EXHIBIT 10.16
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▇▇▇▇ INTERACTIVE SERVICES
MASTER SOFTWARE LICENSE AGREEMENT
[British Telecommunications PLC]
THIS MASTER SOFTWARE LICENSE AGREEMENT ("Agreement"), together with the attached
Schedules, Exhibits or Addenda which are incorporated and made part of this
Agreement, is entered into by and between ▇▇▇▇ INTERACTIVE SERVICES ("▇▇▇▇"), a
Colorado corporation with its principal offices located at ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ and the client(s) ("Client") whose name,
principal business address, and jurisdiction of incorporation are set forth
below. ▇▇▇▇ and Client are referred to collectively as the "Parties." This
Agreement is effective as of the date signed by ▇▇▇▇ ("Effective Date").
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Client Name(s): BRITISH TELECOMMUNICATIONS PLC TRADING AS YELLOW PAGES
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Address: QUEENS WALK
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City: READING
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State/Zip or Province/Postal Code: ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
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Country: UNITED KINGDOM
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Jurisdiction of Incorporation: UNITED KINGDOM
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1.0 License, Hosting Services and Payment.
1.1 ▇▇▇▇ hereby grants to Client a perpetual and non-transferable License to
use the Products with the Number of Sites designated in Schedule A, subject to
the terms and conditions of this Agreement.
1.2 Client may, at its option and expense, host or request a third party or
▇▇▇▇ to host Client's web site. If Client elects to have ▇▇▇▇ host Client's web
site, ▇▇▇▇ shall do so only if the Parties enter into the Web Site Hosting
Agreement attached hereto as Schedule C.
1.3 Client shall pay ▇▇▇▇ the License Fees and any applicable Sales Tax on
License Fees, as set forth in Exhibit attached hereto, subject to any discounts
therein. All fees are exclusive of Taxes. If applicable laws require the
withholding of Taxes under this Agreement, Client shall notify ▇▇▇▇, make the
applicable withholding, and remit the required Tax to the proper governmental
authority.
2.0 Delivery and Installation.
2.1 Unless otherwise agreed by the Parties in a separate written agreement,
▇▇▇▇ shall deliver the Products to Client, including one copy of the Software
and one copy of the Documentation on appropriate media upon receipt of a
completed contract from Client.
2.2 Unless otherwise agreed by the Parties in a separate written agreement,
Client shall, at its expense, be responsible for installation of the Software,
User training, data conversion, and other services necessary to installing and
using the Products.
3.0 Definitions.
3.1 "Agreement" means this Agreement, Exhibits and any addenda signed by the
Parties.
3.2 "Documentation" means all documentation delivered by ▇▇▇▇ with the
Software, whether in machine-readable or printed form, including any updates,
revisions, new versions, and supplements to such documentation.
3.3 "Effective Date" means the date when authorized representative of ▇▇▇▇
signs this Agreement as indicated at the end of this Agreement in the space
marked "Date" below ▇▇▇▇'▇ signature to this Agreement.
3.4 "Intellectual Property Rights" means all copyrights, confidentiality
rights, trade secret rights, trademark rights, patent rights and other
intellectual property rights.
3.5 "License" means the license referred to in Section 1.1.
3.6 "License Fee" means the license fee payable for a Product as set forth in
the Schedule A, Exhibit A-1. License Fee and any other payments required to be
paid by Client under this Agreement shall be in United States currency.
3.7 "Maintenance and Support" means the assistance provided by ▇▇▇▇, directly
or indirectly, to Client pursuant to the Maintenance and Support Agreement
attached to this Agreement.
3.8 "Modifications or Enhancements" means any modifications, enhancements or
derivative works to the Products which contain or use any object code or source
code developed by ▇▇▇▇.
3.9 "Number of Small/Medium Enterprises" or "SMEs" means the maximum number of
Client's customers' web sites which may use the licensed Products.
3.10 "Number of Sites" means the maximum number of locations at which the
server portion of the Products are installed.
3.11 "Patent or Copyright" means a patent or copyright granted by the
government of the country in which the server portion of the Products is first
installed.
3.12 "Platform Technology" means the current and future release levels of the
combined hardware operating system and database system designated in the
Exhibits and certified by ▇▇▇▇ for Use with the Products. Unless otherwise
agreed upon in this Agreement, ▇▇▇▇ shall not be obligated to provide Support
for any portion of the Platform Technology.
3.13 "Products" means the products owned by ▇▇▇▇ and designated on Schedule A
to this Agreement.
3.14 "Product Warranty" means the warranty referred to in Section 5.0.
3.15 "Software" means the software portion of the Product installed on the
Platform Technology in object code or source code format, any updates,
revisions, new versions, supplements, and all permitted copies of the foregoing
supplied by ▇▇▇▇ to Client, whether in machine readable or printed form.
3.16 "Taxes" means any sales, use, excise, value-added, withholding taxes or
other taxes based upon this Agreement, including taxes, interest and penalties
that are levied or assessed by a governmental authority, resulting from this
Agreement, excluding taxes based on ▇▇▇▇'▇ net income.
3.17 The singular and plural shall each include the other, and this Agreement
shall be read accordingly when required by the facts.
4.0 Maintenance and Support.
4.1 If applicable during the term of this Agreement, ▇▇▇▇ shall provide
Maintenance and Support to Client pursuant to the Maintenance and Support
Agreement attached hereto as Schedule B.
5.0 Warranty
5.1 ▇▇▇▇ warrants that at the time of delivery of the Products, the media
containing the Products shall be free of material defects. Client's sole and
exclusive remedy for breach of the Media Warranty is replacement of the
defective media if any such defect is found within three (3) months after
deployment of the defective media and Client promptly notifies ▇▇▇▇ of the
defect in writing.
5.2 ▇▇▇▇ warrants that upon delivery, the Products shall materially or
substantially perform in accordance with the Documentation provided by ▇▇▇▇.
Client's exclusive remedies for breach of the Product Warranty are (a) Client
may request Maintenance and Support from ▇▇▇▇ to enable the Products to comply
with the Product Warranty, and (b) if the Maintenance and Support requested by
Client does not enable the Products to comply with the Product Warranty within a
reasonable period of time, Client may, at its option, seek a replacement of the
affected Products or a refund of the License Fee paid directly to ▇▇▇▇ by Client
for the affected Products. ▇▇▇▇ shall not be liable to remedy any claimed
breach of the Product Warranty due to the acts or omissions of the Client or any
third party.
5.3 ▇▇▇▇ agrees that, as long as Client is not in breach of any term of this
Agreement, Client shall have access and the rights to use the source code to the
Products (in perpetuity and provided such use is consistent with the terms of
this Agreement) if, due to no fault of Client, ▇▇▇▇ goes bankrupt or otherwise
ceases to exist as a going concern.
5.4 THE EXPRESS LIMITED WARRANTIES IN THIS SECTION 5.0 ARE IN LIEU OF ALL
OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, CONTRACTUAL OR STATUTORY,
INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANY OTHER PROVISION IN THIS
AGREEMENT, ▇▇▇▇ DOES NOT WARRANT THAT THE USE OF THE PRODUCTS SHALL BE
UNINTERRUPTED OR ERROR FREE OR THAT ALL DEFICIENCIES OR ERRORS ARE CAPABLE OF
BEING CORRECTED.
