EXHIBIT 10.17
SOFTWARE DEVELOPMENT AND
LICENSE AGREEMENT
This Agreement ("Agreement") is made and entered into as of this 31st
day of October, 2000 ("Effective Date") by and between Global Enterprise
Technology Solutions, LLC ("GETS") and Pegasus Solutions, Inc., a Delaware
corporation ("Licensee") (each a "Party" and together the "Parties.").
BACKGROUND
A. GETS is developing and has developed certain proprietary software
products that can be used to incorporate an Internet browser as a client and
operate as a centrally hosted service using Internet and intranet
communications and protocols which include CRS, PMS, POS and similar
hospitality-based functionality.
B. Licensee wishes to assist GETS in completing its development of such
software products, and GETS wishes to obtain such assistance from Licensee.
C. GETS wishes to grant to Licensee, and Licensee wishes to obtain from
GETS, a license to use GETS's software products on the terms and conditions
of this Agreement.
NOW, THEREFORE, in consideration of the promises, mutual covenants, and
agreements herein, the Parties hereto agree as follows:
1. DEFINITIONS
As used in this Agreement:
1.1 "Customer" means a third party that receives Services from Licensee.
1.2 "Deliverables" means the Software, Documentation, and other deliverables
to be provided by GETS as set forth in the Statement of Work.
1.3 "Development Period" means that period of time beginning on the
Effective Date and continuing until the later of (i) Licensee providing to
GETS written acceptance of all Deliverables under the Statement of Work as
described in Section 3.2; or (ii) five (5) years after the Effective Date.
1.4 "Documentation" means the written reference materials which GETS
furnishes to Licensee in connection with the Software or this Agreement.
1.5 "Escrow Agreement" means the escrow agreement in the form attached as
Exhibit A.
1.6 Intellectual Property Rights" means all rights in, to, or arising out
of: (i) any U.S., international or foreign patent or any application
therefor or any and all reissues, reexams, divisions, continuations,
continuations-in-part, renewals, invention certificates, invention
registrations, utility models, and extensions thereof; (ii) trade secrets;
(iii) trademarks, service marks and trade names, and all registrations and
applications therefore in the U.S. or any foreign country; (iv) copyrights,
copyright registrations, and applications therefor in the U.S. or any
foreign country, and all other rights corresponding thereto throughout the
world; or (iv) any other intellectual property or proprietary rights in the
Deliverables anywhere in the world.
<PAGE>
1.7 "Services" means the following services provided by Licensee to a third
party: Remote hosting of all functions supported by Software allowing
multiple customers to access applications to review, update, process and
report on data using Web browsers connected to a central data center by
employing Internet class technologies. Pegasus may charge for these
services on a transaction, rental, or lease basis. Pegasus will offer
sales, installation, training and support services to customers based on
their use of the Software.
1.8 "Site" means each physical location specified in Exhibit B that is under
Licensee's control. The Parties may from time to time mutually agree upon
amendments to Exhibit B to reflect additions and deletions of offices of
Licensee (but not affiliates) as appropriate.
1.9 "Software" means collectively the software applications, databases,
designs, code and documentation developed and used by GETS, including any
and all applications developed in Visual Basic, Visual C++, and Java and/or
any other programming language to develop software for uses incorporating an
Internet browser as a client and intended to be operated as a centrally
hosted service engine using Internet or intranet communications and
protocols which includes CRS, PMS, POS and similar hospitality-based
functionality. It is understood and agreed that GETS shall provide any
updates, improvements, enhancements or modifications to Licensee without
additional fees and/or additional terms and conditions in accordance with
Section 2.3 below. "Software" includes only those applications identified
on the Product Pipeline Project Requirement Analysis attached hereto as
Exhibit E, which may be modified from time to time upon mutual agreement of
the Parties.
1.10 "Source Materials" means (i) the source code for the Software; (ii) any
source code that implements any portion of the functionality embodied in any
of the foregoing; and (iii) any portion or other human perceivable versions
of any of the foregoing.
1.11 "Statement of Work" means the written statement of work for
completing development of the Software originally signed by both Parties in
the form attached as Exhibit C hereto, and as revised or supplemented in
accordance with Section 2.3.
1.12 "Technology" means any and all technology and technical information,
including technical data, inventions (whether or not patented or
patentable), designs, concepts, processes, algorithms, formulae, techniques,
invention disclosures, improvements, know-how, software, specifications,
data books, schematics, netlists, models, test programs, diagrams,
manufacturing requirements, drawings, works of authorship, masks, layouts,
rules and any other technical subject matter.
2. DEVELOPMENT
2.1 Project Managers. Each Party shall designate in writing one or more
project managers to manage and coordinate its participation and activities
in connection with the development of the Software. The initial project
managers for GETS shall be Ric Patrick, and the initial project manager for
Licensee shall be Karl Frandsen and Keith Cook. The project manager for
each Party may be replaced upon written notice thereof to the other Party.
<PAGE>
2.2 Review Meetings. Review meetings to discuss the progress of the Software
development will be scheduled at Licensee's facilities as mutually agreed by
the Parties. Such meetings shall be for information purposes only and shall
not be binding upon either Party unless the Parties otherwise mutually agree
in writing.
2.3 Statement of Work Changes. Licensee may request additions, enhancements,
deletions, and any other changes ("Changes"), including, but not limited to,
changes in the Software, schedule of work, personnel being used and the
priorities of development, to the Statement of Work at any time prior to the
end of the Development Period. All requested Changes shall be in writing.
GETS will notify Licensee if GETS believes that a requested Change may
materially affect its cost or schedule for performing the Software
development.
2.4 Software Development.
a) It is understood and agreed that GETS has not yet completed
development of the Software. Accordingly, subject to the terms and
conditions of this Agreement, each Party agrees to perform its respective
responsibilities, including meeting milestones, set forth in the Statement
of Work. Each Party will notify the other of any unanticipated issues that
it believes may result in delays or difficulty in complying with a delivery
milestone.
b) Subject to the terms and conditions of this Agreement, Licensee may
use the Software and the Documentation, provided by GETS, in accordance with
Section 4.1 below without charge during the Development Period. Licensee
acknowledges, however, that Software delivered to Licensee prior to the end
of the Development Period, and the Documentation therefor, may contain
defects and bugs.
2.5 Evaluation. Licensee shall provide feedback to GETS concerning the
functionality and performance of the Software from time to time as
reasonably requested by GETS, including identifying potential errors and
improvements.
2.6 Development Expenses. Licensee shall reimburse GETS for all reasonable
expenses ("Development Expenses") incurred in connection with the
development and testing of the Software hereunder prior to the end of the
Development Period, including actual payroll expenses, consulting services,
contract labor, software licenses, equipment requirements, and any other
expenses associated with the development of the Software pursuant to the
Agreement. GETS will pre-invoice Licensee monthly for any expenses incurred
that are within 110% of a budget (the "Budget") that has been approved by
Pegasus. For all expenses that exceed 110% of the amount provided therefor
in the Budget, GETS will obtain approval from Pegasus prior to invoicing.
