EXHIBIT 10.28
MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT
BETWEEN EMONY LTD. AS LICENSOR AND BACKWEB TECHNOLOGIES LTD. AS LICENSEE
This Master Software License and Services Agreement ("Agreement") is between
Emony Ltd. ("Emony") as licensor and BackWeb Technologies Ltd. as its licensee
and customer ("Customer"). The terms of this Agreement shall apply to each
Program license granted and to all services provided by Emony under this
Agreement, which will be identified on one or more Order Forms.
I. DEFINITIONS
1.1 "PROGRAM" means the software designated in the applicable Order Form, in
object code form distributed by Emony, and the media, Documentation and
Updates therefor.
1.2 "DOCUMENTATION" means the standard software and user guides and manuals
for installation and use of the Program software provided by Emony with
the delivery of the applicable Programs.
1.3 "UPDATE" means a subsequent release of the Program made generally
available to Emony's supported customers. Update shall not include any
release, option or future product that Emony licenses separately.
1.4 "ORDER FORM" means the document by which Customer orders specific
Program licenses and services, and which is agreed to by the parties.
The Order Form shall reference the Effective Date of this Agreement.
1.5 "PLATFORM" means the computer hardware and operating system designated
on the relevant Order Form.
1.6 "TECHNICAL SUPPORT" means Program support provided under Emony's
policies in effect on the date Technical Support is ordered.
1.7 "COMMENCEMENT DATE" means the date on which the Program licenses
specified on an Order Form are delivered by Emony to Customer, or if no
delivery is necessary, the Effective Date set forth on the relevant
Order Form.
1.8 "APPLICATION PROGRAM(S)" shall mean Customer's software application
designated in an applicable Order Form.
1.9 "APPLICATION SPECIFIC PROGRAM" shall mean a Program which can only be
used by Customer as integrated into the Application Program in
connection with and in support of the Program.
II. PROGRAMS.
2.1 RIGHTS GRANT. Subject to Emony's receipt of the applicable fees set
forth on the applicable Order Form, Emony grants to Customer for the
Term agreed upon in the applicable Order Form, a nonexclusive,
nontransferable without right to sublicense, license to use the Programs
specified on an Order Form under this Agreement in object code only on
the designated Platform, for the following purposes:
A. to install the Programs on the appropriate number of computers of the
Platforms required to use the Application Specific Programs, as
licensed, and to use the Application Specific Programs for Customer's
operations, consistent with the use limitations specified or referenced
in this Agreement, an Order Form, or the Documentation ("Use Levels");
B. to use the Documentation provided with the Programs in support of
Customer's authorized use of the Programs;
C. to modify the Application Specific Programs consistent with the
Documentation and combine them with the Application Program designated
in the applicable Order Form; and
D. to allow Customer to deliver to its end users Customer's client
software and upgrades and updates thereof with the assistance of the
Application Specific Program so long as Customer ensures that use of the
Programs is in accordance with the terms of this Agreement, any
applicable Order Form and the applicable Use levels for the Program.
Other than as set forth above, Customer may not use the License for any
other data and software delivery operations or for any other purpose.
Emony shall deliver to the Customer location specified in such
Order Form one (1) copy of the software media and Documentation ("Master
Copy") for each Application Specific Program currently available in
production release as of the effective date of the Order Form for the
applicable Platforms. Customer shall have the right to use the Master
Copy (i) to make the number of copies as necessary to allow Customer to
use the Programs as licensed under this Agreement consistent with the
applicable Use Levels for such Program license; and (ii) to make a
reasonable number of copies of the Program for backup and archival
purposes. All titles, trademarks, and copyright and restricted rights
notices shall be reproduced in such copies. Customer agrees to include
the Emony logo "Powered by Emony" in any place that Customer's names or
logo appears when the Application Specific Program operates and on all
Customer's collateral concerning the Applications. Customer shall retain
any of Customer's trademarks; trademark notice or copyright notices on
the Programs and shall not remove such marks from any portions of the
Programs. Customer shall not copy or use the Programs (including the
Documentation) except as specified in this Agreement or an Order Form.
2.2 LIMITATIONS ON USE. Without limiting the foregoing, Customer may not use
the Programs for third-party training, commercial time-sharing, rental
or service bureau use, or outsourcing for third parties. Customer agrees
not to cause or permit the reverse engineering, disassembly or
decompilation of the Programs, except to the extent required to obtain
interoperability with other independently created software or as
specified by law.
