EXHIBIT 10.36
VIEWLOCITY
PARTNER AGREEMENT
VALUE ADDED RESELLER &
EMBEDDED LICENSES
Between VIEWLOCITY and FRONTEC AB
(FRONTEC AMT AB)
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Tel: ▇▇▇ ▇ ▇▇▇ ▇▇ ▇▇ Tel: ▇▇▇ ▇ ▇▇▇ ▇▇ ▇▇
Fax: ▇▇▇ ▇ ▇▇▇ ▇▇ ▇▇ Fax: ▇▇▇ ▇ ▇▇▇ ▇▇▇▇
▇▇▇.▇▇: 556209-9829 ▇▇▇.▇▇: 556272-5092
Referred as "Software Provider" Referred as "Partner"
TO THIS AGREEMENT THE FOLLOWING APPENDICES FORM AN INTEGRATED
PART:
APPENDIX A - Price list reference and discounts scheme
APPENDIX B - Contact persons
APPENDIX C - Bundled/Embedded pricing
APPENDIX D - Deliverables
APPENDIX E - Software License Conditions
APPENDIX F - Update and Support Agreement
APPENDIX G - Specification of In-house Software for Partner
APPENDIX H - Sales Forecast
APPENDIX I - Training
APPENDIX J - Other Conditions
1. Background and scope of agreement...................................4
2. Relation of the parties.............................................4
3. Mutual Non Disclosure...............................................4
3.1 Information 4
3.2 Exceptions 5
4. Ordering of software................................................5
5. Delivery of software ...............................................6
6. Contact Persons.....................................................6
7. Responsibilities of Software Provider...............................6
7.1 Software Maintenance 6
7.2 Enhancements of Software 7
7.3 Product Announcements and Withdrawals 7
7.4 Training 7
7.5 Sales Promotional Material 8
8. Price lists, changes in pricing.....................................8
8.1 Price list, and changes thereof 8
8.2 Discounts 9
9. Responsibilities of Partner ........................................9
9.1 Proactive Marketing and Sales 9
9.2 Responsibility for Use 9
9.3 Software License Conditions 10
9.4 Partner's Software Register 10
9.5 Update and Support to End Users 10
10. Title and intellectual property rights.............................11
11. The In-house Software .............................................11
11.1 In-house Software License
11.2 In-house Update and Support
11.3 In-house Software Support
12. Indemnities .......................................................12
12.1 Software Provider Indemnity
13. Limitation of liability ...........................................13
14. Audit rights.......................................................14
15. Payment............................................................14
16. Warranties.........................................................15
16.1 Limited Warranty 15
16.2 Rights 15
16.3 No Other Warranties 16
17. Term and termination...............................................16
17.1 Term and Term of Notice 16
17.2 Termination for Cause 17
17.3 Licenses Terminate 17
18. General provisions ....................................................18
18.1 Disputes 18
18.2 Severability 18
18.3 Notices 18
18.4 Assignment 18
18.6 Waiver 19
18.6 Entire Agreement 19
18.7 Modifications 19
18.8 Headings 19
19. Force majeure .........................................................20
Appendix A Price list reference and discounts ▇▇
▇▇▇▇▇▇▇▇ ▇ Contact persons ▇▇
▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇ pricing 24
Appendix D Deliverables 25
Appendix E - Software License Conditions 26
Appendix F - Update and Support Conditions 27
Appendix G - Specification of In-house Software 29
Appendix H - Sales Forecast 30
Appendix I - Training 31
Appendix J - Other conditions 32
1. BACKGROUND AND SCOPE OF AGREEMENT
Software Provider has developed the AMTrix System, referred to as
the Software and described as deliverables in Appendix D, and has
together with Partner decided that both parties will mutually
benefit from cooperating according to the Viewlocity Partner
Program, hereinafter referred to as this Agreement. Partner was
originally the owner of Software Provider and responsible for the
initial development of AMTrix, and in that role also the only sales
channel for the product.
