STRATEGIC MARKETING AGREEMENT
Between
LANDIS & GYR (EUROPE) CORP.
And
INNOVATIVE TECH SYSTEMS, INC.
STRATEGIC MARKETING AGREEMENT
THIS AGREEMENT is entered by and between:
Landis & Gyr (Europe) Corp.
Gubelstrasse 22
CH-6301 Zug
Switzerland
(hereinafter referred to as "Landis & Gyr")
and
Innovative Tech Systems, Inc.
444 Jacksonville Road, Suite 200
Warminster, Pennsylvania 18974
(hereinafter referred to an "Innovative Tech")
WHEREAS, Innovative Tech is the owner of certain application Software products,
listed herein in Exhibit A, and is in the business of developing, producing,
marketing and distributing Software under the trade name SPAN-FM for Windows,
and
WHEREAS, Landis & Gyr wishes to market and distribute the Software produced by
Innovative Tech, and
WHEREAS, Landis & Gyr is prepared to market and distribute the Software to its
customers and Innovative Tech provides authorization to Landis & Gyr to market
and distribute the Software listed herein in Exhibit A, and agree to be
mutually bound by the terms and conditions of this Strategic Marketing
Agreement, hereinafter called Agreement.
WITNESSETH:
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES
CONTAINED HEREIN, LANDIS & GYR AND INNOVATIVE TECH DO HEREBY AGREE AS FOLLOWS:
1 DEFINITIONS
1.1 The term "Software" shall include the Software Interface
described in 1.7 and shall mean the object code versions of the Innovative Tech
software described in Exhibit A and shall include any modifications or
improvements thereof made by Innovative Tech and the enhancements as defined
under 1.6, and any other materials which are provided for use in connection
with said object code.
1.2 The term "Software Source Code" shall mean the human-readable
version of the Software, including without limitation, associated flowcharts,
algorithms, comments and other written instructions and technical documentation.
1.3 The term "use" shall include, without limitation, copying any portion
of the Software, including copying into a computer, or transmitting any portion
of the Software, including transmission to a computer for processing of the
instructions or statements contained therein.
1.4 The term "End User License" shall mean an agreement, in writing,
between Innovative Tech and the "End User", containing the terms set forth in
Exhibit B hereto.
1.5 The term "End User" shall mean any person or entity who has entered
into an "End User License" with Innovative Tech.
1.6 The term "Enhancements" shall mean performing the functions and/or
changes which shall be mutually agreed in Specification Document.
1.7 The term "Interface Link" shall mean the link commonly designed by
Innovative Tech and Landis & Gyr to facilitate exchange of data between the
Software and the Landis & Gyr software application products.
The Interface Link consists of two parts, one integrated and developed by
Innovative Tech into the Software owned by Innovative Tech, which will be known
as the "Software Interface", another integrated and developed by Landis & Gyr
into the software application products owned by Landis & Gyr, which will be
known as the "Application Interface".
1.8 The term "Specification Document" shall mean a written document which
contains the design, functional and technical specifications for the Software
and Documentation.
1.9 The term "Documentation" shall mean any human readable materials, and
any modifications and additions thereto, provided with, or available for, the
Software for its implementation, operation, and maintenance, such as
installation guides, tutorials, reference guide, technical and/or user manuals,
and release notes. The Documentation available when this Agreement comes into
force are listed in Exhibit F "Documentation".
1.10 The term "Version" shall mean the highest level of a software
product. New versions contain major additional or improved functionality and/or
performance (often denoted as the first number of X.X.X. used to identify the
current software level).
1.11 The term "Release" shall mean a modification to a Version of a
software product (often denoted as the second number of X.X.X used to identify
the current software level).
1.12 The term "Revision" shall mean a defect correction (bug fix) for
maintenance purposes and minor functional enhancements (often denoted as the
last number of X.X.X used to identify the current software level).
1.13 The term "Upgrade" shall mean a change to an End User License to
permit greater capacity operation, e.g. on a higher control process unit group
or with a greater number of users.
1.14 The term "Update" shall mean any and all Revisions, Releases and
Versions of the Software and Documentation, as the context may require.
2. OWNERSHIP OF SOFTWARE AND OF APPLICATION INTERFACE
2.1 Landis & Gyr acknowledges and agrees that:
(a) Innovative Tech reserves for itself all proprietary rights in
the Software and all designs, engineering details and other data pertaining to
the Software. Such proprietary rights shall be reserved to and owned by
Innovative Tech. Landis & Gyr shall not obtain any proprietary rights in the
Software and agrees to hold the Software subject to such reservations.
(b) All writings or works of authorship developed by Innovative Tech
in the course of performing services for Landis & Gyr hereunder, shall not be
"works for hire" and Innovative Tech shall own all rights, title and interest
in such writings or works of authorship, including all rights of patent,
copyright, trade secret or other proprietary rights throughout the world. If
any such writings or works of authorship are deemed to be "works for hire" by
operation of law, then this Agreement shall constitute an irrevocable
assignment to Innovative Tech of all of Landis & Gyr's right, title and
interest in any such writings or works of authorship.
(c) The Software is comprised of Innovative Tech's trade secrets and
proprietary information; and
(d) Landis & Gyr will not lend, sell, lease, hypothecate, or
otherwise dispose of the Software except as expressly authorized by this
Agreement.
2.2 Innovative Tech acknowledges and agrees that:
(a) Landis & Gyr reserves for itself all proprietary rights in the
Application Interface and all designs, engineering details and other data
pertaining to the Application Interface. Such proprietary rights in the
Application Interface shall be reserved to and owned by Landis & Gyr. Innovative
Tech shall not obtain any proprietary rights in the Application Interface and
agrees to hold the Application Interface subject to such reservations.
(b) The Application Interface is comprised of Landis & Gyr's trade
secrets and proprietary information; and
(c) Innovative Tech will not lend, sell, lease, hypothecate, or
otherwise dispose of the Application Interface except as expressly authorized
by Landis & Gyr.
3 LICENSE
3.1 Innovative Tech grants Landis & Gyr the non-exclusive right to market
and distribute the Software as an independent product or bundled with other
products provided to End Users. The bundling of the Software with any other
products shall not excuse or diminish any license prices required to be paid to
Innovative Tech nor
imply the granting of any rights to Landis & Gyr or any End User beyond those
specifically set forth herein.
3.2 Landis & Gyr shall offer under its own name the Software for sale
only and not for lease or rental. Landis & Gyr shall not represent itself as
the manufacturer of the Software and shall not relabel, remark, or otherwise
affix any labels or devices upon the Software or materials which obscure the
trademark or other identification of Innovative Tech. However, Landis & Gyr
shall have the right to affix a phrase similar to "Distributed by Landis & Gyr", including the Landis & Gyr logo [Landis & Gyr logo] on the packaging.
Landis & Gyr shall be responsible for all changes associated with the affixing
of any language or logo to any Software or materials.