6.0 Intellectual Property Rights.
6.1 Client acknowledges and agrees that the Products, the ideas, methods of
operation, processes, know-how, aesthetic aspects, sub-systems and modules
included in the Products, the graphical user interfaces for the Products, and
the look and feel of the Products are proprietary materials which contain
valuable trade secrets and that all Intellectual Property Rights to the Products
are owned exclusively by ▇▇▇▇, subject to the License.
6.2 Client acknowledges and agrees that ▇▇▇▇ shall retain title to all
Intellectual Property Rights related to the Products, copies of the Products,
and Modifications or Enhancements. If the Client makes any Modifications or
Enhancements with ▇▇▇▇'▇ consent, the Client shall retain title to all
Intellectual Property Rights to the Modifications or Enhancements and ▇▇▇▇ shall
pay all the Client's development costs thereto provided that ▇▇▇▇ accepts the
Modifications and Enhancements and intends to commercialize the Modifications or
Enhancements for its economic benefit. Modifications or Enhancements may be
used in conjunction with the Products only in compliance with this Agreement.
6.3 Client shall take reasonable precautions (including the precautions used
for Client's own confidential information) to prevent the
unauthorized use or disclosure of the Products, any source code provided to
Client under this Agreement, or the results of any performance or benchmark
tests of the Products. Client shall not allow the Products or any such test
results to be made available to any third party who is not an authorized user,
unless ▇▇▇▇ approves such in writing and the third party enters into a non-
disclosure and non-use agreement with Client on terms acceptable to ▇▇▇▇. Client
shall not disassemble, decompile, decode or reverse engineer the Products,
except as expressly permitted by applicable law.
6.4 Client shall keep the Products free and clear of all liens and security
interests and may not sublicense the Products.
7.0 Inspection.
▇▇▇▇ shall have the right to inspect, with reasonable notice, during normal
business hours, any location where the Products are being used and to run the
Products for the purpose of auditing its use.
8.0 Number of Small/Medium Enterprises (SMEs).
The number of SMEs authorized to use any Product is described on Schedule A of
this Agreement. At all times during the term of this Agreement, Client shall
take reasonable precautions to ensure that the number and locations of SMEs are
not exceeded, including periodic audits of use of the Products.
9.0 Number of Sites.
The Number of Sites upon or at which the Product is installed shall not exceed
the quantities specified in this Agreement as stated in the Attached Schedule A.
10.0 Other Products.
10.1 If Client desires to obtain other or additional available products from
▇▇▇▇ that do not have pricing, features and functionality similar to the
Products, those products shall be licensed for use by Client only by entering
into a separate Product License Agreement with ▇▇▇▇ at ▇▇▇▇'▇ then current
license fees.
10.2 All future products, upgrades or enhancements shall be developed and made
available by ▇▇▇▇ at its sole discretion. In providing future products,
upgrades or enhancements developed and made available by ▇▇▇▇, ▇▇▇▇ shall not
intentionally discriminate against Client in terms of availability and pricing
for identical products and services.
11.0 Copies of Software and Documentation.
11.1 Client may copy the Software, in object and/or source code format, only
for backup and archival purposes. All copies of the Software must have all of
the restrictive and proprietary notices as they appear on copies of the Software
provided by ▇▇▇▇.
11.2 Client may copy Documentation of the Products only on a limited basis
related to the number of SMEs. All copies of the Documentation shall have all
of the restrictive and proprietary notices as they appear on copies of the
Documentation provided by ▇▇▇▇.
12.0 Source Code.
The Software, in source code format, may be used only for diagnosing problems
and developing Modifications or Enhancements permitted by this Agreement.
Client shall ensure that only such authorized users have access to the source
code.
13.0 Infringement.
13.1 ▇▇▇▇ shall, at its expense, defend any suit or claim brought against
Client and shall indemnify Client against an award of damages and costs against
Client by a final court judgment based on a claim that Client's use of a Product
infringes a Patent or Copyright, if Client: (a) notifies ▇▇▇▇ in writing of the
suit or claim within ten (10) days after Client receives notice; (b) gives ▇▇▇▇
sole authority to defend or settle the suit or claim; (c) gives ▇▇▇▇ all
information in Client's control concerning the suit or claim; and (d) reasonably
cooperates and assists ▇▇▇▇ with defense of the suit or claim.
13.2 If any Product becomes or in ▇▇▇▇'▇ opinion is likely to become the
subject of a suit or claim of infringement of a Patent or Copyright, ▇▇▇▇ shall
at its option and expense (a) obtain the right for Client to use the Product;
(b) replace or modify the Product so that it becomes non-infringing; or (c)
terminate the License for the infringing Product and this Agreement to the
extent it relates to the infringing Product. If ▇▇▇▇ terminates the License for
the infringing Product: under this Section 13.2 (a) Client shall cease to use
the infringing Product and shall return it to ▇▇▇▇; and (b) ▇▇▇▇ shall pay
Client, as Client's sole and exclusive remedy against ▇▇▇▇ (other than
indemnification by ▇▇▇▇ under Section 13.1) an amount equal to the License Fee
paid under this Agreement for the infringing Product less any cumulative
amortization or depreciation of that Product by Client on its financial
statements as of the date when ▇▇▇▇ terminates the License for the infringing
Product plus any refunds the Client may pay to its customers as a result of the
withdrawal of the services anticipated by this Agreement such that the aggregate
amount payable by ▇▇▇▇ taking account of depreciation and refunds shall not
exceed (i) the License Fee paid by Client if the infringement occurs during the
first year of this Agreement; or (ii) sixty (60) percent of the License Fees
paid by Client if the infringement occurs after the first year of this
Agreement.
13.3 ▇▇▇▇ shall have no liability to Client under this Section 13.0 if any suit
or claim of infringement is based upon the use of the Product: (a) in
combination, operation or use with any product not furnished by ▇▇▇▇; (b) in a
modified state not authorized by ▇▇▇▇; or (c) in a manner other than for which
it was designed, if infringement would have been avoided without such use of the
Product. ▇▇▇▇ shall not be liable to Client for any infringement claim outside
the United States or the country in which the Products are installed.
14.0 Term and Termination.
14.1 The term of this Agreement shall begin upon the Effective Date, and shall
continue until terminated by either Party pursuant to the terms and conditions
of this Agreement.
14.2 ▇▇▇▇ may terminate this Agreement and the License granted to Client if
▇▇▇▇ is in compliance with this Agreement and either (a) Client fails to pay
▇▇▇▇ any amounts when due ▇▇▇▇ or, (b) Client is in material default of any
other provision of this Agreement and such default has not been cured within
thirty (30) days after ▇▇▇▇ gives Client written notice describing the default.
Upon termination in accordance with this Section 14.2, ▇▇▇▇ may:
(i) declare all amounts owed to ▇▇▇▇ by Client to be immediately due and
payable;
(ii) require that Client cease any further use of the Products and
immediately return the Products and any copies to ▇▇▇▇; and
(iii) cease performance of all of ▇▇▇▇'▇ obligations under this Agreement
without liability to Client.
