OneSoft Corporation The ▇▇▇▇ Group, Inc.
OneSoft Corporation has omitted from this Exhibit 10.24 portions of this
Agreement for which OneSoft Corporation has requested confidential treatment
from the Securities and Exchange Commission. The portions of the Agreement for
which confidential treatment have been requested have been filed separately with
the Securities and Exchange Commission. Such omitted portions have been marked
with an asterisk.
EXHIBIT 10.24
ONESOFT MANAGED APPLICATION AND SERVICES AGREEMENT ***********
THIS AGREEMENT is entered into as of November 17, 1999 by and between OneSoft
Corporation ("ONESOFT"), a Delaware Corporation having an office at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and The ▇▇▇▇ Group, Inc.
("CLIENT"), having an office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇.
The parties hereby agree as follows:
ONESOFT STANDARD LICENSE AND SERVICES TERMS AND CONDITIONS
--------------------------------------------------------------------------------
1. DEFINITIONS
(a) This "Agreement" means this document entitled OneSoft Managed Application
and Services Agreement together with each Product Addendum, Scope of Work,
Change Order, or Schedule, attached hereto and/or thereto, collectively (and
each Product Addendum, Scope of Work, Change Order, or Schedule attached hereto
or thereto, is hereby incorporated into this Agreement by reference and is made
a part of this Agreement as if fully set forth herein); and
(b) "Product Addendum" means a document attached hereto and signed by the CLIENT
and ONESOFT that identifies Software Product(s) licensed under this Agreement,
along with any additional terms and conditions for the licensing or management
thereof; and
(c) "Scope of Work" means a document attached hereto and signed by the CLIENT
and ONESOFT (including any Schedule(s) attached thereto) that identifies the
services to be provided under this Agreement, along with any additional terms
and conditions for the performance and/or management thereof; and
(d) "Change Order" means a document in either paper or electronic form (i.e.
email that can be reasonably dated, traced and/or otherwise identified) that
originates from an authorized representative of CLIENT (including any
Schedule(s) attached thereto), and is accepted by ONESOFT, authorizing
additional services or products under a Scope of Work and/or Product Addendum;
and
(e) "Schedule" means an attachment to this Agreement, Scope of Work, Product
Addendum, or Change Order and which provides additional or collateral
information for the document to which it is attached; and
(f) "Software Product" means the object code version of a ONESOFT software
product that is identified in an attached Product Addendum (including any
Schedule(s) attached thereto); and
(g) "Point of Contact" means a contact point, named with respect to ONESOFT or
CLIENT, in Paragraph 30 or in a Product Addendum, Scope of Work or Change Order;
and
(h) "Server" means, if with respect to a Software Product licensed for use on a
server furnished and operated by ONESOFT, then a server furnished and operated
by ONESOFT under this Agreement and described in a related Product Addendum,
Scope of Work, Change Order, or Schedule, or if with respect to a Software
Product licensed for use on a server furnished and operated by CLIENT then a
server used by the CLIENT that meets the requirements set forth in technical
documentation for a Software Product and that is installed at a location within
the United States; and
(i) "Site" means a World Wide Web site with one or multiple domain name(s)
mapped to one IP address and supported by a single instance of a database
schema; and
(j) "Processor" means a single Intel standard processor installed in a Server
that operates a Software Product; and
(k) "User" means a single individual accessing or using the Software Product;
and
(l) "Patch" means a one-time correction provided by ONESOFT to address a
reported problem in a Software Product; and
(m) "Letter Release" means a version of a Software Product that is generally
released by ONESOFT to its supported customers for that Software Product, and
which is identified by the addition of a letter to the previous Point Release
number (such as version 1.5A); and
(n) "Point Release" means a version of a supported Software Product that is
generally released by ONESOFT to its supported customers for that Software
Product, and which is identified by a decimal number change (such as 1.0 to
1.1); and
(o) "Version Release" means a version of a supported Software Product which is
identified by a number followed by a decimal point and a zero (0) (such as
version 2.0) for which ONESOFT may charge a separate license fee to its
supported customers if new functionality is requested and/or required; and.
(p) "Upgrade" means an upgrade to a new Software Product Release which contains
one or more significant new major features for which ONESOFT may charge a
separate license fee to its supported customers if new functionality is
requested and/or required; and
(q) "Workaround" means a procedure to avoid a reported problem in a Software
Product; and
(r) "Support Materials" means anything delivered by ONESOFT to CLIENT under its
Software Maintenance
Confidential Information
OneSoft Corporation The ▇▇▇▇ Group, Inc.
Services, including, but not limited to, any Patches, Workarounds, Letter
Releases, Point Releases, and any related documentation; and
(s) "Software Maintenance Services" means, (i) when used in connection with a
Software Product license, other than a Managed Application license, maintenance
consisting of the shipment to CLIENT of Patches, Workarounds, Letter Releases,
and Point Releases as generally released by ONESOFT for a Software Product, as
well as Version Releases and Upgrades if new functionality is not required; or
(ii) when used in connection with a Software Product Managed Application
license, maintenance consisting of the delivery to CLIENT of Patches,
Workarounds, Letter Releases, and Point Releases as generally released by
ONESOFT for a Software Product, as well as Version Releases and Upgrades if new
functionality is not required.
(t) "Services" (to the extent provided for under a Scope of Work or Change Order
attached hereto) shall mean and include, without limitation, professional
service bureau tasks, managed application services, co- location services,
customer support services, transaction processing services, or other services as
set forth in such Scope of Work or Change Order.