3.3 Landis & Gyr agrees that Innovative Tech's name, trademark and
copyright information, shall be included on all copies of the Software, both in
machine readable form and on all Documentation related thereto.
3.4 Landis & Gyr assures Innovative Tech that it shall abide by and fully
comply with all export regulations both foreign and domestic.
3.5 Landis & Gyr shall have the right to translate the Software and
Documentation into languages other than English. Innovative Tech shall support
Landis & Gyr in such translations as described in Paragraph 8.5.2. The ownership
of the Software and of the Documentation stay with Innovative Tech. Innovative
Tech does not get the rights to distribute the translation of the Software and
Documentation done and paid by Landis & Gyr except as expressly authorized by
Landis & Gyr. However Landis & Gyr recognizes that Innovative Tech may have the
Software and Documentation translated at Innovative Tech's own expenses at any
time and distribute such translations without any restrictions.
3.6 Innovative Tech will provide Landis & Gyr with up to 200 (two
hundred) copies of versions of the Software and Documentation for internal
demonstration purposes ("Demonstration License"). Innovative Tech will charge
Landis & Gyr 200.00 USD (two hundred) per Demonstration License to help cover
the costs of the Demonstration License. This Demonstration License will be a
fully working single-user version of the Software and of the Documentation.
Landis & Gyr will be required to purchase AutoCAD R13 for Windows as this will
not be supplied with the Demonstration License. The license price for
Demonstration License in excess of two hundred copies shall be negotiated at
the time of purchase. However all Software purchased for Landis & Gyr's own
business use shall require the license price to Innovative Tech as in
accordance with Exhibit A.
4 LICENSE PRICES AND REPORTS
4.1 Landis & Gyr agrees to pay to Innovative Tech a license price for
each End User License distributed. This license price shall be in accordance
with Exhibit A.
4.2 A license price is not payable for the transfer of the Software from
one End User to another End User within the same organization, provided the
first End User does not retain any portion of the Software after such transfer.
Additionally, a
license price is not payable for the transfer of the Software from one host to
a second host provided that no portion of the Software remains with the first
host and the second host is property licensed.
4.3 The End User will be granted a license price free right to move the
Software from one host to another within a Local Area Network (LAN) within the
same organization. Landis & Gyr agrees to provide the End User with the same
mechanisms to monitor usage and to verify compliance with existing purchase
agreements as it provides relating to its own licensed software products.
4.4 The license prices referred to in paragraph 4.1 hereto do not include
any taxes or duties, and any such taxes or duties shall be assumed and paid for
by Landis & Gyr. If Innovative Tech shall pay such taxes or duties, Landis & Gyr
shall reimburse Innovative Tech within thirty (30) days of receiving a written
request that it do so. Innovative Tech's federal, state and local income and
tangible property taxes, if any, shall remain the sole responsibility of
Innovative Tech.
4.5 Innovative Tech shall invoice Landis & Gyr upon the shipment of any
Software order. Landis & Gyr shall remit payment in US Funds drawn on a US Bank
within thirty (30) days after receipt of a proper invoice, but not earlier than
within thirty (30) days after receipt of the Software and Documentation.
4.6 Landis & Gyr agrees that it shall maintain complete, clear and
accurate records of each End User License distributed. Within thirty (30) days
after the end of each quarterly period during which this Agreement is in effect,
which periods end on March 31st, June 30th, September 30th and December 31st,
Landis & Gyr shall provide Innovative Tech a statement, certified by an
authorized representative of Landis & Gyr, setting forth the number of End User
Licenses distributed during the quarter, along with the names, addresses,
telephone numbers and point of contact for each End User.
4.7 Innovative Tech shall have the right to audit Landis & Gyr's records
pertaining to the statement provided to Innovative Tech. All audits must be
conducted during Landis & Gyr's regular business hours, and prior to an audit,
Innovative Tech must have given thirty (30) days advance written notice. The
right of audit shall be limited to once per calendar year and shall not cover
records over two (2) years old. Prior to the start of an audit, Innovative Tech
personnel must sign a non-disclosure agreement to be provided by Landis & Gyr.
During the audit, Innovative Tech personnel shall be provided reasonable access
to both Landis & Gyr's records and personnel.
5 ENHANCEMENTS AND TRAINING
5.1 The Enhancements include, but are not limited to functionality that is
currently found in Landis & Gyr's DOS VISONIK(R) MMS product. Innovative Tech
and Landis & Gyr will mutually agree to the Specification Document.
5.2 Innovative Tech shall be responsible for accomplishing the
Enhancements effort. During the Enhancements effort, Landis & Gyr shall provide
Innovative Tech with a reasonable level of technical support.
5.3 During the Enhancements effort and upon reasonable notice,
Innovative Tech shall send at least one (1) of its training personnel to Landis
& Gyr's office in Zug, Switzerland to present training classes on the Software
as detailed in Exhibit A herein. Landis & Gyr shall be responsible for
providing adequate classroom space and the required equipment. Innovative Tech
shall provide training personnel knowledgeable in the Software. The training
dates and length of training shall be as mutually agreed between the parties.
Landis & Gyr shall reimburse Innovative Tech for out of pocket expenses,
including but not limited to air fare, lodging and meal expenses for Innovative
Tech's personnel attending such training sessions.
6 ACCEPTANCE
6.1 Enhancements shall be considered complete when the Software
executives in accordance with the Specification Document. The parties will
jointly cooperate to create a Specification Document. The scheduled date for
completion of the Enhancements shall be September 30, 1996.
6.2 Upon receipt of the Software, including any enhanced Software,
Landis & Gyr shall evaluate whether such Software executes in accordance with
the Specification Document. Landis & Gyr shall accept or reject such Software,
in writing, within twenty (20) business days after receipt of such software
("the Acceptance Period"). If Landis & Gyr fails to a accept or reject such
Software in writing within the Acceptance Period, the Software shall be deemed
to be accepted by Landis & Gyr. If Landis & Gyr rejects any software within the
Acceptance period, Landis & Gyr shall identify in writing and in detail the
basis for the rejection.
6.3 If the Software is deemed unacceptable to Landis & Gyr in
accordance herewith, Innovative Tech shall exercise its best efforts to correct
all non-conformities and to redeliver the corrected Software to Landis & Gyr
within thirty (30) business days of a rejection in conformance with this
Agreement.
6.4 Upon acceptance of the Software, Landis & Gyr shall provide
Innovative Tech with a written Acceptance Certification in the form attached
hereto as Exhibit C. If Landis & Gyr does not reject the Software in writing
within the Acceptance Period, Landis & Gyr shall provide Innovative Tech with a
written Acceptance Certification for the Software upon written request by
Innovative Tech.
6.5 In the event that Innovative Tech fails, during Enhancements,
to deliver the Software to Landis & Gyr which executes in accordance with the
Specification Document, after three (3) attempts to correct the same non
conformity, Landis & Gyr may at its option terminate this Agreement. In the
event of any such election to terminate, Landis & Gyr shall have no right to
use or retain, and shall return to Innovative Tech, all Software and
Deliverables defined in Paragraph 8.1 hereof, and/or portions thereof
(including any and all copies).
