Source Code Agreement
THIS SOURCE CODE AGREEMENT is made and entered into this 14th day of March, 1988, and as amended August 26, 1998 by and between MECHDATA CORPORATION hereinafter referred to as LICENSOR, and the EBS User Group Inc., hereinafter referred to as LICENSEE’S.
Recitals:
A. LICENSOR is a company engaged in, among other things,
the design and installation of computer systems and the furnishing
of related equipment and services.
B. LICENSOR has designed and created programmed modules
which are proprietary to it and which comprise the EBS
Next Generation System. The EBS Next Generation System
is modular in nature and is thereby capable
of performing distinct inventory, accounting, and
reporting functions.
C. In conjunction with the EBS Next Generation System,
LICENSOR sublicenses application computer
programs to be used in conjunction therewith.
D. On the terms and conditions set forth in the license agreement
executed by and between each respective member of the EBS
User Group Inc., and LICENSOR, LICENSEE’S license from
LICENSOR (i) a nonexclusive and nontransferable license to use
those proprietary computer programmed modules and features
designated in the License Agreement.
AGREEMENT
LICENSOR and LICENSEE’S hereby agree to the following provisions for access
to Source Code:
1.) SOURCE CODE
A. LICENSOR and LICENSEE’S agree that LICENSEE’S will
maintain a safe deposit box solely for the purpose of
containing source code on magnetic media, and
LICENSOR will provide to LICENSEE’S for deposit into said
safe deposit box, the latest version of the source code for
the software which LICENSEE’S are licensing, including
modifications made to said software. LICENSEE’S
agree to bear any and all costs for establishing and
maintaining the aforementioned safe deposit box,
including the cost of renting a safe deposit box.
2.) ACCESS TO SOURCE CODE
A. LICENSOR hereby agrees that it shall have no right to access said
source code, other than the rights to enforce revocation of the
License granted in said License Agreements, as for more fully
described in paragraphs regarding revocation in the License
Agreements. LICENSOR shall be sent the prior version of source
code, by LICENSEE’S , after each successor version shall have been
deposited in said safe deposit box by an authorized representative
of LICENSEE’S.
B. If at any time during the term of this agreement, LICENSOR were to
become insolvent or cease business operations, LICENSEE’S would
have to indisputably verify such cessation, and if so verified,
then the LICENSEE’S would be permitted to take possession of
source code.
C. If at any time during the term of this agreement, LICENSOR or its
assignees, were to completely cease making available the
software support and maintenance defined herein to LICENSEE’S,
the LICENSEE’S would be permitted to take possession of source
code.
D. At No time will LICENSEE’S allow access to said source code to
any member or previous member of the EBS User Group Inc.,
whose license to the EBS Next Generation proprietary software
has been revoked pursuant to the provisions of each respective
License Agreement by and between the respective member
member of the EBS User Group Inc., and LICENSOR.
3.) UPDATES TO SOURCE CODE
Licensor agrees to provide to LICENSEE’S, for the sole purpose
of replacement of the old version, a new version of source code,
including all modifications and enhancements licensed by
LICENSEE’S and agrees to make such replacement once each
calendar year, upon LICENSEE’S written request, or at the time
of a nontrivial source code enhancement, upon LICENSEE’S
written request. LICENSEE’S agree to incur all costs and tape
media charges related to the replacement of an old version
with a new version, including any charges imposed by said
bank, shipping charges, tape media charges and time and
materials incurred by LICENSOR at its standard hourly rates.
4.) USE OF SOURCE CODE
LICENSEE’S hereby agree that if it takes possession of said
source code under the terms and conditions contained herein,
the code shall be intended and made available for LICENSEE’S
use only, and shall not be disclosed to anyone for
whom LICENSEE’S shall not first have obtained a signed
non-disclosure agreement, and that no rights shall be given
or assigned by such access to resell, disclose or reuse said
source code in other installations. Said source code shall
be deemed a part of the system, as defined in the respective
License Agreement, and to be subject to the terms and
conditions of the License Agreements.