(u) "Managed Application Services" refers to services provided by the Internet
Solutions Center, or their designee, that support the successful operation of
the Software Product. This includes application monitoring, on-going
configuration management, daily application data source and store threshold
management, performance tuning, and applying patches.
(v) "Co-Location Services" refers to the services provided by the Internet
Solution Center or their designee, that support the successful operation of the
systems hardware (e.g., application and database servers, routers) necessary to
run the Software Product.
2. LICENSE GRANT
(a) Subject to the terms and conditions of this Agreement, ONESOFT grants to
CLIENT, and CLIENT accepts, a non-exclusive limited nontransferable license to
use on a Server, in the United States each Software Product identified in a
Product Addendum, in accordance with the provisions thereof, which Product
Addendum is incorporated herein by reference.
(b) CLIENT agrees to comply with all the terms and conditions of third party
software sublicenses that are provided to CLIENT.
(c) The CLIENT agrees that it shall not:
(i) Copy any Software Product for any purpose other than for archival or
emergency restart purposes or program error verification; and/or
(ii) Sublicense, rent or otherwise make a Software Product available to any
third party for a fee or otherwise whether in a service bureau environment
or otherwise; or
(iii) Reverse engineer, decompile, disassemble, or modify a Software Product
or separate a Software Product into components or its component files,
recreate, or attempt to determine the makeup of any Software Product.
3. DELIVERY
ONESOFT shall deliver to CLIENT a copy of each Software Product for which a
license is granted under this Agreement, in an electronic medium or by direct
loading onto a designated Server over the Internet.
4. SOFTWARE PRODUCT RELATED FEES
(a) CLIENT agrees to pay to ONESOFT, in accordance with the provisions of this
Agreement, and each Product Addendum, the applicable license fees, maintenance
fees, and other applicable fees related to the Software Products.
(b) All license fees, maintenance fees and other applicable fees for a perpetual
license are due upon the execution of the requisite Product Addendum.
(c) CLIENT must pay ************************ Recurring Monthly Managed
Application Services fees upon the execution of the requisite Product Addendum.
5. LICENSE TERM
(a) Each license granted with respect to a Software Product under this Agreement
shall continue in full force and effect for the term specified in the related
Product Addendum, unless earlier terminated in accordance with this Agreement or
the Product Addendum.
(b) Software Maintenance Services obligations of ONESOFT shall terminate to the
extent that related Software Product license has terminated.
6. SOFTWARE PRODUCT MAINTENANCE
(a) Subject to the terms and conditions of this Agreement, ONESOFT will provide
Software Maintenance Services to CLIENT for each Software Product for so long as
CLIENT has timely satisfied all payment obligations for Software Maintenance
Services Fees as defined in and set forth in the applicable Product Addendum.
After October 31, 2001, ONESOFT shall have no obligation to provide Software
Maintenance Services unless the installed Software Product is the then-current
Version Release and is utilized on a Server of a type supported by ONESOFT.
(b) If CLIENT, at the time ONESOFT releases a Version Release or an Upgrade to a
Software Product, is then-currently entitled to Software Maintenance Services
under this Agreement, then upon payment of any applicable fee set by ONESOFT for
such Version Release or Upgrade, ONESOFT shall provide such Version Release or
Upgrade to CLIENT to replace CLIENT's then-installed version of the Software
Product.
(c) CLIENT agrees that if a Software Product is installed on a Server not
furnished and operated by ONESOFT, then CLIENT will install and maintain the
equipment and Software Product as required by ONESOFT to permit Software
Maintenance Services to be delivered electronically with respect to such
Software Product.
(d) ONESOFT shall have no obligation under this Agreement to furnish maintenance
and/or support for a Software Product except as expressly provided herein, or
under an applicable Product Addendum.
7. SERVICES RETENTION AND TERMINATION
(a) To the extent provided under a Scope of Work or Change Order, CLIENT hereby
retains ONESOFT to provide certain services in accordance with the provisions of
this Agreement and such Scope of Work or Change Order ("Services"). Services may
include, without limitation professional service bureau tasks, managed
application services, Co-location Services, customer technical support services,
transaction processing services, or other services as set forth in such Scope of
Work or Change Order.
(b) ONESOFT agrees to use commercially reasonable efforts to perform such
Services.
(c) Except as otherwise provided herein or therein, either party may terminate a
Scope of Work or Change Order at any time with or without cause by giving
************** written notice to the other party; provided, however, that: (i)
in any event, ONESOFT shall be paid in full for all services it performs before
or during such *************; (ii) if ONESOFT terminates Scope of Work
*********** under this Section 7(c) then ONESOFT will pay the reasonable
Confidential Information 2
OneSoft Corporation The ▇▇▇▇ Group, Inc.
costs of moving the site(s) covered under such Scope of Work to another hosting
service.
(d) With respect to Services under a Scope of Work for Managed Application
Services that relates to a Product Addendum for a month-to-month Software
Product license, such Services shall continue (and shall not be subject to the
provisions of Subparagraph (c)), unless terminated in accordance with the
provisions of this Agreement, in full force and effect for a period of
************* from the Commencement Date (as defined in the applicable Scope of
Work). Any early termination, for any reason, of any Scope of Work, Product
Addendum, or Change Order of this Agreement shall not relieve CLIENT of its
payment obligations under this Subparagraph (d) except as provided in
Subparagraph (f).
(e) With respect to Services under a Scope of Work for Co-Location Services,
such Services shall continue (and shall not be subject to the provisions of
Subparagraph (c)), unless terminated in accordance with the provisions of this
Agreement, in full force and effect for a period of *********** from the
Commencement Date (as defined in the applicable Scope of Work). Any early
termination, for any reason, of any Scope of Work and/or Change Order of this
Agreement shall not relieve CLIENT of its payment obligations under this
Subparagraph (d) except as provided in Subparagraph (f).