7 END USERS
Landis & Gyr agrees to take all reasonable steps to enforce the provisions of
each End User License. In the event Innovative Tech requests legal action be
initiated against any End User for breach of the End User License, and Landis & Gyr declines to initiate or continue such action, Landis & Gyr shall, upon
Innovative Tech's request, and at Innovative Tech's expense, take all steps
deemed necessary as mutually agreed by Innovative Tech and Landis & Gyr to
permit Innovative Tech to initiate and/or prosecute the action including,
without limitation, to assign the cause of action to Innovative Tech or permit
Innovative Tech to prosecute the action.
8 DOCUMENTATION AND TRANSLATION
8.1 Deliverables
Innovative Tech shall deliver to Landis & Gyr all Documentation for the
Software, including subsequent documents and revisions, in human readable form
and one (1) set of Documentation in the format specified in 8.5 below.
8.2 Reference Materials for End User Licenses
Innovative Tech shall produce End User reference materials describing how
End User shall use the Software. All End User Software and user manuals shall be
shipped by Innovative Tech to Landis & Gyr for distribution to the End User.
Landis & Gyr shall be responsible for all shipping costs, customs fees or any
other costs associated with the shipment of the Software to Landis & Gyr,
including any costs resulting from Landis & Gyr directed changes to End User
reference materials.
8.3 Reproduction of Promotional Material
Landis & Gyr shall translate promotional material, in whole or in part,
into languages other than English. Innovative Tech hereby grants Landis & Gyr
the right to modify and/or reproduce promotional material and to use such
material to further Landis & Gyr's marketing efforts. Innovative Tech shall
review and approve any Landis & Gyr generated changes to Innovative Tech's
materials. The right of approval shall be for a period of fifteen (15) working
days, and if Landis & Gyr has not received a written response within fifteen
(15) working days, the revised materials shall be deemed acceptable. Landis & Gyr shall be responsible for all charges associated with Landis & Gyr directed
changes to promotional material or packaging.
8.4 Translation of Documentation and Software
Landis & Gyr shall translate at its own costs all Documentation and
Software, in whole or in part, into languages other than English. Landis & Gyr
shall provide all translations in electronics version so that Innovative Tech
may proceed with documentation production.
8.5 Documentation Specifications
8.5.1 Innovative Tech shall provide a complete list of documents as
specified in Exhibit F.
8.5.2 Landis & Gyr shall be provided document files in Microsoft Word
format, Version 6.0 or later as applicable.
9 NON-DISCLOSURE
By virtue of this Agreement, each party may have access to information of
the other party which is considered confidential and proprietary. For
convenience, all such information will be called "Confidential Information."
Confidential Information shall include the source code, source code
materials, and all other information, documentation, designs, concepts,
inventions, trade secrets, know-how, private processes, customer lists or other
materials provided by either party in written or other tangible form and clearly
marked as proprietary or confidential. Notwithstanding the foregoing,
Confidential Information shall not include information which a) is at the time
of disclosure to the receiving party in the public domain or subsequently
becomes part of the public domain without a breach of its confidentiality
obligations hereunder by the receiving party; b) was in the receiving party's
lawful possession prior to the disclosure and had not been subject to
limitations on disclosure; c) is lawfully disclosed to the receiving party by a
third party without any obligation of secrecy to the disclosing party, of which
the receiving party is aware.
The parties agree, both during the term of this Agreement and for a period
of five (5) years after termination or expiration of this Agreement for any
reason, that all Confidential Information owned or legally controlled or used by
one party and disclosed to the other party shall remain solely the property of
the disclosing party (and shall thereafter remain solely the property of the
disclosing party), and its confidentiality shall be maintained and protected
by the other party with the same effort used to protect its own confidential
information. Except to the extent required by this Agreement, both parties agree
not to duplicate in any manner the other's Confidential Information for any
purpose other than the implementation of this Agreement.
In the event that one of the parties, or anyone to whom Confidential
Information is disclosed pursuant to this Agreement is or becomes legally
required or compelled to disclose any of the Confidential Information, such
party shall provide the other party with prompt notice so that such other party
may seek a protective order or other appropriate remedy and/or waive compliance
with the provisions of this Paragraph. In the event that such protective order
or other remedy is not sought or obtained or in the event that the other party
waives compliance with the provisions of this Paragraph, the compelled party
will furnish only that portion of the Confidential Information which it is
legally required to disclose and will seek to obtain reliable assurance that
confidential treatment will be accorded the Confidential Information.
During the term of this Agreement it is not the intent of Landis & Gyr to
independently develop or acquire software within the Computer Integrated
Facilities Management (CIFM) industry which is functionally similar to the
Software. In the event Landis & Gyr does elect to develop its own software or to
obtain software through the undertaking of an agreement with a third party,
Landis & Gyr shall notify Innovative Tech at the inception of its decision to
develop or acquire similar software and Innovative Tech shall then have the
right, to be exercised by written notice to Landis & Gyr within ninety (90) days
from the receipt of such notice, to terminate this
Agreement in which event all marketing and distribution license prices shall
continue as provided in this Agreement, but the parties shall otherwise treat
this Agreement and handle existing customers in the same manner as described
under Paragraph 14.1 and 14.6
Results of benchmark tests may not be disclosed unless Innovative Tech
consents to such disclosure in writing.
Nothing provided in this Agreement shall prohibit Innovative Tech from
selling any End User any products of Innovative Tech.
Landis & Gyr and Innovative Tech shall not disclose the terms and
conditions of this Agreement; provided however, that either party may disclose
such terms and conditions (a) when required by law, and (b) to its professional
advisors and financial professionals. For news release or public announcements
regarding this Agreement, each party shall obtain consent from the other party
prior to publication. Such consent shall not be unreasonably withheld.
Landis & Gyr and Innovative Tech acknowledge that money damages would not
be a sufficient remedy for any breach of this Agreement and that the other
party shall be entitled to specific performance and injunctive relief as
remedies for any such breach in addition to all other remedies at law or equity.
10 MAINTENANCE AND SUPPORT
10.1 During the term of this Agreement, Landis & Gyr shall provide the
first line of support to End Users and this shall consist of the following:
(a) Entering into software maintenance contracts with Landis & Gyr's
End Users.
(b) Taking all initial support calls from Landis & Gyr's End Users.
(c) Consolidating problems/errors in the Software and providing same
to Innovative Tech.
(d) Providing all Revisions, patches and work-arounds to End Users
which shall be provided in advance by Innovative Tech.
(e) Providing Updates (i.e. Revisions, Releases and Versions) to End
Users under maintenance contract with Landis & Gyr.
(f) Where Updates (i.e. Revisions, Releases and Versions) are made
available as separately purchasable items, selling Updates to existing End
Users. Under this scenario, End Users will not necessarily be under a
maintenance contract.