Subject to the terms and conditions of this Agreement, Software
Provider hereby grants to Partner, and Partner hereby accepts a
non-exclusive, non transferable, right to market, resell,
distribute, sublicense support and use the Software under Software
Provider's trademark, or trade name, in all countries worldwide,
referred to as the Territory, to companies and organizations,
referred to as End Users.
In addition, Partner shall have the right to grant sublicenses to
market, resell, distribute, and use the Software to third parties,
referred to as Reselling Part, provided that any such Reselling
Part shall be accepted by Software Provider prior to any such
appointment. Partner remains responsible to Software Provider for
performance of all of the obligations under this Agreement.
2. RELATION OF THE PARTIES
Both parties operate as independent companies, carry their own
costs for sales and support, and do not under-take any commitments
towards each other except those stated in this Agreement. Neither
party shall have the right to commit the other party with respect
to any third party unless stated in this Agreement.
3. MUTUAL NON DISCLOSURE
3.1 INFORMATION
Proprietary Information shall include without limitation trade
secrets, business plans, manufacturing process, finances,
customers, marketing, production and margin information, and
invention research. All Proprietary Information shall remain the
property of the disclosing/originating party. Nothing contained in
this Agreement or the disclosure pursuant to this Agreement shall
be construed as granting any license or rights under any
proprietary right whether present or future.
The party disclosing or supplying the Proprietary Information
shall retain all rights and title thereto. Each party acknowledges
that such Proprietary Information is of substantial value and that
any disclosure or misuse is harmful to the originating party.
All proprietary notices, labels or marks relating to any
intellectual property rights incorporated IN, marked ON or fixed
to any information disclosed or device furnished hereunder shall
not be removed, altered or obliterated in whole or in part in any
form. Any copyright, trademark or similar notice by itself,
however, does not constitute or evidence a publication or public
disclosure.
3.2 EXCEPTIONS
Notwithstanding the other provisions of this Agreement, nothing
received by either party shall be considered to be Confidential
Information of the other if.
a. it has been published or is otherwise readily available to
the public other than by a breach of this Agreement,
b. it has been rightfully received by the party from a third
party without confidential limitations,
c. it has been independently developed by the receiving party
without any violation of this Agreement,
d. it was known to the possessing party prior to its first
receipt by such party, as shown by files existing at the
time of initial disclosure, or
e. it has been intentionally disclosed by the party claiming
that the information is Proprietary Information to a third
party without restriction on disclosure.
4. ORDERING OF SOFTWARE
Orders for copies of the Software shall be communicated in
writing, to Software Provider at the above address or at such
other address as Software Provider may from time to time notify to
Partner. All orders shall be accompanied with a copy of the
software license agreement, as specified hereinbelow (Appendix E),
entered into between Partner/Reselling Party and the End User in
order that Software Provider may accurately allocate a particular
serialization number for each End User.
Orders shall be binding on Software Provider unless and until
rejected by Software Provider in writing within ten (10) working
days from the day the order was received by Software Provider
subject to the preceding paragraph.
Software Provider will use all reasonable endeavors to fulfill
and deliver accepted orders for the Software with all reasonable
dispatch but shah not be liable in any way for any loss of trade
or profit occurring to Partner in the event of delivery being
frustrated or delayed.
Software Provider shall be obliged to deliver to Partner any
Software according to such specification and price as was current
at the time Partner made a quotation to any End User or, if such
version of the Software would no longer be available, any
equivalent or superior version of the Software, provided however,
that such quotation is not older than ninety (90) days at the
time of the order or otherwise agreed by both parties.
Software Provider shall establish an electronic order system for
Partner to use when ordering licenses. Software Provider will
then create and electronically send a license agreement to the
Partner for sign of end customer. Shipment of licenses will take
place after license agreement has been signed and returned to
Software Provider.