GETS will continue to use the current cost analysis methodology as a basis
for providing the Budget for the Software and any Changes thereto. Upon
request of Licensee, GETS will provide Licensee with a copy of all
supporting documentation necessary to verify all Development Expenses.
2.7 Support of Existing GETS Customers. GETS shall remain responsible for
any and all support and expenses related to any GETS' customers existing
prior to the Effective date including, but not limited to, Starwood and Inn
Suites. Licensee has no obligations or responsibilities for any support of
and/or expenses related to GETS' customers that are using the Software prior
to the Effective Date.
<PAGE>
3. DELIVERY AND ACCEPTANCE/ESCROW
3.1 Delivery. The milestones for delivery to Licensee of the Deliverables
will be set forth in the Statement of Work.
3.2 Acceptance. After the Development Period with respect to a Statement of
Work, each Deliverable shall be accepted or rejected by Licensee in
accordance with the following (and each party agrees to cooperate with the
other party to facilitate the following procedure):
a) GETS will notify Licensee in writing when product development is
complete and each Deliverable is ready for acceptance testing.
b) Upon receipt of such notice, Licensee and GETS shall arrange a
meeting and meet at Licensee's Site and at such meeting GETS will
demonstrate the Deliverable on equipment reasonably suitable to test the
Deliverables for use in a real business environment and Licensee will
witness and may participate in such test. The meeting referred to in this
Section 3.2(b) shall occur within fifteen (15) days from the date of receipt
by Licensee of the notice that the Deliverable is ready for acceptance
testing or such shorter period to which the Parties may mutually agree in
writing. Such equipment shall be within the scope of the Statement of Work.
c) Prior to expiration of the initial 15-day evaluation period
described in Section 3.2(b), Licensee shall deliver to GETS either a written
certification that Licensee accepts the Deliverable or a written rejection
that includes a description of all Defects in the Deliverable. As used
herein, "Defect" means a specific failure of the Deliverable to conform in
all material respects, in the real business world environment, to an
objective requirement of the Statement of Work, which failure is identified
by Licensee during such initial evaluation period. Defect shall not include
any problems or failure to conform to the Statement of Work caused solely by
the equipment or other software of Licensee provided that such equipment and
other software are within the scope of the Statement of Work. The
Deliverables may be rejected only for Defects.
d) GETS shall have a reasonable period of time, not to exceed forty-
five (45) days, after receipt by GETS of the written description of Defects
in accordance with this Section 3.2 to remedy each Defect or to demonstrate
that no Defect is present. GETS shall use best efforts to do so; provided,
however, that Licensee shall use best efforts to provide promptly to GETS
the assistance and information requested by GETS in connection therewith,
including access to facilities and personnel as required to reproduce and
determine the cause of the Defect and to test any corrections implemented by
GETS. GETS will notify Licensee in writing when the Deliverable is ready to
be re-tested. During a period not to exceed fifteen (15) days from
Licensee's receipt of such notice, Licensee and GETS shall meet at
Licensee's Site to retest the Deliverable and at such meeting GETS will
demonstrate the Deliverable on Licensee's equipment and Licensee will
witness such test. Prior to the end of such 15-day re-evaluation period,
Licensee shall certify in writing to GETS that Licensee accepts the
Deliverable if, upon such retest, no Defects are produced during such
demonstration. Otherwise, Licensee shall deliver to GETS prior to the end
of such re-evaluation period a written rejection that includes a
description, in accordance with section 3.2(c), of all Defects that
occurred. The Parties will repeat the process set forth in this Section
3.2(d) after each retest unless the Deliverable is accepted or a Release
Condition occurs under Section 3.3 below.
<PAGE>
e) Each Deliverable shall be deemed accepted by Licensee to the extent
that GETS does not receive from Licensee written notice of Defects in
accordance with the foregoing prior to the end of the applicable evaluation
period. In the event that GETS's work on a Deliverable depends upon or is
affected by acceptance of another Deliverable and in the event of a delay in
accepting such other Deliverable, GETS's time for providing the first
Deliverable shall be extended by the period of the delay. Upon acceptance
or completion of all of the Deliverables by Licensee, each of GETS and
Licensee shall instruct the escrow agent to terminate the Escrow Agreement,
and Section 3.3. shall automatically terminate.
3.3 Escrow.
a) Deposit and Release Conditions. GETS will deposit the Source
Materials in escrow within three (3) days after the Parties enter into the
Escrow Agreement and payment of all escrow fees by Licensee. GETS will
deposit updated Source Materials in escrow, reflecting the then most recent
version of the Software, within ten (10) days after the end of each calendar
month during the Development Period. Licensee shall pay all fees arising
out of or in connection with the Escrow Agreement, and GETS shall have no
obligation to pay such fees. The release conditions for release of the
Deposit Materials under the Escrow Agreement (the "Release Conditions")
shall be GETS's receipt of Licensee's written election to obtain the release
of the Deposit Materials in accordance with Section 3.3(b) below and the
occurrence of either of the following (each of the following a "Default"):
(i) Licensee demonstrates that a Defect identified to GETS in
accordance with Section 3.2 has not been corrected as shown by
Licensee's second retest of the applicable Deliverable under Section
3.2(d) after GETS's notice under Section 3.2(a) that said Deliverable
is ready for acceptance testing;
(ii) GETS fails to provide a Deliverable (whether or not
conforming) to Licensee for retesting by the end of the time period
specified in Section 3.2(d) (as may be extended in accordance with
3.2(d)); or
(iii) GETS fails to deliver a conforming Deliverable to Licensee
for more than sixty (60) days after the mutually agreed upon milestone
for that Deliverable (extended by any extensions under Section 3.2(d)).
b) Release. Upon the occurrence of a Default, Licensee shall either
(i) request the release of the Source Materials; or (ii) waive the Default.
Licensee shall notify GETS in writing electing one of such options within
fifteen (15) days after the occurrence of the Default. In the event that
GETS does not receive such notice from Licensee within such fifteen (15) day
period, the Default shall be deemed waived. Upon waiver of a Default, each
Party shall be obligated to proceed under the terms of Section 3.2 of this
Agreement as if only one re-testing had been performed or otherwise as
mutually agreed in writing. Upon satisfaction of the Release Conditions,
Licensee's payment obligations under this Agreement that have not become due
by such time shall also terminate except to the extent the Parties otherwise
mutually agree in writing.
<PAGE>
c) Rights Upon Release. Subject to the terms and conditions of this
Agreement and upon proper release of the Source Materials to Licensee in
accordance with Section 3.3(b) and the Escrow Agreement, Licensee will have
an exclusive, royalty-free right to use the Source Materials internally to
the extent necessary to complete the development, or correct the Defects,
for which GETS was responsible in accordance with the Statement of Work.
Subject to the following, Licensee shall have the right to continue to use
such software solely in accordance with Sections 4.1.