2.3 TITLE. Emony shall retain all title, copyright and other proprietary
rights in the Programs and any modifications or derivative works made to
the Programs. Customer and any the end users do not acquire any rights,
express or implied, in the Programs or modifications or derivative works
thereto, other than those specified in this Agreement or in an
applicable Order form
Customer shall retain all title, copyright and other proprietary rights
in its Programs and any modifications or derivative works made to the
Applications developed by Customer to the extent that such do not
contain the Programs.
Without limiting the provisions of this section 2.3, Customer shall not
embody any portion of the Programs or Emony's Confidential Information
in any patent application filed by or on behalf of Customer. In
addition, in the event Customer applies for a Blocking Patent (as
defined below), Customer hereby grants to Emony and to Emony's licensees
a nonexclusive, irrevocable, perpetual, license to the Blocking Patents.
The term "Blocking Patent" shall mean (in this Agreement and in any
Order Form) a patent invented on behalf of and/or owned at any time by
Customer which covers an invention to which a license would be necessary
in order to utilize Emony's products and the intellectual property
rights pertaining thereto.
2.4 VERIFICATION. Customer shall maintain books and records in connection
with its Program use during the term of this Agreement and for two (2)
years thereafter. Emony may audit Customer's records to determine
whether Customer has complied with the terms of this Agreement or any
applicable Order Form. Any such audit shall be conducted by independent
auditors selected by Emony and approved by Customer who shall perform
their audit during regular business hours at Customer's facilities and
shall not unreasonably interfere with Customer's business activities and
not more than twice a year. If an audit reveals that Customer has
underpaid fees to Emony, Customer shall be invoiced for such underpaid
fees. If the underpaid fees are in excess of five percent (5%), then
Customer shall pay Emony's reasonable costs of conducting the audit.
3.1 III. SERVICES TECHNICAL SUPPORT SERVICES. During the Term of this
Agreement, Emony shall provide technical support services, as defined in
the applicable Order Form, to Customer for the standard version of the
Programs. Any support for customizations may be acquired from Emony at
fees to be mutually agreed upon by the parties.
3.2 CONSULTING AND TRAINING SERVICES. Emony will provide consulting and
training services agreed to by the parties under the terms of this
Agreement and as detailed on separate Order Forms referencing this
Agreement. Except as otherwise agreed by the parties, all consulting
services and training services shall be billed on time and material
basis.
3.3 INCIDENTAL EXPENSES. For any on-site services requested by Customer,
Customer shall reimburse Emony for actual, reasonable travel and
out-of-pocket expenses incurred.
3.4 TECHNICAL COOPERATION. During the Term of this Agreement, Emony will
assist Customer with the technical know-how reasonably necessary to
facilitate the integration of the Application Program into Application
Specific Program. Such assistance shall be at Emony's standard
consulting rates and be subject to a mutually agreed upon Statement of
Work ("SOW"). Each party shall provide a technical contact (each, being
a "Technical Contact"), who shall have as the primary technical liaisons
between the parties and shall act to ensure the free flow of information
subject to appropriate confidentiality undertakings by the parties and
the personnel implementing this Agreement and further subject to the
applicable SOW.
IV. PAYMENT
4.1 INVOICING AND PAYMENT. All fees shall be due and payable as set forth on
the applicable Order Form.
4.2 TAXES. The fees listed in this Agreement do not include taxes; if Emony
is required to pay sales, use, property, value-added or other taxes
based on the licenses or services granted in this Agreement or on
Customer's use of Programs or services, then such taxes shall be billed
to and paid by Customer. This Section shall not apply to taxes based on
Emony's income.
V. TERM AND TERMINATION
5.1 TERM. This Agreement shall become effective on the Effective Date of
this Agreement and shall be valid until five (5) years from the
Effective Date of this Agreement (the "Initial Term"), unless terminated
earlier as provided in this Agreement. Prior to the expiration of the
Initial Term, the parties may agree in writing to renew this Agreement
for a term to be agreed upon.
5.2 TERMINATION FOR BREACH. Each party may terminate this Agreement or any
license upon written notice if the other party materially breaches this
Agreement and fails to correct the breach within thirty (30) days
following written notice specifying the breach.
