Exhibit 10.18
ALLIANCE AGREEMENT
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IRONSIDE TECHNOLOGIES INC.
("Ironside")
- and -
▇▇▇▇▇▇▇▇-▇▇▇▇, INC.
("Partner")
August 31, 1999
THIS AGREEMENT made as of the 31 day of August, 1999 between Ironside
Technologies Inc. ("Ironside"), a corporation incorporated under the laws of the
Province of Ontario, Canada and ▇▇▇▇▇▇▇▇-▇▇▇▇, Inc. ("Partner"), a corporation
incorporated under the laws of the State of Delaware, witnesseth that:
WHEREAS:
(a) Ironside owns certain software; and,
(b) Partner desires to market and integrate such software upon the terms
and subject to the conditions of this Agreement;
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. In this Agreement, and in all schedules and
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amendments hereto, unless the context otherwise requires, the following words
and phrases shall have the meaning set forth after them:
"Additional Charge" means the charge in accordance with Ironside's standard
rates in effect from time to time.
"Agreement" means this agreement and all schedules and instruments in
amendment or confirmation of it; "hereof", "hereto" and "hereunder" and similar
expressions mean and refer to this Agreement and not to any particular Article,
Section, Subsection or other subdivision; "Article", "Section", "Subsection" or
other subdivision of this Agreement followed by a number means and refers to the
specified Article, Section, Subsection or other subdivision of this Agreement.
"Commencement Date" means the date so specified on Schedule "A" hereto.
"Customer" means a customer who enters into a License in the form attached
hereto as Schedule "B".
"Delivery Site" means the location specified for delivery of Ironware by
Ironside.
"Delivery Timeframe" means the period of time within which Ironware must be
delivered by Ironside to the Delivery Site.
"Documentation" means the "Fahrenheit Product Overview" manual, the
"Fahrenheit Release Notes", the "Fahrenheit Installation and Operations Guide",
the "Gateway Development Guide", the "C Gateway Development Guide", the "ILE/RPG
Gateway Development Guide", and the "Fahrenheit Configuration Manual".
"Initial Term" means the period so specified in Schedule "A".
"Intellectual Properties" shall mean all right, title, interest and benefit
in and to all registered and unregistered trademarks worldwide or trademark
applications, trade or brand names, copyrights, copyright
applications, designs, inventions, discoveries, improvements, patents, patent
applications, patent rights (including any patents issuing on such applications
or rights), technology, steps, processes, and trade secrets.
"Ironware" means the software application system referred to more
specifically in Schedule "A" hereto, and all authorized updates, revisions and
modifications thereto, and the Documentation.
"License" means a software license in the form attached hereto as Schedule
"B"
"Parties" means Ironside, Partner and any other person who may become a
party to this Agreement; and "Party" means any one of them.
"Territory" means the geographical area specified in Schedule "A" in which
Ironware may be marketed and promoted by Partner.
Section 1.2 Gender and Number. Any reference in this Agreement to gender
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shall include all genders, and words importing the singular number only shall
include the plural and vice versa.
Section 1.3 Headings, Fee. The provision of a Table of Contents, the
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division of this Agreement into Articles, Sections, Subsections and other
subdivisions and the insertion of headings are for convenience of reference only
and shall not affect or be utilized in the construction or interpretation of
this Agreement.
Section 1.4 Currency. All references in this Agreement to dollars, unless
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otherwise specifically indicated, are expressed in United States currency.
Section 1.5 Severability. Any Article, Section, Subsection or other
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subdivision of this Agreement or any other provision of this Agreement which is,
or becomes, illegal, invalid or unenforceable shall be severed from this
Agreement and be ineffective to the extent of such illegality, invalidity or
unenforceability and shall not affect or impair the remaining provisions hereof
or thereof.
Section 1.6 Entire Agreement. This Agreement constitutes the entire
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agreement between the Parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the Parties. There are no representations,
warranties, conditions or other agreements, express or implied, statutory or
otherwise, between the Parties in connection with the subject matter of this
Agreement, except as specifically set forth herein and therein.
Section 1.7 Amendments. This Agreement may only be amended, modified or
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supplemented by a written agreement signed by all of the Parties.
Section 1.8 Waiver. No waiver of any of the provisions of this Agreement
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shall be deemed to constitute a waiver of any other provision (whether or not
similar), nor shall such waiver constitute a waiver or continuing waiver unless
otherwise expressly provided in writing duly executed by the Party to be bound
thereby.
Section 1.9 Governing Law. This Agreement shall be governed by and
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interpreted and enforced in accordance with the laws of the Province of Ontario
and the federal laws of the Canada applicable therein.
Section 1.10 Inclusion. Where the word "including" or "includes" is used
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in this Agreement it means "including (or includes) without limitation".
Section 1.11 Incorporation of Schedules. The following are the schedules
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attached to and incorporated in this Agreement:
Schedule "A" - Contract Details
Schedule "B" - License Agreement
ARTICLE 2
APPOINTMENT; RESPONSIBILITIES OF THE PARTIES
Section 2.1 Appointment; License. Ironside hereby grants Partner a non-
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exclusive, non-transferable, royalty-free license in the Territory for the
duration of this Agreement and for the purpose of demonstrating and marketing
Ironware to Customers and potential Customers and integrating Ironware to such
Customers' host business system. For greater certainty, Partner expressly
acknowledges that Partner shall not demonstrate or market or integrate Ironware
except to Customers who shall use Ironware solely for the purpose of processing
their own internal business data in accordance with the terms of the License
attached hereto as Schedule "B" and the Customer shall have no right to sub-
license Ironware. Partner shall use good faith efforts to only market and
integrate Ironware to Customers who will use Ironware only for their internal
business use, but Ironside acknowledges that a Customer's use of Ironware is
beyond Partner's control and thus Ironside's sole and exclusive remedy for such
breach shall be a claim against such Customer.
Section 2.2 Responsibilities of Partner. (1) During the term of this
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Agreement, Partner shall:
(a) use commercially reasonable efforts to market, demonstrate and promote
Ironware in the Territory;
(b) be solely responsible for the installation services and integration of
Ironware into the Customer's host business system provided, however
that nothing in this Agreement shall require Partner to provide
installation or integration services to any Customer or potential
Customer;
(c) be solely responsible for the support and maintenance of such
installation and integration services;
(d) communicate with Ironside sales representatives to develop a territory
coverage plan and individual responsibilities;
(e) use commercially reasonable efforts to ensure that all copies of
Ironware in its possession or control retain such copyright notice as
is furnished by Ironside to Partner from time to time;
(f) act in good faith at all times to Ironside and provide such assistance
and co-operation as Ironside reasonably requests consistent with the
rights and obligations created by this Agreement;
(g) complete the sales training program offered by Ironside;
(h) maintain technical certification through Ironside's Technical
Certification Program at agreed to rates.
Section 2.3 Responsibilities of Ironside. During the term of this
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Agreement, Ironside shall:
(a) provide Partner, at no cost, with adequate copies of the software
application component of Ironware for demonstration purposes, the
Documentation and Ironside's current promotional documentation;
(b) provide Partner, at no cost, with full and accurate information
regarding enhancements and new releases of Ironware as well as
technical support it typically provides to its other partners; and,
(c) develop all such promotional material as may be required to market and
promote Ironware;
(d) communicate with Partner sales representatives to develop a territory
coverage plan and individual responsibilities;
(e) provide Partner, at no cost, with access to Ironside's sales training
program
(f) provide Partner with access to Ironside's Technical Certification
Program at rates that are mutually agreed upon by both parties;
(g) act in good faith at all times to Partner and provide such assistance
and co-operation as Partner reasonably requests consistent with the
rights and obligations created by this Agreement.
ARTICLE 3
LICENSING; DELIVERY; INSTALLATION
Section 3.1 Licensing. (1) The Customer shall execute a License in the
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form specified in Schedule "B". Ironside reserves the right to amend the
software license fees, end user fees, and annual maintenance fees set forth in
Schedule "A" hereto from time to time upon providing thirty (30) days prior
written notice of such change to Partner, and any such change shall become
effective upon the expiration of such thirty (30) day period. Ironworks is a
trade ▇▇▇▇ of ▇▇▇▇▇▇▇▇. All such rights, title and ownership in the trade ▇▇▇▇
shall at all times remain solely and exclusively with Ironside, and Partner
shall not take any action inconsistent with such rights, title and ownership.