(f) CLIENT may request an early termination of a Managed Application Service or
Co-Location Scope of Work or Product Addendum with the provision for a dedicated
Server package, or with a provision for a shared Server package, for its
convenience; provided, however, that CLIENT shall be obligated to pay a fee for
such termination in an amount equal to all fees that would be due, but for the
termination, during the ********** after the date of termination.
8. SERVICES FEES AND GENERAL PAYMENT TERMS
(a) CLIENT agrees to pay ONESOFT in accordance with the provisions of this
Paragraph 8. Except as otherwise provided in a Scope of Work, Change Order, or
Schedule, CLIENT shall pay ONESOFT for Services at its then current Time and
Material Rates as offered to its customers generally.
(b) Except as otherwise provided in a Scope of Work, Change Order, or Schedule,
CLIENT shall pay ONESOFT a deposit of ****** percent (***%) of all Services fees
identified in a quotation/estimate before commencement of work by ONESOFT; the
remaining balance to be billed for as incurred. The deposit to be refundable if
the amount exceeds work performed under the requisite Scope of Work, Change
Order, or Schedule.
(c) CLIENT shall be responsible for and shall pay (and agrees to indemnify and
hold ONESOFT harmless from) all sales, use, gross receipts, value-added, GST,
data processing excise, personal property or similar taxes or duties (including
interest and penalties imposed thereon), which are levied or imposed by reason
of the Software Products, Services and other deliverables provided hereunder;
provided, however, that CLIENT shall not be responsible for paying any taxes
imposed on the net income or profits of ONESOFT.
(d) ONESOFT shall invoice CLIENT for payments due under this Paragraph 8 on a
monthly basis. Each ONESOFT invoice shall be due net ********* days from the
date of invoice. CLIENT acknowledges and agrees that under the terms of this
Agreement, no CLIENT Purchase Order ("PO") is required for the payment of
ONESOFT invoices by CLIENT. In the event that a PO is required by the CLIENT for
its internal processes, CLIENT shall issue such PO in a timely manner such that
ONESOFT invoices may be issued and paid in accordance with the provisions of
this Paragraph 8 and any failure by CLIENT to do so shall not excuse CLIENT from
its obligations under this Paragraph 8.
(e) CLIENT shall pay in full any travel expenses incurred by ONESOFT that result
from providing service to CLIENT under this Agreement in geographical locations
other than Annandale, VA, provided such expenses are approved in writing by
CLIENT.
(f) CLIENT shall use its best efforts to advise ONESOFT of any dispute regarding
an invoice within ****** days of the date of invoice. Any disputed item
shall be reconciled, if necessary, promptly upon settlement of the dispute.
CLIENT shall not have any right to withhold or setoff any amounts due hereunder.
(g) Notwithstanding any other provision of this Agreement, if CLIENT fails to
pay any ONESOFT invoice by the due date, ONESOFT may, in its sole discretion,
upon ******* notice if such failure has not been cured by the end of such
******* period, suspend all or any part of its Services to CLIENT until payment
is received or, upon notice to CLIENT, terminate Services under this Agreement.
ONESOFT shall incur no liability to CLIENT if ONESOFT so suspends or terminates
its Services. ONESOFT also reserves the right to charge interest at the maximum
rate allowed by law on all amounts past due, and to assert appropriate liens to
ensure payment.
(h) If it is necessary to enforce the provisions of this Agreement, the
prevailing party in any such litigation, arbitration, or other legal proceeding
shall recover from the non-prevailing party, all costs associated with the
litigation, including reasonable attorney's and paralegal's fees at the trial
and all appellate levels.
9. CONFIDENTIAL INFORMATION
(a) Each party hereby acknowledges that it may receive confidential information
of the other party including, without limitation, software, computer programs,
object code, source code, database schemas, specifications, flow charts,
marketing plans, financial information, business plans and procedures, the terms
of this Agreement, ONESOFT's Client Guide, Software Products, employee
information, and other confidential information (hereinafter referred to as
"Confidential Information"). Confidential Information does not include (i)
information independently developed by the recipient without reference to the
other party's Confidential Information; (ii) information in the public domain
through no wrongful act of the recipient, or (iii) information received by the
recipient from a third party who was rightfully in possession of such
information and had no obligation to refrain from disclosing it.
(b) Except as expressly authorized herein or as required by law, subpoena or
court order the recipient of Confidential Information agrees that during the
term hereof, and at all times thereafter, it shall not use, commercialize or
disclose such Confidential Information to any person or entity, except to its
own employees and consultants having a need to know and to such other recipients
as the other party may approve in writing. Each party shall use at least the
same degree of care in safeguarding the other party's Confidential Information
as it uses in safeguarding its own Confidential Information, but in no event
shall less than reasonable diligence and care be exercised.
(c) All Confidential Information supplied by a party to the other party pursuant
to this Agreement shall remain the exclusive property of the supplying party.
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OneSoft Corporation The ▇▇▇▇ Group, Inc.
(d) CLIENT agrees that it will not remove any proprietary, trademark, copyright,
confidentiality, patent or other intellectual property notice or marking from
any Software Product, documentation, display, media or other materials delivered
under this Agreement, or any copies thereof.
(e) CLIENT agrees that it will not violate any proprietary rights in the
Software Products and shall not reverse engineer, decompile, disassemble, or
modify a Software Product or separate a Software Product into components or its
component files, recreate, or attempt to determine the makeup of any Software
Product. CLIENT agrees that any information discovered thereby shall be deemed
ONESOFT's Confidential Information.