5.3 FORCE MAJEURE. Neither party shall be liable to the other for failure or
delay in the performance of a required obligation if such failure or
delay is caused by strike, riot, fire, flood, natural disaster, or other
similar cause beyond such party's control, provided that such party
gives prompt written notice of such condition and resumes its
performance as soon as possible, and provided further that the other
party may terminate this Agreement if such condition continues for a
period of one hundred eighty (180) days.
5.4 EFFECT OF TERMINATION. Upon expiration or termination of this Agreement,
all of Customer's rights
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to use the Programs shall cease. If this Agreement expires or is
terminated for any reason, neither party will be liable to the other
because of such expiration nor termination for damages for the loss of
prospective profits, anticipated sales or good will. Termination of this
Agreement or any license shall not limit either party from pursuing
other remedies available to it, including injunctive relief, nor shall
such termination relieve a party's obligation to pay all fees that have
accrued or are otherwise owed by a party under this Agreement, any Order
Form or any fees report. The parties' rights and obligations under
Sections 2.2, 2.3, 2.4, Articles IV, V VI, and VII shall survive
termination of this Agreement. Upon termination of any Program license,
Customer shall cease using, and shall return or destroy, all copies of
the applicable Programs.
VI. INDEMNITY, WARRANTIES, REMEDIES
6.1 INFRINGEMENT INDEMNITY. Emony will defend and indemnify Customer against
a claim that the Programs infringe any copyright or patent, provided
that: (a) Customer notifies Emony in promptly writing after notice of
the claim; (b) Emony has sole control of the defense and all related
settlement negotiations; provided, however, that Emony shall have not
right to incur any material obligation on Customer's behalf except for
the actions specified in the second paragraph of this Section; and (c)
Customer provides Emony with the assistance, information and authority
necessary to perform Emony's obligations under this Section. Emony will
reimburse Customer's reasonable out-of-pocket expenses incurred in
providing such assistance. Emony shall have no liability for any claim
of infringement based on (a) use of a superseded or altered release of
Programs by Customer if the infringement would have been avoided by the
use of a current unaltered release of the Programs which Emony provides
to Customer or (b) the combination or use of the Programs with software,
hardware or other materials not furnished by Emony if the use of the
software, hardware or other materials not furnished by Emony was the
sole cause of the claim of infringement.
If the Programs are held or are believed by Emony to infringe, Emony
shall have the option, at its expense, to (a) modify the Programs to be
noninfringing or (b) obtain for Customer a license to continue using the
Programs. If Emony determines, in its sole discretion, that it is not
commercially reasonable to perform either of the above options, then
Emony may terminate the license for the infringing Programs and refund
the license fees paid for those Programs, prorated over a five year term
from the Commencement Date. This Section 6.1 states Emony's entire
liability and Customer's exclusive remedy for infringement.
6.2 WARRANTIES AND DISCLAIMERS.
A. For each Program licensed to Customer, Emony warrants to Customer
that:
(i) for a period of ninety (90) days after the Commencement Date, each
unmodified Program will operate substantially in accordance with the
functional description provided the applicable Documentation when
installed on the applicable Platform; and
(ii) the Program will, to the extent supported by the underlying
operating system and Customer's applications, be compliant with the
millennium date change.
B. For services acquired under this Agreement, Emony warrants to
Customer for a period of ninety (90) days from performance of the
applicable service that its Technical Support, training and consulting
services will be performed consistent with generally accepted industry
standards.
C. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EMONY DOES NOT WARRANT THAT THE PROGRAMS WILL OPERATE IN COMBINATIONS
OTHER THAN AS SPECIFIED IN THE DOCUMENTATION OR THAT THE OPERATION OF
THE PROGRAMS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE. BETA OR
PRE-PRODUCTION RELEASES OF PROGRAMS ARE DISTRIBUTED "AS IS." EXCEPT WITH
RESPECT TO ANY CONTENT PROVIDED BY EMONY, EMONY EXPRESSLY DISCLAIMS
RESPONSIBILITY FOR OR LIABILITY ARISING OUT OF OR BASED UPON THE CONTENT
OF INFORMATION TRANSMITTED BY CUSTOMER OR TRANSMITTED TO END USERS OR
THE RESULTS OF ANY SUCH TRANSMISSION.
