify the other (the "Indemnified Party") from awarded damages,
settlements, costs, (including but not limited to reasonable fees and
disbursements of counsel incurred by an Indemnified Party in any action or
proceeding between the Indemnified Party and the Indemnifying Party or between
an Indemnified Party and any third party or otherwise) and other out-of-pocket
expenses incurred in connection with a claim against the Indemnified Party based
on or relating to (i) any action or omission of the Indemnifying Party or its
agents or employees related to the obligations of the Indemnifying Party under
this Agreement, or (ii) any breach by the Indemnifying Party of its
representations and warranties hereunder; provided, however, that the foregoing
shall not apply (a) if the claim is found to be based upon the negligence,
recklessness or willful action or inaction of the Indemnified Party, or (b) if
the Indemnified Party fails to give the Indemnifying Party prompt notice of any
claim it receives and such failure materially prejudices the Indemnifying Party,
or (c) solely to the extent of the indemnification for reasonable legal fees and
disbursements of counsel of the Indemnified Party, unless the Indemnifying Party
is given the opportunity to control the defense of such action, or (d) unless
the Indemnifying Party is given the opportunity to approve any settlement, which
approval shall
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not be unreasonably withheld; and provided further that, except in the event of
a material conflict of interest, the Indemnifying Party shall not be liable for
separate attorney's fees of the Indemnified Party after assuming control of the
defense or settlement.
6. INCIDENTAL AND CONSEQUENTIAL DAMAGES. NEITHER PARTY WILL BE LIABLE
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UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY SUBJECT MATTER OF THIS
AGREEMENT.
7. GENERAL
7.1. In the event that any provision of this Agreement shall be
rendered invalid or otherwise unenforceable by any competent or judicial
government authority, such invalidity or unenforceability shall not effect the
validity or enforceability of any other provision of this Agreement, and the
invalid provision shall be deemed amended to the fullest extent allowable by
applicable law to effect the purposes of said provision.
7.2 Logility and American Software shall each be excused for any
failure or delay in performing any of their respective obligations under this
Agreement, if such delay or failure is caused by any act of God, accident,
explosion, fire, storm, riot, embargo, war, failure or delay of transportation,
shortage of or inability to obtain supplies, equipment, fuel or labor or any
other circumstance or event beyond the reasonable control of the party relying
upon such circumstance or event.
7.3. American Software and Logility each hereby agrees to comply with
all export laws and restrictions and regulations of the Department of Commerce
or other United States or foreign agency or authority, and not to knowingly
export, or allow the export or re-export of any Product, Technology or
Improvement, or any derivatives thereof in violation of any such restrictions,
laws or regulations, or, without all required licenses and authorizations, to
Afghanistan, the People's Republic of China or any Group Q, S, W, Y or Z country
specified in the then current Supplement No. I to Section 770 of the U.S. Export
Administration Regulations (or any successor supplement or regulations).
7.4. This Agreement and the Subsidiary Formation Agreement set forth
the entire agreement and understanding between the parties as to the subject
matter hereof and merges all prior understandings, discussions and negotiations
between them. Neither of the parties shall be bound by any conditions,
modifications, definitions, warranties, understandings or representations with
respect to such subject matter other than as expressly provided for herein
unless set forth in writing and signed by a proper and duly authorized
representative of each party to be bound thereby.
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7.5. All notices in connection with this Agreement shall be in
writing and shall be sent to the address given below or to such other address as
the parties may hereafter specify and shall be deemed given when received.
If to American Software: American Software, Inc.
470 East Paces Ferry Road, N.E.
Atlanta, Georgia 30305
Attention: Controller
If to Logility: Logility, Inc.
470 East Paces Ferry Road, N.E.
Atlanta, Georgia 30305
Attention: Chief Financial Officer
7.6. This Agreement shall be considered as having been entered into
in the State of Georgia and shall be construed and interpreted in accordance
with the laws of the State of Georgia.
7.7 Dispute Resolution.
7.7.1 In the event that any dispute arises between American
Software and Logility in connection with this Agreement, the representatives of
each party responsible for the subject matter of such dispute shall use good
faith efforts to resolve such dispute promptly. In the event that such dispute
cannot be resolved by the parties' representatives, the matter shall be
submitted to the parties' respective Chief Executive officers ("CEOs") for
resolution. In the event that the CEOs cannot reach resolution of the issue (an
"Unresolved Dispute"), then the matter shall be settled by binding arbitration
in accordance with the provisions of Section 7.7.2. hereof.
7.7.2 Any Unresolved Dispute, after the completion of the steps
set forth above, shall be settled at the election of either party, by final and
binding independent arbitration. All arbitrations pursuant to this Agreement
shall be conducted before the American Arbitration Association ("AAA") in
Atlanta, Georgia, U.S.A., and shall be carried out in accordance with the
Commercial Arbitration Rules of the AAA then in effect (the "Rules") and the
provisions of this Agreement. American Software and Logility shall each select
one arbitrator and a third arbitrator will be selected unanimously by the two
arbitrators selected by American Software and Logility. If the two arbitrators
selected by American Software and Logility are unable to select the third
arbitrator within ten (10) days of the appointment of the two arbitrators, the
parties consent to the selection of the third arbitrator by the AAA
administrator.
7.8 No waiver by either party, whether expressed or implied, of any
provision of this Agreement, or of any breach or default, shall constitute a
continuing waiver of such provision or of any other provision of this Agreement.
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7.9. This Agreement and the rights and obligations of the parties
under this Agreement may only be assigned or transferred with the prior written
consent of the other party, except with respect to assignments to an acquiror of
all or substantially all the assets, business or stock of a party.
7.10. Each of American Software and Logility hereby agrees to duly
execute and deliver, or cause to be duly executed and delivered, such further
instruments and to do and cause to be done such further acts and things,
including, without limitation, the filing of such additional assignments,
agreements, documents and instruments, that may be necessary or as the other
party hereto may at any time and from time to time reasonably request in
connection with this Agreement or to carry out more effectively the provisions
and purposes of, or to better assure and confirm unto such other party, its
rights and remedies under this Agreement.
7.11 The terms and provisions of this Agreement shall inure to the
benefit of, and be binding upon, American Software, Logility and their
respective successors and permitted assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
AMERICAN SOFTWARE, INC.
By: /s/ James C. Edenfield
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Name: James C. Edenfield
Title: President
LOGILITY, INC.
By: /s/ J. Michael Edenfield
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Name: J. Michael Edenfield
Title: President
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