14.3 Client may terminate this Agreement and the License granted to Client if
Client is in compliance with this Agreement and ▇▇▇▇ is in material default of
any provision of this Agreement and such default has not been cured within
thirty (30) days after Client gives ▇▇▇▇ written notice describing the default.
Upon such termination:
(i) Client shall pay ▇▇▇▇'▇ outstanding invoices that do not pertain to
▇▇▇▇'▇ default, but Client shall have no further payment obligations to
▇▇▇▇ under this Agreement; and
(ii) ▇▇▇▇ may require that Client cease any further use of the Products
and immediately return the Products and any copies to ▇▇▇▇.
14.4 Upon termination of this Agreement by ▇▇▇▇ or Client, Sections 3.0, 4.0,
5.0, 6.0, and 12.0 through 26.0 of this Agreement shall survive.
15.0 Limitations of Liability.
15.1 AFTER THE PARTIES HAVE SIGNED THIS AGREEMENT, CLIENT'S EXCLUSIVE REMEDIES
FOR PRODUCT RELATED MATTERS SHALL BE AS DESCRIBED IN THIS AGREEMENT, SUBJECT TO
THE LIMITATIONS OF SECTION 15.0.
15.2 ▇▇▇▇ SHALL NOT BE LIABLE FOR ANY EXPENSE OR DAMAGE ARISING OUT OF ANY
ERASURE, DAMAGE OR DESTRUCTION OF FILES, DATA OR PROGRAMS. CLIENT SHALL BE
RESPONSIBLE FOR MAKING BACKUP COPIES OF FILES, DATA, AND PROGRAMS.
15.3 SAVE AS PROVIDED IN SECTION 13.2, IN NO EVENT SHALL ▇▇▇▇ OR ITS THIRD
PARTIES BE LIABLE FOR SPECIAL, INDIRECT, THIRD PARTY, OR CONSEQUENTIAL DAMAGES,
INCLUDING LOST PROFITS. NEITHER PARTY SHALL SEEK, OR OTHERWISE APPLY FOR, ANY
PUNITIVE OR EXEMPLARY DAMAGES.
15.4 EXCEPT ONLY FOR INDEMNIFICATION BY ▇▇▇▇ UNDER SECTION 13.1 ABOVE, ▇▇▇▇'▇
MAXIMUM AGGREGATE LIABILITY FOR DAMAGES TO CLIENT OR OTHERS SHALL BE LIMITED TO
ACTUAL DIRECT MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED (A) THE LICENSE FEE PAID
BY CLIENT FOR THE PRODUCTS SUBJECT TO THE DAMAGE CLAIM IF THE CLAIM OCCURS
DURING THE FIRST YEAR OF THIS AGREEMENT; OR (B) SIXTY (60) PERCENT OF THE
LICENSE FEES PAID BY CLIENT FOR THE PRODUCTS SUBJECT TO THE DAMAGE CLAIM IF THE
CLAIM OCCURS AFTER THE FIRST YEAR OF THIS AGREEMENT.
15.5 CLIENT ACKNOWLEDGES THAT THE LIMITATIONS ON LIABILITY IN THIS SECTION 15
ARE REASONABLE. THE REMEDIES PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE. EXCEPT
ONLY FOR ACTIONS BY ▇▇▇▇ TO PROTECT INTELLECTUAL PROPERTY RIGHTS OR FOR BREACH
OF SECTION 16.0, NEITHER PARTY SHALL SEEK, OR OTHERWISE APPLY FOR, ANY EQUITABLE
REMEDIES.
16.0 Assignment.
Neither ▇▇▇▇ nor Client shall assign this Agreement or transfer, by operation
of law or otherwise, any of its respective rights or obligations under this
Agreement (including, without limitation, by a change in the majority ownership
or control of Client) without the prior written consent of the other, such
consent not be unreasonably withheld nor delayed. Any assignment or transfer
in violation of this Section 16.0 shall be void.
17.0 Waiver.
No term or provision of this Agreement shall be deemed waived and no breach
shall be deemed excused, unless such waiver is in writing and signed by the
Party claimed to have waived.
18.0 Excusable Delay.
Neither ▇▇▇▇ nor Client shall be deemed to be in default of any provision of
this Agreement or for any failure in performance, resulting from acts or events
beyond the reasonable control of ▇▇▇▇ or Client, as the case may be. For
purposes of this Agreement, such acts shall
include, but not be limited to, acts of God, civil or military authority, civil
disturbance, war, strikes, fires, other catastrophes, or other such major events
beyond ▇▇▇▇'▇ or Client's reasonable control. This Section 18.0 shall not delay
or excuse Client's payment obligations.
19.0 Governing Law and Dispute Resolution.
This Agreement is governed by and construed in all respects in accordance with
the laws of the State of Colorado, USA. (without regard to conflicts of laws
principles), excluding the United Nations Convention on Contracts for the
International Sale of Goods. Except only for disputes for which injunctive
relief is sought to prevent the unauthorized use or disclosure of the Products,
any disputes between Client and ▇▇▇▇ (which are not otherwise resolved by the
Parties) shall be submitted to binding arbitration in Denver, Colorado, in
accordance with the then prevailing rules of the American Arbitration
Association. Any action, to confirm an arbitration award or any other legal
action related to this Agreement, the Products or other dispute between Client
and ▇▇▇▇, shall be instituted only in a federal or state court in the State of
Colorado, and Client and ▇▇▇▇ shall submit to personal jurisdiction of these
courts in any such legal action. ▇▇▇▇ and Client each waive their right to a
trial by jury for any disputes between the Parties. The prevailing Party, as
determined by a court or in arbitration, shall be entitled to collect from the
other Party, the prevailing Party's reasonable legal fees and costs in
connection with the enforcement of this Agreement.
20.0 Relationship
The relationship of ▇▇▇▇ and Client under this Agreement will at all times
remain independent. Client is not an agent, franchisee, partner or joint
venture of ▇▇▇▇. Client is not authorized to enter into or execute any contract
on behalf of or otherwise obligate ▇▇▇▇ in any matter.
21.0 Severance and Interpretation.
If any provision of this Agreement is found to be unenforceable, such provision
shall be deemed to be deleted or narrowly construed to such extent as is
necessary to make it enforceable and this Agreement shall otherwise remain in
full force and effect. If an ambiguity or question of intent arises, this
Agreement shall be construed as if drafted jointly by the Parties and no
presumption or burden of proof shall arise favoring or disfavoring either Party
by virtue of authorship of any of the provisions of this Agreement.
22.0 Time Limitation.
Except for actions for non-payment or for breach of ▇▇▇▇'▇ or its Third Parties'
Intellectual Property Rights, no action arising out of or relating to this
Agreement may be brought later than two (2) years after the cause of action
became known to the injured Party.
23.0 Notices.
All notices required or permitted under this Agreement and all requests for
approvals, consents, and waivers must be delivered by a method providing for
proof of delivery. A confirmed facsimile transmission shall be deemed to
provide proof of delivery. Any notice or request shall be deemed to have been
given on the date of delivery. Notices and requests must be delivered to the
Parties at the addresses on the first page of this Agreement until a different
address has been designated by notice to the other Party.
24.0 Non-Solicitation of Employees.
Neither Party shall directly solicit the services or employment of any employee
or agent of the other Party for a period beginning at the Effective Date and
ending twelve (12) months after the last date of initial delivery of any of the
Products as set forth in the Exhibits (as of the Effective Date).