5. DELIVERY OF SOFTWARE
Software Provider will deliver the Software according to Appendix
D, Deliverables.
6. CONTACT PERSONS
Software Provider and Partner shall each designate dedicated
contact persons according to the following:
a. one (1) person as Sales & Marketing Contact;
b. one (1) person as Technical Contact;
The name of the Contact Persons is set out in Appendix B.
7. RESPONSIBILITIES OF SOFTWARE PROVIDER
7.1 SOFTWARE MAINTENANCE
Software Provider shall maintain the Software and subsequent new
releases in good condition and working order, conforming in all
material respects to performance levels and technical
specifications as described in the documentation and manuals
relating to the Software in accordance with the conditions of the
Update and Support Agreement as described in Appendix F.
7.2 ENHANCEMENTS OF SOFTWARE
Partner shall receive from Software Provider new releases,
updated releases and enhanced releases of the Software, for the
Partner development license, at such time such releases are
generally available to Software Provider's customers all in
accordance with the Update and Support Agreement, Appendix F.
7.3 PRODUCT ANNOUNCEMENTS AND WITHDRAWALS
Software Provider will keep Partner informed on new releases of
the Software and other software products developed and marketed
by Software Provider. Such information shall be supplied in a
Product Announcement document.
Software Provider will also inform Partner on releases of the
Software, which are being withdrawn from the market. Such
information shall be provided in a Product Withdrawal document.
Any information on withdrawal of any release of Software will be
given to Partner at least ninety (90) days prior to the date such
withdrawal comes into effect, unless any such withdrawal would be
due to any injunction or Software Provider otherwise would be
enjoined from marketing, selling, or distributing the Software in
question.
Information provided in Product Announcements, and Product
Withdrawals, respectively, will either be distributed on paper
document or on electronic media such as E-mail.
7.4 TRAINING
Software Provider will as part of this Agreement perform sales
training and technical training, for Partner's staff, without
cost to Partner, in accordance with the following:
a. sales training is performed as one session at Partner's site
as soon as possibly after this Agreement has been signed.
The number of participating sales persons shall be limited
to three (3) persons per Partners sales office. Additional
training can provided by Software Provider in accordance
with separate agreement between the parties and subject to
Software Provider's regular price list for such services.
b. technical training shall be performed (standard AMTrix 5
days basic training) at Software Provider's premises and in
accordance with the from time to time current official
training scheme. The number of participating technical
persons shall be limited to five (5) persons per Partners
sales office. Additional training can be provided by
Software Provider in accordance with separate agreement
between the parties and subject to Software Provider's
regular price list for such services.
Upon the release of updated versions, or new releases of the
Software, Software Provider will perform a Release Seminar at its
premises for technical personnel of Partner. Training can be
provided by Software Provider in accordance with separate
agreement between the parties and subject to Software Provider's
regular price fist for such services.
7.5 SALES PROMOTIONAL MATERIAL
Partner shall be entitled to, at no cost, use all Promotional
Material produced by Software Provider in relation to the Software
or any new releases or updates thereof, under the following
conditions:
a. Partner may reproduce any Promotional Material made in
electronic format as long as the content is unchanged.
Partner may add logotype and address information.
Translations of sales promotional material shall, however,
be allowed, but Software Provider prior to any use shall
approve the translated version within five (5) working days
after the translation has been received. Any translated
version of the Sales Promotional Material shall be the
intellectual property of Software Provider. Software
Provider shall supply Partner with Product fact sheets and
Product presentation slideshows in Swedish.
b. printed material shall be supplied free of charge up to a
volume, which corresponds, to Partner's forecasted sales
volume. Software Provider shall be free to determine the
actual volume of the printed promotional material, which
shall be supplied to Partner.
c. any charges from Software Provider to Partner with respect
to Promotional Material shall be agreed upon from time to
time, and shall, in all events, correspond to the actual
cost of production.