10.2 Upon the issuance of a new Version, Landis & Gyr will be invoiced by
Innovative Tech a license price of 200.00 USD (two hundred) for each
Demonstration License as per 3.6 above.
10.3 End User Program Errors shall be handled as follows:
10.3.1 Upon Innovative Tech's receipt of an error reported by
an End User to Landis & Gyr's designated technical contact, and which cannot be
handled under paragraph 10.1 above, Innovative Tech shall take corrective
action so as to remedy the reported problems within the time schedule outlined
in 10.3.2
10.3.2 Innovative Tech shall respond to all requests for
service made by Landis & Gyr within four (4) hours following Landis & Gyr's
first call to Innovative Tech help-line, and Innovative Tech and Landis & Gyr
shall cooperate in the identification, verification and possible resolution of
problems with the Software. For any "Critical Error" reported by Landis & Gyr,
Innovative Tech shall either correct such Critical Error or supply Landis & Gyr
with a satisfactory work-around within five (5) business days. In any event,
all Critical Errors shall be corrected within ten (10) business days following
Landis & Gyr's first call to the Innovative Tech Help Line. For any
"Non-Critical Error" reported by Landis & Gyr, Innovative Tech shall correct
such Non-Critical Error in the future releases of such module. A "Critical
Error" shall mean any Error which materially interferes with the normal use and
operation of the Software. A "Non-Critical Error" shall mean any Error other
than a critical error.
10.4 It is intended that Landis & Gyr and Innovative Tech will work
within the framework of the Maintenance and Support guidelines. In the event
that an exceptional circumstance arises, the parties will discuss the
circumstances and mutually agree on the correct course of action to take.
Exceptions may include, but not be limited to, impossibility of Innovative Tech
to perform, severe impact on one of Landis & Gyr's major customers or potential
sales, or availability of a more efficient approach.
10.5 Innovative Tech agrees to provide support, in addition to that
specified herein, based upon Landis & Gyr's request, in a expeditious manner,
and at charges to be paid by Landis & Gyr which shall not exceed those
Innovative Tech charges its customers for similar services.
10.6 Landis & Gyr agrees to pay to Innovative Tech an annual
maintenance and support fee of seventeen (17) percent of the cumulative license
prices paid in accordance with Exhibit A. This fee will be applied to cover
labor costs incurred by Innovative Tech for performing second line support and
for providing product Updates to End Users at no additional charge. The
maintenance and support fee shall be payable on every anniversary date of this
Agreement.
11 WARRANTY
Innovative Tech warrants for a period of ninety (90) days from
acceptance by Landis & Gyr of the Software listed in Exhibit A that the
Software, when properly installed and used by Landis & Gyr and End Users, will
conform with the Specification Document in effect at the time the Software is
accepted by Landis & Gyr. This warranty shall be solely for the benefit of
Landis & Gyr, but shall be in addition to the warranty provided by Innovative
Tech to End User Licenses as set forth in the End User License Agreements in
Exhibit B.
12 PATENT OR COPYRIGHT INFRINGEMENT AND INDEMNITY
12.1 Innovative Tech will defend, indemnify and hold harmless Landis & Gyr
against a claim that the Software was created in part by violation of the
protected trade secret of another or infringe a patent or copyright and will pay
resulting costs, damages and attorney's fees provided that:
(a) Landis & Gyr notifies Innovative Tech within thirty (30) days of the
claim;
(b) Landis & Gyr cooperates with Innovative Tech in the defense; and
(c) Innovative Tech has sole control of the defense and all related
settlement negotiations.
12.2 If such claim occurs, or in Innovative Tech's opinion is likely to
occur, Landis & Gyr agrees to permit Innovative Tech, at its option and expense,
either to procure for Landis & Gyr the right to continue using the Software or
to replace or modify same so that it becomes noninfringing.
12.3 Innovative Tech shall have no obligation to defend Landis & Gyr or
pay costs, damages or attorneys' fees for any claim based upon use of other than
a current, unaltered Release of the Software if such infringement would have
been avoided by the use of a current, unaltered Release of the Software. Should
such infringement occur, Innovative Tech shall only be obliged to remedy the
infringing Software by replacing at their own costs the older Release with the
current Release. Innovative Tech shall have no obligation to defend Landis & Gyr or pay costs, damages or attorneys' fees for any claim which results from
negligence or breach of this Agreement by Landis & Gyr. The concept of
"comparative negligence" shall be used to allocate the parties liability based
on their relative responsibility for any infringement claim.
12.4 Innovative Tech represents and warrants it is not aware the Software
was created in part by violation of the protected trade secret of another or
that the Software infringes any patent or copyright.
13 TERM
This Agreement and the rights and obligations of the parties shall be valid
for a period of Seven (7) years, unless terminated under the provisions of
Paragraph 14 herein. Provided, however, that the provisions of Paragraph 9 shall
survive. The Agreement will continue on an annual basis thereafter unless One
Hundred and Twenty (120) days notice is given to terminate this Agreement by
either party prior to the annual renewal. All notices shall be given in
accordance with Paragraph 18.1.
14 TERMINATION
14.1 Upon termination of this Agreement, the parties shall create and
implement a phase-out plan which will facilitate continued service to End
Users. During the phase-out period Landis & Gyr and Innovative Tech shall draft
a mutually
agreed letter that describes the phase-out plan and Landis & Gyr shall notify
the existing End Users of the Software of the mutually agreed phase-out plan.
The End User Licenses existing at the time of termination of this Agreement
shall continue without limitation as stated in the End User License Agreement
in Exhibit B.
14.2 Mutual Consent - This Agreement may be terminated at any time by
written agreement executed by both parties.
14.3 Breach - If either party shall be in material breach of its
obligations herein and shall have failed or been unable to remedy such breach
within thirty (30) days after receipt of written notice from the other party
specifying such breach, said other party may terminate this Agreement by giving
written notice of termination, effective upon the date of its sending. If
Landis & Gyr fails to remedy any breach on its part occurring during 1996
within such thirty (30) day period, Landis & Gyr shall immediately pay to
Innovative Tech all non-refundable fees dues for the balance of Fiscal Year
1996, as described on Exhibit A. If one party fails to remedy a breach on its
part during the balance of the term after 1996, the other party shall be
entitled to pursue all legal or equitable remedies.
14.4 Bankruptcy - If a receiver is appointed over the whole or part of
the assets of either party, or if any petition is filed by or against either
party initiating any bankruptcy reorganization proceeding or if either party
makes an assignment for the benefit of creditors, or if any order is made or
resolution is adopted for the dissolution of either party (unless such order or
resolution is part of a scheme or recapitalization, merger or consolidation)
then such party shall immediately notify the other party of such event, and the
other party may terminate this Agreement by written notice thereof, effective
upon the date of its sending.