5.) WARRANTY
Any and all warranties of LICENSOR hereunder with respect to
the object code, or any other part of the System, shall be
rendered null and void automatically if LICENSEE’S take
possession of said source code, pursuant to the terms of
this Agreement.
6.) TERM
LICENSOR hereby agrees that should it notify LICENSEE’S of
LICENSOR’S intent to terminate the respective License
Agreements, except as provided in paragraphs of revocation
in said License Agreements, Licensee’s shall continue to have
the right to access source code, in accordance with the terms
and conditions herein.
7.) GENERAL PROVISIONS
A.) The term “Source Code Agreement” means this Source
Code Agreement and any future amendments or
modifications thereto.
B.) The term ”License Agreement” means the respective License
Agreements executed by and between each individual member
of the EBS User Group Inc. and Licensor and any future
amendments or modifications thereto.
C.) This Source Code Agreement and the rights and obligations
hereunder may not be assigned without the written consent
of the other party, unless a party merges with or transfers
substantially all of its business assets to another corporation
and such successor corporation is legally capable of
performing and assumes in writing the obligations of the party
it succeeds.
D.) If any of the provisions or portions of this Source Code
Agreement are invalid under any applicable statute or rule of
law they are to that extent to be deemed omitted.
E.) This Source Code Agreement does not constitute either party
as the agent or legal representative of the other for any purpose
whatsoever. Neither party is granted any express or implied
right or authority by the other party to assume or create any
obligation or responsibility in behalf of or in the name of the
other party or to bind the other party in any manner or thing
whatsoever.
F.) The failure of either party at any time to require performance
by the other party of any provision hereof will not affect in any
way the full right to require such performance at any time
thereafter. The waiver by either party of a breach of any
provisions herein will not be taken or held by the other party
to be a waiver of the provision itself unless such a waiver
is in writing.
G.) The validity interpretation, and performance of this Source
Code Agreement will be controlled by and construed by the
laws of the State of Texas.
H.) Any notice, request, demand, or other communication required
or permitted hereunder will be given in writing, communication
charges prepaid, via Registered U.S. Mail, to the party to be
notified. All such communications will be deemed given when
received. The addresses for the parties for the purposes of such
communications are:
LICENSOR: MECHDATA CORPORATION
5700 NORTHWEST CENTRAL DR.
SUITE200
HOUSTON, TEXAS77092
ATTN: WILLIAM H. JONES
PRESIDENT
LICENSEE’S: EBS USER GROUP INC.
1401 2nd AVENUE
DES MOINES, IA50314
ATTN: BRUCE BOWMAN
TREASURER
(i) THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS
READ THIS SOURCE CODE AGREEMENT, UNDERSTANDS
IT, AND AGREES TO BE BOUND BY ITS TERMS.
THE PARTIES FURTHER AGREE THAT THE SOURCE CODE
AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT
OF THE AGREEMENT BETWEEN THE PARTIES RELATING TO
THE SUBJECT MATTER THEREOF, AND SUPERSEDES ALL
PRIOR OR CONTEMPORANEOUS PROPOSALS, ORAL OR
WRITTEN, UNDERSTANDINGS, REPRESENTATIONS,
CONDITIONS, WARRANTIES, COVENANTS, AND ALL OTHER
COMMUNICATIONS BETWEEN THE PARTIES RELATING TO
THE SUBJECT MATTER OF THIS SOURCE CODE AGREEMENT,
AND THAT THIS SOURCE CODE AGREEMENT MAY NOT BE
EXPLAINED OR SUPPLEMENTED BY COURSE OF DEALINGS
BETWEEN THE PARTIES OR USAGE OF TRADE.
Executed as of the day and year first above written.
LICENSOR: MECHDATA CORPORATION
BY:_________________________
LICENSEE: EBS USER GROUP, INC.
BY:_________________________ PRESIDENT
BY:_________________________ VICE PRESIDENT
BY:_________________________ TREASURER
| 