Section 3.2 Delivery of Ironware. Ironside shall deliver Ironware to the
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Customer at the Delivery Site within the Delivery Timeframe.
Section 3.3 Installation. Ironside shall not be responsible for any
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aspect of the installation or integration of Ironworks. Such services shall be
provided by Partner to Customer pursuant to a separate agreement between such
parties.
ARTICLE 4
BILLING
Section 4.1 Customer Billing. Ironside shall invoice the Customer in
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respect of any License for Ironware. Customer shall be responsible for all
License, End User, Maintenance, and other fees in connection with Ironware, and
Partner shall have no liability to Ironside to Ironside for such fees.
ARTICLE 5
TRAINING AND CURRENT INFORMATION
Section 5.1 Training. (1) Ironside shall provide Partner and its relevant
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sales and technical personnel with such training in the use and marketing and
integration of Ironware as Ironside reasonably considers necessary in order to
facilitate the marketing and integration of Ironware.
(2) Ironside shall supply the training referred to in Section 5.1 hereof at
such locations and at such times as it shall determine, acting reasonably.
Technical training referred to in section 5.1 shall be provided to Partner at
rates in accordance with Section 2.3(f).
Section 5.2 Current Information. Ironside shall keep Partner supplied
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with current information regarding enhancements or updates to Ironware.
ARTICLE 6
TERM AND TERMINATION
Section 6.1 Term. This Agreement will commence on the Commencement Date
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and shall continue for the Initial Term as specified on Schedule "A", and shall
be automatically renewed on an annual basis thereafter, unless otherwise
terminated in accordance with this Agreement.
Section 6.2 Default Termination. If either Party shall be in breach of
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its obligations under this Agreement (the "Defaulting Party"), the Party not in
breach (the "Non-Defaulting Party") shall give written notice to the Defaulting
Party stating the nature of the breach with reference to the Agreement and
setting out a period of time that is reasonable in the circumstances within
which the Defaulting Party must cure its breach. If the Defaulting Party has
not cured or is not, in the reasonable judgment of the Non-Defaulting Party,
actively and diligently seeking to cure the said default by the end of the time
period stated in such notice, the Non-Defaulting Party shall have the right to
terminate this Agreement immediately upon delivering a second written notice to
this effect to the Defaulting Party. Such termination shall be without
prejudice to any other rights of the parties in law or in equity.
Section 6.3 Automatic Termination. (1) This Agreement may be terminated
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by a Party (the "Terminating Party") upon written notice to the other Party (the
"Breaching Party") upon the occurrence of any of the following:
(a) disclosure of the trade secrets of the Terminating Party by the
Breaching Party, whether directly, indirectly, inadvertently or
otherwise by the Breaching Party;
(b) violation of the Intellectual Properties of the Terminating Party,
including without limitation in the case of Ironside, any instance on
the part of Partner of making copies of Ironware or using Ironware
other than as set forth in Section 2.1 of this Agreement;
(c) cessation of business by the Breaching Party;
(d) the Breaching Party makes an assignment of its business for the
benefit of creditors or is adjudicated a bankrupt;
(e) a petition of bankruptcy is filed by or against the Breaching Party or
a receiver, trustee in bankruptcy, or similar officer is appointed to
take charge of the Breaching Party's property, which petition is not
dismissed within 60 days; or
The Terminating Party shall provide written notice to the Breaching Party
detailing the cause of its grounds for termination pursuant to this Section 6.3.
The effect of delivery by a Terminating Party of such notice is that this
Agreement shall forthwith be terminated upon receipt of such notice by the
Breaching Party.
Section 6.4 Reciprocal Right of Termination. (1) Either Party may
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terminate this Agreement any time by giving a minimum of 45 days prior notice to
the other party.
(2) Upon receipt of a notice of termination pursuant to Section 6.4(1), the
receiving Party shall promptly cease all marketing of Ironware pursuant to the
terms of this Agreement, and in the case of Partner shall promptly deliver to
Ironside all materials provided to Partner by Ironside pursuant to this
Agreement, including without limitation, any Ironware or Documentation.
Section 6.5 Termination Effect.
(3) Upon a valid termination of this Agreement for any reason whatsoever in
accordance with this Article 6, neither party shall have any obligation to the
other for compensation or for damages of any kind resulting from such
termination, whether on account of the loss by a Party of present or prospective
sales, investments or goodwill, and each Party hereby waives any rights which
may be granted to it by statute or otherwise which are not granted to it by this
Agreement.
(4) Any termination of this Agreement shall be without prejudice to any
other rights or remedies to which Ironside or Partner may be entitled hereunder
or at law or equity and shall not affect any accrued rights or the coming into
or continuance in force of any provision hereof which is expressly or by
implication intended to come into or continue in force on or after such
termination.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
Section 7.1 Ironside. Ironside represents and warrants to Partner, with
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the intent that same be relied upon and shall survive the execution of this
Agreement:
Corporate Matters
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(a) Due Incorporation. Ironside is a corporation incorporated and existing
under the laws of the Province of Ontario.
(b) Authorization. Ironside has the requisite power to enter into this
Agreement and to carry out its obligations hereunder. This Agreement
has been duly authorized, executed and delivered by Ironside and
constitutes a valid and binding agreement of Ironside enforceable in
accordance with its terms, except to the extent that its
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors'
rights generally or by general equitable principles.
(c) Authority; Clear Title. Ironside has the full right, power and
authority to enter into and perform this Agreement and to grant to and
vest in Partner all of the rights herein set forth. Ironside is the
owner or authorized licensee of the Intellectual Properties relating
to Ironware.
(d) No Infringement. Ironside has not negligently or intentionally
interfered with, infringed upon, misappropriated, or otherwise come
into conflict with any Intellectual Property rights of third parties.
Section 7.2 Partner. Partner represents and warrants to Ironside, with
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the intent that same be relied upon by Ironside and shall survive the execution
of this Agreement:
Corporate Matters
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(a) Due Incorporation. Partner is a corporation incorporated and existing
under the laws of State of Illinois.
(b) Authorization. Partner has the requisite power to enter into this
Agreement and to carry out its obligations hereunder. This Agreement
has been duly authorized, executed and delivered by Partner and
constitutes a valid and binding agreement of Partner enforceable in
accordance with its terms except to the extent that its enforceability
may be limited by applicable bankruptcy, insolvency, reorganization or
other laws affecting the enforcement of creditors' rights generally or
by general equitable principles.
(c) Authority. Partner has the full right, power and authority to enter
into and perform this Agreement.
(d) Technical Competency. Partner's relevant representatives are
conversant with the technical language of computer products in
general. Partner hereby warrants that its relevant representatives
shall develop sufficient knowledge of Ironware and of Ironside's
competitor's products to be able to explain in detail the difference
to Customers and potential Customers.
Section 7.3 Further Assurances. Each of the parties will use reasonable
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commercial efforts to take all actions and to do all things necessary, proper or
advisable to consummate and make effective the transactions contemplated by this
Agreement.
Section 7.4 Dealings with Ironware. Partner shall not sell, license,
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lease, transfer or otherwise deal with Ironware, except as specifically provided
in this Agreement. Partner shall not market or promote Ironware except as set
forth in the Documentation and written promotional material delivered to Partner
by Ironside in accordance with Section 2.3 hereof.
Section 7.5 Warranty Exclusion. (1) IRONSIDE AND PARTNER ACKNOWLEDGE AND
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AGREE THAT THIS AGREEMENT PROVIDES LICENSES AND SERVICES AND IS NOT A SALE OF
GOODS.
(2) THE WARRANTIES CONTAINED IN SECTION 7.1 ARE IN LIEU OF ALL OTHER
WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY,
FITNESS FOR A PARTICULAR PURPOSE, OR INFRINGEMENT OR THOSE ARISING BY STATUTE OR
OTHERWISE IN LAW OR FROM THE COURSE OF DEALING OR USAGE OF TRADE.