6.3 EXCLUSIVE REMEDIES. For any breach of the warranties contained in this
Agreement, Customer's exclusive remedy, and Emony's entire liability,
shall be:
A. for Programs, Emony shall correct the Program errors that cause the
breach of warranty or, if correction of the Programs is not commercially
feasible, Emony shall replace the Programs with conforming; and
B. for services, Emony shall reperform the deficient services that cause
the breach of the warranty.
6.4 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES
FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER PARTY OR
ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE
OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EMONY'S
LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF
FEES PAID BY CUSTOMER UNDER THIS AGREEMENT.
The provisions of this Agreement allocate the risks between Customer and
Emony. Emony's pricing reflects this allocation of risk and the
limitation of liability specified herein.
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VII. GENERAL TERMS
7.1 NONDISCLOSURE. By virtue of this Agreement, the parties may have access
to information that is confidential to one another ("Confidential
Information"). Confidential Information shall be limited to the
Programs, the terms and pricing under this Agreement, and all
information clearly identified as confidential.
A party's Confidential Information shall not include information that:
(a) is or becomes a part of the public domain through no act or omission
of the other party; (b) was in the other party's lawful possession prior
to the disclosure and had not been obtained by the other party either
directly or indirectly from the disclosing party; (c) is lawfully
disclosed to the other party by a third party without restriction on
disclosure; or (d) is independently developed by the other party.
The parties agree to hold each other's Confidential Information in
confidence during the term of this Agreement and for a period of two (2)
years after termination of this Agreement. The parties agree, unless
required by law, not to make each other's Confidential Information
available in any form to any third party (except to each such party's
agents or independent contractors) for any purpose other than the
implementation of this Agreement. Each party agrees to take all
reasonable steps to ensure that Confidential Information is not
disclosed or distributed by its employees, agents or independent
contractors in violation of the terms of this Agreement. Notwithstanding
the above, Emony may refer to Customer as a customer, OEM and
distribution partner in sales presentations, press releases, product
brochures, financial or governmental reports, marketing vehicles and
activities and on its website and may display Customer's logo in
connection with such references.
7.2 COPYRIGHT. The Programs are copyrighted by Emony. Customer shall retain
all Emony copyright notices on the Programs used by Customer under its
Licenses. On all copies of the Programs integrated and distributed by
Customer, Customer shall include a reproduction of Emony's copyright
notice(s) with reference to the portions of the Programs included. Such
notices shall be placed on the documentation, the sign-on screen and the
CD-ROM labels. Notwithstanding any copyright notice by Customer to the
contrary, the copyright to the Programs shall remain in and with Emony.
Other than as specified above, on any reproduction or translation of any
Programs, Documentation or promotional material, Customer agrees to
reproduce Emony's copyright notices intact.
8.3 TRADEMARKS. "EMONY" and any other trademarks and service marks adopted
by Emony to identify the Programs and other Emony products and services
belong to Emony; Customer will have no rights in such marks, except as
expressly set forth herein and as specified in writing from time to
time. Customer shall have the right to use Emony's trademarks solely in
furtherance of its distribution activities, if any, under this Agreement
or any applicable Order Form and such use of Emony's trademarks shall be
under Emony's trademark policies and procedures in effect from
time-to-time. Customer agrees not to use the trademark "EMONY" or any
other ▇▇▇▇ likely to cause confusion with the Emony's trademarks as any
portion of Customer's trade name or trademark for any other products of
Customer. Customer shall have the right to use Emony's trademarks solely
to refer to Emony's Programs, products and services.
7.4 RELATIONSHIP BETWEEN PARTIES. In all matters relating to this Agreement,
the parties will each act as an independent contractors. The
relationship between Emony and Customer is that of licensor/licensee.
Neither party will represent that it has any authority to assume or
create any obligation, express or implied, on behalf of the other party,
nor to represent the other party as agent, employee, or in any other
capacity. Nothing in this Agreement shall be construed to limit either
party's right to independently develop or distribute software that is
functionally similar to the other party's product, so long as
proprietary information of the other party is not used in such
development.
7.5 GOVERNING LAW. This Agreement, and all matters arising out of or
relating to this Agreement, shall be governed by the laws of Israel.