25.0 Entire Agreement.
This Agreement and the Exhibits listed below and referred to herein, together
with any addenda signed by the Parties (collectively, the "Agreement"),
constitute the entire agreement between ▇▇▇▇ and Client with respect to the
Products, Support, and other subject matter of this Agreement, and may only be
modified by a written amendment or addendum signed by both ▇▇▇▇ and Client. No
employee, agent, or other representative of either ▇▇▇▇ or Client has authority
to bind the other with regard to any statement, representation, warranty, or
other expression unless it is specifically included within the express terms of
this Agreement or a written addendum signed by both ▇▇▇▇ and Client. All
purchase orders, prior agreements, representations, statements, proposals,
negotiations, understandings, and undertakings with respect to the subject
matter of this Agreement are superseded by this Agreement.
For ▇▇▇▇ INTERACTIVE SERVICES, INC. For BRITISH TELECOMMUNICATIONS PLC
___________________________________ ___________________________________
(Authorized Signature) (Authorized Signature)
___________________________________ ___________________________________
(Printed Name) (Printed Name)
___________________________________ ___________________________________
(Title) (Title)
___________________________________ ___________________________________
(Date) (Date)
SCHEDULES and EXHIBITS : Attached
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1. SCHEDULE A Product Sites and Information
Exhibit 1 License Fee and Other Charges
2. SCHEDULE B Maintenance and Support Agreement
3. SCHEDULE C Web Site Hosting Agreement
4. SCHEDULE D Professional Services Agreement
Schedule A
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Products and Product Sites
Products: The Products subject to this Agreement are : (a) AcceIX Site Builder
v2.0.2.18; (b) AcceIX Request v1.0; and (c) AcceIX Notify v1.0.
Number of SMEs (small/medium enterprises that subscribe to Client's services
using AccelX technology): 1,000. This number represents the total number of
SMEs that are subscribers to services using AccelX technology at any given
time, regardless of whether they are subscribing to services using one, two or
all three products listed above.
Location of Use: The allowable number of SMEs may be used by Client or its
affiliated companies.
EXHIBIT A-1
Pricing and Business Terms
Initial License Fee for 1000 SMEs is US$75,000.
If Client decides to purchase an additional quantity of 2,500 SMEs prior to
September 1, 2000, those licenses will be offered for US$175,000.
If Client elects to purchase additional blocks of AccelX Site Builder, AccelX
Notify or AccelX Request prior to July 1, 2002, Client may take advantage of the
following price structure and pay ▇▇▇▇ additional License Fees for each of these
products as follows:
(a) Licenses for SMEs = US$6.00 per SME per month per Product
- Sold in quantities of 500
- Sold on the basis of a minimum commitment of one year
(b) If Client wishes to make a two-year commitment to ▇▇▇▇ for any additional
block of 500 or more SMEs, Client may take advantage of a 25% discount on
the cost of the first year fees.
Prices stated here are available to Client for a period of two years from the
effective date of this Agreement.
If Client decides not to take advantage of these discounts, but decides to
increase the Number of SMEs after July 1, 2002, Client shall negotiate new
pricing based on ▇▇▇▇'▇ then current License Fees.
Schedule B
▇▇▇▇ INTERACTIVE SERVICES
MAINTENANCE AND SUPPORT AGREEMENT
THIS MAINTENANCE AND SUPPORT AGREEMENT ("Agreement") between ▇▇▇▇
Interactive Services, Inc. ("▇▇▇▇"), a Colorado corporation with principal
offices located at ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and the
"Client" identified in the attached Master Software License Agreement (the
"Master Agreement") dated as of June 30, 2000 is effective as of July 1 2000
("Effective Date"). ▇▇▇▇ and Client are referred to collectively as "the
Parties".
Background
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WHEREAS, Client has licensed the certain Products from ▇▇▇▇ and Client
desires to have ▇▇▇▇ maintain and support the Products during the term of the
Master Agreement.
WHEREAS, ▇▇▇▇ is willing to offer maintenance and support for the Product
during the term of the Master Agreement, subject to the terms of this Agreement.
In consideration of the foregoing, the Parties agree as follows:
1. Definitions
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Capitalized terms used but not defined in this Agreement shall have the
meanings ascribed to them in the Master Agreement.
2. ▇▇▇▇'▇ Obligations
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Subject to payment by Client of the Support Fee (in United States currency)
identified in Exhibit B-1, ▇▇▇▇ shall provide the following Maintenance and
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Support Services for the Products.
(a) Problem reporting, tracking and monitoring and communications to
Client by electronic mail via the Internet;
(b) Reasonable telephone support (i) 24 hours per day, 7 days per week if
Client elects to have ▇▇▇▇ provide its hosting services and (ii) 7:00 a.m. to
7:00 p.m. (Mountain Standard Time in the USA) if Clients elects not to have ▇▇▇▇
provide its hosting services.
(c) Periodic software Modifications or Enhancements publicly offered by
▇▇▇▇ during the term of this Agreement.
(d) Shall work diligently during normal business hours (subject to Section
2(b) above) to promptly resolve defects and errors that have been replicated by
or for ▇▇▇▇ in the Products and Documentation in accordance with the following
schedule, it being understood that the closure periods commence when the problem
has been mutually verified:
ERROR PRIORITY (1) RESPONSE (2) CLOSURE (3)
Emergency (A) 24 hours 7 days
Critical (B) 2 days 14 days
Non-Critical (C) 30 days Next Update
(1) Priority:
-A- Catastrophic product or module failures that do not have a
viable detour or work around available. Catastrophic failure shall be deemed to
include failures which cause an interruption of service or seriously impair the
functionality of the Products.
-B- Problems that have been substantiated as a serious
inconvenience to Client or its customers. This includes any priority A failure
for which a viable detour or work around is available.
-C- All other problems which Client or its customers can easily
avoid or detour for which there is no urgency for a resolution.
(2) Response: Response consists of providing, as appropriate, one of
the following to Client: an existing correction; a new correction; a viable
detour or work around; a request for more information to complete analysis of
the problem, or a plan on how the problem will be corrected.
(3) Closure: Closure consists of providing a final correction or work
around of the problem including Modifications of the Products and, to the extent
reasonably possible, revised or new documentation as necessary, it being
understood that documentation may, to the extent reasonable, be completed after
the applicable closure date.
(e) Shall furnish the maintenance and technical support described above,
for the current release level of the Products and the previous release level
thereof for a period up to 6 months past its date of discontinuation.
(f) ▇▇▇▇ shall have the right to outsource its obligations under this
Agreement to a third party, provided that ▇▇▇▇ shall remain responsible for its
obligations under this Agreement that are performed by such third party.
3. Client Obligations
------------------
Client agrees:
(a) that the Designated Contact person(s) identified in Exhibit B-1 (or
-----------
such other replacement individual as Client may designate) shall be the sole
contact for the coordination and receipt of the Maintenance and Support Services
set forth in Section 2 of this Agreement, which person shall be knowledgeable
---------
and trained in the Products;
(b) to maintain for the term of this Agreement, an electronic mail link-up
with ▇▇▇▇ via the Internet;
(c) to provide reasonable supporting data to and aid in the identification
of reported problems;
(d) to treat all periodic software Modifications delivered under this
Agreement in accordance with the terms of the Master Agreement between ▇▇▇▇ and
Client under which Client obtained rights to the Products.