IRONSIDE DOES NOT REPRESENT OR WARRANT THAT IRONWARE WILL MEET ANY OR ALL OF THE
CUSTOMER'S PARTICULAR REQUIREMENTS, THAT THE OPERATION OF IRONWARE WILL OPERATE
ERROR-FREE OR UNINTERRUPTED, OR THAT ALL PROGRAMMING ERRORS IN IRONWARE CAN BE
FOUND IN ORDER TO BE CORRECTED.
(3) The parties agree that this Agreement is not subject to and shall not
be interpreted by the United Nations Convention on Contracts for the
International Sale of Goods.
Section 7.6 Disclaimers.
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(1) IN NO EVENT WILL EITHER PARTY OR ITS DIRECTORS, OFFICERS, EMPLOYEES OR
SHAREHOLDERS BE LIABLE IN RESPECT OF INCIDENTAL, ORDINARY, PUNITIVE, EXEMPLARY,
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS REVENUE, LOST PROFITS,
FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF DATA, OR LOSS OF BUSINESS
OPPORTUNITY
ARTICLE 8
INDEMNITIES
Section 8.1 Indemnification by Ironside. Ironside agrees to indemnify,
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defend and hold Partner harmless from and against any loss, cost, damage,
liability, expense (including reasonable attorney's fees) or claim suffered or
incurred by Partner in connection with any infringement claim made by a third
party, provided however that Partner permits Ironside to defend, compromise or
settle such claim of infringement as Ironside in its sole discretion may
determine, and reasonably cooperates with Ironside in connection with such
defense, and further provided any such claim of infringement does not depend
upon the use of Ironware in conjunction with software not developed or licensed
by Ironside or other products not licensed or developed by Ironside or upon a
use of Ironware in an unusual or unintended manner. Partner shall have the
right to participate in such defense at its own expense.
ARTICLE 9
CONFIDENTIALITY
Section 9.1 Confidential Information. (1) The Parties agree that the
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Confidential Information (as such term is defined below) of the other Party
shall be kept confidential and shall not be:
(a) used by a Party (the "Receiving Party") or by any of its directors,
officers, employees, agents, solicitors, accountants or financial
advisors (collectively the "Representatives") except in accordance
with the terms of this Agreement; and,
(b) disclosed by the Receiving Party or by any of its Representatives in
any manner whatsoever in whole or in part, except in accordance with
the terms of this Agreement, without the prior written consent of the
other Party.
(2) "Confidential Information" in regards to Ironside means Ironware, the
Documentation, any information provided by Ironside to Partner about Ironware,
or any information, including Ironworks pricing, contained in this Agreement.
"Confidential Information" in regards to Partner shall mean any non-public
information disclosed by Partner to Ironside, including sales information.
Section 9.2 Use of Confidential Information. The Receiving Party may
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transmit the Confidential Information to its Representatives, but only to the
extent that such Representatives:
(a) need to know the Confidential Information for the purpose of
facilitating this Agreement;
(b) are informed by the Receiving Party of the confidential nature of the
Confidential Information; and
(c) agree in writing to be bound by the terms of a confidentiality
agreement with the Receiving Party substantially in accordance with
the terms of this Agreement.
Section 9.3 Applicability. This Agreement shall not apply to such
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portions of the Confidential Information which:
(a) are or become generally available to the public other than as a result
of a disclosure in violation of this Agreement;
(b) becomes available the Receiving Party on a non-confidential basis from
a source other than the other Party or its Representatives, provided
that such a source is not bound by a confidentiality agreement with
the other Party or its Representatives or otherwise prohibited from
transmitting the Confidential Information to the Receiving Party by a
contractual, legal or fiduciary obligation;
(c) were known to the Receiving Party on a non-confidential basis prior to
its disclosure;
(d) are independently developed by the Receiving Party without reference
to the Confidential Information; or
(e) the Receiving Party is obligated to disclose pursuant to statutory or
regulatory requirements or an order of a court of competent
jurisdiction.
Section 9.4 Survivorship. The provisions of this Article 9 shall survive
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any termination of this Agreement for a period of five (5) years or, if shorter,
the longest period of time permitted under applicable law.
ARTICLE 10
INTELLECTUAL PROPERTY RIGHTS
Section 10.1 Ironside's Proprietary Rights. Ironside is the owner or
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authorized licensee in respect of all Intellectual Properties applicable to
Ironware, and all future releases and versions thereof, and such rights, title
and ownership shall at all times remain solely and exclusively with Ironside,
and Partner shall not take any action inconsistent with such rights, title and
ownership.
Section 10.2 Trade Marks. Except as expressly provided hereto, no license
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or other right is granted by Ironside to Partner to use a trade ▇▇▇▇, trade name
or service ▇▇▇▇ of the Ironside without Ironside's prior written permission.
ARTICLE 11
ARBITRATION
Section 11.1 Best Endeavors to Settle Disputes. In the event of any
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dispute, claim, question or difference relating to this Agreement, or the
validity or termination of this Agreement the parties involved in the dispute,
claim, question or difference shall use their best endeavors to settle such
dispute, claim question or difference. To this effect, they shall consult and
negotiate with each other, in good faith and understanding of their mutual
interests, to reach a just and equitable solution satisfactory to such parties.
Section 11.2 Arbitration. Except as is expressly provided in this
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Agreement, if the parties involved in the dispute do not reach a solution after
reasonable efforts to do so pursuant to Section 11.1, then upon written notice
by any Party to the other, such dispute shall be finally settled by arbitration.
Such arbitration shall be conducted in accordance with the International
Arbitration Rules (the "Rules") of the American Arbitration Association (the
"AAA") except as such Rules are superseded by this Agreement. The decision or
award of the arbitrator shall be in writing, binding upon the parties, and shall
be enforceable by judgement entered in any court of competent jurisdiction.
Section 11.3 Arbitration Procedure. Any arbitration commenced by a Party
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pursuant to Section 11.2 shall be based upon the following:
(a) the arbitration tribunal shall consist of one neutral arbitrator
appointed by mutual agreement of the parties involved who is qualified
by education and training to pass upon the particular matter to be
decided, or in the event of failure to agree within 30 business days
after referral of the dispute to arbitration, either Party may apply
to the AAA administrator to appoint an arbitrator in accordance with
the Rules;
(b) the arbitrator shall be instructed that time is of the essence in
proceeding with his/her determination of the dispute and, in any
event, the arbitrator shall endeavor to render a decision and award
within 90 days of the final appointment of the arbitrator;
(c) the arbitration shall take place in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, unless the
parties mutually agree, in writing, upon a different location;
(d) the law to be applied in connection with the arbitration shall be as
set forth in Section 1.9 hereof;
(e) the arbitration award shall deal with the question of costs of
arbitration and all matters related thereto.
Section 11.4 Injunctive Relief. Nothing in this Article 8 shall prevent a
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Party from seeking injunctive relief in connection with this Agreement at any
time prior to or during the pendency of any proceedings set forth in Sections
11.1 through 11.3 hereof.
ARTICLE 12
GENERAL
Section 12.1 Notice. (1) Any notice required to be given under this
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Agreement shall be in writing and shall be sufficiently given (i) if delivered
personally or (ii) if mailed (other than during any disruption of
postal services) by registered mail, postage prepaid and addressed to the
relevant Party as indicated below or (iii) if given by electronic means by
forwarding to the Party's fax number.
(2) Any such notice shall be deemed to have been given and to have been
received when delivered, if so delivered, on the second business day after the
date of mailing (other than during any disruption of postal services), if so
mailed, and on the date such notice was sent, if so given by electronic means:
If to Ironside, at:
Ironside Technologies Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Or, if to Partner, at:
▇▇▇▇▇▇▇▇-▇▇▇▇, Inc.
Corporate Headquarters
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Section 12.2 Further Assurances. Each Party shall do such acts and shall
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execute such further documents, conveyances, deeds, assignments, transfers and
the like, and will cause the doing of such acts and will cause the execution of
such further documents as are within its powers as any other Party may in
writing at any time and from time to time reasonably request be done or
executed, in order to give full effect to the provisions of this Agreement.
Section 12.3 Assignment. Neither Party shall assign this Agreement
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without the prior written consent of the other Party except that either Party
may assign this Agreement to an affiliate as defined in the Canada Business
Corporations Act without the consent of the other.
Section 12.4 Enurement. This Agreement shall enure to the benefit of and
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be binding upon the Parties and their respective successors and permitted
assigns.