7.6 NOTICE. All notices, including notices of address change, required to be
sent hereunder shall be in writing and shall be deemed to have been
given when mailed by first class mail to the first address listed in the
relevant Order Form (if to Emony) or to the Customer address on the
Order Form (if to Customer). To expedite order processing, Customer
agrees that Emony may treat documents faxed by Customer to Emony as
original documents; nevertheless, either party may require the other to
exchange original signed documents.
7.7 ASSIGNMENT. Neither party may assign this Agreement, or any part
thereof, to a legal entity separate from such party, without the prior
written consent of the other party hereto, such consent not to be
unreasonably withheld. Notwithstanding the forgoing, either party may
assign this Agreement and any Order Form to the surviving entity in a
merger or reorganization or the purchaser of substantially all of the
assets of that party, provided however that in the event that the
acquiring entity is a direct competitor of the other, the prior written
consent of the other party hereto shall be required, such consent not to
be unreasonably withheld. In the event that a party reasonably refuses
the assignment for the reasons set forth in the prior sentence, then
such party shall have the right to terminate the Agreement in accordance
with section V herein and that shall be that party's sole and entire
remedy with regards hereto.
7.8 SEVERABILITY. If any provision of this Agreement is held to be invalid
or unenforceable, the remaining provisions of this Agreement will remain
in full force.
7.9 WAIVER. The waiver by either party of any default or breach of this
Agreement shall not constitute a waiver of any other or subsequent
default or breach.
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7.10 EXPORT ADMINISTRATION. Each party agrees to comply fully with all
relevant export laws and regulations of the United States ("Export
Laws") to assure that neither the Programs nor any direct product
thereof are (1) exported, directly or indirectly, in violation of Export
Laws; or (2) are intended to be used for any purposes prohibited by the
Export Laws, including, without limitation, nuclear, chemical, or
biological weapons proliferation.
7.11 RESTRICTED RIGHTS. If Customer distributes Programs to the United States
government, the Programs shall be provided with "Restricted Rights" and
Customer will place a legend, in addition to applicable copyright
notices, on the documentation, and on the tape or diskette label,
substantially similar to the following: The Programs are deemed to be
"commercial computer software" and/or "commercial computer software
documentation" pursuant to DFAR Section 227.7202 and FAR Section 12.212,
as applicable. Any use, duplication, modification or disclosure by the
United States Government is subject to the restrictions set forth in
these clauses. Manufacturer is Emony Ltd., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇'▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇.
7.12 ENTIRE AGREEMENT. This Agreement and the Annexes hereto and any Order
Forms hereto constitute the complete agreement between the parties and
supersede all prior or contemporaneous agreements or representations,
written or oral, concerning the subject matter of this Agreement. This
Agreement may not be modified or amended except in a writing signed by a
duly authorized representative of each party; no other act, document,
usage or custom shall be deemed to amend or modify this Agreement. It is
expressly agreed that the terms of this Agreement shall supersede the
terms in any Customer purchase order or other ordering document and such
terms will have no force or effect other than those Order Forms issued
in connection with this Agreement which shall each be incorporated by
reference to this agreement and shall be deemed a part hereto. This
Agreement shall also supersede the terms of any unsigned license
agreement included in any package for Emony-furnished software.
The Effective Date of this Agreement shall be August 29, 2001.
EXECUTED BY BACKWEB TECHNOLOGIES LTD.: EXECUTED BY EMONY LTD:
Authorized Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Authorized Signature: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------- --------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------ ------------------------------------------
Title: COO Title: C.E.O.