8. PRICE LISTS, CHANGES IN PRICING AND DISCOUNTS
8.1 PRICE LIST, AND CHANGES THEREOF
The price list applicable to this Agreement and Territory will
not be applicable outside the Territory.
The current Price list valid at the time of the signing of this
Agreement shall be as set forth in Appendix A, and revised Price
lists will be published from time to time by Software Provider.
Such revised Price fists shall come into effect ninety (90) days
from the date Partner received notice thereof Partner shall
however be entitled to order in accordance with the previous price
list during such 90-days-period unless the prices for the Software
according to the revised price list would be lower.
If Partner/Reselling Part would integrate the Software into other
software products, then special pricing can be agreed upon
separately, Such special pricing is set out as net prices
according to Appendix C.
Current Nordic price list will be effective until the yearend of
1999. Starting January I year 2000 the new World Wide pricelist
will be used,
8.2 DISCOUNTS
Partner is entitled to discounts in accordance with Appendix A-
9. RESPONSIBILITIES OF PARTNER
9.1 PROACTIVE MARKETING AND SALES
Partner shall actively market and sell the Software, according to
his business manors, within his normal territory of operation
together with Ids services. Partner shall assign at least one
dedicated sales person, as set out in Appendix B, and shall make
its sales organization knowledgeable in the Software.
Partner shall provide the Software Provider with a an updated
twelve (12) month sales action plan together with a list of
planned marketing activities, by the end of June and December each
year for as long as this Agreement is valid. Partner shall also
provide the Software Provider with a sales forecast for the coming
three month to bee updated every quarter on the last working day
of the quarter according to Appendix H.
9.2 RESPONSIBILITY FOR USE
Partner assumes full responsibility for all use of the Software
and any information entered, used, and stored therein. This
includes without limitation protection of data from unintended
modification, destruction or disclosure and for the accuracy and
integrity of the results. Software Provider assumes no
responsibility for End User negligence or Partner/Reselling Part
negligence or failure to protect data from unintended
modification, destruction or disclosure.
9.3 SOFTWARE LICENSE CONDITIONS
Partner shall at all times ensure that prior to delivery of the
Software to any End User/Reselling Part, such End User/Reselling
Part enters into a Software License Conditions which, as a
minimum, shall contain terms and conditions which correspond to
the terms and conditions as specified in this agreement and in
draft Software License Conditions, Appendix E, or as the same may
be amended from time to time with the prior written consent of
Software Provider. This Agreement is not valid for
bundling/embedding of the License Products. This shall be agreed
upon via a separate VAR agreement.
9.4 PARTNER'S SOFTWARE REGISTER
Partner shall at all times keep an up-dated register over 0 End
Users and Reselling Parties. Software Provider shall at all times
during normal working hours have reasonable access to this
software register. The software register shall as a minimum
consist of the same data as in the Order Form, Appendix D.
Software Provider shall supply Partner with a copy of current
software for this purpose.
9.5 UPDATE AND SUPPORT TO END USERS
Partner shall at all times encourage any End User/Reselling Part
to enter into a Software Update and Support Agreement with the
Software Provider which shall contain the terms and conditions as
specified in draft Update and Support Agreement, Appendix F.
The Update and Support Agreement will be signed between Software
Provider and End User/Reselling Part. Partner shall report to
Software Provider each time a new sale has been effected. Partner
is entitled to 40% of the first year revenue of the maintenance
fee, if Partner has assisted Software Provider to conclude an
Update and Support Agreement valid for the first year after
Partner's signing of a License Agreement with an End
User/Reselling Part. In addition to this, Partner shall report to
Software Provider each time a new sale has been effected that
affects the Software Update and Support Condition.
