Exhibit 10.55


 


THE
COMPANY HAS APPLIED FOR CONFIDENTIAL TREATMENT OF CERTAIN PROVISIONS OF THIS
EXHIBIT WITH THE SECURITIES AND EXCHANGE COMMISSION.  THE CONFIDENTIAL PORTIONS OF THIS EXHIBIT ARE
BRACKETED AND MARKED WITH ASTERISKS ([**]) AND HAVE BEEN OMITTED.  THE OMITTED PORTIONS OF THIS EXHIBIT WILL BE
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT.


 


SOFTWARE LICENSE AGREEMENT


 


This Software License Agreement is made and effective as of November 3,
2008 by and between Terillian Technologies Incorporated (“Terillian”)
and New Horizons Computer Learning Centers, Inc. (“Licensee”).


 


RECITALS


 


WHEREAS, Terillian has developed and owns a software program known as “Labs
on Demand” (the “Software”); and


 


WHEREAS, Licensee and its affiliates are engaged in the delivery of information
technology training throughout the world and, in that regard, Licensee is
developing a series of industry specific labs to support its learning programs;
and


 


WHEREAS, Licensee believes that the Software will provide a competitive
advantage in its industry; and


 


WHEREAS, Licensee does not want competitors to use the Software, and Terillian
has agreed not to grant any rights in or otherwise permit the use of the
Software by competitors of Licensee as set forth herein.


 


NOW, THEREFORE, in consideration of the mutual promises set forth
herein, Terillian and Licensee agree as follows:


 


1.             License.  Terillian hereby grants to Licensee a perpetual
and unlimited license to use the Software pursuant to the terms of this
Agreement.   Terillian agrees that it
shall not grant any rights in the Software to or otherwise permit the use of
the Software by a “competitor” of Licensee. 
For purposes of this Agreement, a “competitor” of Licensee shall be defined
as any business which is engaged in any of the following activities:  (i) the sale and delivery of
instructor-led computer training; (ii) the sale and/or delivery of
computer-based training and other methods of asynchronous and synchronous
online training; (iii) the sale and delivery of any form of electronic
training enabled by the Internet or comparable or enhanced forms of electronic
technology now existing or hereinafter developed; (iv) the delivery or
performance of other computer and professional skills training services that
Licensee or its affiliate incorporates into the network of franchisees; (v) the
sale and delivery of computer and professional skills classroom training
through a modality used by Licensee’s affiliate known as “Mentored Learning”;
or (vi) the sale of classroom books and other training products, including
third party content vendors’ products.


 


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2.             Restrictions.  Licensee shall not modify, copy,
duplicate, reproduce, license or sublicense the Software, or transfer or convey
the Software or any right in the Software to anyone else without the prior
written consent of Terillian.


 


3.             Fees.  Licensee shall remit a license fee to Terillian
each month based upon the usage of the Software as follows:


 


	
  [****] Titles Sold (based on $[****] per lab hour)

  	
   

  	
  $[****] USD Per Student Day

  
	
  [****] Titles Sold (based on $[****] per lab hour)

  	
   

  	
  $[****] USD Per Student Day

  
	
  [****] Titles Sold (based on $[****] per lab hour)

  	
   

  	
  $[****] USD Per Student Day

  



 


4.             Warranty
of Title.  Terillian hereby represents
and warrants to Licensee that Terillian is the owner of the Software or
otherwise has the right to grant to Licensee the rights set forth in this
Agreement. In the event any breach or threatened breach of the foregoing
representation and warranty, Licensees sole remedy shall be to require Terillian
or to either: (i) procure, at Terillian’s  expense, the right to use the Software, (ii) replace
the Software or any part thereof that is in breach and replace it with Software
of comparable functionality that does not cause any breach, or (iii) refund
to Licensee the full amount of the license fee upon the return of the Software
and all copies thereof to Terillian.


 


5.             Warranty
of Functionality.   Developer warrants that the Software shall
perform in all material respects with regard to its intended use in accordance
with industry standards and according to the Terillian specifications
concerning the Software, provided that the Software is used with the
appropriate computer equipment. In the event of any breach or alleged breach of
this warranty, Licensee shall promptly notify Terillian and return the Software
to Terillian at Licensee’s expense. Licensee’s sole remedy shall be that Terillian
shall correct the Software so that it operates according to its intended use.
This warranty shall not apply to the Software if modified by Licensor or if
used improperly or on an operating environment not approved by Licensor.


 


6.             Software
Maintenance.  Developer shall
provide to Licensee any new, corrected or enhanced version of the Software as
created by Terillian or which may be necessary in order to ensure that the
Software functions according to its intended purpose. Such enhancement shall
include all modifications to the Software which increase the speed, efficiency
or ease of use of the Software, or add additional capabilities or functionality
to the Software.


 


7.             Payment.  Terillian shall bill Licensee for all fees
due hereunder at the end of each month, and Licensee agrees to pay all
undisputed invoices within thirty (30) days of receipt.


 


8.             Warranty
Disclaimer.  TERILLIAN WARRANTIES
SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.


 


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9.             Limitation
of Liability.  Terillian shall
not be responsible for, and shall not pay, any amount of incidental,
consequential or other indirect damages, whether based on lost revenue or
otherwise, regardless of whether Terillian was advised of the possibility of
such losses in advance.


 


10.          Notices.  Any notice required by this Agreement or
given in connection with it, shall be in writing and shall be given to the
appropriate party by personal delivery or by certified mail, postage prepaid,
or recognized overnight delivery services.


 


If to Terillian:


 


Terillian Technologies Incorporated


RR 1 Box 75


Wann, OK   74083


 


If to Licensee:


 


New Horizons Computer Learning Centers, Inc.


1900 S. State College Blvd., Suite 120


Anaheim, CA  92806


Attn:  Legal Department


 


11.          Governing
Law.  This Agreement shall be
construed and enforced in accordance with the laws of California.


 


12.          No
Assignment.  Neither this
Agreement nor any interest in this Agreement may be assigned by Terillian
without the prior express written approval of Licensee.  Licensee may assign this Agreement to any of
its affiliate companies without the consent of Terillian.


 


13.          Final
Agreement.  This Agreement
terminates and supersedes all prior understandings or agreements on the subject
matter hereof. This Agreement may be modified only by a further writing that is
duly executed by both parties.


 


14.          Severability.  If any term of this Agreement is held by
a court of competent jurisdiction to be invalid or unenforceable, then this
Agreement, including all of the remaining terms, will remain in full force and
effect as if such invalid or unenforceable term had never been included.


 


15.          Headings.  Headings used in this Agreement are
provided for convenience only and shall not be used to construe meaning or
intent.


 


16.          Attorneys
Fees.  In any action or
proceeding brought by either party to enforce or interpret any provision of
this Agreement, the prevailing party shall be entitled to recover its actual
attorneys’ fees and all other litigation costs arising from such action or
proceeding.


 


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IN WITNESS WHEREOF, Terillian and Licensee have executed this Software
License Agreement on the day and year first above written.


 


 


NEW HORIZONS COMPUTER LEARNING CENTERS, INC.


 


	
  By:

  	
  /s/ Charles J. Mallon

  	
   

  
	
   

  	
  Charles J. Mallon

  	
   

  
	
   

  	
  EVP & CFO

  	
   

  
	
   

  	
   

  
	
  TERILLIAN TECHNOLOGIES INCORPORATED

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Phyllis Scott

  	
   

  
	
   

  	
  Phyllis Scott

  	
   

  
	
   

  	
  President

  	
   

  



 


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