EXHIBIT 10.2
New Atlanta
JAVA SERVLET TECHNOLOGY LEADERS
SERVLETEXEC RESELLER AGREEMENT
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THIS AGREEMENT is made and entered into this 15 day of Dec., 1998, by and
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between New Atlanta Communications, LLC, a Georgia limited liability company
("NAC") and ThinWeb Software Corporation, a Canada company ("Reseller").
WHEREAS, Reseller markets a software product called "WebCrumbs" and may
develop and market other software products in the future ("Products"); and
WHEREAS, NAC has developed a software product called "ServletExec"; and
WHEREAS, NAC and Reseller desire to enter into a contractual arrangement
under which Reseller will acquire the right to license and market ServletExec in
connection with the sale of its Products;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereby agree as follows:
1. NAC hereby grants to Reseller during the term of this Agreement a
nonexclusive right to license and a privilege to market, sell, and distribute
ServletExec, Version 2.0 (the "License") subject to the conditions set forth in
this Agreement.
2. The License shall be granted to Reseller for the marketing, sale, and
distribution of ServletExec to customers of Reseller, so long as ServletExec is
bundled with Reseller's Products. Reseller shall not have the right to license
the use of ServletExec in any other manner, including, but not limited to, its
use as a standalone product.
3. NAC shall provide Reseller with the source code for the installation
scripts for ServletExec for all supported servers, which Reseller may use and/or
modify for integrated installation of the Products with ServletExec. NAC shall
provide technical assistance to Reseller in modifying the installation scripts.
4. a. Reseller shall have the right to purchase the License from NAC for
use with WebCrumbs version 1.0 in accordance with the following schedule:
A bundle of 50 Licenses -$1,000
b. Reseller shall have the right to purchase the License from NAC for
use with WebCrumbs version 2.0, and other software products that may be
developed and marketed in the future in accordance with the following pricing
schedule:
(1) A bundle of 20 Licenses - $3,900
(2) A bundle of 50 Licenses - $8,500
(3) A bundle of 100 Licenses - $14,500
(4) A unlimited number of Licenses, so long as any such License is sold
and distributed within 3 years after the execution date of this
Agreement - $90,000
b. At any time during the term of this Agreement, Reseller shall have
the right to up-grade to the unlimited License option under Section 4.a.(4) by
paying NAC an amount equal to the difference between the price for the unlimited
License option and the price for the License options previously purchased by
Reseller under Section 4 prior to such upgrade.
c. The pricing terms set forth in this Section 4 shall continue to
apply to any upgrades of the ServletExec Version 2.x series made by NAC during
the term of this Agreement. Customers of Reseller shall be entitled to receive
free of charge any upgrades to the ServletExec Version 2.x series made by NAC
during the term of this Agreement.
5. If at any time during the term of this Agreement Reseller markets,
sells, or distributes WebCrumbs version 2.0 without bundling ServletExec 2.0 as
provided herein, this Agreement will immediately be terminated, and Reseller
will pay the sum of $10,000 to NAC as liquidated damages.
6. NAC shall provide technical support to Reseller and Reseller's
customers as is customarily provided by NAC to ServletExec retail customers.
Currently, NAC provides unlimited support to such customers for ServletExec
installation and configuration problems via telephone and email during normal
business hours (9:00 am to 6:00 pm EST).
7. Reseller agrees to perform such services which NAC may reasonably
request to assist in the marketing and sales of ServletExec to customers of
Reseller.
8. NAC shall have the right to identity Reseller as a customer and
licensee of ServletExec software in NAC's marketing literature, including press
releases. This shall include the right to display Licensee's corporate logo on
NAC's web site. Such marketing material and use of Licensee's logo shall require
the prior approval of Licensee; such approval shall not be unreasonably
withheld.
9. This Agreement shall have a term of one (1) year beginning on February
1, 1999 and ending on January 31, 2000. This Agreement shall automatically
renew for an additional one (1) year term, unless Reseller gives NAC written
notice of its intent not to renew this Agreement at least thirty (30) days prior
to the expiration of the initial one (1) year term. The pricing terms set forth
in Section 4 shall remain in effect during such renewal term; provided that the
cost of any
Licenses purchased during the initial term under Sections 4.a.(1)-(3) shall not
be credited against the cost of an upgrade under Section 4.a (4) if such option
is exercised during the renewal term. If the unlimited License option under
Section 4.a (4) is exercised during the renewal term, the 3 year period for
selling and distributing such Licenses shall begin on the commencement date of
the renewal term.
10. Payments for Licenses under the terms of this Agreement shall be made
prior to the transfer of any Licenses purchased hereunder. NAC will deliver
ServletExec serial numbers in the appropriate quantities to Reseller within two
(2) business days after receipt of payment. For unlimited licenses under Section
4.a.(4), NAC shall deliver an initial quantity of 300 serial numbers; subsequent
quantities of 300 serial numbers shall be delivered within two (2) business days
of receipt of a written request from Reseller.
11. Reseller agrees to include a copy of NAC's license agreement of
ServletExec with each shipment and sale of such product and further agrees to
take such steps as may be necessary to insure that its customers comply with the
terms and conditions of such license agreement.