4. GRANT OF RIGHTS
4.1 License. Subject to the terms and conditions of this Agreement, GETS
hereby grants to Licensee an exclusive right and license to use the
Software and the Documentation, for use in offering, selling, marketing and
otherwise providing Services to Customers; provided, however, that Licensee
acknowledges that Starwood Hotels and Resorts Worldwide, Inc. ("Starwood")
is currently using certain underlying technology and components which are
incorporated in the Software pursuant to a certain Software License and
Maintenance Agreement between Starwood and Enterprise Hospitality Solutions
Inc. (an affiliate of GETS), a copy of which has been provided to Licensee.
4.2 Right to Sublicense. Subject to the terms of this Agreement, GETS
hereby grants Licensee a nontransferable right to sublicense the Software
and the Documentation to subsidiaries, joint ventures or partnerships in
which Licensee has majority interest and/or Licensee's corporate accounts
or customers, provided that Licensee shall have each sublicensee execute
a Sublicense Agreement containing the terms specified on Exhibit D.
4.3 Lapse of Exclusivity. The License shall become a nonexclusive right
upon the occurrence of any of the following:
a) If Licensee fails to exercise any Option (as defined in that certain
Purchase Agreement dated as of October 30, 2000 by and among GETS, Licensee
and certain other signatories thereto and to which this Agreement is
attached); or
b) The failure by Licensee during the Development Period to deliver
amounts due under Section 2.6 for 30 days after delivery of notice from GETS
of such failure.
<PAGE>
4.4 Restrictions. Licensee shall not copy, distribute, reproduce, use,
display, allow access to, modify, adapt, translate or otherwise prepare
derivative works of the Source Materials, Software or other Confidential
Information of GETS except to the extent expressly authorized in this
Agreement. It is acknowledged and agreed that this Section 4 grants to
Licensee no right to modify, adapt or translate the Software, Source
Materials or Documentation other than as contemplated by Section 3.
Licensee shall not exercise its rights under this Agreement in any manner,
or take any other action, which adversely affects GETS's ownership and
rights in the Software, Source Materials, or other Confidential Information
of GETS. The rights and licenses of Licensee in this Section 4 may be
exercised using only the most recent version of such Documentation, Software
and Confidential Information provided by GETS to Licensee. Licensee shall
promptly notify GETS in writing of any unauthorized use of, or any claim or
proceeding involving, such Software, Source Materials, or other Confidential
Information. Software that is not in the possession of Licensee when used by
Licensee to provide the Services to a Customer shall be retrieved or
destroyed by Licensee reasonably promptly upon termination of the applicable
Services for that Customer. Each Customer receiving a copy of the Software,
or owning hardware on which the Server software is installed, shall be
contractually prohibited from reverse engineering, interrogating,
reproducing, decompiling, distributing or otherwise reducing to human
perceivable form such Software except to the extent that such restrictions
are prohibited by applicable law. Licensee shall provide GETS with access
to Licensee's facilities, at reasonable times and upon reasonable notice, to
verify Licensee's compliance with the terms of this Agreement. ALL RIGHTS
NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO GETS.
4.5 Ownership. Licensee acknowledges that the licenses granted
pursuant to this Agreement do not provide Licensee with title or ownership
of the Software, Source Materials, Documentation, other Deliverables, or
copies thereof, but only a right of limited use. Except to the extent
otherwise mutually agreed in writing, GETS shall own and retain all right,
title and interest, including all Intellectual Property Rights, in and to
the Software, Source Materials, Documentation, other Deliverables, all other
works of authorship created by GETS, and copies thereof, free and clear of
any and all Licensee Intellectual Property Rights, and Licensee shall not
have or obtain any right, title or interest therein or thereto. Except for
GETS's rights in accordance with this Agreement, including its underlying
Intellectual Property Rights, and as otherwise provided in Section 3.3(c),
Licensee shall own all right, title and interest in and to the software that
Licensee creates in accordance with the terms and conditions of this
Agreement.
5. FEES; OTHER PAYMENTS
5.1 Development Expenses. In consideration for the rights granted
hereunder, Licensee shall pay GETS an amount equal to the Development
Expenses incurred by GETS prior to the end of the Development Period and
associated with the period following the date of GETS's previous invoice to
Licensee, all in accordance with Section 2.6. Invoices will be rendered to
Licensee's accounts payable department at Licensee's address set forth
above. Licensee shall pay GETS in full the amounts set forth on each invoice
submitted to Licensee by GETS hereunder within thirty (30) days of the date
thereof subject to any credits and rights of offset.
<PAGE>
5.2 Royalty for Non-Exclusive License. In the event that this License
becomes non-exclusive pursuant to Section 4.3, then Licensee shall pay GETS
20% of all revenue generated from the Software by Licensee, less any
Development Expenses paid by Licensee to GETS pursuant to Sections 2.6 and
5.1.
5.3 Taxes. The amounts payable under this Agreement are payable in full
without reduction for any taxes, duties or tariffs; provided that GETS will
pay any sales and other taxes imposed on such payments or on the development
and/or delivery by GETS of the Software to Licensee in accordance with this
Agreement. Licensee shall be responsible for all other sales, use, value-
added, withholding and other taxes imposed by any federal, state or local
governmental entity as a result of the exercise by Licensee of its rights
under this Agreement, excluding U.S taxes based upon GETS's income, and in
the event GETS becomes legally obligated to pay or collect any taxes
referred to in this sentence (other than U.S. taxes based upon GETS's
income), the appropriate amount shall be invoiced to and paid by Licensee
unless Licensee provides GETS with a valid tax exemption certificate
authorized by the appropriate taxing authority.
5.4 U.S. Dollars. All fees quoted and payments made hereunder shall be in
U.S. Dollars.
5.5 Late Payment. Any payments due under this Agreement which are not paid
when due shall bear interest to the extent permitted by applicable law at
the prime rate as reported by the Chase Manhattan Bank, New York, New York,
on the date such payment is due, plus an additional one and one half percent
(1.5%) per annum, calculated on the number of days such payment is
delinquent. This Section 5.5 shall in no way limit any other remedies
available to any party.
6. WARRANTY, DISCLAIMER AND INDEMNIFICATION
6.1 Warranty. GETS warrants that (a) at the time of delivery the media on
which the Software is furnished shall be free from material defects in
materials and workmanship and (b) the Software will function in all material
respects in accordance with the Documentation relating to the Software.
6.2 Fixes and Subsequent Releases. GETS will promptly provide to Licensee
without charge during the term of this Agreement, minor corrections and bug
fixes for the Software that GETS designates as such and makes generally
available to its other licensees of the Software, if any, without charge.
GETS will also provide all subsequent releases, versions, updates,
enhancements and other modifications during the term of this Agreement.