10. TITLE AND INTELLECTUAL PROPERTY RIGHTS
Partner acknowledges that any and all copyrights, trademarks,
patents and other intellectual property rights used or embodied in
or in connection with the Software including all documentation and
manuals relating thereto is and shall remain the property of
Software Provider and Partner shall not at any time after the
expire or termination of this agreement in any way question or
dispute the ownership or any other such rights by Software
Provider. The Software and related documentation provided by
Software Provider to Partner hereunder should bear a copyright
notice, which Partner shall preserve. Such notices shall be
preserved on the Software on-screen at sign-on, in object code, on
labels, and on diskette or tape jackets, as appropriate.
Partner also acknowledges that such trade marks copyrights and
other rights belonging to the Software Provider are only used by
Partner with the consent of Software Provider and during
continuation of this Agreement. Upon expire or termination hereof
Partner shall forthwith discontinue such use, without receipt of
compensation for such discontinuation, provided however that
Partner may continue to use such trade names as previously agreed
for the period following termination hereof for the purpose only of
continuing the measure of support of the Software required to be
provided by Partner hereunder unless Software Provider shall advise
Partner that such right has been revoked.
Partner shall not during or after the expire or termination of this
Agreement, without the prior written consent of Software Provider,
use or adopt any name, trade name, trading style or commercial
designation that includes or is similar to or may be mistaken for
the whole or any part of any trade ▇▇▇▇, trade name, trading style
or commercial designation used by Software Provider.
11. THE IN-HOUSE SOFTWARE
11.1 IN-HOUSE SOFTWARE LICENSE
Upon the signing of this Agreement, Partner hereby orders one (1)
Development License at the price specified in Appendix A to be
delivered according to the specification in Appendix G. (unit of
the Software for one (1) Designated System, as defined in Appendix
D, which shall be used for internal use and demonstrating purposes
only, as described in Appendix G). This in-house copy of the
Software, which shall be used by Partner in order to facilitate,
without limitations, training, support, development only, may not
be sold to any End User/Reselling Part.
If Partner would desire to purchase additional In-house Software,
to be used for other Designated Systems or other sites of Partner,
then Partner shall pay the price for the Software according to
above less the Additional In-house Discount as specified Appendix
G.
11.2 IN-HOUSE UPDATE AND SUPPORT
Software Provider shall provide maintenance on the In-house
Software in accordance with Update and Support Agreement, Appendix
F and as specified in Appendix G, that shall be valid, and paid for
by the Partner, for as long as this Agreement is valid. The price
will be set according to levels in Appendix F per year of the net
price that partner has paid for each in-house software license. It
is noted that the Update and Support Agreement, gives Partner
access to new releases and corrected versions of the Software.
11.3 IN-HOUSE SOFTWARE SUPPORT
Software Provider shall provide support with respect to the
In-house Software in accordance with the Update and Support
Agreement, Appendix F and G. The Update and Support Agreement shall
be valid, and paid for by the Partner at agreed price, for as long
as this Agreement is valid.
For the avoidance of doubt, the following services shall not be
included in the undertakings of Software Provider under this
agreement, but may, be provided by Software Provider on a
consultancy basis at the request of Partner subject to Software
Providers regular fees for such services.
a. consultancy and advice in connection with the research and
development;
b. development services; and
c. administrative services.
12. INDEMNITIES
12.1 SOFTWARE PROVIDER INDEMNITY,
In the event that the Software, or any part thereof is, or in the
reasonable opinion of Software Provider may become, the subject of
any clain-4 suit or proceeding for infringement of any Swedish or
foreign patent, trademark or copyright within the Territory, or in
the event of any adjudication that the Software, or any part
thereof, infringes any Swedish or foreign patent, trademark or
copyright within the Territory, or if the sublicense or use of the
Software, or any part thereof, is enjoined, Software Provider may,
at its option and expense:
a. procure for Partner the right under such patent, trademark
or copyright to use or sublicense as appropriate, the
Software or such part thereof, or
b. replace the Software, or part thereof with other suitable
programs or parts, or
c. suitably modify the Software, or part thereof, provided such
modified product is substantially similar to the Software in
terms of functionality and performance, or
d. if the use of the Software, or part thereof, shall be
prevented by injunction, refund the aggregate payments paid
therefore by Partner hereunder.