14.5 In the event of Innovative Tech becoming insolvent, or by its own
decision ceases to do business, or if Innovative Tech decides to stop marketing
and/or support of the Software, Innovative Tech shall deliver to Landis & Gyr
the current version of the Software Source Code as described in the Escrow
Agreement, Exhibit E herein, and any and all documentation related to such
Source Code (including without limitation, all programmers materials and
notes). If any of the events in the preceding sentence occur, Landis & Gyr
shall also have a continuing right to use the Source Code in order to license
and support the Software to Landis & Gyr's customers, in its original form or
as modified by Landis & Gyr, provided that Landis & Gyr pays to Innovative Tech
or the bankruptcy court or trustee, as applicable, the license prices set forth
as follows: The license price for the first year shall be 30% of List Price,
the second year shall be 25% of List Price, and each year thereafter shall be
20% of List Price.
14.6 In the event Landis & Gyr elects to develop software or enter into
a similar agreement which is functionally similar to this Agreement as
described in Paragraph 9 hereof, Innovative Tech shall be entitled to terminate
this Agreement as described in Paragraph 9 hereof.
14.7 Upon termination of this Agreement, or at the end of its term,
Landis & Gyr shall return to Innovative Tech or destroy any demonstration or
unpaid Software and all copies and portions thereof, in any form whatsoever,
including
drawings, writings, prints, documents and all materials, and shall erase from
all computer, electronic, or other storage devices or otherwise destroy all
images or copies of the Software and all portions thereof except as required to
provide continuing support of the then current End Users.
15 LIABILITY
THE WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS AGREEMENT ARE IN LIEU
OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). NEITHER
PARTY SHALL HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS
AGREEMENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES EVEN IF
IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Innovative Tech and Landis & Gyr agree that Innovative Tech's liability
shall be limited to actual direct damages proven by Landis & Gyr, not in excess
of the total amount of license prices, maintenance and support fees and other
remuneration paid and payable by Landis & Gyr to Innovative Tech under this
Agreement.
16 TERRITORY
Landis & Gyr shall be granted by this Agreement the non exclusive right to
market and distribute the Software in the territories identified in Exhibit D.
17 SOURCE CODE ESCROW
Innovative Tech has placed a copy of the Software's Source Code into escrow
subject to the terms of an Escrow Agreement by and between Landis & Gyr,
Innovative Tech and the Escrow Agent, which document shall govern the
maintenance and release of such Source Code. Innovative Tech agrees to update,
enhance, or otherwise modify such escrowed Source Code promptly upon its release
of a new version of the Software. A true and correct copy of the Escrow
Agreement is set forth in Exhibit E.
18 MISCELLANEOUS
18.1 All notices, requests and demands given to or made upon the parties
hereto shall, except as otherwise specified herein, be in writing and may be
personally delivered, certified mailed or faxed to the party at its address as
follows:
In the case of Innovative Tech: In the case of Landis & Gyr:
_______________________________ ____________________________
Innovative Tech Systems, Inc. Landis & Gyr (Europe) Corp.
444 Jacksonville Road, Suite 200 Gubelstrasse 22
Warminster, Pennsylvania 18974, USA CH-6301 Zug, Switzerland
Attention: Brad Chambers Attention: Dr. Gaetano D'Emma
Phone: +1 215 441 5600 Phone: +41 41 724 5577
Fax: +1 215 441 5733 Fax: +41 41 724 5618
Any party may, by notice hereunder to all parties, designate a changed
address for such party. Any notice, if mailed, properly addressed, postage
prepaid, registered or certified mail, return receipt or any fax with the
proper date, shall be deemed received.
18.2 The various headings in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement or any Paragraph or provision hereof. References in this Agreement to
any Paragraph are to the applicable Paragraph of this Agreement.
18.3 All covenants, stipulations and promises in this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors, and legal representatives. Neither party shall have the
right to assign or otherwise transfer this Agreement or any rights or
obligations hereunder without the express written consent of the other, such
consent not to be unreasonably withheld.
18.4 Each party hereby agrees to indemnify, defend and hold harmless
the other from and against any and all claim, damage, cost, loss or expense,
including reasonable attorney's fees which may arise, directly or indirectly,
from any breach by the indemnifying party of any covenant, representation or
warranty on the part of such party set forth in this Agreement.
18.5 This Agreement shall be construed under the law of the
Commonwealth of Pennsylvania. Further, the parties hereto agree that in
connection with any litigation brought under or in connection with this
Agreement, the sole jurisdiction and venue shall be in the United States
Federal Court for the Eastern District of Pennsylvania in Philadelphia,
Pennsylvania.
18.6 Wherever possible, each provision of this Agreement and each
related document shall be interpreted in such a manner as to be effective and
valid under applicable law. However, if any provision of this Agreement or any
related document shall be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or the
remaining provisions of this Agreement or such related document.
18.7 No failure on the part of either party to exercise any right,
power or privilege under this Agreement, or under any instrument executed
pursuant hereto, shall operate as a waiver. No single or partial exercise of any
right, power or privilege shall preclude any other, or further exercise of any
other right, power or privilege. All rights and remedies granted herein shall be
in addition to other rights and remedies to
which the parties may be entitled at law or in equity. No waiver of any of the
provisions hereof shall be effective unless in writing and signed by the party
charged with such waiver. No waiver shall be deemed a continuing waiver, or a
waiver in respect of any breach or default whether similar or different in
nature unless expressly so stated in writing.
18.8 This Agreement cannot be, and shall not be deemed or construed to
have been, modified, amended, rescinded, canceled or waived, in whole or in
part, except by a written instrument signed by the parties hereto.
18.9 Any dispute arising out of this Agreement or Amendments hereto which
cannot be settled by Innovative Tech and Landis & Gyr through friendly
negotiations shall be settled, at the option of either party by arbitration.
The arbitration shall be conducted under the rules and jurisdiction of the
American Arbitration Association in Philadelphia, Pennsylvania.
If arbitration is chosen to settle the dispute, the arbitration shall be
conducted by three arbitrators who are knowledgeable in the subject matter of
this Agreement. Innovative Tech and Landis & Gyr shall each choose one
arbitrator and the two arbitrators shall choose a third arbitrator. The third
arbitrator shall be an active attorney knowledgeable in the applicable laws of
contract, rules of evidence and rules of procedure. Should the two arbitrators
fail to agree upon a third arbitrator, the third arbitrator shall be chosen by
the American Arbitration Association. The arbitration shall be conducted in
accordance with the rules of the American Arbitration Association, except as
modified herein. The decision of the arbitration panel shall be final and
binding, and the award so rendered shall be entered in any court having
jurisdiction thereof. In the event of arbitration or litigation under or
arising out of this Agreement, the prevailing party in such arbitration or
litigation shall be awarded reasonable attorneys' fees incurred in connection
with such arbitration or litigation, including all matters related to such
dispute.
Pending final disposition of any dispute under this Agreement, Innovative
Tech shall, at the option of Landis & Gyr, proceed diligently with the
performance of this Agreement.