6.3 Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN
SECTION 6.1, THE SOFTWARE, DOCUMENTATION AND OTHER DELIVERABLES ARE PROVIDED
"AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY,
OR OTHERWISE, AND GETS SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES,
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY,
NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
<PAGE>
6.4 GETS Indemnification. GETS shall indemnify, hold harmless, and at
Licensee's option defend, Licensee from and against all losses, expenses,
costs, damages and liability (including reasonable attorneys' fees) arising
out of, relating to or in connection with any breach by GETS of any
representations or warranties or covenants of GETS contained herein, other
than for the matters set forth in the immediately following sentence. In the
event the Software, Documentation or any Deliverable infringes, or if GETS
or Licensee reasonably believes is likely to infringe, any intellectual
property or proprietary right of a third party, Licensee agrees to permit
GETS or a third party at GETS's expense and option, to (i) procure for
Licensee the right to continue using such Software, Documentation or
Deliverable; (ii) replace or modify the Software, Documentation, or
Deliverable or part thereof in such a way that it is non-infringing; or if
each of options (i) and (ii) will require GETS to incur costs and expenses,
including without limitation engineering time, license fees and royalties,
greater than the amount GETS has actually received from Licensee for any
reason, then GETS may terminate this Agreement and refund to Licensee any
amounts paid by Licensee to GETS. THE FOREGOING STATES THE ENTIRE LIABILITY
AND OBLIGATIONS OF GETS AND THE EXCLUSIVE REMEDY OF LICENSEE, WITH RESPECT
TO ALL ALLEGED OR ACTUAL INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS,
TRADEMARKS, OR OTHER INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE,
DOCUMENTATION OR OTHER DELIVERABLES.
6.5 Licensee Indemnification. Licensee shall indemnify, hold harmless, and
at GETS's option defend, GETS from and against all losses, expenses, costs,
damages and liability (including reasonable attorneys' fees) arising out of,
relating to or any third party action or claim brought or threatened against
GETS in connection with any breach by Licensee of any representations or
warranties or covenants of Licensee contained herein.
6.6 Licensee's Customers. Licensee shall be solely responsible for, and
GETS shall have no obligation to honor, any representations or warranties
that Licensee provides to Customers with respect to the Software, except for
the express warranties provided by GETS to Licensee in Section 6.1. If
there are any obligations to provide support and/or maintenance to
Customers, Licensee shall be solely responsible for providing such support
and maintenance. Licensee shall indemnify, hold harmless, and at GETS's
option defend, GETS from and against all losses, expenses, costs, damages
and liability (including reasonable attorneys' fees) arising from any third
party action or claim brought or threatened against GETS in connection with
(i) any representations or warranties to Customers, express, implied,
statutory, or otherwise; or (ii) the use by Licensee of the Software or the
Source Materials. The foregoing indemnification by Licensee shall not apply
to claims to the extent caused directly by an actual breach by GETS of its
warranties set forth in Section 6.1 or to the extent caused by the
infringement of a third party's Intellectual Property Rights caused solely
by the Software in the form provided by GETS.
7. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY
LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR
ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND UNDER ANY
THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE.
<PAGE>
8. CONFIDENTIALITY
8.1 Definition. Confidential Information means any information disclosed by
one Party (the "Disclosing Party") to the other Party (the "Receiving
Party") under this Agreement, either directly or indirectly, in writing,
orally or by inspection of tangible objects, which is designated as
"Confidential," "Proprietary" or some similar designation. Information
communicated orally shall be considered Confidential Information only if
such information is confirmed as being Confidential in a writing delivered
to the Receiving Party before, or within thirty (30) days after, the initial
disclosure. Subject to the foregoing, Confidential Information shall
include information relating to the financial performance, strategy,
customers, or suppliers of each Party. Confidential Information of GETS
shall include the Statement of Work, the Source Materials, the
Documentation, and all information, software and materials to the extent
based upon, derived from or developed with reference to any of the
foregoing. Confidential Information shall not, however, include any
information which (i) was publicly known and made generally available in the
public domain prior to the time of disclosure by the Disclosing Party; (ii)
becomes publicly known and made generally available after disclosure by the
Disclosing Party to the Receiving Party through no action or inaction of the
Receiving Party; (iii) is already in the possession of the Receiving Party
at the time of disclosure by the Disclosing Party as shown by the Receiving
Party's files and records immediately prior to the time of disclosure; (iv)
is obtained by the Receiving Party from a third party without restriction
and without a breach of such third party's obligations of confidentiality;
or (v) is independently developed by the Receiving Party without use of or
reference to the Confidential Information of the Disclosing Party, as shown
by documents and other competent evidence in the Receiving Party's
possession.
8.2 Obligations. The Receiving Party shall not use the Confidential
Information of the Disclosing Party in any manner except for use as
expressly authorized in this Agreement. The Receiving Party shall maintain
the Confidential Information of the Disclosing Party in strict confidence
and shall not disclose the Confidential Information of the Disclosing Party
to any third party without the Disclosing Party's prior written consent.
Without limiting the foregoing, the Receiving Party shall use at least the
same procedures and degree of care that it uses to protect its own
confidential information of like importance, and in no event less than
reasonable care. In the event that an order or requirement of a court,
administrative agency, or other governmental body requires Confidential
Information of the Disclosing Party be disclosed, the Receiving Party shall
provide prompt advance notice thereof to the Disclosing Party reasonably
sufficient to enable the Disclosing Party to seek a protective order and
otherwise prevent public disclosure of such information, provided, however,
that if such order is not quashed, limited or extended, Receiving Party may
thereafter comply with such order as required by applicable law.
<PAGE>
8.3 Additional Source Material Protections. Each copy and each derivative
work of the Source Materials shall be marked as the confidential and
proprietary property of GETS to which access is restricted, and shall be
kept and used securely solely at the Site. Source Materials shall not be
placed on a computer that is connected to a network that may be accessed by
persons other than Licensee's employees. Licensee shall not disclose the
Source Materials to any third party without GETS' prior written consent and
without obtaining such third party's written agreement to comply with terms
and conditions governing the disclosure and use thereof that are at least as
protective of GETS as the terms and conditions of this Agreement. Licensee
will use its best efforts to ensure that all persons to whom the Source
Materials have been disclosed abide by the terms of Licensee's
confidentiality obligations hereunder. Licensee shall keep records of all
persons who have access to the Source Materials, any software in human
perceivable form that uses, is based upon, derived from, or relates to the
Source Materials or other Confidential Information of GETS and such other
records as reasonably necessary to enable GETS to verify compliance with
this Agreement. At GETS' request, Licensee agrees to provide such records
to GETS for review; provided, however, that GETS will use such records
solely for purposes of tracking and protecting its technology and
Confidential Information.
8.4 Notification of Security Breach. Licensee agrees to notify GETS
promptly in the event of any breach of its security, under conditions in
which it would appear that the trade secrets contained in the Source
Materials or Documentation were prejudiced or exposed to loss. Licensee
shall, upon request of GETS, take all other reasonable steps necessary to
recover any compromised trade secrets disclosed to or placed in the
possession of Licensee by virtue of this Agreement. The cost of taking such
steps shall be borne solely by Licensee, except to the extent GETS caused
the breach.
