Bell and Howell BCC, LLC

Sotware License Agreement

THIS SOFTWARE LICENSE AGREEMENT and all applicable Order Schedules subject to the terms hereof (collectively the "Agreement") is made as of the Effective Date by and between Bell and Howell BCC, LLC, a Delaware limited liability company with offices located at 75 Josons Drive, Rochester, NY 14623-3494 (Licensor) and the individual or entity identified below as Licensee.

The Licensee has executed an Order Schedule for one or more licenses of Software licensed by the Licensor.

The Licensor has agreed to license the Software on the terms of this Agreement. NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions set forth herein, Licensor and Licensee hereby agree as follows:

ARTICLE I: DEFINITIONS

Section 1.01 -- Definitions: The following definitions shall apply:

  1. Access: The term "access" and variants thereof shall mean to store data in, retrieve data from or otherwise approach or make use of (directly or indirectly) through electronic means or otherwise.
  2. Business Hours: The term "Business Hours" shall mean the normal business operating hours of Licensor which are from 8:45AM until 5:30PM EST, Monday through Friday, except holidays as posted on the Licensor's Web site.
  3. Cancellation Notice: The term "Cancellation Notice" shall mean that written notice sent by Licensor to Licensee seeking to cancel this Agreement because of breach by Licensee.
  4. Critical Defect: The term "Critical Defect" shall mean that certain Software defect that renders the Software inoperable or causes major functionality to be impaired or impacted.
  5. Defect Notice: The term "Defect Notice" shall mean that certain written notice from Licensee to Licensor identifying discrepancies between the actual performance of the Software and the performance represented in the Documentation.
  6. Delivery Date: The term "Delivery Date" shall mean the date the Software is shipped to the Licensee at the Licensed Site as set forth on Licensor's invoice.
  7. Documentation: The term "Documentation" shall mean the current copy of Licensor's User's Guide and Release Notes as made available to Licensee by Licensor.
  8. Effective Date: The term "Effective Date" shall mean the date Order Schedule is last signed by Licensor and Licensee.
  9. Enhancement: The term "Enhancement" shall mean an Enhancement in executable code for modifications to the Software which improve or expand the functionality or features of the Software made generally available to Licensees of the Software at an additional charge.
  10. License Fee: The term "License Fee" shall mean the amount of money specified as the License Fee on the Order Schedule.
  11. License Term: The term "License Term" shall mean a period of one (1) year commencing upon the Delivery Date and any subsequent renewal thereof. Subject to termination or notice of non-renewal as set forth below, the Software subscription shall thereafter automatically renew for successive one (1) year terms, at the then current software maintenance fees.
  12. Licensed Site: The term "Licensed Site" shall mean the office facility of Licensee identified on the Order Schedule.
  13. License Scope: The term "License Scope" shall have the meaning set forth on the Order Schedule.
  14. Maximum Users: The term "Maximum Users" shall mean the maximum number of Users authorized by Licensor to simultaneously access the Software, as specified on the Order Schedule.
  15. Payment Terms: The term "Payment Terms" shall mean the Payment Terms for the applicable License Fee as specified on the Order Schedule.
  16. Software: The term "Software" shall mean the program diskettes, CD's and/or DVD's and the computer programs contained therein in machine-readable, object code form only for that certain Software described on the Order Schedule, including Updates thereto.
  17. Software Maintenance: The term "Software Maintenance" shall mean software support provided by Licensor under the terms of this License Agreement.
  18. Termination Notice: The term "Termination Notice" shall mean that written notice sent by Licensee to Licensor seeking to terminate this Agreement as such notice applies to an identified Order Schedule in accordance with Article V hereof.
  19. Unauthorized Access: The term "Unauthorized Access" shall mean any access to the Software or Documentation by Licensee or any third party for any use other than within the License Scope, in connection with the operation of Licensee's business, evaluating the performance, utility and functions of the Software, and training employees or independent contractors of Licensee in the use of the Software.
  20. Unauthorized User: The term "Unauthorized User" shall mean any individual other than an employee of Licensee authorized by Licensee who accesses the Software or Documentation, for any use outside of the License Scope, evaluating the performance, utility and functions of the Software for a purpose other than training employees or independent contractors of Licensee in the use of the Software.
  21. Update: The term "Update" shall mean a modification of the Software whenever developed or published by Licensor and made generally available to Licensees of the Software at no additional charge.
  22. Users: The term "Users" shall mean employees authorized by Licensee to access the Software in connection with the operation of its business and independent contractors of Licensee who have executed a confidentiality agreement which accords the Software and Documentation confidential treatment and acknowledges the rights of the Licensor.