18.10 This Agreement supersedes all other quotations, proposals, prior
agreements or representations, oral or written and all other communications
between the parties related to the subject matter of this Agreement.
18.11 Neither party shall be liable for any failure to perform or observe
any of its obligations under this Agreement for as long as and to the extent
that such performance is prevented or hindered by any circumstances beyond its
reasonable control. By way of example and not limitation, such causes may
include acts of God or public enemies; labor disputes; acts of local, state, or
national governments or public agencies; utility or communications failure;
fire; flood; epidemics; riots; or strikes. The time for performance of any
right or obligation delays by such events will be postponed for a period equal
to the delay. The party wishing to claim relief by reason of any such
circumstances shall notify the other party in writing without delay on the
intervention and on the cessation thereof.
18.12 This Agreement may be executed in two counterparts, each and all of
which shall be deemed to be an original and all of which shall constitute
together one and the same Agreement. Each and every person named a party hereto
may execute this Agreement by signing any such counterpart. Both parties
acknowledge that they have read this Agreement, understand it, and agree to be
bound by its terms and conditions.
18.13 This Agreement shall be effective retroactively as per 1st of
February, 1996.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THIS AGREEMENT TO BE DULY
EXECUTED AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN.
LANDIS & GYR (EUROPE) CORP. INNOVATIVE TECH SYSTEMS, INC.
Date: 4 April 1996 Date: 4-11-96
------------------------ ------------------------
By: /s/ sig illegible By: /s/ William M. Thompson
-------------------------- --------------------------
Title: Vice-President Title: CEO
Commercial Building Services
By: /s/ sig illegible By:
-------------------------- --------------------------
Title: Product Development Manager Title:
Building Management Tools -----------------------
EXHIBIT A
LICENSE PRICE SCHEDULE AND ADDITIONAL TERMS
Standard License Software Pricing: (All pricing quoted herein is in US Dollars)
A. SPAN-FM Windows Workgroup: $5,000 Per License
SPAN-FM Maintenance Manager
SPAN-FM Materials Management
SPAN-FM Asset Management
SPAN-FM Lease Management
SPAN-FM Project Budgeting
SPAN-FM Space Analysis
SPAN-FM Winstack
B. SPAN-FM Cable Management Windows Workgroup $9,500 Per License
SPAN-FM Maintenance Manager
SPAN-FM Materials Management
SPAN-FM Asset Management
SPAN-FM Cable Management
SPAN-FM Lease Management
SPAN-FM Project Budgeting
SPAN-FM Space Analysis
SPAN-FM Winstack
C. SPAN-FM CAD Integrator $3,500 Per License
For informational purposes, our current Software license prices are described
herein above.
The Annual Revenue Commitment as discussed below is a non-refundable fee
that Landis & Gyr will remit to Innovative Tech Systems, Inc. as described in
the payment schedule listed herein. This Agreement will commence in February of
1996 and shall continue for the term outlined in Paragraph 13, or until
terminated by either of the parties. The Agreement may be extended upon mutual
consent of the parties.
The agreed upon breakdown of the Annual Revenue Commitment for Fiscal
1996 is as follows:
YEAR ONE - FISCAL 1996 (FEBRUARY TO SEPTEMBER 1996)
Landis & Gyr will pay to Innovative Tech Systems, Inc. a non-refundable
fee of 420,000.00 USD (four hundred twenty thousand) for the following:
1 300,000.00 USD (three hundred thousand) for the Enhancements.
2 60,000 USD (sixty thousand) for 10 weeks of product training for Landis
& Gyr's personnel. This training will provide Landis & Gyr personnel with the
required product and market knowledge to ensure success.
3 60,000 USD (sixty thousand) for 12 weeks of consultative services from
Innovative Tech to Landis & Gyr. This will include, but is not limited to
Specification Document, marketplace consulting services, and database
conversions.
4 Payment Schedule
(a) 300,000.00 USD as described in 1 above to be paid as follows:
1 150,000.00 USD - Upon signing Agreement
2 90,000.00 USD - Due May 31, 1996
3 60,000.00 USD - Due August 31, 1996
(b) 60,000.00 USD as described in 2 above to be paid as follows:
1 30,000.00 USD - Upon signing Agreement
2 30,000.00 USD - Due August 31, 1996
(c) 60,000.00 USD as described in 3 above to be paid as follows:
1 30,000.00 USD - Upon signing Agreement
2 30,000.00 USD - Due August 31, 1996
Landis & Gyr will retain 60% (sixty percent) of the agreed upon list
price as a marketing and distribution license price on all Software that is
sold by Landis & Gyr in the territory as set forth in Exhibit D. The marketing
and distribution license price will be based on an agreed upon product price
list for each individual country or region. Once the product price list for
each country has been determined, a fixed unit cost in US dollars will be
assigned for each End User License of SPAN-FM.
Landis & Gyr's input will be required in, but not limited to the
following areas: Specification Document, alpha and beta product testing,
product certification, and long term product development.
By utilizing the SPAN-FM Property Portfolio, Landis & Gyr will be able
to share data between the SPAN-FM Product Suite and the Consumption Control
product. A joint Specification Document will be created to path the integration
of these products. The level of effort for this integration shall be applied
against the Fiscal 1996 budget for consulting services.
Innovative Tech will work with Landis & Gyr to develop conversion
routines that will allow data currently residing in the VISONIK(R) MMS product
to be converted to SPAN-FM.
YEARS TWO THROUGH SEVEN - FISCAL 1997 THROUGH FISCAL 2002
In years two through seven, Landis & Gyr will retain 60% of the agreed
upon list price as a marketing and distribution license price on all Software
that is sold by Landis & Gyr.
ADDITIONAL TERMS
1 The fee for additional consulting services for 1996 shall be 1,000.00
USD/day (one thousand).
2 The fee for additional training services for 1996 shall be 1,200.00 USD
/day (one thousand two hundred).
3 The fee for additional programming services for 1996 shall be 1,000.00
USD/day (one thousand).
4 Landis & Gyr shall be responsible for all out-of-pocket expenses
including, air fare, lodging, meals and other related reasonable and
verifiable expenses.
5 Landis & Gyr shall be responsible for all shipping costs, custom fees,
duties or other related expenses or taxes required for the shipment of
Software or other Documentation or materials.
6 Landis & Gyr will be responsible for all costs associated with language
conversion with respect to Software, Documentation and promotional or
marketing literature.
7 Based on the Specification Document, additional resources may be
required by Landis & Gyr, and these resources may be purchased from
Innovative Tech in Fiscal 1996 and thereafter at the license prices
described above.
8 Innovative Tech reserves the right to adjust the fees for consulting,
programming, training and annual maintenance at the beginning of each
calendar year beginning in 1997; provided, however, that Innovative Tech
provides Landis & Gyr with a ninety (90) day notice of any fee increase.