8.5 Injunctive Relief. The Parties acknowledge that any breach of any
obligations with respect to confidentiality, or use or disclosure of
Confidential Information hereunder would cause irreparable harm to the
Disclosing Party for which monetary damages would be inadequate, and,
accordingly, the Receiving Party agrees that in the event of such breach or
threatened breach, the Disclosing Party shall be entitled to obtain
equitable relief to protect its interest therein, including but not limited
to preliminary, and permanent injunctive relief. The foregoing shall not
limit any other remedies the parties may have at law or equity.
9. TERM AND TERMINATION
9.1 Term. The term of this Agreement shall commence on the Effective Date
and shall continue in force unless terminated a Party materially breaches
any term or condition of this Agreement and fails to cure that breach within
sixty (60) days after receiving written notice of the breach, in which event
the non-breaching Party may terminate this Agreement on written notice at
any time following the end of such sixty (60) day period.
9.2 Survival. Sections 4.4, 4.5, 5.1, 6.2, 6.3, 6.4, 6.5, 6.6, 7, 8, 9.2,
and 10.6 shall survive the termination of this Agreement for any reason.
<PAGE>
9.3 Effect of Termination. Upon termination of this Agreement for any
reason, the rights and licenses granted to Licensee under this Agreement
shall immediately terminate. Upon such termination Licensee shall
immediately destroy or return to GETS all tangible items in its possession
or control which are proprietary to GETS, including the Software, Source
Materials, the other Confidential Information of GETS, and all copies and
portions thereof. Within thirty (30) days after termination of this
Agreement, Licensee shall certify to GETS in writing that it has complied
with the foregoing requirements.
10. GENERAL
10.1 Export Regulations. It is understood that GETS and the information and
technology disclosed and licensed hereunder may be subject to regulation by
the United States government. Licensee and its Customers shall comply with
all export laws, regulations and orders of the United States government and
all foreign agencies and authorities, and shall not disclose, export, or
allow the export or re-export of any product, technology or information in
violation thereof.
10.2 Dispute Resolution. Any dispute relating to or arising from this
Agreement shall be resolved by arbitration under the Commercial Rules of the
American Arbitration Association. Unless otherwise agreed by the Parties,
arbitration will take place in Dallas County, Texas, U.S.A. Any court having
jurisdiction over the matter may enter judgment on the award of the
arbitrator(s). Service of a petition to confirm the arbitration award may
be made by First Class mail or by commercial express mail, to the attorney
for the party or, if unrepresented, to the party at the last known business
address.
10.3 Assignment. Licensee may not assign any of its rights or delegate any
of its obligations under this Agreement, whether by operation of law or
otherwise, without the express written consent of GETS, except that Licensee
may assign this Agreement without the consent of GETS in the event of a
merger, acquisition or sale of substantially all of its assets. Subject to
the foregoing, this Agreement will be binding upon and will inure to the
benefit of the Parties, the successors and permitted assigns.
10.4 Waiver and Amendment. No modification, amendment or waiver of any
provision of this Agreement shall be effective unless in writing and signed
by the Party to be charged. No failure or delay by either Party in
exercising any right, power, or remedy under this Agreement, except as
specifically provided herein, shall operate as a waiver of any such right,
power or remedy. The waiver by a party of any default, breach or
noncompliance under this Agreement shall not operate as a waiver of such
party's rights under this Agreement in respect of any continuing or
subsequent default, breach or non-compliance (whether of the same or any
other nature).
10.5 Section Headings, Language and Construction. The section headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement. All
references in this Agreement to "Sections" and "Exhibits" refer to the
sections and exhibits of this Agreement. The words "hereof," "herein" and
"hereunder" and other words of similar import refer to this Agreement as a
whole and not to any subdivision contained in this Agreement. The words
"include" and "including" when used herein are not exclusive and mean
"include, without limitation" and "including, without limitation,"
respectively.
<PAGE>
10.6 Governing Law; Jurisdiction. This Agreement shall be governed by the
laws of the State of Texas, excluding conflict of laws provisions. All
disputes arising out of or related to this Agreement shall be subject to the
exclusive jurisdiction and venue of the federal and state courts in Dallas
County, Texas, and the parties consent to the personal and exclusive
jurisdiction of such courts.
10.7 Notices. All notices, demands or consents required or permitted under
this Agreement shall be in writing. Notice shall be considered effective on
the earlier of actual receipt or (a) the day following transmission if sent
by facsimile followed by written confirmation by registered overnight
carrier or certified United States mail; or (b) one (1) day after posting
when sent by registered private overnight carrier (e.g., DHL, Federal
Express, etc.); or (c) five (5) days after posting when sent by certified
United States mail. Notice shall be sent to each of GETS and Licensee at
the addresses set forth on the signature page of this Agreement, or at such
other address as notified to the other in accordance with this Section 10.7
from time to time.
10.8 Independent Contractors. The parties are independent contractors.
Neither party shall be deemed to be an employee, agent, partner or legal
representative of the other for any purpose and neither shall have any
right, power or authority to create any obligation or responsibility on
behalf of the other.
10.9 Severability. If, for any reason, a court or other body of competent
jurisdiction finds, or the Parties mutually believe, any provision of this
Agreement, or portion thereof, to be invalid or unenforceable, such
provision will be enforced to the maximum extent permissible and the
remainder of this Agreement will continue in full force and effect if the
resulting Agreement effects the original intent of the Parties. The Parties
shall negotiate in good faith toward an enforceable substitute provision
that most nearly achieves the intent and economic effect of the invalid or
unenforceable provision.
10.10 Entire Agreement. This Agreement constitutes the final, complete
and exclusive agreement between the Parties, and supersedes all prior and
contemporaneous agreements with respect to the subject matter hereof. All
different or additional terms or conditions in any Licensee purchase order
or other document issued by Licensee shall be null and void. In the event
of a conflict between this Agreement and the Statement of Work, this
Agreement shall govern unless the Parties expressly agree to the contrary.
10.11 Force Majeure. Except for Licensee's obligations to pay GETS
hereunder, neither Party shall be liable to the other Party for any failure
or delay in performance caused by (i) acts of God, war, fire, flood, riot,
power failure, embargo, governmental acts, man-made or natural disasters,
earthquakes, or strike; or (ii) any other reason where failure to perform is
beyond the reasonable control (not including internal matters that are
solely within the non-performing party's power to control; provided that
such internal matters solely within the non-performing party's control shall
include personnel matters and the availability and functionality of
equipment other than as specifically identified in (i) above) of the non-
performing Party.
<PAGE>
10.12 Government Rights. The Software and accompanying Documentation are
deemed to be "commercial computer software" and "commercial computer
software documentation," respectively, pursuant to DFAR Section 227.7202 and
FAR Section 12.212, as applicable. Any use, modification, reproduction,
release, performance, display, or disclosure thereof by the U.S. Government
shall be governed solely by the terms of this Agreement and shall be
prohibited except to the extent expressly permitted by the terms of this
Agreement.