Partner agrees to notify Software Provider of any infringement of
the patents, trademarks or copyrights relating to the Software
immediately after it becomes aware of such and to a reasonable
extent provide Software Provider with information available to
Partner regarding such infringement. Software Provider shall have
the first right to bring legal proceedings against the infringer
and if requested to do so by Software Provider, Partner shall at
Software Providers option be joined or join as a nominal party to
such legal proceedings. The parties agree that they will
cooperate with each other and will provide each other with all
necessary information required for the prosecution of any
infringement.
13. LIMITATION OF LIABILITY
As long as Software Provider carries out its obligations under
this Agreement, Software Provider shall not be liable for any
costs or expenses incurred without its prior written
authorization in relation to any alleged infringement. Software
Provider also shall have no obligation to defend against, or to
pay, any costs, damages or attorneys' fees in relation to any
alleged infringement for any claim based upon:
a, the use of other than an unaltered release of the Software,
provided such unaltered release of the Software is provided
to Partner
c. the combination, operation or use of the Software with
programs or data which were not furnished by Software
Provider, if such infringement would have been avoided if
the programs or data furnished by others had not been
combined, operated or used with the Software, or
d. the use of the Software on or in connection with equipment
or software other than the Designated System(s) if such
infringement would have been avoided by use on or in
connection with the Designated System(s).
Software Provider shall not be liable for any damages to property
or else, which may occur when the Software is in the possession
of Partner.
Nor shall Software Provider be liable for damages to other
products of which the Software may form a part. Software
Provider's total liability arising out of or in connection with,
the Software and related services shall be limited as provided in
Section 13 last paragraph.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR TORT
DAMAGES OF ANY NATURE OR KIND WHATSOEVER, INCLUDING BUT NOT
LIMITED TO LOST PROFITS, IN CONNECTION WITH OR ARISING OUT OF THE
USE OR PERFORMANCE OF THE SOFTWARE OR DOCUMENTATION, EVEN IF THE
OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In no event will Software Provider be liable to Partner under this
Agreement with respect to damages arising under any claims or
aggregate of claims in any amount which exceeds the lowest amount
of (i) the aggregate amount of any remuneration paid hereunder or
(h) 500.000 SEK. The above stated limitations apply to all Orders
referring to this Agreement.
14. AUDIT RIGHTS
Software Provider shall have the right to direct an independent
certified public accounting and audit firm of national standing to
conduct, during normal business hours, an audit of the appropriate
records of Partner to trace the revenue generated subject to any
Agreement entered into between Partner and any End User with
respect to the Software, and to ensure the content of the License
Register. Such audit shall be at Software Provider's expense unless
the adjustment of any revenues under such Agreements would be
greater than five (5) per cent, in which case Partner shall pay
▇▇▇ ▇ ▇ 111 expenses associated with the audit and 0 adjustment
in fees due.
15. PAYMENT
Payment shall be effected against Software Provider's invoice
payable thirty (30) days net after issuance. Any payments due
thereafter shall bear an interest equivalent to annual fifteen
(15) per cent.
16. WARRANTIES
16.1 LIMITED WARRANTY
Software Provider does not warrant that the Software will be
error-free, and it is presumed that Partner understands that such
freedom from faults in Software can not be achieved, but if any
copy of the Software is reported to Software Provider within ninety
(90) days from the date of delivery to Partner's End Users to have
contained an error or malfunction, Software Provider shall use its
best effort to correct such error or malfunction or (at its option)
replace such copy of Software free of charge provided that:
a. the Software has been used at all times properly and in
accordance with instructions for use; and
b. no alteration, modification or addition has been made to the
Software, without Software Provider's prior written consent;
and
c. the alleged error or malfunction has been notified to
Software Provider within the warranty period specified
above.