Section 12.5 Independent Contractors. In giving effect to this Agreement,
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no Party shall be or be deemed an agent or employee of the other Party for any
purpose and their relationship to each other shall be that of independent
contractors. Nothing in this Agreement shall constitute a partnership or a
joint venture between the Parties. No Party shall have the right to enter into
contracts or pledge the credit of or incur expenses or liabilities on behalf of
the other Party.
Section 12.6 Time of Essence. Time shall be of the essence hereof.
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Section 12.7 Force Majeure. Except as expressly provided otherwise in
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this Agreement, dates and times by which a Party is required to render
performance under this Agreement shall be postponed automatically to the extent
and for the period of time that such Party is prevented from meeting them by
reason of any cause beyond its reasonable control. The Party prevented from
rendering performance must, however, notify the other Party immediately and in
detail of the commencement and nature of such cause and the probable
consequences thereof. Such Party must use its best efforts to render
performance in a timely
manner utilizing to such end all resources reasonably required in the
circumstances, including obtaining supplies or services from other sources if
same are reasonably available. Should such delay occur, payment of money, where
applicable, shall correspondingly be delayed.
Section 12.8 Counterparts. This Agreement and any amendment hereto may be
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executed in one or more counterparts, each of which shall be deemed to be an
original by the Party executing such counterpart, but all of which shall be
considered one and the same instrument.
Section 12.9 Construction. This Agreement has been negotiated by
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Ironside, Partner and their respective legal counsel, and legal or equitable
principles that might require the construction of this Agreement or any
provision of this Agreement against the Party drafting this Agreement will not
apply in any construction or interpretation of this Agreement.
IN WITNESS WHEREOF this Agreement is executed by both Parties on the 16 day of
September, 1999.
Ironside Technologies Inc. ▇▇▇▇▇▇▇▇-▇▇▇▇, Inc.
By: /s/ ▇.▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Authorized Signing Officer) (Authorized Signing Officer)
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________________ _______________________________________
(Print Name) (Print Name)
President & CFO President
_________________________________ _______________________________________
(Title) (Title)
SCHEDULE "A"
CONTRACT DETAILS
Commencement Date: August 31,1999 Initial Term: 12 months
Licensed Product: Ironworks Territory: Worldwide
Licensed Product Documentation:
The following documentation is available from the Ironside website at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ in the "Developers Only" section:
ILE / RPG Gateway Development Guide
C Gateway Development Guide
Fahrenheit Release Notes
Gateway Development Guide
Fahrenheit Configuration Guide
Fahrenheit Installation and Operations Guide
Fahrenheit Product Overview
Fahrenheit - Document Index
IRONWORKS LICENSE FEES
----------------------
-----------------------------------------------------------------------------------------------------------------
Ironworks Software License Fee:
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
Single User Service $25,000
Each additional User Service $10,000
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Ironworks End User License Fees:
-----------------------------------------------------------------------------------------------------------------
Net Price Ironworks
__________________?
# of User ID's and End User License Total End User __________________?
Passwords Fee License Fee __________________?
-----------------------------------------------------------------------------------------------------------------
50 $750 $ 37,500
250 $400 $100,000
500 $250 $125,000
1,000 $150 $150,000
2,000 $100 $200,000
3,000 $ 70 $210,000
4,000 $ 55 $220,000
5,000 $ 45 $225,000
10,000 $ 25 $250,000
Unlimited Quote Quote
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Ironworks Development Kit (IDK) License Fee
-----------------------------------------------------------------------------------------------------------------
Ironworks Development Kit (IDK) License Fee $25,000
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Annual Maintenance Fees
-----------------------------------------------------------------------------------------------------------------
Ironworks Annual Maintenance Fee:
Annual Maintenance Fee = (Software License Fee + End User License Fee) *15%
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
Ironworks + Ironworks Development Kit (IDK) Annual Maintenance Fee:
Annual Maintenance Fee = (Software License Fee + End User License Fee + IDK License Fee) = 21%
-----------------------------------------------------------------------------------------------------------------
Annual Maintenance Fee charges commence in the first year of license.
Annual Maintenance Fees, in respect of each license of Ironware, are due to Ironside upon the anniversary of
each such license. Ironside may adjust the Annual Maintenance Fee upon 30 days written notice.
-----------------------------------------------------------------------------------------------------------------
SCHEDULE "B"
LICENSE
SOFTWARE LICENSE AGREEMENT
SOFTWARE LICENSE AGREEMENT
between
IRONSIDE TECHNOLOGIES INC.
("Ironside")
and
-------------------------------------------
("Customer")
--------------------
Date
By signing this Agreement, Licensor agrees to license to Customer the use
of the object code of the software application system detailed more specifically
in Schedule "A" hereto, and all updates, revisions and modifications thereto
(the "Software"), as well as all ancillary and related Documentation (as defined
herein) for its operation (collectively, the Software, and the Documentation are
referred to herein as "Ironware") and to provide education and additional
services to Customer, all in accordance with and subject to the terms and
conditions of this Agreement. By signing this Agreement, Customer agrees to
accept such license and services, and to pay fees and expenses, all in
accordance with the terms and conditions of this Agreement.
Section 1.1 Grant of License. (1) In consideration of the Customer's
----------------
promises contained herein and the Customer's payment of the software license fee
(the "Software License Fee"), the end user license fee (the "End User License
Fee") and the annual maintenance fee (the "Annual Maintenance Fee") listed on
Schedule "A" to this Agreement, Ironside grants to Customer, and Customer
accepts, subject to the terms and conditions set out in this Agreement, a non-
exclusive, non-transferable, perpetual license (the "License") to use Ironware
only at the location(s) and on the computer(s) order management system that
resides on the Host System Serial Number (the "Host System Serial #") of the
Customer indicated on Schedule "A" hereto and solely for the purpose of
processing the Customer's own internal business data. The Customer acknowledges
that an additional license is required for use of Ironware other than as set out
herein. The Customer shall have no right to sub-license, sell, lease, assign
(by operation of law or otherwise), or transfer a license of Ironware to any
third party, without the prior written consent of Ironside.
(2) Title to and ownership of all rights in and to Ironware, including
copyright and all other intellectual property rights, shall at all times remain
with Ironside.
Section 1.2 Licensed Use. Ironware shall be used by Customer only as
------------
specified in this Agreement and the Schedules attached hereto. Ironware shall
not be copied by Customer and Customer shall not allow Ironware to be copied,
controlled, or used by others without the express, written permission of
Ironside. Ironware may be used only by Customer, and the Customer shall not use
Ironware for commercial timesharing or service bureau or other rental or sharing
arrangements. Ironware may be used by the Customer only at the location and on
the Host System Serial # in which they are first installed and may only be moved
to another location or another Host System Serial # by the Customer with the
prior, written permission of Ironside which shall not be unreasonably withheld.
The Customer agrees to notify Ironside immediately of any unauthorized
possession or use of Ironware.
Section 1.3 Audit. (1) The Customer shall not issue end user
-----
identifications or passwords of Ironware to its clients in excess of the number
for which this License permits, as specified in Schedule "A" herein. The
Customer shall inform Ironside of the location of each site operating Ironware
and the number of end-users of Ironware for each such site, and such particulars
shall be recorded in Schedule "A" hereto.
(2) Ironside may at any time review, at its own expense, the equipment and
records of the Customer pertaining to its license of Ironware for the purpose of
verifying that the Customer has not issued end user identifications or passwords
of Ironware to its clients in excess of the number for which this License
permits as specified on Schedule "A" hereto, and that the Customer has not
installed Ironware on a Host System Serial # or at a location other that as this
License permits, as specified in Schedule "A" hereto. Any such examination
shall occur on not less than three days' notice, and, at the place where the
Customer keeps its equipment or records to be examined. If as a consequence of
an examination, any payments are found to be due to Ironside, the Customer shall
(i) forthwith deliver a certified check for the outstanding amount to Ironside
in respect of such outstanding and, (ii) reimburse Ironside for its reasonable
expenses incurred in respect of this examination.
Section 2.1 Development and Support Services. In consideration of the
--------------------------------
payment of the Annual Maintenance Fee, the Development and Support Services
outlined in Section 2.1(1), 2.1(2), and 2.1(3) below shall be provided to
Customer.