10.13 Counterparts. The Parties have shown their acceptance of this
Agreement by causing it to be executed below by their duly authorized
representatives. This Agreement may be executed in counterparts which
together shall constitute one agreement, and each Party agrees that a copy
of a counterpart executed by it and sent to the other by any method
including without limitation facsimile shall constitute acceptance of this
Agreement.
GETS, LLC
By: /s/ C. RIVADALLA
------------------------------
Name: Christian Rivadalla
Title: Chief Executive Officer
Address:
1380 West Auto Drive
Tempe, Arizona
Facsimile: 480.831.1108
PEGASUS SOLUTIONS, INC.
By: /s/ JOHN F. DAVIS, III
------------------------------
Name: John F. Davis, III
Title: President and CEO
3811 Turtle Creek Boulevard, #1100
Dallas, Texas 75219
Attention: General Counsel
Facsimile: (214) 522-8488
<PAGE>
EXHIBIT A
ESCROW AGREEMENT
Account Number ______________________
This Agreement is effective as of __________________, 2000 among The Oaks
Bank & Trust Company, having a place of business at 2522 McKinney Ave.,
Dallas, Texas 75219 ("Oaks"), GETS, LLC, an Arizona limited liability
company, having a place of business at 1380 W. Auto Drive, Tempe, Arizona
85284 ("Depositor") and Pegasus Solutions, Inc., a Delaware corporation,
having a place of business at 3811 Turtle Creek Boulevard, #1100, Dallas,
Texas 75219 ("Registrant"), who collectively may be referred to in this
Agreement as "the parties."
A. Depositor and Registrant have entered into a written agreement
titled "Software License Agreement.," having an effective date of November
_____, 2000 regarding certain proprietary technology of Depositor (referred
to in this Agreement as the "License Agreement").
B. Depositor desires to avoid disclosure of its proprietary
technology except under certain limited circumstances.
C. The availability of the proprietary technology of Depositor may be
important to Registrant in the conduct of its business and, therefore,
Registrant needs access to the proprietary technology under certain limited
circumstances.
D. Depositor and Registrant desire to establish an escrow with Oaks
to provide for the retention, administration and controlled access of the
proprietary technology materials of Depositor.
E. The parties desire this Agreement to be supplementary to the
License Agreement pursuant to 11 United States Bankruptcy Code, Section
365(n).
ARTICLE 1 -- DEPOSITS
1.1 Obligation to Make Deposit. Upon the signing of this Agreement by the
parties, Depositor shall deliver to Oaks the deposit materials as defined in
the License Agreement (the "Deposit Materials") and as identified on Exhibit
A.
1.2 Identification of Tangible Media. Prior to the delivery of the Deposit
Materials to Oaks, Depositor shall conspicuously label for identification
each document, magnetic tape, disk, or other tangible media upon which the
Deposit Materials are written or stored. Additionally, Depositor shall
complete Exhibit B to this Agreement by listing each such tangible media by
the item label description, the type of media and the quantity. The Exhibit
B must be signed by Depositor and delivered to Oaks with the Deposit
Materials. Unless and until Depositor makes the initial deposit with Oaks,
Oaks shall have no obligation with respect to this Agreement, except the
obligation to notify the parties regarding the status of the deposit account
as required in Section 2.2 below.
<PAGE>
1.3 Deposit Inspection. When Oaks receives the Deposit Materials and the
Exhibit B, Oaks will conduct a deposit inspection by visually matching the
labeling of the tangible media containing the Deposit Materials to the item
descriptions and quantity listed on the Exhibit B. In addition to the
deposit inspection, Registrant may elect to cause a verification of the
Deposit Materials in accordance with Section 1.5 below. Under no
circumstances shall Oaks be responsible for the content of any item of the
Deposit Materials delivered to Oaks by Depositor.
1.4 Acceptance of Deposit. At completion of the deposit inspection, if
Oaks determines that the labeling of the tangible media matches the item
descriptions and quantity on Exhibit B, Oaks will date and sign the Exhibit
B and mail a copy thereof to Depositor and Registrant. If Oaks determines
that the labeling does not match the item descriptions or quantity on the
Exhibit B, Oaks will (a) note the discrepancies in writing on the Exhibit B;
(b) date and sign the Exhibit B with the exceptions noted; and (c) provide a
copy of the Exhibit B to Depositor and Registrant. Oaks' acceptance of the
deposit occurs upon the signing of the Exhibit B by Oaks. Delivery of the
signed Exhibit B to Registrant is Registrant's notice that the Deposit
Materials have been received and accepted by Oaks.
1.5 Verification. Registrant shall have the right, at Registrant's
expense, to cause a verification of any Deposit Materials. A verification
determines, in different levels of detail, the accuracy, completeness,
sufficiency and quality of the Deposit Materials. In any event, registrant
may appoint either (a) an independent firm of certified public accountants
of national reputation or (b) an independent, professional computer-
programming consultant mutually agreeable to Depositor and Registrant to
inspect, compile, test, and review the materials delivered to Oaks by
Depositor, (subject to appropriate undertakings of confidentiality and
restrictions on subsequent use or disclosure) at any time, and Oaks shall
permit such inspections and testing promptly upon request. Except as
otherwise authorized by Depositor (which authorization will not be
unreasonably withheld), such inspections and testing shall be conducted at
the offices of the Oaks.
1.6 Removal of Deposit Materials. The Deposit Materials may be removed
and/or exchanged only on written instructions signed by Depositor and
Registrant, or as otherwise provided in this Agreement.
ARTICLE 2 -- CONFIDENTIALITY AND RECORD KEEPING
2.1 Confidentiality. Oaks shall maintain the Deposit Materials in a
secure, environmentally safe, locked receptacle which is accessible only to
authorized representatives of Oaks. Oaks shall have the obligation to
reasonably protect the confidentiality of the Deposit Materials. Except as
provided in this Agreement, Oaks shall not disclose, transfer, make
available, or use the Deposit Materials. Oaks shall not disclose the
content of this Agreement to any third party. If Oaks receives a subpoena
or other order of a court or other judicial tribunal pertaining to the
disclosure or release of the Deposit Materials, Oaks will immediately notify
the parties to this Agreement. It shall be the responsibility of Depositor
and/or Registrant to challenge any such order; provided, however, that Oaks
does not waive its rights to present its position with respect to any such
order. Oaks will not be required to disobey any court or other judicial
tribunal order. (See Section 7.5 below for notices of requested orders.)
<PAGE>
2.2 Status Reports. Oaks may provide copies of the account history
pertaining to this Agreement upon the request of any party to this
Agreement.
2.3 Audit Rights. During the term of this Agreement, Depositor and
Registrant shall each have the right to inspect the written records of Oaks
pertaining to this Agreement. Any inspection shall be held during normal
business hours and following reasonable prior notice.