4. Term and Termination
--------------------
4.1 For each Product covered by this Agreement, the Maintenance and
Support Services will begin on the Effective Date and will apply to such Product
for an initial term of thirteen (13) months unless an alternative period is
agreed to in writing. The initial term may be extended or renewed at Client's
option for a one-year increment. At the conclusion of the one year extension,
if applicable, the term of this Agreement may be further extended at Client's
election, provided that any such extension shall be in accordance with ▇▇▇▇'▇
policies and pricing in effect at the time of any such extension. Client shall
give ▇▇▇▇ at least 60 days written notice if, during the initial term or any
renewed period, Client decides not to renew Maintenance and Support.
4.2 If either party is in default of its obligations hereunder and such
default continues for thirty (30) days following receipt of written notice from
the other party, the non-breaching party, in addition to any other remedies it
may have, may terminate this Agreement. In such case, the non-prevailing party
will pay the prevailing party all costs and expenses including reasonable
attorneys' fees incurred by the prevailing party in exercising any of its rights
or remedies.
4.3 This Agreement shall automatically terminate upon the termination of
the Master Agreement. If this Agreement is terminated pursuant to this Section
4.3, the Parties will be obligated to comply with all post-termination
obligations under the Master Agreement and any outstanding Support Fees and
other charges, if any, shall become immediately due and payable.
5. Charges, Taxes and Payments
---------------------------
5.1 The Support Fee set forth on Exhibit B-1 is payable upon the execution
-----------
of this Agreement or prior to the commencement of any additional one year
extension term.
5.2 The charges specified in this Agreement are exclusive of all taxes
(domestic or foreign), levies and assessments. Client agrees to bear and be
responsible for the payment of all such taxes, levies and assessments imposed on
Client or ▇▇▇▇ arising out of this Support Agreement excluding any income tax
imposed on ▇▇▇▇ by any governmental body.
5.3 Client agrees that ▇▇▇▇ will have the right to charge in accordance
with ▇▇▇▇ then current policies for any services resulting from Client's
modification of the Products or Client's failure to utilize the current release
of the Products provided by ▇▇▇▇.
6. Warranty, Limitation of Liability and Indemnification
-----------------------------------------------------
6.1 EXCEPT AS STATED IN THIS AGREEMENT, THERE ARE NO EXPRESS OR IMPLIED
WARRANTIES RESPECTING THIS MAINTENANCE AND SUPPORT AGREEMENT OR THE SERVICES
PROVIDED HEREUNDER (INCLUDING THE FIXING OF ERRORS THAT MAY BE CONTAINED IN THE
APPLICABLE SOFTWARE), INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE WARRANTIES SET FORTH
IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT
TO SUCH SERVICES WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED.
6.2 ▇▇▇▇ WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE DUE IN
WHOLE OR IN PART TO ANY CAUSE BEYOND ▇▇▇▇'▇ REASONABLE CONTROL. IN NO EVENT
SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR (A) ANY SPECIAL, INDIRECT,
INCIDENT OR CONSEQUENTIAL DAMAGES, (B) ANY DAMAGES RESULTING FROM LOSS OF USE,
DATA OR PROFITS OR (C) ANY CLAIM THAT AROSE MORE THAN ONE YEAR PRIOR TO
INSTITUTION OF SUIT THEREON, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL
THEORY.
6.3 Client will hold ▇▇▇▇ and its directors, officers, employees,
representatives and agents, (collectively, "▇▇▇▇ Representatives") harmless
from, and defend and indemnify ▇▇▇▇ and ▇▇▇▇ Representatives against, any and
all claims, losses, damages and expenses, including reasonable attorneys' fees,
arising from a third party claim against ▇▇▇▇ or ▇▇▇▇ Representatives to the
extent that such third party claim is based on the negligence or willful
misconduct of Client or its agents or representatives.
6.4 ▇▇▇▇ will hold Client and its directors, officers, employees,
representatives and agents (collectively, "Client Representatives") harmless
from, and defend and indemnify Client and Client Representatives against, any
and all claims, losses, damages and expenses, including reasonable attorneys'
fees, arising from a third party claim against Client or Client Representatives
to the extent that such third party claim is based on: (a) the negligence or
willful misconduct of ▇▇▇▇ or its ▇▇▇▇ Representatives or (b) claims of
infringement of Intellectual Property Rights against Client or Client
Representatives for the authorized use of the Products.
6.5 If a third party asserts a claim that is eligible for indemnification
under Sections 6.3 or 6.4: (a) the indemnified party will promptly notify the
indemnifying party of the suit or claim; (b) the indemnified party will give the
indemnifying party sole authority to defend or settle the suit or claim,
provided that the indemnifying party does not agree to a settlement of the suit
or claim unless the settlement is reasonably acceptable to the indemnified
party; (c) the indemnified party will provide to the indemnifying party all
information in its control concerning the suit or claim; and (d) the indemnified
party will reasonably cooperate with the defense of the suit or claim. The
indemnification obligations under Sections 6.3 and 6.4 are subject to and
conditioned upon compliance with this Section 6.5 by the indemnified party.
7. General
-------
7.1 The waiver by either party of a breach of or a default under any
provision of this Agreement by the other party shall not be construed as a
waiver of any subsequent breach of the same or any other provision of this
Agreement nor shall any delay or omission on the part of either party to
exercise or avail itself of any right or remedy it has or may have hereunder
operate as a waiver of any right or remedy by such party.
7.2 This Agreement contains the full understanding of the parties with
respect to the maintenance and support of the Products and supersedes all prior
understandings and writings relating thereto. No waiver, consent modification,
amendment or change of the terms of this Support Agreement shall be binding
unless in writing and signed by ▇▇▇▇ and Client. If the terms and conditions of
this Agreement are inconsistent with, or contrary to, the terms and conditions
of the Client License Agreement, the terms and conditions of the License
Agreement shall be controlling.
7.3 This Agreement shall be governed by the laws of the State of Colorado.
7.4 Any notice or other communication in connection with this Maintenance
and Support Agreement shall be furnished in writing and shall be effective upon
receipt.
7.5 Neither Client nor ▇▇▇▇ will be deemed to be in default of any
provision of this Agreement or for any failure in performance, resulting from
acts or events beyond the reasonable control of Client or ▇▇▇▇, as the case may
be including, without limitation, acts of God, civil or military authority,
civil disturbance, war, strikes, fires, other catastrophes, telecommunication
outages, equipment malfunctions or other such major events beyond Client's or
▇▇▇▇'▇ reasonable control.
▇▇▇▇ Interactive Services, Inc: Client:___________________________
By:____________________________ By:_______________________________
Name:__________________________ Name:_____________________________
Title:_________________________ Title:____________________________
Date:__________________________ Date:_____________________________
12
EXHIBIT B-1
MAINTENANCE AND SUPPORT ATTACHMENT
Support Fee(s): The Client will pay ▇▇▇▇ the following Support Fee:
--------------
(1) Renewable Maintenance Fee = US$15,000 for Initial purchase of 1,000 SMEs,
payable pursuant to Section 5.1 of this Agreement..