Each claim of Partner under this warranty shall be sent in writing
to Software Provider specifying the type of Software involved and
the nature of the fault or defect. Upon receipt of such written
claim, Software Provider or its agent or representative shall have
the right to test or to inspect the Software at its location or to
have the Software dispatched to a point designated by Software
Provider or returned to Software Provider carriage pre-paid.
Software replaced or corrected under warranty shall be sent by
Software Provider to Partner carriage prepaid.
The Software Provider may attempt to correct software errors
through the means it determines to be most appropriate, whether by
telephone instructions, the issuance of updating documentation,
corrective code or other methods.
Notwithstanding the provisions above, Software Provider shall have
no obligations of responsibility (i) if the Software is not used on
the Designated System(s), (ii) if the Software has been subject to
an extreme power surge or electromagnetic field, whether or not
through the fault of Partner or its End Users, or (iii) if
corrections recommended by the Software Provider has not been
implemented.
Obligations of responsibility for the Software are limited in all
cases to software errors. Errors caused by hardware malfunctions or
failure are excluded.
16.2 RIGHTS
Software Provider represents and warrants that:
a) it has full power, rights and authority to enter into this
Agreement;
b) it owns legally and beneficially, or has the right to grants
the rights contained herein pertaining to, the copyright and
all other intellectual property rights in the Software;
c) the Software shall function in all material respect with the
functional descriptions in the Documentation.
16.3 NO OTHER WARRANTIES
Except for the express warranty in Clause 16.1 and 16.2 above,
Software Provider does not make any express or implied warranty
with respect to the Software, including without limitation any
implied warranty of merchantability or fitness for particular
purpose, and the express warranty stated above.
Software Provider does not warrant that the Software shall operate
with any Designated System as specified in Appendix, that the
Software shall satisfy Partners and End Users own specific
requirements or that copies of the Software other than those
provided or authorized by the Software Provider shall possess
functional integrity. Software Provider makes no warranties with
respect to fitness and operability of modifications not made by
the Software Provider.
Partner acknowledges that Software Provider has made no
representations regarding warranty other than as stated in Clause
12, 13 and Clause 16.
Corrections of faults shall as far as possible be made at the
premises of the Software Provider or at premises appointed by the
Software Provider.
17. TERM AND TERMINATION
17.1 TERM AND TERM OF NOTICE
This agreement shall come into immediate force and effect after
the agreement has been signed by both parties, and shall remain in
effect for an initial period of thirty-six (36) months. After the
expiration of the initial period, this Agreement shall be
automatically renewed for a period of two year at the time, unless
terminated by either party. The notice of termination be six (6)
months, and shall be given by registered letter.
17.2 TERMINATION FOR CAUSE
(i) Failure to fulfill obligations:
This agreement may be terminated immediately by either party if
the other party fails to fulfill any of its material obligations
under this Agreement and such default is not remedied within
thirty (3 0) days from the date on which written notice thereof
has been dispatched to the defaulting party, with the parties
seeking termination reserving the right to damages.
(ii) Bankruptcy or insolvency:
This Agreement may be terminated immediately in the event that
either party is declared insolvent, is adjudged bankrupt or files
a petition for bankruptcy, or reorganization under any bankruptcy
law, is expropriated or sequestrated or submits or has to submit
any other administrative or judicial matters of control.
Insolvency is defined as inability to pay debts as they become
due, and the excess of liability over assets. If this applies to
the Software Provider then the Partner is entitled to a copy of
the AMTrix source code, for the sole and only purpose of
fulfilling current contracts with end customers.
17.3 LICENSES TERMINATE
Upon termination of this Agreement, all licenses granted by
Software Provider to Partner shall terminate, and Partner shall
immediately discontinue using the Software. Partner shall
undertake to erase and delete all Software, which Partner may have
installed. Partner shall be obliged to certify in writing that
such erasure and deletion of the Software has been effected. In
addition, Partner shall hand over all originals, updates and
copies of information, which Partner has received, from Software
Provider with respect to the Software.