ARTICLE 3 -- GRANT OF RIGHTS TO OAKS
3.1 Title to Media. Depositor hereby transfers to Oaks the title to the
media upon which the Deposit Materials are written or stored. However, this
transfer does not include the ownership of the proprietary information and
materials contained on the media such as any copyright, trade secret, patent
or other intellectual property rights.
3.2 Right to Transfer Upon Release. Depositor hereby grants to Oaks the
right to provide the Deposit Materials to Registrant upon any release of the
Deposit Materials for use by Registrant in accordance with Section 4.4.
Except upon such a release or as otherwise provided in this Agreement, Oaks
shall not transfer the Deposit Materials.
ARTICLE 4 -- RELEASE OF DEPOSIT
4.1 Release Conditions. As used in this Agreement, "Release Conditions"
shall have the meaning set forth in Section 3.3(a) of the License Agreement.
4.2 Filing For Release. If Registrant believes in good faith that a
Release Condition has occurred, Registrant may provide to Oaks written
notice of the occurrence of the Release Condition and a request for the
release of the Deposit Materials. Upon receipt of such notice, Oaks shall
provide a copy of the notice to Depositor, by certified mail, return receipt
requested, or by commercial express mail.
4.3 Release of Deposit. Oaks is entitled to receive any fees due Oaks
before making the release of the Deposit Materials. This Agreement will
terminate upon the release of the Deposit Materials held by Oaks.
4.4 Right to Use Following Release. Upon release of the Deposit Materials
in accordance with this Article 4, Registrant shall have the right to use
the Deposit Materials solely in accordance with the License Agreement.
Registrant shall be obligated to maintain the confidentiality of the
released Deposit Materials in accordance with the License Agreement.
ARTICLE 5 -- TERM AND TERMINATION
5.1 Term of Agreement. The initial term of this Agreement is for a period
of one year. Thereafter, this Agreement shall automatically renew from
year-to-year unless (a) Depositor and Registrant jointly instruct Oaks in
writing that the Agreement is terminated; or (b) the Agreement is terminated
by Oaks for nonpayment in accordance with Section 5.2.
<PAGE>
5.2 Termination for Nonpayment. In the event of the nonpayment of fees
owed to Oaks, Oaks shall provide written notice of delinquency to all
parties to this Agreement. Any party to this Agreement shall have the right
to make the payment to Oaks to cure the default. If the past due payment is
not received in full by Oaks within one month of the date of such notice,
then Oaks shall have the right to terminate this Agreement at any time
thereafter by sending written notice of termination to all parties. Oaks
shall have no obligation to take any action under this Agreement so long as
any payment due to Oaks remains unpaid.
5.3 Disposition of Deposit Materials Upon Termination. Upon termination of
this Agreement, Oaks shall destroy, return, or otherwise deliver the Deposit
Materials in accordance with instructions from Depositor. If there are no
instructions, Oaks may, at its sole discretion, destroy the Deposit
Materials or return them to Depositor. Oaks shall have no obligation to
return or destroy the Deposit Materials if the Deposit Materials are subject
to another escrow agreement with Oaks.
5.4 Survival of Terms Following Termination. Upon termination of this
Agreement, the following provisions of this Agreement shall survive:
The obligations of confidentiality with respect to the Deposit Materials;
The obligation to pay Oaks any fees and expenses due;
The provisions of Article 7 hereof; and
Any provisions in this Agreement which specifically state they survive the
termination or expiration of this Agreement.
ARTICLE 6 -- OAKS' FEES
6.1 Fee Schedule. Oaks is entitled to be paid its standard fees and
expenses applicable to the services provided. Oaks shall notify Registrant,
the party solely responsible for payment of Oaks' fees, at least 90 days
prior to any increase in fees. For any service not listed on Oaks' standard
fee schedule, Oaks will provide a quote prior to rendering the service, if
requested.
6.2 Payment Terms. Oaks shall not be required to perform any service
unless the payment for such service and any outstanding balances owed to
Oaks are paid in full. Fees are due upon receipt of a signed contract or
receipt of the Deposit Materials whichever is earliest. If invoiced fees
are not paid, Oaks may terminate this Agreement in accordance with Section
5.2. Past due amounts shall accrue interest at the rate of one and one-half
percent per month (18% per annum) from the date of the invoice.
ARTICLE 7 -- LIABILITY AND DISPUTES
7.1 Right to Rely on Instructions. Oaks may act in reliance upon any
instruction, instrument, or signature reasonably believed by Oaks to be
genuine. Oaks may assume that any employee of a party to this Agreement who
gives any written notice, request, or instruction has the authority to do
so. Oaks shall not be responsible for failure to act as a result of causes
beyond the reasonable control of Oaks.
<PAGE>
7.2 Release and Indemnification of Oaks. Depositor and Registrant, jointly
and severally, do hereby (a) release, and agree to indemnify and hold
harmless, Oaks from and against any and all liability for losses, damages,
and expenses (including attorneys' fees) that may be incurred by it on
account of any action taken by Oaks in good faith pursuant to this
Agreement, and (b) agree to defend and indemnify Oaks from and against any
and all claims, demands, or actions arising out of or resulting from any
action taken by Oaks in good faith pursuant to this Agreement.
7.3 Dispute Resolution. Any dispute relating to or arising from this
Agreement shall be resolved pursuant to Section 10.2 of the License
Agreement.
7.4 Controlling Law. This Agreement is to be governed and construed in
accordance with the laws of the State of Texas, without regard to its
conflict of law provisions.
7.5 Notice of Requested Order. If any party intends to obtain an order
from the arbitrator or any court of competent jurisdiction which may direct
Oaks to take, or refrain from taking any action, that party shall:
a. Give Oaks at least five business days' prior notice of the
hearing;
b. Include in any such order that, as a precondition to Oaks'
obligation, Oaks be paid in full for any past due fees and be
paid for the reasonable value of the services to be rendered
pursuant to such order; and
c. Ensure that Oaks not be required to deliver the original (as
opposed to a copy) of the Deposit Materials if Oaks may need
to retain the original in its possession to fulfill any of
its other duties.
ARTICLE 8 -- GENERAL PROVISIONS
8.1 Entire Agreement. This Agreement, which includes the Exhibits
described herein, embodies the entire understanding among the parties with
respect to its subject matter and supersedes all previous communications,
representations or understandings, either oral or written. Oaks is not a
party to the License Agreement between Depositor and Registrant, but a copy
of the License Agreement will be included with the Deposit Materials. Oaks'
only obligations to Depositor or Registrant are as set forth in this
Agreement. No amendment or modification of this Agreement shall be valid or
binding unless signed by all the parties hereto, except that Exhibit B need
not be signed by Registrant and Exhibit C need not be signed. Oaks shall
be regarded as an independent custodian of the materials delivered to Oaks
by Depositor, and under no circumstance will Oaks be considered an agent or
trustee of Depositor or Registrant.