(2) Maintenance Fee for Additional purchases as described in Schedule A,
Exhibit 1 shall be 20% of the License Fees payable on a monthly basis.
Commencement Date: July 1, 2000.
-----------------
Client Designated Contacts:
Primary Contact:_________________________
Phone number:____________________________
E-Mail address:__________________________
Secondary Contact:_______________________
Phone number:____________________________
E-Mail address:__________________________
13
Schedule C
▇▇▇▇ INTERACTIVE SERVICES
HOSTING AGREEMENT
THIS WEB SITE HOSTING AGREEMENT ("Agreement") between ▇▇▇▇ Interactive
Services, Inc. ("▇▇▇▇"), a Colorado corporation with principal offices located
at ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and "Client" identified in
the attached Master Software License Agreement (the "Master Agreement") dated as
of June 30, 2000, is effective as of August 1, 2000 ("Effective Date"). ▇▇▇▇
and Client are referred to collectively as "the Parties."
Background
----------
WHEREAS, Client has licensed the certain Products from ▇▇▇▇ and Client
desires to have ▇▇▇▇ host Client's web site (the "Web Site") under the terms of
this Agreement.
WHEREAS, ▇▇▇▇ is willing to host the Web Site under the terms of this
Agreement.
In consideration of the foregoing, the Parties agree as follows:
1. Definitions
Capitalized terms used but not defined in this Agreement shall have the
meanings ascribed to them in the Master Agreement.
2. Hosting Services
2.1 Hosting Commitment by ▇▇▇▇. Commencing on August 1, 2000, through October
--------------------------
31, 2000 (the "Initial Term"), and subject to the terms of this Agreement and
the Master Agreement, ▇▇▇▇ will host on ▇▇▇▇ servers, operate, and allow
continuing access to the ▇▇▇▇ Hosting Platform and licensed Products by and for
the benefit of Client and Client Customers until the earlier of (a) the
expiration or termination of this Agreement or (b) the termination of the Master
Agreement. ▇▇▇▇ may at any time after October 31, 2000 require Client to take
over the hosting of the web sites, provided that ▇▇▇▇ gives Client 30 days
advance notice.
2.2 Third Party Costs. Client will be responsible for the costs paid to third
-----------------
parties for third party content, technology and services that Client
specifically requests be integrated into Client's Web Site.
2.3 Optional Hosting by Client. Subject to the terms of Section 2.1, ▇▇▇▇ will
--------------------------
continue to provide hosting services in accordance with the terms of this
Agreement after the Initial Term, but only if Client requests that ▇▇▇▇ do so.
In the event that Client does not elect to have ▇▇▇▇ continue to provide hosting
services after the Initial Term and elects to take over the hosting of its Web
Site, ▇▇▇▇ will provide Client one copy of the Object Code to the ▇▇▇▇ Hosing
Platform to enable Client to commence and continue, at its expense, the hosting
and operation of the Web Site for use in accordance with the License granted
under the Master Agreement. Client shall have the right to make one copy of the
Object Code for archival purposes. Client shall also have the right to
authorize a third party Client partner to host the Web Site provided that it
obtains the prior written consent of ▇▇▇▇ which will not be withheld if (a) ▇▇▇▇
has the resources available that are required by such Client partner and ▇▇▇▇ is
reimbursed on a time and materials basis, (b) ▇▇▇▇ is not required to provide
support directly to such Client partner, (c) ▇▇▇▇ does not reasonably believe
that the revenue received by ▇▇▇▇ under this Agreement will be negatively
impacted and (d) such Client partner agrees to maintain the confidentiality of
any ▇▇▇▇ Confidential Information.
C-14
2.4 Hosting Fee. During the Term of this Agreement, Client shall pay ▇▇▇▇ the
------------
hosting fees described in Exhibit C-1 attached hereto. Client shall be
responsible for all fixed and cumulative charges. In addition to ▇▇▇▇'▇ other
remedies, if Client fails to pay ▇▇▇▇ any amounts when due under this Agreement,
Client will pay interest on that amount at the rate of 1.5% per month or such
lesser maximum rate of interest permitted under applicable law. All fees or
other payments required under this Agreement shall be paid by Client in United
Sates currency.
2.5 Reference to "Powered by" ▇▇▇▇. So long as either ▇▇▇▇ or Client or its
------------------------------
partner is hosting and operating the ▇▇▇▇ Hosting Platform for the benefit of
Client or Client's Customers, (a) Client shall include a reference in the
management interfaces for Client customers that the web site management tools
are "powered by" ▇▇▇▇ or other mutually agreed ▇▇▇▇ branding; and (b) Client
shall include a ▇▇▇▇ icon in the area of the Client site where Client business
partners are listed.
3. Warranty and Disclaimer
▇▇▇▇ provides no warranty regarding the bandwith or any information,
services or products provided through, in connection with, or located on its
server or computer systems. ▇▇▇▇ HEREBY DISCLAIMS ANY AND ALL WARRANTIES,
INCLUDING WITHOUT LIMITATION, (A) ANY WARRANTY AS TO BANDWITH, AVAILABILITY,
ACCURACY OR CONTENT INFORMATION; AND (B) ANY WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
4. Limited Liability
Any liability of ▇▇▇▇, including without limitation, any liability for
damages caused or allegedly caused by failure of performance, error, omission,
interruption, deletion, defect, delay in operation or transmission,
communication, theft or destruction of, or unauthorized access to, alteration or
use of records, whether for breach of contract, tortuous behavior, negligence,
or under any other cause of action, shall be limited to the amount paid by or on
behalf of Client to ▇▇▇▇. IN NO EVENT ▇▇▇▇ ▇▇▇▇ BE LIABLE FOR INDIRECT DAMAGES,
INCLUDING WITHOUT LIMITATION, CONSEQUENTIAL DAMAGES OR LOST PROFITS.
5. General
5.1 The waiver by either party of a breach of or a default under any
provision of this Agreement by the other party shall not be construed as a
waiver of any subsequent breach of the same or any other provision of this
Agreement nor shall any delay or omission on the part of either party to
exercise or avail itself of any right or remedy it has or may have hereunder
operate as a waiver of any right or remedy by such party.
5.2 This Agreement contains the full understanding of the parties with
respect to the maintenance and support of the Products and supersedes all prior
understandings and writings relating thereto. No waiver, consent modification,
amendment or change of the terms of this Support Agreement shall be binding
unless in writing and signed by ▇▇▇▇ and Client. If the terms and conditions of
this Agreement are inconsistent with, or contrary to, the terms and conditions
of the Client License Agreement, the terms and conditions of the License
Agreement shall be controlling.
5.3 This Agreement shall be governed by the laws of the State of Colorado.
5.4 Any notice or other communication in connection with this Maintenance
and Support Agreement shall be furnished in writing and shall be effective upon
receipt.
C-15
5.5 Neither Client nor ▇▇▇▇ will be deemed to be in default of any
provision of this Agreement or for any failure in performance, resulting from
acts or events beyond the reasonable control of Client or ▇▇▇▇, as the case may
be including, without limitation, acts of God, civil or military authority,
civil disturbance, war, strikes, fires, other catastrophes, telecommunication
outages, equipment malfunctions or other such major events beyond Client's or
▇▇▇▇'▇ reasonable control.