---------------------------------------- -----------------------------------------
Address: ▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Ramat Gan 52136 Rosh Ha'ayin ▇▇▇▇▇
▇▇▇▇▇▇ Israel
5
Page 1 of 7
ORDER FORM FOR EMONY SOFTWARE
PURSUANT TO
MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT
BETWEEN
EMONY LTD. AS LICENSOR
AND
BACKWEB TECHNOLOGIES LTD. AS CUSTOMER
CUSTOMER NAME: BackWeb Technologies Ltd. ("BackWeb")
BILLING CONTACT: ____________________________________ BILLING ADDRESS: ____________________________________
PHONE: ____________________________________ ____________________________________
FAX: ____________________________________ ____________________________________
EMAIL: ____________________________________ ____________________________________
TECHNICAL CONTACT: ____________________________________ SHIPPING ADDRESS: ____________________________________
PHONE: ____________________________________ ____________________________________
FAX: ____________________________________ ____________________________________
EMAIL: ____________________________________
A. ORDER INFORMATION
1. PLATFORMS:
MAKE/MODEL: PC COMPATIBLE
OPERATING SYSTEM: WINDOWS NT, 2000 AND ALL WINDOWS O/S AS THEY BECOME
COMMERCIALLY AVAILABLE, UNIX, SOLARIS, LINUX
MEDIA: CD-ROM
2. PROGRAMS:
Programs - License Type
Microloader Application Specific
3. TECHNICAL SUPPORT LEVEL Technical support substantially equivalent to
BackWeb's Silver level
4. FEES:
Total Net License Fees Due*: $ 500,000.00
Technical support substantially equivalent to BackWeb's Silver level (18%)** 90,000.00
--------------
Total fees due:*** $ 590,000.00
* The license fees set forth above are noncancellable and sums paid are
nonrefundable. All fees shall be due and payable forty-five (45) days from
BackWeb's receipt of invoice. All payments made shall be in United States
currency or in New Israel Shekels (NIS), with the exchange rate being the
exchange rate from U.S. dollars into NIS reported by the Wall Street Journal on
the last business day prior to date of payment. Also, such payment shall be made
without deductions based on any taxes or withholdings, except where such
deduction is based on gross income. Any amounts payable by BackWeb hereunder
which remain unpaid after the due date shall be subject to a late charge equal
to 1.5% per month from the due date until such amount is paid.
** BackWeb Silver level service is described in Attachment A hereto. Technical
Support shall be for one year and be paid at the same time that license fees are
paid. BackWeb shall have the right to renew Technical Support services for such
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Program licenses at Emony's then current standard Technical Support services
fees and pricing in effect at the time of order.
*** Total fees do not include all applicable taxes. If Emony is required to pay
sales, use, property, value-added or other taxes or custom duties based on the
licenses or services granted in the Agreement or this Order Form on BackWeb's
use of Programs or services, then such taxes shall be billed to and paid by
BackWeb.
B. GENERAL TERMS
1. Definitions
a. Programs - "Microloader": refers to the Emony Ltd. ("Emony")
Microloader compression technology product, any new
versions of such product, and subject to the terms
of the Agreement and the Technical Support Level,
any and all updates and upgrades thereto during the
term of the license and Technical Support Level
acquired hereby. In the event that Emony renames
the Microloader product and/or issues a new product
and such new product is aimed at and designed for
offering the same functions and characters as the
Microloader product, then such renamed product or
new product shall also be governed by the terms of
this Order Form as being included in the definition
of "Microloader."
b. License Type - "Application Specific" shall mean that BackWeb may
use the Programs only to facilitate and enhance the
delivery of the BackWeb(R) Client Software and
update/upgrades of the software known as "BackWeb
Client" which application is referred to herein as
the "Application Program." This right is given to
BackWeb with the understanding that BackWeb does
not charge its customers separately for this
feature. In the event that BackWeb begins charging
for this feature separately or that BackWeb desires
to enter into the software distribution business,
BackWeb shall notify Emony that it wishes to
exercise the option set forth in Section B.5 below
and the parties will enter into a discussion of the
terms of such arrangement
c. Territory - "Territory": the geographic area for the use and
installation of the Programs shall be worldwide.
2. Term of License. The Program licenses acquired by BackWeb hereunder
shall be for a five (5) year term (the "Term"), commencing on the
Effective Date hereof.
3. Exclusivity. Emony represents that it has not entered to date, and will
not enter during the Term of this Order Form, into any license
agreement, OEM arrangements, distribution relationships or any other
agreement, to provide its Program that is the subject of this Order Form
and future products that include the Microloader to Marimba, Novadigm or
Tibco.
4. Emony undertakes to use its best efforts to maintain upward
compatibility in its core functionality. In the event that Emony
reasonably determines that market conditions and the business climate
creates a necessity for changes in the future versions of the
Microloader product which may have impact on compatibility with back
versions of such product, Emony shall inform BackWeb of such changes.
5. Option. At any point during the Term, BackWeb shall have the option to
expand the application for which Application Specific Programs are
integrated with the Application Program (the "OEM Product") to third
party software distribution on a royalty basis to be mutually agreed
upon.