8.2 Notices. All notices, invoices, payments, deposits and other documents
and communications shall be given to the parties at the addresses specified
in the attached Exhibit C. It shall be the responsibility of the parties to
notify each other as provided in this Section in the event of a change of
address. The parties shall have the right to rely on the last known address
of the other parties. Unless otherwise provided in this Agreement, all
documents and communications may be delivered by First Class mail.
<PAGE>
8.3 Severability. In the event any provision of this Agreement is found to
be invalid, voidable or unenforceable, the parties agree that unless it
materially affects the entire intent and purpose of this Agreement, such
invalidity, voidability or unenforceability shall affect neither the
validity of this Agreement nor the remaining provisions herein, and the
provision in question shall be deemed to be replaced with a valid and
enforceable provision most closely reflecting the intent and purpose of the
original provision.
8.4 Successors. This Agreement shall be binding upon and shall inure to
the benefit of the successors and assigns of the parties. However, Oaks
shall have no obligation in performing this Agreement to recognize any
successor or assign of Depositor or Registrant unless Oaks receives written
notice from Depositor or Registrant of the change of parties.
8.5 Regulations. Depositor and Registrant are responsible for and warrant
compliance with all applicable laws, rules and regulations, including but
not limited to customs laws, import, export, and re-export laws and
government regulations of any country to which the Deposit Materials may be
delivered in accordance with the provisions of this Agreement.
8.6 Limited Duty of Inquiry. Anything herein to the contrary
notwithstanding, Oaks shall not be required to inquire into the truth of any
statements or representations contained in any notices, certificates, or
other documents required or permitted hereunder, and it may assume that the
signatures on any such documents are genuine, that the persons signing on
behalf of any party thereto are duly authorized to issue such document, and
that all actions necessary to render any such documents binding on any party
thereto have been duly undertaken. Without limiting the foregoing, Oaks may
in its discretion require from Depositor, additional documents which it
deems to be necessary or appropriate to aid it in the course of performing
its obligations hereunder.
8.7 Right to Interpleader. Notwithstanding any other provision of this
Agreement, in the event Oaks receives conflicting demands from Depositor or
Registrant respecting the release of the Deposit Materials to Registrant,
Oaks may, in its sole discretion, file an interpleader action with respect
thereto in any court of competent jurisdiction and place the Deposit
Materials with the clerk of the court or withhold release of the Deposit
Materials until instructed otherwise by court order.
GETS, LLC, Depositor Pegasus Solutions, Inc., Registrant
By:_______________________ By:_______________________
Name:_____________________ Name:_____________________
Title:____________________ Title:____________________
Date:_____________________ Date:_____________________
THE OAKS BANK & TRUST COMPANY
By:________________________________
Name:______________________________
Title:_____________________________
Date:______________________________
<PAGE>
EXHIBIT A
MATERIALS TO BE DEPOSITED
Account Number ______________________
Depositor represents to Registrant that Deposit Materials delivered to
Oaks shall consist of the following:
__________________________ __________________________
Depositor Registrant
By:_______________________ By:_______________________
Name: Christian Rivadalla Name:_____________________
Title: Chief Executive Title:____________________
Date:_____________________ Date:_____________________
<PAGE>
EXHIBIT B
DESCRIPTION OF DEPOSIT MATERIALS
Depositor Company Name _____________________________________
Account Number _____________________________________________
Product Name____________________________Version_____________
DEPOSIT MATERIAL DESCRIPTION:
Quantity Media Type & Size___________
____________________________
Label Description of Each Separate Item
(Please use other side if additional space
is needed)
Disk 3.5" or ____
DAT tape ____mm
CD-ROM
Data cartridge tape ____
TK 70 or ____ tape
Magnetic tape ____
Documentation
Other ______________________
PRODUCT DESCRIPTION:
Operating System____________________________________________
Hardware Platform___________________________________________
<PAGE>
EXHIBIT B (con't)
Deposit Materials have been transmitted to Oaks:_____materials (any
exceptions are noted above):
By____________________________________
Print Name______________________________
Title___________________________________
Date Accepted___________________________
Exhibit B#______________________________
Send materials to: The Oaks Bank & Trust Company, 2522 McKinney Ave.,
Dallas, Texas 75219, (214) 361-7400
<PAGE>
EXHIBIT C
DESIGNATED CONTACT
Account Number ______________________
Notices, deposit material
returns and communications to
Registrant should be addressed
to:
Pegasus Solutions, Inc.
Address:3811 Turtle Creek
Blvd., Suite 1100
Dallas, Texas 75219
Designated Contact: Bob Bennett
Telephone:214-528-5656
Facsimile:214-528-5675
Notices and communications Invoices to Depositor should be
to Depositor should be addressed to:
addressed to:
GETS, LLC GETS, LLC
1380 W. Auto Drive 1380 W. Auto Drive
Tempe, Arizona 85284 Tempe, Arizona85284
Designated Contact: Contact:
Telephone: (Ph.) /(Fx.)
Facsimile: P.O.#, if
required:___________________
Requests from Depositor or Registrant to change the designated contact
should be given in writing by the designated contact or an authorized
employee of Depositor or Registrant.
<PAGE>
EXHIBIT C (con't)
Contracts, Deposit Materials Invoice inquiries and fee
and notices to Oaks should be remittances to Oaks should be
addressed to: addressed to:
The Oaks Bank & Trust Company The Oaks Bank & Trust Company
2522 McKinney Ave. 2522 McKinney Ave.
Dallas, Texas 75219 Dallas, Texas 75219
Telephone: (214) 361-7400 Telephone: (214) 361-7400
Facsimile: Facsimile:
___________________________ _______________________________
<PAGE>
EXHIBIT B
Site
Pegasus' offices and DATA Center located in Phoenix, Arizona
<PAGE>
EXHIBIT C
Statement of Work
<PAGE>
EXHIBIT D
TERMS REQUIRED IN SUBLICENSE AGREEMENT
The Parties agree that each Sublicense Agreement between Licensee and
any Sublicensee for the Software and Documentation, shall require that the
Sublicensee agree to the following:
1. Title to the Software and Documentation does not pass to the
Sublicensee.
2. Sublicensee only obtains a nonexclusive license to use the Software
and Documentation.
3. Sublicensee shall not make any further copies of the Software and
Documentation.
4. Sublicensee shall not transfer or license the use of all or any
portion of the Software and Documentation to any third party or
entity.
5. The Software and Documentation constitute highly valuable property
of Licensor and contains copyrighted expression, trade secrets and
confidential information owned by Licensor.
6. Sublicensee shall observe (and take precautions to ensure its
employees observe) complete confidentiality with respect to the
Software and Documentation and shall not disclose all or a portion
thereof to any third party or entity, except to its employees as
required in the course of their employment.
7. Sublicensee shall not decompile, disassemble or otherwise reverse
engineer the Software.
8. The obligation set forth above shall survive any expiration of the
term of the Sublicense Agreement.