(f) CLIENT shall keep Software Products in its possession strictly confidential
and protected.
(g) CLIENT shall not use or reproduce the Software Products, or any
documentation or media or other materials associated therewith, except as
permitted by the terms of this Agreement.
(h) In the event that a party is required by law or judicial or administrative
process to disclose Confidential Information, such party shall, insofar as
practicable, promptly notify the party whose Confidential Information is
required to be disclosed and allow the party a reasonable opportunity to oppose
disclosure.
10. OWNERSHIP AND OTHER PROPRIETARY RIGHTS
(a) Subject to the grant of Software Products licenses hereunder and as
otherwise expressly provided in this Paragraph 10, "Software," "Tools," and
"Objects" (as such terms are defined in this Paragraph 10), including all
originals and all copies thereof regardless of form, are and shall remain the
sole and exclusive property of ONESOFT and shall be deemed its Confidential
Information.
(b) Except as expressly provided in this Agreement, CLIENT does not acquire any
right or license in ONESOFT's Software, Tools or Objects.
(c) "Tools" means ONESOFT's proprietary information and know-how used at any
time by ONESOFT in the conduct of its business, including without limitation,
technical information, designs, templates, software modules, processes,
methodologies, systems used to create computer programs or software, procedures,
code books, computer programs, plans, or any other similar information including
improvements, modifications or developments thereto.
(d) "Objects" means ONESOFT's proprietary reusable software code.
(e) "Software" means any and all of ONESOFT's proprietary software code.
(f) Each party understands and agrees that any use or disclosure of any
information or materials in violation of this Paragraph 10 will cause the other
party irreparable harm, will leave such party with no adequate remedy at law,
and will entitle such party to injunctive relief in addition to all other
remedies available. A party that violates its obligations hereunder, shall
reimburse the other party for reasonable costs and expenses incurred in
enforcing its rights with respect to such violation.
(g) Each ********* developed under an attached Scope of Work or Change Order,
and other ********* identified and originated or prepared by ONESOFT as a
********** pursuant to a specific Scope of Work or Change Order shall be
********** and CLIENT is hereby granted a ********** license to use such
application; provided, however, that CLIENT may not unbundle from the *********
any ************* and/or *********, apart from their use as an ********** of the
*********. ONESOFT agrees that any *********** or *********** developed under
this Agreement ("********") has been ********** or ************ to be included
in a **********. All ********** is and ********* the ********* and all ********
and ********* and *********** to be a ********** and ***** in the ***********
under this Agreement. To the extent that *********** does not by operation of
law ********* or the ********* is not **********, all ******** and
*******************. ********* agrees to give ******** at *********** any
*********** to ******* the ***********.
(h) Except as expressly set forth in this Agreement, this Paragraph 10 does not
constitute a license to use Software, Software Products, Tools and Objects,
which CLIENT must separately license from ONESOFT as necessary to use any custom
application.
(i) Except as described in Subparagraph 28 (b), nothing in this Agreement shall
be deemed to limit ONESOFT's rights to develop and market functionally
comparable products or deliverables based on the same general concepts,
techniques and routines used in connection with any custom application.
(j) CLIENT acknowledges and agrees that, unless otherwise specified in any Scope
of Work, Product Addendum, and/or Schedules attached hereto, ONESOFT maintains
the ownership of all hardware and software upon which, and from which, all
ONESOFT Managed Application Services are provided hereunder.
(k) CLIENT warrants that all Data (as defined) delivered to ONESOFT by CLIENT
does not, and shall not, infringe or violate any United States copyright, United
States trademark, United States trade secret, United States patent or other
United States intellectual property right, and that CLIENT has the right to use,
disclose, publish, translate, reproduce, or deliver any such Data. CLIENT agrees
to indemnify and hold harmless ONESOFT, its directors, officers, employees and
agents, against any and all losses, liabilities, judgments, awards and costs
(including reasonable legal fees and expenses), arising out of or related to any
claim that Data infringes or violates a United States copyright, United States
trademark, United States trade secret, United States patent or other i United
States ntellectual property right.
(l) "Data" as used in this Paragraph 10 mean any data, software or other
information including, but not limited to, writings, designs, specifications,
reproductions, pictures, drawings, or other graphical representations, and any
works of a similar nature.
(m) With respect to any software, data, content or other materials supplied by
CLIENT, ONESOFT is hereby granted the nonexclusive right and license to use the
same as necessary in providing the Services. CLIENT represents and warrants to
ONESOFT that utilization of any software, data, content or other materials
supplied by CLIENT in the manner contemplated by the terms of the Agreement, and
the Scope(s) of Work, will not infringe or misappropriate any copyright,
trademark, patent, trade secret or other intellectual property right of any
third person. CLIENT represents and warrants to ONESOFT that the use of any
software provided by the CLIENT for ONESOFT to manage under this Agreement or
Scope(s) of Work, when used as contemplated by the terms of this Agreement or
the Scope(s) of Work, will not infringe or misappropriate any copyright,
trademark, patent, trade secret or other intellectual property right of any
third person.
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(n) Subject to Section 10(g), all software modifications (whether or not
specially ordered by CLIENT) developed by ONESOFT, any discoveries made,
improvements, modifications, adaptations, or developments by ONESOFT (whether or
not at CLIENT's request pursuant to this Agreement or any other agreement
between the parties), are and shall remain, the exclusive property of ONESOFT,
unless otherwise provided under such other agreement, signed by both parties.