▇▇▇▇ Interactive Services, Inc: Client:________________________
By:____________________________ By:____________________________
Name:__________________________ Name:__________________________
Title:_________________________ Title:_________________________
Date:__________________________ Date:__________________________
C-16
EXHIBIT C-1
HOSTING FEES AND CHARGES
Hosting
-------
▇▇▇▇ agrees to host the web sites created by Client for the initial 5000
SMEs for a period of three (3) months (August 1, 2000 through October 31, 2000)
---------------------------------------
at ▇▇▇▇'▇ hosting fee of US$2,500 per month. As a concession to Client, and as
an inducement to enter into this Agreement, ▇▇▇▇ has agreed to waive, and hereby
waives, the three-month hosting fee of US$7,500. Client shall pay no fee for the
hosting services to be performed by ▇▇▇▇ during the three month period ending on
October 31, 2000 ("End Date"). If, after the End Date, Client desires ▇▇▇▇ to
continue to host the web sites created by Client, Client shall pay ▇▇▇▇ a
hosting fee of US$2,500 per month for the first 5000 SMEs and US$0.30 per SME
per month for each additional SME between 5001 - 25,000. If Client exceeds
25,000 SMEs, Client and ▇▇▇▇ shall negotiate the hosting fee for each additional
SME over 25,000 SMEs.
C-17
Schedule D
WEBB INTERACTIVE SERVICES INC.
PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") between ▇▇▇▇ Interactive
Services, Inc. ("▇▇▇▇"), a Colorado corporation with principal offices located
at ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and the "Client" identified
in the attached Master Software License Agreement (the "Master Agreement") dated
as of June 30, 2000, is effective as of June 30 2000 ("Effective Date"). ▇▇▇▇
and Client are referred to collectively as the "Parties."
Background
----------
WHEREAS, Client has licensed certain Products from ▇▇▇▇ and Client desires
to have ▇▇▇▇ provide professional services related to the Products during the
term of the Master Agreement.
WHEREAS, ▇▇▇▇ is willing to offer professional services related to the
Products during the term of the Master Agreement, subject to the terms of this
Agreement.
Agreement
---------
In consideration of the foregoing, the Parties agree as follows:
1. Definitions. Capitalized terms used but not defined in this Agreement
-----------
shall have the meanings ascribed to them in the Master Agreement.
2. ▇▇▇▇'▇ Obligations
------------------
2.1 ▇▇▇▇ shall perform for Client the professional services (the
"Services") specified in one or more Exhibits (in the form of Statement of Work
signed by both parties), each of which will be made a part of this Agreement.
In the event of a conflict between any term of this Agreement and an Exhibit,
the terms of the Exhibit shall prevail.
2.2 Changes within the scope of the Services shall be made only in a
writing executed by authorized representatives of both parties. ▇▇▇▇ shall have
no obligation to commence work in connection with any change until the fee
and/or schedule impact of the change is agreed upon by the parties in writing.
2.3 ▇▇▇▇ reserves the right to determine which of its personnel shall be
assigned to perform the Services, and to replace or reassign such personnel
during the term hereof; provided, however, that it will, subject to scheduling
and staffing considerations, attempt to honor Client's request for specific
individuals.
2.4 ▇▇▇▇ shall have the right to outsource its obligations under this
Agreement to a third party, provided that ▇▇▇▇ shall remain responsible for its
obligations under this Agreement that are performed by such third party.
3. Client Obligations
------------------
3.1 In connection with ▇▇▇▇'▇ provision of the Services, Client shall
perform all tasks and assume all responsibilities not expressly described as the
Services and, in particular, shall perform those tasks and assume those
responsibilities specified in the applicable Exhibit ("Client
Responsibilities"). The Exhibit shall also contain any assumptions related to
the Services. Client understands that ▇▇▇▇'▇ performance is dependent on
Client's timely and effective satisfaction of Client Responsibilities hereunder
and timely decisions and approvals by Client. ▇▇▇▇ shall be entitled to rely on
all decisions and approvals of the Client in connection with the Services.
Changes in decisions and approvals are subject to the provisions of Section 2.2,
above.
3.2 In addition to any particular items which may be specified in the
Exhibit, when required by ▇▇▇▇, Client shall supply on-site ▇▇▇▇ personnel with
suitable office space, desks, storage, furniture, and other normal office
equipment support, including adequate telephone service, postage, copying,
typing, and general office supplies which may be necessary in connection with
▇▇▇▇'▇ performance of the Services.
4. Term and Termination
--------------------
4.1 Either party may at any time terminate this Agreement by giving thirty
(30) days' written notice of termination to the other party. In the event of
such termination, Client shall pay ▇▇▇▇ for all Services rendered and
C-18
expenses incurred by ▇▇▇▇ prior to the date of termination.
4.2 If either party is in default of its obligations hereunder and such
default continues for thirty (30) days following receipt of written notice from
the other party, the non-breaching party may terminate this Agreement
immediately, in addition to any other remedies it may have. In such case, the
non-prevailing party will pay the prevailing party (as determined by a court or
in arbitration) all costs and expenses including reasonable attorneys' fees
incurred by the prevailing party in exercising any of its rights or remedies.
4.3 This Agreement shall automatically terminate upon the termination of
the Master Agreement. If this Agreement is terminated pursuant to this Section
4.3, the Parties will be obligated to comply with all post-termination
obligations under the Master Agreement and any outstanding fees and other
charges, if any, shall become immediately due and payable.
5. Charges, Taxes and Payments
---------------------------
5.1 Client shall pay ▇▇▇▇ for the Services as defined in the Exhibit D-1
at ▇▇▇▇'▇ then current rates for professional services.
5.2 Unless the Parties agree otherwise in writing, Client shall pay the
amounts payable to ▇▇▇▇ hereunder within thirty (30) days of receipt of invoices
submitted by ▇▇▇▇. Any invoice remaining unpaid for more than thirty (30) days
from receipt shall accrue interest at a rate of the lesser of one and one-half
(1.5%) percent per month or the highest rate allowed by law.
5.3 Unless provided otherwise in an Exhibit, ▇▇▇▇ shall be reimbursed by
Client for all reasonable expenses incurred by ▇▇▇▇ in the performance of the
Services, including, but not necessarily limited to, travel and lodging
expenses, communications charges and supplies.
5.4 The charges specified in this Agreement are exclusive of all taxes
(domestic or foreign), levies and assessments. Client agrees to bear and be
responsible for the payment of all such taxes, levies and assessments imposed on
Client or ▇▇▇▇ arising out of this Agreement excluding any income tax imposed on
▇▇▇▇ by a governmental body.
6. Confidential Information.
------------------------
6.1 "Confidential Information" means any trade secret or other information
or data of a proprietary or confidential nature belonging to either party,
including but not limited to: (a) technical or developmental information
(including associated documentation); (b) marketing or pricing information; (c)
business practices or relationships; (d) performance results or benchmark test
results of all or any portion of the Products; (e) designs, ideas, concepts,
inventions, technical know how, software programs, program flow charts, file
layouts, and all record bearing media containing or disclosing such information.