12. Reseller agrees to keep all of the terms and conditions of this
Agreement confidential and shall not disclose any provision of this Agreement to
any other party without the prior written consent of NAC. This confidentiality
provision shall remain in full force and effect subsequent to the termination
of this Agreement.
13. a. Reseller acknowledges that NAC may disclose to Reseller certain
Confidential Information during the course of Reseller's activities pursuant to
this Agreement. Reseller acknowledges and agrees that the Confidential
Information is the sole and exclusive property of NAC and that NAC owns all
property rights related thereto. Reseller acknowledges and agrees that the
disclosure of the Confidential Information to Reseller does not confer upon
Reseller any license, interest, or rights of any kind in or to the Confidential
Information except as otherwise provided in this Agreement.
b. Except as otherwise provided in this Agreement, Reseller will hold
in confidence and not use, reproduce, distribute, transmit, reverse engineer,
decompile, disassemble, or transfer, indirectly or directly, in any form, or for
any purpose, the Confidential Information made available to Reseller under this
Agreement, without the prior written consent of NAC.
C. To the extent that Confidential Information constitutes a trade
secret under applicable law, the obligations of Reseller with respect to the
Confidential Information shall remain in effect for as long as such information
shall remain a trade secret under applicable law. To the extent such
Confidential Information does not constitute a trade secret, its obligations
with regard to the Confidential Information shall remain in effect during the
term of this Agreement and for two years thereafter. Such obligations shall not
apply if and to the extent that (1) Reseller establishes that the information
communicated was already known to Reseller, without obligation to keep it
confidential, at the time of its receipt from NAC; (2) Reseller establishes that
the information communicated was received by Reseller in good faith from a third
party lawfully in
possession thereof and having no obligation to keep such information
confidential; or (3) Reseller establishes that the information communicated was
publicly known at the time of its receipt by Reseller or has become publicly
known other than by a breach of this Agreement or other action by Reseller.
d. Confidential Information shall include, but is not limited to,
trade secrets, customer or account lists, supplier lists, pricing information,
receipts, financial information relating to NAC's business, marketing
arrangements, strategic plans, and any other information and data relating to
the business of NAC which is disclosed to Reseller by NAC as a consequence of or
through its relationship with NAC and which has value to NAC and is not
generally known by its competitors.
14. This Agreement may be terminated by either party upon giving the other
party at least 30 days prior written notice to the addresses listed below if the
other party materially breaches any of the terms and conditions of this
Agreement and such breach is not cured within 30 days of receipt of written
notice describing the breach. No such termination shall affect any rights or
obligations which arise hereunder prior to such termination.
15. All notices or other communications made pursuant to this Agreement
shall be given in writing by registered or certified mail which shall be
addressed to the following addresses (or to such other addresses as may have
been provided by the parties subsequent to the execution of this Agreement):
New Atlanta Communications, LLC ____________________________
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ____________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ____________________________
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ____________________________
Unless otherwise specifically provided herein, each such notice or communication
shall be deemed given at the time it is mailed by certified mail, return receipt
requested, postage prepaid, in any post office or branch post office regularly
maintained by the United States Government.
16. Subject to paragraph 17 below, the ServletExec software provided by
NAC to Reseller is provided on an "as is" basis, without any warranty of any
kind, either express or implied, including, but not limited to, the implied
warranties of merchantability and fitness for a particular purpose. NAC's
liability, if any, shall be limited to the price paid by Reseller for the
License granted to its customer for the ServletExec software and in no event
will NAC be liable to Reseller or to any other person for any damages,
including incidental or consequential damages, arising out of the use or
inability to use the ServletExec software, or any other program, data, material,
or information provided by NAC under this Agreement.
17. Notwithstanding anything to the contrary in paragraph 16 above, NAC
agrees to indemnify and hold Reseller harmless from any and all claims or causes
of action, including any
and all costs, expenses and attorney's fees related thereto, asserting that
ServletExec (including any upgrades, updates or new releases thereof) as
delivered by NAC to Reseller or as bundled by Reseller with the Products
infringes any proprietary rights of any third party.
18. Except to the extent that NAC would be obligated to indemnify Reseller
pursuant to paragraph 17 above, Reseller agrees to indemnify and hold NAC
harmless from any claims or cause of action, including any costs, expenses, and
attorney's fees related thereto, brought against NAC by any party with respect
to any matter arising under this Agreement, including, but not limited to, the
bundling and sale or distribution by Reseller of ServletExec with its Products.
19. All of the terms, covenants, agreements, and conditions herein
contained shall be binding upon and shall inure to the benefit of the parties
hereto, and their respective successors, assigns, and legal representatives.
20. This Agreement shall be governed by and construed in accordance with
the laws of the State of Georgia in all respects.
21. If any provision of this Agreement, or the application thereof to any
person or circumstances shall, for any reason and to any extent, be invalid and
unenforceable, the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected thereby, but
rather shall be enforced to the greatest extent permitted by law.
IN WITNESS WHEREOF, the parties hereby execute this Agreement on the day
and year first above written.
RESELLER NEW ATLANTA COMMUNICATIONS, LLC
By: By:
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Printed Name: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: VP Technology President