(o) Unless otherwise agreed in writing, nothing in this Agreement shall be
deemed to authorize the CLIENT to use any copyright, name, trademark, service
▇▇▇▇, or patent of ONESOFT.
11. PUBLIC RELATIONS
(a) ONESOFT shall have the right to release a selection announcement to the
public. CLIENT shall provide a supporting quote and shall have right to review
final release.
(b) The parties shall have the right to disclose their relationship with the
other party in promotional, advertising, and marketing materials.
(c) ONESOFT shall have the right to use CLIENT graphics, logos, imagery, and its
URL in ONESOFT's promotional, advertising, and marketing materials.
(d) CLIENT agrees to serve as a reference for potential press, analyst and
prospective customers when approached to do so by ONESOFT.
(e) ONESOFT reserves the right to provide CLIENT with ownership graphics and any
associated hypertext links, that shall be placed on the Web pages resulting from
the selection of a registered domain name URL or Web page that displays
functionality of a Software Product, subject to CLIENT's approval which shall
not be unreasonably withheld or delayed.
12. MARKS AND PATENTS
(a) CLIENT acknowledges that "OneSoft(TM)" and all other Software Product names
are or include trademarks, and/or service marks, and are the intellectual
property of the ONESOFT. Unless otherwise agreed in writing, nothing herein
shall be deemed to authorize the CLIENT to use any pending and/or existing name,
trademark and/or service ▇▇▇▇ of ONESOFT.
(b) CLIENT acknowledges that any underlying technology, know-how, or process
used in the design, development, programming, or coding of ONESOFT's Software,
Software Products, Tools, or Objects, is the intellectual property of ONESOFT,
and certain of the same are protected by Patents or Patents Pending.
13. LIMITATIONS ON WARRANTIES AND LIABILITY
(a) ONESOFT warrants only that each Software Product, at the effective date that
such Software Product is being used on a live Internet site and for a period of
one hundred and twenty days (120) therefrom, is capable of performing
substantially the functions described in ONESOFT's published technical
documentation at such time for such Software Product, or any product description
that accompanies a Product Addendum. ONESOFT does not warrant that the operation
of any Software Product will be uninterrupted or error free, however, exclusive
remedies in connection with this limited warranty are provided for under
Subsection 13 (e) herein.
(b) ONESOFT warrants that each Software Product shall not infringe any valid
United States Copyright, United States Patent or United States Trademark. In the
event such warranty is breached, ONESOFT agrees to defend any and all actions
alleging any such infringement that may be brought against CLIENT during the
term of this Agreement, and to pay all damages and costs finally awarded against
CLIENT in such actions or suits on account of such infringement provided that:
(i) ONESOFT shall have received from CLIENT prompt notice of the
commencement of any such action;
(ii) CLIENT, and where applicable, those for whom CLIENT is in law
responsible, shall cooperate fully with ONESOFT in defense of the action;
(iii) The action shall not have resulted from the use of any Software
Product for purposes other than those for which it was authorized and
designed, or the use of any Software Product in combination with software or
other products not supplied by ONESOFT, or where the infringement would have
been avoided by use of the then current version of any of the Software
Products;
(iv) ONESOFT in its sole discretion instead of defending such action may
procure for CLIENT the right to continue the use of the Software Products
subject to such action or it may replace or modify such Software Products so
to become non-infringing or it may refund a portion of the license fees for
such Software Products as reduced based upon a five year straight line
amortization of such fees.
(c) A medium on which a Software Product is furnished is warranted to be free of
defects in materials and workmanship under normal use for a period of thirty
(30) days from the date of delivery of the Software Product.
(d) ONESOFT warrants that its Software is designed to be used in connection with
dates in the range of **** through **** and that the Software will operate
during each such time period without error relating to date data; provided,
however, that this warranty does not apply to any error caused by use in
combination with software or other products not supplied by ONESOFT.
(e) ONESOFT guarantees a CLIENT platform uptime of ********** percent (****** %)
of the time. ONESOFT will calculate the platform's unavailability in any given
calendar month at the written request of the CLIENT. Platform unavailability
will consist of the number of minutes that the application components are not
available to the CLIENT, excluding unavailability resulting from or caused by
scheduled ONESOFT maintenance (which ONESOFT will use reasonable efforts to
co-ordinate with CLIENT as practicable given the large number of sites that
ONESOFT supports), applications provided by CLIENT, acts, omissions and/or
failure of CLIENT or third party supplier equipment or facilities, any use of
the platform authorized by CLIENT, or for any reason beyond ONESOFT's reasonable
control. ONESOFT also guarantees to maintain data storage, back-up and disaster
recovery procedures that are considered standard within the industry.
(f) REMEDIES:
(i) IF CLIENT NOTIFIES ONESOFT IN WRITING, WITHIN *********** DAYS OF THE
DATE THAT A SOFTWARE PRODUCT IS BEING USED ON A LIVE INTERNET SITE,
IDENTIFYING A SOFTWARE PRODUCT OF ANY SIGNIFICANT ERROR OR FAILURE OF SUCH
SOFTWARE PRODUCT COVERED BY THE EXPRESS WARRANTIES IN SUBPARAGRAPHS (a) OR
(c) OR (d), ONESOFT SHALL USE ALL COMMERCIALLY REASONABLE EFFORTS TO
PROMPTLY CORRECT ANY SUCH SIGNIFICANT ERROR OR FAILURE.