Confidential Information shall not include information of one party that: (i) is
or becomes lawfully available to the public through no act or omission of the
other party; (ii) is in the other party's lawful possession prior to the
disclosure and was not obtained by the other party either directly or indirectly
from the disclosing party; (iii) is lawfully disclosed to the other party by a
third party without restriction on disclosure or (iv) is independently developed
by the other party.
6.2 Neither party shall use or disclose to any person, either during the
term or after the termination of this Agreement, any Confidential Information
owned by the other party, except as expressly permitted pursuant to the terms of
this Agreement or as required in response to a valid order or requirement of a
court or other governmental body having competent jurisdiction provided,
however, that the party proposing to so disclose first gives prior written
notice of such proposed disclosure to the other party.
7. Non-Solicitation.
----------------
Neither party shall solicit for employment, whether directly or indirectly
through an associated or affiliated company or subsidiary or otherwise, employ,
engage or contract from the date of this Agreement or any Exhibit and for a
period of two (2) years thereafter, any person who is employed or contracted by
the other party during the duration of this Agreement.
8. Proprietary Materials and Work Product.
--------------------------------------
8.1 Notwithstanding Section 6.0 of the Master Software License Agreement,
Intellectual Property Rights hereto the parties acknowledge and agree
that all work product (the "Work") developed in providing the
C-19
Services or resulting from providing the Services shall become and
remain the exclusive property of ▇▇▇▇. Other than the license granted
to Client pursuant to the Master Agreement, no right, title or
interest in all or any portion of the Work, is conveyed or assigned to
Client either expressly or by implication by virtue of this Agreement
including any patents, copyrights, trade secrets, trademarks, trade
names or other intellectual property (collectively, the "Intellectual
Property Rights"). Upon written request by ▇▇▇▇, Client shall properly
execute such assignments, bills of sale or other documents necessary
to confirm, assign or transfer in favor of ▇▇▇▇, any Intellectual
Property Rights in the Work created, developed or discovered by
Client, its employees or consultants in assisting ▇▇▇▇ in the
provision of the Services.
8.2 Nothing in this Agreement shall preclude ▇▇▇▇ from developing for
itself, or for others, materials which are competitive with those
produced as a result of the Services provided hereunder, irrespective
of their similarity to items which may be delivered to Client pursuant
to this Agreement.
9. Warranty, Limitation of Liability and Indemnification
-----------------------------------------------------
9.1 EXCEPT AS STATED IN THIS AGREEMENT, THERE ARE NO EXPRESS OR IMPLIED
WARRANTIES RESPECTING THIS MAINTENANCE AND SUPPORT AGREEMENT OR THE SERVICES
PROVIDED HEREUNDER (INCLUDING THE FIXING OF ERRORS THAT MAY BE CONTAINED IN THE
APPLICABLE SOFTWARE), INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE WARRANTIES SET FORTH
IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT
TO SUCH SERVICES WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED.
9.2 ▇▇▇▇ WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE DUE IN
WHOLE OR IN PART TO ANY CAUSE BEYOND ▇▇▇▇'▇ REASONABLE CONTROL. IN NO EVENT
SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR (A) ANY SPECIAL, INDIRECT,
INCIDENT OR CONSEQUENTIAL DAMAGES, (B) ANY DAMAGES RESULTING FROM LOSS OF USE,
DATA OR PROFITS OR (C) ANY CLAIM THAT AROSE MORE THAN ONE YEAR PRIOR TO
INSTITUTION OF SUIT THEREON, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL
THEORY.
9.3 Client will hold ▇▇▇▇ and its directors, officers, employees,
representatives and agents, (collectively, "▇▇▇▇ Representatives") harmless
from, and defend and indemnify ▇▇▇▇ and ▇▇▇▇ Representatives against, any and
all claims, losses, damages and expenses, including reasonable attorneys' fees,
arising from a third party claim against ▇▇▇▇ or ▇▇▇▇ Representatives to the
extent that such third party claim is based on the negligence or willful
misconduct of Client or its agents or representatives.
9.4 ▇▇▇▇ will hold Client and its directors, officers, employees,
representatives and agents (collectively, "Client Representatives") harmless
from, and defend and indemnify Client and Client Representatives against, any
and all claims, losses, damages and expenses, including reasonable attorneys'
fees, arising from a third party claim against Client or Client Representatives
to the extent that such third party claim is based on: (a) the negligence or
willful misconduct of ▇▇▇▇ or ▇▇▇▇ Representatives or (b) claims of infringement
of Intellectual Property Rights against Client or Client Representatives for the
authorized use of the Products.
9.5 If a third party asserts a claim that is eligible for indemnification
under Sections 9.3 or 9.4: (a) the indemnified party will promptly notify the
indemnifying party of the suit or claim; (b) the indemnified party will give the
indemnifying party sole authority to defend or settle the suit or claim,
provided that the indemnifying party does not agree to a settlement of the suit
or claim unless the settlement is reasonably acceptable to the indemnified
party; (c) the indemnified party will provide to the indemnifying party all
information in its control concerning the suit or claim; and (d) the indemnified
party will reasonably cooperate with the defense of the suit or claim. The
indemnification obligations under Sections 9.3 and 9.4 are subject to and
conditioned upon compliance with this Section 9.5 by the indemnified party.
10. General
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10.1 In connection with this Agreement each party is an independent
contractor and as such will not have any authority to bind or commit the other.
Nothing herein shall be deemed or construed to create a joint venture,
partnership or agency relationship between the parties for any purpose.
10.2 The waiver by either party of a breach of or a default under any
provision of this Agreement by the other party shall not be construed as a
waiver of any subsequent breach of the same or any other provision of this
Agreement nor shall any delay or omission on the part of either party to
exercise or avail itself of any right or remedy it has or may have hereunder
operate as a waiver of any right or remedy by such party.
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10.3 This Agreement and any Exhibits attached hereto contains the full
understanding of the parties with respect to the professional services related
to the Products and supersedes all prior understandings and writings relating
thereto. No waiver, consent modification, amendment or change of the terms of
this Agreement shall be binding unless in writing and signed by ▇▇▇▇ and Client.
If the terms and conditions of this Agreement are inconsistent with, or contrary
to, the terms and conditions of the Master Agreement, the terms and conditions
of the Master Agreement shall be controlling.
10.4 This Agreement shall be governed by the laws of the State of
Colorado.
10.5 Any notice or other communication in connection with this Agreement
shall be furnished in writing and shall be effective upon receipt.
10.6 Except for Client's payment obligations for professional services
already completed by ▇▇▇▇, neither Client nor ▇▇▇▇ will be deemed to be in
default of any provision of this Agreement or for any failure in performance,
resulting from acts or events beyond the reasonable control of Client or ▇▇▇▇,
as the case may be including, without limitation, acts of God, civil or military
authority, civil disturbance, war, strikes, fires, other catastrophes,
telecommunication outages, equipment malfunctions or other such major events
beyond Client's or ▇▇▇▇'▇ reasonable control.
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▇▇▇▇ Interactive Services, Inc: Client:_______________________
By:____________________________ By:___________________________
Name:__________________________ Name:_________________________
Title:_________________________ Title:________________________
Date:__________________________ Date:_________________________
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