If the agreement is terminated Partner shall in writing inform
all. End Users/Reselling Parties with a letter that has been
agreed by Software Provider. Partner shall also provide Software
Provider with a copy on paper of the License Register.
Valid agreements with End Users/Reselling Parties shall not be
terminated as to their Software Agreements and their Update and
Support Agreements when this agreement terminates. Software
Provider will in such cases undertake the Update and Support
towards the End User.
18. GENERAL PROVISIONS
18.1 DISPUTES
This agreement shall be governed by and construed in accordance
with the laws of the kingdom of Sweden. The parties exclude the
application of the UN Convention on Contracts for the International
Sale of Gods. Any dispute regarding the interpretation or
application of this agreement shall be ultimately settled by
arbitration in accordance with the Swedish Act (1929:145) on
Arbitrators. Place of arbitration shall be Stockholm. Both parties
submit to the exclusive jurisdiction of the arbitral tribunal
subject to the said Act.
If, in the case of arbitration, the value of the sum claimed
obviously does not exceed SEK 350.000, then the dispute shall be
resolved by the District Court of Stockholm at the request of
either party to which jurisdiction both parties submit in such a
case.
18.2 SEVERABILITY
If any portion of this Agreement is declared invalid, the parties
agree that such invalidity shall not effect the validity of the
remaining parts of the Agreement, and further agree to substitute
for the invalid provision which approximates the intent and
economic effect of the invalid provision as closely as possible.
18.3 NOTICES
Any notice or other communication required or permitted to be sent
under this Agreement shall be in writing and shall be sent in
registered letter, return receipt requested, postage prepaid, to
the address of the other party as set forth above, or to such
address as the party shall have last furnished to the other party
in writing, and shall be deemed to have been received by the other
party five (5) days after the deposit in the mail.
18.4 ASSIGNMENT
Except as otherwise expressly provided herein, neither this
Agreement, any license granted hereunder, nor any Software may be
assigned, sublicensed or otherwise transferred by Partner without
Software Provider's prior written consent.
18.5 WAIVER
A waiver of a breach or default under this Agreement shall not be a
waiver of any other breach or default. Failure or delay by either
party to enforce compliance with any term or condition of this
Agreement shall not constitute a waiver of such term or condition.
18.6 ENTIRE AGREEMENT
This Agreement, together with the Appendices, represents,
constitutes and expresses the entire Agreement between the parties
with respect to the subject matter contained herein and supersedes
any previous or simultaneous oral or written communications,
representations, understandings or agreements with respect thereto,
18.7 MODIFICATIONS
The terms of this Agreement may be modified only in writing signed
by duly authorized representatives of both parties.
18.8 HEADINGS
The titles of the Sections and Subsections of this Agreement are
for convenience or reference only, and are not to be considered in
construing this Agreement.
19. FORCE MAJEURE
No delay, failure or default in performance of any obligation
hereunder shall constitute a breach of this Agreement, to the
extent that such failure to perform, delay or default arises out
of cause beyond the control and without the negligence of the
party otherwise chargeable with failure, delay or default,
including without limitation: action or inaction of governmental,
civil, or military authority; fire; strike, lockout, or other
labor dispute; flood; war; riot; earthquake; natural disaster;
breakdown of public or common carrier communications facilities;
or computer malfunction; or act, negligence or default of the
other party. This Section 19 shall in no way limit the right of
either party to this Agreement to make any claim against third
parties for any damages suffered due to said causes.
This Agreement has been executed in two counterparts of which each
party has taken one.
PLACE AND DATE
Solna, 1999-11-01
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Nordic Country Manager
Viewlocity (Frontec AMT AB)
PLACE AND DATE
Solna, 1999-11-01
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President/CEO
Frontec AB