(ii) THE WARRANTIES AND LIMITATIONS SET FORTH IN THIS PARAGRAPH 13
CONSTITUTE THE ONLY WARRANTIES OF ONESOFT WITH RESPECT TO ANY SOFTWARE
PRODUCT OR ITS SUPPORT OR MAINTENANCE. SUCH WARRANTIES ARE IN LIEU OF, AND
ONESOFT HEREBY DISCLAIMS, ALL OTHER WARRANTIES, STATUTORY OR OTHERWISE,
EXPRESS OR
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OneSoft Corporation The ▇▇▇▇ Group, Inc.
IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES OF CLIENT
SHALL BE LIMITED TO THOSE PROVIDED IN THIS PARAGRAPH 13. NO AGREEMENTS
VARYING OR EXTENDING THE FOREGOING WARRANTIES, REMEDIES OR LIMITATIONS WILL
BE BINDING ON ONESOFT UNLESS IN WRITING AND SIGNED BY A DULY AUTHORIZED
OFFICER OF ONESOFT.
(iii) ONESOFT REPRESENTS THAT ITS PROFESSIONAL SERVICES PERSONNEL WILL BE AT
A LEVEL OF SKILL AND COMPETENCY THAT IS CONSIDERED STANDARD FOR THE
INDUSTRY, AND THAT PROFESSIONAL SERVICES RENDERED WILL SUBSTANTIALLY COMPLY
WITH THE WRITTEN SPECIFICATIONS DRAFTED BETWEEN THE PARTIES FOR ANY GIVEN
PROJECT. THE WARRANTIES AND LIMITATIONS SET FORTH IN THIS PARAGRAPH 13
CONSTITUTE THE ONLY WARRANTIES OF ONESOFT WITH RESPECT TO ANY PROFESSIONAL
SERVICES. SUCH WARRANTIES ARE IN LIEU OF, AND ONESOFT HEREBY DISCLAIMS, ALL
OTHER OTHER WARRANTIES, STATUTORY OR OTHERWISE , EXPRESS OR IMPLIED, WITH
RESPECT TO THE SERVICES RENDERED OR THE RESULTS OBTAINED FROM ONESOFT'S
WORK, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES OF CLIENT SHALL BE LIMITED
TO THOSE PROVIDED IN THIS PARAGRAPH 13. ONESOFT'S TOTAL LIABILITY UNDER THIS
AGREEMENT SHALL BE LIMITED TO THE GREATER OF THE AGGREGATE FEES RECEIVED BY
ONESOFT FROM CLIENT HEREUNDER DURING THE THREE (3) CALENDAR MONTHS PRECEDING
THE TIME CLIENT'S CLAIM AROSE, OR WITH RESPECT TO THE SPECIFIC SCOPE OF WORK
UNDER WHICH THE CLAIM AROSE DURING THE TWELVE (12) CALENDAR MONTHS PRECEDING
THE TIME CLIENT'S CLAIM AROSE, ALL NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSES OF ANY LIMITED REMEDY.
14. AUDIT
(a) CLIENT agrees to maintain complete and accurate records containing all data
reasonably required for verification of its compliance with the terms of this
Agreement. If ONESOFT has reasonable basis to believe that CLIENT is not in
compliance with the terms of this Agreement ONESOFT, or its authorized
representative, shall have the right, during normal business hours, and upon at
least five business days prior notice, to physically inspect any Server upon
which any Software Product is installed, and to audit and analyze the relevant
records of the CLIENT, to verify compliance with the terms of this Agreement.
(b) CLIENT also agrees to permit remote license auditing of its web site by
ONESOFT to verify CLIENT's compliance with the terms of this Agreement and the
licenses granted hereunder.
15. INDEMNIFICATION
(a) Indemnification by ONESOFT. Except to the extent ONESOFT has acted at
--------------------------
CLIENT's direction or in accordance with CLIENT's specifications, ONESOFT will
indemnify, defend and hold harmless CLIENT from all losses, liabilities,
judgments, awards and costs (including reasonable attorneys' fees) arising from
a third party claim against CLIENT based on an actual or alleged:
(i) Failure by ONESOFT to perform its obligations under this Agreement;
(ii) Breach of ONESOFT's representations and warranties;
(iii) Acts or omissions constituting gross negligence or willful misconduct,
committed by ONESOFT,
(iv) Failure by ONESOFT to comply with governmental laws and regulations;
(v) Infringement by ONESOFT of United States patents, United States
copyrights, United States trademarks, United States trade secrets and other
United States intellectual property rights.
(vi) This Subparagraph (a) shall not apply to claims arising as a result of
CLIENT's improper use of ONESOFT's products or services or other
deliverables under this Agreement.
(b) Indemnification by CLIENT. CLIENT will indemnify, defend and hold harmless
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ONESOFT from all losses, liabilities, judgments, awards and costs (including
reasonable attorneys' fees) arising from a third party claim against ONESOFT
based on an actual or alleged:
(i) Failure by the CLIENT to perform its obligations under this Agreement;
(ii) Breach of CLIENT's representations and warranties;
(iii) Acts or omissions constituting gross negligence or willful misconduct,
committed by CLIENT; or
(iv) Failure by CLIENT to comply with governmental laws and regulations; or
(v) Infringement by CLIENT of United States patents, United States
copyrights, United States trademarks, United States trade secrets and other
United States intellectual property rights.
(c) Notice of Claim. If a claim covered under this Paragraph 15 appears likely
---------------
or is made, the party against whom the claim is made (hereinafter referred to as
the "Indemnitee") will promptly provide the other party (hereinafter referred to
as the "Indemnitor") with notice of such claim. If a claim for infringement is
made, ONESOFT may elect to avoid the infringement by:
(i) Obtaining the necessary rights for the Indemnitee to continue to use
the data or software at issue; or
(ii) Modifying the data or software at issue at its expense.