(1) Ironside shall be responsible for the development and enhancement of
Ironware and for all costs incurred in connection therewith.
(2) Ironside shall determine which internet world wide web browsers run the
Java programming language and which command a market share of greater than 15%
of the internet browser market. Such browsers will be addled to the list of
approved interned world wide web browsers, attached hereto as Schedule "C".
Browsers which no longer have a 15% market share, as determined by Ironside
acting reasonably, may be removed from the supported list at Ironside's
discretion and thereafter Ironside shall have no responsibility to enhance
Ironware to support such browsers so removed. Ironside shall provide Customer
with at least 60 days written notice of any browsers that shall be moved from
the list of supported browsers. Ironside will take all reasonable efforts to
modify Ironware, if necessary, to permit a world wide web browser to operate on
Ironware within 60 days from the date that such browser is placed on the
supported list. Any such modification to Ironware shall be shipped to the
Customer in accordance with Section 3.2.
(3) Telephone support services are provided to the Customer during regular
business hours (8:30 a.m. - 5:00 p.m. Eastern Time Zone, Monday - Friday).
Telephone support includes at no additional charge telephone and research time
performed by the Helpline staff as well as Electronic Customer Support which
provides Customer with limited on-line access to certain Ironside information,
such access being provided on an as-is basis and with the understanding that
Customer will not tamper with or abuse Ironside's systems or data. Note,
however, that Helpline Support does NOT cover training, setup of hardware or
software, and programming consultation. Additional time of coverage may be
available by written agreement of the parties and at Ironside's then current
prices, terms and conditions. The Customer shall not tamper with, abuse or
misuse Ironside's systems or data.
(4) At the request of the Customer or if Ironside determines that it cannot
diagnose, verify or remedy by remote means any significant error, malfunction or
defect in Ironware, Ironside shall provide qualified personnel to Customer's
site within three (3) days of such request or determination for the purpose of
correcting same. In the event Ironside dispatches personnel to the Customer's
site, the Customer shall be responsible for payment of such Ironside personnel's
travel and living expenses within thirty (30) days of receipt of Ironside's
invoice to Customer for such expenses.
(5) Upon thirty (30) days notice to Customer prior to the anniversary of
this Agreement, Ironside may increase the Annual Maintenance Fees in respect of
the services described in this Section 2.1 hereof. Ironside agrees not to
increase its Annual Maintenance Fee by more than six percent (6%) of the dollar
amount charged in the previous year.
Section 2.2 Professional Services. At the request of the Customer,
---------------------
Ironside may provide professional services for applications development, graphic
design and HTML page creation, installation, training and other services for the
rates as specified in schedule "B" hereto or at Ironside's then published
professional service rates.
Section 3.1 Payment Terms. (1) In consideration of the license granted
-------------
hereunder, the Customer shall pay to Ironside on a non-refundable basis, except
as provided in Section 6.1(5), the Software License
Fee, the End User License Fee and the Annual Maintenance Fee listed on Schedule
"A", and Customer shall make such payments in accordance with the time frames
set out in this Section 3.1 and in Schedule "A".
(2) The Customer agrees to pay all amounts due under this Agreement within
thirty (30) days of receipt of invoice. Customer shall have thirty (30) days
after such date to contest to good faith the amounts and items charged. Past-
due uncontested amounts will bear interest (i) of one and one-half percent
(1.5%) per month from the due date or (ii) the highest rate permitted by law, if
less. The Customer shall also pay all costs and expenses, including reasonable
legal fees and expenses incurred by Ironside in connection with collecting
overdue amounts. Ironside reserves the right to increase the fees in respect of
the professional services described herein upon ninety (90) days notice. If any
amounts remain unpaid for thirty (30) days or more, Ironside may place Customer
on "credit hold" until such amounts are paid. The effect of placing a Customer
on "credit hold" is that Ironside may withhold the software services described
in Section 2.1, including without limitation withholding any new release of
Ironware, any upgrades to Ironware with respect to internet world wide web
browsers, and telephone support services.
Section 3.2 Delivery of Ironware, Hardware. (1) Ironside shall deliver
------------------------------
the Software and any modifications thereto to the Customer on CD-ROM via courier
or via the internet, as the Customer may elect. Additionally, Ironside shall
deliver an "Ironside Powered Server Product Overview", "Ironside Powered Server
Configuration Manual", "Ironside Powered Server Gateway Development Guide",
"Ironside Powered Server Documentation Index", "C Gateway Development", "ILE/RPG
Gateway Development", "Ironside Powered Server for NT Release Notes", "Ironside
Powered Server for NT Installation and Operations Guide", "Ironside Powered
Server for AS400 Release Notes", "Ironside Powered Server for AS400 Installation
and Operations Guide" (collectively, referred to hereinafter as amended from
time to time as the "Documentation") and any modifications thereto, to the
Customer via courier.
(2) In the event the Customer requires a dongle hardware device, Ironside
shall be responsible for costs incurred in respect of the delivery of all orders
by the Customer for such dongle hardware device.
Section 3.3 Source Code Escrow Agreement. Forthwith upon execution of
----------------------------
this Agreement, Ironside shall enroll the Customer as a beneficiary in a source
code escrow agreement in respect of Ironware.
Section 3.4 Taxes. The Customer shall be responsible for all taxes
-----
including sales, use, property, excise, value added and gross receipts levied on
this Agreement or Ironware. Customer agrees that if any of the foregoing are
paid by Ironside, Customer shall immediately reimburse Ironside for the amount
paid plus any expenses incurred in connection therewith and interest thereon.
In the event that Customer is required by any applicable law to deduct any
amount from the amounts to be paid to Ironside under this Agreement on account
of withholding taxes or any other taxes or levies of any kind, Customer agrees
that it shall pay all such additional amounts so that the net amounts received
by Ironside are the amount specified herein.
Section 4.1 Proprietary Rights. (1) The Customer hereby covenants that it
------------------
shall not, and shall not permit others within its control, to copy or duplicate
Ironware or the Documentation.
The Customer acknowledges that Ironware provided under this Agreement have
substantial monetary value and are considered TRADE SECRET, PROPRIETARY and/or
CONFIDENTIAL material of Ironside, and that Ironside retains ownership of all
rights, title and interest to its Ironware. All enhancements and modifications
made by Ironside will remain proprietary to Ironside.
(2) The Customer acknowledges that Ironware bears a copyright legend which
in no way reduces the TRADE SECRET, PROPRIETARY, and/or CONFIDENTIAL nature of
Ironware. Ironware shall be considered Confidential Information under the terms
of Article 5 hereof.
Section 4.2 Reverse Engineering Proprietary Notices. The Customer shall
---------------------------------------
not: (a) reverse-engineer, decompile or alter Ironware or any part thereof; (b)
distribute Ironware or any part thereof to any third parties; and, (c) remove
the copyright, trade secret or other proprietary legends or notices which appear
on Ironware.
Section 5.1 Ironside Information. (1) "Confidential Information" means
--------------------
Ironware and any information provided by Ironside to the Customer about Ironware
stamped "confidential" or identified as such in writing.
(2) Customer agrees that the Confidential Information shall be kept
confidential and shall not be used or disclosed by Customer or by any of its
directors, officers, employees, agents, solicitors, accountants or financial
advisors (collectively the "Representatives") except in accordance with the
terms of this Agreement.
(3) Customer may transmit the Confidential Information to its
Representatives, but only to the extent that such Representatives: (a) need to
know the Confidential Information for the purpose of facilitating this
Agreement; (b) are informed by Customer of the confidential nature of the
Confidential Information; and (c) agree in writing to be bound by a
confidentiality agreement with Ironside and Customer on terms substantially the
same as those set forth in this Agreement.
(4) The confidentiality provisions of this Agreement shall not apply to
such portions of the Confidential Information which: (a) are or become
generally available to the public other than as a result of a disclosure in
violation of this Agreement; (b) becomes available to the Customer on a non-
confidential basis from a source other than Ironside or its Representatives,
provided that such a source is not bound by a confidentiality agreement with
Ironside or its Representatives or otherwise prohibited from transmitting the
Confidential Information to the customer by a contractual, legal or fiduciary
obligation; (c) was known to the Customer on a non-confidential basis prior to
its disclosure by Ironside; (d) is independently developed by the Customer
without reference to the Confidential Information; or (e) the Customer is
obligated to disclose pursuant to statutory or regulatory requirements or an
order of a court of competent jurisdiction.