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Emony and BackWeb agree that the terms and pricing of this Order Form shall not
be disclosed without the prior written consent of the other party. This Order
Form is valid through August 30, 2001 and shall become binding upon execution by
BackWeb and acceptance by Emony.
The Effective Date of this Order Form shall be August 29, 2001.
EMONY LTD. BACKWEB TECHNOLOGIES LTD.
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ BY: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------- ------------------------------
NAME: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ NAME: ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------- ---------------------------
TITLE: C.E.O. TITLE: COO
------------------------------- --------------------------
This Order Form and the products acquired herby shall be governed by the terms
of Master Software License and Services Agreement between Emony and BackWeb,
dated August 29, 2001 (the "Agreement").
Page 4 of 7
ATTACHMENT A
BACKWEB TECHNICAL SUPPORT POLICIES
SILVER LEVEL SUPPORT
BackWeb Technical Support is provided for problems that are demonstrable in the
applicable release of a BackWeb licensed product, running unaltered on an
acceptable hardware and operating system configuration.
Technical Support services are normally provided over annual support periods.
Initial-year annual Technical Support services for BackWeb products commence on
the date of delivery of the BackWeb products or if no delivery is required,
commence on the effective date of the order for such product. Thereafter,
Technical Support services may be renewed for successive annual periods of one
year.
BackWeb notifies the Customer of renewal fees prior to the date for renewal of
Technical Support services. Technical Support fees are due and payable annually
in advance of commencement of the applicable Support Period. Failure to pay
Technical Support fees will result in suspension of BackWeb Technical Support
Services.
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SILVER TECHNICAL SUPPORT SERVICE
Silver Technical Support includes:
- Telephone Technical Support assistance is available from 8:00
a.m. to 5:00 p.m. Monday through Friday (holidays excluded)
based on the local time zone of the assigned BackWeb Technical
Support Center. The appropriate BackWeb Technical Support Center
is assigned by BackWeb based on the geographical location of the
customer.
- BACKWEB'S NORTH AMERICAN PRIORITY SUPPORT HOTLINE
Telephone: ▇-▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
- BACKWEB'S EUROPEAN PRIORITY SUPPORT HOTLINE
Telephone: ▇▇▇▇-▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
- Web-based access to BackWeb Technical Support news, patches,
Updates and programming examples is available through BackWeb's
webpage at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇/▇▇▇▇▇▇_▇▇▇▇▇▇▇.▇▇▇▇
- Product Updates(1)
- Bug fixes
- General maintenance releases
- Minor and major new functionality releases, i.e.
upgrades
- Documentation updates
- BackWeb Knowledgebase access to information on Technical Support
Frequently Asked Questions and customer feedback.
- Access to System Reports is initiated by the Customer
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TECHNICAL SUPPORT ENGINEERS
For the Technical Support Services level specified above, the Support Center's
Technical Support Engineers (TSEs) field incoming calls, email and fax messages.
TSEs are responsible for:
a) Coordinating the resolution of the problem
b) Verifying any reported error, including by obtaining additional
information from Customer
c) Communicating to the Customer a resolution, or workaround, or
supplying a bug fix, as appropriate
----------
(1) "Update" refers to subsequent releases of the BackWeb software product,
including, without limitation, bug fixes, error corrections and those new
releases which BackWeb makes available for Program licensees at no additional
license fee other than media and handling charges, provided the Customer has
ordered Technical Support for such licenses for the relevant time period.
Updates do not include any release, option, module or future product that
BackWeb licenses separately.
8
Page 5 of 7
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CUSTOMER SUPPORT IDENTIFICATION (CSID) NUMBER
Upon purchasing BackWeb Technical Support services, Customer receives a CSID
Number. The CSID Number is essential for obtaining the Technical Support
Services described in this document from BackWeb.
The CSID number identifies the Customer with respect to the following
information:
- Company Name and Address
- Product Set and Version
- Technical Support Level
- Duration of Support Period
- Operating System
- Technical Contact Information
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INFORMATION CUSTOMERS NEED WHEN CALLING SUPPORT
Before BackWeb can begin work on any problem, information on the nature and
location of the problem is required. Whenever an error report or call is placed
to the BackWeb Support Center, the following information should be provided:
- The Customer Support Identification (CSID) number
- The area code and phone number
- The operating system (including version) on which BackWeb products are
installed
- The BackWeb product name and version number and build number that this
call concerns.