16. INJUNCTIVE RELIEF
The parties acknowledge that monetary damages may not be an adequate remedy if a
party breaches its obligations under Paragraphs 2(b) & (c), 9, 10 or 12, since
such breach will result in irreparable harm. The parties therefore agree that,
in the event of any such breach, the non-breaching party shall be entitled to
appropriate mandatory or prohibitory injunctive relief against the breaching
party, in addition to any other remedies at law, in equity or under this
Agreement. A party substantially prevailing in an action for injunctive relief
in connection with this Agreement shall be entitled to recover its costs
(including without limitation reasonable attorneys' fees) from the other party.
17. TERMINATION
(a) Unless otherwise expressly provided for in this Agreement, either party may
terminate this Agreement or any Scope(s) of Work and/or Change Order(s) and/or
Product Addendum(s), and/or any related licenses granted hereunder or
thereunder, by giving the other party written notice to that effect, effective
on the date of receipt of such notice, if:
(i) The other party enters into liquidation, whether or not voluntarily,
or a receiver is appointed to all or any part of its assets, or the other
party becomes bankrupt or insolvent or enters into any arrangement with its
creditors, or takes or suffers any similar action in consequence of debt or
becomes unable to pay its debts as they fall due; or
(ii) The other party materially breaches this Agreement and fails to cure
such breach to the non-breaching party's satisfaction within ********* days
of having received written notice of such breach.
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OneSoft Corporation The ▇▇▇▇ Group, Inc.
(b) In the event that a party materially breaches this Agreement, the non-
breaching party may terminate this Agreement if the breaching party fails to
cure such breach within ********* days of having received written notice of such
breach.
(c) If a license granted by ONESOFT is properly terminated for any reason,
CLIENT shall, on the effective date of such termination, cease using any and all
of the subject matter of the license and CLIENT shall promptly deliver to
ONESOFT all copies of any and all of such subject matter and any related
documentation, or shall provide evidence, satisfactory to ONESOFT, that all such
copies have been destroyed.
18. FORCE MAJEURE AND ACTS OF GOD
A party shall be relieved from an obligation (other than the obligation to make
payments) while a cause outside the reasonable control of the party prevents the
performance of such obligation.
19. RELATIONSHIP OF THE PARTIES; CONTENT
(a) Nothing in this Agreement shall be construed as making a party an agent of
the other party, and neither party shall have the power to bind the other party
or to contract in the name of, or create a liability against, the other party.
Neither party shall be responsible for the acts or defaults of the other party
or any of the other party's employees or agents. The parties are independent
contractors with respect to all matters arising under this Agreement. Nothing in
this Agreement shall be deemed to establish a partnership, joint venture,
association or employment relationship between the parties. With respect to its
employees, a party shall remain responsible, and shall indemnify and hold
harmless the other party, for the withholding and payment of all Federal, state
and local personal income, wage, earnings, occupation, social security, worker's
compensation, unemployment, sickness and disability insurance taxes, payroll
levies or employee benefit obligations
(b) If a Scope of Work permits CLIENT to re-sell ONESOFT Services to end-users
then the provisions of this Paragraph 19(b) shall apply to such Services,
however, the CLIENT acknowledges that the Scope of Work still governs the
relationship between ONESOFT and the CLIENT. CLIENT's relationship with any
end-user of the Services that may be distributed by CLIENT shall be governed
solely by an end-user Agreement (made available to ONESOFT upon request) that
provides at least the same protections to ONESOFT as this Agreement and the
Scope of Work provides. Any warranty provided by ONESOFT shall be solely for the
benefit of CLIENT. In no event shall any end-user of CLIENT services be
considered a third party beneficiary of any ONESOFT warranty. CLIENT shall
indemnify and hold ONESOFT harmless from any end- user claim. The CLIENT is
responsible for ensuring that third party end- users of the Services do not
impose unexpected workloads on the Services.
(c) The parties acknowledge that the Internet is neither owned nor controlled by
any one entity and that a third party may gain access to ONESOFT. Electronic
mail and other transmissions passing through ONESOFT or over the Internet are
not secure, and ONESOFT cannot guarantee the security or privacy or any of the
information or communications passing through ONESOFT. ONESOFT agrees to provide
commercially reasonable security consistent with its business practices and
facilities, including (without limitation) access control software,
identification protection, logon passwords and physical site security. In no
event however, will ONESOFT be liable for any loss or damage caused by a breach
of security by a third-party. ONESOFT will not intentionally monitor or disclose
any private electronic communications, except to the extent necessary to
identify or resolve system problems or as otherwise permitted or required by
law. ONESOFT does, however, reserve the right to monitor transmissions, other
than private electronic communications, as necessary to provide the Service and
otherwise to protect the rights and property of ONESOFT. Notwithstanding the
foregoing, ONESOFT does not assume any liability for any action or inaction with
respect to such communication or content posted or provided by an authorized or
unauthorized third party. ONESOFT is a distributor and not a publisher of
CLIENT's data or any other content provided by CLIENT or others (including end
users). Because communication of data and other content over the Internet occurs
in real time, ONESOFT cannot, and does not intend to, screen, police, edit, or
monitor communications and content. If ONESOFT is notified of any content that
allegedly violates its Client Guide, Email Authorized Use Policies, and/or is
otherwise unlawful, ONESOFT may investigate and remove or request the removal of
such content as it deems appropriate in good faith and in its sole discretion.
In no event will ONESOFT be liable for any loss or damage caused by a user's
reliance on any data or other content obtained through ONESOFT
20. FURTHER ASSURANCES
The parties agree to do all such things and to execute such further documents as
may reasonably be required to give full effect to this Agreement.