ARTICLE II: LICENSE

Section 2.01 -- License Grant: Licensor hereby grants to Licensee, and Licensee accepts, a non-exclusive , non-transferable, revocable license to use Software, and the accompanying Documentation, only as authorized in this Agreement. Only a single user on a computer owned, leased, or otherwise controlled by Licensee at any point in time may use the Software. Neither concurrent use on two or more computers nor concurrent use by two or more users in a local area network or other network is permitted without separate authorization and the payment of other license fees. Licensee agrees that Licensee will not assign, sublicense, transfer, pledge, lease, rent, or share its rights under this Agreement unless previously authorized in writing by Licensor. Licensee agrees that Licensee shall not reverse assemble, reverse compile, or otherwise translate the Software. This license does not authorize Licensee to use any component of the Software separately for any purpose.

Licensee may make one copy of the Software on a second set of diskettes (or other media) for the purpose of backup in the event the program diskettes are damaged or destroyed. Licensee may make one copy of the Documentation for backup purposes. Any such copies of the Software or the Documentation shall include Licensor's copyright and other proprietary notices. Except as authorized under this paragraph, no copies of the Software or any portions thereof may be made by Licensee or any person under its authority or control.

Notwithstanding terms hereof, certain libraries, for example TDbf, that are dynamically linked to the Software may be covered by so-called "open source" software licenses ("Open Source Components"). The terms of such open source software licenses apply to the Open Source Components in lieu of the terms of this Agreement. To the extent the terms of the open source software licenses prohibit certain restrictions on such Open Source Components, if any, contained in this Agreement, such restrictions will not apply to such Open Source Components.

Section 2.02 -- Licensor's Rights: Licensee acknowledges and agrees that the Software and the Documentation are proprietary products of Licensor protected under U.S. copyright law. Licensee further acknowledges and agrees that all right, title, and interest in and to the Software, including associated intellectual property rights, are and shall remain with Licensor and any third party from which Licensor obtains its rights. This Agreement does not convey to Licensee an interest in or to the Software, but only a limited right of use revocable in accordance with the terms of this Agreement. Licensee acknowledges that Licensee is a sub-licensee of the United States Postal Service ("USPS") and this license does not convey any rights greater than rights of the Licensor under its license agreement with the USPS.

Section 2.03 -- Withdrawal or Update of Software: Licensor reserves the right to withdraw from the Software any item or part of an item for which it no longer retains the right to license, or which it has reasonable grounds to believe infringes copyright or is unlawful. Licensor reserves the right to update the Software as required for its intended use. Licensor shall give written notice to Licensee of such actions no later than thirty (30) days following the removal of any item or update pursuant to this section. If any such action renders the Software less useful to Licensee, Licensor shall, at its option obtain for Licensee the right to use the removed material, replace the removed material with a suitable replacement, restore the material to its original configuration or reimburse Licensee in an amount that the withdrawal is proportional to the total Fees owed by Licensee under this License Agreement.

Section 2.04 – User Restriction: Licensee shall not permit more than the Maximum Users from simultaneously accessing the Software as referred to in the Order Schedule, if applicable.