- Any program error messages associated with the problem
- A detailed description of the problem
- A status log, if applicable
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PROBLEM RESOLUTION PROCEDURE
BackWeb categorizes reported errors as provided in the table below and responds
to reported errors according to the schedule indicated. "Acknowledgment" means
confirming receipt of a problem, verifying details, attempting to duplicate the
problem and confirming status to Customer. "Response" means providing Customer
with an answer, a patch or a resolution action plan. BackWeb is only responsible
for providing support for the failure of a BackWeb product to materially conform
to the functional specifications as set forth in the applicable product
documentation.
Acknowledgment Goal Silver Gold Platinum
------------------- ------ ---- --------
Priority 1 1 Business day 1 Business hour 1 hour
Priority 2 2 Business days 2 Business hours 2 hours
Priority 3 3 Business days 6 Business hours 6 hours
Priority 4 3 Business days 2 Business days 24 hours
Resolution response
Priority 1 3 Business days 2 Business day 2 days
Priority 2 5 Business days 4 Business days 4 days
Priority 3 10 Business days 8 Business days 7 days
Priority 4 15 Business days 15 Business days 15 days
Page 6 of 7
Priority Categories shall be defined as follows:
Priority 1 Critical: Production stop due to product or major feature
failure or data corruption.
Priority 2 Serious: Major impact. Major feature/product failure;
inconvenient workaround or no workaround exists.
Priority 3 Minor: Minor impact. Minor feature/product failure,
convenient workaround exists.
Priority 4 Informational: Functionality does not match documented
specifications.
A nonconformity is not considered an error if (a) the BackWeb product is
combined or merged with any hardware or software not supported by BackWeb; or
(b) the error is caused by Customer's misuse or improper use of the BackWeb
product.
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TECHNICAL CONTACTS
For each order for Technical Support services, the Customer must designate one
primary and one backup employee ("Technical Contacts"), to serve as liaisons
with BackWeb. The designated Technical Contact is the sole liaison between
Customer and BackWeb for all software product support and shall be based at the
customer's premises. To avoid interruptions in support services, customers must
notify BackWeb whenever their Technical Contact responsibilities are transferred
to another individual. The Customer will ensure that each Technical Contact is
trained on BackWeb's products.
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PRIOR VERSIONS
BackWeb provides support for a specific release or version of a BackWeb product
for a minimum of six (6) months after BackWeb makes a subsequent release or
version of such product available, as an Update or otherwise. At its sole
discretion and control, BackWeb may replace specific components of the Programs
with other components and BackWeb shall only provide Technical Support for the
new components.
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CUSTOM WORK
BackWeb Technical Support is offered for all officially released BackWeb
products. Custom made applications, created by the customer and/or by BackWeb
Professional Services, are not covered by this maintenance offering.
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SUPPORT POLICY CHANGES
Technical Support services, including Updates, are provided by BackWeb, subject
to the terms of the applicable written agreement between Customer and BackWeb,
and if none, under BackWeb's standard Software License and Services Agreement in
effect at the time Technical Support services are ordered. These Technical
Support policies are BackWeb's current policies and are subject to change.
BackWeb may inform Customer of any changes via publication on BackWeb's
Technical Support webpages and such changes shall take effect after the
then-current support period.
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REINSTATEMENT FEES
In the event that BackWeb Technical Support services lapse, are not renewed or
were never originally procured, a Reinstatement Fee shall be assessed upon
re-commencement of Technical Support services equal to the amount of
Silver-level Technical Support fees which would have been applicable during the
period of lapse, calculated based on the current Technical Support fee in effect
at the time Technical Support is ordered.
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ADDITIONAL OFFERINGS
On-Site Support
Upon Customer's request and order, BackWeb provides the on-site services of
BackWeb Engineers to assist in resolving technical support issues at the then
current Professional Services rate.
Special Reports
At fees to be mutually agreed upon in writing, BackWeb will deliver monthly
System Reports via email and/or hard copy. These reports include details
specific to the customer's issues. BackWeb includes in each such report a
summary list of all patches made available during the reporting period for the
supported Program licenses.
All mentioned reports & knowledgebase-related items will be available starting
June 2001.
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BACKWEB TECHNICAL SUPPORT CENTERS
CANADA
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