Section 5.2 Public Announcements. Neither party shall publicly announce
--------------------
or disclose the existence of this Agreement or its terms and conditions, or
advertise or release any publicity regarding this Agreement, without the prior
written consent of the other party. Each of Ironside and the Customer may use
the name of the other in any public disclosure and as a reference in its
respective sales calls and in its customer lists and the use of such name shall
be consistent with good business practices. All use of names shall bare
Trademark notification as requested by either party.
Section 6.1 Ironware Warranty. (1) Ironside warrants to Customer that it
-----------------
has full power and authority to grant the rights herein without the consent of
any other person, and that the license of Ironware granted pursuant to this
Agreement does not infringe any valid or subsisting Canadian or U.S. patent,
copyright or other intellectual property not owned or licensed by Ironside.
(2) Ironside warrants that the Software will perform substantially in
accordance with the Documentation. Ironside will provide reasonable assistance
to the Customer in attempting to correct or bypass any material defects or
errors in the Software in order that the Software operates substantially in
accordance with the Documentation. Such services are provided in consideration
of the Annual Maintenance Fee. In the event that a defect reported by the
Customer proves in fact to be a hardware, operating system or ocher problem not
attributable to the Software, then the Customer shall pay Ironside's
professional services rates, as detailed in Schedule "B".
(3) Ironside warrants that the Documentation is accurate in all material
respects; however, the Customer acknowledges that the Software is subject to
continued revision and may, at times, be at variance with the Documentation and
accordingly, may contain miner defects or errors.
(4) Customer must specifically identify to Ironside the nature of any
perceived Software defect which causes the Software not to conform substantially
to the functional specifications and specifically describe the conditions under
which the perceived defect occurs. On Ironside's request, Customer shall
deliver such information in written form. Customer shall provide Ironside with
sufficient test time and support to duplicate the problem, verify the problem is
with the Software, and confirm that the problem has been corrected.
(5) Should Ironside fail to correct or bypass any material defects or
errors in the Software at any time during the term of this Agreement such that
the Software fails to operate substantially in accordance with the
Documentation, the Customer's sole and exclusive remedy shall be to terminate
this Agreement by written notice and according to the termination provisions
hereof, and receive a refund of such Annual Maintenance Fees actually paid by
the Customer to Ironside during the then current license year. Notice of such
termination must be received by Ironside within ten (10) days following the date
upon which Ironside failed to correct or bypass the material defect or error in
the Software, such that the Software fails to operate substantially in
accordance with the Documentation. IN NO EVENT SHALL IRONSIDE BE LIABLE
HEREUNDER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
(INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS), RESULTING FROM ANY BREACH OF
ANY REPRESENTATION, WARRANTY OR COVENANT IN THIS AGREEMENT OR OTHERWISE ARISING
UNDER CONTRACT, OR BY OPERATION OF LAW.
(6) The Software is designed to manage data involving dates including
single-century and multi-century transactions, and will not cause an abnormally
ending scenario within the application or generate incorrect values or invalid
results involving either single-century or multi-century transactions, provided
at all times that all century dates transmitted to the Software from any host
computer are accurately transmitted in a four digit date format (for example
2001).
Section 6.2 Warranty Obligations Limitations. Ironside's warranty
--------------------------------
obligations set forth in Section 6.1 shall be void in the event of any of the
following occurring: (a) the Customer modifies Ironware without the prior
written consent of Ironside; (b) the Customer attempts to use the Software in a
manner or under conditions other than those specified by Ironside in the
Documentation attached hereto as Schedule C; (c) the release of Software that
Customer is operating is no longer current, meaning a release of Ironware that
has been replaced by a new release of Ironware for more than ninety (90) days;
(d) any failure of Ironware is due to the misuse or negligence of any person
other than Ironside, its employees or agents; (e) the non-payment of a Software
License Fee, the End User License Fee or the Annual Maintenance Fee for more
than thirty (30) days after the date such payment is due; (f) a claim of
infringement is made against Ironware and Ironside elects to terminate this
Agreement pursuant to Section 6.4.
Section 6.3 Warranty Exclusion. (1) IRONSIDE AND CUSTOMER ACKNOWLEDGE AND
------------------
AGREE THAT THIS AGREEMENT PROVIDES LICENSES AND SERVICES AND IS NOT A SALE OF
GOODS.
(2) The parties agree that this Agreement is not subject to and shall not
be interpreted by the United Nations Convention on Contracts for the
International Sale of Goods.
(3) THE WARRANTIES CONTAINED IN SECTION 6.1 ARE IN LIEU OF ALL OTHER
WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY,
FITNESS FOR A PARTICULAR PURPOSE, OR INFRINGEMENT OR THOSE ARISING BY STATUTE OR
OTHERWISE IN LAW OR FROM THE COURSE OF DEALING OR USAGE OF TRADE. IRONSIDE DOES
NOT REPRESENT OR WARRANT THAT IRONWARE WILL MEET ANY OR ALL OF THE CUSTOMER'S
PARTICULAR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL OPERATE ERROR-
FREE OR UNINTERRUPTED, OR THAT ALL PROGRAMMING ERRORS IN THE SOFTWARE CAN BE
FOUND IN ORDER TO BE CORRECTED.
Section 6.4 Infringement. (1) If any Ironware is in Ironside's opinion
------------
likely to or does become the subject of a claim for intellectual property
infringement, Ironside, at its sole option, shall: (a) procure for the
Customer, at Ironside's expense, the right to continue to use Ironware; (b)
replace or modify Ironware, at Ironside's expense, so that Ironware becomes non-
infringing; or (c) terminate the Agreement and return the pro-rata amount of the
Customer's Annual Maintenance Fees in respect of the current license year in the
event that Ironside considers neither (a) or (b) are reasonably feasible.
(2) THE FOREGOING STATES THE ENTIRE LIABILITY OF IRONSIDE WITH RESPECT TO
CLAIMS BY THE CUSTOMER FOR INTELLECTUAL PROPERTY INFRINGEMENT, AND EXCEPT AS
PROVIDED IN THIS SECTION, IRONSIDE SHALL HAVE NO LIABILITY TO CUSTOMER
WHATSOEVER FOR ANY LOSS OR DAMAGE OR INFRINGEMENT CLAIMS AGAINST CUSTOMER BY
THIRD PARTIES ARISING OUT OF OR RELATED TO ANY ALLEGATION OR DETERMINATION THAT
CUSTOMER'S USE OF IRONWARE INFRINGES ANY COPYRIGHT OR OTHER PROPRIETARY OR
INTELLECTUAL PROPERTY RIGHT. If requested by Ironside, Customer shall give
Ironside complete authority for the defense of any claim of copyright
infringement.
Section 6.5 Limitation of Liability. IRONSIDE'S LIABILITY FOR ANY BREACH
-----------------------
OF THE REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS OR FOR ANY OF THE
OTHER PROVISION OF THIS AGENT, OR FOR ANY OTHER BREACH GIVING RISE TO LIABILITY,
INCLUDING A BREACH OF A CONDITION OR FUNDAMENTAL BREACH OR BREACHES, OR IN ANY
OTHER WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY CAUSE OF ACTION
WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION (INCLUDING BREACH OF CONTRACT,
STRICT LIABILITY, TORT, INCLUDING NEGLIGENCE OR ANOTHER LEGAL OR EQUITABLE
THEORY), SHALL BE LIMITED TO THE CUSTOMER'S ACTUAL, DIRECT, PROVABLE DAMAGES IN
AN AMOUNT NOT TO EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO IRONSIDE IN RESPECT OF
THE SOFTWARE LICENSE FEE, THE END USER LICENSE FEE AND THE ANNUAL MAINTENANCE
FEE. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT IN NO EVENT WILL IRONSIDE BE
LIABLE FOR DAMAGES IN RESPECT OF INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED T0, LOST BUSINESS
REVENUE, LOST PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF DATA, LOSS
OF
BUSINESS OPPORTUNITY, EVEN IF IRONSIDE HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT IN NO EVENT WILL
IRONSIDE'S DIRECTORS, OFFICERS, EMPLOYEES OR SHAREHOLDERS BE LIABLE FOR ANY
DAMAGES, INCLUDING DIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL,
CONSEQUENTIAL OR ANY OTHER DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
Section 6.6 Indemnification, Remedies: (1) The Customer shall indemnify
-------------------------
and save Ironside and its directors, officers, employees and representatives (in
respect of whom Ironside hereby acts as agent and trustee) harmless of and from
any loss or expense, (including reasonable attorney's fees) suffered by, imposed
upon or asserted against Ironside by any third party as a result of, in respect
of, connected with or arising out of, under or pursuant to (i) any breach of
covenants of Section 4.1, Section 4.2, Section 5.1 or (ii) any failure of the
Customer to perform or observe the Customer's confidentiality obligations set
forth in this Agreement.