Section 2.05 -- Acceptance: Licensor shall ship the Software, Documentation and Updates available for general release at time of order to Licensee within five (5) business days of receipt of Licensee's approved order. The Software shall be deemed accepted by Licensee thirty (30) days after receipt of the Software unless a Defect Notice is received by Licensor within such period. Upon receiving a Defect Notice from Licensee, Licensor shall review the asserted discrepancy to determine if the discrepancy is valid. If, in the reasonable judgment of Licensor the discrepancy is valid, Licensor shall correct the discrepancy and resubmit the Software for acceptance by Licensee. If, in the reasonable judgment of Licensor the discrepancy is not valid, Licensor shall submit to Licensee a written explanation of the reasons why such asserted discrepancy is not valid. The written explanation of Licensor set forth herein shall be deemed accepted by Licensee within ten (10) days after receipt by Licensee of the written explanation unless Licensor receives from Licensee written notice rejecting such explanation and terminating this Agreement within such ten (10) day period.

Section 2.06 -- Risk of Loss: Licensee assumes risk of loss to the Software and Documentation as of the Delivery Date.

Section 2.07 -- Authorized Use: Licensee shall prohibit Unauthorized Users from accessing the Software and Documentation. Licensee shall prohibit Unauthorized Access to the Software and Documentation. Licensee agrees to use the Software only within the United States, its territories and possessions for the purpose of improving business delivery addresses in multi-occupation buildings for use on letters, flats, postcards, packages, leaflets, magazines, advertisements, books, other printed material and any other item to be delivered by the USPS.

Section 2.08 -- Site Only: Licensee shall install the Software only at the Licensed Site unless prior written approval is received from Licensor to install the Software at another Licensee facility.

ARTICLE III: SOFTWARE SUPPORT

During the License Term and any renewal of the License Term, the Licensor shall correct any Critical Defect in the Software within a reasonable period of time after such Critical Defect is reported to Licensor by Licensee as follows:

  1. Problem Reporting: Upon discovering a Critical Defect, Licensee shall report the Defect to Licensor.
  2. Telephone Support: Within four (4) Business Hours after receiving a report of a Critical Defect, Licensor shall provide telephone support in the form of consultations, assistance and advice concerning use of the Software and correction of the Critical Defect.
  3. If a Critical Defect is not corrected through Telephone Support, Licensor will conduct tests and analyses designed to reproduce, isolate and correct the Critical Defect upon receipt of information and data from Licensee sufficient to replicate the Critical Defect
  4. If Licensor is unable to correct a Critical Defect within a reasonable time after it has taken the steps described in subparagraphs (a) through (c) above, Licensor shall implement work-around processes designed to minimize the impact of the Critical Defect.
  5. Software Defects other than Critical Defects will be corrected at the sole discretion of the Licensor.

ARTICLE IV: PAYMENT

Section 4.01 – License Fees: Licensee shall pay the License Fee to Licensor in accordance with the Payment Terms.

Section 4.02 -- Taxes: Licensee shall pay any and all applicable taxes (excluding income taxes measured by Licensor’s income and assessed against Licensor).

ARTICLE V: TERMINATION

Section 5.01 -- Termination Limitations: This Agreement shall only be terminated or cancelled as provided under this Article V.

Section 5.02 -- Term: This Agreement shall be valid for the License Term.

Section 5.03 -- Termination: Licensee may terminate this Agreement at the end of the initial License Term or any renewal thereof by providing to Licensor a Termination Notice at least thirty (30) days prior to the last day of such period.

Section 5.04 -- Cancellation for Cause: If either party materially breaches its obligations under this Agreement, the non-breaching party may cancel this Agreement by sending a Cancellation Notice describing the breach to the breaching party. Upon receipt of such Cancellation Notice, the breaching party shall have thirty (30) days from the date of such notice to cure any such breach ("Cure Period"). If such breach is not cured within Cure Period, the non-breaching party shall have the right to cancel this Agreement as of the expiration of the Cure Period.