EXHIBIT B
END USER LICENSE AGREEMENT
(Attached hereto)
SPAN-FM SOFTWARE LICENSE AGREEMENT
In consideration of the payment of a licensing fee paid by you when obtaining
this package, Innovative Tech Systems, Inc. (INNOVATIVE TECH) grants you (USER)
a nontransferable and nonexclusive license to use this software, including any
associated manuals or other documentation (together referred to herein as
SOFTWARE), under the following terms and conditions:
1. USER acknowledges that INNOVATIVE TECH holds all proprietary rights,
including copyright and trade secret, in the SOFTWARE and that neither title,
ownership, nor any rights other than the right to use the SOFTWARE as specified
herein shall pass to the USER.
2. USER may make one backup copy of the software for archival purposes only.
USER may only use the SOFTWARE on one microcomputer at a single time. USER may
not make additional copies of the SOFTWARE or disclose or otherwise make
available the SOFTWARE, in whole or in part, in any form to any third party.
USER may not modify, reverse engineer, decompile, or create derivative works
based upon the SOFTWARE.
3. INNOVATIVE TECH warrants to the USER that the medium upon which the SOFTWARE
is recorded is free from defects in materials and workmanship and that the
software, under normal use with the compatible hardware identified in the
software manual, will operate in conformance with the descriptions in the
associated manual. INNOVATIVE TECH'S LIABILITY AND THE USER'S SOLE REMEDY WITH
RESPECT TO THIS WARRANTY SHALL BE LIMITED TO THE CORRECTION OR REPLACEMENT OF
THE DEFECTIVE MEDIUM, WITHOUT ADDITIONAL CHARGE, FOR A PERIOD OF NINETY DAYS
FROM THE DATE OF USER LICENSING THE SOFTWARE. NO OTHER WARRANTIES, EXPRESS OR
IMPLIED, SHALL APPLY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL
INNOVATIVE TECH BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING
FROM OR IN CONNECTION WITH THE USE OF THE SOFTWARE. (SOME JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO ALL
USERS.)
4. This Agreement, the license granted herein, and the SOFTWARE itself may not
be assigned or transferred by the USER to any other party without the prior
written consent of INNOVATIVE TECH.
5. This Agreement is effective from the date on which you break the seal on
the package and shall remain in effect until or unless terminates by INNOVATIVE
TECH as provided herein. INNOVATIVE TECH may terminate this license if USER
fails to comply with any of the terms and conditions of the Agreement. Upon
termination as specified herein, USER shall promptly certify that the original
and any copies, in any form, of the SOFTWARE have been destroyed or returned to
INNOVATIVE TECH.
6. This Agreement constitutes the entire agreement and understanding between
INNOVATIVE TECH and the USER concerning the subject matter hereof. Any
representation, promise, modification, or amendment to this Agreement shall not
be binding upon either party unless in writing and signed on behalf of each duly
authorized representative. If any of the provisions, or portions thereof, of
this Agreement are found to be invalid by any court of competent jurisdiction,
the remaining provision shall continue to be valid and enforceable.
*SPAN-FM IS A PRODUCT OF: INNOVATIVE TECH SYSTEMS, INC.
444 JACKSONVILLE ROAD, SUITE 200
WARMINSTER, PA 18974
(215) 441-5600
EXHIBIT C
ACCEPTANCE CERTIFICATION
Landis & Gyr hereby gives notice to Innovative Tech pursuant to Section 6.4 of
the Agreement that the Software identified in Exhibit A for delivery on
______________ has been received and evaluated by Landis & Gyr and that such
Software is hereby accepted by Landis & Gyr.
The accepted Software is identified with particularity below:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________
LANDIS & GYR (EUROPE) CORP.
Date:_______________________
By:_________________________
Title:______________________
By:_________________________
Title:______________________
EXHIBIT D
TERRITORY DESIGNATION
In accordance with Paragraph 16 of this Agreement, Innovative Tech grants to
Landis & Gyr the non-exclusive right to market and distribute the Software in
the territories identified below.
The limitation on marketing and distribution rights shall be restricted to the
"Region Europe" of Landis & Gyr, i.e. Europe, Eastern Europe, Africa, Near,
Middle and Central East Asia.
EXHIBIT E
ESCROW AGREEMENT
(Attached Hereto)
ESCROW AGREEMENT
THIS AGREEMENT is made this 4th day of April, 1996, by and among ARCHER
& GREINER, a law firm with an address at 1 Centennial Square, Haddonfield, New
Jersey 08033 ("Escrow Agent"), INNOVATIVE TECH SYSTEMS, INC., ("Innovative
Tech") with its principal place of business at 444 Jacksonville Road, Suite
200, Warminster, Pennsylvania 18974 and LANDIS & GYR (EUROPE) CORP., with its
principal place of business located at Gubelstrasse 22, CH-6301, Zug,
Switzerland ("Landis & Gyr").
Intending to be legally bound, Escrow Agent, Landis & Gyr, and
Innovative Tech hereby agree as follows:
1 As used herein, the following have the indicated meaning:
"Code" means the source code for the Software, including all revisions,
improvements, enhancements, or updates so that all times the source code
corresponds with the Software in use by Landis & Gyr.
"Code Copy" means a copy of the Code.
"Mail" means registered or certified mail, return receipt requested,
postage prepaid.
"Mailing Date" means the date Escrow Agent sends Innovative Tech notice
by Mail that a request for Code Copy has been made by Landis & Gyr.
"Software" means the computer software product developed by Innovative
Tech that is the subject of the Strategic Marketing Agreement.
2 (a) Innovative Tech hereby deposits as its own costs with Escrow
Agent in escrow two Code Copies, receipt of which is acknowledged by Escrow
Agent. The Software is a trade secret and confidential information of
Innovative Tech. Escrow Agent shall not distribute or copy the Code Copies
other than as expressly permitted by this Agreement or at the written direction
of Innovative Tech.
(b) Escrow Agent shall not accept deposits of any documentation,
assets, or moneys other than as expressly specified by this Agreement.
3 Escrow Agent shall use reasonable care to assure that the Code Copies
are not damaged or destroyed. Escrow Agent need not provide any climatic
controls for the Code Copies.
4 If the Code is revised, Innovative Tech shall promptly deliver to
Escrow Agent two revised Code Copies and Escrow Agent shall return to
Innovative Tech the Code Copies previously deposited.
5 Landis & Gyr shall be entitled to a Code Copy in the event of
Innovative Tech becoming insolvent, or by its own decision ceases to do
business, or if Innovative Tech decides to stop marketing and/or support of the
Software. In the event that Landis & Gyr requests Escrow Agent to deliver a
Code Copy to it for any reason, Escrow Agent shall notify Innovative Tech by
Mail within five (5) days following
receipt of such written request. If Innovative Tech does not object by notice
to Escrow Agent within ten (10) days of the Mailing Date, Escrow Agent shall
deliver a Code Copy to Landis & Gyr. Escrow Agent shall at all times retain one
Code Copy in its possession. In the event Escrow Agent delivers a Code Copy to
Landis & Gyr pursuant to this Agreement, Escrow Agent shall request a
replacement Code Copy from Innovative Tech, and Innovative Tech shall promptly
deliver such replacement.