(2) The Customer agrees that a breach of the confidentiality obligations
set forth in this Agreement may cause immediate and irreparable monetary damage
to Ironside and shall entitle Ironside to seek injunctive relief in addition to
all other remedies.
Section 6.7 Indemnification. Ironside agrees to indemnify, defend and
---------------
hold Customer harmless from and against any loss, cost, damage, liability, or
expense (including reasonable attorney's fees) suffered or incurred by Customer
in connection with any infringement claim made by a third party, provided
however that Customer permits Ironside to defend, compromise or settle such
claim of infringement as Ironside in its sole discretion may determine, and
provides Ironside all available information, assistance and authority to enable
Ironside to do so, and further provided any such claim of infringement does not
depend upon the use of Ironware in conjunction with software not developed or
licensed by Ironside or other products not licensed or developed by Ironside or
upon a use of Ironware in an unusual or unintended manner.
Section 7.1 Term. This Agreement shall become effective upon execution by
----
all Parties. and shall continue in effect in perpetuity, unless otherwise
terminated in accordance with the terms of this Agreement.
Section 7.2 Termination for Cause. If either Party shall be in breach of
---------------------
its obligations under this Agreement (the "Defaulting Party"). the Party not in
breach (the "Non-Defaulting Party") shall give notice to the Defaulting Party
stating the nature of the breach with reference to the Agreement and setting out
a period of time that is reasonable in the circumstances within which the
Defaulting Party must cure its breach. If the Defaulting Party has not cured or
is not, in the reasonable judgment of the Non-Defaulting Party, actively and
diligently seeking to cure the said default by the end of the time period stated
in such notice, the Non-Defaulting Party shall have the right to terminate this
Agreement immediately upon delivering a second notice to this effect to the
Defaulting Party. Such termination shall be without prejudice to any other
rights of the parties in law or in equity.
Section 7.3 Termination by Ironside. (1) This Agreement may be forthwith
-----------------------
terminated by Ironside upon the occurrence of any of the following: (a) a
petition or receiving order or winding up order or similar order is issued in
respect of the Customer under the laws of any jurisdiction; (b) the Customer
makes a general assignment for the benefit of its creditors; (c) a receiver or
trustee in bankruptcy is appointed with respect to the business or property of
the Customer; (d) proceedings are initiated under any applicable insolvency or
similar law for the purpose of bankruptcy, reorganization, or liquidation of the
Customer; (e) the Customer breaches its covenants set forth in Section 4.1 and
Section 4.2; or (f) the Customer breaches
the confidentiality provisions set forth in Section 5; or, (g) the Customer
breaches its covenants set forth in Section 3.1.
(2) Ironside shall provide Customer with written notice detailing the cause
of its grounds for termination pursuant to Section 7.3. The effect of delivery
by Ironside of such notice is that this Agreement shall forthwith be terminated
upon receipt of such notice by the Customer. Upon such termination, except in
respect of termination pursuant to Section 7.3(1)(g), any license granted
pursuant to this Agreement shall be immediately revoked and all Ironware and
supporting materials shall forthwith be returned to Ironside by the Customer or
destroyed by the Customer, as Ironside may direct. The Customer shall provide
Ironside with an affidavit certifying the destruction of Ironware and supporting
materials. The effect of Ironside providing the Customer with a termination
notice pursuant to Section 7.3 is that this Agreement shall be terminated and
Ironside shall have no further obligations to the Customer.
(3) Any termination of this Agreement pursuant to Section 7.3 shall be
without prejudice to any other rights or remedies to which Ironside may be
entitled hereunder or at law and shall not affect any accrued rights or the
coming into or continuance in force of any provision hereof which is expressly
or by implication intended to come into or continue in force on or after such
termination.
(4) Upon termination of this Agreement pursuant to Section 7.2. Section
7.3(1)(a), (b), (c), (d), (e), (f), or (g) the customer shall forthwith return
the dongle and Ironware to Ironside and shall have no further right to use
Ironware.
Section 7.4 Termination by the Customer. (1) This Agreement may be
---------------------------
forthwith terminated by the Customer upon the occurrence of any of the
following: (a) a petition or receiving order or winding tip order or similar
order is issued in respect of Ironside under the laws of any jurisdiction; (b)
Ironside makes a general assignment for the benefit of its creditors; (c) a
receiver or trustee in bankruptcy is appointed with respect to the business or
property of Ironside; or (d) proceedings are initiated under any applicable
insolvency or similar law for the purpose of bankruptcy, reorganization, or
liquidation of Ironside.
The Customer shall provide Ironside with written notice detailing the cause
of its grounds for termination pursuant to this Section 7.4. The effect of
delivery by the Customer of such notice is that this Agreement shall forthwith
be terminated upon receipt of such notice by Ironside. Upon such termination,
the Customer may access the source code, pursuant to the terms of the source
code escrow agreement.
(2) The Customer may terminate this Agreement and the licenses granted
hereunder by giving Ironside ninety (90) days written notice at any time on or
after the second anniversary of the date of execution of this Agreement and the
customer shall leave no obligation to pay any Annual Maintenance fees
thereafter.
Section 8.1 Arbitration. Except as is expressly provided in this
-----------
Agreement, if the patties involved in the dispute do not reach a solution after
reasonable efforts to do so pursuant to Section 8.1, then upon written notice by
any parry to the other, such dispute shall be finally sealed by arbitration.
Such arbitration shall be conducted in accordance with the International
Arbitration Rules (the "Rules") of the America Arbitration Association (the
"AAA") except as such Rules ate superseded by this Agreement. The decision or
award of the arbitrator shall be in writing, binding upon the parties, and shall
be enforceable by judgement entered in any court of competent jurisdiction.
Section 8.2 Arbitration Procedure. Any arbitration commenced by a party
---------------------
pursuant to Section 8.2 shall be based upon the following:
(a) the arbitration tribunal shall consist of one arbitrator appointed by
mutual agreement of the parties involved who is qualified by education
and training to pass upon the particular matter to be decided, or in
the event of failure to agree within 30 business days after referral
of the dispute to arbitration, either party may apply to the AAA
administrator to appoint an arbitrator in accordance with the Rules;
(b) the arbitrator shall be instructed that time is of the essence in
proceeding with his/her determination of the dispute and, in any
event, the arbitrator shall endeavor to render a decision and award
within 60 days of the final appointment of the arbitrator;
(c) the arbitration shall take place in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, unless the
parties mutually agree, in writing, upon a different location;
(d) the law to be applied in connection with the arbitration shall be as
set forth in Section 9.6 hereof; and,
(e) judgment upon the award rendered may be entered in any court of
competent jurisdiction, or, application may be made to such court for
a judicial recognition of the award or an order of enforcement
thereof, as the case may be; and,
(f) the arbitration award shall deal with the question of costs of
arbitration and all matters related thereto.
Section 8.3 Injunctive Relief. Nothing in this Article 8 shall prevent a
-----------------
party from seeking injunctive relief in connection with this Agreement at any
time prior to or during the pendency of any proceedings set forth in Sections
8.1 through 8.2 hereof.
Section 9.1 Currency. All references in this Agreement or any Schedule to
--------
dollars, unless otherwise specifically indicated, are expressed in the currency
of the United States of America.
Section 9.2 Severability. Article or Section, Subsection or other
------------
subdivision of this Agreement or any other provision of this Agreement which is,
or becomes, illegal, invalid or unenforceable shall be severed from this
Agreement and be ineffective to the extent of such illegality, invalidity or
unenforceability and shall not affect or impair the retraining provisions hereof
or thereof.