Section 5.05 -- Destruction of Software upon Termination: Upon termination or cancellation of this Agreement, Licensee shall destroy all Software and Documentation provided to Licensee by Licensor. An officer of Licensee shall certify the Licensee's destruction of the Software and Documentation.

ARTICLE VI: WARRANTY

Section 6.01 -- LIMITED WARRANTY: Licensor warrants to Licensee for a period of 90 days from the date of commencement of this License Agreement (referred to as the "Warranty Period") that the program diskettes, CD's and/or DVD's or other media in which the Software is contained are free from defects in material and workmanship. Licensor further warrants to Licensee that during the Warranty Period the Software shall operate substantially in accordance with the functional specifications in the Documentation. If during the Warranty Period, a defect in the Software appears, Licensee may return the Program to Licensor for either replacement or, if so elected by Licensor, refund of amounts paid by Licensee under this License Agreement. Licensee agrees that the foregoing constitutes your sole and exclusive remedy for breach by Licensor of any warranties made under this Agreement.

Notwithstanding anything to the contrary in this Agreement, Licensor warrants, where applicable, that the distributed version of the Software meets documented certifications, such as CASS, PAVE, etc., provided that it is used only with distributed shared libraries (i.e., the distributed version of the TDbf Library). Any changes or modifications to the shared libraries or changes or modifications (including attempts to reverse engineer the Software in order to make changes or modifications to) to the Software will invalidate the BCC certifications in the licensed Software. Licensor is not responsible for any problem or failure of the [Software] to operate resulting therefrom.

Exclusions. Licensor is not responsible for any problem, including any problem which would otherwise be a breach of warranty, caused by failures resulting from any (i) changes made in the operating characteristics of computer hardware or operating systems after the installation of the Software; (ii) interaction of the Software with software not furnished by Licensor; (iii) failure to follow Licensor’s installation, operation or maintenance instructions for the Software; (iv) modifications or alteration of the Software; (v) abuse, misuse, accidents, or negligent acts or omissions by Licensee, Licensee's employees or agents, or by any third party; or (vi) acts of nature.

Section 6.02 -- Disclaimer. FOREGOING WARRANTIES APPLY TO THE ORIGINAL LICENSEE ONLY AND ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CORRECTION OR REPLACEMENT IS LICENSEE’S SOLE AND EXCLUSIVE REMEDY.

Section 6.03 -- Non-Infringement: Licensor represents and warrants that Licensee’s use of the Software, furnished under this License Agreement will not infringe any patent, trademark, copyright, make right, trade secret or proprietary right of another Party("Intellectual Property Rights"), which would in any way interfere or be inconsistent with the rights of Licensee under this License Agreement. Notwithstanding the foregoing, Licensor shall have no responsibility for combinational use of the Software with third party products or Licensee's own products resulting in infringement of the Intellectual Property Rights of any other person, to the extent that such infringement does not exist in the Software as delivered by Licensor to Licensee and is not created at Licensor's direction or by use of the Software in accordance with the Documentation. If the Software becomes, or in Licensee's opinion may become, the subject of any claim, suit or proceeding for infringement of any Intellectual Property Rights, or if any Software is held or otherwise determined to infringe any Intellectual Property Rights, Licensor will, in its sole discretion:

  1. Replacement: Replace the Software with a non-infringing Software product of equivalent functional and performance capability;
  2. Modification: Modify the Software to avoid the infringement without eliminating the functional and performance capabilities of the Software or
  3. Obtain License: Obtain a License for use of the Software from the third party claiming infringement for use of the Software.

The remedies set forth herein shall be the sole and exclusive remedies of Licensee under this Section 6.03.

Section 6.04 -- Limitation of Damages: Licensor's cumulative liability to Licensee or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed the license fee paid to Licensor for the use of the Program. In no event shall Licensor be liable for any indirect, incidental, consequential, special, or exemplary damages or lost profits, even if Licensor has been advised of the possibility of such damages.