6 (a) In the event that Innovative Tech notifies Escrow Agent by Mail
within ten (10) days of the Mailing Date that it objects to Escrow Agent's
delivery of a Code Copy to Landis & Gyr, Escrow Agent shall not deliver such
Code Copy to Landis & Gyr until (i) a final and binding arbitration award, as
described, in Section 6(b), is entered authorizing Landis & Gyr to receive a
Code Copy or (ii) Innovative Tech withdraws its objection in writing.
(b) If Innovative Tech disputes the existence of any of the
conditions listed in Section 5 above upon which Landis & Gyr shall be entitled
to a Code Copy, then Landis & Gyr and Innovative Tech shall submit to the
jurisdiction of the American Arbitration Association (the "Association") to
resolve the dispute promptly and shall be prepared to commence a hearing before
a Board of Arbitrators (the "Board") in Philadelphia, Pennsylvania within five
(5) business days after delivery of Innovative Tech's objection to the Escrow
Agent. The Board shall consist of three (3) members of the Association, one (1)
of which shall be chosen by each party and one (1) of which shall be chosen by
the two (2) arbitrators chosen by the parties. The sole question before the
Board shall be whether or not there existed, at the time Landis & Gyr requested
Escrow Agent to deliver a Code Copy to it pursuant to Section 5 above, one or
more of the conditions specified in Section 5. Each party shall have two (2)
hours to present the reasons which justify its position. After each party has
presented its position, each party shall have an additional one (1) hour for
rebuttal or responding. The parties agree that the Board shall have either
authority to grant injunctive or other equitable relief and that the decision
of the Board shall be final and binding and shall be immediately delivered to
Landis & Gyr and Innovative Tech. If the Board finds that none of the
conditions specified in Section 5 above existed at the time of Landis & Gyr's
request to Escrow Agent, and that accordingly such request was not properly
given by Landis & Gyr, then Escrow Agent shall not deliver a Code Copy to
Landis & Gyr. All fees and charges by the Association shall be split equally
between them. The provisions for arbitration described above shall represent
the exclusive means for resolving a dispute arising from a request for delivery
of a Code Copy pursuant to Section 5, but shall not preclude either party from
instituting a legal action against the other party for performance of any other
obligations under this Agreement.
7 Landis & Gyr and Innovative Tech agree that the Code and any Code Copy
delivered to Landis & Gyr under the provisions of this Agreement shall
constitute confidential information of Innovative Tech and no proprietary
rights thereto shall be transferred to Landis & Gyr by this Agreement or by the
delivery of any Code Copy to Landis & Gyr pursuant to this Agreement except as
expressly provided herein. Landis & Gyr shall not make any disclosure of any
such confidential information to anyone except employees of Landis & Gyr or
third parties subject to Landis & Gyr's control, which third parties shall be
deemed to include any vendor performing outsourcing of facilities management
functions for Landis & Gyr; Landis & Gyr shall
make such disclosure only when reasonably necessary for the use and maintenance
of Landis & Gyr's facilities management system. Landis & Gyr shall
appropriately notify each such employee or third party to whom such disclosure
is made of the confidential and proprietary nature of such confidential
information, shall use reasonable efforts to ensure that the employees or third
party maintains and protects the confidentiality of the disclosed information,
and shall enter into a confidentiality agreement with each third party
confirming the confidentiality restrictions set forth herein. Landis & Gyr
agrees that these obligations will survive any termination of this Agreement,
In the event that the Code and any Code Copy is delivered to Landis & Gyr under
the provisions of this Agreement, then Landis & Gyr's license for the Software
shall immediately be amended to authorize Landis & Gyr or any vendor performing
outsourcing or facilities management functions for Landis & Gyr to develop
derivative works from or modify the Software and to reproduce and distribute
the same internally.
8 Escrow Agent may resign its duties hereunder upon not less than thirty
(30) days notice; in which case, Innovative Tech shall agree upon the identity
of a successor Escrow Agent, subject to the consent of Landis & Gyr, which
consent shall not be unreasonably withheld. Upon notice to Escrow Agent and
Landis & Gyr of the identity of the successor Escrow Agent, Escrow Agent shall
deliver the Code Copies to its successor on the effective date of its
resignation. If Innovative Tech has failed to designate a successor Escrow
Agent acceptable to Landis & Gyr before the effective date of the Escrow
Agent's resignation, Escrow Agent may, by notice to Innovative Tech and Landis
& Gyr, designate the successor Escrow Agent and deliver the Code Copies to such
successor on the effective date of the resignation. Any successor Escrow Agent
shall be bound by the terms of this Agreement.
9 (a) Each of Innovative Tech and Landis & Gyr, jointly and severally,
agrees to absolutely and irrevocably remise, release, and forever discharge
Escrow Agent from any and all actions, suits, payments, liabilities, claims and
demands relating in any way to the performance of its duties hereunder except
for such actions based on claims caused solely by the willful misconduct or
negligence of Escrow Agent.
(b) Each of Innovative Tech and Landis & Gyr, jointly and severally,
agrees to indemnify and hold harmless the Escrow Agent in respect of any
liability for taxes imposed on the Escrow Agent (other than taxes imposed on the
income of Escrow Agent) relating to the assets held by Escrow Agent pursuant to
this Agreement.
10 Each party shall promptly notify all other parties by Mail of any
change in its address listed above. Any correspondence or notifications to
such party pursuant to this Agreement shall thereafter be sent to such new
address by Mail.
11 This Agreement shall commence on the date hereof and shall terminate
upon one of the following conditions: mutual agreement between the Escrow Agent,
Innovative Tech and Landis & Gyr, upon delivery of the Source Code to Landis & Gyr, or when the Strategic Marketing Agreement is terminated.
12 This Agreement and the rights and obligations hereunder shall be
construed in accordance with and governed by the laws of the Commonwealth of
Pennsylvania.
13 This Agreement constitutes the entire understanding between parties hereto
and the parties shall not be bound by any agreements, understandings or
conditions respecting the subject matter hereof other than those expressly set
forth and stipulated in the Agreement.
14 This Agreement shall bind and inure to the benefit of the parties hereto
and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
Date: 4-11-96
----------------------------
ARCHER & GREINER
By:
----------------------------
INNOVATIVE TECH SYSTEMS, INC.
By: /s/ sig illegible
----------------------------
LANDIS & GYR (EUROPE) CORP.
Date: 4 April 1996
----------------------------
By: /s/ sig illegible
----------------------------
Title : Vice-President
Commercial Building Services
By: /s/ sig illegible
----------------------------
Title: Product Development Manager
Building Management Tools
EXHIBIT F
DOCUMENTATION
Installation manual
User manual
Application guides
Strategic Marketing Agreement - Landis & Gyr (Europe) Corp. and Innovative Tech Systems Inc.
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