21. WAIVER
No waiver of any part of this Agreement shall be effective unless made in
writing by the waiving party. No waiver of any breach of this Agreement shall
constitute a waiver of any other breach of the same, or any other provision, of
this Agreement.
22. ENTIRE AGREEMENT AND CONSTRUCTION
This Agreement constitutes the entire agreement between the parties with respect
to the subject matter hereof and the parties agree that there are no other
representations, warranties or oral agreements relating to the subject matter of
this Agreement. Headings are included in the Agreement for convenience only and
shall not affect the meaning or construction of this Agreement's provisions.
23. AMENDMENT
This Agreement may be modified or amended only by means of a writing executed by
both parties.
24. ASSIGNIBILITY AND RESALE
Rights under this Agreement shall not be assigned, sublicensed, encumbered
by security interest or otherwise transferred or resold by CLIENT or ONESOFT
(whether by operation of law or otherwise) without the prior written consent
of the other, and any purported assignment, sublicense, encumbrance or other
transfer of such rights, in violation of this Agreement, shall be void. An
amalgamation, acquisition, or merger of CLIENT by or with any person or
entity who is not a party to this Agreement, but who intends to carry on
substantially the business of the CLIENT, shall not be treated as an
assignment of this Agreement that is subject to the provisions of the next
preceding sentence. Notwithstanding the foregoing, if a Scope of Work so
provides, CLIENT may use the Services under the Scope of Work in support of
its internal business operations and may also distribute such Services to
unrelated third parties for their internal use (by such third party
organization's own personnel) and to ultimate end-users in the public at
large, subject to the terms, conditions and
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OneSoft Corporation The ▇▇▇▇ Group, Inc.
limitations of this Agreement and such Scope of Work, and provided that
CLIENT shall defend, indemnify and hold ONESOFT harmless from all costs
(including reasonable attorneys' fees) arising from any claim by a third
party user such Services. An amalgamation, acquisition, or merger of ONESOFT
by or with any person or entity who is not a party to this Agreement, but
who intends to carry on substantially the business of the ONESOFT, shall not
be treated as an assignment of this Agreement that is subject to the
provisions of this Paragraph.
25. COMPLIANCE WITH LAWS
Each party shall carry out the obligations contemplated by this Agreement and
shall otherwise deal with the subject matter hereof in compliance with all
applicable laws, rules and regulations, of all governmental authorities,
including, without limitation, the Export Act and any other legal restrictions
on exports, and shall obtain all permits and licenses required in connection
with the subject matter hereof.
26. SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of, and be binding upon the parties,
their successors and permitted assigns.
27. SEVERABILITY
If any provision, of this Agreement or a Product Addendum or Schedule or Scope
of Work or Change Order, is held to be unenforceable, all remaining provisions
thereof shall remain in full force and effect.
28. GENERAL PROVISIONS
(a) CLIENT shall not directly or indirectly solicit or offer employment to, or
directly or indirectly accept services by an employee or contractor of ONESOFT,
during the term of this Agreement and for ********* thereafter, without consent
of ONESOFT; provided, however, that if this Agreement is terminated by reason of
a material breach of this Agreement by OneSoft then the provisions of this
sentence shall not apply. For purposes of this Agreement, use of general
employment advertising and independent employment agencies, if not directed at
ONESOFT employees, shall not constitute solicitation.
(b) OneSoft agrees not to offer or sell the Software Product for ******* from
the date of this Agreement to the ********* and/or *********.
(c) Each party (i) agrees to inform the other party of any information made
available to such other party that is classified or restricted data, (ii) if
given such information agrees to comply with the security requirements imposed
by any state or local government, or by the United States Government, and (iii)
if given such information agrees return all copies of such information upon
request.
(d) Each party warrants and represents that its participation in this Agreement
does not conflict with any contractual or other obligation of the party or
create any conflict of interest prohibited by the U.S. Government or any other
governmental authority, and shall promptly notify the other party if any such
conflict arises during the term of this Agreement.
(e) Each party shall maintain commercially reasonable and adequate insurance
protection covering its respective activities hereunder, including coverage for
statutory worker's compensation, comprehensive general liability for bodily
injury and tangible property damage, as well as adequate coverage for vehicles.
Each party shall indemnify and hold the other harmless from liability for bodily
injury, death and tangible property damage resulting from the acts or omissions
of such party, its officers, agents, employees or representatives acting within
the scope of their work.
(e) Paragraphs 1, 2(b) 2(c), 4, 9, 10, and 12 through 30 shall survive any
termination of this Agreement.
29. GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
SUBSTANTIVE LAWS OF THE COMMONWEALTH OF VIRGINIA, EXCLUDING ITS CHOICE OF LAW
RULES. ANY PROCEEDING OR DISPUTE RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY, SHALL BE INITIATED AND MAINTAINED IN COURTS LOCATED IN SUCH
COMMONWEALTH.
30. NOTICES
(a) Any notice or other communication to a party shall be in writing and
delivered to the address below or at such other places as a party may from time
to time specify by notice in writing to the other party.
(b) Point of Contact addresses are as follows:
For ONESOFT: (Technical)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
OneSoft Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
For ONESOFT: (Contractual and Admin.)
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
OneSoft Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
For CLIENT: (Contractual and Admin)
▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
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▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
OneSoft Corporation The ▇▇▇▇ Group, Inc.
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OneSoft Corporation The ▇▇▇▇ Group, Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: General Counsel Title: Chief Operating Officer
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Confidential Information 9