FURTHER, LICENSEE ACKNOWLEDGES THAT BECAUSE OF THE COMPLEXITY OF COMPUTER TECHNOLOGY, THE LICENSOR CANNOT GUARANTEE THAT SOFTWARE OPERATIONS WILL BE UNINTERRUPTED AND ERROR-FREE. LICENSEE SHOULD NOT RELY EXCLUSIVELY ON THE RESULTS GENERATED BY THE SOFTWARE, BUT LICENSEE SHOULD INDEPENDENTLY VERIFY THE ACCURACY OF THOSE RESULTS.

THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6.03.

Section 6.05 -- Force Majeure: Licensor shall not be liable to Licensee for failing to perform its obligations under this Agreement because of circumstances beyond the control of Licensor. Such circumstances shall include, but not be limited to, any acts or omissions of any government or governmental authority, natural disaster, act of a public enemy, riot, sabotage, dispute or differences with workmen, power failure, delays in transportation or deliveries of supplies or materials, acts of God, terrorism, or any events reasonably beyond the control of Licensor.

ARTICLE VII: INTELLECTUAL PROPERTY

Section 7.01 -- Ownership and Title: Title to the Software and Documentation including ownership rights to patents, copyrights, trademarks and trade secrets therein shall be the exclusive property of Licensor.

Section 7.02 -- Reverse Engineering: Licensee shall not reverse engineer or decompile the Software.

Section 7.03 -- Copies: Licensee shall not copy the Software and shall not allow the Software to be copied except for one backup copy.

Section 7.04 -- Modifications: Licensee shall not modify the Software and shall not allow the Software to be modified by any third party without the prior written consent of Licensor. Licensee shall not use the Software or any materials incident thereto to develop any derivative products without the prior written consent of Licensor. If the Software is modified, such modifications shall be the sole and exclusive property of Licensor and Licensee shall assign to Licensor all of its rights, title and interests to such modifications and any resulting any derivative products, including (but not limited to) any and all copyrights, patents and trade secrets related thereto.

Section 7.05 -- U.S. Government Restricted Rights: This Section 7.05 shall not apply unless Licensee is the U.S. Government or an agency or department thereof (collectively "Government"). The Software and Documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1) and (2) of the Commercial Computer Software Restricted Rights clause at 48 C.F.R. 52.227-19.

Section 7.06 -- Continuation: The terms and provisions of this Article VII shall survive termination and cancellation of this Agreement

Section 7.07 -- Trademarks: Mail Manager 2010™, Mail Manager 2010 LE™, Mail Manager FS™, TagIt Pro™, ZIPFOURce™, and Data Services Manager™ are trademarks of Licensor. No right, license, or interest to such trademark is granted hereunder, and Licensee agree that Licensee shall assert no such right, license, or interest with respect to such trademark.

The USPS is the owner of numerous trademarks, including but not limited to: United States Postal Service®, Postal Service™, Post Office™, United States Post Office®, the Eagle logo, ZIP + 4®, CASS™, CASS Certified™, DPV™, eLOT™, RDI™, LACSLink™, NCOALink™, SuiteLink™.

Article VIII: SECURITY

At all times, the Licensee shall maintain (a) appropriate security controls to restrict access to the hardware, software (including the server and workstations), and data used in connection with the service or process and to ensure a secure environment for maintaining that hardware, software, and data, (b) personnel and management policies sufficient to provide reasonable assurance of the trustworthiness and competence of its employees and the satisfactory performance of their duties and in accordance with all applicable laws, rules and regulations, and (c) appropriate computer and network security controls, including the use of reasonable security procedures which are sufficient to ensure that documents, notices and other information specified in this Agreement that are electronically created, communicated, processed, stored, retained, or retrieved are authentic, accurate, reliable, complete, and confidential, and that business records and data are protected from improper access.