Section 9.3 Entire Agreement. This Agreement constitutes the entire
----------------
agreement between the Parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the Parties. There are no representations,
warranties, conditions or other agreements, express or implied, statutory or
otherwise, between the Parties in connection with the subject matter of this
Agreement, except as specifically set forth herein and therein.
Section 9.4 Amendments. This Agreement may only be amended, modified or
----------
supplemented by a written agreement signed by all of the Parties.
Section 9.5 Waiver. No waiver of any of the provisions of this Agreement
------
shall be deemed to constitute a waiver of any other provision (whether or not
similar), nor shall such waiver constitute a waiver or continuing waiver unless
otherwise expressly provided in writing duly executed by the party to be bound
thereby.
Section 9.6 Governing Law. This Agreement shall be governed by and
-------------
interpreted and enforced in accordance with the laws of the State of Delaware.
Section 9.7 Incorporation of Schedules. The following are the schedules
--------------------------
attached to and incorporated in this Agreement:
Schedule A - Fees and License Particulars
Schedule B - Professional Services
Schedule C - Documentation; Approved Browsers
Section 9.8 Enurement. This Agreement shall enure to the benefit of and
---------
be binding upon the Parties and their respective successors and permitted
assigns.
Section 9.9 Force Majeure. Except as expressly provided otherwise in this
-------------
Agreement, dates and tittles by which a party is required to render performance
under this Agreement shall be postponed automatically to the extent and for the
period of time that such party is prevented from meeting them by reason of any
cause beyond its reasonable control. The party prevented from rendering
performance must, however, notify the other party immediately and in detail of
the commencement and nature of such cause and the probable consequences thereof.
Such party must use its best efforts to render performance in a timely manner
utilizing to such end all resources reasonably required in the circumstances,
including obtaining supplies or services from other sources if same are
reasonably available. Should such delay occur, payment of money, where
applicable, shall correspondingly be delayed.
Section 9.10 Counterparts. This Agreement and any amendment hereto may be
------------
executed in one or more counterparts, each of which shall be deemed to be an
original by the party executing such counterpart, but all of which shall be
considered one and the same instrument.
Section 9.11 Indefinite Duration. Each of the Parties agree that certain
-------------------
rights and obligations in this Agreement are intended to be of an indefinite
duration, and shall not expire or terminate except as otherwise provided in this
Agreement, or as the Parties may otherwise agree in writing.
Section 9.12 Survivorship. The provisions of Article 4.1, 4.2, 5.1. 5.2,
------------
6.6. and 8.3 shall survive any termination of this Agreement for a period of
three (3) years or, if shorter, the longest period of time permitted under
applicable law.
Section 9.13 Non-Solicitation. Party acknowledges that they shall not
----------------
hire or attempt to hire, induce or attempt to induce, solicit or attempt to
solicit, any of the employees of the other Party. Should any employee of one of
the Parties be hired by the other Party, the hiring Party shall pay an amount of
200% of the salary of the person hired to the other Party.
Section 9.14 Notice. (1) Any notice required to be given under this
------
Agreement shall be in writing and shall be sufficiently given (i) if delivered
personally or (ii) if mailed (other than during any disruption of postal
services) by registered mail, postage prepaid and addressed to the relevant
party as indicated below or (iii) if given by electronic means by forwarding to
the party's fax number. (2) Any such notice shall be deemed to have been given
and to have been received when delivered, if so delivered, on the second
business day after the date of mailing (other than during any disruption of
postal services), if so mailed and on the date such notice was sent, if so given
by electronic means:
If to Ironside, at:
Ironside Technologies Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Secretary
Or, if to Customer, at:
_________________________
_________________________
_________________________
IN WITNESS WHEREOF this Agreement is executed by the Parties on the ____
day of _____________, 1999.
[Customer]
Per:_______________________________________
(Authorized Signing Officer)
_________________________________
(Print or Type Name)
_________________________________
(Title)
Ironside Technologies Inc.
Per: ______________________________
(Authorized Signing Officer)
_________________________________
(Print or Type Name)
_________________________________
(Title)
SCHEDULE "A"
LICENSE FEES AND PARTICULARS
Date:_____________________________
Customer Name:____________________
Customer Address: __________________
__________________
__________________
Host System Serial #:
---------------------------------------------------------------------------------------------------------------------
Licensed Products # of User Services # Users End User License Software License Annual
Fee Fee Maintenance Fee
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
SOFTWARE LICENSE FEE:_____________________ (Plus taxes where
applicable)
END USER LICENSE FEE $_____________________ (Plus taxes where
applicable)
ANNUAL. MAINTENANCE FEE:________________ (Plus taxes where applicable)
Each Ironworks "User Service" provides access to an order management system on a
single Host System Serial # for the customers of a single corporate entity.
Software License Fee - Customer agrees to pay Ironside 100% of the Software
License Fee upon execution of this Agreement.
End User License Fee - In addition to the Software License Fee, Customer agrees
to pay Ironside 50% of the End User License Fee upon execution of this Agreement
and the remaining 50% of the End User License Fee on or before
______________________, 19__.
Annual Maintenance Fee - The initial Annual Maintenance Fee is due to Ironside
on ________________, 19__. Customer agrees to pay Ironside 100% of the Annual
Maintenance fee upon each anniversary of this agreement. The Annual Maintenance
Fee may be increased annually by Ironside by providing the Customer with notice
not less than thirty (30) days prior to the end of an anniversary of this
Agreement. Ironside agrees not to increase its Annual Maintenance Fee by more
than six percent (6%) of the dollar amount charged in the previous year.
Software Services provide program updates and new system versions, as well as
new releases of Internet Browsers. These updates become part of the Licensed
Products and include at no additional charge the time incurred to evaluate
program problems, correct program errors, copy the program from Ironside's
computer, a mail/delivery charges. Perfect compatibility for blending old and
new versions cannot be assured. Helpline Support provides unlimited telephone
support during the business hours of (8:30 am. - 5:00 p.m. Eastern Time Zone,
Monday-Friday). This support includes at no additional charge telephone and
research time
performed by the Helpline staff. Helpline Support also includes Electronic
Customer Support which provides Customer with limited on-line access to certain
Ironside information, such access being provided on an as-is basis and with the
understanding that Customer will not tamper with or abuse Ironside's systems or
data. Note, however, that Helpline Support does NOT cover training, setup of
hardware or software, and programming consultation. Additional time of coverage
may be available by written agreement of the parties and at Ironside's then
current prices, terms and conditions.
[Customer] Ironside Technologies Inc.
Per:__________________________ Per:__________________________
(Authorized Signing Officer) (Authorized Signing Officer)
_____________________________ ______________________________
(Print or Type Name) (Print or Type Name)
________________________ ______________________________
(Title) (Title)
--------------------------------------------------------------------------------
SCHEDULE "B"
PROFESSIONAL SERVICES
--------------------------------------------------------------------------------
Nature of support services Rate per hour
-------------------------- -------------
Gateway Application Development $300
Installation support $250
Education and training $250
Graphic artist $250
HTML page creation $250
Network support $250
Implementation consulting $300
SCHEDULE "C"
DOCUMENTATION
The following documentation is available from the Ironside website at
http//▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ in the "Developers Only" section:
Ironside Powered Server Product Overview
Ironside Powered Server Configuration Manual
Ironside Powered Server Gateway Development Guide
Ironside Powered Server Documentation Index
C Gateway Development
ILE/RPG Gateway Development
Ironside Powered Server for NT Release Notes
Ironside Powered Server for NT Installation and Operations Guide
Ironside Powered Server for AS400 Release Notes
Ironside Powered Server for AS400 installation and Operations Guide
APPROVED BROWSERS
BETA VERSIONS NOT SUPPORTED
---------------------------
Microsoft:
---------
Internet Explorer 3.0, 3.01, 3.02, 4.0 for Windows 95 and Windows NT
Internet Explorer 3.02 for Windows 3.1
Internet Explorer 4.0 for Windows 98
Netscape:
--------
Navigator 2.0, 2.02, 3.0, 3.01, 4.01, 4.02, 4.03 for Windows 95 and
Windows NT
Navigator 4.05 and 4.06 for Windows 98