ARTICLE IX: MISCELLANEOUS

Section 9.01 -- Assignments: All assignments of rights under this Agreement by Licensee without the prior written consent of Licensor shall be void.

Section 9.02 -- Entire License: This Agreement contains the entire understanding of the parties and supersedes previous verbal, written and click-through Agreements between the parties concerning licensing of the Software.

Section 9.03 -- Amendments and Modifications: Waivers, alterations, modifications or amendments of a provision of this Agreement shall not be binding unless such waiver, alteration, modification or amendment is in writing and signed by the party against which enforcement of such waiver, alteration, modification or amendment is sought.

Section 9.04 -- Severability: If a provision of this Agreement is rendered invalid, the remaining provisions shall remain in full force and effect.

Section 9.05 -- Captions: The headings and captions of this Agreement and the Terms and Conditions are inserted for reference convenience and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision.

Section 9.06 -- Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be an original, but which together shall constitute one and the same instrument.

Section 9.07 -- Governing Law: This Agreement shall be governed by and subject to the internal laws (exclusive of the Conflicts of Law provisions) and decisions of the courts of the State of Illinois. The parties consent to the exclusive jurisdiction of any local, state or federal court located within Cook County, Illinois and waive any objection relating to improper venue or forum non convenes with regard to any litigation, action or proceedings arising from or relating to this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, and if any provision of this Agreement is held illegal, invalid or void, such provision may be changed to the extent reasonably necessary to make the provision, as so changed, legal, valid and binding. In any event, the remaining provisions of this Agreement shall not be affected or impaired and, to that end, the provisions of this Agreement shall be severable.

Section 9.08 -- Notice: All communications shall be in writing. Notices shall be deemed delivered when delivered by Certified Mail or by hand to the address set forth on the Order Schedule. Notice shall be deemed given on the date of receipt - as evidenced in the case of Certified by Return Receipt.

Section 9.09 -- Pronouns/Gender: Pronouns and nouns shall refer to the masculine, feminine, neuter, singular or plural as the context shall require.

Section 9.10 -- Bankruptcy: If either party must institute, defend, appear or attend a bankruptcy proceeding as a result of the filing of bankruptcy by the other party, fees and expenses shall be paid by the filing party. If either party has a bankruptcy proceeding filed against it, the other party shall recover attorney fees, expert witness fees, and other costs incurred by such other party in connection with the bankruptcy proceeding, hearing or trial.

Section 9.11 -- Waiver: Waiver of breach of this Agreement shall not constitute waiver of another breach. Failing to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision.

Section 9.12 -- Relationship of the Parties: It is agreed that the relationship of the parties is primarily that of Licensee and Licensor. Nothing herein shall be construed as creating a partnership, an employment relationship, or an agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party maintains its separate identity.

Section 9.13 -- No Contest: Licensee shall not contest or aid in contesting the ownership or validity of the trademarks, service marks, trade secrets or copyrights of Licensor.

Section 9.14 -- Arbitration: Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Arbitration Rules of the American Arbitration Association in Chicago, Illinois. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The parties in accordance with the Arbitration Rules of the American Arbitration Association shall select qualified Arbitrators. Each party shall have the right of discovery as set forth in the Federal Rules of Civil Procedure. The American Arbitration Association shall administer the Arbitration.

Section 9.15 -- Assurances: Each party hereby represents and warrants that all representations, warranties, recitals, statements and information provided to each other under this Agreement are true, correct and accurate as of the date of this Agreement to the best of their knowledge.

Section 9.16 -- Litigation Expense: In the event of litigation or arbitration arising out of this Agreement, the costs of such litigation or arbitration, including, but not limited to, attorney fees, travel expenses, deposition costs, expert witness expenses and fees, court costs, arbitration fees and other costs incurred in connection with bringing or defending such action whether or not incurred in trial or appeal shall be recovered by the prevailing party from the non-prevailing party.

The parties have caused their respective authorized officers to execute the Order Schedule subject to the terms set forth herein on the Effective Date.